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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 20-F
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
for the fiscal year ended December 31, 2025
Commission File Number 1-15132
Grupo Aeroportuario del Sureste, S.A.B. de C.V. |
(Exact name of registrant as specified in its charter) |
Southeast Airport Group |
United Mexican States |
(Translation of registrant’s name into English) |
(Jurisdiction of incorporation or organization) |
Bosque de Alisos No. 47A – 4th Floor
Bosques de las Lomas
05120 Ciudad de México
Mexico
(Address of principal executive offices)
Adolfo Castro Rivas
CEO
Grupo Aeroportuario del Sureste, S.A.B. de C.V.
Bosque de Alisos No. 47A – 4th Floor
Bosques de las Lomas
05120 Ciudad de México
México
Telephone: + 52 55 5284 0408
acastro@asur.com.mx
(Name, telephone, e-mail and/or facsimile number
and address of company contact person)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
Title of each class: |
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Trading Symbol(s): |
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Name of each exchange on |
Series B Shares, without par value, or shares |
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New York Stock Exchange, Inc.* |
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American Depositary Shares, as evidenced by American Depositary Receipts, or ADSs, |
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ASR |
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New York Stock Exchange, Inc. |
*Not for trading, but only in connection with the registration of American Depositary Shares, pursuant to the requirements of the Securities and Exchange Commission.
Securities registered or to be registered pursuant to Section 12(g) of the Act: None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: N/A
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report:
Series B Shares, without par value: 277,050,000 |
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Series BB Shares, without par value: 22,950,000 |
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
Yes ☒ No ☐
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. Yes ☐ No ☒
Note: Checking the box above will not relieve any registrant required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 from their obligations under those Sections.
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act, (Check one):
Large accelerated filer ☒ |
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Accelerated filer ☐ |
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Non-accelerated filer ☐ |
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Emerging growth company ☐ |
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act. ☐
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
U.S. GAAP ☐ |
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IFRS ☒ |
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Other ☐ |
If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow. Item 17 ☐ Item 18 ☐
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
Item 1. Identity of Directors, Senior Management and Advisers |
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34 |
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Item 11. Quantitative and Qualitative Disclosures About Market Risk |
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Item 12. Description of Securities Other Than Equity Securities |
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Item 14. Material Modifications to the Rights of Security Holders and Use of Proceeds |
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Item 16A. Audit and Corporate Practices Committee Financial Expert |
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Item 16D. Exemptions from the Listing Standards for Audit and Corporate Practices Committees |
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Item 16E. Purchases of Equity Securities by the Issuer and Affiliated Purchasers |
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i
PART I
Item 1.Identity of Directors, Senior Management and Advisers
Not applicable.
Item 2.Offer Statistics and Expected Timetable
Not applicable.
Item 3.Key Information
RISK FACTORS
Risks Related to Our Operations
Economic, political and regulatory developments in the United States may adversely affect our operations in Mexico.
Changes in economic, political and regulatory conditions in the United States or in laws and policies governing foreign trade could create uncertainty in the international markets and could have a negative impact on the Mexican economy. Economic conditions in Mexico are highly correlated with economic conditions in the United States. This correlation is due, in part, to the high degree of economic activity between the two countries generally, including the trade facilitated by the United States-Mexico-Canada Agreement (“USMCA”), as well as physical proximity. In 2025 and continuing into 2026, the administration of U.S. President Donald Trump has imposed and maintained a series of tariffs on various trading partners, including so-called reciprocal tariffs on all countries other than Canada and Mexico, tariffs on Mexican and Canadian goods that do not satisfy the U.S.-Mexico-Canada Agreement (USMCA), higher tariffs on China, and still higher tariffs on other products, including steel, aluminum, copper and automobiles. The medium-and long-term direction of U.S. trade policy, including the implementation of additional tariffs and removal of existing ones, remains uncertain, but any additional tariffs imposed on Mexican products could potentially have an adverse impact on the competitiveness of such products in U.S. markets.
Further, President Trump has continued to increase the enforcement efforts in connection with immigration policy, which have led to mass deportations, raids, the suspension of certain humanitarian assistance programs and increased costs and conditions for certain visa applications for immigrants in the United States. New immigration legislation could lead to uncertain economic conditions in Mexico that may affect leisure travel, including travel to and from Mexico. Such restrictions could have a material adverse effect on passenger traffic results at our Mexican airports. Any attempt by President Trump to implement changes to United States-Mexico policy, including actions to withdraw from or materially modify USMCA and to implement immigration reform, could have a material adverse effect on our business, financial condition or results of operations.
While the Mexican and U.S. governments have been able to reach an understanding in the past, we cannot assure you that such understanding will remain in place or that the U.S. government will not impose policies on Mexico in the future and that we will not be materially adversely affected by such policies in the future.
Changes in U.S. immigration and border policy could adversely affect passenger traffic to and from Mexico and Colombia.
The results of presidential and congressional action in the United States could result in significant changes in, and uncertainty with respect to, immigration and border policy. Immigration reform, especially with respect to Mexico, continues to attract significant attention in the public arena and U.S. Congress, and most importantly under President Trump’s administration. In 2025, President Trump increased immigration enforcement and detention and enacted several executive orders restricting immigration status and benefits. If new federal immigration legislation is enacted, such laws may contain provisions that could make it more difficult for Mexican and Colombian citizens to travel between Mexico and Colombia, and the United States. Such restrictions could have a material adverse effect on our passenger traffic results.
1
Our business could be adversely affected by a downturn in the economies of, or changes in the relationship between, the United States, Mexico and Colombia.
The air travel industry, and consequently, our results of operations, are substantially influenced by economic conditions in Mexico, Colombia and the United States. In 2023, 2024 and 2025, 61.8%, 62.2% and 61.3%, respectively, of the international passengers in our Mexican airports arrived or departed on flights originating in or departing to the United States. 51.5%, 52.8% and 52.4% of our revenues from Mexican passenger charges in 2023, 2024 and 2025, respectively, were derived from charges imposed on international passengers. Similarly, in 2023, 2024 and 2025, 48.9%, 47.8% and 48.5%, respectively, of passengers in our Mexican airports traveled on Mexican domestic flights. In 2023, 2024 and 2025, 48.5%, 47.2%, and 47.6% respectively, of our revenues from Mexican passenger charges were derived from Mexican domestic passenger charges. When the economies of either the United States or Mexico are in recession, the number of international passengers in our Mexican airports that arrive or depart on flights originating in or departing to the United States have been adversely affected. Similarly, a recession of the Colombian economy could cause the number of Colombian domestic passengers in our Colombian airports to decline. In 2023, 2024, and 2025, 30.8%, 31.9%, and 28.0% respectively, of our revenues from Colombian passenger charges were derived from Colombian domestic passenger charges.
We cannot predict how economic conditions in the United States (including as a result of the change in the U.S administration) may develop in the future or how these conditions will affect tourism and travel decisions. See “Item 3. Key Information—Risk Factors— Risks Related to Mexico— The change in the U.S. administration and the assumption of Mr. Donald J. Trump as President of the United States could create further uncertainty for relations between Mexico and the United States, and could have a material adverse effect on our business, financial condition and results of operations. In addition, whether destinations served by our airports will be viewed as adequate substitutes for other tourist destinations depends on a number of factors, including the perceived violence and security, attractiveness, affordability and accessibility of Cancún, Cozumel and the Mayan Riviera as desirable vacation destinations. We are unable to control many of these factors and, therefore, we cannot assure you that this substitution effect would occur again if the United States were to experience another recession. Except for Cancún, among Mexican leisure travelers, destinations served by our airports are generally not perceived as economical vacation destinations, and as a result, they did not benefit, and are unlikely to benefit in the future, from the substitution effect that we believe occurred with respect to passengers traveling to and from the United States.
Further, Mexican, Colombian and U.S. political and social developments, over which we have no control, may affect the economic environment in Mexico, Colombia and the United States, and consequently, may contribute to economic uncertainty. Such conditions may adversely affect our business and results of operations.
The Colombian Government and the Colombian Central Bank can intervene in Colombia’s economy and make significant changes in monetary, fiscal and regulatory policy, which could result in currency devaluation and changes in international reserves. Our financial condition and results of operations may be adversely affected by changes in government or fiscal policies, and other political, diplomatic, social and economic developments that may affect Colombia or the international markets. Possible factors include fluctuations in exchange rates and exchange rate controls, inflation, price instability, changes in interest rates, liquidity of domestic capital and debt markets, deposit requirements on foreign borrowings, controls on capital flows, and restrictions to foreign trade.
The economy of Puerto Rico has been in a recession since 2006 and conditions have worsened in recent years, particularly as a result of Hurricanes Irma and Maria in 2017, the COVID-19 pandemic, and Hurricane Fiona in 2022 which damages were concentrated at the south of the island. Following the failure of several Puerto Rico government instrumentalities to make debt service payments on their outstanding debt obligations, on June 30, 2016, the Puerto Rico Oversight, Management and Economic Stability Act (“PROMESA”) was enacted into law. PROMESA provided Puerto Rico with access to bankruptcy-like tools and created a fiscal oversight framework containing measures that include, among others, the establishment of a seven-member Oversight Board to oversee the development of budgets and fiscal plans for Puerto Rico’s government and instrumentalities. In particular, PROMESA allowed the Oversight Board to petition U.S. courts to restructure debt on behalf of Puerto Rico’s central government.
2
In September of 2019, the Oversight Board submitted a joint plan of adjustment to the United States District Court for the District of Puerto Rico. However, in late December 2019 and January 2020, a series of earthquakes and their aftershocks caused extensive damage to parts of Puerto Rico’s infrastructure. In addition, Puerto Rico was significantly impacted by the COVID-19 pandemic that began in early 2020, which has had a substantially adverse effect on the health of its population and economic activity. The combined impact of Hurricanes Irma, Maria and Fiona, the earthquakes and aftershocks, and the pandemic significantly hampered the Oversight Board’s timeline and efforts to restructure Puerto Rico’s debt and could continue to have substantially adverse effects on Puerto Rico’s economy. On January 18, 2022, following several modifications and amendments, the United States District Court for the District of Puerto Rico entered an order confirming the Oversight Board’s revised joint plan of adjustment. On February 23, 2022, the Oversight Board announced its certification of a revised fiscal plan for Puerto Rico which funds the revised joint plan of adjustment and reflects increased federal funding and the effect of federal stimulus funding on economic growth. On March 15, 2022, the revised joint plan of adjustment became effective. Several parties appealed the District Court’s order confirming the revised joint plan of adjustment to the United States Court of Appeals for the First Circuit, and the court affirmed the effectiveness of the plan on April 26, 2022. In August and December of 2023, the Oversight Board filed two additional revised plans of adjustment aimed at reducing the total asserted claims against the Puerto Rico Electric Power Authority to U.S.$2.3 billion (excluding pension liabilities), as well as incorporating tentative increases in the residential electricity rate. Although the outcome of these negotiations remains uncertain, electricity prices in Puerto Rico are expected to rise in the coming years.
During March 2024, the United States District Court for the District of Puerto Rico held a hearing to consider the plan of adjustment. However, in June 2024, the United States Court of Appeals for the First Circuit reversed part of the lower court’s decision ruling that bondholders have a lien on PREPA’s present and future net revenues, reversing part of the lower court’s decision. This ruling affects the debt restructuring process and may require revisions to the plan of adjustment. The 2022 plan of adjustment has been confirmed and become effective, resulting in a significant reduction of Puerto Rico’s outstanding debt. The remaining major restructuring is PREPA. On March 28, 2025, the Oversight Board filed a fifth amended plan of adjustment for PREPA, which would substantially reduce PREPA’s outstanding debt and would, among other things, include a Rate Reduction Fund to support pensions and eliminate a previously contemplated “Legacy Charge.” As of the date of this report, confirmation of the PREPA plan of adjustment remains pending.
On November 5, 2024, governmental elections were held in Puerto Rico and Jennifer González-Colón was elected governor, succeeding former Governor Pedro Pierluisi. Any changes in government policies as a result of the change in administration could result in changes to recovery plans, which in turn could have an adverse effect on Puerto Rico’s economy. Changes in government policies as a result of the change in administration, or as a result of changes in U.S. federal administration and policies, could result in changes to recovery plans, disaster relief funding, infrastructure initiatives, and other economic support programs, which in turn could have an adverse effect on Puerto Rico’s economy.
Puerto Rico’s recovery and reconstruction efforts depend significantly on federal funding and the timing of its disbursement. Federal actions, including potential pauses, terminations, or additional compliance requirements on federal financial assistance programs, could delay or reduce the availability of such funds and adversely affect economic activity and recovery. In addition, changes in U.S. trade policy, including the imposition of tariffs and related supply chain disruptions, and the reduction or phase-out of federal emergency and stimulus programs, could further adversely affect Puerto Rico’s economy.
It is uncertain what impact the foregoing developments will have on the future business and economic conditions of Puerto Rico. Further, a prolongation of Puerto Rico’s fiscal crisis, or a worsening of the crisis, could have an adverse effect on the Puerto Rico economy. Aerostar Airport Holdings, LLC, our joint venture with the Public Sector Pension Investment Board (“PSP Investments”), in which we possess a 60% ownership interest and whose results we have consolidated into our financial statements, has operated the LMM Airport in Puerto Rico since February 27, 2013. The worsening economic conditions in Puerto Rico may adversely affect the LMM Airport’s business and results of operations.
International events, including acts of terrorism, wars, armed conflicts and global diseases, pandemics and epidemics, could have a negative impact on international air travel.
International events such as the terrorist attacks on the United States on September 11, 2001, wars, armed conflicts, and public health crises such as the Influenza A/H1N1 pandemic of 2009-2010 and the COVID-19 pandemic have disrupted the frequency and pattern of air travel worldwide in recent years.
3
A majority of our revenues come from aeronautical services, and our principal source of aeronautical revenues is passenger charges. Passenger charges are payable for each passenger (other than diplomats, infants, transfer and transit passengers) departing from the airport terminals we operate, collected by the airlines and paid to us. In 2024 and 2025, passenger charges represented 46.1% and 41.3% of our consolidated revenues, respectively.
Historically, Colombia has suffered internal armed conflicts with several non-state armed groups including the National Liberation Army (Ejército de Liberación Nacional or “ELN”) and the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia or “FARC”). These internal conflicts have recently escalated, particularly in the Colombian region known as “El Catatumbo”. While our overall business operations in Colombia are not typically impacted by these events, the regions in which some of our airports operate, including El Caraño airport, have been affected by the referred conflicts in the past. We cannot predict how and to what extent the ongoing internal armed conflicts in Colombia can impact our Colombian airports’ operations in the future.
On February 24, 2022, Russian forces launched significant military action against Ukraine, and sustained conflict and disruption in the region has continued as of the date of this report. The military conflict has since caused significant volatility in commodity prices, credit and capital markets, as well as supply chain interruptions. The impact to Ukraine as well as actions taken by other countries could have a material adverse effect on our operations. The extent and duration of the military action, sanctions and resulting market and supply chain disruptions are highly unpredictable but could be substantial. Any general increase of hostilities in Ukraine, even if not made on or targeted directly at the air travel industry, or the fear of or the precautions taken in anticipation of any potential military attacks such as elevated national threat warnings, travel restrictions, selective cancellation or redirection of flights and new security regulations, among others, (and any related economic impact of such events) could result in decreased passenger traffic and increased costs to the air travel industry as a result of new security requirements, and could cause a material adverse effect on our business, results of operations, prospects and financial condition.
On October 7, 2023, Hamas, a terrorist group in control of Gaza, carried out a surprise attack on Israeli cities and towns near the Gaza strip. Following this terrorist attack, Israel declared war on Hamas and other terrorist organizations in Gaza. This conflict escalated when Israel attacked nuclear and military sites in Iran, who in turn retaliated with aerial attacks against Israel, and later as a result of the United States’ attack to three Iranian nuclear sites on June 21, 2025. In October 2025, Israel and Hamas reached a renewed ceasefire agreement as part of a larger international peace plan. The conflict between Israel, Hamas, and Iran has since shifted toward a fragile ceasefire, although there have been claims of breaches. Further, the United Nations has reinstated sanctions on Iran over its nuclear program, and the United States has further intensified sanctions targeting entities associated with the financing of Hamas and Hezbollah.
In addition, on January 3, 2026, the United States launched a series of air strikes against Venezuela and captured and removed former President Maduro and his wife, Cilia Flores, from the country. Following the U.S. strikes, Venezuela announced a state of national emergency, and President Trump announced U.S. plans to govern Venezuela for a transitional period. Since January 2026, the United States has continued to engage in diplomatic and economic measures in Venezuela, including steps toward normalization of relations with the interim government, while the duration and scope of any transitional governance arrangements remain uncertain. Further escalation of these conflicts could lead to significant market and other disruptions, which could have a material adverse effect on our business, financial position, results of operations and cash flows.
On February 28, 2026, the United States and Israel launched coordinated military strikes against Iranian military, governmental and nuclear-related facilities, killing Iran’s leader and other senior officials and significantly escalating geopolitical tensions in the Middle East. Iran has responded with missile and drone strikes against Israel and U.S. military installations across the region. As of early April 2026, hostilities between Iran, the United States and Israel remain ongoing, with continued exchanges of strikes contributing to heightened geopolitical instability in the region. The extent and duration of this conflict and any further escalation thereof are highly unpredictable, but could contribute to sustained volatility in energy markets, disruptions to global trade routes, and instability in financial markets. Any of these developments, as well as any resulting reduction in air travel demand, could have a material adverse effect on our business, financial position, results of operations and cash flows.
4
Because our revenues are largely dependent on the level of passenger traffic in our airports, any general increase of hostilities relating to reprisals against terrorist organizations, armed groups, further conflict in the Middle East or Ukraine, pandemics or outbreaks of health epidemics such as Influenza A/H1N1, SARS, avian influenza, COVID-19 or other events of general international concern (and any related economic impact of such events) could result in decreased passenger traffic and increased costs to the air travel industry and, as a result, could cause a material adverse effect on our business, results of operations, prospects and financial condition.
Hurricanes and other natural disasters have adversely affected our business in the past and could do so again in the future.
The southeast region of Mexico and Puerto Rico, like other Caribbean destinations, experience hurricanes, particularly during the third quarter of each year. Portions of the southeast region of Mexico, the Caribbean region of Colombia and Puerto Rico also experience earthquakes from time to time. Natural disasters may impede operations, damage infrastructure necessary to our operations and/or adversely affect the destinations served by our airports. Any of these events could reduce our passenger traffic volume. The occurrence of natural disasters in the destinations we serve has adversely affected, and could in the future adversely affect, our business, results of operations, prospects and financial condition. Some experts believe that climate change due to global warming could increase the frequency and severity of hurricanes in the future. We have insured the physical facilities at our airports against damage caused by natural disasters, accidents or other similar events, but do not have insurance covering losses due to resulting business interruption. Moreover, should losses occur, there can be no assurance that losses caused by damages to the physical facilities will not exceed the pre-established limits on the policies.
Between December 2019 and February 2020, a series of earthquakes shook Puerto Rico. The first earthquake in the series, a 4.7 magnitude earthquake, struck on December 28, 2019. The last earthquake in the series, a 5.0 magnitude earthquake, struck on February 4, 2020. The largest earthquake in the series was a 6.4 magnitude earthquake that struck on January 7, 2020. The Governor of Puerto Rico declared a state of emergency in response on January 7, 2020. The series of earthquakes caused power and water outages across Puerto Rico and estimates of financial losses exceeded U.S.$3.0 billion. LMM Airport remained open throughout the series of earthquakes. The series of earthquakes did not cause substantial damage to LMM Airport and did not result in material interruptions to our operations.
On September 20, 2022, Hurricane Fiona struck Puerto Rico, causing landslides, flooding and a total blackout by damaging the power transmission and distribution lines in Puerto Rico. While Hurricane Fiona did not cause significant damages to the LMM Airport, air travel was suspended starting September 17, 2022 at 10pm and reinstated on September 19, 2022. The hurricane brought approximately 30 inches of rain and damaged 50% of power transmission and distribution lines across Puerto Rico.
In July 2024, Hurricane Beryl struck the Yucatan Peninsula causing heavy rainfall and winds of up to 108 miles per hour. Air travel was suspended at the Cancun and Cozumel airports on Thursday July 4, 2024 and reinstated on early morning of July 5, 2024. A total of 332 flights were cancelled and 76 flights were delayed. The hurricane did not cause substantial damages to our Cancun and Cozumel Airports.
On August 2024, Hurricane Ernesto struck Puerto Rico, causing serious flooding and blackouts due to damages in the power transmission and distribution lines. Air travel was suspended in the Luis Muñoz Marín International Airport, and while the hurricane did not cause substantial damage to the LMM Airport, 145 flights were canceled.
On August 2025, Hurricane Erin struck Puerto Rico, causing serious flooding and blackouts. Air travel was suspended in the Luis Muñoz Marín International Airport, and while the hurricane did not cause substantial damage to the LMM Airport, 91 flights were canceled, and 13 were delayed.
5
Fluctuations in international petroleum prices could reduce demand for air travel.
Fuel represents a significant cost for airlines. International prices of fuel have experienced significant volatility in recent years. Most of our airline customers use kerosene-based jet fuel, the price of which is normally based upon the U.S. spot prices for that fuel plus the cost of transportation to each airport. Although the U.S. Gulf Coast spot price for jet fuel has decreased from its high of U.S.$4.81 per gallon on September 12, 2008, it has continued to fluctuate in 2025, with a high of U.S.$2.50 per gallon on November 18, 2025, and a low of U.S.$1.85 per gallon on May 7, 2025, according to the Energy Information Administration of the U.S. Department of Energy. As of March 30, 2026, the U.S. Gulf Coast spot price for jet fuel was U.S.$4.24 per gallon. The price of fuel may be subject to further fluctuations resulting from a reduction or increase in output of petroleum, voluntary or otherwise, by oil-producing countries, other market forces, a general increase in international hostilities or any future terrorist attacks. Our business could be negatively impacted by hydrocarbon price volatility as a result of, Russian activities in Ukraine, including Russia expanding its production of oil and gas to finance its activities in Ukraine and destabilize world energy markets, the ongoing conflict in the Middle East, or the recent U.S. military intervention in Venezuela involving the capture of Nicolás Maduro and the announced state of emergency. Oil prices are particularly sensitive to actual and perceived threats to global political stability and to changes in production from member states of the Organization of the Petroleum Exporting Countries. Additionally, the conflict between Russia and Ukraine has caused shortages in the availability of aircraft fuel, including as a result of targeted sanctions and export control measures imposed by the United States and foreign government bodies. Although for the year ended December 31, 2025, any such shortages have not been material, there is no assurance that the shortages will not become more severe, and we cannot predict the continued impact of these sanctions and export measures, or the impact of any further retaliatory actions that may be taken by Russia and the United States and foreign government bodies. Further, while the impact of the military intervention conducted by the United States in Venezuela remains to be seen as of the date of this report, their effects could result in fluctuations in oil prices. Shortages in the availability of, or increase in demand for, crude oil in general, other crude oil based derivatives and aircraft fuel in particular have resulted, and could continue to result, in increased fuel prices and could have a material adverse effect on our business, results of operations, and financial condition.
In addition, a number of airlines have engaged in hedging strategies with respect to fuel prices. While fuel hedging has historically been used to mitigate volatility in fuel costs, recent geopolitical developments have contributed to significant increases in jet fuel prices and heightened volatility. In 2025, many airlines reduced their hedging positions, opting to hedge only a portion of their fuel needs or using more flexible derivative instruments such as options. This trend has continued into 2026, with certain airlines largely foregoing fuel hedging altogether, while others maintain partial hedging programs with shorter time horizons or lower coverage levels. Additionally, airlines are focusing on improving fuel efficiency and exploring operational and strategic measures, including capacity adjustments and increased use of sustainable aviation fuels, to manage fuel-related costs. However, increases in airlines’ costs may result in higher airline ticket prices and may decrease demand for air travel generally, thereby having an adverse effect on our revenues and results of operations.
The loss or suspension of operations by one or more of our key customers could result in a loss of a significant amount of our revenues.
The global airline industry has recently experienced and may continue to experience in the future significant financial difficulties, marked by the filing for bankruptcy protection of several carriers and recent warnings regarding industry profitability. In October 2021, the International Air Transport Association, or IATA, issued its 2021 financial forecast for the global commercial airline industry, estimating a net post-tax loss of about U.S.$51.8 billion, due to the effects of COVID-19. In December 2025, the IATA announced that the airline industry net profits for 2024 were U.S.$28.3 billion. According to IATA’s forecasts, the airline industry continued to recover during 2024 and 2025, which is expected to continue in 2026. In December, 2025, the IATA announced that the airline net industry profits are expected to be of U.S.$39.5 billion in 2025. With respect to 2026 forecasts, IATA estimates that the airline industry will have a global net profit of U.S.$41.0 billion on revenues of U.S.$1,053 billion. While COVID-19 is no longer having a material impact on the airline industry, the resurgence of COVID-19 or the surge of any disease, pandemic or epidemic could have a material adverse effect on airlines and may continue to trigger additional insolvencies within the global airline industry.
Our business and results of operations could be adversely affected if we do not continue to generate comparable portions of our Mexican regulated revenue from our key customers, including VivaAerobus (which accounted for 13.4% of our revenues in 2023, 14.3% in 2024, and 14.6% in 2025), Volaris (which accounted for 12.0% of our revenues in 2023, 10.1% in 2024 and 9.1% in 2025), Aeromexico (which accounted for 10.7% of our revenues in 2023, 10.1% in 2024 and 10.0% in 2025), American Airlines (which accounted for 8.5% of our revenues in 2023, 10.1% in 2024 and 10.6% in 2025), United Airlines (which accounted for 7.5% of our revenues in 2023, 8.4% in 2024 and 9.1% in 2025) and Delta Airlines (which accounted for 5.1% of our revenues in 2023, 5.5% in 2024 and 7.0% in 2025).
6
On February 28, 2023, Fast Colombia, S.A.S.’s low-cost airline (Viva Air) suspended all flights due to financial distress, and on June 21, 2023, the Colombian Superintendence of Corporations announced the commencement of the airline’s liquidation proceeding. Pursuant to an order issued on July 19, 2025, Sociedad Operadora de Aeropuertos Centro Norte S.A.S. (“Airplan”) was recognized as a creditor of Viva Air in the amount of Ps. 13.8 million. As partial satisfaction of the claim, Airplan was awarded Ps. 1.6 million in cash, Ps. 2.7 million in rights over tools and spare parts and Ps. 0.1 million in trademark rights. Airplan accepted the payment in cash but rejected the proposed payments in rights. As of December 31, 2025, we are owed Ps. 13.6 million from Viva Air, which was declared uncollectable by the aforementioned court order and which is included in our allowance for doubtful accounts, and we might not be able to recover the full amount owed to us. As of the date of this report, the liquidation proceedings remain ongoing.
On March 29, 2023, Ultra Airlines S.A.S. (“Ultra Airlines”), a low-cost airline, suspended all flights due to financial distress, and on June 28, 2023, Colombian Superintendence of Corporations announced the commencement of the airline’s judicial liquidation proceeding. By an adjudication order issued on June 19, 2025, the distribution of the company’s assets among its creditors became final. Pursuant to an order issued on June 19, 2025, Airplan S.A.S. was recognized as a creditor of Ultra Airlines in the amount of Ps. 10.0 million. As partial satisfaction of the claim, Airplan S.A.S. was awarded Ps. 2.9 million in cash, which was received in September 2025. On November 13, 2025, the Colombian Superintendence of Corporations approved the liquidator’s final accounting and formally declared the conclusion of the judicial liquidation proceeding of Ultra Air S.A.S. As of December 31, 2025, we are owed Ps. 7.8 million from Ultra Airlines, which was declared uncollectable by the aforementioned court order and is included in our allowance for doubtful accounts, and we might not be able to recover the full amount owed to us.
In August 2025, Spirit Airlines, the largest low-cost airline in the U.S., filed for Chapter 11 bankruptcy protection in the U.S. for the second time to restructure and reduce costs. As of December 31, 2025, Spirit Airlines continues to operate in Cancun Airport, Luis Muñoz Marín International Airport, and José María Córdova International Airport. On December 2024, Silver Airways filed for Chapter 11 bankruptcy protection in the U.S., and on June 11, 2025, Silver Airways suspended all flights and operations.
Moreover, revenues from Mexican passenger charges are not secured, and we may not be able to collect amounts invoiced in the event of the insolvency of one of our principal airline customers. In recent years, many airlines have reported substantial losses. Our revenues from passenger charges from our principal airline customers are not secured by a bond or any other collateral. Furthermore, Mexican passenger charges, which accounted for 14.0% of our revenues in 2025, are collected by airlines from passengers on our behalf and are later paid to us 30 to 115 days following the date of each flight. If any of our key customers were to become insolvent or seek bankruptcy protection, we might not be able to recover the full amount of such charges.
For example, as a result of the Grupo Mexicana bankruptcy, we estimate that Ps. 128.0 million in accounts receivable could be at risk of not being recovered, which represented 4.9% of our total accounts receivable as of December 31, 2025.
On December 11, 2020, Interjet stopped all flights and has not resumed operations. As of December 31, 2025, we are owed Ps. 75.0 million from Interjet, which is included in our allowance for doubtful accounts, and we might not be able to recover the full amount owed to us.
None of our contracts with our principal airline customers obligate them to continue providing service to our airports and we can offer no assurance that competing airlines would seek to increase their flight schedules if any of our key customers reduced their use of our airports. Although in the past we were able to renew our agreements with our principal airline customers at our Mexican airports, some of these contracts are scheduled to expire in December 2025 and we cannot assure whether these will be renewed. With respect to our Colombian airports, our subsidiary Airplan, charges airlines various fees (relating to domestic routes, international routes and development). The tariffs are established by either the Special Administrative Unit of Civil Aeronautics (Unidad Administrativa Especial de Aeronáutica Civil), or the Colombian Civil Aviation Authority (Aerocivil) pursuant to Resolution 04530 of 2007, as amended by Resolutions 02251 and Resolution 031 of 2019, and Colombian Aeronautical Regulation No.14 (Reglamento Aeronáutico de Colombia). As of December 31, 2025, the following airlines at our Colombian airports were subject to such tariffs: Avianca, Aerorepública (COPA), LATAM, American Airlines, Clic Air, Spirit, Aeroméxico, JetBlue, Satena, Wingo, Jet Smart Chile, Jet Smart Peru, Air Europa, Ara Jet, Jet Air, Moon Flight, Ez Air, America´s Air, Aerea ,Custom Aviation, Hangar 29 S.A.S., Helijet, Heligolfo, Heliservice, Helistar, Helisur, Pacífica de Aviación, SASA, SARPA, SEARCA, AVIOR and United Airlines among others.
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We expect that we will continue to generate a significant portion of our revenues from a relatively small number of airlines in the foreseeable future. Our business and results of operations could be adversely affected if we do not continue to generate comparable portions of our revenue from our key customers.
In addition, Mexican law prohibits an international airline from transporting passengers from one Mexican location to another (unless the flight originated outside Mexico), which limits the number of airlines providing domestic service in Mexico. Accordingly, we expect to continue to generate a significant portion of our revenues from Mexican domestic travel from a limited number of airlines.
Moreover, some of our commercial clients may face difficulties making their payments to our airports, including during the COVID-19 outbreak and the resulting decrease in air traffic. Any such difficulties could result in attempts to renegotiate our commercial clients’ lease and payment terms, but we cannot guarantee that any attempted renegotiations would be successful. In the event of unsuccessful renegotiations, some commercial clients may choose to vacate our commercial spaces. We cannot guarantee that we will be able to re-lease any vacated commercial spaces. Any renegotiation process, cancellation of commercial leases or attempt to re-lease vacant space could lead us to incur costs and have a negative effect on our revenues.
We could be subject to fines, penalties and other adverse consequences pending the outcome of our appeal against the Mexican government’s tax treatment of airport concessions at Cancún Airport.
When bidding was concluded for the shares of the Mexican airport group that became ASUR, the Ministry of Infrastructure, Communications and Transportation agreed that the concessionaire could amortize the value of the concession at an annual rate of 15.0% for tax purposes. Contrary to this decision, in February 2012, the Ministry of Finance and Public Credit determined that this agreement was invalid and that the rate should instead be 2.0%. We filed an appeal in April 2012 to reverse this determination. In May 2013, while our appeal was pending, the Mexican federal government implemented a tax amnesty program for federal taxes, which we participated in by paying Ps.128.3 million to settle the claim with the Ministry of Finance and Public Credit solely with respect to income taxes. Our participation in the tax amnesty program, however, had no impact on our separate appeal of the amount of distributions owed by the Company under the mandatory employee statutory profit sharing regime established by Mexican federal labor laws. In September 2023, Quintana Roo’s Tax Authority determined that the Company owed Ps. 99.8 million in distributions under the mandatory employee statutory profit-sharing regime. We have appealed this resolution via an annulment action which, as of April 16, 2026, is still pending to be resolved. If we were to lose the appeal, we estimate that we would be required to pay an additional Ps.99.8 million in distributions under the mandatory employee statutory profit-sharing regime.
The FAA could downgrade Mexico’s air safety rating again, which could result in a decrease in air traffic between the United States and our airports.
The United States Federal Aviation Authority (the “FAA”) evaluates the legal framework for civil aviation and issues related to the monitoring, staff training and inspection processes related to regulations issued by the International Civil Aviation Organization (“ICAO”). On May 25, 2021, the FAA downgraded Mexico’s aviation safety rating from an ICAO Category 1 rating to an ICAO Category 2 rating, as a result of the FAA’s visit to the Federal Civil Aviation Agency (Agencia Federal de Aviacion Civil, “AFAC”) between October, 2020 and February, 2021. The downgrade was attributable to 24 safety-related issues in Mexico’s aviation, which were identified as areas of non-compliance with minimum ICAO safety standards.
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The FAA had already downgraded Mexico’s aviation safety rating from a Category 1 rating to a Category 2 rating on July 30, 2010, as a result of the FAA’s visit to the Mexican Bureau of Civil Aviation (currently AFAC) between January and July 2010. The downgrade was attributable to an insufficient number of flight inspectors and administrative and organizational elements in the Mexican Bureau of Civil Aviation (currently AFAC).
The consequences of the above-mentioned downgrades were the suspension of the right to operate code-shared flights and the restriction of Mexican airlines’ ability to increase the frequency of, or add new routes to, the United States. In 2023, 2024, and 2025, 0.7%, 1.1%, and 1.6% respectively, of the passengers that traveled through our airports traveled on flights to or from the United States operated by Mexican airlines.
While in September 2023 the FAA returned Mexico’s Category 1 aviation safety rating, Mexico’s rating can be downgraded again in the future, and we cannot predict what impact such a downgrade would have on our passenger traffic or results of operations, or on the public perception of the safety of our airports.
Additionally, as one of the measures aimed at recovering Mexico’s Category 1 status, on May 3, 2023, the Mexican government published a decree amending the Federal Public Administration Law (Ley Orgánica de la Administración Pública Federal), the Mexican Army and Airforce Law (Ley Orgánica del Ejército y Fuerza Aérea Mexicanos), the Mexican Airport Law (Ley de Aeropuertos) and the Mexican Civil Aviation Law (Ley de Aviacion Civil). See “Item 3. Key Information—Risk Factors— Risks Related to the Regulation of Our Business— Changes to Mexican laws, regulations and decrees applicable to us could have a material adverse impact on our results of operations.”
Our business is highly dependent upon revenues from Cancún International Airport.
In 2025, Ps. 21,737.5 million (including construction services) or 58.4% of our revenues were derived from operations at Cancún International Airport. During 2023, 2024 and 2025, Cancún International Airport represented 75.3%, 73.4%, and 72.3% respectively, of our passenger traffic in Mexico and 58.9%, 57.1%, and 56.2% respectively, of our air traffic movements in Mexico. The desirability of Cancún as a tourist destination and the level of tourism to the area are dependent on a number of factors, many of which are beyond our control. For example, some media outlets continue to report an increase in the level of drug-related violence in Mexico. Although these reports generally indicate that this increase in violence affects mostly cities in northern Mexico and the west coast of Mexico, and is generally not directed at tourists, the reports may have created a perception that Mexico has become a less safe and secure place to visit. In turn, we believe that it is possible that this perception has adversely affected the desirability of Cancún as a tourist destination. This perception may have been fueled further by travel advisories issued by the U.S. State Department that listed Cancún as a place in Mexico where visiting tourists must be cautious. On January 23, 2023, the United States Department of State issued a press release warning U.S. citizens of certain violent outbreaks between Uber drivers and local taxi unions in Quintana Roo, which often resulted in U.S. citizens being injured. Further, on March 13, 2023, the United States Department of State issued a press release advising U.S. citizens to exercise increased caution in certain touristic areas such as Cancun, Playa Del Carmen, and Tulum. Since then, the U.S. Department of State has continued to advise that U.S. citizens should “exercise increased caution” when traveling in Mexico, including in the State of Quintana Roo, under the current Level 2 (Exercise Increased Caution) advisory first issued on August 12, 2025, which remains in effect as of early 2026. The advisory specifically notes that violent crime and incidents have occurred in Quintana Roo and recommends that travelers pay close attention to their surroundings. We cannot assure you that tourism in Cancún will not decline in the future, which could in turn affect passenger traffic in our Cancún Airport. Any event or condition affecting Cancún Airport or the areas that it serves could have a material adverse effect on our business, results of operations, prospects and financial condition.
Increases in prevailing interest rates could adversely affect our financial condition.
An increase in prevailing interest rates could adversely affect our financial condition. As of December 31, 2025, we had U.S.$1,526.5 million in outstanding indebtedness, U.S.$1,034.0 million of which was floating rate. Any increased interest expense associated with increases in interest rates affects our ability to service our debt absent the benefit from any hedging arrangements. Accordingly, an increase in the prevailing interest rates applicable to our loans would increase our debt service costs, which in turn would negatively affect our results of operations. For further details regarding our indebtedness, see “Item 5—Operating and Financial Review and Prospects—Liquidity and Capital Resources—Indebtedness.”
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Security enhancements have resulted in increased costs and may expose us to greater liability.
The air travel business is susceptible to increased costs resulting from enhanced security and higher insurance and fuel costs. Following the events of September 11, 2001, we reinforced security at our airports. For a description of the security measures that we adopted, see “Item 4. Information on the Company—Business Overview—Non-Aeronautical Services—Airport Security.” While enhanced security at our airports has not resulted in a significant increase in our operating costs to date, we may be required to adopt additional security measures in the future. Since 2014, we carry an insurance policy covering damages to property resulting from terrorist acts for our Puerto Rico airport, which in 2025 amounted to U.S.$160.0 million. The insurance premiums we pay may be increased in the future, which would increase our costs of operation and affect our business results. Further, because our insurance policies do not cover losses resulting from war in any amount or from terrorism for amounts greater than U.S.$160.0 million, we could incur significant costs if we were to be directly affected by events of this nature. While governments in other countries have agreed to indemnify airlines for liabilities they might incur resulting from terrorist attacks, the Mexican government has not done so and has given no indication of any intention to do the same. In addition, fuel prices and supplies, which constitute a significant cost for airlines using our airports, may be subject to increases resulting from any future terrorist attacks, a general increase in international hostilities or a reduction in output of fuel, voluntary or otherwise, by oil producing countries. Such increases in airlines’ costs have resulted in higher airline ticket prices and decreased demand for air travel generally, thereby having an adverse effect on our revenues and results of operations. In addition, because a substantial majority of our international flights involve travel to the United States, we may be required to comply with security directives of the FAA, in addition to the directives of Mexican and Colombian aviation authorities.
In addition, because a substantial percentage of our international flights involve travel to and from the United States, we may be required to comply with security directives of the FAA in addition to the directives of Mexican aviation authorities. Security measures taken to comply with future security directives of the FAA or the Mexican Bureau of Civil Aviation or in response to a terrorist attack or threat could reduce passenger capacity at our airports due to increased passenger screening and slower security checkpoints and increase our operating costs, which would have an adverse effect on our business, results of operations, prospects and financial condition.
Furthermore, under the Mexican Airport Law, we are currently responsible for inspecting passengers and their carry-on luggage before they board any aircraft. Under Mexican law, we may be liable to third parties for personal injury or property damage resulting from the performance of such inspection. In addition, we may be required to adopt additional security measures in the future or undertake capital expenditures if security measures for carry-on luggage are required to be enhanced, which could increase our liability or adversely affect our operating results.
Interruptions in the proper functioning of information systems or other technologies could disrupt operations and cause unanticipated increases in costs and/or decreases in revenues.
The proper functioning of our information systems is important to the successful operation of our business. If critical information systems fail or are otherwise unavailable, our ability to provide airport services at our airports, collect accounts receivable, pay expenses and maintain our security and customer data, could be adversely affected. In addition, incidents such as cyber-attacks, viruses, other destructive or disruptive software or activities, process breakdowns, outages or accidental release of information could adversely affect our technological systems and result in a disruption to our operations, the improper disclosure of personal, privileged or confidential information, or unauthorized access to our digital content or any other type of intellectual property. Currently, our information systems are protected with backup systems, including physical and software safeguards and a cold site to recover information technology operations. These safety components reduce the risk of disruptions, failures or security breaches of our information technology infrastructure and are reviewed periodically by external advisors. Nonetheless, any such disruption, failure or security breach of our information technology infrastructure, including our back-up systems, could have a negative impact on our operations.
To date we have not experienced any major incidents related to cybersecurity or our information systems. Any such incident could cause damage to our reputation and may require us to expend substantial resources to remedy the situation and could therefore have a material adverse effect on our business and results of operations. In addition, there can be no assurance that any efforts we make to prevent these incidents will be successful in avoiding harm to our business.
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Our revenues are highly dependent upon levels of passenger and cargo traffic volumes and air traffic, which depend in part on factors beyond our control.
Our revenues are closely linked to passenger and cargo traffic volumes and the number of air traffic movements at our airports. These factors directly determine our revenues from aeronautical services and indirectly determine our revenues from non-aeronautical services. Passenger and cargo traffic volumes and air traffic movements depend in part on many factors beyond our control, including economic conditions in Mexico, Colombia and the United States, the political situation in Mexico, Colombia and elsewhere in the world, the attractiveness of our airports relative to that of other competing airports, fluctuations in petroleum prices (which can have a negative impact on traffic as a result of fuel surcharges or other measures adopted by airlines in response to increased fuel costs) and changes in regulatory policies applicable to the aviation industry. Reports suggesting an increase in the level of violent crime in Mexico may have had an adverse impact on passenger traffic to our Mexican airports, even though such airports serve areas of Mexico that have been less affected by violent crime. Similarly, reports suggesting an increase in the level of violence or political or economic instability in Colombia may have an adverse impact on passenger traffic to our Colombian airports. Any decreases in air traffic to or from our airports as a result of factors such as these could adversely affect our business, results of operations, prospects and financial condition.
Our business is highly dependent upon the operations of certain airports, including Mexico City and Bogotá Area airports.
In 2023, 2024 and 2025, 45.0%, 41.6%, and 39.7% respectively, of our Mexican domestic passengers flew to or from our airports via Mexico City International Airport. As a result, our Mexican domestic traffic is highly dependent upon the operations of Mexico City International Airport. We cannot assure you that the operations of the Mexico City International Airport will not decrease or be adversely affected by construction of additional airports in the future. In 2025, overall Mexican domestic passenger traffic to and from Mexico City decreased 5.2% compared to 2024.
In 2025, 37.1% of our Colombian domestic passengers flew to or from our airports via El Dorado International Airport in Bogotá, Colombia. As a result, our Colombian domestic traffic is highly dependent upon the operations of El Dorado International Airport. Any event or condition that adversely affects Mexico City and Bogotá area airports could adversely affect our business, results of operations, prospects and financial condition.
Competition from other tourist destinations could adversely affect our business.
One of the principal factors affecting our results of operations and business is the number of passengers using our airports. The number of passengers using our airports may vary as a result of factors beyond our control, including the level of tourism in Mexico, Colombia and Puerto Rico. In addition, the passenger traffic volume at our Mexican airports and LMM Airport may be adversely affected by the attractiveness, affordability and accessibility of competing tourist destinations in Mexico, such as Acapulco, Puerto Vallarta and Los Cabos, or elsewhere, such as Florida, Cuba, Jamaica, the Dominican Republic and other Caribbean islands and Central American destinations. The attractiveness of the destinations we serve is also likely to be affected by perceptions of travelers as to the safety and political and social stability of Mexico, Colombia and Puerto Rico. There can be no assurance that tourism levels in the future will match or exceed current levels.
If a change in relations with our labor force should occur, such a change could have an adverse impact on our results of operations.
Although we currently believe we maintain good relations with our labor force, if any conflicts with our employees were to arise in the future, including with our unionized employees (which accounted for 20.9% of our total employees as of December 31, 2025), resulting events such as strikes or other disruptions that could arise with respect to our workforce could have a negative impact on our business or results of operations.
The operations of our airports may be disrupted due to the actions of third parties beyond our control.
As is the case with most airports, the operation of our airports is largely dependent on the services of third parties, such as air traffic control authorities, airlines, energy suppliers and suppliers of fuel to aircraft at our airports.
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On September 20, 2017, 730 of Colombian flagship airline carrier Avianca’s 1,300 pilots walked off the job, demanding higher wages and benefits. The strike lasted 51 days and caused Avianca to ground hundreds of flights and contract foreign-based crews to serve its important long-haul routes to the United States and Europe. As a result, our passenger traffic in our Colombian airports decreased 13.0% in October 2017, 13.7% in November 2017, and 12.3% in December 2017 relative to the same monthly periods in 2016.
We are also dependent upon the Mexican government or entities of the government for provision of services such as immigration services for our international passengers. We are not responsible for and cannot control the services provided by these parties. Additionally, under the Mexican Airport Law, we are required to provide complementary services at each of our airports if there is no third party providing such services. As a result, any disruption in or adverse consequence resulting from the services of third parties, including a work stoppage or other similar event, may require us to provide these services personally or find a third party to provide them, and either event may have a material adverse effect on the operation of our airports and on our results of operations.
Fernando Chico Pardo and Grupo ADO, S.A. de C.V., directly and through their own investment vehicles and their interests in Inversiones y Técnicas Aeroportuarias, S.A.P.I. de C.V., (“ITA”), have a significant influence as stockholders and over our management, and their interests may differ from those of other stockholders.
CHPAF Holdings, S.A.P.I. de C.V. (“CHPAF”), an entity directly or indirectly owned and controlled by Fernando Chico Pardo, who is also the chairman of our Board of Directors, owns 21.67% of our total capital stock. In addition, Grupo ADO, S.A. de C.V. (“Grupo ADO”) directly owns 1.33% of our total capital and indirectly through its subsidiaries (including Inversiones Productivas Kierke, S.A. de C.V. (“Inversiones Kierke”)), owns 12.33% of our total capital stock. Further, ITA, an entity which is owned 50.0% by entities directly owned and controlled by Mr. Fernando Chico Pardo and 50.0% by Inversiones Kierke, holds Series BB shares representing 7.65% of our capital stock. Series BB shares provide for special management rights. For example, pursuant to our bylaws, ITA is entitled to present to the Board of Directors the name or names of the candidates for appointment as chief executive officer, to remove our chief executive officer and to appoint and remove one half of the executive officers, and to elect two members of our Board of Directors. Our bylaws also provide ITA veto rights with respect to certain corporate actions (including some requiring approval of our shareholders) so long as its Series BB shares represent at least 7.65% of our capital stock. Mr. Fernando Chico Pardo and Grupo ADO have entered into a shareholders’ agreement that requires their unanimous consent to cause ITA to exercise certain of these rights. Special rights granted to ITA are more fully discussed in “Item 10. Additional Information” and “Item 7. Major Shareholders and Related Party Transactions.”
Therefore, Mr. Fernando Chico Pardo and Grupo ADO are each able to exert a significant influence over our management and matters requiring the approval of our stockholders. The interests of Mr. Fernando Chico Pardo Grupo ADO and ITA may differ from those of our other stockholders, and there can be no assurance that any of Mr. Fernando Chico Pardo, Grupo ADO or ITA will exercise its rights in ways that favor the interests of our other stockholders. In particular, Grupo ADO is a Mexican bus company that may directly or indirectly compete with our key airline customers in the Mexican transportation market. Furthermore, the concentration of ownership by Mr. Fernando Chico Pardo, Grupo ADO and the special rights granted to ITA may have the effect of impeding a merger, consolidation, takeover or other business combination involving ASUR.
Some of our board members and stockholders may have business relationships that may generate conflicts of interest.
Some of our board members or stockholders may have outside business relationships that generate conflicts of interest. For example, Fernando Chico Pardo, the chairman of our Board of Directors and one of our principal indirect stockholders, is a member of a number of other boards of directors that from time to time may have interests that diverge from our own. In addition, Grupo ADO, whose executives sit on our Board of Directors and which is one of our principal stockholders, operates a bus transportation business and has other interests that may be different than ours. Conflicts may arise between the interests of these or other individuals in their capacities as our shareholders and/or directors, on the one hand, and their outside business interests on the other. There can be no assurance that any conflicts of interest will not have an adverse effect on our shareholders.
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Our operations are at greater risk of disruption due to the dependence of most of our airports on a single commercial runway.
As is the case with many other domestic and international airports around the world, all of our airports (except for our Cancún, Mérida and LMM Airports) have only one commercial aviation runway. While we seek to keep our runways in good working order and to conduct scheduled maintenance during off-peak hours, we cannot assure you that the operation of our runways will not be disrupted due to required maintenance or repairs. In addition, our runways may require unscheduled repair or maintenance due to natural disasters, aircraft accidents and other factors that are beyond our control. The closure of any runway for a significant period of time could have a material adverse effect on our business, results of operations, prospects and financial condition.
We are exposed to risks related to construction projects.
The building requirements under our master development programs in Mexico could encounter delays or cause us to exceed our budgeted costs for such projects, which could limit our ability to expand capacity at our Mexican airports, increase our operating or capital expenses and adversely affect our business, results of operations, prospects and financial condition. Such delays or budgetary overruns also could limit our ability to comply with our Mexican master development programs. If we do not comply with our Mexican master development programs, we may be subject to fines or the loss of our Mexican concessions. Our previous master development programs in Mexico were in effect until December 31, 2023. On December 11, 2023, the Secretary of Infrastructure, Communications and Transport (“SICT”) approved our Mexican master development programs for the years 2024 through 2028, which took effect starting January 1, 2024.
In May 2023, we entered into an investment agreement with Bávaro International Airport AIB, S.A.S. (AIB), CVC One, Inc., Grupo Abrisa, S.R.L., Muñoz Investment Banking Group Fund, LLC, Abraham Jorge Hazoury Toral and Alberto Alejandro Durán Santana for purposes of developing, constructing and operating an international airport in Bavaro, Dominican Republic. We had initially expected to maintain a 25% stake in the venture with a total estimated investment amount of U.S.$66.0 million once construction was completed, however the construction license granted in 2020 was revoked by Dominican authorities and the related appeal filed by AIB against the revocation is pending to be resolved. As of December 31, 2025, there is still no government approval for the construction of the Airport. If the venture developing the airport fails to obtain new licenses and other pending permits necessary to construct the airport in Bavaro, Dominican Republic, we will not be able to complete such project and will not recover the investments already made in connection with it. This, in turn, may affect our revenues, expenses and net income.
During 2024, we incurred major capital expenditures in Puerto Rico, including capital expenses incurred in connection with the completion of Terminal D reconstruction, multilevel parking solar panels construction, and reconstruction of Runway 8/26.
During 2025, we incurred major capital expenditures in Puerto Rico, including capital expenses incurred in connection with the design of the multilevel parking expansion, the construction of multilevel parking solar panels, the construction of the multilevel parking pedestrian bridge, the configuration of FIS in Terminal D and the reconstruction of an under-vehicle explosive detection system.
We are exposed to risks related to other business opportunities.
In the spring of 2017, we, through Aeropuerto de Cancún, entered into agreements to acquire a controlling interest in Airplan and Aeropuertos de Oriente S.A.S. (“Oriente”). In October 2017, we received the necessary approvals from the Colombian regulatory authorities to conclude the acquisition of a 92.42% stake in Airplan. Airplan has concessions to operate the following airports in Colombia: the Enrique Olaya Herrera Airport in Medellín, the José María Córdova International Airport in Rionegro, the Los Garzones Airport in Montería, the Antonio Roldán Betancourt Airport in Carepa, the El Caraño Airport in Quibdó and the Las Brujas Airport in Corozal. On May 25, 2018, we increased our ownership stake in Airplan to 100% by acquiring an additional 7.58% of Airplan’s capital stock. We terminated our agreement to purchase Oriente in 2018.
We purchased the initial 92.42% interest in Airplan for an aggregate price of approximately U.S.$201.6 million, subject to pricing adjustments and pursuant to a series of agreements with the respective shareholders of Airplan. We paid U.S.$69.6 million of the purchase price with cash on hand, and obtained an unsecured loan of Ps. 4,000.0 million from BBVA in April 2017 to pay the balance of the purchase price.
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In July 2012, the Puerto Rico Ports Authority (“PRPA”) granted Aerostar, our Puerto Rican subsidiary, a concession to operate the Luis Muñoz Marín International Airport (“LMM Airport”) under the United States FAA’s Airport Privatization Pilot Program. On February 27, 2013, the transaction was finalized and Aerostar began operating the LMM Airport. Aeropuerto de Cancún pledged its membership interests in Aerostar, as collateral for debt incurred by Aerostar to fund a portion of the concession fee and contingent liabilities related to the concession. In 2017 we acquired a majority interest in Aerostar.
On July 30, 2025, our subsidiary ASUR US Commercial Airports, LLC entered into a purchase agreement with Unibail-Rodamco-Westfield’s wholly-owned subsidiary Westfield Development, Inc. to acquire all of the issued and outstanding equity interest of URW Airports, LLC for an enterprise value of US$295 million. The acquired business manages select commercial programs at several U.S. airports, including Terminals 1, 2, 3, 6, Tom Bradley International Terminal and Tom Bradley International Terminal West at Los Angeles International Airport (“LAX”), Terminal 5 at Chicago O’Hare International Airport (“ORD”), and Terminal 8 and New Terminal One at John F. Kennedy International Airport (“JFK”). The transaction closed on December 11, 2025. We funded the transaction with cash on hand and a secured financing from JPMorgan Chase Bank, N.A.
Further, on November 18, 2025, Aeropuerto de Cancún entered into a purchase agreement with Motiva Infraestrutura de Mobilidade S.A. to acquire up to 100% of the shares representing the capital stock of Companhia de Participações em Concessões (CPC Aeroportos), for approximately US$936 million. CPC Aeroportos is an operator of 20 airports in Latin America, including 17 in Brazil, one in Costa Rica, one in Ecuador and one in Curaçao, and is a wholly-owned subsidiary of Motiva de Infraestructura de Mobilidade, S.A. The closing of the transaction, which is expected to occur during the second quarter of 2026, is subject to customary conditions precedent, including various regulatory approvals related to airport infrastructure and economic competition in Brazil. We expect to secure financing from JPMorgan Chase Bank, N.A. to fund the transaction.
Aeropuerto de Cancún’s incurrence of debt may limit our ability to obtain financing for future acquisitions or transactions. We may also be unable to fully implement our business plans and strategies for the integration of the above-mentioned business into ours. The business growth opportunities, revenue benefits and other benefits expected to result from this acquisition may be delayed or not achieved as expected. To the extent that we incur higher integration costs or achieve lower revenue benefits or fewer cost savings than expected, our results of operations and financial condition may be adversely affected.
We may also explore other business opportunities from time to time, which may result in risks and uncertainties similar to those described above. Our inability to successfully manage the risks and uncertainties related to such business opportunities could have a material adverse effect on our revenues, expenses and net income.
Our LMM Airport business is conducted through Aerostar, which has a minority shareholder.
On May 26, 2017 we acquired an additional 10% interest in Aerostar from our former joint venture partner, Oaktree Capital Management, L.P. (“Oaktree Capital”), increasing our total interest to 60.0%. The minority shareholder in Aerostar is PSP Investments, which acquired a 40.0% ownership interest in Aerostar from Oaktree Capital. We received all regulatory approvals for this transaction and, starting June 1, 2017, began to consolidate Aerostar’s results into our financial statements. All operating and management decisions relating to Aerostar, except for major decisions, require the approval of the majority of the votes of the managers. However, major decisions, including requiring the members to make additional capital contributions, setting Aerostar’s annual budget and approving distributions to Aerostar’s members, require a supermajority vote of Aerostar’s managers (a supermajority defined as a majority consisting of at least one manager designated by each member). Due to our 60% interest in Aerostar, we are entitled to designate a majority of members to the board of managers.
Our interest and strategies in Aerostar’s operation of the LMM Airport may differ from those of PSP Investments because of the different nature of our respective businesses and for other reasons. These diverging interests may impair our ability to reach agreement with PSP Investments on certain major decisions. In the event that the managers appointed by each Aeropuerto de Cancún and PSP Investments cannot reach an agreement on certain major decisions and there is a deadlock, any manager may refer the deadlock to the Chief Executive Officers of ASUR or AviAlliance Canada Inc., a wholly-owned subsidiary of PSP Investments (“AviAlliance”). If the Chief Executive Officers are unable to resolve the deadlock, then the matter will be referred to a non-binding mediation process. Finally, if the matter is not resolved through mediation, then either member can submit the dispute to final and binding arbitration. In the event that we do not reach an agreement with PSP Investments on an issue that requires the supermajority approval of the managers, the delay and cost resulting from a deadlock could adversely affect the operations of the LMM Airport and in turn could have a material adverse effect on our business, financial condition, results of operations, cash flows, prospects and/or the market prices of our membership interests in Aerostar.
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For a discussion of Aerostar’s operating agreement and how it governs our involvement in Aerostar, see “Item 4. Information on the Company—Business Overview—Aerostar’s Operating Agreement.”
We are exposed to risks inherent to the operation of airports.
We are obligated to protect the public at our airports and to reduce the risk of accidents. As with any company dealing with members of the public, we must implement certain measures for the protection of the public, such as fire safety in public spaces, design and maintenance of car parking facilities and access routes to meet road safety rules. We are also obligated to take certain measures related to aviation activities, such as maintenance, management and supervision of aviation facilities, rescue and fire-fighting services for aircraft, measurement of runway friction coefficients and measures to control the threat from birds and other wildlife on airport sites. These obligations could increase our exposure to liability to third parties for personal injury or property damage resulting from our operations.
Our insurance policies may not provide sufficient coverage against all liabilities.
While we seek to insure all reasonable risks, we can offer no assurance that our insurance policies would cover all of our liabilities in the event of an accident, terrorist attack or other incident. The markets for airport insurance and construction insurance are limited, and a change in coverage policy by the insurance companies involved could reduce our ability to obtain and maintain adequate or cost-effective coverage. A certain number of our assets cannot, by their nature, be covered by property insurance (notably aircraft movement areas, and certain civil engineering works and infrastructure). In addition, we do not currently carry business interruption insurance.
Our sustainability targets and objectives included in our sustainability report and other public statements may expose us to numerous risks.
We have developed, and will continue to develop, targets and objectives related to sustainability initiatives, including our corporate governance goals, emissions reduction targets and energy efficiency strategies.
On April 16, 2026, we published our Sustainability Report for the year 2025 (the “Sustainability Report”), describing the measures we implemented towards achieving our environmental, social and governance goals, and to set new strategic objectives for the benefit of the company and our stakeholders. In the short and medium terms (2026-2029), our main sustainability objectives are to work towards emissions reductions and energy efficiency through both on-site and off-site generation of solar power, adopt measures to supplement our water consumption with systems to capture and use rainwater and create succession plans for our independent Board members and key executives. In the long term, we intend to make our operations carbon neutral, promote gender equity, align our corporate governance with best practice and increase our participation in and support for local communities. We cannot assure that the objectives set forth in our Sustainability Report will be achieved or achieved on the stated timelines. Further, our ability to achieve our stated objectives, including emissions reductions, energy efficiency and sustainable goals towards local communities, is subject to numerous factors and conditions, some of which are outside of our control.
Our efforts to research, establish, accomplish, and accurately report on our sustainable objectives may expose us to operational, reputational, financial, legal, and other risks. Our business may face increased scrutiny from investors and other stakeholders related to our sustainability initiatives, including our publicly announced objectives and those set forth in our Sustainability Report, as well as our methodologies and timelines for pursuing those initiatives. If our sustainability initiatives do not meet evolving investor or other stakeholder expectations and standards, our reputation, ability to attract or retain employees, and attractiveness as an investment or business partner may be negatively impacted. Similarly, our failure to achieve our announced objectives or comply with ethical, environmental, or other standards, including reporting standards, may adversely impact our business. Furthermore, failure to achieve these objectives within the announced timelines, or at all, may adversely affect our business or reputation, or may expose us to government enforcement actions or private litigation.
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Risks Related to the Regulation of Our Business
The price regulatory system applicable to our Mexican airports imposes maximum rates for each airport, which does not guarantee that our consolidated results of operations, or that the results of operations of any Mexican airport, will be profitable.
The system of price regulation applicable to our Mexican airports establishes an annual maximum rate for each airport, which is the maximum annual amount of revenues per workload unit (which is equal to one passenger or 100 kilograms (220 pounds) of cargo) that we may earn at that airport from services subject to price regulation. The maximum rates for our Mexican airports have been determined for each year through December 31, 2025. The Company recognized total regulated revenues from airports operated in Mexico for the year ended December 31, 2025 of Ps. 14,680 million. Management monitors and adjusts its income on a regular basis in order for its annual invoicing not to exceed the maximum rate limits at each of the airports operated by the Company in Mexico. Determining whether revenues are in excess of the maximum rates established in the concession requires management to obtain specific information, such as passenger traffic and cargo statistics, as well as the National Producer Price Index (excluding oil), authorized rates for airport services and the rate for airport use published by the Mexican regulator.
On October 4, 2023, ASUR received a notification from the AFAC, a decentralized entity of the SICT, informing the amendment of the terms of the tariff base regulation set forth in Exhibit 7 of the concession titles (the “Amended Rate Regulation”) dated June 29, 1998, as amended on March 19, 1999. Section 10.8 of the concession titles provides that any of the terms of the concession may be amended by mutual agreement between the SICT and ASUR in accordance with applicable law. Following unsuccessful negotiations between ASUR and the SICT, on October 19, 2023, the AFAC decided to unilaterally modify the terms of Exhibit 7 of the concession titles. The legal basis pursuant to which the Ministry of Infrastructure, Communications and Transportation justified the amendment were, among others, the recently amended Mexican Airport Law and its related regulatory decrees, as well as the AFAC internal regulations and operation manuals entrusting this entity with broad discretionary powers over airport regulation. The amendment was further justified by the Ministry of Infrastructure, Communications and Transportation on the grounds that, because revenues derived from airport concessions had substantially surpassed the Mexican consumer price index and transport index, such increase had adversely impacted domestic air transport demand and had negatively affected consumers.
As of the date of this report, the Company’s operating results were not significantly impacted as a result of the tariff adjustments made by the authority. We cannot guarantee that the AFAC or any other regulatory authority will refrain from further amending the terms of the tariff base regulation, which may potentially affect the maximum rates for each airport and result in a material adverse impact on our business operations, financial performance, and overall results. Under the terms of our Mexican concessions, there is no guarantee that the results of operations of any airport will be profitable.
Further, under the terms of our Mexican concessions, each of our subsidiary concession holders is required to submit an updated master development plan for approval by the Ministry of Infrastructure, Communications and Transportation every five years. On December 11, 2023, the AFAC, based on the regular review of the maximum join rate on the new bases, determined the maximum joint rate of our Mexican airports for the period commencing on January 1, 2024 and ending December 31, 2028, as well as the respective efficiency factor in Pesos as of December 31, 2022. See “Item 5. Operating and Financial Review and Prospects” for additional information on changes of maximum joint rate calculation. For a discussion of the framework for establishing our maximum rates and the application of these rates, see “Item 4. Information on the Company—Mexican Regulatory Framework—Price Regulation”.
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Our Mexican concessions provide that an airport’s maximum rates will be adjusted periodically for inflation. Although we are entitled to request additional adjustments to an airport’s maximum rates under certain circumstances, including the amendment of certain provisions of the Mexican Airport Law, our concessions provide that such a request will be approved only if the Ministry of Infrastructure, Communications and Transportation determines that certain events specified in our Mexican concessions have occurred. The circumstances under which we are entitled to an adjustment are described under “Item 4. Information on the Company—Mexican Regulatory Framework—Price Regulation—Special Adjustments to Maximum Rates.” There can be no assurance that any such request would be made or granted. If our request is not submitted in a timely manner, or if the adjustment is not approved by the Ministry of Infrastructure, Communications and Transportation, our business, financial condition and results of operations may be adversely affected.
Our results of operations may be adversely affected by required efficiency adjustments to our Mexican maximum rates.
Our Mexican maximum rates are subject to annual efficiency adjustments, which have the effect of reducing the maximum rates for each year to reflect projected efficiency improvements. For the five-year term ending December 31, 2023, an annual efficiency adjustment factor of 0.70% was established by the Ministry of Infrastructure, Communications and Transportation.
The annual efficiency adjustment factor that will apply for the five-year term that started on January 1, 2024 and ending on December 31, 2028, is 0.80%. Future annual efficiency adjustments will be determined by the Ministry of Infrastructure, Communications and Transportation in connection with the setting of each airport’s maximum rates every five years. For a description of these efficiency adjustments, see “Item 4. Information on the Company—Mexican Regulatory Framework—Price Regulation—Methodology for Determining Future Maximum Rates.” We cannot assure you that we will achieve efficiency improvements sufficient to allow us to maintain or increase our operating income as a result of the progressive decrease in each airport’s maximum rate.
Changes to Mexican laws, regulations and decrees applicable to us could have a material adverse impact on our results of operations.
The Mexican government has in the past implemented changes and may in the future implement additional reforms to the tax laws applicable to Mexican companies including ASUR. In addition, changes to the Constitución Política de los Estados Unidos Mexicanos (“Mexican Constitution”) or to any other Mexican laws could also have a material adverse impact on our results of operations and cash flows. For example, on May 23, 2014, Mexico’s Federal Economic Competition Law (Ley Federal de Competencia Económica) (“LFCE”) was enacted. The LFCE grants broad powers to the Mexican National Antitrust Comission (Comisión Nacional Antimonopolio) (“CNA”), including the abilities to regulate essential facilities, investigate companies, and eliminate barriers to competition in order to promote access to the market and order the divestment of assets. The LFCE also entrusts CNA with the ability to conduct merger-control review and investigate anti-competitive behavior, and sets forth significant liabilities that may be incurred for violations of the law, including fines. CNA’s decisions may only be challenged through indirect appeal (amparo indirecto).
Moreover, if the CNA determines that a specific service or product is an essential facility, it has the ability to regulate access conditions, prices, tariffs or technical conditions for or in connection with the specific service or product. The CNA has previously determined that certain elements of the infrastructure at Mexico City International Airport may be considered essential facilities. Should the CNA determine that all or part of the services we render in our Mexican airports are considered an essential facility, we may be required to implement significant changes to the way we currently do our business, which could have a material adverse impact on our results of operations.
In connection with tax matters, the terms of our concessions do not exempt us from changes to the Mexican tax laws. Should the Mexican government implement changes to the tax laws that result in our having significantly higher income tax liability, we will be required to pay the higher amounts due pursuant to any such changes, which could have a material adverse impact on our results of operations.
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On May 3, 2023, the Mexican government published a decree amending the Federal Public Administration Law, the Mexican Army and Airforce Law, the Mexican Airport Law and the Mexican Civil Aviation Law, introducing several changes such as (i) changing the administrative nature of the AFAC from a regulatory agency to a decentralized administrative entity (órgano administrativo desconcentrado) of the Ministry of Infrastructure, Communications, and Transportation; (ii) enhancing the regulatory and supervisory responsibilities of the AFAC over civil aviation matters, which were previously assigned to the SICT, including the issuance of technical and administrative regulations applicable to the master development programs; (iii) authorizing the Ministry of Infrastructure, Communications, and Transportation to grant, for an indefinite term, assignments to state-owned entities for the management, operation, and, if applicable, construction of airports; (iv) mandating additional obligations for concessionaires to notify the AFAC of changes in the board of directors, amendments to the bylaws, or any change in the corporate structure of the concessionaire; (v) modifying certain causes for revocation of concessions and establishing applicable sanctions for concessionaires not complying with flight schedules, timetables, or any other requirements; (vi) including a list of causes for revocation of permits granted to aerodromes; (vii) mandating permit holders and concessionaires of civil aerodromes to allow the use and provide airport services to military aircraft for search and rescue activities, for providing support in case of disasters and emergencies, and (viii) prohibiting cabotage practices of foreign airlines in Mexico. As of the date of this filing, we cannot determine whether these amendments could affect the Mexican economy or our operations in Mexico.
Additionally, the amendments to the Mexican Airport Law and the Mexican Civil Aviation Law entrust the AFAC with greater authority over aviation matters, including (i) the ability to grant, extend, suspend, amend or revoke authorizations and permits, (ii) overseeing compliance with master development plans and concession terms, (iii) issuing air traffic rules, (iv) the ability to set the parameters for landing and take-off schedules of aircrafts in civilian aerodromes with congested air traffic, and (v) ordering the partial or total closure of civil aerodromes, when they do not fulfill safety conditions.
Further, on November 13, 2023, the Mexican government published a decree amending the Mexican Federal Duties Law. As a result of such amendment, the concession fee that concession holders must pay for the use of federal airports was increased from 5.0% to 9.0% of their gross annual regulated revenues derived from such use. The amendment became effective on January 1, 2024. ASUR is currently evaluating the impact that the concession fee increase may have on its business, results of operations and financial condition.
On September 15, 2024, a decree was published in the Official Gazette amending the Mexican Constitution which introduced several transformative measures to the judicial branch (the “Judicial Reform”), including: (i) nearly all judges, including the Supreme Court justices, will now be elected by popular vote; (ii) qualifications for judgeships became more lenient, broadening the pool of potential candidates; (iii) judges are no longer authorized to issue injunctive relief with general effects against laws and regulations in amparo cases and constitutional controversies; and (iv) a newly established judicial disciplinary tribunal, composed of popularly elected members, has been entrusted to issue final and unappealable rulings to sanction judges.
As part of the constitutional mandate of the reform, several secondary laws have also been enacted, including the Judicial Branch Law (Ley Orgánica del Poder Judicial), Judicial Services Law (Ley de Carrera Judicial), and General Administrative Responsibilities Law (Ley General de Responsabilidades Administrativas). These laws aim to operationalize constitutional changes and set the framework for judicial elections, career progression, and accountability mechanisms. Additionally, 16 states have enacted local constitutional reforms mirroring the federal amendments.
The Judicial Reform also introduced the popular election of Supreme Court justices, representing a fundamental departure from the prior appointment-based system. As a result of the Judicial Reform, eight of the eleven sitting justices announced their resignations, effective August 31, 2025. The reform further mandates the complete replacement of all local and federal judges through popular votes. The first election took place on June 1, 2025, in which Mexican citizens voted directly for all nine justices currently comprising the Supreme Court, as well as for 50% of all other federal and local judicial positions subject to replacement. The remaining 50% of such positions will be filled in the summer of 2027. The extent to which the new composition and election mechanism of the Supreme Court may affect the interpretation or enforcement of laws and regulations applicable to our business, including our concession agreements, cannot be predicted at this time.
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Following the June 2025 elections, the new composition of the Supreme Court took office on September 1, 2025. In addition to replacing its justices, the Judicial Reform modified the structure and operation of the Supreme Court, including a reduction in the number of justices from eleven to nine and the elimination of its chambers. Accordingly, on September 4, 2025, the Supreme Court issued internal operating rules and case management procedures governing its sessions, the preparation and listing of matters with draft resolutions, and the receipt, registration and assignment of cases within its jurisdiction. These instruments regulate the internal functioning of the Supreme Court, including the procedures governing its sessions, the preparation and listing of matters accompanied by draft resolutions, and the receipt, registration and assignment of cases within its jurisdiction, among other procedural and administrative aspects.
On December 20, 2024, a set of constitutional reforms was enacted to dissolve several autonomous constitutional entities, namely the National Institute for Transparency, Access to Information, and Personal Data Protection (Instituto Nacional de Transparencia, Acceso a la Información y Protección de Datos Personales) (“INAI”), the National Council for the Evaluation of Social Development Policy (Consejo Nacional de Evaluación de la Política de Desarrollo Social) (“Coneval”), the Federal Economics Competition Commission (“COFECE”), the Federal Telecommunications Institute (Instituto Federal de Telecomunicaciones) (“IFT”), the National Commission for the Continuous Improvement of Education (Comisión Nacional para la Mejora Continua de la Educación) (“MEJORADU”), and the Energy Regulatory Commission (Comisión Reguladora de Energía) (“CRE”). Pursuant to the reforms, these entities will transfer their functions to government ministries controlled by the executive branch. Changes to long-standing Mexican government policies could affect the resilience of the Mexican economy in the event of a global economic downturn.
Under such reform, the functions previously performed by COFECE were transferred to the CNA, a new entity within the Ministry of Economy, with its own legal standing and assets (i.e., a decentralized public entity). Meanwhile, the functions of the IFT, except for those that it currently holds as an antitrust enforcer (which were transferred to the CNA), will be transferred to the Digital Transformation and Telecommunications Agency, (Agencia de Transformación Digital y Telecomunicaciones) whose creation was proposed and approved in November 2024.
One of the most relevant constitutional reforms in the antitrust field was the creation of the CNA, which means that the responsibility for the enforcement of free competition laws across all sectors and the implementation and enforcement of asymmetric regulation in the telecommunications and broadcasting sectors, now vests upon the CNA, a decentralized public entity within the Ministry of Economy. These constitutional reforms came into effect within 180 days following the enactment of the secondary legislation, namely, the amendments to the LFCE, which were enacted on July 16, 2025. In addition to creating the CNA and establishing its structure and powers, the amendments to the LFCE introduced lower monetary thresholds for merger control, increased fines for substantive infringements (e.g., cartels, abuse of dominance, and unlawful mergers), and higher fines for procedural infringements.
In February 2026, President Sheinbaum introduced a constitutional reform proposal contemplating several changes to Mexico’s electoral system, including modifications to the composition of Congress, adjustments to public financing for political parties and changes to certain electoral mechanisms. On March 11, 2026, the Mexican Chamber of Deputies rejected the proposal, as it failed to obtain the qualified majority required for constitutional amendments. The federal government has indicated that it may pursue alternative legislative proposals or additional modifications in electoral matters.
On March 25, 2026, following the rejection of the original electoral reform due to the lack of a qualified majority, the senate approved a modified version of the initiative referred to as “Plan B”, primarily aimed at reducing costs and privileges within electoral and legislative bodies. However, it excludes substantive elements of the initial proposal, particularly amendments to the recall of election (revocación de mandato), which remains in force under its current constitutional framework. The reform is therefore substantially unchanged from the original proposal, except for adjustments related to the recall election mechanism. As of the date of this report, we cannot confirm whether these changes will negatively impact our operations.
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Our Mexican concessions may be terminated under various circumstances, some of which are beyond our control.
We operate each of our Mexican airports under 50-year concessions granted as of 1998 by the Mexican government. Any of the Mexican concessions may be terminated for a variety of reasons. For example, a concession may be terminated if we fail to make the committed investments required by the terms of that concession. In addition, in the event that we exceed the applicable maximum rate at an airport in any year, the Ministry of Infrastructure, Communications and Transportation is entitled to reduce the applicable maximum rate at that airport for the subsequent year and assess a penalty. Violations of certain terms of a concession (including violations for exceeding the applicable maximum rate) can result in termination only if sanctions have been imposed for violation of the relevant term at least three times. For a description of the latest amendment to the Mexican tariff base regulation effective as of October 2023, see “Item 3. Key Information—Risk Factors— Risks Related to the Regulation of Our Business— The price regulatory system applicable to our Mexican airports imposes maximum rates for each airport—The price regulatory system does not guarantee that our consolidated results of operations, or that the results of operations of any Mexican airport, will be profitable.” Violations of other terms of a concession can result in the immediate termination of the concession. We would face similar sanctions for violations of the Mexican Airport Law or its regulations. Although we believe we are currently complying with the principal requirements of the Mexican Airport Law and its regulations, we may not be in compliance with certain requirements under the regulations. These violations could result in fines or other sanctions being assessed by the Ministry of Infrastructure, Communications and Transportation, and are among the violations that could result in termination of a concession if they occur three or more times. For a description of the consequences that may result from the violation of various terms of our Mexican concessions, the Mexican Airport Law or its regulations, see “Item 4. Information on the Company—Mexican Regulatory Framework—Penalties and Termination and Revocation of Concessions and Concession Assets.” Under applicable Mexican law and the terms of our concessions, our concessions may also be subject to additional conditions, which we may be unable to meet. Failure to meet these conditions may also result in fines, other sanctions and the termination of the Mexican concessions.
In addition, the Mexican government may terminate one or more of our concessions at any time through reversion (rescate), if, in accordance with applicable Mexican law, it determines that it is required by national security or in the public interest to do so. In the event of a reversion (rescate) of the public domain assets that are the subject of our concessions, such assets would revert to the Mexican government and the Mexican government under Mexican law would be required to compensate us, taking into consideration investments made and depreciation of the relevant assets, but not the value of the assets subject to the concessions, based on the methodology set forth in a reversion (rescate) resolution issued by the Mexican Ministry of Infrastructure, Communications and Transportation. There can be no assurance that we will receive compensation equivalent to the value of our investment in our concessions and related assets in the event of such a reversion (rescate).
In the event of war, natural disaster, grave disruption of the public order or an imminent threat to national security, internal peace or the economy, the Mexican government may carry out a requisition (requisa — step-in rights) with respect to our airports. The step-in rights may be exercised by the Mexican government as long as the circumstances warrant. In all cases, except international war, the Mexican government is required to indemnify us for damages and lost profits (daños y perjuicios) caused by such requisition, calculated at their real value (valor real); provided that if we were to contest the amount of such indemnification, the amount of the indemnity with respect to damages (daños) shall be fixed by expert appraisers appointed by us and the Mexican government, and the amount of the indemnity with respect to lost profits (perjuicios) shall be calculated taking into consideration the average net income during the year immediately prior to the requisition. In the event of requisition due to international war, the Mexican government would not be obligated to indemnify us.
In the event that any one of our Mexican concessions is terminated, whether through reversion (rescate), requisition (requisa) or otherwise, our other Mexican concessions may also be terminated. Thus, the loss of any of our concessions would have a material adverse effect on our business and results of operations. For a discussion of events which may lead to a termination of a Mexican concession, see “Item 4. Information on the Company—Mexican Regulatory Framework—Penalties and Termination and Revocation of Concessions and Concession Assets.” Moreover, we are required to continue operating each of our nine Mexican airports for the duration of our concessions, even if one or more of them are unprofitable.
The Mexican government could grant new concessions that compete with our airports, including the Cancún International Airport.
The Mexican government could grant additional concessions to operate existing government managed airports, or authorize the construction of new airports, that could compete directly with our airports. We may be denied the right to participate in the bidding processes to win these concessions.
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In October 2020, the Mexican President announced that as part of an effort to develop the southeast of Mexico, the Mexican Army would build and operate a new airport in the City of Tulum, State of Quintana Roo (the “Felipe Carrillo Puerto International Airport”). The Felipe Carrillo Puerto International Airport, which is located 130 km south of the Cancún International Airport, was officially inaugurated on December 1, 2023 and started operating international flights in late March 2024. We are unable to predict the effect that the Felipe Carrillo Puerto International Airport will have on our airport’s passenger traffic or operating results.
During the months of November and December of 2023, the SICT assigned 11 airport concessions for an indefinite term to a newly created state-owned company called Grupo Aeroportuario, Ferroviario, de Servicios Auxiliares y Conexos, Olmeca-Maya-Mexica, S.A. de C.V. (“GAFSACOMM”), which is operated by the Mexican Ministry of Defense (Secretaría de la Defensa Nacional) (“SEDENA”). Such assignments include the rights to manage, operate, use and build airports in the states of Veracruz and Quintana Roo. On April 30, 2024, the SICT assigned GAFSACCOM a concession for the rights to manage, operate, use and build the International Airport of the North located in the state of Nuevo Leon. As of the date of this report, GAFSACOMM operates 12 airports across Mexico under the commercial brand “Grupo Mundo Maya”; the Tulum International Airport, the Puebla International Airport, the International Airport of the North (Nuevo León), the Palenque International Airport, the Chetumal International Airport, the Campeche International Airport, the Ciudad Victoria International Airport, the Nogales International Airport, the Nuevo Laredo International Airport, the Uruapan International Airport, the Tamuín National Airport and the Ixtepec National Airport. Mexico’s military also oversees the Felipe Ángeles International Airport and Mexico City’s airport. ASUR continues to evaluate the impact that the establishment and expansion of GAFSACOMM may have on its business, results of operation and financial condition.
In addition, in certain circumstances, the Mexican government can grant concessions without conducting a public bidding process. Furthermore, the CNA has the power, under certain circumstances, to reject awards of concessions granted by the government and/or object to the participation of certain bidders in bidding process. Please see “Item 4. Information on the Company—Mexican Regulatory Framework—Grants of New Concessions” below. Grants of new concessions could adversely affect our business, results of operations, prospects and financial condition.
We provide a public service regulated by the Mexican government and our flexibility in managing our aeronautical activities is limited by the regulatory environment in which we operate.
Our aeronautical fees charged to airlines and passengers are, like most airports in other countries, regulated. In 2023, 2024, and 2025, 59.1%, 60.1%, and 51.2% respectively, of our total revenues were earned from aeronautical services at our Mexican airports, which were subject to price regulation under our maximum rates in Mexico. In 2025, 52.1%of our total revenues were earned from aeronautical services at all of our airports. These Mexican maximum rate regulations may limit our flexibility in operating our aeronautical activities, which could have a material adverse effect on our business, results of operations, prospects and financial condition. For a description of the latest amendment to the Mexican tariff base regulation effective as of October 2023, see “Item 3. Key Information—Risk Factors— Risks Related to the Regulation of Our Business— The price regulatory system applicable to our Mexican airports imposes maximum rates for each airport—The price regulatory system does not guarantee that our consolidated results of operations, or that the results of operations of any Mexican airport, will be profitable.” In addition, several of the regulations applicable to our operations that affect our profitability are authorized (as in the case of our master development programs in Mexico) or established (as in the case of our maximum rates in Mexico) by the Ministry of Infrastructure, Communications and Transportation for five-year terms. Except under limited circumstances, we generally do not have the ability unilaterally to change our obligations (such as the investment obligations under our Mexican master development programs or the obligation under Mexican concessions to provide a public service) or increase our maximum rates applicable under those regulations should our passenger traffic or other assumptions on which the regulations were based change during the applicable term. In addition, there can be no assurance that this price regulation system will not be amended in a manner that would cause additional sources of our revenues to be regulated.
We cannot predict how the Mexican regulations governing our business will be applied.
Although Mexican law establishes ranges of sanctions that might be imposed should we fail to comply with the terms of one of our Mexican concessions, the Mexican Airport Law and its regulations or other applicable law, we cannot predict the sanctions that are likely to be assessed for a given violation within these ranges. We cannot assure you that we will not encounter difficulties in complying with these laws, regulations and instruments. Moreover, there can be no assurance that the laws and regulations governing our business will not change.
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If we exceed the maximum rate at any Mexican airport at the end of any year, we could be subject to sanctions.
Historically, we have set the prices we charge for regulated services at each Mexican airport as close as possible to the prices we are allowed to charge under the maximum rate for that airport. We expect to continue to pursue this pricing strategy in the future. For example, in 2025, our revenues subject to maximum rate regulation represented 99.3% of the amount we were entitled to earn under the maximum rates for all of our Mexican airports. There can be no assurance that we will be able to establish prices in the future that allow us to collect virtually all of the revenue we are entitled to earn from services subject to price regulation.
The specific prices we charge for regulated services are determined based on various factors, including projections of passenger traffic volumes, the Mexican producer price index (excluding petroleum) and the value of the peso relative to the U.S. dollar. These variables are outside of our control. Our projections could differ from the applicable actual data, and, if these differences occur at the end of any year, they could cause us to exceed the maximum rate at any one or more of our Mexican airports during that year.
If we exceed the maximum rate at any airport at the end of any year, the Ministry of Infrastructure, Communications and Transportation may assess a fine and may reduce the maximum rate at that airport in the subsequent year. The imposition of sanctions for violations of certain terms of a concession, including for exceeding the airport’s maximum rates, can result in termination of the concession if the relevant term has been violated and sanctions have been imposed at least three times. In the event that any one of our Mexican concessions is terminated, our other concessions may also be terminated.
Depreciation of the Mexican peso may cause us to exceed our maximum rates.
We aim to charge prices that are as close as possible to our maximum chargeable rates, and we are entitled to adjust our specific prices only once every six months (or earlier upon a cumulative increase of 5.0% in the Mexican producer price index (excluding petroleum)). However, we generally collect passenger charges from airlines 30 to 115 days following the date of each flight. Such tariffs for the services that we provide to international flights or international passengers in our Mexican airports are generally denominated in U.S. dollars but are paid in Mexican pesos based on the average exchange rate for the month prior to each flight. Accordingly, depreciation of the peso, particularly late in the year, could cause us to exceed the maximum rates at one or more of our airports, which could lead to the imposition of fines and the termination of one or more of our concessions. From December 31, 2024 to December 31, 2025, the peso appreciated by 13.8%, from Ps. 20.86 per U.S.$1.00 on December 31, 2024, to Ps. 18.01 per U.S.$1.00 on December 31, 2025, and experienced intra-year volatility. In the event that any one of our Mexican concessions is terminated, our other concessions may also be terminated.
The price regulatory system applicable to our Colombian airports does not guarantee that our consolidated results of operations, or that the results of operations of any Colombian airport, will be profitable.
Our Colombian airports receive two kinds of remuneration for their operations, depending on the types of activities carried out in each airport. First, as a result of aeronautical operations at each airport (excluding fuel supply), Airplan charges airlines regulated tariffs for activities such as aircraft parking rights, subject to annual caps set by Aerocivil. These regulated tariffs are adjusted on an annual basis based on the Colombian consumer price index (Índice de Precios al Consumidor), or the IPC. Airplan also charges non-regulated tariffs for commercial activities, including leases and vehicle parking services, that may be set by the concession holder based upon supply and demand.
Although we are entitled to request additional adjustments to the regulated tariffs, any modification or amendment is subject to the approval of Aerocivil. If our request is not submitted in a timely manner, or if the adjustment is not approved by Aerocivil, our business, financial condition and results of operations may be adversely affected. For additional information, see “Item 4—Business Overview—Our Colombian Airports—Aeronautical Revenues.”
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Our Colombian concessions may be terminated under various circumstances, some of which are beyond our control, and such termination could have a material adverse effect on our business and results of operations.
In the event of noncompliance with the terms of the Colombian concession agreement, the National Infrastructure Agency (Agencia Nacional de Infraestructura or “ANI”) may rescind the agreement and assess a penalty, the amount of which varies depending on the stage of the concession. Airplan was subject to a maximum penalty of U.S.$20 million during the adaptation and modernization stage of the Colombian concession. Airplan completed the adaptation and modernization stage on March 6, 2020 and is currently in the maintenance stage which it expects to end in April 2032. During the maintenance stage of the concession, this maximum penalty may be reduced by 30.0%, 50.0% or 70.0%, depending on when the breach occurs.
Under applicable Colombian laws and the terms of the concession, a concession may be terminated upon certain events, including but not limited to: reaching the expected revenues set forth in the concession agreement; dissolution or bankruptcy of our subsidiary Airplan; and a failure to pay fines imposed due to noncompliance with the concession agreement. In addition, the Colombian government may terminate one or more of our concessions if it determines that it is required by national security or in the public interest to do so. The loss of our Colombian concessions could have a material adverse effect on our business and results of operations. For additional information, see “Item 4—Colombian Regulatory Framework—Penalties and Termination of Colombian Concession.”
Changes in existing or new laws and regulations in Mexico, Colombia, the United States and Puerto Rico, including tax laws, or regulatory enforcement priorities could adversely affect our businesses or investments.
Laws and regulations at the local, regional and national levels, in Mexico, Colombia, the United States and Puerto Rico, change frequently, and the changes can impose significant costs and other burdens of compliance on our businesses or investments. Any changes in regulations, the interpretation of existing regulations, the internal criteria of the governmental institutions executing such regulations, the imposition of additional regulations or the enactment of any new legislations that affect the airport sector in matters of employment/labor, transportation/logistics, energy costs, tax or environmental issues, could have an adverse impact, directly or indirectly, on our financial condition and results of operations.
The technical and specialization level of the environmental regulations in Mexico has significantly deepened and increased in recent years, and the enforcement of environmental laws is becoming substantially more stringent. Considering the global context, we would expect this trend to continue and to be stimulated by international agreements between Mexico and the United States, and other countries or international organizations. In any case, there can be no assurances that environmental regulations or their enforcement will not change in a manner that could have a material adverse effect on our business, results of operations, prospects or financial conditions.
In addition, our subsidiary Aerostar as operator of the LMM Airport is subject to the United States’ federal aviation laws and regulations issued by the FAA and by the Transportation Security Administration, or TSA. However, because the LMM Airport is the first airport to be privatized under the Airport Privatization Pilot Program, it is unclear how the FAA will apply to Aerostar and the LMM Airport existing and future laws and regulations applicable to airport operators in the United States. If Aerostar fails to comply with existing or future laws and regulations, it could be subject to fines or be required to incur expenses in order to bring the LMM Airport into compliance. This and any other future changes in existing laws and changes in enforcement priorities by the governmental agencies charged with enforcing existing laws and regulations, as well as changes in the interpretation of these laws and regulations, can increase our businesses and investments’ compliance costs.
Risks Related to Mexico
Developments in other countries may affect the prices of securities issued by Mexican companies.
The Mexican economy may be, to varying degrees, affected by economic and market conditions in other countries. Although economic conditions in other countries may differ significantly from economic conditions in Mexico, investors’ reactions to adverse developments in other countries may have an adverse effect on the market value of securities of Mexican issuers. In October 1997, prices of both Mexican debt and equity securities decreased substantially as a result of the sharp drop in Asian securities markets. Similarly, in the second half of 1998 and in early 1999, prices of Mexican securities were adversely affected by the economic crises in Russia and Brazil. The Mexican debt and equities markets also have been adversely affected by ongoing developments in the global credit markets.
23
In addition, in recent years, economic conditions in Mexico have become increasingly correlated with economic conditions in the United States as a result of the North American Free Trade Agreement, or NAFTA (further replaced by the United States - Mexico - Canada Agreement, or USMCA), and increased economic activity between the two countries.
The United States is Mexico’s primary trading partner, and receives over 80 percent of Mexico’s total exports. Weakened trading ties between Mexico and the United States could hurt industrial growth in the Mexican economy. If the USMCA is terminated or otherwise modified, such termination or modification could materially impact Mexico’s aviation sector. The imposition of tariffs on imported goods, any changes in policies, including policies relating to restrictions in investments in the oil and electricity sectors in Mexico, or other related events affecting U.S. trade policy with respect to Mexico, could have a negative impact on the Mexican economy and foreign direct investment in Mexico. See “The assumption of Donald J. Trump as President of the United States may create uncertainty for relations between Mexico and the United States, and could have a material adverse effect on our business, financial condition and results of operations.” While it is difficult to predict their scope and effect, such changes could have a material adverse effect on our business, financial condition, results of operations, cash flows, prospects and/or the market price of our ADSs. We cannot assure you that events in other emerging market countries, in the United States or elsewhere will not materially and adversely affect our business, financial condition or results of operations.
The assumption of Donald J. Trump as President of the United States may create uncertainty for relations between Mexico and the United States, and could have a material adverse effect on our business, financial condition and results of operations.
On November 5, 2024, Donald J. Trump was elected as 47th president of the United States. Upon taking office, President Trump indicated his intent to alter the U.S. approach to international trade policy and in some cases to renegotiate, or potentially terminate, certain existing bilateral or multi-lateral trade agreements and treaties with foreign countries and has made proposals and taken actions related thereto. In April 2025, the United States imposed a series of tariffs on various trading partners, including so-called reciprocal tariffs on all countries other than Canada and Mexico, tariffs on Mexican and Canadian goods that do not satisfy the U.S.-Mexico Canada Agreement (USMCA), higher tariffs on China, and still higher tariffs on other products, including steel, aluminum, copper and automobiles. Since their introduction, these measures have been modified through negotiations, exclusions, retaliatory actions, and administrative and legal developments, including proceedings before the U.S. Court of International Trade. While certain tariffs have been adjusted, the overall U.S. tariff regime remains significantly more restrictive than prior to April 2025. Estimates indicate that the average U.S. tariff rate increased from approximately 2.3% in February 2025 to approximately 9-10% by the end of 2025 and has remained elevated, with some variability, into early 2026. Litigation challenging aspects of these measures is ongoing and could result in further changes, including through potential review by the Supreme Court of the United States.
The imposition of these tariffs and other recent trade policies by the U.S. government have already caused substantial volatility in the international markets and could result in more volatility in the future. Global trade disruption, significant introductions of trade barriers and bilateral trade frictions, together with any future downturns in the global economy resulting therefrom, could adversely affect our financial performance. Weakened trading ties between Mexico and the U.S. could hurt industrial growth in the Mexican economy.
Further, President Trump has increased the enforcement efforts in connection with immigration policy. These increased enforcement efforts have materialized, among others, in mass deportations, raids, the suspension of certain humanitarian assistance programs and increased costs and conditions for certain visa applications. New federal immigration legislation could make it more difficult for Mexican citizens to travel between Mexico and the United States. In addition, new immigration legislation could lead to uncertain economic conditions in Mexico that may affect leisure travel, including travel to and from Mexico. Such restrictions could have a material adverse effect on passenger traffic results at our Mexican airports. Any attempt by President Trump to implement changes to United States-Mexico policy, including actions to withdraw from or materially modify USMCA and to implement immigration reform, could have a material adverse effect on our business, financial condition or results of operations. We cannot assure you to what extent a potential change in the U.S. administration for the four-year period from 2025 to 2029 will affect the country’s economy and on our business, results of operations or financial condition.
24
Appreciation, depreciation or fluctuation of the peso relative to the U.S. dollar could adversely affect our results of operations and financial condition.
In 2025, the peso appreciated by approximately 13.8% against the U.S. dollar. Any continued significant appreciation of the peso could impact our aggregate passenger volume by increasing the cost of travel in Mexico for international passengers. On the other hand, if a depreciation were to resume, it could (notwithstanding other factors) lead to a decrease in Mexican domestic passenger traffic that may not be offset by any increase in international passenger traffic. Depreciation of the peso could impact our aggregate passenger traffic volume by increasing the cost of travel for Mexican domestic passengers, which may adversely affect our results of operations. In addition, there can be no assurance that any depreciation of the peso in the future will result in an increase to international passenger traffic.
In addition, depreciation of the peso against the U.S. dollar may adversely affect the dollar value of an investment in the ADSs and the Series B shares, as well as the dollar value of any dividend or other distributions that we may make.
Although we currently intend to fund the investments required by our business strategy through cash flow from operations and from peso-denominated borrowings and as of December 31, 2025, our Mexican airports did not have dollar-denominated liabilities, we may incur dollar-denominated debt to finance all or a portion of these investments. A devaluation of the peso would increase the debt service cost of any dollar-denominated indebtedness that we may incur and result in foreign exchange losses.
Severe devaluation or depreciation of the peso, or government imposition of exchange controls, may also result in the disruption of the international foreign exchange markets and may limit our ability to transfer or to convert pesos into U.S. dollars and other currencies.
Economic developments in Mexico may adversely affect our business and results of operations.
Although a substantial portion of our revenues is derived from foreign tourism, Mexican domestic passengers in recent years have represented approximately half of the passenger traffic volume in our Mexican airports. In addition, a significant amount of our assets are located, and a significant segment of our operations are conducted, in Mexico. As a result, our business, financial condition and results of operations could be adversely affected by the general condition of the Mexican economy, by a devaluation of the peso, by inflation and high interest rates in Mexico, or by political developments in Mexico.
Mexico has experienced, and may in the future experience, adverse economic conditions.
In the past, Mexico has experienced economic crises, caused by internal and external factors, characterized by exchange rate instability (including large devaluations), high inflation, high domestic interest rates, economic contraction, a reduction of international capital flows, a reduction of liquidity in the banking sector and high unemployment rates. We cannot assume that such conditions will not return or that such conditions will not have a material adverse effect on our business, financial condition or results of operations.
In 2023, Mexican GDP increased by 3.1% and inflation decreased to 4.7%. In 2024, Mexican GDP increased by 1.3% and inflation decreased to 4.2%. In 2025, Mexican GDP increased by 0.7% and inflation decreased to 3.7%. In 2021 and 2022 the outbreak of COVID-19 adversely affected the economy and financial markets of Mexico and its trading partners. While currently COVID-19 is no longer materially adversely affecting Mexico’s economy, the extent to which any future disease, pandemic or epidemic outbreak may impact the Mexican economy is uncertain, as is the extent of further Mexican economic recovery, if any.
If the Mexican economy does not continue to recover, if inflation or interest rates increase significantly or if the Mexican economy is otherwise adversely impacted, our business, financial condition or results of operations could be materially and adversely affected.
Political developments in Mexico could adversely affect our operations.
Our financial condition and results of operations may be adversely affected by changes in Mexico’s political climate to the extent that such changes affect the nation’s economic policies, growth, stability, outlook or regulatory environment.
25
The Mexican government has exercised, and continues to exercise, significant influence over the Mexican economy. Mexican governmental actions concerning the economy and state-owned enterprises could have a significant effect on Mexican private-sector entities in general, and us in particular, as well as on market conditions, prices and returns on securities, including our ADSs.
Andrés Manuel López Obrador, former president for the National Regeneration Movement Party (Movimiento de Regeneración Nacional) (“Morena”), was elected President and took office on December 1, 2018, ending the Institutional Revolutionary Party’s (Partido Revolucionario Institucional) (“PRI”) hold on the presidency. Before taking office, López Obrador submitted to a national referendum the question of whether to continue construction of a new international airport in Mexico City, one of Mexico’s most important infrastructure projects. The construction of the new international airport to replace Mexico City International Airport (AICM) began in 2015. The referendum was carried out by a private company contracted by Morena and through mechanisms not necessarily envisioned in the Constitution. The result of the referendum, announced on October 28, 2018, was to discontinue construction on the new international airport and, in its stead, build a new airport network consisting of three airports near the Mexico City metropolitan area. On December 27, 2018, the López Obrador administration formally terminated work at the new international airport in Mexico City. The López Obrador administration instead decided to add additional runways to the military air base at Santa Lucia and build the Felipe Ángeles International Airport (“AIFA”) to handle Mexico City air traffic. AIFA started operating on March 21, 2022. Our Mexican domestic passenger traffic is highly dependent upon the operations of the Mexico City International Airport, and we cannot assure you that AIFA’s operations will not adversely affect the operations of the Mexico City International Airport.
In 2019, the Mexican government started construction of a railway known as the Mayan Train (Tren Maya), designed to link Mayan archaeological and tourist sites across five southeastern states — Campeche, Chiapas, Quintana Roo, Tabasco and Yucatan. The project, which connects Palenque with Cancún, had an estimated cost of U.S.$7.4 billion. Although a series of protests and legal challenges delayed its completion, a section of the project started operations on December 16, 2023, and full operations began on December 15, 2024. The remaining infrastructure, including cargo services, is expected to be completed by December 2026. We cannot assure you that the operation of the Mayan Train will not adversely impact passenger traffic at our Mexican airports.
On June 2, 2024, presidential and federal elections were held in Mexico, resulting in Claudia Sheinbaum, the former mayor of Mexico City, being elected as the first female president in Mexico. Ms. Sheinbaum succeeded Andres Manuel López Obrador, ultimately securing the nomination of Sigamos Haciendo Historia, the ruling coalition formed by the political parties Movimiento de Regeneración Nacional, (“Morena”), Partido del Trabajo (“PT”), and the Partido Verde Ecologísta de México for the 2024 Mexican federal election. Ms. Sheinbaum took office on October 1, 2024.
Morena obtained the required two-third majority in the Chamber of Deputies (Cámara de Diputados) and close to a required majority in the Senate, sufficient to pass any reforms proposed by the president (including constitutional reforms). President Sheinbaum is expected to continue the social and economic policies of her predecessor, Mr. López Obrador. This new political configuration has given and is likely to continue to give the Morena coalition substantial authority to implement significant changes to the Mexican Constitution and other laws, policies and regulations, which could potentially affect the Mexican economy and our business.
We cannot predict the impact that political, economic and social conditions will have on the Mexican economy, nor if our operations or the legal framework under which we operate could be affected. See “Item 3. Key Information—Risks related to the Regulation of Our Business— Changes to Mexican laws, regulations and decrees applicable to us could have a material adverse impact on our results of operations.” In addition, we cannot guarantee that political, economic or social developments in Mexico, over which we have no control, will not have an adverse effect on our business, financial condition, and results of our operations.
The Mexican federal government has exercised, and continues to exercise, significant influence over the Mexican economy. Mexican federal governmental actions and policies concerning the economy, state-owned enterprises and state controlled, funded or influenced financial institutions could have a significant impact on private sector entities in general and on us in particular, and on market conditions, prices and returns on Mexican securities. We cannot predict the impact that political developments in Mexico will have on the Mexican economy nor can provide any assurances that these events, over which we have no control, will not have an adverse effect on our business, financial condition, results of operations, cash flows, prospects and/or the market price of our ADSs.
26
The Mexican government could continue to implement significant changes in laws, policies and regulations, which could affect the economic and political situation in Mexico. On February 2, 2023, former president, López Obrador issued a presidential decree pursuant to which all cargo and freight flights departing from the Mexico City International Airport would be relocated to depart from the AIFA airport. On July 7, 2023 the SICT published in the Official Gazette of the Federation that cargo airlines operating at the Mexico City International Airport had to move their operations to another terminal by September 1, 2023. While we do not believe that these legislative reforms will have a negative impact in the short term, we cannot predict how these regulatory changes will affect our business, financial condition, results of operations, cash flows, prospects, and/or the market price of our ADSs.
On January 19, 2024, the SICT amended the concession title to operate AIFA’s airport, granting an “indefinite” concession to the state-owned enterprise operating the airport, to be terminated in the event the government determines that the operation of the airport is no longer of public interest. We cannot assure that such regulatory changes will have a negative impact on our business, financial condition and result of operations.
Differences between the corporate disclosure requirements of Mexico and the United States may not adequately reflect our business and results of operations.
A principal objective of the securities laws of the United States, Mexico, and other countries is to promote full and fair disclosure of all material corporate information, including accounting information. However, there may be different or less publicly available information about issuers of securities in Mexico than is regularly made available by public companies in countries with highly developed capital markets, including the United States.
In addition, accounting standards and disclosure requirements in Mexico differ from those of the United States. In particular, our financial statements are prepared in accordance with the International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”) which differs from United States GAAP in a number of respects. Items on the financial statements of a company prepared in accordance with IFRS may not reflect its financial position or results of operations in the way they would be reflected had such financial statements been prepared in accordance with United States GAAP.
Mexican law and our bylaws restrict the ability of non-Mexican shareholders to invoke the protection of their governments with respect to their rights as shareholders.
As required by Mexican law, our bylaws provide that non-Mexican shareholders shall be considered as Mexicans in respect of their ownership interests in ASUR and shall be deemed to have agreed not to invoke the protection of their governments in certain circumstances. Under this provision, a non-Mexican shareholder is deemed to have agreed not to invoke the protection of his own government by asking such government to interpose a diplomatic claim against the Mexican government with respect to the shareholder’s rights as a shareholder, but is not deemed to have waived any other rights it may have, including any rights under the United States securities laws, with respect to its investment in ASUR. If you invoke such governmental protection in violation of this agreement, your shares could be forfeited to the Mexican government.
It may be difficult to enforce civil liabilities against us or our directors, officers and controlling persons.
ASUR is organized under the laws of Mexico, with its principal place of business (domicilio social) in Mexico City, and most of our directors, officers and controlling persons reside outside the United States. In addition, all or a substantial portion of our assets and their assets are located outside of the United States. As a result, it may be difficult for investors to effect service of process within the United States on such persons or to enforce judgments against them, including in any action based on civil liabilities under the United States federal securities laws. There is doubt as to the enforceability against such persons in Mexico, whether in original actions or in actions to enforce judgments of United States courts, of liabilities based solely on the United States federal securities laws.
27
The protections afforded to minority shareholders in Mexico are different from those in the United States.
Under Mexican law, the protections afforded to minority shareholders are different from those in the United States. In particular, the law concerning fiduciary duties of directors is not as fully developed as in other jurisdictions and there are different procedural requirements for bringing shareholder lawsuits. As a result, in practice it may be more difficult for minority shareholders of ASUR to enforce their rights against us or our directors or controlling shareholders than it would be for shareholders of a company incorporated in another jurisdiction, such as the United States.
Security risks in Mexico could increase, which could adversely affect our operations.
In recent years, Mexico has experienced a period of increased criminal activity and violence, primarily due to organized crime. Increasing violence among criminal organizations, particularly drug traffickers, and clashes between these and Mexican civilian and military personnel, or increases in other types of crime, are a risk to our business and could negatively impact our performance. In addition, perceptions about crime in Mexico and violence related to drug trafficking may also have an adverse effect on our business as they may decrease the international passenger traffic directed to Mexico or the domestic passenger travel using our airports in affected states.
In recent periods, security incidents and government enforcement actions against organized crime groups in Mexico have been followed by episodes of violence, vandalism and travel disruption. For example, in early 2026, incidents were widely reported across the country, particularly in the state of Jalisco, including in Guadalajara and Puerto Vallarta, and may adversely affect traveler perception and demand if sustained or repeated. Any escalation or persistence of violence in regions where we operate could reduce domestic and international passenger traffic, disrupt airline operations, and adversely affect our results of operations, financial condition and prospects.
While the impact of insecurity may vary by region and can be mitigated through internal prevention and control measures, we cannot guarantee how this situation will evolve, whether it will remain localized or spread to other areas of the country, or what potential adverse effects it may have on the national economy and, consequently, on our operations, results, and financial condition.
On December 8, 2021, the U.S. State Department issued a Level 3 travel advisory to reconsider travel to Mexico due to COVID-19, and recommended exercising increased caution in Mexico due to crime and kidnapping, as some areas have increased risk. Historically, the regions in which we operate have not experienced the violence experienced in other parts of Mexico and none of the Mexican states in which we operate were cited as “do not travel to” or “reconsider travel to” zones in the December 8, 2021 travel advisory. However, we cannot guarantee that violence will not increase in, or that the U.S. State Department will not issue travel advisories for, the Mexican states in which we operate. On January 23, 2023, the United States Department of State issued a press release warning U.S. citizens of certain violent outbreaks between Uber drivers and local taxi unions in Quintana Roo, which often resulted in U.S. citizens being injured. Further, on March 13, 2023, the United States Department of State issued a press release advising U.S. citizens to exercise increased caution in certain touristic areas such as Cancun, Playa Del Carmen, and Tulum. Such advisory was repeated both in a travel advisory issued on September 6, 2024 and in a press release issued by the United States Department of on the same date. In its most recent advisory, issued on August 12, 2025, U.S. citizens were urged not to travel to states such as Colima, Guerrero, Michoacán, Sinaloa, Tamaulipas, and Zacatecas. It also recommended postponing non-essential travel to cities, states, and other regions including Baja California, Chiapas, Chihuahua, Guanajuato, Jalisco, Morelos, and Sonora.
Risks Related to Colombia
Our operations in Colombia may be adversely affected by geopolitical tensions between Colombia and the United States.
Since his inauguration as President of the United States on January 20, 2025, Donald Trump has pursued various international and domestic policy objectives by imposing or threatening to impose tariffs on imports from other countries, including Colombia, alongside stricter immigration policies. For a detailed description of the risks associated with the assumption of Donald J. Trump as president of the United States, see “Item 3. Key Information—Risk Factors—Risks Related to Our Operations.”
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On October 24, 2025, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) designated Colombian President Gustavo Petro, his spouse, his son and an alleged close associate, under Executive Order 14059, which imposes asset-blocking sanctions on foreign persons involved in the global illicit drug trade. While we do not envision such designation to have a direct material adverse effect on our business, financial condition, or results of operations in Colombia, growing diplomatic tensions between the Colombian and U.S. administrations may affect the economic environment in Colombia and the United States, and consequently, may contribute to economic uncertainty.
On February 3, 2026, President Gustavo Petro met with President Donald Trump at the White House to ease ongoing diplomatic tensions between Colombia and the United States. The parties expressed willingness to maintain bilateral cooperation, particularly in counternarcotics and regional security; however, no substantive agreements were reached, and material policy differences persisted. Subsequently, in March 2026, U.S. authorities initiated investigations into alleged links between individuals associated with Petro’s political circle and drug trafficking financing. These developments have renewed bilateral tensions and may adversely affect the stability and trajectory of relations between the U.S. and Colombia. Such conditions may adversely affect our business and results of operations. For a detailed description of the risks associated with the relationships between Colombia and the United States, see “Item 3. Key Information—Risk Factors—Risks Related to Our Operations.”
Any restrictions on the import and export of goods between Colombia and the United States could deteriorate trade relations between the two countries. In addition, potential restrictions on travel could significantly affect passenger traffic between Colombia and the United States, leading to a decline in activity at our airports. These developments could have a material adverse effect on our business, financial condition, or results of operations in Colombia.
Colombian government policies may significantly affect the economy, and, as a result, our business and operations in Colombia.
Our business and results of operations at our Colombian airports are dependent on the economic conditions prevailing in Colombia. The Colombian government has historically exercised substantial influence on its economy, and is likely to continue to implement policies that will have an impact on the business and results of operations of entities in the country. Potential changes in laws, public policies and regulations may cause instability and volatility in Colombia, which could have a material adverse impact on our business and results of operations.
The Colombian Peso (“COP”) has appreciated by over 14.8% against the U.S. dollar during the twelve-month period ended December 31, 2025. A depreciation of the COP could affect the Company’s business in the following ways: (i) international passengers and international flights pay tariffs reported in U.S. dollars; while these tariffs are generally collected in COP, any depreciation of the COP has a positive impact on the Company’s results from operations, which are reported in COP; (ii) as the Company has cash balances denominated in U.S. dollars; a depreciation in the Mexican peso would result in higher cash balances when converted to COP, thus causing foreign exchange gains; and (iii) the Company has financial liabilities denominated in U.S. dollars; a depreciation in the COP results in higher debt balances when converted to COP, thus causing foreign exchange losses.
On August 7, 2022, Gustavo Petro, candidate for the left-wing “Pacto Histórico” party, was elected President of Colombia. On August 8, 2022, the Ministry of Finance submitted a tax reform bill to the Colombian Congress proposing several changes to the Colombian tax regime. The tax reform bill was passed as Law 2277 on December 13, 2022, and became effective starting January 1, 2023. This law includes, among others: (i) a new permanent equity tax applicable to Colombian individuals and non-residents, which rates may vary from 0.5% to 1.5% based on the individual’s net equity as of the first day of January of each year, (ii) an increase in the dividend tax rate for local and foreign shareholders (0% to 39% progressive marginal rates for Colombian individuals, and 20% flat withholding rate for non-resident shareholders), (iii) an increase in the long-term capital gains tax rate, from 10% to 15%, (iv) the elimination of specific tax benefits and exemptions, such as the exempt income applicable for entities that are part of the technological and creative sector (“Economía Naranja”), the tax incentive for the development of the Colombian farming sector, and the 27% preferential income tax rate applicable to large infrastructure investments (“Megainversiones”), among others, (v) a 3% tax benefit on the taxpayer’s net income determined pursuant to Section 259-1 f the Colombian Tax Code, in connection with environmental-related, deductions related to employee trainings, expenses incurred in the conservation of cultural property, among others, (vi) a minimum corporate income tax of at least 15% based on effective tax rate (calculated on book profit with certain adjustments), (vii) taxes based on significant economic presence of certain commercial activities (primarily for non-resident persons and entities that provide digital services), and (viii) the elimination of the possibility to use 50% of the Industry and Commerce Tax (i.e., local tax levied on gross revenue derived from the provision of services, or the performance of commercial and industrial activities in Colombian municipalities) as an income tax credit.
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Additionally, the Colombian executive branch has recently introduced a bill to reform the national pension plan (which contemplated, among other things, a pillar system based on age and condition of the affiliated, and changes to pension schemes applicable to women). Furthermore, the Colombian government introduced other bills including reforms to labor laws (which include amendments to the regulation of outsourcing and subcontracting schemes, service contracts, minimum daily working hours, digital work, informal and migrant work, among others), and to healthcare laws, which have not been approved as of the date of this report, and will be discussed during this year’s congress ordinary sessions. As of the date of this annual report, it is unclear how these bills could affect the Colombian economy or our business.
In May 2023 the Colombian Congress approved the National Development Plan which regulates, among other things, territorial planning around watercourses, human safety, access to food, and climate change for the years 2024 through 2026. The National Development Plan has established the need to reform several airports to enhance tourism in certain regions. One of the projects is an extension of José María Córdova Airport in Rionegro. As of the date of this report, it is unclear how the new National Development Plan could affect the Colombian economy or our business. In connection with the foregoing, on March 26, 2026, Airplan amended the concession agreement, introducing a series of changes regarding capacity expansion and service-level improvement works to address unexpected demand. See “Item 4. Information on the Company – Colombian Regulatory Framework – Scope of Colombian Concession and General Obligations.” The scope and timing of any further expansion at José María Córdova Airport beyond the works incorporated under this amendment remain uncertain. Any additional reforms performed under our concession agreement would require our consent.
Furthermore, the Colombian Government introduced a new tax reform bill to the Congress in September 2024. However, the new tax reform bill was rejected in December 2024. The bill proposed several changes, such as: (i) increasing the equity tax rates up to 2%, (ii) reducing the equity tax threshold, (iii) including Colombian entities as taxpayers (but only in respect of their non-productive fixed assets), (iv) increasing long-term capital gains tax rate from 15% to 20%, (v) increasing individuals’ maximum income tax rate from 39% to 41%, (vi) increasing the minimum corporate income tax rate from 15% to 20% and (vi) increasing of national carbon tax.
In 2025, the Colombian Government issued Decree 0175, which declared a state of economic emergency in the Catatumbo region, which temporarily amended certain articles of the Colombian Tax Code, increasing the general stamp tax rate from 0% to 1%. Additionally, the decree created a special tax on the sale of oil and extended VAT to online gambling.
Also in 2025, the Colombian Government issued Decree 1474 which enacted temporary tax measures aimed at addressing the state of economic emergency declared by the Government in December of that year. Decree 1474 created several temporary measures, such as: (i) an increase in the maximum wealth taxrate to 5%, (ii) a 15% income tax surcharge for financial institutions, (iii) non-deductibility of royalties owed from the exploitation of non-renewable natural resources, and (iv) certain tax amnesties, among other things. Notwithstanding the above, Decree 1474 was suspended by the Constitutional Court while the Company was conducting its constitutional assessment. On February 11, 2026, the federal government issued Decree 150 of 2026, declaring a new state of economic, social and ecological emergency. Under this decree, a temporary wealth tax for the 2026 fiscal year applicable to Colombian legal entities and assimilated entities with a net equity of over US$2,600,000 as of March 1, 2026 was introduced. The tax applies at a general rate of 0.5% (increased to 1.6% rate for certain financial and extractive industries).
On March 12, 2026, the National Government issued Decree 240 of 2026 which introduced: (i) consumption tax to online gambling, (ii) tax amnesties, transitory reduction to penalties and delay interests, and (iii) an expansion of the wealth tax regime to include permanent establishments and Colombian branches of foreign entities.
We cannot predict whether the Colombian Government will present a new tax reform bill during fiscal year 2026.
If the perception of improved overall stability in Colombia deteriorates or if foreign direct investment declines, the Colombian economy may face a downturn, which could impact international and domestic traffic at our Colombian airports, and negatively affect our results of operations.
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Colombia has experienced several periods of violence and political instability, which could affect the economy and our operations.
Colombia has experienced several periods of criminal violence over the past four decades, primarily due to the activities of guerilla, paramilitary groups and drug cartels. In remote regions of the country, where governmental presence is minimal, these groups have exerted influence over the local population and funded their activities by protecting and rendering services to drug traffickers. In response, the Colombian government has implemented security measures and have strengthened its military and police forces, including the creation of specialized units. Despite these efforts, drug-related crime and guerrilla and paramilitary activity continue to exist in Colombia. Any possible escalation in the violence associated with these activities may have a negative impact on the Colombian economy in the future.
In the context of any political instability, allegations have been made against members of the Colombian government concerning possible ties with paramilitary groups. These allegations may undermine the Colombian government’s credibility, which could in turn negatively impact the Colombian economy and tourism and our operations there in the future. In November 2016, the Colombian government signed a revised peace agreement with the FARC guerillas that sought their demobilization and the end of the decades-long armed conflict. That same month, the revised peace agreement was ratified by both houses of Colombian Congress and the Colombian government formally entered into the peace agreement with FARC without submitting the agreement to the voters for their approval. On January 18, 2019, President Ivan Duque announced the end of negotiations for a peace agreement with the ELN, the second-largest guerilla group in the country. This decision was the result of a terrorist attack on a police station based in Bogotá, perpetrated by the ELN. The Colombian government has had military confrontations with the ELN and with dissident groups that a peace agreement had been signed with. Conflicts between guerrilla and paramilitary fighters for control of the territory vacated by former groups who reintegrated into civil society has caused outbreaks of violence in the country, which have also been met with responses by the Colombian government. In addition, some ex-guerrilla members continue to carry out illegal activities, including micro-drug trafficking and robbery, leading to the establishment of criminal bands in the Antioquia, Cauca and Valle del Cauca regions.
On November 4, 2022, the Colombian Congress approved Law 418 and Law 2272 establishing the “Paz Total” program, pursuant to which the government will establish political dialogues with armed groups in different regions of the country, in furtherance of achieving peace.
On December 31, 2022, President Petro announced a bilateral ceasefire, starting on January 1, 2023 until June 30, 2023, which would open a round of dialogue between the government and ELN, Segunda Marquetalia, Estado Mayor Central, Autodefensas Gaitanistas de Colombia (AGC) and the Sierra Nevada armed group. The second round of the dialogue between the Colombian Government and the ELN ended in March 2023, which was followed by two subsequent rounds in June and August, 2023. Despite the referred negotiation efforts, parties have failed to achieve a full ceasefire and hostilities remained during 2023 and continue as of the date of this report. In February 2025, peace negotiations between the Colombian Government and the ELN faced a significant setback following a series of violent attacks in the Catatumbo region. These escalations included attacks on civilians and social leaders, as well as kidnapping for financial purposes leading to the suspension of the ceasefire and peace talks that have been initiated by President Petro. The government suspended the talks and resumed military actions, emphasizing the ELN’s lack of commitment to peace.
On February 15, 2026, Petro announced his acceptance of a proposal from the ELN to create an independent commission to investigate the rebel group’s alleged involvement in drug trafficking. The proposed body would function as an independent, scientifically grounded entity, with its findings potentially conveyed to the United Nations. As of the date of this report, there is no public confirmation that the commission has been formally established, and peace negotiations between the Colombian government and the ELN remain uncertain and subject to periodic disruptions.
Furthermore, in March 2023, President Gustavo Petro announced the commencement of a peace process with the FARC dissidents who did not sign the peace agreement in 2016. In March 2024, political dialogues with the FARC dissidents faced a significant setback following an armed attack against an indigenous community in the Cauca department. In response to this attack, President Petro suspended the ceasefire between the Colombian government and the FARC dissidents. The government resumed military operations against this group, emphasizing the need for concrete peace actions moving forward.
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Overall, during 2025, peace negotiations between the Colombian government and several armed groups continued amid periodic crises, deteriorating public security conditions, and the consolidation of armed actors in various regions of the country in the lead-up to an electoral cycle. The surge in violence throughout 2025 contributed to growing public skepticism regarding the peace process pursued under Petro’s “Total Peace” policy. The government has maintained its commitment to sustaining negotiations and dialogue mechanisms with multiple armed groups, despite the absence of fully defined legal frameworks governing such processes. As part of these efforts, the government has announced and, in some cases formally established, Temporary Location Zones (Zonas de Ubicación Temporal, or ZUT)—designated areas where members of certain armed groups may temporarily concentrate while participating in negotiations or dialogue processes with the State.
In December 2025, the government formally established three ZUT as part of a dialogue process with the Clan del Golfo (Autodefensas Gaitanistas de Colombia – AGC), located in rural areas of Unguía and Belén de Bajirá (Chocó) and Tierralta (Córdoba), with an authorized duration through December 31, 2026, two with the “Coordinadora Nacional Ejército Bolivariano”, one with “Comuneros del Sur” and one with the “Frente 33 de las disidencias del Estado Mayor de Bloques”. Despite these initiatives, effective incentives for armed groups to suspend their criminal activities remain limited, while their operational capacities have continued to expand in terms of personnel, financial resources, and weaponry.
In addition, Colombia has recently experienced substantial migration from Venezuela, leading to strained commercial and diplomatic relations. While air transport between Colombia and Venezuela had slowed in part due to political and economic instability in Venezuela (including flight suspensions in May 2025 and November 2025, when Venezuelan authorities revoked operating permits for several airlines, including Avianca and LATAM), a shift occurred on January 2026, when a U.S. military operation culminated in the capture of Nicolás Maduro, and Vice President Delcy Rodrígues assumed the role of interim president. As a consequence, several airlines have resumed or commenced operating commercial flights between both countries. Avianca reactivated its Bogotá–Caracas route on February 12, 2026; LATAM resumed the same route on February 23, 2026; and Wingo also reactivated its Medellín–Caracas route on March 1, 2026.
With respect to the regulatory environment, in June 2024, the pension system reform bill introduced by President Petro was approved by the Colombian Congress. The new pension system has four pillars: the “solidarity pillar” provides a monthly allowance to individuals over 80 years old without access to a pension; the “semi-contribution pillar” provides a monthly allowance to individuals who have contributed for at least 300 up to 900 weeks to the various pension funds, as applicable; the “contribution pillar” provides allowances to men over 62 years old who contributed for at least 1,300 weeks and women over 57 years old who contributed for at least 1,000 weeks; and the “complementary savings pillar” provides an additional monthly allowance to individuals in proportion to their overall contributions. The Constitutional Court is currently reviewing the pension system reform bill to determine whether there were procedural flaws in its approval. The decision is set to be finalized in 2026.
On March 6, 2025, the Chamber of Representatives of the Colombian Congress approved President Petro’s healthcare reform bill. Anticipating a possible rejection during the legislative process, the government announced its intention to hold a public consultation, a referendum through which Colombian citizens vote directly on matters of public interest, to seek approval for the reform. The Senate rejected this initiative in May 2025. The President then attempted to invoke the public consultation by decree. This was challenged before the Council of State, Colombia’s highest administrative court. The Court ruled that, under the Political Constitution and statutory law, prior Senate authorization is required for such a process to be valid.
Our Colombian operations could be adversely impacted by rapidly changing economic, political and social conditions in Colombia and by the Colombian government’s response to such economic and social conditions. Additionally, any changes in the ruling government, regulations or policies relating to aeronautical services or investment, or shifts in political attitudes in Colombia are beyond our control.
As of February 2026, Colombia’s major labor reform, which was formally passed by both chambers of Congress through Law 2466 and signed into law by the President in June 2025, is now in force. Many of its provisions are already being implemented, including changes to night work definitions, increased Sunday and holiday surcharges, and broader labor protections. The government continues to issue regulatory decrees to support the reform’s rollout, and the Ministry of Labor is actively working to help businesses comply as the reform is phased in over time.
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In its February 2026 monetary policy meeting, the Central Bank’s Board of Directors voted by majority to raise the benchmark interest rate by 100 basis points, from 9.25% to 10.25%, a significant tightening of monetary policy. This decision became effective on February 2, 2026. The decision was driven by persistent inflation, rising core inflation, higher inflation expectations, risks from fiscal imbalances and strong domestic demand and a 23% increase in the federal monthly minimum wage from 2025 to 2026. The move signals the Board’s commitment to bringing inflation back to its 3% target. The vote was not unanimous: four members supported the increase, two favored a rate cut, and one preferred no change.
On February 13, 2026, the Council of State provisionally suspended the government’s decree establishing a 23% increase in the monthly minimum wage for 2026 as a precautionary measure while the court reviews the decree’s legality under applicable statutory and constitutional standards. The court ordered the Executive Branch to issue a new, technically and legally justified temporary decree within eight days, setting a minimum wage figure consistent with the criteria established under the law.
In response, the government issued a temporary decree (Decree 0159 of 2026) establishing a provisional minimum wage while the judicial review continues. The transitional decree maintains the same nominal minimum wage, a 23% increase compared with 2025, until the Council of State issues a final ruling on the legality of the original decree. The suspension does not constitute a final judgment on the legality of the wage increase. Amounts already paid under the previously established wage level remain valid, and the provisional wage established by the new decree will remain in effect until the court renders a final decision.
Risks Related to Our ADSs
You may not be entitled to participate in future preemptive rights offerings.
Under Mexican law, if we issue new shares for cash as part of a capital increase, we generally must grant our shareholders the right to purchase a sufficient number of shares to maintain their existing ownership percentage in ASUR. Rights to purchase shares in these circumstances are known as preemptive rights. We may not legally be permitted to allow holders of ADSs in the United States to exercise any preemptive rights in any future capital increase unless we file a registration statement with the U.S. Securities and Exchange Commission, or SEC, with respect to that future issuance of shares, or the offering qualifies for an exemption from the registration requirements of the Securities Act of 1933, as amended.
At the time of any future capital increase, we will evaluate the costs and potential liabilities associated with filing a registration statement with the SEC and any other factors that we consider important to determine whether we will file such a registration statement.
We cannot assure you that we will file a registration statement with the SEC to allow holders of ADSs or shares in the United States to participate in a preemptive right offering. In addition, under current Mexican law, sales by the depository of preemptive rights and distribution of the proceeds from such sales to you, the ADS holders, is not possible. As a result, your equity interest in ASUR may be diluted proportionately.
Holders of ADSs are not entitled to attend shareholders’ meetings, and they may only vote through the depositary.
Under Mexican law, a shareholder is required to deposit its shares with the Secretary of the Company, the S.D. Indeval Institución para el Depósito de Valores, S.A. de C.V. (“Indeval”), a Mexican or foreign credit institution or a brokerage house in order to attend a shareholder’ meeting. A holder of ADSs will not be able to meet this requirement, and accordingly is not entitled to attend shareholders’ meetings. A holder of ADSs is entitled to instruct the depositary as to how to vote the shares represented by ADSs, in accordance with the procedures provided for in the deposit agreement and in accordance with Mexican law, but a holder of ADSs will not be able to vote its shares directly at a shareholders’ meeting or to appoint a proxy to do so.
Future sales of shares by us and our stockholders may depress the price of our Series B shares and ADSs.
On August 17, 2010, JMEX B.V., which held 16.1% of our capital stock, disposed of 100.0% of its holdings or 47,974,228 Series B shares, in an underwritten public offering at a price of U.S.$4.48 per Series B share. On January 4, 2012, Fernando Chico Pardo consummated the sale of 49.0% of ITA and 37,746,290 of his Series B shares to Grupo ADO for an aggregate purchase price of U.S.$196.6 million.
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Future sales of substantial amounts of our common stock or the perception that such future sales may occur, may depress the price of our ADSs and Series B shares. Although we and JMEX B.V. were subject to a lock-up in connection with the August 2010 sale, our other stockholders, directors and officers were not subject to any lock-up agreements, and as a result, they were able to freely transfer their Series B shares immediately following the offering. We, our stockholders, directors and officers may not be subject to lock-up agreements in future offerings of our common stock. Any such sale may lead to a decline in the price of our ADSs and Series B shares. We cannot assure you that the price of our ADSs and Series B shares would recover from any such decline in value.
We may be classified as a passive foreign investment company for U.S. federal income tax purposes, which could subject U.S. investors in shares of our common stock or ADSs to adverse tax consequences, which may be significant.
We will be classified as a passive foreign investment company (a “PFIC”) in any taxable year in which, after taking into account our income and gross assets (and the income and assets of our subsidiaries pursuant to applicable “look-through rules”) either (i) 75% or more of our gross income for the taxable year consists of certain types of “passive income” or (ii) 50% or more of the average quarterly value of our assets is attributable to “passive assets” (assets that produce or are held for the production of passive income). We believe that we were not a PFIC for U.S. federal income tax purposes in 2024 or 2025 and do not expect to be a PFIC in the current year or the reasonably foreseeable future. PFIC status is a factual determination made annually after the close of each taxable year on the basis of the composition of our income and the value of our active versus passive assets. Because our belief is based in part on the expected market value of our equity, a decrease in the trading price of our common stock and ADSs may result in our becoming a PFIC.
If we were to be or become classified as a PFIC, a U.S. holder, as defined in “Item 10. Additional Information—Taxation—Passive Foreign Investment Company Status,” that does not make a “mark-to-market” election may incur significantly increased U.S. income tax on gain at ordinary income tax rates recognized on the sale or other disposition of shares of our common stock or ADSs and on the receipt of distributions on the shares of our common stock or ADSs to the extent such distribution is treated as an “excess distribution” under the U.S. federal income tax rules. We do not intend to provide holders with the information necessary to make a “QEF election” (as described in “Item 10. Additional Information—Taxation—Passive Foreign Investment Company Status”). Thus, a U.S. holder seeking to mitigate the potential adverse effects of the PFIC rules should consider making a mark-to-market election. Additionally, if we were to be or become classified as a PFIC, a U.S. holder of shares of our common stock or ADSs will be subject to additional U.S. tax form filing requirements, and the statute of limitations for collections may be suspended if the U.S. holder does not file the appropriate form. See “Item 10. Additional Information— Taxation— Passive Foreign Investment Company Status”.
FORWARD LOOKING STATEMENTS
This Form 20-F contains forward-looking statements. We may from time to time make forward-looking statements in our periodic reports to the SEC on Forms 20-F and 6-K, in our annual report to shareholders, in offering circulars and prospectuses, in press releases and other written materials and in oral statements made by our officers, directors or employees to analysts, institutional investors, representatives of the media and others. Examples of such forward-looking statements include:
| ● | projections of operating revenues, operating income, net income (loss), net income (loss) per share, capital expenditures, dividends, capital structure or other financial items or ratios, |
| ● | statements of our plans, objectives or goals, |
| ● | statements about our future economic performance or that of Mexico or other countries in which we operate, and |
| ● | statements of assumptions underlying such statements. |
Words such as “believe,” “anticipate,” “plan,” “expect,” “intend,” “target,” “estimate,” “project,” “predict,” “forecast,” “guideline,” “should” and similar expressions are intended to identify forward-looking statements but are not the exclusive means of identifying such statements.
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Forward-looking statements involve inherent risks and uncertainties. We caution you that a number of important factors could cause actual results to differ materially from the plans, objectives, expectations, estimates and intentions expressed in such forward-looking statements. These factors, some of which are discussed above under “Risk Factors,” include material changes in the performance or terms of our Mexican, Colombian and Puerto Rican concessions, developments in legal proceedings, economic and political conditions and government policies in Mexico, Colombia, Puerto Rico, Dominican Republic or elsewhere, inflation rates, exchange rates, regulatory developments, customer demand and competition. We caution you that the foregoing list of factors is not exclusive and that other risks and uncertainties may cause actual results to differ materially from those in forward-looking statements.
Forward-looking statements speak only as of the date they are made, and we do not undertake any obligation to update them in light of new information or future developments.
Item 4.Information on the Company
HISTORY AND DEVELOPMENT OF THE COMPANY
Grupo Aeroportuario del Sureste, S.A.B. de C.V., or ASUR, is a corporation (sociedad anónima bursátil de capital variable) organized under the laws of Mexico. We were incorporated in 1998 as part of the Mexican government’s program for the opening of Mexico’s airports to private-sector investment. The duration of our corporate existence is indefinite. We are a holding company and conduct all of our operations through our subsidiaries. The terms “ASUR,” “we” and “our” in this annual report refer both to Grupo Aeroportuario del Sureste, S.A.B. de C.V. as well as Grupo Aeroportuario del Sureste, S.A.B. de C.V. together with its subsidiaries. Our registered office is located at Bosque de Alisos No. 47ª-4th Floor, Bosques de las Lomas, 05120 México, D.F., México, telephone (5255) 5284 0408.
Investment by ITA
As part of the opening of Mexico’s airports to investment, in 1998, the Mexican government sold a 15.0% equity interest in us in the form of 45,000,000 Series BB shares to ITA pursuant to a public bidding process.
ITA paid the Mexican government a total of Ps.1,165.1 million (nominal pesos, excluding interest) (U.S.$120.0 million based on the exchange rates in effect on the dates of payment) in exchange for:
| ● | 45,000,000 Series BB shares representing 15.0% of our outstanding capital stock (as of the date hereof, Series BB shares represent 7.65% of our outstanding capital stock following the conversion described below), |
| ● | three options to subscribe for newly issued Series B shares, all of which have expired unexercised, and |
| ● | the right and obligation to enter into various agreements with us and the Mexican government, including a participation agreement, a technical assistance agreement and a shareholders’ agreement under terms established during the public bidding process. These agreements are described in greater detail under “Item 7. Major Shareholders and Related Party Transactions—Related Party Transactions.” |
Under the technical assistance agreement, ITA provides management and consulting services and transfers industry “know-how” and technology to ASUR in exchange for a technical assistance fee. This agreement is more fully described in “Item 7. Major Shareholders and Related Party Transactions—Related Party Transactions.” The agreement provides us a perpetual and exclusive license in Mexico to use all technical assistance and “know-how” transferred to us by ITA or its stockholders during the term of the agreement. The agreement had an initial 15-year term which expired in 2013, and is automatically renewed for successive five-year terms, unless one party provides the other a notice of termination within a specified period prior to a scheduled expiration date. The agreement was renewed on June 29, 2018. Although Copenhagen Airports A/S (“Copenhagen Airports”) sold its stake in ITA to Mr. Fernando Chico Pardo in October 2010, this technical assistance agreement continues in force. ITA provides us assistance in various areas, including strategic planning, financial analysis and control, development of our commercial activities, preparation of marketing studies focusing on increasing passenger traffic volume at our airports, political and regulatory issues, assistance with the preparation of the master development plans that we are required to submit to the Ministry of Infrastructure, Communications and Transportation with respect to each of our airports, construction programming, exploring and analyzing new business opportunities, and the improvement of our airport operations.
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The agreement was amended in 2012 to provide for quarterly payments of the fee. Until December 31, 2024, the technical assistance fee was equal to the greater of U.S.$2.0 million, adjusted for United States inflation, or 5.0% of our annual consolidated earnings before comprehensive financing cost, income taxes and depreciation and amortization (determined in accordance with financial reporting standards applicable in Mexico and calculated prior to deducting the technical assistance fee under this agreement). Effective as of January 1, 2024, the 5.0% rate was reduced to 2.5%. In 2025, the fixed amount was U.S.$ 3.9 million. We believe that this structure creates an incentive for ITA to increase our annual consolidated earnings before net comprehensive financing cost, income and asset taxes and depreciation and amortization. ITA is also entitled to reimbursement for the out-of-pocket expenses it incurs in its provision of services under the agreement. In 2023, 2024 and 2025, the technical assistance costs were Ps. 715.5 million, Ps. 400.8 million and Ps. 400.9 million, respectively, greater than the fixed costs of Ps. 62.4 million, Ps. 79.3 million and Ps. 70.3 million, respectively, for the same periods.
The technical assistance agreement allows ITA, its stockholders and their affiliates to render additional services to ASUR only if the Acquisitions and Contracts Committee of our Board of Directors determines that these related persons have submitted the most favorable bid in a public bidding process involving at least three unrelated parties. For a description of this committee, see “Item 6. Directors, Senior Management and Employees—Committees.”
Under our bylaws and the technical assistance agreement, ITA has the right to elect two members of our Board of Directors (which currently consists of eleven members) and their alternates, and to present the Board of Directors the name or names of the candidates for appointment as our chief executive officer, to remove our chief executive officer and to appoint and remove half of our executive officers. As the holder of the Series BB shares, ITA’s consent is also required to approve certain corporate matters so long as ITA’s Series BB shares represent at least 7.65% of our capital stock. In addition, our bylaws and the technical assistance agreement contain certain provisions designed to avoid conflicts of interest between ASUR and ITA. The rights of ITA in our management are explained in “Item 6. Directors, Senior Management and Employees—Committees.”
The remaining 85.0% of our outstanding capital stock, which at that time (prior to the conversion in June 2007 by ITA of 22,050,000 Series BB shares into 22,050,000 Series B shares) consisted of 255,000,000 Series B shares, was sold by the Mexican government to a Mexican trust established by Banco Nacional de Comercio Exterior, S.N.C (“Bancomext”). This trust subsequently sold the shares it held in us to the public. To our knowledge, the Mexican government no longer holds any of our shares.
ITA was restricted from transferring any of its remaining Series BB shares until December 18, 2008. From December 18, 2008 until December 17, 2013, ITA could sell in any year up to 20.0% of its remaining ownership interest in us represented by Series BB shares. These selling restrictions ended when the participation agreement expired on December 17, 2013. Our bylaws provide that Series BB shares must be converted into Series B shares prior to transfer. For a more detailed discussion of ITA’s rights to transfer its stock, see “Item 10. Additional Information—Registration and Transfer.”
As required under the participation agreement entered into in connection with the Mexican government’s sale of the Series BB shares to ITA, ITA transferred its Series BB shares to a trust, the trustee of which is Bancomext. Under the terms of the participation agreement and the trust agreement, ITA’s majority shareholder, currently Fernando Chico Pardo, was required to, directly or indirectly, maintain an ownership interest in ITA of a minimum of 51.0% unless otherwise approved by the Ministry of Infrastructure, Communications and Transportation. To the extent that Mr. Fernando Chico Pardo acquired shares of ITA in excess of a 51.0% interest, this additional interest could be sold without restriction. This ownership requirement expired on December 18, 2013. See “Item 7. Major Shareholders and Related Party Transactions—Major Shareholders—ITA Trust” for a further description of these provisions. If ITA or its stockholders’ default on any obligation contained in the trust agreement, or if ITA defaults on any obligation contained in the technical assistance agreement, after specified notice and cure provisions, the trust agreement provides that the trustee may sell 5.0% of the shares held in the trust and pay the proceeds of such sale to ASUR as liquidated damages.
Pursuant to the terms of the trust, ITA may direct the trustee to vote the Series BB shares, currently representing 7.65% of our capital stock, regarding all matters other than capital reductions, payment of dividends, amortization of shares and similar distributions to our shareholders, which are voted by the trustee in accordance with the vote of the majority of Series B shares. The trust does not affect the veto and other special rights granted to the holders of Series BB shares described in “Item 10. Additional Information.”
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Currently, Fernando Chico Pardo, our Chairman, directly holds 50.0% of ITA’s shares. The other 50.0% is held by Inversiones Kierke, an entity owned and controlled by Grupo ADO. Mr. Fernando Chico Pardo became a stockholder in ITA in April 2004 when he acquired the 24.5% ownership stake of the French group Vinci, S.A. in ITA and a 13.5% ownership stake of the Spanish group Ferrovial Aeropuertos, S.A. in ITA. At the same time, Copenhagen Airports acquired Ferrovial Aeropuertos, S.A.’s 11.0% ownership interest in ITA, thereby increasing its participation in ITA from 25.5% to 36.5%. Mr. Fernando Chico Pardo acquired an additional 25.5% ownership stake in ITA through the exercise of his right of first refusal following the auction of such shares by NAFIN, a Mexican national credit institution and development bank controlled by the Mexican government. On April 29, 2005, Copenhagen Airports increased its participation in ITA from 36.5% to 49.0% through the purchase of shares from Mr. Fernando Chico Pardo.
In connection with the tender offers and other transactions undertaken by Mr. Fernando Chico Pardo in June 2007, ITA converted 22,050,000 Series BB shares representing 7.35% of our total outstanding capital stock into Series B shares and transferred such shares to Agrupación Aeroportuaria Internacional, S.A. de C.V. by means of a spin-off. As a result of this transaction, ITA currently holds 22,950,000 Series BB shares representing 7.65% of our total outstanding capital stock. See “Item 7. Major Shareholders and Related Party Transactions—Major Shareholders—Capital Stock Structure.”
On October 13, 2010, Copenhagen Airports consummated the sale of its 49.0% stake in ITA to Mr. Fernando Chico Pardo. As a result of this transaction, Mr. Fernando Chico Pardo became the direct or indirect owner of 100% of the shares of ITA. On January 4, 2012, Fernando Chico Pardo consummated the sale of an entity that owns and controls 49.0% of the shares of ITA, Corporativo Galajafe, S.A. de C.V. (“Corporativo Galajafe”) (formerly Remer Soluciones), to Grupo ADO. On November 11, 2013, Corporativo Galajafe merged into Remer Soluciones, the total capital stock of which is 99% owned by Grupo ADO. On April 27, 2015, Remer Soluciones exercised its option to acquire an additional 1.0% interest in the outstanding shares of ITA for a purchase price of U.S.$4.6 million. On June 4, 2018, Remer Soluciones merged into Consorcio SAFIJ, S.A. de C.V. (“Consorcio SAFIJ”) the total capital stock of which was 99% owned by Grupo ADO. Then, on August 7, 2018, Consorcio SAFIJ merged into Compañía Inmobiliaria y de Inversiones del Noroeste, S.A. de C.V. (“Noroeste”) the total capital stock of which was 99% owned by Grupo ADO. On October 15, 2018, Noroeste merged into Inversiones Kierke the total capital stock of which is 99% owned by Grupo ADO. Finally, on December 3, 2018, Servicios de Estrategia Patrimonial, S.A. de C.V. and Agrupación Aeroportuaria Internacional III, S.A. de C.V. merged into CHPAF, the total capital stock of which is 99% owned by Mr. Fernando Chico Pardo. In light of the foregoing, Inversiones Kierke and Fernando Chico Pardo, through CHPAF, each own 50.0% of ITA. See “Item 7. Major Shareholders and Related Party Transactions—Major Shareholders—ITA Trust.”
Mr. Fernando Chico Pardo is the founder and President of Promecap, S.C. since 1997. He was appointed by ITA as a member of our Board of Directors and has been Chairman of the Board since April 28, 2005. He has also served as a board member of, among others, Grupo Financiero Inbursa, Condumex, Grupo Carso, Sanborns Hermanos, Sears Roebuck de México, Grupo Posadas de México and Grupo Saltillo.
Investment in LMM Airport
On July 11, 2012, Aerostar, a joint venture between Aeropuerto de Cancún and Oaktree Capital, submitted a successful bid for a concession to operate the LMM Airport. On February 27, 2013, the transaction was completed and Aerostar began operating the LMM Airport. On May 26, 2017, we acquired an additional 10% membership interest in Aerostar, pursuant to a Membership Interest Purchase Agreement, giving us a majority stake in the joint venture. In addition, Oaktree Capital sold its remaining 40.0% interest in Aerostar to PSP Investments, through its wholly-owned subsidiary AviAlliance, pursuant to a separate Membership Interest Purchase Agreement. Aeropuerto de Cancún owns 60.0% of Aerostar’s outstanding membership interests, which it has pledged on a non-recourse basis to secure up to U.S.$410.0 million of indebtedness incurred by Aerostar to pay the upfront leasehold fee, fund capital expenditures and for working capital purposes. As member of Aerostar, Aeropuerto de Cancún is entitled to distributions. However, pursuant to the terms of Aerostar’s debt, distributions are permitted only when Aerostar is in compliance with certain conditions. On October 10, 2025, Aerostar paid dividends to Aeropuerto de Cancún for an amount equal to Ps. 321.6 million, and returned capital contributions for an amount equal to Ps. 228.5 million.
Additionally, Aeropuerto de Cancún made a U.S.$100.0 million subordinated shareholder loan to Aerostar on February 22, 2013 to partially fund the cost of acquiring the concession to operate the LMM Airport and it is entitled to cash interest payments on this loan whenever certain conditions are met, including that dividends are permitted to be paid. Cash interest on the shareholder loan is paid in preference to any dividends that may be payable. When cash interest payments are not permitted, interest on this loan is capitalized. In April 2021, the remaining balance of principal amount and interest on this loan was paid.
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Acquisition of Colombian Airports
In the spring of 2017, we, through Aeropuerto de Cancún, entered into agreements to acquire a controlling interest in Airplan and Oriente. In October 2017, we received the necessary approvals from the Colombian regulatory authorities to conclude the acquisition of a 92.42% stake in Airplan. Airplan has concessions to operate the following airports in Colombia: the Enrique Olaya Herrera Airport in Medellín, the José María Córdova International Airport in Rionegro, the Los Garzones Airport in Montería, the Antonio Roldán Betancourt Airport in Carepa, the El Caraño Airport in Quibdó and the Las Brujas Airport in Corozal. On May 25, 2018, we increased our ownership stake in Airplan to 100% by acquiring an additional 7.58% of Airplan’s capital stock. We terminated our agreement to purchase Oriente in 2018.
We purchased an initial 92.42% interest in Airplan for approximately U.S.$201.6 million, subject to pricing adjustments. Financing for that acquisition has since been refinanced through a series of loans as described below.
We obtained loans through Aeropuerto de Cancún with BBVA and Banco Santander for Ps. 2,000.0 million each. The Company guaranteed Aeropuerto de Cancún’s obligations under these loans. While these loans were outstanding, we and our subsidiaries were subject to certain restrictions, including a prohibition on creating liens on our property, making fundamental changes to our corporate structure, or selling assets exceeding 10.0% of our consolidated total assets. We were also required to maintain a consolidated leverage ratio of no more than 3.50:1.00 and a consolidated interest coverage ratio of at least 3.00:1.00 as of the last day of each fiscal quarter. As of December 31, 2023, 2024, and 2025, our consolidated leverage ratio under this agreement was 1.40:0.70 in each period. Failure to comply with these covenants would have restricted our ability to pay dividends.
The BBVA loan was repaid in October 2021 and replaced with a seven-year loan of Ps. 2,000.0 million maturing in October 2028, at a TIIE rate plus an applicable margin. In June 2024, this loan was amended to extend the maturity date to July 11, 2029, with a 28-day TIIE rate plus a margin of 1.35 points. During 2023, we repaid Ps. 150.0 million of this loan in three equal installments.
The Santander loan was repaid in September 2021 and replaced with a three-year loan of Ps. 2,650.0 million at a 28-day TIIE rate plus 150 basis points. In November 2022, we prepaid Ps. 650.0 million, reducing the balance to Ps. 2,000.0 million. During 2023, we repaid Ps. 1,325.0 million in two equal installments, leaving a balance of Ps. 675.0 million. On March 26, 2024, the Company amended its debt with Santander to extend the maturity date through September 26, 2025, the date on which the loan was repaid in full. On September 26, 2025, the Company entered into a simple revolving credit line agreement with Banco Santander in the amount of Ps. 675.0 million, with principal repayment due at maturity on September 26, 2027, subject to a one-day TIIEF rate plus 150 basis points.
Acquisition of URW Airports, LLC
On July 30, 2025, our subsidiary ASUR US Commercial Airports, LLC, entered into a purchase agreement with Unibail-Rodamco-Westfield’s wholly-owned subsidiary Westfield Development, Inc. to acquire all of the issued and outstanding equity interest of URW Airports, LLC for an enterprise value of US$295 million. The acquired business manages select commercial programs at several U.S. airports, including Terminals 1, 2, 3, 6, Tom Bradley International Terminal and Tom Bradley International Terminal West at LAX, Terminal 5 at ORD, and Terminal 8 and New Terminal One at JFK. The transaction closed on December 11, 2025. We funded the transaction with cash on hand and a secured financing from JPMorgan Chase Bank, N.A. to maintain liquidity. See “Business Overview—U.S. Mainland Airports” for additional description of the acquired businesses.
Acquisition of Companhia de Participações em Concessões (CPC Aeroportos)
On November 18, 2025, Aeropuerto de Cancún entered into a purchase agreement with Motiva Infraestrutura de Mobilidade S.A. to acquire up to 100% of the shares representing the capital stock of Companhia de Participações em Concessões (CPC Aeroportos), for approximately US$936 million. CPC Aeroportos is an operator of 20 airports in Latin America, including 17 in Brazil, one in Costa Rica, one in Ecuador and one in Curaçao, and is a wholly-owned subsidiary of Motiva de Infraestructura de Mobilidade, S.A. This transaction is expected to expand our international network, increase passenger traffic, and increase its exposure to other regions by adding four new markets in Latin America and the Caribbean, including Brazil, currently the largest aviation market in Latin America in terms of passenger traffic. The closing of the transaction, which is expected to occur during the second quarter of 2026, is subject to customary conditions precedent, including various regulatory approvals related to airport infrastructure and economic competition in Brazil. We expect to secure financing from JPMorgan Chase Bank, N.A. to fund the transaction, in addition to cash on hand.
38
Master Development Programs in Mexico
Under the terms of our Mexican concessions, each of our subsidiary concession holders is required to submit an updated master development plan for approval by the Ministry of Infrastructure, Communications and Transportation every five years. Each master development plan covers a 15-year period and includes investment commitments for the regulated part of our business (including certain capital expenditures and improvements) for the succeeding five-year period and investment projections for the regulated part of our business (including certain capital expenditures and improvements) for the remaining 10 years (indicative investments). Once approved by the Ministry of Infrastructure, Communications and Transportation, these commitments become binding obligations under the terms of our Mexican concessions. Committed investments are minimum requirements, and our capital expenditures may exceed our investment commitments in any period. On December 11, 2023, the Ministry of Infrastructure, Communications and Transportation approved each of our current updated master development plans. These plans came into effect from January 1, 2024 to December 31, 2028.
The following table sets forth our committed investments for the regulated part of our business for each Mexican airport pursuant to the terms of our current master development plans for the periods presented. Even though we have committed to invest the amounts in the table, those amounts could be lower or higher depending on the cost of each project.
Committed Investments
|
|
Committed Investments |
|
||||||||||
|
|
Year ended December 31, |
|
||||||||||
Airport |
|
2024 |
|
2025 |
|
2026 |
|
2027 |
|
2028 |
|
Totals |
|
|
|
(millions of constant Mexican pesos as of December 31, 2025)(1) |
|
||||||||||
Cancún |
|
2,928.0 |
|
5,013.5 |
|
6,136.4 |
|
4,308.3 |
|
5,578.0 |
|
23,964.2 |
|
Cozumel |
|
136.0 |
|
371.8 |
|
187.7 |
|
33.1 |
|
62.5 |
|
791.1 |
|
Huatulco |
|
113.4 |
|
225.1 |
|
95.6 |
|
133.9 |
|
341.8 |
|
909.8 |
|
Mérida |
|
234.4 |
|
202.5 |
|
167.0 |
|
591.5 |
|
925.0 |
|
2,120.4 |
|
Minatitlán |
|
86.0 |
|
83.0 |
|
44.4 |
|
16.9 |
|
27.6 |
|
257.9 |
|
Oaxaca |
|
213.8 |
|
607.4 |
|
865.6 |
|
480.7 |
|
198.7 |
|
2,366.2 |
|
Tapachula |
|
40.7 |
|
105.4 |
|
43.1 |
|
19.1 |
|
54.3 |
|
262.6 |
|
Veracruz |
|
132.5 |
|
164.9 |
|
73.3 |
|
27.2 |
|
82.6 |
|
480.5 |
|
Villahermosa |
|
102.7 |
|
180.7 |
|
291.2 |
|
28.0 |
|
41.2 |
|
643.8 |
|
Total |
|
3,987.5 |
|
6,954.3 |
|
7,904.3 |
|
5,638.7 |
|
7,311.7 |
|
31,796.5 |
|
(1) |
Based on the Mexican construction price index in accordance with the terms of our master development plan. |
Note: |
As of December 31, 2025, we have invested Ps. 6,961.5 million (which is included in the investment commitments for this period shown above). |
39
The following table sets forth our committed and indicative investments for the regulated part of our business for each Mexican airport pursuant to the terms of our current master development plans for the periods presented.
|
|
Committed Investments |
|
Indicative Investments |
||
|
|
January 1, 2024- |
|
January 1, 2029- |
|
January 1, 2034- |
Airport |
|
December 31, 2028 |
|
December 31, 2033 |
|
December 31, 2038 |
|
|
(millions of constant Mexican pesos as of December 31, 2025)(1) |
||||
Cancún |
|
23,964.2 |
|
4,855.2 |
|
6,520.8 |
Cozumel |
|
791.1 |
|
314.0 |
|
415.8 |
Huatulco |
|
909.8 |
|
273.6 |
|
397.0 |
Mérida |
|
2,120.4 |
|
878.2 |
|
873.0 |
Minatitlán |
|
257.9 |
|
139.4 |
|
127.2 |
Oaxaca |
|
2,366.2 |
|
230.7 |
|
453.8 |
Tapachula |
|
262.6 |
|
240.0 |
|
171.1 |
Veracruz |
|
480.5 |
|
684.4 |
|
582.6 |
Villahermosa |
|
643.8 |
|
329.8 |
|
314.0 |
Total |
|
31,796.5 |
|
7,945.3 |
|
9,855.3 |
(1) |
Based on the Mexican construction price index in accordance with the terms of our master development plan. |
Note: |
As of December 31, 2025, we have invested Ps. 6,961.5 million (which is included in the investment commitments for this period shown above). |
40
BUSINESS OVERVIEW
We hold concessions to operate, maintain and develop nine airports in the southeast region of Mexico for fifty years from November 1, 1998. As operators of these airports, we charge airlines, passengers and other users fees for the use of the airports’ facilities. We also derive rental and other income from commercial activities conducted at our airports, such as the leasing of space to restaurants and retailers. Our Mexican concessions include the concession for Cancún Airport, which was the second busiest airport in Mexico in 2025 in terms of passenger traffic, and the busiest in terms of international passengers in regular service, according to the AFAC, Mexico’s federal authority on aviation. We also hold concessions to operate the airports in Cozumel, Huatulco, Mérida, Minatitlán, Oaxaca, Tapachula, Veracruz and Villahermosa.
We own a controlling interest in Airplan. Airplan has concessions to operate the following airports in Colombia: the Enrique Olaya Herrera Airport in Medellín, the José María Córdova International Airport in Rionegro, the Los Garzones Airport in Montería, the Antonio Roldán Betancourt Airport in Carepa, the El Caraño Airport in Quibdó and the Las Brujas Airport in Corozal. For more information on the concessions in Colombia, see “Item 4. Information on the Company-Colombian Regulatory Framework-Scope of Colombian Concessions and General Obligations.”
Our subsidiary Aerostar holds a lease to operate, maintain and develop the LMM Airport, in San Juan, Puerto Rico, for an initial term of forty (40) years from February 27, 2013 (the “LMM Lease”).
Following the acquisition of URW Airports, LLC on December 11, 2025, our subsidiary ASUR Airports, LLC (“ASUR Airports”) is currently managing select commercial programs at key U.S. airport terminals, including: Terminals 1, 2, 3, 6, and Tom Bradley International Terminal and Tom Bradley International Terminal West at LAX; Terminal 5 at ORD; and Terminals 8 and New Terminal One at JFK”.
On April 10, 2026, we published our Sustainability Report. The purpose of this report is to describe the measures we implemented towards achieving our environmental, social and governance goals, and to set new strategic objectives for the benefit of the company and our stakeholders. The Sustainability Report covers our and our subsidiaries’ operations from January 1, 2025 to December 31, 2025, with a particular focus on human rights, working conditions, environment and anticorruption matters. In 2022, we established a Sustainability Committee that reports to our Board of Directors, in line with our 2021 Sustainability Report. In the short and medium terms (2026-2029), our main sustainability objectives are to work towards emissions reductions and energy efficiency through both on-site and off-site generation of solar power, adopt measures to supplement our water consumption with systems to capture and use rainwater and create succession plans for our independent Board members and key executives. In the long term, we intend to make our operations carbon neutral, promote gender equity, align our corporate governance with best practice and increase our participation in and support for local communities. Our Sustainability Report is available on our website at www.asur.com.mx. For the avoidance of doubt, our Sustainability Report is not incorporated in, and should not be viewed as part of, this Annual Report on Form 20-F.
Mexico
Mexico is one of the main tourist destinations in the world. Mexico has historically ranked in the top 10 countries worldwide in terms of foreign visitors, with approximately 42.2 million visitors in 2023, 45.0 million visitors in 2024 and 47.8 million visitors in 2025, according to the Mexican Ministry of Tourism. Within Latin America and the Caribbean, Mexico ranked first in 2023, 2024 and 2025 in terms of number of foreign visitors and income from tourism, according to the World Tourism Organization. The tourism industry is one of the largest generators of foreign exchange in the Mexican economy. Within Mexico, the southeast region (where our airports are located) is a principal tourist destination due to its beaches and cultural and archeological sites, which are served by numerous hotels and resorts.
Cancún and its surroundings were the most frequently visited international tourism destination in Mexico in 2025, according to the Mexican Ministry of Tourism. Cancún Airport represented 75.3%, 73.4% and 72.3% of our Mexican passenger traffic volume and 78.6%, 79.1% and 77.7% of our Mexican revenues in 2023, 2024 and 2025, respectively. As of December 31, 2025, Cancún had 35,880 hotel rooms, according to the Mexican Ministry of Tourism. We believe that Cancún Airport benefits from its proximity to the Mayan Riviera, a 129-kilometer (80-mile) stretch of coastal resorts and hotels that is among Mexico’s most rapidly developing tourism areas. According to Mexican Ministry of Tourism, the Mayan Riviera had 51,597 hotel rooms as of December 31, 2025.
41
Our Mexican airports served approximately 43.5 million passengers in 2023, approximately 41.4 million passengers in 2024 and approximately 40.6 million passengers in 2025. For year-by-year passenger figures, see “Item 4. Information on the Company—Business Overview—Our Mexican Airports.”
The United States currently is a significant source of passenger traffic volume in our Mexican airports. In 2023, 2024 and 2025 international passengers represented 51.1%, 52.2% and 51.5% respectively, of the total passenger traffic volume in our Mexican airports. In 2023, 2024 and 2025, 61.8%, 62.2% and 61.3%, respectively, of the international passengers in our Mexican airports traveled on flights originating in or departing to the United States. As of December 31, 2025, three Mexican and 19 international airlines, including United States-based airlines such as American Airlines and United Airlines, operated flights, directly or through code-sharing arrangements (where one aircraft has two or more flight numbers of different, allied airlines), that originated from or departed for the United States at our Mexican airports.
The following table sets forth our revenues from our Mexican operations for the period presented.
|
|
|
Year ended December 31, |
||||||
|
|
2023 |
|
2024 |
|
2025 |
|||
|
|
|
(thousands of Mexican pesos) |
||||||
Revenues: |
|
|
|
|
|
|
|
|
|
Aeronautical Services |
|
Ps. |
11,247,569 |
|
Ps. |
13,915,654 |
|
Ps. |
14,273,248 |
Non-Aeronautical Services |
|
|
6,906,759 |
|
|
7,056,319 |
|
|
7,153,825 |
Construction Services |
|
|
873,574 |
|
|
2,196,717 |
|
|
6,561,131 |
Total |
|
|
19,027,902 |
|
|
23,168,690 |
|
|
27,988,204 |
Aeronautical Services
General
Aeronautical services represent the most significant source of our revenues at our Mexican airports. All of our revenues from aeronautical services are regulated under the “dual-till” price regulation system applicable to our Mexican airports. For more information on the “dual-till” price regulation system, see “Item 4. Information on the Company—Mexican Regulatory Framework—Price Regulation—Regulated Revenues.”
Our revenues from aeronautical services are derived from: passenger charges, landing charges, aircraft parking charges, charges for the use of passenger walkways and charges for the provision of airport security services. Charges for aeronautical services generally are designed to compensate an airport operator for its infrastructure investment and maintenance expense. Aeronautical revenues are principally dependent on three factors: passenger traffic volume, the number of air traffic movements and the weight of the aircraft. In 2023, 2024 and 2025, 59.0%, 59.3% and 52.1% of our consolidated revenues, respectively, were derived from aeronautical services.
42
Passenger Charges
At our Mexican airports, we collect a passenger charge for each departing passenger on an aircraft (other than diplomats, infants and transfer and transit passengers). We do not collect passenger charges from arriving passengers. Passenger charges are automatically included in the cost of a passenger’s ticket and generally collected twice monthly from each airline. As of March 2024, the charge for international passengers was U.S.$42.0, U.S.$41.8, U.S.$41.3, U.S.$30.9 and U.S.$37.5, for Cancún, Mérida, Oaxaca, Tapachula and Veracruz airports, respectively. As of March 2024, the charge for Mexican domestic passengers was Ps. 302.6, Ps. 566.4, Ps. 660.3, Ps. 528.4 and Ps. 566.4, for Cancún, Mérida, Oaxaca, Tapachula and Veracruz airports, respectively. As of February 2025, the charge for international passengers was U.S.$52.4 and the charge for Mexican domestic passengers was Ps. 371.9 for Cozumel airport. As of June 2025, the charge for international passengers was U.S.$48.0, U.S.$32.6 and U.S.$41.1, for Huatulco, Minatitlán and Villahermosa airports, respectively. As of June 2025, the charge for Mexican domestic passengers was Ps. 736.2, Ps. 562.9 and Ps. 622.0 for Huatulco, Minatitlán and Villahermosa airports, respectively. International passenger charges are currently dollar-denominated, but generally collected in Mexican pesos based on the average exchange rate during the month prior to the flight. Mexican domestic passenger charges are peso-denominated. In each of 2023, 2024 and 2025, passenger charges at our Mexican airports represented 60.8%, 61.7% and 61.4%, respectively, of our aeronautical revenues and 35.8%, 36.6% and 32.0%, respectively, of our total consolidated revenues. From time to time, including in 2025, we have offered discounts on passenger charges at certain of our airports.
Aircraft Landing and Parking Charges, Passenger Walkway Charges and Airport Security Charges
At our Mexican airports, we collect various charges from carriers for the use of our facilities by their aircraft and passengers. For each aircraft’s arrival, we collect a landing charge that is based on the average of the aircraft’s maximum takeoff weight and the aircraft’s weight without fuel. We also collect aircraft parking charges based on the time an aircraft is at an airport’s gate or parking position. Parking charges at several of our Mexican airports vary based on the time of day that the relevant service is provided (with higher fees generally charged during peak usage periods at certain of our airports). We collect aircraft parking charges the entire time an aircraft is on our aprons. Airlines are also assessed charges for the connection of their aircraft to our terminals through a passenger walkway. We also assess an airport security charge, which is collected from each airline based on the number of its departing passengers. We provide airport security services at our airports through third-party contractors. We also provide firefighting and rescue services at our airports.
Non-aeronautical Services
General
At our Mexican airports, non-aeronautical services have historically generated a proportionately smaller portion of our revenues, but have become an increased source of revenues in recent years. Our revenues from non-aeronautical services are derived from commercial activities (such as the leasing of space in our airports to retailers, restaurants, airlines and other commercial tenants) and access fees charged to providers of complementary services in our airports (such as catering, handling and ground transport). In 2023, 2024 and 2025, 36.0%, 31.6% and 28.2% of our consolidated revenues, respectively, were derived from non-aeronautical services from our Mexican airports as defined under the Mexican Airport Law and from our international airports (Puerto Rico and Colombia) since June 1, 2017 and October 29, 2017, the dates on which we began consolidating the results of Puerto Rico and Colombia, respectively.
Currently, the leasing of space in our Mexican airports to airlines and other commercial tenants represents the most significant source of our revenues from non-aeronautical services. Although certain of our revenues from non-aeronautical services are regulated under our “dual-till” price regulation system, our revenues from commercial activities (other than the lease of space to airlines and other airport service providers that is considered essential to an airport) are not regulated.
43
Commercial Activities
Leading international airports generally generate an important portion of their revenues from commercial activities. An airport’s revenues from commercial activities are largely dependent on passenger traffic, its passengers’ level of spending, terminal design, the mix of commercial tenants and the basis of fees charged to businesses operating in the airport. Revenues from commercial activities also depend substantially on the percentage of traffic represented by international passengers due to the revenues generated from duty-free shopping. We believe that revenues from commercial activities account for 26.2% or more of the consolidated revenues of many leading international airports. Accordingly, a significant part of our business strategy is focused on increasing our revenues from commercial activities in our Mexican airports.
In 2023, we opened 17 commercial spaces, including two in Cancún, one in Cozumel, one in Huatulco, eight in Mérida, four in Oaxaca and one in Veracruz. In 2024, we opened 12 commercial spaces, including two in Huatulco, five in Mérida, one in Minatitlán, two in Tapachula, one in Veracruz and one in Villahermosa. In 2025, we opened six commercial spaces, all in Mérida.
Within our nine Mexican airports, we leased 613 commercial spaces through 368 contracts with tenants as of December 31, 2025, including restaurants, banks, retail outlets (including duty-free stores), currency exchange bureaus and car rental agencies. Our most important tenants in terms of occupied space and revenue in 2025 were Dufry México and Controladora Mera and its affiliates.
Access Charges
At each of our Mexican airports, we earn revenues from charging access fees to various third-party providers of complementary services, including luggage check-in, sorting and handling, aircraft servicing at our gates, aircraft cleaning, cargo handling, aircraft catering services and assistance with passenger boarding and deplaning. Our revenues from access charges are regulated under our “dual-till” price regulation system. Under current regulations, each of these services may be provided by the holder of a Mexican airport concession, by a carrier or by a third party hired by a concession-holder or a carrier. Typically, these services are provided by third parties, whom we charge an access fee based on a percentage of revenues that they earn at our Mexican airports. Under the Mexican Airport Law, third-party providers of complementary services are required to enter into agreements with the respective concession holder at that airport. Nine different contractors provide handling services at our nine Mexican airports.
Consorcio Aeroméxico, the parent company of Aeroméxico, owns Administradora Especializada en Negocios, S.A. de C.V., or Administradora Especializada, the successor company to Servicios de Apoyo en Tierra, or SEAT, a company that provides certain complementary services, such as baggage handling, to various carriers at airports throughout Mexico. SEAT operated at our Mexican airports prior to our commencement of operations under our Mexican concessions and continues to do so through its successor company.
Under the Mexican Airport Law, we are required to provide complementary services at each of our Mexican airports if there is no third party providing such services. Each of our Mexican airports has more than one third party provider of complementary services. Minatitlán Airport has the least third-party providers of complementary services with four.
Automobile Parking and Ground Transport
Each of our Mexican airports has public car parking facilities consisting of open-air parking lots. The only Mexican airport at which we do not charge parking fees is Cozumel. Revenues from car parking at our Mexican airports currently are not regulated, although they could become regulated upon a finding by the CNA that there are no competing alternatives. On August 21, 2019, the Board of Commissioners of COFECE (now CNA) in Mexico notified Aeropuerto de Cancún of a decision issued on July 25, 2019, which provides for: (i) administrative liability for monopolistic practices (as described in Article 54, Section I and Article 56, Section V of the LFCE (refusal of access)) and (ii) a fine of Ps. 73 million. We appealed COFECE’s decision in November 2023.
In November 2023, a Federal specialized Judge granted to Aeropuerto de Cancún constitutional protection against COFECE’s decision and ordered the Board of Commissioners to review and justify whether and as of when the company actually incurred in the relative monopolist practice of “refusal to deal”. Both, COFECE and Aeropuerto de Cancún appealed this judgment, which is currently under review by a specialized Court of Appeals.
44
We collect revenues from various commercial vehicle operators, including taxi, bus and other ground transport operators. Our revenues from permanent providers of ground transport services, such as access fees charged to taxis, are regulated activities, while our revenues from non-permanent providers of ground transport services, such as access fees charged to charter buses, are not regulated revenues.
Airport Security
The AFAC, Mexico’s federal authority on aviation, and the Office of Public Security issue guidelines for airport security in Mexico. At each of our Mexican airports, security services are provided by independent security companies that we hire. In recent years, we have undertaken various measures to improve the security standards at our Mexican airports. These measures included increasing the responsibilities of the private security companies that we hire, the implementation, in accordance with regulations issued by ICAO, of integrated computer tomography and baggage detection system for international and domestic flights to detect explosive traces, the modernization of our carry-on luggage scanning and security equipment, the implementation of strict access control procedures to the restricted areas of our Mexican airports and the installation of a closed-circuit television monitoring system in some of our Mexican airports.
In response to the September 11, 2001 terrorist attacks in the United States, we have taken additional steps to increase security at our airports. At the request of the Transportation Security Administration of the United States, the former General Office of Civil Aviation (currently the AFAC) issued directives in October 2001 establishing new rules and procedures to be adopted at our airports. Under these directives, these rules and procedures were to be implemented immediately and for an indefinite period of time.
To comply with these directives, we reinforced security by:
| ● | increasing and improving the security training of Mexican airport personnel, |
| ● | increasing the supervision and responsibilities of both our security personnel and airline security personnel that operate in our Mexican airports, |
| ● | issuing new electronic identification cards to Mexican airport personnel, |
| ● | reinforcing control of different access areas of our Mexican airports, and |
| ● | physically changing the access points to several of the restricted areas of our Mexican airports. |
Airlines have also contributed to the enhanced security at our Mexican airports as they have adopted new procedures and rules issued by the AFAC applicable to airlines. Some measures adopted by the airlines include adding more points for verification of passenger identification, inspecting luggage prior to check-in and reinforcing controls over access to airplanes by service providers (such as baggage handlers and food service providers).
45
Fuel
As part of the amendments that opened Mexico’s airports to private investment, allairport property and installations related to the supply and storage of aircraft fuel were retained by the Mexican Airport and Auxiliary Services Agency (Aeropuertos y Servicios Auxiliares) considering that concession holders were forbidden to provide such services. Pursuant to our Mexican concessions, the Mexican Airport and Auxiliary Services Agency entered into several agreements, under which it was obligated to pay to each of our subsidiary concession holders a fee for access to our facilities equivalent to 1.0% of the service charge for fuel supply. As of January 1, 2015, and as a result of certain structural reforms in Mexico’s constitutional and regulatory framework in connection with, among other things, the energy sector, private parties are now eligible to store, commercialize, distribute and supply fuel in airports to air carriers, air operators and third-party service providers of non-aeronautical services. In order to store, commercialize, distribute and supply fuel in airports, the eligible private parties are currently required to obtain a permit from the National Energy Commission (Comisión Nacional de Energía). In addition, third-party service providers of non-aeronautical services are required to obtain a favorable opinion from the Mexican Ministry of Energy (Secretaría de Energía), and the Mexican Ministry of Infrastructure, Communications and Transportation (Secretaría de Infraestructura, Comunicaciones y Transportes) in order to be able to acquire such fuel. Pursuant to the concession titles of our Mexican airports, only the Mexican Airport and Auxiliary Services Agency was entitled to store and supply fuel in our airports. However, on January 26, 2024, we received a notice from the SICT informing that such exclusivity was terminated. As of April 16, 2026, one third-party service provider is currently selling fuel at our Mexican airports.
46
Construction Services Revenue
Under IFRS, an operator of a service concession that is required to make capital improvements to concessioned assets, such as us, is deemed to provide construction or upgrade services. Revenues from construction services are recognized in accordance with the methods prescribed (input method) for measuring progress towards completion of each project, as approved by the grantor. Improvements made are expected to complement the infrastructure of the airports operated by the Company. Revenues from construction services are not subject to regulation under our dual-till price regulation system in Mexico, Colombia and Puerto Rico.
Our Mexican Airports
In 2025, our Mexican airports served a total of 40.6 million passengers, 51.5% of which were international passengers. In 2025, Cancún Airport accounted for 72.3% of our Mexican passenger traffic volume and 77.7% of our Mexican revenues.
All of our Mexican airports are designated as international airports under Mexican law, which indicates that they are equipped to receive international flights and have customs and immigration facilities.
The following table sets forth the number of passengers served by our Mexican airports based on flight origination or destination.
|
|
Passengers by Flight Origin or Destination(1) |
|
||||||||||
|
|
Year ended December 31, |
|
||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Percentage |
|
|
|
|
|
|
|
|
|
|
|
|
|
of total |
|
|
|
2021 |
|
2022 |
|
2023 |
|
2024 |
|
2025 |
|
2025 |
|
|
|
(in thousands ) |
|
||||||||||
Región |
|
|
|
|
|
|
|
|
|
|
|
|
|
Mexico(2) |
|
15,431 |
|
19,135 |
|
21,669 |
|
20,166 |
|
20,033 |
|
49.3 |
% |
United States |
|
10,765 |
|
13,197 |
|
13,727 |
|
13,439 |
|
12,808 |
|
31.6 |
% |
Canada |
|
510 |
|
2,112 |
|
3,148 |
|
3,456 |
|
3,599 |
|
8.9 |
% |
Europe |
|
918 |
|
2,266 |
|
2,138 |
|
2,014 |
|
1,951 |
|
4.8 |
% |
Latin America |
|
1,514 |
|
2,815 |
|
2,785 |
|
2,345 |
|
2,205 |
|
5.4 |
% |
Total |
|
29,138 |
|
39,525 |
|
43,467 |
|
41,420 |
|
40,596 |
|
100.0 |
% |
(1) |
Figures exclude passengers in transit and private aviation passengers. |
(2) |
Figures include international passengers on domestic flights; in 2025, such passengers accounted for 1.6% of all Mexican domestic passengers. |
In 2023, 2024 and 2025, our Mexican domestic passengers traveled to or from Mexico City through Mexico City International Airport (AICM) representing 45.0%, 41.6% and 39.7%, respectively, of our domestic passengers, and through Felipe Ángeles Airport (AIFA), representing 5.1%, 9.5% and 10.1%, respectively, of our domestic passengers.
The following table sets forth the total traffic volume and air traffic movements in our nine Mexican airports for the periods presented.
|
|
Airport Traffic |
||||||||
|
|
Year ended December 31, |
||||||||
|
|
2021 |
|
2022 |
|
2023 |
|
2024 |
|
2025 |
|
|
(in thousands ) |
||||||||
Passengers: |
|
|
|
|
|
|
|
|
|
|
Total |
|
29,138.5 |
|
39,524.0 |
|
43,467.9 |
|
41,420.4 |
|
40,595.7 |
Air Traffic Movements |
|
|
|
|
|
|
|
|
|
|
Total |
|
303.6 |
|
360.4 |
|
379.2 |
|
361.1 |
|
353.1 |
47
The following table sets forth the passenger traffic volume for each of our Mexican airports during the periods indicated:
|
|
Passenger Traffic |
||||||||
|
|
Year ended December 31, |
||||||||
|
|
2021 |
|
2022 |
|
2023 |
|
2024 |
|
2025 |
|
|
( in thousands) |
||||||||
Cancún |
|
22,318.5 |
|
30,343.0 |
|
32,750.4 |
|
30,411.5 |
|
29,345.5 |
Mérida |
|
2,079.5 |
|
3,079.6 |
|
3,674.1 |
|
3,699.9 |
|
3,939.7 |
Veracruz |
|
1,103.5 |
|
1,333.6 |
|
1,665.7 |
|
1,712.8 |
|
1,872.7 |
Villahermosa |
|
976.5 |
|
1,214.2 |
|
1,396.7 |
|
1,481.1 |
|
1,447.4 |
Oaxaca |
|
913.9 |
|
1,304.0 |
|
1,693.0 |
|
1,787.4 |
|
1,865.0 |
Huatulco |
|
692.2 |
|
971.0 |
|
914.7 |
|
847.2 |
|
801.8 |
Cozumel |
|
531.7 |
|
663.3 |
|
677.5 |
|
713.0 |
|
646.6 |
Tapachula |
|
424.2 |
|
503.3 |
|
553.7 |
|
615.0 |
|
519.1 |
Minatitlán |
|
98.5 |
|
112.0 |
|
142.1 |
|
152.5 |
|
157.9 |
Total |
|
29,138.5 |
|
39,524.0 |
|
43,467.9 |
|
41,420.4 |
|
40,595.7 |
The following table sets forth the air traffic movements in each of our Mexican airports during the periods indicated:
|
|
Air Traffic Movements by Airport(1) |
||||||||
|
|
Year ended December 31, |
||||||||
|
|
2021 |
|
2022 |
|
2023 |
|
2024 |
|
2025 |
Cancún |
|
176,549 |
|
214,340 |
|
223,284 |
|
206,043 |
|
198,630 |
Mérida |
|
39,273 |
|
51,589 |
|
57,212 |
|
56,330 |
|
59,680 |
Veracruz |
|
18,476 |
|
19,932 |
|
22,195 |
|
23,334 |
|
24,123 |
Villahermosa |
|
17,665 |
|
19,751 |
|
22,915 |
|
23,014 |
|
18,733 |
Oaxaca |
|
15,899 |
|
18,787 |
|
20,842 |
|
18,328 |
|
18,381 |
Cozumel |
|
15,146 |
|
13,123 |
|
11,997 |
|
12,718 |
|
11,597 |
Tapachula |
|
9,606 |
|
9,706 |
|
9,186 |
|
9,985 |
|
10,326 |
Huatulco |
|
7,934 |
|
9,904 |
|
8,325 |
|
7,724 |
|
7,298 |
Minatitlán |
|
3,045 |
|
3,300 |
|
3,196 |
|
3,658 |
|
4,372 |
Total |
|
303,593 |
|
360,432 |
|
379,152 |
|
361,134 |
|
353,140 |
(1) |
Includes departures and landings. |
The following table sets forth the air traffic movements in our Mexican airports for the periods indicated in terms of commercial, charter and general aviation:
|
|
Air Traffic Movements by Aviation Category |
||||||||
|
|
Year ended December 31, |
||||||||
|
|
2021 |
|
2022 |
|
2023 |
|
2024 |
|
2025 |
Commercial Aviation |
|
250,646 |
|
298,398 |
|
316,992 |
|
301,925 |
|
289,096 |
Charter Aviation |
|
3,431 |
|
2,217 |
|
1,968 |
|
2,083 |
|
1,885 |
General Aviation(1) |
|
49,516 |
|
59,817 |
|
60,192 |
|
57,126 |
|
62,159 |
Total |
|
303,593 |
|
360,432 |
|
379,152 |
|
361,134 |
|
353,140 |
(1) |
General aviation generally consists of small private aircraft. |
48
Cancún International Airport
Cancún International Airport (the “Cancún Airport”) is our most important airport in terms of passenger volume, air traffic movements and contribution to revenues. In 2025, Cancún Airport was the second busiest airport in Mexico in terms of passenger traffic and the first busiest in terms of international passengers in regular service, according to the AFAC. The airport is located approximately 16 kilometers (10 miles) from the city of Cancún, which has a population of 998,461. A substantial majority of the airport’s international passengers (61.3% in 2023, 61.5% in 2024, and 60.6% in 2025) began or ended their travel in the United States. The airport’s most important points of origin and destination are Mexico City, Monterrey, Toronto, Dallas and Houston. Due to the airport’s significant number of passengers from the United States, its traffic volume and results of operations are substantially dependent on economic conditions in the United States. See “Item 3. Key Information—Risk Factors—Risks Related to Our Operations—Our business could be adversely affected by a downturn in the economies of the United States or Mexico”.
During 2025, approximately 29.3 million passengers traveled through Cancún Airport through Terminal 2, Terminal 3, which was opened in May 2007 and Terminal 4, which was opened in November 2017.
Cancún is located in the state of Quintana Roo. Cancún and its surroundings were the most visited international tourism destination in Mexico in 2025, according to the Mexican Ministry of Tourism. According to Mexican Ministry of Tourism, the Cancún area had 37,648 hotel rooms as of December 31, 2025. Although Cancún may be reached by land, sea or air, we believe most tourists arrive by air through Cancún Airport. By air, Cancún is approximately one and a half to five hours from most major cities in the United States and 10 to 13 hours from most major European cities.
Cancún is located near beaches, coral reefs, ecological parks and Mayan archeological sites. Cancún Airport serves travelers visiting the Mayan Riviera, which stretches from Cancún south to the Mayan ruins at Tulum, and includes coastal hotels and resorts in the towns of Playa del Carmen, Tulum and Akumal. According to the Mexican Ministry of Tourism, the greater Cancún area (including the Mayan Riviera) was estimated to have an aggregate of 89,245 hotel rooms as of December 31, 2025.
Since most of the airport’s passengers are tourists, the airport’s traffic volume and results of operations are influenced by the perceived attractiveness of Cancún as a tourist destination. See “Item 3. Key Information—Risk Factors—Risks Related to Our Operations—Our business is highly dependent upon revenues from Cancún International Airport.”
The airport’s facilities include a total of 82 aircraft parking stands, 39 of which are remote aircraft parking stands, Terminal 1 (which has been closed since March, 2018 and will reopen in July 2026), Terminal 2 (which includes a satellite wing), Terminal 3 (which became operational in May 2007 as described below), Terminal 4 (which became operational in November 2017 as described below) and a general aviation building that handles private aircraft. The airport has 62 gates, 40 of which are accessible by passenger walkways. Terminal 2 has 9 gates accessible by passenger walkways, 3 contact gates and 8 remote gates. Terminal 3 has 17 boarding gates accessible by passenger walkways and 5 remote gates. Terminal 4 has 14 boarding gates accessible by passenger walkways and 6 remote gates. The airport has 752 commercial and airport spaces located throughout Terminals 2, 3 and 4 and one bank branch located in Terminal 2.
Terminal 1 in Cancún Airport, which we acquired on June 30, 1999, has an area of 20,383 square meters (approximately 234.0 thousand square feet). After having closed in October 2005 following Hurricane Wilma, Terminal 1 was reopened in November 2013 but closed again in March 2018, and remains closed as of the date of this report. We are planning to undertake a rebuilding and expansion of Terminal 1, which we estimate will begin operations in July 2026.
As part of our commercial strategy, in the fourth quarter of 2005 we completed an expansion of 8,224 square meters (approximately 88.6 thousand square feet) and a remodeling of 1,387 square meters (approximately 14.4 thousand square feet), giving us a total of 52,522 square meters (approximately 563.3 thousand square feet) in Cancún Airport’s Terminal 2. As part of our Mexican Master Development Program, we remodeled Terminal 2 in 2014. Specifically, we added security checkpoints and remodeled the space to improve passenger traffic. The remodel freed up space on the ground floor and upper level of Terminal 2 and, as a result, we were able to add new commercial spaces to the terminal.
49
On December 6, 2005, we began construction on Terminal 3, which we opened on May 17, 2007, and which began operations on May 18, 2007. With a total investment of approximately U.S.$100.0 million, Terminal 3 constitutes our most ambitious investment project to-date. Terminal 3 doubled international passenger capacity at Cancún Airport. The new building, measuring a total area of 45,263 square meters (approximately 487.2 thousand square feet), has capacity for 84 check-in counters and 11 boarding gates with boarding bridges and four remote boarding gates served by buses, as well as 27 retail outlets and one bank branch. The terminal features state-of-the-art passenger information systems and security equipment, including the first CT scanning system (a system that uses x-rays to form a three-dimensional model of the contents of a piece of luggage) in Mexico for all checked baggage.
Furthermore, in order to accommodate expected increases in passenger traffic and operations, the expansion of Terminal 3 was completed in 2015 as part of our master development program in Mexico. As part of the expansion, we carried out a remodeling of the security checkpoints, including the installation of additional security lines with X-ray equipment and more waiting areas, an expansion of the baggage reclaim area by approximately 1,800 square meters and the construction of additional carousels with larger flow space, an expansion of the customs area by approximately 1,400 square meters, a remodeling of the check-in area, including an expansion by approximately 700 square meters and the addition of approximately 30 new service counters, and the redesign of the boarding lounge to accommodate six additional contact stands and a mezzanine level for arrivals.
Terminal 4 opened in November 2017. Equipped with a total of 14 boarding gates, Terminal 4 can cater to up to nine million domestic and international passengers a year.
On December 11, 2023, the Ministry of Infrastructure, Communications and Transportation approved our request for a new Master Development Plan for 2024 – 2038 as well as the maximum rates applicable to our Mexican airports, which allowed us to improve and increase the infrastructure of such airports. Consequently, the airport’s passenger handling capacity as of December 31, 2025 was 36.6 million passengers per year.
Terminal 4 is located to the west of the existing airport facilities, between runway ends 12L and 12R. The terminal building currently has a surface area of more than 64,000 square meters, as well as 10 security filters and 14 aircraft parking stands, each with its own boarding bridge. Terminal 4 has been designed to be easily expandable when capacity increases are required, without causing disruption in day-to-day operations, and will maintain separate passenger flows for domestic and international passengers. In addition, the terminal has a multi-level floor plan, with the upper level reserved for departing passengers and the mezzanine and lower levels for arriving passengers. The new terminal consists of ten buildings with two-level double height spaces and a mezzanine level.
Cancún Airport currently has two runways. The first runway has a length of 3,500 meters (2.2 miles). The second runway, which was completed in 2009, has a length of 2,800 meters (1.7 miles). Along with the second runway, we also built a new control tower at Cancún Airport in 2009.
In April 2006, we obtained a license to develop cargo facilities at Cancún Airport, which are currently being operated by our subsidiary Caribbean Logistics, S.A. de C.V. (previously Asur Carga, S.A. de C.V.).
Mérida International Airport
Mérida International Airport (the “Mérida Airport”) serves the inland city of Mérida, which has a population of 996,761, and surrounding areas in the state of Yucatán. Mérida Airport ranked second among our Mexican airports in 2025 in terms of passenger traffic. The substantial majority of this airport’s passengers are domestic. The airport’s primary point of origin and destination is Mexico City. In 2025, approximately 3.9 million passengers traveled through Mérida Airport.
Mérida Airport attracts a mix of both business travelers and tourists. The city of Mérida is an established urban area with numerous small and medium-sized businesses. The city is approximately 120 kilometers (75 miles) by highway from Chichen Itza and approximately 80 kilometers (50 miles) from Uxmal, pre-Columbian archeological sites that attract a significant number of tourists.
The airport has two perpendicular runways, one with a length of 3,200 meters (2.0 miles) and another with a length of 2,300 meters (1.4 miles). The airport has one terminal and one general aviation building, with seven gates accessible by passenger walkways and six boarding positions without walkways.
50
In 2023, 2024 and 2025, 26,027, 26,201 and 25,439 metric tons of cargo, respectively, were transported through Mérida Airport, making it our second airport in terms of cargo volume. In 2023, 2024 and 2025, Mérida represented 34.7%, 35.8% and 35.4%, respectively, of our total cargo volume.
There are currently 52 commercial spaces operating at Mérida Airport. One business is operated by Grupo de Desarrollo del Sureste, S.A. de C.V. (“GDS”) pursuant to a long-term lease contract that terminated on January 1, 2009. This lease allowed GDS to construct and develop the airport’s air cargo terminal. Because GDS continued operating the business notwithstanding the termination of the lease, we initiated legal proceedings to have them evicted. A final judgment was issued in February 2017, terminating the lease agreement and ordering the return of 80,000 leased square meters to us. In December 2017, an area of 78,000 square meters was judicially delivered to us, and in May 2018, we recovered full possession of the building leased to customs agents.
On December 15, 2020, we filed a petition before the District Court of Mérida regarding the failure by GDS to voluntary deliver the remaining property. On January 14, 2021, the District Court of Mérida published an opinion stating that the remaining property had not been delivered to us, and therefore we petitioned the Ninth Civil Court of Mexico City to order the forced delivery of the remaining property. On March 4, 2026, we recovered full possession of the remaining 14,000 square meters that were in the possession of GDS.
In addition to the business formerly operated by GDS, we opened a retail store in the terminal in August 2007 and a car rental company was opened in October 2009. Our concession provides us the right to collect landing charges and parking charges for aircraft using the cargo terminal.
Cozumel International Airport
Cozumel International Airport (the “Cozumel Airport”) is located on the island of Cozumel in the state of Quintana Roo. The airport primarily serves foreign tourists. During 2025, 646,606 passengers traveled through Cozumel International Airport, most of which were international passengers. Cozumel is the most frequently visited destination for cruise ships in Mexico, hosting approximately 4.1 million, 4.6 million and 4.7 million cruise ship visitors in 2023, 2024 and 2025, respectively. Cozumel has one of the world’s largest coral reserves, and many passengers traveling to Cozumel are divers. The airport’s most important points of origin and destination are Mexico City, Dallas and Houston. The island of Cozumel has a population of 114,676.
The airport has a commercial runway with a length of 2,700 meters (1.7 miles). The airport has one main commercial terminal with six boarding positions and a total area of 12,726 square meters (approximately 136.98 thousand square feet). The airport also has a general aviation building for small private aircraft. There are currently 29 commercial spaces operating at Cozumel Airport.
Villahermosa International Airport
Villahermosa International Airport (the “Villahermosa Airport”) is located in the state of Tabasco, approximately 75 kilometers (46.9 miles) from Palenque, a Mayan archeological site. The city of Villahermosa has a population of 1,262,730. Oil exploration is the principal business activity in the Villahermosa area, and most of the airport’s passengers are businesspeople working in the oil industry. During 2025, the airport served approximately 1.4 million passengers, substantially all of which arrived on domestic flights. The airport’s most important points of origin and destination are Mexico City and Monterrey.
As a result of a modernization project carried out in 2006, the airport’s commercial aviation apron was extended by a total of 12,521 square meters (approximately 134.6 thousand square feet), representing an increase of 87.0%. The terminal building was expanded from 5,463 square meters (approximately 58.7 thousand square feet) to 9,584 square meters (approximately 103.2 thousand square feet), representing an increase of 77.0%. There are currently 24 commercial spaces operating at Villahermosa Airport.
The airport has one runway with a length of 2,200 meters (1.4 miles), which was repaired in 2020. The airport’s terminal has eight contact positions, including four with telescopic corridors for the direct boarding and deplaning of passengers between the aircraft and the terminal building.
In February 2014, the Palenque International Airport opened in the city of Palenque, 46.9 miles from Villahermosa. We do not believe the Palenque International Airport has had an impact on passenger traffic at Villahermosa Airport and we estimate that any impact that may be experienced in the future would not be significant.
51
Oaxaca International Airport
Oaxaca International Airport (the “Oaxaca Airport”) serves the city of Oaxaca, which is the capital of the state of Oaxaca. The city of Oaxaca, located 390 kilometers (243.8 miles) from the Pacific coast, has a population of 464,283. The airport served 1.9 million passengers in 2025, most of which were domestic. The airport’s passengers are primarily Mexican business people and tourists; thus, its passenger volume and results of operations are dependent on Mexican economic conditions. Oaxaca is a picturesque colonial city located near several tourist attractions, including the archeological ruins of Monte Alban and Mitla. The airport’s most important point of origin and destination is Mexico City and Tijuana.
The airport has one runway with a length of 2,450 meters (1.5 miles) and a terminal building with nine contact positions. The airport also includes a general aviation building for small private airplanes with 38 positions and two additional positions for helicopters. There are currently 23 commercial spaces operating at Oaxaca Airport.
Veracruz International Airport
Veracruz International Airport (the “Veracruz Airport”) is located in the city of Veracruz along the Gulf of Mexico. The city of Veracruz has a population of 760,952. Veracruz is one of the busiest ports in Mexico, accounting for 15.7% of all commercial traffic in Mexican ports, according to the Mexican Bureau of Ports, Veracruz accounted for 12.1% of all waterborne cargo handled by Mexican ports in 2025, being one of the main ports that concentrates the largest cargo movement in the country. In 2025, the airport served approximately 1.9 million passengers. Because the airport’s passengers are primarily Mexican business people, its passenger volume and results of operations are dependent on Mexican economic conditions. The airport’s most important points of origin and destination are Mexico City, Guadalajara, Monterrey and Cancún.
The original 4,065 square meters (43,700 square feet) of the terminal building at the airport were remodeled in 2005, and an extension of 2,000 square meters (21,500 square feet) was added, representing an increase of 49.0%. In addition, special collapsible jetways were built to protect passengers during boarding and disembarking, along with a new international baggage claim facility and bigger, newer offices and facilities for federal authorities. There are currently 31 commercial spaces operating at Veracruz Airport.
At the end of 2015, we concluded an extensive remodeling and expansion project in the terminal building at the Veracruz Airport, as foreseen in our Master Development Program in Mexico. In response to increased passenger numbers and with the aim of maintaining service standards, the surface area of the terminal building was expanded by 174% to over 17,500 square meters, with the installation of four new boarding gates with passenger boarding bridges, for a total of 12 gates. The expansion project has created increased capacity in baggage-screening facilities, queuing areas and counters for check-in, security filters, boarding lounges, luggage-reclaim areas, and public car parking, among other functional areas of the terminal-building complex. The new design of the terminal building also improves the separation of domestic and international passenger flows.
The airport has one perpendicular runway with a length of 2,400 meters (1.5 miles). The airport has one main commercial terminal. The airport also has a general aviation building for small private aircraft with 20 positions and seven additional positions for helicopters.
Huatulco International Airport
Huatulco International Airport (the “Huatulco Airport”) serves the Huatulco resort area in the state of Oaxaca on Mexico’s Pacific coast. Huatulco has a population of 46,823, and was first developed as a tourist resort in the late 1980s. The airport served 801,803 passengers in 2025, most of which were domestic. The substantial majority of the airport’s passengers are international tourists, although the majority arrive through domestic flights and are classified as domestic passengers because of their connection in Mexico City. The airport’s most important point of origin and destination is Mexico City.
The airport has one runway with a length of 3,000 meters (1.9 miles). It was extended from a previous length of 2,700 meters (1.7 miles). The airport’s terminal has eight positions for commercial aircraft. The airport has a general aviation building with 17 positions for small private airplanes and one position for helicopters. There are currently 24 commercial spaces operating at Huatulco Airport.
52
Tapachula International Airport
Tapachula International Airport (the “Tapachula Airport”) serves the city of Tapachula, which has a population of 393,867 and the state of Chiapas. In 2025, the airport served 519,105 passengers, substantially all of which were domestic. The airport’s passenger volume and results of operations are dependent on Mexican economic conditions since virtually all of its passengers are domestic. The airport’s most important point of origin and destination is Mexico City.
The airport has one runway with a length of 2,000 meters (1.3 miles). The airport has one terminal with two remote boarding positions and two contact positions. The airport also has a general aviation building for small private aircraft with 12 positions and one position for helicopters. There are currently 15 commercial spaces operating at Tapachula Airport.
Minatitlán International Airport
Minatitlán International Airport (the “Minatitlán Airport”) is located near the Gulf of Mexico, 13 kilometers (8.1 miles) from the city of Coatzacoalcos in the state of Veracruz, 11 kilometers (6.9 miles) from the city of Cosoleacaque and 26 kilometers (16.2 miles) from the city of Minatitlán. The metropolitan area comprised of these three cities has a population of 522,259. In 2025, the airport served 157,913 passengers. In 2025, the airport’s passenger traffic has increased due to the development of new projects in the region, such as the Interoceanic Corridor of Tehuantepec (Corredor Interoceánico del Istmo de Tehuantepec), a trade and transit route that connects the Pacific and Atlantic Oceans through a railway system. The airport’s passengers are principally domestic business people drawn by the area’s petrochemical and agriculture businesses. Because the airport’s passengers are primarily Mexican travelers, its passenger volume and results of operations are dependent on Mexican economic conditions. The airport’s most important point of origin and destination is Mexico City.
The airport has one runway with a length of 2,100 meters (1.3 miles). The airport’s main terminal has four remote parking positions. The airport has a general aviation building for small private airplanes with 11 boarding positions and two additional positions for helicopters. There are currently 11 commercial spaces operating at Minatitlán Airport.
Principal Air Traffic Customers of our Mexican Airports
As of December 31, 2025, 8 Mexican airlines and 62 international airlines operated flights at our nine airports (including airlines operating solely on a code share basis). A code share arrangement means that airlines that do not fly their own aircraft into our airports arrange to share the passenger space in another airline’s aircraft, with both airlines booking passengers through the same code.
VivaAerobus is the Mexican airline that operates the most flights at our Mexican airports. Among foreign airlines, American Airlines and United Airlines operate the greatest number of flights to and from our Mexican airports. In 2025, American Airlines and United Airlines accounted for 10.6% and 9.1%, respectively, of our revenues.
53
The following table sets forth our principal air traffic customers at our Mexican airports based on the percentage of regulated revenues they represented for the years ended December 31, 2023, 2024 and 2025:
Principal Air Traffic Customers of our Mexican Airports
|
|
Percentage of ASUR Mexico Revenues |
|
||||
|
|
Year ended December 31, |
|
||||
|
|
2023 |
|
2024 |
|
2025 |
|
Customer |
|
|
|
|
|
|
|
Aeroenlaces Nacionales, S. A. de C. V. (VivaAerobus) |
|
13.4 |
% |
14.3 |
% |
14.6 |
% |
American Airlines, Inc. |
|
8.5 |
% |
10.1 |
% |
10.6 |
% |
Concesionaria Vuela Compañía de Aviación SAPI de CV (Volaris) |
|
12.0 |
% |
10.1 |
% |
9.1 |
% |
United Airlines, Inc. |
|
7.5 |
% |
8.4 |
% |
9.1 |
% |
Aerovías de México, S. A. de C. V. (Aeromexico) |
|
7.8 |
% |
7.7 |
% |
7.7 |
% |
Delta Air Lines Inc. |
|
5.1 |
% |
5.5 |
% |
7.0 |
% |
Southwest Airlines Co. |
|
3.8 |
% |
4.6 |
% |
4.7 |
% |
Jetblue Airways Corporation |
|
2.9 |
% |
3.4 |
% |
3.6 |
% |
Westjet |
|
2.1 |
% |
2.7 |
% |
3.1 |
% |
Air Canada |
|
2.0 |
% |
2.4 |
% |
2.4 |
% |
Spirit Airlines, Inc. |
|
3.0 |
% |
2.5 |
% |
2.4 |
% |
Aerolitoral, S. A. de C. V. (Aeromexico Connect) |
|
2.9 |
% |
2.3 |
% |
2.3 |
% |
Other |
|
29.0 |
% |
26.0 |
% |
23.4 |
% |
Total |
|
100.0 |
% |
100.0 |
% |
100.0 |
% |
Seasonality
Our business is subject to seasonal fluctuations. In general, demand for air travel is typically higher during the summer months and during the winter holiday season, particularly in international markets, because there is more vacation travel during these periods. Our results of operations generally reflect this seasonality, but have also been impacted by numerous other factors that are not necessarily seasonal, including economic conditions, war or threat of war, weather, air traffic control delays and general economic conditions, as well as the other factors discussed above. As a result, our operating results for a quarterly period are not necessarily indicative of operating results for an entire year, and historical operating results are not necessarily indicative of future operating results.
Competition
Since our business is substantially dependent on international tourists, the principal competition to our Mexican airports is from competing tourist destinations. We believe that the main competitors to Cancún are vacation destinations in Mexico, such as Acapulco, Puerto Vallarta and Los Cabos, and elsewhere such as Florida, Cuba, Jamaica, the Dominican Republic and other Caribbean islands and Central American resorts. In March 2000, a new airport opened in Chichen Itza. This airport is operated by the state of Yucatán.
In addition, on May 11, 2010, the Mexican government announced the commencement of a bidding process for the construction of a new airport in the Mayan Riviera. Three companies, including ASUR, participated in the bidding process. On January 31, 2011, the COFECE issued an unfavorable decision regarding our participation in the bidding process. We disagreed with the decision and the views expressed by the COFECE and on March 11, 2011, we initiated legal proceedings to defend our right to participate in the bidding process. On May 20, 2011, we were notified by the Ministry of Infrastructure, Communications and Transportation, through the Mexican Civil Aviation Authority, that the international public bidding process was cancelled because none of the technical bids presented by the participants complied with the requirements established in the bidding documents. As a result, these legal proceedings were terminated. If a new bidding process is launched and we decide to participate, we may again be denied of such right.
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In October 2020, the Mexican President announced that as part of an effort to develop the southeast of Mexico, the Mexican Army would build and operate the Felipe Carrillo Puerto International Airport in the State of Quintana Roo. The Felipe Carrillo Puerto International Airport was officially inaugurated on December 1, 2023 and started operating international flights in late March 2024. We are unable to predict the effect that the Felipe Carrillo Puerto International Airport will have on our airport’s passenger traffic or operating results.
Additionally, in the context of the 2010 bidding process for the Felipe Carrillo Puerto International Airport, the Ministry of Infrastructure, Communications and Transportation undertook to adjust the master development plans and maximum rates for our airports within three months of the granting of a concession for such airport. We are unable to predict if, as a result of the inauguration of the Felipe Carrillo Puerto International Airport, the AFAC will undertake further revisions to our master development plans or maximum rates.
The airports in Mexico’s southeast region are operated as follows: (i) the Mexican Airport and Auxiliary Services Agency operates two airports, representing 2.09% of the total passenger traffic in the region; (ii) GAFSACOMM operates five airports, representing 4.03% of the total passenger traffic in the region; (iii) Grupo Aeroportuario de la Ciudad de México (“GACM”) operates one airport, representing 0.64% of the total passenger traffic in the region; and (iv) Grupo Aeroportuario de Chiapas (“GAC”) operates one airport, representing 3.75% of the total passenger traffic in the region.
LMM Airport
We, through Aeropuerto de Cancún, own a 60.0% interest in Aerostar, which was awarded the forty-year LMM Lease for the LMM Airport with an initial term beginning on February 27, 2013. The LMM Airport is located three miles outside of San Juan, Puerto Rico. It is the Caribbean’s largest and busiest airport, offering leisure and business travel to over 62 destinations. The LMM Airport serves the capital of San Juan and it is the primary gateway from Puerto Rico to international destinations and the mainland United States. The LMM Airport is ranked as the eighth largest medium hub facility and the thirty-ninth largest airport in the United States by the FAA based on number of enplanements, as of December 31, 2025. According to the PRPA, in 2023, 2024 and 2025, approximately 12.2 million passengers, 13.2 million passengers and 13.6 million passengers, respectively, traveled through the LMM Airport.
The LMM Airport site covers approximately 1,300 acres of land. It does not face competition from other forms of surface transportation given its island location. The largest competing airport on the island is nearly two hours away by car from San Juan. The LMM Airport is a short driving distance from the largest hotels in Puerto Rico.
The LMM Airport has an estimated capacity to handle up to 10 million enplanements annually, which is more than double its current usage. The LMM Airport is comprised of two runways and five terminals (Terminals A through E). Terminal A, which is the newest facility at the LMM Airport, opened in June 2012. Terminals B through E were constructed in various stages beginning with Terminals D and E in the late 1950s, then Terminal B in the 1980s and Terminal C in the 1990s. Terminal B was closed in November 2013 for remodeling, and we reopened the terminal during the fourth quarter of 2014. Terminal E is not currently in use and Terminal D is currently in use after renovations.
In 2017, LMM Airport opened eight commercial spaces. In 2018, eight commercial spaces were opened. In 2019, sixteen commercial spaces were opened. No commercial spaces were opened in 2020 and 2021. In 2022, 8 commercial spaces were opened. In 2023, 4 commercial spaces were opened. In 2024, 5 commercial spaces were opened. In 2025, 8 commercial spaces were opened.
Principal Air Traffic Customers of LMM Airport
As of December 31, 2025, 39 domestic and 19 international airlines were operating directly or through code-sharing arrangements, where two or more airlines share the same flight and each airline publishes and markets the flight under its own flight number, at LMM Airport. Some airlines serve both international and domestic destinations.
As of December 31, 2025, scheduled passenger air services at LMM Airport were provided by 23 airlines (together with regional affiliates and other partners).
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The following table sets forth our principal air traffic customers at LMM airport based on the percentage of Puerto Rico regulated revenues they represented for the year ended December 31, 2025.
Principal Air Traffic Customers of LMM Airport
|
|
Percentage of ASUR Puerto Rico Revenues |
|
||||
|
|
Year ended December 31, |
|
||||
|
|
2023 |
|
2024 |
|
2025 |
|
Customer |
|
|
|
|
|
|
|
JetBlue Airways |
|
24 |
% |
23 |
% |
26 |
% |
Frontier Airlines |
|
12 |
% |
14 |
% |
13 |
% |
American Airlines |
|
9 |
% |
9 |
% |
9 |
% |
Delta Air Lines Inc. |
|
8 |
% |
8 |
% |
8 |
% |
United Airlines |
|
7 |
% |
7 |
% |
8 |
% |
Southwest Airlines |
|
7 |
% |
7 |
% |
7 |
% |
Spirit Airlines |
|
12 |
% |
9 |
% |
6 |
% |
Iberia |
|
2 |
% |
2 |
% |
2 |
% |
United Parcel Services |
|
2 |
% |
2 |
% |
2 |
% |
Copa Airlines |
|
2 |
% |
2 |
% |
2 |
% |
Avianca |
|
1 |
% |
2 |
% |
2 |
% |
Other |
|
14 |
% |
15 |
% |
15 |
% |
Total |
|
100 |
% |
100 |
% |
100 |
% |
On September 20, 2017, Hurricane Maria struck Puerto Rico, causing extensive damage to the hotel and tourist infrastructure on the island, which led to sharply reduced air passenger traffic at LMM Airport, especially during the third and fourth quarters of 2017. During the third and fourth quarters of 2017, our passenger traffic in Puerto Rico decreased 15.8% relative to the same period in 2016. Our passenger traffic in Puerto Rico also decreased 0.4% in 2018 relative to 2017. Our passenger traffic in Puerto Rico increased 12.8% in 2019 relative to 2018.
The COVID-19 outbreak began in December 2019 and caused a significant reduction in passenger traffic at LMM Airport starting in March 2020. During the second, third and fourth quarters of 2020, our passenger traffic in Puerto Rico decreased 63.0% relative to the same period in 2019. During 2025, our passenger traffic in Puerto Rico increased 3.0% relative to 2024, and increased 11.9% relative to the same period in 2023.
In 2025, passengers at LMM Airport traveling to and from the mainland United States represented 87% of total passenger traffic. The LMM Airport’s passenger segments are primarily divided among leisure, visiting friends and relatives and business.
Aerostar’s Operating Agreement
In order to participate in the bidding process for the LMM Airport, Aeropuerto de Cancún entered into a joint venture with two of Oaktree’s infrastructure funds, Highstar Capital IV, L.P. (Highstar IV) and Highstar Aerostar Prism/IV-A Holdings, L.P. (Highstar Aerostar) and created Aerostar on March 14, 2012 for the purpose of leasing, developing, operating and managing the LMM Airport pursuant to the LMM Lease, the Airport Use Agreements and the terms of the contracts related to the LMM Airport assumed by Aerostar as of February 27, 2013.
On February 22, 2013, Aeropuerto de Cancún made a U.S.$100.0 million subordinated shareholder loan to Aerostar to partially fund the cost of acquiring the concession to operate the LMM Airport. This subordinated shareholder loan is now treated as an intercompany loan as we have consolidated Aerostar’s financial results into ASUR’s financial results. In April 2021, the remaining balance on this loan was paid, including capitalized interest.
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In May 2017, Highstar Aerostar sold a 10.0% interest in Aerostar to Aeropuerto de Cancún, pursuant to a Membership Interest Purchase Agreement. As a result of this transaction, Aeropuerto de Cancún holds a 60.0% equity interest in Aerostar. In addition, Highstar Aerostar sold its remaining 40.0% interest in Aerostar to PSP Investments, pursuant to a separate Membership Interest Purchase Agreement. Following the closing of both transactions, we now hold a 60.0% equity interest in Aerostar through Aeropuerto de Cancún, and PSP Investments holds a 40.0% equity interest through AviAlliance, a wholly-owned subsidiary of PSP Investments. Starting June 1, 2017, we began to consolidate Aerostar’s financial results into ASUR’s financial results. We intend to continue operating Aerostar and the LMM Airport in a manner substantially consistent with prior operations.
Concurrently with the closing of these transactions, ASUR (through Aeropuerto de Cancún), Aerostar and PSP Investments agreed to amend and revise the Operating Agreement for Aerostar.
The Amended and Restated Operating Agreement prohibits any member from directly or indirectly selling, exchanging, transferring, pledging, assigning or otherwise disposing of its membership units to any person, with the exception of transfers (i) between investment funds where, following such transfer, the ownership interests remain under common ownership management or control or (ii) of shares of any member or any parent of such member that is publicly traded on a national or international stock exchange, whether or not the transfer occurs on such stock exchange. Restrictions on transfers include, among others, that (i) the proposed transferee must execute and deliver to the management board an instrument agreeing to be bound by the terms of the Amended and Restated Operating Agreement, (ii) each other member has been consulted as to any transferee becoming a member of Aerostar, and that (iii) the transferee (a) may not be a strategic airport competitor of ASUR, (b) is not and has not been involved in corrupt activities, (c) has not publicly stated it is insolvent, (d) is able to pay its debts as they become due, (e) has not filed for or is subject to bankruptcy and (f) the transfer otherwise complies with the Amended and Restated Operating Agreement.
As a member of Aerostar, Aeropuerto de Cancún was required to make an initial capital contribution equivalent to (x) its proportionate share of the Leasehold Fee required under the LMM Lease, minus (y) any anticipated net cash proceeds of any debt financing incurred for the purpose of paying the Leasehold Fee, multiplied by (z) its membership percentage at least two business days prior to the Closing. Our Aeropuerto de Cancún membership percentage at that time was 50.0%. Under the Amended and Restated Operating Agreement, Aeropuerto de Cancún is not required to make any additional capital contributions to Aerostar unless it is required to do so by the Amended and Restated Operating Agreement or such additional capital contributions are approved by the operating board of managers by supermajority vote. Additionally, if (i) during the terms of either the LMM Lease or the Airport Use Agreements, Aerostar requires additional financing to meet its obligations under these agreements or to ensure that it is not insolvent, and Aerostar is not able to obtain financing on terms acceptable to the managers, or (ii) Aerostar’s President and Chief Financial Officer reasonably determine that within thirty (30) days Aerostar will not have enough working capital to meet its current expenses, and the managers fail to agree by supermajority vote (a supermajority defined as a majority consisting of at least one manager designated by each member) that additional capital contributions are required, then the members are required to make such additional capital contributions, in proportion to their respective membership percentages, without the need for further action by the managers. If the managers agree or the President and CFO determine that additional capital contributions are needed, then the members must make such contribution within seven business days after the managers make the determination. To date, no additional capital contributions have been required. Aeropuerto de Cancún is not entitled to receive interest on any capital contribution made to Aerostar.
Aeropuerto de Cancún is entitled to distributions in accordance with its membership percentage, subject to the adequacy of projected cash flows after giving effect to any distribution, any capital expenditure requirements, any financial covenants contained in any financing documents or other agreements to which Aerostar is a party and the need to maintain a reasonable level of working capital for Aerostar.
Aerostar’s property, business and affairs are managed by an operating board, and certain strategic decisions are left to a member’s board.
The operating board is comprised of eight managers, which are appointed by the members in proportion to their respective membership units. Each member that holds at least a 12.5% membership interest in Aerostar (each, an “Electing Member”) will be entitled to appoint, remove and replace one manager for each 12.5% interest it holds; any managers not elected by the Electing Members will be elected by a vote of the majority of membership interests. Accordingly, our Aeropuerto de Cancún is entitled to designate four members of the board of managers and, because it has the majority of membership interests, is able to elect a fifth member. AviAlliance is entitled to elect three members of the board of managers.
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All operating and management decisions relating to Aerostar, except for major decisions, require the approval of the majority of the votes of the managers. Senior officers, including the President, Chief Financial Officer, and Chief Operating Officer, may be removed or replaced at any time and for any reason by a majority of the board of managers, which we control. Certain major decisions require the supermajority vote of the operating board. These decisions include:
| ● | determining the amount of cash available for distributions and approving any distributions to be made to the members; |
| ● | amending in a material way the LMM Lease to operate the LMM Airport, the Airport Use Agreements governing the Signatory Airlines’ use or the LMM Airport financing documents to which Aerostar is a party; |
| ● | approving and implementing any incentive compensation, option or similar plan for officers or other employees of Aerostar; |
| ● | approving Aerostar’s annual budget or any deviations from the set budgets by more than 5.0%, and the capital expenditure budget, any single capital expenditure in the budget greater than U.S.$2.5 million and any single deviation from the capital expenditure budget in excess of the lesser of 5.0% or U.S.$500,000; |
| ● | material borrowings from third parties and material encumbrances; |
| ● | affiliate transactions; |
| ● | changing Aerostar’s corporate structure, business or business plans; |
| ● | settling any material litigation; |
| ● | sales of assets having a market value in excess of U.S.$50,000 or U.S.$500,000 in aggregate in any 12-month period; |
| ● | the determination of the contents of, and approval of, a final “strategy document” for the company’s capacity enhancement plan; |
| ● | making calls for additional capital contributions by the members; |
| ● | any transaction to merge or consolidate Aerostar with another Person, any transaction to sell, transfer, assign, convey or otherwise dispose of all or substantially all of the assets or rights of Aerostar or any transaction to purchase all or substantially all of the assets or rights of any Person by Aerostar; |
| ● | any proposal to liquidate or dissolve Aerostar or have it file for bankruptcy or initiate similar proceedings; |
| ● | raising capital rights issues; and |
| ● | commencing any legal proceedings on behalf of Aerostar against a member. |
The Amended and Restated Operating Agreement provides that if there is a deadlock between the managers or the member representatives on any issue to which agreement by a supermajority of managers is required, and the deadlock is not resolved within 30 days following the giving of written notice of the existence of the deadlock by one manager to another manager, any manager may refer the deadlock to the Chief Executive Officers of ASUR or AviAlliance for resolution. If such persons are unable to resolve the deadlock within 21 days of being requested to resolve the matter, then the matter will be referred to a non-binding mediation process. Finally, if the matter is not resolved through mediation within 45 days (unless ASUR and AviAlliance agree otherwise) after a mediator is appointed, then either member can submit the dispute to final and binding arbitration.
58
Our Mainland-U.S. Airports
Revenues at our mainland-U.S. airports relate to non-aeronautical services and are derived from commercial activities (namely, the leasing of space to retailers, restaurants, airlines and other commercial tenants). An airport’s revenues from commercial activities are largely dependent on passenger traffic, passengers’ level of spending, terminal design, among others. Revenues from commercial activities also depend substantially on the percentage of traffic represented by international passengers due to the revenues generated from duty-free shopping.
JFK Airport
JFK is located in Queens, New York, approximately 15 miles from downtown Manhattan, and serves as the sixth busiest airport in the U.S. with 62.6 million annual passengers and 205 nonstop destinations. It is the busiest airport in New York City and one of only six airports globally with nonstop service to all six inhabited continents, making it a key gateway to the U.S. New York City has the largest population and GDP in the U.S., is home to 45 Fortune 500 business headquarters, and attracted an estimated 64.7 million visitors in 2025.
We operate commercial spaces at two terminals at JFK: New Terminal One (“NTO”) and Terminal 8. We are the exclusive commercial developer and manager of NTO, which is currently in development and under construction, under a concession development agreement with JFK NTO LLC. Upon completion, NTO will be a 23-gate, state-of-the-art terminal with approximately 195,000 square feet of dining, retail and other concession spaces. The arrivals and departures hall and fourteen new gates are scheduled to open in 2026 and the remaining nine gates are estimated to open between 2029 and 2030. The terminal anticipates 119 subtenant units with confirmed airlines including Air France, Korean Air, KLM, Air China, Turkish Airlines and Etihad, among others.
We also operate commercial spaces at JFK Terminal 8 through JFK T8 Innovation Partners (the “JFK T8 JV”), a joint venture entity 81.4% owned by ASUR and 18.6% owned by the minority member Phoenix Infrascructure Group, under a concession agreement with American Airlines and a related Port Authority Privilege Permit. See “United States Regulatory Framework – Sources of Regulation” for additional description of the Privilege Permit. The terminal has 62 subtenant units across approximately 91,448 square feet.
In 2025, passenger traffic at Terminal 8 amounted to over 5.9 million passengers, of which 57% corresponded to international passengers and 43% to domestic.
LAX Airport
LAX is located in Los Angeles, California, approximately 15 miles from downtown Los Angeles, and serves as the fifth busiest airport in the U.S. with 76.6 million annual passengers and 162 direct destinations. It is the sole airport of scale serving the greater Los Angeles area and serves as a U.S. gateway for the Asia-Pacific region. The City of Los Angeles has the second largest population and GDP in the U.S., is home to 7 Fortune 500 business headquarters, and attracted 50.3 million visitors in 2025. We operate concessions for six terminals at LAX (Terminal 1, Terminal 2, Terminal 3, Terminal 6, Tom Bradley International Terminal, and TBIT West) under two Terminal Commercial Management agreements (“TCM”s): TCM 1 (Terminal 2, Tom Bradley International Terminal, and TBIT West) and TCM 2 (Terminal 1, Terminal 3, and Terminal 6). Our terminals feature 99 gates and 152 subtenant units across approximately 135,674 square feet. In 2025, total enplanements amounted to 24.3 million passengers, of which 44% corresponded to international passengers and 56% to domestic.
59
ORD Airport
ORD is located in Chicago, Illinois, approximately 18 miles from downtown Chicago, and serves as the busiest airport in the U.S. based on aircraft traffic with 34 million annual enplanements and 280 direct destinations. It is one of two key airports serving the Chicago area, but serves three times the amount of passengers of Chicago Midway International Airport. It is one of only six airports globally with nonstop service to all six of the inhabited continents making it a key gateway to the U.S. Chicago has the third largest population in the U.S., the third largest GDP in the U.S., is home to 15 Fortune 500 business headquarters, and attracted 55 million visitors in 2025. We operate commercial spaces at Terminal 5 at ORD under a concession agreement with the Chicago Department of Aviation (“CDA”). The terminal has 23 subtenant units across 41,600 square feet. In 2025, passenger traffic amounted to 5.3 million passengers, of which 56% corresponded to international passengers and 44% to domestic.
Our Colombian Airports
Our subsidiary Airplan, of which we own 100.0% of the capital stock, holds a concession to administer, operate, develop and maintain six airports in Colombia. The overall duration of the concession depends on the revenues generated by the Colombian airports. In particular, the concession remains in effect until the date on which any of the following events occur: (i) the regulated revenues generated are equal to expected regulated revenues, provided that the concession agreement has been in force for at least 24 years or (ii) the concession agreement has been in force for at least 40 years, regardless of whether the regulated revenues generated are equal to the expected revenues. If our Colombian airports generate regulated revenues that are equal to the expected revenues before the end of the 24-year period, the concession agreement will remain in effect until the end of such period. Thus, management considers such factors in determining the final year of the concession term, which is 2032; however, in accordance with legal guidelines, the concession term may be extended until 2048 as long as the aforementioned requirements established by the grantor are met. Our Colombian airports include José María Córdova International Airport in Rionegro and Enrique Olaya Herrera Airport in Medellín, Los Garzones Airport in Montería, Antonio Roldán Betancourt Airport in Carepa, El Caraño Airport in Quibdó, and Las Brujas Airport in Corozal.
Colombia
Our Colombian airports served approximately 14.9 million passengers in 2023, approximately 16.7 million passengers in 2024 and approximately 17.3 million passengers in 2025. The increase in passenger traffic during 2025 was mainly driven by an 11.8% and 1.8% increase in international and domestic passenger traffic, respectively, see “—Our Colombian Airports.”
Aeronautical Services
General
Pursuant to Airplan’s 2008 concession agreement, the revenues from our Colombian airports are divided into two categories: regulated and non-regulated. Regulated revenues consist of revenues derived from aeronautical services. Regulated revenues are regulated by the concession agreement managed by the National Infrastructure Agency (Agencia Nacional de Infraestructura), or ANI, and are listed in certain resolutions issued by the Special Administrative Unit of Civil Aeronautics (Unidad Administrativa Especial de Aeronáutica Civil), or Aerocivil. Each aeronautical service is subject to a maximum tariff, established by Aerocivil. In addition, Aerocivil establishes the methodology and mechanisms to update and collect the tariffs. All tariffs are updated annually based on the Colombian consumer price index(Índice de Precios al Consumidor), or the IPC, and a formula set forth in Aerocivil Resolution 04530 of 2007, as amended by Resolutions 02251 of 2016 and Resolution 031 of 2019 as well as in Aeronautical Regulation No.14 (Reglamento Aeronáutico de Colombia). The tariffs on aeronautical services related to international flights, including international passenger charges, are denominated in U.S. dollars and updated annually based on the change in the U.S. consumer price index and a formula set forth in Aerocivil Resolution 04530 of 2007. Our revenues from aeronautical services are primarily derived from passenger charges for the use of terminals, takeoff, landing and aircraft movement charges, charges for boarding bridges and aircraft parking charges.
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Passenger Charges
We collect a passenger charge for each departing passenger on an aircraft. Passenger charges are established and regulated by Aerocivil pursuant to Resolution 04530 of 2007. Furthermore, Resolution 02251 of 2016, established an additional charge for connectivity for the José María Córdova Airport. The additional charge relates to the construction and operation of the Oriente tunnel and complementary road developments which connect the metropolitan area of Aburra with that airport. The connectivity charge is of COP$5,000 for domestic flights, and U.S.$ 1.5 for international flights, and is not part of the regulated revenue assigned to the concessionaire.
Pursuant to Aerocivil regulations and the concession agreement, José María Córdova, Montería and Quibdó Airports apply the same domestic passenger charge, Enrique Olaya Herrera Airport has its own domestic passenger charge and Carepa and Corozal apply the same domestic passenger charge. José María Córdova and Enrique Olaya Herrera Airports apply the same international passenger charge. International passenger charges are U.S. dollar denominated. As of January 15, 2026, the charge for international passengers was U.S.$ 52 for the José María Córdova and Enrique Olaya Herrera Airports. Colombian domestic passenger charges are Colombian peso denominated. As of January 15, 2026, the charge for Colombian domestic passengers was Ps. 118.60, Ps. 150.17, Ps. 118.60, Ps. 59.30, Ps. 118.60, and Ps. 59.30 for the José María Córdova, Enrique Olaya Herrera, Montería, Carepa, Quibdó and Corozal Airports, respectively. These amounts have been translated at the rate of COP$ 209.10 per Ps. 1.00, which corresponds to the Colombian Peso Market Exchange Rate as of January 15, 2026.
Other Charges
We collect various charges from carriers for the use of our facilities by their aircraft. For each aircraft’s departure and arrival, we collect charges based on the rates set forth in Articles 5, 6 and 7 of Resolution 04530 of 2007, issued by Aerocivil. This resolution sets forth the maximum tariffs charged to domestic and international airlines for their respective flights. We also collect aircraft parking charges based on the time an aircraft is stationed at an airport’s gate or parking position. After three hours have elapsed from the moment an aircraft enters one of our Colombian airports, we collect an hourly parking charge, equal to 5.0% of the maximum tariff established by Aerocivil, for the entire time the aircraft is on our aprons. Airlines are also subject to charges for the connection of their aircraft to our terminals through a boarding bridge. Pursuant to Airplan’s concession agreement and Aerocivil regulations, we are required to provide (without additional charge) firefighting and rescue services at our airports. However, we collect charges from carriers for performing certain activities that require firefighting services,such as the use of firefighting cars for the supply of fuel and for cleaning fuel from platforms.
Non-aeronautical Services
General
Pursuant to Airplan’s concession agreement, revenues from non-aeronautical services are not regulated. Our revenues from non-aeronautical services are derived from commercial activities, automobile parking and ground transport fees.
Commercial Activities
Within our six Colombian airports, we leased 827 commercial premises through 462 contracts with local tenants as of December 31, 2025. Our most important tenants in terms of occupied space and revenue in 2025 were Duty Free Partners Colombia S.A.S., Mera Medellin S.A.S, Aerovías del Continente Americano S.A. (Avianca), Global Lounge Colombia S.A.S., Sapia CI S.A.S., Efectimedios S.A., Jetsmart Airlines S.A.S., Lasa S.A. Sociedad de Apoyo Aeronáutico S.A., Globoshops S.A.S. and Tampa Cargo S.A, among others.
61
Automobile Parking and Ground Transport
Each of our Colombian airports has public car parking facilities, which are provided either directly by us or by a third party. We provide public parking directly at Enrique Olaya Herrera Airport in Medellín, Los Garzones Airport in Montería, Antonio Roldán Betancourt Airport in Carepa, El Caraño Airport in Quibdó and the José María Córdova Airport in Rionegro. Pursuant to the concession agreement, we may charge third parties for the operation of our public parking and ground transport facilities; these charges are not regulated. We and the third party may negotiate freely on the price for the third party’s operation of the parking or ground transport facilities. For those of our airports that do assess parking fees, we or a third party charge a fee for each individual vehicle entering the airport. Although parking and ground transport services are not directly regulated, the fee charged to each individual vehicle that enters parking or ground transport facilities at our Colombian airports cannot exceed a certain limit established by city authorities. We do not charge parking fees at Corozal.
Airport Security
Pursuant to the Colombian concession agreement, Airplan is responsible for security at each of the terminals comprising the concession. Airplan is also obligated to coordinate with Aerocivil and other security authorities, including the national police, to adopt procedures and measures aimed at guaranteeing the safety of the facilities and of airport users.
Fuel
Fuel access for our Colombian airports and related vehicles and aircrafts is governed by the concession agreement. Fuel supply is a service that constitutes part of our non-regulated revenue. We are required to ensure the delivery of fuel to the aircrafts at our Colombian airports, including facilitating access between private suppliers and third parties, but we are not directly responsible for supplying the fuel. Fuel supply operations at our Colombian airports must comply with certain Colombian regulations, including Annex 6 of the International Civil Aviation Organization and Decree 1521 of 1998. Notwithstanding our role in facilitating access to fuel, we are not involved in commercial relationships among the airlines and third parties supplying the fuel. We may assign space on our airport premises to fuel suppliers in exchange for a monthly payment. Moreover, we may charge fuel suppliers a tariff on the volume of fuel provided to aircraft. We have agreements with fuel suppliers Terpel and Energizar.
In the event it is not feasible to reach an agreement with the current fuel suppliers of the corresponding airport, we may enter into an agreement with a third party that will be in charge of operating the fuel distribution system. Under such an agreement, the third-party operator makes a monthly payment to us in exchange for the space we grant it on our airport premises. The third party must also pay a tariff on the volume of fuel supplied to the aircrafts.
Aerocivil establishes safety guidelines and requirements with respect to fuel supply at our Colombian airports.
Our Colombian Airports
In 2025, our Colombian airports served a total of 17.3 million passengers, excluding passengers in transit and private aviation passengers. In 2025, José María Córdova International Airport accounted for 81.4% of our passenger traffic and 90.1% of our revenues, in each case from our Colombian airports.
José María Córdova International Airport in Rionegro and Enrique Olaya Herrera Airport in Medellín are designated as international airports under Colombian aeronautical regulations, which indicates that they are equipped to receive international flights and have customs and immigration facilities.
José María Córdova International Airport
José María Córdova International Airport is the second-busiest airport in Colombia in terms of passenger traffic. The airport is located in Rionegro, approximately 30 minutes from Medellín. Medellín has a population of approximately 2.5 million as of December 31, 2025, and is situated in a valley in the mountainous Antioquia department. The city is an urban center that is home to various businesses, museums, universities and parks. In addition, Medellín hosts an annual flower festival that attracts visitors.
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The airport’s most significant points of origin and destination are Bogotá, Cartagena, Santa Marta, Panama City, Cali, Barranquilla and Miami, among others. During 2025, approximately 14.1 million passengers traveled through José María Córdova International Airport, including 4.1 international passengers and 10.0 million domestic passengers.
The following table sets forth the number of international passengers (excluding passengers in transit and private aviation passengers) at José María Córdova International Airport by flight origin or destination.
|
|
International Passenger Traffic |
||||
|
|
Year ended December 31, |
||||
|
|
2023 |
|
2024 |
|
2025 |
|
|
(in thousands ) |
||||
City: |
|
|
|
|
|
|
Panama City |
|
659.9 |
|
732.3 |
|
857.9 |
Miami |
|
458.1 |
|
580.0 |
|
496.3 |
Fort Lauderdale |
|
238.8 |
|
298.9 |
|
310.1 |
Madrid |
|
216.3 |
|
265.2 |
|
287.6 |
Mexico City |
|
235.4 |
|
230.7 |
|
212.1 |
Lima |
|
123.6 |
|
220.7 |
|
278.9 |
Other |
|
1,043.2 |
|
1,319.0 |
|
1,635.0 |
Total |
|
2,975.3 |
|
3,646.8 |
|
4,077.9 |
The following table sets forth the number of Colombian domestic passengers (excluding passengers in transit and private aviation passengers) that traveled through José María Córdova International Airport by flight origin or destination.
|
|
Domestic Passenger Traffic |
||||
|
|
Year ended December 31, |
||||
|
|
2023 |
|
2024 |
|
2025 |
|
|
(in thousands) |
||||
City: |
|
|
|
|
|
|
Bogotá |
|
4,526.8 |
|
5,334.7 |
|
5,035.1 |
Cartagena |
|
1,033.4 |
|
1,266.2 |
|
1,486.3 |
Santa Marta |
|
513.6 |
|
758.5 |
|
891.2 |
Cali |
|
883.2 |
|
756.4 |
|
701.8 |
Barranquilla |
|
435.8 |
|
388.3 |
|
501.5 |
San Andrés |
|
319.6 |
|
356.6 |
|
461.5 |
Other |
|
1,092.1 |
|
896.9 |
|
938.4 |
Total |
|
8,804.5 |
|
9,757.6 |
|
10,015.8 |
The airport’s facilities include spaces for cargo operations. These spaces may be operated by third parties. José María Córdova International Airport currently has one runway, with a length of 3,440 meters (2.1 miles). José María Córdova International Airport was built in 1985 and currently has two terminals (passenger and cargo terminals).
There are currently 212 businesses operating in José María Córdova International Airport.
Enrique Olaya Herrera Airport
Enrique Olaya Herrera Airport also serves the city of Medellín, and was the city’s main airport until the opening of José María Córdova International Airport in 1985. The airport is conveniently located within Medellín city limits and serves domestic flights to cities such as Bogotá, Montería and Pereira. The airport’s primary points of origin and destination are Bogotá, Quibdó, Apartadó, and Montería. In 2025, approximately 1.2 million passengers traveled through Enrique Olaya Herrera Airport.
63
The following table sets forth the number of Colombian domestic passengers (excluding passengers in transit and private aviation passengers) that traveled through Enrique Olaya Herrera Airport by flight origin or destination.
|
|
Domestic Passenger Traffic |
||||
|
|
Year ended December 31, |
||||
|
|
2023 |
|
2024 |
|
2025 |
|
|
(in thousands) |
||||
City: |
|
|
|
|
|
|
Quibdó |
|
227.1 |
|
216.3 |
|
223.6 |
Bogotá |
|
190.3 |
|
196.8 |
|
240.6 |
Apartadó |
|
162.6 |
|
140.4 |
|
134.1 |
Montería |
|
92.2 |
|
89.8 |
|
86.6 |
Bahía Solano |
|
71.9 |
|
70.3 |
|
69.6 |
Pereira |
|
90.0 |
|
66.7 |
|
70.4 |
Nuqui |
|
31.2 |
|
51.4 |
|
55.1 |
Tolu |
|
67.4 |
|
49.4 |
|
45.0 |
Other |
|
310.1 |
|
330.7 |
|
268.6 |
Total |
|
1,242.8 |
|
1,211.8 |
|
1,193.6 |
The airport’s facilities include spaces for cargo operations. These spaces may be operated by third parties. The airport has one runway, with a length of 1,800 meters (1.1 miles). Enrique Olaya Herrera Airport was built in 1932.
There are currently 120 businesses operating at Enrique Olaya Herrera Airport.
Los Garzones Airport
Los Garzones Airport serves the city of Montería, Colombia. The city of Montería is located in the northern region of Colombia and has a population of 574,570 as of December 31, 2025. The city is located approximately 30 miles from the Caribbean Sea and has an inland seaport connected to the Caribbean Sea by the Sinú River. During 2025, 1.4 million passengers traveled through Los Garzones Airport, including only Colombian domestic passengers. The airport’s primary points of origin and destination are Bogotá and Medellin/Rionegro. The airport serves domestic flights to cities such as Bogotá, Medellín/Rionegro and Barranquilla.
The following table sets forth the number of Colombian domestic passengers (excluding passengers in transit and private aviation passengers) that traveled through Los Garzones Airport by flight origin or destination.
|
|
Domestic Passenger Traffic |
||||
|
|
Year ended December 31, |
||||
|
|
2023 |
|
2024 |
|
2025 |
|
|
(in thousands) |
||||
City: |
|
|
|
|
|
|
Bogotá |
|
884.6 |
|
1,114.5 |
|
1,007.7 |
Medellín/Rionegro |
|
384.9 |
|
332.5 |
|
421.9 |
Barranquilla |
|
16.1 |
|
14.5 |
|
4.2 |
Other |
|
2.5 |
|
2.6 |
|
0.8 |
Total |
|
1,288.1 |
|
1,464.1 |
|
1,434.6 |
The airport’s facilities include spaces for cargo operations. These spaces may be operated by third parties. The airport has one runway, with a length of 2,298 meters (1.4 miles). Los Garzones Airport was built in 1974.
There are currently 42 businesses operating at Los Garzones Airport.
64
Antonio Roldán Betancourt Airport
Antonio Roldán Betancourt Airport serves the city of Carepa, Colombia. The city of Carepa has a population of 50,952 as of December 31, 2025. During 2025, 183,409 passengers traveled through Antonio Roldán Betancourt Airport. The airport’s primary point of origin and destination is Medellín. The airport serves domestic flights to cities such as Medellín and Bogotá.
The following table sets forth the number of Colombian domestic passengers (excluding passengers in transit and private aviation passengers) that traveled through Antonio Roldán Betancourt Airport by flight origin or destination.
|
|
Domestic Passenger Traffic |
||||
|
|
Year ended December 31, |
||||
|
|
2023 |
|
2024 |
|
2025 |
|
|
(in thousands ) |
||||
City: |
|
|
|
|
|
|
Medellín |
|
169.5 |
|
154.6 |
|
146.7 |
Bogotá |
|
21.4 |
|
21.9 |
|
28.8 |
Quibdó |
|
5.3 |
|
3.1 |
|
6.3 |
Other |
|
8.9 |
|
1.2 |
|
1.6 |
Total |
|
205.1 |
|
180.8 |
|
183.4 |
The airport’s facilities include spaces for cargo operations. These spaces may be operated by third parties. The airport has one runway, with a length of 1,964 meters (1.2 miles). Antonio Roldán Betancourt Airport was built in 1989.
There are currently 14 businesses operating at Antonio Roldán Betancourt Airport.
El Caraño Airport
El Caraño Airport serves the city of Quibdó, Colombia, located on the Atrato River in the western region of the country. The city of Quibdó has a population of 141,778 as of December 31, 2025. During 2025, 362,612 passengers traveled through El Caraño Airport. The airport’s primary points of origin and destination are Medellín and Bogotá. The airport serves domestic flights to cities such as Medellín and Bogotá.
The following table sets forth the number of Colombian domestic passengers (excluding passengers in transit and private aviation passengers) that traveled through El Caraño Airport by flight origin or destination.
|
|
Domestic Passenger Traffic |
||||
|
|
Year ended December 31, |
||||
|
|
2023 |
|
2024 |
|
2025 |
|
|
( in thousands ) |
||||
City: |
|
|
|
|
|
|
Medellín |
|
238.5 |
|
230.1 |
|
235.8 |
Bogotá |
|
65.3 |
|
66.9 |
|
81.8 |
Bahía Solano |
|
15.4 |
|
16.0 |
|
15.5 |
Calí |
|
10.8 |
|
9.0 |
|
4.0 |
Other |
|
23.5 |
|
18.7 |
|
25.5 |
Total |
|
353.5 |
|
340.7 |
|
362.6 |
The airport’s facilities include spaces for cargo operations. These spaces may be operated by third parties. The airport has one runway, with a length of 1,800 meters (1.1 miles). El Caraño Airport was built in 1957.
There are currently 66 businesses operating at El Caraño Airport.
65
Las Brujas Airport
Las Brujas Airport serves the city of Corozal, Colombia. The city of Corozal has a population of 78,092 as of December 31, 2025. During 2025, 52,539 passengers traveled through Las Brujas Airport. The airport’s primary points of origin and destinations are Bogotá and Medellín. The airport serves domestic flights to cities such as Bogotá and Medellín.
The following table sets forth the number of Colombian domestic passengers (excluding passengers in transit and private aviation passengers) that traveled through Las Brujas Airport by flight origin or destination.
|
|
Domestic Passenger Traffic |
||||
|
|
Year ended December 31, |
||||
|
|
2023 |
|
2024 |
|
2025 |
|
|
( in thousands ) |
||||
City: |
|
|
|
|
|
|
Medellín |
|
11.4 |
|
47.1 |
|
20.5 |
Bogotá |
|
14.9 |
|
2.7 |
|
31.8 |
Other; |
|
0.1 |
|
0 |
|
0.2 |
Total |
|
26.4 |
|
49.8 |
|
52.5 |
The airport’s facilities include spaces for cargo operations. These spaces may be operated by third parties. The airport has one runway, with a length of 1,800 meters (1.1 miles). Las Brujas Airport was built in 1939.
There are currently 8 businesses operating at Las Brujas Airport.
Principal Air Traffic Customers of our Colombian Airports
As of December 31, 2025, 14 international and 10 Colombian airlines operated flights at our six Colombian airports.
On February 28, 2023 Viva Colombia suspended its operations due to financial distress and in June, 2023 it commenced a liquidation proceeding, which is ongoing.
Avianca is the Colombian airline that operates the most flights at our Colombian airports. Among foreign airlines, COPA and American Airlines operate the greatest number of flights to and from our Colombian airports. As of December 31, 2025, Spirit Airlines, Inc. was operating at José María Córdova International Airport and had not submitted any claim or objection regarding its outstanding receivables.
66
The following table sets forth our principal air traffic customers at our Colombian airports based on the percentage of revenues they represented for the year ended December 31, 2025.
Principal Air Traffic Customers at Our Colombian Airports
|
|
Percentage of ASUR Colombian Revenues |
|
||||
|
|
Year ended December 31, |
|
||||
|
|
2023 |
|
2024 |
|
2025 |
|
Customer |
|
|
|
|
|
|
|
Aerovías del Continente Americano (AVIANCA) |
|
30.1 |
% |
31.4 |
% |
31.3 |
% |
AeroRepública S.A. (COPA Airlines) |
|
23.5 |
% |
21.4 |
% |
23.0 |
% |
Aerovías de Integración Regional S.A. (LATAM) |
|
9.2 |
% |
8.6 |
% |
5.6 |
% |
American Airlines Inc. |
|
5.7 |
% |
6.0 |
% |
5.1 |
% |
Spirit Airlines Inc. |
|
6.1 |
% |
5.5 |
% |
4.3 |
% |
Empresa Aérea de Servicios y Facilitación Logística Integral (CLIC AIR) |
|
3.1 |
% |
2.8 |
% |
2.3 |
% |
JetBlue Airways Corporation |
|
2.1 |
% |
2.2 |
% |
3.4 |
% |
Satena |
|
1.4 |
% |
1.4 |
% |
1.5 |
% |
Fast Colombia SAS (Viva Colombia) |
|
3.4 |
% |
0.0 |
% |
0.0 |
% |
Others |
|
15.4 |
% |
20.7 |
% |
23.5 |
% |
|
|
100.0 |
% |
100.00 |
% |
100.00 |
% |
| (1) | TACA’s routes were absorbed by Avianca on February 21, 2019. |
Seasonality
Our business is subject to seasonal fluctuations. In general, demand for air travel in Colombia is typically higher during December, January and July. Our results of operations generally reflect this seasonality, but may also be impacted by other factors that are not necessarily seasonal, including economic conditions, the threat of violence or war, weather and air traffic control delays.
Competition
Our principal competition is from competing destinations in Colombia and Latin America. We believe that the main competitors to our José María Córdova International Airport in Rionegro are Bogotá and Cartagena, as well as other destinations in Latin America, such as Panama City and Lima.
MEXICAN REGULATORY FRAMEWORK
Applicable Law in Mexico
The following are the principal laws, regulations and instruments that govern our business and the operation of our Mexican airports:
| ● | the General Law of Commercial Corporations, enacted August 4, 1934, |
| ● | the Mexican Communications Law, enacted February 19, 1940, |
| ● | the Federal Labor Law, enacted April 1, 1970, |
| ● | the Customs Law, enacted December 15, 1995, |
| ● | the Value Added Tax Law, enacted December 29, 1978, |
| ● | the Mexican Federal Duties Law, enacted December 31, 1981, |
| ● | the Federal Tax Code, enacted December 31, 1981, |
| ● | the Regulations of the Federal Tax Code, enacted April 2, 2014, |
67
| ● | the Miscellaneous Resolutions issued by the tax authority, enacted December 30, 2024, |
| ● | the Mexican Civil Aviation Law, enacted May 12, 1995, |
| ● | the Social Security Law, enacted December 21, 1995, |
| ● | the Mexican Airport Law, enacted December 22, 1995, |
| ● | the Regulations to the Mexican Civil Aviation Law, enacted December 7, 1998, |
| ● | the concessions that entitle our subsidiaries to operate our nine airports, which were granted in 1998 and amended in 1999, |
| ● | the Regulations to the Mexican Airport Law, enacted February 17, 2000, |
| ● | the Mexican National Assets Law, enacted May 20, 2004, |
| ● | the Securities Market Law, enacted December 30, 2005, |
| ● | the Income Tax Law, enacted December 11, 2013, and |
| ● | the Federal Economic Competition Law, enacted May 23, 2014. |
The Mexican Airport Law and the regulations to the Mexican Airport Law establish the general framework regulating the construction, operation, maintenance and development of Mexican airport facilities. The Mexican Airport Law’s stated intent is to promote the expansion, development and modernization of Mexico’s airport infrastructure by encouraging investment and competition.
Under the Mexican Airport Law, a concession granted by the Ministry of Infrastructure, Communications and Transportation is required to construct, operate, maintain or develop a public service airport in Mexico. A concession generally must be granted pursuant to a public bidding process, except for: (i) concessions granted to (a) entities considered part of “the federal public administration” as defined under Mexican law and (b) private companies whose principal stockholder may be a state or municipal government; (ii) concessions granted to operators of private airports (who have operated privately for five or more years) wishing to begin operating their facilities as public service airports; and (iii) complementary concessions granted to existing concession holders. Complementary concessions may be granted only under certain limited circumstances, such as where an existing concession holder can demonstrate, among other things, that the award of the complementary concession is necessary to satisfy passenger demand. In 1998, the Ministry of Infrastructure, Communications and Transportation granted nine concessions to operate, maintain and develop the nine principal airports in Mexico’s southeast region to our subsidiaries. Because our subsidiaries were considered entities of the federal public administration at the time the concessions were granted, the concessions were awarded without a public bidding process. Each of our concessions was amended on March 19, 1999 in order, among other things, to incorporate each airport’s maximum rates and certain other terms as part of the concession.
The Mexican National Assets Law among other items establishes regulations relating to concessions on real property held in the public domain, including the airports that we operate. The Mexican National Assets Law requires concessionaires of real property held in the public domain that are used for administrative or other non-public purposes to pay a tax. In addition, the Mexican National Assets Law establishes grounds for revocation of concessions for failure to pay this tax.
On February 17, 2000, the regulations to the Mexican Airport Law were issued. Although we believe we are currently complying with the principal requirements of the Mexican Airport Law and its regulations, we are not in compliance with certain requirements under the regulations. These violations could result in fines or other sanctions being assessed by the Ministry of Infrastructure, Communications and Transportation, and are among the violations that could result in termination of a concession if they occur three or more times.
68
On May 23, 2014, the LFCE was enacted. The LFCE grants broad powers to the CNA, including the abilities to regulate essential facilities, investigate companies and eliminate barriers to competition in order to promote access to the market and order the divestment of assets. The LFCE also entrusts the CNA with the ability to conduct merger-control review and investigate anti-competitive behavior, and sets forth significant liabilities that may be incurred for violations of the law, increases the amount of fines that may be imposed for violations of the law, including fines. The CNA’s decisions may only be challenged through indirect appeal (amparo indirecto).
If the CNA determines that a specific service or product is an essential facility, it has the ability to regulate access conditions, prices, tariffs or technical conditions for or in connection with the relevant service or product. The CNA has previously determined that certain elements of the infrastructure at Mexico City International Airport may be considered essential facilities. As of the date of filing, the CNA has not made any determination that the services we render in our Mexican airports are considered an essential facility.
Amendments to the Federal Public Administration Law, the Mexican Army and Airforce Law the Mexican Airport Law and the Mexican Civil Aviation Law
On May 3, 2023, the Mexican government published a decree amending the Federal Public Administration Law, the Mexican Army and Airforce Law, the Mexican Airport Law and the Mexican Civil Aviation Law, introducing several changes such as (i) changing the administrative nature of the AFAC from a regulatory agency to a decentralized administrative entity (órgano administrativo desconcentrado) of the Ministry of Infrastructure, Communications, and Transportation; (ii) enhancing the regulatory and supervisory responsibilities of the AFAC over civil aviation matters, which were previously assigned to the SICT, including the issuance of technical and administrative regulations applicable to the master development programs; (iii) authorizing the Ministry of Infrastructure, Communications, and Transportation to grant, for an indefinite term, assignments to state-owned entities for the management, operation, and, if applicable, construction of airports; (iv) mandating additional obligations for concessionaires to notify the AFAC of changes in the board of directors, amendments to the bylaws, or any change in the corporate structure of the concessionaire; (v) modifying certain causes for revocation of concessions and establishing applicable sanctions for concessionaires not complying with flight schedules, timetables, or any other requirements; (vi) including a list of causes for revocation of permits granted to aerodromes; (vii) mandating permit holders and concessionaires of civil aerodromes to allow the use and provide airport services to military aircraft for search and rescue activities, for providing support in case of disasters and emergencies, and (viii) prohibiting cabotage practices of foreign airlines in Mexico.
Additionally, the amendments to the Mexican Airport Law and the Mexican Civil Aviation Law entrust the AFAC with greater authority over aviation matters, including (i) the ability to grant, extend, suspend, amend or revoke authorizations and permits, (ii) overseeing compliance with master development plans and concession terms, (iii) issuing air traffic rules, (iv) the ability to set the parameters for landing and take-off schedules of aircrafts in civilian aerodromes with congested air traffic, and (v) ordering the partial or total closure of civil aerodromes, when they do not fulfill safety conditions.
In August 2025, the Mexican government published a decree amending the Regulations to the Mexican Airport Law, introducing several changes to enhance transparency and operational discipline at saturated declared airports. The amendments empower the AFAC to issue updated general rules for slot allocation and define specific conduct that constitutes misuse of slots. The decree also requires public disclosure of hourly capacity and assigned slots and clarifies the conditions under which slots may be exchanged or transferred among carriers.
The amendments further formalize the independence and technical autonomy of the slot coordinator (coordinadora de horarios), designated by the AFAC, and establish a coordination and slot oversight subcommittee responsible for monitoring compliance, improving punctuality and addressing disputes. Additional reporting obligations and sanction mechanisms for attributable delays are introduced, particularly at saturated airports, while the AFAC retains authority to determine saturation conditions.
69
Amendment to the concession titles
On October 4, 2023, ASUR received a notification from the AFAC, a decentralized entity of the SICT, informing the amendment of the terms of the tariff base regulation set forth in Exhibit 7 of the concession titles dated June 29, 1998, as amended on March 19, 1999. Section 10.8 of the concession titles provides that any of the terms of the concession may be amended by mutual agreement between the SICT and ASUR in accordance with applicable law. Following unsuccessful negotiations between ASUR and the SICT, on October 19, 2023, the AFAC decided to unilaterally modify the terms of Exhibit 7 of the concession titles. The legal basis pursuant to which the Ministry of Infrastructure, Communications and Transportation justified the amendment were, among others, the recently amended Mexican Airport Law and its related regulatory decrees, as well as the AFAC internal regulations and operation manuals entrusting this entity with broad discretionary powers over airport regulation. The amendment was further justified by the Ministry of Infrastructure, Communications and Transportation on the grounds that, because revenues derived from airport concessions had substantially surpassed the Mexican consumer price index and transport index, such increase had adversely impacted domestic air transport demand and had negatively affected consumers.
Amendments to the Mexican Federal Duties Law
On November 13, 2023, the Mexican government published a decree amending the Mexican Federal Duties Law. As a result of such amendment, the concession fee that concession holders must pay for the use of federal airports, was increased from 5.0% to 9.0% of their gross annual regulated revenues derived from such use. The amendment became effective on January 1, 2024.
Amendments to the Securities Market Law
The Securities Market Law (Ley del Mercado de Valores) was amended effective as of December 29, 2023. These amendments are primarily focused on expediting the registration of securities for new market participants, and can be summarized as follows:
| ● | created a new legal category of issuer called “simplified issuer”, who will be subject to simplified registration processes and regulations. In this sense, simplified issuers are not subject to either the corporate legal framework nor the mandatory tender offers regulations applicable to publicly-traded companies (sociedades anónimas bursátiles). Securities by simplified issuers may only be offered to institutional and qualified investors, and simplified issuers will not fall under the supervision of the Mexican Banking and Securities Commission (Comisión Nacional Bancaria y de Valores, or “CNBV”), and neither their legal nor auditing advisors will be subject to the CNBV’s inspection and oversight powers. The registration process will be streamlined, requiring only a favorable opinion from the relevant Mexican stock exchange, and the prospectus and the offering documents of simplified issuers will not be subject to review by the CNBV; |
| ● | mandated to put in place specific regulations related to enhanced corporate practices and sustainable development, which will include provisions aimed at advancing gender equality. As of the date of this report, such regulations have not been enacted; |
| ● | lifted limitations on establishing restricted series of stock or series of stock with differentiated economic voting rights, the sole requirement being the disclosure of the relevant capital structure; |
| ● | lifted restrictions concerning the establishment of joint negotiation mechanisms (CPOs); |
| ● | lifted specific restrictions on measures aimed at limiting the acquisition of shares in public companies or takeover attempts. The new provisions are more flexible, as long as such provisions are approved by more than 80% of the outstanding shares of the company and are in compliance with the rules for mandatory tender offers; and |
| ● | granted enhanced flexibility to publicly traded companies regarding capital increases. If the shareholders meeting opts to delegate this authority to the board of directors, the board may approve capital stock increases, waive preemptive rights, and set disclosure exemptions for offerings exclusively targeting qualified and institutional investors. |
70
Role of the Ministry of Infrastructure, Communications and Transportation
The Ministry of Infrastructure, Communications and Transportation is the principal regulator of airports in Mexico and is authorized by the Mexican Airport Law to perform the following functions:
| ● | grant, modify and revoke concessions for the operation of airports, |
| ● | establish air transit rules and rules regulating take-off and landing schedules through the Mexican air traffic control authority, |
| ● | take all necessary action to create an efficient, competitive and non-discriminatory market for airport-related services, |
| ● | approve any transaction or transactions that directly or indirectly may result in a change of control of a concession holder, |
| ● | approve the master development plans prepared by each concession holder every five years, |
| ● | determine each airport’s maximum rates, |
| ● | approve any agreements entered into between a concession holder and a third party providing airport or complementary services at its airport, |
| ● | establish safety regulations, |
| ● | monitor airport facilities to determine their compliance with the Mexican Airport Law, other applicable laws and the terms of the concessions, and |
| ● | impose penalties for failure to observe and perform the rules under the Mexican Airport Law, the Mexican Airport Law regulations and the concessions. |
In addition, under the Mexican Organic Law of the Federal Public Administration, the Mexican Airport Law and the Mexican Civil Aviation Law, the Ministry of Infrastructure, Communications and Transportation is required to provide air traffic control, radio assistance and aeronautical communications at Mexico’s airports. The Ministry of Infrastructure, Communications and Transportation provides these services through SENEAM, the Mexican air traffic control authority, which is a division of the Ministry of Infrastructure, Communications and Transportation. Since 1978, the Mexican air traffic control authority has provided air traffic control for Mexico’s airports.
Scope of Mexican Concessions and General Obligations of Concession Holders
As authorized under the Mexican Airport Law, each of the concessions held by our subsidiaries is for an initial 50-year term from November 1, 1998. This initial term of each of our Mexican concessions may be renewed in one or more terms for up to an additional 50 years, subject to the concession holder’s acceptance of any new conditions imposed by the Ministry of Infrastructure, Communications and Transportation and to its compliance with the terms of its concession.
In order to renew a concession, the Ministry of Infrastructure, Communications and Transportation must obtain a favorable opinion from the Tax Ministry, which will analyze the profitability of each of the airports together with the costs and benefits of renewing the concession. Such analysis compares the cash revenues that may be generated from the use, benefit and exploitation of the public domain assets and services subject to the relevant concessions against the associated costs. The Tax Ministry must issue a resolution on the profitability of each airport within 30 days following receipt of all relevant information from the Ministry of Infrastructure, Communications and Transportation. If the Tax Ministry does not issue a resolution within the 30-day period, it will be deemed that the Tax Ministry issued favorable opinion. In addition, together with the profitability analysis, the Ministry of Infrastructure, Communications and Transportation shall submit a proposal for the concession fee applicable to the renewed period to the Tax Ministry.
71
The Mexican concessions held by our subsidiary concession holders allow the relevant concession holder, during the term of the concession, to: (i) operate, maintain and develop its airport and carry out any necessary construction in order to render airport, complementary and commercial services as provided under the Mexican Airport Law and the Mexican Airport Law regulations; and (ii) use and develop the assets that comprise the airport that is the subject of the concession (consisting of the airport’s real estate and improvements but excluding assets used in connection with fuel supply and storage). These assets are government-owned assets, subject to the Mexican National Assets Law. Upon expiration of a concession, these assets automatically revert to the Mexican government at no charge.
Substantially all of the contracts entered into by the Mexican Airport and Auxiliary Services Agency with respect to each of our airports have been assigned to the relevant concession holder for each airport. As part of this assignment, each concession holder agreed to indemnify the Mexican Airport and Auxiliary Services Agency for any loss suffered by the Mexican Airport and Auxiliary Services Agency due to the concession holder’s breach of its obligations under an assigned agreement.
Under the Mexican Federal Duties Law, Mexican concession holders are required to pay the Mexican government a concession fee based on its gross annual regulated revenues from the use of federal airports pursuant to the terms of its concession. Until December 31, 2023, this concession fee was set at a rate of 5.0%. Effective as of January 1, 2024, the concession fee was increased to 9.0%. Our Mexican concessions provide that we may request an amendment of our maximum rates if there is a change in this concession fee.
Mexican concession holders are required to obtain a certification for the facilities pursuant to the Mexican Airport Law and its regulations, as well as applicable national and international standards.
Mexican concession holders are required to provide airport security. If public order or national security is endangered, the competent federal authorities are authorized to act to protect the safety of aircraft, passengers, cargo, mail, installations and equipment.
Each Mexican concession holder and any third party providing services at an airport is required to carry specified insurance in amounts and covering specified risks, such as damage to persons and property at the airport, in each case as specified by the Ministry of Infrastructure, Communications and Transportation. To date, the Ministry of Infrastructure, Communications and Transportation has not specified the required amounts of insurance. We cannot assure you that we will not be required to obtain additional insurance once these amounts are specified.
We and our Mexican subsidiary concession holders are jointly and severally liable to the Ministry of Infrastructure, Communications and Transportation for the performance of all obligations under the concessions held by our subsidiaries. Each of our subsidiary concession holders is responsible for the performance of the obligations set forth in its concession, including the obligations arising from third-party contracts, as well as for any damages to the Mexican government-owned assets that they use and to third-party airport users. In the event of a breach of one concession, the Ministry of Infrastructure, Communications and Transportation is authorized to revoke all of the Mexican concessions held by our subsidiaries.
The shares of a Mexican concession holder and the rights under a concession may be subject to a lien only with the approval of the Ministry of Infrastructure, Communications and Transportation. No agreement documenting liens approved by the Ministry of Infrastructure, Communications and Transportation may allow the beneficiary of a pledge to become a concession holder under any circumstances.
A Mexican concession holder may not assign any of its rights or obligations under its concession without the authorization of the Ministry of Infrastructure, Communications and Transportation. The Ministry of Infrastructure, Communications and Transportation is authorized to consent to an assignment only if the proposed assignee satisfies the requirements to be a concession holder under the Mexican Airport Law, undertakes to comply with the obligations under the relevant concession and agrees to any other conditions that the Ministry may require.
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Classification of Services Provided at Mexican Airports
The Mexican Airport Law and the Mexican Airport Law regulations classify the services that may be rendered at an airport into the following three categories:
| ● | Airport Services. Airport services may be rendered only by the holder of a concession or a third party that has entered into an agreement with the concession holder to provide such services. These services include: —the use of airport runways, taxiways and aprons for landing, aircraft parking and departure, —the use of hangars, passenger walkways, transport buses and automobile parking facilities, —the provision of airport security services, rescue and firefighting services, ground traffic control, lighting and visual aids, —the general use of terminal space and other infrastructure by aircraft, passengers and cargo, and —the provision of access to an airport to third parties providing complementary services (as defined in the Mexican Airport Law) and third parties providing permanent ground transport services (such as taxis). |
| ● | Complementary Services. Complementary services may be rendered by an airline, by the airport operator or by a third party under agreements with airlines or the airport operator. These services include: —ramp and handling services, —passenger check-in, and —aircraft security, catering, cleaning, maintenance, repair and fuel supply and related activities that provide support to air carriers. |
| ● | Commercial Services. Commercial services involve services that are not considered essential to the operation of an airport or aircraft, and include: —the leasing of space to retailers, restaurants and banks and —advertising. |
Third parties rendering airport, complementary or commercial services are required to do so pursuant to a written agreement with the relevant concession holder. All agreements relating to airport or complementary services are required to be approved by the Ministry of Infrastructure, Communications and Transportation. The Mexican Airport Law provides that the concession holder is jointly liable with these third parties for compliance with the terms of the relevant concession with respect to the services provided by such third parties. All third-party service providers of complementary services are required to be corporations incorporated under Mexican law.
Airport and complementary services are required to be provided to all users in a uniform and regular manner, without discrimination as to quality, access or price. Mexican concession holders are required to provide airport and complementary services on a priority basis to military aircraft, disaster support aircraft and aircraft experiencing emergencies. Airport and complementary services are required to be provided at no cost to military aircraft and aircraft performing national security activities.
In the event of force majeure, the Ministry of Infrastructure, Communications and Transportation may impose additional regulations governing the provision of services at airports, but only to the extent necessary to address the force majeure event. The Mexican Airport Law allows the airport administrator appointed by a concession holder to suspend the provision of airport services in the event of force majeure.
A Mexican concession holder is also required to take all necessary measures to create a competitive market for complementary services. A concession holder may not limit the number of providers of complementary services in its airport, except in instances where space, efficiency and/or safety warrant such limitation. If a concession holder denies entry to any complementary services provider, such service provider may file a complaint before the Ministry of Infrastructure, Communications and Transportation. The Ministry of Infrastructure, Communications and Transportation shall determine within 60 days of the filing of the complaint whether entry of the service provider into the airport shall be authorized.
Master Development Plans
Mexican concession holders are also required to submit to the Ministry of Infrastructure, Communications and Transportation a master development plan describing, among other things, the concession holder’s construction and maintenance plans.
Each master development plan is for a 15-year period and is required to be updated every five years and resubmitted for approval to the Ministry of Infrastructure, Communications and Transportation. Upon such approval, the master development plan is deemed to constitute a part of the relevant concession. Any major construction, renovation or expansion of an airport may only be made pursuant to a concession holder’s master development plan or upon approval by the Ministry of Infrastructure, Communications and Transportation. Information required to be presented in the master development plan includes:
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| ● | airport growth and development expectancies, |
| ● | 15-year projections for air traffic demand (including passenger, cargo and operations), |
| ● | construction, conservation, maintenance, expansion and modernization programs for infrastructure, facilities and equipment, |
| ● | five-year detailed investment program and planned major investments for the following 10 years, |
| ● | probable sources of financing, |
| ● | descriptive airport plans, and |
| ● | environmental protection measures. |
The Mexican concessions require the concession holder to engage recognized independent consultants to conduct polls among airport users with respect to current and expected quality standards, and to prepare air traffic projections and investment requirements. The concession holder must submit a draft of the master development plan to airport users for their review and comments. Further, the concession holder must submit the master development plan to the Ministry of Infrastructure, Communications and Transportation prior to the expiration of the five-year term. The Ministry of Infrastructure, Communications and Transportation may request additional information or clarification as well as seek further comments from airport users.
Changes to a master development plan and investment program require the approval of the Ministry of Infrastructure, Communications and Transportation, except for emergency repairs and minor works that do not adversely affect an airport’s operations.
In December 2023, the SICT approved each of our current updated master development plans. These plans are in effect from January 1, 2024 to December 31, 2028.
The following table sets forth our committed investments for the regulated part of our business for each Mexican airport pursuant to the terms of our current master development plans for the periods presented. Even though we have committed to invest the amounts in the table, those amounts could be lower or higher depending on the cost of each project.
Committed Investments
|
|
Committed Investments |
||||||||||
|
|
Year ended December 31, |
||||||||||
Airport |
|
2024 |
|
2025 |
|
2026 |
|
2027 |
|
2028 |
|
Totals |
|
|
(millions of constant Mexican pesos as of December 31,2025)(1) |
||||||||||
Cancún |
|
2,928.0 |
|
5,013.5 |
|
6,136.4 |
|
4,308.3 |
|
5,578.0 |
|
23,964.2 |
Cozumel |
|
136.0 |
|
371.8 |
|
187.7 |
|
33.1 |
|
62.5 |
|
791.1 |
Huatulco |
|
113.4 |
|
225.1 |
|
95.6 |
|
133.9 |
|
341.8 |
|
909.8 |
Mérida |
|
234.4 |
|
202.5 |
|
167.0 |
|
591.5 |
|
925.0 |
|
2,120.4 |
Minatitlán |
|
86.0 |
|
83.0 |
|
44.4 |
|
16.9 |
|
27.6 |
|
257.9 |
Oaxaca |
|
213.8 |
|
607.4 |
|
865.6 |
|
480.7 |
|
198.7 |
|
2,366.2 |
Tapachula |
|
40.7 |
|
105.4 |
|
43.1 |
|
19.1 |
|
54.3 |
|
262.6 |
Veracruz |
|
132.5 |
|
164.9 |
|
73.3 |
|
27.2 |
|
82.6 |
|
480.5 |
Villahermosa |
|
102.7 |
|
180.7 |
|
291.2 |
|
28.0 |
|
41.2 |
|
643.8 |
Total |
|
3,987.5 |
|
6,954.3 |
|
7,904.3 |
|
5,638.7 |
|
7,311.7 |
|
31,796.5 |
(1)Based on the Mexican construction price index in accordance with the terms of our master development plan.
Note: As of December 31, 2025, we have Ps. 6,961.5 million (which is included in the investment commitments for this period shown above).
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The following table sets forth our committed and indicative investments for the regulated part of our business for each Mexican airport pursuant to the terms of our current master development plans for the periods presented.
|
|
Committed Investments |
|
Indicative Investments |
||
|
|
January 1, 2024- |
|
January 1, 2029- |
|
January 1, 2034- |
Airport |
|
December 31, 2028 |
|
December 31, 2033 |
|
December 31, 2038 |
|
|
(millions of constant Mexican pesos as of December 31,2025)(1) |
||||
Cancún |
|
23,964.2 |
|
4,855.2 |
|
6,520.8 |
Cozumel |
|
791.1 |
|
314.0 |
|
415.8 |
Huatulco |
|
909.8 |
|
273.6 |
|
397.0 |
Mérida |
|
2,120.4 |
|
878.2 |
|
873.0 |
Minatitlán |
|
257.9 |
|
139.4 |
|
127.2 |
Oaxaca |
|
2,366.2 |
|
230.7 |
|
453.8 |
Tapachula |
|
262.6 |
|
240.0 |
|
171.1 |
Veracruz |
|
480.5 |
|
684.4 |
|
582.6 |
Villahermosa |
|
643.8 |
|
329.8 |
|
314.0 |
Total |
|
31,796.5 |
|
7,945.3 |
|
9,855.3 |
(1)Based on the Mexican construction price index in accordance with the terms of our master development plan.
Note: As of December 31, 2025, we have invested Ps. 6,961.5 million (which is included in the investment commitments for this period shown above).
Price Regulation
The Mexican Airport Law provides that the AFAC, a decentralized body of the Ministry of Infrastructure, Communications and Transportation may establish price regulations for services for which the CNA determines that a competitive market does not exist. On March 9, 1999, the COFECE issued a ruling stating that competitive markets generally do not exist for airport services and airport access provided to third parties rendering complementary services. This ruling authorized the AFAC, a decentralized body of the Ministry of Infrastructure, Communications and Transportation to establish regulations governing the prices that may be charged for airport services and access fees that may be charged to providers of complementary services in our airports. On March 19, 1999, a new regulation, the Rate Regulation, was incorporated within the terms of each of our Mexican concessions. The Rate Regulation, which became effective May 1, 1999, establishes the annual maximum rates for each of our concession holders, which is the maximum amount of revenue per workload unit (one passenger or 100 kilograms (220 pounds) of cargo) in a given year that the concession holder may earn at its airports from all regulated revenue sources. On October 4, 2023, the AFAC decided to amend with immediate effect the terms of the tariff base regulation set forth in Exhibit 7 of ASUR’s concession titles, which was further modified on October 19, 2023. See “Item 3. Key Information—Risk Factors— Risks Related to the Regulation of Our Business— The price regulatory system applicable to our Mexican airports imposes maximum rates for each airport—The price regulatory system does not guarantee that our consolidated results of operations, or that the results of operations of any Mexican airport, will be profitable.”
Regulated Revenues
The Rate Regulation, as amended by the Amended Rate Regulation, establishes a “dual-till” system of price regulation under which certain of our revenues, such as Mexican passenger charges, landing charges, aircraft parking charges and access fees from third parties providing complementary services at our airports are regulated, while the revenues that we earn from commercial activities in terminals at our Mexican airports, such as the leasing of space to duty-free stores, retailers, restaurants, car rental companies and banks, are not regulated.
The Amended Rate Regulation provides that the following sources of revenues are regulated under this “dual-till” system:
| ● | revenues from airport services (as defined under the Mexican Airport Law), other than automobile parking, and |
| ● | access fees earned from third parties providing complementary services, other than those related to the establishment of administrative quarters that the AFAC determines to be non-essential. |
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Other sources of revenues at our Mexican airports are not regulated. 61.5%, 62.1% and 52.7% of our Mexican revenues in 2023, 2024 and 2025, respectively, were derived from regulated sources of revenue.
Each Mexican concession holder is entitled to determine the prices charged for each regulated service and is required to register such prices with the AFAC. Once registered, those prices are deemed part of its concession, and may only be changed every six months or earlier if there has been a cumulative increase of at least 5.0% in the Mexican producer price index (excluding petroleum) as published by the Mexican Central Bank since the date of the last adjustment and in other specific circumstances. See “Item 4. Information on the Company—Mexican Regulatory Framework—Price Regulation—Special Adjustments to Maximum Rates.”
On October 4, 2023, ASUR received a notification from the AFAC, a decentralized entity of the SICT, informing the amendment of the terms of the tariff base regulation set forth in Exhibit 7 of the concession titles dated June 29, 1998, as amended on March 19, 1999. Section 10.8 of the concession titles provides that any of the terms of the concession may be amended by mutual agreement between the SICT and ASUR in accordance with applicable law. Following unsuccessful negotiations between ASUR and the SICT, on October 19, 2023, the AFAC decided to unilaterally modify the terms of Exhibit 7 of the concession titles, including the discount rate or rate of return, applicable to the calculation of the Maximum Rate.
Current Maximum Rates
Each Mexican airport’s maximum rates from January 1, 2024, to December 31, 2028, were set by the AFAC, a decentralized body of the Ministry of Infrastructure, Communications and Transportation in December 2023. On October 4, 2023, the AFAC decided to amend with immediate effect the terms of the tariff base regulation set forth in Exhibit 7 of ASUR’s concession titles, which was further amended on October 19, 2023. See “Item 3. Key Information—Risk Factors— Risks Related to the Regulation of Our Business— The price regulatory system applicable to our Mexican airports imposes maximum rates for each airport—The price regulatory system does not guarantee that our consolidated results of operations, or that the results of operations of any Mexican airport, will be profitable.”
The following table sets forth the maximum rates for each of our Mexican airports for the periods indicated. These maximum rates are subject to adjustment only under the limited circumstances described below under “Special Adjustments to Maximum Rates.”
|
|
Maximum Rates(1)(2) |
||||||||
|
|
Year ended December 31, |
||||||||
Airport |
|
2024 |
|
2025 |
|
2026 |
|
2027 |
|
2028 |
Cancún |
|
366.41 |
|
363.48 |
|
360.58 |
|
357.69 |
|
354.82 |
Cozumel |
|
469.97 |
|
466.21 |
|
462.48 |
|
458.78 |
|
455.11 |
Huatulco |
|
503.42 |
|
499.39 |
|
495.40 |
|
491.43 |
|
487.50 |
Mérida |
|
312.20 |
|
309.70 |
|
307.23 |
|
304.77 |
|
302.33 |
Minatitlán |
|
553.72 |
|
549.30 |
|
544.90 |
|
540.53 |
|
536.21 |
Oaxaca |
|
369.41 |
|
366.45 |
|
363.52 |
|
360.61 |
|
357.72 |
Tapachula |
|
304.90 |
|
302.46 |
|
300.05 |
|
297.65 |
|
295.27 |
Veracruz |
|
293.51 |
|
291.17 |
|
288.84 |
|
286.53 |
|
284.23 |
Villahermosa |
|
329.90 |
|
327.27 |
|
324.64 |
|
322.05 |
|
319.47 |
(1) |
Expressed in adjusted Mexican pesos as of December 31, 2025 based on the Mexican producer price index (excluding petroleum). |
(2) |
Our Mexican concessions provide that each airport’s maximum rate may be adjusted annually to take account of projected improvements in efficiency. For the five-year period ending December 31, 2028, the maximum rates applicable to our airports reflect a projected annual efficiency improvement of 0.80%. |
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Methodology For Determining Future Maximum Rates
The Amended Rate Regulation provides that each Mexican airport’s annual maximum rates are to be determined in five-year intervals based on the following variables:
| ● | Projections for the 15-year period of workload units (each of which is equivalent to one passenger or 100 kilograms (220 pounds) of cargo), operating costs and expenses (excluding amortization and depreciation) related to services subject to price regulation. |
| ● | Projections for the 15-year period of capital expenditures related to regulated services, based on air traffic forecasts and quality of standards for services to be derived from the master development plans. |
| ● | Reference values, which were established in the Mexican concessions and are designed to reflect the net present value of the regulated revenues minus the corresponding regulated operating costs and expenses (excluding amortization and depreciation), and capital expenditures related to the provision of regulated services plus a terminal value. |
| ● | A discount rate equal to the risk-free rate of return plus a risk premium, in each case to be determined pursuant to the terms of the concession titles. |
Our Mexican concessions specify a discounted cash flow formula to be used to determine the maximum rates that, given the projected pre-tax earnings, capital expenditures and discount rate, would result in a net present value equal to the reference values established in connection with the last determination of maximum rates.
The following were the main changes to the calculation of the discount rate introduced in the Amended Base Regulation:
| ● | the cost of capital metric in the discount rate formula was replaced with weighted-average cost of capital, |
| ● | the risk-free rate of return is now determined based on the five-year average yield of long-term Mexican government debt securities issued in the international markets with maturities ranging from five to 30 years (prior to the Amended Base Regulation, such rate was determined based on the 24-month average yield of long-term Mexican government debt securities with maturities falling close to the termination of the concession), |
| ● | the risk premium is now determined based on Mexico’s risk premium calculated by Aswath Damodaran for the last five years (prior to the Amended Base Regulation, such premium was determined by the AFAC based on the inherent risk of the airport business in Mexico), and |
| ● | levels and cost of debt disclosed by each airport group during the last five years are now included in the discount rate formula (previously, only cost of equity was considered). |
Our Mexican concessions provide that each airport’s maximum rate may be adjusted annually to take account of projected improvements in efficiency. For the period beginning January 1, 2024 and ending December 31, 2028, the maximum rates applicable to our airports reflect a projected annual efficiency improvement of 0.80%.
The Mexican concessions provide that each Mexican airport’s reference values, discount rate and the other variables used in calculating the maximum rates are not guarantees and do not in any manner represent an undertaking by the AFAC or the Mexican government as to the performance of any concession holder. To the extent that the revenues from services subject to price regulation in any period are less than an airport’s maximum rate multiplied by the workload units processed for such period, no adjustment will be made to compensate for this shortfall.
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To the extent that such aggregate revenues per workload unit exceed the relevant maximum rate, the AFAC may proportionately reduce the maximum rate in the immediately subsequent year and assess penalties equivalent to 1,000 to 50,000 times the daily value of the Unit of Measure and Update. As of February 1, 2026, the daily value of the Unit of Measure and Update was Ps. 117.31. As a result, the maximum penalty as of such date could have been Ps. 5.9 million (U.S.$ 325,758). In the event that a Mexican concession holder fails to comply with certain terms of its concession, or violates certain other terms of its concession after having been sanctioned at least three times for violation of that concession, the Ministry of Infrastructure, Communications and Transportation is entitled to revoke its concession. We would face similar sanctions for any violations of the Mexican Airport Law or its regulations. A full discussion of circumstances that might lead to a revocation of a concession may be found below at “Penalties and Termination and Revocation of Concessions and Concession Assets.”
Currently, our calculation of workload units (one passenger or 100 kilograms (220 pounds)) of cargo does not include transit passengers. There is a possibility that in the future our workload units may include transit passengers and the AFAC will decrease our maximum rates to reflect this higher passenger base. Although there can be no assurance, we do not expect this change to occur in the short term or have a material adverse effect on our revenues if and when it happens.
Special Adjustments to Maximum Rates
Once determined, each Mexican airport’s maximum rates are subject to special adjustment only under the following circumstances:
| ● | Change in law or natural disasters. A concession holder may request an adjustment in its maximum rates if a change in law with respect to quality standards or safety and environmental protection results in operating costs or capital expenditures that were not contemplated when its maximum rates were determined. In addition, a concession holder may also request an adjustment in its maximum rates if a natural disaster affects demand or requires unanticipated capital expenditures. There can be no assurance that any request on these grounds would be approved, or that we would make such a request. |
| ● | Macroeconomic conditions. A concession holder may also request an adjustment in its maximum rates if, as a result of a decrease of at least 5.0% in Mexican gross domestic product in a 12-month period, the workload units processed in the concession holder’s airport are less than that projected when its maximum rates were determined. To grant an adjustment under these circumstances, the AFAC must have already allowed the concession holder to decrease its projected capital improvements as a result of the decline in passenger traffic volume. There can be no assurance that any request on these grounds would be approved, or that we would make such a request. |
| ● | Increase in concession fee under Mexican Federal Duties Law. An increase in duty payable by a concession holder under the Mexican Federal Duties Law entitles the concession holder to request an adjustment in its maximum rates. There can be no assurance that any request on these grounds would be approved. |
| ● | Failure to make required investments or improvements. The AFAC annually is required to review each concession holder’s compliance with its master development plan (including the provision of services and the making of capital investments). If a concession holder fails to satisfy any of the investment commitments contained in its master development plan, the AFAC is entitled to decrease the concession holder’s maximum rates and assess penalties. |
| ● | Excess revenues. In the event that revenues subject to price regulation per workload unit in any year exceed the applicable maximum rate, the maximum rate for the following year will be decreased to compensate airport users for overpayment in the previous year. Under these circumstances, the AFAC is also entitled to assess penalties against the concession holder. |
In addition, the AFAC has committed to review and adjust Cancún’s maximum rate within three months from the granting of a concession to operate the Mayan Riviera Airport to reflect changes in projected traffic levels at our airports. See “Item. 4 Information on the Company—Mexican Regulatory Framework—Master Development Plans.”
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Ownership Commitments and Restrictions
The Mexican concessions require us to retain a 51.0% direct ownership interest in each of our nine concession holders throughout the term of these concessions. Any acquisition by us or one of our concession holders of any additional Mexican airport concessions or of a beneficial interest of 30.0% or more of another concession holder requires the consent of the CNA. In addition, the Mexican concessions prohibit us and our concession holders, collectively or individually, from acquiring more than one concession for the operation of an airport along each of Mexico’s southern and northern borders.
Air carriers are prohibited under the Mexican Airport Law from controlling or beneficially owning 5.0% or more of the shares of a holder of an airport concession. We, and each of our subsidiaries, are similarly restricted from owning 5.0% or more of the shares of any air carrier.
Foreign governments acting in a sovereign capacity are prohibited from owning any direct or indirect equity interest in a holder of a Mexican airport concession.
Reporting, Information and Consent Requirements
Mexican concession holders and third parties providing services at Mexican airports are required to provide the AFAC access to all airport facilities and information relating to an airport’s construction, operation, maintenance and development. Each concession holder is obligated to maintain statistical records of operations and air traffic movements in its airport and to provide the Ministry of Infrastructure, Communications and Transportation with any information that it may request. Each concession holder is also required to publish its annual audited consolidated financial statements in a principal Mexican newspaper within the first four months of each year.
The Mexican Airport Law provides that any person or group directly or indirectly acquiring control of a concession holder is required to obtain the consent of the Ministry of Infrastructure, Communications and Transportation to such control acquisition. For purposes of this requirement, control is deemed to be acquired in the following circumstances:
| ● | if a person acquires 35.0% or more of the shares of a concession holder, |
| ● | if a person has the ability to control the outcome of meetings of the stockholders of a concession holder, |
| ● | if a person has the ability to appoint a majority of the members of the Board of Directors of a concession holder, and |
| ● | if a person by any other means acquires control of an airport. |
Under the regulations to the Mexican Airport Law, any company acquiring control of a concession holder is deemed to be jointly and severally liable with the concession holder for the performance of the terms and conditions of the concession.
The Ministry of Infrastructure, Communications and Transportation is required to be notified upon any change in a concession holder’s chief executive officer, Board of Directors or management. A concession holder is also required to notify the Ministry of Infrastructure, Communications and Transportation at least ninety days prior to the adoption of any amendment to its bylaws concerning the dissolution, corporate purpose, merger, transformation or spin-off of the concession holder.
Penalties and Termination and Revocation of Mexican Concessions and Concession Assets
The Mexican Airport Law provides that sanctions of up to 400,000 times the daily value of the Unit of Measure and Update may be assessed for failures to comply with the terms of a concession. As of February 1, 2026, the daily value of the Unit of Measure and Update was Ps. 117.31. As a result, the maximum penalty as of such date could have been Ps. 46.9 million (U.S.$ 2.6 million).
79
Under the Mexican Airport Law and the terms of the Mexican concessions, a concession may be terminated upon any of the following events:
| ● | expiration of its term, or any term extension thereof, |
| ● | surrender by the concession holder, |
| ● | revocation of the concession by the Ministry of Infrastructure, Communications and Transportation, |
| ● | reversion (rescate) of the Mexican government-owned assets that are the subject of the concession (principally real estate, improvements and other infrastructure), |
| ● | inability to achieve the purpose of the concession, except in the event of force majeure, or |
| ● | dissolution, liquidation or bankruptcy of the concession holder. |
The Mexican National Assets Law, published in the Mexican Official Gazette on May 20, 2004, among other items, establishes regulations relating to concessions on real property held in the public domain, including the airports that we operate. The Mexican National Assets Law requires concessionaires of real property held in the public domain that are used for administrative or other non-public purposes to pay a tax. In addition, the Mexican National Assets Law establishes new grounds for revocation of concessions for failure to pay this tax.
A Mexican concession’s termination does not exempt the concession holder from liability in connection with the obligations acquired during the term of the concession.
Upon termination, whether as a result of expiration or revocation, the public domain assets (including real estate and fixtures) that were the subject of the concession automatically revert to the Mexican government at no cost. In addition, upon termination the Mexican federal government has a preemptive right to acquire privately-owned assets used by the concession holder to provide services under the concession at prices determined by expert appraisers appointed by the Ministry of Infrastructure, Communications and Transportation. Alternatively, the Mexican government may elect to lease these assets for up to five years at fair market rates as determined by expert appraisers appointed by the Mexican government and the concession holder. In the event of a discrepancy between appraisals, a third expert appraiser must be jointly appointed by the Mexican government and the concession holder. If the concession holder does not appoint an expert appraiser, or if such appraiser fails to determine a price, the determination of the appraiser appointed by the Mexican government will be conclusive. If the Mexican government chooses to lease the assets, it may thereafter purchase the assets at their fair market value, as determined by an expert appraiser jointly appointed by the Mexican government and the concession holder.
A Mexican concession may be revoked by the Ministry of Infrastructure, Communications and Transportation under certain conditions, including:
| ● | the failure by a concession holder to begin operating, maintaining and developing an airport pursuant to the terms established in the concession, |
| ● | the failure by a concession holder to maintain insurance as required under the Mexican Airport Law, |
| ● | the assignment, encumbrance, transfer or sale of a concession, any of the rights thereunder or the assets underlying the concession in violation of the Mexican Airport Law, |
| ● | any alteration of the nature or the conditions of an airport’s facilities, as established in the concession title, without the authorization of the Ministry of Infrastructure, Communications and Transportation, |
| ● | consent to the use, or without the approval of air traffic control authorities, of an airport by any aircraft that does not comply with the requirements of the Mexican Civil Aviation Law, that has not been authorized by the Mexican air traffic control authority, or that is involved in the commission of a felony, |
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| ● | knowingly appointing or maintaining a chief executive officer or board member of a concession holder that is not qualified to perform his functions under the law as a result of having violated criminal laws, |
| ● | a violation of the safety regulations established in the Mexican Airport Law and other applicable laws, |
| ● | a total or partial interruption of the operation of an airport or its airport or complementary services without justified cause, |
| ● | the failure of ASUR to own at least 51.0% of the capital stock of its subsidiary concession holders, |
| ● | the failure to maintain the airport’s facilities, |
| ● | the provision of unauthorized services, |
| ● | the failure to indemnify a third party for damages caused by the provision of services by the concession holder or a third-party service provider, |
| ● | charging prices higher than those registered with the Ministry of Infrastructure, Communications and Transportation for regulated services or exceeding the applicable maximum rate, |
| ● | any act or omission that impedes the ability of other service providers or authorities to carry out their functions within the airport, or |
| ● | any other failure to comply with the Mexican Airport Law, its regulations and the terms of a concession. |
The Ministry of Infrastructure, Communications and Transportation is entitled to revoke a concession without prior notice as a result of the first six events described above. In the case of other violations, a concession may be revoked as a result of a violation only if sanctions have been imposed at least three times with respect to the same violation within a period of five years.
According to the Mexican National Assets Law, Mexico’s national patrimony consists of private and government-owned assets of the Federation. The surface area of our airports and improvements on such space are considered government-owned assets. A concession concerning government-owned assets may be reverted to the Mexican government prior to the concession’s expiration, when considered necessary for the public interest. In exchange, the Mexican government is required to pay compensation, taking into consideration investments made and depreciation of the relevant assets, but not the value of the assets subject to the concessions, based on the basis and methodology set forth in the reversion (rescate) resolutions issued by the Ministry of Infrastructure, Communications and Transportation. Following a declaration of reversion, the assets that were subject to the concession are automatically returned to the Mexican government.
In the event of war, natural disaster, grave disruption of the public order or an imminent threat to national security, internal peace or the economy, the Mexican government may carry out a requisition (requisa — step-in rights) with respect to our airports. The step-in rights may be exercised by the Mexican government as long as the circumstances warrant. In all cases, except international war, the Mexican government is required to indemnify us for damages and lost profits (daños y perjuicios) caused by such requisition, calculated at their real value (valor real); provided that if we were to contest the amount of such indemnification, the amount of the indemnity with respect to damages (daños) shall be fixed by expert appraisers appointed by us and the Mexican government, and the amount of the indemnity with respect to lost profits (perjuicios) shall be calculated taking into consideration the average net income during the year immediately prior to the requisition. In the event of requisition due to international war, the Mexican government would not be obligated to indemnify us.
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Grants of New Mexican Concessions
The Mexican government may grant new concessions to manage, operate, develop and construct airports. Such concessions may be granted through a public bidding process in which bidders must demonstrate their technical, legal, managerial and financial capabilities. The CNA has the power to ensure compliance of the criteria and conditions to be met by new bidders seeking to be awarded a concession and, under certain circumstances, to investigate and object an award after the bidding process has concluded. In addition, the government may grant concessions without a public bidding process to the following entities:
| ● | parties who hold permits to operate civil aerodromes and intend to transform the aerodrome into an airport so long as (i) the proposed change is consistent with the national airport development programs and policies, (ii) the civil aerodrome has been in continuous operation for the previous five years and (iii) the permit holder complies with all requirements of the concession, |
| ● | current concession holders when necessary to meet increased demand so long as (i) a new airport is necessary to increase existing capacity, (ii) the operation of both airports by a single concession holder is more efficient than other options, and (iii) the concession holder complies with all requirements of the concession, |
| ● | current concession holders when it is in the public interest for their airport to be relocated, |
| ● | entities in the federal public administration, and |
| ● | commercial entities in which local or municipal governments have a majority equity interest if the entities’ corporate purpose is to manage, operate, develop and/or construct airports. |
During the months of November and December of 2023, the SICT assigned 11 airport concessions for an indefinite term to GAFSACOMM, which is operated by SEDENA. Such assignments include the right to manage, operate, use and build airports in the states of Veracruz and Quintana Roo, including the Felipe Carrillo Puerto International Airport. On April 30, 2024, the SICT assigned GAFSACCOM a concession for the rights to manage, operate, use, and build the International Airport of the North located in the state of Nuevo Leon. SEDENA also oversees Mexico City’s airport. For more information on the Felipe Carrillo Puerto International Airport, see “Item 3. Key Information—Risks—Risks Relating to our Business—The Mexican government could grant new concessions that compete with our airports, including Cancún International Airport” and “Item 4. Information on the Company—Business Overview—Principal Air Traffic customers of our Mexican Airports—Competition.”
Additionally, under the Mexican Airport Law for the granting of a concession title or the resolution to extend the term thereof, the Ministry of Infrastructure, Communications and Transportation shall file before the Ministry of Finance and Public Credit the following:
| ● | a favorable opinion regarding the economic profitability of the corresponding project, |
| ● | the registry of the programs portfolio and investment projects, in terms of the Federal Law on Budget and Treasury Responsibility (Ley Federal de Presupuesto y Responsabilidad Hacendaria), in case public funds are used to finance an airport project, and |
| ● | the assessment of the considerations that the concession holder shall pay to the federal government in terms of applicable law. For purposes of this section, the Ministry of Infrastructure, Communications and Transportation shall submit a proposal of said considerations to the Ministry of Finance and Public Credit. |
Environmental Matters
Our Mexican operations are subject to federal, state and municipal laws, regulations and Mexican Official Standards or NOMs relating to the protection of the environment and natural resources.
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The main Mexican federal environmental laws include, among others, the General Law of Ecological Equilibrium and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al Ambiente or the “LGEEPA”), the General Law for the Prevention and Integral Management of Wastes (Ley General para la Prevención y Gestión Integral de los Residuos or the “LGPGIR”), the General Law for Sustainable Forest Development (Ley General de Desarrollo Forestal Sustentable) and the General Law for Wildlife (Ley General de Vida Silvestre), which are administered by the Mexican Environment and Natural Resources Ministry (Secretaría de Medio Ambiente y Recursos Naturales or the “SEMARNAT”) and enforced by the Mexican Federal Environmental Protection Agency (Procuraduría Federal de Protección al Ambiente or the “PROFEPA”). In addition to the above, the Law of National Waters (Ley de Aguas Nacionales) and its Regulations are administered by the Mexican National Water Commission (Comisión Nacional del Agua or the “CONAGUA”) and enforced by both CONAGUA and PROFEPA, which has inspection and supervision powers on matters related to wastewater and the prevention of contamination of bodies of water.
The LGEEPA is a framework law that establishes the principles of Mexican environmental law as well as the various instruments of public policy designed to prevent environmental damages and to protect natural resources in the country, such as the evaluation of environmental impact, liability for environmental damage or pollution and environmental zoning plans, amongst others.
In connection with the use, storage and management of hazardous materials, the generation, handling and disposal of hazardous wastes, and soil contamination, the LGPGIR imposes the obligation to remediate soil pollution and also establishes strict joint administrative liability between property owners and parties having possession of the polluted property, or holders of a concession for the use of federal land or property, regardless of which party is responsible for such contamination. However, the polluter pays principle provides non-responsible parties a legal recourse to seek reimbursement from the polluting party in civil courts.
Pursuant to the Law of National Waters, the use of national waters is subject to obtaining a concession from CONAGUA. In addition, the discharge of wastewater into the soil or water bodies under the administration of CONAGUA is subject to obtaining a wastewater discharge permit granted by the same authority. Both activities (i.e. the use of national waters and wastewater discharges) are subject to several obligations that include complying with maximum permissible levels of contaminants in wastewater, which are set forth in NOMs or by the CONAGUA in the form of particular discharge conditions imposed in the corresponding wastewater discharge permit, as well as the payment of fees for the use of national waters and for the use of bodies of water and receiving wastewater discharges, among others. The NOMs are rules of general application that set benchmarks or technical requirements for environmental protection with respect to miscellaneous activities, including the quality of wastewater discharges and the sludge resulting from wastewater treatment.
On March 11, 2022, CONAGUA published NOM-001-SEMARNAT-2021 (“NOM-001”) in the Mexican Official Gazette, establishing the maximum permissible levels of pollutants in wastewater discharges into national receiving bodies or into the soil or subsoil. This updated standard replaced NOM-001-SEMARNAT-1996 and, except for rules in connection with maximum permissible levels of contaminants for true color and acute toxicity which will be mandatory as of March 2026, the rest of the rules set forth in NOM-001 became effective on April 3, 2023. The new standard sets forth different parameters and revised permissible limits of pollutants in wastewater discharges which may require that we continue to implement specific programs in our facilities for purposes of complying with these new parameters and limits. We have implemented measurement and control systems for residual discharges, and we are currently in compliance with the updated standard. We do not anticipate that the adjustment to NOM-001 would represent a material cost that would affect our results of operations.
On December 19, 2024, the Agreement for the Human Right to Water and Sustainability, entered into by President Sheinbaum, SEMARNAT, the Secretary of Agriculture and Rural Development and CONAGUA was published in the Official Gazette, which aims at establishing public policy and regulatory measures in collaboration with local governments and the private sector in order to improve the efficiency in the use of water in all economic activities, avoid water pollution among others. In December 2025, a decree issuing a new General Law of Waters (Ley General de Aguas or “LGA”) was published. The new LGA is aimed at regulating the human right of access to potable water for human consumption. Under the LGA the municipalities are mandated to enact new regulations requirement projects to include works for the collection and recovery of storm water.
On the other hand, the amendments to the National Waters Law aim at strengthening the governance framework for management of water resources to be consistent with the new LGA. It introduces new concepts such as “hydric responsibility” which compliance will be a requirement for obtaining new water concessions as well as the extension of existing ones. It eliminates the regime of transfer of water rights and restricts the possibility to change the use of water. The new regulations for the amended National Waters Law are expected to be published during the second semester of 2026.
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Other NOMs establish, for example, the maximum thresholds for air emissions and pollution, list and classification of hazardous wastes and provide for the protection of flora and fauna species, among many other things. PROFEPA and CONAGUA can initiate or bring administrative and criminal proceedings against companies that violate environmental laws, and they have the faculties to order the temporary or permanent shut down of non-complying facilities. Additionally, under the Federal Law of Environmental Responsibility (Ley Federal de Responsabilidad Ambiental), certain third parties, as well as civil organizations, members of affected communities, PROFEPA itself and local environmental enforcement agencies may file environmental damage claims before the district courts. This law provides for a new legal proceeding to demand the reparation of or compensation for environmental damages resulting from unlawful acts or omissions. Under this new law, we could be subject to additional liabilities and penalties.
On the other hand, the General Climate Change Law (Ley General de Cambio Climático) and its Regulations on Matters of the National Emissions Registry set forth that stationary sources that generate 25,000 tons or more of CO2 equivalent per year are required to verify and report their direct and indirect emissions of greenhouse gases to the National Emissions Registry (Registro Nacional de Emisiones). In addition, the General Climate Change Law sets forth the creation of an emissions trading system. For such purposes, a 36-month Pilot Program of the Mexican Emissions Trading System (Programa de Prueba del Sistema de Comercio de Emisiones) was put in place on January 1, 2020, and ended on December of 2022. The final operative rules of the Mexican Emissions Trading System have not been published; however, once these are published SEMARNAT will establish mandatory emission caps, in accordance to the country’s greenhouse-gas-emissions reduction targets defined by the Mexican government. We will be legally obligated to meet those caps by then, either through mitigation measures or/and by acquiring Emission Reduction Certificates in the market. However, we cannot anticipate the impact that the mandatory emissions caps and the Emissions Trading Scheme will have on our operations in Mexico.
PROFEPA runs a voluntary environmental audit program, by means of which it issued Clean Industry Certificates (Certificados de Industria Limpia) for each one of all our airports in Mexico, later named as Environmental Quality Certificates (Certificado de Calidad Ambiental). These certificates confirm compliance with applicable Mexican environmental laws and regulations and remain valid to this date, provided that the corresponding renewal processes under PROFEPA’s voluntary environmental audit program are timely completed.
On December 31, 2021, the State of Yucatán where Mérida Airport is located amended its state fiscal law (Ley General de Hacienda del Estado de Yucatán or the “GFL”) including (i) a specific tax on the emission of greenhouse gases into the atmosphere (Impuesto a la Emisión de Gases a la Atmósfera or the “Emissions Tax”), which applies to any legal entity in the State of Yucatán carrying out activities which produce gas emissions, and (ii) an additional tax on the emission of soil, subsoil and water pollutants (Impuesto a la Emisión de Contaminantes al Suelo, Subsuelo y Agua or the “Pollutants Tax”) which applies to any legal entity in the State of Yucatán carrying out activities which, directly or through intermediaries, emits polluting substances generated by industrial activities that are disposed, discharged, or injected into the soil, subsoil, or water. The Emissions Tax and the Pollutants Tax became effective on January 1, 2022, and any entities obligated thereunder are eligible to receive fiscal incentives (as established in article 47-AQ and 47-BB of the GFL) in the form of a 15% reduction in the payable Emission Tax or Pollutant Tax, as applicable, provided such entities decrease their pollutant emissions by at least 20% during the fiscal year prior to receiving the incentives.
Other states have established local taxes on the emission of greenhouse gasses (such as Colima, Mexico City, Puebla, San Luis Potosi), and it is possible that other states where we operate airports (Quintana Roo, Oaxaca, Veracruz, Tabasco and Chiapas) will impose new environmental taxes, resulting in higher operation costs that may affect our financial condition. Currently, there is a proposed amendment to the Income Law for the State of Tabasco (Ley de Hacienda de Tabasco) that seeks to introduce a tax on air emissions tax applicable to fixed sources of emissions operating within the territory of the state of Tabasco. The proposal as it stands on this date would establish a fee equivalent to 5 UMAs (Unit of Measurement and Update) per ton emitted.
Modifications to existing environmental laws and regulations or the adoption of more stringent environmental laws and regulations may result in the need for investments that are not currently provided for in our capital expenditures program and may otherwise result in a material adverse effect on our business, our operations or financial condition.
Although we do not currently expect that compliance with Mexican federal, state and municipal environmental laws and regulations, as well as new environmental taxes in the states where we carry out our operations will have a material effect on our financial condition or on the results of our operations, there can be no assurance that compliance with these changes to environmental regulations will not have a material adverse effect on our business in the future.
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UNITED STATES REGULATORY FRAMEWORK
Sources of Regulation
The following are the primary, non-exclusive laws, regulations and instruments that govern the business and operation of the LMM Airport owned by Aerostar, our joint venture with PSP Investments, as well as our commercial operations at JFK, LAX and ORD Airports:
| ● | Federal Aviation Act of 1958, as enacted and amended and any regulations issued under it; |
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Federal Aviation Administration’s Airport Investment Partnership Program, as amended; |
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Part 139 Certification of Airports issued by the FAA; |
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United States Department of Transportation Regulation, 49 C.F.R. Part 23 |
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Executive Order 13224 of September 23, 2001, Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism |
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USA PATRIOT Act (including the anti-terrorism provisions thereof), |
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International Emergency Economic Powers Act, 50 U.S.C. §§ 1701, et seq. |
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Trading with the Enemy Act, 50 U.S.C. App. 1 et seq. |
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Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq., 78 stat. 252) |
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49 CFR part 21 |
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The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 USC § 4601) |
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Section 504 of the Rehabilitation Act of 1973 (29 USC § 794 et seq.), as amended |
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The Age Discrimination Act of 1975, as amended (42 USC § 6101 et seq.) |
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Airport and Airway Improvement Act of 1982 (49 USC § 471, Section 47123), as amended |
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The Civil Rights Restoration Act of 1987 (PL 100-209) |
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Section 504 of the Rehabilitation Act of 1973 |
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Titles II and III of the Americans with Disabilities Act of 1990, implemented by U.S. Department of Transportation regulations at 49 CFR parts 37 and 38; |
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The Federal Aviation Administration’s Nondiscrimination statute (49 USC § 47123) ( |
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Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations |
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Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance |
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Title IX of the Education Amendments of 1972, as amended, (20 USC 1681 et seq). |
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Airport Security Program approved by the Transportation Security Administration (“TSA”); |
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Puerto Rico Public Private Partnership Act of June 8, 2009, as amended (“Act No. 29”); |
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LMM Lease among Aerostar and the PRPA, dated July 24, 2012, which entitles Aerostar to lease and operate the LMM Airport for an initial term of forty (40) years from February 27, 2013; |
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Airport Use Agreements dated February 27, 2013, which govern the relationship between Aerostar and the principal airlines serving the LMM Airport; |
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Terminal Commercial Management Concession Agreement for Terminals 2 and Tom Bradley International Terminal (T2/TBIT) of LAX, dated March 1, 2012, between the City of Los Angeles and ASUR US Commercial Airports LLC, as amended; |
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Terminal Commercial Management Concession Agreement for Terminals 1, 3 and 6 (T1/3/6) of LAX, dated June 22, 2012, between the City of Los Angeles and ASUR US Commercial Airports LLC; |
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Concession Redevelopment and Management Lease Agreement dated September 1, 2011, as amended from time to time, between the City of Chicago and ASUR US Commercial Airports LLC, as amended; |
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Concession Agreement effective June 10, 2022, between URW Airports JFK T1 LLC and JFK NTO LLC, governing the development and operation of retail and food and beverage concessions in the New Terminal One project; |
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JFK Terminal One Lease Agreement between the Port Authority of New York and New Jersey and JFK NTO LLC, which provides the underlying framework for the New Terminal One redevelopment project and establishes JFK NTO LLC’s rights and obligations; |
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Concession Agreement dated July 1, 2023, between American Airlines, Inc. and JFK T8 JV LLC, governing the development, management and operation of retail and food & beverage concessions in Terminal 8; and |
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Privilege Permit dated July 1, 2024, between the Port Authority of New York and New Jersey and JFK T8 JV LLC, authorizing non-exclusive use of Port Authority property for concession operations. |
The Federal Aviation Act of 1958 is an act of the U.S. Congress that created the FAA. Its purpose is to promote safe air travel and to protect lives and property of people on the ground as well as air travelers. The act gave the FAA the authority to set aviation regulations and to oversee and regulate safety in the airline industry.
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The Federal Aviation Administration’s Airport Investment Partnership Program
The FAA’s Airport Investment Partnership Program, formerly known as the Airport Privatization Program, was established as a means of generating capital for airport improvement and development. Through the program, private companies may own, manage, lease and develop public airports. The 2012 Reauthorization Act (the “2012 Act”) increased the number of airports that can participate in the program from five to ten. The 2012 Act also authorized the FAA to permit up to 10 public airport sponsors to sell or lease an airport with certain restrictions and to exempt the sponsors from certain federal requirements that could otherwise make privatization impractical. Under this program, the airport’s owners or lease holders may be exempt from repayment of federal grants, return of property acquired with federal assistance and the use of proceeds from the airport’s sale or lease to be used exclusively for the airport’s purposes. The 2012 Act also provides that a private operator may receive Airport Improvement Program and discretionary grants, collect Passenger Facility Charges and charge reasonable fees, provided that the airport demonstrates compliance with nine key statutory and regulatory conditions, including applicable Airport Improvement Program grant assurances, Passenger Facility Charges assurances, and assurances that it will not “unjustly discriminate,” that the operation of the airport will not be interrupted, that fees imposed on general aviation operators will not increase faster than fees for air carriers, and that collective bargaining agreements for airport employees will not be abrogated. The pilot program began in September 1997. The 2018 Reauthorization Act (the “2018 Act”) renamed the program the Airport Investment Partnership Program and removed the restriction on the number and type of public airports that may participate. The 2018 Act, among other things, permitted public sponsors and private operators to manage an airport jointly. As of December 31, 2025, there were two approved airports (including the LMM Airport).
FAA and Part 139 Certification
In order for Aerostar to operate the LMM Airport, it was required to have FAA approval. Aerostar submitted its final application to the FAA on September 19, 2012. The FAA rendered a record of decision on February 25, 2013, approving the LMM Lease and Aerostar as a private operator, among other matters. The application included a description of the property, the terms of the transfer, the qualifications of our joint venture as the private operator, any requests for exemptions under the 1996 FAA Reauthorization Act, the necessary air carrier approval, and a description of plans for the LMM operations, maintenance and development. The FAA issued Aerostar a Part 139 certificate on February 27, 2013. The FAA and TSA will continue to monitor the transfer of operations for the LMM Airport to Aerostar and will treat Aerostar as any other airport sponsor, subject to all federal safety and security requirements.
In addition to approval under the FAA Airport Privatization Program, Aerostar is required to hold an Airport Operating Certificate or the “Part 139 Certification” from the FAA pursuant to U.S. federal law 14 CFR Part 139. To obtain a certificate, an airport must agree to certain operational and safety standards and provide for such things as firefighting and rescue equipment. FAA Airport Certification Safety Inspectors conduct yearly inspections to ensure compliance, though the FAA is authorized to make unannounced inspections. If the FAA finds that an airport is not meeting its obligations, it may impose administrative sanctions. It can also impose financial penalties for each day the airport continues to violate a Part 139 requirement. In extreme cases, the FAA has the power to revoke the airport’s certificate or limit the areas of an airport where air carriers can land or takeoff.
Airport Security Program
Each airport operator must have an Airport Security Program approved by the TSA and is subject to regulation by the TSA. The security program at LMM was approved and must continue to be in compliance with TSA regulations and guidelines at all times during the term of Aerostar’s operation of the airport. The TSA provides direct passenger screening at LMM and will continue to do so during the length of the concession at no cost to Aerostar.
Act No. 29 authorizes all departments, agencies and instrumentalities of the government of Puerto Rico to establish public-private partnerships through partnership contracts as defined under Act No. 29. Act No. 29 sets the process for procuring Public Private Partnership projects, including the development of a Desirability & Convenience study for each prospective project and establishment of the Request for Qualifications and Request for Proposals process. It also establishes eligibility criteria for potential bidders and provides lenders the right to “step-in” upon default. Granting Aerostar the LMM Lease to operate the LMM Airport was the second project to be completed under Act No. 29. A public-private partnership is a contractual arrangement between a public sector agency and a non-government entity that allows for greater private sector participation in the development and financing of infrastructure projects and provisions of services.
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Role of the Federal Aviation Administration
The FAA is the national aviation authority of the United States. As an agency of the U.S. Department of Transportation, it has authority to regulate and oversee aspects of civil aviation in the United States. The FAA’s primary responsibilities include:
| ● | regulating U.S. commercial air space transportation; |
| ● | regulating air navigation facilities’ and flight inspection standards; |
| ● | encouraging and developing civil aeronautics, including new aviation technology; |
| ● | issuing, suspending, or revoking pilot certificates; |
| ● | regulating civil aviation to promote safety, especially through local offices called Flight Standards District Offices; |
| ● | developing and operating a system of air traffic control and navigation for both civil and military aircraft; |
| ● | researching and developing the National Airspace System and civil aeronautics; and |
| ● | developing and carrying out programs to control aircraft noise and other environmental effects of civil aviation. |
Role of the Transportation Security Administration
The TSA is an agency of the U.S. Department of Homeland Security that was created after the terrorist attacks of September 11, 2001 to strengthen the security of U.S. transportation systems. The TSA is responsible for security at U.S. airports and has deployed a federal workforce to screen all commercial airlines passengers and baggage. The TSA also regulates aviation security. The TSA employs a risk-based strategy to secure U.S. transportation systems. As of January 2026, the TSA had approximately 50,000 security officers who screened more than 2.5 million passengers each day at nearly 440 federalized airports throughout the United States.
Environmental Matters
Our business in the United States is subject to U.S. federal and state laws and regulations relating to the protection of the environment. The principal federal environmental laws include the federal Clean Air Act, governing air emissions, the federal Clean Water Act, governing wastewater and storm water discharges, the federal Resource Conservation and Recovery, governing waste management.
In Puerto Rico, our LMM Airport business is subject to various Puerto Rico laws and regulations administered by the Puerto Rico Department of Natural and Environmental Resources (“DNER”). The LMM Airport maintains several environmental permits, including an operating permit for air emissions and non-hazardous waste generator and transporter registrations issued by the Puerto Rico Environmental Quality Board (an agency that has since been merged into the DNER), a storm water permit and hazardous waste generator registration issued by the U.S. Environmental Protection Agency (“EPA”), a wastewater discharge authorization issued by the Puerto Rico Aqueduct and Sewer Authority, and a used oil storage permit issued by the local municipality.
The LMM Airport is subject to administrative consent orders issued by EPA pursuant to its corrective action authority under the Resource Conservation and Recovery Act. The consent orders require investigation and remediation of various areas of soil and groundwater contamination, primarily but not exclusively related to leaks and spills of gasoline and jet fuel from the fuel hydrant system at the LMM Airport property. Investigation and remediation of the contamination currently is underway and is expected to continue for several years. Pursuant to the LMM Lease, the Authority retains responsibility for all contamination that occurred before February 27, 2013, when Aerostar began operating the LMM Airport.
We do not expect that compliance with the applicable U.S. federal or state environmental laws and regulations will have a material effect on our financial condition or results of operations. There can be no assurance, however, that environmental laws and regulations or the enforcement thereof will not change in a manner that could require us to make additional capital contributions to Aeropuertos de Cancún or Aerostar, which could have a material adverse effect on our income derived from these entities.
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Puerto Rico Regulatory Framework
Role of the Puerto Rico Ports Authority
The PRPA is a public corporation and government instrumentality created by Law No. 125 on May 7, 1942. PRPA is the owner and prior operator of the LMM Airport. The PRPA is directed by an Executive Director and a board of directors. It has a Maritime Department and an Aviation Department. In addition to leasing the LMM Airport to Aerostar, the Aviation Department owns and currently operates the Isla Grande, Ponce, Mayaguez, Arecibo, Aguadilla, Culebra, Humacao, Ceiba and Vieques airports (the “Regional Airports”). Between 2019-2020, pursuant to Act 125-1942 and the internal procurement regulations, PRPA ran a procurement process for a seven-year Operations and Maintenance Agreement (“O&M Agreement”) to operate all Regional Airports. Due to budgetary and fiscal constraints, the O&M Agreement was ultimately not executed. Later in 2020, the Puerto Rico Public-Private Partnerships Authority (the “Authority”) commissioned a Desirability and Convenience Study (the “Study”) to explore the feasibility and market interest for private sector participation in the Regional Airports through one or more bundled PPP concessions. The Authority published a public notice on November 21, 2023 requesting comments by December 21, 2023 on the Study to gauge industry interest in the Regional Airports project.
Scope of LMM Lease and General Obligations of Aerostar
As authorized by Act No. 29, the PRPA granted Aerostar the LMM Lease for an initial term of 40 years from February 27, 2013. This initial term may be terminated earlier or extended if both the PRPA and Aerostar agree to the modification in writing, in accordance with the terms of the LMM Lease and the Airport Use Agreements.
Pursuant to the LMM Lease, Aerostar made an upfront payment to the PRPA of U.S.$615.0 million, which was funded by a combination of (i) debt financing and (ii) equity contributions by each of ASUR (through Aeropuerto de Cancún) and Oaktree Capital. During the term of the LMM Lease, Aerostar will be required to make annual revenue-sharing payments to the PRPA, fixed at U.S. $2.5 million per year for the first five years, 5.0% of gross airport revenues for the sixth through the thirtieth years and 10.0% of gross airport revenues for the thirty-first through fortieth years.
During its term, the LMM Lease allows Aerostar to: (i) operate, manage, maintain, improve, enhance, develop and rehabilitate the LMM Airport to provide general, ancillary and complementary airport services to members of the general public; and (ii) collect and retain all fees, charges and revenues in respect of the LMM Airport, its assets and contracts pertaining to the LMM Airport. The LMM Lease further provides for the PRPA to assign and transfer substantially all of the assets used exclusively at the LMM Airport to Aerostar for the term of the Lease.
In accordance with the LMM Lease, the PRPA assigned substantially all of the contracts pertaining to the LMM Airport to Aerostar. Additionally, the LMM Lease requires that Aerostar indemnify the PRPA for any losses suffered by it due to: (i) Aerostar’s breach of its obligations under the LMM Lease, (ii) any assumed debts, liabilities and obligations relating to the LMM Airport or its operations and (iii) any taxes or mortgage recording charges related to the transfer of Aerostar’s interest under the Lease.
Under the LMM Lease, Aerostar is required to comply at all times during the LMM Lease’s term, with the FAA’s Airport Investment Partnership Program. In order to be compliant, Aerostar must ensure that (i) the LMM Airport is available for public use without unjust discrimination; (ii) operations of the LMM Airport are not interrupted if Aerostar becomes insolvent; (iii) it maintains, improves and modernizes the LMM Airport through capital investments; (iv) the charges imposed on air carriers do not increase faster than the rate of inflation unless a higher amount is approved by 65.0% of the airlines serving the LMM Airport; (v) the percentage increase in fees imposed on general aviation aircrafts does not exceed the percentage increase in fees imposed on air carriers; (vi) safety and security at the LMM Airport are maintained at the highest possible level; (vii) the adverse effect of noise from LMM Airport is mitigated to the same extent as at a public airport; (viii) any adverse effects on the environment from the operations of the airport are mitigated to the same extent as at a public airport; and (ix) any collective bargaining agreement that covers employees of the LMM Airport and is in effect on the date the LMM Lease went into effect is not abrogated by the LMM Lease.
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The LMM Lease requires that Aerostar maintain insurance covering specified risks, such as employment practices liability insurance, workers’ compensation insurance, commercial general liability insurance, automobile liability insurance, risk insurance for any maintenance or repairs, professional liability insurance, risk property insurance, pollution legal liability insurance, business insurance against interruption or loss of projected revenues for at least six months from the occurrence of the risk, contractors protective liability insurance, boiler and machinery coverage or equipment breakdown coverage, and fiduciary liability insurance, in each case as specified in the Lease.
Our subsidiary Aerostar is liable to the PRPA for the performance of all obligations under the LMM Lease, including obligations arising from third-party contracts as well as any damage to the PRPA-owned assets and to third-party airport users. Therefore, ASUR is liable for any of Aerostar’s obligations under the LMM Lease.
So long as there are no events of default outstanding under the LMM Lease, Aerostar has the right to enter into one or more leasehold mortgages and assign its rights under the LMM Lease to a leasehold mortgagee. However, limitations on any leasehold mortgage include: (i) the mortgage or lien cannot affect the fee simple interest and estate of the PRPA in the LMM Airport; (ii) the PRPA cannot be liable for any payment secured by the leasehold mortgage; and (iii) the rights acquired by a leasehold mortgagee are subject to and subordinated to the terms of the LMM Lease and to all of the PRPA’s rights and the rights of the airlines. Further, Aerostar is liable at all times to the PRPA for payments of all sums due to it under the LMM Lease and for the performance of all of Aerostar’s obligations under the LMM Lease. The mortgagee cannot have greater rights or interests in than Aerostar’s and the PRPA’s in the LMM Airport. The mortgagee and the Government Development Bank for Puerto Rico must enter into a consent agreement acceptable to all the parties where consenting to the assignment of the LMM Lease to an agent in connection with the financing of the mortgage. Aerostar has granted a leasehold mortgage to Citibank, as collateral agent for Aerostar’s secured lenders, to secure the debt incurred to finance the leasehold fee, capital expenditures and certain initial projects.
Aerostar cannot transfer its interest under the LMM Lease unless: (i) the FAA and the TSA have approved the transfer and the transferee; (ii) the transferee obtains all necessary approvals and exemptions from the FAA as required pursuant to 49 U.S.A. Section 47134; (iii) the PRPA has approved the transferee and (iv) the proposed transferee enters into an agreement with the PRPA satisfactory to it where the transferee acquires the rights, assumes the obligations of Aerostar and agrees to perform and observe all obligations and covenants of Aerostar under the Lease. However, the limitations on transfers do not prohibit or limit the transfer of direct or indirect ownership interests in Aerostar by ASUR or the other equity participants or its beneficial owners to any person so long as no more than 50.0% of the ownership interests in Aerostar are transferred in a single transaction or series of related transactions.
Scope of Airport Use Agreements
As operator of the LMM Airport, and as required by the LMM Lease, Aerostar, along with the PRPA as the owner of the LMM Airport, entered into certain Airport Use Agreements with the principal airlines serving the LMM Airport, which are referred to as the “Signatory Airline” for a 15-year term beginning on February 27, 2013, although the term can be terminated earlier if the parties agree to it. If at the end of the term, new use agreements have not been approved, each of the Airport Use Agreements in effect at the time of termination would continue to be binding until new use agreements are executed. Any new use agreement shall afford to the Signatory Airlines the same rights they have under the current Airport Use Agreements with respect to the LMM Lease.
The Airport Use Agreements give the Signatory Airlines the right to conduct an airline transportation business and to perform any incidental or necessary activities to conduct their business, including using all facilities, improvements, equipment and services that are designated for common use or in connection with the LMM Airport. Aerostar must provide open access to the LMM Airport and must designate most of the airport facilities for common use by the Signatory Airlines. If for any given year of the term Aerostar wishes to reduce the common use space, it must obtain the approval of all Signatory Airlines that (i) in the aggregate, paid a majority of the fees charged to the Signatory Airlines under the Airport Use Agreement and (ii) constitute a majority of all votes cast by Signatory Airlines within 30 days of Aerostar’s request to reduce the common space. Each Airport Use Agreement allows Aerostar to assign space as both seasonal and non-seasonal exclusive use space to each of the Signatory Airlines, but such assignments will not constitute a lease.
Aerostar also agreed under the Use Agreement to engage in the Capacity Enhancement Plan, which was already completed. For a fuller description of the capital projects Aerostar will engage in to improve the facilities and premises of the LMM Airport, see “Item 4. Information on the Company—Regulatory Framework—Puerto Rican Regulatory Framework—Capacity Enhancement Plan.”
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Aerostar is required by each Airport Use Agreement to indemnify the Signatory Airlines or the PRPA for any loss arising from any injury to persons, including death, or damage to property, that results from Aerostar’s operation of the LMM Airport. However, Aerostar is not responsible for indemnifying the Signatory Airlines or the PRPA if the injury or damage is caused by negligent or willful acts of the PRPA, the Signatory Airlines or a third party that is not under contract with Aerostar.
The Airport Use Agreements entitle Aerostar to the following total annual contributions from the airlines serving the LMM Airport:
| ● | For the first partial year of the term (i.e., the year ending December 31, 2013), U.S.$62.0 million multiplied by the number of days of the term in that year over the number of days in that year. |
| ● | For the five full years of the term, U.S.$62.0 million per year. |
| ● | For the remaining full years of the term, the total annual contribution for the prior year, adjusted for inflation based on the U.S. non-core consumer price index. For the year ended December 31, 2025, the total annual contribution was U.S.$ 76.8 million. |
Additionally, the Airport Use Agreement allows Aerostar to increase the fees it charges to the Signatory Airlines for capital expenditures relating to projects that the Signatory Airlines approve and for government-mandated capital and certain operating expenditures. Increases to the fees imposed on the Signatory Airlines and payable to Aerostar in relation to these capital expenditures are subject to the specific adjustment mechanisms outlined in each of the Airport Use Agreements.
Aerostar must operate the LMM Airport in accordance with all requirements of applicable law, including the FAA’s Airport Operating Certificate, the Airport Security Program approved by the TSA and the Airport Certificate Manual. Aerostar was also required to deposit U.S.$6.0 million into an escrow account called the Puerto Rico Air Travel Promotion and Support Fund on February 27, 2013. As of December 2018, the complete $6.0 million has been distributed to Signatory Airlines in accordance with the Airport Use Agreements.
Events of Default under the Airport Use Agreement include if Aerostar (i) fails to comply with its obligations under the Airport Use Agreement; (ii) fails to comply with a work plan approved by the airlines; (iii) any portion of the airport used by the airline is subject to a levy under execution or attachment that is not vacated by a court within 60 days or (iv) admits in writing that it cannot pay its debts as they become due, makes an assignment for the benefit of creditors or files a voluntary bankruptcy.
Capital Expenditures Required under the LMM Lease and Airport Use Agreements
Aerostar was required under the LMM Lease to fund and perform certain general accelerated upgrades at its sole cost and expense. These mandated general accelerated upgrades include landscaping improvement work as specified in the LMM Lease, repair and replacement of jet bridges that do not conform to good industry practice, repair of damaged roadways and markings, curbs and walkways, replacement of deteriorating flooring throughout the interior of the terminals and buildings at the LMM Airport, installment of Wi-Fi connectivity throughout the LMM Airport terminals, installment of electric outlets for passenger use through the LMM Airport terminals, upgrade, enhancement, repair and replacement of deficient and unsafe areas of lighting, and repair and replacement of elevators, escalators and stairwells throughout the LMM Airport terminals and buildings. Aerostar completed work on the required general accelerated upgrades by December 31, 2014.
Aerostar is also required under the Airport Use Agreements to complete certain initial capital projects, such as construction of new access roads and all necessary utilities, relocation of certain terminal baggage inspection facilities, replacement of stairwells in the LMM Airport parking garage, replacement of failed pavement in taxiways, update of airline location signs on access roads and terminal entrances and repair roof leaks in all LMM Airport terminals, among others. These initial capital projects were necessary to bring the condition of the LMM Airport to a high level consistent with the Operating Standards (described below). If the aggregate cost incurred by Aerostar for performing all required initial capital projects is less than U.S.$34.0 million, the Signatory Airlines have the right to require that Aerostar expend an amount equal to the difference between the costs incurred in performing the initial capital projects and U.S.$34.0 million toward completing other capital projects approved by the Signatory Airlines without adjusting the annual contribution the Signatory Airlines must pay Aerostar under the Airport Use Agreements. As of December 31, 2025, most of these initial capital projects have been completed, and those still in process are included in the short to medium term investment plan schedule.
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In addition, Aerostar must perform any capital project that is required in order to comply with any applicable law or airport certification requirement. The Airport Use Agreements allow Aerostar to increase certain annual fees payable by the Signatory Airlines in amounts equal to the annual amortized costs of any government mandated capital projects.
All capital projects related to the operation, maintenance, construction and rehabilitation of and capital improvements to the LMM Airport must be in compliance with the standards, specifications, policies, procedures and processes outlined in the Operating Standards prepared by the PRPA and the Puerto Rico Public Private Partnerships Authority. The purpose of the Operating Standards is to provide minimum performance requirements that Aerostar must meet for the benefit of Puerto Rico, the PRPA, and the Signatory Airlines in the operation and maintenance of the LMM Airport.
Capacity Enhancement Plan
In accordance with the Airport Use Agreements, Aerostar and the Signatory Airlines agreed on a plan for the reconfiguration of the LMM Airport, also known as the Capacity Enhancement Plan, or CEP.
The CEP was a three-phase major renovation and reconfiguration project planned and designed mainly for the purpose of significantly improving the operating and passenger efficiency of the LMM Airport. The final phase was completed as of September 30, 2015.
Ownership Commitment and Restrictions
The LMM Lease allows any person who holds any shares of capital stock or any other equity interest in Aerostar to transfer its interest to any person so long as it does not constitute a “change of control” under the Lease. A “change of control” under the LMM Lease occurs if (i) there is a transfer of 50.0% or more of the direct or indirect voting or economic interests in Aerostar to another party, (ii) there is a transfer from one party to another of the power to directly or indirectly direct the management and policy of Aerostar, whether through ownership of voting securities, by contract, management agreement, or common directors, officers or trustees or otherwise or (iii) there is a merger, consolidation, amalgamation, business combination or sale of substantially all of the assets of Aerostar. If the proposed transfer would result in a change in control, then the transfer must be approved as described in this section.
In addition to the restrictions on transfers imposed by the LMM Lease, the Airport Use Agreements restrict Aerostar from transferring its interest in the LMM Airport or its rights under the LMM Lease unless the transferee is approved by the Signatory Airlines. The Signatory Airlines can withhold approval of the transferee if they reasonably determine that the transfer would be detrimental to their air transportation business at the LMM Airport. This determination must take into account one or more of the following factors: (i) the financial strength and integrity of the transferee, (ii) the experience of the transferee in operating airports and performing other projects and (iii) the background and reputation of the proposed transferee. Transfers are permitted so long as they do not constitute a “change of control,” which is defined in the same way as under the LMM Lease.
Reporting, Information and Consent Requirements
The LMM Lease requires Aerostar to notify the PRPA of all material emergencies, accidents and airfield incidents at the LMM Airport Facility. Further, in addition to reporting obligations under applicable environmental laws, Aerostar must notify the PRPA of any discharge, dumping or spilling of any reportable quantity, as defined under applicable environmental laws, of hazardous substances. Additionally, Aerostar must provide the PRPA any notice it is required to deliver to the Signatory Airlines under the Airport Use Agreements within five business days.
Aerostar is also required to provide the PRPA its unaudited financial statements for each six-month period within 60 days and its audited financial statements within 120 days after the end of each reporting year during the term. In addition, the LMM Lease grants the PRPA or any other governmental authority of competent jurisdiction audit and inspection rights with regards to Aerostar’s operation of the LMM Airport through the term of the LMM Lease.
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Similarly, the Airport Use Agreements require that Aerostar keep its books and records relating to the Airport Use Agreements and to the computation of the fees payable under it by the Signatory Airlines at the LMM Airport or in or near San Juan, Puerto Rico for at least five years from the date the books and records are created. Further, the Signatory Airlines have the right, at their own expense and subject to prior notice to Aerostar, to examine, make copies of and audit any book, record or account that relates to the computation and payment of the Signatory Airlines’ annual contributions. Aerostar is also required to provide the Signatory Airlines any accident notice or financial report it is required to provide the PRPA under the LMM Lease.
Events of Default, Termination and Revocation of the LMM Lease
Under the LMM Lease, any of the following items constitute an event of default by Aerostar:
| ● | the failure to comply with any material obligation under the LMM Lease, |
| ● | the failure to pay amounts owed to the PRPA, |
| ● | the repeated failure to comply with the performance requirements of the Operating Standards, |
| ● | the violation of the transfer restrictions imposed by the LMM Lease, |
| ● | the inability of Aerostar to pay its debt as it becomes due, and |
| ● | the creation of a levy under execution or attachment is made against all or any material portion of the LMM Airport as a result of a mortgage or lien. |
Additionally, the LMM Lease will be automatically rescinded if Aerostar or any subsidiary, alter ego, president, vice presidents, executive directors, directors or members of its Board of Directors is convicted or enters a plea of guilty in respect of any crime outlined in Act No. 458 of the Legislative Assembly of Puerto Rico, enacted on December 29, 2000, or any succeeding law. Similarly, if Aerostar is convicted of a public integrity crime other than an Act No. 458 crime, the LMM Lease will terminate as required by Act No. 237 of the Legislative Assembly of Puerto Rico, enacted August 31, 2004, or any succeeding law.
Upon the occurrence of any of the events of default described above, the PRPA has the right to do any or all of the following:
| ● | terminate the LMM Lease, subject, in certain circumstances, to Aerostar’s right to cure the default; |
| ● | if the default consists of the Aerostar’s failure to pay amounts due, make the payment on behalf of Aerostar and to be reimbursed within three business days after written demand of reimbursement; |
| ● | cure the default and seek reimbursement for any costs associated with curing the default plus an administrative fee equal to 15.0% of the cure costs; |
| ● | seek specific performance, injunction or other equitable remedies if damages are inadequate to remedy the default in question; |
| ● | seek to recover losses arising from the default and exercise any recourse available to any party who is entitled to damages or a debt under applicable law; |
| ● | seize any of Aerostar’s goods located at the LMM Airport; |
| ● | debar or suspend Aerostar for 10 years in accordance with Act No. 29; and |
| ● | exercise any of its other rights and remedies under the LMM Lease, at law or in equity. |
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New Airports Certified as Part 139 Airports
The LMM Lease entitled Aerostar to receive compensation from the PRPA if the PRPA or any other governmental authority established under the laws of Puerto Rico obtains an airport certificate under 14 CFR Part 139 that would authorize scheduled passenger commercial services at any airport located within Puerto Rico that did not have such certificate as of February 27, 2013 (i) prior February 27, 2033 at any airport located within the municipality of Ceiba or (ii) prior to February 27, 2028 at any airport located in Puerto Rico other than in the municipality of Ceiba. The compensation should restore Aerostar to the same after-tax economic position it would have enjoyed if the events described in this paragraph had not occurred. The actual amount of the compensation must be calculated in accordance with the terms of the LMM Lease.
New York Regulatory Framework
Role of the Port Authority of New York and New Jersey
The Port Authority of New York and New Jersey (the “Port Authority”) is a bi-state agency which manages transportation and trade infrastructure, including major airports, bridges, tunnels, ports, and rail systems in New York and New Jersey. The Port Authority is the underlying landlord for JFK, including for both Terminal 1 (through its lease with JFK NTO LLC, the Operator) and Terminal 8 (through its lease with American Airlines and through a separate non-exclusive Privilege Permit with the concessionaire). For Terminal 8, the Port Authority’s consent is required for the acquisition by a third party of the beneficial ownership of 30% or more of the equity or voting power of the concessionaire, and such consent cannot be unreasonably withheld, conditioned or delayed. To complete the acquisition of URW’s business, we obtained the consent of the Port Authority on October 6, 2025.
Concession Agreements
On December 11, 2025, ASUR US Commercial Airports acquired ASUR Airports LLC and assumed responsibility of its obligations under each concession agreement. ASUR Airports LLC, through its entity ASUR Airports JFK T1, and JFK NTO LLC (the “Operator”) entered into a concession agreement (the “JFK NTO Concession Agreement”) effective June 10, 2022, requiring an uncapped parent company guaranty and a minimum U.S.$10.0 million investment to activate the concessions program (approximately U.S.$6.7 million for Phase A opening in June 2026), with the Operator reimbursing up to U.S.$12.0 million in documented soft costs. The Operator leases Terminal 1 from the Port Authority under a separate lease for the terminal’s demolition, replacement, and operation.
American Airlines and JFK T8 JV entered into a concession agreement (the “JFK T8 Concession Agreement”) on July 1, 2023, requiring an uncapped parent company guaranty, a U.S.$1.0 million letter of credit to American Airlines, and a separate U.S.$3.7 million letter of credit to the Port Authority under a July 1, 2024 Privilege Permit.
The JFK NTO Concession Agreement
Financial Obligations
The development of JFK NTO is split into “Phase A” and “Phase B”. ASUR Airports JFK T1 is required to invest at least U.S.$10 million of its own funds in projects to activate the commercial concessions program at JFK T1 (the “Concessions Program”). This investment includes funds directed at leasing efforts, recruitment of sublessees and other similar costs. The investment must be allocated directly to various sublessees, including, among others, to build capacity for local businesses to participate in the Concessions Program, building awareness and future opportunities, developing a local business pipeline and making available education and training opportunities.
However, the Operator must reimburse URW Airports JFK T1 for reasonable and documented internal and third party costs arising from URW Airports JFK T1’s efforts to activate the Concessions Program up to an aggregate amount of U.S.$12.0 million. This reimbursement is for “soft costs,” which are distinct from the required U.S.$10.0 million investment in the actual activation of the Concessions Program. If any of the phase opening dates of the Concessions Program occur after the scheduled opening date of such phase, the amount of reimbursement for such “soft costs” is increased by an amount reasonably agreed by the parties.
Phase A contains the largest portion of the terminal’s commercial areas, accounting for about 67.8% of the total project’s commercial space. Phase A is scheduled to open in 2026.
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Phase B contemplates additional new gates (depending on what type of gate is constructed) with additional complementary concessions.
Change of Control
The transfer of more than 50% of the equity interest in the tenant does not require the consent of the Operator, provided that (i) 30-day prior written notice is given to the Operator, (ii) the transferee is an Eligible Contractor Assignee, and (ii) each parent company guaranty remains in effect (with the option for the transferee the provide a replacement guaranty). An Eligible Contract Assignee is a person that (a) is sufficiently financially responsible to support the obligations of ASUR Airports JFK T1 under the JFK NTO Concession Agreement, (b) has all necessary expertise to perform ASUR Airports JFK T1’s obligations, (c) is a direct assignee and assumes all obligations under the JFK T1 Concession Agreement, and (d) is not subject to certain sanctions.
The JFK T8 Concession Agreement
Investment Obligations
The JFK T8 Concession Agreement contemplates several investment obligations. Notably, it requires the JFK T8 JV to spend (or cause subtenants to spend) at least U.S.$104.0 million in capital expenditures and investment in the construction and installation of improvements during the first three years of the agreement’s term (i.e., by mid-2026). It also requires the JFK T8 JV to spend (or cause subtenants to spend) at least $21 million on “Key Money” (U.S.$2.5 million), “Concession Area Base Work” (i.e., common area improvements, retail incubator spaces and kiosks, and digital hardware and infrastructure) (U.S.$17.3 million) and “Mid-Term Reinvestments” (U.S.$1.2 million).
Change of Control
The JFK T8 Concession Agreement requires the consent of American Airlines and the Port Authority in the event of the acquisition by a third party of the beneficial ownership of 30% or more of the equity or voting power of the JFK T8 JV. Such consent cannot be unreasonably withheld, conditioned or delayed. The JFK T8 Concession Agreement only includes the following specific requirements regarding the entity acquiring control over JFK T8 JV: (i) the JFK T8 JV and its affiliates must always be in compliance with OFAC (i.e., not a person restricted from doing business with the Port Authority under the regulation of the Office of Foreign Assets Control of the US Department of the Treasury) or under other applicable law, and (ii) the cannot be a “Prohibited Person” (i.e., persons under certain US sanctions or restrictions, a list of which is provided in the Privilege Permit).
Illinois Regulatory Framework
Role of the Chicago Department of Aviation and Chicago City Council
The City of Chicago, through the Chicago Department of Aviation (“CDA”) and the Chicago City Council, oversees and manages ORD, including the approval of airport concession agreements and changes of control of concessionaires. The City of Chicago is the landlord and concession counterparty for the Terminal 5 retail and food and beverage concession at ORD. For a change of control involving the transfer of all interests in the concessionaire, City Council consent is required, with the consent request to be submitted at least 120 days before the proposed transfer. To complete the acquisition of the mainland-U.S. airports business, we obtained the consent of the City of Chicago on September 25, 2025.
Concession Agreement
On December 11, 2025, ASUR US Commercial Airports acquired ASUR Airports LLC and assumed responsibility of its obligations under each concession agreement. ASUR Airports LLC and the City of Chicago entered into a concession redevelopment and management lease agreement on September 1, 2011 for Terminal 5, which was amended on March 15, 2021 to grant certain COVID-19 pandemic relief measures. The ORD Concession Agreement does not contemplate a guarantee agreement, but requires a “security deposit” in the form of an irrevocable standby letter of credit equal to three months’ worth of the first lease year’s minimum annual guaranteed rent. On March 4, 2025, ASUR Airports LLC and the City of Chicago agreed to extend the ORD Concession Agreement for an additional five years, with the new termination date of June 8, 2039.
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Change of Control
The ORD Concession Agreement requires the consent of (i) the City Council of Chicago if all of the interests in the concession holder are transferred or (ii) the commissioner of the Chicago Department of Aviation if less than all of the interests in the concession holder are transferred (the change of control or transaction in both (i) and (ii) is considered to be a “Transfer”).
A written request for consent to the City Council of Chicago must be made at least 120 days prior to the proposed Transfer, unless the City of Chicago determines that more time is required. All reasonable costs and expenses incurred by the City of Chicago in connection with processing its consent to a proposed transfer are payable to the City of Chicago as additional rent. Further, the ORD Concession Agreement contemplates that in case of Transfer where the fees or rent payable to the tenant exceed the rent under the agreement payable by tenant to the City of Chicago, the difference is due by the tenant to the City as additional rent.
California Regulatory Framework
Role of Los Angeles World Airports (“LAWA”) and the Board of Airport Commissioners
The City of Los Angeles, through Los Angeles World Airports (“LAWA”) and the Board of Airport Commissioners, oversees and manages LAX, including the approval of airport concession agreements and changes of control of concessionaires. The City of Los Angeles is the landlord and concession counterparty for the Terminal 2, Tom Bradley International Terminal (TBIT), and Terminals 1, 3, and 6 retail and food and beverage concessions at LAX. For a change of control involving the transfer of 50% or more of the interests in the concessionaire, consent from the City of Los Angeles, acting through its Board of Airport Commissioners, is required. To complete the acquisition of the mainland-U.S. airports business, we obtained the consent of the City of Los Angeles on December 4, 2025.
Concession Agreements
On December 11, 2025, ASUR US Commercial Airports, completed the acquisition of ASUR Airports LLC and assumed responsibility of its obligations under each concession agreement. ASUR Airports LLC and the City of Los Angeles entered into two terminal commercial management concession agreements: one effective as of March 1, 2012 regarding Terminal 2 and Tom Bradley International Terminal (TBIT), and another one effective as of June 22, 2012 regarding Terminals 1, 3 and 6, which has been amended seven times (the “LAX Concession Agreements”). Each LAX Concession Agreement requires a guarantee agreement and a “faithful performance guarantee” in the form of a letter of credit equal to two months’ worth of the prior year’s minimum annual guaranteed rent (MAGR). In 2025, the parties entered into amendments to extend the LAX Concession Agreements through June 30, 2038 (with potential extension to June 30, 2040), requiring: reimagined facilities, new service and data transparency standards, Management Fee payments tied to customer satisfaction scores, pop-up and incubator tenant programs, new brands and reconcepts and mid-term refurbishment projects to be completed by January 31, 2028 ahead of the 2028 Olympic Games, with a projected investment of at least U.S.$20 million.
Change of Control
The LAX Concession Agreements require the consent of the City of Los Angeles, acting through its Board of Airport Commissioners (the “Board”) in the event of a transfer of 50% or more of the interests in the company. As a result, the City of Los Angeles’ consent was required for the acquisition. Consent requires a written request for consent to be sent to the Board, which should include (i) the proposed documentation evidencing the transfer, (ii) the name and address of the proposed transferee, (iii) the nature and character of the business of the proposed transferee, and (iv) current financial statements of the transferee, as well as those for the past three years (audited to the extent available and prepared in accordance with generally acceptable accounting principles). The LAX Concession Agreements do not provide specific requirements regarding the entity acquiring control over the company. The LAX Concession Agreements provide that in case of “Transfer” (which includes changes of control) a “transfer premium” needs to be paid by the tenant to the City of Los Angeles, in an amount equal to 20% of the consideration received by the tenant as a result of the “Transfer” over and above the amount of tenant’s rental and other payment due to the City of Los Angeles (with certain exclusions).
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Investment Obligations
The LAX Concession Agreements require capital expenditures for the refurbishment of the premises, plus the addition of various customer service improvement and reconcepting strategies.
The Company must invest no less than $20 million and, if the Company invests additional capital, and the reimagined facilities and Mid-Term Refurbishment are completed successfully on time, the LAX Concession Agreements can be extended by the City for up to two additional years (until June 30, 2040).
COLOMBIAN REGULATORY FRAMEWORK
Applicable Law in Colombia
The following are the principal laws, regulations and instruments that govern the operation of our Colombian airports:
| ● | the concession that entitles Airplan to operate our Colombian airports, which was granted on March 13, 2008, |
| ● | Law 12 of 1947, enacted on October 23, 1947; |
| ● | Law 80 of 1993, enacted on October 28, 1993; |
| ● | Law 105 of 1993, enacted on December 30, 1993; |
| ● | Law 336 of 1996, enacted on December 20, 1996; |
| ● | Law 1150 of 2007, enacted on July 16, 2007; |
| ● | Law 1474 of 2011, enacted on July 12, 2011; |
| ● | Law 1508 of 2012, enacted on January 10, 2012; |
| ● | Law 1955 of 2019, enacted on May 25, 2019; |
| ● | Law 2294 of 2023, enacted on May 19, 2023; |
| ● | Decree 1079 of 2015, enacted on May 26, 2015; and |
| ● | decrees and resolutions governing aeronautical activity enacted by the Colombian Ministry of Transportation and Aerocivil, including the Aeronautical Regulations of Colombia (Reglamentos Aeronáuticos de Colombia), issued by the Aerocivil. |
Role of the National Infrastructure Agency
The National Infrastructure Agency, or the ANI, is a government entity within the scope of the Colombian Ministry of Transportation and represents the principal institution responsible for infrastructure concessions in Colombia. The ANI was created in 2011 and assumed the duties of its predecessor agency, the National Institute of Concessions. The ANI is in charge of planning, coordinating, contracting, administering, and evaluating concession projects and other forms of public-private partnerships for the design, construction, maintenance, operation, administration, and/or exploitation of public transportation infrastructure and other social and productive public infrastructure.
In particular, the ANI is authorized by Decree 4165 of 2011 to perform the following functions, among others:
| ● | identify, evaluate and propose concession initiatives or other forms of public services; |
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| ● | plan the procurement and execution of concession projects or other forms of public-private partnership for the design, construction, maintenance, operation, administration and/or exploitation of public infrastructure and related services identified by the Colombian government; |
| ● | define procedures for the stages of concession projects, including the planning, pre-awarding, awarding and evaluation of concession projects or other forms of public-private partnership; |
| ● | coordinate studies and surveys to define and collect information related to concession projects and other forms of public-private partnership, including studies related to tariffs, valuation and environmental matters; |
| ● | supervise the technical, legal and financial structuring of concession projects or other forms of public-private partnership in accordance with the policies established by national transportation and economic authorities; |
| ● | coordinate and manage development processes related to concession projects and other forms of public-private partnerships, including the procurement of licenses and permits and the negotiation and acquisition of properties; |
| ● | assess and monitor the concession projects and other forms of public-private partnership, as well as propose and implement measures related to risk management and mitigation; |
| ● | verify concession holders’ compliance with obligations set forth in concession agreements and in policies and guidelines from the relevant authorities; and |
| ● | coordinate with national authorities such as the National Institute of Roads and Aerocivil with respect to transportation structure of concession projects or other forms of public-private partnership. |
In 2013, the ANI replaced Aerocivil as the government agency responsible for managing and enforcing the Airplan concession agreement.
Role of Aerocivil
The Special Administrative Unit of Civil Aeronautics, or Aerocivil, is a government agency of the Colombian Ministry of Transportation. Aerocivil is the principal regulator of civil aviation, the aviation industry and the Colombian airspace. Aerocivil is authorized by Law 105 of 1993 and Decree 1294 of 2021 to perform the following functions, among others:
| ● | oversee and regulate air transport and air navigation in Colombia; |
| ● | collaborate with the Ministry of Transportation and other authorities to define policies, guidelines and general plans for civil aeronautics and air transport for the greater development of Colombia; |
| ● | monitor and review compliance with national and international policies regarding civil aviation and air transportation; |
| ● | promote and implement strategies to advance the development of services in the airport sector; |
| ● | evaluate compliance with aeronautical and air transport regulations at private airports or airports under concession; |
| ● | promote regional participation and mixed schemes in airport administration; |
| ● | establish and enforce fees and tariffs for the provision of aeronautical and airport services or those generated by concessions, authorizations, licenses or any other type of income or asset; and |
| ● | organize and operate aeronautical telecommunications. |
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In 2013, Aerocivil was replaced by ANI as the authority responsible for managing and enforcing the concession agreement with Airplan.
Role of the Olaya Herrera Airport Public Authority
The Olaya Herrera Airport Public Authority (Establecimiento Público Aeropuerto Olaya Herrera, or “AOH”), is a municipal public entity that, together with Aerocivil, granted the concession to Airplan in 2008. The AOH has jurisdiction over the physical location of the Enrique Olaya Herrera Airport in Medellín. The AOH executed an administrative contract with Aerocivil in 2007 to grant the Airplan concession. The AOH managed the concession jointly with Aerocivil and, after the substitution of Aerocivil for ANI to the 2007 administrative contract, does so with ANI. Pursuant to Decree 2299 of 2001, the purpose and function of AOH is the administration and development of a property granted to the municipality of Medellín for the operation of airport facilities. In order to achieve this mandate, the AOH is legally entitled to partner with individuals and public and private legal entities.
Scope of Colombian Concession and General Obligations
On March 13, 2008, (i) Aerocivil granted Airplan a concession to perform the administration, operation, commercial development, remodeling, maintenance and modernization of José María Córdova International Airport in Rionegro, Los Garzones Airport in Montería, Antonio Roldán Betancourt Airport in Carepa, El Caraño Airport in Quibdó, and Las Brujas Airport in Corozal; and (ii) AOH granted Airplan a concession to perform the administration, operation, commercial development, remodeling, maintenance and modernization of Olaya Herrera Airport in Medellín.
The concession agreement consists of four stages:
| ● | an initial 10-month stage known as the previous stage; |
| ● | an adaptation and modernization stage, which was intended to last five years, but was extended until all airports under the concession execute their investment plan for the development of the airports; |
| ● | a maintenance stage; and |
| ● | a reversion stage, in which the concession terminates and all real and other property under the concession reverts to the Colombian government. This property includes the assets of the project at the time the concession was granted, as well as the works and any assets incorporated into the concession by the concessionaire or those that the concessionaire has assigned to the operation, maintenance, commercial exploitation, and administration of the airport. |
We completed the adaptation and modernization stage on March 6, 2020 and we are currently in the maintenance stage, which we expect to end in May 2032. The overall duration of the concession depends on the revenues generated by the Colombian airports. In particular, the concession remains in effect until the date on which any of the following events occur: (i) the regulated revenues generated are equal to expected regulated revenues, provided that the concession agreement has been in force for at least 24 years or (ii) the concession agreement has been in force for at least 40 years, regardless of whether the regulated revenues generated are equal to the expected revenues. If our Colombian airports generate regulated revenues that are equal to the expected revenues before the end of the 24-year period, the concession agreement will remain in effect until the end of such period. Thus, management considers such factors in determining the final year of the concession term, which is 2032; however, in accordance with legal guidelines, the concession term may be extended until 2048 as long as the aforementioned requirements established by the grantor are met.
The concession agreement sets forth a series of obligations, including payment of concession fees (a fixed fee that the ANI cannot modify, equal to 19.0% of regulated revenues and non-regulated revenues invoiced by the concession holder), obtaining the ANI’s express approval for large construction, renovation or expansion projects, compliance with applicable environmental legislation, refraining from providing air transport services to passengers, payment of dispute resolution costs and expenses, obtaining necessary licenses and permits required for the activities under the concession and any related requirements regarding the administration, commercial exploitation, operation, resources management, adaptation and maintenance of the airports. We may not assign the concession without prior written authorization from the AOH and ANI.
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On June 25, 2008, in accordance with the concession agreement, for the administration of the resources of the concession and the payment of the obligations in the charge of the concessionaire, Airplan was required to enter into an agreement with Fiduciaria Bancolombia. The agreement established a trust, with Fiduciaria Bancolombia as trustee, to which all gross income received and capital and debt resources obtained for the purpose of the concession are transferred. Airplan and the grantor of the concessions are both beneficiaries of the trust, and the trust allocates the income and resources in accordance with the concession agreement.
The trustee maintains, in accordance with current accounting standards, a record of each and every one of the payments and transfers that are made to third parties or to the concessionaire itself, making the appropriate charges to the trust’s accounts. The foregoing is without prejudice to the assignment of regulated revenues and non-regulated revenues to the concessionaire and not the trust. The debt and capital resources obtained by the concessionaire are recorded in the concessionaire’s own accounts and only kept for record purposes in the trust because the trust is constituted for purposes of administering such resources.
The constitution of the trust was made through the execution of an irrevocable mercantile trust and administration contract whose term is the maximum term authorized by the Colombian Commercial Code.
On March 26, 2026, Airplan entered into Addendum No. 27 (Otrosí 27) to the concession agreement with ANI and the AOH (collectively, the “Grantors”), authorizing the execution of a project (the “Immediate Interventions to Address Unexpected Demand”) at José María Córdova International Airport. The project covers a series of capacity expansion and service-level improvement works, including domestic and international check-in facilities, a departing baggage handling system, security checkpoints, remote boarding areas, new aircraft platforms and immigration facilities. The estimated capital expenditure for this project is COP 164,611 million in current pesos (equivalent to COP 65,934 million in constant January 2007 pesos).
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The addendum provides for the compensation of capital expenditures, operating expenditures, replacement expenditures, and other investments associated with the project through an increase in the Expected Regulated Revenue (Ingreso Regulado Esperado, or “IRE”) using a marginal cash flow model, for a total IRE increase of COP 167,069 million in constant January 2007 pesos. In connection therewith, the addendum nullifies and replaces the external financing mechanism previously established under Addendum No. 26, with all project compensation to be provided exclusively through the increase in IRE.
Addendum No. 27 further modifies the concession’s existing threshold framework for supplementary works by replacing references to “Initial Expected Regulated Revenues” (Ingreso Regulado Esperado Inicial) with “Projected Expected Regulated Revenues” (Ingreso Regulado Esperado Proyectado, or “IREP”), allowing new investments to be incorporated without the prior threshold operating as a structural constraint and establishing the maximum concession term of May 15, 2048 as the sole operative limit on future additions. Finally, the addendum establishes a joint working group framework between Airplan and the Grantors to analyze, prioritize and incorporate future infrastructure improvements at the other airports covered by the concession, with a view to ensuring continuity of service and addressing ongoing infrastructure needs across the airport network.
Committed Investments
Airplan and the Colombian government reached agreements between 2014 and 2016 to add investment commitments in several of the airports operated by Airplan and extend the duration of the concession agreements. While the minimum duration of the concession agreements will expire in 2032, such duration may be extended up to 2048, depending on the regulated revenues received by our Colombian concessioned airports. In 2018, we amended the schedules and timeframe of certain investments in order to extend the execution period of certain works. However, the amounts of the investment commitments were not modified.
The following table presents a summary of the investment commitments for our Colombian airports as of December 31, 2025.
Committed Investments at Our Colombian Airports
Airport |
|
Project Description |
|
Amount Invested |
|
Status as of |
|
Montería |
|
Runway renovation |
|
10,762.2 |
|
Completed |
|
Corozal |
|
Runway renovation |
|
5,757.5 |
|
Completed |
|
Medellín (Rionegro) |
|
Runway renovation |
|
28,304.3 |
|
Completed |
|
Medellín |
|
Runway renovation |
|
8,321.3 |
|
Completed |
|
Quibdó |
|
Runway renovation |
|
16,322.1 |
|
Completed |
|
Carepa |
|
Runway renovation |
|
13,622.5 |
|
Completed |
|
Medellín (Rionegro) |
|
Expansion of domestic departures passenger terminal |
|
22,588.6 |
|
Completed |
|
Medellín (Rionegro) |
|
Expansion of international departures passenger terminal |
|
25,492.5 |
|
Completed |
|
Medellín (Rionegro) |
|
Connections building |
|
23,456.5 |
|
Completed |
|
Medellín (Rionegro) |
|
Expansion of international platform |
|
37,749.4 |
|
Completed |
|
Medellín (Rionegro) |
|
Expansion of cargo terminal |
|
99,725.2 |
|
Completed |
|
Quibdó |
|
Expansion of passenger terminal |
|
10,727.7 |
|
Completed |
|
Quibdó |
|
Construction of shopping center, hotel and library |
|
75,509.5 |
|
Completed |
|
Quibdó |
|
Expansion of runway and platform |
|
86,041.8 |
|
Completed |
|
Montería |
|
Expansion of passenger terminal |
|
29,288.8 |
|
Completed |
|
Non-mandatory Investments
In 2023, 2024 and 2025, we made certain non-mandatory investments in our Colombian airports, such as the acquisition of furniture, computer equipment, machinery, telecommunications, among others.
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The following is a table with the summary of such non-mandatory investments:
|
|
Payment of non-mandatory investments |
||||||||||
|
|
( in million ) |
||||||||||
|
|
2023 |
|
2024 |
|
2025 |
||||||
Airport |
|
COP |
|
USD(1) |
|
COP |
|
USD(2) |
|
COP |
|
USD(3) |
José María Córdova International Airport |
|
2,015.23 |
|
0.53 |
|
3,245.88 |
|
0.74 |
|
1,280.63 |
|
0.34 |
Enrique Olaya Herrera Airport |
|
385.72 |
|
0.10 |
|
968.90 |
|
0.22 |
|
211.22 |
|
0.06 |
Los Garzones Airport |
|
340.10 |
|
0.09 |
|
216.42 |
|
0.05 |
|
2,375.46 |
|
0.63 |
El Caraño Airport |
|
184.67 |
|
0.05 |
|
815.10 |
|
0.18 |
|
91.46 |
|
0.02 |
Antonio Roldán Betancourt Airport |
|
316.53 |
|
0.08 |
|
216.20 |
|
0.05 |
|
77.42 |
|
0.02 |
Las Brujas Airport |
|
271.59 |
|
0.07 |
|
97.00 |
|
0.02 |
|
32.77 |
|
0.01 |
TOTAL |
|
3,513.84 |
|
0.92 |
|
5,559.50 |
|
1.26 |
|
4,068.96 |
|
1.08 |
(1) |
These amounts have been translated at the rate of COP$ 3,822.05 per U.S.$1.00, which corresponds to the Colombian Peso Market Exchange Rate (Tasa de cambio representativa del mercado) as of December 31, 2023. |
(2) |
These amounts have been translated at the rate of COP$ 4,409.15 per U.S.$1.00, which corresponds to the Colombian Peso Market Exchange Rate (Tasa de cambio representativa del mercado) as of December 31, 2024. |
(3) |
These amounts have been translated at the rate of COP$ 3,757.08 per U.S.$1.00, which corresponds to the Colombian Peso Market Exchange Rate (Tasa de cambio representativa del mercado) as of December 31, 2025. |
Ownership Commitments and Restrictions
Pursuant to the concession agreement, Airplan is required to refrain from allowing Colombian state-owned entities to hold a majority stake in Airplan’s capital stock. Moreover, unless otherwise approved by the ANI and AOH, Airplan shall refrain from allowing the assignment of shares by shareholders that have contributed their financial capacity or technical expertise to fulfill the requirements during the tender process for the concession. Any such assignment may be authorized at the discretion of the ANI and AOH, provided that the transferee demonstrates equal or superior financial or technical indicators to those of the transferor.
Reporting, Information and Consent Requirements
Pursuant to the concession agreement, the ANI and the AOH appointed a supervisor to coordinate and oversee the execution of the Colombian concession. Such supervisor is authorized to give instructions regarding compliance with the concession agreement and to request any information the ANI or the AOH deems necessary to verify compliance with the obligations of the concession.
Airplan must provide the supervisor with the opinion of an independent auditor by April 30 of each year, along with the financial statements of the previous year. In addition, Airplan is required to provide financial statements to the supervisor and the ANI or the AOH on a quarterly basis.
During the adaptation and modernization stage of the concession, Airplan must present the status of the execution of the concession to the supervisor, the ANI and the AOH on a bimonthly basis. Similarly, during the maintenance stage, Airplan must provide the status of the execution of the concession on a bimonthly basis.
In the event that the supervisor requests any additional information related to the concession agreement, Airplan must deliver such information within three days following the date of the request.
Penalties and Termination of Colombian Concession
In the event of default or noncompliance with the terms of the Colombian concession agreement, ANI and the AOH may rescind the agreement and assess a penalty, the amount of which varies depending on the stage of the concession. Airplan is subject to a maximum penalty of U.S.$20 million, calculated at the prevailing exchange rate for the date of payment, may be enforced during the adaptation and modernization stage. During the maintenance stage, this maximum penalty may be reduced by 30.0%, 50.0% or 70.0%, depending on when the breach occurs.
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Under applicable Colombian laws and the terms of the concession, a concession may be terminated upon any of the following events:
| ● | expected regulated revenues are reached, after the concession has been in force for at least 24 years; |
| ● | the concession has been in force for 40 years, regardless of whether the concession holder has achieved the expected regulated revenues; |
| ● | the ANI and the AOH unilaterally terminate the concession, provided that any of the following events has occurred: |
| ● | the requirements of public service or a situation of public order require termination; |
| ● | dissolution of the concession holder; |
| ● | bankruptcy of the concession holder; |
| ● | default in payments, or the contractor commencing a bankruptcy proceeding or judicial seizures that significantly affect its ability to satisfy the concession agreement; or |
| ● | declaration of debarment by the ANI or the AOH as a result of a material breach by the concession holder that affects the concession’s execution in a grave manner, including in the event that the concession holder fails to remedy fines imposed due to noncompliance with the concession agreement. |
If the ANI or the AOH declares debarment, they are entitled to take a series of actions in addition to terminating the concession agreement, including collecting a penalty from Airplan and initiating a claim for any additional damage that they may have suffered due to breach of the concession. Debarment also prohibits the concession holder from contracting with a public entity for five years. This prohibition extends to the partners of the concession holder, in case of a partnership.
Grants of New Colombian Concessions
The Colombian government may grant new concessions to manage, operate and develop airports. Such concessions may be granted through a bidding process. Bidders can be domestic or international and may participate in public tenders either individually or by plural participation schemes.
Under such plural participation schemes, Colombian law authorizes the existence of consortiums, temporary unions and companies that expect to incorporate. The bidding process consists of several phases, including public notice and request for proposals, as well as technical viability and budget studies carried out by the contracting entity.
Once the bidding process begins, the bidders must present observations and comments to the request for proposals. Once the contracting entity releases the final version of the request for proposals, the bidders must present their proposals within the specified deadlines. The contracting entity reviews each proposal and releases a public assessment report with observations and comments for each bidder, who may submit amendments to proposals under the terms of the original request for proposals.
After the contracting entity releases a final assessment report, it can choose to award the project or decline to grant the project if none of the current proposals addressed the requirements of the request for proposal.
Environmental Matters
Our Colombian operations are subject to national, regional and municipal laws, regulations and official standards relating to the protection of the environment and natural resources. The main environmental laws include Law 1682 of 2013, which regulates the environmental regime applicable to transportation and infrastructure projects in Colombia and Decree 1076 of 2015, which regulates environmental licenses and permits.
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Under Law 1682 of 2013, concession holders assume responsibility for obtaining the necessary administrative authorizations to initiate activities under the concession agreement, including environmental licenses and permits. According to Decree 1076 of 2015, environmental licenses are required for both international and domestic airport projects, under the jurisdiction of the ANSLA and the Regional Autonomous Corporations, respectively, during both construction and operational phases. Airports that are not classified as national or international do not require environmental licenses, although they may still be subject to environmental obligations, such as permits,authorizations for the use of renewable natural resources or environmental plans filed with the ANI. Such environmental plans serve as guidance for the ANI and for environmental authorities to perform environmental oversight and follow-up on the various concession activities.
Modifications of existing environmental laws and regulations or the adoption of more stringent environmental laws and regulations in Colombia may result in the need for investments that are not currently provided for in our capital expenditures program and may otherwise result in a material adverse effect on our business, results of operations or financial condition.
Law 2173 of 2021 requires medium-sized and large companies registered in Colombia to implement tree planting programs. To date, this law has not entered into force because it has not been regulated by the Ministry of Environment and Sustainable Development through Resolution 1491 of 2025. This resolution defines the companies subject to compliance with the regulation, which are required to plant a minimum of two trees for each employee with an active employment contract as of December 31st of the immediately preceding year, in accordance with the provisisions of Article 22 of the Colombian Substantive Labor Code. The Resolution also establishes that this obligation must be fulfilled in areas designated by the environmental or district authority as “areas of life,” pursuant to a planting plan previously approved by the competent authority.
On July 11, 2024, by means of Decision C-280 of 2024, the Constitutional Court of Colombia declared the conditional constitutionality of the second paragraph of Article 57 of Law 99 of 1993, requiring private individuals to evaluate climate change impacts in their Environmental Impact Assessments (EIA). This requirement became enforceable for environmental license applications or renewals submitted as of August 1, 2025. As of the date of this report, the Ministry of Environment and Sustainable Development has not issued the terms of reference for the environmental impact assessment that incorporates climate change considerations, which has made it difficult for entities to implement the Constitutional Court’s decision. Aditionally, in November 2024, the Ministry of Environment and Sustainable Development published a draft resolution establishing a new methodology for the preparation of environmental studies, which includes aspects related to climate change; however, this regulation has not yet been formally issued and will apply to new applicants for environmental licenses. At present, Airplan is not required to amend its Environmental Management Plan, as the airport operates under an approved Environmental Management Plan and is not subject to an environmental licensing regime. Accordingly, Decision C-280 of 2024 does not impose immediate obligations on Airplan. However, should an Environmental Impact Assessment be required in the future in connection with a project subject to environmental licensing, climate change will be duly considered as a relevant environmental factor, in line with the Constitutional Court’s ruling.
On October 15, 2024, the Ministry of Environment and Sustainable Development issued Decree No. 1275 governing environmental matters related to operations and activities carried out in indigenous territories. Pursuant to this decree, indigenous authorities will become part of the governance mechanisms of the National Environmental System as it relates to territorial environmental planning and other regulation, following the guidelines set forth in Article 15 of ILO Convention 169. The decree is however silent in the allocation of powers to authorize or deny environmental permits in indigenous territories.
National Development Plan
In May 2023 the Colombian Congress approved the National Development Plan which regulates, among other things, territorial planning around watercourses, human safety, access to food, and climate change. The National Development Plan covers the years 2024 through 2026. The main focuses of the plan are: (i) environmental justice and water source protection, (ii) safety and social justice, (iii) nutrition access as a human right, (iv) productive transformation and climate action, (v) regional cooperation, and (vi) peace projects. The National Development Plan highly focused on environmental protection and proposes an agricultural reform that might have special implications in land use and distribution. The National Development Plan has established the need to reform several airports to enhance tourism in certain regions. One of the projects is an extension of José María Córdova Airport in Rionegro.
The following are the main modifications brought by the new National Development Plan affecting the aeronautical industry:
| ● | the land-use plans of the cities and municipalities shall address the location of airports and their specialized logistic infrastructures, |
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| ● | access of individuals with disabilities to airport facilities and transportation, |
| ● | the National Infrastructure Agency may structure, grant, execute, administer and evaluate concession projects and other forms of public-private partnerships (asociaciones público privadas), to expand the provision of productive social infrastructure, alongside territorial entities, |
| ● | the Government may establish grants on behalf of SATENA S.A., a state-owned airline, in connection with flights to, and from regions with low connectivity, |
| ● | Aerocivil may enter into agreements with regional and local governments and entities under which Aerocivil may co-invest with these entities in strategic high-impact projects, |
| ● | regulation in connection with airports located in borders, in association with the Foreign Relationships Ministry, |
| ● | concession fees paid by concessionaires to the ANI will be allocated as follows: (a) 20% of the fees will be transferred to the municipality or district in which the concessioned airport is located, and (b) the remaining 80% of the fees will be transferred to the ANI to fund activities essential for promoting and/or revitalizing airports including structuring, construction, rehabilitation, maintenance, and operation activities, 5% of which must be used to cover operational expenses of the ANI, |
| ● | a strengthening of transportation connectivity, |
| ● | a change in the tourism tariff charged in connection with the rendering of aeronautical services, which will be equal to one U.S. dollar (or its equivalent in COP) per passenger, |
| ● | at least 50% of the personnel hired to develop construction projects must be comprised of individuals of the local communities, |
| ● | the creation of public-popular partnership agreements, in which state entities may enter into contracts with individuals or non-profit organizations for the development public infrastructure projects, |
| ● | diversification of financing methods for infrastructure projects, |
| ● | the creation of a fund called “Fondo Colombia Potencia Mundial de la Vida”, through a public trust administered by the Ministry of Finance, for the agricultural reform, and |
| ● | differentiation in selection processes involving indigenous communities in relation to public projects. |
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ORGANIZATIONAL STRUCTURE
The following table sets forth our material consolidated subsidiaries as of December 31, 2025, including our direct and indirect ownership interest in each:
Subsidiary |
|
Ownership Interest |
|
Place of Organization |
Aeropuerto de Cancún, S.A. de C.V. |
|
100 % |
|
Mexico |
Aeropuerto de Cozumel, S.A. de C.V.(1) |
|
100 % |
|
Mexico |
Aeropuerto de Mérida, S.A. de C.V. |
|
100 % |
|
Mexico |
Aeropuerto de Huatulco, S.A. de C.V.(2) |
|
100 % |
|
Mexico |
Aeropuerto de Oaxaca, S.A. de C.V. |
|
100 % |
|
Mexico |
Aeropuerto de Veracruz, S.A. de C.V.(3) |
|
100 % |
|
Mexico |
Aeropuerto de Villahermosa, S.A. de C.V. |
|
100 % |
|
Mexico |
Aeropuerto de Tapachula, S.A. de C.V.(4) |
|
100 % |
|
Mexico |
Aeropuerto de Minatitlán, S.A. de C.V.(5) |
|
100 % |
|
Mexico |
Aerostar Airport Holdings, LLC (6) |
|
60 % |
|
Commonwealth of Puerto Rico |
Sociedad Operadora de Aeropuertos Centro Norte S.A.(7) |
|
100 % |
|
Colombia |
Servicios Aeroportuarios del Sureste, S.A. de C.V. |
|
100 % |
|
Mexico |
RH Asur, S.A. de C.V(8). |
|
100 % |
|
Mexico |
ASUR Commercial Airports LLC |
|
100 % |
|
Delaware |
(1) |
As of December 31, 2025, Aeropuerto de Cancún, S.A. de C.V., has an 18.1% equity participation in this airport. |
(2) |
As of December 31, 2025, Aeropuerto de Cancún, S.A. de C.V., has a 18.4% equity participation in this airport. |
(3) |
As of December 31. 2025, Aeropuerto de Cancún, S.A. de C.V., has a 30.0% equity participation in this airport. |
(4) |
As of December 31. 2025, Aeropuerto de Cancún, S.A. de C.V., has a 8.7% equity participation in this airport. |
(5) |
As of December 31, 2025, Aeropuerto de Cancún, S.A. de C.V., has a 19.7 equity participation in this airport. |
(6) |
As of December 31, 2025, Aeropuerto de Cancún, S.A. de C.V, has a 60.0% equity participation in this entity. On June 1, 2017, we began to consolidate Aerostar results into our financial statements. |
(7) |
As of December 31, 2023, Aeropuerto de Cancún, S.A. de C.V., has a 100% equity participation in this group. On October 19, 2017, we began to consolidate Airplan results into our financial statements. |
(8) |
As of December 31, 2025, Aeropuerto de Cancún, S.A. de C.V., has a 100% equity participation in this group. |
PROPERTY, PLANT AND EQUIPMENT
Pursuant to the Mexican General Law of National Assets, all real estate and fixtures in our Mexican airports are owned by the Mexican nation. Each of our Mexican concessions is scheduled to terminate in 2048, although each concession may be extended one or more times for up to an aggregate of an additional fifty years. The option to extend a concession is subject to (i) the favorable opinion of the Tax Ministry with respect to the profitability and concession fee relevant to each concession in the extended period (as more fully described in the Mexican Regulatory Framework section), (ii) our acceptance of any changes to such concession that may be imposed by the Ministry of Infrastructure, Communications and Transportation and (iii) our compliance with the terms of our current Mexican concessions. Upon expiration of our Mexican concessions, these assets automatically revert to the Mexican nation, including improvements we may have made during the terms of the concessions, free and clear of any liens and/or encumbrances, and we will be required to indemnify the Mexican government for damages to these assets, except for those caused by normal wear and tear.
Pursuant to the Airplan concession agreement, all real estate and fixtures in our Colombian airports are owned by the Colombian government. Management considers such factors in determining the final year of the concession term, which is 2032; however, in accordance with legal guidelines, the concession term may be extended until 2048 as long as the requirements established by the grantor are met. However, the concession may not be extended any further. The concession agreement establishes two categories of property: airport property (granted for the development and execution of the concession agreement) and aeronautical property (controlled and operated by the ANI and AOH for the purpose of facilitating air navigation). The concession does not grant the concession holder control of aeronautical property, including office buildings and other real estate outside of the Colombian airports. Upon termination of the concession, all real estate and fixtures in our Colombian airports will revert to the Colombian government.
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Our corporate headquarters are located in Mexico City, with a lease area of 742.64 square meters. We also rent two warehouses totaling 128 square meters located in Mexico City for storage. We maintain comprehensive insurance coverage that covers the principal assets of our airports and other property, subject to customary limits, against damage due to natural disasters, accidents or similar events. We do not maintain business interruption insurance.
Item 4A.Unresolved Staff Comments
None.
Item 5.Operating and Financial Review and Prospects
The following discussion should be read in conjunction with, and is entirely qualified by reference to, our consolidated financial statements and the notes to those financial statements. It does not include all of the information included in our consolidated financial statements. You should read our consolidated financial statements to gain a better understanding of our business and our historical results of operations.
Our consolidated financial statements included in this annual report are prepared in accordance with IFRS, as issued by IASB.
Overview
We operate nine airports in the southeastern region of Mexico under concessions granted by the Mexican government, six airports in Colombia under concessions granted by the Colombian government and the LMM Airport in San Juan, Puerto Rico and as of December 11, 2025, Terminals 1, 2, 3, 6, Tom Bradley International Terminal and Tom Bradley International Terminal West at LAX, Terminal 5 at ORD, and Terminal 8 and New Terminal One at JFK in the mainland United States (Los Angeles, Chicago and New York).
The majority of our revenues are derived from providing aeronautical services, which are generally related to the use of our airport facilities by airlines and passengers. For example, in 2023, 2024 and 2025, 59.0%, 59.3% and 52.1%, respectively, of our total revenues were derived from aeronautical services. Changes in our revenues from aeronautical services are principally driven by passenger and cargo volume at our airports. Our revenues from aeronautical services are also affected by the maximum rates we are allowed to charge at our Mexican airports under the price regulation system established by the Ministry of Infrastructure, Communications and Transportation. The system of price regulation that applies to our aeronautical revenues from our Mexican airports allows us to charge up to a maximum rate for each unit of traffic volume (which is measured in workload units) at each airport. Thus, increases in aeronautical services, such as passenger and cargo volume, and therefore the number of workload units that we handle, tend to generate greater revenues.
We also derive revenue from non-aeronautical activities, principally related to the commercial services offered at our airports, such as the leasing of space to restaurants, retailers and service providers. At our Mexican airports, revenues from non-aeronautical activities are not subject to the system of price regulation established by the Ministry of Infrastructure, Communications and Transportation. Thus, our non-aeronautical revenues are primarily affected by the mix of commercial services offered at our airports, the contracts that we have with the providers of those commercial services and our ability to increase the rates we charge to those service providers, and to a somewhat lesser extent, passenger traffic at our airports. While we expect that aeronautical revenues will continue to represent a majority of our future total revenues, growth of our revenues from commercial activities has exceeded, and we expect will continue to exceed, the growth rate of our aeronautical revenues.
107
Recent Developments
Acquisition of URW Airports, LLC
On July 30, 2025, our subsidiary ASUR US Commercial Airports, LLC, entered into a purchase agreement with Unibail-Rodamco-Westfield’s wholly-owned subsidiary Westfield Development, Inc. to acquire all of the issued and outstanding equity interest of URW Airports, LLC for an enterprise value of US$295 million. As of December 11, 2025, the purchase price was adjusted to US$308 million. The acquired business manages select commercial programs at several U.S. airports, including Terminals 1, 2, 3, 6, Tom Bradley International Terminal and Tom Bradley International Terminal West at LAX, Terminal 5 at ORD, and Terminal 8 and New Terminal One at JFK. The transaction closed on December 11, 2025. The acquisition represents our strategic expansion into the U.S. airport retail concessions market. We funded the transaction with cash on hand and a secured financing from JPMorgan Chase Bank, N.A. to maintain liquidity. See “Business Overview—U.S. Mainland Airports” for additional description of the acquired businesses.
Pursuant to the purchase agreement between URW Airports and ASUR US Commercial, the buyer may request an adjustment to working capital from the seller. This adjustment would impact the transaction price, and the buyer would be required to pay or receive the amount determined by this adjustment, based on evidence available 90 days after the closing date of the transaction. For additional information on purchase price allocation, see note 1.1 to our Financial Statements.
Acquisition of Companhia de Participações em Concessões (CPC Aeroportos)
On November 18, 2025, Aeropuerto de Cancún entered into a purchase agreement with Motiva Infraestrutura de Mobilidade S.A. to acquire up to 100% of the shares representing the capital stock of Companhia de Participações em Concessões (CPC Aeroportos), for approximately US$936 million. CPC Aeroportos is an operator of 20 airports in Latin America, including 17 in Brazil, one in Costa Rica, one in Ecuador and one in Curaçao, and is a wholly-owned subsidiary of Motiva de Infraestructura de Mobilidade, S.A. This transaction is expected to expand our international network, increase passenger traffic, and increase its exposure to other regions by adding four new markets in Latin America and the Caribbean, including Brazil, currently the largest aviation market in Latin America in terms of passenger traffic. The closing of the transaction, which is expected to occur during the second quarter of 2026, is subject to customary conditions precedent, including various regulatory approvals related to airport infrastructure and economic competition in Brazil. We expect to secure financing from JPMorgan Chase Bank, N.A. to fund the transaction, in addition to cash on hand.
We participated in a tax amnesty program implemented by the Mexican federal government
When bidding was concluded for the shares of the Mexican airport group that became ASUR, the Ministry of Infrastructure, Communications and Transportation agreed that the concessionaire could amortize the value of the concession at an annual rate of 15.0% for tax purposes. Contrary to this decision, in February 2012, the Ministry of Finance and Public Credit determined that this agreement was invalid and that the rate should instead be 2.0%. We filed an appeal in April 2012 to overturn this determination. In May 2013, while our appeal was pending, the Mexican federal government implemented a tax amnesty program for federal taxes, in which we participated by paying Ps. 128.3 million to settle the claim with the Ministry of Finance and Public Credit solely with respect to income taxes. Our participation in the tax amnesty program, however, had no impact on our separate appeal of the amount of distributions owed by the Company under the mandatory employee statutory profit - sharing regime established by Mexican federal labor laws. In September 2023, Quintana Roo’s Tax Authority determined that the Company owed Ps. 99.8 million in distributions under the mandatory employee statutory profit - sharing regime. We have appealed this resolution via an annulment action which, as of April 16, 2026, is still pending to be resolved. If we were to lose the appeal, we estimate that we would be required to pay an additional Ps. 99.8 million in distributions under the mandatory employee statutory profit - sharing regime.
Note on URW Airports Acquisition
On December 11, 2025, we, through our subsidiary ASUR US Commercial Airports LLC completed the acquisition of URW Airports. As a result, the consolidated financial statements of the Company for the year ended December 31, 2025 include the results of operations and financial position of ASUR US Commercial Airports LLC only for the period from December 11, 2025 to December 31, 2025 (the “Stub Period”), representing approximately 20 days of consolidated operations.
108
Given the limited duration of the Stub Period (and therefore the limited contribution of ASUR US Commercial Airports LLC to the Company’s consolidated results of operations, financial position, and cash flows for the year ended December 31, 2025), the discussion and analysis of the Company’s operating and financial results set forth in this Item 5 does not separately address the financial contribution of ASUR US Commercial Airports LLC during the year ended December 31, 2025. Investors should note that the financial results for the year ended December 31, 2025 are therefore not fully reflective of the ongoing consolidated results of the Company following the acquisition, and the results of ASUR US Commercial Airports LLC will be reflected on a full-year basis in the Company’s consolidated financial statements for the year ending December 31, 2026.
In accordance with International Financial Reporting Standard 3 “Business Combinations” (IFRS 3), the URW Airports acquisition is considered a business combination and, therefore, has been recorded using the purchase method established in IFRS 3. The acquisition was recorded by allocating the total of the assets acquired and liabilities assumed, based on the fair values determined at the acquisition date. The excess of the acquisition cost over the net fair values of the assets acquired and liabilities assumed has been recorded as goodwill. For additional information on purchase price allocation, see note 1.1 to our Financial Statements.
Passenger Traffic Volume and Composition
Our principal source of revenues at our Mexican and Colombian airports is passenger charges collected from airlines for each passenger departing from the airport terminals we operate (excluding diplomats, infants and transfer and transit passengers). In 2023, 2024 and 2025, passenger charges represented 77.4%, 77.8% and 79.2% of our aeronautical services revenues and 45.7%, 46.1% and 41.3%, respectively, of our consolidated revenues. Accordingly, the main factor affecting our results of operations is the number of passengers using our airports.
Volumes in Mexico
In 2023, 2024 and 2025, approximately 48.9%, 47.8% and 48.5%, respectively, of the passengers traveling through our Mexican airports were domestic. The total number of Mexican domestic passengers for 2025 decreased 0.6% as compared to 2024. In 2023, 2024 and 2025, 51.1%, 52.2% and 51.5% of the passengers traveling through our Mexican airports were international. During 2023, 2024 and 2025, 27.8%, 29.6% and 27.3%, respectively, of our total revenues were derived from passenger charges collected from international passengers traveling through our airports.
Of the international passengers traveling through our Mexican airports, a majority have historically traveled on flights to or from the United States. In 2023, 2024 and 2025, for example, 31.6%, 32.4% and 31.6% of the total passengers and 61.8%, 62.2% and 61.3%, respectively, of the international passengers traveling through our Mexican airports arrived or departed on flights originating in or departing to the United States. As a consequence, our results of operations are substantially influenced by U.S. political, economic and other conditions, particularly trends and events affecting leisure travel and consumer spending. For more information on the potential influence of U.S. political and economic conditions, see “Item 3—Key Information—Risk Factors—Changes in U.S. immigration and border policy could adversely affect passenger traffic to and from Mexico and Colombia.”
In 2025, we had 40.6 million passengers travel through our Mexican airports.
Volumes in Puerto Rico
The majority of passenger traffic volume in the LMM Airport consists of domestic passengers traveling from the mainland United States. In 2025, 87.3% and 12.7% of the passengers traveling through the LMM Airport were domestic and international, respectively. As with Mexico, our results in Puerto Rico are substantially influenced by economic and political developments in the United States. For more information, see “Item 3—Risk Factors—Risks Related to Our Operations—Hurricanes and other natural disasters have adversely affected our business in the past and could do so again in the future.”
In 2025, we had 13.6 million passengers travel through the LMM Airport.
109
Volumes in Colombia
The majority of passenger traffic volume in our Colombian airports consists of domestic passengers. In 2025, 76.5% and 23.5% of the passengers traveling through our Colombian airports were domestic and international, respectively. Of the international passengers traveling through our Colombian airports, approximately 34.4% traveled on flights originating in or departing to the United States. Similar to Mexico and Puerto Rico, our results in Colombia may be influenced by economic and political developments in the United States.
In 2025, we had 17,320.4 thousand passengers travel through our Colombian airports.
Classification of Revenues and Price Regulation
For financial reporting purposes, we classify our revenues into three categories: revenues from aeronautical services, revenues from non-aeronautical services and revenues from construction services. Our revenues from aeronautical services are derived from passenger charges, landing charges, aircraft parking charges, charges for airport security services and for the use of passenger walkways. Our revenues from non-aeronautical services are associated with the leasing of space in our airports to airlines, retailers and other commercial tenants, access fees collected from third parties providing complementary services at our airports and related miscellaneous sources. In addition, we derive construction revenues from the services we are deemed to provide by making capital improvements to concessioned assets.
Revenues from our Mexican and Colombian airports are subject to a “dual-till” price regulation system. Under this system, a substantial portion of our revenues, such as revenues from passenger charges, landing charges, aircraft parking charges and access fees from third parties providing services at our airports, are regulated. Based on our classification of revenues for financial reporting purposes, all of our revenues from aeronautical services and certain of our revenues from non-aeronautical services, such as access fees charged to third parties providing complementary services in our Mexican airports, are regulated by the relevant authorities. The system of price regulation applicable to our Mexican airports establishes an annual maximum rate in pesos for each airport, which is the maximum annual amount of revenues per workload unit (equal to one passenger or 100 kilograms (220 pounds) of cargo) that we may earn at that airport from regulated services. The maximum rates for our Mexican airports have been determined for each year through December 31, 2024. For a description of the latest amendment to the Mexican tariff base regulation effective as of October 2023, see “Item 3. Key Information—Risk Factors— Risks Related to the Regulation of Our Business— The price regulatory system applicable to our Mexican airports imposes maximum rates for each airport—The price regulatory system does not guarantee that our consolidated results of operations, or that the results of operations of any Mexican airport, will be profitable.” Aerocivil in Colombia establishes the fees and tariffs for the provision of aeronautical revenues at our Colombian airports. Each year, our subsidiary Airplan is required to update the fees and tariffs related to its concession, which are then submitted to Aerocivil for its review and approval.
110
Aeronautical revenues at the LMM Airport are not directly regulated by the government. However, aeronautical revenues at the LMM Airport are limited by the terms of the Airport Use Agreements, which govern the relationship between our subsidiary Aerostar and the principal airlines serving the LMM Airport. Pursuant to the agreement, Aerostar is entitled to an annual contribution of U.S.$62 million during the first five years of the term. From year six onward, the total annual contribution for the prior year increases in accordance with an adjusted consumer price index factor based on the U.S. non-core consumer price index.
In 2023, 2024 and 2025, 61.5%, 62.1% and 52.5%, respectively, of our total revenues from our Mexican operations and 6.5%, 6.5% and 5.7%, respectively, of our revenues from non-aeronautical services at our Mexican airports were earned from regulated sources of revenues. Revenues associated with leased space in our terminals (other than space leased to airlines and other space deemed essential to our Mexican airports by the Ministry of Infrastructure, Communications and Transportation) and construction revenues are currently not regulated under the price regulation system established by the Ministry of Infrastructure, Communications and Transportation in Mexico. In 2025, 71.7% of our total revenues from our Colombian operations were earned from regulated sources of revenues. Aerocivil in Colombia establishes the tariffs applicable to regulated sources of revenue at our Colombian airports.
The following table sets forth our revenues for the years ended December 31, 2023, 2024 and 2025.
|
|
Year ended December 31, |
|
||||||||||
|
|
2023 |
|
2024 |
|
2025 |
|
||||||
|
|
(millions of Mexican pesos) |
|
||||||||||
|
|
Amount |
|
Percent |
|
Amount |
|
Percent |
|
Amount |
|
Percent |
|
Regulated Revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Airport Services(1) |
|
15,670.4 |
|
60.7 |
% |
19,050.0 |
|
60.8 |
% |
19,794.8 |
|
53.2 |
% |
Non-regulated Revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Access fees from non-permanent ground transportation(3) |
|
102.0 |
|
0.4 |
% |
108.9 |
|
0.3 |
% |
114.0 |
|
0.3 |
% |
Car parking and related access fees |
|
458.0 |
|
1.7 |
% |
508.3 |
|
1.6 |
% |
568.6 |
|
1.5 |
% |
Other fees |
|
18.7 |
|
0.1 |
% |
21.4 |
|
0.1 |
% |
21.6 |
|
0.1 |
% |
Commercial Services(3) |
|
8,017.0 |
|
31.0 |
% |
8,526.1 |
|
27.2 |
% |
9,106.5 |
|
24.5 |
% |
Other Services |
|
252.7 |
|
1.0 |
% |
269.8 |
|
0.9 |
% |
281.6 |
|
0.7 |
% |
Other Revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Construction Services(2) |
|
1,302.6 |
|
5.1 |
% |
2,848.3 |
|
9.1 |
% |
7,350.3 |
|
19.7 |
% |
Total |
|
25,821.4 |
|
100.0 |
% |
31,332.8 |
|
100.0 |
% |
37,237.4 |
|
100.0 |
% |
(1) |
Includes access fees charged to third parties providing complementary services in our airports, which are classified as non-aeronautical revenues for financial reporting purposes, as well as aeronautical revenues in Puerto Rico, which, although unregulated, are limited by a long-term contract with our airline clients at that airport. |
(2) |
We are required to account for the revenues and expenses relating to those services. In our case, because we hire a third party to provide construction and upgrade services, our revenues relating to construction or upgrade services are equal to our expenses for those services. |
(3) |
Non-regulated commercial revenues: Access fees from non-permanent ground transportation, car parking and related access fees and commercial services, make up the non-aeronautical commercial revenues and include commercial revenues from ASUR US since December 11, 2025. |
Aeronautical Revenue
Mexican Aeronautical Revenues
The system of price regulation applicable to aeronautical revenues at our Mexican airports establishes a maximum rate in Mexican pesos for each airport for each year in a five-year period, which is the maximum annual amount of revenue per workload unit (equal to one terminal passenger or 100 kilograms (220 pounds) of cargo) that we may earn at that airport from aeronautical services. The maximum rates for our Mexican airports have been determined for each year through December 31, 2028. Therefore, our aeronautical revenues are determined largely by the number of workload units at each of our Mexican airports, which is primarily driven by passenger traffic levels. Aeronautical revenues differ among our Mexican airports to the extent that passenger traffic levels differ among these airports.
111
Under the Mexican regulatory system applicable to our aeronautical revenues, we can set the specific price for each category of aeronautical services every six months (or more frequently if accumulated inflation since the last adjustment exceeds 5.0%), as long as the total aeronautical revenue per workload unit each year at each of our Mexican airports does not exceed the maximum rate at that airport for that year. The specific prices we charge for regulated services are based on various factors, including projections of passenger traffic volumes, capital expenditures estimated in our Mexican master development programs, the Mexican producer price index (excluding petroleum) and the value of the peso relative to the U.S. dollar. We currently set the specific price for each category of aeronautical services after negotiating with our principal airline customers. Under these agreements, our specific prices are structured such that the substantial majority of our aeronautical revenues are derived from passenger charges, and we expect this to continue to be the case in future agreements.
In 2023, 2024 and 2025, passenger charges at our Mexican airports represented 60.8%, 61.7% and 61.4% of our aeronautical service revenues and 35.8%, 36.6% and 32.0%, respectively, of our consolidated revenues.
Historically, we have set our prices for regulated services at our Mexican airports as close as possible to the maximum rates allowed in any given year, and we expect to pursue this pricing strategy in the future. There can be no assurance that we will be able to collect most of the revenue we are entitled to earn from services subject to price regulation in the future.
As noted above, our regulated revenues at each Mexican airport are subject to a maximum rate established by the Ministry of Infrastructure, Communications and Transportation. To avoid exceeding the maximum rate established at an airport for any given year, we have historically taken measures to ensure that the maximum rates are not exceeded at year end, including reducing prices during the latter part of the year and issuing credit notes or discounts to customers as price adjustments. These price adjustments or discounts constitute a reduction of the selling prices (i.e., the amounts originally billed to customers for services rendered), and therefore, are characterized as a reduction of the related revenues recognized during the year. All discounts and credit notes are issued and recorded in the same year as the service is provided. In, 2023, 2024, and 2025 we did not issue rebates in significant amounts.
Colombian Aeronautical Revenues
Our Colombian airports’ revenues from passenger charges for the use of terminals, takeoff, landing and aircraft movement charges, charges for boarding bridges and aircraft parking charges are regulated by the National Infrastructure Agency pursuant to its concession agreement with our subsidiary Airplan. In 2025, passenger charges at our Colombian airports, represented 13.8% of our consolidated aeronautical revenues and 7.2% of our consolidated revenues. Our subsidiary Airplan charges tariffs to airlines (relating to domestic routes, international routes and development). The tariffs are established by Aerocivil, through Resolution 04530 of 2007 and will expire between 2019 and 2032. As of December 31, 2025, the following airlines at our Colombian airports were subject to such tariffs: Clic, Satena, Moon Flight, Avianca, Aerea, America´s Air, Custom Aviation, Hangar 29, Helijet, Heligolfo, Heliservice, Helistar, Helisur, Pacifica de Aviación, SASA, SARPA, SEARCA, Avianca Ecuador, Aerorepública (COPA), Wingo, LATAM, Spirit, American Airlines, Aeroméxico, JetBlue, Air Europa, Ara Jet, Jet Smart Chile, Colombia y Perú, Jet Air, Avoir, Ez Air, United Airlines, Tampa Cargo, Fedex, LAN Cargo, among others. See “Item 4—Information on the Company—Business Overview—Colombia.”
Puerto Rican Aeronautical Revenues
As noted above, aeronautical revenues from our LMM Airport are limited by the Airport Use Agreements among Aerostar and the principal airlines serving the LMM Airport. Aeronautical revenues include revenues from passenger charges for the use of terminals, landing and aircraft movement charges and aircraft parking charges. We include aeronautical revenues from LMM Airport in our calculation of total regulated revenues. In 2025, passenger charges at our LMM Airport, represented 4.0% of our consolidated aeronautical revenues and 2.1% of our consolidated revenues.
112
The following table sets forth our consolidated revenue from aeronautical services from all airports for the years indicated.
Aeronautical Revenue
|
|
Year ended December 31, |
|
||||||||||
|
|
2023 |
|
2024 |
|
2025 |
|
||||||
|
|
(millions of Mexican pesos) |
|
||||||||||
|
|
Amount |
|
Percent |
|
Amount |
|
Percent |
|
Amount |
|
Percent |
|
Aeronautical Revenue: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Passenger charges |
|
11,789.9 |
|
77.4 |
% |
14,454.6 |
|
77.7 |
% |
15,364.5 |
|
79.3 |
% |
Landing charges |
|
1,391.8 |
|
9.1 |
% |
1,568.8 |
|
8.4 |
% |
1,418.1 |
|
7.3 |
% |
Aircraft parking charges |
|
1,196.3 |
|
7.9 |
% |
1,594.4 |
|
8.6 |
% |
1,662.2 |
|
8.6 |
% |
Airport security charges |
|
152.1 |
|
1.0 |
% |
178.0 |
|
1.0 |
% |
181.3 |
|
0.9 |
% |
Passenger walkway charges |
|
693.0 |
|
4.6 |
% |
793.3 |
|
4.3 |
% |
761.7 |
|
3.9 |
% |
Total Aeronautical Revenue |
|
15,223.1 |
|
100.0 |
% |
18,589.1 |
|
100.0 |
% |
19,387.8 |
|
100.0 |
% |
The following table sets forth our Mexican revenue from aeronautical services per workload unit for the years indicated. Our Colombian and Puerto Rico airports are not regulated under workload units.
|
|
Year ended December 31, |
|
||||||
|
|
2023 |
|
2024 |
|
2025 |
|
||
|
|
(millions of Mexican pesos) |
|
||||||
|
|
Amount |
|
Amount |
|
Amount |
|
Change(1) |
|
Other information: |
|
|
|
|
|
|
|
|
|
Total workload units(2) |
|
44.2 |
|
42.4 |
|
41.5 |
|
(2.1) |
% |
Aeronautical Revenue |
|
11,247.6 |
|
13,915.7 |
|
14,273.0 |
|
2.6 |
% |
Aeronautical Revenue per workload unit(3) |
|
254.5 |
|
328.2 |
|
343.9 |
|
4.8 |
% |
(1) |
As compared to the previous year. |
(2) |
In millions. Under the regulation applicable to our aeronautical revenues, a workload unit is equivalent to one terminal passenger or 100 kilograms (220 pounds) of cargo. |
(3) |
Aeronautical revenues per workload unit are expressed in Mexican pesos (not millions of Mexican pesos). |
The following table sets forth the number of passengers paying passenger charges for the years indicated.
|
|
Year ended December 31, |
|
||||||
|
|
|
|
|
|
|
|
% Change |
|
|
|
2023 |
|
2024 |
|
2025 |
|
2024-2025 |
|
|
|
(expressed in thousands, except percentages) |
|
||||||
Cancun |
|
16,162.8 |
|
15,072.7 |
|
14,497.8 |
|
(3.8) |
% |
Merida |
|
1,812.4 |
|
1,828.7 |
|
1,927.8 |
|
5.4 |
% |
Villahermosa |
|
693.2 |
|
732.2 |
|
707.1 |
|
(3.4) |
% |
Other Mexican airports |
|
2,850.3 |
|
2,926.1 |
|
2,894.3 |
|
(1.1) |
% |
San Juan |
|
6,084.8 |
|
6,615.8 |
|
6,819.5 |
|
3.1 |
% |
Colombia |
|
7,263.0 |
|
8,113.9 |
|
8,416.0 |
|
3.7 |
% |
Total |
|
34,866.5 |
|
35,289.5 |
|
35,262.5 |
|
(0.1) |
% |
At our Mexican and Colombian airports, we earn passenger charges from each departing passenger at our airports other than transit passengers, diplomats and infants.
113
Non-Aeronautical Revenue
Our revenues from non-aeronautical services are principally derived from commercial activities, such as leasing of space in our airports to airlines, leasing of space to, and collection of royalties from, third parties operating stores and providing commercial services at our airports and access fees charged to operators of automobile parking facilities and providers of complementary services, and non-commercial activities, such as leasing of space essential for the operation of airlines and access fees from non-permanent ground transportation and complementary service providers, including providers of ramp and handling services, catering, maintenance services and repair and related activities that support air carriers. Most of our revenues from non-aeronautical services are not subject to price regulation under our dual-till price regulation system.
Because non-aeronautical revenues are determined in part by passenger traffic levels, the differences in non-aeronautical revenues between our airports are determined in part by passenger traffic levels. Differences in non-aeronautical revenues are also determined by the mix of commercial services available at an airport. Because international passengers, many of whom are vacation travelers, tend to use more expensive commercial services, like souvenir shops and international food and beverage vendors, airports that have higher levels of international passenger traffic, like our Cancún Airport, tend to generate higher amounts of non-aeronautical revenues.
The following table sets forth our revenue from non-aeronautical activities for the years indicated.
|
|
Non-Aeronautical Revenues |
|
||||||||||
|
|
Year ended December 31, |
|
||||||||||
|
|
2023 |
|
2024 |
|
2025 |
|
||||||
|
|
(millions of Mexican pesos) |
|
||||||||||
|
|
Amount |
|
Percent |
|
Amount |
|
Percent |
|
Amount |
|
Percent |
|
Non-aeronautical Services: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Commercial |
|
8,576.8 |
|
92.3 |
% |
9,143.4 |
|
92.4 |
% |
9,788.9 |
|
93.3 |
% |
Leasing of space |
|
7,939.4 |
|
85.4 |
% |
8,373.3 |
|
84.6 |
% |
8,752.1 |
|
83.4 |
% |
Access fee |
|
102.0 |
|
1.1 |
% |
108.9 |
|
1.1 |
% |
114.0 |
|
1.1 |
% |
Other |
|
535.4 |
|
5.8 |
% |
661.2 |
|
6.7 |
% |
922.8 |
|
8.8 |
% |
Non Commercial |
|
719.1 |
|
7.7 |
% |
751.9 |
|
7.6 |
% |
710.4 |
|
6.7 |
% |
Leasing of space |
|
176.4 |
|
1.9 |
% |
183.4 |
|
1.8 |
% |
197.4 |
|
1.9 |
% |
Access fee |
|
335.7 |
|
3.6 |
% |
345.4 |
|
3.5 |
% |
277.6 |
|
2.6 |
% |
Other |
|
207.0 |
|
2.2 |
% |
223.1 |
|
2.3 |
% |
235.4 |
|
2.2 |
% |
Total Non-aeronautical Revenue |
|
9,295.9 |
|
100.0 |
% |
9,895.3 |
|
100.0 |
% |
10,499.3 |
|
100.0 |
% |
The following table sets forth other information about our passengers and revenues for the years indicated:
|
|
Year ended December 31, |
|
||||||
|
|
2023 |
|
2024 |
|
2025 |
|
||
|
|
(millions of Mexican pesos) |
|
||||||
|
|
Amount |
|
Amount |
|
Amount |
|
Change(1) |
|
Other information: |
|
|
|
|
|
|
|
|
|
Total Terminal Pasengers(2) |
|
70.6 |
|
71.3 |
|
71.6 |
|
0.4 |
% |
Total Non-aeronautical revenues |
|
9,295.9 |
|
9,895.3 |
|
10,499.3 |
|
6.1 |
% |
Non-aeronautical revenue per terminal passenger(3) |
|
131.6 |
|
138.7 |
|
146.6 |
|
5.7 |
% |
(1) |
As compared to previous year. |
(2) |
In millions. Excludes transit and general aviation passengers. |
(3) |
Revenue per passenger amounts are expressed in Mexican pesos (not millions of Mexican pesos). |
114
Our commercial revenues consist primarily of revenues from duty-free shops, food and beverage establishments, retail stores, advertising revenues, parking lots, car rental companies, banking and currency exchange services, teleservices and ground transportation.
The following table sets forth our revenue from commercial activities for the years indicated.
|
|
Year ended December 31, |
|
||||||
|
|
2023 |
|
2024 |
|
2025 |
|
||
|
|
(millions of Mexican pesos) |
|
||||||
|
|
Amount |
|
Amount |
|
Amount |
|
Change |
|
Commercial Revenues: |
|
|
|
|
|
|
|
|
|
Duty-Free Shops |
|
3,118.1 |
|
3,177.7 |
|
3,360.7 |
|
5.8 |
% |
Food and Beverage |
|
1,419.9 |
|
1,457.7 |
|
1,607.4 |
|
10.3 |
% |
Retail Stores |
|
1,073.1 |
|
1,183.1 |
|
1,104.8 |
|
(6.6) |
% |
Advertising Revenues |
|
206.9 |
|
236.6 |
|
208.5 |
|
(11.9) |
% |
Parking Lots |
|
458.0 |
|
508.3 |
|
568.6 |
|
11.9 |
% |
Car Rental Companies |
|
1,230.5 |
|
1,404.5 |
|
1,536.5 |
|
9.4 |
% |
Banking and Currency Exchange services |
|
103.3 |
|
98.5 |
|
93.9 |
|
(4.7) |
% |
Teleservices |
|
16.1 |
|
16.1 |
|
26.1 |
|
62.1 |
% |
Ground Transportation |
|
144.7 |
|
166.5 |
|
187.0 |
|
12.3 |
% |
Other Services |
|
806.2 |
|
894.4 |
|
1,095.4 |
|
22.5 |
% |
Total |
|
8,576.8 |
|
9,143.4 |
|
9,788.9 |
|
7.1 |
% |
The Mexican Ministry of Infrastructure, Communications and Transportation does not classify certain of these revenues as “commercial revenues.” Accordingly, the following table sets forth the reconciliation between commercial revenues classified according to the requirements of the Ministry of Infrastructure, Communications and Transportation and commercial revenues classified according to IFRS for the years indicated.
|
|
Year ended December 31, |
|
||||||
|
|
2023 |
|
2024 |
|
2025 |
|
||
|
|
(millions of Mexican pesos) |
|
||||||
|
|
Amount |
|
Amount |
|
Amount |
|
Change |
|
Non-aeronautical Services:(1) |
|
|
|
|
|
|
|
|
|
Commercial |
|
8,089.1 |
|
8,602.0 |
|
9,187.0 |
|
6.8 |
% |
Commercial Revenues:(2) |
|
|
|
|
|
|
|
|
|
Parking Lots |
|
458.0 |
|
508.3 |
|
568.6 |
|
11.9 |
% |
Other Services |
|
29.7 |
|
33.1 |
|
33.3 |
|
0.6 |
% |
Total |
|
8,576.8 |
|
9,143.4 |
|
9,788.9 |
|
7.1 |
% |
(1) |
Classified according to the requirements of the Ministry of Infrastructure, Communications and Transportation. |
(2) |
Classified according to IFRS. |
Construction Services Revenue
Under IFRS, an operator of a service concession that is required to make capital improvements to concessioned assets, such as us, is deemed to provide construction or upgrade services. Revenues from construction services are recognized in accordance with the methods prescribed (input method) for measuring progress towards completion of each project, as approved by the grantor. Improvements made are expected to complement the infrastructure of the airports operated by the Company. Revenues from construction services are not subject to regulation under our dual-till price regulation system in Mexico, Colombia and Puerto Rico.
115
Operating Costs
The operating costs at our airports are influenced principally by two factors: fixed costs and variable costs. Fixed costs are the costs of operating an airport, such as most of our depreciation and amortization, administrative expenses, maintenance, safety, security and insurance, utilities and employee costs, which are primarily dependent on the size of the airport and do not vary with the number of passengers. Variable costs are dependent on passenger traffic, or, in the case of our technical assistance and concession fees, on financial results that are primarily determined by passenger traffic. We do not believe that there are material differences in these factors among the airports that we operate, other than differences relating to passenger traffic volume (at busier airports, fixed costs may be spread among a greater number of passengers).
The following table sets forth our operating costs and certain other related information for the years indicated.
Operating Costs
|
|
Year ended December 31, |
|
||||||
|
|
2023 |
|
2024 |
|
2025 |
|
||
|
|
(millions of Mexican pesos) |
|
||||||
|
|
Amount |
|
Amount |
|
Amount |
|
Change |
|
Operating Costs: |
|
|
|
|
|
|
|
|
|
Cost of services: |
|
|
|
|
|
|
|
|
|
Employee costs |
|
1,326.9 |
|
1,513.1 |
|
1,717.7 |
|
13.5 |
% |
Maintenance |
|
815.8 |
|
829.5 |
|
951.6 |
|
14.7 |
% |
Safety, security and insurance |
|
705.6 |
|
864.0 |
|
951.4 |
|
10.1 |
% |
Utilities |
|
529.0 |
|
579.0 |
|
624.6 |
|
7.9 |
% |
Other |
|
1,298.2 |
|
1,578.0 |
|
1,935.5 |
|
22.7 |
% |
Total cost of services |
|
4,675.5 |
|
5,363.6 |
|
6,180.8 |
|
15.2 |
% |
Costs of construction |
|
1,302.6 |
|
2,848.3 |
|
7,350.3 |
|
158.1 |
% |
General and administrative expenses |
|
319.2 |
|
319.6 |
|
346.0 |
|
8.3 |
% |
Technical assistance fees |
|
715.5 |
|
400.8 |
|
400.9 |
|
0.0 |
% |
Government concession fees |
|
1,496.1 |
|
2,557.7 |
|
2,704.7 |
|
5.7 |
% |
Depreciation and amortization: |
|
|
|
|
|
|
|
|
|
Depreciation(1) |
|
147.1 |
|
178.6 |
|
406.8 |
|
127.8 |
% |
Amortization |
|
1,922.1 |
|
2,144.4 |
|
2,854.0 |
|
33.1 |
% |
Total depreciation and amortization |
|
2,069.2 |
|
2,323.0 |
|
3,260.8 |
|
40.4 |
% |
Total operating costs |
|
10,578.1 |
|
13,813.0 |
|
20,243.5 |
|
46.6 |
% |
Other Information: |
|
|
|
|
|
|
|
|
|
Total workload units(2) |
|
44,220.1 |
|
42,375.8 |
|
41,512.2 |
|
(2.0) |
% |
Cost of services per workload unit(3) |
|
61.5 |
|
68.4 |
|
79.4 |
|
16.1 |
% |
Cost of services margin(4) |
|
14.3 |
% |
12.5 |
% |
11.8 |
% |
(5.6) |
% |
(1) |
Reflects depreciation of fixed assets. |
(2) |
In thousands. Under the regulation applicable to our aeronautical revenues at our Mexican airports, a workload unit is equivalent to one terminal passenger or 100 kilograms (220 pounds) of cargo. Our Colombian and Puerto Rican airports are not regulated by workload unit. |
(3) |
Cost of services per workload unit at our Mexican airports are expressed in Mexican pesos (not millions of Mexican pesos). Our Colombian and Puerto Rican airports are not regulated by workload unit. |
(4) |
Cost of services at our Mexican airports divided by total revenues, expressed as a percentage. |
Cost of Services
Our cost of services consists primarily of employee, maintenance, safety, security and insurance costs, as well as utilities (a portion of which we recover from our tenants) and other miscellaneous expenses.
116
Employee Statutory Profit Sharing
Employee Profit Sharing in Mexico
We are subject to the PTU established by Mexican federal labor laws. Under this regime, 10.0% of a company’s unconsolidated annual profits, as calculated for tax purposes, must be distributed among its employees in Mexico other than the chief executive officer. The PTU to be paid to each employee is capped to the sum of three-monthly salaries or the average of the PTU received by the employee in the last three years, whichever is higher. We committed, as part of our 2008 personnel reorganization, to pay each of our unionized employees a minimum payment of Ps. 17,500 per year for continued service. These amounts are paid and expensed at the end of each year and are included in our cost of services. In 2023, 2024 and 2025, we calculated our obligations in respect of employee statutory profit-sharing amount to be Ps. 98.6 million, Ps. 122.6 million and Ps. 131.2 million, respectively. Additionally, the amount of Ps. 22.2 million was paid to unionized employees for the year ended December 31, 2025, and is recorded as a cost of service.
Employee Profit Sharing in Puerto Rico
The LMM Airport is not subject to an employee profit sharing regime.
Employee Profit Sharing in Colombia
We are not subject to an employee profit sharing regime in Colombia.
Technical Assistance Fee
Under a technical assistance agreement in Mexico, ITA provides management and consulting services and transfers technical assistance, technological and industry knowledge, as well as experience to us for a fee. Our results of operations reflect the accrual of the technical assistance fee to ITA under the technical assistance agreement. The technical assistance fee is equal to the greater of U.S.$2.0 million, adjusted for U.S. inflation, or 5.0% of our consolidated earnings before comprehensive financing costs, income taxes and depreciation and amortization (calculated prior to deducting the technical assistance fee) up to December 31, 2023. When calculating our technical assistance fee, we only consider earnings from our Mexican airports.
As of January 1, 2025, the technical assistance fee´s rate was reduced to 2.5%.
Government Concession Fee
Mexican Concession Fee
We are subject to the Mexican Federal Duties Law, which requires each of our Mexican airports to pay a concession fee to the Mexican government, which is currently equal to 9.0% of the gross annual revenues (regulated and non-regulated) of each Mexican concession holder obtained from the use of federal airports pursuant to the terms of its concession. The increase of the concession fee from 5.0% to 9.0% of our gross annual regulated revenues determined by the amendments to the Mexican Federal Duties Law in November 2023 impacted our maximum rates approved by the Ministry of Infrastructure, Communications and Transportation for the years 2024 through 2028, and there can be no assurance that this fee may be further increased in the future.
Puerto Rican Concession Fee
Our subsidiary Aerostar is required to make annual revenue-sharing payments to the PRPA according to the terms of its LMM Lease for the LMM Airport. The LMM Lease was signed on February 27, 2013 and has an initial term of 40 years. Aerostar is required to make fixed payments of U.S.$2.5 million per year for the first five years, 5.0% of gross airport revenues for the sixth through thirtieth years and 10% of gross airport revenues for the thirty-first through fortieth years.
117
Colombian Concession Fee
With respect to our Colombian airports, our subsidiary Airplan is required to pay a concession fee to the National Infrastructure Agency pursuant to the terms of its concession agreement. The concession fee is a fixed fee equal to 19% of regulated and non-regulated revenues invoiced by the concession holder. The Colombian government cannot modify the concession fee.
Depreciation and Amortization
Mexican Assets
Our depreciation and amortization expenses in Mexico primarily reflect the amortization of the investments realized in our nine Mexican airports under our master development plans. Our current master development plans went into effect as of January 1, 2024 and expire December 31, 2028.
Puerto Rican Assets
Our depreciation and amortization expenses in Puerto Rico primarily reflect the amortization of the investments realized in LMM Airport under the concession agreement. The concession agreement is recognized as a service concession because Aerostar does not have the right to control the use of LMM Airport facilities and does not control or receive all the production from the airport’s facilities.
Colombian Assets
Our depreciation and amortization expenses in Colombia primarily reflect the amortization of the investments in our six Colombian airports. The useful life for amortization purposes was determined according to the duration of the Colombian concession on a straight line basis.
Goodwill Impairment
As a result of Hurricane Maria, which struck Puerto Rico on September 20, 2017, we carry out a deterioration test of long-term assets at the end of the year. After conducting this test in 2017, we recognized a Ps.4,719.1 million impairment in the valuation of long-term assets. Since 2017, no goodwill impairments were further recognized.
Costs of Construction
Mexican and Puerto Rican Costs of Construction
Costs of construction at our Mexican airports and LMM Airport reflect the cost of improvements to our concessioned assets. In the case of our Mexican airports and LMM Airport, because we hire third parties to provide construction and upgrade services, and we do not recognize a premium on the cost of services, our expenses for those services are equal to our revenues.
Colombian Costs of Construction
Costs of construction at our Colombian airports reflect the cost of improvements to our concessioned assets. Until December 31, 2017, in the case of our Colombian airports, because we hired third parties to provide construction and upgrade services, and we recognized a premium on the cost of services, our expenses for those services were not equal to our revenues. After December 31, 2017, however, our expenses for those services have been equal to our revenues.
Participation in the Results of Joint Ventures
We own a 60.0% joint venture interest in Aerostar, which holds a 40-year concession to operate the LMM Airport. We have consolidated Aerostar’s financial results into our financial statements. Prior to June 1, 2017, when we acquired a controlling interest in Aerostar, we accounted for our interest in this investment through the equity method. During these prior periods, we held a 50% interest in Aerostar. For more information on our joint venture interest and the LMM Airport investment, see “Item 4. Information on the Company—History and Development of the Company—Investment in LMM Airport.”
118
In addition, in May 2023, we have entered into an investment agreement with Bávaro International Airport AIB, S.A.S. (AIB), CVC One, Inc., Grupo Abrisa, S.R.L., Muñoz Investment Banking Group Fund, LLC, Abraham Jorge Hazoury Toral and Alberto Alejandro Durán Santana for purposes of developing, constructing and operating an international airport in Bavaro, Dominican Republic. While we had originally expected to maintain a 25% stake in the venture with a total estimated investment amount of U.S.$66.0 million, the concession permits were revoked by Dominican authorities and the related appeal filed by AIB is pending to be resolved. On December 21, 2023, the Dominican Constitutional Court rejected the appeal. As of December 31, 2025, there is still no government approval for the construction of the Airport.
Taxation
Taxation in Mexico
Our provision for taxes consists of solely an income tax (Impuesto Sobre la Renta, or ISR). We were subject to an asset tax, which was discontinued in 2008. We are subject to a 30.0% income tax in Mexico. Dividends paid from a company’s distributable earnings that have been subject to corporate income tax are not subject to a corporate-level dividend income tax. Income tax due on dividends paid in excess of the balance of an entity’s after-tax profit account (“CUFIN”) is levied by applying the 30.0% income tax rate to the product of the amount of such dividends and a factor of 1.4286. Tax due is payable by us and may be credited against income tax for the year or the two immediately following fiscal years. In addition, as a general rule, dividends paid by a Mexican entity to a non-resident are subject to Mexican withholding tax at a rate of 10% on the gross amount of the dividend distributed.
We have recognized deferred income tax for Aeropuerto de Cancún, S.A. de C.V., Aeropuerto de Oaxaca, S.A. de C.V, Aeropuerto de Mérida, S.A. de C.V., Aeropuerto de Villahermosa, S.A. de C.V., Aeropuerto de Huatulco, S.A. de C.V., Aeropuerto de Veracruz, S.A. de C.V., Aeropuerto de Tapachula, S. A. de C. V., Aeropuerto de Cozumel, S.A. de C.V., Cancún Airport Services, S.A. de C.V., Servicios Aeroportuarios del Sureste, S.A. de C.V., RH Asur, S.A. de C.V., Cargo RF, S.A. de C.V. and Caribbean Logistic, S.A. de C.V., and, based on our financial and tax projections, we have estimated that all of these subsidiaries will continue paying income tax in the future.
International Tax Reform
The Organization for Economic Co-operation and Development (OECD) published the International Tax Reform – Pillar 2 Model Rules - Amendments to IAS 12. These amendments stem from the digitalization of the economy and the global effort to combat tax base erosion and profit shifting (BEPS). The rules are designed to ensure that large multinational companies, subject to these regulations, pay a minimum level of taxes on the income they generate in each jurisdiction where they operate. The rules implement a system of supplementary taxes that increase the total amount of taxes paid on an entity’s excess profits, ensuring it reaches the minimum rate of 15%.
The Company operates in the following jurisdictions: Mexico, Colombia, Puerto Rico, New York, California and Illinois, with plans to expand into the Dominican Republic within the next two years. While the Company is not currently subject to the Second Pillar model rules, as the relevant legislation has not yet been enacted, the Company has begun analyzing their potential future impact. However, since Law 2277 of 2022, Colombia has incorporated a Minimum Tax Rate. This rule establishes the obligation of the taxpayer to determine its effective tax rate for corporate income tax purposes. Under this provision, the Minimum Tax Rate (“MTR”) is calculated by dividing the adjusted tax (the tax paid with certain adjustments) by the adjusted profit (the accounting profit with certain adjustments). If the result is less than 15%, the tax must be increased to ensure that a minimum of 15% tax is paid.
119
In Mexico and Colombia, the Company estimates no significant impact, as the effective tax rates in both countries exceed the 15% minimum rate established by the Second Pillar model rules. In Puerto Rico, the tax rate is lower than the stipulated minimum rate (10%) and is set by the concession agreement. The Puerto Rico Treasury Department is currently in the process of contracting international tax consulting services to implement the global minimum corporate tax agreement. Regarding operations in the Dominican Republic, the Company will assess the impact once it begins its activities there.
The Company has adopted the mandatory exception to recognize and disclose information about deferred tax assets and liabilities arising from Second Pillar income taxes as provided in the amendments to IAS 12 issued in May 2023.
Taxation in Puerto Rico
Pursuant to our agreement with the Treasury Department of Puerto Rico and the Public Private Partnership Law, our operations at the LMM Airport are subject to a 10.0% income tax. Earnings distributions and profits derived from the LMM Airport that are covered by the LMM Lease are also subject to a 10.0% tax.
In 2024 and 2025, the Company received approximately 50% of the tax losses from previous years from its subsidiary Aerostar for an amount of Ps.126,662 and Ps. 85,442, respectively. As of December 31, 2025, Aerostar still has tax losses for which deferred income tax has not been recognized given that there is still no reasonable certainty of their recovery in future years.
Taxation in Colombia
Our provision for taxes in Colombia consists of two levels of income taxes: (i) ordinary income tax, and (ii) presumptive income tax. Traditionally, taxpayers determined their tax liability pursuant to the higher of both mechanisms, however the presumptive income tax system is currently not applicable since the presumed income is zero. The corporate income tax rates of the ordinary income tax were gradually reduced from 33% to 30% as follows: 33% in 2019, 32% in 2020%, 31% in 2021 and 30% from 2022 onward. However, in September 2021 the Colombian Congress adopted Law 2155, which changed the corporate income tax rates to 35% from 2022 onward. With respect to presumptive income tax, Section 188 of the Colombian Tax Code provides that, for income tax purposes, it is assumed that a taxpayer’s net income would be at least 3.5% of his or her net worth on the last day of the immediately preceding taxable year. As mentioned above, the percentage of presumptive income referred to in Section 188 was reduced to 0.5% during the taxable year ended December 31, 2020, and indefinitely reduced to 0% starting in 2021. The result of presumptive income being 0% is that taxpayers from 2021 onwards will only pay corporate income tax over their ordinary net income, with taxable income defined as the excess of all operating and non-operating revenue over deductible costs and expenses. However, a minimum 15% tax on adjusted accounting profits applies beginning on January 1, 2023. This minimum tax differs from the presumptive income system and was created to follow Pillar II guidelines set forth by the Organization for Economic Cooperation and Development.
On August 8, 2022, the Ministry of Finance submitted a tax reform bill to the Colombian Congress proposing several changes to the Colombian tax regime. The tax reform bill was passed as Law 2277 on December 13, 2022, and became effective starting January 1, 2023. This new law includes, among others: (i) a new equity tax applicable to Colombian individuals and non-residents, which rates vary from 0.5% to 1.5% based on the individual’s net equity as of the first day of January of each year, (ii) an increase in the dividend tax rate for local and foreign shareholders (0% to 39% progressive marginal rates for Colombian individuals, and 20% flat withholding rate for non-resident shareholders), (iii) an increase in the long-term capital gains tax rate, from 10% to 15%, (iv) the elimination of specific tax benefits and exemptions, such as the exempt income applicable for entities that are part of the technological and creative sector (“Economía Naranja”), the tax incentive for the development of the Colombian farming sector, and the 27% preferential income tax rate applicable to large infrastructure investments (“Megainversiones”), among others, (v) a 3% tax benefit on the taxpayer’s net income determined pursuant to Section 259-1 of the Colombian Tax Code, in connection with environmental-related, deductions related to employee trainings, expenses incurred in the conservation of cultural property, among others, (vi) a minimum corporate income tax of at least 15% based on effective tax rate (calculated on book profit with certain adjustments), (vii) taxes based on significant economic presence of certain commercial activities (primarily for non-resident persons and entities that provide digital services), and (viii) the elimination of the possibility to use 50% of the Industry and Commerce Tax (i.e., local tax levied on gross revenue derived from the provision of services, or the performance of commercial and industrial activities in Colombian municipalities) as an income tax credit.
120
Furthermore, the Colombian Government submitted a new tax reform bill to the Colombian Congress in September 2024 which was rejected in December 2024. The bill proposed several changes such as: (i) increasing the equity tax rates up to 2%, reducing the equity tax threshold, (iii) including Colombian entities as taxpayers (but only in respect of their non-productive fixed assets), (iv) increasing long-term capital gains tax rate from 15% to 20%, (v) increasing individual’s maximum income tax rate from 39% to 41%, (vi) increasing the minimum corporate income tax from 15% to 20% and (vi) increasing the national carbon tax.
On February 14, 2025, the Colombian Government issued Decree 175 introducing three temporary changes to the tax legislation that applied until December 31, 2025: value added tax on online betting and gambling games, a new tax on the extraction of hydrocarbons and coal and the reintroduction of stamp tax. Stamp taxes will apply to public instruments and private documents that (i) are executed in Colombia outside of Colombia but creating obligations in the country, (ii) are executed by a public entity, a legal entity or a merchant with an income or gross assets exceeding 30,000 UVT in the previous year, (iii) creates, assigns or terminates obligations exceeding 6,000 UVT. The stamp tax rate is 1% of the total amount of the contract, and is deductible for corporate income tax purposes.
Also in 2025, the Colombian government issued Executive Decree 1474, which introduced specific and temporary tax measures aimed at addressing a State of Economic Emergency declared by the government in December 2025. Decree 1474 created a number of temporary measures, including: (i) an increase in the top rate for Wealth Tax (up to 5%), (ii) an income tax surcharge for financial institutions of 15%, (iii) the non-deductibility of royalties derived from the exploitation of non-renewable natural resources, and (iv) tax amnesties, among others. Notwithstanding the above, the effects of Decree 1474 were suspended by the Constitutional Court while it conducts its constitutional assessment.
The Company’s overall income taxes for 2023, 2024 and 2025 are as follows:
Income Tax
|
|
Year ended December 31, |
|
||||||
|
|
2023 |
|
2024 |
|
2025 |
|
||
|
|
(millions of Mexican pesos) |
|
||||||
|
|
Amount |
|
Amount |
|
Amount |
|
Change |
|
Income Tax |
|
|
|
|
|
|
|
|
|
Current Income Tax |
|
3,885.3 |
|
5,691.9 |
|
4,422.4 |
|
(22.3) |
% |
Deferred Income Tax |
|
58.8 |
|
650.5 |
|
(388.1) |
|
(159.7) |
% |
Total Income Tax |
|
3,944.1 |
|
6,342.4 |
|
4,034.3 |
|
(36.4) |
% |
Current Asset Tax |
|
0.0 |
|
0.0 |
|
0.0 |
|
0.0 |
|
Total Asset Tax |
|
0.0 |
|
0.0 |
|
0.0 |
|
0.0 |
|
Total Income Tax |
|
3,944.1 |
|
6,342.4 |
|
4,034.3 |
|
(36.4) |
% |
In 2026, the general VAT tax rate applicable in Colombia is 19% and calculated and paid generally on a bimonthly basis. Companies that engage in the business of selling goods, rendering services, leasing, importing or exporting goods are subject to VAT (subject to certain exemptions and exclusions).
The VAT accrued or paid on purchases of goods and services used in income generating activities in Colombia that could be treated as a cost or expense for income tax purposes, can be credited against the VAT invoiced in sales to clients. VAT accrued on purchases of goods and services used in income generating activities that are not subject or are excluded from VAT will not be creditable and will become a higher cost to the company. In the case that the VAT paid exceeds the VAT collected in a given period, companies may offset the VAT favorable balance against future VAT collected from sales to clients. Only in certain cases can the excess can be claimed as a refund.
Taxes on dividends in Colombia vary depending on the year in which the profits to be distributed were generated and the recipient of the dividend.
121
Law 1819 of 2016 created a dividends tax that applies to all dividend distributions to Colombian individuals or to any type of non-resident shareholder, absent any specific treaty or exception, regardless of whether dividends are paid from taxed or untaxed profits. According to the aforementioned law, dividend payments made to foreign shareholders out of profits accrued at the corporate level as of 2017 were subject to a 5% withholding tax. That rate was subsequently modified by Law 1943 of 2018, which increased the withholding tax to 7.5% and extended dividend taxation to intercompany dividends between Colombian resident companies (with certain exceptions).
From fiscal year 2022 onwards, a withholding tax on dividends paid applies as follows:
(a) |
Dividends paid to non-resident shareholders: (i) a 10% dividend tax on dividends distributed from profits taxed at the corporate level (except that dividends paid to non-resident shareholders out of profits taxed at the corporate level prior to and including December 31, 2016, are not subject to this tax); or (ii) a 35% withholding tax rate on dividends distributed from profits not taxed at the corporate level, plus an additional 10% dividend tax after applying the initial 35% withholding tax rate (i.e., 41.5% in 2022). |
(b) |
For Colombian individuals: dividend income in excess of 300 UVT is taxed at a 10% rate in respect of profits taxed at the corporate level; and a 35% withholding tax rate on dividends distributed from profits not taxed at the corporate level, plus an additional 10% dividend tax after applying the initial 35% withholding tax rate. |
(c) |
For Colombian corporations, Article 242-1 of the Colombian Tax Code provides that (i) dividends distributed from taxed profits to local corporations during fiscal years 2021 and 2022 were taxed at 7.5%, and (ii) dividends distributed from non-taxed profits were taxed at a 31% withholding tax rate for 2021 and 35% for 2022, plus an additional 7.5% dividend tax on the balance of the dividend amount after the initial withholding was applied. |
From fiscal year 2023 onwards, dividend taxation will be as follows:
(a) |
Dividends paid to non-resident shareholders: (i) a 20% dividend tax on dividends distributed from profits taxed at the corporate level (except that dividends paid to non-resident shareholders out of profits taxed at the corporate level prior to and including December 31, 2016 are not subject to this tax); or (ii) a 35% withholding tax rate on dividends distributed from profits not taxed at the corporate level, plus an additional 20% dividend tax after applying the initial 35% withholding tax rate (i.e., 48%). |
(b) |
For Colombian individuals: dividend income in excess of 1,090 UVT is taxed at progressive rates of up to 39% in respect of profits taxed at the corporate level, and a 35% withholding tax rate on dividends distributed from profits not taxed at the corporate level, plus an additional dividend tax (at the aforementioned progressive rates) after applying the initial 35% withholding tax rate. Additionally, resident individuals may take a marginal 19% discount on the portion of dividend income exceeding 1,090 UVT in the same taxable period. |
(c) |
For Colombian corporations, Article 242-1 of the Colombian Tax Code provides that dividends distributed from taxed profits to local corporations accrued during 2023 are subject to a transferable withholding tax of 10% on dividends distributed from taxed profits, which may be credited by the recipient shareholder. Dividends distributed from non-taxed profits are subject to a 35% withholding tax, plus an additional 10% dividend tax on the balance of the dividend amount after the initial withholding is applied. |
The Double Taxation Treaty in effect between Colombia and Mexico eliminates the aforementioned dividend tax when the recipient of the dividends is a Mexican resident and those dividends are not attributable to a permanent establishment of the recipient in Colombia. However, when the dividends are paid out of profits that were not subject to income tax at the level of the Colombian entity distributing them, they may still be subject to a 33% withholding tax.
Effects of Inflation and Economic Changes
The following table sets forth, for the periods indicated:
| ● | the Mexican inflation rate; |
122
| ● | the Colombian inflation rate; |
| ● | the U.S. inflation rate; |
| ● | the percentage that the Mexican gross domestic product, or GDP, changed as compared to the previous period; and |
| ● | the percentage that the Colombian GDP changed as compared to the previous period. |
|
|
Year ended December 31, |
|
||||
|
|
2023 |
|
2024 |
|
2025 |
|
Mexican inflation rate(1) |
|
4.7 |
% |
4.2 |
% |
3.7 |
% |
Colombian inflation rate |
|
9.3 |
% |
5.2 |
% |
5.1 |
% |
U.S. inflation rate(2) |
|
3.4 |
% |
2.9 |
% |
2.7 |
% |
Increase (decrease) in Mexican GDP(3) |
|
3.3 |
% |
1.3 |
% |
0.7 |
% |
Increase (decrease) in Colombian GDP |
|
1.0 |
% |
1.7 |
% |
2.7 |
% |
(1) |
Based on changes in the Mexican consumer price index from the previous period, as reported by the Banco de Mexico. The Mexican consumer price index at year end was 132.4 in 2023, 137.9 in 2024 and 143.0 in 2025. |
(2) |
As reported by the U.S. Department of Labor, Bureau of Statistics. |
(3) |
In real terms, as reported by the National Institute of Statistics and Geography (INEGI) as of January 30, 2026. |
The general condition of the Mexican economy, inflation and high interest rates have in the past adversely affected, and may in the future adversely affect our business and operating results. For a detailed description of the risks associated with changes to the economy, inflation and interest rates, see “Item 3. Key Information—Risk Factors—Risks Related to Our Operations.”
Effects of Fluctuation
The following table sets forth, for the periods indicated, the percentage that the Mexican peso depreciated or appreciated against the U.S. dollar.
|
|
Year ended December 31, |
|
||||
|
|
2023 |
|
2024 |
|
2025 |
|
Depreciation (appreciation) of the Mexican peso as compared to the U.S. dollar(1) |
|
(13.1) |
% |
22.9 |
% |
(13.4) |
% |
(1) |
Based on the Official Journal Federation exchange rate for Mexican pesos, at the end of each period, which were as follows: Ps. 16.919 as of December 31, 2023 , Ps. 20.786 as of December 31, 2024 and Ps. 18.0012 as of December 31, 2025. |
Changes in the value of the Mexican peso as compared to the dollar have in the past adversely affected, and may in the future adversely affect, our:
| ● | Passenger charges. Passenger charges for international passengers are currently denominated in dollars, while passenger charges for Mexican domestic passengers are denominated in Mexican pesos. Therefore, our revenues from passenger charges at our Mexican airports (a substantial portion of our business), which are stated herein in Mexican pesos, will be affected by a depreciation or appreciation in the value of the peso as compared as to the dollar. Passengers charges at our Colombian airports are also affected by changes in the value of the Colombian peso. Passenger charges for international and domestic passengers at our Colombian airports are denominated in U.S. dollars and Colombian pesos, respectively. |
123
| ● | Contracts with commercial service providers. Many of our contracts with commercial services providers in Mexico are denominated in U.S. dollars, but are collected or converted into Mexican pesos at the time of payment. Therefore, a depreciation in the peso as against the dollar results in us collecting more pesos for dollar-denominated contracts than before the depreciation, whereas an appreciation of the peso results in us collecting fewer pesos for dollar-denominated contracts. As a result, if the peso depreciates, and our peso-denominated cost of services does not increase at the same rate as the depreciation of the peso, our commercial revenues increase, whereas an appreciation of the peso or an increase in the peso-denominated cost of our services leads to a decrease in our commercial revenues. Our contracts with commercial service providers in Colombia are denominated and collected in Colombian pesos. Our contracts with commercial service providers in Puerto Rico are denominated in and collected in U.S. dollars. |
| ● | Comprehensive financing result. Our comprehensive financing reflects gains or losses from foreign exchange, and gains and losses from interest earned or expensed. A portion of our indebtedness is denominated in U.S. dollars. Given that a substantial portion of our revenues are collected or converted into Mexican pesos, a depreciation in the peso as against the dollar would result in us having to spend more pesos for payment of dollar-denominated indebtedness, whereas an appreciation of the peso would result in us spending fewer pesos for dollar-denominated indebtedness payments. |
| ● | Maximum rates in pesos. Our tariffs for the services we provide to international flights or international passengers in our Mexican airports are denominated in U.S. dollars, but are generally paid in Mexican pesos based on the average exchange rate for the month prior to each flight. With respect to our Mexican airports, we generally collect passenger charges from airlines 30 to 115 days following the date of each flight. We intend to charge prices that are as close as possible to the maximum rates that we can charge. Since we are usually only entitled to adjust our specific prices once every six months (or earlier upon a cumulative increase of 5.0% in the Mexican producer price index, excluding petroleum), a depreciation of the peso as compared to the dollar, particularly late in the year, could cause us to exceed the maximum rates at one or more of our Mexican airports, possibly leading to the termination of one of our Mexican concessions. In the event that any one of our Mexican concessions is terminated, our other Mexican concessions may also be terminated. In addition, if the peso appreciates as compared to the dollar we may underestimate the specific prices we can charge for regulated services and be unable to adjust our prices upwards to maximize our regulated revenues. |
For a detailed description of the risks associated with fluctuations in the value of the Mexican peso as compared to the U.S. dollar, see “Item 3. Key Information—Risk Factors—Risks Related to Mexico— Appreciation, depreciation or fluctuation of the peso relative to the U.S. dollar could adversely affect our results of operations and financial condition.”
124
Operating Results by Airport
The following table sets forth our results of operations for the periods indicated:
Operating Results
|
|
Year ended December 31, |
||||||||||
|
|
2023 |
|
2024 |
|
2025 |
||||||
|
|
Airport |
|
Per |
|
Airport |
|
Per |
|
Airport |
|
Per |
|
|
Operating |
|
Workload |
|
Operating |
|
Workload |
|
Operating |
|
Workload |
|
|
Results |
|
Unit(1) |
|
Results |
|
Unit(1) |
|
Results |
|
Unit(1) |
|
|
(millions of |
|
(Mexican |
|
(millions of |
|
(Mexican |
|
(millions of |
|
(Mexican |
|
|
Mexican pesos) |
|
pesos) |
|
Mexican pesos) |
|
pesos) |
|
Mexican pesos) |
|
pesos) |
Cancún(2): |
|
|
|
|
|
|
|
|
|
|
|
|
Revenues before solidarity agreement(3): |
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical services |
|
8,167.8 |
|
246.8 |
|
10,414.2 |
|
337.0 |
|
10,544.8 |
|
353.9 |
Non-aeronautical services |
|
6,373.8 |
|
192.6 |
|
6,424.7 |
|
207.9 |
|
6,344.9 |
|
212.9 |
Construction services |
|
415.7 |
|
12.6 |
|
1,488.9 |
|
48.2 |
|
4,847.8 |
|
162.7 |
Total revenues before solidarity agreement |
|
14,957.3 |
|
452.0 |
|
18,327.8 |
|
593.1 |
|
21,737.5 |
|
729.5 |
Expenses before solidarity agreement |
|
(4,971.2) |
|
(150.2) |
|
(6,725.7) |
|
(217.7) |
|
(10,338.9) |
|
(346.8) |
Net operating income before solidarity agreement |
|
9,986.1 |
|
301.8 |
|
11,602.1 |
|
375.4 |
|
11,398.6 |
|
382.7 |
Solidarity agreement revenues |
|
0.0 |
|
0.0 |
|
0.0 |
|
0.0 |
|
0.0 |
|
0.0 |
Solidarity agreement expenses |
|
(375.8) |
|
(11.4) |
|
(444.9) |
|
(14.4) |
|
(424.6) |
|
(14.2) |
Net operating income after solidarity agreement |
|
9,610.3 |
|
290.4 |
|
11,157.2 |
|
361.0 |
|
10,974.0 |
|
368.5 |
Mérida: |
|
|
|
|
|
|
|
|
|
|
|
|
Revenues before solidarity agreement: |
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical services |
|
1,066.4 |
|
273.4 |
|
1,122.0 |
|
280.5 |
|
1,230.3 |
|
292.9 |
Non-aeronautical services |
|
232.5 |
|
59.6 |
|
268.6 |
|
67.2 |
|
291.6 |
|
69.4 |
Construction services |
|
64.6 |
|
16.6 |
|
177.3 |
|
44.3 |
|
192.5 |
|
45.8 |
Total revenues before solidarity agreement |
|
1,363.5 |
|
349.6 |
|
1,567.9 |
|
392.0 |
|
1,714.4 |
|
408.1 |
Expenses before solidarity agreement |
|
(562.8) |
|
(144.3) |
|
(797.5) |
|
(199.4) |
|
(857.5) |
|
(204.0) |
Net operating income before solidarity agreement |
|
800.7 |
|
205.3 |
|
770.4 |
|
192.6 |
|
856.9 |
|
204.1 |
Solidarity agreement revenues |
|
0.0 |
|
0.0 |
|
0.0 |
|
0.0 |
|
0.0 |
|
0.0 |
Solidarity agreement expenses |
|
(37.4) |
|
(9.6) |
|
(41.5) |
|
(10.4) |
|
(43.8) |
|
(10.4) |
Net operating income after solidarity agreement |
|
763.3 |
|
195.7 |
|
728.9 |
|
182.2 |
|
813.1 |
|
193.7 |
Villahermosa: |
|
|
|
|
|
|
|
|
|
|
|
|
Revenues before solidarity agreement: |
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical services |
|
404.4 |
|
269.6 |
|
462.3 |
|
288.9 |
|
468.3 |
|
312.2 |
Non - aeronautical services |
|
73.9 |
|
49.3 |
|
85.4 |
|
53.4 |
|
83.1 |
|
55.4 |
Construction services |
|
76.4 |
|
50.9 |
|
88.5 |
|
55.3 |
|
147.3 |
|
98.2 |
Total revenues before solidarity agreement |
|
554.7 |
|
369.8 |
|
636.2 |
|
397.6 |
|
698.7 |
|
465.8 |
Expenses before solidarity agreement |
|
(276.2) |
|
(184.1) |
|
(326.1) |
|
(203.8) |
|
(396.7) |
|
(264.4) |
Net operating income before solidarity agreement |
|
278.5 |
|
185.7 |
|
310.1 |
|
193.8 |
|
302.0 |
|
201.4 |
Solidarity agreement revenues |
|
0.0 |
|
0.0 |
|
0.0 |
|
0.0 |
|
0.0 |
|
0.0 |
Solidarity agreement expenses |
|
(14.5) |
|
(9.7) |
|
(16.4) |
|
(10.3) |
|
(15.8) |
|
(10.5) |
Net operating income after solidarity agreement |
|
264.0 |
|
176.0 |
|
293.7 |
|
183.5 |
|
286.2 |
|
190.9 |
Other Mexican Airports(4): |
|
|
|
|
|
|
|
|
|
|
|
|
Revenues before solidarity agreement: |
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical services |
|
1,609.0 |
|
282.3 |
|
1,917.1 |
|
324.9 |
|
2,029.8 |
|
338.3 |
Non-aeronautical services |
|
226.6 |
|
39.8 |
|
277.6 |
|
47.1 |
|
301.0 |
|
50.2 |
Construction services |
|
316.9 |
|
55.6 |
|
442.1 |
|
74.9 |
|
1,373.6 |
|
228.9 |
Total revenues before solidarity agreement |
|
2,152.5 |
|
377.7 |
|
2,636.8 |
|
446.9 |
|
3,704.4 |
|
617.4 |
Expenses before solidarity agreement |
|
(1,136.3) |
|
(199.4) |
|
(1,412.4) |
|
(239.4) |
|
(2,422.4) |
|
(403.7) |
Net operating income (loss) before solidarity agreement |
|
1,016.2 |
|
178.3 |
|
1,224.4 |
|
207.5 |
|
1,282.0 |
|
213.7 |
Solidarity agreement revenues |
|
|
|
|
|
0.0 |
|
0.0 |
|
0.0 |
|
0.0 |
Solidarity agreement expenses |
|
(49.6) |
|
(8.7) |
|
(60.7) |
|
(10.3) |
|
(61.4) |
|
(10.2) |
Net operating (loss) income after solidarity agreement |
|
966.6 |
|
169.6 |
|
1,163.7 |
|
197.2 |
|
1,220.6 |
|
203.5 |
Asur Airports: |
|
|
|
|
|
|
|
|
|
|
|
|
Revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical services |
|
— |
|
— |
|
— |
|
— |
|
0.0 |
|
N/A |
Non-aeronautical services |
|
— |
|
— |
|
— |
|
— |
|
133.1 |
|
N/A |
Construction services |
|
— |
|
— |
|
— |
|
— |
|
0.0 |
|
N/A |
Total revenues |
|
— |
|
— |
|
— |
|
— |
|
133.1 |
|
N/A |
Expenses |
|
— |
|
— |
|
— |
|
— |
|
(137.6) |
|
N/A |
Net operating income (loss) |
|
— |
|
— |
|
— |
|
— |
|
(4.5) |
|
N/A |
125
|
|
Year ended December 31, |
||||||||||
|
|
2023 |
|
2024 |
|
2025 |
||||||
|
|
Airport |
|
Per |
|
Airport |
|
Per |
|
Airport |
|
Per |
|
|
Operating |
|
Workload |
|
Operating |
|
Workload |
|
Operating |
|
Workload |
|
|
Results |
|
Unit(1) |
|
Results |
|
Unit(1) |
|
Results |
|
Unit(1) |
|
|
(millions of |
|
(Mexican |
|
(millions of |
|
(Mexican |
|
(millions of |
|
(Mexican |
|
|
Mexican pesos) |
|
pesos) |
|
Mexican pesos) |
|
pesos) |
|
Mexican pesos) |
|
pesos) |
San Juan: |
|
|
|
|
|
|
|
|
|
|
|
|
Revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical services |
|
2,029.9 |
|
N/A |
|
2,208.1 |
|
N/A |
|
2,371.5 |
|
N/A |
Non-aeronautical services |
|
1,729.9 |
|
N/A |
|
1,981.7 |
|
N/A |
|
2,284.0 |
|
N/A |
Construction services |
|
414.5 |
|
N/A |
|
626.2 |
|
N/A |
|
769.9 |
|
N/A |
Total revenues |
|
4,174.3 |
|
N/A |
|
4,816.0 |
|
N/A |
|
5,425.4 |
|
N/A |
Expenses |
|
(2,544.5) |
|
N/A |
|
(3,287.5) |
|
N/A |
|
(3,804.6) |
|
N/A |
Net operating income (loss) |
|
1,629.8 |
|
N/A |
|
1,528.5 |
|
N/A |
|
1,620.8 |
|
N/A |
Colombian Airports(5): |
|
|
|
|
|
|
|
|
|
|
|
|
Revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical services |
|
1,945.6 |
|
N/A |
|
2,465.4 |
|
N/A |
|
2,743.1 |
|
N/A |
Non-aeronautical services |
|
659.2 |
|
N/A |
|
857.3 |
|
N/A |
|
1,061.5 |
|
N/A |
Construction services |
|
14.5 |
|
N/A |
|
25.4 |
|
N/A |
|
19.3 |
|
N/A |
Total revenues |
|
2,619.3 |
|
N/A |
|
3,348.1 |
|
N/A |
|
3,823.9 |
|
N/A |
Expenses |
|
(1,534.9) |
|
N/A |
|
(1,807.2) |
|
N/A |
|
(2,826.7) |
|
N/A |
Net operating income (loss) |
|
1,084.4 |
|
N/A |
|
1,540.9 |
|
N/A |
|
997.2 |
|
N/A |
Holding & Service Companies(6): |
|
|
|
|
|
|
|
|
|
|
|
|
Revenues before solidarity agreement: |
|
|
|
|
|
|
|
|
|
|
|
|
Other(7) |
|
502.8 |
|
N/A |
|
593.5 |
|
N/A |
|
603.0 |
|
N/A |
Total revenues before solidarity agreement |
|
502.8 |
|
N/A |
|
593.5 |
|
N/A |
|
603.0 |
|
N/A |
Expenses before solidarity agreement |
|
(55.0) |
|
N/A |
|
(50.1) |
|
N/A |
|
(62.8) |
|
N/A |
Net operating income before solidarity agreement |
|
447.8 |
|
N/A |
|
543.4 |
|
N/A |
|
540.2 |
|
N/A |
Solidarity agreement revenues |
|
477.3 |
|
N/A |
|
563.5 |
|
N/A |
|
545.8 |
|
N/A |
Solidarity agreement expenses |
|
0.0 |
|
N/A |
|
0.0 |
|
N/A |
|
0.0 |
|
N/A |
Net non after solidarity agreement |
|
925.1 |
|
N/A |
|
1,106.9 |
|
N/A |
|
1,086.0 |
|
N/A |
Consolidation Adjustment(8): |
|
|
|
|
|
|
|
|
|
|
|
|
Total Revenues |
|
(980.1) |
|
N/A |
|
(1,157.0) |
|
N/A |
|
(1,149.3) |
|
N/A |
Expenses |
|
980.1 |
|
N/A |
|
1,157.0 |
|
N/A |
|
1,149.3 |
|
N/A |
Total: |
|
|
|
|
|
|
|
|
|
|
|
|
Revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical services |
|
15,223.1 |
|
N/A |
|
18,589.1 |
|
N/A |
|
19,387.8 |
|
N/A |
Non-aeronautical services |
|
9,295.9 |
|
N/A |
|
9,895.3 |
|
N/A |
|
10,499.2 |
|
N/A |
Construction services |
|
1,302.6 |
|
N/A |
|
2,848.4 |
|
N/A |
|
7,350.4 |
|
N/A |
Total revenues |
|
25,821.6 |
|
N/A |
|
31,332.8 |
|
N/A |
|
37,237.4 |
|
N/A |
Expenses |
|
(10,578.1) |
|
N/A |
|
(13,813.0) |
|
N/A |
|
(20,243.5) |
|
N/A |
Net operating income |
|
15,243.5 |
|
N/A |
|
17,519.8 |
|
N/A |
|
16,993.9 |
|
N/A |
(1) |
Under the regulation applicable to our aeronautical revenues in Mexico, a workload unit is equivalent to one terminal passenger or 100 kilograms (220 pounds) of cargo. |
(2) |
Reflects the results of operations of our Cancún Airport and two Cancún airport services subsidiaries on a consolidated basis. |
(3) |
We and only our Mexican subsidiaries have entered into intercompany agreements that affect the revenues, operating costs and income at our individual subsidiaries but not on a consolidated basis. One of these agreements is the “Solidarity Agreement,” pursuant to which each of our Mexican subsidiaries pays a fee to Grupo Aeroportuario del Sureste, S.A.B. de C.V.,, our parent company, in exchange for which our parent guarantees the ongoing viability of that Mexican subsidiary’s concession, including, in the case of certain Mexican subsidiaries, by making payments to those subsidiaries to ensure that they have the resources to comply with their master development plans and other regulatory obligations. Revenues, expenses and income related to the Solidarity Agreement apply only to our Mexican operations. |
(4) |
Reflects the results of operations of our airports located in Veracruz, Minatitlán, Oaxaca, Huatulco, Tapachula and Cozumel. |
(5) |
Reflects the results of operations of our airports located in Medellín, Rionegro, Montería, Carepa, Quibdó and Corozal. |
(6) |
Reflects the results of operations of our parent holding company and our services subsidiaries. Because none of these entities hold the concessions for our Mexican airports, we do not report workload unit data for these entities. |
(7) |
Reflects revenues under intercompany agreements (other than the solidarity agreement) which are eliminated in the consolidation adjustment. |
(8) |
The consolidation adjustment affects our consolidated net income by eliminating both revenues and expenses from intercompany transactions from all segments. |
126
We and our Mexican subsidiaries have entered into intercompany agreements that affect the revenues, operating costs and income at our individual subsidiaries but not on a consolidated basis. Under the intercompany agreements, our holding company Grupo Aeroportuario del Sureste, S.A.B. de C.V., and our administrative services companies provide certain services and guarantees to the Mexican airport operating subsidiaries (which may include payments to certain of our Mexican airport operating subsidiaries), in exchange for which the Mexican airport operating subsidiaries make payments to our parent and the service companies. One of these agreements is the “Solidarity Agreement,” pursuant to which each of our Mexican subsidiaries pays a fee to our parent company, in exchange for which the parent company guarantees the ongoing viability of that Mexican subsidiary’s concession, including, in the case of certain Mexican subsidiaries, by making payments to those subsidiaries to ensure that they have the resources to comply with their master development plans and other regulatory obligations. The intercompany agreements also include agreements to provide other routine services, including negotiating regulated tariffs and interfacing with regulators, leasing of commercial real estate, trademark license royalties, marketing services and employee costs. The costs of these services and guarantees, including the Solidarity Agreement, are actual costs that are charged to individual airports. In the presentation of our consolidated results, the revenues and expenses generated by these transactions are eliminated because they are intercompany transactions.
Summary Historical Results of Operations
The following table sets forth our consolidated results of operations for the periods indicated. The financial information included in the table below is derived from our audited consolidated financial statements.
Consolidated Operating Results
|
|
Year Ended December 31, |
|
|||||||
|
|
2023 |
|
2024 |
|
2025 |
|
|||
|
|
(thousands of Mexican pesos) |
|
|||||||
Revenue: |
|
|
|
|
|
|
|
|
|
|
Aeronautical services |
|
Ps. |
15,223,096 |
|
Ps. |
18,589,161 |
|
Ps. |
19,387,860 |
|
Non-aeronautical services |
|
|
9,295,915 |
|
|
9,895,327 |
|
|
10,499,263 |
|
Construction services |
|
|
1,302,633 |
|
|
2,848,299 |
|
|
7,350,308 |
|
Total revenue |
|
|
25,821,644 |
|
|
31,332,787 |
|
|
37,237,431 |
|
Operating Costs and Expenses: |
|
|
|
|
|
|
|
|
|
|
Cost of services |
|
|
(4,675,525) |
|
|
(5,363,551) |
|
|
(6,180,807) |
|
Administrative expenses |
|
|
(319,200) |
|
|
(319,638) |
|
|
(346,047) |
|
Costs of construction |
|
|
(1,302,633) |
|
|
(2,848,299) |
|
|
(7,350,308) |
|
Technical assistance fee(1) |
|
|
(715,462) |
|
|
(400,838) |
|
|
(400,912) |
|
Government concession fee(2) |
|
|
(1,496,142) |
|
|
(2,557,671) |
|
|
(2,704,657) |
|
Depreciation and amortization |
|
|
(2,069,157) |
|
|
(2,322,984) |
|
|
(3,260,815) |
|
Goodwill impairment |
|
|
— |
|
|
— |
|
|
— |
|
Total operating expenses |
|
|
(10,578,119) |
|
|
(13,812,981) |
|
|
(20,243,546) |
|
Other income(3) |
|
|
— |
|
|
— |
|
|
— |
|
Operating profit |
|
|
15,243,525 |
|
|
17,519,806 |
|
|
16,993,885 |
|
Comprehensive Financing Result: |
|
|
|
|
|
|
|
|
|
|
Interest income, net |
|
|
223,455 |
|
|
788,357 |
|
|
(94,825) |
|
Exchange gains (losses), net |
|
|
(837,208) |
|
|
2,072,490 |
|
|
(1,905,839) |
|
Fair value (losses) gains, net |
|
|
— |
|
|
— |
|
|
(28,946) |
|
Net comprehensive financing income result |
|
|
(613,753) |
|
|
2,860,847 |
|
|
(2,029,610) |
|
Participation in the results of joint ventures accounted for by the equity method |
|
|
(9,685) |
|
|
(7,760) |
|
|
(5,333) |
|
Income before taxes |
|
|
14,620,087 |
|
|
20,372,893 |
|
|
14,958,942 |
|
Provision for taxes |
|
|
(3,944,143) |
|
|
(6,342,455) |
|
|
(4,034,245) |
|
Net income |
|
|
10,675,944 |
|
|
14,030,438 |
|
|
10,924,697 |
|
Other Operating Data: |
|
|
|
|
|
|
|
|
|
|
Operating margin(3) |
|
|
59.0 |
% |
|
55.9 |
% |
|
45.6 |
% |
Net margin(4) |
|
|
41.3 |
% |
|
44.8 |
% |
|
29.3 |
% |
(1) |
We are required to pay ITA a technical assistance fee based on the technical assistance agreement. This fee is described in “Item 5. Operating and Financial Review and Prospects—Operating Costs –Technical Assistance Fee.” |
127
(2) |
Each of our Mexican subsidiary concession holders is required to pay a concession fee to the Mexican government under the Mexican Federal Duties Law. The concession fee is currently 9.0% of each concession holder’s gross annual regulated revenues from the use of federal airports pursuant to the terms of its concession. Our subsidiary Airplan is required to pay a concession fee to the National Infrastructure Agency with respect to concessions for our Colombian airports. The concession fee is a fixed fee equal to 19.0% of regulated revenues and non-regulated revenues invoiced by the concession holder. Our subsidiary Aerostar is required to make fixed payments to the PRPA of U.S.$2.5 million per year for the first five years, 5.0% of gross airport revenues for the sixth through thirtieth years and 10% of gross airport revenues for the thirty-first through fortieth years. These fees are described in “Item 5. Operating and Financial Review and Prospects—Operating Costs—Government Concession Fee.” |
(3) |
Operating income divided by total revenues, expressed as a percentage. |
(4) |
Net income divided by total revenues, expressed as a percentage. |
128
Results of operations for the year ended December 31, 2025 compared to the year ended December 31, 2024
Revenues
Total consolidated revenues for 2025 were Ps. 37,237.4 million, 18.8% higher than the Ps. 31,332.8 million recorded in 2024. The increase in total revenues resulted from an increase of 4.3% in aeronautical revenues, a 6.1% increase in non-aeronautical revenues, and 158.1% increase in construction revenues. Total Mexican revenues per workload unit increased 22.8% from Ps. 546.7 million in 2024 to Ps. 671.2 million in 2025, due mainly to a 205.2% increase in revenues for construction services per workload unit, which are based on capital improvements to concessioned assets and are not directly related to passenger traffic.
Our consolidated revenues from aeronautical services increased 4.3% from Ps. 18,589.2 million in 2024 to Ps. 19,387.8 million in 2025, due primarily to a 0.3% increase in passenger traffic. Revenues from passenger charges increased 6.3% from Ps. 14,454.6 million in 2024 (77.8% of our aeronautical revenues during the period) to 15,363.3 million in 2025 (79.2% of our aeronautical revenues during the period), which reflect the increase in passenger traffic. Mexican aeronautical revenues per workload unit increased 4.8% from Ps. 328.2 million in 2024 to Ps. 343.9 million in 2025.
Revenues from non - aeronautical services increased 6.1% from Ps. 9,895.3 million in 2024 to Ps. 10,499.3 million in 2025. The primary factor behind the /ncrease in non - aeronautical revenues from 2024 to 2025 was the increase in commercial revenues due to higher passenger traffic during 2025. Higher passenger traffic in 2025 led to, a 5.8% increase in revenues from duty - free shops, and a 22.5% increase in other income, which consisted principally of revenue from tourism services and hotel operators. This increase in revenues from non-aeronautical services was also driven by an increase of 9.4% in revenues from car rental companies, a 10.3% increase in revenues from food and beverages, an 11.9% increase in parking lot revenues, a 12.3% increase in revenues from ground transportation, a 62.1% increase in teleservices revenues partially compensated by a 6.6% decrease in retail stores revenues, a 11.9% decrease in revenues from advertising. Mexican non-aeronautical revenues per workload unit increased 1.7% from Ps. 166.5 million in 2024 to Ps. 169.2 million in 2025.
Revenues from construction services increased 158.1% from Ps. 2,848.3 million in 2024 to Ps. 7,350.3 million in 2025, mostly due to an increase in capital improvements and other investments in concessioned assets at our Mexican airports.
Our revenues from regulated sources in 2025 were Ps. 19,794.8 million, a 3.9% increase compared to Ps. 19,050.0million in 2024, mainly due to the increase in total passenger traffic and the annual increase in our regulated rates. During 2025, Ps. 10,092.3 million of our revenues was derived from non-regulated sources, a 7.0% increase from the Ps. 9,434.5 million of revenues derived from non - regulated sources in 2024. This increase was primarily due to the 7.1% increase in commercial revenues described above, from Ps. 9,143.4 million in 2024 to Ps. 9,788.9 million in 2025.
Revenues by Airport
Aeronautical revenues increased by 1.3% from Ps. 10,414.2 million in 2024 to Ps. 10,544.8 million in 2025 at Cancún Airport, mainly due to (i) a 2.7% increase in passenger charges; (ii) a 1.8% increase in passenger walkway charges and (iii) a 1.3% increase in airport security charges. Non-aeronautical revenues decrease at Cancún Airport by 1.2% from Ps. 6,424.7 million in 2024 to Ps. 6,344.9 million in 2025, mainly due to the decrease in passenger traffic in 2025. Construction services revenues at Cancún Airport increased by 225.6% from Ps. 1,488.9 million in 2024 to Ps. 4,847.8 million in 2025, due to an increase in capital improvements and investments in concessioned assets at that airport. Total revenues increased by 18.6% from Ps. 18,327.8 million in 2024 to Ps. 21,737.5 million in 2025 at Cancún Airport, largely due to the increase in aeronautical and construction services revenues. Revenues per workload unit at Cancún Airport increased by 23.0% from Ps. 593.1 in 2024 to Ps. 729.5 in 2025, primarily because of the increase in aeronautical services and construction services revenues.
129
Aeronautical revenues increased by 9.7% from Ps. 1,122.0 million in 2024 to Ps. 1,230.3 million in 2025 at Mérida Airport, mainly due to a 6.5% increase in passenger traffic and a 10.1% in passenger fees charged at that airport. Non-aeronautical revenues increased by 8.6% at Mérida Airport from Ps. 268.6 million in 2024 to Ps. 291.6 million in 2025, principally due to a 8.1% increase in commercial revenues caused by increased passenger traffic, construction services revenues increased from Ps. 177.3 million in 2024 to Ps. 192.5 million in 2025, due to an increase in capital improvements and investments in concessioned assets at Merida Airport. Revenues overall increased by 9.3% from Ps. 1,567.9 million in 2024 to Ps. 1,714.4 million in 2025 at Mérida Airport, due to the increase in aeronautical services, non-Aeronautical services and construction services revenues from 2024 to 2025. Revenues per workload unit at Mérida Airport increased by 4.1% from Ps. 392.0 in 2024 to Ps. 408.1 in 2025, principally due to the increase in aeronautical services and construction services revenues.
Aeronautical revenues increased by 1.3% from Ps. 462.3 million in 2024 to Ps. 468.3 million in 2025 at Villahermosa Airport, due to a 1.0% increase in passenger charges, an 8.5% increase in landing charges, a 4.3% increase in documentary baggage inspection and 3.4% increase in other airport services. Non - aeronautical revenues decreased at Villahermosa Airport by 2.7% from Ps. 85.4 million in 2024 to Ps. 83.1 million in 2025, due principally to a decrease of 4.3% in commercial revenues and passenger traffic. Construction services revenues increased by 66.4% from Ps. 88.5 million in 2024 to Ps. 147.3 million in 2025 primarily due to an increase in capital improvements and investments in concessioned assets. Revenues increased by 9.8% from Ps. 636.2 million in 2024 to Ps. 698.7 million in 2025 at Villahermosa Airport, largely due to the increase in construction services and aeronautical revenues. Revenues per workload unit at Villahermosa Airport increased by 17.2% from Ps. 397.6 in 2024 to Ps. 465.8 in 2025, primarily due to the increase in construction services.
Aeronautical revenues at our other six Mexican airports increased by 5.9% from Ps. 1,917.1 million in 2024 to Ps. 2,029.8 million in 2025, due to the 2.7% increase in passenger traffic and a 6.8% increase in passenger fees charges, a 6.4% increase in airport security charges and 10.2% in other services at those airports. Non - aeronautical revenues increased by 8.4% from Ps. 277.6 million in 2024 to Ps. 301.0 million in 2025, due principally to a 5.5% increase in commercial revenues and increased passenger traffic. Construction services revenues increased from Ps. 442.0 million in 2024 to Ps. 1,373.6 million in 2025, due to an increase in capital improvements and investments in concessioned assets at the other six Mexican Airports. Revenues increased by 40.5% from Ps. 2,636.8 million in 2024 to Ps. 3,704.4 million in 2025 at the other six Mexican airports, due primarily to the increase in aeronautical revenues and construction services revenues. Revenues per workload unit at our other six Mexican airports increased by 38.2% from Ps. 446.9 in 2024 to Ps. 617.4 in 2025, principally due to the increase in revenues from construction services.
Aeronautical revenues at the LMM Airport increased 7.4% from Ps. 2,208.1 million in 2024 to Ps. 2,371.5 million in 2025, primarily due to an 3.0% increase in passenger traffic. Non - aeronautical revenues at the LMM Airport increased 15.3% from Ps. 1,981.7 million in 2024 to Ps. 2,284 in 2025. Construction services revenues at the LMM Airport increased 22.9% from Ps. 626.2 million in 2024 to Ps. 769.9 million in 2025, principally due to renovation works in Terminal D’s parking lot, flight information area and improvements to the airport security system.
Aeronautical revenues at our six Colombian airports increased 11.3% from Ps. 2,465.4 million in 2024 to Ps. 2,743.1 million in 2025, primarily due to a 4.0% increase in passenger traffic. Non-aeronautical revenues at our Colombian airports increased 23.8% from Ps. 857.3 million in 2024 to Ps. 1,061.5 million in 2025. Construction services revenues at our Colombian airports decreased 24.0% from Ps. 25.4 million in 2024 to Ps. 19.3 million in 2025, primarily due to lower capital investment.
Revenues from our parent holding company and our administrative services companies increased by 1.6% from Ps. 593.5 million in 2024 to Ps. 603.0 million in 2025, due to the increase in payments by our operating subsidiaries under intercompany agreements related to administrative services. These revenues are intercompany and are therefore eliminated in consolidation.
Operating Expenses
Total operating expenses were Ps. 20,243.5 million in 2025, a 46.6% increase from the Ps. 13,813.0 million recorded in 2024. The increase in operating expenses in 2025 was primarily due to an increase in the costs of construction, depreciation and amortization, and cost of services. As a percentage of total revenues, operating expenses represented 54.4% of total revenues in 2025 as compared to 44.1% of total revenues in 2024. Mexican operating costs per workload unit increased 57.9%, from Ps. 205.6 per workload unit in 2024, to Ps. 324.7 per workload unit in 2025, primarily due to an increase in construction costs.
130
Cost of services increased 15.2% from Ps. 5,363.6 million in 2024 to Ps. 6,180.8 million in 2025 cost of services expenses increased 15.2%, mainly due to (i) a 13.5% increase in employee costs from Ps. 1,513.1 million in 2024 to Ps. 1,717.7 million in 2025, mainly attributed to salary increase in Mexico, Puerto Rico and Colombia, (ii) a 10.1% increase in safety and security costs, from Ps. 864.0 million in 2024 to Ps. 951.4 million in 2025, (iii) a 7.6% increase in electricity services, from Ps. 549.0 million in 2024 to Ps. 590.9 million in 2025, (iv) a 14.7%, increase in maintenance and preservation costs, from Ps. 829.5 million in 2024 to Ps. 951.6 million in 2025, (v) a 63.1% increase in professional services, from Ps. 323.2 million in 2024 to Ps. 527.2 million in 2025.
Administrative expenses increased 8.3% from Ps. 319.6 million in 2024 to Ps. 346.0 million in 2025. This increase was primarily attributable to increases in administrative salaries.
Technical assistance fees increased from Ps. 400.8 million in 2024 to Ps. 400.9 million in 2025, and government concession fees increased by 5.7% from Ps. 2,557.7 million in 2024 to Ps. 2,704.7 million in 2025, mainly due to an increase in aeronautical and commercial revenues, as a consequence of the increase in passengers as well as the increase in concession fees paid with respect to our Colombian airports and LMM Airport.
Construction costs were Ps. 7,350.3 million in 2025 and Ps. 2,848.3 million in 2024. The increase was due to an increase in capital expenditures in Mexico. Because we hire a third party to provide all of our construction and upgrade services, our revenues in Mexico, Colombia and Puerto Rico relating to construction or upgrade services are equal to our expenses for those services.
Depreciation and amortization costs increased from Ps. 2,323.0 million in 2024 to Ps. 3,260.8 million in 2025. This increase was principally the result of the adjustment of the concession amortization method at the airports in Colombia and the depreciation of new investments in fixed assets and improvements made to concessioned assets in Mexico and Puerto Rico.
131
Operating Expenses by Airport
Operating expenses for Cancún Airport were Ps. 10,763.5 million in 2025, a 50.1% increase from the Ps. 7,170.6 million recorded in 2024. This increase was a result of an 12.1% increase in employee costs, a 225.6% increase in construction costs from Ps. 1,488.9 million in 2024 to Ps. 4,847.8 million in 2025, a 11.5% increase in safety and security costs, a 1.5% increase in maintenance costs, a 0.2% increase in government concession fees, a 7.7% increase in professional services as well as a 8.2% increase in depreciation and amortization, partially offset by a 1.0% decrease in cost of sales from directly operated stores. Operating expenses per workload unit for Cancún Airport were Ps. 361.0 in 2025, a 55.6% increase from the Ps. 232.0 recorded in 2024.
Operating expenses for Mérida Airport were Ps. 901.3 million in 2025, a 7.4% increase from the Ps. 839.0 million recorded in 2024. This increase was primarily due to a 8.6% increase in construction costs from Ps. 177.3 million in 2024 to Ps. 192.5 million in 2025, a 3.0% increase in professional services, as well as a 9.4% increase in government concession fees, a 8.7% increase in maintenance costs, a 11.2% increase in safety and security costs and a 3.7% increase in depreciation and amortization, partially offset by a 11.1% decrease in technical assistance fees and a 4.4% decrease in energy costs. Operating expenses per workload unit for Mérida Airport were Ps. 214.4 in 2025, a 2.3% increase from the Ps. 209.6 recorded in 2024.
Operating expenses for Villahermosa Airport were Ps. 412.5 million in 2025, a 20.4% increase from the Ps. 342.6 million recorded in 2024. This increase was primarily due to a 66.4% increase in construction costs from Ps. 88.5 million in 2024 to Ps. 147.3 million in 2025, a 14.5% increase in safety and security costs, a 4.8% increase in depreciation and amortization, a 1.0% increase in professional services, and a 0.7% increase in government concession fees. These increases were partially offset by a 10.3% decrease in maintenance services, a 1.7% decrease in energy costs and a 4.9% decrease in technical assistance fees. Operating expenses per workload unit for Villahermosa Airport were Ps. 274.9 in 2025, a 28.4% increase from the Ps. 214.1 recorded in 2024.
Operating expenses for our six other Mexican airports were Ps. 2,483.8 million in 2025, a 68.6% increase from the Ps. 1,473.1 million recorded in 2024, principally due to a 210.8% increase in construction costs from Ps. 442.0 million in 2024 to Ps. 1,373.6 million in 2025 in connection with our Mexican master development programs, a 5.9% increase in government concession fees, 5.7% increase in depreciation and amortization, a 14.9% increase in safety and security costs, a 16.3% increase in cleaning cost, a 5.2% increase in professional services, as well as a 4.7% increase in maintenance costs. These increases were partially offset by a 1.1% decrease in technical assistance fees. Operating expenses per workload unit for our other six Mexican airports were Ps. 413.9 in 2025, a 65.8% increase from the Ps. 249.7 recorded in 2024.
Operating expenses for the LMM Airport were Ps. 3,804.6 million in 2025, compared to Ps. 3,287.5 million in 2024. The increase was mainly due to a (i) a 17.4% increase in the cost of services from Ps. 1,733.1 million in 2024 to Ps. 2,034.5 million in 2025, a (ii) 10.9% increase in salaries and employer contributions, a 10.5% increase in electricity services, a 82.0% increase in maintenance costs (iii) a 22.9% increase in construction costs from Ps. 626.2 million in 2024 to Ps. 769.9 million in 2025,as a result of the renovation of Terminal D, multilevel parking solar panels, and reconstruction of Runway 8/26, (iv) a 6.2% increase in depreciation and amortization from Ps. 728.6 million in 2024 to Ps. 774.1 million in 2025, and (v) a 13.3% increase in concession fees from Ps. 199.6 million in 2024 to Ps. 226.1 million in 2025, under the concession agreement.
Operating expenses for our Colombian airports were Ps. 2,826.7 million in 2025, compared to Ps. 1,807.2 million in 2024. The increase was primarily due to a 194.5% increase in depreciation and amortization, which was driven by the change in the amortization of the expected useful life of Airplan’s concession (which was accelerated to 2027), a 14.7% increase in concession fees from Ps. 629.9 million in 2024 to Ps. 722.7 million in 2025, a 16.2% increase in cost of services due to a 17.3% increase in salaries and employer contributions, a 6.6% increase in electricity services, and a 35.9% increase in expenses in safety and security expenses, These increases were partially offset by the cost of construction decreased 24.4% from Ps. 25.4 million in 2024 to Ps. 19.2 million in 2025, primarily due to a lower capital investment.
Operating expenses for our parent holding company and our administrative services companies were Ps. 62.8 million in 2025, a 25.6% increase from the Ps. 50.0 million recorded in 2024, principally due to an increase in insurance costs and increase in employees’ costs.
132
Operating Income
Operating income decreased by 3.0% from Ps. 17,519.8 million in 2024 to Ps. 16,993.9 million in 2025. This decrease is mainly attributable to the increase in operating expenses, particularly a 40.4% increase in depreciation and amortization, a 8.3% increase in general and administrative expenses, a 5.7% increase in government concession fees, a 15.2% increase in costs of services,a 4.3% increase in aeronautical revenues and a 6.1% increase in non-aeronautical revenues in 2025.
Operating Income by Airport
Operating income for Cancún Airport decreased by 1.6% from Ps. 11,157.2 million in 2024 to Ps. 10,974.0 million in 2025, primarily due to a 1.2% decrease in non-aeronautical revenues. Additionally, commercial revenues decreased by 0.4% due to lower passenger traffic, and the increase in operating expenses, particularly professional fees paid in connection with the acquisition of URW Airports, LLC and the acquisition of CPC Aeroportos. Operating income per workload unit at Cancún Airport increased 2.1% from Ps. 361.0 in 2024 to Ps. 368.5 in 2025.
Operating income for Mérida Airport increased by 11.6% from Ps. 728.9 million in 2024 to Ps. 813.1 million in 2025, mainly due to a 9.7% increase in aeronautical revenues as a result of higher passenger traffic, as well as a 8.6% increase in non-aeronautical revenues. Operating income per workload unit at Mérida Airport increased 6.3% from Ps. 182.2 in 2024 to Ps. 193.7 in 2025.
Operating income for Villahermosa Airport decreased by 2.6% from Ps. 293.7 million in 2024 to Ps. 286.2 million in 2025, this decrease in operating income is mainly attributable to the increase in operating expenses in 20.4% and increase in 1.3% on aeronautical services due to higher passenger traffic. Operating income per workload unit at Villahermosa Airport increased 4.0% from Ps. 183.5 in 2024 to Ps. 190.9 in 2025.
Operating income for our six other Mexican airports increased by 4.9% from Ps. 1,163.7 million in 2024 to Ps. 1,220.6 million in 2025, principally due to a 5.9% increase in aeronautical revenues and a 8.4% increase in non-aeronautical revenues due to higher passenger traffic. Operating income per workload unit at the other six Mexican airports increased 3.2% from Ps. 197.2 in 2024 to Ps. 203.5 in 2025.
Operating income for the LMM Airport increased by 6.0% from Ps. 1,528.5 million in 2024 to Ps. 1,620.8 million in 2025 due to, a 15.7% increase in operating expenses. Such increase was due to (i) a 17.4% increase in the cost of services from Ps. 1,733.1 million in 2024 to Ps. 2,034.5 million in 2025, (ii) a 2.0% increase in safety, security and insurance, (iii) a 6.2% increase in depreciation and amortization and (iv) a 13.3% increase in concession fees, partially offset by the increase in aeronautical and non-aeronautical revenues as a result of higher passenger traffic.
Operating income for our six Colombian airports was Ps. 997.2 million in 2025, compared to Ps. 1,540.9 million in 2024. This decrease was primarily driven by a 56.4% increase in operating expenses resulting from a change in the depreciation and amortization method following management’s review of Airplan’s intangible asset base, which was based on a change in the accounting estimate of the concession’s useful life due to its regulated component. The expected useful life of the intangible assets was adjusted and is now estimated to end in 2027, earlier than originally anticipated, with this component being amortized on an accelerated basis until 2027, reflecting the complete extinction of the benefits associated with the regulated revenue. This was partially offset by a 23.8% increase in non-aeronautical revenues as a result of higher passenger traffic.
Operating income for our parent holding company and our administrative services companies decreased by 1.9% from Ps. 1,107.0 million in 2024 to Ps. 1,086 million in 2025, primarily due to an decrease in revenues and the recovery of costs by our operating subsidiaries transferred to our parent company under intercompany agreements. For additional information, see “Operating Results by Airport”.
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Comprehensive Financing Result
Our comprehensive net financing result was a loss of Ps. 2,029.6 million in 2025 compared to a gain of Ps. 2,860.8 million in 2024. This decrease is due in part to a 85.7% increase in interest expense, from Ps. 826.7 million in 2024 to Ps. 1,535.2 million in 2025, mainly due to two loans obtained by the Company in Mexico during 2025: (i) a credit line with BBVA for Ps. 9,500.0 million for general corporate use, bearing interest at the 28-day TIIEF rate plus 1.25%, contracted on May 22, 2025 and drawn on May 27, 2025; and (ii) a senior unsecured bridge credit facility with JPMorgan Chase Bank, N.A. for a total principal amount of Ps. 6,390.0 million, entered into on December 5, 2025 in connection with the acquisition of URW Airports, LLC, bearing interest at the applicable TIIE rate plus a variable margin ranging from 75 to 200 basis points, and maturing eighteen months after the closing date.
Additionally, the foreign exchange gain of Ps. 2,072.5 million in 2024 decreased to a foreign exchange loss of Ps. 1,905.8 million in 2025, due to the appreciation of the Mexican peso against the U.S. dollar close and average in 2025, of approximately 13.4% and 7.6%, respectively compared to a depreciation of the Mexican peso against the U.S. dollar average by 22.9% and 8.2% in 2024.
Taxes
Our current income tax provision decreased 22.3%, from Ps. 5,691.9 million in 2024 to Ps. 4,422.4 million in 2025, mainly due to a decrease in our taxable income base in Mexico and Colombia attributed to the recovery of activity in these countries.
Our deferred tax provision decreased from a deferred tax loss of Ps. 650.5 million in 2024 to a gain of Ps. 388.1 million in 2025, mainly due to: (i) the initial recognition of deferred ISR on undistributed accumulated profits of investments in the Puerto Rico and Colombia businesses amounting to Ps. 710.9 million in 2024 and a decrease in the related deferred tax liability in Colombia in 2025 of Ps. 225.0 million; (ii) the favorable impact of the change in the amortization method of the concession in Colombia of Ps. 398 million, and (iii) partially offset by the tax benefit of the activation of tax loss carryforwards by Aerostar in 2024 of Ps. 42.7 million.
Our overall effective tax rate in 2025 and 2024 was 32.0%, and 37.0%, respectively, mainly due to the decrease (i) in the deferred tax due the initial recognition of deferred ISR on undistributed accumulated profits of investments in the Puerto Rico and Colombia businesses amounting to Ps. 710.9 million in 2024 and a decrease in the related deferred tax liability in Colombia in 2025 of Ps. 225.0 million, and (ii) the favorable impact of the change in the amortization method of the concession in Colombia of Ps. 398 million, and (iii) partially offset by the initial recognition of Deferred ISR of Cozumel Airport.
Net Income
Net income decreased 22.1% from Ps. 14,030.4 million in 2024 to Ps. 10,924.7 million in 2025. This decrease was mainly a result of a 15.2% increase in cost of services, a shift from a foreign exchange gain of Ps. 2,072.5 million in 2024 to a foreign exchange loss of Ps. 1,905.8 million in 2025 and an 85.7% increase in interest cost. This was partially offset by a 4.3% and 6.1% increase in aeronautical and non-aeronautical revenues, respectively.
Results of operations for the year ended December 31, 2024 compared to the year ended December 31, 2023
For a comparison of the results of operations for the year ended December 31, 2024 as compared to the year ended December 31, 2023, see “Item 5—Operating and Financial Review and Prospects—Results of operations for the year ended December 31, 2024 compared to the year ended December 31, 2023” in our Fiscal Year 2024 Form 20-F, as filed with the SEC on April 10, 2025.
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Liquidity and Capital Resources
Sources of Liquidity
Historically, our operations, financing and investing activities were funded through cash flow from operations, which has generally been used to cover operating expenses, to make dividend payments and to increase our cash balances. However, in 2017, we incurred indebtedness to fund our investments in accordance with our Mexican Master Development Plans and to acquire the interest in our Colombian airports and our additional interest in Aerostar. See “—Indebtedness—Indebtedness in Mexico.” In 2025, we used Ps. 24,000.0 million to pay dividends. In 2024, we used Ps. 6,277.8 million to pay dividends. As of December 31, 2023, we had Ps. 13,872.9 million in cash and cash equivalents. As of December 31, 2024, we had Ps. 20,083.4 million in cash and cash equivalents. As of December 31, 2023, we had investments in long-term financial instruments classified as non-recurrent assets equal to Ps. 1,818.9 million, while as of December 31, 2024, we had Ps. 1,537.7 million mainly due to the fact that during 2024 we sold certain financial instruments maturing in March 2027. On December 5, 2025, the Company entered into a credit agreement with JPMorgan Chase Bank, N.A. in the amount of Ps. 6,390 million at an annual interest rate equivalent to the 28-day TIIEF plus an applicable margin of 0.75 basis points, maturing in May 2027, which was used to acquire URW Airports. As of December 31, 2025, other than the credit agreement used to acquire URW Airports, we didn’t have investments in long-term financial instruments, mainly because the company sold the financial instruments maturing on January 23, 2030. As of December 31, 2025, we had Ps. 11,116.3 million in cash and cash equivalents.
Cash Flows for the year ended December 31, 2025 as compared to cash flows for the year ended December 31, 2024
In 2025, we generated Ps. 12,348.6 million in cash flow from operating activities, a decrease of 20.7% from Ps. 15,571.0 million in 2024, mainly due to an increase in recoverable taxes, an increase in accounts receivable, partially offset by an increase in income tax payments, a decrease in accounts payable. As of December 31, 2025, income before income taxes was Ps. 14,958.9 million, which reflects an decrease of 26.6% compared to 2024. In 2025 our income taxes payments were Ps. 6,619.4 million, representing a 47.4% increase compared to 2024.
In 2025, the cash flow used in financing activities was Ps. 10,119.4 million, which represents an increase of 13.4% with respect to the Ps. 8,918.4 million cash flow used in financing activities in 2024. This increase was mainly due to (i) an increase in the principal amounts paid under our Mexican loans, under which Ps. 5,175.0 million were repaid during 2025, compared to payments amounting to Ps. 538.7 million in 2024, (ii) an increase in a payment of Ps. 1,371.1 million in interests due under the aforementioned outstanding loans, compared to a payment of Ps. 938.2 million in interests due under these loans in 2024, (iii) an increase in dividends paid amounting to Ps. 24,000.0 million compared to dividends paid totaling Ps. 6,277.8 million in 2024, and (iv) a payment of Ps. 263.1 million in principal amounts due under Aerostar’s senior secured notes due 2035, compared to payments amounting to Ps. 224.9 million in 2024. The increase in cash flow was partially offset by the obtainment of various bank facilities for an aggregate amount of Ps. 21,065.0 million, namely (i) a Ps. 9,500.0 bank loan from BBVA Mexico used for capital expenditures in Cancun, (ii) a Ps. 6,400.0 bank loan from JPM used for the URW acquisition, and (iii) a Ps. 5,200.0 bank loan from Santander used for working capital purposes.
Cash flow used in investments during 2025 was Ps. 10,111.9 million, representing an increase of 267.3% compared to the Ps. 2,753.3 million in 2024, mainly as a result of: (i) new investments in concession assets of Ps. 7,807.8 million in 2025, a 77.7% increase from Ps. 4,394.5 million in 2024; (ii) a Ps. 5,112.1 million payment for the acquisition of ASUR Airports LLC; (iii) an 36.6% increase in used restricted cash corresponding to the Aerostar’s PFC revenue; and (iv) a $3.0 million escrow deposit by ASUR US Commercial Airports to secure any post-closing purchase price adjustment in connection with the acquisition of the U.S. mainland airports business in 2025. These increases were partially offset by the repayment in full of our outstanding notes issued in U.S. dollars maturing in 2030, in a principal amount of Ps. 1,537.7 million.
Cash Flows for the year ended December 31, 2024 as compared to cash flows for the year ended December 31, 2023
For a comparison of the cash flows for the year ended December 31, 2024 as compared to the cash flows for the year ended December 31, 2023, see “Item 5—Operating and Financial Review and Prospects—Liquidity and Capital Resources—Cash Flows for the year ended December 31, 2024 as compared to cash flows for the year ended December 31, 2023” in our Fiscal Year 2024 Form 20-F filed with SEC on April 16, 2025.
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Indebtedness
As of December 31, 2025, we had Ps. 27,486.6 million in consolidated outstanding indebtedness. As of December 31, 2025, we had no contracts for interest rate or foreign currency swaps.
Indebtedness in Mexico
In the fourth quarter of 2011, Aeropuerto de Cancún obtained authorization for two new bank loans from Banamex and BBVA of U.S.$300.0 million and Ps. 1,500.0 million, respectively. These loans remain subject to certain conditions precedent, including the negotiation of definitive documentation for the loans. To date, ASUR has not yet made use of the authorized credit lines. Aeropuerto de Cancún purchased the initial 92.42% interest in Airplan for an aggregate price of approximately U.S.$201.6 million, subject to pricing adjustments and pursuant to a series of agreements with the respective shareholders of Airplan. We paid U.S.$69.6 million of the purchase price with cash on hand, and obtained an unsecured loan from BBVA in April 2017 to pay the balance of the purchase price. The loan had a term of one year and an interest rate calculated on the basis of the 28-day TIIE plus 0.60% from July 31 to October 31, 2017; TIIE plus 0.85% from October 31, 2017 to January 31, 2018; TIIE plus 1.10% from January 31 to April 30, 2018 and TIIE plus 1.60% from April 30 to July 31, 2018. This loan was repaid in October 2017 with the proceeds of two loans obtained by us, through Aeropuerto de Cancún, of a principal amount of Ps. 2,000.0 million each, one seven-year term loan with BBVA at a 28-day TIIE rate plus 125 basis points maturing in October 2024, and another five-year term loan with Banco Santander at a 28-day TIIE rate plus 125 basis points maturing in October 2022. The remaining balance on the BBVA loan was repaid on October 13, 2021, and on October 15, 2021, we, through our Aeropuerto de Cancún, entered into a seven-year loan agreement with BBVA for a principal amount of Ps. 2,000.0 maturing October 2028, with a 28-day TIIE rate plus an applicable margin. The applicable margin in the BBVA loan is calculated on the following basis: if our net leverage ratio is less than 1.50:1.00, the applicable margin will be 140 basis points; if our net leverage ratio is between 1.50:1.00 and 2.50:1.00, the applicable margin will be 165 basis points, and if our net leverage ratio is greater than 2.50:1.00, the applicable margin will be of 190 basis points. During 2023 we repaid Ps. 150.0 million of the BBVA loan in three equal installments in January, July and October. During 2024 we repaid Ps. 100 million of the BBVA loan in two equal installments in January and April. On June 11, 2024, the Company amended the BBVA loan to extend the maturity date to July 11, 2029 and change the interest rate to a 28-day TIIE rate plus an applicable margin of 1.35 points.
On September 29, 2021, we prepaid the remaining Ps. 2,000.0 million balance on the Santander loan and concurrently, through our Aeropuerto de Cancún, we obtained a three-year term loan from Santander for a principal amount of Ps. 2,650.0 million maturing on September 28, 2024 at a 28-day TIIE rate plus 150 basis points. In November 2022, we paid Ps. 650.0 million in principal amounts in connection with the Santander loan. During 2023, we repaid Ps. 1,325.0 million of the Santander loan in two equal installments in March and September. On March 26, 2024, the Company amended its debt with Santander to extend the maturity date through September 26, 2025, at a remaining principal of Ps. 675.0 million. On September 26, 2025, the loan was repaid in full. The Company conducted an assessment to determine whether there was a substantial change to the indebtedness due to the amendment, and concluded there was no material impact to such indebtedness. The effective interest rate for this loan was calculated at an annual rate of 9.22%, taking into account all initial fees, additional costs, and other associated expenses. On September 26, 2025, the Company entered into a simple revolving credit line agreement with Banco Santander in the amount of Ps. 675.0 million maturing on September 26, 2027, subject to an annual effective rate of 9.22%.
We have guaranteed our Aeropuerto de Cancún obligations under these loans. While the BBVA and Banco Santander loans are outstanding, we and our subsidiaries are not permitted to create any liens upon any of our property, make any fundamental change to our corporate structure or sell any of our assets that exceed more than 10.0% of our consolidated total assets as of the most recent fiscal quarter prior to the sale. These loans require that we and our subsidiaries maintain a consolidated leverage ratio equal to or less than 3.50:1.00 and a consolidated interest coverage ratio equal to or greater than 3.00:1.00 as of the last day of each fiscal quarter. If we fail to comply with these covenants, the loans restrict our ability to pay dividends to our shareholders. As of December 31, 2024, and 2025, the consolidated leverage ratio calculated under the BBVA and Santander agreements was 0.70:1.00 and 1.40:1:00, respectively.
On June 29, 2020, we contracted a credit line with BBVA for Ps. 1,500 million. The credit line had a term of eighteen months, maturing December 29, 2021, and an interest rate calculated on the basis of the TIIE plus 1.50%, and could be used for general corporate purposes, and expenses and commissions related to the credit. As of December 31, 2024, we had not used the credit line and the line was terminated.
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On May 22, 2025, we drew down a credit line with BBVA for Ps. 9,500 million, for general corporate purposes, maturing on May 21, 2027, repayable in a single bullet payment at maturity, bearing interest at the 28-day TIIEF rate plus 1.25%. We used the credit line on May 27, 2025.
On November 21, 2025, we entered into a credit agreement with Banco Santander in the amount of Ps. 3.5 million maturing on February 22, 2026, subject to a one-day TIIEF rate plus 0.50 basis points. We repaid this loan on December 11, 2025.
On December 3, 2025, we entered into a simple revolving credit line agreement with Banco Santander in the amount of Ps. 1.0 million maturing on March 4, 2026, subject to a one-day TIIEF rate plus 0.50 basis points. We repaid this loan on December 11, 2025.
On December 5, 2025, in connection with the acquisition of URW Airports, LLC, our subsidiaries Aeropuerto de Cancún and ASUR US Commercial Airports LLC, as borrowers, and the Company, as guarantor, entered into a senior unsecured bridge credit facility for a total principal amount of Ps. 6,390 million with JPMorgan Chase Bank, N.A. as sole lender, administrative agent, sole bookrunner and sole lead arranger (the “Bridge Credit Agreement”). The Bridge Credit Agreement is governed by New York law contains terms and conditions that are customary for similar financings. The Bridge Credit Agreement matures eighteen (18) months after the closing date, and bears interest at the applicable TIIE rate for each interest period plus a variable margin that increases incrementally over time, ranging from 75 basis points per annum during the first 90 days to 200 basis points per annum from day 451 through maturity.
The Bridge Credit Agreement contains several covenants that, among others, (a) restrict the borrowers’ ability to (i) create any lien on any property or asset, other than liens existing on the closing date, liens securing the Bridge Credit Agreement, tax liens being contested, statutory liens, and other customary exceptions; (ii) merge, consolidate, liquidate or dissolve, or dispose of substantially all assets, other than certain subsidiary transactions and dispositions to credit parties; (iii) enter into sale and leaseback transactions exceeding the greater of Ps. $6,200 million or 10% of consolidated total assets; (iv) declare or pay restricted payments if a default or event of default has occurred and is continuing; and (v) enter into transactions with affiliates except in the ordinary course of business on terms no less favorable than arm’s-length terms, subject to certain customary exceptions; and (b) require the borrowers to maintain a consolidated interest coverage ratio of at least 3.00 to 1.00 and a consolidated leverage ratio not exceeding 3.50 to 1.00 as of the last day of each fiscal quarter.
Indebtedness in Puerto Rico
On March 21, 2013, our subsidiary Aerostar entered into a U.S.$50.0 million capital expenditure facility and a secured U.S.$10.0 million revolving credit facility with RBC Royal Bank, UBS Financial Services and FirstBank Puerto Rico. Additionally, on or about March 21, 2013 Aerostar issued 5.75% senior secured notes due March 22, 2035, in an aggregate principal amount of U.S.$350.0 million through a private placement. On June 24, 2015, Aerostar issued 6.75% senior notes due March 22, 2035 in an aggregate principal amount of U.S.$50.0 million to refinance the aforementioned capital expenditure facility. In May 2022, Aerostar renegotiated the terms of its U.S.$50.0 million principal amount of 6.75% senior secured notes.
On November 26, 2024, Aerostar renewed the secured revolving credit line with Banco Popular de Puerto Rico of U.S.$10.0 million maturing December 18, 2027. The interest is calculated at the interest rate that fluctuates between 0.75% and 3.0% plus a default interest rate of 2.0%. Aerostar was financially obligated to keep a debt coverage ratio above 1.00:1.00 at the end of each quarter. As of December 31, 2025, the Company has not used the credit line.
On December 30, 2020 Aerostar entered into an unsecured revolving credit line with Banco Popular de Puerto Rico of U.S.$ 20.0 million. The interest is calculated at an interest rate that fluctuates between 0.5% and 3.0% and Aerostar pays a rate of 0.15% for unused credit, which is calculated on the average amount of unused principal during the year. Pre-payments are permitted at any time. To date, Aerostar has not drawn down the credit line.
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On July 21, 2022, Aerostar issued 4.92% senior secured notes due 2035 in an aggregate principal amount of U.S.$200 million through a private placement. The terms of the notes require that Aerostar and its subsidiaries maintain a debt service coverage ratio of at least 1.10:1.00 through the stated maturity date of the notes. Failure to comply with these covenants would result in all amounts owed under the notes to become due and payable immediately. As of December 31, 2024, and 2025, the debt service coverage ratio calculated under the notes was 2.15:1.00 and 2.00:1:00, respectively. If we fail to comply with these covenants, our ability to pay dividends to our shareholders will be restricted.
Aeropuerto de Cancún and its joint venture partner PSP have pledged their share ownership in Aerostar as collateral for all of these senior secured notes. Since June 1, 2017, we have consolidated Aerostar’s assets and liabilities into our financial statements.
While the senior secured notes are outstanding, Aerostar is not permitted to create any liens other than permitted liens upon any of our property, make any fundamental change to our corporate structure, or sell more than U.S.$35.0 million of our assets per year.
Indebtedness in Colombia
On June 1, 2015, our subsidiary Airplan entered into a 12-year syndicated credit agreement of COP$440,000.0 million with Bancolombia S.A., Banco de Bogotá S.A., Banco Corpbanca Colombia S.A., Banco Davivienda S.A., Banco de Occidente S.A., Banco Popular S.A., Banco AV Villas S.A. and Servicios Financieros S.A. Serfinansa Compañía de Financiamiento. The terms include a grace period of three years, quarterly principal and rate payments, an interest rate based on the Tasa de Redescuento, or Rediscount Rate, plus 1.5% for one tranche and an interest rate based on the Depósitos Termino Fijo, or Fixed Term Deposits (“DTF”), plus 4% for a second tranche. Disbursement of funds was subject to certain conditions precedent, including the creation of a trust for the payment of the syndicated credit agreement through its subaccount, Subcuenta de Deuda, and the resources corresponding to the funds for capital and interest payment. The use of the proceeds of this syndicated credit agreement is limited to the payment of debt and the financing of necessary investments for the execution of the obligatory and complementary works under the concession agreement. In addition, the syndicated credit agreement requires Airplan to keep the concession agreement and the trust agreement in force and to make principal and interest payments on time. Failure to comply with these covenants would result in all amounts owed under the facility becoming due and payable immediately.
The syndicated credit agreement was amortized by Airplan during 2023, 2024 and 2025. The outstanding amount of the credit agreement was COP$167,897.1 million as of December 31, 2023, COP$67,897.1 million as of December 31, 2024, and COP$67,897.1 million as of December 31, 2025. In April 2023, Banco Popular transferred to Banco de Bogotá its interests under the syndicated loan by issuing promissory notes having the same terms and conditions that those of the original loan. The syndicated credit agreement required Airplan to maintain a debt coverage ratio of at least 2.00:1.20, as calculated pursuant to the terms of such agreement. Lenders granted Airplan a waiver to comply with such debt coverage ratio during the third quarter of 2020 and the first quarter of 2021, which was further extended until the first quarter of 2022. Following the first quarter of 2022, Airplan has complied with the required debt coverage ratio.
Furthermore, in 2017 Airplan entered into two short-term loans with Bancolombia S.A. of COP$5,000.0 million and COP$10,000.0 million. The main terms of these short-term loans included the issuance of a blank promissory note, an interest rate based on Colombia’s banking reference index, the Indicador Bancario de Referencia (“IBR”), plus 2.75%, monthly interest payments and an annual principal payment on the due date. Additionally, in 2017 Airplan entered into a short-term loan with Banco de Bogotá of COP$5,000.0 million. The terms of this short-term loan included the issuance of a blank promissory note, an interest rate based on the IBR plus 2.6%, monthly interest payments and an annual principal payment on the due date. These three short-term loans were fully repaid in 2018. In September 2020, Airplan entered into a short-term loan with Bancolombia S.A. for COP$11,612.0 million. The short-term loan has a term of 10 months and an interest rate based on the DTF plus 1.70%, monthly interest payments and quarterly principal payments. These short-term loans were fully repaid in July 2021.
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Capital Expenditures
Under the terms of our Mexican concessions, every five years our Mexican subsidiary concession holders must present a master development plan to the Ministry of Infrastructure, Communications and Transportation for approval. Each master development plan includes concession holders’ investment commitments for the succeeding five-year period, including capital expenditures and improvements. Once approved by the Ministry of Infrastructure, Communications and Transportation, these commitments become binding obligations under the terms of our concessions.
In December 2023, the SICT approved each of our current updated master development plans, which went into effect as of January 1, 2024 and will elapse on December 31, 2028. Under the referred master development plans, our total committed investments for the regulated part of our business in all our Mexican Airports during the covered period is equal to Ps. 31,796.5 million. See “Item 4. Information on the Company—Mexican Regulatory Framework—Master Development Plans.”
Our subsidiary Aerostar, as part of its LMM Lease with the PRPA, was required to fund and perform certain upgrades at its sole costs and expense, including landscaping improvement work, repair and replacement of jet bridges and repair and replacement of curbs and walkways, among others. Aerostar completed work on the required upgrades pursuant to the LMM Lease by December 31, 2014. Under the Airport Use Agreements, Aerostar is also required to complete certain initial capital projects in order to bring the condition of the LMM Airport to high level consistent with certain standards set forth by Puerto Rican governmental authorities. For more information on Aerostar’s capital expenditure requirements, see “Item 4—Information on the Company—Puerto Rican Regulatory Framework—Capital Expenditures Required under the LMM Lease and Airport Use Agreements.”
In 2014 and 2016, our subsidiary Airplan reached an agreement with the Colombian government with respect to investment commitments for certain airports, including José María Córdova International Airport, Enrique Olaya Herrera Airport, Los Garzones Airport and El Caraño Airport. The 2014 and 2016 agreements originally had terms of three years and 33 months, respectively. In 2018 and 2019, we executed amendments to the 2014 and 2016 agreements that extended the term of those agreements but did not modify the amount of investment commitments. Under the agreements, Airplan is required to carry out certain projects at our Colombian airports, including renovations of runways and improvements to passenger terminals. For 2018 and 2019, José María Córdova International Airport had committed investments of U.S.$13.3 million and U.S.$9.1 million, respectively. For 2018, El Caraño Airport had committed investments of U.S.$0.8 million. Enrique Olaya Herrera Airport and Los Garzones Airport do not have any investment commitments with the Colombian government for 2018 and 2019. As of March 6, 2020, all projects have been completed. For additional information see “Item 4—Information on the Company—Colombian Regulatory Framework—Committed Investments.”
The following table sets forth our historical investments in Mexico, Puerto Rico and Colombia in the periods indicated.
|
|
(thousands of |
Year ended December 31, |
|
Mexican pesos) |
2023 |
|
1,071,715 |
2024 |
|
4,497,204 |
2025 |
|
7,813,549 |
In 2025, we spent Ps. 6,961.5 million in Mexico on capital expenditures in the nine airports in Mexico, principally attributed to a) the ongoing works for the expansion of Terminal 1 and Terminal 4 and expansion of taxiways at Cancun Airport, b) ongoing works for the terminal building expansions in Oaxaca, Cozumel, Huatulco and Villahermosa, as well as c) equipment renewal at Mexico’s 9 airports.
In 2025, we spent Ps. 29.3 million in Colombia on capital expenditures on projects which included, among others: Phase 1 of the Montería Airport internationalization project, the automation of the parking facilities at Rionegro and Medellín airports, the expansion of the parking facility roofing in Montería, and the acquisition of certain assets required for operations.
In 2025, we spent Ps. 828.1 million in Puerto Rico on capital expenditures on projects which included the design of the multilevel parking expansion, the construction of multilevel parking solar panels and a multilevel parking pedestrian bridge, the configuration of FIS in Terminal D, and reconstruction of an under-vehicle explosive detection system.
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In 2024, we spent Ps. 3,805.7 million in Mexico on capital expenditures in the nine airports in Mexico, principally attributed to a) continuing the expansion of Terminal 1, the commercial platform, and roads at Cancun Airport; b) ongoing work to expand Terminals 3 and 4, as well as improvements to taxiways, platforms, and roads at Cancun Airport; and c) expanding Terminal D and enlarging the migration areas in Terminal D at the LMM Airport.
In 2024, we spent Ps. 26.3 million in Colombia on capital expenditures on projects which included, among others, the purchase of fixed assets.
In 2024, we spent Ps. 665.2 million in Puerto Rico on capital expenditures on projects which included the configuration of FIS in Terminal D, multilevel parking solar panels, and reconstruction of a runway at the LLM Airport. In 2023, we spent Ps. 891.5 million in Mexico on capital expenditures in the nine airports in Mexico, principally attributed to the continuation of the expansion of the terminal building, commercial platform and roads of Merida Airport, as well as the expansion of Terminal 3 and Terminal 4, the platform and the road of Cancun Airport.
In 2023, we spent Ps. 14.3 million in Colombia on capital expenditures on projects which included, among others, the purchase of fixed assets.
In 2023, we spent Ps. 465.2 million in Puerto Rico on capital expenditures on projects which included the expansion of Terminal D and FIS reconfiguration, Tony Santana Avenue Pavement Rehabilitation and new Transportation Security Administration (TSA) offices.
In addition, in connection with our US mainland airports, we are expecting to incur capital investment obligations pursuant to our concession agreements at JFK and LAX. At JFK, the Company is required to (or will require its tenants to) invest at least U.S.$104.0 million in JFK Terminal 8 for the construction and installation of improvements during the first three years of the term, which began on July 1, 2023, in addition to at least U.S.$18.5 million in concession area improvements at JFK T8, U.S.$10.0 million in concession area improvements at JFK T1, and U.S.$2.5 million in other improvements at JFK T8. At LAX, the Company is required to (or will require its tenants to) invest at least U.S.$11.1 million in capital investments for the construction and installation of improvements to be completed by January 31, 2028.
We currently intend to fund the investments and working capital required by our business strategy through cash flow from operations and from the indebtedness described above. We may continue to incur debt to finance all or a portion of these investments in the future. We believe our working capital is sufficient for our present requirements, and we anticipate generating sufficient cash to satisfy our long-term liquidity needs.
Item 6.Directors, Senior Management and Employees
Directors
Our Board of Directors is responsible for the management of our business. Pursuant to our bylaws, the Board of Directors must consist of an uneven number of directors determined at an ordinary general meeting of stockholders and is required to have at least seven, but not more than twenty-one, members. Currently, the Board of Directors consists of eleven directors, each of whom is elected or ratified at the annual stockholders’ meeting for a term of one year or until a successor has been appointed.
Our bylaws provide that the holders of Series BB shares are entitled to elect two members and their alternates to the Board of Directors. Our remaining directors are elected by the holders of our Series B shares. Under our bylaws, each stockholder or group of stockholders owning at least 10.0% of our capital stock in the form of Series B shares is entitled to elect one member to the Board of Directors for each 10.0% interest that it owns. The other directors to be elected by the holders of our Series B shares are elected by majority vote of all holders of Series B shares present at the stockholders’ meeting (including stockholders that individually or as part of a group elected a director as a result of their 10.0% stake).
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The following table lists our directors as of the date of this annual report, their title and date of appointment:
Name |
|
Title |
|
Director Since |
Fernando Chico Pardo(1) |
|
Chairman |
|
April 28, 2005 |
Francisco Garza Zambrano(3) |
|
Director |
|
February 28, 2001 |
Rasmus Christiansen(3) |
|
Director |
|
April 26, 2007 |
Aurelio Pérez Alonso(4)(9) |
|
Director |
|
April 26, 2012 |
José Antonio Pérez Antón(2)(5)(9) |
|
Director |
|
April 26, 2012 |
Guillermo Ortiz Martínez(3) |
|
Director |
|
April 26, 2010 |
Barbara Garza Lagüera Gonda (3)(6) |
|
Director |
|
April 23, 2020 |
Pablo Chico Hernández (7) |
|
Director |
|
April 22, 2021 |
Heliane Marie Luise Steden (7) |
|
Director |
|
April 22, 2021 |
Diana María Chavez Varela (7) |
|
Director |
|
April 22, 2021 |
Isabel Prieto Prieto(8)(9) |
|
Director |
|
April 23,2025 |
(1) |
Elected by ITA as holder of Series BB shares. Fernando Chico Pardo is the direct or indirect owner of 50.0% of the shares of ITA and 65,008,564 Series B shares (21.67% of our outstanding shares) as of April 16, 2026. |
(2) |
Elected by ITA as holder of Series BB shares, with Luis Fernando Lozano Bonfil as Alternate. |
(3) |
Independent Director |
(4) |
On April 26, 2012, Aurelio Pérez Alonso was elected a member of the Board of Directors, representing the Series B shares. |
(5) |
On April 26, 2012, José Antonio Pérez Antón was elected as a member of the Board of Directors, representing the Series BB Shares. |
(6) |
On April 23, 2020, Bárbara Garza Lagüera Gonda was elected as a member of the Board of Directors, representing the Series B shares, filling the vacancy left by the resignation of Roberto Servitje Sendra. |
(7) |
On April 22, 2021, Pablo Chico Hernández, Heliane Marie Luise Steden, and Diana María Chavez Varela were elected as members of the Board of Directors, representing the Series B shares. |
(8) |
On April 23, 2025, Isabel Prieto Prieto was elected a member of the Board of Directors, representing the Series B shares. |
(9) |
Beneficially own less than 1.0% of our outstanding shares as of April 16, 2026. |
Fernando Chico Pardo Mr. Fernando Chico Pardo is 74 years old and was appointed Chairman of ASUR’s Board of Directors in April 2005. Mr. Chico Pardo was appointed to the Board of ASUR by ITA, the Company’s Strategic Partner, and represents the BB series of shares. He is the founder and President of the private investment banking enterprise Promecap, S.C., Controlling Shareholder in RLH Properties and Tortuga (hotels), Co-President of the port and rail operator Carrix, Inc., and Chairman and owner of 25% of Grupo Financiero Banamex. Previously, Mr. Chico Pardo has been partner and Acting CEO of the banking institution Grupo Financiero Inbursa, S.A. de C.V. (Mexico), a member of the United Nations Joint Staff Pension Fund Standing Committee, a member of the Board of the United Nations Global Compact, President of the Iberoamericana University Endowment Fund, and Mexico Representative for Standard Chartered Bank (London). Mr. Chico Pardo has also been on the Boards of Directors of Grupo Financiero Inbursa, BBVA Bancomer, Condumex, Grupo Carso, Sanborns Hermanos, Sears Roebuck de México, Bombardier, Proactiva México, and Grupo Posadas de México. He is a philanthropist and active leader in various non-profit organizations dedicated to health, education, journalism, environment, arts and culture.
Francisco Garza Zambrano Mr. Garza is 70 years old and has been a member of our Board of Directors since 2001. He graduated with a degree in Business Administration from the Instituto Tecnológico y de Estudios Superiores de Monterrey and also has a Master’s in Business Administration from Cornell University. He is a member of the boards of directors of Acosta Verde, Autlán, Cydsa, and RLH Properties. He is also on the boards and technical committees for the following non-profit institutions: the University of Monterrey, the Roberto Garza Sada Centre for Art, Architecture and Design of the University of Monterrey, the Bank of Mexico, and Nacional Financiera (NAFIN).
141
Guillermo Ortiz Martínez Mr. Ortiz is 77 years old has been a member of our Board of Directors since 2010. He has been the President of BTG Pactual Latinoamérica and Chairman of the Board of Directors of Grupo Financiero Banorte. Previously, he was Governor of the Bank of Mexico for two terms, from 1998 to 2003, and from 2004 to 2009. From 1994 to 1997, he was Mexico’s Public Finance Minister. Mr. Ortiz was the Deputy Public Finance Minister from 1988 to 1994. Prior to that, between 1984 and 1988, he occupied the position of Executive Director of the International Monetary Fund (IMF). From 1977 to 1984, he occupied positions as Economist, Deputy Manager and Manager at the Bank of Mexico’s Department of Economic Research. Mr. Ortiz entered public service with the federal government as an Economist at the Planning and Budgeting Ministry. During 2009 he was employed as Chairman of the Bank for International Settlements based in Basel, Switzerland. He is currently on the boards of Orbis, Vitro and BTG Pactual.
Rasmus Christiansen Mr. Rasmus Christiansen is 74 years old has been a member of our Board of Directors since 2007. Mr. Christiansen was previously the CEO of Copenhagen Airports International A/S. Prior to that he was the Vice President of Copenhagen Airports International A/S, Director of Development and Acquisitions at Copenhagen Airports International A/S, Director of an import/export concern based in Hungary, Vice President of Dolce International, International Hotel Development & Operations, and CEO of the Scanticon Conference Center. Mr Christiansen’s current positions include board member of Copenhagen Airports International A/S and of Glostrup Park Hotel A/S.
José Antonio Pérez Antón Mr. José Antonio Pérez Antón is 53 years old and has been a member of our Board of Directors since 2012. As Chief Executive Officer of Grupo ADO, one of the largest inter-city bus companies in Mexico, he has broad experience in the transport industry in this country. Mr. Pérez has been a member of the Board of Directors of Grupo ADO since 2005. He has a degree in Industrial Engineering from the Anáhuac University and a Master’s in Intermodal Transport from the University of Denver. Mr. Pérez Antón is currently an independent member of the board of directors of Santander México bank, and is also on the boards of the non-profit institutions CREO and the Mexican Business Council. He is also the Vice President of CANAPAT (Mexico’s National Chamber of Intercity and Tourism Transportation), and is a Councillor at ITI (Intermodal Transportation Institute, based in Denver). He is also a member of the CCE (Mexico’s Business Coordination Board).
Aurelio Pérez Alonso Mr. Pérez Alonso is 54 years old has been a member of our Board of Directors since 2012. He is Deputy Chief Executive Officer of Grupo ADO since 2006, and has been a member of that company’s Board of Directors since 2005. Before joining the Group in 1998, Mr. Pérez Alonso was a consultant for Arthur Andersen. Currently he is also the Chairman of the Board of Directors of CANAPAT (Mexico’s National Chamber of Intercity and Tourism Transportation).
Pablo Chico Hernández Mr. Chico Hernández is 41 years old and has been a member of our Board of Directors since 2021. He graduated from the Iberoamericana University in Mexico City with a degree in Business Administration, and obtained an MBA at Southern Methodist University in Dallas, TX, specialising in Finance and Entrepreneurship. He has worked for Promecap, S.C., and for Prudential Bank Mexico, where he was in charge of a US$100M fund that was indexed to the Mexican Stock Exchange. He currently works for SSA Marine, a marine and rail transport logistics company based in Seattle, Washington.
Bárbara Garza Lagüera Gonda Ms. Garza Lagüera is 66 years old and has been a member of our Board of Directors since 2020. She graduated with Bachelor’s and Master’s Degrees in Business Administration from the Instituto Tecnológico y de Estudios Superiores de Monterrey. She is an active member of the board of directors of FEMSA, and Vice-Chair of the board of directors of Tec de Monterrey Mexico City. She is also a member of the following boards of art and charity associations: Fondo para la Paz, Museo Franz Mayer, Museo de Arte Contemporáneo de Monterrey, and chair of the Committee to Develop the FEMSA Collection (one of the most significant corporate collections of modern and contemporary art in Latin America).
Heliane Marie Luise Steden Ms. Steden is 61 years old and has been a member of our Board of Directors since 2021. She is a managing director at Merrill Lynch and a member of the company’s flagship New York International Office. She joined Merrill Lynch in 1999, after working for Bankers Trust and Deutsche Bank. She is also on the Board of Trustees of the University of Southern California. While studying business administration at USC, Steden was a three-time All American women’s tennis player, and went on to pursue a five-year professional career in tennis. Her endowed scholarship for the Women of Troy tennis programme primarily goes to an international student-athlete.
142
Diana Maria Chavez Varela Ms. Chávez is 54 years old and has been a member of our Board of Directors since 2021. Ms. Chávez has extensive experience leading multi-stakeholder programs focused on sustainable development. She served as Vice-Chair of UNITAR’s Board of Trustees and directed the UN Global Compact’s Regional Center for Latin America and the Caribbean. Additionally, she has led foreign investment projects in emerging economies and was the first woman to chair the UN Forum on Business and Human Rights. Her career spans sustainability, diplomacy, and international mergers. She holds degrees in English literature, national security, negotiation, international relations, and business administration.
Isabel Prieto Prieto Ms. Prieto is 59 years old and has been a member of our Board of Directors since 2025. Ms. Prieto holds a degree in economics from the Instituto Tecnológico Autónomo de México and a master’s degree in public administration from the John F. Kennedy School of Government at Harvard University. She currently serves as National Manager for Mexico at Platzi, one of the largest technology-focused online education platforms in Latin America. She holds positions on the boards of directors of the mining company Baramín and the interconnection service provider Wiwi. Previously, she has held management positions at Oxio and Altán Redes, both in the telecommunications sector, as well as at the Canadian pension fund Caisse de Dépôt de Québec. She was also National Manager at Lippincot & Margulies and an associate consultant in banking investments at J.P. Morgan and James D. Wolfensohn, Inc. Ms. Prieto is Chair of the Board of Trustees of Consejo del Centro de Excelencia e Innovación para los Derechos y Oportunidades de la Niñez (CEIDON).
Senior Management
Pursuant to our bylaws, the holders of Series BB shares are entitled to present the Board of Directors the name or names of the candidates for appointment as chief executive officer, to remove our chief executive officer and to appoint and remove one half of the executive officers. Currently, five executive officers report directly to the chief executive officer, one of whom was appointed by ITA as holder of the BB shares.
The following table lists our executive officers, their current position and year of appointment as an executive officer:
Name |
|
Principal Occupation |
|
Executive Officer Since |
|
Adolfo Castro Rivas(1) |
|
Chief Executive Officer; Director of Finance (Chief Financial and Strategic Planning Officer) |
|
June 1, 2011 |
|
Carlos Trueba Coll |
|
Director of Cancún Airport |
|
March 1, 2010 |
|
Héctor Navarrete Muñoz |
|
Director of Regional Airports |
|
January 15, 2003 |
|
Claudio Góngora Morales |
|
Chief Legal Counsel |
|
April 19, 1999 |
|
Alejandro Pantoja López |
|
Chief Infrastructure and Compliance Officer |
|
August 15, 2013 |
|
Adán Alejandro González Martínez |
|
Chief Commercial Officer |
|
January 13, 2026 |
|
| (1) | Elected by ITA as holder of Series BB shares. |
143
Adolfo Castro Rivas. Mr. Castro was appointed as our Chief Executive Officer in June 2011. Mr. Castro has been our Director of Finance (Chief Financial Officer) since January 2000. Prior to joining ASUR, Mr. Castro was Director of Finance and Administration of Ferrocarril del Sureste S.A. de C.V. Mr. Castro was also Chief Financial Officer of Netcapital, S.A. de C.V., Director of Finance of Grupo Mexicano de Desarrollo, S.A. de C.V., Finance Manager of Grupo ICA S.A.B. de C.V. and an auditor and consultant with Coopers & Lybrand. Mr. Castro is also member of the Board of Directors of Red de Carreteras de Occidente, S.A.B. de C.V. He is 62 years old.
Carlos Trueba Coll. Mr. Trueba has been the Director of Cancún Airport since March 1, 2010. Previously, Mr. Trueba has held a series of administrative positions at Cancún Airport, including Deputy Director of Operations (November 2004). He was Department and Regional Head at the company Aeropuertos y Servicios Auxiliares. He is 62 years old.
Héctor Navarrete Muñoz. Mr. Navarrete is the Director of Regional Airports. Previously, Mr. Navarrete was the Administrator of Mérida Airport, Director of the Board of Culture and Tourism of the state of Yucatán, Coordinator of the Mayan Cultural Project in San Antonio, Texas, and President of the International Council of Latin American and Caribbean Airports for Airports Council International, and is an expert in international civil aviation security. He is 69 years old.
Claudio Góngora Morales. Mr. Góngora has been General Counsel since 1999. He is Legal Director of ASUR (from 2001). Mr. Góngora also served as Legal Director of Azufrera Panamericana, S.A. de C.V., alternating as Legal Advisor for Compañía Exploradora del Istmo, S.A. de C.V. He has been Deputy Legal Director of Comisión de Fomento Minero, as well as Chief Legal Consultant for Grafito de Mexico, S.A. de C.V., Terrenos para Industrias, S.A. de C.V., Terrenos de Jaltipan, S.A. de C.V., Macocozac, S.A. de C.V., Pasco Terminals, Inc. and Pasco International, Ltd. He is 74 years old.
Adán Alejandro González Martínez. Mr. González was designated as our Chief Commercial Officer in January 2026. Previously, he was Director of Commercial Development at Grupo Stiva S.A. de C.V. Mr. González has also held several top management positions at Talisis Holding S.A.P.I. de C.V. He is 41 years old.
Alejandro Pantoja López. Mr. Pantoja was appointed as our Chief Infrastructure and Compliance Officer in August 2013. Previously, he held a series of positions in ASUR, including Administrator of Veracruz Airport (from 2001 to 2013). He has also held executive posts in the companies Internacional de Contenedores de Veracruz and Ferrocarril del Sureste. He is 65 years old.
Share Ownership of Directors and Senior Management
With the exception of the directors set forth in the table below, directors and senior management do not own shares of ASUR. There are no compensation arrangements under which employees may acquire capital stock of ASUR.
Name of Officer/Director |
|
Title |
|
Series B Shares |
|
Percentage of |
|
Fernando Chico Pardo |
|
Chairman |
|
87,958,564 |
|
21.67 |
% |
Aurelio Pérez Alonso(1) |
|
Director |
|
7,136 |
|
— |
|
Guillermo Ortiz Martínez(1) |
|
Director |
|
1,120 |
|
— |
|
José Antonio Pérez Antón(1) |
|
Director |
|
494 |
|
— |
|
Isabel Prieto Prieto(1) |
|
Director |
|
132 |
|
— |
|
| (1) | Beneficial ownership represents less than 1% of our outstanding shares in the aggregate. |
Compensation of Directors and Senior Management
Members of our Board of Directors and the members of our committees received Ps. 12.1 million in aggregate compensation for the year ended December 31, 2025. We paid an aggregate amount of approximately Ps. 191.0 million in 2025 for the services of our executive officers.
No amount has been set aside by ASUR or its subsidiaries for pension, retirement or similar benefits.
144
Committees
Our bylaws provide for four committees to assist the Board of Directors with the management of our business: an Operating Committee, an Audit and Corporate Practices Committee, an Acquisitions and Contracts Committee, and Nominations and Compensation Committee. Additionally, our Board of Directors has approved the creation of a Sustainability Committee, in accordance with our bylaws.
The Operating Committee, which is composed of five members, is responsible for proposing and approving certain plans and policies relating to our business, investments and administration, including approval of the master development plans of our subsidiary concession holders, our dividend policy and investments of less than U.S.$2.0 million that are not provided for in our annual budget. The Board of Directors appoints all the members of the Operating Committee. Board members elected by the holders of Series BB shares have the right to appoint two of the committee members and to appoint the chairman, who has a deciding vote in the case of a tie. The consent of the Series BB directors is also required to select the members of the Operating Committee that are not members of our board or officers of our company. The current members of the Operating Committee are Francisco Garza Zambrano (President), Fernando Chico Pardo, Rasmus Christiansen and José Antonio Pérez Antón. A secretary has also been appointed who is not a member of the committee.
The Audit and Corporate Practices Committee must be composed of at least three members, all of whom must be independent, and is responsible for supervising the management and conduct of our business, monitoring the activities of our Board of Directors, our officers and the officers of our subsidiaries for compliance with the bylaws and applicable law, as well as coordinating internal auditing activities. With respect to financial reporting and auditing matters, the Audit and Corporate Practices Committee reviews financial data, supervises risk-management activities (such as areas of the company that may be vulnerable to fraud or other acts of corruption, information technology, and environmental and social issues), ensures compliance with the professional code of conduct and has oversight of our internal auditing and controls system, as well as the performance of our external auditors. The Audit and Corporate Practices Committee is also responsible for overseeing our Code of Ethics and monitoring transactions with affiliates, including ITA and its stockholders. In addition to the specific duties and authorities set forth under our bylaws and the Securities Market Law for the Audit and Corporate Practices Committee, the Audit and Corporate Practices Committee also has the authority and duties of the Corporate Practices Committee under the Securities Market Law. Our bylaws provide that the Board of Directors shall determine the number of members of the Audit and Corporate Practices Committee, which is required to comprise solely independent directors. All members of the Audit and Corporate Practices Committee must meet the applicable independence criteria set forth under the Sarbanes-Oxley Act of 2002 and the rules issued thereunder by the U.S. Securities and Exchange Commission. The president of the Audit and Corporate Practices Committee is elected by a vote at the shareholders meeting, as is a secretary, who is not required to be a committee member. The committee also appoints among its members a special delegate who may not be a person appointed by the holders of Series BB shares nor be related to the committee members. The special delegate is charged with ensuring that ITA complies with its obligations under the technical assistance agreement it has with us. The current members of the Audit and Corporate Practices Committee are Francisco Garza Zambrano and Guillermo Ortiz Martínez (Financial Expert of the Audit Committee). A secretary has also been appointed who is not a member of the committee.
The Sustainability Committee was formed on December 1, 2022, and is composed of three members. The Committee has established the following priority issues in connection with the Company’s environmental, social and governance (ESG) program: (i) environmental objective, including actions to monitor, reduce and compensate carbon emissions, protect and restore biodiversity and nature, measures to reduce water consumption and recycle wastewater, measures to increase percentage of recycled waste; (ii) social objectives, including the promotion of sustainable economic development in the communities where we operate, continuous improvement of our health and safety programs, and development of our workforce; and (iii) governance objectives, including implementing succession plans for board members and key executives and creating strategies to resolve over boarding and optimization of transparency with our stockholders. Diana María Chávez Varela, independent board member, serves as President of the Sustainability Committee.
145
The Acquisitions and Contracts Committee, composed of three members, is responsible for ensuring compliance with our procurement policies set forth in our bylaws. Among other things, these policies require that the Acquisitions and Contracts Committee approve (i) any transaction or series of related transactions between us and a third party involving consideration in excess of U.S.$400,000 and to be performed within one year or more; (ii) any contract modifications representing an increase of more than 25% of the originally agreed timeframe or value; (iii) any tendered contracts for which a single bid has been received, or when a contract is assigned directly without involving a tender; and (iv) any contract renewals involving the same supplier. In addition, the policies require that any contract between us, on the one hand, and ITA or any of its related persons, on the other hand, be awarded pursuant to a bidding process involving at least three other bidders. Our bylaws provide that a stockholders’ meeting will determine the number (which must be an odd number) of members of the Acquisitions and Contracts Committee, which is required to be composed primarily of members of the Board of Directors. The members of the Board of Directors elected by the holders of Series BB shares are entitled to appoint one member to the committee. The current members of the Acquisitions and Contracts Committee are Fernando Chico Pardo (President), Rasmus Christiansen and Aurelio Pérez Alonso. A secretary has also been appointed who is not a member of the committee.
The Nominations and Compensation Committee was formed on October 12, 1999. The duties of the committee include the proposal to the general shareholders’ meeting of candidates for election to the Board of Directors and proposal to the Board of Directors of candidates for appointment as executive officers, as well as proposals to the general shareholders’ meeting regarding the removal and compensation of directors and officers. With respect to compensation of directors and officers, the committee determines the level of compensations based on performance assessments and market rates, and approves the performance parameters that will be used as the basis for assessment in the subsequent twelve-month period. Our bylaws provide that a stockholders’ meeting will determine the number (which must be an odd number) of members of the committee. The holders of the Series B and Series BB shares, acting as a class, are each entitled to name one member of the Nominations and Compensation Committee. The remaining members of the committee are to be named by these two initial members. Members of the committee each have a term of one year. At each annual stockholders’ meeting after a public offering of our shares, the Nominations and Compensation Committee is required to present a list of at least seven candidates for election as directors for the vote of the Series B stockholders. At an ordinary stockholders’ meeting held February 28, 2001, our stockholders resolved that the Nominations and Compensation Committee be comprised of three members. The current members of the Nominations and Compensation Committee are Barbara Garza Lagüera Gonda (President), Fernando Chico Pardo and José Antonio Pérez Antón.
146
Employees
The following table sets forth the number of employees in various positions as of the end of 2023, 2024 and 2025.
|
|
As of December 31, |
||||
|
|
2023 |
|
2024 |
|
2025 |
Administrative Employees(1) |
|
|
|
|
|
|
Servicios Aeroportuarios del Sureste, S.A. de C.V. |
|
— |
|
— |
|
— |
México |
|
|
|
|
|
|
Cancún Airport |
|
481 |
|
484 |
|
496 |
Cozumel Airport |
|
27 |
|
28 |
|
28 |
Huatulco Airport |
|
23 |
|
25 |
|
25 |
Mérida Airport |
|
64 |
|
72 |
|
74 |
Minatitlán Airport |
|
18 |
|
19 |
|
19 |
Oaxaca Airport |
|
28 |
|
30 |
|
29 |
Tapachula Airport |
|
25 |
|
24 |
|
26 |
Veracruz Airport |
|
35 |
|
36 |
|
36 |
Villahermosa Airport |
|
34 |
|
34 |
|
35 |
Cancún Airports Services, S.A. |
|
245 |
|
247 |
|
260 |
Total Mexico |
|
980 |
|
999 |
|
1,028 |
Colombia |
|
|
|
|
|
|
Airplan (Corporate Office) |
|
83 |
|
88 |
|
86 |
Carepa Airport |
|
29 |
|
29 |
|
29 |
Corozal Airport |
|
18 |
|
21 |
|
21 |
Medellín Airport (Enrique Olaya Herrera) |
|
46 |
|
52 |
|
48 |
Rionegro Airport (José María Córdova) |
|
136 |
|
144 |
|
144 |
Montería Airport |
|
43 |
|
45 |
|
51 |
Quibdó Airport |
|
37 |
|
37 |
|
45 |
Total Colombia |
|
392 |
|
416 |
|
424 |
San Juan Airport |
|
104 |
|
112 |
|
115 |
Total Puerto Rico |
|
104 |
|
112 |
|
115 |
ASUR Airports LLC (JFK, LAX, ORD) |
|
— |
|
— |
|
42 |
Total Mainland U.S. |
|
— |
|
— |
|
42 |
Total Administrative Employees |
|
1,476 |
|
1,527 |
|
1,609 |
Unionized Employees(2) |
|
|
|
|
|
|
México |
|
|
|
|
|
|
Cancún Airport |
|
169 |
|
169 |
|
171 |
Cozumel Airport |
|
36 |
|
36 |
|
36 |
Huatulco Airport |
|
20 |
|
20 |
|
20 |
Mérida Airport |
|
46 |
|
46 |
|
46 |
Minatitlán Airport |
|
16 |
|
16 |
|
16 |
Oaxaca Airport |
|
23 |
|
27 |
|
27 |
Tapachula Airport |
|
24 |
|
23 |
|
24 |
Veracruz Airport |
|
27 |
|
27 |
|
27 |
Villahermosa Airport |
|
26 |
|
25 |
|
28 |
Total México |
|
387 |
|
389 |
|
395 |
Colombia |
|
|
|
|
|
|
Carepa Airport |
|
— |
|
— |
|
— |
Corozal Airport |
|
— |
|
— |
|
— |
Medellín Airport (Enrique Olaya Herrera) |
|
— |
|
— |
|
— |
Rionegro Airport (José María Córdova) |
|
— |
|
— |
|
— |
Montería Airport |
|
— |
|
— |
|
— |
Quibdó Airport |
|
— |
|
— |
|
— |
Total Colombia |
|
— |
|
— |
|
— |
San Juan Airport |
|
19 |
|
20 |
|
19 |
Total Puerto Rico |
|
19 |
|
20 |
|
19 |
Total Union Employees |
|
406 |
|
409 |
|
414 |
(1) |
On February 2022, we transferred all of the non-unionized administrative employees by each of our airport operating subsidiaries. |
147
As of December 31, 2023, 2024 and 2025, we had 1,882, 1,936 and 2,023 total employees (administrative and unionized), respectively.
As of December 31, 2023, 2024, and 2025, 21.6%, 21.1% and 20.9%, respectively, of our employees were members of labor unions.
During 2021 we initiated the transfer of all employees of RH ASUR, S.A. de C.V. and Servicios Aeroportuarios del Sureste, S.A. de C.V., two subsidiaries wholly-owned by us, that provided administrative and personnel services, so that they become employees of the corresponding Mexico airport where they operate. This transition was completed in February 2022. As of June 10, 2021 and February 2022, respectively, all unionized and non-unionized personnel are hired by each of our respective airport subsidiaries, and RH ASUR, S.A. de C.V. and Servicios Aeroportuarios del Sureste, S.A. de C.V.do not have any employees as of such dates.
All of our Mexican unionized employees are members of local chapters of the Mexican National Union of Airport Workers. As of April 2008, the labor relations with our Mexican employees in our airport operating subsidiaries are governed by one collective labor agreement that is negotiated by the local chapter of the union. Under applicable Mexican labor law, wages are renegotiated every year, while other terms and conditions of employment are renegotiated every two years. The last agreement for the period 2024 to 2026 is in the process of being signed with the union as of February 2026, which prospectively modified the 2025 agreement. We believe we have good relations with our Mexican employees.
Item 7.Major Shareholders and Related Party Transactions
MAJOR SHAREHOLDERS
Capital Stock Structure
The following table sets forth the current ownership of outstanding shares as of April 16, 2026, to the extent of our knowledge.
|
|
|
|
|
|
Percentage of total |
|
||
|
|
Number of Shares |
|
share capital |
|
||||
Identity of stockholder |
|
B Shares |
|
BB Shares |
|
B Shares |
|
BB Shares |
|
CHPAF Holdings, S.A.P.I. de C.V. (1)(2)(3)(4)(5) |
|
65,008,564 |
|
— |
|
21.67 |
% |
— |
|
Inversiones Productivas Kierke S.A .de C.V. |
|
36,989,770 |
|
|
|
12.33 |
% |
— |
|
Grupo ADO, S.A. de C.V.(6) |
|
4,002,750 |
|
— |
|
1.33 |
% |
— |
|
ITA, through Bancomext (1)(2)(3)(4)(6) |
|
— |
|
22,950,000 |
|
— |
|
7.65 |
% |
BlackRock, Inc. |
|
22,966,243 |
|
— |
|
7.66 |
% |
— |
|
Other Public(1) |
|
171,048,916 |
|
— |
|
49.36 |
% |
— |
|
(1) |
Pursuant to the Share Registry Book of ASUR, the shareholders that formally appear registered as such are (a) Indeval, as depositary of 255,000,000 Series B shares, (b) Bancomext, as holder of 22,050,000 Series B shares, and (c) Bancomext, as holder of 22,950,000 Series BB shares. |
(2) |
Our Chairman of the Board of Directors Fernando Chico Pardo owns, directly or indirectly, (a) 50.0% of ITA and (b) 99.99% of CHPAF Holdings, S.A.P.I. de C.V. On December 3, 2018, Servicios de Estrategia Patrimonial, S.A. de C.V. (formerly known as, Agrupación Aeroportuaria Internacional, S.A. de C.V.) and Agrupación Aeroportuaria Internacional III, S.A. de C.V (the successor in interest to Agrupación Aeroportuaria Internacional II, S.A. de C.V) merged into CHPAF Holdings, S.A.P.I. de C.V. |
(3) |
On June 18, 2007, Bancomext, as trustee of the trust created under Trust Agreement dated December 18, 1998 and holder of 45,000,000 Series BB shares, informed ASUR of its decision to convert 22,050,000 Series BB shares into 22,050,000 Series B shares. |
(4) |
On July 25, 2007, ITA, as beneficiary of the trust created under Trust Agreement dated December 18, 1998 and holder of 45,000,000 Series BB shares, instructed Bancomext to release from the trust and physically deliver to Agrupación Aeroportuaria Internacional, S.A. de C.V. (following a name change, now known as Servicios de Estrategia Patrimonial, S.A. de C.V.) 22,050,000 Series B shares. |
(5) |
Based on information contained in public reports, from June 2, 2008 until July 3, 2008, Agrupación Aeroportuaria Internacional II, S.A. de C.V., a company indirectly controlled and owned by Fernando Chico Pardo purchased 2,973,052 Series “B” shares, which represent 0.99% of our outstanding capital stock. |
(6) |
Grupo ADO, S.A. de C.V. indirectly owns 50.0% of ITA through its subsidiary, Inversiones Kierke, which in turn owns, directly or indirectly, 36,989,770 of our Series “B” shares. |
(7) |
As of December 31, 2024, Blackrock, Inc. had acquired 22,966,243 Series B shares from the open market, as disclosed in the Schedule 13-G filed with the SEC on March 7, 2025. |
148
ITA Trust
The rules governing the sale of our Series BB shares to ITA required that ITA place all of its Series BB shares in trust in order to guarantee ITA’s performance of its obligations under the technical assistance agreement and ITA’s commitment to maintain its interest in ASUR for a specified period. Accordingly, ITA has placed its shares in trust with Bancomext. This trust, as amended in connection with the conversion of 22,950,000 Series BB shares described above, provides that ITA may instruct Bancomext with respect to the voting of the shares held in trust that currently represent 7.65% of our capital stock, regarding all matters other than capital reductions, payment of dividends, amortization of shares and similar distributions to our shareholders, which are voted by the trustee in accordance with the vote of the majority of the Series B shares.
The term of the trust will be extended for an additional 15 years if, at the end of the initial 15-year term, ITA holds shares representing more than 10.0% of our capital stock. ITA may terminate the trust before the second 15-year term begins if: (i) ITA holds less than 10.0% of our capital stock at the end of the initial term; and (ii) the technical services agreement has been terminated. ITA is required to deposit in the trust any additional shares of our capital stock that it acquires.
RELATED PARTY TRANSACTIONS
General
We have engaged in a variety of transactions with our affiliates, including with certain of our shareholders. The transactions with related parties disclosed in this section were carried out under market conditions.
As of December 31, 2023, 2024 and 2025, the accounts pending payment with related parties are as follows:
|
|
At December 31, |
||||
|
|
2023 |
|
2024 |
|
2025 |
|
|
(millions of Mexican pesos) |
||||
Accounts Payable: |
|
|
|
|
|
|
Inversiones y Técnicas Aeroportuarias, S.A.P.I. de C.V.(1) |
|
178.3 |
|
101.3 |
|
98.5 |
Total Accounts Payable |
|
178.3 |
|
101.3 |
|
98.5 |
(1) |
Shareholder |
During the years ending December 31, 2023, 2024 and 2025, the following transactions with related parties were carried out:
|
|
Year Ended December 31, |
|||||||
|
|
2023 |
|
2024 |
|
2025 |
|||
|
|
|
(millions of Mexican pesos) |
||||||
Commercial revenues |
|
Ps. |
28.7 |
|
Ps. |
28.9 |
|
Ps. |
29.3 |
Technical assistance |
|
|
(715.5) |
|
|
(400.8) |
|
|
(400.9) |
Leases |
|
|
(5.8) |
|
|
(6.2) |
|
|
(6.7) |
Arrangements with ITA
The rules for the sale of the Series BB shares required ITA, ASUR and the Ministry of Infrastructure, Communications and Transportation to enter into a participation agreement, which established the framework for the option agreement, the Technical Assistance Agreement and the Banco Nacional de Comercio Exterior, S.N.C., or Bancomext, Trust Agreement. The participation agreement expired on December 17, 2013.
149
Pursuant to the Technical Assistance Agreement, ITA and its stockholders agreed to provide management and consulting services and transfer industry “know-how” related to the operation of airports to us. Although Copenhagen Airports ceased to be a shareholder in October 2010, and after the consummation of the sale of a company that owns 49.0% of ITA to Grupo ADO, the Technical Assistance Agreement continues in force and will remain in force. The Technical Assistance Agreement entitles ITA to propose to our board a candidate to be our Chief Executive Officer, to appoint half our other executive officers and two members of our Board of Directors. The agreement also grants us a perpetual and exclusive license in Mexico to use all technical assistance and know-how transferred to us by ITA or its stockholders during the term of the agreement. The agreement had an initial 15-year term which expired in 2013, and was automatically renewed for a successive five-year term on the same conditions on December 18, 2013. We are required under this agreement to pay ITA an annual fee equal to the greater of U.S.$2.0 million, adjusted for U.S. inflation, or 5.0% of our annual consolidated earnings before comprehensive financing cost, income taxes and depreciation and amortization (determined in accordance with financial reporting standards applicable in Mexico and calculated prior to deducting the technical assistance fee under this agreement). Effective as of January 1, 2024, the applicable rate for the technical assistance agreement was reduced from 5.0% to 2.5%. The fixed dollar amount decreases during the initial five years of the agreement in order to create an incentive for ITA to increase our earnings before comprehensive financing cost, income taxes and depreciation and amortization. ITA is also entitled to reimbursement for the out-of-pocket expenses it incurs in its provision of services under the agreement. The agreement allows ITA, its stockholders and their affiliates to render additional services to us only if our Acquisitions and Contracts Committee determines that these related persons have submitted the most favorable bid in a bidding process. This process is described in “Item 6. Directors, Senior Management and Employees—Committees.” In 2023, 2024 and 2025, we recognized expenses of U.S.$42.3 million, U.S.$19.2 million and U.S.$22.3 million, respectively, pursuant to the technical assistance agreement. We did not owe ITA additional expenses in 2023, 2024, and 2025.
Arrangements with Entities Controlled by Fernando Chico Pardo
We rent our executive offices in Mexico City from Gafapa, S.A. de C.V., another entity controlled by Fernando Chico Pardo.
Compensation to Directors and Officers
In 2023, we provided Ps. 171.6 million in compensation to executive officers and Ps. 10.3million in compensation to the Board of Directors and the committees of the Board of Directors. In 2024, we provided Ps. 204.9 million in compensation to key management personnel and Ps. 8.7 million in compensation to the Board of Directors and the committees of the Board of Directors. In 2025, we provided Ps. 191.0 in compensation to key management personnel and Ps. 12.1 in compensation to the Board of Directors and the committees of the Board of Directors.
150
Item 8.Financial Information
See “Item 18. Financial Statements” beginning on page F-1.
Legal Proceedings
We are involved in legal proceedings from time to time that are incidental to the normal conduct of our business. Our transactions are subject to Mexican federal and state law, as well as Puerto Rico and Colombian law due to our subsidiaries outside of Mexico.
At present, a number of labor-law claims have been filed against us mainly relating to involuntary terminations. Should those claims result in a negative ruling, they would not have significant effects. We are currently pursuing judicial remedies and no ruling has been handed down at the date of this report. As of December 31, 2025, we have not established a provision for this item.
In addition, Aeropuerto de Cancún is appealing a decision from the Quintana Roo’s Tax Authority concerning a tax issue relating to the amortization of its concession for tax purposes. See “Item 5. Operating and Financial Review and Prospects—Recent Developments—We participated in a tax amnesty program implemented by the Mexican federal government.”
On August 21, 2019, the Board of Commissioners of COFECE in Mexico notified our Aeropuerto de Cancún of a decision issued on July 25, 2019, which provides for: (i) administrative liability for monopolistic practices (as described in Article 56, Section V of the LFCE (refusal of access)) and (ii) a fine of Ps. 73 million. We appealed COFECE’s decision in November 2023. In November 2023, a Federal specialized Judge granted to Aeropuerto de Cancún constitutional protection against COFECE’s decision and ordered the Board of Commissioners to review and justify whether and as of when the company actually incurred in the relative monopolist practice of refusal to deal. On November 21, 2025, the Court upheld the appealed ruling and granted the Cancún Airport an injunction, ordering the full National Antitrust Commission (CNA), which replaced COFECE, to issue a new resolution. As of December 31, 2025, the CNA was in the process of issuing this new resolution. The risk, should the lawsuit be resolved unfavorably to the Company, amounts to Ps. 73 million. This amount is not recorded because the risk of requiring cash outflows to settle the obligation is remote.
We do not believe that liabilities related to any of these claims and proceedings against us are reasonably likely to have, individually or in the aggregate, a material adverse effect on our consolidated financial condition, results of operations, or cash flows.
151
DIVIDENDS
The declaration, amount and payment of dividends are determined by a majority vote of the stockholders present at a stockholders’ meeting and generally, but not necessarily, on the recommendation of the Board of Directors. So long as the Series BB shares represent at least 7.65% of our capital stock, the declaration and payment of dividends will require the approval of the holders of a majority of the Series BB shares. Figures included in this subsection are stated in Mexican pesos.
Mexican law requires that at least 5.0% of a company’s net income (on a non-consolidated basis) each year (after profit sharing and other deductions required by Mexican law) be allocated to a legal reserve fund until such fund reaches an amount equal to at least 20.0% of its capital stock.
Mexican companies may pay dividends only out of earnings (including retained earnings after all losses have been absorbed or paid up) and only after such allocation to the legal reserve fund. The reserve fund is required to be funded on a stand-alone basis for each company, rather than on a consolidated basis. The level of earnings available for the payment of dividends is determined under IFRS. The legal reserve of our holding company, Grupo Aeroportuario del Sureste, S.A.B. de C.V., as of December 31, 2025, is Ps. 2,542.2 million (which includes the required allocation corresponding to year 2024 net income). Our subsidiaries are required to allocate earnings to their respective legal reserve funds prior to paying dividends to Grupo Aeroportuario del Sureste, S.A.B. de C.V.
Currently, dividends paid to non-resident holders with respect to our Series B shares and ADSs are subject to Mexican withholding tax at the rate of 10.0% on the gross amount of the dividend distributed. Dividends that are paid from a company’s distributable earnings that have not been subject to corporate income tax will be subject to a corporate-level dividend tax (payable by us) calculated on a gross-up basis by applying a factor of 1.4286. Corporate tax rates of 30.0% in 2023, 2024 and 2025 are applied to the result. This corporate-level dividend income tax on the distribution of earnings may be applied as a credit against Mexican corporate income tax corresponding to the fiscal year in which the dividend was paid or against the Mexican corporate income tax for the 2025 fiscal year or the Mexican corporate income tax of the two fiscal years following the date in which the dividend was paid. In the case of dividends paid in 2025, the credit would be applicable against the Mexican corporate income tax for the fiscal year ended 2025 or the Mexican corporate income tax corresponding to the following two fiscal years. Dividends paid from a company’s distributable earnings that have been subject to corporate income tax are not subject to this corporate-level dividend income tax.
As of December 31, 2025, we had no distributable earnings. As of December 31, 2024, we had distributable earnings in an amount of Ps. 23,191.2 million which, if paid from our CUFIN, would not be subject to additional corporate income tax, would not be subject to tax withholding if paid in respect of distributable earnings generated prior to 2014 and could be subject to a 10% tax withholding if paid in respect of distributable earnings generated as of 2014. Our CUFIN amounted to Ps. 17,933.8 million, and Ps. 30,345.0 million, as of December 31, 2024, and 2025, respectively.
At the general stockholders’ meeting held on April 26, 2023, our stockholders approved to set aside 5% of the accumulated net profits for the year ended December 31, 2022 to increase our legal reserve, in accordance with Article 20 of the Mexican General Corporations Law (Ley General de Sociedades Mercantiles). In that same meeting, our stockholders approved the payment of an ordinary cash dividend from accumulated retained earnings in the amount of Ps. 9.93 per share, payable in May 2023, as well as an extraordinary cash dividend from accumulated retained earnings in the amount of Ps. 10.00 per share, payable in November 2023, each to be paid in a single installment to each of the outstanding, common, Series “B” and “BB”. Our stockholders also approved to set aside all remaining accumulated net profits for the year ended December 31, 2022 for the repurchase of shares by the Company during the fiscal year 2023, pursuant to Article 56 of the Securities Market Law.
152
At the general stockholders’ meeting held on April 24, 2024, our stockholders approved to set aside 5% of the accumulated net profits for the year ended December 31, 2023 to increase our legal reserve, in accordance with Article 20 of the Mexican General Corporations Law (Ley General de Sociedades Mercantiles). In that same meeting, our stockholders approved the payment of an ordinary cash dividend from accumulated retained earnings in the amount of Ps. 10.92 per share, payable in May 2024, as well as an extraordinary cash dividend from accumulated retained earnings in the amount of Ps. 10.00 per share, payable in June 2024, each to be paid in a single installment to each of the outstanding, common, Series “B” and “BB”. Our stockholders also approved to set aside all remaining accumulated net profits for the year ended December 31, 2023 for the repurchase of shares by the Company during the fiscal year 2024, pursuant to Article 56 of the Securities Market Law.
At the general stockholders’ meeting held on April 23, 2025, our stockholders approved to set aside Ps. 6.00 of the accumulated net profits for the year ended December 31, 2024 to increase our legal reserve, in accordance with Article 20 of the Mexican General Corporations Law (Ley General de Sociedades Mercantiles). In that same meeting, our stockholders approved the payment of (i) an ordinary cash dividend from accumulated retained earnings, and the share repurchase reserve in the amount of Ps. 50.0 per share, payable in May 2025, (ii) an extraordinary cash dividend from the share repurchase reserve in the amount of Ps. 15.00 per share, payable in September 2025, and (iii) an extraordinary cash dividend from the share repurchase reserve in the amount of Ps. 15.00 per share, payable in November 2025 in a single installment to each of the outstanding, common, Series “B” and “BB”. Our stockholders also approved to set aside all remaining accumulated net profits for the year ended December 31, 2024 for the repurchase of shares by the Company during the fiscal year 2025, pursuant to Article 56 of the Securities Market Law.
In the absence of attractive investment opportunities, we intend to continue declaring yearly dividends out of our annual net retained earnings. We do not currently intend to implement a stock repurchase program.
We will declare any future dividends in Mexican pesos. In the case of Series B shares represented by ADSs, cash dividends are paid to the depositary and, subject to the terms of the Deposit Agreement, converted into and paid in U.S. dollars at the prevailing exchange rate, net of conversion expenses of the depositary. Fluctuations in exchange rates affect the amount of dividends that ADS holders receive. For a more detailed discussion, see “Item 10. Additional Information.”
Item 9.The Offer and Listing
TRADING MARKETS
Our publicly traded share capital consists of our Series B common shares without par value, which are publicly traded in Mexico on the Bolsa Mexicana de Valores, S.A.B. de C.V. (“Mexican Stock Exchange”) under the ticker symbol “ASUR B.” The Bolsa Institucional de Valores, or the Institutional Stock Exchange, launched operations on July 25, 2018. The Institutional Stock Exchange competes with the Mexican Stock Exchange for trades, and all shares traded on the Mexican Stock Exchange, including our Series B common shares, are now trading on the Institutional Stock Exchange, as well. Both stock exchanges operate a system of automatic suspension of trading in shares of a particular issuer as a means of controlling excessive price volatility, but under current regulations this system does not apply to securities such as the Series B common shares represented by common ADSs that are directly or indirectly quoted on a stock exchange outside of Mexico. Most securities traded on the Mexican Stock Exchange and on the Institutional Stock Exchange, including our Series B common shares, are on deposit with Indeval, a privately owned securities depositary that acts as a clearinghouse, depositary, custodian and registrar for transactions on the Mexican Stock Exchange and on the Institutional Stock Exchange.
Our common ADSs, each representing 10 Series B common shares of our capital stock, are traded on the NYSE under the ticker symbol “ASR.” The Bank of New York Mellon serves as the depositary for our common ADSs. On April 13, 2026, there were 8,103,270 ADSs outstanding, representing 27.01% of our total share capital.
Item 10. |
Additional Information |
Bylaws
This section summarizes certain provisions of Mexican law and our estatutos sociales (bylaws).
153
At our Extraordinary Stockholders’ Meeting held on April 27, 2007, our shareholders approved certain amendments to conform our bylaws to the provisions of the Mexican Securities Market Law and the Mexican Business Associations Law (Ley General de Sociedades Mercantiles), as well as to clarify and adjust certain provisions thereof.
Purposes
The purposes of our company include the following:
| ● | to acquire shares, ownership or other interests in companies engaged in the management, operation, including providing airport, complementary and commercial services, construction and/or use of civil aerodromes and in accordance with the Mexican Airport Law and its regulations, as well as to hold capital stock in companies that provide any other type of services and to vote the shares of any such companies; to sell, transfer or dispose of any such shares or ownership interests or other securities allowed by law; |
| ● | to receive and to provide the services as required to carry out our corporate purposes, including, without limitation, technical consulting services in the industrial, administrative, accounting, marketing or finance fields, in connection with the management, operation, construction and/or utilization of airports; |
| ● | to request and obtain concessions and permits for the management, operation, construction and/or utilization of airports, as well as for providing any other services necessary for the use of such airports and for carrying out any activity which supports and is related with such purpose; |
| ● | to request and obtain, under any title, either by itself or through its subsidiaries, concessions and permits for management, operation, construction, and/or use of airports, as well as for providing any other necessary services for the use of such airports and for carrying out any related activity that supports and is related to the main purpose; |
| ● | to obtain, acquire, use, license or dispose of all types of patents, certificates of invention, registered trademarks, trade names, copyright or rights with regard thereto, whether in Mexico or abroad; |
| ● | to obtain all types of loans or credits, with or without specific guarantee, and to grant loans, in each case, in the ordinary course of business of the Company; |
| ● | to grant any kind of guaranty and security on issued negotiable instruments or obligations assumed by the Company or by companies in which the Company may hold ownership interests, in each case, in the ordinary course of business of the Company; |
| ● | to issue and subscribe all kinds of negotiable instruments, accept and endorse them, including obligations with or without security interest; |
| ● | to issue any unsubscribed shares of our capital stock to be kept in our treasury in order to be delivered upon subscription thereof, as well as to execute option agreements that grant to third parties the right to subscribe and pay for our shares; |
| ● | to hold, possess, sell, transfer, dispose of or lease any assets, or real or personal property that may be necessary or convenient to carry out our corporate purposes; and |
| ● | generally, to carry out and perform all actions, agreements and related, incidental or ancillary transactions in furtherance of the above-mentioned purposes. |
Directors
Our bylaws provide that our Board of Directors will have such odd number of members as determined by the shareholders’ meeting, which number shall not be less than seven and shall be subject to the maximum limit set forth by the Mexican Securities Market Law.
154
Each person (or group of persons acting together) holding 10.0% of our capital stock in the form of Series B shares is entitled to elect one director. The shareholders of Series BB shares will have the right to appoint two members and their respective alternates. The remaining positions on the Board of Directors will be filled based on the vote of all holders of Series B shares, including those Series B holders that were entitled to elect a director by virtue of their owning 10.0% of our capital stock. The candidates to be considered for election as directors by the Series B stockholders will be proposed to the stockholders’ meeting by the Nominations and Compensation Committee. All directors are elected based on a simple majority of the votes cast at the relevant stockholders’ meeting. Our bylaws do not currently require mandatory retirement of directors after they reach a certain age. The compensation of our directors is proposed by the Nominations and Compensation Committee to all of our stockholders at stockholders’ meetings for their approval.
The number of directors to be elected by the holders of Series B shares is to be determined based on the number of directors elected by persons holding Series B shares representing 10% (individually or as a group) of our capital stock and by the holders of the Series BB shares. If less than seven directors are elected by 10.0% stockholders exercising their right to elect one director and by the holders of the Series BB shares, the total number of directors to be elected by the Series B holders will be such number as is required to reach seven. If seven directors are elected by 10.0% stockholders exercising their right to elect one director and by the holders of the Series BB shares, the Series B stockholders will be entitled to elect two directors in addition to those elected by 10.0% stockholders. If more than seven directors are elected by 10.0% stockholders exercising their right to elect one director and the holders of the Series BB shares, the Series B stockholders will be entitled to elect one or two directors in addition to the directors elected by 10.0% stockholders (individually or as a group) (depending on which number will result in an odd number of directors).
Authority of the Board of Directors
The powers of the board include, without limitation, the power:
| ● | to participate in our strategic planning decisions; |
| ● | to authorize changes in our policies regarding financial structure, products, market development and organization; |
| ● | to oversee compliance with general corporate practices, our bylaws and the minority rights set forth thereunder; |
| ● | to call for stockholders’ meetings and act on their resolutions; |
| ● | to create special committees and grant them the powers and authority it sees fit, provided that said committees will not be vested with the authorities which by law or under our bylaws are expressly reserved for the stockholders or the Board of Directors; |
| ● | to determine how to vote the shares held by us in our subsidiaries; |
| ● | to appoint our chief executive officer from among the candidates proposed by the members of the Board of Directors appointed by the Series BB shareholders, and to appoint those officers other than those designated by the Series BB directors or the Operating Committee; and |
| ● | to approve, upon proposal by the Operating Committee: (i) our annual budget and that of our subsidiaries; and (ii) the master development plan and any amendments thereto for each of the airports to be submitted to the Ministry of Infrastructure, Communications and Transportation. |
Meetings of the Board of Directors will be validly convened and held if a majority of its members are present. Resolutions at said meetings will be valid if approved by a majority of the members of the Board of Directors, unless our bylaws require a higher number. The chairman has a tie-breaking vote.
155
Resolutions at board meetings with respect to any of the issues listed below will be valid only if approved by the members of the Board of Directors elected by the holders of the Series BB shares:
| ● | approval of our financial statements and those of our subsidiaries and their submission to the stockholders’ meeting; |
| ● | approval of the five-year master development plans for each of the airports operated by our subsidiaries; |
| ● | annual approval of the business plan and the investment budget; |
| ● | approval of capital investments not considered in the approved annual budget for each fiscal year; |
| ● | approval of any sale of assets having, individually or jointly, a value exceeding the lower of (i) U.S.$5.0 million, or (ii) 5.0% of the consolidated assets of the Company, but which does not exceed 20.0% of the consolidated assets of the Company; |
| ● | incurrence of any indebtedness, whether by means of direct loans or financial leases, in an amount greater than the lower of (i) U.S.$5.0 million, or (ii) 5.0% of the consolidated assets of the Company, but which does not exceed 20.0% of the consolidated assets of the Company; |
| ● | determine the manner in which the Company shall vote its shares at the shareholders meeting of its subsidiaries, taking into consideration the proposal of the Operating Committee; |
| ● | proposal to increase our capital or that of our subsidiaries; |
| ● | approval of any sale of shares of the capital stock of our subsidiaries; |
| ● | approval of any purchase or sale of shares or interests in any company, except for: (a) the acquisition of shares and/or securities issued by investment companies, and (b) the acquisition of securities through investment companies (mutual funds); |
| ● | approval or amendment of our management structure; |
| ● | creation of new committees, delegation of powers to the same and changes to the powers of any existing committee; |
| ● | approval of our dividend policy and the application of the Company’s profits and its submission to the stockholders’ meeting; and |
| ● | appointment of the chief executive officer from among the candidates proposed by the members of the Board of Directors appointed by the Series BB shareholders. |
Powers of Series BB Directors
The Series BB directors are entitled to:
| ● | present to the Board of Directors the name or names of candidates for appointment as chief executive officer, |
| ● | remove the chief executive officer, |
| ● | appoint and remove half of our executive officers, |
| ● | appoint two members of the Operating Committee and their substitutes, and at least one member of the Acquisitions and Contracts Committee and his or her substitute, and |
| ● | determine the composition of the Operating Committee. |
156
Our Capital Stock
The following table sets forth our authorized capital stock and our issued and outstanding capital stock as of April 16, 2026:
Capital Stock
|
|
Authorized |
|
Issued and outstanding |
|
Fixed capital stock: |
|
|
|
|
|
Series B shares |
|
277,050,000 |
* |
277,050,000 |
* |
Series BB shares |
|
22,950,000 |
* |
22,950,000 |
* |
Variable capital stock: |
|
|
|
|
|
Series B shares |
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Series BB shares |
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*After giving effect to the conversion by ITA of 22,050,000 Series BB shares into 22,050,000 Series B shares in June 2007.
All ordinary shares confer equal rights and obligations to holders within each series. The Series BB shares have the voting and other rights described below.
Our bylaws provide that our shares have the following characteristics:
| ● | Series B. Series B shares currently represent 92.35% of our capital. Series B shares may be held by any Mexican or foreign natural person, company or entity. |
| ● | Series BB. Series BB shares currently represent 7.65% of our capital. Series BB shares may be held by any Mexican or foreign natural person, company or entity. |
Under the Mexican Airport Law and the Mexican Foreign Investments Law, foreign persons may not directly or indirectly own more than 49.0% of the capital stock of a holder of an airport concession unless an authorization from the Mexican Commission of Foreign Investments is obtained. We obtained this authorization in 1999 and as a consequence these restrictions do not apply to our Series B or Series BB shares.
Voting Rights and Stockholders’ Meetings
Each Series B share and Series BB share entitles the holder to one vote at any general meeting of our stockholders. Holders of Series BB shares are entitled to elect two members of our Board of Directors and holders of Series B shares are entitled to name the remaining members of the Board of Directors. Our bylaws provide that our Board of Directors will have such odd number of members as determined by the stockholders’ meeting, which number shall not be less than seven and shall be subject to the maximum limit set forth by the Mexican Ley del Mercado de Valores (Mexican Securities Market Law). Currently, our Board of Directors consists of eleven members.
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Under Mexican law and our bylaws, we may hold three types of stockholders’ meetings: ordinary, extraordinary and special. Ordinary stockholders’ meetings are those called to discuss any issue not reserved for extraordinary stockholders’ meeting. An annual ordinary stockholders’ meeting must be convened and held within the first four months following the end of each fiscal year to discuss, among other things, the report prepared by the Board on our financial statements, the appointment of members of the Board and the determination of compensation for members of the Board. In addition, the ordinary stockholders’ meeting shall meet for the approval of any transaction representing the equivalent of 20.0% or more of the consolidated assets of the Company.
Extraordinary stockholders’ meetings are those called to consider any of the following matters:
| ● | extension of a company’s duration or voluntary dissolution, |
| ● | an increase or decrease in a company’s minimum fixed capital, |
| ● | change in corporate purpose or nationality, |
| ● | any transformation, merger or spin-off involving the company, |
| ● | any stock redemption or issuance of preferred stock or bonds, |
| ● | the cancellation of the listing of our shares with the National Registry of Securities or on any stock exchange, |
| ● | amendments to a company’s bylaws, and |
| ● | any other matters for which applicable Mexican law or the bylaws specifically require an extraordinary meeting. |
Special stockholders’ meetings are those called and held by stockholders of the same series or class to consider any matter particularly affecting the relevant series or class of shares.
Stockholders’ meetings are required to be held in our corporate domicile, which is Mexico City. Calls for stockholders’ meetings must be made by the Chairman, the Secretary or any two members of the Board of Directors. Any stockholder or group of stockholders representing at least 10.0% of our capital stock has the right to request that the Board of Directors call a stockholders’ meeting to discuss the matters indicated in the relevant request. If the Board of Directors fails to call a meeting within 15 calendar days following receipt of the request, the stockholder or group of stockholders representing at least 10.0% of our capital stock may request that the call be made by a competent court.
Calls for stockholders’ meetings must be published in the Mexican Official Gazette or in one newspaper of general circulation in Mexico at least 15 calendar days prior to the date of the meeting. Each call must set forth the place, date and time of the meeting and the matters to be addressed. Calls must be signed by whomever makes them, provided that calls made by the Board of Directors must be signed by the Chairman, the Secretary or a special delegate appointed by the Board of Directors for that purpose. Stockholders’ meetings will be validly held and convened without the need of a prior call or publication whenever all the shares representing our capital are duly represented.
To be admitted to any stockholders’ meeting, stockholders must: (i) be registered in our share registry; and (ii) at least one business day prior to the commencement of the meeting submit (a) an admission ticket issued by us for that purpose, and (b) a certificate of deposit of the relevant stock certificates issued by the Secretary or by a securities deposit institution, a Mexican or foreign bank or securities dealer in accordance with the Mexican Securities Market Law. The share registry will be closed three days prior to the date of the meeting. Stockholders may be represented at any stockholders’ meeting by one or more attorneys-in-fact who may not be directors of ASUR. Representation at stockholders’ meetings may be substantiated pursuant to general or special powers of attorney or by a proxy executed before two witnesses.
Promptly following the publication of any call for a stockholders’ meeting, we will provide copies of the publication to the depositary for distribution to the holders of ADSs. Holders of ADSs are entitled to instruct the depositary as to the exercise of voting rights pertaining to the Series B shares.
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Quorums
Ordinary meetings are regarded as legally convened pursuant to a first call when at least 50.0% of the shares representing our capital are present or duly represented. Resolutions at ordinary meetings of stockholders are valid when approved by a majority of the shares present at the meeting. Any number of shares represented at an ordinary meeting of stockholders convened pursuant to a second or subsequent call constitutes a quorum. Resolutions at ordinary meetings of stockholders convened in this manner are valid when approved by a majority of the shares present at the meeting.
Extraordinary stockholders’ meetings are regarded as legally convened pursuant to a first call when at least 75.0% of the shares representing our capital are present or duly represented. Resolutions at an extraordinary meeting of stockholders pursuant to a first call are valid if taken by the favorable vote of shares representing at least 50.0% of our capital. Extraordinary stockholders’ meetings are regarded as legally convened pursuant to a second or subsequent call when at least 50.0% of the shares representing our capital are present or duly represented. Resolutions at an extraordinary meeting of stockholders pursuant to a second or subsequent call are valid if taken by the favorable vote of shares representing at least 50.0% of our capital.
Notwithstanding the foregoing, resolutions at extraordinary meetings of stockholders called to discuss any of the issues listed below are valid only if approved by a vote of shares representing at least 75.0% of our capital:
| ● | any amendment to our bylaws which: (i) changes or eliminates the authorities of our committees or (ii) changes or eliminates the rights of minority stockholders; |
| ● | any actions resulting in the cancellation of the concessions granted to us or our subsidiaries by the Mexican government or any assignment of rights arising therefrom; |
| ● | a merger by us with an entity the business of which is not related to the business of us or our subsidiaries; and |
| ● | a spin-off, dissolution or liquidation of ASUR. |
Our bylaws also establish the following voting requirements:
| ● | the amendment of the restrictions on ownership of shares of our capital stock requires the vote of holders of 85.0% of our capital stock; |
| ● | a delisting of our shares requires the vote of holders of 95.0% of our capital stock; and |
| ● | the amendment of the provisions in our bylaws requiring that a stockholder seeking to obtain control carry out a tender offer requires the vote of holders of 85.0% of our capital stock. |
Right of Withdrawal
Any stockholder having voted against a resolution validly adopted at a meeting of our stockholders with respect to (i) a change in our corporate purpose or nationality, (ii) a change of corporate form, (iii) a merger involving us in which we are not the surviving entity or the dilution of its capital stock by more than 10.0%, or (iv) a spin-off, may request redemption of its shares, provided that the relevant request is filed with us within 15 days following the holding of the relevant stockholders’ meeting. The redemption of the stockholders’ shares will be effected at the lower of (a) 95.0% of the average trading price determined on the closing prices of our shares over the last thirty days on which trading in our shares took place prior to the date on which the relevant resolution becomes effective, during a period not longer than six months (provided that in the event the number of days on which shares have been traded in the six month period is less than thirty, all days on which the shares were traded shall be taken into consideration in such determination), or (b) the book value of the shares in accordance with our most recent audited financial statements approved by our stockholders’ meeting. Pursuant to the Mexican Securities Market Law and our bylaws, our stockholders have waived the right to redeem their variable capital contributions as provided in the Mexican Ley General de Sociedades Mercantiles (General Law of Business Corporations).
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Special Voting Rights of BB Shares
Our Series BB shares are held by ITA, our strategic partner. In addition to the right to elect two members of our Board of Directors, Series BB shares are entitled to certain special voting rights. For example, pursuant to our bylaws, ITA is entitled to present the Board of Directors with the name or names of the candidates for appointment as chief executive officer, to remove our chief executive officer and to appoint and remove one half of the executive officers, and to elect two members of our Board of Directors. Our bylaws also provide ITA veto rights with respect to certain corporate actions (including some requiring approval of our stockholders) so long as its Series BB shares represent at least 7.65% of our capital stock. For additional information, see “Additional Information—Voting Rights and Stockholders’ Meetings” in our most recent annual report on Form 20-F incorporated herein by reference.
Dividends and Distributions
Each Series B and Series BB share entitles its holder to equal rights with respect to dividends and distributions. At our annual ordinary general stockholders’ meeting, the Board of Directors submits to the stockholders for their approval our financial statements for the preceding fiscal year. In accordance with the requirements under Mexican law, 5.0% of our net income (after statutory employee profit sharing and other deductions required by Mexican law) must be allocated to a legal reserve fund until the legal reserve fund reaches an amount equal to at least 20.0% of our capital stock (without adjustment for inflation). Additional amounts may be allocated to other reserve funds as the stockholders may from time to time determine, including a reserve to repurchase shares. The remaining balance, if any, of net earnings may be distributed as dividends on both Series B shares and Series BB shares. A full discussion of our dividend policy may be found in “Item 8. Financial Information—Dividends.”
Registration and Transfer
Our shares are registered with the Registro Nacional de Valores (Mexican Securities Registry), as required under the Mexican Ley del Mercado de Valores (Securities Market Law) and regulations issued by the Mexican Comisión Nacional Bancaria y de Valores (Banking and Securities Commission, or CNBV). In the event that the registration of our shares with the Mexican Securities Registry is cancelled, we will be required to make a public offer to purchase all outstanding shares prior to such cancellation. Unless the CNBV authorizes otherwise, the public offer price shall be the higher of the weighted average trading price (based on volume) for our shares for the most recent thirty days on which the price of the shares has been quoted during the six months prior to the commencement of the public offer; provided that in the event the number of days on which shares have been quoted during such six-month period is less than thirty, the days on which the shares were quoted shall be taken into consideration; or if no shares traded during such period, the book value (valor contable) of the shares as calculated in accordance with the most recent quarterly report submitted to the CNBV, the Mexican Stock Exchange and the Institutional Stock Exchange. Notwithstanding the foregoing, we may be exempted from making the public offer if (i) at least 95.0% of stockholders express their consent, (ii) the aggregate amount of the public offer is lower than 300,000 investment units (unidades de inversión or “UDIs”), and (iii) sufficient resources are transferred to a trust with a minimum term of six months specifically created for purposes of purchasing, at the same price of the offer, the shares of the stockholders that do not tender their shares. Any amendments to the foregoing provisions included in our bylaws require the prior approval of the CNBV and approval by a resolution of an extraordinary stockholders’ meeting adopted by shares representing at least 95.0% of our outstanding capital stock.
Any offering that is undertaken in Mexico by us or any selling stockholder must either (i) comply with the public offering requirements set forth in the Mexican Securities Market Law and applicable rules and regulations issued by the CNBV or (ii) be carried out as a private placement pursuant to Article 8 of the Mexican Securities Market Law.
Transfer and Conversion of Series BB Shares
Series BB shares may only be transferred after conversion into Series B shares, and are subject to the following rules:
| ● | Except with the prior authorization by the Mexican Ministry of Infrastructure, Communications and Transportation, ITA was required to retain its interest in the Series BB shares through December 18, 2008. |
| ● | From December 18, 2008 to December 17, 2013, ITA could sell in any year up to 20.0% of its interest in the Series BB shares. |
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| ● | After December 18, 2013, ITA may sell any percentage of its interest in the Series BB shares. |
| ● | If ITA owns Series BB shares that represent less than 7.65% of our capital stock after December 18, 2013, those remaining Series BB shares must be converted into freely transferable Series B shares. |
| ● | If ITA owns Series BB shares representing at least 7.65% of our capital stock after December 18, 2013, those Series BB shares may be converted into Series B shares, provided the holders of at least 51.0% of Series B shares (other than shares held by ITA and any of its “related persons”) approve such conversion and vote against renewal of the technical assistance agreement. |
Stockholder Ownership Restrictions and Antitakeover Protection
Ownership Restrictions
Holders of our shares are subject to the following restrictions:
| ● | subject to the tender offer procedures described below, holders of Series B shares, either individually or together with their related persons, will have no ownership limitation whatsoever with regard to the shares representing such series; |
| ● | Series BB shares may represent no more than 15.0% of our outstanding capital stock; and |
| ● | subject to the tender offer procedures described below, holders of Series BB shares, either individually or together with their related persons, may also own Series B shares without limitation. |
Any amendment to the above provisions requires the vote of shares representing 85.0% of our capital stock.
| ● | no more than 5.0% of our outstanding capital stock may be owned by air carriers; and |
| ● | foreign governments acting in a sovereign capacity may not directly or indirectly own any portion of our capital stock. |
Air carriers and their subsidiaries and affiliates are not permitted, directly or indirectly, to “control” ASUR or any of our subsidiary concession holders.
Change of Control and Tender Offer Procedures
Under our bylaws and applicable Mexican law, in the event the company lists its shares on the stock exchange market, and according to the applicable law, a voluntary or tender offer must take place:
| 1. | Any person or group that intends to acquire, directly or indirectly, ownership of 30.0% or more of our ordinary shares of the company through one or more transactions must make the acquisition through a public offer in accordance with applicable law and the following provisions of our bylaws: |
| (a) | The offer must include both of our series of shares; |
| (b) | The consideration offered per share must be the same, regardless of the class or type of share. |
| (c) | If the offeror intends to obtain control of the company, the offer must be for 100.0% of our capital stock, and if the offer does not imply obtaining control, then the offer must be for at least 10.0% of our capital stock. |
| 2. | The offer must indicate the maximum number of shares it covers and, if applicable, the minimum number of shares on which the offer is conditioned. |
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| 3. | The offer may not provide any consideration that implies a bonus or higher price to the amount of the offer in favor of any person or group of persons related to the offeree. |
The limitation referred to in item 3 above, shall not include the payment of consideration resulting from the execution of agreements related to the offer (including assignment agreements, termination agreements, or any other type of agreement that the company must enter into with the strategic partner) that would imply a positive or negative obligation for the benefit of the offeror or the company, provided that such agreements have been approved by the company’s Board of Directors, taking into account the opinion of the Audit and Corporate Practices Committee, and have been previously disclosed to the investing public).
| 4. | Such public offers referred to in item 1 above, will require prior approval from the majority of the members of our Board of Directors appointed by each one of the series of shares of our capital stock. In case the offeror intends to acquire control of the company, the provisions of the Securities Market Law relative to shareholders’ meetings and shareholders’ rights, insofar as they do not conflict with the provisions of this section, will apply. |
For the purposes of the above, the following rules and procedures will apply under Mexican law and our bylaws:
| (a) | The offeror must inform us, through the Board of Directors, of the terms and conditions of the offer it intends to make by sending a notice to our Board of Directors (the “Offer Notice”). |
| (b) | Immediately after it receives the Offer Notice, our Board of Directors must provide to the Mexican Stock Exchange a notice of applicable legal provisions, and make it available to all our shareholders. |
| (c) | Our Board of Directors must prepare, considering the opinion of the Audit and Corporate Practices Committee, its opinion regarding the price or consideration offered, any other terms and conditions of the offer and conflicts of interest, if any, that each member of the Board of Directors may have with respect to the offer. |
| (d) | The opinion referred to in subsection (c) above may include the opinion of an independent expert retained by our board. |
| (e) | Our Board of Directors will provide the opinion referred to in subsections (c) and (d) above, to the investing public through the Mexican Stock Exchange within three months following receipt of the Offer Notice, at the latest. |
| (f) | The members of our Board of Directors and our chief executive officer of the company must disclose to the investing public, along with the opinion referred to in subsections (c) and (d) above, as applicable, the decision they will take in connection with their own shares. |
| 5. | If our board approves the terms and conditions of any offer, the offeror must obtain prior authorization from the Ministry of Infrastructure, Communications and Transportation for the “change of control” prior to the commencing the public offer. See “Item 4. Information on the Company—Mexican Regulatory Framework—Reporting, Information and Consent Requirements.” |
For purposes of the preceding item 5 exclusively, and in accordance with the provisions of Article 23 of the Mexican Airport Law, a person or group of persons shall be deemed to have control when it owns 35.0% or more of the capital stock of the company, has control of the general shareholders’ meetings, or is able to appoint the majority of the members in charge of management or otherwise control the company.
| 6. | If the holders of the Series BB shares express their interest in accepting an offer (which does not imply any obligation on their part to participate in such offer), the launching of the offer shall be conditioned upon obtaining prior authorizations from the Ministry of Infrastructure, Communications and Transportation, including those relating to the transfer of the Series BB shares and the replacement of ITA in its capacity as strategic partner under the technical assistance agreement. |
| 7. | If our board approves the terms and conditions of an offer, the offeror must complete the other acts that are necessary for the purpose of carrying out the offer. That includes, among other things, obtaining the authorization of the Ministry of Infrastructure, Communications and Transportation, as well as providing the notifications required by applicable law. |
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Changes in Capital Stock
Increases and reductions of our minimum fixed capital must be approved at an extraordinary stockholders’ meeting, subject to the provisions of our bylaws and the Mexican General Law of Business Corporations. Increases or reductions of the variable capital must be approved at an ordinary stockholders’ meeting in compliance with the voting requirements of our bylaws.
We may issue unsubscribed shares that will be kept in the treasury, to be subsequently subscribed by the investing public, provided that (i) the general extraordinary stockholders’ meeting approves the maximum amount of the capital increase and the conditions on which the corresponding placement of shares shall be made, (ii) the subscription of issued shares is made through a public offer after registration in the Mexican National Securities Registry, complying, in either case, with the provisions of the Mexican Securities Market Law and other applicable law and (iii) the amount of the subscribed and paid-in capital of the company is announced when the company makes the authorized capital increase public. The preferential subscription right provided under Article 132 of the Mexican General Law of Business Corporations is not applicable to capital increases through public offers of unsubscribed shares issued pursuant to Article 53 of the Mexican Securities Market Law or repurchased shares issued pursuant to Article 56 of the Mexican Securities Market Law.
The stockholders will have a preferential right to subscribe shares in the event of a capital increase, in proportion to the number of shares held by each at the time the increase is approved pursuant to the provisions of Article 132 of the General Law of Business Corporations, as established hereinafter, unless the subscription offer is made under the provisions of Article 53 or Article 56 of the Mexican Securities Market Law, or in the case of an issuance of shares kept in the Treasury for conversion of debentures in terms of Article 210 of the Mexican Ley General de Títulos y Operaciones de Crédito (General Law of Negotiable Instruments and Credit Transactions).
Our capital stock may be reduced by resolution of a stockholders’ meeting taken pursuant to the rules applicable to capital increases. Our capital stock may also be reduced by repurchase of our own stock in accordance with the Mexican Securities Market Law. Shares of our capital stock belonging to us may not be represented or voted in stockholders’ meetings, nor may corporate or economic rights of any kind be exercised, nor will the shares be considered as outstanding for the purpose of determining the quorum and the votes in stockholders’ meetings.
Ownership of Capital Stock by Subsidiaries
Our subsidiaries may not, directly or indirectly, invest in our shares or shares of any parent company of ASUR, unless such subsidiaries acquired our shares to comply with employee stock option or stock sale plans that are established, granted or designed in favor of the employees or officers of such subsidiaries or through investment companies (sociedades de inversión). The number of shares acquired for such purpose may not exceed 15.0% of our outstanding capital stock.
Liquidation
Upon our dissolution, one or more liquidators must be appointed at an extraordinary stockholders’ meeting to wind up our affairs. All fully paid and outstanding shares will be entitled to participate equally in any distribution upon liquidation. Partially paid shares participate in any distribution in the same proportion that such shares have been paid at the time of the distribution.
Other Provisions
Liabilities of the Members of the Board of Directors
As with any other Mexican corporation, under the provisions of the Mexican Securities Market Law, we or any stockholder or group of stockholders holding at least 5.0% of our capital stock may directly file a civil liability action under Mexican law against the members of the Board of Directors.
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The Mexican Securities Market Law expressly sets forth the concept of “duty of care” for the members of the Board of Directors; that is, they must act in good faith and in the company’s best interest. From a practical point of view, this means that the members of the Board of Directors must request and review information, require the presence of relevant managers and external advisors in board meetings, postpone board meetings as a result of incomplete information, attend board meetings regularly and disclose relevant information to the board and/or the committees.
The Mexican Securities Market Law expressly sets forth the concept of “duty of loyalty” for the members of the Board of Directors, that is, that they must maintain confidentiality, avoid conflicts of interest and not favor their own interest or the interests of certain groups. From a practical point of view, the members of the Board of Directors must abstain from voting on issues in which they have a conflict of interest, follow guidelines for the approval of transactions with related parties, refrain from using or taking advantage of the assets of the company or its subsidiaries and refrain from using privileged information and from taking advantage of business opportunities. A lack of loyalty may result in criminal penalties of up to 12 years of imprisonment.
In accordance with the provisions of the Securities Market Law, the responsibility to indemnify for the damages and losses caused to the Company due to any lack of diligence of the members of the Board of Directors, or its Secretary or Alternate Secretary, regarding any actions or decisions of the Board of Directors or any failure of the Board to act or make a decision because the Board could not legally meet, and in general for any lack of diligence, shall not, individually or in the aggregate, exceed the amount equivalent to the total of net fees received by such individuals from the Company during the prior 12 months. Notwithstanding the foregoing, the limitation on the indemnification amount as set forth in this paragraph shall not be applicable in the event of fraud, willful misconduct, or illegal acts under the Securities Market Law and other laws.
The Company, in any case, is required to indemnify and hold the relevant officers, members of the Board of Directors and the Secretary and Alternate Secretary harmless from any liability that they may incur with respect to third parties in the performance of their duties, which shall include (a) the indemnity amount to be paid for the damages caused by their acts to third parties and, (b) the expenses they may incur (including, without limitation, legal and advisory fees) in connection with item (a) of this paragraph, provided that such expenses are reasonable and duly documented, except in cases of fraud, willful misconduct, or illegal acts under the Securities Market Law and other laws.
Information to Stockholders
The Mexican Securities Market Law establishes that our Board of Directors must present the following reports at the annual stockholders’ meeting:
| ● | the report prepared by the Audit and Corporate Practices Committee; |
| ● | the report prepared by our Chief Executive Officer pursuant to the Mexican General Law on Business Corporations which includes (i) a report of the directors on the operations of the company during the preceding year, as well as on the policies followed by the directors and on the principal existing projects, (ii) a statement of the financial condition of the company at the end of the fiscal year, (iii) a statement showing the results of operations of the company during the preceding year, as well as changes in the company’s financial condition and capital stock during the preceding year, and (iv) notes which are required to complete or clarify the above mentioned information; |
| ● | the Board’s opinion on the report prepared by our Chief Executive Officer as set forth above; and |
| ● | a report explaining the principal accounting and information policies and criteria followed in the preparation of the financial information. |
In addition to the foregoing, our bylaws provide that the Board of Directors must also prepare the information referred to above with respect to any subsidiary that represents at least 20.0% of our net worth (based on the financial statements most recently available).
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Duration
The duration of our corporate existence is indefinite.
Stockholders’ Conflict of Interest
Under Mexican law, any stockholder that has a conflict of interest with respect to any transaction must abstain from voting on such a transaction at the relevant stockholders’ meeting. A stockholder that votes on a transaction in which its interest conflicts with that of ASUR may be liable for damages in the event the relevant transaction would not have been approved without such stockholder’s vote as provided under the Mexican Securities Market Law.
Directors’ Conflict of Interest
Under Mexican law, any director who has a conflict of interest with ASUR in any transaction must disclose the conflict to the other directors and abstain from voting. Any director who violates such provision will be liable to us for any resulting damages or losses. Additionally, our directors may not represent stockholders in the stockholders’ meetings.
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MATERIAL CONTRACTS
Our subsidiaries are parties to the Mexican airport concessions granted by the Ministry of Infrastructure, Communications and Transportation under which we are required to construct, operate, maintain and develop the airports in exchange for certain benefits. See “—Mexican Sources of Regulation” and “—Scope of Concessions and General Obligations of Concession Holders” under “Item 4. Information on the Company—Mexican Regulatory Framework.”
We have entered into a technical assistance agreement with ITA providing for management and consulting services. See “Item 7. Major Shareholders and Related Party Transactions—Related Party Transactions—Arrangements with ITA.”
We, through our Cancún subsidiary, have entered into a series of agreements with the shareholders of Airplan and Oriente, entities that hold concessions to operate several airports in Colombia. In October 2017, we received the necessary approvals from the Colombian regulatory authorities to conclude the acquisition of the stake in Airplan. We terminated our agreement to purchase Oriente in 2018.
On July 30, 2025, we through our subsidiary ASUR US Commercial Airports, LLC entered into a purchase agreement with Unibail-Rodamco-Westfield’s wholly-owned subsidiary Westfield Development, Inc. to acquire all of the issued and outstanding equity interest of URW Airports, LLC for an enterprise value of US$295 million. The acquired business manages select commercial programs at several U.S. airports, including Terminals 1, 2, 3, 6, Tom Bradley International Terminal and Tom Bradley International Terminal West at LAX, Terminal 5 at ORD, and Terminal 8 and New Terminal One at JFK. Further, on November 18, 2025, we through our subsidiary Aeropuerto de Cancún entered into a purchase agreement with Motiva Infraestrutura de Mobilidade S.A. to acquire up to 100% of the shares representing the capital stock of Companhia de Participações em Concessões (CPC Aeroportos), for approximately US$936 million. CPC Aeroportos is an operator of 20 airports in Latin America, including 17 in Brazil, one in Costa Rica, one in Ecuador and one in Curaçao, and is a wholly-owned subsidiary of Motiva de Infraestructura de Mobilidade, S.A. See “—Recent Developments” under “Item 5. Operating and Financial Review and Prospects.”
We, through our subsidiary Airplan, are subject to the Colombian airport concession agreement granted by Aerocivil and the Olaya Herrera Airport Public Authority, under which we are required to perform the administration, operation, commercial development, remodeling, maintenance and modernization the airports in exchange for certain benefits. See “—Scope of Colombian Concessions and General Obligations” under “Item 4. Information on the Company—Colombian Regulatory Framework.”
We, through our subsidiary Aerostar, are subject to the LMM Lease granted by the PRPA, under which we are required to operate, manage, maintain, improve, enhance, develop and rehabilitate the LMM Airport to provide general, ancillary and complementary airport services to members of the general public in exchange for certain benefits. See “—Scope of LMM Lease and General Obligations of Aerostar” under “Item 4. Information on the Company—Puerto Rican Regulatory Framework.”
EXCHANGE CONTROLS
Mexico has had free market for foreign exchange since 1991 and the government has allowed the Mexican peso to float freely against the U.S. dollar since December 1994. There can be no assurance that the government will maintain its current foreign exchange policies.
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TAXATION
The following summary contains a description of the material anticipated U.S. and Mexican federal income tax consequences of the purchase, ownership and disposition of our Series B shares or ADSs by a beneficial holder that is a citizen or resident of the United States or a U.S. domestic corporation or that otherwise will be subject to U.S. federal income tax on a net income basis in respect of our Series B shares or ADSs (a “U.S. holder”) and the Mexican tax consequences of the purchase, ownership and disposition of our Series B Shares or ADSs by a “non-Mexican holder” (as defined below), but it does not purport to be a comprehensive description of all of the tax considerations that may be relevant to a decision to purchase, hold or sell our Series B shares or ADSs. In particular, the summary deals only with U.S. holders that hold our Series B shares or ADSs as capital assets, and does not address the tax treatment of special classes of U.S. holders such as dealers in securities or currencies, U.S. holders whose functional currency is not the U.S. dollar, tax-exempt organizations, financial institutions, insurance companies, partnerships or other pass-through entities, persons who own or are deemed to own 10.0% or more of our stock by vote or value, U.S. holders liable for any alternative minimum tax, securities traders who elect to account for their investment in Series B shares or ADSs on a mark-to-market basis and persons holding Series B shares or ADSs in a hedging transaction or as part of a straddle, conversion or other integrated transaction for U.S. federal income tax purposes. In addition, the summary does not address any U.S. or Mexican state or local tax considerations that may be relevant to a U.S. holder, nor does it address other tax laws such as the Medicare contribution tax on net investment income.
The summary is based upon the federal income tax laws of the United States and Mexico as in effect on the date of this Form 20-F, including the provisions of the income tax treaty between the United States and Mexico and the additional protocols thereto (the “Tax Treaty”), all of which are subject to change, possibly with retroactive effect in the case of U.S. federal income tax law. In addition, a “Treaty Country” is a jurisdiction which has a treaty for the avoidance of double taxation in force with Mexico. Furthermore, the criteria contained herein may differ from those issued by the tax authorities in Article 33, Section I, Paragraph h of the Mexican Federal Tax Code (Código Fiscal de la Federación) or may be contrary to the tax authorities’ interpretation.
Prospective investors in our Series B shares or ADSs should consult their own tax advisors as to the U.S., Mexican or other tax consequences of the purchase, ownership and disposition of the Series B shares or ADSs, including, in particular, the effect of any foreign, state or local tax laws and their entitlement to the benefits, if any, afforded by the Tax Treaty.
For purposes of this summary, the term “non-Mexican holder” shall mean a holder that is not a resident of Mexico for tax purposes and that will not hold the Series B shares or ADSs or a beneficial interest therein in connection with the conduct of a trade or business through a permanent establishment or fixed base in Mexico.
For purposes of Mexican taxation, the definition of residency is highly technical and residency arises in several situations. Generally, an individual is a resident of Mexico if he or she has established his or her home in Mexico or if such individual has his or her home in another country and if his or her “center of vital interests” is located in Mexico and, among other circumstances, more than 50.0% of his or her annual income comes from within Mexico or such individual’s main center of professional activities is located in Mexico. A legal entity is a resident of Mexico if it has either its principal place of business or its place of effective management in Mexico. Therefore, the assessment regarding the residency of an individual or legal entity has to take into account their specific circumstances. In case an individual or legal entity with foreign residency has a permanent establishment in Mexico, for tax purposes, all earnings attributable to such permanent residency shall be subject to Mexican income tax.
In general, for U.S. federal income tax purposes, holders of ADSs will be treated as the beneficial owners of the Series B shares represented by those ADSs.
Taxation of Dividends
Mexican Tax Considerations
Dividends paid to non-Mexican holders with respect to our Series B shares and, as a consequence, with respect to ADSs, are subject to Mexican withholding tax at the rate of 10.0% on the gross amount of the dividend distributed. This withholding tax might not apply to dividend distributions related to certain retained earnings for years prior to 2014. Such 10.0% tax will be remitted by the payer to the Mexican tax authorities as a definitive payment on behalf of the non-Mexican holders.
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Non-Mexican holders that are residents of a Treaty Country may be entitled to a benefit under the provisions of the applicable treaty, such as a reduced tax rate or the elimination of the Mexican withholding rate; therefore, each non-Mexican holder is urged to consult its tax advisor regarding the application requirements of any tax treaty under its particular circumstances.
For Mexican tax purposes, in order to be entitled to the benefits of any tax treaty, non-Mexican holders have to demonstrate that they are tax residents of the corresponding country by means of a tax residency certificate and comply with the procedural provisions set forth in the treaty and in the Mexican Income Tax Law.
Aerostar and Airplan hold undistributed retained earnings which, if paid as dividends, would require the beneficiaries to pay income tax. As of January 1, 2024, the Company recognized the liability for deferred taxes as there is a taxable temporary difference for the retained earnings by Aerostar and Airplan. As of December 31, 2024 and December 31, 2025, the balance of the deferred income tax recognized at the Cancun Airport on the undistributed retained earnings from Aerostar, Airplan and ASUR US (as of December 11, 2025), amounted to Ps.710,991 and Ps. 485,935, respectively.
U.S. Federal Income Tax Considerations
Subject to the discussion below under “Passive Foreign Investment Company Status”, the gross amount of any distributions paid with respect to the Series B shares or ADSs, to the extent paid out of our current or accumulated earnings and profits, as determined for U.S. federal income tax purposes, generally will be includible in the gross income of a U.S. holder as dividend income on the date on which the distributions are received by the U.S. holder in the case of Series B Shares or by the depositary in the case of ADSs. Such distributions will not be eligible for the dividends received deduction allowed to certain corporations under the U.S. Internal Revenue Code of 1986, as amended (the “Code”). To the extent that a distribution exceeds our current and accumulated earnings and profits, it will be treated as a non-taxable return of basis to the extent thereof, and thereafter as capital gain from the sale of Series B shares or ADSs. We do not expect to keep earnings and profits in accordance with U.S. federal income tax principles. Therefore, you should expect that a distribution will generally be treated as a dividend (as discussed below).
Distributions, which will be made in Mexican pesos, will be includible in the income of a U.S. holder in a U.S. dollar amount calculated by reference to the exchange rate in effect on the date they are received by the U.S. holder in the case of shares or by the depositary in the case of ADSs, whether or not they are converted into U.S. dollars on that date. If such distributions are converted into U.S. dollars on the date of receipt, a U.S. holder generally should not be required to recognize foreign currency gain or loss in respect of the distributions; otherwise, any gain or loss on a subsequent sale, conversion or other disposition of the Mexican pesos received generally will be U.S.-source ordinary income or loss, and will not be eligible for the reduced tax rate applicable to long-term capital gains.
Subject to generally applicable limitations and conditions, Mexican dividend withholding tax paid at the appropriate rate applicable to the U.S. holder may be eligible for a credit against such U.S. holder’s U.S. federal income tax liability. These generally applicable limitations and conditions include requirements adopted by the U.S. Internal Revenue Service (“IRS”) in Regulations promulgated in December 2021, and any Mexican tax generally will need to satisfy these requirements in order to be eligible to be a creditable tax. In the case of a U.S. holder that either (i) is eligible for, and properly elects, the benefits of the Tax Treaty, or (ii) consistently elects to apply a modified version of these rules issued under temporary guidance, and complies with the specific requirements set forth in such guidance, the Mexican tax on dividends will be treated as meeting the new requirements and therefore as a creditable tax. In the case of all other U.S. holders, the application of these requirements to the Mexican tax on dividends is uncertain and we have not determined whether these requirements have been met. If the Mexican dividend tax is not a creditable tax for a U.S. holder or the U.S. holder does not elect to claim a foreign tax credit for any foreign income taxes paid or accrued in the same taxable year, the U.S. holder may be able to deduct the Mexican tax in computing such U.S. holder’s taxable income for U.S. federal income tax purposes. Dividend distributions will constitute income from sources without the United States and, for U.S. holders that elect to claim foreign tax credits, generally will constitute “passive category income” for foreign tax credit purposes.
The availability and calculation of foreign tax credits and deductions for foreign taxes depend on a U.S. holder’s particular circumstances and involve the application of complex rules to those circumstances. The temporary guidance discussed above also indicates that the Treasury and the IRS are considering proposing amendments to the December 2021 Regulations and that the temporary guidance can be relied upon until additional guidance is issued that withdraws or modifies the temporary guidance. U.S. holders should consult their own tax advisors regarding the application of these rules to their particular situations.
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The U.S. dollar amount of dividends received by a non-corporate U.S. holder with respect to the Series B shares or ADSs will be subject to tax at a reduced rate if the dividends are “qualified dividends.” Subject to certain exceptions for short -term and hedged positions, dividends will be treated as qualified dividends if: (i) (A) the dividends are received on Series B shares or ADSs which are readily tradable on an established securities market in the United States, or (B) we are eligible for the benefits of a comprehensive tax treaty with the United States which the U.S. Treasury determines is satisfactory for purposes of this provision and which includes an exchange of information program, and (ii) we were not, in the year prior to the year in which the dividend was paid, and are not, in the year in which the dividend is paid, passive foreign investment company (“PFIC”). The ADSs are listed on the New York Stock Exchange and will qualify as readily tradable on an established securities market in the United States so long as they are so listed. In addition, the U.S. Treasury has determined that the Tax Treaty meets the requirements for reduced rates of taxation, and we believe we are eligible for the benefits of the Tax Treaty. Based on our audited financial statements and relevant market and shareholder data, we believe that we were not treated as a PFIC for U.S. federal income tax purposes with respect to our 2024 and 2025 taxable years. Furthermore, based on our audited financial statements and our current expectations regarding the value and nature of our assets, the sources and nature of our income, and relevant market and shareholder data, we do not anticipate becoming a PFIC for our current taxable year or the reasonably foreseeable future, although there can be no assurance in this regard.
Holders of ADSs and Series B shares should consult their own tax advisors regarding the availability of the reduced dividend tax rate in the light of their own particular circumstances.
Taxation of Dispositions of Shares or ADSs
Mexican Tax Considerations
Non-Mexican holders are liable for income tax in Mexico with respect to income derived from sources of wealth located within the national territory. The Mexican Income Tax Law locates the source of wealth for capital gains within the national territory, among other instances, when the shares that are transferred were issued by a Mexican resident entity.
Deposits and withdrawals of our Series B shares in exchange for ADSs will not give rise to Mexican tax or transfer duties.
The Mexican income taxation of the proceeds of a transfer of our Series B shares or ADSs by a non-Mexican holder differs based on the jurisdiction of the holder, the method of effecting the transfer, and a number of other factors. The various outcomes are summarized as follows:
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Non-Mexican holder not resident in Treaty Country: |
Gain on the sale of our Series B shares or ADSs by a non-Mexican holder who is not resident of a Treaty Country will be subject to Mexican withholding tax at the rate of 10.0% on the gain realized on such sale if the transaction is carried out through the Mexican Stock Exchange or other recognized markets. According to the Mexican Income Tax Law, Mexican stock intermediaries participating in these transactions are obligated to carry out the aforementioned withholding. There are no clear rules in those cases in which a non-Mexican intermediary is involved, thus the non-Mexican holder could be obliged to remit the corresponding income tax to the Mexican tax authorities directly.
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Non-Mexican holder resident in Treaty Country: |
Gain on the sale of our Series B shares or ADSs by a non-Mexican holder who is resident of a Treaty Country will not be subject to any Mexican tax if the transaction is carried out through the Mexican Stock Exchange, or any other recognized market, provided that certain requirements set forth by the Mexican Income Tax Law are complied with. A letter stating under oath that the non-Mexican holder is resident in a Treaty Country, as well as the non-Mexican holder’s tax identification or registration number shall be provided to the financial intermediary obligated to make the withholding.
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Sales not subject to the reduced 10.0% withholding rate: |
For a non-Mexican holder that carries out the sale or disposition of our Series B shares or ADSs under any of the following cases, a 35.0% rate on the realized gains would apply in the following cases:
| ● | sales of our Series B shares or ADSs which were acquired by the transferor outside of the Mexican Stock Exchange, or other recognized markets set forth in the Mexican Federal Tax Code, unless, if in a period of 24 months, either in simultaneous or successive transactions, a shareholding of less than 1% of our capital stock is sold in a Mexican Stock Exchange; |
| ● | sales made by a person or group of persons that, directly or indirectly, holds 10.0% or more of the shares representing our capital stock, or that holds a controlling interest in us, if in a period of 24 months, a sale of 10.0% or more of our fully paid shares, or of a controlling interest in us, is carried out through one or several simultaneous or successive transactions, including those carried out through derivative instruments or other similar transactions; |
| ● | pre-negotiated trades executed through the facilities of the Mexican securities Stock Exchange; and |
| ● | trades of shares obtained as a result of our merger or spin-off, in certain cases. |
In cases in which the 35.0% regime is applicable, if the non-Mexican holder is a resident of a Treaty Country, relief in the form of an exemption or a reduced withholding rate may be applicable if certain requirements are met according to the corresponding Treaty. Each holder is urged to consult its tax advisor regarding the application requirements of any tax treaty under its particular circumstances.
U.S. Federal Income Tax Considerations
Subject to the discussion below under “Passive Foreign Investment Company Status”, upon the sale or other disposition of the Series B shares or ADSs, a U.S. holder generally will recognize capital gain or loss in an amount equal to the difference between the amount realized on the sale or other disposition and such U.S. holder’s tax basis in the Series B shares or ADSs. Gain or loss recognized by a U.S. holder on such sale or other disposition generally will be long-term capital gain or loss if, at the time of the sale or other disposition, the Series B shares or ADSs have been held for more than one year. Long-term capital gain recognized by a U.S. holder who is an individual is generally subject to lower rates of federal income taxation than ordinary income or short-term capital gain. The deduction of a capital loss is subject to limitations for U.S. federal income tax purposes.
Deposits and withdrawals of Series B shares by U.S. holders in exchange for ADSs will not result in the realization of gain or loss for U.S. federal income tax purposes. A U.S. holder’s tax basis in such shares will be the same as its tax basis in such ADSs, and the holding period in such shares will be the same as the holding period for such ADSs.
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A U.S. holder generally will not be entitled to credit any Mexican tax imposed on the sale or other disposition of the shares against such U.S. holder’s U.S. federal income tax liability, except in the case of a U.S. holder that consistently elects to apply a modified version of the U.S. foreign tax credit rules that is permitted under temporary guidance and complies with the specific requirements set forth in such guidance. Additionally, capital gain or loss recognized by a U.S. holder on the sale or other disposition of the Series B shares or ADSs generally will be U.S. source gain or loss for U.S. foreign tax credit purposes. Consequently, even if the withholding tax qualifies as a creditable tax for U.S. foreign tax credit purposes, a U.S. holder may not be able to credit the tax against its U.S. federal income tax liability unless such credit can be applied (subject to generally applicable conditions and limitations) against tax due on other income treated as derived from foreign sources. If the Mexican tax is not a creditable tax, the tax would reduce the amount realized on the sale or other disposition of the Series B shares or ADSs even if the U.S. holder has elected to claim a foreign tax credit for other taxes in the same year. The temporary guidance discussed above also indicates that the Treasury and the IRS are considering proposing amendments to the December 2021 regulations and that the temporary guidance can be relied upon until additional guidance is issued that withdraws or modifies the temporary guidance. U.S. holders should consult their own tax advisors regarding the application of the foreign tax credit rules to their investment in, and disposition of, Series B shares or ADSs.
If a U.S. holder sells or otherwise disposes of our Series B shares or ADSs in exchange for currency other than U.S. dollars, the amount realized generally will be the U.S. dollar value of the currency received at the spot rate on the date of sale or other disposition (or, if the shares are traded on an established securities market at such time, in the case of cash basis and electing accrual basis U.S. holders, the settlement date). An accrual basis U.S. holder that does not elect to determine the amount realized using the spot exchange rate on the settlement date will recognize foreign currency gain or loss equal to the difference between the U.S. dollar value of the amount received based on the spot exchange rates in effect on the date of the sale or other disposition and the settlement date. A U.S. holder will have a tax basis in the currency received equal to the U.S. dollar value of the currency received at the spot rate on the settlement date. Any currency gain or loss realized on the settlement date or the subsequent sale, conversion, or other disposition of the non-U.S. currency received for a different U.S. dollar amount generally will be U.S.-source ordinary income or loss, and will not be eligible for the reduced tax rate applicable to long-term capital gains. If an accrual basis U.S. holder makes the election described in the first sentence of this paragraph, it must be applied consistently from year to year and cannot be revoked without the consent of the IRS. U.S. holders should consult their own tax advisors regarding the treatment of any foreign currency gain or loss realized with respect to any currency received in a sale or other disposition of the Series B shares or ADSs.
Other Mexican Taxes
There are no Mexican inheritance, succession or value added taxes applicable to the ownership, transfer or disposition of the Series B shares or ADSs by non-Mexican holders; provided, however, that gratuitous transfers of the Series B shares or ADSs may in certain circumstances cause Mexican income tax to be imposed upon the recipient. There are no Mexican stamp, issue, registration or similar taxes or duties payable by non-Mexican holders of the Series B shares or ADSs.
Passive Foreign Investment Company Status
Special U.S. tax rules apply to investors in companies that are considered to be PFICs. We will be classified as a PFIC in a particular taxable year if either
| ● | 75 percent or more of our gross income for the taxable year is passive income; or |
| ● | the average percentage of the value of our assets that produce or are held for the production of passive income is at least 50 percent. |
Although we believe that we were not a PFIC in 2024 and 2025 and do not anticipate becoming a PFIC in the current year or the reasonably foreseeable future, the determination whether we are a PFIC will be made annually depending on the particular facts and circumstances, such as the valuation of our assets, including goodwill and other intangible assets, at the time. Accordingly, we cannot be certain that we will not be a PFIC in the current year or in future years. Because our belief is based in part on the expected market value of our equity, a decrease in the trading price of our common stock and ADSs may result in our becoming a PFIC.
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If we are a PFIC for any taxable year and any entity in which we own or are deemed to own equity interests is also a PFIC (a “lower-tier PFIC”), a U.S. holder will be deemed to own a proportionate amount (by value) of the shares of each lower-tier PFIC and will be subject to U.S. federal income tax according to the rules described in the next paragraph on (i) certain distributions by the lower-tier PFIC and (ii) dispositions of shares of the lower-tier PFIC, in each case as if the U.S. holder held such shares directly, even though the U.S. holder will not receive any proceeds of those distributions or dispositions.
If we are classified as a PFIC, and a U.S. holder does not make a mark-to-market election, as described in the following paragraph, such U.S. holder will be subject to a special tax at ordinary income tax rates on “excess distributions,” by us and gain that the U.S. holder recognizes on the sale of their Series B shares or ADSs. The amount of income tax on any excess distributions and any gain on the sale of Series B shares or ADSs will be increased by an interest charge to compensate for tax deferral, calculated as if the excess distributions were earned ratably over the period the U.S. holder holds their Series B shares or ADSs. Classification as a PFIC may also have other adverse tax consequences, including, in the case of individuals, the denial of a step-up in the basis of Series B shares or ADSs upon the U.S. holder’s death.
U.S. holders may be able to mitigate some of the unfavorable rules described in the preceding paragraph by electing to mark their Series B shares or ADSs to market. Because a mark-to-market election cannot be made for any lower-tier PFICs that a PFIC may own, a U.S. holder who makes a mark – to - market election with respect to our Series B shares or ADSs will generally continue to be subject to the foregoing rules with respect to such U.S. holder’s indirect interest in any investments held by us that are treated as an equity interest in a PFIC for U.S. federal income tax purposes. If a U.S. holder makes this mark-to-market election, the U.S. holder will be required in any year in which we are a PFIC to include as ordinary income the excess of the fair market value of their shares at year-end over your basis in those shares. In addition, any gain the U.S. holder recognizes upon the sale of their shares will be taxed as ordinary income in the year of sale. The mark - to - market election is available only for “marketable stock,” which is stock that is regularly traded in other than de minimis quantities on at least 15 days during each calendar quarter on a qualified exchange or other market, as defined in the applicable Treasury regulations. We expect the ADSs to be “marketable stock” because our ADSs are listed on the NYSE, but it is unclear whether our Series B ordinary shares would be so treated.
The Code provides an alternative “qualified electing fund” election (a “QEF election”) to U.S. holders that may mitigate the adverse U.S. federal income tax consequences to an electing U.S. holder should we be classified as a PFIC. However, we do not intend to provide holders with the information necessary to make a QEF election.
A U.S. holder that owns an equity interest in a PFIC must annually file IRS Form 8621, and may be required to file other IRS forms. A failure to file one or more of these forms as required may toll the running of the statute of limitations in respect of each of the U.S. holder’s taxable years for which such form is required to be filed. As a result, the taxable years with respect to which the U.S. holder fails to file the form may remain open to assessment by the IRS indefinitely, until the form is filed.
A U.S. holder should consult its tax advisor regarding the potential U.S. federal income tax consequences should we be classified as a PFIC in any taxable year and the desirability of making a mark-to-market election.
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Foreign Financial Asset Reporting
Certain U.S. holders that own “specified foreign financial assets” with an aggregate value in excess of U.S.$50,000 on the last day of the taxable year or U.S.$75,000 at any time during the taxable year are generally required to file an information statement along with their tax returns, currently on Form 8938, with respect to such assets. “Specified foreign financial assets” include any financial accounts held at a non-U.S. financial institution, as well as securities issued by a non-U.S. issuer (which may include the Series B shares or ADSs) that are not held in accounts maintained by financial institutions. Higher reporting thresholds apply to certain individuals living abroad and to certain married individuals. Regulations extend this reporting requirement to certain entities that are treated as formed to hold, or availed of holding, direct or indirect interests in specified foreign financial assets based on certain objective criteria. U.S. holders that fail to report the required information could be subject to substantial penalties. The understatement of income attributable to “specified foreign financial assets” in excess of U.S.$5,000 extends the statute of limitations with respect to the tax return to six years after the return was filed. Prospective investors should consult their own tax advisors concerning the application of these rules to their investment in the Series B shares or ADSs, including the application of the rules to their particular circumstances.
U.S. Information Reporting and Backup Withholding Requirements
Dividends paid on, and proceeds from the sale or other disposition of, the Series B shares or ADSs to a U.S. holder generally may be subject to the information reporting requirements of the Code and may be subject to backup withholding unless the U.S. holder provides an accurate taxpayer identification number and makes any other required certification or otherwise establishes an exemption. Backup withholding is not an additional tax. Amounts withheld as backup withholding will be creditable against the U.S. holder’s U.S. federal income tax liability, provided that the required information is furnished to the IRS.
U.S. Federal Income Tax Consequences for Non-U.S. holders
Distributions
A holder or beneficial owner of Series B shares or ADSs that is not a U.S. holder for U.S. federal income tax purposes (a “non-U.S. holder”) generally will not be subject to U.S. federal income or withholding tax on dividends received on Series B shares or ADSs.
Dispositions
A non-U.S. holder of Series B shares or ADSs generally will not be subject to U.S. federal income or withholding tax on gain realized on the sale or other disposition of Series B shares or ADSs.
Information Reporting and Backup Withholding
Although non-U.S. holders generally are exempt from backup withholding, a non-U.S. holder may be required to comply with certification and identification procedures in order to establish its exemption from information reporting and backup withholding.
DOCUMENTS ON DISPLAY
We file reports, including annual reports on Form 20-F, and other information with the SEC pursuant to the rules and regulations of the SEC that apply to foreign private issuers. Filings we make electronically with the SEC are available to the public on the Internet at the SEC’s website at www.sec.gov and at our website at https://www.asur.com.mx/inversionistas-1 (This URL is intended to be an inactive textual reference only. It is not intended to be an active hyperlink to our website. The information on our website, which might be accessible through a hyperlink resulting from this URL, is not and shall not be deemed to be incorporated into this annual report.)
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Item 11. |
Quantitative and Qualitative Disclosures About Market Risk |
Market Risk
We are principally exposed to market risks from fluctuations in interest rates and foreign currency exchange rates. We use derivative instruments on a selective basis to manage interest rate risk. We do not hold or issue derivatives for speculative purposes and have engaged in trading only with well-known financial institutions.
Foreign Currency Exchange Rate Risk
Our principal exchange rate risk involves changes in the value of the Mexican peso relative to the U.S. dollar. Historically, a significant portion of the revenues generated by our airports (principally derived from passenger charges for international passengers) has been denominated in or linked to the U.S. dollar, although such revenues are largely collected in Mexican pesos based on the average exchange rate for the prior month. In 2023, 2024 and 2025, 27.8%, 29.6% and 27.3%, respectively, of our consolidated revenues were derived from passenger charges for international passengers. In addition, a substantial portion of our contracts with providers of commercial services are denominated in U.S. dollars. In 2023, 2024 and 2025, 33.2%, 29.2% and 26.2%, respectively, of our consolidated revenues were derived from contracts from commercial service providers that are denominated in U.S. dollars. Substantially all of our other revenues are denominated in Mexican pesos. Substantially all of our consolidated costs and expenses are denominated in Mexican pesos (other than the salaries of our executive officers and the technical assistance fee, to the extent paid based on the fixed minimum annual payment). Based on a 5% depreciation of the Mexican peso compared to the U.S. dollar as of December 31, 2025, we estimate that our revenues for the year ended December 31, 2025 would have increased by Ps. 116.0 million.
As of December 31, 2023, 2024, and 2025, 55.0%, 63.8%, 69.4% respectively, of our cash, cash equivalents and investments in financial instruments were denominated in dollars. Based on a 5% depreciation of the Mexican peso compared to the U.S. dollar as of December 31, 2025, we estimate that the value of our cash and cash equivalents and investments in financial instruments as of December 31, 2025 would have increased by Ps.458.2 million.
As of December 31, 2025, 95.5% of our foreign currency indebtedness was denominated in U.S. dollars and 4.5% was denominated in Colombian pesos. A decrease in the value of the Mexican peso relative to the dollar will increase the cost in pesos of servicing our U.S. dollar denominated indebtedness. Based on a 5% depreciation of the Mexican peso compared to the U.S. dollar as of December 31, 2025, we estimate that our long term debt as of December 31, 2025 would have increased by Ps.443.5 million.
As of December 31, 2023, 2024 and 2025, we did not have any outstanding forward foreign exchange contracts.
Interest Rate Risk
We depend upon bank credit facilities to partially finance our operations. These transactions expose us to interest rate risk, with the primary interest rate risk exposure resulting from changes in the relevant base rates (banks charged interest based on TIIEF plus a margin or based on DTF plus a margin of 4.00%) which are used to determine the interest rates that are applicable to borrowings under our credit facilities. All of our interest rate swap agreements expired in 2012. For more information regarding our economic hedging transactions, see “Item 5—Operating and Financial Review and Prospects—Liquidity and Capital Resources—Indebtedness.”
Based on a 1.0% increase in TIIEF, we estimate that the cost of our debt service for the year ended December 31, 2025 would have increased by Ps.183.1 million in 2025. Based on a 1.0% increase in DTF, we estimate that the cost of our debt service for the year ended December 31, 2025 would have increased by Ps.3.2 million in 2025.
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Item 12. |
Description of Securities Other Than Equity Securities |
A. DEBT SECURITIES
Not applicable.
B. WARRANTS AND RIGHTS
Not applicable.
C. OTHER SECURITIES
Not applicable.
D. AMERICAN DEPOSITARY SHARES
Pursuant to our form F-1 filed with the SEC on September 7, 2000, we registered American Depositary Shares (“ADSs”) which are represented by American Depositary Receipts (“ADRs”) in a sponsored facility. The deposit agreement, dated as of September 28, 2000, is among us, The Bank of New York Mellon, as ADR depositary, and all holders from time to time of ADRs issued under the deposit agreement. Copies of the deposit agreement are also on file at the ADR depositary’s corporate trust office and the office of the Mexican custodian for the depositary, Indeval. They are open to inspection by owners and holders during business hours. The depositary’s corporate trust office is located at 101 Barclay Street, New York, New York 10286.
American Depositary Shares
The Bank of New York, as depositary, registers and delivers ADSs. Each ADS represents 10 Series B shares (or a right to receive 10 Series B shares). Each ADS will also represent any other securities, cash or other property which may be held by the depositary.
ADS holders may hold ADSs either (A) directly by having an ADR, which is a certificate evidencing a specific number of ADSs, registered in your name, or (B) indirectly by holding a security entitlement in ADSs through your broker or other financial institution. If you hold ADSs directly, you are a registered ADS holder, also referred to as an ADS holder. This description assumes you are an ADS holder. If you hold the ADSs indirectly, you must rely on the procedures of your broker or other financial institution to assert the rights of ADS holders described in this section. You should consult with your broker or financial institution to find out what those procedures are.
The depositary will be the holder of the Series B shares underlying your ADSs. As a registered holder of ADSs, you will have ADS holder rights. A deposit agreement sets out ADS holder rights as well as the rights and obligations of the depositary. New York law governs the deposit agreement and the ADSs. As an ADS holder, we will not treat you as one of our stockholders and you will not have stockholder rights. Mexican law governs stockholder rights.
The following is a summary of the material provisions of the deposit agreement. For more complete information regarding ADRs, you should read the entire deposit agreement and the form of ADR.
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Fees and Expenses payable by holders are as follows:
Persons depositing or withdrawing shares or |
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U.S.$5.00 (or less) per 100 ADSs (or portion of 100 ADSs) |
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Issuance of ADSs, including issuances resulting from a distribution of shares or rights or other property Cancellation of ADSs for the purpose of withdrawal, including if the deposit agreement terminates |
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A fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited for issuance of ADSs |
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Distribution of securities distributed to holders of deposited securities which are distributed by the depositary to ADS holders |
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Registration or transfer fees |
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Transfer and registration of shares on our share register to or from the name of the depositary or its agent when you deposit or withdraw shares |
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Expenses of the depositary |
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Converting foreign currency to U.S. dollars |
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Any charges incurred by the depositary or its agents for servicing the deposited securities |
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As necessary |
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Taxes and other governmental charges the depositary or the custodian has to pay on any ADS or share underlying an ADS, for example, stock transfer taxes, stamp duty or withholding taxes |
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As necessary |
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The depositary collects its fees for delivery and surrender of ADSs directly from investors depositing shares or surrendering ADSs for the purpose of withdrawal or from intermediaries acting for them. The depositary may collect fees for making distributions to investors by deducting those fees from the amounts distributed or by selling a portion of distributable property to pay the fees. The depositary may collect its annual fee for depositary services by deduction from cash distributions or by directly billing investors or by charging the book-entry system accounts of participants acting for them. The depositary may generally refuse to provide fee-attracting services until its fees for those services are paid.
Dividends and Other Distributions
The depositary has agreed to pay you the cash dividends or other distributions it or the custodian receives on Series B shares or other deposited securities, after deducting its fees and expenses. You will receive these distributions in proportion to the number of Series B shares your ADSs represent.
| ● | Cash. The depositary will convert any cash dividend or other cash distribution we pay on the Series B shares into U.S. dollars, if it can do so on a reasonable basis and can transfer the U.S. dollars to the United States. If that is not possible or if any government approval is needed and cannot be obtained, the deposit agreement allows the depositary to distribute the foreign currency only to those ADS holders to the extent permissible to do so. It will hold the foreign currency it cannot convert for the account of the ADS holders who have not been paid. It will not invest the foreign currency and will not be liable for any interest. |
176
Before making a distribution, the depositary will deduct any withholding taxes that must be paid. It will distribute only whole U.S. dollars and cents and will round fractional cents to the nearest whole cent. If the exchange rates fluctuate during a time when the depositary cannot convert the foreign currency, you may lose some or all of the value of the distribution.
· |
Shares. The depositary may distribute additional ADSs representing any shares we distribute as a dividend or free distribution. The depositary will only distribute whole ADSs. It will try to sell shares that would require it to deliver fractions of ADSs and distribute the net proceeds in the same way as it does with cash. If the depositary does not distribute additional ADSs, the outstanding ADSs will also represent the new shares. |
· |
Rights to purchase additional shares. If we offer holders of our securities any rights to subscribe for additional shares or any other rights, the depositary may, after consultation with us, make these rights available to you (including by any means of warrants or otherwise, if the depositary determines it is feasible and lawful to do so) or sell the rights and distribute the proceeds in the same way as it does with cash. |
The depositary will not offer rights to holders unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act or are registered under the provisions of the Securities Act.
· |
Other Distributions. The depositary will send to you anything else we distribute on deposited securities, in proportion to the number of ADSs you hold, by any means it deems equitable and practicable; provided, however, if it determines the distribution cannot be made proportionately among the holders, or if the distribution is otherwise not feasible, the depositary may adopt such method as it may deem equitable and practicable, including the sale of such property and the distribution of the net proceeds thereof in the same manner as cash distributions. |
The depositary is not responsible if it decides that it is unlawful or impractical to make a distribution available to any ADS holders provided that the depositary has not acted negligently or in bad faith.
Deposit and Withdrawal
The depositary will deliver ADSs upon the deposit of Series B shares with the custodian, subject to your delivery to the depositary or the custodian of any certificates required under the Deposit Agreement and payment of its fees and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees. The depositary will register the appropriate number of ADSs in the names you request.
Voting Rights
As a holder of ADSs, you will not be entitled to attend stockholder’s meetings, but you may instruct the depositary to vote the Series B shares underlying your ADSs. If we ask for your instructions, the depositary will notify you of the upcoming vote and arrange to deliver our voting materials to you. The materials will describe the matters to be voted on and explain how you may instruct the depositary to vote the Series B shares or other deposited securities underlying your ADSs as you direct by a specified date.
If the depositary does not receive voting instructions from you by the specified date, it will consider you to have authorized and directed it to vote the number of deposited securities represented by your ADSs on any question in the same proportion that all other shares of capital stock of the company are voted on such question at the relevant stockholders’ meeting.
We cannot assure you that you will receive the voting materials in time to ensure that you can instruct the depositary to vote your Series B shares. This means that you may not be able to exercise your right to vote and there may be nothing you can do if your Series B shares are not voted as you requested.
177
Fees and Expenses
ADS holders must pay (1) taxes and other governmental charges the depositary or the custodian have to pay on any ADS or Series B share underlying an ADS; (2) registration or transfer fees for transfer and registration of shares on our share register to or from the name of the depositary or its agent when you deposit or withdraw shares; (3) certain cable, telex and facsimile transmission expenses; (4) expenses of the depositary in converting foreign currency to U.S. dollars; (5) U.S.$5.0 (or less) per 100 ADSs (or portion of 100 ADSs) for the execution and delivery or surrender of ADRs pursuant to the deposit agreement, including if the deposit agreement terminates; (6) (to the extent permitted by the rules of any stock exchange on which ADSs are listed for trading) a fee of U.S.$0.02 or less per ADS for any distribution of proceeds of sales of securities or rights (but not for cash distributions); (7) with respect to distributions of property other than cash, shares or rights to purchase shares, a fee equivalent to the fee that would be payable if such property had been deposited for issuance of ADSs; and (8) any other charges.
Payment of Taxes
ADS holders will be responsible for any taxes or other governmental charges payable on ADSs or on the deposited securities represented by any ADSs. The depositary may refuse to register any transfer of ADSs or allow withdrawal of the deposited securities represented by ADSs until such taxes or other charges are paid. It may apply payments owed to ADS holders or sell deposited securities represented by an ADS holder’s ADSs to pay any taxes owed and such holder will remain liable for any deficiency. If the depositary sells deposited securities, it will, if appropriate, reduce the number of ADSs to reflect the sale and pay to ADS holders any proceeds, or send to ADS holders any property, remaining after it has paid the taxes.
Reclassifications, Recapitalizations and Mergers
Upon any change in par value, split-up, consolidation or any other reclassification or deposited securities, or upon any recapitalization, reorganization, merger or consolidation or sale of assets affecting our company or to which we are a party, any securities received by the depositary or custodian in exchange for or in conversion of such securities will be treated as additional securities, and the underlying ADSs will represent, in addition to the Series B shares underlying the ADSs, the right to receive such new securities in exchange for conversion, unless, at our request and with our approval, the depositary delivers additional ADRs.
Amendment and Termination
We may agree with the depositary to amend the deposit agreement and the ADSs without your consent for any reason. If an amendment adds or increases fees or charges, except for taxes and other governmental charges, or prejudices a substantial right of ADS holders, it will not become effective for outstanding ADSs until 30 days after the depositary notifies ADS holders of the amendment. At the time an amendment becomes effective, you are considered, by continuing to hold your ADSs, to agree to the amendment and to be bound by the ADSs and the deposit agreement as amended.
The depositary will terminate the deposit agreement if we ask it to do so. The depositary may also terminate the deposit agreement if the depositary has told us that it would like to resign and we have not appointed a new depositary bank within 90 days. In either case, the depositary must notify you at least 30 days before termination.
After termination, the depositary and its agents will do the following under the deposit agreement but nothing else: (a) collect distributions on the deposited securities, (b) sell rights and other property and (c) deliver Series B shares, dividends and other distributions, proceeds of any sale and other deposited securities upon surrender of ADSs. Two years or more after termination, the depositary may sell any remaining deposited securities by public or private sale. After that, the depositary will hold the money it received on the sale, as well as any other cash it is holding under the deposit agreement for the pro rata benefit of the ADS holders that have not surrendered their ADSs. It will not invest the money and has no liability for interest. The depositary’s only obligations will be to account for the money and other cash. After termination our only obligations will be to indemnify the depositary and to pay fees and expenses of the depositary that we agreed to pay.
178
Limitations on Obligations and Liability
The deposit agreement expressly limits our obligations and the obligations of the depositary. It also limits our liability and the liability of the depositary. Each of us and the depositary:
| ● | are only obligated to take the actions specifically set forth in the deposit agreement with good faith using reasonable efforts; |
| ● | are not liable if it is prevented or delayed by law or circumstances beyond its control from performing its obligations under the deposit agreement; |
| ● | are not liable if it exercises discretion permitted under the deposit agreement; |
| ● | have no obligation to become involved in a lawsuit or other proceeding related to the ADSs or the deposit agreement unless it receives an indemnity satisfactory to it; and |
| ● | may rely upon any advice or information from any person it believes in good faith to be competent to give such advice or information. |
In the deposit agreement, we agree to indemnify the depositary for acting as depositary, except for losses caused by the depositary’s own negligence or bad faith, and the depositary agrees to indemnify us for losses resulting from its negligence or bad faith.
Requirements for Depositary Actions
Before the depositary will deliver or register a transfer of ADSs, make a distribution on ADSs, or permit withdrawal of shares or other property, the depositary may require:
| ● | payment of stock transfer or other taxes or other governmental charges and transfer or registration fees charged by third parties for the transfer of any Series B shares or other deposited securities; |
| ● | satisfactory proof of the identity and genuineness of any signature or other information it deems necessary; and |
| ● | compliance with regulations it may establish, from time to time, consistent with the deposit agreement, including presentation of transfer documents. |
The depositary may refuse to deliver ADSs or register transfers of ADSs generally when the transfer books of the depositary or our transfer books are closed or at any time if the depositary or we think it advisable to do so.
Your Right to Receive the Series B Shares Underlying your ADSs
You have the right to withdraw the Series B shares underlying your ADSs at any time except:
| ● | when the depositary has closed its transfer books or we have closed our transfer books; |
| ● | when you owe money to pay fees, taxes and similar charges; or |
| ● | when it is deemed necessary or advisable by us or the depositary, for any reason, at any time, to prohibit withdrawals in order to comply with any laws, governmental regulations or requirements of any securities exchange that apply to ADSs or to the withdrawal of Series B shares or other deposited securities. |
This right of withdrawal may not be limited by any other provision of the deposit agreement.
179
Fees payable by the depositary
From January 1, 2025 through December 31, 2025, the depositary reimbursed or otherwise paid us approximately U.S.$82.0 thousand in compensation in connection with the ADS program. Such amounts include payments for continuing annual stock exchange listing fees, standard out-of-pocket maintenance costs for the ADRs (consisting of the expenses of postage and envelopes for mailing annual and interim financial reports, printing and distributing dividend checks, electronic filing of U.S. Federal tax information, mailing required tax forms, stationery, postage, facsimile, and telephone calls), and legal fees.
The Bank of New York Mellon, as depositary, has agreed to reimburse us for expenses we incur that are related to establishment and maintenance expenses of the ADS program. The depositary has agreed to reimburse us for its continuing annual stock exchange listing fees. The depositary has also agreed to pay the standard out-of-pocket maintenance costs for the ADRs, which consist of the expenses of postage and envelopes for mailing annual and interim financial reports, printing and distributing dividend checks, electronic filing of U.S. Federal tax information, mailing required tax forms, stationery, postage, facsimile, and telephone calls. It has also agreed to reimburse us annually for certain investor relationship programs or special investor relations promotional activities. There are limits on the amount of expenses for which the depositary will reimburse us, but the amount of reimbursement available to us is not necessarily tied to the amount of fees the depositary collects from investors.
180
PART II
Item 13. |
Defaults, Dividend Arrearages and Delinquencies |
Not applicable.
Item 14. |
Material Modifications to the Rights of Security Holders and Use of Proceeds |
Not applicable.
Item 15. |
Controls and Procedures |
The Company’s management has evaluated, with the participation of our Chief Executive Officer and Chief Financial Officer, the effectiveness of our disclosure controls and procedures as of December 31, 2025. There are inherent limitations to the effectiveness of any system of disclosure controls and procedures, including the possibility of human error and the circumvention or overriding of the controls and procedures. Accordingly, even effective disclosure controls and procedures can only provide reasonable assurance of achieving their control objectives. Based upon our evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective as of December 31, 2025 to provide reasonable assurance that information required to be disclosed by us in the reports that we file or submit under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported, within the time periods specified in the applicable rules and forms, and that it is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.
Management’s Annual Report on Internal Control Over Financial Reporting
The Company’s management is responsible for establishing and maintaining adequate internal control over financial reporting. The Company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with International Financial Reporting Standards. We conducted an assessment of the effectiveness of our internal control over financial reporting as of December 31, 2025 using the criteria set forth in the “Internal Control – Integrated Framework” published by the Committee of Sponsoring Organizations of the Treadway Commission in 2013.
Management has excluded ASUR US Commercial Airports, LLC from its assessment of internal control over financial reporting as of December 31, 2025, because it was acquired by the Company in a purchase business combination during 2025. ASUR US Commercial Airports, LLC is a wholly-owned subsidiary whose total assets and total revenues excluded from management’s assessment represent 16% and less than 1%, respectively, of the related consolidated financial statement amounts as of and for the year ended December 31, 2025.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of the effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, and that the degree of compliance with the policies or procedures may deteriorate.
Based on its assessment and using the criteria discussed above, our management has concluded that the Company’s internal control over financial reporting was effective as of December 31, 2025.
PricewaterhouseCoopers, S.C., the independent registered public accounting firm that has audited our financial statements, has audited the effectiveness of the Company’s internal control over financial reporting as of December 31, 2025, as stated in the report included in Item 18 of this annual report.
Changes in Internal Control Over Financial Reporting
There was no change in our internal control over financial reporting during 2025 that materially affected, or was reasonably likely to materially affect, our internal control over financial reporting.
181
Item 16. |
[Reserved] |
Item 16A.Audit and Corporate Practices Committee Financial Expert
Our Board of Directors designated Guillermo Ortiz Martinez, an independent director as required by the Mexican Securities Market Law and applicable NYSE listing standards, as an “Audit and Corporate Practices Committee financial expert” within the meaning of this Item 16A at a meeting of our Board of Directors on June 1, 2010. See “Item 6. Directors, Senior Management and Employees—Directors.”
Item 16B.Code of Ethics
We have adopted a code of ethics, as defined in Item 16B of Form 20-F under the Securities Exchange Act of 1934, as amended. Our code of ethics applies to our chief executive officer, chief financial officer, chief accounting officer and persons performing similar functions as well as to our Board of Directors, members of our Committees and other officers and employees. Our code of ethics is filed as an exhibit to this Form 20-F and is available on our website at www.asur.com.mx. If we amend the provisions of our code of ethics that apply to the aforementioned parties, or if we grant any waiver of such provisions, we will disclose such amendment or waiver on our website at the same address.
Item 16C.Principal Accountant Fees and Services
Audit and Non-Audit Fees
The following table sets forth the fees billed to us by our independent auditors, PricewaterhouseCoopers, S.C., during the fiscal years ended December 31, 2024 and 2025:
|
|
Year ended December 31, |
|||
|
|
(thousands of Mexican pesos) |
|||
|
|
2024 |
|
2025 |
|
Audit fees |
|
|
37,546 |
|
45,603 |
Audit-related fees |
|
|
— |
|
— |
Tax |
|
|
1,303 |
|
5,211 |
All others |
|
|
128 |
|
234 |
Total fees |
|
|
38,977 |
|
51,047 |
Audit fees in the above table are the aggregate fees billed by PricewaterhouseCoopers, S.C., in connection with the audit of our annual financial statements and the review of our interim financial statements as well as statutory and regulatory audits.
Tax fees in the above table refer to the aggregate fees billed by PricewaterhouseCoopers, S.C., for local tax compliance services and transfer pricing services.
All other fees refer to fees billed by PricewaterhouseCoopers, S.C. for an online platform membership for training and general updating, on accounting, tax and financial issues.
Audit and Corporate Practices Committee Pre-Approval Policies and Procedures
Our Audit and Corporate Practices Committee has not established pre-approval policies and procedures for the engagement of our independent auditors for services. Our Audit and Corporate Practices Committee expressly approves on a case-by-case basis any engagement of our independent auditors for audit and non-audit services provided to our subsidiaries or to us.
Our Audit and Corporate Practices Committee prepares an annual report on its activities, which is distributed prior to our annual meeting by our Board of Directors to shareholders as of the record date.
182
Item 16D.Exemptions from the Listing Standards for Audit and Corporate Practices Committees
Not applicable.
Item 16E.Purchases of Equity Securities by the Issuer and Affiliated Purchasers
We did not, directly or indirectly, purchase any of our equity securities in 2022. The table below sets forth, for the periods indicated, the total number of shares purchased by us or on our behalf, or by an affiliated purchaser or on behalf of an affiliated purchaser, the average price paid per share, the total number of shares purchased as a part of a publicly announced repurchase plan or program and the maximum number (or approximate dollar value) of shares that may yet be purchased under our plans and programs.
|
|
|
|
|
|
(c) Total number of |
|
(d) Maximum |
|
|
(a) Total |
|
|
|
shares purchased as |
|
number of shares |
|
|
number of |
|
(b) Average |
|
part of publicly |
|
that may yet be |
|
|
shares |
|
price paid per |
|
announced plans or |
|
purchased under |
2024 |
|
purchased |
|
share in Pesos |
|
programs |
|
the plans or programs |
January 1-31 |
|
— |
|
— |
|
— |
|
— |
February 1-28 |
|
— |
|
— |
|
— |
|
— |
March 1-31 |
|
— |
|
— |
|
— |
|
— |
April 1-30 |
|
— |
|
— |
|
— |
|
— |
May 1-31 |
|
— |
|
— |
|
— |
|
— |
June 1-30 |
|
— |
|
— |
|
— |
|
— |
July 1-31 |
|
— |
|
— |
|
— |
|
— |
August 1-31 |
|
— |
|
— |
|
— |
|
— |
September 1-30 |
|
— |
|
— |
|
— |
|
— |
October 1-31 |
|
— |
|
— |
|
— |
|
— |
November 1-30(1) |
|
1,504,464 |
|
U.S.$530.86 |
|
— |
|
— |
December 1-31 |
|
— |
|
— |
|
— |
|
— |
2024 Total |
|
— |
|
— |
|
— |
|
— |
(1) |
As of December 31, 2024 our Chairman of the Board of Directors Fernando Chico Pardo owned, directly or indirectly, 99.99% of CHPAF Holdings, S.A.P.I. de C.V., which purchased 2,983,566 Series B shares in the open market in October and November 2024. |
|
|
|
|
|
|
(c) Total number |
|
(d) Maximum number |
|
|
(a) Total |
|
(b) Average |
|
of shares purchased |
|
of shares that may |
|
|
number of |
|
price paid |
|
as part of publicly |
|
yet be purchased |
|
|
shares |
|
per share |
|
announced |
|
under the |
2025 |
|
purchased |
|
in Pesos |
|
plans or programs |
|
plans or programs |
January 1-31 |
|
— |
|
— |
|
— |
|
— |
February 1-28 |
|
— |
|
— |
|
— |
|
— |
March 1-31 |
|
— |
|
— |
|
— |
|
— |
April 1-30 |
|
— |
|
— |
|
— |
|
— |
May 1-31 |
|
— |
|
— |
|
— |
|
— |
June 1-30 |
|
— |
|
— |
|
— |
|
— |
July 1-31 |
|
— |
|
— |
|
— |
|
— |
August 1-31 |
|
— |
|
— |
|
— |
|
— |
September 1-30 |
|
— |
|
— |
|
— |
|
— |
October 1-31 |
|
— |
|
— |
|
— |
|
— |
November 1-30(1) |
|
— |
|
— |
|
— |
|
— |
December 1-31 |
|
— |
|
— |
|
— |
|
— |
2025 Total |
|
— |
|
— |
|
— |
|
— |
(1) |
Our Chairman of the Board of Directors Fernando Chico Pardo owns, directly or indirectly, 99.99% of CHPAF Holdings, S.A.P.I. de C.V., which purchased 2,983,566 Series B Shares in the open market in October and November, 2024. |
183
Item 16F.Change in Registrant’s Certifying Accountant.
Not applicable.
Item 16G.Corporate Governance
Pursuant to Section 303A.11 of the Listed Company Manual of the New York Stock Exchange, we are required to provide a summary of the significant ways in which our corporate governance practices differ from those required for U.S. companies under the NYSE listing standards. We are a Mexican corporation with shares listed on the Mexican Stock Exchange. Our corporate governance practices are governed by our bylaws, the Securities Market Law and the regulations issued by the Mexican National Banking and Securities Commission. We also generally comply on a voluntary basis with the Mexican Code of Best Corporate Practices (Código de Mejores Prácticas Corporativas) as indicated below, which was created in January 2001 and amended in 2006 by a group of Mexican business leaders and was endorsed by the Mexican Banking and Securities Commission. On an annual basis, we file a report with the Mexican Banking and Securities Commission and the Mexican Stock Exchange regarding our compliance with the Mexican Code of Best Corporate Practices.
The table below discloses the significant differences between our corporate governance practices and the NYSE standards.
NYSE Standards |
|
Our Corporate Governance Practice |
|
|---|---|---|---|
|
|
|
|
Director Independence. Majority of Board of Directors must be independent. §303A.01 |
|
Pursuant to the Mexican Securities Market Law, we are required to have a board of directors composed of a maximum of twenty-one members, 25.0% of whom must be independent. Stockholders are required to make a determination as to the independence of our directors. Our bylaws provide that our Board of Directors must be composed of such odd number of members as determined by our shareholders at the annual meeting, which shall not be less than seven and shall be subject to the maximum limit set forth by the Mexican Securities Market Law. Currently, our board has eleven members, of which seven are independent under the Sarbanes-Oxley Act of 2002 and as qualified by our shareholders as provided in the Mexican Securities Market Law. The definition of independence applicable to us pursuant to the Mexican Securities Market Law differs in certain respects from the definition applicable to U.S. issuers under the NYSE rules. |
|
|
|
|
|
Executive Sessions. Non-management directors must meet regularly in executive sessions without management. Independent directors should meet alone in an executive session at least once a year. §303A.03 |
|
Our non-management and independent directors are not required to meet in executive sessions and generally do not do so. Executive sessions are not expressly recommended by the Mexican Code of Best Corporate Practices. None of our members of management are members of our Board of Directors nor our other committees. |
|
|
|
|
|
Audit and Corporate Practices Committee. Audit and Corporate Practices Committee satisfying the independence and other requirements of Rule 10A-3 under the Exchange Act and the more stringent requirements under the NYSE standards is required. §§303A.06, 303A.07 |
|
We are in compliance with the independence requirements of Rule 10A-3, but the members of our Audit and Corporate Practices Committee are not required to satisfy the NYSE independence and other Audit and Corporate Practices Committee standards that are not prescribed by Rule 10A-3. The principal characteristics of our Audit and Corporate Practices Committee are as follows: |
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|
|
|
|
184
NYSE Standards |
|
Our Corporate Governance Practice |
|
|---|---|---|---|
|
|
|
|
|
|
●
Our Audit and Corporate Practices Committee is composed of three members, all of whom are members of our Board of Directors.
|
|
|
|
|
|
|
|
●
All of the members of our Audit and Corporate Practices Committee and the committee’s Chairman are independent.
|
|
|
|
||
|
|
●
The Chairman of the Audit and Corporate Practices Committee is appointed and/or removed exclusively by the general shareholders’ meeting.
|
|
|
|
||
|
|
●
Our Audit and Corporate Practices Committee operates pursuant to provisions in the Mexican Securities Market Law and our bylaws.
|
|
|
|
||
|
|
●
Our Audit and Corporate Practices Committee submits an annual report regarding its activities to our Board of Directors and presents that report at the annual stockholders’ meeting.
|
|
|
|
|
|
|
|
The duties of our Audit and Corporate Practices Committee include, among others, the following: |
|
|
|
|
|
|
|
●
overseeing of our internal auditing and controls systems,
|
|
|
|
|
|
|
|
●
appointing, removing and supervising our external auditor,
|
|
|
|
|
|
|
|
●
ensuring compliance with our bylaws by officers and directors of the company and its subsidiaries,
|
|
|
|
|
|
|
|
●
making recommendations to the Nomination and Compensation Committee with respect to the removal of directors and officers for violations of the bylaws or any other applicable legal provision,
|
|
|
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|
|
|
|
●
overseeing compliance with the corporate governance provisions as set forth in the General Law of Business Companies (Ley General de Sociedades Mercantiles), and the Mexican Securities Market Law and protection of minority shareholder rights,
|
|
|
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|
|
|
|
●
overseeing related-party transactions, and
|
|
|
|
|
|
|
|
●
preparing certain periodic reports for the Board of Directors pursuant to the Mexican Securities Market Law and our bylaws.
|
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|
|
|
Nominating/corporate governance and compensation committee. Nominating/corporate governance committee of independent directors and compensation committee of independent directors are required. Compensation committee must approve executive officer compensation. Each committee must have a charter specifying the purpose, duties and evaluation procedures of the committee. §303A.04 and §303A.05
|
|
Pursuant to the Mexican Securities Market Law, we are required to have a committee that performs corporate governance functions (comité de prácticas societarias). The board has vested all such functions and responsibilities in our Audit and Corporate Practices Committee. The duties of our Audit and Corporate Practices Committee with regard to corporate practices are, among others, the following: |
|
|
|
|
|
185
NYSE Standards |
|
Our Corporate Governance Practice |
|
|---|---|---|---|
|
|
|
|
|
|
●
evaluating the performance of relevant officers, reviewing related-party transactions, and determining the total compensation package of the chief executive officer.
|
|
|
|
||
|
|
We are not required to have a nominating or a compensation committee, but the Mexican Code of Best Corporate Practices recommends that companies have an evaluation and compensation committee. Our bylaws provide for a Nominations and Compensation Committee, which we believe carries out the principal duties of an evaluation and compensation committee and a nominating/corporate governance committee. |
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|
The duties of our Nomination and Compensation Committee include, among others, the following: |
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|
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|
●
proposing individuals to serve as directors at the shareholders meeting,
|
|
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|
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●
proposing individuals to serve as officers to the Board of Directors,
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●
proposing compensation for directors and officers at the shareholders’ meeting or to the Board of Directors, as applicable,
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●
proposing for consideration at the shareholders’ meeting the removal of members of the Board of Directors and officers, and
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submitting an annual report on its activities to the Board of Directors and the shareholders.
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The Nomination and Compensation Committee is currently composed of three members who are appointed by the shareholders at the shareholders’ meeting. Pursuant to our bylaws, at least one member is appointed by the Series B shareholders and at least one member is appointed by the Series BB shareholders. Our Nomination and Compensation Committee is not required to be composed of independent directors. |
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Equity compensation plans. Equity compensation plans require shareholder approval, subject to limited exemptions. §303A.08 |
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Shareholder approval is not expressly required under our bylaws for the adoption and amendment of an equity-compensation plan. No equity-compensation plans have been approved by our shareholders. |
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Code of Ethics. Corporate governance guidelines and a code of business conduct and ethics is required, with disclosure of any waiver for directors or executive officers. §303A.09 and §303A.10 |
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We have adopted a code of ethics applicable to all of our directors and executive officers, which is available to you free of charge upon request and at www.asur.com.mx. We are required by Item 16B of Form 20-F to disclose any waivers granted to our chief executive officer, chief financial officer and persons performing similar functions, as well as to our other officers/employees. |
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Item 16H.Mine Safety Disclosure
Not applicable.
186
Item 16I.Jurisdictions that Prevent Inspections
Not applicable.
Item 16J.Insider Trading Policies
ASUR has adopted comprehensive policies and procedures to ensure compliance with insider trading laws, rules, regulations and applicable listing standards, including its Code of Conduct, which outlines the ethical standards and general behavioral guidelines applicable to all directors, officers, and employees, including provisions to prevent the misuse of material non-public information.
These policies collectively address key aspects of insider trading prevention, including pre-clearance requirements for securities transactions, defined blackout periods, and guidelines for the appropriate handling of sensitive information. ASUR is committed to regularly reviewing and updating these policies to ensure alignment with evolving regulatory requirements and best practices.
Item 16K.Cybersecurity
Risk Management and Strategy
We maintain a comprehensive process for assessing, identifying and managing material risks from cybersecurity threats, including risks relating to disruption of business operations or financial reporting systems, intellectual property theft, fraud, extortion harm to employees or customers, violation of privacy laws and other litigation and legal risk, and reputational risk, as part of our overall risk management system and processes. Cybersecurity risks are considered in the risk management annual reports submitted to the Audit Committee.
Key components of our cybersecurity risk management processes include the following:
· |
cybersecurity processes designed to conform to the National Institute of Standards and Technology Cybersecurity Framework, |
· |
a multidisciplinary Information and Technology (IT) team in charge of managing cybersecurity risk and responding to cyber incidents, |
· |
the IT team has been trained and has professional certifications in computer security, |
· |
a cyber incident response plan has been developed, which includes internal escalation towards senior management and the board of directors, as well as disclosure to the stock exchange, if necessary, |
· |
the cybersecurity processes are reviewed, tested, updated and approved, according to our internal policies, which include, among others, conducting assessment tests and disaster recovery plans to test the main components of our IT infrastructure, and |
· |
a third-party cyber risk management process for vendors that includes, among other things, a security assessment to determine whether they are aware of vulnerabilities and associated risks before engaging them and using their services. Additionally, we regularly conduct vulnerability scans, validation of anti-malware and anti-intrusion systems, as well as network segmentation and content filtering. If during our security assessments, we identify potential cybersecurity risks, we restrict the access to that provider to our systems. |
Additionally, in connection with our cybersecurity risk management processes, our internal experts perform several tests aimed to validate the effectiveness of the cybersecurity risk management processes.
We engage with external legal counsel on any matters relating to cybersecurity risk management, and also engage third-parties to provide trainings or to facilitate tabletop exercises.
187
Our business strategy, results of operations and financial condition have not been materially affected by risks from cybersecurity threats, including as a result of previous cybersecurity incidents, but we cannot provide assurance that they will not be materially affected in the future by such risks and any future material incidents See “Risk Factors” in Item 3 of this Annual Report on Form 20-F for more information on our cybersecurity related risks.
Governance
Management
The cybersecurity risk management processes described above are conducted by the IT Manager and Chief Information Security Officer CISO, who is graduated in computer science and has a masters in information technology. Additionally, he has obtained several international certifications, including Certified Information Systems Auditor (CISA) from ISACA, Certified Information Systems Security Professional (CISSP) from ISC2, and Certified Ethical Hacker (C|EH) and Certified Hacking Forensic Investigator (CHFI) from EC-Council. He has more than 30 years of experience in information technology areas, focused on cybersecurity and systems auditing.
Additionally, there is a cybersecurity committee comprised of the Chief Executive Officer, Legal director, Audit Manager and IT Manager. This committee meets every time there is a cybersecurity incident that impacts the Company and is in charge of performing a materiality analysis of such cybersecurity incidents, taking into consideration the scope, cost, operational/commercial impact, regulatory compliance, legal and reputational impact, among others.
Board of Directors
The board of director’s Audit Committee is primarily responsible for the oversight of risks from cybersecurity threats, as well as for the review and approval of cybersecurity-related policies. The Audit Committee has decided to retain the oversight of risks in connection with cybersecurity threats, due to the importance of cybersecurity-related risks to our stakeholders.
To fulfill this responsibility, the Audit Committee receives reports about cybersecurity incidents. Additionally, on a quarterly basis the Audit Manager and the external audit associate report to the Audit Committee any relevant cybersecurity risks and incidents identified during the relevant period. Finally, as part of the annual risk assessment, the Audit Committee reviews and approves the cybersecurity processes.
188
PART III
Item 17. |
Financial Statements |
Not applicable.
Item 18. |
Financial Statements |
See pages F-1 through F-7. The following is an index to the financial statements:
Consolidated Financial Statements for Grupo Aeroportuario del Sureste, S.A.B. de C.V. and Subsidiaries
189
Item 19. |
Exhibits |
Documents filed as exhibits to this annual report:
Exhibit No. |
Description |
|---|---|
1.1 |
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2.1 |
Deposit Agreement among the Company, The Bank of New York and all registered holders from time to time of any American Depositary Receipts, including the form of American Depositary Receipt (incorporated by reference to our registration statement on Form F-1 (File No. 333-12486) filed on September 7, 2000). |
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2.2 |
Reserved. |
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2.3 |
Reserved. |
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2.4 |
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2.5 |
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2.d |
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3.1 |
Trust Agreement among the Company, ITA and Bancomext, together with an English translation (incorporated by reference to our registration statement on Form F-1 (File No. 333-12486) filed on September 7, 2000). |
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3.2 |
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3.3 |
Reserved. |
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4.1 |
Amended and Restated Cancún Airport Concession Agreement and annexes thereto, together with an English translation and a schedule highlighting the differences between this concession and the Company’s other concessions (incorporated by reference to our registration statement on Form F-1 (File No. 333-12486) filed on September 7, 2000). |
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4.2 |
Reserved. |
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4.3 |
Reserved. |
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4.4 |
Reserved. |
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4.5 |
Technical Assistance and Transfer of Technology Agreement among the Company, Servicios Aeroportuarios del Sureste, S.A. de C.V., Aeropuerto de Cancún, S.A. de C.V., Aeropuerto de Cozumel, S.A. de C.V., Aeropuerto de Huatulco, S.A. de C.V., Aeropuerto de Mérida, S.A. de C.V., Aeropuerto de Minatitlán, S.A. de C.V., Aeropuerto de Oaxaca, S.A. de C.V., Aeropuerto de Tapachula, S.A. de C.V., Aeropuerto de Veracruz, S.A. de C.V., Aeropuerto de Villahermosa, S.A. de C.V., Triturados Basalticos y Derivados, S.A. de C.V., Copenhagen Airports, Cintra Concesiones de Infraestructuras de Transporte, S.A., VINCI, S.A. and ITA, together with an English translation (incorporated by reference to our registration statement on Form F-1 (File No. 333-12486) filed on September 7, 2000). |
190
4.6 |
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4.7 |
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4.8 |
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4.9 |
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4.10 |
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4.11 |
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4.12 |
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4.13 |
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4.14 |
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4.15 |
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191
4.16 |
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4.17 |
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4.18 |
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4.19 |
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4.19.1 |
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4.19.2 |
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4.19.3 |
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4.19.4 |
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4.19.5 |
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4.19.6 |
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4.19.7 |
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4.19.8 |
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4.19.9 |
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4.19.10 |
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4.19.11 |
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4.20 |
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4.20.1 |
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4.20.2 |
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4.20.3 |
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4.20.4 |
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4.20.5 |
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4.20.6 |
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4.20.7 |
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4.20.8 |
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192
4.20.9 |
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4.21 |
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4.22 |
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4.23 |
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4.24 |
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4.25 |
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8.1 |
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11.1 |
Code of Ethics (incorporated by reference to our Form 20-F filed on June 16, 2004). |
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12.1 |
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13.1 |
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97.1 |
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101.INS |
XBRL Instance Document |
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101.SCH |
XBRL Taxonomy Extension Schema Document |
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101.CAL |
XBRL Taxonomy Extension Calculation Linkbase Document |
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101.DEF |
XBRL Taxonomy Extension Definition Linkbase Document |
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101.LAB |
XBRL Taxonomy Extension Label Linkbase Document |
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101.PRE |
XBRL Taxonomy Extension Presentation Linkbase Document |
* Certain portions of this exhibit have been redacted pursuant to 4(a) of the Instructions as to Exhibits of Form 20-F. The Company agrees to furnish supplementally an unredacted copy of the exhibit to the SEC upon its request.
193
SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this annual report on its behalf.
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Grupo Aeroportuario del Sureste, S.A.B. de C.V. |
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By: |
/s/ Adolfo Castro Rivas |
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Name: |
Adolfo Castro Rivas |
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Title: |
Chief Executive Officer and |
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Chief Financial Officer |
Dated: April 16, 2026
194
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Index
December 31, 2023, 2024 and 2025
Contents |
Page |
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Report of Independent Registered Public Accounting Firm (PCAOB ID 1128) |
F-1 to F-3 |
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Financial statements: |
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F-4 |
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F-5 |
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F-6 |
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F-7 |
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F-8 to F-80 |
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Stockholders of
Grupo Aeroportuario del Sureste, S. A. B. de C. V.
Opinions on the Financial Statements and Internal Control over Financial Reporting
We have audited the accompanying consolidated statements of financial position of Grupo Aeroportuario del Sureste, S. A. B. de C. V. and its subsidiaries (the “Company”) as of December 31, 2025 and 2024, and the related consolidated statements of comprehensive income, changes in stockholders’ equity and cash flows for each of the three years in the period ended December 31, 2025, including the related notes (collectively referred to as the “consolidated financial statements”). We also have audited the Company’s internal control over financial reporting as of December 31, 2025, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of December 31, 2025 and 2024, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2025 in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2025, based on criteria established in Internal Control - Integrated Framework (2013) issued by the COSO.
Basis for Opinions
The Company’s management is responsible for these consolidated financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in Management’s Annual Report on Internal Control Over Financial Reporting appearing under Item 15. Our responsibility is to express opinions on the Company’s consolidated financial statements and on the Company’s internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud, and whether effective internal control over financial reporting was maintained in all material respects.
Our audits of the consolidated financial statements included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.
As described in Management’s Annual Report on Internal Control Over Financial Reporting, management has excluded ASUR US Commercial Airports, LLC (“AUSCA”) from its assessment of internal control over financial reporting as of December 31, 2025, because it was acquired by the Company in a purchase business combination during 2025. We have also excluded AUSCA from our audit of internal control over financial reporting. AUSCA is a wholly-owned subsidiary whose total assets and total revenues excluded from management’s assessment and our audit of internal control over financial reporting represent 16% and less than 1%, respectively, of the related consolidated financial statement amounts as of and for the year ended December 31, 2025.
F-1
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the consolidated financial statements that were communicated or required to be communicated to the audit committee and that (i) relate to accounts or disclosures that are material to the consolidated financial statements and (ii) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
Regulated Revenues - Compliance with the Price Regulation Maximum Rate Stated in the Mexican Concession Agreements
As described in Notes 3, 20 and 21 to the consolidated financial statements, the Company recognized total regulated revenues for the year ended December 31, 2025 of Ps.14,680 million, which was derived from airports operated in Mexico. Revenue is measured based on the consideration specified in the tariff regulating system applicable to airports in Mexico for each performance obligation identified. As disclosed by management, the system of price regulation applicable to the Company’s Mexican airports establishes an annual maximum rate for each airport for each year through December 31, 2025, which is the maximum annual amount of revenues per workload unit (equal to one passenger or 100 kg (220 pounds) of cargo) that the Company may earn at each airport from services subject to price regulation. If the maximum annual rate is exceeded, the government authorities could revoke one or more of the Company’s airport concessions in Mexico. Management monitors and adjusts its income on a regular basis in order for its annual invoicing not to exceed the maximum rate limits at each of the airports operated by the Company in Mexico. Determining whether revenues are in excess of the maximum rates established in the concession is complex and management must obtain specific information, such as passenger traffic and cargo statistics, as well as inputs such as the National Producer Price Index (excluding oil), authorized rates for airport services and the Rate for Airport Use published by the Mexican regulator.
The principal considerations for our determination that performing procedures relating to compliance with the price regulation maximum rate stated in the Mexican concession agreements is a critical audit matter are the significant auditor effort in performing procedures and evaluating the inputs related to the passenger traffic and cargo statistics, authorized rates for airport services and the Rate for Airport Use used by management in determining compliance with the maximum rate limit for each airport in Mexico.
F-2
Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the consolidated financial statements. These procedures included testing the effectiveness of controls relating to the revenue recognition process for passenger rates at the Company’s Mexican airports, including controls over the maximum rate determination and ongoing monitoring of revenues for compliance with the price regulation. These procedures also included, among others (i) testing management’s process for determining the Company’s compliance with the maximum annual rate limit for each airport in Mexico, and (ii) evaluating the reasonableness of the inputs related to the passenger traffic and cargo statistics, authorized rates for airport services and the Rate for Airport Use. Evaluating the inputs related to passenger traffic and cargo statistics involved evaluating whether the data used by management was reasonable considering consistency with evidence provided by the airlines in the inbound and outbound manifests. Evaluating the inputs related to the authorized rates for airport services and the Rate for Airport Use involved evaluating whether the data used by management was reasonable by comparing the rates to the rates published by the Mexican regulator.
Acquisition of URW Airports, LLC (ASUR Airports LLC)
As described in Note 1 to the consolidated financial statements, on December 11, 2025, ASUR US Commercial Airports, LLC, a subsidiary of the Company, acquired 100% of the equity interests in ASUR Airports LLC, an entity that holds the rights to develop and operate retail stores and food and beverage concessions in three airports in the United States of America. The acquisition was completed for total consideration of $5,627 million. As a result, this business combination was recorded by allocating the fair value to the total assets acquired and liabilities assumed, based on their fair values determined at the acquisition date. The excess of the acquisition cost over the net fair values of the acquired assets and assumed liabilities has been recorded as goodwill. The fair values of the assets acquired, liabilities assumed, non-controlling interest and goodwill were $13,619 million, $8,599 million, $65 million and $672 million, respectively.
The principal considerations for our determination that performing procedures relating to the Acquisition of URW Airports, primarily related to goodwill and investment properties is a critical audit matter were the significant auditor effort in performing procedures because a high degree of subjective auditor judgment was required to evaluate audit evidence related to the methods, models, and key assumptions used by management to develop the fair value estimates arising from the acquisition and resulting in the recognition of goodwill and investment properties.
Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the consolidated financial statements. These procedures included testing the effectiveness of controls relating to model and method and key assumptions. The procedures also included, among others, (i) evaluating the model and method used by the management in conjunction with the involvement of valuation professionals with specialized skills and knowledge to assist in assessing the suitability of the valuation models (ii) comparing the revenue growth and expense growth percentages used with historical data trends.; and (iii) comparing the discount rate used by the Company with recognized market rates for the particular industry.
/s/PricewaterhouseCoopers, S. C. |
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/s/C. P.C. Antonio Nivón Trejo |
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Audit Partner |
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Mexico City, Mexico |
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April 16, 2026 |
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We have served as the Company’s auditor since 1998.
F-3
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Consolidated Statements of Financial Position
December 31, 2024 and 2025
Thousands of Mexican pesos
|
|
December 31, |
||||
|
|
2024 |
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2025 |
||
Assets |
|
|
|
|
|
|
CURRENT ASSETS: |
|
|
|
|
|
|
Cash and cash equivalents (Note 5) |
|
Ps. |
20,083,457 |
|
Ps. |
11,116,335 |
Restricted cash (Note 5.1) |
|
|
2,043,625 |
|
|
2,041,027 |
Accounts receivable - Net (Note 6.1) |
|
|
2,804,341 |
|
|
2,562,309 |
Receivable from third parties |
|
|
100,696 |
|
|
100,696 |
Recoverable income taxes (Note 15 b) |
|
|
110,327 |
|
|
1,112,994 |
Creditable value added tax |
|
|
107,223 |
|
|
160,132 |
Inventory |
|
|
58,220 |
|
|
93,237 |
Other assets |
|
|
348,122 |
|
|
691,057 |
Total current assets |
|
|
25,656,011 |
|
|
17,877,787 |
NON-CURRENT ASSETS: |
|
|
|
|
|
|
Investment in financial instruments (Note 6.3) |
|
|
1,537,688 |
|
|
— |
Land, furniture and equipment - Net (Note 7) |
|
|
268,450 |
|
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303,068 |
Invesment property - Net (Nota 8 and 10) |
|
|
— |
|
|
12,758,949 |
Intangible assets, airport concessions and goodwill - Net (Note 9) |
|
|
55,886,163 |
|
|
58,022,949 |
Investment accounted trough the equity method (Note 19.2.e) |
|
|
288,440 |
|
|
283,108 |
Total assets |
|
Ps. |
83,636,752 |
|
Ps. |
89,245,861 |
Liabilities and Stockholders’ Equity |
|
|
|
|
|
|
CURRENT LIABILITIES: |
|
|
|
|
|
|
Bank loans (Note 12) |
|
Ps. |
687,716 |
|
Ps. |
220,356 |
Short term debt (Note 13) |
|
|
443,814 |
|
|
405,494 |
Lease liabilities (Note 10) |
|
|
22,496 |
|
|
1,394,981 |
Income tax payable |
|
|
1,821,426 |
|
|
423,644 |
Accounts payable and accrued expenses (Note 11) |
|
|
2,911,554 |
|
|
3,458,705 |
Total current liabilities |
|
|
5,887,006 |
|
|
5,903,180 |
NON-CURRENT LIABILITIES: |
|
|
|
|
|
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Bank loans (Note 12) |
|
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2,163,853 |
|
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18,396,343 |
Long-term debt (Note 13) |
|
|
10,064,073 |
|
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8,464,370 |
Lease liabilities (Note 10) |
|
|
— |
|
|
6,720,103 |
Deferred income tax (Note 15 a) |
|
|
3,852,813 |
|
|
3,278,190 |
Employee benefits obligations |
|
|
56,382 |
|
|
77,309 |
Total liabilities |
|
|
22,024,127 |
|
|
42,839,495 |
STOCKHOLDERS’ EQUITY (Note 14): |
|
|
|
|
|
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Capital stock |
|
|
7,767,276 |
|
|
7,767,276 |
Capital reserves |
|
|
25,733,425 |
|
|
2,542,227 |
Other comprehensive income |
|
|
391,485 |
|
|
(788,686) |
Retained earnings |
|
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20,320,736 |
|
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29,987,071 |
Controlling interest |
|
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54,212,922 |
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39,507,888 |
Non-Controlling interest |
|
|
7,399,703 |
|
|
6,898,478 |
Total stockholders’ equity |
|
|
61,612,625 |
|
|
46,406,366 |
Total liabilities and stockholders’ equity |
|
Ps. |
83,636,752 |
|
Ps. |
89,245,861 |
The accompanying notes are an integral part of these consolidated financial statements.
F-4
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Consolidated Statements of Comprehensive Income
For the periods ended on December 31, 2023, 2024 and 2025
Thousands of Mexican pesos, except earnings per share
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For the period ended December 31, |
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|
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2023 |
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2024 |
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2025 |
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Revenue (Notes 3, and 21.1): |
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|
|
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Aeronautical services |
|
Ps. |
15,223,096 |
|
Ps. |
18,589,161 |
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Ps. |
19,387,860 |
Non-aeronautical services |
|
|
9,295,915 |
|
|
9,895,327 |
|
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10,499,263 |
Construction services (Note 3.1.3) |
|
|
1,302,633 |
|
|
2,848,299 |
|
|
7,350,308 |
Total revenue |
|
|
25,821,644 |
|
|
31,332,787 |
|
|
37,237,431 |
Operating costs and expenses (Note 4): |
|
|
|
|
|
|
|
|
|
Cost of aeronautical and non-aeronautical services |
|
|
8,956,286 |
|
|
10,645,044 |
|
|
12,547,191 |
Cost of construction services |
|
|
1,302,633 |
|
|
2,848,299 |
|
|
7,350,308 |
Administrative expenses |
|
|
319,200 |
|
|
319,638 |
|
|
346,047 |
Total operating costs and expenses |
|
|
10,578,119 |
|
|
13,812,981 |
|
|
20,243,546 |
|
|
|
|
|
|
|
|
|
|
Operating profit |
|
|
15,243,525 |
|
|
17,519,806 |
|
|
16,993,885 |
Interest income |
|
|
1,349,317 |
|
|
1,615,065 |
|
|
1,440,338 |
Interest expense |
|
|
(1,125,862) |
|
|
(826,708) |
|
|
(1,535,163) |
Exchange income on foreign currency |
|
|
771,746 |
|
|
2,604,447 |
|
|
965,070 |
Exchange loss on foreign currency |
|
|
(1,608,954) |
|
|
(531,957) |
|
|
(2,899,855) |
|
|
|
(613,753) |
|
|
2,860,847 |
|
|
(2,029,610) |
Share of loss of the invesment accounted trought the equity method (Note 19.2.e) |
|
|
(9,685) |
|
|
(7,760) |
|
|
(5,333) |
Net income before income taxes |
|
|
14,620,087 |
|
|
20,372,893 |
|
|
14,958,942 |
Income taxes (Note 15 a): |
|
|
|
|
|
|
|
|
|
Income tax |
|
|
3,944,143 |
|
|
6,342,455 |
|
|
4,034,245 |
Net income for the year |
|
Ps. |
10,675,944 |
|
Ps. |
14,030,438 |
|
Ps. |
10,924,697 |
Net income for the year attributable to: |
|
|
|
|
|
|
|
|
|
Controlling interest |
|
Ps. |
10,203,713 |
|
Ps. |
13,551,429 |
|
Ps. |
10,488,903 |
Non-Controlling interest |
|
|
472,231 |
|
|
479,009 |
|
|
435,794 |
|
|
Ps. |
10,675,944 |
|
Ps. |
14,030,438 |
|
Ps. |
10,924,697 |
Other comprehensive income: |
|
|
|
|
|
|
|
|
|
Items that will not be reclassified to income for the period: |
|
|
|
|
|
|
|
|
|
Remeasurement of labor obligations |
|
Ps. |
1,644 |
|
Ps. |
(17,233) |
|
Ps. |
(13,766) |
Items that might be reclassified to income for the period: |
|
|
|
|
|
|
|
|
|
Effect of the foreign currency translation in subsidiaries |
|
|
(1,530,746) |
|
|
2,818,418 |
|
|
(1,775,991) |
Total comprehensive income for the year |
|
Ps. |
9,146,842 |
|
Ps. |
16,831,623 |
|
Ps. |
9,134,940 |
Comprehensive income for the year attributable to: |
|
|
|
|
|
|
|
|
|
Controlling interest |
|
Ps. |
9,303,574 |
|
Ps. |
15,545,374 |
|
Ps. |
9,294,966 |
Non-Controlling interest |
|
|
(156,732) |
|
|
1,286,249 |
|
|
(160,026) |
Total comprehensive income for the year |
|
Ps. |
9,146,842 |
|
Ps. |
16,831,623 |
|
Ps. |
9,134,940 |
Basic and diluted earnings per share expressed in Mexican Pesos (Note 19.18) |
|
Ps. |
34.01 |
|
Ps. |
45.17 |
|
Ps. |
34.96 |
The accompanying notes are an integral part of these consolidated financial statements.
F-5
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Consolidated Statement of Changes in Stockholders’ Equity
December 31, 2023, 2024 and 2025
Thousands of Mexican pesos except dividend per share
|
|
|
|
|
Capital reserves |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
|
|
|
|
|
|
Reserve for |
|
Other |
|
|
|
|
|
|
|
Total |
|||
|
|
Capital |
|
Legal |
|
repurchase |
|
comprehensive |
|
Retained |
|
Non-controlling |
|
stockholders’ |
|||||||
|
|
stock |
|
reserve |
|
of shares |
|
income |
|
earnings |
|
interest |
|
equity |
|||||||
Balances at January 1,2023 |
|
Ps. |
7,767,276 |
|
Ps. |
2,285,392 |
|
Ps. |
11,554,572 |
|
Ps. |
(717,910) |
|
Ps. |
20,731,444 |
|
Ps. |
7,394,833 |
|
Ps. |
49,015,607 |
Comprehensive income: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net profit for the year |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
10,203,713 |
|
|
472,231 |
|
|
10,675,944 |
Effect of foreign currency translation in subsidiaries |
|
|
— |
|
|
— |
|
|
— |
|
|
(901,783) |
|
|
— |
|
|
(628,963) |
|
|
(1,530,746) |
Remeasurement of labor obligations |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
1,644 |
|
|
— |
|
|
1,644 |
Total comprehensive income |
|
|
— |
|
|
— |
|
|
— |
|
|
(901,783) |
|
|
10,205,357 |
|
|
(156,732) |
|
|
9,146,842 |
Transfers to legal reserve |
|
|
— |
|
|
256,835 |
|
|
— |
|
|
— |
|
|
(256,835) |
|
|
— |
|
|
— |
Aerostar’s Capital reimbursement, non-controlling interest (Note 19.2) |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(102,066) |
|
|
(102,066) |
Aerostar dividend paid, non-controlling interest (Note 19.2) Transactions with shareholders: |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(490,185) |
|
|
(490,185) |
Ordinary and extraordinary dividends paid on May 31, and November 29, 2023 (Ps.9.93 and Ps.10.00 per share) (Note 14) |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(5,979,000) |
|
|
— |
|
|
(5,979,000) |
Balances at December 31, 2023 |
|
Ps. |
7,767,276 |
|
Ps. |
2,542,227 |
|
Ps. |
11,554,572 |
|
Ps. |
(1,619,693) |
|
Ps. |
24,700,966 |
|
Ps. |
6,645,850 |
|
Ps. |
51,591,198 |
Comprehensive income: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net profit for the year |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
13,551,429 |
|
|
479,009 |
|
|
14,030,438 |
Effect of foreign currency translation in subsidiaries |
|
|
— |
|
|
— |
|
|
— |
|
|
2,011,178 |
|
|
— |
|
|
807,240 |
|
|
2,818,418 |
Remeasurement of labor obligations |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(17,233) |
|
|
— |
|
|
(17,233) |
Total comprehensive income |
|
|
— |
|
|
— |
|
|
— |
|
|
2,011,178 |
|
|
13,534,196 |
|
|
1,286,249 |
|
|
16,831,623 |
Increase in reserve for repurchase of shares (Note 14) |
|
|
— |
|
|
— |
|
|
11,636,626 |
|
|
— |
|
|
(11,636,626) |
|
|
— |
|
|
— |
Aerostar’s Capital reimbursement, non-controlling interest (Note 19.2) |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(102,067) |
|
|
(102,067) |
Aerostar dividend paid, non-controlling interest (Note 19.2) |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(430,329) |
|
|
(430,329) |
Ordinary and extraordinary dividends paid on May 29, and June 26, 2024 (Ps.10.93 and Ps.10.00 per share) (Note 14) |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(6,277,800) |
|
|
— |
|
|
(6,277,800) |
Balances at December 31, 2024 |
|
Ps. |
7,767,276 |
|
Ps. |
2,542,227 |
|
Ps. |
23,191,198 |
|
Ps. |
391,485 |
|
Ps. |
20,320,736 |
|
Ps. |
7,399,703 |
|
Ps. |
61,612,625 |
Comprehensive income: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net profit for the year |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
10,488,903 |
|
|
435,794 |
|
|
10,924,697 |
Effect of foreign currency translation in subsidiaries |
|
|
— |
|
|
— |
|
|
— |
|
|
(1,180,171) |
|
|
— |
|
|
(595,820) |
|
|
(1,775,991) |
Remeasurement of labor obligations |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(13,766) |
|
|
— |
|
|
(13,766) |
Total comprehensive income |
|
|
— |
|
|
— |
|
|
— |
|
|
(1,180,171) |
|
|
10,475,137 |
|
|
(160,026) |
|
|
9,134,940 |
Transactions with shareholders in their capacity as shareholders: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Application of the reserve for repurchase of shares (Note 14) |
|
|
— |
|
|
— |
|
|
(23,191,198) |
|
|
— |
|
|
23,191,198 |
|
|
— |
|
|
— |
Aerostar’s Capital reimbursement, non-controlling interest (Note 19.2) |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(105,987) |
|
|
(105,987) |
Aerostar dividend paid, non-controlling interest (Note 19.2) |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(235,212) |
|
|
(235,212) |
Ordinary dividends paid on May 29, 2025 and extraordinay dividends paid on September 30, and November 27, 2025 ($50.0, $15.0 and $15.0 per share) (Note 14) |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(24,000,000) |
|
|
— |
|
|
(24,000,000) |
Balances at December 31, 2025 |
|
Ps. |
7,767,276 |
|
Ps. |
2,542,227 |
|
Ps. |
— |
|
Ps. |
(788,686) |
|
Ps. |
29,987,071 |
|
Ps. |
6,898,478 |
|
Ps. |
46,406,366 |
The accompanying notes are an integral part of these consolidated financial statements.
F-6
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Consolidated Statements of Cash Flows
For the periods ended on December 31, 2023, 2024 and 2025
Thousands of Mexican pesos
|
|
For the period ended December 31, |
|||||||
|
|
2023 |
|
2024 |
|
2025 |
|||
Operating activities |
|
|
|
|
|
|
|
|
|
Income before income taxes |
|
Ps. |
14,620,087 |
|
Ps. |
20,372,893 |
|
Ps. |
14,958,942 |
Adjustments for: |
|
|
|
|
|
|
|
|
|
Share of loss of the investment accounted by the equity method |
|
|
9,685 |
|
|
7,760 |
|
|
5,333 |
Depreciation and amortization (Notes 4, 7 and 9) |
|
|
2,069,157 |
|
|
2,322,984 |
|
|
3,260,815 |
Interest income |
|
|
(1,349,317) |
|
|
(1,615,065) |
|
|
(1,440,337) |
Interest expense |
|
|
1,125,862 |
|
|
826,708 |
|
|
1,564,109 |
Exchange loss |
|
|
1,608,954 |
|
|
531,957 |
|
|
1,051,992 |
Exchange gain |
|
|
(771,746) |
|
|
(2,320,904) |
|
|
(284,877) |
Working capital variations: |
|
|
|
|
|
|
|
|
|
Accounts receivable (Note 6.1) |
|
|
161,248 |
|
|
(427,670) |
|
|
359,431 |
Recoverable taxes and other current assets |
|
|
(23,262) |
|
|
(560,929) |
|
|
1,154,447 |
Trade accounts payable and acrrued expenses (Note 11) |
|
|
(240,795) |
|
|
923,931 |
|
|
(1,661,871) |
|
|
|
17,209,873 |
|
|
20,061,665 |
|
|
18,967,984 |
Income taxes paid (Note 15) |
|
|
(3,764,682) |
|
|
(4,490,624) |
|
|
(6,619,371) |
Net cash flows generated from operating activities |
|
|
13,445,191 |
|
|
15,571,041 |
|
|
12,348,613 |
Investing activities |
|
|
|
|
|
|
|
|
|
Payment for Acquisition of ASUR Airports Subsidiary, net of cash |
|
|
— |
|
|
— |
|
|
(5,112,151) |
Improvements to assets under concession and acquisition of furniture and equipment (Note 9) |
|
|
(1,371,000) |
|
|
(4,394,462) |
|
|
(7,807,852) |
Investment accounted by the equity method (Note 19.2e) |
|
|
(305,885) |
|
|
— |
|
|
— |
Reimbursement of investment in joint venture |
|
|
6,802 |
|
|
— |
|
|
— |
Loans granted |
|
|
47,922 |
|
|
— |
|
|
— |
Interest received |
|
|
1,202,286 |
|
|
1,483,246 |
|
|
1,439,022 |
Restricted cash (Note 5.1) |
|
|
(210,594) |
|
|
(123,394) |
|
|
(168,571) |
Investment in financial instruments (Note 6.3) |
|
|
(1,818,949) |
|
|
281,261 |
|
|
1,537,688 |
Net cash flows used in investing activities |
|
|
(2,449,418) |
|
|
(2,753,349) |
|
|
(10,111,864) |
Financing activities |
|
|
|
|
|
|
|
|
|
Proceeds from bank loan (Note 12) |
|
|
— |
|
|
— |
|
|
21,065,000 |
Restricted cash (Note 5.1) |
|
|
15,922 |
|
|
(304,831) |
|
|
171,169 |
Bank loans paid (Note 12) |
|
|
(1,475,000) |
|
|
(538,712) |
|
|
(5,175,000) |
Lease payments - Principal portion |
|
|
(5,186) |
|
|
(5,335) |
|
|
(5,709) |
Long-term debt paid (Note 13) |
|
|
(200,535) |
|
|
(224,914) |
|
|
(263,130) |
Interest paid (Note 12) |
|
|
(1,067,106) |
|
|
(938,155) |
|
|
(1,371,116) |
Loan origination fees (Note 12) |
|
|
— |
|
|
— |
|
|
(173,947) |
Capital reduction (non-controlling interest) and dividends paid (non-controlling interest) (Note 19.2) |
|
|
(605,500) |
|
|
(628,609) |
|
|
(366,684) |
Dividends paid (Note 14) |
|
|
(5,979,000) |
|
|
(6,277,800) |
|
|
(24,000,000) |
Net cash flows used from financing activities |
|
|
(9,316,405) |
|
|
(8,918,356) |
|
|
(10,119,417) |
Increase (decrease) in cash and cash equivalents |
|
|
1,679,368 |
|
|
3,899,336 |
|
|
(7,882,668) |
Cash and cash equivalents at the beginning of the year |
|
|
13,174,991 |
|
|
13,872,897 |
|
|
20,083,457 |
Exchange (loss) profit on cash and cash equivalents |
|
|
(981,462) |
|
|
2,311,224 |
|
|
(1,084,454) |
Cash and cash equivalents at the end of the year |
|
Ps. |
13,872,897 |
|
Ps. |
20,083,457 |
|
Ps. |
11,116,335 |
The accompanying notes are an integral part of these consolidated financial statements.
F-7
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Figures expressed in thousands of Mexican pesos (Ps.), thousands of US dollars (USD) and thounsands of Colombian pesos (COP), except for number of shares, earnings per share and exchange rates
Note 1 - Overview:
Grupo Aeroportuario del Sureste, S. A. B. de C. V. (ASUR or the Company) is a Mexican company that was incorporated in April 1998 as a wholly-owned entity of the federal public government to administer, operate, maintain and exploit nine airports in the Southeast of Mexico. The nine airports are located in the following cities: Cancún, Cozumel, Mérida, Huatulco, Oaxaca, Veracruz, Villahermosa, Tapachula and Minatitlán. ASUR and its subsidiaries are collectively referred to as “the Company”, “ASUR” or “the Group”.
Aeropuerto de Cancun, S. A. de C. V. (Cancún Airport) has more than 95% stake in the following subsidiaries: Caribbean Logistic, S. A. de C. V., Cargo RF, S. A. de C. V and Cancún Airport Services, S. A. de C. V., companies providing storage services, handling services, warehousing and custody of foreign trade merchandise and the related to the premises inspected at airports concessioned to third parties, as well as Cancún Airport Services, S. A. de C. V., whose main activity is to establish and operate shops, establishments and stores for the sale of all kinds of products.
On June 1998, the Mexican Department of Communications and Transportation (SCT by its Spanish acronym) granted Grupo Aeroporturario del Sureste, S. A. B. de C. V. (the Company) the nine concessions to administrate, operate, exploit and develop the nine Southeast airports over a period of 50 years commencing on November 1, 1998. Pursuant to the Mexican General Law of National Assets, all the land, furniture and permanent fixed assets located in the airports are the property of the Mexican federal government. The term of the concessions may be extended by the parties under certain circumstances, in accordance with Article 15 of the Airports Law that establishes, among other things that 1) it had fulfilled the conditions set out in the respective title, 2) if requested before the five years of the concession’s validity begun and 3) accept the new conditions.
Through its subsidiary Cancún Airport, the Company holds 60% in Aerostar Airport Holding, LLC (Aerostar), which operates and manages Aeropuerto Internacional Luis Muñoz Marin (LMM Airport) in San Juan de Puerto Rico, and 100% the shares of Sociedad Operadora de Aeropuertos Centro Norte, S. A. (Airplan), domiciled in the city of Medellín, Colombia, who operates and administrate through a single concession (contract 8000011-OK) the following six Airports: Airport Olaya Herrera Medellín, Airport José María Córdoba from Rionegro, Airport El Caraño from Quibdó, Airport Los Garzones from Montería, Airport Antonio Roldán Betancourt from Carepa and Airport Las Brujas in Corozal.
At December 31, 2023, the Companyʼs outstanding capital stock was held by the investing public (58.02%) and has been listed in New York (NYSE) and México (BMV), Inversiones y Técnicas Aeroportuarias, S. A. P. I. de C. V. (ITA) 7.65%, CHPAF Holdings, S. A. P. I. de C. V. 20.67%, Inversiones Productivas Kierke, S. A. de C. V. 12.33% and Grupo ADO, S. A. de C. V. 1.33%. Shareholding is divided amongst different shareholders, without there being an individual or a particular group that controls the Company directly.
At December 31, 2024 and 2025, the Companyʼs outstanding capital stock was held by the investing public (57.02% and 49.36%, respectively) listed in New York (NYSE) and México (BMV), Inversiones y Técnicas Aeroportuarias, S. A. P. I. de C. V. (ITA) (7.65%) in both years, CHPAF Holdings, S. A. P. I. de C. V. 21.67%, in both years, Inversiones Productivas Kierke, S. A. de C. V. 12.33% in both years, and Grupo ADO, S. A. de C. V. 1.33% in both years, and BlackRock, Inc. 7.66% in 2025. Shareholding is divided amongst different shareholders, without there being an individual or a particular group that controls the Company directly.
1.1) Relevant event
Acquisition of ASUR Airports LLC
On December 11, 2025, our subsidiary ASUR US Commercial Airports LLC (ASUR US Commercial), a commercial company incorporated on July 14, 2025, organized under the laws of the State of Delaware, United States of America (and also a subsidiary of Cancún Airport), entered into an investment agreement to acquire the shares of URW Airports LLC (“URW Airports”), which was incorporated on February 13, 1998 in the State of Delaware and is headquartered in Los Angeles, California.
F-8
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
ASUR Airports LLC (formerly URW Airports) and its subsidiaries hold the rights for the development and operation of retail stores and food & beverage concessions in certain terminals of three U.S. airports: Terminal 5 of Chicago O’Hare International Airport (“ORD”); Terminals 1, 2, 3, and 6, as well as the Tom Bradley International Terminal and the Bradley West Gates Concourse of Los Angeles International Airport (“LAX”); and Terminals 1 and 8 of New York John F. Kennedy International Airport (JFK T1 and T8). ASUR Airports, LLC (ASUR Airports) holds a 100% equity interest in its subsidiaries ASUR Airports JFK T1, LLC and ASUR Airports JFK T8, LLC, which in turn hold an 81.38% equity interest in their subsidiary JFK T8 Innovation Partners, LLC, with the remaining 18.62% equity interest held by Phoenix Infrastructure Group Investments JFK T8, LLC.
In accordance with International Financial Reporting Standard 3 “Business Combinations” (IFRS 3), the acquisition is considered a business combination and, therefore, has been recorded using the purchase method established in IFRS 3. The acquisition was recorded by allocating the total of the assets acquired and liabilities assumed, based on the fair values determined at the acquisition date. The excess of the acquisition cost over the net fair values of the assets acquired and liabilities assumed has been recorded as goodwill.
The transaction resulted in the recognition of goodwill of Ps.672,538 as of the business combination date. The goodwill associated with this business combination is not deductible for income tax purposes. This goodwill is comprised of the fair value of investment properties and future economic benefits associated with the management of commercial spaces, which do not meet the identifiability criteria to be recognized separately and, therefore, remain included in goodwill.
The fair value of accounts and notes receivable considered in the combination is similar to their contractual value, and the amounts are not expected to present collectability issues.
The lease liability was determined based on the requirements of IFRS 16, considering the fixed and variable payments to be made to the LAX and JFK airport authorities and calculating the discounted value of the remaining payments, as if the lease were new. The right-of-use asset is valued at the same amount, adjusted for any favorable or unfavorable lease terms compared to market conditions. This value was also recognized as a right-of-use asset, which, following the guidelines in IAS 40, will be considered investment property and subsequently measured in accordance with that standard.
For the determination of the fair value of the non-controlling interest, comparable market values were used (based on a sample of comparable public companies). The most relevant assumptions considered were revenue multiples and result before interests, taxes, depreciation, amortizaction multiples, adjusted for the net control premium.
The following table summarizes the consideration related to ASUR Airports as of the business combination date:
Consideration paid on December 11, 2025 |
|
Ps. |
5,627,122 |
F-9
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The following presents the provisional allocation of the purchase price over the net assets acquired of ASUR Airports, LLC (formerly URW Airports) from the business combination at the acquisition date.
|
|
Fair |
|
|
|
Value |
|
Assets |
|
|
|
CURRENT: |
|
|
|
Cash and cash equivalents |
|
Ps. |
514,971 |
Other current assets |
|
|
314,647 |
CURRENT ASSETS |
|
|
829,618 |
|
|
|
|
NON-CURRENT: |
|
|
|
Invesment property |
|
|
12,789,029 |
Other assets - net |
|
|
460 |
NON-CURRENT ASSETS |
|
|
12,789,489 |
Total assets |
|
Ps. |
13,619,107 |
|
|
|
|
Liabilities |
|
|
|
CURRENT: |
|
|
|
Lease liabilities |
|
Ps. |
1,381,804 |
Other liabilities |
|
|
379,311 |
CURRENT LIABILITIES |
|
|
1,761,115 |
|
|
|
|
NON-CURRENT: |
|
|
|
Lease liabilities |
|
|
6,735,383 |
Other non current liabilities |
|
|
102,715 |
NON-CURRENT LIABILITIES |
|
|
6,838,098 |
Total liabilities |
|
Ps. |
8,599,213 |
|
|
|
|
Net assets acquired in business Combination |
|
Ps. |
5,019,894 |
Non-controlling interest |
|
|
65,310 |
Goodwill at acquisition date (Note 9.1) |
|
Ps. |
672,538 |
The main characteristics of the fair value adjustments are described below:
Item |
|
Concept |
|
Methodology |
Tangible Assets: |
|
|
|
|
|
|
|
|
|
Investment Properties. |
|
Development and management rights of commercial premises |
|
Revenue approach (Discounted cash flows method) |
|
|
|
|
|
Right-of-use assets |
|
Rights from lease contracts |
|
Revenue approach (Discounte cash flows method) |
|
|
|
|
|
Liabilities: Lease obligations |
|
Short-term and long-term lease liabilities |
|
Fixed and variable payments in substance fixed discounted using an incremental rate |
F-10
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The projections that served as the basis for applying the methodologies described above were based on the business plans approved by the Management of ASUR Airports, LLC at the time of the acquisition, which subsequently served as the basis for the impairment analysis performed by Management as of the date of the consolidated financial statements.
The goodwill recognized by the Company represents non-separable assets arising from the growth potential and development opportunities of ASUR Airports, LLC. No contingent liabilities have arisen from this acquisition that need to be recorded; nor are there any contingent consideration agreements.
The acquisition costs amounted to approximately Ps.91,000 and were recorded in the income statement under administrative expenses.
Measurement period
As of December 31, 2025, and because sufficient information was not available at the acquisition date to measure the provisional allocation of the purchase price, the Company determined and recognized provisional amounts until the necessary information becomes available. Consequently, the amounts recognized for these items are provisional and may change within the measurement period (which does not exceed one year from the acquisition date) as additional information becomes available regarding facts and circumstances existing at the acquisition date.
The accounting treatment of the business acquisition remains provisional, as the Company is in the process of obtaining sufficient information to determine the corresponding tax bases, primarily regarding deferred taxes associated with the investment properties. Consequently, the amount of deferred tax will be assessed once the relevant information is available within the measurement period permitted by IFRS 3. This adjustment will be recognized retrospectively against goodwill if it reflects information obtained about the facts and circumstances existing at the acquisition date.
Pursuant to the purchase agreement between URW Airports (seller) and ASUR US Commercial (buyer), the buyer may request an adjustment to working capital from the seller. This adjustment would impact the transaction price, and the buyer would be required to pay or receive the amount determined by this adjustment, based on evidence available 90 days after the closing date of the transaction. Any adjustment to the measurement period will be recognized retrospectively as if it had been recognized at the acquisition date and will result in corresponding adjustments to goodwill.
Pro Forma Financial Information ASUR Airports, LLC (formerly URW Airports):
If ASUR Airports, LLC had been consolidated as of January 1, 2025, the consolidated statement of comprehensive income would have included revenues from ordinary activities of Ps.2,063,865 and net income of Ps.711,233.
1.2. Sustainability and Climate
In 2022, the Sustainability Committee was created, chaired by an independent director who supports the Board in ESG-related decisions. Its functions include: overseeing the sustainability strategy, reviewing and recommending targets, monitoring mitigation/adaptation initiatives, and reviewing the sustainability report prior to publication.
The Company carried out the identification of priority risks mainly associated with the interaction of airport operations with the environmental and regulatory context. These include risks linked to ecosystem pressures that could result in operational disruptions, as well as risks of non-compliance with applicable environmental regulations that could lead to sanctions, operational restrictions, or impacts on concessions.
Although these risks are considered relevant from a sustainability and business management perspective, none of them have materialized to date with a significant financial impact on the Company. Additionally, relevant issues have been identified from a regulatory and operational perspective which, although not considered financially material within the evaluated horizon, are continuously monitored as part of the Company’s risk management system.
F-11
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Risks. The Company identified extreme heat as the main physical risk due to its impact on energy consumption associated with air conditioning systems. Hurricanes also represent a relevant risk for specific airports, particularly Cancún and San Juan. Regarding transition risks, priority risks include the increase in airlines’ operating costs, with potential impact on passenger demand, as well as higher electricity costs and the obligation to integrate renewable energy.
The Company evaluated the measures and actions implemented regarding sustainability and climate change and determined that their financial effects are already incorporated in the accounting estimates and judgments reflected in the financial statements, with no additional material impacts identified.
Note 2 - Segment information:
The Company is a Mexican entity that was incorporated in April 1998 as a wholly-owned entity of the federal public government to administrate, operate, maintain and develop nine airports in the Southeast of Mexico. The nine airports are located in the following cities: Cancun, Cozumel, Mérida, Huatulco, Oaxaca, Veracruz, Villahermosa, Tapachula and Minatitlán.
In addition, Cancun Airport holds a 100% of the interest in the following subsidiaries: Caribbean Logistic, S. A. de C. V. and Cargo RF, S. A. de C. V, companies providing storage services, handling services, warehousing and custody of foreign trade merchandise and the related to the premises inspected at airports concessioned to third parties, as well as Cancun Airport Services, S. A. de C. V., whose main activity is to establish and operate shops, for the sale of all type of products, ASUR Dominicana LLC, a limited liability company incorporated under the laws of Delaware, with the purpose of developing and building an international airport in Bávaro, Dominican Republic. ASUR Dominicana LLC ASUR maintains a 25% associate interest in the company Aeropuerto Internacional de Bávaro AIB, S.A.S.
As mentioned in Note 1, the Company acquired the subsidiary ASUR Airports (URW Airports) with a 100% equity interest, and an 81.38% equity interest in one of its subsidiaries, JFK T8 Innovation Partners, LLC. The Company controls through its equity interest 60% in Aerostar and 100% in Airplan.
F-12
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
See information by segments is shown as follows.
Year ended on |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Holding & |
|
|
|
|
Consolidation |
|
|
|
||
December 31, 2023 |
|
Cancún |
|
Aerostar (*) |
|
Airplan (**) |
|
Mérida |
|
Villahermosa |
|
Services |
|
Other |
|
adjustments |
|
Total |
|||||||||
Revenue from contracts with clients: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical revenue |
|
Ps. |
8,167,803 |
|
Ps. |
2,029,890 |
|
Ps. |
1,945,637 |
|
Ps. |
1,066,368 |
|
Ps. |
404,370 |
|
|
— |
|
Ps. |
1,609,028 |
|
|
— |
|
Ps. |
15,223,096 |
Non-aeronautical revenue |
|
|
6,373,826 |
|
|
1,729,919 |
|
|
659,237 |
|
|
232,536 |
|
|
73,876 |
|
Ps. |
980,145 |
|
|
226,521 |
|
Ps. |
(980,145) |
|
|
9,295,915 |
Revenue for construction services |
|
|
415,669 |
|
|
414,520 |
|
|
14,539 |
|
|
64,610 |
|
|
76,389 |
|
|
— |
|
|
316,906 |
|
|
— |
|
|
1,302,633 |
Cost of aeronautical and non-aeronautical services |
|
|
(4,248,298) |
|
|
(1,482,310) |
|
|
(1,151,396) |
|
|
(446,190) |
|
|
(168,342) |
|
|
264,181 |
|
|
(634,919) |
|
|
980,145 |
|
|
(6,887,129) |
Cost of construction services |
|
|
(415,669) |
|
|
(414,520) |
|
|
(14,539) |
|
|
(64,610) |
|
|
(76,389) |
|
|
— |
|
|
(316,906) |
|
|
— |
|
|
(1,302,633) |
Operating profit |
|
|
9,610,292 |
|
|
1,629,778 |
|
|
1,084,377 |
|
|
763,302 |
|
|
263,965 |
|
|
925,105 |
|
|
966,706 |
|
|
— |
|
|
15,243,525 |
Non-current assets |
|
|
22,273,489 |
|
|
16,392,510 |
|
|
2,943,119 |
|
|
3,579,162 |
|
|
1,271,556 |
|
|
44,513,606 |
|
|
6,251,131 |
|
|
(45,615,346) |
|
|
51,609,227 |
Total assets |
|
|
31,363,171 |
|
|
19,668,032 |
|
|
5,968,440 |
|
|
4,308,637 |
|
|
1,555,737 |
|
|
45,017,265 |
|
|
8,076,488 |
|
|
(45,615,346) |
|
|
70,342,424 |
Total liabilities |
|
|
5,029,334 |
|
|
10,424,993 |
|
|
2,727,965 |
|
|
100,176 |
|
|
107,358 |
|
|
121,335 |
|
|
240,065 |
|
|
|
|
|
18,751,226 |
Improvements to assets under concession and acquisition of furniture and equipment in the period |
|
|
477,361 |
|
|
465,166 |
|
|
14,297 |
|
|
68,567 |
|
|
69,768 |
|
|
— |
|
|
275,841 |
|
|
— |
|
|
1,371,000 |
Amortization and depreciation |
|
|
(683,039) |
|
|
(647,721) |
|
|
(369,101) |
|
|
(89,412) |
|
|
(45,939) |
|
|
(21) |
|
|
(233,924) |
|
|
— |
|
|
(2,069,157) |
Revenue recognized At point in time: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical revenue |
|
|
7,149,065 |
|
|
1,428,789 |
|
|
1,890,175 |
|
|
997,651 |
|
|
376,675 |
|
|
— |
|
|
1,491,404 |
|
|
— |
|
|
13,333,759 |
Non-aeronautical revenue |
|
|
1,172,595 |
|
|
396,724 |
|
|
|
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
1,569,319 |
Total |
|
Ps. |
8,321,660 |
|
Ps. |
1,825,513 |
|
Ps. |
1,890,175 |
|
Ps. |
997,651 |
|
Ps. |
376,675 |
|
Ps. |
— |
|
Ps. |
1,491,404 |
|
Ps. |
— |
|
Ps. |
14,903,078 |
Over a period time: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical revenue |
|
|
1,018,738 |
|
|
601,101 |
|
|
55,462 |
|
|
68,717 |
|
|
27,695 |
|
|
— |
|
|
117,624 |
|
|
— |
|
|
1,889,337 |
Non-aeronautical revenue |
|
|
5,201,231 |
|
|
1,333,195 |
|
|
659,237 |
|
|
232,536 |
|
|
73,876 |
|
|
980,145 |
|
|
226,521 |
|
|
(980,145) |
|
|
7,726,596 |
Revenue for construction services |
|
|
415,669 |
|
|
414,520 |
|
|
14,539 |
|
|
64,610 |
|
|
76,389 |
|
|
— |
|
|
316,906 |
|
|
— |
|
|
1,302,633 |
Total |
|
Ps. |
6,635,638 |
|
Ps. |
2,348,816 |
|
Ps. |
729,238 |
|
Ps. |
365,863 |
|
Ps. |
177,960 |
|
Ps. |
980,145 |
|
Ps. |
661,051 |
|
Ps. |
(980,145) |
|
Ps. |
10,918,566 |
(*) Subsidiary located in Puerto Rico.
(**) Subsidiary located in Colombia.
F-13
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Year ended on |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Holding & |
|
|
|
|
Consolidation |
|
|
|
||
December 31, 2024 |
|
Cancún |
|
Aerostar (*) |
|
Airplan (**) |
|
Mérida |
|
|
Villahermosa |
|
Services |
|
Other |
|
adjustments |
|
Total |
||||||||
Revenue from contracts with clients: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical revenue |
|
Ps. |
10,414,204 |
|
Ps. |
2,208,073 |
|
Ps. |
2,465,434 |
|
Ps. |
1,122,018 |
|
Ps. |
462,282 |
|
|
— |
|
Ps. |
1,917,150 |
|
|
— |
|
Ps. |
18,589,161 |
Non-aeronautical revenue |
|
|
6,424,750 |
|
|
1,981,707 |
|
|
857,301 |
|
|
268,600 |
|
|
85,396 |
|
Ps. |
1,157,048 |
|
|
277,573 |
|
Ps. |
(1,157,048) |
|
|
9,895,327 |
Revenue for construction services |
|
|
1,488,898 |
|
|
626,195 |
|
|
25,387 |
|
|
177,339 |
|
|
88,466 |
|
|
— |
|
|
442,014 |
|
|
— |
|
|
2,848,299 |
Cost of aeronautical and non-aeronautical services |
|
|
(4,958,839) |
|
|
(1,932,670) |
|
|
(1,363,220) |
|
|
(517,221) |
|
|
(202,602) |
|
|
269,525 |
|
|
(774,081) |
|
|
1,157,048 |
|
|
(8,322,060) |
Cost of construction services |
|
|
(1,488,898) |
|
|
(626,195) |
|
|
(25,387) |
|
|
(177,339) |
|
|
(88,466) |
|
|
— |
|
|
(442,014) |
|
|
— |
|
|
(2,848,299) |
Operating profit |
|
|
11,157,227 |
|
|
1,528,467 |
|
|
1,540,947 |
|
|
728,867 |
|
|
293,650 |
|
|
1,106,922 |
|
|
1,163,726 |
|
|
— |
|
|
17,519,806 |
Non-current assets |
|
|
24,122,818 |
|
|
20,215,783 |
|
|
3,228,074 |
|
|
3,660,686 |
|
|
1,321,282 |
|
|
53,428,740 |
|
|
6,696,067 |
|
|
(54,692,709) |
|
|
57,980,741 |
Total assets |
|
|
38,646,834 |
|
|
23,562,476 |
|
|
6,792,163 |
|
|
4,328,447 |
|
|
1,657,410 |
|
|
54,291,248 |
|
|
9,050,883 |
|
|
(54,692,709) |
|
|
83,636,752 |
Total liabilities |
|
|
6,999,215 |
|
|
12,434,805 |
|
|
2,165,623 |
|
|
27,997 |
|
|
95,270 |
|
|
123,514 |
|
|
177,703 |
|
|
|
|
|
22,024,127 |
Improvements to assets under concession and acquisition of furniture and equipment in the period |
|
|
2,644,300 |
|
|
707,709 |
|
|
25,751 |
|
|
213,364 |
|
|
100,603 |
|
|
— |
|
|
702,735 |
|
|
— |
|
|
4,394,462 |
Amortization and depreciation |
|
|
(722,888) |
|
|
(728,643) |
|
|
(418,568) |
|
|
(144,530) |
|
|
(51,426) |
|
|
(13) |
|
|
(256,916) |
|
|
— |
|
|
(2,322,984) |
Revenue recognized |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At point in time: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical revenue |
|
|
9,145,275 |
|
|
1,445,579 |
|
|
2,399,113 |
|
|
1,029,896 |
|
|
423,299 |
|
|
— |
|
|
1,758,279 |
|
|
— |
|
|
16,201,441 |
Non-aeronautical revenue |
|
|
1,123,689 |
|
|
429,694 |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
1,553,383 |
Total |
|
Ps. |
10,268,964 |
|
Ps. |
1,875,273 |
|
Ps. |
2,399,113 |
|
Ps. |
1,029,896 |
|
Ps. |
423,299 |
|
Ps. |
— |
|
Ps. |
1,758,279 |
|
Ps. |
— |
|
Ps. |
17,754,824 |
Over a period time: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical revenue |
|
|
1,268,929 |
|
|
762,494 |
|
|
66,321 |
|
|
92,122 |
|
|
38,983 |
|
|
— |
|
|
158,871 |
|
|
— |
|
|
2,387,720 |
Non-aeronautical revenue |
|
|
5,301,061 |
|
|
1,552,013 |
|
|
857,301 |
|
|
268,600 |
|
|
85,396 |
|
|
1,157,048 |
|
|
277,573 |
|
|
(1,157,048) |
|
|
8,341,944 |
Revenue for construction services |
|
|
1,488,898 |
|
|
626,195 |
|
|
25,387 |
|
|
177,339 |
|
|
88,466 |
|
|
— |
|
|
442,014 |
|
|
— |
|
|
2,848,299 |
Total |
|
Ps. |
8,058,888 |
|
Ps. |
2,940,702 |
|
Ps. |
949,009 |
|
Ps. |
538,061 |
|
Ps. |
212,845 |
|
Ps. |
1,157,048 |
|
Ps. |
878,458 |
|
Ps. |
(1,157,048) |
|
Ps. |
13,577,963 |
(*) Subsidiary located in Puerto Rico.
(**) Subsidiary located in Colombia.
F-14
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Year ended on |
|
|
|
|
|
|
|
|
|
|
ASUR |
|
|
|
|
|
|
|
Holding & |
|
|
|
|
Consolidation |
|
|
|
|||
December 31, 2025 |
|
Cancún |
|
Aerostar (*) |
|
Airplan (**) |
|
Airports (***) |
|
Mérida |
|
Villahermosa |
|
Services |
|
Other |
|
adjustments |
|
Total |
||||||||||
Revenue from contracts with clients: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical revenue |
|
Ps. |
10,544,808 |
|
Ps. |
2,371,524 |
|
Ps. |
2,743,088 |
|
|
— |
|
Ps. |
1,230,316 |
|
Ps. |
468,345 |
|
|
— |
|
Ps. |
2,029,779 |
|
|
— |
|
Ps. |
19,387,860 |
Non-aeronautical revenue |
|
|
6,344,934 |
|
|
2,283,952 |
|
|
1,061,486 |
|
Ps. |
133,143 |
|
|
291,639 |
|
|
83,079 |
|
Ps. |
1,148,746 |
|
|
301,030 |
|
Ps. |
(1,148,746) |
|
|
10,499,263 |
Revenue for construction services |
|
|
4,847,755 |
|
|
769,893 |
|
|
19,284 |
|
|
— |
|
|
192,466 |
|
|
147,291 |
|
|
— |
|
|
1,373,619 |
|
|
— |
|
|
7,350,308 |
Cost of aeronautical and non-aeronautical services (***) |
|
|
(4,814,951) |
|
|
(2,260,547) |
|
|
(1,574,580) |
|
|
(137,691) |
|
|
(552,881) |
|
|
(210,262) |
|
|
(49,466) |
|
|
(834,743) |
|
|
1,148,746 |
|
|
(9,286,375) |
Cost of construction services |
|
|
(4,847,755) |
|
|
(769,893) |
|
|
(19,284) |
|
|
— |
|
|
(192,466) |
|
|
(147,291) |
|
|
— |
|
|
(1,373,619) |
|
|
— |
|
|
(7,350,308) |
Operating profit |
|
|
10,973,948 |
|
|
1,620,787 |
|
|
997,245 |
|
|
(4,548) |
|
|
813,138 |
|
|
286,261 |
|
|
1,086,446 |
|
|
1,220,608 |
|
|
— |
|
|
16,993,885 |
Non-current assets |
|
|
26,865,015 |
|
|
17,596,710 |
|
|
1,708,367 |
|
|
13,377,481 |
|
|
3,707,893 |
|
|
1,446,857 |
|
|
39,142,439 |
|
|
7,979,199 |
|
|
(40,455,887) |
|
|
71,368,074 |
Total assets |
|
|
36,044,519 |
|
|
20,417,313 |
|
|
3,787,621 |
|
|
14,277,714 |
|
|
4,191,985 |
|
|
1,723,935 |
|
|
39,610,905 |
|
|
9,647,756 |
|
|
(40,455,887) |
|
|
89,245,861 |
Total liabilities |
|
|
21,330,210 |
|
|
10,703,705 |
|
|
1,554,262 |
|
|
8,569,728 |
|
|
76,563 |
|
|
110,226 |
|
|
167,307 |
|
|
327,494 |
|
|
|
|
|
42,839,495 |
Improvements to assets under concession and acquisition of furniture and equipment in the period |
|
|
4,979,595 |
|
|
856,102 |
|
|
23,901 |
|
|
2,385 |
|
|
191,773 |
|
|
181,147 |
|
|
— |
|
|
1,572,949 |
|
|
— |
|
|
7,807,852 |
Amortization and depreciation |
|
|
(767,618) |
|
|
(774,142) |
|
|
(1,232,755) |
|
|
— |
|
|
(155,936) |
|
|
(54,901) |
|
|
(6) |
|
|
(275,458) |
|
|
— |
|
|
(3,260,815) |
Revenue recognized |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At point in time: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical revenue |
|
|
9,318,916 |
|
|
1,492,797 |
|
|
2,721,817 |
|
|
— |
|
|
1,129,569 |
|
|
428,563 |
|
|
— |
|
|
1,870,059 |
|
|
— |
|
|
16,961,721 |
Non-aeronautical revenue |
|
|
1,155,654 |
|
|
492,680 |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
1,648,334 |
Total |
|
Ps. |
10,474,570 |
|
Ps. |
1,985,477 |
|
Ps. |
2,721,817 |
|
Ps. |
— |
|
Ps. |
1,129,569 |
|
Ps. |
428,563 |
|
Ps. |
— |
|
Ps. |
1,870,059 |
|
Ps. |
— |
|
Ps. |
18,610,055 |
Over a period time: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aeronautical revenue |
|
|
1,225,891 |
|
|
878,727 |
|
|
21,271 |
|
|
— |
|
|
100,747 |
|
|
39,782 |
|
|
— |
|
|
159,721 |
|
|
— |
|
|
2,426,139 |
Non-aeronautical revenue |
|
|
5,189,280 |
|
|
1,791,272 |
|
|
1,061,486 |
|
|
133,143 |
|
|
291,639 |
|
|
83,079 |
|
|
1,148,747 |
|
|
301,030 |
|
|
(1,148,747) |
|
|
8,850,929 |
Revenue for construction service |
|
|
4,847,755 |
|
|
769,893 |
|
|
19,284 |
|
|
— |
|
|
192,466 |
|
|
147,291 |
|
|
— |
|
|
1,373,619 |
|
|
— |
|
|
7,350,308 |
Total |
|
Ps. |
11,262,926 |
|
Ps. |
3,439,892 |
|
Ps. |
1,102,041 |
|
Ps. |
133,143 |
|
Ps. |
584,852 |
|
Ps. |
270,152 |
|
Ps. |
1,148,747 |
|
Ps. |
1,834,370 |
|
Ps. |
(1,148,747) |
|
Ps. |
18,627,376 |
(*) Subsidiary located in Puerto Rico.
(**) Subsidiary located in Colombia.
(***)Subsidiary located in United States of America
Note 3 - Revenue from Contracts with Customers:
3.1) Revenue recognition
Airports operated by the Company receive income from external clients for aeronautical services rendered to airlines and the rendering of complementary services. The Company also recognizes revenue from construction services arising from concession agreements with government entities.
Following is a description of the principal types of service agreements from which the Company receives revenue.
3.1.1) Aeronautical services
The Company operates airports in three countries (Mexico, Puerto Rico and Colombia), providing multiple aeronautical services involving principally the following performance obligations:
| a. | Passenger rates (Airport Use Rate – TUA), which are calculated based on total outgoing passengers (other than diplomats, infants and passengers in transit) making use of air terminals operated by the Company. |
F-15
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
| b. | Landing fees, which contemplate landing services, the use of runways, taxiing strips, and bands. |
| c. | Platform use fees, based on the time an aircraft remains at a terminal after landing. |
| d. | Security services, calculated on the basis of the total number of incoming and outgoing passengers. |
| e. | Baggage inspection fee, calculated on the basis of total number of outgoing passengers. |
| f. | Use of passenger walkways, which consists of rendering passenger walkways service connecting an aircraft to the terminal after landing. |
| g. | Fee for the use of passenger documentation counters; the fee is applied on the basis of the holding of documentation for one-hour periods. After the first hour has elapsed, the fee is charged proportionately for 30-minute increments. |
Revenue is measured based on the consideration specified in the tariff regulating system applicable to airports in each country for each performance obligation identified. In Mexico, these are regulated by the SCT, in Puerto Rico by the “Federal Aviation Administration” (or FAA) and in Colombia by the Special Administrative Unit of Civil Aeronautics (Aerocivil).
In its capacity as operator of the LMM Airport, Aerostar entered into a Use Agreement with the main airlines serving LMM Airport, referred to as “Signing Airlines”. The agreement has a term of 15 years, counted as from February 27, 2013, with an option to be terminated in advance by agreement of the parties. If, upon completion of the effective term, no new use agreements have been entered into, each of the Use Agreements in force at that date will continue to be binding until new use agreements are signed.
Pursuant to the Use Agreement, Aerostar is entitled to receive the following annual contributions from the airlines serving LMM Airport:
| ● | For the first year of the contract (i.e. the year ended on December 31, 2013), USD62,000 (approximately Ps.1,268,966) multiplied by the number of effective days elapsed in that year, divided by the number of days of the year. |
| ● | For the following five years of the contract, USD62,000 per year. |
| ● | For the remaining years, the total annual contributions for the previous year, adjusted by inflation based on the non-underlying U.S. Consumer Price Index. For the years ended December 31, 2023, 2024 and 2025, airline contributions was USD69,424 (Ps.1,174,583), USD73,294 (Ps.1,315,526) and USD76,799 (Ps.1,382,474), respectively. |
Passenger, landing and security fees are recorded at a particular point in time, once the aircraft departure manifest has been delivered. Revenue arising from other performance obligations is recorded over a period of time as the services are rendered.
Discounts
The Company may apply discounts to its rates, provided they are not discriminatory in the light of the laws in effect in the countries in which the Company operates. Discounts are granted based on the discount policy and conditions negotiated with the National Autotransportation Chamber (CANAERO), and regulated revenue must be delivered within a period of 30 days.
Revenues are recorded net of estimated discounts based on applicable rates.
The prompt-payment discount for regulated income principally the Airport Use Fees (TUA by its initials in Spanish) is established in each of the contracts signed with the airlines, and is subtracted from the aforementioned income. In 2023, 2024 and 2025, the discount amounted to Ps.200,695, Ps.315,012 and Ps.166,079, respectively.
F-16
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Terms of payment
The airport service contracts stipulate a payment term of 30 days; in the case of fees charged to providers of services, complementary services, payments must be made on the first day of each month.
Amendments to the Tariff Regulation Bases
On October 4, 2023, ASUR received a notification from the AFAC, a decentralized body of the Ministry of Infrastructure, Communications and Transportation (SICT), informing of its decision to modify with immediate effect the terms of the tariff base regulation established in the Exhibit 7 of the concession contracts entered into with the SICT dated June 29, 1998, and its last amendment on March 19, 1999. Section 10.8 of the concession contracts establishes that any of the terms of the concession may be modified by mutual agreement between the SICT and ASUR in accordance with the applicable law. Following negotiations between the Company and the SICT, the SICT decided to unilaterally modify the terms of the Amended Tariff Regulations. On October 18, 2023, the Mexican Congress approved the initiative to increase the Airport Use Right of each of the airports in the ASUR concession from 5% to 9%. The increase took effect from January 1, 2024.
On December 11, 2023, the Federal Civil Aviation Agency (AFAC), based on the periodic review of the maximum joint rate on the new bases, determined the maximum joint rate of the Mexican Airports for the period from January 1, 2024 through December 31, 2028, the rates applicable are shown below:
Maximum Tariffs 2026 – 2028
In pesos as of December 31, 2025
Airport |
|
2026 (1) |
|
2027 (1) |
|
2028 (1) |
Cancun |
|
360.58 |
|
357.69 |
|
354.82 |
Cozumel |
|
462.48 |
|
458.78 |
|
455.11 |
Huatulco |
|
495.40 |
|
491.43 |
|
487.50 |
Merida |
|
307.23 |
|
304.77 |
|
302.33 |
Minatitlan |
|
544.90 |
|
540.53 |
|
536.21 |
Oaxaca |
|
363.52 |
|
360.61 |
|
357.72 |
Tapachula |
|
300.05 |
|
297.65 |
|
295.27 |
Veracruz |
|
288.84 |
|
286.53 |
|
284.23 |
Villahermosa |
|
324.64 |
|
322.05 |
|
319.47 |
(1)Figures in mexican pesos adjusted as of December 31, 2025 based on the Producer Price Index.
3.1.2) Non-aeronautical services
The Company generates revenue from non-aeronautical services, which involve basically the following performance obligations:
| a. | Retail sales, recorded when a product is sold to a client and payment on the transaction is made at the time of purchase. |
| b. | Access rates to nonpermanent overland transportation based on the number of access events experienced by the transportation companies operated by third parties providing passenger transportation services at the terminal. |
| c. | Car parking, rates based on the time vehicles remain at public parking areas. |
Revenue arising from access rates to overland transportation and retail sales are recorded at a particular point in time, to the extent that the performance obligation is satisfied and the promised goods and services are transferred, while parking area income is recorded over time.
F-17
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Contracts for commercial income
International Financial Reporting Standard 15 “Revenue from Contracts with Customers” (IFRS 15) should be applied to all contracts with customers; however, there are exceptions such as commercial lease contracts, which are within the scope of IFRS 16 “Leases”.
Leasing income (non-regulated activities) are considered complementary services to the supply of regulated services so there is no separate infrastructure other than the intangible recognized as show in Note 8, nor is a right of use to be accounted for separately in the adoption of IFRS 16.
Presently, space leased at airports to airlines and other commercial lessees comprise the most significant source of income related to non-aeronautic services. Leasing income is accrued monthly and is determined by applying a percentage established in the lease contract to income from actual sales of lessees (share of sales), or an agreed minimum fee.
ASUR Airports, LLC, a subsidiary, holds the rights to develop and operate food and beverage outlets, retail spaces, and other commercial spaces within airport terminals in Los Angeles, Chicago, and New York. These spaces are then leased to individual concessionary operators. The established contracts do not constitute concessions under IFRIC 12 (“Concession Agreements”) but rather agreements that allow a third party, without a direct concession, to operate the leased properties.
At the beginning of the contract, the Company determines whether the agreement constitutes or contains a lease. A lease grants the right to control the use of an identified asset for a period of time in exchange for consideration. Lease components and non-lease components are separated based on their relative standalone selling price for the Company’s leases as lessor. For the Company’s leases as lessee, the Company applies the practical expedient available by asset class: not allocating the contract consideration between lease and non-lease components.
Commercial leasing operations include the leasing of automobiles, the sale of food and beverages, retail sales, sales made at kiosks, graphic advertising, overland transportation, fixed operations and other services rendered. Commercial income is partially recorded on the basis of lessee income and is partially based on minimum lease rates.
At December 31, 2023, 2024 and 2025, variable leasing income was Ps.6,831,223, Ps.7,088,231 and Ps.7,222,188, respectively, and Ps. 887,191, Ps.1,069,265 and Ps.1,078,507, respectively, for fixed leasing rates.
3.1.3) Construction services
As an operator of airport concessions, the Company is required to improve items under concession. Works carried out within the airport are based on development plans authorized by the regulators. Revenue from construction services are recorded on the basis of percentages of completion, presented by the contractors, and approved by the regulator at least once a year. Improvements made are expected to complement the infrastructure of the airport operated by the Group. IFRS 15 establishes that during the construction period of the infrastructure related to concessions received, they must be shown as “contract assets” in the statement of financial position, regardless of the type of consideration received (financial asset or intangible asset). See Note 9.
Construction services carried out by the Group do not entitle it to a direct cash consideration; rather, it is entitled to charge users for airport services rendered at the terminals during the concession period. Revenue from construction services is measured at fair value of the services rendered, which increased the value of the intangible asset, plus the cost of capitalizable financing.
F-18
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
As of December 31, 2023, 2024 and 2025, revenues from construction services in Mexico were Ps.873,574, Ps.2,196,717 and Ps.6,561,131. In Aerostar they were Ps.414,520, Ps.626,195, and Ps.769,893, and in Airplan were Ps.14,539, Ps.25,387 and Ps.19,284, respectively.
3.1.4) Airports Law and Regulations
Mexico
Under the Mexican Airports Law and regulations thereto, company revenue is classified as Airport Services, Complementary Airport Services and Commercial Services. Airport Services mainly consist of the use of runways, taxiways and platforms for landings and departures, parking for aircrafts, use of mechanical boarders, security services, hangars, car parking, as well as the general use of the terminals and other infrastructure by the aircrafts, passengers and cargo, including the rental of space that is essential for the operation of airlines and suppliers of complementary services. Non-regulated Services mainly consist in complementary services consist such as of ramp services and handling of luggage and cargo, food services, maintenance and repair and related activities that provide support to the airlines.
The Rate Regulation Law provides that the following sources of revenues are regulated under this system:
| ● | Revenues from airport services (as defined under the Mexican Airport Law), other than automobile parking, and |
| ● | Access fees earned from third parties providing complementary services, other than those related to the establishment of administrative quarters that the SCT determines to be non-essential. |
Non-regulated Services consist of services that are not considered essential for an airportʼs operation, such as the rental of spaces to businesses, restaurants and banks. Access fees and revenue from other services are recognized as services are rendered.
F-19
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The following sets forth the Company revenue at December 31, 2023, 2024, and 2025 using the classification established in the Airport Law and the Regulations there to, on the basis of performance obligations established under IFRS 15.
|
|
Year ended of December 31, |
|||||||
|
|
2023 |
|
2024 |
|
2025 |
|||
Regulated services: |
|
|
|
|
|
|
|
|
|
Airport services for revenue from contracts with customers: |
|
|
|
|
|
|
|
|
|
Passengers fees |
|
Ps. |
11,771,402 |
|
Ps. |
14,414,309 |
|
Ps. |
15,364,490 |
Landing fees |
|
|
1,376,707 |
|
|
1,533,321 |
|
|
1,418,081 |
Platform |
|
|
704,446 |
|
|
960,182 |
|
|
931,901 |
Seurity services |
|
|
152,059 |
|
|
178,016 |
|
|
181,275 |
Baggage inspection fees |
|
|
400,280 |
|
|
575,776 |
|
|
582,686 |
Passengers walkway |
|
|
691,920 |
|
|
790,739 |
|
|
761,802 |
Passengers documentation counters |
|
|
35,298 |
|
|
34,272 |
|
|
34,093 |
Other airport services |
|
|
538,326 |
|
|
563,432 |
|
|
520,456 |
Total regulated services (*) |
|
Ps. |
15,670,438 |
|
Ps. |
19,050,047 |
|
Ps. |
19,794,784 |
|
|
|
|
|
|
|
|
|
|
Non regulated services: |
|
|
|
|
|
|
|
|
|
Non regulated services for revenue from contracts with customers: |
|
|
|
|
|
|
|
|
|
Retail stores |
|
Ps. |
1,569,319 |
|
Ps. |
1,553,383 |
|
Ps. |
1,648,334 |
Access fees on non permanent ground transportation |
|
|
96,914 |
|
|
102,190 |
|
|
104,120 |
Car parking |
|
|
458,039 |
|
|
508,298 |
|
|
568,639 |
Other services |
|
|
271,690 |
|
|
291,129 |
|
|
303,494 |
|
|
|
2,395,962 |
|
|
2,455,000 |
|
|
2,624,587 |
Commercial services |
|
|
6,452,611 |
|
|
6,979,441 |
|
|
7,467,752 |
Total non regulated services (**) |
|
|
8,848,573 |
|
|
9,434,441 |
|
|
10,092,339 |
Construction services |
|
|
1,302,633 |
|
|
2,848,299 |
|
|
7,350,308 |
Total |
|
Ps. |
25,821,644 |
|
Ps. |
31,332,787 |
|
Ps. |
37,237,431 |
(*) |
For 2023, 2024 and 2025, this includes Mexico’s regulated income amounting to Ps.11,694,911, Ps.14,376,540 and Ps.14,680,173, respectively, Aerostar’s regulated income amounting to Ps.2,029,890, Ps.2,208,073 and Ps.2,371,523, respectively, Airplan’s regulated income amounting to Ps.1,945,637, Ps.2,465,434 and Ps.2,743,088, respectively. |
(**) |
This line item in the consolidated statement of income (non-aeronautical services) includes complementary and airport services totaling Ps.447,345, Ps.460,886 and Ps.406,925 for the 2023, 2024 and 2025 periods, respectively. |
Puerto Rico
According to the agreement entered into by the Puerto Rico Authority and Aerostar, Aerostar revenue is classified as either regulated services or non-regulated services. See Notes 3.1.1 and 3.1.2.
Colombia
Under resolution 4530 of Civil Aeronautics in Colombia, Airplan revenue is classified as either regulated services or non-regulated services. See Notes 3.1.1 and 3.1.2.
F-20
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The following table sets forth revenue from leasing of commercial spaces by type for the years indicated:
|
|
Year ended of December 31, |
|||||||
|
|
2023 |
|
2024 |
|
2025 |
|||
Commercial revenues: |
|
|
|
|
|
|
|
|
|
Duty free shops |
|
Ps. |
2,621,852 |
|
Ps. |
2,807,365 |
|
Ps. |
2,817,169 |
Food and beverage |
|
|
1,419,917 |
|
|
1,457,698 |
|
|
1,607,354 |
Advertising revenues |
|
|
206,942 |
|
|
236,629 |
|
|
208,545 |
Car rental companies |
|
|
1,230,544 |
|
|
1,404,473 |
|
|
1,536,502 |
Banking and currency exchange servcies |
|
|
103,285 |
|
|
98,475 |
|
|
93,933 |
Teleservices |
|
|
16,099 |
|
|
16,073 |
|
|
26,129 |
Ground transportations |
|
|
144,674 |
|
|
166,549 |
|
|
187,024 |
Other services |
|
|
709,298 |
|
|
792,179 |
|
|
991,096 |
Total commercial revenues |
|
Ps. |
6,452,611 |
|
Ps. |
6,979,441 |
|
Ps. |
7,467,752 |
The domestic and international passenger traffic for 2023, 2024 and 2025, in thousands is show as follows:
|
|
Year ended of December 31, |
||||
|
|
2023 |
|
2024 |
|
2025 |
Domestic passenger traffic: |
|
|
|
|
|
|
Mexico |
|
21,273 |
|
19,809 |
|
19,696 |
Puerto Rico |
|
10,919 |
|
11,697 |
|
11,908 |
Colombia |
|
11,920 |
|
13,005 |
|
13,243 |
Total domestic passengers |
|
44,112 |
|
44,511 |
|
44,847 |
|
|
|
|
|
|
|
International passenger traffic: |
|
|
|
|
|
|
Mexico |
|
22,195 |
|
21,611 |
|
20,900 |
Puerto Rico |
|
1,278 |
|
1,550 |
|
1,736 |
Colombia |
|
2,975 |
|
3,647 |
|
4,078 |
Total international passengers |
|
26,448 |
|
26,808 |
|
26,714 |
Total passengers |
|
70,560 |
|
71,319 |
|
71,561 |
The increase in revenue in 2023,2024 and 2025 is shown below, respectively, by country, without considering construction services which does not depend directly on passenger traffic:
|
|
Year ended of December 31, |
|
% Change 2025 |
|
% Change 2025 |
|||||||
|
|
2023 |
|
2024 |
|
2025 |
|
compared to 2023 |
|
compared to 2024 |
|||
Aeronautical revenue |
|
|
|
|
|
|
|
|
|
|
|
|
|
Mexico |
|
Ps. |
11,247,569 |
|
Ps. |
13,915,654 |
|
Ps. |
14,273,248 |
|
26.9 |
|
2.6 |
Puerto Rico |
|
|
2,029,890 |
|
|
2,208,073 |
|
|
2,371,524 |
|
16.8 |
|
7.4 |
Colombia |
|
|
1,945,637 |
|
|
2,465,434 |
|
|
2,743,088 |
|
41.0 |
|
11.3 |
Total aeronautical revenue |
|
Ps. |
15,223,096 |
|
Ps. |
18,589,161 |
|
Ps. |
19,387,860 |
|
27.4 |
|
4.3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-aeronautical revenue |
|
|
|
|
|
|
|
|
|
|
|
|
|
Mexico |
|
|
6,906,759 |
|
|
7,056,319 |
|
|
7,153,825 |
|
3.6 |
|
1.4 |
Puerto Rico |
|
|
1,729,919 |
|
|
1,981,707 |
|
|
2,283,952 |
|
32.0 |
|
15.3 |
Colombia |
|
|
659,237 |
|
|
857,301 |
|
|
1,061,486 |
|
61.0 |
|
23.8 |
Total non-aeronautical revenue |
|
Ps. |
9,295,915 |
|
Ps. |
9,895,327 |
|
Ps. |
10,499,263 |
|
12.9 |
|
6.1 |
Total without construction revenue |
|
Ps. |
24,519,011 |
|
Ps. |
28,484,488 |
|
Ps. |
29,887,123 |
|
21.9 |
|
4.9 |
The aeronautical and no aeronautical revenues corresponding to ASUR Commercial LLC were presented within the Mexico revenues.
F-21
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Below is the estimated future income for next year’s arising from non-cancelable operating leases, considering minimum rent commercial leases:
|
|
Year ended |
|||||||
|
|
December 31, |
|||||||
|
|
2023 |
|
2024 |
|
2025 |
|||
2024 |
|
Ps. |
4,643,338 |
|
|
— |
|
|
— |
2025 |
|
|
4,271,488 |
|
Ps. |
5,014,633 |
|
|
— |
2026 |
|
|
3,841,569 |
|
|
4,366,396 |
|
Ps. |
5,458,450 |
2027 |
|
|
3,008,983 |
|
|
3,343,207 |
|
|
4,459,063 |
2028 |
|
|
2,158,389 |
|
|
2,361,104 |
|
|
3,403,997 |
2029 |
|
|
503,339 |
|
|
599,477 |
|
|
1,415,386 |
2030 |
|
|
350,706 |
|
|
335,523 |
|
|
1,006,852 |
2031 to 2034 |
|
|
— |
|
|
203,195 |
|
|
2,149,383 |
Total |
|
Ps. |
18,777,812 |
|
Ps. |
16,223,535 |
|
Ps. |
17,893,132 |
Includes minimum rental income of Ps.6,509,541 for the period from 2026 to 2034 from the U.S. subsidiary ASUR Airports, acquired on December 11, 2025. See Note 1.1 and Note 19.8.1.
Note 4 - Costs and expenses by nature:
|
|
Year ended December 31, |
|||||||
|
|
2023 |
|
2024 |
|
2025 |
|||
Short term benefits |
|
Ps. |
1,626,289 |
|
Ps. |
1,812,680 |
|
Ps. |
2,039,994 |
Electric power |
|
|
499,753 |
|
|
549,420 |
|
|
590,483 |
Maintenance and conservation |
|
|
815,810 |
|
|
829,458 |
|
|
951,629 |
Professional fees |
|
|
305,625 |
|
|
328,089 |
|
|
532,133 |
Insurance and bonds |
|
|
277,754 |
|
|
310,732 |
|
|
316,370 |
Surveillance services |
|
|
427,811 |
|
|
553,403 |
|
|
635,185 |
Cleaning services |
|
|
303,168 |
|
|
381,224 |
|
|
443,791 |
Technical assistance (Note 16.4) |
|
|
715,462 |
|
|
400,838 |
|
|
400,912 |
Right of use of assets under concession (DUAC) (1) |
|
|
1,496,142 |
|
|
2,557,670 |
|
|
2,704,657 |
Amortization and depreciation of intangible assets, furniture and equipment |
|
|
2,069,157 |
|
|
2,322,984 |
|
|
3,260,813 |
Consumption of commercial items |
|
|
552,298 |
|
|
542,872 |
|
|
550,132 |
Construction services (Note 3.1.3) |
|
|
1,302,633 |
|
|
2,848,299 |
|
|
7,350,308 |
Employees’ statutory profit sharing |
|
|
98,651 |
|
|
122,604 |
|
|
131,242 |
Termination benefits |
|
|
5,434 |
|
|
5,882 |
|
|
10,948 |
Impairment of accounts receivable (Note 6.2) |
|
|
34,276 |
|
|
3,435 |
|
|
30,818 |
Other |
|
|
47,856 |
|
|
243,391 |
|
|
294,131 |
Total aeronautical and non-aeronautical services costs, costs of construction services and administrative expenses |
|
Ps. |
10,578,119 |
|
Ps. |
13,812,981 |
|
Ps. |
20,243,546 |
(1) |
The amounts of Ps.820,230, Ps.1,728,174 and Ps.1,755,832, for fiscal years 2023, 2024 and 2025, respectively, are associated with the valuable consideration paid for the concessions in Mexico, equivalent to 9% for 2023 and 2024, and 9% as of January 1, 2025, of the gross profits of each concession. In turn, the amounts of Ps.495,478, Ps.629,900 and Ps.722,742, respectively, are associated with the valuable consideration for the Airplan concession, equivalent to 19% of gross profits, while the amounts of Ps.180,434, Ps.199,596 and Ps.226,083, respectively, are associated with the valuable consideration for the Aerostar concession, equivalent to 5% of the airport’s gross profits. |
F-22
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Note 5 - Cash and cash equivalents:
As of December 31, 2024 and 2025, cash and short-term cash equivalents are shown below:
|
|
December 31, |
||||
|
|
2024 |
|
2025 |
||
Cash held at banks |
|
Ps. |
11,495,389 |
|
Ps. |
4,258,090 |
Short term investments |
|
|
8,588,068 |
|
|
6,858,245 |
Total cash and cash equivalents |
|
Ps. |
20,083,457 |
|
Ps. |
11,116,335 |
5.1) Restricted cash
Aerostar
In accordance with Aerostar’s long-term bond placement contracts, it is required to maintain debt reserves and operating expenses, under two options described in the same contract, which are: 1) cash, through a specific bank account or 2) letter qualified credit. Until February 2022, this requirement was covered by the letter of credit issued by Aerostar stockholders in favor of Citibank, which generated commissions (recognized as an expense) thus having the guarantee of a third party. Derived from Aerostar’s available liquidity, as of March 2022, the Administration decided to meet these reserves with the cash that was available, for which, through a specific bank account, it maintains the amount that is restricted for reserves. The Company does not have immediate access to these resources because it is required to maintain reserves at all times and the use of these reserves is subject to authorizations in accordance with the bond placement agreements. These deposits are subject to contractual restrictions and therefore are not available for general use. As of December 31, 2024 and 2025, the restricted cash balance amounts to Ps.1,464,532 and Ps.1,293,363, respectively.
As of December 31, 2024 and 2025, restricted cash include the amounts collected by Aerostar for the concept of “Passenger Facility Charge” (PFC) which are restricted to be used to fund investment projects in airport infrastructure previously authorized by the FAA, of Ps.579,093 and Ps.747,664, respectively. (See Notes 17.c and 19.6.).
In according with IAS 7 Statement of Cash Flow, restricted cash movements are presented within operating, investing or financing activities, depending on the nature of the underlying restriction, and are considered in the reconciliation of cash and cash equivalents at the beginning and end of the period.
Note 6 – Financial Assets:
6.1) Accounts receivable – net:
|
|
December 31, |
||||
|
|
2024 |
|
2025 |
||
Clients |
|
Ps. |
3,163,614 |
|
Ps. |
2,888,148 |
Less: impairment estimate |
|
|
(359,273) |
|
|
(325,839) |
Total accounts receivables |
|
Ps. |
2,804,341 |
|
Ps. |
2,562,309 |
The expectation for collection of the short-term account receivable is one month in relation to the reporting date.
Accounts receivable are comprised mainly of TUA paid by passengers (other than diplomats, infants and passengers in transit) who travel using the airport terminals operated by the Company. The balance at December 31, 2024 and 2023 amounted to Ps.1,563,833 and Ps.1,368,380, respectively.
F-23
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
6.2) Impairment of accounts receivable
After the assessment made by the Company with respect to its clients, the Company decreased in 2025 the consolidated allowance for doubtful accounts by Ps. 33,434 compared to 2024, and increased it in 2024 by Ps.23,050 compared to 2023.
At December 31, 2025, total balance of accounts receivable not impaired amounts to Ps.2,084,179 (Ps.2,304,659 at December 31, 2024). These accounts refer to clients that have no recent record of noncompliance, and due to their positive performance with the company, no increase the level of credit risk was identified in our prospective assessment.
In Mexico, increases to the impairment of accounts receivable for the year 2024 and 2025 amounted to Ps.2,542 and Ps.66, respectively. At December 31, 2024 and 2025, in accordance with our analyses, no future noncompliance is expected, as they were able to access to financing and governmental economic aid, in the case of international airlines, which will enable them to continue meeting their financial commitments. The Company monitors the accounts receivable performance and takes measures in this regard, as it is empowered to suspend service provision if there are situations outside its policy for due dates exceeding 30 days, which keeps the level of exposure at a low risk.
At Aerostar, in 2024, write-offs to the allowance for doubtful accounts amounted to Ps.24,228, with a foreign currency translation effect of Ps.5,457 and write-offs of Ps.16,936, mainly related to certain international airlines ceasing to operate at the LLM airport. Decreases to the allowance for doubtful accounts were recorded in 2025 in the amount of Ps.2,387, a decrease due to foreign currency translation effect of Ps.5,176, and write-offs of Ps.1,341. According to the Company’s analysis and the current uncertainty, it is likely that some recurring international operations at LMM Airport may cease due to the decline in international passenger traffic traveling directly to LMM Airport. The passenger mix at this airport consists mainly of domestic traffic. In 2024 and 2025, domestic traffic represented 88% and 87%, respectively. Up to fiscal year 2023, U.S. domestic airlines benefited from government subsidies, using funds granted by U.S. authorities to meet their operating responsibilities, including accounts receivable as of December 31, 2024. However, during 2025 no significant defaults in collections from international airlines were recorded.
In Airplan, increases to the allowance for impairment of accounts receivable were recorded in 2024 for Ps.6,967, mainly due to the suspension of operations of Viva Air and Ultra Air, and a foreign currency translation effect of Ps.792 increases to the allowance for impairment of accounts receivable were recorded in 2025 for Ps.4,670, and decreases due to cancellations of accounts receivable for Ps.29,970, on July 1, 2025, the uncollectibility of the accounts receivable from Viva Air for Ps.13.6 million and Ultra Air for Ps. 7.8 million was declared by court order. An increase due to foreign currency translation effect of Ps. 704 was also recorded. The Company monitors the behavior of accounts receivable and takes measures in this regard, empowered, where appropriate, to prevent service to its customers, to find situations outside of what is established in its policy of maturities greater than 30 days, which maintains low risk exposure level.
F-24
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The movements in the impairment provision are as follows:
Estimate for impairment at January 1, 2024 |
|
Ps. |
336,223 |
Mexico’s increase estimate |
|
|
2,542 |
Aerostar’s increase estimate |
|
|
24,228 |
Aerostar’s application estimate |
|
|
(16,936) |
Effect of foreign currency translation Aerostar |
|
|
5,457 |
Airplan’s increase estimate |
|
|
6,967 |
Effect of foreign currency translation Airplan |
|
|
792 |
Estimate for impairment at December 31, 2024 |
|
Ps. |
359,273 |
Mexico’s increase estimate |
|
Ps. |
66 |
Aerostar’s increase estimate |
|
|
(2,387) |
Cancelation of Aerostar’s estimate |
|
|
(1,341) |
Effect of foreign currency translation Aerostar |
|
|
(5,176) |
Airplan’s increase |
|
|
4,670 |
Cancelation of Airplan’s estimate |
|
|
(29,970) |
Effect of foreign currency translation Airplan |
|
|
704 |
Estimate for impairment at December 31, 2025 |
|
Ps. |
325,839 |
The constitution of the estimate for impairment of accounts receivable has been recorded in the consolidated comprehensive income statement under cost of services, and the amounts charged to the estimate are written off from accounts receivable when recovery is not expected.
In order to measure expected credit losses, accounts receivable and contract assets have been grouped on the basis of their shared credit risk features and days past due. The Company held no relevant contract assets at January 1 or December 31, 2024 and 2025.
The expected loss rates are based on the profiles for payment of sales in a 12-month period prior to December 31, 2024 and 2025 or January 1, 2024 and 2025, respectively, and on historical credit losses experienced within that period. Historical loss rates are adjusted to reflect current and prospective information on macroeconomic factors affecting client capacity for covering accounts receivable. The Company has determined that the economic situation of a country can have adverse effects on the transportation industry, in addition to the cost of complying with aviation regulations and union pressures on airlines, which are the most relevant factors, and therefore adjusts historical loss rates based on changes expected in those factors.
On this basis, the estimate for impairment of accounts receivables as of December 31, 2024 and December 31, 2025 was determined as follows for accounts receivable and contract assets:
|
|
Due to |
|
1 to 90 |
|
91 to 180 |
|
181 to 365 |
|
More than |
|
|
|
expire |
|
days |
|
days |
|
days |
|
365 days |
|
Expected loss rate 2024 |
|
|
|
|
|
|
|
|
|
|
|
Mexico |
|
0.00 |
% |
0.02 |
% |
19.20 |
% |
100.00 |
% |
100.00 |
% |
Aerostar |
|
1.75 |
% |
7.29 |
% |
43.70 |
% |
87.50 |
% |
100.00 |
% |
Airplan |
|
0.83 |
% |
0.83 |
% |
0.83 |
% |
100.00 |
% |
100.00 |
% |
F-25
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
|
|
Due to |
|
|
|
|
|
|
|
|
|
|
More |
|
Total estimate |
|||
|
|
expire |
|
1 to 90 days |
|
91 to 180 days |
|
181 to 365 days |
|
than 365 days |
|
12/31/2024 |
||||||
At December 31, 2024 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mexico’s accounts receivables |
|
Ps. |
2,304,659 |
|
Ps. |
82,081 |
|
Ps. |
5,912 |
|
Ps. |
16 |
|
Ps. |
239,498 |
|
|
|
Mexico’s estimate impairment |
|
|
|
|
|
1,642 |
|
|
1,135 |
|
|
16 |
|
|
239,498 |
|
Ps. |
242,290 |
Aerostar’s account receivables |
|
|
260,709 |
|
|
31,700 |
|
|
14,660 |
|
|
331 |
|
|
1,370 |
|
|
|
Aerostar’s estimate impairment |
|
|
32,003 |
|
|
2,456 |
|
|
6,241 |
|
|
290 |
|
|
1,370 |
|
|
42,360 |
Airplan’s accounts receivables |
|
|
125,605 |
|
|
30,293 |
|
|
317 |
|
|
— |
|
|
66,463 |
|
|
|
Airplan’s estimate impairment |
|
|
5,492 |
|
|
2,351 |
|
|
317 |
|
|
— |
|
|
66,463 |
|
|
74,623 |
Total estimate |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ps. |
359,273 |
|
|
Due to |
|
1 to 90 |
|
91 to 180 |
|
181 to 365 |
|
More than |
|
|
|
expire |
|
days |
|
days |
|
days |
|
365 days |
|
Expected loss rate 2025 |
|
|
|
|
|
|
|
|
|
|
|
Mexico |
|
0.00 |
% |
0.02 |
% |
19.20 |
% |
100.00 |
% |
100.00 |
% |
Aerostar |
|
1.75 |
% |
7.29 |
% |
43.70 |
% |
87.50 |
% |
100.00 |
% |
Airplan |
|
0.83 |
% |
0.83 |
% |
0.83 |
% |
100.00 |
% |
100.00 |
% |
|
|
Due to |
|
1 to 90 |
|
91 to 180 |
|
181 to 365 |
|
More |
|
Total estimate |
||||||
|
|
expire |
|
days |
|
days |
|
days |
|
than 365 days |
|
12/31/2025 |
||||||
At December 31, 2025 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mexico’s accounts receivables |
|
Ps. |
2,084,179 |
|
Ps. |
9,650 |
|
Ps. |
156 |
|
Ps. |
— |
|
Ps. |
242,130 |
|
|
|
Mexico’s estimate impairment |
|
|
— |
|
|
193 |
|
|
30 |
|
|
— |
|
|
242,133 |
|
Ps. |
242,356 |
Aerostar’s account receivables |
|
|
278,932 |
|
|
34,974 |
|
|
2,076 |
|
|
31 |
|
|
— |
|
|
|
Aerostar’s estimate impairment |
|
|
30,511 |
|
|
2,011 |
|
|
907 |
|
|
27 |
|
|
— |
|
|
33,456 |
Airplan’s accounts receivables |
|
|
106,198 |
|
|
9,587 |
|
|
433 |
|
|
— |
|
|
39,105 |
|
|
|
Airplan’s estimate impairment |
|
|
9,444 |
|
|
1,045 |
|
|
433 |
|
|
— |
|
|
39,105 |
|
|
50,027 |
ASUR Airports’s accounts receivables |
|
|
80,701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total estimate |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ps. |
325,839 |
The Group limits its exposure to credit risk of accounts receivable establishing a maximum payment term of 30 days for clients. In the fiscal years ended December 31, 2024 and 2025, the accounts receivable past due not impaired within the range from 1 to 90 days amounted to Ps.139,268 and Ps.125,261, respectively. The total amount of all accounts receivable past due not impaired within a range from 1 to more than 365 days, at December 31, 2024 and 2025, amounted Ps.216,978 and Ps.225,731, respectively.
6.3) Investment in financial instruments
In August 2023, the Company contracted two bonds in US dollars with rates of 6.5% and 6.8%, semiannual interest. The maturities are March 13, 2027 and January 23, 2030, respectively. The balance at December 31, 2024, amounted Ps.1,537,688. On April 2, 2025, and May 15, 2025, the Company sold the bonds maturing on January 23, 2030.
The fair value of the bonds at December 31, 2024, amounted Ps.1,534,003. At December 31, 2024, the fair value hierarchy level for investments in securities is hierarchy level 1.
F-26
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Note 7 - Land, furniture and equipment - Net:
At December 31, 2024, and 2025, the land furniture and equipment are made up as follows:
|
|
|
|
|
Foreign currency |
|
|
|
|
|
|
|
|
|
|
|
|
01/01/2024 |
|
translation |
|
Additions |
|
Disposals transfers |
|
12/31/2024 |
|||||
Land |
|
Ps. |
177 |
|
Ps. |
15 |
|
|
— |
|
|
— |
|
Ps. |
192 |
Furniture & equipment |
|
|
139,342 |
|
|
3,267 |
|
Ps. |
16,629 |
|
|
— |
|
|
159,238 |
Machinery & equipment |
|
|
151,868 |
|
|
40,650 |
|
|
26,354 |
|
|
— |
|
|
218,872 |
Computer equipment |
|
|
117,323 |
|
|
32,777 |
|
|
35,870 |
|
|
— |
|
|
185,970 |
Transport equipment |
|
|
46,183 |
|
|
10,847 |
|
|
9,533 |
|
Ps. |
(3,397) |
|
|
63,166 |
Improvements to leased |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
premises |
|
|
98,824 |
|
|
27,922 |
|
|
33,814 |
|
|
— |
|
|
160,560 |
Accumulated depreciation |
|
|
(369,701) |
|
|
(77,597) |
|
|
(72,250) |
|
|
— |
|
|
(519,548) |
|
|
Ps. |
184,016 |
|
Ps. |
37,881 |
|
Ps. |
49,950 |
|
Ps. |
(3,397) |
|
Ps. |
268,450 |
|
|
|
|
|
Foreign currency |
|
|
|
|
|
|
|
|
|
|
|
|
01/01/2025 |
|
translation |
|
Additions |
|
Disposals transfers |
|
12/31/2025 |
|||||
Land |
|
Ps. |
192 |
|
Ps. |
3 |
|
|
— |
|
|
— |
|
Ps. |
195 |
Furniture & equipment |
|
|
159,238 |
|
|
(2,114) |
|
Ps. |
25,640 |
|
|
— |
|
|
182,764 |
Machinery & equipment |
|
|
218,872 |
|
|
(30,175) |
|
|
15,426 |
|
|
— |
|
|
204,123 |
Computer equipment |
|
|
185,970 |
|
|
(30,458) |
|
|
46,270 |
|
|
— |
|
|
201,782 |
Transport equipment |
|
|
63,166 |
|
|
(8,887) |
|
|
7,869 |
|
Ps. |
(1,170) |
|
|
60,978 |
Improvements to leased |
|
|
160,560 |
|
|
(24,182) |
|
|
57,504 |
|
|
— |
|
|
193,882 |
premises |
|
|
— |
|
|
— |
|
|
|
|
|
— |
|
|
— |
Accumulated depreciation |
|
|
(519,548) |
|
|
67,389 |
|
|
(88,497) |
|
|
— |
|
|
(540,656) |
|
|
Ps. |
268,450 |
|
Ps. |
(28,424) |
|
Ps. |
64,212 |
|
Ps. |
(1,170) |
|
Ps. |
303,068 |
The consolidated depreciation expense for 2023, 2024 and 2025 was Ps.60,687, Ps.72,250 and Ps.88,497, respectively, including the depreciation of Aerostar for Ps.48,514, Ps.59,090 and Ps.73,979 and the depreciation of Airplan for Ps.613, Ps.710 and Ps.544, for the years ended December 31, 2023, 2024 and 2025, respectively, and which has been charged in aeronautical and non-aeronautical services costs, and administrative expenses.
The depreciation expense for 2023, 2024 and 2025 for the right-of-use assets for consolidated leasing was Ps.6,340, Ps.3,583 and Ps.7,146, respectively, applicable in Mexico, there was no recognition of right of assets for leasing in Aerostar and Airplan.
7.1) |
Right-of-use assets of leasing assets |
As of December 31, 2024 and 2025, right-of-use assets associated with property leases, amounted to Ps.27,541 and Ps.27,691, respectively, and the associated liability amounted to approximately Ps.22,496 and Ps.31,557 respectively, which are not significant.
F-27
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The Company has executed a contract for the lease of corporate offices and commercial vehicles. The general terms of the lease contracts are shown below:
Lease of commercial vehicles in Mexico:
Framework contract, with separate contracts by vehicle, including the following terms and conditions: i) mandatory term of 48 months; ii) monthly fixed payments and an extraordinary one-off rent payable in the first month; iii) cash value to be settled at the end of the minimum term; iv) the lessee shall have a preferential right to acquire the underlying assets at the end of the contractual term; and v) in the event of nonpayment of lease payments, default interest shall accrue at a monthly rate of 3%.
The lease agreements and service contracts for which lease assets identified in accordance with IFRS 16 were not significant for the Company and they recognized each other within the Land, furniture and equipment, net. (See Note 19.8).
Note 8 - Investment Properties:
On December 11, 2025, the company, through its subsidiary ASUR US Commercial, entered into an investment agreement to acquire the shares of URW Airports (currently ASUR Airports).
ASUR Airports, LLC (formerly URW Airports) and its subsidiaries hold the rights for the development and operation of retail stores and food & beverage concessions in certain terminals of three U.S. airports: Terminal 5 of Chicago O’Hare International Airport (“ORD”); Terminals 1, 2, 3, and 6, as well as the Tom Bradley International Terminal and the Bradley West Gates Concourse of Los Angeles International Airport (“LAX”); and Terminals 1 and 8 of New York John F. Kennedy International Airport (JFK T1 and JFK T8).
All of the Company’s investment properties are buildings maintained under concession contracts, most of which extend between 2036 and 2039. Investment properties do not include land held under operating leases.
The Company has lease agreements for concession spaces that include fixed payments, including payments that are, in substance, fixed, and variable payments based on an index or rate. These lease agreements generally have a term of 13 to 23 years, with the option to extend them for an additional 5 to 7 years in some cases.
The right-of-use assets meet the definition of investment property and, as such, are presented in the statement of financial position, while lease liabilities are presented as separate line items in the statement of financial position and disclosed separately in the notes.
The following presents the fair value of investment properties as of the acquisition date, December 11, 2025:
|
|
Fair Value |
||||
Bussines Unit |
|
Thousands of USD |
|
Thousands of Pesos |
||
LAX |
|
Ps. |
177,000 |
|
Ps. |
3,189,225 |
ORD |
|
|
40,500 |
|
|
731,199 |
JFK T1 |
|
|
23,900 |
|
|
431,498 |
JFK T8 |
|
|
17,600 |
|
|
317,756 |
|
|
Ps. |
259,000 |
|
Ps. |
4,669,678 |
F-28
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
As of December 11, 2025 (Acquisition Date), the Investment Properties were comprised as follows:
Leasehold Improvements |
|
Ps. |
837,954 |
Construction in Progress |
|
|
976,340 |
Fair Value under IAS 40 |
|
|
2,855,384 |
|
|
|
4,669,678 |
Right-of-Use Assets under Lease Agreements |
|
|
8,119,351 |
Total Investment Properties |
|
Ps. |
12,789,029 |
From the Acquisition Date and up to December 31, 2025, the Investment Properties were comprised as follows:
|
|
|
|
Foreign currency |
|
|
|
|
|
|
|
11/12/2025 |
|
translation |
|
Additions |
|
31/12/2025 |
|
Leasehold Improvements |
|
Ps. |
837,954 |
|
(2,465) |
|
8,389 |
|
843,878 |
Construction in Progress |
|
|
976,340 |
|
(2,872) |
|
20,498 |
|
993,966 |
Fair Value under IAS 40 |
|
|
2,855,384 |
|
(30,906) |
|
|
|
2,824,478 |
|
|
|
4,669,678 |
|
(36,242) |
|
28,887 |
|
4,662,323 |
Right-of-Use Assets under Lease Agreements |
|
|
8,119,351 |
|
(22,725) |
|
|
|
8,096,626 |
Total Investment Properties |
|
Ps. |
12,789,029 |
|
58,967 |
|
28,887 |
|
12,758,949 |
In accordance with IFRS 16 and IAS 40, right-of-use assets derived from leased properties that meet the definition of investment property are measured at fair value. For properties measured at fair value, the market value adopted by the Company is determined based on appraisals performed by qualified independent external experts, who value the Company’s terminals as of June 30 and December 31 of each year.
To determine the appraisal basis, various approaches were analyzed, such as the cost approach, the sales comparison approach, and the income capitalization approach, taking into consideration the type of property, the purpose and scope of the appraisal, the quality and quantity of data available for analysis, and determining which method provides the most reliable value estimate. As a result of this process, the applicable valuation approach was the income capitalization method.
The Company used the Discounted Cash Flow (DCF) method under the income capitalization approach to determine the fair value of each lease right, specifically the future revenues for Los Angeles (LAX), Chicago (ORD), and New York (JFK T1 and JFK T8), based on the following assumptions: Operating and capital expenses were projected using historical operating figures and projections, and the projected cash flows of each operating lease were discounted using an appropriate discount rate. The cash flow of each lease extends from the valuation date to the expiration date of the operating contract; since the lease right is being valued, no reversion was modeled.
In selecting the appropriate discount rate for the lease rights, consideration was given to current economic conditions, relevant physical characteristics of the properties, the stability of projected cash flows, and discount rates obtained from various published surveys of real estate investors, which are presented below:
|
|
Minimum |
|
Maximum |
|
Average |
|
Discount rate |
|
|
|
|
|
|
|
Real estate investor survey |
|
6.00 |
% |
12.00 |
% |
8.08 |
% |
National power center |
|
6.00 |
% |
10.00 |
% |
8.09 |
% |
Real estate industry reprt |
|
6.50 |
% |
12.00 |
% |
8.08 |
% |
|
|
|
|
|
|
|
|
Real estate industry report |
|
|
|
|
|
|
|
National regional shopping center |
|
7.30 |
% |
9.50 |
% |
8.60 |
% |
National power center |
|
8.00 |
% |
9.00 |
% |
8.40 |
% |
National neighborhood shopping center |
|
7.00 |
% |
8.50 |
% |
7.80 |
% |
F-29
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The data and assumptions used to determine the fair value of investment properties under IAS 40 are not similar to those used to determine lease obligations under IFRS 16 for the same contracts, resulting in a fair value of investment properties lower than that of lease obligations.
The key valuation metrics used for the fair value measurement of investment properties under IAS 40 are presented in the following table on a weighted average basis:
|
|
Discount |
|
Investment Horizon |
Investment properties |
|
rate |
|
(Years) |
LAX |
|
8.75 |
% |
12.7 |
ORD |
|
8.75 |
% |
13.7 |
JFK T1 |
|
11.75 |
% |
13.11 |
JFK T8 |
|
9.00 |
% |
11.1 |
For the year 2025, if the discount rate applied to the cash flow projections of the investment projections were +1% or - 1%, the fair value would have had a decrease of $Ps.781,638 and an increase of Ps,646,182 respectively.
Note 9 - Intangible assets, airport concessions and goodwill:
The movements of intangible assets of airport concessions in the periods presented in the consolidated financial statements are as follows:
|
|
|
|
|
Foreign currency |
|
|
|
|
|
|
|
|
|
|
|
|
01/01/2024 |
|
translation |
|
Additions (*) |
|
Transfers |
|
12/31/2024 |
|||||
Concessions (Regulated Activity) |
|
Ps. |
58,504,094 |
|
Ps. |
3,784,683 |
|
Ps. |
245,120 |
|
Ps. |
1,849,882 |
|
Ps. |
64,383,779 |
Contracts assets |
|
|
1,424,292 |
|
|
127,992 |
|
|
2,848,300 |
|
|
(1,849,882) |
|
|
2,550,702 |
Contractor advance |
|
|
214,245 |
|
|
20 |
|
|
1,191,928 |
|
|
— |
|
|
1,406,193 |
Licences and ODC |
|
|
472,764 |
|
|
— |
|
|
87,897 |
|
|
— |
|
|
560,661 |
Commercial Right’s (Unregulated Activity) |
|
|
5,515,570 |
|
|
1,260,707 |
|
|
— |
|
|
— |
|
|
6,776,277 |
Goodwill |
|
|
2,149,185 |
|
|
474,478 |
|
|
— |
|
|
— |
|
|
2,623,663 |
Accumulated amortization |
|
|
(18,970,087) |
|
|
(1,194,291) |
|
|
(2,250,734) |
|
|
— |
|
|
(22,415,112) |
|
|
Ps. |
49,310,063 |
|
Ps. |
4,453,589 |
|
Ps. |
2,122,511 |
|
Ps. |
— |
|
Ps. |
55,886,163 |
|
|
|
|
|
Foreign currency |
|
|
|
|
|
|
|
|
|
|
|
|
01/01/2025 |
|
translation |
|
Additions (**) |
|
Transfers |
|
12/31/2025 |
|||||
Concessions (Regulated Activity) |
|
Ps. |
64,383,779 |
|
Ps. |
(2,470,330) |
|
Ps. |
229,597 |
|
Ps. |
2,337,379 |
|
Ps. |
64,480,425 |
Contracts assets |
|
|
2,550,702 |
|
|
(119,082) |
|
|
7,350,308 |
|
|
(2,337,379) |
|
|
7,444,549 |
Contractor advance |
|
|
1,406,193 |
|
|
— |
|
|
40,208 |
|
|
— |
|
|
1,446,401 |
Licences and ODC |
|
|
560,661 |
|
|
— |
|
|
38,650 |
|
|
— |
|
|
599,311 |
Commercial Right’s (Unregulated Activity) |
|
|
6,776,277 |
|
|
(907,910) |
|
|
— |
|
|
— |
|
|
5,868,367 |
Goodwill |
|
|
2,623,663 |
|
|
(351,445) |
|
|
672,538 |
|
|
— |
|
|
2,944,756 |
Accumulated amortization |
|
|
(22,415,112) |
|
|
826,570 |
|
|
(3,172,318) |
|
|
— |
|
|
(24,760,860) |
|
|
Ps. |
55,886,163 |
|
Ps. |
(3,022,197) |
|
Ps. |
5,158,983 |
|
Ps. |
— |
|
Ps. |
58,022,949 |
(1) |
Includes amortization for concessions as of December 31, 2024 and 2025 for Ps. 20,233,758 and Ps. 22,389,237, respectively. |
F-30
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
(*) |
Within the most significant additions in 2024 are: a) the expansion works of terminal building 1 at Cancun Airport with an amount of Ps.913,765; b) expansion of terminal building 4 at Cancun Airport for Ps.350,430; c) expansion of Villahermosa Airport for Ps.70,547; d) in Aerostar, the most significant works are those that continue to be carried out for the expansion of terminal “D” for Ps.218,057; and e) expansion in the rest of the Group’s airports for Ps.297,083, which have been completed and transferred to the concessions line (regulated). The remainder of the additions corresponds to works that are in the process of being finalized related to the expansion of terminal 1 at Cancun Airport, for an amount of Ps.510,418, and terminal “D” in Puerto Rico, for an amount of Ps.280,213. |
(**) |
Within the most significant additions in 2025 are: Mexico a) mainly the expansion works of Terminal 1 building at Cancún Airport, amounting to Ps.1,570,500; b) expansion of Terminal 4 building at Cancún Airport for Ps.1,308,600; c) expansion of Oaxaca Airport for Ps.492,400; d) expansion of Cozumel Airport for Ps.140,600 e) at Aerostar, the most significant works include improvements to the main parking lot, flight information service, and security system for an amount of Ps.329,645. |
The consolidated expense for amortization of intangibles related to concessions were Ps. 2,008,470, Ps.2,250,734, and Ps.3,172,318 in 2023, 2024 and 2025 and has been charged to the cost of aeronautical and non-aeronautical services, this amount includes the amortization of commercial rights of Aerostar of Ps.154,282, Ps.189,547 and Ps.164,151, for 2023, 2024 and 2025 respectively, recognized by the valuation of its investment in accordance with IFRS 3 “Business combinations”, and the amortization of the intangible assets of Airplan for Ps. 86,509, Ps.106,282 and Ps.318,386 for 2023, 2024 and 2025, respectively. During 2025, the Administration reviewed Airplan’s intangible asset based on a change in the accounting estimate of the concession’s life due to its regulated component. The expected useful life of the intangible asset was adjusted, and it is now estimated to end in 2027, earlier than originally anticipated. This component will be amortized on an accelerated basis until 2027, reflecting the complete extinction of the benefits associated with the regulated revenue. See Note 21.2.
The amortization expense of the Mexican concession by Ps.986,520 in 2023, Ps.1,101,228 in 2024 and Ps.1,161,654 in 2025 has been charged to the cost of the aeronautical and non-aeronautical services.
The amortization expense of the Aerostar concessions by Ps.444,925 in 2023, Ps.480,006 in 2024 and Ps.536,012 in 2025 has been charged to the cost of aeronautical and non-aeronautical services.
The amortization expense of the Airplan concessions by Ps.281,976 in 2023, Ps.311,576 in 2024 and Ps.913,817 in 2025 has been charged to the cost of aeronautical and non - aeronautical services.
The expense for amortizing licenses and ODC by Ps.54,259 in 2023, Ps.62,095 in 2024 and Ps.78,298 in 2025 has been charged to administrative expenses.
9.1) Impairment testing of intangible assets, airport concessions and goodwill
The Company reviews the performance of business in the countries where subsidiaries operate, considering three CGUs per country of operation.
At Aerostar and Airplan, the required annual impairment tests were performed on the goodwill value, which as of December 31, 2024 and 2025, is Ps.2,623,663 and Ps.3,895,647, respectively. The goodwill balance of the ASUR Airports Business Unit as of December 31, 2025, is Ps.672,538.
Goodwill is assigned to the operating segments that are expected to benefit from the synergies of the business combination, regardless of whether other assets or liabilities of the acquired entities are assigned.
F-31
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The following is a summary of the allocation of goodwill:
|
|
December 31, |
||||
|
|
2024 |
|
2025 |
||
Aerostar |
|
Ps. |
993,040 |
|
Ps. |
859,989 |
Airplan |
|
|
1,630,623 |
|
|
1,412,229 |
ASUR Aiports (Note 1.1) |
|
|
— |
|
|
672,538 |
|
|
Ps. |
2,623,663 |
|
Ps. |
2,944,756 |
Methodology:
Pursuant to IAS 36 methods applied to the 2024 and 2025 calculation, Management determines the recoverable value by the fair value less costs of disposal. The Company used this method for all its CGUs. To determine the fair value less costs of disposal the discounted cash flow projections approved by Management are used covering a period of 28 years in 2024 and 27 years in 2025, respectively, in the case of Aerostar and 8 years in 2024 and 2 years in 2025, respectively, in the case of Airplan, which correspond to the remaining years of the airport concessions, with respect to the lease term used for ASUR Airports’ contracts, a period of 19 years was applied for all Terminals.
For 2024 and 2025, the Company uses as a valuation technique to estimate the recoverable amount, by the traditional approach. This approach consists of using a “single” set of estimated cash flows and a single discount rate. Uncertainties are reflected through the risk premium included in the discount rate.
The calculations use cash flow projections that are based on financial budgets and business plans prepared by management and approved by the board of directors. Budgets and business plans are updated to reflect the most recent developments as of the reporting date. Management’s expectations reflect performance to date and are based on its experience in times of recession and are consistent with assumptions a market participant would make. The calculations are based on studies carried out by independent third parties specialized in the aeronautical industry.
The assumptions used to estimate the recoverable amount are consistent with assumptions made by a market participant. For each CGU, the key assumptions for the base scenario were the following during 2024 and 2025.
|
|
2024 |
|
2025 |
|
||||||
|
|
Airplan |
|
Aerostar |
|
Airplan |
|
Aerostar |
|
ASUR Aiports |
|
Discount rate |
|
15.21 |
% |
11.60 |
% |
14.61 |
% |
11.10 |
% |
7.75 |
% |
Average growth rate of passengers in the period after the recovery of passengers by each GCU |
|
3.94 |
% |
4.56 |
% |
5.64 |
% |
2.52 |
% |
4.52 |
% |
Passengers growth rate in the recovery period of each CGU |
|
2.22 |
% |
2.94 |
% |
2.36 |
% |
2.69 |
% |
2.20 |
% |
Average inflation growth rate |
|
|
|
|
|
|
|
|
|
2.50 |
% |
Hierarchy level of the fair value of the recoverable of the CGU |
|
3 |
|
3 |
|
3 |
|
3 |
|
|
|
F-32
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Management has determined the values assigned to each of the above key assumptions as follows:
2024 and 2025
Assumption |
Approach used to determine values |
|
|
||
Discount rate |
|
The after-tax discount rate was used from information of listed companies of the industry where each CGU operates. |
|
||
Average growth rate for operating costs and expenses. |
|
Average growth rate during the concession period, which is based on the latest period and projected inflation trends. |
|
||
Growth rate of departing passengers. |
|
Weighted average growth rate of departing passengers during the concession period aligned with operating and financial growth under a recovered economic environment in terms of passenger traffic. |
For the year 2024, if the discount rate applied to the cash flow projections of each of the CGUs, would have been at +1% or -1% the cash flow projections would have had an effect of an impairment of Ps.960,476 and and excess of Ps.3,672,552 in Aerostar, respectively, and an excess of Ps.210,515 and Ps.347,469 in Airplan respectively.
For the year 2025, if the discount rate applied to the cash flow projections of each of the CGUs, would have been at +1% or -1% the cash flow projections would have had an effect of an excess of Ps.159,893 and Ps.4,146,078 in Aerostar respectively and an excess of Ps.302,022 and Ps.413,174 in Airplan respectively. The recoverable amount of these CGUs would equal their carrying amount if the key assumptions changed as follows: the discount rate would change from 11.10% to 12.01% for Aerostar and from 14.61% to 22.04% for Airplan.
9.2) Basic terms and conditions of the concessions
Mexico:
The basic terms and conditions of each concession are the following:
| a. | The concession holder must undertake the construction, improvement and maintenance of the facilities in accordance with its Master Development Plan (MDP) and is required to update the plan every five years. (See Note 17.b). |
| b. | The concession holder may only use the airport facilities for the purposes specified in the concession and must provide services in accordance with all applicable laws and regulations and is subject to statutory oversight by the SCT. The concession holder shall pay a DUAC of 9% of the gross income of the concession holder, resulting from the use of public assets in accordance with the terms of the concessions as required by the applicable law. DUAC is presented in the consolidated income statement under “Cost of aeronautical services”. (See Note 4). |
| c. | Fuel services and fuel supply are to be provided by the Mexican Airport and Auxiliary Services Agency, a Decentralized Public Entity. |
| d. | The concession holder must grant access to and the use of specific areas of the airport to government agencies to perform their activities inside the airports. |
| e. | The concession may be terminated if the concession holder fails to comply with certain of the obligations imposed by the concession as established in Article 27 or for the reasons specified in Article 26 of the Airport Law. |
F-33
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
| f. | Revenues resulting from the concession are regulated and subject to a review process. See (Note 20.1.3). |
| g. | The terms and conditions of the regulations governing the operations of the Company may be modified by the SCT. |
Aerostar:
The purpose of the Aerostar concession (Agreement) is to operate the public airport safely by maintaining the highest possible levels of safety and protection at the LMM Airport, and promoting, facilitating and improving commerce, tourism and economic development. The Puerto Rico authorities, Aerostar and the other airlines have agreed to the terms and conditions of the LMM Airport Facility Contract. The concession period is 40 years as of the closing of the agreement assigning the Airport’s operating rights (February 27, 2013).
Under the Agreement, Aerostar has no rights to control in full the use of the Airport facilities, for example, airport facilities that are under the supervision of the port authority in Puerto Rico or internal or external security in certain areas and it is required to provide certain maintenance services within the airport.
As part of the Agreement, the authorities grant Aerostar the right to sublease the LMM Airport non-aeronautical areas and to collect and retain the fees, charges and payments and income arising from all subleased facilities.
According to the provisions of the Agreement, the Company has the right to collect the annual contributions of all airlines, which will be equal to the sum of the: a) platform use fees; b) landing fees; c) other leases, and d) international and domestic airport use fees.
The Agreement requires Aerostar to make a cash payment of USD2.5 million per year for the first five years after the first five years, the authority establishes a payment of “Annual Authority Income Share”, consisting of 5 % of the gross revenues of the airport obtained by Aerostar from the sixth year to the 30th year. From year 31st to 40th, this amount will increase to 10% of the airport’s gross revenues.
Airplan:
The object of the concession contract is the granting by the Civil Aeronautics of Colombia and in favor of Airplan of the concession for the administration, operation, commercial exploitation, adaptation, modernization and maintenance of the airports Antonio Roldán Betancourt, El Caraño, José María Córdova, Las Brujas, Los Garzones, and Olaya Herrera.
The term of execution of the contract extends from the date of signing of the act of commencement of execution (May 15, 2008) and until the date on which one of any of the following events occurs:
| ● | That the regulated revenues generated are equal to the expected regulated revenues, provided that by that time 15 years have elapsed from the date of execution of the certificate of commencement of execution. |
| ● | That 25 years have elapsed since the date of execution start certificate regardless of whether, for the time being, regulated revenues generated have not matched the value of the expected regulated revenues. |
| ● | If the regulated income generated equals the expected regulated revenue before 15 years have elapsed from the date of execution of the certificate of commencement of execution, the duration of execution of the certificate of commencement of execution and during this term the concessionaire must execute all the obligations under his charge under the concession contract. |
For purposes of the regulated revenue expected as defined in the concession contract, it must be taken into consideration that the expected regulated revenue will increase once each of the complementary works (mandatory or voluntary) is delivered to the grantor.
The grantors agree to assign the regulated and unregulated revenues corresponding to each of the airports to Airplan.
F-34
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The concessionaire is obliged, with the grantor to pay, during the period of the contract, a consideration equivalent to 19% of the gross income of the concessionaire.
The concession granted by virtue of this contract imposes on the concessionaire the general obligation to administer, make commercial use and operate the airports in accordance with the minimum specifications set forth in the Contract and at their own risk.
The determination of the economic useful life of the intangible is subject to the percentage of execution of the revenues with respect to the total expected income of the financial model that the Company has. See Note 21.2 Useful life of the Airplan concession.
Contract of Trustee
For the administration of the resources of the Concession and the payment of the obligations in charge of the Concessionaire Airplan, it was forced to constitute a trust, to which it transfers all of its gross income received and all the resources of debt and capital that it obtains for the execution of the Concession.
The Trustee will maintain, in accordance with current accounting standards, a record of each and every one of the payments and transfers that are made to third parties or to the Concessionaire itself with charge to any of the accounts of the trust. The foregoing without prejudice to understand that the assignment of regulated income and non - regulated income that this agreement makes the Concession is made in favor of the Concessionaire and not the trust and that the debt and capital resources obtained by the Concessionaire should be adequately recorded as such in its own accounting and not in the Trust, since it is constituted solely for purposes of the administration of resources.
The constitution of the trust was made through the execution of an irrevocable mercantile trust and administration contract whose term will be the maximum authorized by Colombian commercial laws.
Note 10 – Short- and Long-Term Lease Liabilities:
The subsidiary ASUR Commercial, which was acquired and incorporated into the Company’s consolidation on December 11, 2025, has recognized a right-of-use asset for the lease agreements of LAX and JFK T8 in accordance with IFRS 16, due to the characteristics of the contracts, as they contain fixed conditions. The minimum rental payments under the lease agreements are determined as follows:
LAX:
The greater of: (i) the result of multiplying the square footage of the leased spaces by a base rate of either USD 0.210 or USD 0.240 (defined in the contract based on each terminal), which must be updated annually with inflation indices; or (ii) 85% of the “percentage rent,” which is determined based on a percentage of total revenues from the prior year (defined in the contract based on each terminal), less fixed expenses (tenant improvement allowances granted by the airport authority and the management fee) as defined in the contract. There is an additional contingent rent based on total revenues, which includes an extra 2% above the base percentage if annual commercial revenues of the units fall within the range of USD 35,000 to USD 45,000, and an increase of 4% if annual revenues exceed USD 45,000.
JFKT8:
The greater of: (i) a minimum rent of USD 30,000, which must be updated annually with inflation indices; or (ii) 85% of prior year revenues.
F-35
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
ORD and JFK T1:
In accordance with IFRS 16, the Company did not recognize a right-of-use asset for these contracts, as the negotiated lease terms included: a) a minimum rent based on minimum passenger traffic and b) a variable rent calculated as a percentage of the previous year´s revenues. As of December 31, 2025, The Company has not made any minimum payments because it has not reached the passenger volume stipulated in the contract and has therefore only made variability payments; consequently, all rent payments are considered variable.
Corporate offices in the USA:
As of December 31, 2025, ASUR Airports LLC has short term or low value leases for which it has not recognized a right of use asset. The amount of these leases for offices in the USA amounts to monthly payments of USD40 (approximately Ps. 726.).
Other lease agreements:
Corporate offices in Mexico:
Individual contract stipulating: i) a term of 5 years;ii) monthly rental payments of USD 29.2 (approximately Ps. 526);iii) a security deposit equivalent to two months’ rent;iv) the monthly base rent will increase annually beginning on the first anniversary of the commencement date, in line with the increase in the U.S. Consumer Price Index; and v) in the event of default on principal payments, late interest will accrue at the most recent U.S. dollar interest rate published by the Wall Street Journal under the Prime Rate, plus ten percentage points.
The right-of-use assets meet the definition of investment property and, as such, are presented in the statement of financial position, while lease liabilities are presented as separate line items in the statement of financial position and disclosed separately in the notes. As of December 31, 2025, the balances of right-of-use assets and lease liabilities are shown below:
|
|
Year ended |
||||
|
|
December 31, |
||||
|
|
2024 |
|
2025 |
||
Lease liabilitie |
|
|
|
|
|
|
Right-of-Use Vehicles under Lease Agreements |
|
Ps. |
22,496 |
|
Ps. |
31,558 |
Right-of-Use Assets under Lease Agreements |
|
|
— |
|
|
1,363,423 |
Current |
|
|
22,496 |
|
|
1,394,981 |
|
|
|
|
|
|
|
Non-Current |
|
|
|
|
|
|
Right-of-Use Assets under Lease Agreements |
|
Ps. |
— |
|
Ps. |
6,720,103 |
|
|
|
|
|
|
|
Depreciation |
|
Ps. |
2,583 |
|
Ps. |
7,146 |
|
|
|
|
|
|
|
Interest Expense (Included in Finance Cost) |
|
Ps. |
2,759 |
|
Ps. |
39,031 |
The lease liability derived from right-of-use assets under sublease agreements is initially measured at the present value of lease payments not paid at the commencement date, discounted using the interest rate implicit in the lease.
The lease liability is presented under Lease Liabilities (current) and Lease Liabilities (non-current) in the Consolidated Statement of Financial Position. Lease payments not included in the measurement of lease liabilities are recognized in the lines Investment Property Expenses or General and Administrative Expenses in the Consolidated Statement of Profit or Loss.
F-36
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Note 11 - Accounts payable and accrued expenses:
At December 31, 2024 and 2025, the balances are as follows:
|
|
|
December 31, |
|||
|
|
2024 |
|
2025 |
||
Suppliers |
|
Ps. |
325,701 |
|
Ps. |
624,413 |
Taxes payable |
|
|
712,448 |
|
|
535,837 |
Use rights of assets under concession |
|
|
355,809 |
|
|
506,881 |
Accounts payable to related parties (Note 16.1) |
|
|
101,266 |
|
|
98,507 |
Salaries payable |
|
|
234,133 |
|
|
288,670 |
Sundry creditors for services provided |
|
|
1,143,956 |
|
|
1,375,147 |
Accounts payable to contractors |
|
|
38,241 |
|
|
29,250 |
Total |
|
Ps. |
2,911,554 |
|
Ps. |
3,458,705 |
Since these accounts mature at a term of under one year, their fair value is considered to approximate their carrying value.
Note 12 - Bank loans:
Mexico:
On October 15, 2021, BBVA Bancomer granted a simple loan in the amount of Ps.2,000,000, which may be used for corporate expenses, with a term of 7 years, maturing in October 2028, at an annual interest rate equivalent to the 28-day TIIE plus an applicable margin of 140 basis points. On January 15, 2024, and April 15, 2024, the Company made payments of Ps.50,000, respectively.
On June 11, 2024, the Company renegotiated its debt with Banco BBVA Bancomer, for amount of Ps.1,750,000 the payment of principal will be made on the new maturity date, at an annual interest rate equivalent to the 28-day TIIE rate plus an applicable margin of 1.35 points, with a maturity on July 11, 2029, and a renegotiated fee of Ps.4,375, the evaluation was carried out to determine if there is a substantial change, the Company concluded the evaluation with no material impact (See Note19.14.1), The effective rate for this loan was calculated taking into account all initial fees, additional costs, and other associated expenses. The resulting annual effective rate is 9.19%.
Applicable margin. - If the net leverage index 1.4x is a) Less than 1.5X, the applicable margin will be 140 basis points, b) Between 1.5X and 2.5X, the applicable margin will be 165 basis points and c) greater than 2.5x, the applicable margin will be 190 basis points.
In terms of the credits in pesos granted by BBVA Bancomer, the Company is obliged to maintain a consolidated leverage level not exceeding 3.5x calculated as a total financial debt between the (operating profit calculated before taxes, interest expenses, plus depreciation plus amortization at consolidated level) EBITDA for the twelve months prior to the end of each quarter and a minimum interest coverage of 3.0x, calculated as EBITDA between the financial expenses associated with the total financial debt for the 12 months before the end of each quarter. During the year the Company fulfilled these financial obligations, on each quarterly measurement date. At December 31, 2024 and 2025, the Consolidated Leverage Ratio calculated under the contract was 0.7x and 1.4x, respectively, which does not exceed the established 3.5x. Meanwhile, the debt coverage ratio as of December 31, 2024 and 2025 was 12.5x and 16.9x, respectively, exceeding the minimum contractual requirement of 3.0x.
F-37
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
As of December 31, 2024 and 2025, the Company must refrain from creating, incurring, assuming or generating the existence of any lien on its property, assets and rights, as well as refrain from assuming obligations of third-party accounts, becoming jointly liable or granting any type of personal or fiduciary real guarantee to guarantee its own obligations or those of third parties that are relevant or may cause a relevant adverse effect on the payment of the credit. During the year, the Company has fulfilled these financial obligations.
On September 29, 2021, the Company acquires a loan with Banco Santander for Ps.2,650,000, maturing on September 28, 2024, subject to one the 28-day TIIE rate plus 1.50 points. On November 29, 2022, the Company makes advance payments of Ps.650.0 million without any penalty. On March 26, 2024, the Company renegotiated its debt with Santander for Ps.675,000, extending the term by one year, to make the payment of the principal on the due date, at an annual interest rate equivalent to the 28-day TIIE rate plus an applicable margin of 1.50 points, with a maturity on September 26, 2025. The evaluation was carried out to determine if there is a substantial change due to such renegotiation and concluded the evaluation with no material impact. The Loan was paid by the Company on September 26, 2025.
On September 26, 2025, the Company entered into a simple revolving credit line agreement with Banco Santander in the amount of Ps. 675,000, with principal repayment due at maturity on September 26, 2027, subject to a one-day TIIEF rate (Backward Looking in arrears, 5-day lookback) plus 1.50 basis points. The resulting annual effective rate is 9.22%.
On November 21, 2025, the Company entered into a current account credit agreement with Banco Santander in the amount of Ps. 3,500,000, with principal repayment due at maturity on February 22, 2026, subject to a one-day TIIEF rate (Backward Looking in arrears, 5-day lookback) plus 0.50 basis points. The loan was drawn down on November 24, 2025, covering a credit opening fee of Ps. 5,250. The Company settled this loan on December 11, 2025.
On December 3, 2025, the Company entered into a simple revolving credit line agreement with Banco Santander in the amount of Ps. 1,000,000, with principal repayment due at maturity on March 4, 2026, subject to a one-day TIIEF rate (Backward Looking in arrears, 5-day lookback) plus 0.50 basis points. The loan was drawn down on December 4, 2025, covering a credit opening fee of Ps. 1,500. The Company settled this loan on December 11, 2025.
In terms of the credit in pesos granted by Santander, the Company is obliged to maintain a leverage level on the last day of each fiscal quarter of no more than 3.5x and a minimum interest coverage ratio of 3.0x, both reasons calculated by the 12 months before each quarter. The calculation for the Leverage Ratio and Interest Coverage Ratio will be performed considering the Company’s share in the income/loss of its subsidiaries and other companies in which it holds interest. During the year 2024 and 2025, the Company fulfilled these financial obligations, on each quarterly measurement date. At December 31, 2024 and 2025, the Leverage Ratio calculated under the contract was 0.7.x and 1.4x, respectively, which does not exceed the 3.5x set. In turn, the Debt Coverage Ratio at December 31, 2024 and 2025 was 12.5x and 12.8x, respectively, covering the minimum required of 3.0x as stated in the contract.
On May 22, 2025, the Company entered into a loan agreement with BBVA México in the amount of Ps. 9,500,000, intended for general corporate use, maturing on May 21, 2027, with principal repayment in a single installment at maturity, subject to a 28-day TIIEF rate plus 1.25 basis points. The loan was drawn down on May 27, 2025, covering a structuring fee of Ps. 26,600 and a credit opening fee of Ps. 6,650. The Company may make early repayments without penalty, provided they exceed Ps. 100,000. The resulting effective annual rate is 8.92%.
Under the terms of the peso-denominated loan granted by BBVA México, the Company is required to maintain the following financial ratios: a net leverage ratio not greater than 3.5x as of the last day of each fiscal quarter, and a minimum interest coverage ratio of 3.0x, both calculated based on the twelve months preceding each quarter. The calculations of the leverage ratio and the interest coverage ratio will be carried out using the Company’s share in the results of its subsidiaries or other entities in which it holds an interest. During fiscal year 2025, the Company has compliedwith these financial covenants at each quarterly measurement date. As of December 31, 2025, the leverage ratio, calculated in accordance with the contract, was 1.4x, which does not exceed/exceeds the established 3.5x. Meanwhile, the debt coverage ratio as of December 31, 2025 was 9.6x, meeting the minimum contractual requirement of 3.0x.
F-38
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
On December 5, 2025, the Company entered into a Senior Credit Agreement with JPMorgan Chase Bank, N.A. in the amount of Ps. 6,390,000, at an annual interest rate equivalent to the 28-day TIIEF plus an applicable margin of 0.75 basis points, maturing in May 2027, covering a negotiation fee of Ps. 16,419 on July 31, 2025, and a credit opening fee of Ps. 22,573 on December 15, 2025.
On November 26, 2025, a negotiation fee of Ps. 119,029 was paid for a loan with JPMorgan in the amount of USD 936,000, which will be allocated to the Playa project.
There are no indication that the Company would have difficulty meeting its financial commitments on the loans for the next twelve months.
Airplan:
On June 1, 2015, the Company acquired a new long-term syndicated loan of COP440,000,000 (Ps.2,897,404) payable in 2027 with a three-year grace period for the payment of principal. The resulting effective annual rate is 14.09%.
The participants of this syndicated loan are:
|
|
Amount |
|
Entity |
|
(thousand of COP) |
|
Bancolombia, S. A. |
|
COP. |
150,000,000 |
Banco Itaú CorpBanca Colombia S.A. |
|
|
102,000,000 |
Banco Davivienda, S. A. |
|
|
90,000,000 |
Banco de Bogotá, S. A. |
|
|
37,000,000 |
Banco de Occidente, S. A. |
|
|
37,000,000 |
Banco Popular, S. A. (1) |
|
|
8,000,000 |
Banco AV Villas, S. A. |
|
|
8,000,000 |
Servicios Financieros, S. A. |
|
|
8,000,000 |
|
|
COP. |
440,000,000 |
(1) |
In April 2023, Banco Popular, S. A. transferred the rights to Banco de Bogotá, S. A. of the syndicated loan, through the signing of promissory notes, under the same conditions. |
In April 2022, the Company anticipates a capital payment of COP 149,999,914 (Ps.794,510), without any penalty, as follows:
|
|
Amount |
|
Financial entity |
|
(thousand COP) |
|
Bancolombia, S. A. |
|
COP. |
51,136,744 |
Banco Itaú CorpBanca Colombia S.A. |
|
|
34,772,986 |
Banco Davivienda, S. A. |
|
|
30,682,039 |
Banco de Bogotá, S. A. |
|
|
12,613,358 |
Banco de Occidente, S. A. |
|
|
12,613,366 |
Banco Popular, S. A. |
|
|
2,726,835 |
Banco AV Villas, S. A. |
|
|
2,727,293 |
Servicios Financieros, S. A. |
|
|
2,727,293 |
|
|
COP. |
149,999,914 |
F-39
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
In April 2024, the Company anticipates a capital payment of COP 100,000,000 (Ps.438,712), without any penalty, as follows:
|
|
Amount |
|
Financial entity |
|
(thousand COP) |
|
Bancolombia, S. A. |
|
COP. |
34,090,909 |
Banco Itaú CorpBanca Colombia S.A. |
|
|
23,181,818 |
Banco Davivienda, S. A. |
|
|
20,454,545 |
Banco de Bogotá, S. A. |
|
|
10,227,273 |
Banco de Occidente, S. A. |
|
|
8,409,091 |
Banco AV Villas, S. A. |
|
|
1,818,182 |
Servicios Financieros, S. A. |
|
|
1,818,182 |
|
|
COP. |
100,000,000 |
Financial obligations
Airplan is obligated throughout the term of the credit to comply with the following financial commitments:
Maintain long-term financial indebtedness limited to this syndicated loan operation: This consists of the sum of the balances payable by the debtor during the term of the syndicated loan, as a result of long- and short-term financial indebtedness, the amount of which may not exceed the sum of COP 440,000,000 (Ps.2,897,404).
Maintain the capital structure: This addresses the relationship between capital and debt that the debtor must meet in relation to the project throughout the term of the loan, in such a way that the result of the financial indicator Capital 1 (Capital + debt) is equal to or higher than 16%. As of December 31, 2024 and 2025, the capital structure ratio was 61.1% and 68.2%, respectively.
Maintain the index of debt coverage: This refers to the indicator that the debtor must maintain during the entire term of the loan, defined as: EBITDA - Taxes / Debt service 2: 1.2.
As of December 31, 2024 and 2025, the Company has complied with the debt coverage indicator, which was 4.4x and 4.0x, respectively.
There are no indication that the Company would have difficulty meeting its financial commitments on the loans for the next twelve months.
Aerostar
On December 30, 2020, Aerostar obtained an unsecured revolving credit line with Banco Popular de Puerto Rico for USD 20,000 (approximately Ps.399,010), for a term of three years and the possibility of making prepayments at any moment during the term of the contract, with interest at Prime rate plus 0.50% and the Company will pay 0.15% for unused credit line, which will be calculated on the average amount of unused principal during the year.
On November 15, 2023, Aerostar renewed the secured revolving credit line with Banco Popular de Puerto Rico of USD 20,000 (Ps.338,380, approximately), with a maturity date December 29, 2026. The interest is calculated at the interest rate that fluctuates between 0.5% and 3.0% plus a default interest rate of 2.0%. Aerostar is required to maintain a debt coverage ratio of 1:00 at the end of each quarter. As of December 31, 2024, the Company did not use the credit line.
On November 26, 2024, Aerostar renewed the secured revolving credit line with Banco Popular de Puerto Rico of USD 10,000 (Ps.207,862 approximately), with a maturity date December 18, 2027. The interest is calculated at the interest rate that fluctuates between 0.75% and 3.0% plus a default interest rate of 2.0%. Aerostar is required to maintain a debt coverage ratio of 1:00 at the end of each quarter. During 2025, the Company has complied with the debt coverage indicator. As of December 31, 2025, the Company did not use the credit line (See Note 20.2).
F-40
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
There are no indication that the Company would have difficulty meeting its financial commitments on the loans for the next twelve months.
As of December 31, 2024, these credit lines have been disposed of as shown as follows.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Credit line used |
|
Credit line balance |
|
Principal |
|
Commissions and |
|
Term |
|
Fair |
|||||||||
Bank |
|
at 12/31/2024* |
|
used in pesos |
|
amortization in pesos |
|
interests - Net |
|
Short |
|
Long |
|
value |
|||||||
Santander, S. A. |
|
|
|
|
Ps. |
675,000 |
|
|
— |
|
Ps. |
180 |
|
Ps. |
675,180 |
|
|
— |
|
Ps. |
695,344 |
BBVA Bancomer, S. A. |
|
|
|
|
|
1,850,000 |
|
Ps. |
(100,000) |
|
|
(1,685) |
|
|
10,310 |
|
Ps. |
1,738,005 |
|
|
1,803,915 |
Total México |
|
|
|
|
Ps. |
2,525,000 |
|
Ps. |
(100,000) |
|
Ps. |
(1,505) |
|
Ps. |
685,490 |
|
Ps. |
1,738,005 |
|
Ps. |
2,499,259 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bancolombia, S. A. |
|
COP |
23,148,166 |
|
Ps. |
294,742 |
|
Ps. |
(149,557) |
|
Ps. |
760 |
|
Ps. |
760 |
|
Ps. |
145,184 |
|
Ps. |
110,615 |
Banco Itaú CorpBanca Colombia S.A. |
|
|
15,740,196 |
|
|
200,423 |
|
|
(101,701) |
|
|
516 |
|
|
516 |
|
|
98,722 |
|
|
75,216 |
Banco Davivienda, S. A. |
|
|
13,888,400 |
|
|
176,844 |
|
|
(89,737) |
|
|
455 |
|
|
455 |
|
|
87,107 |
|
|
66,367 |
Banco de Bogotá, S. A. |
|
|
6,942,087 |
|
|
88,412 |
|
|
(44,872) |
|
|
228 |
|
|
228 |
|
|
43,541 |
|
|
33,173 |
Banco de Occidente, S. A. |
|
|
5,709,271 |
|
|
72,700 |
|
|
(36,892) |
|
|
187 |
|
|
187 |
|
|
35,808 |
|
|
27,282 |
Banco AV Villas, S. A. |
|
|
1,234,525 |
|
|
15,719 |
|
|
(7,977) |
|
|
40 |
|
|
40 |
|
|
7,743 |
|
|
5,899 |
Servicios Financieros, S. A. |
|
|
1,234,525 |
|
|
15,719 |
|
|
(7,977) |
|
|
40 |
|
|
40 |
|
|
7,743 |
|
|
5,899 |
Total Airplan |
|
COP |
67,897,170 |
|
Ps. |
864,559 |
|
Ps. |
(438,712) |
|
Ps. |
2,226 |
|
Ps. |
2,226 |
|
Ps. |
425,848 |
|
Ps. |
324,451 |
|
|
|
|
|
Ps. |
3,389,559 |
|
Ps. |
(538,712) |
|
Ps. |
721 |
|
Ps. |
687,716 |
|
Ps. |
2,163,853 |
|
Ps. |
2,823,710 |
(*) Foreign currencies expressed in thousands.
At December 31, 2025, these credit lines have been disposed of as shown as follows:
|
|
Credit line used |
|
Credit line balance |
|
Principal |
|
Commissions and |
|
Term |
|
Fair |
|||||||||
Bank |
|
at 12/31/2025* |
|
used in pesos |
|
amortization in pesos |
|
interests - Net |
|
Short |
|
Long |
|
value |
|||||||
Santander, S. A. |
|
|
|
|
Ps. |
675,000 |
|
|
— |
|
Ps. |
820 |
|
Ps. |
820 |
|
Ps. |
675,000 |
|
Ps. |
676,809 |
Santander, S. A. |
|
|
|
|
|
675,000 |
|
Ps. |
(675,000) |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
Santander, S. A. |
|
|
|
|
|
4,500,000 |
|
|
(4,500,000) |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
BBVA Bancomer, S. A. |
|
|
|
|
|
1,750,000 |
|
|
— |
|
|
(2,487) |
|
|
6,891 |
|
|
1,740,622 |
|
|
1,777,049 |
BBVA Bancomer, S. A. |
|
|
|
|
|
9,500,000 |
|
|
— |
|
|
13,558 |
|
|
36,168 |
|
|
9,477,390 |
|
|
9,644,868 |
JP Morgan, |
|
|
|
|
|
6,390,000 |
|
|
— |
|
|
(127,220) |
|
|
28,634 |
|
|
6,234,146 |
|
|
6,440,353 |
Total México |
|
|
|
|
Ps. |
23,490,000 |
|
Ps. |
(5,175,000) |
|
Ps. |
(115,329) |
|
Ps. |
72,513 |
|
Ps. |
18,127,158 |
|
Ps. |
18,539,079 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bancolombia, S. A. |
|
COP |
23,147,347 |
|
Ps. |
141,427 |
|
Ps. |
— |
|
Ps. |
746 |
|
Ps. |
50,404 |
|
Ps. |
91,769 |
|
Ps. |
110,377 |
Banco Itaú CorpBanca Colombia S.A. |
|
|
15,740,196 |
|
|
96,171 |
|
|
— |
|
|
506 |
|
|
34,275 |
|
|
62,402 |
|
|
75,054 |
Banco Davivienda, S. A. |
|
|
13,888,400 |
|
|
84,856 |
|
|
— |
|
|
446 |
|
|
30,242 |
|
|
55,060 |
|
|
66,224 |
Banco de Bogotá, S. A. |
|
|
6,942,906 |
|
|
42,422 |
|
|
— |
|
|
223 |
|
|
15,115 |
|
|
27,530 |
|
|
33,102 |
Banco de Occidente, S. A. |
|
|
5,709,271 |
|
|
34,884 |
|
|
— |
|
|
183 |
|
|
12,431 |
|
|
22,636 |
|
|
27,223 |
Banco AV Villas, S. A. |
|
|
1,234,525 |
|
|
7,542 |
|
|
— |
|
|
40 |
|
|
2,688 |
|
|
4,894 |
|
|
5,887 |
Servicios Financieros, S. A. |
|
|
1,234,525 |
|
|
7,542 |
|
|
— |
|
|
40 |
|
|
2,688 |
|
|
4,894 |
|
|
5,887 |
Total Airplan |
|
COP |
67,897,170 |
|
Ps. |
414,844 |
|
Ps. |
— |
|
Ps. |
2,184 |
|
Ps. |
147,843 |
|
Ps. |
269,185 |
|
Ps. |
323,754 |
|
|
|
|
|
Ps. |
23,904,844 |
|
Ps. |
(5,175,000) |
|
Ps. |
(113,145) |
|
Ps. |
220,356 |
|
Ps. |
18,396,343 |
|
Ps. |
18,862,833 |
(*) Foreign currencies expressed in thousands.
As a result of the business combination in Airplan on October 19, 2017, a fair value of the syndicated loan, valued at its amortized cost, was determined, increasing its value by Ps. 605,382. The debt contracted in the original currency (the Colombian peso) plus this fair value adjustment at the date of the business combination, amounted to the following total in thousands of COP 535,125,402 (Ps.3,408,442).
In the fiscal year 2025, the Company maintained loans to finance operations and expansion projects.
F-41
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The variables used to determine the fair values of loans at December 31, 2025 and 2024 are as follows:
México:
2024 and 2025
| ● | TIIE and TIIEF 28 days Discount Rate as of December 31, 2024 and 2025. |
| ● | Probability of default of ASUR as of December 31, 2024 and 2025. |
| ● | Default Swaps (CDS) of Mexico as of December 31, 2024 and 2025. |
Level 2 of fair value hierarchy at December 31, 2024 and 2025.
Aerostar:
2024 and 2025
| ● | Yield Spreads to Maturity through the BB-rating curve by “industrials sector” at December 31, 2024 and 2025. |
Level 2 of fair value hierarchy at December 31, 2024 and 2025.
Airplan:
2024 and 2025
| ● | Reference Discount Rate in Colombia as of December 31, 2024 and 2025. |
| ● | Probability of default of ASUR as of December 31, 2024 and 2025. |
| ● | Credit Default Swaps (CDS) of Colombia as of December 31, 2024 and 2025. |
Level 2 of fair value hierarchy at December 31, 2024 and 2025.
Note 13 — Short and long-term documents:
As a result of including Aerostar in the consolidation, as from May 31, 2017, the following long-term document payable is recorded.
To finance a portion of the agreement payment to the Puerto Rico Authority, and certain other costs and expenditures associated with it, Aerostar signed an agreement for the private placement of bonds on March 22, 2013 in the original amount of Ps.4,471 million pesos (USD350 million) maturing on March 22, 2035 in accordance with the following conditions:
Performance |
|
2.39 |
% |
Spread credit (bps) |
|
+336 |
|
Coupon |
|
5.75 |
% |
F-42
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
On June 24, 2015, Aerostar signed an agreement for private placement of bonds in the original amount of Ps.737 million pesos (USD50 million), maturing on March 22, 2035, based on the following conditions:
Quoted yield |
|
6.75 |
% |
In May 2022, Aerostar modified the payment method of the agreement signed for the placement of bonds for USD50 million, which stipulated payments on a semi-annual basis and was modified to a single payment due on March 22, 2035, which did not represent any penalty for the Company and qualified as a renegotiation.
In May 2022, Aerostar authorized the private placement of bonds for an original amount of Ps.3,947,522 (USD200 million) guaranteed with a quoted yield of 4.92% maturing on March 22, 2035, the disposition of the resources was in July 2022. Aerostar is financially obligated throughout the term of the bond, to maintain a debt coverage ratio greater than 1.0x with the measurement date of each quarterly closing. As of December 31, 2024, and 2025 the debt coverage ratio was 2.1x and 2.0x, respectively.
At December 31, 2024 the long-term debt is shown as follows:
|
|
Original debt |
|
Interest |
|
Credit line |
|
Principal amortization |
|
Interest |
|
Term |
|
Fair |
||||||||||
|
|
used in thousand USD |
|
in thousand USD |
|
in pesos |
|
in pesos |
|
in pesos |
|
Short |
|
Long |
|
value |
||||||||
Bond |
|
$ |
400,000 |
|
$ |
(3,961) |
|
Ps. |
6,601,077 |
|
Ps. |
(224,914) |
|
Ps. |
(82,332) |
|
Ps. |
386,998 |
|
Ps. |
5,906,833 |
|
Ps. |
6,662,935 |
Bond |
|
|
200,000 |
|
|
2,733 |
|
|
4,157,240 |
|
|
— |
|
|
56,816 |
|
|
56,816 |
|
|
4,157,240 |
|
|
4,053,056 |
|
|
$ |
600,000 |
|
$ |
(1,288) |
|
Ps. |
10,758,317 |
|
Ps. |
(224,914) |
|
Ps. |
(25,516) |
|
Ps. |
443,814 |
|
Ps. |
10,064,073 |
|
Ps. |
10,715,991 |
At December 31, 2025 the long-term debt is shown as follows:
|
|
Original debt |
|
Interest |
|
Credit line |
|
Principal amortization |
|
Interest |
|
Term |
|
Fair |
||||||||||
|
|
used in thousand USD |
|
in thousand USD |
|
in pesos |
|
in pesos |
|
in pesos |
|
Short |
|
Long |
|
value |
||||||||
Bond |
|
$ |
400,000 |
|
$ |
(3,144) |
|
Ps. |
5,540,143 |
|
Ps. |
(263,130) |
|
Ps. |
(56,592) |
|
Ps. |
356,291 |
|
Ps. |
4,864,130 |
|
Ps. |
5,568,220 |
Bond |
|
|
200,000 |
|
|
2,733 |
|
|
3,600,240 |
|
|
— |
|
|
49,203 |
|
|
49,203 |
|
|
3,600,240 |
|
|
3,575,920 |
|
|
$ |
600,000 |
|
$ |
(411) |
|
Ps. |
9,140,383 |
|
Ps. |
(263,130) |
|
Ps. |
(7,389) |
|
Ps. |
405,494 |
|
Ps. |
8,464,370 |
|
Ps. |
9,144,140 |
Inputs:
2024 and 2025:
Corporate risk through Yield Spreads to Maturity of comparable bonds of the “Transportations and Logistics” sector.
Level 2, of fair value hierarchy in 2024 and 2025.
Methodology:
The following methodology was used to determine fair value in the terms of IFRS 13 the valuation technique used is one recognized in the financial environment (estimated future cash flows discounted at their present value) using market information available at the valuation date.
F-43
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Note 14 - Stockholders’ equity:
At December 31, 2024 and 2025, the minimum fixed capital with no withdrawal rights is of Ps.1,000 and the variable portion is of Ps.7,766,276 (nominal figure) comprised for 300,000,000 common, nominative Class I shares no par value, wholly subscribed and paid in. At December 31, 2024 and 2025, no Class II shares have been issued. Both classes of shares will have the characteristics determined at the Shareholders’ meeting where issuance is approved and they are integrated as shown as follows:
|
|
|
|
|
|
Capital stock as of |
||||
|
|
Total shares |
|
December 31, |
||||||
Description |
|
2024 |
|
2025 |
|
2024 |
|
2025 |
||
“B” Series |
|
277,050,000 |
|
277,050,000 |
|
Ps. |
7,173,079 |
|
Ps. |
7,173,079 |
“BB” Series |
|
22,950,000 |
|
22,950,000 |
|
|
594,197 |
|
|
594,197 |
Total |
|
300,000,000 |
|
300,000,000 |
|
Ps. |
7,767,276 |
|
Ps. |
7,767,276 |
All ordinary shares confer the same rights and obligations on the holders of each series of shares. Series BB shares have voting shares and other rights, such as the right to elect two members of the Board of Directors, and Series B shareholders are entitled to appoint the remaining members of the Board of Directors. Series BB may not represent more than 15% of the Company’s capital stock.
Legal reserve
The Company is legally required to allocate at least 5% of its unconsolidated annual net income to a legal reserve fund. This allocation must continue until the reserve is equal to 20% of the issued and outstanding capital stock of the Company. Mexican corporations may only pay dividends on retained earnings after the reserve fund for the year has been set up.
Reserve for acquisition of shares
The reserve for acquisition of shares represents the reservation authorized by the stockholders for the Company to purchase its own shares subject to certain criteria set forth in the bylaws and the Securities Market Law. In the Ordinary General Assembly held on April 23, 2025 it was resolved to use the share repurchase reserve to declare dividends. As of December 31, 2025, there is no balance in the account, and as of December 31, 2024, the balance of the share repurchase reserve amounted to Ps.23,191,198.
Dividends
In the Ordinary General Stockholders’ Meeting held on April 18, 2023, the Company’s shareholders agreed to pay an ordinary cash dividend of Ps.2,979,000, as well as to approve the payment of an extraordinary nominal dividend of Ps.3,000,000, in both cases they will not cause Income Tax (ISR) for coming from CUFIN and its payment was on May 31, 2023 and November 29, 2023, respectively.
In the Ordinary General Stockholders’ Meeting held on April 24, 2024, the Company’s shareholders agreed to pay an ordinary cash dividend of Ps.3,277,800, as well as to approve the payment of an extraordinary nominal dividend of Ps.3,000,000, in both cases they will not cause Income Tax (ISR) for coming from CUFIN and its payment was on May 29, 2024 and June 26, 2024, respectively.
F-44
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
At the Ordinary General Shareholders’ Meeting held on April 23, 2025, the Company’s shareholders approved the payment of an ordinary cash dividend in the amount of Ps.15,000,000, sourced from accumulated retained earnings and the share repurchase reserve, which was paid on May 29, 2025. In addition, the shareholders approved the payment of extraordinary dividends from the share repurchase reserve in the amounts of Ps.4,500,000 and Ps. 4,500,000 nominal, respectively. In both cases, no Income Tax (ISR) will be incurred, as the dividends were sourced from CUFIN, and the payments were made on September 30, 2025, and November 27, 2025, respectively.
Dividends are tax free if paid from the CUFIN. Dividends paid in excess of the CUFIN balances are subject to tax equivalent to 42.86%. Tax due is payable by the Company and may be credited against IT for the year or IT for the two immediately following fiscal years. Dividends paid from previously taxed earnings are not subject to tax withholding or payment. Dividends paid that come from profits previously taxed by the ISR will not be subject to any withholding or additional tax payment. The Income Tax Law (LISR or ITL) establishes the obligation to maintain the CUFIN with the profits generated until December 31, 2013 and start another CUFIN with the profits generated as of January 1, 2014. At December 31, 2024 and 2025, the companies CUFIN is Ps.30,171,752 and Ps.17,933,778, respectively, whereas the combined contribution capital account (CUCA, by its initials in Spanish) amounts Ps.58,307,032 and Ps.60,458,561, respectively.
In the event of a capital reduction, any excess of stockholders’ equity over paid-in capital contribution account balances is accorded the same tax treatment as dividends, in accordance with the procedures provided for in the Income Tax Law.
Dividends from foreign subsidiaries are declared in accordance with the cash flow generated from previous years. The payment of dividends is subject in all cases to their investment plans, their financial situation and the approval of the Board of Directors and the corresponding Stockholders’ Meeting. Dividends paid will be subject to 30% income tax in Mexico and the tax will be paid by the Company.
Retained earnings
Substantially, all consolidated Company earnings were generated by its Subsidiaries. Retained earnings can be distributed to the Company’s shareholders to the extent that the subsidiaries have distributed earnings to the Company.
Note 15 - Current and Deferred Income Tax (ISR):
The Company does not consolidate its results for tax purposes.
| a. | Income Tax (IT) |
Mexico:
In 2023, 2024 and 2025, the Company determined tax profits in its subsidiaries in the amounts of Ps.11,620,031, Ps.16,969,158 and Ps.15,616,291, respectively. In 2023, 2024 and 2025, the tax profits were partially offset with the amortization of tax losses in the amounts of Ps.186,912, Ps.162,727 and Ps.172,850, respectively, with the exception of Minatitlan Airport, which tax losses for the year 2024 and 2025 amount to Ps.22,512 and Ps.32,635, respectively.
The subsidiaries that at December 31, 2023, 2024 and 2025, have not assessed income tax due to the tax loss carryforwards, are Minatitlan and Cozumel (in 2024).
Taxable income differs from the book income due to temporary and permanent differences arising from the different bases for the recognition of the effects of inflation for tax purposes and from the permanent effects of items affecting only the book or tax results.
The ITL establishes that the applicable income tax rate is 30% on the taxable income.
F-45
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The Company has performed the evaluation of the Preferential Tax Regimes and has determined at December 31, 2024 and 2025, it is not applicable because it does carry out a business activity, in the case of the investment in the airport of Puerto Rico, and that passive income does not represent more than 20% of its total income.
In accordance with the Company’s current policy regarding the distribution of future profits (See Note 19.17) in fiscal years 2024 and 2025 Cancún Airport recognized deferred income tax on the profits of its subsidiaries Aerostar, Airplan, and ASUR US Commercial, arising from its investment, for which dividends will be declared at some point in time. The amount of such provision as of December 31, 2024 and 2025 was Ps. 710,991 and Ps. 485,935, respectively.
Aerostar:
In 2023 and 2024 and 2025, it determined taxable income of Ps.261,532 and Ps.363,966, and Ps.460,668 respectively, which was partially offset by amortization of tax losses for Ps.235,378, Ps.363,966, and Ps.460,668 respectively. Aerostar maintains an agreement with the Puerto Rico Treasury Department, in which its operations are subject to Puerto Rico income tax of 10% under the provisions of Section 12 (a) of the Public-Private Partnership Act (Act) promulgated June 2009.
Airplan:
The Company determined taxable income (liquid income) in accordance with the tax law of Colombia for the period at December, 31, 2023, 2024 and 2025 of Ps.1,157,423, Ps.2,116,189 and Ps.2,292,560, respectively. The Company is subject in 2023, 2024 and 2025 to income taxes in Colombia of 35%.
ASUR US Commercial
The corporate income tax rate in the United States of America is 21%. ASUR US Commercial and its subsidiaries were acquired in December 2025 in accordance with IFRS 3. Since the subsidiaries of ASUR US Commercial are limited liability companies (LLCs) and have elected to be treated as pass-through entities for U.S. federal and state income tax purposes, the related taxes are the responsibility of their parent company in accordance with International Accounting Standard 12 “Income Taxes” (IAS 12).
The IT provision at December 31, 2023, 2024 and 2025 is as follows:
|
|
December 31, |
|||||||
|
|
2023 |
|
2024 |
|
2025 |
|||
Mexico: |
|
|
|
|
|
|
|
|
|
Current IT |
|
Ps. |
3,477,638 |
|
Ps. |
4,954,716 |
|
Ps. |
3,577,190 |
Deferred IT |
|
|
11,131 |
|
|
812,364 |
|
|
(51,318) |
IT provision Mexico |
|
Ps. |
3,488,769 |
|
Ps. |
5,767,080 |
|
Ps. |
3,525,872 |
Aerostar: |
|
|
|
|
|
|
|
|
|
Current Income Tax |
|
Ps. |
2,617 |
|
Ps. |
— |
|
Ps. |
— |
Deferred Income Tax |
|
|
34,441 |
|
|
(87,398) |
|
|
61,412 |
IT provision Aerostar |
|
Ps. |
37,058 |
|
Ps. |
(87,398) |
|
Ps. |
61,412 |
Airplan: |
|
|
|
|
|
|
|
|
|
Current IT |
|
Ps. |
405,098 |
|
Ps. |
737,198 |
|
Ps. |
845,201 |
Deferred IT |
|
|
13,218 |
|
|
(74,425) |
|
|
(398,240) |
IT provision Airplan |
|
Ps. |
418,316 |
|
Ps. |
662,773 |
|
Ps. |
446,961 |
Total IT provision |
|
Ps. |
3,944,143 |
|
Ps. |
6,342,455 |
|
Ps. |
4,034,245 |
F-46
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The reconciliation between the statutory and effective income tax rates is shown as follows:
|
|
December 31, |
|
|||||||
|
|
2023 |
|
2024 |
|
2025 |
|
|||
Consolidated income before provision for IT |
|
Ps. |
14,620,087 |
|
Ps. |
20,372,893 |
|
Ps. |
14,958,942 |
|
Plus (less): |
|
|
|
|
|
|
|
|
|
|
Net income before taxes of Airplan and Aerostar |
|
|
(2,422,843) |
|
|
(2,973,374) |
|
|
(2,191,341) |
|
Net income before taxes of subsidiaries in Mexico not subject to IT |
|
|
(151,574) |
|
|
(208,292) |
|
|
8,593 |
|
Income before provisions for income taxes |
|
|
12,045,670 |
|
|
17,191,226 |
|
|
12,776,194 |
|
Statutory IT rate |
|
|
30 |
% |
|
30 |
% |
|
30 |
% |
IT that would result from applying the IT rate to book profit before income taxes |
|
|
3,613,701 |
|
|
5,157,368 |
|
|
3,832,858 |
|
Non-deductible items and other permanent differences |
|
|
229,972 |
|
|
311,916 |
|
|
183,129 |
|
Annual adjustment for tax inflation |
|
|
(100,820) |
|
|
(134,548) |
|
|
(20,506) |
|
Accounting disconnect inflation |
|
|
(254,084) |
|
|
(278,647) |
|
|
(244,553) |
|
Income Tax (ISR) on Undistributed Earnings from Investments in Airplan, ASUR US Commercial (ASUR US), and Aerostar, arising from Dividend decrees recognized at Cancún Airport |
|
|
— |
|
|
710,991 |
|
|
(225,056) |
|
Effect by difference in rate of IT Aerostar |
|
|
37,058 |
|
|
(87,398) |
|
|
61,412 |
|
Effect by difference in rate of IT Airplan |
|
|
418,316 |
|
|
662,773 |
|
|
446,961 |
|
IT provision |
|
Ps. |
3,944,143 |
|
Ps. |
6,342,455 |
|
Ps. |
4,034,245 |
|
Effective IT rate |
|
|
33 |
% |
|
37 |
% |
|
32 |
% |
Following are the principal temporary differences with respect to deferred tax:
|
|
Year ended |
||||
|
|
December 31, |
||||
|
|
2024 |
|
2025 |
||
Deferred income tax asset: |
|
|
|
|
|
|
Temporary liabilities |
|
Ps. |
65,643 |
|
Ps. |
71,108 |
Bank loans' fair value |
|
|
36,597 |
|
|
31,694 |
Tax loss carry forwards |
|
|
126,688 |
|
|
87,321 |
Allowance for doubtful accounts |
|
|
68,007 |
|
|
68,324 |
|
|
|
296,935 |
|
|
258,447 |
Deferred income tax payable: |
|
|
|
|
|
|
Fixed assets and concession (*) |
|
|
(3,045,654) |
|
|
(2,682,600) |
Temporary assets |
|
|
(393,103) |
|
|
(368,102) |
Investment in foreign subsidiaries (Retained profits of Aerostar, Airplan and ASUR US - from 2025) |
|
|
(710,991) |
|
|
(485,935) |
|
|
|
(4,149,748) |
|
|
(3,536,637) |
Deferred income tax liability - Net |
|
Ps. |
(3,852,813) |
|
Ps. |
(3,278,190) |
(*)Includes Ps. 1,234,730 and Ps.1,102,163 from Aerostar from the periods 2024 and 2025, respectively, Likewise, the effects related to Airplan result in an asset of Ps.388,421 and a liability of Ps.22,242, respectively, for the same fiscal years.
F-47
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The net movements of the deferred tax asset and liability for the year are as follows:
|
|
Impairment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
provision |
|
|
|
|
Foreign |
|
|
|
|
Tax Loss |
|
|
|
|
|
|
|||
|
|
of loan |
|
Concession |
|
Currency |
|
Investment in |
|
carry |
|
|
|
|
|
|
|||||
|
|
portfolio |
|
Assets |
|
Conversion |
|
Subsidiaries |
|
forwards |
|
Others |
|
Total |
|||||||
Balances as of January 1, 2024 |
|
Ps. |
(68,653) |
|
Ps. |
2,975,531 |
|
Ps. |
(264,257) |
|
Ps. |
— |
|
Ps. |
— |
|
Ps. |
255,237 |
|
Ps. |
2,897,858 |
Conversion revaluation effect |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Airplan and Aerostar |
|
|
— |
|
|
— |
|
|
294,222 |
|
|
— |
|
|
— |
|
|
10,192 |
|
|
304,414 |
Consolidated income statement: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Airplan |
|
|
1,409 |
|
|
(69,852) |
|
|
1,594 |
|
|
— |
|
|
— |
|
|
(7,576) |
|
|
(74,425) |
Aerostar |
|
|
— |
|
|
41,285 |
|
|
(2,021) |
|
|
— |
|
|
(126,662) |
|
|
— |
|
|
(87,398) |
México |
|
|
(763) |
|
|
69,152 |
|
|
— |
|
|
710,991 |
|
|
(26) |
|
|
33,010 |
|
|
812,364 |
|
|
|
646 |
|
|
40,585 |
|
|
(427) |
|
|
710,991 |
|
|
(126,688) |
|
|
25,434 |
|
|
650,541 |
Balances as of December 31, 2024 |
|
Ps. |
(68,007) |
|
Ps. |
3,016,116 |
|
Ps. |
29,538 |
|
Ps. |
710,991 |
|
Ps. |
(126,688) |
|
Ps. |
290,863 |
|
Ps. |
3,852,813 |
Conversion revaluation effect |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Airplan and Aerostar |
|
|
— |
|
|
— |
|
|
(192,184) |
|
|
— |
|
|
12,704 |
|
|
(6,997) |
|
|
(186,477) |
Consolidated income statement: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Airplan |
|
|
— |
|
|
(395,172) |
|
|
4,956 |
|
|
— |
|
|
— |
|
|
(8,024) |
|
|
(398,240) |
Aerostar |
|
|
— |
|
|
35,701 |
|
|
519 |
|
|
— |
|
|
26,663 |
|
|
(1,471) |
|
|
61,412 |
Mexico(1) |
|
|
(317) |
|
|
183,126 |
|
|
— |
|
|
(225,056) |
|
|
— |
|
|
(9,071) |
|
|
(51,318) |
|
|
|
(317) |
|
|
(176,345) |
|
|
5,475 |
|
|
(225,056) |
|
|
26,663 |
|
|
(18,566) |
|
|
(388,146) |
Balances as of December 31, 2025 |
|
Ps. |
(68,324) |
|
Ps. |
2,839,771 |
|
Ps. |
(157,171) |
|
Ps. |
485,935 |
|
Ps. |
(87,321) |
|
Ps. |
265,300 |
|
Ps. |
3,278,190 |
| (1) | For fiscal year 2024, the Company recognized deferred income tax on non-taxable profits from investments in subsidiaries Aerostar and Airplan in the amount of Ps.710,991. For fiscal year 2025, the Company recognized a net deferred income tax benefit on non-taxable profits from investments in subsidiaries Aerostar, Airplan, and ASUR US in the amount of Ps.225,056. |
As of December 31, 2024, the Company decided to modify its dividend distribution policy for its foreign subsidiaries, to distribute dividends based on accumulated results and, accordingly, to recognize deferred income tax on its foreign subsidiaries Aerostar and Airplan. For its subsidiary ASUR US, this deferred income tax will be recognized beginning in 2025. (See Note 19.17).
|
|
As of December 31, |
|
||||
|
|
2024 |
|
2025 |
|
||
Undistributed profits |
|
Ps. |
2,369,969 |
|
Ps. |
1,619,783 |
|
Tax rate |
|
|
30 |
% |
|
30 |
% |
Deferred IT liabilities unrecognized with the previous temporary differences |
|
Ps. |
710,991 |
|
Ps. |
485,935 |
|
The temporary difference in favor arising from the determination of deferred tax on dividend distributions from the Colombian subsidiary was not recognized as an asset because its recoverability is uncertain. The amount determined as of December 31, 2025, totals Ps.472,301.
F-48
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
| b. | Recoverable taxes. |
At December 31, 2024 and 2025, the tax credits are Ps.110,327 and Ps.1,112,994, respectively.
Aerostar Tax loss Carry forwards:
In 2024, based on its financial and tax projections, the Company activated approximately 50% of the tax losses from previous years of its subsidiary Aerostar for an amount of Ps.126,662 (USD6,093 thousand). As of December 31, 2025, Aerostar still has tax losses for which deferred income tax has not been recognized because there is still no reasonable certainty of their recovery in future years.
|
|
USD |
|
|
|
|
thousand |
|
Year of |
Year of loss |
|
Amount |
|
expiration |
2016 |
|
13,873 |
|
2026 |
2017 |
|
11,124 |
|
2027 |
2018 |
|
5,300 |
|
2028 |
2020 |
|
12,424 |
|
2030 |
Total |
|
42,721 |
|
|
International tax reform
Pillar Two Model Rules - amendments to IAS 12 - the Organization for Economic Co-operation and Development (OECD) published the International Tax Reform - Pillar Two Model Rules, derived from the digitization of the economy, global model rules against base erosion and profit shifting (BEPS). The rules are designed to ensure that large multinational companies within the scope of the rules pay a minimum level of tax on income generated in a specified period in each jurisdiction where they operate. The rules apply a system of top-up taxation that raises the total amount of tax paid on an entity’s excess profits in a jurisdiction to the minimum rate of 15%.
The Company operates in four jurisdictions—Mexico, Colombia, Puerto Rico, and the United States—and expects that its situation in the Dominican Republic will be resolved in the coming year. As of December 31, 2024 and 2025, it is not within the scope of the Pillar Two model rules because such legislation has not yet been enacted in the jurisdictions where the Company operates. However, the Company has begun to analyze the potential future impacts once the legislation is enacted in those jurisdictions. In the case of Mexico and Colombia, the Company estimates that there will be no potential impact since the effective tax rate is above 15% (the minimum rate established by the Pillar Two model rules). In Puerto Rico, the rate is lower (10%) and was defined in the concession agreement. The Puerto Rico Treasury Department is in the process of engaging international tax consulting services for the implementation of the global minimum corporate tax agreement in Puerto Rico. In the case of the United States, the Company will evaluate the impact once the subsidiary ASUR Airports LLC becomes subject to tax at the time its profits are distributed. With respect to ASUR Dominicana, the Company will evaluate the impact if operations commence.
The Company has applied the mandatory exception to recognize and disclose information about deferred tax assets and liabilities arising from Pillar 2 income taxes as provided in the amendments to IAS 12 issued in May 2023.
The tax authorities routinely review the Company´s tax returns. Management believes that the tax returns may contain items that could be challenged by these tax authorities during the normal course of a tax audit.
If new information is identified in consequent periods that affects the Company´s current position on certain tax matters, the Company will record the impact in the period in which the new information is identified.
The Company and its subsidiaries have no recognized tax assets or liabilities as of December 31, 2024 and 2025 related to uncertain tax positions.
F-49
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Note 16 - Balances and transactions with related parties:
16.1) Balances payable
At December 31, 2024 and 2025, respectively, the balances payable to related parties shown in the consolidated statement of financial position are comprised as follows:
|
|
December 31, |
||||
|
|
2024 |
|
2025 |
||
Accounts payable and accumulated expenses (Note 9):(*) |
|
|
|
|
|
|
Inversiones y Técnicas Aeroportuarias, S. A. P. I. de C. V. |
|
|
|
|
|
|
(Shareholder/technical assistance) |
|
Ps. |
(101,266) |
|
Ps. |
(98,278) |
|
|
Ps. |
(101,266) |
|
Ps. |
(98,278) |
(*) |
These are accounts with terms of less than one year under similar market conditions. |
16.2) Transactions with related parties
At December 31, 2023, 2024 and 2025, the following transactions were held with related parties, which were set at the same prices and conditions as those that would have been used in comparable operations by third parties, as shown as follows:
|
|
December 31, |
|||||||
|
|
2023 |
|
2024 |
|
2025 |
|||
Commercial income: |
|
|
|
|
|
|
|
|
|
Autobuses de Oriente, S. A. de C. V. (Stockholder) |
|
Ps. |
20,162 |
|
Ps. |
19,352 |
|
Ps. |
18,998 |
Autobuses Golfo Pacífico, S. A. de C. V. (Stockholder) |
|
|
8,306 |
|
|
9,515 |
|
|
10,249 |
Coordinados de México de Oriente, S. A. de C. V. (Stockholder) |
|
|
202 |
|
|
60 |
|
|
6 |
|
|
|
|
|
|
|
|
|
|
Expenses: |
|
|
|
|
|
|
|
|
|
Technical assistance (Note 14.4) |
|
Ps. |
(715,462) |
|
Ps. |
(400,838) |
|
Ps. |
(400,912) |
|
|
|
|
|
|
|
|
|
|
Related parties: |
|
|
|
|
|
|
|
|
|
Administrative services |
|
|
|
|
|
|
|
|
|
Leasing |
|
Ps. |
(5,773) |
|
Ps. |
(6,206) |
|
Ps. |
(6,717) |
16.3) Compensation of key personnel
Key personnel include directors, members of the Board of Directors, and Committees. In the years ended on December 31, 2023, 2024 and 2025, the Company granted the following benefits to the key management personnel, the Board of Directors and the different Company Committees.
|
|
December 31, |
|||||||
|
|
2023 |
|
2024 |
|
2025 |
|||
Short term salaries and other benefits paid to key personnel(*) |
|
Ps. |
171,595 |
|
Ps. |
204,913 |
|
Ps. |
191,020 |
Fees paid to the Board of Directors and Committees |
|
|
10,261 |
|
|
8,698 |
|
|
12,068 |
(*) |
In fiscal years 2023, 2024 and 2025, includes costs of Ps.70,026, Ps.99,962 and Ps.75,280 and Ps.16,871, Ps.19,543 and Ps.20,048, respectively, for key personnel of directors of Aerostar and Airplan. |
As of December 31, 2023, 2024 and 2025, there are no balances pending payment to key personnel.
F-50
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
16.4) Technical assistance agreement
With regard to the sale of series “BB” shares to ITA held in 1998, the Company signed a technical assistance agreement with ITA, whereby the latter company and its stockholders agreed to provide management and consulting services and transfer knowledge and experience in the industry and technology to the Company in exchange for compensation.
The agreement is for an initial term of 15 years and renews automatically for subsequent five year periods, unless one of the parts issues the other a cancellation notice within a determined term prior to the programmed expiration date. The Company can only exercise its termination right through a resolution of the shareholders. ITA began to provide its services under said contract on April 19, 1999.
In accordance with the contract until December 31, 2023, the Company agreed to pay an annual compensation equivalent to the higher of a fixed amount or 5% of the consolidated income of the Company. Before deducting the compensation for technical assistance and before the comprehensive financial result, IT, depreciation and amortization, from 2024, the compensation was reduced to 2.5% of the consolidated income of the Company. Before deducting the compensation for technical assistance and before the comprehensive financial result, IT, depreciation and amortization, determined in accordance with financial reporting standards applicable in Mexico, the minimum fixed amount is of USD2.0 million (approximately Ps.36.0 million).
The minimum fixed amount will increase annually by the inflation rate of the United States plus the added value tax over the amount of the payment. The Company entered into an amendment agreement for technical assistance and transfer of knowledge, which establishes that the compensation will be paid on a quarterly basis beginning in January 1, 2008, and that such payments are to be deducted from the annual compensation.
At December 31, 2023, 2024 and 2025, the expenses for technical assistance amounted to Ps.715,462, Ps.400,838 and Ps.400,912, respectively which are recorded in the consolidated comprehensive income statement within the aeronautical and non-aeronautical service cost line. ITA also has the right to refund the expenses incurred during the provision of the services specified in the agreement. The ITA BB series shares were put in a trust in order to ensure compliance with the technical assistance agreement, among other things.
Note 17 - Commitments and contingencies:
Commitments
| a. | The Company began leasing office space on May 21, 2015, under a lease agreement. This agreement includes an available extension of 60 months. The monthly rent due is USD29.2 (Ps.526 approximately). As of December 11, 2025, the Company, through its subsidiary ASUR Commercial, maintains lease agreements at LAX, ORD, JFKT1 and JFKT8 airports. See Notes 1.1 and 19.8.2. |
The total minimum future payments derived from the non-cancellable lease agreement that shall be covered in the future are as follows:
|
|
|
|
|
ASUR |
|
|
|
Mexico |
|
Commercial |
||
Up to one year |
|
$ |
4,357 |
|
$ |
1,405,648 |
Between one and two years |
|
|
15,975 |
|
|
865,612 |
Total |
|
$ |
20,332 |
|
$ |
2,271,260 |
At December 31, 2024 and 2025, the amortization for the right-of-use included within the aeronautical and non-aeronautical service cost in the statement of income, were approximately Ps.6,206 and Ps.6,717, respectively.
F-51
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
| b. | On June 22, 2018, the Company received SCT approval for the MDPs for the five-year period from 2019 to 2023 in which the Company committed to carry out improvements. |
On December 11, 2023, the Company received approval from the SCT of the MDP for the five-year period between 2024 and 2028 in which the Company committed to make improvements.
As of December 31, 2025, the investment commitments of this MDP are as follows:
Period |
|
Amount |
|
|
2026 |
|
Ps. |
7,237,500 |
|
2027 |
|
|
5,163,300 |
|
2028 |
|
|
6,695,100 |
|
|
|
Ps. |
19,095,900 |
(1) |
(1)Figures adjusted as of December 31, 2025 based on the Construction Price Index (IPCO) in accordance with the terms of the MDP.
| c. | As part of the Concession Agreement, Aerostar has committed to fund and complete certain capital and repair projects with respect to the LMM Airport Facilities. Aerostar has no time restrictions to complete these projects, except that they must be made at any time during the period of validity of the Concession Agreement. As these projects are carried out, repairs will be recorded as expenses incurred or capitalized and depreciated according to their nature; consistent with the Company’s accounting policies. Capital projects will be capitalized as part of an intangible concession improvement asset and will be amortized over their useful lives or the remaining life of the Concession Agreement, whichever is less. Some commitments were excluded from the liability for initial obligations assumed due to factors of uncertainty, the variability of future costs and the extended period of time in which commitments can be fulfilled. As of December 31, 2023, 2024 and 2025, Aerostar fulfilled the agreed commitments. |
| d. | In accordance with the current concession agreements at JFK, the Company is required to (or will require its tenants to) invest at least USD 104.0 million in JFK T8 as capital investment for the construction and installation of improvements during the first three years of the term, which began on July 1, 2023. Additionally, the Company must invest at least USD 18.5 million in concession area improvements at JFK T8, USD 10.0 million in concession area improvements at JFK T1, and USD 2.5 million in other improvements at JFK T8. |
In accordance with the current concession agreements at Los Angeles International Airport (LAX), the Company is required to (or will require its tenants to) invest at least USD 11.1 million in capital investments for the construction and installation of improvements, which must be completed by January 31, 2028.
Contingencies
As of December 31, 2024 and 2025, the Company has confirmed that the results of its lawsuits cannot be accurately predicted as their due processes are currently ongoing and there are not enough elements to determine whether they could largely affect the Company’s financial position in the case of an adverse ruling.
| e. | The Company’s transactions are subject to Mexican Federal and State Laws as well as the Puerto Rico and Colombian Law due to its subsidiaries out of Mexico. |
F-52
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
| f. | At the time that the Company was carrying out the competitive bidding process (1998) for the sale of shares of the Airport Groups, the SCT established and communicated that concessionaires could amortize for tax purposes the value of the concession up to 15% a year. In February 2012, the SCT estimated an amount due payable by Cancun in the amount of Ps.865 million against the ruling in question, because it considered that the determination of the 15% amortization was not valid in 2006 and 2007. The Company disagreed with the decision and filed an appeal to overturn this determination. However, in order to adhere to the amnesty program set forth in Transitory Article Three of the new Income Law for 2013, the Company partially desisted from the appeal as it relates to the income tax obligation, but not in regard to the determination of the additional distribution related to employees’ statutory profit sharing, which the Company continues to appeal. During September 2023, through a new resolution of the Deconcentrated Tax Audit Administration of Quintana Roo, determined that the amount of profit distribution is Ps.99.8 million. The Company considered this improper and initiated a nullity proceeding to clarify this decision. On October 16, 2025, the Company complied with a final requirement issued by the Regional Chamber of the Federal Court of Administrative Justice. Should the appeal be lost, payment of Ps.99.8 million could be demanded. As of December 31, 2025, the risk of the judge ruling against Cancún is remote. |
| g. | There are currently a number of labor suits in progress against the Company, mainly in relation to involuntary termination. Any sentences that might be handed down not favoring the interests of the Company do not represent significant amounts. The Company is in legal proceedings at the date of this report and a resolution has not been issued yet. |
| h. | On August 21, 2019, the Board of Commissioners of the COFECE (Federal Economic Competition Commission) notified Aeropuerto de Cancún, S. A. de C. V. of the resolution issued on July 25, 2019, which provides for the following: (i) administrative liability for having exercised the monopolistic practices described in article 56, section V of the Mexican Federal Economic Competition Law (“LFCE”) (refusal of access); (ii) the Company shall be imposed a fine of Ps.73 million. On the understanding that there is sufficient grounds for defense, the Company has contested the administrative sanction imposed by the COFECE by filing amparo proceedings. The Company considers that the amparo proceedings will not be resolved in a term lower than two years from the date of filing, and, therefore, it is under no obligation to pay the fine before the end of such proceedings. In November 2023, a specialized Federal judge granted Aeropuerto de Cancún constitutional protection against the COFECE decision and ordered the Plenary Session to review and justify whether the Company had indeed engaged in the monopolistic practice of “refusal to deal.” On November 21, 2025, the Court upheld the appealed ruling and granted the Cancún Airport an injunction, ordering the full National Antitrust Commission (CNA), which replaced COFECE, to issue a new resolution. As of December 31, 2025, the CNA was in the process of issuing this new resolution. The risk, should the lawsuit be unfavorable to the Company, amounts to Ps.73 million pesos. This amount is not recorded because the risk of requiring cash outflows to settle the obligation is remote. |
Note 18 - Basis for preparation:
The Company’s consolidated financial statements as of December 31, 2024 and 2025 and for the years ended 2023, 2024 and 2025 have been prepared in accordance with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standard Board (IASB) and its interpretations issued by the IFRS Interpretations Committee (IFRS IC).
18.1) Basis of measurement
The consolidated financial statements have been prepared on the historical cost basis. Except for certain financial instruments measured at amortized cost or at their fair value as explained in the accounting policies described below.
The consolidated financial statements have been prepared under the going concern basis.
F-53
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
18.2) Use of estimates and judgments
The preparation of consolidated financial statements requires Management of the Company to make judgments, estimates and assumptions that affect the application of accounting policies and the reported amounts of assets, liabilities, revenues and expenses. The areas involving a higher degree of judgment or complexity, or the areas where assumptions and estimates are significant to the consolidated financial statements, are described in Note 21.
Critical estimates and assumptions are reviewed regularly. Adjustments to the accounting estimates are recognized in the period in which the estimate is reviewed and in any future period affected.
Note 19 - Summary of the material accounting policies:
19.1) New standards and amendments
Amendments to IAS 21 – Non Convertibility
In August 2023, The IASB amended IAS 21 to help entities determine whether one currency is interchangeable with another and what spot exchange rate to use when it is not. The Company was not impacted by the adoption of these amendments and does not expect them to have an impact its financial statements in future periods.
Certain amendments to accounting standards have been issued, which are not effective for reporting periods through December 31, 2025, and have not been early adopted by the Company. These amendments are not expected to have a material impact on the Company’s current or future reporting periods and foreseeable future transactions.
The following presents the Group’s assessment of the impact of these new standards and amendments:
a) Amendments to the classification and measurement of financial instruments – amendments to IFRS 9 and IFRS 7 (effective for periods beginning on January 1, 2026).
On May 30, 2024, the IASB issued specific amendments to IFRS 9 and IFRS 7 to address recent practical questions and to include new requirements not only for financial institutions but also for corporate entities. These amendments:
| ● | Clarify the recognition and derecognition date of certain financial assets and liabilities, with a new exception for some financial liabilities settled through an electronic cash transfer system. |
| ● | Clarify and provide further guidance on assessing whether a financial asset meets the “solely payments of principal and interest” (SPPI) criterion. |
| ● | Add new disclosures for certain instruments with contractual terms that may change cash flows (such as financial instruments with features linked to the achievement of environmental, social, and governance objectives). |
| ● | Update disclosures for equity instruments designated at fair value through other comprehensive income (FVOCI). |
b) Amendments to IFRS 9 and IFRS 7 for nature-dependent electricity contracts (effective for annual periods beginning on January 1, 2026).
On December 18, 2024, the IASB issued specific amendments to IFRS 9 and IFRS 7 for nature-dependent electricity contracts, clarifying the own-use exception in this type of contracts, defining criteria for own consumption consideration, allowing hedge accounting to be applied to variable volumes if the applicable criteria are met, and requiring greater transparency in the information to be disclosed.
F-54
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
c) IFRS 19 Subsidiaries without Public Accountability: Disclosures (effective for annual periods beginning on January 1, 2027).
Issued in May 2024, IFRS 19 allows certain eligible subsidiaries of parent entities reporting under IFRS Accounting Standards to apply reduced disclosure requirements.
d) IFRS 18 Presentation and Disclosure in Financial Statements (effective for annual periods beginning on January 1, 2027).
IFRS 18 will replace IAS 1 Presentation of Financial Statements, introducing new requirements that will help achieve comparability of financial performance among similar entities and provide more relevant information and transparency to users. While IFRS 18 will not affect the recognition or measurement of items in the financial statements, its impacts on presentation and disclosure are expected to be widespread, particularly those related to the statement of profit or loss and the inclusion of management-defined performance measures within the financial statements
Management is currently evaluating the detailed implications of applying the new standard to the Company’s consolidated financial statements. Based on the preliminary high-level assessment performed, the following potential impacts have been identified:
Although the adoption of IFRS 18 will not affect the Company’s net income, it is expected that the grouping of income and expense items in the statement of profit or loss into the new categories will affect the way operating profit is calculated and reported. From the high-level impact assessment carried out by the Company, the following elements could potentially affect operating profit:
The line items presented in the primary financial statements could change as a result of applying the concept of a “useful structured summary” and the enhanced principles on aggregation and disaggregation. In addition, since goodwill will be required to be presented separately in the statement of financial position, the Group will disaggregate goodwill and other intangible assets and present them separately in the statement of financial position.
The Company does not expect a significant change in the information currently disclosed in the notes, since the requirement to disclose material information remains unchanged; however, the way information is grouped could change as a result of the aggregation/disaggregation principles. In addition, new significant disclosures will be required for:
| ● | (i) Management-defined performance measures. |
| ● | (ii) A breakdown of the nature of expenses for line items presented by function in the operating category of the statement of profit or loss; this breakdown is only required for certain types of expenses. |
| ● | (iii) For the first annual period of application of IFRS 18, a reconciliation of each line item in the statement of profit or loss between the restated amounts presented under IFRS 18 and the amounts previously presented under IAS 1. |
The Company will apply the new standard as of its mandatory effective date of January 1, 2027. Retrospective application is required, so comparative information for the year ending December 31, 2026 will be restated in accordance with IFRS 18.
F-55
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
19.2) Consolidation and equity method
The Company’s consolidated subsidiaries, for which it has shares as of December 31, 2024 and 2025, are shown below:
|
|
Shareholding |
|
|
|
|
|
percentage (%) |
|
|
Main activity |
Aeropuerto de Cancun, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Cozumel, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Merida, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Huatulco, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Oaxaca, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Veracruz, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Villahermosa, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Tapachula, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Minatitlan, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Cancun Airport Services, S. A. de C. V. (*) |
|
100 |
% |
|
Airport services |
Aerostar Airport Holdings, LLC |
|
60 |
% |
|
Airport services |
Sociedad Operadora de Aeropuertos Centro Norte, S.A. |
|
100 |
% |
|
Airport services |
ASUR Dominicana, LLC. (*) |
|
100 |
% |
|
Commercial |
RH Asur, S. A. de C. V. |
|
100 |
% |
|
Administrative services |
Servicios Aeroportuarios del Sureste, S. A. de C. V. |
|
100 |
% |
|
Administrative services |
Asur FBO, S. A. de C. V. (*) |
|
100 |
% |
|
Administrative services |
Caribbean Logistics, S. A. de C. V. (*) |
|
100 |
% |
|
Cargo services |
Cargo RF, S. A. de C. V. (*) |
|
100 |
% |
|
Cargo services |
ASUR US Commercial Airports, LLC (*)(**) |
|
100 |
% |
|
Commercial |
(*) |
These subsidiaries sub-consolidate at Cancun Airport. |
(**) |
This subsidiary acquired on December 11, 2025, ASUR Airports, LLC (URW Airports), with a 100% ownership interest, and ASUR Airports, which in turn holds an 81.38% equity interest in its subsidiary AUSR Airports JFKT8 Innovation Partners, LLC. |
Relevant information on ASUR Airports and its non-controlling interest
ASUR Airports records and reports its financial information under IFRS in U.S. dollars for purposes of consolidating its financial information with that of the Company, and performs a conversion into Mexican pesos. The exchange rate used at the close of fiscal year 2025 was 18.00 Mexican pesos per U.S. dollar.
F-56
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
As of December 31, 2025, the condensed financial information of ASUR Airports, in which there is a non-controlling interest, is presented below:
|
|
December 31, |
|
|
|
2025 |
|
Condensed statement of financial position |
|
|
|
Cash and cash equivalents |
|
$ |
424,680 |
Other current assets |
|
|
408,048 |
Total current assets |
|
|
832,728 |
Financial liabilities: |
|
|
|
Other current liabilities |
|
|
(1,747,213) |
Working capital |
|
|
(914,485) |
Invesment property - Net |
|
|
12,758,949 |
Other long term assets |
|
|
12,962 |
Lease liabilities |
|
|
(6,720,103) |
Other long term liabilities |
|
|
(102,413) |
Shareholders’ equity |
|
$ |
5,034,910 |
|
|
Year ended |
|
|
|
December 31, |
|
|
|
2025 |
|
Condensed statements of comprehensive income |
|
|
|
Non-aeronautical revenue |
|
$ |
133,143 |
Operating cost and expenses |
|
|
(46,968) |
Comprehensive financial cost – Net |
|
|
(67,662) |
Net income for the year |
|
|
18,513 |
Foreign currency translation |
|
|
(11,893) |
Total comprehensive income |
|
$ |
6,619 |
Net income for the year attributable to: |
|
|
|
Controlling interest |
|
$ |
19,421 |
Non-controlling interest |
|
|
(908) |
|
|
$ |
18,513 |
F-57
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Relevant information on Aerostar and significant non-controlling interest
Aerostar reports its financial information under IFRS for purposes of consolidating its financial information with that of the Company. The exchange rates used at the close of fiscal years 2025 and 2024 were 18.00 and 20.79 Mexican pesos per U.S. dollar, respectively.
The condensed financial information of Aerostar, where a significant non-controlling interest is held, at December 31, 2023, 2024 and 2025, is disclosed as shown as follows:
|
|
December, 31 |
|||||||
|
|
2023 |
|
2024 |
|
2025 |
|||
Condensed statement of financial position |
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
Ps. |
1,518,454 |
|
Ps. |
850,723 |
|
Ps. |
323,859 |
Restricted cash |
|
|
1,520,581 |
|
|
2,043,625 |
|
|
2,041,027 |
Other current assets |
|
|
165,822 |
|
|
369,479 |
|
|
395,851 |
Total current assets |
|
|
3,204,857 |
|
|
3,263,827 |
|
|
2,760,737 |
Financial liabilities: |
|
|
|
|
|
|
|
|
|
Current liabilities |
|
|
(1,033,248) |
|
|
(1,246,162) |
|
|
(1,211,118) |
Working capital |
|
|
2,171,609 |
|
|
2,017,665 |
|
|
1,549,619 |
Land, furniture and equipment |
|
|
123,796 |
|
|
199,544 |
|
|
230,356 |
Intangible assets, airport concessions - Net |
|
|
11,203,531 |
|
|
13,921,262 |
|
|
12,290,973 |
Other long term assets |
|
|
83,208 |
|
|
101,450 |
|
|
71,379 |
Long term debt |
|
|
(8,404,199) |
|
|
(10,064,073) |
|
|
(8,464,370) |
Other long term liabilities |
|
|
(14,295) |
|
|
(16,503) |
|
|
(13,375) |
Deferred income tax - Net |
|
|
(523,262) |
|
|
(574,176) |
|
|
(568,899) |
Shareholders’ equity |
|
Ps. |
4,640,388 |
|
Ps. |
5,585,169 |
|
Ps. |
5,095,683 |
|
|
Year ended December, 31 |
|||||||
|
|
2023 |
|
2024 |
|
2025 |
|||
Condensed statements of comprehensive income |
|
|
|
|
|
|
|
|
|
Revenue |
|
Ps. |
4,174,329 |
|
Ps. |
4,815,975 |
|
Ps. |
5,425,370 |
Operating cost and expenses |
|
|
(2,390,264) |
|
|
(3,097,961) |
|
|
(3,640,506) |
Comprehensive financial cost - Net |
|
|
(412,145) |
|
|
(421,812) |
|
|
(467,619) |
Net income tax |
|
|
(52,486) |
|
|
71,911 |
|
|
(77,827) |
Net income for the year |
|
|
1,319,434 |
|
|
1,368,113 |
|
|
1,239,418 |
Foreign currency translation |
|
|
(818,522) |
|
|
907,659 |
|
|
(875,980) |
Total comprehensive income |
|
Ps. |
500,912 |
|
Ps. |
2,275,772 |
|
Ps. |
363,438 |
On September 22, 2023, Aerostar’s Board of Directors approved a reimbursement of capital contributions for USD20,000 (Ps.255,167), and a decree and payment of a dividend for USD69,000 (Ps.1,225,463), corresponding to profits for the year 2023, of which 60% corresponds to the Company and 40% to the Avialliance partner, applying an IT withholding to the Company for USD3,053. The Company did not change its proportional shareholding in Aerostar, maintaining control with 60% of the capital stock, therefore a disposal was not considered and the cumulative effects of conversion were not reclassified from comprehensive income.
On October 7, 2024, Aerostar’s Board of Directors approved a reimbursement of capital contributions for USD20,000 (Ps.255,167), and payment of a dividend of USD60,000 (Ps.1,075,823), corresponding to profits for the year 2024, of which 60% corresponds to the Company and 40% to the Avialliance partner, applying a USD1,799 IT withholding to the Company. The Company did not change its proportional shareholding in Aerostar, maintaining control with 60% of the capital stock, therefore a disposal was not considered and the cumulative effects of conversion were not reclassified from comprehensive income.
F-58
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
On October 10, 2025, Aerostar’s Board of Directors approved a reimbursement of contributed capital for USD20,768 (Ps. 264,967), and a decree and payment of a dividend for USD USD29,232 (Ps.588,029), corresponding to profits for the year 2025, of which 60% corresponds to the Company and 40% to the Avialliance partner, applying an IT withholding to the Company for USD1,370 ((Ps.24,660). The Company did not change its proportional shareholding in Aerostar, maintaining control with 60% of the capital stock, therefore a disposal was not considered and the cumulative effects of conversion were not reclassified from comprehensive income.
As regards the non-controlling interest in Aerostar’s subsidiary, there are no significant restrictions on the possibility of gaining access to files or using them for the payment of liabilities.
Airplan Information
Airplan records and reports its financial information in IFRS as adopted in Colombia and their corresponding IFRIC issued by the IASB and in Colombian pesos. For purposes of consolidating Airplan in the Company, a conversion to Mexican pesos is performed. The exchange rate used at 2024 and 2025 year end was Ps.211.33 and Ps. 209.37 Colombian Peso per Mexican Peso, respectively.
| a. | Subsidiaries |
Subsidiaries are all entities over which the Company has control. The Company controls an entity when the Company is exposed to, or has rights to, variable returns from its involvement with the entity and has the ability to affect those returns through its power over the entity. Subsidiaries are fully consolidated from the date on which control is transferred to the Company. They are deconsolidated from the date that control ceases.
Intercompany transactions, balances, revenues and expenses due to transactions between the group companies were eliminated. The non-realized results were also eliminated. The subsidiaries’ accounting policies are consistent with the policies adopted by the Company. The Company uses the purchase method to recognize business acquisitions. The consideration for the acquisition of a subsidiary is determined based on the fair value of the net assets transferred, the liabilities assumed and the capital issued by the Company. The Company defines a business combination as a transaction in which it obtains control of a business, through which it has the power to govern and manage the relevant activities of the of assets and liabilities of said business with the purpose of providing return in the form of dividends, lower costs or other economic benefits directly to investors.
The consideration transferred in the acquisition of a subsidiary is the fair value of the assets transferred, the liabilities incurred and the equity interests issued by the Company. The consideration transferred includes the fair value of any asset or liability that results from a contingent consideration agreement. The identifiable assets acquired, the liabilities and contingent liabilities assumed in a business combination are initially measured at their fair value on the date of acquisition. The Company recognizes any non-controlling interest in the acquired entity based on the proportional part of the non-controlling interest in the net identifiable assets of the acquired entity.
Costs related to the acquisition are recognized as expenses in the consolidated statement of income as incurred.
Goodwill is initially measured as the excess of the consideration paid and the fair value of the non-controlling interest in the acquired subsidiary over the fair value of the identifiable net assets and the liabilities acquired. If the consideration transferred is less than the fair value of the net assets of the acquired subsidiary in the case of a purchase at a bargain price, the difference is recognized directly in the consolidated statement of income. If the business combination is reached in stages, the book value at the date of acquisition of the participation previously held by the Company in the acquired entity, is remeasured at its fair value at the acquisition date. Any loss or gain resulting from such remeasurement is recognized in the results of the year.
F-59
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
| b. | Changes in the interests of subsidiaries without loss of control |
Transactions with non-controlling interests that do not result in loss of control are accounted for as equity transactions, which are transactions with shareholders in their capacity as owners. The difference between the fair value of the consideration paid and the interest acquired in the carrying value of the net assets of the subsidiary is recorded in stockholders’ equity. Gains or losses on the sale of non-controlling interests are also recorded in stockholders’ equity.
| c. | Disposal of subsidiaries or associates |
When the Company loses control or significant influence over one entity, any retained interest in the entity is measured at fair value, recognizing the effect in income. Subsequently, the fair value is the initial carrying amount for the purpose of determining the retained interest as an associate, joint venture or financial asset, as appropriate. Additionally, the amounts previously recognized in Other Comprehensive Income (OCI) relating to those entities are canceled as though the Company had directly disposed of the related assets or liabilities. This means that the amounts previously recognized in OCI are reclassified to income for the period.
If the interest in an associate is reduced, but significant influence is maintained, only a proportional part of the amounts previously recognized in other comprehensive income will be reclassified to results as appropriate.
| d. | Acquisition in stages |
The additional acquisition in joint venture accounted under the equity method is considered a business combination conducted in stages, which means that the fair value of interest previously acquired was also revalued.
e.Associate
Associates are all entities over which the Group exercises significant influence but not control. Generally, in these entities the Group maintains a participation of between 20% and 50% of the voting rights. Investments in associates are valued using the equity method and are initially recognized at cost (see section h. Equity method).
On May 18, 2023, our subsidiary ASUR Dominicana LLC (ASUR Dominicana), a limited liability company incorporated under the laws of the State of Delaware, United States of America, and is also a subsidiary of Cancun Airport, entered into an investment agreement with Aeropuerto Bávaro International AIB, S.A.S. (AIB), CVC One, Inc., Grupo Abrisa, S.R.L., Muñoz Investment Banking Group Fund, LLC., Abraham Jorge Hazoury Toral and Alberto Alejandro Durán Santana, with the purpose of developing and constructing an international airport in Bávaro, Dominican Republic, agreeing to maintain a 25% stake in the company Aeropuerto Internacional de Bávaro AIB, S.A.S. The contract stipulates an estimated total investment of USD66 million once construction is completed. The initial investment was USD17.8 million. As of December 31, 2025, the construction license for the Bávaro International Airport, S.A.S. has not yet been authorized.
F-60
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The Company acquired contractual obligations through an investment agreement entered into on May 18, 2023, whose main objective is the development and construction of the Bávaro International Airport in the Dominican Republic. Said agreement mentions that the Company is obliged to acquire up to 25% stake (USD66 million) in the Bávaro International Airport Company AIB, S.A.S. As of December 31, 2025, the amount pending to be invested amounts to USD48.1 million, the agreement conditions that this pending obligation must be carried out once approval is obtained with the government where the Airport will be built, said approval does not It is under the control of the Company but of the Dominican Institute of Civil Aviation (IDAC), this future share purchase obligation qualifies as a derivative at fair value through profit or loss, which was not material for its recognition as of December 31, 2024 and 2025. ASUR Dominicana received from AIB a mortgage guarantee on part of the properties corresponding to the Bávaro International Airport AIB, for a total value of USD25 million as a guarantee for the initial payment of ASUR Dominicana’s capital contribution. Additionally, in the event that the construction of the Bávaro International Airport AIB is not carried out, within a period of three years from the initial payment of the capital contribution of the Company, or the Bávaro International Airport AIB, is revoked by the authorities in a definitive and unappealable manner, the current shareholders will purchase the shares of ASUR Dominicana for the total amount that has been paid for them. This right to recover the investment qualified as a financial asset measured at fair value, in addition to the recognition of the equity method within the investment in associates category. As of December 31, 2025, the fair value of the financial asset is recognized within the equity method of 25% of the investment. As of December 31, 2025, there is still no government approval for the construction of the Airport and the fair value of the financial asset is similar to the cost of the investment.
Under IFRS 11 investments in joint arrangements are classified as a joint operation or joint venture according to the contractual rights and obligations of each investor, instead of the legal structure of a joint arrangement.
| g. | Joint ventures |
Interest in joint ventures is accounted for using the equity method, subsequent to having been initially recognized at cost in the Consolidated Statement of Financial Position.
On February 20, 2020, our subsidiary Cancun Airport entered into a contractual agreement with Aviation Investments, LLC, to set up a joint venture through a separate legal entity called Airport Development Group, LLC, with each Company holding an interest of 50%. Initial investment amounted to USD500 (Ps.10,556). According to the agreement, decisions on the relevant activities of the entity require unanimous consent of both parties. The Company assessed the nature of the transaction and determined it was a joint venture. Joint ventures are recognized through the equity method. In July 2023, the joint contract with Airport Development Group, LLC was terminated and Aviation Investments, LLC reimbursed ASUR the total amount of its initial participation.
h. |
Equity method |
Under the equity method, investments are initially recognized at cost and subsequently adjusted to recognize the share in income/loss after acquisition, as well as changes in other comprehensive income. Dividends received or receivable from joint ventures are recognized as a reduction in the carrying amount of the investment.
When the Company’s share of losses in a joint venture equals or exceeds its interest in the joint venture (which includes any long-term interest that, in substance, forms part of the Company’s net investment in the joint venture), the Company does not recognize further losses, unless it has incurred obligations or made payments on behalf of the joint venture.
Unrealized gains from transactions between Group companies and its joint ventures are eliminated to the extent of the Group’s interest in the joint venture. Unrealized losses are also eliminated, unless the transaction shows evidence that the asset transferred is impaired. Accounting policies on the investments recorded under the equity method have been changed where necessary to ensure consistency with the policies adopted by the Company.
i. |
Capital reduction in foreign subsidiaries |
The capital reductions without change in the proportional percentage of the holding of the parent, is not considered a partial disposition. Since the Group maintains the same ownership percentage and continues to control the subsidiary abroad, the cumulative effects of the translation effect are not reclassified to the statement of comprehensive income.
F-61
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
19.3) Conversion of foreign currencies
Functional currency and reporting currency
Items included in the consolidated financial statements of each of the companies of the Company are measured in the currency of the primary economic environment in which the entity operates, i.e., its “functional currency” which is also the reporting currency. The consolidated financial statements are presented in thousands of Mexican pesos, which is the Company’s functional and reporting currency.
19.3.1) Consolidation of subsidiaries and associates with a functional currency different from the reporting currency
The results and financial position of Aerostar, Airplan and ASUR Dominicana (none of which handle a currency that corresponds to a hyperinflationary economy) expressed in a functional currency other than the reporting currency are converted to the reporting currency as follows:
| i. | The assets and liabilities recognized in the consolidated statement of financial position are translated at the exchange rate on the balance sheet date. |
| ii. | The stockholders’ equity in the consolidated statement of financial position is translated using the historical exchange rates. |
| iii. | Income and expenses recognized in the consolidated statement of income are translated at the average exchange rate for each year (unless that average is not a reasonable approximation of the effect of translating the results derived from the exchange rates prevailing at transaction dates, in which case the Company uses the respective rates). |
| iv. | The resulting exchange differences are recognized within OCI. |
Goodwill and fair value adjustments that arise on the date of acquisition of a foreign operation to measure them at fair value are recognized as assets and liabilities of the foreign entity and are converted at the closing exchange rate.
19.3.2) Transactions in foreign currency and results from exchange fluctuations
Operations carried out in foreign currency are recorded in the functional currency applying the exchange rates in effect at the transaction date or the exchange rate at the date of the valuation when the items are revalued.
Exchange differences arising from fluctuations in the exchange rates between the transactions and settlement dates, or the consolidated statement of financial position date, are recognized in the consolidated comprehensive income statement.
19.4) Cash and cash equivalents
Cash and cash equivalents include cash, bank deposits and other highly liquid investments with low risk of changes in value with immediate realization and original maturities of three months or less. As of December 31, 2024 and 2025, cash and cash equivalents consisted primarily of peso and dollar denominated bank deposits and peso denominated investment bonds issued by the Mexican Federal Government.
19.5) Fiduciary rights
For the administration of the resources of the Concession and the payment of the obligations in charge of Airplan a trust is constituted to which Airplan transfers all the gross income received as remuneration of the contract and all the debt and capital resources obtained for the execution of the concession.
F-62
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
19.6) Restricted cash
Restricted cash is presented as current if it is expected to be used within 12 months of the filing date. Any funds restricted beyond 12 months are recorded as non-current. Restricted cash includes cash that is restricted in immediate access and use. The nature of the restrictions includes pre-use approvals and restrictions imposed by bond placement contracts and federal agency funds related to capital spending.
Aerostar maintains cash restricted by requirement of the debt contracts in the amount of Ps.1,464,532 and Ps.1,293,363 and PFC in the amount of Ps.579,093 and Ps.747,664 as of December 31, 2024 and 2025, respectively. Mexico has no restricted cash balance as of December 31, 2024 and 2025.
In December 2025, the Subsidiary ASUR US Commercial, LLC in the United States established a trust in the amount of USD 3,000 to guarantee the acquisition transaction of the subsidiary ASUR Airports LLC. Its balance as of December 31, 2025 amounts to Ps. 54,004.
Restricted cash is presented in the statement of cash flows within financing activities in relation to the reserves to which it is obligated in accordance with the bond placement agreements and in investment activities, which are related to the investment in airport infrastructure. (See Note 5.1.)
19.7) Financial assets
| a. | Classification. - The Company classifies its financial assets into the following measurement categories: a) financial assets measured at amortized cost; b) financial assets subsequently measured at fair value (either through other comprehensive income or through profit or loss). At present, the Company does not hold any financial assets. This classification depends on the business model of the Company to manage its financial instruments and the terms of the instrument’s contractual cash flows. The Company reclassifies financial assets when, and only if, it changes its business model for the management of those assets. The Company’s financial assets are measured at amortized cost, since contractual terms comply with the SPPI (solely payment of principal and interest) requirement, and the Company’s business model whose objective is achieved by collecting cash flows. |
| b. | Measurement. - At initial recognition, financial assets at amortized cost are measured at fair value plus transaction costs that are directly attributable to their acquisition. Transaction costs of financial assets measured at fair value (through profit or loss or through other comprehensive income) are recognized in profit or loss as incurred. Gains and losses on assets measured at fair value are recorded in profit or loss or in other comprehensive income. Financial assets with embedded derivatives are considered as a whole if it is determined that the cash flows correspond exclusively to the payment of principal and interest. Accounts receivable are non-derivative financial assets with fixed or determinable payments that are not quoted in an active market. Investment in financial instruments and accounts receivables are included as current assets, except for maturities greater than 12 months following the date of the Statement of Financial Position. These are classified as non-current assets. Loans and, accounts receivable are initially recognized at fair value plus directly attributable transaction costs, and subsequently measured at amortized cost. |
| c. | Impairment. - Impairment losses are presented as net impairment losses within the operating result. Subsequent recoveries of previously canceled amounts are credited against the same line. For accounts receivable, the Company applies the simplified approach allowed by IFRS 9, which requires that the expected losses over the life of the instrument be recognized from the initial recognition of accounts receivable. (See Note 6.2.). |
F-63
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
19.8) Leasing
19.8.1) As lessor
ASUR Commercial LLC, a subsidiary, enters into agreements with third-party commercial operators (sublessees), through which it grants them the right to use spaces previously leased from the airport authority.
Under this structure:
| ● | The airport authority is the head lessor. |
| ● | ASUR Commercial is the lessee under the head lease and simultaneously an intermediate lessor under the sublease. |
| ● | The commercial operators are the sublessees. |
In accordance with IFRS 16, the sublease from ASUR Commercial to the operators is classified as an operating lease based on the right-of-use arising from the head lease (and not based on the original underlying asset). Revenue from operating leases is recognized in the consolidated statement of comprehensive income within non-aeronautical services revenue on a straight-line basis over the lease term.
The classification of the sublease is determined by assessing whether it transfers substantially all the risks and rewards associated with the right-of-use component.
The leasing of space carried out by the Company in its capacity as lessor in the terminals is documented through contracts, either with fixed monthly rents or fees based on the greater of a minimum monthly fee or a percentage of the lessees’ monthly revenues.
19.8.2) As lessee
The Company evaluates at the inception of each contract whether the contract is, or contains, a lease in accordance with IFRS 16. A contract is, or contains, a lease if it conveys the right to control the use of an identified asset for a period of time in exchange for consideration; such contracts qualify as a lease under IFRS 16.
As a lessee, the Company recognizes at the lease commencement date a right-of-use asset and a lease liability, except for short-term leases (term of less than 12 months) and leases of low-value assets, whose payments are recognized as an expense on a straight-line basis over the lease term.
Initial measurement.
The lease liability is initially measured at the present value of lease payments that have not been paid at the commencement date, discounted using the interest rate implicit in the lease, if that rate can be readily determined; otherwise, the Company’s incremental borrowing rate is used.
Lease payments included in the measurement of the liability comprise:
| ● | Fixed payments (including in-substance fixed payments); |
| ● | variable payments that depend on an index or rate, measured using the index or rate in effect at the commencement date; |
| ● | amounts expected to be payable under residual value guarantees; |
F-64
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
| ● | the exercise price of a purchase option when it is reasonably certain that the option will be exercised; and |
| ● | payments of penalties for terminating the lease, if the lease term reflects the exercise of that option. |
The right-of-use asset included in the measurement comprises:
| ● | the initial amount of the lease liability; |
| ● | lease payments made at or before the commencement date, less any incentives received; |
| ● | initial direct costs; and |
| ● | estimates of costs to dismantle or restore the asset, when applicable. |
Determination of the incremental borrowing rate
The incremental borrowing rate corresponds to the interest rate that the Company would have to pay to obtain financing for a similar term and with similar collateral to obtain an asset of comparable value to the right-of-use asset in a similar economic environment.
To determine this rate, the Company considers its credit risk profile, the lease term, the currency of the contract, and the economic environment in which it operates.
Subsequent measurement
Subsequently, the lease liability is increased by the accrual of interest and reduced by payments made. The liability is remeasured when:
| ● | there is a change in future payments resulting from changes in an index or rate; |
| ● | the lease term is modified; |
| ● | the assessment of the exercise of purchase, renewal, or termination options changes; or |
| ● | the lease contract is modified. |
The right-of-use asset is depreciated on a straight-line basis over the lease term or the useful life of the underlying asset, whichever is shorter, unless the Company is reasonably certain to exercise a purchase option, in which case it is depreciated over the useful life of the asset.
ASUR Commercial’s subsidiaries have recognized a right-of-use asset related to the LAX and JFK T8 contracts in accordance with IFRS 16 due to the characteristics of these contracts, given that they include fixed conditions within them. The minimum rent for lease payments is determined as shown below.
LAX:
The greater of: (i) the result of multiplying the square feet of the leased spaces by a base rate of either USD 0.210 or USD 0.240 (as defined in the contract based on each terminal), which must be updated annually based on inflation indices; or (ii) 85% of the “percentage rent,” which is determined based on a percentage of total revenues from the previous year (as defined in the contract based on each terminal) minus fixed expenses (tenant improvement allowances provided by the airport authority and the management fee) as defined by contract.
F-65
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
JFK T8:
The greater of: (i) a minimum rent of USD 30,000, which must be updated annually based on inflation indices; or (ii) 85% of the revenues from the previous year.
ORD and JFK T1:
Based on IFRS 16, the Company did not recognize a right-of-use asset for these contracts because the negotiated lease terms contemplate: (a) a minimum rent based on a minimum passenger traffic threshold and (b) a variable component calculated as a variable percentage based on revenues from the previous year. As of December 31, 2025, the Company has not made minimum payments because it has not reached the passenger thresholds specified in the contracts; therefore, it has only made variable payments. Consequently, the total rent is considered variable.
As of December 31, 2025, the Company identified the following favorable and unfavorable conditions in the lease agreements, such as retroactive rent adjustments, penalties, early termination rights and maintenance obligations; these conditions have been implicitly considered in the contractual flows used for the initial measurement of the right-of-use asset.
19.9) Land, furniture and equipment
Furniture and equipment are recorded at cost less accumulated depreciation and impairment loss. The cost includes expenses directly attributable to the acquisition of those assets and all costs associated with placing the assets in the location and in the condition necessary for them to operate as intended by Management.
Land is recorded at cost and it is not depreciated. Depreciation of other items of plant and equipment is calculated on the straight-line method based on the residual values over their estimated useful lives. The useful lives at the acquisition date of the furniture and equipment are as shown as below:
|
|
December 31, |
|
||
|
|
2024 |
|
2025 |
|
|
|
|
|
|
|
Furniture equipment |
|
10 to 20 |
% |
10 to 20 |
% |
Machinery |
|
10 to 20 |
% |
10 to 20 |
% |
Computer equipment |
|
20 to 33 |
% |
20 to 33 |
% |
Transportation equipment |
|
20 to 25 |
% |
20 to 25 |
% |
Improvements to leased premises |
|
10 |
% |
10 |
% |
The residual values, useful life and depreciation method are reviewed and adjusted, if necessary, on an annual basis.
19.10) Investment Properties
Right-of-use assets derived from leased properties that meet the definition of investment property are measured at fair value. For properties measured at fair value, the market value adopted by the Company is determined based on appraisals performed by qualified independent external experts, who value the Company’s terminals as of June 30 and December 31 of each year.
The data and assumptions used to determine the fair value of investment properties in accordance with IAS 40 are not similar to those used to determine lease liabilities under IFRS 16 for the same contracts, resulting in a fair value of investment properties lower than the lease liabilities.
F-66
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The Company used the Discounted Cash Flow (DCF) method under the income capitalization approach to determine the fair value of each lease right, specifically the future revenues for Los Angeles (LAX), Chicago (ORD), and New York (JFK T1 and JFK T8), based on the following assumptions: Operating and capital expenditures were projected using historical operating figures and forecasts. Projected cash flows for each operating lease were discounted using an appropriate discount rate. The cash flow of each lease extends from the Valuation Date through the expiration date of the operating contract.
Gains or losses arising from changes in the fair value of investment properties are recognized directly in the results of the period in which they are generated.
19.11) Intangible assets
19.11.1) Concessions
The airports that are part of the Company performed the analysis of the criteria that must be taken into account to know if they are within the scope of IFRIC 12:
| a. | The grantor controls or regulates what services the operator must provide with the infrastructure, to whom it must provide them at what price. |
| ● | The grantor does not need to have full price control; it is sufficient that the price is regulated by the grantor, the contract or the regulator. |
| ● | The grantor can control the price through a limit mechanism. |
| ● | The price can vary from fixed price arrangements to those based on a formula up to a maximum price. |
| b. | The grantor controls, through ownership, the right of benefits or otherwise, any significant residual interest in the infrastructure at the end of the term of the agreement. |
Taking into consideration the foregoing, these criteria are applicable to each of the concessions that the Company has, therefore it is considered that their measurement and determination will be within the scope of IFRIC 12. In addition to that, at the end of all the concessions, all assets become the property of the nation in which the concession is located.
Within the scope of IFRIC 12, the respective assets can be classified as:
| ● | Financial assets: when the licensor establishes an unconditional right to receive cash flows and other financial assets independently of the use of the public service by the users. |
| ● | Intangible assets: only when the licensor agreements do not establish a contractual right to receive cash flows and other financial assets from the licensor, independently of the use of the public service by the users. Airport concessions have been considered within the scope of IFRIC 12 as an intangible asset because they comply with the above provisions and no financial assets have been recognized in that regard. |
Mexico:
Rights-to-use airport facilities and airport concessions include the acquisition of the nine airport concessions and the rights acquired.
Amortization is computed using the straight-line method over the estimated useful life of the concessions, (original term of 50 years as of November 1, 1998); 24 years as of December 31, 2025.
F-67
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Aerostar:
The airport concession right, which includes certain capital expenditures in improvement projects, the intangible asset is recognized at cost less accumulated amortization and impairment losses.
Amortization is calculated using the straight-line method during the term of the agreement (40 years); 28 years as of December 31, 2025.
Airplan:
In the case of Airplan, the right granted by the Concession Contract No. 8000011-OK and Public Tender No. 10000001OL2010, respectively, is recorded as intangible, through which the grantors assign to the Company the regulated and unregulated income corresponding to each of the airports subject of the concession.
In turn, the costs per loan that are related to the works in execution are part of the intangible.
The intangible asset resulting from the recognition and updating of the estimated income of the contract is amortized based on the proportion of the accumulated income of the contract and the total income. Amortization is recognized in the results of the period.
The useful life for amortization was determined as the duration of the concession and amortization is calculated on a linear basis based on the years in which the recovery of the expected income from the financial model that the Company has is expected. The minimum term of the concession is the year 2015; however, in accordance with the complementary works carried out and the measurement of the expected income against the income generated, the concession will have a minimum useful life until the year 2032,however, based on notifications from the regulator and the updated financial information as of the close of fiscal year 2025, it is estimated that the regulated revenues generated by Airplan will equal the regulated revenues expected in fiscal year 2027. In accordance with the provisions of clause seven and sections 10.2 and 10.8 of the concession agreements, from that date Airplan will only retain the right to receive non-regulated revenues during the remaining period of the contract, whose minimum expiration is scheduled for 2032. Considering these operating conditions, it was necessary to adjust the amortization method applied up to December 31, 2024, in order to adequately reflect the new pattern of consumption of the future economic benefits of the concession, in accordance with the provisions of IAS 38, IFRIC 12, and IAS 36.
The Company has determined that the concession intangible asset be segregated into two components for amortization purposes:
Regulated component: Corresponds to the right to receive regulated revenues until 2027. Since the benefits associated with this component will be fully extinguished by that date, its amortization will be recognized on an accelerated basis through 2027, reflecting the consumption of the future economic benefits derived from those rights.
Non-regulated component: Represents the right to receive non-regulated revenues derived from commercial activities and complementary services. This component will continue to be amortized on a straight-line basis until 2032, the date on which the concession agreement concludes and the generation of future economic benefits ceases.
19.11.2) Licenses, commercial direct operation (ODC, by its acrony in Spanish) and commercial rights
These items are recognized at their cost less the accrued amortization and any recognized impairment losses. They are amortized on a straight line basis using their estimated useful life, determined based on the expected future economic benefits, and are subject to testing when indication of impairment is identified. The useful lives are linked to the useful life of the concessions (See Note 19.11.1).
F-68
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The estimated remaining useful lives at December 31, 2025 are as follows:
Licenses Mexico |
|
23 |
years |
ODC Mexico |
|
23 |
years |
Commercial Rights of Aerostar |
|
27 |
years |
Commercial Rights of Airplan |
|
1 |
years |
19.11.3) Goodwill
Goodwill represents the acquisition cost of a subsidiary in excess of the Company’s interest in the fair value of the identifiable net assets acquired, determined at the acquisition date, and it is not subject to amortization. Goodwill is shown separately in the consolidated statement of financial position and is recorded at cost less accumulated impairment losses, which are not reversed. Gains and losses on the disposal of an entity include the carrying amount of goodwill relating to the entity sold.
19.11.4) Intangible assets acquired as part of a business combination
When an intangible asset is acquired as part of a business combination, it is recognized at fair value at acquisition date. Subsequently, intangible assets acquired in a business combination, such as commercial rights, are recognized at cost less the accumulated amortization and the accrued amount of impairment losses, see useful lives of these rights in Note 19.11.2.
19.12) Impairment of assets
Goodwill and intangible assets with indefinite useful lives are not subject to amortization or depreciation and are subject to annual impairment tests, or more frequently if there are events or circumstances that indicate that they might be affected. Other assets are subject to impairment tests when events or circumstances arise that indicate that their book value might not be recovered. Impairment losses correspond to the amounts where the book value of the asset exceeds their recoverable amount. The recoverable amount of assets is the higher of the fair value of the asset less the costs incurred for its sale and value in use. For impairment assessment purposes, assets are grouped at the lowest levels at which they generate identifiable cash flows separately which are largely independent of the cash flows of other assets or the Company’s assets (cash-generating units). Impaired non-financial assets other than goodwill are reviewed to determine the possible reversal of impairment at the end of each reporting period.
19.13) Accounts payable
Accounts payable are liabilities with creditors for purchases of goods or services acquired during the regular course of the Company’s operations. When payment is expected over a period of one year or less from the closing date, they are presented under current liabilities. If the foregoing is not complied with, they are presented under non-current liabilities.
Accounts payable are initially recognized at their fair value and are subsequently measured at amortized cost using the effective interest method.
19.14) Bank loans and long-term debt
Loans from financial institutions and long-term debt are initially recognized at their fair value, net of transaction costs. Those funds are subsequently recorded at their amortized cost; any difference between the funds received (net of transaction costs) and the redemption value is recognized in the statement of income during the funding period using the effective interest method.
F-69
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
19.14.1) Debt renegotiation
If the renegotiation results in the cancellation of the original liability because the 10% test is exceeded, the original liability is canceled and any difference is recognized in results when the renegotiation occurs.
If the renegotiation does not result in the cancellation of the financial liability, the value of the new cash flows of the financial liability is calculated, discounted at the original effective interest rate, any difference between the discounted value and the carrying amount is recognized in results and the effective interest rate is prospectively adjusted to include the new costs and commissions.
19.14.2) Costs for loans
Costs for specific and general loans directly attributable to the construction of qualifying assets are capitalized during the period of construction and preparation of the asset for its use. Qualifying assets are those that require a substantial period to be ready and able to be used (usually greater than one year). Financial revenues obtained from temporary investments made with money coming from specific loans that will be used for the construction of qualifying assets are decreased of financial costs eligible for capitalization.
The capitalization of costs for loans in foreign currency that generates interests and losses due to foreign exchange fluctuations, are only capitalized up to the amount of interest that would have been generated by loan in national currency, with similar conditions of time.
19.15) Derecognition of financial liabilities
The Company derecognizes its financial liabilities if, and only if, the obligations of the Company are met, are cancelled or if they expire.
19.16) Provisions
Liability provisions represent a present legal obligation or an assumed obligation as a result of past events, when the use of economic resources is likely in order to settle the obligation and when the amount can be reasonably estimated. Provisions are not recognized for future operating losses.
Provisions are measured at the present value of expenses expected to cover the related obligation, using a pretax rate that reflects the actual considerations of the value of money market over time and the specific risks inherent in the obligation. The increase in the provision over time is recognized as an interest expense.
When there are similar obligations, the likelihood of the outflow of economic resources for settling those obligations is determined considering them as a whole. In these cases, the provision thust estimated is recorded, provided the likelihood of the outflow of cash with respect to a specific item considered as a whole is remote.
19.17) Deferred IT, and tax on dividends
The expense for IT includes both the current tax and deferred taxes. Tax is recognized in the statement of income, except when it relates to items recognized directly in OCI or in stockholders’ equity in which case, the tax is also recognized in OCI items or directly in stockholders’ equity, respectively.
Deferred IT were recorded based on the comprehensive method of liabilities, which consists of recognizing deferred taxes on all temporary differences between the book and tax values of assets and liabilities to be materialized in the future at the enacted or substantially enacted tax rates in effect at the consolidated financial statement date. (See Note 15 a.)
Deferred tax assets are only recognized to the extent that it is probable future tax profits are expected to be incurred against which temporary differences can be offset.
F-70
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The balances of deferred income tax assets and liabilities are offset when there is an enforceable legal right for each entity to offset current tax assets against current tax liabilities and when deferred income tax assets and liabilities are related to the same tax authority.
Current IT is made up of IT, which is recorded under income for the year in which they are incurred. The tax is based on taxable income.
To determine the IT the applicable rate in Mexico for 2023, 2024 and 2025 was 30%, the applicable rate for Airplan, according to Colombian legislation for 2023, 2024 and 2025 was 35%, and the applicable rate for Aerostar, in accordance with Puerto Rico law, for 2023, 2024 and 2025 was 10% and the applicable rate for ASUR Airports, in accordance with United States legislation for 2025 was 21%.
Deferred tax assets and liabilities from the temporary differences arising from the investments in subsidiaries and joint businesses are recognized, except when the Company controls the reversal period for such temporary differences and it is likely that the temporary differences will not be reverted in a near future.
Aerostar and Airplan hold undistributed retained earnings which, if pay as dividends, would require the beneficiaries to pay tax (See Note 15). As of January 1, 2024, The Company recognized the liability for deferred taxes as there is a taxable temporary difference for the retained earnings by Aerostar and Airplan. As of December 31, 2025, the balance of the deferred income tax recognized at the Cancun Airport on the undistributed retained earnings from Aerostar, Airplan and ASUR US Commercial, amounts to Ps.485,935.
19.18) Stockholders’ equity
Capital stock, capital reserves and retained earnings are expressed at their historical cost. The capital reserves consist of the legal reserve, the reserve to repurchase own shares.
19.19) Basic and diluted earnings per share
Basic earnings per share were computed by dividing the net income for the year attributable to controlling interest (Ps. 10,203,713 in 2023, Ps.13,551,429 in 2024 and Ps.10,488,903 in 2025) by the weighted average number of shares outstanding in 2023, 2024 and 2025. The number of shares outstanding for the periods from January 1 to December 31, 2023, 2024 and 2025 were 300 million. The basic ordinary earnings share for the year ended as of December 31, 2023, 2024 and 2025 was Ps.34.01, Ps.45.17 and Ps.34.96, respectively, are expressed in pesos, the diluted earnings per share is equal to the basic earnings per share.
19.20) Financial reporting by segments
The segment financial information is presented in a manner that is consistent with the internal reporting provided to the General Directors in charge of making operational decisions, allocating resources and assessing the performance of the operating segments.
F-71
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The Company determines and evaluates the performance of its airports (operating profit) on an individual basis, after allocating personnel costs and other costs of “Services”, which are incurred by a Company’s subsidiary which hires some of the Company’s employees. The performance of these (Services) is determined and assessed separately by management. All the airports provide substantially the same services to their clients. All airports provide substantially the same services to their customers. Note 2 includes the financial information related to the Company’s different segments, which includes Cancun and subsidiaries (Cancun), showing separately due to its importance Aerostar Airport Holdings (Aerostar) and Sociedad Operadora de Aeropuertos (Airplan) and ASUR US Commercial (ASUR US), the Aeropuerto de Villahermosa (Villahermosa), the Aeropuerto de Mérida (Mérida), and Services. The financial information of Servicios Aeroportuarios del Sureste, S. A. de C. V., RH Asur, S. A. de C. V. and of the holding company (including the investment of the Company in its subsidiaries) has been grouped and is included in the “Services” column. The remaining six airports has been grouped in the column “Others”. The elimination of the investment of the Company in its subsidiaries is included in the “Consolidation Adjustments” column.
Resources are assigned to the segments based on the significance of each one to the Company’s operations. Transactions among operating segments are recorded at their fair value.
19.21) Revenue recognition
The accounting policies for the Company’s revenue from contracts with customers are explained in Note 3.
Note 20 - Financial risk management:
The Company is exposed to financial risks that result from changes in interest rates, foreign exchange rates, price risk, liquidity risk and credit risk. The Company controls and maintains the treasury control functions related to transactions and global financial risks through practices approved by its Executive Board and Board of Directors.
This note contains information regarding the Company’s exposure to each of the aforementioned risks, and the objectives, policies and procedures to measure and manage risk.
The main risks to which the Company is exposed are:
20.1)Market risk
20.1.1) Interest rate risk
The Company has bank loans to partially finance its operations. These transactions expose the Company to interest rate risk, with the main exposure being to variable interest rates resulting from changes in the market reference rates used. Santander Bank charges interest based on the one-day TIIEF rate plus 1.50 points, maturing in 2027. BBVA Bancomer charges interest based on the 28-day TIIE rate plus an applicable margin of 1.35 points, maturing in 2029, and interest based on the 28-day TIIEF rate plus an applicable margin of 1.25 points, maturing in May 2027. JPMorgan charges interest based on the 28-day TIIE rate plus an applicable margin of 0.75 points, maturing in May 2027. Despite the uncertainty caused by interest rate risk in the event of an increase in interest rates, the Company holds cash equivalent to 17.8 times the amounts of short-term debt and loans.
20.1.2) Exchange rate risk
The Company is exposed to minor risk for changes in the value of the Mexican Peso against the U. S. Dollar. Historically, a significant portion of income generated by the Company (mainly derived from the fees charged to international passengers) are denominated in U. S. Dollars, and despite that, income is invoiced in Pesos at the average exchange rate of the previous month and likewise the cash flows are collected in Pesos. As of December 31, 2024, the Company had an investment amounting to Ps. 1,537,688, which was sold on April 2 and May 15, 2025 (see Note 6.3).
F-72
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
At December 31, 2024 and 2025, the Company is exposed to exchange rate risk for monetary position as follows:
|
|
December 31, |
||||
|
|
2024 |
|
2025 |
||
|
|
(Thousands of dollars) |
||||
Asset |
|
Ps. |
627,768 |
|
Ps. |
413,507 |
Liability |
|
|
(7,450) |
|
|
(7,496) |
Monetary active position |
|
Ps. |
620,318 |
|
Ps. |
406,011 |
At December 31, 2024 and 2025, the exchange rate was Ps.20.79 and Ps.18.00, respectively. Had the currency weakened by 5% in 2024 and 10% in 2025) with respect to the U.S. Dollar, the Company would have had a gain on monetary position at the close in the amount of Ps.644.7 million in 2024 and monetary gain of Ps.365.4 million in 2025. As of April 15, 2026, the exchange rate was Ps.17.26
20.1.3) Price risk
The rate regulation system applicable to the airports of the Company imposes maximum rates for each airport, which should not be exceeded on an annual basis. The maximum rates are the maximum annual income per unit of traffic (one passenger or 100 kg of cargo). If the maximum annual rate is exceed, the government authorities could revoke one or more of the Company’s concessions in Mexico.
The Company monitors and adjusts its income on a regular basis in order for its annual invoicing not to exceed the maximum rate limits. In the case of the Aerostar and Airplan concessions, there are no maximum ceilings established by the corresponding Government.
Concentrations:
At December 31, 2024 and 2025, approximately 61.3% and 56.5%, of revenue, not including income from construction services, resulted from operations at the Cancun International Airport.
20.2) Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its funding requirements. The Company’s Management has established policies, procedures and limits of authority that govern the Treasury function. Treasury is responsible for ensuring liquidity and managing the working capital to ensure payments to suppliers, debt servicing and funding of operating costs and expenses.
The Company is cautious about liquidity risk and maintains sufficient cash and negotiable instruments and the availability of financing through an adequate amount of credit facilities to meet obligations at maturity and settle trading positions. At period end on December 31, 2023, 2024 and 2025 the Company had demand deposits amounting to Ps.13,871,897 and Ps.20,083,457 and Ps.11,116,335 respectively, and as of December 31, 2025, two credit lines available as of December 31, 2024 and 2025 for USD 10,000 (approximately Ps.180,012) and USD 20,000 (approximately Ps.360,024). To manage liquidity risk, as of December 31, 2025, the Company had not drawn on these credit lines. Due to the dynamic and uncertain nature of current conditions, the Company’s treasury maintains financing flexibility by preserving availability under credit lines.
Company’s Management controls changes in its liquidity reserves forecast (including unused credit lines) and cash and cash equivalents based on expected cash flows. In general, this is conducted at country level for operating entities of the Company according to practices and limits set. These limits vary in each country, taking into account the liquidity of the market in which the Company operates. Additionally, the Group’s policy on liquidity management includes cash flows projections in the main currencies and the consideration of the necessary level of liquid assets to meet these projections; the control of liquidity ratios of the Statement of Financial Position regarding the internal and external regulatory requirements, and the maintenance of the debt financing plans.
F-73
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The following table shows the liquidity position for each country where the Company operates.
|
|
Cash and |
|
|
|
|
|
|
|
Short- term |
|
Long- term |
||||||
|
|
cash |
|
Total |
|
Short - term |
|
Long - term |
|
Leasing |
|
Leasing |
||||||
December 31, 2024 |
|
equivalents |
|
Debt |
|
Debt |
|
Debt |
|
liabilities |
|
liabilities |
||||||
Mexico |
|
$ |
15,868,354 |
|
$ |
2,423,495 |
|
$ |
685,490 |
|
$ |
1,738,005 |
|
$ |
22,496 |
|
|
|
Aerostar |
|
|
850,723 |
|
|
10,507,887 |
|
|
443,814 |
|
|
10,064,073 |
|
|
— |
|
|
|
Airplan |
|
|
3,364,380 |
|
|
428,074 |
|
|
2,226 |
|
|
425,848 |
|
|
— |
|
|
|
Total |
|
$ |
20,083,457 |
|
$ |
13,359,456 |
|
$ |
1,131,530 |
|
$ |
12,227,926 |
|
$ |
22,496 |
|
$ |
— |
|
|
Cash and |
|
|
|
|
|
|
|
|
Long- term |
|
Long- term |
|||||
|
|
cash |
|
Total |
|
Short - term |
|
Long - term |
|
Leasing |
|
Leasing |
||||||
December 31, 2025 |
|
equivalents |
|
Debt |
|
Debt |
|
Debt |
|
liabilities |
|
liabilities |
||||||
Mexico |
|
$ |
8,452,666 |
|
$ |
18,199,671 |
|
$ |
72,513 |
|
$ |
18,127,158 |
|
$ |
7,120 |
|
|
|
Aerostar |
|
|
323,859 |
|
|
8,869,864 |
|
|
405,494 |
|
|
8,464,370 |
|
|
— |
|
|
|
Airplan |
|
|
1,914,646 |
|
|
417,028 |
|
|
147,843 |
|
|
269,185 |
|
|
— |
|
|
|
ASUR Airports |
|
|
425,164 |
|
|
|
|
|
|
|
|
|
|
|
1,387,861 |
|
$ |
6,720,103 |
Total |
|
$ |
11,116,335 |
|
$ |
27,486,563 |
|
$ |
625,850 |
|
$ |
26,860,713 |
|
$ |
1,394,981 |
|
$ |
6,720,103 |
The following table presents the analysis of the net financial liabilities of the Company based on the period between the date of the statement of consolidated financial position and the maturity date, including undiscounted contractual cash flows:
|
|
Under |
|
Between 3 months |
|
Between 1 |
|
Between 2 and |
||||
At December 31, 2024 |
|
3 months |
|
and one year |
|
and 2 years |
|
5 years |
||||
Bank loans and interest |
|
Ps. |
97,469 |
|
Ps. |
891,336 |
|
Ps. |
369,518 |
|
Ps. |
2,418,340 |
Long term debt |
|
|
425,793 |
|
|
432,923 |
|
|
871,003 |
|
|
2,605,601 |
Suppliers |
|
|
325,701 |
|
|
|
|
|
|
|
|
|
Accounts payable and accrued expenses |
|
|
1,305,959 |
|
|
|
|
|
|
|
|
|
Lease liabilities |
|
|
22,496 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2025 |
|
|
|
|
|
|
|
|
|
|
|
|
Bank loans and interest |
|
Ps. |
371,975 |
|
Ps. |
1,121,984 |
|
Ps. |
17,497,589 |
|
Ps. |
2,037,150 |
Long term debt |
|
|
373,370 |
|
|
380,934 |
|
|
767,626 |
|
|
2,281,367 |
Suppliers |
|
|
624,413 |
|
|
|
|
|
|
|
|
|
Accounts payable and accrued expenses |
|
|
1,502,904 |
|
|
|
|
|
|
|
|
|
Lease liabilities |
|
|
351,412 |
|
|
1,054,236 |
|
|
865,612 |
|
|
2,596,836 |
As of December 31, 2024 and 2025, the amount of undiscounted contractual cash flows associated with maturities greater than 5 years of long-term debt including interest amounts to Ps.11,129,662 and Ps.8,845,977, respectively.
As of December 31, 2025, the amount of undiscounted contractual cash flows associated with lease liabilities maturing in more than 5 years amounts to Ps.6,492,092.
F-74
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
The following table shows the Company’s short term liquidity as of:
|
|
December 31, |
||||
|
|
2024 |
|
2025 |
||
Current assets |
|
Ps. |
25,656,011 |
|
Ps. |
17,877,787 |
Current liabilities |
|
|
5,887,006 |
|
|
5,903,180 |
Short term position (liquidity) |
|
Ps. |
19,769,005 |
|
Ps. |
11,974,607 |
20.3) Credit risk - credit quality
The financial instruments that are potentially subject to credit risks consist mainly of accounts receivable. Income obtained from fares charged to passengers is not guaranteed and therefore the Company faces the risk of not being able to collect the full amounts invoiced in the event of insolvency of its clients, which are the airlines. The Company frequently reviews financial instruments and tests them for impairment. (See Note 6.2).
In the year 2023, the case of Viva Air and Ultra Air airlines, Airplan clients, has been presented, which have reported substantial losses, in addition to this, the income from passenger fees from the main client airlines, and their balance. As of December 31, 2024, and 2025, it amounts to Ps.26,514 and Ps.21,624 respectively, not all of them are guaranteed by guarantee or other type of guarantee. Therefore, in the event of insolvency of any of the airlines, the Company would have no certainty of recovering the total sum of amounts invoiced to the airlines for passenger fees. On July 1, 2025, by court order, the uncollectibility of the Viva Air receivable in the amount of Ps. 13.6 and the Ultra Air receivable in the amount of Ps. 7.8 was declared.
In August 2010, Grupo Mexicana filed for bankruptcy. Grupo Mexicana owes the Company Ps. 128,000 for passenger fees. As a result of Grupo Mexicana’s bankruptcy, the Company has increased, in that moment, its reserve for uncollectable accounts by Ps. 128,000. The Company has determined that it may not be able to collect that amount. See Note 6.2.
The Company operates under three methods to collect from Airlines:
| a. | Credit, mainly offered to airlines with which there is a history of frequent and stable flights, |
| b. | Advances, from airlines with reasonably stable flights or that are in the exploration stage of routes or destinations, and |
| c. | Cash, mainly offered for Charter flights and airlines with new flights. |
With this segregation, the Company reduces its collection risk since the airlines that operate under methods b) and c) do not generate accounts receivable.
Cash and cash equivalents are not subject to credit risks since the amounts are kept at financial institutions of good standing, and investments are subject to lower significant risk as they are being backed by the Mexican Federal Government or institutions with AAA high market ratings.
Investments in financial instruments are not subject to credit risks since the amount is kept in a solid financial institution with AAA high market ratings.
F-75
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
20.4) Capital management
The objective of Management is to safeguard the Company’s ability to continue operating as a going-concern in order to provide returns for stockholders and benefits for other stakeholders and to maintain an optimal capital structure to reduce the cost of capital.
These activities are monitored through the review of information pertaining to the Company’s operation and the Industry. This effort is coordinated by the CEO. Through a planning method, detailed simulations are formulated of identified risks as they are known. The risks identified are valued in terms of probability and impact and are presented to the proper authorities. The result of all these activities is reported to the market through 20-F reports, the Mexican Circular Unica and quarterly reports by an Investment Committee that analyzes, among other, financial risks.
During the year, there was no material uncertainty regarding the Company’s ability to continue as a going concern. At December 31, 2024 and 2025, the Company’s Board has a reasonable expectation that the Group has the appropriate resources to continue operating at least for the next twelve months and that the use of the going concern basis of accounting is appropriate.
20.5) Fair value
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date, in accordance with IFRS 13 Fair Value Measurement.
i.Financial Assets and Liabilities
As of December 31, 2024 and 2025, the Company does not hold any financial instruments measured at fair value that are presented individually in the consolidated statement of financial position. Financial assets and liabilities, including bank loans and long-term notes, are recognized and measured primarily at amortized cost, in accordance with the Group’s accounting policies.
The fair value of these financial instruments at amortized cost is determined using valuation techniques based on observable market information, and therefore they are classified within Tier 2 of the fair value hierarchy in 2024 and 2025.
However, the Group holds an interest in an associate entity in ASUR Dominicana, whose carrying amount is determined using the equity method in accordance with IAS 28. This investment includes a financial asset corresponding to a right of recovery of investment, which qualifies as a financial instrument measured at fair value. The effect of this measurement is incorporated in the carrying amount of the investment accounted for using the equity method and is not presented separately as a financial asset in the consolidated statement of financial position.
ii.Investment Properties
Beginning in 2025, the Group recognizes investment properties in accordance with IAS 40 Investment Property. These properties primarily consist of right-of-use assets held to earn rental income and are subsequently measured at fair value, in accordance with the Group’s accounting policy.
The fair value of investment properties is determined using generally accepted valuation techniques and assumptions that reflect market conditions at the measurement date, such as discount rates, cash flow projections, occupancy levels, and contractual terms. Gains or losses arising from changes in the fair value of investment properties are recognized directly in profit or loss in the period in which they arise.
F-76
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
iii.Fair Value Hierarchy
The Company classifies fair value measurements using a hierarchy that prioritizes the input data used in valuation techniques, as follows:
Level 1: Quoted (unadjusted) prices in active markets for identical assets or liabilities.
Level 2: Quoted prices for similar instruments in active markets; quoted prices for identical or similar instruments in inactive markets; and valuations using models where all significant data are observable in active markets.
Level 3: Inputs for the asset or liability that are not based on observable market data (i.e., unobservable data).
The fair value of financial instruments traded in active markets is based on market prices quoted as of the closing date of the consolidated statement of financial position. A market is considered active if quoted prices are clearly and regularly available through a stock exchange, dealer, broker, industry group, pricing services, or regulatory agency, and those prices currently and regularly reflect market transactions under independent conditions. The quoted price used for financial assets held by the Company is the current bid price. For disclosure purposes, the fair value measurement of investment properties is classified within Level 3 of the fair value hierarchy, given that the valuation techniques employed use significant assumptions that are not directly observable in the market.
Note 21 - Critical accounting judgments and key sources of estimation uncertainty:
In applying the Company’s accounting policies, which are described below, Company management is required to make judgments, estimates and assumptions about the carrying amounts of assets and liabilities. Estimates and assumptions are based on historical experience and other factors considered relevant. Actual results could differ from those estimates.
Critical accounting judgments
Significant information on assumptions, critical judgments and uncertainty estimations recognized in the consolidated financial statements are as follows:
21.1 Revenue
21.2 Useful life of the Airplan concession
21.3 Evaluation of impairment of intangible assets, airport concession and goodwill
21.4 Fair Value property investment
21.1 Revenue
As mentioned in Note 20.1.3, the Company regularly monitors and adjusts income so as to avoid exceeding the maximum rate at each of the airports operated by the Company in Mexico, which is the annual maximum income per traffic unit that can be received, and therefore the amount that the Company can record for services rendered whose prices are regulated.
F-77
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
If the Company recognized income exceeding that maximum rate, the authorities could cancel one or more airport concessions. Therefore, the Company regularly monitors regulated income in Mexico to ensure it does not exceed the limit. The application of the procedure established in the concession titles for determining maximum rates and securing the necessary information are complex procedures. Among the information used in determining the maximum rate is passenger traffic and cargo statistics, in addition to variables such as the National Producer Price Index (excluding oil), authorized rates for airport services and the Rate for Airport Use.
21.2 Useful life of the Airplan concession
The term of the Airplan contract extends from the date of signing and until the date on which one of any of the following events occurs:
| ● | That the regulated revenues generated are equal to the expected regulated revenues, provided that by that time 15 years have elapsed from the date of subscription of the certificate of execution. |
| ● | That 25 years have elapsed since the date of execution of the execution start certificate, regardless of whether, at the time, the regulated revenues generated have not matched the value of the expected regulated revenues. |
| ● | If the regulated income generated equals the expected regulated income before 15 years have elapsed from the date of execution of the certificate of execution, the duration of the execution of the contract will be, in any case, 15 years. |
It must be taken into account, for purposes of the regulated revenues expected according to the definition of the concession contract that the expected regulated revenue will increase once each of the complementary works (mandatory or voluntary) is delivered to the grantor. The useful life for the amortization was determined as the duration of the concession and the amortization is calculated on a linear basis based on the years in which the recovery of the expected income of the financial model held by the Company is expected. The minimum term of the concession was the year 2022; however, in accordance with the complementary works carried out and the measurement of the expected income against the income generated, the concession will have a minimum useful life until the year 2032, and in accordance with the legal terms, the Concession may extend until 2048.
The Company carried out a sensitivity analysis based on notifications from the regulator and the updated financial information as of the close of fiscal year 2025. It is estimated that the regulated revenues generated by Airplan will equal the regulated revenues expected in fiscal year 2027. In accordance with the provisions of clause seven and sections 10.2 and 10.8 of the concession agreement, from that date Airplan will only retain the right to receive non-regulated revenues during the remaining period of the contract, whose minimum expiration is scheduled for 2032. Considering these operating conditions, the Company was required to adjust the amortization method applied up to December 31, 2024, in order to adequately reflect the new pattern of consumption of the future economic benefits of the concession, in accordance with the provisions of IAS 38, IFRIC 12, and IAS 36.
The Company has determined that the concession intangible asset be segregated into two components for amortization purposes:
Regulated component: Corresponds to the right to receive regulated revenues until 2027. Since the benefits associated with this component will be fully extinguished by that date, its amortization will be recognized on an accelerated basis through 2027, reflecting the consumption of the future economic benefits derived from those rights.
Non-regulated component: Represents the right to receive non-regulated revenues derived from commercial activities and complementary services. This component will continue to be amortized on a straight-line basis until 2032, the date on which the concession agreement concludes and the generation of future economic benefits ceases.
At December 31, 2024 and 2025 the total expected revenues considering the additional works amount to Ps. 13,081,476 and Ps.15,380,997 respectively.
F-78
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
21.3 Evaluation of impairment of intangible assets, airport concession and goodwill
Intangible assets, airport concessions and goodwill are assessed for impairment whenever events or changes in circumstances indicated that the value of intangible assets could be impaired and at least once a year in the case of goodwill. To determine whether the value of intangible assets and goodwill has been impaired, the cash generating unit relating to the intangible asset and goodwill has to be valued using present value techniques. By applying this valuation technique, the Company is based on a series of factors, including historical results, business plans, forecasts and market data. This is further described in Note 9.1. As can be deducted from this description, changes in the conditions of these judgments and estimates can significantly affect the assessed value of intangible assets and goodwill.
21.4 Fair Value property investment
The fair value of investment properties is determined primarily using the discounted cash flows. These projections are supported by the terms of existing contracts and external information, such as rents from comparable properties in the same areas and under similar conditions. Discount rate reflecting current market conditions are used, and an assessment of the uncertainty associated with the amount and timing of expected cash flows is incorporated.
Sensitivity
For the 2025 fiscal year, if the discount rate applied to the cash flow projections of the investment projections were +1% or - 1%, the fair value would have had a decrease of Ps. 781,638 and an increase of Ps. 646,182, respectively
Note 22 - Consolidated statements of cash flows:
As of December 31, 2023, 2024 and 2025, the analysis of net debt and movements in net debt is presented as follows:
|
|
Long - term debt |
|
Bank Loans |
||||||||||||||
|
|
2023 |
|
2024 |
|
2025 |
|
2023 |
|
2024 |
|
2025 |
||||||
Short-term debt (Note 13) |
|
Ps. |
344,048 |
|
Ps. |
443,814 |
|
Ps. |
405,494 |
|
|
|
|
|
|
|
|
|
Short-term bank loans (Note 12) |
|
|
|
|
|
|
|
|
|
|
Ps. |
889,591 |
|
Ps. |
687,716 |
|
Ps. |
220,356 |
Long-term bank loans (Note 12) |
|
|
|
|
|
|
|
|
|
|
|
2,586,932 |
|
|
2,163,853 |
|
|
18,396,343 |
Long-term debt (Note 13) |
|
|
8,404,199 |
|
|
10,064,073 |
|
|
8,464,370 |
|
|
|
|
|
|
|
|
|
Balances at December 31 |
|
Ps. |
8,748,247 |
|
Ps. |
10,507,887 |
|
Ps. |
8,869,864 |
|
Ps. |
3,476,523 |
|
Ps. |
2,851,569 |
|
Ps. |
18,616,699 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balances at January 1 of the debt-net |
|
Ps. |
10,269,176 |
|
Ps. |
8,748,247 |
|
Ps. |
10,507,887 |
|
Ps. |
4,935,585 |
|
Ps. |
3,476,523 |
|
Ps. |
2,851,569 |
Interest expense |
|
|
552,046 |
|
|
545,977 |
|
|
549,669 |
|
|
573,816 |
|
|
252,892 |
|
|
887,103 |
Bank loans(Note 12) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
21,065,000 |
Long-term debt (Note 13) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest paid |
|
|
(519,601) |
|
|
(516,894) |
|
|
(536,682) |
|
|
(547,505) |
|
|
(421,261) |
|
|
(834,434) |
Principal payments |
|
|
(200,535) |
|
|
(224,914) |
|
|
(263,130) |
|
|
(1,475,000) |
|
|
(538,712) |
|
|
(5,175,000) |
Deferred Loan Fees related to acquired loans |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(187,842) |
Foreign currency translation |
|
|
(1,352,839) |
|
|
1,955,471 |
|
|
(1,387,880) |
|
|
(10,373) |
|
|
82,127 |
|
|
10,303 |
Balances at December 31 |
|
Ps. |
8,748,247 |
|
Ps. |
10,507,887 |
|
Ps. |
8,869,864 |
|
Ps. |
3,476,523 |
|
Ps. |
2,851,569 |
|
Ps. |
18,616,699 |
In accordance with IAS 7 Statement of Cash Flows, restricted cash movements are presented within operating, investing or financing activities, depending on the nature of the underlying restriction, and are considered in the reconciliation of cash and cash equivalents at the beginning and end of the period.
F-79
Grupo Aeroportuario del Sureste, S. A. B. de C. V. and subsidiaries
Notes to the Consolidated Financial Statements
December 31, 2023, 2024 and 2025
Note 23 - Subsequent event:
On January 26, 2026, the Company’s Shareholders’ Meeting approved the potential acquisition of shares in Companhia de Participações em Concessões (CPC), which holds shares in twenty airports under concession in Brazil, Ecuador, Costa Rica, and Curaçao. The Company plans to finance the transaction primarily through debt. As of the date of this report, the transaction has not yet been completed, and the expected purchase price will be US$936 million.
On March 26, 2026, Airplan entered into Addendum No. 27 (Otrosí 27) to the concession agreement with ANI and the AOH (collectively, the “Grantors”), authorizing the execution of a project (the “Immediate Interventions to Address Unexpected Demand”) at José María Córdova International Airport. The project covers a series of capacity expansion and service-level improvement works, including domestic and international check-in facilities, a departing baggage handling system, security checkpoints, remote boarding areas, new aircraft platforms and immigration facilities. The estimated capital expenditure for this project is COP 164,611 million in current pesos (equivalent to COP 65,934 million in constant January 2007 pesos).
Note 24 - Authorization of the consolidated financial statements:
The consolidated financial statements and their twenty four notes are an integral part of the consolidated financial statements, which were authorized and proposed for their issuance to the Board of Directors by Mr. Adolfo Castro Rivas, Chief Executive Officer and Chief Financial Officer of Grupo Aeroportuario del Sureste, S.A.B. de C.V.
F-80
Exhibit 2.5
AGREEMENT TO FURNISH DEBT INSTRUMENTS
Pursuant to paragraph 2(b)(i) of the Instructions as to Exhibits in Form 20-F, Grupo Aeroportuario del Sureste, S.A.B. de C.V., (the “Company”) has not included as an exhibit to its Annual Report on Form 20-F any instrument relating to long-term debt if the total amount of debt authorized by such instrument does not exceed 10% of the total assets of the Company. The Company agrees to furnish a copy of any such instrument to the Securities and Exchange Commission upon request.
|
Grupo Aeroportuario del Sureste, S.A.B. de C.V. |
|
|
|
/s/ Adolfo Castro Rivas |
|
Adolfo Castro Rivas |
|
Chief Executive Officer |
|
Chief Financial and Strategic Planning Officer |
|
April 16, 2026 |
Exhibit 2.d
DESCRIPTION OF THE REGISTRANT’S SECURITIES REGISTERED PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934
As of April 16, 2026, Grupo Aeroportuario del Sureste, S.A.B. de C.V. (the “Company”) had two classes of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”): its Series B shares and its American Depositary Shares (“ADSs”).
1.Description of Series B Shares.
The Company’s Series B shares are registered only in connection with the registration of the Company’s ADSs, pursuant to the requirements of the Securities and Exchange Commission, and are not for trading. The following description of the Company’s Series B shares is a summary and does not purport to be complete and is subject to and qualified in its entirety by the Company’s Amended and Restated Bylaws (the “Bylaws”), as adopted at the Extraordinary Shareholders’ Meeting held on April 27, 2007, and applicable Mexican law concerning companies, as amended from time to time. An English translation of the Bylaws, prepared for information purposes only, is incorporated by reference as Exhibit 1.1 to the Company’s annual report on Form 20-F for the fiscal year ended December 31, 2025.
A.General.
The Company has Series B and Series BB shares in issue which are governed by the laws of Mexico and are registered with the Registro Nacional de Valores (Mexican Securities Registry), as required under the Mexican Ley del Mercado de Valores (Securities Market Law) and regulations issued by the Mexican Comision Nacional Bancaria y de Valores (Banking and Securities Commission, or CNBV). The Company’s publicly traded share capital consists of its Series B common shares without par value, which are publicly traded in Mexico on the Bolsa Mexicana de Valores, S.A.B. de C.V. under the ticker symbol “ASUR B.” As of December 31, 2024, there were 277,050,000 Series B shares and 22,950,000 Series BB shares outstanding, respectively.
B.Dividends.
Each Series B and Series BB share entitles its holder to equal rights with respect to dividends and distributions. At the Company’s annual ordinary general stockholders’ meeting, the Board of Directors submits to the stockholders for their approval the Company’s financial statements for the preceding fiscal year. Five percent of the Company’s net income (after statutory employee profit sharing and other deductions required by Mexican law) must be allocated to a legal reserve fund until the legal reserve fund reaches an amount equal to at least 20.0% of the Company’s capital stock (without adjustment for inflation). Additional amounts may be allocated to other reserve funds as the stockholders may from time to time determine, including a reserve to repurchase shares.
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The remaining balance, if any, of net earnings may be distributed as dividends on both Series B shares and Series BB shares.
C.Voting Rights and Stockholders’ Meetings.
Each Series B share and Series BB share entitles the holder to one vote at any general meeting of the Company’s stockholders. Holders of Series BB shares are entitled to elect two members of the Board of Directors and holders of Series B shares are entitled to name the remaining members of the Board of Directors. The Bylaws provide that the Board of Directors will have such odd number of members as determined by the stockholders’ meeting, which number shall not be less than seven and shall be subject to the maximum limit set forth by the Mexican Ley del Mercado de Valores (Mexican Securities Market Law). Currently, the Board of Directors consists of eleven members.
Under Mexican law and the Bylaws, the Company may hold three types of stockholders’ meetings: ordinary, extraordinary and special. Ordinary stockholders’ meetings are those called to discuss any issue not reserved for extraordinary stockholders’ meeting. An annual ordinary stockholders’ meeting must be convened and held within the first four months following the end of each fiscal year to discuss, among other things, the report prepared by the Board on the Company’s financial statements, the appointment of members of the Board and the determination of compensation for members of the Board. In addition, the ordinary stockholders’ meeting shall meet for the approval of any transaction representing the equivalent of 20.0% or more of the consolidated assets of the Company.
Extraordinary stockholders’ meetings are those called to consider any of the following matters:
| ● | extension of the Company’s duration or voluntary dissolution, |
| ● | an increase or decrease in the Company’s minimum fixed capital, |
| ● | change in corporate purpose or nationality, |
| ● | any transformation, merger or spin-off involving the Company, |
| ● | any stock redemption or issuance of preferred stock or bonds, |
| ● | the cancellation of the listing of the Company’s shares with the National Registry of Securities or on any stock exchange, |
| ● | amendments to the Company’s Bylaws, and |
| ● | any other matters for which applicable Mexican law or the Bylaws specifically require an extraordinary meeting. |
Special stockholders’ meetings are those called and held by stockholders of the same series or class to consider any matter particularly affecting the relevant series or class of shares.
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Stockholders’ meetings are required to be held in the Company’s corporate domicile, which is Mexico City. Calls for stockholders’ meetings must be made by the Chairman, the Secretary or any two members of the Board of Directors. Any stockholder or group of stockholders representing at least 10.0% of the Company’s capital stock has the right to request that the Board of Directors call a stockholders’ meeting to discuss the matters indicated in the relevant request. If the Board of Directors fails to call a meeting within 15 calendar days following receipt of the request, the stockholder or group of stockholders representing at least 10.0% of the Company’s capital stock may request that the call be made by a competent court.
Calls for stockholders’ meetings must be published in the official gazette of the federation or in one newspaper of general circulation in Mexico at least 15 calendar days prior to the date of the meeting. Each call must set forth the place, date and time of the meeting and the matters to be addressed. Calls must be signed by whomever makes them, provided that calls made by the Board of Directors must be signed by the Chairman, the Secretary or a special delegate appointed by the Board of Directors for that purpose. Stockholders’ meetings will be validly held and convened without the need of a prior call or publication whenever all the shares representing the Company’s capital are duly represented.
To be admitted to any stockholders’ meeting, stockholders must: (i) be registered in the Company’s share registry; and (ii) at least one business day prior to the commencement of the meeting submit (a) an admission ticket issued by the Company for that purpose, and (b) a certificate of deposit of the relevant stock certificates issued by the Secretary or by a securities deposit institution, a Mexican or foreign bank or securities dealer in accordance with the Mexican Securities Market Law. The share registry will be closed three days prior to the date of the meeting. Stockholders may be represented at any stockholders’ meeting by one or more attorneys-in-fact who may not be directors of ASUR. Representation at stockholders’ meetings may be substantiated pursuant to general or special powers of attorney or by a proxy executed before two witnesses.
D.Special Voting Rights of Series BB Shares.
Series BB shares are held by Inversiones y Tecnicas Aeroportuarias, S.A.P.I. de C.V. (“ITA”), the Company’s strategic partner. In addition to the right to elect two members of the Board of Directors, Series BB shares are entitled to certain special voting rights. For example, pursuant to the Bylaws, ITA is entitled to present the Board of Directors with the name or names of the candidates for appointment as chief executive officer, to remove the Company’s chief executive officer and to appoint and remove one half of the executive officers, and to elect two members of the Board of Directors. The Bylaws also provide ITA veto rights with respect to certain corporate actions (including some requiring approval of the Company’s stockholders) so long as its Series BB shares represent at least 7.65% of the Company’s capital stock.
E.Directors.
The Bylaws provide that the Board of Directors will have such odd number of members as determined by the shareholders’ meeting, which number shall not be less than seven and shall be subject to the maximum limit set forth by the Mexican Securities Market Law.
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Each person (or group of persons acting together) holding 10.0% of the Company’s capital stock in the form of Series B shares is entitled to elect one director. The shareholders of Series BB shares will have the right to appoint two members and their respective alternates. The remaining positions on the Board of Directors will be filled based on the vote of all holders of Series B shares, including those Series B holders that were entitled to elect a director by virtue of their owning 10.0% of the Company’s capital stock. The candidates to be considered for election as directors by the Series B stockholders will be proposed to the stockholders’ meeting by the Nominations and Compensation Committee. All directors are elected based on a simple majority of the votes cast at the relevant stockholders’ meeting. The Bylaws do not currently require mandatory retirement of directors after they reach a certain age. The compensation of the Company’s directors is proposed by the Nominations and Compensation Committee to all of the Company’s stockholders at stockholders’ meetings for their approval.
The number of directors to be elected by the holders of Series B shares is to be determined based on the number of directors elected by persons holding Series B shares representing 10% (individually or as a group) of the Company’s capital stock and by the holders of the Series BB shares. If less than seven directors are elected by 10.0% stockholders exercising their right to elect one director and by the holders of the Series BB shares, the total number of directors to be elected by the Series B holders will be such number as is required to reach seven. If seven directors are elected by 10.0% stockholders exercising their right to elect one director and by the holders of the Series BB shares, the Series B stockholders will be entitled to elect two directors in addition to those elected by 10.0% stockholders. If more than seven directors are elected by 10.0% stockholders exercising their right to elect one director and the holders of the Series BB shares, the Series B stockholders will be entitled to elect one or two directors in addition to the directors elected by 10.0% stockholders (individually or as a group) (depending on which number will result in an odd number of directors).
F.Right of Withdrawal.
Any stockholder having voted against a resolution validly adopted at a meeting of the Company’s stockholders with respect to (i) a change in the Company’s corporate purpose or nationality, (ii) a change of corporate form, (iii) a merger involving the Company in which the Company is not the surviving entity or the dilution of its capital stock by more than 10.0%, or (iv) a spin-off, may request redemption of its shares, provided that the relevant request is filed with the Company within 15 days following the holding of the relevant stockholders’ meeting. The redemption of the stockholders’ shares will be effected at the lower of (a) 95.0% of the average trading price determined on the closing prices of the Company’s shares over the last thirty days on which trading in the Company’s shares took place prior to the date on which the relevant resolution becomes effective, during a period not longer than six months (provided that in the event the number of days on which shares have been traded in the six month period is less than thirty, all days on which the shares were traded shall be taken into consideration in such determination), or (b) the book value of the shares in accordance with the Company’s most recent audited financial statements approved by the Company’s stockholders’ meeting. Pursuant to the Mexican Securities Market Law and the Bylaws, the Company’s stockholders have waived the right to redeem their variable capital contributions as provided in the Mexican Ley General de Sociedades Mercantiles (General Law of Business Corporations).
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G.Registration and Transfer.
The Company’s shares are registered with the Registro Nacional de Valores (Mexican Securities Registry), as required under the Mexican Ley del Mercado de Valores (Securities Market Law) and regulations issued by the Mexican Comision Nacional Bancaria y de Valores (Banking and Securities Commission, or CNBV). In the event that the registration of the Company’s shares with the Mexican Securities Registry is cancelled, the Company will be required to make a public offer to purchase all outstanding shares prior to such cancellation. Unless the CNBV authorizes otherwise, the public offer price shall be the higher of the weighted average trading price (based on volume) for the Company’s shares for the most recent thirty days on which the price of the shares has been quoted during the six months prior to the commencement of the public offer; provided that in the event the number of days on which shares have been quoted during such six-month period is less than thirty, the days on which the shares were quoted shall be taken into consideration; or if no shares traded during such period, the book value (valor contable) of the shares as calculated in accordance with the most recent quarterly report submitted to the CNBV, the Mexican Stock Exchange and the Institutional Stock Exchange. Notwithstanding the foregoing, the Company may be exempted from making the public offer if (i) at least 95.0% of stockholders express their consent, (ii) the aggregate amount of the public offer is lower than 300,000 investment units (unidades de inversion or “UDIs”), and (iii) sufficient resources are transferred to a trust with a minimum term of six months specifically created for purposes of purchasing, at the same price of the offer, the shares of the stockholders that do not tender their shares. Any amendments to the foregoing provisions included in the Bylaws require the prior approval of the CNBV and approval by a resolution of an extraordinary stockholders’ meeting adopted by shares representing at least 95.0% of the Company’s outstanding capital stock.
Any offering that is undertaken in Mexico by the Company or any selling stockholder must either (i) comply with the public offering requirements set forth in the Mexican Securities Market Law and applicable rules and regulations issued by the CNBV or (ii) be carried out as a private placement pursuant to Article 8 of the Mexican Securities Market Law.
H.Changes in Capital Stock.
Increases and reductions of the Company’s minimum fixed capital must be approved at an extraordinary stockholders’ meeting, subject to the provisions of the Bylaws and the Mexican General Law of Business Corporations. Increases or reductions of the variable capital must be approved at an ordinary stockholders’ meeting in compliance with the voting requirements of the Bylaws.
The Company may issue unsubscribed shares that will be kept in the treasury, to be subsequently subscribed by the investing public, provided that (i) the general extraordinary stockholders’ meeting approves the maximum amount of the capital increase and the conditions on which the corresponding placement of shares shall be made, (ii) the subscription of issued shares is made through a public offer after registration in the Mexican National Securities Registry, complying, in either case, with the provisions of the Mexican Securities Market Law and other applicable law and (iii) the amount of the subscribed and paid-in capital of the Company is announced when the Company makes the authorized capital increase public.
5
The preferential subscription right provided under Article 132 of the Mexican General Law of Business Corporations is not applicable to capital increases through public offers of unsubscribed shares issued pursuant to Article 53 of the Mexican Securities Market Law or repurchased shares issued pursuant to Article 56 of the Mexican Securities Market Law.
The stockholders will have a preferential right to subscribe shares in the event of a capital increase, in proportion to the number of shares held by each at the time the increase is approved pursuant to the provisions of Article 132 of the General Law of Business Corporations, as established hereinafter, unless the subscription offer is made under the provisions of Article 53 or Article 56 of the Mexican Securities Market Law, or in the case of an issuance of shares kept in the Treasury for conversion of debentures in terms of Article 210 of the Mexican Ley General de Titulos y Operaciones de Credito (General Law of Negotiable Instruments and Credit Transactions).
The Company’s capital stock may be reduced by resolution of a stockholders’ meeting taken pursuant to the rules applicable to capital increases. The Company’s capital stock may also be reduced by repurchase of the Company’s own stock in accordance with the Mexican Securities Market Law. Shares of the Company’s capital stock belonging to the Company may not be represented or voted in stockholders’ meetings, nor may corporate or economic rights of any kind be exercised, nor will the shares be considered as outstanding for the purpose of determining the quorum and the votes in stockholders’ meetings.
I.Liquidation.
Upon the Company’s dissolution, one or more liquidators must be appointed at an extraordinary stockholders’ meeting to wind up the Company’s affairs. All fully paid and outstanding shares will be entitled to participate equally in any distribution upon liquidation. Partially paid shares participate in any distribution in the same proportion that such shares have been paid at the time of the distribution.
J.Ownership Restrictions.
Holders of the Company’s shares are subject to the following restrictions:
| ● | subject to the tender offer procedures described below, holders of Series B shares, either individually or together with their related persons, will have no ownership limitation whatsoever with regard to the shares representing such series; |
| ● | Series BB shares may represent no more than 15.0% of the Company’s outstanding capital stock; and |
| ● | subject to the tender offer procedures described below, holders of Series BB shares, either individually or together with their related persons, may also own Series B shares without limitation. |
Any amendment to the above provisions requires the vote of shares representing 85.0% of the Company’s capital stock.
6
| ● | no more than 5.0% of the Company’s outstanding capital stock may be owned by air carriers; and |
| ● | foreign governments acting in a sovereign capacity may not directly or indirectly own any portion of the Company’s capital stock. |
Air carriers and their subsidiaries and affiliates are not permitted, directly or indirectly, to “control” ASUR or any of the Company’s subsidiary concession holders.
Under the Mexican Airport Law and the Mexican Foreign Investments Law, foreign persons may not directly or indirectly own more than 49.0% of the capital stock of a holder of an airport concession unless an authorization from the Mexican Commission of Foreign Investments is obtained. The Company obtained this authorization in 1999 and as a consequence these restrictions do not apply to the Company’s Series B or Series BB shares.
The Company’s subsidiaries may not, directly or indirectly, invest in the Company’s shares or shares of any parent company of ASUR, unless such subsidiaries acquired the Company’s shares to comply with employee stock option or stock sale plans that are established, granted or designed in favor of the employees or officers of such subsidiaries or through investment companies (sociedades de inversion). The number of shares acquired for such purpose may not exceed 15.0% of the Company’s outstanding capital stock.
K.Change of Control and Tender Offer Procedures.
Under the Bylaws and applicable Mexican law, any person or group that intends to acquire, directly or indirectly, ownership of 30.0% or more of the Company’s ordinary shares through one or more transactions must make the acquisition through a public offer in accordance with applicable law and the following provisions of the Bylaws:
| ● | The offer must include both of the Company’s series of shares, and the consideration offered per share must be the same, regardless of the class or type of share. |
| ● | If the offeror intends to obtain control of the Company, the offer must be for 100.0% of the Company’s capital stock, and if the offer does not imply obtaining control, then the offer must be for at least 10.0% of the Company’s capital stock. |
| ● | The offer must indicate the maximum number of shares it covers and, if applicable, the minimum number of shares on which the offer is conditioned. |
| ● | The offer may not provide any consideration that implies a bonus or higher price to the amount of the offer in favor of any person or group of persons related to the offeree (not including agreements that have been approved by the Board of Directors of the Company, taking into account the opinion of the Company’s Auditing Committee, and have been disclosed to the investing public). |
Such public offers will require prior approval from the majority of the members of the Board of Directors appointed for each one of the series of shares of the Company’s capital stock.
7
In case the offeror intends to acquire control of the Company, the provisions of the Securities Market Law relative to shareholders’ meetings and shareholders’ rights, insofar as they do not conflict with the provisions of this section, will apply.
For the purposes of the above, the following rules and procedures will apply under Mexican law and the Bylaws:
| ● | The offeror must inform the Company, through the Board of Directors, of the terms and conditions of the offer it intends to make by sending a notice to the Board of Directors. |
| ● | Immediately after it receives the notice, the Board of Directors must provide to the Mexican Stock Exchange a notice of applicable legal provisions, and make it available to all the Company’s shareholders. |
| ● | The Board of Directors must prepare, considering the opinion of the Audit and Corporate Practices Committee, its opinion with regard to the price or consideration offered, any other terms and conditions of the offer and conflicts of interest, if any, that each member of the Board of Directors may have with respect to the offer. This opinion may include the opinion of an independent expert retained by the Board. |
| ● | The Board of Directors will provide this opinion to the investing public through the Mexican Stock Exchange within three months after receipt of the offer notice, at the latest. |
| ● | The members of the Board of Directors and the Company’s chief executive officer of the Company must disclose to the investing public, along with the opinions mentioned above, as applicable, the decision they will take in connection with their own shares. |
| ● | If the Board approves the terms and conditions of any offer, the offeror must obtain prior authorization from the Ministry of Communications and Transportation for the “change of control” prior to the commencing the public offer. See “Item 4. Information on the Company—Mexican Regulatory Framework—Reporting, Information and Consent Requirements.” |
| o | For purposes of the preceding item exclusively, and in accordance with the provisions of Article 23 of the Mexican Airport Law, a person or group of persons shall be deemed to have control when it owns 35.0% or more of the capital stock of the Company, has control of the general shareholders’ meetings, or is able to appoint the majority of the members in charge of management or otherwise control the Company. |
| ● | If the holders of the Series BB shares express their interest in accepting an offer (which does not imply any obligation on their part to participate in such offer), the launching of the offer shall be conditioned upon obtaining prior authorizations |
8
from the Ministry of Communications and Transportation, including those relating to the transfer of the Series BB shares and the replacement of ITA in its capacity as strategic partner under the technical assistance agreement.
| ● | If the Board approves the terms and conditions of an offer, the offeror must complete the other acts that are necessary for the purpose of carrying out the offer. That includes, among other things, obtaining the authorization of the Ministry of Communications and Transportation, as well as providing the notifications required by applicable law. |
2.Description of American Depositary Shares.
A.General.
Pursuant to the Company’s form F-1 filed with the SEC on September 7, 2000 (Commission file No. 333-12486), the Company registered ADSs which are represented by American Depositary Receipts (“ADRs”) in a sponsored facility. The deposit agreement, dated as of September 28, 2000, is among the Company, The Bank of New York Mellon, as ADR depositary, (the “Bank of New York” or the “Depositary”) and all holders from time to time of ADRs issued thereunder (the “Deposit Agreement”). Copies of the Deposit Agreement are also on file at the Depositary’s corporate trust office and the office of the Mexican custodian for the Depositary, S.D. Indeval, Instituto para el Depósito de Valores, S.A. de C.V. They are open to inspection by owners and holders during business hours. The Depositary’s corporate trust office is located at 101 Barclay Street, New York, New York 10286.
The Bank of New York registers and delivers ADSs. Each ADS represents 10 Series B shares (or a right to receive 10 Series B shares). Each ADS will also represent any other securities, cash or other property which may be held by the Depositary.
ADS holders may hold ADSs either (A) directly by having an ADR, which is a certificate evidencing a specific number of ADSs, registered in their name, or (B) indirectly by holding a security entitlement in ADSs through their broker or other financial institution. An ADS holder who holds ADSs directly is a registered ADS holder, also referred to as an ADS holder (“ADS Holder”, and collectively “ADS Holders”). An ADS holder who holds their ADSs indirectly, must rely on the procedures of their broker or other financial institution to assert the rights of ADS holders described in this exhibit. ADS holders who hold their ADSs indirectly should consult with their broker or financial institution to find out what those procedures are.
The Depositary will be the holder of the Series B shares underlying an ADS Holder’s ADSs. As a registered holder of ADSs, an ADS Holder will have ADS holder rights. The Deposit Agreement sets out ADS holder rights as well as the rights and obligations of the Depositary. New York law governs the Deposit Agreement and the ADSs. The Company will not treat an ADS Holder as one of its stockholders and an ADS Holder will not have stockholder rights. Mexican law governs stockholder rights.
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B.Dividends and Other Distributions.
The Depositary has agreed to pay ADS Holders the cash dividends or other distributions it or the custodian receives on Series B shares or other deposited securities, after deducting its fees and expenses. An ADS Holder will receive these distributions in proportion to the number of Series B shares their ADSs represent.
| ● | Cash. The Depositary will convert any cash dividend or other cash distribution the Company pays on the Series B shares into U.S. dollars, if it can do so on a reasonable basis and can transfer the U.S. dollars to the United States. If that is not possible or if any government approval is needed and cannot be obtained, the Deposit Agreement allows the Depositary to distribute the foreign currency only to those ADS holders to the extent permissible to do so. It will hold the foreign currency it cannot convert for the account of the ADS holders who have not been paid. It will not invest the foreign currency and will not be liable for any interest. |
Before making a distribution, the Depositary will deduct any withholding taxes that must be paid. It will distribute only whole U.S. dollars and cents and will round fractional cents to the nearest whole cent. If the exchange rates fluctuate during a time when the Depositary cannot convert the foreign currency, an ADS Holder may lose some or all of the value of the distribution.
| ● | Shares. The Depositary may distribute additional ADSs representing any shares the Company distributes as a dividend or free distribution. The Depositary will only distribute whole ADSs. It will try to sell shares that would require it to deliver fractions of ADSs and distribute the net proceeds in the same way as it does with cash. If the Depositary does not distribute additional ADSs, the outstanding ADSs will also represent the new shares. |
| ● | Rights to purchase additional shares. If the Company offers holders of its securities any rights to subscribe for additional shares or any other rights, the Depositary may, after consultation with the Company, make these rights available to ADS Holders (including by any means of warrants or otherwise, if the Depositary determines it is feasible and lawful to do so) or sell the rights and distribute the proceeds in the same way as it does with cash. |
The Depositary will not offer rights to holders unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act or are registered under the provisions of the Securities Act.
| ● | Other Distributions. The Depositary will send to an ADS Holder anything else the Company distributes on deposited securities, in proportion to the number of ADSs an ADS Holder holds, by any means the Company deems equitable and practicable; provided, however, if the Company determines the distribution cannot be made proportionately among the holders, or if the distribution is otherwise not feasible, the Depositary may adopt such method as it may deem equitable and practicable, |
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including the sale of such property and the distribution of the net proceeds thereof in the same manner as cash distributions.
The Depositary is not responsible if it decides that it is unlawful or impractical to make a distribution available to any ADS holders provided that the Depositary has not acted negligently or in bad faith.
C.Deposit and Withdrawal.
The Depositary will deliver ADSs upon the deposit of Series B shares with the custodian, subject to an ADS Holder’s delivery to the Depositary or the custodian of any certificates required under the Deposit Agreement and payment of its fees and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees. The Depositary will register the appropriate number of ADSs in the names the ADS Holder requests.
D.Voting Rights.
An ADS Holder will not be entitled to attend stockholder’s meetings, but it may instruct the Depositary to vote the Series B shares underlying their ADSs. If the Company asks for an ADS Holder’s instructions, the Depositary will notify the ADS Holder of the upcoming vote and arrange to deliver the Company’s voting materials to the ADS Holder. The materials will describe the matters to be voted on and explain how an ADS Holder may instruct the Depositary to vote the Series B shares or other deposited securities underlying the ADS Holder’s ADSs as it directs by a specified date.
If the Depositary does not receive voting instructions from the ADS Holder by the specified date, it will consider the ADS Holder to have authorized and directed it to vote the number of deposited securities represented by the ADS Holder’s ADSs on any question in the same proportion that all other shares of capital stock of the Company are voted on such question at the relevant stockholders’ meeting.
The Company cannot assure an ADS Holder that it will receive the voting materials in time to ensure that it can instruct the Depositary to vote their Series B shares. This means that an ADS Holder may not be able to exercise their right to vote and there may be nothing it can do if their Series B shares are not voted as it requested.
E.Payment of Taxes.
ADS Holders will be responsible for any taxes or other governmental charges payable on ADSs or on the deposited securities represented by any ADSs. The Depositary may refuse to register any transfer of ADSs or allow withdrawal of the deposited securities represented by ADSs until such taxes or other charges are paid. It may apply payments owed to ADS Holders or sell deposited securities represented by an ADS Holder’s ADSs to pay any taxes owed and such holder will remain liable for any deficiency. If the Depositary sells deposited securities, it will, if appropriate, reduce the number of ADSs to reflect the sale and pay to ADS holders any proceeds, or send to ADS holders any property, remaining after it has paid the taxes.
F.Reclassifications, Recapitalizations and Mergers
11
Upon any change in par value, split-up, consolidation or any other reclassification or deposited securities, or upon any recapitalization, reorganization, merger or consolidation or sale of assets affecting the Company or to which the Company is a party, any securities received by the Depositary or custodian in exchange for or in conversion of such securities will be treated as additional securities, and the underlying ADSs will represent, in addition to the Series B shares underlying the ADSs, the right to receive such new securities in exchange for conversion, unless, at the Company’s request and with the Company’s approval, the Depositary delivers additional ADRs.
G.Amendment and Termination
The Company may agree with the Depositary to amend the Deposit Agreement and the ADSs without the ADS Holder’s consent for any reason. If an amendment adds or increases fees or charges, except for taxes and other governmental charges, or prejudices a substantial right of ADS Holders, it will not become effective for outstanding ADSs until 30 days after the Depositary notifies ADS Holders of the amendment. At the time an amendment becomes effective, an ADS Holder is considered, by continuing to hold their ADSs, to agree to the amendment and to be bound by the ADSs and the Deposit Agreement as amended.
The Depositary will terminate the Deposit Agreement if the Company asks it to do so. The Depositary may also terminate the Deposit Agreement if the Depositary has told the Company that it would like to resign and the Company has not appointed a new depositary bank within 90 days. In either case, the Depositary must notify an ADS Holder at least 30 days before termination.
After termination, the Depositary and its agents will do the following under the Deposit Agreement but nothing else: (a) collect distributions on the deposited securities, (b) sell rights and other property and (c) deliver Series B shares, dividends and other distributions, proceeds of any sale and other deposited securities upon surrender of ADSs. Two years or more after termination, the Depositary may sell any remaining deposited securities by public or private sale. After that, the Depositary will hold the money it received on the sale, as well as any other cash it is holding under the Deposit Agreement for the pro rata benefit of the ADS holders that have not surrendered their ADSs. It will not invest the money and has no liability for interest. The Depositary’s only obligations will be to account for the money and other cash. After termination the Company’s only obligations will be to indemnify the Depositary and to pay fees and expenses of the Depositary that the Company agreed to pay.
H.Limitations on Obligations and Liability
The Deposit Agreement expressly limits the Company’s obligations and the obligations of the Depositary. It also limits the Company’s liability and the liability of the Depositary. Each of the Company and the Depositary:
| ● | are only obligated to take the actions specifically set forth in the Deposit Agreement with good faith using reasonable efforts; |
12
| ● | are not liable if it is prevented or delayed by law or circumstances beyond its control from performing its obligations under the Deposit Agreement; |
| ● | are not liable if it exercises discretion permitted under the Deposit Agreement; |
| ● | have no obligation to become involved in a lawsuit or other proceeding related to the ADSs or the Deposit Agreement unless it receives an indemnity satisfactory to it; and |
| ● | may rely upon any advice or information from any person it believes in good faith to be competent to give such advice or information. |
In the Deposit Agreement, the Company agrees to indemnify the Depositary for acting as depositary, except for losses caused by the Depositary’s own negligence or bad faith, and the Depositary agrees to indemnify the Company for losses resulting from its negligence or bad faith.
I.Requirements for Depositary Actions
Before the Depositary will deliver or register a transfer of ADSs, make a distribution on ADSs, or permit withdrawal of shares or other property, the Depositary may require:
| ● | payment of stock transfer or other taxes or other governmental charges and transfer or registration fees charged by third parties for the transfer of any Series B shares or other deposited securities; |
| ● | satisfactory proof of the identity and genuineness of any signature or other information it deems necessary; and |
| ● | compliance with regulations it may establish, from time to time, consistent with the Deposit Agreement, including presentation of transfer documents. |
The Depositary may refuse to deliver ADSs or register transfers of ADSs generally when the transfer books of the Depositary or the Company’s transfer books are closed or at any time if the Depositary or the Company thinks it advisable to do so.
J.An ADS Holder’s Right to Receive the Series B Shares Underlying their ADSs
An ADS Holder has the right to withdraw the Series B shares underlying their ADSs at any time except:
| ● | when the Depositary has closed its transfer books or the Company has closed its transfer books; |
| ● | when the ADS Holder owes money to pay fees, taxes and similar charges; or |
| ● | when it is deemed necessary or advisable by the Company or the Depositary, for any reason, at any time, to prohibit withdrawals in order to comply with any laws, |
13
governmental regulations or requirements of any securities exchange that apply to ADSs or to the withdrawal of Series B shares or other deposited securities.
This right of withdrawal may not be limited by any other provision of the Deposit Agreement.
14
Exhibit 4.19
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Board File
No. LAA-8613
LOS ANGELES INTERNATIONAL AIRPORT
TERMINAL COMMERCIAL MANAGEMENT
CONCESSION AGREEMENT
By and between
THE CITY OF LOS ANGELES,
DEPARTMENT OF AIRPORTS
and
WESTFIELD CONCESSION MANAGEMENT, LLC
Dated March 1, 2012
TABLE OF CONTENTS
|
|
Page |
|
I |
PRE-TERM DEVELOPMENT PLANNING |
3 |
|
|
1.1 |
TCM’s Obligations During Pre-Term Development Phase |
3 |
|
1.2 |
Concession Location Areas |
3 |
|
1.3 |
Definitive Improvement Plan |
5 |
|
1.4 |
Contents of Definitive Improvement Plan |
6 |
|
1.5 |
Time for Submission of Definitive Improvement Plan |
8 |
|
1.6 |
Response to Comments by the Executive Director |
9 |
|
1.7 |
Rejection of Definitive Improvement Plan |
9 |
|
1.8 |
Approval of Definitive Improvement Plan |
10 |
|
1.9 |
Time for Approval of Definitive Improvement Plans |
13 |
|
1.10 |
Delivery; Notice of Delivery |
13 |
|
1.11 |
High Priority Area; Late Performance Fees |
14 |
|
1.12 |
Construction of Initial Non-Premises Improvements |
17 |
|
1.13 |
Acquisition of Initial Non-Premises Improvements |
19 |
II |
PREMISES; PRIMARY TERM; EARLY TERMINATION |
21 |
|
|
2.1 |
Premises; Units; TCM Common Areas; TCM Storage Premises |
21 |
|
2.2 |
Primary Term |
22 |
|
2.3 |
Early Termination for Failure to Meet Performance Metrics |
23 |
|
2.4 |
Surrender |
25 |
III |
TERMINAL COMMERCIAL MANAGER RIGHTS AND DUTIES |
25 |
|
|
3.1 |
Terminal Commercial Manager |
25 |
|
3.2 |
Business and Operations Plan |
26 |
i
TABLE OF CONTENTS (cont.)
|
3.3 |
Unit Concession Agreements |
27 |
|
3.4 |
Permitted Uses |
29 |
|
3.5 |
Airport-wide Concessions |
30 |
|
3.6 |
General Obligation to Operate |
31 |
|
3.7 |
Right to Promote Products; Restriction on Advertising |
31 |
|
3.8 |
Quiet-Enjoyment |
31 |
|
3.9 |
As-Is Condition |
32 |
|
3.10 |
Rights are Not Exclusive |
32 |
|
3.11 |
General Disputes |
32 |
|
3.12 |
No Other Uses |
33 |
|
3.13 |
Rules and Regulations |
33 |
|
3.14 |
Storage Space |
33 |
|
3.15 |
Common Areas |
33 |
|
3.16 |
Public Address System |
34 |
|
3.17 |
Wireless Communications |
34 |
|
3.18 |
Pricing |
34 |
|
3.19 |
Airport Employee Discount |
35 |
IV |
PAYMENTS BY TCM |
35 |
|
|
4.1 |
Base Rent; Minimum Annual Guaranteed Rent; Percentage Rent; Storage Premises Rent |
35 |
|
4.2 |
No Abatement |
40 |
|
4.3 |
Additional Charges |
40 |
|
4.4 |
Utilities |
40 |
|
4.5 |
Refuse Removal |
41 |
ii
TABLE OF CONTENTS (cont.)
|
4.6 |
Other Fees and Charges |
41 |
|
4.7 |
Method of Payment |
41 |
|
4.8 |
Books and Records |
43 |
|
4.9 |
Taxes |
44 |
|
4.10 |
Faithful Performance Guarantee |
45 |
|
4.11 |
MAG Adjustment for Enplanement Decline |
46 |
V |
OPERATING STANDARDS |
48 |
|
|
5.1 |
Operating Standards |
48 |
|
5.2 |
Staffing and Personnel |
48 |
|
5.3 |
TCM’s Key Personnel |
50 |
|
5.4 |
Hours of Operation |
50 |
|
5.5 |
Monthly Sales Reports; Credit Cards |
50 |
|
5.6 |
Deliveries; Access and Coordination |
51 |
|
5.7 |
Quality Assurance Audits |
52 |
|
5.8 |
Prohibited Acts |
52 |
|
5.9 |
Signs, Promotions & Displays |
54 |
|
5.10 |
Licenses and Permits |
55 |
|
5.11 |
Compliance with Laws |
55 |
|
5.12 |
Airport Operations |
56 |
VI |
AIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISE PROGRAM |
56 |
|
|
6.1 |
Compliance with Department of Transportation (DOT) |
56 |
|
6.2 |
Substitutions |
56 |
|
6.3 |
Monthly Report |
56 |
iii
TABLE OF CONTENTS (cont.)
VII |
IMPROVEMENTS AND REFURBISHMENTS |
57 |
|
|
7.1 |
TCM’s Construction Obligations |
57 |
|
7.2 |
Prevailing Wage |
57 |
|
7.3 |
Condition of Premises on Delivery Date |
57 |
|
7.4 |
Construction of Initial Premises Improvements |
58 |
|
7.5 |
Improvement Financial Obligation |
60 |
|
7.6 |
Mid-Term Refurbishment |
61 |
|
7.7 |
City Approval of Improvements |
61 |
|
7.8 |
Further Provisions Regarding Design and Construction |
62 |
|
7.9 |
Alterations |
63 |
|
7.10 |
Building Codes |
63 |
|
7.11 |
Workers’ Compensation |
63 |
|
7.12 |
Improvement Payment and Performance Bond |
63 |
|
7.13 |
Telecommunications Facilities |
64 |
|
7.14 |
Deliveries upon Completion |
65 |
|
7.15 |
No Liens |
66 |
|
7.16 |
Ownership of Improvements |
66 |
VIII |
MAINTENANCE AND REPAIR |
67 |
|
|
8.1 |
Maintenance and Repair |
67 |
|
8.2 |
Cleaning and Routine Upkeep |
67 |
|
8.3 |
Maintenance of Plumbing |
68 |
|
8.4 |
City May Repair |
68 |
|
8.5 |
Right to Enter Premises |
68 |
iv
TABLE OF CONTENTS (cont.)
|
8.6 |
Provision of Utilities |
69 |
|
8.7 |
Pest Control |
69 |
|
8.8 |
Evidence of Payment |
70 |
|
8.9 |
Prevailing Wage |
70 |
IX |
TERMINATION FOR CONVENIENCE; TERMINATION PAYMENTS; QUALIFIED INVESTMENTS |
70 |
|
|
9.1 |
Termination for Convenience |
70 |
|
9.2 |
Termination Payment |
71 |
|
9.3 |
Qualified Investments Defined |
74 |
|
9.4 |
Additional Conditions Applicable to Qualified Investments |
74 |
X |
AIRPORT CONSTRUCTION; AIRPORT OPERATIONS |
76 |
|
|
10.1 |
Airport Construction; Airport Operations |
76 |
|
10.2 |
No Right to Temporary Premises |
76 |
XI |
TERMINATION/CANCELLATION |
77 |
|
|
11.1 |
Defaults |
77 |
|
11.2 |
City’s Remedies |
79 |
|
11.3 |
Right to Remove Equipment |
82 |
|
11.4 |
Surrender to be in Writing |
82 |
|
11.5 |
Additional Rights of City |
82 |
|
11.6 |
Acceptance Is Not a Waiver |
82 |
|
11.7 |
Waiver Is Not Continuous |
82 |
|
11.8 |
Waiver of Redemption and Damages |
83 |
|
11.9 |
Survival of TCM’s Obligations |
83 |
|
11.10 |
Cancellation or Termination By TCM |
83 |
v
TABLE OF CONTENTS (cont.)
|
11.11 |
Damaged Improvements |
83 |
|
11.12 |
Service During Removal |
83 |
|
11.13 |
City May Renovate |
84 |
|
11.14 |
Viewing By Prospective Competitors |
84 |
|
11.15 |
Tenancy at Sufferance |
84 |
XII |
DAMAGE OR DESTRUCTION TO PREMISES |
84 |
|
|
12.1 |
Damage or Destruction to Premises |
84 |
|
12.2 |
Limits of City’s Obligations |
85 |
|
12.3 |
Destruction Near End of Term |
85 |
|
12.4 |
Destruction of Facility |
86 |
|
12.5 |
Waiver |
86 |
XIII |
LIABILITY |
86 |
|
|
13.1 |
Liability |
86 |
|
13.2 |
City Held Harmless |
86 |
|
13.3 |
Insurance |
87 |
XIV |
TRANSFER |
89 |
|
|
14.1 |
Transfer Prohibited |
89 |
|
14.2 |
Transfer |
89 |
|
14.3 |
Unit Concession Agreements Not A Transfer |
90 |
|
14.4 |
No Further Consent Implied |
90 |
|
14.5 |
No Release |
90 |
|
14.6 |
Payment of City’s Costs |
90 |
|
14.7 |
Incorporation of Terms |
90 |
vi
TABLE OF CONTENTS (cont.)
|
14.8 |
Right to Collect Rent Directly |
90 |
|
14.9 |
Reasonableness of Restrictions |
91 |
|
14.10 |
Transfer Premium |
91 |
XV |
HAZARDOUS MATERIALS |
91 |
|
|
15.1 |
Hazardous Materials |
91 |
|
15.2 |
Prohibition; TCM Responsibility |
92 |
|
15.3 |
Spill - Clean-Up |
93 |
|
15.4 |
Provision to City of Environmental Documents |
93 |
|
15.5 |
Hazardous Materials Continuing Obligation |
94 |
XVI |
OTHER PROVISIONS |
94 |
|
|
16.1 |
Other Provisions |
94 |
|
16.2 |
Cross Default |
94 |
|
16.3 |
City’s Right of Access and Inspection |
94 |
|
16.4 |
Automobiles and Other Equipment |
94 |
|
16.5 |
Notices |
95 |
|
16.6 |
Agent for Service of Process |
95 |
|
16.7 |
Restrictions and Regulations |
96 |
|
16.8 |
Right to Amend |
96 |
|
16.9 |
Independent Contractor |
96 |
|
16.10 |
Disabled Access |
97 |
|
16.11 |
Child Support Orders |
97 |
|
16.12 |
Business Tax Registration |
97 |
|
16.13 |
Ordinance and Los Angeles Administrative Code (“Code”) Language Governs |
98 |
vii
TABLE OF CONTENTS (cont.)
|
16.14 |
Amendments to Ordinances and Codes |
98 |
|
16.15 |
Non-Discrimination and Affirmative Action Provisions |
98 |
|
16.16 |
Security - General |
99 |
|
16.17 |
Visual Artists’ Rights Act |
100 |
|
16.18 |
Living Wage Ordinance General Provisions |
100 |
|
16.19 |
Service Contract Worker Retention Ordinance |
102 |
|
16.20 |
Equal Benefits Ordinance |
102 |
|
16.21 |
Contractor Responsibility Program |
103 |
|
16.22 |
First Source Hiring Program for Airport Employers |
103 |
|
16.23 |
Environmentally Favorable Options |
103 |
|
16.24 |
Municipal Lobbying Ordinance |
103 |
|
16.25 |
Labor Peace Agreement |
103 |
|
16.26 |
Alternative Fuel Vehicle Requirement Program |
104 |
|
16.27 |
Ownership of Work Product |
104 |
|
16.28 |
Estoppel Certificate |
104 |
|
16.29 |
Subordination of Agreement |
104 |
|
16.30 |
Laws of California; Venue |
104 |
|
16.31 |
Agreement Binding Upon Successors |
104 |
|
16.32 |
Attorneys’ Fees |
104 |
|
16.33 |
Entire Agreement |
105 |
|
16.34 |
Conditions and Covenants |
105 |
|
16.35 |
Gender and Plural Usage |
105 |
|
16.36 |
Time is of the Essence; Days |
105 |
viii
TABLE OF CONTENTS (cont.)
|
16.37 |
Void Provision |
105 |
|
16.38 |
Construction and Interpretation |
105 |
|
16.39 |
Section Headings |
106 |
|
16.40 |
Waiver of Claims |
106 |
|
16.41 |
Waiver |
106 |
|
16.42 |
Representations of TCM |
106 |
|
16.43 |
TCM Acknowledgement and Waiver |
107 |
|
16.44 |
Parties In Interest |
108 |
|
16.45 |
City Approval |
108 |
|
16.46 |
Board Order AO-5077 Exemption |
108 |
|
16.47 |
Compliance with Los Angeles City Charter Section 470(c)(12) |
108 |
LIST OF EXHIBITS
Exhibit A-1:TBIT - Area 1
Exhibit A-2:TBIT - Area 2
Exhibit A-3:TBIT - Area 3
Exhibit A-4:TBIT - Area 4
Exhibit A-5:Terminal 2 – Area 5
Exhibit A-6:Terminal 2 – Area 6
Exhibit A-7:Theme Building – Area 7
Exhibit B:Conceptual Plan
Exhibit C:Commencement Date Memorandum
Exhibit D:Form of Guaranty Agreement Exhibit E:Form of Storage Space Addendum
ix
TABLE OF CONTENTS (cont.)
Exhibit F:Form of Improvement Payment and Performance Bonds
Exhibit G:Insurance
Exhibit H:Form of Declaration of Compliance for Child Support
Exhibit I:Equal Employment Practices
Exhibit J:Affirmative Action Program
Exhibit K:Living Wage Ordinances
Exhibit L:Living Wage Policy Declaration of Compliance Form
Exhibit M:Service Contract Worker Retention Ordinance
Exhibit N:Contractor Responsibility Program Pledge of Compliance Rules
Exhibit O:First Source Hiring Program
Exhibit P:Alternative Fuel Vehicle Program Regulations
x
TABLE OF DEFINED TERMS
i
TABLE OF DEFINED TERMS (cont.)
ii
TABLE OF DEFINED TERMS (cont.)
iii
TABLE OF DEFINED TERMS (cont.)
iv
TABLE OF DEFINED TERMS (cont.)
v
LOS ANGELES INTERNATIONAL AIRPORT
TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT
THIS LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT (this “Agreement”), is made and entered into as of March 1, 2012, by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (“City”), acting by order of and through its Board of Airport Commissioners (“Board”), and WESTFIELD CONCESSION MANAGEMENT, LLC, a Delaware limited liability company (“TCM”), with reference to the following Basic Information and the following Recitals.
BASIC INFORMATION
The following Basic Information (“Basic Information”) contains a summary of certain information contained in this Agreement, and such Basic Information is subject to further explanation or definition elsewhere in this Agreement. The initially-capitalized terms used in this Agreement shall have the respective meanings ascribed to such terms in this Agreement, unless the context otherwise requires. The Basic Information and this Agreement are and shall be construed as a single instrument and are referred to herein as the “Agreement.”
Agreement Date: |
March 1, 2012 |
City: |
THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation, acting by order of and through its Board of Airport Commissioners |
City’s Address: |
Department of Airports 1 World Way Post Office Box 92216 Los Angeles, California 90009-2216 or such other address as may be designated in a written notice from Executive Director in accordance with Section 16.5.1. |
|
All notices sent to City under this Agreement shall be sent to the above address, with copies to: Office of City Attorney 1 World Way Post Office Box 92216 Los Angeles, California 90009-2216 or to such other address as may be designated in a written notice from Executive Director in accordance with Section 16.5.1. |
|
All rent amounts and fees payable to City or LAWA hereunder shall be made payable to: the City of Los Angeles, Department of Airports and shall be wire transferred to City’s bank account as designated in writing by the Executive Director or shall be mailed to: City of Los Angeles, Department of Airports |
1
|
Post Office Box 92216 Los Angeles, California 90009-2216 Re: LAX Concession Agreement No. LAA - 8613 or to such other address as may be designated in a written notice from Executive Director in accordance with Section 16.5. |
TCM: |
Westfield Concession Management, LLC, a Delaware limited liability company |
TCM’s Address: |
Westfield Concession Management, LLC 11601 Wilshire Blvd., 11th Floor All notices sent to TCM under this Agreement shall be sent to the above address, with copies to: Westfield Concession Management, LLC Wheaton, Maryland 20902 Attention: Office of Legal Counsel Westfield Concession Management, LLC Wheaton, Maryland 20902 Attention: Senior Vice President, Airports Westfield America, Inc. 11601 Wilshire Blvd., 11th Floor or such other addresses as may be designated in a written notice from TCM in accordance with Section 16.5. |
Registered Agent: |
TCM’s registered agent for service of process is: CT Corporation System 818 West 7th Street Los Angeles, California 90017 or such other Registered Agent as may be designated in a written notice from TCM in accordance with Section 16.5. |
Effective Date: |
March 1, 2012 |
Expiration Date: |
Janary 31, 2029 |
Faithful Performance Guarantee: |
[**] |
Guarantor: |
Westfield America, Inc., a Missouri corporation. (See Exhibit “D” for form of Guaranty Agreement, which shall be executed by Guarantor concurrently with the execution of this Agreement by TCM.) |
2
RECITALS:
A.City is the owner of Los Angeles International Airport (the “Airport”), located in the City of Los Angeles, County of Los Angeles, State of California, and operates said Airport for the promotion and accommodation of air commerce and air transportation between the City of Los Angeles and other local, national and international cities; and
B.City has issued that certain Request For Proposals – Terminal Commercial Manager – Tom Bradley International Terminal, Terminal 2, and the Theme Building at Los Angeles International Airport release date May 9, 2011, as supplemented by addenda (the “RFP”); and
C.Pursuant to the RFP, TCM has been selected by City as the terminal commercial manager for the development and operation of certain concession locations within the Airport, all on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing Recitals (which are incorporated herein by this reference), the payment of the fees and charges hereinafter provided, the covenants and conditions hereinafter contained to be kept and performed, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
IPRE-TERM DEVELOPMENT PLANNING.
1.1TCM’s Obligations During Pre-Term Development Phase. Commencing on the date specified as the effective date of this Agreement (the “Effective Date”) in the written notification from the Executive Director of the Department of Airports of the City of Los Angeles (or the person or persons designated by the Executive Director to take a specified action on behalf of the Executive Director) (collectively herein, the “Executive Director”), TCM shall, at TCM’s sole cost and expense and to the full satisfaction of the Executive Director, be responsible for the planning, design and development of the food & beverage, retail, and certain other concession spaces in specified locations in the Tom Bradley International Terminal (including the Bradley West Modernization area which is a part thereof), Terminal 2, and the Theme Building at the Airport, all as more particularly identified in this Agreement and as more particularly set forth below. The Tom Bradley International Terminal (including the Bradley West Modernization area which is a part thereof) is sometimes referred to in this Agreement as “TBIT.” TBIT, Terminal 2 and the Theme Building are sometimes individually referred to herein as a “Facility” and are sometimes collectively referred to herein as the “Facilities.”
1.2Concession Location Areas. Exhibits A-1, A-2, A-3, A-4, A-5, A-6 and A-7 attached to this Agreement set forth a description of the areas within the Airport which may be made available to TCM under this Agreement to operate as terminal commercial manager, which areas are referred to herein as “TBIT - Area 1”, “TBIT - Area 2”, “TBIT - Area 3”, “TBIT Area 4”, “Terminal 2 - Area 5”, “Terminal 2 - Area 6”, and “Theme Building - Area 7”, respectively (said areas are sometimes referred to herein individually as an “Area” and collectively as the “Areas”). The Areas describe those portions of the Airport which may potentially be developed by TCM to contain concession locations contemplated by this Agreement and for which TCM may potentially act as the terminal commercial manager. TCM acknowledges and agrees that each Area only represents the general area within which the potential Premises (as defined in Section 2.1 below) may be developed pursuant to a Definitive Improvement Plan (as defined in Section 1.3 below) prepared by TCM and approved by the Executive Director. TCM acknowledges and agrees that this Agreement does not grant any rights to TCM to possess, occupy or otherwise use any of the Areas (or any portion thereof), unless and until a Definitive Improvement Plan has been approved by the Executive Director with respect to such Area identifying with specificity the actual Premises within such Area and the Executive Director has issued a Delivery Notice (as defined in Section 1.10 below) with respect to such Premises. TCM further acknowledges that: (i) certain portions of the Areas are to be developed for the use of Airport-wide Concessionaires as Airport-wide Concessions (as such terms are defined in Section 3.4 below); (ii) such areas reserved for Airport-wide Concessions will not become a part of the Premises, but rather will be separately operated pursuant to concession agreements between City and the respective Airport-wide Concessionaires; and (iii) TCM will have absolutely no rights with respect to any revenues derived by City from such Airport-wide Concessions.
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1.3Definitive Improvement Plan. Within the time and manner set forth in this Agreement, TCM, at TCM’s sole cost and expense, shall prepare and deliver to the Executive Director for review and approval (such approval not to be unreasonably, withheld, conditioned or delayed) a definitive and comprehensive plan for the development, implementation and operation of the potential Premises (containing both concession locations and support areas for concession operations, if any) within each of the Areas (herein, the “Definitive Improvement Plan”). Except as otherwise approved by the Executive Director (acting in his or her reasonable discretion), each Definitive Improvement Plan shall be a logical progression of the Conceptual Plans attached to this Agreement as Exhibit “B” (the “Conceptual Plan”). Any changes to the Conceptual Plan shall be subject to the approval of the Executive Director (acting in his or her sole discretion).
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Except as may be expressly agreed in writing by the Executive Director or as otherwise expressly set forth in this Agreement, all design and construction work contemplated by any Definitive Improvement Plan shall be performed by, and at the expense of, TCM. The Conceptual Plan sets forth as to each Area the approximate square footage and location of the Units, TCM Common Areas and TCM Storage Premises (as such terms are defined in Section 2.1 below) that are proposed to become a part of the Premises. Pursuant to the Conceptual Plan, the total approximate square footage of all of the Units within all of the Areas is 84,261, the total approximate square footage of all of the TCM Common Areas within all of the Areas is 11,491, and the total approximate square footage of all of the TCM Storage Premises within all of the Areas is 7,549.
1.4Contents of Definitive Improvement Plan. Each Definitive Improvement Plan for an Area should include, but not necessarily be limited to:
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(e)Cost estimates for the proposed construction (including construction occurring within the proposed Premises and outside the proposed Premises), including hard costs, soft costs and financing costs. Plan detail and cost estimates shall differentiate between TCM Initial Premises Improvements (as defined in Section 1.8.1 below) to be constructed by TCM at TCM’s cost, and Initial Non-Premises Improvements (as defined in Section 1.8.3). Cost information shall include proposed not-to-exceed dollar amounts for both the TCM Initial Premises Improvements and the Initial Non-Premises Improvements, and may include a contingency for any unforeseen, unknown and other building conditions which exist or may be encountered during the performance of construction by TCM or its Concessionaires (subject to the approval of the Executive Director as part of the DIP Approval (as defined in Section 1.8 below) or subject to the approval of the Executive Director as part of the CIP Approval (as defined in Section 7.4.5 below)). Such contingency may address, without limitation, work required for: (i) unforeseen structural upgrades required to support construction defined in the DIP Approval; (ii) additional capacity for utility services to allow for the development or redevelopment of the concession program in each Facility with all utility connection points (including temporary power) to be within 300 feet of each Area or Parcel; (iii) modifications or additions to the facilities energy management systems and any additional capacity in the mechanical (HVAC) base building systems to properly support the design load for improvements defined in the DIP Approval; (iv) expansion of the primary fire/life safety system to support improvements defined in the DIP Approval for each Facility with connection points accessible to the respective Area or Parcel; (v) testing, identification, remediation and removal of any Pre-Existing Hazardous Materials (as defined in Section 15.2 below); (vi) work required to remedy or comply with existing federal, state, local or municipal code violations or non-compliance which exist in each Facility and are not directly associated with the improvements defined in the DIP Approval; (vii) repairs for pre-existing damages (including leaks) to roofing systems and decks; (viii) modifications to security checkpoints or access control systems beyond the scope of work defined in the DIP Approval; and (ix) the installation of common Facility-wide grease interceptor systems for use by all Concessionaires in each Facility provided that TCM uses commercially reasonable efforts to recover such costs from its Concessionaires and remit such recovery to City (but not the installation of any individual grease trap equipment that may be required by applicable Laws to be installed in any Units which shall be at the Concessionaires’ sole expense) (the “TCM Contingencies”). In the event that the Executive Director determines that reasonable justification exists to increase the not-to-exceed dollar amount for the Initial Non-Premises Improvements set forth in a DIP Approval, then the Executive Director will use good faith efforts to recommend for approval to the Board a supplemental DIP Approval containing an adjustment to the not-to-exceed dollar amount for such Initial Non-Premises Improvements (it being understood, however, that such supplemental DIP Approval requires the approval of the Board acting in the Board’s sole and absolute discretion).
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(1)Such other information as may be reasonably requested by the Executive Director, either before or after initial submittal of the Definitive Improvement Plan.
1.5Time for Submission of Definitive Improvement Plan. Subject to delays due to events of Force Majeure (as defined below), TCM shall submit to the Executive Director the respective Definitive Improvement Plan for each Area on or before the date set forth below:
In the event that TCM fails to deliver any Definitive Improvement Plan for any Area within the time set forth above and such failure shall not be due to events of Force Majeure, then TCM shall have no further right to submit a Definitive Improvement Plan with respect to such Area, and such Area shall no longer be subject to the terms of this Agreement (and TCM shall have no right to act as terminal commercial manager with respect to such Area). The Executive Director may, in the Executive Director’s sole discretion, extend the time for delivery of any Definitive Improvement Plan. For purposes of this Agreement, the term “Force Majeure” shall mean, in relation to the conditions that may cause a party to be temporarily, partially or wholly prevented from performing its obligations to the other party under this Agreement and not for any other purpose or for any benefit of any third party: any event beyond the reasonable control of the party claiming it, including, but not limited to, embargoes, shortages of material, acts of God, acts of public enemy (such as war, (declared or undeclared), invasion, insurrection, terrorism, riots, rebellion or sabotage), acts of a governmental authority (such as the United States Department Of Transportation, the United States Federal Aviation Administration, the United States Transportation Security Administration, the United States Environmental Protection Agency and defense authorities), fires, floods, earthquakes, hurricanes, tornadoes and other extreme weather conditions; provided, however, that strikes, boycotts, lockouts, labor disputes, labor disruptions, work stoppages or slowdowns shall not be considered an event of Force Majeure. The term Force Majeure includes delays caused by governmental agencies in the processing of applicable building and safety permits but only to the extent that such processing time actually exceeds the normal and reasonable processing time period for such governmental agency permit; provided, however, that any delays caused by TCM or its Concessionaires in the processing of such permits (such as TCM’s or its Concessionaire’s failure to submit complete applications for such permits) shall not be considered a basis for a claim of Force Majeure by TCM. Any lack of funds shall not be deemed to be a cause beyond the control of a party. If TCM shall claim a delay due to Force Majeure, TCM must notify City in writing within five (5) business days of the first occurrence of any claimed event of Force Majeure. Such notice must specify in reasonable detail the cause or basis for claiming Force Majeure and the anticipated delay in TCM’s performance to the extent such anticipated delay is known to TCM at the time such notice to City is required. If TCM fails to provide such notice within said five (5) business day period, then no Force Majeure delay shall be deemed to have occurred. Delays due to events of Force Majeure shall only be recognized to the extent that such event actually delays the performance by such party and cannot otherwise be mitigated using commercially reasonable efforts.
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1.6Response to Comments by the Executive Director. The Executive Director shall use reasonable efforts to respond to the submission of a Definitive Improvement Plan within ten (10) business days following receipt from TCM. TCM shall, within ten (10) business days following receipt from the Executive Director of any requested revisions to or comments regarding deficiencies of the Definitive Improvement Plan, respond to the Executive Director with a revised or supplemental Definitive Improvement Plan which addresses such requested revisions, comments or deficiencies and the failure to do so may subject TCM to the assessment of a Late Performance Fee (as defined in Section 1.11 below). Any requested revisions or comments by the Executive Director will not be unreasonable. The Executive Director shall use reasonable efforts to respond to any resubmission or supplement to a Definitive Improvement Plan within five (5) business days following receipt. If the Executive Director shall fail to respond to any submission or resubmission of a Definitive Improvement Plan within the specific time periods set forth in this Section 1.6, then TCM shall have a day for day extension in which to submit any revised or supplemental Definitive Improvement Plan. The parties also agree to use their respective commercially reasonable efforts to expedite the approval process hereunder with respect to the High Priority Areas in TBIT so that TCM and TCM’s Concessionaires shall have an adequate time to obtain competitive bids, award contracts and perform their respective construction activities in order to meet the opening dates of such High Priority Areas.
1.7Rejection of Definitive Improvement Plan. In the event that TCM is unable or unwilling to revise or supplement a Definitive Improvement Plan for an Area in the manner required by this Agreement, the Executive Director shall have the right to reject such Definitive Improvement Plan for such Area, which rejection shall be in writing. In the event that the Executive Director rejects any Definitive Improvement Plan for any Area, then following a five (5) business day cure period in which TCM shall have the right to revise or supplement the applicable Definitive Improvement Plan and submit the same to the Executive Director, TCM shall have no further right to submit a Definitive Improvement Plan with respect to such Area, such Area shall no longer be subject to the terms of this Agreement, and TCM shall have no right to act as terminal commercial manager with respect to such Area.
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TCM acknowledges and agrees that, in the event that the Executive Director rejects any Definitive Improvement Plan following such five (5) business day cure period for any Area in accordance with this Agreement, City shall have no liability or obligation to TCM whatsoever, and TCM shall have no right to act as terminal commercial manager with respect to such Area.
1.8Approval of Definitive Improvement Plan. The Executive Director shall have the right to reasonably condition the approval of any Definitive Improvement Plan on such further actions, undertakings or requirements to be performed by TCM as the Executive Director may deem necessary or appropriate. Each approval issued by the Executive Director approving a Definitive Improvement Plan (a “DIP Approval”) shall be in writing and shall contain the following:
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Each DIP Approval shall be deemed to be conditioned upon TCM’s compliance with the applicable provisions of this Agreement (including, without limitation, the provisions of Article VII below), regardless of whether such DIP Approval expressly so states. Except as otherwise approved by the Executive Director, all Definitive Improvement Plans shall follow applicable portions of the Design and Construction Handbook located at www.lawa.org/laxdev/ handbook.aspx (such handbook as may be revised from time to time by City is referred to herein as the “Design and Construction Handbook”). Within ten (10) business days following receipt by TCM of any DIP Approval issued by the Executive Director, TCM shall countersign and return a copy of such DIP Approval to City, signifying TCM’s agreement to and acceptance of such DIP Approval (including any Conditions of Approval contained therein). The failure of TCM to so countersign and return a copy of such DIP Approval to City within said ten (10) business day period shall render such DIP Approval revocable by the Executive Director upon written notice to TCM at any time thereafter. At such time as a DIP Approval is issued by the Executive Director and accepted by TCM, the terms of such DIP Approval shall be deemed to become a part of this Agreement to the extent not inconsistent or in conflict with the terms and provisions of this Agreement, which shall be deemed to control.
1.8.1TCM Initial Premises Improvements. The term “TCM Initial Premises Improvements” shall mean the initial improvements that are designated specifically in the DIP Approval to be TCM Initial Premises Improvements made by TCM to the Premises that are constructed at TCM’s cost pursuant to a DIP Approval and are approved by the Executive Director following completion as such, such approval not to be unreasonably, withheld, conditioned or delayed.
1.8.2Concessionaire Initial Premises Improvements. The term “Concessionaire Initial Premises Improvements” shall mean the initial improvements that are made by the Concessionaires to the Premises that are constructed at such Concessionaires’ cost pursuant to a CIP Approval and are approved by the Executive Director following completion as such. The term “Initial Premises Improvements” shall mean the TCM Initial Premises Improvements and the Concessionaire Initial Premises Improvements, collectively.
1.8.3Initial Non-Premises Improvements. The term “Initial Non-Premises Improvements” shall mean the initial improvements that are designated specifically in the DIP Approval to be Initial Non-Premises Improvements made by TCM to areas that are either (i) outside of the Premises, or (ii) within TCM Common Areas or other areas of the Premises as specifically approved by the Executive Director (in his or her sole discretion), that are constructed at TCM’s cost pursuant to a DIP Approval and are approved by the Executive Director following completion as such. Improvements required to create or to demise the Premises shall not be considered Initial Non-Premises Improvements, unless otherwise specifically designated as Initial Non-Premises Improvements in any DIP Approval. Notwithstanding the foregoing, trade fixtures, furniture, and furnishings in TCM Common Areas shall not be included in Initial Non-Premises Improvements, but rather will be a part of the Initial Premises Improvements.
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1.8.4Premises Completion Date. The term “Premises Completion Date” (which shall be adjusted on a day-for-day basis equal to the number of days of delay due to (i) events of Force Majeure or (ii) reasonable delays due to Pre-Existing Hazardous Materials or TCM Contingencies) shall mean the date specified in the DIP Approval as the date that TCM shall have completed (or caused completion of) the construction of all Initial Premises Improvements to the Premises within the Area or Parcel and shall have caused its Concessionaires to commence regular concession operations in the Units within such Premises.
1.8.5Non-Premises Completion Date. The term “Non-Premises Completion Date” (which shall be adjusted on a day-for-day basis equal to the number of days of delay due to (i) events of Force Majeure or (ii) reasonable delays due to Pre-Existing Hazardous Materials or TCM Contingencies) shall mean the date specified in the DIP Approval as the date that TCM shall have completed the construction of all Initial Non-Premises Improvements to areas within the Area or Parcel.
1.8.6Conditions of Approval. The term “Conditions of Approval” shall mean any conditions of approval imposed by City on TCM in connection with the approval by the Executive Director of a Definitive Improvement Plan.
1.8.7Initial Non-Premises Improvements - Board Approval. Notwithstanding any other provisions of this Agreement, TCM acknowledges that the obligation of City to acquire or otherwise pay for any Initial Non-Premises Improvements is subject to the approval of the Board acting in its sole and absolute discretion. TCM shall not be required to proceed with the construction of any Initial Non-Premises Improvements, until such approval of the Board has been obtained. The Executive Director shall use good faith efforts to recommend for approval to the Board on a timely basis in order to allow TCM to proceed with its construction activities so that the Initial Non-Premises Improvements may be completed by TCM on the Non-Premises Completion Date. In the event that TCM elects to proceed with the construction of such Initial Non-Premises Improvements without prior approval of the Board, TCM will be doing so at the risk that the Board may not approve the acquisition or other payment by City for such Initial Non-Premises Improvements.
1.8.8Material Difference in Size or Location of Units. In the event that the size and/or location of the Units as set forth in the DIP Approval is materially different from the size and/or location of the Units as set forth in the Conceptual Plan and such material difference would have a material adverse impact on TCM’s estimated financial proforma set forth in the TCM Proposal, then the Executive Director will use good faith efforts to recommend for approval to the Board an amendment to this Agreement providing for an equitable adjustment to the financial terms of this Agreement as reasonably determined by the Executive Director following consultation with TCM (it being understood, however, that such amendment to the financial terms of this Agreement shall require the approval of the Board acting in the Board’s sole and absolute discretion).
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1.9Time for Approval of Definitive Improvement Plans. TCM acknowledges and agrees that the timely planning and implementation of the proposed development within TBIT Area 1 and TBIT - Area 2 (which Areas are sometimes individually referred to herein as a “High Priority Area” and are sometimes collectively referred to herein as the “High Priority Areas”) are of particular importance and urgency. TCM agrees that TCM shall take all necessary and appropriate actions to ensure that DIP Approvals are obtained for such High Priority Areas within one hundred twenty (120) days immediately following the Effective Date. Provided that City has timely performed its obligations under this Agreement affecting TCM’s performance, TCM agrees that TCM’s failure to take all necessary and appropriate actions to ensure that such DIP Approvals for the High Priority Areas are obtained within one hundred twenty (120) days immediately following the Effective Date shall constitute a Default by TCM under this Agreement. TCM further acknowledges and agrees that, provided that City has timely performed its obligations under this Agreement affecting TCM’s performance, in the event that TCM fails to obtain DIP Approvals for either TBIT - Area 3, TBIT - Area 4, Terminal 2 – Area 5, Terminal 2 – Area 6, or Theme Building – Area 7 within the twenty-four (24) month period immediately following the Effective Date, then TCM shall have no further right to submit a Definitive Improvement Plan with respect to such Area, and such Area shall no longer be subject to the terms of this Agreement (and TCM shall have no right to act as terminal commercial manager with respect to such Area). The Executive Director may, in the Executive Director’s sole discretion, extend such time for the approval of any Definitive Improvement Plan.
1.10Delivery; Notice of Delivery. The term “Delivery Notice” shall mean the written notice from the Executive Director to TCM informing TCM of the date that City will, pursuant to the DIP Approval, deliver to TCM either (i) the Premises (or portion thereof) within the Area (or Parcel) for purposes of the commencement of the Primary Term (as defined in Section 2.2) as to such Premises, (ii) the non-Premises area within the Area (or Parcel) in which TCM will have a temporary license to construct the Initial Non-Premises Improvements, or (iii) both. The date set forth in the Delivery Notice for the delivery of such Premises and/or non-Premises area, as applicable, is referred to herein as the “Delivery Date”. Provided that TCM uses commercially reasonable efforts to comply with its obligations to timely obtain permits, the Delivery Dates will be no earlier than ten (10) business days after TCM’s receipt of those permits needed by TCM and its Concessionaires to initially commence construction of the Initial Premises Improvements within such Premises or the Initial Non-Premises Improvements within such non-Premises area (as applicable), unless otherwise approved in a DIP Approval and consented to by TCM. Subject to TCM’s compliance with all provisions of the DIP Approval to be complied with prior to the time of delivery, City will deliver such Premises and/or non-Premises area, as applicable, on the Delivery Date set forth in the Delivery Notice, provided, however, the Executive Director shall have the right for good cause to extend the Delivery Date if circumstances warrant in the Executive Director’s sole judgment. TCM agrees to accept delivery of such Premises and/or non-Premises area on the Delivery Date. Within ten (10) business days following the Executive Director’s request, TCM shall execute a Commencement Date Memorandum in the form of Exhibit “C” attached hereto acknowledging the calendar date of the commencement of the Primary Term as to any portion of the Premises delivered to TCM by City pursuant to this Agreement, together with such other reasonable information contained in the Commencement Date Memorandum as the Executive Director may request. TCM’s failure to execute a Commencement Date Memorandum shall not affect the commencement date of the Primary Term for such Premises nor the performance of TCM’s obligations with respect thereto.
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1.10.1TCM’s Acknowledgment. With respect to any and all Areas and Premises under this Agreement, TCM hereby acknowledges and agrees that: (a) TCM has been advised to satisfy itself with respect to the condition thereof (including but not limited to physical and environmental condition, the improvements, equipment, and utilities, security, compliance with Laws and Private Restrictions (as defined in Section 5.11.1 below), and the present and future suitability thereof for TCM’s or its Concessionaires’ intended use; (b) TCM shall have independently made such investigation as it deems necessary with reference to such matters; (c) except as specifically set forth in this Agreement (including, without limitation, Section 7.3 and Article 15) or in the applicable DIP Approval, neither City, nor any of City’s agents and representatives, has made any oral or written representations or warranties of any kind whatsoever, express or implied, as to any matters concerning the Facilities, the Areas, or the Premises, including, without limitation, the condition of the Premises and the present and future suitability for TCM’s or its Concessionaires’ intended use; (d) except as otherwise expressly set forth in this Agreement (including, without limitation, Section 7.3 and Article 15) or in the applicable DIP Approval, TCM will take delivery of the Premises from City on an “as is” basis with all defects, whether patent or latent; and (e) except as otherwise expressly set forth in this Agreement (including, without limitation, Section 7.3 and Article 15) or in the applicable DIP Approval, any modifications, improvements, additions, or repairs to the Premises and any equipment or systems that are either required to be made in order to make the Premises suitable for TCM’s or its Concessionaires’ intended use or required by Laws to be made to the Premises in connection with TCM’s or its Concessionaires’ use of the Premises shall be constructed or installed by TCM (or its Concessionaires), at TCM’s (or its Concessionaires’, as the case may be) sole cost and expense, and in compliance with Article VII of this Agreement and the applicable DIP Approval. Any report, study, document or other information furnished to TCM by City or by City’s representatives, including, without limitation, the historical sales data regarding concession operations at the Airport, passenger data, any assessment reports regarding the physical condition of space within the Facilities, and other information provided in connection with the RFP (collectively, the “City Information”), is being furnished without representation or warranty by City or its representatives and with the understanding that TCM will not rely on the City Information, but rather TCM will independently verify the accuracy of the statements or other information contained in the City Information. It is the parties’ express understanding and agreement that all such City Information is provided only for TCM’s convenience in facilitating TCM’s own independent investigation and evaluation, and, in doing so, TCM shall rely exclusively on its own independent investigation and evaluation of each and every aspect of the subject matter of this Agreement (including, without limitation, all historical data and the condition of the Areas in which the Premises may be located and their operations) and not on any information or materials supplied by City, except as may be otherwise expressly provided in this Agreement.
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1.12Construction of Initial Non-Premises Improvements. TCM shall, at TCM’s cost and expense, design and construct the Initial Non-Premises Improvements described in the applicable DIP Approval, which Initial Non-Premises Improvements shall be subject to acquisition by City as provided in Section 1.13 below. TCM acknowledges that, regardless of whether or not proposed by TCM in a Definitive Improvement Plan, the Executive Director may require TCM to make certain Initial Non-Premises Improvements as a condition of the DIP Approval; [**] The construction of the Initial Non-Premises Improvements shall commence within ten (10) business days following the Delivery Date for such non-Premises area or TCM Common Area or other area within the Premises, as the case may be. Subject to delays caused by events of Force Majeure or the failure of City to have timely performed its obligations under this Agreement affecting TCM’s performance, TCM shall complete the construction of the Initial Non-Premises Improvements on or before the applicable Non-Premises Completion Date. The Executive Director shall have the right (but not the obligation) to extend the Non-Premises Completion Date, which right may be exercised by the Executive Director in his or her sole discretion. During the period prescribed in the applicable DIP Approval, TCM shall have a temporary non-exclusive right of entry to the non-Premises area described in the applicable DIP Approval for the following purposes and no other: to assess such non-Premises area for design and engineering purposes, to facilitate preparation of construction plans, and upon receipt of all necessary and appropriate approvals, to construct the Initial Non-Premises Improvements. TCM acknowledges that such right of entry is a temporary non-exclusive license and does not grant to TCM any property interest in such non-Premises area. In connection with the design and construction of the Initial Non-Premises Improvements and related entry, TCM shall comply with the provisions of Sections 1.12.1 through 1.12.4 below, and TCM’s compliance with said provisions below shall be in addition to (and not in lieu of) TCM’s compliance with all of the other applicable provisions of this Agreement (including, without limitation, Sections 1.10.1, 5.11, 5.12, 7.2, 7.3, 7.7, 7.8, 7.11, 7.12, 7.14, 7.15, 13.2, and 13.3, Article XV, and Article XVI).
1.12.1Competitive Bidding/Proposals. TCM recognizes and accepts that the contractor selection procedures specified in this Section 1.12.1 are intended to promote pricing and responsive and responsible proposals in a fair and reasonable manner. As such, the selection of contractors for the construction of the Initial Non-Premises Improvements shall be based upon competitive bids or proposals as follows:
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Notwithstanding the foregoing, City and TCM hereby agree that TCM shall not be required to comply with Section 1.12.1 above with respect to the selection of design contractors for the design of the TCM Initial Premises Improvements and the Initial Non-Premises Improvements located within each High Priority Area, nor shall TCM’s Concessionaires be required to comply with Section 1.12.1 above with respect to the selection of design contractors for the design of the Concessionaire Initial Premises Improvements located within each High Priority Area, as time is of the essence in each such High Priority Area.
1.12.2Warranty. TCM warrants that the design and construction work and services provided in connection with the work shall conform to the highest professional standards pertinent to the respective trade or industry. TCM warrants that all materials and equipment furnished pursuant to this Section 1.12 will be new and of good quality unless otherwise specified, and that all workmanship will be of good quality, free from faults and defects and in conformance with the design documents approved by the City of Los Angeles Department of Building and Safety.
1.12.3Rules and Regulations.
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(c)TCM and its contractors shall be responsible for all civil penalties assessed as a result of failure to comply with any and all present and future rules, regulations, restrictions, ordinances, statutes, laws and/or orders of any federal, state, and/or local government regarding the work. TCM and its contractors shall hold City harmless and indemnify City for all civil penalties.
1.12.4Independent Contractor. In furnishing the services provided in this Section 1.12, TCM is acting as an independent contractor. TCM is to furnish such services in its own manner and method and is in no respect to be considered an officer, employee, servant or agent of City.
1.13Acquisition of Initial Non-Premises Improvements. Provided that the requisite Board approval has been obtained, upon the completion and acceptance of the Initial Non-Premises Improvements, City shall acquire the Initial Non-Premises Improvements as set forth below in this Section 1.13, and such Initial Non-Premises Improvements shall become the exclusive property of City. As full consideration for the acquisition of the Initial Non-Premises Improvements, City shall pay to TCM an amount equal to the Initial Non-Premises Improvements Acquisition Cost (as defined in Section 1.13.1 below), which amount shall be payable by City, at City’s sole option (as determined by the Executive Director) by means of the one of the following two methods of payment, within sixty (60) days following the Payment Request Completion Date (as defined below): (a) A cash payment to TCM; or (b) the issuance of a rent credit (the “Initial Non-Premises Rent Credit”) to TCM, which rent credit shall be applied against TCM’s obligation to pay the Base Rent for the Premises. Notwithstanding City’s option to select between the two manners of payment as set forth in clauses (a) and (b) of the foregoing sentence, in the event that the Initial Non-Premises Improvements Acquisition Cost for an Area exceeds the following dollar threshold amount for such Area, then such excess shall be paid by City in the manner described in clause (a) of the foregoing sentence (i.e., by cash payment) if so requested by TCM and not by an Initial Non-Premises Rent Credit as described in clause (b) of the foregoing sentence: [**] the event of a Termination for Convenience under this Agreement as the result of a Convenience Termination Notice, City shall pay the pro-rata share of the unamortized outstanding principal balance of the Initial Non-Premises Rent Credit attributable to the Terminated Premises to TCM within thirty (30) days following the Convenience Termination Date (as such terms are defined in Section 9.1).
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1.13.1[**]
1.13.2Payment Request Completion Date. The term “Payment Request Completion Date” shall mean the date that the following has occurred: (a) TCM has completed the construction of the Initial Non-Premises Improvements in compliance with the terms of this Agreement and the applicable DIP Approval, and (b) TCM has requested payment and provided to City appropriate evidence and documentation of all costs incurred (including, but not limited to, copies of invoices) and proof of payment (including, but not limited to, lien releases) of such actual costs incurred by TCM for the design and construction of the Initial Non-Premises Improvements.
1.13.3Disputed Amounts. The Executive Director shall have the right to review, approve (which approval shall not be unreasonably withheld, conditioned or delayed), and/or dispute the amount of the Initial Non-Premises Improvements Acquisition Cost. To the extent that the Executive Director disputes a portion of the Initial Non-Premises Improvements Acquisition Cost, or there is insufficient documentation with respect thereto, City shall so notify TCM within ten (10) days following the Payment Request Completion Date and shall have the right to withhold any disputed amounts until such amounts have been verified and documented to the reasonable satisfaction of the Executive Director. The Executive Director shall also submit to TCM an explanation of the disputed amount or the required documentation (a “Dispute Notice”). TCM shall respond to the Executive Director within thirty (30) days following the Dispute Notice, and the Executive Director and TCM shall meet to resolve any disputes or documentation issues within twenty (20) days of TCM’s response. City is under no obligation to dispute the Initial Non-Premises Improvements Acquisition Cost prior to payment, and the payment of the Initial Non-Premises Improvements Acquisition Cost shall not bind City to the correctness of the Initial Non-Premises Improvements Acquisition Cost.
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1.13.4Audit Rights. City may, in the Executive Director’s sole discretion and with reasonable notice to TCM, require TCM to provide access to all records and other information necessary to perform an audit of all or any of the Initial Non-Premises Improvements Acquisition Cost (collectively, the “Auditable Costs”). The expense of any such examination or audit shall be borne by City, provided that if the TCM’s books and records are not made available to City at the Airport or at TCM’s principal place of business within a fifteen (15) mile radius of the Airport, TCM shall reimburse City for the reasonable out-of-pocket costs incurred by City in inspecting TCM’s books and records, including travel, lodging and subsistence costs. City shall have the right to commence such audit at any time up to three (3) years after submission of the last part of any Auditable Costs by TCM to City. City’s right to access such records and information shall continue until any audit so commenced is concluded to the Executive Director’s reasonable satisfaction. TCM shall retain all records and other information necessary to perform such an audit until so concluded. To the extent that the results of any such audit disclose charges inaccurately or improperly allocated to Auditable Costs and such discrepancies amount to greater than five percent (5%) of such Auditable Costs as reported by TCM, then TCM shall, within thirty (30) days of demand, reimburse City the amount of such excess charges, plus an administrative fee of seven and one half percent (7.5%) of such amount (but such administrative fee shall not exceed Five Thousand Dollars ($5,000.00) as a result of any such inaccurate or improper allocations of the Auditable Costs in connection with such audit), plus an amount equal to any actual third party audit costs incurred by City. If such discrepancies are less than five percent (5%) of such Auditable Costs as reported by TCM, then TCM shall, within thirty (30) days of demand, only reimburse City the amount of such excess charges. Where City has withheld a portion of the payment as being under dispute, to the extent that the results of any such audit disclose an underpayment to TCM, then City shall pay TCM the amount of such underpayment within sixty (60) days.
IIPREMISES; PRIMARY TERM; EARLY TERMINATION.
2.1Premises; Units; TCM Common Areas; TCM Storage Premises. The premises which are the subject of this Agreement are those premises (the “Premises”) that are delineated and approved by the Executive Director in a DIP Approval for an Area and delivered by City to TCM pursuant to a Delivery Notice issued by the Executive Director as provided in Article I above. No potential Premises location shall be considered a part of the Premises, unless and until such potential Premises location is delineated and approved by the Executive Director in a DIP Approval for an Area and turned over to TCM pursuant to a Delivery Notice issued by the Executive Director as provided in Article I above. The Premises will consist of Units, TCM Common Areas, and TCM Storage Premises (all as defined below). For purposes of this Agreement, the term “Unit(s)” means the individual concession spaces within the Premises as delineated in the DIP Approvals. For purposes of this Agreement, the term “TCM Common Area(s)” means areas located within the Premises as delineated in the DIP Approvals as common use areas for the general use and convenience of airline passengers and other users of the Facility in which the TCM Common Areas are located, such as food court seating areas and children’s play areas. For purposes of this Agreement, the term “TCM Storage Premises” means areas located within the Premises as delineated in the DIP Approvals as premises for the storage of equipment, inventory or supplies or for office space (if any). For avoidance of doubt, the parties acknowledge that areas within Units used for storage or office use are not TCM Storage Premises, but rather are considered a part of such Units.
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2.1.1Correction to Description of Premises. In the event that the City determines that any description or measurement of any portion(s) of the Premises stated in this Agreement or in any DIP Approval is inaccurate (e.g., following review of as-built construction and based on actual field measurements), the Executive Director is authorized to correct such inaccuracy and to approve corresponding adjustments in the terms and provisions of this Agreement based on such corrected descriptions or measurements. Any such adjustment(s) made to the terms and provisions of this Agreement may, with the approval of the Executive Director, be deemed retroactive to such date(s) on which the Executive Director deems approval of such correct measurement(s) to the Premises to be appropriate.
2.2Primary Term. For purposes of this Agreement, the term “Primary Term” shall mean the period of time that TCM shall operate the Premises as the terminal commercial manager hereunder, which period shall commence for any given portion of the Premises on the Delivery Date for such portion of the Premises and shall end as to all portions of the Premises on the Expiration Date (unless the term of this Agreement is sooner terminated in accordance with the provisions of this Agreement). For purposes of this Agreement, the term “Expiration Date” shall mean January 31, 2029. No delay in the processing of any Definitive Improvement Plan or delay in the Delivery Date of any portion of the Premises shall extend the Expiration Date, except as expressly provided in Section 2.2.1 below. TCM acknowledges and agrees that TCM has absolutely no rights under this Agreement to extend the Primary Term, except as expressly provided in Section 2.2.1 below.
2.2.1Extension of Expiration Date. The Expiration Date shall be extended for a period of time equal to the sum of the Delivery Date Delay Days (as defined in Section 2.2.1.1 below), if any, plus the Opening Date Delay Days (as defined in Section 2.2.1.2 below), if any; provided, however, that in no event shall be the Expiration Date be extended beyond October 31, 2029. Such calculation of the Delivery Date Delay Days and Opening Date Delay Days shall be reasonably determined by the Executive Director (which determination shall be binding on TCM) and shall be set forth in a written memorandum in a form reasonably prescribed by the Executive Director and signed by City and TCM. TCM shall execute such memorandum within ten (10) business days following the Executive Director’s request.
2.2.1.1Delivery Date Delay Days. For purposes of this Agreement, the term “Delivery Date Delay Days” shall mean the greater of (a) the Food and Beverage Unit Delay Days (as defined below) or (b) the Retail Unit Delay Days (as defined below); provided, however, that neither the Food and Beverage Unit Delay Days nor the Retail Unit Delay Days shall be considered Delivery Date Delay Days unless TCM has completed (or caused the completion of) all Units within the High Priority Areas by the Anticipated Opening Date (as defined in Section 2.2.1.3 below), and all such Units are ready to commence normal concession operations by the Anticipated Opening Date. For purposes of this Agreement, the term “Food and Beverage Unit Delay Days” shall mean the number of days that have elapsed (if any) following the Anticipated Delivery Date (as defined in Section 2.2.1.4 below) for the food and beverage Units within the High Priority Areas and the actual Delivery Date for the food and beverage Units within the High Priority Areas; provided that such delay is due to the action or inaction of City and not caused by TCM’s failure to timely perform its obligations under this Agreement; and provided, further, that no Food and Beverage Unit Delay Days shall accrue in the event that the actual Delivery Date is not less than eight (8) months prior to the Anticipated Opening Date. In the event of multiple Anticipated Delivery Dates and/or multiple actual Delivery Dates with respect to the food and beverage Units in the High Priority Areas, the Food and Beverage Unit Delay Days shall be based on the longest single period of delay with respect to any such Unit; it being understood that such periods of delay shall be deemed to run concurrently and shall not be considered to run cumulatively. For purposes of this Agreement, the term “Retail Unit Delay Days” shall mean the number of days that have elapsed (if any) following the Anticipated Delivery Date for the retail Units within the High Priority Areas and the actual Delivery Date for the retail Units within the High Priority Areas; provided that such delay is due to the action or inaction of City and not caused by TCM’s failure to timely perform its obligations under this Agreement; and provided, further, that no Retail Unit Delay Days shall accrue in the event that the actual Delivery Date is not less than six (6) months prior to the Anticipated Opening Date. In the event of multiple Anticipated Delivery Dates and/or multiple actual Delivery Dates with respect to the retail Units in the High Priority Areas, the Retail Unit Delay Days shall be based on the longest single period of delay with respect to any such Unit; it being understood that such periods of delay shall be deemed to run concurrently and shall not be considered to run cumulatively.
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2.2.1.2Opening Date Delay Days. For purposes of this Agreement, the term “Opening Date Delay Days” shall mean the number of days that have elapsed (if any) following the Anticipated Opening Date, and the actual date that the High Priority Areas open for passenger travel where such delay is due to the action or inaction of City and not caused by TCM’s failure to timely perform its obligations under this Agreement; provided, however, that in order for such delay to be considered Opening Date Delay Days, TCM shall have completed (or caused the completion of) all Units within the High Priority Areas by the Anticipated Opening Date, and all such Units shall have been ready to commence normal concession operations by the Anticipated Opening Date. In the event of multiple Anticipated Opening Dates or multiple dates on which the High Priority Areas actually open for passenger travel, the Opening Date Delay Days shall be based on the longest single period of delay; it being understood that such periods of delay shall be deemed to run concurrently and shall not be considered to run cumulatively.
2.2.1.3Anticipated Opening Date. For purposes of this Section 2.2.1, the term “Anticipated Opening Date” shall mean the anticipated date or dates as set forth in the DIP Approvals for the High Priority Areas on which the High Priority Areas will be open for concession operations and passenger travel.
2.2.1.4Anticipated Delivery Date. For purposes of this Section 2.2.1, the term “Anticipated Delivery Date” shall mean the anticipated date or dates set forth in the DIP Approvals for the High Priority Areas on which the Premises (including the Units) will be delivered to TCM pursuant to a Delivery Notice, which Anticipated Delivery Date for the food and beverage Units shall be not less than eight (8) months prior to the Anticipated Opening Date and which Anticipated Delivery Date for the retail Units shall be not less than six (6) months prior to the Anticipated Opening Date.
2.3Early Termination for Failure to Meet Performance Metrics. In addition to any other termination right of City granted under this Agreement, City shall have the right, exercisable by the Executive Director upon written notice to TCM (the “Early Termination Notice”), to terminate this Agreement (the “Early Termination”) effective on the Early Termination Expiration Date in the event that the Executive Director determines that TCM has failed to achieve any of the Performance Metrics (as defined in Section 2.3.2 below) for any two (2) consecutive Years (as defined in Section 4.1.1 below) during the Performance Metrics Measurement Period (as defined in Section 2.3.3 below); provided that the Executive Director shall deliver the Early Termination Notice to TCM on or before January 31, 2022. In the event that City exercises its Early Termination right, City shall pay to TCM an amount equal to the Early Termination Payment (as defined in Section 9.2.3 below) within thirty (30) days following the Early Termination Compliance Date (as defined in Section 9.2.4 below). All Unit Concession Agreements shall provide that they are subject to either termination or assignment, at the sole option of City as exercised by the Executive Director, upon the Early Termination of this Agreement. City agrees that City will either exercise such right to terminate Unit Concession Agreements as to all of the Units located within the Premises or will elect to take an assignment of all of the Units located within the Premises. In the event that City elects to take an assignment of the Unit Concession Agreements upon the Early Termination of this Agreement, City and TCM will enter into an assignment and assumption agreement, in form and content reasonably satisfactory to the Executive Director, reflecting that TCM shall indemnify and hold harmless the City for any obligations of the TCM accruing prior to the Early Termination Expiration Date and City shall assume responsibility for the obligations of TCM under the Unit Concession Agreements accruing from and after the Early Termination Expiration Date. Title to and ownership of all TCM Initial Premises Improvements and Concessionaire Initial Premises Improvements shall vest in City on the Early Termination Expiration Date, except for those Concessionaire Initial Premises Improvements, if any, that pertain to Unit Concession Agreements that City does not elect to terminate in connection with such Early Termination.
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2.3.1Early Termination Expiration Date. For purposes of this Agreement, the “Early Termination Expiration Date” shall mean January 31, 2024.
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2.4Surrender. TCM agrees that at 11:59 p.m. on the Expiration Date, or on the sooner termination of this Agreement, TCM shall surrender the Premises (including all improvements) to City (a) in good order, condition and repair (normal wear and tear excepted but with all interior walls repaired, any carpets cleaned, and all floors cleaned and waxed and subject to the provisions of Article XII below), and (b) free of any Hazardous Materials that are the responsibility of TCM under the terms of this Agreement. Normal wear and tear shall not include any damage or deterioration that would have been prevented by proper maintenance by TCM (or its Concessionaires) or TCM otherwise performing all of its obligations under this Agreement. On or before the expiration or sooner termination of this Agreement, TCM shall, at the option of City, remove all of TCM’s personal property, all Telecommunications Facilities (as defined in Section 7.13.1) installed in the Premises or elsewhere in the Airport by or on behalf of the TCM (provided the Executive Director may require that such removal shall be performed by a contractor or telecom provider designated by the Executive Director), and TCM’s signage from the Premises, and TCM shall repair any damage caused by such removal. Any of TCM’s personal property not so removed by TCM as required herein shall be deemed abandoned and may be stored, removed, and disposed of by City at TCM’s expense, and TCM waives all Claims against City for any damages resulting from City’s retention and disposition of such property; provided, however, that TCM shall remain liable to City for all costs incurred in storing and disposing of such abandoned property of TCM. All improvements and Alterations shall remain in the Premises as the property of City. On the Expiration Date or earlier termination of this Agreement, all rights and obligations of TCM under this Agreement shall terminate. Notwithstanding anything in the foregoing sentence or elsewhere in this Agreement to the contrary, no expiration or earlier termination of this Agreement shall release TCM from any liability or obligation hereunder, whether of indemnity or otherwise, that either (1) arises or accrues prior to such expiration or earlier termination, (2) results from any acts, omissions, or events occurring prior to TCM surrendering the Premises to City, or (3) expressly survives the expiration or earlier termination of this Agreement.
IIITERMINAL COMMERCIAL MANAGER RIGHTS AND DUTIES.
3.1Terminal Commercial Manager. During the Primary Term, TCM shall act as terminal commercial manager of the concession operations within the Premises. As the terminal commercial manager, TCM shall be responsible for ensuring the successful delivery and management of all concession operations within the Premises in a manner consistent with comparable world-class international airports. As the terminal commercial manager, TCM shall select and enter into concession agreements (individually, a “Unit Concession Agreement” and collectively the “Unit Concession Agreements”) with concessionaires (individually, a “Concessionaire” and collectively the “Concessionaires”) for each Unit within the Premises in accordance with the provisions of this Agreement.
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3.2Business and Operations Plan. TCM shall prepare a detailed plan for the management of the concession operations within the Premises (the “Business and Operations Plan”), which Business and Operations Plan shall at all times be subject to the approval of the Executive Director as set forth in this Section 3.2, such approval not to be unreasonably withheld, conditioned or delayed. The initial version of the Business and Operations Plan shall be in a form prepared by TCM and approved by the Executive Director, prior to the Effective Date of this Agreement. Thereafter, the Business and Operations Plan shall be updated by TCM and submitted to the Executive Director, on an annual basis, no later than March 31st of each year continuing through the end of the Primary Term. The updated Business and Operations Plan shall be subject to the approval of the Executive Director each year (which the Executive Director shall provide within thirty (30) days following submission), and any changes to the Business and Operations Plan as so approved by the Executive Director that occur during the year shall be subject to the further approval of the Executive Director in a similar manner. Until such approval is obtained, TCM shall continue to operate under the most recent approved Business and Operations Plan. TCM shall manage the concession operations within the Premises substantially in accordance with the Business and Operations Plan as approved by the Executive Director. Notwithstanding anything contained in the Business and Operations Plan, in the event of a conflict between the provisions of this Agreement and the provisions of the Business and Operations Plan, the provisions of this Agreement shall control. The contents of the Business and Operations Plan shall include, but not be limited to, the following:
(a)The plan for reasonably maximizing payments and value to City.
(b)Establishment of operational goals and objectives for the forthcoming year of the plan, including identification of sales opportunities and marketing plans for the promotion of sales.
(c)Review of prior year’s performance, including achievement of sales projections and sales trends with explanations of any anomalies by Unit.
(d)The plan for the marketing of concession opportunities and for the selection of Concessionaires to ensure an open selection process that provides opportunities for ACDBEs.
(e)The plan for the promotion of Concessionaires and their products or services.
(f)The operating standards for Concessionaires and the policies and procedures to address, correct or replace underperforming Concessionaires and to manage Concessionaire compliance with operating standards.
(g)Customer service and quality assurance plan, and remedial action plan for any prior deficiencies.
(h)The maintenance plan for the Premises.
(i)The policies and procedures for the management, monitoring and reporting of Concessionaire compliance with the adopted pricing policy.
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(j)Such other goals, objectives, requirements or information as the Executive Director may reasonably request.
3.3Unit Concession Agreements.
3.3.1Approval of Unit Concession Agreements. Each and every Unit Concession Agreement with a Concessionaire shall be subject to the prior written approval of the Executive Director (such approval not to be unreasonably withheld, conditioned or delayed provided that such changes do not impair City’s rights under this Agreement), prior to its execution by TCM. Promptly following the Effective Date, TCM shall develop the form of Unit Concession Agreement and submit such form of Unit Concession Agreement to the Executive Director for review and approval. Any changes to the form of Unit Concession Agreement shall also be subject to the Executive Director’s review and approval, and the Executive Director may require reasonable changes to the form of Unit Concession Agreement from time to time during the term of this Agreement. The specific Permitted Use (as defined in Section 3.4 below) for each Unit within the Premises is subject to the written approval of the Executive Director, such approval not to be unreasonably withheld, conditioned or delayed. The process for obtaining such approvals is to be set forth in the Business and Operations Plan. No Unit Concession Agreement shall be amended, extended or terminated, without the prior written approval of the Executive Director, such approval not to be unreasonably withheld, conditioned or delayed. In connection with any requested approval of any Concessionaire or Unit Concession Agreement, TCM shall provide (or cause to be provided) any and all information as the Executive Director may reasonably request regarding the proposed Concessionaire and Unit Concession Agreement (including, without limitation, financial statements, financial pro forma for operations, measureable performance standards, and proposed offerings, menus and pricing).
3.3.2Additional Terms and Conditions Applicable to Unit Concession Agreements. The following terms and conditions shall apply to any Unit Concession Agreement entered into by TCM and any Concessionaire and shall be deemed included in all Unit Concession Agreements whether or not expressly incorporated therein:
(a)No Unit Concession Agreement shall have a term for a period of time longer than ten (10) years, except as may otherwise be approved by the Executive Director; provided, however, no Unit Concession Agreement shall have a term that extends beyond the Expiration Date. All Unit Concession Agreements shall be subject and subordinate to the rights of City under this Agreement. All Unit Concession Agreements shall provide that they are subject to either termination or assignment, at the sole option of City as exercised by the Executive Director, upon the expiration or earlier termination of the Primary Term with respect to the Premises in which such Unit is located. In the event that City elects to have a Unit Concession Agreement assigned to City, such Unit Concession Agreement shall be deemed assigned by TCM to City; provided, however, City shall not be liable for any prepaid rents or security deposit paid by such Concessionaire to TCM or for any prior defaults of TCM under such Unit Concession Agreement. In the event of the expiration or earlier termination of this Agreement prior to the expiration of any Unit Concession Agreement, City, at its option and without any obligation to do so, may require any Concessionaire to attorn to City, in which event City shall undertake the obligations of TCM under such Unit Concession Agreement from the time of the exercise of said option to the expiration of such Unit Concession Agreement; provided, however, City shall not be liable for any prepaid rents or security deposit paid by such Concessionaire to TCM or for any prior defaults of TCM under such Unit Concession Agreement. TCM and such Concessionaire shall upon request by the Executive Director execute all assignment and attornment documentation as may be requested by the Executive Director.
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(b)No Concessionaire shall assign or otherwise transfer all or any of its interest under a Unit Concession Agreement, without the Executive Director’s prior written consent.
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3.3.4Construction Completion and Oversight. TCM shall be responsible for designing and managing TCM’s construction activities and shall also be responsible for managing TCM’s Concessionaires’ design and construction activities and the timely completion thereof in accordance with the provisions of this Agreement, the applicable DIP Approval, the applicable CIP Approval, and the Business and Operations Plan. TCM shall be responsible to ensure that all Concessionaires are open for business in the time and manner set forth in the applicable DIP Approval. TCM shall be responsible for the coordination of all such design and construction activities with City and other Airport users.
3.3.5Temporary Concession Space During Construction. In order to ensure continuity of services to the traveling public during TCM’s initial development and construction activities as well as any other periods of redevelopment and construction during the term of this Agreement, the Executive Director may (but shall have no obligation to) authorize the use by one or more of TCM’s Concessionaires, on an interim basis, temporary concession space within a Facility, pursuant to a written Right of Entry Agreement between TCM (or its Concessionaire) and City. Any such Right of Entry Agreement shall be subject to the approval of the Executive Director (in his or her sole discretion).
3.3.6Interim Unit Concession Agreements. In order to ensure continuity of services to the traveling public during any periods in which TCM or its Concessionaires is involved in development and construction of Units, the Executive Director may (but shall have no obligation to) permit TCM to enter into temporary or interim Unit Concession Agreements with any existing or incumbent concessionaires (i.e., concessionaires engaged in concession operations within the Facilities prior to the commencement of TCM’s activities within such Facilities) or other temporary concessionaires, without requiring TCM to comply with the Concessionaire selection process described in this Agreement and the Business and Operations Plan. No such temporary or interim Unit Concession Agreement shall be for a term of more than two (2) years, unless otherwise approved in writing by the Executive Director, such approval not to be unreasonably withheld, conditioned or delayed.
3.3.7Vacancies. Upon the expiration or other termination of a Unit Concession Agreement, TCM shall promptly solicit a new Concessionaire in accordance with the provisions of this Agreement. Unless extended in writing by the Executive Director (such extension not to be unreasonably withheld), TCM shall propose a new Concessionaire within sixty (60) days and shall thereafter use commercially reasonable efforts to enter into a new Unit Concession Agreement for any vacant Unit within ninety (90) days following the date that City has approved the proposed new Concessionaire. TCM shall, subject to Force Majeure, use its best efforts to cause such Unit to re-open for business within one hundred twenty (120) days following the date that all requisite permits for the work necessary to reopen any such Unit have been issued. During such time as TCM is seeking a permanent replacement Concessionaire, negotiating and documenting the new Unit Concession Agreement, and managing the Concessionaire design and construction process, TCM shall use commercially reasonable efforts to fill any such vacant Unit with a temporary operation (under a modified Unit Concession Agreement structured as a temporary revocable license for a period not to exceed eighteen (18) months). TCM shall notify City in the event that any Unit has remained vacant for more than sixty (60) days. Unless extended in writing by the Executive Director (such extension not to be unreasonably withheld), or if TCM can demonstrate to the reasonable satisfaction of the Executive Director that enplanements or airline service in the vicinity where the vacant Unit is located has been materially impacted to the extent that the vacant Unit is not marketable to potential Concessionaires, in the event that TCM fails to propose a new Concessionaire, fails to enter into a new Unit Concession Agreement or fails to cause the Unit to re-open for business within the respective time periods set forth above, the Executive Director shall have the right to elect on behalf of City to recapture such Unit upon written notice to TCM. In the event of such recapture, such Unit shall no longer be a part of the Premises, TCM shall fulfill its surrender and removal obligation under Section 2.4 above with respect to such Unit, and City shall be free to contract with others for the use of such concession space or otherwise use such concession space as the Executive Director deems appropriate. City shall have no obligation to compensate TCM for the recapture of such Unit (it being understood that the Convenience Termination Payment contemplated in Section 9.2 below shall not be required). However, concurrently with such recapture, the MAG shall be adjusted equitably.
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(a)Unanticipated Vacancies. In order to ensure continuity of services to the traveling public, in the event that an unanticipated vacancy occurs in any Unit (including any vacancy described in this Section 3.3.7), the Executive Director shall have the authority (but shall have no obligation) to permit TCM to select a replacement Concessionaire pursuant to an alternative expedited process approved by the Executive Director, in lieu of requiring TCM to comply with the Concessionaire selection process described elsewhere in this Agreement and the Business and Operations Plan. Such alternative expedited process shall not be unreasonably withheld, conditioned or delayed.
3.4Permitted Uses. The types of permitted uses that TCM may place within the Units located in the Premises (individually, a “Permitted Use”, and collectively, the “Permitted Uses”) include: Food and beverage, convenience retail, specialty retail, business services, common use lounge/club room for use by certain airline passengers and others for a fee (including food/beverage, retail and other business services), personal services, vending machines in locations approved by the Executive Director, non-exclusive Wi-Fi, pay telephones, internet access devices, and such other concession and passenger services as may be approved by the Executive Director from time to time, including any airport-wide classifications. The Permitted Uses for each Unit shall be specific to that Unit, and the Concessionaire for such Unit shall not, without the prior written consent of Executive Director (granted, denied or conditioned in Executive Director’s sole discretion) use that Unit for the Permitted Uses authorized for any other Unit. Except as expressly set forth in Section 5.6 or as directed by Executive Director in writing, the Permitted Uses do not permit either TCM or any Concessionaire to have access to the airfield areas of the Airport. Neither TCM nor any Concessionaire shall engage in any activity within the Airport outside of the Premises for the recruitment or solicitation of business without the prior written consent of Executive Director (granted, denied or conditioned in Executive Director’s sole discretion). Without limiting the generality of this Section, Concessionaires shall not operate any Unit under any name or brand, other than a name or brand specifically permitted or required in the Unit Concession Agreement, or as otherwise approved in advance in writing by Executive Director. TCM acknowledges that the provision of Wi-Fi by TCM is non-exclusive, and City may have one or more Wi-Fi providers within the Facilities which may be accessible to users within the Premises.
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3.4.1Additional Products or Services. Regardless of whether a particular type of product or service is included within the definition of Permitted Uses above or is contemplated in the Business and Operations Plan, the Executive Director may propose to TCM to include a particular type of product or service to the concession operations conducted within the Premises in order to enhance passenger experience at the Facility (an “Additional Product or Service”). If so proposed by the Executive Director, TCM will use commercially reasonable efforts to incorporate such Additional Product or Service into the concession operations within the Premises.
3.5Airport-wide Concessions. Notwithstanding the foregoing Permitted Uses, TCM acknowledges that City currently has entered into, and in the future may enter into, concession agreements with certain parties (individually, an “Airport-wide Concessionaire” and collectively, the “Airport-wide Concessionaires”) to operate certain concession sales or services on an Airport-wide basis (herein, “Airport-wide Concessions”). As of the Effective Date, Airport-wide Concessions include the following concession uses and activities (collectively, “Airport-wide Concession Uses”): (a) duty free and duty paid sales (duty paid sales will be located within the duty free operator’s premises), (b) advertising, (c) sponsorships, (d) luggage carts, (e) communications media, (f) currency exchange, (g) banking, and (h) ATM services. Except as may be otherwise expressly approved in writing by the Executive Director, Airport-wide Concession Uses are not Permitted Uses. Following the Effective Date, the Executive Director may at any time designate upon written notice to TCM additional concession uses or activities as Airport-wide Concession Uses, and the Executive Director may remove certain concession uses or activities as Airport-wide Concession Uses. TCM shall not permit any Concessionaire to conduct its concession activities in a manner that conflicts with the rights of any Airport-wide Concessionaire, as determined by the Executive Director; provided, however, as to any additional Airport-wide Concession Uses that are designated by the Executive Director following the Effective Date (i.e., Airport-wide Concession Uses that are not included in clauses (a) through (h), inclusive, above), no then existing Concessionaire shall, as the result of such designation, be required to cease conducting any concession activity that was being properly conducted in compliance with this Agreement prior to the date of such designation. Further, in the event that the Executive Director exercises its authority following the Effective Date to designate one or more additional Airport-wide Concession Uses (i.e., Airport-wide Concession Uses that are not included in clauses (a) through (h), inclusive, above) and the implementation of such newly designated Airport-wide Concession Use(s) results in a material decrease in the sales of TCM’s Concessionaires, then the Executive Director will use good faith efforts to recommend for approval to the Board an amendment to this Agreement providing for an equitable adjustment to the MAG as reasonably determined by the Executive Director following consultation with TCM (it being understood, however, that such amendment to adjust the MAG shall require the approval of the Board acting in the Board’s sole and absolute discretion). As a condition to the Executive Director’s recommending such amendment, TCM shall have demonstrated to the reasonable satisfaction of the Executive Director, based on a six (6) month review of operations following the implementation of such newly designated Airport-wide Concession Use, that such use is resulting in a material decrease in the sales of TCM’s Concessionaires that cannot be otherwise mitigated by TCM or its Concessionaires through improved retail marketing efforts. TCM shall not enter into a Unit Concession Agreement with an Airport-wide Concessionaire, unless approved by the Executive Director (in his or her sole discretion). In the event that the Executive Director requests that TCM enter into a Unit Concession Agreement with an Airport-wide Concessionaire, TCM shall make commercially reasonable efforts to do so, and any such Unit Concession Agreement shall be subject to the approval of the Executive Director.
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3.6General Obligation to Operate. Subject to events of Force Majeure and except for periods of closure specified in writing as a part of an approved Definitive Improvement Plan in connection with construction of the TCM Initial Premises Improvements, the Concessionaire Initial Premises Improvements, or periods of closure in connection with any subsequent approved Alterations and Mid-Term Refurbishment (as defined in Section 7.6) as approved in writing by Executive Director, TCM shall provide through the Concessionaires and the Unit Concession Agreements the full range of concession services for the air traveling public and other persons using the Airport, every day of the Primary Term hereof, without exception. TCM shall not divert, cause or permit to be diverted any business from the Premises and shall take all reasonable measures, in every proper manner, to develop, maintain and increase the business conducted by its Concessionaires under the Unit Concession Agreements. TCM shall ensure that each Concessionaire under its Unit Concession Agreement actively operates each Unit so as to best serve public needs consistent with other world-class international airports.
3.7Right to Promote Products; Restriction on Advertising. Subject to the written approval of the Executive Director or as set forth in the approved Business and Operations Plan, TCM may promote the products and services of its Concessionaires within the Facilities in approved designated areas. TCM and its Concessionaires have no rights (a) to advertise or promote the products of any third party, or (b) to participate in any non-City sponsored marketing income program at the Airport. TCM hereby agrees to indemnify, defend and hold City and City Agents (as defined in Section 5.2.4 below) harmless from and against any Claims (as defined in Section 13.2 below) City may suffer or incur as a result of TCM’s or its Concessionaires’ violation of this Section. TCM hereby assigns to City and agrees to pay to City as Additional Rent hereunder any fees, compensation or other revenue received by TCM, directly or indirectly, from any such advertising or product promotion in violation of this Section. Each Concessionaire may, within such Concessionaire’s Unit, promote the third party products and/or services sold by such Concessionaire in such Unit in accordance with the provisions of Section 5.9 of this Agreement.
3.8Quiet-Enjoyment. Subject to the rights reserved in favor of City under this Agreement, TCM, upon payment of Rent hereunder and upon observing and keeping the conditions and covenants of this Agreement on its part to be observed and kept, shall lawfully and quietly hold, use and enjoy the Premises during the term of this Agreement.
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3.9As-Is Condition. Except as expressly otherwise set forth in this Agreement, TCM acknowledges and agrees (on behalf of itself and its Concessionaires) that the Premises (including each Unit within the Premises) is being delivered to and accepted by TCM on the applicable Delivery Date in an “As-Is,” “Where Is” and “With all Faults” condition and without any representation, warranty or implied warranty of any kind or nature as to the condition, use or occupancy which may be made thereof and without any improvements or alterations by City. Except as expressly set forth in this Agreement, TCM (on behalf of itself and its Concessionaires) waives, and City disclaims, all warranties of any type or kind whatsoever with respect to the Premises, whether express or implied, including, by way of description but not limitation, those of fitness for a particular purpose and use.
3.9.1TCM hereby acknowledges that the Premises in TBIT- Area 1 and TBIT Area 2 are being constructed to shell condition by City as described in that certain “Bradley West Modernization, F58 Tenant Lease Exhibits, 100% RFP Submittal, Date: March 28, 2011” which was provided to TCM pursuant to the RFP (herein, the “Shell Condition”) and shall be delivered to TCM in such Shell Condition, and except as otherwise provided herein shall be accepted by TCM “as is” in such Shell Condition and TCM shall assume all risks in connection therewith without representation or warranty by City, express or implied, in fact or by law, on the part of City and without recourse to City. Upon three (3) days’ prior notice to TCM’s project manager, which may be verbal, TCM shall attend final walk through inspections with the City’s project construction manager and the parties shall in good faith identify any failure of the Premises to conform to the Shell Condition. City shall be responsible for correcting or shall require the correction of any failure of the Premises to conform to the Shell Condition as so identified by the parties in good faith.
3.10Rights are Not Exclusive. Subject to the rights reserved to City under this Agreement, TCM (on behalf of itself and its Concessionaires) acknowledges and agrees that (a) subject to TCM’s compliance with the terms and conditions of this Agreement, the rights herein granted to TCM are exclusive to TCM within the Premises covered by this Agreement (except as otherwise expressly provided in this Agreement), but non-exclusive at the Airport (including all portions of the Airport and the Facilities that are outside of the Premises); (b) except to the extent expressly provided in Section 1.2.1 and 1.2.2 above, the rights granted to TCM under this Agreement do not include any right to use, occupy or possess any area other than the Premises (including, without limitation, any new leaseable or concession areas in the Facilities or any new terminals or other facilities developed by City in the future); and (c) City reserves the right to enter into terminal management agreements, and/or other concession agreements with other managers, food and beverage concessionaires and other retail concessionaires and service providers at the Airport that may compete with TCM and the Concessionaires, some of which will be located in the Facilities covered by this Agreement.
3.11General Disputes. In the event of a dispute between TCM (or any of its Concessionaires) and any other Airport tenant, manager or concessionaire as to the services to be offered or products to be sold at any Unit, the Premises or other location, TCM shall meet and confer with Executive Director, and Executive Director shall determine (which determination shall be in the Executive Director’s sole discretion) the services to be offered or products to be sold by each, and any decision by Executive Director shall be final and binding upon TCM, its Concessionaires and such other Airport tenant, manager or concessionaire.
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3.12No Other Uses. TCM and its Concessionaires shall not use nor permit the Premises (or any Unit within the Premises) to be used for any purpose other than the Permitted Uses with respect to such Unit except with the prior written consent of the Executive Director, nor for any use in violation of any applicable present or future law, ordinance, rule or regulation of any governmental authority, agency, department or officer thereof. In the event that TCM or any Concessionaire desires to use the Premises (or any Unit within the Premises) for any purpose other than the Permitted Use for that Unit, TCM may submit a request to Executive Director, and Executive Director may, in Executive Director’s sole and absolute discretion, approve, deny or condition its approval of such request in writing (and any such written approval shall be approved as to form by the City Attorney). Any such decision by Executive Director shall be final and binding upon TCM and any Concessionaire.
3.13Rules and Regulations. TCM shall comply (and shall through the Unit Concession Agreements require its Concessionaires to comply) with the non-discriminatory rules and regulations of the City and the Department of Airports, along with any modifications, amendments and supplements thereto, as are in effect from time to time, for the orderly and proper operation of the Airport, the Facilities, the Common Areas and the Premises (collectively, the “Rules and Regulations”). City shall not be responsible to TCM, any Concessionaire or any other third party for the failure of any other person to observe and abide by any of said Rules and Regulations.
3.14Storage Space. TCM shall only use those areas within the Premises for the storage of equipment, inventory or supplies as are approved by the Executive Director for such use as a part of the DIP Approval and/or the design and construction approval process. The Executive Director may (but shall have no obligation to) make additional storage space available to TCM at the Airport from time to time. In the event the Executive Director makes such additional storage space available to TCM and TCM desires to lease such storage space, City and TCM shall enter a storage space addendum in the form of Exhibit E attached hereto, as such form may be modified from time to time by Executive Director.
3.15Common Areas. Subject to compliance with City’s Rules and Regulations and security requirements, TCM and its Concessionaires shall have the non-exclusive right, in common with others authorized by City, of ingress and egress through all Common Areas (as defined in this Section); provided, however, the Executive Director may, in its sole discretion, and without liability to TCM or any Concessionaire, change the size or location of the Common Areas, including, without limitation, by converting Common Areas to leaseable or other areas, or leaseable areas to Common Areas. City shall use reasonable efforts so as to not prevent access and/or substantially impair access to the Premises in connection with any such changes to the Common Areas. Executive Director may, in Executive Director’s sole discretion, establish and enforce non-discriminatory Rules and Regulations (as defined in Section 3.13 above) concerning the Common Areas, temporarily close portions of the Common Areas for security, maintenance or other purposes, and make changes to the Common Areas including, without limitation, changes in the location of security points, driveways, entrances, exits, parking spaces and the direction and flow of pedestrian and vehicular traffic. For purposes of this Agreement, the term “Common Areas” means all areas and facilities located within the Airport and outside of the Premises, that are designated by the Executive Director from time to time as common use areas for the general use and convenience of concessionaires, tenants and other occupants at the Airport, airline passengers and other visitors to the Airport, such as lobbies, corridors, sidewalks, elevators, escalators, moving sidewalks, parking areas, and facilities, restrooms, pedestrian entrances, driveways, loading zones and roadways. Except for damage caused by TCM or its Concessionaires, neither TCM nor its Concessionaires shall be responsible for the maintenance or repair of any Common Areas located outside of the Premises except as set forth in Section 3.15.1 below. For avoidance of doubt, the parties acknowledge that the TCM Common Areas are not a part of the Common Areas as described in this Section 3.15, and TCM’s obligations with respect to the TCM Common Areas are described elsewhere in this Agreement.
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3.15.1TBIT — Area 1 Common Areas. The Executive Director shall have the right to require that TCM provide for the maintenance of the Common Areas located within the Non-Premises portions of TBIT — Area 1, together with such adjacent Common Areas as designated by the Executive Director. In the event that the Executive Director so elects, City shall reimburse TCM on a monthly basis for the actual cost incurred by TCM (without administrative mark up or profit) for providing such maintenance. The manner and level of service with respect to such maintenance shall be subject to the prior written approval of the Executive Director and set forth in the Business and Operations Plan.
3.16Public Address System. City shall have the right, in its sole discretion, to install one (1) or more public address system speakers in each Unit for announcing flight arrivals and departures and other Airport information. TCM and its Concessionaires shall not install any public address, paging, or other similar audio system in the Premises (including any Unit) at any time, without the prior written approval of the Executive Director (in the Executive Director’s sole discretion). Any installation of a music system, audio/video display or television system in the Premises (including any Unit) shall require the prior written approval of the Executive Director, in his or her sole discretion; provided that no such system shall interfere with the City’s public address system.
3.17Wireless Communications. Without the prior written consent of the Executive Director (in his or her reasonable discretion), TCM and its Concessionaires shall not have any wireless internet system(s) within the Premises (including any Unit). Without the prior written consent of the Executive Director, in his or her reasonable discretion, TCM and its Concessionaires shall not install or use any wireless workstations, access control equipment, wireless internet servers, transceivers, modems or other hardware that transmit or otherwise access radio frequencies. Notwithstanding the prior consent of the Executive Director for the installation of any such system or equipment, the Executive Director shall have the absolute right, upon thirty (30) days’ prior written notice, to require the removal of any such system or equipment (at TCM’s or the Concessionaire’s sole expense) in the event that such system or equipment interferes with any present or future systems or equipment installed by City at the Airport.
3.18Pricing.
3.18.1TCM shall ensure that all Concessionaires shall price their products in accordance with the Airport Pricing Policy. For the purposes of this Agreement, the “Airport Pricing Policy” shall mean establishing prices that are no more than eighteen percent (18%) higher than prices charges by comparable off-Airport businesses located within a twenty-five (25) mile radius of the Airport as more particularly described in the Business and Operations Plan.
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3.18.2TCM shall collect and maintain pricing and menu information for each Unit. Upon request by the Executive Director, TCM shall provide such information to City. The Executive Director may conduct City-initiated price comparisons to ensure compliance with the Airport Pricing Policy as the Executive Director considers necessary. TCM shall be given one (1) week to require its Concessionaires to correct any price overage discrepancies raised by the Executive Director with TCM, or to submit written justification for retaining current prices for these items. In response to TCM’s written justifications, the Executive Director will determine whether overages must be eliminated, and if so, TCM must require its Concessionaires to reduce prices within three (3) business days of the date of Executive Director’s decision. If any City-initiated price comparisons disclose a violation of the requirements of this Agreement, the cost of such City-initiated price comparisons shall be borne by TCM, and upon the delivery of an invoice from City, TCM shall pay the same to City, plus fifteen percent (15%) of such cost incurred as an administrative fee (but in no event less than $100 per occurrence or such greater amount as may be reasonably adjusted by the Executive Director from time to time) (herein, the “Administrative Fee”), within thirty (30) days of receipt of City’s invoice. TCM shall have the right to charge any such Administrative Fees to the applicable Concessionaires.
3.19Airport Employee Discount. TCM shall require its Concessionaires to offer a ten percent (10%) discount on all food and non-alcoholic beverages purchased by those Airport employees of City and employees of Airport tenants who have been issued Airport Security Identification badges by City, which discount shall be based on Concessionaire’s normal non-sale or non-promotional prices.
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4.8Books and Records. TCM shall establish and maintain a business office in the County of Los Angeles. TCM shall maintain in said office or in such other office approved by the Executive Director, during the term of the Agreement, its permanent books and records (herein “Books and Records”), including but not limited to general ledgers, subsidiary ledgers, trial balances, sales journals, invoices, chart of accounts and all other supporting documents wherein are kept all entries and information necessary to perform an audit of (i) rental, fees, and other charges paid and payable to City, (ii) all financial information relating to the TCM Revenues and all other transactions of TCM at the Airport, (iii) any and all construction costs in connection with any construction performed by or an behalf of TCM or its Concessionaires at the Airport, and (iv) any other matters relating to the performance of TCM’s obligations under this Agreement. City may, in the Executive Director’s sole discretion and with reasonable notice to TCM, require TCM to provide access to all Books and Records and other information necessary in connection with any audit by City under this Agreement. City’s right to access such records and information shall survive three (3) years beyond the expiration of each Year under this Agreement. Unless otherwise authorized by the Executive Director in writing, TCM shall retain all Books and Records and any other information necessary to perform any audit as described in this Agreement during such three (3) year period.
4.8.1Examination of Records. City’s accountants or representatives may examine the Books and Records of TCM for the purpose of conducting an audit. TCM shall produce these records for inspection and copying at the Premises or, at Executive Director’s option, City’s offices within twenty (20) days of Executive Director’s request. In the event TCM does not make available to City the pertinent books and records at the Airport or a TCM office located within a fifteen (15) mile radius of the Airport within the aforesaid twenty (20) days as set forth in this Section, TCM agrees to pay for all travel costs, housing, meals, and other related expenses associated with the audit of said books, reports, accounts, and records by City at TCM’s place of records at any time during its ordinary business hours. If TCM’s Books and Records have been generated from computerized data, TCM agrees to provide City with extracts of the data files in a computer readable format or other suitable alternative computer data exchange formats. City shall have the right to interview such employees and representatives of TCM and its Concessionaires as City deems necessary to conduct and support the audit.
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4.8.2Audit; Deficiencies. If it is determined by City as a result of an audit that there has been a deficiency in the payment of any Rent (a “Deficiency”), then such Deficiency shall immediately become due and payable within thirty (30) days of written demand by City. In connection with any audit conducted by City, deficiencies ascertained by applying percentages of error obtained from such testing and sampling to the entire period of reporting under examination will be binding upon TCM. If TCM believes that any audit performed on behalf of City has disclosed an isolated error and wishes to increase the sample size of the audit or perform a detail audit, TCM shall pay City for any additional audit procedures. In the event any deficiencies in the amount of five percent (5%) or greater of any item being audited with respect to Rent payable to City hereunder is ascertained by City, TCM agrees to pay City for the cost of the audit and the Deficiency (and the provisions of Section 4.7.7 (Late Charge) and Section 4.7.8 (Interest) shall apply to the amount of the Deficiency).
4.8.3Confidentiality. The execution of a confidentiality agreement shall not be are prerequisite to the conduct of any audit by City hereunder. However, to the maximum extent permitted under applicable Laws, all information gained by City from such examinations shall be confidential and shall not be disclosed other than as may be required by court order, other legal process or pursuant to the provisions of the California Public Records Act; provided, however, the foregoing shall not prevent the use of such information in connection with any litigation between the City and TCM; provided, further, to the extent commercially reasonable under the then-existing circumstances, City shall use commercially reasonable efforts to give written notice to TCM in advance of such disclosure to afford TCM the opportunity to attempt to secure available protective measures to safeguard such information.
4.9Taxes. TCM shall pay all taxes and assessments of whatever character that may be levied or charged upon the rights of TCM (and/or its Concessionaires) to use the Premises (or any portion thereof), or upon TCM’s and its Concessionaires’ improvements, fixtures, equipment or other property thereon, or upon TCM’s or its Concessionaires’ operations in connection with this Agreement. In accordance with California Revenue and Taxation Code Section 107.6(a), City states that by TCM’s executing this Agreement and accepting the benefits thereof, a property interest may be created known as a “possessory interest” and such property interest will be subject to property taxation. TCM, as the party in whom the possessory interest is vested, may be subject to the payment of the property taxes levied upon such interest. TCM shall protect, defend, indemnify and hold harmless City and City Agents from and against Claims incurred by or asserted against City or any City Agent in connections with any and all present or future taxes and assessments of whatever character that may be levied or charged upon the rights of TCM (and/or its Concessionaires) to use the Premises (or any portion thereof), or upon TCM’s and its Concessionaires’ improvements, fixtures, equipment or other property thereon, or upon TCM’s or its Concessionaires’ operations in connection with this Agreement. TCM shall have the right to pass through all of such taxes to its Concessionaires but without any administrative mark up or profit.
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VOPERATING STANDARDS.
5.1Operating Standards. This Article and its Sections pertain to TCM’s operational obligations. The operating standards set forth in Article V and its Sections below are minimum operating standards, and are in addition to the operating standards set forth in the Business and Operations Plan. The parties agree that TCM’s performance of its obligations under this Article V with respect to the monitoring and enforcement of the operating standards for concession operations within the Premises are extremely important to City, and that TCM’s failure to perform those activities will result in administrative and monitoring expenses to City and its staff, which may be charged to TCM in the discretion of the Executive Director.
5.2Staffing and Personnel.
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5.2.1Generally. TCM shall employ a full-time trained professional staff at all times during the term of this Agreement of sufficient size, expertise, ability, suitability, and experience in retail, customer service and concession management to carry out all of its obligations and responsibilities under this Agreement. TCM shall maintain a sufficient number of operating staff on-site at the Premises during the service hours as more particularly set forth in the Business and Operations Plan. TCM operating staff on the Premises shall be available by telephone and/or such other communications device as the Executive Director may require during the service hours. TCM shall require its Concessionaires to maintain a sufficient number of personnel, including, without limitation, cashiers, management and supervisory personnel, to fully meet the needs of customers during the service hours. TCM shall, at its sole cost and expense, furnish (and shall require its Concessionaires to furnish) prompt, courteous and efficient service and shall ensure polite and inoffensive conduct and demeanor on the part of their respective representatives, agents and employees, collectively referred to herein as “Personnel.” All such Personnel shall provide a high level of customer service consistent with first class food and beverage and retail concession operations and shall use skill and diligence in the conduct of business. All such Personnel, while on or about the Premises (and any Unit therein), shall be clean, neat in appearance and shall be appropriately attired, with badges or other suitable means of identification clearly visible. TCM shall ensure that all Personnel conform to personal hygiene and food handling requirements established by the Rules and Regulations and the applicable Laws (hereinafter defined), whichever is most stringent. No Personnel, while on or about the Premises (or any Unit therein), shall use improper language, act in loud, boisterous or otherwise improper way or be permitted to solicit business in an inappropriate manner. TCM shall ensure that all Personnel that interact with the public can adequately communicate with customers and are professional and courteous in interactions with the public. All Personnel shall have sufficient knowledge of the Facilities and the Airport to promptly direct and assist passengers in and around the Facilities and the Airport.
5.2.2Customer Complaints. In the event that TCM or any of its Concessionaires receives complaints concerning the concession operations within the Premises, TCM shall comply with the policies and procedures regarding customer complaints set forth in the Business and Operations Plan.
5.2.3Objections. City (through the Executive Director) shall have the right to object to the demeanor, conduct, and appearance of any Personnel at the Premises (including any Unit therein), subject to applicable Laws. TCM shall take all steps reasonably necessary to remedy the cause of any objection by City. TCM shall be responsible for the immediate removal from the Premises, or discipline in accordance with TCM’s or the applicable Concessionaire’s employee discipline policy, of any Personnel who participate in improper or illegal acts on the Airport, or who violate any of the Rules and Regulations or any provision of this Agreement.
5.2.4City Not Liable for Employment Issues. This Agreement does not establish any employer-employee, joint venture or agency relationship between City and TCM (or any Concessionaire), and TCM is and shall be engaged independently in the business of managing the Premises (including each Unit therein) on its own behalf. All employment arrangements and labor agreements with Personnel are, therefore, solely and exclusively TCM’s or the applicable Concessionaire’s rights, obligations and liabilities, and City shall have no obligations or liability with respect thereto. TCM hereby agrees to indemnify, defend, and hold City, the Board, Executive Director and their respective Board members, officers, directors, employees, agents, advisors, attorneys, and representatives (collectively, “City Agents”) harmless from and against any Claims of whatever nature that arise in connection with any such employment arrangements or labor agreements relating to TCM or any of its Concessionaires.
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5.3TCM’s Key Personnel. During the term of this Agreement, TCM shall provide qualified Personnel to staff each of the key management positions described in the Business and Operations Plan. The Executive Director shall have the right to concur with TCM’s selection of the person occupying the position of Senior General Manager. The Executive Director shall have the right to object to the performance of any person occupying the Senior General Manager position, and subject to compliance with applicable Laws, TCM shall promptly replace the person serving in the Senior General Manager position with another qualified person satisfactory to the Executive Director.
5.4Hours of Operation.
5.4.1Minimum Hours of Operation. The Premises (including the Units within the Premises) shall be open for business every day, three hundred sixty-five (365) days per year. TCM shall operate the Premises and shall require its Concessionaires to operate each Unit within a Facility in accordance with the following minimum hours of operation (“Minimum Hours of Operation”): (i) if such Unit is located on the departure level of a Facility, Minimum Hours of Operation shall be at least two hours before the first scheduled departure from such Facility until the last departure of the day from such Facility, without exception, and (ii) if such Unit is located on the arrival level of a Facility, Minimum Hours of Operation shall be from the first scheduled arrival at such Facility to at least an hour after the last scheduled arrival at such Facility, without exception. Except in connection with the expiration or earlier termination of this Agreement, TCM may not vacate or abandon the Premises (including any Unit therein) at any time.
5.4.2Executive Director May Alter Hours. The Executive Director may, on 24 hour notice to TCM temporarily modify the Minimum Hours of Operation for any Premises (including any Unit therein). After consultation with TCM, the Executive Director may in his or her reasonable discretion, upon ten (10) days’ notice to TCM, permanently modify the Minimum Hours of Operation for any Premises (including any Unit therein). TCM shall require its Concessionaires to comply with such modifications. Upon the written request of TCM, Executive Director may, from time to time, authorize a later opening or earlier closing time for any Premises (or any Unit therein), provided Executive Director first finds that TCM has submitted adequate justification therefor; provided, however, decreases in passenger traffic shall not be considered adequate justification.
5.5Monthly Sales Reports; Credit Cards.
5.5.1Gross Sales Reports. During the Primary Term, TCM shall, on or before the twenty-fifth (25th) day of each month, provide to City a monthly report setting forth the gross sales by Unit of each of the Units within the Premises for the prior calendar month. Such monthly report shall be in such form and detail as may be prescribed by the Executive Director from time to time.
5.5.2Credit Cards, Foreign Currency. TCM’s Concessionaires shall not be required to accept foreign currency. If a Concessionaire elects to accept foreign currency, such may only be accepted for payment of goods and shall not be exchanged. In addition, all Concessionaires shall be required to accept all major credit and debit cards in payment for goods and services sold, and there shall be no minimum purchase requirement for transactions using such credit and debit cards. In the event of a dispute regarding what constitutes a major credit or debit card, the determination of the Executive Director shall be conclusive and binding. Concessionaires shall provide, without charge, change-making services at each cashier location in United States denominated coin and currency.
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5.6Deliveries; Access and Coordination. To the extent airside access rights are granted to TCM or its Concessionaires, TCM shall comply (and shall require its Concessionaires to comply) with all applicable Rules and Regulations and Laws in order to obtain clearance for airside access. Except and to the extent expressly directed by Executive Director in writing, all deliveries of products, goods, merchandise, supplies, and other materials to and from the Premises (including any Unit therein) and trash removal from the Premises (including any Unit therein) necessary to the operation of the Premises (or any Unit therein) shall be conducted through the airside locations designated in the DIP Approval, as such airside locations may be changed by Executive Director from time to time upon written notice to TCM. TCM acknowledges and agrees that all such deliveries by TCM and its Concessionaires shall be in conformance with the Rules and Regulations and security requirements in effect with respect to airside operations at the Airport, and TCM and its Concessionaires shall bear all costs incurred by them in connection with their respective compliance. TCM shall make (and shall cause its Concessionaires to make) deliveries only within the times and at locations authorized by Executive Director. TCM shall require that all airside deliveries be made by vehicles and drivers qualified and permitted by City to drive over airside access roadways. Delivery hours and locations may be specified and changed from time to time at the sole discretion of Executive Director.
5.6.1Removal of Garbage and Refuse. TCM shall strictly comply (and shall cause its Concessionaires to comply) with the Rules and Regulations and applicable Laws regarding the disposition of trash, rubbish, refuse, garbage and recycled materials, shall regularly remove all trash, rubbish, refuse, garbage and recycled materials from the Premises to the appropriate garbage or refuse disposal area or recycled materials area designated by Executive Director from time to time and shall remove the accumulation of all such material in such area or areas at frequent intervals. Prior to removal to such garbage or refuse disposal area, TCM shall (and shall require its Concessionaires to) store all trash and other waste in covered, odor, leak and vermin proof containers (including recycling containers), such containers to be kept in areas not visible to members of the public. Accumulation of trash, boxes, cartons, barrels or other similar items shall not be permitted in any public area at Airport.
5.6.2LAWA Waste Reduction and Removal. TCM shall comply (and shall require its Concessionaires to comply) with current and future Rules and Regulations and other regulations promulgated by the City of Los Angeles regarding the reduction and recycling of trash and debris. Without limiting the generality of the foregoing, TCM shall participate (and shall require its Concessionaires to participate) in meeting the Airport’s mandated goal of seventy percent (70%) waste diversion by 2015, by developing and implementing a program to remove as much recyclable material from the waste stream as possible (a “Recycling Program”). Any Recycling Program shall consist of at a minimum mixed office paper and cardboard recycling, beverage container recycling in employee break areas and public areas if applicable, diversion through 2-sided copying, reuse of pallets, utilization of minimum thirty percent (30%) recycled content copy paper and other recycled content paper goods. TCM shall prepare and submit to City a written description of such Recycling Program with respect to the Premises (and each Unit therein) as part of the Business and Operations Plan. TCM shall incorporate reasonable revisions to such Recycling Program required by City. If TCM’s corporate management has a written policy on waste reduction and sustainability, TCM shall provide a copy of such policy to City at the notice address set forth in the Basic Information, Attention: LAWA Recycling Coordinator. TCM shall provide periodic reports as outlined in the Business and Operations Plan to the LAWA Recycling Coordinator (in the form and format prescribed by City) detailing the volume and type of materials diverted from the waste stream in accordance with such Recycling Program. Such reports shall also describe other waste minimization practices, such as use of compostable utensils and dishware, reuse of materials and equipment, salvaging of materials and recycling of construction and demolition waste. Without limiting the generality of City’s other access and inspection rights under this Agreement, City shall have the right to access the Premises during regular business hours to review and verify TCM’s compliance with its Recycling Program and other waste minimization practices. LAWA discourages the use of polystyrene foam including one-time use clamshell food containers, bowls, plates, trays, cartons, and cups in which food or beverages are placed or packaged. In addition, restaurants and food vendors are required to use biodegradable or compostable food service ware unless an affordable alternative is not available.
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5.6.3Coordinated Delivery and Trash/Re-Cycling Removal System. TCM acknowledges that the Executive Director may implement coordinated systems for airside access deliveries and Trash/Recycling Removal and that such coordinated systems may (a) be operated by one or more third party contractors, (b) require the use of a designated transfer locations, (c) require the payment or reimbursement by TCM, its Concessionaires and other participants of costs and expenses, and any such amounts payable or reimbursable if paid to City shall be Additional Rent hereunder, or may be payable to such third party contractors pursuant to separate agreements with such contractors; and (d) TCM understands and acknowledges that, if implemented, participation with the coordinated systems may be mandatory. TCM acknowledges that such coordinated systems may not become effective until after the commencement of the Primary Term of this Agreement. TCM shall be responsible for all deliveries until such time as Executive Director delivers written notice to TCM that such systems are being implemented. TCM shall be permitted to pass through all of such costs and expenses to its Concessionaires but without any administrative markup or profit.
5.7Quality Assurance Audits. TCM shall perform (and shall cause its Concessionaires to perform) quality assurance audits with respect to the operations at each Unit and the Premises and compliance with the terms of this Agreement in accordance with the provisions of the Business and Operations Plan.
5.8Prohibited Acts. TCM shall not do or permit to be done anything specified in Sections 5.8.1 through 5.8.8. Specifically, TCM shall not (and ensure that its Concessionaires do not):
5.8.1Interfere with Access. Do anything which may interfere with free access and passage in the Premises, the Common Areas adjacent thereto (including, without limitation, the elevators, escalators, streets or sidewalks of the Airport), or any restricted non-Common Areas of the Airport, or hinder security, police, fire fighting or other emergency personnel in the discharge of their duties, or hinder access to utility, heating, ventilating or air-conditioning systems, or portions thereof, on or adjoining the Premises or the Common Areas adjacent thereto. Without limiting the generality of the foregoing, TCM (and its Concessionaires) shall not install any racks, stands or other display of merchandise or trade fixtures at the Airport outside of the Premises without the prior written consent of Executive Director.
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5.8.2Interfere with Systems. Do anything which may interfere with the effectiveness of utility, heating, ventilating or air-conditioning systems or portions thereof in or adjoining the Premises (including lines, pipes, wires, conduits and equipment connected with or appurtenant thereto) or interfere with the effectiveness of elevators or escalators in or adjoining the Premises, or overload any floor in the Premises.
5.8.3Permit Smoking Where Prohibited. Do anything contrary to the Board of Airport Commissioners’ policy, City ordinances, or Section 41.50 of the Los Angeles Municipal Code, which prohibits smoking.
5.8.4Install Unauthorized Locks. Place any additional lock of any kind upon any window or interior or exterior door in the Premises (including any Unit therein), or make any change in any existing door or window lock or the mechanism thereof, unless a key therefor is maintained in such Premises (including any Unit therein), nor refuse, upon the expiration or sooner termination of this Agreement, to surrender to Executive Director any and all keys to the interior or exterior doors in, and on the Premises (including each Unit therein), whether said keys were furnished to or otherwise procured by TCM or its Concessionaire, and in the event of the loss of any keys furnished by Executive Director, TCM shall pay City, within thirty (30) days of written demand, the cost for replacement thereof, and the cost of re-keying City’s locks. TCM shall install (or cause its Concessionaires to install) lock boxes in the Premises (including all Units therein) with copies of keys, as required by City.
5.8.5Noise and Lights; Other Interference. No loudspeakers, televisions, video monitors, sound systems, audio players, radios, flashing lights or other devices shall be installed in the Premises (including any Unit therein) or used in a manner so as to be heard or seen outside of such Premises (or such Unit) without the prior written consent of Executive Director (including obtaining, and complying with, all applicable City construction approval conditions). TCM shall conduct its, and require its Concessionaires to conduct their, operations on the Premises in such manner as to reduce as much as is reasonably practicable, considering the nature and extent of said operations, any and all activities which interfere unreasonably with the use of other premises adjoining the Premises at the Airport, including, but not limited to, the emanation from the Premises of noise, vibration, movements of air, fumes, and odors.
5.8.6Increase Liability. Do any act or thing upon or about the Premises (any Unit therein) which will invalidate, suspend or increase the rate of any fire insurance policy required under this Agreement, or carried by City, covering the Premises, or the Facility in which the same are located or which, in the opinion of Executive Director, may constitute a hazardous condition that will increase the risks normally attendant upon the operations contemplated under this Agreement. If, by reason of any failure on the part of TCM after receipt of notice in writing from City to comply with the provisions of this section, any fire insurance rate on the Premises, or any part thereof, or on the Facility in which the same are located, shall at any time be higher than it normally would be, then TCM shall pay City, within thirty (30) days of written demand as Additional Rent, that part of all fire insurance premiums paid by City which have been charged because of such violation of failure of TCM; provided, however, that nothing contained herein shall preclude TCM from bringing, keeping or using on or about any Unit such materials, supplies, equipment and machinery as are appropriate or customary in carrying on its business, or from carrying on said business in all respects as is customary.
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5.8.7Airport Hazard. Make any uses of the Premises (including any Unit therein) in any manner which might interfere with the landing and taking off of aircraft from the Airport or otherwise constitute a hazard to such operations.
5.8.8Permit Unlawful Use. Use or allow the Premises to be used for any improper, immoral, unlawful or objectionable purposes, or commit any waste upon the Premises.
In the event that any of the aforesaid covenants or restrictions set forth above in this Section 5.8 is breached, City reserves the right to enter upon the Premises (including any Unit therein) and cause the abatement of such interference at the expense of TCM.
5.9Signs, Promotions & Displays.
5.9.1Subject to the restrictions contained in Section 3.7, TCM shall not erect, construct or place (and shall cause its Concessionaires not to erect, construct or place) any sign, promotion or display in, on or upon any portion of the Premises (including any Unit therein) or the Airport unless TCM (or such Concessionaire) has submitted to Executive Director drawings, sketches, design dimensions, and type and character of such sign, promotion or display proposed to be placed thereon or therein and has received written approval from Executive Director with respect thereto. Notwithstanding the foregoing, each Concessionaire may, without the prior consent of the Executive Director, place signs or displays within such Concessionaire’s Unit that promote the products and/or services sold by such Concessionaire in such Unit, provided that such sign or display is not readily visible from outside of such Unit; unless otherwise disapproved in writing by TCM or the Executive Director, which disapproval by the Executive Director may require the removal of such sign or display at any time as determined in the Executive Director’s sole discretion. All signs, promotions and displays shall comply with applicable design guidelines of City as revised from time to time and all applicable construction approvals and conditions. TCM (and its Concessionaires) shall not erect, construct or place any sign, promotion, advertisement or display outside the Premises, without the prior written approval of the Executive Director. TCM shall (and shall require its Concessionaires to) remove any signage or displays that the Executive Director determines to be removed.
5.9.2Other than signs, promotions and displays approved or permitted pursuant to Section 5.9.1, TCM (and its Concessionaires) shall not, at any time, under any circumstances, install, place, or maintain any type of advertising in, on or upon the Premises or the Airport.
5.9.3In addition, TCM’s Concessionaires’ Units shall be free of all third party advertising, signs, credit card application dispensing units, posters, and banners. Noncompliance by TCM’s Concessionaire with the provisions of this Section 5.9 shall result in City’s right to immediately remove said unauthorized signs, advertising, or other written materials and to store same at TCM’s expense. City may dispose of said unauthorized signs, advertising, or other written materials if TCM has not paid City’s expenses for removal and storage, plus the Administrative Fee, and claimed said signs, advertising, or other written materials within fifteen (15) calendar days after City has provided written removal notice.
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5.9.4Removal of Signs. Upon the expiration or earlier termination of this Agreement (or any partial termination with respect to portion of the Premises), TCM shall remove, obliterate or paint out, any and all of TCM’s or its Concessionaires’ signs, promotions and displays as Executive Director may direct. In addition, upon demand by Executive Director, TCM shall remove, obliterate or paint out, any signs, promotions, advertising or displays placed or installed in violation of this Agreement, as Executive Director may direct. If TCM fails to do so, Executive Director may cause said work to be done at the sole cost and expense of TCM, and TCM shall pay the same to City, plus the Administrative Fee, as Additional Rent within thirty (30) days of receipt of City’s invoice.
5.10Licenses and Permits. TCM shall obtain and pay for (and shall require its Concessionaires to obtain and pay for) all licenses and permits necessary or required by law for the conduct of TCM’s and its Concessionaires’ operations at the Premises.
5.11Compliance with Laws.
5.11.1TCM shall, at TCM’s sole cost and expense, (and shall require TCM’s Concessionaires, employees, contractors, representatives, agents, permittees and invitees (individually, a “TCM Party” and collectively, the “TCM Parties”) to) fully and faithfully observe and comply with (a) all municipal, state and federal laws, statutes, codes, rules, regulations, ordinances, requirements, and orders (collectively, “Laws”), now in force or which may hereafter be in force pertaining to the Premises or TCM’s or its Concessionaires’ use of the Premises, the Facility(ies) or the Airport (including without limitation, (i) all safety, security and operations directives of City, including by Executive Director, which now exist or may hereafter be promulgated from time to time governing conduct on and operations at the Airport or the use of facilities at the Airport; and (ii) any and all valid and applicable requirements of all duly-constituted public authorities (including, without limitation, the Department of Transportation, the Department of Homeland Security, the Federal Aviation Administration, and the Transportation Security Administration)); (b) all recorded covenants, conditions and restrictions affecting the Airport (“Private Restrictions”) now in force or which may hereafter be in force; and (c) the Rules and Regulations. The judgment of any court of competent jurisdiction, or the admission of TCM in any action or proceeding against TCM, whether City be a party thereto or not, that TCM has violated any Laws or Private Restrictions, shall be conclusive of that fact as between TCM and City. As used in this Agreement, “Laws” shall include all present and future federal, state and local statutes, ordinances and regulations and City ordinances applicable to TCM (or its Concessionaires), the Premises (including the Units), the Permitted Uses or the Airport, including but not limited to requirements under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., including, without limitation, to Title III thereof, and all regulations and guidelines related thereto, together with any and all laws, rules, regulations, ordinances, codes and statutes now or hereafter enacted by local or state agencies having jurisdiction thereof (including, without limitation, all of the requirements of Title 24 of the California Code of Regulations), as the same may be in effect on the date of this Agreement and may be hereafter modified, amended or supplemented (collectively, the “ADA”), all acts and regulations relating in any way to food and drugs, worker’s compensation, sales and use tax, credit card processing, social security, unemployment insurance, hours of labor, wages, working conditions, the Immigration Reform and Control Act of 1986, the City of Los Angeles Administrative Code, and all Hazardous Materials Laws (as defined in Section 15 below).
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5.11.2TCM agrees to pay or reimburse City as Additional Rent for any civil penalties or fines which may be assessed against City as a result of the violation by TCM or any TCM Party of any Laws or Private Restrictions, which payment shall be made by TCM within thirty (30) days from receipt of City’s invoice for such amount and documentation showing that payment of such penalty or fine is TCM’s responsibility hereunder.
5.12Airport Operations. TCM acknowledges that the operational requirements of the Airport as an airport facility, including without limitation security requirements, are of paramount importance. TCM acknowledges and agrees that TCM must conduct its business (and require its Concessionaires to conduct their business) in a manner that does not conflict with the operational requirements of the Airport as an airport facility and that fully accommodates those requirements. Without limiting other waivers herein, TCM waives all Claims against City and City Agents arising out of or connected to the operation of the Airport as an airport facility.
VIAIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISE PROGRAM.
6.1Compliance with Department of Transportation (DOT). City strictly prohibits all unlawful discrimination and preferential treatment in contracting, subcontracting and purchasing, leasing or any subleasing under this Agreement (the “Non-Discrimination Policy”). Additionally, City has established an Airport Concession Disadvantaged Business Enterprise program in accordance with regulations of the U.S. Department of Transportation, 49 Code of Federal Regulations Part 23 (the “ACDBE Rules”). TCM shall comply with the Non-Discrimination Policy and the ACDBE Rules and shall not discriminate against any business owner because of the owner’s race, color, national origin, or sex in connection with its performance under this Agreement, the management of the concession, subleasing, or purchasing. TCM shall cooperate with City in City’s program of recruiting, training, providing technical assistance and holding workshops to ensure that contracting, subcontracting and purchasing opportunities available under this Agreement are accessible and available to all qualified businesses owners, including “Airport Concession Disadvantaged Business Enterprises” (“ACDBEs”), as defined in the ACDBE Rules. In order to provide a fair opportunity for ACDBE participation, TCM shall make good faith efforts, within the meaning of the ACDBE Rules, to provide for a level of ACDBE participation in the concession operations by Concessionaires contemplated by this Agreement equal to or greater than twenty percent (20%) for retail and service concessions and twenty five percent (25%) for food and beverage concessions.
6.2Substitutions. Should a substitution or an addition of an ACDBE become necessary, TCM shall comply with all requirements of the ACDBE Rules. Failure to comply with the ACDBE Rules shall constitute a Default of this Agreement.
6.3Monthly Report. In order to assure compliance with the Non-Discrimination Policy and the ACDBE Rules, TCM shall submit, in the format required by Executive Director, a monthly report to City, describing the gross receipts of each initial ACDBE (and each substitute ACDBE), in each case calculated in accordance with the requirements of the Business and Operations Plan. TCM shall submit in the format required by the Executive Director such other information as may be requested by the Executive Director to ensure compliance with the ACDBE Rules.
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VIIIMPROVEMENTS AND REFURBISHMENTS.
7.1TCM’s Construction Obligations. TCM shall, at TCM’s cost and expense, complete in a timely manner the construction of all improvements and the installation of all fixtures and equipment required to be constructed or installed by TCM pursuant to the terms of this Agreement (including as set forth in any DIP Approval). TCM shall require its Concessionaires, at such Concessionaire’s cost and expense, to complete in a timely manner the design and construction of all improvements and the installation of all fixtures and equipment required to be constructed or installed by such Concessionaire pursuant to and in compliance with the terms of this Agreement (including as set forth in any DIP Approval or CIP Approval). TCM shall act as project manager for its Concessionaires’ design and construction programs. TCM shall coordinate TCM and its Concessionaires’ construction activities in a manner consistent with other construction activities occurring within the Facilities. In the event of a dispute between TCM (or any of its Concessionaires) and any other Airport tenant, manager or concessionaire regarding design or construction activities or related interference with operations, TCM shall immediately report such dispute to the Executive Director and promptly thereafter meet and confer with the Executive Director. The Executive Director shall have the right to resolve any such dispute, and any such decision or other resolution by the Executive Director shall be final and binding upon TCM (and its Concessionaires). Such decision or other resolution shall be in the Executive Director’s sole discretion.
7.2Prevailing Wage. Construction work performed on City’s property will require payment of prevailing wages, if applicable. TCM is obligated to make the determination of whether the payment of prevailing wages is applicable, and TCM shall be bound by and comply with applicable provisions of the California Labor Code and Federal, State, and local laws related to labor. TCM shall indemnify, defend and pay or reimburse City for any damages, penalties or fines (including, but not limited to, attorney’s fees and costs of litigation) that City incurs, or pays, as a result of noncompliance with applicable prevailing wage laws in connection with the construction work performed in connection with this Agreement (including, without limitation, the TCM Initial Premises Improvements, the Concessionaire Initial Premises Improvements, the Initial Non-Premises Improvements, the Mid-Term Refurbishment and any Alterations hereunder).
7.3Condition of Premises on Delivery Date. Each DIP Approval will set forth a description of the condition of the Premises as of the Delivery Date. Unless otherwise agreed in writing by the Executive Director, upon the Delivery Date for each portion of the Premises, TCM and its Concessionaires shall accept such Premises in it’s “AS IS, WHERE IS” condition, and “WITH ALL FAULTS” and without any improvements or alterations to be made or constructed by City. TCM acknowledges and agrees that TCM has performed its own due diligence on all matters relating to the Areas and the Premises, including all technical and construction matters. Any “as-built” drawings, utility matrixes, or other technical information (including, but not limited to, architectural drawings or AutoCAD or other computer files) provided by City may not be accurate or complete. TCM’s (or its Concessionaires) use of or reliance on any such information shall be at its sole risk, and City shall have no liability arising therefrom. The parties acknowledge that a DIP Approval may include a contingency as a component of the not-to-exceed dollar amount for the TCM Initial Premises Improvements and/or the Initial Non-Premises Improvements. Such contingency is intended to apply to costs that may not be known or certain at the time of such DIP Approval and which costs may relate to TCM Contingencies. In the event that a contingency is established in a DIP Approval, the use of such contingency is subject to the joint authorization by TCM and the Executive Director. In the event that the Executive Director determines that reasonable justification exists to increase the not-to-exceed dollar amount for the Initial Non-Premises Improvements set forth in a DIP Approval, then the Executive Director will use good faith efforts to recommend for approval to the Board a supplemental DIP Approval containing an adjustment to the not-to-exceed dollar amount for such Initial Non-Premises Improvements (it being understood, however, that such supplemental DIP Approval requires the approval of the Board acting in the Board’s sole and absolute discretion).
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7.4Construction of Initial Premises Improvements. TCM shall provide, or require its Concessionaires to provide, all improvements which are necessary to operate the Premises (including all Units therein) in accordance with the applicable DIP Approval and the applicable CIP Approvals for such Premises to the satisfaction of Executive Director. The construction of the Initial Premises Improvements shall commence on the Delivery Date for such Premises. Any closure during the construction of the TCM Initial Premises Improvements or the Concessionaire Initial Premises Improvements made by TCM’s Concessionaires, as well as the timing of applicable design and construction periods shall be approved by Executive Director and specified in writing as part of either the DIP Approval or the Construction Approval Process (as defined in Section 7.7 below). TCM shall complete the TCM Initial Premises Improvements, and require its Concessionaires to complete their respective Concessionaire Initial Premises Improvements and to commence regular concession operations within the Premises, by the applicable Premises Completion Date. The Executive Director shall have the right (but not the obligation) to extend the Premises Completion Date, which right may be exercised by the Executive Director in his or her sole discretion. TCM shall also be responsible for the timely design and construction of any further improvements or renovations to the Premises (or any Unit therein) that may be required following the construction of the initial improvements on the Premises.
7.4.1Concessionaire Improvement Plan. Within the time prescribed in the applicable DIP Approval, TCM shall cause each of its Concessionaires to prepare and deliver to the Executive Director for review and approval a definitive and comprehensive plan for the development, implementation and operation of such Concessionaire’s Concessionaire Initial Premises Improvements (herein, the “Concessionaire Improvement Plan”). Except as otherwise approved by the Executive Director (acting in his or her reasonable discretion), each Concessionaire Improvement Plan shall be a logical progression of the applicable DIP Approval. Except as may be expressly agreed in writing by the Executive Director, all design and construction work contemplated by any Concessionaire Improvement Plan shall be performed by, and at the expense of, TCM (or its Concessionaires).
7.4.2Contents of Concessionaire Improvement Plan. Each Concessionaire Improvement Plan for a Unit should include, but not necessarily be limited to:
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7.4.3Response to Comments by the Executive Director. The Executive Director shall use reasonable efforts to respond to the submission of a Concessionaire Improvement Plan within ten (10) business days following receipt. TCM shall (or require the Concessionaire to), within ten (10) business days following receipt from the Executive Director of any requested revisions to or comments regarding deficiencies of the Concessionaire Improvement Plan, respond to the Executive Director with a revised or supplemental Concessionaire Improvement Plan which addresses such requested revisions, comments or deficiencies. Any requested revisions or comments by the Executive Director will not be unreasonable. The Executive Director shall use reasonable efforts to respond to any resubmission or supplement to a Concessionaire Improvement Plan within five (5) business days following receipt. If the Executive Director shall fail to respond to any submission or resubmission of a Concessionaire Improvement Plan within the specified time periods set forth in this Section 7.4.3, then TCM (or its Concessionaire) shall have a day for day extension in which to submit any revised or supplemental Concessionaire Improvement Plan. The parties also agree to use their commercially reasonable efforts to expedite the approval process hereunder with respect to the High Priority Areas in TBIT so that TCM’s Concessionaires shall have an adequate time to obtain competitive bids, award contracts and perform the Concessionaires respective construction activities in order to meet the opening dates of such High Priority Areas.
7.4.4Rejection of Concessionaire Improvement Plan. In the event that TCM (or its Concessionaire) is unable or unwilling to revise or supplement a Concessionaire Improvement Plan for a Unit in the manner required by this Agreement, the Executive Director shall have the right to reject such Concessionaire Improvement Plan for such Unit, which rejection shall be in writing. In the event that the Executive Director rejects any Concessionaire Improvement Plan for any Unit, then TCM shall, within ten (10) business days, cause to be submitted a substitute Concessionaire Improvement Plan with respect to such Unit. TCM acknowledges and agrees that, in the event that the Executive Director rejects or otherwise withholds its approval of any Concessionaire Improvement Plan for any Unit, City shall have no liability or obligation to TCM or any Concessionaire whatsoever.
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7.4.5Approval of Concessionaire Improvement Plan. The Executive Director shall have the right to reasonably condition the approval of any Concessionaire Improvement Plan on such further actions, undertakings or requirements to be performed by such Concessionaire or TCM as the Executive Director may deem necessary or appropriate. Each approval issued by the Executive Director approving a Concessionaire Improvement Plan (a “CIP Approval”) shall be in writing and shall contain the following:
Each CIP Approval shall be deemed to be conditioned upon TCM’s (and its Concessionaire’s) compliance with the applicable provisions of this Agreement (including, without limitation, the provisions of this Article VII), regardless of whether such CIP Approval expressly so states. Except as otherwise approved by the Executive Director, all Concessionaire Improvement Plans shall follow applicable portions of the Design and Construction Handbook. Within fifteen (15) business days following receipt by TCM of any CIP Approval issued by the Executive Director, TCM shall countersign (and shall require the Concessionaire to countersign) and return a copy of such CIP Approval to City, signifying TCM’s and such Concessionaire’s agreement to_and acceptance of such CIP Approval (including any Conditions of Approval contained therein). The failure of TCM or such Concessionaire to so countersign and return a copy of such CIP Approval to City within said fifteen (15) business day period shall render such CIP Approval revocable by the Executive Director upon written notice to TCM at any time thereafter.
7.5Improvement Financial Obligation. Unless otherwise approved by the Executive Director, TCM covenants and guarantees that TCM and/or its Concessionaires shall on average make a collective investment in the TCM Initial Premises Improvements and the Concessionaire Initial Premises Improvements equal to Nine Hundred Seventy Two Dollars and No Cents ($972.00) per square foot of area, such amount being based on the total amounts expended by TCM on the TCM Initial Premises Improvements and by TCM’s Concessionaires on the Concessionaire Initial Premises Improvements, divided by the total square footage of the Units (the “Initial Minimum Investment Amount”). Such Initial Minimum Investment Amount shall be expended by TCM on the TCM Initial Premises Improvements (or by TCM’s Concessionaires on the Concessionaire Initial Premises Improvements) constructed in accordance with this Agreement on or before the applicable Premises Completion Date.
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7.6Mid-Term Refurbishment. TCM shall plan for and cause the completion of the refurbishment of the Premises in the manner set forth in this Section 7.6 (the “Mid-Term Refurbishment”) no later than June 30, 2023 (the “Mid-Term Refurbishment Completion Date”). The Executive Director shall have the discretion to defer the timing of the Mid-Term Refurbishment.
7.6.1Mid-Term Refurbishment Plan. No later than June 30, 2022, TCM shall prepare and deliver to City for Executive Director’s review and approval a Mid-Term Refurbishment plan (the “Mid-Term Refurbishment Plan”), which shall meet the then-current requirements imposed by City as part of the Construction Approval Process, and shall otherwise include information similar to that contained in the Definitive Improvement Plan for the TCM Initial Premises Improvements and Concessionaire Initial Premises Improvements. Upon receipt and review of such Mid-Term Refurbishment Plan by Executive Director and as a part of the Construction Approval Process, TCM shall incorporate any comments from Executive Director and shall re-submit such Mid-Term Refurbishment Plan until it has been approved by Executive Director. The Mid-Term Refurbishment Plan shall include not-to-exceed dollar amounts for purposes of the costs that are allowed as Qualified Investment under Section 9.3 below.
7.6.2Construction and Completion of Mid-Term Refurbishment. TCM shall construct and complete the Mid-Term Refurbishment in accordance with the Mid-Term Refurbishment Plan approved by Executive Director and the other requirements contained in this Agreement. TCM and its Concessionaires shall expend for the design and construction of the Mid-Term Refurbishment, as a minimum, a dollar amount equal to twenty percent (20%) of the dollar amount expended by TCM and its Concessionaires in connection with the Initial Premises Improvements (the “Minimum Mid-Term Refurbishment Amount”). Amounts expended for deferred maintenance, repairs and replacements that should previously have been performed pursuant to Section 8 below shall not be credited toward the Minimum Mid-Term Replacement Amount, unless otherwise approved by the Executive Director. Within ninety (90) days after the Mid-Term Refurbishment Completion Date, TCM shall pay to City an amount equal to the positive shortfall, if any, between the Minimum Mid-Term Refurbishment Amount and the actual amount expended by TCM and its Concessionaires in connection with the design and construction of the Mid-Term Refurbishment.
7.7City Approval of Improvements. Prior to the construction of any improvements (including, without limitation, the TCM Initial Premises Improvements, the Concessionaire Initial Premises Improvements, the Initial Non-Premises Improvements, the Mid-Term Refurbishment and any Alterations), TCM shall comply with the “LAWA Tenant Improvement Approval Process” (said LAWA Tenant Improvement Approval Process as may be modified from time to time is referred to herein as the “Construction Approval Process”), including without limitation, the submission to City’s Commercial Development Group for approval all required plans and other information. Upon receipt of the Executive Director’s approval and any other applicable approvals, TCM shall cause the construction called for by the approved working drawings and specifications to be commenced and completed promptly. No substantial changes, additions, or alterations shall be made in said working drawings or specifications, or in the construction called for thereby, without first obtaining Executive Director’s approval in writing.
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7.7.1TCM shall keep (and shall require its Concessionaires to keep) the Premises and any improvements constructed thereon free and clear of liens for labor and material expended by or for TCM or on its behalf in accordance with Section 7.15 of this Agreement.
7.7.2TCM agrees to comply with the notification and review requirements covered in Part 77 of the Federal Aviation Administration Regulations in the event any future structure or building is planned for the Premises, or in the event of any planned modification or alteration of any present or future building or structure situated on the Premises.
7.7.3Prior to the commencement of any work, TCM shall, at its own cost and expense, obtain (and shall cause its Concessionaires to obtain) all other Permits and approvals required by applicable Laws including, but not limited to Los Angeles Department of Building and Safety, Los Angeles County Department of Health and OSHA. Executive Director’s approval of the plans, specifications and working drawings for the Initial Non-Premises Improvement, the TCM Initial Premises Improvements, Concessionaire Initial Premises Improvements or any other improvements or alterations of the Premises shall create no responsibility or liability on the part of City for their completeness, design sufficiency, or compliance with all Laws and other requirements of governmental agencies or authorities. Neither City nor any City Agents shall be liable for any damage, loss, or prejudice suffered or claimed by TCM, any TCM Party or any other person or entity on account of: (a) the approval or disapproval of any plans, contracts, bonds, contractors, sureties or matters; (b) the construction or performance of any work whether or not pursuant to approved plans; (c) the improvement of any portion of the Premises or alteration or modification to any portion of the Premises; or (d) the enforcement or failure to enforce any of the covenants, conditions and restrictions contained in this Agreement.
7.8Further Provisions Regarding Design and Construction. TCM shall comply with the following requirements in connection with any construction under this Agreement.
7.8.1Design and Engineering. TCM shall, at its own cost and expense, employ competent architects, engineers and interior designers. TCM warrants that all design and construction work and services performed by or on behalf of TCM shall conform to the highest professional standards pertinent to the respective trade or industry. All improvements shall be designed to industry standards appropriate for a best-in-class international airport facility. TCM shall comply with City’s Design and Construction Handbook, as in effect from time to time.
7.8.2Licensed Contractors; Warranty. All construction or work shall be performed in a good and workmanlike manner in accordance with good industry practice for the type of work in question by duly licensed contractors under the supervision of a competent architect or licensed structural engineer. TCM warrants that all materials and equipment furnished will be new and of good quality unless otherwise specified, and that all workmanship will be of good quality, free from faults and defects and in conformance with the design documents approved by the City of Los Angeles Department of Building and Safety, as applicable.
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7.9Alterations. TCM and its Concessionaires shall not make any improvements or alterations to any Premises (including any Unit therein) (“Alterations”) without first complying with City’s Construction Approval Process. Any unauthorized Alterations made by TCM or its Concessionaire to any Premises (including any Unit therein) shall be removed at TCM’s sole cost and expense and any damage to such Premises (including any Unit therein) shall be promptly repaired, and if not removed and repaired within thirty (30) days of demand from City, and should TCM fail to so remove such Alterations and restore such Premises (including any Unit therein), City may remove such Alterations and restore such Premises (including any Unit therein), at TCM’s sole cost and expense, and such cost, plus the Administrative Fee, shall be payable to City as Additional Rent within thirty (30) days of delivery of an invoice therefor.
7.10Building Codes. All Alterations, improvements, fixtures and equipment constructed or installed by TCM or its Concessionaires in or about the Premises, including the plans and specifications therefor, shall in all respects conform to and comply with the applicable Laws (including, without limitation, ordinances, building codes, rules and regulations of the City of Los Angeles and such other authorities as may have jurisdiction over the Premises or TCM’s or its Concessionaire’s operations therein), and City Policies (as defined in Section 16.23). If and to the extent that TCM’s or its Concessionaire’s activities or proposed Alterations trigger an obligation or requirement on the part of City to make changes to the Airport (including under the ADA), TCM shall indemnify, defend, and hold harmless City and City Agents from and against any Claims arising out of such activities or Alterations. The approval by Executive Director provided above shall not constitute a representation or warranty as to such conformity or compliance, but responsibility therefor shall at all times remain in TCM.
7.11Workers’ Compensation. Prior to commencement of any such construction, TCM shall first submit to City a certificate of insurance evidencing the fact that TCM (and any relevant TCM Party) maintains workers’ compensation and employers liability coverage in the amounts and form required by the Workers’ Compensation Act and insurance Laws of the State of California. Such certificate shall include a Waiver of Subrogation naming and for the benefit of the City of Los Angeles and City Agents. Such certificate shall contain the applicable policy number and the inclusive date for same, shall bear an original signature of an authorized representative of the insurance carrier and shall also provide thereon that the insurance shall not be subject to cancellation except after notice by registered mail to the City Attorney of the City of Los Angeles at least thirty (30) days prior to the date of cancellation.
7.12Improvement Payment and Performance Bond. In connection with the Initial Non-Premises Improvements, TCM Initial Premises Improvements, the Mid-Term Refurbishment and any other Alterations by TCM, TCM shall furnish, at its sole cost and expense, payment and performance bonds in the principal sum of the amount of the work of improvement proposed by TCM, or alternative security deposit for said amount acceptable to Executive Director. In connection with the Concessionaire Initial Premises Improvements, the Mid-Term Refurbishment and any other Alterations by Concessionaires, TCM shall cause its Concessionaires to furnish, at their respective sole cost and expense, payment and performance bonds in the principal sum of the amount of the work of improvement proposed by each such Concessionaire, or alternative security deposit for said amount acceptable to Executive Director. TCM shall comply with (and shall cause its Concessionaires to comply with) the provisions of California Civil Code Sections 3235 to 3242 or Section 3247 to 3252, as applicable to any such bond, by filing the original contract and any modifications thereto in the office of the Los Angeles County Recorder, together with the bond specified therein, and a conformed copy of such bond, filed for record as aforesaid, shall be furnished by TCM or its Concessionaires to City. If such work is being performed pursuant to a DIP Approval or a CIP Approval, TCM shall furnish such payment and performance bonds no later than the date set forth in the DIP Approval or the CIP Approval, as the case may be. If such work is not being performed pursuant to a DIP Approval or a CIP Approval or if no time is specified in the DIP Approval or the CIP Approval, such payment and performance bonds shall be furnished no later than ten (10) days prior to the commencement of such work. The payment and performance bonds shall be in substantially the same form as that of Exhibit F attached hereto (or such other form as may be reasonably prescribed from time to time by the City Attorney), be issued by a surety company satisfactory to Executive Director, and authorized and licensed to transact business in the State of California and be for the full amount stated above with the City of Los Angeles, Department of Airports, as obligee, and shall guarantee the full, faithful and satisfactory payment and performance by TCM or its Concessionaires, as the case may be, of their respective obligations to construct and install the aforementioned improvements, and shall guarantee the payment for all materials, provisions, supplies, and equipment used in, on, for, or about the performance of TCM’s (or its Concessionaires’) works of improvement or labor done thereon of any kind, and shall protect City from any liability, losses, or damages arising therefrom.
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7.13Telecommunications Facilities.
7.13.1TCM, its Concessionaires and their respective Telecommunications Service Providers (as defined herein) shall not install Telecommunication Facilities (as defined herein) in Common Areas, shared space, or other respective areas of the Airport, or in currently designated or future primary or secondary minimum-points-of-entry, without prior written approval of Executive Director and any approval required as part of City’s Construction Approval Process. All such Telecommunications Facilities and services shall comply with FCC licensing regulations, with City of Los Angeles building codes, and with all other applicable Laws. All work performed in connection with the installation of any Telecommunication Facilities shall comply with the provisions of this Agreement applicable to construction projects. City may require its contractors or personnel to observe such installation or servicing to assure compliance with this Agreement. In such event, TCM shall pay to City as Additional Rent hereunder, the cost or imputed cost of such observation and compliance monitoring. For purposes of this Agreement, “Telecommunication Facilities” shall mean and include the installation, operation, and provisioning of telecommunications circuits, conduit, cabling, antennas, equipment, infrastructure and service connections thereto; and “Telecommunication Service Providers” shall mean and include cable and equipment installation contractors, system operators, and any entity which provides telecommunication services, such as Sprint, Verizon, AT&T, government entities, or other tenants. Prior to any installation or servicing of any Telecommunication Facilities, TCM shall submit to City (with copies to LAWA Project Management Division and Manager of LAWA Information Technology Division at 1, World Way, Room B14, Los Angeles, CA 90045) for approval documentation of each Telecommunication Facility and the infrastructure proposed to be used (collectively, “Telecom Documentation”), which Telecom Documentation shall include, but not be limited to, plans and drawings with specific routing detail, conduit types and sizes, access junction boxes, cable descriptions (type, quantity, size) per route segment, telecommunication rooms and closets used, termination block labeling, and cable pair assignments for each cable segment, and a schedule with the times and locations that require access in connection with such installation or servicing.
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7.13.2TCM shall not allow the use of, and shall not sell, lease, sublet, or trade, Telecommunication Facilities or services to other users or operators at the Airport without prior written approval of Executive Director. TCM shall not use, and shall not purchase, lease, sublet or trade for, Telecommunication Facilities or services from other users or operators at the Airport without prior written approval of Executive Director.
7.13.3TCM agrees that the Telecommunications Facilities, and the installation, maintenance and operation thereof shall in no way interfere with Airport operations, or the operation of Telecommunications Facilities of City or any other tenants or occupants of the Airport. If such interference shall occur, City shall give TCM written notice thereof and TCM shall correct the same within twenty-four (24) hours of receipt of such notice. City reserves the right to disconnect TCM’s Telecommunications Facilities if TCM fails to correct such interference within twenty-four (24) hours after such notice.
7.13.4TCM shall protect, defend, indemnify and hold harmless City and City Agents from and against Claims incurred by or asserted against City or any City Agent arising out of TCM’s installation, maintenance, replacement, use or removal of TCM’s Telecommunications Facilities.
7.13.5TCM shall remove any Telecommunications Facilities installed by TCM at TCM’s sole cost and expense upon the expiration or early termination of this Agreement.
7.14Deliveries upon Completion. Within one hundred eighty (180) days of completion of the Initial Premises Improvements, the Initial Non-Premises Improvements, any Mid-Term Refurbishment and any other Alterations, TCM shall (or cause its Concessionaires to) furnish to City, at no charge: (a) a certificate from the architect(s) certifying that such improvements have been constructed in accordance with the approved plans and specifications and in strict compliance with all Laws; (b) five (5) complete sets of “record” drawings, and one complete set in Computer Aided Design (CAD) format which complies with the then current LAWA CAD standards (these drawings must include any applicable permit numbers, the structural and other improvements installed by TCM or its Concessionaires in the Premises, and the location and details of installation of all equipment, utility lines, heating, ventilating, and air-conditioning ducts and related matters); (c) duplicated receipted invoices on all materials and labor costs incurred; and (d) executed unconditional mechanics’ lien releases from those parties performing labor, materials or supplies in connection with all such improvements, which releases shall comply with the appropriate provisions, as reasonably determined by City, of the California Civil Code. TCM shall keep such as-built drawings current by updating the same in order to reflect thereon any changes or modifications which may be made to such improvements. Within ten (10) days after completion of any such improvements, TCM shall cause a Notice of Completion to be recorded in the office of the Los Angeles County Recorder in accordance with Section 3093 of the Civil Code of the State of California or any successor statute, and shall furnish a copy thereof to City upon such recordation. If TCM fails to do so, City may execute and file the same on behalf of TCM as TCM’s agent for such purpose, at TCM’s sole cost and expense.
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7.15No Liens. TCM shall pay (and shall cause its Concessionaires to pay) when due all claims for labor or materials furnished or alleged to have been furnished to or for TCM at, on, about, or for use in the Premises, the Facility(ies) or any portion thereof. Subject to the right to bond over any such lien as set forth in this Section 7.15, TCM shall keep the Premises, the Facility(ies) and the Airport, and any interest therein, free and clear of all mechanics’ liens and all other liens from any work undertaken by or on behalf of TCM or any TCM Party. TCM shall give City immediate written notice of any lien filed against the Premises, the Airport or any interest therein related to or arising from work performed by or for TCM or any TCM Party. Additionally, TCM shall keep any City-owned improvements whether on the Premises or out-side of the Premises free and clear of any liens or other encumbrances from any work undertaken by or on behalf of TCM or any TCM Party. By way of specification without limitation, TCM shall keep the Premises free from any liens arising out of any work performed, materials furnished, or obligations incurred by or for TCM or any TCM Party, and TCM shall indemnify, defend, protect, and hold the Premises, the Airport, City and City Agents harmless against any liens and encumbrances and all Claims arising from any work performed by or on behalf of TCM or any TCM Party and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof against TCM, City, the Airport, or the Premises. In the event that TCM does not, within thirty (30) calendar days following the imposition of any such lien, cause such lien to be released of record by payment or posting of a bond in form and amount satisfactory to Executive Director in its good faith business judgment, City shall have in addition to all other remedies provided herein and by law, the right, but not the obligation to cause, upon twenty (20) business days prior written notice to TCM, the same to be released by such means as it shall deem proper, including payment in satisfaction of any Claim giving rise to such lien. All such sums paid by City and all expenses incurred by it in connection therewith (including, without limitation, attorneys’ fees (including, without limitation, the imputed fees of City Attorneys)), plus the Administrative Fee, shall be payable to City by TCM as Additional Rent within thirty (30) days after written demand therefor. TCM shall give City not less than ten (10) days’ prior written notice of the commencement of the Initial Premises Improvements or any other initial or subsequent improvements in or about the Premises, and City shall have the right to post notices of non-responsibility in or about the Premises as provided by law. In addition, City shall have the right to require that TCM pay City’s attorneys’ fees and disbursements (including, without limitation, the imputed fees of City Attorneys), court costs and other costs in defending any such action if City is named as a party to any such action, the lien encumbers any portion or interest in the Airport or if City elects to defend any such action or lien. Nothing in this Section shall be construed to place any obligations upon TCM with respect to liens, loans, or mortgages placed upon the Premises by City, its Department of Airports, its Board, City officers, agents, or employees.
7.16Ownership of Improvements. During the Primary Term, TCM shall have rights to the ownership of the TCM Initial Premises Improvements installed on the Premises pursuant to this Agreement; provided, however, if TCM’s rights with respect to the Premises (or any portion thereof) are terminated for any reason, subject to the provisions of Article XIV below, City shall have all rights to the ownership of the TCM Initial Premises Improvements and any other improvements within the Premises (or such terminated portion of the Premises), and title to all such improvements shall automatically vest in City as of the date of such termination. TCM further acknowledges that, in connection with any such termination, City shall have all rights to the ownership of the Concessionaire Initial Premises Improvements and any other improvements within a Unit with respect to any Unit Concession Agreement that is also being terminated.
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VIIIMAINTENANCE AND REPAIR.
8.1Maintenance and Repair. TCM acknowledges and agrees that, except to the extent expressly set forth to the contrary in this Section 8, City shall have no duty to maintain, repair or replace the Premises (or any part thereof including any Unit there), or the improvements located therein and thereon (whether or not such portion of the Premises requiring repairs or replacements, or the means of repairing or replacing the same, are reasonably or readily accessible to TCM, and whether or not the need for such repairs or replacements occurs as a result of TCM’s or its Concessionaires’ use, any prior use, or the age of such portion of the Premises). TCM shall and shall require its Concessionaires, at all times and at their respective expense, to keep and maintain the Premises, including, without limitation, the exterior façade of each Unit within the Premises separating such Unit from the Common Areas of the Facility (including the external face thereof, all windows, doors and display areas, and all finishes thereon), all mechanical room equipment such as, but not limited to, heat exchangers, fans, controls and electric panels, and all of the structural and other improvements installed within the Premises (and at each Unit therein) together with all fixtures, equipment and personal property therein, in good repair and in a clean and orderly condition and appearance and shall keep the areas immediately adjacent to the Premises (including the exits and entrances of each Unit within the Premises) clean and orderly and free of obstructions. TCM shall keep a record of all maintenance and repair actions involving a cost of Ten Thousand Dollars ($10,000) or more that are undertaken with respect to the Premises (including each Unit therein) during the term of this Agreement, including the nature of such matter requiring maintenance and repair, the date such matter was first observed, the maintenance and repair action undertaken in response, the date such maintenance and repair action was undertaken, the cost of such maintenance and repair action, any receipts and invoices or contracts for costs and expenses incurred in connection with such maintenance and repair action, evidence of payments made in connection therewith, and any warranties or guarantees obtained in connection with the performance of such maintenance and repair action, and pictures of the matter requiring maintenance and repair and the completed maintenance or repair, and any other information relating thereto that Executive Director may request from time to time (collectively, “TCM’s Maintenance Records”). Upon any request of Executive Director and annually, in connection with the annual update of the Business and Operations Plan, TCM shall deliver to City an annual maintenance report with a copy of TCM’s Maintenance Records for the year just ended.
8.2Cleaning and Routine Upkeep. TCM, at its sole cost and expense, shall have primary responsibility for all maintenance, cleaning and routine upkeep of any TCM Common Areas within the Premises (with TCM being permitted to charge the Concessionaires a fee (without administrative mark up or profit) for such maintenance, cleaning and routine upkeep) and shall keep such TCM Common Areas within the Premises in a good and clean condition at all times. Notwithstanding the foregoing, City agrees to reimburse TCM on a monthly basis for the actual cost (without administrative mark up or profit) of the routine cleaning and upkeep of any children’s play area(s) located within the TCM Common Areas. The manner and level of service with respect to such cleaning and upkeep of the children’s play area(s) shall be subject to the prior written approval of the Executive Director and set forth in the Business and Operations Plan. TCM shall require the Concessionaires to be responsible for the cleaning, maintenance, and routine upkeep of their respective Units and to keep their respective Units in good condition at all times.
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8.3Maintenance of Plumbing. TCM shall (and shall require its Concessionaires to) be responsible for the maintenance, repair and replacement of all plumbing, piping and drains within the Premises (including each Unit therein). TCM is responsible for (and shall require its Concessionaires to be responsible for) all material that is deposited in the plumbing system from each Unit and for cleaning the grease traps within any Unit. TCM is responsible for (and shall require its Concessionaires to be responsible for) the maintenance, repair and replacement of all sewer lines from the Premises (including each Unit therein) to the point of connect. TCM is responsible for (and shall require its Concessionaires to be responsible for) the repair and maintenance of all domestic water lines, hot and cold, from the point of connection of the Department of Airports water meter throughout the Premises (including each Unit therein). If TCM (or its Concessionaire) fails to maintain the plumbing, piping and drain system or places liquid, grease, debris, and other materials that contribute to stoppage or damage to the Airport’s plumbing, and City elects to make repairs thereto, TCM will be billed for the cost thereof, plus the Administrative Fee, to be paid by TCM to City within thirty (30) days of written demand. TCM shall be entitled to charge its Concessionaires for the costs of such maintenance, repair and replacement as well as any costs for stoppage or damage to the Airport’s plumbing billed to TCM by City.
8.4City May Repair. In the event TCM fails to accomplish (or to require its Concessionaires to accomplish) any such nonstructural repairs, replacements, rebuilding, redecorating or painting required hereunder (including any preventative maintenance or emergency repairs) within a period of twenty (20) days after written notice from Executive Director so to do, or fails to diligently repair, replace, rebuild, redecorate or paint all portions of the Premises (including each Unit therein) required to be repaired, replaced, rebuilt, redecorated or painted by TCM (or it Concessionaires) pursuant to its approved maintenance schedule, City shall have the right (but not the obligation), at its option, and in addition to all other remedies which may be available to it, to repair, replace, rebuild, redecorate or paint any such portion of the Premises (including any Unit therein) included in said notice, and the cost thereof, plus the Administrative Fee, shall be paid by TCM to City as Additional Rent within thirty (30) days of written demand. Notwithstanding anything to the contrary contained in this Agreement, the performance of such maintenance, repair or replacement by City on TCM’s behalf shall in no event be construed as a waiver of TCM’s maintenance, repair and replacement obligations under this Agreement.
8.5Right to Enter Premises. City shall have the right to enter upon the Premises (including any Unit therein) at all reasonable times to make such repairs, alterations and replacements as may, in the opinion of Executive Director, be deemed necessary or advisable and, from time to time, to construct or install over, in, under or through the Premises (including any Unit therein) new lines, pipes, mains, wires, conduits and equipment (regardless of whether such construction by City relates to operations within the Premises or outside of the Premises); provided, however, that City shall use commercially reasonable efforts to minimize the interference caused by such repair, alteration, replacement or construction with the use of the Premises by TCM or its Concessionaires; and provided, further, that nothing herein shall be construed as relieving TCM of any obligation imposed upon it herein to maintain the Premises (including the Units therein) and the improvements and utility facilities therein. City shall have the right to enter the Premises (including any Unit therein) at any time to maintain or repair emergency systems when loss of life or damage to property may potentially result. Notwithstanding anything to the contrary contained in this Section 8.5, if during the performance of such work by City, any Unit or related TCM Common Area necessary for the operation of a Unit is required to be closed for two (2) or more complete and consecutive days (unless such closure is the result of TCM’s failure to perform its obligations under this Agreement), then the MAG allocated for any such Unit shall be equitably abated for the period commencing on the 3rd day following the date that any such Unit is so forced to close and shall continue until the interference causing such closure of any such Unit has ceased.
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8.6Provision of Utilities. Throughout the term of this Agreement, to the extent not provided by City at City’s election, TCM shall, at its sole cost and expense, take whatever action is required to obtain all utility service necessary for the operation of the Premises (including all Units therein), and TCM shall make the necessary arrangements with all utility providers to bring all required water, sanitary sewer, telephone, electricity, gas and any and all other utilities lines to and within the Premises (and the Units therein) in accordance plans and specifications approved by City. City shall have the right, but not the obligation or responsibility, for the use of TCM or for the use of others at Airport, to maintain existing and future utility systems or portions thereof on the Premises (including any Unit therein), including, without limitation, systems for the supply of heat and electricity and for the furnishing of fire alarm, fire protection, sprinkler, air conditioning, telephone, telegraph, teleregister and intercommunication services, including lines, pipes, mains, wires, conduits and equipment connected without appurtenant to all such systems. TCM shall reimburse City for its pro-rata share of costs of such maintenance. Within each Facility, TCM’s pro-rata share shall be based on the ratio of the square footage of the Premises in the Facility to the square footage of all premises in the Facility using said utilities, or on some other reasonable and appropriate methodology or basis as determined by the Executive Director. Notwithstanding any other provision of this Agreement, City shall not be liable or responsible for any unavailability, failure, stoppage, interruption or shortage of any utilities or other services, however or by whom caused, except for the provision of MAG abatement as provided in the following sentence. Notwithstanding anything to the contrary contained in this Section 8.6, if any utility to the Premises or any portion thereof (including any Units located therein) is supplied by or through City, and due to City’s sole negligence or intentional act, such utility to the Premises or any portion thereof (including any Units located therein) is interrupted to the extent that any Unit or related TCM Common Area necessary for the operation of a Unit is required to be closed for two (2) or more complete and consecutive days, then the MAG allocated for any such Unit shall be abated for the period commencing on the 3rd day following the date that any such Unit is forced to close and shall continue until the applicable utilities causing such forced closure are restored to the affected portion of the Premises. TCM shall have the right to pass through such costs and expenses on a pro-rata basis to its Concessionaires.
8.7Pest Control. TCM shall be solely responsible for a pest-free environment within the TCM Common Areas, TCM Storage Premises and Units located within the Premises by maintaining its own pest control services, in accordance with the most modern and effective control procedures. All materials used in pest control shall conform to applicable Laws. All controlled substances utilized shall be used with all precautions to obviate the possibility of accidents to humans, domestic animals and pets. Whenever City deems that pest control services must be provided to a building or area that includes TCM’s Premises under this Agreement, TCM shall pay for the costs of services provided for the Premises under this Agreement. TCM shall have the right to pass through such costs and expenses on a pro-rata basis to its Concessionaires.
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8.8Evidence of Payment. In any suit, action or proceeding of any kind between the parties hereto, any receipt showing the payment of any sum(s) by City for any work done or material furnished shall be prima facie evidence against TCM that the amount of such payment was necessary and reasonable. Should Executive Director elect to use City operating and maintenance staff in making any repairs, replacements or alterations and to charge TCM with the cost of same, any timesheet of any employee of City showing hours of labor or work allocated to any such repair, replacement or alteration, or any stock requisition of City showing the issuance of materials for use in the performance thereof, shall be prima facie evidence against TCM that the amount of such charge was necessary and reasonable. Notwithstanding the foregoing, TCM shall have the right to dispute the reasonableness of any such charge and in the event of any such dispute, the parties shall negotiate in good faith to seek a mutually satisfactory resolution within twenty (20) business days.
8.9Prevailing Wage. Maintenance work performed on City’s property will require payment of prevailing wages, if applicable. TCM is obligated to make the determination of whether the payment of prevailing wages is applicable, and TCM shall be bound by and comply with applicable provisions of the California Labor Code and Federal, State, and local laws related to labor. TCM shall indemnify, defend and pay or reimburse City for any damages, penalties or fines (including, but not limited to, reasonable attorney’s fees and costs of litigation) that City incurs, or pays, as a result of noncompliance with applicable prevailing wage laws in connection with the maintenance work performed by TCM or its Concessionaires in connection with this Agreement.
IXTERMINATION FOR CONVENIENCE; TERMINATION PAYMENTS;
QUALIFIED INVESTMENTS.
9.1Termination for Convenience. In the event that the Executive Director, in his or her sole discretion, at any time determines that efficient or convenient Airport operations require the use of any portion of the Premises, City shall have the absolute right to terminate this Agreement with respect to such portion of the Premises (a “Termination for Convenience”), upon not less than one hundred eighty (180) days’ prior written notice to TCM (a “Convenience Termination Notice”). In connection with any Termination for Convenience, City (upon the determination of the Executive Director) shall have the right to terminate any Unit Concession Agreement within the portion of the Premises so terminated by City. The Convenience Termination Notice shall set forth a description of the portion of the Premises that is the subject of the Termination for Convenience (the “Terminated Premises”) and shall set forth the effective date of such termination (“Convenience Termination Date”). On or before the Convenience Termination Date, TCM shall, with respect to the Terminated Premises, perform its removal and surrender obligations set forth in this Agreement (including, without limitation, TCM’s obligations set forth in Section 2.4 above). In the event of a Termination for Convenience under this Section 9.1, City shall pay to TCM an amount equal to the Convenience Termination Payment (as defined in Section 9.2.1 below) within thirty (30) days following the Convenience Termination Compliance Date (as defined in Section 9.2.2 below). TCM specifically acknowledges that this Termination for Convenience provision is a material inducement to City to allow TCM to enter into this Agreement. In the event of a Termination for Convenience, the MAG shall be equitably adjusted to reflect the loss of the square footage in the Units within the Terminated Premises, such adjustment to be based on the then current Minimum Per Square Foot MAG Amount as of the Convenience Termination Date.
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9.2Termination Payment. In the event of a Termination for Convenience under Section 9.1 above, TCM shall receive from City a payment in respect of such termination as set forth in Section 9.2.1 below; provided, however, City shall have the right to offset against the amount of such termination payment any amounts which may then be due and payable by TCM to City under this Agreement; and provided, further, that City shall have the right to withhold from such termination payment as security for the performance of any other uncured Default by TCM (i) an amount equal to the estimated damage or loss to City as the result of such uncured Default as reasonably estimated by the Executive Director or (ii) if the damage or loss to City as the result of such uncured Default cannot be reasonably estimated in monetary terms, an amount equal to ten percent (10%) of such termination payment. In the event of an Early Termination under Section 2.3 above, TCM shall receive from City a payment in respect of such termination as set forth in Section 9.2.3 below; provided, however, City shall have the right to offset against the amount of such termination payment any amounts which may then be due and payable by TCM to City under this Agreement; and provided, further, that City shall have the right to withhold from such termination payment as security for the performance of any other uncured Default by TCM (i) an amount equal to the estimated damage or loss to City as the result of such uncured Default as reasonably estimated by the Executive Director or (ii) if the damage or loss to City as the result of such uncured Default cannot be reasonably estimated in monetary terms, an amount equal to ten percent (10%) of such termination payment. TCM acknowledges that any amounts received by TCM pursuant to either Section 9.2.1(d) below or Section 9.2.3(d) below shall be paid by TCM to the applicable Concessionaire within the time provided in Section 9.2.5 below; provided, however, TCM shall be entitled to withhold remittance to any Concessionaire at any time such Concessionaire is in default under the Unit Concession Agreement until such default has been cured to the satisfaction of TCM as determined in its reasonable discretion. In addition, TCM shall have the right to offset any amounts which may be due and payable by any Concessionaire to TCM from the amounts otherwise payable to any Concessionaire by TCM under this Section 9.2 (which may include retaining the entire amount should the Concessionaire owe TCM in excess of the amount to be paid to any such Concessionaire pursuant to this Section 9.2. TCM’s right to any such termination payment shall be conditioned upon TCM’s (and any applicable Concessionaire’s) execution and delivery to City of a general release of claims by such party, which release shall be in a form satisfactory to City (the “Termination Release”).
9.2.1Termination Payment — Termination for Convenience under Section 9.1. The term “Convenience Termination Payment” shall mean an amount equal to the sum of the following amounts:
(a)That portion of TCM’s Qualified Investments with respect to TCM’s Initial Premises Improvements, Mid-Term Refurbishment and Other Alterations (as defined below) within the Terminated Premises that have not been amortized as of the Convenience Termination Date, with the amortization of each such Qualified Investment being calculated on a fully amortized basis over an amortization period beginning on the respective dates that such TCM Initial Premises Improvements, Mid-Term Refurbishment or Other Alterations were placed in service and ending on the Expiration Date, using an interest rate of nine percent (9%) per annum (herein, “TCM’s Section 9.2.1 (a) Un-Amortized Qualified Investment Amount”), provided, however, that TCM’s Section 9.2.1(a) Un-Amortized Qualified Investment Amount shall be reduced by that portion of the TCM Improvement Allowance Offset (as defined in Section 9.2.6 below) that relates to the Terminated Premises;
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9.2.2Convenience Termination Compliance Date. The term “Convenience Termination Compliance Date” shall mean the date that all of the following have occurred: (i) TCM and any Concessionaires whose Unit Concession Agreements have been terminated as the result of such termination have vacated and surrendered the Terminated Premises in accordance with the surrender and removal obligations under this Agreement; (ii) if required by the Executive Director in his or her sole discretion, City has received the Termination Release signed by TCM and any terminated Concessionaires (provided, however, that payment to TCM of TCM’s share of any Convenience Termination Payment shall not be withheld or delayed solely as a result of any such Concessionaire’s failure to provide such Concessionaire’s Termination Release); and (iii) the Convenience Termination Date has occurred.
9.2.3Termination Payment -- Early Termination under Section 2.3. The term “Early Termination Payment” shall mean an amount equal to the sum of the following amounts:
(a)That portion of TCM’s Qualified Investments with respect to TCM’s Initial Premises Improvements, Mid-Term Refurbishment (if any) and Other Alterations that have not been depreciated as of the Early Termination Expiration Date, with the depreciation of each such Qualified Investment being calculated over a depreciation period beginning on the respective dates that such TCM Initial Premises Improvements, Mid-Term Refurbishment or Other Alterations were placed in service and ending on the Expiration Date, and with such depreciation calculated on a straight-line basis with no residual value (herein, “TCM’s Section 9.2.3(a) Un-Depreciated Qualified Investment Amount”), provided, however, that TCM’s Section 9.2.3(a) Un-Depreciated Qualified Investment Amount shall be reduced by the TCM Improvement Allowance Offset;
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9.2.4Early Termination Compliance Date. The term “Early Termination Compliance Date” shall mean the date that all of the following have occurred: (i) TCM and any Concessionaires whose Unit Concession Agreements have been terminated as the result of such termination have vacated and surrendered the Premises in accordance with the surrender and removal obligations under this Agreement; (ii) if required by the Executive Director in his or her sole discretion, City has received the Termination Release signed by TCM and any terminated Concessionaires (provided that payment to TCM of TCM’s share of any Early Termination Payment shall not be withheld or delayed solely as a result of any such Concessionaire’s failure to provide such Concessionaire’s Termination Release); and (iii) the Early Termination Expiration Date has occurred.
9.2.5TCM’s Obligation to Pay Concessionaires. Subject to its rights to withhold or offset payments to Concessionaires in accordance with Section 9.2, TCM agrees that, within thirty (30) days following receipt of any Early Termination Payment or Convenience Termination Payment, TCM shall pay to its Concessionaires that portion of such payments that are related to such Concessionaires’ un-amortized Qualified Investments.
9.2.6TCM Improvement Allowance Offset. The term “TCM Improvement Allowance Offset” shall mean the aggregate amount by which the Base Rent payable by TCM has been reduced over the term of this Agreement (i.e. through the Convenience Termination Date or the Early Termination Date, as applicable) as a result of the application of the TCM Improvement Allowance under Section 4.1.3 above.
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9.3Qualified Investments Defined. Subject to the limitation and conditions set forth in Section 9.4 below, the term “Qualified Investments” shall mean the following amounts described below in this Section 9.3 (each, individually, a “Qualified Investment”):
9.4Additional Conditions Applicable to Qualified Investments. With respect to any expenditure described in Section 9.3 above, such expenditure must satisfy the following additional requirements and conditions in order to be classified as a Qualified Investment:
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(d)Other Limitations on Qualified Investments. Amounts eligible as Qualified Investments shall not include any interest or financing costs, and architectural and design costs shall not exceed twenty percent (20%) of the cost of the related improvements. Costs incurred for personal property not permanently installed on the Premises shall not be eligible as Qualified Investments.
9.5No Other Compensation. TCM acknowledges and agrees that, except for the Early Termination Payment in connection with an Early Termination and the Convenience Termination Payment in connection with a Termination for Convenience, TCM and its Concessionaires have absolutely no right to any payment, claim, damage, offset or other compensation in connection with the termination of this Agreement as to all or any part of the Premises. Without limiting the generality of the foregoing, no payment or other compensation shall be payable to TCM in connection with the termination of this Agreement as a result of TCM’s Default.
XAIRPORT CONSTRUCTION; AIRPORT OPERATIONS.
10.1Airport Construction; Airport Operations. City reserves the right to further develop or improve the landing area of Airport or any other portion of the Airport, as it sees fit, regardless of the desires or view of TCM, and without interference or hindrance by TCM. TCM recognizes and agrees that City, from time to time during the term of this Agreement, may construct, cause to be constructed, or permit construction, of City-approved improvements of various sizes and complexity. TCM further recognizes that such construction and other security related restrictions may restrict access to and may interfere with the quiet enjoyment of the Premises and the amount of revenue generated from the Premises. TCM agrees that City shall not be liable for losses or damages arising from disruptions caused by City-approved construction or other restrictions affecting access to the Premises, and hereby waives any Claims against City and City Agents arising therefrom. Notwithstanding the foregoing, in the event that access to any Unit or to any portion of a related TCM Common Area is so restricted or materially impaired to the extent that any Unit or related TCM Common Area necessary for the operation of a Unit is required to be closed for two (2) or more complete and consecutive days, then the MAG allocated for any such Unit shall be equitably abated for the period commencing on the 3rd day following the date that any such Unit is forced to close and shall continue until the date access to the Unit or related TCM Common Area is reopened so that concession operations may be recommenced in any such Unit. City shall endeavor to use commercially reasonable efforts to keep TCM informed of construction plans that may materially and adversely impact the operations at the Premises. There is also hereby reserved to City, its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Premises. This public right of flight shall include the right to cause in said airspace any noise inherent in the operation of any aircraft used for navigation or flight through the said airspace or landing at, taking off from, or operating at the Airport. TCM agrees not to make any claim or institute legal action against City under any theory of recovery for any interference with TCM’s use and enjoyment of the Premises which may result from noise emanating from the operation of aircraft to, from, or upon the Airport, and TCM hereby waives any Claims against City and City Agents arising therefrom.
10.2No Right to Temporary Premises. Temporary disruptions to TCM’s (or its Concessionaires) operations, including restricted access to Facility during any construction or security alert, shall not entitle TCM (or its Concessionaires) to a temporary location elsewhere or any other compensation (except for the abatement of MAG as provided in Section 10.1 above).
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XITERMINATION/CANCELLATION.
11.1Defaults. The occurrence of any one of the following events shall constitute a default on the part of TCM (“Default”):
11.1.1Abandonment. The abandonment of the Premises within the meaning of California Civil Code Section 1951.3;
11.1.2Failure to Pay Rent. Failure to pay any installment of Rent or any other monies due and payable hereunder, said failure continuing for a period of ten (10) business days after the same is due;
11.1.3Assignment for Creditors. A general assignment for the benefit of creditors by TCM or by Westfield America, Inc., a Missouri corporation (herein, “Guarantor”), or by any other guarantor or surety of TCM’s obligations hereunder;
11.1.4Filing of Bankruptcy Petition. The filing of a voluntary petition in bankruptcy by TCM or its Guarantor, the filing by TCM or its Guarantor of a voluntary petition for an arrangement, the filing by or against TCM or its Guarantor of a petition, voluntary or involuntary, for reorganization, or the filing of an involuntary petition by the creditors of TCM or its Guarantor, said involuntary petition remaining undischarged for a period of one hundred eighty (180) days;
11.1.5Attachment. Receivership, attachment, or other judicial seizure of substantially all of TCM’s assets at the Premises, such attachment or other seizure remaining undismissed or undischarged for a period of ninety (90) days after the levy thereof;
11.1.6Death; Dissolution. Death or disability of TCM or its Guarantor, if TCM or such Guarantor is a natural person, or the failure by TCM or its Guarantor to maintain its legal existence, if TCM or such Guarantor is a corporation, partnership, limited liability company, trust or other legal entity;
11.1.7Failure to Deliver Ancillary Documents. Failure of TCM to execute and deliver to City any estoppel certificate, subordination agreement, report (including, without limitation, reports required under Section 4.7), financial statement or other document required under this Agreement within the time periods and in the manner provided in this Agreement, where such failure remains uncured for a period of five (5) business days following written notice by City to TCM; 11.1.11Other Defaults.
11.1.8Incomplete Records. TCM fails to maintain adequate books and records and accounts reflecting its business as required hereunder (including without limitation, books and records and information regarding TCM Revenues, and the costs of construction for the Initial Non-Premises Improvements, the TCM Initial Premises Improvements, the Concessionaire Initial Premises Improvements or the Mid-Term Refurbishment);
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11.1.9Transfers. An assignment or sublease, or attempted assignment or sublease, of this Agreement or any other Transfer of TCM’s interest under this Agreement, in whole or in part, by TCM contrary to the provision of Section 14 without the prior written consent of City as required hereunder;
11.1.10Faithful Performance Guarantee. Failure of TCM to provide and maintain the Faithful Performance Guarantee as required under this Agreement for a period of ten (10) business days after receipt of written notice from City of such failure;
A default under any other agreement with the City of Los Angeles Department of Airports beyond any applicable notice and cure period under such agreement;
11.1.12General Non-Monetary Defaults. Failure in the performance of any of TCM’s covenants, agreements or obligations hereunder (except those failures specified as events of Default in Sections 11.1.1, 11.1.2, 11.1.4, 11.1.5, 11.1.7, 11.1.10, 11.1.13, 11.1.15, 11.1.16 herein or any other subsections of this Section 11, which shall be governed by the notice and cure periods set forth in such other subsections), which failure continues for thirty (30) days after written notice thereof from City to TCM, provided that, if TCM has commenced such cure within such thirty (30) day period, and has exercised reasonable diligence to cure such failure and such failure cannot be cured within such thirty (30) day period despite reasonable diligence, TCM shall not be in Default under this Section 11.1.12 so long as TCM thereafter diligently and continuously prosecutes the cure without interruption to completion and actually completes such cure within one hundred twenty (120) days after the giving of the aforesaid written notice to the extent such cure can reasonably be completed within such one hundred twenty (120) day period;
11.1.13Chronic Delinquency. Chronic delinquency by TCM in the payment of Rent, or any other periodic payments required to be paid by TCM under this Agreement. “Chronic Delinquency” means failure by TCM to pay Rent, or any other payments required to be paid by TCM under this Agreement within seven (7) days after the date due, and which occurs three (3) or more times during any period of twelve (12) consecutive months;
11.1.14Termination of Insurance. Any insurance required to be maintained by TCM pursuant to this Agreement shall be canceled or terminated or shall expire or be reduced or materially changed, except as permitted in this Agreement, and TCM fails to obtain replacement insurance within two (2) business days after receipt of written notice from City of the failure to carry the proper insurance coverage required of TCM hereunder; 11.1.18False Representations.
11.1.15Liens. Any failure by TCM to discharge any lien or encumbrance placed on the Premises, the Airport or any part thereof in violation of this Agreement within thirty (30) days after the date that TCM has received actual notice that such lien or encumbrance is filed or recorded against the Premises, the Airport or any part thereof;
11.1.16Revocation of Licenses. An act occurs which results in the suspension or revocation of the rights, powers, licenses, permits and authorities necessary for the conduct and operation of the business of TCM authorized herein for a period of more than sixty (60) days;
11.1.17Hazardous Materials. Any failure by TCM to promptly remove, abate or remedy any Hazardous Materials located in, on or about the Premises or the Airport in connection with any failure by TCM to comply with TCM’s obligations under Section 15 to the extent required by any applicable Hazardous Materials Laws; and
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Any representation of TCM herein, in the TCM Proposal provided by TCM in connection with the RPF (the “TCM Proposal”) or in any financial statement or other materials provided by TCM or any guarantor of TCM’s obligations under this Agreement shall prove to be untrue or inaccurate in any material respect, or any such financial statements or other materials shall have omitted any material fact.
TCM agrees that any notice given by City pursuant to this Section 11 shall satisfy the requirements for notice under California Code of Civil Procedure Section 1161, and City shall not be required to give any additional notice in order to be entitled to commence an unlawful detainer proceeding.
11.2City’s Remedies.
11.2.1Termination. In the event of any Default by TCM and the failure of TCM to cure the same during any applicable notice and cure periods as provided in this Agreement, then in addition to any other remedies available to City at law or in equity and under this Agreement, City may terminate this Agreement immediately and all rights of TCM hereunder by giving written notice to TCM of such intention to terminate. If City shall elect to so terminate this Agreement, then City may recover from TCM:
6.at City’s election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable Laws.
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As used in subsections (1) and (2) above, the “worth at the time of award” is computed by allowing interest at an annual rate equal to seven and one-half percent (7.5%) per annum or the maximum rate permitted by law, whichever is less. As used in subsection (3) above, the “worth at the time of award” is computed by discounting such amount at the discount rate of Federal Reserve Bank of San Francisco at the time of award, plus one percent (1%).
TCM hereby waives for TCM and for all those claiming under TCM all right now or hereafter existing to redeem by order or judgment of any court or by any legal process or writ, TCM’s right of occupancy of the Premises after any termination of this Agreement, specifically, TCM waives redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 and 1179, or under any other pertinent present or future Laws, in the event TCM is lawfully evicted or City takes lawful possession of the Premises by reason of any Default of TCM hereunder.
11.2.2Continuation of Agreement. In the event of any Default by TCM, then in addition to any other remedies available to City at law or in equity and under this Agreement, City shall have the remedy described in California Civil Code Section 1951.4, and the following provision from such Civil Code Section is hereby repeated: “The Lessor has the remedy described in California Civil Code Section 1951.4 (lessor may continue lease in effect after lessee’s breach and abandonment and recover rent as it becomes due, if Lessee has right to sublet or assign, subject only to reasonable limitations).” In addition, City shall not be liable in any way whatsoever for its failure or refusal to relet the Premises. For purposes of this Section 11.2.2, the following acts by City will not constitute the termination of TCM’s right to possession of the Premises:
Even if TCM has abandoned the Premises, this Agreement shall continue in effect for so long as City does not terminate TCM’s right to possession, and City may enforce all its rights and remedies under this Agreement, including, without limitation, the right to recover rent as it becomes due. Any such payments due City shall be made upon demand therefor from time to time and TCM agrees that City may file suit to recover any sums falling due from time to time. Notwithstanding the exercise by City of its right under this Section to continue the Agreement without termination, City may do so without prejudice to its right at any time thereafter to terminate this Agreement in accordance with the other provisions contained in this Section.
11.2.3Re-entry. In the event of any Default by TCM, City shall also have the right, with or without terminating this Agreement, in compliance with applicable law, to re-enter the Premises, by force if necessary, and remove all persons and property from the Premises; such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of TCM.
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11.2.4Reletting. In the event that City shall elect to re-enter as provided in Section 11.2.3 or shall take possession of the Premises pursuant to legal proceeding or pursuant to any notice provided by law, then if City does not elect to terminate this Agreement as provided in Section 11.2.1, City may from time to time, without terminating this Agreement, relet the Premises or any part thereof for such term or terms and at such rental or rentals and upon such other terms and conditions as City in its sole discretion may deem advisable with the right to make alterations and repairs to the Premises in City’s sole discretion. In the event that City shall elect to so relet, then rentals received by City from such reletting shall be applied in the following order: (a) to reasonable attorneys’ fees incurred by City as a result of a Default and costs in the event suit is filed by City to enforce such remedies; (b) to the payment of any indebtedness other than Rent due hereunder from TCM to City; (c) to the payment of any costs of such reletting; (d) to the payment of the costs of any alterations and repairs to the Premises; (e) to the payment of Rent due and unpaid hereunder; and (f) the residue, if any, shall be held by City and applied in payment of future Rent and other sums payable by TCM hereunder as the same may become due and payable hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of Rent hereunder, be less than the Rent payable during the month by TCM hereunder, then TCM shall pay such deficiency to City. Such deficiency shall be calculated and paid monthly. TCM shall also pay to City, as soon as ascertained, any costs and expenses incurred by City in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
11.2.5Termination. No re-entry or taking of possession of the Premises by City pursuant to this Section 11.2 shall be construed as an election to terminate this Agreement unless a written notice of such intention is given to TCM or unless the termination thereof is decreed by a court of competent jurisdiction. Notwithstanding any reletting without termination by City because of any Default by TCM, City may at any time after such reletting elect to terminate this Agreement for any such Default.
11.2.6Cumulative Remedies. The remedies herein provided are not exclusive and City shall have any and all other remedies provided herein or by law or in equity including, without limitation, any and all rights and remedies of City under California Civil Code Section 1951.8, California Code of Civil Procedure Section 1161 et seq., or any similar, successor or related provision of applicable Laws.
11.2.7No Surrender. No act or conduct of City, whether consisting of the acceptance of the keys to the Premises, or otherwise, shall be deemed to be or constitute an acceptance of the surrender of the Premises by TCM prior to the expiration of the Term, and such acceptance by City of surrender by TCM shall only flow from and must be evidenced by a written acknowledgment of acceptance of surrender signed by City. The surrender of this Agreement by TCM, voluntarily or otherwise, shall not work a merger unless City elects in writing that such merger take place, but shall operate as an assignment to City of any and all existing Unit Concession Agreements or subleases, or City may, at its option, elect in writing to treat such surrender as a merger terminating TCM’s estate under this Agreement, and thereupon City may terminate any or all such Unit Concession Agreements or subleases by notifying the Concessionaire or sublessee of its election so to do within thirty (30) days after such surrender.
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11.2.8City’s Lien. In addition to any statutory lien City has, TCM hereby grants to City a continuing security interest for all sums of money becoming due hereunder upon personal property of TCM situated on or about the Premises and such property will not be removed therefrom without the consent of City until all sums of money then due City have been first paid and discharged. If a Default occurs under this Agreement, City will have, in addition to all other remedies provided herein or by law, all rights and remedies under the Uniform Commercial Code, including, without limitation, the right to sell the property described in this Section 11.2.8 at public or private sale upon fifteen (15) days’ notice to TCM. This contractual lien will be in addition to any statutory lien for rent.
11.2.9TCM’s Waiver of Redemption. TCM waives redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 and 1179, or under any other pertinent present or future Laws, in the event TCM is lawfully evicted or City lawfully takes possession of the Premises by reason of any Default of TCM hereunder.
11.3Right to Remove Equipment. Subject to the provisions of Article VII and its subsections herein and Section 11.2.8, TCM shall have the right to remove its equipment, supplies, furnishings, inventories, removable fixtures and other trade fixtures and personal property from the Premises. If TCM fails to remove said property, said property shall be considered abandoned and City may dispose of same as it sees fit.
11.4Surrender to be in Writing. No agreement of surrender or to accept a surrender shall be valid unless acknowledged in writing by Executive Director. Neither the doing nor omission of any act or thing by any of the officers, agents or employees of City shall be deemed an acceptance of a surrender of the Premises utilized by TCM under this Agreement.
11.5Additional Rights of City. City, upon termination or cancellation of this Agreement, or upon reentry, regaining or resumption of possession of the Premises, may occupy the Premises and shall have the right to permit any person, firm or corporation to enter upon the Premises and use the same. Such occupation by others may be of only a part of the Premises, or the whole thereof or a part thereof together with other space, and for a period of time the same as or different from the balance of the term remaining hereunder, and on terms and conditions the same as or different from those set forth in this Agreement. City shall also have the right to repair or to make such structural or other changes in the Premises as are necessary in its judgment to maintain the suitability thereof for uses and purposes similar to those granted under this Agreement.
11.6Acceptance Is Not a Waiver. No acceptance by City of the fees and charges for other payments specified herein, in whole or in part, and for any period or periods, after a Default of any of the terms, covenants and conditions to be performed, kept or observed by TCM, other than the Default in the payment thereof, shall be deemed a waiver of any right on the part of City to cancel or terminate this Agreement on account of such Default.
11.7Waiver Is Not Continuous. No waiver by City at any time of any Default on the part of TCM in the performance of any of the terms, covenants or conditions hereof to be performed, kept or observed by TCM shall be or be construed to be a waiver at any time thereafter by City of any other or subsequent default in performance of any of said terms, covenants or conditions.
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11.8Waiver of Redemption and Damages. TCM hereby waives any and all rights of redemption granted by or under any present or future law or statute in the event it is lawfully dispossessed for any cause, or in the event City obtains or retains possession of the Premises in any lawful manner.
11.9Survival of TCM’s Obligations. In the event this Agreement is terminated or canceled by City, or in the event City reenters, regains or resumes possession of the Premises, all of the obligations of TCM hereunder shall survive and shall remain in full force and effect for the full term of this Agreement, other than those obligations of TCM which expressly survive the expiration or earlier termination of this Agreement, which obligations shall survive the expiration or earlier termination of this Agreement for a period of time as may be set forth in any applicable statute of limitations.
11.10Cancellation or Termination By TCM. This Agreement may be cancelled or terminated by TCM by giving a thirty (30) day written notice to City upon the happening of one or more of the occurrences specified in Sections 11.10.1 through 11.10.3.
11.10.1Permanent Abandonment. The permanent abandonment of Airport’s passenger terminals for use by airlines or the permanent removal of all certificated passenger airline service from Airport for a period in excess of thirty (30) consecutive days;
11.10.2Material Restriction of Operation. The lawful assumption by the United States government, or any authorized agency thereof, of the operation, control or use of Airport, or any substantial part thereof, in such manner as to materially restrict TCM from operating thereon for a period of at least ninety (90) consecutive days; or
11.10.3Federally-Required Amendments. Any exercise of authority as provided in Section 16.8 hereof which shall so interfere with TCM’s use and enjoyment of the Premises as to constitute a termination, in whole or in part, of this Agreement by operation of law in accordance with the Laws of the United States.
11.11Damaged Improvements. In the event that the structural or other improvements or furnishings and supplies constructed or installed by TCM in any on or all of the Premises are damaged or destroyed, in whole or in part, from any cause whatsoever other than due to the gross negligence or intentional misconduct of City or the City Agents, TCM shall forthwith proceed with the removal of the debris and damaged or destroyed structural or other improvements, equipment, furnishings and supplies and thereafter shall proceed with all dispatch with the reconstruction work necessary to restore the damaged or destroyed Premises to the condition they were in prior to the occurrence of such damage or destruction and all costs and expense incurred in connection therewith shall be paid by TCM.
11.12Service During Removal. Upon the termination, cancellation or expiration of this Agreement, and under circumstances permitting TCM to remove from the Premises removable property belonging to TCM, TCM will only be allowed to remove such property from in accordance with a transition plan approved in advance by the Executive Director. TCM will fully cooperate with City and any succeeding terminal commercial manager or concessionaire with respect to the Premises to ensure an effective and efficient transition of concession operations. Subject to any remedies which City may have to secure any unpaid fees or charges due under this Agreement, TCM shall have the right to remove from the Premises only those items of movable equipment and furnishings installed by it; provided, however, TCM shall repair all damage done to said areas and other City-owned property resulting from the removal of such machinery, equipment and fixtures.
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11.13City May Renovate. If, during the last month of this Agreement, TCM has removed all or substantially all of its property from the Premises, City may enter said Premises and alter, renovate or redecorate the same.
11.14Viewing By Prospective Competitors. At any time, and from time to time, during ordinary business hours, within twelve (12) months preceding the expiration of the term of this Agreement, City, by its agents and employees, shall have the right to accompany prospective terminal commercial managers, occupiers or users of the Premises, for the purpose of exhibiting and viewing all parts of the same.
11.15Tenancy at Sufferance. Any holding over after the expiration of the Primary Term, without the express written consent of City, shall constitute a Default and, without limiting City’s remedies provided in this Agreement, such holding over shall be construed to be a tenancy at sufferance, at a rental rate equal to one hundred fifty percent (150%) of the Base Rent last due in this Agreement, plus Additional Rent, and shall otherwise be on the terms and conditions herein specified, so far as applicable. During any such period, TCM’s Faithful Performance Guarantee (as defined in Section 4.10) shall continue in effect. If the Premises are not surrendered at the end of the Primary Term or sooner termination of this Agreement, and in accordance with the provisions of Sections 2.4 and 15, TCM shall indemnify, defend and hold City and City Agents harmless from and against any and all Claims resulting from delay by TCM in so surrendering the Premises including, without limitation, any Claims resulting from any claim against City or any City Agent made by any succeeding terminal commercial manager or concessionaire or prospective terminal commercial manager or concessionaire founded on or resulting from such delay and losses to City due to lost opportunities to lease or grant a concession to any portion of the Premises to any such succeeding terminal commercial manager or sub-concessionaire or prospective terminal commercial manager or concessionaire, together with, in each case, actual attorneys’ fees and costs.
XIIDAMAGE OR DESTRUCTION TO PREMISES.
12.1Damage or Destruction to Premises.
12.1.1Insured Damage. If, during the term of this Agreement, any improvements in or on the Premises are partially or totally destroyed from a risk covered by the insurance required to be maintained by TCM or its Concessionaires pursuant to Section 13.3 herein, thereby rendering said Premises partially or totally inaccessible or unusable, TCM or its Concessionaires, as the case may be, must restore the Premises to substantially the same condition as they were immediately before destruction. The proceeds from any property or casualty insurance policy or policies maintained by TCM or its Concessionaires relating to the improvements in or on the Premises shall be used for the reconstruction of the improvements in or on the Premises. In the event that for any reason, TCM or its Concessionaires fails to use any such proceeds for the purpose of the reconstruction of the improvements in or on the Premises, such proceeds shall be paid to City. If the proceeds from any property or casualty insurance policy maintained by TCM or its Concessionaires is insufficient to cover the cost of such restoration, or if TCM or its Concessionaires failed to maintain the required insurance, then TCM or its Concessionaires, as the case may be, shall promptly contribute the shortfall necessary to complete the restoration.
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12.1.2Uninsured Damage. If, during the term of this Agreement, improvements in or on the Premises are partially or totally destroyed from a risk not covered by the property, casualty, or fire and extended coverage insurance required to be maintained by TCM pursuant to Section 13.3 herein, thereby rendering said Premises partially or totally inaccessible or unusable, such destruction shall not automatically terminate this Agreement. If, however, the cost of restoration exceeds twenty five percent (25%) of the full replacement value of improvements, as said value existed immediately before said destruction, TCM may, at TCM’s option, terminate this Agreement as to that portion of the Premises so damaged or destroyed by giving written notice to City within sixty (60) days from the date of discovery of such destruction. If TCM elects to terminate as above provided, TCM shall be obligated, unless otherwise directed by City, to demolish all damaged improvements and remove all debris from the Premises at TCM’s sole cost. If TCM fails to exercise its right to terminate this Agreement or if such damage was the result of the negligent act or omission of TCM or any TCM Party, this Agreement shall continue in full force and effect for the remainder of the term specified herein and TCM shall restore the Premises to substantially the same condition as they were in immediately before destruction.
12.1.3Abatement of Rent. Except as expressly provided in this Section 12.1.3, TCM’s obligation to pay Rent under this Agreement shall not be abated during the period of any damage, destruction or restoration. In the event of substantial damage or destruction to all or a portion of the Premises or areas adjacent to the Premises that are not the result of the negligence or intentional misconduct of TCM or any of the TCM Parties, then the MAG with respect to any Units within such Premises shall be equitably abated in proportion to the degree to which the use of any Units within such Premises is impaired as a result of such damage or destruction as reasonably determined by the Executive Director. With respect to such damage or destruction of the Premises, the time period for such abatement shall not extend beyond the time reasonably necessary for TCM to repair or restore the Premises as determined by the Executive Director. In the event of damage or destruction to the Premises or areas adjacent to the Premises that are the result of the negligence or intentional misconduct of TCM or any of the TCM Parties, then the MAG shall not be abated. TCM acknowledges that TCM is solely responsible for obtaining business interruption insurance (and/or to require its Concessionaires to maintain business interruption insurance) to insure itself against loss during any period of damage, destruction or restoration.
12.2Limits of City’s Obligations. City shall have absolutely no obligation to repair or restore the Premises in the event of any damage or destruction, except to the extent caused by the gross negligence or intentional misconduct of City or the City Agents. All obligations in connection with the damage or destruction of the Premises are the responsibility of TCM, and City shall have no liability or responsibility for such damage, destruction, repair or restoration, except to the extent caused by the gross negligence or intentional misconduct of City or the City Agents.
12.3Destruction Near End of Term. In the event that substantial damage or destruction of all or a portion of the Premises occurs during the last two (2) Years of the Primary Term, and the repair or restoration necessitated by such substantial damage or destruction would under normal construction procedures require more than three (3) months to complete, in the mutual reasonable judgment of TCM and the Executive Director, then either City or TCM may terminate this Agreement as to the portion of the Premises so damaged or destroyed by giving written notice to the other party within forty five (45) days following such damage or destruction. Such termination shall be effective as of the date of such substantial damage or destruction. If either party so elects to terminate as provided above, TCM and its Concessionaires will be entitled to retain from the proceeds of their respective fire or other casualty insurance policies required to be maintained pursuant to this Agreement an amount equal to the Convenience Termination Payment for the terminated Premises, with the balance of the proceeds of such required insurance being paid to City.
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12.4Destruction of Facility. If any non-Premises areas in the Facility in which the Premises are located shall be substantially damaged or destroyed by fire or other casualty, either party may terminate this Agreement as to the Premises that are located within such Facility, unless City notifies TCM within ninety (90) days following such damage or destruction of City’s election to restore such non-Premises areas in the Facility (which election shall be in the Executive Director’s sole discretion). Such termination shall be effective as of the date of such substantial damage or destruction, or such other date as may be reasonably determined by the Executive Director, but not in excess of ninety (90) days following any such date of substantial damage or destruction. In the event of such termination, the Rent shall be equitably adjusted to reflect the loss of such Premises and any impact to the TCM Revenues as a result thereof, and to the extent that TCM’s or its Concessionaires’ improvements within such terminated Premises were undamaged, TCM shall receive the Convenience Termination Payment under Section 9.2.1 above with respect to such terminated Premises (it being understood that no Convenience Termination Payment shall be made with respect to damaged or destroyed improvements within the Premises, but TCM and its Concessionaires will be entitled to retain from the proceeds of their respective fire or other casualty insurance policies required to be maintained pursuant to this Agreement an amount equal to the Convenience Termination Payment for the terminated Premises, with the balance of the proceeds of such required insurance being paid to City).
12.5Waiver. TCM hereby waives any rights to terminate this Agreement it may have under California Civil Code Sections 1932 and 1933.
XIIILIABILITY.
13.1Liability. TCM shall comply with the indemnification and insurance provisions which follow.
13.2City Held Harmless. In addition to the requirements of Section 13.3 herein, TCM shall indemnify, defend, keep and hold City and City Agents harmless from and against any and all actions, causes of action, charges, claims, costs, damages, demands, expenses (including attorneys’ fees, costs of court and expenses incurred), fines, judgments, liabilities, liens, losses, or penalties of every kind and nature whatsoever (collectively, “Claims”) arising out of or in connection with (i) the use and occupancy of the Premises or the Airport by TCM or any of the TCM Parties, (ii) any acts or omissions of TCM or any of the TCM Parties, and (iii) any Default by TCM. The foregoing defense and indemnification obligations of TCM shall include, without limitation, all Claims claimed by anyone by reason of injury to or death of persons, including TCM or any of the TCM Parties, or damage to or destruction of property, including property of TCM or any of the TCM Parties, sustained in, or about the Premises or Airport, except to the extent that any such Claims are due to the sole negligence or intentional misconduct of City or any of the City Agents.
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13.3Insurance. TCM shall procure at its expense, and keep in effect at all times during the term of this Agreement, the types and amounts of insurance specified on Insurance, Exhibit G attached hereto and incorporated by reference herein, including, without limitation, all-risk casualty and property damage insurance to be maintained by TCM, at TCM’s expense, covering all improvements located in or on the Premises which policy shall be in the name of TCM and City with loss payable endorsement in a form reasonably approved by City. The specified insurance shall also, either by provisions in the policies, by City’s own endorsement form or by other endorsement attached to such policies, include and insure City and all of City Agents, their successors and assigns, as additional insureds, against the areas of risk described on Exhibit G with respect to acts or omissions of TCM or any of the TCM Parties in their respective operations, use, and occupancy of the Airport or other related functions performed by or on behalf of TCM or any of the TCM Parties in, on or about Airport.
13.3.1Each specified insurance policy (other than Workers’ Compensation and Employers’ Liability and fire and extended coverages) shall contain a Severability of Interest (Cross Liability) clause which states, “It is agreed that the insurance afforded by this policy shall apply separately to each insured against whom claim is made or suit is brought except with respect to the limits of the company’s liability,” and a Contractual Endorsement which shall state, “Such insurance as is afforded by this policy shall also apply to liability assumed by the insured under this Agreement with the City of Los Angeles.”
13.3.2All such insurance shall be primary and noncontributing with any other insurance held by City where liability arises out of or results from the acts or omissions of TCM or any of the TCM Parties. Such policies may provide for such reasonable deductibles and retentions as are acceptable to Executive Director based upon the nature of TCM’s operations and the type of insurance involved. Any such insurance required of TCM hereunder may be furnished by TCM under any blanket policy carried by it or under a separate policy therefor provided that the insurance carried by TCM under any such blanket policy shall be primary and noncontributing with any other insurance held by City.
13.3.3City shall have no liability for any premiums charged for such coverage(s). The inclusion of City and City Agents, their successors and assigns, as insureds is not intended to, and shall not, make them, or any of them, a partner or joint venturer with TCM in TCM’s operations at Airport. In the event TCM fails to furnish City evidence of insurance and maintain the insurance as required, City, upon ten (10) days prior written notice to comply, may (but shall not be required to) procure such insurance at the cost and expense of TCM, and TCM agrees to promptly reimburse City for the cost thereof plus the Administrative Fee for administrative overhead. Payment shall be made within thirty (30) days of invoice date.
13.3.4At least five (5) days prior to the expiration date of the above policies, documentation showing that the insurance coverage has been renewed or extended shall be filed with City. If such coverage is canceled or reduced, TCM shall, within fifteen (15) days of such cancellation of coverage, file with City evidence that the required insurance has been reinstated or provided through another insurance company or companies.
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13.3.5TCM shall provide proof of all specified insurance and related requirements to City by production a Certificate of Insurance on a standard insurance industry ACCORD form with production of redacted copies of the actual insurance policy(ies) (items to be redacted may be anything deemed confidential by TCM) to be provided by TCM promptly thereafter, by use of City’s own endorsement form(s), by broker’s letter acceptable to Executive Director in both form and content in the case of foreign insurance syndicates, or by other written evidence of insurance acceptable to Executive Director. In the event that the Executive Director determines that it is necessary to review any redacted portion of any such insurance policy, TCM shall promptly arrange for in camera review of such redacted portion of such insurance policy by the Executive Director through reasonable procedures designed to protect confidential information contained therein from disclosure to third parties. The documents evidencing all specified coverages shall be filed with City in duplicate and shall be procured and approved in strict accordance with the provisions in Sections 11.47 through 11.56 of the City of Los Angeles’ Administrative Code prior to TCM occupying the Premises. The documents shall contain the applicable policy number, the inclusive dates of policy coverages, and the insurance carrier’s name, shall bear an original signature of an authorized representative of said carrier, and shall provide that such insurance shall not be subject to cancellation, reduction in coverage, or nonrenewal except after written notice by certified mail, return receipt requested, to the City Attorney of the City of Los Angeles at least thirty (30) days prior to the effective date thereof. City reserves the right to have submitted to it, upon request, all pertinent information about the agent and carrier providing such insurance.
13.3.6City and TCM agree that the insurance policy limits specified herein shall be reviewed for adequacy annually throughout the term of this Agreement by Executive Director who may, thereafter, require TCM, on thirty (30) days prior, written notice, to adjust the amounts of insurance coverage to whatever reasonable amount said Executive Director deems to be adequate.
13.3.7Submission of insurance from a non-California admitted carrier is subject to the provisions of California Insurance Code Sections 1760 through 1780, and any other regulations or directives from the State Department of Insurance or other regulatory board or agency. TCM agrees, except where exempted, to provide City proof of said insurance by and through a surplus line broker licensed by the State of California.
13.3.8To the fullest extent permitted by law and except for the gross negligence or intentional misconduct by City or the City Agents, TCM, on behalf of TCM and its insurers, hereby waives, releases and discharges City and all City Agents from all Claims arising out of damage to or destruction of the Premises, or to TCM’s improvements, fixtures, trade fixtures or other personal property located on or about the Premises, and any loss of use or business interruption, caused by any casualty, regardless whether any such Claim results from the negligence or fault of City or any City Agent, and TCM will look only to TCM’s insurance coverage (regardless whether TCM maintains any such coverage) in the event of any such Claim. Any property insurance which TCM maintains must permit or include a waiver of subrogation in favor of City and all City Agents.
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13.3.9City’s establishment of minimum insurance requirements for TCM in this Agreement is not a representation by City that such limits are sufficient and does not limit TCM’s liability under this Agreement in any manner.
XIVTRANSFER.
14.1Transfer Prohibited. TCM shall not, in any manner, directly or indirectly, by operation of law or otherwise, hypothecate, assign, transfer, or encumber this Agreement, the Premises, in whole or in part or any right or privilege appurtenant thereto, or allow any other person (the employees and invitees of TCM and its Concessionaires excepted) to occupy or use the Premises, or any portion thereof (“Transfer”), without the prior written consent of Board, which may be granted, denied or conditioned in Board’s sole discretion. Any written request for consent to a Transfer shall include proposed documentation evidencing such Transfer, name and address of the proposed transferee and the nature and character of the business of the proposed transferee and shall provide current and three (3) years prior financial statements for the proposed transferee, which financial statements shall be audited to the extent available and shall in any event be prepared in accordance with generally accepted accounting principles (collectively, a “Transfer Request”). This Agreement shall not, nor shall any interest therein, be assignable as to the interest of TCM by operation of law without the prior written consent of Board.
14.2Transfer. For purposes of this Agreement, the term “Transfer” shall also include, but not be limited to, the following: (i) if TCM is a joint venture, a limited liability company, or a partnership, the transfer of fifty percent (50%) or more of the interest or membership in the joint venture, the limited liability company, or the partnership; (ii) if TCM is a corporation, any cumulative or aggregate sale, transfer, assignment, or hypothecation of fifty percent (50%) or more of the voting shares of TCM; (iii) the dissolution by any means of TCM; (iv) the involvement of TCM or its assets in any transaction or series of transactions (by way of merger, sale of stock, sale of assets, acquisition, financing, refinancing, transfer, leveraged buyout or otherwise) which results in or will result in TCM no longer being at least fifty one percent (51%) owned and controlled (through either direct or indirect ownership) by Guarantor; and (v) the involvement of Guarantor or its assets in any transaction or series of transactions (by way of merger, sale of stock, sale of assets, acquisition, financing, refinancing, transfer, leveraged buyout or otherwise) which results in or will result in either a reduction of Guarantor’s net worth as stated in the most current financial statements contained in the TCM Proposal or Guarantor no longer being at least fifty one percent (51%) owned and controlled (through either direct or indirect ownership) by Westfield Group (ASX code: WDC). Any such transfer, assignment, mortgaging, pledging, or encumbering of TCM without the written consent of Board is a violation of this Agreement and shall be voidable at City’s option and shall confer no right, title, or interest in or to this Agreement upon the assignee, mortgagee, pledgee, encumbrancer, or other lien holder, successor, or purchaser. The parties acknowledge that changes in indirect ownership of either TCM or Guarantor resulting solely from the public trading of the securities of Westfield Group does not constitute a Transfer as defined above. Notwithstanding the foregoing definition of Transfer, from and after the fifth (5th) anniversary of the Effective Date, changes in direct or indirect ownership of either TCM or Guarantor resulting solely from the transfer of either TCM’s, Guarantor’s, or any parent entity’s securities in connection with TCM, Guarantor or any parent entity becoming a publicly held company or any subsequent public offering of such securities shall not be deemed to constitute a Transfer. TCM may assign its interest under this Agreement to a wholly-owned subsidiary of TCM, to Guarantor, or to a wholly owned subsidiary of Guarantor and such assignment shall not constitute a Transfer as defined above; provided that TCM shall give City not less than sixty (60) days’ prior written notice of such assignment, and provided further that neither TCM nor Guarantor shall be released from any of their obligations under this Agreement.
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14.3Unit Concession Agreements Not A Transfer. Notwithstanding the definition of “Transfer” set forth in Sections 14.1 and 14.2 above, any Unit Concession Agreement entered into by TCM and approved by the Executive Director pursuant to Section 3.3 above shall not be considered a “Transfer” under this Article XIV.
14.4No Further Consent Implied. A consent to one Transfer shall not be deemed to be a consent to any other or subsequent Transfer, and consent to any Transfer shall in no way relieve TCM of any liability under this Agreement. Any Transfer without City’s consent shall be void, and shall confer no right, title, or interest in or to this Agreement upon the assignee, mortgagee, pledgee, encumbrancer, or other lien holder, successor, or purchaser. and shall, at the option of City, constitute a Default under this Agreement.
14.5No Release. Notwithstanding any Transfer, TCM and any guarantor of TCM’s obligations under this Agreement shall at all times remain fully and primarily responsible and liable for the payment of the Rent and for compliance with all of TCM’s other obligations under this Agreement (regardless of whether City’s approval has been obtained for any such Transfer), except to the extent that TCM or its Guarantor is expressly released in writing by City.
14.6Payment of City’s Costs. In connection with any Transfer, TCM shall pay to City as Additional Rent hereunder an administrative processing fee in the amount of $2,500.00, plus reasonable attorneys’ fees and costs (including, without limitation, the fees and costs attributable to City’s in-house City Attorneys) incurred by City in connection with City’s review and processing of documents regarding any proposed Transfer.
14.7Incorporation of Terms. Each Transfer pursuant to this Section shall be subject to all of the covenants, agreements, terms, provisions and conditions contained in this Agreement and each of the covenants, agreements, terms, provisions and conditions of this Agreement shall be automatically incorporated therein. If City shall consent to, or withhold its consent to, any proposed Transfer, TCM shall indemnify, defend and hold harmless City and City Agents from and against and from any and all Claims that may be made against City or any City Agent by the proposed transferee or by any brokers or other persons claiming a commission or similar fee in connection with the proposed Transfer.
14.8Right to Collect Rent Directly. If this Agreement is transferred or assigned, whether or not in violation of the provisions of this Agreement, City may collect Rent from such transferee or assignee. If the Premises or any part thereof is sublet or used or occupied by anyone other than TCM, whether or not in violation of this Agreement, City may, after a Default by TCM, collect Rent from the occupant. In either event, City may apply the net amount collected to Rent, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of this Section 14, or the acceptance of the assignee, occupant as TCM, or a release of TCM from the further performance by TCM of TCM’s obligations under this Agreement. The consent by City to any Transfer pursuant to any provision of this Agreement shall not, except as otherwise provided herein, in any way be considered to relieve TCM from obtaining the express consent of City to any other or further Transfer. References in this Agreement to use or occupancy of the Premises or any portion thereof by anyone other than TCM shall not be construed as limited to Concessionaires and those claiming under or through Concessionaires but as including also licensees or others claiming under or through TCM, immediately or remotely.
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14.9Reasonableness of Restrictions. TCM acknowledges and agrees that the restrictions, conditions and limitations imposed by this Section 14 on TCM’s ability to Transfer this Agreement or any interest herein, the Premises or any part thereof, to Transfer any right or privilege appurtenant to the Premises, or to allow any other person to occupy or use the Premises or any portion thereof other than its Concessionaires, are, for the purposes of California Civil Code Section 1951.4, as amended from time to time, and for all other purposes, reasonable at the time that this Agreement was entered into, and shall be deemed to be reasonable at the time that TCM seeks to Transfer this Agreement or any interest herein, the Premises or any part thereof, to Transfer any right or privilege appurtenant to the Premises, or to allow any other person to occupy or use the Premises or any portion thereof other than its Concessionaires. TCM’s sole remedy if City withholds its consent to any Transfer in violation of TCM’s rights under this Agreement shall be injunctive relief, and TCM hereby expressly waives California Civil Code Section 1995.310, which permits all remedies provided by law for breach of contract, including, without limitation, the right to contract damages and the right to terminate this Agreement if City withholds consent to a Transfer in violation of TCM’s rights under this Agreement, and any similar or successor statute or law in effect or any amendment thereof during the Term.
14.10Transfer Premium. If City approves any Transfer as herein provided, TCM shall pay to City, as Additional Rent, twenty percent (20%) of any monetary or other economic consideration received by TCM as a result of the Transfer over and above the amount of TCM’s rental and other payments due City pursuant to this Agreement (or applicable share, if a sublease) (excluding any consideration attributed to assets other than this Agreement) after first deducting the unamortized cost of TCM Initial Premises Improvements, the unpaid principal balance of TCM’s Initial Non-Premises Improvements, Mid-Term Refurbishment and Other Alterations which costs had been approved by City and paid for by TCM. The agreement evidencing such Transfer, as the case may be, after approval by City, shall not be amended without City’s prior written consent, and, at City’s option, shall contain a provision directing such transferee to pay the rent and other sums due thereunder directly to City upon receiving written notice from City that TCM is in Default under this Agreement following applicable notice and cure periods with respect to the payment of Rent. In the event that, notwithstanding the giving of such notice, TCM collects any rent or other sums from such transferee, then TCM shall hold such sums in trust for the benefit of City and shall immediately forward the same to City. City’s collection of such rent and other sums shall not constitute an acceptance by City of attornment by such transferee.
XVHAZARDOUS MATERIALS.
15.1Hazardous Materials. For the purposes of this Agreement, “Hazardous Materials” means:
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15.1.1Any substance the presence of which now or hereafter requires the investigation or remediation under any federal, state or local statute, regulation, rule, ordinance, order, action, policy or common law; or
15.1.2Any substance which is or becomes defined as a hazardous waste, extremely hazardous waste, hazardous material, hazardous substance, hazardous chemical, toxic chemical, toxic substance, cancer causing substance, substance that causes reproductive harm, pollutant or contaminant under any federal, state or local statute, regulation, rule or ordinance or amendments thereto, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601 et seq.) or the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.); or
15.1.3Any substance which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any governmental authority, agency, department, commission, council, board, or instrumentality of the United States, the State of California, the City of Los Angeles, or any political subdivision of any of them; or
15.1.4Any substance, without limitation, which contains gasoline, aviation fuel, jet fuel, diesel fuel or other petroleum hydrocarbons, lubricating oils, solvents, polychlorinated bipheynols (PCBs) asbestos, urea formaldehyde or radon gases.
15.2Prohibition; TCM Responsibility. Except as may be specifically approved in writing in advance by Executive Director (“Permitted Hazardous Materials”), TCM (and its Concessionaires) shall not use, store, handle, generate, treat, dispose, discharge or release any Hazardous Materials at the Premises, in any Common Areas or at the Airport in connection with its use, occupancy, and operation of its business at the Premises; provided, however Executive Director shall not unreasonably withhold its approval to TCM’s (or its Concessionaires’) use, storage and handling of common cleaning materials routinely present in businesses conducting the Permitted Use to the extent such materials are used strictly in accordance with applicable Laws, manufacturer’s instructions and best management practices. TCM agrees to accept sole responsibility for full compliance with any and all applicable present and future rules, regulations, restrictions, ordinances, statutes, laws or other orders of any governmental entity regarding the use, storage, handling, distribution, processing or disposal of Hazardous Materials (“Hazardous Materials Laws”) relating to the activities of TCM or any TCM Party on or about the Premises or the Airport, regardless of whether the obligation for such compliance or responsibility is placed on the owner of the land, on the owner of any improvements on the Premises, on the user of the land, or on the user of the improvements. TCM agrees that any damages, penalties or fines levied on City or TCM as a result of noncompliance with any of the above shall be the sole responsibility of TCM; provided, however, TCM shall not have any responsibility or liability with respect to any Hazardous Materials which were in existence in any portion of the Facility, the Premises or elsewhere on the Airport prior to the delivery of any portion of the Premises by City to TCM (all of the foregoing being referred to as “Pre-Existing Hazardous Materials”), except to the extent of TCM’s active negligence in the disturbance or other handling of such Pre-Existing Hazardous Materials (such as asbestos containing materials that may be incorporated in the existing improvements located on or about the Premises and may be disturbed during TCM’s construction activities) and such disturbance or handling was not in compliance with applicable Hazardous Materials Laws. Further, TCM shall indemnify, defend, protect and pay and reimburse and hold City any City Agents harmless from any Claims that City or any City Agent suffers or incurs as a result of noncompliance with TCM’s express obligations set forth above. TCM agrees that any actions (including, without limitation, remedial or enforcement actions of any kind, administrative or judicial proceedings, and orders or judgments arising out of or resulting therefrom), costs, claims, damages (including, without limitation, punitive damages), demands, expenses (including, without limitation, attorneys’, consultants’ and experts’ fees, court costs and amounts paid in settlement of any claims or actions), fines, forfeitures or other civil, administrative or criminal penalties, injunctive or other relief (whether or not based upon personal injury, property damage, or contamination of, or adverse effects upon, the environment, water tables or natural resources), liabilities, liens or losses (collectively, “Environmental Claims”) asserted against or levied on the Premises, City or TCM as a result of noncompliance with any of TCM’s express obligations set forth in this Section shall be the sole responsibility of TCM and that TCM shall indemnify, defend and hold City and City Agents harmless from all such Environmental Claims. Further, City may, at its option, pay such Environmental Claims resulting from TCM’s non-compliance with any of the terms of this Section, and TCM shall reimburse City for any such payments within thirty (30) days after written demand therefor.
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15.3Spill - Clean-Up. From and after the Delivery Dates with respect to any portion of the Premises, in the case of any Hazardous Materials spill, leak, discharge, or improper storage on the Premises or contamination of the Premises by any person, TCM shall make or cause to be made any necessary repairs or corrective actions and shall clean up and remove any leakage, contamination or contaminated materials. In the case of any Hazardous Materials spill, leak, discharge or contamination by TCM or any of the TCM Parties at the Premises or in, on or under adjacent property which affects other property of City or its tenants’ property, TCM shall make or require to be made any necessary corrective actions to clean up and remove any spill, leakage or contamination and contaminated materials. In the case of any Hazardous Materials spill, leak, discharge or contamination by City or any of the City’s Agents within the Facilities, City shall take or require to be taken any necessary corrective action required under applicable Hazardous Materials Laws to clean up and remove such spill, leakage, discharge or contamination. If TCM fails to repair, clean up, properly dispose of or take any other corrective actions as required in this Section 15.3, City shall have the right (but not the obligation) to take all steps it deems necessary to properly repair, clean up or otherwise correct the conditions resulting from the spill, leak or contamination. In connection therewith, TCM shall be listed as the owner or “generator” of any Hazardous Materials listed on any Hazardous Waste Manifest and in connection with any reporting made to any governmental entity. Except as otherwise set forth in this Section 15.3, any such repair, cleanup or corrective actions taken by City as the result of TCM’s failure to comply with TCM’s obligations under this Section 15.3 shall be at TCM’s sole cost and expense and TCM shall indemnify, defend, pay for and reimburse and hold City and City Agents harmless from and against any and all costs (including without limitation, the Administrative Fee) City incurs as a result of any repair, cleanup or corrective action City takes to correct any act or failure to act by TCM.
15.4Provision to City of Environmental Documents. TCM shall promptly supply City with complete and legible copies of all notices, reports, correspondence, and other documents sent by TCM to or received by TCM from any governmental entity or third party regarding any Hazardous Materials and relating to the Premises. Such written materials include, without limitation, all documents relating to any threatened or actual Hazardous Materials spill, leak, or discharge, or to any investigations into or clean up of any actual or threatened Hazardous Materials spill, leak, or discharge including all test results, or any Environmental Claims related to the Premises, or TCM’s use, occupancy or operations at the Premises. If City shall receive any of the foregoing which may relate to the Premises, City shall promptly notify TCM and provide copies thereof with such notice.
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15.5Hazardous Materials Continuing Obligation. This Section and the obligations herein shall survive the expiration or earlier termination of this Agreement for a period equal to any applicable statute of limitations under any applicable Hazardous Materials Laws.
XVIOTHER PROVISIONS.
16.1Other Provisions. The appearance of any provision in this Section shall not diminish its importance.
16.2Cross Default. A material default of the terms of any other lease, license, permit, or agreement held by TCM with the City of Los Angeles Department of Airports shall constitute a material Default of the terms of this Agreement and shall give City the right to terminate this Agreement for cause in accordance with the procedures set forth in this Agreement.
16.3City’s Right of Access and Inspection. City, by its officers, employees, agents, representatives and contractors, shall have the right at all reasonable times to enter upon the Premises for the purpose of inspecting the same, for observing the performance by TCM of its obligations under this Agreement or for doing any act or thing which City may be obligated or have the right to do under this Agreement, or otherwise, and no abatement of fees and charges shall be claimed by or allowed to TCM by reason of the exercise of such right. City shall provide TCM with at least 24 hours prior written notice delivered to TCM’s office in the Facility, provided, no such prior notice shall be required to be given in the event of any emergency or other matter involving public safety as determined by the Executive Director in his or her sole discretion. Upon City’s written request, responsible representatives of TCM will confer with representatives of City for the purpose of making a complete inspection of TCM’s operations, including a review of the quality of service, merchandise and prices, maintenance of the Premises, furnishings and equipment and such other items as City may wish to review.
16.4Automobiles and Other Equipment. Subject to compliance with City’s permitting and security clearance requirements, TCM shall have the right to use, hire or contract for such automotive vehicles or other mechanized equipment and the services thereof as it determines to be necessary for the operation of the concession development and management business herein authorized; provided, however, that the nature, size, type, character and condition of such automotive vehicles and mechanized equipment (including any requirements that such vehicles or other equipment comply with any LEED, ‘green” or energy efficiency requirements and policies of the City then in effect) shall be subject to prior written approval of Executive Director before the same is placed in operation. Upon placing such equipment in operation, TCM shall strictly comply with such rules and regulations as Executive Director may issue, from time to time, covering operation of such equipment and the time periods therefore, the routes over any of the aprons necessary to the operation of the concession, the location of the parking and storage areas for such equipment, the maintenance of the mechanical condition, appearance, neatness, cleanliness and sanitary condition of such equipment and the cleanliness, neat appearance and conduct and demeanor of TCM’s or other personnel operating the same (including, without limitation, any requirements imposed by any Private Restrictions (including, without limitation, that certain Community Benefits Agreement). All of said personnel shall have all licenses required by law and shall also he licensed by City, and City may require periodic inspections of such equipment by City representatives. Approval of inspected equipment may be evidenced by a decal or sticker to be placed on same as required by City. A nominal fee to cover such licensing and inspection services may be charged by City.
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16.5Notices.
16.5.1Notice to City. Written notices to City hereunder, with a copy to the City Attorney of the City of Los Angeles, shall be given by United States mail, postage prepaid, certified, or by personal delivery or nationally recognized overnight courier, and addressed to City at the addresses set forth in the Basic Information or to such other address as City may designate by written notice to TCM.
16.5.2Notice to TCM. Written notices to TCM hereunder shall be given by United States mail, postage prepaid, certified, or by personal delivery or nationally recognized overnight courier, and addressed to TCM at the address set forth in the Basic Information or to such other address as TCM may designate by written notice to City.
16.5.3The execution of any such notice by Executive Director shall be as effective as to TCM as if it were executed by the Board, or by resolution or order of said Board, and TCM shall not question the authority of Executive Director to execute any such notice.
16.5.4All such notices to City, except as otherwise provided herein, may be delivered personally to Executive Director with a copy to the Office of the City Attorney, Airport Division. Notices shall be deemed given upon actual receipt (or attempted delivery if delivery is refused), if personally delivered, or one (1) business day following deposit with a reputable overnight courier that provides a confirmation receipt (or refusal), or on the fifth (5th) day following deposit in the United States mail in the manner described above. In no event shall either party use a post office box or other address which does not accept overnight delivery.
16.6Agent for Service of Process. If TCM is not a resident of the State of California, or is a partnership of joint venture without a partner or member resident in said State, or is a foreign corporation, then in any such event TCM does designate the Secretary of State, State of California, its agent for the purpose of service of process in any court action between it and City arising out of or based upon this Agreement, and the service, shall be made as provided by the Laws of the State of California for service upon a non-resident. Notwithstanding the above, TCM represents to City that its agent for service of process in California is as set forth in the Basic Information (“Registered Agent”) and City agrees that service of process shall be made on TCM’s Registered Agent or such change of Registered Agent as TCM may notify City from time to time. If, for any reason, service of such process is not possible, as an alternative method of service of process, TCM may be personally served with such process out of this State by mailing, by registered or certified mail, the complaint and process to TCM at the address for notice as set forth in the Basic Information, and that such service shall constitute valid service upon TCM as of the date of mailing, and TCM shall have thirty (30) days from the date of mailing to respond thereto. TCM agrees to the process so served, submits to the jurisdiction and waives any and all objection and protest thereto, and Laws to the contrary notwithstanding.
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16.7Restrictions and Regulations.
16.7.1The operations conducted by TCM pursuant to this Agreement shall be subject to: (a) any and all applicable rules, regulations, orders and restrictions which are now in force or which may be hereafter adopted by City, Board or Executive Director with respect to the operation of Airport; (b) any and all orders, directions or conditions issued, given or imposed by City, Board or Executive Director with respect to the use of the roadways, driveways, curbs, sidewalks, parking areas or public areas adjacent to the Premises; and (c) any and all applicable Laws, ordinances, statutes, rules, regulations or orders, including environmental, or any governmental authority, federal, state or municipal, lawfully exercising authority over Airport or TCM’s operations. TCM shall be solely responsible for any and all civil or criminal penalties assessed as a result of its failure to comply with any of these rules, regulations, restrictions, restrictions, ordinances, statutes, Laws, orders, directives and or conditions.
16.7.2Regulations Do Not Permit Termination. City shall not be liable to TCM for any diminution or deprivation of TCM’s rights hereunder on account of the exercise of any such authority, nor shall TCM be entitled to terminate the whole or any portion of this Agreement by reason thereof.
16.8Right 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 Airport, TCM agrees to consent to such amendments, modifications, revisions, supplements or deletions or any of the terms conditions or requirements of this Agreement as may be reasonably required to obtain such funds; provided, however, that in no event will TCM be required, pursuant to this Section, to agree to an increase in the fees and charges provided for herein or to a change in the use of any Unit, provided it is the Permitted Use, to which TCM has put the Unit. In the event that such required amendment results in a material decrease in the sales of TCM’s Concessionaires, then the Executive Director will use good faith efforts to recommend for approval to the Board an amendment to this Agreement providing for an equitable adjustment to the MAG as reasonably determined by the Executive Director following consultation with TCM (it being understood, however, that such amendment to adjust the MAG shall require the approval of the Board acting in the Board’s sole and absolute discretion). As a condition to the Executive Director’s recommending such amendment, TCM shall have demonstrated to the reasonable satisfaction of the Executive Director, based on a six (6) month review of operations following the implementation of such required amendment, that such required amendment is resulting in a material decrease in the sales of TCM’s Concessionaires.
16.9Independent Contractor. It is the express intention of the parties that TCM is an independent contractor and not an employee, agent, joint venturer or partner of City. Nothing in this TCM shall be interpreted or construed as creating or establishing the relationship of employer and employee between TCM and City or between TCM and any official, agent, or employee of City. Both parties acknowledge that TCM is not an employee of City. TCM shall retain the right to perform services for others during the term of this Agreement, unless specified to the contrary herein or prohibited by conflict of interest or ethics Laws, regulations, or professional rules of conduct.
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16.10Disabled Access.
16.10.1TCM shall be solely responsible for fully complying with any and all applicable present or future rules, regulations, restrictions, ordinances, statutes, Laws, or orders of any federal, state, or local governmental entity or court regarding disabled access to the Premises, including any services, programs, improvements or activities provided by TCM. TCM shall be solely responsible for any and all Claims and damages caused by, or penalties levied as the result of, TCM’s noncompliance. Further, TCM agrees to cooperate fully with City in its efforts to comply with the ADA.
16.10.2Should TCM fail to comply with Section 16.10.1, then City shall have the right, but not the obligation, to perform, or have performed, whatever work is necessary to achieve equal access compliance. TCM shall then be required to reimburse City for the actual cost of achieving compliance, plus the Administrative Fee, within thirty (30) days of written demand therefor.
16.11Child Support Orders. This Agreement is subject to Section 10.10, Article I, Chapter 1, Division 10 of the Los Angeles Administrative Code related to Child Support Assignment Orders, which is incorporated herein by this reference. A copy of section 10.10 and the Declaration of Compliance form have been attached hereto for the convenience of the parties as Exhibit H. Pursuant to this Section, TCM (and any concessionaire of TCM providing services to City under this Agreement) shall (1) fully comply with all State and Federal employment reporting requirements for TCM’s or TCM’s concessionaire’s employees applicable to Child Support Assignment Orders; (2) certify that the principal owner(s) of TCM and applicable concessionaires are in compliance with any Wage and Earnings Assignment Orders and Notices of Assignment applicable to them personally; (3) fully comply with all lawfully served Wage and Earnings Assignment Orders and Notices of Assignment in accordance with California Family Code Section 5230, et seq.; and (4) maintain such compliance throughout the term of this Agreement. Pursuant to Section 10.10(b) of the Los Angeles Administrative Code, failure of TCM or an applicable concessionaire to comply with all applicable reporting requirements or to implement lawfully served Wage and Earnings Assignment Orders and Notices of Assignment or the failure of any principal owner(s) of TCM or applicable concessionaires to comply with any Wage and Earnings Assignment Orders and Notices of Assignment applicable to them personally shall constitute a Default of this Agreement subjecting this Agreement to termination where such failure shall continue for more than ninety (90) days after notice of such failure to TCM by City (in lieu of any time for cure provided elsewhere in this Agreement).
16.12Business Tax Registration. TCM represents that it has registered its business with the Office of Finance of the City of Los Angeles and has obtained and presently holds from that Office a Business Tax Registration Certificate (“BTRC”), or a Business Tax Exemption Number, required by the City of Los Angeles’ Business Tax Ordinance (Article 1, Chapter 2, Sections 21.00 and following, of the City of Los Angeles’ Municipal Code). TCM shall maintain, or obtain as necessary, all such certificates required of it under said Ordinance and shall not allow any such certificate to be revoked or suspended during the term hereof.
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16.13Ordinance and Los Angeles Administrative Code (“Code”) Language Governs. Ordinance and Code exhibits are provided as a convenience to the parties only. In the event of a discrepancy between the exhibits and the applicable ordinance or code language, or amendments thereto, the language of the ordinance or code shall govern.
16.14Amendments to Ordinances and Codes. The obligation to comply any Ordinances and Codes which have been incorporated into this Agreement by reference, shall extend to any amendments which may be made to those Ordinances and Codes during the term of this Agreement.
16.15Non-Discrimination and Affirmative Action Provisions.
16.15.1Federal Non-Discrimination Provisions. TCM assures that it will comply with pertinent statutes, Executive Orders, and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance. This provision obligates TCM or its transferee for the period during which Federal assistance is extended to the airport program, except where Federal assistance is to provide, or is in the form of personal property or real property or interest therein or structures or improvements thereon. In these cases, the provision obligates the party or any transferee for the longer of the following periods: (a) the period during which the property is used by the sponsor or any transferee for a purpose for which Federal assistance is extended, or for another purpose involving the provision of similar services or benefits; or (b) the period during which the airport sponsor or any transferee retains ownership or possession of the property.
16.15.2Municipal Non-Discrimination Provisions In Use of Airport. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, religion, national origin, ancestry, sex, sexual orientation, gender identity, gender expression, age, physical handicap, marital status, domestic partner status, or medical condition in connection with this Agreement, the transfer, use, occupancy, tenure, or enjoyment of the Airport or any operations or activities conducted on the Airport. Nor shall TCM establish or contract any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of contractors, subcontractors, or vendees of the Airport. Any Transfer or Unit Concession Agreement, which may be permitted under this Agreement, shall also be subject to all non-discrimination clauses contained in this Section 16.15.
16.15.3Municipal Non-Discrimination Provisions in Employment. During the term of this Agreement, TCM agrees and obligates itself in the performance of this Agreement not to discriminate against any employee or applicant for employment because of the employee’s or applicant’s race, religion, national origin, ancestry, sex, sexual orientation, gender identity, gender expression age, physical handicap, marital status, domestic partner status, or medical condition. TCM shall take affirmative action to insure that applicants for employment are treated, during the term of this Agreement, without regard to the aforementioned factors and shall comply with the affirmative action requirements of the Los Angeles Administrative Code, Sections 10.8, et seq., or any successor ordinances or law concerned with discrimination.
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16.15.4Municipal Equal Employment Practices. If the total payments made under this Agreement are One Thousand Dollars ($1,000) or more, this provision shall apply. During the performance of this Agreement, TCM agrees to comply with Section 10.8.3 of the Los Angeles Administrative Code (“Equal Employment Practices”), which is incorporated herein by this reference. A copy of Section 10.8.3 has been attached to this Agreement for the convenience of the parties as Exhibit I. By way of specification but not limitation, pursuant to Sections 10.8.3.E and 10.8.3.F of the Los Angeles Administrative Code, the failure of TCM to comply with the Equal Employment Practices provisions of this Agreement may be deemed to be a material Default of this Agreement. No such finding shall be made or penalties assessed except upon a full and fair hearing after notice and an opportunity to be heard have been given to TCM. Upon a finding duly made that TCM has failed to comply with the Equal Employment Practices provisions of this Agreement, this Agreement may be forthwith terminated, cancelled, or suspended.
16.15.5Municipal Affirmative Action Program. If the total payments made under this Agreement are One Hundred Thousand Dollars ($100,000) or more, this provision shall apply. During the performance of this Agreement, TCM agrees to comply with Section 10.8.4 of the Los Angeles Administrative Code (“Affirmative Action Program”), which is incorporated herein by this reference. A copy of Section 10.8.4 has been attached to this Agreement for the convenience of the parties as Exhibit J. By way of specification but not limitation, pursuant to Sections 10.8.4.E and 10.8.4.F of the Los Angeles Administrative Code, the failure of TCM to comply with the Affirmative Action Program provisions of this Agreement may be deemed to be a material Default of this Agreement. No such finding shall be made or penalties assessed except upon a full and fair hearing after notice and an opportunity to be heard have been given to TCM. Upon a finding duly made that TCM has failed to comply with the Affirmative Action Program provisions of this Agreement, this Agreement may be forthwith terminated, cancelled, or suspended.
16.15.6Non-Discriminatory Pricing. TCM shall furnish its services on a reasonable and not unjustly discriminatory basis to all users, and charge reasonable and not unjustly discriminatory prices for each unit or service, provided that TCM may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers.
16.15.7Concessionaires. TCM shall ensure the each Concessionaire complies with the foregoing provisions of this Section 16.15 in connection with the activities of such Concessionaire under its Unit Concession Agreement.
16.16Security - General. TCM shall be responsible for fully complying with any and all applicable present or future rules, regulations, restrictions, ordinances, statutes, Laws or orders of any federal, state or local governmental entity regarding airfield security.
16.16.1 Security - FAA. TCM shall be responsible for the maintenance and repair of gates and doors that are located at the Premises or controlled by TCM. TCM shall comply fully with applicable provisions of the Federal Aviation Administration Regulations, 14 CFR, Part 107, including the establishment and implementation of procedures acceptable to Executive Director to control access from the Premises to air operation areas in accordance with the Airport Security Program required by Part 107. Further, TCM shall exercise exclusive security responsibility for the Premises.
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16.16.2Security - Doors and Gates. Gates and doors located at the Premises which permit entry into restricted areas at Airport shall be kept locked by TCM at all times when not in use or under TCM’s constant security surveillance. Gate or door malfunctions which permit unauthorized entry into restricted areas shall be reported to Department of Airports’ Operations Bureau without delay and shall be maintained under constant surveillance by TCM until repairs are affected by TCM or City or the gate or door is properly secured.
16.16.3Security - Penalties. All civil penalties levied by the Federal Aviation Administration for violation of Federal Aviation Regulations pertaining to security gates or doors located at the Premises or otherwise controlled by TCM shall be the sole responsibility of TCM. TCM agrees to indemnify, defend and hold City and City Agents harmless from and against any Claims or any federal civil penalties amounts City or any City Agent must pay due to any security violation arising from the use of TCM’s leasehold or the breach of any obligation imposed by this Section. TCM will be billed for the cost of any such penalties paid by City as Additional Rent hereunder, plus the Administrative Fee, to be paid by TCM to City within thirty (30) days of written demand.
16.16.4Security Arrangements. City shall provide, or cause to be provided, during the term hereof, the public fire, police and security protection similar to that afforded to others at Airport, and it will issue and enforce rules and regulations with respect thereto for all portions of Airport. TCM shall have the right, but shall not be obligated, to provide such additional or supplemental private protection as it may desire.
16.17Visual Artists’ Rights Act. TCM shall not install, or cause to be installed, any work of art subject to the Visual Artists’ Rights Act of 1990 (as amended), 17 U.S.C. 106A, et seq., or California Civil Code Section 980, et seq., (“VARA”) on or about the Premises without first obtaining a waiver, in writing, of all rights under VARA, satisfactory to Executive Director and approved as to form and legality by the City Attorney’s Office, from the artist. Said waiver shall be in full compliance with VARA and shall name City as a party for which the waiver applies. TCM is prohibited from installing, or causing to be installed, any piece of artwork covered under VARA on the Premises without the prior, written approval and waiver of Executive Director. Any work of art installed on the Premises without such prior approval and waiver shall be deemed a trespass, removable by City, by and through its Executive Director, upon three (3) days written notice, all costs, expenses, and liability therefore to be borne exclusively by TCM. TCM, in addition to other obligations to indemnify, defend and hold City and City Agents harmless, as more specifically set forth in this Agreement, shall indemnify, defend and hold City and City Agents harmless from all Claims resulting from TCM’s failure to obtain City’s waiver of VARA and failure to comply with any portion of this provision. The rights afforded City under this provision shall not replace any other rights afforded City in this Agreement or otherwise, but shall be considered in addition to all its other rights.
16.18 Living Wage Ordinance General Provisions. This Agreement and all Unit Concession Agreements are subject to the Living Wage Ordinance (hereinafter referred to as “LWO”) (Section 10.37, et seq., of the Los Angeles Administrative Code, which is incorporated herein by this reference). A copy of Section 10.37 has been attached hereto for the convenience of the parties as Exhibit K. The LWO requires that, unless specific exemptions apply, any employees of service contractor’s who render services that involve an expenditure in excess of Twenty Five Thousand Dollars ($25,000) and a contract term of at least three months are covered by the LWO if any of the following applies: (1) at least some of the services are rendered by employees whose work site is on property owned by City, (2) the services could feasibly be performed by City of Los Angeles employees if the awarding authority had the requisite financial and staffing resources, or (3) the designated administrative agency of the City of Los Angeles has determined in writing that coverage would further the proprietary interests of the City of Los Angeles. Employees covered by the LWO are required to be paid not less than a minimum initial wage rate, as adjusted each year. The LWO also requires that employees be provided with at least twelve (12) compensated days off per year for sick leave, vacation, or personal necessity at the employee’s request, and at least ten (10) additional days per year of uncompensated time pursuant to Section 10.37.2(b). The LWO requires employers to inform employees making less than Twelve Dollars ($12) per hour of their possible right to the federal Earned Income Tax Credit (“EITC”) and to make available the forms required to secure advance EITC payments from the employer pursuant to Section 10.37.4. TCM shall permit access to work sites for authorized City representatives to review the operation, payroll, and related documents, and to provide certified copies of the relevant records upon request by City. Whether or not subject to the LWO, TCM shall not retaliate against any employee claiming non-compliance with the provisions of the LWO, and, in addition, pursuant to Section 10.37.6(c), TCM agrees to comply with federal law prohibiting retaliation for union organizing.
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16.18.1Living Wage Coverage Determination. An initial determination has been made that this Agreement and the Unit Concession Agreements are service contracts under the LWO, and that it is not exempt from coverage by the LWO. Determinations as to whether this Agreement and Unit Concession Agreements are service contracts covered by the LWO, or whether an employer or employee are exempt from coverage under the LWO are not final, but are subject to review and revision as additional facts are examined or other interpretations of the law are considered. In some circumstances, applications for exemption must be reviewed periodically. City shall notify TCM in writing about any redetermination by City of coverage or exemption status. To the extent TCM claims non-coverage or exemption from the provisions of the LWO, the burden shall be on TCM to prove such non-coverage or exemption.
16.18.2Compliance; Termination Provisions and Other Remedies: Living Wage Policy. If TCM and it Concessionaires are not initially exempt from the LWO, TCM shall comply, and shall require its Concessionaires to comply, with all of the provisions of the LWO, including payment to employees at the minimum wage rates, effective on the execution date of this Agreement, and shall execute the Declaration of Compliance Form attached to this Agreement, as part of Exhibit L, contemporaneously with the execution of this Agreement. If TCM is initially exempt from the LWO, but later no longer qualifies for any exemption, TCM shall, at such time as TCM is no longer exempt, comply with the provisions of the LWO and execute the then currently used Declaration of Compliance Form, or such form as the LWO requires. Under the provisions of Section 10.37.6(c) of the Los Angeles Administrative Code, violation of the LWO shall constitute a material Default of this Agreement and City shall be entitled to terminate this Agreement and otherwise pursue legal remedies that may be available, including those set forth in the LWO, if City determines that TCM violated the provisions of the LWO. The procedures and time periods provided in the LWO are in lieu of the procedures and time periods provided elsewhere in this Agreement. Nothing in this Agreement shall be construed to extend the time periods or limit the remedies provided in the LWO.
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16.18.3Subcontractor Compliance. TCM agrees to include, in every subcontract or Unit Concession Agreement covering City property entered into between TCM and any subcontractor or Concessionaire, a provision pursuant to which such subcontractor or Concessionaire (A) agrees to comply with the Living Wage Ordinance and the Service Contractor Worker Retention Ordinance with respect to City’s property; (B) agrees not to retaliate against any employee lawfully asserting noncompliance on the part of the subcontractor or Concessionaire with the provisions of either the Living Wage Ordinance or the Service Contractor Worker Retention Ordinance; and (C) agrees and acknowledges that City, as the intended third-party beneficiary of this provision may (i) enforce the Living Wage Ordinance and Service Contractor Worker Retention Ordinance directly against the subcontractor or Concessionaire with respect to City property, and (ii) invoke, directly against the subcontractor or Concessionaire with respect to City property, all the rights and remedies available to City under Section 10.37.5 of the Living Wage Ordinance and Section 10.36.3 of the Service Contractor Worker Retention Ordinance, as same may be amended from time to time.
16.19Service Contract Worker Retention Ordinance. This Agreement may be subject to the Service Contract Worker Retention Ordinance (hereinafter referred to as “SCWRO”) (Section 10.36, et seq., of the Los Angeles Administrative Code), which is incorporated herein by this reference. A copy of Section 10.36 has been attached for the convenience of the parties as Exhibit M. If applicable, TCM must also comply with the SCWRO which requires that, unless specific exemptions apply, all employers under contracts that are primarily for the furnishing of services to or for the City of Los Angeles and that involve an expenditure or receipt in excess of Twenty Five Thousand Dollars ($25,000) and a contract term of at least three (3) months, shall provide retention by a successor TCM for a ninety-day (90-day) transition period of the employees who have been employed for the preceding twelve (12) months or more by the terminated TCM or concessionaire, if any, as provided for in the SCWRO. Under the provisions of Section 10.36.3(c) of the Los Angeles Administrative Code, City has the authority, under appropriate circumstances, to terminate this Agreement and otherwise pursue legal remedies that may be available if City determines that the subject TCM violated the provisions of the SCWRO.
16.20Equal Benefits Ordinance. Unless otherwise exempt in accordance with the provisions of the Equal Benefits Ordinance (“EBO”), TCM certifies and represents that TCM will comply with the applicable provisions of EBO Section 10.8.2.1 of the Los Angeles Administrative Code, as amended from time to time. TCM shall not, in any of its operations within the City of Los Angeles or in other locations owned by the City of Los Angeles, including the Airport, discriminate in the provision of Non-ERISA Benefits (as defined below) between employees with domestic partners and employees with spouses, or between the domestic partners and spouses of such employees, where the domestic partnership has been registered with a governmental entity pursuant to state or local law authorizing such registration. As used above, the term “Non-ERISA Benefits” shall mean any and all benefits payable through benefit arrangements generally available to TCM’s employees which are neither “employee welfare benefit plans” nor “employee pension plans”, as those terms are defined in Sections 3(1) and 3(2) of ERISA. Non-ERISA Benefits shall include, but not be limited to, all benefits offered currently or in the future, by TCM to its employees, the spouses of its employees or the domestic partners of its employees, that are not defined as “employee welfare benefit plans” or “employee pension benefit plans”, and, which include any bereavement leave, family and medical leave, and travel discounts provided by TCM to its employees, their spouses and the domestic partners of employees.
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16.20.1TCM agrees to post the following statement in conspicuous places at its place of business available to employees and applicants for employment:
“During the term of a Contract with the City of Los Angeles, TCM will provide equal benefits to employees with spouses and its employees with domestic partners. Additional information about the City of Los Angeles’ Equal Benefits Ordinance may be obtained from the Department of Public Works, Bureau of Contract Administration, Office of Contract Compliance at (213) 847-6480.”
16.20.2The failure of TCM to comply with the EBO will be deemed to be a material Default of this Agreement by City. If TCM fails to comply with the EBO, City may cancel or terminate this Agreement, in whole or in part, and all monies due or to become due under this Agreement may be retained by City. City may also pursue any and all other remedies at law or in equity for any such Default. Failure to comply with the EBO may be used as evidence against TCM in actions taken pursuant to the provisions of Los Angeles Administrative Code Section 10.40, et seq., TCM Responsibility Ordinance. If City determines that TCM has set up or used its contracting entity for the purpose of evading the intent of the EBO, City may terminate this Agreement.
16.21Contractor Responsibility Program. TCM shall comply with the provisions of the Contractor Responsibility Program adopted by the Board. Executive Directives setting forth the rules, regulations, requirements and penalties of the Contractor Responsibility Program and the Pledge of Compliance Form is attached hereto as Exhibit N and incorporated herein by reference.
16.22First Source Hiring Program for Airport Employers. For all work performed at Airport, TCM shall comply, and shall cause its Concessionaires to comply, with all terms and conditions of the First Source Hiring Program (“FSHP”). A copy of the FSHP is attached hereto and incorporated by reference herein as Exhibit O.
16.23Environmentally Favorable Options. TCM acknowledges for itself and its Concessionaires that its operation of its activities under this Agreement will be subject to all of City of Los Angeles’ policies, guidelines and requirements regarding environmentally favorable construction, use or operations practices (hereinafter collectively referred to as “City Policies”) as such City Policies may be promulgated, revised and amended from time-to-time.
16.24Municipal Lobbying Ordinance. TCM shall comply with the provisions of the City of Los Angeles Municipal Lobbying Ordinance.
16.25Labor Peace Agreement. A Unit Concession Agreement shall not be approved or entered into unless: (i) such Concessionaire shall have a signed a Labor Peace Agreement (“LPA”) with the labor organizations representing or seeking to represent concession workers at the Unit covered by the Unit Concession Agreement; (ii) TCM or such Concessionaire shall have submitted to City a copy of such LPA, executed by all of the parties to such LPA; and (iii) such LPA shall prohibit such labor organizations and their members from engaging in picketing, work stoppages, boycotts or other economic interference with the business of such Concessionaire at any of the airports operated by City for the duration of the Unit Concession Agreement.
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16.26Alternative Fuel Vehicle Requirement Program. TCM shall comply with the provisions of the Alternative Fuel Vehicle Requirement Program. The rules, regulations, and requirements of the Alternative Fuel Vehicle Program are attached as Exhibit P and made a material term of this Agreement.
16.27Ownership of Work Product. TCM agrees that any and all intellectual properties, including, but not limited to, all ideas, concepts, themes, documentation or other literature, or illustrations, or any components thereof, conceived, developed, written or contributed by TCM, either individually or in collaboration with others, for the benefit of City, shall belong to and be the sole property of City.
16.28Estoppel Certificate. Upon written request of either party the other party shall execute, acknowledge and deliver to the requesting party or its designee, an Estoppel Certificate in the form reasonably required by the requesting party and with any other statements reasonably requested by the requesting party or its designee. Any such Estoppel Certificate may be relied upon by the requesting party or its designee. If TCM fails to provide such certificate within twenty (20) days of receipt by TCM of a written request by City as herein provided, such failure shall, at City’s election, constitute a Default under this Agreement, and TCM shall be deemed to have given such certificate as above provided without modification and shall be deemed to have admitted the accuracy of any information supplied by City to such designee.
16.29Subordination of Agreement. This Agreement shall be subordinate to the provisions of any existing or future agreement between City and the United States of America, its boards, agencies or commissions, or between City and the State of California, relative to the operations or maintenance of Airport the execution of which has been or may be required as a condition precedent to the expenditure of federal or state funds for the development of said Airport. This Agreement and all the provisions hereof shall be subject to whatever right the United States Government now has or in the future may have or acquire affecting the control, operation, regulation, and taking over of the Airport or the exclusive or nonexclusive use of the Airport by the United States during the time of war or national emergency.
16.30Laws of California; Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of California and venue shall lie in the appropriate U.S. Federal Court or California Superior Court located in Los Angeles County, California
16.31Agreement Binding Upon Successors. Subject to the provisions of Section 14, this Agreement shall be binding upon and shall inure to the benefit of the successors, heirs and assigns of the parties hereto.
16.32Attorneys’ Fees. If either party hereto fails to perform any of its obligations under this Agreement or if any dispute arises between the parties hereto concerning the meaning or interpretation of any provision of this Agreement, then the defaulting party or the party not prevailing in such dispute, as the case may be, shall pay any and all costs and expenses incurred by the other party on account of such default or in enforcing or establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys’ fees and disbursements. Any such reasonable attorneys’ fees and other expenses incurred by either party in enforcing a judgment in its favor under this Agreement shall be recoverable separately from and in addition to any other amount included in such judgment, and such attorneys’ fees obligation is intended to be severable from the other provisions of this Agreement and to survive and not be merged into any such judgment.
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16.33Entire Agreement. The provisions of this Agreement constitute the entire agreement between the parties hereto and said Agreement may not be changed or modified in any manner except by written amendment fully executed by City and TCM. This Agreement supersedes the RFP and the TCM Proposal, except that the certifications, affidavits, commitments and undertakings of TCM set forth in (i) Section 4 of the TCM Proposal (Official Proposal Statement dated 10/14/2011), (ii) Section 14 of the TCM Proposal (Business Ethics Disclosure), (iii) Exhibit A of the TCM Proposal (TCM board resolution dated 8/31/2011), (iv) Exhibit B of the TCM Proposal (certified financial statements and information), and (v) the Administrative Requirements (items numbers 1 through 14 as described in the RFP) are incorporated herein by reference to the extent that the same are not in conflict with the terms of this Agreement (it being understood that the terms of this Agreement shall control). There are no representations, agreements or understandings, oral or written, between and among the parties relating to the subject matter contained in this Agreement which are not fully set forth herein. This is an integrated agreement. TCM acknowledges that it has conducted its own due diligence investigation of its prospects for successfully operating the Permitted Uses at the Premises, and has made its own determination of the accuracy of any information provided by City with respect to the financial results of any prior operator of any similar business at the Airport, that City has made no representations or warranties to TCM with respect to any of such matters, and that all prior discussions between City and TCM with respect to such matters are superseded by this Agreement.
16.34Conditions and Covenants. Each covenant herein is a condition, and each condition herein is as well a covenant by the parties hound thereby, unless waived in writing by the parties hereto.
16.35Gender and Plural Usage. The use of any gender herein shall include all genders and the use of any number shall be construed as the singular or the plural, all as the context may require.
16.36Time is of the Essence; Days. Time shall be of the essence in complying with the terms, conditions, and provisions of this Agreement. Unless otherwise expressly specified, “days” shall mean calendar days.
16.37Void Provision. If any provision of this Agreement is determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provision of this Agreement, and all such other provisions shall remain in full force and effect.
16.38Construction and Interpretation. It is the intention of the parties hereto that if any provision of this Agreement is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provision shall have the meaning which renders it valid. The language of this Agreement shall be construed according to its fair meaning, and not strictly for or against either City or TCM.
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16.39Section Headings. The section headings appearing herein are for the convenience of City and TCM, and shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of this Agreement.
16.40Waiver of Claims. TCM hereby waives any Claim against City and City Agents for loss of anticipated profits caused by any suit or proceeding directly or indirectly attacking the validity of this Agreement or any part hereof, or by any judgment or award in any suit or proceeding declaring this Agreement null, void or voidable, or delaying the same, or any part hereof, from being carried out. City hereby waives any Claim against TCM for loss of anticipated profits caused by any suit or proceeding directly or indirectly attacking the validity of this Agreement or any part hereof, or by any judgment or award in any suit or proceeding declaring this Agreement null, void or voidable, or delaying the same, or any part hereof, from being carried out.
16.41Waiver. Every provision herein imposing an obligation upon City or TCM is material inducement and consideration for the execution of this Agreement. No waiver by City or TCM of any Default or breach of any provision of this Agreement shall be deemed for any purpose to be a waiver of any Default or breach of any other provision hereof nor of any continuing or subsequent Default or breach of the same provision.
16.42Representations of TCM. TCM (and, if TCM is a corporation, partnership, limited liability company or other legal entity, such corporation, partnership, limited liability company or entity) hereby makes the following representations and warranties, each of which is material and being relied upon by City, is true in all respects as of the date of this Agreement, and shall survive the expiration or termination of the Agreement. TCM shall re-certify such representations to City periodically, upon City’s written request.
16.42.1If TCM is an entity, TCM is duly organized, validly existing and in good standing under the laws of the state of its organization, and is qualified to do business in the state in which the Premises is located, and the persons executing this Agreement on behalf of TCM have the full right and authority to execute this Agreement on behalf of TCM and to bind TCM without the consent or approval of any other person or entity. TCM has full power, capacity, authority and legal right to execute and deliver this Agreement and to perform all of its obligations hereunder. This Agreement is a legal, valid and binding obligation of TCM, enforceable in accordance with its terms.
16.42.2TCM has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of its assets, (iv) suffered the attachment or other judicial seizure of all or substantially all of its assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally within the last 5 years prior to the date of this Agreement.
16.42.3TCM hereby represents and warrants to City that TCM is not:
1.in violation of any Anti-Terrorism Law (as hereinafter defined);
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2.nor is any holder of any direct or indirect equitable, legal or beneficial interest in TCM, as of the date hereof: (A) conducting any business or engaging in any transaction or dealing with any Prohibited Person (as hereinafter defined), or any company with business operations in Sudan that are prohibited under Cal. Gov. Code §7513.6, including the governments of Cuba, Iran, North Korea, Myanmar and Syria and, including the making or receiving of any contribution of funds, goods or services to or for the benefit of any Prohibited Person or forbidden entity; (B) dealing in, or otherwise engaging in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224; or (C) engaging in or conspiring to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate any of the prohibitions set forth in, any Anti-Terrorism Law; and
3.a Prohibited Person, nor are any of TCM’s affiliates, officers, directors, shareholders, members or its Guarantor, as applicable, a Prohibited Person.
If at any time any of these representations becomes false, then it shall be considered a material Default under this Agreement. As used herein, “Anti-Terrorism Law” is defined as any law relating to terrorism, anti-terrorism, money-laundering or anti-money laundering activities, including without limitation the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986, Executive Order No. 13224, Title 3 of the USA Patriot Act, Cal. Gov. Code §7513.6, and any regulations promulgated under any of them. As used herein “Executive Order No. 13224” is defined as Executive Order No. 13224 on Terrorist Financing effective September 24, 2001, and relating to “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism”, as may be amended from time to time. “Prohibited Person” is defined as (i) a person or entity that is listed in the Annex to Executive Order No. 13224, or a person or entity owned or controlled by an entity that is listed in the Annex to Executive Order No. 13224; (ii) a person or entity with whom Landlord is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; or (iii) a person or entity that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, http://www.treas.gov/ofac/tllsdn.pdf or at any replacement website or other official publication of such list. “USA Patriot Act” is defined as the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” (Public Law 107-56), as may be amended from time to time.
16.42.4Additional Representations of TCM. TCM represents as of the date of this Agreement that the representations and warranties of TCM contained in TCM’s Proposal and in any financial statement or other materials provided by TCM are true, correct and complete, and shall be deemed restated in full in this Agreement.
16.43TCM Acknowledgement and Waiver. TCM expressly represents, acknowledges and agrees that: (a) in connection with this Agreement, the rights granted to TCM pursuant to this Agreement, or any termination or expiration thereof, TCM has no right or entitlement whatsoever to receive any relocation assistance, moving expenses, goodwill or other payments or compensation under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C. Section 4601 et seq., the California Relocation Assistance Law, as amended, California Government Code Section 7260 et seq., California Eminent Domain Law (California Code of Civil Procedure Section 1230.010 et seq.), the law of inverse condemnation, and/or under any other relocation, eminent domain, condemnation or similar law now or hereafter in effect (collectively, “Compensation Claims”); (b) TCM is not entitled to assert any Compensation Claims arising out of or in connection with TCM’s surrender or vacation of the Premises; and (c) nothing in this Agreement shall create, or otherwise give rise to, any rights for TCM or any TCM Party to receive any relocation assistance, moving expenses, goodwill or other payments or compensation under the foregoing laws, all of which rights and Compensation Claims (to the extent the same may be applicable) are hereby waived and relinquished by TCM and the TCM Parties.
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16.44Parties In Interest. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than City and TCM, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement. The TCM Parties are not third party beneficiaries of this Agreement.
16.45City Approval. Following the execution and delivery of this Agreement, whenever this Agreement calls for a matter to be approved or disapproved by or on behalf of City, then the written approval, disapproval, or consent of the Executive Director within the legal authority of the Executive Director, subject to the approval of the Office of the City Attorney as to form, shall constitute the approval, disapproval, or consent of City; provided, however, if the approval or consent by City is in excess of the Executive Director’s legal authority, then such matter shall be approved by the Board. Except as otherwise expressly set forth in this Agreement, with respect to any matter that is subject to the approval or consent of the Executive Director or the Board, such approval or consent may be given or withheld in the Executive Director’s or the Board’s sole and absolute discretion. Any approvals or consents required from or given by City under this Agreement shall be approvals of the City of Los Angeles Department of Airports acting as the owner and operator of the Airport, and shall not relate to, constitute a waiver of, supersede or otherwise limit or affect the rights or prerogatives of the City of Los Angeles as a government, including the right to grant or deny any permits required for construction or maintenance of the Premises and the right to enact, amend or repeal laws and ordinances, including, without limitation, those relating to zoning, land use, and building and safety. No approval or consent on behalf of City will be deemed binding upon City unless approved in writing as to form by the City Attorney.
16.46Board Order AO-5077 Exemption. With respect to the provision of products and services pursuant to this Agreement, TCM, its Concessionaires, and their respective vendors are expressly exempt from the Board-imposed license fee described in Board Order AO-5077 and related Staff Report, which license fee may, in the absence of such exemption, be assessed on the gross revenues derived from the provision of products and services pursuant to this Agreement.
16.47Compliance with Los Angeles City Charter Section 470(c)(12).
16.47.1TCM, subcontractors and their principals are obligated to fully comply with City of Los Angeles Charter Section 470(c)(12) and related ordinances, regarding limitations on campaign contributions and fundraising for certain elected City of Los Angeles officials or candidates for elected City of Los Angeles office if the contract is valued at $100,000 or more and requires approval of a City of Los Angeles elected official. Additionally, TCM is required to provide and update certain information to the City as specified by law. Any contractor subject to Charter Section 470(c)(12) shall include the following notice in any contract with a subcontractor expected to receive at least $100,000 for performance under this Agreement:
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“Notice Regarding Los Angeles Campaign Contribution and Fundraising Restrictions.
As provided in Charter Section 470(c)(12) and related ordinances, you are subcontractor on City of Los Angeles contract # . Pursuant to City Charter Section 470(c)(12), subcontractor and its principals are prohibited from making campaign contributions and fundraising for certain elected City officials or candidates for elected City office for 12 months after the City contract is signed. Subcontractor is required to provide to contractor names and addresses of the subcontractor’s principals and contact information and shall update that information if it changes during the twelve (12) month time period. Subcontractor’s information included must be provided to contractor within five (5) business days. Failure to comply may result in termination of contract or any other available legal remedies including fines. Information about the restrictions may be found at the City Ethics Commission’s website at http://ethics.lacity.org/ or by calling 213-978-1960.”
16.47.2TCM, subcontractors and their principals shall comply with these requirements and limitations. Violation of this provision shall entitle the City to terminate this Agreement and pursue any and all legal remedies that may be available.
[Signatures on next page]
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IN WITNESS WHEREOF, City has caused this Agreement to be executed on its behalf by Executive Director and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
APPROVED AS TO FORM: |
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Carmen A. Trutanich, City Attorney |
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WESTFIELD CONCESSION MANAGEMENT, LLC, |
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GUARANTOR: |
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WESTFIELD AMERICA, INC., |
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.19.1
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RESOLUTION NO. 25616 |
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LAX LA/Ontario Van Nuys City of Los Angeles Eric Garcetti Board of Airport Sean O. Burton Valeria C. Velasco Gabriel L. Eshaghian Gina Marie Lindsey |
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BE IT RESOLVED that the Board of Airport Commissioners approved the First Amendment to Terminal Commercial Management Concession Agreement LAA-8613 with Westfield Concessions Management LLC at Los Angeles International Airport, to extend the term for premises in the Tom Bradley International Terminal by three (3) years and in Terminal 2 by six (6) months, as referenced in the Board-adopted staff report attached hereto and made part hereof; and BE IT FURTHER RESOLVED that the Board of Airport Commissioners authorized the Executive Director to execute said First Amendment upon approval as to form by the City Attorney and upon approval by the Los Angeles City Council; and BE IT FURTHER RESOLVED that the issuance of permits, leases, agreements, gate and space assignments, and renewals, amendments or extensions thereof, or other entitlements granting use of existing airport facilities or its operations is exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Article III Class 1(18)(c) of the Los Angeles City CEQA Guidelines; and BE IT FURTHER RESOLVED that actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of the Los Angeles City Charter Section 606. |
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I hereby certify that this Resolution No. 25616 is true and correct, as adopted by the Board of Airport Commissioners at its Regular Meeting held on Thursday, January 15, 2015. /s/ Sandra J. Miller Sandra J. Miller – Secretary BOARD OF AIRPORT COMMISSIONERS Approved by City Council on June 30, 2015 |
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1 World Way Los Angeles California 90045-5803 Mail P.O. Box 92216 Los Angeles California 90009-2216 Telephone 310 646 5252 Internet www.lawa.aero
SUBJECT: Amendment to the Terminal Commercial Management Concession Agreement with Westfield Concessions Management LLC at Los Angeles International Airport
Approve the First Amendment to Terminal Commercial Management Concession Agreement LAA-8613 with Westfield Concessions Management LLC at Los Angeles International Airport to extend the term of the Agreement for premises in the Tom Bradley International Terminal by three years and in Terminal 2 by six months.
RECOMMENDATIONS:
Management RECOMMENDS that the Board of Airport Commissioners:
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ADOPT the Staff Report. |
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DETERMINE that this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Article III, Class 1 (18)(c) of the Los Angeles City CEQA Guidelines. |
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APPROVE the First Amendment to Terminal Commercial Management Concession Agreement LAA-8613 with Westfield Concessions Management LLC. |
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AUTHORIZE the Executive Director to execute the First Amendment to Terminal Commercial Management Concession Agreement LAA-8613 with Westfield Concessions Management LLC upon approval as to form by the City Attorney and approval of City Council. |
Page 1
WESTFIELD CONCESSIONS.docx
DISCUSSION:
1.Purpose
Address impact on Westfield Concessions Management LLC (Westfield) of delivery delays in the Tom Bradley International Terminal (TBIT) and Terminal 2, and to compensate for construction cost increases arising from Los Angeles World Airports (LAWA) and its construction contractors in TBIT.
2.Prior Related Actions
The Board of Airport Commissioners (Board) approved award of a 17-year Terminal Commercial Manager (TCM) Concession Agreement to Westfield to develop, lease, and manage convenience retail, specialty retail, food and beverage, and certain passenger services in the Tom Bradley International Terminal (TBIT) and Terminal 2, which included an option to redevelop the Theme Building that has since expired (TCM Agreement LAA-8613).
3.Current Action
In order to meet scheduled opening of gates in TBIT, Westfield was required to build out the retail and food and beverage concession space concurrent with LAWA’s base building contractor. This overlap of construction activities delayed delivery of space to Westfield and caused significant increases in construction cost in an amount claimed by Westfield for itself and its Concessionaires to be approximately [**]. There were multiple reasons for the schedule delays and Westfield and its Concessionaires costs increases. After considerable investigation and evaluation, staff has since determined that [**] is a reasonable assessment of impacts for which Westfield was not responsible.
TCM Agreement LAA-8613 was part of the competitive process and included a definitive not-to-exceed termination date, namely January 31, 2029, which is not extendable without an amendment. The TCM Agreement LAA-8613 contemplated providing the successful proposer no less than 180 months to operate concession facilities and depreciate capital investments.
With delayed delivery of the space, unless amended to extend the term, TCM Agreement LAA-8613 will not fairly deliver to Westfield what LAWA envisioned. In addition, staff found the best means to remedy the construction cost increases and erase any claims from Westfield or its Concessionaires was to offer a term extension rather than to have a monetary settlement for construction of concessions in the new Bradley West portion of TBIT. As a result, staff recommends that LAWA amend TCM Agreement LAA-8613 to extend the term by a total of three years for premises located in TBIT.
Staff also recommends a six-month extension for Terminal 2 premises as Westfield incurred a six-month delay in delivery of the space by LAWA. This delay arose from LAWA’s (1) request that Westfield develop of a total scope of work for the entirety of the Terminal 2 concourse, (2) goal of renovating the public space simultaneously with concession space, thereby inconveniencing the traveling public for the shortest possible period, and (3) objective of avoiding the problems inherent in having multiple overlapping contractors working jointly in one area.
Page 2
WESTFIELD CONCESSIONS.docx
While the term extension would eliminate any compensation claims by Westfield or its Concessionaires cause by LAWA’s contractors, the extension will result in LAWA receiving [**].
Action Requested
Staff requests the Board approve the First Amendment to TCM Agreement LAA-8613 and authorize the Executive Director to execute the Frist Amendment after approval as to form by the City Attorney and upon approval of City Council.
Fiscal Impact
Approving this amendment will result in no additional cost to LAWA and will generate a minimum of [**] in additional revenue to LAWA over the extension term.
4.Alternatives Considered
| ● | Take No Action or Monetary Payment to Settle all Claims |
Not amending TCM Agreement LAA-8613 to add term will result in protracted negotiations to settle delay and construction costs claims requiring LAWA to make a cash payment to Westfield and lose an additional [**] of guaranteed revenue.
APPROPRIATIONS:
Approval of this action will not require an appropriation of funds from LAWA’s Capital or Operating Budgets.
STANDARD PROVISIONS:
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The issuance of permits, leases, agreements, gate and space assignments, and renewals, amendments or extensions thereof, or other entitlements granting use of existing airport facilities or its operations is exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Article III, Class 1 (18) (c) of the Los Angeles City CEQA Guidelines. |
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This Agreement will be approved as to form by the City Attorney. |
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Actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of the Los Angeles City Charter Section 606. |
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Westfield is required by contract to comply with the provisions of the Living Wage Ordinance. |
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Procurement Services Division has reviewed this action (File #5124) and established the following ACDBE goals: Food/Beverage – 25%; Retail – 20%. Westfield proposed 25% ACDBE participation for Food/Beverage and 20% ACDBE participation for Retail. Westfield has achieved 49% participation for Food/Beverage and 35% participation for Retail to date. |
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WESTFIELD CONCESSIONS.docx
6. |
Westfield is required by contract to comply with the provisions of the Affirmative Action Program. |
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Westfield has been assigned Business Tax Registration Certificate number 0002573628-0001-4. |
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Westfield is required by contract to comply with the provisions of the Child Support Obligations Ordinance. |
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Westfield has approved insurance documents, in the terms and amounts required, on file with the Los Angeles World Airports. |
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This action is not subject to the provisions of Charter Section 1022 (Use of Independent Contractors). |
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Westfield has submitted the Contractor Responsibility Program Pledge of Compliance and will comply with the provisions of the Contractor Responsibility Program. |
12. |
Westfield must be determined by Public Works, Office of Contract Compliance to be in compliance with the provisions of the Equal Benefits Ordinance prior to execution of the Amendment. |
13. |
Westfield will be required to comply with the provisions of the First Source Hiring Program for all non-trade Airport jobs. |
14. |
Westfield has submitted the Bidder Contributions CEC Form 55 and will comply with its provisions. |
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WESTFIELD CONCESSIONS.docx
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No. LAA-8613A |
FIRST AMENDMENT TO LOS ANGELES INTERNATIONAL AIRPORT TERMINAL
COMMERCIAL MANAGEMENT CONCESSION AGREEMENT FOR THE TOM
BRADLEY INTERNATIONAL TERMINAL, TERMINAL 2 AND THE THEME
BUILDING AT LOS ANGELES INTERNATIONAL AIRPORT, LAA-8613 BETWEEN
THE CITY OF LOS ANGELES AND
WESTFIELD CONCESSION MANAGEMENT, LLC
This First Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for the Tom Bradley International Terminal, Terminal 2 and the Theme Building at Los Angeles International Airport, LAA-8613 between the City of Los Angeles and Westfield Concession Management, LLC (“First Amendment”), is made and entered into this 9th day of July, 2015, at Los Angeles, California by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (hereinafter referred to as “City”), acting by order of and through its Board of Airport Commissioners (hereinafter referred to as “Board”) and WESTFIELD CONCESSION MANAGEMENT, LLC, a Delaware limited liability company (hereinafter referred to as “TCM”).
RECITALS
WHEREAS, on March 1, 2012, City and TCM entered into the Los Angeles International Airport Terminal Commercial Management Concession Agreement for the Tom Bradley International Airport, Terminal 2 and the Theme Building at Los Angeles International Airport, LAA-8613 (hereinafter “Agreement”) dated; and
WHEREAS, TCM requested that the Theme Building be removed from the Agreement and the City has agreed; and
WHEREAS, the parties hereto desire to amend said Agreement.
NOW, THEREFORE, the parties hereto, for and in consideration of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties hereto, do mutually agree that the Agreement, BE AMENDED AS FOLLOWS:
Amendment Section 1.Effective December 1, 2013, any and all references to the Theme Building, including all exhibits referencing the Theme Building (such as Area 7) in the Agreement are hereby deleted. Accordingly, TCM has voluntarily relinquished any and all of its interests, rights, claims and privileges relating to the Theme Building and releases the City of any and all of its obligations under this Agreement related to the Theme Building. City releases TCM of any and all of its obligations under this Agreement relating to the Theme Building.
Amendment Section 2.Section 2.2 of the Agreement is hereby amended and restated to read in its entirety as follows:
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2.2 Primary Term. For purposes of this Agreement, the term “Primary Term” shall mean the period of time that TCM shall operate the Premises as the terminal commercial manager hereunder, which period shall commence for any given portion of the Premises on the Delivery Date for such portion of the Premises and shall end as to all portions of the Premises as follows (unless the term of this Agreement is sooner terminated in accordance with the provisions of this Agreement): (a) all portions of the Premises and any associated Storage Space contained within Terminal 2 shall end no later than July 31, 2029 (the “Terminal 2 Expiration Date”); and (b) all portions of the Premises then remaining (i.e., those portions within TBIT) shall end on January 31, 2032 (the “Remaining Premises Expiration Date”) and any associated Storage Space contained within TBIT shall end no later than the Remaining Premises Expiration Date. For purposes of this Agreement, the term “Expiration Date” shall mean the applicable of the Terminal 2 Expiration Date or the Remaining Premises Expiration Date, as the context so requires with reference to the Premises contained within Terminal 2 and the remainder of the Premises, respectively. Effective at 11:59 p.m. on the Terminal 2 Expiration Date, TCM shall relinquish any and all of its interests, rights, claims and privileges relating to all portions of the Premises within Terminal 2 (including, without limitation, all Areas and Units within Terminal 2) and the parties shall each release the other of any and all of their respective obligations under this Agreement related to such Premises and Terminal 2 occurring thereafter, except with respect to those obligations that accrued prior to the Terminal 2 Expiration Date and/or expressly surviving the expiration or earlier termination of the Agreement.
Amendment Section 3.Sections 2.2.1, 2.2.1.1, 2.2.1.2, 2.2.1.3 and 2.2.1.4 of the Agreement shall be null and void and of no further force or effect.
Amendment Section 4.The first sentence of Section 2.3 of the Agreement is hereby amended and restated to read in its entirety as follows:
Early Termination for Failure to Meet Performance Metrics. In addition to any other termination right of City granted under this Agreement, City shall have the right, exercisable by the Executive Director upon written notice to TCM (the “Early Termination Notice”), to terminate this Agreement (the “Early Termination”) effective on the Early Termination Expiration Date in the event that the Executive Director determines that TCM has failed to achieve any of the Performance Metrics (as defined in Section 2.3.2 below) for any two (2) consecutive Years (as defined in Section 4.1.1 below) during the Performance Metrics Measurement Period (as defined in Section 2.3.3 below); provided that the Executive Director shall deliver the Early Termination Notice to TCM on or before January 31, 2023.
Amendment Section 5.Section 2.3.1 of the Agreement is hereby amended and restated to read in its entirety as follows:
2.3.1 Early Termination Expiration Date. For purposes of this Agreement, the “Early Termination Expiration Date” shall mean January 31, 2025.
Amendment Section 6.Section 2.3.3 of the Agreement is hereby amended and restated to read in its entirety as follows:
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2.3.3 Performance Metrics Measurement Period. For purposes of this Agreement, the “Performance Metrics Measurement Period” shall mean the period beginning on January 1, 2016 and ending on December 31, 2022.
Amendment Section 7.Effective as of the date of the removal of the Theme Building from the Agreement, the first sentence of Section 4.1.2.3. of the Agreement is hereby amended and restated to read in its entirety as follows:
4.1.2.3[**]
Amendment Section 8.The following is hereby added as Section 4.1.2.5 to the Agreement:
4.1.2.5[**]
Amendment Section 9.The following is hereby added as Section 3.2.1 to the Agreement:
3.2.1Services of TCM. TCM is to include in the Business and Operations Plan for each Year, identification of any Custom Architectural Features (including but not limited to specialty lighting, furniture and fixtures) installed by TCM and acquired by City as Initial Non-Premises Improvements (“Custom Architectural Features”), which Custom Architectural Features are not maintained by City in the normal course of business. Subject to and in accordance with the terms and conditions herein stated, and so long as City approves the appropriate budget to do so, and subject at all times to such procedures and directions as are set forth in this Agreement, TCM shall do all of the following:
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(a)Budgets. Budgets for the maintenance and operation of the Custom Architectural Features shall be implemented, as follows:
(i)TCM acknowledges that City will have a fiscal year beginning on July 1 and ending the following June 30 (each a “Fiscal Year”). Promptly following the execution of the First Amendment, TCM shall prepare and deliver to LAWA a proposed budget for the period commencing on the execution date of the First Amendment and ending on June 30, 2015. Such proposed budget shall be in a format to be designated by TCM (the “Approved Budget Format”), provided that the Approved Budget Format shall set forth in reasonable detail and on a monthly basis, (i) an itemized statement of the estimated disbursements for such period, including but not limited to all normal maintenance and operating costs and employee salaries and similar items if TCM employees are used for the maintenance and operation of the Custom Architectural Features, and (ii) the scope of TCM’s work with respect to the items to be maintained and the type and frequency of maintenance required. TCM shall cooperate with City to review and modify the proposed budget, as may reasonably be required by City, and the parties shall act diligently and in good faith to cause the proposed budget, as so modified, to be approved in a reasonable timeframe prior to the start of the next fiscal year. Upon City’s approval, the proposed budget shall become the Approved Budget. Notwithstanding anything to the contrary contained herein, TCM shall not be required to perform any repairs or maintenance in accordance with this Section 3.2.1 until City has formally approved the proposed budget for the upcoming Fiscal Year.
(ii)As to all future Approved Budgets, at least sixty (60) days prior to the commencement of each Fiscal Year, so long as this Agreement is in effect, TCM shall prepare and deliver to City a proposed budget which, after approval by City, shall be deemed the Approved Budget for such Fiscal Year. Each proposed budget shall be in the Approved Budget Format.
(iii)TCM shall be entitled to deduct the amount of reimbursement for the verified actual costs of the aforementioned maintenance and repair work against Base Rent, in an amount up to, but not to exceed the amount in the Approved Budget. TCM shall not have any responsibility for any additional expenditures over and above the Approved Budget.
(iv)LAWA shall have sole discretion to decide whether or not to approve a budget and shall not be under any obligation to approve a proposed budget for the Custom Architectural Features. If City has not approved a proposed budget for the Custom Architectural Features in accordance with the terms hereof prior to the first day of the Fiscal Year to which such proposed annual budget is to apply, TCM shall not repair and maintain the Custom Architectural Features until such date the proposed annual budget for the Custom Architectural Features is approved by City.
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(b)Maintenance. TCM shall maintain or cause to be maintained the Custom Architectural Features at City’s expense, provided that no maintenance expense, repairs or alterations which are not provided for within the Approved Budget or otherwise specifically permitted pursuant to the terms and conditions of this Agreement shall be undertaken without the prior written consent of City. TCM shall repair and maintain the Custom Architectural Features in the best interests of City. TCM warrants that the work hereunder shall be performed and completed diligently, in good faith and in an efficient manner consistent with professional standards practiced among those in the industry doing the same or similar work under the same or similar circumstances. TCM further warrants that all goods and materials furnished in connection with Custom Architectural Features will be new and of good quality and that all workmanship will be of good quality, free from faults and defects.
Amendment Section 10.The third sentence of Section 4.1.3 of the Agreement (which contains the definition of the term Contingent Percentage Rent) is hereby amended and restated to read in its entirety as follows:
[**]
Amendment Section 11.The following is hereby added as Section 4.1.3.2 to the Agreement:
4.1.3.2 [**]
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Amendment Section 12.The following is hereby added as Section 4.1.3.3 to the Agreement:
4.1.3.3[**]
Amendment Section 13.The following is hereby added as Section 4.1.3.4 to the Agreement:
4.1.3.4[**]
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Amendment Section 14.The following is hereby added as Section 4.1.3.5 to the Agreement:
4.1.3.5[**]
Amendment Section 15.The following is hereby added as Section 4.8.4 to the Agreement:
4.8.4[**]
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Amendment Section 16.The following is hereby added as Section 4.10.6 to the Agreement:
4.10.6[**]
Amendment Section 17.The following is hereby added as Section 4.11.4 to the Agreement:
4.11.4[**]
Amendment Section 18.Section 7.6 of the Agreement is hereby amended and restated to read in its entirety as follows:
7.6Mid-Term Refurbishment. TCM shall plan for and cause the completion of the refurbishment of the Premises in the manner set forth in this Section 7.6 (the “Mid-Term Refurbishment”) no later than June 30, 2025 (the “Mid-Term Refurbishment Completion Date”). The Executive Director shall have the discretion to defer the timing of the Mid-Term Refurbishment.
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Amendment Section 19.The first sentence in Section 7.6.1 of the Agreement is hereby amended and restated to read as follows:
Mid-Term Refurbishment Plan. No later than June 30, 2024, TCM shall prepare and deliver to City for Executive Director’s review and approval a Mid-Term Refurbishment plan (the “Mid-Term Refurbishment Plan”), which shall meet the then-current requirements imposed by City as part of the Construction Approval Process, and shall otherwise include information similar to that contained in the Definitive Improvement Plan for the TCM Initial Premises Improvements and Concessionaire Initial Premises Improvements.
Amendment Section 20.Section 8.9 is hereby amended and restated to read in its entirety as follows:
8.9Prevailing Wage. Maintenance work performed on City’s property will require payment of prevailing wages, if applicable. TCM is obligated to make the determination of whether the payment of prevailing wages is applicable. TCM shall be bound by and comply with applicable provisions of the California Labor Code and federal, state, and local laws related to labor, including, but not limited to, assuming all obligations and responsibilities under the California Labor Code related to prevailing wages, apprenticeship and recordkeeping that requires compliance by the contracting or awarding agency or body (i.e., City) when work requires payment of prevailing wages under the applicable federal or California law. TCM shall obtain the applicable wage determination for each craft, classification or worker, which are on file at the Office of Contract Compliance, Bureau of Contract Administration, in the City of Los Angeles, or may be obtained from the California Department of Industrial Relations. TCM shall indemnify, defend and pay or reimburse City for any damages, penalties or fines (including, but not limited to, attorney’s fees and costs of litigation) that City incurs, or pays, as a result of noncompliance with applicable prevailing wage and apprenticeship laws in connection with the maintenance work performed in connection with this Agreement.
Amendment Section 21.The Basic Information of the Agreement is hereby amended and restated to conform with the provisions of this First Amendment, to the extent that the provisions in the Basic Information have been modified by the provisions of this First Amendment.
Amendment Section 22.The 2015 Business and Operations Plan of the Agreement shall be submitted to conform with the provisions of this First Amendment, to the extent that the provisions in the 2015 Business and Operations Plan should be modified in accordance with the provisions of this First Amendment.
Amendment Section 23.As a material inducement to City’s entering into this First Amendment, TCM hereby represents and covenants to City, to the best of TCM’s knowledge, without independent inquiry, as follows: (1) City is not in default in the performance of City’s obligations under the terms and provisions of the Agreement with respect to the High Priority Areas; (2) except with respect to Area 4C, City has duly delivered the Premises to TCM; (3) with respect to the High Priority Areas, there exists no unresolved disputes or claims by TCM for items related to the initial construction or capital expenditure which are completed or expended by TCM with respect to TCM Initial Premises Improvements and Initial Non-Premises Improvements, for which City is liable or obligated to pay for or to perform in connection with the Agreement; (4) TCM has no claims, setoffs or credits against the payment of Rent payable under the Agreement with respect to the High Priority Areas; and (4) City shall be entitled to rely on the accuracy of the foregoing representation and covenants, and TCM hereby releases City from any claims relating to the foregoing matters as they relate to the High Priority Areas.
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Amendment Section 24.Except as specifically provided herein, this First Amendment shall not in any manner alter, change, modify, or affect any of the rights, privileges, duties, or obligations of either of the parties hereto, under, or by reason of said Agreement, as amended.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, City has caused this First Amendment to be executed on its behalf by the Executive Director, or his or her authorized signatory, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
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January 20, 2015 |
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7/9/15 |
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January 9, 2015 |
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ACKNOWLEDGEMENT OF GUARANTOR
The undersigned, Westfield America, Inc., a Missouri corporation (herein, “Guarantor”), hereby represents, acknowledges, and agrees as follows: (1) Guarantor has reviewed the foregoing First Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for the Tom Bradley International Airport, Terminal 2 and the Theme Building at Los Angeles International Airport, LAA-8613 between the City of Los Angeles and Westfield Concession Management, LLC (“TCM”) dated March 1, 2012 (the “First Amendment”), concerning the amendment of the Los Angeles International Airport Terminal Commercial Management Concession Agreement for the Tom Bradley International Airport, Terminal 2 and the Theme Building at Los Angeles International Airport, LAA-8613 (hereinafter “Agreement”); (2) Guarantor is the guarantor of TCM’s obligations under the Agreement pursuant to that certain Guaranty Agreement executed concurrently with the execution of the Agreement (the “Guaranty”); (3) Guarantor approves of TCM’s execution of the First Amendment and agrees with its terms; and (4) the Guaranty is hereby reaffirmed, and the Guaranty is and remains in full force and effect and continues to guarantee the prompt payment and performance by TCM of all of the terms of the Agreement as amended and modified by the First Amendment. This Acknowledgement of Guarantor has been executed as of the date of execution of the First Amendment by TCM.
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.19.2
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Board File |
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No. LAA-8613B |
SECOND AMENDMENT TO LOS ANGELES INTERNATIONAL AIRPORT
TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT FOR
THE TOM BRADLEY INTERNATIONAL TERMINAL AND TERMINAL 2 AT LOS
ANGELES INTERNATIONAL AIRPORT BETWEEN THE CITY OF LOS ANGELES
AND WESTFIELD AIRPORTS, LLC CONCERNING THE AMENDMENT OF LAA-
8613
This Second Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2 and the Tom Bradley International Terminal at Los Angeles International Airport, between the City of Los Angeles and Westfield Airports, LLC (“Second Amendment”), is made and entered into this 3rd day of June, 2016, at Los Angeles, California by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (hereinafter referred to as “City”), acting by order of and through its Board of Airport Commissioners (hereinafter referred to as “Board”) and WESTFIELD AIRPORTS, LLC (“Westfield” or “TCM”), a Delaware limited liability company, concerning the amendment of the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2 and the Tom Bradley International Terminal (“TBIT”), LAA-8613, dated March 1, 2012, between the City and TCM.
RECITALS
WHEREAS, on March 1, 2012, City and TCM entered into the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2 and TBIT, LAA-8613 (“Agreement”); and
WHEREAS, Westfield currently occupies space in Terminal 2 and TBIT pursuant to the Agreement; and
WHEREAS, Section I of the Agreement requires Westfield to make certain improvements in Terminal 2 and TBIT; and Amendment Section 2.All addresses in the Agreement referring to 11601 Wilshire Blvd., 11th Floor, Los Angeles, California 90025 for Westfield, are hereby deleted and amended as follows: 2049 Century Park East 41st Floor, Los Angeles, CA 90067.
WHEREAS, a First Amendment to the Agreement was entered into on July 9, 2015 (“First Amendment”); and
WHEREAS, the City was notified by letter that Westfield Concession Management, LLC, a Delaware limited liability company, changed its corporate name to Westfield Airports, LLC, a Delaware limited liability company, and the City consented to such name change; and
WHEREAS, the parties hereto desire to amend said Agreement,
NOW, THEREFORE, the parties hereto, for and in consideration of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties hereto, do mutually agree that the Agreement, BE AMENDED AS FOLLOWS:
1
Amendment Section 1.All references in the Agreement to “Westfield Concession Management, LLC” are hereby amended to state “Westfield Airports, LLC” (hereinafter referred to as “TCM”).
Amendment Section 3.Section 1.1 of the Agreement is hereby amended and restated to read in its entirety as follows:
1.1TCM’s Obligations During Pre-Term Development Phase. Commencing on March 1, 2012 (the “Effective Date”) in the written notification from the Executive Director of the Department of Airports of the City of Los Angeles (or the person or persons designated by the Executive Director to take a specified action on behalf of the Executive Director) (collectively herein, the “Executive Director”), TCM shall, at TCM’s sole cost and expense and to the full satisfaction of the Executive Director, be responsible for the planning, design and development of the food & beverage, retail, and certain other concession spaces in specified locations in the Tom Bradley International Terminal (including the Bradley West Modernization area which is a part thereof) and Terminal 2, all as more particularly identified in this Agreement and as more particularly set forth below. The Tom Bradley International Terminal (including the Bradley West Modernization area which is a part thereof) is sometimes referred to in this Agreement as “TBIT.” TBIT and Terminal 2 are sometimes individually referred to herein as a “Facility” and are sometimes collectively referred to herein as the “Facilities.”
Amendment Section 4.Section 2.2 of the Agreement, which was amended and restated in the First Amendment, is hereby amended and restated to read in its entirety as follows:
2.2For purposes of this Agreement, the term “Primary Term” shall mean the period of time that TCM shall operate the Premises as the terminal commercial manager hereunder, which period shall commence for any given portion of the Premises on the Delivery Date for such portion of the Premises and any associated Storage Space within TBIT and Terminal 2 shall end as to all portions of the Premises on the Expiration Date (unless the term of this Agreement is sooner terminated in accordance with the provisions of this Agreement). For purposes of this Agreement, the term “Expiration Date” shall mean January 31, 2032. No delay in the processing of any Definitive Improvement Plan or delay in the Delivery Date of any portion of the Premises shall extend the Expiration Date, except as expressly provided in Section 2.2.1 of the Agreement. TCM acknowledges and agrees that TCM has absolutely no rights under this Agreement to extend the Primary Term, except as expressly provided in Section 2.2.1 below.
Amendment Section 5.Section 4.1.2.5 of the Agreement (which was added in the First Amendment) is hereby deleted in its entirety.
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Amendment Section 5.Section 4.1.3.2 of the Agreement (which was added in the First Amendment) is hereby deleted in its entirety.
Amendment Section 6.Section 4.1.3.5 of the Agreement (which was added in the First Amendment) is hereby deleted in its entirety.
Amendment Section 7.Section 4.8.4 of the Agreement (which was added in the First Amendment) is hereby deleted in its entirety.
Amendment Section 8.Section 4.10.6 of the Agreement (which was added in the First Amendment) is hereby deleted in its entirety.
Amendment Section 9.Section 4.11.4 of the Agreement (which was added in the First Amendment) is hereby deleted in its entirety.
Amendment Section 10.The Basic Information of the Agreement is hereby amended and restated to conform with the provisions of this Second Amendment, to the extent that the provisions in the Basic Information have been modified by the provisions of this Second Amendment.
Amendment Section 11.The applicable Business and Operations Plan of the Agreement shall be submitted to conform with the provisions of this Second Amendment, to the extent that the provisions in the applicable Business and Operations Plan should be modified in accordance with the provisions of this Second Amendment.
Amendment Section 12.Section 16.45 (“City Approval”) of the Agreement is hereby amended and restated to read in its entirety as follows:
Section 16.45 City Approval. Following the execution and delivery of this Agreement, whenever this Agreement calls for a matter to be approved or disapproved by or on behalf of City, then the written approval, disapproval, or consent of the Executive Director within the legal authority of the Executive Director, subject to the approval of the Office of the City Attorney as to form, if required, shall constitute the approval, disapproval, or consent of City; provided, however, if the approval or consent by City is in excess of the Executive Director’s legal authority, then such matter shall be approved by the Board. Except as otherwise expressly set forth in this Agreement, with respect to any matter that is subject to the approval or consent of the Executive Director or the Board, such approval or consent may be given or withheld in the Executive Director’s or the Board’s sole and absolute discretion. Any approvals or consents required from or given by City under this Agreement shall be approvals of the City of Los Angeles Department of Airports acting as the owner and operator of the Airport, and shall not relate to, constitute a waiver of, supersede or otherwise limit or affect the rights or prerogatives of the City of Los Angeles as a government, including the right to grant or deny any permits required for construction or maintenance of the Premises and the right to enact, amend or repeal laws and ordinances, including, without limitation, those relating to zoning, land use, and building and safety. No approval or consent on behalf of City will be deemed binding upon City unless approved in writing as to form by the City Attorney when such approval is required.
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Amendment Section 13.Section 6.1.1 is hereby added to the Agreement to read as follows:
6.1.1Subsequent Concession Agreement or Contract Covered by 49 CFR Part 23. TCM agrees to include the following statement in any subsequent concession agreement or contract covered by 49 CFR part 23, that it enters and cause those businesses to similarly include the statement in further agreements: “This Agreement is subject to the requirements of the U.S. Department of Transportation’s regulations, 49 CFR part 23. TCM agrees that it will not discriminate against any business owner because of the owner’s race, color, national origin, or sex in connection with the award or performance of any concession agreement, management contract, or subcontract; purchase or lease agreement, or other agreement covered by 49 CFR part 23.”
Amendment Section 14.As a material inducement to City’s entering into this Second Amendment, TCM hereby represents and covenants to City, to the best of TCM’s knowledge, without independent inquiry, as follows: (1) City is not in default in the performance of any of the terms or provisions of the Agreement; (2) City has duly delivered the Premises to TCM in accordance with the terms of the Agreement, except as provided in this Second Amendment, and there exists no unresolved disputes or claims by TCM for items related to the initial construction or capital expenditure which are completed or expended by TCM with respect to TCM Initial Premises Improvements and Initial Non-Premises Improvements for which City is liable or obligated to pay for or to perform in connection with the Agreement; (3) TCM neither has nor claims any setoffs or credits against the payment of Rent payable under the Agreement; and (4) City shall be entitled to rely on the accuracy of the foregoing representation and covenants, and TCM hereby releases City from any claims relating to the foregoing matters.
Amendment Section 15.For clarification, the exhibit for the Storage Space Addendum (Exhibit E) of the Agreement is hereby replaced with the attached document, upon date on which this Second Amendment is entered.
Amendment Section 16.The first paragraph of Section 3.2.1 to the Agreement (preceding subsection “a. Budget”) is hereby amended and restated to read in its entirety as follows:
3.2.1 Services of TCM. TCM is to include in the Business and Operations Plan for each Year, identification of any Custom Architectural Features (including but not limited to specialty lighting, furniture and fixtures) installed by TCM and acquired by City or installed by TCM pursuant to the Agreement, and that are in City’s Common Areas, as Initial Non-Premises Improvements (“Custom Architectural Features”), where City employees are not able to maintain or operate such Custom Architectural Features in the normal course of business, as itemized in writing by the Deputy Executive Director (or his/her designee) of the department responsible for such maintenance and operation, and if determined by the same to be an exception to the competitive bidding process under Charter Code Section 371(e)(10). Subject to and in accordance with the terms and conditions herein stated, and so long as City approves the appropriate budget to do so, and subject at all times to such procedures and directions as are set forth in this Agreement, TCM shall do all of the following:
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Amendment Section 17.Except as specifically provided herein, this Second Amendment shall not in any manner alter, change, modify, or affect any of the rights, privileges, duties, or obligations of either of the parties hereto, under, or by reason of said Agreement, as amended.
IN WITNESS WHEREOF, City has caused this Second Amendment to be executed on its behalf by the Executive Director, or his or her authorized signatory, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
APPROVED AS TO FORM: |
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CITY OF LOS ANGELES |
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Michael N. Feuer, City Attorney |
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Deputy/Assistant City Attorney |
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Department of Airports |
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5/3/2016 |
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6/3/16 |
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Deputy Executive Director, Comptroller |
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a Delaware limited liability company |
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5
Storage Space Addendum Exhibit
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STORAGE SPACE ADDENDUM
THIS STORAGE SPACE ADDENDUM (this “Addendum”) is made as of, 2016, by and between the CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (“City”), acting by order of and through its Board of Airport Commissioners (“Board”), and WESTFIELD AIRPORTS, LLC, a Delaware limited liability company, f/k/a Westfield Concession Management, LLC (“TCM”), and upon execution and delivery of this Addendum by Executive Director shall become a part of that certain Los Angeles International Airport Terminal Commercial Management Concession Agreement (Tom Bradley International Terminal and Terminal 2), LAA-8613 dated as of March 1, 2012, by and between City and TCM with respect to the Premises (as defined therein) (the “Concession Agreement”).
2.Lease of Storage Space. In consideration of the payment of Storage Rent (hereinafter defined) and keeping and performance of the covenants and agreements by TCM as set forth in this Addendum and in the Concession Agreement, City leases to TCM a total of approximately square feet of storage space (the “Storage Space”), as shown on the chart and drawing, both of which are attached to this Addendum as Exhibit A.
3.Term of Storage Space Addendum. TCM’s right to use the Storage Space will commence on , 2016 and terminate the earlier of (a) upon thirty (30) days’ prior written notice from either City or TCM to the other, or (b) the concurrent expiration or earlier termination of the Concession Agreement. City may, in the sole and reasonable discretion of the Executive Director, consider taking back portions of the Storage Space, provided however, such portions are in leasable, useable condition as determined in the sole discretion of the Executive Director. TCM shall use its best efforts to lease the Storage Space prior to requesting City to consider taking back of said space. In the event of such take back, TCM must provide City sixty (60) days’ prior written notice of its request. Notwithstanding anything provided in the Concession Agreement or otherwise, TCM shall not be entitled to any compensation or reimbursement in connection with such relocation or take back (including without limitation, any compensation or reimbursements for moving expenses, or for alterations or improvements made to the Storage Space). In connection with the expiration or earlier termination of this Addendum, TCM shall remove any and all goods, furniture, equipment, files, supplies and other personal property from the Storage Space, whether or not belonging to TCM, and shall surrender the Storage Space in substantially the same condition as received by TCM.
4.Storage Rent. TCM shall pay, as a monthly base rent for the Storage Space, the Terminal Buildings Charge under the Los Angeles International Airport Passenger Terminal Tariff, as Amended (“Base Storage Rent”). The Base Storage Rent described in this Section 4 is subject to annual adjustment by the Board, and TCM shall pay the Base Storage Rent based on the then Board-approved rates.
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4.1.Terminal Buildings Charge. The Base Storage Rent shall be calculated for each calendar month in an amount equal to the Terminal Buildings Rate in effect for the month multiplied by the square footage of the Storage Space. If adjustments to the Terminal Buildings Rate are adopted by the Board retroactive to an effective date established by the Board, the adjustments shall be applied retroactively to said effective date and TCM shall be responsible for retroactive payment of any increased amounts due.
4.2.The Storage Rent is all inclusive and includes utilities, taxes, maintenance, and repair. For purposes of this Addendum, “Storage Rent” shall mean Base Storage Rent and all additional charges (if any) payable to City hereunder. All Storage Rent will be payable in advance, without notice, on or before the first day of each month during the term of this Addendum, at the place designated in the Basic Information of the Concession Agreement for the payment of Rent, or at such place as City may from time to time designate in writing. TCM acknowledges that the Storage Rent does not include TCM’s payment of City’s Occupancy Tax, which may be adjusted from time to time by the City Council.
5.Use of Storage Space. TCM will require its concessionaires to use the Storage Space in a careful, safe and proper manner, in accordance with all applicable Laws and any Rules and Regulations. TCM agrees to be fully liable for any damages or losses sustained by City as a result of any overloading by TCM. TCM will pay City as Additional Storage Rent on demand for any damage to the Storage Space caused by misuse or abuse by TCM, its agent or employees, or any other person entering the Storage Space. TCM will not commit waste nor permit waste to be committed nor permit any nuisance in the Storage Space.
6.Lighting; Electricity. City agrees, during the term of this Addendum, to furnish and provide such electric lighting service to and such ingress and egress from the Storage Space during ordinary business hours as may, at the judgment of the City, be reasonably required for the use and occupancy of the Storage Space pursuant to the terms of this Addendum. TCM agrees that City will not be liable for failure to provide such lighting service or ingress and egress during any period when City uses reasonable diligence to supply them. City reserves the right temporarily to discontinue electric service, or ingress or egress, at such times as may be necessary when City is unable to provide them by reason of accident, unavailability of employees, repairs, alterations or improvements, or whenever by reason of strikes, walkouts, riots, acts of God, or any other happening beyond the control of City. City will be under no obligation to furnish heating or air conditioning service to the Storage Space. City will have the right to enter the Storage Space to examine and inspect it as provided in the Concession Agreement and to require the removal of any object or material City deems hazardous to the safety or operation of the Terminal or building in which the Storage Space is located.
7.TCM Contacts. TCM will provide City a list of TCM’s appointed representatives and their telephone numbers for the Storage Space. TCM may, from time to time, change the individuals who are designated as TCM’s representatives by written notice to City of any such change. City will contact TCM’s representative only to obtain access to the Storage Space. TCM will place signs identifying the location and telephone number for TCM representative on each Storage Space.
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8.Storage at TCM’s Risk; Condition of Storage Space. TCM agrees that any and all property, whether or not belonging to TCM, kept or stored in the Storage Space will be at the sole risk of TCM and that City will not be liable for any injury or damage to such property, except to the extent caused by the sole negligence or intentional misconduct of City or City Agents in accordance with the applicable terms and provisions of the Concession Agreement. TCM will carry and maintain, at TCM’s expense, or cause its concessionaires to carry and maintain, at the respective concessionaire’s expense, insurance covering all property stored in the Storage Space. Taking possession of the Storage Space by TCM for itself or its concessionaires will be conclusive evidence that the Storage Space was in the condition agreed upon between City and TCM and acknowledgment by TCM that it accepts the Storage Space in its then “as-is, where is” condition, “with all faults,” and without any further improvement by City.
9.Applicability of the Concession Agreement. Except to the extent specifically provided otherwise in this Addendum, the provisions of the Concession Agreement shall be applicable to the Storage Space and this Addendum, including but not limited to the “City Held Harmless” provision in Section 13.2, as if they were specifically set forth in this Addendum. During the term of this Addendum, references in the Concession Agreement to the “Premises” will be deemed to refer to the “Storage Space,” unless the context clearly indicates otherwise. In the event of any express conflict between the provisions of the Concession Agreement and the provisions of this Addendum, the provisions of this Addendum shall control.
10.Cross-Default. Any default by TCM in the performance of TCM’s obligations under this Addendum will also be a default under the Concession Agreement.
11.Improvements to Storage Space; Relocation and Partial Termination. TCM shall not make, or allow or permit, any alterations or improvements to the Storage Space without the prior written consent of City and compliance with the applicable provisions of the Concession Agreement. City expressly reserves the rights (a) to relocate the Storage Space to such other storage area as may be designated by City, or (b) to partially terminate this Addendum with respect to any portion of the Storage Space upon not less than thirty (30) days prior written notice to TCM. Notwithstanding anything to the contrary provided in the Concession Agreement or otherwise, TCM shall not be entitled to any compensation or reimbursement in connection with such relocation or partial termination (including, without limitation, any compensation or reimbursements for moving expenses, or for alterations or improvements made to the Storage Space); provided, however, the Storage Rent shall be equitably adjusted in connection with any reduction in the Storage Space.
12.Counterparts. This Addendum may be executed in counterparts, but shall become effective only after each party has executed a counterpart hereof; all said counterparts when taken together, shall constitute the entire single agreement between the parties.
[Signatures on next page]
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IN WITNESS WHEREOF, City has caused this Addendum to be executed on its behalf by Executive Director and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
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MICHAEL N. FEUER, |
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WESTFIELD AIRPORTS, LLC |
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EXHIBIT A
STORAGE SPACE CHART & DRAWING
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ACKNOWLEDGEMENT OF GUARANTOR
The undersigned, Westfield America, Inc., a Missouri corporation (herein, “Guarantor”), hereby represents, acknowledges, and agrees as follows: (1) Guarantor has reviewed the foregoing Second Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2 and TBIT, between the City of Los Angeles and Westfield Airports, LLC, formerly known as Westfield Concession Management, LLC (“TCM”) (the “Second Amendment”), concerning the amendment of the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2 and TBIT, LAA-8613, dated March 1, 2012, between the City of Los Angeles and TCM (hereinafter “Agreement”); (2) Guarantor is the guarantor of TCM’s obligations under the Agreement pursuant to that certain Guaranty Agreement executed concurrently with the execution of the Agreement (the “Guaranty”); (3) Guarantor approves of TCM’s execution of the Second Amendment and agrees with its terms; and (4) the Guaranty is hereby reaffirmed, and the Guaranty is and remains in full force and effect and continues to guarantee the prompt payment and performance by TCM of all of the terms of the Agreement as amended and modified by the Second Amendment. This Acknowledgement of Guarantor has been executed as of the date of execution of the Second Amendment by TCM.
“GUARANTOR”
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WESTFIELD AMERICA, INC. |
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.19.3
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BOARD FILE NO. LAA-8613C |
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RESOLUTION NO. 26355 |
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LAX Van Nuys City of Los Angeles Eric Garcetti Board of Airport Sean O. Burton President Valeria C. Velasco Vice President Jeffery J. Dear Gabriel L. Eshaghian Beatrice C. Hsu Thomas S. Sayles Dr. Cynthia A. Telles Deborah Flint Chief Executive Officer
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BE IT RESOLVED that the Board of Airport Commissioners approved Third Amendment to Terminal Commercial Management Concession Agreement LAA-8613 with Westfield Airports, LLC at Los Angeles International Airport to add up to 30,000 square feet of concession space in the Midfield Satellite Concourse to the premises, as referenced in the Board-adopted staff report attached hereto and made part hereof; and BE IT FURTHER RESOLVED that the Board of Airport Commissioners authorized the Chief Executive Officer to execute the Third Amendment to Terminal Commercial Management Concession Agreement LAA-8613 with Westfield Airports, LLC upon approval as to form by the City Attorney and approval of the Los Angeles City Council; and BE IT FURTHER RESOLVED that this contract is exempt from City Charter Section 371(e)(10), and that City Charter Section 372 is satisfied in that a competitive proposal is not reasonably practicable and compatible with the City’s interest; and BE IT FURTHER RESOLVED that the issuance of permits, leases, agreements, gate and space assignments, and renewals, amendments or extensions thereof, or other entitlements granting use of existing airport facilities or its operations is exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Article III Class 1(18)(c) of the Los Angeles City CEQA Guidelines; and BE IT FURTHER RESOLVED that actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606. o0o I hereby certify that this Resolution No. 26355 Sandra J. Miller — Secretary BOARD OF AIRPORT COMMISSIONERS Approved by City Council on November 8, 2017 |
1 World Way Los Angeles California 90045-5803 Mail P.O. Box 92216 Los Angeles California 90009-2216 Telephone 310 646 5252 Internet www.lawa.aero
SUBJECT: Approval of a Third Amendment to the Terminal Commercial Management Concession Agreement with Westfield Airports, LLC at Los Angeles International Airport
Approve the Third Amendment to the Terminal Commercial Management Concession Agreement LAA-8613 with Westfield Airports, LLC at Los Angeles International Airport to add up to 30,000 square feet of concession space in the Midfield Satellite Concourse to the Premises and generate a minimum of [**]
RECOMMENDATIONS:
Management RECOMMENDS that the Board of Airport Commissioners:
| 1. | ADOPT the Staff Report. |
| 2. | DETERMINE that this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Article III, Class 1 (18)(c) of the Los Angeles City CEQA Guidelines. |
| 3. | APPROVE the Third Amendment to Terminal Commercial Management Concession Agreement LAA-8613 with Westfield Airports, LLC. |
| 4. | FIND that this contract is exempt from City Charter Section 371(e)(10), and that City Charter Section 372 is satisfied in that a competitive proposal is not reasonably practicable and compatible with the City’s interest. |
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Westfield 3rd Amendment (LAA- 8613): MSC
| 5. | AUTHORIZE the Chief Executive Officer to execute the Third Amendment to Terminal Commercial Management Concession Agreement LAA-8613 with Westfield Airports, LLC upon approval as to form by the City Attorney and approval of the Los Angeles City Council. |
DISCUSSION:
1. |
Purpose |
Provide concession services in the Midfield Satellite Concourse (MSC) of the Tom Bradley International Terminal (TBIT).
2. |
Prior Related Actions |
| ● | January 23, 2012 - Board Resolution 24670 |
The Board of Airport Commissioners (Board) approved the award of Terminal Commercial Manager (TCM) Concession Agreement No. LAA-8613 (Agreement) to Westfield Concession Management, LLC (Westfield) for a term of 17-years, comprised of a two-year development period and a 15-year operating period, that required Westfield to develop, lease, and manage convenience retail, specialty retail, food and beverage, and certain passenger services in TBIT and Terminal 2, plus an option to redevelop the Theme Building.
| ● | January 15, 2015 - Board Resolution 25616 |
The Board approved the First Amendment to the Agreement to extend the term for premises in TBIT by three years and at Terminal 2 for six months, and remove the option to redevelop the Theme Building. On November 19, 2015, Los Angeles World Airports (LAWA) consented to TCM’s name change from Westfield Concession Management, LLC to Westfield Airports, LLC.
| ● | April 21, 2016 — Board Resolution 25936 |
The Board approved the Second Amendment to the Agreement to extend the term for the premises in Terminal 2 for two years and six months, added the maintenance of Custom Architectural Features, and updated administrative terms.
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Current Action |
The MSC is being developed as a new concourse connected to TBIT and located to the west of existing TBIT concourses. Construction activities for the MSC began on February 27, 2017, and is planned to open at the end of fourth quarter 2019. The new concourse will have 750,000 square-feet of public area and hold room space, 12 new gates and approximately 45,400 square-feet of concession space. The airlines that will operate in the MSC and the resulting international and U.S. domestic passenger mix is still being determined.
As a part of the facilities, the following concession spaces are planned:
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Westfield 3rd Amendment (LAA- 8613): MSC
There is currently unoccupied and unreserved Food and Beverage and Retail concession space totaling approximately 30,000 square feet within the MSC. The Third Amendment amends the Agreement to add this space to Westfield’s premises. The Third Amendment would also add up to 8,500 square feet of Food & Beverage Seating, which will be common area space, maintained by Westfield, in which passengers can sit, dine, rest and relax.
LAWA evaluated whether a competitive bidding process was reasonably practicable and compatible with the City’s interest and found that the use of competitive bidding would be undesirable and impractical, consistent with Los Angeles City Charter Sections 371 (e)(10) and 372. Adding the MSC space to the Agreement premises will result in less cost to LAWA for development, ongoing maintenance and concession operations and staffing resources. As described below, Westfield has agreed to take up to 30,000 square feet without raising the current management fee or deducting the $[**] improvement allowance, i.e. no additional cost to LAWA, but accepting the minimum annual guarantee per square foot for the additional space. Furthermore, including Westfield in the initial MSC planning and development leverages the specific value-add benefits of the TCM model for recommendations on the design, retail category mix and concession seating opportunities.
Moreover, staff expects Westfield to implement concept, financial and operational strategies that will provide a balance between the new MSC and the existing TBIT concessionaires, given that a majority of all passengers will flow through the TBIT core prior to reaching the MSC. Westfield will have the operational flexibility between the MSC and TBIT facilities to create efficiencies and make adjustments to the sales strategy during the entire passenger journey. Uncertainty about airlines that will use the MSC gates and the resulting undefined future sales in the MSC may cause concessionaires, including small/new entrant businesses, to be reluctant to invest required capital in MSC locations. The TCM model allows flexibility in modeling concession agreements, giving Westfield the tools to design agreements that provide more certainty to concessionaires, in particular to small/ACDBE businesses and new entrants, reducing risk and encouraging investment and development in the MSC. In addition, not all locations are required to be opened initially to allow for construction and openings to be phased appropriately and provide better revenue results and guest experience as the terminal becomes more populated.
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Westfield 3rd Amendment (LAA- 8613): MSC
Action Requested
Staff requests the Board approve the Third Amendment to the Agreement and authorize the Chief Executive Officer to execute the Third Amendment after approval as to from by the City Attorney and upon approval by the Los Angeles City Council.
Fiscal Impact
Approving this Amendment will result in no additional cost to LAWA and will generate a minimum of [**] in additional revenue per year and approximately [**] in additional revenue over the term.
4.Alternatives Considered
| ● | Select a TCM for the MSC using a competitive process |
Base building development for the MSC began ground construction in February 2017. The base building team stressed the urgency of having coordination discussions by the second quarter of 2017 to ensure uniform and complimentary planning. Going through a competitive bid process would delay coordination activities for at least nine months and additional delays are foreseen for new developers or concessionaries due to lack of familiarity with the City process and diminished ability to navigate a complicated construction process. An amendment of the Westfield TCM Agreement, to include the MSC, will ensure that critical development and operation timelines are met resulting in time and cost savings to LAWA.
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Westfield 3rd Amendment (LAA- 8613): MSC
| ● | Award direct agreements for each concession unit at the MSC |
Awarding direct agreements to individual concessionaires at the MSC will result in time delays, additional cost and diminished ability of LAWA to provide a cohesive concessions program at TBIT. This option will increase the investment risk for potential proposers, especially small business endeavors and ACDBE operators.
APPROPRIATIONS:
No appropriations are requested for this item.
STANDARD PROVISIONS:
1. |
The issuance of permits, leases, agreements, gate and space assignments, and renewals, amendments or extensions thereof, or other entitlements granting use of existing airport facilities or its operations is exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Article III, Class 1 (18)(c) of the Los Angeles City CEQA Guidelines. |
2. |
This agreement will be approved as to form by the City Attorney. |
3. |
Actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606. |
4. |
Westfield is required by contract to comply with the provisions of the Living Wage Ordinance. |
5. |
Procurement Services Division has reviewed this action (File #5124) and established the following ACDBE goals: Food /Beverage - 25 %; Retail - 20 %. Westfield proposed 25% ACDBE participation for Food /Beverage and 20% ACDBE participation for Retail. Westfield has achieved 24.56% ACDBE participation for Food /Beverage and 24.98% ACDBE participation for Retail to date. |
6. |
Westfield is required by contract to comply with the provisions of the Affirmative Action Program. |
7. |
Westfield has been assigned Business Tax Registration Certificate number 0002573628- 0001 -4. |
8. |
Westfield is required by contract to comply with the provisions of the Child Support Obligations Ordinance. |
9. |
Westfield has approved insurance documents, in the terms and amounts required, on file with the Los Angeles World Airports. |
10. |
Pursuant to Charter Section 104 (g) staff determined that airport concession agreements are exempt from the provisions of Charter Section 1022 (Use of Independent Contractor). |
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Westfield 3rd Amendment (LAA- 8613): MSC
11. |
Westfield has submitted the Contractor Responsibility Program Pledge of Compliance and will comply with the provisions of the Contractor Responsibility Program. |
12. |
Westfield has been determined by Public Works, Office of Contract Compliance to be in compliance with the provisions of the Equal Benefits Ordinance. |
13. |
Westfield will be required to comply with the provisions of the First Source Hiring Program for all non -trade Airport jobs. |
14. |
Westfield has submitted the Bidder Contributions CEC Form 55 and will comply with its provisions. |
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Westfield 3rd Amendment (LAA- 8613): MSC
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Board File |
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No. LAA-B613C |
THIRD AMENDMENT TO LOS ANGELES INTERNATIONAL AIRPORT TERMINAL |
This Third Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2 and the Tom Bradley International Terminal at Los Angeles International Airport, between the City of Los Angeles and Westfield Airports, LLC (“Third Amendment”), is made and entered into this 13th day of November, 2017 (“Effective Date of Third Amendment”), at Los Angeles, California by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (hereinafter referred to as “City”), acting by order of and through its Board of Airport Commissioners (hereinafter referred to as “Board”) and WESTFIELD AIRPORTS, LLC (“Westfield” or “TCM”), a Delaware limited liability company, concerning the amendment of the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2 and the Tom Bradley International Terminal (“TBIT”), LAA-8613, dated March 1, 2012, between the City and TCM.
RECITALS
WHEREAS, on March 1, 2012, City and TCM entered into the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2 and TBIT, LAA-8613; and
WHEREAS, a First Amendment to the Agreement was entered into on July 9, 2015 (“First Amendment”); and
WHEREAS, a Second Amendment to the Agreement was entered into on June 3, 2016 (“Second Amendment”) (the Agreement, First Amendment and Second Amendment are all collectively referred to as “Agreement”) ; and
WHEREAS, Westfield currently occupies space in Terminal 2 and TBIT pursuant to the Agreement; and
WHEREAS, there are available concession spaces within the Midfield Satellite Concourse; and Amendment Section 1.All references to “Executive Director” in the Agreement shall be changed to “Chief Executive Officer” and the same shall be the equivalent of “General Manager” of the Department of Airports in the Los Angeles City Charter.
WHEREAS, the parties hereto desire to amend said Agreement,
NOW, THEREFORE, the parties hereto, for and in consideration of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties hereto, do mutually agree that the Agreement, BE AMENDED AS FOLLOWS:
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Amendment Section 2.The following is hereby added as Section 1.1.1 to the Agreement:
1.1.1 As of the Effective Date of Third Amendment, (i) TCM shall, at TCM’s sole cost and expense and to the full satisfaction of the Chief Executive Officer, be responsible for the planning, design and development of the food & beverage, retail, and certain other concession spaces in specified locations in the Midfield Satellite Concourse, as more particularly identified in this Agreement and as more particularly set forth below. The Midfield Satellite Concourse is sometimes referred to in this Agreement as “MSC” or “Midfield”; (ii) subject to the provisions that are not applicable to the MSC, TBIT, Terminal 2 and the MSC are individually referred to as a “Facility” and collectively referred to herein as the “Facilities”; and (iii) all references to “Facility” and “Facilities” in the Agreement will hereinafter refer to TBIT, Terminal 2 and the MSC.
Amendment Section 3.Section 1.2, “Concession Location Areas”, of the Agreement is hereby amended and restated as follows:
1.2 Concession Location Areas. Exhibits A-1, A-2, A-3, A-4, A-5, A-6 attached to the Agreement, and A-8 attached to this Third Amendment, set forth a description of the areas within the Airport which may be made available to TCM under this Agreement to operate as terminal commercial manager, which areas are referred to herein as “TBIT - Area 1”, “TBIT - Area 2”, “TBIT - Area 3”, “TBIT - Area 4”, “Terminal 2 - Area 5”, “Terminal 2 - Area 6”, and “Midfield Satellite Concourse - Area 8”, respectively (said areas are sometimes referred to herein individually as an “Area” and collectively as the “Areas”). The Areas describe those portions of the Airport which may potentially be developed by TCM to contain concession locations contemplated by this Agreement and for which TCM may potentially act as the terminal commercial manager. TCM acknowledges and agrees that each Area only represents the general area within which the potential Premises (as defined in Section 2.1 below) may be developed pursuant to a Definitive Improvement Plan (as defined in Section 1.3 below) prepared by TCM and approved by the Chief Executive Officer. TCM acknowledges and agrees that this Agreement does not grant any rights to TCM to possess, occupy or otherwise use any of the Areas (or any portion thereof), unless and until a Definitive Improvement Plan has been approved by the Chief Executive Officer with respect to such Area identifying with specificity the actual Premises within such Area and the Chief Executive Officer has issued a Delivery Notice (as defined in Section 1.10 below) with respect to such Premises. TCM further acknowledges that: (i) certain portions of the Areas are to be developed for the use of Airport-wide Concessionaires as Airport-wide Concessions (as such terms are defined in Section 3.5 below); (ii) such areas reserved for Airport-wide Concessions will not become a part of the Premises, but rather will be separately operated pursuant to concession agreements between City and the respective Airport-wide Concessionaires; and (iii) TCM will have absolutely no rights with respect to any revenues derived by City from such Airport-wide Concessions.
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Amendment Section 4.Section 1.2.2 of the Agreement, “TCM Proposals for Additional Concession Space”, is hereby modified to provide that the title be deleted in its entirety and replaced with the following:
1.2.2 TCM Proposals for Additional Concession Space in TBIT and Terminal 2.
Amendment Section 5.Section 1.2.2 of the Agreement is hereby modified to provide that the second (2nd) and third (3rd) sentences from the last sentence be deleted in their entirety and replaced with the following:
As a condition precedent to its effectiveness, any such agreement regarding such additional concession space shall be set forth in a written amendment to this Agreement and shall be subject to obtaining approval of the City Council. TCM acknowledges that the foregoing right to first negotiation set forth in this Section 1.2.2 applies only to the specific additional concession space and the specific Permitted Use that has been previously proposed by TCM in a written TCM Additional Space Proposal submitted to City.
Amendment Section 6.The following is hereby added as Section 1.2.3 to the Agreement:
1.2.3 TCM Proposals for Additional Concession Space in the Midfield Satellite Concourse. Based on the City Council’s finding of an exemption from the competitive bidding process because it is not reasonably practicable nor is it compatible with the City’s interests, from the Effective Date of Third Amendment through the Expiration Date of the Agreement, TCM may thereafter submit written proposals to the Chief Executive Officer from time to time thereafter requesting that City consider making available to TCM unoccupied or otherwise unreserved space within the Midfield Satellite Concourse (including in the remaining southern-most portion of the MSC, when and if built, that is not being built under the Midfield Satellite Concourse North Contract, DA-4971 (“Construction Contract”)) for incorporation as a Unit into the premises under this Agreement as additional concession space for a specific proposed Permitted Use (a “TCM Additional MSC Space Proposal”). City shall be under no obligation to consider any such TCM Additional MSC Space Proposal; provided, however, in the event that City decides (in the Chief Executive Officer’s sole discretion) to thereafter make such space identified in such TCM Additional MSC Space Proposal available for the specific Permitted Use identified in such TCM Additional MSC Space Proposal, then City agrees to give TCM written notice of City’s intent to so make such additional concession space available for such purpose. Such written notice by City will define such additional concession space and set forth any additional terms and conditions being proposed by the Chief Executive Officer with respect to the addition of such concession space as a part of the premises under this Agreement. Following receipt of such written notice, TCM and the Chief Executive Officer shall negotiate in good faith for a period of sixty (60) days to attempt to reach mutually agreeable terms and conditions with respect to such additional concession space. Such 60-day negotiation period may be extended by the Chief Executive Officer in his or her sole discretion. In the event that TCM and the Chief Executive Officer are unable to reach mutually agreeable terms and conditions within such negotiation period, then TCM shall have no right to such additional concession space, and City shall be free to offer such additional concession space to other concessionaires on such terms and conditions as the Chief Executive
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Officer deems appropriate or to otherwise use such additional concession space for other purposes as the Chief Executive Officer deems appropriate. As a condition precedent to its effectiveness, any such agreement regarding such additional concession space shall be set forth in a written amendment to this Agreement and shall be subject to obtaining approval of the City Council. TCM acknowledges that the foregoing right to first negotiation set forth in this Section 1.2.3 applies only to the specific additional concession space and the specific Permitted Use that has been previously proposed by TCM in a written TCM Additional MSC Space Proposal submitted to City. Nothing in this Section 1.2.3 shall be construed to require City to negotiate with TCM or otherwise make available to TCM any additional concession space within the MSC that is not the subject of a TCM Additional MSC Space Proposal or that is beyond the permitted scope of a TCM Additional MSC Space Proposal, and TCM acknowledges that City may contract directly with present and future concessionaires for such concession space within the MSC without negotiating with or otherwise offering such concession space to TCM. Without limiting the generality of the foregoing sentence, nothing in this Section 1.2.3 or in any other provision of this Agreement shall be construed to require City to negotiate with TCM or otherwise make available to TCM any additional concession space within the MSC that is being made available by City for use as an Airport-wide Concession, and TCM acknowledges that City may contract directly with present and future Airport-wide Concessionaires for concession space within the MSC without negotiating with or otherwise offering such concession space to TCM.
Amendment Section 7.Section 1.3, “Definitive Improvement Plan”, of the Agreement is hereby amended and restated as follows:
1.3Definitive Improvement Plan. Within the time and manner set forth in this Agreement, TCM, at TCM’s sole cost and expense, shall prepare and deliver to the Chief Executive Officer for review and approval (such approval not to be unreasonably, withheld, conditioned or delayed) a definitive and comprehensive plan for the development, implementation and operation of the potential Premises (containing both concession locations and support areas for concession operations, if any) within each of the Areas (herein, the “Definitive Improvement Plan”). Except as otherwise approved by the Chief Executive Officer (acting in his or her reasonable discretion), each Definitive Improvement Plan shall be a logical progression of the Conceptual Plans attached to this Agreement as Exhibit “B” (the “Conceptual Plan”). Although no Conceptual Plan is attached for MSC — Area 8, the Definitive Improvement Plan for such Area shall provide a Conceptual Plan. Any changes to the Conceptual Plan shall be subject to the approval of the Chief Executive Officer (acting in his or her sole discretion). Except as may be expressly agreed in writing by the Chief Executive Officer or as otherwise expressly set forth in this Agreement, all design and construction work contemplated by any Definitive Improvement Plan shall be performed by, and at the expense of, TCM. Except as to MSC — Area 8, the Conceptual Plan sets forth as to each Area the approximate square footage and location of the Units, TCM Common Areas and TCM Storage Premises (as such terms are defined in Section 2.1 below) that are proposed to become a part of the Premises. Pursuant to the Conceptual Plan, the total approximate square footage of all of the Units within all of the Areas, except MSC-Area 8, is 84,261, the total approximate square footage of all of the TCM Common Areas within all of the Areas is 11,491, and the total approximate square footage of all of the TCM Storage Premises within all of the Areas is 7,549. The total square footage of all of the Units within MSC-Area 8 is up to 30,000 and the total square footage of all of the TCM Common Areas within MSC-Area 8 is up to 8,500.
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Amendment Section 8.The following is hereby added as Section 1.4.1 to the Agreement:
1.4.1 Notwithstanding anything to the contrary contained in the Agreement, the Definitive Improvement Plan for the Midfield Satellite Concourse - Area 8 shall include the proposed leasing strategy for the MSC. TCM’s approach to its concessionaire selection process shall include specific strategies to both: (a) provide defined opportunities for existing qualified TBIT concessionaires through a competitive process, and (b) provide opportunities to new, authentic, local entrepreneurs and airport concession disadvantaged business enterprises that brings forth a balance of local, regional, and national brands that are complimentary to those currently planned or operating in TBIT.
Amendment Section 9.Subsection (c) in Section 1.5, “Time for Submission of Definitive Improvement Plan”, of the Agreement is hereby amended and restated as follows:
(c) All Other Areas. The Definitive Improvement Plan for each of TBIT — Area 3, TBIT — Area 4, Terminal 2 — Area 5 and Terminal 2 — Area 6 shall be submitted to the Chief Executive Officer within the twenty (20) month period following the Effective Date. The Definitive Improvement Plan for the MSC — Area 8 shall be submitted to the Chief Executive Officer within seventy-five (75) days immediately following the Effective Date of Third Amendment.
Amendment Section 10.The following is hereby added as Section 1.8.3.1 to the Agreement:
1.8.3.1 No Initial Non-Premises Improvements for MSC. There will be no Initial Non-Premises Improvements for the MSC, and there will be no improvements made, or construction done, by TCM, including but not limited to its concessionaires, that is outside of TCM’s Premises in the MSC, unless they are ancillary improvements to support only the TCM Initial Premises Improvements.
Amendment Section 11.The following is hereby added as Section 1.9.1 to the Agreement:
1.9.1 Provided that City has timely performed its obligations under this Agreement affecting TCM’s performance, TCM agrees that TCM shall take all necessary and appropriate actions to ensure that approvals of the Definitive Improvement Plan are obtained for the MSC in Exhibit A-8 (“MSC Area”). TCM further acknowledges and agrees that, provided that City has timely performed its obligations under this Agreement affecting TCM’s performance, in the event that TCM fails to obtain DIP Approvals for the MSC Area, within the seventy-five (75) day period immediately following the Effective Date of Third Amendment, then TCM shall have no further right to submit a Definitive Improvement Plan with respect to such Area, and such Area shall no longer be subject to the terms of this Agreement (and TCM shall have no right to act as terminal commercial manager with respect to such Area). The Chief Executive Officer may, in the Chief Executive Officer’s sole discretion, extend such time for the approval of any Definitive Improvement Plan.
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Amendment Section 12.The following is hereby added as Section 1.10.2 to the Agreement:
1.10.2 Provided that TCM uses commercially reasonable efforts to comply with its obligations to timely obtain permits, the parties acknowledge and agree that the Delivery Dates, and the development of the MSC Premises, as defined in Section 2.1, shall be as set forth in the DIP Approval for the MSC Areas, including certain Units which will be phased in and delivered pursuant to a Delivery Notice. Except with respect to those Units which are phased in (as set forth in the DIP Approval), TCM shall be required, and shall require its concessionaires, to complete food and beverage and retail concessions at MSC Areas, and cause the same to be open for business to the public and commence regular concessions operations, on or before the date the Midfield Satellite Concourse becomes operational (“Anticipated MSC Opening Date”); provided, however, that the Delivery Date for all of the food and beverage Units occurs at least two hundred (200) days prior to the Anticipated MSC Opening Date, and the Delivery Date for all of the retail Units occurs at least one hundred forty (140) days prior to the Anticipated MSC Opening Date.
Amendment Section 13.Section 2.2, “Primary Term”, of the Agreement is hereby amended and restated as follows:
2.2Primary Term. For purposes of this Agreement, the term “Primary Term” shall mean the period of time that TCM shall operate the Premises as the terminal commercial manager hereunder, which period shall commence for any given portion of the Premises a on the Delivery Date for such portion of the Premises and any associated Storage Space within TBIT, Terminal 2 and the MSC and shall end as to all portions of the Premises on the Expiration Date (unless the term of this Agreement is sooner terminated in accordance with the provisions of this Agreement). For purposes of this Agreement, the term “Expiration Date” shall mean January 31, 2032. No delay in the processing of any Definitive Improvement Plan or delay in the Delivery Date of any portion of the Premises shall extend the Expiration Date. TCM acknowledges and agrees that TCM has absolutely no rights under this Agreement to extend the Primary Term.
Amendment Section 14.The first paragraph of Section 3.2 of the Agreement, “Business and Operations Plan,” is hereby amended and restated as follows:
3.2Business and Operations Plan. TCM shall prepare a detailed plan for the management of the concession operations within the Premises (the “Business and Operations Plan”), which Business and Operations Plan shall at all times be subject to the approval of the Chief Executive Officer as set forth in this Section 3.2, such approval not to be unreasonably withheld, conditioned or delayed. The initial version of the Business and Operations Plan shall be in a form prepared by TCM and approved by the Chief Executive Officer, prior to the Effective Date of this Agreement. Thereafter, the Business and Operations Plan shall be updated by TCM and submitted to the Chief Executive Officer, on an annual basis, no later than March 31st of each year continuing until the day before the Effective Date of the Third Amendment. On the Effective Date of the Third Amendment, the Business and Operations Plan shall be updated by TCM and submitted to the Chief Executive Officer, on an annual basis, no later than October 31st of each year continuing through the end of the Primary Term. The Business and Operations Plan shall be subject to the approval of the Chief Executive Officer each year (which the Chief Executive Officer shall provide within thirty (30) days following submission), and any changes to the Business and Operations Plan as so approved by the Chief Executive Officer that occur during the year shall be subject to the further approval of the Chief Executive Officer in a similar manner.
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Until such approval is obtained, TCM shall continue to operate under the most recent approved Business and Operations Plan. TCM shall manage the concession operations within the Premises substantially in accordance with the Business and Operations Plan as approved by the Chief Executive Officer. Notwithstanding anything contained in the Business and Operations Plan, in the event of a conflict between the provisions of this Agreement and the provisions of the Business and Operations Plan, the provisions of this Agreement shall control. The contents of the Business and Operations Plan shall include, but not be limited to, the following:
Amendment Section 15.The following is hereby added as subsection “(k)” to Section 3.2 of the Agreement:
(k)Subject to the Laws, TCM shall endeavor to establish a financial program to promote opportunities for small businesses in need of financial assistance to do business in the Airport. The program structure will be mutually agreed upon by the parties, but will likely consist of providing monies to qualifying concessionaires or entering into payment plans for certain monies due to TCM, to assist with the initial buildout of their respective premises, which amounts will be paid back by such concessionaires to TCM over the term of their respective UCAs, along with the applicable interest.
Amendment Section 16.Section 3.2.1 of the Agreement, “Services of TCM”, is hereby modified to provide that the title be deleted in its entirety and replaced with the following:
3.2.1 Services of TCM for Custom Architectural Features in Terminal 2-Area 5.
Amendment Section 17.The following is hereby added as Section 3.9.2 to the Agreement:
3.9.2 TCM hereby acknowledges that the Premises for the MSC — Area 8 are being constructed to a pre-defined shell condition by City as described in Midfield Satellite Concourse North (DA-4971) Issue for Construction Documents, dated July 13, 2017 (herein, the “MSC Shell Condition”), and shall be delivered to TCM in such MSC Shell Condition, and except as otherwise provided herein shall be accepted by TCM “as is” in such MSC Shell Condition. Any subsequent additional space preparation scope or TCM Initial Premises Improvements, including design, construction coordination and logistics, performed by City in addition to the MSC Shell Condition will be outlined in the Definitive Improvement Plan for MSC — Area 8, including the extent and scope of ancillary improvements to support only TCM Initial Premises Improvements. Any development of the TCM Initial Premises Improvements for MSC — Area 8 will be in accordance with the DIP Approval for MSC — Area 8 and the City may charge TCM for such alterations and/or revisions to the MSC Shell Condition (“City Charge”) provided such City Charge shall not exceed [**]. While the parties acknowledge and agree that TCM shall be entitled to collect up to [**] of the City Charge through reimbursement from its Concessionaires, in no event shall such concessionaire reimbursement exceed [**] “Reimbursement Cap”). In the event that the City Charge is less than the Reimbursement Cap, such savings shall be allocated between TCM, [**] and its Concessionaires, [**] TCM will pay the City Charge in a single, lump sum payment within sixty (60) days following receipt of documents from the City evidencing actual costs expended for any alterations and/or revisions to the MSC Shell Condition, and in accordance to the DIP Approval for MSC —Area 8; however, in no event shall payment of the City Charge occur prior to the MSC Anticipated Opening Date. Upon three (3) days’ prior notice to TCM’s project manager, which may be verbal, TCM shall attend final walk through inspections with the City’s project construction manager and the parties shall in good faith identify any failure of the Premises to conform to the MSC Shell Condition. City shall be responsible for correcting or shall require the correction of any failure of the Premises to conform to the MSC Shell Condition as so identified by the parties in good faith. Nothing in the Agreement shall be construed to grant to TCM any right to interfere with or delay City’s (or its contractor’s) Construction Contract as contemplated herein, and TCM agrees to cooperate with City and its contractors in all reasonable respects.
Amendment Section 18.Section 4.1.2.3 of the Agreement, “Conversion to Base Minimum Dollar MAG,” is hereby deleted in its entirety.
Amendment Section 19.Section 4.1.2.4, “Chief Executive Officer Authority to Adjust Square Footage”, of the Agreement is hereby renumbered, amended and restated as follows:
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Amendment Section 20.Section 4.1.3 of the Agreement, “Percentage Rent”, is hereby modified to provide that the fourth (4th) sentence is deleted in its entirety and replaced with the following:
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Amendment Section 21.Section 4.10.4 of the Agreement is hereby modified to provide that the last sentence be deleted in its entirety and replaced with the following:
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Amendment Section 22.[**]
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Amendment Section 23.Section 7.6 of the Agreement is hereby modified to provide that the first (1st) sentence be deleted in its entirety and replaced with the following:
7.6Mid-Term Refurbishment. TCM shall plan for and cause the completion of the refurbishment of the Premises (excluding the MSC) in the manner set forth in this Section 7.6 (the “Mid-Term Refurbishment”) no later than June 30, 2025 (the “Mid-Term Refurbishment Completion Date”).
Amendment Section 24.Exhibit G (Insurance Requirements for Los Angeles World Airports) in Section 13.3 of the Agreement is hereby replaced with Exhibit G-1, attached to this Third Amendment.
Amendment Section 25.The following is hereby added as Section 16.48 to the Agreement:
16.48 California Civil Code Section 1938 Disclosure; TCM’s Responsibility for Required Repairs or Alterations. The Premises have not undergone an inspection by a Certified Access Specialist (CASp). The following statement is hereby included in this Agreement:
“A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.”
The parties hereby mutually agree that any inspection by a CASp shall be performed at TCM’s sole cost and expense and at a time reasonably satisfactory to City. The parties hereby mutually agree that any and all repairs or alterations necessary to correct violations of construction-related accessibility standards within the Premises and the Premises shall be performed by TCM at TCM’s sole cost and expense. The parties acknowledge and agree that, notwithstanding any presumption set forth in California Civil Code Section 1938, TCM shall be solely responsible and liable to make any and all repairs or alterations necessary to correct violations of construction-related accessibility standards in any CASp inspection report. TCM hereby agrees that, to the fullest extent permitted by law, TCM shall treat any inspection by a CASp and the CASp inspection report as strictly confidential and shall not disclose the content of any such inspection report, except as necessary for TCM to complete repairs and corrections of violations of construction-related accessibility standards. TCM acknowledges that TCM’s obligations set forth in this Section are in addition to (and not in lieu of) TCM’s obligations regarding compliance with the ADA and construction related accessibility standards set forth elsewhere in this Agreement (including, without limitation, Section 5.11 and 16.10, and Articles VII and VIII), and nothing in this Section shall be construed to limit or diminish TCM’s obligations set forth elsewhere in this Agreement.
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Amendment Section 26.The following is hereby added as Section 16.49 to the Agreement:
16.49 Iran Contracting Act, 2010. In accordance with California Public Contract Code Sections 2200-2208, all persons entering into or renewing contracts with City for goods or services estimated at one million ($1,000,000) or more are required to complete, sign and submit the Iran Contracting Act of 2010 Compliance Affidavit attached herein as Exhibit Q. TCM’s compliance with the terms of the Iran Contracting Act of 2010 is made a requirement and condition of the Agreement.
Amendment Section 27.The Basic Information of the Agreement is hereby amended and restated to conform with the provisions of this Third Amendment, to the extent that the provisions in the Basic Information have been modified by the provisions of this Third Amendment.
Amendment Section 28. The applicable Business and Operations Plan of the Agreement shall be submitted to conform with the provisions of this Third Amendment, to the extent that the provisions in the applicable Business and Operations Plan should be modified in accordance with the provisions of this Third Amendment.
Amendment Section 29.The parties hereby represent and covenant to the other, to the best of their knowledge, without independent inquiry, as follows: (1) neither party is in default in the performance of any of the terms or provisions of the Agreement; (2) neither party has nor claims any setoffs or credits against the payment of Rent or other amounts payable to the other under the Agreement; and (3) the parties shall be entitled to rely on the accuracy of the foregoing representation and covenants, and each party hereby releases the other from any claims relating to the foregoing matters.
Amendment Section 30.TCM hereby re-certifies all of its representations and warranties under Section 16.42 of the Agreement, including all of its subsections.
Amendment Section 31.Except as specifically provided herein, this Third Amendment shall not in any manner alter, change, modify, or affect any of the rights, privileges, duties, or obligations of either of the parties hereto, under, or by reason of said Agreement, as amended.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, City has caused this Third Amendment to be executed on its behalf by the Chief Executive Officer, or his or her authorized signatory, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
Approved as to form: |
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MICHAEL N. FEUER, |
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City Attorney |
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Chief Executive f fficer, City of Los |
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Angeles, Department of Airports |
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Deputy/ City Attorney |
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Date: |
October 6, 2017 |
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WESTFIELD AIRPORTS, LLC |
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WESTFIELD AIRPORTS, LLC |
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a Delaware limited liability company |
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a Delaware limited liability company |
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Chief Financial Officer |
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Senior Executive Vice President |
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(ACKNOWLEDGEMENT OF GUARANTOR FOLLOWS)
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ACKNOWLEDGEMENT OF GUARANTOR
The undersigned, Westfield America, Inc., a Missouri corporation (herein, “Guarantor”), hereby represents, acknowledges, and agrees as follows: (1) Guarantor has reviewed the foregoing Third Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2 and TBIT, between the City of Los Angeles and Westfield Airports, LLC (“TCM”) (the “Third Amendment”), concerning the amendment of the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2 and TBIT, LAA-8613, dated March 1, 2012, between the City of Los Angeles and TCM (hereinafter “Agreement”); (2) Guarantor is the guarantor of TCM’s obligations under the Agreement pursuant to that certain Guaranty Agreement executed concurrently with the execution of the Agreement (the “Guaranty”); (3) Guarantor approves of TCM’s execution of the Third Amendment and agrees with its terms; and (4) the Guaranty is hereby reaffirmed, and the Guaranty is and remains in full force and effect and continues to guarantee the prompt payment and performance by TCM of all of the terms of the Agreement as amended and modified by the Third Amendment. This Acknowledgement of Guarantor has been executed as of the date of execution of the Third Amendment by TCM.
“GUARANTOR” |
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WESTFIELD AMERICA, INC. |
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WESTFIELD AMERICA, INC |
a Missouri corporation |
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INC. a Missouri corporation |
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Chief Financial Officer |
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INSURANCE REQUIREMENTS FOR LOS ANGELES WORLD AIRPORTS
NAME: |
WESTFIELD AIRPORTS, LLC |
AGREEMENT / ACTIVITY: |
Terminal Commercial Manager for Terminal 2, TBIT, and the Midfield Satellite Concourse (MSC) at LAX. |
LAWA DIVISION: |
Commercial Development Group |
The insured must maintain insurance coverage at limits normally required of its type operation; however, the following coverage noted with an “X” are the minimum required and must be at least the level of the Combined Single Limits indicated.
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LIMITS |
(X) Workers’ Compensation (Statutory)/Employer’s Liability |
Statutory |
(X) Broad Form All States Endorsement |
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(X) Voluntary Compensation Endorsement |
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(X) Waiver of Subrogation, specifically naming LAWA |
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(Please see attached supplement) |
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(X) Automobile Liability - covering owned, non-owned & hired auto |
$10,000,000 CSL |
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(X) Aviation/Airport or Commercial General Liability, including the following coverage: |
$10,000,000 CSL |
(X) Premises and Operations |
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(X) Contractual (Blanket/Schedule) |
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(X) Independent Contractors |
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(X) Products /Completed Operations |
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(X) Broad Form Property Damage |
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(X) Personal Injury |
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(X) Additional Insured Endorsement, specifically naming LAWA |
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(Please see attached supplement). |
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( ) Hangarkeepers Legal Liab. (At least at a limit of liability of $1 million) |
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(X) Property Insurance |
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90% Co-Ins. ( )Actual Cash Value (X)Replacement Value ( )Agreed Amt. |
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(X) Covering company’s improvements, w/waiver of subrogation |
Value of Improvements |
(Including building structure, if applicable) |
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(Department does not insure company’s improvements) |
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(X) All Risk Coverage |
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(X) Fire & Basic Causes of Loss Form, including sprinkler leakage |
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(X) Vandalism and Malicious Mischief |
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(X) Debris Removal |
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(X) Builder’s Risk Insurance - (All Risk Coverage) |
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Required if property or building ultimately revert to City |
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Coverage for Hazardous Substances |
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INSURANCE COMPANIES WHICH DO NOT HAVE AN AMBEST RATING OF A- OR BETTER, AND HAVE A MINIMUM FINANCIAL SIZE OF AT LEAST 4, MUST BE REVIEWED FOR ACCEPTABILITY BY EXECUTIVE DIRECTOR.
PLEASE RETURN THIS FORM WITH EVIDENCE OF INSURANCE
EXHIBIT G-1
INSURANCE REQUIREMENTS FOR LOS ANGELES WORLD AIRPORTS
(SUPPLEMENT)
The only evidence of insurance accepted will be either a Certificate of Insurance and/or a True and Certified copy of the policy. The following items must accompany the form of evidence provided:
****All endorsements must specifically name in the schedule:
The City of Los Angeles, Los Angeles World Airports, its Board, and all of its officers, employees and agents.
A BLANKET/AUTOMATIC ENDORSEMENT AND/OR LANGUAGE ON A
CERTIFICATE OF INSURANCE IS NOT ACCEPTABLE.
| ● | A typed legible name of the Authorized Representative must accompany the signature on the Certificate of Insurance and/or the True and Certified copy of the policy. |
EXHIBIT G-1
IRAN CONTRACTING ACT OF 2010 COMPLIANCE AFFIDAVIT
(California Public Contract Code Sections 2200-2208)
The California Legislature adopted the Iran Contracting Act of 2010 to respond to policies of Iran in a uniform fashion (PCC § 2201(q)). The Iran Contracting Act prohibits bidders or contractors engaged in investment activities in Iran from bidding on, submitting proposals for, or entering into or renewing contracts with public entities for goods and services of one million dollars ($1,000,000) or more (PCC § 2203(a)). A bidder or contractor who “engages in investment activities in Iran” is defined as either:
| 1. | A bidder or contractor providing goods or services of twenty million dollars ($20,000,000) or more in the energy sector of Iran, including provision of oil or liquefied natural gas tankers, or products used to construct or maintain pipelines used to transport oil or liquefied natural gas, for the energy sector of Iran; or |
| 2. | A bidder or contractor that is a financial institution (as that term is defined in 50 U.S.C. § 1701) that extends twenty million dollars ($20,000,000) or more in credit to another person, for 45 days or more, if that person will use the credit to provide goods or services in the energy sector in Iran and is identified on a list created by the California Department of General Services (DGS) pursuant to PCC § 2203(b) as a person engaging in the investment activities in Iran. |
The bidder or contractor who proposes to enter into or renew a contract shall certify that at the time of submitting a bid for new contract or renewal of an existing contract, he or she is not identified on the DGS list of ineligible businesses or persons and that the bidder or contractor is not engaged in investment activities in Iran in violation of the Iran Contracting Act of 2010.
California law establishes penalties for providing false certifications, including civil penalties equal to the greater of $250,000 or twice the amount of the contract for which the false certification was made; contract termination; and three-year ineligibility to bid on contracts (PCC § 2205).
To comply with the Iran Contracting Act of 2010, the bidder or contractor shall complete and sign ONE of the options shown below.
OPTION #1: CERTIFICATION
I, the person named below, certify that I am duly authorized to execute this certification on behalf of bidder or contractor, or financial institution identified below, and that the bidder or contractor, or financial institution identified below, is not on the current DGS list of persons engaged in investment activities in Iran and is not a financial institution extending twenty million dollars ($20,000,000) or more in credit to another person or vendor, for 45 days or more, if that other person or vendor will use the credit to provide goods or services in the energy sector in Iran and is identified on the current DSG list of persons engaged in investment activities in Iran.
Westfield Airports, LLC, |
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a Delaware Limited liability Company |
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By: |
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Senior Executive Vice President |
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EXHIBIT Q
OPTION #2: EXEMPTION,
Pursuant to PCC § 2203(c) and (d), a public entity may permit a bidder or contractor, or financial institution engaged in investment activities in Iran, on a case-by-case basis to be eligible for, or to bid on, submit a proposal for, or enter into, or renew, a contract for goods and services. If the bidder or contractor, or financial institution identified below has obtained an exemption from the certification requirement under the Iran Contracting Act of 2010, the bidder or contractor, or financial institution shall complete and sign below and attach documentation demonstrating the exemption approval.
Westfield Airports, LLC, |
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a Delaware Limited Liability Company |
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EXHIBIT Q
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.19.4
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LAX Van Nuys City of Los Angeles Ent Garcetti Board of Airport Commissioners Sean O. Burton President Valeria C. Velasco Gabriel L. Eshaghian Beatrice C. Hsu Nicholas P. Roxborough Dr. Cynthia A. Telles Karim Webb Justin Erbacci Interim Chief Executive Officer |
RESOLUTION NO. 27003 BE IT RESOLVED that, on recommendation of Management, the Board of Airport Commissioners approved revision of the payment terms of all Concession Agreements listed in Attachments 1, 2, and 3 of the Board-adopted staff report, attached hereto and made part hereof, to only require payment of percentage rent as defined in their respective Concession Agreement instead of Minimum Annual Guarantee for the period starting April 1, 2020 through June 30, 2020; and BE IT FURTHER RESOLVED that Board further approved revision of the payment terms for all Concession Agreements listed on Attachment 1 of the Board-adopted staff report, attached hereto and made part hereof, to allow deferral of payment of percentage rent until July 1, 2020 through December 31, 2020 in equal monthly installments; and BE IT FURTHER RESOLVED that the Board established a temporary Overflow Rental Car Parking Rate of $3.61 per square foot per year; and BE IT FURTHER RESOLVED that the Board authorized the Interim Chief Executive Officer to implement a Program to revise Concession Agreements and implement a temporary policy to forbear on implementing default provisions related to payment of Minimum Annual Guarantees for the affected Concessionaires as set forth in the Board-adopted staff report, attached hereto and made part hereof; and BE IT FURTHER RESOLVED that the Board further authorized the Interim Chief Executive Officer or designee to execute Letter Agreements with the terms and conditions in the Program, subject to City Attorney approval as to form and Los Angeles City Council approval; and BE IT FURTHER RESOLVED that this item, as a continuing administrative, maintenance and personnel-related activity, is administratively exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article II, Section 2.f of the Los Angeles City CEQA Guidelines; and BE IT FURTHER RESOLVED that this action is subject to the provisions of Los Angeles City Charter Sections 606. |
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o0o I hereby certify that this Resolution No. 27003 is true and correct, as adopted by the Board of Airport Commissioners at its Special Meeting held on Thursday, April 16, 2020. Grace Miguel Secretary BOARD OF AIRPORT COMMISSIONERS Approved by City Council on April 22, 2020 |
1 World Way Los Angeles California 90045-5803 Mall P.O. Box 92216 Los Angeles California 90009-2216 Telephone 855 463 5252 Internet www.lawa.org
SUBJECT: Approval of Revisions of the Terms of all Concessions Agreements based on Minimum Annual Guarantees for the Concessions at Los Angeles International Airport affected by the decline in passengers resulting from Travel Restrictions due to COVID-19.
Approve revision of the payment terms of all Concessions Agreements based on Minimum Annual Guarantee so that all concessionaires impacted by the decline in passengers resulting from COVID-19 travel restrictions will only be required to pay percentage rent as defined in their Concession Agreement instead of Minimum Annual Guarantee from April 1, 2020 through June 30, 2020.
RECOMMENDATIONS:
Management RECOMMENDS that the Board of Airport Commissioners:
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ADOPT the Staff Report. |
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DETERMINE that this action is administratively exempt from the California Environmental Quality Act (CEQA) pursuant to Article II, Section 2.f of the Los Angeles City CEQA Guidelines. |
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APPROVE a revision of the payment terms of all Concession Agreements listed in Attachments 1, 2, and 3 to only require payment of percentage rent as defined in their respective Concession Agreement instead of Minimum Annual Guarantee for the period starting April 1, 2020 through June 30, 2020; |
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Page 1
COV1D-19 Rent Relief
Concession Agreements
4. |
APPROVE a revision of the payment terms for all Concession Agreements listed on Attachment 1 to allow deferral of payment of percentage rent until July 1, 2020 through December 31, 2020 in equal monthly installments; |
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ESTABLISH a temporary “Overflow Rental Car Parking Rate of $3.61 PSFPY; and, |
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AUTHORIZE the Interim Chief Executive Officer to implement a Program to revise Concession Agreements and implement a temporary policy to forbear on implementing default provisions related to payment of Minimum Annual Guarantees for the affected Concessionaires as set forth in this report. |
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AUTHORIZE the Interim Chief Executive Officer or his designee to execute Letter Agreements with the terms and conditions in the Program, subject to City Attorney approval as to form and Los Angeles City Council approval. |
DISCUSSION:
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Purpose |
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Prior Related Actions |
None
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Current Action |
Los Angeles World Airports (LAWA) operates a comprehensive concessions program at Los Angeles International Airport (LAX) that includes Advertising and Sponsorship, Duty Free Merchandise, Food and Beverage, Retail, and Services operators in the terminal facilities and on-airport and off-airport Rental Car operations outside the terminals. A complete list of concession operators at LAX is shown in Attachment 1.
These concessionaires provide LAX guests a complete line of food, beverage, retail, service and rental car options. The concessions program at LAX has received multiple awards for excellence in overall program and design. Concession sales correlate directly to passenger traffic.
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COV1D-19 Rent Relief
Concession Agreements
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Impacts of COVID-19
The passenger declines due to the COVID-19 impact on travel have resulted in sales declines in direct relation to the approximately 90% decline in passenger traffic year over year, based on Transportation Security Administration (TSA) screenings reported for the last week of March 2020. This decline in sales has forced all concessions at LAX to revisit their operating hours and take other cost cutting measures, including closing some locations and laying off staff. As of March 26, 2020, concessionaires have laid off or furloughed 1,390 staff out of the approximately 4,000 employed prior to the downturn in passenger traffic.
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LAWA has conducted multiple meetings and outreach sessions with the concessionaires to facilitate information sharing as COVID-19 impacted passenger traffic and operating procedures developed. At these meetings, the concessionaires shared revised operating plans that focus on the safety of their employees and LAX guests in accordance with health department directives, and the emergency measures to alter operating hours they have been enacted in reaction to the passenger traffic declines from restrictions on travel to the U.S. from many international destinations. As noted above, sales income has fallen to the point where the concessionaires have said that monthly rent obligations exceed monthly income. LAWA also has conducted outreach sessions with labor organizations representing the workers for these businesses.
The recently-enacted federal relief law allocates funds to certain airports and airport stakeholders, provided they take particular steps, including keeping their workforces intact. Although the legislation does not specifically provide relief to concessionaires, they and their employees will be important to the airport’s recovery. Consistent with that legislation, LAWA has developed the following program to provide assistance to our concession business partners.
Proposed In-Terminal Agreement Revisions
[**] This action is necessary to prevent the permanent shutdown of Food and Beverage, Retail, Rental Car and Service concessions, which are a vital part in the operations and financial sustainability of LAX. Based on differences with the concession operations, LAWA developed the following three temporary relief programs:
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COV1D-19 Rent Relief
Concession Agreements
I.In-Terminal Food and Beverage, Retail, and Services Concessions
For the in-terminal food and beverage, retail and services concession agreements listed on Attachment 1:
For In-Terminal Concessionaires to qualify for this temporary relief program each concessionaires will be required to:
a) |
Comply with all applicable City Ordinances; |
b) |
Commit to re-employ laid off staff in direct proportion to increases in sales during the recovery period so that on a quarterly basis, employment numbers increase in proportion to sales increases, using December 2019 payroll levels and sales as the basis of full employment/sales; and to re-employ staff and management in the same proportion and ratio as was in place in December 2019; Additionally Concessionaires shall adhere to all federal requirements with respect to use of funds in the event they qualify and receive funding from the Coronavirus Aid, Relief, and Economic Security Act, widely known as the CARES Act or any future federal relief program; |
c) |
Maintain health insurance coverage for two months at the same rate and level as prior to the layoffs or reduction in hours for all employees who qualified for health insurance coverage during February 2020. This requirement applies to all employees who have been laid off, furloughed, or experienced reduced hours since March 1, 2020 or may be laid off or furloughed as a result of COVID 19; |
d) |
Pass along to all sub-concessionaires the same benefits received by the prime and/or Terminal Commercial Manager on a ratable basis; |
e) |
Have all accounts receivable status current; |
f) |
Have fully funded Faithful Performance Guarantees (FPG) and agree that LAWA can draw down on the FPG if concessionaire misses any payments; and, |
g) |
Demonstrate that the concessionaire is not entitled to any business interruption insurance benefits that are redundant to this program |
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Concession Agreements
II. |
Advertising and Sponsorship Concession — Terminal Media Operator |
For the advertising/sponsorship concessionaire agreement listed on Attachment 2:
| ● | The Duration Period shall be the 90-day period from April 1, 2020 to June 30, 2020; and, |
| ● | [**] |
For the Terminal Media Operator to qualify for this temporary relief program they will be required to:
a) |
Comply with all applicable City Ordinances; |
b) |
Commit to re-employ laid off staff in direct proportion to increases in sales during the recovery period so that on a quarterly basis, employment numbers increase in proportion to sales increases, using December 2019 payroll levels and sales as the basis of full employment/sales; |
c) |
Have all accounts receivable status current; |
d) |
Have fully funded Faithful Performance Guarantees (FPG) and agree that LAWA can draw down on the FPG if concessionaire misses any payments; and, |
e) |
Demonstrate that the concessionaire is not entitled to any business interruption insurance benefits that are redundant to this program |
III. |
Rental Car Concessions |
For the On-Airport Rental Car concession agreements listed on Attachment 3:
| ● | The Duration Period shall be the 90-day period from April 1, 2020 to June 30, 2020; and, |
| ● | [*] |
For On-Airport and Off-Airport Rental Car Concessionaires to qualify for this temporary relief program each concessionaires will be required to:
a) |
Comply with all applicable City Ordinances |
b) |
Commit to re-employ laid off staff in direct proportion to increases in sales during the recovery period so that on a quarterly basis, employment numbers increase in proportion to sales increases, using December 2019 payroll levels and sales as the basis of full employment/sales; |
c) |
Pass along to all sub-concessionaires the same benefits received by the prime on a ratable basis; |
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COV1D-19 Rent Relief
Concession Agreements
d) |
Have all accounts receivable status current; |
e) |
Have fully funded Faithful Performance Guarantees (FPG) and agree that LAWA can draw down on the FPG if concessionaire misses any payments; and, |
f) |
Demonstrate that the concessionaire is not entitled to any business interruption insurance benefits that are redundant to this program. |
Proposed Rental Car Temporary Overflow Parking Rate
Because of the dramatic decline in passenger traffic, the rental car companies are experiencing a large over supply of rental cars. The rental car concessionaires have requested that LAWA lease them currently vacant land temporarily to allow them to store this excess inventory. Staff have identified several vacant lots and plan to offer these spaces in proportion to the rental car current market share. The current approved rates for similar land is $5.91 PSFPY. Staff propose to establish a new temporary “Overflow Rental Car Parking Rate” of $3.61 PSFPY for the rental car companies to store vehicles during this extraordinary time.
How this action advances a specific strategic plan goal and objective
This action advances this strategic goal and objective: Sustain a Strong Business: Diversify and grow revenue sources, and manage costs. Authorizing and approving Temporary Rent Relief and Forbearance Period Program for the concessionaires impacted by the decline in passenger traffic resulting from the impacts of COVID-19 will enable the concessionaires to substantially reduce operating expenses during the period that sales are impacted. Temporarily relieving the burden of the MAG rent component will allow concessionaires to pay rent based on percentage of sales and airport revenues will recover in parallel to passenger level increases, which are highly correlated with concession sales levels.
Action Requested
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Fiscal Impact
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Concession Agreements
4. |
Alternatives Considered |
| ● | Take No Action |
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APPROPRIATIONS:
No appropriation of funds is required for this action.
STANDARD PROVISIONS:
1. |
This item, as a continuing administrative, maintenance and personnel-related activity, is administratively exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article II, Section 2.f of the Los Angeles City CEQA Guidelines. |
2. |
This proposed document(s) is/are subject to approval as to form by the City Attorney. |
3. |
Actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606. |
4. |
This action is not subject to the provisions of the Living Wage/Service Contractor Worker Retention Ordinances. |
5. |
This action is not subject to the provisions of the Business Enterprise (BE) Programs. |
6. |
This action is not subject to the provisions of the Affirmative Action Program. |
7. |
This action does not require a Business Tax Registration Certificate number. |
8. |
This action is not subject to the provisions of the Child Support Obligations Ordinance. |
9. |
This action is not subject to the insurance requirements of the Los Angeles World Airports. |
10. |
This action is not subject to the provisions of Charter Section 1022 (Use of Independent Contractors). |
11. |
This action is not subject to the provisions of the Contractor Responsibility Program. |
12. |
This action is not subject to the provisions of the Equal Benefits Ordinance. |
13. |
This action is not subject to the provisions of the First Source Hiring Program. |
14. |
This action is not subject to the provisions of Bidder Contributions CEC Form 55. |
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Concession Agreements
Attachment 1
LAWA Concession Operators/Agreements
Terminal Concessions
Terminal Commercial Management Concession Agreement |
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URW Airports, LLC |
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LAA-8640 |
Terminal Commercial Management Concession Agreement |
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URW Airports, LLC |
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LAA-8613 |
Airport Duty Free Merchandise Concession Agreement |
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DFS Group, L.P. |
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LAA-8647 |
Retail Concession Agreement (Hudson Group) |
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Hudson-Magic Johnson Enterprises-Concourse Ventures, LLC |
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LAA-8550 |
Retail Concession Agreement (Hudson Group) |
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LAX Retail Magic 2 JV |
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LAA-8551 |
Retail Concession Agreement (Hudson Group) |
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LAX Retail Magic 3-4 JV |
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LAA-8552 |
Retail Concession Agreement (Hudson Group) |
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LAX Retail Magic 3-4 JV |
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LAA-8542 |
Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
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LAA-8546 |
Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
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LAA-8547 |
Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
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LAA-8548 |
Branded Coffee and Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
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LAA-8843 |
Fast Casual Dining and Branded Coffee Food and Beverage Agreement |
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Areas USA LAX, LLC |
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LAA-8964 |
Food and Beverage Concession Agreement (Delaware North Companies Travel Hospitality Services) |
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DN/Dakota JME 8589 Farmers, LLC |
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LAA-8589 |
Food and Beverage Concession Agreement (Delaware North Companies Travel Hospitality Services) |
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DN/Dakota JME 8549 Pucks, LLC |
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LAA-8549 |
Food and Beverage Concession Agreement (HMS Host Corp) |
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Host International, Inc |
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LAA-8554 |
Food and Beverage Concession Agreement (HMS Host Corp) |
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Host International, Inc |
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LAA-8586 |
Food and Beverage Concession Agreement (HMS Host Corp) |
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Host International, Inc |
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LAA-8587 |
Automated Retail Concession Agreement |
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New Zoom, Inc. dba Zoom Systems |
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LAA-8852 |
Concession Agreement (For Vending Machine Services) |
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Bottling Group LLC |
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LAA-8882 |
Non-Exclusive Space Use License Agreement (For Expedited Traveler Services) |
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Al Clear, LLC |
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LAA-8946 |
Concession Agreement |
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XpresSpa |
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LAA-8543 |
Currency Exchange and Business Services Concession Agreement |
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Lenlyn Ltd dba ICE Currency Services |
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LAA-8831 |
Attachment 2
LAWA Concession Operators/Agreements
Terminal Concessions
Terminal Media Operator Concession Agreement |
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JCDecaux Airport, Inc. |
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LAA-8796 |
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Attachment 3
LAWA Concession Operators/Agreements
On Airport Rental Cars
Concession Agreement |
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On-Airport Rental Car |
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Alamo Rental (US) LLC |
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LAA-8139 |
Concession Agreement |
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On-Airport Rental Car |
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Avis Rent A Car System, LLC |
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LAA-8137 |
Concession Agreement |
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On-Airport Rental Car |
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Budget Rent A Car System, Inc. |
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LAA-8138 |
Concession Agreement |
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On-Airport Rental Car |
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DTG Operations, Inc. dba Dollar Rent A Car |
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LAA-8141 |
Concession Agreement |
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On-Airport Rental Car |
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DTG Operations, Inc. dba Thrifty Car Rental |
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LAA-8144 |
Concession Agreement |
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On-Airport Rental Car |
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Enterprise Rent-A-Car Company of Los Angeles, LLC |
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LAA-8142 |
Concession Agreement |
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On-Airport Rental Car |
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Fox Rent A Car, Inc. |
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LAA-8143 |
Concession Agreement |
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On-Airport Rental Car |
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The Hertz Corporation |
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LAA-8136 |
Concession Agreement |
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On-Airport Rental Car |
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National Rental (US) LLC |
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LAA-8140 |
Concession Agreement |
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On-Airport Rental Car |
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Sixt Rent A Car, LLC |
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LAA-8870 |
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LAX Van Nuys City of Los Angeles Eric Garcetti Board of Airport Commissioners Sean O. Burton President Valeria C. Velasco Gabriel L. Eshaghian Beatrice C. Hsu Nicholas P. Roxborough Dr. Cynthia A. Telles Karim Webb Justin Erbacci Interim Chief Executive Officer |
April 22, 2020 Sent via email to mike.salzman@urw.com Mike Salzman Exec Vice President & Group Director, Airports URW Airports, LLC 2049 Century Park East Los Angeles CA 90067 USA Re: Terminal Commercial Management Concession Agreement LAA-8613 dated 6/22/2012 between CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS (the “City”), acting by and through its Board of Airport Commissioners (the “Board”), and URW Airports, LLC (“TCM”) (said agreement as may have been heretofore amended is referred to herein as the “Agreement”). Dear Mr. Salzman, In consideration of the recent decline in flight and passenger traffic at Los Angeles International Airport and the resulting temporary decline in airport revenue generating opportunities, the City hereby offers an amendment to the above-referenced Agreement in order to provide temporary rental relief on the terms and subject to the conditions set forth in this letter amendment. 1. [**] 2. [**] |
Mike Salzman
April 22, 2020
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3.Compliance With Agreement. TCM acknowledges and agrees that TCM’s right to receive the benefit of any abatement and/or deferral of rent or fees set forth herein is absolutely conditioned upon TCM’s full, faithful and punctual performance of its obligations under the Agreement. If TCM defaults in the performance of any of its obligations under the Agreement, such abated or deferred rent or fees shall immediately become due and payable in full upon demand by the City, and the City shall have the right to enforce the Agreement as if there were no such abatement or deferral. Without limiting the generality of the foregoing, TCM acknowledges and agrees that: (i) TCM shall comply with all applicable City of Los Angeles ordinances, (ii) TCM shall have fully funded its Faithful Performance Guarantee as specified in the Agreement (and without reduction with regard to the temporary MAG abatement contemplated herein) and acknowledges that the City may draw upon the Faithful Performance Guarantee immediately and without prior notice in the event of a default by TCM under the Agreement, (iii) in the event that the City draws upon the Faithful Performance Guarantee, TCM agrees to replenish the Faithful Performance Guarantee to its full amount immediately upon request by City, and (iv) TCM shall be current with respect to all payment obligations under the Agreement as of March 1, 2020. 4.TCM Covenants. In consideration for the benefits provided to TCM under this letter amendment (and as a condition to TCM’s right to receive such benefits), TCM hereby agrees as follows: (a)TCM agrees to timely re-employ employees who were furloughed or laid off (due to the recent decline in flight and passenger traffic at Los Angeles International Airport (“LAX”) and the resulting temporary decline in airport revenue generating opportunities for TCM at LAX) in direct proportion to increases in TCM’s gross revenues as the decline in passenger traffic recovers, so that, on a quarterly basis, the number of employees on payroll shall increase in proportion to sales increases, using December 2019 payroll levels and sales as the basis of full employment/sales. This provision shall be superseded by a collective bargaining agreement that is in place at the time of the execution of this letter amendment if such collective bargaining agreement contains right to recall provisions. (b)If not prohibited by the Employee Retirement Income Security Act (ERISA) or any other applicable law, and where it is not in conflict with any applicable collective bargaining agreement, TCM shall maintain health insurance coverage for all employees who were (i) employed by TCM during February 2020, (ii) had health insurance coverage during February 2020, and (iii) were laid off, furloughed or whose work hours were reduced by TCM since March 1 2020 (and, as a result of such reduction in hours, had health insurance coverage terminated), due to the recent decline in flight and passenger traffic at LAX and the resulting temporary decline in airport revenue generating opportunities for TCM at LAX. |
Mike Salzman
April 22, 2020
Page 3 of 4
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1.Such health insurance coverage referenced above shall be in force for a minimum of two (2) months beginning on the date that the employee was laid off, furloughed or had work hours reduced by TCM.
2.The health insurance coverage referenced above shall be the same coverage as was in effect for the affected employee prior to such lay-off, furlough or separation.
3.To the extent such health insurance coverage was previously terminated, TCM shall promptly restore such coverage for the affected employees.
(c)TCM shall pass along to all of its sub-concessionaires (i.e., TCM’s “Concessionaires” as defined in the Agreement) the same abatement and deferral benefits received by TCM pursuant to this letter amendment on a ratable and nondiscriminatory basis, provided such sub-concessionaire agrees in writing to comply with the provisions of Sections 4(a) and 4(b) above with respect to such sub-concessionaire’s employees. TCM agrees to use good faith efforts to cause its sub-concessionaires to agree in writing to comply with the provisions of Sections 4(a) and 4(b) above with respect to such sub-concessionaire’s employees. If any such sub-concessionaire fails to so agree in writing, then neither TCM nor such sub-concessionaire shall be entitled to receive the ratable share of such abatement and deferral benefits allocable to such sub-concessionaire. (d)TCM shall demonstrate to the City’s reasonable satisfaction that TCM is not entitled to any business interruption insurance proceeds or similar benefits that are redundant to the rental relief provided in this letter amendment, and in the event that the City determines that TCM is or becomes entitled to any such benefits, the City reserves the right to decrease or limit the rental relief provided herein accordingly. (e)Additionally, TCM shall adhere to all federal requirements with respect to use of funds in the event they qualify for and receive Coronavirus Aid Relief and Economic Security Act, more commonly known as the CARES Act. 5.Subordinate to Applicable Laws. The provisions of this letter amendment are intended to be subject and subordinate to any applicable federal, state or local laws and orders now or hereafter in effect to the extent that the terms of this letter amendment are inconsistent therewith. 6.No Third Party Beneficiaries. Nothing in this letter amendment, whether express or implied, is intended to grant to, or confer upon, any person or entity any rights or remedies under, or by reason of, this letter amendment other than the parties hereto, and no person or entity shall be deemed a third party beneficiary of this letter amendment or any provision hereof. |
Mike Salzman
April 22, 2020
Page 4 of 4
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7. Full Force and Effect. Except as expressly amended and modified as set forth in this letter amendment, the terms and provisions of the Agreement remain the same and in full force and effect.
Please signify TCM’s agreement to the terms of this letter amendment by countersigning a copy in the space provided below and returning the signed copy to Los Angeles World Airports Commercial Development Group no later than May 31, 2020. If TCM fails to return a countersigned copy of this letter amendment by such date, the City’s offer to enter into the terms of this letter amendment shall be deemed revoked. |
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Sincerely, |
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APPROVED AS TO FORM: |
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CITY OF LOS ANGELES |
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Michael N. Feuer, |
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Chief Financial Officer |
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The undersigned TCM hereby agrees to the foregoing letter amendment: |
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Date: May 6, 2020 |
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URW Airports, LLC |
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ATTEST: |
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By: |
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Title: |
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EVP and Group Director, Airports |
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.19.5
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BOARD FILE |
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RESOLUTION NO. 27118 |
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LAX Van Nuys City of Los Angeles Eric Garcetti Board of Airport Sean O. Burton Valeria C. Velasco Gabriel L. Eshaghian Justin Erbacci Chief Executive Officer |
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BE IT RESOLVED that, on recommendation of Management, the Board of Airport Commissioners approved the Second Letter Agreements for the Concessionaire Relief Program amending concession agreements at Los Angeles International Airport listed in Attachments 1, 2 and 3 to the Board-adopted staff report attached hereto and made part hereof; and BE IT FUTHER RESOLVED that said Second Letter Agreements will [i] abate or adjust the Minimum Annual Guarantee through June 30, 2021 for the individual concession agreements listed in said Attachments 1, 2 and 3, [ii] defer storage rent through December 31, 2020 and allow payback of deferred storage rent to commence January 1, 2021 for the individual concession agreements listed in Attachment 1 (collectively “In-Terminal Concession Agreements”), [iii] extend the current expiration dates of the respective individual In-Terminal Concession Agreements (as conditioned in the applicable Second Letter Agreements) and Terminal Media Operator Agreement by twenty-four (24) months, and [iv] authorize the Chief Executive Officer to have two (2) consecutive twelve (12)-month options to delay the required mid-term refurbishment dates for the respective individual In-Terminal Concession Agreements, in his or her sole discretion; and BE IT FURTHER RESOLVED that the Board authorized the Chief Executive Officer, or designee, to execute the Second Letter Agreements after approval as to form by the City Attorney and approval by the Los Angeles City Council; and BE IT FURTHER RESOLVED that this item is administratively exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article II, Section 2.f of the Los Angeles City CEQA Guidelines; and BE IT FURTHER RESOLVED that this action is subject to the provisions of Los Angeles City Charter Sections 606. |
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o0o I hereby certify that this Resolution No. 27118 is true and correct, as adopted by the Board of Airport Commissioners at its Special Meeting held on Thursday, October 1, 2020. |
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Grace Miguel – Secretary BOARD OF AIRPORT COMMISSIONERS Approved by City Council on October 21, 2020 |
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1 World Way Los Angeles California 90045-5803 Mail P.O. Box 92216 Los Angeles California 90009-2216 Telephone 855 463 5252 Internet www.lawa.org
SUBJECT: |
Second Letter Agreements for the Program that Amend Concession Agreements at Los Angeles International Airport |
Approve the Second Letter Agreements for the Concessionaire Relief Program that amends concession agreements at Los Angeles International Airport as follows: (i) to abate or adjust the Minimum Annual Guarantee through June 30, 2021 for the individual concession agreements listed in Attachments 1-3 (collectively “Concession Agreements”), (ii) defer Storage Rent through December 31, 2020 and allow the payback of deferred Storage Rent to commence January 1, 2021 for the individual concession agreements listed in Attachment 1 (collectively “In-Terminal Concession Agreements”), (iii) extend the current expiration dates of the respective individual In-Terminal Concession Agreements (as conditioned in the applicable Second Letter Agreements) and Terminal Media Operator Agreement (“TMO Agreement”) by twenty-four (24) months, and (iv) authorize the Chief Executive Officer to have two consecutive twelve—month options to delay the required mid-term refurbishment dates for the respective individual In-Terminal Concession Agreements in his or her sole discretion.
RECOMMENDATIONS:
Management RECOMMENDS that the Board of Airport Commissioners:
1. |
ADOPT the Staff Report; |
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DETERMINE that this action is administratively exempt from the California Environmental Quality Act (CEQA) pursuant to Article II, Section 2.f. of the Los Angeles City CEQA Guidelines; |
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Page 1 |
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Second Letter Agreement |
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Concession Rent Relief |
3. |
FIND that the use of competitive bidding for the 24-month extensions to the expiration dates for the In-Terminal Concessions and the Terminal Media Operator Agreement would be undesirable and impractical under Section 10.15(a)(10) of the City of Los Angeles Administrative Code and Section 371(e)(10) of the City of Los Angeles Charter; |
4. |
APPROVE the extension of the current expiration dates in the respective individual In-Terminal Concession Agreements (as conditioned in the applicable Second Letter Agreements) and the TMO Agreement by twenty-four (24) months; |
5. |
AUTHORIZE the Chief Executive Officer or his or her designee to have two consecutive twelve—month options to delay the required mid-term refurbishment dates for the respective individual In-Terminal Concession Agreements; |
6. |
APPROVE the proposed Second Letter Agreements for the Concessionaire Relief Program that amends the Concession Agreements listed in Attachments 1, 2 and 3; and, |
7. |
AUTHORIZE the Chief Executive Officer or his designee to execute the proposed Second Letter Agreements for the Concessionaire Relief Program that amends Concession Agreements at Los Angeles International Airport, subject to approval as to form by the City Attorney and approval by the Los Angeles City Council. |
DISCUSSION:
1. |
Purpose |
To temporarily revise the payment terms of Concessions Agreements, extend the expiration date by twenty-four months for the In-Terminal Concession Agreements and TMO Agreement, and authorize the Chief Executive Officer to have two consecutive twelve–month options to delay the required mid-term refurbishment dates for the respective In-Terminal Concession Agreements, in his or her sole discretion, and defer storage rent for the In-Terminal Concession Agreements.
2. |
Prior Related Actions |
April 16, 2020 — Resolution No. 27003
The Board of Airport Commissioners (Board) approved revisions of payment terms of Certain In-Terminal Concession Agreements and Rental Car Concession Agreements. Under these agreements, Concessionaires will make payment of deferred percent rents/fees accrued during the initial rent relief period of April 1, 2020 through June 30, 2020 in six (6) equal payments starting July 1, 2020.
In-Terminal Concession Agreements
The Terminal Commercial Manger (TCM) has two Agreements with original expiration dates of January 31, 2029 for LAA-8613 and June 30, 2029 for LAA-8640. LAWA amended the expiration dates in 2016 extending the term to June 30, 2032 for LAA-8613 and various dates for LAA-8640 of June 20, 2032 for Terminal 1, June 30, 2029 for Terminal 3, and September 30, 2030 for Terminal 6. The action requested here will extend the TCM Agreements expiration dates an additional 24 months to January 31, 2034 for LAA-8613 and Terminal 1 under LAA-8640, June 30, 2031 for Terminal 3 under LAA-8640, and September 30, 2032 for Terminal 6 under LAA-8640.
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Second Letter Agreement |
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Concession Rent Relief |
The Food and Beverage Concession Agreements with Areas USA LAX, LLC, DN Dakota JME, and Host International were entered into in 2010 with an original expiration date of June 30, 2021. LAWA amended the expiration dates in 2013 extending the term to June 30, 2023. The action requested here will extend the Food and Beverage Agreements expiration dates an additional 24 months to June 30, 2025.
The Retail Concession Agreements with Hudson-Magic Johnson Enterprises-Concourse Ventures, LLC, LAX Retail Magic 2 JV, LAX Retail Magic 3-4 JV, and XpresSpa were entered into in 2010 with an original expiration date of June 30, 2021. LAWA amended the expiration dates in 2013 extending the term to June 30, 2023. The action requested here will extend the Retail Concession Agreements expiration dates an additional 24 months to June 30, 2025.
The Duty Free Concession Agreement with DFS Group, LLC was entered into in 2012 with an original expiration date of September 30, 2023 and three one-year options to extend at LAWA’s discretion. LAWA amended the expiration date in 2013 extending the term to September 30, 2024. The action requested here will automatically allow LAWA to exercise two of the extension options of the Duty Free Concession Agreement resulting in an expiration date of September 30, 2026.
The Vending Concession Agreement with Bottling Group was entered into in 2015 with an expiration date of September 30, 2020. The action requested here will extend the Vending Concession Agreement expiration date an additional 24 months to September 30, 2022.
The Expedited Passenger Service Concession Agreement with AlClear was entered into in April 2020 with an expiration date of March 31, 2025. The action requested here will extend the Expedited Passenger Service Concession Agreement expiration date an additional 24 months to March 31, 2027.
Terminal Media Operator Agreement
The Terminal Media Operator (TMO) Agreement, entered into in 2014, had an original expiration date of December 31, 2020. The TMO Agreement contained a provision by which LAWA could extend the expiration date three (3) years to December 31, 2023 by providing notice to the TMO. LAWA recently provided notice and extended the expiration date. The action requested here will extend the TMO Agreement expiration date an additional 24 months to December 31, 2025.
3.Current Action
Concession Agreements require concessionaires to pay rent/fees to Los Angeles World Airports (LAWA) in an amount equal to the greater of defined percentages of their gross sales or a Minimum Annual Guarantee (MAG). The contractual MAG requirements are quite substantial due to the highly competitive concession environment at Los Angeles International Airport (LAX). Despite these high MAG requirements, the concessionaires have historically performed well because passenger volumes generated sales at levels that pushed concessionaire rent payments into percentage fee, meaning that the concessionaires’ businesses were performing at levels that exceeded the MAG threshold.
The decline in passenger traffic due to COVID-19 travel restrictions continues to impact concession operators and the MAGs continue to greatly exceed total sales, which is not sustainable for concessionaire businesses.
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Page 3 |
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Second Letter Agreement |
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Concession Rent Relief |
On April 16, 2020, the Board approved a relief package that amended the terms of concession agreements to allow concessionaires to pay percentage rent/fees instead of the MAG for the months of April, May and June 2020. Concessionaires were required to meet certain requirements in order to be eligible to receive this relief.
Decreased levels of passenger traffic due to COVID-19 travel restrictions have contributed to lower concession revenues. Further, at this time, LAWA does not know when passenger traffic will return to levels seen prior to the COVID-19 pandemic. Concessionaires, including the TCM and TMO, have informed LAWA that they are currently not realizing sufficient gross revenues that would allow them to pay the MAG amounts and likely will not be able to do so for some time.
Concessionaires have informed LAWA that rent/fee relief is needed to have a sustainable business during this period of passenger traffic decline. LAWA believes that if concessionaires have a sustainable business, it will also benefit LAWA with a continued revenue stream, and benefit passengers with uninterrupted access to concession offerings. Further, if a situation arises whereby LAWA would need to replace a concessionaire during times when passenger traffic is low, there may not be many potential concessionaires willing to commit to a concession agreement during a pandemic.
LAWA believes it is in the best interest of the concessionaires, LAWA, and the traveling public to provide additional relief in the form of a Second Letter Agreements to concessionaires to help them maintain sustainable businesses during this decline in passenger volume caused by the COVID-19 travel restrictions. Therefore, LAWA intends to provide additional relief in the form of Second Letter Agreements to concessionaires to help them maintain sustainable businesses during this decline in passenger volume caused by the COVID-19 travel restrictions.
Proposed Second Letter Agreements (“Second Letters”)
The proposed Second Letters will provide relief for In-Terminal Concession Agreements, the TMO Agreement, and the On-Airport Rental Car Concession Agreements listed on Attachments 1, 2 and 3 to this report for Concessionaires that either (i) executed the first relief agreement and complied with the terms of the first relief agreement, or (ii) if they did not execute the first relief agreement, they remain current on all monetary obligations due to LAWA under the Concession Agreements and all other currently existing contracts, agreements, leases, permits, or licenses with LAWA up to the date of the execution of the Second Letters through the end of the Second Letter Duration Period, as defined in this Board Report and the Second Letters. Further, the Second Letters require Concessionaires who have filed for bankruptcy protection prior to executing the Second Letters, or who may file for bankruptcy protection after executing the Second Letter, to have bankruptcy court approval to pay their monetary obligations (pre and post-petition obligations) under their agreement(s) with LAWA. Additionally, the Concessionaires will be required to pass along to all sub-concessionaires the same benefits received by the prime on a ratable basis.
The terms of the proposed Second Letters are:
In-Terminal Concessions Agreements (Listed in Attachment 1)
Concession |
Revise the terms as follows: 1. As to In-Terminal Concession Agreements (excluding the two concession agreements with TCM), beginning on July 1, 2020 |
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Second Letter Agreement |
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Concession Rent Relief |
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and ending on June 30, 2021 (“Duration Period”), LAWA will either: a) Only require current payment of the applicable percentage rent/fees defined in the respective agreement and abate payment of the MAG if the Concessionaire did not receive any funding through a federal program from which Concessionaire paid its monetary obligations under the Agreement; or, b) If the Concessionaire did receive any grants through a Federal program, only require current payment of the applicable percentage rent/fees defined in each respective agreement plus an adjusted MAG equal to the amount of any Federal grants applied by Concessionaire to payment of its monetary obligations under the Agreement. 2. As to the two TCM Concession Agreements, during the Duration Period, LAWA will either: a) Only require current payment of the applicable percentage/fees in the respective TCM Agreement, without reduction of the TCM Improvement Allowance or the TCM Management Fee, as such terms are defined in the TCM Agreements, except as follows: TCM may deduct up to 75% of the TCM Management Fee from the amount due to LAWA under the conditions set forth in the applicable Second Letters, and abate payment of the MAG if the TCM did not receive any funding through a federal program from which TCM paid its monetary obligations under the Agreement; or, b) If the TCM did receive any grant through a Federal program, only require the applicable percentage/fees in the respective TCM Agreement without reduction of the TCM Improvement Allowance or the TCM Management Fee, as such terms are defined in the TCM Agreements, except as follows: TCM may only deduct up to [**] the TCM Management from the amount due to LAWA under the conditions set forth in the applicable Second Letters, and TCM will also pay an adjusted MAG equal to the amount of any Federal grants applied by TCM to payment of its monetary obligations under the Agreement. |
Storage Rent |
Deferment of Storage Rent from July 1, 2020 through December 31, 2020, and extend the period that accrued deferred Storage Rent must be remitted in six (6) equal monthly installments to start January 1, 2021 through June 30, 2021. |
Mid-Term Refurbishment |
Authorize the Chief Executive Officer to have two consecutive twelve–month options to delay the required mid-term refurbishment dates for the respective In-Terminal Concession Agreements. TCM shall pass on the benefit of such extension of time period for mid-term refurbishment to its sub-concessionaires to the extent applicable. |
Term Extension |
Extend the current expiration dates by twenty-four (24) months only if, in addition to meeting the pre-conditions in the letter, the health insurance contribution has been paid as specified in the letter. There are different expiration dates for these concession agreements. Also requires TCM to agree to offer, to its sub-concessionaires, the same extension to the current expiration dates in each of the sub-concession agreements, and to enter into such extension with such sub-concessionaires if such offer is accepted. |
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Second Letter Agreement |
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Concession Rent Relief |
In consideration for the benefits provided to Concessionaires (and as a condition to Concessionaire’s right to receive such benefits), Concessionaires listed on Attachment 1 must meet the following requirements:
| ● | For each employee who (1) has been laid off, furloughed, or experienced reduced hours since March 1, 2020 and before June 30, 2020, and (2) for whom in February 2020 Concessionaire [or Licensee] made contributions or premium payments for healthcare coverage, Concessionaire [or Licensee] shall, no later than October 31, 2020, make contributions or premium payments in the same amount and for the same level of coverage as the Concessionaire [or Licensee] made for the employee in February 2020 for each of the four consecutive calendar months immediately subsequent to the employee’s layoff, furlough, or reduction in hours during which such employee remained laid off, furloughed, or experienced reduced hours (“Health Insurance Contribution”). Concessionaire [or Licensee] shall be credited with a month for each of the required four months in which Concessionaire [or Licensee] has previously made the above required contributions or payments. Alternatively, if Concessionaire [or Licensee] declined relief under the First Letter and has paid the MAG otherwise owed by Concessionaire [or Licensee] to LAWA for the months of April, May and June 2020, Concessionaire [or Licensee] shall receive credit for two (2) months of Health Insurance Contribution. Any percentage rents/fees already paid to LAWA for April, May and June 2020 will be credited towards any MAG owed for the same time period: |
Concessionaire may, at Concessionaire’s discretion, add a surcharge of up to three percent (3%) on concession sales to guests to be applied to the costs of the health insurance contribution requirement set forth above, until such time as the cumulative total amount of such surcharge equals the total amount of the Health Insurance Contribution paid by Concessionaire, or if such total amount has not been reached, until September 30, 2021, whichever comes first; and provided that such health insurance contribution is being made on a current basis during the period of such surcharge. TCM may permit its sub-concessionaires (in such sub-concessionaire’s discretion) to do the same regarding such sub-concessionaires’ sales to guests.
Extension of the In-Terminal Concession Agreements
The impacts of COVID-19 on Concessionaires continue to be extreme. Concessionaires with In-Terminal Concession Agreements, which includes the TCM, are not realizing sufficient gross revenues that allow them to pay the MAG amounts, amortize their investments, or earn the projected returns originally contemplated when the respective Request for Proposals were issued and when Agreements were executed. All of the In-Terminal Concession Agreements were procured through a Request for Proposal (“RFP”) that included definitive not-to-exceed termination dates that cannot be extended without an amendment to the Agreement.
The defined term (length of time) for the respective In-Terminal Concession Agreements contemplated that the successful proposer would be provided with a specific time frame to operate concession facilities and depreciate capital investments. Due to the dramatic decline in the concession business and near total evaporation of revenues, the current expiration dates of the individual In-Terminal Concession Agreements need to be extended by twenty-four (24) months in order for the concessionaires to receive the contract term that LAWA contemplated to provide them with sufficient operating time to recover their investments and remain viable businesses so that they can continue to generate revenue, and provide the public with continued concession services at the LAX terminals.
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Second Letter Agreement |
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Concession Rent Relief |
All of the In-Terminal Concession Agreements, except for the two TCM Agreements, will expire in the next three years. Although the TCM Agreements will expire between 2029 and 2032 inclusive, the extension of the current expiration dates by twenty-four (24) months is needed because the expiration dates of TCM’s sub-concessionaire agreements will expire sooner than the full term of the TCM Agreements. The unintended consequence of this is that there will not be sufficient time left on the TCM Agreements to allow the TCM to solicit new operators for these spaces after the existing sub-concession agreements expire because many spaces will be available for less than five years if the current expiration dates in the TCM Agreements remain unchanged. This short period will not allow sufficient time for the future operators to amortize the significant investment that is required to repurpose the concession areas.
In addition, the proposed Second Letters require TCM to agree to offer to its sub-concessionaires an extension of the current expiration dates in each of the sub-concession agreements by twenty-four months, and to enter into such extension with such sub-concessionaires if such sub-concessionaires accept such offer, which will then provide these sub-concessionaires additional time to recover investments and remain viable businesses so that they can continue to generate revenue, and provide the public with continued concession services at the LAX terminals.
In normal operating circumstances, staff would conduct a competitive process prior to the expiration date of an existing contract that had been competitively procured. However, when the Board finds that the use of competitive bidding would be undesirable and/or impractical under Section 10.15(a)(10) of the City of Los Angeles Administrative Code and Section 371 (e)(10) of the City of Los Angeles Charter, LAWA need not conduct such competitive process. In these economic times, and as discussed above, a competitive bidding process through RFPs for new concession agreements for the twenty-four (24) months period is impractical and undesirable. In addition, as discussed above, the extension of time requested is compatible with the City’s interests under City Charter Section 372.
Staff requests extending the current expiration date of individual In- Terminal Concession Agreements by twenty-four months to achieve the desired result discussed above. Therefore, LAWA staff recommends that the Board find that the proposed extension of the In-Terminal Concession Agreements is exempt from the competitive process under City Charter Section 371 (e)(10) and Los Angeles Administrative Code Section 10.15(a)(10).
Terminal Media Operator (Listed on Attachment 2)
Duration Period |
July 1, 2020 to June 30, 2021 |
Concession Fees |
1)Revise the terms to include the following: a) Only require current payment of the applicable percentage fees defined in the TMO Agreement and abate payment of the MAG if the TMO did not receive any funding through a federal program from which the TMO paid its monetary obligations under the Agreement; or, |
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Second Letter Agreement |
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Concession Rent Relief |
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b) If the TMO did receive any grant through a Federal program, only require current payment of the applicable percentage fees defined in the Agreement plus an adjusted MAG equal to the amount of any Federal grants applied by the TMO to payment of its monetary obligations under the Agreement. |
Term Extension |
Extend the existing expiration date by twenty-four months from December 31, 2023 to December 31, 2025. |
Extension of the Terminal Media Operator Agreement
The impacts of COVID-19 on the TMO continues to be extreme. The TMO is not realizing sufficient gross revenues from in terminal advertising and sponsorships to pay the MAG amounts, earn the projected returns originally contemplated when the RFP was issued and these Agreements were executed, or amortize the considerable costs required by the TMO Agreement (for example the costs of ongoing production of creative content for the iconic Clock Tower and Story Board features in the Tom Bradley International Terminal (TBIT). Given the ongoing COVID-19 near total evaporation of advertising and sponsorship revenues, an additional 24 month extension is necessary to allow the TMO to amortize those ongoing costs still required by the TMO Agreement and to remain a viable business operation at LAX ready to hit the ground running when passenger traffic and sponsors and advertisers return.
As noted in this report, extending the TMO Agreement by 24 months now is necessary to achieve LAWA’s interest in and desired result to have a successful revenue generating advertising and sponsorship program at LAX through 2025, it is not desirable or practical to run a competitive process for a new TMO Agreement for the period December 31, 2023 to December 31, 2025. In these economic times, for the reasons also noted above for the In-Terminal Concessions extension, the extension of the TMO contract through an RFP process for an additional two years is undesirable and impractical and the Board’s approval of the proposed amendment is compatible with the City’s interests per City Charter Section 372. Staff therefore requests the Board find that the use of competitive bidding for the extension requested would be undesirable and/or impractical under Section 10.15(a)(10) of the City of Los Angeles Administrative Code and Section 371 (e)(10) of the City of Los Angeles Charter, and LAWA need not conduct such competitive process.
On-Airport Rental Car Concession Agreements (listed in Attachment 3)
Duration |
July 1, 2020 through June 30, 2021 |
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Concession Rent/Fees |
1)Revise the terms to either: a) Only require current payment of the applicable percentage rent/fees defined in each Agreement and abate payment of the MAG if the Concessionaire did not receive any funding through a federal program from which Concessionaires paid its monetary obligations under the Agreement; or, b) If the Concessionaire did receive any grant through a Federal program, only require current payment of the applicable percentage rent/fees defined in each Agreement plus an adjusted MAG equal to the amount of any Federal grants applied by Concessionaire to payment of its monetary obligations under the Agreement. |
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Second Letter Agreement |
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Concession Rent Relief |
How this action advances a specific strategic plan goal and objective
This action advances this strategic goal and objective: Sustain a Strong Business: Diversify and grow revenue sources, and manage costs. Authorizing and approving the proposed extension to Temporary Relief and Forbearance Period Program will enable the concessionaires to substantially reduce operating expenses. Temporarily relieving the burden of the MAG component will allow concessionaires to pay rent/fees based on percentage of sales and airport revenues will recover in parallel to passenger level increases.
Action Requested
LAWA staff requests the Board authorize the Chief Executive Officer to execute the proposed Second Letters that, if accepted will temporarily revise the payment terms of Concession Agreements, extend the expiration date by twenty-four months for the In-Terminal Concession Agreements (as conditioned in the applicable Second Letters) and the TMO Agreement, authorize the Chief Executive Officer to have two consecutive twelve–month options to delay the required mid-term refurbishment dates for the respective In-Terminal Concession Agreements in his or her sole discretion, and defer Storage Rent and allow the payback of deferred Storage Rent, as set forth in this report.
Fiscal Impact
The Fiscal Impact of this action to extend the temporary relief program is projected to be an additional loss of approximately $132.9 million in FY2021 revenue, and is also estimated to reduce LAWA unrestricted cash in FY2021 by the same amount. The actual loss of revenue and reduction in unrestricted cash will largely depend on the levels of passenger traffic during the extended temporary period through June 30, 2021. LAWA staff has previously anticipated the possibility of extending the temporary relief program through the end of FY2021 and has budgeted FY2021 revenue accordingly.
4)Alternatives Considered
| ● | Take No Action - Taking no action would require all concessionaires to pay rent/fees at MAG levels established during normal passenger activity and corresponding sales levels. The continued dramatic decline in passenger traffic makes these MAG payments unsustainable. If the concessionaires remain obligated to pay the full MAG amounts during this downturn, they will not generate enough gross revenue to cover the MAG rent obligations which is unsustainable and likely cause them to cease operations. MAG that greatly exceeds revenue exposes LAWA to the risk that locations will close. Replacing concessionaires is a lengthy process and likely will result in additional lost revenue for LAWA as stores are shuttered during the period when passenger levels return. |
APPROPRIATIONS:
No appropriation of funds is required for this action.
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Second Letter Agreement |
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Concession Rent Relief |
STANDARD PROVISIONS:
1. |
This item, as a continuing administrative, maintenance and personnel-related activity, is administratively exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article II, Section 2.f. of the Los Angeles City CEQA Guidelines. |
2. |
This proposed document(s) is/are subject to approval as to form by the City Attorney. |
3. |
Actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606. |
4. |
This action is not subject to the provisions of the Living Wage/ Worker Retention Ordinances. |
5. |
This action is not subject to the provisions of the Business Enterprise (BE) Programs. |
6. |
This action is not subject to the provisions of the Affirmative Action Program. |
7. |
This action does not require a Business Tax Registration Certificate number. |
8. |
This action is not subject to the provisions of the Child Support Obligations Ordinance. |
9. |
This action is not subject to the insurance requirements of the Los Angeles World Airports. |
10. |
This action is not subject to the provisions of Charter Section 1022 (Use of Independent Contractors). |
11. |
This action is not subject to the provisions of the Contractor Responsibility Program. |
12. |
This action is not subject to the provisions of the Equal Benefits Ordinance. |
13. |
This action is not subject to the provisions of the First Source Hiring Program. |
14. |
This action is not subject to the provisions of Bidder Contributions CEC Form 55. |
15. |
This action is not subject to the provisions of the Iran Contracting Act. |
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Second Letter Agreement |
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Concession Rent Relief |
Attachment 1
Agreement Type |
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Tenant |
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Contract Number |
Terminal Commercial Management Concession Agreement |
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URW Airports, LLC |
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LAA-8640 |
Terminal Commercial Management Concession Agreement |
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URW Airports, LLC |
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LAA-8613 |
Airport Duty Free Merchandise Concession Agreement |
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DFS Group, L.P. |
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LAA-8647 |
Retail Concession Agreement (Hudson Group) |
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Hudson-Magic Johnson Enterprises-Concourse Ventures, LLC |
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LAA-8550 |
Retail Concession Agreement (Hudson Group) |
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LAX Retail Magic 2 JV |
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LAA-8551 |
Retail Concession Agreement (Hudson Group) |
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LAX Retail Magic 3-4 JV |
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LAA-8552 |
Retail Concession Agreement (Hudson Group) |
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LAX Retail Magic 3-4 JV |
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LAA-8542 |
Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
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LAA-8546 |
Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
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LAA-8547 |
Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
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LAA-8548 |
Branded Coffee and Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
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LAA-8843 |
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Fast Casual Dining and Branded Coffee Food and Beverage Agreement |
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Areas USA LAX, LLC |
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LAA-8964 |
Food and Beverage Concession Agreement (Delaware North Companies Travel Hospitality Services) |
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DN/Dakota JME 8589 Farmers, LLC |
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LAA-8589 |
Food and Beverage Concession Agreement (Delaware North Companies Travel Hospitality Services) |
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DN/Dakota JME 8549 Pucks, LLC |
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LAA-8549 |
Food and Beverage Concession Agreement (HMS Host Corp) |
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Host International, Inc. |
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LAA-8586 |
Food and Beverage Concession Agreement (HMS Host Corp) |
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Host International, Inc. |
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LAA-8587 |
Concession Agreement (For Vending Machine Services) |
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Bottling Group LLC |
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LAA-8882 |
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Non-Exclusive Space Use License Agreement (For Expedited Traveler Services) |
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AlClear, LLC |
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LAA-8946 |
Concession Agreement |
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XpresSpa |
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LAA-8543 |
Currency Exchange and Business Services Concession Agreement |
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Lenlyn Ltd dba ICE Currency Services |
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IAA-8831 |
Concession Phase2 Agreements 7-30-2020
Attachment 2
Agreement Type |
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Tenant |
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Contract Number |
Terminal Media Operator |
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JCDecaux Airport, Inc. |
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LAA-8796 |
Concession Phase2 Agreements 7-30-2020
Attachment 3
On-Airport RAC |
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Agmt # |
Alamo Rental (US)LLC |
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LAA-8139 |
Avis Rent A Car System, LLC |
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LAA-8137 |
Budget Rent A Car System, Inc. |
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LAA-8138 |
Dollar Rent A Car - DTG Operations, Inc. |
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LAA-8141 |
Enterprise Rent A Car Company of Los Angeles, LLC |
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LAA-8142 |
Fox Rent A Car, Inc. |
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LAA-8143 |
The Hertz Corporation |
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LAA-8136 |
National Rental (US) LLC |
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LAA-8140 |
Sixt Rent A Car, LLC |
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LAA-8870 |
Thrifty Car Rental - DTG Operations, Inc. |
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LAA-8144 |
Concession Phase2 Agreements 7-30-2020
September 30, 2020 |
Sent via email to mike.salzman@urw.com |
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Mike Salzman Exec Vice President & Group Director, Airports URW Airports, LLC 2049 Century Park East Los Angeles CA 90067 USA |
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LAX Van Nuys City of Los Angeles,
Eric Garcetti Mayor
Board of Airport Commissioners
Sean O. Burton President
Valeria C. Velasco Vice President
Gabriel L. Eshaghian
Justin Erbacci Chief Executive Officer |
Re: LETTER AMENDING Terminal Commercial Management Concession Agreement and LAA-8613 dated June 22, 2012 between CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS and URW Airports, LLC (said agreement as may have been heretofore amended is referred to herein as the “Agreement”).
This second letter (“Second Letter”) is made and entered into this 30 day of December, 2020, at Los Angeles, California by and between the CITY OF LOS ANGELES, a municipal corporation (hereinafter referred to as “City”), acting by and through its Board of Airport Commissioners (the “Board”) and URW Airports, LLC (“TCM”). In consideration of the recent decline in flight and passenger traffic at Los Angeles International Airport and the resulting temporary decline in airport revenue generating opportunities, by this Second Letter, the parties to the above-referenced Agreement hereby amend the Agreement in order to provide temporary rental relief on the terms and subject to the conditions set forth in this Second Letter. |
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1.Pre-conditions to Second Letter. The temporary rental relief under this Second Letter is only available to TCM under the following conditions:
a.First Letter. TCM may execute this Second Letter if it previously agreed to and timely signed the first letter for temporary rent relief from the City (“First Letter”) and TCM is, and will continue to be, in compliance with the requirements under the First Letter; or
b.Current on All Rent Payments Due to the City. Even if TCM did not sign the First Letter, TCM may execute this Second Letter if TCM remains current on all monetary obligations under the Agreement, as well as under any other currently existing contract, agreement, lease, permit, or license, with the City, up to the date of execution of this Second Letter by TCM and through the end of the Duration Period, as defined under Section 2.a below. For purposes of this section, the term “current” means in accordance with the “Los Angeles World Airports — Accounts Receivable Collection Policies and Procedures for Leases/Licenses/Permits/Concession Agreements, dated July 1, 2019,” as may be amended from time to time.
1 World Way Los Angeles California 90045-5803 Mail P.O. Box 92216 Los Angeles California 90009-2216 Telephone 855 463 5252 Internet www.lawa.org
Mike Salzman
September 30, 2020
Page 2
c.Failure to Comply Under Section l.a or 1.b. If TCM fails to comply, as required under Section l.a or 1.b above, any abated, adjusted or deferred rent or fees shall immediately become due and payable in full upon demand by the City, and the City shall have the right to enforce the Agreement as if there were no such abatement, adjustment or deferral.
d.Bankruptcy. If TCM has filed for bankruptcy, or files for bankruptcy during the Duration Period, TCM agrees and acknowledges that this Second Letter is entered into subject to the approval of the bankruptcy court in its bankruptcy case. In the event the Court does not approve this Second Letter, including the requirement that TCM pay all prepetition and post-petition obligations it owes to the City, this Second Letter will no longer be in force and TCM will be liable for all obligations it owes under the Agreement.
e.Sub-concessionaires. TCM shall provide the same pre-conditions in Sections 1.a through 1.d above, modified to apply to its sub-concessionaires (i.e., TCM’s “Concessionaires” as defined in the Agreement) and its letter to such sub-concessionaires that amends the respective Unit Concession Agreement.
2.Temporary Abatement or Adjusted MAG. Subject to the terms and conditions set forth in this Second Letter, the Agreement is temporarily modified as follows:
a.Temporary Abatement of MAG. If, at the time that TCM executes this Second Letter, TCM and its sub-concessionaires have not received, and do not receive for the twelve (12) month period beginning on July 1, 2020 and ending on June 30, 2021 (the “Duration Period), any grant through the Coronavirus Aid Relief and Economic Security Act, more commonly known as the CARES Act, or any other similar grant through a Federal program, that can be used to pay for any monetary obligations payable by TCM under the Agreement and/or for any monetary obligations payable by its sub-concessionaires under their respective Unit Concession Agreements (“Federal Grant”), the portion of the minimum annual guaranteed rent/fees (also sometimes referred to as MAG) payable by TCM under the Agreement is hereby abated for the Duration Period. For the Duration Period, TCM shall pay percentage rent/fees on gross revenues from TCM’s operations for such period based on the applicable percentage rate(s) or multiplier(s) set forth in the Agreement, with reduction for the TCM Improvement Allowance and the TCM Management Fee (as such terms are defined in the Agreement) but only to the extent expressly provided for below in this paragraph. If the amount of such percentage rent/fees for any given month during the Duration Period is less than or equal to the monthly MAG that would have been payable absent abatement, then such percentage rent/fees payable for such month shall be reduced by: (a) an amount equal to [**] of the TCM Management Fee applicable to such month
Phase 2-Relief-Second Ltr-TCMI LAA-8613
Mike Salzman
September 30, 2020
Page 3
(calculated as one-twelfth (1/12) of the annual TCM Management Fee for the applicable Year (as defined in the Agreement)) and (b) the TCM Improvement Allowance applicable for such month (calculated as one-twelfth (1/12) of the annual TCM Improvement Allowance for the applicable Year) up to the full amount of such percentage rent/fees payable for such month (it being understood that such reduction amounts shall not exceed the amount of the percentage rent/fees payable for such month, and any unapplied portion of the TCM Management Fee and/or the TCM Improvement Allowance for such month cannot be carried back or forward as a credit against the percentage rent/fees payable in any other month and cannot be otherwise applied as a credit or offset against the rent due under the Agreement for the applicable Year, notwithstanding anything in the Agreement). If the amount of such percentage rent/fees for any given month during the Duration Period is greater than the monthly MAG that would have been payable absent abatement, then such percentage rent/fees payable for such month shall be reduced by: (a) an amount equal to [**] of the TCM Management Fee applicable to such month (calculated as one-twelfth (1/12) of the annual TCM Management Fee for the applicable Year) and (b) the TCM Improvement Allowance applicable for such month (calculated as one-twelfth (1/12) of the annual TCM Improvement Allowance for the applicable Year) up to the full amount of such percentage rent/fees payable for such month (it being understood that such reduction amounts shall not exceed the amount of the percentage rent/fees payable for such month, and any unapplied portion of the TCM Management Fee and/or the TCM Improvement Allowance for such month cannot be carried back or forward as a credit against the percentage rent/fees payable in any other month and cannot be otherwise applied as a credit or offset against the rent due under the Agreement for the applicable Year, notwithstanding anything in the Agreement). The parties acknowledge and agree that the percentage rent/fees payable under the terms of the First Letter for the three (3) month period beginning April 1, 2020 and ending on June 30, 2020 shall be subject to reduction for the TCM Improvement Allowance and the TCM Management Fee as provided in the Agreement.
b.Temporary Adjusted MAG. If, at the time that TCM executes this Second Letter, TCM and/or its sub-concessionaires have received, or receive during the Duration Period, any Federal Grant, for the Duration Period, TCM shall pay percentage rent/fees on gross revenues from TCM’s operations for such period based on the applicable percentage rate(s) or multiplier(s) in addition to the MAG set forth in the Agreement, without reduction for the TMC Improvement Allowance or the TCM Management Fee (except as expressly permitted in Section 2.a above); provided, however, that, for the Duration Period, such MAG amount due will be equal to the amount of any Federal Grant used by TCM to pay for any of its monetary obligations under the Agreement plus the amount of any Federal Grant used by TCM’s sub-concessionaires to pay for any of their monetary obligations under their Unit Concession Agreements (“Adjusted MAG”), but such Adjusted MAG will not be more than that set forth in the Agreement.1 Commencing on July 1, 2020, TCM shall pay to the City such percentage rent/fees and Adjusted MAG on a current monthly basis.
Phase 2-Relief-Second Ltr-TCMI LAA-8613
Mike Salzman
September 30, 2020
Page 4
c.Written Documentation.
i.TCM shall provide written documentation to the City as follows:
| ● | Name/type of the Federal Grant received and used by TCM, if any, and applied to payment of any monetary obligation under the Agreement (“Concession Monetary Obligations”); and |
| ● | A verification of the amount of Adjusted MAG, which shall include, but is not limited to, the amount and proportion of Federal Grant used by TCM and applied to the payment of Concession Monetary Obligations, and the total amount of Federal Grant received (collectively “Written Verification”), if any. |
ii.TCM shall (1) cause its sub-concessionaires to provide the following to TCM, (2) monitor such sub-concessionaires’ adherence to providing the following, and (3) provide the City with the following from its sub-concessionaires:
| ● | Name/type of the Federal Grant received and used by such sub-concessionaire, if any, and applied to payment of any monetary obligation under the Unit Concession Agreement (“UCA Concession Monetary Obligations”); and |
| ● | A verification of the amount of Adjusted MAG, which shall include, but is not limited to, the amount and proportion of Federal Grant used by such sub-concessionaire and applied to the payment of UCA Concession Monetary Obligations, and the total amount of Federal Grant received (collectively “Concessionaire Written Verification”), if any. |
iii.Due Date for Written Documentation.
| ● | The written documentation required above regarding the Concession Monetary Obligations and Written Verification shall be provided to the City no later than thirty (30) days after TCM has paid an Adjusted MAG to the City. TCM shall provide any other written documentation requested by City within ten (10) business days of such request, unless otherwise extended, in writing, by the Chief Executive Officer. |
1 For example, if TCM received $100 from Federal Grant and applied $80 to any of its monetary obligations under the Agreement, TCM will pay $80 for the MAG provided, however, that the Adjusted MAG will not be more than the MAG set forth in the Agreement.
Phase 2-Relief-Second Ltr-TCMI LAA-8613
Mike Salzman
September 30, 2020
Page 5
| ● | The written documentation required above regarding the UCA Concession Monetary Obligations and Concessionaire Written Verification shall be provided to the City by TCM no later than thirty (30) days after such sub-concessionaire has paid an Adjusted MAG to the TCM. TCM shall cause its sub-concessionaires to provide any other written documentation requested by City to TCM within ten (10) business days of such request, unless otherwise extended, in writing, by the Chief Executive Officer. |
iv.Audit. The City’s rights under the Agreement to audit and/or examine TCM’s books and records, as well as all of TCM’s obligations under the Agreement regarding such City’s rights, apply to this Second Letter.
d.No Late Charges/Fees. For the Duration Period, TCM will not incur any late charges or be charged late fees or interest regarding the date for payment of the MAG under the Agreement.
e.Adjustment of MAG.
i.If it appears to the City, on the basis of information it is able to accumulate during the Duration Period, that TCM (a) received or is receiving Federal Grant and (b) utilized such Federal Grant for Concession Monetary Obligations, but to date has not paid any Adjusted MAG, the City shall invoice TCM the Adjusted MAG that is owed to date, and TCM agrees to pay such delinquent amount within 15 days of the invoice date.
ii.If it appears to the City, on the basis of information it is able to accumulate during the Duration Period, that TCM has not been paying the correct amount of Adjusted MAG under Section 2.b above, the City shall make necessary adjustments to the Adjusted MAG and any resulting debit that is owed to date will be invoiced by the City, and TCM agrees to pay such amount within 15 days of the invoice date.
3.In-Terminal Concession Storage Rent. Notwithstanding the First Letter, the payment of any in-terminal concession storage rents payable under the Agreement for the period beginning on April 1, 2020 and ending on December 31, 2020 (the “Storage Rent Deferral Duration”) shall be either: (a) paid on a current monthly basis; or (b) deferred such that the amount of in-terminal concession storage rent accrued for the Storage Rent Deferral Duration is paid by TCM to City in six (6) equal consecutive monthly installments beginning January 1, 2021 and continuing through June 30, 2021, at the option of TCM. The City will not impose any late fees or interest charges on such deferred payments provided that they are timely paid as set forth above.
Phase 2-Relief-Second Ltr-TCMI LAA-8613
Mike Salzman
September 30, 2020
Page 6
4.Mid-Term Refurbishment — The Chief Executive Officer may, in his or her sole discretion, exercise two consecutive twelve-month options to delay the dates or time period specified in the Agreement for mid-term refurbishment. If such option(s) is exercised, the Chief Executive Officer shall provide TCM with written notice of the extensions. TCM shall pass on the benefit of such extension(s) of time period for mid-term refurbishment provided to TCM by City to its sub-concessionaires to the extent applicable.
5.Extension of Current Expiration Date of Agreement. The current expiration date of the Agreement, as specified in the Agreement, is extended by twenty-four (24) months from January 31, 2032 to January 31, 2034, only if, in addition to meeting the pre-conditions under Section 1.a or 1.b above, TCM has paid the Health Insurance Contribution, as required under Section 6.a below, and TCM provides to the City by October 31, 2020 written documentation, satisfactory to the City in its sole discretion, that demonstrates that such payment was made, either through financial proof that such payment was made to the appropriate and applicable health insurance entity, or a letter from the appropriate and applicable health insurance entity stating that such payment was made. Section 4.1.3 of the Agreement is hereby amended to provide that there shall be no reduction to the Base Percentage Rent and/or Percentage Rent for the TCM Improvement Allowance during such 24-month extended term. TCM agrees to offer to each of its sub-concessionaires a 24-month extension to the current term under such sub-concessionaire’s Unit Concession Agreement, under the conditions provided, and to enter into such extension with such sub-concessionaire if such sub-concessionaire accepts such offer. The written documentation of proof of payment of the Health Insurance Contribution by such sub-concessionaire, satisfactory to TCM and City, shall be provided by TCM to the City. The additional term being offered as part of this Second Letter may cause a sub-concessionaire to have a term in its Unit Concession Agreement that goes beyond ten (10) years. Under such circumstances, the Agreement requires written consent of the Chief Executive Officer. The execution of this Second Letter by the Chief Executive Officer is an acknowledgement in writing that such term extension is approved by the Chief Executive Officer.
6.TCM Covenants. In consideration for the benefits provided to TCM under this Second Letter (and as a condition to TCM’s right to receive such benefits), TCM hereby agrees as follows:
a.For each employee who (1) has been laid off, furloughed, or experienced reduced hours since March 1, 2020 and before June 30, 2020, and (2) for whom in February 2020 TCM made contributions or premium payments for healthcare coverage, TCM shall, no later than October 31, 2020, make contributions or premium payments in the same amount and for the same level of coverage as the TCM made for the employee in February 2020 for each of the four consecutive calendar months immediately subsequent to the employee’s layoff, furlough, or reduction in hours during which such employee remained laid off, furloughed, or experienced reduced hours (“Health Insurance Contribution”). TCM shall be credited with a month for each of the required four months in which TCM has previously made the above required contributions or payments. Alternatively, if TCM declined relief under the First Letter and has paid the MAG otherwise owed by TCM to LAWA for the months of April, May and June 2020, TCM shall receive credit for two (2) months of the Health Insurance Contribution. Any percentage rents/fees already paid to LAWA for April, May and June 2020 will be credited towards any MAG owed for the same time period.
Phase 2-Relief-Second Ltr-TCMI LAA-8613
Mike Salzman
September 30, 2020
Page 7
b.TCM may permit its sub-concessionaires (in such sub-concessionaire’s discretion) to add a surcharge of up to [**] on concession sales to guests to be applied to the costs of their respective health insurance contribution requirement set forth in Section 6.e below, until such time as the cumulative total amount of such surcharge equals the total amount of the Health Insurance Contribution paid by such sub-concessionaire, or if such total amount has not been reached, until September 30, 2021, whichever comes first (“Surcharge Period”); and provided that such Health Insurance Contribution is being made on a current basis during the Surcharge Period. However, the actual surcharge received and applied to the Health Insurance Contribution during the Surcharge Period will not be considered to be a part of the gross revenues from TCM’s operations received during the Surcharge Period when calculating the percentage rent/fees to be paid by TCM to the City pursuant to Section 6.a above.
c.TCM shall demonstrate to the City’s reasonable satisfaction that TCM and its sub-concessionaires are not entitled to any business interruption insurance proceeds or similar benefits that are redundant to the rental relief provided in this Second Letter, and in the event that the City determines that TCM is or becomes entitled to any such benefits, the City reserves the right to decrease or limit the rental relief provided herein accordingly.
d.Additionally, TCM and its sub-concessionaires shall adhere to all federal requirements with respect to use of funds in the event they qualify for and receive Coronavirus Aid Relief and Economic Security Act, more commonly known as the CARES Act, or any similar grant through a Federal program.
e.TCM shall pass along to all of its sub-concessionaires the same abatement, adjustment and deferral benefits received by TCM pursuant to this Second Letter on a pro-rata and nondiscriminatory basis, provided such sub-concessionaire agrees in writing to comply with the provisions of Sections 6.a above with respect to such sub-concessionaire’s employees and complies with such obligations. For such purposes of applying Section 6.a above to such sub-concessionaire’s employees, the provisions of Section 6.a above shall be interpreted to provide as follows: “For each employee who (1) has been laid off, furloughed, or experienced reduced hours since March 1, 2020 and before June 30, 2020, and (2) for whom in February 2020 Concessionaire made contributions or premium payments for healthcare coverage, Concessionaire shall, no later than October 31, 2020, make contributions or premium payments in the same amount and for the same level of coverage as Concessionaire made for the employee in February 2020 for each of the four consecutive calendar months immediately subsequent to the employee’s layoff, furlough, or reduction in hours during which such employee remained laid off, furloughed, or experienced reduced hours (“Health Insurance Contribution”). Concessionaire shall be credited with a month for each of the required four months in which Concessionaire has previously made the above required contributions or payments. Alternatively, if Concessionaire declined relief under the First Letter and has paid the MAG otherwise owed by Concessionaire to TCM for the months of April, May and June 2020, Concessionaire shall receive credit for two (2) months of the Health Insurance Contribution. Any percentage rents/fees already paid to TCM for April, May and June 2020 will be credited towards any MAG owed for the same time period. Concessionaire may (in Concessionaire’s discretion) add a surcharge of up to [**] on concession sales to guests to be applied to the costs of the foregoing contribution requirement, until such time as the cumulative total amount of such surcharge equals the total amount of the Health Insurance Contribution paid by Concessionaire, or if such total amount has not been reached, until September 30, 2021, whichever comes first (“Surcharge Period”); and provided that Concessionaire is making such Health Insurance Contribution on a current basis during the Surcharge Period. However, the actual surcharge received and applied to the Health Insurance Contribution during the Surcharge Period will not be considered to be a part of the gross revenues received during the Surcharge Period when calculating the percentage rent/fees to be paid by Concessionaire to TCM under the Unit Concession Agreement.” TCM shall cause its sub-concessionaires to agree in writing to comply with the provisions of Section 6.a above with respect to such sub-concessionaire’s employees. If any such sub-concessionaire fails to so agree in writing or fails to comply with such obligations, then neither TCM nor such sub-concessionaire shall be entitled to receive the pro-rata share of such abatement, adjustment and deferral benefits allocable to such sub-concessionaire.
Phase 2-Relief-Second Ltr-TCMI LAA-8613
Mike Salzman
September 30, 2020
Page 8
7.Compliance With Agreement. TCM acknowledges and agrees that TCM’s right to receive the benefit of any abatement, adjustment and/or deferral of rent or fees set forth herein is absolutely conditioned upon TCM’s full, faithful and punctual performance of its obligations under the Agreement. If TCM defaults in the performance of any of its obligations under the Agreement, such abated, adjusted or deferred rent or fees shall immediately become due and payable in full upon demand by the City, and the City shall have the right to enforce the Agreement as if there were no such abatement, adjustment or deferral. Without limiting the generality of the foregoing, TCM acknowledges and agrees that: (i) TCM shall comply with all applicable City of Los Angeles ordinances, (ii) TCM shall have fully funded its Faithful Performance Guarantee as specified in the Agreement (and without reduction with regard to the temporary MAG abatement or reduction contemplated herein) and acknowledges that the City may draw upon the Faithful Performance Guarantee immediately and without prior notice in the event of a default by TCM under the Agreement, (iii) in the event that the City draws upon the Faithful Performance Guarantee, TCM agrees to replenish the Faithful Performance Guarantee to its full amount immediately upon request by City, and (iv) TCM shall continue to be current with respect to all payment obligations under the Agreement.
Phase 2-Relief-Second Ltr-TCMI LAA-8613
Mike Salzman
September 30, 2020
Page 9
8.Subordinate to Applicable Laws. The provisions of this Second Letter are intended to be subject and subordinate to any applicable federal, state or local laws and orders now or hereafter in effect to the extent that the terms of this Second Letter are inconsistent therewith.
9.No Third Party Beneficiaries. Nothing in this Second Letter, whether express or implied, is intended to grant to, or confer upon, any person or entity any rights or remedies under, or by reason of, this Second Letter other than the parties hereto, and no person or entity shall be deemed a third party beneficiary of this Second Letter or any provision hereof; provided however that the health plan or insurer to which contributions or premium payments in Section 6.a are due, may enforce such contributions or premium payments/obligations of TCM in accordance with the terms of the plan or insurance policy. Such enforcement shall not preclude or interfere with the City’s right to take enforcement action. TCM will cause its sub-concessionaires to have the same provision as it applies to such sub-concessionaires.
10.Full Force and Effect. Except as expressly amended and modified as set forth in this Second Letter, the terms and provisions of the Agreement remain the same and in full force and effect.
This Second Letter and any other document necessary for the consummation of the transaction contemplated by this Second Letter may be executed in counterparts, including counterparts that are manually executed and counterparts that are in the form of electronic records and are electronically executed. An electronic signature means a signature that is executed by symbol attached to or logically associate with a record and adopted by a party with the intent to sign such record, including facsimile or e-mail signatures. All executed counterparts shall constitute one amendment, and each counterpart shall be deemed an original. The parties hereby acknowledge and agree that electronic records and electronic signatures, as well as facsimile signatures, may be used in connection with the execution of this Second Letter and electronic signatures, facsimile signatures or signatures transmitted by electronic mail in so-called PDF format shall be legal and binding and shall have the same full force and effect as if a paper original of this amendment had been delivered that had been signed using a handwritten signature. All parties to this Second Letter (i) agree that an electronic signature, whether digital or encrypted, of a party to this Second Letter is intended to authenticate this writing and to have the same force and effect as a manual signature; (ii) intended to be bound by the signatures (whether original, faxed, or electronic) on any document sent or delivered by facsimile or electronic mail or other electronic means; (iii) are aware that the other party(ies) will rely on such signatures; and, (iv) hereby waive any defenses to the enforcement of the terms of this Second Letter based on the foregoing forms of signature. If this Second Letter has been executed by electronic signature, all parties executing this document are expressly consenting, under the United States Federal Electronic Signatures in Global and National Commerce Act of 2000 (“E-SIGN”) and the California Uniform Electronic Transactions Act (“UETA”) (California Civil Code §1633.1 et seq.), that a signature by fax, e-mail, or other electronic means shall constitute an Electronic Signature to an Electronic Record under both E-SIGN and UETA with respect to this specific transaction.
Phase 2-Relief-Second Ltr-TCMI LAA-8613
Mike Salzman
September 30, 2020
Page 10
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Phase 2-Relief-Second Ltr-TCMI LAA-8613
Mike Salzman
September 30, 2020
Page 11
IN WITNESS WHEREOF, City has caused this Second Letter to be executed on its behalf by the Chief Executive Officer, or his or her designee, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
APPROVED AS TO FORM: |
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CITY OF LOS ANGELES |
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Michael N. Feuer, |
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Department of Airports |
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The undersigned TCM hereby agrees to the foregoing Second Letter:
Date: September 30 , 2020 |
URW Airports, LLC |
ATTEST:
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Assistant Secretary |
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Executive Vice President - Airports |
Phase 2-Relief-Second Ltr-TCMI LAA-8613
Certificate Of Completion |
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Envelope Id: 9457CC3A184847A5A0D2BD8B80A3B1C7 |
Status: Completed |
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Subject: Please DocuSign: 2020-09-30 Phase 2-Relief-Second Ltr-TCM1 LAA-8613.pdf | ||
Source Envelope: |
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Document Pages: 11 |
Signatures: 2 |
Envelope Originator: |
Certificate Pages: 3 |
Initials: 0 |
Barbie Chang |
AutoNav: Enabled |
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2049 Century Park East, 41st floor |
Envelopeld Stamping: Enabled |
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Century City, CA 90067 |
Time Zone: (UTC-08:00) Pacific Time (US & Canada) |
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barbie.chang@urw.com |
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IP Address: 69.26.148.132 |
Record Tracking |
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Status: Original |
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Holder: Barbie Chang |
Location: DocuSign |
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9/30/2020 3:12:05 PM |
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barbie.chang@urw.com |
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Signer Events |
Signature |
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Mike Salzman |
/s/ Mike Salzman |
Sent: 9/30/2020 3:14:17 PM |
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Mike.SALZMAN@urw.com |
Viewed: 9/30/2020 3:46:59 PM |
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Security Level: Email, Account Authentication |
Signed: 9/30/2020 3:47:33 PM |
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(None) |
Signature Adoption:Drawn on Device |
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Using IP Address: 162.231.232.116 |
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Signed using mobile |
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Electronic Record and Signature Disclosure: |
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Accepted: 9/30/2020 3:46:59 PM |
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ID: ace5c4e4-3fcf-4e47-a92d-76198662e053 |
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Andrea Kahn |
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/s/ Andrea Kahn |
Sent: 9/30/2020 3:49:15 PM |
andrea.kahn@urw.com |
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Viewed: 9/30/2020 3:52:02 PM |
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Westfield |
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Signed: 9/30/2020 3:52:07 PM |
Security Level: Email, Account Authentication |
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Signature Adoption: Pre-selected Style |
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Using IP Address: 76.91.6.88 |
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Electronic Record and Signature Disclosure: |
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Not Offered via DocuSign |
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Signing Complete |
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9/30/2020 3:52:07 PM |
Completed |
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9/30/2020 3:52:07 PM |
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Electronic Record and Signature Disclosure created on: 7/31/2020 11:44:06 AM
Parties agreed to: Mike Salzman
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
Pursuant to the Electronic Signatures in Global and National Commerce Act (ESIGN) the Parties hereby expressly agree to the use of certificate-based electronic signature software operated by DocuSign for execution of this agreement/lease. The certificate based electronic signature generated by this software shall have the same legal effect as a handwritten signature and shall be admissible evidence of the Parties’ mutual intent to be legally bound by this agreement. The Parties declare that they have received all information required to be fully aware of the certificate-based electronic signature process, and each Party hereby waives any challenge against the enforceability of this agreement based on the use of such certificate-based electronic signature software.
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.19.6
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BOARD FILE NOS. |
LAA-8613F LAA-8640D |
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RESOLUTION NO. 27208 |
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BE IT RESOLVED that, on recommendation of Management, the Board of Airport Commissioners approved both the Sixth Amendment to Terminal Commercial Management Concession Agreement LAA-8613 and the Fourth Amendment to Terminal Commercial Management Concession Agreement LAA-8640 with URW Airports, LLC, covering management of the concessions program at Los Angeles International Airport, as referenced in the Board-adopted staff report attached hereto and made part hereof; and |
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LAX Van Nuys City of Los Angeles Eric Garcetti Mayor |
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BE IT FURTHER RESOLVED that the Board authorized the Chief Executive Officer to execute said Sixth Amendment to Terminal Commercial Management Concession Agreement LAA-8613 and Fourth Amendment to Terminal Commercial Management Concession Agreement LAA-8640, both with URW Airports, LLC, after approval as to form by the City Attorney and approval by the Los Angeles City Council; and |
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Board of Airport Commissioners Sean O. Burton President Valeria C. Velasco Vice President Gabriel L. Eshaghian |
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BE IT FURTHER RESOLVED that the Board further approved waiver of late fees totaling $87,885.54; and |
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BE IT FURTHER RESOLVED that the Board further approved transfer of not to exceed $1,750,000, for initial non-premise improvement costs to support concessions infrastructure in the Midfield Satellite Concourse, from WBS Element 1.12.19-700 (Midfield Satellite Concourse North) to WBS Element 1.21.17-700 (Non-Premises Improvements) per Board Resolution 27151; and |
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Beatrice C. Hsu Nicholas P. Roxborough Dr. Cynthia A. Telles Karim Webb Justin Erbacci Chief Executive Officer |
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BE IT FURTHER RESOLVED that issuance of permits, leases, agreements, gate and space assignments, and renewals, amendments or extensions thereof, or other entitlements granting use of existing airport facilities or its operations is exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article III, Class 1 (18)(c) of the Los Angeles City CEQA Guidelines; and |
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BE IT FURTHER RESOLVED that actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606. |
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I hereby certify that this Resolution No. 27208 is true and correct, as adopted by the Board of Airport Commissioners at its Regular Meeting held on Thursday, February 18, 2021. |
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Grace Miguel - Secretary BOARD OF AIRPORT COMMISSIONERS Approved by Los Angeles City Council on April 7, 2021 |
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1 World Way Los Angeles California 90045-5803 Mall P.O. Box 92216 Los Angeles California 90009-2216 Telephone 855 463 5252 Internet www.lawa.org
SUBJECT: |
Approval of the Sixth Amendment to Terminal Commercial Management Concession Agreement (LAA-8613) and Fourth Amendment to Terminal Commercial Management Concession Agreement (LAA-8640) with URW Airports, LLC at Los Angeles International Airport, approval to waive Late Fees, and approval of funds transfer for Non-Premise Improvements |
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Approve the Sixth Amendment to Terminal Commercial Management Concession Agreement (LAA-8613) and Fourth Amendment to Terminal Commercial Management Concession Agreement (LAA-8640) with URW Airports, LLC at Los Angeles International Airport; waive late fees totaling $87,885.54; and, transfer funds for Initial Non-Premise Improvement costs to support concessions infrastructure in the Midfield Satellite Concourse, in an amount not to exceed $1.75 Million.
RECOMMENDATIONS:
Management RECOMMENDS that the Board of Airport Commissioners:
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ADOPT the Staff Report. |
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DETERMINE that this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Article III, Class 1 (18)(c) of the Los Angeles City CEQA Guidelines. |
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APPROVE the Sixth Amendment to LAA-8613 and Fourth Amendment to LAA-8640 to the Terminal Commercial Management Concession Agreements with URW Airports, LLC. |
Page 1
URW Airports, LLC 6th & 4th Amendments
4.APPROVE the waiver of late fees totaling $87,885.54.
5.APPROVE transfer of funds in an amount not to exceed $1.75 million for Initial Non-Premise Improvements required for the Midfield Satellite Concourse.
6.FIND that these contracts are exempt from City Charter Sections 371(e)(10) and 732.
7.AUTHORIZE the Chief Executive Officer to execute the Sixth Amendment to LAA-8613 and the Fourth Amendment to LAA-8640 for the Terminal Commercial Management Concession Agreements with URW Airports, LLC, upon approval as to form by the City Attorney and approval of the Los Angeles City Council.
DISCUSSION:
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Purpose |
The proposed amendments to the Terminal Commercial Management Concession Agreements LAA-8613 and LAA-8640 will provide the ability to make changes to the concessions program managed by the Terminal Commercial Manager to better meet passenger needs and increase revenue to Los Angeles World Airports. The amendments will provide the Chief Executive Officer with authority to adjust premises to improve concession offerings and permit on-line preordering capabilities, which will allow guests to view and order concession offerings from their mobile devices. In addition, the amendment to Agreement LAA-8613 provides authority for up to [**] Initial Non-Premise Improvements funding to support concession spaces in the Midfield Satellite Concourse.
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Prior Related Actions |
·January 23, 2012 — Board Resolution 24670
The Board of Airport Commissioners approved the award of Terminal Commercial Manager Concession Agreement No. LAA-8613 to Westfield Concession Management, LLC for a term of 17-years, comprised of a two-year development period and a 15-year operating period, that required Westfield to develop, lease and manage convenience retail, specialty retail, food and beverage and certain passenger services in Tom Bradley International Terminal (TBIT) and Terminal 2, plus an option to redevelop the Theme Building.
·June 15, 2012 - Board Resolution 24819
The Board of Airport Commissioners approved the award of a Terminal Commercial Manager Concession Agreement No. LAA-8640 to Westfield Concession Management, LLC for a term of 17-years, comprised of a two-year development period and a 15-year operating period, that required Westfield Concession Management, LLC to develop, lease and manage convenience retail, specialty retail, food and beverage and certain passenger services in Terminals 1, 3 and 6.
·January 15, 2015 - Board Resolution 25616
The Board of Airport Commissioners approved the First Amendment to Agreement No. LAA-8613 to extend the term for premises in TBIT by three years, Terminal 2 for six months, and remove the option to redevelop the Theme Building. On November 19, 2015, Los Angeles World Airports consented to Terminal Commercial Manager’s name change from Westfield Concession Management, LLC to Westfield Airports, LLC.
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URW Airports, LLC 6th & 4th Amendments
·April 21, 2016 — Board Resolution 25935
The Board of Airport Commissioners approved the First Amendment to Agreement No. LAA-8640 to extend the term for the premises in Terminal 1 for three years and Terminal 6 for one year and three months.
·April 21, 2016 — Board Resolution 25936
The Board of Airport Commissioners approved the Second Amendment to Agreement No. LAA-8613 to extend the term for the premises in Terminal 2 for two years and six months, added the maintenance of Custom Architectural Features, and updated administrative terms.
·October 5, 2017 — Board Resolution 26355
The Board of Airport Commissioners approved the Third Amendment to Agreement No. LAA-8613 to add up to 30,000 square feet of concession space in the Midfield Satellite Concourse to the Premises. On November 8, 2018, Los Angeles World Airports) consented to the Terminal Commercial Manager’s name change from Westfield Airports, LLC to URW Airports, LLC.
·April 16, 2020 — Board Resolution 27003
The Board of Airport Commissioners approved a rent relief package for the period April to June 2020 that included waiver of the Minimum Annual Guarantee and deferral of percentage rent payments payable in six monthly installments beginning July 1, 2020.
·April 30, 2020 — Board Resolution 27007
The Board of Airport Commissioners approved the first amendment to extend Chief Executive Officer Consent to Permitted Use for digital pilot program by one year plus a one-year extension option.
·October 1, 2020 — Resolution 27118 (LAA-8647)
The Board of Airport Commissioners approved a Second Letter Agreement for a concessions relief program to abate and adjust the Minimum Annual Guarantee through June 30, 2021, and defer storage payments to January 2021, upon meeting of certain conditions for rent relief eligibility.
·November 19, 2020 — Resolution 27151
The Board of Airport Commissioners approved transfer of funds previously approved and appropriated to the WBS Element 1.12.19-700 (Midfield Satellite Concourse North) to Commercial Development Division’s account to find alternate means to support the Tenant Program.
3. |
Current Action |
Since 2012, URW Airports, LLC has managed the food and beverage and retail concessions programs in Terminals 1, 2, 3, 6, and the Tom Bradley International Terminal at Los Angeles International Airport, pursuant to two Terminal Commercial Management Concession Agreements (LAA-8613 and LAA-8640). URW Airports, LLC’s responsibilities as the Terminal Commercial Manager include developing, leasing, and managing concession operations in these facilities. The Terminal Commercial Manager manages a combination of 134 food and beverage and retail concessions, spread out over 122,000 square feet at Los Angeles International Airport. In calendar year 2019, the Terminal Commercial Management Agreement paid Los Angeles World Airports approximately [**] in revenue.
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Over the past eight years, Los Angeles World Airports and URW Airports, LLC staff have worked to improve the concession program and revenue opportunities at Los Angeles International Airport. Several opportunities have been identified to improve the functionality of the program that require amendments to the Terminal Commercial Management Concession Agreements. As described below, the proposed amendments will improve the Terminal Commercial Manager’s ability to adjust the concession programs, with the Los Angeles World Airports Chief Executive Officer’s consent, to meet passenger needs and increase revenue to Los Angeles World Airports, without having to bring an amendment to the Board of Airport Commissioners for each minor adjustment.
Concession Areas:
The proposed amendments will streamline the steps required to customize program offerings by authorizing the Chief Executive Officer to adjust short-term and long-term concession premises within the concession areas delineated in the Terminal Commercial Management Concession Agreements LAA-8613 and LAA-8640. The current process requires both the Board of Airport Commissioners and Los Angeles City Council approve changes to the premises. Allowing the Chief Executive Officer to approve these adjustments will allow Los Angeles World Airports to improve speed to market and allow the concession offerings to be more responsive to terminal operational requirements and guest demands.
Short term agreements of one year or less present an efficient way to introduce new, trendy concepts, and is designed to support small and emerging businesses that may not have sufficient funds to invest in long term infrastructure needs typical for airport concessions. Short term leases will provide turnkey space that will allow new small business vendors with a means to begin operations, without expensive space buildouts. The ability to quickly identify and secure concession spaces will enhance the ability to capture trends and maintain concepts that are fresh and up to date.
Midfield Satellite Concourse Development — Non-Premises Improvements:
On October 2017, Terminal Commercial Management Concession Agreement LAA-8613 was amended to add the Midfield Satellite Concourse to the agreement. As part of this amendment, it was agreed that URW Airports, LLC did not require any funding for Non-Premises Improvements based on the infrastructure development capability of the Turner | PCL, a Joint Venture, design-build contract (DA-4971) and the embedded Tenant Program Allowance funds reserved for future commercial development.
However, due to the protracted development schedule of tenant space within the Midfield Satellite Concourse due to COVID-19, the Turner | PCL Joint Venture was unable to perform this work within the project schedule, so Los Angeles World Airports transferred [**] in unused Tenant Program Allowance funds from DA-4971 to a segregated account for future use by the Los Angeles World Airports Commercial Development Division (Board Resolution No. 27151 approved on November 19, 2020).
The proposed amendment to Terminal Commercial Management Concession Agreement LAA-8613 will provide Los Angeles World Airports with the ability to engage URW Airports, LLC to deliver certain infrastructure improvements in accordance with the Non-Premises Improvement provisions of the Terminal Commercial Management Concession Agreement, subject to Board authorization.
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As part of this Board action, staff is requesting the transfer of [**] to perform Non-Premises Improvements to support the infrastructure development of concessions storage space in the Midfield Satellite Concourse, including ancillary Non-Premises Improvements related to Midfield Satellite Concourse concessions activation and infrastructure. Staff requests authority to acquire up to [**] in Non-Premises Improvements through cash payments in lieu of rent credits, to eliminate the accrued interest expense and reduction in net asset value. This [**] will be drawn from the [**] in unused Tenant Program Allowance funds that was transferred from the Midfield Satellite Concourse project per the above.
Online Ordering:
In 2018, Los Angeles World Airports initiated a digital pilot program in collaboration with URW Airports, LLC, to assess the impact of digitizing the shopping and dining experience. This pilot was very successful and expanded to the OrderNow (formerly Shop and Dine) application that currently is helping to provide touchless and contactless concessions during the COVID-19 pandemic. Based on results and success of this pilot program, Los Angeles World Airports recommends that URW Airports, LLC contract be expanded to include digital concessions management for URW Airport, LLC managed terminals at Los Angeles International Airport, upon expiration of the Digital Pilot Program.
The proposed amendments to Terminal Commercial Management Concession Agreements LAA-8613 and LAA-8640 will expand the Terminal Commercial Manager’s scope to include operation of a digital market place to allow guests to view and order concession offerings in Terminal Commercial Manager managed terminals on-line through their smart devices. The digital marketplace also provides cost efficiencies for development and maintenance of the digital program, as well as ensures a consistent standard of service. This also will provide a base for future expansion of a digital program through a separate Los Angeles World Airports competitive solicitation for a new vendor to offer in all terminals for airport wide offerings.
Lease Amendment Overview:
The proposed amendments will align the expiration dates of Terminal Commercial Management Concession Agreements LAA-8613 and LAA-8640 for consistency and better long-term planning as shown in the table below. All other terms of the Terminal Commercial Management Concession Agreements LAA-8613 and LAA-8640 remain unchanged.
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|
Term: Commencement Expiration |
March 1, 2012 January 31, 2032 |
No Change — March 1, 2012 January 31, 2034 |
|
Premises: (Concession space units) |
Total: Up to 99,672 SF Existing (69,672 SF) plus Midfield Satellite Concourse (up to 30,000 SF) |
No Change |
|
Term: Commencement Expiration |
June 22, 2012 T1: June 30, 2034 T3: June 30, 2031 T6: September 30, 2032 |
No Change — June 22, 2012 Tl: No Change T3: June 30, 2034 T6: June 30, 2034 |
Sole Source Determination:
Los Angeles World Airports determined that a solicitation resulting in the adjustment of premise spaces, use of non-premise space within a Terminal Commercial Manager Area, and digitization of the concessions program mobile ordering platform is not reasonably practicable and compatible with the City’s interest and found that the use of competitive bidding would be undesirable and impractical, consistent with Los Angeles City Charter Sections 371(e)(10) and 372. Streamlining the administrative process and reducing the time required to adjust concession spaces in the terminals will enhance Los Angeles World Airports’ ability to quickly provide the best concession offerings, maximize revenue, and support guest needs. A solicitation process is both time consuming and requires increased staff resources that can be more efficiently used to perform higher revenue generating priorities. The digitization of the URW Airports, LLC concessions program allows Los Angeles World Airports to analyze the impacts of an airport wide program prior to solicitation and full-scale implementation. URW Airports, LLC resources and current Unit Concession Agreement terms allowed for a quick deployment of digital shop and dine options made necessary during the pandemic to further low touch commerce initiatives.
Late Fee Waiver:
In addition to the proposed amendments described above, Los Angeles World Airports staff also requests approval to waive late fess that were imposed pursuant to Terminal Commercial Management Concession Agreement LAA-8613. [**]
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URW Airports, LLC 6th & 4th Amendments
[**]
[**]
How this action advances a specific strategic plan goal and objective
This action advances this strategic goal and objective: Sustain a Strong Business: Diversify and grow revenue sources, and manage costs. The amendments to the concession agreements will maximize revenue and improve passenger services. The timely adjustment of concession spaces will allow staff to efficiently provide up to date offerings and will support small business operators. The administrative efficiencies will reduce staffing and operational costs. The digital enhancements will allow Los Angeles World Airports to customize and improve its marketing program.
Action Requested
Staff requests the Board of Airport Commissioners: approve and authorize the Chief Executive Officer to execute the Sixth Amendment to Terminal Commercial Management Concession Agreement LAA-8613 and Fourth Amendment to Terminal Commercial Management Concession Agreement LAA-8640, upon approval as to form by the City Attorney and approval of the Los Angeles City Council; [**] approve funds transfer in an amount not to exceed [**] for Non-Premise Improvements required for the Midfield Satellite Concourse; and, find that these concession agreements are exempt from City Charter Sections 371(e)(10) and 372.
Fiscal Impact
Approving these amendments will result in no additional cost to Los Angeles World Airports [**]
[**]
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URW Airports, LLC 6th & 4th Amendments
4. Alternatives Considered
● Take No Action
Taking no action will result in staff’s inability to improve the concessions program managed by URW Airports, LLC to maximize revenue and efficiently address guest needs by timely adjustment of concession spaces, increased opportunities for small business operators, and enhancement of digital offerings.
APPROPRIATIONS:
Staff requests that funds in the not-to-exceed amount of [**] or the reimbursement of Non-Premises Improvements fees be transferred from WBS Element 1.12.19-700 (Midfield Satellite Concourse North) to WBS Element 1.21.17-700 (Non-Premises Improvements) per Board Resolution 27151.
STANDARD PROVISIONS:
1. |
The issuance of permits, leases, agreements, gate and space assignments, and renewals, amendments or extensions thereof, or other entitlements granting use of existing airport facilities or its operations is exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article III, Class 1 (18) (c) of the Los Angeles City CEQA Guidelines. |
2. |
This proposed document(s) is/are subject to approval as to form by the City Attorney. |
3. |
Actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606. |
4. |
URW Airports, LLC is required by contract to comply with the provisions of the Living Wage Ordinance. |
5. |
(LAA-8613) Procurement Services Division has reviewed this action (File No. 5124) and established the following ACDBE goals: Food/Beverage - 25 %; Retail - 20 %. URW Airports, LLC proposed 25% ACDBE participation for Food/Beverage and 20% ACDBE participation for Retail. URW Airports, LLC has achieved 29.3% ACDBE participation for Food/Beverage and 29.6% ACDBE participation for Retail, to date. |
(LAA-8640) Procurement Services reviewed this action (File No. 5163) and established the. following Airport Concessions Disadvantaged Business Enterprise Program (ACDBE) participation goals: Food/Beverage - 25%; Retail - 20%. URW Airports, LLC proposed 25% ACDBE participation for Food/Beverage and 20% ACDBE participation for Retail. URW Airports, LLC has achieved 32.4% ACDBE participation for Food/Beverage and 25.7% ACDBE participation for Retail, to date.
6. |
URW Airports, LLC is required by contract to comply with the provisions of the Affirmative Action Program. |
7. |
URW Airports, LLC has been assigned Business Tax Registration Certificate number 0002573628-0001-4. |
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8. |
URW Airports, LLC is required by contract to comply with the provisions of the Child Support Obligations Ordinance. |
9. |
URW Airports, LLC has approved insurance documents, in the terms and amounts required, on file with the Los Angeles World Airports. |
10. |
Pursuant to Charter Section 104 (g) staff determined that airport concession agreements are exempt from the provisions of Charter Section 1022 (Use of Independent Contractor). |
11. |
URW Airports, LLC must submit the Contractor Responsibility Program Pledge of Compliance and will comply with the provisions of the Contractor Responsibility Program. |
12. |
URW Airports, LLC must be determined by Public Works, Office of Contract Compliance to be in compliance with the provisions of the Equal Benefits Ordinance, prior to execution of Contract Amendment. |
13. |
URW Airports, LLC is required by contract to comply with the provisions of the First Source Hiring Program for all non-trade Airport jobs. |
14. |
URW Airports, LLC must submit the Bidder Contributions CEC Form 55 and will comply with its provisions. |
15. |
URW Airports, LLC has submitted a signed Labor Peace Agreement and will comply with its provisions. |
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|
BOARD File |
|
No. LAA-8613F |
SIXTH AMENDMENT TO LOS ANGELES INTERNATIONAL AIRPORT TERMINAL
COMMERCIAL MANAGEMENT CONCESSION AGREEMENT FOR THE TOM
BRADLEY INTERNATIONAL TERMINAL, TERMINAL 2 AND THE MIDFIELD
SATELLITE CONCOURSE AT LOS ANGELES INTERNATIONAL AIRPORT
BETWEEN THE CITY OF LOS ANGELES AND URW AIRPORTS, LLC
This Sixth Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2, Tom Bradley International Terminal and the Midfield Satellite Concourse at Los Angeles International Airport, between the City of Los Angeles and URW Airports, LLC (f/k/a Westfield Airports, LLC) (“Sixth Amendment”), is made and entered into this 30 day of April, 2021, (“Effective Date of Sixth Amendment”), at Los Angeles, California by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (hereinafter referred to as “City”), acting by order of and through its Board of Airport Commissioners (hereinafter referred to as “Board”) and URW AIRPORTS, LLC (“URW” or “TCM”), a Delaware limited liability company, concerning the amendment of the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2 and the Tom Bradley International Terminal (“TBIT”), LAA-8613, dated March 1, 2012, between the City and TCM.
RECITALS
WHEREAS, on March 1, 2012, City and URW entered into the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2 and TBIT, LAA-8613 (as amended, “Agreement”); and
WHEREAS, a First Amendment was entered into on July 9, 2015 (“First Amendment”); and
WHEREAS, a Second Amendment was entered into on June 3, 2016 (“Second Amendment”); and
WHEREAS, a Third Amendment was entered into on November 13, 2017 (“Third Amendment”), which among other things added premises in the Midfield Satellite Concourse; and WHEREAS, URW currently occupies space in Terminal 2, Tom Bradley International Terminal (“TBIT”) and the Midfield Satellite Concourse (“MSC”) pursuant to the Agreement; and
WHEREAS, City and URW amended the Agreement by executing a letter dated April 22, 2020 regarding temporary rent relief due to COVID-19 (“Fourth Amendment”);
WHEREAS, City and URW amended the Agreement by executing a letter dated September 30, 2020 regarding temporary rent relief due to COVID-19 (“Fifth Amendment”);
WHEREAS, on May 8, 2019 City and URW entered into a “Chief Executive Officer Consent to Permitted Uses” pursuant to Sections 3.4, 3.4.1 and 3.12 of the Agreement, which was amended on October 23, 2020; and
1
WHEREAS, pursuant to a merger of Westfield America Inc., a Missouri corporation, with and into URW WEA, LLC, a Delaware limited liability company, URW WEA, LLC became legally liable and responsible for all of the liabilities and obligations of Westfield America, Inc., guarantor for the Agreement, by operation of law; and
WHEREAS, the parties hereto desire to amend said Agreement,
NOW THEREFORE, the parties hereto, for and in consideration of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties hereto, do mutually agree that the Agreement, BE AMENDED AS FOLLOWS:
Amendment Section 1. Section 1.2.2, “TCM Proposals for Additional Concession Space in TBIT and Terminal 2”, and Section 1.2.3, “TCM Proposals for Additional Concession Space in the Midfield Satellite Concourse”, of the Agreement are hereby consolidated and amended and restated to read in their entirety as follows:
1.2.2TCM Proposals for Additional Concession Space in TBIT, Terminal 2 and the MSC1. During the Primary Term of this Agreement, TCM may submit written proposals to the Chief Executive Officer from time to time thereafter requesting that City consider making available to TCM unoccupied or otherwise unreserved space within any Facility for incorporation as a Unit into the Premises under this Agreement as additional concession space for a specific proposed Permitted Use (a “TCM Additional Space Proposal”).2 City shall be under no obligation to consider any such TCM Additional Space Proposal; provided, however, in the event that City decides (in the Chief Executive Officer’s sole discretion) to thereafter make such space identified in such TCM Additional Space Proposal available for the specific Permitted Use identified in such TCM Additional Space Proposal, then City agrees to give TCM written notice of City’s intent to so make such additional concession space available for such purpose. Such written notice by City will define and specify such additional concession space and set forth any additional terms and conditions being proposed by the Chief Executive Officer with respect to the addition of such concession space as a part of the Premises under this Agreement. Following receipt of such written notice, TCM and the Chief Executive Officer shall negotiate in good faith for a period of sixty (60) days to attempt to reach mutually agreeable terms and conditions with respect to such additional concession space. Such 60-day negotiation period may be extended by the Chief Executive Officer in his or her sole discretion. Any agreement regarding such additional concession space to the Premises shall be memorialized in writing, such as by a letter agreement or similar agreement reflecting the addition of any Unit, executed by both parties and approved as to form by City Attorney, which shall reflect the proportionally adjusted Base Rent and incorporate therein the applicable amended exhibit. In the event that TCM and the Chief Executive Officer are unable to reach mutually agreeable terms and conditions within such negotiation period, then TCM shall have no right to such additional concession space, and City shall be free to offer such additional concession space to other concessionaires on such terms and conditions as the Chief Executive Officer deems appropriate or to otherwise use such additional concession space for other purposes as the Chief Executive Officer deems appropriate. TCM acknowledges that the foregoing right to first negotiation set forth in this Section 1.2.2 applies only to the specific additional concession space and the specific Permitted Use that has been previously proposed by TCM in a written TCM Additional Space Proposal submitted to City. Nothing in this Section 1.2.2 shall be construed to require City to negotiate with TCM or otherwise make available to TCM any additional concession space within any Area or elsewhere in the Facilities that is not the subject of a TCM Additional Space Proposal or that is beyond the permitted scope of a TCM Additional Space Proposal, and TCM acknowledges that City may contract directly with present and future concessionaires for such concession space within the Area or Facilities without negotiating with or otherwise offering such concession space to TCM. Without limiting the generality of the foregoing sentence, nothing in this Section 1.2.2 or in any other provision of this Agreement shall be construed to require City to negotiate with TCM or otherwise make available to TCM any additional concession space within any Area or elsewhere in the Facilities that is being made available by City for use as an Airport-wide Concession, and TCM acknowledges that City may contract directly with present and future Airport-wide Concessionaires for concession space within the Facilities without negotiating with or otherwise offering such concession space to TCM.
1 Pursuant to the Third Amendment to the Agreement, inclusion of the MSC (as well as the remaining southern-most portion of the MSC, when and if built, that is not being built under the Midfield Satellite Concourse North Contract, DA-4971, also referred to as “southern-most portion of the MSC”), is based on the City Council’s finding of an exemption from the competitive bidding process because it was not reasonably practicable nor compatible with the City’s interests. Therefore, TCM may submit written proposals regarding the MSC and the southern-most portion of the MSC, as provided by, and in accordance with, Section 1.2.2 above.
2 The “Chief Executive Officer” is the same as the “Executive Director” for purposes of the Agreement.
2
Amendment Section 2. The Agreement is hereby amended to add the following section 1.2.3.
1.2.3 Short-Term Concession Space - Sections 1.2.1 and 1.2.2 of the Agreement do not apply to Short-Term Concession Space, as defined and addressed in Section 3.2.2.
Amendment Section 3. Section 1.8.3.1 of the Agreement is hereby amended and restated to read in its entirety as follows:
1.8.3.1 Initial Non-Premises Improvements for MSC. TCM may make improvements in the MSC outside TCM’s Premises if and only to the extent such improvements are approved in accordance with Section 1.8, including TCM’s acknowledgement that any such Initial Non-Premises Improvements are subject to the Board acting in its sole and absolute discretion.
Amendment Section 4. Sections 2.1 and 2.2 of the Agreement are hereby amended as follows:
Amendment Section 4.1. Section 2.1 of the Agreement is hereby amended and restated to read in its entirety as follows:
“2.1 Premises; Units; TCM Common Areas; TCM Storage Premises. The premises which are the subject of this Agreement are those premises (the “Premises”) that are delineated and approved by the Chief Executive Officer in a DIP Approval for an Area and delivered by City to TCM pursuant to a Delivery Notice issued by the Chief Executive Officer as provided in Article I above. No potential Premises location shall be considered a part of the Premises, unless and until such potential Premises location is delineated and approved by the Chief Executive Officer in a DIP Approval for an Area and turned over to TCM pursuant to a Delivery Notice issued by the Chief Executive Officer as provided in Article I above. Such exhibits will be amended by the CEO in accordance with exhibits approved in the DIP Approvals._The Premises will consist of Units, TCM Common Areas, and TCM Storage Premises (all as defined below). For purposes of this Agreement, the term “Unit(s)” means the individual concession spaces within the Premises as delineated in the DIP Approvals. Attached as Exhibits B-1 to B-6 are the Premises for concession spaces that have been approved by the Chief Executive Officer. Such exhibits will be amended by the CEO in accordance with exhibits approved in the DIP Approvals. For purposes of this Agreement, the term “TCM Common Area(s)” means areas located within the Premises as delineated in the DIP Approvals as common use areas for the general use and convenience of airline passengers and other users of the Facility in which the TCM Common Areas are located, such as food court seating areas and children’s play areas. For purposes of this Agreement, the term “TCM Storage Premises” means areas located within the Premises as delineated in the DIP Approvals as premises for the storage of equipment, inventory or supplies or for office space (if any). For avoidance of doubt, the parties acknowledge that areas within Units used for storage or office use are not TCM Storage Premises, but rather are considered a part of such Units.”
3
Amendment Section 4.2. Section 2.2 of the Agreement is hereby amended and restated to read in its entirety as follows:
“2.2 Primary Term. For purposes of this Agreement, the term “Primary Term” shall mean the period of time that TCM shall operate the Premises as the terminal commercial manager hereunder, which period shall commence for any given portion of the Premises a on the Delivery Date for such portion of the Premises and any associated Storage Space within TBIT, Terminal 2 and the MSC and shall end as to all portions of the Premises on the Expiration Date (unless the term of this Agreement is sooner terminated in accordance with the provisions of this Agreement). For purposes of this Agreement, the term “Expiration Date” shall mean June 30, 2034. No delay in the processing of any Definitive Improvement Plan or delay in the Delivery Date of any portion of the Premises shall extend the Expiration Date. TCM acknowledges and agrees that TCM has absolutely no rights under this Agreement to extend the Primary Term.”
Amendment Section 4.3. Section 2.2.1 of the Agreement is hereby deleted in its entirety.
Amendment Section 5. Section 3.2 (d) of the Agreement is hereby amended and restated to read in its entirety as follows:
(d) The plan for the marketing of concession opportunities and for the selection of Concessionaires to ensure an open, competitive selection process that provides opportunities for ACDBEs.
Amendment Section 6. The Agreement is hereby amended to add the following to Section 3.2:
4
(1)The plan for the pilot program under the “Chief Executive Officer Consent to Permitted Uses” (“Pilot Program”), entered into on May 8, 2019, as amended.
(m)The plan for such Pilot Program for the food & beverage and retail concessions, and any other services under the Agreement. TCM shall not implement such a plan without a prior written agreement between the City and TCM.
(n)The plan for Short-Term Concession Space (concession spaces within the Area or Facility with a term of no more than twenty-four (24) consecutive months and a space of no more than three hundred (300) square feet).
Amendment Section 7. The following is hereby added as Section 3.2.2 to the Agreement:
3.2.2Short-Term Concession Space. In order to elevate the passenger experience and ensure continued services to the traveling public during the term of this Agreement, the Chief Executive Officer may (but shall have no obligation) to consider making available to TCM certain unoccupied or otherwise unreserved space located within any Area or the Facility for a term of no more than twenty-four (24) consecutive months and with a maximum square footage of three-hundred (300) square feet for each such space (“Short-Term Concession Space”); and to permit TCM to enter into a Unit Concession Agreement with a concessionaire regarding such space (“Short-Term UCA”). For purposes of this Section, each Short-Term Concession Space consists of only one Unit.
3.2.2.1Procedure, Written Request by TCM and Approval by the Chief Executive Officer. Prior to executing a Short-Term UCA, TCM shall submit a written request to the Chief Executive Officer, requesting that the City consider making available to TCM unoccupied or otherwise unreserved space within any Area or the Facility for incorporation as a Unit into the Premises under this Agreement as additional concession space for the approved term of the Short-Term Concession Space. The written request by TCM shall include the proposed Permitted Use, the total square footage, the concept of the concession that will occupy the space, the length of the agreement between the TCM and concessionaire, a description of the method used to select the concessionaire and any other information required by the Chief Executive Officer. Any agreement regarding such Short-Term Concession Space between TCM and the City shall be memorialized by written agreement, such as a letter agreement or similar agreement, executed by both parties and approved as to form by City Attorney, which shall reflect the addition of the Short-term Concession Space and additional information, including but not limited to, rent and the term thereof, and incorporate therein the applicable amended exhibit.
(a)In the event TCM brings utilities or other supporting infrastructure to approved Short-Term Concession Space, at the discretion of the City, (i) the City shall acquire improvements from TCM in accordance with the terms of the Agreement or through a separate reimbursement agreement that may require Board and/or City Council approval; or (ii) the funding required to bring said utilities or other supporting infrastructure shall be considered investment in Premises Improvements for purposes of the Mid-Term Refurbishment. Any and all costs allocated to the Mid-Term Refurbishment are subject to the prior written approval of the Chief Executive Officer.
5
City shall have all rights to the ownership of the permanent improvements or supporting infrastructure within any Short-Term Concession Space in accordance with Section 7.16 (Ownership of Improvements). TCM shall be responsible for the removal of personal property from Short-Term Concession Space unless City requests otherwise in writing.
(b)TCM shall include all revenue from Short-Term Concession Space as TCM Revenues (as defined in the Agreement).
(c)The terms applicable to the Premises under this Agreement are applicable to the Short-Term Concession Space, except as otherwise provided in this Section 3.2.2 or elsewhere in the Agreement, and except as follows:
(i) |
Section 1.1 (“TCM’s Obligations During Pre-Term Development Phase”) and any other sections or provisions applicable to such TCM’s Obligations During Pre-Term Development Phase; |
(ii) |
Section 1.11 (“High Priority Area Late Performance Fees”) and any other sections or provisions applicable to such High Priority Area Late Performance Fees; |
(iii) |
Section 3.14 (“Storage Space”) and any other sections or provisions applicable to such Storage Space; |
(iv) |
Section 7.6 (“Mid-Term Refurbishment”) and any other sections or provisions applicable to such Mid-Term Refurbishment; and |
(v) |
Article IX (“Termination for Convenience”) and any other sections or provisions applicable such Termination for Convenience. |
3.2.2.2Short-Term UCA. The Short-Term UCAs may be entered into in accordance with goals outlined in the Business and Operation Plan and the selection of concessionaires shall be made through a process for Concessionaire selection described in the Business Operations Plan referenced in Section 3.2 (d) of this Agreement and submitted by TCM for such Short-Term Concession Space. Each and every Short-Term UCA is subject to the prior written approval of the Chief Executive Officer (“Consent to Short-Term UCA”), prior to its execution by TCM. The specific Permitted Use (as defined in Section 3.4 of the Agreement) for each Unit within the Premises is subject to the written approval of the Chief Executive Officer, such approval not to be unreasonably withheld, conditioned or delayed. The process for obtaining such approvals is to be set forth in the Business and Operations Plan and under Section 3.2.2.1 of the Agreement. Promptly following the Effective Date of Sixth Amendment, TCM shall develop the form of Short-Term UCA and submit such form the Chief Executive Officer for review and approval.
6
Any changes to the form of Short-Term UCA shall also be subject to the Chief Executive Officer’s review and approval, and the Chief Executive Officer may require reasonable changes to such form from time to time during the term of this Agreement. Unless otherwise provided in this Section 3.2.2, the provisions applicable to Unit Concession Agreements under Section 3.3 are applicable to a Short-Term UCA, except for the following: 3.3.5, 3.3.6 and 3.3.7.
3.2.2.3 Term of Short-Term UCA; City’s Right to Terminate and Termination or Expiration.
(a)No Short-Term UCA shall exceed the term or square footage of the specific Short-Term Concession Space provided to TCM by City. In any case, no Short-Term UCA may go beyond the expiration date specified in the Agreement for the specific terminal in which the Short-Term Concession space is located.
(b)All Short-Term UCAs shall be subject and subordinate to the rights of City under this Agreement.
(c)The City has the right to terminate any Short-Term Concession Space or Short-Term UCA, at any time, and for any reason, prior to the expiration of the term for such Short-Term Concession Space or Short-Term UCA upon sixty (60) days’ prior written notice to TCM. TCM understands and agrees, and shall cause its Concessionaires, to vacate such Short-Term Concession Space no later than the termination date. TCM further understands and agrees that neither TCM nor a Concessionaire has any right to occupy such Short-Term Concession Space beyond the termination date and that the City has the right to take immediate possession of such space upon the termination date, whether or not such space is with a Concessionaire under a Short-Term UCA.
(d)The early termination or expiration of the Short-Term Concession Space to TCM shall automatically terminate any Short-Term UCA and Consent to Short-Term UCA (as defined in this section) on the date of such termination or expiration.
(e)No Concessionaire shall assign or otherwise transfer all or any of its interest under a Short-Term UCA, without the Chief Executive Officer’s prior written consent.
(f)TCM shall include the provisions of this Section 3.2.2.3 in the Short-Term UCA.
Amendment Section 8.The Agreement is hereby amended to add the following section 3.2.3:
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3.2.3City Events. The parties acknowledge and agree that, from time to time, City will host certain global or nationwide events, including but not limited to the World Cup for soccer, and City has or may enter into agreements in connection therewith that affect the concessions at the Airport, provided that if any City Event has a material adverse impact on TCM’s rights under the Agreement (including TCM’s right to collect TCM Revenue’s from Concessionaires thereunder), then upon TCM’s written notice to City, TCM and City shall engage in good faith negotiations to address those impacts.
Amendment Section 9. Section 4.1.2 of the Agreement is hereby amended and restated to read in its entirety as follows:
4.1.2[**]
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Amendment Section 10.[**]
Amendment Section 11.[**]
Amendment Section 12.Section 5.11.1 of the Agreement is hereby amended to add the following as the last sentence to the section:
TCM acknowledges that “Laws” includes the California Consumer Privacy Act, as amended, or as may be hereafter be modified, amended or supplemented, and that such acknowledgement does not in any way limit the inclusion of any and all other Laws and the application of such Laws to TCM and TCM Parties.
Amendment Section 13.Sections 6.1 and 6.1.1 of the Agreement are hereby amended and restated to read in their entirety as follows, but such amendment and restatement in no way limits, amends or excuses the continuing obligations of TCM and TCM Parties under Section 5.11 (“Compliance with Laws”) to fully and faithfully observe and comply with all present and future Laws:
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6.1Compliance with Department of Transportation (DOT). This Agreement is subject to the requirements of the U.S. Department of Transportation’s regulations, 49 CFR Part 23. TCM agrees that it will not discriminate against any business owner because of the owner’s race, color, national origin, or sex in connection with the award or performance of this Agreement, any concession agreement, management contract, or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR Part 23. TCM agrees to include the above statements in any subsequent concession agreement or contract covered by 49 CFR part 23, that it enters and cause those businesses to similarly include the statements in further agreements.
City has established an Airport Concession Disadvantaged Business Enterprise Program in accordance with regulations of the U.S. Department of Transportation, 49 CFR, Part 23 (“ACDBE Rules”). Additionally, City strictly prohibits all unlawful discrimination and preferential treatment in contracting, subcontracting and purchasing under this Agreement (“Non-Discrimination Policy”). TCM shall comply with 49 Code of Federal Regulations, Part 23, ACDBE Rules and the Non-Discrimination Policy, as amended from time to time, and shall not discriminate against any business owner because of the owner’s race, color, national origin, or sex in connection with its performance under this Agreement or in contracting, sub-contracting or purchasing in connection with this Agreement. TCM shall cooperate with City in City’s program of recruiting, training, providing technical assistance and holding workshops to ensure that contracting, subcontracting and purchasing opportunities available under this Agreement are accessible and available to all qualified businesses owners, including “Airport Concession Disadvantaged Business Enterprises” (“ACDBEs”) as defined in the ACDBE Rules. In order to provide a fair opportunity for ACDBE participation, TCM shall make good faith efforts, within the meaning of the ACDBE Rules, to provide for a level of ACDBE participation in the concession operations (based on commercially useful function and distinct, clearly defined portion of the work) by Concessionaires contemplated by this Agreement equal to or greater than twenty percent (20%) for retail and service concessions and twenty five percent (25%) for food and beverage concessions. ACDBE participation will be calculated in accordance with the U.S. Department of Transportation’s ACBDE regulation, 49 CFR § 23.55. Failure to comply with the ACDBE Rules, Non-Discrimination Policy or 49 CFR Parts 23 and 26, referenced herein, shall constitute a material breach of this Agreement.
Amendment Section 14. Sections 6.2 and 6.3 of the Agreement are hereby amended and restated to read in their entirety as follows, but such amendment and restatement in no way limits, amends or excuses the continuing obligations of TCM and TCM Parties under Section 5.11 (“Compliance with Laws”) to fully and faithfully observe and comply with all present and future Laws:
6.2 Substitutions /Terminations/Additions. If specific ACDBEs are listed to perform the work and supply the materials, TCM shall utilize the specific ACDBEs listed on the Subcontractor Participation Plan to perform the work and supply the materials for which each is listed (“Listed ACDBE”). If a substitution or termination of any Listed ACDBE becomes necessary, TCM shall comply with all requirements of the ACDBE Rules and 49 CFR Part 26.53(f) and (g), including without limitation, performing good faith efforts to find another ACDBE subconcessionaire to substitute for the original ACDBE and obtaining written approval from the ACDBE Liaison Officer or designee (collectively (“ACDBELO” ) prior to such substitution or termination, and TCM will obtain written approval for any addition of an ACDBE. If a Listed ACDBE is terminated without the prior required consent, TCM shall not be entitled to any payment for work or material unless it is performed or supplied by the listed ACDBE. Further, if an ACDBE is terminated pursuant to this provision and 49 CFR Part 26.53(f) and (g), or fails to complete its contract for any reason, then TCM shall provide the ACDBELO with evidence satisfactory to the ACDBELO that TCM has made good faith efforts to substitute the terminated ACDBE with another ACDBE. If TCM fails to make good faith efforts, as determined by the ACDBELO, City shall have the right to cancel or terminate this Agreement in its entirety and all rights ensuing therefrom upon giving thirty (30) days written notice to TCM.
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6.3 Monthly Report. In order to assure compliance with the Non-Discrimination Policy and the federal requirements for the ACDBE Program, TCM shall submit, on a monthly basis, Subcontractor Utilization Form listing the ACDBE and non-ACDBE subconcessionaires, including the gross receipts related to ACDBE and non-ACDBE participations and/or perform a data entry submission into the Business Diversity Compliance Management System (also known as B2GNOW) or other reporting method and business enterprise compliance monitoring system selected by City along with its monthly gross revenue report to City. TCM shall submit monthly reports in the format, as described above or as required by the CEO and such other information as may be requested by the CEO to ensure compliance with the ACDBE Rules.
Amendment Section 15. The Agreement is hereby amended to add the following Section 6.4:
6.4 Compliance and Remedy. TCM shall carry out applicable requirements of 49 CFR Part 23 in the award and administration of agreements covered by Part 23. Failure by the TCM to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as the City deems appropriate and as may be provided in the ACDBE Rules, which may include but is not limited to: (a) withholding monthly progress payments; (b) assessing sanctions; (c) liquidated damages; and/or (d) disqualifying the TCM from future bidding as non-responsible.
Amendment Section 16. The Agreement is hereby amended to add the following Section 7.6.3:
7.6.3 Content of Mid-Term Refurbishment. As part of the “Mid-Term Refurbishment”, TCM may include, without limitation, investment in Non-Premises Improvements and Premises Improvements, digital initiatives and service enhancements in the “Mid-Term Refurbishment Plan” for consideration by the City.
Amendment Section 17. Section 7.12 of the Agreement is hereby amended and restated to read in its entirety as follows:
“7.12 Improvement Payment and Performance Bond. In connection with the Initial Non-Premises Improvements (including, without limitation, any improvements in non-Premises areas of the MSC), TCM Initial Premises Improvements, the Mid-Term Refurbishment and any other Alterations by TCM, TCM shall furnish, at its sole cost and expense, payment and performance bonds in the principal sum of the amount of the work of improvement proposed by TCM. In connection with the Concessionaire Initial Premises Improvements, the Mid-Term Refurbishment and any other Alterations by Concessionaires, TCM shall cause its Concessionaires to furnish, at their respective sole cost and expense, payment and performance bonds in the principal sum of the amount of the work of improvement proposed by each such Concessionaire. TCM shall comply with (and shall cause its Concessionaires to comply with) the provisions of California Civil Code Sections 3235 to 3242 or Section 3247 to 3252, as applicable to any such bond, by filing the original contract and any modifications thereto in the office of the Los Angeles County Recorder, together with the bond specified therein, and a conformed copy of such bond, filed for record as aforesaid, shall be furnished by TCM or its Concessionaires to City. If such work is being performed pursuant to a DIP Approval or a CIP Approval, TCM shall furnish such payment and performance bonds no later than the date set forth in the DIP Approval or the CIP Approval, as the case may be. If such work is not being performed pursuant to a DIP Approval or a CIP Approval or if no time is specified in the DIP Approval or the CIP Approval, such payment and performance bonds shall be furnished no later than ten (10) days prior to the commencement of such work. The payment and performance bonds shall be in substantially the same form as that of Exhibit F attached hereto (or such other form as may be reasonably prescribed from time to time by the City Attorney), be issued by a surety company satisfactory to Executive Director, and authorized and licensed to transact business in the State of California and be for the full amount stated above with the City of Los Angeles, Department of Airports, as obligee, and shall guarantee the full, faithful and satisfactory payment and performance by TCM or its Concessionaires, as the case may be, of their respective obligations to construct and install the aforementioned improvements, and shall guarantee the payment for all materials, provisions, supplies, and equipment used in, on, for, or about the performance of TCM’s (or its Concessionaires’) works of improvement or labor done thereon of any kind, and shall protect City from any liability, losses, or damages arising therefrom.”
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Amendment Section 18. The Agreement is hereby amended to add the following as the second and last paragraphs in Section 13.2:
In addition to (and not in lieu of) any indemnification and other protective provisions for the benefit of City set forth in the Agreement, TCM shall defend, indemnify and hold harmless City and City Agents from and against any and all Claims arising out of or in connection with the UCA and/or Short-Term UCA, except to the extent that any such Claims are due to the sole negligence or intentional misconduct of City or any City Agents. Without limiting the generality of the foregoing, TCM agrees to protect, defend in any and all courts and regulatory authorities in the world, indemnify, keep and hold harmless City and City Agents from and against any and all Claims arising out of (1) any threatened, alleged or actual claim that the end product and services provided by TCM or the TCM Parties violates any patent, copyright, trademark, trade secret, know-how, proprietary right, other forms of intellectual property right, moral right, right of publicity, privacy, or any other rights of any third party anywhere in the world; and (2) any breach in cyber security and data privacy related to the Agreement, Unit Concession Agreement and Short-Term UCA, irrespective of intent, however the breach takes place, whoever causes the breach, and wherever the breach originates from in the universe. TCM agrees to, and shall, pay all damages, settlements, expenses and costs, including remedial costs (e.g., ID theft monitoring expenses) to assist injured City users, costs of investigation, court costs and attorney’s fees, and all other costs and damages sustained or incurred by City arising out of, or relating to, the matters set forth above. To the extent that there is a conflict between the provisions herein and the provisions in the “Chief Executive Officer Consent to Permitted Uses, LAA-8613 and LAA-8640” (“CEO Consent”), the provisions of the CEO Consent shall supersede as it relates to the “Pilot Program” as described in the CEO Consent.
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In TCM’s defense of the City under this Section, negotiation, compromise, and settlement of any action, the City shall retain discretion in and control of the litigation, negotiation, compromise, settlement, and appeals therefrom, as required by the Los Angeles City Charter, particularly Article II, Sections 271, 272 and 273 thereof. The provisions of this Section shall survive the expiration or termination of the Agreement.
Amendment Section 19. Section 16.26 of the Agreement is hereby amended and restated to read in its entirety as follows, but such amendment and restatement in no way limits, amends or excuses the continuing obligations of TCM and TCM Parties under Section 5.11 (“Compliance with Laws”) to fully and faithfully observe and comply with all present and future Laws:
16.26 Alternative Fuel Vehicle Requirement Program.
16.26.1 TCM shall comply and shall cause its Concessionaire to comply with the provisions of the alternative fuel vehicle requirement program (the “Alternative Fuel Vehicle Requirement Program”). The rules, regulations, and requirements of the Alternative Fuel Vehicle Program are attached as Exhibit P-1 and made a material term of this Agreement. Concessionaire shall complete and submit to City the vehicle information required on the reporting form accessible online at https://sbo.lawa.org/altfuel on a semi-annual basis. The reporting form may be amended from time to time by City.
16.26.2 TCM acknowledges and shall notify Concessionaire that compliance with the Alternative Fuel Vehicle Requirement Program does not relieve TCM or Concessionaire from complying with any and all applicable federal, state and local regulations.
Amendment Section 20. Section 16.18, “Living Wage Ordinance General Provisions”, of the Agreement is hereby amended and restated to read in its entirety as follows, but such amendment and restatement in no way limits, amends or excuses the continuing obligations of TCM and TCM Parties under Section 5.11 (“Compliance with Laws”) to fully and faithfully observe and comply with all present and future Laws:
16.18 General Provisions; Living Wage Policy. TCM shall comply with the Living Wage Ordinance (“LWO”), Los Angeles Administrative Code Section 10.37 et seq., as amended from time to time, a copy of which is attached hereto for convenience as Exhibit “K-1.” Under the provisions of Section 10.37.6(c) of the Los Angeles Administrative Code, violation of the LWO shall constitute a material breach of the Agreement and City shall be entitled to terminate this Agreement and otherwise pursue legal remedies that may be available, including those set forth in the LWO, if City determines that TCM violated the provisions of the LWO. TCM further agrees that it shall comply with federal law proscribing retaliation for union organizing.
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Any subcontract agreement entered into by TCM for work to be performed under this Agreement must include an identical provision.
Amendment Section 21. Section 16.18.2, “Compliance; Termination Provisions and Other Remedies: Living Wage Policy”, of the Agreement is hereby amended and restated to read in its entirety as follows, but such amendment and restatement in no way limits, amends or excuses the continuing obligations of TCM and TCM Parties under Section 5.11 (“Compliance with Laws”) to fully and faithfully observe and comply with all present and future Laws:
16.18.2 Compliance; Termination Provisions and Other Remedies: Living Wage Policy. If TCM and its Concessionaires are not initially exempt from the LWO, TCM shall comply, and shall require its Concessionaires to comply, with all of the provisions of the LWO, including payment to employees at the minimum wage rates, effective on the execution date of this Agreement. If TCM is initially exempt from the LWO, but later no longer qualifies for any exemption, TCM shall, at such time as TCM is no longer exempt, comply with the provisions of the LWO. Under the provisions of Section 10.37.6(c) of the Los Angeles Administrative Code, violation of the LWO shall constitute a material breach of this Agreement and City shall be entitled to terminate this Agreement and otherwise pursue legal remedies that may be available, including those set forth in the LWO, if City determines that TCM violated the provisions of the LWO. The procedures and time periods provided in the LWO are in lieu of the procedures and time periods provided elsewhere in this Agreement. Nothing in this Agreement shall be construed to extend the time periods or limit the remedies provided in the LWO.
Amendment Section 22. Section 16.18.3, “Subcontractor Compliance”, of the Agreement is hereby amended and restated to read in its entirety as follows, but such amendment and restatement in no way limits, amends or excuses the continuing obligations of TCM and TCM Parties under Section 5.11 (“Compliance with Laws”) to fully and faithfully observe and comply with all present and future Laws:
16.18.3 Subcontractor Compliance. TCM agrees to include, in every subcontract or Unit Concession Agreement covering City property entered into between TCM and any subcontractor or Concessionaire, a provision pursuant to which such subcontractor or Concessionaire (A) agrees to comply with the Living Wage Ordinance and the Worker Retention Ordinance with respect to City’s property; (B) agrees not to retaliate against any employee lawfully asserting noncompliance on the part of the subcontractor or Concessionaire with the provisions of either the Living Wage Ordinance or the Worker Retention Ordinance; and (C) agrees and acknowledges that City, as the intended third-party beneficiary of this provision may (i) enforce the Living Wage Ordinance and Worker Retention Ordinance directly against the subcontractor or Concessionaire with respect to City property, and (ii) invoke, directly against the subcontractor or Concessionaire with respect to City property, all the rights and remedies available to City under Section 10.37.6 of the Living Wage Ordinance and Section 10.36.3 of the Worker Retention Ordinance, as same may be amended from time to time.
Amendment Section 23. Section 16.19, “Service Contract Worker Retention”, of the Agreement is hereby amended and restated to read in its entirety as follows, but such amendment and restatement in no way limits, amends or excuses the continuing obligations of TCM and TCM Parties under Section 5.11 (“Compliance with Laws”) to fully and faithfully observe and comply with all present and future Laws:
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16.19 Worker Retention Ordinance. TCM shall comply with the Worker Retention Ordinance (“WRO”), LAAC Section 10.36 et seq., as amended from time to time. Any subcontract entered into by TCM for work to be performed under this Agreement must include an identical provision. Under the provisions of Section 10.36.3(c) of the Los Angeles Administrative Code, City has the authority, under appropriate circumstances, to terminate the Agreement and otherwise pursue legal remedies that may be available if City determines that the subject contractor violated the provisions of the WRO.
Amendment Section 24. TCM’s Pledge of Compliance regarding the Contractor Responsibility Program is attached hereto as Exhibit N-1.
Amendment Section 25. The following is hereby added as Section 16.50 to the Agreement:
16.50 Prompt Payment. Unless TCM and subcontractor have agreed otherwise, TCM shall pay to subcontractor not later than seven (7) days after receipt of each payment, the respective amounts allowed the TCM on account of the work performed by the subcontractor, to the extent of each subcontractor’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a payment from TCM to a subcontractor, TCM may withhold no more than 150 percent of the disputed amount. TCM shall include the following in its Unit Concession Agreements and Short-Term UCAs:
“Prompt Payment. Unless Concessionaire and subcontractor have agreed otherwise, Concessionaire or subcontractor shall pay to any subcontractor, not later than seven (7) days after receipt of each payment, the respective amounts allowed the Concessionaire on account of the work performed by the subcontractors, to the extent of each subcontractor’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a payment from the Concessionaire or subcontractor, the Concessionaire or subcontractor to a subcontractor, the Concessionaire or subcontractor may withhold no more than One Hundred Fifty Percent (150%) of the disputed amount. Concessionaire shall include this provision in all of its subcontracts.”
Amendment Section 26. Due to the aforementioned merger between Westfield America Inc. and URW WEA, LLC, URW WEA, LLC is the successor to Westfield America, Inc., and therefore the guarantor under the Guaranty Agreement (Exhibit “D” of the Agreement) by operation of law. Accordingly, the contact information and address for written notices to the Guarantor in section 15 on pages 5 and 6 of the Guaranty Agreement are hereby amended to read in their entirety as follows:
Written notices to Guarantor hereunder shall be sent and addressed to:
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2049 Century Park E 42nd Fl
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ATTN: Office of Legal Counsel
or to such other address as Guarantor may designate by written notice to City.
Amendment Section 27. The “Basic Information” section of the Agreement regarding “TCM’s Address” is hereby amended and restated to read in its entirety as follows:
All notices sent to TCM under the TCM Agreement shall be sent to:
URW Airports, LLC
2049 Century Park East, 40th Floor
Los Angeles, California 90067
Attention: Office of Legal Counsel
All notices sent to TCM under the TCM Agreement shall be sent to the above address, with copies to:
URW Airports, LLC
2049 Century Park East, 40th Floor
Los Angeles, California 90067
Attention: Executive Vice President, Airports (Mike Salzman)
Amendment Section 28. The Basic Information of the Agreement is hereby amended and restated to conform with the provisions of this Sixth Amendment, to the extent that the provisions in the Basic Information have been modified by the provisions of this Sixth Amendment.
Amendment Section 29. The parties hereby represent and covenant to the other, to the best of their knowledge, without independent inquiry, as follows: (1) neither party is in default in the performance of any of the terms or provisions of the Agreement; (2) neither party has nor claims any setoffs or credits against the payment of Rent or other amounts payable to the other under the Agreement; and (3) the parties shall be entitled to rely on the accuracy of the foregoing representation and covenants, and each party hereby releases the other from any claims relating to the foregoing matters.
Amendment Section 30. TCM hereby re-certifies all of its representations and warranties under Section 16.42 of the Agreement, including all of its subsections.
Amendment Section 31. Except as specifically provided herein, this Sixth Amendment shall not in any manner alter, change, modify, or affect any of the rights, privileges, duties, or obligations of either of the parties hereto, under, or by reason of said Agreement, as amended.
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Amendment Section 32. This Sixth Amendment and any other document necessary for the consummation of the transaction contemplated by this Sixth Amendment may be executed in counterparts, including counterparts that are manually executed and counterparts that are in the form of electronic records and are electronically executed. An electronic signature means a signature that is executed by symbol attached to or logically associate with a record and adopted by a party with the intent to sign such record, including facsimile or e-mail signatures. All executed counterparts shall constitute one amendment, and each counterpart shall be deemed an original. The parties hereby acknowledge and agree that electronic records and electronic signatures, as well as facsimile signatures, may be used in connection with the execution of this Sixth Amendment and electronic signatures, facsimile signatures or signatures transmitted by electronic mail in so-called PDF format shall be legal and binding and shall have the same full force and effect as if a paper original of this amendment had been delivered that had been signed using a handwritten signature. All parties to this Sixth Amendment (i) agree that an electronic signature, whether digital or encrypted, of a party to this Sixth Amendment is intended to authenticate this writing and to have the same force and effect as a manual signature; (ii) intended to be bound by the signatures (whether original, faxed, or electronic) on any document sent or delivered by facsimile or electronic mail or other electronic means; (iii) are aware that the other party(ies) will rely on such signatures; and, (iv) hereby waive any defenses to the enforcement of the terms of this Sixth Amendment based on the foregoing forms of signature. If this Sixth Amendment has been executed by electronic signature, all parties executing this document are expressly consenting, under the United States Federal Electronic Signatures in Global and National Commerce Act of 2000 (“E-SIGN”) and the California Uniform Electronic Transactions Act (“UETA”) (California Civil Code §1633.1 et seq.), that a signature by fax, e-mail, or other electronic means shall constitute an Electronic Signature to an Electronic Record under both E-SIGN and UETA with respect to this specific transaction.
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IN WITNESS WHEREOF, City has caused this Sixth Amendment to be executed on its behalf by the Chief Executive Officer, or his or her authorized signatory, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
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MICHAEL N. FEUER, |
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City of Los Angeles, Department of Airports |
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04/30/2021 |
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Chief Financial Officer |
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(SIGNATURE PAGE CONTINUES)
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URW AIRPORTS, LLC |
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Assistant Secretary |
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ACKNOWLEDGEMENT OF GUARANTOR
The undersigned, URW WEA LLC, a Delaware limited liability company (herein, “Guarantor”), who is the successor by merger to Westfield America, Inc., a Missouri corporation, hereby represents, acknowledges, and agrees as follows: (1) Guarantor has reviewed the foregoing Sixth Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2, Tom Bradley International Terminal and the Midfield Satellite Concourse at Los Angeles International Airport, between the City of Los Angeles and URW Airports, LLC (f/k/a Westfield Airports, LLC) (“Sixth Amendment”); (2) Guarantor is the guarantor of TCM’s obligations under the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminal 2, Tom Bradley International Terminal and the Midfield Satellite Concourse at Los Angeles International Airport, between the City of Los Angeles and URW Airports, LLC (f/k/a Westfield Airports, LLC), LAA-8613, as amended (“TCM Agreement”), pursuant to that certain Guaranty Agreement executed concurrently with the execution of the TCM Agreement (the “Guaranty”); (3) Guarantor approves of TCM’s execution of the Sixth Amendment and agrees with its terms; and (4) the Guaranty is hereby reaffirmed, and the Guaranty is and remains in full force and effect and continues to guarantee the prompt payment and performance by TCM of all of the terms of the TCM Agreement, as amended. This Acknowledgement of Guarantor has been executed as of the date of execution of the Sixth Amendment by TCM.
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Certificate Of Completion | ||||
Envelope Id: CB21E98720E5440E883EB326484C16AD |
Status: Completed |
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Subject: Please DocuSign: LAA-8613 6th amendment 2.3.2021.pdf | ||||
Source Envelope: |
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Document Pages: 20 |
Signatures: 4 |
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Certificate Pages: 3 |
Initials: 0 |
Barbie Chang |
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AutoNav: Enabled |
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2049 Century Park East, 41st floor |
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Envelopeld Stamping: Enabled |
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Century City, CA 90067 |
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Time Zone: (UTC-08:00) Pacific Time (US & Canada) |
barbie.chang@urw.com |
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IP Address: 172.248.182.66 |
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Status: Original |
Holder: Barbie Chang |
Location: DocuSign |
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2/8/2021 10:05:30 AM |
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barbie.chang@urw.com |
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Andrea Kahn |
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Sent: 2/8/2021 10:10:02 AM |
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andrea.kahn@urw.com |
/s/ Andrea Kahn |
Resent: 2/8/2021 10:16:00 AM |
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Assistant Secretary |
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Viewed: 2/8/2021 10:16:22 AM |
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Assistant Secretary |
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Signed: 2/8/2021 10:16:41 AM |
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Security Level: Email, Account Authentication |
Signature Adoption: Pre-selected Style |
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Using IP Address: 76.91.6.88 |
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Dan Hough |
/s/ Dan Hough |
Sent: 2/8/2021 10:18:23 AM |
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dan.hough@urw.com |
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Viewed: 2/8/2021 10:18:54 AM |
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Security Level: Email, Account Authentication |
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Signed: 2/8/2021 10:19:19 AM |
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Signature Adoption: Pre-selected Style |
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Using IP Address: 68.225.245.89 |
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Jonathan Bauman |
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Assistant Secretary |
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John Kim |
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Accepted: 2/8/2021 11:01:16 AM |
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Electronic Record and Signature Disclosure created on: 7/31/2020 11:44:06 AM
Parties agreed to: Dan Hough, Jonathan Bauman, John Kim
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
Pursuant to the Electronic Signatures in Global and National Commerce Act (ESIGN) the Parties hereby expressly agree to the use of certificate-based electronic signature software operated by DocuSign for execution of this agreement/lease. The certificate based electronic signature generated by this software shall have the same legal effect as a handwritten signature and shall be admissible evidence of the Parties’ mutual intent to be legally bound by this agreement. The Parties declare that they have received all information required to be fully aware of the certificate-based electronic signature process, and each Party hereby waives any challenge against the enforceability of this agreement based on the use of such certificate-based electronic signature software.
CHAPTER 1, ARTICLE II
LIVING WAGE
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Section 10.37 Legislative Findings. 10.37.1 Definitions. 10.37.2 Payment of Minimum Compensation to Employees. 10.37.3 Health Benefits. 10.37.4 Employer Reporting and Notification Requirements. 10.37.5 Retaliation Prohibited. 10.37.6 Enforcement. 10.37.7 Administration. 10.37.8 City is a Third Party Beneficiary of Contracts Between an Employer and Subcontractor for Purposes of Enforcement. 10.37.9 Coexistence with Other Available Relief for Specific Deprivations of Protected Rights. 10.37.10 Expenditures Covered. 10.37.11 Timing of Application. 10.37.12 Express Supersession by Collective Bargaining Agreement. 10.37.13 Liberal Interpretation of Coverage; Rebuttable Presumption of Coverage. 10.37.14 Contracts, Employers and Employees Not Subject to this Article. 10.37.15 Exemptions. 10.37.16 Severability. Sec. 10.37. Legislative Findings. The City awards many contracts to private firms to provide services to the public and to City government. Many lessees or licensees of City property perform services that affect the proprietary interests of City government in that their performance impacts the success of City operations. The City also provides financial assistance and funding to other firms for the purpose of economic development or job growth. The City expends grant funds under programs created by the federal and state governments. These expenditures serve to promote the goals established for the grant programs and for similar goals of the City. The City intends that the policies underlying this article serve to guide the expenditure of such funds to the extent allowed by the laws under which such grant programs are established. |
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Experience indicates that procurement by contract of services all too often has resulted in the payment by service contractors to their employees of wages at or slightly above the minimum required by federal and state minimum wage laws. The minimal compensation tends to inhibit the quantity and quality of services rendered by those employees to the City and to the public. Underpaying employees in this way fosters high turnover, absenteeism and lackluster performance. Conversely, adequate compensation promotes amelioration of these undesirable conditions. Through this article, the City intends to require service contractors to provide a minimum level of compensation which will improve the level of services rendered to and for the City. The inadequate compensation leaves service employees with insufficient resources to afford life in Los Angeles. Contracting decisions involving the expenditure of City funds should not foster conditions that place a burden on limited social services. The City, as a principal provider of social support services, has an interest in promoting an employment environment that protects such limited resources. In requiring the payment of a higher minimum level of compensation, this article benefits that interest. In comparison with the wages paid at San Francisco International Airport, the wage for Los Angeles airport workers is often lower even though the airports are similar in the number of passengers they serve and have similar goals of providing a living wage to the airport workforce. Studies show that higher wages at the airport leads to increases in worker productivity and improves customer service. Higher wages for airport workers also results in a decline in worker turnover, yielding savings to the employers and alleviating potential security concerns. Therefore, the City finds that a higher wage for airport employees is needed to reduce turnover and retain a qualified and stable workforce. Many airport workers who provide catering services to the airlines are paid below the living wage. Federal law allows employment contract agreements between airline caterers and its workers to remain in effect without an expiration date, effectively freezing wages for workers. Long-term employment contract agreements provide little incentive for employers to renegotiate the employment contract agreements with their workers. Airline catering workers often struggle to pay their bills, sometimes having to choose between paying medical bills and buying food for their families. The City finds that airline caterers should pay their workers, at a minimum, the living wage with benefits. |
EXHIBIT K-1
§ 10.37 |
CONTRACTS |
Division 10 |
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Airport workers are also the first to respond when an emergency occurs at the airport. In order to properly assist first responders during a crisis at the airport, the City finds that airport employees of Certified Service Provider License Agreement holders should be formally trained for an emergency response at the airport. Nothing less than the living wage should be paid by employers that are the recipients of City financial assistance. Whether workers are engaged in manufacturing or some other line of business, the City does not wish to foster an economic climate where a lesser wage is all that is offered to the working poor. The City holds a proprietary interest in the work performed by many employees of City lessees and licensees and by their service contractors, subcontractors, sublessees and sublicensees. The success or failure of City operations may turn on the success or failure of these enterprises, for the City has a genuine stake in how the public perceives the services rendered for them by such businesses. Inadequate compensation of these employees adversely impacts the performance by the City’s lessee or licensee and thereby hinders the opportunity for success of City operations. A proprietary interest in providing a living wage is important for various reasons, including, but not limited to: 1) the public perception of the services or products rendered to them by a business; 2) security concerns related to the location of the business or any product or service the business produces; or 3) an employer’s industry-specific job classification which is in the City’s interest to cover by the living wage. This article is meant to cover all such employees not expressly exempted. Requiring payment of the living wage further serves a proprietary concern of the City. If an employer does not comply with this article, the City may: 1) declare a material breach of the contract; 2) declare the employer non-responsible and limit its ability to bid on future City contracts, leases or licenses; and 3) exercise any other remedies available. SECTION HISTORY Article and Section Added by Ord. No. 171.547, Eff. 5-5-97. Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; In Entirety, Ord. No. 184.318. Eff. 7-7-16; In Entirety. Ord. No. 185,321. Eff. 1-20-18. |
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Sec. 10.37.1. Definitions. The following definitions shall apply throughout this article: (a) “Airline Food Caterer” means any Employer that, with respect to the Airport: (1)prepares food or beverage to or for aircraft crew or passengers; (2)delivers prepared food or beverage to or for aircraft crew or passengers; (3)conducts security or inspection of aircraft food or beverage; or (4)provides any other service related to or in connection with the preparation of food or beverage to or for aircraft crew or passengers. (b) “Airport” means the Department of Airports and each of the airports which it operates. (c) “Awarding Authority” means the governing body, board, officer or employee of the City or City Financial Assistance Recipient authorized to award a Contract and shall include a department which has control of its own funds. (d) “City” means the City of Los Angeles and all awarding authorities thereof, including those City departments which exercise independent control over their expenditure of funds. (e) “City Financial Assistance Recipient” means any person who receives from the City discrete financial assistance for economic development or job growth expressly articulated and identified by the City, as contrasted with generalized financial assistance such as through tax legislation, in accordance with the following monetary limitations. Assistance given in the amount of $1,000,000 or more in any 12-month period shall require compliance with this article for five years from the date such assistance reaches the $1,000,000 threshold. For assistance in any 12-month period totaling less than $1,000,000 but at least $100,000, there shall be compliance for one year, with the period of compliance beginning when the accrual of continuing assistance reaches the 3100,000 threshold. |
EXHIBIT K-1
Chapter 1. Article II |
Contracts - General |
§ 10.37.1 |
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Categories of assistance include, but are not limited to, bond financing, planning assistance, tax increment financing exclusively by the City and tax credits, and shall not include assistance provided by the Community Development Bank. City staff assistance shall not be regarded as financial assistance for purposes of this article. A loan at market rate shall not be regarded as financial assistance. The forgiveness of a loan shall be regarded as financial assistance. A loan shall be regarded as financial assistance to the extent of any differential between the amount of the loan and the present value of the payments thereunder, discounted over the life of the loan by the applicable federal rate as used in 26 U.S.C. §§ 1274(d) and 7872(f). A recipient shall not be deemed to include lessees and sublessees. A recipient shall be exempted from application of this article if: (1)it is in its first year of existence, in which case the exemption shall last for one year; (2)it employs fewer than five Employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year; or (3)it obtains a waiver as a recipient who employs the long-term unemployed or provides trainee positions intended to prepare Employees for permanent positions. The recipient shall attest that compliance with this article would cause an economic hardship and shall apply in writing to the City department or office administering the assistance. The department or office shall forward the waiver application and the department or office’s recommended action to the City Council. Waivers shall be effected by Council resolution. (f) “Contractor” means any person that enters into: (1)a Service Contract with the City; (2)a contract with a Public Lessee or Licensee; or (3)a contract with a City Financial Assistance Recipient to help the recipient in performing the work for which the assistance is being given. |
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(g) “Designated Administrative Agency (DAA)” means the Department of Public Works, Bureau of Contract Administration, which shall bear administrative responsibilities under this article. (h) “Employee” means any person who is not a managerial, supervisory or confidential employee who expends any of his or her time working for an Employer in the United States. (i) “Employer” means any person who is: (1)a City Financial Assistance Recipient; (2)Contractor; (3)Subcontractor; (4)Public Lessee or Licensee; and (5)Contractor, Subcontractor, sublessee or sublicensee of a Public Lessee or Licensee. (j) “Person” means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association or other entity that may employ individuals or enter into contracts. (k) “Public Lease or License” means, except as provided in Section 10.37.15, a lease, license, sublease or sublicense of City property, including, but not limited to, Non-Exclusive License Agreements, Air Carrier Operating Permits and Certified Service Provider License Agreements (CSPLA), for which services are furnished by Employees where any of the following apply: (1)The services are rendered on premises at least a portion of which is visited by members of the public (including, but not limited to, airport passenger terminals, parking lots, golf courses, recreational facilities); (2)Any of the services feasibly could be performed by City employees if the City had the requisite financial and staffing resources; or (3)The DAA has determined in writing as approved by the Board of Public Works that coverage would further the proprietary interests of the City. Proprietary interest includes, but is not limited to: |
EXHIBIT K-1
§ 10.37.1 |
CONTRACTS |
Division 10 |
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(i)the public perception of the services or products rendered to them by a business; (ii)security concerns related to the location of the business or any product or service the business produces; or (iii)an Employer’s industry-specific job classifications as defined in the regulations. (l) “Service Contract” means a contract involving an expenditure in excess of $25,000 and a contract term of at least three months awarded to a Contractor by the City to furnish services for the City where any of the following apply: (1)at least some of the services are rendered by Employees whose work site is on property owned or controlled by the City; (2)the services feasibly could be performed by City employees if the City had the requisite financial and staffing resources; or (3)the DAA has determined in writing as approved by the Board of Public Works that coverage would further the proprietary interests of the City. Proprietary interest includes, but is not limited to: (i)the public perception of the services or products rendered to them by a business; (ii)security concerns related to the location of the business or any product or service the business produces; or (iii)an Employer’s industry-specific job classifications as defined in the regulations. (m) “Subcontractor” means any person not an Employee who enters into a contract: (1)to assist in performance of a Service Contract; (2)with a Public Lessee or Licensee, sublessee, sublicensee or Contractor to perform or assist in performing services for the leased or licensed premises. |
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(n) “Willful Violation” means that the Employer knew of its obligations under this article and deliberately failed or refused to comply with its provisions. SECTION HISTORY Added by Ord. No. 171.547, Eff. 5-5-97. Amended. By: In Entirety. Ord. No 172.336, Eff. 1-14-99; Subsec. (e), Ord. No. 176,155, Eff. 9-22-04: Subsec. (e), Ord. No. 176.253, EFT 12- 25-04, Oper. 9-22-04: Subsecs. (a) through (l) re- lettered (d) through (o), respectively and now Subsecs (a), (b), and (c) added, Ord. No. 180,877, Eff. 10- 19-09; In Entirely, Ord. No. 184.318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-IS. Sec. 10.37.2. Payment of Minimum Compensation to Employees. (a) Wages. An Employer shall pay an Employee for all hours worked on a Service Contract or if a Public Lease ur License or for a Contractor of a Public Lessee or Licensee, for all hours worked furnishing a service relating to the City, a wage of no less than the hourly rates set under the authority of this article. (1) Non-Airport Employee Wages. (i) If an Employer provides an Employee with health benefits as provided in Section 10.37,3 of this article, the Employee shall be paid the following: a. On July 1, 2018, the wage rate for an Employee shall be no less than $13.25 per hour. b. On July 1, 2019, the wage rate for an Employee shall be $14.25 per hour. c. On July 1, 2020, the wage rate for an Employee shall be no less than $15.00 per hour. d. On July 1, 2022, and annually thereafter, the hourly wage rate paid to an Employee shall be adjusted consistent with any adjustment pursuant to Section 187.02 D. of the Los Angeles Municipal Code. (ii) If an Employer does not provide an Employee with health benefits as provided in Section 10.37.3 of this article, the Employee shall be paid the applicable wage rate in Section |
EXHIBIT K-1
Chapter 1, Article II |
Contracts - General |
§ 10.37.2. |
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10.37.2(a)(1)(i) and an additional wage rate of $1.25 per hour. (iii) Section 10.37.II is not applicable to this subdivision. (2) Airport Employee Wages. (i)If an Employer servicing the Airport provides an Employee with health benefits as provided in Section 10.37.3 of this article, the Employee shall be paid the following: a.On July 1, 2017, the wage rate for an Employee shall be no less than $12.08 per hour. b.On July 1, 2018, the wage rate for an Employee shall be no less than $13.75 per hour. c.On July 1, 2019, the wage rate for an Employee shall be no less than $15.25 per hour. d.On July 1, 2020, the wage rate for an Employee shall be no less than $16.50 per hour, e.On July 1, 2021, the wage rate for an Employee shall be no less than $17.00 per hour. f.Beginning on July 1, 2022, the wage rate for an Employee shall increase annually, on July 1, to an amount $2.00 above the minimum rate under the City’s Minimum Wage Ordinance for that same period of time. (ii) If an Employer servicing the Airport does not provide an Employee with health benefits as provided in Section 10.37.3 of this article, the Employee shall be paid the applicable wage rate in Section 10.37.2(a)(2)(i) and an additional wage rate as follows: a.On July 1, 2017, an Employer servicing the Airport shall pay an Employee an additional wage rate of $5.18 per hour. b.Beginning on July 1, 2018, an Employer servicing the Airport shall pay an Employee an additional wage rate per hour equal to the health benefit payment in effect for an Employee pursuant to Section 10.37.3(a)(5). |
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(3) An Employer may not use tips or gratuities earned by an Employee to offset the wages required under this article. (b) Compensated Time Off. An Employer shall provide an Employee compensated time off as follows: (1) An Employee who works at least 40 hours per week or is classified as a full-time Employee by the Employer shall accrue no less than 96 hours of compensated time off per year. (2) An Employee who works less than 40 hours per week and is not classified as a full-time Employee by the Employer shall accrue hours of compensated time off in increments proportional to that accrued by an Employee who works 40 hours per week. (3) General Rules for Compensated Time Off. (i) An Employee must be eligible to use accrued paid compensated time off after the first 90 days of employment or consistent with company policies, whichever is sooner. Compensated time off shall be paid at an Employee’s regular wage rate at the time the compensated time off is used. (ii) An Employee may use accrued compensated time off hours for sick leave, vacation or personal necessity. (iii) An Employer may not unreasonably deny an Employee’s request to use the accrued compensated time off. The DAA, through regulations. may provide guidance on what is considered unreasonable. (iv) The DAA may allow an Employer’s established compensated time off policy to remain in place even though it does not meet these requirements, if the DAA determines that the Employer’s established policy is overall more generous. (v) Unused accrued compensated time off shall carry over until time off reaches a maximum of 192 hours, unless the Employer’s established policy is overall more generous. |
EXHIBIT K-1
§ 10.37.2 |
CONTRACTS |
Division 10 |
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(vi)After an Employee reaches the maximum accrued compensated time off, an Employer shall provide a cash payment once every 30 days for accrued compensated time off over the maximum. An Employer may provide an Employee with the option of cashing out any portion of, or all of, the Employee’s accrued compensated time off, but, an Employer shall not require an Employee to cash out any accrued compensated time off. Compensated time off cashed out shall be paid to the Employee at the wage rate that the Employee is earning at the time of cash out. (vii)An Employer may not implement any unreasonable employment policy to count accrued compensated time off taken under this article as an absence that may result in discipline, discharge, suspension or any other adverse action. (4) Compensated Release Time. An Employer servicing the Airport who holds a Certified Service Provider License Agreement and is subject to this article shall comply with the following additional requirements: (i)A CSPLA Employer shall provide an Employee at the Airport, 16 hours of additional compensated release time annually to attend and complete emergency response training courses approved by the Airport. (ii)By December 31, 2018, and continuing thereafter on an annual basis, an Employee of a CSPLA Employer shall successfully complete the 16 hours of emergency response training. (iii)An Employee of a CSPLA Employer hired after December 31, 2018, shall complete the 16 hours of emergency response training within 120 days of the first date of hire. (iv)The 16 hours of compensated release time shall only be used to attend Airport approved annual emergency response training courses. The 16 hours of compensated release time does not accumulate or carry over to the following year. The 16 hours of compensated release time shall not be included as part of the 96 hours of compensated time off required under this article. |
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(c) Uncompensated Time Off. An Employer shall provide an Employee uncompensated time off as follows: (1) An Employee who works at least 40 hours a week or is classified as a full-time Employee by an Employer shall accrue no less than 80 hours of uncompensated time off per year. (2) An Employee who works less than 40 hours (3) General Rules for Uncompensated Time Off. (i) An Employee must be eligible to use accrued uncompensated time off after the first 90 days of employment or consistent with company policies, whichever is sooner. (ii) Uncompensated time off may only be used for sick leave for the illness of an Employee or a member of his or her immediate family and where an Employee has exhausted his or her compensated time off for that year. (iii) An Employer may not unreasonably deny an Employee’s request to use the accrued uncompensated time off. The DAA, through regulations, may provide guidance on what is considered unreasonable. (iv) Unused accrued uncompensated time off shall carry over until the time off reaches a maximum of 80 hours, unless the Employer’s established policy is overall more generous. (v) An Employer may not implement any unreasonable employment policy to count accrued uncompensated time off taken under this article as an absence that may result in discipline, discharge, suspension or any other adverse action. SECTION HISTORY Added by Ord. No. 171,547, Eff. 5-5-97. Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; Subsec. (a), Ord. No. 173,285, Eff. 6-26-00, Oper. 7-1-00; Subsec. (a), Ord. No. 180,877, Eff. 10-19-09; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18; Subsec. (a)(1), Ord. No. 185,745, Eff. 10-15-18. |
EXHIBIT K-1
Chapter 1, Article I I |
Contracts — General |
§ 10.37.5 |
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Sec. 10.37.3. Health Benefits. (a)Health Benefits. The health benefits required by this article shall consist of the payment by an Employer of at least $1.25 per hour to Employees towards the provision of health care benefits for an Employee and his or her dependents. On July 1, 2017, the health benefit rate for an Employee working for an Employer servicing the Airport shall be at least 55.18 per hour. On July 1, 2018, the annual increase for Employees working for an Employer servicing the Airport shall continue as provided in Section 10.37.3(a)(5). (1)Proof of the provision of such benefits must be submitted to the Awarding Authority to qualify for the wage rate in Section 10.37.2(a) for Employees with health benefits. (2)Health benefits include health coverage, dental, vision, mental health and disability income. For purposes of this article, retirement benefits, accidental death and dismemberment insurance, life insurance and other benefits that do not provide medical or health related coverage will not be credited toward the cost of providing Employees with health benefits. (3)If the Employer’s hourly health benefit payment is less than that required under this article, the difference shall be paid to the Employee’s hourly wage. (4)Health benefits are not required to be paid on overtime hours. (5)On July 1, 2018, and annually thereafter each July 1, the amount of payment for health benefits provided to an Employee working for an Employer servicing the Airport shall be adjusted by a percentage equal to the percentage increase, if any, in the United States Bureau of Labor Statistics Consumer Price Index for All Urban Consumers: Medical Care Services, as measured from January to December of the preceding year. The DAA shall announce the adjusted rates on February 1st and publish a bulletin announcing the adjusted rates, which shall take effect on July 1st of each year. (b)Periodic Review. At least once every three years, the City Administrative Officer shall review the health benefit payment by Employers servicing the Airport set forth in Section 10.37.3(a) to determine whether the payment accurately reflects the cost of health care and to assess the impacts of the health benefit payment on Airport Employers and Airport Employees and shall transmit a report with its findings to the Council. |
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SECTION HISTORY Added by Ord. No. 171,547, Eff. 5-5-97. Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; In Entirety, Ord. No. 180,877, Eff. 10-19-09; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18. Sec. 10.37.4. Employer Reporting and Notification Requirements. (a)An Employer shall post in a prominent place in an area frequented by Employees a copy of the Living Wage Poster and the Notice Regarding Retaliation, both available from the DAA. (b)An Employer shall inform an Employee of his or her possible right to the federal Earned Income Credit (EIC) under Section 32 of the Internal Revenue Code of 1954, 26 U.S.C. § 32, and shall make available to an Employee forms informing them about the EIC and forms required to secure advance EIC payments from the Employer. (c)An Employer is required to retain payroll records pertaining to its Employees for a period of at least four years, unless more than four years of retention is specified elsewhere in the contract or required by law. (d)A Contractor, Public Lessee, Licensee, and City Financial Assistant Recipient is responsible for notifying all Contractors, Subcontractors, sublessees, and sublicensees of their obligation under this article and requiring compliance with this article. Failure to comply shall be a material breach of the contract. SECTION HISTORY Added by Ord. No. 171,547, Eff. 5-5-97. Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18. Sec. 10.37.5. Retaliation Prohibited. An Employer shall not discharge, reduce in compensation, or otherwise discriminate against any Employee for complaining to the City with regard to the Employer’s compliance or anticipated compliance with this article, for opposing any practice proscribed by this article, for participating in proceedings related to this article, for seeking to enforce his or her rights under this article by any lawful means, or for otherwise asserting rights under this article. |
EXHIBIT K-1
§ 10.37.5 |
CONTRACTS |
Division 10 |
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SECTION HISTORY Added by Ord. No. 171,547, Eff. 5-5-97. Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18. Sec. 10.37.6. Enforcement. (a) An Employee claiming violation of this article may bring an action in the Superior Court of the State of California against an Employer and may be awarded: (1)For failure to pay wages required by this article, back pay shall be paid for each day during which the violation occurred. (2)For failure to comply with health benefits requirements pursuant to this article, the Employee shall be paid the differential between the wage required by this article without health benefits and such wage with health benefits, less amounts paid, if any, toward health benefits. (3)For retaliation the Employee shall receive reinstatement, back pay or other equitable relief the court may deem appropriate. (4)For Willful Violations, the amount of monies to be paid under Subdivisions (1) - (3), above, shall be trebled. (b) The court shall award reasonable attorney’s fees and costs to an Employee who prevails in any such enforcement action and to an Employer who prevails and obtains a court determination that the Employee’s lawsuit was frivolous. (c) Compliance with this article shall be required in all City contracts to which it applies. Contracts shall provide that violation of this article shall constitute a material breach thereof and entitle the Awarding Authority to terminate the contract and otherwise pursue legal remedies that may be available. Contracts shall also include an agreement that the Employer shall comply with federal law proscribing retaliation for union organizing. (d) The DAA may audit an Employer at any time to verify compliance. Failure by the Employer to cooperate with the DAA’s administrative and enforcement actions, including, but not limited to, requests for information or documentation to verify compliance with this article, may result in a determination by the DAA that the Employer has violated this article. |
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(e) An Employee claiming violation of this article may report the claimed violation to the DAA, which shall determine whether this article applies to the claimed violation. (1)If any of the Employee’s allegations merit further review, the DAA shall perform an audit; the scope of which will not exceed four years from the date the complaint was received. (2)If the claimed violation is filed after a contract has expired, and information needed for the review is no longer readily available, the DAA may determine this article no longer applies. (3)In the event of a claimed violation of the requirements relating to compensated time off, uncompensated time off or wages, the DAA may require the Employer to calculate the amount the Employee should have earned and compensate the Employee. Nothing shall limit the DAA’s authority to evaluate the calculation. (i)If the DAA determines that an Employer is in violation of Section 10.37.2(b), the time owed must be made available immediately. At the Employer’s option, retroactive compensated time off in excess of 192 hours may be paid to the Employee at the current hourly wage rate. (ii)If the DAA determines that an Employer is in violation of Section 10.37.2(c), the Employer shall calculate the amount of uncompensated time off that the Employee should have accrued. This time will be added to the uncompensated time off currently available to the Employee and must be available immediately. (f) Where the DAA has determined that an Employer has violated this article, the DAA shall issue a written notice to the Employer that the violation is to be corrected within ten days or other time period determined appropriate by the DAA. (g) In the event the Employer has not demonstrated to the DAA within such period that it has cured the violation, the DAA may then: |
EXHIBIT K-1
Chapter 1, Article II |
Contracts - General |
§ 10.37.8 |
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(1)Request the Awarding Authority to declare a material breach of the Service Contract, Public Lease or License, or financial assistance agreement and exercise its contractual remedies thereunder, which may include, but not be limited to: (i) termination of the Service Contract, Public Lease or License, or financial assistance agreement; (ii) the return of monies paid by the City for services not yet rendered; and (iii) the return to the City of money held in retention (or other money payable on account of work performed by the Employer) when the DAA has documented the Employer’s liability for unpaid wages, health benefits or compensated time off. (2)Request the Awarding Authority to declare the Employer non-responsible from future City contracts, leases and licenses in accordance with the Contractor Responsibility Ordinance (LAAC Section 10.40, et seq.) and institute proceedings in a manner that is consistent with law. (3)Impose a fine payable to the City in the amount of up to $100 for each violation for each day the violation remains uncured. (4)Exercise any other remedies available at law or in equity. (h) Notwithstanding any provision of this Code or any other law to the contrary, no criminal penalties shall attach for violation of this article. SECTION HISTORY Added by Ord. No. 171,547, Eff. 5-5-97. Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; Subsec. (d), Para. (1). Ord. No. 173,747, Eff. 2-24-01; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18. Sec. 10.37.7. Administration. The DAA shall administer the requirement of this article and monitor compliance, including the investigation of claimed violations. The DAA shall promulgate rules and regulations consistent with this article for the implementation of the provision of this article. The DAA shall also issue determinations that persons are City Financial Assistance Recipients, that particular contracts shall be regarded as “Service Contracts” for purposes of Section 10.37.1(1), and that particular leases and licenses shall be regarded as “Public Leases” or “Public Licenses” for purposes of Section 10.37.1(k). when it receives an application for a determination of non-coverage or exemption as provided for in Section 10.37.14 and 10.37.15. |
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The DAA may require an Awarding Authority to inform the DAA about all contracts in the manner described by regulation. The DAA shall also establish Employer reporting requirements on Employee compensation and on notification about and usage of the federal Earned Income Credit referred to in Section 10.37.4. The DAA shall report on compliance to the City Council no less frequently than annually. Every three years after July 1, 2018, the Chief Legislative Analyst (CLA) with the assistance of the City Administrative Officer (CAO) shall commission a study to review the state of the Airport’s regional economy; minimum wage impacts for Employees servicing the Airport; Airport service industry impacts; temporary workers, guards and janitors impacts; restaurants, hotels and bars impacts; transitional jobs programs impacts; service charges, commissions and guaranteed gratuities impacts; and wage theft enforcement. On an annual basis, the CLA and CAO shall collect economic data, including jobs, earnings and sales tax. The Study shall also address how extensively affected Employers are complying with this article, how the article is affecting the workforce composition of affected Employers, and how the additional costs of the article have been distributed among Employees, Employers and the City. SECTION HISTORY Added by Ord. No. 171,547, Eff. 5-5-97. Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; Ord. No. 173,285, Eff. 6-26-00, Oper. 7-1-00; Ord. No. 173,747, Eff. 2-24-01: In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18. Sec. 10.37.8. City is a Third Party Beneficiary of Contracts Between an Employer and Subcontractor for Purposes of Enforcement. Any contract an Employer executes with a Contractor or Subcontractor, as defined in Section 10.37.1(f) and (m), shall contain a provision wherein the Contractor or Subcontractor agree to comply with this article and designate the City as an intended third parry beneficiary for purposes of enforcement directly against the Contractor or Subcontractor, as provided for in Section 10.37.6 of this article. |
EXHIBIT K-1
§ 10.37.8 |
CONTRACTS |
Division 10 |
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SECTION HISTORY Added by Ord. No. 171,547, Eff, 5-5-97. Amended by: In Entirety, Ord. No. 172.336. Eff. 1-14-99; Ord. No. 173,285, Eff. 6-26-00. Oper. 7-1-00; In Entirety, Ord. No. 184,316, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18. Sec. 10.37.9. Coexistence with Other Available Relief for Specific Deprivations of Protected Rights. This article shall not be construed to limit an Employee’s right to bring legal action for violation of other minimum compensation laws. SECTION HISTORY Added by Ord. No. 171,547. Eff. 5-5-97. Amended by: In Entirerf, Ord. No. 172,336. Eff. 1-14-99; In Entirely, Ord. No. 184,318, Eff, 7.7-16; In Entirely, Ord. Nu. 185,321, Eff. Sec. 10.37.10. Expenditures Covered. This article shall apply to the expenditure - whether through aid to City Financial Assistance Recipients, Service Contracts let by the City or Service Contracts let by its Financial Assistance Recipients - of funds entirely within the City’s control and to other funds, such as federal or state grant funds, where the application of this article is consonant with the laws authorizing the City to expend such other funds. SECTION HISTORY Added by Ord. No. 171,547, Eff. 5-5-97. Amended by: In Entirety. Ord. No. 172,336. Eff. 1-14-99; in Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18. Sec. 10.37.11. Timing of Application. The provisions of this article shall become operative 60 days following the effective date of the ordinance and are not retroactive. SECTION HISTORY Added by Ord. No. 171,547, Eff. 5-5-97. Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; Subsec. (b), Subsec. (c) Added, Ord. No. 173,747. Eff. 2-24-01; Subsec. (d) Added, Ord. No. 180,877. Eff. 10-19-09: In Entirety, Ord. No. 184,318. Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18. |
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Sec. 10.37.12. Express Supersession by Collective Bargaining Agreement. The requirements of this article may be superseded by a collective bargaining agreement if expressly stated in the agreement. This provision applies to any collective bargaining agreement that expires or is open for negotiation of compensation terms after the effective date of this ordinance. Any collective bargaining agreement that purports to supersede any requirement of this article shall be submitted by the Employer to the DAA. (a)A collective bargaining agreement may expressly supersede the requirements of this article with respect to Employees of Employers servicing the Airport only when an Employee is paid a wage not less than the applicable wage rate in Section 10.37.2(a)(2)(i). (b)A collective bargaining agreement may expressly supersede the requirements of this article with respect to Employees of Airline Food Caterers only when an Employee of the Airline Food Caterer is paid a total economic package no less than the applicable wage rate in Section 10.37.2(a)(2)(ii). SECTION HISTORY Added by Ord. No. 171,547, Eff. 5-5-97. Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; In Entirety, Ord. No. 184,318, Eff. 7-7-16; Title and Section In Entirety, Ord. No. 185,321, Eff. 1-20-18. Sec. 10.37.13. Liberal Interpretation of Coverage; Rebuttable Presumption of Coverage. The definitions of “City Financial Assistance Recipient” in Section 10.37.1(e), of “Public Lease or License” in Section 10.37.1(k), and of “Service Contract” in Section 10.37.1(1) shall be liberally interpreted so as to further the policy objectives of this article. All City Financial Assistance Recipients meeting the monetary thresholds of Section 10.37.1(e), all Public Leases and Licenses (including subleases and sublicenses) where. the City is the lessor or licensor, and all City contracts providing for services shall be presumed to meet the corresponding definition mentioned above, subject, however, to a determination by the DAA of non-coverage or exemption on any basis allowed by this article, including, but not limited to, non-coverage for failure to satisfy such definition. The DAA shall by regulation establish procedures for informing persons engaging in such transactions with the City of their opportunity to apply for a determination of non-coverage or exemption and procedures for making determinations on such applications. |
EXHIBIT K-1
Chapter 1, Article II |
Contracts - General |
§ 10.37.15 |
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SECTION HISTORY Added by Ord. No. 172,336, Eff, 1-14-99. Amended by: Ord. No. 173,747, Eff. 2-24-01; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Oid. No. 185,321, Eff. 1-20-18; In Entirety, Ord. No. 185.745. Eff. 10-15-18. Sec. 10.37.14. Contracts, Employers and Employees Not Subject to this Article. The following contracts are not subject to the Living Wage Ordinance. An Awarding Authority, after consulting with the DAA, may determine whether contracts and/or Employers are not subject to the Living Wage Ordinance due to the following: (a)a contract where an employee is covered under the prevailing wage requirements of Division 2, Part 7, of the California Labor Code unless the total of the basic hourly rate and hourly health and welfare payments specified in the Director of Industrial Relations’ General Prevailing Wage Determinations are less than the minimum hourly rate as required by Section 10.37.2(a) of this article. (b)a contract with a governmental entity, including a public educational institution or a public hospital. (c)a contract for work done directly by a utility company pursuant to an order of the Public Utilities Commission. SECTION HISTORY Added by Ord. No. 184,318, Eff. 7-7-16. Amended by: In Entirely, Ord. No. 185,321. Eff. 1-20-18. Sec. 10.37.15. Exemptions. Upon the request of an Employer, the DAA may exempt compliance with this article. An Employer seeking an exemption must submit the required documentation to the DAA for approval before the exemption takes effect. (a) A Public Lessee or Licensee, that employs no more than seven people total on and off City property shall be exempted. A lessee or licensee shall be deemed to employ no more than seven people if the company’s entire workforce worked an average of no more than 1,214 hours per month for at least three-fourths of the previous calendar year. If a Public Lease or License has a term of more than two years, the exemption granted pursuant to this section shall expire after two years, but shall be renewable in two-year increments. |
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(b) Non-Profit Organizations. Corporations organized under Section 501(c)(3) of the United States Internal Revenue Code of 1954, 26 U.S.C. § 501(c)(3), whose chief executive officer earns a salary which, when calculated on an hourly basis, is less than eight times the lowest wage paid by the corporation, shall be exempted as to all Employees other than child care workers. (c) Students. High school and college students employed in a work study or employment program lasting less than three months shall be exempt. Other students participating in a work-study program shall be exempt if the Employer can verify to the DAA that: (1)The program involves work/training for class or college credit and student participation in the work-study program is for a limited duration, with definite start and end dates; or (2)The student mutually agrees with the Employer to accept a wage below this article’s requirements based on a training component desired by the student. (d)Nothing in this article shall limit the right of the Council to waive the provisions herein. (e)Nothing in this article shall limit the right of the DAA to waive the provisions herein with respect to and at the request of an individual Employee who is eligible for benefits under Medicare, a health plan through the U.S. Department of Veteran Affairs or a health plan in which the Employee’s spouse, domestic partner or parent is a participant or subscriber to another health plan. An Employee who receives this waiver shall only be entitled to the hourly wage pursuant to Section 10.37.2(a)(2)(i). SECTION HISTORY Added by Ord. No. 184,318, Eff. 7-7-16. Amended by: In Entirety, Ord. No. 185,321, Eff. 1-20-18. |
EXHIBIT K-1
§ 10.37.16 |
CONTRACTS |
Division 10 |
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Sec. 10.37.16. Severability. If any subsection, sentence, clause or phrase of this article is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect. the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have adopted this section, and each and every subsection, sentence, clause and phrase thereof not declared invalid or unconstitutional, without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. SECTION HISTORY Added by Ord. No. 172,336, Eff, 1-14-99. Amended by: In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Oid. No. 185,321, Eff. 1-20-18; |
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EXHIBIT K-1
LOS ANGELES WORLD AIRPORTS
CONTRACTOR RESPONSIBILITY PROGRAM
PLEDGE OF COMPLIANCE
The Los Angeles World Airports (LAWA) Contractor Responsibility Program (Board Resolution #21601) provides that, unless specifically exempted, LAWA contractors working under contracts for services, for purchases, for construction, LAWA licensees with licenses, agreements or permits issued under the Certified Service Provider Program, and LAWA tenants with leases, that require the Board of Airport Commissioners’ approval shall comply with all applicable provisions of the LAWA Contractor Responsibility Program. Bidders and proposers are required to complete and submit this Pledge of Compliance with the bid or proposal or with an amendment of a contract subject to the CRP. In addition, within 10 days of execution of any subcontract, the contractor shall submit to LAWA this Pledge of Compliance from each subcontractor who has been listed as performing work on the contract.
The contractor agrees to comply with the Contractor Responsibility Program and the following provisions:
(a) |
To comply with all applicable Federal, state, and local laws in the performance of the contract, including but not limited to, laws regarding health and safety, labor and employment, wage and hours, and licensing laws which affect employees. |
(b) |
To notify LAWA within thirty (30) calendar days after receiving notification that any government agency has initiated an investigation that may result in a finding that the contractor is not in compliance with paragraph (a). |
(c) |
To notify LAWA within thirty (30) calendar days of all findings by a government agency or court of competent jurisdiction that the contractor has violated paragraph (a). |
(d) |
To provide LAWA within thirty (30) calendar days updated responses to the CRP Questionnaire if any change occurs which would change any response contained within the completed CRP Questionnaire. Note: This provision does not apply to amendments of contracts not subject to the CRP and to subcontractors not required to submit a CRP Questionnaire. |
(e) |
To ensure that subcontractors working on the LAWA contract shall complete and sign a Pledge of Compliance attesting under penalty of perjury to compliance with paragraphs (a) through (c) herein. To submit to LAWA the completed Pledges. |
(f) |
To notify LAWA within thirty (30) days of becoming aware of an investigation, violation or finding of any applicable federal, state, or local law involving the subcontractors in the performance of a LAWA contract. |
(g) |
To cooperate fully with LAWA during an investigation and to respond to request(s) for information within ten (10) working days from the date of the Notice to Respond. |
Failure to sign and submit this form to LAWA with the bid/proposal may make the bid/proposal non-responsive.
URW Airports, LLC, 2049 Century Park East, 41st Floor, Los Angeles, California 90067 | |
Company Name, Address and Phone Number | |
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February 8, 2021 |
Signature of Officer or Authorized Representative |
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Dan Hough, Vice President - Airport Development | |
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Print Name and Title of Officer or Authorized Representative Sixth Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement for the Tom Bradley International Terminal, Terminal 2, and the Midfield Satellite Concourse at Los Angeles International Airport | |
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Certificate Of Completion | ||||
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Envelope Id: 81DFCAD6DBC948E79AF4E94861F588C7 |
Status: Completed |
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Subject: Please DocuSign: LAA-8613 CRP PledgeRev Jan 13 2020.pdf | ||||
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Document Pages: 1 |
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Certificate Pages: 2 |
Initials: 0 |
Barbie Chang |
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AutoNav: Enabled |
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2049 Century Park East, 41st floor |
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Envelopeld Stamping: Enabled |
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Century City, CA 90067 |
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Time Zone: (UTC-08:00) Pacific Time (US & Canada) |
barbie.chang@urw.com |
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IP Address: 172.248.182.66 |
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Status: Original |
Holder: Barbie Chang |
Location: DocuSign |
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2/8/2021 10:38:29 AM |
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barbie.chang@urw.com |
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Dan Hough |
/s/ Dan Hough |
Sent: 2/8/2021 10:40:38 AM |
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dan.hough@urw.com |
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Resent: 2/8/2021 11:23:49 AM |
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Security Level: Email, Account Authentication |
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Viewed: 2/8/2021 11:30:36 AM |
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Signed: 2/8/2021 11:30:53 AM |
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Signature Adoption: Pre-selected Style |
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Using IP Address: 68.225.245.89 |
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Electronic Record and Signature Disclosure: |
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Accepted: 2/8/2021 11:30:36 AM |
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ID: ead89f41-00a9-4605-a61a-caa93ed74204 |
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Electronic Record and Signature Disclosure created on: 7/31/2020 11:44:06 AM
Parties agreed to: Dan Hough
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
Pursuant to the Electronic Signatures in Global and National Commerce Act (ESIGN) the Parties hereby expressly agree to the use of certificate-based electronic signature software operated by DocuSign for execution of this agreement/lease. The certificate based electronic signature generated by this software shall have the same legal effect as a handwritten signature and shall be admissible evidence of the Parties’ mutual intent to be legally bound by this agreement. The Parties declare that they have received all information required to be fully aware of the certificate-based electronic signature process, and each Party hereby waives any challenge against the enforceability of this agreement based on the use of such certificate-based electronic signature software.
ALTERNATIVE FUEL VEHICLE REQUIREMENT PROGRAM
(LAX ONLY)
| I. | Definitions. |
The following capitalized terms shall have the following meanings. All definitions include both the singular and plural form.
“Airport Contract” shall mean a contract awarded by LAWA and pertaining to LAX, and subcontracts of any level under such a contract.
“Airport Contractor” shall mean (i) any entity awarded an Airport Contract, and subcontractors of any level working under an Airport Contract; (ii) any contractors that have entered into a contract with an Airport Lessee to perform work on property owned by LAWA and pertaining to LAX, and any subcontractors working in furtherance of such a contract; and (iii) any contractor that have entered into a contract with an Airport Licensee to perform work pertaining to LAX, and any subcontractors working under such a contract.
“Airport Lessee” shall mean any entity that leases or subleases any property owned by LAWA and pertaining to LAX.
“Airport Licensee” shall mean any entity issued a license or permit by LAWA for operations that pertain to LAX.
“Alternative-Fuel Vehicle” shall mean a vehicle that is not powered by petroleum-derived gasoline or diesel fuel. Alternative-Fuel Vehicles include, but are not limited to, vehicles powered by compressed or liquefied natural gas, liquefied petroleum gas, methanol, ethanol, electricity, fuel cells, or other advanced technologies.
“CARB” shall mean the California Air Resources Board.
“Covered Vehicle” is defined in Section II below.
“Compliance Plan” is defined in subsection VII.C. below.
“EPA” shall mean the United States Environmental Protection Agency.
“Independent Third Party Monitor” shall mean a person or entity empowered by LAWA to monitor compliance with and/or implementation of particular requirements in this Requirement.
“LAWA” shall mean Los Angeles World Airports.
“LAX” shall mean Los Angeles International Airport.
“Least-Polluting Available Vehicle” shall mean a vehicle that (a) is determined by an Independent Third Party Monitor to be (i) commercially available, (ii) suitable for performance of a particular task, and (iii) certified by CARB to meet the applicable engines emission standard in effect at the time of purchase. Where more than one vehicle meets these requirements for a particular task, LAWA, working with the Independent Third Party Monitor, will designate as the Least-Polluting Available Vehicle the vehicle that emits the least amount of criteria air pollutants.
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EXHIBIT P-1
“LEV” shall mean a vehicle that meets CARB’s Low-Emission Vehicle standards for criteria pollutant exhaust and evaporative emissions for medium-duty vehicles at the time of vehicle manufacture.
“LEV II” shall mean a vehicle certified by CARB to the “LEV II” Regulation Amendments that were fully implemented as of 2010. A qualifying “LEV II” vehicle shall meet the least polluting standard in the LEV II category that is available at the time of purchase.
“LEV III” shall mean a vehicle certified by CARB to the increasingly stringent “LEV III” Regulatory Amendments to the California greenhouse gas and criteria pollutant exhaust and evaporative emission standards, test procedures, and on-board diagnostic system requirements for medium-duty vehicles.
“Low-Use Vehicle” shall mean a Covered Vehicle that makes less than five (5) trips per month to LAX.
“Operator” shall mean any Airport Contractor, Airport Lessee, or Airport Licensee.
“Optional Low NOx” shall mean any vehicle powered by an engine that meets CARB’s optional low oxides of nitrogen (NOx) emission standards for on-road heavy-duty engines applicable at the time of purchase.
II. |
Covered Vehicles. |
A. |
Covered Vehicles. These Requirements shall apply to all on-road vehicles, including trucks, shuttles, passenger vans, and buses that are 8,500 lbs gross vehicle weight rating or more and are used in operations related to LAX (“Covered Vehicles”). |
B. |
Exemptions. The following vehicles are exempt from this Requirement: |
i)Public safety vehicles.
ii)Previously approved vehicles. Vehicles previously approved under the 2007 LAX Alternative Fuel Vehicle Requirement Program are exempt from the Maximum Allowable Vehicle Age Requirement, Section III, but are subject to the Annual Reporting Requirement, Section VI.
iii)Low-Use Vehicles. Low-use vehicles are exempt from the Compliance Schedule, Section IV, the Maximum Allowable Vehicle Age Requirement, Section III, but are subject to the Annual Reporting Requirement, Section VI.
III. |
Maximum Allowable Vehicle Age Requirement. In accordance with the Compliance Schedule dates outlined in Section IV, no Covered Vehicle equipped with an engine older than thirteen (13) model years or that has 500,000 or more miles, whichever comes first, shall operate at LAX. |
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EXHIBIT P-1
IV. Compliance Schedule.
A. |
By April 30, 2019, one hundred percent (100%) of the Covered Vehicles operated by a Covered Vehicle Operator shall be (a) Alternative-Fuel Vehicles, (b) Optional Low NOx vehicles or (c) LEV II standard vehicles through 2019 or LEV III standard vehicles thereafter. |
B. |
A new Covered Vehicle Operator who plans to begin operations at LAX prior to April 30, 2019, must comply with the requirement set forth in Section III and subsection IV.A. prior to commencing operations at LAX. |
V. Least-Polluting Available Vehicles. In cases where an Operator cannot comply with the requirements established pursuant to Sections III and IV above because neither Alternative-Fuel Vehicles, Optional Low NOx standard vehicles, or LEV II standard vehicles through 2019 and LEV III standard vehicles thereafter, are commercially available for performance of particular tasks, LAWA will instead require Operators to use the Least-Polluting Available Vehicles for such tasks. An Independent Third Party Monitor will determine whether Alternative-Fuel Vehicles, Optional Low NOx standard vehicles, or LEV II standard vehicles through 2019 and LEV III standard vehicles thereafter are commercially available to perform particular tasks, and, in cases where neither Alternative-Fuel Vehicles, Optional Low NOx standard vehicles, nor LEV II standard vehicles through 2019 and LEV III standard vehicles thereafter are commercially available for performance of a particular task, will identify the Least-Polluting Available Vehicle for performance of that task.
VI. Annual Reporting Requirement.
A. |
By January 31st of each calendar year, Covered Vehicle Operators must submit to LAWA the vehicle information required on the reporting form accessible online at https://online.Iawa.org/altfuel/ for the prior calendar year. |
B. |
Low-Use Vehicles shall be included in the annual reporting. Where monthly trip data is used to establish low-use, the operator must provide proof such-as transponder data records or an attestation acceptable to LAWA. |
C. |
A Covered Vehicle Operator who plans to begin operations at LAX must comply with this reporting requirement prior to commencing operations, and thereafter comply with the annual reporting deadline of January 31st of each calendar year. |
VII. Enforcement.
A. |
Non-Compliance. The following circumstances shall constitute non-compliance for purposes of this Section VII: |
i)Failure to submit an annual report pursuant to Section VI above.
ii)Failure to use an Alternative Fuel Vehicle, an Optional Low NOx vehicle, a vehicle meeting LEV II standards prior.to December 31, 2019, or LEV III Standards thereafter, an approved Least-Polluting Available Vehicle, or a vehicle approved under LAWA’s former Alternative Fuel Vehicle Requirement, including approved comparable emissions vehicles.
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EXHIBIT P-1
iii)Failure to submit a Compliance Plan as defined in subsection VII.C. below within 30 days of notice of non-compliance from LAWA.
iv)Failure to adhere to an approved Compliance Plan as defined in subsection VII.C. below.
B. |
Notice of Non-Compliance. Covered Vehicle Operators found not to be in compliance with the Alternative Fuel Vehicle Requirement as set forth in subsection VII.A. above will be given a notice of non-compliance. Covered Vehicle Operators will have 30 days to correct the deficiencies documented in the notice of non-compliance by completing the annual report as defined in Section VI or submitting a Compliance Plan as defined in subsection VII.C. below, as applicable to the reason cited for non-compliance. |
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Compliance Plan. |
i)Operators shall transition to compliant vehicles as soon as practicable.
ii)Non-compliant Covered Vehicle Operators will be required to submit a Compliance Plan indicating the disposition (salvage, replace, remove from service, etc.) date for each non-compliant vehicle (“Compliance Plan”) within 30 days of receiving a notice of non-compliance for a vehicle in the Operator’s fleet. The Compliance Plan shall provide dates by which the non-compliant vehicle or vehicles in the Operator’s fleet will meet the requirements of the LAX Alternative Fuel Vehicle Requirement and a justification for the new date. The Compliance Plan shall be signed under attestation.
iii)LAWA’s Chief Executive Officer or his/her designee shall review the Operator’s Compliance Plan and justification to determine its acceptability and authorize approval or disapproval.
iv)Covered Vehicle Operators shall have 30 days to seek review of LAWA’s rejection of a Compliance Plan or any parts thereof by LAWA’s Chief Executive Officer or his/her designee.
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Default. Three or more instances of non-compliance with the LAX Alternative Fuel Vehicle Requirement as defined in subsection VII.A above within two years shall be considered a default of the applicable LAX permit, license, contract, lease, Non-Exclusive License Agreement (NELA), concessionaire agreement, and/or Certified Service Provider (CSP) Program. LAWA’s Chief Executive Officer or his/her designee may, pursuant to the applicable terms provided therein, suspend or cancel a permit, license, contract, lease, NELA, concessionaire agreement or certified provider certification of non-compliant Covered Vehicle Operators who are not in compliance with this Alternative Fuel Vehicle Requirement. In addition, LAWA’s Chief Executive Officer or his/her designee may seek to recoup LAWA’s administrative costs from non-compliant operators. |
IX. |
Periodic Review. This Requirement will be reviewed and updated periodically as deemed necessary by LAWA. |
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EXHIBIT P-1
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.19.7
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Los Angeles World Airports |
BOARD FILE |
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NO. LAA-86136 |
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RESOLUTION NO. 27363 |
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LAX Van Nuys City of Los Angeles Eric Garcetti Mayor Board of Airport Commissioners Beatrice C. Hsu President Valeria C. Velasco Sean O. Burton Justin Erbacci |
WHEREAS, on recommendation of Management, there was presented for approval, Amendment to Concession Agreements at Los Angeles International Airport that are listed in Attachment 1 attached hereto and made part hereof, to revise the payment terms due to continuing impacts of COVID-19; and WHEREAS, on further recommendation of Management, the staff report was amended at the Board meeting revising the total number of concession agreements, for amendment, from nineteen (19) to twenty (20), as well as revising Attachment 1 to reflect the complete list of said twenty (20) agreements for amendment; and WHEREAS, Los Angeles World Airports (LAWA) operates a comprehensive concessions program at Los Angeles International Airport (LAX) that includes advertising and sponsorship, duty free merchandise, food and beverage, retail, and services operators In the terminal facilities. Contractually, concessionaires pay rent to LAWA in an amount equal to the greater of a percentage of gross sales or a Minimum Annual Guarantee (MAG). Due to the highly competitive concession market at LAX, the MAGs that were established when the contracts were executed are quite substantial; and WHEREAS, the decline in passenger traffic due to COVID-19 significantly reduced concession sales and prompted the Board of Airport Commissioners (Board) to temporarily authorize revised payment terms to suspend MAGs through June 30, 2021, and require concessionaires to pay rent only In the amount of the percentage of gross sales defined in each agreement. Unfortunately, the ongoing impacts of COVID-19 on travel have slowed the recovery of concession sales. The Amendment to the twenty (20) concession agreements listed in Attachment 1, will address said continuing impact; and |
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1 World Way Los Angeles California 90045.5803 Mail P.O. Box 92216 Los Angeles California 90009-2216 Telephone 855 463 5252 Internet WWW.lawa.org
Resolution No. 27363 |
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Resolution No. 27363 |
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WHEREAS, all other terms of the concession agreements will remain unchanged; and
WHEREAS, this action, as a continuing administrative activity, is exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article II, Section 2.f. of the Los Angeles City CEQA Guidelines; and
WHEREAS, the concessionaires are required by contract to comply with the provisions of the Living Wage and Service Contractor Worker Retention Ordinances; and
WHEREAS, the concessionaires are required to achieve the Airport Concession Disadvantaged Business Enterprise goals required in their agreements; and
WHEREAS, the concessionaires are required by contract to comply with the provisions of the Affirmative Action Program; and
WHEREAS, the concessionaires have each been assigned a Business Tax Registration Certificate number; and
WHEREAS, the concessionaires are required by contract to comply with the provisions of the Child Support Obligations Ordinance; and
Resolution No. 27363 |
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WHEREAS, the concessionaires have approved insurance documents, in the terms and amounts required, on file with LAWA; and
WHEREAS, the concessionaires have submitted the Contractor Responsibility Program Pledge of Compliance, and will comply with the provisions of said program; and
WHEREAS, the concessionaires must be determined by Public Works, Office of Contract Compliance, to be in compliance with the provisions of the Equal Benefits Ordinance prior to execution of their respective Amendments; and
WHEREAS, the concessionaires will be required to comply with the provisions of the First Source Hiring Program for all non-trade Los Angeles International Airport Jobs; and
WHEREAS, the concessionaires will comply with the provisions of the Bidder Contributions CEC Form 55; and
WHEREAS, the concessionaires will comply with the previsions of the MLO Bidder Contributions CEC Form 50; and
WHEREAS, actions taken on this Item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606;
NOW, THEREFORE, BE IT RESOLVED that the Board of Airport Commissioners adopted the amended Staff Report; determined that this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Article II, Section 2.f. of the Los Angeles City CEQA Guidelines; approved the Amendment to the twenty (20) Concession Agreements, listed in Attachment 1 attached hereto and made part hereof, to revise the payment terms due to continuing Impacts of COVID-19; and authorized the Chief Executive Officer, or designee, to execute the Amendment to said Concession Agreements after approval as to form by the City Attorney and approval by the Los Angeles City Council.
o0o
I hereby certify that this Resolution No. 27363
is true and correct, as adopted by the Board of
Airport Commissioners at Its Regular Meeting
held on Thursday, October 21, 2021.
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Grace Miguel – Secretary |
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BOARD OF AIRPORT COMMISSIONERS |
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Approved by Los Angeles City Council on December 8, 2021 |
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Attachment 1 - Concessions Agreement Summary |
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Resolution No. 27363 |
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Board File |
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No. LAA – 8613G |
SEVENTH AMENDMENT TO LOS ANGELES INTERNATIONAL AIRPORT TERMINAL
COMMERCIAL MANAGEMENT CONCESSION AGREEMENT NO. LAA-8613 FOR THE
TOM BRADLEY INTERNATIONAL TERMINAL, TERMINAL 2 AND THE MIDFIELD
SATELLITE CONCOURSE BETWEEN CITY OF LOS ANGELES DEPARTMENT OF
AIRPORTS AND URW AIRPORTS LLC
This Seventh Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement No. LAA-8613 for Terminal 2, Tom Bradley International Terminal and the Midfield Satellite Concourse (this “Seventh Amendment”) is made and entered into as of Dec. 15, 2021 (“Effective Date”) by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (“City”), acting by order of and through its Board of Airport Commissioners (“Board”), and URW AIRPORTS, LLC, a Delaware limited liability company (“TCM”), with reference to the following:
RECITALS
WHEREAS, City and TCM (f/k/a Westfield Concession Management, LLC and Westfield Airports, LLC) heretofore entered into that certain Los Angeles International Airport Terminal Commercial Manager Concession Agreement (Board File No. LAA-8613) dated March 1, 2012, as amended by that certain First Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement (Board File No. LAA-8613A) dated July 9, 2015 between City and TCM, by that certain Second Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement (Board File No. LAA-8613B) dated June 3, 2016 between City and TCM, by that certain Third Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement (Board File No. LAA-8613C) dated November 13, 2017 between City and TCM, by that certain fourth amendment (the “Fourth Amendment”) in the form of a letter agreement (Board File No. LAA-8613D) dated April 22, 2020 and entered into on May 6, 2020 between City and TCM, by that certain fifth amendment (the “Fifth Amendment”) in the form of a letter amendment (Board File No. LAA-8613E) dated September 30, 2020 and entered into on December 30, 2020 between City and TCM, and by that certain Sixth Amendment (the “Sixth Amendment”) to Los Angeles International Airport Terminal Commercial Management Concession Agreement (Board File No. LAA-8613F) dated April 30, 2021 (as amended, the “Agreement”). Unless otherwise defined in this Seventh Amendment or the context otherwise requires, the capitalized terms used in this Seventh Amendment shall have the same respective meanings as ascribed to such terms in the Agreement.
WHEREAS, in consideration of the recent decline in flight and passenger traffic at the Airport and the resulting temporary decline in airport revenue generating opportunities, the parties desire to amend the Agreement, among other things, to temporarily adjust the Minimum Annual Guaranteed Rent (sometimes also referred to as the MAG) on the terms and conditions set forth in this Seventh Amendment.
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AGREEMENT
NOW, THEREFORE, the parties hereto, for and in consideration of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties hereto, do mutually agree that the Agreement, BE AMENDED AS FOLLOWS:
Section 1 — Definitions. For purposes of this Seventh Amendment, the following capitalized terms shall have the respective meanings as set forth below:
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Section 2 — Change of Annual Period for Calculation of Base Rent. In order to implement the MAG suspension and temporary adjustment provisions of this Seventh Amendment, the annual period for the calculation of the Base Rent (including the calculation of the Minimum Annual Guaranteed Rent and the Percentage Rent) under Article IV of the Agreement is being amended by this Section 2, effective for the period beginning July 1, 2021 and continuing thereafter through the end of the Primary Term, to be the twelve (12) month period beginning July 1st and ending June 30th (instead of the calendar year). Accordingly, effective for the period beginning July 1, 2021 and continuing thereafter through the end of the Primary Term, the term “Year” as used in the Agreement shall mean each twelve (12) month period beginning July 1st and ending June 30th (including any portion of a Year in which the expiration or earlier termination of the Primary Term occurs). As the result of the foregoing amendment to the term Year, the calculation of the Base Rent for the period beginning January 1, 2021 and ending June 30, 2021 will be for such 6-month period instead of an annual period and applicable annual amounts will be prorated accordingly. Notwithstanding the foregoing amendment to the term Year, the annual period for measuring Performance Metrics under Section 3.2 of the Agreement shall remain the calendar year and the Performance Metrics Measurement Period shall remain unchanged. For clarity and avoidance of doubt, the foregoing amendment to the term “Year” does not change the Expiration Date of the Agreement.
Section 2.1. As the result of the foregoing amendment to the term Year, the time period for the annual update of the Business and Operations Plan under Section 3.2 of the Agreement shall be changed as set forth in this Section 2.1. Within thirty (30) days following the Effective Date, TCM shall submit to City for approval TCM’s proposed updated Business and Operations Plan for the July 1, 2021 through June 30, 2022 Year. For subsequent Years, TCM shall submit its proposed updated Business and Operations Plan to City for approval no later than April 1st immediately preceding the applicable Year (i.e., no later than three (3) months prior to the commencement date of the applicable Year).
Section 3 — Amendment to Agreement Section 4.1.2 for the Period Beginning July 1, 2021 and Thereafter. Effective for the period beginning July 1, 2021 and continuing thereafter through the end of the Primary Term, Section 4.1.2 of the Agreement is hereby amended and restated to read in its entirety as follows:
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Section 4 — Amendment to Agreement Section 4.1.2.1 for the Period Beginning July 1, 2021 and Thereafter. Effective for the period beginning July 1, 2021 and continuing thereafter through the end of the Primary Term, Section 4.1.2.1 of the Agreement is hereby amended and restated to read in its entirety as follows:
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Section 5 — Amendment to Fifth Sentence of Agreement Section 4.1.3 for the Period Beginning July 1, 2021 and Thereafter. Effective for the period beginning July 1, 2021 and continuing thereafter through the end of the Primary Term, the fifth sentence of Section 4.1.3 of
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Section 6 — Amendment to Agreement Section 4.10.2 for the Period Beginning July 1, 2021 and Thereafter. Effective for the period beginning July 1, 2021 and continuing thereafter through the end of the Primary Term, the date for the annual adjustment to the FPG under Section 4.10.2 of the Agreement shall be July 1st (instead of January 1st).
Section 7 — Conditions to Rental Suspension and Temporary Adjustment Provisions.
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respect to TCM. If any of such conditions fail to be satisfied by any sub-concessionaire(s), then neither TCM nor such sub-concessionaire(s) shall be entitled to receive the pro-rata share of such benefits of the rental suspension, temporary adjustment and rent credit provisions set forth in Sections 8, 9, 10, 11 and 12 of this Seventh Amendment. TCM shall immediately notify City of the failure of any of such conditions. TCM’s payment of reduced rent or acceptance of a rent credit pursuant to such Sections shall be deemed a representation to City that these conditions have been and continue to be fulfilled.
Section 7.1. TCM and its sub-concessionaires have not received and are not receiving a second draw or assistance for a covered loan under section 7(a)(37) of the Small Business Act (15 U.S.C. 636(a)(37)) that has been applied toward rent or the Minimum Annual Guaranteed Rent. TCM and its sub-concessionaires shall cooperate with City to confirm compliance with any audit to confirm compliance with applicable law, including but not limited to the American Rescue Plan Act (“ARPA”).
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Section 7.2. TCM and its sub-concessionaires continue to comply with their respective obligations to re-employ employees under Sections 4(a) and 4(c) of the Fourth Amendment.
Section 7.3. Each Unit shall be open for operations with adequate staffing to the satisfaction of the Chief Executive Officer. For a Unit to be considered open and to qualify for MAG abatement or temporary adjustment, TCM or its applicable sub-concessionaire must demonstrate to the satisfaction of the Chief Executive Officer that the total worker hours at such sub-concessionaire’s Unit is proportional to the passenger traffic in the terminal in which such Unit is located, using December 2019 total worker hours and passenger traffic as the basis of full worker hours/sales, unless TCM or its applicable sub-concessionaire can demonstrate to the Chief Executive Officer’s satisfaction that failure to achieve such staffing levels is solely due to challenges to hire employees as documented through significant, well-documented effort to do so; this provision shall not be construed in any case to require staffing levels that exceed December 2019 levels.
Section 7.4. TCM must consent to and approve of City’s calculation of fund allocations under the American Rescue Plan Act (“Act”) as described in Section 12 below.
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Section 14 — Determinations Relating to Passenger Enplanements. For purposes of calculating the total number of passenger enplanements at the terminals and applying the provisions of Sections 8 through 11 of this Seventh Amendment (including the determination of the Recovery Ratio and Complete Recovery), the Midfield Satellite Concourse (also known as the TBIT-West Gates) shall be deemed to be a part of TBIT (i.e., TBIT and the Midfield Satellite Concourse are deemed to be a single terminal) and the number of passenger enplanements in Terminal 2 for the Comparison Enplanement Period will be adjusted as set forth in this Section. The number of passenger enplanements in Terminal 2 prior to the Terminal 3 Reopening (as defined below) shall be adjusted to equal two-thirds (2/3) of the total number of passenger enplanements. For Comparison Enplanement Periods after the Terminal 3 Reopening occurs, the number of passenger enplanements in Terminal 2 shall be the total number of passenger enplanements in Terminal 2 for the applicable Comparison Enplanement Period. The term “Terminal 3 Reopening” shall mean date on which Terminal 3 reopens twelve (12) or more gates. The determination of the total number of passenger enplanements in the commercial airline terminals at the Airport for any given period shall be made by the Chief Executive Officer, and such determination by the Chief Executive Officer shall be deemed binding and conclusive on TCM. The parties acknowledge that the Chief Executive Officer has determined that the total number of passenger enplanements in the following commercial airline terminals at the Airport for the Base Enplanement Period were as follows: (a) Terminal 2: 4,501,793; and (b) TBIT: 8,609,887.
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Section 16 — Correction to Agreement Section 4.1.2 for the Period January 1, 2019 Through June 30, 2021. In order to correct certain discrepancies in the Sixth Amendment, Amendment Section 9 of the Sixth Amendment (regarding the amendment and restatement of Section 4.1.2 of the Agreement) is hereby deleted. Effective for the period beginning January 1, 2019 and ending June 30, 2021, Section 4.1.2 of the Agreement is hereby amended and restated to read in its entirety as follows:
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Section 17 — Correction to Agreement Section 4.1.2.1 for the Period January 1, 2019 Through June 30, 2021. In order to correct certain discrepancies in the Sixth Amendment, Amendment Section 10 of the Sixth Amendment (regarding the amendment of Section 4.1.2.1 of the Agreement) is hereby deleted. Effective for the period beginning January 1, 2019 and ending June 30, 2021, Section 4.1.2.1 of the Agreement is hereby amended and restated to read in its entirety as follows:
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Section 18 — Surcharge Provision Amendment. The first sentence of Section 6.b of the Fifth Amendment between City and TCM is hereby deleted in its entirety and replaced with the following:
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Section 19 — Digital Program. TCM acknowledges that: (i) City intends to implement an airport-wide digital online shop and dine program and delivery system (“Digital Program”); (ii) such Digital Program may be operated by one or more third party contractors; (iii) if the Digital Program is implemented, TCM shall participate (and shall cause its sub-concessionaires to participate) in the Digital Program; and (iv) such Digital Program may not become effective until after the Effective Date of this Amendment. Nothing in this Section shall be construed to preclude participation in the pilot program authorized by Board Resolution no. 27007 (approving the Chief Executive Officer Consent to Permitted Uses).
Section 20 — TCM’s Representations. As a material inducement to City’s entering into this Seventh Amendment, TCM hereby represents, warrants and covenants to City as follows: (1) City is not in default in the performance of any of the terms or provisions of the Agreement; (2) City has duly delivered the Premises to TCM in accordance with the terms of the Agreement, and there exists no unresolved disputes or claims by TCM in connection with the Agreement (including, without limitation, for items of construction, repair or capital expenditure for which City is liable or obligated to pay for or to perform in connection with the Agreement); (3) TCM neither has nor claims any defenses, setoffs or credits against the payment of Rent payable under the Agreement; and (4) City shall be entitled to rely on the accuracy of the foregoing representations, warranties and covenants, and TCM hereby releases City from any claims relating to the foregoing matters. The foregoing shall not apply to the alleged pending claim by LS and Partners at LAX, LLC.
Section 21 — Miscellaneous. This Seventh Amendment may be executed in counterparts, including counterparts that are manually executed and counterparts that are in the form of electronic records and are electronically executed. An electronic signature means a signature that is executed by symbol attached to or logically associate with a record and adopted by a party with the intent to sign such record, including facsimile or e-mail signatures. All executed counterparts shall constitute one amendment, and each counterpart shall be deemed an original. The parties hereby acknowledge and agree that electronic records and electronic signatures, as well as facsimile signatures, may be used in connection with the execution of this Seventh Amendment and electronic signatures, facsimile signatures or signatures transmitted by electronic mail in so-called PDF format shall be legal and binding and shall have the same full force and effect as if a paper original of this Seventh Amendment had been delivered that had been signed using a handwritten signature. All parties to this Seventh Amendment (i) agree that an electronic signature, whether digital or encrypted, of a party to this Seventh Amendment is intended to authenticate this writing and to have the same force and effect as a manual signature; (ii) intended to be bound by the signatures (whether original, faxed, or electronic) on any document sent or delivered by facsimile or electronic mail or other electronic means; (iii) are aware that the other party(ies) will rely on such signatures; and, (iv) hereby waive any defenses to the enforcement of the terms of this Seventh Amendment based on the foregoing forms of signature. If this Seventh Amendment has been executed by electronic signature, all parties executing this document are expressly consenting, under the United States Federal Electronic Signatures in Global and National Commerce Act of 2000 (“E-SIGN”) and the California Uniform Electronic Transactions Act (“UETA”) (California Civil Code §1633.1 et seq.), that a signature by fax, e-mail, or other electronic means shall constitute an Electronic Signature to an Electronic Record under both E-SIGN and UETA with respect to this specific transaction.
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Section 23 — Full Force and Effect. Except as amended and modified as set forth in this Seventh Amendment, the terms and provisions of the Agreement remain the same and in full force and effect.
[signatures appear on following page]
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IN WITNESS WHEREOF, City has caused this Seventh Amendment to be executed on its behalf by the Chief Executive Officer, or his or her authorized signatory, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
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MICHAEL N. FEUER, |
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ACKNOWLEDGEMENT OF GUARANTOR
The undersigned, URW WEA LLC, a Delaware limited liability company (herein, “Guarantor”), who is the successor by merger to Westfield America, Inc., a Missouri corporation, hereby represents, acknowledges, and agrees as follows: (1) Guarantor has reviewed the foregoing Seventh Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for the Tom Bradley International Terminal, Terminal 2 and the Midfield Satellite Concourse, between the City of Los Angeles and URW Airports, LLC (“Seventh Amendment”); (2) Guarantor is the guarantor of TCM’s obligations under the Agreement described in the Seventh Amendment pursuant to that certain Guaranty Agreement executed concurrently with the execution of the Agreement (the “Guaranty”); (3) Guarantor approves of TCM’s execution of the Seventh Amendment and agrees with its terms; and (4) the Guaranty is hereby reaffirmed, and the Guaranty is and remains in full force and effect and continues to guarantee the prompt payment and performance by TCM of all of the terms of the TCM Agreement, as amended. This Acknowledgement of Guarantor has been executed as of the date of execution of the Seventh Amendment by TCM.
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.19.8
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CONFORMED COPY |
BOARD FILE NOS. LAA-8640F |
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LAX Van Nuys City of Los Angeles Karen Bass Board of Airport Beatrice C. Hsu Valeria C. Velasco Gabriel L. Eshaghian Justin Erbacci |
RESOLUTION NO. 27691 WHEREAS, on recommendation of Management, there was presented for approval, Sixth Amendment to LAA-8640 and the Eighth Amendment to LAA-8613 with URW Airports, LLC covering terminal commercial management concessions at Los Angeles International Airport, to allow said concessionaire to structure more flexible short-term concession opportunities, return unusable spaces, and enter into a limited duty-free concession agreement in the Tom Bradley International Terminal; and
WHEREAS, since 2012, URW Airports, LLC (URW) has managed concessions in Terminals 1, 3, and 6 pursuant to Concession Agreement LAA 8640 and in Terminal 2 and Tom Bradley International Terminal (TBIT) pursuant to Concession Agreement LAA-8613. Over the past ten years, passenger traffic and demographics within those terminals have changed due to airline relocations and new passenger behavior patterns post COVID-19 pandemic. The Amendments will provide flexibility to allow URW to develop new revenue opportunities, offer more economically viable terms to small, local, and disadvantaged businesses, and return space that is no longer operable due to changes in airline operations or facility design; and
WHEREAS, to support the shifting passenger expectations and expand revenue generating opportunities, URW has requested the opportunity to replace existing brands in the retail island in TBIT that have been underperforming. To take advantage of international passenger demand for duty-free luxury brand goods, URW proposes to sublease approximately 5,800 square feet to LAWA’s existing duty-free operator – DFS Group, LP (DFS). URW’s concession agreement does not allow URW to operate duty-free retail concessions; and
WHEREAS, in addition, LAWA and URW have worked collaboratively to find progressive ways to attract new small and disadvantaged businesses into the airport concessions. The biggest hurdles for small and disadvantaged concession operators are the high cost of construction and operations at Los Angeles International Airport (LAX). URW’s current agreements do not support flexibility to develop progressive revenue and cost-sharing models; and
WHEREAS, lastly, URW’s current agreements do not allow for flexibility to return spaces that are impacted by operational changes that limit passengers access to certain concession locations. Limited passenger access to spaces diminishes a concessionaire’s ability to generate revenue; and
WHEREAS, sales of the existing concessions in the retail island in TBIT have not performed to expectations. To align retail offerings with international passenger demand for duty-free merchandise, URW has proposed to expand duty-free luxury brand offerings in TBIT, which are expected to generate three times more sales annually than the existing concession brands. The Eighth Amendment to LAA-8613, which includes all space in TBIT, will allow URW to execute a subcontract with LAWA’s existing duty-free operator to support the proposal; and
WHEREAS, URW and DFS have agreed to terms of a sublease agreement that will provide approximately 5,800 square feet of space in the TBIT Great Hall to DFS through June 30, 2034. Pursuant to the sublease, DFS plans to invest approximately [**] to expand the luxury brand offering, enhance existing stores, and create an expanded/cohesive duty-free shopping experience. To support the site improvement, the Amendment to LAA-8613 will temporarily waive URW’s rent on the 5,800 square feet space for period not to exceed six (6) months; and |
1 World Way Los Angeles California 90045-5803 Mail P.O Box 92216 Los Angeles California 90009-2216 Telephone 855 463 5252 Internet www.lawa.org
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Resolution No. 27691 WHEREAS, URW and DFS expect sales of duty-free luxury items in said location will be at least three times greater than the sales of the existing specialty retail units due to the competitive advantage duty-free merchandise has over duty-paid high-end retail. In addition, the retail island is strategically located adjacent to the existing DFS locations, which provides the opportunity to create an expanded, cohesive luxury duty-free retail experience that will be intuitive to passengers as they move through the TBIT Great Hall; and WHEREAS, the original Request for Proposals for the Terminal Commercial Manager did not include the opportunity to operate duty-free retail concessions. However, management’s analysis is that it is not practical to rebid the 5,800 square feet of space because of the limited size and limited remaining term, which would probably not result in more advantageous terms than those being offered by URW. Therefore, management staff instead recommends allowing URW to operate a limited duty-free retail concession, only within that space; and WHEREAS, to support the proposal to allow URW to operate limited duty-free concessions, LAWA staff simultaneously requested Board of Airport Commissioners (BOAC) approval of an amendment to DFS’s concession agreement. Said amendment will allow DFS to return underperforming spaces in Terminals 2 and 6, which URW intends to repurpose with new food and retail offerings that support passenger demands in these terminals. The DFS amendment also will extend the term of the DFS agreement by five (5) years, which will support DFS’s proposed investment to upgrade the retail island and its existing spaces in TBIT. The term extension will align the termination of the DFS and URW agreements to 2034, which allows LAWA greater flexibility to release the concessions spaces in TBIT in the future; and WHEREAS, in addition, the Sixth Amendment to LAA-8640 and Eighth Amendment to LAA-8613 will provide URW the opportunity to offer more flexible economic terms to Airport Concessions Disadvantaged Business Enterprise (ACDBE) and other small and local businesses. Under the terms of the Amendments, URW and LAWA will be able to offset capital costs and provide revised rent structures that reduce guaranteed rents and provide higher percent rent payments after certain recovery thresholds are met. LAWA and URW staff believe this approach will provide more opportunities for new and existing small businesses and ACDBEs to gain experience operating at LAX. All new agreements developed pursuant to the amended terms will require a separate action by BOAC to approve the terms of the proposed short term sub-concession agreements; and WHEREAS, the Amendments will also allow URW to request to return certain concession space if the area is impacted by airport or other operational needs. This flexibility will allow URW and concessions to focus on favorable opportunities instead of seeking remedies for locations that are no longer viable. All request to return space must be approved by LAWA’s Chief Executive Officer; and WHEREAS, issuance of permits, leases, agreements, gate and space assignments, and renewals, amendments or extensions thereof, or other entitlements granting use of existing airport facilities or its operations is exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article III, Class 1 (18)(c) of the Los Angeles City CEQA Guidelines; and WHEREAS, URW is required by contract to comply with the provisions of the Living Wage Ordinance, Affirmative Action Program, and Child Support Obligations Ordinance; and WHEREAS, Procurement Services Division has reviewed this action (File 5124) and established the following ACDBE goals: Food/Beverage - 25%; Retail - 20%. URW proposed ACDBE participation at said goals. URW has achieved 34.23% participation for Food/Beverage and 29.80% ACDBE participation for Retail to date; and |
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Resolution No. 27691 WHEREAS, URW is assigned Business Tax Registration Certificate 0002573628-0001-4; and WHEREAS, URW has approved insurance documents, in the terms and amounts required, on file with LAWA; and WHEREAS, URW has submitted the Contractor Responsibility Pledge of Compliance, and will comply with the provisions of said program; and WHEREAS, URW is required by contract to comply with the provisions of the First Source Hiring Program for all non-trade LAX jobs; and WHEREAS, URW has submitted the Bidder Contributions CEC Form 55, and will comply with its provisions; and WHEREAS, URW has submitted a signed Labor Peace Agreement, and will comply with its provisions; and WHEREAS, actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606; NOW, THEREFORE, BE IT RESOLVED that the Board of Airport Commissioners adopted the Staff Report; determined that this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Article III, Class 1 (18)(c) of the Los Angeles City CEQA Guidelines; approved the Sixth Amendment to LAA-8640 and the Eighth Amendment to LAA-8613 with URW Airports, LLC covering terminal commercial management concessions at Los Angeles International Airport, to allow said concessionaire to structure more flexible short-term concession opportunities, return unusable spaces, and enter into a limited duty-free concession agreement in the Tom Bradley International Terminal; found that this action is exempt from City Charter Sections 371(e)(10) and 372; and authorized the Chief Executive Officer, or designee, to execute said Sixth Amendment to LAA-8640 and the Eighth Amendment to LAA-8613 with URW Airports, LLC after approval as to form by the City Attorney and approval by the Los Angeles City Council. o0o I hereby certify that this Resolution No. 27691 is true and correct, as adopted by the Board of Airport Commissioners at its Regular Meeting held on Thursday, March 2, 2023. Grace Miguel – Secretary BOARD OF AIRPORT COMMISSIONERS Approved by Los Angeles City Council on August 15, 2023 |
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Board File |
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No. LAA-8613H |
EIGHTH AMENDMENT TO LOS ANGELES INTERNATIONAL AIRPORT
TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT NO.
LAA-8613 FOR THE TOM BRADLEY INTERNATIONAL TERMINAL, TERMINAL 2
AND THE MIDFIELD SATELLITE CONCOURSE BETWEEN CITY OF LOS
ANGELES DEPARTMENT OF AIRPORTS AND URW AIRPORTS LLC
This Eighth Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement No. LAA-8613 for Terminal 2, Tom Bradley International Terminal and the Bradley West Gates formerly known as Midfield Satellite Concourse (this “Eighth Amendment”) is made and entered into as of Sept. 8, 2023 (“Effective Date”) by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (“City”), acting by order of and through its Board of Airport Commissioners (“Board”), and URW AIRPORTS, LLC, a Delaware limited liability company (“TCM”), with reference to the following:
RECITALS
WHEREAS, City and TCM (f/k/a Westfield Concession Management, LLC and Westfield Airports, LLC) heretofore entered into that certain Los Angeles International Airport Terminal Commercial Manager Concession Agreement (Board File No. LAA-8613) dated March 1, 2012, as amended by that certain First Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement (Board File No. LAA-8613A) dated July 9, 2015 between City and TCM, by that certain Second Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement (Board File No. LAA-8613B) dated June 3, 2016 between City and TCM, by that certain Third Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement (Board File No. LAA-8613C) dated November 13, 2017 between City and TCM, by that certain fourth amendment (the “Fourth Amendment”) in the form of a letter agreement (Board File No. LAA-8613D) dated April 22, 2020 and entered into on May 6, 2020 between City and TCM, by that certain fifth amendment (the “Fifth Amendment”) in the form of a letter amendment (Board File No. LAA-8613E) dated September 30, 2020 and entered into on December 30, 2020 between City and TCM, by that certain Sixth Amendment (the “Sixth Amendment”) to Los Angeles International Airport Terminal Commercial Management Concession Agreement (Board File No. LAA-8613F) dated April 30, 2021, and by that certain Seventh Amendment (the “Seventh Amendment”) to Los Angeles International Airport Terminal Commercial Management Concession Agreement (Board File No. LAA-8613G) dated December 15, 2021 (as amended, collectively, the “Agreement”). Unless otherwise defined in this Eighth Amendment or the context otherwise requires, the capitalized terms used in this Eighth Amendment shall have the same respective meanings as ascribed to such terms in the Agreement; and
WHEREAS, TCM currently occupies space in Terminal 2, Tom Bradley International Terminal (“TBIT”) and the Bradley West Gates formerly known as Midfield Satellite Concourse (“MSC”) pursuant to the Agreement; and “Right to Request Limited Concession Sales or Services.
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WHEREAS, the parties hereto desire to amend said Agreement; and
NOW THEREFORE, the parties hereto, for and in consideration of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties hereto, do mutually agree that the Agreement, BE AMENDED AS FOLLOWS:
Section 1 – Amendment to Section 3.3.3. Section 3.3.3 to the Agreement is hereby amended and restated to read in its entirety as follows:
Notwithstanding anything to the contrary in this Agreement, either Party may invite the other Party to enter into or participate in a concession agreement within the Areas with economic terms, including but not limited to rental terms, such as Minimum Annual Guaranteed Rent, Percentage Rent, investment, or tenant improvement allowances, that may vary from those that would otherwise be applicable under this Agreement (“Limited Concession”), provided that each such Limited Concession: (i) is intended to increase ACDBE participation and/or participation from similar businesses with different certifications such as Minority Business Enterprise and Women-Owned Business Enterprise Requirements; (ii) is in a space that is vacant and/or an impaired existing space operating at or above [**] during any twelve (12) month period despite good faith efforts to recover performance; and (iii) is subject to separate Board approval in its sole discretion. The Parties shall negotiate in good faith regarding the terms of such Limited Concession.
Section 2 – Amendment to Section 3.4. Section 3.4.2 is hereby added to the Agreement as follows:
“3.4.2. Notwithstanding the foregoing, TCM may enter into a limited duty-free and duty-paid concession agreement (“Limited Duty Free Concession”) with LAWA’s existing Duty Free Operator (“DFO”) that operates at LAX pursuant to the Los Angeles International Airport Duty Free Merchandise Concession Agreement LAA-8647, as amended, for duty-free and duty-paid sales at the specific location identified in Schedule 3.4.2 (“Limited Duty Free/Paid Location”).
3.4.2.1. Notwithstanding anything to the contrary in this Agreement, the Minimum Annual Guaranteed Rent for the Limited Duty Free / Paid Location shall be suspended from June 1, 2023 until the earlier of: (i) commencement of retail operations at the Limited Duty Free / Paid Location or (ii) November 28, 2023.”
Section 3- Amendment to Section 10.3. Section 10.3 is hereby added to the Agreement as follows:
“Notwithstanding Sections 10.1 and 10.2, in the event that a gate, gate hold room or area of the Airport is permanently closed due to the operational needs of the City or an airline and such closure negatively impacts a concession space(s), TCM shall have the right to request to return the impacted space(s) without any monetary or legal penalty to TCM, provided that any request to return space is subject to approval by the CEO or his or her designee. In addition, if the City decides to replace the identified impacted concession space(s), TCM shall have the right of first refusal for any replacement unit(s) for ninety (90) days. Nothing herein shall be construed to limit City’s right to terminate for convenience under Section 9.”
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Section 4 – TCM’s Representations. As a material inducement to City’s entering into this Eighth Amendment, TCM hereby represents, warrants and covenants to City as follows: (1) City is not in default in the performance of any of the terms or provisions of the Agreement; (2) City has duly delivered the Premises to TCM in accordance with the terms of the Agreement, and there exists no unresolved disputes or claims by TCM in connection with the Agreement (including, without limitation, for items of construction, repair or capital expenditure for which City is liable or obligated to pay for or to perform in connection with the Agreement); (3) TCM neither has nor claims any defenses, setoffs or credits against the payment of Rent payable under the Agreement; and (4) City shall be entitled to rely on the accuracy of the foregoing representations, warranties and covenants, and TCM hereby releases City from any claims relating to the foregoing matters.
Section 5 – Miscellaneous. This Eighth Amendment may be executed in counterparts, including counterparts that are manually executed and counterparts that are in the form of electronic records and are electronically executed. An electronic signature means a signature that is executed by symbol attached to or logically associate with a record and adopted by a party with the intent to sign such record, including facsimile or e-mail signatures. All executed counterparts shall constitute one amendment, and each counterpart shall be deemed an original. The parties hereby acknowledge and agree that electronic records and electronic signatures, as well as facsimile signatures, may be used in connection with the execution of this Eighth Amendment and electronic signatures, facsimile signatures or signatures transmitted by electronic mail in so-called PDF format shall be legal and binding and shall have the same full force and effect as if a paper original of this Eighth Amendment had been delivered that had been signed using a handwritten signature. All parties to this Eighth Amendment (i) agree that an electronic signature, whether digital or encrypted, of a party to this Eighth Amendment is intended to authenticate this writing and to have the same force and effect as a manual signature; (ii) intended to be bound by the signatures (whether original, faxed, or electronic) on any document sent or delivered by facsimile or electronic mail or other electronic means; (iii) are aware that the other party(ies) will rely on such signatures; and, (iv) hereby waive any defenses to the enforcement of the terms of this Eighth Amendment based on the foregoing forms of signature. If this Eighth Amendment has been executed by electronic signature, all parties executing this document are expressly consenting, under the United States Federal Electronic Signatures in Global and National Commerce Act of 2000 (“E-SIGN”) and the California Uniform Electronic Transactions Act (“UETA”) (California Civil Code §1633.1 et seq.), that a signature by fax, e-mail, or other electronic means shall constitute an Electronic Signature to an Electronic Record under both E-SIGN and UETA with respect to this specific transaction.
Section 6 – Full Force and Effect. Except as amended and modified as set forth in this Eighth Amendment, the terms and provisions of the Agreement remain the same and in full force and effect.
[Signatures Appear on Following Page]
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IN WITNESS WHEREOF, City has caused this Eighth Amendment to be executed on its behalf by the Chief Executive Officer, or his or her authorized signatory, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
APPROVED AS TO FORM: |
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CITY OF LOS ANGELES |
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HYDEE FELDSTEIN SOTO, City Attorney |
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Deputy/Assistant City Attorney |
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Chief Executive Officer |
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City of Los Angeles, Department of Airports |
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Date: |
Mar 14, 2023 |
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ATTEST: |
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“TCM” |
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URW AIRPORTS, LLC |
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By: |
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By: |
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Name: |
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Name: |
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Assistant Secretary |
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Title: |
SVP, Airport operations |
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ACKNOWLEDGEMENT OF GUARANTOR
The undersigned, URW WEA LLC, a Delaware limited liability company (herein, “Guarantor”), who is the successor by merger to Westfield America, Inc., a Missouri corporation, hereby represents, acknowledges, and agrees as follows: (1) Guarantor has reviewed the foregoing Eighth Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for the Tom Bradley International Terminal, Terminal 2 and the Midfield Satellite Concourse, between the City of Los Angeles and URW Airports, LLC (“Eighth Amendment”); (2) Guarantor is the guarantor of TCM’s obligations under the Agreement described in the Eighth Amendment pursuant to that certain Guaranty Agreement executed concurrently with the execution of the Agreement (the “Guaranty”); (3) Guarantor approves of TCM’s execution of the Eighth Amendment and agrees with its terms; and (4) the Guaranty is hereby reaffirmed, and the Guaranty is and remains in full force and effect and continues to guarantee the prompt payment and performance by TCM of all of the terms of the TCM Agreement, as amended. This Acknowledgement of Guarantor has been executed as of the date of execution of the Eighth Amendment by TCM.
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“GUARANTOR” |
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ATTEST: |
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URW WEA LLC |
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Assistant Secretary |
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Title: |
Assistant Secretary |
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Exhibit 4.19.9
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BOARD FILE NOS. 2013 x LAA-8542A-6 LAA-8552A-6 LAA-8640G LAA-8546A-6 LAA-8586A-6 LAA-8843E LAA-8547A-6 LAA-8587A-7 LAA-8964E LAA-8548A-6 LAA-8549F LAA-9094C LAA-8550A-6 LAA-8589F LAA-9208A LAA-8551A-6 LAA-86131 LAA-9238A |
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RESOLUTION NO. 28084 |
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LAX Van Nuys City of Los Angeles Karen Bass Mayor Board of Airport Commissioners Karim Webb Matthew M. Johnson Vanessa Aramayo Courtney La Bau Victor Narro John Ackerman |
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WHEREAS, on recommendation of Management, there were presented for approval, Amendments to the In-Terminal Concession Agreements at Los Angeles International Airport listed in Exhibit 1, attached hereto and made part hereof; and there was presented for adoption, the Los Angeles International Airport and Van Nuys Airport Concessions Standard Operating Procedures document, also attached hereto and made part hereof, that includes the new Pricing Policy; and WHEREAS, the concession agreements listed in Exhibit 1 represent in-terminal food and beverage, and retail at Los Angeles International Airport (LAX). The amendment to said concession agreements will remove certain sections from the agreements that will be incorporated into a new LAX and Van Nuys Airport Concessions Standard Operating Procedures (Concessions SOP) rules and regulations document; and WHEREAS, the new Concessions SOP will include rules and procedures for concessions pricing, payment due dates, security guarantees, as well as create a new distressed concessions program, all of which are designed to improve the economics for in-terminal concession partners of Los Angeles World Airports (LAWA) that continue to struggle with lower passenger volumes and higher costs pressures; and WHEREAS, many factors that impact concession operating economics have changed since said agreements were executed and unsustainable post-pandemic conditions – driven by rising labor and costs of goods sold, high interest rates, and inflation – are coupled with lagging enplanement growth. The labor costs alone at LAX have risen over 80% since the agreements were first executed. In addition, LAX passenger traffic has fallen post COVID-19, with enplanements down 12% and sales 10% below calendar year 2019 levels. The impact of those factors has created unsustainable economics for the food and beverage and retail concession operators at LAX; and WHEREAS, when the original concession agreements were executed, the living wage and health benefits were set at $10.70 per hour, and $15.37 per hour if health benefits were not provided. The living wage and health benefits hourly rates that became effective July 1, 2024 are $19.28 and $25.23 per hour if health benefits are not provided. The Los Angeles City Council proposed an ordinance to increase the living wage which, if approved, will be effective February 1, 2025, and increases the hourly rate to $25 and then again increases the wages to $26.25 on July 1 with increases annually through July 1, 2028 capping at $30. The new proposed ordinance also has a mandatory health benefit of $8.35 per hour to be adjusted annually; and WHEREAS, to address the challenges that lower revenues and higher costs are having on concessionaires at LAX, LAWA staff reviewed the concession agreements and identified several requirements that can be adjusted without impacting the validity of the Request for Proposals that resulted in the agreement awards. Following are those items: ●
Airport Concessions Pricing Policy (removing the 18% cap on all items except bottled water, feminine hygiene products, over the counter medication, and baby products)
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Hours of Operation (currently all concessions must be opened one hour before the first flight departs and one hour after the last flight departs)
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Distressed Concessions Program to address struggling concessionaires on individual basis; and
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I World way Los Angeles California 90C45-5803 Mail P C Box 92216 Los Angeles California 90009-2216 Telephone 855 463 5252 Internet www lawa org
Resolution No. 28084 |
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WHEREAS, the in-terminal food and beverage and retail concession agreements currently cap prices that concessionaires can charge at 18% above street pricing. When the Airport Concessions Pricing Policy was originally implemented in 2010, an 18% premium was considered sufficient to ensure profitability for concession operators. The 80% increase in labor costs and 10% decline in concession sales is creating unsustainable operating margins for those concessionaires; and |
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WHEREAS, amending the Airport Concessions Pricing Policy to allow for the concessionaires to set their pricing will allow more flexibility for concessionaires to respond to rising business costs. It will remove the requirement for 18% above street pricing and allow for open market pricing on all items except essential products like bottled water, feminine hygiene products, over-the-counter medication, and baby products which will remain capped 18% above street prices; and |
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WHEREAS, in addition, LAWA proposed to allow flexibility with some administrative components of the leases that will alleviate some of the costs concessionaires incur. For example, rules may be changed to allow less costly financial instruments to be used to guarantee rents. The due dates for rents may also be amended to allow rents to be paid at the end of the month rather than in advance of actual sales as is currently the case. Further, LAWA is creating a distressed concessions relief program that will allow for any concessionaire that can show a direct operating loss over a 12-month period within the previous 18 months the ability to apply for consideration of temporary assistance such as repayment plans or other restructuring of terms as may be approved by the Board of Airport Commissioners on a case-by-case basis, to be determined based on the need; and |
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WHEREAS, in addition, the following non-revenue-related, operational items are to be moved from the concession agreements into the new Concessions SOP that LAWA’s Chief Executive Officer can adjust globally, rather than amending each lease individually; thus, allowing for more flexibility in LAX operational changes: |
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Utility payment structure;
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Deliveries, Access and Coordination;
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Rules for Refuse Removal;
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Airport Operations (including items like parking on the airfield, terminal operating hours);
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Pest Control rules and regulations;
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Airport Security; and
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Alternative Fuel Vehicle Requirement Program; and
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WHEREAS, the Concessions SOP will be incorporated into the future amendment to the LAX Rules and Regulations; and |
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WHEREAS, actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606; |
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NOW, THEREFORE, BE IT RESOLVED that the Board of Airport Commissioners adopted the staff report; further adopted staff’s determination that this item, involving a continuing administrative activity, is exempt from the California Environmental Quality Act (CEQA) requirements pursuant to Article II, Section 2.f of the Los Angeles City CEQA Guidelines, and that general policy procedure making is exempt from CEQA requirements pursuant to Article II, Section 2.n of the Los Angeles City CEQA Guidelines; approved the Amendments to the In-Terminal Concession Agreements at Los Angeles International Airport listed in Exhibit 1, attached hereto and made part hereof; further adopted the Los Angeles International Airport and Van Nuys Airport Concessions Standard Operating Procedures document, also attached hereto and made part hereof, that includes the new Pricing Policy; and authorized execution of the Amendments to said In-Terminal Concession Agreements at Los Angeles International Airport. |
Resolution No. 28084 |
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o0o |
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I hereby certify that this Resolution No. 28084 |
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is true and correct, as adopted by the Board of |
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Airport Commissioners at its Special Meeting |
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held on Thursday, December 12, 2024. |
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Grace Miguel - Secretary |
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BOARD OF AIRPORT COMMISSIONERS |
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Approved by Los Angeles City Council on February 4, 2025 |
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Attachments: |
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Exhibit 1 - List of In-Terminal Concession Agreements
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Los Angeles International Airport & Van Nuys Airport Concessions Standard Operating Procedures
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Exhibit 1 to |
Resolution 28084 |
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List of In-Terminal Concession Agreements
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Attachment to |
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Resolution 28084 |
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(page 1 of 23) |
Los Angeles International Airport & Van Nuys Airport
Concessions Standard Operating Procedures
January 1, 2025
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Attachment to |
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Resolution 28084 |
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(page 2 of 23) |
Table of Contents
1. |
Applicability |
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2. |
Definitions |
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3. |
Public Address System |
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Wireless Communication |
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5. |
Pricing Policy for Concessionaires at Los Angeles World Airport and Van Nuys Airport |
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a. Introduction |
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b. Pricing Flexibility |
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c. Price Display |
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d. Pricing Reporting |
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e. Market Basket |
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f. Pricing Compliance |
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g. Conclusion |
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6. |
Utilities |
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7. |
Other Fees & Charges |
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8. |
Hours of Operation |
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9. |
Deliveries; Access & Coordination |
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10. |
Removal of Garbage & Refuse |
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11. |
Refuse Removal Costs |
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12. |
Prohibited Acts |
11 |
13. |
Taxes |
12 |
14. |
Licenses & Permits |
13 |
15. |
Compliance with Laws |
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16. |
Airport Operations |
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17. |
Pest Control |
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18. |
Disabled Access |
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19. |
Child Support Orders |
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20. |
Business Tax Registration |
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21. |
Non-Discrimination & Affirmative Action Provisions |
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22. |
Security |
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23. |
Visual Artists’ Rights Act |
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24. |
Living Wage Ordinance |
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25. |
Service Contract Worker Retention Ordinance |
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26. |
Equal Benefits Ordinance |
19 |
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Attachment to |
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Resolution 28084 |
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(page 3 of 23) |
27. |
Contractor Responsibility Ordinance |
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28. |
First Source Hiring Program for Airport Employees |
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29. |
Environmentally Favorable Options |
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30. |
Municipal Lobbying Ordinance |
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31. |
Labor Peace Agreement |
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32. |
Alternative Fuel Vehicle Requirement Program |
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33. |
City Events |
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Exhibits | |
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Pricing Policy: Product/Menu/Service Report |
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Pricing Policy: Market Basket Report |
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Attachment to |
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Resolution 28084 |
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(page 4 of 23) |
1.Applicability
Concession Entities (as defined below) at Los Angeles International Airport or Van Nuys Airport shall comply with these procedures. Concession Entities (including but not limited to Terminal Commercial Managers) shall cause their concessionaires and sub-concessionaires (if any) to comply with these procedures.
2.Definitions
For purposes of these procedures, the following definitions shall apply:
“Concession” means any operation which provides, sells, rents or distributes goods, services, food, beverages, merchandise, or other products to the public at Los Angeles International Airport or Van Nuys Airport, including but not limited to: retail stores, food and beverage establishments, personal service providers, passenger service businesses, advertising displays, vending machines, entertainment facilities, or other similar revenue-generating operations intended to serve Airport patrons; provided, however, that “Concession” shall not include: (i) airlines or other air carriers (except for airline lounges), (ii) ground transportation providers, (iii) rental car services, (iv) parking operations, or (v) governmental or security operations.
“Concession Entity” shall include: (i) terminal concession managers (“TCM”) with terminal commercial management concession agreements with LAWA; (ii) concessionaires or sub-concessionaires at Los Angeles International Airport or Van Nuys Airport, (whether through concession agreements with LAWA or with TCM or otherwise); or (iii) any other individual or entity that is in possession of space that is intended to be used as a Concession at Los Angeles International Airport or Van Nuys Airport.
“Concession Entity’s Agreement” shall mean: (i) for Concession Entities with an agreement with LAWA, such Concession Entity’s respective agreement with LAWA; or (ii) in the case of Concession Entities with no direct agreement with LAWA, their agreement to the extent approved by LAWA, provided that in case of conflicts, the terms of these procedures and LAWA’s consent shall prevail, in that order. For the avoidance of doubt, for TCM’s concessionaires, Concession Entity’s Agreement shall mean Unit Concession Agreement.
“Executive Director” shall mean the general manager or Chief Executive Officer of LAWA.
“LAWA” or “Los Angeles World Airports” shall mean the City of Los Angeles Department of Airports.
“Premises” or “Unit” shall mean the respective space of each Concession Entity, as defined in their respective agreement with LAWA (or in the case of Concession Entities with no direct agreement with LAWA, their agreement approved by LAWA).
Unless the context requires otherwise, capitalized terms shall have their meanings as set forth in each Concession Entity’s Agreement provided, however, that if any definition in Concession Entity’s Agreement conflicts with a definition in these procedures, the definition in these procedures shall control for purposes of these procedures.
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Attachment to |
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Resolution 28084 |
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(page 5 of 23) |
3. |
Public Address System |
City shall have the right, in its sole discretion, to install one (1) or more public address system speakers in each Unit for announcing flight arrivals and departures and other Airport information. Concession Entity shall not install any public address, paging, or other similar audio system in the Premises (including any Unit) at any time, without the prior written approval of the Executive Director (in the Executive Director’s sole discretion). Any installation of a music system, audio/video display or television system in the Premises (including any Unit) shall require the prior written approval of the Executive Director, in his or her sole discretion; provided that no such system shall interfere with the City’s public address system.
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Wireless Communication |
Without the prior written consent of the Executive Director, in his or her reasonable discretion, Concession Entity shall not install or use any wireless workstations, access control equipment, wireless internet servers, transceivers, modems or other hardware that transmit or otherwise access radio frequencies. Notwithstanding the prior consent of the Executive Director for the installation of any such system or equipment, the Executive Director shall have the absolute right, upon thirty (30) days’ prior written notice, to require the removal of any such system or equipment (at Concession Entity’s or the concessionaire’s sole expense) in the event that such system or equipment interferes with any present or future systems or equipment installed by City at the Airport.
5. |
Pricing Policy for Concessionaires at Los Angeles World Airport and Van Nuys Airport |
Effective January 1, 2025
a.Introduction
Los Angeles World Airports (LAWA) is committed to providing a diverse and competitive range of retail, food and beverage and service options for its passengers and visitors. To achieve this goal, LAWA has adopted a flexible pricing policy that allows concession entities to set their own prices for the products, menu items and services they offer at their concessions, with the exception of the Market Basket items, and subject to certain requirements and limitations. This document outlines the procedures of the Pricing Policy, which will take effect on January 1, 2025.
b.Pricing Flexibility
Under the Pricing Policy, concession entities have the freedom to determine the prices of their retail products, food and beverage menu items and services, based on their own business strategies, market conditions, customer preferences, and operational costs. Concession Entities are encouraged to offer competitive and reasonable prices that reflect the value and quality of their products and services, and that meet the expectations and satisfaction of the customers.
As part of the pricing policy, LAWA has established a Market Basket of common retail products and food and beverage menu items that are offered by multiple concession entities at the airports. The Market Basket serves as a benchmark for comparing and evaluating the prices of the Concession Entities and ensuring that they are within a reasonable range. LAWA will update the Market Basket periodically, based on the availability and demand of the products and menu items, and the changes in the market conditions and consumer preferences.
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c.Price Display
Prices must be conspicuously displayed on all items for purchase, to the satisfaction of LAWA. Displays will include the name/description of the item for purchase and its sale price. Other specifics may be required on a case-by-case basis.
d.Pricing Reporting
To ensure transparency and accountability, Concession Entities are required to submit a pricing report to LAWA once a year, by January 1st, (with the exception of the Market Basket items, see Market Basket section E below) and every time a concession entity changes their menu, product list, service or the price of an item or service. The pricing report should include the following information for each product, menu item or service offered at the concession:
| ● | The name and description of the product, menu item or service; |
| ● | The unit size or portion size of the product or menu item; |
| ● | The previous price of the product, menu item or service, if applicable; and, |
| ● | The date of the last price change, if applicable. |
The pricing report must be submitted electronically to LAWA’s Commercial Development email account, concessionsreporting@lawa.org, using the template and format provided by LAWA (Exhibit 1). LAWA will review the pricing report and provide receipt of the report. LAWA reserves the right to request additional information or clarification from the Concession Entity. LAWA also reserves the right to reject any price of a Market Basket item that is deemed inconsistent with the Policy.
e.Market Basket
This section outlines the pricing procedures for specific categories of items, ensuring that prices are competitive and fair for consumers while allowing for a reasonable profit margin. These categories are:
| ● | Bottled Water |
| ● | Over-the-counter medication |
| ● | Feminine hygiene products |
| ● | Baby products |
The Concession Entity will price these items no more than 18% above street pricing. Street pricing is a price charged for an identical/comparable good and at a comparable business, which is a similar non-airport business located in a shopping center or commercial district within a 25-mile radius from the airport, with a similar style of service, product offering and menu.
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For the designated items in each of the above categories, every Concession Entity must submit a comprehensive Market Basket pricing report for review and approval by LAWA on a QUARTERLY basis. All prices will be reviewed and approved by LAWA prior to implementation. The Market Basket pricing report must be completed using the template and format provided by LAWA (Exhibit 2), which includes:
| ● | At least three (3) comparable businesses (with full name and address) with corresponding prices for each Market Basket item for purchase. |
| ● | The calculation to demonstrate the proposed pricing adheres to the Policy. |
The Market Basket pricing report must be submitted electronically to LAWA’s Commercial Development’s email account, concessionsreporting@lawa.org.
Quarterly submission due dates for the Market Basket pricing report, for each year, are:
| ● | January 1 |
| ● | April 1 |
| ● | July 1 |
| ● | October 1 |
If the date falls on a weekend (Saturday or Sunday) or a City-observed holiday, the due date will be the following business date.
f.Pricing Compliance
LAWA will monitor and enforce the compliance of the concession entity with the Pricing Policy, using various methods, such as price surveys, audits, inspections, and customer feedback. LAWA will notify the concession entity in writing of violations of this Policy. Concession entity must correct prices to conform to the pricing criteria within seven (7) calendar days of receipt of the Notice of Pricing Violation. If any City-initiated price comparisons disclose a violation of the requirements of this Agreement, the cost of such City-initiated price comparisons will be borne by the concession entity, and upon the delivery of an invoice from City, the concession entity must pay the same to City, plus fifteen percent (15%) of such cost incurred as an administrative fee (but in no event less than $100 per occurrence or such greater amount as may be reasonably adjusted by the Chief Executive Officer from time to time) (herein, the “Administrative Fee”), within thirty (30) days of receipt of City’s invoice. LAWA will take appropriate actions against any concession entity that fails to comply with the Pricing Policy, such as issuing warnings, imposing fines, or terminating the concession agreement, depending on the severity and frequency of the violation.
g.Conclusion
The Pricing Policy for concession entities at LAWA is designed to promote a fair and competitive environment for the retail, food and beverage and service concessions at the airports, and to enhance the customer experience and satisfaction. Concession entities are expected to adhere to the pricing policy and cooperate with LAWA in implementing and maintaining the pricing policy. LAWA will review and revise the pricing policy as needed, to ensure that it meets the needs and interests of all the stakeholders.
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6.Utilities
Utilities with respect to the Premises (including each Unit therein), including electricity, gas and water, shall be separately metered as to the Premises (and as to each Unit therein), at Concession Entity’s expense. If Executive Director agrees that it is impossible to separately meter a given utility with respect to all or a portion of a given Unit/Premises, then Concession Entity shall pay to City as Additional Rent a reasonable and non-discriminatory pro-rata amount of said utility invoice which includes said Unit/Premises, based upon Executive Director’s good faith estimate of Concession Entity’s share thereof Executive Director’s estimate may be based on the square footage of Concession Entity’s Premises compared with the square footage of the area serviced, or upon some other reasonable and non-discriminatory criteria designated by Executive Director in Executive Director’s good faith business judgment. City shall invoice Concession Entity for amounts due and Concession Entity shall pay the same on demand of receipt of City’s invoice. TCM shall have the right to pass through all of such charges for utilities to its Concessionaires but without any administrative mark-up or profit.
7.Other Fees & Charges
If City has paid any sum or sums or has incurred any obligations or expense which Concession Entity had agreed to pay or reimburse City for, or if City is required or elects to pay sum(s) or ensure obligation(s) or expense(s) by reason of the failure, neglect or refusal of Concession Entity to perform or fulfill any of the conditions, covenants or agreements contained in the Agreement, or as a result of an act or omission of Concession Entity contrary to said conditions, covenants, and agreements, Concession Entity shall pay the sum(s) so paid or the expense(s) so incurred (including all interest, costs, damages and penalties, and the same may be added to any installment of the fees and charges thereafter due hereunder), plus the Administrative Fee, as Additional Rent recoverable by City in the same manner and with like remedies applicable to any other component of Rent hereunder.
8.Hours of Operation
The Unit/Premises (including the Units within the Premises) shall be open for business every day, three hundred sixty-five (365) days per year. Concession Entity shall operate the Unit/Premises within a Facility in accordance with the following minimum hours of operation (“Minimum Hours of Operation”): (i) if such Unit is located on the departure level of a Facility, Minimum Hours of Operation shall be at least one hour before the first scheduled departure from such Facility until the last departure of the day from such Facility, without exception, and (ii) if such Unit is located on the arrival level of a Facility, Minimum Hours of Operation shall be from the first scheduled arrival at such Facility to at least an hour after the last scheduled arrival at such Facility, without exception. Except in connection with the expiration or earlier termination of Concession Entity’s Agreement, Concession Entity shall not vacate or abandon the Premises (including any Unit therein) at any time.
Executive Director May Alter Hours. Executive Director may, on 24-hour notice to Concession Entity to temporarily or permanently modify the Minimum Hours of Operation for any Unit/Premises. Concession Entity shall comply with modifications. Upon the written request of Concession Entity, Executive Director may, from time to time, authorize a later opening or earlier closing time for any Unit/Premises, provided Executive Director first finds that Concession Entity has submitted adequate justification therefor; provided, however, decreases in passenger traffic shall not be considered adequate justification.
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9.Deliveries; Access & Coordination
To the extent airside access rights are granted to Concession Entity, Concession Entity shall comply with all applicable Rules and Regulations and Laws in order to obtain clearance for airside access. Except and to the extent expressly directed by Executive Director in writing, all deliveries of products, goods, merchandise, supplies, and other materials to and from the Premises (including any Unit therein) and trash removal from the Premises (including any Unit therein) necessary to the operation of the Premises (or any Unit therein) shall be conducted through the airside locations (for TCM and its concessionaires it will be designated in the DIP Approval), as such airside locations may be changed by Executive Director from time to time upon written notice to Concession Entity. Concession Entity acknowledges and agrees that all such deliveries by Concession Entity shall be in conformance with the Rules and Regulations and security requirements in effect with respect to airside operations at the Airport, and Concession Entity shall bear all costs incurred by them in connection with their respective compliance. Concession Entity shall make (and shall cause its Concessionaires to make) deliveries only within the times and at locations authorized by Executive Director. Concession Entity shall require that all airside deliveries be made by vehicles and drivers qualified and permitted by City to drive over airside access roadways. Delivery hours and locations may be specified and changed from time to time at the sole discretion of Executive Director.
10.Removal of Garbage & Refuse
Concession Entity shall strictly comply with the Rules and Regulations and applicable laws regarding the disposition of trash, rubbish, refuse, garbage and recycled materials, shall regularly remove all trash, rubbish, refuse, garbage and recycled materials from the Premises (including any Unit therein) to the appropriate garbage or refuse disposal area or recycled materials area designated by Executive Director from time to time and shall remove the accumulation of all such material in such area or areas at frequent intervals. Prior to removal to such garbage or refuse disposal area, Concession Entity shall (TCM shall require its Concessionaires to) store all trash and other waste in covered, odor, leak and vermin proof containers (including recycling containers), such containers to be kept in areas not visible to members of the public. Accumulation of trash, boxes, cartons, barrels or other similar items shall not be permitted in any public area at Airport.
LAWA Waste Reduction and Removal. Concession Entity shall comply with current and future Rules and Regulations and other regulations promulgated by the City of Los Angeles regarding the reduction and recycling of trash and debris. Without limiting the generality of the foregoing, Concession Entity shall participate in meeting the Airport’s mandated goal of seventy percent (70%) waste diversion by 2015, by developing and implementing a program to remove as much recyclable material from the waste stream as possible (a “Recycling Program”). Any Recycling Program shall consist of at a minimum mixed office paper and cardboard recycling, beverage container recycling in employee break areas and public areas if applicable, diversion through 2-sided copying, reuse of pallets, utilization of minimum thirty percent (30%) recycled content copy paper and other recycled content paper goods. TCM shall prepare and submit to City a written description of such Recycling Program with respect to the Premises (and each Unit therein) as part of the TCM’s Business and Operations Plan. TCM shall incorporate reasonable revisions to such Recycling Program required by city. If Concession Entity’s corporate management has a written policy on waste reduction and sustainability, Concession Entity shall provide a copy of such policy to City at the notice address set forth in the Basic Information, Attention: LAWA Recycling Coordinator. Concessionaire shall provide a quarterly report to the LAWA Recycling Coordinator (in the form and format prescribed by City) detailing the volume and type of materials diverted from the waste stream in accordance with such Recycling Program, Such quarterly report shall also describe other waste minimization practices, such as use of compostable utensils and dishware, reuse of materials and equipment, salvaging of materials and recycling of construction and demolition waste. Without limiting the generality of City’s other access and inspection rights under Concession Entity’s Agreement, City shall have the right to access the Premises during regular business hours to review and verify Concessionaire’s compliance with its Recycling Program and other waste minimization practices. LAWA discourages the use of polystyrene foam including one-time use clamshell food containers, bowls, plates, trays, cartons, and cups in which food or beverages are placed or packaged. In addition, restaurants and food vendors are required to use biodegradable or compostable food service ware unless an affordable alternative is not available. TCM shall provide periodic reports as outlined in the Business and Operations Plan to the LAWA Recycling Coordinator (in the form and format prescribed by City) detailing the volume and type of materials diverted from the waste stream in accordance with such Recycling Program. Such reports shall also describe other waste minimization practices, such as use of compostable utensils and dishware, reuse of materials and equipment, salvaging of materials and recycling of construction and demolition waste. Without limiting the generality of City’s other access and inspection rights under Concession Entity’s Agreement, City shall have the right to access the Premises during regular business hours to review and verify Concession Entity’s compliance with its Recycling Program and other waste minimization practices. LAWA discourages the use of polystyrene foam including one-time use clamshell food containers, bowls, plates, trays, cartons, and cups in which food or beverages are placed or packaged. In addition, restaurants and food vendors are required to use biodegradable or compostable food service ware unless an affordable alternative is not available.
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Coordinated Delivery and Trash/Re-Cycling Removal System. Concession Entity acknowledges that the Executive Director may implement coordinated systems for airside access deliveries and Trash/Recycling Removal and that such coordinated systems may (a) be operated by one or more third-party contractors, (b) require the use of a designated transfer locations, (c) require the payment or reimbursement by Concession Entity, its Concessionaires and other participants of costs and expenses, and any such amounts payable or reimbursable if paid to City shall be Additional Rent hereunder, or may be payable to such third party contractors pursuant to separate agreements with such contractors; and (d) Concession Entity understands and acknowledges that, if implemented, participation with the coordinated systems may be mandatory. Concession Entity acknowledges that such coordinated systems may not become effective until after the commencement of the Primary Term of Concession Entity’s Agreement. Concession Entity shall be responsible for all deliveries until such time as Executive Director delivers written notice to Concession Entity that such systems are being implemented. TCM shall be permitted to pass through all of such costs and expenses to its Concessionaires but without any administrative markup or profit.
11.Refuse Removal Costs
Concession Entity shall comply with the provisions of Section: Deliveries; Access and Coordination, with regard to the disposition of trash and garbage, waste reduction and recycling. City may designate garbage or refuse disposal areas at each Facility for use by concessionaires. City reserves the right to charge, and in such event, Concession Entity shall pay to City as Additional Rent a reasonable and non-discriminatory pro-rata amount of the cost for segregation and/or removal of garbage and refuse from designated garbage or refuse disposal areas based upon Executive Director’s good faith estimate of Concession Entity’s (and its Concessionaires’) share thereof. Executive Director’s estimate may be based on Concession Entity’s Premises square footage compared with the square footage of the area serviced, or upon some other reasonable and not unjustly discriminatory criteria designated by Executive Director in Executive Director’s good faith business judgment. City shall invoice Concession Entity monthly for amounts due and Concession Entity shall pay the same to City as Additional Rent, on demand, of receipt of City’s invoice. TCM shall have the right to pass through all of such charges for refuse removal to its Concessionaires but without any administrative mark up or profit.
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12.Prohibited Acts
Concession Entity shall not do or permit to be done anything specified in the Sections below. Specifically, Concession Entity shall not: interfere with Access. Do anything which may interfere with free access and passage in the Premises, the Common Areas adjacent thereto (including, without limitation, the elevators, escalators, streets or sidewalks of the Airport), or any restricted non-Common Areas of the Airport, or hinder security, police, fire fighting or other emergency personnel in the discharge of their duties, or hinder access to utility, heating, ventilating or air- conditioning systems, or portions thereof, on or adjoining the Premises or the Common Areas adjacent thereto. Without limiting the generality of the foregoing, Concession Entity shall not install any racks, stands or other display of merchandise or trade fixtures at the Airport outside of the Premises without the prior written consent of Executive Director.
Interfere with Systems. Concession Entity shall not do anything which may interfere with the effectiveness of utility, heating, ventilating or air-conditioning systems or portions thereof in or adjoining the Premises (including lines, pipes, wires, conduits and equipment connected with or appurtenant thereto) or interfere with the effectiveness of elevators or escalators in or adjoining the Premises, or overload any floor in the Premises.
Permit Smoking Where Prohibited. Concession Entity shall not do anything contrary to the Board of Airport Commissioners’ policy, City ordinances, or Section 41.50 of the Los Angeles Municipal Code, which prohibits smoking.
Install Unauthorized Locks. Concession Entity shall not place any additional lock of any kind upon any window or interior or exterior door in any Unit, or make any change in any existing door or window lock or the mechanism thereof, unless a key therefore is maintained in such Unit, nor refuse, upon the expiration or sooner termination of Concession Entity’s Agreement, to surrender to Executive Director any and all keys to the interior or exterior doors in, and on each Unit of the Premises, whether said keys were furnished to or otherwise procured by Concession Entity, and in the event of the loss of any keys furnished by Executive Director, Concession Entity shall pay City, on demand, the cost for replacement thereof, and the cost of re-keying City’s locks. Concession Entity shall install lock boxes in all Units with copies of keys, as required by City and comply with LAWA emergency access requests.
Noise and Lights; Other Interference. Concession Entity shall not install loudspeakers, televisions, video monitors, sound systems, audio players, radios, flashing lights or other devices in the Premises (including any Unit therein) or used in a manner so as to be heard or seen outside of such Premises (or such Unit) without the prior written consent of Executive Director (including obtaining, and complying with, all applicable City construction approval conditions). Concession Entity shall conduct its, and require its Concessionaires to conduct their, operations on the Premises in such manner as to reduce as much as is reasonably practicable, considering the nature and extent of said operations, any and all activities which interfere unreasonably with the use of other premises adjoining the Premises at the Airport, including, but not limited to, the emanation from the Premises of noise, vibration, movements of air, fumes, and odors.
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Increase Liability. Concession Entity shall not do any act or thing upon any Unit which will invalidate, suspend or increase the rate of any fire insurance policy required under Concession Entity’s Agreement, or carried by City, covering the Premises, or the Terminals in which the same are located or which, in the opinion of Executive Director, may constitute a hazardous condition that will increase the risks normally attendant upon the operations contemplated under Concession Entity’s Agreement. If, by reason of any failure on the part of Concession Entity after receipt of notice in writing from City to comply with the provisions of this section, any fire insurance rate on the Premises, or any part thereof, or on the Terminals in which the same are located, shall at any time be higher than it normally would be, then Concession Entity shall pay City, on demand, as Additional Rent, that part of all fire insurance premiums paid by City which have been charged because of such violation of failure of Concession Entity; provided, however that nothing contained herein shall preclude Concession Entity from bringing, keeping or using on or about any Unit such materials, supplies, equipment and machinery as are appropriate or customary in carrying on its business, or from carrying on said business in all respects as is customary.
Permit an Auction. Concession Entity shall not allow any sale by auction in or upon any Unit.
Permit Lodging. Concession Entity shall not permit or use any Unit, or any part thereof, for lodging or sleeping purposes.
Airport Hazard. Concession Entity shall not make any uses of the Premises (including any Unit therein) in any manner which might interfere with the landing and taking off of aircraft from the Airport or otherwise constitute a hazard to such operations.
Permit Unlawful Use. Concession Entity shall not use or allow the Premises (including any Unit therein) to be used for any improper, immoral, unlawful or objectionable purposes, or commit any waste upon the Premises. In the event that any of the aforesaid covenants or restrictions set forth above in this Section is breached, City reserves the right to enter upon the Premises (including any Unit therein) and cause the abatement of such interference at the expense of Concession Entity.
13.Taxes
Concession Entity shall pay all taxes and assessments of whatever character that may be levied or charged upon the rights of Concession Entity (and its Concessionaires) to use the Premises (or any portion hereof), or upon Concession Entity’s and its Concessionaires’ improvements, fixtures, equipment or other property thereon, or upon Concession Entity’s or its Concessionaires’ operations in connection with Concession Entity’s Agreement. In accordance with California Revenue and Taxation Code Section 107.6(a), City states that by Concession Entity’s executing Concession Entity’s Agreement and accepting the benefits thereof, a property interest may be created known as a “possessory interest” and such property interest will be subject to property taxation. Concession Entity, as the party in whom the possessory interest is vested, may be subject to the payment of the property taxes levied upon such interest. Concession Entity shall protect, defend, indemnify and hold harmless City and City Agents from and against Claims incurred by or asserted against City or any City Agent in connections with any and all present or future taxes and assessments of whatever character that may be levied or charged upon the rights of Concession Entity (and/or its Concessionaires) to use the Premises (or any portion thereof), or upon Concession Entity’s and its Concessionaires’ improvements, fixtures, equipment or other property thereon, or upon Concession Entity’s or its Concessionaires’ operations in connection with Concession Entity’s Agreement. TCM shall have the right to pass through all of such taxes to its Concessionaires but without any administrative mark-up or profit.
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14.Licenses & Permits
Concession Entity (and shall require its Concessionaires to obtain and pay for) shall obtain and pay for all licenses and permits necessary or required by law for the conduct of Concession Entity’s and its Concessionaires’ operations at the Premises.
15.Compliance with Laws
Concession Entity shall, at Concession Entity’s sole cost and expense, fully and faithfully observe and comply with (a) all municipal, state and federal laws, statutes, codes, rules, regulations, ordinances, requirements, and orders (collectively, “Laws”), now in force or which may hereafter be in force pertaining to the Premises or Concession Entity’s or its Concessionaires’ use of the Premises, the Facility(ies) or the Airport (including without limitation, (i) all safety, security and operations directives of City, including by Executive Director, which now exist or may hereafter be promulgated from time to time governing conduct on and operations at the Airport or the use of facilities at the Airport; and (ii) any and all valid and applicable requirements of all duly constituted public authorities (including, without limitation, the Department of Transportation, the Department of Homeland Security, the Federal Aviation Administration, and the Transportation Security Administration)); (b) all recorded covenants, conditions and restrictions affecting the Airport (“Private Restrictions”) now in force or which may hereafter be in force; and (c) the Rules and Regulations. The judgment of any court of competent jurisdiction, or the admission of Concession and TCM in any action or proceeding against Concession and TCM, whether City be a party hereto or not, that Concession and TCM has violated any Laws or Private Restrictions, shall be conclusive of that fact as between Concession and TCM and City. As used in Concession Entity’s Agreement, “Laws” shall include all present and future federal, state and local statutes, ordinances and regulations and City ordinances applicable to Concession and TCM (or its Concessionaires), the Premises (including the Units), the Permitted Uses or the Airport, including but not limited to requirements under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., including, without limitation, to Title III thereof, and all regulations and guidelines related thereto, together with any and all laws, rules, regulations, ordinances, codes and statutes now or hereafter enacted by local or state agencies having jurisdiction thereof (including, without limitation, all of the requirements of Title 24 of the California Code of Regulations), as the same may be in effect on the date of Concession Entity’s Agreement and may be hereafter modified, amended or supplemented (collectively, the “ADA”), all acts and regulations relating in any way to food and drugs, worker’s compensation, sales and use tax, credit card processing, social security, unemployment insurance, hours of labor, wages, working conditions, the Immigration Reform and Control Act of 1986, the City of Los Angeles Administrative Code, and all Hazardous Materials Laws (as defined in Section 15 below).
Concession Entity agrees to pay or reimburse City as Additional Rent for any civil penalties or fines which may be assessed against City as a result of the violation by Concession Entity or any Concession Entity Party of any Laws or Private Restrictions, which payment shall be made by Concession Entity, upon demand, from receipt of City’s invoice for such amount and documentation showing that payment of such penalty or fine is Concession Entity’s responsibility hereunder.
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16.Airport Operations
Concession Entity acknowledges that the operational requirements of the Airport as an airport facility, including without limitation security requirements, are of paramount importance. Concession Entity acknowledges and agrees that Concession Entity must conduct its business (and require its Concessionaires to conduct their business) in a manner that does not conflict with the operational requirements of the Airport as an airport facility and that fully accommodates those requirements. Without limiting other waivers herein, Concession Entity waives all Claims against City and City Agents arising out of or connected to the operation of the Airport as an airport facility.
17.Pest Control
Concession Entity shall be solely responsible for a pest-free environment within the Common Areas, Storage Premises and Units located within the Premises by maintaining its own pest control services, in accordance with the most modern and effective control procedures. All materials used in pest control shall conform to applicable Laws. All controlled substances utilized shall be used with all precautions to obviate the possibility of accidents to humans, domestic animals and pets. Whenever City deems that pest control services must be provided to a building or area that includes Concession Entity’s Premises under the Agreement, Concession Entity shall pay for the costs of services provided for the Premises under the Agreement. TCM shall have the right to pass through such costs and expenses on a pro-rata basis to its Concessionaires.
18.Disabled Access
Concession Entity shall be solely responsible for fully complying with any and all applicable present or future rules, regulations, restrictions, ordinances, statutes, Laws, or orders of any federal, state, or local governmental entity or court regarding disabled access including any services, programs, improvements or activities provided by Concession Entity. Concession Entity shall be solely responsible for any and all Claims and damages caused by, or penalties levied as the result of, Concession Entity’s noncompliance. Further, Concession Entity agree to cooperate fully with City in its efforts to comply with the ADA.
Should Concession Entity fail to comply with Section 16.10.1, then City, shall have the right, but not the obligation, to perform, or have performed, whatever work is necessary to achieve equal access compliance. Concession Entity shall then be required to reimburse City for the actual cost of achieving compliance, plus the Administrative Fee, upon written demand.
19.Child Support Orders
Concession Entity’s Agreement is subject to Section 10.10, Article I, Chapter 1, Division 10 of the Los Angeles Administrative Code related to Child Support Assignment Orders, which is incorporated herein by this reference. A copy of section 10.10 and the Declaration of Compliance form have been attached to the procedures for the convenience of the parties. Pursuant to this Section, Concession Entity (and any concessionaire of TCM providing services to City under Concession Entity’s Agreement) shall (1) fully comply with all State and Federal employment reporting requirements for Concession Entity’s or TCM’s concessionaire’s employees applicable to Child Support Assignment Orders; (2) certify that the principal owner(s) of Concession Entity and applicable concessionaires are in compliance with any Wage and Earnings Assignment Orders and Notices of Assignment applicable to them personally; (3) fully comply
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with all lawfully served Wage and Earnings Assignment Orders and Notices of Assignment in accordance with California Family Code Section 5230, et seq.; and (4) maintain such compliance throughout the term of Concession Entity’s Agreement. Pursuant to Section 10.10(b) of the Los Angeles Administrative Code, failure of Concession Entity or an applicable concessionaire to comply with all applicable reporting requirements or to implement lawfully served Wage and Earnings Assignment Orders and Notices of Assignment or the failure of any principal owner(s) of Concession Entity or applicable concessionaires to comply with any Wage and Earnings Assignment Orders and Notices of Assignment applicable to them personally shall constitute a Default of Concession Entity’s Agreement subjecting Concession Entity’s Agreement to termination where such failure shall continue for more than ninety (90) days after notice of such failure to Concession Entity by City (in lieu of anytime for cure provided elsewhere in the Agreement).
20.Business Tax Registration
Concession Entity represents that it has registered its business with the Office of Finance of the City of Los Angeles and has obtained and presently holds from that Office a Business Tax Registration Certificate (“BTRC”), or a Business Tax Exemption Number, required by the City of Los Angeles’ Business Tax Ordinance (Article 1, Chapter 2, Sections 21.00 and following, of the City of Los Angeles’ Municipal Code). Concession Entity shall maintain, or obtain as necessary, all such certificates required of it under said Ordinance and shall not allow any such certificate to be revoked or suspended during the term hereof.
21.Non-Discrimination & Affirmative Action Provisions
Federal Non-Discrimination Provisions. Concession Entity assures that it will comply with pertinent statutes, Executive Orders, and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance. This provision obligates Concession Entity or its transferee for the period during which Federal assistance is extended to the airport program, except where Federal assistance is to provide, or is in the form of personal property or real property or interest therein or structures or improvements thereon. In these cases, the provision obligates the party or any transferee for the longer of the following periods: (a) the period during which the property is used by the sponsor or any transferee for a purpose for which Federal assistance is extended, or for another purpose involving the provision of similar services or benefits; or (b) the period during which the airport sponsor or any transferee retains ownership or possession of the property.
Municipal Non-Discrimination Provisions In Use of Airport. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, religion, national origin, ancestry, sex, sexual orientation, gender identity, gender expression, age, physical handicap, marital status, domestic partner status, or medical condition in connection with Concession Entity’s Agreement, the transfer, use, occupancy, tenure, or enjoyment of the Airport or any operations or activities conducted on the Airport. Nor shall Concession Entity establish or contract any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of contractors, subcontractors, or vendees of the Airport. Any Transfer of Agreement or TCM’s Unit Concession Agreement, which may be permitted under Concession Entity’s Agreement, shall also be subject to all nondiscrimination clauses contained in this Section.
Municipal Non-Discrimination Provisions in Employment. During the term of Concession Entity’s Agreement, Concession Entity agrees and obligates itself in the performance of Concession Entity’s Agreement not to discriminate against any employee or applicant for employment because of the employee’s or applicant’s race, religion, national origin, ancestry, sex, sexual orientation, gender identity, gender expression age, physical handicap, marital status, domestic partner status, or medical condition. Concession Entity shall take affirmative action to ensure that applicants for employment are treated, during the term of Concession Entity’s Agreement, without regard to the aforementioned factors and shall comply with the affirmative action requirements of the Los Angeles Administrative Code, Sections 10.8, et seq., or any successor ordinances or law concerned with discrimination.
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Municipal Equal Employment Practices. If the total payments made under Concession Entity’s Agreement are One Thousand Dollars ($1,000) or more, this provision shall apply. During the performance of Concession Entity’s Agreement, Concession Entity agree to comply with Section 10.8.3 of the Los Angeles Administrative Code (“Equal Employment Practices”), which is incorporated herein by this reference. A copy of Section 10.8.3 has been attached to the Agreement for the convenience of the parties as an Exhibit in the Agreement. By way of specification but not limitation, pursuant to Sections 10.8.3.E and 10.8.3.F of the Los Angeles Administrative Code, the failure of Concession Entity to comply with the Equal Employment Practices provisions of Concession Entity’s Agreement may be deemed to be a material Default of Concession Entity’s Agreement. No such finding shall be made, or penalties assessed except upon a full and fair hearing after notice and an opportunity to be heard have been given to Concession Entity. Upon a finding duly made that Concession Entity has failed to comply with the Equal Employment Practices provisions of Concession Entity’s Agreement, Concession Entity’s Agreement may be forthwith terminated, cancelled, or suspended.
Municipal Affirmative Action Program. If the total payments made under Concession Entity’s Agreement are One Hundred Thousand Dollars ($100,000) or more, this provision shall apply. During the performance of Concession Entity’s Agreement, Concession Entity agree to comply with Section 10.8.4 of the Los Angeles Administrative Code (“Affirmative Action Program”), which is incorporated herein by this reference. A copy of Section 10.8.4 has been attached to the Agreement for the convenience of the parties as an Exhibit in the Agreement. By way of specification but not limitation, pursuant to Sections 10.8.4.E and 10.8.4.F of the Los Angeles Administrative Code, the failure of Concession Entity to comply with the Affirmative Action Program provisions of Concession Entity’s Agreement may be deemed to be a material Default of Concession Entity’s Agreement. No such finding shall be made or penalties assessed except upon a full and fair hearing after notice and an opportunity to be heard have been given to Concession Entity. Upon a finding duly made that Concession Entity has failed to comply with the Affirmative Action Program provisions of Concession Entity’s Agreement, Concession Entity’s Agreement may be forthwith terminated, cancelled, or suspended.
22.Security
General. Concession Entity shall be responsible for fully complying with any and all applicable present or future rules, regulations, restrictions, ordinances, statutes, Laws or orders of any federal, state or local governmental entity regarding airfield security.
FAA. Concession Entity shall be responsible for the maintenance and repair of gates and doors that are located at the Premises or controlled by Concession Entity. Concession Entity shall comply fully with applicable provisions of the Federal Aviation Administration Regulations, 14 CFR, Part 107, including the establishment and implementation of procedures acceptable to Executive Director to control access from the Premises to air operation areas in accordance with the Airport Security Program required by Part 107. Further, Concession Entity shall exercise exclusive security responsibility for the Premises and, if Concession Entity are an air carrier, do so pursuant to Concessionaire’s Federal Aviation Administration approved Air Carrier Standard Security Program used in accordance with 14 CFR, Part 129.
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Doors and Gates. Gates and doors located at the Premises which permit entry into restricted areas at Airport shall be kept locked by Concession Entity at all times when not in use or under Concessionaire’s and TCM’s constant security surveillance. Gate or door malfunctions which permit unauthorized entry into restricted areas shall be reported to Department of Airports’ Operations Bureau without delay and shall be maintained under constant surveillance by Concession Entity until repairs are affected by Concession Entity or City or the gate or door is properly secured.
Penalties. All civil penalties levied by the Federal Aviation Administration for violation of Federal Aviation Regulations pertaining to security gates or doors located at the Premises or otherwise controlled by Concession Entity shall be the sole responsibility of Concession Entity. Concession Entity agree to indemnify, defend and hold City and City Agents harmless from and against any Claims or any federal civil penalties amounts City or any City Agent must pay due to any security violation arising from the use of Concessionaire’s and TCM’s leasehold or the breach of any obligation imposed by this Section. Concession Entity will be billed for the cost of any such penalties paid by City as Additional Rent hereunder, plus the Administrative Fee, to be paid by Concessionaire to City, upon written demand.
Security Arrangements. City shall provide, or cause to be provided, during the term hereof, all proper and appropriate public fire, police and security protection similar to that afforded to others at Airport, and it will issue and enforce rules and regulations with respect thereto for all portions of Airport.
Concession Entity shall have the right, but shall not be obligated, to provide such additional or supplemental private protection as it may desire, but such right, whether or not exercised by Concession Entity, shall not in any way be construed to limit or reduce the obligations of City hereunder.
23.Visual Artists’ Rights Act
Concession Entity shall not install, or cause to be installed, any work of art subject to the Visual Artists’ Rights Act of 1990 (as amended), 17 U.S.C. 106A, et seq., or California Civil Code Section 980, et seq., (“VARA”) on or about the Premises without first obtaining a waiver, in writing, of all rights under VARA, satisfactory to Executive Director and approved as to form and legality by the City Attorney’s Office, from the artist. Said waiver shall be in full compliance with VARA and shall name City as a party for which the waiver applies. Concession Entity are prohibited from installing, or causing to be installed, any piece of artwork covered under VARA on the Premises without the prior, written approval and waiver of Executive Director. Any work of art installed on the Premises without such prior approval and waiver shall be deemed a trespass, removable by City, by and through its Executive Director, upon three (3) days written notice, all costs, expenses, and liability therefore to be borne exclusively by Concession Entity. Concession Entity, in addition to other obligations to indemnify, defend and hold City and City Agents harmless, as more specifically set forth in Concession Entity’s Agreement, shall indemnify, defend and hold City and City Agents harmless from all Claims resulting from Concession Entity’s failure to obtain City’s waiver of VARA and failure to comply with any portion of this provision. The rights afforded City under this provision shall not replace any other rights afforded City in Concession Entity’s Agreement or otherwise, but shall be considered in addition to all its other rights.
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24.Living Wage Ordinance
General Provisions. Concession Entity’s Agreement may be subject to the Living Wage Ordinance (hereinafter referred to as “LWO”) (Section 10.37, et seq., of the Los Angeles Administrative Code, which is incorporated herein by this reference). A copy of Section 10.37 has been attached hereto for the convenience of the parties. The LWO requires that, unless specific exemptions apply, any employees of service contractors who render services that involve an expenditure in excess of Twenty Five Thousand Dollars ($25,000) and a contract term of at least three months are covered by the LWO if any of the following applies: (1) at least some of the services are rendered by employees whose work site is on property owned by City, (2) the services could feasibly be performed by City of Los Angeles employees if the awarding authority had the requisite financial and staffing resources, or (3) the designated administrative agency of the City of Los Angeles has determined in writing that coverage would further the proprietary interests of the City of Los Angeles. Employees covered by the LWO are required to be paid not less than a minimum initial wage rate, as adjusted each year. The LWO also requires that employees be provided with at least twelve (12) compensated days off per year for sick leave, vacation, or personal necessity at the employee’s request, and at least ten (10) additional days per year of uncompensated time pursuant to Section 10.37.2(b). The LWO requires employers to inform employees making less than Twelve Dollars ($12) per hour of their possible right to the federal Earned Income Tax Credit (“EITC”) and to make available the forms required to secure advance EITC payments from the employer pursuant to Section 10.37.4. Concession Entity shall permit access to work sites for authorized City representatives to review the operation, payroll, and related documents, and to provide certified copies of the relevant records upon request by City. Whether or not subject to the LWO, Concession Entity shall not retaliate against any employee claiming noncompliance with the provisions of the LWO, and, in addition, pursuant to Section 10.37.6(c), Concession Entity agree to comply with federal law prohibiting retaliation for union organizing.
Living Wage Coverage Determination. An initial determination has been made that the Concession Entity’s Agreement is a service contract under the LWO, and that it is not exempt from coverage by the LWO. Determinations as to whether Concession Entity’s Agreement and TCM’s Unit Concession Agreements are service contracts covered by the LWO, or whether an employer or employee are exempt from coverage under the LWO are not final, but are subject to review and revision as additional facts are examined or other interpretations of the law are considered. In some circumstances, applications for exemption must be reviewed periodically. City shall notify Concession Entity in writing about any redetermination by City of coverage or exemption status. To the extent Concession Entity claims non-coverage or exemption from the provisions of the LWO, the burden shall be on Concession Entity to prove such non-coverage or exemption.
Compliance; Termination Provisions and Other Remedies: Living Wage Policy, If Concession Entity and its Concessionaires are not initially exempt from the LWO, Concession Entity shall comply, and shall require its Concessionaires to comply, with all of the provisions of the LWO, including payment to employees at the minimum wage rates, effective on the execution date of Concession Entity’s Agreement, and shall execute the Declaration of Compliance Form attached to Concession Entity’s Agreement, as part of an Exhibit in the Agreement, contemporaneously with the execution of Concession Entity’s Agreement. If Concession Entity are initially exempt from the LWO, but later no longer qualify for any exemption, Concession Entity shall, at such time as Concession Entity are no longer exempt, comply with the provisions of the LWO and execute the then currently used Declaration of Compliance Form, or such form as the LWO requires. Under the provisions of Section 10.37.6(c) of the Los Angeles Administrative Code, violation of the LWO shall constitute a material Default of Concession Entity’s Agreement and City shall be entitled to terminate Concession Entity’s Agreement and otherwise pursue legal remedies that may be available, including those set forth in the LWO, if City determines that Concession Entity violated the provisions of the LWO. The procedures and time periods provided in the LWO are in lieu of the procedures and time periods provided elsewhere in Concession Entity’s Agreement. Nothing in Concession Entity’s Agreement shall be construed to extend the time periods or limit the remedies provided in the LWO.
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Subcontractor Compliance. Concession Entity agree to include, in every subcontract or TCM Unit Concession Agreement covering City property, a provision pursuant to which such subcontractor or Concessionaire (A) agrees to comply with the Living Wage Ordinance and the Service Contractor Worker Retention Ordinance with respect to City’s property; (B) agrees not to retaliate against any employee lawfully asserting noncompliance on the part of the subcontractor or Concessionaire with the provisions of either the Living Wage Ordinance or the Service Contractor Worker Retention Ordinance; and (C) agrees and acknowledges that City, as the intended third-party beneficiary of this provision may (i) enforce the Living Wage Ordinance and Service Contractor Worker Retention Ordinance directly against the subcontractor or Concessionaire with respect to City property, and (ii) invoke, directly against the subcontractor or Concessionaire with respect to City property, all the rights and remedies available to City under Section 10.37.5 of the Living Wage Ordinance and Section 10.36.3 of the Service Contractor Worker Retention Ordinance, as same may be amended from time to time.
25.Service Contract Worker Retention Ordinance
Concession Entity’s Agreement may be subject to the Service Contract Worker Retention Ordinance (hereinafter referred to as “SCWRO”) (Section 10.36, et seq., of the Los Angeles Administrative Code), which is incorporated herein by this reference. A copy of Section 10.36 has been attached for the convenience of the parties as an Exhibit in the Agreement. If applicable, Concession Entity must also comply with the SCWRO which requires that, unless specific exemptions apply, all employers under contracts that are primarily for the furnishing of services to or for the City of Los Angeles and that involve an expenditure or receipt in excess of Twenty Five Thousand Dollars ($25,000) and a contract term of at least three (3) months, shall provide retention by a successor Concession Entity for a ninety-day (90-day) transition period of the employees who have been employed for the preceding twelve (12) months or more by the terminated Concession Entity or TCM’s concessionaire, if any, as provided for in the SCWRO. Under the provisions of Section 10.36.3(c) of the Los Angeles Administrative Code, City has the authority, under appropriate circumstances, to terminate Concession Entity’s Agreement and otherwise pursue legal remedies that may be available if City determines that the subject Concession Entity violated the provisions of the SCWRO.
26.Equal Benefits Ordinance
Unless otherwise exempt in accordance with the provisions of the Equal Benefits Ordinance (“EBO”), Concession Entity certifies and represents that Concession Entity will comply with the applicable provisions of EBO Section 10.8.2.1 of the Los Angeles Administrative Code, as amended from time to time. Concession Entity shall not, in any of its operations within the City of Los Angeles or in other locations owned by the City of Los Angeles, including the Airport, discriminate in the provision of Non-ERISA Benefits (as defined below) between employees with domestic partners and employees with spouses, or between the domestic partners and spouses of such employees, where the domestic partnership has been registered with a governmental entity pursuant to state or local law authorizing such registration. As used above, the term “Non-ERISA Benefits” shall mean any and all benefits payable through benefit arrangements generally available to Concessionaire’s and TCM’s employees which are neither “employee welfare benefit plans” nor “employee pension plans”, as those terms are defined in Sections 3(1) and 3(2) of ERISA. Non-ERISA Benefits shall include, but not be limited to, all benefits offered currently or in the future, by Concession Entity to its employees, the spouses of its employees or the domestic partners of its employees, that are not defined as “employee welfare benefit plans” or “employee pension benefit plans”, and, which include any bereavement leave, family and medical leave, and travel discounts provided by Concession Entity to its employees, their spouses and the domestic partners of employees.
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Concession Entity agrees to post the following statement in conspicuous places at its place of business available to employees and applicants for employment: “During the term of a Contract with the City of Los Angeles, Concessionaire will provide equal benefits to employees with spouses and its employees with domestic partners. Additional information a bout the City of Los Angeles’ Equal Benefits Ordinance may be obtained from the Department of Public Works, Bureau of Contract Administration, Office of Contract Compliance at (213) 847-2625.”
The failure of Concession Entity to comply with the EBO will be deemed to be a material breach of Concession Entity’s Agreement by City. If Concession Entity fail to comply with the EBO, City may cancel or terminate such agreement, in whole or in part, and all monies due or to become due under such agreement may be retained by City. City may also pursue any and all other remedies at law or in equity for any breach. Failure to comply with the EBO may be used as evidence against Concession Entity in actions taken pursuant to the provisions of Los Angeles Administrative Code Section 10.40, et seq., Concessionaire Responsibility Ordinance. If City determines that Concession Entity has set up or used its contracting entity for the purpose of evading the intent of the EBO, City may terminate the Agreement.
27.Contractor Responsibility Ordinance
Concession Entity shall comply with the provisions of the Contractor Responsibility Program adopted by the Board. Executive Directives setting forth the rules, regulations, requirements and penalties of the Contractor Responsibility Program and the Pledge of Compliance Form is attached as an Exhibit to these procedures.
28.First Source Hiring Program for Airport Employees
For all work performed at Airport, Concession Entity shall comply, and shall cause its Concessionaires to comply, with all terms and conditions of the First Source Hiring Program (“FSHP”). A copy of the FSHP is attached hereto and incorporated by reference herein as an Exhibit to these procedures.
29.Environmentally Favorable Options
Concession Entity acknowledge for itself and its Concessionaires that its operation of its activities under Concession Entity’s Agreement will be subject to all of City of Los Angeles’ policies, guidelines and requirements regarding environmentally favorable construction, use or operations practices (hereinafter collectively referred to as “City Policies”) as such City Policies may be promulgated, revised and amended from time-to-time.
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30.Municipal Lobbying Ordinance
Concession Entity shall comply with the provisions of the City of Los Angeles Municipal Lobbying Ordinance.
31.Labor Peace Agreement
As a condition precedent to the execution of Concession Entity’s Agreement: (i) such Concession Entity shall have a signed a Labor Peace Agreement (“LPA”) with the labor organizations representing or seeking to represent concession workers at the premises or TCM’s Unit covered by the Unit Concession Agreement; (ii) Concession Entity shall have submitted to City a copy of such LPA, executed by all of the parties to such LPA; and (iii) such LPA shall prohibit such labor organizations and their members from engaging in picketing, work stoppages, boycotts or other economic interference with the business of such Concessionaire at any of the airports operated by City for the duration of the Agreement or TCM’s Unit Concession Agreement.
32.Alternative Fuel Vehicle Requirement Program
Concession Entity shall comply with the provisions of the Alternative Fuel Vehicle Requirement Program. The rules, regulations, and requirements of the Alternative Fuel Vehicle Program are attached as an Exhibit to these procedures and made a material term of Concession Entity’s Agreement.
33.City Events
From time to time, City will host certain global or nationwide events, including but not limited to the World Cup for soccer and the 2028 Summer Olympics (“City Event”), and City has or may enter into agreements in connection therewith that affect concessions at the Airport (“City Event Agreements”). Concession Entity shall (i) cooperate with City, (ii) act consistently with any such City Event Agreements and (iii) cause its sub concessionaires and subcontractors to act consistently with any such City Event Agreements. If any City Event has a material adverse impact on Concession Entity’s rights under the Concession Entity’s Agreement, then upon Concession Entity’s written notice to City, Concession Entity and City shall engage in good faith negotiations to address those impacts.
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Exhibit 1 |
Attachment to |
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Product/Menu/Service Report |
Resolution 28084 |
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(page 22 of 23) |
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Menu Pricing Worksheet |
LAX |
Concessionaire |
Concession Name: |
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Exhibit 2 |
Attachment to |
Market Basket Report |
Resolution 28084 |
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(page 23 of 23) |
Board File |
No. LAA-8613I |
NINTH AMENDMENT TO THE LOS ANGELES INTERNATIONAL AIRPORT
TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT
BETWEEN THE CITY OF LOS ANGELES AND URW AIRPORTS, LLC
This NINTH AMENDMENT TO THE LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT, between the City of Los Angeles and URW AIRPORTS, LLC (“Ninth Amendment”), is made and entered into as of January 1, 2025 (“Effective Date of Ninth Amendment”), at Los Angeles, California by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (hereinafter referred to as “City”), acting by order of and through its Board of Airport Commissioners (hereinafter referred to as “Board”) and URW AIRPORTS, LLC (“TCM”).
RECITALS
WHEREAS, on March 1, 2012, City and TCM entered into the LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT, which is designated as agreement number LAA-8613, as amended by the (i) First Amended and Restated Los Angeles International Airport Food & Beverage Concession Agreement (ii) Second Amendment, (iii) Third Amendment, (iv) Fourth Amendment, (v) Fifth Amendment, (vi) Sixth Amendment, (vii) Seventh Amendment, (viii),and Eighth Amendment thereto (as amended, the “Agreement”) for premises at Los Angeles International Airport; and
WHEREAS, TCM has requested City to approve an open pricing policy; and
WHEREAS the parties wish to amend the Agreement so that certain requirements under the Agreement will hereinafter be set forth in an airport-wide policy for uniform interpretation and application for all similarly-situated concessionaires; and
NOW THEREFORE, the parties hereto, for and in consideration of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties hereto, do mutually agree that the Agreement, BE AMENDED AS FOLLOWS:
Amendment Section 1.The Agreement is hereby amended to add the following section 1.12.3 (d).
“(d) Without limiting the foregoing, TCM shall comply with the Los Angeles International Airport and Van Nuys Airport Concessions Standard Operating Procedures approved by the Board of Airport Commissioners (as such rules may be amended from time), which rules are hereby incorporated herein by reference (“Concession SOP”). TCM’s or any Concessionaire’s breach of such Concession SOP shall be deemed a material breach of this Agreement. If there is any conflict between the Concession SOP and this Agreement, then the terms of the Concession SOP shall prevail.”
For the avoidance of doubt, the Concession SOPs include but are not limited to:
1.Public Address System
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2.Wireless Communication
3.Pricing
4.Utilities
5.Refuse Removal
6.Other Fees & Charges
7.Hours of Operation
8.Deliveries; Access & Coordination
9.Removal of Garbage & Refuse
10.Prohibited Acts
11.Taxes
12.Licenses & Permits
13.Compliance with Laws
14.Airport Operations
15.Pest Control
16.Other Provisions
17.Disabled access
18.Child Support Orders
19.Business tax registration
20.Non-Discrimination & Affirmative Action Provisions
21.Security - General
22.Visual Artists’ Rights Act
23.Living Wage Ordinance General Provisions
24.Service Contract Worker Retention Ordinance
25.Equal Benefits Ordinance
26.Contractor Responsibility Program
27.First Source Hiring Program for Airport Employees
28.Environmentally Favorable Options
29.Municipal Lobbying Ordinance
30.Labor Peace Agreement
31.Alternative Fuel Vehicle Requirement Program
32.City Events.
Amendment Section 2.The Basic Information of the Agreement is hereby amended and restated to conform with the provisions of this Ninth Amendment, to the extent that the provisions in the Basic Information have been modified by the provisions of this Ninth Amendment.
Amendment Section 3.The parties hereby represent and covenant to the other, to the best of their knowledge, without independent inquiry, as follows: (1) neither party is in default in the performance of any of the terms or provisions of the Agreement; (2) neither party has nor claims any setoffs or credits against the payment of Rent or other amounts payable to the other under the Agreement; and (3) the parties shall be entitled to rely on the accuracy of the foregoing representation and covenants, and each party hereby releases the other from any claims relating to the foregoing matters.
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Amendment Section 4.TCM hereby re-certifies all of its representations and warranties under Section 16.42 of the Agreement, including all of its subsections.
Amendment Section 5.Except as specifically provided herein, this Ninth Amendment shall not in any manner alter, change, modify, or affect any of the rights, privileges, duties, or obligations of either of the parties hereto, under, or by reason of said Agreement, as amended.
This Ninth Amendment and any other document necessary for the consummation of the transaction contemplated by this Ninth Amendment may be executed in counterparts, including counterparts that are manually executed and counterparts that are in the form of electronic records and are electronically executed. An electronic signature means a signature that is executed by symbol attached to or logically associated with a record and adopted by a party with the intent to sign such a record, including facsimile or e-mail signatures. All executed counterparts shall constitute one amendment, and each counterpart shall be deemed an original. The parties hereby acknowledge and agree that electronic records and electronic signatures, as well as facsimile signatures, may be used in connection with the execution of this Ninth Amendment and electronic signatures, facsimile signatures or signatures transmitted by electronic mail in so-called PDF format shall be legal and binding and shall have the same full force and effect as if a paper original of this amendment had been delivered that had been signed using a handwritten signature. All parties to this Ninth Amendment (i) agree that an electronic signature, whether digital or encrypted, of a party to this Ninth Amendment is intended to authenticate this writing and to have the same force and effect as a manual signature; (ii) intended to be bound by the signatures (whether original, faxed, or electronic) on any document sent or delivered by facsimile or electronic mail or other electronic means; (iii) are aware that the other party(ies) will rely on such signatures; and, (iv) hereby waive any defenses to the enforcement of the terms of this Ninth Amendment based on the foregoing forms of signature. If this Ninth Amendment has been executed by electronic signature, all parties executing this document are expressly consenting, under the United States Federal Electronic Signatures in Global and National Commerce Act of 2000 (“E-SIGN”) and the California Uniform Electronic Transactions Act (“UETA”) (California Civil Code §1633.1 et seq.), that a signature by fax, e-mail, or other electronic means shall constitute an Electronic Signature to an Electronic Record under both E-SIGN and UETA with respect to this specific transaction.
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IN WITNESS WHEREOF, City has caused this Ninth Amendment to be executed on its behalf by the Chief Executive Officer, or his or her authorized signatory, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
Approved as to form: |
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HYDEE FELDSTEIN SOTO, |
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Deputy/Assistant City Attorney |
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Chief Executive Officer |
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City of Los Angeles, Department of Airports |
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Feb 5, 2025 |
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(SIGNATURE PAGE CONTINUES)
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URW AIRPORTS, LLC |
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URW AIRPORTS, LLC |
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VP, LAX |
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5
Unanimous Written Consent
of the Board of Managers
of
URW AIRPORTS, LLC
The undersigned, being all of the members of the Board of Managers (the “Board”) of URW Airports, LLC, a Delaware limited liability company (the “Company”), and being entitled to vote on the resolution hereinafter set forth as if the same had been submitted at a meeting of the Board of the Company duly called and held for the purpose of acting on such resolution, do hereby consent to the following resolution:
OFFICERS
RESOLVED, that the following officers shall be appointed to serve as officers of the Company as indicated, to serve in accordance with the Operating Agreement and at the direction of the Board:
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 John Kim |
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President and Secretary |
Corinne Ponchard |
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Treasurer |
Trent Revic |
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Chief Financial Officer — Airports |
Dany Nasr |
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Group Director of Airports |
David Yamamoto |
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Senior Vice President — Airports |
Brian Petrow |
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Senior Vice President — Airport Operations |
Brad Tollefson |
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Senior Vice President — Airport Development |
Amy Benson |
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Vice President — Airports |
Eric Farster |
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Vice President — Construction |
Ian Carter |
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Vice President — JFK |
Maral Matossian |
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Vice President — LAX |
Alix James |
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Assistant Secretary |
Charlotte Floyd |
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Assistant Secretary |
Hyura Choi |
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Assistant Secretary |
Laurie Yoo |
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Assistant Secretary |
John Fuleras |
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Assistant Secretary |
Paul Turbow |
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Assistant Secretary |
Lisa Shelley |
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Assistant Secretary |
RESOLVED FURTHER, that all actions heretofore taken by any officer of the Company prior to the date of these resolutions that is otherwise within the authority of these resolutions is hereby ratified, confirmed and approved in all respects.
[Signatures on following page.]
In witness whereof, the undersigned being all members of the Board of Managers of URW Airports, LLC, have executed this written consent as of April 1, 2024.
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John kim |
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Corinne Ponchard |
ACKNOWLEDGEMENT OF GUARANTOR
The undersigned, URW WEA LLC, a Delaware Limited Liability Company not qualified (herein, “Guarantor”), hereby represents, acknowledges, and agrees as follows: (1) Guarantor has reviewed the foregoing NINTH AMENDMENT TO THE LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT BETWEEN THE CITY OF LOS ANGELES AND URW AIRPORTS, LLC (“Ninth Amendment”); (2) Guarantor is the guarantor of TCM’s obligations under the LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT BETWEEN THE CITY OF LOS ANGELES AND URW AIRPORTS, LLC, LAA-8613, dated March 1, 2012 (as amended, “Agreement”), pursuant to that certain Concession Guaranty executed concurrently with the execution of the Agreement (the “Guaranty”); (3) Guarantor approves of TCM’s execution of the Ninth Amendment and agrees with its terms; and (4) the Guaranty is hereby reaffirmed, and the Guaranty is and remains in full force and effect and continues to guarantee the prompt payment and performance by TCM of all of the terms of the Agreement, as amended. This Acknowledgement of Guarantor has been executed as of the date of execution of the Ninth Amendment by TCM.
“GUARANTOR”
URW WEA LLC, a Delaware Limited |
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UNANIMOUS WRITTEN CONSENT OF
THE BOARD OF MANAGERS OF
URW WEA LLC
The undersigned, being all of the members of the Board of Managers (the “Board”) of URW WEA LLC, a Delaware limited liability company (the “Company”), and being entitled to vote on the resolution hereinafter set forth as if the same had been submitted at a meeting of the Board of the Company duly called and held for the purpose of acting on such resolution, do hereby consent to the following resolution:
OFFICERS
RESOLVED, that the following officers shall be appointed to serve as officers of the Company as indicated, to serve in accordance with the Operating Agreement and at the direction of the Board:
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Dominic Lowe |
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Chief Operating Officer |
Aline Taireh |
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Executive Vice President, General Counsel and Secretary |
Christoph Berentzen |
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Chief Financial Officer, Treasurer |
Alison Wais |
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Assistant Secretary |
Hyura Choi |
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Assistant Secretary |
Isabela Gaido |
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Assistant Secretary |
Laurie Yoo |
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Assistant Secretary |
John Kim |
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Assistant Secretary |
Paul Turbow |
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Assistant Secretary |
Lisa Shelley |
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Assistant Secretary |
John Fuleras |
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Assistant Secretary |
Nelson Alemany |
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RESOLVED FURTHER, that all actions heretofore taken by any officer of the Company prior to the date of these resolutions that is otherwise within the authority of these resolutions is hereby ratified, confirmed and approved in all respects.
IN WITNESS WHEREOF, the undersigned, being all of the members of the Board have executed this written consent effective as of December 31, 2021.
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Dominic Lowe |
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Christoph Berentzen |
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Aline Taireh |
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David Zeitoun |
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.19.10
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LAX Van Nuys City of Los Angeles Karen Bass Mayor Board of Airport Commissioners Karim Webb President Matthew M. Johnson Vice President Vanessa Aramayo Courtney La Bau Victor Narro Nicholas P. Roxborough Valeria C. Velasco John Ackerman Chief Executive Officer |
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RESOLUTION NO. 28175 |
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WHEREAS, on recommendation of Management, there were presented for approval, Tenth Amendment to Concession Agreement LAA-8613 and Eighth Amendment to Concession Agreement LAA-8640, both with URW Airports, LLC, to extend their respective terms by four (4) years, require improvements in the amount of $11,000,000 prior to June 2028, and stabilize the Minimum Annual Guarantee rent; and |
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WHEREAS, URW Airports, LLC (URW) has managed concessions in Terminals 1, 2, 3, 6, and the Tom Bradley International Terminal since 2012. Passenger demographics in several terminals have since changed due to airline relocations, and post-pandemic passenger traffic levels have declined overall. In addition, inflationary pressures, including goods and labor costs have grown much more rapidly than was projected when the contracts were executed; and |
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WHEREAS, in response to the 2028 Olympics, Los Angeles World Airports (LAWA) has extended concessions in Terminals 4, 5, 7 and 8 to allow for consistent operations. In September 2024, URW approached LAWA with a proposal to (1) make improvements to concession areas covered by its agreements, refreshing the guest experience in advance of the Olympics; (2) stabilize the Minimum Annual Guarantee (MAG) to support the economics for concessionaires in response to the impacts of inflation and declining passenger traffic; and (3) revise the Management Fee paid to LAWA to be based on its performance instead of a flat fee that increases annually by CPI; and |
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WHEREAS, the Amendments were negotiated to ensure that the concessions in the URW-managed terminals will be upgraded prior to the 2028 Olympics and will be provided enough term for the concessionaires and URW to amortize the new investments.[**] |
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WHEREAS, to provide equity to LAWA, the Terminal Commercial Manager (TCM) Management Fee that LAWA pays to URW will also be revised to remain flat for 36 months before being reinstated July 1, 2028. At that point, the TCM Management Fee will be calculated annually as 1.15% of the prior year’s gross concession sales but will never be less than $2 million; and WHEREAS, to guarantee a continued revenue stream, the Amendments allow for the assignment of concession agreements to LAWA, enabling URW to give term beyond the expiration of the agreement allowing LAWA to retain the concessionaires once approved by the Board of Airport Commissioners (Board). In addition, to protect LAWA’s rights to maintain the exiting concessions program, the Amendments prohibit URW from transferring the agreements without approval by the Board. All other terms of the agreements remain unchanged; and WHEREAS, actions taken on this item by the Board will become final pursuant to the provisions of Los Angeles City Charter Section 606; NOW, THEREFORE, BE IT RESOLVED that the Board of Airport Commissioners adopted the staff report; further adopted staffs determination that this item, involving the issuance of permits, leases, |
1 World Way Los Angeles, California 90045-5803 Mail: P.O.
Resolution No. 28175 |
Box 92216 Los Angeles, California 90009-2216 Telephone: 855 463 5252 Internet: www.lawa.org agreements, gate and space assignments, and renewals, amendments or extensions thereof, or other entitlements granting use of existing airport facilities or its operations, is exempt from the California Environmental Quality Act (CEQA) pursuant to Article III, Class 1 (18)(c) of the Los Angeles City CEQA Guidelines; approved the Tenth Amendment to Concession Agreement LAA-8613 and Eighth Amendment to Concession Agreement LAA-8640, both with URW Airports, LLC, [**] and authorized the Chief Executive Officer, or designee, to execute said Tenth Amendment to Concession Agreement LAA-8613 and Eighth Amendment to Concession Agreement LAA-8640, both with URW Airports, LLC subject to approval by the Los Angeles City Council and approval as to form by the City Attorney.
o0o
I hereby certify that this Resolution No. 28175 |
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Esther N. Alailima Semeatu — Assistant Secretary TENTH AMENDMENT TO THE LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT BETWEEN THE CITY OF LOS ANGELES AND URW AIRPORTS, LLC
BOARD OF AIRPORT COMMISSIONERS
Approved by Los Angeles City Council on July 1, 2025
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Board File
No. LAA-8613J
This TENTH AMENDMENT TO THE LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT, between the City of Los Angeles and URW AIRPORTS, LLC (“Tenth Amendment”), is made and entered into as of July 2, 2025 (“Effective Date of Tenth Amendment”), at Los Angeles, California by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (hereinafter referred to as “City”), acting by order of and through its Board of Airport Commissioners (hereinafter referred to as “Board”) and URW AIRPORTS, LLC (“TCM”).
RECITALS
WHEREAS, on March 1, 2012, City and TCM entered into the LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT, which is designated as agreement number LAA-8613, as amended by the (i) First Amendment (ii) Second Amendment, (iii) Third Amendment, (iv) Fourth Amendment, (v) Fifth Amendment, (vi) Sixth Amendment, (vii) Seventh Amendment, (viii) Eighth Amendment, (ix) and Ninth Amendment thereto (as amended, the “Agreement”) for premises at Los Angeles International Airport; and
WHEREAS, TCM has requested City to grant certain economic relief to support current and future Concessionaires as passenger traffic continues to remain below pre COVID-19 pandemic levels; and
WHEREAS the parties wish to amend the Agreement to, among other things, extend the term and suspend any increase in the Minimum Annual Guarantee in return for TCM investing additional capital in the premises and completing renovations prior to the 2028 Los Angeles Olympics;
WHEREAS, to enable Concessionaires to invest additional capital in their concessions’ premises, the parties wish to allow TCM to enter into concession agreements that expire after the Agreement’s Expiration Date, subject to City’s approval;
WHEREAS, concurrently herewith, TCM and the City are executing that certain Eighth Amendment to The Los Angeles International Airport Terminal Commercial Management Concession Agreement, which is designated as agreement number LAA- 8640 (the “Other Agreement”); and
WHEREAS, all capitalized terms not otherwise defined herein shall have the definitions given such terms in the Agreement.
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NOW THEREFORE, the parties hereto, for and in consideration of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties hereto, do mutually agree that the Agreement, BE AMENDED AS FOLLOWS:
Amendment Section 1. Expiration Date Extension.
The Agreement’s “Expiration Date” is hereby amended to mean June 30, 2038.
Amendment Section 2. Post-Expiration Unit Concession Agreements.
Notwithstanding anything to the contrary in the Agreement, including without limitation Sections 2.3 and 3.3 of the Agreement, a Unit Concession Agreement under the Agreement may have a term that expires after the Expiration Date of the Agreement (“Post-Expiration UCA”), subject to the following conditions:
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City may condition its approval of any Post-Expiration UCA upon a minimum investment amount and completion deadline for work associated with such additional investment. For the avoidance of doubt, the City’s approval of such Post-Expiration UCA shall not by itself be construed as an exercise of its discretion to assume such Post-Expiration UCA pursuant to Amendment Section 2(c) below. |
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Within 10 days of the City’s written request, TCM shall request from the Concessionaire(s) of any Post-Expiration UCA an estoppel certificate in a form approved by the City Attorney. |
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On or before the expiration of the Agreement, City shall have the option to assume such Post-Expiration UCA as follows: City may, subject to all requirements of applicable law for a direct concession agreement (including Board or City Council approval, if required), assume the Post-Expiration UCA by written notice to TCM and Concessionaire, which assumption shall commence upon the expiration or early termination of the Agreement. For purposes of determining whether Board or City Council approval is required, the term of the agreement shall be calculated from the date of the expiration or termination of the Agreement, whichever is earlier. |
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If the CEO exercises his or her discretion to assume the Post-Expiration UCA, then: (i) the Post-Expiration UCA Concessionaire shall recognize and attorn to City as its landlord under the Post-Expiration UCA; (ii) for the term after the Agreement, the form of such Post-Expiration UCA shall be in a form approved by City Attorney for City’s direct concessionaires, and Post-Expiration UCA Concessionaire shall cooperate with City in the execution thereof. |
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If the CEO does not provide a written notice of assumption pursuant to Amendment Section 1(c) before the expiration of the Agreement (or within ninety (90) days from the termination), then the CEO shall be deemed to have declined to exercise his or her discretion to assume the Post-Expiration UCA, and the Post-Expiration UCA shall terminate upon the termination or expiration of the Agreement. |
(f) |
Notwithstanding any assumption by City of a Post-Expiration UCA, TCM shall remain liable for any obligation incurred by TCM under such Post-Expiration UCA. For the avoidance of doubt, City shall not be liable for any obligation incurred by under such Post-Expiration UCA prior to City’s assumption, nor shall City be liable for any obligation incurred by any party other than City. |
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Amendment Section 3. [**]
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Amendment Section 4. [**]
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Amendment Section 5. [**]
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Amendment Section 6. Mid-Term Refurbishments.
Section 7 of the Agreement shall be amended as follows:
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The Minimum Mid-Term Refurbishment Amount under Section 7.6.2 shall not be less than [**] The Minimum Mid-Term Refurbishment Amount shall include all Qualified Investment costs, including design and construction costs incurred (subject to Section 9.4(d) of the Agreement) by TCM, but shall exclude any direct or indirect investment(s) by its Concessionaires. |
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If (i) TCM meets all its obligations under Section 7 of the Agreement, (ii) its total Qualified Investments under this Agreement and the Other Agreement (“Total Qualified Investments”) exceed [**] and (iii) TCM is not under material default under this Agreement and the Other Agreement, then the Expiration Date of the Agreement shall be extended by the CEO by a time period equal to one month for each additional [**] of the Total Qualified Investments in excess of [**] up to a maximum of two (2) years. For purposes of illustration and not limitation, if TCM’s Total Qualified Investments are [**] then the Expiration Date shall be extended by eighteen (18) months for both the Agreement and the Other Agreement. |
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TCM shall provide the Mid-Term Refurbishment Plan to the CEO on or before June 30, 2025. The CEO shall use best efforts to approve such Mid-Term Refurbishment Plan as soon as possible following receipt. |
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The Mid-Term Refurbishment Completion Date in Section 7.6 shall be replaced with January 31, 2028. |
Amendment Section 7. The Agreement is hereby amended to delete Section 10.3 in its entirety.
Amendment Section 8. Transfer Restriction Expiration
Section 14.1 is hereby deleted and replaced with the following Section 14.1:
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“14.1 Transfer Prohibited. TCM shall not, in any manner, directly or indirectly, by operation of law or otherwise, hypothecate, assign, transfer, or encumber this Agreement, the Premises, in whole or in part or any right or privilege appurtenant thereto, or allow any other person (the employees and invitees of TCM and its Concessionaires excepted) to occupy or use the Premises, or any portion thereof (“Transfer”), without the prior written consent of Board, which may be granted, denied or conditioned in Board’s sole discretion. Any written request for consent to a Transfer shall include proposed documentation evidencing such Transfer, name and address of the proposed transferee and the nature and character of the business of the proposed transferee and shall provide current and three (3) years prior financial statements for the proposed transferee, which financial statements shall be audited to the extent available and shall in any event be prepared in accordance with generally accepted accounting principles (collectively, a “Transfer Request”). This Agreement shall not, nor shall any interest therein, be assignable as to the interest of TCM by operation of law without the prior written consent of Board. Notwithstanding anything to the contrary in Sections 14.1 and 14.2, TCM acknowledges that it shall not implement any corporate restructuring, including an equity transfer or a change in control, or any other transfer or reorganization for purpose of circumventing the Transfer restrictions set forth in this Agreement. Any attempted Transfer in violation of this Section shall be void ab initio, shall, at the option of the City, constitute a material Default under this Agreement.”
Amendment Section 9. The Basic Information of the Agreement is hereby amended and restated to conform with the provisions of this Tenth Amendment, to the extent that the provisions in the Basic Information have been modified by the provisions of this Tenth Amendment.
Amendment Section 10. Representations and Warranties. TCM hereby re-certifies all of its representations and warranties under Section 16.42 of the Agreement, including all of its subsections. As a material inducement to City’s entering into this Tenth Amendment, TCM hereby represents, warrants and covenants to City as follows: (1) City is not in default in the performance of City’s obligations under the terms and provisions of the Agreement; (2) City has duly delivered the Premises to TCM in accordance with terms of the Agreement, and there exists no unresolved disputes or claims by TCM in connection with the Agreement (including, without limitation, for items of construction, repair or capital expenditure for which City is liable or obligated to pay for or perform in connection with the Agreement); (3) TCM neither has nor claims any defenses, setoffs or credits against the payment of Rent payable under the Agreement; (4) all known payments due and payable by its Concessionaires, including capital expenditures, rental payments, possessory interest taxes, and other pass-through costs owned to TCM as part of the Unit Concession Agreements, have been paid or otherwise accounted for by TCM; and (5) City shall be entitled to rely on the accuracy of the foregoing representations, warranties and covenants, and TCM hereby releases City from any claims relating to the foregoing matters.
Amendment Section 11. Except as specifically provided herein, this Tenth Amendment shall not in any manner alter, change, modify, or affect any of the rights, privileges, duties, or obligations of either of the parties hereto, under, or by reason of said Agreement, as amended. If there is any conflict between the provisions of this Tenth Amendment and the provisions of the Agreement, the provisions of this Tenth Amendment shall prevail. Whether or not specifically amended by this Tenth Amendment, all terms and provisions of the Agreement are amended to the extent necessary to give effect to the purpose and intent of this Tenth Amendment.
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Amendment Section 12. This Tenth Amendment and any other document necessary for the consummation of the transaction contemplated by this Tenth Amendment may be executed in counterparts, including counterparts that are manually executed and counterparts that are in the form of electronic records and are electronically executed. An electronic signature means a signature that is executed by symbol attached to or logically associated with a record and adopted by a party with the intent to sign such a record, including facsimile or e-mail signatures. All executed counterparts shall constitute one amendment, and each counterpart shall be deemed an original. The parties hereby acknowledge and agree that electronic records and electronic signatures, as well as facsimile signatures, may be used in connection with the execution of this Tenth Amendment and electronic signatures, facsimile signatures or signatures transmitted by electronic mail in so-called PDF format shall be legal and binding and shall have the same full force and effect as if a paper original of this amendment had been delivered that had been signed using a handwritten signature. All parties to this Tenth Amendment (i) agree that an electronic signature, whether digital or encrypted, of a party to this Tenth Amendment is intended to authenticate this writing and to have the same force and effect as a manual signature; (ii) intended to be bound by the signatures (whether original, faxed, or electronic) on any document sent or delivered by facsimile or electronic mail or other electronic means; (iii) are aware that the other party(ies) will rely on such signatures; and, (iv) hereby waive any defenses to the enforcement of the terms of this Tenth Amendment based on the foregoing forms of signature. If this Tenth Amendment has been executed by electronic signature, all parties executing this document are expressly consenting, under the United States Federal Electronic Signatures in Global and National Commerce Act of 2000 (“E-SIGN”) and the California Uniform Electronic Transactions Act (“UETA”) (California Civil Code §1633.1 et seq.), that a signature by fax, e-mail, or other electronic means shall constitute an Electronic Signature to an Electronic Record under both E-SIGN and UETA with respect to this specific transaction.
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IN WITNESS WHEREOF, City has caused this Tenth Amendment to be executed on its behalf by the Chief Executive Officer, or his or her authorized signatory, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
Approved as to form: |
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HYDEE FELDSTEIN SOTO, City Attorney |
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MICHAEL TY (Jul 2, 2025 12:19 PDT) |
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City of Los Angeles, Department of |
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Chief Financial Officer |
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(SIGNATURE PAGE CONTINUES)
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URW AIRPORTS, LLC |
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ACKNOWLEDGEMENT OF GUARANTOR
The undersigned, URW WEA LLC, (predecessor in interest to WESTFIELD AMERICA, INC., a Missouri corporation) (herein, “Guarantor”), hereby represents, acknowledges, and agrees as follows: (1) Guarantor has been and remains the guarantor of TCM’s obligations under the LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT BETWEEN THE CITY OF LOS ANGELES AND URW AIRPORTS, LLC, LAA-8613, dated March 1, 2012, as amended by that (i) First Amended and Restated Los Angeles International Airport Food & Beverage Concession Agreement (ii) Second Amendment, (iii) Third Amendment, (iv) Fourth Amendment, (v) Fifth Amendment, (vi) Sixth Amendment, (vii) Seventh Amendment, (viii) Eighth Amendment, (ix) and Ninth Amendment thereto (as amended, “Agreement”), pursuant to that certain Concession Guaranty executed concurrently with the execution of the Agreement (the “Guaranty”); (2) Guarantor has reviewed the foregoing TENTH AMENDMENT TO THE LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT BETWEEN THE CITY OF LOS ANGELES AND URW AIRPORTS, LLC (“Tenth Amendment”); (3) Guarantor approves of TCM’s execution of the Tenth Amendment and agrees with its terms; and (4) the Guaranty is hereby reaffirmed, and the Guaranty is and remains in full force and effect and continues to guarantee the prompt payment and performance by TCM of all of the terms of the Agreement, as amended. This Acknowledgement of Guarantor has been executed as of the date of execution of the Tenth Amendment by TCM.
“GUARANTOR”
URW WEA LLC
a Delaware limited liability company
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.19.11
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RESOLUTION NO. 28276 |
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LAX Van Nuys City of Los Angeles Karen Bass Board of Airport Commissioners Karim Webb Matthew M. Johnson Vanessa Aramayo John Ackerman |
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WHEREAS, on recommendation of Management, there was presented for approval, Consent to Transfer of Ownership from Westfield Development LLC to ASUR US Commercial Airports LLC covering the terminal commercial management agreements for Terminals 1, 2, 3, 6 and the Tom Bradley International Terminal at Los Angeles International Airport; and WHEREAS, Westfield Development LLC is the sole equity holder of URW Airports Inc., which holds the terminal commercial management (TCM) agreements for Terminals 1, 2, 3, 6 and the Tom Bradley International Terminal (TBIT) at Los Angeles International Airport (LAX); and WHEREAS, the requested action allows ASUR US Commercial Airports LLC (ASUR) to take over all interests associated with the TCM agreements. Following the transfer, ASUR will manage and further develop the concessions programs in Terminals 1, 2, 3, 6 and TBIT, will maintain the current LAX operations team, will commit ASUR to specific requirements agreed upon by ASUR and Los Angeles World Airports to ensure the successful delivery of the transformation plan to be completed prior to the 2028 Olympic and Paralympic Games and continued excellence beyond 2028; and WHEREAS, actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606; NOW, THEREFORE, BE IT RESOLVED that the Board of Airport Commissioners adopted the staff report; further adopted staffs determination that the requested action is exempt from the California Environmental Quality Act (CEQA) pursuant to Article II, Section 2.f of the Los Angeles City CEQA Guidelines; approved the Consent to Transfer of Ownership from Westfield Development LLC to ASUR US Commercial Airports LLC covering the terminal commercial management agreements for Terminals 1, 2, 3, 6 and the Tom Bradley International Terminal at Los Angeles International Airport; and authorized the Chief Executive Officer, or designee, to execute said Consent to Transfer of Ownership from Westfield Development LLC to ASUR US Commercial Airports LLC subject to approval by the Los Angeles City Council and approval as to form by the City Attorney. |
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I hereby certify that this Resolution No. 28276 is true and correct, as adopted by the Board of Airport Commissioners at its Special Meeting held on Thursday, November 13, 2025. |
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Esther N. Alailima Semeatu – Assistant Secretary Approved by the Los Angeles City Council on December 2, 2025 |
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1 World Way Los Angeles California 90045-5803 Mail P.O Box 92216 Los Angeles California 90009-2216 Telephone 855 463 5252 Internet www.lawa.org
Board File
No. LAA-8613K
11th AMENDMENT AND CONSENT TO TRANSFER
(LAA-8613)
THIS 11TH AMENDMENT AND CONSENT TO TRANSFER (this “Consent”) executed this 4th day of December , 2025, by and among the CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS (“City”), acting by order of and through its BOARD OF AIRPORT COMMISSIONERS (“Board”), and URW AIRPORTS, LLC (f/k/a WESTFIELD CONCESSION MANAGEMENT, LLC), a Delaware limited liability company (“TCM”), ASUR US COMMERCIAL AIRPORTS, LLC, a Delaware limited liability company (“Transferee”), and AEROPUERTO DE CANCUN, S.A. DE C.V., a Mexican corporation (“New Guarantor”).
WITNESSETH:
WHEREAS, City, acting by order of and through its Board, and TCM entered into that certain Los Angeles International Airport Terminal Commercial Management Concession Agreement, dated as of March 1, 2012 (as amended, “LAX Lease 1” or “Master Agreement”), conveying certain premises at Los Angeles International Airport and obligating TCM to operate, maintain and sublease said premises; and
WHEREAS, TCM is owned by Westfield Development, Inc., a Delaware corporation (“Transferor”); and
WHEREAS, TCM’s obligation under LAX Lease 1 is guaranteed by URW WEA LLC (f/k/a Westfield America, Inc.) (“Current Guarantor”), pursuant to a Guaranty Agreement dated March 1, 2012 (as amended from time to time, “Guaranty Agreement 1” or “Current Guarantee”); and
WHEREAS, Transferor intends to transfer 100% of its interest in TCM to Transferee (“Transfer”) and has requested consent to such transfer and a release of Current Guarantor of its obligations under the Current Guarantees in exchange for New Guarantee from New Guarantor; and
WHEREAS, the Master Agreement provides that no interest in the ownership of TCM may be transferred without obtaining the prior written consent of City; and
WHEREAS, the Current Guarantees may only be terminated with the prior written consent of City.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1.City hereby consents to the Transfer, subject to the conditions set forth in this Consent. In consideration of City’s consent to the Assignment Agreement, Assignee accepts all terms and conditions in Exhibit B of this Consent (“Assignment Conditions”). The Terminal Commercial Management Agreement is hereby amended, mutatis mutandis, to give full effect to the Assignment Conditions, and any breach of the Assignment Conditions shall be a General Non-Monetary Default of the Master Agreement, subject to cure under Section 11.1.12 of the Master Agreement.
2.Neither this Consent nor the Transfer shall operate to waive, modify, release or in any manner affect TCM’s liability under the Master Agreement. This Consent is subject to receipt by City of guarantees (“New Guarantee”) from New Guarantor in the form attached hereto as Exhibit A and this Consent shall be null and void if the New Guarantee are not received by TCM on or prior to the date that is five (5) business days after the consummation of the Transfer (the “Transfer Date”). Upon receipt of the New Guarantee, the Current Guarantees shall automatically terminate and Current Guarantor shall have no further obligation arising therefrom for any liability arising subsequent to the Transfer Date. No other transfer, assignment or sublease of all or of any part of the rights and obligations of the Master Agreement shall be made by TCM without the prior written approval of City, except as provided in the Master Agreement.
3.Transferee hereby represents and warrants to City that:
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Transferee and New Guarantor have the full power, authority and legal right to execute and deliver, and to perform its obligations under this Consent; |
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this Consent constitutes the legal, valid and binding obligation of Transferee and New Guarantor enforceable in accordance with its terms; |
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the execution, implementation or performance of this Consent will not contravene any other contractual arrangements of Transferee or New Guarantor; |
(d) |
Transferee and New Guarantor are not Prohibited Persons (as such term is defined in the Master Agreement); |
(e) |
Transferee and New Guarantor are financially responsible, of good reputation, and engaged in a business which is in keeping with the standards of City in those respects for the Master Agreement; |
(f) |
Transferee understands and acknowledges the current and future obligations of TCM under the Master Agreement and Transferee shall continue to operate TCM in a commercially reasonable manner, of a quality and consistency at least comparable with its operation over the prior term of the Master Agreement; and |
(g) |
Transferee shall ensure that TCM maintains cash reserves as required under the Master Agreement. |
(h) |
Transferee shall, effective as of the Transfer Date, accept and assume from WEA Finance, LLC and TCM all rights, duties, liabilities and obligations (including any amounts owed) under and in respect of those certain letters of credit identified on Exhibit C attached hereto and, on or no later than five (5) business days after the Transfer Date, deliver to City an executed assignment and assumption agreement with WEA Finance, LLC, TCM and Bank of America, N.A. to that effect. |
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(i) |
No later than five (5) business days after the Transfer Date, Transferee shall provide evidence of its California foreign limited liability name change and City of Los Angeles BTRC effected in connection with the Transfer. |
3.Any notices, demands, request or other communications given or required to be given under this Consent or the Master Agreement shall be effective only if given in writing, sent by registered or certified mail (return receipt requested), by hand-delivery, or by national overnight courier to all or any of the respective parties at the following addresses:
Transferee’s Address: |
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Grupo Aeroportuario del Sureste, SAB de CV |
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Alisos 47A - Piso 4, Bosques de las Lomas |
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Mexico D.F., C.P. 05120 |
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Mexico |
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Attn: Adolfo Castro Rivas |
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With a copy to: |
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Cleary Gottlieb Steen & Hamilton LLP |
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One Liberty Plaza |
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New York, NY 10006 |
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Attention: Chantal E. Kordula |
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City’s Address: |
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Per the Master Agreement |
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New Guarantor’s Address: |
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Grupo Aeroportuario del Sureste, SAB de CV |
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Alisos 47A - Piso 4, Bosques de las Lomas |
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Mexico D.F., C.P. 05120 |
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Mexico |
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Attn: Adolfo Castro Rivas |
or at such other addresses as any of the parties may designate by notice in writing to the other parties hereunder or under the Master Agreement for receipt of future notices.
4.This Consent shall not: (i) modify, waive, impair or affect provisions of the Master Agreement; (ii) waive any breach of the Master Agreement or any rights of City against TCM; or (iii) enlarge or increase the obligations of City under the Master Agreement. Except as specifically provided herein, this Consent shall not in any manner alter, change, modify, or affect any of the rights, privileges, duties, or obligations of either of the parties hereto, under, or by reason of said Agreement, as amended.
5.This Consent shall be binding on the parties hereto and their respective successors and assigns. This Consent may not be amended other than in an instrument in writing signed by all of the parties hereto; provided that the parties hereto are expressly forbidden from amending this Consent to the extent such amendment would modify the substance of this Consent in a
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manner adverse to the Current Guarantor without the Current Guarantor’s prior written consent. The Current Guarantor shall be an express third-party beneficiary of this Consent.
6.This Consent and any claim, dispute or controversy arising out of, under or related to this Consent, the relationship of the parties to this Consent, and/or the interpretation and enforcement of the rights and obligations of the parties to this Consent shall be governed by, interpreted and construed in accordance with the laws of the State of California, without regard to choice of law principles.
7.This Consent may be executed by the parties hereto in separate counterparts, and may be delivered in separate counterparts by electronic (“email”) delivery in “portable document format” (“pdf”), each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of the signature page to this Consent by pdf shall be as effective as delivery of a manually executed counterpart of this Consent and shall be given full legal effect in accordance with applicable laws.
8.In the event of a conflict between the terms hereof and the Master Agreement, this Consent shall control to the extent of any such conflict.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the date first set forth above.
Approved as to form: |
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CITY OF LOS ANGELES |
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HYDEE FELDSTEIN SOTO, |
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By signing below, the signatories attest that |
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City Attorney |
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they have no personal, financial, beneficial, |
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or familial interest in this contract. |
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By: |
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Deputy/Assistant City Attorney |
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By: |
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Chief Executive Officer |
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12/03/2025 |
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City of Los Angeles, Department of Airports |
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By: |
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Chief Financial Officer |
[SIGNATURES CONTINUED ON NEXT PAGE]
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TCM: |
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URW AIRPORTS, LLC, |
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a Delaware limited liability company |
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By: |
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Name: |
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Title: |
President & Secretary |
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[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
TRANSFEREE: |
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ASUR US COMMERCIAL AIRPORTS, LLC, |
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a Delaware limited liability company |
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By: |
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Name: |
Adolfo Castro Rivas |
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Title: |
Chief Executive and Chief Financial Officer |
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[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
NEW GUARANTOR: |
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AEROPUERTO DE CANCUN, S.A. DE C.V., |
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a Mexican corporation |
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By: |
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Name: |
Adolfo Castro Rivas |
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Title: |
Representative |
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EXHIBIT A
GUARANTY AGREEMENT
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(j)[**]
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[signature page follows]
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IN WITNESS WHEREOF, City has caused this Guaranty to be executed on its behalf by Executive Director and Guarantor has caused the same to be executed by its duly authorized officers and its corporate seal to be hereunto affixed, all as of the day and year first above written.
APPROVED AS TO FORM: |
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CITY OF LOS ANGELES |
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Executive Director |
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Department of Airports |
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ATTEST: |
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AEROPUERTO DE CANCUN, S.A. DE C.V. |
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ATTEST: |
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WESTFIELD AMERICA, INC. |
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EXHIBIT B
ASSIGNMENT CONDITIONS
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●
Terminal Commercial Manager (“TCM”) agrees to provide Los Angeles World Airports (“LAWA”) monthly updates regarding progress for each of the items below that are ongoing.
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ASUR agrees to the stated timelines below subject to LAWA’s support and timely approvals (as needed). The timelines below assume approval/response/feedback from LAWA within 10 business days after a request is made.
[**] ●
The parties agree that conditions #3 (Open/Close Monitoring Tech), #5 (Point of Sale Data), #12 (measure queue, regarding tech component), and #13 (re-concepting), require amendments to existing subleases with tenants. Such obligations will need to be included in future amendments with tenants, and LAWA agrees to require such conditions as part of the amendment consent process.
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1 |
Beginning July 1, 2027, if the average of the LAA-8613 (“TCM1”) and LAA- 8640 (“TCM 2”) ASQ Shopping & Dining quarterly scores by Q2 of 2027 (the qualifier) is higher or lower than 4.0 out of a maximum score of 5.0, then the URW Management Fee for that quarter will be increased by 1 percentage point for each 0.1 point delta of such average score from a 4.0 baseline or decreased by 1 percentage point for each 0.1 point delta of such average score from a 4.0 baseline; provided that there shall be no increase in the URW Management Fee if the average ASQ Shopping and Dining score is less than 4.0 points for any of the terminals; provided, however, that not reaching the 4.0 baseline shall not be a breach of the Master Agreements. |
TCM shall implement the following to further drive ASQ scores immediately as of the Transfer Date: - Implement real time feedback QR stations throughout TCM program - Pricing and value for money review on all pricing submissions including review of entire marketplace offer, quality, service and value v price of items - Mystery Shop scores audits, anything below 75% triggers immediate CX retraining on problem areas - Recognition/gifts/ awards for high performing tenants - Store inspections with clear action plans to address deficiencies, communicated to LAWA quarterly - Monitoring online reviews and enabling tenant responses to guest feedback - Full retraining on policies and procedures with each operator, including open/close policy and full enforcement of this. - Align with LAWA on tenant accountability enforcement - Host a Concessionaire meeting with LAWA CDD to align these key focus areas and fast track progress. |
2 |
ASUR to provide proof of financial capability and an investment plan to refresh all assets to Day one appearance within the first year following approval of the Consent to Transfer. Include steps and timeline to complete. |
Tenant and TCM premises shall be in a first-class condition (clean, undamaged, properly maintained, good quality). TCM shall provide a plan (Q2 2026) to have all units, outside of those included in the Midterm Refurbishment Plan, in first-class condition by December 31, 2026. |
3 |
Sensors to measure open/close accuracy and consistency to specified operating hours to be purchased, installed, and integrated to LAWA systems by ASUR/URW. |
TCM shall continue to enforce operating hours and shall increase communication and surveillance around this metric during this procurement and planning phase, including retraining concession operators on expectations and communication protocol. TCM shall continue to submit any modified operating hours to LAWA for approval. Phase 1 (Days 1-60): After the Transfer Date, TCM shall research, and present options to LAWA to ensure integration and implementation is viable and procure once a system is agreed upon. Phase 2 (Days 61-120): TCM internal approvals, create and communicate deployment schedule, reporting tool creation, align on communication and management of metric with LAWA Phase 3 (per deployment schedule): Completion |
4 |
Asur/URW will participate in quarterly discussions regarding digital experience and commit funds to invest in pilot programs. |
TCM shall actively participate in quarterly discussions on digital experience as requested by LAWA and invest in pilot programs. In addition, TCM shall continue to innovate and proactively propose new digital solutions to enhance the overall experience. By Q1 2026, LAWA shall identify the digital committee and communicate objectives and meeting schedule. TCM shall ensure at least one qualified representative is in attendance and make recommendations to further the guest experience / Airport Service Quality (“ASQ”) scores. Each year, LAWA shall communicate updated objectives. |
5 |
ASUR/URW must provide accessibility to all data as requested, such as POS data, queue times, daily sales details, including POS data and ensure LAWA retains ability to access and control customer data as requested. |
TCM shall do the following: Q1 2026 Phase 1: Assessment (Days 1-90) Evaluate current solution viability. Research alternative solutions and deployment requirements, including legal constraints Phase 2: Selection & Alignment (Days 91-150) Procure chosen solution. Provide LAWA with lease language for TCM inclusion in Tenant Agreements, including adoption deadline (based on deployment timeline). Assess total investment cost. Meet with LAWA to confirm final selection and integration feasibility. Phase 3: Deployment Planning (Days 151-220) Develop detailed deployment plan. Align on usage protocols, reporting standards, and communication strategy. Phase 4 (per deployment schedule): Implementation |
6 |
ASUR/URW will partner in employee events to be held with soft openings & employee discounts for opening of new locations and track employee engagement scores to share with LAWA. |
TCM shall continue its focus on employee appreciation and events, including discounts, gifts when they receive high mystery shop scores, annual award and recognition through our customer experience program, employee soft openings and perks for new stores or for special events, and will send out bi-annual employee surveys to gauge employee engagement. TCM shall report results to LAWA leadership, including recommendations on how to improve any issues and continue what is working well. The first survey will be sent March 1,2026. |
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7 |
ASUR/URW must provide an incubator program to be rotated and disbursed through terminals, along with at least one short-term lease by terminal to capitalize on emerging trends. |
TCM shall implement an incubator program, upon approval by LAWA, comprised of a blend of product placement and shop in shops. As the program progresses, TCM shall incorporate other types of platforms for this program, like kiosks, Retail Merchandising Units (“RMU”), and inline units. TCM shall request LAWA’s best efforts to provide favorable commercial terms for these units as the program grows so that TCM can pass along and extend opportunities to tenants / brands for more creative and in-demand partnerships. As the plan evolves and space is needed for these additional unit types, TCM shall work with LAWA to identify space for the units that would best showcase the opportunity. TCM shall do the following: Phase 1 (2026): TCM to have one shop in shop within each terminal Anal by end of year with a plan submitted to LAWA by March 30, 2026. Phase 2 (2027 and beyond): TCM and LAWA to agree upon next phase of this program, including but not limited to growing into kiosks and carts, and rent terms of approved locations. TCM shall provide a concept plan followed by a more detailed incubator plan to LAWA for approval. This plan will be in the Business Operating Plan (“BOP”) submitted by March 30th of each year. |
8 |
ASUR/URW must provide pop up opportunities and/or kiosks during construction with enhanced barricade graphics for improved pax experience/improved ASQ scores, to be timed for the entire length of construction. |
LAWA shall use best efforts to provide TCM with a clear, streamlined process for temporary concessions approvals, and automated retail opportunities specific to temporary continuity of services during this time. The planning for this initiative will be embedded into the ongoing development planning and coordination with LAWA. Q1 2026 -LAWA communicates streamlined process for temporary activation approvals. -Specific barricade graphics and temporary continuity of services opportunities will be submitted to LAWA in a mutually agreed days prior to barricade installation. |
9 |
ASUR/URW must demonstrate the capital investment commitments in each location to advance the terminal theme and include unexpected elements that surprise and delight - include one development of one ‘key experience’ and programming element by terminal and a non food and beverage/retail. A plan must be presented within three months with discussions to follow on implementation timeline. |
Beyond what has already been proposed as part of the Midterm Refurbishment Plan, TCM shall implement at least one key experience by terminal and will present within 3 months as proposed by LAWA. TCM shall also selectively submit ideas for non-premise (reimbursable) to holistically address the terminal experience and will collaborate with LAWA on this process. TCM requires 10-day approval windows to protect schedule. Further, TCM shall explore the potential of retaining Storyland &/or Gensler, along with comparable third-party proposals for competitive tension, towards ensuring vision alignment, speed and synergies. |
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10 |
ASUR/URW to provide opportunities for joint LAWA/branding opportunities e.g., Swatch destination series or Transport for London’s Underground |
LAWA shall use best efforts to carve out specific on-site tenant activation inventory that is separate from any JC Decaux (advertising contract) inventory to increase the appeal and visibility of the partnership, allowing for branding showcase outside of concessions units. TCM shall help to identify these spaces. LAWA shall use best efforts to negotiate free ad packages with ad partner for such branded ventures, at minimum 1 slot for every cycle. |
11 |
ASUR/URW to provide proof of financial capability and an investment plan within three months to accelerate deferred maintenance such as new plumbing, fire and hood systems, DCH compliance, facility improvements to address recurring false fire alarms through complete hood and ventilation assessment. Include the steps and timeline to complete not to exceed one year. |
TCM represents that there are no outstanding issues as of the date this condition was received. TCM shall provide preventative maintenance (“PM”) records of its own performance and tenant PM records to LAWA as required and follows maintenance plans it communicates in BOP and within weekly/monthly meetings with the Commercial Development Team. TCM shall provide ongoing preventative maintenance schedule, outline of PM paperwork submittal process for tenants and TCM, and recommendations for improvements in process, collaboration, or systems. TCM shall provide an update on its capital improvement investments for 2025 and 2026. Additionally, it will voluntarily conduct a comprehensive audit of the program within the next 45 days, with findings to be reported and a resolution plan developed for implementation over the next year. In the past, plumbing and Fire Life Safety (“FLS”) issues have presented challenges due to limited visibility, collaboration, and access to accurate information. To address this more effectively, TCM requires the importance of having knowledgeable personnel in departments in charge of these components who can provide clear, actionable insights—enabling timely and effective resolution of any issues. |
12 |
ASUR/URW will implement initiatives to explicitly measure and address long line wait times at concessions that still feels high-touch and hospitable. |
TCM shall operationally prioritize addressing the queueing issues through a plan to be provided in Q2 of 2026 as described below. TCM shall keep in close communication with LAWA on results of this plan and decide when and how to implement and procure the tech phase II of this approach. TCM shall still include this within the plan below as TCM sees the benefit in the initiative. Within 60 days of the Transfer Date, TCM shall meet with each operator to produce a plan of initiatives to address long lines with clearly identified priority high volume areas/ and a schedule to LAWA. In addition, LAWA shall use best efforts to identify/provide available areas where possible pre-security in terminals and in connector spaces for TCM to install Self Order Kiosks where TCM could run data/electric. Regarding the technology to measure long lines: Phase 1 (Days 1-60): After the Transfer Date, TCM shall research, and present options to LAWA to ensure integration and implementation is viable and procure once a system is agreed upon. Phase 2 (Days 61-120): TCM internal approvals create and communicate deployment schedule, reporting tool creation, align on communication and management of metric with LAWA (busiest hour should be used as the benchmark when conducting analysis). Phase 3 (per deployment schedule): Completion Within 10 days following every calendar month, LAWA will use good faith effort deliver to TCM for each one of the terminals real figures of seats per hour per day, TSA throughput per day and monthly schedule by terminals including real time departures for each flight. |
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13 |
Provide LAWA with the right to require ASUR/URW to re-concept within three to six months following a warning and a month to reconcile when a location is not meeting sales, operating hours and mystery shop scores during an entire quarter |
Within 60 days from approval of the Consent to Transfer, TCM shall develop the appropriate KPIs/metrics that will trigger this re-concept to define what it means to “not meet sales” if factors outside of its control have not played a role in the decline of performance (airline change, EPAX shift). TCM shall also provide LAWA for approval new UCA language to add to tenant agreements to satisfy this condition. TCM shall develop two approaches: one for brand-driven sales decline which will culminate in a re-concept and one for service-driven sales decline that will involve on-site retraining for targeted low scoring areas. All results will be reported to LAWA. TCM shall provide LAWA the Standard Operating Procedure for approval within the Business Operating Plan for each approach (March 2026). |
14 |
Provide an analysis of concession needs, and an explanation for how each proposed concept considers airport trends and customer preferences. Include messaging that shows how LAWA and ASUR/URW market research helped to tailor proposed offerings, highlighting the specific data used and how. |
TCM shall provide a SWOT analysis of each terminal within its annual Business Operating Plan (terminal assessment exhibits) to be submitted on March 30, 2026, that will include the components of this condition. |
15 |
As part of the strategy to bring in new brands ASUR/URW must provide LAWA multiple choices for brand selection and include an analysis demonstrating how upcoming and emerging brands will be capitalized on and the supporting information showing why these brands will be successful in an airport environment including consumer insights and responses. LAWA will retain final design and concept approval |
TCM shall shall have multiple concepts put forward for all new leases unless both parties agree there is a special use case where multiple concepts don’t make sense, like temporary/experiential/incubator concepts. |
16 |
Provide timelines associated with any refurbishment that include dates for design, construction and completion that will be associated with a penalty if not met. |
TCM has provided the detailed timelines requested as part of the Midterm Refurbishment Plan submittals. Recent discussions with LAWA on aligning with thematic direction have created shifts in the schedule and therefore will require recalibration of Midterm Refurbishment schedules which will be submitted in both detail and macro-visual representation by the end of November 2025. Schedules for additional work will be provided alongside respective project plans. With many parties impacting the schedule outcome, TCM and LAWA will work together to outline approval timeframes to help expedite approval times to achieve timely project completion. |
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17 |
ASUR/URW and their concession partner will design the Eataly concept to be unique to Los Angeles and give passengers a sense of place. LAWA will evaluate and approve if the look and feel is unique enough to look unquestionably local. If this is not feasible ASUR/URW will replace Eataly with a Los Angeles based concept that matches the Terminal Theme and/or provides a “food hall” feeling, and that has consumer insight data to back the selection. |
For illustration only and not limitation, TCM leasing has received commitment from the Eataly brand and Operator that they will collaboratively work towards evolving their design for LAX to better align with L.A. sense of place expectations. |
18 |
ASUR/URW must strictly adhere to LAWA’s pricing disclosure policy. |
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19 |
[**] |
ASUR affirms is that it will be executed on TCM Midterm Refurbishment Plan that has been submitted. TCM acknowledge TCM amendments 10 and 8, section 6. |
20 |
Ensure that ASUR understands the timing of the Mid-Teim Refurbishments prior to January 31, 2028, including LAWA’s outstanding approval. |
For clarity, please note that Condition Reference #20 will prevent TCM from meeting the stated deadline if the Eataly design cannot be finalized. TCM has committed to ensuring that LAWA perceives Eataly as ‘unquestionably’ Los Angeles. However, due to scheduling constraints and existing lease obligations, TCM is unable to proceed with the proposed plan b (food hall). Therefore, LAWA shall use best efforts to expedite comments and approvals so that this project can be delivered on time which will be socialized in the updated schedules provided in November of 2025 (condition response, reference #16) |
21 |
Ensure that ASUR confirms that release of all outstanding liens, obligations, or notes to the benefit of TCM for any/all rental payments, possessory interest taxes, and other pass-through costs owed by Concessionaires as part of any UCA as of the Transaction date, as so attested to in the most recent Amendments. |
TCM represents that URW is current on all its obligations. ASUR confirms that release of all outstanding liens, obligations, or notes to the benefit of TCM for any/all rental payments, possessory interest taxes, and other pass-through costs owed by Concessionaires as part of any UCA as of the Transaction date. |
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EXHIBIT C
Letters of Credit
[**]
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.20
LOS ANGELES INTERNATIONAL AIRPORT
TERMINAL COMMERCIAL MANAGEMENT
CONCESSION AGREEMENT
By and between
THE CITY OF LOS ANGELES,
DEPARTMENT OF AIRPORTS
and
WESTFIELD CONCESSION MANAGEMENT, LLC
Dated June 22, 2012
Terminal 1, Terminal 3 and Terminal 6
TCM Concession Agreement-1/3/6 |
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LOS ANGELES INTERNATIONAL AIRPORT
TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT
THIS LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT (this “Agreement“), is made and entered into as of June 22, 2012, by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (“City“), acting by order of and through its Board of Airport Commissioners (“Board“), and WESTFIELD CONCESSION MANAGEMENT, LLC, a Delaware limited liability company (“TCM“), with reference to the following Basic Information and the following Recitals.
BASIC INFORMATION
The following Basic Information (“Basic Information“) contains a summary of certain information contained in this Agreement, and such Basic Information is subject to further explanation or definition elsewhere in this Agreement. The initially-capitalized terms used in this Agreement shall have the respective meanings ascribed to such terms in this Agreement, unless the context otherwise requires. The Basic Information and this Agreement are and shall be construed as a single instrument and are referred to herein as the “Agreement.”
Agreement Date: |
June 22, 2012 |
City: |
THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation, acting by order of and through its Board of Airport Commissioners |
City’s Address: |
Department of Airports 1 World Way Post Office Box 92216 Los Angeles, California 90009-2216 or such other address as may be designated in a written notice from Executive Director in accordance with Section 16.5.1. |
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All notices sent to City under this Agreement shall be sent to the above address, with copies to: Office of City Attorney or to such other address as may be designated in a written notice from Executive Director in accordance with Section 16.5.1. |
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All rent amounts and fees payable to City or LAWA hereunder shall be made payable to: the City of Los Angeles, Department of Airports and shall be wire transferred to City’s bank account as designated in writing by the Executive Director or shall be mailed to: City of Los Angeles, Department of Airports |
TCM Concession Agreement-1/3/6 |
1 |
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Post Office Box 92216 Los Angeles, California 90009-2216 Re: LAX Concession Agreement No. LAA-8640 or to such other address as may be designated in a written notice from Executive Director in accordance with Section 16.5. |
TCM: |
Westfield Concession Management, LLC, a Delaware limited liability company |
TCM’s Address: |
Westfield Concession Management, LLC 11601 Wilshire Blvd., 11th Floor Los Angeles, California 90025 Attention: Office of Legal Counsel All notices sent to TCM under this Agreement shall be sent to the above address, with copies to: Westfield Concession Management, LLC 2730 University Blvd., Suite 900 Wheaton, Maryland 20902 Attention: Office of Legal Counsel Westfield Concession Management, LLC 11601 Wilshire Blvd., 11th Floor Los Angeles, California 90025 Attention: Executive Vice President, Airports Westfield America, Inc. 11601 Wilshire Blvd., 11th Floor Los Angeles, California 90025 Attention: Office of Legal Counsel or such other addresses as may be designated in a written notice from TCM in accordance with Section 16.5. |
Registered Agent: |
TCM’s registered agent for service of process is: CT Corporation System 818 West 7th Street Los Angeles, California 90017 or such other Registered Agent as may be designated in a written notice from TCM in accordance with Section 16.5. |
Effective Date: |
June 22, 2012 |
Expiration Date: |
June 30, 2029, subject to extension as provided in Section 11.1. |
Faithful Performance Guarantee: |
Initially, [**], as such amount may be adjusted in accordance with Section 4.10. |
Guarantor: |
Westfield America, Inc., a Missouri corporation. (See Exhibit “D” for form of Guaranty Agreement, which shall be executed by Guarantor concurrently with the execution of this Agreement by TCM.) |
TCM Concession Agreement-1/3/6 |
2 |
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RECITALS:
A.City is the owner of Los Angeles International Airport (the “Airport”), located in the City of Los Angeles, County of Los Angeles, State of California, and operates said Airport for the promotion and accommodation of air commerce and air transportation between the City of Los Angeles and other local, national and international cities; and
B.City has issued that certain Request For Proposals – Terminal Commercial Manager – Terminals 1, 3 and 6 at Los Angeles International Airport release date June 1, 2011, as supplemented by addenda (the “RFP”); and
C.Pursuant to the RFP, TCM has been selected by City as the terminal commercial manager for the development and operation of certain concession locations within the Airport, all on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing Recitals (which are incorporated herein by this reference), the payment of the fees and charges hereinafter provided, the covenants and conditions hereinafter contained to be kept and performed, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
IPRE-TERM DEVELOPMENT PLANNING.
1.1TCM’s Obligations During Pre-Term Development Phase. Commencing on the date specified as the effective date of this Agreement (the “Effective Date”) in the written notification from the Executive Director of the Department of Airports of the City of Los Angeles (or the person or persons designated by the Executive Director to take a specified action on behalf of the Executive Director) (collectively herein, the “Executive Director”), TCM shall, at TCM’s sole cost and expense and to the full satisfaction of the Executive Director, be responsible for the planning, design and development of the food & beverage, retail, and certain other concession spaces in specified locations in Terminal 1, Terminal 3, Terminal 6, and the Theme Building at the Airport, all as more particularly identified in this Agreement and as more particularly set forth below. Terminal 1, Terminal 3, Terminal 6, and the Theme Building are sometimes individually referred to herein as a “Facility” and are sometimes collectively referred to herein as the “Facilities.”
1.2Concession Location Areas. Exhibits A-1, A-2, A-3, A-4, A-5, A-6 and A-7 attached to this Agreement set forth a description of the areas within the Airport which may be made available to TCM under this Agreement to operate as terminal commercial manager, which areas are referred to herein as “Terminal 1 – Area 11”, “Terminal 1 – Area 12”, “Terminal 3 – Area 13”, “Terminal 3 – Area 14”, “Terminal 6 – Area 15”, “Terminal 6 – Area 16”, and “Theme Building - Area 17”, respectively (said areas are sometimes referred to herein individually as an “Area” and collectively as the “Areas”). The Areas describe those portions of the Airport which may potentially be developed by TCM to contain concession locations contemplated by this Agreement and for which TCM may potentially act as the terminal commercial manager. TCM acknowledges and agrees that each Area only represents the general area within which the potential Premises (as defined in Section 2.1 below) may be developed pursuant to a Definitive Improvement Plan (as defined in Section 1.3 below) prepared by TCM
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and approved by the Executive Director. TCM acknowledges and agrees that this Agreement does not grant any rights to TCM to possess, occupy or otherwise use any of the Areas (or any portion thereof), unless and until a Definitive Improvement Plan has been approved by the Executive Director with respect to such Area identifying with specificity the actual Premises within such Area and the Executive Director has issued a Delivery Notice (as defined in Section 1.10 below) with respect to such Premises. TCM further acknowledges that: (i) certain portions of the Areas are to be developed for the use of Airport-wide Concessionaires as Airport-wide Concessions (as such terms are defined in Section 3.4 below); (ii) such areas reserved for Airport-wide Concessions will not become a part of the Premises, but rather will be separately operated pursuant to concession agreements between City and the respective Airport-wide Concessionaires; and (iii) TCM will have absolutely no rights with respect to any revenues derived by City from such Airport-wide Concessions.
1.2.1TCM Proposals for Additional Concession Space. During the Primary Term of this Agreement, TCM may submit written proposals to the Executive Director from time to time thereafter requesting that City consider making available to TCM unoccupied or otherwise unreserved space within any Facility for incorporation as a Unit into the Premises under this Agreement as additional concession space for a specific proposed Permitted Use (a “TCM Additional Space Proposal”). City shall be under no obligation to consider any such TCM Additional Space Proposal; provided, however, in the event that City decides (in the Executive Director’s sole discretion) to thereafter make such space identified in such TCM Additional Space Proposal available for the specific Permitted Use identified in such TCM Additional Space Proposal, then City agrees to give TCM written notice of City’s intent to so make such additional concession space available for such purpose. Such written notice by City will define such additional concession space and set forth any additional terms and conditions being proposed by the Executive Director with respect to the addition of such concession space as a part of the Premises under this Agreement. Following receipt of such written notice, TCM and the Executive Director shall negotiate in good faith for a period of sixty (60) days to attempt to reach mutually agreeable terms and conditions with respect to such additional concession space. Such 60-day negotiation period may be extended by the Executive Director in his or her sole discretion. In the event that TCM and the Executive Director are unable to reach mutually agreeable terms and conditions within such negotiation period, then TCM shall have no right to such additional concession space, and City shall be free to offer such additional concession space to other concessionaires on such terms and conditions as the Executive Director deems appropriate or to otherwise use such additional concession space for other purposes as the Executive Director deems appropriate. As a condition precedent to its effectiveness, any such agreement regarding such additional concession space shall be set forth in a mutually satisfactory form of written supplement or amendment to this Agreement and shall be subject to obtaining any required approval by the Board. TCM acknowledges that the foregoing right to first negotiation set forth in this Section 1.2.1 applies only to the specific additional concession space and the specific Permitted Use that has been previously proposed by TCM in a written TCM Additional Space Proposal submitted to City. Nothing in this Section 1.2.1 shall be construed to require City to negotiate with TCM or otherwise make available to TCM any additional concession space within any Area or elsewhere in the Facilities that is not the subject of a TCM Addition Space Proposal or that is beyond the permitted scope of a TCM Additional Space Proposal, and TCM acknowledges that City may contract directly with present and future concessionaires for such concession space within the Facilities without negotiating with or
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otherwise offering such concession space to TCM. Without limiting the generality of the foregoing sentence, nothing in this Section 1.2.1 or in any other provision of this Agreement shall be construed to require City to negotiate with TCM or otherwise make available to TCM any additional concession space within any Area or elsewhere in the Facilities that is being made available by City for use as an Airport-wide Concession, and TCM acknowledges that City may contract directly with present and future Airport-wide Concessionaires for concession space within the Facilities without negotiating with or otherwise offering such concession space to TCM.
1.3Definitive Improvement Plan. Within the time and manner set forth in this Agreement, TCM, at TCM’s sole cost and expense, shall prepare and deliver to the Executive Director for review and approval (such approval not to be unreasonably withheld, conditioned or delayed) a definitive and comprehensive plan for the development, implementation and operation of the potential Premises (containing both concession locations and support areas for concession operations, if any) within each of the Areas (herein, the “Definitive Improvement Plan”). Except as otherwise approved by the Executive Director (acting in his or her sole discretion), each Definitive Improvement Plan shall be a logical progression of the Conceptual Plans attached to this Agreement as Exhibit “B” (the “Conceptual Plan”). TCM acknowledges that City (acting through the Executive Director in his or her sole discretion) reserves the right to require changes to the Conceptual Plan based on factors, including, without limitation, the cost and extent of the Initial Non-Premises Improvements contemplated by the Conceptual Plan. Such required changes may include, but are not necessarily limited to, the provision of substitute space within the Facility for the proposed Premises depicted in the Conceptual Plan. Any changes to the Conceptual Plan shall be subject to the approval of the Executive Director (acting in his or her sole discretion). Except as may be expressly agreed in writing by the Executive Director or as otherwise expressly set forth in this Agreement, all design and construction work contemplated by any Definitive Improvement Plan shall be performed by, and at the expense of, TCM. The Conceptual Plan sets forth as to each Area the approximate square footage and location of the Units, TCM Common Areas and TCM Storage Premises (as such terms are defined in Section 2.1 below) that are proposed to become a part of the Premises. Pursuant to the Conceptual Plan, the total minimum square footage of all of the Units within all of the Areas is 69,970, the total approximate square footage of all of the TCM Common Areas within all of the Areas is 12,350, and the total approximate square footage of all of the TCM Storage Premises within all of the Areas is 11,000.
1.4Contents of Definitive Improvement Plan. Each Definitive Improvement Plan for an Area should include, but not necessarily be limited to:
(a)Schematic plans and specifications for the entire Area that delineate those portions of the Area that are proposed to become a part of the Premises of TCM under this Agreement and those portions of the Area that are proposed to be outside of the area of TCM’s proposed Premises under this Agreement. Such schematic plans shall delineate each of the Units within the proposed Premises and identify the type of use for each such Unit and square footage. Such schematic plans shall delineate any areas within the proposed Premises which will not be used as a Unit (i.e., TCM Common Areas and TCM Storage Premises). Such schematic plans shall delineate planned locations for Airport-wide Concessions including type and square footage. Where it is proposed that the Definitive Improvement Plan will be implemented in
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phases, plans for the Area shall be divided into parcels (herein, individually a “Parcel” and collectively the “Parcels”) delineating each phase of development.
(b)Specific design criteria, defined by either Facility or Area, addressing (at a minimum) signage, use of storefront materials, lighting, entry soffit, and neutral pier conditions.
(c)Dimensioned premises and concession outline drawings by Unit indicating available area, demised wall conditions, amount of linear store frontage, and building services brought to the proposed Premises (including electrical, telephone and data, HVAC, chilled/hot water, fire protection, natural gas, domestic water, waste/venting, and grease waste).
(d)Proposed Initial Non-Premises Improvements (as defined in Section 1.8.3 below), including overall scope, design features, architectural enhancements, and integration with critical airport functions, together with a comprehensive review of facility assessments (including electrical, telephone and data, and HVAC). Proposed Initial Non-Premises Improvements may include, but are not limited to, common food court seating areas, other common seating areas and any children’s play area (but excluding any furniture for such common food court seating areas), public circulation improvements, building area alterations, restroom relocation/upgrades, hold room reconfiguration, public/common area HVAC replacements or upgrades, airport terminal directories, and other similar capital improvements reflected in the Definitive Improvement Plan.
(e)Cost estimates for the proposed construction (including construction occurring within the proposed Premises and outside the proposed Premises), including hard costs, soft costs and financing costs. Plan detail and cost estimates shall differentiate between TCM Initial Premises Improvements (as defined in Section 1.8.1 below) to be constructed by TCM at TCM’s cost, and Initial Non-Premises Improvements (as defined in Section 1.8.3). Cost information shall include proposed not-to-exceed dollar amounts for both the TCM Initial Premises Improvements and the Initial Non-Premises Improvements, and may include a contingency for any unforeseen, unknown and other building conditions which exist or may be encountered during the performance of construction by TCM or its Concessionaires (subject to the approval of the Executive Director as part of the DIP Approval (as defined in Section 1.8 below) or subject to the approval of the Executive Director as part of the CIP Approval (as defined in Section 7.4.5 below)). Such contingency may address, without limitation, work required for: (i) unforeseen structural upgrades required to support construction defined in the DIP Approval; (ii) additional capacity for utility services to allow for the development or redevelopment of the concession program in each Facility with all utility connection points (including temporary power) to be within 300 feet of each Area or Parcel; (iii) modifications or additions to the facilities energy management systems and any additional capacity in the mechanical (HVAC) base building systems to properly support the design load for improvements defined in the DIP Approval; (iv) expansion of the primary fire/life safety system to support improvements defined in the DIP Approval for each Facility with connection points accessible to the respective Area or Parcel; (v) testing, identification, remediation and removal of any Pre-Existing Hazardous Materials (as defined in Section 15.2 below); (vi) work required to remedy or comply with existing federal, state, local or municipal code violations or non-compliance which exist in each Facility and are not directly associated with the improvements defined in the DIP Approval; (vii) repairs for pre-existing damages (including leaks) to roofing systems and decks; (viii)
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modifications to security checkpoints or access control systems beyond the scope of work defined in the DIP Approval; and (ix) the installation of common Facility-wide grease interceptor systems for use by all Concessionaires in each Facility provided that TCM uses commercially reasonable efforts to recover such costs from its Concessionaires and remit such recovery to City (but not the installation of any individual grease trap equipment that may be required by applicable Laws to be installed in any Units which shall be at the Concessionaires’ sole expense) (the “TCM Contingencies”). In the event that the Executive Director determines that reasonable justification exists to increase the not-to-exceed dollar amount for the Initial Non-Premises Improvements set forth in a DIP Approval, then the Executive Director will use good faith efforts to recommend for approval to the Board a supplemental DIP Approval containing an adjustment to the not-to-exceed dollar amount for such Initial Non-Premises Improvements (it being understood, however, that such supplemental DIP Approval requires the approval of the Board acting in the Board’s sole and absolute discretion).
(f)Investment commitment by type and amount, including a breakdown of investment by TCM for both Initial Premises Improvements and Initial Non-Premises Improvements. Schematic design documents shall demonstrate TCM’s understanding of the capital requirements for the proposed improvements.
(g)A detailed development schedule showing the phasing and timing plan for development and completion milestones, including design development, City Airport Department Design and Construction approvals, processing and permitting from all authorities having jurisdiction, and construction start and completion dates (including commissioning, close-out and opening).
(h)Plan of TCM financing for all Initial Premises Improvements and Initial Non-Premises Improvements and evidence of required construction bonding and construction completion guarantee for all such improvements.
(i)Phasing plan for any and all interim or temporary concession operations through the completion of construction, including construction barricades and temporary signage, and coordination with incumbent concessionaires.
(j)An updated sales and rent projection by Definitive Improvement Plan for the Area, and a consolidated and updated sales and rent projection for any other currently proposed or previously approved Definitive Improvement Plan in all Areas.
(k)The plans for the coordination of the placement and development of spaces needed for Airport-wide Concessions.
(l)Such other information as may be reasonably requested by the Executive Director, either before or after initial submittal of the Definitive Improvement Plan.
1.5Time for Submission of Definitive Improvement Plan. Subject to delays due to events of Force Majeure (as defined below), TCM shall submit to the Executive Director the respective Definitive Improvement Plan for each Area on or before the date set forth below:
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(a)Terminal 6 – Area 15. The Definitive Improvement Plan for Terminal 6 – Area 15 shall be submitted to the Executive Director within [**] immediately following the Effective Date.
(b)Terminal 6 – Area 16. The Definitive Improvement Plan for Terminal 6 – Area 16 shall be submitted to the Executive Director within [**] immediately following the Effective Date.
(c)All Other Areas. The Definitive Improvement Plan for each of Terminal 1 – Area 11, Terminal 1 – Area 12, Terminal 3 – Area 13, Terminal 3 – Area 14, and Theme Building – Area 17 shall be submitted to the Executive Director within [**] immediately following the Effective Date.
In the event that TCM fails to deliver any Definitive Improvement Plan for any Area within the time set forth above and such failure shall not be due to events of Force Majeure, then TCM shall have no further right to submit a Definitive Improvement Plan with respect to such Area, and such Area shall no longer be subject to the terms of this Agreement (and TCM shall have no right to act as terminal commercial manager with respect to such Area). The Executive Director may, in the Executive Director’s sole discretion, extend the time for delivery of any Definitive Improvement Plan. For purposes of this Agreement, the term “Force Majeure” shall mean, in relation to the conditions that may cause a party to be temporarily, partially or wholly prevented from performing its obligations to the other party under this Agreement and not for any other purpose or for any benefit of any third party: any event beyond the reasonable control of the party claiming it, including, but not limited to, embargoes, shortages of material, acts of God, acts of public enemy (such as war, (declared or undeclared), invasion, insurrection, terrorism, riots, rebellion or sabotage), acts of a governmental authority (such as the United States Department Of Transportation, the United States Federal Aviation Administration, the United States Transportation Security Administration, the United States Environmental Protection Agency and defense authorities), fires, floods, earthquakes, hurricanes, tornadoes and other extreme weather conditions; provided, however, that strikes, boycotts, lockouts, labor disputes, labor disruptions, work stoppages or slowdowns shall not be considered an event of Force Majeure. The term Force Majeure includes delays caused by governmental agencies in the processing of applicable building and safety permits but only to the extent that such processing time actually exceeds the normal and reasonable processing time period for such governmental agency permit; provided, however, that any delays caused by TCM or its Concessionaires in the processing of such permits (such as TCM’s or its Concessionaire’s failure to submit complete applications for such permits) shall not be considered a basis for a claim of Force Majeure by TCM. Any lack of funds shall not be deemed to be a cause beyond the control of a party. If TCM shall claim a delay due to Force Majeure, TCM must notify City in writing within five (5) business days of the first occurrence of any claimed event of Force Majeure. Such notice must specify in reasonable detail the cause or basis for claiming Force Majeure and the anticipated delay in TCM’s performance to the extent such anticipated delay is known to TCM at the time such notice to City is required. If TCM fails to provide such notice within said five (5) business day period, then no Force Majeure delay shall be deemed to have occurred. Delays due to events of Force Majeure shall only be recognized to the extent that such event actually delays the performance by such party and cannot otherwise be mitigated using commercially reasonable efforts.
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1.6Response to Comments by the Executive Director. The Executive Director shall use reasonable efforts to respond to the submission of a Definitive Improvement Plan within ten (10) business days following receipt from TCM. TCM shall, within ten (10) business days following receipt from the Executive Director of any requested revisions to or comments regarding deficiencies of the Definitive Improvement Plan, respond to the Executive Director with a revised or supplemental Definitive Improvement Plan which addresses such requested revisions, comments or deficiencies. Subject to the Executive Director’s right to require changes to the Conceptual Plan (in his or her sole discretion), any requested revisions or comments by the Executive Director will not be unreasonable. The Executive Director shall use reasonable efforts to respond to any resubmission or supplement to a Definitive Improvement Plan within five (5) business days following receipt. If the Executive Director shall fail to respond to any submission or resubmission of a Definitive Improvement Plan within the specific time periods set forth in this Section 1.6, then TCM shall have a day for day extension in which to submit any revised or supplemental Definitive Improvement Plan. The parties also agree to use their respective commercially reasonable efforts to expedite the approval process hereunder with respect to the High Priority Areas so that TCM and TCM’s Concessionaires shall have an adequate time to obtain competitive bids, award contracts and perform their respective construction activities in order to meet the opening dates of such High Priority Areas.
1.7Rejection of Definitive Improvement Plan. In the event that TCM is unable or unwilling to revise or supplement a Definitive Improvement Plan for an Area in the manner required by this Agreement, the Executive Director shall have the right to reject such Definitive Improvement Plan for such Area, which rejection shall be in writing. In the event that the Executive Director rejects any Definitive Improvement Plan for any Area, then following a five (5) business day cure period in which TCM shall have the right to revise or supplement the applicable Definitive Improvement Plan and submit the same to the Executive Director, TCM shall have no further right to submit a Definitive Improvement Plan with respect to such Area, such Area shall no longer be subject to the terms of this Agreement, and TCM shall have no right to act as terminal commercial manager with respect to such Area. TCM acknowledges and agrees that, in the event that the Executive Director rejects any Definitive Improvement Plan following such five (5) business day cure period for any Area in accordance with this Agreement, City shall have no liability or obligation to TCM whatsoever, and TCM shall have no right to act as terminal commercial manager with respect to such Area.
1.8Approval of Definitive Improvement Plan. The Executive Director shall have the right to reasonably condition the approval of any Definitive Improvement Plan on such further actions, undertakings or requirements to be performed by TCM as the Executive Director may deem necessary or appropriate. Each approval issued by the Executive Director approving a Definitive Improvement Plan (a “DIP Approval”) shall be in writing and shall contain the following:
(a)A site plan confirming the size and boundaries of the actual Premises with the Area or Parcels, and the delineation within the Area or Parcels of the non-Premises areas within such Area or Parcels. Subject to the provisions of Section 1.8.8 below, the site plan shall also include the size and boundaries of the individual Units, TCM Common Areas and TCM Storage Premises within the Premises.
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(b)A statement of square footage of the Premises (and each Unit, TCM Common Area and TCM Storage Premises, if any, within such Premises), a statement of the minimum investment amounts for the TCM Initial Premises Improvements and the Initial Non-Premises Improvements, a statement of the proposed general minimum investment amounts by type of Unit for the Concessionaire Initial Premises Improvements, and a statement of the not-to-exceed dollar amounts with regard to the maximum permitted Qualified Investment (as defined in Section 9.3 below) for the TCM Initial Premises Improvements and with regard to the maximum permitted Initial Non-Premises Improvements Acquisition Cost for the Initial Non-Premises Improvements.
(c)Conceptual Approval (as such term is defined in the “LAWA Tenant Project Approval Process” for improvements at the Airport).
(d)The detailed development schedule showing the phasing and timing plan for development and completion milestones, including the completion milestones for turning over possession of the Premises to TCM, or in the event that portions of the Area will be delivered in phases, the completion milestones for turning over possession of the Premises within each Parcel to TCM. Each DIP Approval may include a requirement that TCM deliver to City written notice and confirmation of TCM’s achievement or completion of certain critical milestones (e.g. obtainment of permits) set forth in the development schedule (the “Notice of Readiness”).
(e)The Premises Completion Date (as defined herein) as to the Area or Parcel.
(f)The Non-Premises Completion Date (as defined herein) as to the Area or Parcel.
(g)A description of the condition in which the Area or Parcels (including both non-Premises areas in which TCM will be constructing the Initial Non-Premises Improvements and the Premises areas) will be delivered by City to TCM as of the Delivery Date (as defined in Section 1.10 below). A description of the Initial Non-Premises Improvements and the TCM Initial Premises Improvements. A description of any improvements to be made to the Premises or non-Premises by City, if any.
(h)Such other provisions, including but not limited to Conditions of Approval (as defined herein), that the Executive Director deems necessary or appropriate (in the Executive Director’s reasonable discretion).
Each DIP Approval shall be deemed to be conditioned upon TCM’s compliance with the applicable provisions of this Agreement (including, without limitation, the provisions of Article VII below), regardless of whether such DIP Approval expressly so states. Except as otherwise approved by the Executive Director, all Definitive Improvement Plans shall follow applicable portions of the Design and Construction Handbook located at www.lawa.org/laxdev/ handbook.aspx (such handbook as may be revised from time to time by City is referred to herein as the “Design and Construction Handbook”). Within ten (10) business days following receipt by TCM of any DIP Approval issued by the Executive Director, TCM shall countersign and return a copy of such DIP Approval to City, signifying TCM’s agreement to and acceptance of such DIP Approval (including any Conditions of Approval contained therein). The failure of TCM to so countersign and return a copy of such DIP Approval to City within said ten (10)
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business day period shall render such DIP Approval revocable by the Executive Director upon written notice to TCM at any time thereafter. At such time as a DIP Approval is issued by the Executive Director and accepted by TCM, the terms of such DIP Approval shall be deemed to become a part of this Agreement to the extent not inconsistent or in conflict with the terms and provisions of this Agreement, which shall be deemed to control.
1.8.1TCM Initial Premises Improvements. The term “TCM Initial Premises Improvements” shall mean the initial improvements that are designated specifically in the DIP Approval to be TCM Initial Premises Improvements made by TCM to the Premises that are constructed at TCM’s cost pursuant to a DIP Approval and are approved by the Executive Director following completion as such, such approval not to be unreasonably, withheld, conditioned or delayed.
1.8.2Concessionaire Initial Premises Improvements. The term “Concessionaire Initial Premises Improvements” shall mean the initial improvements that are made by the Concessionaires to the Premises that are constructed at such Concessionaires’ cost pursuant to a CIP Approval and are approved by the Executive Director following completion as such. The term “Initial Premises Improvements” shall mean the TCM Initial Premises Improvements and the Concessionaire Initial Premises Improvements, collectively.
1.8.3Initial Non-Premises Improvements. The term “Initial Non-Premises Improvements” shall mean the initial improvements that are designated specifically in the DIP Approval to be Initial Non-Premises Improvements made by TCM to areas that are either (i) outside of the Premises, or (ii) within TCM Common Areas or other areas of the Premises as specifically approved by the Executive Director (in his or her sole discretion), that are constructed at TCM’s cost pursuant to a DIP Approval and are approved by the Executive Director following completion as such. Improvements required to create or to demise the Premises shall not be considered Initial Non-Premises Improvements, unless otherwise specifically designated as Initial Non-Premises Improvements in any DIP Approval. Notwithstanding the foregoing, trade fixtures, furniture, and furnishings in TCM Common Areas shall not be included in Initial Non-Premises Improvements, but rather will be a part of the Initial Premises Improvements.
1.8.4Premises Completion Date. The term “Premises Completion Date” (which shall be adjusted on a day-for-day basis equal to the number of days of delay due to (i) events of Force Majeure or (ii) reasonable delays due to Pre-Existing Hazardous Materials or TCM Contingencies) shall mean the date specified in the DIP Approval as the date that TCM shall have completed (or caused completion of) the construction of all Initial Premises Improvements to the Premises within the Area or Parcel and shall have caused its Concessionaires to commence regular concession operations in the Units within such Premises.
1.8.5Non-Premises Completion Date. The term “Non-Premises Completion Date” (which shall be adjusted on a day-for-day basis equal to the number of days of delay due to (i) events of Force Majeure or (ii) reasonable delays due to Pre-Existing Hazardous Materials or TCM Contingencies) shall mean the date specified in the DIP Approval as the date that TCM shall have completed the construction of all Initial Non-Premises Improvements to areas within the Area or Parcel.
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1.8.6Conditions of Approval. The term “Conditions of Approval” shall mean any conditions of approval imposed by City on TCM in connection with the approval by the Executive Director of a Definitive Improvement Plan.
1.8.7Initial Non-Premises Improvements – Board Approval. Notwithstanding any other provisions of this Agreement, TCM acknowledges that the obligation of City to acquire or otherwise pay for any Initial Non-Premises Improvements is subject to the approval of the Board acting in its sole and absolute discretion. TCM shall not be required to proceed with the construction of any Initial Non-Premises Improvements, until such approval of the Board has been obtained. The Executive Director shall use good faith efforts to recommend for approval to the Board on a timely basis in order to allow TCM to proceed with its construction activities so that the Initial Non-Premises Improvements may be completed by TCM on the Non-Premises Completion Date. In the event that TCM elects to proceed with the construction of such Initial Non-Premises Improvements without prior approval of the Board, TCM will be doing so at the risk that the Board may not approve the acquisition or other payment by City for such Initial Non-Premises Improvements.
1.8.8Material Increase in Square Footage of Units. In the event that the total square footage of the Units located within any of the Facilities as set forth in the applicable DIP Approval is materially increased from the total square footage of the Units within such Facility as set forth in the Conceptual Plan, then the Executive Director will use good faith efforts to recommend for approval to the Board an equitable adjustment to the financial terms of this Agreement as reasonably determined by the Executive Director following consultation with TCM (it being understood, however, that such adjustment to the financial terms of this Agreement shall require the approval of the Board acting in the Board’s sole and absolute discretion).
1.9Time for Approval of Definitive Improvement Plans. TCM acknowledges and agrees that the timely planning and implementation of the proposed development within Terminal 6 – Area 15 and Terminal 6 – Area 16 (which Areas are sometimes individually referred to herein as a “High Priority Area” and are sometimes collectively referred to herein as the “High Priority Areas”) are of particular importance and urgency. TCM agrees that TCM shall take all necessary and appropriate actions to ensure that DIP Approvals are obtained for such High Priority Areas within [**] immediately following the Effective Date. Provided that City has timely performed its obligations under this Agreement affecting TCM’s performance, TCM agrees that TCM’s failure to take all necessary and appropriate actions to ensure that such DIP Approvals for the High Priority Areas are obtained within [**] immediately following the Effective Date shall constitute a Default by TCM under this Agreement. TCM further acknowledges and agrees that, provided that City has timely performed its obligations under this Agreement affecting TCM’s performance, in the event that TCM fails to obtain DIP Approvals for either Terminal 1 – Area 11, Terminal 1 – Area 12, Terminal 3 – Area 13, Terminal 3 – Area 14, or Theme Building – Area 17 within [**] immediately following the Effective Date, then TCM shall have no further right to submit a Definitive Improvement Plan with respect to such Area, and such Area shall no longer be subject to the terms of this Agreement (and TCM shall have no right to act as terminal commercial manager with respect to such Area). The
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Executive Director may, in the Executive Director’s sole discretion, extend such time for the approval of any Definitive Improvement Plan.
1.10Delivery; Notice of Delivery. The term “Delivery Notice” shall mean the written notice from the Executive Director to TCM informing TCM of the date that City will, pursuant to the DIP Approval, deliver to TCM either (i) the Premises (or portion thereof) within the Area (or Parcel) for purposes of the commencement of the Primary Term (as defined in Section 2.2) as to such Premises, (ii) the non-Premises area within the Area (or Parcel) in which TCM will have a temporary license to construct the Initial Non-Premises Improvements, or (iii) both. The date set forth in the Delivery Notice for the delivery of such Premises and/or non-Premises area, as applicable, is referred to herein as the “Delivery Date”. Provided that TCM uses commercially reasonable efforts to comply with its obligations to timely obtain permits, the Delivery Dates will be no earlier than ten (10) business days after TCM’s receipt of those permits needed by TCM and its Concessionaires to initially commence construction of the Initial Premises Improvements within such Premises or the Initial Non-Premises Improvements within such non-Premises area (as applicable), unless otherwise approved in a DIP Approval and consented to by TCM. Subject to TCM’s compliance with all provisions of the DIP Approval to be complied with prior to the time of delivery, City will deliver such Premises and/or non-Premises area, as applicable, on the Delivery Date set forth in the Delivery Notice, provided, however, the Executive Director shall have the right for good cause to extend the Delivery Date if circumstances warrant in the Executive Director’s sole judgment. TCM agrees to accept delivery of such Premises and/or non-Premises area on the Delivery Date. Within ten (10) business days following the Executive Director’s request, TCM shall execute a Commencement Date Memorandum in the form of Exhibit “C” attached hereto acknowledging the calendar date of the commencement of the Primary Term as to any portion of the Premises delivered to TCM by City pursuant to this Agreement, together with such other reasonable information contained in the Commencement Date Memorandum as the Executive Director may request. TCM’s failure to execute a Commencement Date Memorandum shall not affect the commencement date of the Primary Term for such Premises nor the performance of TCM’s obligations with respect thereto.
1.10.1TCM’s Acknowledgment. With respect to any and all Areas and Premises under this Agreement, TCM hereby acknowledges and agrees that: (a) TCM has been advised to satisfy itself with respect to the condition thereof (including but not limited to physical and environmental condition, the improvements, equipment, and utilities, security, compliance with Laws and Private Restrictions (as defined in Section 5.11.1 below), and the present and future suitability thereof for TCM’s or its Concessionaires’ intended use; (b) TCM shall have independently made such investigation as it deems necessary with reference to such matters; (c) except as specifically set forth in this Agreement (including, without limitation, Section 7.3 and Article 15) or in the applicable DIP Approval, neither City, nor any of City’s agents and representatives, has made any oral or written representations or warranties of any kind whatsoever, express or implied, as to any matters concerning the Facilities, the Areas, or the Premises, including, without limitation, the condition of the Premises and the present and future suitability for TCM’s or its Concessionaires’ intended use; (d) except as otherwise expressly set forth in this Agreement (including, without limitation, Section 7.3 and Article 15) or in the applicable DIP Approval, TCM will take delivery of the Premises from City on an “as is” basis with all defects, whether patent or latent; and (e) except as otherwise expressly set forth in this Agreement (including, without limitation, Section 7.3 and Article 15) or in the applicable DIP
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Approval, any modifications, improvements, additions, or repairs to the Premises and any equipment or systems that are either required to be made in order to make the Premises suitable for TCM’s or its Concessionaires’ intended use or required by Laws to be made to the Premises in connection with TCM’s or its Concessionaires’ use of the Premises shall be constructed or installed by TCM (or its Concessionaires), at TCM’s (or its Concessionaires’, as the case may be) sole cost and expense, and in compliance with Article VII of this Agreement and the applicable DIP Approval. Any report, study, document or other information furnished to TCM by City or by City’s representatives, including, without limitation, the historical sales data regarding concession operations at the Airport, passenger data, any assessment reports regarding the physical condition of space within the Facilities, and other information provided in connection with the RFP (collectively, the “City Information”), is being furnished without representation or warranty by City or its representatives and with the understanding that TCM will not rely on the City Information, but rather TCM will independently verify the accuracy of the statements or other information contained in the City Information. It is the parties’ express understanding and agreement that all such City Information is provided only for TCM’s convenience in facilitating TCM’s own independent investigation and evaluation, and, in doing so, TCM shall rely exclusively on its own independent investigation and evaluation of each and every aspect of the subject matter of this Agreement (including, without limitation, all historical data and the condition of the Areas in which the Premises may be located and their operations) and not on any information or materials supplied by City, except as may be otherwise expressly provided in this Agreement.
1.11Initial Non-Premises Improvements In Excess of Threshold Amount. TCM acknowledges that, regardless of whether or not proposed by TCM in a Definitive Improvement Plan, the Executive Director may require TCM to make certain Initial Non-Premises Improvements as a condition of the DIP Approval; provided, however, the Executive Director will not require Initial Non-Premises Improvements that cost more than [**] in the aggregate within the Areas under this Agreement without the agreement of TCM. If the Executive Director requests TCM to make Initial Non-Premises Improvements that cost in excess of said [**] in the aggregate and the construction of such additional Initial Non-Premises Improvements will delay the estimated completion of construction beyond the estimated construction completion date that would be otherwise applicable in the absence of such additional Initial Non-Premises Improvements, then as a condition of TCM’s agreement under this Section 1.11 to incur such excess costs, TCM may request that the Executive Director agree to an extension of the Expiration Date of the Primary Term for a period of time equal to the estimated number of days of delay in the completion of construction resulting from such additional Initial Non-Premises Improvements. Such agreement by the Executive Director shall be in the Executive Director’s reasonable discretion. Any such agreement to extend the Expiration Date of the Primary Term of this Agreement shall be set forth in a written document executed by the Executive Director on behalf of City and by TCM at the time of the applicable DIP Approval.
1.12Construction of Initial Non-Premises Improvements. TCM shall, at TCM’s cost and expense, design and construct the Initial Non-Premises Improvements described in the applicable DIP Approval, which Initial Non-Premises Improvements shall be subject to acquisition by City as provided in Section 1.13 below. The construction of the Initial Non-Premises Improvements shall commence within ten (10) business days following the Delivery
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Date for such non-Premises area or TCM Common Area or other area within the Premises, as the case may be. Subject to delays caused by events of Force Majeure or the failure of City to have timely performed its obligations under this Agreement affecting TCM’s performance, TCM shall complete the construction of the Initial Non-Premises Improvements on or before the applicable Non-Premises Completion Date. The Executive Director shall have the right (but not the obligation) to extend the Non-Premises Completion Date, which right may be exercised by the Executive Director in his or her sole discretion. During the period prescribed in the applicable DIP Approval, TCM shall have a temporary non-exclusive right of entry to the non-Premises area described in the applicable DIP Approval for the following purposes and no other: to assess such non-Premises area for design and engineering purposes, to facilitate preparation of construction plans, and upon receipt of all necessary and appropriate approvals, to construct the Initial Non-Premises Improvements. TCM acknowledges that such right of entry is a temporary non-exclusive license and does not grant to TCM any property interest in such non-Premises area. In connection with the design and construction of the Initial Non-Premises Improvements and related entry, TCM shall comply with the provisions of Sections 1.12.1 through 1.12.4 below, and TCM’s compliance with said provisions below shall be in addition to (and not in lieu of) TCM’s compliance with all of the other applicable provisions of this Agreement (including, without limitation, Sections 1.10.1, 5.11, 5.12, 7.2, 7.3, 7.7, 7.8, 7.11, 7.12, 7.14, 7.15, 13.2, and 13.3, Article XV, and Article XVI).
1.12.1Competitive Bidding/Proposals. TCM recognizes and accepts that the contractor selection procedures specified in this Section 1.12.1 are intended to promote pricing and responsive and responsible proposals in a fair and reasonable manner. As such, the selection of contractors for the construction of the Initial Non-Premises Improvements shall be based upon competitive bids or proposals as follows:
[**]
1.12.2Warranty. TCM warrants that the design and construction work and services provided in connection with the work shall conform to the highest professional standards pertinent to the respective trade or industry. TCM warrants that all materials and equipment furnished pursuant to this Section 1.12 will be new and of good quality unless otherwise specified, and that all workmanship will be of good quality, free from faults and defects and in conformance with the design documents approved by the City of Los Angeles Department of Building and Safety.
1.12.3Rules and Regulations.
(a)TCM shall have sole responsibility for fully complying with any and all present and future rules, regulations, restrictions, ordinances, statutes, laws and/or orders of any federal, state, and/or local government applicable to the design and construction work. TCM shall be solely responsible for fully complying with any and all applicable present and/or future orders, directives, or conditions issued, given or imposed by the Executive Director which are now in force or which may be hereafter adopted by the Board and/or the Executive Director with respect to the operation of the Airport provided the same are applicable to all tenants and other occupants doing business at the Airport and are enforced by City in a non-discriminatory manner. In addition, TCM agrees to specifically comply with any and all Federal, State, and/or local security regulations,
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including, but not limited to, 14 CFR Parts 107 and 108, regarding unescorted access privileges.
(b)TCM shall comply with the Title VI of the Civil Rights Act of 1964 relating to nondiscrimination. Additionally, FAR Clause 52.203-11 “Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions” is incorporated herein by reference into this Agreement. Contracts awarded by TCM as a result of the work must comply with Federal provisions established by laws and statutes.
(c)TCM and its contractors shall be responsible for all civil penalties assessed as a result of failure to comply with any and all present and future rules, regulations, restrictions, ordinances, statutes, laws and/or orders of any federal, state, and/or local government regarding the work. TCM and its contractors shall hold City harmless and indemnify City for all civil penalties.
1.12.4Independent Contractor. In furnishing the services provided in this Section 1.12, TCM is acting as an independent contractor. TCM is to furnish such services in its own manner and method and is in no respect to be considered an officer, employee, servant or agent of City.
1.13Acquisition of Initial Non-Premises Improvements. Provided that the requisite Board approval has been obtained, upon the completion and acceptance of the Initial Non-Premises Improvements, City shall acquire the Initial Non-Premises Improvements as set forth below in this Section 1.13, and such Initial Non-Premises Improvements shall become the exclusive property of City. As full consideration for the acquisition of the Initial Non-Premises Improvements, City shall pay to TCM an amount equal to the Initial Non-Premises Improvements Acquisition Cost (as defined in Section 1.13.1 below), which amount shall be payable by City, at City’s sole option (as determined by the Executive Director) by means of the one of the following two methods of payment, within sixty (60) days following the Payment Request Completion Date (as defined below): (a) A cash payment to TCM; or (b) the issuance of a rent credit (the “Initial Non-Premises Rent Credit”) to TCM, which rent credit shall be applied against TCM’s obligation to pay the Base Rent for the Premises. Notwithstanding City’s option to select between the two manners of payment as set forth in clauses (a) and (b) of the foregoing sentence, in the event that the Initial Non-Premises Improvements Acquisition Cost for an Area exceeds the following dollar threshold amount for such Area, then such excess shall be paid by City in the manner described in clause (a) of the foregoing sentence (i.e., by cash payment) if so requested by TCM and not by an Initial Non-Premises Rent Credit as described in clause (b) of the foregoing sentence: The dollar threshold for Terminal 1 – Area 11 shall be [**]; the dollar threshold for Terminal 1 – Area 12 shall be [**]; the dollar threshold for Terminal 3 – Area 13 shall be [**]; the dollar threshold for Terminal 3 – Area 14 shall be [**]; the dollar threshold for Terminal 6 – Area 15 shall be [**]; the dollar threshold for Terminal 6 – Area 16 shall be [**]; and the dollar threshold for Theme Building – Area 17 shall be [**]. The Initial Non-Premises Rent Credit shall be issued in equal monthly installments over the period remaining through the end of the Primary Term and shall include annualized accrued interest at [**] percent per annum on the outstanding principal balance that remains unpaid.
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After the issuance of an Initial Non-Premises Rent Credit, City shall have the right to pay TCM the unamortized outstanding principal balance of such costs at any time in lieu of further rent credits. In the event of the Early Termination of this Agreement as the result of an Early Termination Notice (as defined in Section 2.3), City shall pay the unamortized outstanding principal balance of the Initial Non-Premises Rent Credit to TCM within thirty (30) days following the Early Termination Expiration Date (as defined in Section 2.3.1). In the event of a Termination for Convenience under this Agreement as the result of a Convenience Termination Notice, City shall pay the pro-rata share of the unamortized outstanding principal balance of the Initial Non-Premises Rent Credit attributable to the Terminated Premises to TCM within thirty (30) days following the Convenience Termination Date (as such terms are defined in Section 9.1).
1.13.1Initial Non-Premises Improvements Acquisition Cost. The term “Initial Non-Premises Improvements Acquisition Cost” shall mean an amount equal to the actual costs incurred by TCM for the design and construction of the Initial Non-Premises Improvements (which may include up to an additional twenty percent (20%) of total external costs incurred to reimburse TCM for overhead, administrative and project management costs), plus Interest Costs (as defined herein), as verified by the Executive Director, provided, however, that in no event shall the Initial Non-Premises Improvements Acquisition Cost exceed the not-to-exceed dollar amount set forth in the applicable DIP Approval (or as such not-to-exceed amounts may be adjusted in accordance with this Agreement). As used herein, “Interest Costs” shall mean the imputed project interest costs calculated as simple interest at a rate of [**] percent per annum from the date of expenditure by TCM through the date of either (i) payment for the acquisition or (ii) the issuance of the Initial Non-Premises Rent Credit. Notwithstanding the foregoing, any amounts paid to any “Affiliate” of TCM (as defined in Section 9.4) that TCM claims to have incurred in connection with the design or construction of the Initial Non-Premises Improvements may be included as a part of the Initial Non-Premises Improvements Acquisition Cost only (i) to the extent that the amounts paid are fair and are otherwise no less favorable to TCM than would be obtained in a comparable arm’s-length transaction with an unrelated third party or (ii) to the extent otherwise specifically approved in writing by the Executive Director, upon the separate written request of TCM made prior to incurring such costs.
1.13.2Payment Request Completion Date. The term “Payment Request Completion Date” shall mean the date that the following has occurred: (a) TCM has completed the construction of the Initial Non-Premises Improvements in compliance with the terms of this Agreement and the applicable DIP Approval, and (b) TCM has requested payment and provided to City appropriate evidence and documentation of all costs incurred (including, but not limited to, copies of invoices) and proof of payment (including, but not limited to, lien releases) of such actual costs incurred by TCM for the design and construction of the Initial Non-Premises Improvements.
1.13.3Disputed Amounts. The Executive Director shall have the right to review, approve (which approval shall not be unreasonably withheld, conditioned or delayed), and/or dispute the amount of the Initial Non-Premises Improvements Acquisition Cost. To the extent that the Executive Director disputes a portion of the Initial Non-Premises Improvements Acquisition Cost, or there is insufficient documentation with respect thereto, City shall so notify TCM within ten (10) days following the Payment Request Completion Date and shall have the right to withhold any
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disputed amounts until such amounts have been verified and documented to the reasonable satisfaction of the Executive Director. The Executive Director shall also submit to TCM an explanation of the disputed amount or the required documentation (a “Dispute Notice”). TCM shall respond to the Executive Director within thirty (30) days following the Dispute Notice, and the Executive Director and TCM shall meet to resolve any disputes or documentation issues within twenty (20) days of TCM’s response. City is under no obligation to dispute the Initial Non-Premises Improvements Acquisition Cost prior to payment, and the payment of the Initial Non-Premises Improvements Acquisition Cost shall not bind City to the correctness of the Initial Non-Premises Improvements Acquisition Cost.
1.13.4Audit Rights. City may, in the Executive Director’s sole discretion and with reasonable notice to TCM, require TCM to provide access to all records and other information necessary to perform an audit of all or any of the Initial Non-Premises Improvements Acquisition Cost (collectively, the “Auditable Costs”). The expense of any such examination or audit shall be borne by City, provided that if the TCM’s books and records are not made available to City at the Airport or at TCM’s principal place of business within a fifteen (15) mile radius of the Airport, TCM shall reimburse City for the reasonable out-of-pocket costs incurred by City in inspecting TCM’s books and records, including travel, lodging and subsistence costs. City shall have the right to commence such audit at any time up to three (3) years after submission of the last part of any Auditable Costs by TCM to City. City’s right to access such records and information shall continue until any audit so commenced is concluded to the Executive Director’s reasonable satisfaction. TCM shall retain all records and other information necessary to perform such an audit until so concluded. [**]
IIPREMISES; PRIMARY TERM; EARLY TERMINATION.
2.1Premises; Units; TCM Common Areas; TCM Storage Premises. The premises which are the subject of this Agreement are those premises (the “Premises”) that are delineated and approved by the Executive Director in a DIP Approval for an Area and delivered by City to TCM pursuant to a Delivery Notice issued by the Executive Director as provided in Article I above. No potential Premises location shall be considered a part of the Premises, unless and until such potential Premises location is delineated and approved by the Executive Director in a DIP Approval for an Area and turned over to TCM pursuant to a Delivery Notice issued by the Executive Director as provided in Article I above. The Premises will consist of Units, TCM Common Areas, and TCM Storage Premises (all as defined below). For purposes of this Agreement, the term “Unit(s)” means the individual concession spaces within the Premises as delineated in the DIP Approvals. For purposes of this Agreement, the term “TCM Common Area(s)” means areas located within the Premises as delineated in the DIP Approvals as common use areas for the general use and convenience of airline passengers and other users of the Facility in which the TCM Common Areas are located, such as food court seating areas and children’s play areas. For purposes of this Agreement, the term “TCM Storage Premises” means areas located within the Premises as delineated in the DIP Approvals as premises for the storage of equipment, inventory or supplies or for office space (if any). For avoidance of doubt, the parties acknowledge that areas within Units used for storage or office use are not TCM Storage Premises, but rather are considered a part of such Units.
2.1.1Correction to Description of Premises. In the event that the City determines that any description or measurement of any portion(s) of the Premises stated in this
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Agreement or in any DIP Approval is inaccurate (e.g., following review of as-built construction and based on actual field measurements), the Executive Director is authorized to correct such inaccuracy and to approve corresponding adjustments in the terms and provisions of this Agreement based on such corrected descriptions or measurements. Any such adjustment(s) made to the terms and provisions of this Agreement may, with the approval of the Executive Director, be deemed retroactive to such date(s) on which the Executive Director deems approval of such correct measurement(s) to the Premises to be appropriate.
2.2Primary Term. For purposes of this Agreement, the term “Primary Term” shall mean the period of time that TCM shall operate the Premises as the terminal commercial manager hereunder, which period shall commence for any given portion of the Premises on the Delivery Date for such portion of the Premises and shall end as to all portions of the Premises on the Expiration Date (unless the term of this Agreement is sooner terminated in accordance with the provisions of this Agreement). For purposes of this Agreement, the term “Expiration Date” shall mean June 30, 2029, subject to extension by written agreement as provided in Section 1.11 above. No delay in the processing of any Definitive Improvement Plan or delay in the Delivery Date of any portion of the Premises shall extend the Expiration Date. TCM acknowledges and agrees that TCM has absolutely no rights under this Agreement to extend the Primary Term.
2.3[**]
2.4Surrender. TCM agrees that at 11:59 p.m. on the Expiration Date, or on the sooner termination of this Agreement, TCM shall surrender the Premises (including all improvements) to City (a) in good order, condition and repair (normal wear and tear excepted but with all interior walls repaired, any carpets cleaned, and all floors cleaned and waxed and subject to the provisions of Article XII below), and (b) free of any Hazardous Materials that are the responsibility of TCM under the terms of this Agreement. Normal wear and tear shall not include any damage or deterioration that would have been prevented by proper maintenance by TCM (or its Concessionaires) or TCM otherwise performing all of its obligations under this Agreement. On or before the expiration or sooner termination of this Agreement, TCM shall, at the option of City, remove all of TCM’s personal property, all Telecommunications Facilities (as defined in Section 7.13.1) installed in the Premises or elsewhere in the Airport by or on behalf of the TCM (provided the Executive Director may require that such removal shall be performed by a contractor or telecom provider designated by the Executive Director), and TCM’s signage from the Premises, and TCM shall repair any damage caused by such removal. Any of TCM’s personal property not so removed by TCM as required herein shall be deemed abandoned and may be stored, removed, and disposed of by City at TCM’s expense, and TCM waives all Claims against City for any damages resulting from City’s retention and disposition of such property; provided, however, that TCM shall remain liable to City for all costs incurred in storing and disposing of such abandoned property of TCM. All improvements and Alterations shall remain in the Premises as the property of City. On the Expiration Date or earlier termination of this Agreement, all rights and obligations of TCM under this Agreement shall terminate. Notwithstanding anything in the foregoing sentence or elsewhere in this Agreement to the contrary, no expiration or earlier termination of this Agreement shall release TCM from any liability or obligation hereunder, whether of indemnity or otherwise, that either (1) arises or accrues prior to such expiration or earlier termination, (2) results from any acts, omissions, or
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events occurring prior to TCM surrendering the Premises to City, or (3) expressly survives the expiration or earlier termination of this Agreement.
IIITERMINAL COMMERCIAL MANAGER RIGHTS AND DUTIES.
3.1Terminal Commercial Manager. During the Primary Term, TCM shall act as terminal commercial manager of the concession operations within the Premises. As the terminal commercial manager, TCM shall be responsible for ensuring the successful delivery and management of all concession operations within the Premises in a manner consistent with comparable world-class international airports. As the terminal commercial manager, TCM shall select and enter into concession agreements (individually, a “Unit Concession Agreement” and collectively the “Unit Concession Agreements”) with concessionaires (individually, a “Concessionaire” and collectively the “Concessionaires”) for each Unit within the Premises in accordance with the provisions of this Agreement.
3.2Business and Operations Plan. TCM shall prepare a detailed plan for the management of the concession operations within the Premises (the “Business and Operations Plan”), which Business and Operations Plan shall at all times be subject to the approval of the Executive Director as set forth in this Section 3.2, such approval not to be unreasonably withheld, conditioned or delayed. [**] Thereafter, the Business and Operations Plan shall be updated by TCM and submitted to the Executive Director, on an annual basis, no later than [**] of each year continuing through the end of the Primary Term. The updated Business and Operations Plan shall be subject to the approval of the Executive Director each year (which the Executive Director shall provide within thirty (30) days following submission), and any changes to the Business and Operations Plan as so approved by the Executive Director that occur during the year shall be subject to the further approval of the Executive Director in a similar manner. Until such approval is obtained and subject to Section 3.2.1 below, TCM shall continue to operate under the most recent approved Business and Operations Plan. TCM shall manage the concession operations within the Premises substantially in accordance with the Business and Operations Plan as approved by the Executive Director. Notwithstanding anything contained in the Business and Operations Plan, in the event of a conflict between the provisions of this Agreement and the provisions of the Business and Operations Plan, the provisions of this Agreement shall control. The contents of the Business and Operations Plan shall include, but not be limited to, the following:
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3.2.1[**]
3.3Unit Concession Agreements.
3.3.1Approval of Unit Concession Agreements. Each and every Unit Concession Agreement with a Concessionaire shall be subject to the prior written approval of the Executive Director (such approval not to be unreasonably withheld, conditioned or delayed provided that such changes do not impair City’s rights under this Agreement), prior to its execution by TCM. Promptly following the Effective Date, TCM shall develop the form of Unit Concession Agreement and submit such form of Unit Concession Agreement to the Executive Director for review and approval. Any changes to the form of Unit Concession Agreement shall also be subject to the Executive Director’s review and approval, and the Executive Director may require reasonable changes to the form of Unit Concession Agreement from time to time during the term of this Agreement. The specific Permitted Use (as defined in Section 3.4 below) for each Unit within the Premises is subject to the written approval of the Executive Director, such approval not to be unreasonably withheld, conditioned or delayed. The process for obtaining such approvals is to be set forth in the Business and Operations Plan. No Unit Concession Agreement shall be amended, extended or terminated, without the prior written approval of the Executive Director, such approval not to be unreasonably withheld, conditioned or delayed. In connection with any requested approval of any Concessionaire or Unit Concession Agreement, TCM shall provide (or cause to be provided) any and all information as the Executive Director may reasonably request regarding the proposed Concessionaire and Unit Concession Agreement (including, without limitation, financial statements, financial pro forma for operations, measureable performance standards, and proposed offerings, menus and pricing).
3.3.2Additional Terms and Conditions Applicable to Unit Concession Agreements. The following terms and conditions shall apply to any Unit Concession Agreement entered into by TCM and any Concessionaire and shall be deemed included in all Unit Concession Agreements whether or not expressly incorporated therein:
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3.3.3No Right to Engage Directly In Concession Sales or Services. TCM shall have no right to directly engage in the provision of concession sales or services within the Premises (it being understood that all concession locations within the Premises shall be operated by the Concessionaires and not TCM), and no Concessionaire shall be an Affiliate of TCM. TCM covenants that TCM shall promptly disclose to City any and all facts relating to whether any Concessionaire may be considered an Affiliate of TCM.
3.3.4Construction Completion and Oversight. TCM shall be responsible for designing and managing TCM’s construction activities and shall also be responsible for managing TCM’s Concessionaires’ design and construction activities and the timely completion thereof in accordance with the provisions of this Agreement, the applicable DIP Approval, the applicable CIP Approval, and the Business and Operations Plan. TCM shall be responsible to ensure that all Concessionaires are open for business in the time and manner set forth in the applicable DIP Approval. TCM shall be responsible for the coordination of all such design and construction activities with City and other Airport users.
3.3.5Temporary Concession Space During Construction. In order to ensure continuity of services to the traveling public during TCM’s initial development and construction activities as well as any other periods of redevelopment and construction during the term of this Agreement, the Executive Director may (but shall have no obligation to) authorize the use by one or more of TCM’s Concessionaires, on an interim basis, temporary concession space within a Facility, pursuant to a written Right of Entry Agreement between TCM (or its Concessionaire)
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and City. Any such Right of Entry Agreement shall be subject to the approval of the Executive Director (in his or her sole discretion).
3.3.6Interim Unit Concession Agreements. In order to ensure continuity of services to the traveling public during any periods in which TCM or its Concessionaires is involved in development and construction of Units, the Executive Director may (but shall have no obligation to) permit TCM to enter into temporary or interim Unit Concession Agreements with any existing or incumbent concessionaires (i.e., concessionaires engaged in concession operations within the Facilities prior to the commencement of TCM’s activities within such Facilities) or other temporary concessionaires, without requiring TCM to comply with the Concessionaire selection process described in this Agreement and the Business and Operations Plan. No such temporary or interim Unit Concession Agreement shall be for a term of more than [**], unless otherwise approved in writing by the Executive Director, such approval not to be unreasonably withheld, conditioned or delayed.
3.3.7Vacancies. Upon the expiration or other termination of a Unit Concession Agreement, TCM shall promptly solicit a new Concessionaire in accordance with the provisions of this Agreement. Unless extended in writing by the Executive Director (such extension not to be unreasonably withheld), TCM shall propose a new Concessionaire within sixty (60) days and shall thereafter use commercially reasonable efforts to enter into a new Unit Concession Agreement for any vacant Unit within ninety (90) days following the date that City has approved the proposed new Concessionaire. TCM shall, subject to Force Majeure, use its best efforts to cause such Unit to re-open for business within one hundred twenty (120) days following the date that all requisite permits for the work necessary to reopen any such Unit have been issued. During such time as TCM is seeking a permanent replacement Concessionaire, negotiating and documenting the new Unit Concession Agreement, and managing the Concessionaire design and construction process, TCM shall use commercially reasonable efforts to fill any such vacant Unit with a temporary operation (under a modified Unit Concession Agreement structured as a temporary revocable license for a period not to exceed eighteen (18) months). TCM shall notify City in the event that any Unit has remained vacant for more than sixty (60) days. Unless extended in writing by the Executive Director (such extension not to be unreasonably withheld), or if TCM can demonstrate to the reasonable satisfaction of the Executive Director that enplanements or airline service in the vicinity where the vacant Unit is located has been materially impacted to the extent that the vacant Unit is not marketable to potential Concessionaires, in the event that TCM fails to propose a new Concessionaire, fails to enter into a new Unit Concession Agreement or fails to cause the Unit to re-open for business within the respective time periods set forth above, the Executive Director shall have the right to elect on behalf of City to recapture such Unit upon written notice to TCM. In the event of such recapture, such Unit shall no longer be a part of the Premises, TCM shall fulfill its surrender and removal obligation under Section 2.4 above with respect to such Unit, and City shall be free to contract with others for the use of such concession space or otherwise use such concession space as the Executive Director deems appropriate. City shall have no obligation to compensate TCM for the recapture of such Unit (it being understood that the Convenience Termination Payment contemplated in Section 9.2 below shall not be required). However, concurrently with such recapture, the MAG shall be adjusted equitably.
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3.3.8Terminal 3 Potential Redevelopment – Substitute Space. City has advised TCM that, following the development of Terminal 3 – Area 13 and Terminal 3 – Area 14 by TCM pursuant to the DIP Approval process, City may potentially make substantial alterations to Terminal 3 which may result in the closure or relocation of some or all of the Premises within Terminal 3 that were developed by TCM pursuant to the DIP Approval process. The potential exists that, in connection with such alteration of Terminal 3, City may (in the Executive Director’s sole discretion) make substitute concession space available to TCM within Terminal 3. In the event that the Executive Director makes such substitute concession space available, it will be made available on the same terms and conditions as set forth in this Agreement, together with such supplemental or additional terms and conditions as may be mutually agreed upon between TCM and the Executive Director as provided below in this Section 3.3.8 (subject, however, to any required approval by the Board). In the event that the Executive Director makes such substitute concession space available to TCM, the Executive Director will give written notice to TCM defining such substitute concession space and setting forth any additional terms and conditions being proposed by the Executive Director with respect to such substitute concession space. Thereafter, TCM and the Executive Director shall negotiate in good faith for a period of one hundred twenty (120) days to attempt to reach mutually agreeable terms and conditions with respect to such substitute concession space. Such 120-day negotiation period may be extended by the Executive Director in his or her sole discretion. In the event that TCM and the Executive Director are unable to reach mutually agreeable terms and conditions within such negotiation period, then TCM shall have no right to such substitute concession space, and City shall be free to offer by competitive process such concession space to other concessionaires on substantially the same terms and conditions as offered by the Executive Director to TCM or to otherwise use such concession space for other purposes as the Executive Director deems appropriate. In the event that the Executive Director elects to so offer such concession space to other concessionaires, and such competitive process does not result in the selection of another concessionaire for such concession space, then City shall be free to offer by competitive process such concession space on such other terms and conditions as the Executive Director deems appropriate or to otherwise use such concession space for other non-concession purposes as the Executive Director deems appropriate. As a condition precedent to its effectiveness, any such agreement regarding such substitute concession space shall be set forth in a mutually satisfactory form of written supplement or amendment to this Agreement executed by the parties and shall be subject to obtaining any required approval by the Board.
3.3.9Terminal 3 Potential Redevelopment – Temporary MAG Suspension/Expiration Date Extension. In the event that City undertakes a project or authorizes a project to be undertaken by others whose goal is the substantial reconstruction or redevelopment of Terminal 3 and such project (a) requires a duration longer than
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[**] for completion, on a continuous or phased basis, and (b) causes [**] of the airline contact gates in Terminal 3 to be closed or to be non-operational at any point during the project execution (such project being referred to herein as “Qualifying Project”), then the Executive Director will notify TCM of such Qualifying Project and the Executive Director and TCM will meet and confer regarding the anticipated impacts of the Qualifying Project on the Units contained within Terminal 3. Thereafter, the Executive Director may (but shall not be obligated to) implement a written plan (the “MAG Suspension Plan”) pursuant to which the MAG attributable to certain identified Units within Terminal 3 shall be temporarily suspended based on the number of square feet contained within such Units and the then applicable Minimum Per Square Foot MAG Amount (as defined in Section 4.1.2). The MAG Suspension Plan shall identify the specific Units for which the MAG will be suspended, the dollar amount of such suspension (based on the then applicable Minimum Per Square Foot MAG Amount), and the anticipated duration of such suspension. [**] The MAG Suspension Plan shall be subject to review and revision by the Executive Director on a quarterly basis. TCM acknowledges that all determinations with regard to the MAG Suspension Plan (and any revisions thereof) shall be in the Executive Director’s sole but reasonable discretion. TCM shall provide to the Concessionaires operating such Units designated in the MAG Suspension Plan a suspension of such Concessionaires’ minimum annual guaranteed rent under their respective Unit Concession Agreements for the same time period.
[**]
Further, in the event the Qualifying Project materially affects TCM Revenues during the entire time period the Qualifying Project is under construction, the Executive Director may (but shall not be obligated to) recommend to the Board an equitable extension of the Expiration Date of this Agreement (as to all or a portion of the Premises). Any such amendment extending the Expiration Date shall require the approval of the Board acting in the Board’s sole and absolute discretion.
3.4Permitted Uses. The types of permitted uses that TCM may place within the Units located in the Premises (individually, a “Permitted Use”, and collectively, the “Permitted Uses”) include: Food and beverage, convenience retail, specialty retail, business services, common use lounge/club room for use by certain airline passengers and others for a fee (including food/beverage, retail and other business services), personal services, vending machines in locations approved by the Executive Director, non-exclusive Wi-Fi, pay telephones, internet access devices, and such other concession and passenger services as may be approved by the Executive Director from time to time, including any airport-wide classifications. The Permitted Uses for each Unit shall be specific to that Unit, and the Concessionaire for such Unit shall not, without the prior written consent of Executive Director (granted, denied or conditioned in Executive Director’s sole discretion) use that Unit for the Permitted Uses authorized for any other Unit. Except as expressly set forth in Section 5.6 or as directed by Executive Director in writing, the Permitted Uses do not permit either TCM or any Concessionaire to have access to the airfield areas of the Airport. Neither TCM nor any Concessionaire shall engage in any activity within the Airport outside of the Premises for the recruitment or solicitation of business without the prior written consent of Executive Director (granted, denied or conditioned in Executive Director’s sole discretion). Without limiting the generality of this Section,
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Concessionaires shall not operate any Unit under any name or brand, other than a name or brand specifically permitted or required in the Unit Concession Agreement, or as otherwise approved in advance in writing by Executive Director. TCM acknowledges that the provision of Wi-Fi by TCM is non-exclusive, and City may have one or more Wi-Fi providers within the Facilities which may be accessible to users within the Premises.
3.4.1Additional Products or Services. Regardless of whether a particular type of product or service is included within the definition of Permitted Uses above or is contemplated in the Business and Operations Plan, the Executive Director may propose to TCM to include a particular type of product or service to the concession operations conducted within the Premises in order to enhance passenger experience at the Facility (an “Additional Product or Service”). If so proposed by the Executive Director, TCM will use commercially reasonable efforts to incorporate such Additional Product or Service into the concession operations within the Premises.
3.5Airport-wide Concessions. Notwithstanding the foregoing Permitted Uses, TCM acknowledges that City currently has entered into, and in the future may enter into, concession agreements with certain parties (individually, an “Airport-wide Concessionaire” and collectively, the “Airport-wide Concessionaires”) to operate certain concession sales or services on an Airport-wide basis (herein, “Airport-wide Concessions”). As of the Effective Date, Airport-wide Concessions include the following concession uses and activities (collectively, “Airport-wide Concession Uses”): (a) duty free and duty paid sales (duty paid sales will be located within the duty free operator’s premises), (b) advertising, (c) sponsorships, (d) luggage carts, (e) communications media, (f) currency exchange, (g) banking, and (h) ATM services. Except as may be otherwise expressly approved in writing by the Executive Director, Airport-wide Concession Uses are not Permitted Uses. Following the Effective Date, the Executive Director may at any time designate upon written notice to TCM additional concession uses or activities as Airport-wide Concession Uses, and the Executive Director may remove certain concession uses or activities as Airport-wide Concession Uses. TCM shall not permit any Concessionaire to conduct its concession activities in a manner that conflicts with the rights of any Airport-wide Concessionaire, as determined by the Executive Director; provided, however, as to any additional Airport-wide Concession Uses that are designated by the Executive Director following the Effective Date (i.e., Airport-wide Concession Uses that are not included in clauses (a) through (h), inclusive, above), no then existing Concessionaire shall, as the result of such designation, be required to cease conducting any concession activity that was being properly conducted in compliance with this Agreement prior to the date of such designation. Further, in the event that the Executive Director exercises its authority following the Effective Date to designate one or more additional Airport-wide Concession Uses (i.e., Airport-wide Concession Uses that are not included in clauses (a) through (h), inclusive, above) and the implementation of such newly designated Airport-wide Concession Use(s) results in a material decrease in the sales of TCM’s Concessionaires, then the Executive Director will use good faith efforts to recommend for approval to the Board an amendment to this Agreement providing for an equitable adjustment to the MAG as reasonably determined by the Executive Director following consultation with TCM (it being understood, however, that such amendment to adjust the MAG shall require the approval of the Board acting in the Board’s sole and absolute discretion). As a condition to the Executive Director’s recommending such amendment, TCM shall have demonstrated to the reasonable satisfaction of the Executive Director, based on a six
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(6) month review of operations following the implementation of such newly designated Airport-wide Concession Use, that such use is resulting in a material decrease in the sales of TCM’s Concessionaires that cannot be otherwise mitigated by TCM or its Concessionaires through improved retail marketing efforts. TCM shall not enter into a Unit Concession Agreement with an Airport-wide Concessionaire, unless approved by the Executive Director (in his or her sole discretion). In the event that the Executive Director requests that TCM enter into a Unit Concession Agreement with an Airport-wide Concessionaire, TCM shall make commercially reasonable efforts to do so, and any such Unit Concession Agreement shall be subject to the approval of the Executive Director.
3.6General Obligation to Operate. Subject to events of Force Majeure and except for periods of closure specified in writing as a part of an approved Definitive Improvement Plan in connection with construction of the TCM Initial Premises Improvements, the Concessionaire Initial Premises Improvements, or periods of closure in connection with any subsequent approved Alterations and Mid-Term Refurbishment (as defined in Section 7.6) as approved in writing by Executive Director, TCM shall provide through the Concessionaires and the Unit Concession Agreements the full range of concession services for the air traveling public and other persons using the Airport, every day of the Primary Term hereof, without exception. TCM shall not divert, cause or permit to be diverted any business from the Premises and shall take all reasonable measures, in every proper manner, to develop, maintain and increase the business conducted by its Concessionaires under the Unit Concession Agreements. TCM shall ensure that each Concessionaire under its Unit Concession Agreement actively operates each Unit so as to best serve public needs consistent with other world-class international airports.
3.7Right to Promote Products; Restriction on Advertising. Subject to the written approval of the Executive Director or as set forth in the approved Business and Operations Plan, TCM may promote the products and services of its Concessionaires within the Facilities in approved designated areas. TCM and its Concessionaires have no rights (a) to advertise or promote the products of any third party, or (b) to participate in any non-City sponsored marketing income program at the Airport. TCM hereby agrees to indemnify, defend and hold City and City Agents (as defined in Section 5.2.4 below) harmless from and against any Claims (as defined in Section 13.2 below) City may suffer or incur as a result of TCM’s or its Concessionaires’ violation of this Section. TCM hereby assigns to City and agrees to pay to City as Additional Rent hereunder any fees, compensation or other revenue received by TCM, directly or indirectly, from any such advertising or product promotion in violation of this Section. Each Concessionaire may, within such Concessionaire’s Unit, promote the third party products and/or services sold by such Concessionaire in such Unit in accordance with the provisions of Section 5.9 of this Agreement.
3.8Quiet-Enjoyment. Subject to the rights reserved in favor of City under this Agreement, TCM, upon payment of Rent hereunder and upon observing and keeping the conditions and covenants of this Agreement on its part to be observed and kept, shall lawfully and quietly hold, use and enjoy the Premises during the term of this Agreement.
3.9As-Is Condition. Except as expressly otherwise set forth in this Agreement, TCM acknowledges and agrees (on behalf of itself and its Concessionaires) that the Premises (including each Unit within the Premises) is being delivered to and accepted by TCM on the applicable Delivery Date in an “As-Is,” “Where Is” and “With all Faults” condition and without
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any representation, warranty or implied warranty of any kind or nature as to the condition, use or occupancy which may be made thereof and without any improvements or alterations by City. Except as expressly set forth in this Agreement, TCM (on behalf of itself and its Concessionaires) waives, and City disclaims, all warranties of any type or kind whatsoever with respect to the Premises, whether express or implied, including, by way of description but not limitation, those of fitness for a particular purpose and use.
3.10Rights are Not Exclusive. Subject to the rights reserved to City under this Agreement, TCM (on behalf of itself and its Concessionaires) acknowledges and agrees that (a) subject to TCM’s compliance with the terms and conditions of this Agreement, the rights herein granted to TCM are exclusive to TCM within the Premises covered by this Agreement (except as otherwise expressly provided in this Agreement), but non-exclusive at the Airport (including all portions of the Airport and the Facilities that are outside of the Premises); (b) except to the extent expressly provided in Section 1.2.1 and 3.3.8 above, the rights granted to TCM under this Agreement do not include any right to use, occupy or possess any area other than the Premises (including, without limitation, any new leaseable or concession areas in the Facilities or any new terminals or other facilities developed by City in the future); and (c) City reserves the right to enter into terminal management agreements, and/or other concession agreements with other managers, food and beverage concessionaires and other retail concessionaires and service providers at the Airport that may compete with TCM and the Concessionaires, some of which will be located in the Facilities covered by this Agreement.
3.11General Disputes. In the event of a dispute between TCM (or any of its Concessionaires) and any other Airport tenant, manager or concessionaire as to the services to be offered or products to be sold at any Unit, the Premises or other location, TCM shall meet and confer with Executive Director, and Executive Director shall determine (which determination shall be in the Executive Director’s sole discretion) the services to be offered or products to be sold by each, and any decision by Executive Director shall be final and binding upon TCM, its Concessionaires and such other Airport tenant, manager or concessionaire.
3.12No Other Uses. TCM and its Concessionaires shall not use nor permit the Premises (or any Unit within the Premises) to be used for any purpose other than the Permitted Uses with respect to such Unit except with the prior written consent of the Executive Director, nor for any use in violation of any applicable present or future law, ordinance, rule or regulation of any governmental authority, agency, department or officer thereof. In the event that TCM or any Concessionaire desires to use the Premises (or any Unit within the Premises) for any purpose other than the Permitted Use for that Unit, TCM may submit a request to Executive Director, and Executive Director may, in Executive Director’s sole and absolute discretion, approve, deny or condition its approval of such request in writing (and any such written approval shall be approved as to form by the City Attorney). Any such decision by Executive Director shall be final and binding upon TCM and any Concessionaire.
3.13Rules and Regulations. TCM shall comply (and shall through the Unit Concession Agreements require its Concessionaires to comply) with the non-discriminatory rules and regulations of the City and the Department of Airports, along with any modifications, amendments and supplements thereto, as are in effect from time to time, for the orderly and proper operation of the Airport, the Facilities, the Common Areas and the Premises (collectively, the “Rules and Regulations”). City shall not be responsible to TCM, any Concessionaire or any
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other third party for the failure of any other person to observe and abide by any of said Rules and Regulations.
3.14Storage Space. TCM shall only use those areas within the Premises for the storage of equipment, inventory or supplies as are approved by the Executive Director for such use as a part of the DIP Approval and/or the design and construction approval process. The Executive Director may (but shall have no obligation to) make additional storage space available to TCM at the Airport from time to time. In the event the Executive Director makes such additional storage space available to TCM and TCM desires to lease such storage space, City and TCM shall enter a storage space addendum in the form of Exhibit E attached hereto, as such form may be modified from time to time by Executive Director.
3.15Common Areas. Subject to compliance with City’s Rules and Regulations and security requirements, TCM and its Concessionaires shall have the non-exclusive right, in common with others authorized by City, of ingress and egress through all Common Areas (as defined in this Section); provided, however, the Executive Director may, in its sole discretion, and without liability to TCM or any Concessionaire, change the size or location of the Common Areas, including, without limitation, by converting Common Areas to leaseable or other areas, or leaseable areas to Common Areas. City shall use reasonable efforts so as to not prevent access and/or substantially impair access to the Premises in connection with any such changes to the Common Areas. Executive Director may, in Executive Director’s sole discretion, establish and enforce non-discriminatory Rules and Regulations (as defined in Section 3.13 above) concerning the Common Areas, temporarily close portions of the Common Areas for security, maintenance or other purposes, and make changes to the Common Areas including, without limitation, changes in the location of security points, driveways, entrances, exits, parking spaces and the direction and flow of pedestrian and vehicular traffic. For purposes of this Agreement, the term “Common Areas” means all areas and facilities located within the Airport and outside of the Premises, that are designated by the Executive Director from time to time as common use areas for the general use and convenience of concessionaires, tenants and other occupants at the Airport, airline passengers and other visitors to the Airport, such as lobbies, corridors, sidewalks, elevators, escalators, moving sidewalks, parking areas, and facilities, restrooms, pedestrian entrances, driveways, loading zones and roadways. Except for damage caused by TCM or its Concessionaires, neither TCM nor its Concessionaires shall be responsible for the maintenance or repair of any Common Areas located outside of the Premises. For avoidance of doubt, the parties acknowledge that the TCM Common Areas are not a part of the Common Areas as described in this Section 3.15, and TCM’s obligations with respect to the TCM Common Areas are described elsewhere in this Agreement.
3.16Public Address System. City shall have the right, in its sole discretion, to install one (1) or more public address system speakers in each Unit for announcing flight arrivals and departures and other Airport information. TCM and its Concessionaires shall not install any public address, paging, or other similar audio system in the Premises (including any Unit) at any time, without the prior written approval of the Executive Director (in the Executive Director’s sole discretion). Any installation of a music system, audio/video display or television system in the Premises (including any Unit) shall require the prior written approval of the Executive Director, in his or her sole discretion; provided that no such system shall interfere with the City’s public address system.
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3.17Wireless Communications. Without the prior written consent of the Executive Director (in his or her reasonable discretion), TCM and its Concessionaires shall not have any wireless internet system(s) within the Premises (including any Unit). Without the prior written consent of the Executive Director, in his or her reasonable discretion, TCM and its Concessionaires shall not install or use any wireless workstations, access control equipment, wireless internet servers, transceivers, modems or other hardware that transmit or otherwise access radio frequencies. Notwithstanding the prior consent of the Executive Director for the installation of any such system or equipment, the Executive Director shall have the absolute right, upon thirty (30) days’ prior written notice, to require the removal of any such system or equipment (at TCM’s or the Concessionaire’s sole expense) in the event that such system or equipment interferes with any present or future systems or equipment installed by City at the Airport.
3.18Pricing.
3.18.1TCM shall ensure that all Concessionaires shall price their products in accordance with the Airport Pricing Policy. For the purposes of this Agreement, the “Airport Pricing Policy” shall mean establishing prices that are no more than eighteen percent (18%) higher than prices charges by comparable off-Airport businesses located within a twenty-five (25) mile radius of the Airport as more particularly described in the Business and Operations Plan.
3.18.2TCM shall collect and maintain pricing and menu information for each Unit. Upon request by the Executive Director, TCM shall provide such information to City. The Executive Director may conduct City-initiated price comparisons to ensure compliance with the Airport Pricing Policy as the Executive Director considers necessary. TCM shall be given one (1) week to require its Concessionaires to correct any price overage discrepancies raised by the Executive Director with TCM, or to submit written justification for retaining current prices for these items. In response to TCM’s written justifications, the Executive Director will determine whether overages must be eliminated, and if so, TCM must require its Concessionaires to reduce prices within three (3) business days of the date of Executive Director’s decision. If any City-initiated price comparisons disclose a violation of the requirements of this Agreement, the cost of such City-initiated price comparisons shall be borne by TCM, and upon the delivery of an invoice from City, TCM shall pay the same to City, [**], within thirty (30) days of receipt of City’s invoice.
3.19Airport Employee Discount. TCM shall require its Concessionaires to offer a ten percent (10%) discount on all food and non-alcoholic beverages purchased by those Airport employees of City and employees of Airport tenants who have been issued Airport Security Identification badges by City, which discount shall be based on Concessionaire’s normal non-sale or non-promotional prices.
IVPAYMENTS BY TCM.
4.1[**]
4.1.1 [**]
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4.1.2 [**]
4.1.2.1[**]
4.1.2.2[**]
4.1.2.3[**]
4.1.3[**]
4.1.3.1[**]
4.1.4[**]
4.1.5[**]
4.2[**]
4.3[**]
4.4Utilities. Utilities with respect to the Premises (including each Unit therein), including electricity, gas and water, shall be separately metered as to the Premises (and as to each Unit therein), at TCM’s expense, and shall be invoiced directly to TCM. TCM shall be responsible for reading all of such separate meters. If Executive Director agrees that it is impossible to separately meter a given utility with respect to all or a portion of a given Premises, then TCM shall pay to City as Additional Rent a reasonable and non-discriminatory pro-rata amount of said utility invoice which includes said Premises, based upon Executive Director’s good faith estimate of TCM’s share thereof. Executive Director’s estimate may be based on the square footage of TCM’s Premises compared with the square footage of the area serviced, or upon some other reasonable and non-discriminatory criteria designated by Executive Director in Executive Director’s good faith business judgment. City shall invoice TCM for amounts due and TCM shall pay the same within thirty (30) days of receipt of City’s invoice. TCM shall have the right to pass through all of such charges for utilities to its Concessionaires but without any administrative mark up or profit.
4.5Refuse Removal. TCM shall comply with the provisions of Section 5.6 with regard to the disposition of trash and garbage, waste reduction and recycling. City may designate garbage or refuse disposal areas at each Facility for use by concessionaires. City reserves the right to charge, and in such event, TCM shall pay to City as Additional Rent a reasonable and non-discriminatory pro-rata amount of the cost for segregation and/or removal of garbage and refuse from designated garbage or refuse disposal areas based upon Executive Director’s good faith estimate of TCM’s (and its Concessionaires’) share thereof. Executive Director’s estimate may be based on TCM’s Premises square footage compared with the square footage of the area serviced, or upon some other reasonable and not unjustly discriminatory criteria designated by Executive Director in Executive Director’s good faith business judgment. City shall invoice TCM monthly for amounts due and TCM shall pay the same to City as Additional Rent within thirty (30) days of receipt of City’s invoice. TCM shall have the right to
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pass through all of such charges for refuse removal to its Concessionaires but without any administrative mark up or profit.
4.6Other Fees and Charges. If City has paid any sum or sums or has incurred any obligations or expense which TCM had agreed to pay or reimburse City for, or if City is required or elects to pay sum(s) or ensure obligation(s) or expense(s) by reason of the failure, neglect or refusal of TCM to perform or fulfill any of the conditions, covenants or agreements contained in the Agreement, or as a result of an act or omission of TCM contrary to said conditions, covenants, and agreements, TCM shall pay the sum(s) so paid or the expense(s) so incurred (including all interest, costs, damages and penalties, and the same may be added to any installment of the fees and charges thereafter due hereunder), [**], as Additional Rent recoverable by City in the same manner and with like remedies applicable to any other component of Rent hereunder.
4.7Method of Payment. The procedure for the payment of the Rent shall be as follows:
4.7.1Payment Location. All Rent payable hereunder shall be paid to the City of Los Angeles, Department of Airports, either by wire transfer of immediately available funds to City’s bank account as designated the Executive Director in writing or by mail at Post Office Box 92216, Los Angeles, California 90009-2216, at the election of TCM, unless and until City designates some other party to receive or place for the payment of Rent. All such payments shall be made in lawful money of the United States and through a domestic branch of a United States financial institution, without demand, set-off or deduction of any kind.
4.7.2Other Payment Terms. The Rent for any fractional part of a calendar month at the commencement or termination of the term shall be a prorated amount of the Rent for a full calendar month based upon a thirty (30) day month.
4.7.3Monthly Gross Revenue Report. In addition to the provision of weekly sales revenue data in a format specified by the Executive Director via electronic means as required under Section 5.5 below, on the twenty-fifth (25th) day of each calendar month throughout the Primary Term of this Agreement, TCM shall submit a monthly accounting of the TCM Revenues and the related Rent calculations (e.g., MAG and Base Percentage Rent). Each monthly report shall be in such manner and detail and upon such forms as are prescribed from time to time by Executive Director. TCM shall submit its industry standard software generated monthly reporting form for approval by the Executive Director in the Business and Operations Plan. Each monthly report is due on the same date that the payment of the Percentage Rent for that month is due. The monthly report shall be delivered to City at the following e-mail address or such other address as the Executive Director may designate in writing: concessionsreporting@lawa.org. In addition to the foregoing monthly gross revenue report, the Executive Director may, in its sole discretion and with reasonable notice to TCM, require TCM within twenty five (25) days following the end of each calendar month to report to the Airport’s Chief Financial Officer certain operating statistical and financial data applicable to the Airport covering the previous calendar month in such form and content as shall be reasonably specified by the Chief Financial Officer.
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4.7.4Annual Gross Revenue Report. Within one hundred twenty (120) days after the end of each Year, TCM shall submit an annual accounting of the TCM Revenues and related Rent calculations (e.g., MAG, Base Percentage Rent, and Contingent Percentage Rent). The annual report shall include calculations in the aggregate for the entire Premises and shall also include Concessionaire rents and gross sales information broken down for each Unit and by Facility. Each annual report shall be in such manner and detail and upon such forms as are prescribed by Executive Director. Each annual report shall be reviewed by an independent Certified Public Accountant. The annual report shall be delivered to City at the following e-mail address or such other address as the Executive Director may designate in writing: concessionsreporting@lawa.org. TCM shall submit its industry standard software generated annual reporting form for approval by the Executive Director in the Business and Operations Plan. The receipt by City of any monthly or annual report, accounting or statement or any payment of Percentage Rent or other Rent for any period shall not bind City as to the correctness of the monthly or annual report accounting or statement or the correctness of any payment.
4.7.5[**]
4.7.6Pro Rata Payment. If the commencement or termination of this Agreement (or other applicable date for the commencement or termination of the payment of Rent) falls upon any date other than the first or last day of any calendar month, the applicable fees and charges for said month shall be in the same proportion that the number of days the Agreement is in effect for that month bears to the total number of days in that month.
4.7.7Late Charge. Notwithstanding any other provision of this Agreement to the contrary, TCM hereby acknowledges that late payment to City of Rent, or other amounts due hereunder will cause City to incur costs not contemplated by this Agreement, the exact amount of which will be extremely difficult to ascertain. If any Rent or other sums due from TCM are not received by City within ten (10) days after their due date, then TCM shall pay to City a late charge equal to [**] percent of such overdue amount. City and TCM hereby agree that such late charges represent a fair and reasonable estimate of the cost that City will incur by reason of TCM’s late payment and shall not be construed as a penalty. City’s acceptance of such late charges shall not constitute a waiver of TCM’s Default with respect to such overdue amount or stop City from exercising any of the other rights and remedies granted under this Agreement.
4.7.8Interest. Any installment of Rent and any other sum due from TCM under this Agreement which is not received by City within ten (10) days from when the same is due shall bear interest from the date such payment was originally due under this Agreement until paid at the greater of (a) an annual rate equal to the maximum rate of interest permitted by law, or (b) [**] percent per annum. Payment of such interest shall not excuse or cure any Default by TCM.
4.7.9[**]
4.8Books and Records. TCM shall establish and maintain a business office in the County of Los Angeles. TCM shall maintain in said office or in such other office approved by the Executive Director, during the term of the Agreement, its permanent books and records (herein “Books and Records”), including but not limited to general ledgers, subsidiary ledgers,
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trial balances, sales journals, invoices, chart of accounts and all other supporting documents wherein are kept all entries and information necessary to perform an audit of (i) rental, fees, and other charges paid and payable to City, (ii) all financial information relating to the TCM Revenues and all other transactions of TCM at the Airport, (iii) any and all construction costs in connection with any construction performed by or on behalf of TCM or its Concessionaires at the Airport, and (iv) any other matters relating to the performance of TCM’s obligations under this Agreement. City may, in the Executive Director’s sole discretion and with reasonable notice to TCM, require TCM to provide access to all Books and Records and other information necessary in connection with any audit by City under this Agreement. City’s right to access such records and information shall survive three (3) years beyond the expiration of each Year under this Agreement. Unless otherwise authorized by the Executive Director in writing, TCM shall retain all Books and Records and any other information necessary to perform any audit as described in this Agreement during such three (3) year period.
4.8.1Examination of Records. City’s accountants or representatives may examine the Books and Records of TCM for the purpose of conducting an audit. TCM shall produce these records for inspection and copying at the Premises or, at Executive Director’s option, City’s offices within twenty (20) days of Executive Director’s request. In the event TCM does not make available to City the pertinent books and records at the Airport or a TCM office located within a fifteen (15) mile radius of the Airport within the aforesaid twenty (20) days as set forth in this Section, TCM agrees to pay for all travel costs, housing, meals, and other related expenses associated with the audit of said books, reports, accounts, and records by City at TCM’s place of records at any time during its ordinary business hours. If TCM’s Books and Records have been generated from computerized data, TCM agrees to provide City with extracts of the data files in a computer readable format or other suitable alternative computer data exchange formats. City shall have the right to interview such employees and representatives of TCM and its Concessionaires as City deems necessary to conduct and support the audit.
4.8.2Audit; Deficiencies. If it is determined by City as a result of an audit that there has been a deficiency in the payment of any Rent (a “Deficiency”), then such Deficiency shall immediately become due and payable within thirty (30) days of written demand by City. In connection with any audit conducted by City, deficiencies ascertained by applying percentages of error obtained from such testing and sampling to the entire period of reporting under examination will be binding upon TCM. [**]
4.8.3Confidentiality. The execution of a confidentiality agreement shall not be are prerequisite to the conduct of any audit by City hereunder. However, to the maximum extent permitted under applicable Laws, all information gained by City from such examinations shall be confidential and shall not be disclosed other than as may be required by court order, other legal process or pursuant to the provisions of the California Public Records Act; provided, however, the foregoing shall not prevent the use of such information in connection with any litigation between the City and TCM; provided, further, to the extent commercially reasonable under the then-existing circumstances, City shall use commercially reasonable efforts to give written notice to TCM in advance of such disclosure to afford TCM the opportunity to attempt to secure available protective measures to safeguard such information.
4.9Taxes. TCM shall pay all taxes and assessments of whatever character that may be levied or charged upon the rights of TCM (and/or its Concessionaires) to use the Premises (or
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any portion thereof), or upon TCM’s and its Concessionaires’ improvements, fixtures, equipment or other property thereon, or upon TCM’s or its Concessionaires’ operations in connection with this Agreement. In accordance with California Revenue and Taxation Code Section 107.6(a), City states that by TCM’s executing this Agreement and accepting the benefits thereof, a property interest may be created known as a “possessory interest” and such property interest will be subject to property taxation. TCM, as the party in whom the possessory interest is vested, may be subject to the payment of the property taxes levied upon such interest. TCM shall protect, defend, indemnify and hold harmless City and City Agents from and against Claims incurred by or asserted against City or any City Agent in connections with any and all present or future taxes and assessments of whatever character that may be levied or charged upon the rights of TCM (and/or its Concessionaires) to use the Premises (or any portion thereof), or upon TCM’s and its Concessionaires’ improvements, fixtures, equipment or other property thereon, or upon TCM’s or its Concessionaires’ operations in connection with this Agreement. TCM shall have the right to pass through all of such taxes to its Concessionaires but without any administrative mark up or profit.
4.10Faithful Performance Guarantee. TCM shall furnish to City, at TCM’s sole cost and expense, and shall keep in full force and effect and available during the complete term of this Agreement (including any unauthorized hold over period) and for thirty (30) days after the surrender of possession in accordance with the requirements of this Agreement, a Faithful Performance Guarantee (“FPG”) to secure the faithful and timely performance by TCM of all terms, provisions, and covenants contained in this Agreement, including, but not limited to, the payment of the Base Rent (including any Percentage Rent), Additional Rent, the Storage Rent (as defined in Exhibit E), and any other specified compensation. The initial amount of the FPG shall be [**] (herein, the “FPG Amount”). [**]
4.10.1[**]
4.10.2The FPG shall be in the form of an irrevocable standby letter of credit (“LOC”), which shall be self renewing with an “evergreen clause” that renews the credit from year to year without amendment, subject to termination upon sixty (60) days written notice to City, and issued by issuer acceptable to City, with offices in Los Angeles, California. The LOC shall allow for partial and multiple drawings by City, and must have an expiry date consistent with the ability to make such drawings for the full period required hereunder. The FPG and all amendments increasing the FPG Amount must be approved as to form by the City Attorney.
4.10.3TCM shall furnish the FPG no later than ten (10) business days after the Effective Date of this Agreement, and any amendments to the FPG relating to the adjustment of the FPG Amount shall be delivered to City within thirty (30) days following the effective date of such adjustment. [**] The FPG shall be submitted to:
Revenue Accounting
Department of Airports
P.O. Box 92214
Los Angeles, CA 90009
4.10.4[**]
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4.11MAG Adjustment for Enplanement Decline. For any full twelve-month Year during the Primary Term (i.e., excluding any partial Years occurring at the beginning or end of the Primary Term) in which the total combined number of passenger enplanements in Terminals 1, 3 and 6 for such Year is less than the total combined number of passenger enplanements in Terminals 1, 3 and 6 for the 2011 calendar year (each such Year in which such total combined passenger enplanements are less than the total combined passenger enplanements for the 2011 calendar year is referred to herein as a “Base Year Decline Adjustment Year”), the MAG for such Base Year Decline Adjustment Year shall be retroactively adjusted in the manner provided in Section 4.11.1 below.
For any full twelve-month Year during the Primary Term that does not meet the foregoing definition of a Base Year Decline Adjustment Year in which the total combined number of passenger enplanements in Terminals 1, 3 and 6 for such Year is less than ninety percent (90%) of the total combined number of passenger enplanements in Terminals 1, 3 and 6 for the immediately prior full twelve-month Year (each such Year in which such total combined passenger enplanements declines to less than ninety percent (90%) of the total combined passenger enplanements for the immediately prior Year is referred to herein as a “Prior Year Decline Adjustment Year”), the MAG for such Prior Year Decline Adjustment Year shall be retroactively adjusted in the manner provided in Section 4.11.2 below.
Upon written request from TCM following each Year end, the Executive Director will, promptly following its availability, notify TCM of the actual annual number of enplaned passengers in Terminals 1, 3 and 6 for such Year. In the event of a decline in passenger enplanements for such Year resulting in either a Base Year Decline Adjustment Year or a Prior Year Decline Adjustment Year, TCM shall submit to City, promptly following such notification, TCM’s proposed calculation of the applicable retroactive adjustment under this Section 4.11 for the Executive Director’s review and approval. Any such retroactive adjustment to the MAG under this Section 4.11 shall be made within the sixty (60) day period following the end of such Year. Any such retroactive adjustment to the MAG under this Section 4.11 shall apply only to the calculation of the MAG for such Year and shall not be carried over to the calculation of either the MAG or the Monthly MAG Payment for the following Year. For avoidance of doubt, the parties acknowledge that such adjustment under this Section 4.11 applies retroactively to the MAG for the particular Base Year Decline Adjustment Year or Prior Year Decline Adjustment Year (as applicable) in question only, and the calculation of the MAG for the following Year shall be made as provided in Section 4.1.2 above without regard to such adjustment to the prior Year’s MAG under this Section 4.11. However, any such subsequent Year is subject to potential adjustment following the end of such subsequent Year in the event that such subsequent Year qualifies as either a Base Year Decline Adjustment Year or a Prior Year Decline Adjustment Year. The determination of the number of enplaned passengers in Terminals 1, 3 and 6 for the 2011 calendar year and each Year during the Primary Term shall be made by the Executive Director based on information provided by the airlines in Terminals 1, 3 and 6, and the Executive Director’s determination shall be deemed binding and conclusive on TCM for all purposes under this Agreement.
4.11.1Decrease Below 2011 Year. In the event that the total combined number of passenger enplanements in Terminals 1, 3 and 6 for any full twelve-month Year during the Primary Term is less than the total combined number of passenger enplanements in Terminals 1,
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3 and 6 for the 2011 calendar year, then the MAG for such Base Year Decline Adjustment Year shall be retroactively adjusted such that the MAG for such Year shall be an amount equal to the CPI Adjusted Minimum Annual Guaranteed Rent for such Year reduced by the percentage change between the total combined number of passenger enplanements in Terminals 1, 3 and 6 for the 2011 calendar year and the total combined number of passenger enplanements in Terminals 1, 3 and 6 for the Base Year Decline Adjustment Year (i.e., the CPI Adjusted Minimum Annual Guaranteed Rent shall be multiplied by a fraction, the numerator of which is the total combined number of passenger enplanements in Terminals 1, 3 and 6 for the Base Year Decline Adjustment Year and the denominator of which is the total combined number of passenger enplanements in Terminals 1, 3 and 6 for the 2011 calendar year). For avoidance of doubt, the parties expressly understand and agree that the MAG for the Base Year Decline Adjustment Year, as so retroactively adjusted, may be less than either the MAG calculated on the basis of the CPI Adjusted Minimum Annual Guaranteed Rent for such Year or on the basis of 85% of the Percentage Rent for the prior Year.
4.11.1.1[**]
4.11.2Decrease Below 90% of Prior Year. In the event that the total combined number of passenger enplanements in Terminals 1, 3 and 6 for any full twelve-month Year during the Primary Term (that does not meet the foregoing definition of a Base Year Decline Adjustment Year) declines to less than ninety percent (90%) of the total combined number of passenger enplanements in Terminals 1, 3 and 6 for the immediately prior full twelve-month Year, then the MAG for such Prior Year Decline Adjustment Year shall be retroactively reduced by the difference between such ninety percent (90%) threshold and the actual percentage obtained by dividing the total combined number of passenger enplanements in Terminals 1, 3 and 6 for such Year by the total combined number of passenger enplanements in Terminals 1, 3 and 6 for the immediately prior Year. [**]
4.11.2.1[**]
4.11.3[**]
VOPERATING STANDARDS.
5.1Operating Standards. This Article and its Sections pertain to TCM’s operational obligations. The operating standards set forth in Article V and its Sections below are minimum operating standards, and are in addition to the operating standards set forth in the Business and Operations Plan. The parties agree that TCM’s performance of its obligations under this Article V with respect to the monitoring and enforcement of the operating standards for concession operations within the Premises are extremely important to City, and that TCM’s failure to perform those activities will result in administrative and monitoring expenses to City and its staff, which may be charged to TCM in the discretion of the Executive Director.
5.2Staffing and Personnel.
5.2.1Generally. TCM shall employ a full-time trained professional staff at all times during the term of this Agreement of sufficient size, expertise, ability, suitability, and experience in retail, customer service and concession management to carry out all of its
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obligations and responsibilities under this Agreement. TCM shall maintain a sufficient number of operating staff on-site at the Premises during the service hours as more particularly set forth in the Business and Operations Plan. TCM operating staff on the Premises shall be available by telephone and/or such other communications device as the Executive Director may require during the service hours. TCM shall require its Concessionaires to maintain a sufficient number of personnel, including, without limitation, cashiers, management and supervisory personnel, to fully meet the needs of customers during the service hours. TCM shall, at its sole cost and expense, furnish (and shall require its Concessionaires to furnish) prompt, courteous and efficient service and shall ensure polite and inoffensive conduct and demeanor on the part of their respective representatives, agents and employees, collectively referred to herein as “Personnel.” All such Personnel shall provide a high level of customer service consistent with first class food and beverage and retail concession operations and shall use skill and diligence in the conduct of business. All such Personnel, while on or about the Premises (and any Unit therein), shall be clean, neat in appearance and shall be appropriately attired, with badges or other suitable means of identification clearly visible. TCM shall ensure that all Personnel conform to personal hygiene and food handling requirements established by the Rules and Regulations and the applicable Laws (hereinafter defined), whichever is most stringent. No Personnel, while on or about the Premises (or any Unit therein), shall use improper language, act in loud, boisterous or otherwise improper way or be permitted to solicit business in an inappropriate manner. TCM shall ensure that all Personnel that interact with the public can adequately communicate with customers and are professional and courteous in interactions with the public. All Personnel shall have sufficient knowledge of the Facilities and the Airport to promptly direct and assist passengers in and around the Facilities and the Airport.
5.2.2Customer Complaints. In the event that TCM or any of its Concessionaires receives complaints concerning the concession operations within the Premises, TCM shall comply with the policies and procedures regarding customer complaints set forth in the Business and Operations Plan.
5.2.3Objections. City (through the Executive Director) shall have the right to object to the demeanor, conduct, and appearance of any Personnel at the Premises (including any Unit therein), subject to applicable Laws. TCM shall take all steps reasonably necessary to remedy the cause of any objection by City. TCM shall be responsible for the immediate removal from the Premises, or discipline in accordance with TCM’s or the applicable Concessionaire’s
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employee discipline policy, of any Personnel who participate in improper or illegal acts on the Airport, or who violate any of the Rules and Regulations or any provision of this Agreement.
5.2.4City Not Liable for Employment Issues. This Agreement does not establish any employer-employee, joint venture or agency relationship between City and TCM (or any Concessionaire), and TCM is and shall be engaged independently in the business of managing the Premises (including each Unit therein) on its own behalf. All employment arrangements and labor agreements with Personnel are, therefore, solely and exclusively TCM’s or the applicable Concessionaire’s rights, obligations and liabilities, and City shall have no obligations or liability with respect thereto. TCM hereby agrees to indemnify, defend, and hold City, the Board, Executive Director and their respective Board members, officers, directors, employees, agents, advisors, attorneys, and representatives (collectively, “City Agents”) harmless from and against any Claims of whatever nature that arise in connection with any such employment arrangements or labor agreements relating to TCM or any of its Concessionaires.
5.3[**]
5.4Hours of Operation.
5.4.1Minimum Hours of Operation. The Premises (including the Units within the Premises) shall be open for business every day, three hundred sixty-five (365) days per year. TCM shall operate the Premises and shall require its Concessionaires to operate each Unit within a Facility in accordance with the following minimum hours of operation (“Minimum Hours of Operation”): (i) if such Unit is located on the departure level of a Facility, Minimum Hours of Operation shall be at least two hours before the first scheduled departure from such Facility until the last departure of the day from such Facility, without exception, and (ii) if such Unit is located on the arrival level of a Facility, Minimum Hours of Operation shall be from the first scheduled arrival at such Facility to at least an hour after the last scheduled arrival at such Facility, without exception. Except in connection with the expiration or earlier termination of this Agreement, TCM may not vacate or abandon the Premises (including any Unit therein) at any time.
5.4.2Executive Director May Alter Hours. The Executive Director may, on 24 hour notice to TCM temporarily modify the Minimum Hours of Operation for any Premises (including any Unit therein). After consultation with TCM, the Executive Director may in his or her reasonable discretion, upon ten (10) days’ notice to TCM, permanently modify the Minimum Hours of Operation for any Premises (including any Unit therein). TCM shall require its Concessionaires to comply with such modifications. Upon the written request of TCM, Executive Director may, from time to time, authorize a later opening or earlier closing time for any Premises (or any Unit therein), provided Executive Director first finds that TCM has submitted adequate justification therefor; provided, however, decreases in passenger traffic shall not be considered adequate justification.
5.5Monthly Sales Reports; Credit Cards.
5.5.1Gross Sales Reports. During the Primary Term, TCM shall, on or before the twenty-fifth (25th) day of each month, provide to City a monthly report setting forth the gross sales by Unit of each of the Units within the Premises for the prior calendar month. Such
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monthly report shall be in such form and detail as may be prescribed by the Executive Director from time to time.
5.5.2Credit Cards, Foreign Currency. TCM’s Concessionaires shall not be required to accept foreign currency. If a Concessionaire elects to accept foreign currency, such may only be accepted for payment of goods and shall not be exchanged. In addition, all Concessionaires shall be required to accept all major credit and debit cards in payment for goods and services sold, and there shall be no minimum purchase requirement for transactions using such credit and debit cards. In the event of a dispute regarding what constitutes a major credit or debit card, the determination of the Executive Director shall be conclusive and binding. Concessionaires shall provide, without charge, change-making services at each cashier location in United States denominated coin and currency.
5.6Deliveries; Access and Coordination. To the extent airside access rights are granted to TCM or its Concessionaires, TCM shall comply (and shall require its Concessionaires to comply) with all applicable Rules and Regulations and Laws in order to obtain clearance for airside access. Except and to the extent expressly directed by Executive Director in writing, all deliveries of products, goods, merchandise, supplies, and other materials to and from the Premises (including any Unit therein) and trash removal from the Premises (including any Unit therein) necessary to the operation of the Premises (or any Unit therein) shall be conducted through the airside locations designated in the DIP Approval, as such airside locations may be changed by Executive Director from time to time upon written notice to TCM. TCM acknowledges and agrees that all such deliveries by TCM and its Concessionaires shall be in conformance with the Rules and Regulations and security requirements in effect with respect to airside operations at the Airport, and TCM and its Concessionaires shall bear all costs incurred by them in connection with their respective compliance. TCM shall make (and shall cause its Concessionaires to make) deliveries only within the times and at locations authorized by Executive Director. TCM shall require that all airside deliveries be made by vehicles and drivers qualified and permitted by City to drive over airside access roadways. Delivery hours and locations may be specified and changed from time to time at the sole discretion of Executive Director.
5.6.1Removal of Garbage and Refuse. TCM shall strictly comply (and shall cause its Concessionaires to comply) with the Rules and Regulations and applicable Laws regarding the disposition of trash, rubbish, refuse, garbage and recycled materials, shall regularly remove all trash, rubbish, refuse, garbage and recycled materials from the Premises to the appropriate garbage or refuse disposal area or recycled materials area designated by Executive Director from time to time and shall remove the accumulation of all such material in such area or areas at frequent intervals. Prior to removal to such garbage or refuse disposal area, TCM shall (and shall require its Concessionaires to) store all trash and other waste in covered, odor, leak and vermin proof containers (including recycling containers), such containers to be kept in areas not visible to members of the public. Accumulation of trash, boxes, cartons, barrels or other similar items shall not be permitted in any public area at Airport.
5.6.2LAWA Waste Reduction and Removal. TCM shall comply (and shall require its Concessionaires to comply) with current and future Rules and Regulations and other regulations promulgated by the City of Los Angeles regarding the reduction and recycling of trash and debris. Without limiting the generality of the foregoing, TCM shall participate (and
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shall require its Concessionaires to participate) in meeting the Airport’s mandated goal of seventy percent (70%) waste diversion by 2015, by developing and implementing a program to remove as much recyclable material from the waste stream as possible (a “Recycling Program”). Any Recycling Program shall consist of at a minimum mixed office paper and cardboard recycling, beverage container recycling in employee break areas and public areas if applicable, diversion through 2-sided copying, reuse of pallets, utilization of minimum thirty percent (30%) recycled content copy paper and other recycled content paper goods. TCM shall prepare and submit to City a written description of such Recycling Program with respect to the Premises (and each Unit therein) as part of the Business and Operations Plan. TCM shall incorporate reasonable revisions to such Recycling Program required by City. If TCM’s corporate management has a written policy on waste reduction and sustainability, TCM shall provide a copy of such policy to City at the notice address set forth in the Basic Information, Attention: LAWA Recycling Coordinator. TCM shall provide periodic reports as outlined in the Business and Operations Plan to the LAWA Recycling Coordinator (in the form and format prescribed by City) detailing the volume and type of materials diverted from the waste stream in accordance with such Recycling Program. Such reports shall also describe other waste minimization practices, such as use of compostable utensils and dishware, reuse of materials and equipment, salvaging of materials and recycling of construction and demolition waste. Without limiting the generality of City’s other access and inspection rights under this Agreement, City shall have the right to access the Premises during regular business hours to review and verify TCM’s compliance with its Recycling Program and other waste minimization practices. LAWA discourages the use of polystyrene foam including one-time use clamshell food containers, bowls, plates, trays, cartons, and cups in which food or beverages are placed or packaged. In addition, restaurants and food vendors are required to use biodegradable or compostable food service ware unless an affordable alternative is not available.
5.6.3Coordinated Delivery and Trash/Re-Cycling Removal System. TCM acknowledges that the Executive Director may implement coordinated systems for airside access deliveries and Trash/Recycling Removal and that such coordinated systems may (a) be operated by one or more third party contractors, (b) require the use of a designated transfer locations, (c) require the payment or reimbursement by TCM, its Concessionaires and other participants of costs and expenses, and any such amounts payable or reimbursable if paid to City shall be Additional Rent hereunder, or may be payable to such third party contractors pursuant to separate agreements with such contractors; and (d) TCM understands and acknowledges that, if implemented, participation with the coordinated systems may be mandatory. TCM acknowledges that such coordinated systems may not become effective until after the commencement of the Primary Term of this Agreement. TCM shall be responsible for all deliveries until such time as Executive Director delivers written notice to TCM that such systems are being implemented. TCM shall be permitted to pass through all of such costs and expenses to its Concessionaires but without any administrative markup or profit.
5.7Quality Assurance Audits. TCM shall perform (and shall cause its Concessionaires to perform) quality assurance audits with respect to the operations at each Unit and the Premises and compliance with the terms of this Agreement in accordance with the provisions of the Business and Operations Plan.
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5.8Prohibited Acts. TCM shall not do or permit to be done anything specified in Sections 5.8.1 through 5.8.8. Specifically, TCM shall not (and ensure that its Concessionaires do not):
5.8.1Interfere with Access. Do anything which may interfere with free access and passage in the Premises, the Common Areas adjacent thereto (including, without limitation, the elevators, escalators, streets or sidewalks of the Airport), or any restricted non-Common Areas of the Airport, or hinder security, police, fire fighting or other emergency personnel in the discharge of their duties, or hinder access to utility, heating, ventilating or air-conditioning systems, or portions thereof, on or adjoining the Premises or the Common Areas adjacent thereto. Without limiting the generality of the foregoing, TCM (and its Concessionaires) shall not install any racks, stands or other display of merchandise or trade fixtures at the Airport outside of the Premises without the prior written consent of Executive Director.
5.8.2Interfere with Systems. Do anything which may interfere with the effectiveness of utility, heating, ventilating or air-conditioning systems or portions thereof in or adjoining the Premises (including lines, pipes, wires, conduits and equipment connected with or appurtenant thereto) or interfere with the effectiveness of elevators or escalators in or adjoining the Premises, or overload any floor in the Premises.
5.8.3Permit Smoking Where Prohibited. Do anything contrary to the Board of Airport Commissioners’ policy, City ordinances, or Section 41.50 of the Los Angeles Municipal Code, which prohibits smoking.
5.8.4Install Unauthorized Locks. Place any additional lock of any kind upon any window or interior or exterior door in the Premises (including any Unit therein), or make any change in any existing door or window lock or the mechanism thereof, unless a key therefor is maintained in such Premises (including any Unit therein), nor refuse, upon the expiration or sooner termination of this Agreement, to surrender to Executive Director any and all keys to the interior or exterior doors in, and on the Premises (including each Unit therein), whether said keys were furnished to or otherwise procured by TCM or its Concessionaire, and in the event of the loss of any keys furnished by Executive Director, TCM shall pay City, within thirty (30) days of written demand, the cost for replacement thereof, and the cost of re-keying City’s locks. TCM shall install (or cause its Concessionaires to install) lock boxes in the Premises (including all Units therein) with copies of keys, as required by City.
5.8.5Noise and Lights; Other Interference. No loudspeakers, televisions, video monitors, sound systems, audio players, radios, flashing lights or other devices shall be installed in the Premises (including any Unit therein) or used in a manner so as to be heard or seen outside of such Premises (or such Unit) without the prior written consent of Executive Director (including obtaining, and complying with, all applicable City construction approval conditions). TCM shall conduct its, and require its Concessionaires to conduct their, operations on the Premises in such manner as to reduce as much as is reasonably practicable, considering the nature and extent of said operations, any and all activities which interfere unreasonably with the use of other premises adjoining the Premises at the Airport, including, but not limited to, the emanation from the Premises of noise, vibration, movements of air, fumes, and odors.
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5.8.6Increase Liability. Do any act or thing upon or about the Premises (any Unit therein) which will invalidate, suspend or increase the rate of any fire insurance policy required under this Agreement, or carried by City, covering the Premises, or the Facility in which the same are located or which, in the opinion of Executive Director, may constitute a hazardous condition that will increase the risks normally attendant upon the operations contemplated under this Agreement. If, by reason of any failure on the part of TCM after receipt of notice in writing from City to comply with the provisions of this section, any fire insurance rate on the Premises, or any part thereof, or on the Facility in which the same are located, shall at any time be higher than it normally would be, then TCM shall pay City, within thirty (30) days of written demand as Additional Rent, that part of all fire insurance premiums paid by City which have been charged because of such violation of failure of TCM; provided, however, that nothing contained herein shall preclude TCM from bringing, keeping or using on or about any Unit such materials, supplies, equipment and machinery as are appropriate or customary in carrying on its business, or from carrying on said business in all respects as is customary.
5.8.7Airport Hazard. Make any uses of the Premises (including any Unit therein) in any manner which might interfere with the landing and taking off of aircraft from the Airport or otherwise constitute a hazard to such operations.
5.8.8Permit Unlawful Use. Use or allow the Premises to be used for any improper, immoral, unlawful or objectionable purposes, or commit any waste upon the Premises.
In the event that any of the aforesaid covenants or restrictions set forth above in this Section 5.8 is breached, City reserves the right to enter upon the Premises (including any Unit therein) and cause the abatement of such interference at the expense of TCM.
5.9Signs, Promotions & Displays.
5.9.1Subject to the restrictions contained in Section 3.7, TCM shall not erect, construct or place (and shall cause its Concessionaires not to erect, construct or place) any sign, promotion or display in, on or upon any portion of the Premises (including any Unit therein) or the Airport unless TCM (or such Concessionaire) has submitted to Executive Director drawings, sketches, design dimensions, and type and character of such sign, promotion or display proposed to be placed thereon or therein and has received written approval from Executive Director with respect thereto. Notwithstanding the foregoing, each Concessionaire may, without the prior consent of the Executive Director, place signs or displays within such Concessionaire’s Unit that promote the products and/or services sold by such Concessionaire in such Unit, provided that such sign or display is not readily visible from outside of such Unit; unless otherwise disapproved in writing by TCM or the Executive Director, which disapproval by the Executive Director may require the removal of such sign or display at any time as determined in the Executive Director’s sole discretion. All signs, promotions and displays shall comply with applicable design guidelines of City as revised from time to time and all applicable construction approvals and conditions. TCM (and its Concessionaires) shall not erect, construct or place any sign, promotion, advertisement or display outside the Premises, without the prior written approval of the Executive Director. TCM shall (and shall require its Concessionaires to) remove any signage or displays that the Executive Director determines to be removed.
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5.9.2Other than signs, promotions and displays approved or permitted pursuant to Section 5.9.1, TCM (and its Concessionaires) shall not, at any time, under any circumstances, install, place, or maintain any type of advertising in, on or upon the Premises or the Airport.
5.9.3In addition, TCM’s Concessionaires’ Units shall be free of all third party advertising, signs, credit card application dispensing units, posters, and banners. Noncompliance by TCM’s Concessionaire with the provisions of this Section 5.9 shall result in City’s right to immediately remove said unauthorized signs, advertising, or other written materials and to store same at TCM’s expense. City may dispose of said unauthorized signs, advertising, or other written materials if TCM has not paid City’s expenses for removal and storage [**] and claimed said signs, advertising, or other written materials within fifteen (15) calendar days after City has provided written removal notice.
5.9.4Removal of Signs. Upon the expiration or earlier termination of this Agreement (or any partial termination with respect to portion of the Premises), TCM shall remove, obliterate or paint out, any and all of TCM’s or its Concessionaires’ signs, promotions and displays as Executive Director may direct. In addition, upon demand by Executive Director, TCM shall remove, obliterate or paint out, any signs, promotions, advertising or displays placed or installed in violation of this Agreement, as Executive Director may direct. If TCM fails to do so, Executive Director may cause said work to be done at the sole cost and expense of TCM, and TCM shall pay the same to City [**] as Additional Rent within thirty (30) days of receipt of City’s invoice.
5.10Licenses and Permits. TCM shall obtain and pay for (and shall require its Concessionaires to obtain and pay for) all licenses and permits necessary or required by law for the conduct of TCM’s and its Concessionaires’ operations at the Premises.
5.11Compliance with Laws.
5.11.1TCM shall, at TCM’s sole cost and expense, (and shall require TCM’s Concessionaires, employees, contractors, representatives, agents, permittees and invitees (individually, a “TCM Party” and collectively, the “TCM Parties”) to) fully and faithfully observe and comply with (a) all municipal, state and federal laws, statutes, codes, rules, regulations, ordinances, requirements, and orders (collectively, “Laws”), now in force or which may hereafter be in force pertaining to the Premises or TCM’s or its Concessionaires’ use of the Premises, the Facility(ies) or the Airport (including without limitation, (i) all safety, security and operations directives of City, including by Executive Director, which now exist or may hereafter be promulgated from time to time governing conduct on and operations at the Airport or the use of facilities at the Airport; and (ii) any and all valid and applicable requirements of all duly-constituted public authorities (including, without limitation, the Department of Transportation, the Department of Homeland Security, the Federal Aviation Administration, and the Transportation Security Administration)); (b) all recorded covenants, conditions and restrictions affecting the Airport (“Private Restrictions”) now in force or which may hereafter be in force; and (c) the Rules and Regulations. The judgment of any court of competent jurisdiction, or the admission of TCM in any action or proceeding against TCM, whether City be a party thereto or not, that TCM has violated any Laws or Private Restrictions, shall be conclusive of that fact as between TCM and City. As used in this Agreement, “Laws” shall include all present and future federal, state and local statutes, ordinances and regulations and City ordinances applicable to
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TCM (or its Concessionaires), the Premises (including the Units), the Permitted Uses or the Airport, including but not limited to requirements under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., including, without limitation, to Title III thereof, and all regulations and guidelines related thereto, together with any and all laws, rules, regulations, ordinances, codes and statutes now or hereafter enacted by local or state agencies having jurisdiction thereof (including, without limitation, all of the requirements of Title 24 of the California Code of Regulations), as the same may be in effect on the date of this Agreement and may be hereafter modified, amended or supplemented (collectively, the “ADA”), all acts and regulations relating in any way to food and drugs, worker’s compensation, sales and use tax, credit card processing, social security, unemployment insurance, hours of labor, wages, working conditions, the Immigration Reform and Control Act of 1986, the City of Los Angeles Administrative Code, and all Hazardous Materials Laws (as defined in Section 15 below).
5.11.2TCM agrees to pay or reimburse City as Additional Rent for any civil penalties or fines which may be assessed against City as a result of the violation by TCM or any TCM Party of any Laws or Private Restrictions, which payment shall be made by TCM within thirty (30) days from receipt of City’s invoice for such amount and documentation showing that payment of such penalty or fine is TCM’s responsibility hereunder.
5.12Airport Operations. TCM acknowledges that the operational requirements of the Airport as an airport facility, including without limitation security requirements, are of paramount importance. TCM acknowledges and agrees that TCM must conduct its business (and require its Concessionaires to conduct their business) in a manner that does not conflict with the operational requirements of the Airport as an airport facility and that fully accommodates those requirements. Without limiting other waivers herein, TCM waives all Claims against City and City Agents arising out of or connected to the operation of the Airport as an airport facility.
VIAIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISE PROGRAM.
6.1Compliance with Department of Transportation (DOT). City strictly prohibits all unlawful discrimination and preferential treatment in contracting, subcontracting and purchasing, leasing or any subleasing under this Agreement (the “Non-Discrimination Policy”). Additionally, City has established an Airport Concession Disadvantaged Business Enterprise program in accordance with regulations of the U.S. Department of Transportation, 49 Code of Federal Regulations Part 23 (the “ACDBE Rules”). TCM shall comply with the Non-Discrimination Policy and the ACDBE Rules and shall not discriminate against any business owner because of the owner’s race, color, national origin, or sex in connection with its performance under this Agreement, the management of the concession, subleasing, or purchasing. TCM shall cooperate with City in City’s program of recruiting, training, providing technical assistance and holding workshops to ensure that contracting, subcontracting and purchasing opportunities available under this Agreement are accessible and available to all qualified businesses owners, including “Airport Concession Disadvantaged Business Enterprises” (“ACDBEs”), as defined in the ACDBE Rules. In order to provide a fair opportunity for ACDBE participation, TCM shall make good faith efforts, within the meaning of the ACDBE Rules, to provide for a level of ACDBE participation in the concession operations by Concessionaires contemplated by this Agreement equal to or greater than twenty percent
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(20%) for retail and service concessions and twenty five percent (25%) for food and beverage concessions.
6.2Substitutions. Should a substitution or an addition of an ACDBE become necessary, TCM shall comply with all requirements of the ACDBE Rules. Failure to comply with the ACDBE Rules shall constitute a Default of this Agreement.
6.3Monthly Report. In order to assure compliance with the Non-Discrimination Policy and the ACDBE Rules, TCM shall submit, in the format required by Executive Director, a monthly report to City, describing the gross receipts of each initial ACDBE (and each substitute ACDBE), in each case calculated in accordance with the requirements of the Business and Operations Plan. TCM shall submit in the format required by the Executive Director such other information as may be requested by the Executive Director to ensure compliance with the ACDBE Rules.
VIIIMPROVEMENTS AND REFURBISHMENTS.
7.1TCM’s Construction Obligations. TCM shall, at TCM’s cost and expense, complete in a timely manner the construction of all improvements and the installation of all fixtures and equipment required to be constructed or installed by TCM pursuant to the terms of this Agreement (including as set forth in any DIP Approval). TCM shall require its Concessionaires, at such Concessionaire’s cost and expense, to complete in a timely manner the design and construction of all improvements and the installation of all fixtures and equipment required to be constructed or installed by such Concessionaire pursuant to and in compliance with the terms of this Agreement (including as set forth in any DIP Approval or CIP Approval). TCM shall act as project manager for its Concessionaires’ design and construction programs. TCM shall coordinate TCM and its Concessionaires’ construction activities in a manner consistent with other construction activities occurring within the Facilities. In the event of a dispute between TCM (or any of its Concessionaires) and any other Airport tenant, manager or concessionaire regarding design or construction activities or related interference with operations, TCM shall immediately report such dispute to the Executive Director and promptly thereafter meet and confer with the Executive Director. The Executive Director shall have the right to resolve any such dispute, and any such decision or other resolution by the Executive Director shall be final and binding upon TCM (and its Concessionaires). Such decision or other resolution shall be in the Executive Director’s sole discretion.
7.2Prevailing Wage. Construction work performed on City’s property will require payment of prevailing wages, if applicable. TCM is obligated to make the determination of whether the payment of prevailing wages is applicable, and TCM shall be bound by and comply with applicable provisions of the California Labor Code and Federal, State, and local laws related to labor. TCM shall indemnify, defend and pay or reimburse City for any damages, penalties or fines (including, but not limited to, attorney's fees and costs of litigation) that City incurs, or pays, as a result of noncompliance with applicable prevailing wage laws in connection with the construction work performed in connection with this Agreement (including, without limitation, the TCM Initial Premises Improvements, the Concessionaire Initial Premises Improvements, the Initial Non-Premises Improvements, the Mid-Term Refurbishment and any Alterations hereunder).
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7.3Condition of Premises on Delivery Date. Each DIP Approval will set forth a description of the condition of the Premises as of the Delivery Date. Unless otherwise agreed in writing by the Executive Director, upon the Delivery Date for each portion of the Premises, TCM and its Concessionaires shall accept such Premises in it’s “AS IS, WHERE IS” condition, and “WITH ALL FAULTS” and without any improvements or alterations to be made or constructed by City. TCM acknowledges and agrees that TCM has performed its own due diligence on all matters relating to the Areas and the Premises, including all technical and construction matters. Any “as-built” drawings, utility matrixes, or other technical information (including, but not limited to, architectural drawings or AutoCAD or other computer files) provided by City may not be accurate or complete. TCM’s (or its Concessionaires) use of or reliance on any such information shall be at its sole risk, and City shall have no liability arising therefrom. The parties acknowledge that a DIP Approval may include a contingency as a component of the not-to-exceed dollar amount for the TCM Initial Premises Improvements and/or the Initial Non-Premises Improvements. Such contingency is intended to apply to costs that may not be known or certain at the time of such DIP Approval and which costs may relate to TCM Contingencies. In the event that a contingency is established in a DIP Approval, the use of such contingency is subject to the joint authorization by TCM and the Executive Director. In the event that the Executive Director determines that reasonable justification exists to increase the not-to-exceed dollar amount for the Initial Non-Premises Improvements set forth in a DIP Approval, then the Executive Director will use good faith efforts to recommend for approval to the Board a supplemental DIP Approval containing an adjustment to the not-to-exceed dollar amount for such Initial Non-Premises Improvements (it being understood, however, that such supplemental DIP Approval requires the approval of the Board acting in the Board’s sole and absolute discretion).
7.4Construction of Initial Premises Improvements. TCM shall provide, or require its Concessionaires to provide, all improvements which are necessary to operate the Premises (including all Units therein) in accordance with the applicable DIP Approval and the applicable CIP Approvals for such Premises to the satisfaction of Executive Director. The construction of the Initial Premises Improvements shall commence on the Delivery Date for such Premises. Any closure during the construction of the TCM Initial Premises Improvements or the Concessionaire Initial Premises Improvements made by TCM’s Concessionaires, as well as the timing of applicable design and construction periods shall be approved by Executive Director and specified in writing as part of either the DIP Approval or the Construction Approval Process (as defined in Section 7.7 below). TCM shall complete the TCM Initial Premises Improvements, and require its Concessionaires to complete their respective Concessionaire Initial Premises Improvements and to commence regular concession operations within the Premises, by the applicable Premises Completion Date. The Executive Director shall have the right (but not the obligation) to extend the Premises Completion Date, which right may be exercised by the Executive Director in his or her sole discretion. TCM shall also be responsible for the timely design and construction of any further improvements or renovations to the Premises (or any Unit therein) that may be required following the construction of the initial improvements on the Premises.
7.4.1Concessionaire Improvement Plan. Within the time prescribed in the applicable DIP Approval, TCM shall cause each of its Concessionaires to prepare and deliver to the Executive Director for review and approval a definitive and comprehensive plan for the development, implementation and operation of such Concessionaire’s Concessionaire Initial
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Premises Improvements (herein, the “Concessionaire Improvement Plan”). Except as otherwise approved by the Executive Director (acting in his or her reasonable discretion), each Concessionaire Improvement Plan shall be a logical progression of the applicable DIP Approval. Except as may be expressly agreed in writing by the Executive Director, all design and construction work contemplated by any Concessionaire Improvement Plan shall be performed by, and at the expense of, TCM (or its Concessionaires).
7.4.2Contents of Concessionaire Improvement Plan. Each Concessionaire Improvement Plan for a Unit should include, but not necessarily be limited to:
7.4.3Response to Comments by the Executive Director. The Executive Director shall use reasonable efforts to respond to the submission of a Concessionaire Improvement Plan within ten (10) business days following receipt. TCM shall (or require the Concessionaire to), within ten (10) business days following receipt from the Executive Director of any requested revisions to or comments regarding deficiencies of the Concessionaire Improvement Plan, respond to the Executive Director with a revised or supplemental Concessionaire Improvement Plan which addresses such requested revisions, comments or deficiencies. Any requested revisions or comments by the Executive Director will not be unreasonable. The Executive Director shall use reasonable efforts to respond to any resubmission or supplement to a Concessionaire Improvement Plan within five (5) business days following receipt. If the Executive Director shall fail to respond to any submission or resubmission of a Concessionaire Improvement Plan within the specified time periods set forth in this Section 7.4.3, then TCM (or its Concessionaire) shall have a day for day extension in
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which to submit any revised or supplemental Concessionaire Improvement Plan. The parties also agree to use their commercially reasonable efforts to expedite the approval process hereunder with respect to the High Priority Areas so that TCM’s Concessionaires shall have an adequate time to obtain competitive bids, award contracts and perform the Concessionaires respective construction activities in order to meet the opening dates of such High Priority Areas.
7.4.4Rejection of Concessionaire Improvement Plan. In the event that TCM (or its Concessionaire) is unable or unwilling to revise or supplement a Concessionaire Improvement Plan for a Unit in the manner required by this Agreement, the Executive Director shall have the right to reject such Concessionaire Improvement Plan for such Unit, which rejection shall be in writing. In the event that the Executive Director rejects any Concessionaire Improvement Plan for any Unit, then TCM shall, within ten (10) business days, cause to be submitted a substitute Concessionaire Improvement Plan with respect to such Unit. TCM acknowledges and agrees that, in the event that the Executive Director rejects or otherwise withholds its approval of any Concessionaire Improvement Plan for any Unit, City shall have no liability or obligation to TCM or any Concessionaire whatsoever.
7.4.5Approval of Concessionaire Improvement Plan. The Executive Director shall have the right to reasonably condition the approval of any Concessionaire Improvement Plan on such further actions, undertakings or requirements to be performed by such Concessionaire or TCM as the Executive Director may deem necessary or appropriate. Each approval issued by the Executive Director approving a Concessionaire Improvement Plan (a “CIP Approval”) shall be in writing and shall contain the following:
Each CIP Approval shall be deemed to be conditioned upon TCM’s (and its Concessionaire’s) compliance with the applicable provisions of this Agreement (including, without limitation, the provisions of this Article VII), regardless of whether such CIP Approval expressly so states. Except as otherwise approved by the Executive Director, all Concessionaire Improvement Plans shall follow applicable portions of the Design and Construction Handbook.
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Within fifteen (15) business days following receipt by TCM of any CIP Approval issued by the Executive Director, TCM shall countersign (and shall require the Concessionaire to countersign) and return a copy of such CIP Approval to City, signifying TCM’s and such Concessionaire’s agreement to and acceptance of such CIP Approval (including any Conditions of Approval contained therein). The failure of TCM or such Concessionaire to so countersign and return a copy of such CIP Approval to City within said fifteen (15) business day period shall render such CIP Approval revocable by the Executive Director upon written notice to TCM at any time thereafter.
7.5Improvement Financial Obligation. Unless otherwise approved by the Executive Director, TCM covenants and guarantees that TCM and/or its Concessionaires shall on average make a collective investment in the TCM Initial Premises Improvements and the Concessionaire Initial Premises Improvements equal to [**] per square foot of area, such amount being based on the total amounts expended by TCM on the TCM Initial Premises Improvements and by TCM’s Concessionaires on the Concessionaire Initial Premises Improvements, divided by the total square footage of the Units (the “Initial Minimum Investment Amount”). Such Initial Minimum Investment Amount shall be expended by TCM on the TCM Initial Premises Improvements (or by TCM’s Concessionaires on the Concessionaire Initial Premises Improvements) constructed in accordance with this Agreement on or before the applicable Premises Completion Date.
7.6Mid-Term Refurbishment. TCM shall plan for and cause the completion of the refurbishment of the Premises in the manner set forth in this Section 7.6 (the “Mid-Term Refurbishment”) no later than January 1, 2024 (the “Mid-Term Refurbishment Completion Date”). The Executive Director shall have the discretion to defer the timing of the Mid-Term Refurbishment.
7.6.1Mid-Term Refurbishment Plan. No later than January 1, 2023, TCM shall prepare and deliver to City for Executive Director’s review and approval a Mid-Term Refurbishment plan (the “Mid-Term Refurbishment Plan”), which shall meet the then-current requirements imposed by City as part of the Construction Approval Process, and shall otherwise include information similar to that contained in the Definitive Improvement Plan for the TCM Initial Premises Improvements and Concessionaire Initial Premises Improvements. Upon receipt and review of such Mid-Term Refurbishment Plan by Executive Director and as a part of the Construction Approval Process, TCM shall incorporate any comments from Executive Director and shall re-submit such Mid-Term Refurbishment Plan until it has been approved by Executive Director. The Mid-Term Refurbishment Plan shall include not-to-exceed dollar amounts for purposes of the costs that are allowed as Qualified Investment under Section 9.3 below.
7.6.2Construction and Completion of Mid-Term Refurbishment. TCM shall construct and complete the Mid-Term Refurbishment in accordance with the Mid-Term Refurbishment Plan approved by Executive Director and the other requirements contained in this Agreement. TCM and its Concessionaires shall expend for the design and construction of the Mid-Term Refurbishment, as a minimum, a dollar amount equal to [**] percent of the dollar amount expended by TCM and its Concessionaires in connection with the Initial Premises Improvements (the “Minimum Mid-Term Refurbishment Amount”). Amounts expended for deferred maintenance, repairs and replacements that should previously have been performed pursuant to Section 8 below shall not be credited toward the
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Minimum Mid-Term Replacement Amount, unless otherwise approved by the Executive Director. [**]
7.7City Approval of Improvements. Prior to the construction of any improvements (including, without limitation, the TCM Initial Premises Improvements, the Concessionaire Initial Premises Improvements, the Initial Non-Premises Improvements, the Mid-Term Refurbishment and any Alterations), TCM shall comply with the “LAWA Tenant Improvement Approval Process” (said LAWA Tenant Improvement Approval Process as may be modified from time to time is referred to herein as the “Construction Approval Process”), including without limitation, the submission to City’s Commercial Development Group for approval all required plans and other information. Upon receipt of the Executive Director’s approval and any other applicable approvals, TCM shall cause the construction called for by the approved working drawings and specifications to be commenced and completed promptly. No substantial changes, additions, or alterations shall be made in said working drawings or specifications, or in the construction called for thereby, without first obtaining Executive Director’s approval in writing.
7.7.1TCM shall keep (and shall require its Concessionaires to keep) the Premises and any improvements constructed thereon free and clear of liens for labor and material expended by or for TCM or on its behalf in accordance with Section 7.15 of this Agreement.
7.7.2TCM agrees to comply with the notification and review requirements covered in Part 77 of the Federal Aviation Administration Regulations in the event any future structure or building is planned for the Premises, or in the event of any planned modification or alteration of any present or future building or structure situated on the Premises.
7.7.3Prior to the commencement of any work, TCM shall, at its own cost and expense, obtain (and shall cause its Concessionaires to obtain) all other Permits and approvals required by applicable Laws including, but not limited to Los Angeles Department of Building and Safety, Los Angeles County Department of Health and OSHA. Executive Director’s approval of the plans, specifications and working drawings for the Initial Non-Premises Improvement, the TCM Initial Premises Improvements, Concessionaire Initial Premises Improvements or any other improvements or alterations of the Premises shall create no responsibility or liability on the part of City for their completeness, design sufficiency, or compliance with all Laws and other requirements of governmental agencies or authorities. Neither City nor any City Agents shall be liable for any damage, loss, or prejudice suffered or claimed by TCM, any TCM Party or any other person or entity on account of: (a) the approval or disapproval of any plans, contracts, bonds, contractors, sureties or matters; (b) the construction or performance of any work whether or not pursuant to approved plans; (c) the improvement of any portion of the Premises or alteration or modification to any portion of the Premises; or (d) the enforcement or failure to enforce any of the covenants, conditions and restrictions contained in this Agreement.
7.8Further Provisions Regarding Design and Construction. TCM shall comply with the following requirements in connection with any construction under this Agreement.
7.8.1Design and Engineering. TCM shall, at its own cost and expense, employ competent architects, engineers and interior designers. TCM warrants that all design and construction work and services performed by or on behalf of TCM shall conform to the highest
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professional standards pertinent to the respective trade or industry. All improvements shall be designed to industry standards appropriate for a best-in-class international airport facility. TCM shall comply with City’s Design and Construction Handbook, as in effect from time to time.
7.8.2Licensed Contractors; Warranty. All construction or work shall be performed in a good and workmanlike manner in accordance with good industry practice for the type of work in question by duly licensed contractors under the supervision of a competent architect or licensed structural engineer. TCM warrants that all materials and equipment furnished will be new and of good quality unless otherwise specified, and that all workmanship will be of good quality, free from faults and defects and in conformance with the design documents approved by the City of Los Angeles Department of Building and Safety, as applicable.
7.9Alterations. TCM and its Concessionaires shall not make any improvements or alterations to any Premises (including any Unit therein) (“Alterations“) without first complying with City’s Construction Approval Process. Any unauthorized Alterations made by TCM or its Concessionaire to any Premises (including any Unit therein) shall be removed at TCM’s sole cost and expense and any damage to such Premises (including any Unit therein) shall be promptly repaired, and if not removed and repaired within thirty (30) days of demand from City, and should TCM fail to so remove such Alterations and restore such Premises (including any Unit therein), City may remove such Alterations and restore such Premises (including any Unit therein), at TCM’s sole cost and expense, and such cost [**] shall be payable to City as Additional Rent within thirty (30) days of delivery of an invoice therefor.
7.10Building Codes. All Alterations, improvements, fixtures and equipment constructed or installed by TCM or its Concessionaires in or about the Premises, including the plans and specifications therefor, shall in all respects conform to and comply with the applicable Laws (including, without limitation, ordinances, building codes, rules and regulations of the City of Los Angeles and such other authorities as may have jurisdiction over the Premises or TCM’s or its Concessionaire’s operations therein), and City Policies (as defined in Section 16.23). If and to the extent that TCM’s or its Concessionaire’s activities or proposed Alterations trigger an obligation or requirement on the part of City to make changes to the Airport (including under the ADA), TCM shall indemnify, defend, and hold harmless City and City Agents from and against any Claims arising out of such activities or Alterations. The approval by Executive Director provided above shall not constitute a representation or warranty as to such conformity or compliance, but responsibility therefor shall at all times remain in TCM.
7.11Workers’ Compensation. Prior to commencement of any such construction, TCM shall first submit to City a certificate of insurance evidencing the fact that TCM (and any relevant TCM Party) maintains workers’ compensation and employers liability coverage in the amounts and form required by the Workers’ Compensation Act and insurance Laws of the State of California. Such certificate shall include a Waiver of Subrogation naming and for the benefit of the City of Los Angeles and City Agents. Such certificate shall contain the applicable policy number and the inclusive date for same, shall bear an original signature of an authorized representative of the insurance carrier and shall also provide thereon that the insurance shall not be subject to cancellation except after notice by registered mail to the City Attorney of the City of Los Angeles at least thirty (30) days prior to the date of cancellation.
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7.12Improvement Payment and Performance Bond. In connection with the Initial Non-Premises Improvements, TCM Initial Premises Improvements, the Mid-Term Refurbishment and any other Alterations by TCM, TCM shall furnish, at its sole cost and expense, payment and performance bonds in the principal sum of the amount of the work of improvement proposed by TCM, or alternative security deposit for said amount acceptable to Executive Director. In connection with the Concessionaire Initial Premises Improvements, the Mid-Term Refurbishment and any other Alterations by Concessionaires, TCM shall cause its Concessionaires to furnish, at their respective sole cost and expense, payment and performance bonds in the principal sum of the amount of the work of improvement proposed by each such Concessionaire, or alternative security deposit for said amount acceptable to Executive Director. TCM shall comply with (and shall cause its Concessionaires to comply with) the provisions of California Civil Code Sections 3235 to 3242 or Section 3247 to 3252, as applicable to any such bond, by filing the original contract and any modifications thereto in the office of the Los Angeles County Recorder, together with the bond specified therein, and a conformed copy of such bond, filed for record as aforesaid, shall be furnished by TCM or its Concessionaires to City. If such work is being performed pursuant to a DIP Approval or a CIP Approval, TCM shall furnish such payment and performance bonds no later than the date set forth in the DIP Approval or the CIP Approval, as the case may be. If such work is not being performed pursuant to a DIP Approval or a CIP Approval or if no time is specified in the DIP Approval or the CIP Approval, such payment and performance bonds shall be furnished no later than ten (10) days prior to the commencement of such work. The payment and performance bonds shall be in substantially the same form as that of Exhibit F attached hereto (or such other form as may be reasonably prescribed from time to time by the City Attorney), be issued by a surety company satisfactory to Executive Director, and authorized and licensed to transact business in the State of California and be for the full amount stated above with the City of Los Angeles, Department of Airports, as obligee, and shall guarantee the full, faithful and satisfactory payment and performance by TCM or its Concessionaires, as the case may be, of their respective obligations to construct and install the aforementioned improvements, and shall guarantee the payment for all materials, provisions, supplies, and equipment used in, on, for, or about the performance of TCM’s (or its Concessionaires’) works of improvement or labor done thereon of any kind, and shall protect City from any liability, losses, or damages arising therefrom.
7.13Telecommunications Facilities.
7.13.1TCM, its Concessionaires and their respective Telecommunications Service Providers (as defined herein) shall not install Telecommunication Facilities (as defined herein) in Common Areas, shared space, or other respective areas of the Airport, or in currently designated or future primary or secondary minimum-points-of-entry, without prior written approval of Executive Director and any approval required as part of City’s Construction Approval Process. All such Telecommunications Facilities and services shall comply with FCC licensing regulations, with City of Los Angeles building codes, and with all other applicable Laws. All work performed in connection with the installation of any Telecommunication Facilities shall comply with the provisions of this Agreement applicable to construction projects. City may require its contractors or personnel to observe such installation or servicing to assure compliance with this Agreement. In such event, TCM shall pay to City as Additional Rent hereunder, the cost or imputed cost of such observation and compliance monitoring. For purposes of this Agreement, “Telecommunication Facilities” shall mean and include the
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installation, operation, and provisioning of telecommunications circuits, conduit, cabling, antennas, equipment, infrastructure and service connections thereto; and “Telecommunication Service Providers” shall mean and include cable and equipment installation contractors, system operators, and any entity which provides telecommunication services, such as Sprint, Verizon, AT&T, government entities, or other tenants. Prior to any installation or servicing of any Telecommunication Facilities, TCM shall submit to City (with copies to LAWA Project Management Division and Manager of LAWA Information Technology Division at 1 World Way, Room B14, Los Angeles, CA 90045) for approval documentation of each Telecommunication Facility and the infrastructure proposed to be used (collectively, “Telecom Documentation”), which Telecom Documentation shall include, but not be limited to, plans and drawings with specific routing detail, conduit types and sizes, access junction boxes, cable descriptions (type, quantity, size) per route segment, telecommunication rooms and closets used, termination block labeling, and cable pair assignments for each cable segment, and a schedule with the times and locations that require access in connection with such installation or servicing.
7.13.2TCM shall not allow the use of, and shall not sell, lease, sublet, or trade, Telecommunication Facilities or services to other users or operators at the Airport without prior written approval of Executive Director. TCM shall not use, and shall not purchase, lease, sublet or trade for, Telecommunication Facilities or services from other users or operators at the Airport without prior written approval of Executive Director.
7.13.3TCM agrees that the Telecommunications Facilities, and the installation, maintenance and operation thereof shall in no way interfere with Airport operations, or the operation of Telecommunications Facilities of City or any other tenants or occupants of the Airport. If such interference shall occur, City shall give TCM written notice thereof and TCM shall correct the same within twenty-four (24) hours of receipt of such notice. City reserves the right to disconnect TCM’s Telecommunications Facilities if TCM fails to correct such interference within twenty-four (24) hours after such notice.
7.13.4TCM shall protect, defend, indemnify and hold harmless City and City Agents from and against Claims incurred by or asserted against City or any City Agent arising out of TCM’s installation, maintenance, replacement, use or removal of TCM’s Telecommunications Facilities.
7.13.5TCM shall remove any Telecommunications Facilities installed by TCM at TCM’s sole cost and expense upon the expiration or early termination of this Agreement.
7.14Deliveries upon Completion. Within [**] of completion of the Initial Premises Improvements, the Initial Non-Premises Improvements, any Mid-Term Refurbishment and any other Alterations, TCM shall (or cause its Concessionaires to) furnish to City, at no charge: (a) a certificate from the architect(s) certifying that such improvements have been constructed in accordance with the approved plans and specifications and in strict compliance with all Laws; (b) five (5) complete sets of “record” drawings, and one complete set in Computer Aided Design (CAD) format which complies with the then current LAWA CAD standards (these drawings must include any applicable permit numbers, the structural and other improvements installed by TCM or its Concessionaires in the Premises, and the location and details of installation of all equipment, utility lines, heating, ventilating, and air-conditioning ducts and related matters); (c) duplicated receipted invoices on all materials and
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labor costs incurred; and (d) executed unconditional mechanics’ lien releases from those parties performing labor, materials or supplies in connection with all such improvements, which releases shall comply with the appropriate provisions, as reasonably determined by City, of the California Civil Code. TCM shall keep such as-built drawings current by updating the same in order to reflect thereon any changes or modifications which may be made to such improvements. Within ten (10) days after completion of any such improvements, TCM shall cause a Notice of Completion to be recorded in the office of the Los Angeles County Recorder in accordance with Section 3093 of the Civil Code of the State of California or any successor statute, and shall furnish a copy thereof to City upon such recordation. If TCM fails to do so, City may execute and file the same on behalf of TCM as TCM’s agent for such purpose, at TCM’s sole cost and expense.
7.15No Liens. TCM shall pay (and shall cause its Concessionaires to pay) when due all claims for labor or materials furnished or alleged to have been furnished to or for TCM at, on, about, or for use in the Premises, the Facility(ies) or any portion thereof. Subject to the right to bond over any such lien as set forth in this Section 7.15, TCM shall keep the Premises, the Facility(ies) and the Airport, and any interest therein, free and clear of all mechanics’ liens and all other liens from any work undertaken by or on behalf of TCM or any TCM Party. TCM shall give City immediate written notice of any lien filed against the Premises, the Airport or any interest therein related to or arising from work performed by or for TCM or any TCM Party. Additionally, TCM shall keep any City-owned improvements whether on the Premises or out-side of the Premises free and clear of any liens or other encumbrances from any work undertaken by or on behalf of TCM or any TCM Party. By way of specification without limitation, TCM shall keep the Premises free from any liens arising out of any work performed, materials furnished, or obligations incurred by or for TCM or any TCM Party, and TCM shall indemnify, defend, protect, and hold the Premises, the Airport, City and City Agents harmless against any liens and encumbrances and all Claims arising from any work performed by or on behalf of TCM or any TCM Party and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof against TCM, City, the Airport, or the Premises. In the event that TCM does not, within thirty (30) calendar days following the imposition of any such lien, cause such lien to be released of record by payment or posting of a bond in form and amount satisfactory to Executive Director in its good faith business judgment, City shall have in addition to all other remedies provided herein and by law, the right, but not the obligation to cause, upon twenty (20) business days prior written notice to TCM, the same to be released by such means as it shall deem proper, including payment in satisfaction of any Claim giving rise to such lien. All such sums paid by City and all expenses incurred by it in connection therewith (including, without limitation, attorneys’ fees (including, without limitation, the imputed fees of City Attorneys)) [**] shall be payable to City by TCM as Additional Rent within thirty (30) days after written demand therefor. TCM shall give City not less than ten (10) days’ prior written notice of the commencement of the Initial Premises Improvements or any other initial or subsequent improvements in or about the Premises, and City shall have the right to post notices of non-responsibility in or about the Premises as provided by law. In addition, City shall have the right to require that TCM pay City’s attorneys’ fees and disbursements (including, without limitation, the imputed fees of City Attorneys), court costs and other costs in defending any such action if City is named as a party to any such action, the lien encumbers any portion or interest in the Airport or if City elects to defend any such action or lien. Nothing in this Section shall be construed to place any obligations upon TCM
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with respect to liens, loans, or mortgages placed upon the Premises by City, its Department of Airports, its Board, City officers, agents, or employees.
7.16Ownership of Improvements. During the Primary Term, TCM shall have rights to the ownership of the TCM Initial Premises Improvements installed on the Premises pursuant to this Agreement; provided, however, if TCM’s rights with respect to the Premises (or any portion thereof) are terminated for any reason, subject to the provisions of Article XIV below, City shall have all rights to the ownership of the TCM Initial Premises Improvements and any other improvements within the Premises (or such terminated portion of the Premises), and title to all such improvements shall automatically vest in City as of the date of such termination. TCM further acknowledges that, in connection with any such termination, City shall have all rights to the ownership of the Concessionaire Initial Premises Improvements and any other improvements within a Unit with respect to any Unit Concession Agreement that is also being terminated.
VIIIMAINTENANCE AND REPAIR.
8.1Maintenance and Repair. TCM acknowledges and agrees that, except to the extent expressly set forth to the contrary in this Section 8, City shall have no duty to maintain, repair or replace the Premises (or any part thereof including any Unit there), or the improvements located therein and thereon (whether or not such portion of the Premises requiring repairs or replacements, or the means of repairing or replacing the same, are reasonably or readily accessible to TCM, and whether or not the need for such repairs or replacements occurs as a result of TCM’s or its Concessionaires’ use, any prior use, or the age of such portion of the Premises). TCM shall and shall require its Concessionaires, at all times and at their respective expense, to keep and maintain the Premises, including, without limitation, the exterior façade of each Unit within the Premises separating such Unit from the Common Areas of the Facility (including the external face thereof, all windows, doors and display areas, and all finishes thereon), all mechanical room equipment such as, but not limited to, heat exchangers, fans, controls and electric panels, and all of the structural and other improvements installed within the Premises (and at each Unit therein) together with all fixtures, equipment and personal property therein, in good repair and in a clean and orderly condition and appearance and shall keep the areas immediately adjacent to the Premises (including the exits and entrances of each Unit within the Premises) clean and orderly and free of obstructions. [**] Upon any request of Executive Director and annually, in connection with the annual update of the Business and Operations Plan, TCM shall deliver to City an annual maintenance report with a copy of TCM’s Maintenance Records for the year just ended.
8.2Cleaning and Routine Upkeep. TCM, at its sole cost and expense, shall have primary responsibility for all maintenance, cleaning and routine upkeep of any TCM Common Areas within the Premises (with TCM being permitted to charge the Concessionaires a fee (without administrative mark up or profit) for such maintenance, cleaning and routine upkeep) and shall keep such TCM Common Areas within the Premises in a good and clean condition at all times. Notwithstanding the foregoing, City agrees to reimburse TCM on a monthly basis for the actual cost (without administrative mark up or profit) of the routine cleaning and upkeep of any children’s play area(s) located within the TCM Common Areas. The manner and level of service with respect to such cleaning and upkeep of the children’s play area(s) shall be subject to the prior written approval of the Executive Director and set forth in the Business and Operations Plan. TCM shall require the Concessionaires to be responsible for the cleaning, maintenance,
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and routine upkeep of their respective Units and to keep their respective Units in good condition at all times
8.3Maintenance of Plumbing. TCM shall (and shall require its Concessionaires to) be responsible for the maintenance, repair and replacement of all plumbing, piping and drains within the Premises (including each Unit therein). TCM is responsible for (and shall require its Concessionaires to be responsible for) all material that is deposited in the plumbing system from each Unit and for cleaning the grease traps within any Unit. TCM is responsible for (and shall require its Concessionaires to be responsible for) the maintenance, repair and replacement of all sewer lines from the Premises (including each Unit therein) to the point of connect. TCM is responsible for (and shall require its Concessionaires to be responsible for) the repair and maintenance of all domestic water lines, hot and cold, from the point of connection of the Department of Airports water meter throughout the Premises (including each Unit therein). If TCM (or its Concessionaire) fails to maintain the plumbing, piping and drain system or places liquid, grease, debris, and other materials that contribute to stoppage or damage to the Airport’s plumbing, and City elects to make repairs thereto, TCM will be billed for the cost thereof [**] to be paid by TCM to City within thirty (30) days of written demand. TCM shall be entitled to charge its Concessionaires for the costs of such maintenance, repair and replacement as well as any costs for stoppage or damage to the Airport’s plumbing billed to TCM by City.
8.4City May Repair. In the event TCM fails to accomplish (or to require its Concessionaires to accomplish) any such nonstructural repairs, replacements, rebuilding, redecorating or painting required hereunder (including any preventative maintenance or emergency repairs) within a period of twenty (20) days after written notice from Executive Director so to do, or fails to diligently repair, replace, rebuild, redecorate or paint all portions of the Premises (including each Unit therein) required to be repaired, replaced, rebuilt, redecorated or painted by TCM (or it Concessionaires) pursuant to its approved maintenance schedule, City shall have the right (but not the obligation), at its option, and in addition to all other remedies which may be available to it, to repair, replace, rebuild, redecorate or paint any such portion of the Premises (including any Unit therein) included in said notice, and the cost thereof [**] shall be paid by TCM to City as Additional Rent within thirty (30) days of written demand. Notwithstanding anything to the contrary contained in this Agreement, the performance of such maintenance, repair or replacement by City on TCM’s behalf shall in no event be construed as a waiver of TCM’s maintenance, repair and replacement obligations under this Agreement.
8.5Right to Enter Premises. City shall have the right to enter upon the Premises (including any Unit therein) at all reasonable times to make such repairs, alterations and replacements as may, in the opinion of Executive Director, be deemed necessary or advisable and, from time to time, to construct or install over, in, under or through the Premises (including any Unit therein) new lines, pipes, mains, wires, conduits and equipment (regardless of whether such construction by City relates to operations within the Premises or outside of the Premises); provided, however, that City shall use commercially reasonable efforts to minimize the interference caused by such repair, alteration, replacement or construction with the use of the Premises by TCM or its Concessionaires; and provided, further, that nothing herein shall be construed as relieving TCM of any obligation imposed upon it herein to maintain the Premises
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(including the Units therein) and the improvements and utility facilities therein. City shall have the right to enter the Premises (including any Unit therein) at any time to maintain or repair emergency systems when loss of life or damage to property may potentially result. Notwithstanding anything to the contrary contained in this Section 8.5, if during the performance of such work by City, any Unit or related TCM Common Area necessary for the operation of a Unit is required to be closed for two (2) or more complete and consecutive days (unless such closure is the result of TCM’s failure to perform its obligations under this Agreement), then the MAG allocated for any such Unit shall be equitably abated for the period commencing on the 3rd day following the date that any such Unit is so forced to close and shall continue until the interference causing such closure of any such Unit has ceased.
8.6Provision of Utilities. Throughout the term of this Agreement, to the extent not provided by City at City’s election, TCM shall, at its sole cost and expense, take whatever action is required to obtain all utility service necessary for the operation of the Premises (including all Units therein), and TCM shall make the necessary arrangements with all utility providers to bring all required water, sanitary sewer, telephone, electricity, gas and any and all other utilities lines to and within the Premises (and the Units therein) in accordance plans and specifications approved by City. City shall have the right, but not the obligation or responsibility, for the use of TCM or for the use of others at Airport, to maintain existing and future utility systems or portions thereof on the Premises (including any Unit therein), including, without limitation, systems for the supply of heat and electricity and for the furnishing of fire alarm, fire protection, sprinkler, air conditioning, telephone, telegraph, teleregister and intercommunication services, including lines, pipes, mains, wires, conduits and equipment connected without appurtenant to all such systems. TCM shall reimburse City for its pro-rata share of costs of such maintenance. Within each Facility, TCM’s pro-rata share shall be based on the ratio of the square footage of the Premises in the Facility to the square footage of all premises in the Facility using said utilities, or on some other reasonable and appropriate methodology or basis as determined by the Executive Director. Notwithstanding any other provision of this Agreement, City shall not be liable or responsible for any unavailability, failure, stoppage, interruption or shortage of any utilities or other services, however or by whom caused, except for the provision of MAG abatement as provided in the following sentence. Notwithstanding anything to the contrary contained in this Section 8.6, if any utility to the Premises or any portion thereof (including any Units located therein) is supplied by or through City, and due to City’s sole negligence or intentional act, such utility to the Premises or any portion thereof (including any Units located therein) is interrupted to the extent that any Unit or related TCM Common Area necessary for the operation of a Unit is required to be closed for two (2) or more complete and consecutive days, then the MAG allocated for any such Unit shall be abated for the period commencing on the 3rd day following the date that any such Unit is forced to close and shall continue until the applicable utilities causing such forced closure are restored to the affected portion of the Premises. TCM shall have the right to pass through such costs and expenses on a pro-rata basis to its Concessionaires.
8.7Pest Control. TCM shall be solely responsible for a pest-free environment within the TCM Common Areas, TCM Storage Premises and Units located within the Premises by maintaining its own pest control services, in accordance with the most modern and effective control procedures. All materials used in pest control shall conform to applicable Laws. All controlled substances utilized shall be used with all precautions to obviate the possibility of
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accidents to humans, domestic animals and pets. Whenever City deems that pest control services must be provided to a building or area that includes TCM’s Premises under this Agreement, TCM shall pay for the costs of services provided for the Premises under this Agreement. TCM shall have the right to pass through such costs and expenses on a pro-rata basis to its Concessionaires.
8.8Evidence of Payment. In any suit, action or proceeding of any kind between the parties hereto, any receipt showing the payment of any sum(s) by City for any work done or material furnished shall be prima facie evidence against TCM that the amount of such payment was necessary and reasonable. Should Executive Director elect to use City operating and maintenance staff in making any repairs, replacements or alterations and to charge TCM with the cost of same, any timesheet of any employee of City showing hours of labor or work allocated to any such repair, replacement or alteration, or any stock requisition of City showing the issuance of materials for use in the performance thereof, shall be prima facie evidence against TCM that the amount of such charge was necessary and reasonable. Notwithstanding the foregoing, TCM shall have the right to dispute the reasonableness of any such charge and in the event of any such dispute, the parties shall negotiate in good faith to seek a mutually satisfactory resolution within twenty (20) business days.
8.9Prevailing Wage. Maintenance work performed on City’s property will require payment of prevailing wages, if applicable. TCM is obligated to make the determination of whether the payment of prevailing wages is applicable, and TCM shall be bound by and comply with applicable provisions of the California Labor Code and Federal, State, and local laws related to labor. TCM shall indemnify, defend and pay or reimburse City for any damages, penalties or fines (including, but not limited to, reasonable attorney's fees and costs of litigation) that City incurs, or pays, as a result of noncompliance with applicable prevailing wage laws in connection with the maintenance work performed by TCM or its Concessionaires in connection with this Agreement.
IXTERMINATION FOR CONVENIENCE; TERMINATION PAYMENTS; QUALIFIED INVESTMENTS.
9.1Termination for Convenience. In the event that the Executive Director, in his or her sole discretion, at any time determines that efficient or convenient Airport operations require the use of any portion of the Premises, City shall have the absolute right to terminate this Agreement with respect to such portion of the Premises (a “Termination for Convenience”), upon not less than one hundred eighty (180) days’ prior written notice to TCM (a “Convenience Termination Notice”). In connection with any Termination for Convenience, City (upon the determination of the Executive Director) shall have the right to terminate any Unit Concession Agreement within the portion of the Premises so terminated by City. The Convenience Termination Notice shall set forth a description of the portion of the Premises that is the subject of the Termination for Convenience (the “Terminated Premises”) and shall set forth the effective date of such termination (“Convenience Termination Date”). On or before the Convenience Termination Date, TCM shall, with respect to the Terminated Premises, perform its removal and surrender obligations set forth in this Agreement (including, without limitation, TCM’s obligations set forth in Section 2.4 above). In the event of a Termination for Convenience under this Section 9.1, City shall pay to TCM an amount equal to the Convenience Termination Payment (as defined in Section 9.2.1 below) within thirty (30) days following the Convenience Termination Compliance Date (as defined in Section 9.2.2 below). TCM
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specifically acknowledges that this Termination for Convenience provision is a material inducement to City to allow TCM to enter into this Agreement. In the event of a Termination for Convenience, the MAG shall be equitably adjusted to reflect the loss of the square footage in the Units within the Terminated Premises, such adjustment to be based on the then current Minimum Per Square Foot MAG Amount as of the Convenience Termination Date.
9.2Termination Payment. In the event of a Termination for Convenience under Section 9.1 above, TCM shall receive from City a payment in respect of such termination as set forth in Section 9.2.1 below; provided, however, City shall have the right to offset against the amount of such termination payment any amounts which may then be due and payable by TCM to City under this Agreement; and provided, further, that City shall have the right to withhold from such termination payment as security for the performance of any other uncured Default by TCM (i) an amount equal to the estimated damage or loss to City as the result of such uncured Default as reasonably estimated by the Executive Director or (ii) if the damage or loss to City as the result of such uncured Default cannot be reasonably estimated in monetary terms, an amount equal to ten percent (10%) of such termination payment. In the event of an Early Termination under Section 2.3 above, TCM shall receive from City a payment in respect of such termination as set forth in Section 9.2.3 below; provided, however, City shall have the right to offset against the amount of such termination payment any amounts which may then be due and payable by TCM to City under this Agreement; and provided, further, that City shall have the right to withhold from such termination payment as security for the performance of any other uncured Default by TCM (i) an amount equal to the estimated damage or loss to City as the result of such uncured Default as reasonably estimated by the Executive Director or (ii) if the damage or loss to City as the result of such uncured Default cannot be reasonably estimated in monetary terms, an amount equal to ten percent (10%) of such termination payment. TCM acknowledges that any amounts received by TCM pursuant to either Section 9.2.1(d) below or Section 9.2.3(d) below shall be paid by TCM to the applicable Concessionaire within the time provided in Section 9.2.5 below; provided, however, TCM shall be entitled to withhold remittance to any Concessionaire at any time such Concessionaire is in default under the Unit Concession Agreement until such default has been cured to the satisfaction of TCM as determined in its reasonable discretion. In addition, TCM shall have the right to offset any amounts which may be due and payable by any Concessionaire to TCM from the amounts otherwise payable to any Concessionaire by TCM under this Section 9.2 (which may include retaining the entire amount should the Concessionaire owe TCM in excess of the amount to be paid to any such Concessionaire pursuant to this Section 9.2. TCM’s right to any such termination payment shall be conditioned upon TCM’s (and any applicable Concessionaire’s) execution and delivery to City of a general release of claims by such party, which release shall be in a form satisfactory to City (the “Termination Release”).
9.2.1Termination Payment – Termination for Convenience under Section 9.1. The term “Convenience Termination Payment” shall mean an amount equal to the sum of the following amounts:
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TCM Initial Premises Improvements, Mid-Term Refurbishment or Other Alterations were placed in service and ending on the Expiration Date, using an interest rate of nine percent (9%) per annum (herein, “TCM’s Section 9.2.1 (a) Un-Amortized Qualified Investment Amount”), provided, however, that TCM’s Section 9.2.1(a) Un-Amortized Qualified Investment Amount shall be reduced by that portion of the TCM Improvement Allowance Offset (as defined in Section 9.2.6 below) that relates to the Terminated Premises;
9.2.2Convenience Termination Compliance Date. The term “Convenience Termination Compliance Date” shall mean the date that all of the following have occurred: (i) TCM and any Concessionaires whose Unit Concession Agreements have been terminated as the result of such termination have vacated and surrendered the Terminated Premises in accordance with the surrender and removal obligations under this Agreement; (ii) if required by the Executive Director in his or her sole discretion, City has received the Termination Release signed by TCM and any terminated Concessionaires (provided, however, that payment to TCM of TCM’s share of any Convenience Termination Payment shall not be withheld or delayed solely as a result of any such Concessionaire’s failure to provide such Concessionaire’s Termination Release); and (iii) the Convenience Termination Date has occurred.
9.2.3Termination Payment -- Early Termination under Section 2.3. The term “Early Termination Payment” shall mean an amount equal to the sum of the following amounts:
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have not been depreciated as of the Early Termination Expiration Date, with the depreciation of each such Qualified Investment being calculated over a depreciation period beginning on the respective dates that such TCM Initial Premises Improvements, Mid-Term Refurbishment or Other Alterations were placed in service and ending on the Expiration Date, and with such depreciation calculated on a straight-line basis with no residual value (herein, “TCM’s Section 9.2.3(a) Un-Depreciated Qualified Investment Amount”), provided, however, that TCM’s Section 9.2.3(a) Un-Depreciated Qualified Investment Amount shall be reduced by the TCM Improvement Allowance Offset;
9.2.4Early Termination Compliance Date. The term “Early Termination Compliance Date” shall mean the date that all of the following have occurred: (i) TCM and any Concessionaires whose Unit Concession Agreements have been terminated as the result of such termination have vacated and surrendered the Premises in accordance with the surrender and removal obligations under this Agreement; (ii) if required by the Executive Director in his or her sole discretion, City has received the Termination Release signed by TCM and any terminated Concessionaires (provided that payment to TCM of TCM’s share of any Early Termination Payment shall not be withheld or delayed solely as a result of any such Concessionaire’s failure to provide such Concessionaire’s Termination Release); and (iii) the Early Termination Expiration Date has occurred.
9.2.5TCM’s Obligation to Pay Concessionaires. Subject to its rights to withhold or offset payments to Concessionaires in accordance with Section 9.2, TCM agrees that, within thirty (30) days following receipt of any Early Termination Payment or Convenience Termination Payment, TCM shall pay to its Concessionaires that portion of such payments that are related to such Concessionaires’ un-amortized Qualified Investments.
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9.2.6TCM Improvement Allowance Offset. The term “TCM Improvement Allowance Offset” shall mean the aggregate amount by which the Base Rent payable by TCM has been reduced over the term of this Agreement (i.e. through the Convenience Termination Date or the Early Termination Date, as applicable) as a result of the application of the TCM Improvement Allowance under Section 4.1.3 above.
9.3Qualified Investments Defined. Subject to the limitation and conditions set forth in Section 9.4 below, the term “Qualified Investments” shall mean the following amounts described below in this Section 9.3 (each, individually, a “Qualified Investment”):
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eligible to be a Qualified Investment in such amount as is approved by the Executive Director (“Other Alterations”).
9.4Additional Conditions Applicable to Qualified Investments. With respect to any expenditure described in Section 9.3 above, such expenditure must satisfy the following additional requirements and conditions in order to be classified as a Qualified Investment:
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whose voting securities are registered with the Securities and Exchange Commission and publicly traded on a regular basis, then only such shareholder of TCM or such Concessionaire having an ownership interest greater than [**] percent shall be deemed an “Affiliate”). The term “control” (including the terms controlling, controlled by and under common control with) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through ownership of voting securities, by contract or otherwise.
9.5No Other Compensation. TCM acknowledges and agrees that, except for the Early Termination Payment in connection with an Early Termination and the Convenience Termination Payment in connection with a Termination for Convenience, TCM and its Concessionaires have absolutely no right to any payment, claim, damage, offset or other compensation in connection with the termination of this Agreement as to all or any part of the Premises. Without limiting the generality of the foregoing, no payment or other compensation shall be payable to TCM in connection with the termination of this Agreement as a result of TCM’s Default.
XAIRPORT CONSTRUCTION; AIRPORT OPERATIONS.
10.1Airport Construction; Airport Operations. City reserves the right to further develop or improve the landing area of Airport or any other portion of the Airport, as it sees fit, regardless of the desires or view of TCM, and without interference or hindrance by TCM. TCM recognizes and agrees that City, from time to time during the term of this Agreement, may construct, cause to be constructed, or permit construction, of City-approved improvements of various sizes and complexity. TCM further recognizes that such construction and other security related restrictions may restrict access to and may interfere with the quiet enjoyment of the Premises and the amount of revenue generated from the Premises. TCM agrees that City shall not be liable for losses or damages arising from disruptions caused by City-approved construction or other restrictions affecting access to the Premises, and hereby waives any Claims against City and City Agents arising therefrom. Notwithstanding the foregoing, in the event that access to any Unit or to any portion of a related TCM Common Area is so restricted or materially impaired to the extent that any Unit or related TCM Common Area necessary for the operation of a Unit is required to be closed for two (2) or more complete and consecutive days, then the MAG allocated for any such Unit shall be equitably abated for the period commencing on the 3rd day following the date that any such Unit is forced to close and shall continue until the date access to the Unit or related TCM Common Area is reopened so that concession operations may be recommenced in any such Unit. City shall endeavor to use commercially reasonable efforts to keep TCM informed of construction plans that may materially and adversely impact the operations at the Premises. There is also hereby reserved to City, its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Premises. This public right of flight shall include the right to cause in said airspace any noise inherent in the operation of any aircraft used for navigation or flight through
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the said airspace or landing at, taking off from, or operating at the Airport. TCM agrees not to make any claim or institute legal action against City under any theory of recovery for any interference with TCM’s use and enjoyment of the Premises which may result from noise emanating from the operation of aircraft to, from, or upon the Airport, and TCM hereby waives any Claims against City and City Agents arising therefrom.
10.2No Right to Temporary Premises. Temporary disruptions to TCM’s (or its Concessionaires) operations, including restricted access to Facility during any construction or security alert, shall not entitle TCM (or its Concessionaires) to a temporary location elsewhere or any other compensation (except for the abatement of MAG as provided in Section 10.1 above).
XITERMINATION/CANCELLATION.
11.1Defaults. The occurrence of any one of the following events shall constitute a default on the part of TCM (“Default”):
11.1.1Abandonment. The abandonment of the Premises within the meaning of California Civil Code Section 1951.3;
11.1.2Failure to Pay Rent. Failure to pay any installment of Rent or any other monies due and payable hereunder, said failure continuing for a period of ten (10) business days after the same is due;
11.1.3Assignment for Creditors. A general assignment for the benefit of creditors by TCM or by Westfield America, Inc., a Missouri corporation (herein, “Guarantor”), or by any other guarantor or surety of TCM’s obligations hereunder ;
11.1.4Filing of Bankruptcy Petition. The filing of a voluntary petition in bankruptcy by TCM or its Guarantor, the filing by TCM or its Guarantor of a voluntary petition for an arrangement, the filing by or against TCM or its Guarantor of a petition, voluntary or involuntary, for reorganization, or the filing of an involuntary petition by the creditors of TCM or its Guarantor, said involuntary petition remaining undischarged for a period of one hundred eighty (180) days;
11.1.5Attachment. Receivership, attachment, or other judicial seizure of substantially all of TCM’s assets at the Premises, such attachment or other seizure remaining undismissed or undischarged for a period of ninety (90) days after the levy thereof;
11.1.6Death; Dissolution. Death or disability of TCM or its Guarantor, if TCM or such Guarantor is a natural person, or the failure by TCM or its Guarantor to maintain its legal existence, if TCM or such Guarantor is a corporation, partnership, limited liability company, trust or other legal entity;
11.1.7Failure to Deliver Ancillary Documents. Failure of TCM to execute and deliver to City any estoppel certificate, subordination agreement, report (including, without limitation, reports required under Section 4.7), financial statement or other document required under this Agreement within the time periods and in the manner provided in this Agreement,
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where such failure remains uncured for a period of [**] following written notice by City to TCM;
11.1.8Incomplete Records. TCM fails to maintain adequate books and records and accounts reflecting its business as required hereunder (including without limitation, books and records and information regarding TCM Revenues, and the costs of construction for the Initial Non-Premises Improvements, the TCM Initial Premises Improvements, the Concessionaire Initial Premises Improvements or the Mid-Term Refurbishment);
11.1.9Transfers. An assignment or sublease, or attempted assignment or sublease, of this Agreement or any other Transfer of TCM’s interest under this Agreement, in whole or in part, by TCM contrary to the provision of Section 14 without the prior written consent of City as required hereunder;
11.1.10Faithful Performance Guarantee. Failure of TCM to provide and maintain the Faithful Performance Guarantee as required under this Agreement for a period of ten (10) business days after receipt of written notice from City of such failure;
11.1.11Other Defaults. A default under any other agreement with the City of Los Angeles Department of Airports beyond any applicable notice and cure period under such agreement;
11.1.12General Non-Monetary Defaults. Failure in the performance of any of TCM’s covenants, agreements or obligations hereunder (except those failures specified as events of Default in Sections 11.1.1, 11.1.2, 11.1.4, 11.1.5, 11.1.7, 11.1.10, 11.1.13, 11.1.15, 11.1.16 herein or any other subsections of this Section 11, which shall be governed by the notice and cure periods set forth in such other subsections), which failure continues for thirty (30) days after written notice thereof from City to TCM, provided that, if TCM has commenced such cure within such thirty (30) day period, and has exercised reasonable diligence to cure such failure and such failure cannot be cured within such thirty (30) day period despite reasonable diligence, TCM shall not be in Default under this Section 11.1.12 so long as TCM thereafter diligently and continuously prosecutes the cure without interruption to completion and actually completes such cure within one hundred twenty (120) days after the giving of the aforesaid written notice to the extent such cure can reasonably be completed within such one hundred twenty (120) day period;
11.1.13[**]
11.1.14Termination of Insurance. Any insurance required to be maintained by TCM pursuant to this Agreement shall be canceled or terminated or shall expire or be reduced or materially changed, except as permitted in this Agreement, and TCM fails to obtain replacement insurance within [**] after receipt of written notice from City of the failure to carry the proper insurance coverage required of TCM hereunder;
11.1.15Liens. Any failure by TCM to discharge any lien or encumbrance placed on the Premises, the Airport or any part thereof in violation of this Agreement within thirty (30) days after the date that TCM has received actual notice that such lien or encumbrance is filed or recorded against the Premises, the Airport or any part thereof;
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11.1.16Revocation of Licenses. An act occurs which results in the suspension or revocation of the rights, powers, licenses, permits and authorities necessary for the conduct and operation of the business of TCM authorized herein for a period of more than sixty (60) days;
11.1.17Hazardous Materials. Any failure by TCM to promptly remove, abate or remedy any Hazardous Materials located in, on or about the Premises or the Airport in connection with any failure by TCM to comply with TCM’s obligations under Section 15 to the extent required by any applicable Hazardous Materials Laws; and
11.1.18[**]
TCM agrees that any notice given by City pursuant to this Section 11 shall satisfy the requirements for notice under California Code of Civil Procedure Section 1161, and City shall not be required to give any additional notice in order to be entitled to commence an unlawful detainer proceeding.
11.2City’s Remedies.
11.2.1Termination. In the event of any Default by TCM and the failure of TCM to cure the same during any applicable notice and cure periods as provided in this Agreement, then in addition to any other remedies available to City at law or in equity and under this Agreement, City may terminate this Agreement immediately and all rights of TCM hereunder by giving written notice to TCM of such intention to terminate. If City shall elect to so terminate this Agreement, then City may recover from TCM:
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As used in subsections (1) and (2) above, the “worth at the time of award” is computed by allowing interest at an annual rate equal to seven and one-half percent (7.5%) per annum or the maximum rate permitted by law, whichever is less. As used in subsection (3) above, the “worth at the time of award” is computed by discounting such amount at the discount rate of Federal Reserve Bank of San Francisco at the time of award, plus one percent (1%).
TCM hereby waives for TCM and for all those claiming under TCM all right now or hereafter existing to redeem by order or judgment of any court or by any legal process or writ, TCM’s right of occupancy of the Premises after any termination of this Agreement, specifically, TCM waives redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 and 1179, or under any other pertinent present or future Laws, in the event TCM is lawfully evicted or City takes lawful possession of the Premises by reason of any Default of TCM hereunder.
11.2.2Continuation of Agreement. In the event of any Default by TCM, then in addition to any other remedies available to City at law or in equity and under this Agreement, City shall have the remedy described in California Civil Code Section 1951.4, and the following provision from such Civil Code Section is hereby repeated: “The Lessor has the remedy described in California Civil Code Section 1951.4 (lessor may continue lease in effect after lessee’s breach and abandonment and recover rent as it becomes due, if Lessee has right to sublet or assign, subject only to reasonable limitations).” In addition, City shall not be liable in any way whatsoever for its failure or refusal to relet the Premises. For purposes of this Section 11.2.2, the following acts by City will not constitute the termination of TCM’s right to possession of the Premises:
Even if TCM has abandoned the Premises, this Agreement shall continue in effect for so long as City does not terminate TCM’s right to possession, and City may enforce all its rights and remedies under this Agreement, including, without limitation, the right to recover rent as it becomes due. Any such payments due City shall be made upon demand therefor from time to time and TCM agrees that City may file suit to recover any sums falling due from time to time. Notwithstanding the exercise by City of its right under this Section to continue the Agreement without termination, City may do so without prejudice to its right at any time thereafter to terminate this Agreement in accordance with the other provisions contained in this Section.
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11.2.3Re-entry. In the event of any Default by TCM, City shall also have the right, with or without terminating this Agreement, in compliance with applicable law, to re-enter the Premises, by force if necessary, and remove all persons and property from the Premises; such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of TCM.
11.2.4Reletting. In the event that City shall elect to re-enter as provided in Section 11.2.3 or shall take possession of the Premises pursuant to legal proceeding or pursuant to any notice provided by law, then if City does not elect to terminate this Agreement as provided in Section 11.2.1, City may from time to time, without terminating this Agreement, relet the Premises or any part thereof for such term or terms and at such rental or rentals and upon such other terms and conditions as City in its sole discretion may deem advisable with the right to make alterations and repairs to the Premises in City’s sole discretion. In the event that City shall elect to so relet, then rentals received by City from such reletting shall be applied in the following order: (a) to reasonable attorneys’ fees incurred by City as a result of a Default and costs in the event suit is filed by City to enforce such remedies; (b) to the payment of any indebtedness other than Rent due hereunder from TCM to City; (c) to the payment of any costs of such reletting; (d) to the payment of the costs of any alterations and repairs to the Premises; (e) to the payment of Rent due and unpaid hereunder; and (f) the residue, if any, shall be held by City and applied in payment of future Rent and other sums payable by TCM hereunder as the same may become due and payable hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of Rent hereunder, be less than the Rent payable during the month by TCM hereunder, then TCM shall pay such deficiency to City. Such deficiency shall be calculated and paid monthly. TCM shall also pay to City, as soon as ascertained, any costs and expenses incurred by City in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
11.2.5Termination. No re-entry or taking of possession of the Premises by City pursuant to this Section 11.2 shall be construed as an election to terminate this Agreement unless a written notice of such intention is given to TCM or unless the termination thereof is decreed by a court of competent jurisdiction. Notwithstanding any reletting without termination by City because of any Default by TCM, City may at any time after such reletting elect to terminate this Agreement for any such Default.
11.2.6Cumulative Remedies. The remedies herein provided are not exclusive and City shall have any and all other remedies provided herein or by law or in equity including, without limitation, any and all rights and remedies of City under California Civil Code Section 1951.8, California Code of Civil Procedure Section 1161 et seq., or any similar, successor or related provision of applicable Laws.
11.2.7No Surrender. No act or conduct of City, whether consisting of the acceptance of the keys to the Premises, or otherwise, shall be deemed to be or constitute an acceptance of the surrender of the Premises by TCM prior to the expiration of the Term, and such acceptance by City of surrender by TCM shall only flow from and must be evidenced by a written acknowledgment of acceptance of surrender signed by City. The surrender of this Agreement by TCM, voluntarily or otherwise, shall not work a merger unless City elects in writing that such merger take place, but shall operate as an assignment to City of any and all existing Unit Concession Agreements or subleases, or City may, at its option, elect in writing to
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treat such surrender as a merger terminating TCM’s estate under this Agreement, and thereupon City may terminate any or all such Unit Concession Agreements or subleases by notifying the Concessionaire or sublessee of its election so to do within thirty (30) days after such surrender.
11.2.8City’s Lien. In addition to any statutory lien City has, TCM hereby grants to City a continuing security interest for all sums of money becoming due hereunder upon personal property of TCM situated on or about the Premises and such property will not be removed therefrom without the consent of City until all sums of money then due City have been first paid and discharged. If a Default occurs under this Agreement, City will have, in addition to all other remedies provided herein or by law, all rights and remedies under the Uniform Commercial Code, including, without limitation, the right to sell the property described in this Section 11.2.8 at public or private sale upon fifteen (15) days’ notice to TCM. This contractual lien will be in addition to any statutory lien for rent.
11.2.9TCM’s Waiver of Redemption. TCM waives redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 and 1179, or under any other pertinent present or future Laws, in the event TCM is lawfully evicted or City lawfully takes possession of the Premises by reason of any Default of TCM hereunder.
11.3Right to Remove Equipment. Subject to the provisions of Article VII and its subsections herein and Section 11.2.8, TCM shall have the right to remove its equipment, supplies, furnishings, inventories, removable fixtures and other trade fixtures and personal property from the Premises. If TCM fails to remove said property, said property shall be considered abandoned and City may dispose of same as it sees fit.
11.4Surrender to be in Writing. No agreement of surrender or to accept a surrender shall be valid unless acknowledged in writing by Executive Director. Neither the doing nor omission of any act or thing by any of the officers, agents or employees of City shall be deemed an acceptance of a surrender of the Premises utilized by TCM under this Agreement.
11.5Additional Rights of City. City, upon termination or cancellation of this Agreement, or upon reentry, regaining or resumption of possession of the Premises, may occupy the Premises and shall have the right to permit any person, firm or corporation to enter upon the Premises and use the same. Such occupation by others may be of only a part of the Premises, or the whole thereof or a part thereof together with other space, and for a period of time the same as or different from the balance of the term remaining hereunder, and on terms and conditions the same as or different from those set forth in this Agreement. City shall also have the right to repair or to make such structural or other changes in the Premises as are necessary in its judgment to maintain the suitability thereof for uses and purposes similar to those granted under this Agreement.
11.6Acceptance Is Not a Waiver. No acceptance by City of the fees and charges for other payments specified herein, in whole or in part, and for any period or periods, after a Default of any of the terms, covenants and conditions to be performed, kept or observed by TCM, other than the Default in the payment thereof, shall be deemed a waiver of any right on the part of City to cancel or terminate this Agreement on account of such Default.
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11.7Waiver Is Not Continuous. No waiver by City at any time of any Default on the part of TCM in the performance of any of the terms, covenants or conditions hereof to be performed, kept or observed by TCM shall be or be construed to be a waiver at any time thereafter by City of any other or subsequent default in performance of any of said terms, covenants or conditions.
11.8Waiver of Redemption and Damages. TCM hereby waives any and all rights of redemption granted by or under any present or future law or statute in the event it is lawfully dispossessed for any cause, or in the event City obtains or retains possession of the Premises in any lawful manner.
11.9Survival of TCM’s Obligations. In the event this Agreement is terminated or canceled by City, or in the event City reenters, regains or resumes possession of the Premises, all of the obligations of TCM hereunder shall survive and shall remain in full force and effect for the full term of this Agreement, other than those obligations of TCM which expressly survive the expiration or earlier termination of this Agreement, which obligations shall survive the expiration or earlier termination of this Agreement for a period of time as may be set forth in any applicable statute of limitations.
11.10Cancellation or Termination By TCM. This Agreement may be cancelled or terminated by TCM by giving a thirty (30) day written notice to City upon the happening of one or more of the occurrences specified in Sections 11.10.1 through 11.10.3.
11.10.1Permanent Abandonment. The permanent abandonment of Airport’s passenger terminals for use by airlines or the permanent removal of all certificated passenger airline service from Airport for a period in excess of thirty (30) consecutive days;
11.10.2Material Restriction of Operation. The lawful assumption by the United States government, or any authorized agency thereof, of the operation, control or use of Airport, or any substantial part thereof, in such manner as to materially restrict TCM from operating thereon for a period of at least ninety (90) consecutive days; or
11.10.3Federally-Required Amendments. Any exercise of authority as provided in Section 16.8 hereof which shall so interfere with TCM’s use and enjoyment of the Premises as to constitute a termination, in whole or in part, of this Agreement by operation of law in accordance with the Laws of the United States.
11.11Damaged Improvements. In the event that the structural or other improvements or furnishings and supplies constructed or installed by TCM in any on or all of the Premises are damaged or destroyed, in whole or in part, from any cause whatsoever other than due to the gross negligence or intentional misconduct of City or the City Agents, TCM shall forthwith proceed with the removal of the debris and damaged or destroyed structural or other improvements, equipment, furnishings and supplies and thereafter shall proceed with all dispatch with the reconstruction work necessary to restore the damaged or destroyed Premises to the condition they were in prior to the occurrence of such damage or destruction and all costs and expense incurred in connection therewith shall be paid by TCM.
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11.12Service During Removal. Upon the termination, cancellation or expiration of this Agreement, and under circumstances permitting TCM to remove from the Premises removable property belonging to TCM, TCM will only be allowed to remove such property from in accordance with a transition plan approved in advance by the Executive Director. TCM will fully cooperate with City and any succeeding terminal commercial manager or concessionaire with respect to the Premises to ensure an effective and efficient transition of concession operations. Subject to any remedies which City may have to secure any unpaid fees or charges due under this Agreement, TCM shall have the right to remove from the Premises only those items of movable equipment and furnishings installed by it; provided, however, TCM shall repair all damage done to said areas and other City-owned property resulting from the removal of such machinery, equipment and fixtures.
11.13City May Renovate. If, during the last month of this Agreement, TCM has removed all or substantially all of its property from the Premises, City may enter said Premises and alter, renovate or redecorate the same.
11.14Viewing By Prospective Competitors. At any time, and from time to time, during ordinary business hours, within twelve (12) months preceding the expiration of the term of this Agreement, City, by its agents and employees, shall have the right to accompany prospective terminal commercial managers, occupiers or users of the Premises, for the purpose of exhibiting and viewing all parts of the same.
11.15Tenancy at Sufferance. Any holding over after the expiration of the Primary Term, without the express written consent of City, shall constitute a Default and, without limiting City’s remedies provided in this Agreement, such holding over shall be construed to be a tenancy at sufferance, at a rental rate equal to one hundred fifty percent (150%) of the Base Rent last due in this Agreement, plus Additional Rent, and shall otherwise be on the terms and conditions herein specified, so far as applicable. During any such period, TCM’s Faithful Performance Guarantee (as defined in Section 4.10) shall continue in effect. If the Premises are not surrendered at the end of the Primary Term or sooner termination of this Agreement, and in accordance with the provisions of Sections 2.4 and 15, TCM shall indemnify, defend and hold City and City Agents harmless from and against any and all Claims resulting from delay by TCM in so surrendering the Premises including, without limitation, any Claims resulting from any claim against City or any City Agent made by any succeeding terminal commercial manager or concessionaire or prospective terminal commercial manager or concessionaire founded on or resulting from such delay and losses to City due to lost opportunities to lease or grant a concession to any portion of the Premises to any such succeeding terminal commercial manager or sub-concessionaire or prospective terminal commercial manager or concessionaire, together with, in each case, actual attorneys’ fees and costs.
XIIDAMAGE OR DESTRUCTION TO PREMISES.
12.1Damage or Destruction to Premises.
12.1.1Insured Damage. If, during the term of this Agreement, any improvements in or on the Premises are partially or totally destroyed from a risk covered by the insurance required to be maintained by TCM or its Concessionaires pursuant to Section 13.3 herein, thereby rendering said Premises partially or totally inaccessible or unusable, TCM or its
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Concessionaires, as the case may be, must restore the Premises to substantially the same condition as they were immediately before destruction. The proceeds from any property or casualty insurance policy or policies maintained by TCM or its Concessionaires relating to the improvements in or on the Premises shall be used for the reconstruction of the improvements in or on the Premises. In the event that for any reason, TCM or its Concessionaires fails to use any such proceeds for the purpose of the reconstruction of the improvements in or on the Premises, such proceeds shall be paid to City. If the proceeds from any property or casualty insurance policy maintained by TCM or its Concessionaires is insufficient to cover the cost of such restoration, or if TCM or its Concessionaires failed to maintain the required insurance, then TCM or its Concessionaires, as the case may be, shall promptly contribute the shortfall necessary to complete the restoration.
12.1.2Uninsured Damage. If, during the term of this Agreement, improvements in or on the Premises are partially or totally destroyed from a risk not covered by the property, casualty, or fire and extended coverage insurance required to be maintained by TCM pursuant to Section 13.3 herein, thereby rendering said Premises partially or totally inaccessible or unusable, such destruction shall not automatically terminate this Agreement. If, however, the cost of restoration exceeds twenty five percent (25%) of the full replacement value of improvements, as said value existed immediately before said destruction, TCM may, at TCM’s option, terminate this Agreement as to that portion of the Premises so damaged or destroyed by giving written notice to City within sixty (60) days from the date of discovery of such destruction. If TCM elects to terminate as above provided, TCM shall be obligated, unless otherwise directed by City, to demolish all damaged improvements and remove all debris from the Premises at TCM’s sole cost. If TCM fails to exercise its right to terminate this Agreement or if such damage was the result of the negligent act or omission of TCM or any TCM Party, this Agreement shall continue in full force and effect for the remainder of the term specified herein and TCM shall restore the Premises to substantially the same condition as they were in immediately before destruction.
12.1.3Abatement of Rent. Except as expressly provided in this Section 12.1.3, TCM’s obligation to pay Rent under this Agreement shall not be abated during the period of any damage, destruction or restoration. In the event of substantial damage or destruction to all or a portion of the Premises or areas adjacent to the Premises that are not the result of the negligence or intentional misconduct of TCM or any of the TCM Parties, then the MAG with respect to any Units within such Premises shall be equitably abated in proportion to the degree to which the use of any Units within such Premises is impaired as a result of such damage or destruction as reasonably determined by the Executive Director. With respect to such damage or destruction of the Premises, the time period for such abatement shall not extend beyond the time reasonably necessary for TCM to repair or restore the Premises as determined by the Executive Director. In the event of damage or destruction to the Premises or areas adjacent to the Premises that are the result of the negligence or intentional misconduct of TCM or any of the TCM Parties, then the MAG shall not be abated. TCM acknowledges that TCM is solely responsible for obtaining business interruption insurance (and/or to require its Concessionaires to maintain business interruption insurance) to insure itself against loss during any period of damage, destruction or restoration.
12.2Limits of City’s Obligations. City shall have absolutely no obligation to repair or restore the Premises in the event of any damage or destruction, except to the extent caused by the
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gross negligence or intentional misconduct of City or the City Agents. All obligations in connection with the damage or destruction of the Premises are the responsibility of TCM, and City shall have no liability or responsibility for such damage, destruction, repair or restoration, except to the extent caused by the gross negligence or intentional misconduct of City or the City Agents.
12.3Destruction Near End of Term. In the event that substantial damage or destruction of all or a portion of the Premises occurs during the last two (2) Years of the Primary Term, and the repair or restoration necessitated by such substantial damage or destruction would under normal construction procedures require more than three (3) months to complete, in the mutual reasonable judgment of TCM and the Executive Director, then either City or TCM may terminate this Agreement as to the portion of the Premises so damaged or destroyed by giving written notice to the other party within forty five (45) days following such damage or destruction. Such termination shall be effective as of the date of such substantial damage or destruction. If either party so elects to terminate as provided above, TCM and its Concessionaires will be entitled to retain from the proceeds of their respective fire or other casualty insurance policies required to be maintained pursuant to this Agreement an amount equal to the Convenience Termination Payment for the terminated Premises, with the balance of the proceeds of such required insurance being paid to City.
12.4Destruction of Facility. If any non-Premises areas in the Facility in which the Premises are located shall be substantially damaged or destroyed by fire or other casualty, either party may terminate this Agreement as to the Premises that are located within such Facility, unless City notifies TCM within ninety (90) days following such damage or destruction of City’s election to restore such non-Premises areas in the Facility (which election shall be in the Executive Director’s sole discretion). Such termination shall be effective as of the date of such substantial damage or destruction, or such other date as may be reasonably determined by the Executive Director, but not in excess of ninety (90) days following any such date of substantial damage or destruction. In the event of such termination, the Rent shall be equitably adjusted to reflect the loss of such Premises and any impact to the TCM Revenues as a result thereof, and to the extent that TCM’s or its Concessionaires’ improvements within such terminated Premises were undamaged, TCM shall receive the Convenience Termination Payment under Section 9.2.1 above with respect to such terminated Premises (it being understood that no Convenience Termination Payment shall be made with respect to damaged or destroyed improvements within the Premises, but TCM and its Concessionaires will be entitled to retain from the proceeds of their respective fire or other casualty insurance policies required to be maintained pursuant to this Agreement an amount equal to the Convenience Termination Payment for the terminated Premises, with the balance of the proceeds of such required insurance being paid to City).
12.5Waiver. TCM hereby waives any rights to terminate this Agreement it may have under California Civil Code Sections 1932 and 1933.
XIIILIABILITY.
13.1Liability. TCM shall comply with the indemnification and insurance provisions which follow.
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13.2City Held Harmless. In addition to the requirements of Section 13.3 herein, TCM shall indemnify, defend, keep and hold City and City Agents harmless from and against any and all actions, causes of action, charges, claims, costs, damages, demands, expenses (including attorneys’ fees, costs of court and expenses incurred), fines, judgments, liabilities, liens, losses, or penalties of every kind and nature whatsoever (collectively, “Claims”) arising out of or in connection with (i) the use and occupancy of the Premises or the Airport by TCM or any of the TCM Parties, (ii) any acts or omissions of TCM or any of the TCM Parties, and (iii) any Default by TCM. The foregoing defense and indemnification obligations of TCM shall include, without limitation, all Claims claimed by anyone by reason of injury to or death of persons, including TCM or any of the TCM Parties, or damage to or destruction of property, including property of TCM or any of the TCM Parties, sustained in, or about the Premises or Airport, except to the extent that any such Claims are due to the sole negligence or intentional misconduct of City or any of the City Agents.
13.3Insurance. TCM shall procure at its expense, and keep in effect at all times during the term of this Agreement, the types and amounts of insurance specified on Insurance, Exhibit G attached hereto and incorporated by reference herein, including, without limitation, all-risk casualty and property damage insurance to be maintained by TCM, at TCM’s expense, covering all improvements located in or on the Premises which policy shall be in the name of TCM and City with loss payable endorsement in a form reasonably approved by City. The specified insurance shall also, either by provisions in the policies, by City’s own endorsement form or by other endorsement attached to such policies, include and insure City and all of City Agents, their successors and assigns, as additional insureds, against the areas of risk described on Exhibit G with respect to acts or omissions of TCM or any of the TCM Parties in their respective operations, use, and occupancy of the Airport or other related functions performed by or on behalf of TCM or any of the TCM Parties in, on or about Airport.
13.3.1Each specified insurance policy (other than Workers’ Compensation and Employers’ Liability and fire and extended coverages) shall contain a Severability of Interest (Cross Liability) clause which states, “It is agreed that the insurance afforded by this policy shall apply separately to each insured against whom claim is made or suit is brought except with respect to the limits of the company’s liability,” and a Contractual Endorsement which shall state, “Such insurance as is afforded by this policy shall also apply to liability assumed by the insured under this Agreement with the City of Los Angeles.”
13.3.2All such insurance shall be primary and noncontributing with any other insurance held by City where liability arises out of or results from the acts or omissions of TCM or any of the TCM Parties. Such policies may provide for such reasonable deductibles and retentions as are acceptable to Executive Director based upon the nature of TCM’s operations and the type of insurance involved. Any such insurance required of TCM hereunder may be furnished by TCM under any blanket policy carried by it or under a separate policy therefor provided that the insurance carried by TCM under any such blanket policy shall be primary and noncontributing with any other insurance held by City.
13.3.3City shall have no liability for any premiums charged for such coverage(s). The inclusion of City and City Agents, their successors and assigns, as insureds is not intended to, and shall not, make them, or any of them, a partner or joint venturer with TCM in TCM’s operations at Airport. In the event TCM fails to furnish City evidence of insurance
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and maintain the insurance as required, City, upon ten (10) days prior written notice to comply, may (but shall not be required to) procure such insurance at the cost and expense of TCM, and TCM agrees to promptly reimburse City for the cost thereof [**] for administrative overhead. Payment shall be made within thirty (30) days of invoice date.
13.3.4At least five (5) days prior to the expiration date of the above policies, documentation showing that the insurance coverage has been renewed or extended shall be filed with City. If such coverage is canceled or reduced, TCM shall, within fifteen (15) days of such cancellation of coverage, file with City evidence that the required insurance has been reinstated or provided through another insurance company or companies.
13.3.5TCM shall provide proof of all specified insurance and related requirements to City by production a Certificate of Insurance on a standard insurance industry ACCORD form with production of redacted copies of the actual insurance policy(ies) (items to be redacted may be anything deemed confidential by TCM) to be provided by TCM promptly thereafter, by use of City’s own endorsement form(s), by broker’s letter acceptable to Executive Director in both form and content in the case of foreign insurance syndicates, or by other written evidence of insurance acceptable to Executive Director. In the event that the Executive Director determines that it is necessary to review any redacted portion of any such insurance policy, TCM shall promptly arrange for in camera review of such redacted portion of such insurance policy by the Executive Director through reasonable procedures designed to protect confidential information contained therein from disclosure to third parties. The documents evidencing all specified coverages shall be filed with City in duplicate and shall be procured and approved in strict accordance with the provisions in Sections 11.47 through 11.56 of the City of Los Angeles’ Administrative Code prior to TCM occupying the Premises. The documents shall contain the applicable policy number, the inclusive dates of policy coverages, and the insurance carrier’s name, shall bear an original signature of an authorized representative of said carrier, and shall provide that such insurance shall not be subject to cancellation, reduction in coverage, or nonrenewal except after written notice by certified mail, return receipt requested, to the City Attorney of the City of Los Angeles at least thirty (30) days prior to the effective date thereof. City reserves the right to have submitted to it, upon request, all pertinent information about the agent and carrier providing such insurance.
13.3.6City and TCM agree that the insurance policy limits specified herein shall be reviewed for adequacy annually throughout the term of this Agreement by Executive Director who may, thereafter, require TCM, on thirty (30) days prior, written notice, to adjust the amounts of insurance coverage to whatever reasonable amount said Executive Director deems to be adequate.
13.3.7Submission of insurance from a non-California admitted carrier is subject to the provisions of California Insurance Code Sections 1760 through 1780, and any other regulations or directives from the State Department of Insurance or other regulatory board or agency. TCM agrees, except where exempted, to provide City proof of said insurance by and through a surplus line broker licensed by the State of California.
13.3.8To the fullest extent permitted by law and except for the gross negligence or intentional misconduct by City or the City Agents, TCM, on behalf of TCM and its insurers, hereby waives, releases and discharges City and all City Agents from all Claims arising out of
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damage to or destruction of the Premises, or to TCM’s improvements, fixtures, trade fixtures or other personal property located on or about the Premises, and any loss of use or business interruption, caused by any casualty, regardless whether any such Claim results from the negligence or fault of City or any City Agent, and TCM will look only to TCM’s insurance coverage (regardless whether TCM maintains any such coverage) in the event of any such Claim. Any property insurance which TCM maintains must permit or include a waiver of subrogation in favor of City and all City Agents.
13.3.9City’s establishment of minimum insurance requirements for TCM in this Agreement is not a representation by City that such limits are sufficient and does not limit TCM’s liability under this Agreement in any manner.
XIVTRANSFER.
14.1Transfer Prohibited. TCM shall not, in any manner, directly or indirectly, by operation of law or otherwise, hypothecate, assign, transfer, or encumber this Agreement, the Premises, in whole or in part or any right or privilege appurtenant thereto, or allow any other person (the employees and invitees of TCM and its Concessionaires excepted) to occupy or use the Premises, or any portion thereof (“Transfer”), without the prior written consent of Board, which may be granted, denied or conditioned in Board’s sole discretion. Any written request for consent to a Transfer shall include proposed documentation evidencing such Transfer, name and address of the proposed transferee and the nature and character of the business of the proposed transferee and shall provide current and three (3) years prior financial statements for the proposed transferee, which financial statements shall be audited to the extent available and shall in any event be prepared in accordance with generally accepted accounting principles (collectively, a “Transfer Request”). This Agreement shall not, nor shall any interest therein, be assignable as to the interest of TCM by operation of law without the prior written consent of Board.
14.2Transfer. For purposes of this Agreement, the term “Transfer” shall also include, but not be limited to, the following: (i) if TCM is a joint venture, a limited liability company, or a partnership, the transfer of fifty percent (50%) or more of the interest or membership in the joint venture, the limited liability company, or the partnership; (ii) if TCM is a corporation, any cumulative or aggregate sale, transfer, assignment, or hypothecation of fifty percent (50%) or more of the voting shares of TCM; (iii) the dissolution by any means of TCM; (iv) the involvement of TCM or its assets in any transaction or series of transactions (by way of merger, sale of stock, sale of assets, acquisition, financing, refinancing, transfer, leveraged buyout or otherwise) which results in or will result in TCM no longer being at least fifty one percent (51%) owned and controlled (through either direct or indirect ownership) by Guarantor; and (v) the involvement of Guarantor or its assets in any transaction or series of transactions (by way of merger, sale of stock, sale of assets, acquisition, financing, refinancing, transfer, leveraged buyout or otherwise) which results in or will result in either a reduction of Guarantor’s net worth as stated in the most current financial statements contained in the TCM Proposal or Guarantor no longer being at least fifty one percent (51%) owned and controlled (through either direct or indirect ownership) by Westfield Group (ASX code: WDC). Any such transfer, assignment, mortgaging, pledging, or encumbering of TCM without the written consent of Board is a violation of this Agreement and shall be voidable at City’s option and shall confer no right, title, or interest in or to this Agreement upon the assignee, mortgagee, pledgee, encumbrancer, or
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other lien holder, successor, or purchaser. The parties acknowledge that changes in indirect ownership of either TCM or Guarantor resulting solely from the public trading of the securities of Westfield Group does not constitute a Transfer as defined above. Notwithstanding the foregoing definition of Transfer, from and after the fifth (5th) anniversary of the Effective Date, changes in direct or indirect ownership of either TCM or Guarantor resulting solely from the transfer of either TCM’s, Guarantor’s, or any parent entity’s securities in connection with TCM, Guarantor or any parent entity becoming a publicly held company or any subsequent public offering of such securities shall not be deemed to constitute a Transfer. TCM may assign its interest under this Agreement to a wholly-owned subsidiary of TCM, to Guarantor, or to a wholly owned subsidiary of Guarantor and such assignment shall not constitute a Transfer as defined above; provided that TCM shall give City not less than sixty (60) days’ prior written notice of such assignment, and provided further that neither TCM nor Guarantor shall be released from any of their obligations under this Agreement.
14.3Unit Concession Agreements Not A Transfer. Notwithstanding the definition of “Transfer” set forth in Sections 14.1 and 14.2 above, any Unit Concession Agreement entered into by TCM and approved by the Executive Director pursuant to Section 3.3 above shall not be considered a “Transfer” under this Article XIV.
14.4No Further Consent Implied. A consent to one Transfer shall not be deemed to be a consent to any other or subsequent Transfer, and consent to any Transfer shall in no way relieve TCM of any liability under this Agreement. Any Transfer without City’s consent shall be void, and shall confer no right, title, or interest in or to this Agreement upon the assignee, mortgagee, pledgee, encumbrancer, or other lien holder, successor, or purchaser. and shall, at the option of City, constitute a Default under this Agreement.
14.5No Release. Notwithstanding any Transfer, TCM and any guarantor of TCM’s obligations under this Agreement shall at all times remain fully and primarily responsible and liable for the payment of the Rent and for compliance with all of TCM’s other obligations under this Agreement (regardless of whether City’s approval has been obtained for any such Transfer), except to the extent that TCM or its Guarantor is expressly released in writing by City.
14.6Payment of City’s Costs. In connection with any Transfer, TCM shall pay to City as Additional Rent hereunder an administrative processing fee in the amount of $2,500.00, plus reasonable attorneys’ fees and costs (including, without limitation, the fees and costs attributable to City’s in-house City Attorneys) incurred by City in connection with City’s review and processing of documents regarding any proposed Transfer.
14.7Incorporation of Terms. Each Transfer pursuant to this Section shall be subject to all of the covenants, agreements, terms, provisions and conditions contained in this Agreement and each of the covenants, agreements, terms, provisions and conditions of this Agreement shall be automatically incorporated therein. If City shall consent to, or withhold its consent to, any proposed Transfer, TCM shall indemnify, defend and hold harmless City and City Agents from and against and from any and all Claims that may be made against City or any City Agent by the proposed transferee or by any brokers or other persons claiming a commission or similar fee in connection with the proposed Transfer.
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14.8Right to Collect Rent Directly. If this Agreement is transferred or assigned, whether or not in violation of the provisions of this Agreement, City may collect Rent from such transferee or assignee. If the Premises or any part thereof is sublet or used or occupied by anyone other than TCM, whether or not in violation of this Agreement, City may, after a Default by TCM, collect Rent from the occupant. In either event, City may apply the net amount collected to Rent, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of this Section 14, or the acceptance of the assignee, occupant as TCM, or a release of TCM from the further performance by TCM of TCM’s obligations under this Agreement. The consent by City to any Transfer pursuant to any provision of this Agreement shall not, except as otherwise provided herein, in any way be considered to relieve TCM from obtaining the express consent of City to any other or further Transfer. References in this Agreement to use or occupancy of the Premises or any portion thereof by anyone other than TCM shall not be construed as limited to Concessionaires and those claiming under or through Concessionaires but as including also licensees or others claiming under or through TCM, immediately or remotely.
14.9Reasonableness of Restrictions. TCM acknowledges and agrees that the restrictions, conditions and limitations imposed by this Section 14 on TCM’s ability to Transfer this Agreement or any interest herein, the Premises or any part thereof, to Transfer any right or privilege appurtenant to the Premises, or to allow any other person to occupy or use the Premises or any portion thereof other than its Concessionaires, are, for the purposes of California Civil Code Section 1951.4, as amended from time to time, and for all other purposes, reasonable at the time that this Agreement was entered into, and shall be deemed to be reasonable at the time that TCM seeks to Transfer this Agreement or any interest herein, the Premises or any part thereof, to Transfer any right or privilege appurtenant to the Premises, or to allow any other person to occupy or use the Premises or any portion thereof other than its Concessionaires. TCM’s sole remedy if City withholds its consent to any Transfer in violation of TCM’s rights under this Agreement shall be injunctive relief, and TCM hereby expressly waives California Civil Code Section 1995.310, which permits all remedies provided by law for breach of contract, including, without limitation, the right to contract damages and the right to terminate this Agreement if City withholds consent to a Transfer in violation of TCM’s rights under this Agreement, and any similar or successor statute or law in effect or any amendment thereof during the Term.
14.10 [**]
XVHAZARDOUS MATERIALS.
15.1Hazardous Materials. For the purposes of this Agreement, “Hazardous Materials” means:
15.1.1Any substance the presence of which now or hereafter requires the investigation or remediation under any federal, state or local statute, regulation, rule, ordinance, order, action, policy or common law; or
15.1.2Any substance which is or becomes defined as a hazardous waste, extremely hazardous waste, hazardous material, hazardous substance, hazardous chemical, toxic chemical, toxic substance, cancer causing substance, substance that causes reproductive harm, pollutant or contaminant under any federal, state or local statute, regulation, rule or ordinance or
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amendments thereto, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601 et seq.) or the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.); or
15.1.3Any substance which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any governmental authority, agency, department, commission, council, board, or instrumentality of the United States, the State of California, the City of Los Angeles, or any political subdivision of any of them; or
15.1.4Any substance, without limitation, which contains gasoline, aviation fuel, jet fuel, diesel fuel or other petroleum hydrocarbons, lubricating oils, solvents, polychlorinated bipheynols (PCBs) asbestos, urea formaldehyde or radon gases.
15.2Prohibition; TCM Responsibility. Except as may be specifically approved in writing in advance by Executive Director (“Permitted Hazardous Materials”), TCM (and its Concessionaires) shall not use, store, handle, generate, treat, dispose, discharge or release any Hazardous Materials at the Premises, in any Common Areas or at the Airport in connection with its use, occupancy, and operation of its business at the Premises; provided, however, Executive Director shall not unreasonably withhold its approval to TCM’s (or its Concessionaires’) use, storage and handling of common cleaning materials routinely present in businesses conducting the Permitted Use to the extent such materials are used strictly in accordance with applicable Laws, manufacturer’s instructions and best management practices. TCM agrees to accept sole responsibility for full compliance with any and all applicable present and future rules, regulations, restrictions, ordinances, statutes, laws or other orders of any governmental entity regarding the use, storage, handling, distribution, processing or disposal of Hazardous Materials (“Hazardous Materials Laws”) relating to the activities of TCM or any TCM Party on or about the Premises or the Airport, regardless of whether the obligation for such compliance or responsibility is placed on the owner of the land, on the owner of any improvements on the Premises, on the user of the land, or on the user of the improvements. TCM agrees that any damages, penalties or fines levied on City or TCM as a result of noncompliance with any of the above shall be the sole responsibility of TCM; provided, however, TCM shall not have any responsibility or liability with respect to any Hazardous Materials which were in existence in any portion of the Facility, the Premises or elsewhere on the Airport prior to the delivery of any portion of the Premises by City to TCM (all of the foregoing being referred to as “Pre-Existing Hazardous Materials”), except to the extent of TCM’s active negligence in the disturbance or other handling of such Pre-Existing Hazardous Materials (such as asbestos containing materials that may be incorporated in the existing improvements located on or about the Premises and may be disturbed during TCM’s construction activities) and such disturbance or handling was not in compliance with applicable Hazardous Materials Laws. Further, TCM shall indemnify, defend, protect and pay and reimburse and hold City any City Agents harmless from any Claims that City or any City Agent suffers or incurs as a result of noncompliance with TCM’s express obligations set forth above. TCM agrees that any actions (including, without limitation, remedial or enforcement actions of any kind, administrative or judicial proceedings, and orders or judgments arising out of or resulting therefrom), costs, claims, damages (including, without limitation, punitive damages), demands, expenses (including, without limitation, attorneys’, consultants’ and experts’ fees, court costs and amounts paid in settlement of any claims or
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actions), fines, forfeitures or other civil, administrative or criminal penalties, injunctive or other relief (whether or not based upon personal injury, property damage, or contamination of, or adverse effects upon, the environment, water tables or natural resources), liabilities, liens or losses (collectively, “Environmental Claims”) asserted against or levied on the Premises, City or TCM as a result of noncompliance with any of TCM’s express obligations set forth in this Section shall be the sole responsibility of TCM and that TCM shall indemnify, defend and hold City and City Agents harmless from all such Environmental Claims. Further, City may, at its option, pay such Environmental Claims resulting from TCM’s non-compliance with any of the terms of this Section, and TCM shall reimburse City for any such payments within thirty (30) days after written demand therefor.
15.3Spill - Clean-Up. From and after the Delivery Dates with respect to any portion of the Premises, in the case of any Hazardous Materials spill, leak, discharge, or improper storage on the Premises or contamination of the Premises by any person, TCM shall make or cause to be made any necessary repairs or corrective actions and shall clean up and remove any leakage, contamination or contaminated materials. In the case of any Hazardous Materials spill, leak, discharge or contamination by TCM or any of the TCM Parties at the Premises or in, on or under adjacent property which affects other property of City or its tenants’ property, TCM shall make or require to be made any necessary corrective actions to clean up and remove any spill, leakage or contamination and contaminated materials. In the case of any Hazardous Materials spill, leak, discharge or contamination by City or any of the City’s Agents within the Facilities, City shall take or require to be taken any necessary corrective action required under applicable Hazardous Materials Laws to clean up and remove such spill, leakage, discharge or contamination. If TCM fails to repair, clean up, properly dispose of or take any other corrective actions as required in this Section 15.3, City shall have the right (but not the obligation) to take all steps it deems necessary to properly repair, clean up or otherwise correct the conditions resulting from the spill, leak or contamination. In connection therewith, TCM shall be listed as the owner or “generator” of any Hazardous Materials listed on any Hazardous Waste Manifest and in connection with any reporting made to any governmental entity. Except as otherwise set forth in this Section 15.3, any such repair, cleanup or corrective actions taken by City as the result of TCM’s failure to comply with TCM’s obligations under this Section 15.3 shall be at TCM’s sole cost and expense and TCM shall indemnify, defend, pay for and reimburse and hold City and City Agents harmless from and against any and all costs [**] City incurs as a result of any repair, cleanup or corrective action City takes to correct any act or failure to act by TCM.
15.4Provision to City of Environmental Documents. TCM shall promptly supply City with complete and legible copies of all notices, reports, correspondence, and other documents sent by TCM to or received by TCM from any governmental entity or third party regarding any Hazardous Materials and relating to the Premises. Such written materials include, without limitation, all documents relating to any threatened or actual Hazardous Materials spill, leak, or discharge, or to any investigations into or clean up of any actual or threatened Hazardous Materials spill, leak, or discharge including all test results, or any Environmental Claims related to the Premises, or TCM’s use, occupancy or operations at the Premises. If City shall receive any of the foregoing which may relate to the Premises, City shall promptly notify TCM and provide copies thereof with such notice.
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15.5Hazardous Materials Continuing Obligation. This Section and the obligations herein shall survive the expiration or earlier termination of this Agreement for a period equal to any applicable statute of limitations under any applicable Hazardous Materials Laws.
XVIOTHER PROVISIONS.
16.1Other Provisions. The appearance of any provision in this Section shall not diminish its importance.
16.2Cross Default. A material default of the terms of any other lease, license, permit, or agreement held by TCM with the City of Los Angeles Department of Airports shall constitute a material Default of the terms of this Agreement and shall give City the right to terminate this Agreement for cause in accordance with the procedures set forth in this Agreement.
16.3City’s Right of Access and Inspection. City, by its officers, employees, agents, representatives and contractors, shall have the right at all reasonable times to enter upon the Premises for the purpose of inspecting the same, for observing the performance by TCM of its obligations under this Agreement or for doing any act or thing which City may be obligated or have the right to do under this Agreement, or otherwise, and no abatement of fees and charges shall be claimed by or allowed to TCM by reason of the exercise of such right. City shall provide TCM with at least 24 hours prior written notice delivered to TCM’s office in the Facility, provided, no such prior notice shall be required to be given in the event of any emergency or other matter involving public safety as determined by the Executive Director in his or her sole discretion. Upon City’s written request, responsible representatives of TCM will confer with representatives of City for the purpose of making a complete inspection of TCM’s operations, including a review of the quality of service, merchandise and prices, maintenance of the Premises, furnishings and equipment and such other items as City may wish to review.
16.4Automobiles and Other Equipment. Subject to compliance with City’s permitting and security clearance requirements, TCM shall have the right to use, hire or contract for such automotive vehicles or other mechanized equipment and the services thereof as it determines to be necessary for the operation of the concession development and management business herein authorized; provided, however, that the nature, size, type, character and condition of such automotive vehicles and mechanized equipment (including any requirements that such vehicles or other equipment comply with any LEED, ‘green” or energy efficiency requirements and policies of the City then in effect) shall be subject to prior written approval of Executive Director before the same is placed in operation. Upon placing such equipment in operation, TCM shall strictly comply with such rules and regulations as Executive Director may issue, from time to time, covering operation of such equipment and the time periods therefore, the routes over any of the aprons necessary to the operation of the concession, the location of the parking and storage areas for such equipment, the maintenance of the mechanical condition, appearance, neatness, cleanliness and sanitary condition of such equipment and the cleanliness, neat appearance and conduct and demeanor of TCM’s or other personnel operating the same (including, without limitation, any requirements imposed by any Private Restrictions (including, without limitation, that certain Community Benefits Agreement). All of said personnel shall have all licenses required by law and shall also he licensed by City, and City may require periodic inspections of such equipment by City representatives. Approval of inspected equipment may be evidenced by
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a decal or sticker to be placed on same as required by City. A nominal fee to cover such licensing and inspection services may be charged by City.
16.5Notices.
16.5.1Notice to City. Written notices to City hereunder, with a copy to the City Attorney of the City of Los Angeles, shall be given by United States mail, postage prepaid, certified, or by personal delivery or nationally recognized overnight courier, and addressed to City at the addresses set forth in the Basic Information or to such other address as City may designate by written notice to TCM.
16.5.2Notice to TCM. Written notices to TCM hereunder shall be given by United States mail, postage prepaid, certified, or by personal delivery or nationally recognized overnight courier, and addressed to TCM at the address set forth in the Basic Information or to such other address as TCM may designate by written notice to City.
16.5.3The execution of any such notice by Executive Director shall be as effective as to TCM as if it were executed by the Board, or by resolution or order of said Board, and TCM shall not question the authority of Executive Director to execute any such notice.
16.5.4All such notices to City, except as otherwise provided herein, may be delivered personally to Executive Director with a copy to the Office of the City Attorney, Airport Division. Notices shall be deemed given upon actual receipt (or attempted delivery if delivery is refused), if personally delivered, or one (1) business day following deposit with a reputable overnight courier that provides a confirmation receipt (or refusal), or on the fifth (5th) day following deposit in the United States mail in the manner described above. In no event shall either party use a post office box or other address which does not accept overnight delivery.
16.6Agent for Service of Process. If TCM is not a resident of the State of California, or is a partnership of joint venture without a partner or member resident in said State, or is a foreign corporation, then in any such event TCM does designate the Secretary of State, State of California, its agent for the purpose of service of process in any court action between it and City arising out of or based upon this Agreement, and the service, shall be made as provided by the Laws of the State of California for service upon a non-resident. Notwithstanding the above, TCM represents to City that its agent for service of process in California is as set forth in the Basic Information (“Registered Agent”) and City agrees that service of process shall be made on TCM’s Registered Agent or such change of Registered Agent as TCM may notify City from time to time. If, for any reason, service of such process is not possible, as an alternative method of service of process, TCM may be personally served with such process out of this State by mailing, by registered or certified mail, the complaint and process to TCM at the address for notice as set forth in the Basic Information, and that such service shall constitute valid service upon TCM as of the date of mailing, and TCM shall have thirty (30) days from the date of mailing to respond thereto. TCM agrees to the process so served, submits to the jurisdiction and waives any and all objection and protest thereto, and Laws to the contrary notwithstanding.
16.7Restrictions and Regulations.
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16.7.1The operations conducted by TCM pursuant to this Agreement shall be subject to: (a) any and all applicable rules, regulations, orders and restrictions which are now in force or which may be hereafter adopted by City, Board or Executive Director with respect to the operation of Airport; (b) any and all orders, directions or conditions issued, given or imposed by City, Board or Executive Director with respect to the use of the roadways, driveways, curbs, sidewalks, parking areas or public areas adjacent to the Premises; and (c) any and all applicable Laws, ordinances, statutes, rules, regulations or orders, including environmental, or any governmental authority, federal, state or municipal, lawfully exercising authority over Airport or TCM’s operations. TCM shall be solely responsible for any and all civil or criminal penalties assessed as a result of its failure to comply with any of these rules, regulations, restrictions, restrictions, ordinances, statutes, Laws, orders, directives and or conditions.
16.7.2Regulations Do Not Permit Termination. City shall not be liable to TCM for any diminution or deprivation of TCM’s rights hereunder on account of the exercise of any such authority, nor shall TCM be entitled to terminate the whole or any portion of this Agreement by reason thereof.
16.8Right 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 Airport, TCM agrees to consent to such amendments, modifications, revisions, supplements or deletions or any of the terms conditions or requirements of this Agreement as may be reasonably required to obtain such funds; provided, however, that in no event will TCM be required, pursuant to this Section, to agree to an increase in the fees and charges provided for herein or to a change in the use of any Unit, provided it is the Permitted Use, to which TCM has put the Unit. In the event that such required amendment results in a material decrease in the sales of TCM’s Concessionaires, then the Executive Director will use good faith efforts to recommend for approval to the Board an amendment to this Agreement providing for an equitable adjustment to the MAG as reasonably determined by the Executive Director following consultation with TCM (it being understood, however, that such amendment to adjust the MAG shall require the approval of the Board acting in the Board’s sole and absolute discretion). As a condition to the Executive Director’s recommending such amendment, TCM shall have demonstrated to the reasonable satisfaction of the Executive Director, based on a six (6) month review of operations following the implementation of such required amendment, that such required amendment is resulting in a material decrease in the sales of TCM’s Concessionaires.
16.9Independent Contractor. It is the express intention of the parties that TCM is an independent contractor and not an employee, agent, joint venturer or partner of City. Nothing in this TCM shall be interpreted or construed as creating or establishing the relationship of employer and employee between TCM and City or between TCM and any official, agent, or employee of City. Both parties acknowledge that TCM is not an employee of City. TCM shall retain the right to perform services for others during the term of this Agreement, unless specified to the contrary herein or prohibited by conflict of interest or ethics Laws, regulations, or professional rules of conduct.
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16.10Disabled Access.
16.10.1TCM shall be solely responsible for fully complying with any and all applicable present or future rules, regulations, restrictions, ordinances, statutes, Laws, or orders of any federal, state, or local governmental entity or court regarding disabled access to the Premises, including any services, programs, improvements or activities provided by TCM. TCM shall be solely responsible for any and all Claims and damages caused by, or penalties levied as the result of, TCM’s noncompliance. Further, TCM agrees to cooperate fully with City in its efforts to comply with the ADA.
16.10.2Should TCM fail to comply with Section 16.10.1, then City shall have the right, but not the obligation, to perform, or have performed, whatever work is necessary to achieve equal access compliance. TCM shall then be required to reimburse City for the actual cost of achieving compliance [**] within thirty (30) days of written demand therefor.
16.11Child Support Orders. This Agreement is subject to Section 10.10, Article I, Chapter 1, Division 10 of the Los Angeles Administrative Code related to Child Support Assignment Orders, which is incorporated herein by this reference. A copy of section 10.10 and the Declaration of Compliance form have been attached hereto for the convenience of the parties as Exhibit H. Pursuant to this Section, TCM (and any concessionaire of TCM providing services to City under this Agreement) shall (1) fully comply with all State and Federal employment reporting requirements for TCM’s or TCM’s concessionaire’s employees applicable to Child Support Assignment Orders; (2) certify that the principal owner(s) of TCM and applicable concessionaires are in compliance with any Wage and Earnings Assignment Orders and Notices of Assignment applicable to them personally; (3) fully comply with all lawfully served Wage and Earnings Assignment Orders and Notices of Assignment in accordance with California Family Code Section 5230, et seq.; and (4) maintain such compliance throughout the term of this Agreement. Pursuant to Section 10.10(b) of the Los Angeles Administrative Code, failure of TCM or an applicable concessionaire to comply with all applicable reporting requirements or to implement lawfully served Wage and Earnings Assignment Orders and Notices of Assignment or the failure of any principal owner(s) of TCM or applicable concessionaires to comply with any Wage and Earnings Assignment Orders and Notices of Assignment applicable to them personally shall constitute a Default of this Agreement subjecting this Agreement to termination where such failure shall continue for more than ninety (90) days after notice of such failure to TCM by City (in lieu of any time for cure provided elsewhere in this Agreement).
16.12Business Tax Registration. TCM represents that it has registered its business with the Office of Finance of the City of Los Angeles and has obtained and presently holds from that Office a Business Tax Registration Certificate (“BTRC”), or a Business Tax Exemption Number, required by the City of Los Angeles’ Business Tax Ordinance (Article 1, Chapter 2, Sections 21.00 and following, of the City of Los Angeles’ Municipal Code). TCM shall maintain, or obtain as necessary, all such certificates required of it under said Ordinance and shall not allow any such certificate to be revoked or suspended during the term hereof.
16.13Ordinance and Los Angeles Administrative Code (“Code”) Language Governs. Ordinance and Code exhibits are provided as a convenience to the parties only. In the event of a
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discrepancy between the exhibits and the applicable ordinance or code language, or amendments thereto, the language of the ordinance or code shall govern.
16.14Amendments to Ordinances and Codes. The obligation to comply any Ordinances and Codes which have been incorporated into this Agreement by reference, shall extend to any amendments which may be made to those Ordinances and Codes during the term of this Agreement.
16.15Non-Discrimination and Affirmative Action Provisions.
16.15.1Federal Non-Discrimination Provisions. TCM assures that it will comply with pertinent statutes, Executive Orders, and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance. This provision obligates TCM or its transferee for the period during which Federal assistance is extended to the airport program, except where Federal assistance is to provide, or is in the form of personal property or real property or interest therein or structures or improvements thereon. In these cases, the provision obligates the party or any transferee for the longer of the following periods: (a) the period during which the property is used by the sponsor or any transferee for a purpose for which Federal assistance is extended, or for another purpose involving the provision of similar services or benefits; or (b) the period during which the airport sponsor or any transferee retains ownership or possession of the property.
16.15.2Municipal Non-Discrimination Provisions In Use of Airport. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, religion, national origin, ancestry, sex, sexual orientation, gender identity, gender expression, age, physical handicap, marital status, domestic partner status, or medical condition in connection with this Agreement, the transfer, use, occupancy, tenure, or enjoyment of the Airport or any operations or activities conducted on the Airport. Nor shall TCM establish or contract any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of contractors, subcontractors, or vendees of the Airport. Any Transfer or Unit Concession Agreement, which may be permitted under this Agreement, shall also be subject to all non-discrimination clauses contained in this Section 16.15.
16.15.3Municipal Non-Discrimination Provisions in Employment. During the term of this Agreement, TCM agrees and obligates itself in the performance of this Agreement not to discriminate against any employee or applicant for employment because of the employee’s or applicant’s race, religion, national origin, ancestry, sex, sexual orientation, gender identity, gender expression age, physical handicap, marital status, domestic partner status, or medical condition. TCM shall take affirmative action to insure that applicants for employment are treated, during the term of this Agreement, without regard to the aforementioned factors and shall comply with the affirmative action requirements of the Los Angeles Administrative Code, Sections 10.8, et seq., or any successor ordinances or law concerned with discrimination.
16.15.4Municipal Equal Employment Practices. If the total payments made under this Agreement are One Thousand Dollars ($1,000) or more, this provision shall apply. During the performance of this Agreement, TCM agrees to comply with Section 10.8.3 of the
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Los Angeles Administrative Code (“Equal Employment Practices”), which is incorporated herein by this reference. A copy of Section 10.8.3 has been attached to this Agreement for the convenience of the parties as Exhibit I. By way of specification but not limitation, pursuant to Sections 10.8.3.E and 10.8.3.F of the Los Angeles Administrative Code, the failure of TCM to comply with the Equal Employment Practices provisions of this Agreement may be deemed to be a material Default of this Agreement. No such finding shall be made or penalties assessed except upon a full and fair hearing after notice and an opportunity to be heard have been given to TCM. Upon a finding duly made that TCM has failed to comply with the Equal Employment Practices provisions of this Agreement, this Agreement may be forthwith terminated, cancelled, or suspended.
16.15.5Municipal Affirmative Action Program. If the total payments made under this Agreement are One Hundred Thousand Dollars ($100,000) or more, this provision shall apply. During the performance of this Agreement, TCM agrees to comply with Section 10.8.4 of the Los Angeles Administrative Code (“Affirmative Action Program”), which is incorporated herein by this reference. A copy of Section 10.8.4 has been attached to this Agreement for the convenience of the parties as Exhibit J. By way of specification but not limitation, pursuant to Sections 10.8.4.E and 10.8.4.F of the Los Angeles Administrative Code, the failure of TCM to comply with the Affirmative Action Program provisions of this Agreement may be deemed to be a material Default of this Agreement. No such finding shall be made or penalties assessed except upon a full and fair hearing after notice and an opportunity to be heard have been given to TCM. Upon a finding duly made that TCM has failed to comply with the Affirmative Action Program provisions of this Agreement, this Agreement may be forthwith terminated, cancelled, or suspended.
16.15.6Non-Discriminatory Pricing. TCM shall furnish its services on a reasonable and not unjustly discriminatory basis to all users, and charge reasonable and not unjustly discriminatory prices for each unit or service, provided that TCM may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers.
16.15.7Concessionaires. TCM shall ensure the each Concessionaire complies with the foregoing provisions of this Section 16.15 in connection with the activities of such Concessionaire under its Unit Concession Agreement.
16.16Security - General. TCM shall be responsible for fully complying with any and all applicable present or future rules, regulations, restrictions, ordinances, statutes, Laws or orders of any federal, state or local governmental entity regarding airfield security.
16.16.1Security - FAA. TCM shall be responsible for the maintenance and repair of gates and doors that are located at the Premises or controlled by TCM. TCM shall comply fully with applicable provisions of the Federal Aviation Administration Regulations, 14 CFR, Part 107, including the establishment and implementation of procedures acceptable to Executive Director to control access from the Premises to air operation areas in accordance with the Airport Security Program required by Part 107. Further, TCM shall exercise exclusive security responsibility for the Premises.
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16.16.2Security - Doors and Gates. Gates and doors located at the Premises which permit entry into restricted areas at Airport shall be kept locked by TCM at all times when not in use or under TCM’s constant security surveillance. Gate or door malfunctions which permit unauthorized entry into restricted areas shall be reported to Department of Airports’ Operations Bureau without delay and shall be maintained under constant surveillance by TCM until repairs are affected by TCM or City or the gate or door is properly secured.
16.16.3Security - Penalties. All civil penalties levied by the Federal Aviation Administration for violation of Federal Aviation Regulations pertaining to security gates or doors located at the Premises or otherwise controlled by TCM shall be the sole responsibility of TCM. TCM agrees to indemnify, defend and hold City and City Agents harmless from and against any Claims or any federal civil penalties amounts City or any City Agent must pay due to any security violation arising from the use of TCM’s leasehold or the breach of any obligation imposed by this Section. TCM will be billed for the cost of any such penalties paid by City as Additional Rent hereunder [**] to be paid by TCM to City within thirty (30) days of written demand.
16.16.4Security Arrangements. City shall provide, or cause to be provided, during the term hereof, the public fire, police and security protection similar to that afforded to others at Airport, and it will issue and enforce rules and regulations with respect thereto for all portions of Airport. TCM shall have the right, but shall not be obligated, to provide such additional or supplemental private protection as it may desire.
16.17Visual Artists’ Rights Act. TCM shall not install, or cause to be installed, any work of art subject to the Visual Artists’ Rights Act of 1990 (as amended), 17 U.S.C. 106A, et seq., or California Civil Code Section 980, et seq., (“VARA”) on or about the Premises without first obtaining a waiver, in writing, of all rights under VARA, satisfactory to Executive Director and approved as to form and legality by the City Attorney’s Office, from the artist. Said waiver shall be in full compliance with VARA and shall name City as a party for which the waiver applies. TCM is prohibited from installing, or causing to be installed, any piece of artwork covered under VARA on the Premises without the prior, written approval and waiver of Executive Director. Any work of art installed on the Premises without such prior approval and waiver shall be deemed a trespass, removable by City, by and through its Executive Director, upon three (3) days written notice, all costs, expenses, and liability therefore to be borne exclusively by TCM. TCM, in addition to other obligations to indemnify, defend and hold City and City Agents harmless, as more specifically set forth in this Agreement, shall indemnify, defend and hold City and City Agents harmless from all Claims resulting from TCM’s failure to obtain City’s waiver of VARA and failure to comply with any portion of this provision. The rights afforded City under this provision shall not replace any other rights afforded City in this Agreement or otherwise, but shall be considered in addition to all its other rights.
16.18Living Wage Ordinance General Provisions. This Agreement and all Unit Concession Agreements are subject to the Living Wage Ordinance (hereinafter referred to as “LWO”) (Section 10.37, et seq., of the Los Angeles Administrative Code, which is incorporated herein by this reference). A copy of Section 10.37 has been attached hereto for the convenience of the parties as Exhibit K. The LWO requires that, unless specific exemptions apply, any employees of service contractor’s who render services that involve an expenditure in excess of Twenty Five Thousand Dollars ($25,000) and a contract term of at least three months are
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covered by the LWO if any of the following applies: (1) at least some of the services are rendered by employees whose work site is on property owned by City, (2) the services could feasibly be performed by City of Los Angeles employees if the awarding authority had the requisite financial and staffing resources, or (3) the designated administrative agency of the City of Los Angeles has determined in writing that coverage would further the proprietary interests of the City of Los Angeles. Employees covered by the LWO are required to be paid not less than a minimum initial wage rate, as adjusted each year. The LWO also requires that employees be provided with at least twelve (12) compensated days off per year for sick leave, vacation, or personal necessity at the employee’s request, and at least ten (10) additional days per year of uncompensated time pursuant to Section 10.37.2(b). The LWO requires employers to inform employees making less than Twelve Dollars ($12) per hour of their possible right to the federal Earned Income Tax Credit (“EITC”) and to make available the forms required to secure advance EITC payments from the employer pursuant to Section 10.37.4. TCM shall permit access to work sites for authorized City representatives to review the operation, payroll, and related documents, and to provide certified copies of the relevant records upon request by City. Whether or not subject to the LWO, TCM shall not retaliate against any employee claiming non-compliance with the provisions of the LWO, and, in addition, pursuant to Section 10.37.6(c), TCM agrees to comply with federal law prohibiting retaliation for union organizing.
16.18.1Living Wage Coverage Determination. An initial determination has been made that this Agreement and the Unit Concession Agreements are service contracts under the LWO, and that it is not exempt from coverage by the LWO. Determinations as to whether this Agreement and Unit Concession Agreements are service contracts covered by the LWO, or whether an employer or employee are exempt from coverage under the LWO are not final, but are subject to review and revision as additional facts are examined or other interpretations of the law are considered. In some circumstances, applications for exemption must be reviewed periodically. City shall notify TCM in writing about any redetermination by City of coverage or exemption status. To the extent TCM claims non-coverage or exemption from the provisions of the LWO, the burden shall be on TCM to prove such non-coverage or exemption.
16.18.2Compliance; Termination Provisions and Other Remedies: Living Wage Policy. If TCM and it Concessionaires are not initially exempt from the LWO, TCM shall comply, and shall require its Concessionaires to comply, with all of the provisions of the LWO, including payment to employees at the minimum wage rates, effective on the execution date of this Agreement, and shall execute the Declaration of Compliance Form attached to this Agreement, as part of Exhibit L, contemporaneously with the execution of this Agreement. If TCM is initially exempt from the LWO, but later no longer qualifies for any exemption, TCM shall, at such time as TCM is no longer exempt, comply with the provisions of the LWO and execute the then currently used Declaration of Compliance Form, or such form as the LWO requires. Under the provisions of Section 10.37.6(c) of the Los Angeles Administrative Code, violation of the LWO shall constitute a material Default of this Agreement and City shall be entitled to terminate this Agreement and otherwise pursue legal remedies that may be available, including those set forth in the LWO, if City determines that TCM violated the provisions of the LWO. The procedures and time periods provided in the LWO are in lieu of the procedures and time periods provided elsewhere in this Agreement. Nothing in this Agreement shall be construed to extend the time periods or limit the remedies provided in the LWO.
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16.18.3Subcontractor Compliance. TCM agrees to include, in every subcontract or Unit Concession Agreement covering City property entered into between TCM and any subcontractor or Concessionaire, a provision pursuant to which such subcontractor or Concessionaire (A) agrees to comply with the Living Wage Ordinance and the Service Contractor Worker Retention Ordinance with respect to City's property; (B) agrees not to retaliate against any employee lawfully asserting noncompliance on the part of the subcontractor or Concessionaire with the provisions of either the Living Wage Ordinance or the Service Contractor Worker Retention Ordinance; and (C) agrees and acknowledges that City, as the intended third-party beneficiary of this provision may (i) enforce the Living Wage Ordinance and Service Contractor Worker Retention Ordinance directly against the subcontractor or Concessionaire with respect to City property, and (ii) invoke, directly against the subcontractor or Concessionaire with respect to City property, all the rights and remedies available to City under Section 10.37.5 of the Living Wage Ordinance and Section 10.36.3 of the Service Contractor Worker Retention Ordinance, as same may be amended from time to time.
16.19Service Contract Worker Retention Ordinance. This Agreement may be subject to the Service Contract Worker Retention Ordinance (hereinafter referred to as “SCWRO”) (Section 10.36, et seq., of the Los Angeles Administrative Code), which is incorporated herein by this reference. A copy of Section 10.36 has been attached for the convenience of the parties as Exhibit M. If applicable, TCM must also comply with the SCWRO which requires that, unless specific exemptions apply, all employers under contracts that are primarily for the furnishing of services to or for the City of Los Angeles and that involve an expenditure or receipt in excess of Twenty Five Thousand Dollars ($25,000) and a contract term of at least three (3) months, shall provide retention by a successor TCM for a ninety-day (90-day) transition period of the employees who have been employed for the preceding twelve (12) months or more by the terminated TCM or concessionaire, if any, as provided for in the SCWRO. Under the provisions of Section 10.36.3(c) of the Los Angeles Administrative Code, City has the authority, under appropriate circumstances, to terminate this Agreement and otherwise pursue legal remedies that may be available if City determines that the subject TCM violated the provisions of the SCWRO.
16.20Equal Benefits Ordinance. Unless otherwise exempt in accordance with the provisions of the Equal Benefits Ordinance (“EBO”), TCM certifies and represents that TCM will comply with the applicable provisions of EBO Section 10.8.2.1 of the Los Angeles Administrative Code, as amended from time to time. TCM shall not, in any of its operations within the City of Los Angeles or in other locations owned by the City of Los Angeles, including the Airport, discriminate in the provision of Non-ERISA Benefits (as defined below) between employees with domestic partners and employees with spouses, or between the domestic partners and spouses of such employees, where the domestic partnership has been registered with a governmental entity pursuant to state or local law authorizing such registration. As used above, the term “Non-ERISA Benefits” shall mean any and all benefits payable through benefit arrangements generally available to TCM’s employees which are neither “employee welfare benefit plans” nor “employee pension plans”, as those terms are defined in Sections 3(1) and 3(2) of ERISA. Non-ERISA Benefits shall include, but not be limited to, all benefits offered currently or in the future, by TCM to its employees, the spouses of its employees or the domestic partners of its employees, that are not defined as “employee welfare benefit plans” or “employee pension benefit plans”, and, which include any bereavement leave, family and medical leave, and
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travel discounts provided by TCM to its employees, their spouses and the domestic partners of employees.
16.20.1TCM agrees to post the following statement in conspicuous places at its place of business available to employees and applicants for employment:
“During the term of a Contract with the City of Los Angeles, TCM will provide equal benefits to employees with spouses and its employees with domestic partners. Additional information about the City of Los Angeles’ Equal Benefits Ordinance may be obtained from the Department of Public Works, Bureau of Contract Administration, Office of Contract Compliance at (213) 847-6480.”
16.20.2The failure of TCM to comply with the EBO will be deemed to be a material Default of this Agreement by City. If TCM fails to comply with the EBO, City may cancel or terminate this Agreement, in whole or in part, and all monies due or to become due under this Agreement may be retained by City. City may also pursue any and all other remedies at law or in equity for any such Default. Failure to comply with the EBO may be used as evidence against TCM in actions taken pursuant to the provisions of Los Angeles Administrative Code Section 10.40, et seq., TCM Responsibility Ordinance. If City determines that TCM has set up or used its contracting entity for the purpose of evading the intent of the EBO, City may terminate this Agreement.
16.21Contractor Responsibility Program. TCM shall comply with the provisions of the Contractor Responsibility Program adopted by the Board. Executive Directives setting forth the rules, regulations, requirements and penalties of the Contractor Responsibility Program and the Pledge of Compliance Form is attached hereto as Exhibit N and incorporated herein by reference.
16.22First Source Hiring Program for Airport Employers. For all work performed at Airport, TCM shall comply, and shall cause its Concessionaires to comply, with all terms and conditions of the First Source Hiring Program (“FSHP”). A copy of the FSHP is attached hereto and incorporated by reference herein as Exhibit O.
16.23Environmentally Favorable Options. TCM acknowledges for itself and its Concessionaires that its operation of its activities under this Agreement will be subject to all of City of Los Angeles’ policies, guidelines and requirements regarding environmentally favorable construction, use or operations practices (hereinafter collectively referred to as “City Policies”) as such City Policies may be promulgated, revised and amended from time-to-time.
16.24Municipal Lobbying Ordinance. TCM shall comply with the provisions of the City of Los Angeles Municipal Lobbying Ordinance.
16.25Labor Peace Agreement. A Unit Concession Agreement shall not be approved or entered into unless: (i) such Concessionaire shall have a signed a Labor Peace Agreement (“LPA”) with the labor organizations representing or seeking to represent concession workers at the Unit covered by the Unit Concession Agreement; (ii) TCM or such Concessionaire shall have submitted to City a copy of such LPA, executed by all of the parties to such LPA; and (iii) such LPA shall prohibit such labor organizations and their members from engaging in picketing, work
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stoppages, boycotts or other economic interference with the business of such Concessionaire at any of the airports operated by City for the duration of the Unit Concession Agreement.
16.26Alternative Fuel Vehicle Requirement Program. TCM shall comply with the provisions of the Alternative Fuel Vehicle Requirement Program. The rules, regulations, and requirements of the Alternative Fuel Vehicle Program are attached as Exhibit P and made a material term of this Agreement.
16.27Ownership of Work Product. TCM agrees that any and all intellectual properties, including, but not limited to, all ideas, concepts, themes, documentation or other literature, or illustrations, or any components thereof, conceived, developed, written or contributed by TCM, either individually or in collaboration with others, for the benefit of City, shall belong to and be the sole property of City.
16.28Estoppel Certificate. Upon written request of either party, the other party shall execute, acknowledge and deliver to the requesting party or its designee, an Estoppel Certificate in the form reasonably required by the requesting party and with any other statements reasonably requested by the requesting party or its designee. Any such Estoppel Certificate may be relied upon by the requesting party or its designee. If TCM fails to provide such certificate within twenty (20) days of receipt by TCM of a written request by City as herein provided, such failure shall, at City’s election, constitute a Default under this Agreement, and TCM shall be deemed to have given such certificate as above provided without modification and shall be deemed to have admitted the accuracy of any information supplied by City to such designee.
16.29Subordination of Agreement. This Agreement shall be subordinate to the provisions of any existing or future agreement between City and the United States of America, its boards, agencies or commissions, or between City and the State of California, relative to the operations or maintenance of Airport the execution of which has been or may be required as a condition precedent to the expenditure of federal or state funds for the development of said Airport. This Agreement and all the provisions hereof shall be subject to whatever right the United States Government now has or in the future may have or acquire affecting the control, operation, regulation, and taking over of the Airport or the exclusive or nonexclusive use of the Airport by the United States during the time of war or national emergency.
16.30Laws of California; Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of California and venue shall lie in the appropriate U.S. Federal Court or California Superior Court located in Los Angeles County, California
16.31Agreement Binding Upon Successors. Subject to the provisions of Section 14, this Agreement shall be binding upon and shall inure to the benefit of the successors, heirs and assigns of the parties hereto.
16.32Attorneys’ Fees. If either party hereto fails to perform any of its obligations under this Agreement or if any dispute arises between the parties hereto concerning the meaning or interpretation of any provision of this Agreement, then the defaulting party or the party not prevailing in such dispute, as the case may be, shall pay any and all costs and expenses incurred by the other party on account of such default or in enforcing or establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys’ fees and disbursements. Any
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such reasonable attorneys’ fees and other expenses incurred by either party in enforcing a judgment in its favor under this Agreement shall be recoverable separately from and in addition to any other amount included in such judgment, and such attorneys’ fees obligation is intended to be severable from the other provisions of this Agreement and to survive and not be merged into any such judgment.
16.33Entire Agreement. The provisions of this Agreement constitute the entire agreement between the parties hereto and said Agreement may not be changed or modified in any manner except by written amendment fully executed by City and TCM. This Agreement supersedes the RFP and the TCM Proposal, except that the certifications, affidavits, commitments and undertakings of TCM set forth in (i) Section 4 of the TCM Proposal (Official Proposal Statement dated 10/21/2011), (ii) Section 14 of the TCM Proposal (Business Ethics Disclosure), (iii) Exhibit A of the TCM Proposal (TCM board resolution dated 10/4/2011), (iv) Exhibit B of the TCM Proposal (certified financial statements and information), and (v) the Administrative Requirements (items numbers 1 through 14 as described in the RFP) are incorporated herein by reference to the extent that the same are not in conflict with the terms of this Agreement (it being understood that the terms of this Agreement shall control). There are no representations, agreements or understandings, oral or written, between and among the parties relating to the subject matter contained in this Agreement which are not fully set forth herein. This is an integrated agreement. TCM acknowledges that it has conducted its own due diligence investigation of its prospects for successfully operating the Permitted Uses at the Premises, and has made its own determination of the accuracy of any information provided by City with respect to the financial results of any prior operator of any similar business at the Airport, that City has made no representations or warranties to TCM with respect to any of such matters, and that all prior discussions between City and TCM with respect to such matters are superseded by this Agreement.
16.34Conditions and Covenants. Each covenant herein is a condition, and each condition herein is as well a covenant by the parties hound thereby, unless waived in writing by the parties hereto.
16.35Gender and Plural Usage. The use of any gender herein shall include all genders and the use of any number shall be construed as the singular or the plural, all as the context may require.
16.36Time is of the Essence; Days. Time shall be of the essence in complying with the terms, conditions, and provisions of this Agreement. Unless otherwise expressly specified, “days” shall mean calendar days.
16.37Void Provision. If any provision of this Agreement is determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provision of this Agreement, and all such other provisions shall remain in full force and effect.
16.38Construction and Interpretation. It is the intention of the parties hereto that if any provision of this Agreement is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provision shall have the meaning which renders it valid. The language of this Agreement shall be construed according to its fair meaning, and not strictly for or against either City or TCM.
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16.39Section Headings. The section headings appearing herein are for the convenience of City and TCM, and shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of this Agreement.
16.40Waiver of Claims. TCM hereby waives any Claim against City and City Agents for loss of anticipated profits caused by any suit or proceeding directly or indirectly attacking the validity of this Agreement or any part hereof, or by any judgment or award in any suit or proceeding declaring this Agreement null, void or voidable, or delaying the same, or any part hereof, from being carried out. City hereby waives any Claim against TCM for loss of anticipated profits caused by any suit or proceeding directly or indirectly attacking the validity of this Agreement or any part hereof, or by any judgment or award in any suit or proceeding declaring this Agreement null, void or voidable, or delaying the same, or any part hereof, from being carried out.
16.41Waiver. Every provision herein imposing an obligation upon City or TCM is material inducement and consideration for the execution of this Agreement. No waiver by City or TCM of any Default or breach of any provision of this Agreement shall be deemed for any purpose to be a waiver of any Default or breach of any other provision hereof nor of any continuing or subsequent Default or breach of the same provision.
16.42Representations of TCM. TCM (and, if TCM is a corporation, partnership, limited liability company or other legal entity, such corporation, partnership, limited liability company or entity) hereby makes the following representations and warranties, each of which is material and being relied upon by City, is true in all respects as of the date of this Agreement, and shall survive the expiration or termination of the Agreement. TCM shall re-certify such representations to City periodically, upon City’s written request.
16.42.1If TCM is an entity, TCM is duly organized, validly existing and in good standing under the laws of the state of its organization, and is qualified to do business in the state in which the Premises is located, and the persons executing this Agreement on behalf of TCM have the full right and authority to execute this Agreement on behalf of TCM and to bind TCM without the consent or approval of any other person or entity. TCM has full power, capacity, authority and legal right to execute and deliver this Agreement and to perform all of its obligations hereunder. This Agreement is a legal, valid and binding obligation of TCM, enforceable in accordance with its terms.
16.42.2TCM has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of its assets, (iv) suffered the attachment or other judicial seizure of all or substantially all of its assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally within the last 5 years prior to the date of this Agreement.
16.42.3TCM hereby represents and warrants to City that TCM is not:
1.in violation of any Anti-Terrorism Law (as hereinafter defined);
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2.nor is any holder of any direct or indirect equitable, legal or beneficial interest in TCM, as of the date hereof: (A) conducting any business or engaging in any transaction or dealing with any Prohibited Person (as hereinafter defined), or any company with business operations in Sudan that are prohibited under Cal. Gov. Code §7513.6, including the governments of Cuba, Iran, North Korea, Myanmar and Syria and, including the making or receiving of any contribution of funds, goods or services to or for the benefit of any Prohibited Person or forbidden entity; (B) dealing in, or otherwise engaging in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224; or (C) engaging in or conspiring to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate any of the prohibitions set forth in, any Anti-Terrorism Law; and
3.a Prohibited Person, nor are any of TCM’s affiliates, officers, directors, shareholders, members or its Guarantor, as applicable, a Prohibited Person.
If at any time any of these representations becomes false, then it shall be considered a material Default under this Agreement. As used herein, “Anti-Terrorism Law” is defined as any law relating to terrorism, anti-terrorism, money-laundering or anti-money laundering activities, including without limitation the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986, Executive Order No. 13224, Title 3 of the USA Patriot Act, Cal. Gov. Code §7513.6, and any regulations promulgated under any of them. As used herein “Executive Order No. 13224” is defined as Executive Order No. 13224 on Terrorist Financing effective September 24, 2001, and relating to “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism”, as may be amended from time to time. “Prohibited Person” is defined as (i) a person or entity that is listed in the Annex to Executive Order No. 13224, or a person or entity owned or controlled by an entity that is listed in the Annex to Executive Order No. 13224; (ii) a person or entity with whom Landlord is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; or (iii) a person or entity that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, http://www.treas.gov/ofac/t11sdn.pdf or at any replacement website or other official publication of such list. “USA Patriot Act“ is defined as the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” (Public Law 107-56), as may be amended from time to time.
16.42.4Additional Representations of TCM. TCM represents as of the date of this Agreement that the representations and warranties of TCM contained in TCM’s Proposal and in any financial statement or other materials provided by TCM are true, correct and complete, and shall be deemed restated in full in this Agreement.
16.43TCM Acknowledgement and Waiver. TCM expressly represents, acknowledges and agrees that: (a) in connection with this Agreement, the rights granted to TCM pursuant to this Agreement, or any termination or expiration thereof, TCM has no right or entitlement whatsoever to receive any relocation assistance, moving expenses, goodwill or other payments or compensation under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C. Section 4601 et seq., the California Relocation Assistance Law, as amended, California Government Code Section 7260 et seq., California Eminent Domain Law (California Code of Civil Procedure Section 1230.010 et seq.), the law of inverse
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condemnation, and/or under any other relocation, eminent domain, condemnation or similar law now or hereafter in effect (collectively, “Compensation Claims”); (b) TCM is not entitled to assert any Compensation Claims arising out of or in connection with TCM’s surrender or vacation of the Premises; and (c) nothing in this Agreement shall create, or otherwise give rise to, any rights for TCM or any TCM Party to receive any relocation assistance, moving expenses, goodwill or other payments or compensation under the foregoing laws, all of which rights and Compensation Claims (to the extent the same may be applicable) are hereby waived and relinquished by TCM and the TCM Parties.
16.44Parties In Interest. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than City and TCM, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement. The TCM Parties are not third party beneficiaries of this Agreement.
16.45City Approval. Following the execution and delivery of this Agreement, whenever this Agreement calls for a matter to be approved or disapproved by or on behalf of City, then the written approval, disapproval, or consent of the Executive Director within the legal authority of the Executive Director, subject to the approval of the Office of the City Attorney as to form, shall constitute the approval, disapproval, or consent of City; provided, however, if the approval or consent by City is in excess of the Executive Director’s legal authority, then such matter shall be approved by the Board. Except as otherwise expressly set forth in this Agreement, with respect to any matter that is subject to the approval or consent of the Executive Director or the Board, such approval or consent may be given or withheld in the Executive Director’s or the Board’s sole and absolute discretion. Any approvals or consents required from or given by City under this Agreement shall be approvals of the City of Los Angeles Department of Airports acting as the owner and operator of the Airport, and shall not relate to, constitute a waiver of, supersede or otherwise limit or affect the rights or prerogatives of the City of Los Angeles as a government, including the right to grant or deny any permits required for construction or maintenance of the Premises and the right to enact, amend or repeal laws and ordinances, including, without limitation, those relating to zoning, land use, and building and safety. No approval or consent on behalf of City will be deemed binding upon City unless approved in writing as to form by the City Attorney.
16.46Board Order AO-5077 Exemption. With respect to the provision of products and services pursuant to this Agreement, TCM, its Concessionaires, and their respective vendors are expressly exempt from the Board-imposed license fee described in Board Order AO-5077 and related Staff Report, which license fee may, in the absence of such exemption, be assessed on the gross revenues derived from the provision of products and services pursuant to this Agreement.
16.47Compliance with Los Angeles City Charter Section 470(c)(12).
16.47.1TCM, subcontractors and their principals are obligated to fully comply with City of Los Angeles Charter Section 470(c)(12) and related ordinances, regarding limitations on campaign contributions and fundraising for certain elected City of Los Angeles officials or candidates for elected City of Los Angeles office if the contract is valued at $100,000 or more and requires approval of a City of Los Angeles elected official. Additionally, TCM is required to provide and update certain information to the City as specified by law. Any
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contractor subject to Charter Section 470(c)(12) shall include the following notice in any contract with a subcontractor expected to receive at least $100,000 for performance under this Agreement:
“Notice Regarding Los Angeles Campaign Contribution and Fundraising Restrictions.
As provided in Charter Section 470(c)(12) and related ordinances, you are subcontractor on City of Los Angeles contract # . Pursuant to City Charter Section 470(c)(12), subcontractor and its principals are prohibited from making campaign contributions and fundraising for certain elected City officials or candidates for elected City office for 12 months after the City contract is signed. Subcontractor is required to provide to contractor names and addresses of the subcontractor’s principals and contact information and shall update that information if it changes during the twelve (12) month time period. Subcontractor’s information included must be provided to contractor within five (5) business days. Failure to comply may result in termination of contract or any other available legal remedies including fines. Information about the restrictions may be found at the City Ethics Commission’s website at http://ethics.lacity.org/ or by calling 213-978-1960.”
16.47.2TCM, subcontractors and their principals shall comply with these requirements and limitations. Violation of this provision shall entitle the City to terminate this Agreement and pursue any and all legal remedies that may be available.
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IN WITNESS WHEREOF, City has caused this Agreement to be executed on its behalf by Executive Director and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
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WESTFIELD AMERICA, INC., |
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EXHIBIT A-1
TERMINAL 1 - AREA 11
(ATTACHED)
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EXHIBIT A-1 |
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EXHIBIT A-2
TERMINAL 1 - AREA 12
(ATTACHED)
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EXHIBIT A-3
TERMINAL 3 - AREA 13
(ATTACHED)
TCM Concession Agreement-1/3/6 |
EXHIBIT A-3 |
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EXHIBIT A-4
TERMINAL 3 - AREA 14
(ATTACHED)
TCM Concession Agreement-1/3/6 |
EXHIBIT A-4 |
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EXHIBIT A-5
TERMINAL 6 - AREA 15
(ATTACHED)
TCM Concession Agreement-1/3/6 |
EXHIBIT A-5 |
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EXHIBIT A-6
TERMINAL 6 - AREA 16
(ATTACHED)
TCM Concession Agreement-1/3/6 |
EXHIBIT A-6 |
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EXHIBIT A-7
THEME BUILDING - AREA 17
(ATTACHED)
TCM Concession Agreement-1/3/6 |
EXHIBIT A-7 |
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EXHIBIT B
CONCEPTUAL PLAN
(ATTACHED)
TCM Concession Agreement-1/3/6 |
EXHIBIT B |
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EXHIBIT C
COMMENCEMENT DATE MEMORANDUM
LOS ANGELES INTERNATIONAL AIRPORT
TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT
This Commencement Date Memorandum (this “Memorandum”) is dated as of , 201 , in connection with the above-referenced Los Angeles International Airport Terminal Commercial Management Concession Agreement dated , 2012 (the “Agreement”) between (“TCM”) and THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (“City”), acting by order of and through its Board of Airport Commissioners (“Board”).
City and TCM hereby confirm that the commencement date of the Primary Term for the Premises described below shall be as follows:
Premises |
Square |
Primary Term Commencement |
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The Expiration Date is as set forth in Section 2.2 of the Agreement.
APPROVED AS TO FORM: |
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CITY OF LOS ANGELES |
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Carmen A. Trutanich, City Attorney |
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Date: |
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By: |
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Executive Director |
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Department of Airports |
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By: |
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Deputy/Assistant City Attorney |
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ATTEST: |
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By: |
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By: |
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(Signature) |
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(Signature) |
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Print Name and Title |
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Print Name and Title |
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
EXHIBIT C |
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EXHIBIT D
FORM OF GUARANTY AGREEMENT
(ATTACHED)
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
EXHIBIT D |
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EXHIBIT E
FORM OF STORAGE SPACE ADDENDUM
(ATTACHED)
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
EXHIBIT E |
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STORAGE SPACE ADDENDUM
THIS STORAGE SPACE ADDENDUM (this “Addendum”) is made as of , 201_ by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (“City”), acting by order of and through its Board of Airport Commissioners (“Board”), and , a (“TCM”), and upon execution and delivery of this Addendum by Executive Director shall become a part of that certain Los Angeles International Airport Terminal Commercial Management Concession Agreement dated as of , 2012, by and between City and TCM with respect to the Premises (as defined therein) (the “Concession Agreement”).
1. |
Defined Terms. All initially capitalized terms not otherwise defined in this Addendum shall have the meanings set forth in the Concession Agreement, unless the context clearly indicates otherwise. |
2. |
Lease of Storage Space. In consideration of the payment of Storage Rent (hereinafter defined) and keeping and performance of the covenants and agreements by TCM as set forth in this Addendum and in the Concession Agreement, City leases to TCM approximately _____ square feet of storage space (the “Storage Space”), as shown on the drawing attached to this Addendum as Schedule 1. |
3. |
Term of Storage Space Addendum. TCM’s right to use the Storage Space will commence at 12:00 noon on , 201_, and terminate on the earlier of (a) thirty (30) days’ prior written notice from either of City or TCM to the other, and (b) the concurrent expiration or earlier termination of the Concession Agreement. In connection with the expiration or earlier termination of this Addendum, TCM shall remove all of its goods, furniture, equipment, files, supplies and other personal property from the Storage Space and shall surrender the Storage Space in substantially the same condition as received by TCM. |
4. |
Storage Rent. Monthly base rent for the Storage Space (“Base Storage Rent”) will be $ . In addition to monthly Base Storage Rent, TCM shall pay as additional storage rent (“Additional Storage Rent”) to City an amount equal to [electricity, CAM, taxes]. Electricity (and any other utilities) with respect to each Storage Space shall be separately metered at TCM’s expense, and shall be invoiced directly to TCM. If Executive Director agrees that it is impossible to separately meter a given utility at a given Storage Space, then TCM shall pay to City as Additional Rent an equitable and non-discriminatory pro-rata amount of said utility invoice which includes said Storage Space, based upon Executive Director’s good faith estimate of TCM’s share thereof. For purposes of this Addendum, “Storage Rent” shall mean Base Storage Rent and all Additional Storage Rent payable to City hereunder. All Storage Rent will be payable in advance, without notice, on the first day of each month during the term, at the place designated in the Basic Information of the Concession Agreement for the payment of Rent, or at such place as City may from time to time designate in writing. |
5. |
Use of Storage Space. TCM will use the Storage Space in a careful, safe and proper manner, in accordance with all applicable Laws and any Rules and Regulations. TCM agrees to be fully liable for any damages or losses sustained by City as a result of any overloading by TCM] TCM will pay City as Additional Storage Rent on demand for any damage to the Storage Space caused |
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
1 EXHIBIT E |
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by misuse or abuse by TCM, its agent or employees, or any other person entering the Storage Space. TCM will not commit waste nor permit waste to be committed nor permit any nuisance in the Storage Space.
6. |
Lighting; Electricity. City agrees, during the Term of this Addendum, to furnish and provide such electric lighting service to and such ingress and egress from the Storage Space during ordinary business hours as may, at the judgment of City, be reasonably required for the use and occupancy of the Storage Space pursuant to the terms of this Addendum. TCM agrees that City will not be liable for failure to provide such lighting service or ingress and egress during any period when City uses reasonable diligence to supply them. City reserves the right temporarily to discontinue electric service, or ingress or egress, at such times as may be necessary when City is unable to provide them by reason of accident, unavailability of employees, repairs, alterations or improvements, or whenever by reason of strikes, walkouts, riots, acts of God, or any other happening beyond the control of City. City will be under no obligation to furnish heating or air conditioning service to the Storage Space. City will have the right to enter the Storage Space to examine and inspect it as provided in the Concession Agreement and to require the removal of any object or material City deems hazardous to the safety or operation of the Terminal or building in which the Storage Space is located. |
7. |
TCM Contacts. TCM will provide City a list of TCM’s appointed representatives and their telephone numbers for the Storage Space. TCM may, from time to time, change the individuals who are designated as TCM’s representatives by written notice to City of any such change. City will contact TCM’s representative only to obtain access to the Storage Space. City will place signs identifying the location and telephone number for TCM representative on each Storage Space. |
8. |
Storage at TCM’s Risk; Condition of Storage Space. TCM agrees that all property of TCM kept |
9. |
Applicability of the Concession Agreement. Except to the extent specifically provided otherwise in this Addendum, the provisions of the Concession Agreement (other than Sections ____ ) shall be applicable to the Storage Space and this Addendum as if they were specifically set forth in this Addendum. During the term of this Addendum, references in the Concession Agreement to the “Premises” will be deemed to refer to the “Storage Space,” unless the context clearly indicates otherwise. In the event of any express conflict between the provisions of the Concession Agreement and the provisions of this Addendum, the provisions of this Addendum shall control. |
10. |
Cross-Default. Any default by TCM in the performance of TCM’s obligations under this Addendum will also be a default under the Concession Agreement. |
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
2 EXHIBIT E |
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11. |
Improvements to Storage Space; Relocation and Partial Termination. TCM shall not make any alterations or improvements to the Storage Space without the prior written consent of City and compliance with the applicable provisions of the Concession Agreement. City expressly reserves the rights (a) to relocate the Storage Space to such other storage area as may be designated by City, or (b) to partially terminate this Addendum with respect to any portion of the Storage Space upon not less than thirty (30) days prior written notice to TCM. Notwithstanding anything to the contrary provided in the Concession Agreement or otherwise, TCM shall not be entitled to any compensation or reimbursement in connection with such relocation or partial termination (including, without limitation, any compensation or reimbursements for moving expenses, or for alterations or improvements made to the Storage Space); provided, however, the Storage Rent shall be equitably adjusted in connection with any reduction in the Storage Space. |
12. |
Counterparts. This Addendum may be executed in counterparts, but shall become effective only after each party has executed a counterpart hereof; all said counterparts when taken together, shall constitute the entire single agreement between the parties. |
[Signatures on next page]
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
3 EXHIBIT E |
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IN WITNESS WHEREOF, City has caused this Addendum to be executed on its behalf by Executive Director and TCM has caused the same to be executed by its duly authorized officers and its corporate seal to be hereunto affixed, all as of the day and year first hereinabove written.
APPROVED AS TO FORM: |
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CITY OF LOS ANGELES |
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Carmen A. Trutanich, City Attorney |
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Date: |
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By: |
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Executive Director |
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Department of Airports |
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By: |
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Deputy/Assistant City Attorney |
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ATTEST: |
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By: |
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By: |
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(Signature) |
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(Signature) |
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Print Name and Title |
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Print Name and Title |
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
4 EXHIBIT E |
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SCHEDULE 1
STORAGE SPACE DRAWING
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
5 EXHIBIT E |
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EXHIBIT F
FORM OF IMPROVEMENT PAYMENT AND PERFORMANCE BONDS
(ATTACHED)
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
EXHIBIT F |
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EXHIBIT G
INSURANCE
(ATTACHED)
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
EXHIBIT G |
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EXHIBIT H
FORM OF DECLARATION OF COMPLIANCE FOR CHILD SUPPORT
(ATTACHED)
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
EXHIBIT H |
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EXHIBIT I
EQUAL EMPLOYMENT PRACTICES
(ATTACHED)
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
EXHIBIT I |
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EXHIBIT J
AFFIRMATIVE ACTION PROGRAM
(ATTACHED)
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
EXHIBIT J |
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EXHIBIT K
LIVING WAGE ORDINANCES
(ATTACHED)
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
EXHIBIT K |
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EXHIBIT L
LIVING WAGE POLICY DECLARATION OF COMPLIANCE FORM
(ATTACHED)
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
EXHIBIT L |
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EXHIBIT M
SERVICE CONTRACT WORKER RETENTION ORDINANCE
(ATTACHED)
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
EXHIBIT M |
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EXHIBIT N
CONTRACTOR RESPONSIBILITY PROGRAM PLEDGE OF COMPLIANCE RULES
(ATTACHED)
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
EXHIBIT N |
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EXHIBIT O
FIRST SOURCE HIRING PROGRAM
(ATTACHED)
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
EXHIBIT O |
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EXHIBIT P
ALTERNATIVE FUEL VEHICLE PROGRAM REGULATIONS
(ATTACHED)
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
EXHIBIT P |
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TABLE OF CONTENTS
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Page |
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I |
PRE-TERM DEVELOPMENT PLANNING |
3 |
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1.1 |
TCM’s Obligations During Pre-Term Development Phase |
3 |
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1.2 |
Concession Location Areas |
3 |
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1.3 |
Definitive Improvement Plan |
5 |
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1.4 |
Contents of Definitive Improvement Plan |
5 |
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1.5 |
Time for Submission of Definitive Improvement Plan |
7 |
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1.6 |
Response to Comments by the Executive Director |
9 |
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1.7 |
Rejection of Definitive Improvement Plan |
9 |
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1.8 |
Approval of Definitive Improvement Plan |
9 |
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1.9 |
Time for Approval of Definitive Improvement Plans |
12 |
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1.10 |
Delivery; Notice of Delivery |
13 |
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1.11 |
Initial Non-Premises Improvements In Excess of Threshold Amount |
14 |
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1.12 |
Construction of Initial Non-Premises Improvements |
14 |
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1.13 |
Acquisition of Initial Non-Premises Improvements |
16 |
II |
PREMISES; PRIMARY TERM; EARLY TERMINATION |
18 |
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2.1 |
Premises; Units; TCM Common Areas; TCM Storage Premises |
18 |
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2.2 |
Primary Term |
19 |
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2.3 |
Early Termination for Failure to Meet Performance Metrics |
19 |
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2.4 |
Surrender |
19 |
III |
TERMINAL COMMERCIAL MANAGER RIGHTS AND DUTIES |
20 |
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3.1 |
Terminal Commercial Manager |
20 |
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3.2 |
Business and Operations Plan |
20 |
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
i |
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TABLE OF CONTENTS (cont.)
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3.3 |
Unit Concession Agreements |
21 |
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3.4 |
Permitted Uses |
25 |
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3.5 |
Airport-wide Concessions |
26 |
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3.6 |
General Obligation to Operate |
27 |
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3.7 |
Right to Promote Products; Restriction on Advertising |
27 |
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3.8 |
Quiet-Enjoyment |
27 |
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3.9 |
As-Is Condition |
27 |
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3.10 |
Rights are Not Exclusive |
28 |
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3.11 |
General Disputes |
28 |
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3.12 |
No Other Uses |
28 |
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3.13 |
Rules and Regulations |
28 |
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3.14 |
Storage Space |
29 |
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3.15 |
Common Areas |
29 |
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3.16 |
Public Address System |
29 |
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3.17 |
Wireless Communications |
30 |
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3.18 |
Pricing |
30 |
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3.19 |
Airport Employee Discount |
30 |
IV |
PAYMENTS BY TCM |
30 |
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4.1 |
Base Rent; Minimum Annual Guaranteed Rent; Percentage Rent; Storage Premises Rent |
30 |
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4.2 |
No Abatement |
31 |
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4.3 |
Additional Charges |
31 |
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4.4 |
Utilities |
31 |
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4.5 |
Refuse Removal |
31 |
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
ii |
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TABLE OF CONTENTS (cont.)
|
4.6 |
Other Fees and Charges |
32 |
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4.7 |
Method of Payment |
32 |
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4.8 |
Books and Records |
33 |
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4.9 |
Taxes |
34 |
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4.10 |
Faithful Performance Guarantee |
35 |
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4.11 |
MAG Adjustment for Enplanement Decline |
36 |
V |
OPERATING STANDARDS |
37 |
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5.1 |
Operating Standards |
37 |
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5.2 |
Staffing and Personnel |
37 |
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5.3 |
TCM’s Key Personnel |
39 |
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5.4 |
Hours of Operation |
39 |
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5.5 |
Monthly Sales Reports; Credit Cards |
39 |
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5.6 |
Deliveries; Access and Coordination |
40 |
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5.7 |
Quality Assurance Audits |
41 |
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5.8 |
Prohibited Acts |
42 |
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5.9 |
Signs, Promotions & Displays |
43 |
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5.10 |
Licenses and Permits |
44 |
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5.11 |
Compliance with Laws |
44 |
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5.12 |
Airport Operations |
45 |
VI |
AIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISE PROGRAM |
45 |
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6.1 |
Compliance with Department of Transportation (DOT) |
45 |
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6.2 |
Substitutions |
46 |
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6.3 |
Monthly Report |
46 |
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
iii |
|
TABLE OF CONTENTS (cont.)
VII |
IMPROVEMENTS AND REFURBISHMENTS |
46 |
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7.1 |
TCM’s Construction Obligations |
46 |
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7.2 |
Prevailing Wage |
46 |
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7.3 |
Condition of Premises on Delivery Date |
47 |
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7.4 |
Construction of Initial Premises Improvements |
47 |
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7.5 |
Improvement Financial Obligation |
50 |
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7.6 |
Mid-Term Refurbishment |
50 |
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7.7 |
City Approval of Improvements |
51 |
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7.8 |
Further Provisions Regarding Design and Construction |
51 |
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7.9 |
Alterations |
52 |
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7.10 |
Building Codes |
52 |
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7.11 |
Workers’ Compensation |
52 |
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7.12 |
Improvement Payment and Performance Bond |
53 |
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7.13 |
Telecommunications Facilities |
53 |
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7.14 |
Deliveries upon Completion |
54 |
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7.15 |
No Liens |
55 |
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7.16 |
Ownership of Improvements |
56 |
VIII |
MAINTENANCE AND REPAIR |
56 |
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8.1 |
Maintenance and Repair |
56 |
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8.2 |
Cleaning and Routine Upkeep |
56 |
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8.3 |
Maintenance of Plumbing |
57 |
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8.4 |
City May Repair |
57 |
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8.5 |
Right to Enter Premises |
57 |
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
iv |
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TABLE OF CONTENTS (cont.)
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8.6 |
Provision of Utilities |
58 |
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8.7 |
Pest Control |
58 |
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8.8 |
Evidence of Payment |
59 |
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8.9 |
Prevailing Wage |
59 |
IX |
TERMINATION FOR CONVENIENCE; TERMINATION PAYMENTS; QUALIFIED INVESTMENTS |
59 |
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9.1 |
Termination for Convenience |
59 |
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9.2 |
Termination Payment |
60 |
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9.3 |
Qualified Investments Defined |
63 |
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9.4 |
Additional Conditions Applicable to Qualified Investments |
64 |
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9.5 |
No Other Compensation |
65 |
X |
AIRPORT CONSTRUCTION; AIRPORT OPERATIONS |
65 |
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10.1 |
Airport Construction; Airport Operations |
65 |
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10.2 |
No Right to Temporary Premises |
66 |
XI |
TERMINATION/CANCELLATION |
66 |
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11.1 |
Defaults |
66 |
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11.2 |
City’s Remedies |
68 |
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11.3 |
Right to Remove Equipment |
71 |
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11.4 |
Surrender to be in Writing |
71 |
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11.5 |
Additional Rights of City |
71 |
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11.6 |
Acceptance Is Not a Waiver |
71 |
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11.7 |
Waiver Is Not Continuous |
72 |
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11.8 |
Waiver of Redemption and Damages |
72 |
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11.9 |
Survival of TCM’s Obligations |
72 |
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
v |
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TABLE OF CONTENTS (cont.)
|
11.10 |
Cancellation or Termination By TCM |
72 |
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11.11 |
Damaged Improvements |
72 |
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11.12 |
Service During Removal |
73 |
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11.13 |
City May Renovate |
73 |
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11.14 |
Viewing By Prospective Competitors |
73 |
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11.15 |
Tenancy at Sufferance |
73 |
XII |
DAMAGE OR DESTRUCTION TO PREMISES |
73 |
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12.1 |
Damage or Destruction to Premises |
73 |
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12.2 |
Limits of City’s Obligations |
74 |
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12.3 |
Destruction Near End of Term |
75 |
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12.4 |
Destruction of Facility |
75 |
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12.5 |
Waiver |
75 |
XIII |
LIABILITY |
75 |
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13.1 |
Liability |
75 |
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13.2 |
City Held Harmless |
76 |
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13.3 |
Insurance |
76 |
XIV |
TRANSFER |
78 |
|
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14.1 |
Transfer Prohibited |
78 |
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14.2 |
Transfer |
78 |
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14.3 |
Unit Concession Agreements Not A Transfer |
79 |
|
14.4 |
No Further Consent Implied |
79 |
|
14.5 |
No Release |
79 |
|
14.6 |
Payment of City’s Costs |
79 |
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
vi |
|
TABLE OF CONTENTS (cont.)
|
14.7 |
Incorporation of Terms |
79 |
|
14.8 |
Right to Collect Rent Directly |
80 |
|
14.9 |
Reasonableness of Restrictions |
80 |
|
14.10 |
Transfer Premium |
80 |
XV |
HAZARDOUS MATERIALS |
80 |
|
|
15.1 |
Hazardous Materials |
80 |
|
15.2 |
Prohibition; TCM Responsibility |
81 |
|
15.3 |
Spill - Clean-Up |
82 |
|
15.4 |
Provision to City of Environmental Documents |
82 |
|
15.5 |
Hazardous Materials Continuing Obligation |
83 |
XVI |
OTHER PROVISIONS |
83 |
|
|
16.1 |
Other Provisions |
83 |
|
16.2 |
Cross Default |
83 |
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16.3 |
City’s Right of Access and Inspection |
83 |
|
16.4 |
Automobiles and Other Equipment |
83 |
|
16.5 |
Notices |
84 |
|
16.6 |
Agent for Service of Process |
84 |
|
16.7 |
Restrictions and Regulations |
84 |
|
16.8 |
Right to Amend |
85 |
|
16.9 |
Independent Contractor |
85 |
|
16.10 |
Disabled Access |
86 |
|
16.11 |
Child Support Orders |
86 |
|
16.12 |
Business Tax Registration |
86 |
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TCM Concession Agreement-1/3/6 #301840/5-9-12 |
vii |
|
TABLE OF CONTENTS (cont.)
|
16.13 |
Ordinance and Los Angeles Administrative Code (“Code”) Language Governs |
86 |
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16.14 |
Amendments to Ordinances and Codes |
87 |
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16.15 |
Non-Discrimination and Affirmative Action Provisions |
87 |
|
16.16 |
Security – General |
88 |
|
16.17 |
Visual Artists’ Rights Act |
89 |
|
16.18 |
Living Wage Ordinance General Provisions |
89 |
|
16.19 |
Service Contract Worker Retention Ordinance |
91 |
|
16.20 |
Equal Benefits Ordinance |
91 |
|
16.21 |
Contractor Responsibility Program |
92 |
|
16.22 |
First Source Hiring Program for Airport Employers |
92 |
|
16.23 |
Environmentally Favorable Options |
92 |
|
16.24 |
Municipal Lobbying Ordinance |
92 |
|
16.25 |
Labor Peace Agreement |
92 |
|
16.26 |
Alternative Fuel Vehicle Requirement Program |
93 |
|
16.27 |
Ownership of Work Product |
93 |
|
16.28 |
Estoppel Certificate |
93 |
|
16.29 |
Subordination of Agreement |
93 |
|
16.30 |
Laws of California; Venue |
93 |
|
16.31 |
Agreement Binding Upon Successors |
93 |
|
16.32 |
Attorneys’ Fees |
93 |
|
16.33 |
Entire Agreement |
94 |
|
16.34 |
Conditions and Covenants |
94 |
|
16.35 |
Gender and Plural Usage |
94 |
|
TCM Concession Agreement-1/3/6 #301840/5-9-12 |
viii |
|
TABLE OF CONTENTS (cont.)
|
16.36 |
Time is of the Essence; Days |
94 |
|
16.37 |
Void Provision |
94 |
|
16.38 |
Construction and Interpretation |
94 |
|
16.39 |
Section Headings |
95 |
|
16.40 |
Waiver of Claims |
95 |
|
16.41 |
Waiver |
95 |
|
16.42 |
Representations of TCM |
95 |
|
16.43 |
TCM Acknowledgement and Waiver |
96 |
|
16.44 |
Parties In Interest |
97 |
|
16.45 |
City Approval |
97 |
|
16.46 |
Board Order AO-5077 Exemption |
97 |
|
16.47 |
Compliance with Los Angeles City Charter Section 470(c)(12) |
97 |
LIST OF EXHIBITS
Exhibit A-1: |
Terminal 1 - Area 11 |
Exhibit A-2: |
Terminal 1 - Area 12 |
Exhibit A-3: |
Terminal 3 - Area 13 |
Exhibit A-4: |
Terminal 3 - Area 14 |
Exhibit A-5: |
Terminal 6 – Area 15 |
Exhibit A-6 |
Terminal 6 – Area 16 |
Exhibit A-7 |
Theme Building – Area 17 |
Exhibit B: |
Conceptual Plan |
Exhibit C: |
Commencement Date Memorandum |
|
TCM Concession Agreement-1/3/6 #301840/5-9-12 |
ix |
|
TABLE OF CONTENTS (cont.)
Exhibit D: |
Form of Guaranty Agreement |
Exhibit E: |
Form of Storage Space Addendum |
Exhibit F: |
Form of Improvement Payment and Performance Bonds |
Exhibit G: |
Insurance |
Exhibit H: |
Form of Declaration of Compliance for Child Support |
Exhibit I: |
Equal Employment Practices |
Exhibit J: |
Affirmative Action Program |
Exhibit K: |
Living Wage Ordinances |
Exhibit L: |
Living Wage Policy Declaration of Compliance Form |
Exhibit M: |
Service Contract Worker Retention Ordinance |
Exhibit N: |
Contractor Responsibility Program Pledge of Compliance Rules |
Exhibit O: |
First Source Hiring Program |
Exhibit P: |
Alternative Fuel Vehicle Program Regulations |
|
TCM Concession Agreement-1/3/6 #301840/5-9-12 |
x |
|
TABLE OF DEFINED TERMS
Term |
Page |
Section |
ACDBE Rules |
53 |
6.1 |
ACDBEs |
53 |
6.1 |
ADA |
53 |
5.11.1 |
Additional Product or Service |
28 |
3.4.1 |
Additional Rent |
33 |
4.1.1 |
Adjustment Date |
34 |
4.1.2.1 |
Administrative Fee |
32 |
3.18.2 |
Affiliate |
73 |
9.4 |
Affirmative Action Program |
96 |
16.15.5 |
Agreement |
1 |
Introduction |
Airport |
3 |
Recitals |
Airport Pricing Policy |
32 |
3.18.1 |
Airport-wide Concessionaire(s) |
28 |
3.5 |
Airport-wide Concessions |
28 |
3.5 |
Airport-wide Concession Uses |
28 |
3.5 |
Alterations |
60 |
7.9 |
Anti-Terrorism Law |
104 |
16.42.3 |
Area(s) |
3 |
1.2 |
Auditable Costs |
18 |
1.13.4 |
Base CPI Month |
34 |
4.1.2.1 |
Base Percentage Rent |
35 |
4.1.3 |
Base Rent |
33 |
4.1.1 |
Base Year Decline Adjustment Year |
43 |
4.11 |
Basic Information |
1 |
Basic Information |
Board |
1 |
Introduction |
Books and Records |
40 |
4.8 |
BTRC |
95 |
16.12 |
Business and Operations Plan |
22 |
3.2 |
Chronic Delinquency |
75 |
11.1.13 |
CIP Approval |
57 |
7.4.5 |
City |
1 |
Introduction |
City Agents |
47 |
5.2.4 |
City Information |
14 |
1.10.1 |
City Policies |
101 |
16.23 |
Claims |
84 |
13.2 |
Code |
95 |
16.13 |
Combined On-Site Operating Staff |
46 |
5.2.1(a) |
Common Areas |
31 |
3.1.5 |
Conceptual Plan |
5 |
1.3 |
Concessionaire Improvement Plan |
55 |
7.4.1 |
Concessionaire Initial Premises Improvements |
11 |
1.8.2 |
|
TCM Concession Agreement-1/3/6 #301840/5-9-12 |
i |
|
TABLE OF DEFINED TERMS (cont.)
Concessionaire(s) |
21 |
3.1 |
Conditions of Approval |
12 |
1.8.6 |
Construction Approval Process |
59 |
7.7 |
Contingent Percentage Rent |
35 |
4.1.3 |
Convenience Termination Compliance Date |
69 |
9.2.2 |
Convenience Termination Date |
68 |
9.1 |
Convenience Termination Notice |
67 |
9.1 |
Convenience Termination Payment |
69 |
9.2.1 |
CPI |
34 |
4.1.2.1 |
CPI Adjusted Minimum Annual Guaranteed Rent |
34 |
4.1.2.1 |
Default |
74 |
11.1 |
Deficiency |
41 |
4.8.2 |
Definitive Improvement Plan |
5 |
1.3 |
Delivery Date |
13 |
1.10 |
Delivery Notice |
13 |
1.10 |
Design and Construction Handbook |
10 |
1.8 |
DIP Approval |
9 |
1.8 |
Dispute Notice |
18 |
1.13.3 |
Early Termination |
19 |
2.3 |
Early Termination Compliance Date |
70 |
9.2.4 |
Early Termination Expiration Date |
20 |
2.3.1 |
Early Termination Notice |
19 |
2.3 |
Early Termination Payment |
70 |
9.2.3 |
EBO |
100 |
16.20 |
Effective Date |
3 |
1.1 |
EITC |
98 |
16.18 |
Environmental Claims |
90 |
15.2 |
Equal Employment Practices |
96 |
16.15.4 |
Executive Director |
3 |
1.1 |
Executive Order No. 13224 |
104 |
16.42.3 |
Expiration Date |
19 |
2.2 |
Facilit(y)ies |
3 |
1.1 |
Financial Statements |
39 |
4.7.5 |
Force Majeure |
8 |
1.5 |
FPG |
42 |
4.10 |
FPG Amount |
42 |
4.10 |
FSHP |
101 |
16.22 |
Guarantor |
74 |
11.1.3 |
Hazardous Materials |
89 |
15.1 |
Hazardous Materials Laws |
90 |
15.2 |
High Priority Area(s) |
12 |
1.9 |
Initial Minimum Investment Amount |
58 |
7.5 |
Initial Non-Premises Improvements |
11 |
1.8.3 |
Initial Non-Premises Improvements Acquisition Cost |
17 |
1.13.1 |
|
TCM Concession Agreement-1/3/6 #301840/5-9-12 |
ii |
|
|
TCM Concession Agreement-1/3/6 #301840/5-9-12 |
iii |
|
TABLE OF DEFINED TERMS (cont.)
Initial Non-Premises Rent Credit |
16 |
1.13 |
Initial Premises Improvements |
11 |
1.8.2 |
Interest Costs |
17 |
1.13.1 |
Laws |
52 |
5.11.1 |
LOC |
42 |
4.10.3 |
LPA |
101 |
16.25 |
LWO |
98 |
16.18 |
MAG |
33 |
4.1.2 |
MAG Course of Construction Amount |
71 |
9.3 |
MAG Suspension Plan |
27 |
3.3.9 |
Mid-Term Refurbishment |
58 |
7.6 |
Mid-Term Refurbishment Completion Date |
58 |
7.6 |
Mid-Term Refurbishment Plan |
58 |
7.6.1 |
Minimum Annual Guaranteed Rent |
33 |
4.1.2 |
Minimum Hours of Operation |
47 |
5.4.1 |
Minimum Mid-Term Refurbishment Amount |
58 |
7.6.2 |
Minimum Per Square Foot MAG Amount |
33 |
4.1.2 |
Monthly MAG Payment |
33 |
4.1.2 |
Monthly Percentage Rent Payment |
35 |
4.1.3 |
Non-Discrimination Policy |
53 |
6.1 |
Non-ERISA Benefits |
100 |
16.20 |
Non-Premises Completion Date |
11 |
1.8.5 |
Notice of Readiness |
10 |
1.8 |
Other Alterations |
72 |
9.3 |
Parcel(s) |
6 |
1.4 |
pass through costs |
36 |
4.1.4 |
Payment Request Completion Date |
17 |
1.13.2 |
Percentage Rent |
35 |
4.1.3 |
Performance Metrics |
20 |
2.3.2 |
Performance Metrics Measurement Period |
21 |
2.3.3 |
Permitted Hazardous Materials |
89 |
15.2 |
Permitted Use(s) |
27 |
3.4 |
Personnel |
46 |
5.2.1 |
Pre-Existing Hazardous Material |
90 |
15.2 |
Premises |
19 |
2.1 |
Premises Completion Date |
11 |
1.8.4 |
Primary Term |
19 |
2.2 |
Prior Year Decline Adjustment Year |
43 |
4.11 |
Private Restrictions |
52 |
5.11.1 |
Prohibited Person |
104 |
16.42.3 |
Qualified Investment(s) |
71 |
9.3 |
Qualifying Project |
27 |
3.3.9 |
Recycling Program |
49 |
5.6.2 |
Registered Agent |
93 |
16.6 |
|
TCM Concession Agreement-1/3/6 #301840/5-9-12 |
iv |
|
|
TCM Concession Agreement-1/3/6 #301840/5-9-12 |
v |
|
TABLE OF DEFINED TERMS (cont.)
Rent |
33 |
4.1.1 |
RFP |
3 |
Recitals |
Rules and Regulations |
31 |
3.13 |
SCWRO |
99 |
16.19 |
Storage Premises Rent |
37 |
4.1.5 |
TCM |
1 |
Introduction |
TCM Additional Space Proposal |
4 |
1.2.1 |
TCM Common Area(s) |
19 |
2.1 |
TCM Contingencies |
7 |
1.4(e) |
TCM Improvement Allowance |
35 |
4.1.3 |
TCM Improvement Allowance Offset |
71 |
9.2.6 |
TCM Initial Premises Improvements |
11 |
1.8.1 |
TCM Management Fee |
35 |
4.1.3 |
TCM Party(ies) |
52 |
5.11.1 |
TCM Proposal |
76 |
11.1.19 |
TCM Revenues |
36 |
4.1.4 |
TCM’s Maintenance Records |
64 |
8.1 |
TCM’s Section 9.2.1(a) Un-Amortized Qualified Investment Amount |
69 |
9.2.1(a) |
TCM’s Section 9.2.3(a) Un-Depreciated Qualified Investment Amount |
70 |
9.2.3(a) |
TCM Storage Premises |
19 |
2.1 |
Telecom Documentation |
62 |
7.13.1 |
Telecommunication Facilities |
61 |
7.13.1 |
Telecommunication Service Providers |
61 |
7.13.1 |
Terminal 1 – Area 11 |
3 |
1.2 |
Terminal 1 – Area 12 |
3 |
1.2 |
Terminal 3 – Area 13 |
3 |
1.2 |
Terminal 3 – Area 14 |
3 |
1.2 |
Terminal 6 – Area 15 |
3 |
1.2 |
Terminal 6 – Area 16 |
3 |
1.2 |
Terminated Premises |
68 |
9.1 |
Termination for Convenience |
67 |
9.1 |
Termination Release |
68 |
9.2 |
Theme Building – Area 17 |
3 |
1.2 |
Transfer |
86 |
14.1 |
Transfer Request |
86 |
14.1 |
Unit Concession Agreement(s) |
21 |
3.1 |
Unit(s) |
19 |
2.1 |
USA Patriot Act |
105 |
16.42.3 |
VARA |
97 |
16.17 |
worth at the time of award |
77 |
11.2.1 |
Year |
33 |
4.1.1 |
|
TCM Concession Agreement-1/3/6 #301840/5-9-12 |
vi |
|
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.20.1
|
Board File |
|
No. LAA-8640A |
FIRST AMENDMENT TO LOS ANGELES INTERNATIONAL AIRPORT TERMINAL
COMMERCIAL MANAGEMENT CONCESSION AGREEMENT FOR TERMINALS 1,
3 AND 6 AT LOS ANGELES INTERNATIONAL AIRPORT BETWEEN THE CITY OF
LOS ANGELES AND WESTFIELD AIRPORTS, LLC CONCERNING
THE AMENDMENT OF LAA-8640
This First Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminals 1, 3 and 6 at Los Angeles International Airport, between the City of Los Angeles and Westfield Airports, LLC (“First Amendment”), is made and entered into this 9th day of June, 2016, at Los Angeles, California by and between THE CITY OF LOS ANGELES, through its DEPARTMENT OF AIRPORTS, a municipal corporation (hereinafter collectively referred to as “City”), acting by order of and through its Board of Airport Commissioners (hereinafter referred to as “Board”) and WESTFIELD AIRPORTS, LLC, f/k/a Westfield Concession Management, LLC (“TCM”), a Delaware limited liability company, concerning the amendment of the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminals 1, 3 and 6, LAA-8640, dated June 22, 2012, between the City of Los Angeles and TCM.
RECITALS
WHEREAS, on June 22, 2012, City and TCM entered into the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminals 1, 3 and 6, LAA-8640 (“Agreement”); and
WHEREAS, TCM currently occupies space in Terminals 1, 3 and 6 pursuant to the Agreement; and
WHEREAS, Section I of the Agreement requires TCM to make certain improvements in Terminals 1, 3 and 6, as well as the Theme Building; and
WHEREAS, TCM requested that the Theme Building be removed from the Agreement and the City has agreed; and
WHEREAS, subsequent to the approval of the Agreement, Southwest Airlines began the process of phased construction pursuant to a lease between the City and Southwest Airlines, which process resulted in the unforeseen delay of delivering of concession space in Terminal 1 to TCM, through no fault of City; and
WHEREAS, due to unforeseen delays in obtaining plan approval and the issuance of required building permits from the Los Angeles Building and Safety after the initial plan submission, through no fault of City, the construction commencement date for TCM’s planned improvements in Terminal 6 was delayed.
1
WHEREAS, the City was notified by letter that Westfield Concession Management, LLC, a Delaware limited liability company, changed its corporate name to Westfield Airports, LLC, a Delaware limited liability company, and the City consented to such name change; and
WHEREAS, the parties hereto desire to amend said Agreement,
NOW, THEREFORE, the parties hereto, for and in consideration of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties hereto, do mutually agree that the Agreement, BE AMENDED AS FOLLOWS:
Amendment Section 1. Effective December 1, 2013, any and all references to the Theme Building, including all exhibits referencing the Theme Building (such as Area 17) in the Agreement are hereby deleted. Accordingly, TCM has voluntarily relinquished any and all of its interests, rights, claims and privileges relating to the Theme Building and releases the City of any and all of its obligations under this Agreement related to the Theme Building. City releases TCM of any and all of its obligations under this Agreement relating to the Theme Building.
Amendment Section 2. All references in the Agreement to “Westfield Concession Management, LLC” are hereby amended to state “Westfield Airports, LLC” (hereinafter referred to as “TCM”).
Amendment Section 3. All addresses in the Agreement referring to 11601 Wilshire Blvd., 11th Floor, Los Angeles, California 90025 for TCM, are hereby deleted and amended as follows: 2049 Century Park East 41st Floor, Los Angeles, CA 90067.
Amendment Section 4. Section 1.1 of the Agreement is hereby amended and restated to read in its entirety as follows:
1.1TCM’s Obligations During Pre-Term Development Phase. Commencing on June 22, 2012 (the “Effective Date”) in the written notification from the Executive Director of the Department of Airports of the City of Los Angeles (or the person or persons designated by the Executive Director to. take a specified action on behalf of the Executive Director) (collectively herein, the “Executive Director”), TCM shall, at TCM’s sole cost and expense and to the full satisfaction of the Executive Director, be responsible for the planning, design and development of the food & beverage, retail, and certain other concession spaces in specified locations in Terminal 1, Terminal 3, Terminal 6, at the Airport, all as more particularly identified in this Agreement and as more particularly set forth below. Terminal 1, Terminal 3 and Terminal 6, are sometimes individually referred to herein as a “Facility” and are sometimes collectively referred to herein as the “Facilities.”
Amendment Section 5.Section 1.13.5 (“Acquisition of Initial Non-Premises Improvements”) of the Agreement is hereby amended and restated to read in its entirety as follows:
1.13.5 Extended Cost for Terminal 1.[**]
1
[**]
Amendment Section 6.Section 2.1.2 is hereby added to the Agreement to read as follows:
2.1.2Revision to Description of Premises Re: Units and Storage Space Addenda.
2.1.2.1Units Within Areas in Terminal 3. Effective July 1, 2029, the Units defined by the Premises within Areas 13 and 14 (collectively “Areas 13 and 14”) in Terminal 3 will be deleted from the Agreement and will no longer be applicable as a result of the Terminal 3 Expiration Date, as defined under Section 2.2.1 (see Amendment Section 8 below), unless earlier terminated under the provisions of the Agreement.
2.1.2.2Units Within Areas in Terminal 6. Effective October 1, 2030, the Units defined by the Premises within Areas 15 and 16 (collectively “Areas 15 and 16”) in Terminal 6 will be deleted from the Agreement and will no longer be applicable as a result of the Terminal 6 Expiration Date, as defined under Section 2.2.1 (see Amendment Section 8 below), unless earlier terminated under the provisions of the Agreement.
2.1.2.3Storage Space Addendum in Terminal 3. Effective July 1, 2029, any and all Storage Space Addendum entered into between the parties for storage space in Terminal 3 shall automatically terminate and any and all such storage space shall be surrendered to LAWA.
2.1.2.4Storage Space Addendum in Terminal 6. Effective October 1, 2030, any and all Storage Space Addendum entered into between the parties for storage space in Terminal 6 shall automatically terminate and any and all such storage space shall be surrendered to LAWA.
Amendment Section 7.Section 2.2 (“Primary Term”) of the Agreement is hereby amended and restated to read in its entirety as follows:
2
2.2Primary Term. For purposes of this Agreement, the term “Primary Term” shall mean the period of time that TCM shall operate the Premises as the terminal commercial manager hereunder, which period shall commence for any given portion of the Premises on the Delivery Date for such portion of the Premises and shall end as to all portions of the Premises on the Expiration Date (unless the term of this Agreement is sooner terminated in accordance with the provisions of this Agreement). No delay in the processing of any Definitive Improvement Plan or delay in the Delivery Date of any portion of the Premises shall extend the Expiration Date. TCM acknowledges and agrees that TCM has absolutely no rights under this Agreement to extend the Primary Term.
Amendment Section 8.Section 2.2.1 is hereby added to the Agreement to read as follows:
2.2.1Definition of Expiration Date. For purposes of this Agreement, the term “Expiration Date” shall mean the following:
| ● | For Terminal 1 – June 30, 2032 regarding Areas 11 and 12 (“Terminal 1 Expiration Date”), subject to extension by written agreement as provided in the Agreement. If at least 18,670 square feet of Premises are not delivered to TCM in Terminal 1 by January 1, 2019, the Terminal 1 Expiration Date will be subject to a day-for-day extension until at least such square footage has been delivered to TCM. Any such day-for-day extension must be confirmed by written notice from the Executive Director. |
| ● | For Terminal 3 – June 30, 2029 regarding Areas 13 and 14 (“Terminal 3 Expiration Date”). |
| ● | For Terminal 6 – September 30, 2030 regarding Areas 15 and 16 (“Terminal 6 Expiration Date”). |
The term “Expiration Date” shall mean the applicable of the Terminal 1 Expiration Date, Terminal 3 Expiration Date or Terminal 6 Expiration Date, as the context so requires with reference to the Premises contained within Terminal 1, Terminal 3 and Terminal 6, respectively. Effective at 11:59 p.m. on the Terminal 3 Expiration Date and the Terminal 6 Expiration Date, as applicable, TCM shall relinquish any and all of its interests, rights, claims and privileges relating to all portions of the Premises within the respective terminal (including, without limitation, all Areas and Units) and the parties shall each release the other of any and all of their respective obligations under this Agreement related to such Premises and terminal occurring thereafter, except with respect to those obligations that accrued prior to the respective Terminal 3 Expiration Date or Terminal 6 Expiration Date and/or expressly surviving the expiration or earlier termination of the Agreement.
Amendment Section 9.Section 2.3 (“Early Termination for Failure to Meet Performance Metrics”) of the Agreement is hereby amended and restated to read in its entirety as follows:
3
2.3Early Termination for Failure to Meet Performance Metrics. In addition to any other termination right of City granted under this Agreement, City shall have the right, exercisable by the Executive Director upon written notice to TCM (the “Early Termination Notice”), to terminate this Agreement (the “Early Termination”) effective on the Early Termination Expiration Date in the event that the Executive Director determines that TCM has failed to achieve any of the Performance Metrics (as defined in Section 2.3.2 below) for any two (2) consecutive Years (as defined in Section 4.1.1 below) during the Performance Metrics Measurement Period (as defined in Section 2.3.3 below); provided that the Executive Director shall deliver the Early Termination Notice to TCM as follows: (a) for Terminal 1 – on or before June 30, 2025, (b) for Terminal 3 – on or before June 30, 2022; and (c) for Terminal 6 – on or before September 30, 2023. In the event that City exercises its Early Termination right, City shall pay to TCM an amount equal to the Early Termination Payment (as defined in Section 9.2.3 below) within thirty (30) days following the Early Termination Compliance Date (as defined in Section 9.2.4 below). All Unit Concession Agreements shall provide that they are subject to either termination or assignment, at the sole option of City as exercised by the Executive Director, upon the Early Termination of this Agreement. City agrees that City will either exercise such right to terminate Unit Concession Agreements as to all of the Units located within the Premises or will elect to take an assignment of all of the Units located within the Premises. In the event that City elects to take an assignment of the Unit Concession Agreements upon the Early Termination of this Agreement, City and TCM will enter into an assignment and assumption agreement, in form and content reasonably satisfactory to the Executive Director, reflecting that TCM shall indemnify and hold harmless the City for any obligations of the TCM accruing prior to the Early Termination Expiration Date and City shall assume responsibility for the obligations of TCM under the Unit Concession Agreements accruing from and after the Early Termination Expiration Date. Title to and ownership of all TCM Initial Premises Improvements and Concessionaire Initial Premises Improvements shall vest in City on the Early Termination Expiration Date, except for those Concessionaire Initial Premises Improvements, if any, that pertain to Unit Concession Agreements that City does not elect to terminate in connection with such Early Termination.
Amendment Section 10.Section 2.3.1 is deleted in its entirety and replaced with the following:
2.3.1Early Termination Expiration Date.For purposes of this Agreement, the “Early Termination Expiration Date” shall mean the applicable date for Terminal 1 or Terminal 3 or Terminal 6, as the context so requires with reference to the Premises contained within Terminal 1, Terminal 3 and Terminal 6, respectively, as follows:
| ● | For Terminal 1 – June 30, 2027 |
| ● | For Terminal 3 – June 30, 2024 |
| ● | For Terminal 6 – September 30, 2025 |
Amendment Section 11. Section 2.3.3 is deleted in its entirety and replaced with the following:
4
2.3.3Performance Metrics Measurement Period. For purposes of this Agreement, the “Performance Metrics Measurement Period” shall mean the applicable date for Terminal 1 or Terminal 3 or Terminal 6, as the context so requires with reference to the Premises contained within Terminal 1, Terminal 3 and Terminal 6, respectively, as follows:
| ● | For Terminal 1 – the period beginning on January 1, 2018 and ending on December 31, 2024. |
| ● | For Terminal 3 – the period beginning on January 1, 2015 and ending on December 31, 2021. |
| ● | For Terminal 6 – the period beginning on January 1, 2016 and ending on December 31, 2022. |
Amendment Section 12. The following is hereby added as Section 3.2.2 to the Agreement:
3.2.2Services of TCM. TCM is to include in the Business and Operations Plan for each Year, identification of any Custom Architectural Features (including but not limited to specialty lighting, furniture and fixtures) installed by TCM and acquired by City or installed by TCM pursuant to the Agreement, and that are in City’s Common Areas, as Initial Non-Premises Improvements (“Custom Architectural Features”), where City employees are not able to maintain or operate such Custom Architectural Features in the normal course of business, as itemized in writing by the Deputy Executive Director (or his/her designee) of the department responsible for such maintenance and operation, and if determined by the same to be an exception to the competitive bidding process under Charter Code Section 371(e)(10). Subject to and in accordance with the terms and conditions herein stated, and so long as City approves the appropriate budget to do, so, and subject at all times to such procedures and directions as are set forth in this Agreement, TCM shall do all of the following:
(a)Budgets. Budgets for the maintenance and operation of the Custom Architectural Features shall be implemented, as follows:
(i)TCM acknowledges that City will have a fiscal year beginning on July 1 and ending the following June 30 (each a “Fiscal Year”). Promptly following the execution of the First Amendment, TCM shall prepare and deliver to LAWA a proposed budget for the period commencing on the execution date of the First Amendment and ending on June 30, 2017. Such proposed budget shall be in a format to be designated by TCM (the “Approved Budget Format”), provided that the Approved Budget Format shall set forth in reasonable detail and on a monthly basis, (i) an itemized statement of the estimated disbursements for such period, including but not limited to all normal maintenance and operating costs and employee salaries and similar items if TCM employees are used for the maintenance and operation of the Custom Architectural Features, and (ii) the scope of TCM’s work with respect to the items to be maintained and the type and frequency of maintenance required. TCM shall cooperate with City to review and modify the proposed budget, as may reasonably be required by City, and the parties shall act diligently and in good faith to cause the proposed budget, as so modified, to be approved in a reasonable timeframe prior to the start of the next fiscal year. Upon City’s approval, the proposed budget shall become the Approved Budget.
5
Notwithstanding anything to the contrary contained herein, TCM shall not be required to perform any repairs or maintenance in accordance with this Section 3.2.2 until City has formally approved the proposed budget for the upcoming Fiscal Year.
(ii)As to all future Approved Budgets, at least sixty (60) days prior to the commencement of each Fiscal Year, so long as this Agreement is in effect, TCM shall prepare and deliver to City a proposed budget which, after approval by City, shall be deemed the Approved Budget for such Fiscal Year. Each proposed budget shall be in the Approved Budget Format.
(iii)TCM shall be entitled to deduct the amount of reimbursement for the verified actual costs of the aforementioned maintenance and repair work against Base Rent, in an amount up to, but not to exceed the Approved Budget. TCM shall not have any responsibility for any additional expenditures over and above the Approved Budget.
(iv)LAWA shall have sole discretion to decide whether or not to approve a budget and shall not be under any obligation to approve a proposed budget for the Custom Architectural Features. If City has not approved a proposed budget for the Custom Architectural Features in accordance with the terms hereof prior to the first day of the Fiscal Year to which such proposed annual budget is to apply, TCM shall not repair and maintain the Custom Architectural Features until such date the proposed annual budget for the Custom Architectural Features is approved by City.
(b)Maintenance. TCM shall maintain or cause to be maintained the Custom Architectural Features at City’s expense, provided that no maintenance expense, repairs or alterations which are not provided for within the Approved Budget or otherwise specifically permitted pursuant to the terms and conditions of this Agreement shall be undertaken without the prior written consent of City. TCM shall repair and maintain the Custom Architectural Features in the best interests of City.
(c)Warranty. TCM. warrants that the work hereunder shall be performed and completed diligently, in good faith and in an efficient manner consistent with professional standards practiced among those in the industry doing the same or similar work under the same or similar circumstances. TCM further warrants that all goods and materials furnished in connection with Custom Architectural Features will be new and of good quality and that all workmanship will be of good quality, free from faults and defects.
Amendment Section 13.The third sentence of Section 4.1.3 of the Agreement (which contains the definition of the term Contingent Percentage Rent) is hereby amended and restated to read in its entirety as follows:
The term “Contingent Percentage Rent” shall mean an annual amount equal to the sum of the following two amounts: [**]
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Amendment Section 14.Sections 4.1.2.4 and 4.1.2.5 of the Agreement are hereby added to the Agreement to read as follows:
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Amendment Section 15.Section 4.1.3.2 is hereby added to the Agreement to read as follows:
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Amendment Section 16.Sections 4.1.3.3 and 4.1.3.4 are hereby added to the Agreement to read as follows:
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Amendment Section 17.Sections 4.1.3.5 and 4.1.3.6 are hereby added to the Agreement to read as follows:
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Amendment Section 18.The second to the last sentence in Section 4.8 (“Books and Records”) of the Agreement is hereby deleted in its entirety and replaced with the following:
The parties acknowledge that, as a result of the surrender of Areas 13 and 14 in Terminal 3 on the Terminal 3 Expiration Date, City’s right to access TCM’s records relating to Terminal 3 under Section 4.8 of the Agreement will expire on July 1, 2032. The parties further acknowledge that, as a result of the surrender of Areas 15 and 16 in Terminal 6 on the Terminal 6 Expiration Date, City’s right to access TCM’s records relating to Terminal 6 under Section 4.8 of the Agreement will expire on October 1, 2033.
Amendment Section 19.Sections 4.10.5 and 4.10.6 (under “Faithful Performance Guarantee”) are hereby added to the Agreement to read as follows:
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Amendment Section 20.Sections 4.11.4 and 4.11.5 are hereby added to the Agreement to read as follows:
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Amendment Section 21.Section 7.6 (“Mid-Term Refurbishment”) of the Agreement is deleted in its entirety and replaced with the following:
7.6Mid-Term Refurbishment. TCM shall plan for and cause the completion of the refurbishment of the Premises in the manner set forth in this Section 7.6 (the “Mid-Term Refurbishment”) as follows: (a) Premises in Terminal 1 – no later than January 1, 2027, (b) Premises in Terminal 3 – no later than January 1, 2024, and (c) Premises in Terminal 6 – no later than April 1, 2025 (collectively and respectively, the “Mid-Term Refurbishment Completion Date”). The Executive Director shall have the discretion to defer the timing of the Mid-Term Refurbishment. The term “Mid-Term Refurbishment Completion Date” shall mean the applicable date for Terminal 1 or Terminal 3 or Terminal 6, as the context so requires with reference to the Premises contained within Terminal 1, Terminal 3 and Terminal 6, respectively.
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Amendment Section 22.Sections 7.6.1 and 7.6.2 of the Agreement are hereby amended and restated to read in its entirety as follows:
7.6.1Mid-Term Refurbishment Plan. TCM shall prepare and deliver to City for Executive Director’s review and approval a Mid-Term Refurbishment plan (collectively and respectively, the “Mid-Term Refurbishment Plan”), as follows: (a) for Terminal 1 – no later than January 1, 2026, (b) for Terminal 3 – no later than January 1, 2023, and (c) for Terminal 6 – no later than April 1, 2024. The Mid-Term Refurbishment Plan shall meet the then-current requirements imposed by City as part of the Construction Approval Process, and shall otherwise include information similar to that contained in the Definitive Improvement Plan for the TCM Initial Premises Improvements and Concessionaire Initial Premises Improvements. Upon receipt and review of such Mid- Term Refurbishment Plan by Executive Director and as a part of the Construction Approval Process, TCM shall incorporate any comments from Executive Director and shall re-submit such Mid-Term Refurbishment Plan until it has been approved by Executive Director. The Mid-Term Refurbishment Plan shall include not-to-exceed dollar amounts for purposes of the costs that are allowed as Qualified Investment under Section 9.3 below. The term “Mid-Term Refurbishment Plan” shall mean the applicable plan for Terminal 1 or Terminal 3 or Terminal 6, as the context so requires with reference to the Premises contained within Terminal 1, Terminal 3 and Terminal 6, respectively.
7.6.2Construction and Completion of Mid-Term Refurbishment. TCM shall construct and complete the Mid-Term Refurbishment in accordance with the Mid-Term Refurbishment Plan as to each Terminal, as approved by Executive Director and the other requirements contained in this Agreement. TCM and its Concessionaires shall expend for the design and construction of the Mid-Term Refurbishment, as a minimum, a dollar amount equal to [**] of the dollar amount expended by TCM and its Concessionaires in connection with the Initial Premises Improvements (the “Minimum Mid-Term Refurbishment Amount”). Amounts expended for deferred maintenance, repairs and replacements that should previously have been performed pursuant to Section 8 below shall not be credited toward the Minimum Mid-Term Replacement Amount, unless otherwise approved by the Executive Director. Within ninety (90) days after the Mid-Term Refurbishment Completion Date, as defined in Section 7.6, TCM shall pay to City an amount equal to the positive shortfall, if any, between the Minimum Mid-Term Refurbishment Amount and the actual amount expended by TCM and its Concessionaires in connection with the design and construction of the Mid-Term Refurbishment.
Amendment Section 23. The Basic Information of the Agreement is hereby amended and restated to conform with the provisions of this First Amendment, to the extent that the provisions in the Basic Information have been modified by the provisions of this First Amendment.
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Amendment Section 24. Section 16.45 (“City Approval”) of the Agreement is hereby amended and restated to read in its entirety as follows:
Section 16.45 City Approval. Following the execution and delivery of this Agreement, whenever this Agreement calls for a matter to be approved or disapproved by or on behalf of City, then the written approval, disapproval, or consent of the Executive Director within the legal authority of the Executive Director, subject to the approval of the Office of the City Attorney as to form, if required, shall constitute the approval, disapproval, or consent of City; provided, however, if the approval or consent by City is in excess of the Executive Director’s legal authority, then such matter shall be approved by the Board. Except as otherwise expressly set forth in this Agreement, with respect to any matter that is subject to the approval or consent of the Executive Director or the Board, such approval or consent may be given or withheld in the Executive Director’s or the Board’s sole and absolute discretion. Any approvals or consents required from or given by City under this Agreement shall be approvals of the City of Los Angeles Department of Airports acting as the owner and operator of the Airport, and shall not relate to, constitute a waiver of, supersede or otherwise limit or affect the rights or prerogatives of the City of Los Angeles as a government, including the right to grant or deny any permits required for construction or maintenance of the Premises and the right to enact, amend or repeal laws and ordinances, including, without limitation, those relating to zoning, land use, and building and safety. No approval or consent on behalf of City will be deemed binding upon City unless approved in writing as to form by the City Attorney when such approval is required.
Amendment Section 25.Section 6.1.1 is hereby added to the Agreement to read as follows:
6.1.1Subsequent Concession Agreement or Contract Covered by 49 CFR Part 23. TCM agrees to include the following statement in any subsequent concession agreement or contract covered by 49 CFR part 23, that it enters and cause those businesses to similarly include the statement in further agreements: “This Agreement is subject to the requirements of the U.S. Department of Transportation’s regulations, 49 CFR part 23. TCM agrees that it will not discriminate against any business owner because of the owner’s race, color, national origin, or sex in connection with the award or performance of any concession agreement, management contract, or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR part 23.”
Amendment Section 26.For clarification, the exhibit for the Storage Space Addendum (Exhibit E) of the Agreement is hereby replaced with the attached document.
Amendment Section 27.As a material inducement to City’s entering into this First Amendment, TCM hereby represents and covenants to City, to the best of TCM’s knowledge, without independent inquiry, as follows: (1) City is not in default in the performance of any of the terms or provisions of the Agreement; and (2) City shall be entitled to rely on the accuracy of the foregoing representation and covenants, and TCM hereby releases City from any claims relating to the foregoing matters.
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Amendment Section 28. Except as specifically provided herein, this First Amendment shall not in any manner alter, change, modify, or affect any of the rights, privileges, duties, or obligations of either of the parties hereto, under, or by reason of said Agreement, as amended.
IN WITNESS WHEREOF, City has caused this First Amendment to be executed on its behalf by the Executive Director, or his or her authorized signatory, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
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APPROVED AS TO FORM: |
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CITY OF LOS ANGELES |
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Michael N. Feuer, City Attorney |
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Deputy/Assistant City Attorney |
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Executive Director |
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5/3/2016 |
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6/9/16 |
ATTEST: |
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WESTFIELD AIRPORTS, LLC |
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/s/ Aline Taireh |
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/s/ Peter Schwartz |
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Aline Taireh |
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Peter Schwartz |
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Senior Vice President |
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SR EX VP |
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Storage Space Addendum Exhibit
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STORAGE SPACE ADDENDUM
THIS STORAGE SPACE ADDENDUM (this “Addendum”) is made as of _______________, 2016, by and between the CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (“City”), acting by order of and through its Board of Airport Commissioners (“Board”), and WESTFIELD AIRPORTS, LLC, a Delaware limited liability company, f/k/a Westfield Concession Management, LLC (“TCM”), and upon execution and delivery of this Addendum by Executive Director shall become a part of that certain Los Angeles International Airport Terminal Commercial Management Concession Agreement (Terminals 1, 3 and 6), LAA-8640 dated as of June 22, 2012, by and between City and TCM with respect to the Premises (as defined therein) (the “Concession Agreement”).
1.Defined Terms. All initially capitalized terms not otherwise defined in this Addendum shall have the meanings set forth in the Concession Agreement, unless the context clearly indicates otherwise.
2.Lease of Storage Space. In consideration of the payment of Storage Rent (hereinafter defined) and keeping and performance of the covenants and agreements by TCM as set forth in this Addendum and in the Concession Agreement, City leases to TCM a total of approximately _________ square feet of storage space (the “Storage Space”), as shown on the chart and drawing, both of which are attached to this Addendum as Exhibit A.
3.Term of Storage Space Addendum. TCM’s right to use the Storage Space will commence on ________________, 2016 and terminate the earlier of (a) upon thirty (30) days’ prior written notice from either City or TCM to the other, or (b) the concurrent expiration or earlier termination of the Concession Agreement. City may, in the sole and reasonable discretion of the Executive Director, consider taking back portions of the Storage Space, provided however, such portions are in leasable, useable condition as determined in the sole discretion of the Executive Director. TCM shall use its best efforts to lease the Storage Space prior to requesting City to consider taking back of said space. In the event of such take back, TCM must provide City sixty (60) days’ prior written notice of its request. Notwithstanding anything provided in the Concession Agreement or otherwise, TCM shall not be entitled to any compensation or reimbursement in connection with such relocation or take back (including without limitation, any compensation or reimbursements for moving expenses, or for alterations or improvements made to the Storage Space). In connection with the expiration or earlier termination of this Addendum, TCM shall remove any and all goods, furniture, equipment, files, supplies and other personal property from the Storage Space, whether or not belonging to TCM, and shall surrender the Storage Space in substantially the same condition as received by TCM.
4.Storage Rent. TCM shall pay, as a monthly base rent for the Storage Space, the Terminal Buildings Charge under the Los Angeles International Airport Passenger Terminal Tariff, as Amended (“Base Storage Rent”). The Base Storage Rent described in this Section 4 is subject to annual adjustment by the Board, and TCM shall pay the Base Storage Rent based on the then Board-approved rates.
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4.1.Terminal Buildings Charge. The Base Storage Rent shall be calculated for each calendar month in an amount equal to the Terminal Buildings Rate in effect for the month multiplied by the square footage of the Storage Space. If adjustments to the Terminal Buildings Rate are adopted by the Board retroactive to an effective date established by the Board, the adjustments shall be applied retroactively to said effective date and TCM shall be responsible for retroactive payment of any increased amounts due.
4.2.The Storage Rent is all inclusive and includes utilities, taxes, maintenance, and repair. For purposes of this Addendum, “Storage Rent” shall mean Base Storage Rent and all additional charges (if any) payable to City hereunder. All Storage Rent will be payable in advance, without notice, on or before the first day of each month during the term of this Addendum, at the place designated in the Basic Information of the Concession Agreement for the payment of Rent, or at such place as City may from time to time designate in writing. TCM acknowledges that the Storage Rent does not include TCM’s payment of City’s Occupancy Tax, which may be adjusted from time to time by the City Council.
5.Use of Storage Space. TCM will require its concessionaires to use the Storage Space in a careful, safe and proper manner, in accordance with all applicable Laws and any Rules and Regulations. TCM agrees to be fully liable for any damages or losses sustained by City as a result of any overloading by TCM. TCM will pay City as Additional Storage Rent on demand for any damage to the Storage Space caused by misuse or abuse by TCM, its agent or employees, or any other person entering the Storage Space. TCM will not commit waste nor permit waste to be committed nor permit any nuisance in the Storage Space.
6.Lighting: Electricity. City agrees, during the term of this Addendum, to furnish and provide such electric lighting service to and such ingress and egress from the Storage Space during ordinary business hours as may, at the judgment of the City, be reasonably required for the use and occupancy of the Storage Space pursuant to the terms of this Addendum. TCM agrees that City will not be liable for failure to provide such lighting service or ingress and egress during any period when City uses reasonable diligence to supply them. City reserves the right temporarily to discontinue electric service, or ingress or egress, at such times as may be necessary when City is unable to provide them by reason of accident, unavailability of employees, repairs, alterations or improvements, or whenever by reason of strikes, walkouts, riots, acts of God, or any other happening beyond the control of City. City will be under no obligation to furnish heating or air conditioning service to the Storage Space. City will have the right to enter the Storage Space to examine and inspect it as provided in the Concession Agreement and to require the removal of any object or material City deems hazardous to the safety or operation of the Terminal or building in which the Storage Space is located.
7.TCM Contacts. TCM will provide City a list of TCM’s appointed representatives and their telephone numbers for the Storage Space. TCM may, from time to time, change the individuals who are designated as TCM’s representatives by written notice to City of any such change. City will contact TCM’s representative only to obtain access to the Storage Space. TCM will place signs identifying the location and telephone number for TCM representative on each Storage Space.
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8.Storage at TCM’s Risk: Condition of Storage Space.TCM agrees that any and all property, whether or not belonging to TCM, kept or stored in the Storage Space will be at the sole risk of TCM and that City will not be liable for any injury or damage to such property, except to the extent caused by the sole negligence or intentional misconduct of City or City Agents in accordance with the applicable terms and provisions of the Concession Agreement. TCM will carry and maintain, at TCM’s expense, or cause its concessionaires to carry and maintain, at the respective concessionaire’s expense, insurance covering all property stored in the Storage Space. Taking possession of the Storage Space by TCM for itself or its concessionaires will be conclusive evidence that the Storage Space was in the condition agreed upon between City and TCM and acknowledgment by TCM that it accepts the Storage Space in its then “as-is, where is” condition, “with all faults,” and without any further improvement by City.
9.Applicability of the Concession Agreement. Except to the extent specifically provided otherwise in this Addendum, the provisions of the Concession Agreement shall be applicable to the Storage Space and this Addendum, including but not limited to the “City Held Harmless” provision in Section 13.2, as if they were specifically set forth in this Addendum. During the term of this Addendum, references in the Concession Agreement to the “Premises” will be deemed to refer to the “Storage Space,” unless the context clearly indicates otherwise. In the event of any express conflict between the provisions of the Concession Agreement and the provisions of this Addendum, the provisions of this Addendum shall control.
10.Cross-Default. Any default by TCM in the performance of TCM’s obligations under this Addendum will also be a default under the Concession Agreement.
11.Improvements to Storage Space: Relocation and Partial Termination. TCM shall not make, or allow or permit, any alterations or improvements to the Storage Space without the prior written consent of City and compliance with the applicable provisions of the Concession Agreement. City expressly reserves the rights (a) to relocate the Storage Space to such other storage area as may be designated by City, or (b) to partially terminate this Addendum with respect to any portion of the Storage Space upon not less than thirty (30) days prior written notice to TCM. Notwithstanding anything to the contrary provided in the Concession Agreement or otherwise, TCM shall not be entitled to any compensation or reimbursement in connection with such relocation or partial termination (including, without limitation, any compensation or reimbursements for moving expenses, or for alterations or improvements made to the Storage Space); provided, however, the Storage Rent shall be equitably adjusted in connection with any reduction in the Storage Space.
12.Counterparts. This Addendum may be executed in counterparts, but shall become effective only after each party has executed a counterpart hereof; all said counterparts when taken together, shall constitute the entire single agreement between the parties.
[Signatures on next page]
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IN WITNESS WHEREOF, City has caused this Addendum to be executed on its behalf by Executive Director and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
Approved as to form: |
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CITY OF LOS ANGELES |
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MICHAEL N. FEUER, |
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Deputy/Assistant City Attorney |
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WESTFIELD AIRPORTS, LLC |
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4
EXHIBIT A
STORAGE SPACE CHART & DRAWING
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ACKNOWLEDGEMENT OF GUARANTOR
The undersigned, Westfield America, Inc., a Missouri corporation (herein, “Guarantor”), hereby represents, acknowledges, and agrees as follows: (1) Guarantor has reviewed the foregoing First Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminals 1, 3 and 6, between the City of Los Angeles and Westfield Airports, LLC, formerly known as Westfield Concession Management, LLC (“TCM”) (the “First Amendment”), concerning the amendment of the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminals 1, 3 and 6, LAA-8640, dated June 22, 2012, between the City of Los Angeles and TCM (hereinafter “Agreement”); (2) Guarantor is the guarantor of TCM’s obligations under the Agreement pursuant to that certain Guaranty Agreement executed concurrently with the execution of the Agreement (the “Guaranty”); (3) Guarantor approves of TCM’s execution of the First Amendment and agrees with its terms; and (4) the Guaranty is hereby reaffirmed, and the Guaranty is and remains in full force and effect and continues to guarantee the prompt payment and performance by TCM of all of the terms of the Agreement as amended and modified by the First Amendment. This Acknowledgement of Guarantor has been executed as of the date of execution of the First Amendment by TCM.
“GUARANTOR” |
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WESTFIELD AMERICA, INC. |
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a Missouri corporation |
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/s/ Aline Taireh |
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/s/ Peter Schwartz |
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Aline Taireh |
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Peter Schwartz |
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Senior Vice President |
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SR EX VP |
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.20.2
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Los Angeles |
CONFORMED COPY |
BOARD FILE |
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LAX Van Nuys City of Los Angeles Eric Garcetti Mayor Board of Airport Commissioners Sean O. Burton President Valeria C. Velasco Vice President Gabriel L. Eshaghian Beatrice C. Hsu Nicholas P. Roxborough Dr. Cynthia A. Telles Karim Webb Justin Erbacci Interim Chief Executive Officer |
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RESOLUTION NO. 27003 BE IT RESOLVED that, on recommendation of Management, the Board of Airport Commissioners approved revision of the payment terms of all Concession Agreements listed in Attachments 1, 2, and 3 of the Board-adopted staff report, attached hereto and made part hereof, to only require payment of percentage rent as defined in their respective Concession Agreement instead of Minimum Annual Guarantee for the period starting April 1, 2020 through June 30, 2020; and BE IT FURTHER RESOLVED that Board further approved revision of the payment terms for all Concession Agreements listed on Attachment 1 of the Board-adopted staff report, attached hereto and made part hereof, to allow deferral of payment of percentage rent until July 1, 2020 through December 31, 2020 in equal monthly installments; and BE IT FURTHER RESOLVED that the Board established a temporary Overflow Rental Car Parking Rate of $3.61 per square foot per year; and BE IT FURTHER RESOLVED that the Board authorized the Interim Chief Executive Officer to implement a Program to revise Concession Agreements and implement a temporary policy to forbear on implementing default provisions related to payment of Minimum Annual Guarantees for the affected Concessionaires as set forth in the Board-adopted staff report, attached hereto and made part hereof; and BE IT FURTHER RESOLVED that the Board further authorized the Interim Chief Executive Officer or designee to execute Letter Agreements with the terms and conditions in the Program, subject to City Attorney approval as to form and Los Angeles City Council approval; and BE IT FURTHER RESOLVED that this item, as a continuing administrative, maintenance and personnel-related activity, is administratively exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article II, Section 2.f of the Los Angeles City CEQA Guidelines; and BE IT FURTHER RESOLVED that this action is subject to the provisions of Los Angeles City Charter Sections 606. o0o |
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I hereby certify that this Resolution No. 27003 |
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/s/ Grace Miguel |
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Grace Miguel Secretary BOARD OF AIRPORT COMMISSIONERS Approved by City Council on April 22, 2020 |
1 World Way Los Angeles California 90045-5803 Mail P.O Box 92216 Los Angeles California 90009-2216 Telephone 855 463 5252 Internet www.lawa.org
SUBJECT: Approval of Revisions of the Terms of all Concessions Agreements based on Minimum Annual Guarantees for the Concessions at Los Angeles International Airport affected by the decline in passengers resulting from Travel Restrictions due to COVID-19.
Approve revision of the payment terms of all Concessions Agreements based on Minimum Annual Guarantee so that all concessionaires impacted by the decline in passengers resulting from COVID-19 travel restrictions will only be required to pay percentage rent as defined in their Concession Agreement instead of Minimum Annual Guarantee from April 1, 2020 through June 30, 2020.
RECOMMENDATIONS:
Management RECOMMENDS that the Board of Airport Commissioners:
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ADOPT the Staff Report. |
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DETERMINE that this action is administratively exempt from the California Environmental Quality Act (CEQA) pursuant to Article II, Section 2.f of the Los Angeles City CEQA Guidelines. |
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APPROVE a revision of the payment terms of all Concession Agreements listed in Attachments 1, 2, and 3 to only require payment of percentage rent as defined in their respective Concession Agreement instead of Minimum Annual Guarantee for the period starting April 1, 2020 through June 30, 2020; |
Page 1
COVID-19 Rent Relief
Concession Agreements
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APPROVE a revision of the payment terms for all Concession Agreements listed on Attachment 1 to allow deferral of payment of percentage rent until July 1, 2020 through December 31, 2020 in equal monthly installments; |
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ESTABLISH a temporary “Overflow Rental Car Parking Rate of PSFPY; and, |
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AUTHORIZE the Interim Chief Executive Officer to implement a Program to revise Concession Agreements and implement a temporary policy to forbear on implementing default provisions related to payment of Minimum Annual Guarantees for the affected Concessionaires as set forth in this report. |
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AUTHORIZE the Interim Chief Executive Officer or his designee to execute Letter Agreements with the terms and conditions in the Program, subject to City Attorney approval as to form and Los Angeles City Council approval. |
DISCUSSION:
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Purpose |
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Prior Related Actions |
None
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Current Action |
Los Angeles World Airports (LAWA) operates a comprehensive concessions program at Los Angeles International Airport (LAX) that includes Advertising and Sponsorship, Duty Free Merchandise, Food and Beverage, Retail, and Services operators in the terminal facilities and on-airport and off-airport Rental Car operations outside the terminals. A complete list of concession operators at LAX is shown in Attachment 1.
These concessionaires provide LAX guests a complete line of food, beverage, retail, service and rental car options. The concessions program at LAX has received multiple awards for excellence in overall program and design. Concession sales correlate directly to passenger traffic.
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Page 2
COVID-19 Rent Relief
Concession Agreements
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Impacts of COVID-19
The passenger declines due to the COVID-19 impact on travel have resulted in sales declines in direct relation to the approximately decline in passenger traffic year over year, based on Transportation Security Administration (TSA) screenings reported for the last week of March 2020. This decline in sales has forced all concessions at LAX to revisit their operating hours and take other cost cutting measures, including closing some locations and laying off staff. As of March 26, 2020, concessionaires have laid off or furloughed 1,390 staff out of the approximately 4,000 employed prior to the downturn in passenger traffic.
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LAWA has conducted multiple meetings and outreach sessions with the concessionaires to facilitate information sharing as COVID-19 impacted passenger traffic and operating procedures developed. At these meetings, the concessionaires shared revised operating plans that focus on the safety of their employees and LAX guests in accordance with health department directives, and the emergency measures to alter operating hours they have been enacted in reaction to the passenger traffic declines from restrictions on travel to the U.S. from many international destinations. As noted above, sales income has fallen to the point where the concessionaires have said that monthly rent obligations exceed monthly income. LAWA also has conducted outreach sessions with labor organizations representing the workers for these businesses.
The recently-enacted federal relief law allocates funds to certain airports and airport stakeholders, provided they take particular steps, including keeping their workforces intact. Although the legislation does not specifically provide relief to concessionaires, they and their employees will be important to the airport’s recovery. Consistent with that legislation, LAWA has developed the following program to provide assistance to our concession business partners.
Proposed In-Terminal Agreement Revisions
[**] This action is necessary to prevent the permanent shutdown of Food and Beverage, Retail, Rental Car and Service concessions, which are a vital part in the operations and financial sustainability of LAX. Based on differences with the concession operations, LAWA developed the following three temporary relief programs:
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COVID-19 Rent Relief
Concession Agreements
| I. | In-Terminal Food and Beverage, Retail, and Services Concessions |
For the in-terminal food and beverage, retail and services concession agreements listed on Attachment 1:
| ● | The Duration Period shall be the period from April 1, 2020 to June 30, 2020; |
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For In-Terminal Concessionaires to qualify for this temporary relief program each concessionaires will be required to:
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Comply with all applicable City Ordinances; |
b) |
Commit to re-employ laid off staff in direct proportion to increases in sales during the recovery period so that on a quarterly basis, employment numbers increase in proportion to sales increases, using December 2019 payroll levels and sales as the basis of full employment/sales; and to re-employ staff and management in the same proportion and ratio as was in place in December 2019; Additionally Concessionaires shall adhere to all federal requirements with respect to use of funds in the event they qualify and receive funding from the Coronavirus Aid, Relief, and Economic Security Act, widely known as the CARES Act or any future federal relief program; |
c) |
Maintain health insurance coverage for two months at the same rate and level as prior to the layoffs or reduction in hours for all employees who qualified for health insurance coverage during February 2020. This requirement applies to all employees who have been laid off, furloughed, or experienced reduced hours since March 1, 2020 or may be laid off or furloughed as a result of COVID 19; |
d) |
Pass along to all sub-concessionaires the same benefits received by the prime and/or Terminal Commercial Manager on a ratable basis; |
e) |
Have all accounts receivable status current; |
f) |
Have fully funded Faithful Performance Guarantees (FPG) and agree that LAWA can draw down on the FPG if concessionaire misses any payments; and, |
g) |
Demonstrate that the concessionaire is not entitled to any business interruption insurance benefits that are redundant to this program |
Page 4
COVID-19 Rent Relief
Concession Agreements
II. |
Advertising and Sponsorship Concession – Terminal Media Operator |
For the advertising/sponsorship concessionaire agreement listed on Attachment 2:
| ● | The Duration Period shall be the 90-day period from April 1, 2020 to June 30, 2020; and, |
| ● | [**] |
For the Terminal Media Operator to qualify for this temporary relief program they will be required to:
a) |
Comply with all applicable City Ordinances; |
b) |
Commit to re-employ laid off staff in direct proportion to increases in sales during the recovery period so that on a quarterly basis, employment numbers increase in proportion to sales increases, using December 2019 payroll levels and sales as the basis of full employment/sales; |
c) |
Have all accounts receivable status current; |
d) |
Have fully funded Faithful Performance Guarantees (FPG) and agree that LAWA can draw down on the FPG if concessionaire misses any payments; and, |
e) |
Demonstrate that the concessionaire is not entitled to any business interruption insurance benefits that are redundant to this program |
III. |
Rental Car Concessions |
For the On-Airport Rental Car concession agreements listed on Attachment 3:
| ● | The Duration Period shall be the 90-day period from April 1, 2020 to June 30, 2020; and, |
| ● | [**] |
For On-Airport and Off-Airport Rental Car Concessionaires to qualify for this temporary relief program each concessionaires will be required to:
a) |
Comply with all applicable City Ordinances |
b) |
Commit to re-employ laid off staff in direct proportion to increases in sales during the recovery period so that on a quarterly basis, employment numbers increase in proportion to sales increases, using December 2019 payroll levels and sales as the basis of full employment/sales; |
c) |
Pass along to all sub-concessionaires the same benefits received by the prime on a ratable basis; |
Page 5
COVID-19 Rent Relief
Concession Agreements
d) |
Have all accounts receivable status current; |
e) |
Have fully funded Faithful Performance Guarantees (FPG) and agree that LAWA can draw down on the FPG if concessionaire misses any payments; and, |
f) |
Demonstrate that the concessionaire is not entitled to any business interruption insurance benefits that are redundant to this program. |
Proposed Rental Car Temporary Overflow Parking Rate
Because of the dramatic decline in passenger traffic, the rental car companies are experiencing a large over supply of rental cars. The rental car concessionaires have requested that LAWA lease them currently vacant land temporarily to allow them to store this excess inventory. Staff have identified several vacant lots and plan to offer these spaces in proportion to the rental car current market share. The current approved rates for similar land is $5.91 PSFPY. Staff propose to establish a new temporary “Overflow Rental Car Parking Rate” of PSFPY for the rental car companies to store vehicles during this extraordinary time.
How this action advances a specific strategic plan goal and objective
This action advances this strategic goal and objective: Sustain a Strong Business: Diversify and grow revenue sources, and manage costs. Authorizing and approving Temporary Rent Relief and Forbearance Period Program for the concessionaires impacted by the decline in passenger traffic resulting from the impacts of COVID-19 will enable the concessionaires to substantially reduce operating expenses during the period that sales are impacted. Temporarily relieving the burden of the MAG rent component will allow concessionaires to pay rent based on percentage of sales and airport revenues will recover in parallel to passenger level increases, which are highly correlated with concession sales levels.
Action Requested
[**]
Fiscal Impact
[**]
Page 6
COVID-19 Rent Relief
Concession Agreements
4. |
Alternatives Considered |
| ● | Take No Action |
[**]
APPROPRIATIONS:
No appropriation of funds is required for this action.
STANDARD PROVISIONS:
1. |
This item, as a continuing administrative, maintenance and personnel-related activity, is administratively exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article II, Section 2.f of the Los Angeles City CEQA Guidelines. |
2. |
This proposed document(s) is/are subject to approval as to form by the City Attorney. |
3. |
Actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606. |
4. |
This action is not subject to the provisions of the Living Wage/Service Contractor Worker Retention Ordinances. |
5. |
This action is not subject to the provisions of the Business Enterprise (BE) Programs. |
6. |
This action is not subject to the provisions of the Affirmative Action Program. |
7. |
This action does not require a Business Tax Registration Certificate number. |
8. |
This action is not subject to the provisions of the Child Support Obligations Ordinance. |
9. |
This action is not subject to the insurance requirements of the Los Angeles World Airports. |
10. |
This action is not subject to the provisions of Charter Section 1022 (Use of Independent Contractors). |
11. |
This action is not subject to the provisions of the Contractor Responsibility Program. |
12. |
This action is not subject to the provisions of the Equal Benefits Ordinance. |
13. |
This action is not subject to the provisions of the First Source Hiring Program. |
14. |
This action is not subject to the provisions of Bidder Contributions CEC Form 55. |
Page 7
COVID-19 Rent Relief
Concession Agreements
LAWA Concession Operators/Agreements |
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Attachment 1 |
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Terminal Concessions |
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Terminal Commercial Management Concession Agreement |
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URW Airports, LLC |
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LAA-8640 |
Terminal Commercial Management Concession Agreement |
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URW Airports, LLC |
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LAA-8613 |
Airport Duty Free Merchandise Concession Agreement |
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DFS Group, L.P. |
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LAA-8647 |
Retail Concession Agreement (Hudson Group) |
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Hudson-Magic Johnson Enterprises-Concourse Ventures, LLC |
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LAA-8550 |
Retail Concession Agreement (Hudson Group) |
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LAX Retail Magic 2 JV |
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LAA-8551 |
Retail Concession Agreement (Hudson Group) |
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LAX Retail Magic 3-4 JV |
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LAA-8552 |
Retail Concession Agreement (Hudson Group) |
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LAX Retail Magic 3-4 JV |
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LAA-8542 |
Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
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LAA-8546 |
Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
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LAA-8547 |
Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
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LAA-8548 |
Branded Coffee and Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
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LAA-8843 |
Fast Casual Dining and Branded Coffee Food and Beverage Agreement |
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Areas USA LAX, LLC |
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LAA-8964 |
Food and Beverage Concession Agreement (Delaware North Companies Travel Hospitality Services) |
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DN/Dakota JME 8589 Farmers, LLC |
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LAA-8589 |
Food and Beverage Concession Agreement (Delaware North Companies Travel Hospitality Services) |
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DN/Dakota JME 8549 Pucks, LLC |
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LAA-8549 |
Food and Beverage Concession Agreement (HMS Host Corp) |
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Host International, Inc |
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LAA-8554 |
Food and Beverage Concession Agreement (HMS Host Corp) |
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Host International, Inc |
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LAA-8586 |
Food and Beverage Concession Agreement (HMS Host Corp) |
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Host International, Inc |
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LAA-8587 |
Automated Retail Concession Agreement |
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New Zoom, Inc. dba ZoomSystems |
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LAA-8852 |
Concession Agreement (For Vending Machine Services) |
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Bottling Group LLC |
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LAA-8882 |
Non-Exclusive Space Use License Agreement (For Expedited Traveler Services) |
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AlClear, LLC |
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LAA-8946 |
Concession Agreement |
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XpresSpa |
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LAA-8543 |
Currency Exchange and Business Services Concession Agreement |
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Lenlyn Ltd dba ICE Currency Services |
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LAA-8831 |
LAWA Concession Operators/Agreements |
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Attachment 2 |
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Terminal Concessions |
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Terminal Media Operator Concession Agreement |
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JCDecaux Airport, Inc. |
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LAA-8796 |
LAWA Concession Operators/Agreements |
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Attachment 3 |
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On Airport Rental Cars |
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Concession Agreement |
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On-Airport Rental Car |
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Alamo Rental (US) LLC |
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LAA-8139 |
Concession Agreement |
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On-Airport Rental Car |
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Avis Rent A Car System, LLC |
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LAA-8137 |
Concession Agreement |
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On-Airport Rental Car |
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Budget Rent A Car System, Inc. |
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LAA-8138 |
Concession Agreement |
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On-Airport Rental Car |
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DTG Operations, Inc. dba Dollar Rent A Car |
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LAA-8141 |
Concession Agreement |
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On-Airport Rental Car |
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DTG Operations, Inc. dba Thrifty Car Rental |
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LAA-8144 |
Concession Agreement |
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On-Airport Rental Car |
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Enterprise Rent-A-Car Company of Los Angeles, LLC |
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LAA-8142 |
Concession Agreement |
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On-Airport Rental Car |
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Fox Rent A Car, Inc. |
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LAA-8143 |
Concession Agreement |
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On-Airport Rental Car |
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The Hertz Corporation |
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LAA-8136 |
Concession Agreement |
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On-Airport Rental Car |
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National Rental (US) LLC |
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LAA-8140 |
Concession Agreement |
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On-Airport Rental Car |
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Sixt Rent A Car, LLC |
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LAA-8870 |
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Board File |
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LAX Van Nuys City of Los Angeles Eric Garcetti Mayor Board of Airport Commissioners Sean O. Burton President Valeria C. Velasco Vice President Gabriel L. Eshaghian Beatrice C. Hsu Nicholas P. Roxborough Dr. Cynthia A. Telles Karim Webb Justin Erbacci Interim Chief Executive Officer |
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April 22, 2020 Sent via email to mike.salzman@urw.com Mike Salzman Re: Terminal Commercial Management Concession Agreement LAA-8640 dated 3/1/2012 between CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS (the “City”), acting by and through its Board of Airport Commissioners (the “Board”), and URW Airports, LLC (“TCM”) (said agreement as may have been heretofore amended is referred to herein as the “Agreement”). Dear Mr. Salzman, In consideration of the recent decline in flight and passenger traffic at Los Angeles International Airport and the resulting temporary decline in airport revenue generating opportunities, the City hereby offers an amendment to the above-referenced Agreement in order to provide temporary rental relief on the terms and subject to the conditions set forth in this letter amendment. 1. [**] 2. [**] |
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3. Compliance With Agreement. TCM acknowledges and agrees that TCM’s right to receive the benefit of any abatement and/or deferral of rent or fees set forth herein is absolutely conditioned upon TCM’s full, faithful and punctual performance of its obligations under the Agreement. If TCM defaults in the performance of any of its obligations under the Agreement, such abated or deferred rent or fees shall immediately become due and payable in full upon demand by the City, and the City shall have the right to enforce the Agreement as if there were no such abatement or deferral. Without limiting the generality of the foregoing, TCM acknowledges and agrees that: (i) TCM shall comply with all applicable City of Los Angeles ordinances, (ii) TCM shall have fully funded its Faithful Performance Guarantee as specified in the Agreement (and without reduction with regard to the temporary MAG abatement contemplated herein) and acknowledges that the City may draw upon the Faithful Performance Guarantee immediately and without prior notice in the event of a default by TCM under the Agreement, (iii) in the event that the City draws upon the Faithful Performance Guarantee, TCM agrees to replenish the Faithful Performance Guarantee to its full amount immediately upon request by City, and (iv) TCM shall be current with respect to all payment obligations under the Agreement as of March 1, 2020. |
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4. TCM Covenants. In consideration for the benefits provided to TCM under this letter amendment (and as a condition to TCM’s right to receive such benefits), TCM hereby agrees as follows: |
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(a) TCM agrees to timely re-employ employees who were furloughed or laid off (due to the recent decline in flight and passenger traffic at Los Angeles International Airport (“LAX”) and the resulting temporary decline in airport revenue generating opportunities for TCM at LAX) in direct proportion to increases in TCM’s gross revenues as the decline in passenger traffic recovers, so that, on a quarterly basis, the number of employees on payroll shall increase in proportion to sales increases, using December 2019 payroll levels and sales as the basis of full employment/sales. This provision shall be superseded by a collective bargaining agreement that is in place at the time of the execution of this letter amendment if such collective bargaining agreement contains right to recall provisions. |
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(b) If not prohibited by the Employee Retirement Income Security Act (ERISA) or any other applicable law, and where it is not in conflict with any applicable collective bargaining agreement, TCM shall maintain health insurance coverage for all employees who were (i) employed by TCM during February 2020, (ii) had health insurance coverage during February 2020, and (iii) were laid off, furloughed or whose work hours were reduced by TCM since March 1 2020 (and, as a result of such reduction in hours, had health insurance coverage terminated), due to the recent decline in flight and passenger traffic at LAX and the resulting temporary decline in airport revenue generating opportunities for TCM at LAX. |
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1. Such health insurance coverage referenced above shall be in force for a minimum of two (2) months beginning on the date that the employee was laid off, furloughed or had work hours reduced by TCM. |
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2.The health insurance coverage referenced above shall be the same coverage as was in effect for the affected employee prior to such lay-off, furlough or separation. |
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3.To the extent such health insurance coverage was previously terminated, TCM shall promptly restore such coverage for the affected employees. |
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(c) TCM shall pass along to all of its sub-concessionaires (i.e., TCM’s “Concessionaires” as defined in the Agreement) the same abatement and deferral benefits received by TCM pursuant to this letter amendment on a ratable and nondiscriminatory basis, provided such sub-concessionaire agrees in writing to comply with the provisions of Sections 4(a) and 4(b) above with respect to such sub-concessionaire’s employees. TCM agrees to use good faith efforts to cause its sub-concessionaires to agree in writing to comply with the provisions of Sections 4(a) and 4(b) above with respect to such sub-concessionaire’s employees. If any such sub-concessionaire fails to so agree in writing, then neither TCM nor such sub-concessionaire shall be entitled to receive the ratable share of such abatement and deferral benefits allocable to such sub-concessionaire. |
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(d) TCM shall demonstrate to the City’s reasonable satisfaction that TCM is not entitled to any business interruption insurance proceeds or similar benefits that are redundant to the rental relief provided in this letter amendment, and in the event that the City determines that TCM is or becomes entitled to any such benefits, the City reserves the right to decrease or limit the rental relief provided herein accordingly. |
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(e) Additionally, TCM shall adhere to all federal requirements with respect to use of funds in the event they qualify for and receive Coronavirus Aid Relief and Economic Security Act, more commonly known as the CARES Act. |
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5. Subordinate to Applicable Laws. The provisions of this letter amendment are intended to be subject and subordinate to any applicable federal, state or local laws and orders now or hereafter in effect to the extent that the terms of this letter amendment are inconsistent therewith. |
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6. No Third Party Beneficiaries. Nothing in this letter amendment, whether express or implied, is intended to grant to, or confer upon, any person or entity any rights or remedies under, or by reason of, this letter amendment other than the parties hereto, and no person or entity shall be deemed a third party beneficiary of this letter amendment or any provision hereof. |
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7. Full Force and Effect. Except as expressly amended and modified as set forth in this letter amendment, the terms and provisions of the Agreement remain the same and in full force and effect. |
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Please signify TCM’s agreement to the terms of this letter amendment by countersigning a copy in the space provided below and returning the signed copy to Los Angeles World Airports |
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Commercial Development Group no later than May 31, 2020. If TCM fails to return a countersigned copy of this letter amendment by such date, the City’s offer to enter into the terms of this letter amendment shall be deemed revoked. |
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Sincerely, |
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APPROVED AS TO FORM: |
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CITY OF LOS ANGELES |
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Michael N. Feuer, |
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By: |
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City Attorney |
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Chief Executive Officer |
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Department of Airports |
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By: |
/s/ Rosario Tobias |
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Deputy/Assistant City Attorney |
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By: |
/s/ Tatiana Starostina |
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Chief Financial Officer |
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Department of Airports |
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The undersigned TCM hereby agrees to the foregoing letter amendment: |
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Date: |
May 6, 2020 |
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URW Airports, LLC |
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ATTEST: |
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By: |
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By: |
/s/ Michael Salzman |
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Name: |
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Name: |
Michael Salzman |
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Title: |
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Title: |
EVP and Group Director, Airports |
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.20.3
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BOARD FILE |
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CONFORMED COPY |
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RESOLUTION NO. 27118 |
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LAX Van Nuys City of Los Angeles Eric Garcetti Board of Airport Sean O. Burton Valeria C. Velasco Gabriel L. Eshaghian Justin Rebecca |
BE IT RESOLVED that, on recommendation of Management, the Board of Airport Commissioners approved the Second Letter Agreements for the Concessionaire Relief Program amending concession agreements at Los Angeles International Airport listed in Attachments 1, 2 and 3 to the Board-adopted staff report attached hereto and made part hereof; and BE IT FUTHER RESOLVED that said Second Letter Agreements will [i] abate or adjust the Minimum Annual Guarantee through June 30, 2021 for the individual concession agreements listed in said Attachments 1, 2 and 3, [ii] defer storage rent through December 31, 2020 and allow payback of deferred storage rent to commence January 1, 2021 for the individual concession agreements listed in Attachment 1 (collectively “In-Terminal Concession Agreements”), [iii] extend the current expiration dates of the respective individual In-Terminal Concession Agreements (as conditioned in the applicable Second Letter Agreements) and Terminal Media Operator Agreement by twenty-four (24) months, and [iv] authorize the Chief Executive Officer to have two (2) consecutive twelve (12)-month options to delay the required mid-term refurbishment dates for the respective individual In-Terminal Concession Agreements, in his or her sole discretion; and BE IT FURTHER RESOLVED that the Board authorized the Chief Executive Officer, or designee, to execute the Second Letter Agreements after approval as to form by the City Attorney and approval by the Los Angeles City Council; and BE IT FURTHER RESOLVED that this item is administratively exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article II, Section 2.f of the Los Angeles City CEQA Guidelines; and BE IT FURTHER RESOLVED that this action is subject to the provisions of Los Angeles City Charter Sections 606. o0o I hereby certify that this Resolution No. 27118 /s/ Grace Miguel Grace Miguel – Secretary Approved by City Council on October 21, 2020 |
1 World Way Los Angeles California 90045-5803 Mail P.O. Box 92216 Los Angeles California 90009-2216 Telephone 855 463 5252 Internet www.lawa.org
SUBJECT: |
Second Letter Agreements for the Program that Amend Concession Agreements at Los Angeles International Airport |
Approve the Second Letter Agreements for the Concessionaire Relief Program that amends concession agreements at Los Angeles International Airport as follows: (i) to abate or adjust the Minimum Annual Guarantee through June 30, 2021 for the individual concession agreements listed in Attachments 1-3 (collectively “Concession Agreements”), (ii) defer Storage Rent through December 31, 2020 and allow the payback of deferred Storage Rent to commence January 1, 2021 for the individual concession agreements listed in Attachment 1 (collectively “In-Terminal Concession Agreements”), (iii) extend the current expiration dates of the respective individual In-Terminal Concession Agreements (as conditioned in the applicable Second Letter Agreements) and Terminal Media Operator Agreement (“TMO Agreement”) by twenty-four (24) months, and (iv) authorize the Chief Executive Officer to have two consecutive twelve-month options to delay the required mid-term refurbishment dates for the respective individual In-Terminal Concession Agreements in his or her sole discretion.
RECOMMENDATIONS:
Management RECOMMENDS that the Board of Airport Commissioners:
1. |
ADOPT the Staff Report; |
2. |
DETERMINE that this action is administratively exempt from the California Environmental Quality Act (CEQA) pursuant to Article II, Section 2.f. of the Los Angeles City CEQA Guidelines; |
Page 1
Second Letter Agreement
Concession Rent Relief
3. |
FIND that the use of competitive bidding for the 24-month extensions to the expiration dates for the In-Terminal Concessions and the Terminal Media Operator Agreement would be undesirable and impractical under Section 10.15(a)(10) of the City of Los Angeles Administrative Code and Section 371(e)(10) of the City of Los Angeles Charter; |
4. |
APPROVE the extension of the current expiration dates in the respective individual In-Terminal Concession Agreements (as conditioned in the applicable Second Letter Agreements) and the TMO Agreement by twenty-four (24) months; |
5. |
AUTHORIZE the Chief Executive Officer or his or her designee to have two consecutive twelve-month options to delay the required mid-term refurbishment dates for the respective individual In-Terminal Concession Agreements; |
6. |
APPROVE the proposed Second Letter Agreements for the Concessionaire Relief Program that amends the Concession Agreements listed in Attachments 1, 2 and 3; and, |
7. |
AUTHORIZE the Chief Executive Officer or his designee to execute the proposed Second Letter Agreements for the Concessionaire Relief Program that amends Concession Agreements at Los Angeles International Airport, subject to approval as to form by the City Attorney and approval by the Los Angeles City Council. |
DISCUSSION:
1. |
Purpose |
To temporarily revise the payment terms of Concessions Agreements, extend the expiration date by twenty-four months for the In-Terminal Concession Agreements and TMO Agreement, and authorize the Chief Executive Officer to have two consecutive twelve-month options to delay the required mid-term refurbishment dates for the respective In-Terminal Concession Agreements, in his or her sole discretion, and defer storage rent for the In-Terminal Concession Agreements.
2. |
Prior Related Actions |
April 16, 2020 – Resolution No. 27003
The Board of Airport Commissioners (Board) approved revisions of payment terms of Certain In-Terminal Concession Agreements and Rental Car Concession Agreements. Under these agreements, Concessionaires will make payment of deferred percent rents/fees accrued during the initial rent relief period of April 1, 2020 through June 30, 2020 in six (6) equal payments starting July 1, 2020.
In-Terminal Concession Agreements
The Terminal Commercial Manger (TCM) has two Agreements with original expiration dates of January 31, 2029 for LAA-8613 and June 30, 2029 for LAA-8640. LAWA amended the expiration dates in 2016 extending the term to June 30, 2032 for LAA-8613 and various dates for LAA-8640 of June 20, 2032 for Terminal 1, June 30, 2029 for Terminal 3, and September 30, 2030 for Terminal 6. The action requested here will extend the TCM Agreements expiration dates an additional 24 months to January 31, 2034 for LAA-8613 and Terminal 1 under LAA-8640, June 30, 2031 for Terminal 3 under LAA-8640, and September 30, 2032 for Terminal 6 under LAA-8640.
Page 2
Second Letter Agreement
Concession Rent Relief
The Food and Beverage Concession Agreements with Areas USA LAX, LLC, DN Dakota JME, and Host International were entered into in 2010 with an original expiration date of June 30, 2021. LAWA amended the expiration dates in 2013 extending the term to June 30, 2023. The action requested here will extend the Food and Beverage Agreements expiration dates an additional 24 months to June 30, 2025.
The Retail Concession Agreements with Hudson-Magic Johnson Enterprises-Concourse Ventures, LLC, LAX Retail Magic 2 JV, LAX Retail Magic 3-4 JV, and XpresSpa were entered into in 2010 with an original expiration date of June 30, 2021. LAWA amended the expiration dates in 2013 extending the term to June 30, 2023. The action requested here will extend the Retail Concession Agreements expiration dates an additional 24 months to June 30, 2025.
The Duty Free Concession Agreement with DFS Group, LLC was entered into in 2012 with an original expiration date of September 30, 2023 and three one-year options to extend at LAWA’s discretion. LAWA amended the expiration date in 2013 extending the term to September 30, 2024. The action requested here will automatically allow LAWA to exercise two of the extension options of the Duty Free Concession Agreement resulting in an expiration date of September 30, 2026.
The Vending Concession Agreement with Bottling Group was entered into in 2015 with an expiration date of September 30, 2020. The action requested here will extend the Vending Concession Agreement expiration date an additional 24 months to September 30, 2022.
The Expedited Passenger Service Concession Agreement with AlClear was entered into in April 2020 with an expiration date of March 31, 2025. The action requested here will extend the Expedited Passenger Service Concession Agreement expiration date an additional 24 months to March 31, 2027.
Terminal Media Operator Agreement
The Terminal Media Operator (TMO) Agreement, entered into in 2014, had an original expiration date of December 31, 2020. The TMO Agreement contained a provision by which LAWA could extend the expiration date three (3) years to December 31, 2023 by providing notice to the TMO. LAWA recently provided notice and extended the expiration date. The action requested here will extend the TMO Agreement expiration date an additional 24 months to December 31, 2025.
3. |
Current Action |
Concession Agreements require concessionaires to pay rent/fees to Los Angeles World Airports (LAWA) in an amount equal to the greater of defined percentages of their gross sales or a Minimum Annual Guarantee (MAG). The contractual MAG requirements are quite substantial due to the highly competitive concession environment at Los Angeles International Airport (LAX). Despite these high MAG requirements, the concessionaires have historically performed well because passenger volumes generated sales at levels that pushed concessionaire rent payments into percentage fee, meaning that the concessionaires’ businesses were performing at levels that exceeded the MAG threshold.
The decline in passenger traffic due to COVID-19 travel restrictions continues to impact concession operators and the MAGs continue to greatly exceed total sales, which is not sustainable for concessionaire businesses.
On April 16, 2020, the Board approved a relief package that amended the terms of concession agreements to allow concessionaires to pay percentage rent/fees instead of the MAG for the months of April, May and June 2020. Concessionaires were required to meet certain requirements in order to be eligible to receive this relief.
Decreased levels of passenger traffic due to COVID-19 travel restrictions have contributed to lower concession revenues. Further, at this time, LAWA does not know when passenger traffic will return to levels seen prior to the COVID-19 pandemic. Concessionaires, including the TCM and TMO, have informed LAWA that they are currently not realizing sufficient gross revenues that would allow them to pay the MAG amounts and likely will not be able to do so for some time.
Concessionaires have informed LAWA that rent/fee relief is needed to have a sustainable business during this period of passenger traffic decline. LAWA believes that if concessionaires have a sustainable business, it will also benefit LAWA with a continued revenue stream, and benefit passengers with uninterrupted access to concession offerings. Further, if a situation arises whereby LAWA would need to replace a concessionaire during times when passenger traffic is low, there may not be many potential concessionaires willing to commit to a concession agreement during a pandemic.
LAWA believes it is in the best interest of the concessionaires, LAWA, and the traveling public to provide additional relief in the form of a Second Letter Agreements to concessionaires to help them maintain sustainable businesses during this decline in passenger volume caused by the COVID-19 travel restrictions. Therefore, LAWA intends to provide additional relief in the form of Second Letter Agreements to concessionaires to help them maintain sustainable businesses during this decline in passenger volume caused by the COVID-19 travel restrictions.
Page 3 Second Letter Agreement Concession Rent Relief Proposed Second Letter Agreements (“Second Letters”) The proposed Second Letters will provide relief for In-Terminal Concession Agreements, the TMO Agreement, and the On-Airport Rental Car Concession Agreements listed on Attachments 1, 2 and 3 to this report for Concessionaires that either (i) executed the first relief agreement and complied with the terms of the first relief agreement, or (ii) if they did not execute the first relief agreement, they remain current on all monetary obligations due to LAWA under the Concession Agreements and all other currently existing contracts, agreements, leases, permits, or licenses with LAWA up to the date of the execution of the Second Letters through the end of the Second Letter Duration Period, as defined in this Board Report and the Second Letters. Further, the Second Letters require Concessionaires who have filed for bankruptcy protection prior to executing the Second Letters, or who may file for bankruptcy protection after executing the Second Letter, to have bankruptcy court approval to pay their monetary obligations (pre and post-petition obligations) under their agreement(s) with LAWA. Additionally, the Concessionaires will be required to pass along to all sub-concessionaires the same benefits received by the prime on a ratable basis.
The terms of the proposed Second Letters are:
In-Terminal Concessions Agreements (Listed in Attachment 1)
Concession |
Revise the terms as follows: |
Rent/Fees |
1. As to In-Terminal Concession Agreements (excluding the two concession agreements with TCM), beginning on July 1, 2020 |
Page 4
Second Letter Agreement
Concession Rent Relief
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and ending on June 30, 2021 (“Duration Period”), LAWA will either: a) Only require current payment of the applicable percentage rent/fees defined in the respective agreement and abate payment of the MAG if the Concessionaire did not receive any funding through a federal program from which Concessionaire paid its monetary obligations under the Agreement; or, b) If the Concessionaire did receive any grants through a Federal program, only require current payment of the applicable percentage rent/fees defined in each respective agreement plus an adjusted MAG equal to the amount of any Federal grants applied by Concessionaire to payment of its monetary obligations under the Agreement. 2. As to the two TCM Concession Agreements, during the Duration Period, LAWA will either: a) Only require current payment of the applicable percentage/fees in the respective TCM Agreement, without reduction of the TCM Improvement Allowance or the TCM Management Fee, as such terms are defined in the TCM Agreements, except as follows: TCM may deduct up to 75% of the TCM Management Fee from the amount due to LAWA under the conditions set forth in the applicable Second Letters, and abate payment of the MAG if the TCM did not receive any funding through a federal program from which TCM paid its monetary obligations under the Agreement; or, b) If the TCM did receive any grant through a Federal program, only require the applicable percentage/fees in the respective TCM Agreement without reduction of the TCM Improvement Allowance or the TCM Management Fee, as such terms are defined in the TCM Agreements, except as follows: TCM may only deduct up to [**] of the TCM Management from the amount due to LAWA under the conditions set forth in the applicable Second Letters, and TCM will also pay an adjusted MAG equal to the amount of any Federal grants applied by TCM to payment of its monetary obligations under the Agreement. |
Storage Rent |
Deferment of Storage Rent from July 1, 2020 through December 31, 2020, and extend the period that accrued deferred Storage Rent must be remitted in six (6) equal monthly installments to start January 1, 2021 through June 30, 2021. |
Mid-Term |
Authorize the Chief Executive Officer to have two consecutive twelve–month options to delay the required mid-term refurbishment dates for the respective In-Terminal Concession Agreements. TCM shall pass on the benefit of such extension of time period for mid-term refurbishment to its sub-concessionaires to the extent applicable. |
Term Extension |
Extend the current expiration dates by twenty-four (24) months only if, in addition to meeting the pre-conditions in the letter, the health |
Page 5
Second Letter Agreement
Concession Rent Relief
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insurance contribution has been paid as specified in the letter. There are different expiration dates for these concession agreements. Also requires TCM to agree to offer, to its sub-concessionaires, the same extension to the current expiration dates in each of the sub-concession agreements, and to enter into such extension with such sub-concessionaires if such offer is accepted. |
In consideration for the benefits provided to Concessionaires (and as a condition to Concessionaire’s right to receive such benefits), Concessionaires listed on Attachment 1 must meet the following requirements:
| ● | For each employee who (1) has been laid off, furloughed, or experienced reduced hours since March 1, 2020 and before June 30, 2020, and (2) for whom in February 2020 Concessionaire [or Licensee] made contributions or premium payments for healthcare coverage, Concessionaire [or Licensee] shall, no later than October 31, 2020, make contributions or premium payments in the same amount and for the same level of coverage as the Concessionaire [or Licensee] made for the employee in February 2020 for each of the four consecutive calendar months immediately subsequent to the employee’s layoff, furlough, or reduction in hours during which such employee remained laid off, furloughed, or experienced reduced hours (“Health Insurance Contribution”). Concessionaire [or Licensee] shall be credited with a month for each of the required four months in which Concessionaire [or Licensee] has previously made the above required contributions or payments. Alternatively, if Concessionaire [or Licensee] declined relief under the First Letter and has paid the MAG otherwise owed by Concessionaire [or Licensee] to LAWA for the months of April, May and June 2020, Concessionaire [or Licensee] shall receive credit for two (2) months of Health Insurance Contribution. Any percentage rents/fees already paid to LAWA for April, May and June 2020 will be credited towards any MAG owed for the same time period: |
Concessionaire may, at Concessionaire’s discretion, add a surcharge of up to three percent (3%) on concession sales to guests to be applied to the costs of the health insurance contribution requirement set forth above, until such time as the cumulative total amount of such surcharge equals the total amount of the Health Insurance Contribution paid by Concessionaire, or if such total amount has not been reached, until September 30, 2021, whichever comes first; and provided that such health insurance contribution is being made on a current basis during the period of such surcharge. TCM may permit its sub-concessionaires (in such sub-concessionaire’s discretion) to do the same regarding such sub-concessionaires’ sales to guests.
Extension of the In-Terminal Concession Agreements
The impacts of COVID-19 on Concessionaires continue to be extreme. Concessionaires with In-Terminal Concession Agreements, which includes the TCM, are not realizing sufficient gross revenues that allow them to pay the MAG amounts, amortize their investments, or earn the projected returns originally contemplated when the respective Request for Proposals were issued and when Agreements were executed. All of the In-Terminal Concession Agreements were procured through a Request for Proposal (“RFP”) that included definitive not-to-exceed termination dates that cannot be extended without an amendment to the Agreement.
The defined term (length of time) for the respective In-Terminal Concession Agreements contemplated that the successful proposer would be provided with a specific time frame to
Page 6 Second Letter Agreement Concession Rent Relief operate concession facilities and depreciate capital investments.
Due to the dramatic decline in the concession business and near total evaporation of revenues, the current expiration dates of the individual In-Terminal Concession Agreements need to be extended by twenty-four (24) months in order for the concessionaires to receive the contract term that LAWA contemplated to provide them with sufficient operating time to recover their investments and remain viable businesses so that they can continue to generate revenue, and provide the public with continued concession services at the LAX terminals.
All of the In-Terminal Concession Agreements, except for the two TCM Agreements, will expire in the next three years. Although the TCM Agreements will expire between 2029 and 2032 inclusive, the extension of the current expiration dates by twenty-four (24) months is needed because the expiration dates of TCM’s sub-concessionaire agreements will expire sooner than the full term of the TCM Agreements. The unintended consequence of this is that there will not be sufficient time left on the TCM Agreements to allow the TCM to solicit new operators for these spaces after the existing sub-concession agreements expire because many spaces will be available for less than five years if the current expiration dates in the TCM Agreements remain unchanged. This short period will not allow sufficient time for the future operators to amortize the significant investment that is required to repurpose the concession areas.
In addition, the proposed Second Letters require TCM to agree to offer to its sub-concessionaires an extension of the current expiration dates in each of the sub-concession agreements by twenty-four months, and to enter into such extension with such sub-concessionaires if such sub-concessionaires accept such offer, which will then provide these sub-concessionaires additional time to recover investments and remain viable businesses so that they can continue to generate revenue, and provide the public with continued concession services at the LAX terminals.
In normal operating circumstances, staff would conduct a competitive process prior to the expiration date of an existing contract that had been competitively procured. However, when the Board finds that the use of competitive bidding would be undesirable and/or impractical under Section 10.15(a)(10) of the City of Los Angeles Administrative Code and Section 371 (e)(10) of the City of Los Angeles Charter, LAWA need not conduct such competitive process. In these economic times, and as discussed above, a competitive bidding process through RFPs for new concession agreements for the twenty-four (24) months period is impractical and undesirable. In addition, as discussed above, the extension of time requested is compatible with the City’s interests under City Charter Section 372.
Staff requests extending the current expiration date of individual In-Terminal Concession Agreements by twenty-four months to achieve the desired result discussed above. Therefore, LAWA staff recommends that the Board find that the proposed extension of the In-Terminal Concession Agreements is exempt from the competitive process under City Charter Section 371 (e)(10) and Los Angeles Administrative Code Section 10.15(a)(10).
Terminal Media Operator (Listed on Attachment 2)
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Duration Period |
July 1, 2020 to June 30, 2021 |
Concession Fees |
1) Revise the terms to include the following: a) Only require current payment of the applicable percentage fees defined in the TMO Agreement and abate payment of the MAG if the TMO did not receive any funding through a federal program from which the TMO paid its monetary obligations under the Agreement; or, |
Page 7
Second Letter Agreement
Concession Rent Relief
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b) If the TMO did receive any grant through a Federal program, only require current payment of the applicable percentage fees defined in the Agreement plus an adjusted MAG equal to the amount of any Federal grants applied by the TMO to payment of its monetary obligations under the Agreement. |
Term Extension |
Extend the existing expiration date by twenty-four months from December 31, 2023 to December 31, 2025. |
Extension of the Terminal Media Operator Agreement
The impacts of COVID-19 on the TMO continues to be extreme. The TMO is not realizing sufficient gross revenues from in terminal advertising and sponsorships to pay the MAG amounts, earn the projected returns originally contemplated when the RFP was issued and these Agreements were executed, or amortize the considerable costs required by the TMO Agreement (for example the costs of ongoing production of creative content for the iconic Clock Tower and Story Board features in the Tom Bradley International Terminal (TBIT). Given the ongoing COVID-19 near total evaporation of advertising and sponsorship revenues, an additional 24 month extension is necessary to allow the TMO to amortize those ongoing costs still required by the TMO Agreement and to remain a viable business operation at LAX ready to hit the ground running when passenger traffic and sponsors and advertisers return.
As noted in this report, extending the TMO Agreement by 24 months now is necessary to achieve LAWA’s interest in and desired result to have a successful revenue generating advertising and sponsorship program at LAX through 2025, it is not desirable or practical to run a competitive process for a new TMO Agreement for the period December 31, 2023 to December 31, 2025. In these economic times, for the reasons also noted above for the In-Terminal Concessions extension, the extension of the TMO contract through an RFP process for an additional two years is undesirable and impractical and the Board’s approval of the proposed amendment is compatible with the City’s interests per City Charter Section 372. Staff therefore requests the Board find that the use of competitive bidding for the extension requested would be undesirable and/or impractical under Section 10.15(a)(10) of the City of Los Angeles Administrative Code and Section 371 (e)(10) of the City of Los Angeles Charter, and LAWA need not conduct such competitive process.
On-Airport Rental Car Concession Agreements (listed in Attachment 3)
Duration |
July 1, 2020 through June 30, 2021 |
Concession |
1) Revise the terms to either: a) Only require current payment of the applicable percentage rent/fees defined in each Agreement and abate payment of the MAG if the Concessionaire did not receive any funding through a federal program from which Concessionaires paid its monetary obligations under the Agreement; or, b) If the Concessionaire did receive any grant through a Federal program, only require current payment of the applicable |
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percentage rent/fees defined in each Agreement plus an adjusted MAG equal to the amount of any Federal grants applied by Concessionaire to payment of its monetary obligations under the Agreement. |
How this action advances a specific strategic plan goal and objective
This action advances this strategic goal and objective: Sustain a Strong Business: Diversify and grow revenue sources, and manage costs. Authorizing and approving the proposed extension to Temporary Relief and Forbearance Period Program will enable the concessionaires to substantially reduce operating expenses. Temporarily relieving the burden of the MAG component will allow concessionaires to pay rent/fees based on percentage of sales and airport revenues will recover in parallel to passenger level increases.
Action Requested
Page 8 Second Letter Agreement Concession Rent Relief LAWA staff requests the Board authorize the Chief Executive Officer to execute the proposed Second Letters that, if accepted will temporarily revise the payment terms of Concession Agreements, extend the expiration date by twenty-four months for the In-Terminal Concession Agreements (as conditioned in the applicable Second Letters) and the TMO Agreement, authorize the Chief Executive Officer to have two consecutive twelve-month options to delay the required mid-term refurbishment dates for the respective In-Terminal Concession Agreements in his or her sole discretion, and defer Storage Rent and allow the payback of deferred Storage Rent, as set forth in this report.
Fiscal Impact
The Fiscal Impact of this action to extend the temporary relief program is projected to be an additional loss of approximately $132.9 million in FY2021 revenue, and is also estimated to reduce LAWA unrestricted cash in FY2021 by the same amount. The actual loss of revenue and reduction in unrestricted cash will largely depend on the levels of passenger traffic during the extended temporary period through June 30, 2021. LAWA staff has previously anticipated the possibility of extending the temporary relief program through the end of FY2021 and has budgeted FY2021 revenue accordingly.
4) |
Alternatives Considered |
| ● | Take No Action - Taking no action would require all concessionaires to pay rent/fees at MAG levels established during normal passenger activity and corresponding sales levels. The continued dramatic decline in passenger traffic makes these MAG payments unsustainable. If the concessionaires remain obligated to pay the full MAG amounts during this downturn, they will not generate enough gross revenue to cover the MAG rent obligations which is unsustainable and likely cause them to cease operations. MAG that greatly exceeds revenue exposes LAWA to the risk that locations will close. Replacing concessionaires is a lengthy process and likely will result in additional lost revenue for LAWA as stores are shuttered during the period when passenger levels return. |
APPROPRIATIONS:
No appropriation of funds is required for this action.
Page 9
Second Letter Agreement
Concession Rent Relief
STANDARD PROVISIONS:
1. |
This item, as a continuing administrative, maintenance and personnel-related activity, is administratively exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article II, Section 2.f. of the Los Angeles City CEQA Guidelines. |
2. |
This proposed document(s) is/are subject to approval as to form by the City Attorney. |
3. |
Actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606. |
4. |
This action is not subject to the provisions of the Living Wage/ Worker Retention Ordinances. |
5. |
This action is not subject to the provisions of the Business Enterprise (BE) Programs. |
6. |
This action is not subject to the provisions of the Affirmative Action Program. |
7. |
This action does not require a Business Tax Registration Certificate number. |
8. |
This action is not subject to the provisions of the Child Support Obligations Ordinance. |
9. |
This action is not subject to the insurance requirements of the Los Angeles World Airports. |
10. |
This action is not subject to the provisions of Charter Section 1022 (Use of Independent Contractors). |
11. |
This action is not subject to the provisions of the Contractor Responsibility Program. |
12. |
This action is not subject to the provisions of the Equal Benefits Ordinance. |
13. |
This action is not subject to the provisions of the First Source Hiring Program. |
14. |
This action is not subject to the provisions of Bidder Contributions CEC Form 55. |
15. |
This action is not subject to the provisions of the Iran Contracting Act. |
Page 10
Second Letter Agreement
Concession Rent Relief
Attachment 1
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Agreement Type |
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Tenant |
Contract Number |
Terminal Commercial Management Concession Agreement |
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URW Airports, LLC |
LAA-8640 |
Terminal Commercial Management Concession Agreement |
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URW Airports, LLC |
LAA-8613 |
Airport Duty Free Merchandise Concession Agreement |
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DFS Group, L.P. |
LAA-8647 |
Retail Concession Agreement (Hudson Group) |
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Hudson-Magic Johnson Enterprises-Concourse Ventures, LLC |
LAA-8550 |
Retail Concession Agreement (Hudson Group) |
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LAX Retail Magic 2 JV |
LAA-8551 |
Retail Concession Agreement (Hudson Group) |
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LAX Retail Magic 3-4 JV |
LAA-8552 |
Retail Concession Agreement (Hudson Group) |
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LAX Retail Magic 3-4 JV |
LAA-8542 |
Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
LAA-8546 |
Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
LAA-8547 |
Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
LAA-8548 |
Branded Coffee and Food and Beverage Concession Agreement |
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Areas USA LAX, LLC |
LAA-8843 |
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Fast Casual Dining and Branded Coffee Food and Beverage Agreement |
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Areas USA LAX, LLC |
LAA-8964 |
Food and Beverage Concession Agreement (Delaware North Companies Travel Hospitality Services) |
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DN/Dakota JME 8589 Farmers, LLC |
LAA-8589 |
Food and Beverage Concession Agreement (Delaware North Companies Travel Hospitality Services) |
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DN/Dakota JME 8549 Pucks, LLC |
LAA-8549 |
Food and Beverage Concession Agreement (HMS Host Corp) |
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Host International, Inc. |
LAA-8586 |
Food and Beverage Concession Agreement (HMS Host Corp) |
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Host International, Inc. |
LAA-8587 |
Concession Agreement (For Vending Machine Services) |
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Bottling Group LLC |
LAA-8882 |
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Non-Exclusive Space Use License Agreement (For Expedited Traveler Services) |
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AlClear, LLC |
LAA-8946 |
Concession Agreement |
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XpresSpa |
LAA-8543 |
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Currency Exchange and Business Services Concession Agreement |
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Lenlyn Ltd dba ICE Currency Services |
LAA-8831 |
Attachment 2
Agreement Type |
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Tenant |
Contract Number |
Terminal Media Operator |
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JCDecaux Airport, Inc. |
LAA-8796 |
Concession Phase2 Agreements 7-30-2020
Attachment 3
On-Airport RAC |
Agmt # |
Alamo Rental (US)LLC |
LAA-8139 |
Avis Rent A Car System, LLC |
LAA-8137 |
Budget Rent A Car System, Inc. |
LAA-8138 |
Dollar Rent A Car - DTG Operations, Inc. |
LAA-8141 |
Enterprise Rent A Car Company of Los Angeles, LLC |
LAA-8142 |
Fox Rent A Car, Inc. |
LAA-8143 |
The Hertz Corporation |
LAA-8136 |
National Rental (US) LLC |
LAA-8140 |
Sixt Rent A Car, LLC |
LAA-8870 |
Thrifty Car Rental - DTG Operations, Inc. |
LAA-8144 |
Concession Phase2 Agreements 7-30-2020
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Board File |
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September 30, 2020 |
Sent via email to mike.salzman@urw.com |
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Mike Salzman Exec Vice President & Group Director, Airports URW Airports, LLC 2049 Century Park East Los Angeles CA 90067 USA |
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LAX Van Nuys |
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City of Los Angeles Eric Garcetti Board of Airport Sean O. Burton Valeria C. Velasco Gabriel L. Eshaghian Justin Erbacci |
Re:LETTER AMENDING Terminal Commercial Management Concession Agreement LAA-8640 dated March 1, 2012 between CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS and URW Airports, LLC (said agreement as may have been heretofore amended is referred to herein as the “Agreement”). This second letter (“Second Letter”) is made and entered into this 30 day of December, 2020, at Los Angeles, California by and between the CITY OF LOS ANGELES, a municipal corporation (hereinafter referred to as “City”), acting by and through its Board of Airport Commissioners (the “Board”) and URW Airports, LLC (“TCM”). In consideration of the recent decline in flight and passenger traffic at Los Angeles International Airport and the resulting temporary decline in airport revenue generating opportunities, by this Second Letter, the parties to the above-referenced Agreement hereby amend the Agreement in order to provide temporary rental relief on the terms and subject to the conditions set forth in this Second Letter. 1.Pre-conditions to Second Letter. The temporary rental relief under this Second Letter is only available to TCM under the following conditions: a.First Letter. TCM may execute this Second Letter if it previously agreed to and timely signed the first letter for temporary rent relief from the City (“First Letter”) and TCM is, and will continue to be, in compliance with the requirements under the First Letter; or b.Current on All Rent Payments Due to the City. Even if TCM did not sign the First Letter, TCM may execute this Second Letter if TCM remains current on all monetary obligations under the Agreement, as well as under any other currently existing contract, agreement, lease, permit, or license, with the City, up to the date of execution of this Second Letter by TCM and through the end of the Duration Period, as defined under Section 2.a below. For purposes of this section, the term “current” means in accordance with the “Los Angeles World Airports - Accounts Receivable Collection Policies and Procedures for Leases/Licenses/Permits/Concession Agreements, dated July 1, 2019,” as may be amended from time to time. |
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1 World Way Los Angeles California 90045-5803 Mail P.O. Box 92216 Los Angeles California 90009-2216 Telephone 855 463 5252 Internet www.lawa.org
Mike Salzman
September 30, 2020
Page 2
c.Failure to Comply Under Section 1.a or 1.b. If TCM fails to comply, as required under Section 1.a or 1.b above, any abated, adjusted or deferred rent or fees shall immediately become due and payable in full upon demand by the City, and the City shall have the right to enforce the Agreement as if there were no such abatement, adjustment or deferral.
d.Bankruptcy. If TCM has filed for bankruptcy, or files for bankruptcy during the Duration Period, TCM agrees and acknowledges that this Second Letter is entered into subject to the approval of the bankruptcy court in its bankruptcy case. In the event the Court does not approve this Second Letter, including the requirement that TCM pay all prepetition and post-petition obligations it owes to the City, this Second Letter will no longer be in force and TCM will be liable for all obligations it owes under the Agreement.
e.Sub-concessionaires. TCM shall provide the same pre-conditions in Sections 1.a through 1.d above, modified to apply to its sub-concessionaires (i.e., TCM’s “Concessionaires” as defined in the Agreement) and its letter to such sub-concessionaires that amends the respective Unit Concession Agreement.
2.Temporary Abatement or Adjusted MAG. Subject to the terms and conditions set forth in this Second Letter, the Agreement is temporarily modified as follows:
a.Temporary Abatement of MAG. If, at the time that TCM executes this Second Letter, TCM and its sub-concessionaires have not received, and do not receive for the twelve (12) month period beginning on July 1, 2020 and ending on June 30, 2021 (the “Duration Period), any grant through the Coronavirus Aid Relief and Economic Security Act, more commonly known as the CARES Act, or any other similar grant through a Federal program, that can be used to pay for any monetary obligations payable by TCM under the Agreement and/or for any monetary obligations payable by its sub-concessionaires under their respective Unit Concession Agreements (“Federal Grant”), the portion of the minimum annual guaranteed rent/fees (also sometimes referred to as MAG) payable by TCM under the Agreement is hereby abated for the Duration Period. For the Duration Period, TCM shall pay percentage rent/fees on gross revenues from TCM’s operations for such period based on the applicable percentage rate(s) or multiplier(s) set forth in the Agreement, with reduction for the TCM Improvement Allowance and the TCM Management Fee (as such terms are defined in the Agreement) but only to the extent expressly provided for below in this paragraph.
Mike Salzman
September 30, 2020
Page 3
If the amount of such percentage rent/fees for any given month during the Duration Period is less than or equal to the monthly MAG that would have been payable absent abatement, then such percentage rent/fees payable for such month shall be reduced by: (a) an amount equal to [**] of the TCM Management Fee applicable to such month (calculated as one-twelfth (1/12) of the annual TCM Management Fee for the applicable Year (as defined in the Agreement)) and (b) the TCM Improvement Allowance applicable for such month (calculated as one-twelfth (1/12) of the annual TCM Improvement Allowance for the applicable Year) up to the full amount of such percentage rent/fees payable for such month (it being understood that such reduction amounts shall not exceed the amount of the percentage rent/fees payable for such month, and any unapplied portion of the TCM Management Fee and/or the TCM Improvement Allowance for such month cannot be carried back or forward as a credit against the percentage rent/fees payable in any other month and cannot be otherwise applied as a credit or offset against the rent due under the Agreement for the applicable Year, notwithstanding anything in the Agreement). If the amount of such percentage rent/fees for any given month during the Duration Period is greater than the monthly MAG that would have been payable absent abatement, then such percentage rent/fees payable for such month shall be reduced by: (a) an amount equal to [**] of the TCM Management Fee applicable to such month (calculated as one-twelfth (1/12) of the annual TCM Management Fee for the applicable Year) and (b) the TCM Improvement Allowance applicable for such month (calculated as one-twelfth (1/12) of the annual TCM Improvement Allowance for the applicable Year) up to the full amount of such percentage rent/fees payable for such month (it being understood that such reduction amounts shall not exceed the amount of the percentage rent/fees payable for such month, and any unapplied portion of the TCM Management Fee and/or the TCM Improvement Allowance for such month cannot be carried back or forward as a credit against the percentage rent/fees payable in any other month and cannot be otherwise applied as a credit or offset against the rent due under the Agreement for the applicable Year, notwithstanding anything in the Agreement). The parties acknowledge and agree that the percentage rent/fees payable under the terms of the First Letter for the three (3) month period beginning April 1, 2020 and ending on June 30, 2020 shall be subject to reduction for the TCM Improvement Allowance and the TCM Management Fee as provided in the Agreement.
b.Temporary Adjusted MAG. If, at the time that TCM executes this Second Letter, TCM and/or its sub-concessionaires have received, or receive during the Duration Period, any Federal Grant, for the Duration Period, TCM shall pay percentage rent/fees on gross revenues from TCM’s operations for such period based on the applicable percentage rate(s) or multiplier(s) in addition to the MAG set forth in the Agreement, without reduction for the TMC Improvement Allowance or the TCM Management Fee (except as expressly permitted in Section 2.a above); provided, however, that, for the Duration Period, such MAG amount due will be equal to the amount of any Federal Grant used by TCM to pay for any of its monetary obligations under the Agreement plus the amount of any Federal Grant used by TCM’s sub-concessionaires to pay for any of their monetary obligations under their Unit Concession Agreements (“Adjusted MAG”), but such Adjusted MAG will not be more than that set forth in the Agreement.1 Commencing on July 1, 2020, TCM shall pay to the City such percentage rent/fees and Adjusted MAG on a current monthly basis.
Mike Salzman
September 30, 2020
Page 4
c.Written Documentation.
i. |
TCM shall provide written documentation to the City as follows: |
| ● | Name/type of the Federal Grant received and used by TCM, if any, and applied to payment of any monetary obligation under the Agreement (“Concession Monetary Obligations”); and |
| ● | A verification of the amount of Adjusted MAG, which shall include, but is not limited to, the amount and proportion of Federal Grant used by TCM and applied to the payment of Concession Monetary Obligations, and the total amount of Federal Grant received (collectively “Written Verification”), if any. |
ii.TCM shall (1) cause its sub-concessionaires to provide the following to TCM, (2) monitor such sub-concessionaires’ adherence to providing the following, and (3) provide the City with the following from its sub-concessionaires:
| ● | Name/type of the Federal Grant received and used by such sub-concessionaire, if any, and applied to payment of any monetary obligation under the Unit Concession Agreement (“UCA Concession Monetary Obligations”); and |
| ● | A verification of the amount of Adjusted MAG, which shall include, but is not limited to, the amount and proportion of Federal Grant used by such sub-concessionaire and applied to the payment of UCA Concession Monetary Obligations, and the total amount of Federal Grant received (collectively “Concessionaire Written Verification”), if any. |
iii. |
Due Date for Written Documentation. |
| ● | The written documentation required above regarding the Concession Monetary Obligations and Written Verification shall |
1 For example, if TCM received $100 from Federal Grant and applied $80 to any of its monetary obligations under the Agreement, TCM will pay $80 for the MAG provided, however, that the Adjusted MAG will not be more than the MAG set forth in the Agreement.
Mike Salzman
September 30, 2020
Page 5
be provided to the City no later than thirty (30) days after TCM has paid an Adjusted MAG to the City. TCM shall provide any other written documentation requested by City within ten (10) business days of such request, unless otherwise extended, in writing, by the Chief Executive Officer.
| ● | The written documentation required above regarding the UCA Concession Monetary Obligations and Concessionaire Written Verification shall be provided to the City by TCM no later than thirty (30) days after such sub-concessionaire has paid an Adjusted MAG to the TCM. TCM shall cause its sub-concessionaires to provide any other written documentation requested by City to TCM within ten (10) business days of such request, unless otherwise extended, in writing, by the Chief Executive Officer. |
iv.Audit. The City’s rights under the Agreement to audit and/or examine TCM’s books and records, as well as all of TCM’s obligations under the Agreement regarding such City’s rights, apply to this Second Letter.
d.No Late Charges/Fees. For the Duration Period, TCM will not incur any late charges or be charged late fees or interest regarding the date for payment of the MAG under the Agreement.
e.Adjustment of MAG.
i. If it appears to the City, on the basis of information it is able to accumulate during the Duration Period, that TCM (a) received or is receiving Federal Grant and (b) utilized such Federal Grant for Concession Monetary Obligations, but to date has not paid any Adjusted MAG, the City shall invoice TCM the Adjusted MAG that is owed to date, and TCM agrees to pay such delinquent amount within 15 days of the invoice date.
ii. If it appears to the City, on the basis of information it is able to accumulate during the Duration Period, that TCM has not been paying the correct amount of Adjusted MAG under Section 2.b above, the City shall make necessary adjustments to the Adjusted MAG and any resulting debit that is owed to date will be invoiced by the City, and TCM agrees to pay such amount within 15 days of the invoice date.
3.In-Terminal Concession Storage Rent.
Mike Salzman
September 30, 2020
Page 6
Notwithstanding the First Letter, the payment of any in-terminal concession storage rents payable under the Agreement for the period beginning on April 1, 2020 and ending on December 31, 2020 (the “Storage Rent Deferral Duration”) shall be either: (a) paid on a current monthly basis; or (b) deferred such that the amount of in-terminal concession storage rent accrued for the Storage Rent Deferral Duration is paid by TCM to City in six (6) equal consecutive monthly installments beginning January 1, 2021 and continuing through June 30, 2021, at the option of TCM. The City will not impose any late fees or interest charges on such deferred payments provided that they are timely paid as set forth above.
4.Mid-Term Refurbishment – The Chief Executive Officer may, in his or her sole discretion, exercise two consecutive twelve-month options to delay the dates or time period specified in the Agreement for mid-term refurbishment. If such option(s) is exercised, the Chief Executive Officer shall provide TCM with written notice of the extensions. TCM shall pass on the benefit of such extension(s) of time period for mid-term refurbishment provided to TCM by City to its sub-concessionaires to the extent applicable.
5.Extension of Current Expiration Date of Agreement. The current expiration date of the Agreement, as specified in the Agreement, is extended by twenty-four (24) months, only if, in addition to meeting the pre-conditions under Section 1.a or 1.b above, TCM has paid the Health Insurance Contribution, as required under Section 6.a below, and TCM provides to the City by October 31, 2020 written documentation, satisfactory to the City in its sole discretion, that demonstrates that such payment was made, either through financial proof that such payment was made to the appropriate and applicable health insurance entity, or a letter from the appropriate and applicable health insurance entity stating that such payment was made. Section 4.1.3 of the Agreement is hereby amended to provide that there shall be no reduction to the Base Percentage Rent and/or Percentage Rent for the TCM Improvement Allowance during such 24-month extended term. TCM agrees to offer to each of its sub-concessionaires a 24-month extension to the current term under such sub-concessionaire’s Unit Concession Agreement, under the conditions provided, and to enter into such extension with such sub-concessionaire if such sub-concessionaire accepts such offer. The written documentation of proof of payment of the Health Insurance Contribution by such sub-concessionaire, satisfactory to TCM and City, shall be provided by TCM to the City. The additional term being offered as part of this Second Letter may cause a sub-concessionaire to have a term in its Unit Concession Agreement that goes beyond ten (10) years. Under such circumstances, the Agreement requires written consent of the Chief Executive Officer. The execution of this Second Letter by the Chief Executive Officer is an acknowledgement in writing that such term extension is approved by the Chief Executive Officer.
Provided that the conditions under this Section 5 are met, the current expiration dates under the Agreement, as specified in the Agreement, are extended by twenty-four (24) months as follows:
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from June 30, 2032 to June 30, 2034 for Terminal 1; |
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from June 30, 2029 to June 30, 2031 for Terminal 3; |
Mike Salzman
September 30, 2020
Page 7
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from September 30, 2030 to September 30, 2032 for Terminal 6. |
6.TCM Covenants. In consideration for the benefits provided to TCM under this Second Letter (and as a condition to TCM’s right to receive such benefits), TCM hereby agrees as follows:
a.For each employee who (1) has been laid off, furloughed, or experienced reduced hours since March 1, 2020 and before June 30, 2020, and (2) for whom in February 2020 TCM made contributions or premium payments for healthcare coverage, TCM shall, no later than October 31, 2020, make contributions or premium payments in the same amount and for the same level of coverage as the TCM made for the employee in February 2020 for each of the four consecutive calendar months immediately subsequent to the employee’s layoff, furlough, or reduction in hours during which such employee remained laid off, furloughed, or experienced reduced hours (“Health Insurance Contribution”). TCM shall be credited with a month for each of the required four months in which TCM has previously made the above required contributions or payments. Alternatively, if TCM declined relief under the First Letter and has paid the MAG otherwise owed by TCM to LAWA for the months of April, May and June 2020, TCM shall receive credit for two (2) months of the Health Insurance Contribution. Any percentage rents/fees already paid to LAWA for April, May and June 2020 will be credited towards any MAG owed for the same time period.
b.TCM may permit its sub-concessionaires (in such sub-concessionaire’s discretion) to add a surcharge of up to [**] on concession sales to guests to be applied to the costs of their respective health insurance contribution requirement set forth in Section 6.e below, until such time as the cumulative total amount of such surcharge equals the total amount of the Health Insurance Contribution paid by such sub-concessionaire, or if such total amount has not been reached, until September 30, 2021, whichever comes first (“Surcharge Period”); and provided that such Health Insurance Contribution is being made on a current basis during the Surcharge Period. However, the actual surcharge received and applied to the Health Insurance Contribution during the Surcharge Period will not be considered to be a part of the gross revenues from TCM’s operations received during the Surcharge Period when calculating the percentage rent/fees to be paid by TCM to the City pursuant to Section 6.a above.
c.TCM shall demonstrate to the City’s reasonable satisfaction that TCM and its sub-concessionaires are not entitled to any business interruption insurance proceeds or similar benefits that are redundant to the rental relief provided in this Second Letter, and in the event that the City determines that TCM is or becomes entitled to any such benefits, the City reserves the right to decrease or limit the rental relief provided herein accordingly.
Mike Salzman
September 30, 2020
Page 8
d.Additionally, TCM and its sub-concessionaires shall adhere to all federal requirements with respect to use of funds in the event they qualify for and receive Coronavirus Aid Relief and Economic Security Act, more commonly known as the CARES Act, or any similar grant through a Federal program.
e.TCM shall pass along to all of its sub-concessionaires the same abatement, adjustment and deferral benefits received by TCM pursuant to this Second Letter on a pro-rata and nondiscriminatory basis, provided such sub-concessionaire agrees in writing to comply with the provisions of Sections 6.a above with respect to such sub-concessionaire’s employees and complies with such obligations. For such purposes of applying Section 6.a above to such sub-concessionaire’s employees, the provisions of Section 6.a above shall be interpreted to provide as follows: “For each employee who (1) has been laid off, furloughed, or experienced reduced hours since March 1, 2020 and before June 30, 2020, and (2) for whom in February 2020 Concessionaire made contributions or premium payments for healthcare coverage, Concessionaire shall, no later than October 31, 2020, make contributions or premium payments in the same amount and for the same level of coverage as Concessionaire made for the employee in February 2020 for each of the four consecutive calendar months immediately subsequent to the employee’s layoff, furlough, or reduction in hours during which such employee remained laid off, furloughed, or experienced reduced hours (“Health Insurance Contribution”). Concessionaire shall be credited with a month for each of the required four months in which Concessionaire has previously made the above required contributions or payments. Alternatively, if Concessionaire declined relief under the First Letter and has paid the MAG otherwise owed by Concessionaire to TCM for the months of April, May and June 2020, Concessionaire shall receive credit for two (2) months of the Health Insurance Contribution. Any percentage rents/fees already paid to TCM for April, May and June 2020 will be credited towards any MAG owed for the same time period. Concessionaire may (in Concessionaire’s discretion) add a surcharge of up to [**] on concession sales to guests to be applied to the costs of the foregoing contribution requirement, until such time as the cumulative total amount of such surcharge equals the total amount of the Health Insurance Contribution paid by Concessionaire, or if such total amount has not been reached, until September 30, 2021, whichever comes first (“Surcharge Period”); and provided that Concessionaire is making such Health Insurance Contribution on a current basis during the Surcharge Period. However, the actual surcharge received and applied to the Health Insurance Contribution during the Surcharge Period will not be considered to be a part of the gross revenues received during the Surcharge Period when calculating the percentage rent/fees to be paid by Concessionaire to TCM under the Unit Concession Agreement.” TCM shall cause its sub-concessionaires to agree in writing to comply with the provisions of Section 6.a above with respect to such sub-concessionaire’s employees. If any such sub-concessionaire fails to so agree in writing or fails to comply with such obligations, then neither TCM nor such sub-concessionaire shall be entitled to receive the pro-rata share of such abatement, adjustment and deferral benefits allocable to such sub-concessionaire.
Mike Salzman
September 30, 2020
Page 9
7.Compliance With Agreement. TCM acknowledges and agrees that TCM’s right to receive the benefit of any abatement, adjustment and/or deferral of rent or fees set forth herein is absolutely conditioned upon TCM’s full, faithful and punctual performance of its obligations under the Agreement. If TCM defaults in the performance of any of its obligations under the Agreement, such abated, adjusted or deferred rent or fees shall immediately become due and payable in full upon demand by the City, and the City shall have the right to enforce the Agreement as if there were no such abatement, adjustment or deferral. Without limiting the generality of the foregoing, TCM acknowledges and agrees that: (i) TCM shall comply with all applicable City of Los Angeles ordinances, (ii) TCM shall have fully funded its Faithful Performance Guarantee as specified in the Agreement (and without reduction with regard to the temporary MAG abatement or reduction contemplated herein) and acknowledges that the City may draw upon the Faithful Performance Guarantee immediately and without prior notice in the event of a default by TCM under the Agreement, (iii) in the event that the City draws upon the Faithful Performance Guarantee, TCM agrees to replenish the Faithful Performance Guarantee to its full amount immediately upon request by City, and (iv) TCM shall continue to be current with respect to all payment obligations under the Agreement.
8.Subordinate to Applicable Laws. The provisions of this Second Letter are intended to be subject and subordinate to any applicable federal, state or local laws and orders now or hereafter in effect to the extent that the terms of this Second Letter are inconsistent therewith.
9.No Third Party Beneficiaries. Nothing in this Second Letter, whether express or implied, is intended to grant to, or confer upon, any person or entity any rights or remedies under, or by reason of, this Second Letter other than the parties hereto, and no person or entity shall be deemed a third party beneficiary of this Second Letter or any provision hereof; provided however that the health plan or insurer to which contributions or premium payments in Section 6.a are due, may enforce such contributions or premium payments/obligations of TCM in accordance with the terms of the plan or insurance policy. Such enforcement shall not preclude or interfere with the City’s right to take enforcement action. TCM will cause its sub-concessionaires to have the same provision as it applies to such sub-concessionaires.
10.Full Force and Effect. Except as expressly amended and modified as set forth in this Second Letter, the terms and provisions of the Agreement remain the same and in full force and effect.
This Second Letter and any other document necessary for the consummation of the transaction contemplated by this Second Letter may be executed in counterparts, including counterparts that are manually executed and counterparts that are in the form of electronic records and are electronically executed. An electronic signature means a signature that is executed by symbol attached to or logically associate with a record and adopted by a party with the intent to sign such record, including facsimile or e-mail signatures. All executed counterparts shall constitute one amendment, and each counterpart shall be deemed an original.
Mike Salzman
September 30, 2020
Page 10
The parties hereby acknowledge and agree that electronic records and electronic signatures, as well as facsimile signatures, may be used in connection with the execution of this Second Letter and electronic signatures, facsimile signatures or signatures transmitted by electronic mail in so-called PDF format shall be legal and binding and shall have the same full force and effect as if a paper original of this amendment had been delivered that had been signed using a handwritten signature. All parties to this Second Letter (i) agree that an electronic signature, whether digital or encrypted, of a party to this Second Letter is intended to authenticate this writing and to have the same force and effect as a manual signature; (ii) intended to be bound by the signatures (whether original, faxed, or electronic) on any document sent or delivered by facsimile or electronic mail or other electronic means; (iii) are aware that the other party(ies) will rely on such signatures; and, (iv) hereby waive any defenses to the enforcement of the terms of this Second Letter based on the foregoing forms of signature. If this Second Letter has been executed by electronic signature, all parties executing this document are expressly consenting, under the United States Federal Electronic Signatures in Global and National Commerce Act of 2000 (“E-SIGN”) and the California Uniform Electronic Transactions Act (“UETA”) (California Civil Code §1633.1 et seq.), that a signature by fax, e-mail, or other electronic means shall constitute an Electronic Signature to an Electronic Record under both E-SIGN and UETA with respect to this specific transaction.
Mike Salzman
September 30, 2020
Page 11
IN WITNESS WHEREOF, City has caused this Second Letter to be executed on its behalf by the Chief Executive Officer, or his or her designee, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
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APPROVED AS TO FORM: |
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Michael N. Feuer, |
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The undersigned TCM hereby agrees to the foregoing Second Letter:
Date: September 30, 2020 |
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Executive Vice President - Airports |
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Electronic Record and Signature Disclosure created on: 7/31/2020 11:44:06 AM
Parties agreed to: Mike Salzman
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
Pursuant to the Electronic Signatures in Global and National Commerce Act (ESIGN) the Parties hereby expressly agree to the use of certificate-based electronic signature software operated by DocuSign for execution of this agreement/lease. The certificate based electronic signature generated by this software shall have the same legal effect as a handwritten signature and shall be admissible evidence of the Parties’ mutual intent to be legally bound by this agreement. The Parties declare that they have received all information required to be fully aware of the certificate-based electronic signature process, and each Party hereby waives any challenge against the enforceability of this agreement based on the use of such certificate-based electronic signature software.
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.20.4
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CONFIRMED COPY |
BOARD FILE NOS. LAA-8613F LAA-8640D |
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LAX Van Nuys City of Los Angeles Eric Garcetti Board of Airport Sean O. Burton Valeria C. Velasco Gabriel L. Eshaghian Justin Erbacci |
RESOLUTION NO. 27208 |
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BE IT RESOLVED that, on recommendation of Management, the Board of Airport Commissioners approved both the Sixth Amendment to Terminal Commercial Management Concession Agreement LAA-8613 and the Fourth Amendment to Terminal Commercial Management Concession Agreement LAA-8640 with URW Airports, LLC, covering management of the concessions program at Los Angeles International Airport, as referenced in the Board-adopted staff report attached hereto and made part hereof; and |
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BE IT FURTHER RESOLVED that the Board authorized the Chief Executive Officer to execute said Sixth Amendment to Terminal Commercial Management Concession Agreement LAA-8613 and Fourth Amendment to Terminal Commercial Management Concession Agreement LAA-8640, both with URW Airports, LLC, after approval as to form by the City Attorney and approval by the Los Angeles City Council; and BE IT FURTHER RESOLVED that the Board further approved waiver of late fees totaling $87,885.54; and BE IT FURTHER RESOLVED that the Board further approved transfer of not to exceed $1,750,000, for initial non-premise improvement costs to support concessions infrastructure in the Midfield Satellite Concourse, from WBS Element 1.12.19-700 (Midfield Satellite Concourse North) to WBS Element 1.21.17-700 (Non-Premises Improvements) per Board Resolution 27151; and BE IT FURTHER RESOLVED that issuance of permits, leases, agreements, gate and space assignments, and renewals, amendments or extensions thereof, or other entitlements granting use of existing airport facilities or its operations is exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article III, Class 1 (18)(c) of the Los Angeles City CEQA Guidelines; and BE IT FURTHER RESOLVED that actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606. o0o |
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I hereby certify that this Resolution No. 27208 is true and correct, as adopted by the Board of Airport Commissioners at its Regular Meeting held on Thursday, February 18, 2021. |
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/s/ Grace Miguel Grace Miguel ‒ Secretary |
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Approved by Los Angeles City Council on April 7, 2021 |
SUBJECT: |
Approval of the Sixth Amendment to Terminal Commercial Management Concession Agreement (LAA-8613) and Fourth Amendment to Terminal Commercial Management Concession Agreement (LAA-8640) with URW Airports, LLC at Los Angeles International Airport, approval to waive Late Fees, and approval of funds transfer for Non-Premise Improvements |
Approve the Sixth Amendment to Terminal Commercial Management Concession Agreement (LAA-8613) and Fourth Amendment to Terminal Commercial Management Concession Agreement (LAA-8640) with URW Airports, LLC at Los Angeles International Airport; waive late fees totaling $87,885.54; and, transfer funds for Initial Non-Premise Improvement costs to support concessions infrastructure in the Midfield Satellite Concourse, in an amount not to exceed $1.75 Million.
RECOMMENDATIONS:
Management RECOMMENDS that the Board of Airport Commissioners:
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ADOPT the Staff Report. |
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DETERMINE that this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Article III, Class 1 (18)(c) of the Los Angeles City CEQA Guidelines. |
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APPROVE the Sixth Amendment to LAA-8613 and Fourth Amendment to LAA-8640 to the Terminal Commercial Management Concession Agreements with URW Airports, LLC. |
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APPROVE the waiver of late fees totalling $87,885.54. |
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APPROVE transfer of funds in an amount not to exceed $1.75 million for Initial Non-Premise Improvements required for the Midfield Satellite Concourse. |
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FIND that these contracts are exempt from City Charter Sections 317(e)(10) and 732. |
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AUTHORIZE the Chief Executive Officer to execute the Sixth Amendment to LAA-8613 and the Fourth Amendment to LAA-8640 for the Terminal Commercial Management Concession Agreements with URW Airports, LLC, upon approval as to form by the City Attorney and approval of the Los Angeles City Council. |
DISCUSSION:
1. |
Purpose |
The proposed amendments to the Terminal Commercial Management Concession Agreements LAA-8613 and LAA-8640 will provide the ability to make changes to the concessions program managed by the Terminal Commercial Manager to better meet passenger needs and increase revenue to Los Angeles World Airports. The amendments will provide the Chief Executive Officer with authority to adjust premises to improve concession offerings and permit on-line preordering capabilities, which will allow guests to view and order concession offerings from their mobile devices. In addition, the amendment to Agreement LAA-8613 provides authority for up to [**] in Initial Non-Premise Improvements funding to support concession spaces in the Midfield Satellite Concourse.
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Prior Related Actions |
| ● | January 23, 2012 – Board Resolution 24670 |
The Board of Airport Commissioners approved the award of Terminal Commercial Manager Concession Agreement No. LAA-8613 to Westfield Concession Management, LLC for a term of 17-years, comprised of a two-year development period and a 15-year operating period, that required Westfield to develop, lease and manage convenience retail, specialty retail, food and beverage and certain passenger services in Tom Bradley International Terminal (TBIT) and Terminal 2, plus an option to redevelop the Theme Building.
| ● | June 15, 2012 – Board Resolution 24819 |
The Board of Airport Commissioners approved the award of a Terminal Commercial Manager Concession Agreement No. LAA-8640 to Westfield Concession Management, LLC for a term of 17-years, comprised of a two-year development period and a 15-year operating period, that required Westfield Concession Management, LLC to develop, lease and manage convenience retail, specialty retail, food and beverage and certain passenger services in Terminals 1, 3 and 6.
| ● | January 15, 2015 – Board Resolution 25616 |
The Board of Airport Commissioners approved the First Amendment to Agreement No. LAA-8613 to extend the term for premises in TBIT by three years, Terminal 2 for six months, and remove the option to redevelop the Theme Building. On November 19,
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2015, Los Angeles World Airports consented to Terminal Commercial Manager’s name change from Westfield Concession Management, LLC to Westfield Airports, LLC.
| ● | April 21, 2016 – Board Resolution 25935 |
The Board of Airport Commissioners approved the First Amendment to Agreement No. LAA-8640 to extend the term for the premises in Terminal 1 for three years and Terminal 6 for one year and three months.
| ● | April 21, 2016 – Board Resolution 25936 |
The Board of Airport Commissioners approved the Second Amendment to Agreement No. LAA-8613 to extend the term for the premises in Terminal 2 for two years and six months, added the maintenance of Custom Architectural Features, and updated administrative terms.
| ● | October 5, 2017 – Board Resolution 26355 |
The Board of Airport Commissioners approved the Third Amendment to Agreement No. LAA-8613 to add up to 30,000 square feet of concession space in the Midfield Satellite Concourse to the Premises. On November 8, 2018, Los Angeles World Airports) consented to the Terminal Commercial Manager’s name change from Westfield Airports, LLC to URW Airports, LLC.
| ● | April 16, 2020 – Board Resolution 27003 |
The Board of Airport Commissioners approved a rent relief package for the period April to June 2020 that included waiver of the Minimum Annual Guarantee and deferral of percentage rent payments payable in six monthly installments beginning July 1, 2020.
| ● | April 30, 2020 – Board Resolution 27007 |
The Board of Airport Commissioners approved the first amendment to extend Chief Executive Officer Consent to Permitted Use for digital pilot program by one year plus a one-year extension option.
| ● | October 1, 2020 – Resolution 27118 (LAA-8647) |
The Board of Airport Commissioners approved a Second Letter Agreement for a concessions relief program to abate and adjust the Minimum Annual Guarantee through June 30, 2021, and defer storage payments to January 2021, upon meeting of certain conditions for rent relief eligibility.
| ● | November 19, 2020 – Resolution 27151 |
The Board of Airport Commissioners approved transfer of funds previously approved and appropriated to the WBS Element 1.12.19-700 (Midfield Satellite Concourse North) to Commercial Development Division’s account to find alternate means to support the Tenant Program.
3. |
Current Action |
Since 2012, URW Airports, LLC has managed the food and beverage and retail concessions programs in Terminals 1,2,3,6, and the Tom Bradley International Terminal at Los Angeles International Airport, pursuant to two Terminal Commercial Management Concession Agreements (LAA-8613 and LAA-8640). URW Airports, LLC’s responsibilities as the Terminal Commercial Manager include developing, leasing, and managing concession
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operations in these facilities. The Terminal Commercial Manager manages a combination of 134 food and beverage and retail concessions, spread out over 122,000 square feet at Los Angeles International Airport. In calendar year 2019, the Terminal Commercial Management Agreement paid Los Angeles World Airports approximately [**] in revenue.
Over the past eight years, Los Angeles World Airports and URW Airports, LLC staff have worked to improve the concession program and revenue opportunities at Los Angeles International Airport. Several opportunities have been identified to improve the functionality of the program that require amendments to the Terminal Commercial Management Concession Agreements. As described below, the proposed amendments will improve the Terminal Commercial Manager’s ability to adjust the concession programs, with the Los Angeles World Airports Chief Executive Officer’s consent, to meet passenger needs and increase revenue to Los Angeles World Airports, without having to bring an amendment to the Board of Airport Commissioners for each minor adjustment.
Concession Areas:
The proposed amendments will streamline the steps required to customize program offerings by authorizing the Chief Executive Officer to adjust short-term and long-term concession premises within the concession areas delineated in the Terminal Commercial Management Concession Agreements LAA-8613 and LAA-8640. The current process requires both the Board of Airport Commissioners and Los Angeles City Council approve changes to the premises. Allowing the Chief Executive Officer to approve these adjustments will allow Los Angeles World Airports to improve speed to market and allow the concession offerings to be more responsive to terminal operational requirements and guest demands.
Short term agreements of one year or less present an efficient way to introduce new, trendy concepts, and is designed to support small and emerging businesses that may not have sufficient funds to invest in long term infrastructure needs typical for airport concessions. Short term leases will provide turnkey space that will allow new small business vendors with a means to begin operations, without expensive space buildouts. The ability to quickly identify and secure concession spaces will enhance the ability to capture trends and maintain concepts that are fresh and up to date.
Midfield Satellite Concourse Development – Non-Premises Improvements:
On October 2017, Terminal Commercial Management Concession Agreement LAA-8613 was amended to add the Midfield Satellite Concourse to the agreement. As part of this amendment, it was agreed that URW Airports, LLC did not require any funding for Non-Premises Improvements based on the infrastructure development capability of the Turner | PCL, a Joint Venture, design-build contract (DA-4971) and the embedded Tenant Program Allowance funds reserved for future commercial development.
However, due to the protracted development schedule of tenant space within the Midfield Satellite Concourse due to COVID-19, the Turner | PCL Joint Venture was unable to perform this work within the project schedule, so Los Angeles World Airports transferred [**] in unused Tenant Program Allowance funds from DA-4971 to a segregated account for future use by the Los Angeles World Airports Commercial Development Division (Board Resolution No. 27151 approved on November 19, 2020).
The proposed amendment to Terminal Commercial Management Concession Agreement LAA-8613 will provide Los Angeles World Airports with the ability to engage URW Airports, LLC to deliver certain infrastructure improvements in accordance with the Non-Premises
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Improvement provisions of the Terminal Commercial Management Concession Agreement, subject to Board authorization.
As part of this Board action, staff is requesting the transfer of [**] to perform Non-Premises Improvements to support the infrastructure development of concessions storage space in the Midfield Satellite Concourse, including ancillary Non-Premises Improvements related to Midfield Satellite Concourse concessions activation and infrastructure. Staff requests authority to acquire up to [**] in Non-Premises Improvements through cash payments in lieu of rent credits, to eliminate the accrued interest expense and reduction in net asset value. This [**] will be drawn from the [**] in unused Tenant Program Allowance funds that was transferred from the Midfield Satellite Concourse project per the above.
Online Ordering:
In 2018, Los Angeles World Airports initiated a digital pilot program in collaboration with URW Airports, LLC, to assess the impact of digitizing the shopping and dining experience. This pilot was very successful and expanded to the OrderNow (formerly Shop and Dine) application that currently is helping to provide touchless and contactless concessions during the COVID-19 pandemic. Based on results and success of this pilot program, Los Angeles World Airports recommends that URW Airports, LLC contract be expanded to include digital concessions management for URW Airport, LLC managed terminals at Los Angeles International Airport, upon expiration of the Digital Pilot Program.
The proposed amendments to Terminal Commercial Management Concession Agreements LAA-8613 and LAA-8640 will expand the Terminal Commercial Manager’s scope to include operation of a digital market place to allow guests to view and order concession offerings in Terminal Commercial Manager managed terminals on-line through their smart devices. The digital marketplace also provides cost efficiencies for development and maintenance of the digital program, as well as ensures a consistent standard of service. This also will provide a base for future expansion of a digital program through a separate Los Angeles World Airports competitive solicitation for a new vendor to offer in all terminals for airport wide offerings.
Lease Amendment Overview:
The proposed amendments will align the expiration dates of Terminal Commercial Management Concession Agreements LAA-8613 and LAA-8640 for consistency and better long-term planning as shown in the table below. All other terms of the Terminal Commercial Management Concession Agreements LAA-8613 and LAA-8640 remain unchanged.
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LAA-8613 |
Current Terms |
Proposed Terms |
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Term: Commencement Expiration |
March 1, 2012 January 31, 2032 |
No Change – March 1, 2012 January 31, 2034 |
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Premises: (Concession space units) |
Total: Up to 99,672 SF Existing (69,672 SF) plus Midfield Satellite Concourse (up to 30,000 SF) |
No Change |
LAA-8640 |
Current Terms |
Proposed Terms |
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Term: Commencement Expiration |
June 22, 2012 T1: June 30, 2034 T3: June 30, 2031 T6: September 30, 2032 |
No Change – June 22, 2012 T1: No Change T3: June 30, 2034 T6: June 30, 2034 |
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Premises: (Concession space units) |
Total: Up to 69,970 SF |
No Change |
Sole Source Determination:
Los Angeles World Airports determined that a solicitation resulting in the adjustment of premise spaces, use of non-premise space within a Terminal Commercial Manager Area, and digitization of the concessions program mobile ordering platform is not reasonably practicable and compatible with the City’s interest and found that the use of competitive bidding would be undesirable and impractical, consistent with Los Angeles City Charter Sections 371(e)(10) and 372. Streamlining the administrative process and reducing the time required to adjust concession spaces in the terminals will enhance Los Angeles World Airports’ ability to quickly provide the best concession offerings, maximize revenue, and support guest needs. A solicitation process is both time consuming and requires increased staff resources that can be more efficiently used to perform higher revenue generating priorities. The digitization of the URW Airports, LLC concessions program allows Los Angeles World Airports to analyze the impacts of an airport wide program prior to solicitation and full-scale implementation. URW Airports, LLC resources and current Unit Concession Agreement terms allowed for a quick deployment of digital shop and dine options made necessary during the pandemic to further low touch commerce initiatives.
Late Fee Waiver:
In addition to the proposed amendments described above, Los Angeles World Airports staff also requests approval to waive late fess that were imposed pursuant to Terminal Commercial Management Concession Agreement LAA-8613. [**]
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[**]
How this action advances a specific strategic plan goal and objective
This action advances this strategic goal and objective: Sustain a Strong Business: Diversify and grow revenue sources, and manage costs. The amendments to the concession agreements will maximize revenue and improve passenger services. The timely adjustment of concession spaces will allow staff to efficiently provide up to date offerings and will support small business operators. The administrative efficiencies will reduce staffing and operational costs. The digital enhancements will allow Los Angeles World Airports to customize and improve its marketing program.
Action Requested
Staff requests the Board of Airport Commissioners: approve and authorize the Chief Executive Officer to execute the Sixth Amendment to Terminal Commercial Management Concession Agreement LAA-8613 and Fourth Amendment to Terminal Commercial Management Concession Agreement LAA-8640, upon approval as to form by the City Attorney and approval of the Los Angeles City Council; [**] approve funds transfer in an amount not to exceed [**] for Non-Premise Improvements required for the Midfield Satellite Concourse; and, find that these concession agreements are exempt from City Charter Sections 371(e)(10) and 372.
Fiscal Impact
[**]
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4. |
Alternatives Considered |
● |
Take No Action |
Taking no action will result in staff’s inability to improve the concessions program managed by URW Airports, LLC to maximize revenue and efficiently address guest needs by timely adjustment of concession spaces, increased opportunities for small business operators, and enhancement of digital offerings.
APPROPRIATIONS:
Staff requests that funds in the not-to-exceed amount of [**] for the reimbursement of Non-Premises Improvements fees be transferred from WBS Element 1.12.19-700 (Midfield Satellite Concourse North) to WBS Element 1.21.17-700 (Non-Premises Improvements) per Board Resolution 27151.
STANDARD PROVISIONS:
1. |
The issuance of permits, leases, agreements, gate and space assignments, and renewals, amendments or extensions thereof, or other entitlements granting use of existing airport facilities or its operations is exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article III, Class 1 (18) (c) of the Los Angeles City CEQA Guidelines. |
2. |
This proposed document(s) is/are subject to approval as to form by the City Attorney. |
3. |
Actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606. |
4. |
URW Airports, LLC is required by contract to comply with the provisions of the Living Wage Ordinance. |
5. |
(LAA-8613) Procurement Services Division has reviewed this action (File No. 5124) and established the following ACDBE goals: Food/Beverage - 25%; Retail - 20%. URW Airports, LLC proposed 25% ACDBE participation for Food/Beverage and 20% ACDBE participation for Retail. URW Airports, LLC has achieved 29.3% ACDBE participation for Food/Beverage and 29.6% ACDBE participation for Retail, to date. |
(LAA-8640) Procurement Services reviewed this action (File No. 5163) and established the following Airport Concessions Disadvantaged Business Enterprise Program (ACDBE) participation goals: Food/Beverage - 25%; Retail - 20%. URW Airports, LLC proposed 25% ACDBE participation for Food/Beverage and 20% ACDBE participation for Retail. URW Airports, LLC has achieved 32.4% ACDBE participation for Food/Beverage and 25.7% ACDBE participation for Retail, to date.
6. |
URW Airports, LLC is required by contract to comply with the provisions of the Affirmative Action Program. |
7. |
URW Airports, LLC has been assigned Business Tax Registration Certificate number 0002573628-0001-4. |
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8. |
URW Airports, LLC is required by contract to comply with the provisions of the Child Support Obligations Ordinance. |
9. |
URW Airports, LLC has approved insurance documents, in the terms and amounts required, on file with the Los Angeles World Airports. |
10. |
Pursuant to Charter Section 104 (g) staff determined that airport concession agreements are exempt from the provisions of Charter Section 1022 (Use of Independent Contractor). |
11. |
URW Airports, LLC must submit the Contractor Responsibility Program Pledge of Compliance and will comply with the provisions of the Contractor Responsibility Program. |
12. |
URW Airports, LLC must be determined by Public Works, Office of Contract Compliance to be in compliance with the provisions of the Equal Benefits Ordinance, prior to execution of Contract Amendment. |
13. |
URW Airports, LLC is required by contract to comply with the provisions of the First Source Hiring Program for all non-trade Airport jobs. |
14. |
URW Airports, LLC must submit the Bidder Contributions CEC Form 55 and will comply with its provisions. |
15. |
URW Airports, LLC has submitted a signed Labor Peace Agreement and will comply with its provisions. |
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Board File |
FOURTH AMENDMENT TO LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT FOR TERMINALS 1, 3 AND 6 AT LOS ANGELES INTERNATIONAL AIRPORT BETWEEN THE CITY OF LOS ANGELES AND URW AIRPORTS, LLC
This Fourth Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminals 1, 3 and 6 at Los Angeles International Airport, between the City of Los Angeles and URW Airports, LLC (f/k/a Westfield Airports, LLC) (“Fourth Amendment”), is made and entered into this 30 day of April 2021, (“Effective Date of Fourth Amendment”), at Los Angeles, California by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (hereinafter referred to as “City”), acting by order of and through its Board of Airport Commissioners (hereinafter referred to as “Board”) and URW AIRPORTS, LLC (“URW” or “TCM”), a Delaware limited liability company, concerning the amendment of the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminals 1, 3 and 6, LAA-8640, dated June 22, 2012, between the City and TCM.
RECITALS
WHEREAS, on June 22, 2012, City and URW entered into the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminals 1, 3 and 6, LAA-8640 (as amended, the “Agreement”); and
WHEREAS, URW currently occupies space in Terminals 1, 3 and 6 pursuant to the Agreement; and
WHEREAS, a First Amendment to the Agreement was entered into on June 9, 2016 (“First Amendment”); and
WHEREAS, City and URW amended the Agreement by executing a letter dated April 22, 2020 regarding temporary rent relief due to COVID-19 (“Second Amendment”);
WHEREAS, City and URW amended the Agreement by that letter dated September 30, 2020 regarding temporary rent relief due to COVID-19 (“Third Amendment”); 1.2.1TCM Proposals for Additional Concession Space.
WHEREAS, on May 8, 2019 City and URW entered into a “Chief Executive Officer Consent to Permitted Uses” pursuant to Sections 3.4, 3.4.1 and 3.12 of the Agreement, which was amended on October 23, 2020; and
WHEREAS, pursuant to a merger of Westfield America Inc., a Missouri corporation, with and into URW WEA, LLC, a Delaware limited liability company, URW WEA, LLC became legally liable and responsible for all of the liabilities and obligations of Westfield America, Inc., guarantor for the Agreement, by operation of law; and
WHEREAS, the parties hereto desire to amend said Agreement,
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NOW, THEREFORE, the parties hereto, for and in consideration of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties hereto, do mutually agree that the Agreement, BE AMENDED AS FOLLOWS:
Amendment Section 1.Section 1.2.1, “TCM Proposals for Additional Concession Space” of the Agreement is hereby consolidated and amended and restated to read in their entirety as follows:
During the Primary Term of this Agreement, TCM may submit written proposals to the Chief Executive Officer from time to time thereafter requesting that City consider making available to TCM unoccupied or otherwise unreserved space within any Facility for incorporation as a Unit into the Premises under this Agreement as additional concession space for a specific proposed Permitted Use (a “TCM Additional Space Proposal”).1 City shall be under no obligation to consider any such TCM Additional Space Proposal; provided, however, in the event that City decides (in the Chief Executive Officer’s sole discretion) to thereafter make such space identified in such TCM Additional Space Proposal available for the specific Permitted Use identified in such TCM Additional Space Proposal, then City agrees to give TCM written notice of City’s intent to so make such additional concession space available for such purpose. Such written notice by City will define and specify such additional concession space and set forth any additional terms and conditions being proposed by the Chief Executive Officer with respect to the addition of such concession space as a part of the Premises under this Agreement. Following receipt of such written notice, TCM and the Chief Executive Officer shall negotiate in good faith for a period of sixty (60) days to attempt to reach mutually agreeable terms and conditions with respect to such additional concession space. Such 60-day negotiation period may be extended by the Chief Executive Officer in his or her sole discretion. Any agreement regarding such additional concession space to the Premises shall be memorialized in writing, such as by a letter agreement or similar agreement reflecting the addition of any Unit, executed by both parties and approved as to form by City Attorney, which shall reflect the proportionally adjusted Base Rent and incorporate therein the applicable amended exhibit. In the event that TCM and the Chief Executive Officer are unable to reach mutually agreeable terms and conditions within such negotiation period, then TCM shall have no right to such additional concession space, and City shall be free to offer such additional concession space to other concessionaires on such terms and conditions as the Chief Executive Officer deems appropriate or to otherwise use such additional concession space for other purposes as the Chief Executive Officer deems appropriate. TCM acknowledges that the foregoing right to first negotiation set forth in this Section 1.2.2 applies only to the specific additional concession space and the specific Permitted Use that has been previously proposed by TCM in a written TCM Additional Space Proposal submitted to City. Nothing in this Section 1.2.2 shall be construed to require City to negotiate with TCM or otherwise make available to TCM any additional concession space within any Area or elsewhere in the Facilities that is not the subject of a TCM Additional Space Proposal or that is beyond the permitted scope of a TCM Additional Space Proposal, and TCM acknowledges that City may contract directly with present and future concessionaires for such concession space within the Area or Facilities without negotiating with or otherwise offering
1 The “Chief Executive Officer” is the same as the “Executive Director” for purposes of the Agreement.
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such concession space to TCM. Without limiting the generality of the foregoing sentence, nothing in this Section 1.2.2 or in any other provision of this Agreement shall be construed to require City to negotiate with TCM or otherwise make available to TCM any additional concession space within any Area or elsewhere in the Facilities that is being made available by City for use as an Airport-wide Concession, and TCM acknowledges that City may contract directly with present and future Airport-wide Concessionaires for concession space within the Facilities without negotiating with or otherwise offering such concession space to TCM.
Amendment Section 2. The Agreement is hereby amended to add the following section 1.2.2.
1.2.2 Short-Term Concession Space - Sections 1.2.1 of the Agreement does not apply to Short-Term Concession Space, as defined and addressed in Section 3.2.2.
Amendment Section 3. Sections 2.1 and 2.2 of the Agreement are amended as follows:
Amendment Section 3.1. Section 2.1 of the Agreement is hereby amended and restated to read in its entirety as follows:
“2.1 Premises; Units; TCM Common Areas; TCM Storage Premises. The premises which are the subject of this Agreement are those premises (the “Premises”) that are delineated and approved by the Chief Executive Officer in a DIP Approval for an Area and delivered by City to TCM pursuant to a Delivery Notice issued by the Chief Executive Officer as provided in Article I above. No potential Premises location shall be considered a part of the Premises, unless and until such potential Premises location is delineated and approved by the Chief Executive Officer in a DIP Approval for an Area and turned over to TCM pursuant to a Delivery Notice issued by the Chief Executive Officer as provided in Article I above. Such exhibits will be amended by the CEO in accordance with exhibits approved in the DIP Approvals._The Premises will consist of Units, TCM Common Areas, and TCM Storage Premises (all as defined below). For purposes of this Agreement, the term “Unit(s)” means the individual concession spaces within the Premises as delineated in the DIP Approvals. Attached as Exhibit R are the Premises for concession spaces that have been approved by the Chief Executive Officer. Such exhibits will be amended by the CEO in accordance with exhibits approved in the DIP Approvals. For purposes of this Agreement, the term “TCM Common Area(s)” means areas located within the Premises as delineated in the DIP Approvals as common use areas for the general use and convenience of airline passengers and other users of the Facility in which the TCM Common Areas are located, such as food court seating areas and children’s play areas. For purposes of this Agreement, the term “TCM Storage Premises” means areas located within the Premises as delineated in the DIP Approvals as premises for the storage of equipment, inventory or supplies or for office space (if any). For avoidance of doubt, the parties acknowledge that areas within Units used for storage or office use are not TCM Storage Premises, but rather are considered a part of such Units.”
Amendment Section 3.2. Section 2.2 of the Agreement is hereby amended and restated to read in its entirety as follows:
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“2.2 Primary Term. For purposes of this Agreement, the term “Primary Term” shall mean the period of time that TCM shall operate the Premises as the terminal commercial manager hereunder, which period shall commence for any given portion of the Premises a on the Delivery Date for such portion of the Premises and any associated Storage Space within Terminal 1, Terminal 3, and Terminal 6, and shall end as to all portions of the Premises on the Expiration Date (unless the term of this Agreement is sooner terminated in accordance with the provisions of this Agreement). For purposes of this Agreement, the term “Expiration Date” shall mean June 30, 2034. No delay in the processing of any Definitive Improvement Plan or delay in the Delivery Date of any portion of the Premises shall extend the Expiration Date. TCM acknowledges and agrees that TCM has absolutely no rights under this Agreement to extend the Primary Term.”
Amendment Section 3.3. Section 2.2.1 of the Agreement is hereby deleted in its entirety.
Amendment Section 4. Section 3.2 (d) of the Agreement is hereby amended and restated to read in its entirety as follows:
(d) The plan for the marketing of concession opportunities and for the selection of Concessionaires to ensure an open, competitive selection process that provides opportunities for ACDBEs.
Amendment Section 5. The Agreement is hereby amended to add the following to Section 3.2:
(k) Subject to the Laws, TCM shall endeavor to establish a financial program to promote opportunities for small businesses in need of financial assistance to do business in the Airport. The program structure will be mutually agreed upon by the parties, but will likely consist of providing monies to qualifying concessionaires or entering into payment plans for certain monies due to TCM, to assist with the initial buildout of their respective premises, which amounts will be paid back by such concessionaires to TCM over the term of their respective UCAs, along with the applicable interest.
(l) The plan for the pilot program under the “Chief Executive Officer Consent to Permitted Uses” (“Pilot Program”), entered into on May 8, 2019, as amended.
(m) The plan for such Pilot Program for the food & beverage and retail concessions, and any other services under the Agreement. TCM shall not implement such a plan without a prior written agreement between the City and TCM.
(n) The plan for Short-Term Concession Space (concession spaces within the Area or Facility with a term of no more than twenty-four (24) consecutive months and a space of no more than three hundred ( 300 ) square feet).
Amendment Section 6. The following is hereby added as Section 3.2.2 to the Agreement:
3.2.2 Short-Term Concession Space.
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In order to elevate the passenger experience and ensure continued services to the traveling public during the term of this Agreement, the Chief Executive Officer may (but shall have no obligation) to consider making available to TCM certain unoccupied or otherwise unreserved space located within any Area or the Facility for a term of no more than twenty-four (24) consecutive months and with a maximum square footage of three-hundred (300) square feet for each such space (“Short-Term Concession Space”); and to permit TCM to enter into a Unit Concession Agreement with a concessionaire regarding such space (“Short-Term UCA”). For purposes of this Section, each Short-Term Concession Space consists of only one Unit.
3.2.2.1 Procedure, Written Request by TCM and Approval by the Chief Executive Officer. Prior to executing a Short-Term UCA, TCM shall submit a written request to the Chief Executive Officer, requesting that the City consider making available to TCM unoccupied or otherwise unreserved space within any Area or the Facility for incorporation as a Unit into the Premises under this Agreement as additional concession space for the approved term of the Short-Term Concession Space. The written request by TCM shall include the proposed Permitted Use, the total square footage, the concept of the concession that will occupy the space, the length of the agreement between the TCM and concessionaire, a description of the method used to select the concessionaire and any other information required by the Chief Executive Officer. Any agreement regarding such Short-Term Concession Space between TCM and the City shall be memorialized by written agreement, such as a letter agreement or similar agreement, executed by both parties and approved as to form by City Attorney, which shall reflect the addition of the Short-term Concession Space and additional information, including but not limited to, rent and the term thereof, and incorporate therein the applicable amended exhibit.
(a) In the event TCM brings utilities or other supporting infrastructure to approved Short-Term Concession Space, at the discretion of the City, (i) the City shall acquire improvements from TCM in accordance with the terms of the Agreement or through a separate reimbursement agreement that may require Board and/or City Council approval; or (ii) the funding required to bring said utilities or other supporting infrastructure shall be considered investment in Premises Improvements for purposes of the Mid-Term Refurbishment. Any and all costs allocated to the Mid-Term Refurbishment are subject to the prior written approval of the Chief Executive Officer. City shall have all rights to the ownership of the permanent improvements or supporting infrastructure within any Short-Term Concession Space in accordance with Section 7.16 (Ownership of Improvements). TCM shall be responsible for the removal of personal property from Short-Term Concession Space unless City requests otherwise in writing.
(b) TCM shall include all revenue from Short-Term Concession Space as TCM Revenues (as defined in the Agreement).
(c) The terms applicable to the Premises under this Agreement are applicable to the Short-Term Concession Space, except as otherwise provided in this Section 3.2.2 or elsewhere in the Agreement, and except as follows:
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(i) |
Section 1.1 (“TCM’s Obligations During Pre-Term Development Phase”) and any other sections or provisions applicable to such TCM’s Obligations During Pre-Term Development Phase; |
(ii) |
Section 1.11 (“High Priority Area Late Performance Fees”) and any other sections or provisions applicable to such High Priority Area Late Performance Fees; |
(iii) |
Section 3.14 (“Storage Space”) and any other sections or provisions applicable to such Storage Space; |
(iv) |
Section 7.6 (“Mid-Term Refurbishment”) and any other sections or provisions applicable to such Mid-Term Refurbishment; and |
(v) |
Article IX (“Termination for Convenience”) and any other sections or provisions applicable such Termination for Convenience. |
3.2.2.2Short-Term UCA. The Short-Term UCAs may be entered into in accordance with goals outlined in the Business and Operation Plan and the selection of concessionaires shall be made through a process for Concessionaire selection described in the Business Operations Plan referenced in Section 3.2 (d) of this Agreement and submitted by TCM for such Short-Term Concession Space. Each and every Short-Term UCA is subject to the prior written approval of the Chief Executive Officer (“Consent to Short-Term UCA”), prior to its execution by TCM. The specific Permitted Use (as defined in Section 3.4 of the Agreement) for each Unit within the Premises is subject to the written approval of the Chief Executive Officer, such approval not to be unreasonably withheld, conditioned or delayed. The process for obtaining such approvals is to be set forth in the Business and Operations Plan and under Section 3.2.2.1 of the Agreement. Promptly following the Effective Date of Fourth Amendment, TCM shall develop the form of Short-Term UCA and submit such form the Chief Executive Officer for review and approval. Any changes to the form of Short-Term UCA shall also be subject to the Chief Executive Officer’s review and approval, and the Chief Executive Officer may require reasonable changes to such form from time to time during the term of this Agreement. Unless otherwise provided in this Section 3.2.2, the provisions applicable to Unit Concession Agreements under Section 3.3 are applicable to a Short-Term UCA, except for the following: 3.3.5, 3.3.6 and 3.3.7.
3.2.2.3Term of Short-Term UCA; City’s Right to Terminate and Termination or Expiration.
(a) No Short-Term UCA shall exceed the term or square footage of the specific Short-Term Concession Space provided to TCM by City. In any case, no Short-Term UCA may go beyond the expiration date specified in the Agreement for the specific terminal in which the Short-Term Concession space is located.
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(b) All Short-Term UCAs shall be subject and subordinate to the rights of City under this Agreement.
(c) The City has the right to terminate any Short-Term Concession Space or Short-Term UCA, at any time, and for any reason, prior to the expiration of the term for such Short-Term Concession Space or Short-Term UCA upon sixty (60) days’ prior written notice to TCM. TCM understands and agrees, and shall cause its Concessionaires, to vacate such Short-Term Concession Space no later than the termination date. TCM further understands and agrees that neither TCM nor a Concessionaire has any right to occupy such Short-Term Concession Space beyond the termination date and that the City has the right to take immediate possession of such space upon the termination date, whether or not such space is with a Concessionaire under a Short-Term UCA.
(d) The early termination or expiration of the Short-Term Concession Space to TCM shall automatically terminate any Short-Term UCA and Consent to Short-Term UCA (as defined in this section) on the date of such termination or expiration.
(e) No Concessionaire shall assign or otherwise transfer all or any of its interest under a Short-Term UCA, without the Chief Executive Officer’s prior written consent.
(f) TCM shall include the provisions of this Section 3.2.2.3 in the Short-Term UCA.
Amendment Section 7. The Agreement is hereby amended to add the following section – 3.2.3:
3.2.3 City Events. The parties acknowledge and agree that, from time to time, City will host certain global or nationwide events, including but not limited to the World Cup for soccer, and City has or may enter into agreements in connection therewith that affect the concessions at the Airport, provided that if any City Event has a material adverse impact on TCM’s rights under the Agreement (including TCM’s right to collect TCM Revenue’s from Concessionaires thereunder), then upon TCM’s written notice to City, TCM and City shall engage in good faith negotiations to address those impacts.
Amendment Section 8. Section 4.1.2 of the Agreement is hereby amended and restated to read in its entirety as follows:
4.1.2 [**]
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[**]
Amendment Section 9. [**]
Amendment Section 10. [**]
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4.1.2.3 [**]
Amendment Section 11. Section 5.11.1 of the Agreement is hereby amended to add the following as the last sentence to the section:
TCM acknowledges that “Laws” includes the California Consumer Privacy Act, as amended, or as may be hereafter be modified, amended or supplemented, and that such acknowledgement does not in any way limit the inclusion of any and all other Laws and the application of such Laws to TCM and TCM Parties.
Amendment Section 12. Section 6.1 of the Agreement is hereby amended and restated to read in their entirety as follows, but such amendment and restatement in no way limits, amends or excuses the continuing obligations of TCM and TCM Parties under Section 5.11 (“Compliance with Laws”) to fully and faithfully observe and comply with all present and future Laws:
6.1 Compliance with Department of Transportation (DOT). This Agreement is subject to the requirements of the U.S. Department of Transportation’s regulations, 49 CFR Part 23. TCM agrees that it will not discriminate against any business owner because of the owner’s race, color, national origin, or sex in connection with the award or performance of this Agreement, any concession agreement, management contract, or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR Part 23. TCM agrees to include the above statements in any subsequent concession agreement or contract covered by 49 CFR part 23, that it enters and cause those businesses to similarly include the statements in further agreements.
City has established an Airport Concession Disadvantaged Business Enterprise Program in accordance with regulations of the U.S. Department of Transportation, 49 CFR, Part 23 (“ACDBE Rules”). Additionally, City strictly prohibits all unlawful discrimination and preferential treatment in contracting, subcontracting and purchasing under this Agreement (“Non-Discrimination Policy”).
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TCM shall comply with 49 Code of Federal Regulations, Part 23, ACDBE Rules and the Non-Discrimination Policy, as amended from time to time, and shall not discriminate against any business owner because of the owner’s race, color, national origin, or sex in connection with its performance under this Agreement or in contracting, sub-contracting or purchasing in connection with this Agreement. TCM shall cooperate with City in City’s program of recruiting, training, providing technical assistance and holding workshops to ensure that contracting, subcontracting and purchasing opportunities available under this Agreement are accessible and available to all qualified businesses owners, including “Airport Concession Disadvantaged Business Enterprises” (“ACDBEs”) as defined in the ACDBE Rules. In order to provide a fair opportunity for ACDBE participation, TCM shall make good faith efforts, within the meaning of the ACDBE Rules, to provide for a level of ACDBE participation in the concession operations (based on commercially useful function and distinct, clearly defined portion of the work) by Concessionaires contemplated by this Agreement equal to or greater than twenty percent (20%) for retail and service concessions and twenty five percent (25%) for food and beverage concessions. ACDBE participation will be calculated in accordance with the U.S. Department of Transportation’s ACBDE regulation, 49 CFR § 23.55. Failure to comply with the ACDBE Rules, Non-Discrimination Policy or 49 CFR Parts 23 and 26, referenced herein, shall constitute a material breach of this Agreement.
Amendment Section 13. Sections 6.2 and 6.3 of the Agreement are hereby amended and restated to read in their entirety as follows, but such amendment and restatement in no way limits, amends or excuses the continuing obligations of TCM and TCM Parties under Section 5.11 (“Compliance with Laws”) to fully and faithfully observe and comply with all present and future Laws:
6.2 Substitutions/Terminations/Additions. If specific ACDBEs are listed to perform the work and supply the materials, TCM shall utilize the specific ACDBEs listed on the Subcontractor Participation Plan to perform the work and supply the materials for which each is listed (“Listed ACDBE”). If a substitution or termination of any Listed ACDBE becomes necessary, TCM shall comply with all requirements of the ACDBE Rules and 49 CFR Part 26.53(f) and (g), including without limitation, performing good faith efforts to find another ACDBE subconcessionaire to substitute for the original ACDBE and obtaining written approval from the ACDBE Liaison Officer or designee (collectively (“ACDBELO”) prior to such substitution or termination, and TCM will obtain written approval for any addition of an ACDBE. If a Listed ACDBE is terminated without the prior required consent, TCM shall not be entitled to any payment for work or material unless it is performed or supplied by the listed ACDBE. Further, if an ACDBE is terminated pursuant to this provision and 49 CFR Part 26.53(f) and (g), or fails to complete its contract for any reason, then TCM shall provide the ACDBELO with evidence satisfactory to the ACDBELO that TCM has made good faith efforts to substitute the terminated ACDBE with another ACDBE. If TCM fails to make good faith efforts, as determined by the ACDBELO, City shall have the right to cancel or terminate this Agreement in its entirety and all rights ensuing therefrom upon giving thirty (30) days written notice to TCM.
6.3 Monthly Report. In order to assure compliance with the Non-Discrimination Policy and the federal requirements for the ACDBE Program, TCM shall submit, on a monthly basis, Subcontractor Utilization Form listing the ACDBE and non-ACDBE subconcessionaires,
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including the gross receipts related to ACDBE and non-ACDBE participations and/or perform a data entry submission into the Business Diversity Compliance Management System (also known as B2GNOW) or other reporting method and business enterprise compliance monitoring system selected by City along with its monthly gross revenue report to City. TCM shall submit monthly reports in the format, as described above or as required by the CEO and such other information as may be requested by the CEO to ensure compliance with the ACDBE Rules.
Amendment Section 14. The Agreement is hereby amended to add the following Section 6.4:
6.4 Compliance and Remedy. TCM shall carry out applicable requirements of 49 CFR Part 23 in the award and administration of agreements covered by Part 23. Failure by the TCM to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as the City deems appropriate and as may be provided in the ACDBE Rules, which may include but is not limited to: (a) withholding monthly progress payments; (b) assessing sanctions; (c) liquidated damages; and/or (d) disqualifying the TCM from future bidding as non-responsible.
Amendment Section 15. The Agreement is hereby amended to add the following Section 7.6.3:
7.6.3 Content of Mid-Term Refurbishment. As part of the “Mid-Term Refurbishment”, TCM may include, without limitation, investment in Non-Premises Improvements and Premises Improvements, digital initiatives and service enhancements in the “Mid-Term Refurbishment Plan” for consideration by the City.
Amendment Section 16. Section 7.12 of the Agreement is hereby amended and restated to read in its entirety as follows:
“7.12 Improvement Payment and Performance Bond. In connection with the Initial Non-Premises Improvements, TCM Initial Premises Improvements, the Mid-Term Refurbishment and any other Alterations by TCM, TCM shall furnish, at its sole cost and expense, payment and performance bonds in the principal sum of the amount of the work of improvement proposed by TCM. In connection with the Concessionaire Initial Premises Improvements, the Mid-Term Refurbishment and any other Alterations by Concessionaires, TCM shall cause its Concessionaires to furnish, at their respective sole cost and expense, payment and performance bonds in the principal sum of the amount of the work of improvement proposed by each such Concessionaire. TCM shall comply with (and shall cause its Concessionaires to comply with) the provisions of California Civil Code Sections 3235 to 3242 or Section 3247 to 3252, as applicable to any such bond, by filing the original contract and any modifications thereto in the office of the Los Angeles County Recorder, together with the bond specified therein, and a conformed copy of such bond, filed for record as aforesaid, shall be furnished by TCM or its Concessionaires to City. If such work is being performed pursuant to a DIP Approval or a CIP Approval, TCM shall furnish such payment and performance bonds no later than the date set forth in the DIP Approval or the CIP Approval, as the case may be. If such work is not being performed pursuant to a DIP Approval or a CIP Approval or if no time is specified in the DIP Approval or the CIP Approval, such payment and performance bonds shall be furnished no later than ten (10) days prior to the commencement of such work.
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The payment and performance bonds shall be in substantially the same form as that of Exhibit F attached hereto (or such other form as may be reasonably prescribed from time to time by the City Attorney), be issued by a surety company satisfactory to Executive Director, and authorized and licensed to transact business in the State of California and be for the full amount stated above with the City of Los Angeles, Department of Airports, as obligee, and shall guarantee the full, faithful and satisfactory payment and performance by TCM or its Concessionaires, as the case may be, of their respective obligations to construct and install the aforementioned improvements, and shall guarantee the payment for all materials, provisions, supplies, and equipment used in, on, for, or about the performance of TCM’s (or its Concessionaires’) works of improvement or labor done thereon of any kind, and shall protect City from any liability, losses, or damages arising therefrom.”
Amendment Section 17. The Agreement is hereby amended to add the following as the second and last paragraphs in Section 13.2:
In addition to (and not in lieu of) any indemnification and other protective provisions for the benefit of City set forth in the Agreement, TCM shall defend, indemnify and hold harmless City and City Agents from and against any and all Claims arising out of or in connection with the UCA and/or Short-Term UCA, except to the extent that any such Claims are due to the sole negligence or intentional misconduct of City or any City Agents. Without limiting the generality of the foregoing, TCM agrees to protect, defend in any and all courts and regulatory authorities in the world, indemnify, keep and hold harmless City and City Agents from and against any and all Claims arising out of (1) any threatened, alleged or actual claim that the end product and services provided by TCM or the TCM Parties violates any patent, copyright, trademark, trade secret, know-how, proprietary right, other forms of intellectual property right, moral right, right of publicity, privacy, or any other rights of any third party anywhere in the world; and (2) any breach in cyber security and data privacy related to the Agreement, Unit Concession Agreement and Short-Term UCA, irrespective of intent, however the breach takes place, whoever causes the breach, and wherever the breach originates from in the universe. TCM agrees to, and shall, pay all damages, settlements, expenses and costs, including remedial costs (e.g., ID theft monitoring expenses) to assist injured City users, costs of investigation, court costs and attorney’s fees, and all other costs and damages sustained or incurred by City arising out of, or relating to, the matters set forth above. To the extent that there is a conflict between the provisions herein and the provisions in the “Chief Executive Officer Consent to Permitted Uses, LAA-8613 and LAA-8640” (“CEO Consent”), the provisions of the CEO Consent shall supersede as it relates to the “Pilot Program” as described in the CEO Consent.
In TCM’s defense of the City under this Section, negotiation, compromise, and settlement of any action, the City shall retain discretion in and control of the litigation, negotiation, compromise, settlement, and appeals therefrom, as required by the Los Angeles City Charter, particularly Article II, Sections 271, 272 and 273 thereof. The provisions of this Section shall survive the expiration or termination of the Agreement.
Amendment Section 18. Section 16.26 of the Agreement is hereby amended and restated to read in its entirety as follows, but such amendment and restatement in no way limits, amends or excuses the continuing obligations of TCM and TCM Parties under Section 5.11 (“Compliance with Laws”) to fully and faithfully observe and comply with all present and future Laws:
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16.26 Alternative Fuel Vehicle Requirement Program.
16.26.1 TCM shall comply and shall cause its Concessionaires to comply with the provisions of the alternative fuel vehicle requirement program (the “Alternative Fuel Vehicle Requirement Program”). The rules, regulations, and requirements of the Alternative Fuel Vehicle Program are attached as Exhibit P-1 and made a material term of this Agreement. Concessionaire shall complete and submit to City the vehicle information required on the reporting form accessible online at https://sbo.lawa.org/altfuel on a semi-annual basis. The reporting form may be amended from time to time by City.
16.26.2 TCM acknowledges and shall notify Concessionaire that compliance with the Alternative Fuel Vehicle Requirement Program does not relieve TCM or Concessionaire from complying with any and all applicable federal, state and local regulations.
Amendment Section 19. Section 16.18, “Living Wage Ordinance General Provisions”, of the Agreement is hereby amended and restated to read in its entirety as follows, but such amendment and restatement in no way limits, amends or excuses the continuing obligations of TCM and TCM Parties under Section 5.11 (“Compliance with Laws”) to fully and faithfully observe and comply with all present and future Laws:
16.18 General Provisions; Living Wage Policy. TCM shall comply with the Living Wage Ordinance (“LWO”), Los Angeles Administrative Code Section 10.37 et seq., as amended from time to time, a copy of which is attached hereto for convenience as Exhibit “K-1.” Under the provisions of Section 10.37.6(c) of the Los Angeles Administrative Code, violation of the LWO shall constitute a material breach of the Agreement and City shall be entitled to terminate this Agreement and otherwise pursue legal remedies that may be available, including those set forth in the LWO, if City determines that TCM violated the provisions of the LWO. TCM further agrees that it shall comply with federal law proscribing retaliation for union organizing. Any subcontract agreement entered into by TCM for work to be performed under this Agreement must include an identical provision.
Amendment Section 20. Section 16.18.2, “Compliance; Termination Provisions and Other Remedies: Living Wage Policy”, of the Agreement is hereby amended and restated to read in its entirety as follows, but such amendment and restatement in no way limits, amends or excuses the continuing obligations of TCM and TCM Parties under Section 5.11 (“Compliance with Laws”) to fully and faithfully observe and comply with all present and future Laws:
16.18.2 Compliance; Termination Provisions and Other Remedies: Living Wage Policy. If TCM and its Concessionaires are not initially exempt from the LWO, TCM shall comply, and shall require its Concessionaires to comply, with all of the provisions of the LWO, including payment to employees at the minimum wage rates, effective on the execution date of this Agreement. If TCM is initially exempt from the LWO, but later no longer qualifies for any
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exemption, TCM shall, at such time as TCM is no longer exempt, comply with the provisions of the LWO. Under the provisions of Section 10.37.6(c) of the Los Angeles Administrative Code, violation of the LWO shall constitute a material breach of this Agreement and City shall be entitled to terminate this Agreement and otherwise pursue legal remedies that may be available, including those set forth in the LWO, if City determines that TCM violated the provisions of the LWO. The procedures and time periods provided in the LWO are in lieu of the procedures and time periods provided elsewhere in this Agreement. Nothing in this Agreement shall be construed to extend the time periods or limit the remedies provided in the LWO.
Amendment Section 21. Section 16.18.3, “Subcontractor Compliance”, of the Agreement is hereby amended and restated to read in its entirety as follows, but such amendment and restatement in no way limits, amends or excuses the continuing obligations of TCM and TCM Parties under Section 5.11 (“Compliance with Laws”) to fully and faithfully observe and comply with all present and future Laws:
16.18.3 Subcontractor Compliance. TCM agrees to include, in every subcontract or Unit Concession Agreement covering City property entered into between TCM and any subcontractor or Concessionaire, a provision pursuant to which such subcontractor or Concessionaire (A) agrees to comply with the Living Wage Ordinance and the Worker Retention Ordinance with respect to City’s property; (B) agrees not to retaliate against any employee lawfully asserting noncompliance on the part of the subcontractor or Concessionaire with the provisions of either the Living Wage Ordinance or the Worker Retention Ordinance; and (C) agrees and acknowledges that City, as the intended third-party beneficiary of this provision may (i) enforce the Living Wage Ordinance and Worker Retention Ordinance directly against the subcontractor or Concessionaire with respect to City property, and (ii) invoke, directly against the subcontractor or Concessionaire with respect to City property, all the rights and remedies available to City under Section 10.37.6 of the Living Wage Ordinance and Section 10.36.3 of the Worker Retention Ordinance, as same may be amended from time to time.
Amendment Section 22. Section 16.19, “Service Contract Worker Retention”, of the Agreement is hereby amended and restated to read in its entirety as follows, but such amendment and restatement in no way limits, amends or excuses the continuing obligations of TCM and TCM Parties under Section 5.11 (“Compliance with Laws”) to fully and faithfully observe and comply with all present and future Laws:
16.19 Worker Retention Ordinance. TCM shall comply with the Worker Retention Ordinance (“WRO”), LAAC Section 10.36 et seq., as amended from time to time. Any subcontract entered into by TCM for work to be performed under this Agreement must include an identical provision. Under the provisions of Section 10.36.3(c) of the Los Angeles Administrative Code, City has the authority, under appropriate circumstances, to terminate the Agreement and otherwise pursue legal remedies that may be available if City determines that the subject contractor violated the provisions of the WRO.
Amendment Section 23. TCM’s Pledge of Compliance regarding the Contractor Responsibility Program is attached hereto as Exhibit N-1.
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Amendment Section 24. The following is hereby added as Section 16.48 to the Agreement:
16.48 California Civil Code Section 1938 Disclosure; TCM’s Responsibility for Required Repairs or Alterations. The Premises have not undergone an inspection by a Certified Access Specialist (CASp). The following statement is hereby included in this Agreement:
“A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.”
The parties hereby mutually agree that any inspection by a CASp shall be performed at TCM’s sole cost and expense and at a time reasonably satisfactory to City. The parties hereby mutually agree that any and all repairs or alterations necessary to correct violations of construction-related accessibility standards within the Premises and the Premises shall be performed by TCM at TCM’s sole cost and expense. The parties acknowledge and agree that, notwithstanding any presumption set forth in California Civil Code Section 1938, TCM shall be solely responsible and liable to make any and all repairs or alterations necessary to correct violations of construction-related accessibility standards in any CASp inspection report. TCM hereby agrees that, to the fullest extent permitted by law, TCM shall treat any inspection by a CASp and the CASp inspection report as strictly confidential and shall not disclose the content of any such inspection report, except as necessary for TCM to complete repairs and corrections of violations of construction-related accessibility standards. TCM acknowledges that TCM’s obligations set forth in this Section are in addition to (and not in lieu of) TCM’s obligations regarding compliance with the ADA and construction related accessibility standards set forth elsewhere in this Agreement (including, without limitation, Section 5.11 and 16.10, and Articles VII and VIII), and nothing in this Section shall be construed to limit or diminish TCM’s obligations set forth elsewhere in this Agreement.
Amendment Section 25. The following is hereby added as Section 16.49 to the Agreement:
16.49 Iran Contracting Act, 2010. In accordance with California Public Contract Code Sections 2200-2208, all persons entering into or renewing contracts with City for goods or services estimated at one million ($1,000,000) or more are required to complete, sign and submit the Iran Contracting Act of 2010 Compliance Affidavit attached herein as Exhibit Q. TCM’s compliance with the terms of the Iran Contracting Act of 2010 is made a requirement and condition of the Agreement.
Amendment Section 26. The following is hereby added as Section 16.50 to the Agreement:
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16.50 Prompt Payment. Unless TCM and subcontractor have agreed otherwise, TCM shall pay to subcontractor not later than seven (7) days after receipt of each payment, the respective amounts allowed the TCM on account of the work performed by the subcontractor, to the extent of each subcontractor’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a payment from TCM to a subcontractor, TCM may withhold no more than 150 percent of the disputed amount. TCM shall include the following in its Unit Concession Agreements and Short-Term UCAs:
“Prompt Payment. Unless Concessionaire and subcontractor have agreed otherwise, Concessionaire or subcontractor shall pay to any subcontractor, not later than seven (7) days after receipt of each payment, the respective amounts allowed the Concessionaire on account of the work performed by the subcontractors, to the extent of each subcontractor’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a payment from the Concessionaire or subcontractor, the Concessionaire or subcontractor to a subcontractor, the Concessionaire or subcontractor may withhold no more than One Hundred Fifty Percent (150%) of the disputed amount. Concessionaire shall include this provision in all of its subcontracts.”
Amendment Section 27. Due to the aforementioned merger between Westfield America Inc. and URW WEA, LLC, URW WEA, LLC is the successor to Westfield America, Inc., and therefore the guarantor under the Guaranty Agreement (Exhibit “D” of the Agreement) by operation of law. Accordingly, the contact information and address for written notices to the Guarantor in section 15 on pages 5 and 6 of the Guaranty Agreement are hereby amended to read in their entirety as follows:
Written notices to Guarantor hereunder shall be sent and addressed to:
URW WEA, LLC
c/o URW Airports, LLC
2049 Century Park E 42nd Fl
Los Angeles, CA 90067
ATTN: Office of Legal Counsel
or to such other address as Guarantor may designate by written notice to City.
Amendment Section 28. The “Basic Information” section of the Agreement regarding “TCM’s Address” is hereby amended and restated to read in its entirety as follows:
All notices sent to TCM under the TCM Agreement shall be sent to:
URW Airports, LLC
2049 Century Park East, 40th Floor
Los Angeles, California 90067
Attention: Office of Legal Counsel
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All notices sent to TCM under the TCM Agreement shall be sent to the above address, with copies to:
URW Airports, LLC
2049 Century Park East, 40th Floor
Los Angeles, California 90067
Attention: Executive Vice President, Airports (Mike Salzman)
Amendment Section 29. The Basic Information of the Agreement is hereby amended and restated to conform with the provisions of this Fourth Amendment, to the extent that the provisions in the Basic Information have been modified by the provisions of this Fourth Amendment.
Amendment Section 30. The parties hereby represent and covenant to the other, to the best of their knowledge, without independent inquiry, as follows: (1) neither party is in default in the performance of any of the terms or provisions of the Agreement; (2) neither party has nor claims any setoffs or credits against the payment of Rent or other amounts payable to the other under the Agreement; and (3) the parties shall be entitled to rely on the accuracy of the foregoing representation and covenants, and each party hereby releases the other from any claims relating to the foregoing matters.
Amendment Section 31. TCM hereby re-certifies all of its representations and warranties under Section 16.42 of the Agreement, including all of its subsections.
Amendment Section 32. Except as specifically provided herein, this Fourth Amendment shall not in any manner alter, change, modify, or affect any of the rights, privileges, duties, or obligations of either of the parties hereto, under, or by reason of said Agreement, as amended.
Amendment Section 33. This Fourth Amendment and any other document necessary for the consummation of the transaction contemplated by this Fourth Amendment may be executed in counterparts, including counterparts that are manually executed and counterparts that are in the form of electronic records and are electronically executed. An electronic signature means a signature that is executed by symbol attached to or logically associate with a record and adopted by a party with the intent to sign such record, including facsimile or e-mail signatures. All executed counterparts shall constitute one amendment, and each counterpart shall be deemed an original. The parties hereby acknowledge and agree that electronic records and electronic signatures, as well as facsimile signatures, may be used in connection with the execution of this Fourth Amendment and electronic signatures, facsimile signatures or signatures transmitted by electronic mail in so-called PDF format shall be legal and binding and shall have the same full force and effect as if a paper original of this amendment had been delivered that had been signed using a handwritten signature. All parties to this Fourth Amendment (i) agree that an electronic signature, whether digital or encrypted, of a party to this Fourth Amendment is intended to authenticate this writing and to have the same force and effect as a manual signature; (ii) intended to be bound by the signatures (whether original, faxed, or electronic) on any document sent or delivered by facsimile or electronic mail or other electronic means; (iii) are aware that the other party(ies) will rely on such signatures; and, (iv) hereby waive any defenses to the enforcement of the terms of this Fourth Amendment based on the foregoing forms of signature.
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If this Fourth Amendment has been executed by electronic signature, all parties executing this document are expressly consenting, under the United States Federal Electronic Signatures in Global and National Commerce Act of 2000 (“E-SIGN”) and the California Uniform Electronic Transactions Act (“UETA”) (California Civil Code §1633.1 et seq.), that a signature by fax, e-mail, or other electronic means shall constitute an Electronic Signature to an Electronic Record under both E-SIGN and UETA with respect to this specific transaction.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, City has caused this Fourth Amendment to be executed on its behalf by the Chief Executive Officer, or his or her authorized signatory, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
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Approved as to form: |
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CITY OF LOS ANGELES |
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MICHAEL N. FEUER, |
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City Attorney |
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Chief Executive Officer |
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/s/ Michael N. Feuer |
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City of Los Angeles, Department of Airports |
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Deputy/Assistant City Attorney |
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04/29/2021 |
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/s/ Tatiana Starostina |
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Chief Financial Officer |
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URW AIRPORTS, LLC |
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URW AIRPORTS, LLC |
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a Delaware limited liability company |
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a Delaware limited liability company |
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By: |
/s/ Dan Hough |
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By: |
/s/ Andrea Kahn |
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Signature |
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Dan Hough |
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Andrea Kahn |
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Vice President - Airport Development |
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Assistant Secretary |
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(SIGNATURE PAGE FOR GUARANTOR CONTINUES)
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ACKNOWLEDGEMENT OF GUARANTOR
The undersigned, URW WEA LLC, a Delaware limited liability company (herein, “Guarantor”), who is the successor by merger to Westfield America, Inc., a Missouri corporation, hereby represents, acknowledges, and agrees as follows: (1) Guarantor has reviewed the foregoing Fourth Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminals 1, 3 and 6 at Los Angeles International Airport, between the City of Los Angeles and URW Airports, LLC (f/k/a Westfield Airports, LLC) (“Fourth Amendment”); (2) Guarantor is the guarantor of TCM’s obligations under the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminals 1, 3 and 6 at Los Angeles International Airport, between the City of Los Angeles and URW Airports, LLC (f/k/a Westfield Airports, LLC), LAA-8640, as amended (“TCM Agreement”), pursuant to that certain Guaranty Agreement executed concurrently with the execution of the TCM Agreement (the “Guaranty”); (3) Guarantor approves of TCM’s execution of the Fourth Amendment and agrees with its terms; and (4) the Guaranty is hereby reaffirmed, and the Guaranty is and remains in full force and effect and continues to guarantee the prompt payment and performance by TCM of all of the terms of the TCM Agreement, as amended. This Acknowledgement of Guarantor has been executed as of the date of execution of the Fourth Amendment by TCM.
“GUARANTOR” |
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URW WEA LLC |
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URW WEA LLC |
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a Delaware limited liability company |
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a Delaware limited liability company |
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/s/ John Kim |
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/s/ Jonathan Bauman |
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John Kim |
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Jonathan Bauman |
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Assistant Secretary |
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Electronic Record and Signature Disclosure created on: 7/31/2020 11:44:06 AM
Parties agreed to: Dan Hough, John Kim, Jonathan Bauman
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
Pursuant to the Electronic Signatures in Global and National Commerce Act (ESIGN) the Parties hereby expressly agree to the use of certificate-based electronic signature software operated by DocuSign for execution of this agreement/lease. The certificate based electronic signature generated by this software shall have the same legal effect as a handwritten signature and shall be admissible evidence of the Parties’ mutual intent to be legally bound by this agreement. The Parties declare that they have received all information required to be fully aware of the certificate-based electronic signature process, and each Party hereby waives any challenge against the enforceability of this agreement based on the use of such certificate-based electronic signature software.
CHAPTER 1, ARTICLE 11
LIVING WAGE
Section
10.37 |
Legislative Findings. |
10.37.1 |
Definitions. |
10.37.2 |
Payment of Minimum Compensation to Employees. |
10.37.3 |
Health Benefits. |
10.37.4 |
Employer Reporting and Notification Requirements. |
10.37.5 |
Retaliation Prohibited. |
10.37.6 |
Enforcement. |
10.37.7 |
Administration. |
10.37.8 |
City is a Third Party Beneficiary of Contracts Between an Employer and Subcontractor for Purposes of Enforcement. |
10.37.9 |
Coexistence with Other Available Relief for Specific Deprivations of Protected Rights. |
10.37.10 |
Expenditures Covered. |
10.37.11 |
Timing of Application. |
10.37.12 |
Express Supersession by Collective Bargaining Agreement. |
10.37.13 |
Liberal Interpretation of Coverage; Rebuttable Presumption of Coverage. |
10.37.14 |
Contracts, Employers and Employees Not Subject to this Article. |
10.37.15 |
Exemptions. |
10.37.16 |
Severability. |
Sec. 10.37. Legislative Findings.
The City awards many contracts to private firms to provide services to the public and to City government. Many lessees or licensees of City property perform services that affect the proprietary interests of City government in that their performance impacts the success of City operations. The City also provides financial assistance and funding to other firms for the purpose of economic development or job growth. The City expends grant funds under programs created by the federal and state governments. These expenditures serve to promote the goals established for the grant programs and for similar goals of the City. The City intends that the policies underlying this article serve to guide the expenditure of such funds to the extent allowed by the laws under which such grant programs are established.
Experience indicates that procurement by contract of services all too often has resulted in the payment by service
contractors to their employees of wages at or slightly above the minimum required by federal and state minimum wage laws. The minimal compensation tends to inhibit the quantity and quality of services rendered by those employees to the City and to the public. Underpaying employees in this way fosters high turnover, absenteeism and lackluster performance. Conversely, adequate compensation promotes amelioration of these undesirable conditions. Through this article, the City intends to require service contractors to provide a minimum level of compensation which will improve the level of services rendered to and for the City.
The inadequate compensation leaves service employees with insufficient resources to afford life in Los Angeles. Contracting decisions involving the expenditure of City funds should not foster conditions that place a burden on limited social services. The City, as a principal provider of social support services, has an interest in promoting an employment environment that protects such limited resources. In requiring the payment of a higher minimum level of compensation, this article benefits that interest.
In comparison with the wages paid at San Francisco International Airport, the wage for Los Angeles airport workers is often lower even though the airports are similar in the number of passengers they serve and have similar goals of providing a living wage to the airport workforce. Studies show that higher wages at the airport leads to increases in worker productivity and improves customer service. Higher wages for airport workers also results in a decline in worker turnover, yielding savings to the employers and alleviating potential security concerns. Therefore, the City finds that a higher wage for airport employees is needed to reduce turnover and retain a qualified and stable workforce.
Many airport workers who provide catering services to the airlines are paid below the living wage. Federal law allows employment contract agreements between airline caterers and its workers to remain in effect without an expiration date, effectively freezing wages for workers. Long-term employment contract agreements provide little incentive for employers to renegotiate the employment contract agreements with their workers. Airline catering workers often struggle to pay their bills, sometimes having to choose between paying medical bills and buying food for their families.
EXHIBIT K-1
§ 10.37 |
CONTRACTS |
Division 10 |
The City finds that airline caterers should pay their workers, at a minimum, the living wage with benefits.
Airport workers are also the first to respond when an emergency occurs at the airport. In order to properly assist first responders during a crisis at the airport, the City finds that airport employees of Certified Service Provider License Agreement holders should be formally trained for an emergency response at the airport.
Nothing less than the living wage should be paid by employers that are the recipients of City financial assistance. Whether workers are engaged in manufacturing or some other line of business, the City does not wish to foster an economic climate where a lesser wage is all that is offered to the working poor.
The City holds a proprietary interest in the work performed by many employees of City lessees and licensees and by their service contractors, subcontractors, sublessees and sublicensees. The success or failure of City operations may turn on the success or failure of these enterprises, for the City has a genuine stake in how the public perceives the services rendered for them by such businesses. Inadequate compensation of these employees adversely impacts the performance by the City’s lessee or licensee and thereby hinders the opportunity for success of City operations. A proprietary interest in providing a living wage is important for various reasons, including, but not limited to: 1) the public perception of the services or products rendered to them by a business; 2) security concerns related to the location of the business or any product or service the business produces; or 3) an employer’s industry-specific job classification which is in the City’s interest to cover by the living wage. This article is meant to cover all such employees not expressly exempted.
Requiring payment of the living wage further serves a proprietary concern of the City. If an employer does not comply with this article, the City may: 1) declare a material breach of the contract; 2) declare the employer non-responsible and limit its ability to bid on future City contracts, leases or licenses; and 3) exercise any other remedies available.
SECTION HISTORY
Article and Section Added by Ord. No. 171,547, Eff. 5-5-97.
Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18.
Sec. 10.37.1. Definitions.
The following definitions shall apply throughout this article:
(a) “Airline Food Caterer” means any Employer that, with respect to the Airport:
(1)prepares food or beverage to or for aircraft crew or passengers;
(2)delivers prepared food or beverage to or for aircraft crew or passengers;
(3)conducts security or inspection of aircraft food or beverage; or
(4)provides any other service related to or in connection with the preparation of food or beverage to or for aircraft crew or passengers.
(b) “Airport” means the Department of Airports and each of the airports which it operates.
(c) “Awarding Authority” means the governing body, board, officer or employee of the City or City Financial Assistance Recipient authorized to award a Contract and shall include a department which has control of its own funds.
(d) “City” means the City of Los Angeles and all awarding authorities thereof, including those City departments which exercise independent control over their expenditure of funds.
(e) “City Financial Assistance Recipient” means any person who receives from the City discrete financial assistance for economic development or job growth expressly articulated and identified by the City, as contrasted with generalized financial assistance such as through tax legislation, in accordance with the following monetary limitations. Assistance given in the amount of $1,000,000 or more in any 12-month period shall require compliance with this article for five years from the date such assistance reaches the $1,000,000 threshold. For assistance in any 12-month period totaling less than $1,000,000 but at least $100,000, there shall be compliance for one year, with the period of compliance beginning when the accrual of continuing assistance reaches the $100,000 threshold.
EXHIBIT K-1
Chapter 1, Article 11 |
Contracts – General |
§ 10.37.1 |
Categories of assistance include, but are not limited to, bond financing, planning assistance, tax increment financing exclusively by the City and tax credits, and shall not include assistance provided by the Community Development Bank. City staff assistance shall not be regarded as financial assistance for purposes of this article. A loan at market rate shall not be regarded as financial assistance. The forgiveness of a loan shall be regarded as financial assistance. A loan shall be regarded as financial assistance to the extent of any differential between the amount of the loan and the present value of the payments thereunder, discounted over the life of the loan by the applicable federal rate as used in 26 U.S.C. §§ 1274(d) and 7872(f). A recipient shall not be deemed to include lessees and sublessees.
A recipient shall be exempted from application of this article if:
(1) it is in its first year of existence, in which case the exemption shall last for one year;
(2) it employs fewer than five Employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year; or
(3) it obtains a waiver as a recipient who employs the long-term unemployed or provides trainee positions intended to prepare Employees for permanent positions. The recipient shall attest that compliance with this article would cause an economic hardship and shall apply in writing to the City department or office administering the assistance. The department or office shall forward the waiver application and the department or office’s recommended action to the City Council. Waivers shall be effected by Council resolution.
(f) “Contractor” means any person that enters into:
(1) a Service Contract with the City;
(2) a contract with a Public Lessee or Licensee; or
(3) a contract with a City Financial Assistance Recipient to help the recipient in performing the work for which the assistance is being given.
(g) “Designated Administrative Agency (DAA)” means the Department of Public Works, Bureau of Contract Administration, which shall bear administrative responsibilities under this article.
(h) “Employee” means any person who is not a managerial, supervisory or confidential employee who expends any of his or her time working for an Employer in the United States.
(i) “Employer” means any person who is:
(1) a City Financial Assistance Recipient;
(2) Contractor;
(3) Subcontractor;
(4) Public Lessee or Licensee; and
(5) Contractor, Subcontractor, sublessee or sublicensee of a Public Lessee or Licensee.
(j) “Person” means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association or other entity that may employ individuals or enter into contracts.
(k) “Public Lease or License” means, except as provided in Section 10.37.15, a lease, license, sublease or sublicense of City property, including, but not limited to, Non-Exclusive License Agreements, Air Carrier Operating Permits and Certified Service Provider License Agreements (CSPLA), for which services are furnished by Employees where any of the following apply:
(1) The services are rendered on premises at least a portion of which is visited by members of the public (including, but not limited to, airport passenger terminals, parking lots, golf courses, recreational facilities);
(2) Any of the services feasibly could be performed by City employees if the City had the requisite financial and staffing resources; or
(3) The DAA has determined in writing as approved by the Board of Public Works that coverage would further the proprietary interests of the City. Proprietary interest includes, but is not limited to:
EXHIBIT K-1
§ 10.37.1 |
CONTRACTS |
Division 10 |
(i)the public perception of the services or products rendered to them by a business;
(ii) security concerns related to the location of the business or any product or service the business produces; or
(iii)an Employer’s industry-specific job classifications as defined in the regulations.
(l) “Service Contract” means a contract involving an expenditure in excess of $25,000 and a contract term of at least three months awarded to a Contractor by the City to furnish services for the City where any of the following apply:
(1) at least some of the services are rendered by Employees whose work site is on property owned or controlled by the City;
(2) the services feasibly could be performed by City employees if the City had the requisite financial and staffing resources; or
(3) the DAA has determined in writing as approved by the Board of Public Works that coverage would further the proprietary interests of the City. Proprietary interest includes, but is not limited to:
(i) the public perception of the services or products rendered to them by a business;
(ii) security concerns related to the location of the business or any product or service the business produces; or
(iii) an Employer’s industry-specific job classifications as defined in the regulations.
(m) “Subcontractor” means any person not an Employee who enters into a contract:
(1) to assist in performance of a Service Contract;
(2) with a Public Lessee or Licensee, sublessee, sublicensee or Contractor to perform or assist in performing services for the leased or licensed premises.
(n) “Willful Violation” means that the Employer knew of its obligations under this article and deliberately failed or refused to comply with its provisions.
SECTION HISTORY
Added by Ord. No. 171,547, Eff. 5-5-97.
Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; Subsec. (e), Ord. No. 176,155, Eff. 9-22-04: Subsec. (e), Ord. No. 176,283, Eff. 12-25-04, Oper. 9-22-04; Subsecs. (a) through (1) re-lettered (d) through (o), respectively and new Subsecs. (a), (b), and (c) added, Ord. No. 180,877, Eff. 10-19-09; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18.
Sec. 10.37.2. Payment of Minimum Compensation to Employees.
(a) Wages. An Employer shall pay an Employee for all hours worked on a Service Contract or if a Public Lease or License or for a Contractor of a Public Lessee or Licensee, for all hours worked furnishing a service relating to the City, a wage of no less than the hourly rates set under the authority of this article.
(1)Non-Airport Employee Wages.
(i) If an Employer provides an Employee with health benefits as provided in Section 10.37.3 of this article, the Employee shall be paid the following:
a.On July 1, 2018, the wage rate for an Employee shall be no less than $13.25 per hour.
b.On July 1, 2019, the wage rate for an Employee shall be no less than $14.25 per hour.
c.On July 1, 2020, the wage rate for an Employee shall be no less than $15.00 per hour.
d.On July 1, 2022, and annually thereafter, the hourly wage rate paid to an Employee shall be adjusted consistent with any adjustment pursuant to Section 187.02 D. of the Los Angeles Municipal Code.
(ii) If an Employer does not provide an Employee with health benefits as provided in Section 10.37.3 of this article, the Employee shall be paid the applicable wage rate in Section 10.37.2(a)(1)(i) and an additional wage rate of $1.25 per hour.
EXHIBIT K-1
Chapter 1, Article 11 |
Contracts – General |
§ 10.37.2 |
(iii) Section 10.37.11 is not applicable to this subdivision.
(2)Airport Employee Wages.
(i) If an Employer servicing the Airport provides an Employee with health benefits as provided in Section 10.37.3 of this article, the Employee shall be paid the following:
a. On July 1, 2017, the wage rate for an Employee shall be no less than $12.08 per hour.
b. On July 1, 2018, the wage rate for an Employee shall be no less than $13.75 per hour.
c. On July 1, 2019, the wage rate for an Employee shall be no less than $15.25 per hour.
d. On July 1, 2020, the wage rate for an Employee shall be no less than $16.50 per hour.
e. On July 1, 2021, the wage rate for an Employee shall be no less than $17.00 per hour.
f. Beginning on July 1, 2022, the wage rate for an Employee shall increase annually, on July 1, to an amount $2.00 above the minimum rate under the City’s Minimum Wage Ordinance for that same period of time.
(ii) If an Employer servicing the Airport does not provide an Employee with health benefits as provided in Section 10.37.3 of this article, the Employee shall be paid the applicable wage rate in Section 10.37.2(a)(2)(i) and an additional wage rate as follows:
a. On July 1, 2017, an Employer servicing the Airport shall pay an Employee an additional wage rate of $5.18 per hour.
b. Beginning on July 1, 2018, an Enployer servicing the Airport shall pay an Employee an additional wage rate per hour
equal to the health benefit payment in effect for an Employee pursuant to Section 10.37.3(a)(5).
(3)An Employer may not use tips or gratuities earned by an Employee to offset the wages required under this article.
(b) Compensated Time Off. An Employer shall provide an Employee compensated time off as follows:
(1) An Employee who works at least 40 hours per week or is classified as a full-time Employee by the Employer shall accrue no less than 96 hours of compensated time off per year.
(2) An Employee who works less than 40 hours per week and is not classified as a full-time Employee by the Employer shall accrue hours of compensated time off in increments proportional to that accrued by an Employee who works 40 hours per week.
(3) General Rules for Compensated Time Off.
(i) An Employee must be eligible to use accrued paid compensated time off after the first 90 days of employment or consistent with company policies, whichever is sooner. Compensated time off shall be paid at an Employee’s regular wage rate at the time the compensated time off is used.
(ii) An Employee may use accrued compensated time off hours for sick leave, vacation or personal necessity.
(iii) An Employer may not unreasonably deny an Employee’s request to use the accrued compensated time off. The DAA, through regulations, may provide guidance on what is considered unreasonable.
(iv) The DAA may allow an Employer’s established compensated time off policy to remain in place even though it does not meet these requirements, if the DAA determines that the Employer’s established policy is overall more generous.
(v) Unused accrued compensated time off shall carry over until time off reaches a maximum of 192 hours, unless the Employer’s established policy is overall more generous.
EXHIBIT K-1
§ 10.37.2 |
CONTRACTS |
Division 10 |
(vi) After an Employee reaches the maximum accrued compensated time off, an Employer shall provide a cash payment once every 30 days for accrued compensated time off over the maximum. An Employer may provide an Employee with the option of cashing out any portion of, or all of, the Employee’s accrued compensated time off, but, an Employer shall not require an Employee to cash out any accrued compensated time off. Compensated time off cashed out shall be paid to the Employee at the wage rate that the Employee is earning at the time of cash out.
(vii) An Employer may not implement any unreasonable employment policy to count accrued compensated time off taken under this article as an absence that may result in discipline, discharge, suspension or any other adverse action.
(4) Compensated Release Time. An Employer servicing the Airport who holds a Certified Service Provider License Agreement and is subject to this article shall comply with the following additional requirements:
(i) A CSPLA Employer shall provide an Employee at the Airport, 16 hours of additional compensated release time annually to attend and complete emergency response training courses approved by the Airport.
(ii) By December 31, 2018, and continuing thereafter on an annual basis, an Employee of a CSPLA Employer shall successfully complete the 16 hours of emergency response training.
(iii) An Employee of a CSPLA Employer hired after December 31, 2018, shall complete the 16 hours of emergency response training within 120 days of the first date of hire.
(iv) The 16 hours of compensated release time shall only be used to attend Airport approved annual emergency response training courses. The 16 hours of compensated release time does not accumulate or carry over to the following year. The 16 hours of compensated release time shall not be included as part of the 96 hours of compensated time off required under this article.
(c) Uncompensated Time Off. An Employer shall provide an Employee uncompensated time off as follows:
(1) An Employee who works at least 40 hours a week or is classified as a full-time Employee by an Employer shall accrue no less than 80 hours of uncompensated time off per year.
(2) An Employee who works less than 40 hours per week and is not classified as a full-time Employee by the Employer shall accrue hours of uncompensated time off in increments proportional to that accrued by an Employee who works 40 hours per week.
(3) General Rules for Uncompensated Time Off.
(i) An Employee must be eligible to use accrued uncompensated time off after the first 90 days of employment or consistent with company policies, whichever is sooner.
(ii) Uncompensated time off may only be used for sick leave for the illness of an Employee or a member of his or her immediate family and where an Employee has exhausted his or her compensated time off for that year.
(iii) An Employer may not unreasonably deny an Employee’s request to use the accrued uncompensated time off. The DAA, through regulations, may provide guidance on what is considered unreasonable.
(iv) Unused accrued uncompensated time off shall carry over until the time off reaches a maximum of 80 hours, unless the Employer’s established policy is overall more generous.
(v) An Employer may not implement any unreasonable employment policy to count accrued uncompensated time off taken under this article as an absence that may result in discipline, discharge, suspension or any other adverse action.
SECTION HISTORY
Added by Ord. No. 171,547, Eff. 5-5-97.
Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; Subsec. (a), Ord. No. 173,285, Eff. 6-26-00, Oper. 7-1-00; Subsec. (a), Ord. No. 180,877. Eff. 10-19-09; In Entirety, Ord. No. 184,318, Eff. 7-7-16: In Entirety, Ord. No. 185,321, Eff. 1-20-18: Subsec. (a)(1), Ord. No. 185,745. Eff. 10-15-18.
EXHIBIT K-1
Chapter 1, Article 11 |
Contracts – General |
§ 10.37.5 |
Sec. 10.37.3. Health Benefits.
(a)Health Benefits. The health benefits required by this article shall consist of the payment by an Employer of at least $1.25 per hour to Employees towards the provision of health care benefits for an Employee and his or her dependents. On July 1, 2017, the health benefit rate for an Employee working for an Employer servicing the Airport shall be at least $5.18 per hour. On July 1, 2018, the annual increase for Employees working for an Employer servicing the Airport shall continue as provided in Section 10.37.3(a)(5).
(1) Proof of the provision of such benefits must be submitted to the Awarding Authority to qualify for the wage rate in Section 10.37.2(a) for Employees with health benefits.
(2) Health benefits include health coverage, dental, vision, mental health and disability income. For purposes of this article, retirement benefits, accidental death and dismemberment insurance, life insurance and other benefits that do not provide medical or health related coverage will not be credited toward the cost of providing Employees with health benefits.
(3) If the Employer’s hourly health benefit payment is less than that required under this article, the difference shall be paid to the Employee’s hourly wage.
(4) Health benefits are not required to be paid on overtime hours.
(5) On July 1, 2018, and annually thereafter each July 1, the amount of payment for health benefits provided to an Employee working for an Employer servicing the Airport shall be adjusted by a percentage equal to the percentage increase, if any, in the United States Bureau of Labor Statistics Consumer Price Index for All Urban Consumers: Medical Care Services, as measured from January to December of the preceding year. The DAA shall announce the adjusted rates on February 1st and publish a bulletin announcing the adjusted rates, which shall take effect on July 1st of each year.
(b)Periodic Review. At least once every three years, the City Administrative Officer shall review the health benefit payment by Employers servicing the Airport set forth in Section 10.37.3(a) to determine whether the payment accurately reflects the cost of health care and to
assess the impacts of the health benefit payment on Airport Employers and Airport Employees and shall transmit a report with its findings to the Council.
SECTION HISTORY
Added by Ord. No. 171,547, Eff. 5-5-97.
Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; In Entirety, Ord. No. 180,877, Eff. 10-19-09; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18.
Sec. 10.37.4. Employer Reporting and Notification Requirements.
(a)An Employer shall post in a prominent place in an area frequented by Employees a copy of the Living Wage Poster and the Notice Regarding Retaliation, both available from the DAA.
(b)An Employer shall inform an Employee of his or her possible right to the federal Earned Income Credit (EIC) under Section 32 of the Internal Revenue Code of 1954, 26 U.S.C. § 32, and shall make available to an Employee forms informing them about the EIC and forms required to secure advance EIC payments from the Employer.
(c)An Employer is required to retain payroll records pertaining to its Employees for a period of at least four years, unless more than four years of retention is specified elsewhere in the contract or required by law.
(d)A Contractor, Public Lessee, Licensee, and City Financial Assistant Recipient is responsible for notifying all Contractors, Subcontractors, sublessees, and sublicensees of their obligation under this article and requiring compliance with this article. Failure to comply shall be a material breach of the contract.
SECTION HISTORY
Added by Ord. No. 171,547, Eff. 5-5-97.
Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18.
Sec. 10.37.5. Retaliation Prohibited.
An Employer shall not discharge, reduce in compensation, or otherwise discriminate against any Employee for complaining to the City with regard to the Employer’s compliance or anticipated compliance with this article, for opposing any practice proscribed by this article, for participating in proceedings related to this article, for seeking to enforce his or her rights under this article by any lawful means, or for otherwise asserting rights under this article.
EXHIBIT K-1
§ 10.37.5 |
CONTRACTS |
Division 10 |
SECTION HISTORY
Added by Ord. No. 171,547, Eff. 5-5-97.
Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18.
Sec. 10.37.6. Enforcement.
(a) An Employee claiming violation of this article may bring an action in the Superior Court of the State of California against an Employer and may be awarded:
(1) For failure to pay wages required by this article, back pay shall be paid for each day during which the violation occurred.
(2) For failure to comply with health benefits requirements pursuant to this article, the Employee shall be paid the differential between the wage required by this article without health benefits and such wage with health benefits, less amounts paid, if any, toward health benefits.
(3) For retaliation the Employee shall receive reinstatement, back pay or other equitable relief the court may deem appropriate.
(4) For Willful Violations, the amount of monies to be paid under Subdivisions (1) - (3), above, shall be trebled.
(b) The court shall award reasonable attorney’s fees and costs to an Employee who prevails in any such enforcement action and to an Employer who prevails and obtains a court determination that the Employee’s lawsuit was frivolous.
(c) Compliance with this article shall be required in all City contracts to which it applies. Contracts shall provide that violation of this article shall constitute a material breach thereof and entitle the Awarding Authority to terminate the contract and otherwise pursue legal remedies that may be available. Contracts shall also include an agreement that the Employer shall comply with federal law proscribing retaliation for union organizing.
(d) The DAA may audit an Employer at any time to verify compliance. Failure by the Employer to cooperate
with the DAA’s administrative and enforcement actions, including, but not limited to, requests for information or documentation to verify compliance with this article, may result in a determination by the DAA that the Employer has violated this article.
(e) An Employee claiming violation of this article may report the claimed violation to the DAA, which shall determine whether this article applies to the claimed violation.
(1) If any of the Employee’s allegations merit further review, the DAA shall perform an audit; the scope of which will not exceed four years from the date the complaint was received.
(2) If the claimed violation is filed after a contract has expired, and information needed for the review is no longer readily available, the DAA may determine this article no longer applies.
(3) In the event of a claimed violation of the requirements relating to compensated time off, uncompensated time off or wages, the DAA may require the Employer to calculate the amount the Employee should have earned and compensate the Employee. Nothing shall limit the DAA’s authority to evaluate the calculation.
(i) If the DAA determines that an Employer is in violation of Section 10.37.2(b), the time owed must be made available immediately. At the Employer’s option, retroactive compensated time off in excess of 192 hours may be paid to the Employee at the current hourly wage rate.
(ii) If the DAA determines that an Employer is in violation of Section 10.37.2(c), the Employer shall calculate the amount of uncompensated time off that the Employee should have accrued. This time will be added to the uncompensated time off currently available to the Employee and must be available immediately.
(f) Where the DAA has determined that an Employer has violated this article, the DAA shall issue a written notice to the Employer that the violation is to be corrected within ten days or other time period determined appropriate by the DAA.
(g) In the event the Employer has not demonstrated to the DAA within such period that it has cured the violation, the DAA may then:
EXHIBIT K-1
Chapter 1, Article 11 |
Contracts – General |
§ 10.37.8 |
(1) Request the Awarding Authority to declare a material breach of the Service Contract, Public Lease or License, or financial assistance agreement and exercise its contractual remedies thereunder, which may include, but not be limited to: (i) termination of the Service Contract, Public Lease or License, or financial assistance agreement; (ii) the return of monies paid by the City for services not yet rendered; and (iii) the return to the City of money held in retention (or other money payable on account of work performed by the Employer) when the DAA has documented the Employer’s liability for unpaid wages, health benefits or compensated time off.
(2) Request the Awarding Authority to declare the Employer non-responsible from future City contracts, leases and licenses in accordance with the Contractor Responsibility Ordinance (LAAC Section 10.40, et seq.) and institute proceedings in a manner that is consistent with law.
(3) Impose a fine payable to the City in the amount of up to $100 for each violation for each day the violation remains uncured.
(4) Exercise any other remedies available at law or in equity.
(h) Notwithstanding any provision of this Code or any other law to the contrary, no criminal penalties shall attach for violation of this article.
SECTION HISTORY
Added by Ord. No. 171,547, Eff. 5-5-97.
Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; Subsec. (d), Para. (1), Ord. No. 173,747, Eff. 2-24-01; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18.
Sec. 10.37.7. Administration.
The DAA shall administer the requirement of this article and monitor compliance, including the investigation of claimed violations. The DAA shall promulgate rules and regulations consistent with this article for the implementation of the provision of this article. The DAA shall also issue determinations that persons are City Financial Assistance Recipients, that particular contracts shall be regarded as “Service Contracts” for purposes of Section 10.37.1(1), and that particular leases and licenses shall be regarded as “Public Leases” or “Public licenses” for purposes of Section 10.37.1(k), when it receives an
application for a determination of non-coverage or exemption as provided for in Section 10.37.14 and 10.37.15.
The DAA may require an Awarding Authority to inform the DAA about all contracts in the manner described by regulation. The DAA shall also establish Employer reporting requirements on Employee compensation and on notification about and usage of the federal Earned Income Credit referred to in Section 10.37.4. The DAA shall report on compliance to the City Council no less frequently than annually.
Every three years after July 1, 2018, the Chief Legislative Analyst (CLA) with the assistance of the City Administrative Officer (CAO) shall commission a study to review the state of the Airport’s regional economy; minimum wage impacts for Employees servicing the Airport; Airport service industry impacts; temporary workers, guards and janitors impacts; restaurants, hotels and bars impacts; transitional jobs programs impacts; service charges, commissions and guaranteed gratuities impacts; and wage theft enforcement. On an annual basis, the CLA and CAO shall collect economic data, including jobs, earnings and sales tax. The Study shall also address how extensively affected Employers are complying with this article, how the article is affecting the workforce composition of affected Employers, and how the additional costs of the article have been distributed among Employees, Employers and the City.
SECTION HISTORY
Added by Ord. No. 171,547, Eff. 5-5-97.
Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; Ord. No. 173,285, Eff. 6-26-00, Oper. 7-1-00; Ord. No. 173,747, Eff. 2-24-01; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18.
Sec. 10.37.8. City is a Third Party Beneficiary of Contracts Between an Employer and Subcontractor for Purposes of Enforcement.
Any contract an Employer executes with a Contractor or Subcontractor, as defined in Section 10.37.1(f) and (m), shall contain a provision wherein the Contractor or Subcontractor agree to comply with this article and designate the City as an intended third party beneficiary for purposes of enforcement directly against the Contractor or Subcontractor, as provided for in Section 10.37.6 of this article.
EXHIBIT K-1
§ 10.37.8 |
CONTRACTS |
Division 10 |
SECTION HISTORY
Added by Ord. No. 171,547, Eff. 5-5-97.
Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; Ord. No. 173,285, Eff. 6-26-00, Oper. 7-1-00; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18.
Sec. 10.37.9. Coexistence with Other Available Relief for Specific Deprivations of Protected Rights.
This article shall not be construed to limit an Employee’s right to bring legal action for violation of other minimum compensation laws.
SECTION HISTORY
Added by Ord. No. 171,547, Eff. 5-5-97.
Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18.
Sec. 10.37.10. Expenditures Covered.
This article shall apply to the expenditure - whether through aid to City Financial Assistance Recipients, Service Contracts let by the City or Service Contracts let by its Financial Assistance Recipients - of funds entirely within the City’s control and to other funds, such as federal or state grant funds, where the application of this article is consonant with the laws authorizing the City to expend such other funds.
SECTION HISTORY
Added by Ord. No. 171,547, Eff. 5-5-97.
Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18.
Sec. 10.37.11. Timing of Application.
The provisions of this article shall become operative 60 days following the effective date of the ordinance and are not retroactive.
SECTION HISTORY
Added by Ord. No. 171,547, Eff. 5-5-97.
Amended by: In Entirety, Ord. No. 172,336. Eff. 1-14-99; Subsec. (b), Subsec. (c) Added, Ord. No. 173,747, Eff. 2-24-01; Subsec. (d) Added, Ord. No. 180,877, Eff. 10-19-09; In Entirety, Ord. No. 184,318. Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18.
Sec. 10.37.12. Express Supersession by Collective Bargaining Agreement.
The requirements of this article may be superseded by a collective bargaining agreement if expressly stated in the agreement. This provision applies to any collective bargaining agreement that expires or is open for negotiation of compensation terms after the effective date of this ordinance. Any collective bargaining agreement that purports to supersede any requirement of this article shall be submitted by the Employer to the DAA.
(a) A collective bargaining agreement may expressly supersede the requirements of this article with respect to Employees of Employers servicing the Airport only when an Employee is paid a wage not less than the applicable wage rate in Section 10.37.2(a)(2)(i).
(b) A collective bargaining agreement may expressly supersede the requirements of this article with respect to Employees of Airline Food Caterers only when an Employee of the Airline Food Caterer is paid a total economic package no less than the applicable wage rate in Section 10.37.2(a)(2)(ii).
SECTION HISTORY
Added by Ord. No. 171,547, Eff. 5-5-97.
Amended by: In Entirety, Ord. No. 172,336, Eff. 1-14-99; In Entirety, Ord. No. 184,318, Eff. 7-7-16; Title and Section In Entirety, Ord. No. 185,321, Eff. 1-20-18.
Sec. 10.37.13. Liberal Interpretation of Coverage; Rebuttable Presumption of Coverage.
The definitions of “City Financial Assistance Recipient” in Section 10.37.1(e), of “Public Lease or License” in Section 10.37.1(k), and of “Service Contract” in Section 10.37.1(1) shall be liberally interpreted so as to further the policy objectives of this article. All City Financial Assistance Recipients meeting the monetary thresholds of Section 10.37.1(e), all Public Leases and Licenses (including subleases and sublicenses) where the City is the lessor or licensor, and all City contracts providing for services shall be presumed to meet the corresponding definition mentioned above, subject, however, to a determination by the DAA of non-coverage or exemption on any basis allowed by this article, including, but not limited to, non-coverage for failure to satisfy such definition. The DAA shall by regulation establish procedures for informing persons engaging in such transactions with the City of their opportunity to apply for a determination of non-coverage or exemption and procedures for making determinations on such applications.
EXHIBIT K-1
Chapter 1, Article 11 |
Contracts – General |
§ 10.37.15 |
SECTION HISTORY
Added by Ord. No. 171,336, Eff. 1-14-99.
Amended by: Ord. No. 173,747, Eff. 2-24-01; In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18; In Entirety, Ord. No. 185,745. Eff. 10-15-18.
Sec. 10.37.14. Contracts, Employers and Employees Not Subject to this Article.
The following contracts are not subject to the Living Wage Ordinance. An Awarding Authority, after consulting with the DAA, may determine whether contracts and/or Employers are not subject to the Living Wage Ordinance due to the following:
(a) a contract where an employee is covered under the prevailing wage requirements of Division 2, Part 7, of the California Labor Code unless the total of the basic hourly rate and hourly health and welfare payments specified in the Director of Industrial Relations’ General Prevailing Wage Determinations are less than the minimum hourly rate as required by Section 10.37.2(a) of this article.
(b) a contract with a governmental entity, including a public educational institution or a public hospital.
(c) a contract for work done directly by a utility company pursuant to an order of the Public Utilities Commission.
SECTION HISTORY
Added by Ord. No. 184,318, Eff. 7-7-16.
Amended by: In Entirety, Ord. No. 185,321, Eff. 1-20-18.
Sec. 10.37.15. Exemptions.
Upon the request of an Employer, the DAA may exempt compliance with this article. An Employer seeking an exemption must submit the required documentation to the DAA for approval before the exemption takes effect.
(a) A Public Lessee or Licensee, that employs no more than seven people total on and off City property shall be exempted. A lessee or licensee shall be deemed to employ no more than seven people if the
company’s entire workforce worked an average of no more than 1,214 hours per month for at least three-fourths of the previous calendar year. If a Public Lease or License has a term of more than two years, the exemption granted pursuant to this section shall expire after two-years, but shall be renewable in two-year increments.
(b) Non-Profit Organizations. Corporations organized under Section 501(c)(3) of the United States Internal Revenue Code of 1954, 26 U.S.C. § 501(c)(3), whose chief executive officer earns a salary which, when calculated on an hourly basis, is less than eight times the lowest wage paid by the corporation, shall be exempted as to all Employees other than child care workers.
(c) Students. High school and college students employed in a work study or employment program lasting less than three months shall be exempt. Other students participating in a work-study program shall be exempt if the Employer can verify to the DAA that:
(1) The program involves work/training for class or college credit and student participation in the work-study program is for a limited duration, with definite start and end dates; or
(2) The student mutually agrees with the Employer to accept a wage below this article’s requirements based on a training component desired by the student.
(d) Nothing in this article shall limit the right of the Council to waive the provisions herein.
(e) Nothing in this article shall limit the right of the DAA to waive the provisions herein with respect to and at the request of an individual Employee who is eligible for benefits under Medicare, a health plan through the U.S. Department of Veteran Affairs or a health plan in which the Employee’s spouse, domestic partner or parent is a participant or subscriber to another health plan. An Employee who receives this waiver shall only be entitled to the hourly wage pursuant to Section 10.37.2(a)(2)(i).
SECTION HISTORY
Added by Ord. No. 184,318, Eff. 7-7-16.
Amended by: In Entirety, Ord. No. 185,321, Eff. 1-20-18.
EXHIBIT K-1
§ 10.37.16 |
CONTRACTS |
Division 10 |
Sec. 10.37.16. Severability.
If any subsection, sentence, clause or phrase of this article is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have adopted this section, and each and every subsection, sentence, clause and phrase thereof not declared invalid or unconstitutional, without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION HISTORY
Added by Ord. No. 172,336, Eff. 1-14-99.
Amended by: In Entirety, Ord. No. 184,318, Eff. 7-7-16; In Entirety, Ord. No. 185,321, Eff. 1-20-18.
EXHIBIT K-1
LOS ANGELES WORLD AIRPORTS
CONTRACTOR RESPONSIBILITY PROGRAM
PLEDGE OF COMPLIANCE
The Los Angeles World Airports (LAWA) Contractor Responsibility Program (Board Resolution #21601) provides that, unless specifically exempted, LAWA contractors working under contracts for services, for purchases, for construction, LAWA licensees with licenses, agreements or permits issued under the Certified Service Provider Program, and LAWA tenants with leases, that require the Board of Airport Commissioners’ approval shall comply with all applicable provisions of the LAWA Contractor Responsibility Program. Bidders and proposers are required to complete and submit this Pledge of Compliance with the bid or proposal or with an amendment of a contract subject to the CRP. In addition, within 10 days of execution of any subcontract, the contractor shall submit to LAWA this Pledge of Compliance from each subcontractor who has been listed as performing work on the contract.
The contractor agrees to comply with the Contractor Responsibility Program and the following provisions:
(a) |
To comply with all applicable Federal, state, and local laws in the performance of the contract, including but not limited to, laws regarding health and safety, labor and employment, wage and hours, and licensing laws which affect employees. |
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To notify LAWA within thirty (30) calendar days after receiving notification that any government agency has initiated an investigation that may result in a finding that the contractor is not in compliance with paragraph (a). |
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To notify LAWA within thirty (30) calendar days of all findings by a government agency or court of competent jurisdiction that the contractor has violated paragraph (a). |
(d) |
To provide LAWA within thirty (30) calendar days updated responses to the CRP Questionnaire if any change occurs which would change any response contained within the completed CRP Questionnaire. Note: This provision does not apply to amendments of contracts not subject to the CRP and to subcontractors not required to submit a CRP Questionnaire. |
(e) |
To ensure that subcontractors working on the LAWA contract shall complete and sign a Pledge of Compliance attesting under penalty of perjury to compliance with paragraphs (a) through (c) herein. To submit to LAWA the completed Pledges. |
(f) |
To notify LAWA within thirty (30) days of becoming aware of an investigation, violation or finding of any applicable federal, state, or local law involving the subcontractors in the performance of a LAWA contract. |
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To cooperate fully with LAWA during an investigation and to respond to request(s) for information within ten (10) working days from the date of the Notice to Respond. |
Failure to sign and submit this form to LAWA with the bid/proposal may make the bid/proposal non-responsive.
URW Airports, LLC, 2049 Century Park East, 41st Floor, Los Angeles, California 90067
Company Name, Address and Phone Number |
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/s/ Dan Hough |
February 8, 2021 |
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Signature of Officer or Authorized Representative |
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Dan Hough, Vice President - Airport Development |
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Fourth Amendment to Los Angeles International Airport Terminal Commercial Management Agreement for Terminal 1, 3, and 6 at Los Angeles International Airport | |
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Electronic Record and Signature Disclosure created on: 7/31/2020 11:44:06 AM
Parties agreed to: Dan Hough
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
Pursuant to the Electronic Signatures in Global and National Commerce Act (ESIGN) the Parties hereby expressly agree to the use of certificate-based electronic signature software operated by DocuSign for execution of this agreement/lease. The certificate based electronic signature generated by this software shall have the same legal effect as a handwritten signature and shall be admissible evidence of the Parties’ mutual intent to be legally bound by this agreement. The Parties declare that they have received all information required to be fully aware of the certificate-based electronic signature process, and each Party hereby waives any challenge against the enforceability of this agreement based on the use of such certificate-based electronic signature software.
ALTERNATIVE FUEL VEHICLE’ REQUIREMENT PROGRAM
(LAX ONLY)
I. Definitions.
The following capitalized terms shall have the following meanings. All definitions include both the singular and plural form.
“Airport Contract” shall mean a contract awarded by LAWA and pertaining to LAX, and subcontracts of any level under such a contract.
“Airport Contractor” shall mean (i) any entity awarded an Airport Contract, and subcontractors of any level working under an Airport Contract; (ii) any contractors that have entered into a contract with an Airport Lessee to perform work on property owned by LAWA and pertaining to LAX, and any subcontractors working in furtherance of such a contract; and (iii) any contractor that have entered into a contract with an Airport Licensee to perform work pertaining to LAX, and any subcontractors working under such a contract.
“Airport Lessee” shall mean any entity that leases or subleases any property owned by LAWA and pertaining to LAX.
“Airport Licensee” shall mean any entity issued a license or permit by LAWA for operations that pertain to LAX.
“Alternative-Fuel Vehicle” shall mean a vehicle that is not powered by petroleum-derived gasoline or diesel fuel. Alternative-Fuel Vehicles include, but are not limited to, vehicles powered by compressed or liquefied natural gas, liquefied petroleum gas, methanol, ethanol, electricity, fuel cells, or other advanced technologies.
“CARB” shall mean the California Air Resources Board.
“Covered Vehicle” is defined in Section II below.
“Compliance Plan” is defined in subsection VII.C. below.
“EPA” shall mean the United States Environmental Protection Agency.
“Independent Third Party Monitor” shall mean a person or entity empowered by LAWA to monitor compliance with and/or implementation of particular requirements in this Requirement.
“LAWA” shall mean Los Angeles World Airports.
“LAX” shall mean Los Angeles International Airport.
“Least-Polluting Available Vehicle” shall mean a vehicle that (a) is determined by an Independent Third Party Monitor to be (i) commercially available, (ii) suitable for performance of a particular task, and (iii) certified by CARB to meet the applicable engines emission standard in effect at the time of purchase. Where more than one vehicle meets these requirements for a particular task, LAWA, working with the Independent Third Party Monitor, will designate as the Least-Polluting Available Vehicle the vehicle that emits the least amount of criteria air pollutants.
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EXHIBIT P-1
“LEV” shall mean a vehicle that meets CARB’s Low-Emission Vehicle standards for criteria pollutant exhaust and evaporative emissions for medium-duty vehicles at the time of vehicle manufacture.
“LEV II” shall mean a vehicle certified by CARB to the “LEV II” Regulation Amendments that were fully implemented as of 2010. A qualifying “LEV II” vehicle shall meet the least polluting standard in the LEV II category that is available at the time of purchase.
“LEV III” shall mean a vehicle certified by CARB to the increasingly stringent “LEV III” Regulatory Amendments to the California greenhouse gas and criteria pollutant exhaust and evaporative emission standards, test procedures, and on-board diagnostic system requirements for medium-duty vehicles.
“Low-Use Vehicle” shall mean a Covered Vehicle that makes less than five (5) trips per month to LAX.
“Operator” shall mean any Airport Contractor, Airport Lessee, or Airport Licensee.
“Optional Low NOx” shall mean any vehicle powered by an engine that meets CARB’s optional low oxides of nitrogen (NOx) emission standards for on-road heavy-duty engines applicable at the time of purchase.
II. Covered Vehicles.
A. |
Covered Vehicles. These Requirements shall apply to all on-road vehicles, including trucks, shuttles, passenger vans, and buses that are 8,500 lbs gross vehicle weight rating or more and are used in operations related to LAX (“Covered Vehicles”). |
B. |
Exemptions. The following vehicles are exempt from this Requirement: |
i) |
Public safety vehicles. |
ii) |
Previously approved vehicles. Vehicles previously approved under the 2007 LAX Alternative Fuel Vehicle Requirement Program are exempt from the Maximum Allowable Vehicle Age Requirement, Section III, but are subject to the Annual Reporting Requirement, Section VI. |
iii) |
Low-Use Vehicles. Low-use vehicles are exempt from the Compliance Schedule, Section IV, the Maximum Allowable Vehicle Age Requirement, Section III, but are subject to the Annual Reporting Requirement, Section VI. |
III. Maximum Allowable Vehicle Age Requirement. In accordance with the Compliance Schedule dates outlined in Section IV, no Covered Vehicle equipped with an engine older than thirteen (13) model years or that has 500,000 or more miles, whichever comes first, shall operate at LAX.
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EXHIBIT P-1
IV. Compliance Schedule.
A. |
By April 30, 2019, one hundred percent (100%) of the Covered Vehicles operated by a Covered Vehicle Operator shall be (a) Alternative-Fuel Vehicles, (b) Optional Low NOx vehicles or (c) LEV II standard vehicles through 2019 or LEV III standard vehicles thereafter. |
B. |
A new Covered Vehicle Operator who plans to begin operations at LAX prior to April 30, 2019, must comply with the requirement set forth in Section III and subsection IV.A. prior to commencing operations at LAX. |
V. Least-Polluting Available Vehicles. In cases where an Operator cannot comply with the requirements established pursuant to Sections III and IV above because neither Alternative-Fuel Vehicles, Optional Low NOx standard vehicles, or LEV II standard vehicles through 2019 and LEV III standard vehicles thereafter, are commercially available for performance of particular tasks, LAWA will instead require Operators to use the Least-Polluting Available Vehicles for such tasks. An Independent Third Party Monitor will determine whether Alternative-Fuel Vehicles, Optional Low NOx standard vehicles, or LEV II standard vehicles through 2019 and LEV III standard vehicles thereafter are commercially available to perform particular tasks, and, in cases where neither Alternative-Fuel Vehicles, Optional Low NOx standard vehicles, nor LEV II standard vehicles through 2019 and LEV III standard vehicles thereafter are commercially available for performance of a particular task, will identify the Least-Polluting Available Vehicle for performance of that task.
VI. Annual Reporting Requirement.
A. |
By January 31st of each calendar year, Covered Vehicle Operators must submit to LAWA the vehicle information required on the reporting form accessible online at https://online.lawa.org/altfuel/ for the prior calendar year. |
B. |
Low-Use Vehicles shall be included in the annual reporting. Where monthly trip data is used to establish low-use, the operator must provide proof such as transponder data records or an attestation acceptable to LAWA. |
C. |
A Covered Vehicle Operator who plans to begin operations at LAX must comply with this reporting requirement prior to commencing operations, and thereafter comply with the annual reporting deadline of January 31st of each calendar year. |
VII. |
Enforcement. |
A. |
Non-Compliance. The following circumstances shall constitute non-compliance for purposes of this Section VII: |
i) |
Failure to submit an annual report pursuant to Section VI above. |
ii) |
Failure to use an Alternative Fuel Vehicle, an Optional Low NOx vehicle, a vehicle meeting LEV II standards prior to December 31, 2019, or LEV III standards thereafter, an approved Least-Polluting Available Vehicle, or a vehicle approved under LAWA’s former Alternative Fuel Vehicle Requirement, including approved comparable emissions vehicles. |
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EXHIBIT P-1
iii) |
Failure to submit a Compliance Plan as defined in subsection VII.C. below within 30 days of notice of non-compliance from LAWA. |
iv) |
Failure to adhere to an approved Compliance Plan as defined in subsection VII.C. below. |
B. |
Notice of Non-Compliance. Covered Vehicle Operators found not to be in compliance with the Alternative Fuel Vehicle Requirement as set forth in subsection VII.A. above will be given a notice of non-compliance. Covered Vehicle Operators will have 30 days to correct the deficiencies documented in the notice of non-compliance by completing the annual report as defined in Section VI or submitting a Compliance Plan as defined in subsection VII.C. below, as applicable to the reason cited for non-compliance. |
C. |
Compliance Plan. |
i) |
Operators shall transition to compliant vehicles as soon as practicable. |
ii) |
Non-compliant Covered Vehicle Operators will be required to submit a Compliance Plan indicating the disposition (salvage, replace, remove from service, etc.) date for each non-compliant vehicle (“Compliance Plan”) within 30 days of receiving a notice of non-compliance for a vehicle in the Operator’s fleet. The Compliance Plan shall provide dates by which the non-compliant vehicle or vehicles in the Operator’s fleet will meet the requirements of the LAX Alternative Fuel Vehicle Requirement and a justification for the new date. The Compliance Plan shall be signed under attestation. |
iii) |
LAWA’s Chief Executive Officer or his/her designee shall review the Operator’s Compliance Plan and justification to determine its acceptability and authorize approval or disapproval. |
iv) |
Covered Vehicle Operators shall have 30 days to seek review of LAWA’s rejection of a Compliance Plan or any parts thereof by LAWA’s Chief Executive Officer or his/her designee. |
D. |
Default. Three or more instances of non-compliance with the LAX Alternative Fuel Vehicle Requirement as defined in subsection VII.A above within two years shall be considered a default of the applicable LAX permit, license, contract, lease, Non-Exclusive License Agreement (NELA), concessionaire agreement, and/or Certified Service Provider (CSP) Program. LAWA’s Chief Executive Officer or his/her designee may, pursuant to the applicable terms provided therein, suspend or cancel a permit, license, contract, lease, NELA, concessionaire agreement or certified provider certification of non-compliant Covered Vehicle Operators who are not in compliance with this Alternative Fuel Vehicle Requirement. In addition, LAWA’s Chief Executive Officer or his/her designee may seek to recoup LAWA’s administrative costs from non-compliant operators. |
IX. |
Periodic Review. This Requirement will be reviewed and updated periodically as deemed necessary by LAWA. |
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EXHIBIT P-1
IRAN CONTRACTING ACT OF 2010 COMPLIANCE AFFIDAVIT
(California Public Contract Code Sections 2200-2208)
The California Legislature adopted the Iran Contracting Act of 2010 to respond to policies of Iran in a uniform fashion (PCC § 2201(q)). The Iran Contracting Act prohibits bidders or contractors engaged in investment activities in Iran from bidding on, submitting proposals for, or entering into or renewing contracts with public entities for goods and services of one million dollars ($1,000,000) or more (PCC § 2203(a)). A bidder or contractor who “engages in investment activities in Iran” is defined as either:
1. |
A bidder or contractor providing goods or services of twenty million dollars ($20,000,000) or more in the energy sector of Iran, including provision of oil or liquefied natural gas tankers, or products used to construct or maintain pipelines used to transport oil or liquefied natural gas, for the energy sector of Iran; or |
2. |
A bidder or contractor that is a financial institution (as that term is defined in 50 U.S.C. § 1701) that extends twenty million dollars ($20,000,000) or more in credit to another person, for 45 days or more, if that person will use the credit to provide goods or services in the energy sector in Iran and is identified on a list created by the California Department of General Services (DGS) pursuant to PCC § 2203(b) as a person engaging in the investment activities in Iran. |
The bidder or contractor who proposes to enter into or renew a contract shall certify that at the time of submitting a bid for new contract or renewal of an existing contract, he or she is not identified on the DGS list of ineligible businesses or persons and that the bidder or contractor is not engaged in investment activities in Iran in violation of the Iran Contracting Act of 2010.
California law establishes penalties for providing false certifications, including civil penalties equal to the greater of $250,000 or twice the amount of the contract for which the false certification was made; contract termination; and three-year ineligibility to bid on contracts (PCC § 2205).
To comply with the Iran Contracting Act of 2010, the bidder or contractor shall complete and sign ONE of the options shown below.
OPTION #1: CERTIFICATION
I, the official named below, certify that I am duly authorized to execute this certification on behalf of bidder or contractor, or financial institution identified below, and that the bidder or contractor, or financial institution identified below, is not on the current DGS list of persons engaged in investment activities in Iran and is not a financial institution extending twenty million dollars ($20,000,000) or more in credit to another person or vendor, for 45 days or more, if that other person or vendor will use the credit to provide goods or services in the energy sector in Iran and is identified on the current DSG list of persons engaged in investment activities in Iran.
[NAME OF COMPANY]
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/s/ Andrea Kahn |
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Andrea Kahn |
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Assistant Secretary |
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EXHIBIT Q
IRAN CONTRACTING ACT AFFIDAVIT
OPTION #2: EXEMPTION
Pursuant to PCC § 2203(c) and (d), a public entity may permit a bidder or contractor, or financial institution engaged in investment activities in Iran, on a case-by-case basis to be eligible for, or to bid on, submit a proposal for, or enter into, or renew, a contract for goods and services. If the bidder or contractor, or financial institution identified below has obtained an exemption from the certification requirement under the Iran Contracting Act of 2010, the bidder or contractor, or financial institution shall complete and sign below and attach documentation demonstrating the exemption approval.
[NAME OF COMPANY]
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EXHIBIT Q
IRAN CONTRACTING ACT AFFIDAVIT
Electronic Record and Signature Disclosure created on: 7/31/2020 11:44:06 AM
Parties agreed to: Andrea Kahn
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
Pursuant to the Electronic Signatures in Global and National Commerce Act (ESIGN) the Parties hereby expressly agree to the use of certificate-based electronic signature software operated by DocuSign for execution of this agreement/lease. The certificate based electronic signature generated by this software shall have the same legal effect as a handwritten signature and shall be admissible evidence of the Parties’ mutual intent to be legally bound by this agreement. The Parties declare that they have received all information required to be fully aware of the certificate-based electronic signature process, and each Party hereby waives any challenge against the enforceability of this agreement based on the use of such certificate-based electronic signature software.
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.20.5
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Los Angeles World Airports |
CONFORMED COPY |
BOARD FILE |
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RESOLUTION NO. 27363 |
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LAX Van Nuys City of Los Angeles Eric Garcetti Board of Airport Beatrice C. Hsu Valería C. Velasco Sean O. Burton Justin Erbacci Chief Executive Officer |
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WHEREAS, on recommendation of Management, there was presented for approval, Amendment to Concession Agreements at Los Angeles International Airport that are listed in Attachment 1 attached hereto and made part hereof, to revise the payment terms due to continuing impacts of COVID-19; and WHEREAS, on further recommendation of Management, the staff report was amended at the Board meeting revising the total number of concession agreements, for amendment, from nineteen (19) to twenty (20), as well as revising Attachment 1 to reflect the complete list of said twenty (20) agreements for amendment; and WHEREAS, Los Angeles World Airports (LAWA) operates a comprehensive concessions program at Los Angeles International Airport (LAX) that includes advertising and sponsorship, duty free merchandise, food and beverage, retail, and services operators in the terminal facilities. Contractually, concessionaires pay rent to LAWA in an amount equal to the greater of a percentage of gross sales or a Minimum Annual Guarantee (MAG). Due to the highly competitive concession market at LAX, the MAGs that were established when the contracts were executed are quite substantial; and WHEREAS, the decline in passenger traffic due to COVID-19 significantly reduced concession sales and prompted the Board of Airport Commissioners (Board) to temporarily authorize revised payment terms to suspend MAGs through June 30, 2021, and require concessionaires to pay rent only in the amount of the percentage of gross sales defined in each agreement. Unfortunately, the ongoing impacts of COVID-19 on travel have slowed the recovery of concession sales. The Amendment to the twenty (20) concession agreements listed in Attachment 1, will address said continuing impact; and |
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Resolution No. 27363 |
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Food and Beverage, Retail, and Service Concession Agreements | ||
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Description |
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Amendment |
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Duty Free and Currency Exchange Agreements | ||
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Description |
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Amendment |
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Resolution No. 27363 |
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Duty Free and Currency Exchange Agreements (contd) | ||
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Description |
Effective Date |
Amendment |
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Terminal Media Operator | ||
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Description |
Effective Date |
Amendment |
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WHEREAS, all other terms of the concession agreements will remain unchanged; and
WHEREAS, this action, as a continuing administrative activity, is exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article II, Section 2.f. of the Los Angeles City CEQA Guidelines; and
WHEREAS, the concessionaires are required by contract to comply with the provisions of the Living Wage and Service Contractor Worker Retention Ordinances; and
WHEREAS, the concessionaires are required to achieve the Airport Concession Disadvantaged Business Enterprise goals required in their agreements; and
WHEREAS, the concessionaires are required by contract to comply with the provisions of the Affirmative Action Program; and
WHEREAS, the concessionaires have each been assigned a Business Tax Registration Certificate number; and
WHEREAS, the concessionaires are required by contract to comply with the provisions of the Child Support Obligations Ordinance; and
Resolution No. 27363 |
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WHEREAS, the concessionaires have approved insurance documents, in the terms and amounts required, on file with LAWA; and
WHEREAS, the concessionaires have submitted the Contractor Responsibility Program Pledge of Compliance, and will comply with the provisions of said program; and
WHEREAS, the concessionaires must be determined by Public Works, Office of Contract Compliance, to be in compliance with the provisions of the Equal Benefits Ordinance prior to execution of their respective Amendments; and
WHEREAS, the concessionaires will be required to comply with the provisions of the First Source Hiring Program for all non-trade Los Angeles International Airport jobs; and
WHEREAS, the concessionaires will comply with the provisions of the Bidder Contributions CEC Form 55; and
WHEREAS, the concessionaires will comply with the provisions of the MLO Bidder Contributions CEC Form 50; and
WHEREAS, actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606;
NOW, THEREFORE, BE IT RESOLVED that the Board of Airport Commissioners adopted the amended Staff Report; determined that this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Article II, Section 2.f. of the Los Angeles City CEQA Guidelines; approved the Amendment to the twenty (20) Concession Agreements, listed in Attachment 1 attached hereto and made part hereof, to revise the payment terms due to continuing impacts of COVID-19; and authorized the Chief Executive Officer, or designee, to execute the Amendment to said Concession Agreements after approval as to form by the City Attorney and approval by the Los Angeles City Council.
o0o
I hereby certify that this Resolution No. 27363
is true and correct, as adopted by the Board of
Airport Commissioners at its Regular Meeting
held on Thursday, October 21, 2021.
/s/ Grace Miguel |
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Grace Miguel – Secretary |
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BOARD OF AIRPORT COMMISSIONERS |
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Approved by Los Angeles City Council on December 8, 2021 |
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Attachment 1 - Concessions Agreement Summary |
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Resolution No. 27363 |
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Board File
No. LAA-8640E
FIFTH AMENDMENT TO LOS ANGELES INTERNATIONAL AIRPORT TERMINAL
COMMERCIAL MANAGEMENT CONCESSION AGREEMENT NO. LAA-8640 FOR
TERMINALS 1, 3 AND 6 BETWEEN CITY OF LOS ANGELES DEPARTMENT OF
AIRPORTS AND URW AIRPORTS LLC
This Fifth Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement No. LAA-8640 for Terminals 1, 3 and 6 (this “Fifth Amendment”) is made and entered into as of Dec. 15, 2021 (“Effective Date”) by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (“City”), acting by order of and through its Board of Airport Commissioners (“Board”), and URW AIRPORTS, LLC, a Delaware limited liability company (“TCM”), with reference to the following:
RECITALS
WHEREAS, City and TCM (f/k/a Westfield Concession Management, LLC and Westfield Airports, LLC) heretofore entered into that certain Los Angeles International Airport Terminal Commercial Manager Concession Agreement (Board File No. LAA-8640) dated June 22, 2012, as amended by that certain First Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement (Board File No. LAA-8640A) dated June 9, 2016 between City and TCM, by that certain second amendment (the “Second Amendment”) in the form of a letter agreement (Board File No. LAA-8640B) dated April 22, 2020 between City and TCM, by that certain third amendment (the “Third Amendment”) in the form of a letter amendment (Board File No. LAA-8640C) dated September 30, 2020 between City and TCM, and by that certain Fourth Amendment (the “Fourth Amendment”) to Los Angeles International Airport Terminal Commercial Management Concession Agreement (Board File No. LAA-8640D) dated April 30, 2021 (as amended, the “Agreement”). Unless otherwise defined in this Fifth Amendment or the context otherwise requires, the capitalized terms used in this Fifth Amendment shall have the same respective meanings as ascribed to such terms in the Agreement.
WHEREAS, in consideration of the recent decline in flight and passenger traffic at the Airport and the resulting temporary decline in airport revenue generating opportunities, the parties desire to amend the Agreement, among other things, to temporarily adjust the Minimum Annual Guaranteed Rent (sometimes also referred to as the MAG) on the terms and conditions set forth in this Fifth Amendment.
AGREEMENT
NOW, THEREFORE, the parties hereto, for and in consideration of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties hereto, do mutually agree that the Agreement, BE AMENDED AS FOLLOWS:
Section 1 – Definitions. For purposes of this Fifth Amendment, the following capitalized terms shall have the respective meanings as set forth below:
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Section 2 – Change of Annual Period for Calculation of Base Rent. In order to implement the MAG suspension and temporary adjustment provisions of this Fifth Amendment, the annual period for the calculation of the Base Rent (including the calculation of the Minimum Annual Guaranteed Rent and the Percentage Rent) under Article IV of the Agreement is being amended by this Section 2, effective for the period beginning July 1, 2021 and continuing thereafter through the end of the Primary Term, to be the twelve (12) month period beginning July 1st and ending June 30th (instead of the calendar year). Accordingly, effective for the period beginning July 1, 2021 and continuing thereafter through the end of the Primary Term, the term “Year” as used in the Agreement shall mean each twelve (12) month period beginning July 1st and ending June 30th (including any portion of a Year in which the expiration or earlier termination of the Primary Term occurs).
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As the result of the foregoing amendment to the term Year, the calculation of the Base Rent for the period beginning January 1, 2021 and ending June 30, 2021 will be for such 6-month period instead of an annual period and applicable annual amounts will be prorated accordingly. Notwithstanding the foregoing amendment to the term Year, the annual period for measuring Performance Metrics under Section 3.2 of the Agreement shall remain the calendar year and the Performance Metrics Measurement Period shall remain unchanged. For clarity and avoidance of doubt, the foregoing amendment to the term “Year” does not change the Expiration Date of the Agreement.
Section 2.1. As the result of the foregoing amendment to the term Year, the time period for the annual update of the Business and Operations Plan under Section 3.2 of the Agreement shall be changed as set forth in this Section 2.1. Within thirty (30) days following the Effective Date, TCM shall submit to City for approval TCM’s proposed updated Business and Operations Plan for the July 1, 2021 through June 30, 2022 Year. For subsequent Years, TCM shall submit its proposed updated Business and Operations Plan to City for approval no later than April 1st immediately preceding the applicable Year (i.e., no later than three (3) months prior to the commencement date of the applicable Year).
Section 3 – Amendment to Agreement Section 4.1.2 for the Period Beginning July 1, 2021 and Thereafter. Effective for the period beginning July 1, 2021 and continuing thereafter through the end of the Primary Term, Section 4.1.2 of the Agreement is hereby amended and restated to read in its entirety as follows:
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Section 4 – Amendment to Agreement Section 4.1.2.1 for the Period Beginning July 1, 2021 and Thereafter. Effective for the period beginning July 1, 2021 and continuing thereafter through the end of the Primary Term, Section 4.1.2.1 of the Agreement is hereby amended and restated to read in its entirety as follows:
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Section 5 – Amendment to Fifth Sentence of Agreement Section 4.1.3 for the Period Beginning July 1, 2021 and Thereafter. Effective for the period beginning July 1, 2021 and continuing thereafter through the end of the Primary Term, the fifth sentence of Section 4.1.3 of [**]
Section 6 – Amendment to Agreement Section 4.10.2 for the Period Beginning July 1, 2021 and Thereafter. Effective for the period beginning July 1, 2021 and continuing thereafter through the end of the Primary Term, the date for the annual adjustment to the FPG under Section 4.10.2 of the Agreement shall be July 1st (instead of January 1st).
Section 7 – Conditions to Rental Suspension and Temporary Adjustment Provisions. [**] 10, 11 and 12 or this Fifth Amendment shall not apply not have any force or effect with respect to TCM. If any of such conditions fail to be satisfied by any sub-concessionaire(s), then neither TCM nor such sub-concessionaire(s) shall be entitled to receive the pro-rata share of such benefits of the rental suspension, temporary adjustment and rent credit provisions set forth in Sections 8, 9, 10, 11 and 12 of this Fifth Amendment. TCM shall immediately notify City of the failure of any of such conditions. TCM’s payment of reduced rent or acceptance of a rent credit pursuant to such Sections shall be deemed a representation to City that these conditions have been and continue to be fulfilled.
Section 7.1.TCM and its sub-concessionaires have not received and are not receiving a second draw or assistance for a covered loan under section 7(a)(37) of the Small Business Act (15 U.S.C. 636(a)(37)) that has been applied toward rent or the Minimum Annual Guaranteed Rent. TCM and its sub-concessionaires shall cooperate with City to confirm compliance with any audit to confirm compliance with applicable law, including but not limited to the American Rescue Plan Act (“ARPA”).
Section 7.2.TCM and its sub-concessionaires continue to comply with their respective obligations to re-employ employees under Sections 4(a) and 4(c) of the Second Amendment.
Section 7.3.Each Unit shall be open for operations with adequate staffing to the satisfaction of the Chief Executive Officer.
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For a Unit to be considered open and to qualify for MAG abatement or temporary adjustment, TCM or its applicable sub-concessionaire must demonstrate to the satisfaction of the Chief Executive Officer that the total worker hours at such sub-concessionaire’s Unit is proportional to the passenger traffic in the terminal in which such Unit is located, using December 2019 total worker hours and passenger traffic as the basis of full worker hours/sales, unless TCM or its applicable sub-concessionaire can demonstrate to the Chief Executive Officer’s satisfaction that failure to achieve such staffing levels is solely due to challenges to hire employees as documented through significant, well-documented effort to do so; this provision shall not be construed in any case to require staffing levels that exceed December 2019 levels.
Section 7.4.TCM must consent to and approve of City’s calculation of fund allocations under the American Rescue Plan Act (“Act”) as described in Section 12 below.
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Section 14 – Determinations Relating to Passenger Enplanements. The determination of the total number of passenger enplanements in the commercial airline terminals at the Airport for any given period shall be made by the Chief Executive Officer, and such determination by the Chief Executive Officer shall be deemed binding and conclusive on TCM. The parties acknowledge that the Chief Executive Officer has determined that the total number of passenger enplanements in the following commercial airline terminals at the Airport for the Base Enplanement Period were as follows: (a) Terminal 1: 4,710,204; (b) Terminal 3: 4,007,294; and (c) Terminal 6: 4,211,498.
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Section 16 – Correction to Agreement Section 4.1.2 for the Period January 1, 2019 Through June 30, 2021. In order to correct certain discrepancies in the Fourth Amendment, Amendment Section 8 of the Fourth Amendment (regarding the amendment and restatement of Section 4.1.2 of the Agreement) is hereby deleted. Effective for the period beginning January 1, 2019 and ending June 30, 2021, Section 4.1.2 of the Agreement is hereby amended and restated to read in its entirety as follows:
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Section 17 – Correction to Agreement Section 4.1.2.1 for the Period January 1, 2019 Through June 30, 2021. In order to correct certain discrepancies in the Sixth Amendment, Amendment Section 9 of the Fourth Amendment (regarding the amendment of Section 4.1.2.1 of the Agreement) is hereby deleted. Effective for the period beginning January 1, 2019 and ending June 30, 2021, Section 4.1.2.1 of the Agreement is hereby amended and restated to read in its entirety as follows:
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be adjusted by the percentage change in the CPI (as defined below) in effect for the month of the Adjustment Date over the CPI in effect for the month of January in the immediately prior year (the “Base CPI Month”) (i.e., the Minimum Per Square Foot MAG Amount shall be multiplied by a fraction the numerator of which shall be the CPI for the month of the Adjustment Date and the denominator for which shall be the CPI for the applicable Base CPI Month); provided, however in no event shall the Minimum Per Square Foot MAG Amount be decreased as the result of such computation; and provided, further, that in no event shall the Minimum Per Square Foot MAG Amount be increased by more than two and one-half percent (2.5%) per Year as the result of such computation. The Minimum Per Square Foot MAG Amount as so increased shall then be multiplied times the total number of square feet of all Units contained within the Premises and the product thereof shall constitute the “CPI Adjusted Minimum Annual Guaranteed Rent” as of the Adjustment Date. The term “CPI” shall mean the Consumer Price Index of the Bureau of Labor Statistics of the U.S. Department of Labor of CPI-U (all urban consumers) for the Los Angeles-Long Beach-Anaheim, California Area, 1982-1984=100. In the event that the compilation and/or publication of the CPI shall be discontinued, then the index most nearly the same as the CPI shall be used to make such calculation (as reasonably determined by the Chief Executive Officer).”
Section 18 – Surcharge Provision Amendment. The first sentence of Section 6.b of the Third Amendment between City and TCM is hereby deleted in its entirety and replaced with the following:
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Section 19 – Digital Program. TCM acknowledges that: (i) City intends to implement an airport-wide digital online shop and dine program and delivery system (“Digital Program”); (ii) such Digital Program may be operated by one or more third party contractors; (iii) if the Digital Program is implemented, TCM shall participate (and shall cause its sub-concessionaires to participate) in the Digital Program; and (iv) such Digital Program may not become effective until after the Effective Date of this Amendment. Nothing in this Section shall be construed to preclude participation in the pilot program authorized by Board Resolution no. 27007 (approving the Chief Executive Officer Consent to Permitted Uses).
Section 20 – TCM’s Representations.
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As a material inducement to City’s entering into this Fifth Amendment, TCM hereby represents, warrants and covenants to City as follows: (1) City is not in default in the performance of any of the terms or provisions of the Agreement; (2) City has duly delivered the Premises to TCM in accordance with the terms of the Agreement, and there exists no unresolved disputes or claims by TCM in connection with the Agreement (including, without limitation, for items of construction, repair or capital expenditure for which City is liable or obligated to pay for or to perform in connection with the Agreement); (3) TCM neither has nor claims any defenses, setoffs or credits against the payment of Rent payable under the Agreement; and (4) City shall be entitled to rely on the accuracy of the foregoing representations, warranties and covenants, and TCM hereby releases City from any claims relating to the foregoing matters.
Section 21 – Miscellaneous. This Fifth Amendment may be executed in counterparts, including counterparts that are manually executed and counterparts that are in the form of electronic records and are electronically executed. An electronic signature means a signature that is executed by symbol attached to or logically associate with a record and adopted by a party with the intent to sign such record, including facsimile or e-mail signatures. All executed counterparts shall constitute one amendment, and each counterpart shall be deemed an original. The parties hereby acknowledge and agree that electronic records and electronic signatures, as well as facsimile signatures, may be used in connection with the execution of this Fifth Amendment and electronic signatures, facsimile signatures or signatures transmitted by electronic mail in so-called PDF format shall be legal and binding and shall have the same full force and effect as if a paper original of this Fifth Amendment had been delivered that had been signed using a handwritten signature. All parties to this Fifth Amendment (i) agree that an electronic signature, whether digital or encrypted, of a party to this Fifth Amendment is intended to authenticate this writing and to have the same force and effect as a manual signature; (ii) intended to be bound by the signatures (whether original, faxed, or electronic) on any document sent or delivered by facsimile or electronic mail or other electronic means; (iii) are aware that the other party(ies) will rely on such signatures; and, (iv) hereby waive any defenses to the enforcement of the terms of this Fifth Amendment based on the foregoing forms of signature. If this Fifth Amendment has been executed by electronic signature, all parties executing this document are expressly consenting, under the United States Federal Electronic Signatures in Global and National Commerce Act of 2000 (“E-SIGN”) and the California Uniform Electronic Transactions Act (“UETA”) (California Civil Code §1633.1 et seq.), that a signature by fax, e-mail, or other electronic means shall constitute an Electronic Signature to an Electronic Record under both E-SIGN and UETA with respect to this specific transaction.
Section 23 – Full Force and Effect. Except as amended and modified as set forth in this Fifth Amendment, the terms and provisions of the Agreement remain the same and in full force and effect.
[signatures appear on following page]
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IN WITNESS WHEREOF, City has caused this Fifth Amendment to be executed on its behalf by the Chief Executive Officer, or his or her authorized signatory, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
APPROVED AS TO FORM: |
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CITY OF LOS ANGELES |
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MICHAEL N. FEUER, |
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By: |
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City Attorney |
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Chief Executive Officer |
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City of Los Angeles, Department of Airports |
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By: |
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Deputy/Assistant City Attorney |
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Date: |
10/29/21 |
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By: |
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Chief Financial Officer |
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City of Los Angeles, Department of Airports |
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URW AIRPORTS, LLC |
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ATTEST: |
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By: |
/s/ Dan Hough |
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By: |
/s/ Mike Salzman |
Name: |
Dan Hough |
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Name: |
Mike Salzman |
Title: |
Vice President - Airport Development |
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Title: |
Executive Vice President - Airports |
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ACKNOWLEDGEMENT OF GUARANTOR
The undersigned, URW WEA LLC, a Delaware limited liability company (herein, “Guarantor”), who is the successor by merger to Westfield America, Inc., a Missouri corporation, hereby represents, acknowledges, and agrees as follows: (1) Guarantor has reviewed the foregoing Fifth Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for Terminals 1, 3 and 6, between the City of Los Angeles and URW Airports, LLC (“Fifth Amendment”); (2) Guarantor is the guarantor of TCM’s obligations under the Agreement described in the Fifth Amendment pursuant to that certain Guaranty Agreement executed concurrently with the execution of the Agreement (the “Guaranty”); (3) Guarantor approves of TCM’s execution of the Fifth Amendment and agrees with its terms; and (4) the Guaranty is hereby reaffirmed, and the Guaranty is and remains in full force and effect and continues to guarantee the prompt payment and performance by TCM of all of the terms of the TCM Agreement, as amended. This Acknowledgement of Guarantor has been executed as of the date of execution of the Fifth Amendment by TCM.
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“GUARANTOR” |
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ATTEST: |
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URW WEA LLC |
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By: |
/s/ Hyura Choi |
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By: |
/s/ John Kim |
Name: |
Hyura Choi |
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John Kim |
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Assistant Secretary |
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Title: |
Assistant Secretary |
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.20.6
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CONFORMED COPY |
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BOARD FILE NOS. LAA-8640F |
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LAX Van Nuys City of Los Angeles Karen Bass Mayor Board of Airport Commissioners Beatrice C. Hsu President Valería C. Velasco Vice President Gabriel L. Eshaghian Matthew M. Johnson Nicholas P. Roxborough Belinda M. Vega Karim Webb Justin Erbacci Chief Executive Officer |
RESOLUTION NO. 27691 WHEREAS, on recommendation of Management, there was presented for approval, Sixth Amendment to LAA-8640 and the Eighth Amendment to LAA-8613 with URW Airports, LLC covering terminal commercial management concessions at Los Angeles International Airport, to allow said concessionaire to structure more flexible short-term concession opportunities, return unusable spaces, and enter into a limited duty-free concession agreement in the Tom Bradley International Terminal; and WHEREAS, since 2012, URW Airports, LLC (URW) has managed concessions in Terminals 1, 3, and 6 pursuant to Concession Agreement LAA 8640 and in Terminal 2 and Tom Bradley International Terminal (TBIT) pursuant to Concession Agreement LAA-8613. Over the past ten years, passenger traffic and demographics within those terminals have changed due to airline relocations and new passenger behavior patterns post COVID-19 pandemic. The Amendments will provide flexibility to allow URW to develop new revenue opportunities, offer more economically viable terms to small, local, and disadvantaged businesses, and return space that is no longer operable due to changes in airline operations or facility design; and WHEREAS, to support the shifting passenger expectations and expand revenue generating opportunities, URW has requested the opportunity to replace existing brands in the retail island in TBIT that have been underperforming. To take advantage of international passenger demand for duty-free luxury brand goods, URW proposes to sublease approximately 5,800 square feet to LAWA’s existing duty-free operator – DFS Group, LP (DFS). URW’s concession agreement does not allow URW to operate duty-free retail concessions; and WHEREAS, in addition, LAWA and URW have worked collaboratively to find progressive ways to attract new small and disadvantaged businesses into the airport concessions. The biggest hurdles for small and disadvantaged concession operators are the high cost of construction and operations at Los Angeles International Airport (LAX). URW’s current agreements do not support flexibility to develop progressive revenue and cost-sharing models; and WHEREAS, lastly, URW’s current agreements do not allow for flexibility to return spaces that are impacted by operational changes that limit passengers access to certain concession locations. Limited passenger access to spaces diminishes a concessionaire’s ability to generate revenue; and WHEREAS, sales of the existing concessions in the retail island in TBIT have not performed to expectations. To align retail offerings with international passenger demand for duty-free merchandise, URW has proposed to expand duty-free luxury brand offerings in TBIT, which are expected to generate three times more sales annually than the existing concession brands. The Eighth Amendment to LAA-8613, which includes all space in TBIT, will allow URW to execute a subcontract with LAWA’s existing duty-free operator to support the proposal; and WHEREAS, URW and DFS have agreed to terms of a sublease agreement that will provide approximately 5,800 square feet of space in the TBIT Great Hall to DFS through June 30, 2034. Pursuant to the sublease, DFS plans to invest approximately $15,000,000 to expand the luxury brand offering, enhance existing stores, and create an expanded/cohesive duty-free shopping experience. To support the site improvement, the Amendment to LAA-8613 will temporarily waive URW’s rent on the 5,800 square feet space for period not to exceed six (6) months; and |
Resolution No. 27691 |
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WHEREAS, URW and DFS expect sales of duty-free luxury items in said location will be at least three times greater than the sales of the existing specialty retail units due to the competitive advantage duty-free merchandise has over duty-paid high-end retail. In addition, the retail island is strategically located adjacent to the existing DFS locations, which provides the opportunity to create an expanded, cohesive luxury duty-free retail experience that will be intuitive to passengers as they move through the TBIT Great Hall; and
WHEREAS, the original Request for Proposals for the Terminal Commercial Manager did not include the opportunity to operate duty-free retail concessions. However, management’s analysis is that it is not practical to rebid the 5,800 square feet of space because of the limited size and limited remaining term, which would probably not result in more advantageous terms than those being offered by URW. Therefore, management staff instead recommends allowing URW to operate a limited duty-free retail concession, only within that space; and
WHEREAS, to support the proposal to allow URW to operate limited duty-free concessions, LAWA staff simultaneously requested Board of Airport Commissioners (BOAC) approval of an amendment to DFS’s concession agreement. Said amendment will allow DFS to return underperforming spaces in Terminals 2 and 6, which URW intends to repurpose with new food and retail offerings that support passenger demands in these terminals. The DFS amendment also will extend the term of the DFS agreement by five (5) years, which will support DFS’s proposed investment to upgrade the retail island and its existing spaces in TBIT. The term extension will align the termination of the DFS and URW agreements to 2034, which allows LAWA greater flexibility to release the concessions spaces in TBIT in the future; and
WHEREAS, in addition, the Sixth Amendment to LAA-8640 and Eighth Amendment to LAA-8613 will provide URW the opportunity to offer more flexible economic terms to Airport Concessions Disadvantaged Business Enterprise (ACDBE) and other small and local businesses. Under the terms of the Amendments, URW and LAWA will be able to offset capital costs and provide revised rent structures that reduce guaranteed rents and provide higher percent rent payments after certain recovery thresholds are met. LAWA and URW staff believe this approach will provide more opportunities for new and existing small businesses and ACDBEs to gain experience operating at LAX. All new agreements developed pursuant to the amended terms will require a separate action by BOAC to approve the terms of the proposed short term sub-concession agreements; and
WHEREAS, the Amendments will also allow URW to request to return certain concession space if the area is impacted by airport or other operational needs. This flexibility will allow URW and concessions to focus on favorable opportunities instead of seeking remedies for locations that are no longer viable. All request to return space must be approved by LAWA’s Chief Executive Officer; and
WHEREAS, issuance of permits, leases, agreements, gate and space assignments, and renewals, amendments or extensions thereof, or other entitlements granting use of existing airport facilities or its operations is exempt from California Environmental Quality Act (CEQA) requirements pursuant to Article III, Class 1 (18)(c) of the Los Angeles City CEQA Guidelines; and
WHEREAS, URW is required by contract to comply with the provisions of the Living Wage Ordinance, Affirmative Action Program, and Child Support Obligations Ordinance; and
WHEREAS, Procurement Services Division has reviewed this action (File 5124) and established the following ACDBE goals: Food/Beverage – 25%; Retail – 20%. URW proposed ACDBE participation at said goals. URW has achieved 34.23% participation for Food/Beverage and 29.80% ACDBE participation for Retail to date; and WHEREAS, URW is assigned Business Tax Registration Certificate 0002573628-0001-4; and
Resolution No. 27691 |
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WHEREAS, URW has approved insurance documents, in the terms and amounts required, on file with LAWA; and
WHEREAS, URW has submitted the Contractor Responsibility Pledge of Compliance, and will comply with the provisions of said program; and
WHEREAS, URW is required by contract to comply with the provisions of the First Source Hiring Program for all non-trade LAX jobs; and
WHEREAS, URW has submitted the Bidder Contributions CEC Form 55, and will comply with its provisions; and
WHEREAS, URW has submitted a signed Labor Peace Agreement, and will comply with its provisions; and
WHEREAS, actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606;
NOW, THEREFORE, BE IT RESOLVED that the Board of Airport Commissioners adopted the Staff Report; determined that this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Article III, Class 1 (18)(c) of the Los Angeles City CEQA Guidelines; approved the Sixth Amendment to LAA-8640 and the Eighth Amendment to LAA-8613 with URW Airports, LLC covering terminal commercial management concessions at Los Angeles International Airport, to allow said concessionaire to structure more flexible short-term concession opportunities, return unusable spaces, and enter into a limited duty-free concession agreement in the Tom Bradley International Terminal; found that this action is exempt from City Charter Sections 371(e)(10) and 372; and authorized the Chief Executive Officer, or designee, to execute said Sixth Amendment to LAA-8640 and the Eighth Amendment to LAA-8613 with URW Airports, LLC after approval as to form by the City Attorney and approval by the Los Angeles City Council.
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I hereby certify that this Resolution No. 27691
is true and correct, as adopted by the Board of
Airport Commissioners at its Regular Meeting
held on Thursday, March 2, 2023.
/s/ Grace Miguel |
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Grace Miguel – Secretary |
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BOARD OF AIRPORT COMMISSIONERS | |
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Approved by Los Angeles City Council on August 15, 2023 | |
Board File
NO. LAA-8640F
SIXTH AMENDMENT TO LOS ANGELES INTERNATIONAL AIRPORT TERMINAL
COMMERCIAL MANAGEMENT CONCESSION AGREEMENT NO. LAA-8640 FOR
TERMINALS 1, 3 AND 6 BETWEEN CITY OF LOS ANGELES DEPARTMENT OF
AIRPORTS AND URW AIRPORTS LLC
This Sixth Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement No. LAA-8640 for Terminals 1, 3 and 6 (this “Sixth Amendment”) is made and entered into as of Sept. 8, 2023 (“Effective Date”) by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (“City”), acting by order of and through its Board of Airport Commissioners (“Board”), and URW AIRPORTS, LLC, a Delaware limited liability company (“TCM”), with reference to the following:
RECITALS
WHEREAS, City and TCM (f/k/a Westfield Concession Management, LLC and Westfield Airports, LLC) heretofore entered into that certain Los Angeles International Airport Terminal Commercial Manager Concession Agreement (Board File No. LAA-8640) dated June 22, 2012, as amended by that certain First Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement (Board File No. LAA-8640A) dated June 9, 2016 between City and TCM, by that certain Second Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement in the form of a letter agreement (Board File No. LAA-8640B) dated April 22, 2020 and entered into on May 6, 2020 between City and TCM, by that certain Third Amendment to Los Angeles International Airport Terminal Commercial Management Concession Agreement in the form of a letter amendment (Board File No. LAA-8640C) dated September 30, 2020 and entered into on December 30, 2020 between City and TCM, by that certain Fifth Amendment (the “Fifth Amendment”) to Los Angeles International Airport Terminal Commercial Management Concession Agreement (Board File No. LAA-8613E) dated December 15, 2021. Unless otherwise defined in this Sixth Amendment or the context otherwise requires, the capitalized terms used in this Sixth Amendment shall have the same respective meanings as ascribed to such terms in the Agreement; and “Right to Request Limited Concession Sales or Services.
WHEREAS, TCM currently occupies space in Terminals 1, 3 and 6 pursuant to the Agreement; and
WHEREAS, the parties hereto desire to amend said Agreement; and
NOW THEREFORE, the parties hereto, for and in consideration of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties hereto, do mutually agree that the Agreement, BE AMENDED AS FOLLOWS:
Section 1 – Amendment to Section 3.3.3. Section 3.3.3 to the Agreement is hereby amended and restated to read in its entirety as follows:
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Notwithstanding anything to the contrary in this Agreement, either Party may invite the other Party to enter into or participate in a concession agreement within the Areas with economic terms, including but not limited to rental terms, such as Minimum Annual Guaranteed Rent, Percentage Rent, investment, or tenant improvement allowances, that may vary from those that would otherwise be applicable under this Agreement (“Limited Concession”), provided that each such Limited Concession: (i) is intended to increase ACDBE participation and/or participation from similar businesses with different certifications such as Minority Business Enterprise and Women-Owned Business Enterprise Requirements; (ii) is in a space that is vacant and/or an impaired existing space operating at or above thirty percent (30%) occupancy cost during any twelve (12) month period despite good faith efforts to recover performance; and (iii) is subject to separate Board approval in its sole discretion. The Parties shall negotiate in good faith regarding the terms of such Limited Concession.
Section 2 – Amendment to Section 10.3. Section 10.3 is hereby added to the Agreement as follows:
“Notwithstanding Sections 10.1 and 10.2, in the event that a gate, gate hold room or area of the Airport is permanently closed due to the operational needs of the City or an airline and such closure negatively impacts a concession space(s), TCM shall have the right to request to return the impacted space(s) without any monetary or legal penalty to TCM, provided that any request to return space is subject to approval by the CEO or his or her designee. In addition, if the City decides to replace the identified impacted concession space(s), TCM shall have the right of first refusal for any replacement unit(s) for ninety (90) days. Nothing herein shall be construed to limit City’s right to terminate for convenience under Section 9.”
Section 3 – TCM’s Representations. As a material inducement to City’s entering into this Sixth Amendment, TCM hereby represents, warrants and covenants to City as follows: (1) City is not in default in the performance of any of the terms or provisions of the Agreement; (2) City has duly delivered the Premises to TCM in accordance with the terms of the Agreement, and there exists no unresolved disputes or claims by TCM in connection with the Agreement (including, without limitation, for items of construction, repair or capital expenditure for which City is liable or obligated to pay for or to perform in connection with the Agreement); (3) TCM neither has nor claims any defenses, setoffs or credits against the payment of Rent payable under the Agreement; and (4) City shall be entitled to rely on the accuracy of the foregoing representations, warranties and covenants, and TCM hereby releases City from any claims relating to the foregoing matters.
Section 4 – Miscellaneous. This Sixth Amendment may be executed in counterparts, including counterparts that are manually executed and counterparts that are in the form of electronic records and are electronically executed. An electronic signature means a signature that is executed by symbol attached to or logically associate with a record and adopted by a party with the intent to sign such record, including facsimile or e-mail signatures. All executed counterparts shall constitute one amendment, and each counterpart shall be deemed an original. The parties hereby acknowledge and agree that electronic records and electronic signatures, as well as facsimile signatures, may be used in connection with the execution of this Sixth Amendment and electronic signatures, facsimile signatures or signatures transmitted by electronic mail in so-called PDF format shall be legal and binding and shall have the same full force and effect as if a paper original of this Sixth Amendment had been delivered that had been signed using a handwritten signature.
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All parties to this Sixth Amendment (i) agree that an electronic signature, whether digital or encrypted, of a party to this Sixth Amendment is intended to authenticate this writing and to have the same force and effect as a manual signature; (ii) intended to be bound by the signatures (whether original, faxed, or electronic) on any document sent or delivered by facsimile or electronic mail or other electronic means; (iii) are aware that the other party(ies) will rely on such signatures; and, (iv) hereby waive any defenses to the enforcement of the terms of this Sixth Amendment based on the foregoing forms of signature. If this Sixth Amendment has been executed by electronic signature, all parties executing this document are expressly consenting, under the United States Federal Electronic Signatures in Global and National Commerce Act of 2000 (“E-SIGN”) and the California Uniform Electronic Transactions Act (“UETA”) (California Civil Code §1633.1 et seq.), that a signature by fax, e-mail, or other electronic means shall constitute an Electronic Signature to an Electronic Record under both E-SIGN and UETA with respect to this specific transaction.
Section 5 – Full Force and Effect. Except as amended and modified as set forth in this Sixth Amendment, the terms and provisions of the Agreement remain the same and in full force and effect.
[Signatures Appear on Following Page]
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IN WITNESS WHEREOF, City has caused this Sixth Amendment to be executed on its behalf by the Chief Executive Officer, or his or her authorized signatory, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
APPROVED AS TO FORM: |
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CITY OF LOS ANGELES |
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Hydee Feldstein Soto, City Attorney |
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By: |
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Chief Executive Officer |
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By: |
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City of Los Angeles, Department of Airports |
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Deputy/Assistant City Attorney |
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Date: |
Mar 13, 2023 |
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“TCM” |
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ATTEST: |
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URW AIRPORTS, LLC |
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By: |
/s/ Andrea Kahn |
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By: |
/s/ Brian Petrow |
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Name: |
Andrea Kahn |
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Name: |
Brian Petrow |
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Title: |
Assistant Secretary |
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Title: |
SVP, Airport Operations |
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ACKNOWLEDGEMENT OF GUARANTOR
The undersigned, URW WEA LLC, a Delaware limited liability company (herein, “Guarantor”), who is the successor by merger to Westfield America, Inc., a Missouri corporation, hereby represents, acknowledges, and agrees as follows: (1) Guarantor has reviewed the foregoing Sixth Amendment to the Los Angeles International Airport Terminal Commercial Management Concession Agreement for the Tom Bradley International Terminal, Terminal 2 and the Midfield Satellite Concourse, between the City of Los Angeles and URW Airports, LLC (“Sixth Amendment”); (2) Guarantor is the guarantor of TCM’s obligations under the Agreement described in the Sixth Amendment pursuant to that certain Guaranty Agreement executed concurrently with the execution of the Agreement (the “Guaranty”); (3) Guarantor approves of TCM’s execution of the Sixth Amendment and agrees with its terms; and (4) the Guaranty is hereby reaffirmed, and the Guaranty is and remains in full force and effect and continues to guarantee the prompt payment and performance by TCM of all of the terms of the TCM Agreement, as amended. This Acknowledgement of Guarantor has been executed as of the date of execution of the Sixth Amendment by TCM.
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“GUARANTOR” |
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ATTEST: |
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URW WEA LLC |
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By: |
/s/ Hyura Choi |
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By: |
/s/ John Kim |
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Name: |
Hyura Choi |
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Name: |
John Kim |
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Title: |
Assistant Secretary |
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Title: |
Assistant Secretary |
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Exhibit 4.20.7
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CONFORMED COPY |
BOARD FILE NOS. 2013 x |
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LAA-8542A-6 |
LAA-8552A-6 |
LAA-8640G |
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LAA-8546A-6 |
LAA-8586A-6 |
LAA-8843E |
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LAA-8547A-6 |
LAA-8587A-7 |
LAA-8964E |
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LAA-8548A-6 |
LAA-8549F |
LAA-9094C |
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LAA-8550A-6 |
LAA-8589F |
LAA-9208A |
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LAA-8551A-6 |
LAA-8613I |
LAA-9238A |
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LAX Van Nuys City of Los Angeles Karen Bass Board of Airport Karim Webb Matthew M. Johnson Vanessa Aramayo John Ackerman |
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RESOLUTION NO. 28084 WHEREAS, on recommendation of Management, there were presented for approval, Amendments to the In-Terminal Concession Agreements at Los Angeles International Airport listed in Exhibit 1, attached hereto and made part hereof; and there was presented for adoption, the Los Angeles International Airport and Van Nuys Airport Concessions Standard Operating Procedures document, also attached hereto and made part hereof, that includes the new Pricing Policy; and WHEREAS, the concession agreements listed in Exhibit 1 represent in-terminal food and beverage, and retail at Los Angeles International Airport (LAX). The amendment to said concession agreements will remove certain sections from the agreements that will be incorporated into a new LAX and Van Nuys Airport Concessions Standard Operating Procedures (Concessions SOP) rules and regulations document; and WHEREAS, the new Concessions SOP will include rules and procedures for concessions pricing, payment due dates, security guarantees, as well as create a new distressed concessions program, all of which are designed to improve the economics for in-terminal concession partners of Los Angeles World Airports (LAWA) that continue to struggle with lower passenger volumes and higher costs pressures; and WHEREAS, many factors that impact concession operating economics have changed since said agreements were executed and unsustainable post-pandemic conditions - driven by rising labor and costs of goods sold, high interest rates, and inflation - are coupled with lagging enplanement growth. The labor costs alone at LAX have risen over since the agreements were first executed. In addition, LAX passenger traffic has fallen post COVID-19, with enplanements down and sales 10% below calendar year 2019 levels. The impact of those factors has created unsustainable economics for the food and beverage and retail concession operators at LAX; and WHEREAS, when the original concession agreements were executed, the living wage and health benefits were set at per hour, and per hour if health benefits were not provided. The living wage and health benefits hourly rates that became effective July 1, 2024 are $19.28 and per hour if health benefits are not provided. The Los Angeles City Council proposed an ordinance to increase the living wage which, if approved, will be effective February 1, 2025, and increases the hourly rate to and then again increases the wages to on July 1 with increases annually through July 1, 2028 capping at . The new proposed ordinance also has a mandatory health benefit of per hour to be adjusted annually; and WHEREAS, to address the challenges that lower revenues and higher costs are having on concessionaires at LAX, LAWA staff reviewed the concession agreements and identified several requirements that can be adjusted without impacting the validity of the Request for Proposals that resulted in the agreement awards. Following are those items: · Airport Concessions Pricing Policy (removing the cap on all items except bottled water, feminine hygiene products, over the counter medication, and baby products) · Hours of Operation (currently all concessions must be opened one hour before the first flight departs and one hour after the last flight departs) · Distressed Concessions Program to address struggling concessionaires on individual basis; and |
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Resolution No. 28084 |
- 2 - |
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WHEREAS, the in-terminal food and beverage and retail concession agreements currently cap prices that concessionaires can charge at above street pricing. When the Airport Concessions Pricing Policy was originally implemented in 2010, an 18% premium was considered sufficient to ensure profitability for concession operators. The 80% increase in labor costs and 10% decline in concession sales is creating unsustainable operating margins for those concessionaires; and WHEREAS, amending the Airport Concessions Pricing Policy to allow for the concessionaires to set their pricing will allow more flexibility for concessionaires to respond to rising business costs. It will remove the requirement for above street pricing and allow for open market pricing on all items except essential products like bottled water, feminine hygiene products, over-the-counter medication, and baby products which will remain capped above street prices; and WHEREAS, in addition, LAWA proposed to allow flexibility with some administrative components of the leases that will alleviate some of the costs concessionaires incur. For example, rules may be changed to allow less costly financial instruments to be used to guarantee rents. The due dates for rents may also be amended to allow rents to be paid at the end of the month rather than in advance of actual sales as is currently the case. Further, LAWA is creating a distressed concessions relief program that will allow for any concessionaire that can show a direct operating loss over a 12-month period within the previous 18 months the ability to apply for consideration of temporary assistance such as repayment plans or other restructuring of terms as may be approved by the Board of Airport Commissioners on a case-by-case basis, to be determined based on the need; and WHEREAS, in addition, the following non-revenue-related, operational items are to be moved from the concession agreements into the new Concessions SOP that LAWA’s Chief Executive Officer can adjust globally, rather than amending each lease individually; thus, allowing for more flexibility in LAX operational changes: · Utility payment structure; · Deliveries, Access and Coordination; · Rules for Refuse Removal; · Airport Operations (including items like parking on the airfield, terminal operating hours); · Pest Control rules and regulations; · Airport Security; and · Alternative Fuel Vehicle Requirement Program; and WHEREAS, the Concessions SOP will be incorporated into the future amendment to the LAX Rules and Regulations; and WHEREAS, actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606; NOW, THEREFORE, BE IT RESOLVED that the Board of Airport Commissioners adopted the staff report; further adopted staff’s determination that this item, involving a continuing administrative activity, is exempt from the California Environmental Quality Act (CEQA) requirements pursuant to Article II, Section 2.f of the Los Angeles City CEQA Guidelines, and that general policy procedure making is exempt from CEQA requirements pursuant to Article II, Section 2.n of the Los Angeles City CEQA Guidelines; approved the Amendments to the In-Terminal Concession Agreements at Los Angeles International Airport listed in Exhibit 1, attached hereto and made part hereof; further adopted the Los Angeles International Airport and Van Nuys Airport Concessions Standard Operating Procedures document, also attached hereto and made part hereof, that includes the new |
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Resolution No. 28084 |
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Pricing Policy; and authorized execution of the Amendments to said In-Terminal Concession Agreements at Los Angeles International Airport. o0o I hereby certify that this Resolution No. 28084 is true and correct, as adopted by the Board of Airport Commissioners at its Special Meeting held on Thursday, December 12, 2024. /s/ Grace Miguel Grace Miguel – Secretary BOARD OF AIRPORT COMMISSIONERS Approved by Los Angeles City Council on February 4, 2025 Attachments: · Exhibit 1 - List of In-Terminal Concession Agreements · Los Angeles International Airport & Van Nuys Airport Concessions Standard Operating Procedures |
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Exhibit 1 to Resolution 28084 (page 1 of 1) |
List of In-Terminal Concession Agreements
Concessionaire Name |
Agreement No. |
Amendment No. |
Areas USA LAX, LLC |
LAA-8964 |
5th |
Areas USA LAX, LLC |
LAA-8546A |
6th |
Areas USA LAX, LLC |
LAA-8547A |
6th |
Areas USA LAX, LLC |
LAA-8548A |
6th |
Areas USA LAX, LLC |
LAA-8843 |
5th |
Areas USA LAX, LLC |
LAA-9238 |
1st |
Crews Hospitality, LLC |
LAA-9094 |
3rd |
DN Dakota-JME LAX 8549 Pucks, LLC |
LAA-8549 |
6th |
DN Dakota-JME LAX 8589 Farmers, LLC |
LAA-8589 |
6th |
First Class Vending, Inc. |
LAA-9208 |
1st |
Host International, Inc. |
LAA-8587A |
7th |
Host International, Inc. |
LAA-8586A |
6th |
URW Airports, LLC |
LAA-8613 |
9th |
URW Airports, LLC |
LAA-8640 |
7th |
Hudson-Magic Johnson Enterprises-Concourse Ventures, LLC |
LAA-8550A |
6th |
LAX Retail Magic 2 JV |
LAA-8551A |
6th |
LAX Retail Magic 3-4 JV |
LAA-8552A |
6th |
LAX Retail Magic 3-4 JV |
LAA-8542A |
6th |
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Attachment to Resolution 28084 (page 1 of 23) |
Los Angeles International Airport & Van Nuys Airport
Concessions Standard Operating Procedures
January 1, 2025
1
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Attachment to Resolution 28084 (page 2 of 23) |
Table of Contents
1. |
Applicability |
4 |
2. |
Definitions |
4 |
3. |
Public Address System |
5 |
4. |
Wireless Communication |
5 |
5. |
Pricing Policy for Concessionaires at Los Angeles World Airport and Van Nuys Airport |
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a. Introduction |
5 |
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b. Pricing Flexibility |
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c. Price Display |
6 |
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d. Pricing Reporting |
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e. Market Basket |
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f. Pricing Compliance |
7 |
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g. Conclusion |
7 |
6. |
Utilities |
8 |
7. |
Other Fees & Charges |
8 |
8. |
Hours of Operation |
8 |
9. |
Deliveries; Access & Coordination |
9 |
10. |
Removal of Garbage & Refuse |
9 |
11. |
Refuse Removal Costs |
10 |
12. |
Prohibited Acts |
11 |
13. |
Taxes |
12 |
14. |
Licenses & Permits |
13 |
15. |
Compliance with Laws |
13 |
16. |
Airport Operations |
14 |
17. |
Pest Control |
14 |
18. |
Disabled Access |
14 |
19. |
Child Support Orders |
14 |
20. |
Business Tax Registration |
15 |
21. |
Non-Discrimination & Affirmative Action Provisions |
15 |
22. |
Security |
16 |
23. |
Visual Artists’ Rights Act |
17 |
24. |
Living Wage Ordinance |
18 |
25. |
Service Contract Worker Retention Ordinance |
19 |
26. |
Equal Benefits Ordinance |
19 |
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Attachment to Resolution 28084 (page 3 of 23) |
27. |
Contractor Responsibility Ordinance |
20 |
28. |
First Source Hiring Program for Airport Employees |
20 |
29. |
Environmentally Favorable Options |
20 |
30. |
Municipal Lobbying Ordinance |
21 |
31. |
Labor Peace Agreement |
21 |
32. |
Alternative Fuel Vehicle Requirement Program |
21 |
33. |
City Events |
21 |
Exhibits
1. |
Pricing Policy: Product/Menu/Service Report |
2. |
Pricing Policy: Market Basket Report |
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Attachment to Resolution 28084 (page 4 of 23) |
1. Applicability
Concession Entities (as defined below) at Los Angeles International Airport or Van Nuys Airport shall comply with these procedures. Concession Entities (including but not limited to Terminal Commercial Managers) shall cause their concessionaires and sub-concessionaires (if any) to comply with these procedures.
2. Definitions
For purposes of these procedures, the following definitions shall apply:
“Concession” means any operation which provides, sells, rents or distributes goods, services, food, beverages, merchandise, or other products to the public at Los Angeles International Airport or Van Nuys Airport, including but not limited to: retail stores, food and beverage establishments, personal service providers, passenger service businesses, advertising displays, vending machines, entertainment facilities, or other similar revenue-generating operations intended to serve Airport patrons; provided, however, that “Concession” shall not include: (i) airlines or other air carriers (except for airline lounges), (ii) ground transportation providers, (iii) rental car services, (iv) parking operations, or (v) governmental or security operations.
“Concession Entity” shall include: (i) terminal concession managers (“TCM”) with terminal commercial management concession agreements with LAWA; (ii) concessionaires or sub-concessionaires at Los Angeles International Airport or Van Nuys Airport, (whether through concession agreements with LAWA or with TCM or otherwise); or (iii) any other individual or entity that is in possession of space that is intended to be used as a Concession at Los Angeles International Airport or Van Nuys Airport.
“Concession Entity’s Agreement” shall mean: (i) for Concession Entities with an agreement with LAWA, such Concession Entity’s respective agreement with LAWA; or (ii) in the case of Concession Entities with no direct agreement with LAWA, their agreement to the extent approved by LAWA, provided that in case of conflicts, the terms of these procedures and LAWA’s consent shall prevail, in that order. For the avoidance of doubt, for TCM’s concessionaires, Concession Entity’s Agreement shall mean Unit Concession Agreement.
“Executive Director” shall mean the general manager or Chief Executive Officer of LAWA.
“LAWA” or “Los Angeles World Airports” shall mean the City of Los Angeles Department of Airports.
“Premises” or “Unit” shall mean the respective space of each Concession Entity, as defined in their respective agreement with LAWA (or in the case of Concession Entities with no direct agreement with LAWA, their agreement approved by LAWA).
Unless the context requires otherwise, capitalized terms shall have their meanings as set forth in each Concession Entity’s Agreement provided, however, that if any definition in Concession Entity’s Agreement conflicts with a definition in these procedures, the definition in these procedures shall control for purposes of these procedures.
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Attachment to Resolution 28084 (page 5 of 23) |
3. Public Address System
City shall have the right, in its sole discretion, to install one (1) or more public address system speakers in each Unit for announcing flight arrivals and departures and other Airport information. Concession Entity shall not install any public address, paging, or other similar audio system in the Premises (including any Unit) at any time, without the prior written approval of the Executive Director (in the Executive Director’s sole discretion). Any installation of a music system, audio/video display or television system in the Premises (including any Unit) shall require the prior written approval of the Executive Director, in his or her sole discretion; provided that no such system shall interfere with the City’s public address system.
4. Wireless Communication
Without the prior written consent of the Executive Director, in his or her reasonable discretion, Concession Entity shall not install or use any wireless workstations, access control equipment, wireless internet servers, transceivers, modems or other hardware that transmit or otherwise access radio frequencies. Notwithstanding the prior consent of the Executive Director for the installation of any such system or equipment, the Executive Director shall have the absolute right, upon thirty (30) days’ prior written notice, to require the removal of any such system or equipment (at Concession Entity’s or the concessionaire’s sole expense) in the event that such system or equipment interferes with any present or future systems or equipment installed by City at the Airport.
5. Pricing Policy for Concessionaires at Los Angeles World Airport and Van Nuys Airport
Effective January 1, 2025
a. Introduction
Los Angeles World Airports (LAWA) is committed to providing a diverse and competitive range of retail, food and beverage and service options for its passengers and visitors. To achieve this goal, LAWA has adopted a flexible pricing policy that allows concession entities to set their own prices for the products, menu items and services they offer at their concessions, with the exception of the Market Basket items, and subject to certain requirements and limitations. This document outlines the procedures of the Pricing Policy, which will take effect on January 1, 2025.
b. Pricing Flexibility
Under the Pricing Policy, concession entities have the freedom to determine the prices of their retail products, food and beverage menu items and services, based on their own business strategies, market conditions, customer preferences, and operational costs. Concession Entities are encouraged to offer competitive and reasonable prices that reflect the value and quality of their products and services, and that meet the expectations and satisfaction of the customers.
As part of the pricing policy, LAWA has established a Market Basket of common retail products and food and beverage menu items that are offered by multiple concession entities at the airports. The Market Basket serves as a benchmark for comparing and evaluating the prices of the Concession Entities and ensuring that they are within a reasonable range.
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Attachment to Resolution 28084 (page 6 of 23) |
LAWA will update the Market Basket periodically, based on the availability and demand of the products and menu items, and the changes in the market conditions and consumer preferences.
c. Price Display
Prices must be conspicuously displayed on all items for purchase, to the satisfaction of LAWA. Displays will include the name/description of the item for purchase and its sale price. Other specifics may be required on a case-by-case basis.
d. Pricing Reporting
To ensure transparency and accountability, Concession Entities are required to submit a pricing report to LAWA once a year, by January 1st, (with the exception of the Market Basket items, see Market Basket section E below) and every time a concession entity changes their menu, product list, service or the price of an item or service. The pricing report should include the following information for each product, menu item or service offered at the concession:
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The name and description of the product, menu item or service; |
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The unit size or portion size of the product or menu item; |
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The previous price of the product, menu item or service, if applicable; and, |
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The date of the last price change, if applicable. |
The pricing report must be submitted electronically to LAWA’s Commercial Development email account, concessionsreporting@lawa.org, using the template and format provided by LAWA (Exhibit 1). LAWA will review the pricing report and provide receipt of the report. LAWA reserves the right to request additional information or clarification from the Concession Entity. LAWA also reserves the right to reject any price of a Market Basket item that is deemed inconsistent with the Policy.
e. Market Basket
This section outlines the pricing procedures for specific categories of items, ensuring that prices are competitive and fair for consumers while allowing for a reasonable profit margin. These categories are:
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Bottled Water |
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Over-the-counter medication |
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Feminine hygiene products |
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Baby products |
The Concession Entity will price these items no more than above street pricing. Street pricing is a price charged for an identical/comparable good and at a comparable business, which is a similar non-airport business located in a shopping center or commercial district within a 25-mile radius from the airport, with a similar style of service, product offering and menu.
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Attachment to Resolution 28084 (page 7 of 23) |
For the designated items in each of the above categories, every Concession Entity must submit a comprehensive Market Basket pricing report for review and approval by LAWA on a QUARTERLY basis. All prices will be reviewed and approved by LAWA prior to implementation. The Market Basket pricing report must be completed using the template and format provided by LAWA (Exhibit 2), which includes:
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At least three (3) comparable businesses (with full name and address) with corresponding prices for each Market Basket item for purchase. |
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The calculation to demonstrate the proposed pricing adheres to the Policy. |
The Market Basket pricing report must be submitted electronically to LAWA’s Commercial Development’s email account, concessionsreporting@lawa.org.
Quarterly submission due dates for the Market Basket pricing report, for each year, are:
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January 1 |
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April 1 |
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July 1 |
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October 1 |
If the date falls on a weekend (Saturday or Sunday) or a City-observed holiday, the due date will be the following business date.
f. Pricing Compliance
LAWA will monitor and enforce the compliance of the concession entity with the Pricing Policy, using various methods, such as price surveys, audits, inspections, and customer feedback. LAWA will notify the concession entity in writing of violations of this Policy. Concession entity must correct prices to conform to the pricing criteria within seven (7) calendar days of receipt of the Notice of Pricing Violation. If any City-initiated price comparisons disclose a violation of the requirements of this Agreement, the cost of such City-initiated price comparisons will be borne by the concession entity, and upon the delivery of an invoice from City, the concession entity must pay the same to City, plus fifteen percent of such cost incurred as an administrative fee (but in no event less than per occurrence or such greater amount as may be reasonably adjusted by the Chief Executive Officer from time to time) (herein, the “Administrative Fee”), within thirty (30) days of receipt of City’s invoice. LAWA will take appropriate actions against any concession entity that fails to comply with the Pricing Policy, such as issuing warnings, imposing fines, or terminating the concession agreement, depending on the severity and frequency of the violation.
g. Conclusion
The Pricing Policy for concession entities at LAWA is designed to promote a fair and competitive environment for the retail, food and beverage and service concessions at the airports, and to enhance the customer experience and satisfaction. Concession entities are expected to adhere to the pricing policy and cooperate with LAWA in implementing and maintaining the pricing policy. LAWA will review and revise the pricing policy as needed, to ensure that it meets the needs and interests of all the stakeholders.
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Attachment to Resolution 28084 (page 8 of 23) |
6. Utilities
Utilities with respect to the Premises (including each Unit therein), including electricity, gas and water, shall be separately metered as to the Premises (and as to each Unit therein), at Concession Entity’s expense. If Executive Director agrees that it is impossible to separately meter a given utility with respect to all or a portion of a given Unit/Premises, then Concession Entity shall pay to City as Additional Rent a reasonable and non-discriminatory pro-rata amount of said utility invoice which includes said Unit/Premises, based upon Executive Director’s good faith estimate of Concession Entity’s share thereof Executive Director’s estimate may be based on the square footage of Concession Entity’s Premises compared with the square footage of the area serviced, or upon some other reasonable and non-discriminatory criteria designated by Executive Director in Executive Director’s good faith business judgment. City shall invoice Concession Entity for amounts due and Concession Entity shall pay the same on demand of receipt of City’s invoice. TCM shall have the right to pass through all of such charges for utilities to its Concessionaires but without any administrative mark-up or profit.
7. Other Fees & Charges
If City has paid any sum or sums or has incurred any obligations or expense which Concession Entity had agreed to pay or reimburse City for, or if City is required or elects to pay sum(s) or ensure obligation(s) or expense(s) by reason of the failure, neglect or refusal of Concession Entity to perform or fulfill any of the conditions, covenants or agreements contained in the Agreement, or as a result of an act or omission of Concession Entity contrary to said conditions, covenants, and agreements, Concession Entity shall pay the sum(s) so paid or the expense(s) so incurred (including all interest, costs, damages and penalties, and the same may be added to any installment of the fees and charges thereafter due hereunder), plus the Administrative Fee, as Additional Rent recoverable by City in the same manner and with like remedies applicable to any other component of Rent hereunder.
8. Hours of Operation
The Unit/Premises (including the Units within the Premises) shall be open for business every day, three hundred sixty-five (365) days per year. Concession Entity shall operate the Unit/Premises within a Facility in accordance with the following minimum hours of operation (“Minimum Hours of Operation”): (i) if such Unit is located on the departure level of a Facility, Minimum Hours of Operation shall be at least one hour before the first scheduled departure from such Facility until the last departure of the day from such Facility, without exception, and (ii) if such Unit is located on the arrival level of a Facility, Minimum Hours of Operation shall be from the first scheduled arrival at such Facility to at least an hour after the last scheduled arrival at such Facility, without exception. Except in connection with the expiration or earlier termination of Concession Entity’s Agreement, Concession Entity shall not vacate or abandon the Premises (including any Unit therein) at any time.
Executive Director May Alter Hours. Executive Director may, on 24-hour notice to Concession Entity to temporarily or permanently modify the Minimum Hours of Operation for any Unit/Premises. Concession Entity shall comply with modifications. Upon the written request of Concession Entity, Executive Director may, from time to time, authorize a later opening or earlier closing time for any Unit/Premises, provided Executive Director first finds that Concession Entity has submitted adequate justification therefor; provided, however, decreases in passenger traffic shall not be considered adequate justification.
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Attachment to Resolution 28084 (page 9 of 23) |
9. Deliveries; Access & Coordination
To the extent airside access rights are granted to Concession Entity, Concession Entity shall comply with all applicable Rules and Regulations and Laws in order to obtain clearance for airside access. Except and to the extent expressly directed by Executive Director in writing, all deliveries of products, goods, merchandise, supplies, and other materials to and from the Premises (including any Unit therein) and trash removal from the Premises (including any Unit therein) necessary to the operation of the Premises (or any Unit therein) shall be conducted through the airside locations (for TCM and its concessionaires it will be designated in the DIP Approval), as such airside locations may be changed by Executive Director from time to time upon written notice to Concession Entity. Concession Entity acknowledges and agrees that all such deliveries by Concession Entity shall be in conformance with the Rules and Regulations and security requirements in effect with respect to airside operations at the Airport, and Concession Entity shall bear all costs incurred by them in connection with their respective compliance. Concession Entity shall make (and shall cause its Concessionaires to make) deliveries only within the times and at locations authorized by Executive Director. Concession Entity shall require that all airside deliveries be made by vehicles and drivers qualified and permitted by City to drive over airside access roadways. Delivery hours and locations may be specified and changed from time to time at the sole discretion of Executive Director.
10. Removal of Garbage & Refuse
Concession Entity shall strictly comply with the Rules and Regulations and applicable Laws regarding the disposition of trash, rubbish, refuse, garbage and recycled materials, shall regularly remove all trash, rubbish, refuse, garbage and recycled materials from the Premises (including any Unit therein) to the appropriate garbage or refuse disposal area or recycled materials area designated by Executive Director from time to time and shall remove the accumulation of all such material in such area or areas at frequent intervals. Prior to removal to such garbage or refuse disposal area, Concession Entity shall (TCM shall require its Concessionaires to) store all trash and other waste in covered, odor, leak and vermin proof containers (including recycling containers), such containers to be kept in areas not visible to members of the public. Accumulation of trash, boxes, cartons, barrels or other similar items shall not be permitted in any public area at Airport.
LAWA Waste Reduction and Removal. Concession Entity shall comply with current and future Rules and Regulations and other regulations promulgated by the City of Los Angeles regarding the reduction and recycling of trash and debris. Without limiting the generality of the foregoing, Concession Entity shall participate in meeting the Airport’s mandated goal of seventy percent waste diversion by 2015, by developing and implementing a program to remove as much recyclable material from the waste stream as possible (a “Recycling Program”). Any Recycling Program shall consist of at a minimum mixed office paper and cardboard recycling, beverage container recycling in employee break areas and public areas if applicable, diversion through 2-sided copying, reuse of pallets, utilization of minimum thirty percent (30%) recycled content copy paper and other recycled content paper goods. TCM shall prepare and submit to City a written description of such Recycling Program with respect to the Premises (and each Unit therein) as part of the TCM’s Business and Operations Plan. TCM shall incorporate reasonable revisions to such Recycling Program required by City. If Concession Entity’s corporate management has a written policy on waste reduction and sustainability, Concession Entity shall provide a copy of such policy to City at the notice address set forth in the Basic Information, Attention: LAWA Recycling Coordinator.
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Attachment to Resolution 28084 (page 10 of 23) |
Concessionaire shall provide a quarterly report to the LAWA Recycling Coordinator (in the form and format prescribed by City) detailing the volume and type of materials diverted from the waste stream in accordance with such Recycling Program. Such quarterly report shall also describe other waste minimization practices, such as use of compostable utensils and dishware, reuse of materials and equipment, salvaging of materials and recycling of construction and demolition waste. Without limiting the generality of City’s other access and inspection rights under Concession Entity’s Agreement, City shall have the right to access the Premises during regular business hours to review and verify Concessionaire’s compliance with its Recycling Program and other waste minimization practices. LAWA discourages the use of polystyrene foam including one-time use clamshell food containers, bowls, plates, trays, cartons, and cups in which food or beverages are placed or packaged. In addition, restaurants and food vendors are required to use biodegradable or compostable food service ware unless an affordable alternative is not available. TCM shall provide periodic reports as outlined in the Business and Operations Plan to the LAWA Recycling Coordinator (in the form and format prescribed by City) detailing the volume and type of materials diverted from the waste stream in accordance with such Recycling Program. Such reports shall also describe other waste minimization practices, such as use of compostable utensils and dishware, reuse of materials and equipment, salvaging of materials and recycling of construction and demolition waste. Without limiting the generality of City’s other access and inspection rights under Concession Entity’s Agreement, City shall have the right to access the Premises during regular business hours to review and verify Concession Entity’s compliance with its Recycling Program and other waste minimization practices. LAWA discourages the use of polystyrene foam including one-time use clamshell food containers, bowls, plates, trays, cartons, and cups in which food or beverages are placed or packaged. In addition, restaurants and food vendors are required to use biodegradable or compostable food service ware unless an affordable alternative is not available.
Coordinated Delivery and Trash/Re-Cycling Removal System. Concession Entity acknowledges that the Executive Director may implement coordinated systems for airside access deliveries and Trash/Recycling Removal and that such coordinated systems may (a) be operated by one or more third-party contractors, (b) require the use of a designated transfer locations, (c) require the payment or reimbursement by Concession Entity, its Concessionaires and other participants of costs and expenses, and any such amounts payable or reimbursable if paid to City shall be Additional Rent hereunder, or may be payable to such third party contractors pursuant to separate agreements with such contractors; and (d) Concession Entity understands and acknowledges that, if implemented, participation with the coordinated systems may be mandatory. Concession Entity acknowledges that such coordinated systems may not become effective until after the commencement of the Primary Term of Concession Entity’s Agreement. Concession Entity shall be responsible for all deliveries until such time as Executive Director delivers written notice to Concession Entity that such systems are being implemented. TCM shall be permitted to pass through all of such costs and expenses to its Concessionaires but without any administrative markup or profit.
11. Refuse Removal Costs
Concession Entity shall comply with the provisions of Section: Deliveries; Access and Coordination, with regard to the disposition of trash and garbage, waste reduction and recycling. City may designate garbage or refuse disposal areas at each Facility for use by concessionaires. City reserves the right to charge, and in such event, Concession Entity shall pay to City as Additional Rent a reasonable and non-discriminatory pro-rata amount of the cost for segregation and/or removal of garbage and refuse from designated garbage or refuse disposal areas based upon Executive Director’s good faith estimate of Concession Entity’s (and its Concessionaires’) share thereof. Executive Director’s estimate may be based on Concession Entity’s Premises square footage compared with the square footage of the area serviced, or upon some other reasonable and not unjustly discriminatory criteria designated by Executive Director in Executive Director’s good faith business judgment.
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Attachment to Resolution 28084 (page 11 of 23) |
City shall invoice Concession Entity monthly for amounts due and Concession Entity shall pay the same to City as Additional Rent, on demand, of receipt of City’s invoice. TCM shall have the right to pass through all of such charges for refuse removal to its Concessionaires but without any administrative mark up or profit.
12. Prohibited Acts
Concession Entity shall not do or permit to be done anything specified in the Sections below. Specifically, Concession Entity shall not: Interfere with Access. Do anything which may interfere with free access and passage in the Premises, the Common Areas adjacent thereto (including, without limitation, the elevators, escalators, streets or sidewalks of the Airport), or any restricted non-Common Areas of the Airport, or hinder security, police, fire fighting or other emergency personnel in the discharge of their duties, or hinder access to utility, heating, ventilating or air-conditioning systems, or portions thereof, on or adjoining the Premises or the Common Areas adjacent thereto. Without limiting the generality of the foregoing, Concession Entity shall not install any racks, stands or other display of merchandise or trade fixtures at the Airport outside of the Premises without the prior written consent of Executive Director.
Interfere with Systems. Concession Entity shall not do anything which may interfere with the effectiveness of utility, heating, ventilating or air-conditioning systems or portions thereof in or adjoining the Premises (including lines, pipes, wires, conduits and equipment connected with or appurtenant thereto) or interfere with the effectiveness of elevators or escalators in or adjoining the Premises, or overload any floor in the Premises.
Permit Smoking Where Prohibited. Concession Entity shall not do anything contrary to the Board of Airport Commissioners’ policy, City ordinances, or Section 41.50 of the Los Angeles Municipal Code, which prohibits smoking.
Install Unauthorized Locks. Concession Entity shall not place any additional lock of any kind upon any window or interior or exterior door in any Unit, or make any change in any existing door or window lock or the mechanism thereof, unless a key therefore is maintained in such Unit, nor refuse, upon the expiration or sooner termination of Concession Entity’s Agreement, to surrender to Executive Director any and all keys to the interior or exterior doors in, and on each Unit of the Premises, whether said keys were furnished to or otherwise procured by Concession Entity, and in the event of the loss of any keys furnished by Executive Director, Concession Entity shall pay City, on demand, the cost for replacement thereof, and the cost of re-keying City’s locks. Concession Entity shall install lock boxes in all Units with copies of keys, as required by City and comply with LAWA emergency access requests.
Noise and Lights; Other Interference. Concession Entity shall not install loudspeakers, televisions, video monitors, sound systems, audio players, radios, flashing lights or other devices in the Premises (including any Unit therein) or used in a manner so as to be heard or seen outside of such Premises (or such Unit) without the prior written consent of Executive Director (including obtaining, and complying with, all applicable City construction approval conditions). Concession Entity shall conduct its, and require its Concessionaires to conduct their, operations on the Premises in such manner as to reduce as much as is reasonably practicable, considering the nature and extent of said operations, any and all activities which interfere unreasonably with the use of other premises adjoining the Premises at the Airport, including, but not limited to, the emanation from the Premises of noise, vibration, movements of air, fumes, and odors.
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Attachment to Resolution 28084 (page 12 of 23) |
Increase Liability. Concession Entity shall not do any act or thing upon any Unit which will invalidate, suspend or increase the rate of any fire insurance policy required under Concession Entity’s Agreement, or carried by City, covering the Premises, or the Terminals in which the same are located or which, in the opinion of Executive Director, may constitute a hazardous condition that will increase the risks normally attendant upon the operations contemplated under Concession Entity’s Agreement. If, by reason of any failure on the part of Concession Entity after receipt of notice in writing from City to comply with the provisions of this section, any fire insurance rate on the Premises, or any part thereof, or on the Terminals in which the same are located, shall at any time be higher than it normally would be, then Concession Entity shall pay City, on demand, as Additional Rent, that part of all fire insurance premiums paid by City which have been charged because of such violation of failure of Concession Entity; provided, however that nothing contained herein shall preclude Concession Entity from bringing, keeping or using on or about any Unit such materials, supplies, equipment and machinery as are appropriate or customary in carrying on its business, or from carrying on said business in all respects as is customary.
Permit an Auction. Concession Entity shall not allow any sale by auction in or upon any Unit.
Permit Lodging. Concession Entity shall not permit or use any Unit, or any part thereof, for lodging or sleeping purposes.
Airport Hazard. Concession Entity shall not make any uses of the Premises (including any Unit therein) in any manner which might interfere with the landing and taking off of aircraft from the Airport or otherwise constitute a hazard to such operations.
Permit Unlawful Use. Concession Entity shall not use or allow the Premises (including any Unit therein) to be used for any improper, immoral, unlawful or objectionable purposes, or commit any waste upon the Premises. In the event that any of the aforesaid covenants or restrictions set forth above in this Section is breached, City reserves the right to enter upon the Premises (including any Unit therein) and cause the abatement of such interference at the expense of Concession Entity.
13. Taxes
Concession Entity shall pay all taxes and assessments of whatever character that may be levied or charged upon the rights of Concession Entity (and its Concessionaires) to use the Premises (or any portion hereof), or upon Concession Entity’s and its Concessionaires’ improvements, fixtures, equipment or other property thereon, or upon Concession Entity’s or its Concessionaires’ operations in connection with Concession Entity’s Agreement. In accordance with California Revenue and Taxation Code Section 107.6(a), City states that by Concession Entity’s executing Concession Entity’s Agreement and accepting the benefits thereof, a property interest may be created known as a “possessory interest” and such property interest will be subject to property taxation. Concession Entity, as the party in whom the possessory interest is vested, may be subject to the payment of the property taxes levied upon such interest. Concession Entity shall protect, defend, indemnify and hold harmless City and City Agents from and against Claims incurred by or asserted against City or any City Agent in connections with any and all present or future taxes and assessments of whatever character that may be levied or charged upon the rights of Concession Entity (and/or its Concessionaires) to use the Premises (or any portion thereof), or upon Concession Entity’s and its Concessionaires’ improvements, fixtures, equipment or other property thereon, or upon Concession Entity’s or its Concessionaires’ operations in connection with Concession Entity’s Agreement.
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Attachment to Resolution 28084 (page 13 of 23) |
TCM shall have the right to pass through all of such taxes to its Concessionaires but without any administrative mark-up or profit.
14. Licenses & Permits
Concession Entity (and shall require its Concessionaires to obtain and pay for) shall obtain and pay for all licenses and permits necessary or required by law for the conduct of Concession Entity’s and its Concessionaires’ operations at the Premises.
15. Compliance with Laws
Concession Entity shall, at Concession Entity’s sole cost and expense, fully and faithfully observe and comply with (a) all municipal, state and federal laws, statutes, codes, rules, regulations, ordinances, requirements, and orders (collectively, “Laws”), now in force or which may hereafter be in force pertaining to the Premises or Concession Entity’s or its Concessionaires’ use of the Premises, the Facility(ies) or the Airport (including without limitation, (i) all safety, security and operations directives of City, including by Executive Director, which now exist or may hereafter be promulgated from time to time governing conduct on and operations at the Airport or the use of facilities at the Airport; and (ii) any and all valid and applicable requirements of all duly constituted public authorities (including, without limitation, the Department of Transportation, the Department of Homeland Security, the Federal Aviation Administration, and the Transportation Security Administration)); (b) all recorded covenants, conditions and restrictions affecting the Airport (“Private Restrictions”) now in force or which may hereafter be in force; and (c) the Rules and Regulations. The judgment of any court of competent jurisdiction, or the admission of Concession and TCM in any action or proceeding against Concession and TCM, whether City be a party thereto or not, that Concession and TCM has violated any Laws or Private Restrictions, shall be conclusive of that fact as between Concession and TCM and City. As used in Concession Entity’s Agreement, “Laws” shall include all present and future federal, state and local statutes, ordinances and regulations and City ordinances applicable to Concession and TCM (or its Concessionaires), the Premises (including the Units), the Permitted Uses or the Airport, including but not limited to requirements under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., including, without limitation, to Title III thereof, and all regulations and guidelines related thereto, together with any and all laws, rules, regulations, ordinances, codes and statutes now or hereafter enacted by local or state agencies having jurisdiction thereof (including, without limitation, all of the requirements of Title 24 of the California Code of Regulations), as the same may be in effect on the date of Concession Entity’s Agreement and may be hereafter modified, amended or supplemented (collectively, the “ADA”), all acts and regulations relating in any way to food and drugs, worker’s compensation, sales and use tax, credit card processing, social security, unemployment insurance, hours of labor, wages, working conditions, the Immigration Reform and Control Act of 1986, the City of Los Angeles Administrative Code, and all Hazardous Materials Laws (as defined in Section 15 below).
Concession Entity agrees to pay or reimburse City as Additional Rent for any civil penalties or fines which may be assessed against City as a result of the violation by Concession Entity or any Concession Entity Party of any Laws or Private Restrictions, which payment shall be made by Concession Entity, upon demand, from receipt of City’s invoice for such amount and documentation showing that payment of such penalty or fine is Concession Entity’s responsibility hereunder.
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Attachment to Resolution 28084 (page 14 of 23) |
16. Airport Operations
Concession Entity acknowledges that the operational requirements of the Airport as an airport facility, including without limitation security requirements, are of paramount importance. Concession Entity acknowledges and agrees that Concession Entity must conduct its business (and require its Concessionaires to conduct their business) in a manner that does not conflict with the operational requirements of the Airport as an airport facility and that fully accommodates those requirements. Without limiting other waivers herein, Concession Entity waives all Claims against City and City Agents arising out of or connected to the operation of the Airport as an airport facility.
17. Pest Control
Concession Entity shall be solely responsible for a pest-free environment within the Common Areas, Storage Premises and Units located within the Premises by maintaining its own pest control services, in accordance with the most modern and effective control procedures. All materials used in pest control shall conform to applicable Laws. All controlled substances utilized shall be used with all precautions to obviate the possibility of accidents to humans, domestic animals and pets. Whenever City deems that pest control services must be provided to a building or area that includes Concession Entity’s Premises under the Agreement, Concession Entity shall pay for the costs of services provided for the Premises under the Agreement. TCM shall have the right to pass through such costs and expenses on a pro-rata basis to its Concessionaires.
18. Disabled Access
Concession Entity shall be solely responsible for fully complying with any and all applicable present or future rules, regulations, restrictions, ordinances, statutes, Laws, or orders of any federal, state, or local governmental entity or court regarding disabled access including any services, programs, improvements or activities provided by Concession Entity. Concession Entity shall be solely responsible for any and all Claims and damages caused by, or penalties levied as the result of, Concession Entity’s noncompliance. Further, Concession Entity agree to cooperate fully with City in its efforts to comply with the ADA.
Should Concession Entity fail to comply with Section 16.10.1, then City, shall have the right, but not the obligation, to perform, or have performed, whatever work is necessary to achieve equal access compliance. Concession Entity shall then be required to reimburse City for the actual cost of achieving compliance, plus the Administrative Fee, upon written demand.
19. Child Support Orders
Concession Entity’s Agreement is subject to Section 10.10, Article I, Chapter 1, Division 10 of the Los Angeles Administrative Code related to Child Support Assignment Orders, which is incorporated herein by this reference. A copy of section 10.10 and the Declaration of Compliance form have been attached to the procedures for the convenience of the parties. Pursuant to this Section, Concession Entity (and any concessionaire of TCM providing services to City under Concession Entity’s Agreement) shall (1) fully comply with all State and Federal employment reporting requirements for Concession Entity’s or TCM’s concessionaire’s employees applicable to Child Support Assignment Orders; (2) certify that the principal owner(s) of Concession Entity and applicable concessionaires are in compliance with any Wage and Earnings Assignment Orders and Notices of Assignment applicable to them personally; (3) fully comply
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Attachment to Resolution 28084 (page 15 of 23) |
with all lawfully served Wage and Earnings Assignment Orders and Notices of Assignment in accordance with California Family Code Section 5230, et seq.; and (4) maintain such compliance throughout the term of Concession Entity’s Agreement. Pursuant to Section 10.10(b) of the Los Angeles Administrative Code, failure of Concession Entity or an applicable concessionaire to comply with all applicable reporting requirements or to implement lawfully served Wage and Earnings Assignment Orders and Notices of Assignment or the failure of any principal owner(s) of Concession Entity or applicable concessionaires to comply with any Wage and Earnings Assignment Orders and Notices of Assignment applicable to them personally shall constitute a Default of Concession Entity’s Agreement subjecting Concession Entity’s Agreement to termination where such failure shall continue for more than ninety (90) days after notice of such failure to Concession Entity by City (in lieu of anytime for cure provided elsewhere in the Agreement).
20. Business Tax Registration
Concession Entity represents that it has registered its business with the Office of Finance of the City of Los Angeles and has obtained and presently holds from that Office a Business Tax Registration Certificate (“BTRC”), or a Business Tax Exemption Number, required by the City of Los Angeles’ Business Tax Ordinance (Article 1, Chapter 2, Sections 21.00 and following, of the City of Los Angeles’ Municipal Code). Concession Entity shall maintain, or obtain as necessary, all such certificates required of it under said Ordinance and shall not allow any such certificate to be revoked or suspended during the term hereof.
21. Non-Discrimination & Affirmative Action Provisions
Federal Non-Discrimination Provisions. Concession Entity assures that it will comply with pertinent statutes, Executive Orders, and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance. This provision obligates Concession Entity or its transferee for the period during which Federal assistance is extended to the airport program, except where Federal assistance is to provide, or is in the form of personal property or real property or interest therein or structures or improvements thereon. In these cases, the provision obligates the party or any transferee for the longer of the following periods: (a) the period during which the property is used by the sponsor or any transferee for a purpose for which Federal assistance is extended, or for another purpose involving the provision of similar services or benefits; or (b) the period during which the airport sponsor or any transferee retains ownership or possession of the property.
Municipal Non-Discrimination Provisions In Use of Airport. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, religion, national origin, ancestry, sex, sexual orientation, gender identity, gender expression, age, physical handicap, marital status, domestic partner status, or medical condition in connection with Concession Entity’s Agreement, the transfer, use, occupancy, tenure, or enjoyment of the Airport or any operations or activities conducted on the Airport. Nor shall Concession Entity establish or contract any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of contractors, subcontractors, or vendees of the Airport. Any Transfer of Agreement or TCM’s Unit Concession Agreement, which may be permitted under Concession Entity’s Agreement, shall also be subject to all non-discrimination clauses contained in this Section.
Municipal Non-Discrimination Provisions in Employment. During the term of Concession Entity’s Agreement, Concession Entity agrees and obligates itself in the performance of Concession Entity’s Agreement not to discriminate against any employee or applicant for employment because of the employee’s or applicant’s race, religion, national origin, ancestry, sex, sexual orientation, gender identity, gender expression age, physical handicap, marital status, domestic partner status, or medical condition.
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Attachment to Resolution 28084 (page 16 of 23) |
Concession Entity shall take affirmative action to ensure that applicants for employment are treated, during the term of Concession Entity’s Agreement, without regard to the aforementioned factors and shall comply with the affirmative action requirements of the Los Angeles Administrative Code, Sections 10.8, et seq., or any successor ordinances or law concerned with discrimination.
Municipal Equal Employment Practices. If the total payments made under Concession Entity’s Agreement are One Thousand Dollars ($1,000) or more, this provision shall apply. During the performance of Concession Entity’s Agreement, Concession Entity agree to comply with Section 10.8.3 of the Los Angeles Administrative Code (“Equal Employment Practices”), which is incorporated herein by this reference. A copy of Section 10.8.3 has been attached to the Agreement for the convenience of the parties as an Exhibit in the Agreement. Byway of specification but not limitation, pursuant to Sections 10.8.3.E and 10.8.3.F of the Los Angeles Administrative Code, the failure of Concession Entity to comply with the Equal Employment Practices provisions of Concession Entity’s Agreement may be deemed to be a material Default of Concession Entity’s Agreement. No such finding shall be made, or penalties assessed except upon a full and fair hearing after notice and an opportunity to be heard have been given to Concession Entity. Upon a finding duly made that Concession Entity has failed to comply with the Equal Employment Practices provisions of Concession Entity’s Agreement, Concession Entity’s Agreement may be forthwith terminated, cancelled, or suspended.
Municipal Affirmative Action Program. If the total payments made under Concession Entity’s Agreement are One Hundred Thousand Dollars or more, this provision shall apply. During the performance of Concession Entity’s Agreement, Concession Entity agree to comply with Section 10.8.4 of the Los Angeles Administrative Code (“Affirmative Action Program”), which is incorporated herein by this reference. A copy of Section 10.8.4 has been attached to the Agreement for the convenience of the parties as an Exhibit in the Agreement. By way of specification but not limitation, pursuant to Sections 10.8.4.E and 10.8.4.F of the Los Angeles Administrative Code, the failure of Concession Entity to comply with the Affirmative Action Program provisions of Concession Entity’s Agreement may be deemed to be a material Default of Concession Entity’s Agreement. No such finding shall be made or penalties assessed except upon a full and fair hearing after notice and an opportunity to be heard have been given to Concession Entity. Upon a finding duly made that Concession Entity has failed to comply with the Affirmative Action Program provisions of Concession Entity’s Agreement, Concession Entity’s Agreement may be forthwith terminated, cancelled, or suspended.
22. Security
General. Concession Entity shall be responsible for fully complying with any and all applicable present or future rules, regulations, restrictions, ordinances, statutes, Laws or orders of any federal, state or local governmental entity regarding airfield security.
FAA. Concession Entity shall be responsible for the maintenance and repair of gates and doors that are located at the Premises or controlled by Concession Entity. Concession Entity shall comply fully with applicable provisions of the Federal Aviation Administration Regulations, 14 CFR, Part 107, including the establishment and implementation of procedures acceptable to Executive Director to control access from the Premises to air operation areas in accordance with the Airport Security Program required by Part 107.
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Attachment to Resolution 28084 (page 17 of 23) |
Further, Concession Entity shall exercise exclusive security responsibility for the Premises and, if Concession Entity are an air carrier, do so pursuant to Concessionaire’s Federal Aviation Administration approved Air Carrier Standard Security Program used in accordance with 14 CFR, Part 129.
Doors and Gates. Gates and doors located at the Premises which permit entry into restricted areas at Airport shall be kept locked by Concession Entity at all times when not in use or under Concessionaire’s and TCM’s constant security surveillance. Gate or door malfunctions which permit unauthorized entry into restricted areas shall be reported to Department of Airports’ Operations Bureau without delay and shall be maintained under constant surveillance by Concession Entity until repairs are affected by Concession Entity or City or the gate or door is properly secured.
Penalties. All civil penalties levied by the Federal Aviation Administration for violation of Federal Aviation Regulations pertaining to security gates or doors located at the Premises or otherwise controlled by Concession Entity shall be the sole responsibility of Concession Entity. Concession Entity agree to indemnify, defend and hold City and City Agents harmless from and against any Claims or any federal civil penalties amounts City or any City Agent must pay due to any security violation arising from the use of Concessionaire’s and TCM’s leasehold or the breach of any obligation imposed by this Section. Concession Entity will be billed for the cost of any such penalties paid by City as Additional Rent hereunder, plus the Administrative Fee, to be paid by Concessionaire to City, upon written demand.
Security Arrangements. City shall provide, or cause to be provided, during the term hereof, all proper and appropriate public fire, police and security protection similar to that afforded to others at Airport, and it will issue and enforce rules and regulations with respect thereto for all portions of Airport. Concession Entity shall have the right, but shall not be obligated, to provide such additional or supplemental private protection as it may desire, but such right, whether or not exercised by Concession Entity, shall not in any way be construed to limit or reduce the obligations of City hereunder.
23. Visual Artists’ Rights Act
Concession Entity shall not install, or cause to be installed, any work of art subject to the Visual Artists’ Rights Act of 1990 (as amended), 17 U.S.C. 106A, et seq., or California Civil Code Section 980, et seq., (“VARA”) on or about the Premises without first obtaining a waiver, in writing, of all rights under VARA, satisfactory to Executive Director and approved as to form and legality by the City Attorney’s Office, from the artist. Said waiver shall be in full compliance with VARA and shall name City as a party for which the waiver applies. Concession Entity are prohibited from installing, or causing to be installed, any piece of artwork covered under VARA on the Premises without the prior, written approval and waiver of Executive Director. Any work of art installed on the Premises without such prior approval and waiver shall be deemed a trespass, removable by City, by and through its Executive Director, upon three (3) days written notice, all costs, expenses, and liability therefore to be borne exclusively by Concession Entity. Concession Entity, in addition to other obligations to indemnify, defend and hold City and City Agents harmless, as more specifically set forth in Concession Entity’s Agreement, shall indemnify, defend and hold City and City Agents harmless from all Claims resulting from Concession Entity’s failure to obtain City’s waiver of VARA and failure to comply with any portion of this provision. The rights afforded City under this provision shall not replace any other rights afforded City in Concession Entity’s Agreement or otherwise, but shall be considered in addition to all its other rights.
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Attachment to Resolution 28084 (page 18 of 23) |
24. Living Wage Ordinance
General Provisions. Concession Entity’s Agreement may be subject to the Living Wage Ordinance (hereinafter referred to as “LWO”) (Section 10.37, et seq., of the Los Angeles Administrative Code, which is incorporated herein by this reference). A copy of Section 10.37 has been attached hereto for the convenience of the parties. The LWO requires that, unless specific exemptions apply, any employees of service contractors who render services that involve an expenditure in excess of Twenty Five Thousand Dollars and a contract term of at least three months are covered by the LWO if any of the following applies: (1) at least some of the services are rendered by employees whose work site is on property owned by City, (2) the services could feasibly be performed by City of Los Angeles employees if the awarding authority had the requisite financial and staffing resources, or (3) the designated administrative agency of the City of Los Angeles has determined in writing that coverage would further the proprietary interests of the City of Los Angeles. Employees covered by the LWO are required to be paid not less than a minimum initial wage rate, as adjusted each year. The LWO also requires that employees be provided with at least twelve compensated days off per year for sick leave, vacation, or personal necessity at the employee’s request, and at least ten (10) additional days per year of uncompensated time pursuant to Section 10.37.2(b). The LWO requires employers to inform employees making less than Twelve Dollars ($12) per hour of their possible right to the federal Earned Income Tax Credit (“EITC”) and to make available the forms required to secure advance EITC payments from the employer pursuant to Section 10.37.4. Concession Entity shall permit access to work sites for authorized City representatives to review the operation, payroll, and related documents, and to provide certified copies of the relevant records upon request by City. Whether or not subject to the LWO, Concession Entity shall not retaliate against any employee claiming noncompliance with the provisions of the LWO, and, in addition, pursuant to Section 10.37.6(c), Concession Entity agree to comply with federal law prohibiting retaliation for union organizing.
Living Wage Coverage Determination. An initial determination has been made that the Concession Entity’s Agreement is a service contract under the LWO, and that it is not exempt from coverage by the LWO. Determinations as to whether Concession Entity’s Agreement and TCM’s Unit Concession Agreements are service contracts covered by the LWO, or whether an employer or employee are exempt from coverage under the LWO are not final, but are subject to review and revision as additional facts are examined or other interpretations of the law are considered. In some circumstances, applications for exemption must be reviewed periodically. City shall notify Concession Entity in writing about any redetermination by City of coverage or exemption status. To the extent Concession Entity claims non-coverage or exemption from the provisions of the LWO, the burden shall be on Concession Entity to prove such non-coverage or exemption.
Compliance; Termination Provisions and Other Remedies: Living Wage Policy. If Concession Entity and its Concessionaires are not initially exempt from the LWO, Concession Entity shall comply, and shall require its Concessionaires to comply, with all of the provisions of the LWO, including payment to employees at the minimum wage rates, effective on the execution date of Concession Entity’s Agreement, and shall execute the Declaration of Compliance Form attached to Concession Entity’s Agreement, as part of an Exhibit in the Agreement, contemporaneously with the execution of Concession Entity’s Agreement. If Concession Entity are initially exempt from the LWO, but later no longer qualify for any exemption, Concession Entity shall, at such time as Concession Entity are no longer exempt, comply with the provisions of the LWO and execute the then currently used Declaration of Compliance Form, or such form as the LWO requires. Under the provisions of Section 10.37.6(c) of the Los Angeles Administrative Code, violation of the LWO shall constitute a material Default of Concession Entity’s Agreement and City shall be entitled to terminate Concession Entity’s Agreement and otherwise pursue legal remedies that may be available, including those set forth in the LWO, if City determines that Concession Entity violated the provisions of the LWO. The procedures and time periods provided in the LWO are in lieu of the procedures and time periods provided elsewhere in Concession Entity’s Agreement. Nothing in Concession Entity’s Agreement shall be construed to extend the time periods or limit the remedies provided in the LWO.
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Attachment to Resolution 28084 (page 19 of 23) |
Subcontractor Compliance. Concession Entity agree to include, in every subcontract or TCM Unit Concession Agreement covering City property, a provision pursuant to which such subcontractor or Concessionaire (A) agrees to comply with the Living Wage Ordinance and the Service Contractor Worker Retention Ordinance with respect to City’s property; (B) agrees not to retaliate against any employee lawfully asserting noncompliance on the part of the subcontractor or Concessionaire with the provisions of either the Living Wage Ordinance or the Service Contractor Worker Retention Ordinance; and (C) agrees and acknowledges that City, as the intended third-party beneficiary of this provision may (i) enforce the Living Wage Ordinance and Service Contractor Worker Retention Ordinance directly against the subcontractor or Concessionaire with respect to City property, and (ii) invoke, directly against the subcontractor or Concessionaire with respect to City property, all the rights and remedies available to City under Section 10.37.5 of the Living Wage Ordinance and Section 10.36.3 of the Service Contractor Worker Retention Ordinance, as same may be amended from time to time.
25. Service Contract Worker Retention Ordinance
Concession Entity’s Agreement may be subject to the Service Contract Worker Retention Ordinance (hereinafter referred to as “SCWRO”) (Section 10.36, et seq., of the Los Angeles Administrative Code), which is incorporated herein by this reference. A copy of Section 10.36 has been attached for the convenience of the parties as an Exhibit in the Agreement. If applicable, Concession Entity must also comply with the SCWRO which requires that, unless specific exemptions apply, all employers under contracts that are primarily for the furnishing of services to or for the City of Los Angeles and that involve an expenditure or receipt in excess of Twenty Five Thousand Dollars and a contract term of at least three (3) months, shall provide retention by a successor Concession Entity for a ninety-day (90-day) transition period of the employees who have been employed for the preceding twelve (12) months or more by the terminated Concession Entity or TCM’s concessionaire, if any, as provided for in the SCWRO. Under the provisions of Section 10.36.3(c) of the Los Angeles Administrative Code, City has the authority, under appropriate circumstances, to terminate Concession Entity’s Agreement and otherwise pursue legal remedies that may be available if City determines that the subject Concession Entity violated the provisions of the SCWRO.
26. Equal Benefits Ordinance
Unless otherwise exempt in accordance with the provisions of the Equal Benefits Ordinance (“EBO”), Concession Entity certifies and represents that Concession Entity will comply with the applicable provisions of EBO Section 10.8.2.1 of the Los Angeles Administrative Code, as amended from time to time. Concession Entity shall not, in any of its operations within the City of Los Angeles or in other locations owned by the City of Los Angeles, including the Airport, discriminate in the provision of Non-ERISA Benefits (as defined below) between employees with domestic partners and employees with spouses, or between the domestic partners and spouses of such employees, where the domestic partnership has been registered with a governmental entity pursuant to state or local law authorizing such registration. As used above, the term “Non-ERISA Benefits” shall mean any and all benefits payable through benefit arrangements generally available to Concessionaire’s and TCM’s employees which are neither “employee welfare benefit plans” nor “employee pension plans”, as those terms are defined in Sections 3(1) and 3(2) of ERISA.
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Attachment to Resolution 28084 (page 20 of 23) |
Non-ERISA Benefits shall include, but not be limited to, all benefits offered currently or in the future, by Concession Entity to its employees, the spouses of its employees or the domestic partners of its employees, that are not defined as “employee welfare benefit plans” or “employee pension benefit plans”, and, which include any bereavement leave, family and medical leave, and travel discounts provided by Concession Entity to its employees, their spouses and the domestic partners of employees.
Concession Entity agrees to post the following statement in conspicuous places at its place of business available to employees and applicants for employment: “During the term of a Contract with the City of Los Angeles, Concessionaire will provide equal benefits to employees with spouses and its employees with domestic partners. Additional information about the City of Los Angeles’ Equal Benefits Ordinance may be obtained from the Department of Public Works, Bureau of Contract Administration, Office of Contract Compliance at (213) 847-2625.”
The failure of Concession Entity to comply with the EBO will be deemed to be a material breach of Concession Entity’s Agreement by City. If Concession Entity fail to comply with the EBO, City may cancel or terminate such agreement, in whole or in part, and all monies due or to become due under such agreement may be retained by City. City may also pursue any and all other remedies at law or in equity for any breach. Failure to comply with the EBO may be used as evidence against Concession Entity in actions taken pursuant to the provisions of Los Angeles Administrative Code Section 10.40, et seq., Concessionaire Responsibility Ordinance. If City determines that Concession Entity has set up or used its contracting entity for the purpose of evading the intent of the EBO, City may terminate the Agreement.
27. Contractor Responsibility Ordinance
Concession Entity shall comply with the provisions of the Contractor Responsibility Program adopted by the Board. Executive Directives setting forth the rules, regulations, requirements and penalties of the Contractor Responsibility Program and the Pledge of Compliance Form is attached as an Exhibit to these procedures.
28. First Source Hiring Program for Airport Employees
For all work performed at Airport, Concession Entity shall comply, and shall cause its Concessionaires to comply, with all terms and conditions of the First Source Hiring Program (“FSHP”). A copy of the FSHP is attached hereto and incorporated by reference herein as an Exhibit to these procedures.
29. Environmentally Favorable Options
Concession Entity acknowledge for itself and its Concessionaires that its operation of its activities under Concession Entity’s Agreement will be subject to all of City of Los Angeles’ policies, guidelines and requirements regarding environmentally favorable construction, use or operations practices (hereinafter collectively referred to as “City Policies”) as such City Policies may be promulgated, revised and amended from time-to-time.
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Attachment to Resolution 28084 (page 21 of 23) |
30. Municipal Lobbying Ordinance
Concession Entity shall comply with the provisions of the City of Los Angeles Municipal Lobbying Ordinance.
31. Labor Peace Agreement
As a condition precedent to the execution of Concession Entity’s Agreement: (i) such Concession Entity shall have a signed a Labor Peace Agreement (“LPA”) with the labor organizations representing or seeking to represent concession workers at the premises or TCM’s Unit covered by the Unit Concession Agreement; (ii) Concession Entity shall have submitted to City a copy of such LPA, executed by all of the parties to such LPA; and (iii) such LPA shall prohibit such labor organizations and their members from engaging in picketing, work stoppages, boycotts or other economic interference with the business of such Concessionaire at any of the airports operated by City for the duration of the Agreement or TCM’s Unit Concession Agreement.
32. Alternative Fuel Vehicle Requirement Program
Concession Entity shall comply with the provisions of the Alternative Fuel Vehicle Requirement Program. The rules, regulations, and requirements of the Alternative Fuel Vehicle Program are attached as an Exhibit to these procedures and made a material term of Concession Entity’s Agreement.
33. City Events
From time to time, City will host certain global or nationwide events, including but not limited to the World Cup for soccer and the 2028 Summer Olympics (“City Event”), and City has or may enter into agreements in connection therewith that affect concessions at the Airport (“City Event Agreements”). Concession Entity shall (i) cooperate with City, (ii) act consistently with any such City Event Agreements and (iii) cause its subconcessionaires and subcontractors to act consistently with any such City Event Agreements. If any City Event has a material adverse impact on Concession Entity’s rights under the Concession Entity’s Agreement, then upon Concession Entity’s written notice to City, Concession Entity and City shall engage in good faith negotiations to address those impacts.
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Board File |
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No. LAA-8640G |
SEVENTH AMENDMENT TO THE LOS ANGELES INTERNATIONAL AIRPORT
TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT
BETWEEN THE CITY OF LOS ANGELES AND URW AIRPORTS, LLC
This SEVENTH AMENDMENT TO THE LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT, between the City of Los Angeles and URW AIRPORTS, LLC (“Seventh Amendment”), is made and entered into as of January 1, 2025 (“Effective Date of Seventh Amendment”), at Los Angeles, California by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (hereinafter referred to as “City”), acting by order of and through its Board of Airport Commissioners (hereinafter referred to as “Board”) and URW AIRPORTS, LLC (“TCM”).
RECITALS
WHEREAS, on June 22, 2012, City and TCM entered into the LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT, which is designated as agreement number LAA-8640, as amended by the (i) First Amended and Restated Los Angeles International Airport Food & Beverage Concession Agreement (ii) Second Amendment, (iii) Third Amendment, (iv) Fourth Amendment (v) Fifth Amendment and (vi) Sixth Amendment thereto (as amended, the “Agreement”) for premises at Los Angeles International Airport; and
WHEREAS, TCM has requested City to approve an open pricing policy; and
WHEREAS the parties wish to amend the Agreement so that certain requirements under the Agreement will hereinafter be set forth in an airport-wide policy for uniform interpretation and application for all similarly-situated concessionaires; and
NOW THEREFORE, the parties hereto, for and in consideration of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties hereto, do mutually agree that the Agreement, BE AMENDED AS FOLLOWS:
Amendment Section 1. The Agreement is hereby amended to add the following section 1.12.3(d).
“(d)Without limiting the foregoing, TCM shall comply with the Los Angeles International Airport and Van Nuys Airport Concessions Standard Operating Procedures approved by the Board of Airport Commissioners (as such rules may be amended from time), which rules are hereby incorporated herein by reference (“Concession SOP”). TCM’s or any Concessionaire’s breach of such Concession SOP shall be deemed a material breach of this Agreement. If there is any conflict between the Concession SOP and this Agreement, then the terms of the Concession SOP shall prevail.”
For the avoidance of doubt, the Concession SOPs include but are not limited to:
1.Public Address System
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2.Wireless Communication
3.Pricing
4.Utilities
5.Refuse Removal
6.Other Fees & Charges
7.Hours of Operation
8.Deliveries; Access & Coordination
9.Removal of Garbage & Refuse
10.Prohibited Acts
11.Taxes
12.Licenses & Permits
13.Compliance with Laws
14.Airport Operations
15.Pest Control
16.Other Provisions
17.Disabled access
18.Child Support Orders
19.Business tax registration
20.Non-Discrimination & Affirmative Action Provisions
21.Security - General
22.Visual Artists’ Rights Act
23.Living Wage Ordinance General Provisions
24.Service Contract Worker Retention Ordinance
25.Equal Benefits Ordinance
26.Contractor Responsibility Program
27.First Source Hiring Program for Airport Employees
28.Environmentally Favorable Options
29.Municipal Lobbying Ordinance
30.Labor Peace Agreement
31.Alternative Fuel Vehicle Requirement Program
32.City Events.
Amendment Section 2.The Basic Information of the Agreement is hereby amended and restated to conform with the provisions of this Seventh Amendment, to the extent that the provisions in the Basic Information have been modified by the provisions of this Seventh Amendment.
Amendment Section 3.The parties hereby represent and covenant to the other, to the best of their knowledge, without independent inquiry, as follows: (1) neither party is in default in the performance of any of the terms or provisions of the Agreement; (2) neither party has nor claims any setoffs or credits against the payment of Rent or other amounts payable to the other under the Agreement; and (3) the parties shall be entitled to rely on the accuracy of the foregoing representation and covenants, and each party hereby releases the other from any claims relating to the foregoing matters.
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Amendment Section 4.TCM hereby re-certifies all of its representations and warranties under Section 16.42 of the Agreement, including all of its subsections.
Amendment Section 5.Except as specifically provided herein, this Seventh Amendment shall not in any manner alter, change, modify, or affect any of the rights, privileges, duties, or obligations of either of the parties hereto, under, or by reason of said Agreement, as amended.
This Seventh Amendment and any other document necessary for the consummation of the transaction contemplated by this Seventh Amendment may be executed in counterparts, including counterparts that are manually executed and counterparts that are in the form of electronic records and are electronically executed. An electronic signature means a signature that is executed by symbol attached to or logically associated with a record and adopted by a party with the intent to sign such a record, including facsimile or e-mail signatures. All executed counterparts shall constitute one amendment, and each counterpart shall be deemed an original. The parties hereby acknowledge and agree that electronic records and electronic signatures, as well as facsimile signatures, may be used in connection with the execution of this Seventh Amendment and electronic signatures, facsimile signatures or signatures transmitted by electronic mail in so-called PDF format shall be legal and binding and shall have the same full force and effect as if a paper original of this amendment had been delivered that had been signed using a handwritten signature. All parties to this Seventh Amendment (i) agree that an electronic signature, whether digital or encrypted, of a party to this Seventh Amendment is intended to authenticate this writing and to have the same force and effect as a manual signature; (ii) intended to be bound by the signatures (whether original, faxed, or electronic) on any document sent or delivered by facsimile or electronic mail or other electronic means; (iii) are aware that the other party(ies) will rely on such signatures; and, (iv) hereby waive any defenses to the enforcement of the terms of this Seventh Amendment based on the foregoing forms of signature. If this Seventh Amendment has been executed by electronic signature, all parties executing this document are expressly consenting, under the United States Federal Electronic Signatures in Global and National Commerce Act of 2000 (“E-SIGN”) and the California Uniform Electronic Transactions Act (“UETA”) (California Civil Code §1633.1 et seq.), that a signature by fax, e-mail, or other electronic means shall constitute an Electronic Signature to an Electronic Record under both E-SIGN and UETA with respect to this specific transaction.
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IN WITNESS WHEREOF, City has caused this Seventh Amendment to be executed on its behalf by the Chief Executive Officer, or his or her authorized signatory, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
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Approved as to form: |
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CITY OF LOS ANGELES |
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HYDEE FELDSTEIN SOTO, |
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By: |
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By: |
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Deputy/Assistant City Attorney |
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Chief Executive Officer |
Date: |
Feb 5, 2025 |
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(SIGNATURE PAGE CONTINUES)
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URW AIRPORTS, LLC |
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URW AIRPORTS, LLC |
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/s/ Maral Matossian |
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By: |
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Signature |
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Signature |
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Maral Matossian |
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Print Name |
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VP, LAX |
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5
Unanimous Written Consent
of the Board of Managers
of
URW AIRPORTS, LLC
The undersigned, being all of the members of the Board of Managers (the “Board”) of URW Airports, LLC, a Delaware limited liability company (the “Company”), and being entitled to vote on the resolution hereinafter set forth as if the same had been submitted at a meeting of the Board of the Company duly called and held for the purpose of acting on such resolution, do hereby consent to the following resolution:
OFFICERS
RESOLVED, that the following officers shall be appointed to serve as officers of the Company as indicated, to serve in accordance with the Operating Agreement and at the direction of the Board:
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John Kim |
President and Secretary |
Corinne Ponchard |
Treasurer |
Trent Revic |
Chief Financial Officer – Airports |
Dany Nasr |
Group Director of Airports |
David Yamamoto |
Senior Vice President – Airports |
Brian Petrow |
Senior Vice President – Airport Operations |
Brad Tollefson |
Senior Vice President – Airport Development |
Amy Benson |
Vice President – Airports |
Eric Farster |
Vice President – Construction |
Ian Carter |
Vice President – JFK |
Maral Matossian |
Vice President – LAX |
Alix James |
Assistant Secretary |
Charlotte Floyd |
Assistant Secretary |
Hyura Choi |
Assistant Secretary |
Laurie Yoo |
Assistant Secretary |
John Fuleras |
Assistant Secretary |
Paul Turbow |
Assistant Secretary |
Lisa Shelley |
Assistant Secretary |
RESOLVED FURTHER, that all actions heretofore taken by any officer of the Company prior to the date of these resolutions that is otherwise within the authority of these resolutions is hereby ratified, confirmed and approved in all respects.
[Signatures on following page.]
In witness whereof, the undersigned being all members of the Board of Managers of URW Airports, LLC, have executed this written consent as of April 1, 2024.
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/s/ John Kim |
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John Kim |
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/s/ Corinne Ponchard |
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Corinne Ponchard |
ACKNOWLEDGEMENT OF GUARANTOR
The undersigned, URW WEA LLC, a Delaware Limited Liability Company not qualified (herein, “Guarantor”), hereby represents, acknowledges, and agrees as follows: (1) Guarantor has reviewed the foregoing SEVENTH AMENDMENT TO THE LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT BETWEEN THE CITY OF LOS ANGELES AND URW AIRPORTS, LLC (“Seventh Amendment”); (2) Guarantor is the guarantor of TCM’s obligations under the LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT BETWEEN THE CITY OF LOS ANGELES AND URW AIRPORTS, LLC, LAA-8640, dated June 22, 2012 (as amended, “Agreement”), pursuant to that certain Concession Guaranty executed concurrently with the execution of the Agreement (the “Guaranty”); (3) Guarantor approves of TCM’s execution of the NINTH AMENDMENT and agrees with its terms; and (4) the Guaranty is hereby reaffirmed, and the Guaranty is and remains in full force and effect and continues to guarantee the prompt payment and performance by TCM of all of the terms of the Agreement, as amended. This Acknowledgement of Guarantor has been executed as of the date of execution of the Seventh Amendment by TCM.
“GUARANTOR”
URW WEA LLC, a Delaware Limited Liability Company not qualified |
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URW WEA LLC, a Delaware Limited Liability Company not qualified |
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/s/ Aline Taireh |
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By: |
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Aline Taireh |
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Its: Chairperson / President / Vice-President |
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Its: Secretary / Asst. Sec. / CFO / Asst. Treas. |
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UNANIMOUS WRITTEN CONSENT OF
THE BOARD OF MANAGERS OF
URW WEA LLC
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The undersigned, being all of the members of the Board of Managers (the “Board”) of URW WEA LLC, a Delaware limited liability company (the “Company”), and being entitled to vote on the resolution hereinafter set forth as if the same had been submitted at a meeting of the Board of the Company duly called and held for the purpose of acting on such resolution, do hereby consent to the following resolution:
OFFICERS
RESOLVED, that the following officers shall be appointed to serve as officers of the Company as indicated, to serve in accordance with the Operating Agreement and at the direction of the Board:
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Dominic Lowe |
Chief Operating Officer |
Aline Taireh |
Executive Vice President, General Counsel and Secretary |
Christoph Berentzen |
Chief Financial Officer, Treasurer |
Alison Wais |
Assistant Secretary |
Hyura Choi |
Assistant Secretary |
Isabela Gaido |
Assistant Secretary |
Laurie Yoo |
Assistant Secretary |
John Kim |
Assistant Secretary |
Paul Turbow |
Assistant Secretary |
Lisa Shelley |
Assistant Secretary |
John Fuleras |
Assistant Secretary |
Nelson Alemany |
Assistant Secretary |
RESOLVED FURTHER, that all actions heretofore taken by any officer of the Company prior to the date of these resolutions that is otherwise within the authority of these resolutions is hereby ratified, confirmed and approved in all respects.
IN WITNESS WHEREOF, the undersigned, being all of the members of the Board have executed this written consent effective as of December 31, 2021.
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/s/ Dominic Lowe |
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Dominic Lowe |
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/s/ Christoph Berentzen |
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Christoph Berentzen |
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/s/ Aline Taireh |
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Aline Taireh |
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/s/ David Zeitoun |
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David Zeitoun |
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.20.8
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CONFORMED COPY |
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BOARD FILE NOS. LAA-8613J |
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LAX Van Nuys City of Los Angeles Karen Bass Board of Airport Commissioners Karim Webb Matthew M. Johnson Vanessa Aramayo Valeria C Velasco John Ackerman Chief Executive Officer |
RESOLUTION NO. 28175 WHEREAS, on recommendation of Management, there were presented for approval, Tenth Amendment to Concession Agreement LAA-8613 and Eighth Amendment to Concession Agreement LAA-8640, both with URW Airports, LLC, to extend their respective terms by four (4) years, require improvements in the amount of $11,000,000 prior to June 2028, and stabilize the Minimum Annual Guarantee rent; and WHEREAS, URW Airports, LLC (URW) has managed concessions in Terminals 1, 2, 3, 6, and the Tom Bradley International Terminal since 2012. Passenger demographics in several terminals have since changed due to airline relocations, and post-pandemic passenger traffic levels have declined overall. In addition, inflationary pressures, including goods and labor costs have grown much more rapidly than was projected when the contracts were executed; and WHEREAS, in response to the 2028 Olympics, Los Angeles World Airports (LAWA) has extended concessions in Terminals 4, 5, 7 and 8 to allow for consistent operations. In September 2024, URW approached LAWA with a proposal to (1) make improvements to concession areas covered by its agreements, refreshing the guest experience in advance of the Olympics; (2) stabilize the Minimum Annual Guarantee (MAG) to support the economics for concessionaires in response to the impacts of inflation and declining passenger traffic; and (3) revise the Management Fee paid to LAWA to be based on its performance instead of a flat fee that increases annually by CPI; and WHEREAS, the Amendments were negotiated to ensure that the concessions in the URW-managed terminals will be upgraded prior to the 2028 Olympics and will be provided enough term for the concessionaires and URW to amortize the new investments. [**] WHEREAS, to provide equity to LAWA, the Terminal Commercial Manager (TCM) Management Fee that LAWA pays to URW will also be revised to remain flat for 36 months before being reinstated July 1, 2028. At that point, the TCM Management Fee will be calculated annually as 1.15% of the prior year’s gross concession sales but will never be less than $2 million; and WHEREAS, to guarantee a continued revenue stream, the Amendments allow for the assignment of concession agreements to LAWA, enabling URW to give term beyond the expiration of the agreement allowing LAWA to retain the concessionaires once approved by the Board of Airport Commissioners (Board). In addition, to protect LAWA’s rights to maintain the exiting concessions program, the Amendments prohibit URW from transferring the agreements without approval by the Board. All other terms of the agreements remain unchanged; and WHEREAS, actions taken on this item by the Board will become final pursuant to the provisions of Los Angeles City Charter Section 606; NOW, THEREFORE, BE IT RESOLVED that the Board of Airport Commissioners adopted the staff report; further adopted staff’s determination that this item, involving the issuance of permits, leases, |
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Resolution No. 28175 |
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agreements, gate and space assignments, and renewals, amendments or extensions thereof, or other entitlements granting use of existing airport facilities or its operations, is exempt from the California Environmental Quality Act (CEQA) pursuant to Article III, Class 1 (18)(c) of the Los Angeles City CEQA Guidelines; approved the Tenth Amendment to Concession Agreement LAA-8613 and Eighth Amendment to Concession Agreement LAA-8640, both with URW Airports, LLC, [**] and authorized the Chief Executive Officer, or designee, to execute said Tenth Amendment to Concession Agreement LAA-8613 and Eighth Amendment to Concession Agreement LAA-8640, both with URW Airports, LLC subject to approval by the Los Angeles City Council and approval as to form by the City Attorney. |
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I hereby certify that this Resolution No. 28175 is true and correct, as adopted by the Board of Airport Commissioners at its Regular Meeting held on Thursday, May 15, 2025. |
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/s/ Esther N. Alailima Semeatu |
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Esther N. Alailima Semeatu - Assistant Secretary |
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BOARD OF AIRPORT COMMISSIONERS |
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Approved by Los Angeles City Council on July 1, 2025 |
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Board File:
No: LAA-8640H
EIGHTH AMENDMENT TO THE LOS ANGELES INTERNATIONAL AIRPORT
TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT
BETWEEN THE CITY OF LOS ANGELES AND URW AIRPORTS, LLC
This EIGHTH AMENDMENT TO THE LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT, between the City of Los Angeles and URW AIRPORTS, LLC (“Eighth Amendment”), is made and entered into as of July 2, 2025 (“Effective Date of Eighth Amendment”), at Los Angeles, California by and between THE CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS, a municipal corporation (hereinafter referred to as “City”), acting by order of and through its Board of Airport Commissioners (hereinafter referred to as “Board”) and URW AIRPORTS, LLC (“TCM”).
RECITALS
WHEREAS, on June 22, 2012, City and TCM entered into the LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT, which is designated as agreement number LAA-8640, as amended by the (i) First Amendment (ii) Second Amendment, (iii) Third Amendment, (iv) Fourth Amendment, (v) Fifth Amendment, (vi) Sixth Amendment, and (vii) Seventh Amendment thereto (as amended, the “Agreement”) for premises at Los Angeles International Airport; and
WHEREAS, TCM has requested City to grant certain economic relief to support current and future Concessionaires as passenger traffic continues to remain below pre COVID-19 pandemic levels; and
WHEREAS the parties wish to amend the Agreement to, among other things, extend the term and suspend any increase in the Minimum Annual Guarantee in return for TCM investing additional capital in the premises and completing renovations prior to the 2028 Los Angeles Olympics;
WHEREAS, to enable Concessionaires to invest additional capital in their concessions’ premises, the parties wish to allow TCM to enter into concession agreements that expire after the Agreement’s Expiration Date, subject to City’s approval;
WHEREAS, concurrently herewith, TCM and the City are executing that certain Tenth Amendment to The Los Angeles International Airport Terminal Commercial Management Concession Agreement, which is designated as agreement number LAA-8613 (the “Other Agreement”); and
WHEREAS, all capitalized terms not otherwise defined herein shall have the definitions given such terms in the Agreement.
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NOW THEREFORE, the parties hereto, for and in consideration of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties hereto, do mutually agree that the Agreement, BE AMENDED AS FOLLOWS:
Amendment Section 1. Expiration Date Extension.
The Agreement’s “Expiration Date” is hereby amended to mean June 30, 2038.
Amendment Section 2. Post-Expiration Unit Concession Agreements.
Notwithstanding anything to the contrary in the Agreement, including without limitation Sections 2.3 and 3.3 of the Agreement, a Unit Concession Agreement under the Agreement may have a term that expires after the Expiration Date of the Agreement (“Post-Expiration UCA”), subject to the following conditions:
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City may condition its approval of any Post-Expiration UCA upon a minimum investment amount and completion deadline for work associated with such additional investment. For the avoidance of doubt, the City’s approval of such Post-Expiration UCA shall not by itself be construed as an exercise of its discretion to assume such Post-Expiration UCA pursuant to Amendment Section 2(c) below. |
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Within 10 days of the City’s written request, TCM shall request from the Concessionaire(s) of any Post-Expiration UCA an estoppel certificate in a form approved by the City Attorney. |
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On or before the expiration of the Agreement, City shall have the option to assume such Post-Expiration UCA as follows: City may, subject to all requirements of applicable law for a direct concession agreement (including Board or City Council approval, if required), assume the Post-Expiration UCA by written notice to TCM and Concessionaire, which assumption shall commence upon the expiration or early termination of the Agreement. For purposes of determining whether Board or City Council approval is required, the term of the agreement shall be calculated from the date of the expiration or termination of the Agreement, whichever is earlier. |
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If the CEO exercises his or her discretion to assume the Post-Expiration UCA, then: (i) the Post-Expiration UCA Concessionaire shall recognize and attorn to City as its landlord under the Post-Expiration UCA; (ii) for the term after the Agreement, the form of such Post-Expiration UCA shall be in a form approved by City Attorney for City’s direct concessionaires, and Post-Expiration UCA Concessionaire shall cooperate with City in the execution thereof. |
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If the CEO does not provide a written notice of assumption pursuant to Amendment Section 1(c) before the expiration of the Agreement (or within ninety (90) days from the termination), then the CEO shall be deemed to have declined to exercise his or her discretion to assume the Post-Expiration UCA, and the Post-Expiration UCA shall terminate upon the termination or expiration of the Agreement. |
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Notwithstanding any assumption by City of a Post-Expiration UCA, TCM shall remain liable for any obligation incurred by TCM under such Post-Expiration UCA. For the avoidance of doubt, City shall not be liable for any obligation incurred by |
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under such Post-Expiration UCA prior to City’s assumption, nor shall City be liable for any obligation incurred by any party other than City.
Amendment Section 3. [**]
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Amendment Section 4. [**]
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Amendment Section 5. [**]
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Amendment Section 6. Mid-Term Refurbishments.
Section 7 of the Agreement shall be amended as follows:
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The Minimum Mid-Term Refurbishment Amount under Section 7.6.2 shall not be less than [**] The Minimum Mid-Term Refurbishment Amount shall include all Qualified Investment costs, including design and construction costs incurred (subject to Section 9.4(d) of the Agreement) by TCM, but shall exclude any direct or indirect investment(s) by its Concessionaires. |
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If (i) TCM meets all its obligations under Section 7 of the Agreement, (ii) its total Qualified Investments under this Agreement and the Other Agreement (“Total Qualified Investments”) exceed [**] and (iii) TCM is not under material default under this Agreement and the Other Agreement, then the Expiration Date of the Agreement shall be extended by the CEO by a time period equal to one month for each additional [**] of the Total Qualified Investments in excess of [**] up to a maximum of two (2) years. For purposes of illustration and not limitation, if TCM’s Total Qualified Investments are [**] then the Expiration Date shall be extended by eighteen (18) months for both the Agreement and the Other Agreement. |
C. |
TCM shall provide the Mid-Term Refurbishment Plan to the CEO on or before June 30, 2025. The CEO shall use best efforts to approve such Mid-Term Refurbishment Plan as soon as possible following receipt. |
D. |
The Mid-Term Refurbishment Completion Date in Section 7.6 shall be replaced with January 31, 2028. |
Amendment Section 7. The Agreement is hereby amended to delete Section 10.3 in its entirety.
Amendment Section 8. Transfer Restriction Expiration
Section 14.1 is hereby deleted and replaced with the following Section 14.1:
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“14.1 Transfer Prohibited. TCM shall not, in any manner, directly or indirectly, by operation of law or otherwise, hypothecate, assign, transfer, or encumber this Agreement, the Premises, in whole or in part or any right or privilege appurtenant thereto, or allow any other person (the employees and invitees of TCM and its Concessionaires excepted) to occupy or use the Premises, or any portion thereof (“Transfer”), without the prior written consent of Board, which may be granted, denied or conditioned in Board’s sole discretion. Any written request for consent to a Transfer shall include proposed documentation evidencing such Transfer, name and address of the proposed transferee and the nature and character of the business of the proposed transferee and shall provide current and three (3) years prior financial statements for the proposed transferee, which financial statements shall be audited to the extent available and shall in any event be prepared in accordance with generally accepted accounting principles (collectively, a “Transfer Request”). This Agreement shall not, nor shall any interest therein, be assignable as to the interest of TCM by operation of law without the prior written consent of Board. Notwithstanding anything to the contrary in Sections 14.1 and 14.2, TCM acknowledges that it shall not implement any corporate restructuring, including an equity transfer or a change in control, or any other transfer or reorganization for purpose of circumventing the Transfer restrictions set forth in this Agreement. Any attempted Transfer in violation of this Section shall be void ab initio, shall, at the option of the City, constitute a material Default under this Agreement.”
Amendment Section 9. The Basic Information of the Agreement is hereby amended and restated to conform with the provisions of this Eighth Amendment, to the extent that the provisions in the Basic Information have been modified by the provisions of this Eighth Amendment.
Amendment Section 10. Representations and Warranties. TCM hereby re-certifies all of its representations and warranties under Section 16.42 of the Agreement, including all of its subsections. As a material inducement to City’s entering into this Eighth Amendment, TCM hereby represents, warrants and covenants to City as follows: (1) City is not in default in the performance of City’s obligations under the terms and provisions of the Agreement; (2) City has duly delivered the Premises to TCM in accordance with terms of the Agreement, and there exists no unresolved disputes or claims by TCM in connection with the Agreement (including, without limitation, for items of construction, repair or capital expenditure for which City is liable or obligated to pay for or perform in connection with the Agreement); (3) TCM neither has nor claims any defenses, setoffs or credits against the payment of Rent payable under the Agreement; (4) all known payments due and payable by its Concessionaires, including capital expenditures, rental payments, possessory interest taxes, and other pass-through costs owned to TCM as part of the Unit Concession Agreements, have been paid or otherwise accounted for by TCM; and (5) City shall be entitled to rely on the accuracy of the foregoing representations, warranties and covenants, and TCM hereby releases City from any claims relating to the foregoing matters.
Amendment Section 11. Except as specifically provided herein, this Eighth Amendment shall not in any manner alter, change, modify, or affect any of the rights, privileges, duties, or obligations of either of the parties hereto, under, or by reason of said Agreement, as amended. If there is any conflict between the provisions of this Eighth Amendment and the provisions of the Agreement, the provisions of this Eighth Amendment shall prevail.
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Whether or not specifically amended by this Eighth Amendment, all terms and provisions of the Agreement are amended to the extent necessary to give effect to the purpose and intent of this Eighth Amendment.
Amendment Section 12. This Eighth Amendment and any other document necessary for the consummation of the transaction contemplated by this Eighth Amendment may be executed in counterparts, including counterparts that are manually executed and counterparts that are in the form of electronic records and are electronically executed. An electronic signature means a signature that is executed by symbol attached to or logically associated with a record and adopted by a party with the intent to sign such a record, including facsimile or e-mail signatures. All executed counterparts shall constitute one amendment, and each counterpart shall be deemed an original. The parties hereby acknowledge and agree that electronic records and electronic signatures, as well as facsimile signatures, may be used in connection with the execution of this Eighth Amendment and electronic signatures, facsimile signatures or signatures transmitted by electronic mail in so-called PDF format shall be legal and binding and shall have the same full force and effect as if a paper original of this amendment had been delivered that had been signed using a handwritten signature. All parties to this Eighth Amendment (i) agree that an electronic signature, whether digital or encrypted, of a party to this Eighth Amendment is intended to authenticate this writing and to have the same force and effect as a manual signature; (ii) intended to be bound by the signatures (whether original, faxed, or electronic) on any document sent or delivered by facsimile or electronic mail or other electronic means; (iii) are aware that the other party(ies) will rely on such signatures; and, (iv) hereby waive any defenses to the enforcement of the terms of this Eighth Amendment based on the foregoing forms of signature. If this Eighth Amendment has been executed by electronic signature, all parties executing this document are expressly consenting, under the United States Federal Electronic Signatures in Global and National Commerce Act of 2000 (“E-SIGN”) and the California Uniform Electronic Transactions Act (“UETA”) (California Civil Code §1633.1 et seq.), that a signature by fax, e-mail, or other electronic means shall constitute an Electronic Signature to an Electronic Record under both E-SIGN and UETA with respect to this specific transaction.
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IN WITNESS WHEREOF, City has caused this Eighth Amendment to be executed on its behalf by the Chief Executive Officer, or his or her authorized signatory, and TCM has caused the same to be executed by its duly authorized officers, all as of the day and year first hereinabove written.
Approved as to form: |
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CITY OF LOS ANGELES |
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HYDEE FELDSTEIN SOTO, City Attorney |
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By: |
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By: |
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Deputy/Assistant City Attorney |
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Chief Executive Officer |
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City of Los Angeles, Department of Airports |
Date: |
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By: |
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Chief Financial Officer |
(SIGNATURE PAGE CONTINUES)
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URW AIRPORTS, LLC |
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By: |
/s/ Geoffrey Mason |
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Signature |
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Geoffrey Mason |
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EVP Development |
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Title |
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8
ACKNOWLEDGEMENT OF GUARANTOR
The undersigned, URW WEA LLC, (predecessor in interest to WESTFIELD AMERICA, INC., a Missouri corporation) (herein, “Guarantor”), hereby represents, acknowledges, and agrees as follows: (1) Guarantor has been and remains the guarantor of TCM’s obligations under the LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT BETWEEN THE CITY OF LOS ANGELES AND URW AIRPORTS, LLC, LAA-8640, dated June 22, 2012, as amended by that (i) First Amended and Restated Los Angeles International Airport Food & Beverage Concession Agreement (ii) Second Amendment, (iii) Third Amendment, (iv) Fourth Amendment, (v) Fifth Amendment, (vi) Sixth Amendment, (vii) Seventh Amendment thereto (as amended, “Agreement”), pursuant to that certain Concession Guaranty executed concurrently with the execution of the Agreement (the “Guaranty”); (2) Guarantor has reviewed the foregoing EIGHTH AMENDMENT TO THE LOS ANGELES INTERNATIONAL AIRPORT TERMINAL COMMERCIAL MANAGEMENT CONCESSION AGREEMENT BETWEEN THE CITY OF LOS ANGELES AND URW AIRPORTS, LLC (“Eighth Amendment”); (3) Guarantor approves of TCM’s execution of the Eighth Amendment and agrees with its terms; and (4) the Guaranty is hereby reaffirmed, and the Guaranty is and remains in full force and effect and continues to guarantee the prompt payment and performance by TCM of all of the terms of the Agreement, as amended. This Acknowledgement of Guarantor has been executed as of the date of execution of the Eighth Amendment by TCM.
“GUARANTOR”
URW WEA LLC |
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a Delaware limited liability company |
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By: |
/s/ Aline Taireh |
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Signature |
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Aline Taireh |
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Print Name |
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Its: |
Executive Vice President, General Counsel and Secretary |
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.20.9
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BOARD FILE NOS. |
LAA-8613K |
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LAX Van Nuys City of Los Angeles Karen Bass Board of Airport Karim Webb Matthew M. Johnson Vanessa Aramayo John Ackerman |
RESOLUTION NO. 28276 WHEREAS, on recommendation of Management, there was presented for approval, Consent to Transfer of Ownership from Westfield Development LLC to ASUR US Commercial Airports LLC covering the terminal commercial management agreements for Terminals 1, 2, 3, 6 and the Tom Bradley International Terminal at Los Angeles International Airport; and WHEREAS, Westfield Development LLC is the sole equity holder of URW Airports Inc., which holds the terminal commercial management (TCM) agreements for Terminals 1, 2, 3, 6 and the Tom Bradley International Terminal (TBIT) at Los Angeles International Airport (LAX); and WHEREAS, the requested action allows ASUR US Commercial Airports LLC (ASUR) to take over all interests associated with the TCM agreements. Following the transfer, ASUR will manage and further develop the concessions programs in Terminals 1, 2, 3, 6 and TBIT, will maintain the current LAX operations team, will commit ASUR to specific requirements agreed upon by ASUR and Los Angeles World Airports to ensure the successful delivery of the transformation plan to be completed prior to the 2028 Olympic and Paralympic Games and continued excellence beyond 2028; and WHEREAS, actions taken on this item by the Board of Airport Commissioners will become final pursuant to the provisions of Los Angeles City Charter Section 606; NOW, THEREFORE, BE IT RESOLVED that the Board of Airport Commissioners adopted the staff report; further adopted staff’s determination that the requested action is exempt from the California Environmental Quality Act (CEQA) pursuant to Article II, Section 2.f of the Los Angeles City CEQA Guidelines; approved the Consent to Transfer of Ownership from Westfield Development LLC to ASUR US Commercial Airports LLC covering the terminal commercial management agreements for Terminals 1, 2, 3, 6 and the Tom Bradley International Terminal at Los Angeles International Airport; and authorized the Chief Executive Officer, or designee, to execute said Consent to Transfer of Ownership from Westfield Development LLC to ASUR US Commercial Airports LLC subject to approval by the Los Angeles City Council and approval as to form by the City Attorney. o0o |
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I hereby certify that this Resolution No. 28276 is true and correct, as adopted by the Board of Airport Commissioners at its Special Meeting held on Thursday, November 13, 2025. |
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/s/ Esther N. Alailima Semeatu |
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Esther N. Alailima Semeatu - Assistant Secretary |
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Approved by the Los Angeles City Council on December 2. 2025 |
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Board File |
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No. LAA-8640I |
9th AMENDMENT AND CONSENT TO TRANSFER
(LAA-8640)
THIS 9th AMENDMENT AND CONSENT TO TRANSFER (this “Consent”) executed this 4th day of December, 2025, by and among the CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS (“City”), acting by order of and through its BOARD OF AIRPORT COMMISSIONERS (“Board”), and URW AIRPORTS, LLC (f/k/a WESTFIELD CONCESSION MANAGEMENT, LLC), a Delaware limited liability company (“TCM”), ASUR US COMMERICAL AIRPORTS, LLC, a Delaware limited liability company (“Transferee”), and AEROPUERTO DE CANCUN, S.A. DE C.V., a Mexican corporation (“New Guarantor”).
WITNESSETH:
WHEREAS, City, acting by order of and through its Board, and TCM entered into that certain Los Angeles International Airport Terminal Commercial Management Concession Agreement, dated as of June 22, 2012 (as amended, “LAX Lease 2”or “Master Agreement”), conveying certain premises at Los Angeles International Airport and obligating TCM to operate, maintain and sublease said premises; and
WHEREAS, TCM is owned by Westfield Development, Inc., a Delaware corporation (“Transferor”); and
WHEREAS, TCM’s obligation under LAX Lease 2 is guaranteed by URW WEA LLC (f/k/a Westfield America, Inc.) (“Current Guarantor”), pursuant to a Guaranty Agreement dated June 22, 2012 (as amended from time to time, “Guaranty Agreement 2” or “Current Guarantee”); and
WHEREAS, Transferor intends to transfer 100% of its interest in TCM to Transferee (“Transfer”) and has requested consent to such transfer and a release of Current Guarantor of its obligations under the Current Guarantees in exchange for New Guarantee from New Guarantor; and
WHEREAS, the Master Agreement provides that no interest in the ownership of TCM may be transferred without obtaining the prior written consent of City; and
WHEREAS, the Current Guarantees may only be terminated with the prior written consent of City.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1.City hereby consents to the Transfer, subject to the conditions set forth in this Consent. In consideration of City’s consent to the Assignment Agreement, Assignee accepts all terms and conditions in Exhibit B of this Consent (“Assignment Conditions”).
The Terminal Commercial Management Agreement is hereby amended, mutatis mutandis, to give full effect to the Assignment Conditions, and any breach of the Assignment Conditions shall be a General Non-Monetary Default of the Master Agreement, subject to cure under Section 11.1.12 of the Master Agreement.
2.Neither this Consent nor the Transfer shall operate to waive, modify, release or in any manner affect TCM’s liability under the Master Agreement. This Consent is subject to receipt by City of guarantees (“New Guarantee”) from New Guarantor in the form attached hereto as Exhibit A and this Consent shall be null and void if the New Guarantee are not received by TCM on or prior to the date that is five (5) business days after the consummation of the Transfer (the “Transfer Date”). Upon receipt of the New Guarantee, the Current Guarantees shall automatically terminate and Current Guarantor shall have no further obligation arising therefrom for any liability arising subsequent to the Transfer Date. No other transfer, assignment or sublease of all or of any part of the rights and obligations of the Master Agreement shall be made by TCM without the prior written approval of City, except as provided in the Master Agreement.
3.Transferee hereby represents and warrants to City that:
(a) |
Transferee and New Guarantor have the full power, authority and legal right to execute and deliver, and to perform its obligations under this Consent; |
(b) |
this Consent constitutes the legal, valid and binding obligation of Transferee and New Guarantor enforceable in accordance with its terms; |
(c) |
the execution, implementation or performance of this Consent will not contravene any other contractual arrangements of Transferee or New Guarantor; |
(d) |
Transferee and New Guarantor are not Prohibited Persons (as such term is defined in the Master Agreement); |
(e) |
Transferee and New Guarantor are financially responsible, of good reputation, and engaged in a business which is in keeping with the standards of City in those respects for the Master Agreement; |
(f) |
Transferee understands and acknowledges the current and future obligations of TCM under the Master Agreement and Tranfseree shall continue to operate TCM in a commercially reasonable manner, of a quality and consistency at least comparable with its operation over the prior term of the Master Agreement; and |
(g) |
Transferee shall ensure that TCM maintains cash reserves as required under the Master Agreement. |
(h) |
Transferee shall, effective as of the Transfer Date, accept and assume from WEA Finance, LLC and TCM all rights, duties, liabilities and obligations (including any amounts owed) under and in respect of those certain letters of credit identified on Exhibit C attached hereto and, on or no later than five (5) business days after the |
2
Transfer Date, deliver to City an executed assignment and assumption agreement with WEA Finance, LLC, TCM and Bank of America, N. A. to that effect.
(i) |
No later than five (5) business days after the Transfer Date, Transferee shall provide evidence of its California foreign limited liability name change and City of Los Angeles BTRC effected in connection with the Transfer. |
3.Any notices, demands, request or other communications given or required to be given under this Consent or the Master Agreement shall be effective only if given in writing, sent by registered or certified mail (return receipt requested), by hand-delivery, or by national overnight courier to all or any of the respective parties at the following addresses:
Transferee’s Address: |
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Grupo Aeroportuario del Sureste, SAB de CV |
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With a copy to: |
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Cleary Gottlieb Steen & Hamilton LLP |
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City’s Address: |
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Per the Master Agreement |
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New Guarantor’s Address: |
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Grupo Aeroportuario del Sureste, SAB de CV |
or at such other addresses as any of the parties may designate by notice in writing to the other parties hereunder or under the Master Agreement for receipt of future notices.
4.This Consent shall not: (i) modify, waive, impair or affect provisions of the Master Agreement; (ii) waive any breach of the Master Agreement or any rights of City against TCM; or (iii) enlarge or increase the obligations of City under the Master Agreement. Except as specifically provided herein, this Consent shall not in any manner alter, change, modify, or affect any of the rights, privileges, duties, or obligations of either of the parties hereto, under, or by reason of said Agreement, as amended.
5.This Consent shall be binding on the parties hereto and their respective successors and assigns. This Consent may not be amended other than in an instrument in writing signed by all of the parties hereto; provided that the parties hereto are expressly forbidden from amending this Consent to the extent such amendment would modify the substance of this Consent in a
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manner adverse to the Current Guarantor without the Current Guarantor’s prior written consent. The Current Guarantor shall be an express third-party beneficiary of this Consent.
6.This Consent and any claim, dispute or controversy arising out of, under or related to this Consent, the relationship of the parties to this Consent, and/or the interpretation and enforcement of the rights and obligations of the parties to this Consent shall be governed by, interpreted and construed in accordance with the laws of the State of California, without regard to choice of law principles.
7.This Consent may be executed by the parties hereto in separate counterparts, and may be delivered in separate counterparts by electronic (“email”) delivery in “portable document format” (“pdf ”), each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of the signature page to this Consent by pdf shall be as effective as delivery of a manually executed counterpart of this Consent and shall be given full legal effect in accordance with applicable laws.
8.In the event of a conflict between the terms hereof and the Master Agreement, this Consent shall control to the extent of any such conflict.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the date first set forth above.
Approved as to form: |
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CITY OF LOS ANGELES |
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HYDEE FELDSTEIN SOTO, |
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By signing below, the signatories attest that they have no personal, financial, beneficial, or familial interest in this contract. |
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City Attorney |
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By: |
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By: |
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Deputy/Assistant City Attorney |
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Chief Executive Officer |
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City of Los Angeles, Department of |
Date: |
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Airports |
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By: |
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Chief Financial Officer |
[SIGNATURES CONTINUED ON NEXT PAGE]
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TCM:
URW AIRPORTS, LLC,
a Delaware limited liability company
By: |
/s/ Geoffrey Mason |
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Name: |
Geoffrey Mason |
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Title: |
President & Secretary |
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[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
TRANSFEREE:
ASUR US COMMERICAL AIRPORTS, LLC,
a Delaware limited liability company
By: |
/s/ Adolfo Castro Rivas |
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Name: |
Adolfo Castro Rivas |
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Title: |
Chief Executive and Chief Financial Officer |
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[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
NEW GUARANTOR:
AEROPUERTO DE CANCUN, S.A. DE C.V.,
a Mexican corporation
By: |
/s/ Adolfo Castro Rivas |
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Adolfo Castro Rivas |
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Representative |
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EXHIBIT A
GUARANTY AGREEMENT
[**]
IN WITNESS WHEREOF, City has caused this Guaranty to be executed on its behalf by Executive Director and Guarantor has caused the same to be executed by its duly authorized officers and its corporate seal to be hereunto affixed, all as of the day and year first above written.
APPROVED AS TO FORM: |
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CITY OF LOS ANGELES |
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Date |
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Executive Director |
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Deputy/Assistant City Attorney |
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ATTEST: |
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AEROPUERTO DE CANCÚN, S.A. DE C.V. |
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By |
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ATTEST: |
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WESTFIELD AMERICA, INC. |
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EXHIBIT B
ASSIGNMENT CONDITIONS
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Terminal Commercial Manager (“TCM”) agrees to provide Los Angeles World Airports (“LAWA”) monthly updates regarding progress for each of the items below that are ongoing.
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ASUR agrees to the stated timelines below subject to LAWA’s support and timely approvals (as needed). The timelines below assume approval/response/feedback from LAWA within 10 business days after a request is made.
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[**]
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The parties agree that conditions #3 (Open/Close Monitoring Tech), #5 (Point of Sale Data), #12 (measure queue, regarding tech component), and #13 (re-concepting), require amendments to existing subleases with tenants. Such obligations will need to be included in future amendments with tenants, and LAWA agrees to require such conditions as part of the amendment consent process.
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5 |
ASUR/URW must provide accessibility to all data as requested, such as POS data, queue times, daily sales details, including POS data and ensure LAWA retains ability to access and control customer data as requested. |
TCM shall do the following: Q1 2026 Phase 1: Assessment (Days 1-90) Evaluate current solution viability. Research alternative solutions and deployment requirements, including legal constraints Phase 2: Selection & Alignment (Days 91-150) Procure chosen solution. Provide LAWA with lease language for TCM inclusion in Tenant Agreements, including adoption deadline (based on deployment timeline). Assess total investment cost. Meet with LAWA to confirm final selection and integration feasibility. Phase 3: Deployment Planning (Days 151-220) Develop detailed deployment plan. Align on usage protocols, reporting standards, and communication strategy. Phase 4 (per deployment schedule): Implementation |
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ASUR/URW must demonstrate the capital investment commitments in each location to advance the terminal theme and include unexpected elements that surprise and delight - include one development of one ‘key experience’ and programming element by terminal and a non food and beverage/retail. A plan must be presented within three months with discussions to follow on implementation timeline. |
Beyond what has already been proposed as part of the Midterm Refurbishment Plan, TCM shall implement at least one key experience by terminal and will present within 3 months as proposed by LAWA. TCM shall also selectively submit ideas for non-premise (reimbursable) to holistically address the terminal experience and will collaborate with LAWA on this process. TCM requires 10-day approval windows to protect schedule. Further, TCM shall explore the potential of retaining Story land &/or Gensler, along with comparable third-party proposals for competitive tension, towards ensuring vision alignment, speed and synergies. |
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EXHIBIT C
Letters of Credit
[**]
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.21
CHICAGO O’HARE INTERNATIONAL
AIRPORT
Concession Redevelopment and Management Lease
Agreement
between
City of Chicago
and
Westfield Concession Management, LLC
SEPTEMBER 1, 2011
Table of Contents
Content |
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ARTICLE 1 DEFINITIONS AND ATTACHMENTS |
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1.1 |
Basic Data |
6 |
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1.2 |
Additional Defined Terms |
9 |
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1.3 |
Attachments |
17 |
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ARTICLE 2 CONCESSION PREMISES, OFFICE PREMISES AND STORAGE PREMISES; RIGHTS OF TENANTS AND SUBTENANTS |
18 |
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2.1 |
Premises |
18 |
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2.2 |
Additional Concession Premises |
20 |
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2.3 |
Relocation Space |
21 |
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2.4 |
Permitted Uses |
23 |
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2.5 |
Prohibited Uses |
23 |
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2.6 |
Appurtenant Rights |
23 |
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2.7 |
Rights Regarding Personal Property in the Premises |
24 |
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ARTICLE 3 SUBLEASING TO SUBTENANTS |
24 |
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3.1 |
Nature ofSubtenants |
24 |
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3.2 |
Selection of Initial Operators |
24 |
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3.3 |
Selection of Other Subtenants |
24 |
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3.4 |
Standard Sublease Agreement |
25 |
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3.5 |
Documentation of Agreement with Subtenants |
28 |
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3.6 |
Defaults Under Subleases |
28 |
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3.7 |
Providing Continuous Concession Program Operations |
29 |
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ARTICLE 4 TERM |
30 |
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4.1 |
Primary Term |
30 |
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4.2 |
Termination |
31 |
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4.3 |
Holding Over |
32 |
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4.4 |
Surrender |
33 |
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4.5 |
[Intentionally omitted] |
33 |
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4.6 |
Termination Due to Change in Airport Operations |
33 |
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ARTICLE 5 RENT, REPORTS AND AUDITS |
34 |
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5.1 |
Rent |
34 |
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5.2 |
Time of Payments |
36 |
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5.3 |
No Waiver or Setoff |
36 |
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5.4 |
Material Underpayment or Late Payment |
37 |
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5.5 |
Security Deposit |
37 |
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5.6 |
Reports |
39 |
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5.7 |
Adjustments Based Upon Annual Certified Statements |
40 |
5.8 |
Books, Record and Audits |
40 |
5.9 |
Liens |
42 |
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ARTICLE 6 TRANSFERS OTHER THAN SUBLEASES |
42 |
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6.1 |
City |
42 |
6.2 |
Tenant |
42 |
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ARTICLE 7 CONCESSION MANAGEMENT AND OPERATIONS |
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7.1 |
Concession Plan |
45 |
7.2 |
Tenant’s Concession Management program Responsibilities |
45 |
7.3 |
Service to the Public |
46 |
7.4 |
Maximization of Business |
46 |
7.5 |
Obligation to Discontinue |
47 |
7.6 |
Annual Marketing Plan |
47 |
7.7 |
Standards of Service |
47 |
7.8 |
Concession Monitoring |
49 |
7.9 |
Street Pricing |
51 |
7.10 |
Other Pricing Policy |
52 |
7.11 |
Subtenant Sales |
52 |
7.12 |
Vendors, Suppliers and Contractors |
52 |
7.13 |
Access for Delivery and Removal |
52 |
7.14 |
Efficient Use of Space |
52 |
7.15 |
No Waste or Nuisance |
53 |
7.16 |
Signs/Corporate Identification/Promotional Materials |
53 |
7.17 |
Cleaning, Janitorial and Pest Control |
53 |
7.18 |
Revenue Control |
53 |
|
|
|
ARTICLE 8 CONSTRUCTION, MAINTENANCE AND REPAIR |
54 |
|
8.1 |
City Improvements |
54 |
8.2 |
City Maintenance and Repair |
54 |
8.3 |
Tenant and Subtenant Improvements |
54 |
8.4 |
Tenant and Subtenant Construction Process |
55 |
8.5 |
Certified Construction Costs |
56 |
8.6 |
No Mechanics’ Liens |
57 |
8.7 |
City Resident Construction Worker Employment Requirement |
58 |
8.8 |
Licensing of General Contractor |
60 |
8.9 |
Prevailing Wages |
60 |
8.10 |
Contractor Certifications |
60 |
8.11 |
Subtenant Minimum Investment |
61 |
8.12 |
Periodic Refurbishment Reinvestment |
61 |
8.13 |
Ownership of Improvements |
61 |
8.14 |
Tenant Maintenance and Repair |
62 |
8.15 |
Performance of Improvements, Maintenance and Repairs |
62 |
8.16 |
Certain Rights Reserved by the City |
63 |
8.17 |
Visual Rights Act |
65 |
3
8.18 |
Casualty and Restoration |
65 |
|
|
|
ARTICLE 9 UTILITIES |
68 |
|
9.1 |
Utilities to Premises |
68 |
9.2 |
Tenant’s Acts |
68 |
9.3 |
No Constructive Eviction |
69 |
9.4 |
Energy Conservation |
69 |
|
|
|
ARTICLE 10 ENVIRONMENTAL |
69 |
|
10.1 |
Environmental Laws |
69 |
10.2 |
Hazardous Substances |
69 |
10.3 |
Environmental Representations and Warranties |
69 |
10.4 |
Notices |
70 |
10.5 |
No Illegal Dumping |
71 |
10.6 |
Sustainable Airport Practices |
72 |
|
|
|
ARTICLE 11 INSURANCE AND INDEMNITY |
72 |
|
11.1 |
Tenant’s and Subtenant’s Insurance |
72 |
11.2 |
Indemnification |
72 |
|
|
|
ARTICLE 12 COMPLIANCE WITH LAWS |
73 |
|
12.1 |
Compliance with Laws |
73 |
12.2 |
Economic Disclosure Statements and Affidavits |
74 |
12.3 |
Inspector General |
74 |
12.4 |
Section 2-92-586 of the Municipal Code |
74 |
12.5 |
Airport Security |
74 |
12.6 |
Prohibition on Certain Contributions |
76 |
12.7 |
City Ethics Ordinance |
77 |
12.8 |
Business Relations with Elected Officials |
77 |
12.9 |
Eligibility to Do Business |
78 |
12.10 |
Office of Compliance |
78 |
|
|
|
ARTICLE 13 RETAINED RIGHTS OF CITY |
78 |
|
13.1 |
Rights to Enter, Inspect and Repair |
78 |
13.2 |
Accommodation of Airport Construction |
79 |
13.3 |
Status Report |
80 |
13.4 |
Eminent Domain |
80 |
|
|
|
ARTICLE 14 FAA PROVISIONS |
80 |
|
14.1 |
No Exclusive Rights |
80 |
14.2 |
Airport Landing Area |
81 |
14.3 |
No Obstruction |
81 |
14.4 |
Navigation Easement |
81 |
14.5 |
National Emergency |
81 |
14.6 |
Airport Rules and Regulations |
81 |
4
ARTICLE 15 SPECIAL CONDITIONS |
82 |
|
15.1 |
Warranties and Representations |
82 |
15.2 |
Business Documents, Disclosure of Ownership Interest and Maintenance of Existence |
85 |
15.3 |
Licenses and Permits |
85 |
15.4 |
Confidentiality |
85 |
15.5 |
Shalanan |
86 |
|
|
|
ARTICLE 16 NONDISCRJMINATION AND AFFIRMATIVE ACTION |
87 |
|
16.1 |
Non-Discriminations |
87 |
16.2 |
Airport Concession Disadvantaged Business Enterprises |
89 |
16.3 |
MBE/WBE Compliance |
90 |
16.4 |
Other Provisions |
90 |
|
|
|
ARTICLE 17 DEFAULT, REMEDIES AND TERMINATION |
90 |
|
17.1 |
Events of Default |
90 |
172 |
Remedies |
92 |
17.3 |
Commissioner’s Right to Perform Tenant’s Obligations |
94 |
17.4 |
Effect of Default and Remedies |
95 |
17.5 |
Tenant’s Right to Perform City Obligations |
95 |
|
|
|
ARTICLE 18 GENERAL PROVISIONS |
96 |
|
18.1 |
Entire Lease |
96 |
18.2 |
Counterparts |
96 |
18.3 |
Amendments |
96 |
18.4 |
Severability |
96 |
18.5 |
Covenants in Subleases and Contracts |
96 |
18.6 |
Governing Law |
97 |
18.7 |
Approvals |
97 |
18.8 |
Notices |
97 |
18.9 |
Successors and Assigns |
98 |
18.10 |
Subordination |
98 |
18.11 |
Conflict |
99 |
18.12 |
Offset by Tenant |
99 |
18.13 |
Waiver Remedies |
99 |
18.14 |
Authority of Commissioner |
99 |
18.15 |
Estoppel Certificate |
99 |
18.16 |
No Personal Liability |
100 |
18.17 |
Limitation of City’s Liability |
100 |
18.18 |
Joint and Several Liability |
101 |
18.19 |
Non-Recordation |
101 |
18.20 |
Survival |
101 |
18.21 |
Force Majeure |
101 |
5
CIDCAGO O’HARE INTERNATIONAL AIRPORT
TERMINAL 5
CONCESSION REDEVELOPMENT and MANAGEMENT LEASE
AGREEMENT
BY AND BETWEEN
CITY OF CHICAGO
AND
WESTFIELD CONCESSION MANAGEMENT, LLC
THIS CONCESSION REDEVELOPMENT AND MANAGEMENT LEASE AGREEMENT (the “Lease”) is made as of this 1st day of September, 2011 (“Effective Date”), by and between the CITY OF CHICAGO, a municipal corporation and home rule unit of local government under the Constitution of the State of Illinois, acting through its Chicago Department of Aviation (hereinafter the “City”) having a usual place of business at 10510 West Zemke Road, Chicago, Illinois 60666 and WESTFIELD CONCESSION MANAGEMENT, LLC (the “Tenant”), a Delaware limited liability company authorized to conduct business in the State of Illinois, with a principal place of business at 11601 Wilshire Boulevard, 11 th Floor, Los Angeles, CA 90025. The City and Tenant may hereinafter be referred to individually as a “Party” and collectively as the “Parties.”
The City and Tenant hereby agree as follows:
ARTICLE 1
DEFINITIONS AND ATTACHMENTS
1.1Basic Data. Each reference in this Lease to any of the following subjects shall incorporate the data or definition specified below:
Airport: |
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Chicago O’Hare International Airport, Chicago, IL |
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|
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Terminal 5: |
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The international flight terminal of the Airport (hereinafter the “Terminal”). The Terminal is currently approximately 1,236,000 square feet and currently includes 21 gates and 5 ramp boarding areas. |
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City: |
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City of Chicago, acting through the Chicago Department of Aviation. |
|
|
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City’s Representative: |
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The Commissioner. |
|
|
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Commissioner: |
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The Commissioner of the Department and any City officer or employee authorized to act on his/her behalf. |
6
|
|
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Department: |
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Chicago Department of Aviation or CDA. |
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|
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Department’s Notice Address: |
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10510 West Zemke Road |
|
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Chicago, Illinois 60666 |
|
|
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Tenant: |
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Westfield Concession Management, LLC. |
|
|
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Tenant’s Representative(s): |
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Senior Vice-President, Airports and Office of Legal Counsel, Attn: Associate General Counsel. |
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Tenant’s Notice Address: |
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2730 University Blvd., Suite 900 |
|
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Wheaton, Maryland 20902 |
|
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Attention: Office of Legal Counsel |
|
|
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Transition Premises: |
|
The existing Concession Premises at the time of the delivery of the Premises by the City to Tenant consisting of approximately 15,200 square feet of area and all appurtenances and fixtures attached thereto located in Terminal 5, as more particularly described on Exhibit A and which shall be phased out during the redevelopment of the Concession Program. |
|
|
|
New Concession Premises: |
|
Approximately 25,500 square feet of area and all appurtenances and fixtures attached thereto located in Terminal 5, as more particularly described and shown on Exhibit A attached hereto. |
|
|
|
Storage Premises: |
|
Approximately 4,000 square feet of backroom storage area located in Terminal 5, as more particularly described and shown on Exhibit A attached hereto. |
|
|
|
Office Premises: |
|
Initially, approximately 300 square feet of area located in Terminal 5, as more particularly described and shown on Exhibit A attached hereto. Prior to the Redevelopment of the Concession Program, the Department shall relocate and/or expand the Office Premises to be approximately 1,200 square feet of area located in Terminal 5, as more particularly described and shown on Exhibit A attached hereto. |
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|
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Permitted Uses: |
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As provided in Article 2. |
7
Term: |
|
That period commencing on the Effective Date and ending at 11:59 p.m. on the Expiration Date, unless sooner terminated as provided herein. |
|
|
|
Rent Commencement Date: |
|
[**] |
|
|
|
Expiration Date: |
|
[**] |
|
|
|
Minimum Annual Guarantee: |
|
[**] |
|
|
|
Percentage Rent: |
|
[**] |
|
|
|
Additional Concession Percentage Rent: |
|
[**] |
8
|
|
[**] |
|
|
|
Premises Rent: |
|
An annual amount which is the greater of: (a) the Minimum Annual Guarantee; or (b) the sum of Percentage Rent and Additional Concession Percentage Rent, if applicable, as set forth in Article 5. |
|
|
|
Rent: |
|
Collectively, Premises Rent, Additional Rent and any other charge or amount due from Tenant under this Lease as more particularly described and set forth in Article 5. |
|
|
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City’s Address for Rent Payments: |
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Office of the City Comptroller |
|
|
333 South State Street, Room 402 |
|
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Chicago, Illinois 60614 |
|
|
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Security Deposit: |
|
Within one hundred twenty days following the execution of this Lease, a Letter of Credit [**] in form acceptable to the City as provided in Article 5. After completion of the Redevelopment, this letter of credit will be amended to reflect an amount equal to three (3) months of the first Lease Years’ Minimum Annual Guarantee, which shall be delivered to the City on or before the Latest Date of Beneficial Occupancy. |
|
|
|
Construction Bond: |
|
Prior to the commencement of Tenant’s construction of the Redevelopment (as defined below), a payment and performance bond guaranteeing completion of Tenant’s construction Work for the Redevelopment in an amount of Tenant’s construction Contracts shall be delivered by Tenant to the Department. |
1.2Additional Defined Terms. As used herein, the following terms shall have the meanings specified below:
“Actual Enplaned Passengers” shall mean international passengers who board an airplane departing from the Terminal as reported to the City by the airlines using Gates in the Terminal. The City shall provide Tenant with Actual Enplaned Passengers data promptly after such data becomes available to the City.
9
“Additional Rent” shall mean all other payments due under this Lease of any kind or nature other than Premises Rent.
“Affiliate’’ shall mean except where otherwise defined, means any individual, corporation, partnership, trustee, administrator, executor or other legal entity that directly or indirectly owns or controls, or is owned or controlled by, or is under common ownership or control with Tenant.
“Airport Concession Disadvantaged Business Enterprise” or “ACDBE” shall mean an entity meeting the definition of a disadvantaged business enterprise as defined in U.S. Department of Transportation Regulations Title 49 Code of Federal Regulations, Parts 23 and 26, as amended from time to time (“Regulations”) and certified in accordance with those Regulations and as further set forth in Section 16.2 hereof. Tenant shall act as the City’s representative in monitoring Subtenants’ compliance with the Regulations and reporting ACDBE participation in the Concession Program, including Subtenants’ good faith efforts as required by the Regulations to comply with the Special Conditions Regarding ACDBE participation as attached hereto as Exhibit C, and Tenant shall include such Special Conditions in each of its applicable subleases (those subleases including an ACDBE participant) of Premises. Failure of a Subtenant to comply with such Special Conditions shall be a default by the Subtenant under the Sublease. The Special Conditions may be amended by the City from time to time to reflect changes in the Regulations and such amended Special Conditions shall be binding, to the extent applicable, on Tenant and its Subtenants.
“Airport Concession Program Handbook” shall mean Exhibit J, as it may be amended from time to time by the Department. Any amendment of the Airport Concession Program Handbook by the Department during the Term of this Lease will be binding on Tenant without need for amendment of this Lease. In the event of any conflict or inconsistency between the provisions of this Lease and the Airport Concession Program Handbook and this Lease, this Lease shall be controlling.
“Annual Certified Statement” shall mean a statement in the form of the Annual Certified Statement attached hereto as Exhibit K setting forth the in the aggregate all of the Subtenants’ ‘‘Gross Receipts” as hereinafter defined generated at, on or from the Premises and the amount of Premises Rent payable to the City, all in accordance with Section 5.1(c), for each Lease Year of the Term. The Annual Certified Statement shall be accompanied by the certification of an independent certified public accounting firm reasonably acceptable to the City. The City may change the form of the Annual Certified Statement upon thirty (30) days prior written notice to Tenant.
“Base Building Improvements” shall mean those Improvements to be constructed by Tenant’s Contractors as part of the Redevelopment.
“Chief Procurement Officer” shall mean the head of the Department of Procurement Services of the City and any City officer or employee authorized to act on her behalf.
10
“Common Areas” shall mean those areas of the Terminal that are not leased, licensed, or otherwise designated or made available by the Department for exclusive or preferential use by specific party or parties.
“Concession Premises” shall mean the existing Transition Premises (until closed following redevelopment of the Concession Program), the New Concession Premises and, if applicable, the Additional Concession Premises.
“Concession Plan” shall mean the comprehensive plan for the development and implementation of the Concession Program as further described in Section 7.1 to be submitted to the City for approval in accordance with said Section 7.1. Such Concession Plan shall be consistent with all applicable sections of Tenant’s Proposal as the same have been approved by the City and shall include, without limitation, at least one (1) pre-security food and beverage concession location operating on a twenty-four (24) hour per day basis.
“Concession Program” shall mean the first class food and beverage operations and retail service operations within the Concession Premises in accordance with the Concession Plan.
“Concession Tenant Design and Construction Procedures Manual” or “TDCPM” shall mean those certain design standards and policies prepared by the Department for tenants at the Airport, as amended by the Department from time to time.
“Contractor” means all entities providing Work, services and/or materials to Tenant or its Subtenants necessary for Concession operations or for the design, construction, repair, and maintenance of the Premises and Improvements. The term Contractor also includes subcontractors of any tier, suppliers and materialmen, whether or not in privity with Tenant or its Subtenants.
“Contracts” shall mean all written agreements with Contractors.
“Construction Documents” shall mean the drawings and specifications for the construction of Improvements, approved by the Commissioner pursuant to Article 8.
‘‘Date of Beneficial Occupancy” shall mean the date on which Tenant shall assume the Transition Premises in accordance with the terms and conditions of this Lease (the “Earliest Date of Beneficial Occupancy”); and the date which is the earlier to occur of: (i) 180 days following the date that the City has delivered the Concession Premises to Tenant and all permits required for the construction by Tenant of the Redevelopment and Tenant’s Base Building Improvements and the build-out of the Concession Premises by the Subtenants have been approved and issued by all applicable permitting agencies, or (ii) the date on which the entire redeveloped concession locations and the associated Redevelopment of Terminal have been completed and all of the Concession Premises initially opened for business to the public (the “Latest Date of Beneficial Occupancy”). The Latest Date of Beneficial Occupancy shall be confirmed in writing by the parties. Unless otherwise specifically stated herein, reference in this Lease to Date of Beneficial Occupancy shall mean the Latest Date of Beneficial Occupancy.
11
“Days” shall mean calendar days unless otherwise specified herein.
“Default Rate” shall mean twelve percent (12%) per annum, but in no event higher than the highest rate permitted by law.
“Development Plan” shall mean the Tenant’s and its Subtenants’ conceptual plans for the Redevelopment, including construction of Improvements and commencement of Concession operations, as set forth in Article 8.
“Environmental Laws” shall mean collectively, all applicable federal, state and local environmental, safety or health laws and ordinances and rules or applicable common law, including the Occupational Safety and Health Act of 1970, as amended (29 U.S.C. §651 et seq.), the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. §9601 et seq.), the Hazardous Materials Transportation Authorization Act of 1994 (49 U.S.C. §5101 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.), the Toxic Substances Control Act of 1976, as amended (15 U.S.C. §2601 et seq.), the Clean Air Act (42 U.S.C. §7401 et seq.), the Clean Water Act (33 U.S.C. §1251 et seq.), the Safe Drinking Water Act (42 U.S.C. §300(f) et seq.) as any of the foregoing may later be amended from time to time; any rule or regulation pursuant to them, and any other present or future law, ordinance, rule, regulation, permit or permit condition, order or directive addressing environmental, health or safety issues of or by the federal government, or any state or other political subdivision of it, or any agency, court or body of the federal government, or any state or other political subdivision of it, exercising executive, legislative, judicial, regulatory or administrative functions.
“Existing Contamination” shall mean any and all pollution or contamination caused by any Hazardous Material that previously existed in or exists in, or was released onto, the soil or groundwater at or beneath the Premises,. the Terminal or the Airport or located within the Premises, the Terminal or the Airport as of the date the City first delivered the Premises to Tenant for Tenant’s occupancy under this Lease.
“Event of Default” shall mean that meaning as described in Article 17.
“Force Majeure” shall mean any event beyond the control of the party claiming it, including but not limited to, acts of God, acts of a public enemy (such as war (declared or undeclared), invasion, insurrection, terrorism, riots or rebellion), fires floods, earthquakes, hurricanes, explosions, and strikes which wholly or materially prevents or impairs either party from performing its obligations in strict accordance herewith, provided, however, that any lack of funds shall not be deemed a cause beyond the control of a party.
“GAAP” shall mean generally accepted accounting principles in the United States consistently applied.
“Gates” shall mean those portions of the Terminal used for passengers to board and disembark from aircraft.
12
[**]
13
[**]
“Hazardous Materials” shall mean, but shall not be limited to, any oil, petroleum product and any hazardous or toxic waste or substance or any substance which because of its quantitative concentration, chemical, radioactive, flammable, explosive, infectious or other characteristics, constitutes or may reasonably be expected to constitute or contribute to a danger or hazard to public health, safety or welfare or to the environment, including, without limitation, any asbestos (whether or not friable) and any asbestos-containing materials, lead paint, waste oils, solvents and chlorinated oils, polychlorinated biphenyls (PCBs), toxic metals, explosives, reactive metals and compounds, pesticides, herbicides, radon gas, urea formaldehyde foam insulation and chemical, biological and radioactive waste or any other similar materials which are included under or regulated by any Environmental Law.
“International Terminal Use Agreement” shall mean, collectively, the respective agreements entitled the Chicago-O’Hare International Airport International Terminal Use Agreement and Facilities Lease, dated as of January 1, 1990 between and among the City and the respective airlines utilizing the Terminal named therein, and as amended.
“Improvements” shall mean any permanent addition, alteration, annexation or improvement which shall become affixed to the Premises or a portion thereof which cannot be removed, modified or changed without damage to, or destruction of, either itself or the Premises or a portion thereof. Improvements shall include Tenant’s Base Building Improvements and Subtenant Fixed Improvements as described in Article 8.
“Improvement Costs” shall mean individually and collectively, Tenant’s Certified Construction Costs for Tenant’s Base Building Improvements and each Subtenant’s Certified Construction Costs for each Subtenant’s Fixed Improvements, as the case may be, as described in Article 8.
[**]
14
[**]
“Monthly Certified Statement” shall mean the statement in the form of the “Monthly Certified Statement” attached hereto as Exhibit L, which sets forth Tenant’s calculation of Premises Rent as defined herein and pursuant to Section 5.7(a), for each prior calendar month or portion thereof during the Term. The Monthly Certified Statement shall be signed by a person authorized to sign for Tenant and shall be certified by a financial officer of Tenant or other authorized representative of Tenant reasonably acceptable to the City. The City may change the form of Monthly Certified Statement from time to time upon thirty (30) days prior written notice to Tenant.
“Monthly Resident General Manager’s Report” shall mean the report to be submitted by Tenant which shall include a summary of Subtenant sales performance, marketing and promotions initiatives and events, ACDBE participant updates and other operational matters and issues. The Monthly Resident General Manager’s Report shall be signed by the Resident General Manager.
“Operating Costs” shall mean those costs paid or incurred by Tenant in maintaining and repairing the Premises and utility and mechanical systems serving the Premises (excluding capital expenditures, as determined in accordance with generally accepted accounting principles); taxes paid by Tenant for the Premises (but not including income or franchise taxes); and costs of utility services (such as natural gas, water, sewerage and electricity) consumed in the Premises to the extent not metered and billed separately to a Subtenant Premises by a utility provider.
“Operating Equipment” shall mean any trade furniture, trade furnishings, trade equipment, signs, trade appliances and trade fixtures that are fabricated, furnished, installed and used by Tenant or its Subtenants in the Premises. Operating Equipment shall not include Tenant’s Base Building Improvements or Subtenant Fixed Improvements as described in Section 8.4.
“Person” shall mean a corporation, association, partnership, limited partnership, limited liability company, joint venture, trust organization, business, individual or government or any governmental agency or political subdivision thereof.
“Plans and Specifications” shall mean those plans and specifications of Tenant or its Subtenants as described in the Construction Documents and prepared with regard to any Improvements during the Term of this Lease.
15
“Premises” shall mean, prior to the redevelopment of the Concession Program, collectively, the Transition Premises, the Storage Premises, and the Office Premises as shown on Exhibit A; during the Redevelopment of the Concession Program, collectively the Transition Premises, the New Concession Premises, the Storage Premises and the Office Premises as shown on Exhibit A; after the Redevelopment of the Concession Program, collectively, the New Concession Premises, the Storage Premises, the Office Premises and, if applicable, the Additional Concession Premises as shown on Exhibit A.
“Ramp Area” shall mean that portion of the apron adjacent to the Gates and associated airfield ramp areas, but not including any taxiways and runways, in which aircraft maneuver on the ground, park or are serviced between flights.
“Redevelopment” shall mean the redevelopment of the Premises as described in Section 2.1(c).
“Relocation Space” means space to which Tenant must relocate a Concession Premises or Storage Premises at the request of the Commissioner after the Effective Date pursuant to Article 2.
“Scope of Work” shall mean the Work as described in the Construction Documents related to the Improvements.
“Shell and Core” shall mean the Premises as delivered by the City on the Effective Date and those improvements to the New Concession Premises to be completed by the City as may be required in this Lease, and with respect to Additional Concession Premises or Relocation Space, as may be agreed in writing by the Commissioner.
“Street Prices” shall have the meaning set forth in Section 14.3 of this Lease.
“Subtenant” shall mean a Subtenant of Tenant as approved by the Department in accordance with Article 15 hereof.
“Subtenant Fixed Improvements” shall mean those Improvements constructed by the individual Subtenants in their respective Subtenant Premises and does not include any Subtenant Operating Equipment.
“Subtenant Premises” shall mean the total Concession Premises and Storage Premises leased to a Subtenant pursuant to a Sublease, which may be amended from time to time as additional space may be added or the Subtenant Premises may be deleted from or relocated during the term of the Sublease in accordance with the provisions of this Lease. Subtenant Premises shall be used for operation of the Concession Program and the storage of merchandise, and equipment needed for a Subtenant’s business operation and for no other purpose unless otherwise approved in writing by the Commissioner.
“TDCPM”, shall have the meaning set forth in Section 8.16 of this Lease.
16
“Terminal” shall mean Terminal 5 of the Airport.
“Use Agreements” shall mean collectively those certain airport use and facility lease agreements between the City and the airlines operating out of the domestic terminals of the Airport regarding the use and operation of the Airport, as amended or executed from time to time.
“Work” shall mean everything necessary for the design, engineering, construction and installation of the Improvements; when referring to restoration of Improvements after Major Damage, it means everything necessary for the replacement, repair, rebuilding, or restoration of the Improvements.
1.3 |
Attachments. The following documents attached hereto as Exhibits and are hereby made a part hereof: |
Exhibit A |
Premises, Transition Premises, Office Premises, Storage Premises and New Concession Premises |
Exhibit B |
List of Initial Subtenants and Respective Concession Operations |
Exhibit C |
Special Conditions Regarding ACDBE Participation and ACDBE Compliance Plan |
Exhibit D |
Special Conditions Regarding MBE/WBE Participation and MBE/WBE Compliance Plan |
Exhibit E |
Design and Construction Provisions |
Exhibit F |
Redevelopment, Construction Phasing and Opening Schedule |
Exhibit G |
Form of Letter of Credit/Payment and Performance Bond |
Exhibit H |
Economic Disclosure Statements and Affidavits |
Exhibit I |
Prevailing Wage Rates |
Exhibit J |
Airport Concessions Handbook |
Exhibit K |
Form of Annual Certified Statement |
Exhibit L |
Form of Monthly Certified Statement |
Exhibit M |
Service and Performance Operating Standards |
Exhibit N |
Utilities Matrix |
Exhibit O |
Sustainable Airport Manual |
Exhibit P |
Tenant and Subtenant Insurance Requirements |
17
ARTICLE 2
CONCESSION PREMISES, OFFICE PREMISES AND STORAGE PREMISES;
RIGHTS OF TENANT AND SUBTENANTS
2.1Premises.
(a)Grant of Premises. Subject to the terms and conditions contained herein, the City hereby leases to Tenant and Tenant hereby accepts from the City, the Premises for the Term and at the Rent herein described and hereby grants to Tenant the right to act as the exclusive developer and manager of the Terminal’s Concession Program solely in the Premises pursuant to the terms and provisions of this Lease and for the Permitted Uses as described below.
(i)The Premises shall include the area from above the floor slab on which the space is located, to beneath the slab of the floor (or roof) above the space, and shall include the inner surfaces of the perimeter walls of the space, perimeter doors and windows but shall not include the land under or adjacent to the Terminal, the roof or any utility or telecommunications lines, antennas, mains, shafts pipes, conduits, ducts, wires or other building systems running through and not exclusively serving the Premises.
(ii)Subject to those rules and regulations promulgated by the Commissioner, Tenant and the Subtenants shall have such rights of ingress and egress to and from the Premises over the Terminal’s Common Areas and other public areas of the Airport as may be reasonably necessary for Tenant, the Subtenants and their respective employees, agents, and Contractors and for each of their equipment and vehicles. Tenant and its Subtenants shall control all of their respective vehicular traffic on the Airport, take all precautions as may be reasonably necessary to promote the safety of passengers, customers, business visitors and other persons, and employ such means as may be reasonably necessary to direct movements of any such vehicular traffic.
(iii)Tenant agrees that the City retains the right to place in, through or over the Premises utility lines, mains, telecommunication lines, antennas, shafts, pipes, ducts, conduits, wires, and the like for the use and benefit of the City and other tenants and occupants of the Airport and to replace and maintain, repair and relocate such lines, antennas, mains, shafts, pipes, ducts, conduits, wires and the like, in, over and upon the Premises. When exercising its rights under this Section, the City agrees to use reasonable efforts not to materially interfere with Tenant’s or its Subtenants’ use of the Premises. Any such lines, antennas, mains, pipes, shafts, ducts, conduits, wires and the like in, through, or over the Premises shall not be deemed to be a part of the Premises.
(b)City’s Delivery of the Premises/Shell and Core. The City is responsible for providing the Premises in its current AS-IS WHERE-IS condition. The City makes no warranty, either express or implied, as to the design or condition of the Premises, including the Shell and Core, or the suitability of the Premises, including the Shell and Core, for the Tenant’s purposes or needs. The City is not responsible for any patent or latent defect, and Tenant must not, under any circumstances, withhold any amounts payable to the City under this Lease on account of any defect in the Premises, including the Shell and Core. If feasible, the City will assign to Tenant any warranties obtained from the City’s contractor for the Shell and Core and/or the right to enforce City’s rights under its contract for the Shell and Core.
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Redevelopment as well as the approval of the airlines operating in the Terminal. Tenant shall provide assistance to the City in obtaining such approvals. All such approvals shall be obtained in a timely manner by the City so as not to adversely impact the Construction Phasing and Opening Schedule as set forth in Exhibit F. Should the City not obtain such approvals on a timely basis or should the City fail to obtain all necessary approvals, the Parties shall meet in good faith to mutually agree on appropriate adjustments to both the scope of work of the Redevelopment that may be reasonably necessary in order to obtain all required approvals and the Construction Phasing and Opening Schedule shall be appropriately adjusted to reflect any such delays incurred or changes in the scope.
Tenant shall be responsible for the identification of any Hazardous Materials that may be encountered during the construction for the Redevelopment and shall report any such Hazardous Materials so encountered to the Department and the City. The City, at the City’s sole cost and expense, shall be responsible for the remediation and/or removal of any such Hazardous Materials and shall also be responsible for obtaining the approval of any inspections or certifications related to any such Hazardous Materials which may be required by applicable laws in order for Tenant to perform the construction of the Base Building Improvements for the Redevelopment and for the Subtenants to perform the construction of the Subtenant Fixed Improvements for the New Concession Premises.
(d)New Concession Premises. Upon the completion of the Redevelopment by Tenant and the completion of the construction of the New Concession Premises by the Subtenants, the New Concession Premises, the Storage Premises and the Office Premises shall be re-measured pursuant to BOMA standards and the approximate square footage set forth in Article 1 hereof shall be adjusted accordingly to reflect the actual
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2.2[**]
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2.3 |
Relocation Space. The Commissioner may at any time during the Term require Tenant to vacate or to cause its Subtenants to vacate any portion of the Premises and relocate a Subtenant’s operations in those affected portions of the Premises to another location within the Terminal (“Relocation Space”) when, in the sole discretion of the Commissioner, the portion of the Premises to be relocated is necessary for other Airport or airline operational purposes or with respect to Airport security requirements. In such an event: |
(i) |
The Commissioner will notify Tenant in writing within a reasonable period of time prior to the date that the affected portion of the Premises need to be vacated and the affected Subtenants’ operations moved to the Relocation Space. Such notice will be not less than one hundred twenty (120) days in advance of the proposed relocation. To the extent practicable, the City will endeavor not to require Tenant or its applicable Subtenant to move from the affected Concession Premises being vacated before the City completes the construction and Improvements to the Relocation Space and the Relocation Space is ready to be open for business to the public, but the portion of the Premises being vacated may be needed for other Airport operational purposes prior to the completion of Improvements in the Relocation Space. |
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(ii) |
The Department shall use its best efforts to provide Relocation Space which is a comparable location in terms of size, exposure to Actual Enplaned Passengers, and the ability to generate the same level of Subtenant Gross Receipts as existed in the portion of the Concession Premises to be vacated. If the affected Premises are Concession Premises and the Relocation Space is not acceptable in Tenant’s (or its applicable Subtenant’s) reasonable good faith business judgment, Tenant may reject the Relocation Space by notifying the Commissioner in writing no later than thirty (30) days after Tenant receives the Commissioner’s notice. If Tenant (or any of its affected Subtenants) reject the Relocation Space, then Tenant shall terminate the Sublease for the affected portion of the Premises on the date for the relocation set forth in the Commissioner’s notice. If Tenant (or its applicable Subtenant) rejects the Relocation Space, Tenant shall be issued a credit, equal to the unamortized portion of Tenant’s Certified Construction Costs, and if applicable, its Subtenant’s, Certified Construction Costs, as determined under Article 8, and as approved by the Commissioner, for the portion of the Premises being vacated, against Rent due and owing to the City from Tenant until the full amount of the credit has been applied against Rent. Such Certified Construction Costs shall not include costs for Tenant’s or its Subtenant’s Operating Equipment or other personal property or any portion of the Improvements not specifically designed due to unique characteristics for the vacated Premises that can reasonably be moved and used by Tenant or its Subtenant in the Relocation Space or in other locations as determined in Tenant’s or its Subtenant’s sole but reasonable discretion. |
(iii)Except when Tenant (or its applicable Subtenant) rejects Relocation Space and is reimbursed by the City for the unamortized portion of Tenant’s Certified Construction Costs and if applicable, its Subtenant’s Certified Construction Costs pursuant to (ii) above, the City is responsible, at its sole cost and expense, for all costs incurred in the relocation or replication of the Improvements in the portion of the Premises being vacated, including the cost of moving Tenant’s or its Subtenants’ Operating Equipment, other items of personal property and merchandise, inventory and the cost of constructing replacement Improvements in the Relocation Space comparable to the Improvements in the portion of the Premises being vacated as of the date of relocation, to the extent comparable Improvements do not already exist in the Relocation Space. In the case of a relocation, Tenant or its Subtenants must promptly vacate the portion of the Premises required to be vacated and as to which this Lease is being terminated on the date specified in the Commissioner’s notice and return that portion of the Premises in as good condition as existed as of the date that the City gave Tenant possession of the Premises being vacated normal wear and tear and damage by casualty excepted, unless the Commissioner otherwise agrees in writing. Because the City is replacing Improvements in kind, Tenant is not entitled to any credit for unamortized Improvement Costs for the portion of the Premises being vacated, and the unamortized Improvement Costs for the portion of the Premises being vacated will deemed to be the unamortized Improvement Costs for the Relocation Space and continue to be amortized on the same schedule as the portion of Premises being vacated.
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(iv) |
In the event the Relocation Space is rejected by Tenant or its applicable Subtenant and the Lease is terminated as to the affected portion of the Concession Premises pursuant to (ii) above, then the Minimum Annual Guarantee as of such date will be automatically and equitably adjusted retroactive to the date in which the Concession Premises was required to be vacated in accordance with the following formula: the then current Minimum Annual Guarantee shall be multiplied by a fraction, the numerator of which is the total Gross Receipts generated from the remaining portion of the Concession Premises during the twelve (12) month period immediately following the surrender of the affected portion of Concession Premises and the denominator of which is the total Gross Receipts generated from the Concession Premises during the twelve (12) month period immediately prior to the surrender of the affected portion of the Concession Premises. Any overpayments of the Minimum Annual Guarantee made by Tenant until such determination of the equitable adjustment shall be made shall be credited against Rent due and owing to the City from Tenant until the full amount of the credit has been applied against Rent. |
2.4 |
Permitted Uses. The Premises shall be used only for the purposes of redeveloping, marketing, managing, and subleasing the Premises for the operation of Concession Program in the Terminal which shall include, but not be limited to, the following types of concessions: specialty retail, food & beverage, newsstand, news & gifts, duty free and miscellaneous services (“Permitted Uses”) in accordance with the provisions specified herein, and for no other purpose whatsoever. |
2.5 |
Prohibited Uses. Tenant shall not use the Premises for any use not specifically granted herein without the prior written approval of the Commissioner, which approval may be granted or withheld by the Commissioner, in its sole and absolute discretion. Prohibited uses expressly agreed to include the following: (a) foreign currency exchange services; (b) banking and other financial services; (c) automated teller machines; (d) display of revenue generating advertising by Tenant or its Subtenants in a manner inconsistent with the City’s advertising program then in effect; (e) luggage cart services; (f) luggage services; (g) public telephone and communication or coin-operated telephone services; (h) WI-FI internet services/access; (i) parking; G) ground transportation services; (k) catering (both in-flight and for airline clubs); (I) in-flight duty-free retailing; and (m) coin operated vending machines (collectively, the “Prohibited Uses”). With respect to advertising, the foregoing shall not prohibit Tenant from marketing and promoting the Concession Program within the Terminal (including, but not limited to concession directories, maps and brochures) as well as the Subtenants advertising within the Subtenant Premises. |
2.6Appurtenant Rights. Tenant, its Subtenants and their respective employees, agents and contractors shall have the right as appurtenant to the Premises, subject, however, to Tenant’s compliance with the terms and conditions of this Lease, including, without limitation, Tenant’s maintenance and repair obligations set forth in Section 8.3, Tenant’s insurance and indemnification obligations set forth in Article 11, the limitations on Tenant’s use set forth in Article 6, and Tenant’s compliance with all applicable non-discriminatory rules and regulations established from time to time by the City including those set forth herein, to the non-exclusive use, in common with others, of the Common Areas (those which are not a part of the Premises), subject to the exclusive control and management thereof at all times by the City, for the purposes of moving to and from the Premises to engage in the uses of the Premises permitted in this Lease, provided that the City reserves the right to make any changes which it deems appropriate to said Common Areas, including without limitation, relocation or elimination of all or any part of said Common Areas in the City’s sole discretion, to assure public safety and convenience or to assure efficient operation of the Terminal and/or the Airport. The City shall use reasonable efforts so as to not prevent access and/or substantially impair access to the Premises in connection with any such changes to the Common Areas.
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2.7 |
Rights Regarding Personal Property in the Premises. Tenant and its Subtenants shall retain title and ownership to all of Tenant’s and its Subtenants’ personal property in the Premises except in the event of deemed abandonment. The City owns all other property at the Premises, including the Shell and Core and Improvements and all base building utility facilities and associated infrastructure but Tenant and its Subtenants shall have a leasehold interest in all Improvements so constructed by Tenant and its Subtenants during the Term of this Lease. |
ARTICLE 3
SUBLEASING TO SUBTENANTS
3.1. |
Nature of Subtenants. It is the intention of the parties hereto that Tenant shall enter into Subleases with approved Subtenants in accordance with the terms of this Lease. Subtenants shall be capable of running a first-class operation and servicing international customers, and shall include a mix of nationally and regionally recognized and local entities. |
3.2 |
Selection of Initial Operators. The City hereby consents to Tenant’s proposed list of the Subtenants set forth in Exhibit B as the “Initial Operators” of those Concession Program operations listed therein, identified as to type and location. Any replacement of a Subtenant or change in the character of a Subtenant’s business is subject to the prior approval of the Commissioner, such approval to be determined on a commercially reasonable basis. The City also consents to the existing operators and any Initial Operators who may operate concessions in the Transition Premises during the Redevelopment. |
3.3 |
Selection of Other Subtenants. With the exception of the Initial Operators and existing operators, all Subtenants shall be selected by Tenant from a list of qualified Subtenants developed by Tenant from time to time. Selection of such qualified Subtenants shall be based on a merit-based qualification system involving a fair competitive evaluation process managed by Tenant (such process shall not be required to be a public request for proposal process) or pursuant to terms otherwise approved in the Commissioner’s sole but reasonable discretion. It is understood and agreed that names of prospective Subtenants may be added to or deleted from said list from time to time and that the inclusion of any given party on said list shall not provide any assurance that said party will in fact be selected as a Subtenant. The Commissioner’s consent to any given Subtenants shall not exempt said Subtenants from the foregoing qualification process with respect to any additional space other than the space then subleased to said Subtenants (other than expansion space added pursuant to an expansion option contained in said Subtenant’s Sublease), or with respect to any extension or renewal of the term of said Subtenant’s Sublease beyond the initial term of said Subtenant’s original term and any renewal periods contained therein. The selection process, the proposed type of business and all Subtenants are subject to prior written approval by the Commissioner, which approval shall not be unreasonably withheld, conditioned or delayed taking into consideration both the goals of the City and the goals of Tenant, and the purpose of this Lease. Tenant shall obtain and provide copies of any required Economic Disclosure Statements from prospective Subtenants as part of the Commissioner’s approval process. |
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3.4 |
Standard Sublease Agreement. |
(a)Tenant shall prepare a standard sublease agreement (“Sublease”) in accordance with the terms and conditions of this Lease. The Sublease shall not prejudice or conflict with any of the City’s rights under this Lease, or applicable laws, rules or regulations. To the extent that Tenant is required under this Lease to cause any Concession Program operations to be operated in a certain manner or wherever, in order to give effect to Tenant’s obligations hereunder, it shall be necessary or desirable to impose corresponding obligations directly upon the Subtenants, said obligations shall be incorporated in the Sublease as may be determined from time to time in the sole discretion of Tenant.
(b)The Sublease shall provide that each Sublease is and shall be subject and subordinate to this Lease and in the event of any conflicts between the terms and provisions of any Sublease and this Lease, this Lease shall be controlling. In the event any approved Sublease shall extend (either by virtue of its term or by virtue of holding over with City consent) beyond the expiration or earlier termination of this Lease, Tenant shall all assign of its right, title and interest in and to all of the Subleases to the City or such third party designated by the Commissioner as of the effective date of any such expiration or termination of this Lease and the City or such third party designated by the Commissioner may assume such right, title and interest in and to all of such Subleases as of the date thereof pursuant to a mutually satisfactory assignment and assumption agreement between the Parties. Further, if this Lease is terminated due to a default by Tenant under this Lease, prior to expiration of the term of the Subleases (the date of such termination is referred to herein as the “Termination Date”), then Tenant shall be required to assign all of the Subleases to the City or any other third party selected by the City, to assume the rights and obligations of Tenant under such Subleases. In such event, the rights and obligations of Tenant under each such Sublease shall be deemed to have been assigned and transferred to the City or such other third party designated by the Commissioner as of such Termination Date and said Subtenant shall be deemed to have made full and complete attornment to the City or such other third party for the balance of the term of such Sublease without any action or confirmation from Subtenants and, further, in such event, upon request from the Commissioner, said Subtenants shall enter into a new Sublease with the City or such other third party on the same terms and conditions as the Sublease that has been transferred.
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(c)The Sublease shall also provide that, if the City assumes the rights and obligations of Tenant under any Sublease, the City shall have the right at any time, by providing written notice thereof to the Subtenants, to assign its rights, title and interest under such Sublease to a third party selected by the City, and from and after the effective date of such assignment, the City shall no longer have any obligation or liability under the Sublease.
(d)The Sublease shall further provide that, in no event shall the City or such other third party designated by the Commissioner to assume Tenant’s rights and obligations under the Sublease Agreement be liable for (i) any prior acts or defaults of Tenant under the Sublease, (ii) completion of any Improvements relating to said Subtenant’s Premises, or (iii) return of any security deposits of said Subtenant except to the extent said sums (specified as such with specific reference to the Sublease pursuant to which it was deposited) have been transferred to the City or such other third party.
(e)Tenant agrees that it shall not require any Subtenants to pay the monthly rental or license payments under its Sublease more than two (2) months in advance of its respective due date. The Sublease shall provide for the obligation of the Subtenants to pay the greater of: (A) a minimum annual guarantee fee (each such fee being referred to herein as a “Subtenant’s Guarantee Fee”), or (B) a Percentage Rent (“Subtenant Percentage Rent”) based on the Gross Receipts of the applicable Subtenant Premises, and shall contain restrictions similar to the restrictions on Transfers set forth in this Lease or as provided for otherwise in an approved Sublease. The Sublease may provide for the pass-through of Operating Costs to Subtenants and Subtenants’ contributions to the capital improvements costs to be incurred by Tenant for the Redevelopment (also known as “key money” contributions in the industry), if any, which shall be retained by Tenant and not considered to be Rent hereunder. Those additional charges which Tenant shall be entitled to include in Operating Costs shall include:
(i)Marketing Fee. A Marketing Fee in the amount of one-half of one percent (0.5%) of each Subtenant’s monthly Gross Receipts (the “Marketing Fee”) for the purposes of advertising, publicity, promotional materials, events, directories, customer service training and other activities appropriate for marketing the Concession Program at the Terminal as determined by Tenant from time to time (the “Marketing Program”) shall be collected by Tenant from each Subtenant and shall be retained by Tenant for such use. Tenant shall prepare and submit an annual budget and plan for the Marketing Program which shall be subject to the prior written consent of the City, such consent not to be unreasonably, withheld, conditioned or delayed. Tenant shall have the right to negotiate specific contributions for any Subtenant as long as the amount contributed does not exceed one-half of one percent (0.5%) of monthly Gross Receipts.
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(ii)CAM Fund. A pro rata share of Common Area maintenance costs and real estate taxes associated with any common areas of the Premises not sublet to Subtenants as well as any centralized charges for services rendered by third party vendors which Tenant may determine to have provided for all Subtenants for items such as storefront cleaning, trash removal, pest control, grease trap cleaning and other miscellaneous services (the “CAM Fund”). To the extent there is a shortfall in the CAM Fund following any annual reconciliations of the each Subtenants share of the total costs and expenses incurred, such shortfall shall be Tenant’s sole responsibility. Tenant may require the Subtenants in the food court to perform the cleaning and maintenance thereof in lieu of charging such Subtenants a pro rata share of such costs for the CAM Fund.
(iii)Utilities. Subtenants shall be required to pay for the installation of separate meters or check meters for the Subtenant Premises and for the consumption of all utilities used in connection with the operations of the Subtenant in the Subtenant Premises.
(iv)Impositions. A pro rata share of Impositions that may be levied or assessed from time to time with respect to the Premises, Tenant’s or the Subtenants leasehold interests in the Premises and with respect to the conduct of any operations under this Lease.
(v)City Charges. A pro rata share of any other sums charged by the City to Tenant pursuant to this Lease such as costs for security badges and any logistical support or distribution fees, for example.
Tenant shall negotiate the terms of the respective Subleases in such a manner that the obligations to pay for all pass-through items shall be apportioned on an equitable basis among similarly-situated Subtenants, to the extent that such items are not metered and billed separately to said Subtenants: Tenant shall not charge a separate management fee to the Subtenants separate from the Subtenant rent.
(f)The Sublease shall also grant to the City the direct right to enforce the provisions of the Sublease in the event of an emergency or if the same involves life safety or Airport security issues at the Commissioner’s election in the place and stead of Tenant.
(g)The Sublease shall also provide that Tenant and its Subtenants will work cooperatively in attempting to retain existing concession employees working at the Transition Premises on the Earliest Date of Beneficial Occupancy. This will be accomplished by giving the existing concession employees working at the Transition Premises on the Earliest Date of Beneficial Occupancy preferential interviews for jobs that will be created and/or retained at the New Concession Premises.
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3.5 |
Documentation of Agreement with Subtenants. All agreements with Subtenants shall be made in the form of the Sublease approved by the Commissioner. Any material modifications to the form of the Sublease negotiated with a particular Subtenant shall be subject to the Commissioner’s prior approval, such approval not to be unreasonably withheld, conditioned or delayed, prior to Tenant entering into a such a Sublease with a Subtenant. The Commissioner’s approval of all of the proposed terms and conditions of the Sublease, including without limitation, the proposed rent, term, the nature of the proposed Subtenant’s business and the compatibility of the proposed use with the other Concession Program operations at the Terminal and with the objective of achieving an appropriate mix of Concession Program operations, shall be granted, withheld or conditioned by the Commissioner on a commercially reasonable basis. The amortization period applicable to any given Sublease shall be equal to either: (i) the term of the Sublease, or (ii) the useful life of the asset, whichever period is shorter. Tenant may make immaterial modifications to the Sublease without the approval of the Commissioner but shall identify in writing all such modifications to the Commissioner when the Sublease is submitted for approval. In order to facilitate the Commissioner’s review process, Tenant shall furnish the Commissioner with drafts of all proposed Subleases, marked to identify all variations, if any, from the standard form of Sublease and the Commissioner shall indicate his or her approval or disapproval to Tenant within thirty (30) days. Should the Commissioner fail to approve or disapprove the Sublease within such thirty (30) day period, then the Sublease shall be deemed approved and Tenant shall be permitted to enter into such Sublease. Tenant shall furnish the Commissioner with a copy of all such executed Subleases, and no such Sublease shall be amended to modify the Subtenant’s rent, the permitted use, Subtenant’s responsibilities and operating hours, ACDBE participation or any other material provisions of the Sublease without the prior written consent of the Commissioner, determined in his or her sole and absolute discretion. Other proposed non-material amendments shall also be subject to the prior written consent of the Commissioner, such approval not to be unreasonably withheld, conditioned or delayed. |
3.6 |
Defaults Under Subleases. Tenant shall promptly notify the Commissioner of any default by any Subtenant involving the failure of such Subtenant to pay any sums when due under its Sublease or any other material events which, with the passage of time or the giving of notice, or both, would constitute a default on the part of any Subtenant under its Sublease, including but not limited to failure to comply with the ACDBE Special Conditions. Tenant shall provide the Commissioner with copies of all notices of default delivered to any Subtenant promptly following the delivery of any such notice to Subtenant. Tenant shall utilize commercially reasonable and diligent efforts to enforce Subtenant’s obligations under said Sublease. |
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3.7Providing Continuous Concession Program Operations.
(a)In the event a Subtenant ceases operating for any reason, Tenant shall use commercially reasonable efforts to provide for interim operation of the affected Concession Premises such that said Concession Premises are re-opened as soon as reasonably possible under the circumstances (taking into consideration the level of Actual Enplaned Passengers in the Terminal at the time of any such cessation), but in any event within sixty (60) days unless Tenant reasonably demonstrates to the Commissioner’s satisfaction that the level of Actual Enplaned Passengers does not justify operations in that location. Tenant may, but shall in no event be obligated to, conduct such concession operations on an interim basis not to exceed six (6) months, during which time Tenant shall act diligently to procure a suitable substitute Subtenant. Alternatively, Tenant is entitled to have a Subtenant who already is operating at the Premises or any other suitable third party to operate such Concession Premises on an interim basis not to exceed one (1) year, during which time Tenant shall act diligently to procure a suitable substitute permanent Subtenant (which may include the Subtenant or other suitable third party conducting the interim operations). All such interim operations of such Concession Premises shall be subject and subordinate to the terms and provisions of this Lease and shall be in writing, the form and content of which is subject to the prior approval of the Commissioner, such approval not to be unreasonably withheld.
(b)In the event a Subtenant’s Premises are operated on an interim basis, the permanent replacement Subtenant shall be selected in accordance with this Lease. The occurrence of a default by any Subtenant under its Sublease, or the termination by a Subtenant of its concession operations, shall not release Tenant from any of its responsibilities hereunder, including, without limitation, those regarding compensation to the City and using good faith efforts to maintain ACDBE compliance.
(c)In the event: (a) Tenant fails use commercially reasonable efforts to enforce Subtenants’ obligations to continuously provide concession operations pursuant to the Sublease, or (b) the interim agreements described in this paragraph last for a period in excess of one (1) year without the consent of the Commissioner, the parties have agreed that if any portion of the Concession Premises is not being thereafter operated during the term of this Lease in accordance with this Lease, then, Tenant shall pay the City, as liquidated damages, and not as a penalty, the amount of $300.00 per day. Such liquidated damage payment shall continue from the date concession operations cease until the earlier of (i) the date concession operations resume, or (ii) the date of termination of this Lease. Said liquidated damages shall be paid monthly in arrears and shall be deemed Additional Rent.
(d)Notwithstanding anything to the contrary herein contained, in the case of the cessation of concession operations by any Subtenant for any reason during the final three (3) years of the Term, Tenant’s failure to procure a suitable permanent Subtenant in accordance with this Section shall not constitute a breach of Tenant’s obligations under this Lease provided Tenant shall have made, and shall continue to make, a commercially reasonable and diligent effort to procure a suitable Subtenant in accordance with this Lease and shall continue to cause concession operations to be conducted in the Concession Premises in question.
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ARTICLE 4
TERM
4.1 |
Term. |
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terminated earlier in accordance with its terms. The Term shall not be extended beyond the expiration or earlier termination of this Lease due to the inclusion of any Additional Concession Premises which may be added from time to time during the Term. Once the Latest Date of Beneficial Occupancy is determined, the City and Tenant shall enter into a letter agreement confirming the Latest Date of Beneficial Occupancy and the expiration date of this Lease.
(b)Option to Extend. Upon mutual agreement of the Commissioner and Tenant, this Lease may be extended for one (1) additional period of five (5) years (“Extended Term”), on the same terms and conditions as set forth in this Lease. Should either Party not be in agreement to so extend the Term, such Party must give notice of its intent no later than twenty-four (24) months prior to the Expiration Date. If this Lease is not so extended and the City has not executed a new management agreement with a new manager before the Expiration Date, Tenant and the City shall negotiate in good faith to have Tenant continue to provide concession management services on a mutually agreeable fee basis until such new manager is in place.
(c)Automatic Extensions. Tenant shall automatically be entitled to the Extended Term as determined in Tenant’s sole discretion upon the occurrence of any of the following events. In such event, Tenant shall provide written notice of exercise of the Extended Term to the Commissioner within a reasonable period of time following the occurrence of any of the such events:
(i) |
Reduction of New Concession Premises - Should the New Concession Premises be reduced by the Department to be less than 16,000 square feet at any time during the Term; |
(ii) |
Reduction in Actual Enplaned Passengers - Following the MAG Effective Date, if the Actual Enplaned Passengers in a Lease Year are five percent (5%) less than the Minimum Enplanement Threshold for a period of three (3) consecutive years at any time during the Term; or |
(iii) |
Restriction/Prohibition of Key Duty Free Products - The sale of either tobacco, liquor, perfumes and/or cosmetics (the “Key Duty Free Products”) on a duty free basis in the United States is materially impacted due to legislative requirements, changes in law, rules or regulations regarding the sale of any category of such Key Duty Free Products on a duty free basis, or to the extent the sale of any category of such Key Duty Free Products on a duty free basis in the Terminal is either prohibited or restricted at any time during the Term for a period in excess of twelve (12) consecutive months. |
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All of the terms and provisions of this Lease shall be applicable during the Extended Term and unless the context otherwise specifically requires, all references in this Lease to “Term” shall also include the Extended Term.
4.2 |
Termination. (a) Unless earlier terminated in accordance with its terms, this Lease shall terminate on the Expiration Date specified in Section 1.1, without the necessity of notice, and Tenant hereby waives all rights to any notice to terminate, vacate or quit the Premises except as may otherwise be expressly provided for in this Lease. Tenant hereby waives any and all rights of redemption, granted by or under any present or future Law (as hereinafter defined) in the event it is lawfully evicted or dispossessed for any lawful cause, or in the event the City obtains possession of the Premises in any other lawful manner. Such termination of the Lease, as provided herein, and the removal, restoration and surrender obligations of Tenant shall in no way give rise to any claims for or rights to payment to Tenant by the City, including without limitation, (i) any and all awards in the nature of land damages under applicable Laws, and (ii) any and all rights under the terms of this Lease, and (iii) incidental, consequential or severance damages on account of Tenant’s occupancy and/or abandonment of the Premises; and (iv) any reimbursement to Tenant or its Subtenants for any Improvements. |
(b)(b) Notwithstanding anything to the contrary set forth in this Lease, following the tenth (10th) anniversary of the Latest Date of Beneficial Occupancy, the Commissioner shall have a one-time option, to terminate this Lease without cause for any reason, in the Commissioner’s sole discretion, upon one hundred eighty (180) days prior written notice to Tenant (“City’s Termination Notice”). For the Commissioner to exercise this one-time option to terminate this Lease, the Commissioner must give the City’s Termination Notice to Tenant no later than ninety (90) days following the tenth (10th) anniversary of the Latest Date of Beneficial Occupancy. Upon such notice, Tenant shall fulfill its surrender obligations in accordance with the applicable provisions of this Lease. If the City elects to terminate this Lease without cause as provided herein, this Lease shall automatically terminate upon the expiration of one hundred eighty (180) days after the date of the City’s Termination Notice (“Effective Termination Date”). Upon the Effective Termination Date, Tenant shall assign to the City, and the City shall assume from Tenant, all of the Subleases then in effect with respect to the concession program in the Terminal. If the City shall not elect to exercise or fail to timely exercise its option to terminate this Lease as provided in this Section 4.2(b) above, then this Lease shall remain in full force and effect in accordance with its terms and the City shall not have any further right of termination pursuant to this Section 4.2.
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In the event of any such early termination by the City under this Section 4.2(b), the City shall pay to Tenant, a Lease Termination Payment (which shall be defined herein to include Tenant’s Unamortized Investment and Demobilization Fee as such terms are defined below) as follows: (i) a sum equal to the unamortized balance of the Tenant Certified Construction Costs in the amount previously approved by the City in accordance with Section 8.5, depreciated using the straight-line method over the Term, commencing on either the Latest Date of Beneficial Occupancy in the case of Tenant’s initial Base Building Improvements which are completed on or before the Latest Date of Beneficial Occupancy or commencing on the date first placed into service in the case of any refurbishments made to Tenant’s Base Building Improvements subsequent to the Latest Date of Beneficial Occupancy (collectively, “Tenant’s Unamortized Investment”); and (ii) a sum equal to one hundred ten percent (110%) of the rents payable by Subtenants to Tenant under the Subleases during the tenth (10th) year following the Latest Date of Beneficial Occupancy less amount of Premises Rent required to be paid by Tenant to the City as Rent hereunder for such tenth (10th) following the Latest Date of Beneficial Occupancy (“Demobilization Fee”). The City shall remit the Lease Termination Payment to Tenant on or before the Effective Termination Date. Following the receipt of the Early Termination Payment by the City to Tenant and the assignment and assumption of the Subleases as contemplated by this Section 4.5, the City and Tenant shall thereafter be released from any and all obligations under this Lease except for any the Parties’ respective obligations which shall have accrued or which shall be arising out of events occurring prior to the Effective Termination Date or which are expressly stated to survive the expiration or earlier termination of this Lease.
4.3 |
Holding Over. |
(a)Without Commissioner Objection. Except as provided in (b), any holding over following expiration or termination shall constitute a tenancy from month-to-month on the same terms and conditions as this Lease, including payment of the Rent attributable to the portion of the Premises Tenant and its Subtenants continue to occupy. Tenant and its Subtenants must surrender and vacate any portion of the Premises no later than thirty (30) days following written notice from the Commissioner that the month-to-month tenancy is being terminated.
(b)Despite Commissioner Objection. If the Commissioner notifies Tenant in writing that holding over is not allowed, or if the Commissioner notifies Tenant that any holdover month-to-month tenancy is being terminated as to any portion of the Premises, and Tenant continues to hold over after receipt of such written notice, Tenant must thereafter pay Rent at one hundred fifty percent (150%) the annual rate of the Rent payable, on a per diem basis, during that portion of the last calendar year falling within the Term of this Lease.
(c)No occupancy of the Premises by Tenant after the expiration or earlier termination of this Lease (in its entirety or as to the portion of the Premises in question) extends the Term of this Lease with respect to the portion of the Premises, except as a holdover tenancy. Tenant and its Subtenants shall be required to vacate and surrender any portion of the Premises during the holdover tenancy in accordance with notices from the Commissioner from time to time to accommodate any of the City’s replacement tenant’s construction and commencement of operations. In the event of any unauthorized and willful occupancy after such expiration or termination, Tenant must indemnify the City against all damages arising out of the retention of occupancy, and all insurance policies and letters of credit required to be obtained and maintained by Tenant as set forth in this Lease must continue in effect.
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4.4 |
Surrender. |
(a)At the termination or expiration of this Lease as to any portion of the Premises, Tenant and its Subtenants shall promptly, peaceably, quietly and in good order quit, deliver up and return the Premises (or that portion as to which the Lease has terminated, in the case of a partial termination) in good condition and repair, ordinary wear and tear and damage by fire or other casualty excepted. Except as provided below, Tenant and its Subtenants must remove all of Tenant’s personal property from the Premises or the affected portions of the Premises within three (3) days following the date of termination or expiration of this Lease. All Improvements installed by or for Tenant and each of its Subtenants shall remain in the Premises and shall in no event shall be required to be removed by Tenant or its Subtenants. Tenant shall or shall cause its Subtenants to repair any damage to the Concession Premises caused by Tenant’s or its Subtenant’s removal of personal property, trade fixtures and other items which Tenant or its Subtenants are permitted to remove. All the removal and repair required of Tenant under this Section are at Tenant’s sole or its Subtenant’s cost and expense.
(b)If Tenant or its Subtenants fail to perform any of their obligations, then the Commissioner may cause the obligations to be performed and Tenant shall pay the cost of the performance, together with interest thereon at the Default Rate from and after the date the costs were incurred until receipt of full payment therefor. Tenant shall be permitted to pass through any such costs and expenses to applicable Subtenants as the case may be. Any property of Tenant not or its Subtenants removed by Tenant or its Subtenant’s in accordance herewith is deemed abandoned and the Commissioner may dispose of it as she sees fit, without any liability to Tenant or any other person.
(c)Any Improvements remaining in the Premises shall become property of the City, except that all of Tenant’s or its Subtenant’s trade dress, service marks, trademarks and trade names must be removed, obliterated or painted out in a commercially reasonable manner at Tenant’s or its Subtenant’s cost, within three (3) days following the expiration or termination of the Term.
4.5 |
Intentionally omitted. |
4.6 |
Termination Due to Change in Airport Operations. This Lease is subject to termination by either party on sixty (60) days written notice in the event of any action by the Federal Aviation Administration (“FAA”), the TSA or any other governmental entity or the issuance of an order by any court of competent jurisdiction which prevents or restrains the use of the Airport, the Terminal or a portion thereof for commercial aviation purposes that renders performance under this Lease by either Party impossible, and which governmental action or court order remains in force and is not stayed by way of appeal or otherwise, for a period of at least ninety (90) days, so long as the action or order is not the direct and specific result of any Event of Default of Tenant. |
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ARTICLE 5
RENT, REPORTS AND AUDITS
5.1Rent
(a)Rent. In consideration of Tenant’s use of the Premises and the right to develop sublease, market and manage the Concession Program in the Terminal and the associated rights and privileges granted in this Lease, Tenant shall pay to City as Rent for each Lease Year the following:
[**]
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[**]
(d)Additional Rent. The following items shall be considered as Additional Rent hereunder:
(i)Distribution Fee. During the Term of this Lease, the City shall have the right, but not the obligation, to establish a central receiving and distribution facility for Subtenant concession operations at the Airport. In the event such central facility is established, Tenant shall require Subtenants to pay their proportionate share of the costs of developing, operating and maintaining such facility and the costs of transporting such deliveries from the facility to one or more designated locations within the Terminal (the “Distribution Fee”). To the extent there is a shortfall in the amount collected by Tenant from the Subtenants to cover such proportionate share following any annual reconciliations of the amount of the Distribution Fee, such shortfall shall be Tenant’s sole responsibility to pay to the City.
(ii)Impositions. Tenant must timely pay, as and when due, any and all taxes, assessments, fees, and charges levied, assessed or imposed by a governmental unit upon this Lease, the Premises, Tenant’s leasehold or upon Tenant’s personal property, including but not limited to all permit fees and charges of a similar nature for Tenant’s conduct of any business or undertaking in the Premises (collectively, “Impositions”). Tenant must provide Commissioner a copy of all notices relating to leasehold taxes on the Premises within thirty (30) days after receipt and must provide the Commissioner with a receipt indicating payment of leasehold taxes on the Premises when due. Nothing in this Lease precludes Tenant from contesting the amount of an Imposition, including those taxes or charges enacted or promulgated by City; but Tenant must not contest the applicability of an Imposition in connection with the Premises. Failure of Tenant to pay any Imposition when due, except to the extent that Tenant is contesting the amount of the Imposition, will constitute an Event of Default. Tenant shall include this provision in all Subleases.
(iii)Any other amounts expressly identified as Additional Rent in this Lease.
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Tenant shall be entitled to charge a proportionate share of Additional Rent to its Subtenants in an equitable and non-discriminatory manner.
5.2 |
Time of Payments. |
(a)Commencing on the Earliest Date of Beneficial Occupancy, Tenant shall pay to the City on or before twentieth (20th) day following the expiration the preceding calendar month commencing with the second (2nd ) month following the Earliest Date of Beneficial Occupancy:
(i) |
Percentage Rent for the preceding calendar month; and |
(ii) |
the Additional Rent attributable to the preceding calendar month; |
Tenant shall also pay Impositions if and when due following the Earliest Date of Beneficial Occupancy to the appropriate governmental agencies and shall continue to pay Impositions throughout the Term of this Lease.
(b)Commencing on the MAG Effective Date, Tenant shall pay to the City:
[**]
5.3 |
No Waiver or Setoff. Payment of Rent other than Impositions by Tenant to the City shall not be considered to be a tax and shall be in addition to and exclusive of all license fees, taxes, or franchise fees which Tenant may now or in the future be obligated to pay to the City. Tenant’s obligations to pay Rent hereunder is independent of each and every other covenant and agreement contained in this Lease and Tenant shall pay all Rent without any setoff, abatement, counterclaims or deduction whatsoever except as otherwise expressly provided in this Lease. Tenant’s obligation to pay Rent shall be absolute and unconditional. Acceptance by the City of any payment or partial payment of Rent, liquidated damages or other fees or charges shall not constitute a waiver of any right on the part of the City. No such payment shall be deemed to be other than a payment on account of the earliest Rent then due, nor shall any endorsement of any check or payment be deemed an accord and satisfaction unless specifically agreed to in writing by the City, and the City may accept such check or payment without prejudicing in any way its right to recover the balance of such Rent. |
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5.4 |
Material Underpayment or Late Payment. Without waiving any other remedies available to the City, if: (i) Tenant underpaid Rent due in any calendar year by more than 5%; or (ii) Tenant failed to make any Rent payments within ten (10) days following notice of such nonpayment from the City, then, in either such event, Tenant shall pay, in addition to the amount due the City as Rent, interest on the amount of underpayment or late payment at the Default Rate. Interest on the amount underpaid accrues from the date on which the original payment was due until paid in full and shall be considered Additional Rent. The provision for the payment of interest does not constitute an authorization by the City of underpayment or late payment. |
5.5 |
Security Deposit |
(a) |
Form of Security Deposit. |
[**]
Occupancy, this Letter of Credit shall be amended to reflect an amount equal to three (3) months of the first Lease Year’s Minimum Annual Guarantee. The Letter of Credit and any replacements or renewals of it must be issues with an expiry date of at least one (1) year after the respective dates of issuance or renewal and must be maintained by Tenant, through and including the date that is ninety (90) days after the expiration of the Term. The Letter of Credit must be in the form set forth in Exhibit G or as otherwise approved by the City’s Corporation Counsel.
(ii) |
In lieu of the Letter of Credit, Tenant may provide cash or a cashier’s check in the same amount for immediate deposit in the City’s accounts. The Letter of Credit, cash or cashier’s check, as applicable, is referred to in this Lease as the “Security.” The Security secures the faithful performance by Tenant of all of Tenant’s obligations under this Lease. The Commissioner is entitled to draw on any such Letter of Credit unless proof of renewal of the Letter of Credit or a replacement Letter of Credit in form and substance satisfactory to the Corporation Counsel has been furnished to the Corporation Counsel at least thirty (30) days before its expiration date. The City will hold the proceeds as a cash Security to secure the full and faithful performance of Tenant’s obligations under this Lease. The Commissioner is not obligated to pay or credit Tenant with interest on any Security. |
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(iii) |
The Commissioner also is entitled to draw on the Letter of Credit in whole or in part upon the occurrence of an Event of Default, in which event the Commissioner is entitled to apply all or any part of the proceeds of it or any cash or other Security deposited by Tenant and held by the City for the payment of any obligation of Tenant arising before or after the Event of Default. |
(iv) |
The Letter of Credit must provide that the Commissioner may draw upon the Letter of Credit in whole or in part upon the delivery by the Commissioner to the issuer of the Letter of Credit of a demand for payment, purportedly signed by the Commissioner, together with a written statement that the Commissioner is entitled to draw upon the Letter of Credit under the terms of this Lease. If amounts are drawn upon the Letter of Credit or amounts of a cash Security are applied by the Commissioner in accordance with the terms of this Lease, Tenant must reinstate the Letter of Credit or cash Security to its full amount required in this Lease within ten (10) days following receipt of written notification by the Commissioner of the City’s draw upon the Letter of Credit or use of the cash Security. The rights reserved to the Commissioner or the City under the Letter of Credit or any cash Security are in addition to any rights they may have under this Lease or under law. |
(b)Qualified Issuers. The Letter of Credit called for in this Lease must be issued by companies or financial institutions having a rating of “A” or better as determined by standard and Poor’s or by Moody’s Investors Service, Inc., or a net worth of at least [**] unless otherwise approved in writing by the Commissioner. If any draw requires personal appearance by a City representative, such shall occur at a location in Chicago or, if the issuer does not have an office in Chicago, the City shall be entitled to draw on the Letter of Credit for any travel expenses incurred by the City.
(c)Right to Require Replacement of Letter of Credit. If the financial condition of the institution issuing the Letter of Credit materially and adversely changes, the Commissioner may, at any time, require that the Letter of Credit be replaced with a Letter of Credit from another institution and in accordance with the requirements set forth in this Section.
(d)No Excuse from Performance. None of the provisions contained in this Lease nor in the Letter of Credit required under this Lease excuse Tenant from faithfully performing in accordance with the terms and conditions of this Lease or limit the liability of Tenant under this Lease for any and all damages in excess of the amounts of the Letter of Credit.
(e)Non-Waiver. Notwithstanding anything to the contrary contained in this Lease, the failure of the Commissioner to draw upon the Letter of Credit required under this Lease or to require Tenant to replace the Letter of Credit at any time or times when the Commissioner has the right to do so under this Lease does not waive or modify the Commissioner’s rights to draw upon the Letter of Credit and to require Tenant to maintain or, as the case may be, replace the Letter of Credit, all as provided in this Article 5.
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5.6 |
Reports. |
(a)Monthly. Tenant must furnish to the Commissioner on or before the twentieth (20th) day of each calendar month falling wholly or in part within the Term of this Lease a complete statement, certified by a authorized representative of Tenant, showing in all reasonable detail, the amount of Gross Receipts derived from each Subtenant’s Concession Premises and by category of concession during the preceding month and the Minimum Annual Guarantee, Percentage Rent and Additional Concession Percentage Rent due from Tenant for the preceding calendar month (the “Monthly Certified Statement”).
(b)Annually.
(i)Tenant also must furnish to Commissioner no later than one hundred twenty (120) days following the end of each Lease Year and within one hundred twenty (120) days after the expiration or termination of this Lease, a complete statement of the amount of Premises Rent payable by Tenant for such Lease Year certified by an independent certified public accountant engaged by Tenant, showing in all reasonable detail the amount of the Minimum Annual Guarantee, Percentage Rent and Additional Concession Percentage Rent due from Tenant for the preceding Lease Year (the “Annual Certified Statement”). The Commissioner may, from time to time, reasonably require upon not less than thirty (30) days prior written notice to Tenant, copies of all Subtenant returns and other information filed with respect to Illinois sales and use taxes as well as such copies of the respective annual certified statements received from Subtenants, and other reasonable financial and statistical reports as requested.
(ii)Tenant’s Annual Certified Statement must include a breakdown of Subtenant Gross Receipts generated by the Concession Program for each Subtenant by location. Tenant’s Annual Certified Statement shall include a standard non-qualified opinion of an independent certified public accountant as to the accuracy of the Annual Certified Statement.
(iii)Tenant shall require each Subtenant’s annual certified statement to be opined by an independent certified public accountant which shall include the following language, or language of similar purport:
“We, a firm of independent certified public accountants, have examined the accompanying financial statement of [Subtenant] for the year ended relating to its operations at the Terminal pursuant to a Sublease dated , 20 . Our examination was made in accordance with generally accepted accounting principles and, accordingly and, includes such tests of the accounting records and such other procedures as we considered necessary in the circumstances.
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In our opinion, the accompanying financial statement presents accurately the amount of [Subtenant] Gross Receipts and the total Rentals due as defined in the Sublease for the year ended .”
(c)All such reports and statements described in this Article 5 shall be prepared on a form approved by the Commissioner, such approval not to be unreasonably withheld. If Tenant fails to timely furnish to the Commissioner any Monthly Certified Statement or Annual Certified Statement required under this Lease or if the independent certified public accountant’s opinion is qualified or conditioned in any material manner, the Commissioner has the right (but is not obligated) without notice, to conduct an audit of Tenant’s and, as needed, Subtenants’ books and records and to prepare the statements at Tenant’s sole cost and expense. Tenant must also provide the Commissioner with such other reasonable financial or statistical reports and information concerning the Concession Program or any part thereof, in the form as may be reasonably required from time to time by the Commissioner.
5.7 |
Adjustments Based Upon Annual Certified Statements. In the event that the Annual Certified Statement required under Article 5 indicates an underpayment for any Lease Year or portion thereof of the Term, Tenant shall pay the difference between the amounts paid under Article 5 and the amount due based on the Annual Certified Statement and if such underpayment is in excess of two percent (2%), Tenant shall also pay interest thereon at the Default Rate from the date or dates when such amounts were originally due. Such payment shall be made no later than fifteen (15) days from the time that the Annual Certified Statement is due. In the event that the Annual Certified Statement indicates an overpayment for any Lease Year or portion thereof during the Term, the City, upon approval of such Annual Certified Statement, shall reimburse Tenant, for the difference between the amounts paid by Tenant under Article 5 and the amount due based upon the Annual Certified Statement or as a credit against future payments of Rent hereunder until fully applied. In the event that this Lease is terminated in accordance with the terms hereof, such reimbursement shall be made as a lump sum payment within ninety (90) days after the expiration or earlier termination of this Lease. |
5.8 |
Books, Records and Audits. |
(a)Except as provided below, Tenant shall cause its Subtenants to prepare and maintain at their respective principal business offices located in the United States and to make the same available for inspection in Chicago full, complete and proper books, records and accounts in accordance with generally accepted accounting procedures relating to and setting forth the Gross Receipts, both for cash and on credit, and must require and cause its operations personnel to prepare and keep books, source documents, records and accounts sufficient to substantiate those kept by the Subtenants. The books and source documents to be kept by the Subtenants shall include true copies of all federal, state and local tax returns and reports, daily receipts from all sales and other pertinent original sales records and records of any other transactions conducted in or from the Concession Premises by anyone conducting business in or from the Concession Premises. Pertinent original sales records for Subtenants are to include: (i) cash register tapes, including tapes from temporary registers; (ii) sequentially numbered transactions; (iii) original records indicating that merchandise returned by customers was purchased at each Subtenant Premises by the customers; (v) detailed original records of any exclusions or deductions from Gross Receipts; (vi) sales tax records; and (viii) such other sales records, if any, that would normally be examined by an independent accountant under accepted auditing standards in performing an audit of the Gross Receipts. Tenant or its Subtenants (as the case may be) must maintain any such books, records, and source documents in a secure location for a period of five (5) years following the expiration of each Lease Year during this Lease and for the same period following the final Lease Year.
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(b)Tenant shall cause each of its Subtenants to record at the time of each sale or other transaction, in the presence of the customer, all receipts from the sale or other transaction, whether for cash, credit or otherwise, in a POS System having a cumulative total that must be sealed in a manner approved by the Commissioner and that must possess such other features as reasonably required by the Commissioner. The books, records and accounts, including any sales tax reports that Tenant and its Subtenants may be required to furnish to any government or governmental agency, must at all reasonable times be open to the inspection (including the making of copies or extracts) of the Commissioner, the Commissioner’s auditor or other authorized representative or agent at Tenant’s or the applicable Subtenant’s principal business office located in the United States (with copies thereof to be made available for inspection within the City of Chicago, if so requested by the Commissioner) for a period of at least three (3) years after the expiration of each calendar year falling wholly or in part within the Term. All of the costs and expenses incurred in any such examination or inspection by the City shall be at the City’s sole cost and expense except as otherwise provided in this Lease. Tenant shall conduct audits of the books and records of its Subtenants from time to time as Tenant deems necessary or desirable and shall conduct such an audit of each Subtenant at least once every three (3) Lease Years. Notwithstanding the foregoing, Tenant shall not be required to audit the books and records of any Subtenant more often than once per Lease Year and not more often than two (2) times over a period of three (3) Lease Years.
(c)The acceptance by the Commissioner of payments of any Premises Rent is without prejudice to the Commissioner’s right to conduct an examination of the Tenant’s books and records related to Rent and/or its Subtenant’s books and records relating to Gross Receipts at the Concession Premises, in order to verify the amount of Rent due hereunder and to verify the amount of Gross Receipts made in and from the Concession Premises.
(d)After providing Tenant at least three (3) days prior written notice, the Commissioner may inspect the books and records of any Subtenant but shall provide five (5) days prior written notice in the case of inspection of Tenant’s books and records. Further, at its option, the Commissioner may at any reasonable time, upon no less than ten (10) days prior written notice to Tenant cause a complete audit to be made of Tenant’s entire records relating to the Concession Premises for the period covered by any statement issued by Tenant as above set forth. If the audit discloses that Tenant’s statement of Rent is understated to the extent of:
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(i) |
Three percent (3%) or more, Tenant must promptly pay the City the cost of the audit in addition to the deficiency (and any interest on the deficiency at the Default Rate), which deficiency is payable in any event; and if |
(ii) |
Five percent (5%) or more due to Tenant’s fraudulent or willful misconduct, an Event of Default is considered to have occurred, and the City shall have in addition to all other remedies available under this Lease, at law, or in equity, the Commissioner has the right to terminate this Lease immediately upon giving notice to Tenant, without any opportunity for Tenant to cure. |
In addition to the foregoing, and in addition to all other remedies available to the City, if Tenant or the City’s auditor schedules a date for an audit of Tenant’s records and Tenant fails to be available or otherwise fails to comply with the reasonable requirements for the audit, Tenant must pay all reasonable costs and expenses associated with the scheduled audit.
5.9 |
Lien. In addition to any liens as may arise under Illinois law, the City has a contractual lien under this Lease on all property, including Tenant’s personal property located on the Premises, as security for non-payment of any Rent due. |
ARTICLE 6
TRANSFERS OTHER THAN SUBLEASES
6.1 |
City. |
The City expressly reserves the right to sell, assign or otherwise transfer all or any part of its interest under this Lease, at any time and to any third party. Upon the effective date of such a sale, assignment or transfer, the City is forever relieved, from and after such date of any and all obligations arising under or out of this Lease, to the extent such obligations are assumed by the buyer, assignee or transferee.
6.2 |
Tenant. |
(a)Transfers. Except as expressly provided elsewhere in this Lease, neither this Lease nor any interest of Tenant in this Lease or the leasehold created hereby shall be directly or indirectly sublet, sold, assigned, transferred, mortgaged, pledged or otherwise disposed of or encumbered (each considered a “Transfer”) without the express written consent of the City. A change in ownership or control of Tenant, either directly or indirectly, shall be deemed a Transfer.
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(b)City Consent. Whenever City consent is required, a Transfer of all of Tenant’s interest in this Lease or the leasehold created hereby shall require consent of the City Council of the City of Chicago, which may be withheld in the sole discretion of the City Council, and a Transfer of less than all of Tenant’s interest shall require consent of the Commissioner. In determining whether or not to consent to a Transfer, City will take into account, without limitation, the promotion of a competitive environment at the Airport in light of the then-existing circumstances, the proposed use of the Premises by any transferee, the balanced utilization of the Airport facilities, operational considerations relating to the characteristics of the proposed transferee, the financial condition of the proposed transferee and the impact on City”s ability to exercise control over the Airport. Consent by City to any type of Transfer shall not in any way be construed to relieve Tenant from obtaining further authorization from City for any subsequent Transfer of any nature whatsoever.
(c)Transfers not requiring City Consent..
(i)Transfers to Affiliates. Tenant may effect a Transfer to an Affiliate of Tenant without City consent with sixty (60) days’ prior notice to the City, provided that: (i) the proposed transferee Affiliate is in compliance with all of the legal requirements of this Lease, (ii) the proposed transferee Affiliate is sufficiently financially responsible, experienced and capable to perform Tenant’s obligations under this Lease, (iii) the proposed transferee Affiliate assumes all of Tenant’s obligations under this Agreement, (iv) in the Commissioner’s reasonable opinion, the Transfer will not have a material adverse effect upon the Airport or operation of the Terminal, (v) no Event of Default then exists and (vi) the transferee Affiliate executes the City’s EDS form and certifies therein compliance with all laws and ordinances referenced.
(ii)Transfers Due to Trading on a National or International Exchange. Transfers that are changes in ownership of Tenant due to trading in or issuance of a parent company’s stock or other forms of ownership interests on a national or international exchange shall not be subject to City consent; however, Tenant shall promptly notify the City of any such change in ownership which would require disclosure of a new owner or disclosure of other changes in percentage ownership on the then-current version of the City’s EDS form, and Tenant shall submit revised EDS form(s) accordingly. As used in this provision, “national or international exchange” means the New York Stock Exchange, the American Stock Exchange, or their foreign equivalent.
(d)Tenant to Remain Primarily Liable. Notwithstanding any Transfer, with or without City consent, Tenant shall remain fully liable for the payment of all of its fees and fully responsible for the performance of all of its other obligations hereunder, except where the City Council consents to the Transfer and expressly relieves Tenant of such liability and responsibility.
(e)Requests for City Consent. Any and all requests by Tenant for City consent to a Transfer shall be made in writing to City. Upon request by City, Tenant shall provide copies of the proposed documents of Transfer. Requests for City consent to a Transfer shall completely disclose any and all monetary and non-monetary considerations made or to be made to Tenant for said Transfer and shall include completed EDSs from the proposed transferee. Any or all of the requests by Tenant for consents under this Section must be made in writing and provided to the Commissioner (a) at least 60 days prior to the proposed Transfer if the Commissioner’s consent is required; and (b) at least 120 days prior to a proposed Transfer if the City Council’s consent is required, unless the City determines that more time is required.
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(f)City’s Right to Collect from Transferee. If any Transfer shall occur, with or without City consent, City may collect fees and other sums to be paid under the Lease from any assignee, sublessee or other transferee of Tenant, and in such event shall apply the net amount collected to the fees and other sums payable by Tenant hereunder without such action by City releasing Tenant from any of its obligations hereunder. If any Transfer requiring City consent shall occur without City consent, and if City collects fees and other sums from the transferee and applies the net amount collected in the manner described in the preceding sentence, such actions by City shall not be deemed to be a waiver of the consent requirement or constitute acceptance of such transferee.
(g)Transfers Without City Consent Void. Any Transfer requiring City consent made without such City consent shall be void and of no effect. Further, any such Transfer shall constitute an Event of Default subject to all remedies, including termination of this Lease at the City’s option, and does not relieve Tenant of any of its obligations under this Lease for the balance of the Term. This Section applies to prohibit a Transfer, such as an assignment by a receiver or trustee in any federal or state bankruptcy, insolvency or other proceedings or by operation of law. Under no circumstances will any failure by the Commissioner to act on or submit any request by Tenant or any Subtenant to City Council or to take any other action as provided in this Lease be deemed or construed to constitute consent to the Tenant’s or any Subtenant’s request by the Commissioner or by the City Council.
(h)Excess Rent. In the event of a permitted Transfer of all or any portion of the Premises or Transfer of all or any portion of the Term, where the fees or rent payable to Tenant exceed the Rent or pro rata portion of the Rent payable by Tenant to City under this Lease, as the case may be, for the Premises or Term, Tenant must pay the City monthly, as Additional Rent, at the same time as the monthly installments of other Rent under this Lease that are payable in monthly installments, the excess of the fees or rent payable to Tenant pursuant to the Transfer over the Rent payable to the City under this Lease.
(i)City Expenses. All reasonable costs and expenses actually incurred by the City in connection with processing its consent to a proposed Transfer shall be payable to the City as Additional Rent.
(j)Subleases. Although Subleases are not considered Transfers for purposes of this Article, similar restrictive provisions on Transfers will be included in every Sublease so that Subtenants may not Transfer their Subleases or their interests in them without Tenant and City consent.
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ARTICLE 7
CONCESSION MANAGEMENT AND OPERATIONS
7.1Concession Plan. Tenant shall develop, market, manage and sublease the Concession Program so as to provide a first-class, high-quality customer service oriented Concession Program in accordance with the Concession Plan. The initial Concession Plan shall be deemed to be the plan for operation of the Terminal’s concessions as contained in the Tenant’s Proposal. Tenant may propose amendments or modifications to the Concession Plan from time to time, subject to the approval of the City which may be granted or withheld in its sole and absolute discretion. Further, the City shall have the right to direct Tenant to alter or modify the Concession Plan as it deems reasonably necessary or appropriate to meet the demonstrated needs of Actual Enplaned Passengers in the Terminal.
7.2 |
Tenant’s Concession Management Program Responsibilities. In managing and operating the Concession Program, Tenant shall, without limitation, perform the following duties: |
(a)Develop, market, manage, and sublease the Concession Program pursuant to the terms of this Lease;
(b)Enter into Subleases of the Concession Premises and any Storage Premises, as the case may be, in accordance with the Concession Plan. All Subtenants (other than the Initial Operators and the existing operators as defined in Article 3) shall require the written consent of the City, and their Subleases shall be subject to and subordinate to this Lease. As provided in Article 3, Subleases shall contain similar enforcement clauses (including, without limitation, default and penalty clauses) to those contained in this Lease, shall be consistent with this Lease and shall be otherwise substantially similar to the Sublease form submitted by Tenant and approved by the City pursuant to Section 3.4 hereof;
(c)Bill and use its best efforts to collect all amounts payable to Tenant by each and every Subtenant pursuant to the terms of the respective Subleases;
(d) |
Monitor the sales activity of each and every Subtenant; |
(e)Ensure that the Subtenants operate in a manner comparable to retailers in first-class dining and retail projects in the Chicago metropolitan area and so as to not interfere with Airport operations or create any hazardous situation;
(f)Conduct audits of Subtenant compliance with the Service and Performance Operating Standards as provided below; (g)Continuously manage the Concession Plan and Concession Program and cause its Subtenants to continuously operate in accordance with this Lease;
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(h)Monitor and use commercially reasonable and good faith efforts to enforce the compliance by all Subtenants of all ACDBE requirements as set forth in this Lease;
(i)Use good faith efforts to assist the City’s Construction Manager to monitor and report Tenant’s and Subtenants’ compliance with their respective MBE/WBE Participation Plans;
(j)Maximize the financial return to the City and Tenant and, in addition, provide quality services to the public in accordance with the pricing policies set forth in this Lease;
(k)Understand and implement those changing trends in the retail, food and beverage, news & gifts and service industries, to the extent permitted to do so under the Subleases;
(l)Attend meetings at the request of the Commissioner with respect to Tenant’s obligations under this Lease and issues related to the Concession Plan and Concession Program. Tenant shall cause members of its Operational Staff as defined below or senior employees or staff (and, if needed, Subtenant representatives) to attend such meetings as may be reasonably requested by the Commissioner;
(m)Provide the City with such data and information with respect to the Concession Plan and Concession Program as the City may reasonably request from time to time, including sales forecasts; and
(n)Oversee, manage, and use diligent efforts to enforce all obligations by Subtenants with the provisions of this Lease and the respective Subleases. Tenant shall not unjustly discriminate among Subtenants in the enforcement of their Subleases.
7.3 |
Service to the Public. Tenant acknowledges and agrees that the Concession Program operations are an important service to users of the Terminal and vital for the economic development of the City, and that therefore Tenant and the Subtenants shall conduct themselves in a first-class, businesslike, efficient, courteous and accommodating manner. Tenant shall, and shall cause the Subtenants to, render those public services generally performed by parties providing concession operations at the Airport, including, without limitation, making reasonable change, giving directions, welcoming and assisting international travelers and assisting the public generally. Tenant shall have the authority to manage and administer the Concession Program, subject to the rights of the City specified herein to direct Tenant in order to ensure that the Airport operates in the most effective and efficient way possible, and to supervise the performance of Tenant and the Subtenants as provided in this Lease. |
7.4 |
Maximization of Business. Tenant covenants to take all reasonable measures to maintain, develop and facilitate the increase of the business conducted by the Subtenants and, in addition, shall provide quality services to the public in accordance with the pricing policies set forth in this Lease. Tenant further covenants that it will not divert or cause or allow to be diverted any business from the Concession Premises to other locations outside of the Terminal. |
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7.5 |
Obligation to Discontinue. Tenant agrees to promptly discontinue or remedy any practice of the Concession Program operations or the sales of any items or the offering of any services which are objectionable to the Commissioner and shall use commercially reasonable efforts cause the Subtenants to do likewise. Live entertainment in the Terminal is prohibited without the advance written approval of the Commissioner. |
7.6 |
Annual Marketing Plan. Tenant shall no later than forty-five (45) days prior to the expiration of each Lease Year of the Term, present an annual marketing plan describing the Tenant’s strategy for concession operations for the subsequent Lease Year (“Annual Marketing Plan”) to the Commissioner for review and approval which approval shall not be unreasonably withheld, conditioned or delayed. Such Annual Marketing Plan shall contain a summary on proposed advertising events, sales promotions, public relations, customer service training for Subtenants and results of Subtenant secret shops and Subtenant employee incentive contests and other items. |
7.7 |
Standards of Service. Tenant shall comply with the following standards of service in the management of the Concession Program. |
(a)Staffing/Personnel. Tenant shall employ a full-time trained professional staff (“Operating Staff’) at all times during the Term of this Lease of sufficient size, expertise, ability, suitability, and experience in retail, customer service and lease management to carry out all of its obligations and responsibilities under this Lease and Tenant shall maintain a sufficient number of Operating Staff on-site at the Premises during the normal business hours of 8:30 am to 5:30 pm local time (but such Operating Staff shall be available at other times as provided below) in accordance with the staffing plan submitted by Tenant (the “Staffing Plan”). Such Staffing Plan, upon approval by the City, shall be modified upon the reasonable request of the City. The Parties hereby agree that the Staffing Plan reflects that Tenant’s Operating Staff shall be limited to a General Manager, Assistant General Manager - Marketing and Operations and an administrative assistant unless otherwise mutually agreed to in writing by the Parties. Tenant shall cause its Subtenants to maintain a sufficient number of personnel including, without limitation, cashiers, management and supervisory personnel to fully meet the needs of customers during the Service Hours. Tenant’s Operating Staff on the Premises shall be available by telephone and/or such other communication device as the City may require during the Service Hours.
(b)Service Hours. The Airport is open for business every day, three hundred sixty-five (365) days per year and is busy during non-traditional working and shopping hours. Accordingly, “Service Hours” shall include the hours the Concession Program shall be open as directed by the City from time to time, including without limitation, the hours necessary to provide service for the earliest daily incoming and outgoing flights (including the provision of service to passengers who arrive in advance of same) and the latest daily incoming and outgoing flights, including non-scheduled activity by charter airlines. To that end, Tenant shall cause its Subtenants to open and operate the Concession Program, during hours directed by the City; provided that, if passenger traffic conditions, flight scheduling, flight delays or other considerations make it necessary, in the reasonable opinion of the City, the Concession Program shall be open at times not then scheduled. The City reserves the right to direct Tenant to change or adjust the Service Hours, and Tenant agrees and covenants to cause the Subtenants to open and adequately staff the Concession Program during the hours directed by the City. The City shall give Tenant at least thirty (30) days notice of any permanent adjustment in Service Hours. In addition, in an emergency, as determined by the City, Tenant shall use commercially reasonable efforts to cause the Subtenants operating essential concessions (such as newsstands and food & beverage concessions) to open or keep open the Concession Program or portions thereof upon two (2) hours prior verbal notice. The Service Hours and the need for flexibility as described herein shall be included in all Subleases.
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(c)Customer Service. Tenant’s and Subtenant’s employees shall provide a high level of customer service consistent with a first class concession program. Tenant’s and its Subtenant employees shall be courteous, neat in appearance, appropriately attired and shall use skill and diligence in the conduct of business. Tenant’s and Subtenant’s employees shall have sufficient knowledge of the Terminal and of the Airport to promptly and courteously direct and assist passengers in and around the Terminal and the Airport, including, without limitation, to airlines, Gates, customer information booths or customer information personnel, baggage carts, ATMs, other concession locations, telephones, rest rooms, escalators and elevators, exits and access to other terminals and ground transportation. No employee of Tenant or its Subtenants shall act in a loud, offensive or otherwise objectionable manner or in a manner detrimental to the best interests of the City. Each Concession Premises shall accept all major credit cards and shall provide change-making services without charge upon request. Tenant shall provide initial and on-going customer service training to its and its Subtenants employees in order to ensure compliance with the specific Service and Performance Operating Standards and to provide a high level of customer service, consistent with a first class food and beverage operation in general. All costs and expenses associated therewith shall be paid from the Marketing Fund.
(d)Concession Premises Facilities and Equipment. Tenant shall cause its Subtenants to operate the Concession Premises in a well-organized, safe, professional, clean and attractive manner and condition. All Operating Equipment shall be maintained in good condition and repair.
(e)Customer Complaints. In the event that Tenant or any of its Subtenants receive any written complaint concerning the Concession Program or any concession operations therein, Tenant shall within twenty-four (24) hours of receipt of such complaint by Tenant forward a copy of the complaint to the Commissioner and Tenant shall or shall cause its Subtenants to respond to such complaint in writing within three (3) days after receipt thereof and shall make a good faith effort to explain, resolve or rectify the cause of such complaint. Tenant shall submit a copy of its response to complaint to the Commissioner upon issuance of said response if from Tenant or upon receipt of said response if from a Subtenant. If the City receives a written complaint regarding the Concession Program or any concession operations therein, the City shall forward a copy of the same to Tenant and Tenant shall respond as set forth herein.
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(f)Resident General Manager/Emergency Contact. In order to assure compliance with the terms, covenants and conditions of this Lease, Tenant shall retain a qualified competent manager suitably experienced and acceptable to the City to provide on-site management of the Concession Program on a full-time basis to manage all of Tenant’s obligations and responsibilities under this Lease (the “Resident General Manager”). Tenant shall notify the City of the identity of its Resident General Manager and of any changes in such identity. Tenant shall assure that the Resident General Manager or his or her designee, acceptable to the City, is available, by telephone and such other communication device as the City may require, on a 24 hour per day, seven (7) days per week basis to respond to the City on day to day issues and in the event of emergencies. Tenant shall notify the City of the name and telephone number of such representative and shall update such information as necessary. If any Resident General Manager, in the City’s reasonable judgment, does not perform up to standards consistent with the fulfillment of Tenant’s obligation and responsibilities under this Lease, Tenant, in good faith, shall promptly take steps to remedy any such failure in performance.
(g)Continuous Operation. As provided in Article 3, Tenant hereby covenants that it shall continuously sublease, market, and manage any available Concession Premises pursuant to the terms of this Lease and shall from and after the Latest Date of Beneficial Occupancy cause its Subtenants to continuously and uninterruptedly occupy and use the Concession Premises for the Concession Program and shall keep the Concession Program open for business during the Service Hours, except as may otherwise be permitted under this Lease or to the extent Tenant or any of its Subtenants may be prevented therefrom by Force Majeure, or occasioned by the City’s negligence or willful misconduct. Tenant acknowledges that the Concession Program are essential services at the Terminal and Tenant’s failure to cause its Subtenants to provide continuous operation of the Concession Program or any portion thereof will result in damages to the City that are difficult to quantify in light of airport operational and customer service factors. Therefore, in addition to any other remedies set forth herein, the City may assess, and if so assessed, Tenant shall pay to the City as liquidated damages and not as a penalty, the amount of Three Hundred Dollars ($300.00) each day the Concession Program is not continuously operated.
7.8 |
Concession Monitoring. |
Performance Standards and Audits. Tenant acknowledges the desire of the City to provide first class, customer service oriented concessions to the traveling public and other customers of the Terminal, consistent with the provisions of this Lease. Tenant shall use commercially reasonable efforts to cause its Subtenants to maintain the Concession Premises in a clean, neat, sanitary and safe condition in accordance with the service and operating standards which have been reviewed and approved by the City and attached hereto as Exhibit M (“Service and Performance Operating Standards”) and in accordance with the provisions of this Lease. Tenant shall work with its Subtenants to achieve and maintain compliance with such requirements, including but not limited to, conducting daily walk through inspections and periodic meetings with Subtenants on an as needed basis.
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In addition, Tenant shall conduct formal performance audits of a selection of the Concession Premises on a quarterly basis and more frequently as needed, without notice to any Subtenant, to ensure that all requirements of this Lease and the Subleases are met. Such audits shall be conducted by Tenant or by consultants hired by Tenant, at no expense to the City, but payments for any third party consultants shall be permitted from the Marketing Fund contributions from the Subtenants. The City reserves the right to participate in such audits, at its discretion and at its own expense, to conduct its own audits in accordance with the provisions hereof; without notice to any Subtenant and to request that Tenant conduct an audit at a time not then scheduled. The City may enter any Concession Premises for the purposes described hereunder, at any time, without notice to Tenant or any Subtenant.
Tenant shall notify each Subtenant of any deficiencies and of any failure to meet a Minimum Performance Standard (as defined in the Service and Operating Performance Standards) and shall use commercially reasonable efforts to cause the Subtenant to correct the deficiency and Tenant shall assess and collect the appropriate liquidated damages. Tenant may, in its reasonable business judgment and in light of the circumstances then present in the Terminal, use such judgment and circumstances in determining whether liquidated damages shall be assessed and collected whenever a Minimum Performance Standard is not met. Such deficiencies and the amount of the liquidated damages imposed shall be reported to the City. If the deficiency is not corrected within the applicable grace period, Tenant may impose and collect the appropriate additional liquidated damages or Tenant may pursue other remedies provided in the Sublease or available at law or in equity. If assessed, liquidated damages imposed for failure to correct a deficiency within the applicable grace period or for failing to meet a Minimum Performance Standard shall accrue on a daily basis until the deficiency is corrected and shall be reported by Tenant to the City. All liquidated damages collected under this Section shall be retained by Tenant to cover its overhead administrative expenses.
If the City determines that a Subtenant has failed to properly correct any deficiency after receiving notice from Tenant, the City shall have the right, but not the obligation, to so notify the Tenant in writing as to the steps to be taken by Tenant and Subtenant and Tenant shall thereafter pursue any and all other appropriate remedies available pursuant to the Sublease, and at law or in equity.
The City expressly reserves the right to establish its own concession monitoring program and Tenant agrees to comply with and to cause its Subtenants to comply with the provisions of the City’s concession monitoring program following sixty (60) days prior written notice to Tenant by the City.
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7.9 |
Street Pricing. Tenant shall provide in the Subleases that Subtenants shall not be permitted to charge prices in excess of one hundred and ten percent (110%) of Street Prices, as hereinafter defined, for all types of merchandise sold and services rendered by Subtenants from the Concession Premises. The Street Price shall be determined as follows: |
(a)If a Subtenant conducts business in non-Airport locations, the Street Price is the price charged for the same merchandise or service at the nearest non-Airport location (provided, however, if a Subtenant operates in downtown Chicago, then any such location shall be used for comparison and such pricing shall prevail over other Subtenant prices), excluding short-term promotional and other sale prices.
(b)If a Subtenant does not operate in non-Airport locations, the Street Price for all and the same merchandise and services (except as provided in subsection (c) of this Section with respect to food and beverages sold for immediate consumption by restaurant, snack bar or other food and beverage concessions), is the average price charged for such goods and services by three (3) comparable businesses in the metropolitan Chicago area where comparable merchandise or services are sold. Notwithstanding subsection (c) of this Section, this subsection (b) is intended to govern the Street Price of packaged food including, without limitation, candy, gum, pre-packaged snack items and other food and beverages sold for consumption off Premises.
(c)If a Subtenant does not operate in non-Airport locations, the Street Price for all food and beverage merchandise (including alcoholic beverages) sold for immediate consumption by any restaurant, snack bar, or other food and beverage concession shall be based on menu prices or price lists of three (3) comparable businesses or restaurants operating in the Chicago metropolitan area (as mutually and reasonably agreed to by Tenant and the City, taking into account variations in quality, service, portion size and ambiance at such comparable establishments).
(d)If the product or service offered is neither sold by the Subtenant in non-Airport locations nor readily available from comparable businesses in the Chicago metropolitan area, and does not fall within any other category described in this Section, the Street Price shall be based on reasonable comparisons mutually agreed to by the Parties.
(e)If the Subtenant sells duty free merchandise, then the Street Price of such duty free merchandise shall be based on reasonable comparisons with other duty free airport concessions operating in large urban airports located in major cities (top twenty in total population) in the United States.
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From time to time but not less than once per year, Tenant shall conduct a sampling survey of Subtenants’ prices to determine a Subtenant’s compliance with this Section and the costs of such surveys shall be paid from the Marketing Fund.
7.10 |
Other Pricing Policy. The Commissioner may adopt other reasonable pricing policies, with which Tenant and Subtenants shall comply, to restrict overcharging and price gouging by Subtenants due to their dominant market position and any exclusive rights granted, but in no event shall the Commissioner require prices lower than the Street Prices. |
7.11 |
Subtenant Sales. Tenant shall monitor the sales activity of each and every Subtenant and shall develop an action plan (with respect to merchandising, management and marketing efforts) for Subtenants who do not meet sales projections and work with Subtenants to improve performance. Tenant shall inform the City of such failures and shall propose corrective action to be taken and the time frame during which such steps shall be taken to improve Subtenants’ sales performance for the City’s approval. The City may modify, alter or amend such corrective action plan and may direct Tenant to take other reasonable measures if the Subtenant’s performance does not improve within such time frame as permitted under the Sublease, and at law or in equity. The foregoing shall not be applicable if the failure of a Subtenant to meet its sales projections results primarily due to factors beyond the Subtenant’s control, such as a decrease in airlines operating from the Terminal or a decrease in the Actual Enplaned Passengers in the Terminal, for example. |
7.12 |
Vendors, Suppliers and Contractors. Except as otherwise provided herein, Tenant and its Subtenants shall have the right to obtain supplies or services from suppliers, vendors or contractors of their own choice for their operations at the Airport, provided that the City reserves the right to license and regulate all persons or companies doing business on the Airport and to prohibit persons from engaging in aeronautical activities, the provision of ground transportation services or any commercial activities at the Airport except in accordance with this Lease and agreements, concession contracts, permits or operating agreements entered into between the City and said persons. |
7.13 |
Access for Delivery and Removal. Tenant shall not and shall not allow its Subtenants to receive or remove supplies, material, equipment, rubbish or debris through any Common Areas or service areas or otherwise utilize said areas, except at such times and in such manner and by such route as may from time to time be designated by the City. In connection with the Redevelopment and the new Concession Program, Tenant shall upon request submit to the City a plan for the removal of rubbish and for the delivery and removal of supplies, material and equipment, subject to approval by the City in its sole and absolute discretion. The City reserves the right to require Tenant and its Subtenants to participate in the City’s recycling program. |
7.14 |
Efficient Use of Space. Tenant acknowledges that a portion of the Concession Premises is to be used by the traveling public. Tenant shall make and shall cause its Subtenants to make available such space to the traveling public on a nondiscriminatory basis and shall coordinate its activities and operations with abutting tenants and the City so as to maximize efficient use of available space. |
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7.15 |
No Waste or Nuisance. Tenant covenants and agrees that it shall not and shall not allow its Subtenants to injure, deface or otherwise harm the Premises or use the Premises in any manner that will constitute waste, and that it shall not cause or permit any unlawful conduct, unreasonable annoyance or nuisance to exist on the Premises, nor permit any activity or omission which constitutes or results in unlawful conduct, unreasonable annoyance or nuisance nor permit the emission of any objectionable noise, vibration or odor nor overload the floor of the Premises, nor permit any use of the Premises which will invalidate or increase the premiums on any of the City’s insurance. |
7.16 |
Signs/Corporate Identification/Promotional Materials. Tenant shall not place or allow its Subtenants to place on the exterior walls of the Premises (including both interior and exterior surfaces of windows and doors) or on any part of the Terminal outside the Premises, any signs, symbols, advertisements or the like visible from outside of the Premises without the prior written consent of the City in accordance with the City approval process, which consent may be withheld in the City’s sole and absolute discretion. Tenant acknowledges that a separate contract for advertising at all of the City’s facilities is in effect, and that all signage, including promotional material and activities of Tenant and Subtenants may be restricted by and subject to its provisions. |
7.17 |
Cleaning, Janitorial and Pest Control. Tenant shall or shall cause its Subtenants to provide cleaning, janitorial and pest control services to the Concession Premises. Tenant shall be entitled to retain an independent third party to provide such cleaning, janitorial and pest control services and charge the actual costs incurred, without any administrative mark-up or profit to Tenant, proportionately to all Subtenants as Operating Costs. |
7.18 |
Revenue Control. |
(a)Upon the request of the Commissioner, Tenant shall use commercially reasonable efforts to make available monthly sales data by causing its Subtenants to provide sales and activity data reporting, and statistical analysis on a calendar month basis and by providing electronic cash control systems for each Concession Premises (“Point of Sale Data”), reflecting the amount of each sales transaction, items sold per transaction, time and date of the transaction, and specifying the sales category applicable to each item sold.
(b)At such time, if any, as computerized Point of Sale Data systems (“POS Systems”) have been developed to a point where there is an industry standard and the City installs infrastructure compatible with such industry standard, then Tenant shall upon request use commercially reasonable efforts to require each of its Subtenants, and at the Subtenants’ own expense, to install such a POS system in the Subtenant Premises or, if it already uses such a system, must use reasonable efforts to promptly cause the system to conform to the City’s POS Systems and permit the City to connect the City’s POS System to each Subtenant’s POS System using fiber optic cable or otherwise.
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ARTICLE 8
CONSTRUCTION, MAINTENANCE AND REPAIR
8.1 |
City Improvements. On ,2011, the City shall deliver the Premises in its AS-IS Condition and the City shall also permit Tenant to take over the responsibility for the overall management of the existing concessions in the Transition Premises including management of existing concession operators with respect to the operation of any concessions which shall continue to operate during the transition of the Concession Program and prior to the Redevelopment. The City shall not be obligated to make or cause to be made any improvements of any nature to the Premises except as and only to the extent expressly set forth in the Scope of Work. In the event that the City makes or causes any improvements to be made (“City Improvements”), the City shall own and maintain said City Improvements, unless otherwise agreed to in writing. |
8.2 |
City Maintenance and Repair. The City shall repair and maintain in good condition the Common Areas, the exterior and the structural portions of the Premises and the Terminal, including the roofs and any building systems not required to be maintained by Tenant pursuant to this Article 8 as well as the overall Airport property including the Landing Area. |
8.3 |
Tenant and Subtenant Improvements. |
(a)General. All Tenant Base Building Improvements and Subtenant Fixed Improvements shall: (i) be constructed in accordance with Plans and Specifications approved in writing by the City; (ii) be constructed by Contractors pursuant to written construction contracts entered into between Tenant or Subtenants and the Contractor named therein; (iii) be constructed and installed in a good and workmanlike manner using only new (or recycled sustainable) materials; (iv) be constructed in compliance with all applicable statutes, ordinances, building codes, codes and rules, regulations, and directives of any local, state or federal entity having jurisdiction and all generally applicable procedures and requirements of the City including the City’s TDCPM; (v) be constructed at Tenant’s or Subtenant’s sole expense and at such times and in such manner as the City may from time to time reasonably designate without unreasonable interference with or disruption of the operations of tenants or other occupants of the Terminal and the Airport; and (vi) become part of the Premises unless the City elects otherwise in accordance with the TDCPM.
(b)Plans and Specifications. Subject to Force Majeure as defined in this Lease or to events beyond Tenant’s or any of its Subtenants’ reasonable control, Tenant shall use diligent efforts to submit in a timely manner and cause its Subtenants to submit in a timely manner complete Plans and Specifications to the City for Tenant’s Base Building Improvements and the Subtenant Fixed Improvements, including all storefronts and other designs in accordance with the requirements of the City approval process in a manner to allow for completion of construction of Tenant’s Base Building Improvements and the Subtenant Fixed Improvements in accordance with the proposed Completion Dates set forth in the Redevelopment plan. All of such Plans and Specifications shall be submitted for approval by the City in accordance with the City approval process prior to the commencement of any construction. The City shall use its best efforts to notify Tenant in writing of its approval, disapproval or comments upon any Plans and Specifications submitted in accordance with the City approval process within thirty (30) days of its receipt. Within one hundred eighty (180) days of the completion of construction of the Tenant’s Base Building Improvements or a Subtenant’s Fixed Improvements, Tenant with respect to Tenant’s Base Building Improvements shall deliver to and shall cause its Subtenants with respect to the Subtenant’s Fixed Improvements to deliver to the Commissioner final and complete “as-built” Plans and Specifications as outlined in the TDCPM.
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The City’s approval of any Tenant or Subtenant Plans and Specifications may be withheld, granted or conditioned upon factors which it determines in its sole discretion has or may have an impact upon the City, the Airport, the Terminal or its efficient or productive operation thereof; including but not limited to, the removal of the proposed improvement, structure, alteration, modification, sign or addition upon termination or expiration of the Tenant’s or any Subtenant’s occupancy of the Concession Premises, if a Subtenant so desires to remove. The City shall notify Tenant in writing of its approval, disapproval or comments upon any request submitted in accordance with the TDCPM then in effect.
The City’s approval of any Plans and Specifications shall not be deemed or be construed to indicate or demonstrate adequacy of the design, construction or safety of the proposed improvement, structure, alteration, modification, sign or addition. Upon completion of the proposed improvement, structure, alteration, modification, sign or addition, Tenant shall or shall cause its Subtenants to deliver “as-built” drawings to the Commissioner.
8.4 |
Tenant and Subtenant Construction Process. |
(a)Tenant shall make and shall cause its Subtenants to make any construction or renovation of any proposed improvement, structure, alteration, modification, sign or addition in conformance with the City’s TDCPM. Any request for the City’s approval of preliminary engineering, architectural plans or other information, shall be in accordance with the requirements of the TDCPM in effect from time to time during the Term.
(b)Tenant shall or shall cause its Subtenants to, at their own expense, remove from the Premises all trash and debris which may accumulate in connection with Tenant’s and Subtenant’s construction activities and, should Tenant fail to do so, the City may, in addition to any other right or remedy of the City, remove such trash and debris following one (1) days’ notice to Tenant, at Tenant’s expense, and the expenses so incurred by the City shall be due and payable by Tenant, as Additional Rent on demand. Tenant expressly acknowledges and agrees that Tenant shall be responsible for obtaining or causing its Subtenants to obtain all necessary permits, approvals and variances and for compliance with all applicable laws and regulations. Tenant shall be entitled to pass through such expenses for any Subtenants who fail to comply with this provision.
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(c)All contracts for the construction or installation of Tenant’s Base Building Improvements and each Subtenant’s Fixed Improvements shall require:
(i)insurance coverage in accordance with Exhibit P and suretyship reasonably satisfactory to the City for the protection of the City, its laborers, suppliers, contractors, subcontractors and the public; and
(ii)that all Contractors comply with all applicable provisions of this Lease.
(d)Tenant and its Subtenants must comply in its design, construction, use, occupancy and operation of the Premises or any Subtenant Premises, at their own cost, with:
(i)all regulations and directives now or later promulgated by the FAA or TSA pertaining to Airport security, as such regulations and directives may be amended or modified from time to time during the Term of this Lease;
(ii)all federal, State of Illinois, and City laws, rules, regulations and ordinances, including all building, zoning and health codes and all Environmental Laws; and
(iii)the TDCPM and the Airport Concession Program Handbook.
Tenant and its Subtenants must complete or cause to be completed all of Tenant’s Base Building Improvements and the Subtenant Fixed Improvements in accordance with all rules, regulations and standards, including the TDCPM, and the approved Construction Documents for any Improvements. If there is a conflict between work requirements stated in this Lease and those set forth in the TDCPM, the terms and provisions of the TDCPM shall control. No construction must take place until the Commissioner has approved the Construction Documents.
8.5 |
Tenant and Subtenants Construction Costs. |
(a)Tenant Base Building Improvements. Within one hundred eighty (180) days of the completion of Tenant’s Base Building Improvements or following any refurbishments made by Tenant to Tenant’s Base Building Improvements during the Term of this Lease Tenant shall furnish the City with a statement certified by an officer of Tenant subject to audit by the City, detailing the actual costs expended for the construction of Tenant’s Base Building Improvements or refurbishments made thereto, as the case may be, along with documentation of such expenditures, invoices and evidence of payment of such invoices and any other documentation the City shall reasonably request. Upon approval by the City, in accordance with the terms of this Lease, the approved amount for Tenant’s initial Base Building Improvements and/or any such refurbishments made thereto shall be deemed for all purposes of this Lease as the “Tenant Certified Construction Costs”.
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(b)Subtenant Fixed Improvements. In connection with the Subtenants’ obligations to construct and install the Subtenant Fixed Improvements and Operating Equipment in the Subtenant Premises, Tenant shall cause the Subtenants to spend, in the aggregate, as to all of the Subtenant Premises, not less than the following amounts per square foot for such Subtenant Fixed Improvements and Operating Equipment hereafter set forth in accordance [**] of the completion of each Subtenant’s Subtenant Fixed Improvements, Tenant shall cause its Subtenants to furnish Tenant with a statement certified by an officer of each Subtenant subject to audit by Tenant and the City, detailing the actual costs expended for the construction of each Subtenant’s Subtenant Fixed Improvements, along with documentation of such expenditures, invoices and evidence of payment of such invoices and any other documentation the City shall reasonably request. Following review and approval of the Subtenant invoices by Tenant, Tenant shall furnish all such information to the City. Upon approval by the City, in accordance with the terms of this Lease, the approved amount shall be deemed for all purposes of this Lease as the “Subtenant Certified Construction Costs”.
(c)Only the following items shall be included in the Tenant Certified Construction Costs and Subtenant Certified Construction Costs:
(i)directly contracted construction, installation and fabrication costs with respect to Tenant’s Base Building Improvements and the Subtenant Fixed Improvements;
(ii)furniture, fixtures, decorative treatments and Operating Equipment purchased for and used in the Premises;
(iii)architectural, design, engineering and construction management costs, not to exceed twenty percent (20%) of the total approved cost of the items as defined in (A) and (B) above. The City reserves the right to require Tenant and Subtenants to provide a list of selected architects, interior designers, and construction managers for prior written approval by the City, which approval shall be timely and shall not be unreasonably withheld.
8.6 |
No Mechanics’ Liens. Tenant or its Subtenants must not permit any mechanics’ lien for labor or materials furnished or alleged to have been furnished to it to attach to any portion of the Premises, any Subtenant Premises, the Terminal or the Airport, Tenant’s leasehold interest, and Subtenant’s leasehold interest or this Lease in any way relating to any work performed by or at the direction of Tenant or Subtenant. Upon making payments to Contractors, Tenant shall use commercially reasonable efforts to obtain from each Contractor a waiver or mechanics’ liens against any portion of the Premises, any Subtenant Premises, the Airport, Tenant’s leasehold interest, and Subtenant’s leasehold interest or this Lease arising out of any work done by the Contractor and each and every of the Contractor’s materialmen and workmen. If, nonetheless, any such mechanics’ lien is filed upon any portion of the Premises, any Subtenant Premises, the Terminal or the Airport, Tenant’s leasehold interest, any Subtenant’s leasehold interest, or this Lease, Tenant, or its Subtenants, as the case may be, shall indemnify, protect, defend and save harmless the City against any loss, liability or expense whatsoever by reason of it and must promptly and diligently proceed with or defend, at its own expense, the action or proceedings as may be necessary to remove the lien. Tenant must deliver notice to the Commissioner of any such lien or claim within fifteen (15) days after Tenant has knowledge of it. Tenant or its Subtenants, as the case may be, may permit the mechanics’ to remain undischarged and unsatisfied during the period of the contest and appeal; provided that, if requested by the Commissioner, Tenant or its Subtenant must within thirty (30) days following the Commissioner’s request post a bond with the City equal to 100% of the amount of the lien. If the lien is stayed and the stay later expires or if by nonpayment of any lien any portion of the Premises, any Subtenant Premises, the Terminal or the Airport, Tenant’s leasehold interest, any Subtenant leasehold interest or this Lease will be, or is claimed to be, subject to loss or forfeiture, then Tenant or its Subtenants must immediately pay and cause to be satisfied and discharged the lien. If Tenant or its Subtenants fails to do so, the Commissioner may, in her sole discretion, draw on the bond and make such payment. If the Commissioner has not requested a bond, then the Commissioner may, in her sole discretion, make such payment out of legally available Airport funds and, in such event, the amount paid shall immediately be payable by Tenant or its Subtenants as Additional Rent. Failure to post a bond when requested by the Commissioner or pay such Additional Rent shall be an Event of Default. |
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8.7 |
City Resident Construction Worker Employment Requirement. |
(a)Use of Residents. In connection with and during the construction of the Work, Tenant, its Subtenants and their respective Contractors must comply with the provisions of §2-92-330 of the Municipal Code of the City of Chicago (“Municipal Code”), as amended from time to time concerning the minimum percentage of total construction worker hours performed by qualified actual residents of the City. At least 50% of the total construction worker hours worked by persons on the site of the Work must be performed by actual residents of the City. Tenant or its Subtenants may request a reduction or waiver of this minimum percentage level of Chicagoans in accordance with standards and procedures developed by the Chief Procurement Officer of the City. In addition to complying with this percentage, Tenant, its Subtenants and any of their respective Contractors are required to make good faith efforts to utilize qualified actual residents of the City in both unskilled and skilled labor positions. “Actual residents of the City” means persons domiciled within the City. The domicile is an individual’s one and only true, fixed and permanent home. Tenant, its Subtenants and each of their respective Contractors (for purposes of this subsection, “Employer”) must provide for the maintenance of adequate employee residency records to ensure that actual Chicago residents are employed. Each Employer will maintain copies of personal documents supportive of every Chicago employee’s actual record of residence.
(b)Certified Payroll Reports. In connection with and during the construction of the Work, weekly certified payroll reports (U.S. Department of Labor Form WH-347 or equivalent) must be submitted to the Commissioner in triplicate and must identify clearly the actual residence of every employee on each submitted certified payroll. The first time that an employee’s name appears on a payroll, the date that the Employer hired the employee should be written in after the employee’s name.
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(c)Inspection of Records. In connection with and during the construction of the Work, each Employer must provide full access to its employment records to the Chief Procurement Officer, the Commissioner, the Superintendent of the Chicago Police Department, the Inspector General or any duly authorized representative of any of them. Each Employer must maintain all relevant personnel data and records for a period of at least three (3) years after final acceptance of the Work. At the direction of the Commissioner, affidavits and other supporting documentation may be required of each Employer to verify or clarify an employee’s actual address when doubt or lack of clarity has arisen.
(d)Level of Effort. Efforts on the part of each Employer to provide utilization of actual Chicago residents that are not sufficient for the granting of a waiver request as provided for in the standards and procedures developed by the City’s Chief Procurement Officer will not suffice to replace the actual, verified achievement of the requirements of this Section concerning the worker hours performed by actual Chicago residents.
(e)Shortfalls; Liquidated Damages. When the Work is completed, in the event that the City has determined that Tenant has failed to ensure the fulfillment of the requirement of this Section concerning the worker hours performed by actual residents of the City or failed to report in the manner as indicated above, the City will thereby be damaged in the failure to provide the benefit of demonstrable employment to Chicagoans to the degree stipulated in this Section. Therefore, in such a case of non-compliance, it is agreed that 1/20 of 1% of the aggregate hard construction costs of the Improvement Costs (the product of .0005 x such aggregate hard construction costs) (as evidenced by approved contract value for the actual contracts) must be surrendered by Tenant to the City as liquidated damages, and not as a penalty, in payment for each percentage of shortfall toward the stipulated residency requirement. Failure to report the residency of employees entirely and correctly will result in the surrender of the entire liquidated damages as if no actual residents of the City were employed in either of the categories. The willful falsification of statements and the certification of payroll data may subject Tenant, its Subtenants and/or the Contractors to prosecution. The City may draw against the Security any amounts that appear to be due to the City under this provision pending the City’s determination as to the full amount of liquidated damages due on completion of the Work.
(f)Nothing set forth in this Section acts as a limitation upon the “Notice of Requirements for Affirmative Action to Ensure Equal Employment Opportunity, Executive Order 11246” and “Standard Federal Equal Employment Opportunity, Executive Order 11246,” or other affirmative action required for equal opportunity under the provisions of this Lease or related documents, as applicable.
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(g)Inclusion in Contracts. Tenant and its Subtenants must cause or require the provisions of this Section to be included in all construction Contracts related to the Work.
8.8 |
Licensing of General Contractor. This Lease is subject to Chapter 4-36 of the Municipal Code which requires all persons acting as a general contractor (as defined in Chapter 4-36) to be licensed as a general contractor by the City. Tenant’s failure to ensure that any general contractor working on Tenant’s Base Building Improvements complies with Chapter 4-36 of the Municipal Code will be an Event of Default under this Lease. Tenant shall also include a similar provision in the Subleases to reflect that a Subtenant’s failure to ensure that any general contractor working on the Subtenant Fixed Improvements complies with Chapter 4-36 of the Municipal Code will be a default by the Subtenants under the Subleases. |
8.9 |
Prevailing Wages. In connection with the construction, repair, and maintenance of Improvements, Tenant must comply with the applicable provisions of 820 ILCS 130/0.01 et seq. regarding the payment of prevailing wages, and the most recent Illinois Department of Labor schedule of prevailing wages, and any successors to them. Tenant and its Subtenants must insert appropriate provisions in all Contracts covering construction work under this Lease to ensure compliance of all construction Contractors with the foregoing wage statutes and regulations. |
8.10 |
Contractor Certifications. Tenant and its Subtenants must require all Contractors performing Work in connection with this Lease to be bound by the following provision and Tenant must cooperate fully and shall cause its Subtenants to cooperate fully with the City in exercising the rights and remedies described below or otherwise available at law or in equity: |
“Contractor certifies and represents that Contractor and any entity or individual that owns or controls, or is controlled or owned by, or is under common control or ownership with Contractor is not currently indebted to the City and will not at any time during the Term be indebted to the City, for or on account of any delinquent taxes, liens, judgments, fees or other debts for which no written agreement or payment plan satisfactory to the City has been established. In addition to any other rights or remedies available to the City at law or in equity, Contractor acknowledges that any breach or failure to conform to this certification may, at the option and direction of the City, result in the withholding of payments otherwise due to Contractor for services rendered in connection with the Lease and, if the breach or failure is not resolved to the City’s satisfaction within a reasonable time frame specified by the City in writing, may result in the offset of any such indebtedness against the payments otherwise due to Contractor and/or the termination of Contractor for default (in which case Contractor will be liable for all excess costs and other damages resulting from the termination.)”
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8.11 |
Project Manager. Tenant shall act as the project manager for the Tenant’s Base Building Improvements and the Subtenant Fixed Improvements, including design and construction and any other Subtenant construction and shall coordinate same with the City pursuant to the City approval process. Tenant shall designate a full-time qualified construction project manager with experience in projects of similar size and scope (“Tenant’s Project Manager”) reasonably acceptable to the City to coordinate construction of the Subtenant Fixed Improvements and Tenant’s Base Building Improvements with the City. Tenant acknowledges that during construction of the Improvements, the Terminal will be operating and other tenants, the traveling public and others will be conducting business in and using the Terminal. Tenant acknowledges that it shall be the sole responsibility of Tenant to coordinate all aspects of construction of the Improvements in a diligent and timely fashion so as to ensure the completion of the Improvements on or before the proposed Completion Dates and the Final Completion Date set forth on the approved Redevelopment plan. |
8.12 |
Periodic Refurbishment Reinvestment. During the Term of this Lease, Tenant shall cause the Subtenants to sufficiently maintain the Concession Premises in a first-class condition normal wear and tear excepted. Throughout the Term of this Lease but no less frequently than every seven (7) years after the opening of each Concession Premises, Tenant shall cause its Subtenants to refurbish and renovate the Concession Premises so that each Concession Premises shall be maintained a contemporary appearance and in a first-class condition at all times. All such refurbishments, alterations, additions or replacements shall be pursuant to a written plan, subject to the prior approval of the Commissioner. Any such refurbishments, alterations, additions, and replacements must be performed in accordance with the terms hereof. Following approval of the costs and expenses for any such periodic refurbishment reinvestment as provided in this Lease, the approved amounts shall be included in Tenant’s Certified Construction Costs or in each applicable Subtenant Certified Construction Costs, as the case may be. |
8.13 |
Ownership of Improvements. Unless otherwise provided herein, Improvements and any alteration or modification thereto installed in the Premises by Tenant or any of its Subtenants shall become part of the Premises, and upon completion of the Improvements title thereto shall vest in the City (subject to Tenant’s and its Subtenants’ leasehold interest), except with respect to Operating Equipment and any other items of personal property in the Premises from time to time. Upon termination of Tenant’s or any of its Subtenant’s occupancy of the Premises or the expiration of the Term, Tenant shall or shall cause its Subtenants, upon request of the City, to remove any Operating Equipment and personal property repair any damage to the Premises caused by such removal, reasonable wear and tear and damage by casualty excepted. If Tenant does not promptly remove or cause the removal of such Operating Equipment and personal property upon request of the City, the City may, without any obligation to do so, enter the Premises and remove such Operating Equipment and personal property, hold the same for the owners thereof or may place the same in a public warehouse, all at the expense and risk of Tenant and/or the Subtenants, as the case may be. Tenant shall or shall cause its Subtenants to reimburse the City for any reasonable expense incurred by the City in connection with such removal, repair and storage. Tenant shall indemnify, release and hold harmless and shall also cause its Subtenants to indemnify, release and hold harmless the City (and Tenant, in the case of a Subtenant) from any and all damage, costs and expenses related to said removal, repair and storage. In addition, the City shall have the right, but not the obligation, to dispose of such property as waste or sell such stored property in accordance with law. In the event the actual and reasonable expenses of such removal, repair, storage, disposal and sale shall exceed the proceeds of such sale, Tenant shall pay or cause its Subtenants, as the case may be, to pay such excess to the City upon demand. |
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8.14 |
Tenant Maintenance and Repair. Tenant shall, at Tenant’s sole cost and expense, keep, maintain and repair or shall cause its Subtenants to keep, maintain and repair the Premises and each and every part thereof; including all Improvements, fixtures, facilities, equipment and interior window glass therein (and including any portion of building systems located outside of the Premises but exclusively serving the Premises) in first class, safe, clean, neat, sanitary and lawful order, condition and repair, excepting only (a) reasonable wear and tear that does not negatively affect the appearance of the Premises and any Improvements thereon, (b) damage caused by fire or other casualty or resulting from the exercise of the power of eminent domain, (c) those repairs expressly required to be made by the City and (d) any condition caused solely by an act, neglect, fault, omission, negligence or willful misconduct of the City, or any agent, contractor or employee of the City. |
Tenant shall not and Tenant shall not allow its Subtenants to place or construct any Improvements, structures, alterations, modifications, signs, communications equipment, wiring or additions or Operating Equipment in, to, or upon the Premises without the prior written approval of the City, in accordance with the City approval process, which may be withheld in the City’s sole and absolute discretion. In the event Tenant fails to obtain the City’s prior written approval, the City may, without limiting other remedies available to it, direct in writing that Tenant or its Subtenants modify, reconstruct or remove any work done without the approval of the City.
8.15 |
Performance of Improvements, Maintenance and Repairs. At no cost to the City, Tenant shall promptly or shall cause its Subtenants to promptly make all repairs, replacements and restorations to the Tenant’s Base Building Improvements and Subtenant Fixed Improvements and to the Premises (other than City’s maintenance and repair obligations pursuant to this Article 8), whether ordinary or extraordinary, foreseen as well as unforeseen. Tenant shall perform all construction of Tenant’s Base Building Improvements, and shall cause its Subtenants to perform all construction of the Subtenant Fixed Improvements, alterations, maintenance or repairs in conformance with all applicable statutes, ordinances, building codes, rules, regulations and directives of any local, state or federal entity having jurisdiction, and in good and workmanlike manner, in accordance in all material respects with the drawings and specifications as may be approved by the City pursuant to the TDCPM Process, as it may be amended from time to time. The Tenant and its Subtenants shall bear any and all costs of compliance with the requirements of this Section. |
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8.16 |
Certain Rights Reserved by the City. In addition to those rights reserved by the City in Article 13 and otherwise contained herein, the City reserves the following rights: |
(a) |
If Tenant or its Subtenants do not, upon reasonable notice and opportunity to Tenant to cure, considering the nature of the maintenance or repair, commence such maintenance and repairs as set forth herein or fails to diligently continue to complete such maintenance or repairs, then the City, in addition to any other remedy which may be available to it, may enter the Premises upon reasonable advance notice to Tenant and any applicable Subtenant and perform such maintenance or repair, as the City determines, in its sole and absolute discretion, is required. |
(b) |
Except as expressly provided otherwise in this Lease, the City has the rights set forth below, each of which the City may exercise with notice to Tenant and without liability to Tenant or its Subtenants for damage or injury to property, persons or business on account of exercising them (unless such damage is determined to be due to the intentional tortuous act or willful misconduct of the City); the City’s exercise of any such rights is not deemed to constitute a breach of this Lease or a disturbance of Tenant’s or its Subtenant’s use or possession of the Premises; the City’s exercise does not give rise to any claim, including for set-off or abatement of Rent; the City’s exercise also does not relieve Tenant of any obligation to pay all Rent when due. The rights include the rights to: |
(i) |
Install, affix and maintain any and all signs on the exterior and on the interior of the Terminal; |
(ii) |
Decorate or to make repairs, inspections, alterations, additions, or improvements, whether structural or otherwise, in and about the Terminal, or any part of them, and for such purposes to enter upon the Premises, and during the continuance of any of the work, to temporarily close doors, entryways, public space and corridors in the Terminal, and to interrupt or temporarily suspend services or use of facilities, all without affecting any of Tenant’s obligations under this Lease, so long as the Premises is reasonably accessible and usable; |
(iii) |
Require Tenant or its Subtenants to furnish the City door keys for the entry doors of the Premises or any portion thereof, where applicable, and to retain them at all times, and to use in appropriate instances, keys, including master keys and passkeys, to all doors within and into the Premises or any portion thereof, but the keys will at all times be kept under adequate and appropriate security by the Commissioner. Tenant and its Subtenants must purchase only from the City additional duplicate keys as required, and must not change any locks, nor affix locks on doors without the prior written consent of the Commissioner. |
Notwithstanding the provisions for the City’s access to the Premises or any portion thereof Premises, Tenant releases and shall cause its Subtenants to release the City from all responsibility arising out of theft, robbery, pilferage and personal assault unless the same results from the City’s negligence or willful misconduct.
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Upon the expiration of the Term of this Lease or Tenant’s or its Subtenant’s right to possession of the Premises or any portion thereof, Tenant must return and cause its Subtenants to return all keys to the Commissioner and must disclose to the Commissioner the combination of any safes, cabinets or vaults left in the Premises;
(iv) |
Approve the weight, size and location of safes, vaults and other heavy equipment and articles in and about the Premises and the Terminal so as not to exceed the legal load per square foot designated by the structural engineers for the Terminal, and to require all such items and furniture and similar items to be moved into or out of the Terminal and the Premises only at the times and in the manner as the Commissioner directs in writing. Tenant or its Subtenants must not install or operate machinery or any mechanical devices of a nature not directly related to Tenant’s or its Subtenant’s ordinary use of the Premises without the prior written consent of the Commissioner. Movements of Tenant’s or any Subtenant’s property into or out of the Terminal or the Premises and within the Terminal is entirely at the risk and responsibility of Tenant or its Subtenants, and shall be in accordance with the requirements of the TDCMP, the TDCMP Process and the Airport Concession Program Handbook; |
(v) |
Establish controls for the purpose of regulating all property and packages, both personal and otherwise, to be moved into or out of the Terminal and the Premises; |
(vi) |
Regulate delivery and service of supplies and the usage of the apron area, loading docks, receiving areas and freight elevators and designate the times within which, and the locations at which, deliveries may be made to or by Tenant or its Subtenants; |
(vii) |
Show the Premises to prospective tenants at reasonable times during the final Lease Year or upon earlier termination of this Lease and, if any portion of the Premises is vacated or abandoned, prepare such portion of the Premises for re-occupancy; |
(viii) |
Erect, use and maintain pipes, ducts, wiring and conduits, and appurtenances to them, in and through the Premises at reasonable locations which do not materially impact Tenant’s and its Subtenants use and possession of the Premises or materially interfere with the conduct of business in the Concession Premises; |
(ix) |
Enter the Premises for the purpose of periodic inspection for fire protection, maintenance and compliance with the terms of this Lease and exercise any rights granted to it in this Lease; except in the case of emergency, however, the right must be exercised upon reasonable prior notice to Tenant and with an opportunity for Tenant or its Subtenants to have an employee or agent present; |
(x) |
Grant to any person the right to conduct any business or render any service in or to the Terminal for the types of concessions permitted in the Concession Program under Article 6, except as may otherwise be provided in this Lease. |
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(xi) |
Promulgate from time to time rules and regulations regarding the operations at the Airport; |
(xii) |
City reserves the right to perform any fire suppression system work and charge the Tenant for the actual and reasonable cost thereof and specify charges as Additional Rent under this Lease or to approve Tenant’s proposed contractor, at the City’s sole option. Tenant may pass through any such charges to any applicable Subtenants as part of the Operating Costs. |
(xiii) |
Maintain newspaper vending machines at any location in the Airport. |
8.17 |
Visual Rights Act. |
(a)Tenant and its Subtenants will cause any artist who creates artwork for the Premises or a Subtenant Premises, as the case may be, to waive any and all rights in the artwork that may be granted or conferred on any work of visual art (the “Artwork”) under Section 106A and Section 113 of the United States Copyright Act, (17 U.S.C. § 101 et seq.) (the “Copyright Act”). The waiver must include, but is not limited to, the right to prevent the removal, storage, relocation, reinstallation, or transfer of the Artwork. Tenant or its Subtenants shall acknowledge and will cause the artist to acknowledge that such removal, storage, relocation, reinstallation or transfer of the Artwork may result in the destruction, distortion, mutilation or other modification of the Artwork. Further, the Tenant or its Subtenants shall acknowledge and consent and will cause the artist to acknowledge and consent that the Artwork may be incorporated or made part of a building or other structure in such a way that removing, storing, relocating, reinstalling or transferring the Artwork will cause the destruction, distortion, mutilation or other modification of the Artwork.
(b)Tenant represents and warrants, and shall cause each Subtenant to represent and warrant, that such Tenant or its Subtenants will obtain a waiver of Section 106A and Section 113 of the Copyright Act as necessary from any employees and subcontractors, or any other artists. Tenant or its Subtenants, as the case may be, must provide City with copies of any such waivers required by Section 106A and Section 113 of the Copyright Act prior to installation of any Artwork in the Premises or any Subtenant Premises.
8.18 |
Casualty and Restoration. |
(a)Insubstantial Damage. If Tenant’s Base Building Improvements or Subtenant’s Fixed Improvements to any of the Premises are damaged, in whole or in part, by fire or casualty, and there is no Major Damage (as defined below) to the portion of the Terminal served by the damaged Tenant Base Building Improvements or Subtenant’s Fixed Improvements, then the Commissioner must repair any damage to the Shell and Core at the City’s expense, and Tenant must repair the damage to Tenant’s Base Building Improvements as soon as reasonably possible (after completion of the Shell and Core) at Tenant’s expense and Subtenant must repair the damage to the Subtenant Fixed Improvements as soon as reasonably possible (after completion of the Tenant Base Building Improvements) at Subtenant’s expense.
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(b)Major Damage.
(i)“Major Damage” means any damage or destruction that, based on reasonable estimates made by the Department within sixty (60) days after the occurrence of the damage or destruction, in order to be repaired to the condition existing before the damage or destruction:
a.would cost, with respect to the Improvements, in excess of fifty percent (50%) of the replacement cost value of all Improvements; or, if within the last five (5) years of the Term, in excess of twenty-five percent (25%) of such replacement cost; and
b.would cost, with respect to the Shell and Core, in excess of fifty percent (50%) of the replacement cost of the Shell and Core, or would require, in the sole judgment of the Commissioner, more than nine (9) months to complete.
(ii)If any part of the Terminal suffers Major Damage, whether or not including any portion of the Premises located in them, in whole or in part by fire or other casualty, the Commissioner has the right, for a period of six (6) months starting on the date of the occurrence, to elect not to repair the Major Damage as otherwise required under this Section, by giving written notice of the election to Tenant. If the Commissioner notifies Tenant of the Commissioner’s election not to repair the Major Damage, this Lease will terminate as to the affected Premises effective as of the date of the Major Damage, all Rent due under this Lease must be prorated to the date of termination, and Tenant must surrender the affected portion of the Premises to the City.
(iii)If any portion of the Premises suffers Major Damage, and if after the occurrence of the damage the Lease is not terminated, the Commissioner and the Airport architect will estimate the cost of restoration and the length of time that will be required to repair the damage and will notify Tenant of the estimate. If sufficient insurance proceeds are available to repair the damage and the damage can be repaired and the Improvements restored before the Term expires, then Tenant or its Subtenants, as the case may be, may elect to repair the damage and restore the Improvements. If Tenant determines in its reasonable business judgment not to elect to perform the repair and restoration, then Tenant shall pay to the City all insurance proceeds received as a result if such Major Damage and then this Lease terminates as to the impacted portion of the Premises as of the date of the Major Damage. The City shall have the right to restore and thereafter lease any such locations to other third parties.
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(iv)If this Lease is not terminated in accordance with paragraphs (b)(ii) or (iii) and a casualty has damaged or destroyed any portion of the Shell and Core involving the Premises, the City will restore the Shell and Core to the condition existing on when possession was delivered by the City to Tenant, according to the original as-built plans and specifications. Upon completion of the City’s Shell and Core restoration work, if any, Tenant and Subtenant shall proceed to rebuild the Improvements as nearly as possible to the character of Improvements existing immediately before the occurrence.
(v)Before beginning to replace, repair, rebuild or restore Improvements, Tenant and its Subtenant must deliver to the Commissioner a report of an independent consultant acceptable to the Commissioner setting forth:
a.an estimate of the total cost of the Work;
b.the estimated date upon which the Work will be substantially completed; and
c.a statement to the effect that insurance proceeds are projected to be sufficient to pay the costs of the Work.
(vi)The Commissioner will use commercially reasonable efforts to provide suitable temporary Relocation Space during the period of restoration subject to the reasonable approval of Tenant or its Subtenants. Tenant or its Subtenants must relocate impacted operations to the temporary Relocation Space, and the costs associated with any such relocation, including moving expenses and the cost of reconstructing the Improvements in the temporary Relocation Space, shall be borne by Tenant and its Subtenants but only to the extent insurance covers any such costs.
(c)Tenant’s Option. If the Concession Premises or a portion of it is subject to Major Damage during the final three (3) years of the Term, Tenant has the right, for a period of sixty (60) days beginning on the date of the occurrence, to elect not to restore the affected Improvements as otherwise required under this Lease by giving the Commissioner written notice of the election, in which event this Lease will, as to the portion of the Premises, terminate upon the notice. If Tenant desires to rebuild the affected Premises, it may do so only upon the written approval of the Commissioner. If approved, Tenant will receive the unamortized Improvement Cost of the restoration upon termination or expiration of the Term, with amortization being calculated on a straight-line basis over a period of time equivalent to the original Term.
(d)Insufficient Insurance. In no event will the City, Tenant or any of its Subtenants be obligated to repair, alter, replace, restore, or rebuild any Improvements, or any portion of them, nor to pay any of the costs or expenses for them. If available insurance proceeds are not sufficient to cover the cost of the restoration as required under this Article 8, then this Lease shall terminate with respect to the portion of the Premise so damaged.
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ARTICLE 9
UTILITIES
9.1 |
Utilities to Premises. |
(a)The City shall allow Tenant and its Subtenants access to the various base building utility systems as they exist in the Terminal for those types of utilities which are necessary for the operation of the Concession Program. These include natural gas, water, sewage, telephone and data transmission and electricity. The amount and capacity of the various utilities for each of the New Concession Premises which the City shall provide is as set forth on the utilities matrix attached hereto as Exhibit N.
(b)Tenant or its Subtenants must pay for natural gas, water, sewage, telephone and data transmission and electricity furnished to the Premises, and Subtenants will be required to install separate meters or check meters in the Subtenant Premises to properly measure the consumption of all utilities. All other utilities shall be provided without charge to the Tenant or its Subtenants.
(c)Tenant or its Subtenant must maintain utility lines to the Premises or Subtenant Premises as the case may be as follows:
(i) |
where the utility lines, including gas, electrical, telephone and data transmission, hot and cold water, fire sprinkler, gas, and sewer serve the Premises and other areas of the Terminal, Tenant or its Subtenants shall only be obligated to maintain those branch lines and facilities that are exclusively serving the Premises, whether located within or outside the Premises but only up to the connection point to the main lines or facilities; and |
(ii) |
where the utility lines are solely for the use of the Premises, Tenant or its Subtenants shall be obligated to maintain the utility lines from the Premises up to the main entry point to the Terminal. Alternatively, the City may, at the Commissioner’s sole discretion, maintain the lines and charge Tenant the reasonable cost of the maintenance. Tenant or its Subtenants must maintain all electrical cables, conduits, wiring, fire alarm systems, electrical panels and associated equipment exclusively serving the Premises. |
(d)Telephone/Telecommunications. The City shall have no obligation to provide telephone or data communication services to the Premises but shall provide Tenants and Subtenants access to such services as they exist within the Terminal.
9.2 |
Tenant’s Acts. Tenant shall not and shall not allow its Subtenants to do or permit to be done anything which may interfere with the effectiveness or accessibility of any drainage and sewerage system, water system, ventilation, air-conditioning and heating systems, communications systems, key card access systems, elevators and escalators, electrical system, fire-protection system, sprinkler system, alarm system, fire hydrants and hoses and other utility and other systems, if any, installed or located on, under, in or adjacent to the Premises now or in the future. |
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9.3 |
No Constructive Eviction. The City shall make diligent efforts to supply Tenant with utility services as specified above; however, if the City makes such diligent efforts but fails to provide said utility services, said failure shall not constitute a constructive eviction, and the City shall not be liable to Tenant in damages, nor shall Tenant be entitled to any reduction in Rent except as otherwise provided herein, or otherwise: (i) if any utility shall become unavailable from any public utility company, public authority or any other Person or entity supplying or distributing such utility, or (ii) for any interruption in any service hereunder (including, without limitation, any heating, ventilation or air-conditioning) caused by the making of any necessary repairs or improvements, or (iii) by any cause beyond the reasonable control of the City which is not attributable solely to the negligence or willful misconduct of the City. In no event shall the City be liable to Tenant for indirect or consequential damages. |
9.4 |
Energy Conservation. The City shall have the right to institute such policies, programs and measures as may be reasonably necessary or desirable, in the City’s discretion, for the conservation and/or preservation of energy or energy related services, or as may be required to comply with any applicable codes, rules and regulations, whether mandatory or voluntary. |
ARTICLE 10
ENVIRONMENTAL
10.1 |
Environmental Laws. Tenant shall observe, obey and cause its Subtenants, employees, agents, Contractors, and licensees to observe and obey all applicable Environmental Laws. |
10.2 |
Hazardous Substances. Tenant must not use or allow the Premises to be used for the release, storage, use, treatment, disposal or other handling of any hazardous substance, as defined in any Environmental Laws, except in full compliance with all Environmental Laws. Tenant must not use or allow the Premises to be used for the storage of any such hazardous substances except small amounts of cleaning fluids, business equipment materials (such as copy machine toner) and other small amounts of such hazardous substances customarily handled or used in connection with the concession operations, all of which must be stored and used in compliance with all applicable Environmental Laws. Upon the expiration or termination of this Lease, Tenant must surrender the Premises to the City free from the presence and contamination of any hazardous substances which were placed therein as a result of actions by Tenant or its Subtenants. |
10.3 |
Environmental Representations and Warranties. Tenant hereby represents and warrants to the City as follows: |
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(a)Except as may be permitted by and only in compliance with applicable laws, including, without limitation Environmental Laws, Tenant shall not allow any Hazardous Materials to exist or be stored, located, discharged, possessed, managed, processed, or otherwise handled on the Premises, and shall strictly comply with and cause its Subtenants to strictly comply with all Environmental Laws affecting the Premises, including, without limitation, those laws regarding the generation, storage, disposal, release and discharge of Hazardous Materials. Without limiting the generality of the foregoing, Tenant has not been, is not, and will not become involved in or allow its Subtenants to become involved in operations at the Premises involving Hazardous Materials, except as expressly permitted by and only in compliance with applicable Environmental Laws. Tenant expressly warrants, represents and covenants that Tenant, its Subtenants, employees, agents, Contractors, and licensees shall strictly comply with the requirements of all Environmental Laws affecting the Premises and shall immediately notify the City of any release or threat of release of Hazardous Materials at, upon, under or within the Premises.
(b)No activity shall be undertaken on the Premises that would cause (i) the Premises to be considered a hazardous waste treatment, storage or disposal facility as defined under any Environmental Laws; (ii) a release or threatened release of Hazardous Materials into any watercourse, surface or subsurface water or wetlands; or (iii) the discharge into the environment of any Hazardous Materials in each case requiring a permit under any Environmental Laws and for which no such permit has been issued.
(c)Tenant shall immediately notify the City in writing of (i) any release or threatened release of Hazardous Materials or the occurrence of any other environmental problem or liability with respect to the Premises which could subject Tenant or the Premises to a claim under any Environmental Laws or to any restriction in ownership, occupancy, transferability or use of the Premises under any Environmental Laws; (ii) any lien filed, action taken or notice given of the nature described in subparagraph (b) above; (iii) any notice given to Tenant from any Subtenant or other occupant of the Premises authorized by the City pursuant to the terms of this Lease or any notice from any governmental authority with respect to any release or threatened release of Hazardous Materials; or (iv) the commencement of any litigation or any information relating to any threat of litigation relating to any alleged unauthorized release of any Hazardous Materials or other environmental contamination, liability or problem caused by Tenant or its Subtenants with respect to or arising out of or in connection with the Premises.
(d)Tenant shall not be responsible or liable in any manner to the City or otherwise for any remediation or removal of any Existing Contamination or for the release or threatened release of any Hazardous Materials (whether located within the Premises or elsewhere) unless such release or threatened release of Hazardous Materials is caused by the action, omission to act, negligence or willful misconduct of Tenant, its Subtenants and their respective agents, employees, Contractors or licensees.
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10.4 |
Notices. Tenant shall provide the City with copies of any notices of release of Hazardous Materials which are given by or on behalf of Tenant or any Subtenant to any federal, state or local agencies or authorities with respect to the Premises in accordance with Article 18. Such copies shall be sent to the City concurrently with their being mailed or delivered to the governmental agencies or authorities. Tenant also shall provide the City with copies of any notices of responsibility or any other notices received by or on behalf of Tenant or any Subtenant from any such agencies or authorities concerning any non-compliance with Environmental Laws on or about the Premises, including but not limited to notices regarding Hazardous Materials or substances located on or about the Premises. In addition, in connection with any litigation or threat of litigation affecting the Premises, Tenant shall deliver to the City any documentation or records as the City may reasonably request in connection with all such notices, inquiries and communications, and shall give written notice to the City of any subsequent developments. |
10.5 |
No Illegal Dumping. In accordance with Section 11-4-1600(e) of the Municipal Code of Chicago, Tenant warrants and represents that it has not violated and is not in violation of the following sections of the Municipal Code (collectively, the “Waste Sections”): |
7-28-390 Dumping on public way-Violation-Penalty; 7-28-440 Dumping on real estate without permit;
11-4-1410 Disposal in waters prohibited;
11-4-1420 Ballast tank, bilge tank or other discharge;
11-4-1450 Gas manufacturing residue;
11-4-1500 Treatment and disposal of solid or liquid waste;
11-4-1530 Compliance with rules and regulations required;
11-4-1550 Operational requirements;
11-4-1560 Screening requirements; and
any other sections listed in Section 11-4-1600(e), as it may be amended from time to time.
During the period while this Lease is executory, Tenant’s violation of the Waste Sections, whether or not relating to the performance of this Lease constitutes a breach of and an Event of Default under this Lease, for which the opportunity to cure, if curable, will be granted only at the sole discretion of the Commissioner. Such breach and Event of Default entitles the City to all remedies under the Lease, at law or in equity. This Section does not limit the Tenant’s duty to comply with all Environmental Laws, in effect now or later, and whether or not they appear in this Lease. Non-compliance with these terms and conditions may be used by the City as grounds for the termination of this Lease, and may further affect the Tenant’s eligibility for future City agreements.
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10.6 |
Sustainable Airport Practices. The City encourages Tenant and its Subtenants to incorporate sustainable design practices in the redevelopment of the Terminal’s Concession Program. The Sustainable Airport Manual attached hereto as Exhibit O (“SAM”) should be considered in every aspect of the Redevelopment and concession operations. Tenant and Subtenants should include a LEED (Leadership in Energy and Environmental Design) accredited professional on their respective design teams and should consider as part of their main objectives for sustainable design to avoid resource depletion of energy, water, and raw materials; prevent environmental degradation caused by facilities and infrastructure throughout their life cycle; and create built environments that are comfortable, safe and productive. Subtenants shall be encouraged to use recycled or recyclable materials for the packaging of products sold at the Airport. This shall include bags and boxes that are provided to customers at the time of sale. Further, Subtenants are encouraged to use recycled or recyclable materials for the pre-packaging of products and any temporary display materials used at the Airport. |
ARTICLE 11
INSURANCE AND INDEMNITY
11.1 |
Tenant’s and Subtenants’ Insurance. |
Tenant shall, and shall cause its Subtenants to, at their respective sole expense, procure and maintain at all times during the Term of this Lease, and during any time period following expiration or termination of this Lease during which Tenant or Subtenant is holding over or Tenant is required to return to the Premises for any reason whatsoever, the types of insurance set forth in Exhibit P covering all operations under this Lease, with insurance companies authorized to do business in the State of Illinois.
11.2 |
Indemnification. |
(a)Except where this indemnity clause would be found to be inoperative or unenforceable under the Construction Contract Indemnification for Negligence Act, 740 ILCS 35/0.01 et seq. (“Anti-Indemnity Act”), Tenant must defend, indemnify, keep and hold harmless the City, its officers, representatives, elected and appointed officials, agents and employees, from and against any and all Losses, except for any Losses which are the result of the negligence or willful misconduct of the City, its employees, agents, contractors and subcontractors.
(b)“Losses” means, individually and collectively, liabilities of every kind, including losses, damages, and reasonable costs, payments and expenses (such as, but not limited to, court costs and reasonable attorneys’ fees and disbursements), claims, demands, actions, suits, proceedings, judgments or settlements, any or all of which in any way arise out of or relate to the acts or omissions of Tenant, its Subtenants and their respective employees, agents, and Contractors.
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(c)At the City Corporation Counsel’s option, Tenant shall defend all suits brought upon all such Losses and must pay all costs and expenses incidental to them, but the City has the right, at its option, to participate, at its own cost, in the defense of any suit, without relieving Tenant of the foregoing indemnity obligations under this Section. Tenant must not make any settlement without the prior written consent to it by the City Corporation Counsel if the settlement requires any action on the part of the City or in any way involving the Airport.
(d)To the extent permissible by law, Tenant waives any limits to the amount of its obligations to indemnify, defend or contribute to any sums due under any Losses, including any claim by any employee of Tenant that may be subject to the Workers’ Compensation Act, 820 ILCS 305/1 et seq or any other related law or judicial decision (such as, Kotecki v. Cyclops Welding Corporation, 146 Ill. 2d 155 (1991)). The waiver, however, does not require Tenant to indemnify the City for the City’s own negligence or willful misconduct. The City, however, does not waive any limitations it may have on its liability under the Worker’s Compensation Act or under the Illinois Pension Code.
(e)The indemnities contained in this Section survive the expiration or earlier termination of this Lease, for matters occurring or arising during the Term of this Lease or as the result of or during the holding over of Tenant beyond the Term. Tenant acknowledges that the requirements set forth in this Section to indemnify, keep and save harmless and defend the City are apart from and not limited by the Tenant’s duties under this Lease, including the insurance and Security requirements.
ARTICLE 12
COMPLIANCE WITH LAWS
12.1 |
Compliance with Laws. Tenant shall, and shall cause its Subtenants, at all times observe and comply with all applicable laws, statutes, ordinances, rules, regulations, court orders and executive or administrative orders and directives of the federal, state and local government, now existing or later in effect (whether or not the law also requires compliance by other parties), including the Americans with Disabilities Act and Environmental Laws, that may in any manner affect the performance of this Lease (collectively, “Laws”), and must not use the Premises, or allow the Premises to be used, in violation of any Laws or in any manner that would impose liability on the City, Tenant or the Subtenants under any Laws. Tenant must notify the City within ten (10) days of receiving notice from a competent governmental authority that Tenant, its Subtenants or any of their respective Contractors may have violated any Laws. Provisions required by any Law to be inserted in this Lease are deemed inserted in this Lease whether or not they appear in this Lease or, upon application by either party, this Lease will be amended to make the insertion; however, in no event will the failure to insert the provisions before or after this Lease is signed prevent its enforcement. Without limiting the foregoing, Tenant covenants that it will comply with all Laws, including but not limited to those Laws identified in this Article 12. |
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12.2 |
Economic Disclosure Statements and Affidavits. In connection with Section 2-92-320 of the Municipal Code, Tenant has executed an Economic Disclosure Statement and Affidavit which is attached to this Lease as Exhibit H and which contains a certification as required under the Illinois Criminal Code, 720 ILCS 5/33E, and under the Illinois Municipal Code, 65 ILCS 5/8-10-1 et seq. Ineligibility under Section 2-92-320 of the Municipal Code continues for 3 years following any conviction or admission of a violation of Section 2-92-320. For purposes of Section 2-92-320, when an official, agent or employee of a business entity has committed any offense under the section on behalf of such an entity and under the direction or authorization of a responsible official of the entity, the business entity is chargeable with the conduct. If, after Tenant and any Subtenant enters into a contractual relationship with a Contractor, it is determined that the contractual relationship is in violation of this subsection, Tenant and its Subtenant, if applicable, must immediately cease to use the Contractor. All Contracts must provide that Tenant is entitled to recover all payments made by it to the Contractor if, before or subsequent to the beginning of the contractual relationship, the use of the Contractor would be violative of this Section. |
12.3 |
Inspector General and Legislative Inspector General. It is the duty of Tenant and all officers, directors, agents, partners, and employees of Tenant to cooperate with the Inspector General and the Legislative Inspector General of the City in any investigation or hearing undertaken under Chapter 2-55 or Chapter 2-56 of the Municipal Code. Tenant understands and will abide by all provisions of Chapter 2-55 and Chapter 2-56 of the Municipal Code. Tenant must inform all Subtenants and Contractors of this provision and require under each Sublease and Contract compliance herewith by each Subtenant and Contractor all of their respective officers, directors, agents, partners and employees. |
12.4 |
Section 2-92-586 of the Municipal Code. The City encourages Tenant to use Contractors that are firms owned or operated by individuals with disabilities, as defined by Section 2-92-586 of the Municipal Code of the City of Chicago, where not otherwise prohibited by federal or state law. |
12.5 |
Airport Security. |
(a)This Lease is expressly subject to the airport security requirements of Title 49 of the United States Code, Chapter 449, as amended (“Airport Security Act”), the provisions of which govern airport security, including the rules and regulations promulgated under it. Tenant is subject to, and further must conduct with respect to its Contractors and the respective employees of each, such employment investigations, including criminal history record checks, as the Commissioner, the TSA or the FAA may deem necessary. Further, in the event of any threat to civil aviation, as defined in the Airport Security Act, Tenant must promptly report any known information in accordance with those regulations promulgated by the United States Department of Transportation, the TSA and by the City. Tenant must, notwithstanding anything contained in this Lease to the contrary, at no additional cost to the City, perform under this Lease in compliance with those guidelines developed by the City, the TSA and the FAA with the objective of maximum security enhancement. The drawings, plans, and specifications provided by Tenant and its Subtenants under this Lease must comply with those guidelines for airport security developed by the City, the TSA and the FAA and in effect at the time of their submission.
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(b)Further, Tenant shall comply with, and require compliance by its Contractors, suppliers of materials and furnishers of services and employees with all present and future laws, rules, regulations, or ordinances promulgated by the City, the TSA or the FAA, or other governmental agencies to protect the security and integrity of the Airport, and to protect against access by unauthorized persons. Tenant shall adopt procedures to control and limit access to the Airport and the Premises by Tenant and its Contractors, suppliers of materials and furnishers of services, employees, in accordance with all present and future City, TSA and FAA laws, rules, regulations, and ordinances. At all times during the Term, Tenant must have in place and in operation a security program for the Premises that complies with all applicable laws and regulations.
(c)Gates and doors located on the Premises, if any, that permit entry into restricted areas at the Airport must be kept locked by Tenant or its Subtenants at all times when not in use. Gate or door malfunctions must be reported to the Commissioner or the Commissioner’s designee without delay and must be kept under constant surveillance by Tenant or the applicable Subtenant, as the case may be, until the malfunction is remedied.
(d)In connection with the implementation of its security program, Tenant may receive, gain access to or otherwise obtain certain knowledge and information related to the City’s overall Airport security program. Tenant acknowledges that all such knowledge and information is of a highly confidential nature. Tenant covenants that no person will be permitted to gain access to such knowledge and information, unless the person has been approved by the Commissioner in advance in writing.
(e)To the extent any of Tenant’s employees require identification badges or security clearance for access at the Terminal, Tenant shall be responsible at its expense for securing such badges or clearance. Tenant will cause Subtenants to be similarly responsible for their personnel under the Subleases, and will monitor compliance by Subtenants with required badging and security clearances and the screening of Subtenant goods, products, equipment, materials and supplies to the extent required in the Terminal. Subtenants will deliver any badge applications for Subtenant employees to Tenant which shall forward them to the Department. Tenant will apply fines, penalties or default remedies under Subleases as required to remedy violations or other deficiencies by Subtenants, but shall not have any other responsibility or liability with respect to security issues relating to such Subtenant employee badging and security clearance requirements and the screening of any such Subtenant goods, products, equipment materials and supplies. Subtenants shall be billed directly by the City for all costs for such badging of personnel and security clearances. The City acknowledges that Tenant has no obligation to conduct screening or inspection of goods, products, equipment, materials or supplies brought to the Terminal, Premises or Airport by or on behalf of Subtenants.
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(f)Tenant further must indemnify, hold harmless and defend the City from and against any and all claims, reasonable costs, reasonable expenses, damages and liabilities, including all reasonable attorney’s fees and costs, resulting directly from the breach of Tenant’s covenants and agreements as set forth in this Section.
12.6 |
Prohibition on Certain Contributions (Mayoral Executive Order No. 2011-4). |
(1)Tenant, any person or entity who directly or indirectly has an ownership or beneficial interest in Tenant of more than 7.5 percent (“Owners”), spouses and domestic partners of such Owners, Tenant’s Contractors, any person or entity who directly or indirectly has an ownership or beneficial interest in any Contractor of more than 7.5 percent (“Sub-owners”) and spouses and domestic partners of such Sub-owners (Tenant and all the other preceding classes of persons and entities are together, the “Identified Parties”), shall not make a contribution of any amount to the Mayor of the City of Chicago (the “Mayor”) or to his political fund-raising committee (i) after execution of this bid, proposal or Agreement by Tenant, (ii) while this Lease or any Other Contract is executory, (iii) during the term of this Lease or any Other Contract between Tenant and the City, or (iv) during any period while an extension of this Lease or any Other Contract is being sought or negotiated.
(2)Tenant represents and warrants that since the date of public advertisement of the specification, request for qualifications, request for proposals or request for information (or any combination of those requests) or, if not competitively procured, from the date the City approached the Tenant or the date the Tenant approached the City, as applicable, regarding the formulation of this Lease, no Identified Parties have made a contribution of any amount to the Mayor or to his political fund-raising committee.
(3)Tenant agrees that it shall not: (a) coerce, compel or intimidate its employees to make a contribution of any amount to the Mayor or to the Mayor’s political fund-raising committee; (b) reimburse its employees for a contribution of any amount made to the Mayor or to the Mayor’s political fund-raising committee; or (c) bundle or solicit others to bundle contributions to the Mayor or to his political fund-raising committee.
(4)Tenant agrees that the Identified Parties must not engage in any conduct whatsoever designed to intentionally violate this provision or Mayoral Executive Order No. 2011-4 or to entice, direct or solicit others to intentionally violate this provision or Mayoral Executive Order No. 2011-4.
(5)Tenant agrees that a violation of, non-compliance with, misrepresentation with respect to, or breach of any covenant or warranty under this provision or violation of Mayoral Executive Order No. 2011-4 constitutes a breach and default under this Lease, and under any Other Contract for which no opportunity to cure will be granted. Such breach and default entitles the City to all remedies (including without limitation termination for default) under this Lease, under Other Contract, at law and in equity. This provision amends any Other Contract and supersedes any inconsistent provision contained therein.
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(6)If Tenant violates this provision or Mayoral Executive Order No. 2011-4 prior to award of the Agreement resulting from this specification, the Chief Procurement Officer may reject Tenant’s bid.
(7)For purposes of this provision:
“Bundle” means to collect contributions from more than one source which are then delivered by one person to the Mayor or to his political fund-raising committee.
“Other Contract” means any other agreement with the City of Chicago to which Tenant is a party that is (i) formed under the authority of chapter 2-92 of the Municipal Code of Chicago; (ii) entered into for the purchase or lease of real or personal property; or (iii) for materials, supplies, equipment or services which are approved or authorized by the city council.
“Contribution” means a “political contribution” as defined in Chapter 2-156 of the Municipal Code of Chicago, as amended.
Individuals are “Domestic Partners” if they satisfy the following criteria: (a) they are each other’s sole domestic partner, responsible for each other’s common welfare; and (b) neither party is married; and (c) the partners are not related by blood closer than would bar marriage in the State of Illinois; and (d)each partner is at least 18 years of age, and the partners are the same sex, and the partners reside at the same residence; and (e) two of the following four conditions exist for the partners: (i) The partners have been residing together for at least 12 months; (ii) The partners have common or joint ownership of a residence; (iii) The partners have at least two of the following arrangements: a joint ownership of a motor vehicle; b. a joint credit account; c. a joint checking account; d. a lease for a residence identifying both domestic partners as Tenants; (iv) Each partner identifies the other partner as a primary beneficiary in a will.
“Political fund-raising committee” means a “political fund-raising committee” as defined in Chapter 2-156 of the Municipal Code of Chicago, as amended.
12.7 |
City Ethics Ordinance. Tenant covenants that no payment, gratuity or offer of employment must be made in connection with this Lease by or on behalf of any Contractors or higher tier Contractors or anyone associated with them as an inducement for the award of a Subcontract or order; and Tenant further acknowledges that any agreement entered into, negotiated or performed in violation of any of the provisions of Chapter 2-156 of the Municipal Code is voidable as to the City. |
12.8 |
Business Relations with Elected Officials. Pursuant to Section 2-156-030(b) of the Municipal Code, it is illegal for any elected official of the city, or any person acting at the direction of such official, to contact, either orally or in writing, any other city official or employee with respect to any matter involving any person with whom the elected official has a business relationship, or to participate in any discussion in any city council committee hearing or in any city council meeting or to vote on any matter involving the person with whom an elected official has a business relationship. Violation of §2-156-030(b) by any elected official with respect to this Lease is grounds for termination of this Lease. Section 2-156-080 defines a “business relationship” as any contractual or other private business dealing of an official, or his or her spouse, or of any entity in which an official or his or her spouse has a financial interest, with a person or entity which entitles an official to compensation or payment in the amount of $2,500 or more in a calendar year; provided, however, a financial interest will not include: (1) any ownership through purchase at fair market value or inheritance of less than one percent of the share of a corporation, or any corporate subsidiary, parent or affiliate thereof, regardless of the value of or dividends on such shares, if such shares are registered on a securities exchange pursuant to the Securities Exchange Act of 1934, as amended; (2) the authorized compensation paid to an official or employee for his office or employment; (3) any economic benefit provided equally to all residents of the city; (4) a time or demand deposit in a financial institution; or (5) an endowment or insurance policy or annuity contract purchased from an insurance company. A ‘“contractual or other private business dealing” will not include any employment relationship of an official’s spouse with an entity when such spouse has no discretion concerning or input relating to the relationship between that entity and the City. |
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12.9 |
Eligibility to do Business with the City. Failure by the Tenant or any controlling person (as defined in Section 1-23-010 of the Municipal Code of Chicago) thereof to maintain eligibility to do business with the City of Chicago as required by Section 1-23-030 of the Municipal Code of Chicago shall be grounds for termination of this Lease. |
12.10 |
Office of Compliance. It is the duty of Tenant, and all officers, directors, agents, partners and employees of Tenant to cooperate with the Office of Compliance in any investigation or audit pursuant to Chapter 2-26 of the Municipal Code of Chicago. Tenant understands and will abide by all provisions of Chapter 2-26 of the Municipal Code of Chicago. All Subleases will inform Subtenants and all Contracts will inform Contractors of this provision and require understanding and compliance with it. |
ARTICLE 13
RETAINED RIGHTS OF CITY
13.1 |
Right to Enter, Inspect and Repair. The City, its authorized employees, agents, contractors, subcontractors and other representatives shall have the right upon forty-eight (48) hours prior notice to Tenant, which notice may be verbal followed by confirming written notice (except in the case of emergency as determined by the City when no notice shall be required), to enter upon the Premises without abatement of Rent, for the following purposes: |
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(a)To inspect the Premises during regular business hours upon reasonable advance notice (or at any time in the case of emergency, in which case no notice shall be required) to ascertain the condition of the Premises and to determine Tenant’s compliance with the terms of this Lease. The right of inspection shall impose on the City no duty to inspect and shall impart no liability upon the City for failure to inspect.
(b)To perform any obligation, to perform maintenance and make repairs and replacements in any event where Tenant is obligated to do so under this Lease and has failed to perform such obligation following any applicable notice and cure periods provided for in this Lease or to initiate such repairs and maintenance within the time periods provided for in this Lease, if applicable, or, if no time period is provided, within thirty (30) days after written notice from the City, and thereafter to diligently complete such obligations, repairs or replacements, or at any time with or without written notice, in the event that the City, in its sole discretion, deems that it is necessary or prudent to do so to preserve all or any part of the Terminal from damage or to correct any condition likely to lead to injury or damage.
(c)To perform any obligation of the City under this Lease and to make additions, alterations, maintenance and repairs to the Terminal and any other areas on the Airport.
In the event such entry is made during non-operating hours, a representative of Tenant or a representative of Tenant’s applicable Subtenant shall be present, except the case of an emergency when no such representatives shall be required to be present. Nothing contained in this Section shall prohibit, or diminish the right of, the City to enter the Premises at any time and conduct, without notice to Tenant or any Subtenant, inspections or audits as set forth in Article 7 of this Lease to determine any Subtenant’s compliance with the Service and Perfomiance Operating Standards as set forth in Article 7 of this Lease.
13.2 |
Accommodation of Airport Construction. |
(a)Tenant acknowledges that from time to time the City may undertake construction, repair or other activities related to the operation, maintenance and repair of the Terminal or the Airport that will require temporary accommodation by Tenant and its Subtenants. In addition, the City reserves the right to permanently reconfigure the Common Areas and the Premises as necessary to accommodate the construction of connections from the Terminal to other terminals or facilities at the Airport or relocate or reconfigure the Terminal Gates and Ramp Area. The City agrees to use reasonable efforts to minimize disruption in Tenant’s and its Subtenants’ business operations during such period of construction. Without limiting the generality of the foregoing, the City may temporarily or permanently close, alter, change, modify and/or relocate any entrances, passageways, doors and doorways, corridors, elevators, escalators or other parts of the Common Areas or the Terminal (other than the Premises); and the City may at any time and from time to time make such changes, alterations, additions, improvements, repairs or replacements in or to the Terminal, as well as in or to the entrances, passages, elevators, escalators, and stairways thereof; as it may deem necessary or desirable, and to change the arrangement and/or location of entrances, passageways, doors and doorways, and corridors, elevators, stairs, rest rooms, or other public parts of the Common Areas or the Terminal (other than the Premises), and may stop or interrupt any service or utility system, when necessary by reason of accident or emergency or construction work until the necessity for the interruption or stoppage has ended. The City will endeavor to give Tenant advance notice of such work whenever possible (except in the case of an emergency, in which case no notice shall be required).
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(b)Tenant further acknowledges that such improvements may require substantial construction work in the Terminal during normal business hours, which may disrupt Tenant’s and its Subtenant’s business operations and create noise, dust and other concomitants of construction work. Tenant agrees that it shall have no right except as expressly provided herewith, to any abatement of Rent, Additional Rent or other compensation or to any claim of breach of the City’s covenant of quiet enjoyment (express or implied) or an actual or constructive eviction or for loss of business or inconvenience, or in any event for consequential damages on account of any such construction work, and without incurring any liability to Tenant or otherwise affecting Tenant’s obligations under this Lease. Tenant agrees to accommodate and shall cause its Subtenants to accommodate the City in such activities even though the Tenant’s and its Subtenants’ own operations may be inconvenienced or partially impaired.
(c)In the event the City elects to exercise its rights under this Section to close any portion of the Premises, it shall give Tenant not less than fifteen (15) days notice (except in the case of an emergency in which case no notice shall be required) of the City’s intent to temporarily close any portion of the Premises, which portion shall be described in such notice.
13.3 |
Status Report. Recognizing that the City may find it necessary to establish to third parties the then-current status of performance hereunder, Tenant shall, upon the request of the City from time to time, promptly furnish a statement of the status of any matter pertaining to this Lease. Without limiting the generality of the foregoing, Tenant specifically agrees, promptly upon the commencement of the Term hereof; to acknowledge to the City reasonable satisfaction of any requirements with respect to construction, except for such matters as Tenant may set forth specifically in said statement. |
13.4 |
Eminent Domain. Nothing in this Lease shall be construed to limit any of the City’s rights to acquire property by eminent domain. |
ARTICLE 14
FAA PROVISIONS
14.1 |
No Exclusive Rights. Nothing contained in this Lease must be construed to grant or authorize the granting of an exclusive right, including an exclusive right to provide aeronautical services to the public as prohibited by Section 308(a) of the Federal Aviation Act of 1958, as amended, and the City reserves the right to grant to others the privilege and right of conducting any one or all activities of an aeronautical nature. It is clearly understood by Tenant that no right or privilege has been granted that would operate to prevent any person, firm, or corporation operating aircraft on the Airport from performing any services on its own aircraft with its own regular employees (including maintenance and repair) that it may choose to perform. |
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14.2 |
Airport Landing Area. The City reserves the right to further develop or improve the landing area of the Airport as it sees fit, regardless of the desires or view of Tenant or its Subtenants, and without interference or hindrance. The City reserves the right, but is not obligated to, to maintain and keep in repair the landing area of the Airport and all publicly-owned facilities of the Airport, together with the right to direct and control all activities of Tenant and its Subtenants in this regard. |
14.3 |
No Obstructions. Tenant must comply with applicable notification and review requirements covered in Part 77 of the Federal Aviation Regulations if any future structure or building is planned for the Premises, or in the event of any planned modification or alteration of any present or future building or structure situated on the Premises. Tenant, by accepting the Lease, expressly agrees for itself, its successors and assigns that it will not erect nor permit the erection of any structure or object nor permit the growth of any tree on the Premises above the applicable mean sea level elevation set forth in Part 77 of the Federal Aviation Regulations. If the covenants contained herein are breached, the City serves the right to enter upon the Premises and to remove the offending structure or object and/or cut down the offending tree, all of which will be at the expense of Tenant. |
14.4 |
Avigation Easement. There is reserved to the City, its successors and assigns for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the Premises. This public right of flight includes the right to cause in the airspace any noise inherent in the operation of any aircraft used for navigation or flight through the airspace or landing at, taking off from, or operation on the Airport. Tenant by accepting this Lease agrees for itself, its Subtenants, its successors, and assigns that it will not make use of the Premises in any manner that might interfere with the landing and taking off of aircraft from Airport or otherwise constitute a hazard. If the covenants contained herein are breached, the City reserves the right to enter upon the Premises and cause the abatement of the interference at the expense of Tenant. |
14.5 |
National Emergency. This Lease and all the provisions of this Lease are subject to whatever right the United States Government now has or in the future may have or acquire affecting the control, operation, regulation, and taking over of the Airport, or the exclusive or non-exclusive use of the Airport by the United States during the time of war or national emergency. |
14.6 |
Airport Rules and Regulations. Tenant shall faithfully observe and comply, and shall cause its Subtenants to faithfully observe and comply, with any reasonable rules which the City may from time to time make provided that such rules apply to all similarly situated tenants, licensees or concessionaires, if any, and are related to the safety, care, appearance, reputation, operation or maintenance of the Airport, the Premises, the Terminal or the Common Areas or the comfort of tenants or others using such areas or facilities. The City shall uniformly enforce such rules and regulations as to all similarly-situated tenants. including Tenant and its Subtenants, but shall not have any duty or obligation to Tenant to enforce such rules or the terms and conditions in any other lease as against any other tenants and the City shall not be liable to Tenant for violations of the same by other tenants, their employees, contractors, agents or licensees. |
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ARTICLE 15
SPECIAL CONDITIONS
15.1 |
Warranties and Representations. In connection with the execution of this Lease, Tenant warrants and represents statements (a) through (k) below are true as of the Effective Date. If during the Term there is any change in circumstances that would cause a statement to be untrue, Tenant must promptly notify the Commissioner in writing. Failure to do so will constitute an Event of Default. Tenant shall incorporate any of the following provisions set forth in this Section which are applicable to Subtenants in all Subleases, contracts entered into with any suppliers of materials, furnishers of services, Contractors, or that may provide any materials, labor or services in connection with this Lease, such that the parties warrant, represent and covenant to Tenant as to the matters set forth in this Section. Tenant must cause its Subtenants and Contractors to execute those affidavits and certificates that may be necessary in furtherance of these provisions. The certifications must be attached and incorporated by reference in the applicable agreements. If any Subtenant or Contractor is a partnership or joint venture, Tenant must also include provisions in its Sublease or Subcontract insuring that the entities comprising the partnership or joint venture are jointly and severally liable for its obligations under it. |
(a)Tenant is financially solvent and Tenant holds itself to very high standards of quality and professionalism. Tenant is competent to perfonn as required under this Lease; this Lease is feasible of performance by Tenant in accordance with all of its provisions and requirements; Tenant has the full power and is legally authorized to perform or cause to be performed its obligations under this Lease under the terms and conditions stated in this Lease; and Tenant can and will perform, or cause to be performed, all of its obligations under this Lease in accordance with the provisions and requirements of this Lease.
(b)Tenant is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware; Tenant is qualified to do business in the State of Illinois; and Tenant has a valid current business privilege license to do business in the City, if required by applicable law.
(c)The person signing this Lease on behalf of Tenant has been duly authorized to do so by Tenant; all approvals or consents necessary in order for Tenant to execute and deliver this Lease have been obtained; and neither the execution and delivery of this Lease, the consummation of the transactions contemplated, nor the fulfillment of or compliance with the terms and conditions of this Lease:
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(i)conflict with or result in a breach, default or violations of: Tenant’s organizational documents; any law, regulation, ordinance, court order, injunction, or decree of any court, administrative agency or governmental body, or any of the terms, conditions or provisions of any restriction or any agreement or other instrument to which Tenant is now a party or by which it is bound; or
(ii)result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of Tenant under the terms of any instrument or agreement.
(d)There is no litigation, claim, investigation, challenge or other proceeding now pending or, to Tenant’s knowledge after due and complete investigation, threatened, challenging the existence or powers of Tenant, or in any way affecting its ability to execute or perform under this Lease or in any way having a material adverse affect on the operations, properties, business or finances of Tenant.
(e)This Lease constitutes the legal, valid and binding obligation of Tenant, enforceable against Tenant in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium and other laws affecting creditors’ rights and remedies generally and by the application of equitable principles.
(f)No officer, agent or employee of the City is employed by Tenant or has a financial interest directly or indirectly in this Lease, a Sublease, any contract or subcontract thereunder, or the compensation to be paid under it except as may be permitted in writing by the Board of Ethics established under Chapter 2-156 of the Municipal Code or as may be permitted by law.
(g)Tenant has not knowingly and will not knowingly used the services of any person or entity for any purpose in its performance under this Lease, when such person or entity is ineligible to perform services under this Lease or in connection with it, as a result of any local, state or federal law, rule or regulation, or when person or entity has an interest that would conflict the performance of services under this Lease.
(h)There was no broker instrumental in consummating this Lease and no conversations or prior negotiations were had with any broker concerning the rights granted in this Lease with respect to the Premises. Tenant must hold the City harmless against any claims for brokerage commission arising out of any conversations or negotiations had by Tenant with any broker.
(i)To the best of Tenant’s knowledge, Tenant nor any Affiliate of Tenant is listed on any of the following lists maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the Bureau of Industry and Security of the U.S. Department of Commerce or their successors, or on any other list of persons with which the City may not do business under applicable law: the Specially Designated Nationals List, the Denied Persons List, the Unverified List, and Entity List, and the Debarred List.
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(j)Tenant, and to the best of Tenant’s knowledge, its Affiliates, any of their respective owners holding 7.5% or more beneficial ownership interest, and any of Tenant’s directors, officers, members, or partners:
(i)have no interest, directly or indirectly, that conflicts in any manner or degree with Tenant’s performance under this Lease;
(ii)have no outstanding parking violation complaints or debts, as the terms are defined in Section 2-92-380 of the Municipal Code (with the exception of any debt or obligation that is being contested in a pending administrative or judicial proceeding) and agrees that, for the Term, they will promptly pay any debts, outstanding parking violation complaints or monetary obligations to the City that may arise during the Term, with the exception of any debt or obligation that is being contested in a pending administrative or judicial proceeding;
(iii)are not in default under any other City contract or agreement as of the Effective Date, nor have been deemed by the City to have been in default of any other City contract or agreement within five years immediately preceding the Effective Date;
(iv)are not in violation of the provisions of § 2-92-320 of the Municipal Code pertaining to certain criminal convictions or admissions of guilt and are not currently debarred or suspended from contracting by any Federal, State or local governmental agency;
(v)are not delinquent in the payment of any taxes due to the City;
(vi)will not at any time during the Term have any interest or acquire any interest, directly or indirectly, that conflicts or would or may conflict in any manner or degree with Tenant’s performance under this Lease; and
(vii)will not make use of the Premises in any manner that might interfere with the landing and taking off of aircraft at the Airport under current or future conditions or that might otherwise constitute a hazard to the operations of the Airport or to the public generally.
(k)Except only for those representations, statements, or promises expressly contained in this Lease, including any Exhibits attached to this Lease and incorporated by reference in this Lease, no representation, warranty of fitness, statement or promise, oral or in Writing, or of any kind whatsoever, by the City, its officials, agents, or employees, has induced Tenant to enter into this Lease or has been relied upon by Tenant, including any with reference to:
(i)the meaning, correctness, suitability or completeness of any provisions or requirements of this Lease; (ii)the nature of the services to be performed;
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(iii)the nature, quantity, quality or volume of any materials, equipment, labor and other facilities, needed for the performance of this Lease;
(iv)the general conditions that may in any way affect this Lease or its performance;
(v)the compensation provisions of this Lease; or
(vi)any other matters, whether similar to or different from those referred to in clauses (i) through (iv) immediately above, affecting or having any connection with this Lease, the negotiation of this Lease, any discussions of this Lease, the performance of this Lease or those employed in connection with it.
15.2 |
Business Documents. Disclosure of Ownership Interests and Maintenance of Existence. |
(a)Tenant must provide evidence of its authority to do business in the State of Illinois including, if applicable, certifications of good standing from the Office of the Secretary of State of Illinois, and appropriate resolutions or other evidence of the authority of the persons executing this Lease on behalf of Tenant.
(b)In accordance with Section 12.2, Tenant has provided the Commissioner with an Economic Disclosure Statement and Affidavit (“EDS’’) for itself and EDSs for all entities with an ownership interest of 7.5 percent or more in Tenant, copies of which are attached to this Lease as Exhibit H. Upon request by the Commissioner, Tenant must further cause its Subtenants and proposed Transferees (and their respective 7.5 percent owners) to submit an EDS to the Commissioner. Tenant must provide the Commissioner, upon request, a “no change” affidavit if the information in the EDS(s) attached as Exhibit H remains accurate, or revised and accurate EDS(s) if the information contained in the attached EDS(s) has changed. In addition, Tenant must provide the City revised and accurate EDS(s) within thirty (30) days of any event or change in circumstance that renders the EDS(s) inaccurate. Failure to maintain accurate EDS(s) on file with the City is an Event of Default.
15.3 |
Licenses and Permits. Tenant shall and shall cause its Subtenants in a timely manner consistent with Tenant’s obligations under this Lease, secure and maintain, or cause to be secured and maintained at its expense, the permits, licenses, authorizations and approvals as are necessary under federal, state or local law for Tenant and its Subtenants to operate the Concession Program; to construct, operate, use and maintain the Premises; and otherwise to comply with the terms of this Lease and the privileges granted under this Lease. Tenant and its Subtenants shall promptly provide copies of any required licenses and permits to the Commissioner when requested from time to time. |
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15.4 |
Confidentiality. Except as may be required by law during or after the performance of this Lease, Tenant or its Subtenants will not disseminate any non-public information regarding this Lease or the Concession operations without the prior written consent of the Commissioner, which consent will not be unreasonably withheld, conditioned or delayed. If Tenant or any Subtenant is presented with a request for documents by any administrative agency or with a subpoena duces tecum regarding any documents that may be in its possession by reason of this Lease or any Sublease, Tenant must immediately give notice to the City’s Corporation Counsel. The City may contest the process by any means available to it, at the City’s sole cost and expense, before the records or documents are submitted to a court or other third party. Tenant or its Subtenants, however, are not obligated to withhold the delivery beyond that time as may be ordered by the court or administrative agency, unless the subpoena or request is quashed or the time to produce is otherwise extended. Tenant shall require each prospective Subtenant to abide by such restrictions in connection with their respective Subleases. |
15.5 |
Shakman. |
(a) |
The City is subject to the May 31, 2007 Order entitled “Agreed Settlement Order and Accord” (the “Shakman Accord”) and the August 16, 2007 “City of Chicago Hiring Plan” (the “City Hiring Plan”) entered in Shakman v. Democratic Organization of Cook County, Case No 69 C 2145 (United State District Court for the Northern District of Illinois). Among other things, the Shakman Accord and the City Hiring Plan prohibit the City from hiring persons as governmental employees in non-exempt positions on the basis of political reasons or factors. |
(b) |
Tenant is aware that City policy prohibits City employees from directing any individual to apply for a position with Tenant, either as an employee or as a subcontractor, and from directing Tenant to hire an individual as an employee or as a subcontractor. Accordingly, Tenant must follow its own hiring and contracting procedures, without being influenced by City employees. Any and all personnel of Tenant in connection with this Lease are employees or subcontractors of Tenant, not employees of the City of Chicago. This Contract is not intended to and does not constitute, create, give rise to, or otherwise recognize an employer-employee relationship of any kind between the City and any personnel of Tenant. |
(c) |
Tenant will not condition, base, or knowingly prejudice or affect any term or aspect of the employment of any personnel associated with this Lease, or offer employment to any individual to provide services associated with this Lease, based upon or because of any political reason or factor, including, without limitation, any individual’s political affiliation, membership in a political organization or party, political support or activity, political financial contributions, promises of such political support, activity or financial contributions, or such individual’s political sponsorship or recommendation. For purposes of this Lease, a political organization or party is an identifiable group or entity that has as its primary purpose the support of or opposition to candidates for |
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elected public office. Individual political activities are the activities of individual persons in support of or in opposition to political organizations or parties or candidates for elected public office.
(d) |
In the event of any communication to Tenant by a City employee or City official in violation of Section 15.5(b) above, or advocating a violation of Section 15.5(c) above, Tenant will, as soon as is reasonably practicable, report such communication to the Hiring Oversight Section of the City’s Office of the Inspector General, and also to the Commissioner of the Department of Aviation. |
ARTICLE 16
NONDISCRIMINATION AND AFFIRMATIVE ACTION
16.1 |
Non-Discrimination. |
(a)Tenant for itself, its personal representatives, successors in interest, and assigns, as a part of the consideration of this Lease, covenants that: (i) no person on the grounds of race, color, or national origin will be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination in the use of the Premises; (ii) in the construction of any Improvements on, over, or under the Premises and the furnishing of services in them, no person on the grounds of race, color, or national origin will be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination; (iii) Tenant will use the Premises in compliance with all other requirements imposed by or under 49 C.F.R. Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, and as those regulations may be amended; and (iv) Tenant shall manage the Concession Program on a fair, equal, and non-discriminatory basis. In addition, Tenant assures that it will comply and will cause its Subtenants to comply with all other pertinent statutes, Executive Orders and the rules as are promulgated to assure that no person will, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefitting from federal assistance.
(b)It is an unlawful practice for Tenant to, and Tenant must at no time: (i) fail or refuse to hire, or discharge, any individual or discriminate against the individual with respect to his or her compensation, or the terms, conditions, or privileges of his or her employment, because of the individual’s race, creed, color, religion, sex, age, handicap or national origin; or (ii) limit, segregate, or classify its employees or applicants for employment in any way that would deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee, because of the individual’s race, creed, color, religion, sex, age, handicap or national origin; or (iii) in the exercise of the privileges granted in this Lease, discriminate or permit discrimination in any manner, including the use of the Premises, against any person or group of persons because of race, creed, color, religion, national origin, age, handicap, sex or ancestry. Tenant must post in conspicuous places to which its employees or applicants for employment have access, notices setting forth the provisions of this non-discrimination clause.
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(c)Tenant and its Subtenants must comply with the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1981), as amended, and to the extent required by the law, must undertake, implement and operate an affirmative action program in compliance with the rules and regulations of the Federal Equal Employment Opportunity Commission and the Office of Federal Contract Compliance, including 14 CFR Part 152, Subpart E. Attention is called to: Exec. Order No. 11,246, 30 Fed. Reg. 12,319 (1965), reprinted in 42 U.S.C. § 2000e note, as amended by Exec. Order No. 11,375, 32 Fed. Reg. 14,303 (1967) and by Exec. Order No. 12,086, 43 Fed. Reg. 46,501 (1978); Age Discrimination Act, 42 U.S.C. §§ 6101-06 (1981); Rehabilitation Act of 1973, 29 U.S.C. §§ 793-94 (1981); Americans with Disabilities Act, 42 U.S.C. § 12101 and 41 CFR Part 60 et seq. (1990) and 49 CFR Part 21, as amended (the “ADA”); and all other applicable federal statutes, regulations and other laws.
(d)Tenant and its Subtenants must comply with the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq. as amended and any rules and regulations promulgated in accordance with it, including the Equal Employment Opportunity Clause, 5 Ill. Admin. Code §750 Appendix A. Furthermore, Tenant and its Subtenants must comply with the Public Works Employment Discrimination Act, 775 ILCS 10/0.01 et seq., as amended, and all other applicable state statutes, regulations and other laws.
(e)Tenant and its Subtenants must comply with the Chicago Human Rights Ordinance, sec. 2-160-010 et seq. of the Municipal Code, as amended, and all other applicable City ordinances and rules. Further, Tenant and its Subtenants must furnish or must cause each of its Contractor(s) to furnish such reports and information as requested by the Chicago Commission on Human Relations.
(f)Tenant and its Subtenants must insert these non-discrimination provisions in any agreement by which Tenant or its Subtenants grants a right or privilege to any person, firm, or corporation to render accommodations and/or services to the public on the Premises. Tenant and its Subtenants must incorporate all of the above provisions in all agreements entered into with any Subtenants, suppliers of materials, furnishers of services, Contractors of any tier, and labor organizations that furnish skilled, unskilled and craft union skilled labor, or that may provide any such materials, labor or services in connection with this Lease, and Tenant and its Subtenants must require them to comply with the law and enforce the requirements. In all solicitations either by competitive bidding or negotiations by Tenant or its Subtenants for work to be performed under a Subcontract, including procurements of materials or leases of equipment, each potential Contractor or supplier must be notified by Tenant of the Tenant’s obligations under this Lease relative to nondiscrimination.
(g)Noncompliance with this Section will constitute a material breach of this Lease; therefore, in the event of such breach, Tenant authorizes the City to take such action as federal, state or local laws permit to enforce compliance, including judicial enforcement. In the event of Tenant’s noncompliance with the nondiscrimination provisions of this Lease, the City may impose such sanctions as it or the federal or state government may determine to be reasonably appropriate, including cancellation, termination or suspension of the Lease, in whole or in part.
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(h)Tenant and its Subtenants must permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City, the Commissioner or the Federal government to be pertinent to ascertain compliance with the terms.of this Section. Tenant and its Subtenants must furnish to any agency of the federal or state government or the City, as required, any and all documents, reports and records required by Title 14, Code of Federal Regulations, Part 152, Subpart E, including an affirmative action plan and Form EEO-1.
16.2 |
Airport Concession Disadvantaged Business Enterprises. This Lease is subject to the requirements of the U.S. Department of Transportation’s regulations 49 C.F.R. Parts 23 and 26, as amended from time to time. The City has implemented an ACDBE Program under which qualified firms may have the opportunity to participate in the ownership and operation of Airport concession businesses. An ACDBE goal of thirty percent (30%), as measured by total estimated annual Subtenant Gross Receipts following the Redevelopment and the opening of the New Concession Premises, has been established for the Concession Program under this Lease. During the Term, Tenant shall manage and monitor the commitments made by its Subtenants under the ACDBE Compliance Program on behalf of the City and shall provide the City with an annual report (or as more frequently as may be required by the City) in the format required by the FAA evidencing Subtenants’ good faith efforts of reaching the goal of 30% participation by ACDBEs (certified either by the City or pursuant to the Illinois Unified Certification Program) in the Concession Program. Tenant shall enforce and its Subtenants must comply with the Special Conditions Regarding ACDBE participation attached hereto as Exhibit C. Failure to comply with such Special Conditions by any Subtenant shall be a default under the Sublease and Tenant shall include this provision in the Sublease. Tenant shall enforce the compliance of this provision with all Subtenants and shall indicate on the list of Initial Operators all ACDBEs identified on the Latest Date of Beneficial Occupancy. If Tenant shall fail to cause its Subtenants to comply with such Special Conditions, it shall an Event of Default hereunder. Further, if Tenant enters into a Sublease directly with an ACDBE, Tenant shall comply with the Special Conditions Regarding ACDBE Participation. Tenant or its Subtenants shall provide all information and reports as may be required by the City and shall permit access to their books, records and accounts and facilities to determine compliance with ACDBE Special Conditions, directives and regulations. Commencing on the Earliest Date of Beneficial Occupancy and continuing thereafter during the Term, Tenant shall provide semi-annual reports to the City of all ACDBE Subtenants. Said reports shall be in a format acceptable to the City and shall provide the level of ACDBE participation for the period in question and on year-to-date basis, including the percentage of Subtenant Gross Receipts attributable to each ACDBE Subtenant. To the extent ACDBE participation is in the form of joint venture, Tenant (or a consultant at Tenant’s expense) will be responsible to work with and assist the certifying agency in the evaluation of the work performed by the ACDBE with the ACDBE’s own forces to ensure that it meets the Subtenant’s stated ACDBE goals in accordance with the FAA’s ACDBE joint venture guidance. During the Term, Tenant shall prepare, and the CDA shall be responsible for submitting, any and all ACDBE reports to the FAA. |
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[**]
16.4 |
Other Provisions. Tenant shall comply with and shall use its best efforts to cause its Subtenants to comply with all federal and state laws and City regulations pertaining to Civil Rights and Equal Opportunity, including executive orders and rules and regulations of appropriate federal and state agencies unless otherwise exempt therein. |
ARTICLE 17
DEFAULT, REMEDIES AND TERMINATION
17.1 |
Events of Default. |
(a)The following constitute Events of Default by Tenant under this Lease. The Commissioner will notify Tenant in writing of any event that the Commissioner believes to be an Event of Default. Tenant will be given an opportunity to cure the Event of Default within a reasonable period of time, as determined by the Commissioner, but not to exceed thirty (30) days after written notice of the Event of Default; provided, that (i) if a provision of this Lease provides for a different cure period for a particular Event of Default, that different cure period will apply; (ii) if a provision of this Lease does not allow a right to cure a particular Event of Default, there will be no right to cure; and (iii) if neither (i) or (ii) apply and if the promise, covenant, term, condition or other non-monetary obligation or duty cannot be cured within the time period granted by the Commissioner, but Tenant promptly begins and diligently and continuously proceeds to cure the failure within the time period granted and after that continues to diligently and continuously proceed to cure the failure, and the failure is reasonably susceptible of cure within sixty (60) days from delivery of the notice, Tenant will have the additional time, not in any event to exceed sixty (60) days, to cure the failure.
(1)Any material misrepresentation intentionally made by Tenant to the City in the inducement to City to enter this Lease or in the performance of this Lease. There is no right to cure this Event of Default.
(2)Tenant’s failure to make any payment in full when due under this Lease and failure to cure the default within ten (10) days after the City gives written notice of the non-payment to Tenant. In addition, Tenant’s failure to make any such payment within ten (10) days after the written notice more than three (3) times in any Lease Year constitutes an Event of Default without the necessity of the City giving notice of the fourth failure to Tenant or any opportunity to cure it.
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(3)Subject to Force Majeure, Tenant’s failure to promptly and fully keep, fulfill, comply with, observe, or perform any promise, covenant, term, condition or other non-monetary obligation or duty of Tenant contained in this Lease.
(4)Tenant’s failure to provide or maintain the insurance coverage required under this Lease (including any material non-compliance with the requirements) and the failure to cure within two (2) days following written notice from the Commissioner; or, if the noncompliance is non-material, the failure to cure within twenty (20) days after the Commissioner gives written notice. The Commissioner, in her sole discretion, will determine if noncompliance is material.
(5)Subject to Force Majeure, Tenant’s failure to cause the Concession Program operations in any Concession Premises at all times Tenant is required to do so under this Lease.
(6)Tenant’s failure to require Subtenants to comply with the Street Pricing policy.
(7)Subject to Force Majeure, Tenant’s failure to begin or to complete or to diligently cause its Subtenant to begin or complete its respective Improvements (as defined in Article 8 hereof) on a timely basis or to timely open for business in the Premises or any portion of it.
(8)An default by Tenant or any Affiliate under any other agreement it may presently have or may enter into with the City during the Term of this Lease and failure to cure such default within any applicable cure period.
(9)Tenant does any of the following and the action affects Tenant’s ability to carry out the terms of this Lease: (i) becomes insolvent, as the term is defined under Section 101 of the United States Bankruptcy Code as amended from time to time; or (ii) fails to pay its debts generally as they mature; or (iii) seeks the benefit of any present or future federal, state or foreign insolvency statute; or (iv) makes a general assignment for the benefit of creditors, or (v) files a voluntary petition in bankruptcy or a petition or answer seeking an arrangement of its indebtedness under the United States Bankruptcy Code or under any other law or statute of the United States or of any State or any foreign jurisdiction; or (vi) consents to the appointment of a receiver, trustee, custodian, liquidator or other similar official, of all or substantially all of its property, which remains in effect for a period in excess of sixty (60) days.
(10)An order for relief is entered by or against Tenant under any chapter of the Bankruptcy Code or similar law in any foreign jurisdiction and is not stayed or vacated within sixty (60) days following its issuance.
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(11)Tenant is dissolved.
(12)A violation of law that results in a guilty plea, a plea of nolo contendere, guilty finding, or conviction of a criminal offense, by Tenant, or any of its directors, officers, partners or key management employees directly or indirectly relating to this Lease, and that may threaten, in the sole judgment of Commissioner, Tenant’s performance of this Lease in accordance with its terms.
(13)Subject to Force Majeure, any failure to perform, act, event or omission that is specifically identified as an Event of Default elsewhere in this Lease.
17.2 |
Remedies. |
If an Event of Default occurs and is not cured by Tenant in the time allowed, in addition to any other remedies provided for in this Lease, including the remedy of Self-help as provided in Section 17.3, the City through the Commissioner or other appropriate City official may exercise any or all of the following remedies.
(a)Terminate this Lease with respect to all or a portion of the Premises and exclude Tenant from that part of the Premises affected by the termination. If the Commissioner elects to terminate this Lease, the Commissioner may, at the Commissioner’s sole option, serve notice upon Tenant that this Lease ceases and expires and becomes absolutely void with respect to the Premises or that part identified in the notice on the date specified in the notice, to be no less than five (5) days after the date of the notice, without any right on the part of Tenant after that to save the forfeiture by payment of any sum due or by the performance of any term, provision, covenant, agreement or condition broken. At the expiration of the time limit in the notice, this Lease and the Term of this Lease, as well as the right, title and interest of Tenant under this Lease, wholly ceases and expires and becomes void with respect to the Premises identified in such notice in the same manner and with the same force and effect (except as to Tenant’s liability) as if the date fixed in the notice were the date in this Lease stated for expiration of the Term with respect to the Premises identified in such notice.
(b)Recover all Rent, including Additional Rent and any other amounts due that have accrued and are then due and payable and also all damages available at law or under this Lease. If this Lease is terminated, whether in its entirety or with respect to a part of the Premises, the damages will include damages for the balance of the scheduled Term, based upon any and all amounts that Tenant would have been obligated to pay for the balance of the Term with respect to the Premises, or if this Lease is terminated with respect to a portion of the Premises, that portion of the Premises affected by the termination, calculated as provided in this Lease or, if not fixed, as reasonably estimated and prorated among the various portions of the Premises. In determining the amount of damages for the period after termination, the Commissioner may make the determination based upon the sum of any future payments that would have been due to the City, for the full Lease Year immediately before the Event of Default. All amounts that would have been due and payable after termination for the balance of the Term with respect to all or a portion of the Premises must be discounted to present value at a rate deemed to be commercially reasonable for such purposes as of the date of termination. To the extent permitted by law, the Commissioner may declare all amounts to be immediately due and payable. Notwithstanding the foregoing, the City shall use its best efforts to mitigate its damages by finding a replacement Tenant for the Premises being terminated paying comparable Rent.
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(c)At any time after the occurrence of any uncured Event of Default, whether or not this Lease has been terminated, reenter and repossess the Premises and/or any part of it with or without process of law, so long as no undue force is used, and the City has the option, but not the obligation, to re-lease all or any part of the Premises. The City, however, is not required to accept any tenant proposed by Tenant or to observe any instruction given the City about such a re-lease. The failure of the City to re-lease the Premises or any part or parts of it does not relieve or affect Tenant’s liability under this Lease nor is the City liable for failure to re-lease. Reentry or taking possession of the Premises does not constitute an election on the City’s part to terminate this Lease unless a written notice of the election by the Commissioner is given to Tenant. Even if the City re-leases without termination, the Commissioner may at any time after that elect to terminate this Lease for any previous uncured Event of Default. For the purpose of re-leasing, the Commissioner may decorate or make repairs, changes, alterations or additions in or to the Premises to the extent deemed by the Commissioner to be necessary to re-let the Premises, and the cost of the decoration, repairs, changes, alterations or additions will be charged to and payable by Tenant as Additional Rent under this Lease. Any sums collected by the City from any new tenant obtained on account of Tenant will be credited against the balance of the Rent due under this Lease. Tenant must pay the City monthly, on the days when payments of Rent would have been payable under this Lease, the amount due under this Lease less the amount obtained by the City from the new tenant, if any.
(d)Enter upon the Premises, distrain upon and remove from it all inventory, equipment, machinery, trade fixtures and personal property of any kind or nature, whether owned by Tenant or by others, and to proceed without judicial decree, writ of execution or assistance or involvement of constables or the City’s and Tenant’s officers, to conduct a private sale, by auction or sealed bid without restriction. Tenant waives the benefit of all laws, whether now in force or later enacted, exempting any of Tenant’s property on the Premises or elsewhere from distraint, levy or sale in any legal proceedings taken by the City to enforce any rights under this Lease.
(e)Seek and obtain specific performance, a temporary restraining order or an injunction, or any other appropriate equitable remedy.
(f)Seek and obtain monetary damages.
(g)Deem Tenant and Affiliates non-responsible in future contracts or concessions to be awarded by the City.
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(h)Declare Tenant and Affiliates in default under any other existing contracts or agreements they might have with the City and to exercise any remedies available under those other contracts or agreements.
(i)Assume the assignment of any and all Subleases between Tenant and Subtenants.
(j)Require Tenant to terminate a Sublease or a Contract that is causing an Event of Default under this Lease which has not been cured.
17.3 |
Commissioner’s Right to Perform Tenant’s Obligations. |
(a)Upon the occurrence of an Event of Default that Tenant has failed to cure in the time provided, the Commissioner may, but is not obligated to, make any payment or perform any act required to be performed by Tenant under this Lease in any manner deemed expedient by the Commissioner for the purpose of correcting the condition that gave rise to the Event of Default (“Self-help”). The Commissioner’s inaction never constitutes a waiver of any right accruing to the City under this Lease nor do the provisions of this Section or any exercise by the Commissioner of Self-help under this Lease cure any Event of Default. Any exercise of Self-help does not limit the right of any other City department or agency to enforce applicable City ordinances or regulations.
(b)The Commissioner, in making any payment that Tenant has failed to pay:
(i)relating to taxes, may do so according to any bill, statement or estimate, without inquiry into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim;
(ii)for the discharge, compromise or settlement of any lien, may do so without inquiry as to the validity or amount of any claim for lien that may be asserted; and
(iii)in connection with the completion of construction, furnishing or equipping of the Premises or the licensing, operation or management of the Premises or the payment of any of its Operating Costs, may do so in such amounts and to such persons as the Commissioner may deem appropriate.
Nothing contained in this Lease requires the Commissioner to advance monies for any purpose.
(c)If Tenant fails to perform its obligations under this Lease to maintain the Premises or to manage the Concession Program in accordance with specified standards within sixty (60) days following written notice from the Commissioner, or in the event of a serious health or safety concern or in an emergency (in which case no notice is required) the Commissioner may, but is not obligated to, direct the Department to perform or cause the performance of any such obligation in any manner deemed expedient by the Commissioner for the purpose of correcting the condition in question.
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(d)All sums paid by the City under the provisions of this Section and all necessary and incidental costs, expenses and reasonable attorneys’ fees in connection with the performance of any such act by the Commissioner, together with interest thereon at the Default Rate, from the date of the City’s payment until the date paid by Tenant, are deemed Additional Rent under this Lease and are payable to the City within ten (10) days after demand therefor, or at the option of the Commissioner, may be added to any Rent then due or later becoming due under this Lease, and Tenant covenants to pay any such sum or sums with interest at the Default Rate.
17.4 |
Effect of Default and Remedies. |
(a)The City’s waiver of any one right or remedy provided in this Lease does not constitute a waiver of any other right or remedy then or later available to the City under this Lease or otherwise. A failure by the City or the Commissioner to take any action with respect to any Event of Default or violation of any of the terms, covenants or conditions of this Lease by Tenant will not in any respect limit, prejudice, diminish or constitute a waiver of any rights of the City to act with respect to any prior, contemporaneous or later violation or Event of Default or with respect to any continuation or repetition of the original violation or Event of Default. The acceptance by the City of payment for any period or periods after an Event of Default or violation of any of the terms, conditions and covenants of this Lease does not constitute a waiver or diminution of, nor create any limitation upon any right of the City under this Lease to terminate this Lease for subsequent violation or Event of Default, or for continuation or repetition of the original violation or Event of Default. Tenant has no claim of any kind against the City by reason of the City’s exercise of any of its rights as set forth in this Lease or by reason of any act incidental or related to the exercise of rights.
(b)All rights and remedies of the City under this Lease are separate and cumulative and none excludes any other right or remedy of the City set forth in this Lease or allowed by law or in equity. No termination of this Lease or the taking or recovery of the Premises or any portion thereof deprives the City of any of its remedies against Tenant for Rent, including Additional Rent or other amounts due or for damages for the Tenant’s breach of this Lease. Every right and remedy of the City under this Lease arising out of Tenant’s default or indemnification obligations survives the expiration of the Term or the termination of this Lease.
17.5 |
Tenant’s Right to Perform City Obligations. |
In the event that the City fails to perform its obligations as landlord (and not as Airport operator or municipality) with respect to the Premises under this Lease, the Tenant may send City written notice citing the Lease provision at issue and the facts surrounding the alleged non-performance. If the City does not respond to such notice within sixty (60) days and take timely corrective action as appropriate under the circumstances, Tenant may perform such obligation on behalf of the City. Tenant’s reasonable and actual costs in performing may be offset against the following month’s Rent.
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ARTICLE 18
GENERAL PROVISIONS
18.1 |
Entire Lease. This Lease contains all the terms, covenants, conditions and agreements between the City and Tenant relating in any manner to the use and occupancy of the Premises and otherwise to the subject matter of this Lease. No prior or other agreement or understandings pertaining to these matters are valid or of any force and effect. This Lease supersedes all prior or contemporaneous negotiations, undertakings, and agreements between the parties. No representations, inducements, understandings or anything of any nature whatsoever made, stated or represented by the City or anyone acting for or on the City’s behalf, either orally or in writing, have induced Tenant to enter into this Lease, and Tenant acknowledges, represents and warrants that Tenant has entered into this Lease under and by virtue of Tenant’s own independent investigation. |
18.2 |
Counterparts. This Lease may be comprised of several identical counterparts and may be fully executed by the parties in separate counterparts. Each such counterpart is deemed to be an original, but all such counterparts together must constitute but one and the same Agreement. |
18.3 |
Amendments. Except as otherwise expressly provided in this Lease, the provisions of this Lease may by amended only by a written agreement signed by the City and Tenant. No review or approval by the Commissioner, including approval of Construction Documents, constitutes a modification of this Lease (except to the extent that the review or approval expressly provides that it constitutes such a modification or it is apparent on its face that the review or approval, if made in writing, modifies terms or provisions of this Lease that are within the express powers of the Commissioner under this Lease to modify), nor excuse Tenant from compliance with the requirements of this Lease or of any applicable laws, ordinances or regulations. Amendments must be signed by the Mayor, provided that the Commissioner alone may sign amendments to the Exhibits. |
18.4 |
Severability. Whenever possible, each provision of this Lease must be interpreted in such a manner as to be effective and valid under applicable law. However, notwithstanding anything contained in this Lease to the contrary, if any provision of this Lease is under any circumstance prohibited by or invalid under applicable law, the provision is severable and deemed to be ineffective, only to the extent of the prohibition or invalidity, without invalidating the remaining provisions of this Lease or the validity of the provision in other circumstances. |
18.5 |
Covenants in Subleases and Contracts. All obligations imposed on Tenant under this Lease pertaining to the maintenance and operation of the Premises and compliance with the ACDBE and M/WBE goals contained in this Lease are deemed to include a covenant by Tenant to insert appropriate provisions in all Subleases and Contracts covering work under this Lease and to use its commercially reasonable efforts to enforce compliance of all Subtenants and contractors with the requirements of those provisions. |
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18.6 |
Governing Law. This Lease is deemed made in the state of Illinois and governed as to performance and interpretation in accordance with the laws of Illinois. Tenant irrevocably submits itself to the original jurisdiction of those courts located within Cook County, Illinois, with regard to any controversy arising out of, relating to, or in anyway concerning the execution or performance of this Lease. Tenant consents to service of process on Tenant, at the option of the City, by registered or certified mail addressed to the applicable office as provided for in this Lease, by registered or certified mail addressed to the office actually maintained by Tenant, or by personal delivery on any officer, director, or managing or general agent of Tenant. If any action is brought by Tenant against the City concerning this Lease, the action can only be brought in those courts located within Cook County, Illinois. |
18.7 |
Approvals. This Lease shall be subject to the approval of the (i) Aviation Committee of the City Council of the City of Chicago and the full City Council (the “City Approvals”); and (ii) to the Members of Tenant (the “Tenant Approvals”) and shall not be valid and enforceable until such City Approvals have been granted and the Tenant Approvals have been obtained. |
18.8 |
Notices. Any notices or other communications pertaining to this Lease must be in writing and are deemed to have been given by a party if sent by nationally recognized commercial overnight courier or registered or certified mail, return receipt requested, postage prepaid and addressed to the other party. Notices are deemed given on the date of receipt if by personal service, or one (1) day after deposit with a nationally recognized commercial overnight courier, three (3) days after deposit in the U.S. mails sent by certified mail, return receipt requested, postage prepaid, or otherwise upon refusal of receipt. Unless otherwise directed by Tenant in writing, all notices or communications from City to Tenant will sent to Tenant’s notice address as set forth in this Lease. All notices or communications from Tenant to the City must be addressed to: |
Commissioner, Department of Aviation
City of Chicago
O’Hare International Airport
10510 W. Zemke Rd
Chicago, Illinois 60666
and with a copy to: |
Managing Deputy Commissioner of Concessions, Real Estate and |
If the notice or communication relates to payment of Rent or other payments to the City or relates to the insurance requirements, a copy must be sent to:
City Comptroller
City of Chicago
City Hall - Room 501
121 N. LaSalle Street
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Chicago, Illinois 60602
If the notice or communication relates to a legal matter or the indemnification requirements, a copy must be sent to:
City of Chicago, Department of Law
Aviation, Environmental and Regulatory Section
30 North LaSalle Street, Suite 900
Chicago, Illinois 60602
Attn: Deputy Corporation Counsel
Either party may change its address or the individual to whom the notices are to be given by a notice given to the other party in the manner set forth above.
18.9 |
Successors and Assigns; No Third Party Beneficiaries. This Lease inures to the exclusive benefit of, and be binding upon, the parties and their permitted successors and assigns; nothing contained in this Section, however, constitutes approval of an assignment or other transfer by Tenant not otherwise permitted in this Lease. Nothing in this Lease, express or implied, is intended to confer on any other person, sole proprietorship, partnership, corporation, trust or other entity, other than the parties and their successors and assigns, any right, remedy, obligation, or liability under, or by reason of, this Lease unless otherwise expressly agreed to by the parties in writing. No benefits, payments or considerations received by Tenant for the performance of services associated and pertinent to this Lease must accrue, directly or indirectly, to any employees, elected or appointed officers or representatives, or to any other person or persons identified as agents of, or who are by definition an employee of, the City. Neither this Lease nor any rights or privileges under this Lease are an asset of Tenant or any third party claiming by or through Tenant or otherwise, in any bankruptcy, insolvency or reorganization proceeding. |
18.10 |
Subordination. |
(a)This Lease is subordinate to the provisions and requirements of any existing or future agreements between the City and the United States government or other governmental authority, pertaining to the development, operation or maintenance of the Airport, including agreements the execution of which have been or will be required as a condition precedent to the granting of federal or other governmental funds for the development of the Airport. If the United States government requires modifications, revisions, supplements or deletions of any of the terms of this Lease, then Tenant consents to the changes to this Lease. In the event that any such modifications, revisions, supplements or deletions result in either a material increase to Tenant’s obligations and liabilities under this Lease or a material decrease in Tenant’s rights under this Lease or have a material adverse effect on the operation of the Concession Program, then Tenant shall have the right to terminate this Lease upon prior written notice within ninety (90) days following written notification from the City of the required amendment.
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(b)This Lease and all rights granted to Tenant under this Lease are expressly subordinated and subject to the International Terminal Use Agreement and the Use Agreement with any airline utilizing the Airport, including the Terminals, and any existing agreement with any airline consortium pertaining to the operation of the Airport, including the Terminals.
(c)To the extent of a conflict or inconsistency between this Lease and any agreement described in paragraphs (a) and (b) above, those provisions in this Lease so conflicting must be performed as required by those agreements referred to in paragraphs (a) and (b) except to the extent that any such conflicts or inconsistencies requiring Tenant to perform as required under such other agreements result in either a material increase to Tenant’s obligations and liabilities under this Lease or a material decrease in Tenant’s rights under this Lease or have a material adverse effect on the operation of the Concession Program.
18.11 |
Conflict. In the event of any conflict between the terms and provisions of this Lease and the terms and provisions of any Sublease or contract between Tenant and its Subtenants, Contractors and any other third party, the terms and provisions of this Lease govern and control. |
18.12 |
Offset by Tenant. Whenever in this Lease the City is obligated to pay Tenant an amount, then the City Comptroller may elect to require Tenant to offset the amount due against Rent or other payments owed by Tenant to the City, in lieu of requiring the City to pay such amount. Tenant shall have no right to offset any amount due to City under this Lease against amounts due to Tenant by City unless so directed in writing by the City Comptroller. |
18.13 |
Waiver Remedies. No delay or forbearance on the part of any party in exercising any right, power or privilege must operate as a waiver of it, nor does any waiver of any right, power or privilege operate as a waiver of any other right, power or privilege, nor does any single or partial exercise of any right, power or privilege preclude any other or further exercise of it or of any other right, power or privilege. No waiver is effective unless made in writing and executed by the party to be bound by it. The rights and remedies provided for in this Lease are cumulative and are not exclusive of any rights or remedies that the parties otherwise may have at law, in equity or both, except that the City will not be liable to Tenant for any consequential damages whatsoever related to this Lease. |
18.14 |
Authority of Commissioner. Unless otherwise expressly stated in this Lease, any consents and approvals to be given by the City under this Lease may be made and given by the Commissioner or by such other person as may be duly authorized by the City Council, unless the context clearly indicates otherwise. |
18.15 |
Estoppel Certificate. From time to time upon not less than fifteen (15) days prior request by the other party, a party or its duly authorized representative having knowledge of the following facts, will execute and deliver to the requesting party a statement in writing certifying as to matters concerning the status of this Lease and the parties’ performance under this Lease, including the following: |
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(a)that this Lease is unmodified and in full force and effect (or if there have been modifications, a description of the modifications and that the Agreement as modified is in full force and effect);
(b)the dates to which Rental, including Additional Rental, have been paid and the amounts of the Rental most recently paid;
(c)that the requesting party is not in default under any provision of this Lease, or, if in default, the nature of it in detail;
(d)that, to its knowledge, the requesting party has completed all required improvements in accordance with the terms of this Lease, and Tenant is in occupancy and paying Rental on a current basis with no offsets or claims; and
(e)in the case of the City’s request under this Lease, such further matters as may be reasonably requested by the City, it being intended that any such statement may be relied upon by third parties.
18.16 |
No Personal Liability. Neither City nor Tenant, shall charge any elected or appointed official, agent, or employee of the City or Tenant personally or seek to hold him or her personally or contractually liable for any liability or expenses of defense under any provision of this Lease or because of any breach of its provisions or because of his or her execution, approval, or attempted execution of this Lease. |
18.17 |
Limitation of City’s Liability. Tenant,its Subtenants and Contractors must make no claims against the City for damages, charges, additional costs or fees or any lost profits or costs incurred by reason of delays or hindrances by the City in the performance of its obligations under this Lease. All Tenant, Subtenant, and Contractor personal property upon the Premises or upon any other part of the Airport, is at the risk of Tenant, Subtenant, or Contractor respectively only, and the City is not liable for any loss or damage to it or theft of it or from it. The City is not liable or responsible to Tenant, its Subtenants or Contractors, and Tenant waives, and will cause its Subtenants and Contractors likewise to waive, to the fullest extent permitted by law, all claims against the City for any loss or damage or inconvenience to any property or person or any lost profits any or all of which may have been occasioned by or arisen out of any event or circumstance, including theft, fire, act of God, public enemy, injunction, riot, strike, insurrection, war, court order, requisition or order of governmental body or authority, or water leakage, steam, excessive heat or cold, falling plaster, or broken glass; or any act or neglect of the City or any occupants of the Airport, including the Terminal or the Premises, or repair or alteration of any part of the Airport, or failure to make any such repairs or any other thing or circumstance, whether of a like nature or a wholly different nature. If the City fails to perform any covenant or condition of this Lease that the City is required to perform and, notwithstanding the foregoing, Tenant recovers a money judgment against the City, the judgment must be satisfied only out of credit against the Rent and other monies payable by Tenant to the City under this Lease, and the City is not liable for any deficiency except to the extent provided in this Lease and to the extent that there are legally available Airport funds. |
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18.18 |
Joint and Several Liability. If Tenant, or its successors or assigns, if any, is comprised of more than one individual or other legal entity (or a combination of them), then in that event, each and every obligation or undertaking stated in this Lease to be fulfilled or performed by Tenant is the joint and several obligation or undertaking of each such individual or other legal entity. |
18.19 |
Non-Recordation. Tenant must not record or permit to be recorded on its behalf this Lease or a memorandum of this Lease, in any public office. |
18.20 |
Survival. Any and all provisions set forth in this Lease that, by its or their nature, would reasonably be expected to be performed after the expiration or termination of this Lease survive and are enforceable after the expiration or termination. Any and all liabilities, actual or contingent, that have arisen in connection with this Lease, survive any expiration or termination of this Lease. Any express statement of survival contained in any section must not be construed to affect the survival of any other section, which must be determined under this Section. |
18.21 |
Force Majeure. Neither party is liable for non-performance of obligations under this Lease due to Force Majeure. As a condition to obtaining an extension of the period to perform its obligations under this Lease, the party seeking such extension due to a Force Majeure must notify the other party within twenty (20) days after the occurrence of the Force Majeure. The notice must specify the nature of the delay or interruption and the period of time contemplated or necessary for performance. The foregoing notwithstanding, however, in no event will Tenant be entitled to an extension of more than ninety (90) days due to a Force Majeure, without the express written consent of the Commissioner. |
[REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the City and the Tenant have hereto set their duly authorized hands and seals as of the date set forth above.
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WESTFIELD CONCESSION |
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MANAGEMENT, LLC, |
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a Delaware limited liability company |
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ATTEST: |
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ASST VP & Secretary |
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Mayor |
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Commissioner of Aviation |
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.22
Execution Version
MASTER CONCESSION DEVELOPER AGREEMENT
between
JFK NTO LLC
and
URW Airports JFK T1, LLC
June 10, 2022
TABLE OF CONTENTS
ARTICLE 1 – INTERPRETATION |
6 |
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1.1 |
Definitions |
6 |
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1.2 |
Interpretation |
17 |
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ARTICLE 2 – TERM |
18 |
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2.1 |
Term |
18 |
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2.2 |
Conditions to the Effective Date |
19 |
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2.3 |
Compliance with Lease Agreement |
20 |
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ARTICLE 3 – GRANT OF RIGHTS, USES AND PRIVILEGES |
22 |
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3.1 |
Premises |
22 |
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3.2 |
Scope of Services; Permitted Uses |
26 |
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3.3 |
Contractor’s Authority, Staffing and Support; No Conflicts of Interest |
29 |
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3.4 |
Information Security Handbook |
30 |
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3.5 |
Secured Areas and Security Requirements |
31 |
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3.6 |
[Reserved] |
32 |
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3.7 |
Implementation |
32 |
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3.8 |
Customer Service |
33 |
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3.9 |
Data Collection, Ownership and Sharing |
33 |
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3.10 |
Reporting |
34 |
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3.11 |
Material Impairment on the Business |
35 |
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3.12 |
Concession Sublease Administration and Compliance |
36 |
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3.13 |
Cleaning and Maintenance |
37 |
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3.14 |
Minimum Wage Requirements |
38 |
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3.15 |
Labor Harmony |
39 |
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3.16 |
Taxes |
41 |
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3.17 |
Street Pricing and Value for Money Requirements |
41 |
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ARTICLE 4 – COVENANTS OF THE CONTRACTOR |
43 |
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4.1 |
General |
43 |
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4.2 |
Governmental Requirements |
45 |
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4.3 |
Rules and Regulations |
45 |
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4.4 |
OFAC Compliance |
46 |
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4.5 |
No Interference with Public or Operation of Airport |
46 |
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4.6 |
Mutual Confidentiality Covenants |
47 |
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ARTICLE 5 – PAYMENT |
48 |
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5.1 |
Generally |
48 |
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5.2 |
[**] |
48 |
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5.3 |
[**] |
54 |
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5.4 |
Concessions Revenue Collection |
54 |
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5.5 |
[**] |
56 |
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5.6 |
Invoicing |
57 |
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5.7 |
[**] |
58 |
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5.8 |
Concession Security Deposit Accounts |
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5.9 |
Tax Treatment |
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ARTICLE 6 – RIGHTS OF SELF-HELP |
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6.1 |
Self-Help Rights |
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6.2 |
The Port Authority’s Step-In Rights |
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ARTICLE 7 – INSURANCE |
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7.1 |
Insurance Procured by the Contractor |
61 |
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ARTICLE 8 – AREAS AVAILABLE FOR CONTRACTOR USE |
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8.1 |
[**] |
64 |
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ARTICLE 9 – RIGHT OF ACCESS AND INSPECTION; AUDIT OF RECORDS |
65 |
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9.1 |
Right of Access and Inspection; Audit of Records |
65 |
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9.2 |
Maintenance and Inspection of Books and Records |
65 |
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9.3 |
Office of Inspector General and Integrity Monitor |
67 |
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ARTICLE 10 – NON-SOLICIT |
68 |
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10.1 |
Non-Solicitation |
68 |
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ARTICLE 11 – MBE/WBE AND ACDBE |
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11.1 |
United States Department of Transportation Regulation, 49 C.F.R. Part 23 |
68 |
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11.2 |
ACDBE Compliance Program |
68 |
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11.3 |
MBE/WBE Program Compliance |
70 |
|
11.4 |
Non-Compliance |
70 |
|
11.5 |
Compliance Standards |
70 |
|
|
|
|
ARTICLE 12 – LOCAL BUSINESS ENTERPRISE AND EMPLOYMENT OPPORTUNITY |
70 |
||
|
|
||
ARTICLE 13 – EMPLOYMENT; AFFIRMATIVE ACTION; EQUAL OPPORTUNITY |
71 |
||
|
|
||
|
13.1 |
Affirmative Action |
71 |
|
13.2 |
Non-Discrimination |
71 |
|
13.3 |
[Reserved] |
72 |
|
13.4 |
Other Agreements |
72 |
|
13.5 |
Non-Compliance |
72 |
|
|
|
|
ARTICLE 14 – FAA GRANTS |
72 |
||
|
|
||
|
14.1 |
FAA Grants |
72 |
|
|
|
|
ARTICLE 15 – CONTRACTOR INVESTMENT |
74 |
||
|
|
||
|
15.1 |
[**] |
74 |
|
15.2 |
[**] |
74 |
|
|
|
|
ARTICLE 16 – OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS AND MATERIALS |
75 |
||
|
|
||
ARTICLE 17 – LIENS |
75 |
||
|
|
||
ARTICLE 18 – BROKERAGE |
76 |
||
|
|
||
ARTICLE 19 – REPRESENTATIONS AND WARRANTIES |
76 |
||
|
|
||
|
19.1 |
Representations and Warranties of the Operator |
76 |
|
19.2 |
Representations and Warranties of the Contractor |
77 |
|
19.3 |
Performance Security |
79 |
ARTICLE 20 – EVENTS OF DEFAULT |
79 |
||
|
|
||
|
20.1 |
Contractor Events of Default |
79 |
|
20.2 |
Remedies for Contractor Event of Default |
82 |
|
20.3 |
Operator Events of Default |
83 |
|
20.4 |
Remedies for Operator Event of Default |
84 |
|
|
|
|
ARTICLE 21 – TERMINATION |
84 |
||
|
|
||
|
21.1 |
Termination |
84 |
|
21.2 |
Attornment |
86 |
|
21.3 |
Payments Due upon Termination |
87 |
|
|
|
|
ARTICLE 22 – INDEMNIFICATION |
87 |
||
|
|
||
|
22.1 |
Indemnification |
87 |
|
22.2 |
Contractor Obligations to Cease Performance |
88 |
|
|
|
|
ARTICLE 23 – DISPUTE RESOLUTION |
88 |
||
|
|
||
|
23.1 |
Dispute Resolution |
89 |
|
23.2 |
Participation in Dispute Resolution under Lease Agreement |
89 |
|
23.3 |
Attornment |
89 |
|
|
|
|
ARTICLE 24 – GENERAL |
89 |
||
|
|
||
|
24.1 |
Independent Contractor |
89 |
|
24.2 |
Currency |
90 |
|
24.3 |
No Liability |
90 |
|
24.4 |
Third Party Beneficiaries |
90 |
|
24.5 |
Further Assurances |
90 |
|
24.6 |
Severability |
90 |
|
24.7 |
Assignment |
91 |
|
24.8 |
No Port Authority Obligation |
92 |
|
24.9 |
Entire Agreement |
92 |
|
24.10 |
Consistency with Lease Agreement Requirement and Project Documents |
92 |
|
24.11 |
Survival |
93 |
|
24.12 |
Notices and Communications |
93 |
|
24.13 |
Counterparts |
94 |
|
24.14 |
Electronic Execution |
94 |
|
24.15 |
Waiver of Jury Trial |
94 |
|
24.16 |
Governing Law |
94 |
|
24.17 |
Amendments |
94 |
|
24.18 |
No Waiver. |
94 |
|
24.19 |
Successors and Assigns |
95 |
SCHEDULES
Schedule 1 Required Disclosures |
98 |
Schedule 2 Additional Mandatory Sublease Provisions |
99 |
EXHIBITS
Exhibit A – Services |
108 |
Exhibit B – [Reserved] |
109 |
Exhibit C – Premises |
110 |
Exhibit D –Proposed Plan For Phases B1/B2 |
115 |
Exhibit E – [Reserved] |
116 |
Exhibit F – Responsible Contractor Policy |
117 |
Exhibit G – Form of Contractor Certification |
120 |
Exhibit H– Contractor Investment Reimbursement |
123 |
Exhibit I – Required Delivery Condition |
124 |
Exhibit J – [Reserved] |
128 |
Exhibit K – [Reserved] |
129 |
Exhibit L – [**] |
130 |
Exhibit M – Form of Parent Company Payment Guaranty |
133 |
Exhibit N – [**] |
140 |
Exhibit O – Form of Concession Sublease |
146 |
Exhibit P – [**] |
74 |
Exhibit Q – Form of Security Deposit Letter Of Credit |
75 |
Exhibit R – [**] |
85 |
Exhibit S-1 – Labor Peace Agreement |
82 |
Exhibit S-2 Letter In Lieu of Exhibit S-1 |
83 |
MASTER CONCESSION DEVELOPER AGREEMENT
This MASTER CONCESSION DEVELOPER AGREEMENT (as amended from time to time in writing in accordance with the terms set forth herein by the Operator and the Contractor, this “Agreement”) is made and entered into as of June 10, 2022 (the “Effective Date”), by and between JFK NTO LLC, a Delaware limited liability company (the “Operator”) and URW Airports JFK T1, LLC, a Delaware limited liability company (the “Contractor”).
WHEREAS:
A.The Port Authority of New York and New Jersey (the “Port Authority”) and the Operator have entered into a Lease Agreement (the “Lease Agreement”, as the same may be amended, supplemented or otherwise modified from time to time in accordance with Section 2.3(4) of this Agreement) dated as of the date hereof between the Operator and the Port Authority, pursuant to which the existing Terminal One at the John F. Kennedy International Airport (the “Airport”) in the Borough of Queens in the State of New York will be demolished and replaced and the Operator will lease, design, construct, finance, maintain and operate the new Terminal One at the Airport in accordance with the terms and conditions of the Lease Agreement (all such activities, the “Project”).
B.The Operator desires to engage a qualified firm to exclusively plan, develop, design, directly sublease from the Operator and sub-sublease to Concession Sublessees (on behalf of the Operator) and manage the Concessions Program, including food and beverage, retail, duty free services, foreign exchange and all other commercial services and amenities at the Premises (as hereinafter defined) in the new Terminal One at the Airport (“Terminal One”) and the spaces used in connection with providing such services all in accordance with the then approved Comprehensive Concessions Plan, other than any commercial service or amenity constituting a Reserved Use.
C.The Contractor represents that it has the professional experience and expertise to provide the services that are required hereunder and further warrants that it is ready, willing and able to perform such professional services in accordance with the terms and conditions hereinafter set forth.
D.As a condition precedent to the effectiveness of this Agreement, the Contractor agrees to execute the Consent to Master Concession Developer Agreement (the “Consent to MCDA”) with the Port Authority, as required hereunder and under the Lease Agreement, authorizing the Contractor to perform the Services on the Premises (each as described hereunder).
E.This Agreement will constitute a “Key Contract” as defined in and for purposes of the Lease Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:
ARTICLE 1 – INTERPRETATION
1.1Definitions
“ACDBE” has the meaning given in the Lease Agreement.
6
“ACDBE Compliance Program” shall mean the Operator’s ACDBE compliance program, developed by the Operator.
“Activation Costs” has the meaning given in Section 15.2(l).
[**]
“Additional Extension Term” has the meaning given in Section 2.1(3).
[**]
[**]
“Affiliate” shall mean in the singular and “Affiliates” shall mean in the plural, for any Person, any other Person that directly or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with such Person.
“Agreement” has the meaning given in the Recitals.
“Airport” has the meaning given in the Recitals.
“Applicable Law” has the meaning given in the Lease Agreement.
“Applicable Standards” has the meaning given in the Lease Agreement.
[**]
“Background Intellectual Property” has the meaning given in Section 16.1.
“Badged Personnel” has the meaning given in Section 3.5(1).
[**]
“Baseline Schedule” has the meaning given in the Lease Agreement.
“Basic Lease” shall mean the Amended and Restated Agreement of Lease of the Municipal Air Terminals between The City of New York, as landlord, and the Port Authority, as tenant, dated as of November 24, 2004 and recorded in the office of the City Register of the City on December 3, 2004 under City Register File No.
7
2004000748687, as the same from time to time may have been or may be supplemented, amended and/or restated.
[**]
“Best Management Practice” shall mean the exercise of the degree of skill, diligence, prudence and foresight that would reasonably and ordinarily be expected from time to time from a skilled and experienced airport terminal operator or airport management services provider, as applicable, seeking in good faith to comply with its contractual obligations (including obligations to consistently operate and maintain premier, World-Class terminal facilities), complying with Applicable Law, Governmental Approvals and Applicable Standards, and engaged in the same type of undertaking under similar circumstances and conditions. Best Management Practice is not static but rather will change over time; provided, however, that Best Management Practice with respect to any particular activity will be determined at the time when such particular activity is performed.
“Blocked Person” has the meaning given in the Lease Agreement.
“Blocked Persons Laws” has the meaning given in the Lease Agreement.
“Books and Records” has the meaning given in the Lease Agreement.
“Calendar Year” shall mean the consecutive twelve (12) month period starting on January 1 and ending on December 31.
“City” and “City of New York” shall mean the municipal corporation of the State of New York known as the City of New York.
“City Insureds” shall mean for any type of insurance required under this Agreement, the City, the City’s officials and employees (but only if the Port Authority’s officials and employees are likewise insured), and the New York City Economic Development Corporation, a local development corporation formed pursuant to Section 1411 of the Not-for-Profit Corporation Law of the State of New York, or such successor entity as may be designated by the City.
“Claim” has the meaning given in Section 22.1(1).
“Collateral Agent” shall mean the collateral agent appointed by the Lenders under the Financing Documents.
“Completion Date” has the meaning given in the Lease Agreement.
“Comprehensive Concessions Plan” has the meaning given in the Lease Agreement.
“Concession Design” has the meaning given in Section 3.2(2).
“Concession Design Drawings” shall mean the preliminary design drawings for the Concession Design approved by the Parties as of the date hereof, including the Indicative Concessions Layout, together with any changes thereto as reasonably agreed by the Parties.
8
“Concession Security Deposit Accounts” shall mean the accounts in the name of the Operator established for the purpose of holding security deposits of Concession Sublessees pursuant to the terms of the Concession Subleases.
“Concession Storage Facilities” shall mean with respect to Phase A, the storage facilities relating to the concession space that are colored in purple and marked as “STORAGE” in Exhibit C, and with respect to Phase B1 and B2, the storage facilities relating to the concession space of such Phases as indicated by the Operator and commensurate with the Concessions Program in the applicable Phase, taking into consideration the relative size, location and functionality of the Concessions Program in Phase A and the Concession Storage Facilities made available for Phase A.
“Concession Sublease” has the meaning given in the Lease Agreement, provided that, for purposes of this Agreement, “Concession Sublease” shall mean each sublease between the Contractor and a Concessions Sublessee.
“Concession Sublessee” has the meaning given in the Lease Agreement, provided that, for purposes of this Agreement, “Concession Sublessee” shall mean each sublessee under a Concession Sublease between the Contractor and such sublessee.
[**]
“Concessions Opening Date” shall mean, with respect to a Phase, the earlier of one-hundred eighty (180) days after the date on which all Premises in such Phase is delivered in the Required Delivery Condition and the date on which all concessions space in such Phase is open for business by Concession Sublessees.
“Concessions Program” shall mean the commercial concession program at Terminal One to be implemented by the Contractor pursuant to the Implementation Plan and the terms of this Agreement.
[**]
“Confidential Information” has the meaning given in Section 4.6(1).
“Consent to MCDA” has the meaning given thereto in the Recitals.
“Contract Year” has the meaning given in Section 5.3(1).
“Contractor” has the meaning given in the Recitals.
“Contractor Counterparty” has the meaning given in Section 3.14(5).
“Contractor Data” has the meaning given in Section 3.9(3).
“Contractor Event of Default” has the meaning given in Section 20.1(1).
“Contractor Intellectual Property Rights” has the meaning given in Section 16.1.
[**]
9
“Contractor Marks” has the meaning given in Section 5 of Schedule 2 (Additional Mandatory Sublease Provisions).
“Contractor Materials” has the meaning given in Section 16.1.
[**]
“Contractor Notice of Street Pricing Violation” has the meaning given in Section 3.17(4)(a)(i).
“Contractor-Related Entity” shall mean (a) the Contractor, (b) the Contractor’s contractors, subcontractors of any tier, and Suppliers, (c) any other Persons performing any of the Services for or on behalf of the Contractor, (d) any other Persons for whom the Contractor may be legally or contractually responsible, (e) the Contractor’s Affiliates, (f) permitted Concession Sublessees and sub-sublessees of the Contractor and (g) the employees, agents, officers, directors, shareholders, managers and members (if the Contractor is a limited liability company), partners (if the Contractor is a limited partnership or a general partnership), authorized representatives, consultants, successors, assigns and invitees of any of the foregoing.
[**]
“Control”, “Controlling” “Controlled by” and “under common Control with” has the meaning given in the Lease Agreement.
“CPI” has the meaning given in the Lease Agreement.
“CPI Percentage Increase” has the meaning given in the Lease Agreement.
“DBO” has the meaning given in the Lease Agreement.
“Dedicated Terminal One Materials” has the meaning given in Section 16.3.
“Design Finishes Standards and Guidelines” has the meaning given in Section 3.2(2).
“Dispute” has the meaning given in Section 23.1.
“Dwell Time” means the period of time an Actual Enplaned Passenger spends at Terminal One, at or near commercial areas, including concession space, but excluding any time spent during which an enplaned passenger is at or near a boarding area for the purpose of boarding a flight.
“EDC” shall mean the New York City Economic Development Corporation, a local development corporation formed pursuant to Section 1411 of the Not-for-Profit Corporation Law of the State of New York, or such successor entity as may be designated by The City of New York under the Basic Lease.
“EDRC” has the meaning given in Section 3.2(2)(c).
“Effective Date” has the meaning given in the Recitals.
“Eligible Contractor Assignee” shall mean a Person that (i) is sufficiently financially responsible to support the obligations of the Contractor under this Agreement, (ii) has all necessary expertise, qualifications, experience and know-how to perform the Contractor’s obligations in accordance with this Agreement and the Lease Agreement, (iii) if a direct assignee of this Agreement, assumes all of the Contractor’s obligations under this Agreement, and (iv) is not a Prohibited Party.
10
“Emergency” has the meaning given in the Lease Agreement.
“EPR Claim” has the meaning given in Section 3.1(10).
“Equivalent Project Relief” has the meaning given in Section 3.1(10).
“Expiration Date” has the meaning given in Section 2.1(1).
“Extension Term” has the meaning given in Section 2.1(3).
“Fast-Track Procedure” has the meaning given in Section 23.1.
“Financing Documents” has the meaning given in the Lease Agreement.
“Governmental Approval” has the meaning given in the Lease Agreement.
“Governmental Authority” has the meaning given in the Lease Agreement.
[**]
“Guarantor- means Unibail Rodamco Westfield SE.
[**]
“Implementation Plan” shall mean the plan developed by the Contractor in collaboration with the Operator for the implementation of the commercial concession program at Terminal One.
“Indemnified Claim” has the meaning given in Section 1(a) of Schedule 2 (Additional Mandatory Sublease Provisions).
“Indemnified Parties” has the meaning given in Section 22.1(1).
11
“Indemnifying Party” has the meaning given in Section 22.1(1).
“Indicative Concessions Layout” means (i) with respect to Phase A, the indicative floorplan and layout for the Concessions Program as set forth on Exhibit C and (ii) with respect to Phase B1 and B2, an indicative concessions layout developed by the Operator in accordance with Section 3.1(7).
“Initial Extension Term” has the meaning given in Section 2.1(3).
“Intellectual Property Rights” means all (i) patents, patent disclosures, and inventions (whether patentable or not), (ii) trademarks, service marks, trade dress, trade names, logos and corporate names, together with all of the goodwill associated therewith, (iii) domain names, URLs and other digital identifiers, (iv) copyrights and rights in copyrightable works (including in software), and rights in data and databases, (v) trade secrets, know-how, and other confidential information, and (vi) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Key Duty Free Product Change” has the meaning given in Section 5.2(2)(c).
“Key Duty Free Products” has the meaning given in Section 5.2(2)(c).
“Lease Agreement” has the meaning given in the Recitals.
“Lender RNDA” has the meaning given in Section 2.2(2).
“Lenders” shall mean, collectively, each bank or financial institution, or any other Person that has provided a binding commitment to underwrite or provide Lessee Debt or any guaranty (excluding any guaranty of Lessee Debt provided by the Operator or an Affiliate thereof) or credit enhancement in respect thereof under the Financing Documents, together with their respective successors and assigns.
“Lessee” has the meaning given in the Lease Agreement.
“Lessee Debt” has the meaning given in the Lease Agreement.
“Lessee’s Basis of Design” has the meaning given in the Lease Agreement.
“Lien” has the meaning given in the Lease Agreement.
“Losses” has the meaning given in the Lease Agreement.
[**]
“Material Part” has the meaning given in the Lease Agreement.
[**]
“Minimum Wage Policy” has the meaning given in Section 3.14(1).
[**]
12
“OFAC” has the meaning given in Section 2(a)(xii) of Schedule 2 (Additional Mandatory Sublease Provisions).
“Operator” has the meaning given in the Recitals.
“Operator Data” has the meaning given in Section 3.9(2).
“Operator Event of Default” has the meaning given in Section 20.3.
[**]
“Operator Indemnified Party” shall mean each of the Operator or any successors as the Operator under this Agreement and their respective directors, officers, members, affiliates, agents, representatives, agents and consultants.
“Operator Monthly Statement” has the meaning given in Section 5.4(2).
“Operator Reserved Uses” has the meaning given in Section 3.2(11).
“PA DEP” has the meaning given in Section 3.8(3).
[**]
[**]
[**]
“Parties” shall mean the Operator and the Contractor. and “Party” shall mean any one of the Parties.
[**]
“Performance Guarantor” means URW Airports, LLC.
“Person” has the meaning given in the Lease Agreement.
“Personal Information” means information provided, disclosed or accessible to, or generated, collected or processed by, the Operator or the Contractor, respectively, or by or at the direction of any customer, employee, contractor or other third party that (i) alone or in combination with other information identifies or can be used to identify an individual (including names, signatures, addresses, telephone numbers, e-mail addresses, IP addresses and other unique identifiers, including credit or debit card numbers); or (ii) can be used to authenticate an individual (including employee identification numbers, social security numbers, government-issued identification numbers, passwords or PINs, financial account numbers, credit report information, biometric or health data, answers to security questions and other personal identifiers).
13
“Phase” shall have the meanings given to such terms in the Lease Agreement.
“Phase A” has the meaning set forth in the Lease Agreement.
“Phase A Concessions MAG Commencement Date” shall mean the later to occur of (x) the Concessions Opening Date for Phase A; provided that, without limiting any other obligation of the Contractor hereunder to open the Concessions Program, the Contractor shall use commercially reasonable efforts to meet the conditions set forth under this clause (x) as soon as reasonably practicable and (y) Phase A DBO; provided that the Port Authority, after submission by the Contractor of all information and deliverables required for the same, has granted all applicable permits necessary for all Concession Sublessees in such Phase to open for business.
“Phase A DBO” shall mean the Phase Opening Date for Phase A.
“Phase B1” has the meaning set forth in the Lease Agreement.
“Phase B1 Concessions MAG Commencement Date” shall mean the later to occur of (x) the Concessions Opening Date for Phase B1; provided that, without limiting any other obligation of the Contractor hereunder to open the Concessions Program, the Contractor shall use commercially reasonable efforts to meet the conditions set forth under this clause (x) as soon as reasonably practicable and (y) Phase B1 DBO; provided that the Port Authority, after submission by the Contractor of all information and deliverables required for the same, has granted all applicable permits necessary for all Concession Sublessees in such Phase to open for business.
“Phase B1 DBO” shall mean the Phase Opening Date for Phase B1.
“Phase B2” has the meaning set forth in the Lease Agreement.
“Phase B2 Concessions MAG Commencement Date” shall mean the later to occur of (x) the Concessions Opening Date for Phase B2; provided that, without limiting any other obligation of the Contractor hereunder to open the Concessions Program, the Contractor shall use commercially reasonable efforts to meet the conditions set forth under this clause (x) as soon as reasonably practicable and (y) Phase B2 DBO; provided that the Port Authority, after submission by the Contractor of all information and deliverables required for the same, has granted all applicable permits necessary for all Concession Sublessees in such Phase to open for business.
“Phase B2 DBO” shall mean the Phase Opening Date for Phase B2.
“Phase Opening Date” shall mean the date on which a Phase achieves DBO.
“Port Authority” has the meaning given thereto in the Recitals.
“Port Authority Change” has the meaning given thereto in the Lease Agreement.
14
“Port Authority Indemnified Parties” shall mean the City, EDC and the Port Authority, each Commissioner of the Port Authority and each officer, director, agent, employee and authorized representative of the City, EDC and the Port Authority.
“Port Authority Notice of Street Pricing Violation” has the meaning given in Section 3.17(6)(a)(ii).
“Port Authority Relief” has the meaning given in Section 3.11(1).
“Port Authority Reserved Uses” has the meaning given in Section 3.2(10).
“Port Authority Step-In Right” has the meaning given in Section 6.2.
“Predecessor Concession” has the meaning given in Section 3.15(5).
“Premises” has the meaning given in Section 3.1(1).
“Prime Rate” means the rate of interest per annum publicly announced from time to time by the Administrative Agent (as defined under the Financing Documents) as its prime rate in effect at its principal office in New York City. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer.
“Privacy and Security Laws” means all (a) Applicable Laws regarding (i) processing, collecting, accessing, using, disclosing, electronically transmitting, securing, sharing, retaining, destroying, transferring and storing Personal Information and (ii) data breach notification, and (b) trespass, computer crime and other Applicable Laws governing unauthorized access to or use of electronic data.
[**]
“Project” has the meaning given in the Recitals.
“Protected Information” has the meaning given in the definition of “Handbook” in the Lease Agreement.
“Qualified Financial Sponsor” shall mean any Person that either (i) maintains a credit rating with Moody’s Investors Service, Inc. or S&P Global Ratings Inc. that equals or exceeds Baa3 and BBB-respectively, or (ii) has a tangible net worth, including cash reserves, both computed in accordance with U.S. generally accepted accounting principles, of at least equal to Seven Hundred Million Dollars ($700,000,000.00).
“Qualifying Design Finish Change” has the meaning given in Section 3.2(2)(c).
[**]
“Recognized Mortgagee” has the meaning given in Section 83(b)(1) of the Lease Agreement.
“Rejected Indicative Concessions Layout” has the meaning given in Section 3.1(7).
[**]
15
[**]
“Required Delivery Condition” has the meaning given in Section 3.1(2).
“Replacement Guaranty” means any guarantee provided by any Additional Guarantor that replaces all or any portion of the Parent Company Payment Guaranty or the Parent Company Performance Guaranty, as applicable, substantially in the form of the Parent Company Payment Guaranty or Parent Company Performance Guaranty, as applicable, replaced thereby.
“Reserved Uses” has the meaning given in the Lease Agreement.
“Responsible Contractor Policy” shall mean the Responsible Contractor Policy attached hereto as Exhibit F.
“Revenue Account” shall mean either of the Pre-Completion Revenue Account or Post-Completion Revenue Account, each as defined in the Financing Documents.
“RPE” shall mean the quotient of the aggregate Operator Gross Rents for a particular period divided by the aggregate number of Actual Enplaned Passengers for such period.
“Rules and Regulations” has the meaning given in the Lease Agreement.
“Rules and Regulations Change” has the meaning given in the Lease Agreement.
[**]
“Secured Areas” has the meaning given in the Lease Agreement.
“Security Deposit” has the meaning given in Section 5.8(1).
“Self-Help Costs” has the meaning given in Section 6.1(1).
[**]
“Services” has the meaning given in Section 3.2(1).
“Shared Contractor Materials” has the meaning given in Section 16.3.
“Street Prices” has the meaning given in the Lease Agreement.
“Street Pricing” has the meaning given in the Lease Agreement.
“Subcontract” shall mean any contract between the Contractor and one or more third parties for the performance by such third party of any part of the Services, subject to the terms of this Agreement and the Lease Agreement relating to assignment and subcontracting, including, during the Concessions Program opening phase, coordination with Concessions Sublessees, Concessions Program management and retail design management.
16
“Subcontractor” shall mean the counterparty to a Subcontract.
“Supplier” has the meaning given in the Lease Agreement.
“Target Entity” has the meaning given in Section 3.14(2).
“TCAP Process” has the meaning given in the Lease Agreement.
“Term” has the meaning given in Section 2.1(1).
“Terminal One” has the meaning given in the Recitals.
“Third-Party Claim” shall mean any claim asserted against the Port Authority or a Port Authority Indemnified Party by any Person who is not a party to this Agreement.
“Transfer” shall mean the direct or indirect assignment, sale, transfer, tender, pledge, hypothecation, placement in voting trust, or other disposition of any asset, equity interest, right, title or other interest in (including, without limitation, any right or power to vote to which the holder of such right thereof may be entitled, whether such right or power is granted by proxy or otherwise).
“Unadjusted Concessions Revenue Rent” shall mean, with respect to the applicable period, the “Concessions Revenue Rent” that would be payable by the Operator to the Port Authority pursuant to the Lease Agreement without giving effect to any adjustments thereto under the Lease Agreement, including without limitation adjustments thereto pursuant to Sections 4(f)(3) and (5) of the Lease Agreement.
“Unibail-Rodamco-Westfield Sponsors” shall mean (1) Westfield America Limited Partnership, (2) URW WEA LLC, (3) Westfield U.S. Holdings, LLC, (4) one or more members of “Unibail-Rodamco-Westfield”, which is currently comprised of Unibail-Rodamco-Westfield SE and Unibail-Rodamco-Westfield N.V., (5) any successor by an assignment or merger or one or more persons resulting from the reorganization, division or restructuring, of any of the foregoing entities and (6) any private equity fund or other investment vehicle provided any such person is controlled by one or more of the foregoing entities.
1.2Interpretation
(1) |
In this Agreement, unless expressly provided otherwise: |
(a) |
Capitalized terms used but not defined in this Agreement have the meanings given to such terms in the Lease Agreement; |
(b) |
headings are for convenience only and do not affect interpretation; |
(c) |
a reference to any agreement, instrument or other document is to that agreement, instrument or other document as amended or supplemented from time to time; |
(d) |
a reference to this Agreement or any other agreement includes all exhibits, schedules, forms, appendices, addenda, attachments or other documents attached |
17
to or otherwise expressly incorporated in this Agreement or any other agreement (as applicable);
(e) |
a reference to an Article, Section, subsection, clause, exhibit, schedule, form or appendix is to the Article, Section, subsection, clause, exhibit, schedule, form or appendix in or attached to this Agreement; |
(f) |
a reference to a Person includes a Person’s permitted successors and assigns; |
(g) |
a reference to a singular word includes the plural and vice versa (as the context requires); |
(h) |
the words “including”, “includes” and “include” mean “including, without limitation”, “includes, without limitation” and “include, without limitation”, respectively; |
(i) |
the word “or” is not exclusive; |
(j) |
an obligation to do something “promptly” means an obligation to do so as soon as the circumstances reasonably permit, avoiding any unreasonable delay; and |
(k) |
in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” mean “to and including”. |
(2) |
This Agreement is not to be interpreted or construed against the interests of a Party merely because that Party proposed this Agreement or some provision of it or because that Party relies on a provision of this Agreement to protect itself. |
(3) |
The Parties acknowledge and agree that: |
(a) |
each Party is an experienced and sophisticated party and has been given the opportunity to independently review this Agreement with legal counsel; |
(b) |
each Party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions of this Agreement; and |
(c) |
if there is an ambiguity in or Dispute regarding the interpretation of this Agreement, this Agreement will not be interpreted or construed against the Party preparing it. |
ARTICLE 2 – TERM
2.1 |
Term |
(1) |
The term of this Agreement (“Term”) shall commence on the Effective Date and shall terminate and expire without notice to the Contractor on the date that is 10 years after the earlier of (i) the completion date of the final Phase that the Operator constructed pursuant to the terms of the Lease Agreement and (ii) the date set forth in the Baseline Schedule for completion of Phase B2, and in any event shall not be later than October 31, 2039 (said date and time, as it may be extended pursuant to paragraph (3) of this Article, hereinafter |
18
called the “Expiration Date”); provided that the Term may terminate earlier (i) on such date as the Operator and the Contractor may agree upon; (ii) in accordance with a termination pursuant to Section 20.2 or Section 20.4; or (iii) on the effective date of any revocation of the Port Authority’s consent to this Agreement, if any; provided, however. to the extent not prohibited by Applicable Law, this Agreement shall not terminate or expire in connection with any assignment or foreclosure of the Lease Agreement, or execution of a New Agreement, in accordance with Section 83 (Project Financing) of the Lease Agreement.
(2) |
The Operator shall deliver all Premises in each Phase to the Contractor in the Required Delivery Condition at least one-hundred eighty (180) days prior to the anticipated Phase Opening Date for such Phase. In the event that all Premises in a Phase is delivered in the Required Delivery Condition less than 180 days prior to the Phase Opening Date, and as a result, all concessions in such Phase are not able to be opened contemporaneously with such Phase Opening Date, the Term may, at the sole option of the Contractor, be extended for a number of days equal to the number of days between the Scheduled Phase Opening Date for such Phase (without giving effect to any extensions thereof that may be permitted or granted under the Lease Agreement) and the Concessions Opening Date for such Phase. |
(3) |
The Contractor shall have the option to extend this Agreement, by delivering a written notice of its election to extend to the Operator not more than eighteen (18) months but not less than twelve (12) months prior to the applicable Expiration Date, for (i) a period of seven (7) additional years subsequent to the Expiration Date (the “Initial Extension Term”) [**] |
(4) |
Upon the exercise by Contractor of its option to extend as aforesaid, no execution by either Party of any other document or instrument shall be required to effect such extension of the Term of this Agreement; provided, however, a supplement to the Consent to MCDA shall be a condition precedent to the effectiveness of any such extension. |
2.2 |
Conditions to the Effective Date |
(1) |
Conditions Precedent. The Effective Date of this Agreement shall be conditioned upon each of the following having been satisfied in full: |
(a) |
the delivery of a fully executed Consent to MCDA entered into with the Port Authority in form and substance acceptable to the Port Authority and the Contractor; and |
(b) |
no later than twenty (20) days prior to the Effective Date, the Contractor shall have delivered to the Operator, and the Operator shall have provided to the Port |
19
Authority (with a copy to the Port Authority’s Chief Ethics and Compliance Officer and General Counsel), the written certifications signed by an authorized officer of the Contractor in the form attached as 0 (Form of Contractor Certification) hereto. The Contractor acknowledges and agrees that if the Contractor is unable to provide such certifications in a timely manner, or if the Port Authority, after disclosing known relevant facts and information to the Operator, reasonably determines based on conclusive evidence known to it at the time, that the Contractor’s certifications are not accurate, the Port Authority shall have the right to disapprove and cancel this Agreement or if the Port Authority’s conclusion is reached after this Agreement has been executed and takes effect, the Port Authority shall have the right to terminate this Agreement effective immediately upon notice to the Contractor and the Operator; provided that the Port Authority has delivered such termination notice to the Contractor and the Operator within thirty (30) days after the Effective Date, it being acknowledged and agreed that the absence of a response from the Port Authority shall not be interpreted as a waiver of the Port Authority’s right to terminate this Agreement. The Port Authority may also conduct an investigation, make inquiries, undergo a vendor integrity check, require a mitigation plan acceptable to the Port Authority or commence any legal action or proceeding, as the Port Authority deems necessary or appropriate, for purposes of verifying compliance with the applicable certifications.
(2) |
Attornment. Prior to, and as a condition to, the effectiveness of any pledge or assignment of this Agreement to any Lender, the Operator shall cause such Lender to execute and deliver a recognition, non-disturbance and attornment agreement, by and between the Lender and Contractor, in form and substance reasonably satisfactory to the Contractor (each, a “Lender RNDA”). |
(3) |
Payments. Except for security deposits and any other amounts deposited with the Operator in connection with the payment of insurance premiums, real property taxes and assessments and other similar charges and expenses, the Contractor shall not pay rent or other sums payable under this Agreement to the Operator for more than one (1) month in advance. |
2.3 |
Compliance with Lease Agreement |
(1) |
General The Operator hereby represents and warrants that it has provided the Contractor with a complete copy of the Basic Lease and the Lease Agreement, in each case as in effect on the Effective Date, together with all exhibits, schedules and annexes thereto and all other documents and materials incorporated by reference therein or otherwise made a part thereof or applicable thereto, in each case to the extent the same could reasonably be expected to have a material effect on the Contractor’s rights or obligations under this Agreement. This Agreement shall be subject and subordinate to all of the terms, covenants, conditions and provisions of the Lease Agreement and the Basic Lease and to any interest superior to that of the Port Authority, and in each case, to the rights and obligations of the Port Authority thereunder. |
(2) |
Compliance with the Lease Agreement Without limiting the application of any requirements more specifically described in this Agreement, and notwithstanding the specification of similar or more limited requirements in this Agreement, the Contractor shall be bound by and subject to all the terms and provisions of the Lease Agreement as to the Contractor’s occupancy and use of the Premises or Terminal One or any portion thereof, and the Contractor’s operations and activities at the Airport in connection with this |
20
Agreement, as if the Contractor were the Operator under the Lease Agreement, including without limitation the obligations of the Operator under the Lease Agreement with respect to compliance with all Applicable Laws, Applicable Standards, Environmental Requirements, the conduct of prohibited activities and operations, rights of entry and nondiscrimination and restrictions upon subleasing. This Agreement shall not be modified, discharged, extended, restated or renewed except as permitted under and in accordance with the provisions of Section 20 (Assignment and Sublease) of the Lease Agreement. In the event of any inconsistency between this Agreement and the Lease Agreement, or between this Agreement and the Consent to MCDA, then as between the Operator and the Contractor in each and every such instance this Agreement shall supersede and control.
(3) |
Lease Provisions Incorporated into this Agreement The Contractor agrees to the matters set forth in Schedule 2 (Additional Mandatory Sublease Provisions), which forms part of this Agreement. |
(4) |
Amendments, Supplements and Other Modifications to the Lease Agreement. No amendment, supplement or other modification to the Lease Agreement shall be applicable to the Contractor’s obligations under this Agreement until such time as the Contractor has been provided reasonable notice of such amendment, supplement or other modification. If any proposed amendment, supplement or other modification to the Lease Agreement constitutes a Port Authority Change, Section 3.1(10) of this Agreement shall apply. If any proposed amendment, supplement or other modification to the Lease Agreement does not constitute a Port Authority Change, the Operator shall provide (to the extent provided to the Operator by the Port Authority) to Contactor with reasonable prior written notice of such proposed amendment, supplement or other modification to the Lease Agreement, and afford Contractor a reasonable period of time to assess the potential adverse effects of such amendment, supplement or modification to the Lease Agreement on the Contractor’s rights and obligations under this Agreement. The Operator shall consult with the Contractor prior to the effectiveness of any such amendment, supplement or other modification to the Lease Agreement, and shall use commercially reasonable efforts to address and resolve any concerns or issues identified by the Contractor. To the extent that any such amendment, supplement or modification of the Lease Agreement has the effect of amending or modifying this Agreement or the Contractor’s rights and obligations hereunder in any material respect without the Contractor’s written consent, then the Parties shall negotiate in good faith over a period of up to sixty (60) days [**] |
(5) |
Survival. The Contractor’s obligation to comply with the Lease Agreement in accordance with Section 2.3(3) shall survive the expiration or earlier termination of this Agreement with respect to obligations arising or accrued prior to such expiration or termination. |
(6) |
The Contractor shall not use the Premises hereunder for any use other than as permitted under the Basic Lease. |
21
(7) |
The Contractor shall use, operate, manage and maintain the Premises in a manner consistent with the Port Authority’s obligations under the first sentence of Section 28 of the Basic Lease. |
ARTICLE 3- GRANT OF RIGHTS, USES AND PRIVILEGES
3.1Premises.
(1) |
The Operator hereby grants to the Contractor (i) the spaces at Terminal One shown in Exhibit C and hereby made a part hereof, subject to and on the terms and conditions set forth in this Agreement; and (ii) the areas of the Concession Storage Facilities shown in Exhibit C attached hereto and hereby made a part hereof, such areas being collectively referred to as the “Premises”, in each case with such grant commencing when the Operator delivers such areas to Contractors in accordance with this Section 3.1. |
(2) |
The Operator shall deliver all Premises in each Phase substantially in accordance with the conditions set forth on Exhibit I, ready for further build out, with infrastructure, meters and connections for all necessary utilities, including without limitation hot and chilled water, potable water, gas, steam, water and sewage, electricity, exhaust, data (LAN and WLAN networks) fiber and distributed antenna systems available (the “Required Delivery Condition”). |
(3) |
Concession Storage Facilities delivered by the Operator to the Contractor shall be secure, appropriately climate-controlled and sufficient for the benefit of the Concession Sublessees that the Contractor contracts with on Operator’s behalf. |
(4) |
If the Operator at any time or times during the Term determines in its sole and absolute judgment that it requires any one or more portions of the Premises including without limitation any space which constitutes Concession Storage Facilities in order to meet or help meet governmental requirements, or in connection with its operation of Terminal One, or in connection with or to facilitate or improve operations in, of, or at Terminal One, or for one or more aircraft operators using the same, or to better accommodate the needs or interests of the public, then the Operator shall have the right to remove such space from the Premises which are the subject of this Agreement, provided that the Operator has reimbursed Contractor for one hundred percent (100%) of the Contractor Investment applicable to and invested in such removed space and 100% of any termination, breakage or similar payments that Contractor is required to pay Concession Sublessees affected by such removal (which may include reimbursement of capital investments by such Concession Sublessees). No such removal shall result, or be deemed to result, in a reduction or diminishment in any way of the Contractor’s responsibilities hereunder, [**] |
22
(5) |
Subject to the terms and conditions of this Agreement and the Port Authority’s rights under the Lease Agreement, the Contractor shall provide peaceful and quiet enjoyment of the Premises to the Concession Sublessees for the Term without hindrance or interruption by the Operator or any other Person lawfully or equitably claiming by, through or under the Operator. For purposes of this paragraph, the Port Authority shall not, by virtue of its third-party beneficiary rights or otherwise, be or be deemed to be a Person lawfully or equitably claiming by, through or under the Operator. |
(6) |
In the event that the Premises are subject to casualty or condemnation on account of destruction or damage and the Operator has not notified the Contractor of its intention to restore, replace or rebuild the Premises within ninety (90) days of such occurrence (as may be reasonably extended by the Operator for an additional thirty (30) days), the Operator shall reimburse the Contractor for any remaining unamortized Contractor Investment (or applicable portion thereof if less than the entire Premises is affected), calculated on a straight-line basis. |
(7) |
The Operator acknowledges that the Project as described in the Lease Agreement as of the Effective Date, and the Operator’s obligation to design and construct the Project in accordance with the Lease Agreement as in effect on the Effective Date and the Concession Design (including the Indicative Concessions Layout), are a material inducement to the Contractor’s execution, delivery and performance of its obligations under this Agreement. The Operator agrees that, subject to Section 3.1(10), below, it shall not request, agree to, make or implement any change to the nature of the Project as a world class international airport terminal or any material change to any Phase of the Project without the prior written consent of the Contractor if such change is inconsistent with the Indicative Concessions Layout or could reasonably be expected to adversely affect the quantum, quality, location, visibility or accessibility of the Concessions Program. |
The Operator shall consult with the Contractor in advance, through periodic meetings in the ordinary course of the D&C Work Period with, among others, the Parties’ designated representatives, to develop the Indicative Concessions Layout of Phase B1 and Phase B2 consistent with the drawings attached hereto as Exhibit D, as the case may be, and consistent with any applicable Governmental Requirements. To the extent the Contractor objects in writing to the Indicative Concessions Layout in respect of Phase B1 and/or Phase B2, as the case may be, the Contractor shall provide the Operator with a detailed explanation of the basis for such objections, including the impact on the Contractor’s rights and/or obligations hereunder (“Rejected Indicative Concessions Layout”), and the Parties shall endeavor to reach agreement as to the applicable Indicative Concessions [**]
(8) |
In addition to Section 3.1(7), above, the Operator acknowledges and agrees that the “Red Boundary” areas identified on the Indicative Concessions Layout outline critical areas |
23
inclusive of both the Premises and surrounding common and back-of-house areas that, collectively with the Premises, work together to deliver the intended functionality and revenue generation of the Concessions Program. Subject to Section 3.1(10), below, the Operator shall consult with the Contractor in advance, through periodic meetings in the ordinary course of the D&C Work Period with, among others, the Parties’ designated representatives, concerning any proposed or potential structural, operational, MEP, area-use or other changes that are made within such “Red Boundary” areas. The Contractor’s prior written consent shall be required with respect to any change in the design of the “Red Boundary” areas that could reasonably be expected to adversely affect the quantum, quality, location, visibility or accessibility of the Concessions Program.
(9) |
If the Operator makes any change to the nature of the Project or the capacity or general configuration of any Phase of the Project in violation of Section 3.1(7) or Section 3.1(8) of this Agreement, or otherwise interferes with or impedes the Contractor’s development and implementation of the Concessions Program in a manner that is consistent with the Concession Design, including by withholding, delaying or conditioning any consent of the Operator required under this Agreement, unless such change constitutes a Port Authority [**] |
(10) |
Equivalent Project Relief. |
(a) |
The Operator shall promptly notify the Contractor of any prospective Port Authority Change, including any change to the Project or any Phase of the type addressed in Sections 3.1(7) or (8) above that constitutes a Port Authority Change, that could reasonably be expected to have an adverse effect on the Contractor’s rights or obligations under this Agreement. With respect to any such Port Authority Change (each, a “EPR Claim”), whether notified to the Contractor by the Operator or independently identified by the Contractor, the Contractor shall only have, and shall be limited to, the same rights, benefits and entitlements, including to financial compensation or other relief, as the Operator actually receives with respect to such Port Authority Change subject to the terms of paragraph (b) below (“Equivalent Project Relief”). |
(b) |
[**] |
(i) |
The Contractor shall provide to the Operator with notice of any EPR Claim for Equivalent Project Relief within seven (7) Business Days of the Contractor having knowledge of the event giving rise to such EPR Claim. Such notice shall include sufficient detail to enable the Operator to review such EPR Claim, including (A) the claimed Port Authority Change and its date of occurrence in reasonable detail, (B) the estimated amount claimed as damages or impact to the schedule, (C) a detailed summary of additional information required to determine the scope of potential recoverable |
24
damages and (D) adequate written documentation supporting the basis for such EPR Claim and the monetary relief claimed.
(ii) |
To the extent any EPR Claim is submitted by the Contractor in accordance with clause (i) above, the Operator shall submit the Contractor’s EPR Claim to the Port Authority in accordance with the terms of the Lease Agreement. To the extent that the Port Authority determines that a Port Authority Change has occurred for which the Operator is entitled to compensation in an amount finally determined in accordance with the Lease Agreement, the Contractor shall be entitled, as the Contractor’s sole remedy for any such EPR Claim for Equivalent Project Relief, to recover from the Operator the amount that the Operator actually receives from the Port Authority that is actually attributable to such EPR Claim. Notwithstanding the foregoing, the Operator may decline to pursue any EPR Claim provided by the Contractor that the Operator determines (in its reasonable discretion) and informs the Contractor in writing would not be reasonably likely to be obtained from the Port Authority in accordance with the terms of the Lease Agreement. |
(iii) |
Any Dispute with respect to whether any EPR Claim submitted pursuant to this Section 3.1(10) by the Contractor should be pursued by the Operator shall be subject to the dispute resolution procedure set forth in Article 23 of this Agreement. If the dispute resolution procedure determines that an EPR Claim provided by the Contractor would have reasonably been likely to be obtained from the Port Authority in accordance with the terms of the Lease Agreement and the Operator failed to submit such EPR Claim, the Operator shall promptly submit such EPR Claim to the Port Authority or, if such EPR Claim is time-barred by the terms of the Lease Agreement, the Operator shall promptly pay the Contractor the amount of Equivalent Project Relief that the Contractor would have otherwise been entitled to receive with respect to such EPR Claim (as determined pursuant to a further dispute resolution procedure applying the applicable provisions under the Lease Agreement in respect of the Operator’s entitlement for monetary relief for such Port Authority Change as if the Operator had made such claim under the Lease Agreement). For the avoidance of doubt, the Contractor has no right to, and shall not, make any direct EPR Claim to the Port Authority. |
(iv) |
At the Contractor’s request, the Contractor shall participate in discussions with the Port Authority with respect to any EPR Claim relating to the Contractor’s rights and obligations under this Agreement if such participation is requested or approved by the Port Authority. |
(v) |
The Operator may settle any EPR Claim without the prior consent of the Contractor; provided that if in such circumstances the amount requested in the Contractor’s EPR Claim is greater than the amount for which the Operator settles such EPR Claim, then the Contractor may start a Dispute under the Dispute Resolution procedure established in this Agreement for the difference (if any) between (a) the amount of monetary relief that Operator has settled with the Port Authority for the Contractor’s EPR Claim and (b) the amount which the Contractor is entitled to obtain from |
25
the Port Authority under the Lease Agreement in respect of its EPR Claim (as determined pursuant to the Dispute Resolution procedure applying the applicable provisions under the Lease Agreement in respect of the Operator’s entitlement for monetary relief for such Port Authority Change as if the Operator had made such claim under the Lease Agreement).
(vi) |
The Contractor shall not be entitled to an Equivalent Project Relief to the extent a Port Authority Change arises by reason of the Port Authority acting in accordance with Applicable Laws, Applicable Standards (provided such Applicable Standards apply to other Airport facilities and are applied to the Contractor in a Non-Discriminatory Manner) or a contract binding upon the Port Authority entered into by the Port Authority in the ordinary course of business. |
(vii) |
If, for any reason, the Contractor fails to prosecute an EPR Claim within the time period required herein, the Contractor shall be deemed to have irrevocably and forever waived and released such EPR Claim or right to any adverse effects on costs, expenses and liabilities attributable to the corresponding Port Authority Change that the Contractor may otherwise have been able to claim hereunder as an EPR Claim. |
3.2Scope of Services; Permitted Uses.
(1) |
The Contractor is hereby retained and hired by the Operator, on an exclusive basis, to perform, subject to and in accordance with all of the terms and conditions of this Agreement, and the Contractor hereby agrees to perform, on an exclusive basis, the services set forth on Exhibit A (the “Services”) in the Premises. The Contractor shall perform the Services in accordance with Best Management Practices and the Comprehensive Concessions Plan and the other requirements and standards specified under the Lease Agreement at all times. The Operator shall provide Contractor with full access to all areas within and around Terminal One as may be reasonably necessary to permit the Contractor to perform its obligations and exercise its rights under this Agreement, in all cases subject to and in accordance with the applicable terms and conditions of the Lease Agreement and this Agreement. The Operator covenants and agrees that it shall not retain or hire any other Person to perform, or permit any other Person to perform, the Services during the Term of this Agreement. |
(2) |
Design Finishes Standards and Guidelines |
(a) |
[**] Such collaboration shall include meetings and workshops among the Parties and their respective designated representatives no less than once per month. |
(b) |
The Design Finishes Standards and Guidelines shall be subject to the Contractor’s approval (such approval or any objection or conditioned approval to be provided |
26
through such collaborative process and within such required time frames). which approval shall not be unreasonably withheld, delayed or conditioned.
(c) |
[**] |
(d) |
In the event that the Operator (acting reasonably) or the Port Authority reject any condition set forth under any Contractor’s conditioned approval, or disregard any objection raised by the Contractor, as set forth above, the Contractor may modify its conditions for Contractor’s approval of the applicable portion of the Design Finishes Standards and Guidelines no later than the earlier of the date that is (i) five (5) Business Days of the date of such Operator’s rejection and (ii) such shorter date as may be required to meet the design schedule for the applicable Phase (but in no event less than one (1) Business Day). For the avoidance of doubt, if the Contractor does not modify such conditions for Contractor’s approval of the applicable portion of the Design Finishes Standards and Guidelines within the said time frames, any such conditions or objections shall be disregarded and the applicable portion of the Design Finishes Standards and Guidelines most recently approved by the Operator and the Contractor shall apply (subject to the Port Authority’s right to reject the Contractor’s conditions or objections pursuant to this Section 3.2(2)). (x) [**] |
27
[**]
(e) |
[**] |
(f) |
[**] |
(g) |
At either Party’s request, the Contractor shall participate in discussions with the EDRC and related processes relating to the Concessions Program, and the Operator shall use commercially reasonable efforts to ensure such participation if requested; provided, however, that the Contractor shall not participate in discussions with the EDRC if such participation is not permitted or approved by the Port Authority or any other authorized member of the EDRC. |
(3) |
The Contractor shall have the right, in consultation with the Operator, to make design-related decisions and to lead on the second-level (non-structural) design of the commercial areas of the Premises, which may include passenger flow through commercial areas and environment design, concession space planning layouts/sizes and uses and merchandising, in all cases consistent with the Concession Design. |
(4) |
[**] The Contractor shall have the right, in consultation with the Operator and subject to the approval of the Port Authority to the extent required pursuant to the terms of the Lease Agreement, to select and direct design and advisory firms hired in connection with the Concession Design. Notwithstanding the foregoing, to the extent the Concession Design impacts any aspect of the operations of Terminal One, it shall be subject to the prior approval of the Operator. |
(5) |
If the number of Actual Enplaned Passengers exceeds the Maximum Enplanement Threshold, the Contractor and the Operator will mutually agree to expand the footprint of the Concessions Program as permitted by the Lease Agreement. |
(6) |
The Contractor agrees that nothing in this Agreement shall be deemed to imply that the Contractor has the right to make any alteration, demolition, installation, addition or improvement to any portion of the Premises, structural or non-structural, exterior or interior, except pursuant to the TCAP Process. Title to any improvements made by Contractor shall vest in The City of New York upon installation of the same in accordance with the provisions of the Basic Lease. |
(7) |
The rights of the Port Authority in the Premises are those granted to it by the Basic Lease, and no greater rights are granted or intended to be granted to the Contractor than the Port |
28
Authority (and in turn the Operator pursuant to the Lease Agreement) has power thereunder to grant. The Contractor shall not use any portion of the Airport for any use other than as permitted under the Basic Lease, the Lease Agreement and this Agreement. The Contractor shall exercise the privileges granted under this Agreement in a manner consistent with the Operator’s obligations under the Lease Agreement and the Port Authority’s obligations under the Basic Lease to the extent applicable to the Contractor’s obligations under this Agreement and the related Consent to MCDA.
(8) |
Port Authority Permits. The Contractor shall be prohibited from performing any activity or services at the Airport in connection with this Agreement for which the Port Authority requires the issuance of a Port Authority permit providing for payment of fees to the Port Authority unless the Contractor obtains such a Port Authority-issued permit if so required by and consistent with Applicable Law, Applicable Standards and/or Port Authority policy and pays such fees thereunder. If the Contractor performs any such activity or services at the Airport in connection with this Agreement without, or prior to, obtaining a Port Authority-issued permit in contravention of this Section 3.2(8), the Contractor shall pay any such fees due and payable to the Port Authority pursuant to such permit for any activity or services at the Airport performed without, or prior to, obtaining such permit; provided that payment of such fees shall not absolve the Contractor from the obligation to diligently take any and all action necessary to obtain such Port Authority-issued permit or to cease its permit-required activities immediately upon being advised that such a Port Authority permit shall not be granted. |
(9) |
The Contractor may make arrangements for the performance of services and functions only by organizations at the Airport authorized by lease, permit, contract or other Port Authority agreement to perform such services or functions. |
(10) |
Port Authority Reserved Uses. Section 74 of the Lease Agreement describes the Reserved Uses which are reserved therein to the Port Authority. The Contractor acknowledges that it has received, read and understands such provisions and agrees that it shall not take any action, or omit to take any action, which would result in a breach of the provisions of Section 74 of the Lease Agreement, which are incorporated by reference into this Agreement as if more fully set forth herein, including reservation by the Port Authority exclusively to itself and its designees of the right to implement, operate and maintain (i) any public or airline passenger-related transit facility on any portion of the Premises, and (ii) facilities, uses and services not currently contemplated or provided for in this Agreement, including hotel accommodations (the “Port Authority Reserved Uses”). |
(11) |
Operator Reserved Uses. As between the Operator and Contractor, the Operator hereby reserves exclusively to itself and its designees the right to implement, conduct, control and receive any fees, rents or profits, with respect to any and all uses (including advertising, subject to the terms of the Lease Agreement), operations or installations within the Common Use Lounges (the “Operator Reserved Uses”). |
3.3Contractor’s Authority, Staffing and Support; No Conflicts of Interest.
(1) |
The Contractor shall employ a full time, trained professional staff at all times during the Term of sufficient size, expertise, ability, suitability and experience to carry out its responsibilities hereunder. This shall include, but not be limited to, employing at the Premises, on full-time basis a general manager and one or more assistants, the employment thereof shall be made in accordance with Best Management Practices in Contractor’s |
29
reasonable discretion subject to consultation with the Operator, with sufficient authority and support, staff and appropriate equipment, supplies and means to manage and perform the Services and obligations of the Contractor with respect to the Premises, and the Concession Storage Facilities at Terminal One; to enter into and administer those Concession Subleases and, subject to any applicable permitting requirements, other agreements with Concession Sublessees and other third parties, to which the Contractor is a party or by which it is bound relating to operations at the Premises, as well as administration of agreements to be entered into by the Contractor with third parties for such third parties’ services relating to the Concession Storage Facilities at Terminal One; to enter into and administer agreements with Concession Sublessees and other third parties, if any, to which the Operator is a party or by which it is bound relating to operations at the Premises; to monitor and use commercially reasonable efforts to compel performance by the above-referenced Concession Sublessees and third parties under said leases and agreements relating to the Premises, the Concession Storage Facilities (inclusive of initiating and pursuing legal action to enforce (i) leases and agreements relating to Concession Sublessees and (ii) the Contractor’s agreements with third parties in connection with the Concession Storage Facilities), the foregoing responsibilities of the Contractor to include cooperation of Contractor with the Operator and its counsel in connection with such legal actions and to serve as on-site liaison with the Operator.
(2) |
The Contractor shall have the power and authority to perform the Services and other obligations under this Agreement, and to exercise its rights under this Agreement, on behalf of the Operator, but shall have no power or authority to amend or modify the Lease Agreement (and shall not be a third party beneficiary of the Lease Agreement) or any agreement embodying a Port Authority consent. In all events, an employee of the Contractor with managerial authority shall be available each day during standard business hours, 8:30am – 5:30pm, to meet with Operator and Port Authority representatives in person at the Premises and available at other times by telephone, with the ability in an Emergency relating to the Concessions Program to arrive at the Airport within two (2) hours after being called. |
(3) |
Neither the Contractor nor any Affiliate thereof shall conduct or have any interest whatsoever in any entity conducting a consumer service operation in any concession area, unless the Port Authority has explicitly approved in writing specific exceptions after having been furnished such information as it may require and subject to such qualifications, conditions, limitations and restrictions as part of any such approval. |
(4) |
The Operator shall not knowingly either employ or permit the employment of any management, supervisory or other personnel of the Operator (including but not limited to the Contractor or any Subcontractor, representative or agent of the Operator), whose employment constitutes a conflict of interest or whose actions are inconsistent with the highest level of honesty, ethical conduct or public trust or are adverse to the public interest. Notwithstanding the foregoing, the Operator shall be under no obligation to refrain from hiring any Person if to do so would be a violation of Applicable Law, or to terminate any Person if to do so would be a violation of Applicable Law or of any applicable right of such Person, contractual or otherwise. |
3.4Information Security Handbook
(1) |
To the extent the Contractor requires access to Port Authority information considered Protected Information, the Operator may provide Contractor with such access subject to |
30
the terms of the Lease Agreement applicable thereto. The Handbook and its requirements are hereby incorporated into this Agreement and will govern the possession, distribution and use of Protected Information.
3.5Secured Areas and Security Requirements
(1) |
The Contractor-Related Entities may be required to perform Services that would require access to security restricted areas, including Secured Areas. In the event any Contractor-Related Entity or any of the Contractor’s personnel requires access to any security restricted area, including any Secured Area, such Contractor-Related Entity or personnel shall obtain an airport security identification card as required under 49 C.F.R. §1542.205-213 prior to accessing any security restricted area, and the Contractor shall cause the Contractor-Related Entities to comply with the foregoing (the “Badged Personnel”). |
(2) |
The Operator, in accordance with Port Authority requirements, will require the Contractor to observe certain security procedures with respect to Secured Areas, which may include Contractor personnel (other than Badged Personnel) being escorted to, at, or from Secured Areas by Badged Personnel or other persons who have an airport security identification card as required under 49 C.F.R. §1542.205-213. |
(3) |
The Contractor shall notify the Operator at least forty-eight (48) hours prior to any proposed performance of Services in a Secured Area, unless the performance of such Services is carried out by Badged Personnel only. |
(4) |
The Contractor shall conform to the security procedures and protocols that the Operator may establish from time to time (whether by the direction of the Port Authority or otherwise) for accessing Secured Areas and escorting personnel. Before performing any Service, the Contractor shall request a description from the Operator of the Secured Areas that will be in effect on the date the work or service is to commence. |
(5) |
The Operator may amend the areas that are designated Secured Areas at any time during the Term and, except in cases of Emergency or a life, health, security, safety, environmental or operational deficiency or hazard, upon no less than ten (10) Business Days prior written notice to Contractor. |
(6) |
The Operator reserves the right to deny access to certain documents, sensitive security sites and facilities (including rental spaces) to any Person that declines or fails to abide by the Operator’s or Port Authority’s security procedures and protocols, any Person with a criminal record with respect to certain crimes or who may otherwise pose a threat to life, health, safety or security at the Terminal One specifically or at the Airport generally. The Operator also reserves the right to impose multiple layers of security requirements on the Contractor depending upon the level of security required, and may amend these requirements in its absolute discretion. |
(7) |
The Port Authority or the Operator may conduct random or scheduled examinations of business practices under this Section 3.5 in order to assess the extent of compliance with security requirements, Protected Information, procedures, protocols and practices, which may include, but are not limited to, verification of background check status, confirmation of completion of specified training, or a site visit to view material storage locations and protocols (or any combination); provided that to the extent such examinations are not mandated or performed by the Port Authority or any Governmental Authority each of |
31
whom shall not be subject to the standard specified in this proviso, such examinations shall be conducted in a manner that does not unreasonably interfere with Contractor’s operations and shall be limited to one time per Calendar Year unless Operator reasonably believes, in good faith, that Contractor is not in compliance with applicable security requirements.
3.6[Reserved]
3.7Implementation.
(1) |
The Contractor shall submit to the Operator (and the Operator shall submit to the Port Authority), no later than 365 days after the Effective Date, the Implementation Plan, which shall be consistent and compatible with (i) the Lessee’s Basis of Design, (ii) the Pro Forma Concessions Plan, (iii) the covenants set forth under Article 11, as applicable, (iv) the Form of Concession Sublease and (v) the Form of Consent to Concession Sublease. |
(2) |
The Implementation Plan shall include, among other things, a concept of operations and Actual Enplaned Passenger minimum boarding time strategy, jointly developed by the Parties, to maximize the Dwell Time and mitigate any impact of hardstand operations on Gross Rents. The Implementation Plan shall endeavor to achieve an Actual Enplaned Passenger boarding time of (i) during a Peak Period, seventy-five (75) minutes or less, and (ii) other than during a Peak Period, sixty (60) minutes or less. |
(a) |
Each of the Operator and the Port Authority shall be entitled to review and comment on the Implementation Plan and shall provide comments thereon (including comments regarding any deviations from (i) the Lessee’s Basis of Design, (ii) the Pro Forma Concessions Plan and (iii) the covenants set forth under Article 11, as applicable) or its approval thereto within sixty (60) days of receipt. The Contractor shall promptly address any of the Operator’s and the Port Authority’s comments made to the Implementation Plan. |
(b) |
The Contractor shall undertake all aspects of quality assurance and quality control in accordance with the approved Implementation Plan, this Agreement, Applicable Law, and Best Management Practices. |
(c) |
The Contractor shall cause each of its Subcontractors at every level to comply with the applicable requirements of the approved Implementation Plan. |
(3) |
The Contractor shall, in consultation with the Operator, draft the Comprehensive Concessions Plan required to be delivered by the Operator to the Port Authority under Section 20(d) of the Lease Agreement and shall prepare drafts of all written reports to be delivered in connection with such Comprehensive Concessions Plan or updates thereto. The Contractor shall not submit any draft of the Comprehensive Concessions Plan or any amendment, restatement, supplement or other modification thereto to the Port Authority without the Operator’s approval. |
(4) |
The Contractor and the Operator agree to cooperate in establishing and maintaining a coordination committee, whose function and members may change from time to time, throughout the Term, which will meet bi-weekly to review and discuss the Contractor’s Implementation Plan. Such committee shall also evaluate proposed Concession Sublessees selected by the Contractor against the general concept and commercial strategy of the then effective Comprehensive Concessions Plan. The Operator will have an approval right over |
32
each Concession Sublessee selected by the Contractor, such approval not to be unreasonably withheld, delayed or conditioned, provided that it shall not be unreasonable for Operator to withhold, delay or condition its approval primarily because the proposed Concession Sublessee is known to lack moral or ethical integrity, or is prohibited by the Port Authority from engaging in activities or operations at the Airport or a Prohibited Party. The Contractor shall give special consideration to contracting with service providers suggested by the Operator, but will be under no firm obligation to engage firms suggested by the Operator or any Prohibited Party. The Contractor will take into account the Operator’s concept of operations and other plans, as well as input from other consultants engaged by the Operator, in implementing the Services, and at all times will implement the Services in a manner consistent with the requirements of the Lease Agreement and the then-current Comprehensive Concessions Plan.
(5) |
In addition to and without limiting any other term or provision of this Agreement, it is hereby agreed that the Contractor shall, throughout the Term, comply with the Responsible Contractor Policy attached hereto as Exhibit F. |
3.8Customer Service.
(1) |
From time to time during the Term, the Operator shall conduct or cause to be conducted customer service surveys on-site at the Terminal, provided that the Operator shall conduct such customer service surveys in a manner that does not unreasonably interfere with the Contractor’s exercise of its rights or performance of its obligations under this Agreement. The Contractor shall not unreasonably interfere with, obstruct, delay or otherwise hinder the process of taking such surveys. Moreover, the Contractor shall participate and cooperate with the Operator and its designees with regard to such surveys, including but not limited to making space available, providing surveys to concession customers for completion, collecting surveys upon completion and delivering the same to the Operator, and otherwise undertaking managerial and administrative functions requested by the Operator related to concessions survey-taking. The Operator shall reimburse Contractor for all documented reasonable costs and expenses incurred by or on behalf of Contractor (if any) in connection with the above-described participation and cooperation. |
(2) |
The Contractor shall provide for training in concessions customer service techniques and other concession-related matters for its staff on a quarterly basis, and perform such other concessions customer service functions as may be identified in Exhibit A attached hereto. |
(3) |
The Contractor acknowledges that it has been advised that the Port Authority currently anticipates developing, or causing to be developed, a Digital Engagement Platform for use throughout the airport or portions thereof (a “PA DEP”) which the Contractor acknowledges is a Port Authority Reserved Use. The Contractor acknowledges that the Port Authority and the Operator shall continue to discuss the timing and development of a PA DEP prior to Phase A DBO and any alternatives for the Terminal One should the Port Authority elect to not develop a PA DEP. |
3.9Data Collection, Ownership and Sharing.
Subject to compliance with all Applicable Laws, including Privacy and Security Laws:
(1) |
the Operator, in consultation with the Contractor, will implement a system at Terminal One to collect general passenger data as described in Section 3.9(2) below with respect to |
33
concession locations, and the Contractor will include language in Concession Subleases to authorize the Operator to install devices to enable it to collect such data with respect to individual Concession Sublessees, provided that the specifics and implementation of such data collection shall be defined and updated from time to time by Operator in the Comprehensive Concessions Plan, subject to Contractor’s reasonable approval;
(2) |
the Operator will collect data on flight destinations, load factors and other similar passenger data it receives from airlines in a manner consistent with past practice as it, in its discretion, deems useful and appropriate to Contractor in connection with administering the Concessions Program under this Agreement (all such data, the “Operator Data”) and, as between the Operator and the Contractor, the Operator shall own all rights in the Operator Data; |
(3) |
the Contractor will, in consultation with the Operator, collect data on sales transactions by Concession Sublessees required by Section 3.10(1) of this Agreement, and will use commercially reasonable efforts to collect certain other data on sales transactions by Concession Sublessees that will be defined and updated from time to time by the Contractor in the Comprehensive Concessions Plan, subject to the Operator’s reasonable approval, which may include passenger behavior and count, passenger engagement with brand experience and other similar data points as it may deem useful and appropriate in connection with administering the Concessions Program under this Agreement (the “Contractor Data”) and, as between the Operator and the Contractor, the Contractor shall own all rights in the Contractor Data, which shall, in no event, include Operator Data; |
(4) |
the Operator hereby grants the Contractor a non-exclusive, royalty-free, non-transferable (except in connection with an assignment permitted pursuant to Section 24.7), non-sublicenseable (except in connection with a sub-contract authorized pursuant to Section 24.7), license for the Term to use the Operator Data to the extent useful to the Contractor in administering the Concessions Program under this Agreement, and the Contractor hereby grants the Operator a non-exclusive, royalty-free, non-transferable (except in connection with an assignment permitted pursuant to Section 24.7), non-sublicenseable, license for the Term (and, thereafter, in accordance with Section 21.1(5)) to use the Contractor Data to the extent related to the operation of Terminal One; |
(5) |
the Operator will share the Operator Data with the Contractor and the Contractor will share the Contractor Data with the Operator (i) in real-time, and in such formats and by such methods as they shall agree and (ii) if any Operator Data or any Contractor Data includes any Personal Information, (x) the Operator or the Contractor, respectively, shall share such data with the other Party pursuant to this Section 3.9(5) on an aggregated and anonymized basis in accordance with Privacy and Security Laws, (y) such other Party shall not request that such data be provided on any basis and in any format that is de-anonymized or that would enable such other Party to de-anonymize such data in violation of Privacy and Security Laws, and (z) such other Party shall not attempt to de-anonymize any data shared with it that would make such data Personal Information in violation of Privacy and Security Laws. |
3.10 |
[**] |
(1) |
[**] |
34
[**]
(a) |
[**] |
(b) |
Operator Gross Rents for the immediately preceding calendar month then ended; |
(c) |
Adjusted Gross Rents for the immediately preceding calendar month then ended: and |
(d) |
Documentation and data showing compliance with Schedule E (Affirmative Action; Equal-Opportunity; Minority Business Enterprise, Women-Owned Business Enterprise Requirements) to the Lease Agreement. |
(2) |
[**] |
(a) |
[**] |
(b) |
[**] |
(c) |
[**] |
(d) |
[**] |
3.11[**]
35
(1) |
[**] |
(2) |
[**] |
(3) |
[**] |
3.12Concession Sublease Administration and Compliance.
(1) |
Without limiting the generality of Exhibit A, the Contractor as part of its performance of the Services, shall ensure that the Concessions Program will at all times during the term best serve the public needs consistent with other world class international airports by providing a diverse offering of Concession Sublessees. |
(2) |
Contractor shall enter into, and have full power and authority to administer, Concession Subleases and exercise all rights and remedies of Contractor thereunder, including without limitation to terminate any Concession Subleases in accordance with its terms, to amend or extend any Concession Subleases, to waive, surrender, compromise or jeopardize any right or privilege of the Contractor under or with respect to any Concession Subleases, or to pursue any remedies or relief to which the Contractor shall be entitled thereunder or as a matter of law, including but not limited to accepting any compromise or settlement of an arrearage; provided, that such power and authority will be limited by the terms of the Lease Agreement as it relates to ACDBE Concession Sublessees pursuant to Section 20(d)(12) of the Lease Agreement.[**] |
(3) |
The Contractor’s Services shall include negotiation of and entry into Concession Subleases(using the form attached hereto as Exhibit O (Form of Concession Sublease) and meeting the other requirements of the Lease Agreement and otherwise in form satisfactory to the Operator and consented to by the Port Authority) directly with Concession Sublessees, coordination of Concession Sublessees’ design and construction work, and negotiation of |
36
relocations, amendments or modifications. No Concession Sublease shall be or be deemed directly enforceable against or binding upon the Operator or the Port Authority. No Concession Sublease shall be effective until a fully executed Concession Sublease, or amendment thereto, has been entered into between the Contractor and a prospective Concession Sublessee and, to the extent required pursuant to the terms of the Lease Agreement, a Consent to Concession Sublease has been entered into between the Port Authority and such Concession Sublessee. Any and all construction work done by or on behalf of Concession Sublessees at Terminal One shall be done in accordance with the TCAP Process and plans and specifications to be submitted to and approved by the Operator and, to the extent required pursuant to the Lease Agreement, the Port Authority, prior to the construction work, and shall require the payment of any fee imposed by the Port Authority for review of such plans and specifications, it being understood that until such approval has been obtained a Concession Sublessee shall continue to resubmit plans and specifications as required by the Operator or the Port Authority. [**]
(4) |
Notwithstanding that the Concession Subleases will be entered into between the Contractor and the Concession Sublessees, each such Concession Sublease will provide that, upon termination of this Agreement for any reason, and so long as the Lease Agreement remains in full force and effect, the Concession Sublease will automatically be assigned to the Operator. |
3.13Cleaning and Maintenance.
(1) |
Trash and Recycling. The Contractor shall, or shall cause Concession Sublessees to, remove daily from the Premises by means provided by the Contractor all garbage, debris and other waste material (solid or liquid) arising out of or in connection with the Concessions Program, and any such garbage, debris and other waste material not immediately removed shall be temporarily stored in a clear and sanitary condition, approved by the Operator and shall be kept covered except when filling or emptying them. The Contractor shall, and shall cause each Concession Sublessee to, exercise care in removing such garbage, debris and other waste materials from the Premises. The manner of such storage and removal shall always be subject in all respects to the continued approval of the Operator and any applicable provisions of the Lease Agreement. No equipment or facilities of the Operator shall be used in such removal unless with its prior consent in writing. No such garbage, debris or other waste materials shall be or be permitted to be thrown, discharged or disposed into or upon the waters at or bounding the Premises, Terminal One or the Airport. Without limiting any other obligation of the Contractor hereunder, the Contractor shall, and shall cause each Concession Sublessee to, comply with the commitment of the goal of zero waste to landfill at Terminal One in accordance with Applicable Law, Governmental Approvals, Applicable Standards and the terms of the Lease Agreement. |
(2) |
Maintenance and Repairs. The Contractor shall use commercially reasonable efforts to ensure that each Concession Sublessee performs preventive maintenance by regularly cleaning, repairing and maintaining (other than structurally): (x) all grease traps in all drainage pipes exclusively used in its operations at the Premises, whether such pipes are located on the Premises or elsewhere at Terminal One, and (y) all kitchen exhaust ducts including the replacement of all filters where such ducts are exclusively used by each |
37
Concession Sublessee in such operations and whether such ducts are located on the Premises or elsewhere at Terminal One. As part of each Concession Sublessee’s maintenance responsibilities, the hood and ventilation system servicing the Premises shall be cleaned and maintained from inside the unit through the ductwork to the roof top fan, on a monthly basis and at such Concession Sublessee’s sole cost and expense. In addition, should any corrective work be necessary for any portion of the grease traps, hood and ventilation system, each Concession Sublessee shall be responsible for the immediate repair and cost, whether such repair is required inside the unit or outside the unit. Each Concession Sublessee shall be required to provide documentation of all of such work relating to servicing during the preceding calendar month to the Contractor, which shall be supplied to the Operator on or before the twentieth (20th) day of each calendar month to the extent such documentation has in fact been provided by each Concession Sublessee to Contractor.
(3) |
Utilities. |
(a) |
Common Usage. The Operator shall install the necessary infrastructure and equipment for the supply of, and Contractor shall provide each Concession Sublessee, with access to, all necessary utilities including without limitation hot and chilled water, potable water, gas, steam, water and sewage, electricity, exhaust, data (LAN and WLAN networks) fiber and distributed antenna systems at the Premises where appropriate, to be used on a common basis among Concession Sublessees, all such installation to be without charge to the Contractor or the Concession Sublessees. |
(b) |
Specifically Identifiable Usage. There shall be no payments by the Contractor or any Concession Sublessee to the Operator for any Utilities which may be furnished to the Contractor or any Concession Sublessee by the or on behalf of the Operator, other than for Utilities provided by the Operator to the Concessions Program for which the Contractor, directly or through any Concession Sublessee, reimburses the Operator on a straight cost recovery basis with no markup, taking into account metering and sub-metering and Utilities management tools and staff for such Utilities. |
(c) |
Port Authority Not Obliged. The Contractor acknowledges and agrees that, except as may be specifically and expressly set forth in the Lease Agreement, and subject to the terms and conditions of the Lease Agreement, the Port Authority shall not be obligated to perform or furnish any services or utilities whatsoever in connection with this Agreement or the use and occupancy of any portion of the Premises hereunder including, without limitation, any obligation to provide or install or cause to be provided or installed any meters or sub-meters. |
3.14Minimum Wage Requirements
(1) |
The Port Authority has adopted a minimum wage policy (“Minimum Wage Policy”) for workers performing under non-trade labor service contracts at all Port Authority facilities. The Port Authority has also adopted a rule for implementing the Minimum Wage Policy. The Contractor has reviewed the Minimum Wage Policy and the implementing rule and agrees to comply with the Minimum Wage Policy and implementing rule, as the same may be amended. The Port Authority reserves the right to amend the Minimum Wage Policy and rule from time to time. |
38
(2) |
A failure to comply with this obligations set forth under this Section 3.14 shall constitute a breach of this Agreement and, accordingly, the Port Authority shall be entitled to all rights and remedies available to it under law, equity or otherwise in the event of such breach; provided that a failure of the Contractor or any Contractor Counterparty to comply with the Minimum Wage Policy (or any future amendment or modification to the Minimum Wage Policy), or any enforcement thereof with respect to a particular type of employment matter, shall not constitute a breach of this Agreement to the extent that the Port Authority has imposed the Minimum Wage Policy (or such amendment or modification) on, or enforced the Minimum Wage Policy (or such amendment or modification) against, the Contractor or such Contractor Counterparty, as the case may be (the “Target Entity”) in a manner that is inconsistent with the manner in which the Minimum Wage Policy (or such amendment or modification) is imposed on, or enforced against, other entities in the same category of business as the Target Entity, with respect to the same type of employment matter, at the Airport and the other airports for which the Port Authority is the airport operator. |
(3) |
Further, the Contractor acknowledges that the Port Authority has audit rights granted with respect to the Contractor’s operations at the Airport and that such audit rights extend to the Contractor’s compliance with its obligations hereunder concerning the Minimum Wage Policy and the implementing rule. |
(4) |
[**] |
(5) |
The Contractor further agrees that it shall include in any agreements entered into by the Contractor related to Covered Services (as defined in the Minimum Wage Policy), including, without limitation, subcontracts and subleases (but excluding agreements with government agencies or authorities) a clause which states that the party providing such services (the “Contractor Counterparty”) to the Contractor (i) has reviewed the Minimum Wage Policy and the implementing rule, (ii) agrees to comply with them, as the same may be amended from time to time, (iii) agrees to provide the Contractor and the Port Authority an annual statement, signed by a responsible officer of the Contractor Counterparty, certifying as to its own compliance with the obligations described in this paragraph, and (iv) acknowledges and agrees that the Port Authority shall be a third party beneficiary of such clause entitled to all rights and remedies available to it under law, equity or otherwise in the event of a breach of such clause by the Contractor Counterparty. [**] applicable, fails to comply with the Minimum Wage Policy or related implementing rule. |
(6) |
At the request of the Port Authority, the Contractor further agrees that it shall terminate any agreements entered into by the Contractor related to Covered Services (as defined in the Minimum Wage Policy), including, without limitation, subcontracts and subleases (but excluding agreements with government agencies or authorities), with any Contractor Counterparty which fails to comply with its contractual obligations related to the Minimum Wage Policy, as set forth in the foregoing paragraph (5). |
3.15Labor Harmony
39
(1) |
In connection with its operations at the Premises under this Agreement, the Contractor shall serve (and shall cause each Concession Sublessees to serve) the public interest by promoting labor harmony, it being acknowledged that strikes, picketing, or boycotts may disrupt the efficient operation of the Premises. |
(2) |
The Contractor recognizes the essential benefit to have the continued and full operation of the Airport as a whole and Terminal One as a transportation center. The Contractor shall give (and shall cause each Concession Sublessee to serve) notice to the Port Authority (to be followed by written notice and reports) of any and all impending or existing labor-related disruptions and the progress thereof as soon as practicable (but in no event later than five (5) days after the Contractor or Concession Sublessee, as applicable, becomes aware of such impending or existing labor-related disruptions). |
(3) |
If any type of strike, boycott, picketing or other labor activity is directed against the Contractor or any Concession Sublessee at the Airport or against any operations pursuant to this Agreement or any Concession Sublease, which, in the opinion of the Port Authority, adversely affects or is likely to adversely affect the operation of the Airport, any portion of the Premises under the Lease Agreement or the relevant concession space, or the operations of other permittees, lessees or licensees thereat, or presents a danger to the health and safety of users of the Airport or the Premises under the Lease Agreement, including persons employed thereat or members of the public, whether or not the same is due to the fault of the Contractor or such Concession Sublessee, and whether caused by the employees of the Contractor or by others, the Port Authority shall have the right, at any time during the continuance thereof to take all legal remedies available to it to end or arrange for the cessation of any such strike, boycott, picketing or other labor activity. |
(4) |
[**] |
(5) |
Employee Retention. Each Concession Sublease shall provide that, if the Concession Sublessee’s concession at the Premises is of the same type (i.e., food, retail, news/gifts or duty-free concession) as that of the immediately preceding concession operator at the Premises (the “Predecessor Concession”), the Contractor agrees to offer continued employment for a minimum period of ninety (90) days, unless there is just cause to terminate employment sooner, to employees of the Predecessor Concession who have been or will be displaced by cessation of the operations of the Predecessor Concession and who wish to work for the Concession Sublessee at the Premises. The foregoing requirement shall be subject to the Concession Sublessee’s commercially reasonable determination that fewer employees are required at the Premises than were required by the Predecessor Concession; provided, however, that the Concession Sublessee shall retain such staff as is |
40
deemed commercially reasonable on the basis of seniority with the Predecessor Concession at the Premises.
(6) |
The Contractor acknowledges and agrees that the Port Authority shall have the right to demand from Contractor or any Concession Sublessee, upon reasonable notice, documentation of the name, date of hire, and employment occupation classification of all employees covered by this provision. In the event Contractor or any Concession Sublessee fails to comply with this provision, the Port Authority shall have the right at any time during the continuance thereof to take such actions as the Port Authority may deem appropriate, including, without limitation, revocation of its consent to this Agreement and the applicable Concession Sublease and, accordingly, revocation of this Agreement or the applicable Concession Sublease. |
(7) |
Notwithstanding anything to the contrary in this Agreement, the obligations set forth under this Section 3.15 shall only apply with respect to a Concession Sublessee if the relevant Concession Sublessee employs ten (10) or more persons at the premises which are the subject of the relevant Concession Sublease. |
3.16Taxes
(1) |
The Operator shall collect, as appropriate, and pay any fees, taxes or special assessments which may be levied or assessed upon the Premises and the Concessions Program, and to save the Contractor said Premises harmless from any claim or liens in connection with such taxes and assessments. |
3.17 |
Street Pricing and Value for Money Requirements. |
As part of the Services,
(1) |
The Contractor in its operations pursuant to this Agreement shall not allow any Concession Sublessee to charge prices to customers in excess of 110% of Street Prices. “Street Prices” is defined as follows: |
(a) |
if the Concession Sublessee conducts a similar business in off-airport location(s) in the Greater New York City-Northern New Jersey Metropolitan Area (the “Metro Area”), “Street Prices” shall mean the price regularly charged by the Concession Sublessee for the same or similar item in the Metro Area; |
(b) |
if the Concession Sublessee does not conduct a similar business in off-airport location(s) in the Metro Area, “Street Prices” shall mean the average price regularly charged in the Metro Area by similar retailers for the same or similar item; |
(c) |
if neither the Concession Sublessee nor other similar retailers sell a particular item in the Metro Area, “Street Prices” shall mean the price regularly charged by the Concession Sublessee or similar retailers for the same or similar item in any other geographic area, with a reasonable adjustment for any cost-of-living variance between such area and the Metro Area; and |
(d) |
If a Concession Sublessee is in the business of selling duty-free goods, “Street Prices” shall mean the price regularly charged by the Concession Sublessee or |
41
other similar concession operator for the same or similar duty-free item at other major airports serving large urban areas in the United States of America, not including the Port Authority airports.
(2) |
[**] |
(3) |
The Contractor shall implement, and ensure that each Concession Sublessee implements, its Street Prices program in compliance with Rules & Regulations, General Manager’s Bulletins, and the Customer Service Standards Manual, including the postage of signage regarding the Street Prices program and the provision of point-of-sale data in accordance with the guidelines issued by the Port Authority. The Contractor shall, and shall cause each relevant Concession Sublessee, to submit to the Operator for delivery to the Port Authority, from time to time in accordance with the guidelines issued by the Port Authority, an annual (or other periodic) pricing report demonstrating compliance by such reporting entity with the aforementioned “Street Pricing” policy, as such policy may be amended from time to time. For purposes of establishing the Street Price of an item, any difference in the size or quality of a product or service shall constitute a basis for a price differential. |
(4) |
Each Concession Sublease (or Consent to Concession Sublease) shall also provide that: |
(a) |
Violation Notices |
(i) |
The Contractor and/or the Operator shall provide written notice (a “Contractor Notice of Street Pricing Violation”) to the Concession Sublessee if the Contractor and/or the Operator finds any areas of noncompliance with the “Street Pricing” policy during periodic price reviews, which may include spot-checks. |
(ii) |
The Port Authority shall provide written notice (a “Port Authority Notice of Street Pricing Violation”) to the Concession Sublessee, the Operator and its concession manager, if applicable, if the Port Authority finds any areas of non-compliance with the “Street Pricing” policy during periodic price reviews, which may include spot-checks by Port Authority staff or contractors. |
(iii) |
For purposes hereof, non-compliance with the “Street Pricing” policy may be in the form of failure to submit required forms and information for approval, failure to maintain required signage, and charging prices that are not in compliance with the “Street Pricing” policy. |
(b) |
The Concession Sublessee shall (x) correct any areas of non-compliance within forty-eight (48) hours of its receipt of any Contractor Notice of Street Pricing Violation or Port Authority Notice of Street Pricing Violation and (y) provide written documentation of the resolution of such non-compliance to the Port Authority, the Operator and its concession manager, if applicable. |
(c) |
The Contractor shall provide Corrective Actions Forms to the Operator to submit to the Port Authority with respect to all Street Pricing discrepancies, as noted in |
42
any Contractor Notice of Street Pricing Violation, as well as copies of the written documentation of the resolution of such discrepancies.
(d)In the absence of approved pricing consistent with the “Street Pricing” policy:
(i) |
The Port Authority may (x) designate similar retailers consistent with the “Street Pricing” policy, (y) calculate the average price for similar products or service consistent with the “Street Pricing” policy and (z) direct the maximum pricing that the Concession Sublessee charges for that product or service. |
(ii) |
The Concession Sublessee may submit to the Port Authority for the Port Authority’s consideration a written justification of its price determination, however the Concession Sublessee shall be required to and shall adopt the maximum prices established by the Port Authority until the evaluation of such justification is completed and alternative pricing is approved by the Port Authority. |
(e) |
If the Concession Sublessee does not make appropriate adjustments to comply with the “Street Pricing” policy within three (3) days of its receipt of any Contractor Notice of Street Pricing Violation or Port Authority Notice of Street Pricing Violation, the products and services which are not in compliance with the “Street Pricing” policy may be required to be removed from the Premises (as such term is defined in the Concession Sublease), and liquidated damages may be imposed by the Port Authority. In the event of repeated or continued failures to address non-compliance with the “Street Pricing” policy, liquidated damages may be imposed by the Port Authority for the period for which non-compliance with the “Street Pricing” policy has existed and continues to exist and the Concession Sublessee may be deemed to be in material breach of the Concession Sublease and/or Consent to Concession Sublease, as determined by the Port Authority. |
(5) |
The breach of the aforesaid requirements, as amended from time to time, shall be deemed a breach of the Contractor’s obligations under this Agreement. |
ARTICLE 4– COVENANTS OF THE CONTRACTOR
Except to the extent otherwise required under this Agreement, the Contractor covenants and agrees that during the Term it will, to the extent applicable to the Contractor or the Services:
4.1General
(i) |
In performing the Services in accordance with Best Management Practice: |
(ii) |
furnish good, prompt and efficient service hereunder, adequate to meet all demands therefor at the Premises; furnish said service on a fair, equal and non-discriminatory basis to all users thereof; and charge fair, reasonable and non-discriminatory prices for each unit of sale or service; provided that the Concession Sublessees may make reasonable and non-discriminatory discounts, rebates or other similar types of price reductions to volume purchasers; |
(iii) |
comply with Applicable Standards; |
43
(iv) |
not take or fail to take any action in respect of any Services that would cause the Operator and/or the Contractor to be in violation of Applicable Law, any Governmental Approval and Applicable Standards or the terms of the Lease Agreement or any other Project Documents, including the requirements set forth on Schedule E (Affirmative Action; Equal-Opportunity; Minority Business Enterprise, Women-Owned Business Enterprise Requirements) to the Lease Agreement; |
(v) |
act in good faith, issue instructions, grant approvals, exercise its other rights and perform its obligations under this Agreement in a timely and reasonable manner having due regard to the reasonable requirements of the Operator; |
(vi) |
refrain from taking any action that impedes or would impede the ability of the Operator to comply with any obligation under this Agreement or the Lease Agreement; |
(vii) |
use its best efforts in every proper manner to (and to cause each Concession Sublessee to) maintain, develop and increase the business conducted by the Contractor and such Concession Sublessee under this Agreement or its respective Concession Sublease, as applicable; |
(viii) |
not divert, or cause or allow to be diverted, any business from the Premises or the Airport; |
(ix) |
participate in meetings between the Operator and the Port Authority (if such participation is requested or approved by the Port Authority) concerning matters pertaining to the Contractor or the Services and the contractors working at the Airport; provided, that all direction to the Contractor shall be provided by the Operator but nothing herein shall limit the authority of the Port Authority to give such direction in its sole opinion, or take such action only as is necessary in an Emergency, or to remove a threat to life, health, safety, security or environmental hazard;. |
(x) |
comply with the Responsible Contractor Policy; |
(xi) |
if requested by the Port Authority or the Operator, cooperate with the Office of the Inspector General of the Port Authority; |
(xii) |
[**] |
(xiii) |
cause each Concession Sublessee to install and use such cash registers, sales slips, invoicing machines and any other equipment and devices, including without limitation computerized record-keeping systems, for recording orders taken, or services rendered, as may be appropriate to the Concession Sublessee’s business and necessary or prudent to keep accurate books and records, and without limiting the generality of the foregoing, for any activity involving cash sales, install and use cash registers or other electronic cash control equipment that provides for non-resettable totals; |
44
(xiv) |
permit in ordinary business hours the inspection by the officers, employees and representatives of the Port Authority and the Operator of any equipment used by any Concession Sublessee, including but not limited to cash registers and recording tapes, and, in the case of Operator, at times that do not unreasonably interfere with Contractor’s obligations and no more than one time per Calendar Year (unless a Contractor Event of Default has occurred and is continuing); |
(xv) |
cause each Concession Sublessee, sub-sublessee, tenant, licensee or permittee, for the preceding month to furnish on or before the twentieth (20th) day of each month following the commencement date of the operation a sworn statement of gross receipts arising out of the operations of the Concession Sublessee, sub-sublessee, tenant, licensee or permittee, for the preceding month; and |
(xvi) |
promptly observe, comply with and execute the provisions of any and all present and future governmental laws, rules, regulations, requirements, orders and directions which may pertain and apply to its operations or the use and occupancy of the Premises. |
4.2Governmental Requirements
(1) |
The Contractor shall promptly, but in no event later than within forty-eight (48) hours following receipt thereof by Contractor, deliver any notice of violation, warning, notice, summons, or other legal process for the enforcement of any governmental laws, rules, regulations, requirements, orders, directions, enactments, ordinances, or resolutions, relating to the Services, to the Operator for examination. Nothing in this Section 4.2 shall release the Contractor from compliance with any other provision of this Article respecting to governmental requirements. |
4.3Rules and Regulations
(1) |
The Contractor shall observe and obey (and will require all its officers, employees, members, managers, guests, patrons, invitees and seconded personnel, business visitors, contractors, Suppliers and furnishers of services and those doing business with it, to observe and obey) the existing Rules and Regulations, the Airport Security Guidelines Manual, the Applicable Standards and Rules and Regulations Changes, revisions to the Airport Security Guidelines Manual and Applicable Standards of the Port Authority governing the conduct and operations of the Operator and others on the Premises and/or at the Airport in connection with this Agreement and/or the occupancy or use of the Premises as may from time to time during the letting be promulgated by the Port Authority in accordance with the Lease Agreement. The obligation of the Contractor to require such observance and obedience on the part of its guests, patrons, invitees, business visitors, contractors, Concession Sublessee and furnishers of services, and those doing business with it, shall apply only while such persons are on the Premises or are otherwise engaged in activities in connection with this Agreement whether within the Airport or otherwise. The Contractor acknowledges that pursuant to the Lease Agreement the Port Authority agrees that, except in cases of Emergency or a life, health, security, safety, environmental or operational deficiency or hazard, it will give notice to the Operator of every Rules and Regulations Change adopted by it at least twenty (20) days before the Operator shall be required to comply therewith, (i) by delivery of a copy thereof to the Operator, (ii) by making a copy available at the office of the Secretary of the Port Authority (with a notice to the Operator informing Operator that such copy is available at such office) or (iii) by |
45
making an electronic copy available on the Port Authority website www.panynj.gov (with a notice to the Operator informing the Operator that such copy has been posted to the website), and the Operator shall furnish such notice to the Contractor and the Contractor will be required to comply with such Rule and Regulation Change.
(2) |
The Contractor acknowledges that pursuant to the Lease Agreement, the Port Authority reserves the right to require the Operator to provide written reports detailing the Operator’s compliance with existing Rules and Regulations and airport standards of the Port Authority and, if non-compliance is shown in such reporting or otherwise becomes known to the Port Authority, to require the Operator to provide a remedial plan to become compliant forthwith, to be approved by the Port Authority in its sole discretion. The Contractor shall provide the Operator reports concerning activities in connection with this Agreement or the Services sufficient to enable the Operator to provide the reports it is required to furnish to the Port Authority under the Lease Agreement. |
(3) |
The Contractor shall not perform (and ensure that no Contractor-Related Entity performs) any activity or services at the Airport for which the Applicable Standards, Reference Documents, or Rules and Regulations requires the issuance of a Port Authority permit unless the relevant Contractor-Related Entity has obtained the Port Authority-issued permit and paid any relevant fees associated with the permit. |
4.4OFAC Compliance
(1) |
The Contractor covenants that during the Term none of the Contractor, nor any Affiliate of the Contractor, nor any other Person Controlling, Controlled by or under common Control with the Contractor shall (i) become a Blocked Person nor (ii) engage in any dealings or transactions with Blocked Persons in violation of any Blocked Persons Laws. In the event of any breach of the aforesaid covenant, the same shall constitute a default under this Agreement which may subject the Contractor to termination of this Agreement. |
(2) |
In the event of any termination by the Operator as authorized under applicable sanctions law requirements or enforced pursuant thereto, or in accordance with the terms hereof, the Contractor shall, immediately on receipt of the Operator’s termination notice, cease all use of and operations permitted under this Agreement and surrender possession of the Premises to the Operator without the Operator being required to resort to any other legal process. |
(3) |
The Contractor shall indemnify and hold harmless the Operator Indemnified Parties and the Port Authority Indemnified Parties from and against any and all Claims arising out of, relating to, or in connection with the Contractor’s breach of any of its representations, warranties or covenants made in this Section 4.4. |
(4) |
The provisions of this Section 4.4 shall survive the expiration or earlier termination of this Agreement. |
4.5No Interference with Public or Operation of Airport
(1) |
The Contractor shall not interfere with the efficient operation of, or public access to, the Airport falling outside the scope of the Services (including interfering with or causing delays to vehicular or pedestrian traffic) unless agreed in advance by the Port Authority; provided that with respect to the Services, the Contractor shall engage with the Port Authority only through the Operator or as otherwise directed by the Operator. |
46
(2) |
If the Operator determines that the Contractor has interfered with or is interfering with the efficient operation of, or public access to, the Airport falling outside the scope of the Services (including interfering with or causing delays to vehicular or pedestrian traffic): |
(a) |
the Operator may direct the Contractor to take such steps as the Operator determines are necessary to cease causing that interference (including directing the Contractor to remove or relocate any equipment or materials that are causing the interference); and |
(b) |
the Contractor shall promptly comply, or ensure that the Contractor complies, with any direction given by the Operator under Section 4.5(2)(a). |
4.6Mutual Confidentiality Covenants
(1) |
Each Party recognizes that in connection with the performance of its obligations under this Agreement, it may receive trade secrets and/or confidential or proprietary information owned or controlled by the other Party (including information of or relating to third parties such as airlines operating at Terminal One, or Operator Data, Contractor Data or proprietary market research with respect to the users of Terminal One or the Airport) and that the disclosure of such secrets and information to third parties may be damaging to the other Party. Subject to the exclusions set forth below, all such information that is designated as confidential or that otherwise would be reasonably assumed to be confidential in nature will constitute “Confidential Information”. Notwithstanding the foregoing, Confidential Information will not include: |
(a) |
information that is in, or which comes into, the public domain other than by reason of a breach of this Agreement or of any other duty of confidentiality relating to such information; |
(b) |
information obtained from a third party without that third party being under an obligation (express or implied) to keep the information confidential; and |
(c) |
information that is lawfully in the possession of the other Party before the date of this Agreement and in respect to which that Party is not under an existing obligation (express or implied) of confidentiality. |
(2) |
Each Party agrees not to disclose to any third party any Confidential Information belonging to the other Party except to the extent that such disclosure is authorized in writing by the other Party or to the extent that the disclosing Party is required to do so: |
(a) |
to enable the disclosing Party to perform its obligations under this Agreement, the Lease Agreement or the Consent to MCDA; |
(b) |
by any Applicable Law or by a court, arbitral or administrative tribunal in the course of proceedings before it; |
(c) |
by any regulatory body acting in the course of proceedings before it or any regulatory body acting in the course of its duties; |
(d) |
in order to give proper instructions to any professional advisor of that Party who also has an obligation to keep such Confidential Information confidential; or |
47
(e) |
in the case of the Operator, (i) for the purpose of any financing or refinancing of Lessee Debt, complying with any Financing Documents or effecting any sale or issuance of shares or debt with respect to the Operator, and (ii) for the purpose of complying with any Project Document (including the Lease Agreement), provided, in each case, that such Confidential Information is disclosed on a confidential and need-to-know basis. |
(3) |
Appropriate confidentiality obligations will be included in service agreements and consulting agreements as well as any subcontracting arrangements entered into in connection with the Project. The disclosing Party will give at least thirty (30) days’ prior notice to the other Party of any information contained in documents required to be filed with public authorities which would result in the dissemination of Confidential Information. |
(4) |
The Parties’ obligations regarding Confidential Information will survive the Term of this Agreement for a period of three (3) years. |
(5) |
Each Party agrees that the provisions and restrictions contained in this Section 4.6 are necessary to protect the legitimate continuing interests of a disclosing Party, and that any breach by a receiving Party of its obligations hereunder regarding Confidential Information will result in irreparable injury to a disclosing Party for which a remedy at law may be inadequate and that, in addition to any other rights or remedies available under this Agreement and any relief at law that may be available to a disclosing Party for such violation or breach, a disclosing Party will be entitled to apply to a court of competent jurisdiction for injunctive and other equitable relief to prohibit disclosure by the receiving Party of any such Confidential Information (without any requirement that such disclosing Party provide any bond or other security). |
(6) |
The Parties will not issue (and will cause their respective employees, agents, advisors, consultants and contractors not to issue) any press or publicity release or any advertisement, or publish, release or disclose any photograph or other information, in each case concerning or related to this Agreement without the consent of the other Party. |
ARTICLE 5 – PAYMENT
5.1Generally.
(1) |
All amounts payable to either Party under this Agreement shall be paid in arrears on a monthly basis. |
(2) |
The Contractor shall not pay rent or other sums payable under this Agreement to the Operator more than one (1) month in advance. |
(3) |
At any time that the Operator permits Contractor to serve as a collection agent for the Operator with respect to all amounts paid and payable by Concession Sublessees and any other amounts that would otherwise be paid or payable directly to the Operator hereunder, Contractor shall be deemed, and shall hold itself out as, a fiduciary vis-a-vis the Operator and indirectly, a fiduciary vis-à-vis the Port Authority, and shall hold all such rents and other fees received by it in trust for the Operator and the Port Authority. |
5.2[**]
48
(1) |
[**] |
[**]
(2) |
[**] |
(a)[**]
(b)[**]
(i)[**]
49
[**]
(ii)[**]
(c)[**]
(i)[**]
(ii)[**]
(iii)[**]
(d)[**]
(i)[**]
50
[**]
(ii)[**]
(e)[**]
(i)[**]
(ii)[**]
(f)Change in Premises.
As provided for in Section 3.1(4) or Section 3.1(9) of this Agreement.
(g)[**]
51
(i)[**]
(ii)[**]
(h)[**]
(i)[**]
52
[**]
(ii)[**]
(3)[**]
(a)[**]
(b)[**]
(4)[**]
(a)[**]
53
[**]
5.3[**]
(1)[**]
(a)[**]
(b)[**]
(c)[**]
(d)[**]
5.4Concessions Revenue Collection.
(1) |
Upon Phase A DBO, the Contractor shall assume responsibility for, and be deemed a collection agent for, the rent collection from the Concession Sublessees in the Premises. The Contractor shall direct each Concession Sublessee to remit their rental payments and fees payable to the Operator directly to the Operator’s “Pre-Completion Revenue Account” or “Post-Completion Revenue Account”, as applicable, as identified in the Operator’s Financing Documents and notified to the Contractor. The Contractor as part of the Services shall monitor such remittances and take all necessary steps to ensure full payment of all rental payments and fees due from Concession Sublessees on a monthly basis. To the extent any rental payments, fees or other monies are remitted to the Contractor: (A) the Contractor shall hold all such rentals and fees received by it in a separate account established in trust for the Operator (and indirectly for the Port Authority), in which the Contractor must not commingle such rent, fees and other moneys with any other funds, at an institution acceptable to the Port Authority having an office in the Port of New York District and qualified to do business in the State of New York, and the Contractor shall thereafter remit such rentals and fees no less frequently than monthly directly to the Operator’s “Pre-Completion Revenue Account” or “Post-Completion Revenue Account”, as applicable, as identified in the Operator’s Financing Documents and notified to the |
54
Contractor, (B) the Contractor shall obtain additional protections on behalf of the Operator providing for access by the Operator to the revenues on deposit in such account (to the extent of its interest) in the event of insolvency, appointment of a receiver, bankruptcy or creditors’ liens affecting the Contractor, (C) the Contractor shall obtain insurance protecting against employee dishonesty, embezzlement, theft, and the like in amounts and otherwise in a form acceptable to the Port Authority, and naming the Port Authority and the Operator as additional loss payees thereunder, (D) the Contractor’s fees to be paid by the Operator may not be withheld at any time by the Contractor from any amounts due to the Port Authority, and (E) the Contractor shall comply with any other requirements of the Port Authority and any other reasonable requirements of the Operator.
(2) |
On the 15th day of each calendar month during the Term and any months following the expiration or earlier termination necessary to account for all Concession Sublessees’ payments received, the Operator shall render to the Contractor a statement, in a form reasonably acceptable to the Contractor and Operator and attached to the Comprehensive Concessions Plan delivered to the Port Authority pursuant to the Lease Agreement at least eighteen (18) months prior to the projected Completion Date of the D&C Work (the “Operator Monthly Statement”). The Operator Monthly Statement shall identify all funds received into the relevant Revenue Account from Concession Sublessees in the payment of rents/fees, including any fees assessed to the Concession Sublessees for services performed by third party vendors, the Concessions Revenue Rent and the Unadjusted Concessions Revenue Rent, together with reports of the footfall traffic to each concession location, in each case with respect to the immediately preceding calendar month. |
(3) |
[**] Concession Sublessees shall be identified by name, type (e.g., retail, food and beverage) and location. The items which constitute deposits from Concession Sublessees and, accordingly, the items which shall be reflected on such monthly fee statements as Gross Rents, shall include the following: |
(a) |
any and all basic rent received from the Concession Sublessees for the month in which the Contractor Monthly Statement is made (together with any arrearages in basic rent received from Concession Sublessees for any prior periods) (basic rent (also referred to as fixed rent or minimum guaranteed rent) is payable from Concession Sublessees in monthly installments in advance on the first day of each current month); |
(b) |
any and all percentage rent received from Concession Sublessees for the prior month (percentage rent is payable following the end of the month for which percentage rent is due, i.e., the prior month); and |
55
(c) |
any and all other fees and payments received from Concession Sublessees (for example, late fees, promotion/marketing fees, food court maintenance fees, and other third party vendor fees (if any are pre-approved by the Operator). |
5.5Revenue Sharing.
(1) |
To the extent not paid by the Account Bank pursuant to the terms of the Financing Documents, Operator shall pay the Port Authority the Concessions Revenue Rent in accordance with the Lease Agreement, subject to the ability to defer such payment in accordance with Section 4(f)(5) of the Lease Agreement. |
(2) |
[**] |
(3) |
[**] |
[**]
The RPE amounts set forth in the table above will be adjusted annually, commencing January 1 of each year after 2019, by the CPI Percentage Increase.
56
(4)[**]
(5)[**]
5.6[**]
(1)[**]
[**]
[**]
[**]
(2)[**]
(a)[**]
(b)[**]
[**]
[**]
(c) |
Where reasonably sufficient additional information and documentation requested by the Operator in accordance with Section 5.6(2)(b)(ii) is not received by the Operator within the period set out in Section 5.6(2)(b)(ii), the date for payment of the amount for which such information has been requested will be extended by the |
57
number of additional days taken by the Contractor to provide such requested information and documentation.
(3)[**]
(a)[**]
[**]
[**]
[**]
[**]
5.7Disallowed Charges
Neither the Operator nor the Contractor shall have the right to impose a rent or other charge (whether basic rental, percentage rental or additional rental of any kind) to any Concession Sublessee arising out of or relating to the cost and expense of maintaining, repairing, lighting and/or operating any portion of the Premises which is not specifically contained within a concession area footprint at any portion of Terminal One, whether such rent or charge is characterized as “common area maintenance” or any other identifier. Accordingly, by way of example, the Operator’s (or the Contractor’s) expenses and costs to maintain, repair and operate the fingers/corridors/holdrooms or any other area of Terminal One (except only indirectly through the usual base and percentage rental terms of a Concession Sublease) or to provide a security or security deposits in connection with the Lease Agreement shall be borne exclusively by the Operator (or the Contractor) and may not be chargeable to any Concession Sublessee. In furtherance of the foregoing, this Agreement shall not, nor shall any Concession Sublease, without the prior written consent of the Port Authority, include any charges payable by any Concession Sublessee with respect to the Operator’s or Contractor’s costs incurred in connection with (i) repair, maintenance, lighting, waste management and removal and/or operation costs of any designated food court area utilized by passengers except on the food-and-beverage Concession Sublessees actually operating their business within the designated food court area (on a pass-through basis only with no added administrative or other up-charge); (ii) the receipt, storage, transportation or delivery of goods, inventory or equipment of any kind, except on Concession Sublessees (on a pass-through basis only with no added administrative or other up-charge) to receive, store, transport and deliver Concession Sublessees’ goods, inventory and equipment to and from loading docks and the Concession Sublessee’s concession spaces; provided, however, that no rent, charges or other fees may be imposed on Concession Sublessees concession for expenses relating to screening of goods and badging; (iii) marketing and advertising, except on Concession Sublessees (on a pass-through basis only with no added administrative or other up-charge) for charges relating to marketing the Concessions Program; and (iv) utilities, except for utilities provided by the Operator or the Contractor directly to the Concession Sublessees (on a pass-through basis only with no added administrative or other up-charge) in lieu of the Concession Sublessee making direct payments to utility providers, it being understood that the pass-through cost permission relates only yo consumption within the space demised to such Concession Sublessee.
58
5.8Concession Security Deposit Accounts
(1) |
Concession Security Deposit Accounts. The Contractor shall cause each Concession Sublessee as a condition to the effectiveness of any Concession Sublessees’ rights under the applicable Concession Sublease, to deposit on or before the effective date under such Concession Sublease, a security deposit (the “Security Deposit”) in the form of a bond, letter of credit from a bank reasonably acceptable to the Operator, cash or such other form of security as the Operator may reasonably deem acceptable, [**] due to the Contractor from such Concession Sublessee, as determined pursuant to the applicable Concession Sublease; provided that in addition to the Security Deposit, the Contractor shall cause the applicable Concession Sublessee to provide additional security in any amount and manner that may be required of the Operator and/or the Contractor (as applicable) under the Lease Agreement. Each Security Deposit shall be deposited by the Contractor into the applicable Concession Security Deposit Account as security for the full and faithful performance of every provision of the applicable Concession Sublease to be performed by the applicable Concession Sublessee. In the event that the applicable Concession Sublessee obtains a letter of credit as its Security Deposit, the letter of credit shall be in the form attached hereto as Exhibit O (Form of Security Deposit Letter of Credit), which shall be included as an exhibit to the applicable Concession Sublease, or in another form mutually acceptable to the Contractor and such Concession Sublessee. The Contractor shall obligate each Concession Sublessee under the applicable Concession Sublease to maintain the Security Deposit in effect until the end of the term of such Concession Sublease. |
(2) |
The Contractor shall promptly deposit into the applicable Concession Security Deposit Account all Security Deposits received by it. |
(3) |
Use or Application of Security Deposits in Concession Security Deposit Accounts |
(a) |
In the case where any Security Deposit is in the form of a letter of credit and the Contractor does not receive a renewed letter of credit within thirty (30) days prior to the stated expiration date of such letter of credit or the Contractor does not receive a letter of credit from a new issuer within ten (10) Business Days following the failure of the issuer to be reasonably acceptable to the Contractor, the Contractor shall, subject to prior approval of the Operator (not to be unreasonably withheld, delayed or conditioned), draw on the letter of credit and hold the cash proceeds from such letter(s) of credit in the applicable Concession Security Deposit Account as the Security Deposit until the applicable Concession Sublessee provides a replacement Security Deposit substantially in the form attached hereto as Exhibit Q, upon such replacement the Contractor shall return such cash proceeds held by the Contractor in the applicable Concession Security Deposit Account to the applicable Concession Sublessee. |
59
(b) |
If any Concession Sublessee is in breach of its obligations under the applicable Concession Sublease, the Contractor shall, subject to prior approval of the Operator (not to be unreasonably withheld, delayed or conditioned), use, apply or retain all or any part of the applicable Security Deposit held in the applicable Concession Security Deposit Account for the payment of all or part of any Base Rent (as defined in the applicable Concession Sublease) or other fee or charge, or for the payment of any other amount which the Contractor and/or the Operator may spend or become obligated to spend by reason of the applicable Concession Sublessee’s default or failure to compensate the Contractor and/or the Operator for any loss, cost or damage that the Contractor and/or the Operator may suffer by reason of such default; provided that the Contractor shall have notified the applicable Concession Sublessee of the default and such Concession Sublessee is not disputing in good faith the default or the application or retention of the Security Deposit held in the applicable Concession Security Deposit Account in accordance with the applicable Concession Sublease. If any portion of said Security Deposit held in the applicable Concession Security Deposit Account is so used or applied, the Contractor shall obligate the applicable Concession Sublessee to restore the Security Deposit to the amount required under this section, within ten (10) Business Days of any such shortfall. The Contractor shall be required to deposit and maintain all Security Deposits in the applicable Concession Security Deposit Accounts, separate from other general funds, and no Concession Sublessee shall be entitled to interest on any such Security Deposit held in the applicable Concession Security Deposit Account. |
(c) |
The Operator shall be entitled to withdraw and transfer (or cause the Contractor to withdraw and transfer) amounts on deposit in the applicable Concession Security Deposit Account to (i) cover losses or damages that such deposits secure and (ii) return such deposits to the applicable Concession Sublessee, in each case in accordance with this Agreement. |
(d) |
Amounts in deposit in the Concession Security Deposit Account shall be subject to the Lien of the Collateral Agent (which Lien shall be subject to any obligation to return the deposits to the applicable Concession Sublessee pursuant to this Agreement and the Financing Documents). |
(4) |
No Security Deposit Charges. Neither the Contractor nor the Operator shall impose, directly or indirectly any charge on any Concession Sublessee in connection with security deposits or related payments made by either of such entities to the Port Authority under the Lease Agreement or in connection with this Agreement, the applicable Concession Sublease or the Financing Documents. |
5.9Tax Treatment.
(1) |
The Parties agree to treat this Agreement as a “management contract” for U.S. federal income tax purposes and not to take any positions inconsistent with such treatment. Any payment obligation set forth in this Agreement in respect of any failure to satisfy an obligation hereunder is intended to be treated as a penalty for failure to operate in accordance with the terms of this Agreement. |
ARTICLE 6 -- RIGHTS OF SELF-HELP
60
6.1Self-Help Rights
(1) |
If either Party fails to perform any of its respective obligations beyond any applicable notice and cure periods, or if such applicable notice or cure periods have not expired but failure to promptly cure such default would reasonably be expected to cause an emergency situation or irreparable damage to Persons or property, then the other Party will have the right to self-perform and deduct the actual costs of such self-performance from amounts payable to the non-performing Party, including all interest, costs, damages and penalties (herein called the “Self-Help Costs”), and the same may be invoiced to the non-performing Party with payment due on demand or deducted from any payment due to the non-performing Party from the other Party, provided, that, in the case of self-performance by the Contractor, the Operator’s failure affects the Concessions Program and is capable of being performed by the Contractor. |
6.2The Port Authority’s Step-In Rights
(1) |
The Parties acknowledge that, upon receipt by the Operator of written notice from the Port Authority, the Port Authority is entitled to exercise the Operator’s rights with respect to this Agreement in accordance with Section 54 (Right to Perform the Lessee’s Obligations) of the Lease Agreement, without any necessity for a consent or approval from the Operator or the making of a determination whether the Port Authority validly exercised its step-in rights (the “Port Authority Step-In Right”). |
(2) |
The Operator hereby waives and releases any claim or cause of action against the Contractor arising out of or relating to the Contractor’s recognition of the Port Authority’s rights in reliance on any written notice from the Port Authority described in Section 6.2(1). |
(3) |
The Contractor covenants to promptly execute and deliver to the Port Authority or its successor, assignee or designee a new contract between the Contractor and the Port Authority or its successor, assignee or designee on the same terms and conditions as this Agreement, if (A) this Agreement is rejected by the Operator in bankruptcy or is wrongfully terminated by the Operator and (B) the Port Authority delivers to the Contractor written request for such new contract within sixty (60) days following termination or expiration of the Lease Agreement. This Section 6.2(3) shall survive termination of this Agreement. |
(4) |
The Contractor acknowledges that pursuant to the Lease Agreement, subject to the rights of the Lenders, the Port Authority shall, as an additional remedy upon the giving of a notice of termination as provided in Section 21 (Termination by the Port Authority) of the Lease Agreement, have the right to re-enter the Premises and every part thereof upon the effective date of termination without further notice of any kind, and may regain and resume possession either with or without the institution of summary or any other legal proceedings or otherwise. Such re-entry, or regaining or resumption of possession, however, shall not in any manner affect, alter or diminish any of the obligations of the Contractor under this Agreement, and shall in no event constitute an acceptance of surrender. |
ARTICLE 7– INSURANCE
7.1Insurance Procured by the Contractor
61
(1) |
During the Term, the Contractor will procure and maintain, or cause to be maintained, at its own cost and expense (and not reimbursable by the Operator), insurance satisfying the requirements set forth in the Consent to MCDA and, if the insurance requirements set forth in this Agreement are different, then whichever constitutes the broader or more comprehensive insurance requirements shall control. Each of the Operator, the Port Authority and the City Insureds shall be named as additional insureds or loss payees, as applicable, under each policy of insurance procured by the Contractor, with the exception of Workers Compensation, Employers Liability and Professional Liability, pursuant to the terms of this Agreement and the applicable Consent to MCDA. The Contractor will provide the following coverage and limits of insurance: |
(a) |
Statutory Workers Compensation; |
(b) |
Commercial General Liability with minimum limit requirements equaling [**] aggregate General Liability. Limits can be achieved through combination of primary and excess/umbrella policies; |
(c) |
[**] Business Auto Liability [**] if airside access required); and |
(d) |
Commercial Crime Insurance. The Contractor shall procure, maintain or cause to be maintained, commercial crime insurance covering both innkeeper’s/bailee legal liability, protecting against employee dishonesty, embezzlement, theft, and the like in amounts and otherwise in a form acceptable to the Port Authority, and naming the Port Authority and the Operator as additional loss payees thereunder; and including broad form money and securities, money orders, counterfeit paper, depositor’s forgery, computer fraud, cybercrime and transfer fraud, credit card forgery, audit expenses and employee dishonesty, with a combined single limit per occurrence of not less than [**] |
(2) |
During the Term, the Contractor will also maintain, or cause to be maintained, at its own cost and expense (and not reimbursable by the Operator): |
(a) |
Errors and omissions and professional liability insurance with a combined single limit per occurrence of not less than [**] and an aggregate limit of not less than [**] per annual policy period, provided that such coverage is available at commercially reasonable rates. Contractor shall maintain similar insurance under the same terms and conditions for at least ten (10) years following completion of the Services. If such coverage is not available at commercially reasonable rates, then the Contractor will purchase coverage at such levels as are then available at commercially reasonable rates. |
(b) |
Liquor liability insurance for death, bodily injury and property damage, to the extent the same applies to the operations of the Operator, with a combined single limit per occurrence of not less than [**] and an aggregate limit of not less than [**] per annual policy period. |
(c) |
Cyber Liability, Network Security and Data Breach Insurance, including Technology Errors and Omissions (if applicable) with the minimum limits of [**] per occurrence. Such insurance shall include the following coverages: |
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(1) liability arising from theft, dissemination and/or use of confidential information stored or transmitted in electronic form; (2) liability arising from the introduction of a computer virus into, or otherwise causing damage to, a customer’s or third person’s computer, computer system, network or similar computer-related property and the data, software and programs stored thereon; and (3) the interruption of services directly or ancillary to the operation of critical infrastructure systems of the Port Authority. Services insured by such policy shall include, at a minimum (to the extent applicable as determined by the Port Authority): (1) systems analysis, (2) systems programming, (3) data processing, (4) systems integration, (5) outsourcing including outsourcing development and design, (6) systems design, consulting, development and modification, (7) training services relating to computer software or hardware, (8) management, repair and maintenance of computer products, networks and systems, (9) marketing, selling, servicing, distributing, installing and maintaining computer hardware or software, and (10) data entry, modification, verification, maintenance, storage, retrieval or preparation of data output, and any other services provided by the Contractor and subcontractors. Such insurance shall also include: (1) coverage for loss, disclosure and theft of data in any form; media and content rights infringement and liability, including but not limited to, software copyright infringement; and network security failure or breach, including but not limited to, denial of service attacks and transmission of malicious code; (2) coverage for data breach regulatory fines and penalties, the cost of notifying individuals of a security or data breach, the cost of credit monitoring services and any other causally related crisis management expense for the duration of the claim; shall be primary and non-contributory, include contractual liability, severability for the insured organization for any intentional act exclusions in respect of data security liability, intentional or reckless or deliberate acts by any employee acting independently of any director, chief compliance officer, data protection officer or general counsel of the insured. Cyber Liability, Network Security and Data Breach Insurance Policy shall cover consequential or vicarious liabilities (e.g., claims brought against the Port Authority or its directors, commissioners, officers, employees, agents, their affiliates, successors and/or assigns due to the wrongful acts and failures committed by Operator, its Contractors and subcontractors) and direct losses (e.g., claims made by the Port Authority and its directors, commissioners, officers, employees, agents, their affiliates, successors and/or assigns against Contractors and subcontractors for financial loss due to wrongful acts or failures of the Contractors or any subcontractors). Such insurance policy shall be maintained by the Contractor for the duration of the Term and for a period of six (6) years thereafter.
(3) |
The Contractor will cause the Operator, the Port Authority and the City Insureds to be named as additional insureds on all property damage and liability policies that the Contractor is required to maintain pursuant to the Lease Agreement (except for any professional liability insurance, employers liability insurance and workers’ compensation insurance), and the Contractor will provide proof of such insurance along with copies of each such policy (or any renewals or replacements thereof) to the Operator promptly upon delivery by the insurers. |
(4) |
The Operator will cooperate with the Contractor in the submission of any insurance claim arising out of the Contractor’s provision of the Services. |
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(5) |
The Contractor acknowledges that the Operator may procure a comprehensive master insurance program for the Project in order to satisfy the Operator’s insurance obligations under the Lease Agreement. If the Operator procures such a comprehensive master insurance program and offers Contractor the opportunity to participate in such program on terms and conditions acceptable to Contractor in its sole discretion, the Contractor shall be permitted participate in such comprehensive master insurance program. To the extent the Contractor participates in such comprehensive master insurance program and complies with its payment and other obligations with respect to such comprehensive master insurance program, the provisions of this Article 7 shall not apply to Contractor. Notwithstanding the foregoing, to the extent the Operator’s comprehensive master insurance program for the Project lapses or expires, the Contractor shall be obligated to comply with the insurance requirements set forth herein. |
(6) |
The Contractor acknowledges that separate insurance requirements apply to the TCAP Process. The Contractor shall cause to be maintained, at its own cost and expense (and not reimbursable by the Operator), insurance satisfying the requirements set forth within the TCAP Process Manual. |
ARTICLE 8- AREAS AVAILABLE FOR CONTRACTOR USE
8.1Contractor Office Space
(1) |
For the Term, the managerial and administrative staff of the Contractor shall have the use of office space provided by the Operator to be used by managerial and administrative personnel only, solely in connection with the management and administrative functions for the Services referred to herein. Such office space shall consist of at least two (2) dedicated offices as well as other office space to be used in common with the Operator’s personnel. Such common use space shall be sufficient to accommodate the Contractor’s performance of the Services and shall be furnished (i.e., desk and chairs) and equipped by the Operator with adequate utilities and technology infrastructure sufficient for the Contractor’s performance of the Services. Notwithstanding the foregoing, no representation or covenant is made by the Operator that such office space will be suitable for the Contractor’s purposes as described above. [**] |
(2) |
The Contractor acknowledges that the Operator, its officers, employees and representatives shall use such common use facilities in common with the Contractor’s personnel and the Parties will seek to integrate their respective officers, employees and representatives working in such facilities. Notwithstanding the foregoing, the Operator, its officers, employees and representatives shall have the right to enter upon the facilities and/or office space provided to the Contractor in order to perform any act or duty which the Operator may be obligated or have the right to do under this Agreement. |
(3) |
The Contractor shall repair all damage to the office space and all damage to fixtures, improvements, and personal property of the Operator which may now or may hereafter be located thereon, which may be caused by the operations of the Contractor under this |
64
Agreement or by any acts or omissions of the Contractor, its officers, employees, agents or representatives whether or not the damage occurs during the course of their employment by the Contractor.
(4) |
The Contractor acknowledges and agrees that no relationship of licensor and licensee is created or intended to be created hereunder with respect to office space and that the use of any office space or similar facilities by the Contractor is merely incidental to and dependent upon its operations hereunder as Contractor. Upon the expiration or earlier termination or revocation of this Agreement, or upon a change of office space, then the Contractor shall remove its equipment, materials, supplies, and other personal property from such office space. If the Contractor shall fail to remove its property upon the expiration, termination or revocation of this Agreement, or upon a change of office space, the Operator in its sole discretion may dispose of the same as waste material or may remove such property to a public warehouse for deposit or retain the same in its own possession, and sell the same at public auction, the proceeds of which shall be applied first to the expenses of removal, storage and sale, second to any sums owed to the Operator by the Contractor; if the expenses of such removal, storage and sale exceed the proceeds of sale, the Contractor shall pay such excess to the Operator upon demand. |
(1) |
The Contractor shall not perform any maintenance or repairs, nor erect any structures, make any improvements or do any other construction work in, on or about the office space provided to the Contractor hereunder or elsewhere at the Terminal One or alter, modify, or make additions or repairs to or replacements of any existing structures or improvements, or install any fixtures (other than trade fixtures, removable without injury to the office space) without the prior written approval of the Operator and in the event that any construction, improvements, alterations, modifications, additions, repairs or replacements are made without such approval, then upon notice, the Contractor will remove the same, or at the option of the Operator, cause the same to be changed to the satisfaction of the Operator, at the sole expense of the Contractor. In case of any failure on the part of the Contractor to comply with such notice, the Operator may effect the removal or change and the Contractor shall pay the cost thereof to the Operator on demand. Title to any improvements made by Contractor shall vest in The City of New York upon installation of the same in accordance with the provisions of the Basic Lease. |
ARTICLE 9 – RIGHT OF ACCESS AND INSPECTION; AUDIT OF RECORDS
9.1Right of Access and Inspection; Audit of Records
(1) |
The Operator reserves the right to observe, monitor, review, and inspect any aspect of the concession operations at Terminal One or the Contractor’s operations at any time. The Port Authority shall have the rights of entry and inspection in respect of Terminal One as set forth in Section 18 of the Lease Agreement. |
9.2Maintenance and Inspection of Books and Records
(1) |
The Contractor shall, and shall cause any Affiliate that (x) is a Contractor (as defined in the Lease Agreement) or sub-sublessee or is otherwise conducting business or operations at, through, or in any way, connected with the Airport (with respect to such portions of their books and records that relate to the Airport) or (y) keeps and maintains records and books of account on behalf of the Contractor, to: |
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(a) |
keep and maintain in English in an office or offices in the Port of New York District, full and complete records and books of account, including, for the avoidance of doubt, with respect to all matters which the Contractor is required to certify to the Port Authority or the Operator pursuant to this Agreement or Consent to MCDA, as applicable, in accordance with U.S. generally accepted accounting principles, or any other generally accepted accounting standards that are acceptable to the Port Authority, recording all transactions of the Contractor at, through, or in any way connected with its operations at the Premises or elsewhere at the Airport pursuant to this Agreement, and outside the Airport if the order therefor is received at the Airport, which records and books of account shall be kept at all times within the Port of New York District and shall separately state and identify each activity performed at the Airport and off-Airport if the order therefor is received at the Airport; provided that the Contractor (and, if applicable, its Affiliate) shall keep and maintain such books and records during the term of this Agreement and for seven (7) years after the expiration or earlier termination or surrender thereof, and for such further period with regard to records and books of account relating to causes of action or other claims which accrue prior to the expiration, revocation or termination of this Agreement or which are the subject of threatened or pending litigation, settlement or other legal process and until the applicable statute of limitations has expired or, in the case of litigation, settlement or other legal process, such litigation, settlement or legal process has been completely disposed of and all time limits for appeal have expired, whichever is longer; |
(b) |
permit and/or cause to be permitted in ordinary business hours during the term of this Agreement and for seven (7) years thereafter, and for the other time periods referenced in Section 9.2(1)(a) above, as applicable, the examination and audit by both the officers, employees and representatives of both the Port Authority and those of the Operator of such records and books of account and also any records and books of account of any Affiliate if said Affiliate (x) is a Contractor (as defined in the Lease Agreement) or sub-sublessee or is otherwise conducting business or operations at, through, or in any way connected with the Airport (with respect to such portions of their books and records that relate to the Airport) or (y) keeps and maintains records and books of account on behalf of Contractor (including without limitation all corporate records, agreements, source documents and books of account which the Port Authority in its sole and absolute discretion believes may be relevant for the identification, determination or calculation of all fees, rentals and other amounts paid or payable to the Port Authority whether directly or indirectly), within twenty (20) days following any request by the Port Authority from time to time and at any time to examine and audit said books and records; provided, in the event that, upon conducting an examination and audit as described in this Section 9.2(1)(b), the Port Authority determines or estimates that unpaid fees, costs and/or other amounts thereon are due and payable to the Port Authority (whether directly or indirectly), in addition to any other amounts required by this Section 9.2(1)(b) to be paid by the Contractor to the Port Authority, the Contractor shall pay to the Port Authority a service charge (“Service Charge”) in an amount equal to five percent (5%) of the amount determined by the Port Authority to be unpaid. Such Service Charge shall be payable by the Contractor upon demand therefor by the Port Authority and is exclusive of any and all other moneys due to the Port Authority by the Contractor under this Agreement or otherwise. No acceptance by the Port Authority of payment of any unpaid amount or of any unpaid Service Charge shall be deemed a waiver of the right of the Port Authority |
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of payment of any Late Charge(s) or other Service Charge(s) payable under the provisions of this Section 9.2(1)(b), with respect to such unpaid amount. Each such Service Charge shall be and become fees, recoverable by the Port Authority in the same manner and with like remedies as if it were originally a part of the fees to be paid. Nothing in this Section 9.2(1)(b) is intended to, or shall be deemed to, affect, alter, modify or diminish in any way (x) any rights of the Port Authority under this Agreement, including, without limitation, the Port Authority’s rights to terminate this Agreement or (y) any obligations of the Contractor under this Agreement; and
(c) |
in those situations where the books and records have been generated from electronic data, provide, or cause to be provided, to the Port Authority’s representative extracts of data files in a computer readable format on data disks, E-mail with attached files or alternative computer data exchange formats suitable for the Port Authority in its sole and absolute discretion. |
9.3Office of Inspector General and Integrity Monitor
(1) |
The Contractor understands that its compliance with Section 9.2(1)(a) above is of the utmost importance to the Port Authority in having entered into the arrangement under the Consent to MCDA and in the event of the failure of the Contractor to maintain, keep within the Port of New York District or make available for examination and audit the Contractor’s books and records of account in the manner and at the times or locations as provided in this provision, then, in addition to all and without limiting any other rights and remedies of the Port Authority: |
(a) |
the Port Authority may estimate the amount or Port Authority share of moneys due and payable by Contractor to the Port Authority under this Agreement on the basis that the Port Authority, in its sole and absolute discretion, shall deem appropriate, and the Contractor shall pay such amount to the Port Authority when billed; |
(b) |
if any such books and records have been maintained outside the Port of New York District, but within the continental United States of America, then the Port Authority in its sole and absolute discretion may (1) require such records to be produced within the Port of New York District within thirty (30) days of written request for same or (2) if the Contractor (or its Affiliate) fails to provide all of such books and records within the time period stated above (time being of the essence in connection with such time period and, in addition, such provided books and records being to the complete and total satisfaction of the Port Authority) the Port Authority may examine such records at the location at which they have been maintained and in such event the Contractor (or its Affiliate) shall pay to the Port Authority when billed all actual travel costs and related expenses, as determined by the Port Authority for Port Authority auditors and other representatives, employees and officers in connection with such examination and audit; |
(c) |
if any such books and records have been maintained outside the continental United States of America then, in addition to the costs specified in paragraph (b) above, the Contractor shall pay to the Port Authority when billed all other costs of the examination and audit of such records including, without limitation, salaries, benefits, travel costs and related expenses, overhead costs and fees and charges of third party auditors retained by the Port Authority for the purpose of conducting such audit and examination; and |
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(d) |
The foregoing auditing costs, expenses and amounts set forth in Section 9.3(1)(b) and Section 9.3(1)(c) above shall be deemed fees/rent and charges under this Agreement or the Consent to MCDA, as applicable, payable to the Port Authority with the same force and effect as all other fees/rent and charges thereunder. |
ARTICLE 10 –NON-SOLICIT
10.1Non-Solicitation
(1) |
Each of the Operator and the Contractor agrees that during the Term and for a period of three hundred and sixty-five (365) days following the termination of this Agreement, such Party will not, without the prior written consent of the other Party: |
(a) |
hire or engage any current employees of the other Party (or consultants who work primarily with such Party or any of its Affiliates), in any capacity, to work in or for any business of the Operator or the Contractor, as the case may be, or any other business; or |
(b) |
solicit or induce, or attempt to solicit or induce, any employee or consultant described in Section 10.1(1)(a) to end or change his or her employment or consulting relationship with the other Party or any of its Affiliates. |
(2) |
For the avoidance of doubt, nothing in this Section 10.1 shall, in the event of a termination of the Lease Agreement and the Port Authority’s assumption of this Agreement pursuant to Section 6.2 prohibit the continued engagement of the Contractor’s or the Operator’s personnel providing services at or in connection with Terminal One as of the effective date of such termination. |
ARTICLE 11–MBE/WBE AND ACDBE
11.1United States Department of Transportation Regulation, 49 C.F.R. Part 23.
(1) |
This Agreement shall be subject to the requirements of the United States Department of Transportation’s regulations, 49 C.F.R. Part 23. The Contractor agrees that it will not discriminate against any business owner because of the owner’s race, color, national origin or sex in connection with the award or performance of any concession agreement or any management contract, or subcontract, purchase or lease agreement or other agreement covered by 49 C.F.R. Part 23. |
(2) |
The Contractor agrees to include the above statements in any subsequent concession agreement or contract covered by 49 C.F.R. Part 23 that it enters and cause those businesses to similarly include the statements in further agreements, the foregoing not to be construed as approval by the Operator or the Port Authority of any such agreements as required. Further, the Contractor agrees to comply with the terms and provisions of Schedule G (Airport Concession Disadvantaged Business Enterprise (ACDBE) Participation) to the Lease Agreement, as administered by the Operator. |
11.2ACDBE Compliance Program.
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(1) |
During the Term, the Contractor shall manage and monitor the ACDBE Compliance Program and shall provide the Operator and/or the Port Authority with an annual report (or as more frequently as may be required by the Port Authority) in the format required by the FAA evidencing the Contractor’s Concession Sublessees’ compliance with the commitment of the goal of thirty percent (30%) (or such lower goal as may be specified in the Lease Agreement) participation by ACDBEs in the Concession Subleases offered by the Concession Sublessees. To the extent that ACDBE participation is in the form of joint ventures, the Contractor (or a consultant at the Contractor’s expense) will be responsible to work with and assist the certifying agency in the evaluation of the work performed by the ACDBE with the ACDBE’s own forces to ensure that it meets the stated ACDBE goals in accordance with the FAA’s ACDBE joint venture guidance. During the Term, the Contractor shall prepare, and the Port Authority shall be responsible for submitting, any and all ACDBE reports to the FAA. The Contractor acknowledges that it will also be bound by any related (and separate) obligations of Operator under the Lease Agreement. |
(2) |
The Contractor acknowledges that pursuant to Section 20(d)(2) (Reporting) of the Lease Agreement, throughout the Term, the Operator shall be required to cooperate with the Port Authority and to provide all information requested by the Port Authority in order to allow for the effective monitoring of the Operator’s ACDBE Participation Plan and ACDBE participation during the Lease Agreement Term. The Contractor shall support the Operator to provide all information requested by the Port Authority pursuant to Section 20(d)(2) (Reporting) of the Lease Agreement. |
(3) |
Throughout the Term, the Contractor shall document its efforts in complying with this Section 11.2 shall keep the Operator fully apprised of the Contractor’s progress in complying with this Section 11.2 and shall supply to the Operator such information, data and documentation with respect thereto as the Operator or Port Authority may from time to time and at any time request, including but not limited to annual reports. |
(4) |
The Contractor specifically acknowledges and agrees that the requirements set forth in Schedule E (Affirmative Action; Equal-Opportunity; Minority Business Enterprise, Women-Owned Business Enterprise Requirements) to the Lease Agreement may be revised or updated from time to time by the Port Authority in accordance with the Lease Agreement and that, accordingly, the Port Authority may from time to time, by notice to the Operator, provide to the Operator a revised or updated form of such Schedule E. Any such replacement Schedule E shall, from the effective date of such notice, be deemed to constitute an integral part of the Lease Agreement. Notwithstanding any such revisions or updates, to the extent the Contractor entered into agreements based on Schedule E that was then in effect, any such agreement that pre-dates the effective date of such revisions or updates and which has not expired and is not being extended, amended or restated shall not be required to be modified to conform to such revised and/or updated Schedule E. |
(5) |
The Contractor shall not, without the prior written consent of the Port Authority: |
(a) |
terminate a Concession Sublease (or a sub-sublease) with a Concession Sublessee (or a sub-lessee) if such Concession Sublessee or sub-lessee is an ACDBE, or terminate any contract or agreement for the sale of goods or services by an ACDBE to which the Contractor is a party; |
(b) |
refuse to extend or renew a Concession Sublease (or a sub-sublease) with an ACDBE Concession Sublessee (or sub-lessee) if such Concession Sublease or sub- |
69
sublease contains an express right of extension or renewal and the conditions thereto have been satisfied by the ACDBE Concession Sublessee (or sub-lessee); or
(c) |
enter into a Concession Sublease or sub-sublease with a non-ACDBE Concession Sublessee or sub-lessee for service or space which had been performed or occupied by an ACDBE Concession Sublessee or sub-lessee; |
provided that it is understood that the Port Authority will not withhold its consent to any of the foregoing if the applicable action of the Contractor is (1) based on a non-discriminatory determination by the Contractor under the applicable facts, or (2) is otherwise consistent with the requirements of 49 C.F.R. Part 23.
11.3MBE/WBE Program Compliance.
(1) |
In addition to and without limiting any other term or provision of this Agreement, it is hereby agreed that the Contractor shall throughout the Term commit itself to and use good faith efforts to comply with the Operator’s program to ensure maximum opportunities for (i) MBEs and WBEs, as further described in Schedule E (Affirmative Action; Equal-Opportunity; Minority Business Enterprise, Women-Owned Business Enterprise Requirements) to the Lease Agreement and (ii) SDVOB as further described in Schedule I (SDVOB) to the Lease Agreement. |
11.4Non-Compliance.
(1) |
The Contractor’s non-compliance with the provisions of this Article 11 shall constitute a material breach of this Agreement. In the event of the breach by the Contractor of any of the provisions of this Article 11, the Port Authority may take any appropriate action to enforce compliance herewith; or the Port Authority shall have the right to terminate this Agreement as permitted in accordance with Section 20.2(1)(a) or may pursue such other rights or remedies as may be provided by law; and as to any or all the foregoing, the Port Authority may take such action as the United States of America may direct. |
(2) |
Without limiting the provisions of Section 11.4(1) and in addition thereto, in the event of the breach by the Contractor of any of the provisions of Section 11.2 the Port Authority may, in its discretion, take any of the actions identified in Schedule E (Affirmative Action; Equal-Opportunity; Minority Business Enterprise, Women-Owned Business Enterprise Requirements) to the Lease Agreement. |
11.5Compliance Standards.
Nothing herein provided shall be construed as a limitation upon the application of any laws which are applicable to the Contractor and/or the Operator and which establish different standards of compliance or upon the application of requirements for the hiring of local or other area residents.
ARTICLE 12- LOCAL BUSINESS ENTERPRISE AND EMPLOYMENT OPPORTUNITY
[**]
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[**]
12.2 |
The Contractor specifically acknowledges and agrees that the requirements set forth in Schedule E (Affirmative Action; Equal-Opportunity; Minority Business Enterprise, Women-Owned Business Enterprise Requirements) to the Lease Agreement may be revised or updated from time to time by the Port Authority and that, accordingly, the Port Authority may from time to time, by notice to the Operator, provide to the Operator a revised or updated form of such Schedule E to replace Schedule E currently attached to and forming a part of the Lease Agreement. Such replacement Schedule E shall, from the effective date of such notice, be deemed to constitute an integral part of this Agreement. Notwithstanding any such revisions or updates, to the extent the Contractor entered into agreements based on the Schedule E that was then in effect, any such agreement which predates the effective date of such revisions or updates and which has not expired and is not being extended, amended or restated shall not be required to be modified to conform to such revision and/or update. |
12.3 |
Throughout the Term, the Contractor shall document its efforts in complying with this Article 12 and Schedule E to the Lease Agreement, shall keep the Operator fully advised of the Contractor’s progress in complying with such Schedule E and shall supply to the Operator such information, data and documentation with respect thereto as the Operator or Port Authority may from time to time and at any time request, including but not limited to annual reports. |
ARTICLE 13 - EMPLOYMENT; AFFIRMATIVE ACTION; EQUAL OPPORTUNITY
13.1Affirmative Action
(1) |
The Contractor covenants and agrees that it will undertake an affirmative action program as required by 14 C.F.R. Part 152, Subpart E, to insure that no person shall on the grounds of race, color, national origin, creed or religion, sex, handicap or disability or age be excluded from participating in any employment activities covered in 14 C.F.R. Part 152, Subpart E and shall assure that no person shall be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by such Subpart E. The Contractor covenants and agrees that it will require that its covered suborganizations provide assurances to the Contractor that they similarly will undertake affirmative action programs and that they will require assurances from the suborganizations, as required by 14 C.F.R. Part 152, Subpart E, to the same effect. |
13.2Non-Discrimination
(1) |
The Contractor, for itself, its successors in interest, and assigns, as a part of the consideration hereof, covenants and agrees as a covenant running with the land that (i) no person on the ground of race, color, national origin, creed or religion, sex, handicap or disability or age shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of the Premises, (ii) in the construction of any improvements on, over, or under the Premises and furnishing of services thereon, no person on the ground of race, color, national origin, creed or religion, sex, handicap or disability or age shall be excluded from participation in, denied the benefits of, or otherwise be subject to discrimination, and (iii) the Contractor shall use the 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, |
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Non-discrimination 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, and any other present or future laws, rules, regulations, orders or directions of the United States of America with respect thereto which from time to time may be applicable to the Contractor’s operations at the Airport, whether by reason of agreement between the Port Authority and the United States of America or otherwise. The Port Authority shall have the right to take such action as the United States of America may direct to enforce such covenant.
13.3[Reserved].
13.4Other Agreements
(1)In addition to and without limiting any terms and provisions of this Agreement:
(a) |
the Contractor agrees to comply with all applicable federal, state and local laws, ordinances, rules, regulations, and orders that pertain to equal employment opportunity, affirmative action, and non-discrimination in employment; |
(b) |
at the request of either the Port Authority or the Operator, the Contractor, shall request any employment agency, labor union or authorized representative of workers with which it has a collective bargaining or other agreement or understanding and which is involved in the performance of this Agreement to furnish a written statement that such employment agency, labor union or representative shall not discriminate because of race, color, national origin, creed/religion, sex, age or handicap/disability, and that such union or representative will cooperate in the implementation of the Contractor’s obligations hereunder; and |
(c) |
the Contractor will state, in all solicitations or advertisements for employees placed by or on behalf of the Contractor in the performance of this Agreement that all qualified applicants will be afforded equal employment opportunity without discrimination because of race, color, national origin, creed/religion, sex, age or handicap/disability. |
(d) |
the Contractor shall not unjustly discriminate among concession sub-sublessees or refuse to offer any classification, status, or terms of an agreement, to any concession sub-sublessee in the Premises that assumes obligations substantially similar to those already imposed on any other similarly situated concession sub-sublessee, as applicable, in the Premises having such classification status or terms. |
13.5Non-Compliance.
The Contractor’s non-compliance with the provisions of this Article 13 shall constitute a material breach of this Agreement. In the event of the breach by the Contractor of any of the provisions of this Article 13, the Port Authority may take any appropriate to enforce compliance; or the Port Authority shall have the right to terminate this Agreement as permitted in accordance with Section 20.2(1)(a) or may pursue such other rights or remedies as may be provided by law; and as to any or all the foregoing, the Port Authority may take such action as the United States of America may direct.
ARTICLE 14– FAA GRANTS
14.1FAA Grants.
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(1) |
The Port Authority has applied for and received a grant or grants of money from the Administrator of the FAA pursuant to the Airport and Airways Development Act of 1970, as the same has been and may hereafter be amended and supplemented or superseded by similar federal legislation, and under prior federal statutes which said Act superseded and the Port Authority may in the future apply for and receive further such grants, and the Port Authority has applied for and received permission to collect and use Passenger Facility Charges pursuant to An Act To Revise, Codify, And Enact Without Substantive Change Certain General And Permanent Laws, Related To Transportation, Pub: Law 103-272, 108 Stat 745 (July 5, 1994), as the same has been and may hereafter be amended and supplemented or superseded by similar federal legislation, and under prior federal statutes which said Act superseded, and the Port Authority may in the future apply for and receive further permission to collect such Passenger Facility Charges. In connection therewith the Port Authority has undertaken, and may in the future undertake, certain obligations respecting its operation of the Airport and the activities of its contractors, lessees and permittees thereon. The performance by the Contractor of the covenants, promises and obligations contained in this Agreement is therefore a special consideration and inducement for the Port Authority to enter into and execute the Consent to MCDA, and the Contractor further covenants and agrees that if the Administrator of the FAA or any other governmental officer or body having jurisdiction over the enforcement of the obligations of the Port Authority in connection with the federal airport aid, shall make any orders or recommendations or suggestions in written form respecting the performance by the Contractor of such covenants, promises and obligations, the Contractor will promptly comply therewith, at the Contractor’s cost and expense, at the time or times when and to the extent that the Port Authority may direct. |
(2) |
The Contractor covenants and agrees that (A) the Contractor, at its own cost and expense, shall comply with any direction issued by the Port Authority (including any bulletin, directive or other official instruction issued by the General Manager of the Airport) to comply with Applicable Law or Applicable Standards, or with any applicable regulation, order, statement of policy, advisory circular, or recommendation or suggestion in writing, of the Administrator of the FAA or any other governmental officer or body having jurisdiction over the enforcement of the obligations of the Port Authority under federal law, or arising from the applications described in this Article 14.; provided that (1) for the purpose of this Article 14, “governmental officer or body” shall not be construed to refer to or include the Port Authority, (2) the direction of the Port Authority made under this Article 14 shall include a direction to the Contractor to take an action, to not take an action, or to cease an action, including, but not limited to the granting of a contract or permission or directing another person to take an action, refrain from taking an action, or cease an action, (3) the Port Authority’s interpretation of any such Applicable Law, order, statement of policy, recommendation or suggestion, including those of a general nature which do not refer specifically to the Airport or any specific person, shall be final and determinative; and (4) the Port Authority may require any permittee, subtenant, licensee, contractor or supplier of the Contractor who acts for or on behalf of the Contractor in or regarding the Premises to perform the obligations imposed by, and be subject to, the terms of, this Article 14, as if such permittee, Contractor, subtenant, licensee, contractor or supplier were the Contractor with respect to the obligations of the Contractor set forth in this Article 14. |
(3) |
The Contractor agrees to include the statements in this Article 14 in any subsequent concession agreements that it enters and cause those businesses similarly to include the statements in further agreements, the foregoing not to be construed as approval by the Operator or the Port Authority of any such agreements as required. |
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[**]
15.1[**]
(1)[**]
(2)[**]
15.2[**]
(1)[**]
(2)[**]
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ARTICLE 16 – OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS AND MATERIALS
16.1 |
During the Term of this Agreement, the Contractor may, in connection with performing its obligations hereunder at Terminal One, use, acquire, develop, create, or engage third parties to create, (i) various types of materials, including, but not limited to, an app, a website, a digital platform, other software, the Digital Engagement Platform, printed materials, such as advertising, posters and other marketing materials, that are, in each case, subject to Intellectual Property Rights, including Intellectual Property Rights that the Contractor (x) may have acquired, developed or created prior to the Term or (y) acquires, develops or creates during the Term independently from performing its obligations under this Agreement ((x) and (y), together, “Background Intellectual Property”) (together, the “Contractor Materials” (which includes the Dedicated Terminal One Materials) and (ii) Intellectual Property Rights (together, the “Contractor Intellectual Property Rights”). As between the Operator and the Contractor, the Contractor shall be the exclusive owner of all right, title and interest in and to the Contractor Materials, all Intellectual Property Rights (including Background Intellectual Property) in the Contractor Materials and all Contractor Intellectual Property Rights, provided, however, that nothing in the foregoing shall alter the Parties’ respective rights to Operator Data and Contractor Data, as specified in Section 3.9. |
16.2 |
The Contractor grants to the Operator a non-exclusive, royalty-free, non-transferable (except in connection with an assignment permitted pursuant to Section 24.7), non-sublicenseable license for the Term to use the Contractor Intellectual Property Rights as necessary to operate Terminal One. All goodwill in connection with such use shall inure to the Contractor. To the extent such Contractor Intellectual Property Rights include trademarks, service marks, trade dress, trade names, logos and corporate names, the Contractor may require that the Operator comply with its reasonable quality control obligations which, in all events, shall be no more burdensome than the quality control standards to which the Contractor itself adheres. |
16.3 |
The Parties anticipate that the majority of the Contractor Materials that the Contractor will acquire, develop or create will be for the Contractor’s use solely at or in connection with its operations at Terminal One (“Dedicated Terminal One Materials”). During the Term, the Contractor may wish to, and the Operator may request that the Contractor, acquire, develop or create Contractor Materials that may be useful, or that the Contractor plans or intends to use, at or for its businesses or locations other than Terminal One (e.g., a shared app, website, Digital Engagement Platform, directory or other platform or software) (“Shared Contractor Materials”). Given that the nature, timing, use and utility (both during the Term and thereafter) of any such Shared Contractor Materials to the respective Parties is not presently known, the Parties agree that, prior to the Contractor’s acquisition, development or creation of any Shared Contractor Materials, they shall discuss and agree in good faith with respect to such matters as the timing of any acquisition, development or creation thereof, which of the Parties bears the associated costs, the ownership of Intellectual Property Rights therein, the allocation or disposition of any Shared Contractor Materials and the licensing of any associated Intellectual Property Rights therein at the end of the Term. |
ARTICLE 17 – LIENS
17.1 |
The Contractor acknowledges and agrees that (A) the Port Authority is immune from Liens, (B) the Contractor has no right or claim to any Lien or to file any Lien with respect to the Services, the Premises, the Terminal One and/or the Airport for failure of the Operator to pay any amounts due to the Contractor under this Agreement, and (C) the Contractor waives any such right or claim that may exist at law or in equity. |
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ARTICLE 18– BROKERAGE
18.1 |
The Contractor and the Operator each represent and warrant to the other that no broker or finder has been concerned or involved on its respective behalf in the negotiation of this Agreement and that there is no broker who is or may be entitled to be paid a commission in connection therewith. The Contractor and the Operator shall indemnify and save each other and the Port Authority Indemnified Parties harmless of and from any claim for commission or brokerage made by any and all persons, firms or corporations whatsoever for services rendered to the Contractor or the Operator, as the case may be, in connection with the negotiation and execution of this Agreement. |
ARTICLE 19– REPRESENTATIONS AND WARRANTIES
19.1Representations and Warranties of the Operator
The Operator represents and warrants to the Contractor that:
(1) |
The Operator is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware; and duly qualified and in good standing to do business in the State of New York. |
(2) |
The Operator has the right and authority to execute and deliver and to perform each and all of the obligations of the Operator set out in this Agreement. |
(3) |
The execution, delivery and performance of this Agreement have been duly authorized by all necessary action of the Operator. |
(4) |
This Agreement has been duly executed and delivered by the Operator. |
(5) |
This Agreement constitutes a legal, valid and binding obligation of the Operator, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting the enforceability of the rights of creditors generally and the general principles of equity. |
(6) |
The execution, delivery and performance by the Operator of this Agreement do not conflict with or result in a default under or a violation of: |
(a) |
the Operator’s organizational documents; |
(b) |
any other material agreement or instrument to which the Operator is a party or which is binding on the Operator or any of its assets; or |
(c) |
any Applicable Law. |
(7) |
There are no actions, suits, proceedings, investigations or litigation pending against the Operator or, to the knowledge of the Operator, threatened against or affecting the Operator that, individually or in the aggregate, could reasonably be expected to have a material adverse effect on: |
(a) |
the ability of the Operator to perform its obligations under this Agreement; or |
(b) |
the validity or enforceability of all or a material part of this Agreement. |
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(8) |
The Operator has provided to the Contractor a complete copy of the Lease Agreement, including all exhibits and schedules thereto, redacted to omit only such commercial terms relating to the commercial arrangements between the Operator and the Port Authority that do not impact the Operator’s rights and obligations under or ability to comply with this Agreement or the Lease Agreement, and all other documents, guidelines, manuals and other materials and resources referenced therein, and all Project Documents, in each case to the extent that the same may be necessary for the Contractor to enjoy its rights and perform its obligations under this Agreement, including performance of all Services and the Contractor’s obligation to comply with the Lease Agreement and Project Documents. |
For the avoidance of doubt, the Operator acknowledges and agrees that it shall be a breach of the representation and warranty set forth in clause (8) above if there is a material adverse effect on the Contractor’s rights or obligations under this Agreement, or if the Contractor is in breach of the terms of this Agreement, the Lease Agreement or the Consent to MCDA, in any case as a result of the Operator’s failure to provide (i) information that has been redacted in the redacted copy of the Lease Agreement, (ii) any exhibits or schedules to the Lease Agreement, (iii) any other documents, guidelines, manuals or other materials and resources referenced in the Lease Agreement, or (iv) any other Project Document.
19.2Representations and Warranties of the Contractor
The Contractor represents and warrants to the Operator that:
(1) |
The Contractor is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware; and duly qualified and in good standing to do business in the State of New York. |
(2) |
The Contractor has the power and authority to execute, deliver and perform its obligations under this Agreement. |
(3) |
The Contractor has taken all requisite action to authorize the execution and delivery of, and the performance of their obligations under, this Agreement. Each Person executing this Agreement on behalf of the Contractor has been (or at the time of execution will be) duly authorized to execute and deliver this Agreement on behalf of the Contractor. |
(4) |
This Agreement has been (or will be) duly executed and delivered by the Contractor. |
(5) |
The execution, delivery and performance by the Contractor of this Agreement do not conflict with or result in a default under or a violation of: |
(a) |
the constituent or organizational documents of the Contractor; |
(b) |
any other material agreement or instrument to which the Contractor is a party or that is binding on the Contractor or any of its assets; or |
(c) |
any Applicable Law. |
(6) |
Any third-party consents to the execution by the Contractor of this Agreement and the performance of its obligations hereunder have been obtained, except where failure to obtain such consents would not reasonably be expected to have a material adverse effect. |
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(7) |
There is no action, suit, proceeding, investigation or litigation pending or served on the Contractor or, to the Contractor’s knowledge, threatened in writing that: |
(a) |
could reasonably be expected to have a material adverse effect on the ability of the Contractor to perform its obligations under this Agreement; |
(b) |
challenges either the Contractor’s authority to execute, deliver or perform, or the validity or enforceability of, this Agreement; |
(c) |
challenges the Operator’s or the Contractor’s representative executing this Agreement; |
(d) |
alleges that the exercise of any rights or licenses granted under this Agreement does or would infringe, misappropriate or otherwise violate any intellectual property rights of any Person; or |
(8) |
All written information and certifications: |
(i) |
provided by or on behalf of the Contractor to the Operator or the Port Authority, or any of their respective representatives or advisors, as part of or in connection with the Contractor’s commitments under this Agreement, or the negotiation of this Agreement; or |
(ii) |
delivered by or on behalf of the Contractor to the Operator or Port Authority or any Person on its behalf in accordance with this Agreement, |
(iii) |
were true and accurate in all material respects when given and are true and accurate on the date on which this representation is made or repeated. |
(9) |
There are no other facts or matters the omission of which makes any statement or information contained in the written information provided to the Operator or Port Authority or to any of its representatives or advisors misleading in any material respect as of the relevant date of delivery or the date that such representation is made or repeated. |
(10) |
All opinions expressed and contained in the written information provided to the Operator or Port Authority or to any of their respective representatives or advisors were honestly made on reasonable grounds after due and careful inquiry. |
(11) |
Each Person performing the Services on behalf of the Contractor has all required authority, license status, professional ability, skills and capacity to perform the Services that it will perform. |
(12) |
To the best of the Contractor’s knowledge after diligent inquiry, no event has occurred that with the passage of time or the giving of notice will constitute: |
(a) |
an event that the Contractor may assert any claim or seek any relief under this Agreement; or |
(b) |
a Contractor Event of Default under this Agreement. |
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(13) |
Except the representations, statements or promises expressly provided in this Agreement, the Contractor has not relied upon or been induced to enter this Agreement by any representation, statement or promise, whether oral or written, of any kind by the Operator, the Port Authority, or their respective commissioners, officers, agents, employees or consultants. |
(14) |
[Reserved]. |
(15) |
None of the Contractor nor any of its officers or directors: (a) is suspended or debarred, subject to a proceeding to suspend or debar it, or subject to an agreement for voluntary exclusion, from bidding, proposing or contracting with any Federal or State department or agency; (b) has been convicted, plead guilty or nolo contendere to a violation of laws involving fraud, conspiracy, collusion, bribery, perjury, material misrepresentation, or any other violation that shows a similar lack of moral or ethical integrity; or (c) is then barred or restricted from performing its obligations in connection with this Agreement under Applicable Law, including the Foreign Investment and National Security Act of 2007, 50 USC App. 2170 (HR556). |
(16) |
[Reserved]. |
(17) |
The Port Authority will be a third-party beneficiary of all representations and warranties of the Contractor in this Agreement, and the Contractor agrees to name the Port Authority as a third-party beneficiary of all representations and warranties of the Contractor in any contract for performance of Services executed by the Contractor and, to the extent the Port Authority makes claims exercising such rights of the Operator, the Port Authority will be responsible for its own sole gross negligence or willful misconduct in respect of such claims found to be in violation of this Agreement or the relevant contract. |
19.3Performance Security
(1) |
On or prior to the Effective Date, the Contractor shall deliver to the Operator the Parent Company Payment Guaranty and the Parent Company Performance Guaranty. |
(2) |
The Contractor shall, at all times during the Term, ensure that: |
(a) |
each Parent Company Guaranty is maintained in full force and effect, unless such Parent Company Guaranty (or any component thereof) has been terminated as provided for in Section 24.7 of this Agreement; and |
(b) |
the Guarantor or, in the case of a Replacement Guaranty, any Additional Guarantor, is a Qualified Financial Sponsor. |
ARTICLE 20– EVENTS OF DEFAULT
20.1Contractor Events of Default
(1) |
Each of the following events will constitute a “Contractor Event of Default”, provided that no event will constitute a Contractor Event of Default if it is caused, directly or indirectly, by (x) the Operator or (y) solely with respect to the events set forth in Sections 20.1(1)(e), (h), (i), (k), (l) (m), (n), (o), (p) and (s) below, a Concession Sublessee that is an ACDBE and the Contractor is unable, despite exercising commercially reasonable |
79
efforts, to cause such Concession Sublessee to cure the applicable default and/or comply with its Concession Sublease, the Contractor has certified that, with the Port Authority’s consent, it will terminate the Concession Sublease forthwith in accordance with the provisions of the Concession Sublease related to notice and cure periods, and the Port Authority not consented to, pursuant to Section 11.2(5) of this Agreement or the Consent to MCDA, the Contractor’s request to terminate such Concession Sublessee’s Concession Sublease and no breach or default under Sections 20.1(1)(e), (h), (i), (k), (l) (m), (n), (o), (p) and (s) of this Agreement resulting from such Concession Sublessee noncompliance shall be deemed an Event of Default:
(a) |
the Contractor shall become insolvent or shall take the benefit of any present or future insolvency statute, or shall make a general assignment for the benefit of creditors, or file a voluntary petition in bankruptcy or a petition or answer seeking an arrangement or its reorganization or the readjustment of its indebtedness under the federal bankruptcy laws or under any other law or statute of the United States of America or of any state thereof, or consent to the appointment of a receiver, trustee, or liquidator of all or substantially all of its property or takes any action in furtherance of the foregoing; |
(b) |
by order or decree of a court the Contractor shall be adjudged bankrupt or an order shall be made approving a petition filed by any of its creditors or by any of the stockholders (or partners, members of equityholders, as applicable) of the Contractor seeking its reorganization or the readjustment of its indebtedness under the federal bankruptcy laws or under any law or statute of the United States of America or of any state thereof; provided, however, that if any such judgment or order is stayed or vacated within sixty (60) days after the entry thereof, any notice of cancellation shall be and become null, void and of no effect; |
(c) |
by, or pursuant to, or under authority of any legislative act, resolution or rule, or any order or decree of any court or Governmental Authority, agency or officer having jurisdiction, a receiver, trustee, or liquidator shall take possession or control of all or substantially all of the property of the Contractor, and such possession or control shall continue in effect for a period of thirty (30) days; |
(d) |
the Contractor shall voluntarily discontinue its performance of the Services for a period of twenty-five (25) or more consecutive days, or, after exhausting or abandoning any right of further appeal, the Contractor shall be prevented, due solely to the acts or omissions of the Contractor, for a period of twenty-five (25) or more consecutive days by action of any Governmental Authority other than the Port Authority having jurisdiction thereof, from conducting the Services, due to any act or omission of the Contractor, any Contractor-Related Entity and/or any equity member of the Contractor; |
(e) |
any Lien is filed against the Premises or Terminal One because of any act or omission of the Contractor, any Contractor-Related Entity and/or any equity member of the Contractor, and shall not be discharged of record, or by bonding through an insurance company duly authorized to write such bonds in New York State, within thirty (30) days after such filing and the same shall result in an “Event of Default” being declared by the Port Authority under the Lease Agreement, subject however in all events to any lien-related restrictions stated in the Lease |
80
Agreement or the Basic Lease (including, without limitation, any related limitations or prohibitions on grace and cure periods);
(f) |
the Contractor shall, without the written approval of the Operator (and the Port Authority if required pursuant to the terms of the Lease Agreement), become a corporation in dissolution; |
(g) |
the Contractor shall transfer or assign this Agreement, except as permitted under this Agreement and the Lease Agreement; |
(h) |
the Contractor shall fail duly and punctually to pay any undisputed amounts required to be paid by it to the Operator hereunder when due to the Operator, and such failure shall continue for thirty (30) days after receipt of notice of default from the Operator; |
(i) |
the Contractor shall fail to keep, perform and observe (other than as set forth in this Section 20.1) each and every promise, covenant and agreement set forth in this Agreement, for thirty (30) days following written notice by the Operator (except where fulfillment of its obligation requires activity over a period of time and the Contractor shall have commenced to perform whatever may be required for fulfillment within twenty (20) days after receipt of notice and diligently continues such performance without interruption, except for causes beyond its control, to completion); |
(j) |
any representation or warranty made or deemed to be made by the Contractor in this Agreement or in any other certificates or agreements delivered by Contractor to the Operator or the Port Authority in connection with this Agreement shall be found to be incorrect, false or misleading in any material respect (whether by affirmative statement or omission of such statement), unless the facts and circumstances that caused such representation, warranty, statement or omission to be incorrect, false or misleading are capable of being remedied, and such incorrect, false or misleading representation, warranty, statement or omission is rendered no longer incorrect, false or misleading in any material respect within thirty (30) days following the earlier of (x) the date that the Contractor obtained, should have obtained or could be deemed to have obtained, knowledge of such incorrect, false or misleading representation, warranty or omission or (y) the date of notice thereof from the Operator to the Contractor; |
(k) |
failure by the Contractor to comply with Applicable Laws in connection with its activities under this Agreement in all material respects; |
(l) |
failure by the Contractor, its Subcontractors, Suppliers of material and furnishers of services to cooperate in any material respect with the Office of the Inspector General of the U.S. Department of Homeland Security, including, without limitation, with its integrity monitor and such failure is not cured within (x) three (3) Business Days or (y) such different period as may be required by the Office of the Inspector General of the U.S. Department of Homeland Security (which, if greater than the period set forth in clause (x), the requirements shall be evidenced in writing from the Office of the Inspector General of the U.S. Department of Homeland Security; |
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(m) |
failure by the Contractor to comply with the provisions of Section 7.1 (including failure to comply with the requirements relating to the amount, terms or coverage of insurance) that is uncured retroactively to the first day of non-compliance and continues for ten (10) Business Days following the Contractor’s receipt of a notice of such failure from the Operator, provided that no Event of Default (as defined in the Lease Agreement) has occurred and is continuing in connection with such failure by the Contractor; |
(n) |
failure of the Contractor to comply with the provisions of Section 63 (Non-Discrimination) of the Lease Agreement that is uncured and continues for fifteen (15) Business Days following the Contractor’s receipt of a notice of such failure from the Operator, provided that no Event of Default (as defined in the Lease Agreement) has occurred and is continuing in connection with such failure by the Contractor; |
(o) |
failure of the Contractor to comply with the provisions of Section 4.4 of this Agreement; |
(p) |
failure by the Contractor to comply with the requirements set forth in, and in accordance with, Section 9 (Security) of the Lease Agreement that is uncured and continues for three (3) Business Days following the Contractor’s receipt of a notice of such failure from the Operator, provided that the Port Authority has not initiated any enforcement action under the Lease Agreement in connection with such failure by the Contractor; |
(q) |
the Guarantor, the Performance Guarantor or, in the case of a Replacement Guaranty, any Additional Guarantor, fails to perform any obligation or covenant under any Parent Company Guaranty; |
(r) |
any Parent Company Guaranty ceases for any reason to be in full force and effect, unless the Parent Company Guaranty (or any component thereof) has been terminated as provided for in Section 24.7 of this Agreement, and such default remains unremedied for a period of thirty (30) days following the date on which the Parent Company Guaranty ceases to be in full force and effect; or |
(s) |
The Consent to MCDA shall terminate as a result of a Contractor default thereunder. |
20.2Remedies for Contractor Event of Default
(1) |
If a Contractor Event of Default occurs, the Operator may, subject to any limitations under the Lease Agreement; |
(a) |
terminate this Agreement upon sixty (60) days’ written notice to the Contractor whereupon, on the date specified in such notice, the Contractor will vacate the Premises specifically and Terminal One generally; and/or |
(b) |
exercise any or all other remedies available to it at law or in equity including but not limited to bringing an action for recovery of any amounts due and unpaid by the Contractor hereunder and/or for damages including but not limited to all Losses and expenses reasonably incurred by the Operator as a result of such Contractor |
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Event of Default and all costs and expenses reasonably incurred by the Operator in the exercise of its remedies including but not limited to reasonable attorneys’ fees and expenses and reasonable costs of hiring a new service provider to replace the Contractor.
20.3Operator Events of Default
Each of the following events will constitute an “Operator Event of Default”, provided that no event will constitute an Operator Event of Default if it is caused, directly or indirectly, by the Contractor, any Affiliate of Contractor or any person to whom Contractor has subcontracted a portion of the Services to:
(1) |
any representation or warranty of the Operator made in this Agreement proves to be false or misleading when made and has or will have at any time a material adverse effect on the performance of the Services in accordance with Best Management Practice and/or results in material economic or reputational harm to the Contractor, and the Operator fails to remedy such false or misleading representation or warranty within thirty (30) days following written notice by the Contractor; |
(2) |
any failure by the Operator to perform a material obligation under this Agreement, and such failure continues for thirty (30) days following written notice by the Contractor (except where fulfillment of its obligation requires activity over a period of time and the Operator shall have commenced to perform whatever may be required for fulfillment within twenty (20) days after receipt of notice and diligently continues such performance without interruption, except for causes beyond its control, to completion); |
(3) |
the commencement by the Operator of a voluntary case or other proceeding (without the consent of the Contractor) seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or the Operator makes a general assignment for the benefit of creditors, fails generally to pay its debts as they become due or takes any corporate action to authorize any of the foregoing; |
(4) |
a voluntary or involuntary insolvency case or other proceeding is commenced against the Operator seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or similar law or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property and (i) such proceeding results in the entry of an order for relief or any such adjudication or appointment or (ii) such proceeding remains undismissed, undischarged or unbonded for a period of sixty (60) days; |
(5) |
any failure by the Operator to make any undisputed payment to the Contractor when due and payable in accordance with this Agreement and such failure continues for thirty (30) days following written notice of nonpayment by the Contractor; |
(6) |
the Port Authority terminates the Lease Agreement for an Event of Default, as defined therein; |
(7) |
Phase A DBO fails to occur within two (2) years of the Scheduled Phase Opening Date for Phase A (without giving effect to any extensions thereof that may be permitted or granted |
83
under the Lease Agreement) or Phase B1 DBO fails to occur within two (2) years of the Scheduled Phase Opening Date for Phase B1 (without giving effect to any extensions thereof that may be permitted or granted under the Lease Agreement); or
(8) |
All of the Premises in a Phase is not delivered in the Required Delivery Condition by the Phase Opening Date for such Phase. |
20.4Remedies for Operator Event of Default
(1)If an Operator Event of Default occurs, the Contractor may:
(a) |
terminate this Agreement upon sixty (60) days’ prior written notice to the Operator, whereupon, on the date specified in such notice, the Contractor will vacate the Premises specifically and Terminal One generally, and the Operator shall pay Contractor an amount equal to any remaining unamortized Contractor Investment, calculated on a straight-line basis; and/or |
(b) |
subject to any limitations under the Lease Agreement, exercise any or all other remedies available to it at law or in equity including but not limited to charging interest at a rate of 2% per annum on past due amounts, bringing an action for recovery of any amounts due and unpaid by the Operator hereunder and/or for damages, including but not limited to all losses and expenses reasonably incurred by the Contractor as a result of such Operator Event of Default and all costs and expenses reasonably incurred by the Contractor in the exercise of its remedies (including but not limited to reasonable attorneys’ fees). |
(2) |
For the avoidance of doubt, the Operator will be responsible for all Management Fees and expenses payable under this Agreement during the period between the date that the Contractor provides its notice of termination and the actual date of termination of this Agreement. |
ARTICLE 21– TERMINATION
21.1Termination
(1) |
Subject to the rights of the Lenders and the Port Authority, this Agreement will terminate upon the earliest to occur of the following: |
(a) |
the end of the Term; |
(b) |
mutual agreement of the Parties in writing to terminate this Agreement, subject to the prior written consent of the Port Authority and/or the Collateral Agent, to the extent required pursuant to the Lease Agreement and/or the Financing Documents, as applicable; |
(c) |
the termination of this Agreement following a Contractor Event of Default in accordance with Section 20.2, or an Operator Event of Default in accordance with Section 20.4; |
(d) |
as expressly provided for in Section 3.11(3) of this Agreement; |
84
(e) |
with thirty (30) days’ prior written notice by the Port Authority to the Contractor and the Operator of its revocation of its consent to this Agreement in accordance with the terms of this Agreement; |
(f) |
termination of the Lease Agreement; or |
(g) |
revocation by the Port Authority of the Consent to MCDA. |
(2) |
Notwithstanding any other provision of this Agreement: |
(a) |
in the event the Operator or the Port Authority exercise their respective rights to terminate or revoke consent to this Agreement in accordance with the terms hereof or the Consent to MCDA, the Contractor shall cooperate with the assignments of all Concession Subleases to Operator or its designees, and shall be obligated to reimburse the Operator and the Port Authority for any and all personnel and reasonable legal costs (including but not limited to the cost to the Operator or the Port Authority of in-house legal services) and disbursements incurred by it arising out of, relating to, or in connection with the enforcement or revocation of this Agreement including, without limitation, legal proceedings initiated by the Operator or the Port Authority to exercise its revocation or termination rights and to collect all amounts due and owing to the Operator under this Agreement; |
(b) |
in the event that this Agreement is terminated due to the termination of the Lease Agreement pursuant to Section 21.1(1)(f), neither Party nor the Port Authority will be liable for any lost profits or business opportunity of the other Party but subject to the right of the Port Authority to request a new contract as provided in Section 6.2(3); and |
(c) |
in the event that the Contractor elects to terminate this Agreement due to the Parties’ inability to reach an agreement on the amount of relief owed to the Contractor pursuant to 21.1(1)(d), the Contractor agrees to forfeit any remaining unamortized Contractor Investment, except as otherwise provided herein under Section 5.2(2)(b), Section 5.2(2)(c), Section 5.2(2)(d), Section 5.2(2)(e) or Section 5.2(2)(g). |
(3) |
Upon termination of this Agreement, the Contractor will cease performance of the Services and vacate, surrender and hand back the Premises to the Operator, at no charge to the Operator, in as-is condition, provided that Contractor shall vacate, surrender and hand back to the Operator the dedicated office space provided for in Section 8.1(1) in broom-clean condition, subject to ordinary wear and tear. The Contractor shall execute and deliver such instruments as may be required by the Operator to effectuate such transfer and conveyance. |
(4) |
After the effective date of any such termination or upon the Expiration Date of this Agreement, no further Services shall be performed by the Contractor, except that the Contractor shall cooperate to accomplish an orderly transfer of the Services to the Operator or to any entity designated by Operator including the transfer of the Operator’s property. |
(5) |
Upon the expiration or termination of this Agreement, the Contractor shall (i) deliver to the Operator, in a format usable to the Operator, as the Parties shall agree, copies of (x) all Contractor Data; (y) all Dedicated Terminal One Materials (including source code in any software included therein) and (z) if and as agreed by the Parties pursuant to Section 16.3, |
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any Shared Contractor Material, in each case of (x), (y) and (z), to the extent that such are in the Contractor’s possession or control at that time; (ii) cease use of any Contractor Data, Dedicated Terminal One Materials and, if and as agreed by the Parties pursuant to Section 16.3, any Shared Contractor Materials; (iii) grant the Operator an irrevocable, perpetual, fully paid-up, royalty-free, non-transferable (except to an Affiliate), sublicenseable, license to use, reproduce, distribute, enhance or modify (including to create derivative works of) all Intellectual Property Rights, including any Background Intellectual Property, included in any Contractor Data or Contractor Materials delivered pursuant to the foregoing clause (i) and in any Contractor Materials otherwise in Operator’s possession and necessary to operate Terminal One, for use solely at Terminal One; and (iv) except as set forth in the next sentence, have no obligations to the Operator whatsoever with respect to any such Contractor Materials, including with respect to support or maintenance, or any Contractor Intellectual Property Rights, including the maintenance, administration, protection or enforcement thereof. Prior to or upon expiration or termination of this Agreement, the Parties shall discuss in good faith the extent to which the Contractor may provide to the Operator post-termination support for any transitional use of any Contractor Materials, including the terms and conditions of such support. The Operator expressly acknowledges that some or all of the Contractor Materials may not be usable to it, or have any or all of the expected functionalities, post-termination, when they are not operated by the Contractor on the Contractor’s systems or because the Contractor is no longer supporting them.
(6) |
The terms of this Article 21 shall survive the expiration or earlier termination of this Agreement. |
(7) |
Termination hereunder shall not relieve the Contractor, or the Operator, of any liabilities or obligations under this Agreement which shall have accrued on or prior to, or which shall take effect on, the effective date of termination. Termination hereunder shall have the same effect as though such date was the original expiration date of this Agreement, except as otherwise specified herein. Termination pursuant hereto shall create no obligation on the part of the Operator other than as expressly set forth herein. |
21.2Attornment.
(1) |
On the termination of the Lease Agreement prior to the Expiration Date, the Contractor shall attorn to, or shall enter into a direct agreement with, (i) each Recognized Mortgagee under the Lease Agreement that is party to a Lender RNDA with the Contractor and such Recognized Mortgagee is not in default thereunder (or any designee or nominee of such Recognized Mortgagee), at such Recognized Mortgagee’s (or designee’s or nominee’s) option, in connection with any assignment or foreclosure of the Lease Agreement, or (ii) subject to the rights of the Recognized Mortgagee under Section 83 of the Lease Agreement, the Port Authority, at the Port Authority’s option, with notice to the Contractor and the Operator delivered at or prior to such effective date of termination of the Lease Agreement that the Port Authority shall and does assume the rights and obligations of the Operator thereunder from and after such effective date of termination (provided, that the Port Authority shall have no responsibility or liability and obligation to the Contractor for obligations and liabilities of the Operator that accrued prior to the date on which the Port Authority assumes the rights and obligations of the Operator under this Agreement), it being understood that the Port Authority shall have the right, but not the obligation, to be assigned and to assume the Operator’s rights and obligations under this Agreement and, further, it being understood that the Port Authority shall have no obligation to enter into any form of non-disturbance or recognition agreement with the Contractor or any |
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Concession Sublessee, under other circumstances, in each case, for the balance of the unexpired term of this Agreement. For the avoidance of doubt, nothing contained herein shall be deemed to require the Port Authority to enter into a direct contractual arrangement with the Contractor. The Operator and the Contractor, on termination of the Basic Lease will, at the option of The City of New York, enter into a direct consent with The City of New York on terms identical with the Consent to MCDA executed with the Port Authority.
21.3[**]
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ARTICLE 22 - INDEMNIFICATION
22.1Indemnification.
(1) |
Each Party (such Party, the “Indemnifying Party”) shall indemnify, save, hold harmless, and defend the other Party and their respective directors, officers, members, affiliates, employees, representatives, agents and consultants (the “Indemnified Parties”), individually and collectively, from and against any and all claims, actions, losses, damages, injuries, liabilities, costs and expenses (each a “Claim”) of whatsoever kind or nature (including reasonable attorney fees, disbursements, court costs, and expert fees) to the extent arising from the Indemnifying Party’s (or its directors, officers, members, affiliates, employees, representatives, agents and consultants) acts, omissions, or breaches or defaults under this Agreement, except to the extent such Claim is due to or caused by the gross negligence or willful misconduct of the applicable Indemnified Party. With respect to its |
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obligations under this Section 22.1, the Indemnifying Party, at its own expense, shall, at the request of an Indemnified Party, defend any suit based upon any such claim using counsel approved in writing by the Indemnified Party. In any such suit, the Indemnifying Party shall not agree to or accept any settlement without the consent of such Indemnified Party, such consent not to be unreasonably withheld or delayed.
(2) |
Without limiting any other indemnity, hold harmless or defense obligations of the Contractor hereunder, or any rights and remedies available to the City Insureds at law or in equity, the Contractor shall indemnify the City Insureds with respect to all matters described in Section 31 of the Basic Lease that arise out of the Contractor’s operations at the Airport, or arise out of the acts or omissions of the Contractor’s officers, employees, agents, representatives, managers and members (if the Contractor is a limited liability company), partners (if the Contractor is a limited partnership or general partnership), contractors, customers, business visitors and guests at the Airport. |
(3) |
To the extent that any Claim pursuant to this Section 22.1 arose during the term of this Agreement, the provisions of this Section 22.1 shall survive the expiration, termination or early cancellation of this Agreement, for a period of equal to the relevant statute of limitations period in the State of New York applicable to such claim, following the date of such expiration, termination or early cancellation of this Agreement. |
(4) |
Any final judgment, after any applicable appeal process, rendered against any Party by a court of competent jurisdiction for any cause for which the other Party is liable hereunder shall be conclusive against such party as to liability and amount upon the expiration of the time for appeal therefrom. |
22.2Contractor Obligations to Cease Performance
(1) |
The Contractor acknowledges and agrees that the failure of the Contractor or any other Contractor-Related Entity to cease to perform the operations at the Airport authorized by this Agreement and the Consent to MCDA (i.e., vacate the Premises) from the effective date of the expiration or termination of the Lease Agreement will or may cause the Operator and the Port Authority injury, damage or loss. The Contractor hereby assumes the risk of such injury, damage or loss and hereby agrees that it shall be responsible for the same and shall pay the Operator and the Port Authority for the same whether such losses or damages are foreseen or unforeseen, special, direct, consequential or otherwise. |
(2) |
Without limiting any other indemnity, hold harmless or defense obligations of the Sublessee hereunder, or any rights and remedies available to the Port Authority at law or in equity, the Contractor hereby expressly agrees to indemnify and hold the Operator Indemnified Parties and the Port Authority Indemnified Parties harmless against any such injury, damage or loss described in subsection (1) above. The Contractor acknowledges that the Operator and the Port Authority reserve all of their respective legal and equitable rights and remedies in the event of such failure by the Contractor to cease performance of the authorized operations. The Contractor and the Operator each hereby acknowledges and agrees that, subject to the foregoing, all terms and provisions of the Consent to MCDA shall be and continue in full force and effect during any period following such expiration or termination of the Lease Agreement. |
ARTICLE 23– DISPUTE RESOLUTION
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23.1Dispute Resolution
(1) |
The Parties will cooperate in good faith with each other in resolving all controversies, claims or disputes between the Parties arising out of or relating in any way to this Agreement or its alleged breach (a “Dispute”). |
(2) |
In the event of any Dispute related to any payment of money under this Agreement or whether a proposed assignee or transferee satisfies the requirements of an Eligible Contractor Assignee, senior executives of each Party will promptly meet and conduct good-faith negotiations to resolve any such Dispute within fifteen (15) days (such fast-track dispute resolution procedure will be referred to as the “Fast-Track Procedure”), except to the extent that such Disputes are subject to corresponding proceedings under the Lease Agreement, in which case the timetable in the relevant provisions of the Lease Agreement will apply. |
(3) |
If any Dispute described in Section 23.1(2) cannot be settled through good-faith negotiations under the Fast-Track Procedure within fifteen (15) days, or if any other Dispute under this Agreement cannot be settled through good-faith negotiations within twenty (20) Business Days, then either Party may submit the Dispute to binding and final arbitration to be conducted in New York, New York, in accordance with the Rules of Arbitration of the International Chamber of Commerce, provided that any Dispute as to whether a proposed assignee or transferee satisfies the requirements of an Eligible Contractor Assignee shall be submitted to an industry expert reasonably acceptable to the parties for final determination, which determination shall be binding on the parties. For the avoidance of doubt, in the event of any Dispute with respect to the determination of an Eligible Contractor Assignee, no assignment will be effective prior to the date such Dispute had been resolved pursuant to the terms hereof. |
23.2Participation in Dispute Resolution under Lease Agreement
The Contractor will, in addition to participating in any Dispute resolution proceeding under Section 23.1, participate in any Dispute resolution proceeding pursuant to Section 90 (Dispute Resolution) of the Lease Agreement, if such participation is requested by either the Port Authority or the Operator.
23.3Attornment
Other than for matters that may be submitted to arbitration under Section 23.1, either Party may include by joinder to any legal actions or proceedings brought under Section 23.1 any Person entitled to indemnification pursuant to this Agreement, to the extent such Person is substantially involved in a common question of law or fact whose presence is required if complete relief, is to be accorded in the legal action or proceeding.
ARTICLE 24 – GENERAL
24.1Independent Contractor
(1) |
The Contractor is an independent contractor and no employment, partnership, joint venture or agency will be created or will be deemed to be created by this Agreement or by any action of the Parties under this Agreement. |
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(2) |
The Contractor will not have the authority and will not purport to act on behalf of, or make any commitment purporting to be binding on, the Operator or its agents or representatives except as expressly authorized by the Operator. |
(3) |
For federal, state and local income tax purposes, the Parties shall not treat this Agreement as a partnership and shall file their tax returns consistently with such treatment unless otherwise required by a determination (as defined in Section 1313 of the Internal Revenue Code of 1986, as amended, and any other similar applicable provision of state and local tax law). |
24.2Currency
All references in this Agreement to “dollars” or “$” are references to dollars in the currency of the United States of America.
24.3No Liability
No director, officer, agent or employee of any Party will be charged personally or held contractually liable by or to the other Parties under any term or provision of this Agreement or because of such Party’s execution or attempted execution of this Agreement or because of any breach or alleged or attempted breach of this Agreement.
24.4Third Party Beneficiaries
(1) |
The Parties acknowledge and agree that the Port Authority is a third-party beneficiary of this Agreement, and subject to the rights of the Recognized Mortgagee, the Port Authority shall have the right, as a third-party beneficiary, throughout the term of this Agreement, to enforce directly against the Contractor the obligations of the Contractor under this Agreement as if it was a party hereto. This Section 24.4 will inure to the benefit of the Port Authority and its successors and assigns. |
(2) |
Notwithstanding Section 24.4(1), except for the Port Authority, the Port Authority Indemnified Parties or the Lenders, there shall be no third-party beneficiaries of this Agreement. This Agreement shall be effective only as between the Parties hereto (and their successors and assigns, if, as and to the extent permitted under this Agreement), and shall not be construed as creating or conferring upon any Person or entity any right, remedy or claim under or by reason of this Agreement. |
24.5Further Assurances
The Parties will execute, acknowledge, deliver, file and record such further certificates, amendments, instruments and documents, and do all such other acts and things, as may be required by law or as may be necessary or advisable to carry out the intent and purposes of this Agreement.
24.6Severability
If any term or provision of this Agreement or the application thereof to any Person or circumstances will to any extent be held invalid and unenforceable, the remainder of this Agreement, or the application of such term or provision to Persons or circumstances other than those as to which it is held invalid or unenforceable, will not be affected thereby, and each term and provision of this Agreement will be valid and will be enforced to the extent permitted by Applicable Law.
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24.7Assignment
(1) |
Neither Party will Transfer this Agreement without the consent of the other Party, except as set forth in this Section 24.7. |
(2) |
(A) The Operator will have the right to Transfer this Agreement (i) pursuant to the Lease Agreement and (ii) as collateral for the benefits of each Lender that is party to a Lender RNDA (acting directly or through an agent acting on behalf of such Lender) with the Contractor and such Lender is not in default thereunder and (B) indirect Transfers permitted under the Lease Agreement, by way of transfers of equity interests of the Operator or otherwise, shall not require the consent of the Contractor. |
(3) |
Notwithstanding the foregoing subject to compliance with any applicable provisions of the Lease Agreement: |
(a) |
the Contractor may transfer this Agreement or a direct or indirect equity interest in Contractor to an Affiliate upon five (5) days prior written notice, provided that (i) in the case of a transfer of this Agreement, such Affiliate is an Eligible Contractor Assignee, and (ii) in any case, each Parent Company Guaranty remains in effect; provided that, if such Affiliate is a Qualified Financial Sponsor or a Replacement Guaranty is provided, the applicable Parent Company Guaranty shall be automatically (x) reduced pro rata, in the case of a transfer to an Affiliate of less than all of the equity interest in the Contractor, or (y) terminated, in the case of a transfer to an Affiliate of this Agreement or all of the equity interest in the Contractor; |
(b) |
transfers or issuances of shares in any publicly traded entity (or any transactions involving such entity) and transfers of direct or indirect equity interests in any Unibail-Rodamco-Westfield Sponsor shall be permitted at all times without the consent of the Operator or the Port Authority; |
(c) |
any other direct or indirect transfer of less than 50% the equity interests in the Contractor (in one or more transactions) will be permitted at all times upon thirty (30) days prior written notice without the consent of the Operator if the Parent Company Guaranty remains in effect, provided that the transferee may provide a Replacement Guaranty so long as the Guarantor and any such Additional Guarantor shall be jointly and severally liable; and |
(d) |
any other direct or indirect transfer of 50% or greater of the equity interests in the Contractor (in one or more transactions) will be permitted at all times upon thirty (30) days prior written notice without the consent of the Operator if (i) the transferee is an Eligible Contractor Assignee and (ii) each Parent Company Guaranty remains in effect, provided that the transferee may provide a Replacement Guaranty with respect to the Parent Company Payment Guaranty and/or the Parent Company Performance Guaranty for all or any portion of the obligations guaranteed thereby, and the applicable Parent Company Guaranty shall be automatically reduced accordingly, or terminated if the transferee’s Replacement Guaranty guarantees 100% of the obligations guaranteed by the applicable Parent Company Guaranty replaced thereby, provided, further, that if at any time the Parent Company Payment Guaranty or Parent Company Performance Guaranty is terminated and there are two or more Additional Guarantors providing |
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Replacement Guarantees to replace such terminated Parent Company Guaranty, such Additional Guarantors shall be jointly and severally liable with respect to the applicable Parent Company Guaranty.
(4) |
The Contractor may, without the Operator’s consent but subject to compliance with Section 3.2(8) (if applicable), sub-contract any part of its rights or obligations under this Agreement, and provide either directly or through its sub-contractor any aspect necessary for the delivery of the Project and the Contractor’s obligations set forth in this Agreement. Notwithstanding the foregoing, except as expressly provided in this Agreement, the Contractor shall not sub-sublease, sub-sublicense or assign all or any portion of the Premises or any of its rights under this Agreement, directly or indirectly by operation of law or otherwise, or enter into any amendment or modification to or extension of an existing sub-sublease or sub-sublicense, without the prior written consent of the Port Authority and the Operator (it being understood and agreed that in no event shall any sub-sublease, sub-user agreement or sub-sublicense ever be deemed to be an Exempt Sublease (as such term is defined in the Lease Agreement)). |
(5) |
If the Operator reasonably believes that a proposed assignee or transferee does not satisfy the requirements of clauses (i) or (ii) of the definition of Eligible Contractor Assignee, then such Dispute shall be submitted to the Fast-Track Procedure in accordance with Section 23.1(2). |
24.8No Port Authority Obligation
The Contractor agrees that neither any assignment by the Operator to the Port Authority of its interest under this Agreement, nor the application or payment of security deposits to or for the benefit of the Port Authority, nor any direction to the Contractor to pay rent or other amounts to the Port Authority, nor the payment thereof to and acceptance thereof by the Port Authority shall constitute or denote an assumption by the Port Authority of any of the obligations of the Operator under this Agreement.
24.9Entire Agreement
This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and cancels and supersedes any prior understanding or agreement of the Parties with respect to the subject matter hereof. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, expressed, implied, or statutory among the Parties, other than those expressly set forth herein.
24.10Consistency with Lease Agreement Requirement and Project Documents
(1) |
Notwithstanding Section 24.9 to the extent that this Agreement contains any provisions that: |
(a) |
do not comply with or are inconsistent with the relevant terms of the Project Documents, including but not limited to terms that do not comply or are inconsistent with the applicable requirements of Section 66 (Books and Records) of the Lease Agreement regarding maintenance of Books and Records; |
(b) |
fail to incorporate the requirements of Applicable Law, Applicable Standards and Rules and Regulations set forth in the Lease Agreement; or |
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(c) |
are inconsistent with the requirements of the relevant scope of Services applicable to this Agreement, |
such provisions will be of no force and effect to the extent of such non-compliance, failure or inconsistency.
24.11Survival
In addition to the indemnification duration set out in Sections 22.1 and 4.4, the duration for confidentiality covenants set out in Section 4.6, and the Port Authority Step-In Right contained in Section 6.2 shall survive the termination or expiration of this Agreement.
24.12Notices and Communications
(1) |
All notices or documents authorized or required to be given pursuant hereto will be in writing, and will be delivered by hand or courier delivery or transmitted by facsimile, electronic mail or other electronic means in accordance with the following: |
To the Operator:
JFK NTO, LLC
Gerrard P. Bushell
Executive Chair
30 Broad Street, 25th Floor
New York, NY 10004
Email: gbushell@onejfk.com
with a copy to:
Allen & Overy LLP
1221 Avenue of the Americas
New York, NY 10020
Attention: Jillian Ashley
Email:
Jillian.Ashley@AllenOvery.com
To the Contractor:
URW Airports JFK T1, LLC
2049 Century Park East
41st Floor
Los Angeles, CA 90067
Attention: Legal Department ; EVP and Group Director, Airports
(2) |
Notices will be deemed received when actually received in the office of the addressee (or by the addressee if personally delivered) or, when delivery is refused, as shown on the receipt of the U.S. Postal Service, private carrier or other Person making the delivery. If mailed, notices will be deemed effective and served as of the date of the return of verification of delivery of certified or registered mailing of the notice, or one (1) day after deposit with a recognized express overnight mail or courier service. If delivered via |
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electronic mail, notices will be deemed effective and served as of the date of the return of electronic receipt confirmation.
(3) |
Either Party may change its address for notice by notifying the other Party with a notice in accordance with this Section 24.12. |
24.13Counterparts
This Agreement may be executed in one or more counterparts, each of which will be deemed an original, and such counterparts will together constitute one and the same contract.
24.14Electronic Execution
This Agreement may be executed by the Parties and delivered by fax or other electronic means and if so executed and delivered this Agreement will be for all purposes as effective as if the Parties had executed and delivered an executed original of this Agreement.
24.15Waiver of Jury Trial
EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT THAT IT MAY HAVE TO A JURY TRIAL WITH RESPECT TO ANY CLAIM, CAUSE OF ACTION OR OTHER PROCEEDING IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
24.16Governing Law
(1) |
This Agreement and any claim, dispute or controversy arising out of, under or related to this Agreement, the relationship of the Parties under this Agreement, or the interpretation and enforcement of the rights and obligation of the Parties under this Agreement will be governed by, and interpreted and enforced in accordance with, the laws of the State of New York, without regard to conflicts of laws principles. |
(2) |
Each Party agrees to submit, to the fullest extent permitted by Applicable Law, to the jurisdiction of any New York State court, the U.S. District Court for the Southern District of New York, in each case, sitting in the City and County of New York and any subsequent appellate court, for the settlement of any claim or Dispute arising out of, under or related to this Agreement or any transaction contemplated by this Agreement. Each Party also waives, to the fullest extent permitted by Applicable Law, any objection that it may have now or in the future to the laying of venue in such courts on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with this Agreement or any transaction contemplated by this Agreement. |
24.17Amendments
(1) |
This Agreement may not be amended or modified except by an instrument executed in writing by the Parties, provided that any purported amendment, supplement or extension of this Agreement which does not have the express written approval of the Port Authority to the extent required under the Lease Agreement or the Consent to MCDA shall be void ab initio and of no effect whatsoever. |
24.18No Waiver.
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Other than as expressly set out herein, no failure on the part of any Party or any of its agents to exercise, and no course of dealing with respect to, and no delay in exercising any right, power or remedy hereunder will operate as a waiver thereof.
24.19Successors and Assigns
This Agreement is binding upon and will inure to the benefit of the Operator and the Contractor and their respective successors and permitted assigns.
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IN WITNESS WHEREOF, the Parties hereto have executed these presents as of the day and year first above written.
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JFK NTO LLC |
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By: |
/s/ Gerrard Bushell |
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Name: |
Gerrard Bushell |
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Title: |
Authorized Signatory |
[Signature Page — MCDA]
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URW Airports JFK T1, LLC |
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By: |
/s/ Andrea J. Kahn |
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Name: |
Andrea J. Kahn |
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Title: |
Assistant Secretary |
[Signature Page — MCDA]
SCHEDULE 1
REQUIRED DISCLOSURES
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SCHEDULE 2
ADDITIONAL MANDATORY SUBLEASE PROVISIONS
1.Indemnification of Port Authority Indemnified Parties.
(a)Without limiting any other indemnity, hold harmless or defense obligations of the Contractor hereunder, or any rights and remedies available to the Port Authority at law or in equity, the Contractor shall be obligated to indemnify and hold harmless the Port Authority Indemnified Parties from and against, and shall reimburse such Port Authority Indemnified Parties for such Port Authority Indemnified Parties’ Losses, incurred in connection with the defense of, all Third-Party Claims, including, but not limited to, Third-Party Claims for death or personal injuries, or for property damages (including claims and demands of The City of New York for indemnification by the Port Authority arising by operation of law or through agreement of the Port Authority with The City of New York), arising out of or in any way relating to: (i) any breach or default of any term or provision of this Agreement; (ii) the use, occupancy, operation, design, construction and financing of the Premises, and any and all activities in furtherance thereof, in each case, by the Contractor, or other Contractor-Related Entities, or others with the consent of the Contractor; (iii) any other acts or omissions of the Contractor, or other Contractor-Related Entities, or its guests, invitees or other persons who are doing business with the Contractor, in each case, on the Premises; and (iv) any other acts or omissions of the Contractor or any other Contractor-Related Entity, or their officers, representatives, agents, contractors, employees, members (if the Contractor or Contractor-Related Entity is a limited liability entity), managers (if the Contractor or Contractor-Related Entity is a limited liability entity), and partners (if the Contractor or Contractor-Related Entity is a partnership) on any other portion of the Airport in connection with this Agreement (any such Third-Party Claim, an “Indemnified Claim”); provided that in each case the foregoing indemnity for any Indemnified Claim shall not apply to Third-Party Claims arising from the gross negligence or willful misconduct of the Port Authority or any officer, employee or agent of the Port Authority; and provided further that the foregoing indemnity shall not apply to Losses suffered by the Contractor caused solely as a result of the negligence of the Port Authority, as finally determined pursuant to a non-appealable judgment of a court of competent jurisdiction.
(b)The Port Authority shall have the right, exercisable in its sole and absolute discretion, to either assume control of the defense, at the Contractor’s sole expense, or to require the Contractor to defend, at the Contractor’s sole expense, with counsel satisfactory to the Port Authority Indemnified Party, any suit based upon any Indemnified Claim (even if such Indemnified Claim is groundless, false or fraudulent). If so directed by the Port Authority, the Contractor shall defend, at the Contractor’s sole expense, with counsel satisfactory to the Port Authority Indemnified Party, any suit based upon any Indemnified Claim (even if such Indemnified Claim is groundless, false or fraudulent). The Contractor, its contractors, and each of their respective subcontractors, subconsultants and insurers, shall not, without obtaining the express advance written permission of the General Counsel of the Port Authority, raise any defense involving in any way the jurisdiction of any court, tribunal, agency, special district, commission, or other authority exercising judicial or regulatory functions over the person of the Port Authority, the immunity of the Port Authority, its Commissioners, directors, officers, agents, or employees, their affiliates, successors and/or assigns, the governmental nature of the Port Authority, or the provisions of any statutes respecting suits against the Port Authority. The Port Authority and the Contractor shall reasonably cooperate, and the Port Authority shall endeavor to cause the applicable Port Authority Indemnified Party to reasonably cooperate, in the defense of any action or proceeding based upon any Indemnified Claim. Other than with respect to the Port Authority in accordance with the conditions set forth in the immediately following sentence, the Contractor shall not have the right to settle any such Indemnified Claim against a Port Authority Indemnified Party without the prior written consent of such Port Authority Indemnified Party.
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The Contractor shall not have the right to settle any such claim or demand against the Port Authority or other Port Authority Indemnified Party without the prior written consent of the Port Authority or such Port Authority Indemnified Party unless such settlement (i) does not require a payment from the Port Authority or such other relevant Port Authority Indemnified Party, (ii) will result in a full release of the Port Authority or such other relevant Port Authority Indemnified Party from any further liability with respect to such Indemnified Claim and (iii) does not require the Port Authority or such other relevant Port Authority Indemnified Party to admit any fault or liability on the part of the Port Authority or such other Port Authority Indemnified Party.
2.Additional Certifications.
(a)The Contractor hereby certifies that, and covenants that during the term of this Agreement, none of (x) the Contractor, any of its Affiliates, any direct or indirect parent of the Contractor or any wholly-owned subsidiary of the Contractor, (y) to the best knowledge of the Contractor, any beneficial owner of a ten percent (10%) or more interest in, the Contractor, and (z) to the best knowledge of the Contractor, with respect to clauses (i), (v), (vi), (vii), (viii), (ix), (x) and (xi), each of the Contractor’s chief executive officer, chief operating officer, chief financial officer, treasurer, general counsel, president and any other similar executive management level officer:
(i) |
has been convicted of, plead guilty to, or is under indictment for, any felony; |
(ii) |
with respect to the Contractor only, has ever used a name, trade name or abbreviated name or federal taxpayer identification number other than such names or federal taxpayer identification number(s) reported to the Operator by the Contractor in connection with this Agreement; |
(iii) |
has been party to an agreement which was terminated by the Port Authority, for cause, prior to its expiration date (other than any such party with which the Port Authority has subsequently entered into another agreement relating to similar subject matter); |
(iv) |
as of the effective date of this Agreement: (A) is in default beyond any applicable grace period under any agreement with the Port Authority, or (B) has been, within the preceding five (5) years, in default beyond any applicable grace period under any agreement with the Port Authority; |
(v) |
in connection with obtaining this Agreement or performing its rights or obligations pursuant to the terms hereof, has created any conflict of interest in violation of the Public Officers Law of the State of New York; |
(vi) |
has been suspended, debarred, found not responsible or otherwise disqualified from entering into any contract with any Governmental Authority or been denied a government contract for failure to meet standards related to integrity; |
(vii) |
has had a contract terminated by any Governmental Authority for breach of contract or for any cause based in whole or in part on an indictment or conviction; |
(viii) |
has had any business or professional license suspended or revoked within the previous five (5) years; |
(ix) |
has had any sanction imposed as a result of a judicial or administrative proceeding related to fraud, extortion, bribery, bid rigging, embezzlement, misrepresentation or anti-trust regardless of the dollar amount of the sanctions or the date of their imposition; |
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(x) |
has been, or is currently, the subject of a criminal investigation by any federal, state or local prosecuting or investigative agency and/or a civil antitrust investigation by any federal, state or local prosecuting or investigative agency (in each case as to which it has been made aware); |
(xi) |
has been indicted or convicted of any crime in any jurisdiction; and |
(xii) |
is a person or entity with whom the Port Authority is restricted from doing business under the regulations of the Office of Foreign Assets Control (“OFAC”) of the United States Department of the Treasury (including, without limitation, those named on OFAC’s Specially Designated and Blocked Persons list) or under any statute, executive order or other regulation relating to national security or foreign policy (including, without limitation, (i) Executive Order 13224 of September 23, 2001, Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism, (ii) the USA PATRIOT Act (including the anti-terrorism provisions thereof), (iii) the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701, et seq., and (iv) the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq.), or other governmental action related to national security, the violation of which would also constitute a violation of law. |
(b)No later than twenty (20) days prior to the Effective Date, the Contractor shall have delivered to the Operator, and the Operator shall provide to the Port Authority (with a copy to the Port Authority’s Chief Procurement Officer and General Counsel), the written certifications signed by an authorized officer of the Contractor in the form attached as Exhibit G (Form of Contractor Certification) to the Lease Agreement. The Contractor acknowledges and agrees that if the Contractor is unable to provide such certifications in a timely manner, or if the Port Authority, after disclosing known relevant facts and information to the Operator, reasonably determines based on conclusive evidence known to it at the time, that the Contractor’s certifications are not accurate, the Port Authority shall have the right to disapprove and cancel this Agreement or if the Port Authority’s conclusion is reached after the this Agreement has been executed and takes effect, the Port Authority shall have the right to terminate this Agreement effective immediately upon notice to the Contractor and the Operator; provided that the Port Authority has delivered such termination notice to the Contractor and the Operator within thirty (30) days after the date of execution of this Agreement; provided that the absence of a response from the Port Authority shall not be interpreted as a waiver of the Port Authority’s right to terminate this Agreement. The Port Authority may also conduct an investigation, make inquiries, undergo a vendor integrity check, require a mitigation plan acceptable to the Port Authority or commence any legal action or proceeding, as the Port Authority deems necessary or appropriate, for purposes of verifying compliance with the applicable certifications.
3.Title VI Clauses.
4.[**]
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[**]
5.Contractor Marks.
The Contractor agrees to comply in all respects with the terms and conditions of Annex A (Title VI Clauses for Leases, Deeds, Licenses, Permits, or Similar Instruments Involving Use of Airport Space), attached hereto and hereby made a part hereof (a)The Contractor hereby represents, warrants, and covenants to the Operator and the Port Authority that (i) the Contractor owns or has obtained, and will continue to own or maintain at all times during the Term, the necessary rights to use the trademarks, trade names, trade dress, service marks, copyrights, and other intellectual property used by the Contractor in connection with its business operations at the Premises, including but not limited to, the “[·]” (collectively, “Contractor Marks”); (ii) the Contractor has the right to grant the license for the Contractor Marks, and (iii) none of the Contractor Marks infringe on any third party property rights.
(b)Upon request of the Operator or the Port Authority, the Contractor shall promptly provide evidence reasonably satisfactory to the requesting the Operator and the Port Authority of the Contractor’s compliance with clause (a) above, including but not limited to complete copies of any franchise agreements, intellectual property license agreements, or other related documents.
(c)The Operator may list the Contractor in one or more “Sublessee Directories” to be located within the Operator’s leased Premises for the convenience of passengers. The design, layout, location, size, and placement of any Sublessee Directory and the Contractor’s listing therein shall be at the sole discretion of the Operator. The Contractor hereby grants the Operator and the Port Authority a royalty-free, non-exclusive license to use Concessionaire Marks; provided that such use shall be limited to the following: (i) listing the Contractor’s name on the Operator’s website, and (ii) inclusion of the Contractor’s name and logo in such Sublessee Directories or other marketing or promotional materials describing the Operator’s leased Premises and the Operator or Port Authority generally.
(d)This Agreement shall control in the event of any ambiguity or conflict between the terms hereof and the terms of the Contractor’s franchise or license agreement, as applicable. Accordingly, by way of example only, if the franchisor reserves any rights under the “[·]” franchise agreement to directly, or through a successor franchisee, enter upon, occupy or operate at the Premises in the event of a breach under or termination of the franchise agreement, such reserved rights shall not be binding upon, or enforceable against, the Port Authority or the Operator and neither party intends to grant the franchisor any third party beneficiary rights under this Agreement or the Consent to MCDA. In the event of the revocation, termination or expiration of said franchise agreement or the Contractor’s rights thereunder to operate at the Premises under the “[·]” trade name, the Contractor shall not be entitled to operate at the Premises as a franchisee of another franchisor or under a different “[·]” without the prior written consent of the Port Authority.
(e)Failure to comply with this Section 5 shall be an event of default under this Agreement and the Consent to MCDA, as applicable.
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The Contractor’s obligations to indemnify and hold harmless the Operator and the Port Authority Indemnified Parties and their respective Commissioners, directors, officers, employees, agents and representatives hereunder shall include any claims, damages, losses, risks, liabilities and expenses (including, without limitation, attorney’s fees and disbursements) arising out of, relating to, or in connection with the Contractor’s breach of any of its covenants, representations, and warranties made under this Section 5 including, but not limited to, any claim made by, through or under (i) a franchisor based on, relating to or arising out of the Contractor operating at the Premises as a franchisee and (ii) a third party claiming rights by, through or under the Contractor including, without limitation, any alleged sub-franchisee or sub-licensee.
6.If the Operator shall at any time be in default of its payment obligations under the Lease Agreement, then subject to the rights of the Recognized Mortgagee, the Sublessee shall, on demand of the Port Authority pay directly to the Port Authority any rental, fee or other amount due to the Operator. No such payment shall relieve the Operator from any obligation under the Lease Agreement, but all such payments shall be credited against the obligations of the Operator or of the Contractor as the Port Authority may determine for each payment or part thereof.
7.It is hereby acknowledged and agreed by the Operator and the Contractor that the Port Authority has no obligation under the Lease Agreement or otherwise to pay, subsidize or in any manner whatsoever finance, directly or indirectly, all or any portion of any amount of the Contractor’s unamortized capital investment in the subleased premises. Any specific mention of or reference in this Agreement to the Port Authority in connection with any payment or other compensation to the Contractor, upon termination of this Agreement or the Lease Agreement with or without cause, or revocation of the Port Authority’s consent hereto, of any amount of the Contractor’s unamortized capital investment in the subleased premises or at the Premises shall not be or be deemed to create an obligation or inference of an obligation on the part of the Port Authority to either the Contractor, the Operator or any other Person to pay, subsidize or finance said unamortized capital investment.
8.Applicable Principles in the Event of Assignment of Sublease to Port Authority. Notwithstanding anything to the contrary stated herein, if on the termination of the Lease Agreement prior to the Expiration Date, the Port Authority permits the Contractor to attorn to the Port Authority and become a direct tenant to the Port Authority for the balance of the unexpired term of this Agreement:
(a)references in this Agreement to the landlord being reasonable, not unreasonably withholding, delaying or conditioning its consent, and phrases or language of similar import shall not apply to the Port Authority which instead shall be held to the standard that the Port Authority shall not be arbitrary or capricious;
(b)the following shall not apply to or be of any force or effect as against the Port Authority: (1) any obligation of the Operator to mitigate damages in the event of a default by the Contractor and (2) any obligation of the Operator to provide any written notice of a monetary default inasmuch as the Port Authority shall not be obligated to provide written notice of a monetary default under this Agreement;
(c)all provisions and references in this Agreement shall be subject to, and shall be interpreted giving the fullest effect to, any right of immunity or exemption of the Port Authority from any Applicable Law, any rights derived by the Port Authority from its governmental nature and any protections or other benefits under statute, common law or equity accorded the Port Authority in respect of the performance of its rights and obligations under this Agreement; and
(d)in the event of any other ambiguity, inconsistency, conflict or difference between the terms or provisions of this Agreement, the terms and provisions that shall apply vis-a-vis the Port Authority and the Contractor shall be those which provide the broadest protection to the Port Authority and which shall afford the Port Authority with the greatest rights and remedies.
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9.If the Contractor is a joint venture or partnership, each and every obligation or undertaking stated to be fulfilled or performed by the Contractor pursuant to this Agreement or the Consent to MCDA, shall be joint and several obligation of each partner in the joint venture or partnership (other than any limited partner).
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Annex A
Title VI Clauses for Leases, Deeds, Licenses, Permits, or Similar Instruments
Involving Use of Airport Space
[A5.3.2]
GENERAL CIVIL RIGHTS PROVISIONS
The Contractor (hereinafter referred to as the “Contractor”) agrees to comply with pertinent statutes, Executive Orders and such rules as are promulgated to ensure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance. If the Contractor transfers its obligation to another, the transferee is obligated in the same manner as the Contractor.
This provision obligates the Contractor for the period during which the property is owned, used or possessed by the Contractor and the airport remains obligated to the Federal Aviation Administration. This provision is in addition to that required by Title VI of the Civil Rights Act of 1964.
[A6.4.1]
Compliance with Nondiscrimination Requirements:
During the performance of this contract, the Contractor for itself, its assignees, and successors in interest agrees as follows:
1. |
Compliance with Regulations: The Contractor (hereinafter includes consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts and Authorities, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. |
2. |
Nondiscrimination: The Contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Contractor will not participate directly or indirectly in the discrimination prohibited by the Nondiscrimination Acts and Authorities, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR part 21. |
3. |
Solicitations for Subcontracts, including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Contractor of the contractor’s obligations under this contract and the Nondiscrimination Acts and Authorities on the grounds of race, color, or national origin. |
4. |
Information and Reports: The Contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the sponsor or the Federal Aviation Administration to be pertinent to ascertain compliance with such Nondiscrimination Acts and Authorities and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Contractor will so certify to the sponsor or the Federal |
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Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain the information.
5. |
Sanctions for Noncompliance: In the event of the Contractor’s noncompliance with the non-discrimination provisions of this contract, the sponsor will impose such contract sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to: |
a. |
Withholding payments to the Contractor under the contract until the Contractor complies; and/or |
b. |
Cancelling, terminating, or suspending a contract, in whole or in part. |
6. |
Incorporation of Provisions: The Contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations, and directives issued pursuant thereto. The Contractor will take action with respect to any subcontract or procurement as the sponsor or the Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Contractor may request the sponsor to enter into any litigation to protect the interests of the sponsor. In addition, the Contractor may request the United States to enter into the litigation to protect the interests of the United States. |
[A6.4.4]
A. |
The Contractor for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, “as a covenant running with the land”) that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishing of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the grantee, licensee, lessee, permittee, etc. will use the premises in compliance with all other requirements imposed by or pursuant to the List of discrimination Acts And Authorities. |
B. |
With respect to licenses, leases, permits, etc., in the event of breach of any of the above nondiscrimination covenants, the Port Authority will have the right to terminate the license, permit, etc., as applicable and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said license, permit, etc., as applicable had never been made or issued. |
C. |
With respect to deeds, in the event of breach of any of the above nondiscrimination covenants, the Port Authority will there upon revert to and vest in and become the absolute property of the Port Authority and its assigns. |
[A6.4.5]
Title VI List of Pertinent Nondiscrimination Acts and Authorities
During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to:
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| ● | Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin); |
| ● | 49 CFR part 21 (Non-discrimination in Federally-assisted programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act of 1964); |
| ● | The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 USC § 4601) (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); |
| ● | Section 504 of the Rehabilitation Act of 1973 (29 USC § 794 et seq.), as amended (prohibits discrimination on the basis of disability); and 49 CFR part 27; |
| ● | The Age Discrimination Act of 1975, as amended (42 USC § 6101 et seq.) (prohibits discrimination on the basis of age); |
| ● | Airport and Airway Improvement Act of 1982 (49 USC § 471, Section 47123), as amended (prohibits discrimination based on race, creed, color, national origin, or sex); |
| ● | The Civil Rights Restoration Act of 1987 (PL 100-209) (broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); |
| ● | Titles II and III of the Americans with Disabilities Act of 1990, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 USC §§ 12131 – 12189) as implemented by U.S. Department of Transportation regulations at 49 CFR parts 37 and 38; |
| ● | The Federal Aviation Administration’s Nondiscrimination statute (49 USC § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); |
| ● | Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; |
| ● | Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); |
Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 USC 1681 et seq).
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EXHIBIT A– SERVICES
Exclusive management of any and all non-aeronautical commercial uses of Terminal One located in the Premises pursuant to the Lease Agreement including: Duty Free, Specialty Retail, Convenience Retail, Food & Beverage, Travel Essentials, foreign exchange (e.g., spa, shoe shine, beauty care, etc.). The services shall include enforcement by the Contractor, in its reasonable commercial discretion and subject to the terms of the Lease Agreement, of the terms and conditions of each Concession Sublease (including requirements therein re Gross Receipts (as defined therein), reporting, cash registers, alcoholic beverages, street pricing policies and prompt payment of salaries). For the avoidance of doubt, Services provided by Contractor shall not include the Port Authority Reserved Uses or the Operator Reserved Uses.
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EXHIBIT B– [RESERVED]
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EXHIBIT C– PREMISES
This exhibit reflects the Premises to be provided from the Operator to the Contractor as referred to in Article 1.1 (“Definitions”). As a general rule, these Premises are based on a certain level of design evolution with the intent of (i) ensure there is a minimum commercial space provision for the Contractor, (ii) ensure the commercial strategy of the Contractor can be correctly deployed in terms of location and quality of space, and (iii) the general geometrical characteristics required for the subleased commercial units are appropriate for their commercial performance. Notwithstanding the previous rule, the commercial units within these Premises could be subject to minor geometrical modification, provided that design will evolve up to a final detailed design.
The Operator will ensure a minimum total commercial space provision within the Premises, as reflected in the table below:
[**]
Leasable Area of the Premises shall mean the aggregate number of square feet of interior floor space of all floor levels therein which shall be measured from the herewith attached drawings: (i) between the centerlines of the concession unit’s partitions and column grids, and (ii) to the inside face of exterior walls and service area partitions adjacent to the unit’s space as reflected in the drawings.
Any deductions or exclusions from leasable area measured from the drawings herewith attached could only be made by reason of large columns, ducts, stairs, elevators, escalators, shafts or other interior construction or equipment. For the avoidance of doubts, this is the methodology that has been followed to obtain the Leasable Area from the herewith attached drawings. Additional deductions or exclusions could only derive from the evolution towards the detailed design.
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Phase A - Level 01:
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Phase A - Level 02:
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Phase A - Level 03:
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The Red Boundary areas that are reflected in the drawings hereto attached have the meaning that is stated on Article 3.1(8) of this contract.
On the basis of these drawings, the table below shows the total amount of space that could be obtained for each area airside/landside of the New Terminal One for Phase A:
[**]
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EXHIBIT D –Proposed Plan For Phases B1/B2
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EXHIBIT E – [RESERVED]
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EXHIBIT F – RESPONSIBLE CONTRACTOR POLICY
JFK NTO LLC (“NTO”) has adopted the responsible contractor policy set forth below (the “Policy”) in connection with an Agreement of Lease between the Port Authority of New York and New Jersey and NTO, pursuant to which Terminal Three and certain other areas and facilities at the Airport, Terminal Two and the existing Terminal One at the John F. Kennedy International Airport (the “Airport”) in the Borough of Queens in the State of New York will be demolished and replaced and NTO will lease, design, construct, finance, maintain and operate the New Terminal One at the Airport (“New Terminal One”, and all such activities, the “Project”). URW Airports JFK T1, LLC (the “Contractor”) shall comply, and cause each of its contractors, subcontractors and Concessions Sublessees to comply, with the Policy as follows:
1. |
All construction in the construction phase of the Project shall be performed: |
a. |
by contractors or operators appointed pursuant to the JFK Terminal One Redevelopment Project Labor Agreement dated as of December 19, 2019 in respect of the Project (as amended from time to time, the “Project Labor Agreement”), including any contractor or operator appointed by the Contractor that has executed a letter of assent in the form attached as Schedule 1 to the Project Labor Agreement; |
b. |
under a project labor agreement negotiated and approved by the Building and Construction Trades Council of Greater New York and Vicinity; or |
c. |
by contractors or operators: |
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who are parties to a collective bargaining agreement with a labor organization whose jurisdiction covers the type of work to be performed; |
ii. |
each of whom is an “Approved Building Trades Department Contractor or Subcontractor”; and |
iii. |
whose collective bargaining agreement or other applicable documentation provides a mechanism for the expeditious resolution of jurisdictional disputes; |
“Approved Building Trades Department Contractor or Subcontractor” means a contractor or subcontractor who is signatory to a labor organization that is either currently affiliated with, or previously affiliated with as of January 1, 2001, the Building and Construction Trades Department of the AFL-CIO.
2. |
All construction being performed that is not related to the construction phase of the Project shall be performed: |
a. |
under a project labor agreement negotiated and approved by the Building and Construction Trades Council of Greater New York and Vicinity; or |
b. |
in the absence of such project labor agreement, by contractors or subcontractors: |
i. |
who are parties to a collective bargaining agreement with a labor organization whose jurisdiction covers the type of work to be performed; |
ii. |
who is an “Approved Building Trades Department Contractor or Subcontractor”; and |
iii. |
whose collective bargaining agreement or other applicable documentation provides a mechanism for the expeditious resolution of jurisdictional disputes; |
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provided, that the foregoing obligations shall not apply:
A. |
in relation to any emergency work that has to be started within 30 days; or |
B. |
if the number of commercially competitive bids received within 30 days of distribution of invitation to bid for such work is less than two (2). |
3. |
To the extent the Contractor and/or any Concession Sublessee subcontracts any portion of the operation and maintenance work at the Project to a third party, such contractors and subcontractors: |
a. |
shall be parties to a collective bargaining agreement with a labor organization whose jurisdiction covers the type of work to be performed; |
b. |
shall each be an “Approved Building Trades Department Contractor or Subcontractor”; and |
c. |
respective collective bargaining agreement or other applicable documentation shall provide a mechanism for the expeditious resolution of jurisdictional disputes; |
provided, that the foregoing obligations shall not apply:
a. |
if an applicable project labor agreement is in place; |
b. |
in relation to any emergency work that has to be started within 30 days; or |
c. |
if the number of commercially competitive bids received within 30 days of distribution of invitation to bid for such work is less than two (2). |
4. |
Throughout the Project, the Contractor and its subsidiaries, shall cause any operator, contractor or subcontractor engaged in any work at the Project to: |
a. |
recognize the right of such employees to be represented by a union as a collective bargaining representative; provided, that a majority of employees vote in favor of unionization; |
b. |
cooperate with such collective bargaining representative; |
c. |
not oppose employee’s efforts to organize or negotiate a collective bargaining agreement; |
d. |
maintain a position of neutrality amongst union organizations; and |
e. |
negotiate a collective bargaining agreement in a reasonably timely matter once such union is recognized. |
5. |
The Contractor and its subsidiaries shall use commercially reasonable efforts to cure any claimed violation of the Policy within a reasonable period of time upon receipt of notice from NTO. Without limiting any contractor or subcontractor’s obligations and covenants under any agreement, the Contractor shall, and shall cause all contractors and subcontractors to, use commercially reasonable efforts to cure any claimed violation of the Policy within a reasonable period of time upon receipt of notice from NTO. The parties shall cooperate in good faith to ensure compliance with this Policy. |
6. |
The Contractor agrees to provide to NTO: |
a. |
monthly man-hour totals for each major trade performing construction related to the construction phase of the Project; and |
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b. |
a written detailed notice certifying to compliance with this Policy in the form provided by NTO, given no more than quarterly. |
The Contractor shall cause each of its contractors and subcontractors to provide to the Contractor, for the Contractor to provide to NTO:
a. |
monthly man-hour totals for each major trade performing construction related to the construction phase of the Project, to the extent applicable; and |
(ii)a written detailed notice certifying to compliance with this Policy in the form provided by NTO, given no more than quarterly.
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EXHIBIT G – FORM OF CONTRACTOR CERTIFICATION
In connection with that certain Master Concession and Developer Agreement (the “MCDA”) proposed to be entered into between JFK NTO, LLC, a Delaware limited liability company, and URW Airports JFK T1, LLC (the “Contractor”), the Contractor hereby certifies (this “Certification”) the following:
(a)Neither the Contractor nor any officer, director, other senior executive, lobbyist or other agent thereof has made any offers or agreements, or given or agreed to give anything of value or taken any other action with respect to any Port Authority Commissioner, officer or employee, or any public official, public appointee or public employee, political candidate, party or party official, or any person formerly in any such position, or immediate family member thereof, in each case in connection with obtaining the MCDA and which would constitute a breach of the code of ethics established by the Port Authority applicable to lessees and/or sublessees, contractors, furnishers of services or other Persons at the Airport (available at https://www.panynj.gov/corporate/en/government-ethics.html), nor does the Sublessee have any knowledge of any act on the part of any of the aforementioned persons which would constitute a breach of said ethical standards.
(b)The Contractor has not offered, promised or given, demanded or accepted, any improper inducement, directly or indirectly, to or from a Port Authority Commissioner, officer or employee, or any public official, public appointee or public employee, political candidate, party or party official, in connection with obtaining the MCDA.
(c)The MCDA (including all related exhibits, schedules and attachments thereto and all agreements and documents expressly referenced therein and executed in connection with the transactions expressly contemplated thereby) contain all of the promises, agreements, conditions, inducements and understandings of the Contractor relating to the subject matter therein, and there are no promises, agreements, conditions, understandings or inducements, oral or written, express or implied, by or for the benefit of the Contractor relating to such subject matter other than as expressly set forth therein or as may be expressly contained in any enforceable written agreements or instruments executed by and enforceable against the Contractor in connection with the transactions expressly contemplated by the MCDA. In connection with the MCDA, the Contractor has not relied on any statement, promise, solicitation, representation, warranty or agreement of any other party or of any other person on such other party’s behalf or otherwise, whether written or oral, express or implied, relating to the subject matter in the MCDA, and the Contractor is not aware to the best of its knowledge of any such statement, promise, solicitation, representation, warranty or agreement except those expressly contained in the MCDA.
This Certification shall be deemed to have been made by the Contractor as follows: if the Contractor is a corporation, this Certification shall be deemed to have been made not only with respect to the Contractor itself, but also with respect to each parent, affiliate, director and officer of the Contractor, as well as, to the best of the certifier’s knowledge and belief, each stockholder of the Contractor with an ownership interest in excess of 10%; if the Contractor is a partnership, this Certification shall be deemed to have been made not only with respect to the Contractor itself, but also with respect to each partner. Moreover, this Certification, if made by a corporation, shall be deemed to have been authorized by the Board of Directors of the corporation.
This Certification shall be deemed to have been made by the Contractor with full knowledge that it will become a part of the records of the Port Authority and that the Port Authority will rely on its truth and accuracy.
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In the event that the Port Authority should determine at any time prior or subsequent to the execution of the MCDA that the Contractor has falsely certified as to any material item in this Certification, or has not fully and accurately represented any circumstance with respect to any item in the foregoing certification required to be disclosed, the Port Authority may, in addition to any rights or remedies available to it at law or in equity, exercise any rights or remedies provided in the Lease Agreement, including, without limitation, Section 20(b)(3)(vi) of the Lease Agreement.
The Contractor is advised that knowingly providing a false certification or statement pursuant hereto may be the basis for prosecution for offering a false instrument for filing (see e.g., New York Penal Law, Section 175.30 et seq.).
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The Contractor has caused its duly authorized representative to sign, in his/her capacity as an agent of the Contractor and not in his/her individual capacity, this Certification as of the date written below.
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EXHIBIT H
[**]
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EXHIBIT I – REQUIRED DELIVERY CONDITION
The Operator shall deliver all units within the Premises set forth in Exhibit C as “White Box” spaces. These spaces will be delivered in a reasonably unencumbered condition at least 180 days (subject to coordination with Port Authority TCAP/TCRM process) prior to scheduled public opening of the respective public areas of the Terminal. This “White Box” general conditions are listed below:
| ● | Steel stud (light gauge), structural stud, or masonry framed walls with taped sheetrock to structure above and to include fire rating requirements at enclosing walls only where applicable. |
| ● | Fire proofing on structural elements, including floor, beam, and column systems to meet NYC Building Code requirements. |
| ● | No ceiling, wall, or floor finish will be provided. It is the responsibility of the Contractor to ensure that all commercial spaces within the Premises are provided with the finished floors that meet the requirement of the ADA slopes. |
| ● | Fire Alarm devices per code. |
| ● | Egress stairs only, no ornamental features to meet NYC Building Code |
| ● | Plumbing stub ups |
| ● | Mechanical, Electrical and Low voltage systems to support the space are to be brought up to the space and stubbed into a common demarcation zone described on the Design Drawings. |
| ● | All code minimum utilities including lighting (footcandle requirements) and upright sprinklers. |
| ● | All utilities to be stubbed to (above, below and/or adjacent as appropriate) to the “Utility Zone” determined by the Operator. |
The “White Box” specific conditions are described below:
| ● | Exterior Walls (Non-Glazing): The interior side of exterior walls will be finished by the Operator as required to meet code requirements” AFF. The exterior walls shall extend from the floor to the metal deck above and shall be of similar nature to similar framed metal stud walls of non-concession space and include insulation and/or other required materials other than the sheetrock. The exterior of the wall shall be finished by the Operator. |
| ● | Exterior Walls (Glazing): The interior of the glazing wall shall be finished by the Operator and provided in a similar condition to exterior glazing walls provided in other common areas in the building. |
| ● | Demising - Concessions Premise to Concessions Premise: Operator shall furnish and install framed metal stud defining the area of each of the concessions’ units which shall extend from the floor to the metal deck above. Both sides of the demising wall shall remain open below 10’-0” AFF and receive finished drywall above 10’-0” AFF. Unless abutting a non-tenant space in which case drywall should be installed on the non-tenant side in accordance with the required life safety |
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codes. Sheetrock will be installed by Operator in a condition where it can be easily removed if/as needed.
| ● | Soffit Above Concessions Located Below Level 3 (or similar condition): Operator shall ensure a continuous structural soffit along the public circulation corridors to predetermined height consistent with storefront criteria. (i.e., 12’-0” AFF). The soffit shall be of structural nature to support store closure system and reasonable storefront finishes such as glass, wood, and/or metal panels which will be provided by the Contractor or by its sublessees. |
| ● | Structural “Box” and “Lid” Conditions: Operator shall ensure a structural “box” and “lid” for commercial spaces that reside in the larger volume of the building unless noted as a kiosk, “Pop-up” or other similar condition. Structure shall be made up of a structural steel frame with metal deck “lid” capable of supporting storefront and various MEP and other supporting components such as lighting, etc. |
| ● | Storefront & Security Closure: This is to be installed in its entirety by the Contractor or by its sublessees, supported from base building structure. |
| ● | HVAC: The Operator shall furnish and install ductwork, piping and any other components required of the base building system to a point at the commercial spaces. The Contractor or its sublessees, at their own cost and expenses, shall extend said HVAC lines and equipment within their Premises to complete install. The Operator shall provide roof curbs or platforms to receive all roof mounted equipment to be provided by the Contractor or its sublessees. |
| ● | Electrical: The Operator shall furnish and install regular (non- emergency) electrical services to a meter bank or equivalent within 100 feet of premises. The Operator shall provide metering and any required current transformer (“CT”) cabinets for each individual commercial space adjacent to the respective panels. Operator shall furnish and install the distribution panel in the main electrical room with the breakers for each individual service as well as the conduit and conductors between the distribution panel in the electrical room and the meter banks / CT cabinets. |
| ● | The Contractor or its sublessees shall provide all labor, materials, supplies and miscellaneous appurtenances necessary to extend the electrical system from the meter socket to each individual commercial space (not to exceed 100 feet) within the Operator’s provided conduit. Operator or its lessees shall extend said electric service to their lease premise to complete install. |
| ● | The Operator shall provide a connection point to the base building emergency power system to be located within a reasonable distance from the commercial units within the Premises. |
| ● | All temporary construction lighting for the Project to be provided by the Operator |
| ● | Electrical Submetering: The Contractor or its sublessees shall furnish and install a digital (remote read and automatic billing feature) electrical submetering system for direct cost electrical service. |
| ● | Communications / Telecom: The Operator shall furnish and install one (1) two-inch (2”) communications conduit per available communications service provider with pull strings from the nearest base building Telecom room to plywood backboards mounted adjacent to the nearest meter bank room where the respective sublessee’s electrical service is provided. The Operator is responsible for bringing communications connection(s) to said meter bank room. |
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| ● | The Contractor shall be responsible for furnishing all labor, materials supplies and miscellaneous appurtenances necessary to install telecom and data to the sublessee’s commercial spaces with the Operator’s provided conduit. |
| ● | Fire Sprinkler System: The sprinkler systems shall be zoned per floor by the Operator and the design areas not to exceed 52,000 SF for Ordinary hazard and 40,000 SF for Extra Hazard (unless otherwise noted), with control valves and water flow switches provided for each zone. The zoning concept is determined by the maximum protection area per occupancy classification as per NFPA 13/2007. Also, the zoning shall follow architectural elements, particularly smoke control boundaries. The Operator will furnish and install a main line plus code minimum branching with upright heads, all further requirements are tenant responsibility. The supply main to each tenant space shall be provided with an electrically supervised water control valve. This is provided to reduce the impact to the terminal building sprinkler systems during the renovation of tenant spaces. Back-of-house and secure airline operations sprinkler systems zones shall be separate zones than the sprinkler systems protecting public areas. All sprinkler zones shall be coordinated with fire alarm notification, detection, smoke control, and mechanical. |
| ● | The Contractor or its sublessees shall furnish and install a sprinkler system with 100% coverage of the Premises with connection to the Fire Command Center. The Contractor or its sublessees shall be responsible for the costs of the design, permitting and installation of a sprinkler system to provide 100% coverage of the commercial spaces. System shall include the area below the ceiling and any devices and equipment requiring sprinkler coverage installed by the Contractor or its sublessees above the ceiling. |
| ● | Fire Alarm System: The Operator will provide fire alarm systems that meet all applicable code minimums. All panel and further upgrades are Contractor’s or its sublessees’ responsibility. The Operator shall furnish and install fire alarm devices consisting of an audio / visual alarm, pull station and smoke detector in each of the commercial spaces within the Premises and will test the same. Connection point(s) to the Fire Command Center will be provided by Operator within a reasonable distance from the Sublessee’s Premises. The Fire Command Center will monitor all fire alarm signals for the building sprinkler and fire alarm signals generated by Tenant devices, including duct detectors, and if required, manual fire alarm stations, and kitchen exhaust hood systems. The Operator shall furnish and install the Sublessees’ Terminal Cabinet for each individual concession unit and tie into the Fire Command Center. |
The “White Box” specific conditions for Food and Beverage units and “Wet Retail” concessions units are described below:
| ● | Slab Condition: To allow for proper slope to floor drains, the Operator shall provide for a 1” offset (“sunken slab”) from base building floor finish and Sublessee’s unfinished floor/slab for any unit requiring a floor drain such as F&B units. The Operator will provide a termination strip for the adjacent 1” height differential in flooring material. It is the responsibility of the Contractor or its sublessees to ensure that the final finished floor meets the requirements of ADA slope. |
| ● | Plumbing: Per the sample NTO Concessions Utility Requirements matrix, DB shall furnish and install water, sanitary sewer, and grease waste lines (heat traced and insulated as required) stubbed to each individual concession unit. Tenant shall continue any required heat tracing and insulation and extension of said water line from the lease line stubbed location to within their lease premise to complete install per the Tenant’s permit approved final construction plans. |
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| ● | Water Submetering: Contractor or its sublessees shall provide a digital (remote read) water sub-metering system of said plumbing services. |
| ● | Grease Waste Plumbing: The Operator shall provide the primary grease waste filtration system to be located outside the commercial spaces within the Premises, piped to location below individual concession units that require it. Contractor or its sublessees shall provide secondary grease waste unit(s) (i.e., little dipper unit) if/as may be required per code. |
| ● | Grease Exhaust: The Operator shall provide right-of-way for grease exhaust ducting to the roof and shall furnish and install all ductwork, piping, and any other components to provide a grease exhaust routed to the exterior of the building in coordination with the sublesees’ work. Contractor or its sublessees shall provide grease exhaust hood equipment, ansul system and equipment to be located outside of the building. Operator shall provide roof curbs or platforms to receive all sublessees roof mounted equipment as well as provide power conduit from commercial space in close proximity to said roof curb/platform for the grease exhaust connection. |
| ● | Dishwasher Exhaust: At F&B locations identified to receive a dishwasher, the Operator shall provide a commercially sized welded stainless steel dishwasher exhaust duct to a connection point within the commercial unit. |
| ● | Natural Gas: The Operator shall furnish and install natural gas piping to the individual concession unit that require it. The Operator shall provide flue to code compliant outside location. The Contractor or its sublessees shall provide a digital (remote read) gas sub-metering system of said gas services. |
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EXHIBIT J – [RESERVED]
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Concept |
Unit |
Input/Calculation |
Notes |
Period start |
Date |
01/01/2031 |
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Period end |
Date |
31/01/2031 |
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Inputs |
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Post Phase A commencement date |
Date |
01/05/2026 |
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Post Phase B1 Commencement date |
Date |
01/04/2028 |
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Post Phase B2 Commencement date |
Date |
01/10/2029 |
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Applicable Phase |
A/B1/B2 |
B2 |
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CPI Index 1 (Period end vs. base 2019) |
index |
1,31 |
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CPI Index 2 (Period end vs. 1st Jan 2026) |
index |
1,18 |
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Live hardstands Contribution |
% |
5,9% |
=Hardstand Enplanements/Actual Enplaned passengers |
Hardstand MAG Discount rate |
% |
25% |
Assumes all hardstand traffic boarding time < 75min |
Applicable Hardstand factor |
% |
98,5% |
= 1-[Hardstand MAG Discount rate*Live hardstands contribution] |
RPE |
USD/Epax nominal |
24,95 |
=Operator Gross Rents /Actual Enplaned Passengers |
RPE |
USD/Epax, 2019p |
19,00 |
= RPE Nominal / CPI Index 1 |
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EXHIBIT M – FORM OF PARENT COMPANY PAYMENT GUARANTY
FORM OF PAYMENT GUARANTY AGREEMENT BY AND BETWEEN JFK NTO LLC AND
[GUARANTOR] COVERING THE MASTER CONCESSION DEVELOPER AGREEMENT AT
JOHN F. KENNEDY INTERNATIONAL AIRPORT – TERMINAL ONE
This GUARANTY AGREEMENT (this “Guaranty”) is made and entered into as of [ ], 2022 by and between JFK NTO LLC, a Delaware limited liability company (“NTO”), and [ ], a [ ]
(“Guarantor”).
The parties hereto, for and in consideration of the covenants and conditions hereinafter contained to be kept and performed, DO HEREBY AGREE AS FOLLOWS:
1.Guarantor unconditionally guaranties to NTO (i) payment of all payment and other monetary obligations of [URW Airports JFK T1, LLC, a Delaware limited liability company] (“Contractor”), under the Master Concession Developer Agreement, dated as of [ ], 2022, by and between NTO and Contractor (the “MCDA”), including but not limited to the prompt payment when due of the Concessions MAG (as defined in the MCDA) and all other amounts due and payable by Contractor to NTO under the MCDA, including all payment obligations arising under indemnities provided by Contractor under the MCDA and (ii) all fees, costs and expenses incurred by NTO in connection with enforcing its rights under this Guaranty and the MCDA Agreement (including without limitation all legal fees, costs, and expenses). Guarantor unconditionally covenants to NTO that if (a) a Contractor Event of Default (as defined in the MCDA) shall have occurred in respect of any payment or other monetary obligation of Contractor under the MCDA, and (b) notice of any such Contractor Event of Default shall have been given by NTO to Contractor and Contractor shall not have cured such default after the expiration of applicable notice and grace periods, if any, provided for in the MCDA (except that the foregoing clause (b) shall be inapplicable if Contractor shall be bankrupt or insolvent), then Guarantor shall pay (or cause to be paid) the Concessions MAG and all other amounts due and payable by Contractor to NTO under the MCDA, provided that, the foregoing notwithstanding, with respect to any payment due by the Contractor to NTO, if such amount is not paid when due, without giving effect to any grace or cure periods provided for under the MCDA and regardless of whether a Contractor Event of Default has occurred in respect thereof, Guarantor shall pay such unpaid amount within fifteen (15) days of the date on which the Guarantor actually receives NTO’s notice specifying the failure by the Operator to make such payment. This Guaranty is a guaranty of payment, not collection.
2.The liability and obligations of Guarantor hereunder shall not be impaired, abated, deferred, diminished, modified, released, terminated or discharged, in whole or in part, or otherwise affected, by any event, condition, occurrence, circumstance, proceeding, action or failure to act, with or without notice to, or the knowledge or consent of, Guarantor, including, without limitation:
(a)any amendment, modification or extension of the MCDA or any covenant, including any change in scope of the MCDA;
(b)any extension of time for performance, whether in whole or in part, of any covenant given prior to or after default under the MCDA;
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(c)any exchange, surrender or release, in whole or in part, of any security which may be held by NTO at any time for or under the MCDA;
(d)any waiver of or assertion or enforcement or failure or refusal to assert, collect or enforce, in whole or in part, any covenant, claim, cause of action, right or remedy which NTO may, at any time, have under the MCDA or with respect to any guaranty or any security which may be held by NTO at any time for or under the MCDA or with respect to Contractor;
(a)any lack of genuineness, validity, legality or enforceability, or the voidability of, all or any portion of the MCDA due to lack of authority or failure to duly execute;
(b)any act or thing or omission or delay to do any act or thing which (i) may in any manner or to any extent vary the risk of Guarantor or (ii) would otherwise operate as a discharge of Guarantor as a matter of law;
(c)any prepayments or partial payments under the MCDA and any payment in full satisfaction of less than all of the amounts due under the MCDA;
(d)the substitution or release of any other person from liability for the performance or observance of any covenant, whether by operation of law or otherwise;
(e)NTO’s consent to any assignment or subletting or the assignment or successive assignments of the MCDA by Contractor, or any subletting of the premises demised under the MCDA by Contractor;
(f)the failure to give Guarantor any notice whatsoever, other than any notice that NTO is required to give pursuant to this Guaranty;
(g)any right, power or privilege that NTO may now or hereafter have against Contractor or any collateral;
(h)any change to the corporate existence, structure, or ownership of Contractor or Guarantor;
(i)any assignment, conveyance, mortgage, merger or other transfer, voluntary or involuntary (whether by operation of law or otherwise), of all or any part of Contractor’s interest in the MCDA;
(j)any assignment, conveyance, mortgage, merger or other transfer, voluntary or involuntary (whether by operation of law or otherwise) of all or part of the interest or rights of NTO under the MCDA;
(k)any default by NTO or the Guarantor under this Guaranty; or
(l)the bankruptcy or insolvency of Contractor.
3.To charge Guarantor under this Guaranty no demand shall be required, Guarantor hereby expressly waiving any such demand. NTO shall have the right to enforce this Guaranty without pursuing any right or remedy of NTO against Contractor or any other party, or any security NTO may hold. NTO may commence any action or proceeding based upon this Guaranty directly against Guarantor without making Contractor or anyone else a party defendant in such action or proceeding.
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Any one or more successive and/or concurrent actions may be brought hereon against Guarantor either in the same action, if any, brought against Contractor and/or any other party or in separate actions, as often as NTO, in its sole discretion, may deem advisable.
4.This Guaranty shall be binding upon Guarantor and its heirs, successors and assigns, and shall inure to the benefit of and may be enforced by the successors and assigns of NTO or by any party to whom NTO’s interest in the MCDA or any part thereof, including the rents, may be assigned whether by way of mortgage or otherwise. Wherever in this Guaranty reference is made to either NTO or Contractor, the same shall be deemed to refer also to the then successor or assign of NTO or Contractor.
5.Except to the extent this Section 5 is inconsistent with Section 13 herein, Guarantor hereby expressly waives and releases (a) notice of the acceptance of this Guaranty and notice of any change in Contractor’s financial condition; (b) the right to interpose any substantive or procedural defense of the law of guaranty, indemnification or suretyship, except the defenses of prior payment (whether before, during or after any applicable notice and grace periods) by Contractor (of the obligations which Guarantor is called upon to pay under this Guaranty); (c) all rights and remedies accorded by applicable law to guarantors or sureties, including, without limitation, any extension of time conferred by any law now or hereafter in effect; (d) the right to interpose any defense (except as allowed under (b) above), set off or counterclaim of any nature or description in any action or proceeding; and (e) any right or claim of right to cause a marshalling of Contractor’s assets or to cause NTO to proceed against Contractor and/or any collateral held by NTO at any time or in any particular order; provided that Guarantor does not waive or release any defenses set forth in Section 13.
6.Without limiting Guarantor’s obligations elsewhere under this Guaranty, if Contractor, or Contractor’s trustee, receiver or other officer with similar powers with respect to Contractor, rejects, disaffirms or otherwise terminates the MCDA pursuant to any bankruptcy, insolvency, reorganization, moratorium or any other law affecting creditors’ rights generally, Guarantor shall automatically be deemed to have assumed, from and after the date such rejection, disaffirmance or other termination of the MCDA is deemed effective, all payment and other monetary obligations of Contractor under the MCDA to the same extent as if Guarantor had been originally named instead of Contractor as a party to the MCDA and the MCDA had never been so rejected, disaffirmed or otherwise terminated and shall be entitled to all benefits of Contractor under the MCDA. Guarantor, upon such assumption, shall be obligated to pay such payment or other monetary obligation, and Guarantor shall be subject to any rights or remedies of NTO which may have theretofore accrued or which may thereafter accrue against Contractor on account of any payment default under the MCDA, notwithstanding that such defaults existed prior to the date Guarantor was deemed to have automatically assumed the Contractor’s payment or other monetary obligation under the MCDA or that such rights or remedies are unenforceable against Contractor by reason of such rejection, disaffirmance or other termination. Guarantor shall confirm such assumption at the request of NTO upon or after such rejection, disaffirmance or other termination, but the failure to do so shall not affect such assumption. Guarantor, upon the assumption of Contractor’s payment or other monetary obligation under the MCDA, shall have all of the rights of Contractor under the MCDA with respect thereto (to the extent permitted by law). Neither Guarantor’s obligation including but not limited to payment in accordance with this Guaranty nor any remedy for the enforcement thereof shall be impaired, modified, changed, stayed, released or limited in any manner by any impairment, modification, change, release, limitation or stay of the liability of Contractor or its estate in bankruptcy or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of the Bankruptcy Code of the United States or other statute or from the decision of any court interpreting any of the same, and Guarantor shall be obligated under this Guaranty as if no such impairment, stay, modification, change, release or limitation had occurred.
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7.This Guaranty and all rights, obligations and liabilities arising hereunder shall be construed according to the substantive laws of New York without reference to choice of law principles. Any legal action, suit or proceeding against Guarantor with respect to this Guaranty shall be brought in New York, New York.
8.Guarantor hereby waives any and all rights of subrogation (if any) which it may have against Contractor as a result of actions taken or amounts paid in connection with or relating to this Guaranty or to the MCDA. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when this Guaranty is in effect and all of the obligations hereunder shall not have been paid in full, such amount shall be held by Guarantor in trust for NTO and turned over to NTO in the exact form received by Guarantor, to be applied against the guaranteed obligations in accordance with the MCDA.
9.Guarantor represents and warrants to NTO that as of the date hereof:
(a)Guarantor is a [corporation] duly incorporated and validly existing under the laws of [☐].
(b)This Guaranty constitutes the legal, valid and binding obligation of Guarantor, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, and other laws affecting creditors’ rights generally, to moratorium laws from time to time in effect and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(c)No action, suit or proceeding is pending or, to the best of Guarantor’s knowledge, threatened against Guarantor that would materially affect Guarantor’s ability to fully perform its obligations under this Guaranty.
10.If NTO shall be obligated by reason of any bankruptcy, insolvency or other legal proceeding to pay or repay to Contractor or to Guarantor or to any trustee, receiver or other representative of either of them, any amounts previously paid by Contractor or Guarantor pursuant to the MCDA or this Guaranty, Guarantor shall reimburse NTO for any such payment or repayment and this Guaranty shall extend to the extent of such payment or repayment made by NTO, except to the extent, if any, that such payment or repayment is prohibited by law or that such payment or repayment constitutes merely a reimbursement of any overpayment. NTO shall not be required to litigate or otherwise dispute its obligation or make such payment or repayment if in good faith and on written advice of counsel reasonably acceptable to Guarantor NTO believes that such obligation exists.
11.The obligations of Guarantor under this Guaranty are independent of Contractor’s obligations under the MCDA, and a separate action or actions may be brought and prosecuted against Guarantor to enforce this Guaranty, irrespective of whether any action is brought against Contractor or whether Contractor is joined in any such action or actions. Any one or more successive and/or concurrent actions may be brought against Guarantor either in the same action, if any, brought against Contractor or in separate actions, as often as NTO, in its sole discretion, may deem advisable.
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12.All remedies afforded to NTO by reason of this Guaranty or the MCDA, or otherwise available at law or in equity, are separate and cumulative remedies, and it is stipulated that no one remedy, whether or not exercised by NTO, shall be deemed to be in exclusion of any other remedy available to NTO and shall not limit or prejudice any other legal or equitable remedy which NTO may have.
13.All defenses afforded to Contractor or Guarantor by reason of this Guaranty or the MCDA, or otherwise available to Contractor or Guarantor at law or in equity shall, unless waived under this Guaranty (including under Section 2), be available to Guarantor to the extent Contractor is or would have been entitled to the same defenses under the MCDA or at law or in equity.
14.If any term, covenant, condition or provision of this Guaranty or the application thereof to any circumstance or to Guarantor shall be invalid or unenforceable to any extent, the remaining terms, covenants, conditions and provisions of this Guaranty or the application thereof to any circumstances, or to Guarantor other than those as to which any term, covenant, condition or provision is held invalid or unenforceable, shall not be affected thereby and each remaining term, covenant, condition and provision of this Guaranty shall be valid and shall be enforceable to the fullest extent permitted by law.
15.All notices or documents authorized or required to be given pursuant hereto will be in writing, and will be delivered by the U.S. Postal Service hand or courier delivery or transmitted by electronic mail or other electronic means in accordance with the following:
To NTO:
JFK NTO, LLC
Gerrard P. Bushell
Chairman and CEO
30 Broad Street, 25th Floor
New York, NY 10004
Email: gbushell@onejfk.com
with a copy to:
JFK NTO LLC
30 Broad Street, 25th Floor
New York, NY 10004
Attention: Legal Department
Email: legal@onejfk.com
or to such other address as these parties may designate by written notice to Guarantor.
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Written notices to Guarantor hereunder shall be sent and addressed to:
To Guarantor:
[Guarantor]
E-mail:
Attention:
with a copy to:
[__________]
Notices will be deemed received when actually received in the office of the addressee (or by the addressee if personally delivered) or, when delivery is refused, as shown on the receipt of the U.S. Postal Service, private carrier or other Person making the delivery. If mailed, notices will be deemed effective and served as of the date of the return of verification of delivery of certified or registered mailing of the notice, or one (1) day after deposit with a recognized express overnight mail or courier service. If delivered via electronic mail, notices will be deemed effective and served as of the date of the return of electronic receipt confirmation.
Either Party may change its address for notice by notifying the other Party with a notice in accordance with this Section 16.
16.No amendment or waiver of any provision of this Guaranty nor consent to any departure by Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by NTO and Guarantor, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
17.This Guaranty shall be entered into in consideration of the execution of the MCDA.
18.This Guaranty shall continue in full force and effect and Guarantor’s obligations and liability hereunder shall continue notwithstanding the termination or earlier expiration of the MCDA until the date that the payment and any other monetary obligation of Contractor thereunder and guaranteed hereby have been fully paid, provided that this Guaranty shall be reduced and/or terminated in accordance with, and to the extent provided for in, Section 24.7 of the MCDA regardless of whether the obligations of Contractor thereunder and guaranteed hereby have been fully paid. This Guaranty shall inure to the benefit of and be enforceable by NTO and its successors as well as any mortgagee with interest in the Project.
19.This Guaranty may be executed in one or more counterparts, each of which will be deemed an original, and such counterparts will together constitute one and the same contract.
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20.This Guaranty may be executed by the Parties and delivered by any electronic means and if so executed and delivered this Guaranty will be for all purposes as effective as if the Parties had executed and delivered an executed original of this Guaranty.
21.EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT THAT IT MAY HAVE TO A JURY TRIAL WITH RESPECT TO ANY CLAIM, CAUSE OF ACTION OR OTHER PROCEEDING IN CONNECTION WITH THIS GUARANTY OR ANY TRANSACTION CONTEMPLATED BY THIS GUARANTY.
22.This Guaranty and any claim, dispute or controversy arising out of, under or related to this Guaranty, the relationship of the Parties under this Guaranty, or the interpretation and enforcement of the rights and obligation of the Parties under this Guaranty will be governed by, and interpreted and enforced in accordance with, the laws of the State of New York, without regard to conflicts of laws principles.
23.Each Party agrees to submit, to the fullest extent permitted by Applicable Law, to the jurisdiction of any New York State court, the U.S. District Court for the Southern District of New York, in each case, sitting in the City and County of New York and any subsequent appellate court, for the settlement of any claim or dispute arising out of, under or related to this Guaranty or any transaction contemplated by this Guaranty. Each Party also waives, to the fullest extent permitted by Applicable Law, any objection that it may have now or in the future to the laying of venue in such courts on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with this Guaranty or any transaction contemplated by this Guaranty.
[signature page follows]
IN WITNESS WHEREOF, the Parties hereto have executed this Guaranty as of the day and year first above written.
JFK NTO LLC
By:
Name:
Title:
[GUARANTOR] |
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139
EXHIBIT N – FORM OF PARENT COMPANY PERFORMANCE GUARANTY
FORM OF PERFORMANCE GUARANTY AGREEMENT BY AND BETWEEN JFK NTO LLC
AND [GUARANTOR] COVERING THE MASTER CONCESSION DEVELOPER AGREEMENT
AT JOHN F. KENNEDY INTERNATIONAL AIRPORT – TERMINAL ONE
This GUARANTY AGREEMENT (this “Guaranty”) is made and entered into as of [ ], 2022 by and between JFK NTO LLC, a Delaware limited liability company (“NTO”), and [ ], a [ ]
(“Guarantor”).
The parties hereto, for and in consideration of the covenants and conditions hereinafter contained to be kept and performed, DO HEREBY AGREE AS FOLLOWS:
1.Guarantor unconditionally guaranties to NTO performance of all obligations other than payment and indemnification obligations of URW Airports JFK T1, LLC, a Delaware limited liability company (“Contractor”), under the Master Concession Developer Agreement, dated as of [ ], 2022, by and between NTO and Contractor (the “MCDA”) (the “Performance Obligations”. Guarantor unconditionally covenants to NTO that if (a) a Contractor Event of Default (as defined in the MCDA) shall have occurred in respect of any Performance Obligation of Contractor under the MCDA, and (b) notice of any such Contractor Event of Default shall have been given by NTO to Contractor and Contractor shall not have cured such default after the expiration of applicable notice and grace periods, if any, provided for in the MCDA (except that the foregoing clause (b) shall be inapplicable if Contractor shall be bankrupt or insolvent), then Guarantor shall well and truly perform (or cause to be performed) the Performance Obligations.
2.The liability and obligations of Guarantor hereunder shall not be impaired, abated, deferred, diminished, modified, released, terminated or discharged, in whole or in part, or otherwise affected, by any event, condition, occurrence, circumstance, proceeding, action or failure to act, with or without notice to, or the knowledge or consent of, Guarantor, including, without limitation:
(a)any amendment, modification or extension of the MCDA or any covenant, including any change in scope of the MCDA;
(b)any extension of time for performance, whether in whole or in part, of any covenant given prior to or after default under the MCDA;
(c)any exchange, surrender or release, in whole or in part, of any security which may be held by NTO at any time for or under the MCDA;
(d)any waiver of or assertion or enforcement or failure or refusal to assert, collect or enforce, in whole or in part, any covenant, claim, cause of action, right or remedy which NTO may, at any time, have under the MCDA or with respect to any guaranty or any security which may be held by NTO at any time for or under the MCDA or with respect to Contractor;
(a)any lack of genuineness, validity, legality or enforceability, or the voidability of, all or any portion of the MCDA due to lack of authority or failure to duly execute;
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(b)any act or thing or omission or delay to do any act or thing which (i) may in any manner or to any extent vary the risk of Guarantor or (ii) would otherwise operate as a discharge of Guarantor as a matter of law;
(c)any prepayments or partial payments under the MCDA and any payment in full satisfaction of less than all of the amounts due under the MCDA;
(d)the substitution or release of any other person from liability for the performance or observance of any covenant, whether by operation of law or otherwise;
(e)NTO’s consent to any assignment or subletting or the assignment or successive assignments of the MCDA by Contractor, or any subletting of the premises demised under the MCDA by Contractor;
(f)the failure to give Guarantor any notice whatsoever, other than any notice that NTO is required to give pursuant to this Guaranty;
(g)any right, power or privilege that NTO may now or hereafter have against Contractor or any collateral;
(h)any change to the corporate existence, structure, or ownership of Contractor or Guarantor;
(i)any assignment, conveyance, mortgage, merger or other transfer, voluntary or involuntary (whether by operation of law or otherwise), of all or any part of Contractor’s interest in the MCDA;
(j)any assignment, conveyance, mortgage, merger or other transfer, voluntary or involuntary (whether by operation of law or otherwise) of all or part of the interest or rights of NTO under the MCDA;
(k)any default by NTO or the Guarantor under this Guaranty; or
(l)the bankruptcy or insolvency of Contractor.
3.To charge Guarantor under this Guaranty no demand shall be required, Guarantor hereby expressly waiving any such demand. NTO shall have the right to enforce this Guaranty without pursuing any right or remedy of NTO against Contractor or any other party, or any security NTO may hold. NTO may commence any action or proceeding based upon this Guaranty directly against Guarantor without making Contractor or anyone else a party defendant in such action or proceeding. Any one or more successive and/or concurrent actions may be brought hereon against Guarantor either in the same action, if any, brought against Contractor and/or any other party or in separate actions, as often as NTO, in its sole discretion, may deem advisable.
4.This Guaranty shall be binding upon Guarantor and its heirs, successors and assigns, and shall inure to the benefit of and may be enforced by the successors and assigns of NTO or by any party to whom NTO’s interest in the MCDA or any part thereof, including the rents, may be assigned whether by way of mortgage or otherwise. Wherever in this Guaranty reference is made to either NTO or Contractor, the same shall be deemed to refer also to the then successor or assign of NTO or Contractor.
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5.Except to the extent this Section 5 is inconsistent with Section 13 herein, Guarantor hereby expressly waives and releases (a) notice of the acceptance of this Guaranty and notice of any change in Contractor’s financial condition; (b) the right to interpose any substantive or procedural defense of the law of guaranty, indemnification or suretyship, except the defenses of prior performance (whether before, during or after any applicable notice and grace periods) by Contractor (of the obligations which Guarantor is called upon to perform under this Guaranty); (c) all rights and remedies accorded by applicable law to guarantors or sureties, including, without limitation, any extension of time conferred by any law now or hereafter in effect; (d) the right to interpose any defense (except as allowed under (b) above), set off or counterclaim of any nature or description in any action or proceeding; and (e) any right or claim of right to cause a marshalling of Contractor’s assets or to cause NTO to proceed against Contractor and/or any collateral held by NTO at any time or in any particular order; provided that Guarantor does not waive or release any defenses set forth in Section 13.
6.Without limiting Guarantor’s obligations elsewhere under this Guaranty, if Contractor, or Contractor’s trustee, receiver or other officer with similar powers with respect to Contractor, rejects, disaffirms or otherwise terminates the MCDA pursuant to any bankruptcy, insolvency, reorganization, moratorium or any other law affecting creditors’ rights generally, Guarantor shall automatically be deemed to have assumed, from and after the date such rejection, disaffirmance or other termination of the MCDA is deemed effective, all Performance Obligations of Contractor under the MCDA to the same extent as if Guarantor had been originally named instead of Contractor as a party to the MCDA and the MCDA had never been so rejected, disaffirmed or otherwise terminated and shall be entitled to all benefits of Contractor under the MCDA. Guarantor, upon such assumption, shall be obligated to perform and observe all of the Performance Obligations whether theretofore accrued or thereafter accruing, and Guarantor shall be subject to any rights or remedies of NTO which may have theretofore accrued or which may thereafter accrue against Contractor on account of any default under the MCDA with respect to the Performance Obligations, notwithstanding that such defaults existed prior to the date Guarantor was deemed to have automatically assumed the Performance Obligations under the MCDA or that such rights or remedies are unenforceable against Contractor by reason of such rejection, disaffirmance or other termination, provided that Guarantor shall have a reasonable time after such assumption to cure non-monetary defaults existing as of the date of such assumption. Guarantor shall confirm such assumption at the request of NTO upon or after such rejection, disaffirmance or other termination, but the failure to do so shall not affect such assumption. Guarantor, upon the assumption of the Performance Obligations under the MCDA, shall have all of the rights of Contractor under the MCDA with respect thereto (to the extent permitted by law). Neither Guarantor’s obligation including but not limited to performance in accordance with this Guaranty nor any remedy for the enforcement thereof shall be impaired, modified, changed, stayed, released or limited in any manner by any impairment, modification, change, release, limitation or stay of the liability of Contractor or its estate in bankruptcy or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of the Bankruptcy Code of the United States or other statute or from the decision of any court interpreting any of the same, and Guarantor shall be obligated under this Guaranty as if no such impairment, stay, modification, change, release or limitation had occurred.
7.This Guaranty and all rights, obligations and liabilities arising hereunder shall be construed according to the substantive laws of New York without reference to choice of law principles. Any legal action, suit or proceeding against Guarantor with respect to this Guaranty shall be brought in New York, New York.
8.Guarantor hereby waives any and all rights of subrogation (if any) which it may have against Contractor as a result of actions taken or amounts paid in connection with or relating to this Guaranty or to the MCDA. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when this Guaranty is in effect and all of the obligations hereunder shall not have been performed in full, such amount shall be held by Guarantor in trust for NTO and turned over to NTO in the exact form received by Guarantor, to be applied against the guaranteed obligations in accordance with the MCDA.
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9.Guarantor represents and warrants to NTO that as of the date hereof:
(a)Guarantor is a [corporation] duly incorporated and validly existing under the laws of [☐].
(b)This Guaranty constitutes the legal, valid and binding obligation of Guarantor, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, and other laws affecting creditors’ rights generally, to moratorium laws from time to time in effect and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(c)No action, suit or proceeding is pending or, to the best of Guarantor’s knowledge, threatened against Guarantor that would materially affect Guarantor’s ability to fully perform its obligations under this Guaranty.
10.[Reserved].
11.The obligations of Guarantor under this Guaranty are independent of Contractor’s obligations under the MCDA, and a separate action or actions may be brought and prosecuted against Guarantor to enforce this Guaranty, irrespective of whether any action is brought against Contractor or whether Contractor is joined in any such action or actions. Any one or more successive and/or concurrent actions may be brought against Guarantor either in the same action, if any, brought against Contractor or in separate actions, as often as NTO, in its sole discretion, may deem advisable.
12.All remedies afforded to NTO by reason of this Guaranty or the MCDA, or otherwise available at law or in equity, are separate and cumulative remedies, and it is stipulated that no one remedy, whether or not exercised by NTO, shall be deemed to be in exclusion of any other remedy available to NTO and shall not limit or prejudice any other legal or equitable remedy which NTO may have.
13.All defenses afforded to Contractor or Guarantor by reason of this Guaranty or the MCDA, or otherwise available to Contractor or Guarantor at law or in equity shall, unless waived under this Guaranty (including under Section 2), be available to Guarantor to the extent Contractor is or would have been entitled to the same defenses under the MCDA or at law or in equity.
14.If any term, covenant, condition or provision of this Guaranty or the application thereof to any circumstance or to Guarantor shall be invalid or unenforceable to any extent, the remaining terms, covenants, conditions and provisions of this Guaranty or the application thereof to any circumstances, or to Guarantor other than those as to which any term, covenant, condition or provision is held invalid or unenforceable, shall not be affected thereby and each remaining term, covenant, condition and provision of this Guaranty shall be valid and shall be enforceable to the fullest extent permitted by law.
15.All notices or documents authorized or required to be given pursuant hereto will be in writing, and will be delivered by the U.S. Postal Service hand or courier delivery or transmitted by electronic mail or other electronic means in accordance with the following:
To NTO:
JFK NTO, LLC Gerrard P. Bushell Chairman and CEO 30 Broad Street, 25th Floor New York, NY 10004 Email: gbushell@onejfk.com
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with a copy to:
JFK NTO LLC
30 Broad Street, 25th Floor
New York, NY 10004
Attention: Legal Department
Email: legal@onejfk.com
or to such other address as these parties may designate by written notice to Guarantor.
Written notices to Guarantor hereunder shall be sent and addressed to:
To Guarantor:
[Guarantor]
E-mail:
Attention:
with a copy to:
[__________]
Notices will be deemed received when actually received in the office of the addressee (or by the addressee if personally delivered) or, when delivery is refused, as shown on the receipt of the U.S. Postal Service, private carrier or other Person making the delivery. If mailed, notices will be deemed effective and served as of the date of the return of verification of delivery of certified or registered mailing of the notice, or one (1) day after deposit with a recognized express overnight mail or courier service. If delivered via electronic mail, notices will be deemed effective and served as of the date of the return of electronic receipt confirmation.
Either Party may change its address for notice by notifying the other Party with a notice in accordance with this Section 16.
16.No amendment or waiver of any provision of this Guaranty nor consent to any departure by Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by NTO and Guarantor, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
17.This Guaranty shall be entered into in consideration of the execution of the MCDA.
18.This Guaranty shall continue in full force and effect and Guarantor’s obligations and liability hereunder shall continue notwithstanding the termination or earlier expiration of the MCDA until the date that the Performance Obligations of Contractor thereunder and guaranteed hereby have been fully performed, provided that this Guaranty shall be reduced and/or terminated in accordance with, and to the extent provided for in, Section 24.7 of the MCDA regardless of whether the Performance Obligations of Contractor thereunder and guaranteed hereby have been fully performed.
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This Guaranty shall inure to the benefit of and be enforceable by NTO and its successors as well as any mortgagee with interest in the Project.
19.This Guaranty may be executed in one or more counterparts, each of which will be deemed an original, and such counterparts will together constitute one and the same contract.
20.This Guaranty may be executed by the Parties and delivered by any electronic means and if so executed and delivered this Guaranty will be for all purposes as effective as if the Parties had executed and delivered an executed original of this Guaranty.
21.EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT THAT IT MAY HAVE TO A JURY TRIAL WITH RESPECT TO ANY CLAIM, CAUSE OF ACTION OR OTHER PROCEEDING IN CONNECTION WITH THIS GUARANTY OR ANY TRANSACTION CONTEMPLATED BY THIS GUARANTY.
22.This Guaranty and any claim, dispute or controversy arising out of, under or related to this Guaranty, the relationship of the Parties under this Guaranty, or the interpretation and enforcement of the rights and obligation of the Parties under this Guaranty will be governed by, and interpreted and enforced in accordance with, the laws of the State of New York, without regard to conflicts of laws principles.
23.Each Party agrees to submit, to the fullest extent permitted by Applicable Law, to the jurisdiction of any New York State court, the U.S. District Court for the Southern District of New York, in each case, sitting in the City and County of New York and any subsequent appellate court, for the settlement of any claim or dispute arising out of, under or related to this Guaranty or any transaction contemplated by this Guaranty. Each Party also waives, to the fullest extent permitted by Applicable Law, any objection that it may have now or in the future to the laying of venue in such courts on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with this Guaranty or any transaction contemplated by this Guaranty.
[signature page follows]
IN WITNESS WHEREOF, the Parties hereto have executed this Guaranty as of the day and year first above written.
JFK NTO LLC
By:
Name:
Title:
[Guarantor]
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145
EXHIBIT O – FORM OF CONCESSION SUBLEASE
JFK International Airport
Jamaica, New York 11430
TERMINAL ONE
CONCESSION SUBLEASE AGREEMENT1
by and between
[·]2
and
[CONCESSIONAIRE]
Dated as of [·]
1 |
Note to Form: Use separate short form for short-term deals / merchandising units. |
2 |
Note to Form: So long as URW Airports JFK T1, LLC (“URW”) is the concessions manager under the Management Concessions Development Agreement, URW, otherwise JFK NTO LLC. |
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TABLE OF CONTENTS
ARTICLE 1. BASIC PROVISIONS |
2 |
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Section 1.1 |
Basic Provisions |
2 |
Section 1.2 |
Structure of Agreement |
2 |
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ARTICLE 2. TERM; REPRESENTATIONS |
2 |
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Section 2.1 |
Term |
2 |
Section 2.2 |
Conditions to the Effective Date |
3 |
Section 2.3 |
Compliance with Lease Agreement |
3 |
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ARTICLE 3. GRANT OF RIGHTS, USES AND PRIVILEGES |
4 |
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Section 3.1 |
Premises |
4 |
Section 3.2 |
Equipment |
4 |
Section 3.3 |
Common Use Space |
5 |
Section 3.4 |
Permitted Uses |
5 |
Section 3.5 |
Operating Standards |
6 |
Section 3.6 |
Refurbishment Cycle |
7 |
Section 3.7 |
Required Hours of Operation |
7 |
Section 3.8 |
Street Pricing Policy |
8 |
Section 3.9 |
Alcoholic Sales on Premises |
9 |
Section 3.10 |
Concessionaire Marks |
10 |
Section 3.11 |
Rights Reserved |
11 |
Section 3.12 |
Maintenance, Replacement and Repair |
11 |
Section 3.13 |
Taxes, Licenses and Permits |
12 |
Section 3.14 |
Utilities |
12 |
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ARTICLE 4. FEES |
13 |
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Section 4.1 |
Rental |
13 |
Section 4.2 |
Gross Receipts |
13 |
Section 4.3 |
Additional Fees and Contribution |
15 |
Section 4.4 |
Disallowed Charges |
15 |
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ARTICLE 5. PAYMENTS |
15 |
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Section 5.1 |
Late Payments |
15 |
Section 5.2 |
Reporting |
16 |
Section 5.3 |
Security Deposit |
16 |
Section 5.4 |
Advance Payments |
17 |
Section 5.5 |
Payment Default by Concessions Manager Pursuant to the Lease Agreement |
18 |
Section 5.6 |
No Port Authority Obligation |
18 |
Section 5.7 |
Payments Collection |
18 |
Section 5.8 |
Port Authority Revocation of the Consent to Sublease |
18 |
TABLE OF CONTENTS
(continued)
SCHEDULE 1 |
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Definitions |
21 |
SCHEDULE 2 |
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General Conditions |
29 |
SCHEDULE 3 |
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Additional Mandatory Sublease Provisions |
43 |
SCHEDULE 4 |
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Required Disclosures |
57 |
SCHEDULE 5 |
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Common Use Space |
58 |
EXHIBIT 1 |
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Form of Concessionaire Certification |
59 |
EXHIBIT 2 |
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Concessionaire Designated Premise |
61 |
EXHIBIT 3 |
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F&B Standards |
62 |
EXHIBIT 4 |
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Airport Concession Disadvantaged Business Enterprise (ACDBE) Participation |
63 |
EXHIBIT 5 |
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Refurbishment Cycle |
64 |
EXHIBIT 6 |
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Form of Letter of Credit |
65 |
EXHIBIT 7 |
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Evidence of Signed Labor Peace Agreement |
72 |
EXHIBIT 8 |
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Letter in Lieu of Exhibit 7 |
73 |
CONCESSION SUBLEASE AGREEMENT
TERMINAL ONE – JFK INTERNATIONAL AIRPORT
This CONCESSION SUBLEASE AGREEMENT, is made and entered as of [●], by and between URW Airports JFK T1, LLC3 (the [“Concessions Manager”]/[“Terminal Operator”])4 a Delaware limited liability company, and [●] (the “Concessionaire”), a [●] organized under the laws of [●].
RECITALS
WHEREAS, the Port Authority of New York and New Jersey, a body corporate and politic, established by compact between the States of New Jersey and New York with the consent of the Congress of the United States of America, and having an office at 4 World Trade Center, 150 Greenwich Street, 19th Floor, New York, New York 10007, in the Borough of Manhattan, City, County and State of New York (the “Port Authority”), and [JFK NTO LLC (the “Master Lessee”)]5 are parties to lease number [●], made effective as of [●], as amended, revised, supplemented or otherwise modified from time to time (the “Lease Agreement”).
[WHEREAS, the Concessions Manager and the Master Lessee are parties to that certain master concession developer agreement dated as of [●] (the “MCDA”) pursuant to which the Master Lessee engaged the Concessions Manager to exclusively plan, develop, design, directly sublease from the Master Lessee and sub-sublease to Concession Sublessees (on behalf of the Master Lessee) and manage the Concessions Program, including food and beverage, retail, duty free services, foreign exchange and certain other commercial services and amenities at the Terminal, other than any commercial service or amenity constituting a Reserved Use.]6
WHEREAS, the Port Authority consented to the MCDA as evidenced by that certain [Consent to Sublease], dated as of [●], among the Port Authority, Concessions Manager and the Master Lessee (“Master Consent”), and this Agreement is subject to the aforesaid Master Consent, the Lease Agreement and the Basic Lease.
WHEREAS, the Concessionaire desires to design and construct the Premises (as hereinafter defined) and operate [retail/food and beverage/other type] concessions in Terminal One (the “Terminal”) at the John F. Kennedy International Airport (the “Airport”) located in New York, New York in accordance with the terms and conditions of this Agreement.
WHEREAS, as a condition precedent to the effectiveness of this Agreement, the Concessionaire will enter into concurrently herewith, the prior executed Consent to Sublease (the “Consent to Sublease”) with the Port Authority, as required hereunder and under the Lease Agreement, authorizing the Concessionaire to operate [retail/food and beverage/other type] concessions in the Premises as described hereunder.
AGREEMENT
3 Note to Form: So long as URW is the Concessions’ manager under the Management Concessions Development Agreement, [URW], otherwise the JFK NTO LLC.
4 Note to Form: Change to “Terminal Operator” throughout if JFK NTO LLC is the sublessor.
5 Note to Form: Include as applicable.
6 Note to Form: Include if applicable, to the extent URW is the Concessions Manager.
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NOW THEREFORE, in consideration of the foregoing, and the representations, warranties, and conditions set forth below, the Parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE 1
BASIC PROVISIONS
1.1Basic Provisions The following abstract of basic provisions is for convenience only and should not be solely relied upon without full and complete reference to the relevant provisions of this Agreement:
(a) |
CONCESSIONAIRE NAME: |
[●] |
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(b) |
ADDRESS FOR NOTICES: |
[●] |
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(c) |
TERM: |
[●] years |
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(d) |
SCHEDULED EXPIRATION DATE: |
[●] |
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(e) |
RENT AND OTHER FEES: |
[●] |
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(f) |
SECURITY DEPOSIT: The sum of $[●] in the form of cash or letter of credit. |
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1.2Structure of Agreement This Agreement consists of Article 1 to Article 5, the definitions and interpretation provisions set out in in Schedule 1, the general conditions set out in Article 6 to Article 10 of Schedule 2, the additional mandatory provisions set out in Schedule 3 and the remaining Schedules and the Exhibits.
ARTICLE 2
TERM; REPRESENTATIONS
2.1Term
(a)The term of this Agreement shall commence on [Phase A DBO, as notified to the Concessionaire by the [Concessions Manager]/[Master Lessee] at least [thirty (30) days] prior to such date]/[other date] (the “Commencement Date”) and expire on the earlier of (i) 11:59 p.m. Eastern Standard Time on the date which is the [●] anniversary of the Commencement Date, or (ii) the date that is one (1) day prior to the expiration or earlier of termination of the Lease Agreement (the “Expiration Date”), or on such earlier date as specified in Article 7 of Schedule 2 (the “Term”).
(b)This Agreement shall terminate and expire as to the Concessionaire’s right hereunder to use and occupy the Premises, without notice to the Concessionaire, on the day preceding the Expiration Date; on such earlier date as the [Concessions Manager]/[Master Lessee] and the Concessionaire may agree upon; or on the effective date of any revocation of the Port Authority’s consent to this Agreement, if any; provided, however, to the extent not prohibited by Applicable Law, this Agreement shall not terminate or expire in connection with any assignment or foreclosure of the Lease Agreement, or execution of a New Agreement, in accordance with Section 83 (Project Financing) of the Lease Agreement.
(c)The Concessionaire acknowledges and agrees that it shall not be entitled to the right to use the Common Use Space in accordance with the terms and conditions set forth herein and notwithstanding anything to the contrary in this Agreement, until the Effective Date.
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Neither the Concessions Manager nor the Master Lessee shall be subject to any liability for failure to give the right to use the Common Use Space until the Effective Date.
2.2Conditions to the Effective Date The Effective Date of this Agreement shall be conditioned upon each of the following having been satisfied in full:
(a)the delivery of a fully executed Consent to Sublease entered into with the Port Authority in form and substance acceptable to the Port Authority; and
(b)no later than twenty (20) days prior to the Effective Date, the Concessionaire shall have delivered to the Concessions Manager, and the Concessions Manager shall have provided to the Port Authority (with a copy to the Port Authority’s Chief Procurement Officer and General Counsel), the written certifications signed by an authorized officer of the Concessionaire in the form attached as Exhibit 1 (Form of Concessionaire Certification) hereto. The Concessionaire acknowledges and agrees that if the Concessionaire is unable to provide such certifications in a timely manner, or if the Port Authority, after disclosing known relevant facts and information to the Concessions Manager, reasonably determines based on conclusive evidence known to it at the time, that the Concessionaire’s certifications are not accurate, the Port Authority shall have the right to disapprove and cancel this Agreement or if the Port Authority’s conclusion is reached after this Agreement has been executed and takes effect, the Port Authority shall have the right to terminate this Agreement effective immediately upon notice to the Concessionaire and the Concessions Manager; provided that the Port Authority has delivered such termination notice to the Concessionaire and the Concessions Manager within thirty (30) days after the date of execution of this Agreement, it being acknowledged and agreed that the absence of a response from the Port Authority shall not be interpreted as a waiver of the Port Authority’s right to terminate this Agreement. The Port Authority may also conduct an investigation, make inquiries, undergo a vendor integrity check, require a mitigation plan acceptable to the Port Authority or commence any legal action or proceeding, as the Port Authority deems necessary or appropriate, for purposes of verifying compliance with the applicable certifications.
2.3Compliance with Lease Agreement
(a)General This Agreement shall be subject and subordinate to all of the terms, covenants, conditions and provisions of the Lease Agreement and the Basic Lease and to any interest superior to that of the Port Authority, and in each case, to the rights and obligations of the Port Authority thereunder.
(b)Compliance with the Lease Agreement Without limiting the application of any requirements more specifically described in this Agreement and notwithstanding the specification of similar or more limited requirements in this Agreement, the Concessionaire shall be bound by and subject to all the terms and provisions of the Lease Agreement applicable to the Master Lessee, with respect to the Concessionaire’s occupancy and use of the Premises or any portion thereof, and the Concessionaire’s operations and activities at the Airport, including without limitation the obligations of the Concessions Manager and Master Lessee under the Lease Agreement with respect to compliance with all Applicable Laws, Applicable Standards, the conduct of prohibited activities and operations, rights of entry and nondiscrimination and restrictions upon subleasing, in each case to the extent applicable to the Concessionaire’s operations and activities at the Airport. Except as expressly permitted under and in accordance with the provisions of Section 20, as applicable, of the Lease Agreement, this Agreement may not be modified, discharged, extended, restated or renewed without the prior written consent of the Port Authority.
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(c)Lease Provisions Incorporated into this Agreement Without limiting 2.3(b) above or any other provision of this Agreement and notwithstanding anything more specific than the Lease Agreement or otherwise contrary to the Lease Agreement herein, the following sections of the Lease Agreement are hereby incorporated into this Agreement mutatis mutandis, and the Concessionaire is bound hereunder as if the Concessionaire were the Master Lessee under the Lease Agreement: Section 10(c) (No Interference with Systems); Section 10(d) (Safety Violations); Section 10(e) (Obstacles); Section 10(g) (Automotive Operation); Section 10(h) (Floor Overload); Section 10(j) (Use of Structural Members); Section 45 (Force Majeure) Section 54 (Right to Perform the Lessee’s Obligations) and Section 57 (Environmental Obligations). Without limiting the foregoing obligations under the Lease Agreement, the Concessionaire agrees to the matters set forth in Schedule 3 (Additional Mandatory Sublease Provisions) which forms part of this Agreement.
(d)Survival. The Concessionaire’s obligation to comply with the Lease Agreement in accordance with this Section 2.3 shall survive the expiration or earlier termination of this Agreement with respect to obligations arising or accrued prior to such expiration or termination.
ARTICLE 3
GRANT OF RIGHTS, USES AND PRIVILEGES
3.1Premises
(a)The areas to be made available by the Concessions Manager to the Concessionaire for the operation of the [retail/food and beverage/other type] concession is to be located in [●] of the Terminal as depicted on Exhibit 2 (Concessionaire Designated Premise), attached hereto (the “Premises”).
(b)The Concessionaire and its designated agents may enter the Premises after the Effective Date and prior to the Commencement Date, with prior written consent of the Concessions Manager, which shall not be unreasonably withheld, for the purpose of designing and constructing the Premises provided that the Concessionaire has the required insurance coverage as set forth in Article 6(4) of Schedule 2.
(c)The Master Lessee shall, at its sole cost and expense and not chargeable, directly or indirectly, to the Concessions Manager or the Concessionaire, build out the rough space of the Premises and install the basic infrastructure and equipment for the supply of necessary Utilities to the Premises and shall be required to provide fire alarm, fire protection, means for heating, cooling, outside air duct, [exhaust air duct for commercial cooking,] and space separation between occupied and construction sites, in each case, in accordance with the terms and conditions of the Lease Agreement.
(d)The Master Lessee shall, at its sole cost and expense and not chargeable, directly or indirectly, to the Concessions Manager or the Concessionaire, bring to the perimeter of the Premises such pipes, wires and conduits for the supply of electricity, water, natural gas and other Utilities necessary and appropriate in connection with the operations of the Concessionaire and shall provide said Utilities to the Concessionaire, in each case, in accordance with the terms and conditions of the Lease Agreement.
3.2Equipment
(a)Subject to availability and upon [●] days prior written request, the Master Lessee shall use reasonable efforts to provide adequate storage space and related facilities in the Terminal as are necessary or appropriate for each Concessionaire to operate its business on the Premises, subject to rental payments by the Concessionaire charged by the Master Lessee, in accordance with the terms and conditions of the Lease Agreement.
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(b)The Concessionaire shall furnish and install at its own expense all necessary fixtures, stands, counters, equipment and other personal property required in connection with its business and all work necessary or required to finish the Premises, including the finishing of the floors and ceilings from the structural slab and the walls from the rough partitions.
(c)The Concessionaire shall provide at least one cash register or other location within its Premises where customers shall have the right to pay for purchases of goods and/or services in the form of cash. For the avoidance of doubt, each and every food court at the premises operated by the Concessionaire shall have at least one cash register or other location where customers shall have the right to pay for purchases of goods and/or services in the form of cash.
(d)The Concessionaire shall install and use such cash registers, sales slips, invoicing machines and any other equipment and devices, including without limitation computerized record-keeping systems, for recording orders taken, or services rendered, as may be appropriate to the Concessionaire’s business and necessary or prudent to keep accurate books and records, and without limiting the generality of the foregoing, for any activity involving cash sales, install and use cash registers or other electronic cash control equipment that provides for non-resettable totals. At the request of the Concessions Manager, the Concessionaire shall integrate into the Concessions Manager’s unified point of sale system.
(e)The Concessionaire shall permit, during ordinary business hours, the inspection by the officers, employees and representatives of the Port Authority and those of the Concessions Manager of any equipment used by the Concessionaire, including but not limited to cash registers and recording tapes.
3.3Common Use Space
(a)The Concessions Manager hereby grants for the Concessionaire to use, in common with others having such right, the [waiting rooms, halls, rest rooms and other facilities] in the Terminal for the Concessionaire’s employees, patrons, guests and invitees; and Concessionaire, in common with others having such rights, shall have the full and unrestricted normal right of access and ingress to and egress from the Terminal and Premises for the Concessionaire’s employees, patrons, guests, invitees, suppliers of materials and furnishers of services both for themselves and for their equipment, vehicles and other property, as reasonably necessary and appropriate for the Concessionaire’s operations at the Terminal, but excluding space leased to other concessionaires, service providers or vendors and government agencies (collectively, the “Common Use Space”) for all uses permitted under the terms hereof; provided, however, such rights of access and egress shall be subject nevertheless to the Port Authority’s security-related and good order requirements at the Airport and the Lease Agreement generally.
(b)The Concessions Manager shall maintain a policy of providing open access to the Premises and achieving a balanced utilization of Airport facilities. The Concessions Manager shall retain under its exclusive possession and control all facilities at the Premises for common use by the Concessionaire in accordance with this Agreement.
(c)The Concessionaire shall be required to follow the rules and guidelines governing the use of and operation at the Common Use Space generally, as administered by the Concessions Manager.
3.4Permitted Uses
(a)The Premises shall be used by the Concessionaire only for the purpose of operating [retail/food and beverage/other type] concessions as approved by the Concessions Manager. Insofar as this Agreement grants, permits or contemplates the use of space or facilities or the doing of any other act or thing at the Terminal by the Concessionaire, such use or the doing of such act or thing is to be in connection with the operation of Concessionaire’s business as herein described.
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(b)The Concessionaire shall be prohibited from performing any activity or services at the Airport for which the Port Authority requires the issuance of a Port Authority permit providing for payment of fees to the Port Authority unless the Concessionaire obtains such a Port Authority-issued permit if so required by and consistent with Applicable Law, Applicable Standards and/or Port Authority policy and pays such fees thereunder. If the Concessionaire performs any such activity or services at the Airport without, or prior to, obtaining a Port Authority-issued permit in contravention of this 3.4(b), and without limiting any of the Port Authority’s rights as a result thereof, the Concessionaire shall pay any such fees due and payable to the Port Authority pursuant to such permit for any activity or services at the Airport performed without, or prior to, obtaining such permit; provided that payment of such fees shall not absolve the Concessionaire from the obligation to diligently take any and all action necessary to obtain such Port Authority-issued permit or to cease its permit-required activities immediately upon being advised that such a Port Authority permit shall not be granted.
(c)The Concessionaire may make arrangements for the performance of services and functions only by organizations at the Airport authorized by lease, permit, contract or other Port Authority agreement to perform such services or functions.
(d)The Concessionaire shall be required to follow the rules and guidelines governing the use of and operation at the Common Use Space and Terminal, as administered by the Concessions Manager with respect to the Premises governed by the MCDA and set forth in the Rules and Regulations as issued from time to time pursuant to the Lease Agreement.
3.5Operating Standards The Concessionaire shall:
(a)not take any action, or omit to take any action, which would result in a breach of the Lease Agreement;
(b)observe and obey all rules and regulations governing the conduct and operation of the Terminal and the Airport, as set forth in the Rules and Regulations;
(c)use its best efforts in every proper manner to maintain, develop and increase the business conducted by it under this Agreement;
(d)not divert, or cause or allow to be diverted, any business from the Premises or the Airport;
(e)furnish good, prompt and efficient service hereunder, adequate to meet all demands therefor at the Premises; furnish said service on a fair, equal and non-discriminatory basis to all users thereof; and charge fair, reasonable and non-discriminatory prices for each unit of sale or service, provided that the Concessionaire may make reasonable and non-discriminatory discounts, rebates or other similar types of price reductions to volume purchasers;
(f)comply with “Street Pricing” policy, in accordance with the terms of 3.8;
(g)promptly observe, comply with and execute the provisions of any and all present and future governmental laws, rules, regulations, requirements, orders and directions which may pertain and apply to its operations or the use and occupancy of the Premises; (h)procure and maintain insurance consistent with requirements set forth under Article 6(4) of Schedule 2 and, if the insurance requirements set forth in the Consent to Sublease are different, then whichever constitutes the broader or more comprehensive insurance requirements shall control;
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(i)comply with the Minimum Wage Policy and implementing rule in accordance with the terms set forth in paragraph 20 of Schedule 3;
(j)if the Concessionaire is permitted under this Agreement to sell food and/or beverages, it shall, in connection with any preparation, packaging, handling, storage, delivery and dispensing of such food and/or beverages, comply with the provisions set forth on Exhibit 3 (F&B Standards);
(k)take all actions as reasonably necessary to promote labor harmony in accordance with the terms set forth in paragraph 21 of Schedule 3;
(l)if requested by the Port Authority, Master Lessee or the Concessions Manager, cooperate with the Office of the Inspector General of the Port Authority;
(m)not use the Premises for lodgings or sleeping purposes or for any immoral purposes;
(n)conduct its business in the Premises in a commercially reasonable manner so as to maximize Concessionaire’s revenues in accordance with best industry practices and standards observed generally by first-class business enterprises of regional or national scope which operate at other major airports; and
(o)promptly, at the Concessionaire’s cost and expense, at the time or times when and to the extent that the Port Authority may direct, comply with any orders or recommendations or suggestions in written form made by the Administrator of the FAA, TSA or any other governmental officer or body having jurisdiction over the enforcement of the obligations of the Port Authority in connection with federal airport aid.
3.6Refurbishment Cycle
The Concessionaire shall adhere to the refurbishment cycle as set forth on Exhibit 5 (Refurbishment Cycle) hereto and shall make such reinvestments as required therein.
3.7Required Hours of Operation
The Concessionaire shall open for business and provide concession services to the general public as provided below:
(a)[if the Concessionaire is in the business of providing retail food and beverage service, during the hours commencing no later than one hour prior to the first scheduled aircraft departure from the Terminal and continuing until at least the completion of boarding for the last actual departure from the Terminal of a flight scheduled for departure therefrom the same day;]
(b)[if the Concessionaire is in the business of providing retail news and gifts, during the hours commencing no later than one hour prior to the first scheduled aircraft departure from the Terminal and continuing until at least the completion of boarding for the last actual departure from the Terminal of a flight scheduled for departure therefrom the same day; and]
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(c)[if the Concessionaire is in the business of providing [**] during the hours commencing no later than one hour prior to the first scheduled aircraft departure from the Terminal and continuing at least until the later of (i) the completion of boarding for the last actual departure from the Terminal of a flight scheduled for departure therefrom the same day and (ii) one hour after the last actual arrival at the Terminal of a flight scheduled for arrival at the Terminal the same day.]
3.8Street Pricing Policy
(a)The Concessionaire in its operations pursuant to this Agreement shall not charge prices to its customers in excess of 110% of “Street Prices,” defined as follows:
(i)if the Concessionaire conducts a similar business in off-airport location(s) in the Greater New York City-Northern New Jersey Metropolitan Area (the “Metro Area”), “Street Prices” shall mean the price regularly charged by the Concessionaire for the same or similar item in the Metro Area;
(ii)if the Concessionaire does not conduct a similar business in off-airport location(s) in the Metro Area, “Street Prices” shall mean the average price regularly charged in the Metro Area by similar retailers for the same or similar item;
(iii)if neither the Concessionaire nor other similar retailers sell a particular item in the Metro Area, “Street Prices” shall mean the price regularly charged by the Concessionaire or similar retailers for the same or similar item in any other geographic area, with a reasonable adjustment for any cost-of-living variance between such area and the Metro Area; and
(iv)if the Concessionaire is in the business of selling duty-free goods, “Street Prices” shall mean the price regularly charged by the Concessionaire or other similar concession operator for the same or similar duty-free item at other major airports serving large urban areas in the United States of America, not including the Port Authority airports.
(b)If the Concessionaire offers food and beverage products, it shall comply with the Port Authority’s Value for Money Options Program as further defined in Airport Rules & Regulations, General Manager’s Bulletins and the Customer Service Standards Manual.
(c)The Concessionaire shall implement its Street Prices program in compliance with Airport Rules & Regulations, General Manager’s Bulletins and the Customer Service Standards Manual, including, the postage of signage regarding the Street Prices program and the provision of point-of-sale data in accordance with the guidelines issued by the Port Authority. The Concessionaire (and each relevant Concession Sublessee) shall submit to the Concessions Manager to submit to the Port Authority, from time to time in accordance with the guidelines issued by the Port Authority, an annual (or other periodic) pricing report demonstrating compliance by such reporting entity with the aforementioned “Street Pricing” policy, as such policy may be amended from time to time. For purposes of establishing the Street Price of an item, any difference in the size or quality of a product or service shall constitute a basis for a price differential.
(d)Street Pricing Violations:
(i)Violation Notices
(i)The Concessions Manager shall (acting directly or at the direction of the Master Lessee) provide written notice (a “Concessions Manager Notice of Street Pricing Violation”) to the Concessionaire if the Concessions Manager finds any areas of non-compliance with the “Street Pricing” policy during periodic price reviews, which may include spot-checks.
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(ii)The Port Authority shall provide written notice (a “Port Authority Notice of Street Pricing Violation”) to the Concessionaire, the Master Lessee and the Concessions Manager, if the Port Authority finds any areas of non-compliance with the “Street Pricing” policy during periodic price reviews, which may include spot-checks by Port Authority staff or contractors.
(iii)For purposes hereof, non-compliance with the “Street Pricing” policy may be in the form of failure to submit required forms and information for approval, failure to maintain required signage, and charging prices that are not in compliance with the “Street Pricing” policy.
(ii)The Concessionaire shall (x) correct any areas of non-compliance within forty-eight (48) hours of its receipt of any Concessions Manager Notice of Street Pricing Violation or Port Authority Notice of Street Pricing Violation and (y) provide written documentation of the resolution of such non-compliance to the Port Authority, the Master Lessee and the Concessions Manager.
(iii)The Concessions Manager shall provide Corrective Actions Forms to the Master Lessee to submit to the Port Authority with respect to all Street Pricing discrepancies, as noted in any Concessions Manager Notice of Street Pricing Violation, as well as copies of the written documentation of the resolution of such discrepancies.
(iv)In the absence of approved pricing consistent with the “Street Pricing” policy:
(i)The Port Authority may (x) designate similar retailers consistent with the “Street Pricing” policy, (y) calculate the average price for similar products or service consistent with the “Street Pricing” policy and (z) direct the maximum pricing that the Concessionaire charges for that product or service.
(ii)The Concessionaire may submit to the Port Authority for the Port Authority’s consideration a written justification of its price determination, however the Concessionaire shall be required to and shall adopt the maximum prices established by the Port Authority until the evaluation of such justification is completed and alternative pricing is approved by the Port Authority.
(v)If the Concessionaire does not make appropriate adjustments to comply with the “Street Pricing” policy within three (3) days of its receipt of any Concessions Manager Notice of Street Pricing Violation or Port Authority Notice of Street Pricing Violation, the products and services which are not in compliance with the “Street Pricing” policy may be required to be removed from the Premises, and liquidated damages may be imposed by the Port Authority. In the event of repeated or continued failures to address non-compliance with the “Street Pricing” policy, liquidated damages may be imposed by the Port Authority for the period for which non-compliance with the “Street Pricing” policy has existed and continues to exist and the Concessionaire may be deemed to be in material breach of this Agreement and/or the Consent to Sublease, as determined by the Port Authority.
(e)The breach of the aforesaid requirements, as amended from time to time, shall be deemed a breach of the Concessionaire’s obligations under this Agreement.
3.9Alcoholic Sales on Premises
(a)Consistent with the Rules and Regulations (as the same may be modified from time to time), the Concessionaire shall be authorized to serve, and customers in concession locations shall be permitted to order, alcoholic beverages for consumption within the area where such alcoholic beverages are served.
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(b)In the event orders are placed and fulfilled through iPads and other tablets and devices, the Concessionaire shall comply with a protocol whereby (i) purchases must be traceable electronically, (ii) Concessionaire shall provide adequate on-site staff at the Premises to implement a protocol that is approved by the Concessions Manager, the Master Lessee, the Port Authority and the New York State Liquor Authority concerning alcoholic beverage consumption at the Premises, and (iii) Concessionaire shall train its staff to properly identify over-consumption of alcoholic beverages at the Premises and direct such staff to take appropriate action.
(c)The Port Authority shall have no liability vis-à-vis the Concessionaire, the Concessions Manager and/or the Master Lessee in connection with the Concessionaire’s implementation of, and compliance with, the pre-approved protocol, described in the paragraph above, and , without limiting any other indemnity, hold harmless or defense obligations of the Concessionaire hereunder, or any rights and remedies available to the Port Authority at law or in equity, the Concessionaire, the Concessions Manager and the Master Lessee shall indemnify and hold harmless the Port Authority Indemnified Parties from and against any claims, causes of action and the like arising out of non-compliance with any of subclauses (i) through (iii) of 3.9(b) above, and non-compliance with the Rules and Regulations. Nothing in this Agreement or any concession management agreement shall serve to permit the Concessionaire to sell or cause the sale of alcoholic beverages at locations or in a manner that is inconsistent with the alcoholic beverage license(s) issued to it by the New York State Liquor Authority or the rules and regulations governing alcoholic beverages as to which the New York State Liquor Authority has jurisdiction.
3.10Concessionaire Marks
(a)The Concessions Manager may list Concessionaire in one or more “Concessionaire Directories” to be located within the Terminal for the convenience of passengers. The design, layout, location, size, and placement of any Concessionaire Directory and Concessionaire’s listing therein shall be at the sole discretion of the Concessions Manager. The Concessionaire hereby grants the Concessions Manager, the Master Lessee and the Port Authority a royalty-free, non-exclusive license to use Concessionaire Marks; provided that such use shall be limited to the following: (i) listing the Concessionaire’s name on Concessions Manager’s website, and (ii) inclusion of the Concessionaire’s name and logo in such Concessionaire Directories or other marketing or promotional materials describing Concessions Manager’s leased Premises and the Concessions Manager or Port Authority generally.
(b)This Agreement shall control in the event of any ambiguity or conflict between the terms of this Agreement and the terms of the Concessionaire’s franchise or license agreement, as applicable. Accordingly, by way of example only, if the franchisor reserves any rights under the “[INSERT APPLICABLE MARK]” franchise agreement to directly, or through a successor franchisee, enter upon, occupy or operate at the Premises in the event of a breach under or termination of the franchise agreement, such reserved rights shall not be binding upon, or enforceable against, the Port Authority, the Master Lessee or the Concessions Manager and no such party intends to grant the franchisor any third party beneficiary rights under this Agreement or Consent to Sublease. In the event of the revocation, termination or expiration of said franchise agreement or the Concessionaire’s rights thereunder to operate at the Premises under the “[INSERT APPLICABLE MARK]” trade name, the Concessionaire shall not be entitled to operate at the Premises as a franchisee of another franchisor or under a different Concessionaire Mark without the prior written consent of the Port Authority.
(c)Failure to comply with this 3.10 shall be an Event of Default hereunder and under the Consent to Sublease. The Concessionaire’s obligations to indemnify and hold harmless the Concessions Manager, [the Master Lessee] and the Port Authority Indemnified Parties and their respective Commissioners, directors, officers, employees, agents and representatives hereunder shall include any claims, damages, losses, risks, liabilities and expenses (including, without limitation, attorney’s fees and
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disbursements) arising out of, relating to, or in connection with Concessionaire’s breach of any of its covenants, representations, and warranties made under this 3.10 including, but not limited to, any claim made by, through or under (i) a franchisor based on, relating to or arising out of Concessionaire operating at the Premises as a franchisee and (ii) a third party claiming rights by, through or under the Concessionaire including, without limitation, any alleged sub-franchisee or sub-licensee.
3.11Rights Reserved
(a)The rights of the Port Authority in the Premises are those granted to it by the Basic Lease, and no greater rights are granted or intended to be granted to the Concessionaire than the Port Authority has power thereunder to grant. The Concessionaire shall not use any portion of the Airport for any use other than as permitted under the Basic Lease and the Lease Agreement and as permitted under this Agreement. The Concessionaire shall exercise the privileges granted under this Agreement in a manner consistent with the Master Lessee’s obligations under the Lease Agreement and the Port Authority’s obligations under the Basic Lease to the extent applicable to the Concessionaire’s obligations under this Agreement and the related Consent to Sublease
(b)Section 74 (Reserved Uses) of the Lease Agreement describes the Reserved Uses (as defined in the Lease Agreement) which are reserved therein to the Port Authority. The Concessionaire acknowledges that it has received, read and understands such provisions and agrees that it shall not take any action, or omit to take any action, which would result in a breach of the provisions of Section 74 (Reserved Uses) of the Lease Agreement which are incorporated by reference into this Agreement as if more fully set forth herein.
(c)Nothing herein contained shall prevent the Concessions Manager from allowing other tenants of the Terminal from establishing other [retail/food and beverage/other type] concessions for the exclusive use of their own employees, authorized guests, patrons, or invitees.
(d)The Concessionaire shall not have the exclusive right to operate a [retail/full-line food/other type] concession in the Terminal.
(e)Each of the Concessions Manager and/or the Master Lessee reserves the right to further develop the Premises in accordance with the Lease Agreement. In the event that such development directly and indirectly affects the Premises, Concessions Manager and the Concessionaire shall use their best efforts to minimize any negative effects on the other party during the development. In no event shall a reduction in the Revenue Share herein be granted.
(f)The Concessions Manager[and/or the Master Lessee] shall have the right (but not be obligated) to enter the Premises in any emergency at any time and, at other reasonable times, to examine the Premises and to make such repairs, replacements and improvements as the Concessions Manager[and/or the Master Lessee] may deem necessary and reasonably desirable.
(g)The Port Authority shall have the right to enter the Premises to inspect the same in accordance with the provisions of Section 18 (Rights of Entry Reserved) of the Lease Agreement, the terms of which are incorporated herein by reference as if more fully set forth herein.
3.12Maintenance, Replacement and Repair
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(a)Improvements The Concessionaire agrees that nothing in this Agreement shall be deemed to imply that the Concessionaire has the right to make any alteration, demolition, installation, addition or improvement to any portion of the Premises, structural or non-structural, exterior or interior (other than trade fixtures, removable without damage to the freehold, any such damage to be immediately repaired by the Concessionaire), except pursuant to the TCAP Process and the Requirements and Provisions for Work and in the event any construction, improvement, alteration, modification, repair, replacement or addition is made not in accordance with the TCAP Process and/or the Requirements and Provisions for Work then, upon notice so to do, the Concessionaire will remove the same or, at the option of the Concessions Manager, cause the same to be changed to the satisfaction of the Concessions Manager. In case of any failure on the part of the Concessionaire to comply with such notice, the Concessions Manager or the Master Lessee may effect the removal or change and the Concessionaire shall pay the cost thereof to the Concessions Manager or the Master Lessee, as applicable. Neither the Concession Manager nor the Master Lessee shall impose any charge, directly or indirectly, on the Concessionaire in connection with the review or comment on any designs, drawings, specifications or plans of the Concessionaire relating to the TCAP Process submission, or any amendments to, substitutions of or resubmissions of same, or any other aspect of the TCAP Process.
(b)Damage or Destruction of Premises by Concessionaire The Concessionaire shall make all repairs, replacements and/or painting and, subject to and in accordance with the provisions of this Agreement and the Lease Agreement, do all rebuilding, of all or any part of the Terminal and the Premises, including therein, without limitation thereto, walls, partitions, floors, ceilings, columns, windows, doors, glass of every kind, fixtures, systems for the supply of heat, water hot and cold, gas, electricity and fuel and for the furnishing of fire-alarm fire-protection, sprinkler, sewerage, drainage, air-conditioning, telephone, tele-register, pneumatic-tube dispatch and intercommunication services, including lines, pipes, mains, wires, conduits and equipment connected with or appurtenant to all such systems, which may be damaged or destroyed by the negligence, acts or omissions of the Concessionaire, its officers, agents or employees or of other persons on or at the Premises with the Concessionaire’s consent, and shall pay promptly pay the cost of such repairs, replacements, maintenance and/or rebuilding work.
3.13Taxes, Licenses and Permits
The Concessionaire shall collect, as appropriate, and pay any fees, taxes or special assessments which may be levied or assessed upon the Premises and its business therein, and to save the Concessions Manager, the Port Authority and said Premises harmless from any claim or liens in connection with such taxes and assessments.
3.14Utilities
(a)Common Usage Subject to 3.14(b), the Master Lessee will be responsible for the installation of the necessary infrastructure and equipment for the supply to the Concessionaire of Utilities, including hot and chilled water, water and sewage, electricity, data (LAN and WLAN networks) fiber and distributed antenna systems (the “Covered Utilities”) at the Premises where appropriate, to be used on a common basis among Concessionaires without any cost to the Port Authority, to the Concession Manager or to the Concessionaire.
(b)Specifically Identifiable Usage There shall be no payments by the Concessionaire to the Master Lessee or to the Concessions Manager for any Utilities which may be furnished to the Concessionaire by the Master Lessee; provided, however, that the Master Lessee may charge the Concessionaire for the cost of Utilities that the Concessionaire directly (i.e., for consumption in its Premises) uses and which are specifically identifiable as the Concessionaire’s exclusive usage, only through metering, sub-metering or another allocation methodology, at a rate equal to the actual unit cost to the Concessions Manager for such Utilities, without any mark-up or administrative charge. The Concessions Manager shall, at the request of the Concessionaire, provide the Concessionaire copies of the monthly bills from the utility provider for its space if there is a separate meter installed by the utility provider or, if the Concessions Manager installs a sub-meter, monthly invoices showing actual meter reading accompanied by copies of invoices from the utility provider showing the actual unit costs of such Utilities paid by the Concessions Manager, in each case subject to reasonable verification by the Concessionaire.
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(c)Port Authority not obliged The Concessionaire acknowledges and agrees that, except as may be specifically and expressly set forth in the Lease Agreement, and subject to the terms and conditions of the Lease Agreement, the Port Authority shall not be obligated to perform or furnish any services or utilities whatsoever in connection with this Agreement or the use and occupancy of any portion of the Premises hereunder including, without limitation, any obligation to provide or install or cause to be provided or installed any meters or sub-meters.
ARTICLE 4
FEES
4.1Rental 7
(a)[Rental provisions to be inserted. Rentals may be comprised of one of more of the following components:
(i)Base Rent A fixed fee rental charge per square foot at an amount to be determined (the “Base Rent”).
(ii)Revenue Share A revenue share based on a percentage (the “Revenue Share”) paid on Gross Receipts (as defined below).
(iii)Minimum Annual Guarantee A Minimum Annual Guarantee (“MAG”) based on a per passenger model or on a forecast of turnover.]
4.2Gross Receipts
(a)The Concessionaire shall furnish on or before the twentieth (20th) day of each month following the Commencement Date of the operation a sworn statement of Gross Receipts arising out of the operations of the Concessionaire, for the preceding month.
(b)“Gross Receipts” (or any other term referencing the gross revenues to be generated by a concession operation) means and include all monies, or other consideration, paid or payable to the Concessionaire for sales made or services rendered at or from the Premises, regardless of when or where the order therefor is received, and outside the Premises, if the order therefor is received at the Premises, and any other revenues of any type arising out of or in connection with concession operations at the Premises; provided that there shall be excluded from Gross Receipts the following: (a) any sums collected for any federal, state, county and municipal sales taxes, so-called luxury taxes, use taxes, consumer excise taxes, gross receipts taxes and other similar taxes now or hereafter imposed by law upon the sale of merchandise, food and beverage products or services which are separately stated to and paid by a customer and directly payable to the taxing authority by the Concessionaire, (b) any receipts of the Concessionaire which arise from its operations under any agreement with the Port Authority (other than the Consent to Sublease) relating to the Premises and which are subject to a percentage fee or percentage rental under that agreement, (c) receipts in the form of refunds from, or the value of merchandise (including food and beverage products), services, supplies or equipment returned to, vendors, shippers, suppliers or manufacturers, including volume discounts received from the Concessionaire’s suppliers or manufacturers (but specifically
7 Note to Form: Rental Provisions to be inserted.
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excluding retail display allowances or other promotional incentives received from vendors and suppliers, etc. all of which must be included within Gross Receipts), (d) gratuities for services performed by employees of the Concessionaire which are paid or given by the Concessionaire’s customers to such employees at or serving at the Premises, (e) the sale or transfer in bulk of the inventory of the Concessionaire to a purchaser of all or substantially all of the assets of the Concessionaire in a transaction not in the ordinary course of the Concessionaire’s business, (f) except with respect to proceeds received for business interruptions paid on a gross earnings business interruption insurance policy, proceeds from all other insurance received by the Concessionaire as a result of a loss or casualty, (g) rebates, exchanges or allowance made to customers of the Concessionaire at the Premises, (h) the exchange of merchandise between the stores or warehouses owned by the Concessionaire or an Affiliate of the Concessionaire, if any, where such exchanges of goods or merchandise are made solely for the convenient operation of the business of the Concessionaire and not for the purpose of consummating a sale which has theretofore been made at, in, from or upon the Premises or for the purpose of depriving the Port Authority of the benefit of the sale which otherwise would be made at, in, from or upon the Premises, (i) customary discounts given by the Concessionaire on sales of merchandise or services to its employees, if separately stated, and limited in amount to not more than [●] percent ([●]%) of Gross Receipts per monthly period, (j) mandatory discounts equal to [●] percent ([●]%) to be given by the Concessionaire pursuant to this Agreement on sales of merchandise or services to the Concessions Manager’s and the Port Authority’s employees, other Airport airline lessees’ employees and other individuals employed at the Airport, if separately stated, (k) income actually received by the Concessionaire from manufacturers of goods (cosmetics, perfume) displayed for sale at the Premises; provided that, in connection with such income: (i) the manufacturer specifically identifies the time period to which the income relates, (ii) reimbursement from the manufacturer to the Concessionaire occurs in connection with employees (1) who are on Concessionaire’s payroll for the operations permitted under this Agreement, and (2) who are on such payroll during the time period to which the reimbursement relates, (iii) the manufacturer and the Concessionaire have previously entered into a written agreement that sets forth the material terms of their arrangement with regard to the reimbursement that is the subject of this 4.2, and (iv) the Concessionaire provides to the Port Authority written documents and records substantiating the matters listed in sub-clauses (i) through (iii), (1) proceeds from the sale of gift certificates or like vouchers until such time as the gift certificates or like vouchers have been treated as a sale in or from the Premises pursuant to Concessionaire’s record keeping system, and (m) sale of trade fixtures, equipment or property which are not stock in trade and not in the ordinary course of business.
(c)For the purpose of determining the Revenue Share payable by the Concessionaire, Gross Receipts shall include all orders including, but not limited to, all orders by means of mail, catalogue, closed circuit television, electronic, telephonic, video, computer or other technology-based system, whether now existing or developed in the future, all deposits not refunded to or otherwise forfeited by customers, all orders taken in and from the Premises, whether or not such orders are filled elsewhere, the entire amount of the actual sales price and all other receipts for sales and services rendered, all insurance proceeds received due to loss of gross earnings paid under the Concessionaire’s business interruption insurance policy because of business interruptions, and earnings on any exchange or foreign currency transaction whether for an exchange service or for merchandise, products and/or services. A “sale” shall be deemed to have been consummated for purposes hereof, and the entire amount of the sales price shall be included in Gross Receipts and deemed received at the time of determination of the amount due for each transaction, whether for cash, credit or otherwise, and not at the time of billing or payment. Each sale made upon installment or credit shall be treated as a sale for the full price in the month during which such sale shall be made, irrespective of the time when any payment is received. No deduction from Gross Receipts shall be allowed for uncollected or uncollectible credit amounts or “bad” checks. Gross Receipts shall include retail display allowances, slotting fees, on-premises advertising and other promotional incentives. Gross Receipts shall include all such sales, revenues or receipts generated by the Concessionaire’s sub-operators/sub-subtenants, if any, or anyone else conducting business pursuant to an arrangement with the Concessionaire.
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(d)Without limiting the requirement for Port Authority approval, if the Concessionaire conducts any business or operations through the use of a contractor or other third party that is not a Port Authority permittee, and if the payments for any of such business or operations are made to such contractor rather than to the Concessionaire directly, said payments shall be deemed amounts, monies, revenues, receipts and income paid or payable to the Concessionaire for purposes of determining the Concessionaire’s Gross Receipts; provided that the foregoing shall not grant or be deemed to grant any right or permission to the Concessionaire to use an independent contractor or other third party to conduct any business or operations or perform any rights or obligations hereunder.
(e)For sales made in exchange for airline miles or awards (if and to the extent permitted by the Port Authority), or where other consideration is given, Gross Receipts shall include the full value of the goods sold or services provided as if cash was received. Moreover, the Concessionaire’s electronic cash control system shall include sales made in exchange for airline miles and awards.
4.3Additional Fees and Contribution
(a)The Concessionaire shall pay the Concessions Manager a marketing budget contribution which shall be calculated as 0.5% of the Concessionaire’s total Gross Receipts for a specified period.
4.4Disallowed Charges
This Agreement shall not, without the prior written consent of the Port Authority, include any rent or other charges payable by the Concessionaire with respect to the Concessions Manager’s (or the Master Lessee’s) costs incurred in connection with (i) repair, maintenance, lighting, waste management and removal and/or operation costs of any designated food court area utilized by passengers [except if the Concessionaire is a food-and-beverage concessionaire actually operating its business within the designated food court area (on a pass-through basis only with no added administrative or other up-charge); (ii) the receipt, storage, transportation or delivery of goods, inventory or equipment of any kind, except on Concessionaire (on a pass-through basis only with no added administrative or other up-charge) to receive, store, transport and deliver Concessionaire’s goods, inventory and equipment to and from loading docks and the concessionaires’ concession spaces; provided, however, that no rent, charges or other fees may be imposed on concessionaires for expenses relating to screening of goods and badging; (iii) marketing and advertising, except on Concessionaire (on a pass-through basis only with no added administrative or other up-charge) for charges relating to marketing the concessions program at the New Terminal Facilities (as defined in the Lease Agreement), including for directories and similar wayfinding devices; (iv) Utilities, except for Utilities provided by the Concessions Manager or the Master Lessee directly to Concessionaire (on a pass-through basis only with no added administrative or other up-charge) in lieu of Concessionaire making direct payments to utility providers, as more particularly described in Section 3.14 hereof; and (v) concession- management or related services, or the review of construction-related or refurbishment-related work to be performed by the Concessionaire.
ARTICLE 5
PAYMENTS
5.1Late Payments
(a)If the Concessionaire should fail to pay any amount required under this Agreement or Consent to Sublease when due to the Port Authority or the Concessions Manager, such amounts including, but not limited to, any payment of Base Rent, Revenue Share or any payment of utility or other charges, then, in such event, the Concessions Manager may (or, at the direction of the Port Authority shall) impose (by statement, bill or otherwise) a late charge (“Late Charge”) with respect to each such unpaid amount for each Late Charge Period herein below described during the entirety of which such amount remains unpaid, each such Late Charge not to exceed an amount equal to eight-tenths of one percent (0.8%) of such unpaid amount for each Late Charge Period.
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(b)There shall be twenty-four Late Charge Periods during each calendar year (“Late Charge Periods”); each Late Charge Period shall be for a period of at least fifteen (15) (but not less than thirteen (13)), calendar days, except one late charge period each Calendar Year may be for a period of less than fifteen (15) (but not less than thirteen (13)) calendar days.
(c)Each Late Charge shall be payable immediately upon demand made at any time therefor by the Concessions Manager or the Port Authority, as applicable.
(d)No acceptance by the Concessions Manager or the Port Authority, as applicable, of payment of any unpaid amount or of any unpaid Late Charge amount shall be deemed a waiver of the right of the Concessions Manager or the Port Authority, as applicable, to payment of any Late Charge or Late Charges payable under the provisions of this 5.1, with respect to such unpaid amount.
(e)Each Late Charge shall be and become additional rent, recoverable by the Concessions Manager in the same manner and with like remedies as if it were originally a part of the rental due under this Agreement.
(f)In the event that any Late Charge imposed pursuant to this 5.1 shall exceed a legal maximum applicable to such Late Charges then, in such event, each such Late Charge payable under this Agreement shall be payable instead at such legal maximum.
5.2Reporting Upon request by the Concessions Manager or the Port Authority, the Concessionaire shall furnish to the Port Authority the following:
(a)on or before the twentieth (20th) day of each month following the Commencement Date, a statement, certified by an authorized officer of the Concessionaire, of all Gross Receipts for the preceding month, broken down, if applicable, by Gross Receipts per category of goods/services;
(b)within thirty (30) days after the expiration or sooner termination of this Agreement, a statement of all Gross Receipts during (x) the Term or (y) the three (3) years directly preceding such expiration or sooner termination, whichever is shorter; and
(c)within one hundred twenty (120) days after the expiration or sooner termination of this Agreement, the statement referred to in the preceding subdivision (b) certified, at the Concessionaire’s expense, by a certified public accountant.
(d)to the extent applicable, within thirty (30) days of the end of each calendar year, the Concessionaire shall submit a report to the Concessions Manager reconciling estimated and actual Gross Receipts. A check for any underpayments must accompany the reconciliation.
5.3Security Deposit
(a)Security Deposit The Concessionaire shall, upon request of the Concessions Manager and if so requested as a condition to the effectiveness of the Concessionaire’s rights under 3.1, deposit with [the Concessions Manager], on or before the Effective Date, a security deposit (the “Security Deposit”) in the form of a bond, letter of credit from a bank reasonably acceptable to the Concessions Manager, cash or such other form of security as the Concessions Manager [acting at the direction of the Master Lessee]8 may reasonably deem acceptable, in an amount equal to the sum of two monthly payments of [Base Rent]9 due to the Concessions Manager from the Concessionaire, as determined pursuant to 4.1(a)(i); provided that in addition to the Security Deposit, the Concessionaire shall provide additional security in any amount and manner that may be required of the Concessionaire under the Lease Agreement.
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The Security Deposit shall be held in a segregated account of the Master Lessee or as otherwise permitted under the Financing Documents as security for the full and faithful performance of every provision of this Agreement to be performed by the Concessionaire. In the event that the Concessionaire obtains a letter of credit as its Security Deposit, the letter of credit shall be in the form attached hereto as Exhibit 6 (Form of Letter of Credit) or in another form mutually acceptable to the Master Lessee and the Concessionaire. The Concessionaire shall be obligated to maintain the Security Deposit in effect until the end of the Term.
(b)Use or Application of Security Deposit
(i)In the case where the Security Deposit is in the form of a letter of credit and the Concessions Manager does not receive a renewed letter of credit within thirty (30) days prior to the stated expiration date of such letter of credit or the Concessions Manager does not receive a letter of credit from a new issuer within ten (10) Business Days following the failure of the issuer to be reasonably acceptable to the Concessions Manager, the Concessions Manager may draw on the letter of credit and hold the cash proceeds from such letter(s) of credit as the Security Deposit until the Concessionaire provides a replacement Security Deposit in a form reasonably acceptable to the Concessions Manager, upon such replacement the Concessions Manager shall return such cash proceeds held by the Concessions Manager to the Concessionaire.
(ii)If the Concessionaire is in breach of its obligations under this Agreement, the Concessions Manager may use, apply or retain all or any part of the Security Deposit for the payment of all or part of any [Base Rent] or other fee or charge, or for the payment of any other amount which the Concessions Manager may spend or become obligated to spend by reason of the Concessionaire’s default or failure to compensate the Concessions Manager for any loss, cost or damage that the Concessions Manager may suffer by reason of such default; provided that the Concessions Manager has notified the Concessionaire of the default and the Concessionaire is not disputing in good faith the default or the application or retention of the Security Deposit in accordance with Article 9 of Schedule 2. If any portion of said Security Deposit is so used or applied, the Concessionaire shall, within ten (10) Business Days after written demand therefor, restore the Security Deposit to the amount required under this 5.3. The Concessions Manager shall be required to keep this Security Deposit separate from its general funds, and the Concessionaire shall not be entitled to interest on such Security Deposit.
(c)No Security Deposit Charges Neither the Concessions Manager nor the Master Lessee shall impose, directly or indirectly any charge on the Concessionaire in connection with security deposits or related payments made by either of such entities to the Port Authority under the Lease Agreement or in connection with the MCDA.
5.4Advance Payments. Except for security deposits and any other amounts deposited with the Concessions Manager in connection with the payment of insurance premiums, real property taxes and assessments and other similar charges and expenses, the Concessionaire shall not pay rent or other sums payable under this Agreement to the Concessions Manager for more than one (1) month in advance.
8 Note to Form: To be included if the ML is not the counter-party to this Agreement.
9 Note to Form: To be conformed with Section 4.1.
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5.5Payment Default by Concessions Manager Pursuant to the Lease Agreement. If the Concession Manager shall at any time be in default of its payment obligations under the MCDA or the Master Lessee shall at any time be in default of its payment obligations under the Lease Agreement, then subject to the rights of the Collateral Agent, the Concessionaire shall, on demand of the Port Authority pay directly to the Port Authority any rental, fee or other amount due to the Concessions Manager. No such payment shall relieve the Master Lessee from any obligation [of the Master Lessee] under the Lease Agreement, but all such payments shall be credited against the obligations of the Concessions Manager or of the Concessionaire as the Port Authority may determine for each payment or part thereof.
5.6No Port Authority Obligation. It is hereby acknowledged and agreed by the Master Lessee, the Concessions Manager and the Concessionaire that the Port Authority has no obligation under the Lease Agreement or otherwise to pay, subsidize or in any manner whatsoever finance, directly or indirectly, all or any portion of any amount of the Concessionaire’s unamortized capital investment in the subleased Premises. Any specific mention of or reference in this Agreement to the Port Authority in connection with any payment or other compensation to the Concessionaire, upon termination of this Agreement or the Lease Agreement with or without cause, or revocation of the Port Authority’s consent hereto, of any amount of the Concessionaire’s unamortized capital investment in the subleased premises or at the Premises shall not be or be deemed to create an obligation or inference of an obligation on the part of the Port Authority to either the Concessionaire, the Concessions Manager or any other Person to pay, subsidize or finance said unamortized capital investment.
5.7Payments Collection
(a)The Concessionaire shall make all payments payable under this Agreement, including without limitation, any Security Deposit, directly to the [Master Lessee/Terminal Operator] Pre-Completion Revenue Account or Post-Completion Revenue Account, as directed by the Concessions Manager as follows:
[●]10
(b)For purposes of Concession Manager’s books and records of account, the Concession Manager may apply any payment from the Concessionaire to any outstanding Rentals that are due and payable at such time.
5.8Port Authority Revocation of the Consent to Sublease
In the event the Port Authority exercises its right to revoke or terminate the Consent to Sublease for any reason other than “without cause”, the Concessionaire shall be obligated to pay to the Master Lessee and/or the Concession Manager an amount equal to all costs and expenses reasonably incurred by the Master Lessee and/or the Concession Manager in connection with such revocation or termination including, without limitation, an amount equal to all costs and expenses, if any, incurred by the Master Lessee and/or the Concession Manager arising out, relating to or in any way in connection with such revocation or termination including, without limitation, any legal proceedings initiated by the Port Authority, the Master Lessee and/or the Concession Manager to exercise its revocation rights, any re-entry, regaining or resumption of possession, collecting all amounts due to the Port Authority the Master Lessee and/or the Concession Manager, the cleaning, repair or restoration of any space which may be used and occupied under the Consent to Sublease (on failure of Concessionaire to have it cleaned, repaired or restored), preparing such space for use by a succeeding Concessionaire, the care and maintenance of such space during any period of non-use of the space, the foregoing to include, without limitation, personnel costs and legal fees and expenses (including, but not limited to, the cost to the Port Authority, the Master Lessee and/or the Concession Manager of in-house legal services), brokerage fees and commissions, repairing and altering the space and putting the space in order (such as but not limited to cleaning and decorating the same).
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In the event of the revocation of the Consent to Sublease hereunder as hereinabove provided, the [Concessions Manager]/[Terminal Operator] may immediately terminate this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Concessions Manager and the Concessionaire have executed these presents as of the date first above written.
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SCHEDULE 1
DEFINITIONS
10. |
Definitions Capitalized terms used but not defined in this Agreement shall have the meanings ascribed to such terms in the Lease Agreement. The following words, terms and phrases shall, for purposes of this Agreement, have the following meanings: |
“AAA” shall mean American Arbitration Association.
“Abandonment” shall mean closing the Premises to customers for two (2) or more consecutive days, unless such closing is permitted by the [Concessions Manager]/[Terminal Operator] with prior written consent or by other provisions of this Agreement.
“ACDBE” shall mean Airport Concession Disadvantaged Business Enterprise.
“Affiliate” shall mean, for any Person, any other Person that directly or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with such Person.
“Agreement” shall mean this Concession Sublease Agreement, as hereafter amended or supplemented from time to time in accordance with its terms.
“Airport” has the meaning ascribed thereto in the Recitals.
“Airport Operating Certificate” shall mean the airport operating certificate issued by the FAA pursuant to 14 C.F.R. Part 139 with respect to the Airport.
“Applicable Law” or “Applicable Laws” shall mean any statute, law, code, regulation, ordinance, rule, common law, judgment, judicial or administrative order, decree, directive or other requirement having the force of law or other governmental restriction (including those resulting from the initiative or referendum process) or any similar form of decision of or determination by any Governmental Authority (including any applicable regulation, order or statement of policy of the Administrator of the FAA or any other governmental officer or body having jurisdiction over the enforcement of the obligations of the Port Authority under federal law), including any Environmental Requirements, whether taking effect before or after the Effective Date, in each case, as amended, revised, supplemented or otherwise modified from time to time, in each case, applicable to the Terminal, the Airport, the Premises or any Person, as the context may require. For the avoidance of doubt, the term “Applicable Laws” includes FAA Grant Assurances, TSA-issued requirements, PFC assurances and decisions and the Airport Operating Certificate, but excludes the Applicable Standards.
“Applicable Standards” shall mean (i) the Rules and Regulations, (ii) Good Order Requirements, and (iii) all applicable codes, standards, regulations, manuals, references, guidelines, policies, specifications, handbooks and advisory circulars, including such codes, standards, regulations, manuals, references, guidelines, policies, specifications, handbooks, advisory circulars and similar documents referenced within the Lease Agreement and the Requirements and Provisions for Work issued or published by the Port Authority or a Governmental Authority and any similar applicable documents referenced in the Basic Lease, as amended, revised, supplemented or otherwise modified from time to time.
“Base Rent” has the meaning ascribed thereto in 4.1(a)(i).
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“Basic Lease” shall mean the Amended and Restated Agreement of Lease of the Municipal Air Terminals between The City of New York, as landlord, and the Port Authority, as tenant, dated as of November 24, 2004 and recorded in the office of the City Register of the City on December 3, 2004 under City Register File No. 2004000748687, as the same from time to time may have been or may be supplemented, amended and/or restated.
“Best Management Practices” shall mean the exercise of the degree of skill, diligence, prudence and foresight that would reasonably and ordinarily be expected from time to time from a skilled and experienced airport concessionaire, seeking in good faith to comply with its contractual obligations (including obligations to consistently operate and maintain World-Class terminal facilities), complying with Applicable Law, Governmental Approvals and Applicable Standards, and engaged in the same type of undertaking under similar circumstances and conditions. Best Management Practice is not static but rather will change over time; provided, however, that Best Management Practice with respect to any particular activity will be determined at the time when such particular activity is performed.
“Chief Engineer” shall mean the Chief Engineer of the Port Authority (or any successor officer serving the same or equivalent function, as notified in writing to the Master Lessee by the Port Authority and the Master Lessee shall be required to notify the Concessions Manager of the same).
“City Insureds” shall mean for any type of insurance required under this Agreement, the City, the City’s officials and employees (but only if the Port Authority’s officials and employees are likewise insured), and the New York City Economic Development Corporation, a local development corporation formed pursuant to Section 1411 of the Not-for-Profit Corporation Law of the State of New York, or such successor entity as may be designated by the City.
“Claim” shall mean any and all claims, disputes, allegations, causes of action, demands, suits or proceedings alleging or seeking Losses.
“Collateral Agent” shall mean an entity, designated by Lenders under and pursuant to the Financing Documents (as defined under the Lease Agreement), acting as collateral agent for the Lenders.
“Commencement Date” has the meaning ascribed thereto in 2.1(a).
“Common Use Space” has the meaning ascribed thereto in 3.3(a).
“Concessions Manager” has the meaning ascribed thereto in the Preamble.
“Concessions Manager Indemnified Party”11 shall mean each of the Concessions Manager[, the Master Lessee] or any successors as the Concessions Manager[Master Lessee] under this Agreement and their respective directors, officers, members, affiliates, agents, representatives, agents and consultants.
“Concession Sublessee” shall mean any providers of concession goods and services in accordance with Section 20(d) of the Lease Agreement or providers of other consumer services who are parties to a Sublease with the Concessions Manager.
“Concessionaire” has the meaning ascribed thereto in the Preamble.
11 Note to Form: To be updated if the Master Lessee is the counterparty.
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“Concessionaire Counterparty” has the meaning ascribed thereto in paragraph 3.14(5) of Schedule 3.
“Concessionaire Marks” has the meaning ascribed thereto in Article 8(1)(b)(vi) of Schedule 2.
“Concessionaire-Related Entity” shall mean (w) Concessionaire, (x) any Affiliate of the Concessionaire, (y) permitted sublessees of the Concessionaire and any Person for whom the Concessionaire may be legally or contractually responsible (but for the avoidance of doubt, excluding the Concessions Manager) and (z) the employees, agents, officers, directors, shareholders (but excluding shareholders of publicly traded companies), representatives, consultants, contractors, subcontractors of any tier, successors, assigns and invitees of the Concessionaire or any of the foregoing.
“Consent to Sublease” has the meaning ascribed thereto in the Recitals.
“Control”, “Controlled by” and “under common Control with” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Delegate” shall mean, with respect to any Person, any director, officer, employee, official, lender (or any agent or trustee acting on its behalf), partner, member, owner, agent, lawyer, accountant, auditor, professional advisor, consultant, engineer, contractor, other Person for whom such Person is responsible at law or other representative of such Person and any professional advisor, consultant or engineer designated by such Person as its “Delegate.” Any Affiliate of the Concessionaire is a Delegate of the Concessionaire.
“Design and Construction Requirements” shall mean the “Requirements & Provisions for Design & Construction Work – Technical Requirements,” set forth as Section B of the Requirements and Provisions for Work, as may be amended, revised, supplemented or otherwise modified from time to time by the Port Authority in accordance with the terms of the Lease Agreement.
“EDC” shall mean the New York City Economic Development Corporation, a local development corporation formed pursuant to Section 1411 of the Not-for-Profit Corporation Law of the State of New York, or such successor entity as may be designated by the City of New York under the Basic Lease.
“Effective Date” shall mean the date on which this Agreement is executed by the Concessionaire and the Concessions Manager and the conditions precedent hereto are satisfied.
“Environmental Requirement” shall mean in the singular and “Environmental Requirements” shall mean in the plural all common law and all past, present and future laws, statutes, enactments, resolutions, regulations, rules, directives, ordinances, codes, licenses, permits, orders, memoranda of understanding and memoranda of agreement, approvals, plans, authorizations, concessions, franchises, and similar requirements of all governmental agencies, departments, commissions, boards, bureaus or instrumentalities of the United States, states and political subdivisions thereof, all pollution prevention programs, “best management practices plans”, and other programs adopted and agreements made by the Port Authority (whether adopted or made with or without consideration or with or without compulsion), with any government agencies, departments, commissions, boards, bureaus or instrumentalities of the United States, states and political subdivisions thereof, and all judicial, administrative, voluntary and regulatory decrees, judgments, orders and agreements relating to the protection of human health or the environment, and in the event that there shall be more than one compliance standard, the standard for any of the foregoing to be that which requires the lowest level of a Hazardous Substance, the foregoing to include without limitation:
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(a)All requirements pertaining to reporting, licensing, permitting, investigation and remediation of emissions, discharges, releases or threatened releases of Hazardous Substances into the air, surface water, groundwater or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Substances, or the transfer of property on which Hazardous Substances exist;
(b)All requirements pertaining to the health and safety of employees or the public;
(c)The Atomic Energy Act of 1954, 42 U.S.C. Section 2011 et seq.; the Clean Water Act also known as the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section 136 et seq.; the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.; the Superfund Amendments and Reauthorization Act of 1986, Section 2701 et seq.; the Emergency Planning and Community Right to Know Act, 42 U.S.C. Section 11001 et seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101 et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Safe Drinking Water Act of 1974, 42 U.S.C. Sections 300f-300h-11 et seq.;
the New York State Environmental Conservation Law; the New York State Navigation Law; together, in each case, with any amendment thereto, and the regulations adopted, guidance, memoranda and publications promulgated thereunder and all substitutions thereof;
(d)The SPDES Permit; and
(e)NEPA and the NEPA Approval Documents (as defined in the Lease Agreement).
“Event of Default” has the meaning ascribed thereto in Article 7(1) of Schedule 2.
“Expiration Date” has the meaning ascribed thereto in 2.1(a).
“FAA Grant Assurances” shall mean certain obligations with respect to the maintenance and operation of the Airport facilities required by the FAA in connection with any FAA-administered airport financial assistance programs.
“Federal Aviation Administration” (sometimes abbreviated as “FAA”) shall mean the Federal Aviation Administration created under the Federal Aviation Act of 1958, as amended, or any successor agency thereto.
“General Provisions” shall mean the “Requirements & Provisions for Design & Construction Work – General Provisions,” set forth as Section A of the Requirements and Provisions for Work, as may be amended, revised, supplemented or otherwise modified from time to time by the Port Authority in accordance with the terms of the Lease Agreement.
“Good Order Requirements” shall mean actions instituted to preserve, maintain, improve or restore good order at the Airport which result in, or alleviate circumstances which derogate from, the Port Authority’s ability to (i) provide predictable, consistent or non-discriminatory service to Airport users or (ii) mitigate the risks that chaotic or uncontrolled situations arise on Airport premises which may, in the Port Authority’s sole and absolute discretion, lead to unsafe or insecure conditions.
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A change which provides only an economic advantage to the Port Authority and serves no public purpose, nor enhances the operations or efficiency of operating the Airport, whatsoever, will not be considered to require “good order” actions.
“Governmental Approval” shall mean all approvals, permits, permissions, consents, licenses, certificates (including sales tax exemption certificates), registrations, notices, exemptions, exceptions, waivers, filings and authorizations (whether statutory or otherwise), which are required from time to time under Applicable Law in order to authorize the Port Authority or the Concessions Manager to take actions required to complete obligations in connection with the Operations and Maintenance Work, or the lease and management of the Terminal as provided for under the Lease Agreement and that are issued or authorized by any Governmental Authority.
“Governmental Authority” shall mean federal, state, municipal and other governmental authorities, boards and agencies of any state, nation or government, including, without limitation, any court, and all agencies under the United States Departments of Interior, Commerce and Agriculture, the United States Food and Drug Administration and the United States Centers for Disease Control and Prevention, except that they shall not be construed to include The Port Authority of New York and New Jersey, as the lessor under the Lease Agreement.
“Gross Receipts” has the meaning ascribed thereto in 4.2(b).
“Handbook” shall mean the Port Authority Information Security Handbook, dated October 15, 2008, revised as of April 2, 2018, and as may be further amended.
“Hazardous Substance” shall mean and include in the singular and “Hazardous Substances” shall mean and include in the plural, any pollutant, contaminant, toxic or Hazardous Waste, dangerous substance, noxious substance, toxic substance, flammable, explosive or radioactive material, urea formaldehyde foam insulation, asbestos, polychlorinated biphenyls, chemicals known to cause cancer, endocrine disruption or reproductive toxicity, petroleum and petroleum products and other substances which have been or in the future shall be declared to be hazardous or toxic, or the removal, containment or restriction of which have been or in the future shall be required, or the manufacture, preparation, production, generation, use, maintenance, treatment, storage, transfer, handling or ownership of which have or in the future shall be restricted, prohibited, regulated or penalized by any federal, state, county, or municipal or other local statute or law now or at any time hereafter in effect as amended or supplemented and by the regulations adopted and publications promulgated pursuant thereto.
“Hazardous Waste” shall have the meaning given such term in Section 261.3 of 40 CFR Part 261, Subpart A.
“Indemnified Claim” has the meaning ascribed thereto in Article 6(2)(c) of Schedule 2.
“Late Charge” has the meaning ascribed thereto in 5.1(a).
“Late Charge Periods” has the meaning ascribed thereto in 5.1(b).
“Lenders” shall mean, collectively, each bank or financial institution, or any other Person that has provided a commitment to underwrite or provide [Master Lessee/Terminal Operator] debt or any guaranty (excluding any guaranty of [Master Lessee/Terminal Operator] debt provided by the [Master Lessee/Terminal Operator] or an Affiliate thereof) or credit enhancement in respect thereof, together with their respective successors and assigns, in connection with the design, construction, maintenance and operation of the Terminal.
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“Lease Agreement” has the meaning ascribed thereto in the Recitals.
“Loss” shall mean, with respect to any Person, any loss, liability, damage, penalty, charge or out-of-pocket and documented cost or expense actually suffered or incurred by such Person, but excluding any punitive, special, indirect and consequential damages and any contingent liability until such liability becomes actual.
“MAG” has the meaning ascribed thereto in 4.1(a)(iii).
“[Master Lessee] Debt” shall have the meaning given to the term “Lessee Debt” under the Lease Agreement.12
“Metro Area” has the meaning ascribed thereto in Section 3.8(a)(i).
“Minimum Wage Policy” has the meaning ascribed thereto in paragraph 3.14(1) of Schedule 3.
“New Agreement” has the meaning assigned in Section 83(g)(1) of the Lease Agreement, as it applies to this Agreement.
“New York State Liquor Authority” shall mean the Governmental Authority overseeing alcoholic beverage control.
“OFAC” has the meaning ascribed thereto in paragraph 19.2(17) of Schedule 3.
“Operations and Maintenance Term Requirements” shall mean Section C of the Requirements and Provisions for Work, as may be amended, revised, supplemented or otherwise modified from time to time by the Port Authority in accordance with the terms of the Lease Agreement.
“Party” or “Parties” shall mean the Concessions Manager and the Concessionaire and their permitted successors and assigns.
“Permitted Capital Costs” shall mean [●].
“Person” shall mean any individual (including the heirs, beneficiaries, executors, legal representatives or administrators thereof), corporation, partnership, joint venture, trust, limited liability company, limited partnership, joint stock company, unincorporated association or other entity or a Governmental Authority and their respective permitted successors and assigns.
“Phase A1 DBO” has the meaning ascribed thereto in the
“Port Authority” has the meaning ascribed thereto in the Recitals.
12 Note to Form: To be updated to Terminal Operator if the Master Lessee is the counterparty.
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“Port Authority Indemnified Parties” shall mean the City, EDC and the Port Authority, each Commissioner of the Port Authority and each officer, director, agent, employee and authorized representative of the City, EDC and the Port Authority.
“Predecessor Concession” has the meaning ascribed thereto in paragraph 3.15(5) of Schedule 3.
“Premises” has the meaning ascribed thereto in 3.1(a).
“Recognized Mortgagee” has the meaning assigned in Section 83(b)(1) of the Lease Agreement.
“Release” shall mean any pumping, pouring, venting, emitting, emptying, leakage, deposit, disposal, spill, discharge or other release.
“Requirements and Provisions for Work” shall mean a Reference Document consisting of (i) the General Provisions, (ii) the Design and Construction Requirements and (iii) the Operations and Maintenance Term Requirements.
“Reserved Uses” has the meaning assigned in Section 74 (Reserved Uses) of the Lease Agreement.
“Revenue Share” has the meaning ascribed thereto in Section 4.1(a)(ii).
“Rules and Regulations” shall mean, individually and collectively, applicable rules, regulations, policies, manuals, publications, standards, practices and guidelines issued or published by the Port Authority (including, without limitation, any bulletin, directive or other official instruction issued by the General Manager of the Airport or the Chief Security Officer of the Port Authority and any code of ethics established by the Port Authority applicable to lessees and/or sublessees, contractors, furnishers of services or other Persons at the Airport); in each case, as may be amended, revised, supplemented or otherwise modified from time to time pursuant to a Rules and Regulations Change.
“Rules and Regulations Change” shall mean (i) any new Rule and Regulation, (ii) any change to an existing Rule and Regulation (including by an amendment or supplement thereto) or (iii) a repeal of any existing Rule and Regulation; in each case that takes effect after the Effective Date; provided, that, (a) any new, modified or changed Rule and Regulation related to safety (including health and sanitation), security and/or Good Order Requirements, or required to comply with Applicable Laws, shall not be unjustly or unduly discriminatory and (b) any new, modified or changed Rule and Regulation with respect to any matter other than safety (including health and sanitation), security or Good Order Requirements, and not required to comply with Applicable Laws, shall be reasonable (taking into account the Port Authority’s role and obligations as an airport operator) and shall not be unjustly or unduly discriminatory.
“Security Deposit” has the meaning ascribed thereto 5.3.
“Service Charge” has the meaning ascribed thereto in paragraph 2(a)(ii) of Schedule 3.
“Street Prices” has the meaning ascribed thereto in 3.8(a).
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“Sublease” or “sublease” shall mean any sublease (including a sub-sublease or any further level of subletting) and any occupancy, license, franchise or concession agreement applicable to the Terminal or any portion thereof.
“Target Entity” has the meaning ascribed thereto in paragraph 3.14(2) of Schedule 3.
“TCAP Process” has the meaning ascribed thereto in the Lease.
“Term” has the meaning ascribed thereto in 2.1(a).
“Terminal” has the meaning ascribed thereto in the Recitals.
“Third-Party Claims” shall mean any Claim asserted against a Port Authority Indemnified Party by any Person who is not a party to this Agreement.
“Utilities” shall mean a privately, publicly, or cooperatively owned line, facility, or system (including conduits and concrete structures in which utility lines are contained) for transmitting or distributing communications, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with the highway drainage, or other similar commodities, including wireless telecommunications, television transmission signals and publicly owned fire and police signal systems. The necessary appurtenances to each Utility facility shall be considered part of such Utility.
11.Interpretation
(a)The terms “hereby,” “herein,” “hereof,” “hereunder” and any similar terms used in this Agreement refer to this Agreement.
(b)The term “including” means “including, without limitation.”
(c)The term “notice” means “written notice” unless specified otherwise.
(d)The term “discretion” means “sole and absolute discretion” unless specified otherwise.
(e)The term “incidental” or “necessary” as it relates to the concession operations shall be interpreted flexibly to include developments that have been generally accepted to have become part of similar operations as Best Management Practices.
(f)All references in this Agreement to Articles, Sections, subsections or Schedules, unless otherwise expressed or indicated, are to Articles, Sections, subsections or Schedules of this Agreement.
(g)Any headings preceding the text of Articles, Sections and subsections of this Agreement, and any table of contents or marginal notes appended to copies hereof, shall be solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect the meaning, construction or effect of this Agreement.
(h)Words importing the singular shall include the plural and vice versa. Words of the masculine gender shall be deemed to include correlative words of the feminine and neuter genders.
(i)All references to a number of days shall mean calendar days, unless otherwise expressly indicated.
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SCHEDULE 2
GENERAL CONDITIONS
ARTICLE 6
REMEDIES, INDEMNIFICATION AND LIABILITY
(1)Performance by the Concessions Manager upon Failure of the Concessionaire If the Concessionaire fails to perform, for a period of ten (10) Business Days after notice from the Concessions Manager, or fails to commence performance within ten (10) Business Days after such notice if complete performance is not reasonably possible within ten (10) Business Days, any obligation required by this Agreement, the Concessions Manager[,the Master Lessee] or the Port Authority may perform such obligation of the Concessionaire, and the Concessions Manager, the Master Lessee or the Port Authority, as applicable, may charge the Concessionaire for the reasonable cost to the Concessions Manager, the Master Lessee or the Port Authority, as applicable, of such performance, including any amounts owed to the Port Authority under the Lease Agreement in the case of performance by the Port Authority; provided that if the Concessionaire’s failure to perform any such obligation endangers the health or safety of Persons or the safety of operations at the Premises and the Concessions Manager so states in its notice to the Concessionaire, the Concessions Manager, the Master Lessee or the Port Authority may perform such obligation of the Concessionaire at any time after the giving of such notice, and the Concessions Manager, the Master Lessee or the Port Authority, as applicable, may charge the Concessionaire for its reasonable costs of such performance, including any amounts owed to the Port Authority under the Lease Agreement in the case of performance by the Port Authority.
(2)Indemnification
(a)The Concessionaire shall indemnify, save, hold harmless, and defend each Concessions Manager Indemnified Party, individually and collectively, from and against any claim, action, loss, damage, injury, liability, and cost and expense of whatsoever kind or nature (including reasonable attorney fees, disbursements, court costs, and expert fees) due to or caused by injury to persons, including death, or damage to property to the extent arising from the Concessionaire’s or any of the Concessionaire’s contractor’s, while such contractor is performing work on behalf of the Concessionaire, use and occupancy of or work at the Premises and actions undertaken pursuant to this Agreement, or a breach or default of any term of this Agreement by the Concessionaire, except to the extent such injury or damage is due to or caused by the gross negligence or willful misconduct of the Port Authority, the Concessions Manager, a third party not contractually related to the Concessionaire, or their respective officers, employees, agents, successors, or assigns, as applicable. With respect to its obligations under this Section 6.1, the Concessionaire, at its own expense, shall, at the request of a Concessions Manager Indemnified Party, defend any suit based upon any such claim using counsel approved in writing by the Concessions Manager Indemnified Party. In any such suit, the Concessionaire shall not agree to or accept any settlement without the consent of such Concessions Manager Indemnified Party, such consent not to be unreasonably withheld or delayed.
(b)Without limiting any other indemnity, hold harmless or defense obligations of the Concessionaire hereunder, or any rights and remedies available to the City Insureds at law or in equity, the Concessionaire shall indemnify the City Insureds with respect to all matters described in Section 31 of the Basic Lease that arise out of the Concessionaire’s operations at the Airport, or arise out of the acts or omissions of the Concessionaire’s officers, employees, agents, representatives, managers and members (if Concessionaire is a limited liability company), partners (if the Concessionaire is a limited partnership or a general partnership), contractors, customers, business visitors and guests at the Airport.
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(c)Without limiting any other indemnity, hold harmless or defense obligations of the Concessionaire hereunder, or any rights and remedies available to the Port Authority at law or in equity, the Concessionaire shall be obligated to indemnify and hold harmless the Concessions Manager Indemnified Parties and Port Authority Indemnified Parties from and against, and shall reimburse such Concessions Manager Indemnified Parties and Port Authority Indemnified Parties for such Concessions Manager Indemnified Parties and Port Authority Indemnified Parties’ Losses, incurred in connection with the defense of, all Third-Party Claims (including claims and demands of the City of New York for indemnification by the Port Authority arising by operation of law or through agreement of the Port Authority with the City of New York), including, but not limited to, Third-Party Claims for death or personal injuries, or for property damages, arising out of or in any way relating to: (i) any breach or default of any term or provision of this Agreement; (ii) the use, occupancy, operation, design, construction and financing of the Premises, and any and all activities in furtherance thereof, in each case, by the Concessionaire, or other Concessionaire-Related Entities, or others with the consent of the Concessionaire; (iii) any other acts or omissions of the Concessionaire or any other Concessionaire-Related Entities or their respective guests, invitees or other persons who are doing business with the Concessionaire, in each case, on the Premises; and (iv) any other acts or omissions of the Concessionaire or its officers, representatives, agents, contractors, employees, members (if the Concessionaire is a limited liability entity), managers (if the Concessionaire or Concessionaire-Related Entity is a limited liability entity), and partners (if the Concessionaire or Concessionaire-Related Entity is a partnership), customers, business visitors and guests on any other portion of the Airport in connection with this Agreement (any such Third-Party Claim, an “Indemnified Claim”); provided that in each case the foregoing indemnity for any Indemnified Claim shall not apply to Third-Party Claims arising from the gross negligence or willful misconduct of the Port Authority or any officer, employee or agent of the Port Authority; and provided further that the foregoing indemnity shall not apply to Losses suffered by the Concessionaire caused solely as a result of the negligence of the Port Authority, as finally determined pursuant to a non-appealable judgment of a court of competent jurisdiction (in the case of indemnification of Port Authority Indemnified Parties) or the Concessions Manager (in the case of the Concessions Manager Indemnified Parties).
(d)The Port Authority shall have the right, exercisable in its sole and absolute discretion, to either assume control of the defense, at Concessionaire’s sole expense, or to require the Concessionaire to defend, at the Concessionaire’s sole expense, with counsel satisfactory to the Port Authority Indemnified Party, any suit based upon any Indemnified Claim (even if such Indemnified Claim is groundless, false or fraudulent). If so directed by the Port Authority or the Concessions Manager, as applicable, the Concessionaire shall defend, at the Concessionaire’s sole expense, with counsel satisfactory to the Port Authority Indemnified Party or Concessions Manager Indemnified Party, as applicable, any suit based upon any Indemnified Claim (even if such Indemnified Claim is groundless, false or fraudulent). The Concessionaire, its contractors, and each of their respective subcontractors, subconsultants and insurers, shall not, without obtaining express advance written permission of the General Counsel of the Port Authority, raise any defense involving in any way the jurisdiction of any court, tribunal, agency, special district commission or other authority exercising judicial or regulatory functions over the person of the Port Authority, the immunity of the Port Authority, its directors, Commissioners, officers, agents or employees, their affiliates, successors and/or assigns, the governmental nature of the Port Authority, or the provisions of any statutes respecting suits against the Port Authority. The Port Authority or the Concessions Manager, as applicable, and the Concessionaire shall reasonably cooperate, and the Port Authority or the Concessions Manager, as applicable, shall endeavor to cause the applicable Port Authority Indemnified Party or the Concessions Manager Indemnified Party, as applicable, to reasonably cooperate, in the defense of any action or proceeding based upon any Indemnified Claim.
(e)Other than with respect to the Port Authority in accordance with the conditions set forth in the immediately following sentence, the Concessionaire shall not have the right to settle any such Indemnified Claim against a Port Authority Indemnified Party without the prior written consent of such Port Authority Indemnified Party.
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The Concessionaire shall not have the right to settle any such claim or demand against the Port Authority or other Port Authority Indemnified Party without the prior written consent of the Port Authority or such Port Authority Indemnified Party unless such settlement (i) does not require a payment from the Port Authority or such other relevant Port Authority Indemnified Party, (ii) will result in a full release of the Port Authority or such other relevant Port Authority Indemnified Party from any further liability with respect to such Indemnified Claim and (iii) does not require the Port Authority or such other Port Authority Indemnified Party to admit any fault or liability on the part of the Port Authority or such other Port Authority Indemnified Party.
(f)To the extent that any claim, action, loss, damage, injury, liability, and cost and expense of whatsoever kind or nature (including reasonable attorneys’ fees, disbursements, court costs, and expert fees) pursuant to this Section 6.1 arose during the term of this Agreement, the provisions of this Section 1.2 shall survive the expiration, termination or early cancellation of this Agreement, for a period of equal to the relevant statute of limitations period in the State of New York applicable to such claim, following the date of such expiration, termination or early cancellation of this Agreement.
(g)Any final judgment, after any applicable appeal process, rendered against any Party by a court of competent jurisdiction for any cause for which the other party is liable hereunder shall be conclusive against such party as to liability and amount upon the expiration of the time for appeal therefrom.
(3)Concessionaire Obligations to Cease Performance
(a)The Concessionaire acknowledges and agrees that the failure of the Concessionaire or any other Concessionaire-Related Entity to cease to perform the operations at the Airport authorized by this Agreement and the applicable Consent to Sublease (i.e., vacate the Premises) from the effective date of the expiration or termination of the Lease Agreement will or may cause the Concessions Manager[,the Master Lessee] and the Port Authority injury, damage or loss. The Concessionaire hereby assumes the risk of such injury, damage or loss and hereby agrees that it shall be responsible for the same and shall pay the Concessions Manager[,the Master Lessee] and the Port Authority for the same whether such are foreseen or unforeseen, special, direct, consequential or otherwise.
(b)The Concessionaire hereby expressly agrees to indemnify and hold the Concessions Manager Indemnified Parties and the Port Authority Indemnified Parties harmless against any such injury, damage or loss described in subdivision (a) above. The Concessionaire acknowledges that the Concessions Manager[,the Master Lessee] and the Port Authority reserve all of their respective legal and equitable rights and remedies in the event of such failure by the Concessionaire to cease performance of the authorized operations. The Concessionaire and the Concessions Manager each hereby acknowledges and agrees that, subject to the foregoing, all terms and provisions of the Consent to Sublease shall be and continue in full force and effect during any period following such expiration or termination of the Lease Agreement.
(c)If the Concessionaire is a joint venture or partnership, every obligation or undertaking stated to be fulfilled or performed by the Concessionaire pursuant to this Agreement or related Consent to Sublease shall be the joint and several obligation of each partner in the joint venture or partnership (other than any limited partner). 13
(4)Insurance
(a)The Concessionaire shall procure and maintain insurance satisfying the requirements set forth in the Consent to Sublease and, if the insurance requirements set forth in this Agreement are different than such requirements, then whichever constitutes the broader or more comprehensive insurance requirements shall control. Each of the Concessions Manager, [the Master Lessee,] the Port Authority and
13 Note to Form: Joint venture or partnership parties to execute sublease and consent.
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the City Insureds shall be named as additional insureds or loss payees, as applicable, under each policy of insurance procured by the Concessionaire pursuant to the terms of this Agreement and the applicable Consent to Sublease.
ARTICLE 7
DEFAULT AND TERMINATION
(1)Event of Default by the Concessionaire The occurrence of any one or more of the following events during the Term constitutes an “Event of Default” under this Agreement:
(a)the Concessionaire shall fail to pay to the Concessions Manager the Base Rent and any other monetary obligations owed to the Concessions Manager pursuant to this Agreement, when due, and such failure continues unremedied for a period of ten (10) business days following initial notice thereof from the Concessions Manager to the Concessionaire or (y) such shorter period as may be afforded to the Master Lessee under the Lease Agreement;
(b)the Concessionaire shall fail to comply with, perform or observe any obligation, covenant, agreement, term or condition in this Agreement or the requirements to be complied with and/or observed or performed by the Concessionaire and such failure continues unremedied for a period of (x) thirty (30) days following initial notice thereof (giving particulars of the failure in reasonable detail) from the Concessions Manager to the Concessionaire or (y) such shorter period as may be afforded to the Master Lessee under the Lease Agreement; provided, however, that with respect to clause (x) above, where compliance, performance or fulfillment of its obligation requires activity over a period of time, such failure shall not constitute an Event of Default if the Concessionaire, within [forty-five (45)] days following such initial notice, has demonstrated to the satisfaction of the Concessions Manager, acting reasonably, that (A) it is proceeding and will proceed with all due diligence to cure or cause to be cured such failure, (B) its actions can be reasonably expected to cure or cause to be cured such failure within a reasonable period of time acceptable to the Concessions Manager, acting reasonably, but in no event to exceed ninety (90) days in the aggregate, and (C) such failure is in fact cured within such period of time;
(c)any representation or warranty made in Section 2.4 of this Agreement shall be false in any material respect as of the Effective Date;
(d)the Concessionaire shall become insolvent or shall take the benefit of any present or future insolvency statute, or shall make a general assignment for the benefit of creditors, or file a voluntary petition in bankruptcy or a petition or answer seeking an arrangement or its reorganization or the readjustment of its indebtedness under the federal bankruptcy laws or under any other law or statute of the United States of America or of any state thereof, or consent to the appointment of a receiver, trustee, or liquidator of all or substantially all of its property or takes any action in furtherance of the foregoing;
(e)by order or decree of a court the Concessionaire shall be adjudged bankrupt or an order shall be made approving a petition filed by any of its creditors or by any of the stockholders (or partners, members of equityholders, as applicable) of the Concessionaire seeking its reorganization or the readjustment of its indebtedness under the federal bankruptcy laws or under any law or statute of the United States of America or of any state thereof; provided, however, that if any such judgment or order is stayed or vacated within sixty (60) days after the entry thereof, any notice of cancellation shall be and become null, void and of no effect;
(f)by, or pursuant to, or under authority of any legislative act, resolution or rule, or any order or decree of any court or Governmental Authority, agency or officer having jurisdiction, a receiver, trustee, or liquidator shall take possession or control of all or substantially all of the property of the Concessionaire, and such possession or control shall continue in effect for a period of sixty (60) days; or
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(g)Abandonment of the Premises;
(h)any lien is filed against the Premises because of any act or omissions of the Concessionaire, and shall not be discharged of record, or by bonding through an insurance company duly authorized to write such bonds in New York State, within (x) thirty (30) days after such filing or (y) such shorter period as may be afforded to the Concessions Manager under the Lease Agreement;
(i)failure by the Concessionaire to comply with Applicable Laws;
(j)the letting hereunder or the interest or estate of the Concessionaire under this Agreement shall be transferred to, pass to or devolve upon, by operation of law or otherwise, any other Person;
(k)to the extent the Concessionaire sells or causes the sale of alcoholic beverages at the Premises, the termination, revocation, suspension or expiration of the beverage license(s) issued to Concessionaire by the New York State Liquor Authority concerning alcoholic beverage consumption at the Premises; or
(l)to the extent the Concessionaire operates its business at the Premises as a franchisee under a franchise agreement with any third party, the revocation, termination or expiration of such franchise agreement or Concessionaire’s rights thereunder to operate at the Premises under the “[INSERT APPLICABLE MARK]” trade name.
Notwithstanding anything to the contrary provided herein, in no event shall the Concessionaire be entitled to any grace or cure period in excess of the period of time afforded to the [Concessions Manager/Master Lessee] under the Lease Agreement for the cure of a breach hereunder, it being acknowledged that under the Lease Agreement the [Concessions Manager/Master Lessee] shall be liable to the Port Authority for the acts and omissions of the Concessionaire under this Agreement.
(2)Remedies of the Concessions Manager Upon the occurrence and uncured continuance of an Event of Default, the Concessions Manager may, by notice to the Concessionaire, declare the Concessionaire to be in default and may do any or all of the following as the Concessions Manager shall determine in its discretion:
(a)bring a suit, action or proceeding (summary or otherwise) to collect, file a proof of claim in any Concessionaire bankruptcy or other insolvency proceeding for, or institute any other suit, action or proceeding (whether similar to any of the foregoing or not) before any court of competent jurisdiction for, any amounts required to be paid by the Concessionaire to the Concessions Manager pursuant to this Agreement, then due and owing to the Concessions Manager and for actual compensatory damages, and for all costs and expenses incurred by the Concessions Manager related thereto, including reasonable attorneys’ fees;
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(b)accelerate, declare due and payable, bring a suit, action or proceeding (summary or otherwise) to collect or recover, without duplication of amounts recovered, any and all payments of the Base Rent that would be due over the remainder of the Term as if all such amounts were payable to the Concessions Manager at such time, discounted to the present value thereof at the rate equal to the weighted average coupon applicable to [Concessions Manager Debt]; (c)terminate this Agreement, in which event the Concessionaire shall promptly vacate the Terminal and surrender the Premises to the Concessions Manager, and if the Concessionaire fails to so surrender and vacate the Premises, to the extent permitted under Applicable Law, the Concessions Manager may enter upon and take possession of the Premises by any lawful means and expel or remove the Concessionaire or any other Person occupying the same by, through or under the Concessionaire by any lawful means without liability for trespass or any claim for damages therefor; and the Concessionaire shall pay to the Concessions Manager on demand the amount of all loss and damage which the Concessions Manager may suffer by reason of such termination, whether through inability to relet (after commercially reasonable efforts to so relet) the Premises on terms equal to or better than the terms of this Agreement or otherwise, including (i) without duplication of any amounts, the loss of any and all the Base Rent that would be due over the remainder of the Term, discounted to the present value thereof at the rate equal to the weighted average coupon payable on the Master Lessee Debt that constitutes Permitted Capital Costs and (ii) all costs and expenses incurred by the Concessions Manager related to the foregoing, including reasonable attorneys’ fees;
(d)cure the Event of Default, in which case the Concessionaire shall reimburse the Concessions Manager for the costs and expenses incurred by the Concessions Manager to cure such Event of Default, including reasonable attorneys’ fees, upon demand, including an itemization in reasonable detail of such costs and expenses and accompanied by reasonable evidence of the payment of such costs and expenses, together with interest on such costs and expenses paid by the Concessions Manager at the rate per annum equal to the [prime rate plus 2%] or the highest rate permitted under Applicable Law (whichever is less) from the date the same were paid by the Concessions Manager to the date the same are repaid by the Concessionaire; and
(e)without duplication of any other remedy, exercise any other rights or remedies available to the Concessions Manager under this Agreement, under any other applicable agreement, under Applicable Law or otherwise, subject to the provisions of this Agreement limiting or restricting liability or remedies.
(3)Holdover Without in any way limiting the provisions set forth in the Sections of this Agreement entitled “Termination” and “Survival of the Obligations of the Concessionaire ”, respectively, in the event the Concessionaire remains in possession of the Premises after the expiration or termination of the term of the letting under this Agreement, as it may be extended from time to time, in addition to any damages to which the Concessions Manager may be entitled under this Agreement or other remedies the Concessions Manager may have by law or otherwise, the Concessionaire shall pay to the Concessions Manager a rental for the period commencing on the day immediately following the date of such expiration or the effective date of such termination and ending on the date that the Concessionaire shall surrender and completely vacate the Premises at an annual rate equal to twice the sum of (i) the annual rate of the basic rental in effect on the date of such expiration or termination, plus (ii) all items of additional rent and other periodic charges, including without limitation the percentage rental, payable with respect to the Premises by the Concessionaire at the annual rate in effect during the 365 day period immediately preceding such date. Nothing herein contained shall give, or be deemed to give, the Concessionaire any right to remain in possession of the Premises after the expiration or termination of the letting under this Agreement. The Concessionaire acknowledges that the failure of the Concessionaire to surrender, vacate and yield up the Premises to the Concessions Manager on the effective date of such expiration or termination will or may cause the Concessions Manager injury, damage or loss. The Concessionaire hereby assumes the risk of such injury, damage or loss and hereby agrees that it shall be responsible for the same and shall pay the Concessions Manager for the same whether such are foreseen or unforeseen, special, direct, consequential or otherwise and the Concessionaire hereby expressly agrees to indemnify and hold the Concessions Manager harmless against any such injury, damage or loss.
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(4)Survival of the Obligations of the Concessionaire In the event that the letting shall have been terminated in accordance with a notice of termination as provided in the Section of this Agreement entitled “Termination”, or the interest of the Concessionaire cancelled pursuant thereto, or in the event that the Concessions Manager has re-entered, regained or resumed possession of the Premises, all the obligations of the Concessionaire under this Agreement shall survive such termination or cancellation, re-entry, regaining or resumption of possession and shall remain in full force and effect for the full term of this Agreement, and the amount or amounts of damages or deficiency shall become due and payable to the Concessions Manager to the same extent, at the same time or times and in the same manner as if no termination, cancellation, re-entry, regaining or resumption of possession had taken place. The Concessions Manager may maintain separate actions each month to recover the damage or deficiency then due or at its option and at any time may sue to recover the full deficiency less the proper discount, for the entire unexpired term.
(5)No Waiver A failure by any Party to take any action with respect to any default or violation by the other of any of the terms, covenants or conditions of this Agreement shall not in any respect limit, prejudice, diminish or constitute a waiver of any rights of the party to act with respect to any prior, contemporaneous or subsequent violation or default. The acceptance by the Concessions Manager of payment of Base Rent, percentage rent or additional rent for any period or periods after a default or violation of any of the terms, conditions and covenants of this Agreement shall not constitute a waiver or diminution of, nor create any limitation upon any right of the Concessions Manager pursuant to this Agreement to terminate this Agreement for subsequent violation or default, or for continuation or repetition of the original violation or default.
(6)Condemnation
(a)In any action or proceeding instituted by any governmental agency or agencies for the taking for a public use of any interest in all or any part of the Premises, the Concessionaire shall not be entitled to assert any claim to any award or part thereof made or to be made therein, or to institute any action or proceeding or to assert any claim against such agency or agencies or against the Port Authority or the Concessions Manager, for or on account of any such taking, except the possible claim to an award for loss of trade fixtures furnished and installed by the Concessionaire (and for the purpose of such possible claim alone, title to such trade fixtures shall revert to the Concessionaire), it being understood and agreed between the Concessions Manager and the Concessionaire that, except for the possible claim to an award for loss of trade fixtures, the Concessions Manager or the Port Authority shall be entitled to all the compensation or awards made or to be made or paid for any such taking as described in the Lease Agreement, free of any claim or right of the Concessionaire and the possible claim to an award for loss of trade fixtures shall not diminish any claim, award, compensation or damages of or to the City or of or to the Port Authority on account of any condemnation and such condemnation claim is permitted by Section 23 of the Basic Lease or Section 19 of the Lease Agreement.
(b)In the event of a taking of the entire Premises by any governmental agency or agencies, then this Agreement shall be cancelled and the letting shall, as of the date possession is taken from the Concessions Manager by such agency or agencies, cease and determine in the same manner and with the same effect as if the term of the letting had on that date expired.
(c)In the event of a taking by any governmental agency or agencies of a part of the Premises, then the letting as to such part only shall, as of the date possession thereof is taken from the Concessions Manager by such agency or agencies, cease and determine, and the Base Rent thereafter to be paid by the Concessionaire to the Concessions Manager shall be abated based on the square footage of the Premises so taken from and after the date of such taking.
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ARTICLE 8
REPRESENTATIONS AND WARRANTIES
(1)Representations and Warranties
(a)Representations and Warranties of the Concessions Manager The Concessions Manager makes the following representations and warranties to the Concessionaire, and the Concessions Manager acknowledges that the Concessionaire is relying upon such representations and warranties in entering into this Agreement:
(i)Organization The Concessions Manager is duly organized, validly existing and in good standing under the laws of the place of its organization and is duly qualified to conduct business in the State of New York.
(ii)Power and Authority The Concessions Manager has the power and authority to enter into this Agreement and to do all acts and things and execute and deliver all other documents as are required hereunder to be done, observed or performed by it in accordance with the terms hereof.
(iii)Enforceability This Agreement has been duly authorized, executed and delivered by the Concessions Manager and constitutes a valid and legally binding obligation of the Concessions Manager, enforceable against it in accordance with the terms hereof, subject only to (A) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar requirements of law and judicial decisions now or hereafter in effect generally affecting the enforcement of creditors’ rights and remedies and (B) the effect of requirements of law governing equitable remedies and defenses and the discretion of any court of competent jurisdiction in awarding equitable remedies.
(iv)No Conflicts The execution and delivery of this Agreement by the Concessions Manager and the performance by the Concessions Manager of the terms, conditions and provisions hereof do not and will not contravene or violate or result in a breach of (with or without the giving of notice or lapse of time, or both) or acceleration of any material obligations of the Concessions Manager under (A) any Applicable Law, (B) any agreement, instrument or document to which the Concessions Manager is a party or by which it is bound or (C) the articles, bylaws or governing documents of the Concessions Manager.
(b)Representations and Warranties of the Concessionaire The Concessionaire makes the following representations and warranties to the Concessions Manager, and the Concessionaire acknowledges that the Concessions Manager is relying upon such representations and warranties in entering into this Agreement:
(i)Organization The Concessionaire is duly organized, validly existing and in good standing under the laws of the place of its organization and is duly qualified to conduct business in the State of New York.
(ii)Power and Authority The Concessionaire has the power and authority to enter into this Agreement and to do all acts and things and execute and deliver all other documents as are required hereunder to be done, observed or performed by it in accordance with the terms hereof, and this Agreement shall have been authorized to be executed and delivered by the Concessionaire in accordance with all Applicable Law, including with respect to any applicable bankruptcy, reorganization, insolvency, liquidation, or dissolution proceeding.
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(iii)Enforceability This Agreement has been duly authorized, executed and delivered by the Concessionaire and constitutes a valid and legally binding obligation of the Concessionaire, enforceable against it in accordance with the terms hereof, subject only to (A) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar requirements of law and judicial decisions now or hereafter in effect generally affecting the enforcement of creditors’ rights and remedies and (B) the effect of requirements of law governing equitable remedies and defenses and the discretion of any court of competent jurisdiction in awarding equitable remedies.
(iv)No Conflicts The execution and delivery of this Agreement by the Concessionaire and the performance by the Concessionaire of the terms, conditions and provisions hereof do not and will not contravene or violate or result in a breach of (with or without the giving of notice or lapse of time, or both) or acceleration of any material obligations of the Concessionaire under (A) any Applicable Law, (B) any agreement, instrument or document to which the Concessionaire is a party or by which it is bound or (C) the articles, bylaws or governing documents of the Concessionaire.
(v)No Relationships None of the Concessionaire, its officers, directors, agents, employees, or principals, or any of its Affiliates, subsidiaries, suppliers, sub-lessees or family members of the aforementioned individuals, has or has had within the past five (5) years, a direct or indirect business relationship with the Concessions Manager or its partners, shareholders, officers, directors, shareholder representatives, agents or employees.
(vi)Concessionaire Marks
(A)The Concessionaire (i) owns or has obtained, and will continue to own or maintain at all times during the Term, the necessary rights to use the trademarks, trade names, trade dress, service marks, copyrights, and other intellectual property used by the Concessionaire in connection with its business operations at the Premises, including but not limited to, the “[INSERT APPLICABLE MARK]”, (collectively, “Concessionaire Marks”); (ii) has the right to grant the license for the Concessionaire Marks, and (iii) none of the Concessionaire Marks infringe on any third party property rights. To the extent the Concessionaire operates its business at the Premises as a franchisee under a franchise agreement with any third party, the Concessionaire further represents, warrants, and covenants that (w) such franchise agreement is in full force and effect as of the date hereof, and will remain effective with respect to the Premises for the duration of the Term hereof, (x) Concessionaire shall notify the Concessions Manager and the Port Authority in writing immediately upon the revocation, termination or expiration of such franchise agreement or its rights thereunder to operate at the Premises under the “[INSERT APPLICABLE MARK]” trade name, (y) Concessionaire shall notify the Concessions Manager and the Port Authority promptly in writing upon receiving any notice from the franchisor to such franchise agreement alleging that Concessionaire is in breach of the such agreement, and (z) Concessionaire shall cease operating at the Premises as a “[INSERT APPLICABLE MARK]” franchisee immediately upon the termination of its authorization to do so.
(B)Upon request of the Concessions Manager or the Port Authority, Concessionaire shall promptly provide evidence reasonably satisfactory to the Concessions Manager or the Port Authority, as applicable, of the Concessionaire’s compliance with the foregoing representation, including but not limited to complete copies of any franchise agreements, intellectual property license agreements, or other related documents.
(C)The Master Lessee may list Concessionaire in one or more “Sublessee Directories” to be located within the Master Lessee’s leased premises for the convenience of passengers. The design, layout, location, size, and placement of any Sublessee Directory and Concessionaire’s listing therein shall be at the sole discretion of the Master Lessee.
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Concessionaire hereby grants the Master Lessee and the Port Authority a royalty-free, non-exclusive license to use Concessionaire Marks; provided that such use shall be limited to the following: (i) listing Concessionaire’s name on the Master Lessee’s website, and (ii) inclusion of Concessionaire’s name and logo in such Sublessee Directories or other marketing or promotional materials describing the Master Lessee’s leased premises and the Master Lessee or Port Authority generally.
(D)This Agreement shall control in the event of any ambiguity or conflict between the terms of this Agreement and the terms of the Concessionaire’s franchise or license agreement, as applicable. Accordingly, by way of example only, if the franchisor reserves any rights under the “[INSERT APPLICABLE MARK]” franchise agreement to directly, or through a successor franchisee, enter upon, occupy or operate at the Premises in the event of a breach under or termination of the franchise agreement, such reserved rights shall not be binding upon, or enforceable against, the Port Authority or the Master Lessee and neither party intends to grant the franchisor any third party beneficiary rights under this Agreement or any Port Authority consent to this Agreement. In the event of the revocation, termination or expiration of said franchise agreement or the Concessionaire’s rights thereunder to operate at the Premises under the “[INSERT APPLICABLE MARK]” trade name, the Concessionaire shall not be entitled to operate at the Premises as a franchisee of another franchisor or under a different “[INSERT APPLICABLE MARK]” without the prior written consent of the Port Authority.
(E)Failure to comply with this paragraph (vi) shall be an event of default under this Agreement and the Port Authority consent to Agreement, as applicable. Concessionaire’s obligations to indemnify and hold harmless the Master Lessee and the Port Authority Indemnified Parties and their respective Commissioners, directors, officers, employees, agents and representatives hereunder shall include any claims, damages, losses, risks, liabilities and expenses (including, without limitation, attorney’s fees and disbursements) arising out of, relating to, or in connection with Concessionaire’s breach of any of its covenants, representations, and warranties made under this paragraph (vi) including, but not limited to, any claim made by, through or under (i) a franchisor based on, relating to or arising out of Concessionaire operating at the Premises as a franchisee and (ii) a third party claiming rights by, through or under the Concessionaire including, without limitation, any alleged sub-franchisee or sub¬ licensee.
ARTICLE 9
DISPUTE RESOLUTION
(1)Scope Except for disputes concerning termination of this Agreement by any Party (which shall be resolved as provided in Article 10(7) of this Schedule), any dispute arising out of, relating to or in connection with this Agreement, including any question as to whether such dispute is subject to arbitration, shall be resolved as set forth in this Article 9.
(2)Notice If the Concessionaire receives a notice of a default, as described in Article 7(2) of this Schedule, and contests, disputes or challenges the propriety of such notice, the Concessionaire may, by notice to the Concessions Manager, initiate the dispute resolution procedure in this Article 9.
(3)Informal Dispute Resolution Procedures The Parties agree that, at all times, they will attempt in good faith to resolve all disputes that may arise under this Agreement. The Parties further agree that, upon receipt of notice of a dispute from a Party, the Parties will refer the dispute to the Designated Person of each Party. The Designated Persons shall negotiate in good faith to resolve the dispute, conferring as often as they deem reasonably necessary, and shall meet and in good faith furnish to each other the information pertinent to the dispute.
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Statements made by representatives of the Parties during the dispute resolution mechanisms set forth in this Article 9(3) and documents specifically created for such dispute resolution mechanisms shall be considered part of settlement negotiations and shall not be admissible in evidence by any proceeding without the mutual consent of the Parties.
(4)Arbitration If the procedures described in Article 9(3) of this Schedule do not result in resolution of the dispute within thirty (30) Business Days following a reference to mediation, the dispute shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the AAA (the “AAA Rules”). Any Party may initiate the arbitration, as provided in the AAA Rules. The place of arbitration shall be New York, New York, unless the Parties agree otherwise, and the language of the arbitration shall be English. The arbitral panel shall determine the rights and obligations of the Parties in accordance with the substantive laws of the State of New York and without regard to conflicts of laws principles thereof. Except as agreed by the Parties, the arbitral panel shall have no power to alter or modify any terms or provisions of this Agreement, or to render any award that, by its terms or effects, would alter or modify any term or provision of this Agreement. The arbitral panel shall be composed of three arbitrators, one to be selected by the Concessionaire, one to be selected by the Concessions Manager and the third (who shall act as chairman of the panel) to be selected by the two previously selected arbitrators. If the two previously-selected arbitrators cannot agree on the selection of the third arbitrator, the third arbitrator shall be selected in accordance with the AAA Rules. Once the arbitral panel has been composed, the arbitrators shall act as neutrals and not as Party arbitrators, and no Party shall engage in any ex parte communication with any member of the arbitral panel. Each Party shall bear its own attorney fees, expenses and costs. The award shall include interest at the Late Payment Interest Rate from the date of any breach or violation of this Agreement or the incurring of any obligation as determined in the arbitral award until paid in full. The award shall be in writing and state the reasons upon which it is based. The award shall be final and binding on the Parties. Judgment on the award may be entered by any court with competent jurisdiction. The Federal Arbitration Act, 9 U.S.C. § 1 et seq., shall govern any arbitration conducted pursuant to this Article 9(4).
(5)Provisional Remedies No Party shall be precluded from initiating a proceeding in a court of competent jurisdiction for the purpose of obtaining any emergency or provisional remedy to protect its rights that may be necessary and that is not otherwise available under this Agreement.
(6)Chief Engineer’s Jurisdiction
Notwithstanding any other provision in this Agreement to the contrary, any aspect of a dispute that involves a technical or engineering matter that is governed by or based upon the Applicable Standards or the Reference Documents, in each case, with respect to any improvements or replacement or renovation work performed by the Concessionaire on the Premises, shall be determined by the Chief Engineer in his or her sole discretion, and shall be conclusive, final and binding on the Parties.
(a)The effect of the Chief Engineer’s determination shall not be impaired or waived by any negotiations or settlement offers, whether or not the Chief Engineer participated therein himself or herself, or by any conclusions reached by the designated senior representatives, which conclusions are subject to review by the Chief Engineer, or by any termination or cancellation of this Agreement.
(b)All disputes of the nature described in Section 4.6 (Chief Engineer’s Jurisdiction) must be submitted in writing by the designated senior representatives of the Parties to the Chief Engineer for his or her decision, together with all evidence and other pertinent information in regard to such dispute, in order that a fair and impartial decision may be made.
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ARTICLE 10
MISCELLANEOUS
(1)No Partnership or Agency Nothing herein contained is intended or shall be construed to in any respect create or establish any partnership, joint venture or association or to make the Concessionaire the general representative or agent of the Concessions Manager for any purpose whatsoever.
(2)No Personal Liability No director, officer, employee, official, partner, member, owner, agent, advisor or other Person for whom either the Concessions Manager or the Concessionaire is responsible shall be charged personally by the other Party, or any director, officer, employee, official, partner, member, owner, agent, advisor or other Person for whom such Party is responsible, with any liability or expenses of defense or be held personally liable to them under any term or provision of this Agreement, or because of the Concessions Manager’s execution or attempted execution, or because of any breach hereof.
(3)Notice Except as otherwise expressly provided hereunder, all notices and other communications provided to under this Agreement shall be in writing and shall be mailed, electronically mailed (e-mailed), faxed or personally delivered to the Concessions Manager or the Concessionaire, to the person and at the address set forth at the foot of this Agreement next to such Party, or to such other Person or address as either the Concessions Manager or the Concessionaire may hereafter designate by notice to the other in accordance with this Article 10(3). Except as otherwise expressly provided hereunder, any notice or communication under this Agreement shall be deemed to have been given or made (a) if a messenger or courier service is used, when delivered to the addressee; (b) if sent by mail (certified or otherwise), five days after being deposited in the mails, postage prepaid and properly addressed; and (c) if sent by facsimile or electronic mail (e-mail), the earlier of (i) actual receipt by addressee and (ii) confirmation of receipt by the addressee. A copy of each notice sent by Concessions Manager or Concessionaire pursuant to this Agreement shall be delivered to the Port Authority in accordance with the notice provisions of the Consent to Sublease.
(4)Entire Agreement This Agreement, including the attached exhibits and endorsements, and the Consent to Sublease constitutes the entire agreement of the Concessions Manager and the Concessionaire on the subject matter hereof.
(5)Applicable Law THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT AND THE LETTING HEREUNDER SHALL BE GOVERNED BY, AND BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE, AND TO BE PERFORMED SOLELY WITHIN, SUCH STATE, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES.
(6)Waiver of Trial by Jury The Concessionaire waives its right to trial by jury in any summary proceeding or action that may hereafter be instituted by the Concessions Manager against the Concessionaire in respect of the Premises and/or in any action that may be brought by the Concessions Manager to recover rentals, fees, damages, or other sums due and owing under this Agreement. The Concessionaire specifically agrees that it shall not interpose any claims as counterclaims in any summary proceeding or in any action for Port Authority or the Concessions Manager unless such claims would be deemed waived if not so interposed.
(7)Consent to Service of Process and Jurisdiction All judicial proceedings brought against the Concessionaire or the Concessions Manager with respect to this Agreement may be brought in any court of competent jurisdiction in any New York State court or the U.S. District Court of New York sitting in the City and County of New York, and any appellate court from any thereof, for the settlement of any dispute in connection with this Agreement or any transaction contemplated hereby.
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By execution and delivery of this Agreement, the Concessionaire and the Concessions Manager each accepts, for itself and in connection with its properties, generally and unconditionally, the nonexclusive jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any final judgment rendered thereby from which no appeal has been taken or is available. The Concessions Manager and the Concessionaire each irrevocably designates and appoints the representative designated on the signature page hereto under the heading Agent for Service of Process as its agent for service of process, such service being hereby acknowledged by such representative to be effective and binding service in every respect. The agent may be changed only upon the giving of notice by the Concessionaire to the other Parties of the name and address of a new Agent for Service of Process that works within the geographical boundaries of the Commonwealth and is employed by the Concessions Manager or the Concessionaire, as the case may be. The Concessionaire and the Concessions Manager each irrevocably waives any objection (including any objection of the laying of venue or based on the grounds of forum non conveniens) which it may now or hereafter have to the bringing of any action or proceeding with respect to this Agreement in the jurisdiction set forth above. Nothing herein shall affect the right to serve process in any other manner permitted by law.
(8)Severability In the event any covenant, condition or provision herein contained is held to be invalid by any court of competent jurisdiction, the invalidity of any such covenant, condition or provision shall in no way affect any other covenant, condition or provision herein contained, provided, however, that the invalidity of any such covenant, condition or provision does not materially prejudice either party hereto in its respective rights and obligations contained in the valid covenants, conditions or provisions in this Agreement.
(9)Representatives The Concessions Manager and the Concessionaire shall each designate a representative who, except as otherwise provided hereunder, shall be authorized to act for the Concessions Manager and the Concessionaire, respectively, with respect to any actions to be taken by either of them under the terms of this Agreement. Any Party hereto may change its designated representative by subsequent notice to the other Party.
(10)Successors and Assigns All of the covenants, stipulations and agreements herein contained shall inure to the benefit of and be binding upon the successors and permitted assigns of the Parties hereto.
(11)Confidentiality The Parties shall, and shall cause their representatives to, keep confidential any information obtained from the other Parties or their representatives in connection with the negotiation and performance of this Agreement, except as is required by Applicable Law to be disclosed, but only to the extent necessary and only for the purposes required. Notwithstanding the foregoing, this Article 10(11) shall not apply to information that (a) is or becomes generally available to the public through no breach of such Party; (b) is or was received by such Party from third parties who are not participating in the negotiations; (c) is approved for release in writing by the owner of such confidential information; (d) is or was independently developed by such Party; or (e) is provided to the Port Authority and is subject to the Port Authority’s Public Records Access policy.
(12)No Third Party Beneficiaries Later Signatories
(a)This Agreement is for the sole benefit of the Parties hereto and their permitted assigns and nothing herein expressed or implied shall give or be construed to give to any Person or entity other than the Parties hereto and their assigns any legal or equitable rights hereunder; except as otherwise provided in this Section 5.12.
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(b)Subject to the rights of the Recognized Mortgagee, the Port Authority shall have the right, as a third-party beneficiary, throughout the term of this Agreement, to enforce directly against the Concessionaire any and all of the obligations of the Concessionaire under this Agreement.
(c)[The Master Lessee shall be deemed to be an intended and express third-party beneficiary of this Agreement. Subject to the rights of the Recognized Mortgagee and the Port Authority, the Master Lessee shall have the right, as a third-party beneficiary, throughout the term of this Agreement, to enforce directly against the Concessionaire the obligations of the Concessionaire under this Agreement. The rights of the Master Lessee under this Section 5.12 shall survive the expiration, revocation or earlier termination of this Agreement.]
(d)[Upon the termination of the MCDA, this Agreement shall automatically be assigned to the Master Lessee, including any license, right and/or title provided herein, without any further action on the part of the Master Lessee, effective as of such date, and from and after such date, references herein to “Concessions Manager” shall be deemed to refer to the Master Lessee.]
(13)Counterparts This Agreement may be executed in one or more counterparts.
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SCHEDULE 3
ADDITIONAL MANDATORY SUBLEASE PROVISIONS
12.Required Certifications and Covenants
The Concessionaire certifies that as of the Effective Date, and covenants that during the Term, none of (A) the Concessionaire, any of its Affiliates, any direct or indirect parent of the Concessionaire and/or wholly-owned subsidiary of the Concessionaire, (B) to the best knowledge of the Concessionaire, any beneficial owner of a ten percent (10%) or more interest in the Concessionaire and (C) to the best knowledge of the Concessionaire (with respect to clauses (a), (e), (f), (g), (h), (i), (j) and (k) below) each of the Concessionaire’s chief executive officer, chief operating officer, chief financial officer, treasurer, general counsel, president and any other similar executive management level officer:
(a) |
has been convicted of, plead guilty to, or is under indictment for, any felony[, other than as fully disclosed on Schedule [●] (Required Disclosures)]; |
(b) |
with respect to the Concessionaire only, has ever used a name, trade name or abbreviated name or federal taxpayer identification number other than such names or federal taxpayer identification number(s) reported to the Concessions Manager by the Concessionaire in connection with this Agreement[, other than as fully disclosed on Schedule [●] (Required Disclosures)]; |
(c) |
has been party to an agreement which was terminated by the Port Authority, for cause, prior to its expiration date (other than any such party with which the Port Authority has subsequently entered into another agreement relating to similar subject matter); |
(d) |
as of the Effective Date: (i) is in default beyond any applicable grace period under any agreement with the Port Authority, or (ii) has been, within the preceding five (5) years, in default beyond any applicable grace period under any agreement with the Port Authority[, other than as fully disclosed on Schedule [●] (Required Disclosures)]; |
(e) |
in connection with obtaining this Agreement or performing its rights or obligations pursuant to the terms hereof, has created any conflict of interest in violation of the Public Officers Law of the State of New York; |
(f) |
has been suspended, debarred, found not responsible or otherwise disqualified from entering into any contract with any Governmental Authority or been denied a government contract for failure to meet standards related to integrity[, other than as fully disclosed on Schedule [●] (Required Disclosures)]; |
(g) |
has had a contract terminated by any Governmental Authority for breach of contract or for any cause based in whole or in part on an indictment or conviction[, other than as fully disclosed on Schedule [●] (Required Disclosures)]; |
(h) |
has had any business or professional license suspended or revoked within the previous five (5) years[, other than as fully disclosed on Schedule [●] (Required Disclosures)]; |
(i) |
has had any sanction imposed as a result of a judicial or administrative proceeding related to fraud, extortion, bribery, bid rigging, embezzlement, misrepresentation or anti-trust |
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regardless of the dollar amount of the sanctions or the date of their imposition[, other than as fully disclosed on Schedule [●] (Required Disclosures)];
(j) |
has been, or is currently, the subject of a criminal investigation by any federal, state or local prosecuting or investigative agency and/or a civil antitrust investigation by any federal, state or local prosecuting or investigative agency (in each case as to which it has been made aware)[, other than as fully disclosed on Schedule [●] (Required Disclosures)]; |
(k) |
has been indicted or convicted of any crime in any jurisdiction[, other than as fully disclosed on Schedule [●] (Required Disclosures)]; and |
(l) |
is a person or entity with whom the Port Authority is restricted from doing business under the regulations of the Office of Foreign Assets Control (“OFAC”) of the United States Department of the Treasury (including, without limitation, those named on OFAC’s Specially Designated and Blocked Persons list) or under any statute, executive order or other regulation relating to national security or foreign policy (including, without limitation, (A) Executive Order 13224 of September 23, 2001, Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism, (B) the USA PATRIOT Act (including the anti-terrorism provisions thereof), (C) the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701, et seq., and (D) the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq.), or other governmental action related to national security, the violation of which would also constitute a violation of law. |
13.Concessionaire Books and Records
(a) |
The Concessionaire shall, and shall cause any Affiliate, if such Affiliate is a contractor or sub-sublessee or is otherwise operating business or operations at, through, or in any way connected with the Airport (with respect to such portions of their books and records that relate to the Airport) or if such Affiliate keeps and maintains records and books of account on behalf of the Concessionaire, to: |
(i)keep and maintain in English in an office or offices in the Port of New York District, full and complete records and books of account, including, for the avoidance of doubt, with respect to all matters which the Concessionaire is required to certify to the Port Authority or the Concessions Manager pursuant to this Agreement or Consent to Sublease, as applicable, in accordance with U.S.
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generally accepted accounting principles or any other generally accepted accounting standards that are acceptable to the Port Authority recording all transactions of the Concessionaire at, through, or in any way connected with its operations at the Premises or elsewhere at the Airport, and outside the Airport if the order therefor is received at the Airport, which records and books of account shall be kept at all times within the Port of New York District and shall separately state and identify each activity performed at the Airport and off-Airport if the order therefor is received at the Airport; provided that the Concessionaire (and, if applicable, its Affiliate) shall keep and maintain such books and records during the term of this Agreement and for seven (7) years after the expiration or earlier termination or surrender thereof, and for such further period with regard to records and books of account relating to causes of action or other claims which accrue prior to the expiration, revocation or termination of this Agreement or which are the subject of threatened or pending litigation, settlement or other legal process and until the applicable statute of limitations has expired or, in the case of litigation, settlement or other legal process, such litigation, settlement or legal process has been completely disposed of and all time limits for appeal have expired, whichever is longer; (ii)permit and/or cause to be permitted in ordinary business hours during the term of the subletting under this Agreement and for seven (7) years thereafter, and for the other time periods referenced in 2.1 above, as applicable, the examination and audit by both the officers, employees and representatives of both the Port Authority and those of the Concessions Manager of such records and books of account and also any records and books of account of any Affiliate if said Affiliate is a contractor or sub-sublessee or is otherwise operating business or operations at, through, or in any way connected with the Airport (with respect to such portions of their books and records that relate to the Airport) or keeps and maintains records and books of account on behalf of the Concessionaire (including without limitation all corporate records, agreements, source documents and books of account which the Port Authority in its sole and absolute discretion believes may be relevant for the identification, determination or calculation of all fees, rentals and other amounts paid or payable to the Port Authority whether directly or indirectly), within twenty (20) days following any request by the Port Authority from time to time and at any time to examine and audit said books and records; provided, in the event that, upon conducting an examination and audit as described in this paragraph 2(a)(ii), the Port Authority determines or estimates that unpaid fees, costs and/or other amounts thereon are due and payable to the Port Authority (whether directly or indirectly), in addition to any other amounts required by this paragraph 2(a)(ii) to be paid by the Concessionaire to the Port Authority, the Concessionaire shall pay to the Port Authority a service charge (“Service Charge”) in an amount equal to five percent (5%) of the amount determined by the Port Authority to be unpaid. Such Service Charge shall be payable by the Concessionaire upon demand therefor by the Port Authority and is exclusive of any and all other moneys due to the Port Authority by the Concessionaire under this Agreement or otherwise. No acceptance by the Port Authority of payment of any unpaid amount or of any unpaid Service Charge shall be deemed a waiver of the right of the Port Authority of payment of any Late Charge(s) or other Service Charge(s) payable under the provisions of this paragraph 2(a)(ii), with respect to such unpaid amount. Each such Service Charge shall be and become fees, recoverable by the Port Authority in the same manner and with like remedies as if it were originally a part of the fees to be paid. Nothing in this paragraph 2(a)(ii), is intended to, or shall be deemed to, affect, alter, modify or diminish in any way (x) any rights of the Port Authority under this Agreement, including, without limitation, the Port Authority’s rights to terminate this Agreement or (y) any obligations of the Concessionaire under this Agreement; and
(iii)in those situations where the books and records have been generated from electronic data, provide, or cause to be provided, to the Port Authority’s representative extracts of data files in a computer readable format on data disks, E-mail with attached files or alternative computer data exchange formats suitable for the Port Authority in its sole and absolute discretion.
(b) |
The Concessionaire understands that compliance by it with paragraph 9.1(1) above are of the utmost importance to the Port Authority in having entered into the arrangement under the Consent to Sublease and in the event of the failure of the Concessionaire to maintain, keep within the Port of New York District or make available for examination and audit the Concessionaire’s books and records of account in the manner and at the times or locations as provided in this provision, then, in addition to all and without limiting any other rights and remedies of the Port Authority, the Port Authority may: |
(iv)estimate the amount or Port Authority share of moneys due and payable to it under this Agreement from the Concessionaire on the basis that the Port Authority, in its sole and absolute discretion, shall deem appropriate, and the Concessionaire shall pay such amount to the Port Authority when billed;
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(v)if any such books and records have been maintained outside the Port of New York District, but within the continental United States of America, then the Port Authority in its sole and absolute discretion may (1) require such records to be produced within the Port of New York District within thirty (30) days of written request for same or (2) if the Concessionaire (or its Affiliate) fails to provide all of such books and records within the time period stated above (time being of the essence in connection with such time period and, in addition, such provided books and records being to the complete and total satisfaction of the Port Authority) the Port Authority may examine such records at the location at which they have been maintained and in such event the Concessionaire (or its Affiliate) shall pay to the Port Authority when billed all actual travel costs and related expenses, as determined by the Port Authority for Port Authority auditors and other representatives, employees and officers in connection with such examination and audit; and
(vi)if any such books and records have been maintained outside the continental United States of America then, in addition to the costs specified in paragraph (B) above, the Concessionaire shall pay to the Port Authority when billed all other costs of the examination and audit of such records including, without limitation, salaries, benefits, travel costs and related expenses, overhead costs and fees and charges of third party auditors retained by the Port Authority for the purpose of conducting such audit and examination.
The foregoing auditing costs, expenses and amounts set forth in Section 5.3(a)(iv)(B) and Section 5.3(a)(iv)(C) above shall be deemed fees/rent and charges under this Agreement and the Consent to Sublease, as applicable, payable to the Port Authority with the same force and effect as all other fees/rent and charges thereunder.
14.Observance and Compliance with Laws
The Concessionaire shall, and shall cause its Delegates and licensees to, observe and comply with, and pay all taxes and obtain all licenses, permits, certificates and other authorizations required by, all Applicable Laws in connection with their operations or activities hereunder to the extent such Applicable Laws apply to the Concessionaire and its operations at the Premises and within the Terminal. The Concessionaire shall, and shall cause its Delegates and licensees to, observe faithfully, and comply strictly with the Applicable Standards and rules and regulations governing the use and occupancy and conduct and operations of the Concessionaire at the Premises as the Concessions Manager and/or the Master Lessee may adopt, from time to time.
15.Affirmative Action
The Concessionaire covenants and agrees that it will undertake an affirmative action program as required by 14 C.F.R. Part 152, Subpart E, to insure that no person shall on the grounds of race, color, national origin, creed or religion, sex, handicap or disability or age be excluded from participating in any employment activities covered in 14 C.F.R. Part 152, Subpart E and shall assure that no person shall be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by such Subpart E. The Concessionaire covenants and agrees that it will require that its covered suborganizations provide assurances to the Concessionaire that they similarly will undertake affirmative action programs and that they will require assurances from the suborganizations, as required by 14 C.F.R. Part 152, Subpart E, to the same effect.
16.Non-Discrimination
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The Concessionaire, for itself, its successors in interest, and assigns, as a part of the consideration hereof, covenants and agrees as a covenant running with the land that (i) no person on the ground of race, color, national origin, creed or religion, sex, handicap or disability or age shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of the Premises, (ii) in the construction of any improvements on, over, or under the Premises and furnishing of services thereon, no person on the ground of race, color, national origin, creed or religion, sex, handicap or disability or age shall be excluded from participation in, denied the benefits of, or otherwise be subject to discrimination, (iii) the Concessionaire shall use the 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, Non-discrimination 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, and any other present or future laws, rules, regulations, orders or directions of the United States of America with respect thereto which from time to time may be applicable to the Concessionaire’s operations at the Airport, whether by reason of agreement between the Port Authority and the United States of America or otherwise. The Port Authority shall have the right to take such action as the United States of America may direct to enforce such covenant.
17.Non-Discrimination in Furnishing Services
The Concessionaire shall not unjustly discriminate among Concessionaire sub-lessees or refuse to offer any classification, status, or terms of an agreement, to any Concessionaire sub-lessee in the Premises that assumes obligations substantially similar to those already imposed on any other similarly situated Concessionaire sub-lessees, as applicable, in the Premises having such classification status or terms.
18.Other Agreements
In addition to and without limiting any terms and provisions of this Agreement:
(a) |
the Concessionaire agrees to comply with all applicable federal, state and local laws, ordinances, rules, regulations, and orders that pertain to equal employment opportunity, affirmative action, and non-discrimination in employment; |
(b) |
at the request of either the Port Authority or the Concessions Manager, the Concessionaire, shall request any employment agency, labor union or authorized representative of workers with which it has a collective bargaining or other agreement or understanding and which is involved in the performance of this Agreement to furnish a written statement that such employment agency, labor union or representative shall not discriminate because of race, color, national origin, creed/religion, sex, age or handicap/disability, and that such union or representative will cooperate in the implementation of the Concessionaire’s obligations hereunder; and |
(c) |
the Concessionaire will state, in all solicitations or advertisements for employees placed by or on behalf of the Concessionaire in the performance of this Agreement that all qualified applicants will be afforded equal employment opportunity without discrimination because of race, color, national origin, creed/religion, sex, age or handicap/disability. |
19.FAA Grants
(a) |
The Port Authority has applied for and received a grant or grants of money from the Administrator of the FAA pursuant to the Airport and Airways Development Act of 1970, as the same has been and may hereafter be amended and supplemented or superseded by similar federal legislation, and under prior federal statutes which said Act superseded and the Port Authority may in the future apply for and receive further such grants, and the Port Authority has applied for and received permission to collect and use Passenger Facility Charges pursuant to An Act To Revise, Codify, And Enact Without Substantive Change |
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Certain General And Permanent Laws, Related To Transportation, Pub: Law 103-272, 108 Stat 745 (July 5, 1994), as the same has been and may hereafter be amended and supplemented or superseded by similar federal legislation, and under prior federal statutes which said Act superseded, and the Port Authority may in the future apply for and receive further permission to collect such Passenger Facility Charges. In connection therewith the Port Authority has undertaken, and may in the future undertake, certain obligations respecting its operation of the Airport and the activities of its contractors, lessees and permittees thereon. The performance by the Concessionaire of the covenants, promises and obligations contained in this Agreement is therefore a special consideration and inducement for the Port Authority to enter into and execute the Consent to Sublease, and the Concessionaire further covenants and agrees that if the Administrator of the FAA or any other governmental officer or body having jurisdiction over the enforcement of the obligations of the Port Authority in connection with the federal airport aid, shall make any orders or recommendations or suggestions in written form respecting the performance by the Concessionaire of such covenants, promises and obligations, the Concessionaire will promptly comply therewith, at the Concessionaire’s cost and expense, at the time or times when and to the extent that the Port Authority may direct.
(b) |
The Concessionaire covenants and agrees that (A) the Concessionaire, at its own cost and expense, shall comply with any direction issued by the Port Authority (including any bulletin, directive or other official instruction issued by the General Manager of the Airport) to comply with Applicable Law or Applicable Standards, or with any applicable regulation, order, statement of policy, advisory circular, or recommendation or suggestion in writing, of the Administrator of the FAA or any other governmental officer or body having jurisdiction over the enforcement of the obligations of the Port Authority under federal law, or arising from the applications described in this paragraph 19; provided that (1) for the purpose of this paragraph 19, “governmental officer or body” shall not be construed to refer to or include the Port Authority, (2) the direction of the Port Authority made under this paragraph 19 shall include a direction to the Concessionaire to take an action, to not take an action, or to cease an action, including, but not limited to the granting of a contract or permission or directing another person to take an action, refrain from taking an action, or cease an action, (3) the Port Authority’s interpretation of any such Applicable Law, order, statement of policy, recommendation or suggestion, including those of a general nature which do not refer specifically to the Airport or any specific person, shall be final and determinative; and (4) the Port Authority may require any permittee, Concessionaire, subtenant, licensee, contractor or supplier of the Concessionaire who acts for or on behalf of the Concessionaire in or regarding the Premises to perform the obligations imposed by, and be subject to, the terms of, this paragraph 19, as if such permittee, Concessionaire, subtenant, licensee, contractor or supplier were the Concessionaire with respect to the obligations of the Concessionaire set forth in this paragraph 19. |
(c) |
The Concessionaire agrees to include the statements in this paragraph 8 in any subsequent concession agreements that it enters and cause those businesses similarly to include the statements in further agreements, the foregoing not to be construed as approval by the Concessions Manager or the Port Authority of any such agreements as required. |
20.Minimum Wage Requirements
(a) |
The Port Authority has adopted a minimum wage policy (“Minimum Wage Policy”) for workers performing under non-trade labor service contracts at all Port Authority facilities. |
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The Port Authority has also adopted a rule for implementing the Minimum Wage Policy. The Concessionaire has reviewed the Minimum Wage Policy and the implementing rule and agrees to comply with the Minimum Wage Policy and implementing rule, as the same may be amended. The Port Authority reserves the right to amend the Minimum Wage Policy and rule from time to time.
(b) |
A failure to comply with the obligations set forth under this paragraph 9 shall constitute a breach of this Agreement and, accordingly, the Port Authority shall be entitled to all rights and remedies available to it under law, equity or otherwise in the event of such breach; provided that a failure of the Concessionaire or any Concessionaire Counterparty to comply with the Minimum Wage Policy (or any future amendment or modification to the Minimum Wage Policy), or any enforcement thereof with respect to a particular type of employment matter, shall not constitute a breach of this Agreement to the extent that the Port Authority has imposed the Minimum Wage Policy (or such amendment or modification) on, or enforced the Minimum Wage Policy (or such amendment or modification) against, the Concessionaire or such Concessionaire Counterparty, as the case may be (the “Target Entity”) in a manner that is inconsistent with the manner in which the Minimum Wage Policy (or such amendment or modification) is imposed on, or enforced against, other entities in the same category of business as the Target Entity, with respect to the same type of employment matter, at the Airport and the other airports for which the Port Authority is the airport operator. |
(c) |
Further, the Concessionaire acknowledges that the Port Authority has audit rights granted with respect to the Concessionaire’s operations at the Airport and that such audit rights extend to the Concessionaire’s compliance with its obligations hereunder concerning the Minimum Wage Policy and the implementing rule. |
(d) |
The Concessionaire shall provide to the Port Authority an annual statement, signed by a responsible officer or authorized representative of the Concessionaire, certifying as to its own compliance with the Minimum Wage Policy and the implementing rules. |
(e) |
The Concessionaire further agrees that it shall include in any agreements entered into by the Concessionaire related to Covered Services (as defined in the Minimum Wage Policy), including, without limitation, subcontracts and subleases (but excluding agreements with government agencies or authorities) a clause which states that the party providing such services (the “Concessionaire Counterparty”) to the Concessionaire (i) has reviewed the Minimum Wage Policy and the implementing rule, (ii) agrees to comply with them, as the same may be amended from time to time, (iii) agrees to provide the Concessionaire and the Port Authority an annual statement, signed by a responsible officer of the Concessionaire Counterparty, certifying as to its own compliance with the obligations described in this paragraph, and (iv) acknowledges and agrees that the Port Authority shall be a third party beneficiary of such clause entitled to all rights and remedies available to it under law, equity or otherwise in the event of a breach of such clause by the Concessionaire Counterparty. For the avoidance of doubt, a breach by the Concessionaire shall be deemed to have occurred regardless of whether the Concessionaire directly fails to comply with the Minimum Wage Policy or the related implementing rule or whether the Concessionaire’s contractor/subcontractor, licensee/sublicensee, tenant/subtenant, etc., as applicable, fails to comply with the Minimum Wage Policy or related implementing rule. |
(f) |
At the request of the Port Authority, the Concessionaire further agrees that it shall terminate any agreements entered into by the Concessionaire related to Covered Services (as defined |
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in the Minimum Wage Policy), including, without limitation, subcontracts and subleases (but excluding agreements with government agencies or authorities), with any Concessionaire Counterparty which fails to comply with its contractual obligations related to the Minimum Wage Policy, as set forth in the foregoing paragraph (e).
21.Labor Harmony
(a) |
In connection with its operations at the Premises under this Agreement, the Concessionaire shall serve the public interest by promoting labor harmony, it being acknowledged that strikes, picketing, or boycotts may disrupt the efficient operation of the Premises. |
(b) |
The Concessionaire recognizes the essential benefit to have continued and full operation of the Airport as a whole and the Terminal as a transportation center. The Concessionaire shall give notice to the Port Authority (to be followed by written notice and reports) of any and all impending or existing labor-related disruptions and the progress thereof as soon as practicable (but in no event later than five (5) days after the Concessionaire becomes aware of such impending or existing labor-related disruptions). |
(c) |
If any type of strike, boycott, picketing or other labor activity is directed against the Concessionaire at the Airport or against any operations pursuant to this Agreement, which, in the opinion of the Port Authority, adversely affects or is likely to adversely affect the operation of the Airport, any portion of the Premises under the Lease Agreement or the relevant concession space, or the operations of other permittees, lessees or licensees thereat, or presents a danger to the health and safety of users of the Airport or the Premises under the Lease Agreement, including persons employed thereat or members of the public, whether or not the same is due to the fault of the Concessionaire, and whether caused by the employees of the Concessionaire or by others, the Port Authority shall have the right, at any time during the continuance thereof to take all legal remedies available to it to end or arrange for the cessation of any such strike, boycott, picketing or other labor activity. |
(d) |
Labor Peace Agreement. The Concessionaire represents that, prior to or upon entering into this Agreement, it has delivered to the Port Authority evidence of a signed (x) labor peace agreement in the form attached hereto as Exhibit 7 (Evidence of Signed Labor Peace Agreement) or (y) a written notification from an officer of the Concessionaire on the Concessionaire’s letterhead in the form attached hereto as Exhibit 8 (Letter in Lieu of Exhibit 7) that no labor organization (as defined by 29 U.S.C. Section 152(3)) has sought to represent the employees of the Concessionaire at the Airport or of the date of such notification. |
(e) |
Employee Retention. If the Concessionaire’s concession at the Premises is of the same type (i.e., food, retail, news/gifts or duty-free concession) as that of the immediately preceding concession operator at the Premises (the “Predecessor Concession”), the Concessionaire agrees to offer continued employment for a minimum period of ninety (90) days, unless there is just cause to terminate employment sooner, to employees of the Predecessor Concession who have been or will be displaced by cessation of the operations of the Predecessor Concession and who wish to work for the Concessionaire at the Premises. The foregoing requirement shall be subject to the Concessionaire’s commercially reasonable determination that fewer employees are required at the Premises than were required by the Predecessor Concession; provided, however, that the Concessionaire shall retain such staff as is deemed commercially reasonable on the basis of seniority with the Predecessor Concession at the Premises. |
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(f) |
The Port Authority shall have the right to demand from the Concessionaire, upon reasonable notice, documentation of the name, date of hire, and employment occupation classification of all employees covered by this provision. In the event the Concessionaire fails to comply with this provision, the Port Authority shall have the right at any time during the continuance thereof to take such actions as the Port Authority may deem appropriate, including, without limitation, revocation of its consent to this Agreement and, accordingly, revocation of this Agreement. |
Notwithstanding anything to the contrary in this Agreement, the obligations set forth under this paragraph 21 shall only apply if the Concessionaire employees ten (10) or more persons at the Premises.
22.Attornment
On the termination of the Lease Agreement prior to the Expiration Date, the Concessionaire shall attorn to, or shall enter into a direct lease with, (i) the Recognized Mortgagee under the Lease Agreement (or any designee or nominee of the Recognized Mortgagee), at the Recognized Mortgagee’s (or designee’s or nominee’s) option, in connection with any assignment or foreclosure of the Lease Agreement, or (ii) subject to the rights of the Recognized Mortgagee under Section 83 (Project Financing) of the Lease Agreement, the Port Authority, at the Port Authority’s option, under other circumstances, in each case, for the balance of the unexpired term of this Agreement. For the avoidance of doubt, nothing contained herein shall be deemed to require the Port Authority to enter into a direct contractual arrangement with the Concessionaire. The Concessions Manager and the Concessionaire, on termination of the Basic Lease will, at the option of the City of New York, enter into a direct consent with the City of New York on terms identical with the Consent to Sublease executed with the Port Authority. In the event the Lease Agreement is terminated prior to the expiration date, the Concessions Manager will return to the Concessionaire any undrawn portion of the security deposit then being held by the Concessions Manager and any remaining portion of such security deposit shall not be enforceable by the Concessions Manager except to cure any ongoing defaults by the Concessionaire.
23.No Port Authority Obligation
The Concessionaire agrees that neither any assignment by the Concessions Manager to the Port Authority of its interest under this Agreement, nor the application or payment of security deposits to or for the benefit of the Port Authority, nor any direction to the Concessionaire to pay rent or other amounts to the Port Authority, nor the payment thereof to and acceptance thereof by the Port Authority shall constitute or denote an assumption by the Port Authority of any of the obligations of the Concessions Manager under this Agreement.
24.Information Security Handbook
The Concessionaire may require access to Port Authority information considered Protected Information (as defined in the Handbook). The Handbook and its requirements are hereby incorporated into this Agreement and will govern the possession, distribution and use of Protected Information.
25.Successors and Assigns
26. |
The Concessionaire shall not sub-sublease, sub-sublicense or assign all or any portion of the Premises or any of its rights under this Agreement, directly or indirectly by operation of law or otherwise, or enter into any amendment or modification to or extension of an existing sub-sublease |
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or sub-sublicense, without the prior written consent of the Port Authority and the Concessions Manager (it being understood and agreed that in no event shall any sub-sublease, sub-user agreement or sub-sublicense ever be deemed to be an Exempt Sublease (as such term is defined in the Lease Agreement)). The Concessionaire shall submit to Lessee (and Lessee shall submit to the Port Authority) all of the following with respect to any such proposed sub-sublet, sub-sublicense or assignment, in order to request the Port Authority’s approval thereof:
(a) |
with respect to the proposed assignee or transferee, information, evidence and supporting documentation concerning the identity of the proposed assignee or transferee, the financial wherewithal of the proposed assignee, and evidence of the proposed assignee’s qualification to do business in the State of New York; |
(b) |
with respect to the proposed assignee or transferee, the organizational documents of such assignee or transferee; |
(c) |
with respect to the proposed assignee or transferee, insurance certificates evidencing maintenance of the insurance required under this Agreement; |
(d) |
with respect to the proposed assignee or transferee, evidence that the proposed assignee or transferee has secured a privilege permit or has submitted an application for such privilege permit and is diligently pursuing receipt of the same; |
(e) |
a certificate of the proposed assignee or transferee or Concessionaire, signed by a responsible officer thereof, stating that there is no change to the terms and conditions of this Agreement proposed to be assigned in connection with the proposed transfer, sub-sublease, sub-sublicense or assignment; |
(f) |
if applicable, a copy of the asset purchase agreement or other agreement evidencing such transfer, sub-sublease, sub-sublicense or assignment, which agreement may be appropriately redacted; and |
(g) |
such other information and data as the Port Authority has reasonably requested. |
27.ACDBE
(a) |
This Agreement shall be subject to the requirements of the United States Department of Transportation’s regulations, 49 C.F.R. Part 23. The Concessionaire agrees that it will not discriminate against any business owner because of the owner’s race, color, national origin or sex in connection with the award or performance of any concession agreement or any management contract, or subcontract, purchase or lease agreement or other agreement covered by 49 C.F.R. Part 23. |
(b) |
The Concessionaire agrees to include the above statements in any subsequent concession agreement or contract covered by 49 C.F.R. Part 23 that it enters and cause those businesses to similarly include the statements in further agreements, the foregoing not to be construed as approval by the Concessions Manager or the Port Authority of any such agreements as required. Further, the Concessionaire agrees to comply with the terms and provisions of Schedule G (Airport Concession Disadvantaged Business Enterprise (ACDBE) Participation) to the Lease Agreement, attached as Exhibit 4 (Airport Concession Disadvantaged Business Enterprise (ACDBE) Participation) hereto. |
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(c) |
The Concessionaire shall not, without the prior written consent of the Port Authority: |
(vii)terminate a sub-sublease with a sub-lessee if such sub-lessee is an ACDBE, or terminate any contract or agreement for the sale of goods or services by an ACDBE to which the Concessionaire is a party;
(viii)refuse to extend or renew a sub-sublease with an ACDBE sub-lessee if such sub-sublease contains an express right of extension or renewal and the conditions thereto have been satisfied by the ACDBE sub-lessee; or
(ix)enter into a sub-sublease with a non-ACDBE sub-lessee for service or space which had been performed or occupied by an ACDBE sub-lessee;
provided that it is understood that the Port Authority will not withhold its consent to any of the foregoing if the applicable action of the Concessionaire is (1) based on a non-discriminatory determination by the Concessionaire under the applicable facts, or (2) is otherwise consistent with the requirements of 49 C.F.R. Part 23.
Title VI Clauses. The Concessionaire agrees to comply in all respects with the terms and conditions of Annex A (Title VI Clauses for Leases, Deeds, Licenses, Permits, or Similar Instruments Involving Use of Airport Space), attached hereto and hereby made a part hereof.
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Annex A
Title VI Clauses for Leases, Deeds, Licenses, Permits, or Similar Instruments
Involving Use of Airport Space
[A5.3.2]
GENERAL CIVIL RIGHTS PROVISIONS
The Concessionaire (hereinafter referred to as the “Contractor”) agrees to comply with pertinent statutes, Executive Orders and such rules as are promulgated to ensure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance. If the Contractor transfers its obligation to another, the transferee is obligated in the same manner as the Contractor.
This provision obligates the Contractor for the period during which the property is owned, used or possessed by the Contractor and the airport remains obligated to the Federal Aviation Administration. This provision is in addition to that required by Title VI of the Civil Rights Act of 1964.
[A6.4.1]
Compliance with Nondiscrimination Requirements:
During the performance of this contract, the Contractor for itself, its assignees, and successors in interest agrees as follows:
7. |
Compliance with Regulations: The Contractor (hereinafter includes consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts and Authorities, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. |
8. |
Nondiscrimination: The Contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Contractor will not participate directly or indirectly in the discrimination prohibited by the Nondiscrimination Acts and Authorities, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR part 21. |
9. |
Solicitations for Subcontracts, including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Contractor of the contractor’s obligations under this contract and the Nondiscrimination Acts and Authorities on the grounds of race, color, or national origin. |
10. |
Information and Reports: The Contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to |
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its books, records, accounts, other sources of information, and its facilities as may be determined by the sponsor or the Federal Aviation Administration to be pertinent to ascertain compliance with such Nondiscrimination Acts and Authorities and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Contractor will so certify to the sponsor or the Federal Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain the information.
11. |
Sanctions for Noncompliance: In the event of a Contractor’s noncompliance with the non-discrimination provisions of this contract, the sponsor will impose such contract sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to: |
a. |
Withholding payments to the Contractor under the contract until the Contractor complies; and/or |
b. |
Cancelling, terminating, or suspending a contract, in whole or in part. |
12. |
Incorporation of Provisions: The Contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations, and directives issued pursuant thereto. The Contractor will take action with respect to any subcontract or procurement as the sponsor or the Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Contractor may request the sponsor to enter into any litigation to protect the interests of the sponsor. In addition, the Contractor may request the United States to enter into the litigation to protect the interests of the United States. |
[A6.4.4]
D. |
The (grantee, licensee, lessee, permittee, etc., as applicable) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, “as a covenant running with the land”) that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishing of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the grantee, licensee, lessee, permittee, etc. will use the premises in compliance with all other requirements imposed by or pursuant to the List of discrimination Acts And Authorities. |
E. |
With respect to licenses, leases, permits, etc., in the event of breach of any of the above nondiscrimination covenants, Port Authority will have the right to terminate the license, permit, etc., as applicable and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said license, permit, etc., as applicable had never been made or issued. |
F. |
With respect to deeds, in the event of breach of any of the above nondiscrimination covenants, Port Authority will there upon revert to and vest in and become the absolute property of Port Authority and its assigns. |
[A6.4.5]
Title VI List of Pertinent Nondiscrimination Acts and Authorities
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During the performance of this contract, contractor/permittee/concessionaire/lessee/operator, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to:
| ● | Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin); |
| ● | 49 CFR part 21 (Non-discrimination in Federally-assisted programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act of 1964); |
| ● | The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 USC § 4601) (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); |
| ● | Section 504 of the Rehabilitation Act of 1973 (29 USC § 794 et seq.), as amended (prohibits discrimination on the basis of disability); and 49 CFR part 27; |
| ● | The Age Discrimination Act of 1975, as amended (42 USC § 6101 et seq.) (prohibits discrimination on the basis of age); |
| ● | Airport and Airway Improvement Act of 1982 (49 USC § 471, Section 47123), as amended (prohibits discrimination based on race, creed, color, national origin, or sex); |
| ● | The Civil Rights Restoration Act of 1987 (PL 100-209) (broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); |
| ● | Titles II and III of the Americans with Disabilities Act of 1990, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 USC §§ 12131 – 12189) as implemented by U.S. Department of Transportation regulations at 49 CFR parts 37 and 38; |
| ● | The Federal Aviation Administration’s Nondiscrimination statute (49 USC § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); |
| ● | Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; |
| ● | Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); |
| ● | Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 USC 1681 et seq). |
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Initialed: |
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For the Contractor |
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SCHEDULE 4
REQUIRED DISCLOSURES
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SCHEDULE 5
COMMON USE SPACE
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EXHIBIT 1
FORM OF CONCESSIONAIRE CERTIFICATION
In connection with that certain [insert name of new Sublease or amendment to existing Sublease] (the [“New Sublease”] [“Sublease Amendment”]) proposed to be entered into between [ ] (the “Concessions Manager”) and [insert name of new proposed Concessionaire] (the “Concessionaire”), the Concessionaire hereby certifies (this “Certification”) the following:
(a)Neither the Concessionaire nor any officer, director, other senior executive, lobbyist or other agent thereof has made any offers or agreements, or given or agreed to give anything of value or taken any other action with respect to any Port Authority Commissioner, officer or employee, or any public official, public appointee or public employee, political candidate, party or party official, or any person formerly in any such position, or immediate family member thereof, in each case in connection with obtaining the [New Sublease] [Sublease Amendment] and which would constitute a breach of the ethical standards under the public officers laws of the State of New York or the State of New Jersey or the Port Authority Code of Ethics and Financial Disclosure applicable to lessees and/or sublessees, contractors, furnishers of services or other persons at the Airport (available at https://www.panynj.gov/corporate/en/government-ethics.html), nor does the Concessionaire have any knowledge of any act on the part of any of the aforementioned persons which would constitute a breach of said ethical standards.
(b)The Concessionaire has not offered, promised or given, demanded or accepted, any improper inducement, directly or indirectly, to or from a Port Authority Commissioner, officer or employee, or any public official, public appointee or public employee, political candidate, party or party official, in connection with obtaining the [New Sublease] [Sublease Amendment].
(c)The [New Sublease] [Sublease Amendment and the related sublease (together, the “Amended Sublease”])] (including all related exhibits, schedules and attachments thereto and all agreements and documents expressly referenced therein and executed in connection with the transactions expressly contemplated thereby) contain all of the promises, agreements, conditions, inducements and understandings of the Concessionaire relating to the subject matter therein, and there are no promises, agreements, conditions, understandings or inducements, oral or written, express or implied, by or for the benefit of the Concessionaire relating to such subject matter other than as expressly set forth therein or as may be expressly contained in any enforceable written agreements or instruments executed by and enforceable against the Concessionaire in connection with the transactions expressly contemplated by the [New Sublease] [Amended Sublease]. In connection with the [New Sublease] [Sublease Amendment], the Concessionaire has not relied on any statement, promise, solicitation, representation, warranty or agreement of any other party or of any other person on such other party’s behalf or otherwise, whether written or oral, express or implied, relating to the subject matter in the [New Sublease] [Amended Sublease], and the Concessionaire is not aware to the best of its knowledge of any such statement, promise, solicitation, representation, warranty or agreement except those expressly contained in the [New Sublease] [Amended Sublease].
This Certification shall be deemed to have been made by the Concessionaire as follows: if the Concessionaire is a corporation, this Certification shall be deemed to have been made not only with respect to the Concessionaire itself, but also with respect to each parent, affiliate, director and officer of the Concessionaire, as well as, to the best of the certifier’s knowledge and belief, each stockholder of the Concessionaire with an ownership interest in excess of 10%; if the Concessionaire is a partnership, this Certification shall be deemed to have been made not only with respect to the Concessionaire itself, but also with respect to each partner.
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Moreover, this Certification, if made by a corporation, shall be deemed to have been authorized by the Board of Directors of the corporation.
This Certification shall be deemed to have been made by the Concessionaire with full knowledge that it will become a part of the records of the Port Authority and that the Port Authority will rely on its truth and accuracy. In the event that the Port Authority should determine at any time prior or subsequent to the execution of this Agreement that the Concessionaire has falsely certified as to any material item in this Certification, or has not fully and accurately represented any circumstance with respect to any item in the foregoing certification required to be disclosed, the Port Authority may, in addition to any rights or remedies available to it at law or in equity, exercise any rights or remedies provided in the Lease Agreement, including, without limitation, Section 20(b)(3)(vi) of the Lease Agreement.
The Concessionaire is advised that knowingly providing a false certification or statement pursuant hereto may be the basis for prosecution for offering a false instrument for filing (see e.g., New York Penal Law, Section 175.30 et seq.).
The Concessionaire has caused its duly authorized representative to sign, in his/her capacity as an agent of the Concessionaire and not in his/her individual capacity, this Certification as of the date written below.
Dated: |
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[CONCESSIONAIRE] |
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- 60 -
EXHIBIT 2
CONCESSIONAIRE DESIGNATED PREMISE
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[**]
[**]
[**]
[**]
[**]
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EXHIBIT 4
AIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISE (ACDBE)
PARTICIPATION
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EXHIBIT 5
REFURBISHMENT CYCLE
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EXHIBIT 6
FORM OF LETTER OF CREDIT
[Insert Name of Issuing Bank] |
Letter Of Credit No. _________ |
[Insert Full Address] |
Irrevocable Standby Letter Of Credit |
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Date of Issue: [●] |
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Stated Expiration Date: [_______] |
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(the “Stated Expiration Date”) |
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Applicant: |
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[Insert Concessionaire Details] |
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Attention: [●] |
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Email: [●] |
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(the Applicant) |
Beneficiary: |
Stated Amount: [_______] |
URW AIRPORTS JFK T1, LLC,14 |
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Address: |
Credit Available With: |
Email: |
[Name of Issuing Bank] |
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Against Presentation of the Documents |
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Detailed Herein Drawn on [Name of Issuing Bank] |
Ladies and Gentlemen:
At the request and for the account of the Applicant, we hereby establish in favor of URW AIRPORTS JFK T1, LLC (the “Beneficiary”), pursuant to that certain Concession Sublease Agreement, dated as of [●], 2022 (as may be amended, amended and restated, supplemented or modified from time to time, the “Concession Sublease Agreement”), among URW AIRPORTS JFK T1, LLC (the “Concessions Manager”) and [●] (the “Concessionaire”), this Irrevocable Standby Letter of Credit No. _____ (this “LC”), for the maximum aggregate amount of [●] (the “Stated Amount”), expiring on the Stated Expiration Date. This LC is issued pursuant to Section 5.3(a) (Security Deposit) of the Concession Sublease Agreement in relation to the Concessionaire.
We irrevocably authorize you to draw on us, in accordance with the terms and conditions hereinafter set forth, in any amount up to the Available Amount (as defined below) available against presentation of a dated drawing request drawn on [Name of Issuing Bank] manually signed by a purported authorized officer of the Beneficiary completed in the form of Annex 1 hereto (such request, a “Drawing Request”). Partial drawings are allowed under this LC. Each Drawing Request honored by us shall immediately reduce the amount available to be drawn hereunder by the amount of the payment made in respect of such Drawing Request (each, an “Automatic Reduction”).
14 |
Note to Form: So long as URW Airports JFK T1, LLC (“URW”) is the concessions manager under the Management Concessions Development Agreement, URW, otherwise JFK NTO LLC. |
65
On any given date, the Stated Amount (as set forth on the first page of this LC) minus any Automatic Reductions minus any voluntary reductions made through LC Reduction Certificates (as defined below) pursuant to the terms hereof shall be the aggregate amount available hereunder (the “Available Amount”).
Drawing Requests shall be in writing, addressed or presented in person or by email, fax or courier to us at: [Name of Issuing Bank], [Address of Issuing Bank], [Email address] (fax no.: [●]; telephone no.: [●]), referencing this LC No. . All other communications with respect to this LC shall be in writing, sent by mail or by courier or presented in person (or if agreed by us, transmitted by electronic communication), if to us at: [Name of Issuing Bank], [Address of Issuing Bank], [Email address] (fax no.: [●]; telephone no.: [●])15 and if to the Beneficiary at: [●], referencing this LC No. .
If a Drawing Request is presented in compliance with the terms of this LC to us at such address by 11:00 a.m., New York City time, on any Business Day, payment shall be made to you not later than the close of business, New York City time, on the 2nd Business Day after such presentation. If a Drawing Request is so presented to us after 11:00 a.m., New York City time, on any Business Day, payment will be made on the 3rd Business Day after such presentation not later than the close of business, New York City time. Payment under this LC shall be made in immediately available funds by wire transfer to such account as may be designated by the Beneficiary in the applicable Drawing Request.16
As used in this LC, “Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized or required by law to remain closed in the State of New York.
This LC shall be deemed automatically extended without amendment for one (1) year periods from the Stated Expiration Date hereof and each successive expiration date (such date of expiration, as extended, the “Extended Stated Expiration Date”) unless either of the following occur: (1) our receipt of written confirmation from the Beneficiary authorizing us to cancel this LC accompanied by the original of this LC and all amendments, if any; or (2) if, at least thirty (30) days prior to the Stated Expiration Date or the Extended Stated Expiration Date, as applicable, we have sent written notice (such notice, the “Expiration Notice”) to the Beneficiary, and a copy to the Applicant, by courier delivery, delivery in person or email, that we elect not to consider this LC extended for any such additional period.
This LC is effective as of the date hereof.
In the event that a Drawing Request fails to comply with the terms of this LC, we shall provide the Beneficiary prompt notice of same stating the reasons therefor and shall upon receipt of the Beneficiary’s instructions, hold any nonconforming Drawing Request and other documents at your disposal or return any non-conforming Drawing Request and other documents to the Beneficiary at the address set forth above by courier, mail delivery or delivery in person or email. Upon being notified that the drawing was not effected in compliance with this LC, the Beneficiary may attempt to correct such non-complying Drawing Request if, and to the extent that you are entitled and able to do so, on or before the current Stated Expiration Date or Extended Stated Expiration Date, as applicable.
This LC sets forth in full the terms of our undertaking and this undertaking shall not in any way be modified, amended, limited or amplified by reference to any document, instrument or agreement referred to herein, and any such reference shall not be deemed to incorporate herein by reference any document, instrument, or agreement except for Drawing Requests and certificates.
15 Note to form: Beneficiary requires presentation to be permitted by fax.
16 Note to form: To be 10:00am New York City time, for Australian banks.
66
This LC is transferable to the Successor Beneficiary (as defined in Annex 2), in its entirety but not in part, and in accordance with ISP 98 (as defined below), upon presentation to us of a signed transfer certificate (a “Transfer Certificate”) in the form of Annex 2 accompanied by this LC and all amendments, if any, in which the Beneficiary irrevocably transfers to the successor lessee all of its rights hereunder, whereupon we agree to either issue a substitute letter of credit to the Successor Beneficiary or endorse such transfer on the reverse of this LC. Transfers to designated foreign nationals are not permitted to the extent contrary to the U.S. Treasury Department or Foreign Assets Controls Regulations. Transfers must comply with all applicable laws, including international trade sanctions and anti-money laundering regulations.
Any request for a voluntary reduction hereunder shall be in the form of Annex 3 hereto and manually signed by a purported authorized officer of the Beneficiary (such request, an “LC Reduction Certificate”). All banking charges are for the account of the Applicant. Any transfer fees are for the Beneficiary’s account.
This LC shall not be amended except with the written concurrence of the Beneficiary.
We hereby engage with you that a Drawing Request drawn strictly in compliance with the terms of this LC and any amendments hereto shall be honored.
This LC is subject to the rules of the to the ISP 98 International Standby Practices, International Chamber of Commerce, Paris Publication No. 590 (“ISP 98”), except as to the extent that the terms of this LC are inconsistent with the provisions thereof, in which case the terms hereof shall govern. To the extent not inconsistent with the ISP 98 or not covered by the ISP 98, this LC shall be governed by and construed in accordance with the laws of the State of New York.
Any legal action or proceeding with respect to this LC shall be brought in the courts of the State of New York in the County of New York or of the United States of America in the Southern District of New York. You (by your acceptance hereof) and we irrevocably submit to the nonexclusive jurisdiction of such courts solely for the purposes of this LC. You (by your acceptance hereof) and we hereby waive to the fullest extent permitted by law any objection either of us may now or hereafter have to the laying of venue in any such action or proceeding in any such court.
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[Name of Issuing Bank] |
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Authorized signature |
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ANNEX 1
[Letterhead of URW AIRPORTS JFK T1, LLC]
Drawn under [Name of Issuing Bank],
LC Number ______ dated _______
DRAWING REQUEST
[Date]
[Insert Name of Issuing Bank]
[Insert Full Address]
[Insert E-mail]
[Insert Fax]
Ladies and Gentlemen:
The undersigned, a duly authorized officer of URW AIRPORTS JFK T1, LLC, (the “Beneficiary”), hereby draws on [Name of Issuing Bank] Irrevocable Standby Letter of Credit No. (the “LC”) dated [ ⚫ ], issued by you in favor of the Beneficiary therein. Any capitalized term used herein and not defined herein shall have its respective meaning as set forth in the LC or in the Concession Sublease Agreement referred to in the LC.
In connection with this drawing, we hereby certify to [Name of Issuing Bank] as follows:
A) |
The Beneficiary is making a drawing equal to US$ under the LC pursuant to Section 5.3(b) (Use or Application of Security Deposit) of the Concession Sublease Agreement; |
B) |
The amount requested to be drawn does not exceed the maximum Available Amount in effect as of the date hereof; and |
C) |
You are directed to make payment of the requested drawing to our account no. at [insert Bank Account name, address]. |
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has executed and delivered this request on the date first written above.
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URW AIRPORTS JFK T1, LLC |
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By: |
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Name: |
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Title: |
CC:
68
ANNEX 2
[Letterhead of URW AIRPORTS JFK T1, LLC]
TRANSFER CERTIFICATE
[Date]
[Name of Issuing Bank Name]
[Insert Issuing Bank’s Address]
Ladies and Gentlemen:
Reference is made to [Name of Issuing Bank] Irrevocable Standby Letter of Credit No. (the “LC”) dated [⚫], originally issued by you in favor of URW AIRPORTS JFK T1, LLC (the “Beneficiary”). Any capitalized term used herein and not defined shall have its respective meaning as set forth in the LC.
For value received, the undersigned, as the current Beneficiary under the LC, hereby irrevocably transfers to [Insert Transferee name and address] (herein called the “Transferee”) all rights of the undersigned to draw under the LC in its entirety. We certify that the Transferee is the successor Concessions Manager pursuant to and in accordance with the terms of Section [5.10] (Successor and Assigns) of the Concession Sublease Agreement (such agent, the “Successor Beneficiary”).
By this transfer, all rights of the undersigned, as Beneficiary under the LC, are transferred to the Transferee, and the Transferee shall have the sole rights with respect to such LC (to the exclusion of the undersigned) including without limitation all rights relating to any amendments thereof and any notices thereunder. All amendments to such LC are to be consented to by the Transferee without necessity of any consent of or notice to the undersigned.
Simultaneously with the delivery of this notice to you, copies of this notice are being transmitted to the Transferee and the Applicant.
The original LC and amendment(s), if any (or other evidence satisfactory to you), is/are returned herewith, and we ask you to either issue a substitute letter of credit for the benefit of the Transferee [in an amount equal to the Available Amount (as defined in the LC) of the LC on the date of this notice and otherwise on the same terms as the original LC] or endorse the transfer on the reverse thereof, and forward it directly to the Transferee with your customary notice of transfer.
We certify that this transfer is not in violation of any federal or state laws and further confirm our understanding that the execution of this transfer by you is subject to compliance with all legal requirements and related procedures implemented by your bank under applicable laws of the United States of America.
69
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Very truly yours, |
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URW AIRPORTS JFK T1, LLC, |
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By: |
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Name: |
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Title: |
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The signature of the Beneficiary with title as stated conforms with that on file with us and is authorized for the execution of such instruction. |
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SIGNATURE AUTHENTICATED BY: (NAME AND TITLE) |
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BENEFICIARY’S BANK AUTHORIZED SIGNATURE |
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NAME AND ADDRESS OF BENEFICIARY’S BANK |
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CC: |
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[Insert name and address of Transferee] |
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70
ANNEX 3
[Letterhead of URW AIRPORTS JFK T1]
LC REDUCTION CERTIFICATE
[Date]
[Name of Eligible LC Issuer]
Ladies and Gentlemen:
The undersigned duly authorized officer of URW AIRPORTS JFK T1, LLC (the “Beneficiary”), having been so directed by [●] (the “Applicant”) hereby refers to [Name of Eligible LC Issuer] Irrevocable Standby Letter of Credit No. (the “LC”) dated [●], issued by you in our favor for the account of the Applicant. Any capitalized term used herein and not defined herein shall have its respective meaning as set forth in the LC.
We hereby request that an immediate and irrevocable reduction to the Stated Amount under the LC in the amount of [US$ ] to [US$ ]. The new Stated Amount shall be [US$__________].
We hereby certify that the undersigned is a duly authorized officer of the Beneficiary.
IN WITNESS WHEREOF, the undersigned has executed and delivered this request on the date first written above.
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URW AIRPORTS JFK T1, LLC, |
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By: |
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Name: |
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Title: |
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EXHIBIT 7
EVIDENCE OF SIGNED LABOR PEACE AGREEMENT
Insert the name of the company (the “Company”) has complied with board Resolution “All airports – Labor Harmony Policy” passed October 18, 2007, which stipulates that the Company must sign a Labor Peace Agreement with a labor organization that seeks to represent the Company’s employees and that contains provisions under which the labor organization and its members agree to refrain from engaging in any picketing, work stoppages, boycotts or any other economic interference with the Company’s operations.
FOR THE COMPANY: | ||
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Insert Name of Company | ||
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By: |
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Print Name: |
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Its: |
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Date: |
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FOR THE UNION: | ||
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Insert Name of Labor Organization | ||
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By: |
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Print Name: |
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Its: |
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Date: |
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72
EXHIBIT 8
LETTER IN LIEU OF EXHIBIT 7
[CONCESSIONAIRE COMPANY’S LETTERHEAD]
The Port Authority of New York and New Jersey
4 World Trade Center
150 Greenwich Street
New York, NY 10007
Attn: Director of Aviation
To Whom It May Concern:
Reference is made to a permit (“Permit”), dated [Enter Date], between The Port Authority of New York and New Jersey (Port Authority) and this company (“Permittee”) for concession space
at Terminal ___ at Airport (“Airport”). This letter is being provided in connection with [the Permit][Supplement No. ___ to the Permit] and is accurate as of the date of the Permittee’s execution of [the Permit][Supplement No. ___ to the Permit].
The undersigned is an officer of the Permittee and certifies to the Port Authority under penalty of perjury as follows. There is no labor organization (as defined by 29 U.S.C. Section 152(5)) that seeks to represent the Permittee’s employees at the Airport. Accordingly, the Permittee has not, and is not obligated to, enter into a labor peace agreement as contemplated by Exhibit X to [the Permit][Supplement No. ___ to the Permit] and by the resolution of the Port Authority’s Board of Commissioners, entitled “All Airports – Labor Harmony Policy”, passed October 18, 2007.
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Very truly yours, |
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Print Name: |
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Title: |
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EXHIBIT P – [**]
[**]
[**]
74
EXHIBIT Q – FORM OF SECURITY DEPOSIT LETTER OF CREDIT
[Insert Name of Issuing Bank] |
Letter Of Credit No. _________ |
[Insert Full Address] |
Irrevocable Standby Letter Of Credit |
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Date of Issue: [●] |
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Stated Expiration Date: [_______] |
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(the “Stated Expiration Date”) |
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Applicant: |
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[Insert Concessionaire Details] |
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Attention: [●] |
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Email: [●] |
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(the Applicant) |
Beneficiary: |
Stated Amount: [_______] |
URW AIRPORTS JFK T1, LLC, |
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Address: |
Credit Available With: |
Email: |
[Name of Issuing Bank] |
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Against Presentation of the Documents |
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Detailed Herein Drawn on [Name of Issuing Bank] |
Ladies and Gentlemen:
At the request and for the account of the Applicant, we hereby establish in favor of URW AIRPORTS JFK T1, LLC (the “Beneficiary”), pursuant to that certain Concession Sublease Agreement, dated as of [●], 2022 (as may be amended, amended and restated, supplemented or modified from time to time, the “Concession Sublease Agreement”), among URW AIRPORTS JFK T1, LLC (the “Concessions Manager”) and [●] (the “Concessionaire”), this Irrevocable Standby Letter of Credit No. _____ (this “LC”), for the maximum aggregate amount of [●] (the “Stated Amount”), expiring on the Stated Expiration Date. This LC is issued pursuant to Section 5.3(a) (Security Deposit) of the Concession Sublease Agreement in relation to the Concessionaire.
We irrevocably authorize you to draw on us, in accordance with the terms and conditions hereinafter set forth, in any amount up to the Available Amount (as defined below) available against presentation of a dated drawing request drawn on [Name of Issuing Bank] manually signed by a purported authorized officer of the Beneficiary completed in the form of Annex 1 hereto (such request, a “Drawing Request”). Partial drawings are allowed under this LC. Each Drawing Request honored by us shall immediately reduce the amount available to be drawn hereunder by the amount of the payment made in respect of such Drawing Request (each, an “Automatic Reduction”).
On any given date, the Stated Amount (as set forth on the first page of this LC) minus any Automatic Reductions minus any voluntary reductions made through LC Reduction Certificates (as defined below) pursuant to the terms hereof shall be the aggregate amount available hereunder (the “Available Amount”).
75
Drawing Requests shall be in writing, addressed or presented in person or by email, fax or courier to us at: [Name of Issuing Bank], [Address of Issuing Bank], [Email address] (fax no.: [●]; telephone no.:[●]), referencing this LC No. . All other communications with respect to this LC shall be in writing, sent by mail or by courier or presented in person (or if agreed by us, transmitted by electronic communication), if to us at: [Name of Issuing Bank], [Address of Issuing Bank], [Email address] (fax no.: [●]; telephone no.: [●])17 and if to the Beneficiary at: [●], referencing this LC No. .
If a Drawing Request is presented in compliance with the terms of this LC to us at such address by 11:00 a.m., New York City time, on any Business Day, payment shall be made to you not later than the close of business, New York City time, on the 2nd Business Day after such presentation. If a Drawing Request is so presented to us after 11:00 a.m., New York City time, on any Business Day, payment will be made on the 3rd Business Day after such presentation not later than the close of business, New York City time. Payment under this LC shall be made in immediately available funds by wire transfer to such account as may be designated by the Beneficiary in the applicable Drawing Request.18
As used in this LC, “Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized or required by law to remain closed in the State of New York.
This LC shall be deemed automatically extended without amendment for one (1) year periods from the Stated Expiration Date hereof and each successive expiration date (such date of expiration, as extended, the “Extended Stated Expiration Date”) unless either of the following occur: (1) our receipt of written confirmation from the Beneficiary authorizing us to cancel this LC accompanied by the original of this LC and all amendments, if any; or (2) if, at least thirty (30) days prior to the Stated Expiration Date or the Extended Stated Expiration Date, as applicable, we have sent written notice (such notice, the “Expiration Notice”) to the Beneficiary, and a copy to the Applicant, by courier delivery, delivery in person or email, that we elect not to consider this LC extended for any such additional period.
This LC is effective as of the date hereof.
In the event that a Drawing Request fails to comply with the terms of this LC, we shall provide the Beneficiary prompt notice of same stating the reasons therefor and shall upon receipt of the Beneficiary’s instructions, hold any nonconforming Drawing Request and other documents at your disposal or return any non-conforming Drawing Request and other documents to the Beneficiary at the address set forth above by courier, mail delivery or delivery in person or email. Upon being notified that the drawing was not effected in compliance with this LC, the Beneficiary may attempt to correct such non-complying Drawing Request if, and to the extent that you are entitled and able to do so, on or before the current Stated Expiration Date or Extended Stated Expiration Date, as applicable.
This LC sets forth in full the terms of our undertaking and this undertaking shall not in any way be modified, amended, limited or amplified by reference to any document, instrument or agreement referred to herein, and any such reference shall not be deemed to incorporate herein by reference any document, instrument, or agreement except for Drawing Requests and certificates.
This LC is transferable to the Successor Beneficiary (as defined in Annex 2), in its entirety but not in part, and in accordance with ISP 98 (as defined below), upon presentation to us of a signed transfer certificate (a “Transfer Certificate”) in the form of Annex 2 accompanied by this LC and all amendments, if any, in which the Beneficiary irrevocably transfers to the successor lessee all of its rights hereunder, whereupon we agree to either issue a substitute letter of credit to the Successor Beneficiary or endorse such
17 Note to form: Beneficiary requires presentation to be permitted by fax.
18 Note to form: To be 10:00am New York City time, for Australian banks.
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transfer on the reverse of this LC. Transfers to designated foreign nationals are not permitted to the extent contrary to the U.S. Treasury Department or Foreign Assets Controls Regulations. Transfers must comply with all applicable laws, including international trade sanctions and anti-money laundering regulations.
Any request for a voluntary reduction hereunder shall be in the form of Annex 3 hereto and manually signed by a purported authorized officer of the Beneficiary (such request, an “LC Reduction Certificate”). All banking charges are for the account of the Applicant. Any transfer fees are for the Beneficiary’s account.
This LC shall not be amended except with the written concurrence of the Beneficiary.
We hereby engage with you that a Drawing Request drawn strictly in compliance with the terms of this LC and any amendments hereto shall be honored.
This LC is subject to the rules of the to the ISP 98 International Standby Practices, International Chamber of Commerce, Paris Publication No. 590 (“ISP 98”), except as to the extent that the terms of this LC are inconsistent with the provisions thereof, in which case the terms hereof shall govern. To the extent not inconsistent with the ISP 98 or not covered by the ISP 98, this LC shall be governed by and construed in accordance with the laws of the State of New York.
Any legal action or proceeding with respect to this LC shall be brought in the courts of the State of New York in the County of New York or of the United States of America in the Southern District of New York. You (by your acceptance hereof) and we irrevocably submit to the nonexclusive jurisdiction of such courts solely for the purposes of this LC. You (by your acceptance hereof) and we hereby waive to the fullest extent permitted by law any objection either of us may now or hereafter have to the laying of venue in any such action or proceeding in any such court.
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[Name of Issuing Bank] |
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Authorized signature |
77
ANNEX 1
[Letterhead of URW AIRPORTS JFK T1, LLC]
Drawn under [Name of Issuing Bank],
LC Number ______ dated_________
DRAWING REQUEST
[Date]
[Insert Name of Issuing Bank]
[Insert Full Address]
[Insert E-mail]
[Insert Fax]
Ladies and Gentlemen:
The undersigned, a duly authorized officer of URW AIRPORTS JFK T1, LLC, (the “Beneficiary”), hereby draws on [Name of Issuing Bank] Irrevocable Standby Letter of Credit No. (the “LC”) dated [●], issued by you in favor of the Beneficiary therein. Any capitalized term used herein and not defined herein shall have its respective meaning as set forth in the LC or in the Concession Sublease Agreement referred to in the LC.
In connection with this drawing, we hereby certify to [Name of Issuing Bank] as follows:
A) |
The Beneficiary is making a drawing equal to US$ under the LC pursuant to Section 5.3(b) (Use or Application of Security Deposit) of the Concession Sublease Agreement; |
B) |
The amount requested to be drawn does not exceed the maximum Available Amount in effect as of the date hereof; and |
C) |
You are directed to make payment of the requested drawing to our account no. at [insert Bank Account name, address]. |
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has executed and delivered this request on the date first written above.
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URW AIRPORTS JFK T1, LLC |
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By: |
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Name: |
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Title: |
CC:
78
ANNEX 2
[Letterhead of URW AIRPORTS JFK T1, LLC]
TRANSFER CERTIFICATE
[Date]
[Name of Issuing Bank Name]
[Insert Issuing Bank’s Address]
Ladies and Gentlemen:
Reference is made to [Name of Issuing Bank] Irrevocable Standby Letter of Credit No. (the “LC”) dated [●], originally issued by you in favor of URW AIRPORTS JFK T1, LLC (the “Beneficiary”). Any capitalized term used herein and not defined shall have its respective meaning as set forth in the LC.
For value received, the undersigned, as the current Beneficiary under the LC, hereby irrevocably transfers to [Insert Transferee name and address] (herein called the “Transferee”) all rights of the undersigned to draw under the LC in its entirety. We certify that the Transferee is the successor Concessions Manager pursuant to and in accordance with the terms of Section [5.10] (Successor and Assigns) of the Concession Sublease Agreement (such agent, the “Successor Beneficiary”).
By this transfer, all rights of the undersigned, as Beneficiary under the LC, are transferred to the Transferee, and the Transferee shall have the sole rights with respect to such LC (to the exclusion of the undersigned) including without limitation all rights relating to any amendments thereof and any notices thereunder. All amendments to such LC are to be consented to by the Transferee without necessity of any consent of or notice to the undersigned.
Simultaneously with the delivery of this notice to you, copies of this notice are being transmitted to the Transferee and the Applicant.
The original LC and amendment(s), if any (or other evidence satisfactory to you), is/are returned herewith, and we ask you to either issue a substitute letter of credit for the benefit of the Transferee [in an amount equal to the Available Amount (as defined in the LC) of the LC on the date of this notice and otherwise on the same terms as the original LC] or endorse the transfer on the reverse thereof, and forward it directly to the Transferee with your customary notice of transfer.
We certify that this transfer is not in violation of any federal or state laws and further confirm our understanding that the execution of this transfer by you is subject to compliance with all legal requirements and related procedures implemented by your bank under applicable laws of the United States of America.
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Very truly yours, |
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URW AIRPORTS JFK T1, LLC, |
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By: |
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Name: |
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Title: |
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The signature of the Beneficiary with title as stated conforms with that on file with us and is authorized for the execution of such instruction. |
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SIGNATURE AUTHENTICATED BY: (NAME AND TITLE) |
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BENEFICIARY’S BANK AUTHORIZED SIGNATURE |
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NAME AND ADDRESS OF BENEFICIARY’S BANK |
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CC: |
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[Insert name and address of Transferee] |
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80
ANNEX 3
[Letterhead of URW AIRPORTS JFK T1]
LC REDUCTION CERTIFICATE
[Date]
[Name of Eligible LC Issuer]
Ladies and Gentlemen:
The undersigned duly authorized officer of URW AIRPORTS JFK T1, LLC (the “Beneficiary”), having been so directed by [●] (the “Applicant”) hereby refers to [Name of Eligible LC Issuer] Irrevocable Standby Letter of Credit No. (the “LC”) dated [●], issued by you in our favor for the account of the Applicant. Any capitalized term used herein and not defined herein shall have its respective meaning as set forth in the LC.
We hereby request that an immediate and irrevocable reduction to the Stated Amount under the LC in the amount of [US$ ] to [US$ ]. The new Stated Amount shall be [US$__________].
We hereby certify that the undersigned is a duly authorized officer of the Beneficiary.
IN WITNESS WHEREOF, the undersigned has executed and delivered this request on the date first written above.
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URW AIRPORTS JFK T1, LLC, |
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Exhibit S-1 – Labor Peace Agreement
EVIDENCE OF SIGNED LABOR PEACE AGREEMENT
Insert the name of the company (the “Company”) has complied with board Resolution “All airports –Labor Harmony Policy” passed October 18, 2007, which stipulates that the Company must sign a Labor Peace Agreement with a labor organization that seeks to represent the Company’s employees and that contains provisions under which the labor organization and its members agree to refrain from engaging in any picketing, work stoppages, boycotts or any other economic interference with the Company’s operations.
FOR THE COMPANY: | ||
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By: |
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Print Name: |
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Its: |
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Date: |
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FOR THE UNION: | ||
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82
Exhibit S-2 Letter In Lieu of Exhibit S-1
[COMPANY’S LETTERHEAD]
The Port Authority of New York and New Jersey
4 World Trade Center
150 Greenwich Street
New York, NY 10007
Attn: Director of Aviation
To Whom It May Concern:
Reference is made to a permit (“Permit”), dated [Enter Date], between The Port Authority of New York and New Jersey (“Port Authority”) and this company (“Permittee”) for concession space at Terminal ___ at Airport (“Airport”). This letter is being provided in connection with [the Permit][Supplement No. ___ to the Permit] and is accurate as of the date of the Permittee’s execution of [the Permit][Supplement No. ___ to the Permit].
The undersigned is an officer of the Permittee and certifies to the Port Authority under penalty of perjury as follows: There is no labor organization (as defined by 29 U.S.C. Section 152(5)) that seeks to represent the Permittee’s employees at the Airport. Accordingly, the Permittee has not, and is not obligated to, enter into a labor peace agreement as contemplated by Exhibit X to [the Permit][Supplement No. ___ to the Permit] and by the resolution of the Port Authority’s Board of Commissioners, entitled “All Airports – Labor Harmony Policy”, passed October 18, 2007.
Very truly yours,
Print Name:
Title:
8.3 Table of Figures
Figure # |
Section |
Name of Figure |
01 |
3.2.2; Demographic Overview |
NTO Passenger Mix |
02 |
3.2.2; Demographic Overview |
Age & Gender Mix of NTO |
03 |
3.2.2; Demographic Overview |
Destinations of NY Respondents in 3Yrs |
04 |
3.2.2; Demographic Overview |
International Respondents – NY Favorites |
05 |
3.2.3; Travel Behaviors |
Thoughts on International Travel |
06 |
3.2.3; Travel Behaviors |
Timing of Airport Journeys |
07 |
3.2.4; Next Generation of Travelers |
Key Groups & Focuses |
83
08 |
4.1; Introduction |
Commercial Concept Chart |
09 |
4.2.1; Methodology |
Ongoing Dynamic Optimization |
10 |
4.2.2; Key Assumptions |
Description of Approach |
11 |
4.2.2; Key Assumptions |
% Space by Core Category |
12 |
4.2.2; Key Assumptions |
SPE (USD) by Core Category |
13 |
4.2.2; Key Assumptions |
Commercial Projections Macro Category Summary Stable Year |
14 |
4.3; Collaborative Framework |
Collaboration Table based on Milestone |
15 |
5.2.1A; Space Requirements |
Space Requirement Table by SqFt & % |
16 |
5.2.4B; Prospective Categories & Brands |
Prospective Categories & Brands |
17A |
5.3.6; Character Zones |
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17B |
5.3.6; Character Zones |
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18A |
5.4; Plans |
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18B |
5.4; Plans |
Landside Level 03 |
18C |
5.4; Plans |
Airside Level 02 |
18D |
5.4; Plans |
Axonometric View 01 |
18E |
5.4; Plans |
Arrivals Level 01 |
19 |
6.1; Leasing Process |
Leasing Process & Activity |
20 |
6.4; Contractual Framework |
Contractual Framework Specifics |
21 |
6.5.1; ACDBE |
Program Lifecycle of Development Plan |
22 |
6.5.2; LBE |
Maximizing Local and Minority-Owned Business Participation |
23 |
6.5.2; LBE |
Low-Risk Opportunity Table |
24 |
6.5.3 M/WBE |
M/WBE Development Plan |
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.23
EXECUTION VERSION
MASTER RETAIL DEVELOPMENT, MANAGEMENT AND LEASING AGREEMENT
by and between
AMERICAN AIRLINES, INC.
and
JFK T8 INNOVATION PARTNERS, LLC
Dated as of July 1, 2023
TABLE OF CONTENTS
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Page |
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1. |
DEFINITIONS. |
2 |
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1.1 |
Definitions |
2 |
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2. |
SUBLEASED PREMISES. |
20 |
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2.1 |
Sublease |
20 |
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2.2 |
Appurtenant Rights |
20 |
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2.3 |
Contraction, Expansion, and Relocation. |
20 |
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2.4 |
Lease Between American and the Port Authority. |
22 |
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3. |
TERM. |
24 |
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3.1 |
Term |
24 |
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3.2 |
Early Termination |
24 |
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3.3 |
Assumption of Subleases |
25 |
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3.4 |
Suspension by Port Authority of Operator Permit |
26 |
[**] |
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4.9 |
Late Payment Charges |
29 |
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4.10 |
No Abatement |
29 |
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4.11 |
Security Deposit |
30 |
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4.12 |
Tax Indemnity; Additional Payment Obligations |
30 |
[**] |
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5. |
CONSTRUCTION OF THE PREMISES |
34 |
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5.1 |
Redevelopment of the Premises |
34 |
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5.2 |
Permanent Facilities |
34 |
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Figure 1* |
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36 |
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5.3 |
Financing Fixed Improvements/Refurbishments; No Liens. |
40 |
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5.4 |
Liquidated Damages |
40 |
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5.5 |
Office Facilities |
41 |
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6. |
CONCESSION AGREEMENTS |
41 |
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6.1 |
Subleases |
41 |
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6.2 |
Use and Prohibited Uses |
52 |
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6.3 |
Ingress and Egress |
53 |
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6.4 |
Assignment of Existing Subleases |
53 |
[**] |
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i
[**] |
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7.6 |
American’s Rules and Regulations |
67 |
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7.7 |
Subtenant Operational Reviews |
67 |
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7.8 |
Minimum Wage Policy |
68 |
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7.9 |
Americans with Disabilities Act |
69 |
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8. |
CONCESSION AREA MAINTENANCE; RESERVATION OF RIGHTS |
69 |
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8.1 |
General Concession Area Maintenance., Operating Expenses |
69 |
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8.2 |
Specific Maintenance, Repair and Janitorial Responsibilities |
70 |
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8.3 |
Access, Transport and Equipment Norms |
72 |
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8.4 |
Utility Services |
72 |
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8.5 |
Refurbishments |
75 |
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8.6 |
Reservation of Rights by American |
75 |
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9. |
SUSTAINABILITY EFFORTS. |
77 |
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9.1 |
Retail Manager Bound by American Sustainability Requirements |
77 |
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9.2 |
Sustainability Goals |
78 |
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9.3 |
Documentation |
78 |
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9.4 |
Non-Compliance |
78 |
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10. |
RESERVED USES |
79 |
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10.1 |
Reservations by the Port Authority and American |
79 |
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10.2 |
Reserved Uses Generally |
79 |
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10.3 |
Reserved Uses Incidental to Concessions Operations |
79 |
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11. |
AFFIRMATIVE ACTION AND NONDISCRIMINATION |
79 |
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11.1 |
Retail Manager Bound by American Requirements |
79 |
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11.2 |
Non-Discrimination. |
80 |
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11.3 |
Affirmative Action |
83 |
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11.4 |
Retail Manager’s Ongoing Minority -Owned Business Enterprises Women-Owned Business Enterprises Commitment and Local Business Enterprises Commitment |
84 |
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11.5 |
Airport Concession Disadvantaged Business Enterprise |
86 |
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12. |
BOOKS, RECORDS AND REPORTING |
88 |
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12.1 |
General Requirements |
88 |
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12.2 |
Concession Area Transactions |
91 |
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12.3 |
Revenue Control |
92 |
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12.4 |
Business Statistics Report |
92 |
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13. |
REPRESENTATIONS AND WARRANTIES |
92 |
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13.1 |
American’s Disclaimer |
92 |
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13.2 |
Retail Manager’s Representations and Warranties |
93 |
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13.3 |
American’s Representations and Warranties |
93 |
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14. |
DEFAULT AND REMEDIES; TERMINATION |
94 |
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14.1 |
Events of Default |
94 |
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14.2 |
Intentionally Omitted |
99 |
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14.3 |
Surrender of Premises |
99 |
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14.4 |
Attorney’s Fees |
100 |
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15. |
LIABILITY; INSURANCE; DESTRUCTION; MISCELLANEOUS |
100 |
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15.1 |
Liability, Indemnity, Insurance and Bonds |
100 |
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15.2 |
American’s Indemnification and Insurance |
108 |
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15.3 |
No Agency Created; No Third Party Beneficiaries |
109 |
ii
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15.4 |
Damage or Destruction; Condemnation |
110 |
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15.5 |
Condemnation |
112 |
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15.6 |
Permits, Licenses and Approval; Rules and Regulations |
112 |
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15.7 |
Successors |
112 |
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15.8 |
Notices |
112 |
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15.9 |
Force Majeure |
113 |
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15.10 |
Governing Law; Jurisdiction |
114 |
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15.11 |
Self-Help |
114 |
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15.12 |
Amendments, Modifications, Etc. |
115 |
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15.13 |
Holding Over by Retail Manager |
115 |
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15.14 |
Approvals |
116 |
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15.15 |
Labor Assurances |
116 |
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15.16 |
No Assignment |
116 |
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15.17 |
Intellectual Property; American’s Names and Marks |
118 |
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15.18 |
Compliance |
118 |
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15.19 |
Realtors |
119 |
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15.20 |
Licenses and Permits |
119 |
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15.21 |
Estoppel Certificates |
119 |
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15.22 |
DISCLAIMER |
119 |
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15.23 |
Survival of Obligations |
120 |
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15.24 |
Invalid or Unenforceable Provisions |
120 |
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15.25 |
American’s Lien |
120 |
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15.26 |
Prior Agreement |
121 |
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15.27 |
Entire Agreement |
121 |
[**] |
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iii
[**]
iv
MASTER RETAIL DEVELOPMENT, MANAGEMENT AND LEASING AGREEMENT
THIS MASTER RETAIL DEVELOPMENT, MANAGEMENT AND LEASING AGREEMENT (together with all exhibits and attachments, this “Agreement”) is entered into July 1, 2023 (the “Effective Date”) by and between AMERICAN AIRLINES, INC., a Delaware corporation (“American”), and JFK T8 Innovation Partners, LLC, a Delaware limited liability company (“Retail Manager”).
BACKGROUND
WHEREAS, by that certain Amended and Restated Lease No. AYB 085R, dated as of December 22, 2000 (the “Original Lease”), as amended by (i) that certain First Supplemental Agreement, dated as of July 31, 2002 (“Supplement No. 1”), (ii) that certain Second Supplemental Agreement, dated as of November 8, 2005 (“Supplement No. 2”), (iii) that certain Third Supplemental Agreement, dated as of December 1, 2005 (“Supplement No. 3”), (iv) that certain Fourth Supplemental Agreement, dated as of June 16, 2016 (“Supplement No. 4”), and (v) that certain Fifth Supplemental Agreement, dated as of June 1, 2020 (“Supplement No. 5,” and together with the Original Lease, Supplement No. 1, Supplement No. 2, Supplement No. 3, Supplement No. 4, and any previous or future amendments or modifications thereto, the “Lease”), American leased from The Port Authority of New York and New Jersey (the “Port Authority”) certain premises and facilities, which premises are shown on Exhibit A to this Agreement (the “Premises”), at John F. Kennedy International Airport, Jamaica, New York 11436 (the “Airport”) known as Terminal 8 (the “Terminal”);
WHEREAS, American is currently operating the Premises in accordance with the Lease, and this Agreement is subject to and subordinate to the Lease in all respects;
WHEREAS, American desires, subject to the prior written approval of the Port Authority in accordance with Section 2.4.3 below, to allow Retail Manager to develop, lease, manage, and market a portion of the Premises for concession purposes;
WHEREAS, the portion of the Premises which is identified on Exhibit B-1 to this Agreement including the specified Subtenant Premises and designated common areas shown thereon is the existing concession area (the “Existing Concession Area”) and the portion of the Premises which is identified on Exhibit B-2 to this Agreement including the specified Subtenant Premises and designated common areas shown thereon is the proposed concession area (as the same may be expanded, contracted or relocated in accordance with the provisions of this Agreement, the “Proposed Concession Area”), in accordance with the terms and conditions set forth in this Agreement and the Lease;
[**]
WHEREAS, Retail Manager desires to develop, lease, manage and market the Concession Area at the Premises in accordance with the terms and conditions set forth in this Agreement and the Lease;
NOW, THEREFORE, for and in consideration of these premises and the mutual covenants and agreements herein contained, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1
1.DEFINITIONS.
1.1Definitions. As used in this Agreement, the following terms have the meanings set forth below:
[**]
[**]ACDBE Program” has the meaning given in Section 11.5.1.
“Additional Payment Obligations” has the meaning given in Section 4.12.
“Additional Port Authority Requirements” means, collectively, any permits, documents and requirements (other than the Lease and the Operator Permit) as have been or may hereafter be required by the Port Authority in connection with the development, construction, leasing, management, marketing and operation of the Concession Area.
“Adjusted Gross Receipts” means for the applicable period of determination, (x) Gross Receipts for such period minus (y) any Gross Receipts related to foreign currency transactions (including the spread earned on any exchange or foreign currency transactions (whether as a currency exchange service or in connection with the sale of merchandise or services)) for such period.
“Affiliate” means, with respect to any Person, any other Person, directly or indirectly, through one or more intermediaries, who or which Controls, is Controlled By or is Under Common Control With such Person.
“Agreement” has the meaning given in the Preamble.
“Airport” has the meaning given in the Recitals.
“Airport Concession Disadvantaged Business Enterprise” or “ACDBE” has the meaning given in Section 11.5.1(a).
“Airport Rules & Regulations” means individually and collectively, applicable rules, regulations, policies, manuals, publications, standards, practices and guidelines issued or published by the Port Authority (including, without limitation, any bulletin, directive or other official instruction issued by the General Manager of the Airport or the Chief Security Officer of the Port Authority and any code of ethics established by the Port Authority applicable to lessees and/or sublessees, contractors, furnishers of services or other Persons at the Airport); in each case, as may be amended, revised, supplemented or otherwise modified from time to time pursuant to a rules and regulations change.
2
“Alteration Application” means the Tenant Alteration Application (PA 531), as the same may be amended, modified, supplemented or substituted, from time to time, by the Port Authority. As of the Effective Date, the form of the Alteration Application is currently located at https://www.panynj.gov/content/dam/port-authority/pdfs/tenant-construction-and-alteration-process/PA%20531.pdf.
“American” has the meaning given in the Preamble.
“American Indemnitees” has the meaning given in Section 15.1.1.1.
“American Reserved Uses” means, collectively, the following uses, operations or installations reserved by American:
(a)automated teller machines, automated banking and similar financial services; provided, however, that Retail Manager may sublease space to retail bankers and currency exchanges, in each case, for automated teller machines;
(b)insurance and travel services;
(c)display racks for copies of publications by American or any of its Affiliates;
(d)(i) private lounges or clubs intended for the use of select passengers as determined by American (including, but not limited to, passengers with a membership for such lounge or club or traveling on a qualifying airline class) and (ii) a potential cafeteria, vending machines or other food service area intended for the exclusive use of American’s work force;
(e)terminal wayfinding and informational signage in and on any Food Courts and/or Food Halls or other areas that are open to the public and are deemed to be “common areas” by American; and
(f)any other uses of the Concession Area by American (other than those explicitly set forth in the Concession Program, e.g., food and beverage, specialty retail stores, news/convenience, duty free, foreign currency exchange, etc.), in areas that are (i) open to the public and not leased exclusively by either American or Retail Manager to any third party, (ii) deemed “common areas” by American, and (iii) that are not comprised of any portion of any Subtenant Premises.
“American’s Allocated Share” has the meaning given in Section 4.7.
“Annual Rental Statements” has the meaning given in Section 12.1.3.3.
“Applicable Law” or “Applicable Laws” shall mean any statute, law, code, regulation, ordinance, rule, common law, judgment, judicial or administrative order, decree, directive or other requirement having the force of law or other governmental restriction (including those resulting from the initiative or referendum process) or any similar form of decision of or determination by any Governmental Authority (including any applicable regulation, order or statement of policy of the Administrator of the FAA or any other governmental officer or body having jurisdiction over the enforcement of the obligations of the Port Authority under federal law), including any Environmental Requirements, whether taking effect before or after the Effective Date, in each case, as amended, revised, supplemented or otherwise modified from time to time.
3
For the avoidance of doubt, the term “Applicable Laws” includes FAA Grant Assurances, TSA-issued requirements, Passenger Facility Charge (PFC) Program assurances and decisions and the Airport’s operating certificate, but excludes the Applicable Standards.
“Applicable Standards” shall mean (i) the Rules and Regulations, (ii) Good Order Requirements, (iii) that certain Airport Security Guidelines Manual for Port Authority of New York and New Jersey Airports promulgated by the Port Authority, (iv) that certain Port Authority Tenant Construction and Alteration Process (TCAP) Manual, (v) the Port Authority Airport Customer Experience Performance and Standards Manual, Concessionaire Street Pricing Standards and Procedures Manual, and Value for Money Standards and Guidance and (vi) all applicable codes, standards, regulations, manuals, references, guidelines, policies, specifications, handbooks and advisory circulars, including such codes, standards, regulations, manuals, references, guidelines, policies, specifications, handbooks, advisory circulars and similar documents referenced within this Agreement issued or published by the Port Authority or a Governmental Authority and any similar applicable documents referenced in the Lease, as amended, revised, supplemented or otherwise modified from time to time.
“Application” has the meaning given in Section 4.11.3.
“Assignment and Assumption Agreement” has the meaning given in Section 3.3.
“Assistant Concession Manager” has the meaning given in Section 7.2.4.
“Background Intellectual Property” has the meaning given in Section 15.7.
“Base Building” means the subflooring, ceiling structure, demising walls, utilities (including all conduits, lines, pipes, etc.), infrastructure and other base building improvements, structures and fixtures located in the Concession Area, including floor, heating ventilating and air conditioning systems (“HVAC”), fire alarm system, fire sprinkler system, water, waste water and sewer, etc. and any other utility services for the intended general concessions uses of the Subtenant Premises.
[**]
“Business Day” means any day other than a Saturday, Sunday or a day on which banking institutions in New York, New York are authorized or obligated by law or executive order to be closed.
“Business Statistics Report” has the meaning given in Section 12.4.
4
“Casualty Termination” means a termination by American of this Agreement pursuant to Sections 15.4.1.2, 15.4.2, 15.4.3 or 15.4.4 hereof, so long as the casualty resulting in American’s right to so terminate was not caused, directly or indirectly, by Retail Manager or any of its agents, contractors or invitees (for the purpose of the definition of “Casualty Termination,” a Subtenant will not be deemed an agent, contractor or invitee of Retail Manager).
“Claimant” has the meaning given in Section 14.1.2.8.
“Claims” has the meaning given in Section 15.1.1.1.
“Commencement Date” has the meaning given in Section 3.1.
“Common Area Maintenance Fee” means an amount to be invoiced as a separate line item and collected from Subtenants by Retail Manager for the purpose of reimbursing, without profit, all of Retail Manager’s actual and commercially reasonable out-of-pocket expenses incurred in order to maintain and service common areas of the Concession Area, including, but not limited to, the food court, public and/or food hall seating areas and other designated common areas of the Concession Area. These expenses include, without limitation: floor cleaning (sweeping and mopping) and storefront cleaning services and cleaning of food court amenities, furnishings and equipment; management of the truck docks for Subtenant deliveries and distribution and delivery vehicle escort services; trash removal; and food court chairs and tables. Retail Manager will implement an equitable and reasonable formula to calculate and allocate this fee among relevant Subtenants (e.g., per square feet, by concession type).
“Conceptual Plans” has the meaning given in Section 5.2.1.
“Concession Area” means (i) until any portion of the Existing Concession Area, which is not also a part of the Proposed Concession Area, is vacated by any Subtenant and until any Concession Area Work required in such portion of the Existing Concession Area pursuant to the Development Plan or Transition Plan or otherwise to restore such area to a condition matching the surrounding areas of the Terminal has been completed, the Existing Concession Area together with the Proposed Concession Area and (ii) thereafter, the Proposed Concession Area.
“Concession Area Base Work” means all Concession Area Work which is not Subtenant Premises Work, which shall include alterations and improvements made to the Base Building and common areas within the Concession Area, including, without limitation, installation of lighting and flooring, removal of moving walkways in the concourses, preparation work to the Base Building located within the Concession Area for the Subtenant Premises Work, common area seating in the Food Court and other common areas within the Concession Area and any other items required pursuant to, or necessary to implement, the Development Plan and the Transition Plan.
“Concession Area Work” has the meaning given in the definition of “Work” in this Section 1.1.
“Concession Manager” means an employee of Retail Manager charged with the responsibility to manage and oversee the day-to-day operations and management of the Concession Area and the Concession Program, as further explained in Section 7.2.4.
“Concession Program” has the meaning given in Section 7.3.
“Concession Program Standards” has the meaning given in Section 7.1.
5
“Concession Solicitations Process” means the detailed competitive solicitation process to procure qualified Subtenants for the Concession Area as described in clause (x) of Section 7.3 as approved by the Port Authority and American.
“Concession Standards Checklist” has the meaning given in Section 7.3.
“Concourse B” means Concourse B of the Terminal.
“Concourse B-East Moving Walkway” means the moving walkway in the east portion of Concourse B, as reflected on Exhibit G-2.
“Concourse B-West Moving Walkway” means the moving walkway in the west portion of Concourse B, as reflected on Exhibit G-2.
“Concourse C” means Concourse C of the Terminal.
“Concourse C Moving Walkways” means the Concourse C-East and Concourse C-West sets of walkways in Concourse C, as reflected on Exhibit G-2.
“Construction Cost” has the meaning given in Section 5.2.3.
“Construction Permit” means a construction permit, or other Port Authority authorizing document, issued by the Port Authority, permitting certain work to be performed at the Concession Area in accordance with the terms thereof.
“Contract” means any agreement, and any supplement or amendment thereto, between Retail Manager and a Contractor, and any Contractor and any other Person at all tiers, to perform any part of the Concession Area Work or the operations of the Terminal or provide any materials, equipment or supplies for any part thereof.
“Contractor” means any Person with whom Retail Manager has entered into any contract, and any other Person with whom any Contractor has further subcontracted any part of the Work or the operations and maintenance of the Concession Area, at all tiers.
“Contractor Materials” has the meaning given in Section 15.7.
“Control” means the direct or indirect possession of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise (including any entity in which a Person (including any general or limited partner, managing and non-managing member or shareholder of such Person) has an ownership interest); and the terms “Controls”, “Controlled By” and “Under Common Control With” shall have the meanings correlative to the foregoing.
“CPI-U” means the Consumer Price Index for all Urban Consumers, New York-Northern New Jersey-Long Island, NY-NJ-CT (All Items, unadjusted 1982-84 = 100) published by the Bureau of Labor Statistics of the United States Department of Labor.
“Dedicated Terminal 8 Materials” has the meaning given in Section 15.7.
“Depreciation Schedule” means a schedule reflecting the monthly amortization of the Eligible Costs for Fixed Improvements installed or Refurbishments made by Retail Manager and/or by a Subtenant
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in the Concession Area, which schedule must be approved by American and shall reflect amortization on a straight-line basis during the lesser period of either (i) five (5) years or (ii) the length of time remaining in the Term of this Agreement. Any schedule submitted by Retail Manager or Subtenants for this purpose shall not be deemed a “Depreciation Schedule” until such schedule is approved in writing by American, which approval shall not be unreasonably withheld, delayed or conditioned. If American does not respond at all within thirty (30) days of the submission of a Depreciation Schedule, the schedule shall be deemed accepted and approved by American. Whenever a Depreciation Schedule is accepted by American for Refurbishments, any un-amortized investment in or Depreciation Schedule for replaced or affected prior Fixed Improvements (or prior Refurbishments, as the case may be) shall be deemed eliminated for the purposes of this Agreement.
“Design Guidelines” has the meaning given in Section 7.4.1.
“Development Period” refers to the period commencing on the Effective Date and ending on the date upon which development work is substantially complete (as reasonably and mutually agreed by Retail Manager and American and memorialized in writing executed by both such parties).
“Development Plan” has the meaning given in Section 6.1.9.2.
“DOT” means the United States Department of Transportation, and any successor agency, office or department thereto.
“Early Termination” has the meaning given in Section 3.2.
“Effective Date” has the meaning given in the Preamble.
“Eligible Costs” means, with respect to any investment in Fixed Improvements or Refurbishments made by Retail Manager or a Subtenant (including, but not limited to with respect to the Concession Area Base Work), the following: (i) directly contracted construction costs, (ii) architectural and engineering fees, construction management fees and the cost to obtain the applicable permits, which amounts under this clause (ii) shall not exceed 12% of the contracted construction costs, unless otherwise approved by American in writing, (iii) permanent fixtures, including any furniture and equipment and custom-built “trade fixtures” which constitute fixtures under applicable law, installed for direct use in the Concession Area, (iv) amounts for tenant improvements which Retail Manager is otherwise obligated to reimburse a Subtenant under an approved Sublease and Depreciation Schedule as the result of an Early Termination that occurs due to events described in clauses (ii), (iv), (vi), or (vii) of Section 3.2, or due to a default by American of this Agreement pursuant to Section 14.1.3 hereof (after giving effect to the grace and cure periods set forth in such Section), or pursuant to Section 2.3.4(b), or due to a Casualty Termination (but only to the extent that American actually receives insurance proceeds related to the applicable casualty (and, in such event, the Eligible Costs shall not exceed the amount of such insurance proceeds net of costs and expenses incurred by American in connection with pursuing such insurance proceeds); it being understood that in no event shall American be required to reimburse Retail Manager for any Eligible Costs to the extent that Retail Manager or any Subtenant receives insurance proceeds for damage to improvements to which such Eligible Costs are related) and (v) Key Money. Notwithstanding the foregoing, the definition of Eligible Costs may not include: (a) costs in excess of 110% of the estimated costs for Fixed Improvements provided by Retail Manager to American as part of the preliminary deal approval to be sought in respect of any individual prospective Subtenant under Section 6.1.3, unless otherwise specifically approved by American in writing, (b) any overhead, financing costs (e.g., loan origination fees or interest, legal fees or any non-construction-related cost), (c) amounts paid to any Affiliate of Retail Manager or Subtenant, unless (A) such Affiliate obtains the applicable work through a competitive bid process where non-Affiliates submitted bona fide proposals or (B) with respect to Affiliates of Retail Manager, Retail Manager has obtained quotes for such work from at least three (3) non-Affiliate contractors and has determined in its reasonable good faith judgment that such Affiliate’s costs are reasonable and substantially similar to what could be obtained in an arm’s length transaction or (d) any investments made as equity investments into Retail Manager.
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In addition, to qualify as Eligible Costs, disbursements must be supported by the certificate referenced in Section 5.2.4 and the documentary evidence of payment as described in Section 5.2.5. For the purposes of early termination of this Agreement, Retail Manager’s Eligible Costs shall include Retail Manager’s actual and reasonable costs for the items described in subclauses (i)-(iii) above, approved in advance in writing by American, for Fixed Improvements to office space in the Concession Area allocated to Retail Manager under this Agreement, which may not exceed $125 per square foot (unless otherwise specifically approved by American in writing), and which must otherwise be in compliance with the procedures applicable to Subtenant Fixed Improvements in this Agreement.
“Enplaned Passenger” means any passenger determined by American to have boarded an aircraft at the Terminal, including passengers who may disembark and re-board the same aircraft as part of the same flight itinerary, but excluding passengers, such as international in-transit passengers, from international flights who are restricted from exposure to the Concession Area.
“Environmental Requirements” means all common law and all past, present and future laws, statutes, enactments, resolutions, regulations, rules, directives, ordinances, codes, licenses, permits, orders, memoranda of understanding and memoranda of agreement, guidances, approvals, plans, authorizations, concessions, franchises, requirements and similar items of all governmental agencies, departments, commissions, boards, bureaus or instrumentalities of the United States, states and political subdivisions thereof, all pollution prevention programs, “best management practices plans,” and other programs adopted and agreements made by the Port Authority (whether adopted or made with or without consideration or with or without compulsion), with any government agencies, departments, commissions, boards, bureaus or instrumentalities of the United States, states and political subdivisions thereof, and all judicial, administrative, voluntary and regulatory decrees, judgments, orders and agreements relating to the protection of human health or the environment, the foregoing to include without limitation:
(i)all requirements pertaining to reporting, licensing, permitting, investigation and remediation of emissions, discharges, releases or threatened releases of Hazardous Substances into the air, surface water, groundwater or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Substances, or the transfer of property on which Hazardous Substances exist;
(ii)all requirements pertaining to the protection from Hazardous Substances of the health and safety of employees or the public; and
(iii)the Atomic Energy Act of 1954, 42 U.S.C. Section 2011 et seq.; the Clean Water Act also known as the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section 136 et seq.; the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq.; the Superfund Amendments and Reauthorization Act of 1986, Section 2701 the et seq.; Emergency Planning and Community Right to Know Act, 42 U.S.C. Section 11001 et seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101 et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Safe Drinking Water Act of 1974, 42 U.S.C. Sections 300f-300h-ll et seq.; the Oil Pollution Act, 33 U.S.C. Section 2701 et seq; the National Environmental Policy Act, 42 USC Section 4321 et seq.; the State Environmental Quality Review Act (SEQRA), NY ECL Section 8-0101 et seq.; the New York State Environmental Conservation Law; the New York State Navigation Law; together, in each case, with any amendment thereto, and the regulations adopted, guidances, memoranda and publications promulgated thereunder and all substitutions thereof and any other analogous current or future federal, state municipal, city or local laws;
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And, with respect to items (i) through (iii) above, in the event that there shall be more than one compliance standard, the standard for any of the foregoing shall be that which requires the lowest level of a Hazardous Substance.
“EPA” means the United States Environmental Protection Agency, and any successor agency, office or department thereto.
“Event of Default” has the meaning given in Section 14.1.1.
“Excluded Area” has the meaning given in Section 2.1.
“Existing Concession Area” has the meaning given in the Recitals.
“Existing Subleases” has the meaning given in Section 6.4.
“Existing Tenant(s)” means the existing subtenants that are the subject of the leases described on Exhibit D.
“Expiration Date” has the meaning given in Section 3.1.
“FAA” means the United States Federal Aviation Administration, and any successor agency, office or department thereto.
“FAA Nondiscrimination Requirements” has the meaning given in Section 11.2.1.2.
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“Final Drawings” has the meaning given in Section 5.2.1.
“Fixed Improvement Deadline Breach” has the meaning given in Section 5.4.
“Fixed Improvements” means the permanent improvements, structures and fixtures installed by Retail Manager and/or by Subtenants in the Concession Area, including, without limitation, to any portions of the Base Building located in the Concession Area, in Retail Manager’s office, to prepare a locale for issuance of an occupancy permit and otherwise finish it out for the operations of a given Subtenant, and any Refurbishments which may be made subsequently in accordance with Section 8.5. Fixed Improvements may include, but are not limited to, finish-out work on floors, ceilings, demising walls and store facades, storefront signage, the panel box and hook-ups to utilities wires and conduits infrastructure, decorations, shelves, counters, lighting and interior design and construction work necessary in general to accommodate the operation of a specific Subtenant, or by Retail Manager in office space in the Concession Area allocated to Retail Manager, all as approved in accordance with Section 5.2.
“Food Court” or “Food Hall” means, any “food court,” “food hall” or any other designated common areas within the Concession Area out of which restaurant operators operate and which includes all associated seating areas and support areas.
“Force Majeure” means, strictly in relation to the conditions that may cause a party to be temporarily, partially or wholly prevented from performing its obligations to the other party under this Agreement, and not for any other purpose or for any benefit of a third party: (i) strikes, boycotts, lockouts, labor disputes, labor disruptions (not caused by a pandemic), work stoppages or slowdowns, all unless involving employees of the party claiming the Force Majeure; (ii) trade embargoes, natural disasters, acts of terrorism, orders of a governmental authority (including, the FAA, the DOT, the TSA and the EPA or defense authorities), extreme weather conditions, cyber-attacks, civil riots, rebellion, or sabotage, war (declared or undeclared), foreign invasion, or insurrection; (iii) failure by the Port Authority to perform its obligations under the Lease or the Operator Permit or other acts or omissions of the Port Authority, except as otherwise provided in Section 5.2.2; or (iv) any other similar circumstances for which an affected party is not responsible, which are not foreseeable, and which are not within the affected parties’ ability to control in the exercise of commercially reasonable efforts. Notwithstanding anything else in this Agreement, however, (A) in no event shall any Force Majeure event excuse timely payment of any amounts due under this Agreement, (B) lack of funds, inability to obtain financing, change in general economic conditions (including, but not limited to, economic recession, increased cost of performance and/or increased cost of labor or materials), and/or changes in specific economic condition or status of an affected party shall not be a basis for delay or prevention of any obligation under this Agreement, and (C) while a Suspension would result in Retail Manager not being able to perform its obligations hereunder and such failure shall be excused and not be deemed a default, neither party hereto may claim that a Suspension is a Force Majeure event which (I) excuses American’s nonperformance of the obligations set forth in Sections 3.2 and 3.4 hereof, or (II) waives either party’s termination rights set forth in Section 3.2 which relate to a Suspension.
“Four-Party Subtenant Consent Agreement” means a four-way permit, a consent agreement or such other document(s) as may be prescribed by the Port Authority, by and among the Port Authority, American, the applicable Subtenant, and Retail Manager.
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“GAAP” means generally accepted accounting principles in the United States of America, as set forth in the opinions and pronouncements of the American Institute of Certified Public Accountants’ Accounting Principles Board and Financial Accounting Standards Board or in such other statements by such other entity as may be in general use by significant segments of the accounting profession, to the extent such principles are applicable to the facts and circumstances on the date of determination.
“Good Order Requirements” means actions instituted by the Port Authority to preserve, maintain, improve or restore good order at the Airport, which result in, or alleviate circumstances which derogate from, the Port Authority’s ability to (i) provide predictable, consistent or non-discriminatory service to Airport users or (ii) mitigate the risks that chaotic or uncontrolled situations arise on Airport premises which may, in the Port Authority’s sole discretion, lead to unsafe or insecure conditions. A change which provides only an economic advantage to the Port Authority and serves no public purpose, and does not enhance the operations or efficiency of operating the Airport, whatsoever, will not be considered to require “good order” actions.
“Governmental Authority” means any federal, state, municipal and other governmental authority of any state, nation or government, except that they shall not be construed to include the Port Authority.
“Gross Receipts” means and includes all monies paid or payable to each and every Subtenant (which term includes, for the purposes of this definition, any permitted assignees of Subleases or sublicenses/invitees of Subtenants, and any other concessionaires or occupants who may be permitted to conduct concession operations within the Concession Area) whether for cash, credit or otherwise, for sales made or services rendered at or from the Terminal or Airport regardless of when or where the order therefor is received and outside the Terminal or Airport if the order is received at the Terminal or Airport, retail display allowances or other promotional incentives (the gross amounts thereof, not net of expenses) received from vendors, suppliers or manufacturers and other revenues of any type arising out of or in connection with any Subtenant’s operations at the Terminal or Airport, including, without limitation: proceeds from the sale of gift and merchandise certificates (but only when such certificates are treated as a sale from Subtenant Premises pursuant to a Subtenant’s record keeping system), mail, catalogue (as further explained below), closed circuit television, computer, other electronic or telephone orders received or filled; deposits not refunded to purchasers, orders taken at the Concession Area (although such orders may be filled elsewhere); sales through vending machines or other devices; the spread earned on any exchange or foreign currency transactions whether as a currency exchange service or in connection with the sale of merchandise or services; and all insurance proceeds received due to loss of gross earnings under any Subtenant’s business interruption insurance coverage. Catalogue sales generated from catalogues distributed from Subtenant Premises will be included in Subtenant’s calculation of Gross Receipts. For this purpose, catalogues displayed in Subtenant Premises will include a tracking number unique to the Subtenant Premises that allows for an auditable method for tracking such sales. A “sale” shall be treated as consummated for the purposes of this definition, and the entire amount of the sales price shall be included in Gross Receipts and deemed received at the time of determination of the amount due for each transaction, whether for cash, credit or otherwise, and not at the time of billing or payment. No deduction shall be allowed for uncollected or uncollectible credit accounts or “bad” checks.
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Gross Receipts shall not include: (a) Any sums collected for any federal, state, county and municipal sales taxes, so-called luxury taxes, use taxes, consumer excise taxes, gross receipts taxes and other similar taxes now or hereafter imposed by law upon the sale of merchandise or services but only if separately stated from the sales price and only to the extent paid by Subtenants to any duly constituted governmental/taxing authority; (b) The exchange of merchandise between the stores or warehouses owned by or affiliated with any Subtenant, if any, where such exchanges of goods or merchandise are made solely for the convenient operation of the business of such Subtenant and not for the purpose of consummating a sale which has theretofore been made at, in, from or upon the Concession Area or for the purpose of depriving American or the Port Authority of the benefit of the sale which otherwise would be made at, in, from or upon the Concession Area; (c) The amount of any cash or credit refund made upon any sale where the merchandise sold, or some part thereof, is thereafter returned by a purchaser and accepted by the Subtenant to which it is returned; (d) The proceeds of sale of fixtures, equipment or other items of property which are not stock in trade and not in the ordinary course of any Subtenant’s business; (e) Any receipts of a Subtenant which arise from its operations under any other agreement with American or the Port Authority at the Airport and are subject to a percentage fee or percentage rent under that agreement, (f) Shipping, delivery, alteration workroom and gift wrapping charges if there is no profit to a Subtenant and such charges are merely an accommodation to customers; (g) Receipts in the form of refunds from or the value of merchandise, services, supplies or equipment returned to vendors, shippers, suppliers or manufacturers including volume discounts received from a Subtenant’s vendors, suppliers or manufacturers; (h) income actually received by a Subtenant from manufacturers of goods displayed for sale at the Subtenant’s Premises (e.g., cosmetics, perfume) if the following conditions are fully and strictly satisfied with respect to such income: (i) the manufacturer specifically identifies the time period to which the income relates, (ii) reimbursement from the manufacturer to the Subtenant in connection with employees (1) who are on the Subtenant’s payroll for the operations permitted under the respective Four-Party Subtenant Consent Agreement and (2) who are on such payroll during the time period to which the reimbursement relates, (iii) the manufacturer and the Subtenant have previously entered into a written agreement which sets forth the material terms of their arrangement with regard to the reimbursement arrangement which is the subject of this clause (h), and (iv) the Subtenant provides to the Port Authority written documents and records substantiating the matters listed in sub-clauses (i) through (iii). Without limiting the generality of the foregoing, any and all income which would otherwise qualify as being excludable from Gross Receipts for purposes of this Agreement shall be includable in gross receipts if and to the extent that the income from the manufacturer which is associated with an identified employee during a calendar year exceeds such identified employee’s base salary for the same calendar year. Such determination shall be made separately with respect to each employee of the Subtenant and with respect to each calendar year; (i) Customary discounts given by a Subtenant on sales of merchandise or services to its own employees, if separately stated, and limited in amount to not more than 1% of Gross Receipts per month; (j) Mandatory discounts, if separately stated, of 10% given by Subtenants on sales of merchandise or services to employees of Retail Manager, American, the Port Authority, other airline lessees in the Terminal, and other persons employed at the Terminal; (k) Gratuities for services performed by employees of a Subtenant which are paid by a Subtenant or its customers to such employees, except to the extent Subtenant may be entitled to receive a portion of such gratuities; (l) The sale or transfer in bulk of the inventory of a Subtenant to a purchaser of all or substantially all of the assets of such Subtenant in a transaction not in the ordinary course of such Subtenant’s business; and/or (m) Except with respect to insurance proceeds received due to loss of gross earnings under any Subtenant’s business interruption insurance coverage as provided above and/or insurance proceeds that may be payable to American or the Port Authority under such coverage, receipts from all other insurance proceeds received by a Subtenant as a result of a loss or casualty.
“Hazardous Substances” means any pollutant, contaminant, toxic or hazardous waste, dangerous substance, noxious substance, toxic substance, flammable, explosive or radioactive material, urea formaldehyde foam insulation, asbestos, polychlorinated biphenyls, radon, chemicals known to cause cancer, endocrine disruption or reproductive toxicity, petroleum and petroleum products, fractions, derivatives and constituents thereof, of any kind and in any form, including without limitation oil, petroleum, fuel, fuel oil, sludge, crude oil, gasoline, kerosene, and mixtures of, or waste materials containing any of the foregoing, and other gases, chemicals, materials and substances which have been or in the future shall be declared to be hazardous or toxic, or the removal, containment or restriction of which have been or in the future shall be required, or the manufacture, preparation, production, generation, use, maintenance, treatment, storage, transfer, handling or ownership of which have been or in the future shall be restricted, prohibited, regulated or penalized by any federal, state, county, or municipal or other local statute or law now or at any time hereafter in effect as amended or supplemented and by the regulations adopted and publications promulgated pursuant thereto.
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“Intellectual Property Rights” means all (i) patents, patent disclosures, and inventions (whether patentable or not and whether in application or registered patent status), (ii) trademarks, service marks, trade dress, trade names, logos and corporate names, together with all of the goodwill associated therewith, (iii) domain names, URLs and other digital identifiers, (iv) copyrights and rights in copyrightable works (including in software), and rights in data and databases, (v) trade secrets, know-how, and other confidential information, and (vi) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Invalidation Provision” has the meaning given in Section 15.1.4.
“Joint Marketing Fund” has the meaning given in Section 7.5
“Joint Marketing Fund Fee” has the meaning given in Section 7.5.1.
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“Late Interest” means the lower annual interest rate, compounded monthly, of (i) the Prime Rate plus 5%, or (ii) the highest rate allowed under applicable law.
“Lease” has the meaning given in the Recitals.
“Lease Year” means (x) with respect to the calendar year in which the Development Period ends, the period commencing on the Minimum Guaranteed Rental Effective Date and ending on December 31st of such year and (y) with respect to periods after the year in which the Development Period ends, each 12 consecutive month period commencing on January 1st and ending on December 31st. For the avoidance of doubt, with respect to any determination or calculation under this Agreement that involves a partial Lease Year, such determination or calculation shall take into account the applicable prorated amount of such Lease Year.
“Local Business Enterprise” or “LBE” has the meaning set forth in Exhibit K.
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“Metro Area” means the Greater New York City-Northern New Jersey Metropolitan Area.
“Mid-Term Reinvestment” means the mid-term reinvestment described in Section 5.2.3.
“Minimum Guaranteed Rental” has the meaning given in Section 4.3.
“Minimum Guaranteed Rental Effective Date” has the meaning given in Section 4.6.
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“Minimum Standards” has the meaning given in Section 7.2.1.
“Minimum Wage Policy” has the meaning given in Section 7.8.1.
“Minority” has the meaning given in Exhibit J.
“Minority Business Enterprise” or “MBE” means any business enterprise which is at least fifty-one percent owned by, or in the case of a publicly owned business at least fifty-one percent of the stock of which is owned, by citizens or permanent resident aliens who are minorities and such ownership is real, substantial and continuing.
“Mobile Application” means those certain technology, processes and operations that enable customers to digitally search, browse and purchase retail, duty free, and food and beverage products and services, including quick and easy fulfillment options such as in-terminal delivery, pre-order and pick-up.
“Monthly Rental Statement” has the meaning given in Section 12.1.3.1.
“Office Space” has the meaning given in Section 5.5.
“Operating Expenses” has the meaning given in Section 8.1.
“Operator Permit” means an agreement executed by and between Retail Manager, the Port Authority and, if required by the Port Authority, consented to by American, containing, among other things, the Port Authority’s consent to the transactions contemplated by this Agreement and its approval of Retail Manager.
“Original MGR” has the meaning given in Section 4.3.
“OSHA” means the United States Occupational Safety and Health Administration, and any successor agency, office or department thereto.
“Person” means and includes an individual, corporation, partnership, limited liability company, joint venture, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department, authority or agency thereof.
“Plans” means the completed set of architectural working plans, drawings and specifications and engineering drawings and specifications prepared by the architect/engineer of record for the construction of approved Final Drawings in respect of Fixed Improvements or Refurbishments, which shall include the specific phases of construction.
“Point-of-Sale Terminal” has the meaning given in Section 12.2.
“Port Authority” has the meaning given in the Recitals.
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“Port Authority Design Guidelines” means the Port Authority Design Guidelines promulgated by the Port Authority and which are currently set forth at https://www.panynj.gov/port-authority/en/business-opportunities/engineering-available-documents.html, as the same may be amended, modified or supplemented from time to time.
“Port Authority Reserved Uses” means, collectively, the following uses, operations or installations reserved by the Port Authority:
(A)advertising (other than branding and promotions by Subtenants, and other Persons as excluded in the Lease, in non-public spaces), including static display, interactive display (other than interactive displays for wayfinding, operations use related audio-visual display and broadcast), audio-visual display and broadcast; other than American’s right to retain control of the placement of the particular advertising within the Concession Area and the right to reject any proposed advertising at the Concession Area;
(B)except as otherwise provided in the Lease, public telephones (sometimes also referred to as “pay phones” or “pay telephones”), pre-paid phone cards and other communications services and facilities, including any technology or system that substitutes for, replaces or is used in conjunction with the technology commonly known as “Wi-Fi” and also including all Port Authority-owned or operated information and communications technology infrastructure for common Airport use; provided that American shall have the right to control the placement of telephones, phone banks, phone kiosks, and other public communications services (e.g., internet kiosks) within the Concession Area, and the right to deny upon reasonable grounds the placement of any particular pay phone facility, facsimile transmission machine or public;
(C)except as otherwise provided in the Lease, “cellphone”/cellular technology and any technology or system that substitutes for, replaces or is used in conjunction with cellphone/cellular technology;
(D)vending machines other than automated retail machines and food and beverage vending machines in non-public spaces; and
(E)a Welcome Center or other location which offers a variety of services for passengers; provided, however, that, airlines permitted under the Lease shall be permitted to offer and provide concierge services to their airline passengers so long as such services are provided free of charge (i.e., no additional charges or fees shall be paid or payable by an airline passenger in connection with such services beyond the applicable airline ticket price);
(F)ground transportation (including vehicle rentals reservations); and
(G)provision of on-airport baggage carts (other than shopping carts made available free of charge to retail shoppers within the portions of the Premises designated for retail operations) or other on-airport baggage-moving devices (other than the baggage system); provided that American shall retain the right to control the placement of baggage cart stations within the Concession Area and the right to reject any on-airport baggage carts at the Concession Area.
“Port Authority’s Allocated Share” has the meaning given in Section 4.7.
“Port of New York District” has the meaning given in Article II of the Compact under which the Port Authority was established.
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“Predecessor Concession” has the meaning given in Section 6.1.1(z).
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“Premises” has the meaning given in the Recitals.
“Prime Rate” means the average interest rate per annum published in the national edition of The Wall Street Journal “Money Rates” section as of a relevant date of determination under this Agreement. If the Wall Street Journal ceases to publish such an average prime rate, the rate shall be such prime rate established by the commercial bank having an office in the City of New York with the highest net worth, and which is a member of the New York Clearing House Association, then establishing and publishing a prime rate, and if no such commercial bank shall establish a prime rate, the rate to be used for the purposes of this definition shall be a comparable rate for the purposes of establishing the cost of money as reasonably determined by American.
“Proposed Concession Area” has the meaning given in the Recitals.
“Refurbishments” shall mean the repair, replacement or upgrade of Fixed Improvements as required and approved under Section 8.5.
“Reimbursement Amounts” means (i) chargebacks paid by Subtenant to Retail Manager for Retail Manager’s performance of any construction or the making of any alterations for a Subtenant; (ii) payments of Retail Manager’s legal fees, late fees, default interest, costs of collection or damages suffered by Retail Manager as the result of a Subtenant default, except for those damages or amounts (A) representing base, guaranteed or percentage rental which is otherwise due to Retail Manager under such Sublease or (B) for breaches or defaults under the Sublease that adversely impact the Port Authority and/or American (it being understood that Retail Manager may retain an amount of such damages up to the amount necessary to directly reimburse itself for costs and expenses resulting from such breach); (iii) amounts collected pursuant to indemnity or hold harmless provisions of any Sublease; (iv) reimbursement for utility costs on a straight cost recovery basis with no markup; (v) any management or marketing fund otherwise permitted under this Agreement; and (vi) reimbursements by Subtenants of any loading, delivery, common area maintenance, insurance costs or taxes.
“Rental” has the meaning given in Section 4.1.
“Reserved Uses” means, collectively, the American Reserved Uses and the Port Authority Reserved Uses.
“Retail Manager” has the meaning given in the Preamble.
“Retail Manager Counterparty” has the meaning given in Section 7.8.2.
“Retail Manager’s Allocated Tax Share” means the proportion which the total number of square footage in the Concession Area, excluding any square footage devoted to Reserved Uses, bears to the total number of square footage at the Premises from time to time, which proportion shall be expressed as a fraction, the numerator of which is the total net number of square footage at the Concession Area, as adjusted for any space dedicated to Reserved Uses, and the denominator of which is the total number of square footage at the Premises.
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“RM Claims” has the meaning given in Section 15.2.
“RM Indemnitees” has the meaning given in Section 15.2.
“Rules and Regulations” means all rules and regulations governing the conduct and operation of American as may be promulgated from time to time from, among other governmental authorities, the FAA, the DOT, the TSA and the EPA, and any rules promulgated from time to time by American specifically for or otherwise affecting operations in the Terminal and Concession Area, provided that American’s rules do not have an unreasonable and material adverse discriminatory impact on concession operations within the Concession Area.
“Street Prices” means, with respect to each Subtenant, (i) if such Subtenant conducts a similar business in off-airport location(s) in the Metro Area, 110% of the price regularly charged by such Subtenant for the same or similar item in those off-airport locations; (ii) if such Subtenant does not conduct a similar business in off-airport location(s) in the Metro Area, 110% of the average price regularly charged in the Metro Area by similar retailers, as determined by American, for the same or similar items; (iii) if neither such Subtenant nor any other similar retailers sell a particular item in the Metro Area, 110% of the price regularly charged by such Subtenant or similar retailers, as determined by American, for the same or similar item in any other geographic area with a reasonable adjustment for any cost-of-living variance between such area and the Metro Area; and (iv) if such Subtenant is in the business of selling duty-free goods, 110% of the price regularly charged by such Subtenant or other similar retailer, as determined by American, for the same or similar duty-free item at other major airports serving large urban areas in the Northeast region of the United States, including, without limitation, the Airport. All of American’s determinations described above are nevertheless subject to compliance with Port Authority street pricing policies (as may be amended) in accordance with the Lease.
“Sublease” means a sublease, license, permit or concession agreement, or any other form of written agreement, however denominated, including any renewal or modification thereof, creating the right to use or occupy portions of the Concession Area which complies with, and was entered into in accordance with, Article 6 below.
“Sublease Required Opening Dates” means the dates to be set forth in each approved Sublease as the “Latest Rental Commencement Date.” The targeted Sublease Required Opening Dates are identified on Exhibit Q for specific portions of the Concession Area.
“Subtenant” and “Subtenants” means any Person having the right to occupy a portion of the Concession Area under a Sublease.
“Subtenant Design Handbook” means Retail Manager’s supplemental design criteria for Subtenant Premises attached as Exhibit E-1, having been approved as part of the Concession Program. Retail Manager shall have the right to update and amend the Subtenant Design Handbook, subject to American’s prior written approval, not to be unreasonably withheld.
“Subtenant Premises” means the portion of the Concession Area demised to a given Subtenant pursuant to the terms and conditions of its Sublease, or yet to be demised to a Subtenant under a Sublease
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after the related Base Building Work has been completed. Intended Subtenant Premises locations are identified on Exhibit B-2.
“Subtenant Premises Work” means the design and construction work with respect to any Subtenant Premises required pursuant to the terms and conditions of any applicable Sublease, which design, and construction work shall be in accordance with the terms and conditions of the Development Plan and Transition Plan.
“Subtenant Rental” means, with respect to any applicable period, all gross rents (including percentage-based rents, minimum guaranteed rents, and other forms of additional rent paid or payable to Retail Manager for such period from any Subtenant (regardless of whether such Minimum Guaranteed Rental is paid in cash)). For the avoidance of doubt, “Subtenant Rental” shall include, but not be limited to: (a) fees, late fees and liquidated damages (to the extent not constituting Reimbursement Amounts), (b) any separate rental for storage space within the Concession Area, (c) other miscellaneous charges that Retail Manager may be entitled to collect from a Subtenant pursuant to the respective Sublease, in each case, to the extent such fees or charges do not constitute the items described in clause (ii), (iii), (iv), (v) or (vi) of Section 6.1.7. “Subtenant Rental” shall not include: (i) amounts paid by a Subtenant to Retail Manager or American as reimbursements (whether in the form of damages or otherwise) for amounts expended by Retail Manager or American on behalf of the Subtenant, (ii) the items described in clause (ii), (iii), (iv), (v) or (vi) of Section 6.1.7, and (iii) payments to Retail Manager by American under this Agreement in consideration of the services provided by Retail Manager hereunder.
“Supplement and Assignment and Assumption with Consent” has the meaning given in Section 6.4.
“Suspension” means a suspension by the Port Authority of the operations of Retail Manager under Section 2(e)(i) (Terms & Conditions) of the Operator Permit.
“Target Entity” has the meaning given in Section 7.8.1.
“Taxes” means, collectively, any tax, fee, excise, levy, lien, duty, impost or similar charge assessed or imposed, including, without limitation, payments under any Taxing Agreement, and any interest penalties and additions to tax, by a governmental authority on, against or in connection with the lease, use, possession, equipping, operation or maintenance of the Concession Area, and any amounts paid or deemed paid in connection with the purchase, lease or use of goods and services at or for the Concession Area, including amounts paid or attributable to utilities generated, provided or consumed by or through Subtenants, Retail Manager, American or the Port Authority for the benefit of the Concession Area. Taxes exclude payments in lieu of taxes and federal or state taxes based on or determined by net income, net worth or American’s ongoing qualification to do business in general as a corporation (e.g., state franchise taxes). For purposes of clarity, it is the intent of the parties that Taxes shall not include (i) any real property taxes assessed on any portion of the Premises which is not the Concession Area, (ii) any real property taxes assessed on improvements to the base building which improvements are made by any party other than Retail Manager or the Subtenants, or (iii) any taxes assessed on rental paid by any party that is not Retail Manager or the Subtenants.
“Taxing Agreement” means any agreement, which may be entered into after the date of this Agreement between the Port Authority and/or American and the City of New York providing for taxes to be paid to the City of New York.
“Tenant Construction Manual” means the Tenant Construction and Alteration Process Manual which is currently set forth at https://www.panynj.gov/port-authority/en/business-opportunities/tenant-
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construction-and-alteration-process.html and such other construction manuals promulgated by the Port Authority, as may be amended, modified or substituted from time to time.
“Term” has the meaning given in Section 3.1.
“Terminal” has the meaning given in the Recitals.
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“Toxic or Hazardous Materials” means (a) hazardous or toxic chemicals, (b) Hazardous Substances, and (c) any materials containing hazardous or toxic chemicals or substance at levels or content which cause such materials to be classified as hazardous or toxic as then prescribed by the highest industry standards or by the then current levels or content as set from time to time by EPA or OSHA or as defined under 29 CFR 1910 or 29 CFR 1925 or other applicable governmental laws, rules or regulations.
“Trademark(s)” means the trademarks, trade names, logos, service marks, trade styles, trade dress and other proprietary identifying marks of American and its Affiliates, including American Eagle, Inc.
“Transition Plan” has the meaning given in Section 6.1.9.3.
“TSA” means the United States Transportation Security Administration, and any successor agency, office or department thereto.
“United States Bankruptcy Code” means Title 11 of the United States Code, 11 U.S.C. § 101, et seq., as the same may be amended from time to time, and any successor statute or statutes and all rules and regulations from time to time promulgated thereunder, and any comparable foreign laws relating to bankruptcy, insolvency or creditors’ rights or any other federal or state bankruptcy or insolvency law.
“Women-Owned Business Enterprise” or “WBE” means any business enterprise which is at least 51% owned by, or in the case of a publicly owned business at least 51% of the stock of which is owned, by women.
“Work” means the operations and maintenance of the Concession Area and all other work and services provided to, or contracted for by, Retail Manager to be performed at or with respect to the Concession Area, including, but not limited to, (1) design and construction work within the Concession Area required pursuant to, or to implement, the Development Plan and the Transition Plan, including any Concession Area Base Work and any Subtenant Premises Work (the “Concession Area Work”), (2) every award, contract, subcontract, purchase or other agreement relating to the provision of goods and/or services in connection with the Concession Area Work, the operations and maintenance of the Concession Area or any other services or work to be performed at, or provided with respect to, the Concession Area, (3) professional services (including, without limitation, architectural and engineering) relating to the Concession Area Work or the operations and maintenance of the Concession Area, and (4) every award, contract, subcontract, purchase or other agreement relating to the construction and/or development of the Concession Area, and any and all goods and services furnished in connection with the foregoing.
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2.SUBLEASED PREMISES.
2.1Sublease. American hereby subleases to Retail Manager the Concession Area upon the terms and conditions, and for the purposes, herein provided. Not included in the Concession Area is the following (collectively, the “Excluded Area”):
2.1.1the roof, the concrete slab floor and all perimeter walls of the Concession Area, except the inner surfaces thereof and the perimeter doors and windows. American has the right to place in the Concession Area (but in such manner as to not unreasonably interfere with Retail Manager’s or the Subtenants’ use of the Concession Area, unless required to comply with American’s obligations under the Lease) utility lines, telecommunication lines, cable and satellite television lines, shafts, pipes and the like, for the use and benefit of American and other tenants in the Terminal, and to replace, relocate, maintain and repair such lines, shafts, pipes and the like, in, over and upon the Concession Area. To the extent it is within American’s control, American will use commercially reasonable efforts to cause the lines, shafts, pipes and the like to be located underneath the concrete floor slab, above the finished ceiling, within finished columns or otherwise out of public view. Such lines, shafts, pipes and the like shall not be deemed to be part of the Concession Area;
2.1.2the portion of the Concession Area the Port Authority reserved exclusively to itself and its designees to implement, conduct, control and receive any rents, fees or profits with respect to any of the Port Authority Reserved Uses, as further described in Article 10;
2.1.3the portion of the Concession Area American reserved exclusively to itself and its designees to implement, conduct, control and receive any rents, fees or profits with respect to any of the American Reserved Uses, as further described in Article 10;
2.1.4hallways leading to storage areas to which Retail Manager is given access and which are not mainly used by Retail Manager or any Subtenants and which are identified in Exhibit S of this Agreement; and
2.1.5areas designated for Retail Manager’s sustainability initiatives, as further described in this Agreement.
2.2Appurtenant Rights. Retail Manager, and Subtenants through Retail Manager, shall have, as appurtenant to the Concession Area, the rights of ingress and egress in common with others to all common areas and facilities of the Premises, and such other rights of access to the Terminal as are reasonably necessary during usual business hours. Such appurtenant rights shall be subject to such reasonable rules, regulations, including security directives, from time to time, as are established by American or the Port Authority, consistent with the Lease, by notice to Retail Manager, or by authorized regulatory agencies, and to the right of the Port Authority and American to designate and change, from time to time, areas and facilities so to be used.
2.3Contraction, Expansion, and Relocation.
2.3.1Contraction. American may require that Retail Manager reduce the size of the Concession Area. If American shall exercise such right, (i) the portion of the Concession Area to be reduced shall cease to be leased to Retail Manager and shall no longer be subject to the terms of this Agreement and (ii) American shall use commercially reasonable efforts to identify, in its discretion, an alternative location which could replace the reduced portion of the Concession Area.
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If the net contraction of the Concession Area under this Section 2.3 exceeds 15% of the total square footage available for Subtenant Premises as identified on Exhibit B-2 at any time during the Term, and Retail Manager demonstrates that such contraction is having a materially adverse impact on Subtenants’ Gross Receipts to Retail Manager that is distinct from other conditions that may be adversely affecting the concession operations, then, at Retail Manager’s request, American will engage in good faith negotiations with Retail Manager for up to ninety (90) days regarding a possible equitable reduction of the Minimum Guaranteed Rental and/or an adjustment of the Management Fee.
2.3.2Expansion. If additional concession space becomes available in the Terminal (other than space used for Reserved Uses), then Retail Manager shall have the right of first offer to include such additional space in the Concession Area pursuant to this Section 2.3.2. Prior to American offering such additional space to another third party concession manager or tenant (whether directly to one or more concessionaires or to an entity that otherwise manages concession areas), American shall notify Retail Manager in writing specifying the availability of such additional space and describing the types of concessions that American believes are best suited for such space. Upon receiving such notice, Retail Manager may elect to include such space in the Concession Area. The foregoing election of Retail Manager must be exercised by written notice delivered to American no later than sixty (60) days after Retail Manager is notified by American in writing that additional space has become available. If Retail Manager elects that such space shall be included in the Concession Area, then the parties shall negotiate in good faith towards executing a written instrument reasonably necessary to memorialize the foregoing. If Retail Manager fails to respond within such 60-day period or elects not to include such space in the Concession Area, then American shall determine the identity of the concession manager for such space in its sole discretion. Any work to the Base Building required in such additional space to make it suitable for concession operations is the responsibility of Retail Manager, at its expense, and must be completed in accordance with any Plans and subject to the prior written approval of American and the Port Authority, in their sole respective discretions. If there is a net expansion of the Concession Area under this Section 2.3 equal to 15% or more of the total square footage available for Subtenant Premises as identified on Exhibit B-2 at any time during the Term, and American demonstrates that such expansion is having a materially positive impact on Subtenants’ Gross Receipts to Retail Manager that is distinct from other conditions that may be causing any such material increase in Gross Receipts from concession operations, then, at American’s request, Retail Manager will engage in good faith negotiations with American for up to ninety (90) days regarding a possible equitable increase of the Minimum Guaranteed Rental and/or an adjustment of the Management Fee.
2.3.3Relocation. American may require that Retail Manager relocate all or part of the Concession Area to other space within the Terminal if the new space is reasonably comparable to the previous space in terms of the passenger traffic, size, and potential for generation of Gross Receipts (other than non-revenue generating spaces such as the Office Space). Any work required to be done to the Base Building required in such new space to make it suitable for concession operations is the responsibility of American, at its expense.
2.3.4Exercise of Rights. American may exercise its contraction and relocation rights under this Section 2.3 by giving not less than one hundred twenty (120) days’ prior written notice to Retail Manager, or at least as much notice as reasonably possible for contractions or relocations, the reasons for and timing of which are not within the control of American (e.g., because of a direct or indirect requirement by the Port Authority or other competent authority). In the event American exercises its right to cause a contraction or relocation of all or a portion of the Concession Area (not including carts, kiosks, and other portable or temporary facilities) from one location to another after the Concession Area has been opened to the public for business, American shall provide the following:
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2.3.5American shall have the right at any time and from time to time prior to and during the Term, in the interest of the efficient operation of the Terminal, to close, move or alter any common corridor, passageway, walkway or common area, including, without limitation, entrances, exits, passages, halls, corridors, aisles, stairways, elevators or escalators, within or around the Concession Area or to restrict or change the traffic on or through any such common corridor, passageway, walkway or common area, with due regard to not unreasonably restricting the use and occupancy of the Concession Area by the Subtenants. Neither Retail Manager nor Subtenants shall have any claim against American or the Port Authority for such action, nor shall such action by American release either Retail Manager or Subtenants from any of their obligations under this Agreement, the Operator Permit or any other agreement entered into with the Port Authority.
2.4Lease Between American and the Port Authority.
2.4.1This Agreement is subject and subordinate to the Lease, the Operator Permit and the Additional Port Authority Requirements.
2.4.2Retail Manager acknowledges that certain rights and duties of American regarding the operation of the Concession Area are defined and contained in the Lease.
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2.4.4Any amendment, supplement or extension of this Agreement that does not have the express written approval of the Port Authority shall be void ab initio and of no effect whatsoever. If the Lease is terminated on any account prior to the expiration of this Agreement, then this Agreement shall terminate simultaneously with such termination of the Lease unless the Port Authority shall notify Retail Manager and American in writing at or prior to such effective date of termination of the Lease that the Port Authority assumes all of the rights and obligations of American hereunder from and after such effective date of termination, it being understood that the Port Authority shall have the right, but not the obligation, to be assigned and to assume all of American’s rights and obligations under this Agreement, and further, it being acknowledged that the Port Authority shall have no obligation to enter into any form of non-disturbance or recognition agreement with any Retail Manager or any Subtenant. In the event of any such assignment and assumption, Retail Manager shall be deemed to have (i) attorned to the Port Authority, (ii) recognized the Port Authority as its lessor for the Concession Area, and (iii) released and waived any ongoing liability or obligation of American under this Agreement simultaneously with the Port Authority’s assumption of all of American’s ongoing rights and obligations (excepting from such waiver such rights to payment/claims and debts/liabilities of American that shall have accrued before the effective date of such assumption), and Retail Manager shall be deemed to have acknowledged and agreed that wherever in this Agreement American has agreed to act reasonably, to not unreasonably withhold, delay or condition its approval or consent, or words of similar import, the same shall not bind or be enforceable against the Port Authority, as lessor, inasmuch as the Port Authority shall be understood and deemed only to have agreed not to be arbitrary and capricious in the exercise of its discretion.
2.4.5In the event of any inconsistency between this Agreement and the Lease, or between any Sublease and the Lease, or between this Agreement and the Operator Permit, or between a Sublease and the Operator Permit, then in each and every such instance the Lease or the Operator Permit, as the case may be, shall supersede and control.
2.4.6American does not assume any obligation to perform any of the terms, covenants or conditions contained in the Lease or the Operator Permit to be performed by the Port Authority, and in the event that the Port Authority should fail to so perform, American shall be under no obligation or liability whatsoever to Retail Manager other than to use commercially reasonable efforts to cooperate in good faith with Retail Manager toward securing performance by the Port Authority. In any event, Retail Manager has the right, to request in its own name in writing to the Port Authority, performance of obligations required of the Port Authority under the Lease or the Operator Permit directly from the Port Authority, provided Retail Manager shall first provide to American not less than five (5) Business Days’ prior written notice of its intention to make such request. A copy of any correspondence delivered to the Port Authority by Retail Manager or delivered to Retail Manager by the Port Authority shall be delivered to American promptly, but in no event later than five (5) Business Days, from the date such correspondence is received by or sent by Retail Manager. In no event shall Retail Manager be entitled to exercise, or be subrogated to, any of American’s rights under the Lease. In any event, Retail Manager shall not be allowed any abatement or diminution of Rental under this Agreement because of the Port Authority’s failure to perform any of its obligations under the Lease or the Operator Permit or because of any variation in Enplaned Passengers or sales in the Concession Area, except as otherwise specifically established in this Agreement.
2.4.7In the event the Operator Permit is revoked or terminated by the Port Authority prior to the expiration of this Agreement, this Agreement shall automatically terminate simultaneously therewith and American shall have no liability or obligation as a result of such termination other than as expressly provided in Article 3 below.
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3.TERM.
[**] Agreement afford Retail Manager or any other party any right to use or occupy the Concession Area (or any part thereof) or to operate any concession or other business within the Terminal after the expiration, [**]
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3.3Assumption of Subleases. In the event of Early Termination of this Agreement, American shall have the following rights and obligations regarding the Subleases then in effect: (a) in case of termination without cause by American (including by virtue of revocation and/or termination of the Operator Permit by the Port Authority without cause or the rejection of this Agreement or the Lease as either an executory contract or an unexpired real property lease in a bankruptcy proceeding of American as described above) or if Retail Manager terminates for cause, American shall assume all of Retail Manager’s Subleases and American and Retail Manager shall execute an Assignment and Assumption Agreement as described below; and (b) in cases of termination with cause by American (including by virtue of revocation and/or termination of the Operator Permit by the Port Authority for cause), or if Retail Manager terminates without cause as provided in Section 3.2 (which would include a rejection of this Agreement as either an executory contract or an unexpired real property lease in a bankruptcy proceeding of Retail Manager), American shall execute Assignment and Assumption Agreements and assume those Subleases that satisfy the following criteria: (i) the Subtenant is not currently in non-monetary default, beyond all applicable notice and cure periods; (ii) the Subtenant has no outstanding uncured material defaults; (iii) the Subtenant has not had any material default during the previous three hundred sixty-five (365) days of its Sublease or a history of three (3) or more accumulated material defaults during the term of its Sublease, provided that for the purpose of this subclause (iii) payment defaults are not considered to be material defaults if they had been cured by payment in full from or on behalf of the Subtenant, including all contractually required interest and penalties; (iv) the Subtenant is current regarding all payments of any kind for which it is responsible under its Sublease; and (v) Subtenant has no outstanding claims of default against Retail Manager in its capacity as landlord under the respective Sublease or has waived any such claims.
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In addition to the foregoing, American has no obligation to assume any Sublease (A) which does not comply with Article 6 (including the approvals required pursuant thereto), and (B) for which Retail Manager does not execute an assignment and assumption agreement in form and substance satisfactory to American (an “Assignment and Assumption Agreement”) under which (1) Retail Manager or, in American’s sole discretion, another Person determined by American to be creditworthy remains liable for, and indemnifies and holds American Indemnitees harmless for any claims or liabilities (including obligations to reimburse any Subtenant’s construction or installation costs for Fixed Improvements or Refurbishments, or other finish-out or repair costs pursuant to the terms of such Sublease) arising out of the performance of the Sublease up to the effective date of such Assignment and Assumption Agreement, and (2) American assumes liability for, and indemnifies and holds Retail Manager harmless in respect of the performance of the Sublease from and after the effective date of such Assignment and Assumption Agreement other than liability arising from Retail Manager’s negligence or willful misconduct.
3.4Suspension by Port Authority of Operator Permit. If a Suspension occurs, then during such period of Suspension and prior to any Early Termination as a result thereof, Retail Manager’s obligations hereunder shall be deemed suspended, and American shall collect the fees, rent and other moneys due and payable to the Port Authority and American under the Subleases, as well as, perform all obligation of Retail Manager under this Agreement during the period of any Suspension. American shall hold any amounts that are due and payable to the Port Authority hereunder without deduction, credit or offset for arrearages and shall remit the amounts owed to the Port Authority as otherwise set forth hereunder. To the extent an Early Termination does not occur and a Suspension is lifted, American shall provide Retail Manager any statements or notices received from Subtenants and/or the Port Authority during the period of Suspension. In the event this Agreement is not terminated as a result of the Suspension and the Suspension is lifted by the Port Authority, upon receipt by American of notice thereof, Retail Manager shall resume its obligations under this Agreement. In no event shall Retail Manager receive any compensation or fees hereunder for the period of Suspension or for obligations that American performs on Retail Manager’s behalf during a period of Suspension. Notwithstanding any provision hereof to the contrary, Retail Manager shall not be liable for any indemnification obligations set forth in this Agreement which relate to any occurrences, facts or circumstances occurring during the period of any Suspension. Retail Manager agrees to cooperate with American and provide any and all reasonably requested information to American during any period of Suspension.
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4.7.1Notwithstanding any other provision of this Agreement, American and Retail Manager acknowledge that no rent abatements granted by Retail Manager to a Subtenant or by American to Retail Manager may diminish or otherwise adversely affect the Port Authority’s Allocated Share of Rental payable by Retail Manager to the Port Authority hereunder, other than (x) any abatements applicable to the Concession Area which American may exercise at American’s option in the event that the Port Authority, for safety or other reasons, prohibits the use of the Public Landing Area (as defined in the Lease)
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at the Airport or of any substantial part thereof for foreign or domestic scheduled air transport operations for a period covering more than sixty (60) consecutive days and American is prevented from conducting certain of its operations at the Airport, and (y) those which are expressly set forth in this Agreement or contained in an approved Sublease.
4.7.2Retail Manager’s payments to American and the Port Authority of Rental and Additional Payment Obligations under this Agreement, and the accompanying statements and reports shall be sent to the addresses set forth in Section 15.8 of this Agreement or to such other address as may be directed by such parties from time to time or shall be paid by wire transfer pursuant to written instructions received in advance from American or the Port Authority. Rental payments may only be made in lawful money of the United States. Retail Manager’s obligation to pay Rental and Additional Payment Obligations under the terms of this Agreement shall not be deemed satisfied until such Rental and Additional Payment Obligations have been actually received by American and the Port Authority.
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4.9Late Payment Charges. In the event any payment required to be made to American hereunder is not made when due, Retail Manager shall pay Late Interest for the period from the date such payment was due until the date that it is paid in full by Retail Manager to American. Late charges due and payable to the Port Authority shall be calculated pursuant to the provisions of the Operator Permit.
4.10No Abatement.
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Rental and the Additional Payment Obligations collected must be paid by Retail Manager without set-off, notice, deduction (except as American may authorize in respect of the Management Fee), demand or abatement for any reason or event whatsoever, except as may be specifically established elsewhere in this Agreement, and without regard to whether the collection of Subtenant Rental by Retail Manager under the Subleases provides timely or sufficient liquidity for Retail Manager to make Rental and Additional Payment Obligations payments without recourse to other funds.
4.11Security Deposit. On or before the Effective Date, Retail Manager shall pay to American the AA Security Deposit.
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4.11.3American shall have the right from time to time, to apply, draw upon or claim against the AA Security Deposit or any portion thereof, as the case may be (the “Application”), to compensate American’s damages arising from any non-payment or other default on the part of Retail Manager to American, and such Application shall not preclude American from recovering greater damages to which American may be entitled or otherwise prejudice any other remedy American may otherwise have on account of such default or damages in accordance with this Agreement. Within no more than five (5) Business Days after such Application, Retail Manager shall restore the amount so applied, so that the AA Security Deposit is at all times equal to the amount required above.
4.11.4Provided that Retail Manager is not in default under this Agreement (and no Event of Default or Early Termination under Section 3.2(iii) resulted in termination of this Agreement), American shall release or return the AA Security Deposit or so much thereof as shall not have been applied in accordance with this Section 4.11, within sixty (60) days of the later to occur of (a) the expiration or Early Termination of this Agreement, or (b) the surrender of possession of the Concession Area by Retail Manager.
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4.12.3For the avoidance of misunderstanding, it is understood that if at any time during the Term, there shall be levied, assessed or imposed on American, a capital levy or other tax (except for federal and state income taxes assessed on American and attributable to Rental received by American or the Port Authority under this Agreement) directly on the Rental or other amounts payable hereunder or a franchise tax assessment, levy or charge measured by or based, in whole or in part, upon such Rental from the Concession Area or any portion thereof or any other amounts payable to American hereunder, then all such taxes, assessments, levies or charges, or the part thereof so measured or based, shall be paid by Retail Manager and shall be deemed to be included within the term “Taxes” for the purposes hereof. American acknowledges that Subtenants may have the obligation to reimburse Retail Manager with respect to Taxes on rentals payable by Subtenants and that accordingly the Taxes due pursuant to this Section 4.12.3 may be collected by Retail Manager from Subtenants.
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4.12.4Provided Retail Manager is required to pay any Taxes pursuant to the terms of this Section 4.12, Retail Manager may, at its sole cost and expense and in its own name, dispute and contest any Taxes by appropriate proceedings diligently conducted in good faith, but only after Retail Manager has deposited with American the amount so contested and unpaid, which shall be held by American until the termination of the proceedings, at which time the amount deposited shall be applied by American toward the payments or the items held valid (plus any court costs, interest, penalties and other liabilities associated with the proceedings) and any excess shall be returned to Retail Manager with interest at the Prime Rate. Retail Manager further agrees to pay to American, upon demand, all court costs, interest, penalties, and other liabilities relating to such proceedings (to the extent the deposit required hereunder is insufficient to pay such costs) and, if such amounts are not paid by Retail Manager, American may draw down such amounts upon the AA Security Deposit or set them off against the Management Fee. Notwithstanding anything to the contrary stated above, Retail Manager has no greater right to contest Taxes than American has under the Lease.
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4.12.6American represents and warrants to Retail Manager that as of the date of execution of this Agreement, there are no Taxes assessed to American for which American would require Retail Manager to have responsibility under this Section 4.12. For the avoidance of doubt, neither party has any responsibility to the other for federal or state taxes based on or determined by the other party’s net income, net worth, or ongoing qualification to do business as a corporation (e.g., state franchise taxes), nor does either party have any responsibility to Subtenants for such federal or state taxes applicable to Subtenants.
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4.13.4At the end of each calendar month within a Lease Year, Retail Manager shall report to American the total Adjusted Gross Receipts for such month. For each Tier 2 Lease Year or Tier 3 Lease Year, Retail Manager shall also, if applicable, carry out the calculations for the Tier 2 Amount or Tier 3 Amount within no more than thirty (30) days after the close of such Lease Year, or within thirty (30) days after the day on which this Agreement expires or is terminated for any reason and share the details of such calculations with American (and the Port Authority if it so requests). Subject to Section 4.13.5 below, (a) with respect to a Tier 2 Year, Retail Manager shall reconcile (x) the Tier 2 Amount with (y) the Tier 1 Amount and, to the extent there is any excess, such amount shall be due and owing to Retail Manager and (b) with respect to a Tier 3 Year, Retail Manager shall reconcile (x) the Tier 3 Amount with (y) the Tier 1 Amount and, to the extent there is any excess, such amount shall be due and owing to Retail Manager.
4.13.5Notwithstanding anything in this Agreement to the contrary, if there is a Minimum Guaranteed Rental Shortfall for a Lease Year, then (regardless of the amount of Adjusted Gross Receipts) Retail Manager shall not receive any of the Tier 1 Amount, Tier 2 Amount or Tier 3 Amount for such Lease Year, and shall pay over all such amounts received or withheld by Retail Manager to American within forty-five (45) days of the end of such Lease Year.
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4.13.6For the avoidance of doubt, nothing in this Agreement, including Section 4.8(v) or this Section 4.13, shall affect Retail Manager’s obligation to pay the full amount of the Minimum Guaranteed Rental, which shall not be reduced by any revenue sharing or withholding of the Tier 1 Amount or Management Fee.
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5.CONSTRUCTION OF THE PREMISES.
5.1Redevelopment of the Premises. The Terminal consists of Concourse B, Concourse C and the Main Hall. The Existing Concession Area consists of approximately 68,000 square feet of revenue-generating concessions space, comprised of approximately 60 concession facility locations including specialty retail, duty free, news/convenience, food and beverage, foreign currency exchange, business services center and other consumer services, Food Court, public seating areas and other designated common areas. A total of approximately 85,100 square feet of concessions space (that generates revenue directly or indirectly) will be available for the Proposed Concession Area. Retail Manager shall re-develop and re-concept the Concession Area and perform, or cause the Subtenants to perform, the Concession Area Base Work and the Subtenant Premises Work.
5.2Permanent Facilities. Retail Manager shall, and shall cause each of the Subtenants to, install the Fixed Improvements in the Concession Area and within each Subtenant Premises, on or before the applicable Sublease Required Opening Dates and/or in accordance with the phasing schedule set forth in the Development Plan, all in accordance with the applicable approved Final Drawings and otherwise in compliance with the Alteration Application, the Tenant Construction Manual, any Additional Port Authority Requirements, the Design Guidelines and any other reasonable requirements of American.
5.2.1Retail Manager shall, and shall cause Subtenants to, furnish conceptual drawings and plans (“Conceptual Plans”) and final drawings and specifications (“Final Drawings”) for each Subtenant Premises and for the Concession Area Base Work; it being understood that any such Conceptual Plans and Final Drawings shall include, at a minimum (a) details on the type and grade of materials to be used in the Subtenant Premises and Concession Area Base Work (including but not limited to seating, architectural elements, flooring, fixtures, lighting), (b) renderings and models of all areas of the Concession Area as set forth in Exhibit T, including the Great Hall (including the dynamic wooden-slat architectural element), Orientation Zone, Food Hall, Recompose Area (including the wood ribbon lounge seating), Dwell and Gathering Places and the Show, all as described therein, and (c) with respect to the Concession Area Base Work, (i) design elements that incorporate nature, such as landscape elements, biophilic design elements and an atmosphere that connects customers to the outside world, (ii) thoughtfully placed intuitive kiosks and digital directories, (iii) details regarding the Show, including a strong digital display between the Show and Concourse B that can display live or digital performances, a dedicated performance area viewable from the Food Hall with cascading steps seating at least thirty (30) people and full audio/visual and lighting capabilities for live performances, all as set forth in Exhibit T, and (iv) luxury and duty-free shopping connecting the security checkpoint and Concourse B.
5.2.1.1Retail Manager shall submit Conceptual Plans for the Concession Area Base Work to American for its prior written approval no later than sixty (60) days after the Effective
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Date. American shall promptly review such Conceptual Plans and American shall provide written comments or approvals to Retail Manager within thirty (30) days following receipt of such Conceptual Plans. Following approval of such Conceptual Plans, Retail Manager shall submit Final Drawings for the Concession Area Base Work no later than ninety (90) days (or such shorter period of time in order to complete installation of the Fixed Improvements in accordance with any milestones set forth in the Development Plan) to American for its written approval. American shall promptly review such Final Drawings and American shall provide written comments or approvals to Retail Manager within thirty (30) days following receipt of Retail Manager’s Final Drawings for the Concession Area Base Work. In the event of disapproval, Retail Manager shall immediately revise the Final Drawings and promptly resubmit them for approval of American until such approval is obtained. Following approval of the Final Drawings, Retail Manager shall file an Alteration Application as soon as possible thereafter (and in no event more than five (5) days thereafter, as extended for any period necessary to obtain American’s signature after Retail Manager has delivered such Alteration Application to American for signature) with the Port Authority. American will sign the Alteration Application, if required, within five (5) business days after request from Retail Manager, prior to submittal to the Port Authority. The Port Authority is expected to provide its approval no later than thirty (30) days after submission of the Alteration Application and to immediately issue all required construction permits in order to allow Retail Manager to commence its work to install all Fixed Improvements which are part of the Concession Area Base Work in a timely manner. For the avoidance of doubt, American and Retail Manager acknowledge that the Port Authority does not acquire any contractual obligations or rights in respect of the timing for the completion of construction by Retail Manager of the Concession Area Base Work by virtue of the Port Authority’s consenting to this Agreement. Without prejudice to other provisions of this Agreement that may suspend or extend the time for Retail Manager to complete the installation of Fixed Improvements that constitute the Concession Area Base Work, the failure of American to provide comments and/or approvals within the time periods set forth herein for Conceptual Plans and Final Drawings shall extend any milestones set forth in the Development Plan on a day-for-day basis for each day so delayed. Retail Manager shall coordinate all of the Concession Area Base Work with American’s Corporate Real Estate Department and the Port Authority, pursuant to and in accordance with the Lease.
5.2.1.2[**]
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5.2.3[**]
5.2.3.1In addition to the foregoing, with respect to the Concourse B-East Moving Walkway and the Concourse B-West Moving Walkway, Retail Manager shall, at its own cost and expense:
(a)No later than the third (3rd) anniversary of the Effective Date, complete the removal of the Concourse B-East Moving Walkway and the Concourse B-West Moving Walkway, each as reflected on Exhibit G-2. [**]
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(c)All walkway removal work by Retail Manager shall be in compliance with Applicable Laws, Tenant Construction Manual, Alteration Application and Port Authority Design Guidelines.
5.2.3.2In addition to the foregoing, Retail Manager shall complete the current renovation of the restrooms in Concourse B, all as set forth (including, subject to Section 4.2, the incremental costs related thereto) on Exhibit G-2.
5.2.3.3For the avoidance of doubt, American will not be responsible for any investment, costs or expense that result from Retail Manager or any Subtenant’s performance of its obligations under this Agreement, including performance of Base Building work, Fixed Improvements and Refurbishments, unless otherwise expressly stated in this Agreement.
5.2.4Within ninety (90) days of completion of any portion of the Fixed Improvements or Refurbishments at the Concession Area, Retail Manager shall cause the Subtenant’s construction manager and/or architect to duly execute and deliver to American and the Port Authority, as evidence of the completion of such work, a certificate to the effect that:
(a)the design, construction, and equipping of the respective Fixed Improvements have been substantially completed in accordance with the Final Drawings approved by American and the Port Authority;
(b)all costs and expenses for labor, services, materials, and supplies used in designing, constructing, and equipping the respective Fixed Improvements or Refurbishments for which payment is due have been paid in full (specifying, in reasonable detail, the Construction Cost expended in the completion of Fixed Improvements which are to be applied toward the minimum investment requirement established in Section 5.2.3); and
(c)a final certificate of occupancy, a consent to occupy or a permit to use or occupy, as applicable, and all other necessary licenses, permits and other required documents for operation of the Subtenant Premises affected by the Fixed Improvements or Refurbishments have been issued by the appropriate governmental agency.
Retail Manager shall ensure that Subtenants do not begin sales to the public until the requirements regarding inspection and certification by American and the Port Authority have been fulfilled. Retail Manager shall provide American a minimum of 48 hours’ notice prior to a unit’s scheduled opening. American shall, within such 48-hour period, visually inspect the unit onsite with Retail Manager’s representative to either approve the opening (i.e., certification), approve the opening with conditions, or not approve opening with a list of items to be corrected prior to (at American’s discretion) either reinspection or approval to open once corrected items list is complete.
5.2.5Within one hundred and twenty (120) days of completion of Fixed Improvements at the Concession Area (or any Refurbishments or future modifications to the Concession Area) by a Subtenant, Retail Manager shall cause the Subtenant to duly execute and deliver to American, as evidence of the cost of such work, a certificate issued by the chief executive officer, chief financial officer or equivalent representative of Subtenant, detailing the Eligible Costs actually incurred in connection with the installation of such Fixed Improvements or Refurbishment, together with a Depreciation Schedule for each such Fixed Improvements or Refurbishment.
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Retail Manager shall cause Subtenants to provide to American copies of invoices and canceled checks or other reasonable evidence for expenditures for labor and materials covering all such costs and American shall have the right to audit such records. If there is a discrepancy of 5% or more, Retail Manager shall cause the Subtenant to pay the cost of the audit, upon request of American.
5.2.6In the event that a Subtenant desires to make any future modifications to the Concession Area or the Fixed Improvements during the Term, including Refurbishments, Retail Manager will not permit the Subtenant to make such modifications without first obtaining the prior written consent of American, and otherwise complying with the terms and conditions outlined in this Section 5.2 for the initial Fixed Improvements.
5.2.7Subject in all events to the Lease and the Port Authority’s lease with the City of New York, all alterations, additions, improvements and fixtures (including, without limitation, all floor, wall and/or ceiling coverings and any Subtenant-installed heating and air conditioning equipment, but excluding Retail Manager’s or the Subtenants’ readily movable decorations, trade fixtures, furniture and office equipment) which may be made or installed by any party in the Concession Area shall remain upon and be surrendered with the Concession Area and become the property of American, if permitted under the Lease, or the City of New York as the same or any part thereof is erected, constructed or installed, and shall be or become a part of the Concession Area.
5.2.8All contracts for the construction or installation of Fixed Improvements or Refurbishments shall be subject to the provisions in Exhibit J and shall require:
(a) That all contractors and subcontractors provide labor that can work in cooperation with other elements of labor employed or to be employed at the Airport;
(b) Insurance coverage and suretyship reasonably satisfactory to the Port Authority and American for the protection of the Port Authority’s and American’s property, employees, laborers, suppliers, contractors, subcontractors, agents, invitees and the public;
(c) That all contractors and subcontractors comply with all provisions of this Agreement, including, without limitation, the provisions of Article 2, applicable to them; and
(d) Performance bonds and payment bonds from Subtenants or Subtenants’ general contractor, in form and substance satisfactory to the Port Authority and American, each of which shall name the Port Authority and American, as additional obligees and which shall be in a sum equal to the amount of the applicable construction contracts.
5.2.9During the Development Period, and all at Retail Manager’s (or the applicable Subtenant’s) cost and expense, Retail Manager shall (with American’s prior written consent) execute temporary operations in vacant spaces in the Concession Area, creating wall shops and flexible mobile operations that can be easily relocated during the Development Period.
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5.3.2Retail Manager and the Subtenants have no authority, express or implied, to, and they shall not, create, place or permit the placement of any lien or encumbrance of any kind or nature whatsoever upon, or in any manner to bind, the interest of American, the Port Authority or Retail Manager in the Concession Area, the Terminal or the Airport, or to assign or encumber either the Rentals, Additional Payment Obligations, or any other amounts payable hereunder or the Subtenant Rental and other amounts payable by Subtenants to Retail Manager. for any claim in favor of any Person dealing with Retail Manager, including, without limitation, those who may furnish materials or perform labor for any construction or repairs. Retail Manager covenants and agrees that it will pay or cause to be paid all sums legally due and payable by Retail Manager on account of any labor performed or materials furnished in connection with any work performed in, under, on and upon the Concession Area, by or on behalf of Retail Manager, and that Retail Manager will indemnify and hold American Indemnitees and the Port Authority, and the Port Authority’s commissioners, employees, officers, agents and representatives, harmless from any and all losses, costs and expenses of any asserted claims or liens against the leasehold estate or against other respective rights, title or interests of American in the Premises or the Terminal and the Port Authority in the Airport or under the terms of this Agreement based on or arising out a breach of the covenants of this Section 5.3.2. Retail Manager agrees to give American immediate written notice of the placing of any lien or encumbrance against the Concession Area or the Terminal.
5.3.3Retail Manager accepts that this Agreement is subject and subordinate to any mortgages or deeds of trust now or at any time hereafter constituting a lien or charge upon the Concession Area or the Terminal or other improvements that constitute a part of the Concession Area, including, without limitation, the Bond Financing. Retail Manager, within no more than fifteen (15) days after written request, shall execute any customary and commercially reasonable instruments, releases or other documents that may be required by any mortgagee, trustee or holder for the purpose of subjecting and subordinating this Agreement to the lien of any such mortgage or deed of trust, so long as such instrument, release or other document also provides customary non-disturbance language in favor of Retail Manager (so long as there is no Event of Default).
5.4Liquidated Damages.
5.4.1 5.4.1 [**]
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5.5Office Facilities. Certain portions of the Concession Area as reasonably determined by American in consultation with Retail Manager shall be set aside for Retail Manager to use as office facilities for its Concession Manager and staff referenced in Section 7.2.4 (the “Office Space”). The rental for the Office Space is deemed subsumed within Rental payable by Retail Manager to American, and there will be no separate rental assessed to Retail Manager. However, the following are Retail Manager’s sole responsibility: (i) Fixed Improvements or Refurbishments to such Office Space (in accordance with this Agreement), and (ii) any utilities not provided by American to all other non-food and beverage Subtenants at American’s cost, and maintenance, services, insurance and similar costs as in a “net lease.”.
6.CONCESSION AGREEMENTS.
6.1Subleases. Retail Manager shall use its diligent, good faith efforts during the Term to identify various qualified enterprises to be Subtenants to enter into Subleases for all portions of the Concession Area for the types of concession operations contemplated under this Agreement with reference to the subtenant criteria and leasing procedures further described in this Section 6.1, and to cause all such Subtenants to complete Fixed Improvements and open for business within a reasonable time period. Each such Subtenant and Sublease are subject to the prior written approval of American and the Port Authority, which approval by the Port Authority shall be evidenced by a Four-Party Subtenant Consent Agreement, and, in the case of American, will not be unreasonably withheld, conditioned or delayed. However, in evaluating potential Subtenants, American may take into account a variety of general factors beyond the Subtenant’s product offerings, experience, solvency and potential contribution to concessions sales, such as, merely by way of example, safety/security issues, reputation, and marketing or equity affiliations with competitors of American.
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American will use diligent, commercially reasonable efforts to assist Retail Manager in securing the Port Authority’s timely consents under this Section. Retail Manager agrees to (i) involve American in the requests for proposal process and selection process for proposed subtenants and (ii) comply with the Concession Solicitations Process approved by American and the Port Authority.
6.1.1Retail Manager agrees to use the form of sublease attached hereto as Exhibit F for all Subtenants in the Concession Area, which form of sublease has been approved by American and the Port Authority; provided that Retail Manager hereby acknowledges that American, in its reasonable discretion, and the Port Authority may require changes to such form of sublease from time to time. Each Sublease must include (or address, as applicable to specific types of concessions) at least the following provisions:
(a)The Sublease is subject and subordinate to the Lease and this Agreement and Subtenant shall comply with all provisions of this Agreement, the Four-Party Subtenant Consent Agreement and the Additional Port Authority Requirements;
(b)The Sublease shall immediately terminate upon termination of this Agreement for any reason, without direct recourse of any kind against American (without prejudice to Retail Manager’s separate rights under this Agreement to claim for reimbursement or request direct payment by American of Subtenant unamortized Eligible Costs (based upon the Depreciation Schedule previously submitted to American, in accordance with this Agreement) based on termination by the Port Authority or American of a Sublease without cause) or, at American’s option, such Sublease shall be assumed by American (as provided in Section 3.3) upon such termination and, in the event of such an assumption, Subtenant shall attorn to American or its designee and recognize American or its designee as lessor for all purposes thereunder;
(c)Retail Manager shall be permitted to assign the Sublease to American or its designee (in each case with American’s consent) and, in the event of such an assignment, Subtenant shall attorn to American or American’s designee and recognize American or its designee as lessor for all purposes thereunder. The foregoing assignment shall require Port Authority consent if it is not in connection with a termination or expiration of this Agreement or the exercise of American’s rights under this Agreement;
(d)American shall be a third party beneficiary of the Sublease;
(e)Other than with respect to Subtenants that are ACDBEs or first time airport subtenants, each Subtenant shall acknowledge that its Sublease may be terminated, without cause, by the Port Authority upon thirty (30) days’ prior written notice by means of revocation of the Four-Party Subtenant Consent Agreement, or by American upon one hundred eighty (180) days’ prior written notice, and in either event, except as otherwise provided in Section 3.2, with respect to such Sublease termination, neither the Port Authority nor American shall be responsible, directly or indirectly, for any portion of Subtenant’s investment (amortized or un-amortized) in, at or to the Subtenant’s Premises;
(f)Except to the extent modified by and in accordance with an approved Concession Program, each Sublease for the applicable type of concessions noted below must include (or address, as applicable to Subleases for the specific types of concessions) at least the following provisions with respect to hours and days of operation:
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(ii)With respect to the Subleases for the remaining types of Subtenant Premises, the applicable Subleases shall require that the minimum hours of operation will be as follows:
(A)For newsstand concessions, a minimum of sixteen (16) hours per day, each day of the year, with the opening for business each day at least ninety (90) minutes prior to the first scheduled departing flight from the Terminal and continuing until the later of (x) completion of boarding for the last actual departure from the Terminal on the respective day or (y) one hour after the last actual arrival at the Terminal of a flight scheduled for arrival thereat on the same day, whichever constitutes the earlier opening and later closing;
(B)For food and beverage concessions, with respect to each concourse, at least two (2) “sit down” food and beverage concessions with table service and at least two (2) fast casual/grab-and-go food and beverage concessions, opening at 5:30 a.m. and closing at 10:00 p.m., each day of the year, provided that such concessions are open at least ninety (90) minutes prior to the first scheduled departing flight from the Terminal and continuing until the later of (x) completion of boarding for the last actual departure from the Terminal on the respective day or (y) one hour after the last actual arrival at the Terminal of a flight scheduled for arrival thereat on the same day, whichever constitutes the earlier opening and later closing;
(C)For duty-free and foreign currency exchange concessions, at a minimum, one such concession shall be open in the foreign inspection services area and a second shall be open in a central location in the Terminal with the following hours: 7:00 a.m. to 10:00 p.m., each day of the year, or at least ninety (90) minutes prior to the first scheduled departing flight from the Terminal and continuing until the later of (x) completion of boarding for the last actual departure from the Terminal on the respective day or (y) one hour after the last actual arrival at the Terminal of a flight scheduled for arrival thereat on the same day, whichever constitutes the earlier opening and later closing; and
(D)For all other concessions, 7:00 a.m. to 10:00 p.m.
The foregoing hours may be adjusted from time to time based on flight schedules as mutually agreed between American and Retail Manager subject to the provisions of the Lease. Retail Manager shall, at least quarterly, deliver a calendar to Subtenants and American that details a rotating schedule of Subtenants that are required to remain open during certain periods of time, which enables Subtenants to prepare for irregular operations in advance. In the event of irregular operations, (A) all twenty-four (24)-hour operators are required to remain open, (B) at least one (1) newsstand concession location shall remain open and (C) at least one (1) additional food and beverage operator shall remain open.
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Retail Manager shall ensure that Subtenants required to remain open beyond regular hours are informed as early as possible through email, phone calls and face-to-face, with confirmations required. To ensure proper staffing levels are maintained, Retail Manager shall provide Subtenants with information on public transportation availability to pass on to employees. Subtenants are required to provide airport lodging for their employees, if necessary, to ensure their respective locations remain open.
In any instance in which no minimum hours have been set forth above, such Subtenant shall be required to be open for business and operate its respective business as provided in the Concession Program.
(g)Subtenants shall operate their respective business so as to maximize their revenues in accordance with best industry practices and standards observed generally by first-class business enterprises of local, regional or national scope which operate at other major airports in the continental United States;
(h)Subtenants shall not charge prices to its customers in excess of Street Prices and shall adhere to the Street Price program in accordance with the Airport Rules & Regulations, general manager’s bulletins, and the customer service standards manual and shall conspicuously display notices, in form and substance reasonably satisfactory to the Port Authority and reasonably satisfactory to American, in the Subtenant’s Premises, to the effect that the Subtenant adheres to the foregoing Street Prices policy;
(i)Subtenants shall not begin sales to the public at the Subtenant Premises until the requirements regarding inspection and certification by American and the Port Authority have been fulfilled in accordance with Section 5.2;
(j)Each Subtenant shall use its best efforts in every proper manner to develop and increase the business it conducts in the Concession Area;
(k)Subtenants shall not divert, or cause or allow to be diverted, any business from the Concession Area, the Terminal or the Premises, and shall represent and warrant that they are not and will not be party to another agreement with the Port Authority under which receipts from its operations in its Subtenant Premises would be excluded from the definition of Gross Receipts under this Agreement and subject to a separate percentage fee or percentage rent under that agreement;
(l)Subtenants shall maintain (and shall cause any of their affiliates which performs services similar to those performed by the applicable Subtenant to maintain), in English and in accordance with accepted accounting practices consistently applied, during the term of the subletting under their respective Sublease and for one (1) year after the expiration or earlier termination or surrender thereof, and for a further period extending until receipt of written permission from the Port Authority to do otherwise, full and complete records and books of account recording all of their transactions at, through, or in any way connected with their operations at the Concession Area or elsewhere at the Airport, and outside the Airport if the order therefor is received at the Premises, which records and books of account shall be kept at all times within the Port of New York District. Subtenants shall permit and/or cause to be permitted in ordinary business hours during the term of the subletting under the applicable Sublease and for one (1) year thereafter, and during such further period as is mentioned in the preceding sentence, the examination and audit by the officers, employees and representatives of both the Port Authority and those
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of American of such records and books of account and also any records and books of account of any affiliate if said affiliate performs services similar to those performed by the sublessee anywhere in the Port of New York District (including without limitation all corporate records and books of account which the Port Authority in its sole discretion believes may be relevant for the identification, determination or calculation of all fees, rentals and other amounts paid or payable to the Port Authority, all agreements, and all source documents), within ten (10) days following any request by the Port Authority from time to time and at any time to examine and audit said books and records. If any such books and records have been maintained outside of the Port District, but within the continental United States then the Port Authority in its sole discretion may (A) require such books and records to be produced within the Port District or (B) examine such books and records at the location at which they have been maintained and in such event the Subtenant shall pay to the Port Authority when billed all travel costs and related expenses, as determined by the Port Authority for Port Authority auditors and other representatives, employees and officers in connection with such examination and audit, or, if any such books and records have been maintained outside the continental United States then, in addition to the costs already specified in this sentence, the concessionaire shall pay to the Port Authority when billed all other costs of the examination and audit of such books and records including without limitation salaries, benefits, travel costs and related expenses, overhead costs and fees and charges of third party auditors retained by the Port Authority for the purpose of conducting such audit and examination;
(m)Subtenants shall permit and/or cause to be permitted in ordinary business hours during the term of the subletting under their respective Subleases and for one (1) year thereafter, and during such further period as is mentioned in the clause (l) above, the examination and audit by the officers, employees and representatives of both the Port Authority and American of such records and books of account and also any records and books of account of any Affiliate if said Affiliate performs services similar to those performed by Subtenant anywhere in the Port of New York District (including, without limitation, all corporate records and books of account which the Port Authority in its sole discretion believes may be relevant for the identification, determination or calculation of all fees, rentals and other amounts paid or payable to the Port Authority and American, all agreements, and all source documents), within ten (10) days following any written request by the Port Authority or American from time to time and at any time to examine and audit said books and records;
(n)As of their opening date, Subtenants shall install and use the latest technology for point of sales equipment and any other equipment and devices, including without limitation computerized record-keeping systems, for recording orders taken, or services rendered, as may be appropriate to Subtenant’s business and necessary or desirable to keep accurate books and records as aforesaid, and without limiting the generality of the foregoing, for any activity involving cash sales, install and use cash registers or other electronic cash control equipment that provides for non-resettable totals, each in accordance with Section 12.2; provided that any Subtenant with a Sublease term exceeding seven years (whether an initial term or due to term renewals or extensions) shall be required to make updates to such technology from time to time in order to accept new forms of payment that are widely accepted. Subtenants shall register in such point of sales equipment and cash registers every transaction made in, on, about or from the Subtenant’s Premises, including every type of Gross Receipts. Records of receipts for all such transactions shall be accessible to, and subject to inspection by, American and the Port Authority in a digital format. Subtenants shall install cash registers and/or other devices
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that accept all major credit cards and mobile payment systems (including, Apple Pay and Google Pay) and, wherever commercially reasonable, Subtenants shall provide a swipe and go, chip and mobile payment credit card services to its customers and, upon the request of American, otherwise comply with the requirements of Section 12.3;
(o)Subtenant shall work with Retail Manager to implement technology, processes and operations that enable customers to digitally search, browse and purchase retail, duty free, and food and beverage products and services, including quick and easy fulfillment options such as in-terminal delivery, pre-order and pick-up;
(p)As soon as practicable after the end of each calendar month, but no event later than the tenth (10th) day of the following calendar month, Subtenants shall deliver to Retail Manager, American and the Port Authority a Monthly Rental Statement for the Subtenant Premises showing the Gross Receipts for the preceding calendar month, together with supporting documentation therefor as required by Retail Manager, American or the Port Authority, including, without limitation, a statement, certified by an authorized officer or equivalent representative of the Subtenant, of Gross Receipts arising out of operations of the Subtenant for the preceding month;
(q)American shall have the right, at any time and from time to time prior to and during the Term, in the interest of the efficient operation of the Terminal, to close, move or alter any common corridor, passageway, walkway or common area, including, without limitation, entrances, exits, passages, halls, corridors, aisles, stairways, elevators or escalators, or to restrict or change the traffic on or through any such common corridor, passageway, walkway or common area, with due regard to not unreasonably restricting the use and occupancy of the Concession Area by the Subtenants. Subtenants shall not have any claim against American for such action, nor shall such action by American release Subtenants from any of its obligations under their respective Sublease;
(r)The Sublease shall address the substance of, or incorporate by reference Section 2.3 of this Agreement, so as to permit the Subleases to be terminated in connection with the elimination and/or reduction of the size of the Concession Area or to be relocated, in each case, without the consent or approval of the Subtenants and without any liability for American or Retail Manager beyond what is specifically contemplated in Section 2.3;
(s)The Sublease shall reproduce and adapt or incorporate by reference Sections 5.3.2, 7.2.1(r), 7.7, 8.6, 14.1.2.10 (vis-à-vis Subtenant property), 14.3, 15.1.3 (as per 15.1.6) and 15.1.5 of this Agreement;
(t)Subtenant shall defend, indemnify and hold harmless American Indemnitees, the Port Authority and its commissioners, and all of the officers, directors, employees and agents of each of them, on at least the same basis and to the same extent as required of Retail Manager under Section 15.1.1;
(u)Subtenant shall permit the inspection during ordinary business hours by the officers, employees and representatives of the Port Authority and American of any equipment used by it, including, without limitation, any of the equipment described in clause (n) above;
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(v)Subtenant, for itself, its successors in interest, and assigns, as a part of the consideration for the Sublease, shall covenant and agree as a covenant running with the land that: (i) no person on the ground of race, creed or religion, color, sex, national origin, handicap or disability, or age shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of the Subtenant Premises; (ii) in the construction of any improvements on, over, or under the Subtenant Premises and furnishing of services thereon by it, no person on the ground of race, creed or religion, color, sex or national origin, handicap or disability, or age shall be excluded from participation in such activities, denied the benefits thereof, or otherwise be subject to discrimination; and (iii) Subtenant shall use the Subtenant 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, Non-discrimination 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, and any other Applicable Laws or Applicable Standards, which from time to time may be applicable to Subtenant’s operations at the Subtenant Premises, whether by reason of agreement between American, the Port Authority and the United States Government or otherwise;
(w)Subtenant shall furnish good, prompt and efficient service, adequate to meet all demands therefor at the Concession Area, furnish said service on a fair, equal and non-discriminatory basis to all users thereof, and charge fair, reasonable and non-discriminatory prices for each unit of sale or service, provided, however, that Subtenant may make reasonable and non-discriminatory discounts, rebates or other similar types of price reductions to volume purchasers;
(x)With respect to any Subtenant which employs ten (10) or more persons in the Concession Area, in connection with its operations in the Concession Area under the Sublease, the Subtenant shall serve the public interest by promoting labor harmony, it being acknowledged that strikes, picketing, or boycotts may disrupt the efficient operation of the Terminal. The Subtenant recognizes the essential benefit to have continued and full operation of the Airport as a whole and the Terminal as a transportation center. The Subtenant shall give notice to American and the Port Authority (to be followed by written notice and reports) of any and all impending or existing labor-related disruptions and the progress thereof as soon as practicable (but in no event later than five (5) days after the Subtenant becomes aware of such impending or existing labor-related disruptions). If any type of strike, boycott, picketing or other labor activity is directed against the Subtenant at the Airport or against any operations pursuant to the Sublease, which, in the opinion of American or the Port Authority, adversely affects or is likely to adversely affect the operation of the Airport, any portion of the Terminal or the Concession Area, or the operations of other permittees, lessees or licensees thereat, or presents a danger to the health and safety of users of the Airport or the Terminal under this Agreement, including persons employed thereat or members of the public, whether or not the same is due to the fault of the Subtenant, and whether caused by the employees of the Subtenant or by others, American and/or the Port Authority shall have the right, at any time during the continuance thereof to take all legal remedies available to it to end or arrange for the cessation of any such strike, boycott, picketing or other labor activity. With respect to any Subtenant which employs ten (10) or more persons in the Concession Area, the Subtenant represents that, prior to or upon entering into the Sublease, it has delivered to American and the Port Authority evidence of a signed labor peace agreement in the form attached hereto as Exhibit X or, in the event Exhibit X is inapplicable, a written notification from an officer of the Subtenant on the Subtenant’s letterhead in form and substance satisfactory to American and the Port Authority that no labor organization (as defined by 29 U.S.C.
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Section 152(3)) has sought to represent the employees of the Subtenant at the Airport as of the date of such notification. The requirement to provide evidence of a signed labor peace agreement in the form of Exhibit X shall apply to concession operators which employ ten (10) or more persons at the Premises;
(y)Subtenants shall honor food and beverage cards (preloaded with dollar amounts and a digitized card number) issued by American from time to time to passengers bearing a boarding pass or other verifying documentation deemed sufficient by American;
(z)With respect to any Subtenant which employs ten (10) or more persons in the Concession Area, if the Subtenant’s concession at the relevant concession space is of the same type (i.e., food, retail, news/gifts or duty-free concession) as that of the immediately preceding concession operator at the relevant concession space (the “Predecessor Concession”), the Subtenant agrees to offer continued employment for a minimum period of ninety (90) days, unless there is just cause to terminate employment sooner, to employees of the Predecessor Concession who have been or will be displaced by cessation of the operations of the Predecessor Concession and who wish to work for the Subtenant at the relevant concession space. The foregoing requirement shall be subject to the Subtenant’s commercially reasonable determination that fewer employees are required at the relevant concession space than were required by the Predecessor Concession; provided, however, that the Subtenant shall retain such staff as is deemed commercially reasonable on the basis of seniority with the Predecessor Concession at the subleased premises. American and/or the Port Authority shall have the right to demand from the Subtenant, upon reasonable notice, documentation of the name, date of hire, and employment occupation classification of all employees covered by this provision. In the event the Subtenant fails to comply with this provision, American and/or the Port Authority shall have the right at any time during the continuance thereof to take such actions as American or the Port Authority, as applicable, may deem appropriate, including, without limitation, the Port Authority’s revocation of its consent to the Sublease and, accordingly, revocation of the Sublease;
(aa)The lease terms for the Subleases, potential Subtenants and subleasing schedule shall all be as set forth on Exhibit R; and
(bb)Subject to compliance with applicable laws, the Subtenant shall comply with any and all Applicable Standards and rules and regulations issued by the Port Authority from time to time pertaining to the collection, use, transfer, sale or other disposition of data collected by such Subtenant, any sublessee or any of their respective contractors, agents or representatives with respect to passengers and other users of the Airport.
6.1.2Retail Manager shall use the Sublease form to be attached as Exhibit F as the basis for negotiating agreements with Subtenants. Retail Manager may modify portions of the standard Sublease form during negotiations with each Subtenant as necessary, provided, however, that the business terms, including but not limited to the rental arrangement and any modified portions of the Sublease are subject to the prior approval of the Port Authority and American, and Retail Manager shall not modify the substance of the provisions set forth in Section 6.1.1 without the specific prior written approval of American and the Port Authority. The effectiveness of any Sublease is subject to the delivery to the Subtenant of a fully executed Four-Party Subtenant Consent Agreement. Retail Manager shall have no authority or right to renew, extend, amend or otherwise modify the terms of a Sublease in connection with any legal proceeding, arbitration, settlement negotiations or the like, without the prior written consent of American and the Port Authority, American’s consent not to be unreasonably withheld.
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6.1.3Retail Manager shall, prior to entering into an extensive negotiation with a prospective Subtenant, request a preliminary deal approval of such Subtenant and the proposed rental arrangement by American. Retail Manager shall deliver a written request for a preliminary approval setting forth, in reasonable detail, the proposed Subtenant’s financial abilities, business and plans for its proposed Subtenant Premises, the rental arrangement and all other information reasonably necessary for American to provide preliminary deal approval. Within ten (10) Business Days of American’s receipt of such written notice, together with all necessary supporting documentation, American shall deliver a notice to Retail Manager that the proposed Subtenant and the Subtenant Rental arrangement have been preliminarily approved, or a notice setting forth in reasonable detail why American has determined that such proposed Subtenant and/or the Subtenant Rental arrangement are not acceptable or that American reasonably requires additional documentation to make such preliminary deal. In the event American fails to respond within the aforementioned ten (10) Business Day period, Retail Manager shall have the right to send a subsequent written notice to American stating that American’s failure to respond within five (5) Business Days following American’s receipt of such notice shall be deemed approval and thereafter, if American fails to respond within such five (5) Business Day period, it shall be deemed to have given approval. The granting of any preliminary deal approval shall not relieve Retail Manager of the obligation to obtain the prior written approval of American and the Port Authority to the final negotiated Sublease; provided, however, that American shall not subsequently object to portions of the Sublease that reflect identical terms approved of by American as part of its preliminary deal approval.
6.1.4Each finalized Sublease shall be executed by Retail Manager, not American, as sublessor thereunder, and Retail Manager shall arrange for the execution of Subleases and all amendments and modifications thereto by all parties thereto, and distribute copies thereof to American and the Port Authority in accordance with this Agreement. Retail Manager shall cause its counsel (whether in-house or outside) to use reasonable efforts to limit any changes to the standard Sublease form concerning any Sublease negotiations with Subtenants and otherwise negotiate with Subtenants prior to presentation to American and the Port Authority and continue in such negotiations with Subtenants until completed. Any amendment, modification, supplement, renewal or extension to any Sublease shall not be effective without the prior written approval of American and the Port Authority. Notwithstanding the foregoing, so long as a given Sublease was previously approved of by American and the Port Authority, the following type of amendment, modification, supplement, renewal or extension may be entered into by Retail Manager without having to obtain new consent thereto from American and the Port Authority: (a) increases in any security deposit, (b) addition of an additional guarantor, and/or (c) correction of scrivener’s errors. Further, extension of the original term of such Sublease for a period not exceeding one (1) additional year (with a limit of one such extension per Sublease) may be entered into by Retail Manager without having to obtain new consent thereto from American and the Port Authority, so long as the term of such Sublease (as extended) shall end on the date that is the earlier of: (I) the date that would cause the Sublease term not to exceed ten (10) years in the aggregate; and (II) the day preceding the expiration or termination, as the case may be, of this Agreement.
6.1.5In connection with Retail Manager’s obligations to sublease the Subtenant Premises, Retail Manager shall also: (i) locate and endeavor to secure, in accordance with the Concession Program, suitable Subtenants (including temporary Subtenants) for all Subtenant Premises that may be vacant from time to time or are to become vacant in the near future and are reasonably available for occupancy or use; (ii) review the general suitability of prospective Subtenants and, to the extent Retail Manager may deem it reasonably necessary or appropriate, seek references from prospective Subtenants and conduct such other investigations as will establish whether or not the prospective Subtenants are capable of performing all obligations which the prospective Subtenants would be required to perform under their respective Sublease; (iii) coordinate the activities of management, leasing, design and engineering personnel and/or consultants to implement the leasing program for the Concession Area; (iv) perform such other leasing activities as may be required by and consistent with the prevailing national standard for properties of a similar type and quality as the Concession Area; and (v) ensure that the Premises includes at least the number of the different types of concessions listed in Section 6.1.1(f).
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6.1.6Retail Manager shall, and shall cause the Subtenants to, conduct a business-like operation in the Concession Area and the Subtenants shall carry sufficient merchandise to stock fully the Subtenant Premise operated by the Subtenant. All merchandise must be of first-class quality, and must be approved as provided in Section 7.1; and Retail Manager shall monitor sales activity, pricing, customer service, hours of operation, merchandise, sales reporting and payment of rent.
[**] Retail Manager may not amend a Sublease without American’s and the Port Authority’s prior 6.1.10Four-Party Subtenant Consent Agreements for Temporary Deals.
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Notwithstanding anything to the contrary contained in this Agreement, unless otherwise required by the Port Authority, no Four-Party Subtenant Consent Agreement shall be required for any Sublease, including for “pop-up” or seasonal vendors, that has a term of two (2) years or less.
6.2Use and Prohibited Uses. Retail Manager agrees to use or permit use of the Concession Area for the operation of the concession privileges described in Article 7 hereof. Retail Manager shall not conduct or permit operations in the Concession Area that in the reasonable judgment of American or the judgment of the Port Authority:
(a)Interfere or might interfere with the reasonable use by others of common facilities at the Premises; (b)Hinders or might hinder police, firefighters or other emergency personnel in the discharge of their duties;
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(c)Would or would be likely to constitute a hazardous condition at the Premises;
(d)Would increase the premium for insurance policies maintained by American or the Port Authority, unless such operations are not otherwise prohibited hereunder and Retail Manager pays the increase in insurance premiums occasioned by such operations, or obtains a commitment satisfactory to American from the involved prospective Subtenant to pay such increase;
(e)Would involve any illegal purposes; or
(f)Are not in accordance with the commitment of Retail Manager to procure and manage first-class concession services at the Concession Area.
6.3Ingress and Egress. Retail Manager and Subtenants (via approved Subleases), and their respective officers, employees, customers, patrons, invitees, contractors, subcontractors, suppliers of materials and furnishers of services shall have the right of ingress to and egress from the Concession Area, as reasonably required to carry on permitted activities as described herein, subject to Port Authority, American, governmental and regulatory (e.g., security) approval, and subject to conditions and restrictions pursuant to the Lease. The manner and means of receipt of shipments of inventory and supplies shall also be subject to the approvals, conditions and restrictions described herein.
6.3.1To the extent any of Retail Manager’s personnel listed above require identification badges or security clearance for access at the Terminal, Retail Manager is responsible at its expense for securing such badges or clearance. Retail Manager will cause Subtenants to be similarly responsible for their personnel under the Subleases, and will monitor compliance by Subtenants with required badging and security clearances and the screening of Subtenant goods, products, equipment, materials and supplies. Retail Manager will apply default remedies under Subleases as required to remedy violations or other deficiencies by Subtenants, but shall not have any other responsibility or liability with respect to security issues relating to such Subtenant employee badging and security clearance requirements and the screening of any such Subtenant goods, products, equipment materials and supplies. Notwithstanding anything to the contrary in this Agreement or the Lease, American acknowledges that Retail Manager has no obligation to conduct screening or inspection of goods, products, equipment, materials or supplies brought to the Terminal, Premises or Airport by or on behalf of Subtenants or American.
6.4Assignment of Existing Subleases. With respect to each of the Existing Tenants and the subleases related thereto (collectively, the “Existing Subleases”), Retail Manager shall meet the following milestones: (a) no later than July 11, 2023, Retail Manager shall deliver to each Existing Tenant the Supplement and Assignment and Assumption with Consent in form and substance substantially similar to Exhibit Y attached hereto and otherwise acceptable to the Port Authority and American (the “Supplement and Assignment and Assumption with Consent”); and (b) following July 17, 2023, Retail Manager shall follow-up weekly with each Existing Tenant that has not executed a Supplement and Assignment and Assumption with Consent. Once every calendar week following July 1, 2023 (and until the applicable Supplement and Assignment and Assumption with Consent is executed or the underlying Sublease is terminated), Retail Manager shall deliver to American and the Port Authority a written report (in form reasonably satisfactory to American and the Port Authority) that summarizes the status thereof and Retail Manager’s latest efforts on each Existing Tenant that has not executed a Supplement and Assignment and Assumption with Consent. If a Supplement and Assignment and Assumption with Consent with respect to any Existing Tenant is not fully executed and delivered to American and the Port Authority by August 15, 2023, then upon American’s reasonable request or the Port Authority’s request, the applicable underlying Sublease shall be terminated.
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7.RETAIL MANAGER’S DUTIES.
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7.1.3Retail Manager shall develop, or shall cause to be developed by a third party approved by American, a program which monitors concession reviews on Yelp, Twitter, Instagram and other social media sites (including reviews of Subtenants and the Concession Program and Concession Area). Such program, which may be funded through the Joint Marketing Fund, shall be subject to prior written approval by American and shall, at a minimum, (i) develop a response procedure for the Subtenants with respect to any reasonable deficiencies identified in such reviews, (ii) enable Retail Manager and Subtenants to monitor, report, respond to, and troubleshoot online reviews in real-time from popular sites including Facebook, Trip Advisor, Twitter, Instagram and Yelp, (iii) solicit regular feedback from customers at sit-down restaurants and key Terminal locations, with incentives for customers including gift cards, (iv) require that any review of three (3) stars or less immediately triggers the following response procedure: (A) Subtenant is alerted by email with details of review with a twenty-four (24)-hour response requirement.
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Subtenants have access to respond directly through the platform, (B) Subtenant is required to resolve operational or employee issues within seventy-two (72) hours of complaint. Failure to comply in either step will result in liquidated damages pursuant to the Sublease, and (C) if operational issues exist, Retail Manager’s on-site team will follow up with the Subtenant on an action plan and resolution timeline, and (v) have positive reviews included in Retail Manager’s “My T8 Rewards & Recognition Program” and the WeSoar nomination program. Retail Manager shall prepare and document, in good faith, and deliver to American a monthly report regarding such reviews, which report shall, at a minimum, include summaries (categorized by Subtenant) of reviews of such Subtenant, responses by such Subtenant to such reviews and actions taken by such Subtenant to address deficiencies, which monthly reports shall be delivered by Retail Manager to American no later than the 10th day following each calendar month.
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Without limiting the foregoing, Retail Manager shall utilize technology to (a) deploy an operational and crowd intelligence platform with respect to the Concession Program to optimize shopping experiences, which technology shall, at a minimum, optimize customer flow, build richer customer experiences, track real-time insights of customer density throughout the Concession Program (through discreet, passive sensors that capture anonymized customer information), including heat mapping, engagement measures and dwell time monitoring, (b) connect Subtenants, onsite staff and other stakeholders at the Terminal through Mallcomm or a similar technology, and (c) deploy a communication platform for use during Airport irregular operations or other emergency situations through Everbridge or a similar technology.
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7.4Signs and Advertising. Except with the prior written approval of American (and the Port Authority, as required in the Lease), Retail Manager and the Subtenants shall not erect, maintain or display any signs or any advertising at or on the exterior parts of the Concession Area or in the interior of the Concession Area outside of Subtenant Premises. American may require the removal of any signs or advertising in the interior of the Premises (whether or not in the interior of the space occupied by a Subtenant or visible from any other portion of the Airport) which, in American’s reasonable judgment, is considered unacceptable or improper. American acknowledges that Subtenants’ customary interior signs, placards and decorations that are professionally prepared and in good taste, and are utilized in a manner substantially similar to the manner in which a Subtenant commonly employs them in their first-class stores located in large, urban airports and regional shopping centers in the United States, are highly unlikely to be unacceptable or improper.
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8.CONCESSION AREA MAINTENANCE; RESERVATION OF RIGHTS.
8.1General Concession Area Maintenance., Operating Expenses. Retail Manager shall have primary responsibility for all maintenance, cleaning and routine upkeep of the Food Court, other public seating areas and other designated common areas of the Concession Area at its sole cost and expense (without prejudice to the right of Retail Manager to charge the Subtenants the Common Area Maintenance Fee, or to seek indemnification under Section 15.2 for maintenance and repair costs caused by American), and shall keep such common areas in like-new condition at all times, subject to ordinary wear and tear. Retail Manager shall cause Subtenants to be responsible for the cleaning, maintenance, repair and replacement of their respective Subtenant Premises and all Fixed Improvements installed by or on behalf of the Subtenants and to keep their respective Subtenant Premises, including all Fixed Improvements, in like-new condition at all times, subject to normal wear and tear. The following list is illustrative of the types of maintenance and routine upkeep for which Retail Manager is responsible pursuant to this Section 8.1 and the related costs (the “Operating Expenses”) for which Retail Manager is responsible, but is not intended to be all inclusive:
(a)All wages, salaries and fees of all personnel or entities engaged in the operation, repair, maintenance, access to or control of the Concession Area including also taxes, insurance and benefits relating thereto;
(b)The costs of all supplies and materials used in connection with the operation, maintenance, repair and security (not including badging and screening functions, as described in Section 6.3.1) of the Concession Area;
(c)With respect to the Food Court, other public seating areas and other designated common areas of the Concession Area, the costs of all maintenance, janitorial, access control and service agreements for the Concession Area and for the equipment installed by Retail Manager;
(d)Retail Manager shall competitively bid a new contract for a third-party janitorial service to ensure the best services, scope and cost for cleaning and maintenance of the Food Court, other public seating areas and other designated common areas of the Concession Area, and shall cause all such areas to be cleaned and sanitized after each customer use, or more often as necessary, pursuant to Applicable Laws (including NYC Article 81.27(b)(3) and any successor provisions); and
(e)Legal, architectural, engineering, accounting, appraisal and auditing fees paid to third parties relating to the operation, repair and maintenance of the Concession Area.
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8.2Specific Maintenance, Repair and Janitorial Responsibilities.
8.2.1Except as otherwise expressly identified in the Development Plan, Retail Manager is responsible for structural maintenance, repair and/or replacement of any portion of the Base Building in the Concession Area to the extent such portion of the Base Building in the Concession Area is modified or altered by or on behalf of Retail Manager as part of the Concession Area Work, which such maintenance, repair and/or replacement work shall be subject to the approval of the Port Authority and American, which such approval may be conditioned or withheld in their respective sole discretion. The parties hereto acknowledge and agree that American shall have no obligation to commence or complete and shall have no responsibility for any structural maintenance, repair and/or replacement of any portion of the Base Building in the Concession Area except for such portion of the Base Building which is not modified or altered by or on behalf of Retail Manager as part of the Concession Area Work. Maintenance and repair of any of the Fixed Improvements and Refurbishments, and of any other equipment or property of Retail Manager or the Subtenants in the Concession Area, shall be the sole responsibility of Retail Manager and the Subtenants. It is understood that Retail Manager’s and the Subtenants’ responsibilities also include: (i) the repair and replacement of all lighting, heating, air conditioning, plumbing and other electrical, mechanical and electromotive installation, equipment and fixtures installed by or on behalf of such parties which are located within or exclusively serve Subtenant Premises; (ii) all utility repair in ducts, conduits, pipes and wiring, and any sewer stoppage located within, or which exclusively serve, the Subtenant Premises; and (iii) the repair and replacement of any part of the Excluded Area for any damage caused by Retail Manager or any Subtenant or their respective employees, agents, contractors or invitees, other than ordinary wear and tear. American has not made and hereby disclaims any representations to Retail Manager respecting the condition of the Concession Area or the Terminal other than as may be specifically set forth in this Agreement. Retail Manager and the Subtenants shall, throughout the Term, assume the entire responsibility for, and shall perform and shall relieve American and the Port Authority from all responsibility for, all repair, re-lamping, replacement, rebuilding, and maintenance of the Concession Area, whether such repair, re-lamping, replacement, rebuilding or maintenance be ordinary or extraordinary, partial or entire, foreseen or unforeseen, structural (as it applies to the work performed or furnishings installed by Retail Manager or the Subtenants) or otherwise. Without limiting the generality of the foregoing, Retail Manager and the Subtenants shall at their respective sole cost and expense (apportioned between them as they may agree in a Sublease approved in advance by American):
(a)Keep at all times in a clean and orderly condition and appearance the Concession Area and all fixtures, equipment and personal property which are located in any part of the Concession Area, and keep the Concession Area free of insects, vermin, rodents and other pests, including, but not limited to utilizing a janitorial company to provide pest control management at least once per month for retail and twice per month for food and beverage locations pursuant to Applicable Laws (including NYC Article 81.23(b)(2) and any successor provisions). Retail Manager shall monitor such pest control on at least a monthly basis to ensure compliance;
(b)Take good care of the Concession Area, Fixed Improvements and Refurbishments, and maintain the same at all times in good condition, except for reasonable wear and tear which does not adversely affect the efficient or the proper utilization thereof; including, without limitation, painting areas visible to the general public (to be painted only with high-quality paint and in colors which have been approved in advance and in writing by American and the Port Authority) and make all repairs and replacements, and do all rebuilding of the Fixed Improvements and Refurbishments, ordinary and extraordinary, partial and entire, foreseen and unforeseen, structural or otherwise, which repairs, replacements and rebuilding shall be in quality and class equal to or better than the original in materials and workmanship, and to pay promptly the cost and expense of all such repairs, replacements, rebuilding and maintenance;
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(c)Provide and maintain all fire protection and safety equipment and all other equipment of every kind and nature required by any applicable law, rule, ordinance, resolution or regulation, by the terms of this Agreement or by any insurance carrier providing insurance covering any portion of the Concession Area, the Fixed Improvements or the Refurbishments;
(d)Comply with all Applicable Laws with respect to the monitoring, repairs and maintenance of the Concession Area, including requiring Subtenants to clean grease traps and vents from an approved vendor pursuant to NYC Article 81.27(a) and any successor provisions; and
(e)Be responsible for the maintenance and repair of all utility service lines, meters and valves, including, without limitation, service lines for the supply of electric power, telephone and data transmission conduits and lines, located upon or exclusively serving the Concession Area.
8.2.2In the event Retail Manager or the Subtenants fail, subject to applicable notice and cure periods, to so maintain, clean, repair, replace, lamp, re-lamp, rebuild, paint, repaint or restore, then in addition to any other remedies provided herein, American may, at its sole election, and after giving Retail Manager at least one (1) day prior written notice thereof, or two (2) hours verbal or written notice to Retail Manager’s Concession Manager or Assistant Concession Manager, of conditions which by their nature require immediate attention to maintain normal activity at the Terminal, maintain, clean, repair, replace, lamp, re-lamp, rebuild, paint, repaint or restore all or any affected part of the Concession Area, Fixed Improvements or Refurbishments, and the cost thereof shall be due and payable by Retail Manager, or Subtenants at Retail Manager’s direction on demand along with an additional charge in an amount equal to 15% of the cost thereof.
8.2.3Subject to this Section 8.2.3 and Section 8.2.4 below, Retail Manager will, for itself, and will cause the Subtenants to, maintain and repair, at its/their own expense, any damages caused by their respective negligent or willful acts, omissions or operations, and to replace any property of American used by them that requires replacement by reason of its/their respective use thereof, reasonable wear and tear excepted, with property of equal or better quality. American may, in its sole discretion, perform said repairs on behalf of Retail Manager or the responsible Subtenant, or direct Retail Manager to perform said repairs on behalf of the responsible Subtenant, and the cost thereof shall be due and payable by Retail Manager or Retail Manager shall cause the responsible Subtenant to pay on demand along with an additional charge in an amount equal to 15% of the cost thereof.
8.2.4Retail Manager shall not, and shall not permit Subtenants to, install any fixture or make any alterations or improvements in or additions or repairs to any property of American or the Port Authority except with the prior written approval of American and the Port Authority.
8.2.5American shall be the sole judge of the quality of cleaning, maintenance and repair of Subtenant Premises and the Food Court, other public seating areas and other designated common areas in the Concession Area. American, or its authorized agents, may at any time, without notice, enter upon the Concession Area to determine if the cleaning, maintenance and repair requirements of this Article 8 and otherwise under this Agreement are being fulfilled. If American determines that the cleaning maintenance or repair of the Concession Area does not meet these requirements, American shall so notify Retail Manager and/or Subtenant in writing.
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If the cleaning, maintenance or repair required to be performed as provided in American’s notice to Retail Manager and/or Subtenant, as applicable, is not commenced within two (2) days after receipt of such written notice, or within two (2) hours after verbal notice to Retail Manager’s Concession Manager of a condition which by its nature requires immediate attention to maintain normal activity in the Terminal, or in either case is not diligently prosecuted to completion thereafter within applicable cure periods, American, or its agents, shall have the right to enter upon the Concession Area and perform the subject cleaning, maintenance or repair and Retail Manager and/or Subtenants, as applicable, agree to promptly reimburse American for the cost thereof along with an additional charge in an amount equal to 15% of the cost thereof.
8.3Access, Transport and Equipment Norms. Except as may be otherwise provided in the Rules and Regulations, or directed by American:
8.3.1Retail Manager and the Subtenants shall at all times use carts with pneumatic wheels and four-sided protective bumpers for transport of merchandise or supplies throughout the Terminal.
8.3.2The truck dock, service corridor and service elevator shall be managed by Retail Manager in accordance with Sections 6.3.1 and 7.2.1(s) and shall be used by Retail Manager and Subtenants for all deliveries as well as disposal of garbage and trash. Retail Manager and the Subtenants shall be responsible to exercise care not to litter or damage the floors, furnishings or improvements. American may prescribe hours during which supplies may be delivered to the Concession Area and trash may be removed; provided, however, American shall consult with Retail Manager to ensure that such hours are sufficient so that the Subtenants will be able to conduct their business operations as required by this Agreement and the Lease. Retail Manager and its Subtenants must use the Concession Area service elevator for delivery of supplies and removal of trash from the Concession Area. Retail Manager shall cause Subtenants to ensure goods are received in adequate condition and at the proper temperature pursuant to Applicable Laws (including NYC Article 81.17(f) and any successor provisions) prior to being transported to the Subtenant’s temperature controlled storage area pursuant to Applicable Laws (including NYC Article 81.18 and any successor provisions).
8.3.3In transporting to and from the Concession Area merchandise, products, trash and refuse associated with operating the Concession Area, Retail Manager and Subtenants shall (a) use only carts, vehicles, or conveyances that are sealed and leak proof and that are equipped with wheels suitable for operating on carpets or other flooring without damage thereto and which shall be approved by American, without unreasonable delay or condition and (b) ensure temperature-controlled items are delivered in a cold-holding box to ensure goods maintain a safe temperature below 41° F until they arrive. American shall have the right to require changes in Retail Manager’s and/or Subtenants’ transporting of merchandise, products, trash and refuse, including time of day transport can occur, and routes of transport; provided, however, American shall consult with Retail Manager to ensure that transportation procedures are sufficient so that Retail Manager and the Subtenants will be able to conduct their business operations as required by this Agreement and the Lease.
8.4Utility Services.
8.4.1Except as provided in this Section 8.4, neither American nor the Port Authority shall be obligated to perform or furnish any services or utilities whatsoever in connection with this Agreement or the use and occupancy of the Concession Area hereunder.
8.4.1.1Pursuant to the Lease, the Port Authority has agreed to sell, furnish and supply to American for use on the Premises and American has agree to take from the Port Authority and pay for electricity of the same voltage, phase and cycle as supplied to the Premises by the public utility in the vicinity, but limited however, to serve a maximum of the installed transformer capacity serving each portion of the Premises from time to time, at the same charge which would be made by such public utility for the same quantity under the same conditions and in the same service classification but in no event less than an amount that would reimburse the Port Authority for its cost of obtaining and supplying electricity to American thereunder.
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American hereby agrees to cause the Port Authority to sell, furnish and supply to Retail Manager for use in the Concession Area and Retail Manager hereby agrees to take from the Port Authority and pay for electricity of the same voltage, phase and cycle as supplied to the Premises by the Port Authority. Charges for electricity shall be payable by Retail Manager when billed by American or the Port Authority and the quantity of electricity consumed shall be measured by the meter or meters installed for the purpose by the Port Authority; provided, however, that if for any reason any meter or meters fail to record the consumption of electricity, the consumption during the period such meter or meters are out of service will be considered to be the same as the consumption for a like period either immediately before or after the interruption as elected by the Port Authority and/or American. In the event meters are not installed to measure the consumption of electricity, the quantity of such electricity used by Retail Manager and its Subtenants in the Concession Area will be based upon equitable estimates of consumption made by the Port Authority or American, which estimates shall be deemed binding on Retail Manager. The Port Authority has agreed under the Lease that it shall not discontinue the supply of electricity except upon fifteen (15) days’ notice to American (and American hereby agrees to promptly provide Retail Manager with any such notice) and unless a supply of electricity of the same voltage, phase and cycle (subject to the KVA limitation aforesaid) shall be available from another supplier. Upon any such discontinuance Retail Manager shall be at liberty to contract or otherwise arrange for the supply of such current after the expiration of the period specified in any notice provided by the Port Authority from any other Person, firm or corporation.
8.4.1.2Pursuant to the Lease, the Port Authority has agreed to sell, furnish and supply to American for use on the Premises cold water (of the character furnished by the City of New York) in reasonable quantities through existing pipes, mains and fittings and American has agreed to take such water from the Port Authority and to pay the Port Authority therefor an amount equal to that which would be charged by the municipality or other supplier of the same (whether or not representing a charge for water or other services measured by water consumption) for the same quantity, used under the same conditions and in the same service classification plus the cost to the Port Authority of supplying such water which shall not be less than 10% nor in excess of 50% of the amount charged. American hereby agrees to cause the Port Authority to sell, furnish and supply to Retail Manager for use in the Concession Area and Retail Manager hereby agrees to take from the Port Authority and pay for cold water supplied by the Port Authority to American pursuant to the Lease. The charge therefor shall be payable by Retail Manager when billed by American or the Port Authority and the quantity of water consumed shall be measured by the meter or meters installed for the purpose by the Port Authority; provided, however that if for any reason, any meter or meters fail to record the consumption of water, the consumption during the period such meter or meters are out of service will be considered to be the same as the consumption for a like period immediately before or after the interruption, as elected by the Port Authority or American. In the event meters are not installed to measure the consumption of water under high pressure, the quantity of such water used by Retail Manager and its Subtenants in the Concession Area will be based upon equitable estimates of consumption made by the Port Authority or American, which estimates shall be deemed binding on Retail Manager.
8.4.1.3Retail Manager shall pay to the Port Authority (or reimburse to American) such of the existing and future charges for sewerage services furnished by the City of New York as are presently or may hereafter be imposed or assessed against the Port Authority (or American) in respect of the Concession Area for Retail Manager’s (and Retail Manager’s Subtenants’) use and occupancy thereof.
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In the event that the City or the State of New York is now furnishing services with or without charge therefor, which are beneficial to Retail Manager and its Subtenants in their use and occupancy of the Premises, and shall hereafter impose charges or increase existing charges for such services, Retail Manager agrees to pay to the Port Authority (or reimburse to American) such of the charges or the increase in charges as may be imposed or assessed against the Port Authority (or American) in respect to the Concession Area or Retail Manger’s and its Subtenants’ use and occupancy thereof.
8.4.1.4 In the event the Port Authority shall provide extermination service for the enclosed areas of the Premises, Retail Manager agrees to utilize the same with respect to the Concession Area and to pay its pro rata share of the reasonable cost thereof upon demand. This paragraph does not impose any obligation on the Port Authority or American to furnish such service.
8.4.1.5 Neither American nor the Port Authority shall be obligated to perform or furnish any other services whatsoever in connection with the Premises or the Concession Area nor any services at any time while Retail Manager shall be in default under this Agreement after the period, if any, herein granted to cure such default shall have expired.
8.4.1.6 Neither American nor the Port Authority shall be under any obligation to supply services if and to the extent and during any period that the supplying of any such service or the use of any component necessary therefor shall be prohibited or rationed by any federal, state or municipal law, rule, regulation, requirement, order or direction and if American or the Port Authority deems it in the public interest to comply therewith, even though such law, rule, regulation, requirement, order or direction may not be mandatory on American or the Port Authority as a public agency.
8.4.1.7 No failure, delay or interruption in supplying agreed services (whether or not a separate charge is made therefor) shall be or be construed to be an eviction of Retail Manager or any Subtenant or grounds for any diminution or abatement of rental, or (unless resulting from the gross negligence or willful failure of the Port Authority or American) shall be grounds for any claim by Retail Manager for damages, consequential or otherwise.
8.4.2With respect to providing electrical services and consistent with Section 80 of the Lease, Retail Manager, as a collection agent for American, shall collect from all Subtenants that utilize portions of the Concession Area for food or beverage concessions, in the aggregate, as additional rent or otherwise, an amount equal to the actual cost to American of purchasing such electrical power, without mark up, and shall promptly pay such amounts to American. Except as set forth in the preceding sentence, Retail Manager may not charge its Subtenants for the utility services provided to it by American as additional rent. Food and beverage Subtenants shall be required to install separate check meters, at the food and beverage Subtenant’s sole cost and expense, to measure each food and beverage Subtenant’s actual consumption of electrical power for purposes of paying the costs of purchasing such electrical power.
8.4.3American shall not be liable for any interruption whatsoever in utility services not furnished by American, nor for interruptions in utility services furnished by American which are due to Force Majeure or which are necessary in connection with making any alterations, repairs or improvements. No such interruptions shall be construed as an eviction of Retail Manager or the Subtenants, nor entitle Retail Manager to any abatement of Rental, nor relieve Retail Manager or any Subtenant from fulfillment of any covenant or agreement set forth in this Agreement, except specifically provided below in this Section or as may be provided in an approved Sublease.
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8.4.4For the purposes of Retail Manager to invoice and collect such electricity costs incurred by American for food and beverage Subtenants, American shall use its reasonable efforts to determine the portion of those costs which should be allocated to each Subtenant via separate check meters to measure consumption (as described above), which allocation shall be conclusive and binding for purposes of this Agreement. American shall provide Retail Manager with monthly statements that Retail Manager shall provide to the respective Subtenants reflecting such electricity charges. Retail Manager shall cause Subtenant(s) to pay the amount of each such statement simultaneously with their next installment of Subtenant Rental. At the request of American made from time to time, Retail Manager shall provide to American evidence of the Subtenants’ payment of all such electricity costs.
8.4.1Retail Manager hereby expressly waives, and will cause each Subtenant to waive any and all claims for damages arising or resulting from failure or interruptions of utility services furnished by American or the Port Authority hereunder, if any, including, without limitation, electricity, gas, water, plumbing, sewage, telephone communications, heating, ventilation, air conditioning, from the failure or interruption of any public or customer conveniences, in each case unless caused by American’s gross negligence or willful misconduct, without prejudice to the rights (x) Subtenants may have under an approved Sublease to seek a rent abatement if prevented from opening to the public for more than two (2) days by an interruption in utility services (in which case, the amounts which would have been payable by Subtenant to Retail Manager had it not been for such abatement shall be deemed paid for purposes of calculating the Minimum Guaranteed Rental Shortfall) or (y) of Retail Manager under Section 8.4.2.
8.5Refurbishments. For Subtenants whose occupancy will exceed five (5) years, whether under the original term of their Sublease or an extension, Retail Manager agrees that by no later than five (5) years after the date of beneficial occupancy of a Subtenant of its Subtenant Premises, it will cause Subtenants to spend and invest as a mid-term reinvestment (in each case with the manner and source of such expenditure and investment being subject to the same procedures applicable to Fixed Improvements [**] Refurbishments or other upgrade of the Fixed Improvements. Retail Manager shall obtain from Subtenants and provide to American such back-up data as American may reasonably request to confirm that such Refurbishment and upgrade has been made by the Subtenant(s).
8.6Reservation of Rights by American. American and the Port Authority shall have the right, without any obligation to do so, during the hours of operation of the Subtenants within the Concession Area and as often as either considers necessary or appropriate: (i) upon reasonable notice (provided no notice shall be required during any real or threatened emergency) to enter thereon to make repairs, alterations, or replacements to any property of American or the Port Authority, and (ii) in the event of an emergency, to take such action thereon as may be required for the protection of persons or property and, if Retail Manager or the Subtenants are otherwise obligated under this Agreement and/or Sublease to perform such work or take such action, the cost thereof shall be due and payable by Retail Manager or Retail Manager shall cause Subtenant to pay on demand along with an additional charge in an amount equal to 15% of the cost thereof.
8.6.1Retail Manager shall assure to American and the Port Authority emergency access to all enclosed areas of the Concession Area either by delivering keys to the Concession Area to American’s JFK Control Center Manager (or such other person designated by American) or by providing emergency telephone numbers by which the Concession Manager, Assistant Concession Manager(s) and/or a Subtenant’s store manager, as the case may be, can be reached on a 24-hour basis, seven (7) days a week.
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8.6.2Without limiting the generality of the foregoing, American and the Port Authority, and their respective directors, officers, employees, agents, representatives, contractors, and furnishers of utilities and other services, shall have the right from time to time, at their own cost and expense, for their own benefit, for the benefit of Retail Manager, its Subtenant(s) or for the benefit of others at the Terminal and/or Airport (other than Retail Manager) (i) to construct and maintain existing and future utility and other systems, (ii) to enter upon the Concession Area at all reasonable times and upon reasonable notice (provided no notice shall be required during any real or threatened emergency) to inspect any part of the Concession Area, and to make such repairs, replacements or alterations thereto as may, in the opinion of American or the Port Authority, be deemed necessary or advisable, (iii) to construct or install over, in or under parts of the Concession Area otherwise not conveniently accessible, and (iv) for the Port Authority or American, to install, operate, maintain, recover and repair the property used in connection with their respective Reserved Uses; provided, in each case in the exercise of such rights of access, maintenance, repair, replacement, alteration or new construction, American shall not unreasonably interfere with the use and occupancy of the Concession Area by Retail Manager or the Subtenants pursuant to the provisions of this Agreement.
8.6.3In the event that any movable property of Retail Manager or the Subtenants shall obstruct the access of American or the Port Authority, its employees, agents or contractors to any of the existing or future utility, mechanical, electrical and other systems and thus shall interfere with the inspection, maintenance or repair of any such system, Retail Manager or the appropriate Subtenant shall move such property, as directed by American or the Port Authority, in order that access may be had to the system or part thereof for its inspection, maintenance or repair, and, if Retail Manager or the appropriate Subtenant shall fail to so move such property after direction from American or the Port Authority to do so, American or the Port Authority may move it and Retail Manager and the Subtenants shall pay the cost of such moving upon demand. In the case of Fixed Improvements or Refurbishments installed by or on behalf of Retail Manager or a Subtenant which were approved by American and the Port Authority, and thereafter are required to be moved for the reasons provided above, American, at its cost, may move the same and upon completion of the inspection, maintenance or repair, American will restore such permanent Fixed Improvements or Refurbishments and repair any damage caused by such removal and restoration to the same or better condition as existed immediately prior to such removal.
8.6.4At any time and from time to time during ordinary hours of operation of the Concession Area upon reasonable notice, American and the Port Authority, for and by its agents and employees, whether or not accompanied by occupiers or users of the Concession Area, shall have the right to enter on the Concession Area for the purpose of viewing all parts of the same and exhibiting it to third parties.
8.6.5No acceptance by American or the Port Authority of rentals, fees, charges or other payments in whole or in part for any period or periods after a default of any of the terms, covenants and conditions hereof to be performed, kept or observed by Retail Manager or the Subtenants shall be deemed a waiver of any right on the part of American to terminate this Agreement.
8.6.6Nothing in this Article 8 or elsewhere in this Agreement may be construed to impose upon American or the Port Authority any obligations to construct or maintain or to make repairs, replacements, alterations or additions in or to the Concession Area, or to create any liability for any failure so to do, with the sole exception of American’s obligations under Section 8.2. Retail Manager and the Subtenants are and shall be in exclusive control and possession of the Concession Area, and American and the Port Authority shall not be liable as result of the reservation of rights under this Section 8.6 or elsewhere in this Agreement or the exercise of any such reserved right for any injury or damage to any property or to any person happening on or about the Concession Area nor for any injury or damage to the Concession Area or any property of Retail Manager, the Subtenants or of any other invitee located in or thereon unless caused by the respective gross negligence or willful misconduct of American or the Port Authority (in which case American and the Port Authority shall be responsible only for the actual damages or injury caused by its own respective gross negligence or willful misconduct).
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9.SUSTAINABILITY EFFORTS.
9.1Retail Manager Bound by American Sustainability Requirements. Retail Manager acknowledges that American is subject to extensive sustainability requirements under the Lease. Retail Manager and the Subtenants agree to comply at all times with and to be bound by such sustainability initiatives requirements, to the extent applicable to the Concession Area. Accordingly, Retail Manager shall use good faith efforts to achieve the goals for sustainability and implement and manage the sustainability initiatives set forth in Exhibit N attached hereto. At no cost to Retail Manager, American shall provide Retail Manager with space in the Terminal as shown on Exhibit P attached hereto, outside of the Concession Area for complying with sustainability requirements hereunder (e.g., for composting). Prior to construction of any Fixed Improvements and Refurbishments, Retail Manager shall deliver to American and the Port Authority for their review and approval a plan for compliance by Subtenants with the terms of this Article 9 and Exhibit N and shall execute such plan and comply with Article 9 and Exhibit N during the Term. American’s approval of such plan shall not be unreasonably withheld, conditioned or delayed. In addition to and without limiting the foregoing, Retail Manager shall also, at a minimum:
9.1.1Implement low-carbon solutions and ensure that the Terminal achieves the highest levels of environmental certification;
9.1.2Deliver sustainability mission-driven brands in the Concession Program;
9.1.3Boost voluntary Corporate Social Responsibility agreements among the Subtenants;
9.1.4Support sustainable store development;
9.1.5Cause every eligible Subtenant in the food and beverage space to become a Certified Green Restaurant®;
9.1.6Operate with the highest environmental standards;
9.1.7Promote responsible consumption in the Concession Program;
9.1.8Leverage technology, innovations and partnerships to reduce Retail Manager’s environmental footprint and foster sustainability;
9.1.9Ban Subtenants from using non-ecofriendly materials (e.g. Styrofoam) for disposable consumer packaging, and ensure they are replaced with certified biodegradable or high-recycled content materials;
9.1.10Ensure that cleaning and sanitation products are eco-friendly certified;
9.1.11Encourage Subtenants to use non-disposable items where possible according to health and safety standards, and to use 100% recycled paper for office/printing uses;
9.1.12Cause all solid waste in the Concession Area to be source-separated into the following categories: recyclable items (e.g. cardboard, clean paper, glass, metals, plastic), compostable items (e.g. organic food waste or food waste contaminated paper marked with “7” as applicable) and nonrecyclable/non-compostable refuses; 9.1.13Cause Subtenants to provide designated receptacles and an area for waste collection;
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9.1.14Continually evaluate sustainability performance by monitoring landfill and recycled content trends, and requesting tonnage reports from Retail Manager’s waste hauler to drive efficiencies over time;
9.1.15Require Subtenants to establish a plan for surplus food donation to be phased in over term of their Sublease, with at least the following percentage of all pre-packaged surplus food donated: (a) in the first year following the Effective Date, 60%; (b) in the second year following the Effective Date, 90%; and (c) at all times thereafter, 100%;
9.1.16Encourage donations for all surplus food that is not pre-packaged, to the greatest extent allowable by food safety regulations;
9.1.17Encourage each Subtenant to have a minimum level of LEED credits;
9.1.18Compost waste from the Terminal; and
9.1.19Audit all Subtenants at least twice annually for compliance with the sustainability requirements set forth in this Agreement, and deliver the information resulting from such audit to American and the Port Authority.
9.2Sustainability Goals. Retail Manager specifically acknowledges and agrees that the initiatives set forth in Exhibit N may be revised or updated from time to time by the Port Authority and that, accordingly, American and/or the Port Authority may from time to time, by notice to Retail Manager, provide to Retail Manager a revised or updated form of such Exhibit N to replace the Exhibit N currently attached to and forming a part of this Agreement. Such replacement Exhibit N shall, from the effective date of such notice, be deemed to constitute an integral part of this Agreement. To the extent Retail Manager assumes any Existing Tenant Sublease which does not conform with the requirements of this Article 9, then any such Existing Tenant Sublease is hereby required to be modified to conform with such requirements and shall be required to be modified to conform to any future revision and/or update within sixty (60) days from the Commencement Date.
9.3Documentation. In meeting the sustainability initiatives described in this Article 9, Retail Manager shall submit to American and the Port Authority for their review and approval a sustainability plan, including the specific sustainability steps to be taken by Retail Manager to meet its aforesaid commitment, within sixty (60) days from the Commencement Date. Retail Manager shall incorporate in its said sustainability plan such revisions and changes which American or the Port Authority initially or from time to time may reasonably require. Throughout the Term, Retail Manager shall document its efforts to ensure sustainability initiative compliance, shall keep American and the Port Authority fully advised of its progress in implementing such plan and shall supply to American and the Port Authority such information, data and documentation with respect thereto as either American or the Port Authority may from time to time and at any time request, including but not limited to annual reports.
9.4Non-Compliance. Retail Manager’s noncompliance with the provisions of this Article 9 shall constitute a material breach of this Agreement. However, if Retail Manager’s non-compliance is a consequence of one or more Subtenants’ acts or omissions, Sections 14.1.1(m) and (n) will apply. In the event of the breach by Retail Manager of any of the above sustainability provisions, the Port Authority and American may take appropriate action to enforce compliance; or in the event such noncompliance shall continue for a period of twenty (20) days after receipt of written notice from the Port Authority, the Port Authority shall have the right to terminate the Operator Permit and the letting hereunder with the same force and effect as a termination by the Port Authority pursuant to the terms of the Lease, or may pursue such other remedies as may be provided by law; and as to any or all the foregoing, the Port Authority may take such action as the United States may direct.
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10.RESERVED USES.
10.1Reservations by the Port Authority and American. Retail Manager acknowledges that under the Lease the Port Authority has reserved exclusively to itself and its designees, and American hereby reserves, exclusively to itself and its designees, the right in the Concession Area, (except within any Subtenant Premises), to implement, conduct, control and receive any rents, fees or profits with respect to any of the Reserved Uses, as applicable.
10.2Reserved Uses Generally. Retail Manager shall permit the Port Authority and American (and any party specifically authorized by the Port Authority or American, as applicable) to engage in the Reserved Uses at the Concession Area outside of Subtenant Premises and to install, operate, maintain and repair the property used in connection therewith (with access rights as established in Section 8.6.2 for American, and as established in the Lease for the Port Authority), in such locations as Retail Manager and American may reasonably agree, for American Reserved Uses, and, for Port Authority Reserved Uses, where determined by the Port Authority, provided that to the extent American has advance knowledge of the Port Authority’s Reserved Uses, American will consult with Retail Manager and cooperate in raising any issues or alternative recommendations of Retail Manager regarding such locations with the Port Authority. American, at its expense, shall provide the necessary wires and conduits for the supply of electricity and telephone and other communications interconnections for the American Reserved Uses. Retail Manager has no responsibilities, duties, obligations and/or liabilities other than as are specifically described in this Agreement (e.g., to permit repair access) with respect to the Reserved Uses.
10.3Reserved Uses Incidental to Concessions Operations. If Retail Manager identifies a prospective foreign currency exchange service Subtenant that also offers insurance and/or travel services (both being American Reserved Uses) incidental to such foreign currency exchange service, American will not unreasonably decline to waive its Reserved Uses for this purpose, provided that the Subtenant and American can agree to a reasonable compensation arrangement and that the American Reserved Uses the Subtenant offers can be separately accounted for so that American and the Port Authority retain their separate rights to this revenue.
11.AFFIRMATIVE ACTION AND NONDISCRIMINATION.
11.1Retail Manager Bound by American Requirements. Retail Manager acknowledges that American is subject to extensive affirmative action requirements of the Port Authority under the Lease. Retail Manager and the Subtenants agree to comply at all times with and to be bound by such affirmative action requirements of the Port Authority. Prior to construction of any Fixed Improvements and Refurbishments, Retail Manager shall deliver to American and the Port Authority for their review and approval a plan for compliance by Subtenants with the terms of this Article 11 and Exhibit J and shall execute such plan and comply with Article 11 and Exhibit J during the Term. American’s approval of such plan shall not be unreasonably withheld, conditioned or delayed.
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11.2Non-Discrimination.
11.2.1Agreement Covenants:
11.2.1.1Without limiting the generality of any of the provisions of this Agreement, Retail Manager, for itself, its successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that (i) no person on the grounds of race, creed or religion, color, sex or national origin, handicap or disability, or age shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of the Concession Area by it, or in the exercise of a privilege under the Operator Permit, (ii) in the construction by or on behalf of Retail Manager or any Subtenants of any improvements on, over, or under the Concession Area and furnishing of services thereon by Retail Manager or any Subtenant, no person on the ground of race, creed or religion, color, sex or national origin, handicap or disability, or age shall be excluded from participation, denied the benefits of, or otherwise be subject to discrimination, and (iii) Retail Manager and the Subtenants shall use the Concession Area 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, Non-discrimination 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, and any other Applicable Laws or Applicable Standards, which from time to time may be applicable to Retail Manager’s and/or Subtenant’s operations at the Concession Area, whether by reason of agreement between the Port Authority and the United States Government or otherwise.
11.2.1.2Without limiting the generality of any of the provisions of this Agreement, Retail Manager, for itself, its successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that Retail Manager and each Subtenant shall use the Concession Area in compliance with all other requirements imposed by or pursuant to all nondiscrimination requirements set forth in Title VI Pertinent Nondiscrimination Acts and Authorities, as further described in Exhibit M (“FAA Nondiscrimination Requirements”).
11.2.2Other Agreements:
11.2.2.1Retail Manager shall include the substantive provisions of Section 11.2.1 in every Sublease, agreement or concession it may make pursuant to which any Person or Persons, other than Retail Manager, operates any facility at the Concession Area providing services to the public at the time such Sublease, agreement or concession is entered into or materially modified to the extent such Sublease, agreement or concession is subject to acts and regulations prohibiting nondiscrimination in federally-assisted programs of the United States Department of Transportation, and shall also include therein a provision granting the Port Authority a right to take such action as the United States may direct to enforce such covenant. Further, Retail Manager shall include the provisions of Exhibit M (FAA Nondiscrimination Requirements) in every Sublease, agreement or concession it may make pursuant to which any Person or Persons, other than Retail Manager, operates any facility at the Concession Area providing services to the public at the time such Sublease, agreement or concession is entered into or materially modified.
11.2.2.2In addition to and without limiting any terms and provisions of this Agreement, Retail Manager shall, and shall include the following provisions in every Sublease, contract or purchase order with respect to the Concession Area (or any portion thereof), in such a manner that such provisions will be binding upon each Subtenant, contractor or vendor as to its work in connection with the applicable Sublease, contract or purchase order.
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(a)Retail Manager, the Subtenant, contractor or vendor shall agree to comply with all applicable federal, state and local laws, ordinances, rules, regulations, and orders that pertain to equal employment opportunity, affirmative action, and non-discrimination in employment.
(b)At the request of either the Port Authority or American, Retail Manager, the Subtenant, contractor or vendor shall request such employment agency, labor union or authorized representative of workers with which it has a collective bargaining or other agreement or understanding and which is involved in the performance of the Sublease, contract or purchase order with Retail Manager to furnish a written statement that such employment agency, labor union or representative shall not discriminate because of race, color, national origin, creed/religion, sex, age or handicap/disability, and that such union or representative will cooperate in the implementation of the Subtenant’s, contractor’s or vendor’s obligations hereunder; and
(c)Retail Manager, the Subtenant, contractor or vendor will state, in all solicitations or advertisements for employees placed by or on behalf of the Subtenant, contractor or vendor in the performance of the Sublease, contract or purchase order, that all qualified applicants will be afforded equal employment opportunity without discrimination because of race, color, national origin, creed/religion, sex, age or handicap/disability.
11.2.3Non-Compliance. Retail Manager’s noncompliance with the provisions of this Section 11.2 shall constitute a material breach of this Agreement, subject to applicable notice and cure periods. However, if Retail Manager’s non-compliance is a consequence of one or more Subtenants’ acts or omissions, Sections 14.1.1(m) and (n) will apply. In the event of the breach by Retail Manager of any of the above nondiscrimination provisions the Port Authority and American may take appropriate action to enforce compliance; or in the event such noncompliance shall continue for a period of twenty (20) days after receipt of written notice from the Port Authority the Port Authority shall have the right to terminate the Operator Permit and the letting hereunder with the same force and effect as a termination by the Port Authority pursuant to the terms hereof and the terms of the Lease, or may pursue such other remedies as may be provided by law; and as to any or all the foregoing, the Port Authority may take such action as the United States may direct.
11.2.4Indemnification. Retail Manager shall indemnify and hold harmless the American Indemnitees and the Port Authority from any third-party Claims resulting from Retail Manager’s or any Subtenant’s, contractor’s or vendor’s non-compliance with any of the provisions of this Section 11.2 and Retail Manager shall pay or reimburse the American Indemnitees for any loss or expense incurred by reason of such non-compliance. The foregoing does not limit the obligation of Retail Manager to include clauses in the Subleases under which Subtenants fully indemnify the American Indemnitees and the Port Authority directly for such liability; provided, however, that Retail Manager’s obligation to indemnify American Indemnitees and the Port Authority pursuant to this Section 11.2.4 shall apply if the Subtenant fails to provide such indemnification (pursuant to its Sublease terms) to American within ten (10) days after American notifies Retail Manager of such noncompliance and demands indemnification with respect thereto (provided that American’s failure to notify Retail Manager of such noncompliance shall not excuse Retail Manager’s indemnification obligations hereunder).
11.2.5Compliance with Laws. The Retail Manager specifically agrees, as part of its obligation to comply with all Applicable Laws and Applicable Standards during the Term, that it shall comply with 49 C.F.R. Part 26 and 49 C.F.R. Part 23, as the same may be amended from time to time. In addition, the Port Authority may from time to time, by written notice to American and Retail Manager, provide to American and Retail Manager specific provisions that the Port Authority determines may be required by 49 C.F.R.
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Part 26 and/or 49 C.F.R. Part 23, to be attached to and form a part of this Agreement. Such specific provisions, from the effective date of such notice, shall be deemed to constitute an integral part of this Agreement. Further, Retail Manager agrees to observe and obey (including by passing such obligations to Subtenants; provided that this will in no way relieve Retail Manager of its obligations hereunder) the Applicable Standards applicable to the Premises and/or the Airport, the operations of Retail Manager on the Premises or at the Airport in connection with this Agreement, and/or the occupancy or use of the Premises, as may from time to time during the Term hereof as promulgated by the Port Authority in the public interest or for reasons of security, safety, health, sanitation, Good Order Requirements, preservation of property, maintenance of a good and orderly appearance of the Airport, quality passenger experience and the economic and/or the safe and efficient operation of the Airport.
11.2.6No Additional Rights. Nothing contained in this Section 11.2 shall grant or shall be deemed to grant to Retail Manager the right to transfer or assign this Agreement, to make any agreement or concession of the type mentioned in Section 11.2.2, or any right to perform any construction on the Premises.
11.2.7In addition to and without limiting the foregoing, Retail Manager shall also:
11.2.7.1Within sixty (60) days following the Effective Date, create an online retail hub that provides information for anyone interested in learning about how to get involved in the Concession Program, from employees to entrepreneurs and contractors, such website shall provide project information, enable businesses to register for Retail Manager’s Diverse Supplier Database, and allow jobseekers to search for new opportunities. Users will also be able to register to join Retail Manager’s email list to stay apprised of all the latest news and opportunities.
11.2.7.2By leveraging popular social media channels, such as LinkedIn and Retail Manager’s broad partner network, Retail Manager shall amplify messages and promote opportunities via social sharing.
11.2.7.3Within sixty (60) days following the Effective Date, Retail Manager shall, in consultation with American and the Port Authority, create an event to broadly target prospective tenants and operators, with specific focus on Queens-based restaurateurs interested in participating in the Food Hall.
11.2.7.4Within ninety (90) days following the Effective Date, Retail Manager shall, in conjunction with Project Destined and York College, launch Retail Manager’s T8 Fellowship Program to provide education, training, and mentorship for Queens students (including with respect to the airport business) and build a pipeline of talent for long-term opportunities in management roles.
11.2.7.5Regularly issue engaging and dynamic email communications with the latest opportunities to a broad audience of hyperlocal, regional, industry, and global contacts, segmented by interest type (e.g. job opportunities, contracting, leasing, etc.) to ensure relevant and impactful communications with clear calls to action.
11.2.7.6Advertise and promote opportunities in local publications like The Queens Chronicle, Jamaica Times, Airport Voice, Queens Latino, Harlem News, and Black Long Island, as well as industry publications and organizations like the Airport Minority Advisory Council.
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11.2.7.7Offer virtual events (which may include virtual “office hours” to answer questions) and in-person events, in each case on key topics such as contracting, airport operations and how to become ACDBE certified, to build capacity through education, facilitate networking opportunities, and promote opportunities. Such virtual and in-person events will occur in accordance with a mutually agreed upon schedule between Retail Manager and American as the parties work through the Development Plan.
11.2.7.8Host educational series, networking events and job fairs to attract local candidates for new opportunities in the expanded program, all timed around key development milestones and leasing activity.
11.2.7.9Continue to build on partnerships with local stakeholder organizations to promote current opportunities, and upcoming cross-promotion opportunities via their respective websites, social media channels, and email marketing.
11.2.7.10Promote ACDBE and LBE retailers in the Terminal through virtual storefronts and other digital showcasing of such retailers.
11.2.7.11Provide the outreach, resources and events related to ACDBE as detailed in Retail Manager’s Proposal.
11.3 |
Affirmative Action. |
11.3.1Non-Discrimination. Retail Manager shall, with respect to its own activities, and shall cause Subtenants, for their respective operations to, not discriminate against employees or applicants for employment, including in recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff, termination, rates of pay or other forms of compensation, and selections for training or retraining, including apprenticeship and on-the-job training, because of race, creed or religion, color, sex, national origin, handicap or disability, or age.
11.3.2Implementation. In addition to and without limiting any other term or provision of this Agreement, including, without limitation, Section 11.2.1.1, and Exhibits J, K and L, it is hereby agreed that Retail Manager shall, and shall cause each Subtenant, contractor or vendor to, in connection with the Concession Area (or any portion thereof), commit itself throughout the Term to and use good faith efforts to implement an extensive program of affirmative action, including specific affirmative action steps to be taken by Retail Manager, to ensure maximum opportunities for employment and contracting by disadvantaged individuals and businesses, minorities and women. Such good faith efforts may be evidenced by, among other efforts, the establishment of programs addressing recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff, termination, rates of pay or other forms of compensation, and selections for training or retraining, including apprenticeship and on-the-job training. In meeting such commitment, Retail Manager agrees to submit to American and the Port Authority for its review and approval Retail Manager’s extensive affirmative action program. Retail Manager shall incorporate in its affirmative action program such revisions and changes which American and the Port Authority initially or from time to time may require. Throughout the Term, Retail Manager shall document its efforts in implementing such program, shall keep American and the Port Authority fully advised of Retail Manager’s progress in implementing such affirmative action program and shall supply to American and the Port Authority such information, data and documentation with respect thereto as American and the Port Authority may from time to time and at any time request, including but not limited to annual reports.
11.3.3Non-Compliance. Retail Manager’s noncompliance with the provisions of this Section 11.3 shall constitute a material breach of this Agreement, subject to applicable notice and cure
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periods. However, if Retail Manager’s non-compliance is a consequence of one or more Subtenants’ acts or omissions, Sections 14.1.1(m) and (n) will apply. In the event of the breach by Retail Manager of any of the above nondiscrimination provisions the Port Authority and/or American may take appropriate action to enforce compliance; or in the event such noncompliance shall continue for a period of twenty (20) days after receipt of written notice from the Port Authority, the Port Authority shall have the right to terminate the Operator Permit and the letting hereunder with the same force and effect as a termination by the Port Authority pursuant to the terms hereof and the terms of the Lease, or may pursue such other remedies as may be provided by law; and as to any or all the foregoing, the Port Authority may take such action as the United States may direct.
11.3.4Other Governmental Requirements. In the implementation of this Section 11.3, American and the Port Authority may consider compliance by Retail Manager and any Subtenant with the provisions of any federal, state or local law concerning affirmative action equal employment opportunity which are at least equal to the requirements of this Section 11.3, as effectuating the provisions of this Section 11.3. If the Port Authority determines that by virtue of such compliance with the provisions of any such federal, state or local law that the provisions hereof duplicate or conflict with such law the Port Authority and American may waive the applicability of the provisions of this Section 11.3 to the extent that such duplication or conflict exists.
11.4Retail Manager’s Ongoing Minority-Owned Business Enterprises Women-Owned Business Enterprises Commitment and Local Business Enterprises Commitment.
11.4.1Disadvantaged, Minority Business Enterprises and Women-Owned Business Enterprises Commitment.
11.4.1.1In addition to, and without limiting, any other term or provision of this Agreement, it is hereby agreed that Retail Manager, in connection with its continuing management, maintenance and repair of the Concession Area, or any portion thereof, in connection with the construction by or on behalf of Retail Manager or any Subtenants of any improvements on, over, or under the Concession Area and in connection with every award or agreement for concessions or consumer services at the Concession Area (including Subleases), shall throughout the Tenn commit itself to and use good faith efforts (as described in Exhibit J hereto) to implement an extensive program to ensure maximum opportunities for MBEs and WBEs in accordance with Exhibit J.
11.4.1.2Retail Manager specifically acknowledges and agrees that the requirements set forth in Exhibit J may be revised or updated from time to time by the Port Authority and that, accordingly, American and/or the Port Authority may from time to time, by notice to Retail Manager, provide to Retail Manager a revised or updated form of such Exhibit J to replace the Exhibit J currently attached to and forming a part of this Agreement. Such replacement Exhibit J shall, from the effective date of such notice, be deemed to constitute an integral part of this Agreement. To the extent Retail Manager assumes any Existing Tenant Sublease which does not conform with the requirements of this Section 11.4.1, then any such Existing Tenant Sublease is hereby required to be modified to conform with such requirements and shall be required to be modified to conform to any future revision and/or update within sixty (60) days from the Commencement Date.
11.4.1.3[**]
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11.4.2Local Business Enterprises Commitment.
11.4.2.1In addition to, and without limiting any other term or provision of this Agreement, it is hereby agreed that Retail Manager, in connection with its continuing management, maintenance and repair of the Concession Area, or any portion thereof, and in connection with every award or agreement for concessions or consumer services at the Concession Area (including Subleases), shall throughout the Term commit itself to and use good faith efforts to develop concession space for LBEs and to otherwise use good faith efforts (as described in Exhibit K hereto) to implement an extensive program to ensure maximum opportunities for LBEs in accordance with Exhibit K. In addition to the foregoing, Retail Manager shall (a) [**]
11.4.2.2Retail Manager specifically acknowledges and agrees that the requirements set forth in Exhibit K may be revised or updated from time to time by the Port Authority and that, accordingly, American and/or the Port Authority may from time to time, by notice to Retail Manager, provide to Retail Manager a revised or updated form of such Exhibit K to replace the Exhibit K currently attached to and forming a part of this Agreement. Such replacement Exhibit K shall, from the effective date of such notice, be deemed to constitute an integral part of this Agreement. To the extent Retail Manager assumes any Existing Tenant sublease which does not conform with the requirements of this Section 11.4.2, then any such Existing Tenant sublease is hereby required to be modified to conform with such requirements within sixty (60) days from the Commencement Date and shall be required to be modified to conform to any future revision and/or update.
11.4.3Documentation. In meeting Retail Manager’s commitment to ensure maximum opportunities for MBE’s and WBE’s in accordance with the provisions of Section 11.4.1 and to ensure maximum opportunities for LBE’s in accordance with the provision of Section 11.4.2, Retail Manager shall submit to American and the Port Authority for its review and approval its affirmative action program, including the specific affirmative action steps to be taken by Retail Manager to meet its aforesaid commitment, within sixty (60) days from the Commencement Date. Retail Manager shall incorporate in its said affirmative action program such revisions and changes which American and the Port Authority initially or from time to time may reasonably require. Throughout the Term, Retail Manager shall document its efforts in programs to ensure maximum opportunities for MBEs and WBEs and to maximize the use of LBEs in accordance with this Section 11.4, shall keep American and the Port Authority fully advised of is progress in implementing the such programs and shall supply to American and the Port Authority such information, data and documentation with respect thereto as either American or the Port Authority may from time to time and at any time request, including but not limited to annual reports.
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11.4.4 |
Non-Compliance. |
11.4.4.1Retail Manager’s non-compliance with the provisions of this Section 11.4 shall constitute a material breach of this Agreement, subject to applicable notice and cure periods. However, if Retail Manager’s non-compliance is a consequence of one or more Subtenants’ acts or omissions, Sections 14.1.1(m) and (n) will apply. In the event of the breach by Retail Manager of any of the above provisions, American or the Port Authority may take any appropriate action to enforce compliance, and in the event such non-compliance shall continue for a period of twenty (20) days after receipt of written notice from American or the Port Authority, American or the Port Authority, as applicable, shall have the right to terminate this Agreement and/or Operator Permit with the same force and effect as a termination for default by Retail Manager in the performance or observance of any other term or provision of this Agreement and/or Operator Permit, or may pursue such other remedies as may be provided by law.
11.4.4.2Without limiting the provisions of Section 11.4.3 above and in addition thereto, in the event of the breach by Retail Manager of any of the provisions of Section 11.4.1.1, the Port Authority may, in its discretion, take any of the actions identified in Part II of Exhibit J.
11.4.5Compliance Standards. Nothing herein provided may be construed as a limitation upon the application of any laws, which establish different standards of compliance or upon the application of legal requirements for the hiring of local or other area residents.
11.4.6Grants for Concessions. Nothing in this Section shall grant or be deemed to grant to Retail Manager the right to make any agreement or award for concessions or consumer services at the Airport.
11.5 |
Airport Concession Disadvantaged Business Enterprise. |
11.5.1This Agreement shall be subject to the requirements of the United States Department of Transportation’s regulations, 49 C.F.R. Part 23. Retail Manager agrees that it will not discriminate against any business owner because of the owner’s race, color, national origin or sex in connection with the award or performance of any concession agreement or any management contract, or subcontract, purchase or lease agreement or other agreement covered by 49 C.F.R. Part 23. Retail Manager agrees to include the above statements in any concession agreement or contract covered by 49 C.F.R. Part 23 that it enters into (including any supplements, amendments or renewals to any Existing Tenant agreement or contracts covered by 49 C.F.R. Part 23 that it enters) and cause those businesses to similarly include the statements in further agreements. Further, Retail Manager agrees to take all necessary and reasonable steps to comply with the terms and provisions of Exhibit L (Airport Concession Disadvantaged Business Enterprise (ACDBE) Participation), attached hereto and hereto made a part hereof (the “Airport Concession Disadvantaged Business Enterprise” or “ACDBE Program”). Without limiting the foregoing, Retail Manager shall not, without the prior written consent of American and the Port Authority:
(a)terminate a concession sublease with a Subtenant if such Subtenant is an Airport Concession Disadvantaged Business Enterprise, as defined in 49 C.F.R. Part 23 (an “ACDBE”), or terminate any contract or agreement for the sale of goods or services by an ACDBE to which the Subtenant is a party;
(b)refuse to extend or renew a sublease with an ACDBE Subtenant if such sublease contains an express right of extension or renewal and the conditions thereto have been satisfied by the ACDBE Subtenant; or (c)enter into a sublease with a non-ACDBE Subtenant for service or space which had been performed or occupied by an ACDBE Subtenant;
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provided, that American agrees that its consent to any of the foregoing shall not be withheld if the applicable action of Retail Manager is (1) based on a non-discriminatory determination by the Subtenant under the applicable facts, or (2) is otherwise consistent with the requirements of 49 C.F.R. Part 23.
11.5.2As part of its compliance with the requirements of the ACDBE Program, Retail Manager shall commit itself to and use good faith efforts to include meaningful participation by ACDBE certified businesses. Specific examples of such efforts shall be integrated into all applicable activities undertaken by Retail Manager or any of its Subtenants and may include, but not be limited to, the following:
(a)Subdividing work, services or Terminal space to be subcontracted into smaller portions where feasible to provide more opportunities for certified ACDBEs;
(b)Encouraging the formation of joint ventures, partnerships or similar arrangements to increase the likelihood of achieving program participation goals;
(c)Providing sufficient documents, drawings and specifications for prospective opportunities to ACDBEs in sufficient time for their review;
(d)Regularly attending and participating in ACDBE workshops, educational programming and pre-bid meetings scheduled by the Port Authority;
(e)Organizing ACDBE workshops, educational programs and pre-bid meetings to which the Port Authority is invited to attend;
(f)Actively soliciting bids from ACDBEs, including circulation of solicitations to MBEs and WBEs;
(g)Maintaining records detailing efforts to provide for meaningful participation in the Program, including names and addresses of all ACDBEs contacted, and if the ACDBE is not selected, the reason for that decision;
(h)Advertising in general circulation media, trade association publications and minority-focused media for a reasonable period before commencement of a contract;
(i)Utilizing the Port Authority’s directory of certified ACDBEs (available online at http://www.panynj.gov/supplierdiversity) or proposing for certification other ACDBEs that meet the criteria for certification and are capable of providing the services required;
(j)Soliciting proposals from and actively considering local ACDBEs who are qualified;
(k)Soliciting specific recommendations on methods for enhancing ACDBE participation from Port Authority staff responsible for supplier diversity;
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(1)Attending participation goal progress meetings scheduled by the Port Authority to discuss good faith efforts to include meaningful participation by ACDBEs, as well as any issues regarding ACDBE providers;
(m)Utilizing services of available minority and women’s community organizations, contractors’ groups, local, state and federal business assistance and development offices, and other organizations that assist ACDBEs;
(n)Where appropriate, not requiring bonds from ACDBEs, or providing bonds and insurance for ACDBEs;
(o)Nominating ACDBEs for participation in business assistance programs sponsored by the Port Authority or the Regional Alliance for Small Contractors; and
(p)Developing and holding targeted outreach events to increase ACDBE participation for specific work or services.
11.5.3Documentation. In meeting Retail Manager’s commitment to comply with the ACDBE Program as set forth in Sections 11.5.1 and 11.5.2 above, Retail Manager shall submit to American and the Port Authority for its review and approval its ACDBE outreach efforts, including the specific affirmative action steps to be taken by Retail Manager to meet its aforesaid commitment and which outreach efforts shall, without limitation, include those outreach efforts described in Exhibit L, within sixty (60) days from the Commencement Date. Retail Manager shall incorporate in its said ACDBE Program such revisions and changes which American and the Port Authority initially or from time to time may reasonably require. Throughout the Term, Retail Manager shall document its efforts to ensure compliance with the ACDBE Program and the provision of Sections 11.5.1 and 11.5.2 above, shall keep American and the Port Authority fully advised of is progress in implementing such outreach efforts and shall supply to American and the Port Authority such information, data and documentation with respect thereto as either American or the Port Authority may from time to time and at any time request, including but not limited to annual reports.
11.5.4 |
[**] |
12. |
BOOKS, RECORDS AND REPORTING. |
12.1General Requirements. Retail Manager shall maintain, or cause to be maintained (including, without limitation, requiring each Subtenant to maintain), for a period of five (5) years from the date of each sale hereunder, or, in the event of a claim by American or the Port Authority, until such claim for payments hereunder shall have been fully resolved, fixed and paid, separate and accurate daily records of Gross Receipts as herein defined, and in accordance with GAAP, showing in detail all business done or transacted in, on, about or from or pertaining to the Concession Area, as well as activity concerning the funding and use of the Common Area. Maintenance Fee and Joint Marketing Fund. Retail Manager shall also maintain, or cause to be maintained by Subtenants, separate and accurate records of construction on Fixed Improvements and Refurbishments in the Concession Area in accordance with GAAP. Retail Manager shall enter, or cause Subtenants to enter, all receipts arising from such business in regular books of account, and all entries in any such records or books shall be made at or about the time the transactions respectively occur. In addition, Retail Manager shall prepare monthly and annual reports of Gross Receipts derived from operations under this Agreement and occupancy costs (in all cases on a Subtenant by Subtenant basis), using a form and method as directed by American and the Port Authority, which reports shall be simultaneously delivered to American and the Port Authority.
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Such forms and methods shall be employed by Retail Manager throughout the Term.
12.1.1Upon American’s or the Port Authority’s written request, Retail Manager shall make available promptly to American and the Port Authority, any and all books, records and accounts pertaining to its business activities under this Agreement (which would not include records relating to the compensation and benefits of Retail Manager’s personnel involved in the Concession Program, and related general corporate overhead of Retail Manager and “on-site” operating expenses not passed through to or collected from Subtenants) and conduct an audit of such books, records and accounts. Should such books and records not be made available in either the Port of New York District or the greater New York City metropolitan area within no more than fifteen (15) days of being requested, Retail Manager shall reimburse American and/or the Port Authority for reasonable travel (save when American’s representatives can travel on American’s flights), lodging and meal expenses to examine same at Retail Manager’s office. The intent and purpose of the provisions of this Section 12.1 is that Retail Manager shall keep and maintain records, including consolidated Subtenants reports, that will enable American, or the Port Authority, to clearly and accurately ascertain, determine and audit, if so desired by American or the Port Authority, the amount of Gross Receipts attributable to the Concession Area by concession type, and by the allocation of Gross Receipts among the various products or services sold if relevant to the determination of Subtenant Rental. The form and method of Retail Manager’s reporting of Gross Receipts shall be adequate to provide a control and test check of all revenues derived under this Agreement.
12.1.2Should any examination, inspection, and audit of Retail Manager’s books and records by American or the Port Authority disclose any underpayment by Retail Manager in excess of 2% of the total annual Rental due, Retail Manager shall pay American the amount of such underpayment plus Late Interest within no more than thirty (30) days after such disclosure with respect to American’s Allocated Share. Any late payment interest payable on the Port Authority’s Allocated Share would be determined in accordance with the Operator Permit. If the discrepancy is a result of Retail Manager’s gross negligence, intentional acts, or fraud, Retail Manager shall also (i) reimburse American for all reasonable and actual costs incurred in the conduct of such examination, inspection, and audit (including without limitation, reasonable attorneys’ fees and litigation expenses), and (ii) pay an additional charge equal to 15% of the underpayment.
12.1.3Retail Manager shall provide or cause to be provided the reports listed below to the Port Authority and American. Without prejudice to the remedy provided in Section 12.1.5 and Retail Manager’s general obligations under this Agreement to monitor and audit the reporting of Subtenants and enforce the Subleases, American acknowledges that in obtaining or providing the reports described below Retail Manager is relying on accurate and complete reporting from Subtenants, and therefore makes no representation or warranty that end-product reports will be fully accurate and complete.
12.1.3.1As soon as practicable after the end of each calendar month, but in no event later than the tenth (10th) Business Day of the following calendar month, American shall notify Retail Manager as to the number of Enplaned Passengers at the Terminal during such month.
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As soon as practicable after the end of each calendar month, but in no event later than the twentieth (20th) day of the following calendar month, Retail Manager shall deliver to American a separate statement (the “Monthly Rental Statement”) for the Concession Area setting forth (i) a written report detailing the Gross Receipts achieved (for the completed month) on a Subtenant-by-Subtenant and concession category-by-concession category basis for the Terminal, that shall include (A) the Gross Receipts for each Subtenant, (B) Gross Receipts per location, (C) Gross Receipts per enplaned passenger, (D) Gross Receipts per square foot of concession space, (E) Gross Receipts per concession category, (F) total Gross Receipts, (G) effective Subtenant Rental on a daily and monthly basis for each Subtenant and any other charges, paid or payable to Retail Manager by each Subtenant, delineating separately each such category of charge and amount of arrearage (including breakdown of type of arrearage) for each Subtenant, for the Terminal, (ii) Subtenant Rental amounts payable by each Subtenant to Retail Manager, together which how much of such amounts is due from Retail Manager to American and Port Authority, (iii) for each Subtenant (by unit number), the following information: minimum Subtenant Rental, percentage rent, Common Area Maintenance Fee, storage fees and the Joint Marketing Fund Fee, in each case, for the current reporting month, prior months, and year-to-date subtotals, (iv) ACDBE participation, (v) a MBE/WBE monthly utilization report, (vi) uncollected Subtenant Rental payable by Subtenants that is past due for over thirty (30) days, (vii) arrearages broken down by Subtenant and for the Terminal as a whole, both for the applicable month and cumulatively up to that point in the year, (viii) such other financial and management reports as are usual and customary in sophisticated airport concession management programs, as may be required by American or the Port Authority from time to time, and (ix) any other reports and analyses as may be requested by American or the Port Authority (provided that such additional reports and analyses do not require Retail Manager to incur material additional costs). Retail Manager’s development team shall provide monthly updates to American regarding capital investment status during the Development Period. Each Monthly Rental Statement shall be accompanied by a statement, certified by an authorized officer or equivalent representative of each Subtenant (commencing on the month subsequent to the commencement date under its Sublease), of Gross Receipts arising out of operations of the Subtenant for the preceding month. Upon request from American, Retail Manager shall provide supporting documentation for the Gross Receipts arising out of the operations of a given Subtenant, as reasonably required by American or the Port Authority. If the Monthly Rental Statement shows that the Subtenant Rental collected by Retail Manager and paid to the Port Authority and American for such calendar month is less than the Rental actually payable to American and the Port Authority, then Retail Manager shall pay to American and the Port Authority, together with the delivery of such Monthly Rental Statement, the amount of such deficiency, and if the Subtenant Rental collected by Retail Manager and paid to the Port Authority and American for such calendar month is greater than the Rental actually payable to American and the Port Authority, then the overpayment shall be credited to the next month’s Rental payment.
12.1.3.2On or before January 25 of each year Retail Manager shall provide to American and the Port Authority a preliminary statement of Gross Receipts arising out of the operation of the Concession Program for the prior calendar year. The preliminary statement of Gross Receipts shall set forth, at a minimum, a month by month listing of (i) all the Gross Receipts of each Subtenant and any other concessionaires managed by Retail Manager, including a breakdown of food and beverage versus non-food and beverage concessions, (ii) the Port Authority’s Allocated Share and American’s Allocated Share of Subtenant Rental based on those Gross Receipts, and (iii) the Management Fee.
12.1.3.3On or before April 15 of each year Retail Manager shall cause an annual statement of Gross Receipts arising out of the operations of each Subtenant for the preceding calendar year of its respective Sublease term to be prepared, and certified at the Subtenant’s sole expense, by a certified public accountant. As soon as practicable after the end of each calendar year, but in no event later than May 15, Retail Manager shall provide a separate statement for the Concession Area showing, in reasonable detail, consolidated Gross Receipts for the preceding calendar year and the amount of Rental paid to the Port Authority and American (the “Annual Rental Statement”).
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12.1.3.4No later than the first Business Day of each calendar quarter, Retail Manager shall deliver a detailed report to American and the Port Authority that details, with respect to the Concession Program, new job creation, total numbers of affected workers, workers who have been offered positions and estimated additional hires needed as new Subtenants come online.
12.1.3.5During the Development Period, on Tuesday of every other week, and following the Development Period, on the tenth (10th) day of each calendar month, the following information on a Subtenant level: (a) target employee count at full operation, (b) actual current quantity of employees and variance from target, and (c) outstanding job offers for employees who have not yet commenced work.
12.1.4Each Monthly Rental Statement and Annual Rental Statement shall be prepared on a cash accounting basis and certified by General Manager and either of the Airport Controller or Senior Accountant of Retail Manager as being true and correct in all material respects. Each Annual Rental Statement shall also be certified by a certified public accountant affiliated with an accounting firm selected by Retail Manager and approved by the Port Authority and American, with American’s approval not to be unreasonably withheld, conditioned, or delayed.
12.1.5If the certified Monthly Rental Statements or Annual Rental Statements provided under this Section 12.1 demonstrate a shortfall of more than 2% in comparison with the actual Rental paid under Article 4, Retail Manager shall pay (and may cause the relevant Subtenants(s) to pay to it under its/their Sublease) the amount of such shortfall with the next Rental payment due in accordance with Section 4.4, plus Late Interest calculated from the date full payment should have been received.
12.1.6If Retail Manager is delinquent for fifteen (15) days or more in furnishing American with any Monthly Rental Statement or delinquent for forty-five (45) days or more in furnishing American with any Annual Rental Statement required to be delivered under this Agreement, Retail Manager shall pay (and may cause the relevant Subtenant(s) to pay it under its/their Sublease) American $100 per day thereafter per delinquency.
12.1.7Retail Manager shall reasonably promptly furnish to American and the Port Authority such other financial or statistical reports as American or the Port Authority may reasonably require from time to time to verify compliance by Retail Manager with the terms of this Agreement.
12.2Concession Area Transactions. Without limiting the generality of the foregoing, Retail Manager shall cause the Subtenants to install in their respective Subtenant Premises non-resettable cash register or cash registers and other point of sale terminals (each, a “Point-of-Sale Terminal”) for recording orders taken, or services rendered, as may be appropriate to the Subtenant’s business and necessary or desirable to keep accurate records of Gross Receipts and shall cause the Subtenants to register therein every transaction made in, on, about or from their respective Subtenant Premises, including every type of Gross Receipts herein defined. Each such Point-of-Sale Terminal shall provide an historical record of all transactions, which occur at the Subtenant Premises for accounting, terminal-wide merchandising and auditing purposes. If requested by American from time to time, a copy of transaction reports or similar information shall be submitted to American and the Port Authority together with the delivery of the Monthly Rental Statement for the applicable month. American and the Port Authority shall have the right to inspect any Point-of-Sale Terminal or audit any Subtenant at any time.
12.2.1In order to provide an accurate record of concessions transactions and to provide a high level of service to customers at the Concession Area, all Point-of-Sale Terminals or cash registers used therein shall have, as a minimum, the following features:
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12.2.1.1not less than sixty (60) segregated category addresses (if applicable for the types of products or services that maybe offered by the Subtenant);
12.2.1.2the input devices may either be a key, scanner or both;
12.2.1.3the patron fee display shall be of sufficient size and legibility to be readily observed by the patron during the processing of a transaction; and
12.2.1.4the register of each Point-of-Sale Terminal shall: (i) record transactions by sequential control number to the audit tape or computer files; (ii) be capable of printing a transaction history to tape or file by hour (time of day), day, month and year; (iii) print a customer receipt showing the amount due, amount tendered, and the amount due to the customer together with the time and date of the transaction; and (iv) the register or data collection device shall have a secure transaction audit tape or an ASCII transaction file on an IBM compatible data disk.
12.2.2If any Subtenant (at the time such Subtenant executes its Sublease) utilizes electric cash register terminals in other locations, it may submit the respective cash register terminal capabilities to American and the Port Authority for approval or waiver of any of the above capabilities. To be acceptable, however, the electric cash register terminal must have the capability of interfacing with or transmitting appropriate segments of the data it accumulates (on a read-only basis) in some acceptable form to a data base system or systems reasonably specified by American.
12.3Revenue Control. Upon the request of American, Retail Manager shall require Subtenants to make available to American weekly sales data for each Subtenant Premises, reflecting the amount of each sales transaction, the number of transactions, items sold per transaction, time and date of the transaction, and specifying the sales category applicable to each item sold.
12.4Business Statistics Report. Retail Manager shall furnish to American and the Port Authority, within thirty (30) days of the close of each calendar year during the Term, or promptly following American’s request therefor (which shall be made no more than once annually), the following report (the “Business Statistics Report”) containing trends for the operation of the Concession Area, other than direct revenue and cost figures as follows: (i) rolling twelve (12) month sales by Subtenant, by category; (ii) sales per Enplaned Passenger by Subtenant, by category, on a monthly, quarterly and rolling twelve (12) month basis; (iii) sales per square foot by Subtenant Premises and by category on a rolling twelve (12) month basis; (iv) a Subtenant occupancy report, listing Subtenant Rental as a percentage of Gross Receipts for each Subtenant; (v) associated graphs and trend charts; and (vi) where applicable, comparisons to historical data for the same time frames.
13. |
REPRESENTATIONS AND WARRANTIES. |
13.1American’s Disclaimer. No representations have been made by American or the Port Authority as to the Concession Area or the Terminal (including, without limitation, the economic viability of any concession location or the amount of passengers to be enplaned at the Terminal), and no promises to alter, remodel or improve the Concession Area or the Terminal have been made by American except as expressly set forth in this Agreement. Passenger counts, passenger flows and other customer traffic are in the most part products of airline schedules and gate utilization and governmental rules and regulations governing security and emergency situations may restrict access to the Terminal. Retail Manager and Subtenants may not rely on any implied representations or warranties (the existence of which are hereby disclaimed), or the accuracy of projections or prospective information provided in connection with the execution of this Agreement and the Subleases, and Retail Manager and Subtenants shall have conducted an independent investigation and evaluation of all information provided in connection with the execution of this Agreement.
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13.2Retail Manager’s Representations and Warranties. Retail Manager represents and warrants that:
13.2.1Retail Manager is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware and is duly qualified to do business in the State of New York. Retail Manager has the power and authority to execute, enter into and perform this Agreement, and by proper corporate action has been duly authorized to execute and deliver this Agreement and each of the other documents required to be delivered by Retail Manager in connection with the transactions contemplated by this Agreement, and to perform its obligations under this Agreement and such other documents in accordance with their respective terms;
13.2.2Retail Manager is duly authorized and has the power to own and operate its properties and assets and to conduct its business;
13.2.3This Agreement has been duly executed and delivered by a duly authorized officer of Retail Manager;
13.2.4This Agreement constitutes the legal, valid and binding obligation of Retail Manager enforceable against Retail Manager in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium and other laws affecting creditors rights and remedies generally; and
13.2.5There is no litigation now pending or, to the best of Retail Manager’s knowledge, threatened, challenging the corporate existence or powers of Retail Manager in any way affecting this Agreement, or in any way having a material adverse effect on the operations, assets or finances of Retail Manager.
13.3American’s Representations and Warranties. American represents and warrants that:
13.3.1American is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in the State of New York. American has the power and authority to execute, enter into and perform this Agreement, and by proper corporate action has been duly authorized to execute and deliver this Agreement and each of the other documents required to be delivered by American in connection with the transactions contemplated by this Agreement, and to perform its obligations under this Agreement and such other documents in accordance with their respective terms;
13.3.2American is duly authorized and has the power to own and operate its properties and assets and to conduct its business;
13.3.3This Agreement has been duly executed and delivered by a duly authorized officer of American;
13.3.4This Agreement constitutes the legal, valid and binding obligation of American enforceable against American in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium and other laws affecting creditors rights and remedies generally; and
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14.1.2.5[Intentionally Omitted].
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14.1.3American’s Default. If (a) American fails to perform any of its obligations hereunder or (b) American breaches its obligations under the Lease and (i) such breach results in the termination of the Lease and this Agreement and (ii) the Port Authority does not thereafter assume this Agreement, then in case of either the foregoing clause (a) or (b) occurring, within thirty (30) days after written notice from Retail Manager specifying in detail such failure or default (or if the failure or default cannot be corrected, through the exercise of reasonable diligence, within such thirty (30) day period, if American does not commence to correct same within such thirty (30) day period and thereafter diligently prosecute same to completion), Retail Manager’s sole and exclusive remedy shall be an action for actual and direct damages. Unless and until American fails to cure any breach or default after such notice, Retail Manager shall not have any remedy or cause of action by reason thereof. AS ESSENTIAL CONSIDERATION AND A MATERIAL INDUCEMENT FOR AMERICAN TO ENTER INTO THIS AGREEMENT, RETAIL MANAGER HEREBY WAIVES ANY RIGHTS TO ANY CLAIM FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE DAMAGES AT LAW OR EQUITY, WITHOUT PREJUDICE TO THE RIGHT TO RECEIVE REIMBURSEMENT OF ELIGIBLE COSTS FOR CERTAIN EARLY TERMINATIONS OF THIS AGREEMENT. All obligations of American hereunder will be construed as covenants and not conditions. The reference in this Section to American’s obligations shall not include any obligations of the Port Authority.
14.2Intentionally Omitted.
14.3Surrender of Premises. Retail Manager shall quit and deliver peaceably to American possession of the Concession Area, and release and/or not attempt to retain any interest in the Fixed Improvements and Refurbishments on the date of the cessation of the letting of the Concession Area, whether such cessation be by termination, expiration, or otherwise. The Concession Area shall be in broom-clean and sightly condition and in good repair, except for reasonable wear and tear arising from use of the Concession Area to the extent permitted elsewhere in this Agreement.
14.3.1Retail Manager and the Subtenants shall at their sole expense remove signs and trade fixtures (other than trade fixtures and other property which they are otherwise prohibited from removing under the Lease) from the Concession Area and shall surrender the Concession Area and appurtenances thereto in broom-clean and sightly condition and in good repair, except for reasonable wear and tear arising from use of the Concession Area to the extent permitted elsewhere in this Agreement. Retail Manager shall deliver to American all keys to all or any portion of the Premises in its possession and cause Subtenants to do the same.
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14.3.2Any personal property of Retail Manager and the Subtenants placed on or kept at the Concession Area as to which the letting has ceased shall be removed as soon as practical but in no event later than the expiration or termination of this Agreement or the respective Subleases; provided, that with respect to an expiration or termination of this Agreement occurring as a result of the Port Authority revoking the Operator Permit for cause on twenty-four (24) hours’ notice pursuant to Section 3.2(iii) of this Agreement, or an Early Termination due to a Suspension pursuant to Sections 3.2(vii) or (viii) of this Agreement, Retail Manager shall have thirty (30) days to remove such property after the effective date of such expiration or termination. If Retail Manager shall fail to so remove its personal property at the end of the Term (including also any Early Termination of this Agreement), or fail to cause Subtenants to do so, American may at its option, as agent for Retail Manager and the respective Subtenants and at the risk and expense of Retail Manager and the respective Subtenants, respectively, remove such property to a public warehouse, or may retain the same in its own possession, and, in either event, after the expiration of thirty (30) days may sell the same at public auction; the proceeds of any such sale shall be applied first to the expenses of removal, sale and storage, second to any sums owed by Retail Manager or the Subtenants to American or the Port Authority; any balance remaining shall be paid to Retail Manager or the Subtenants as appropriate.
14.3.3All of the requirements of this Article 14 affecting Subtenants shall be included in any and all Subleases.
14.4Attorney’s Fees. If either party institutes any action or proceeding against the other party to enforce the interpretation of or compliance with a provision of this Agreement, the prevailing party shall be entitled to receive from the non-prevailing party all reasonable attorneys’ fees and all court costs in connection with such proceeding.
15. |
LIABILITY; INSURANCE; DESTRUCTION; MISCELLANEOUS. |
15.1 |
Liability, Indemnity, Insurance and Bonds. |
15.1.1 |
Retail Manager’s Indemnification. |
15.1.1.1Retail Manager shall defend, indemnify and hold harmless American and its directors, officers, employees, agents, representatives and Affiliates (collectively, the “American Indemnitees”), from and against any and all claims, demands, actions, causes of action, suits, fines or judgments asserted, imposed or obtained by third Persons, and the costs (including reimbursement of American Indemnitees’ reasonable costs and expenses of any related legal proceedings or attorneys’ fees), expenses, losses, liabilities (including, without limitation, claims and demands for death or personal injuries, or for property damages) and damages of all kinds related to such third Person claims, arising out of the (a) construction of Fixed Improvements or Refurbishments, (b) regardless of whether it is related to a claim by a third Person, the improper use or occupancy of the Concession Area by Retail Manager or by Subtenants, (c) out of any other acts or omissions of, or any breaches or defaults under the terms or conditions of this Agreement by, Retail Manager, the Subtenants or their respective directors, officers and employees, representatives contractors and guests and invitees (which excludes, for the avoidance of doubt, passengers and any other members of the general public who enter the Terminal not solicited or requested specifically by Retail Manager or a Subtenant) in the Concession Area or other areas in the Terminal or elsewhere at the Airport (including, without limitation, claims and demands of any of the Subtenants or of the City of New York, from which the Port Authority derives its rights in the Airport), (the foregoing, collectively, the “Claims”) and (d) any Claims related to the Mobile Application or any other online portal or digital offering used in connection with the Concession Program.
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The foregoing indemnification shall not apply to the extent that a Claim is caused or contributed to by the negligence or willful misconduct of any American Indemnitee. As a condition to the foregoing indemnification with respect to claims and demands for indemnification made by American: (w) American shall give Retail Manager prompt written notice specifying with reasonable particularity any Claim which American reasonably believes may become the basis for indemnification pursuant to this Section 15.1.1, (x) American and its directors, officers, employees and representatives shall cooperate fully in the defense of such Claim, (y) to the extent permitted under the Lease, Retail Manager shall have the right to contest, defend or litigate, and to retain counsel of its choice in connection with any proceeding or litigation which would give rise to a claim for indemnification under this Section 15.1.1 and (z) to the extent permitted under the Lease, Retail Manager shall have the sole and exclusive right to settle any proceeding or litigation which could give rise to a claim for indemnification under this Section 15.1.1 (provided that (i) American’s prior written consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling or paying for any such Claim and (ii) such settlement would not result in any loss, cost, harm, expense, damage or liability to American or the Port Authority). A failure by an American Indemnitee to timely notify Retail Manager of any Claim shall not excuse Retail Manager’s obligations hereunder, unless and to the extent (A) Retail Manager did not otherwise learn of such action, threat or Claim and (B) the lack of such notice by any American Indemnitee results in the forfeiture by Retail Manager of substantial rights and defenses. Retail Manager acknowledges the obligation to also defend, indemnify and hold harmless the Port Authority and its commissioners, directors, officers, employees, agents and representatives from and against all Claims in accordance with the provisions of the Operator Permit.
15.1.1.2Retail Manager represents that it is the owner of or fully authorized to use or sell any and all intellectual property used or sold by it in its activities under or in any way connected with this Agreement. Without in any way limiting its obligations hereunder Retail Manager agrees to indemnify, defend and hold harmless the American Indemnitees and the Port Authority and its commissioners, directors, officers, employees, agents and representatives of and from any loss, liability, expense, suit or judgment in connection with any actual or alleged infringement of any patent, service mark, trademark, trade name or copyright, or arising from any alleged or actual unfair competition or other similar claim arising out of the activities of Retail Manager under or in any way connected with this Agreement. As to American, such indemnification, and all other indemnification contained in this Agreement, shall be subject to provisions (w) through (z) of Section 15.1.1.1. With respect to claims or demands against American Indemnitees for actual or alleged infringement of any patent, service mark, trademark, trade name or copyright, or for actual or alleged unfair competition or other similar theories arising out of the operations of Subtenants, Retail Manager shall pay or reimburse American all actual and reasonable attorney’s fees and costs of defense that American may incur in defending any such intellectual property or unfair competition claims or demands. Retail Manager is not required to pay, reimburse or indemnify American from any other loss or expense, including eventual fines or judgments not overturned on appeal, that American may incur by reason of such intellectual property or unfair competition claims. The foregoing does not limit the obligation of Retail Manager to include clauses in the Subleases under which Subtenants fully indemnify American Indemnitees and the Port Authority directly for such liability.
15.1.1.3Retail Manager agrees to include in all Subleases, and obligate Subtenants, per their respective Sublease, to include in all franchise agreements and construction contracts and other agreements involving Subtenants, a provision by which such Subtenant, franchiser, or contractor agrees to defend, indemnify and hold harmless, Retail Manager, American Indemnitees, the Port Authority and its commissioners, and all of the officers, directors, employees and agents of each of them, on at least the same basis and to the same extent as required of Retail Manager under this Section 15.1.1.
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15.1.1.4Further, Retail Manager shall notify American as soon as reasonably practicable of any incident(s) related to the Premises or services contemplated by this Agreement that could give rise to a claim against the Port Authority.
15.1.1.5Notwithstanding anything in this Agreement to the contrary, and in addition to the indemnification obligations otherwise set forth in this Agreement, Retail Manager shall defend, indemnify and hold harmless the American Indemnitees from and against any and all Claims, regardless of whether such Claim is related to a Claim by a third Person, (a) related to any acts or omissions of Retail Manager that are deemed to be acts or omissions of American under Section 4(a) (Special Endorsements) of the Operator Permit, including, without limitation, Retail Manager’s obligations of indemnification, repair and replacement, and (b) related to any failure of Retail Manager to cease to perform the operations at the Airport and vacate the Premises as of the Expiration Date or of the expiration, revocation or termination of the Operator Permit, subject to Section 14.3.2.
15.1.2Insurance. Retail Manager, in its own name as insured and for the benefit of American and the Port Authority as additional insureds (both of which shall be named in each policy as an additional insured, as its interest may appear), shall procure and maintain Commercial General Liability insurance and Commercial Automobile Liability (covering owned, hired and non-owned vehicles). Such Commercial General Liability insurance shall include, without limitation, premises operations, products-completed operations, explosion, collapse and underground property damages, personal injury and independent contractors, broad form property damage with a contractual liability endorsement covering the obligations assumed by Retail Manager, pursuant to Section 15.1.1 hereof, to the extent covered by general liability policies, which shall be in addition to all policies of insurance otherwise required by this Agreement, with such insurance not to contain any care, custody or control exclusions, which would conflict with or in any way impair coverage under the contractual liability endorsement. Such policy or policies of insurance shall also provide or contain an endorsement providing that the protections afforded Retail Manager thereunder with respect to any claims or actions against Retail Manager by a third Person shall pertain and apply with like effect with respect to any claim or action against Retail Manager or any Subtenant by American or the Port Authority, and that such protections shall also pertain and apply with respect to any claim or action against American or the Port Authority, including by Retail Manager or any Subtenant, but such endorsement shall not limit, vary or affect the protections afforded American and the Port Authority thereunder as an additional insured. Retail Manager shall procure and maintain Commercial General Liability insurance and Commercial Automobile Liability (covering owned, hired and non-owned vehicles) in not less than the following amounts during each the following time periods defined in this Agreement:
Minimum Coverage Required During the Development Period | |
Commercial General Liability on an occurrence form covering liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. |
A total combined limit of primary and excess coverage any one occurrence Bodily Injury, Personal Injury and Property Damage Liability in the minimum amount of $25,000,000, each occurrence; $25,000,000 personal and advertising injury; $25,000,000 general aggregate; $25,000,000 products-completed operations aggregate. |
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Minimum Coverage Required During the Development Period | |
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Commercial Automobile Liability on an occurrence form, including owned, hired and non-owned vehicles. |
A total combined limit of primary and excess coverage any one occurrence Bodily Injury, and Property Damage Liability in the minimum amount of combined single limit of $5,000,000 non-airside / $25,000,000 airside, each accident. |
Minimum Coverage Required During the Entire Term of this Agreement | |
Commercial General Liability on an occurrence form covering liability arising from premises, operations, Contractors, Subtenants, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract |
A total combined limit of primary and excess coverage any one occurrence Bodily Injury, Personal Injury and Property Damage Liability in the minimum amount of $5,000,000, each occurrence; $5,000,000 personal and advertising injury; $5,000,000 general aggregate; $5,000,000 products-completed operations aggregate. |
Commercial Automobile Liability on an occurrence form, including owned, hired and non-owned vehicles. |
A total combined limit of primary and excess coverage any one occurrence Bodily Injury and Property Damage Liability in the minimum amount of combined single limit of $5,000,000 non-airside/$25,000,000 airside, each accident. |
In addition to the above-mentioned Commercial General Liability insurance and Commercial Automobile Liability insurance, Retail Manager shall also procure and maintain during the Term of this Agreement, and shall cause Subtenants, if applicable, to procure and maintain during the term of their respective Subleases, Professional Liability insurance on a claims made basis covering against liability, including acts, errors, mistakes and omissions arising from professional services performed by the Retail Manager; provided that such coverage is available at commercially reasonable rates. Retail Manager shall maintain similar insurance under the same terms and conditions for at least six (6) years following the end of the Term of this Agreement. If such coverage is not available at commercially reasonable rates, then the Retail Manager will purchase coverage at such levels as are then available at commercially reasonable rates. Subject to the foregoing, Retail Manager shall procure and maintain Professional Liability insurance in not less than the following amounts during in the Term of this Agreement:
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Minimum Coverage Required During the Entire Term of this Agreement | |
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Professional Liability Insurance on a claims made basis covering against liability, including acts, errors, mistakes and omissions arising from professional services performed by the Retail Manager, a Subtenant, or a Contractor. All endorsements and exclusions shall be evidenced on the certificate of insurance and on policy declaration pages. |
$5,000,000 single limit per claim and $10,000,000 in the aggregate each annual period. |
Retail Manager shall, and shall cause Subtenants to, procure and maintain Builder’s Risk Insurance (including “All Risk” coverage) covering the construction of their respective Fixed Improvements required under Article 5 hereof or Refurbishments during the performance thereof, including without limitation material delivered to the site but not attached to the realty. Such insurance shall name Retail Manager, Subtenants and their respective contractors and subcontractors as additional insureds and name American, the Port Authority and the City of New York as additional loss payees thereunder and such policy shall provide that the loss shall be adjusted with and payable to Retail Manager or Subtenants, as the case may be. Such Proceeds must be used for the repair, restoration, and replacement or rebuilding of the Fixed Improvements and the Refurbishments, as necessary. Retail Manager shall procure Builder’s Risk Insurance in not less than the following amounts during the Development Period:
Minimum Coverage Required During the Development Period | |
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Builder’s Commercial Risk insurance, including “all risk” coverage for loss or damage by fire, collapse, lightning, windstorm, flood, earthquake, hail, certified and non-certified acts of terrorism, explosion, riot, vandalism, malicious mischief, civil commotion, Aircraft, vehicle impact, smoke, off premise service interruption, delay in completion, debris removal, valuable papers, pollutant cleanup and removal, professional fees, extra/expediting expenses, mold (to the extent ensuing from a separately covered cause of loss) and such other risks, including loss of income by Retail Manager resulting from a delay in start up as a result of a covered peril. |
Full replacement value of any loss by a covered peril. |
Retail Manager hereby warrants and represents that it maintains an All Risk Property insurance policy, providing coverage for fire, flood and earthquake (and without limitation a replacement cost endorsement).
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Retail Manager further hereby warrants and represents that it shall ensure that the aforementioned All Risk Property policy will cover any and on all inventory, furniture, fixtures, and equipment of Retail Manager at not less than the full replacement value of such items at the Terminal.
For the avoidance of doubt, American will have the responsibility of carrying an All Property Risk policy for all leasehold improvements at the Premises.
At all times during the Term of this Agreement, Retail Manager shall procure, maintain or cause to be maintained Crime/Dishonesty/Embezzlement/Theft Insurance in not less than the following amounts during each of the following time periods defined in this Agreement:
Minimum Coverage Required During the Development Period | |
Crime/Dishonesty/Embezzlement/Theft Insurance, including fidelity coverage for loss, theft, fraud, embezzlement, deposit, forgery, or similar acts on the part of Retail Manager or its employees. |
$5,000,000 any one occurrence and in the aggregate. |
Minimum Coverage Required During the Entire Term of this Agreement | |
Crime/Dishonesty/Embezzlement/Theft Insurance, including fidelity coverage for loss, theft, fraud, embezzlement, deposit, forgery, or similar acts on the part of Retail Manager or its employees. |
$5,000,000 any one occurrence and in the aggregate. |
Retail Manager in its own name shall procure and maintain Workers’ Compensation Insurance and Employer’s Liability Insurance. Throughout the Term of this Agreement, the Retail Manager shall procure, maintain, and pay premiums for, and cause its Contractors and Subtenants to procure, maintain, and pay premium for, workers’ compensation insurance and employer’s liability insurance in accordance with the requirements of New York law. Retail Manager shall procure Workers’ Compensation Insurance and Employer’s Liability Insurance in not less than the following amounts during each of the following time periods defined in this Agreement:
Minimum Coverage Required During the Development Period | |
Workers’ Compensation Statutory for State of Operations and Employer’s Liability |
Statutory Limits in effect at the time the Agreement is executed and “part B” Employer’s Liability insurance in an amount no less than $1,000,000 each Bodily Injury by Accident, $1,000,000 Policy Limit Bodily Injury by Disease, and $1,000,000 Each Employee Bodily Injury by Disease. |
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Minimum Coverage Required During the Entire Term of this Agreement | |
Workers’ Compensation Statutory for State of Operations and Employer’s Liability |
Statutory Limits in effect at the time the Agreement is executed and “part B” Employer’s Liability insurance in an amount no less than $1,000,000 each Bodily Injury by Accident, $1,000,000 Policy Limit Bodily Injury by Disease, and $1,000,000 Each Employee Bodily Injury by Disease. |
Retail Manager shall procure and maintain Contractor’s Pollution Liability Insurance during the Development Period with a six (6) year completed operations tail coverage, covering Retail Manager and all tier sub-contractors’ for pollution-related risks, including bodily injury, property damage, environmental damage caused by pollution conditions and remediation costs. Such coverage shall not contain a sunset provision, or any other provision, which would prohibit the reporting of a claim and the subsequent defense and indemnity that would normally be provided by the policy, shall “pay on behalf of” rather than “indemnify” the insured and shall include transportation coverage by or on the behalf of the Retail Manager for the loading and unloading and hauling of waste materials from the Premises to the final disposition location.
During the entire Term of this Agreement, Retail Manager shall procure and maintain Premises Pollution Insurance providing coverage for bodily injury liability, property damage and environmental damage caused by pollution conditions and remediation costs.
The pollution legal liability policy(ies) shall (x) state that claims, disputes and coverage shall be litigated in United States courts having jurisdiction, and not be limited to arbitration and (y) acknowledge the Retail Manager’s disclosure to the insurance carrier on the Premises activities or areas otherwise subject to the insurance policies of materials that may be considered hazardous or toxic wastes or substances under Applicable Law including, but not limited to, RCRA, CERCLA and/or TSCA. Retail Manager shall procure Pollution Legal Insurance in not less than the following amounts during each of the following time periods defined in this Agreement:
Minimum Coverage Required During the Development Period | |
Contractor’s Pollution Liability Insurance |
$5,000,000 combined single limit per incident, with the policy period corresponding to the duration of the Development Period. |
Minimum Coverage Required During the Entire Term of this Agreement | |
Premises Pollution Liability Insurance. |
$5,000,000 combined single limit per incident, 3-year policy limit. |
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In the event that liquor is to be provided or served by Retail Manager, a Subtenant, or another third-party occupant of the Premises, Retail Manager shall, and shall cause Subtenants to, procure and maintain Liquor Law Liability insurance for death, bodily injury and property damage, in not less than the following amounts during the following time period defined in this Agreement:
Minimum Coverage Required During the Entire Term of this Agreement | |
Liquor Law Liability (should liquor be provided or served by Retail Manager or any Subtenant). |
$10,000,000 per occurrence, $10,000,000 aggregate written on an occurrence form with combined limits for death, bodily injury, and property damage, to the extent the same applies to the operations of the Retail Manager. |
Retail Manager hereby warrants and represents that it maintains a Cyber Liability, Network Security and Data Breach Insurance. Retail Manager further warrants and represents that, to the best of its knowledge, the Cyber Liability, Network Security and Data Breach Insurance provides coverage for claims that may arise out of or relate to this Agreement, and operations of Retail Manager at the Terminal. Retail Manager hereby agrees to name as additional insureds American and the Port Authority to its Cyber Liability, Network Security and Data Breach Insurance policy, but solely with respect to claims against American and the Port Authority that may (1) arise from this Agreement, and/or (2) arise from Retail Manager’s activities at the Terminal, including but not limited to any claims against American and the Port Authority that arise from or relate to the activities of the Retail Manager.
For the avoidance of doubt, where the same type of coverage is required during the Development Period and for the remaining Term of this Agreement (for all types of insurance required in this Section 15.1.2), Retail Manager shall procure and maintain whichever per-occurrence limit of liability is higher for the duration of the Development Period. For example, Retail Manager is required to procure and maintain $10 million in per-occurrence Commercial General Liability coverage during the Development Period but is only required to maintain $5 million in per-occurrence Commercial General Liability coverage for the remaining Term of this Agreement; while the Development Period is in effect, Retail Manager must procure and maintain the higher $10 million per-occurrence limits of Commercial General Liability coverage.
As to the insurance required by the provisions of this Section 15.1.2, Retail Manager shall deliver a certificate or certificates evidencing their existence and inclusion of the required coverage and provisions to American and the Port Authority on or before the Commencement Date, including a list of endorsements on each of the policies. If the policy does not provide such notice, the Retail Manager shall provide 30 days’ advance written notice to American and the Port Authority. A renewal certificate of insurance shall be delivered to American and the Port Authority as soon as possible after the date of expiration of the policy renewed, but in no event more than ten (10) days after the date of expiration of each expiring policy obtained hereunder. The aforesaid insurance shall be written by a company or companies with a Long-Term Issuer Credit Rating of A minus (A-) or better by the A.M. Best Company or an equivalent rating service. If at any time any of the insurance policies shall be or become unsatisfactory to American or the Port Authority, in their reasonable judgment, as to form or substance, or if any of the carriers issuing such policies shall not maintain the minimum rating required above, Retail Manager shall promptly obtain a new and satisfactory policy in replacement.
The amounts of coverage required by this Section 15.1.2 shall be adjusted based upon the CPI-U each succeeding fifth (5th) anniversary of the Effective Date.
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Notwithstanding the foregoing, it is specifically understood and agreed that American shall have the right, on its own initiative or as requested by the Port Authority, to require Retail Manager to make reasonable additions, deletions, amendments, or modifications to the above minimum insurance requirements or may require such other and additional insurance, in such reasonable amounts, against such other insurable hazards, as American may deem reasonably necessary or the Port Authority may deem necessary. Notwithstanding the foregoing, American will not increase the above-required coverage limits in excess of 5% in any calendar year during the Term, unless such increase is required for reasons beyond American’s control.
15.1.3The commercial general liability insurance, commercial automobile liability insurance and Property insurance policies described above shall be endorsed to provide that such policies are primary insurance to any other insurance available to the additional insured, with respect to any claims arising out of this Agreement, and, with respect to the Commercial General Liability and Commercial Automobile Liability coverage, that such insurance applies separately to each insured against whom claim is made or suit is brought.
15.1.4The parties shall attempt to obtain, and if obtained to maintain so long as maintainable, provisions in their respective fire insurance policies relating to the Terminal and the Concession Area to the effect that any such policy shall not be invalidated should the insured waive in writing, prior to a loss, any or all right of recovery against any party for loss occurring to the insured property (“Invalidation Provision”). So long as such provisions are in their respective fire insurance policies, each party waives, only to the extent of the proceeds received under such policy, any right of recovery against the other party for any loss covered by the fire insurance policy containing such provision. In the event that at any time a fire insurance carrier shall not include such provisions in a policy then the party holding the policy shall have the other party named in said policy as a loss payee to the extent of its interest. Should any additional premium be imposed for the inclusion of any Invalidation Provision, the party for whose benefit the provision runs shall either (i) pay such additional premium within thirty (30) days after written demand, or (ii) waive such provision. Without limiting or modifying in any way the obligations, if any, to restore an insured loss as provided in this Article 15, in the event either party shall be named as an loss payee in accordance with the foregoing, the loss payee agrees to endorse promptly to the party obligated to restore pursuant to this Article 15, without recourse, any check, draft or order for the payment of money representing the proceeds of any such policies or representing any other payment growing out of or in connection with any such policy for payment of restoration of the Premises.
15.1.5Insurance provisions substantively at least as protective as those of Section 15.1.2 shall be included in the Subleases; provided, however, in the event that the Port Authority informs Retail Manager that certain of the coverages set forth in Section 15.1.2 shall not be required of any particular Subtenant, or informs Retail Manager that the minimum coverages required of any given Subtenant must be lower than those set forth in Section 15.1.2, then Retail Manager shall not be deemed in breach of this Agreement by requiring such Subtenant to carry only that insurance, with those levels of coverage, as are required by the Port Authority, despite such coverage not meeting the requirements set forth in Section 15.1.2.
15.1.6The insurance required of Retail Manager under this Section 15.1 may be furnished under any blanket policy carried by it, with any amendments or endorsements that may be necessary to conform to the above requirements, or under a new and separate policy.
15.2American’s Indemnification and Insurance.
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American shall defend, indemnify and hold harmless Retail Manager and its directors, officers, employees, agents, representatives and Affiliates (collectively, the “RM Indemnitees”), from and against any and all claims, demands, actions, causes of action, suits, fines or judgments asserted, imposed or obtained by third Persons, and the costs (including reimbursement of RM Indemnitees’ reasonable costs and expenses of any related legal proceedings or attorneys’ fees), expenses, losses, liabilities (including, without limitation, indemnification claims, and claims and demands for death or personal injuries, or for property damages) and damages of all kinds arising out of (a) the improper use or occupancy of the Premises by American, or (b) amounts payable to the Port Authority by Retail Manager under Section 8(b) (Special Endorsements) of the Operator Permit due to a termination of this Agreement resulting from a termination of the Lease as a result of any acts or omissions of American, its employees, agents, contractors or invitees, or (c) any occurrences taking place, and any acts or omissions of American, its employees, agents, contractors and invitees, during the period of any Suspension, or (d) (i) any other acts or omissions of, or (ii) any breaches or defaults under the terms or conditions of this Agreement by, American and its directors, officers and employees, representatives, contractors, guests, invitees and visitors (which excludes, for the avoidance of doubt, passengers and any other members of the general public who enter the Terminal not solicited or requested specifically by American) in the Terminal, or elsewhere at the Airport (including, without limitation, claims and demands of any of the Subtenants or of the City of New York, from which the Port Authority derives its rights in the Airport) (collectively, the “RM Claims”). The foregoing indemnification shall not apply to the extent that an RM Claim (a) is caused or contributed to by the negligence or willful misconduct of any RM Indemnitee, a Subtenant or Subtenant’s employees or contractors, or (b) is one for which Retail Manager has an indemnity obligation under Section 15.1.1. As a condition to the foregoing indemnification with respect to claims and demands for indemnification made by Retail Manager: (w) Retail Manager shall give American prompt written notice specifying with reasonable particularity any RM Claim which Retail Manager reasonably believes may become the basis for indemnification pursuant to this Section 15.2, (x) Retail Manager and its directors, officers, employees and representatives shall cooperate fully in the defense of such RM Claim and shall cause Subtenants to similarly cooperate, (y) to the extent permitted under the Lease, American shall have the right to contest, defend or litigate, and to retain counsel of its choice in connection with any proceeding or litigation which would give rise to a claim for indemnification under this Section 15.2 and (z) American shall have the sole and exclusive right to settle any proceeding or litigation which could give rise to a claim for indemnification (provided such settlement would not result in any loss, cost, harm, expense, damage or liability to Retail Manager). A failure by a RM Indemnitee to timely notify American of any RM Claim shall excuse American’s obligations hereunder only to the extent the defense of such RM Claims is prejudiced thereby.
15.2.1 |
American shall maintain the types of insurance required under the Lease. |
15.3 |
No Agency Created; No Third Party Beneficiaries. |
15.3.1This Agreement does not create in Retail Manager or the Subtenants any rights of agency or other representation for American or the Port Authority for any purpose whatsoever, nor does it create any authority to bind American or the Port Authority. Similarly, the payment of Rental and Additional Payment Obligations and all other fees, payments or other amounts required under this Agreement, neither creates nor is intended to create any partnership relationship, joint venture or other business combination, or a fiduciary duty or other special duty or relationship between or among Retail Manager, American or the Port Authority. Retail Manager must not hold itself out as having any relationship to American or the Port Authority that is inconsistent with this Section 15.3.1.
15.3.2This Agreement does not create in Subtenants or any other Person, other than the Port Authority, rights as a third party beneficiary of this Agreement. For the avoidance of misunderstanding, it is acknowledged that American has no duty to initiate any proceedings to enforce rights on behalf of the Port Authority as a third-party beneficiary under this Agreement.
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15.4 |
Damage or Destruction; Condemnation. |
15.4.1Partial Destruction of the Concession Area.
15.4.1.1American shall not be required to make reparation for any injury or damage by fire or other cause, or to make any restoration or replacement of any Fixed Improvements, Refurbishments, or any other real or movable property located or installed in the Concession Area by or on behalf of Retail Manager or the Subtenants, except as otherwise provided herein.
15.4.1.2 In the event the Fixed Improvements or Refurbishments are damaged by any casualty covered under an insurance policy required to be maintained pursuant to this Agreement, then Retail Manager shall for its own Fixed Improvements, and Retail Manager shall cause Subtenants for their respective Fixed Improvements, repair such damage or cause the affected Subtenants to repair it as soon as reasonably possible and this Agreement shall continue in full force and effect. In the event the Fixed Improvements or Refurbishments are damaged by any casualty not covered under any insurance policy required to be maintained by Retail Manager or Subtenants pursuant to this Agreement, then American may, at American’s option (i) repair such damage at American’s expense and continue this Agreement in full force and effect, or (ii) give written notice to Retail Manager within ninety (90) days after the date of occurrence of such damage of American’s intention to terminate this Agreement as to the affected portion of the Concession Area as of the date of the damage, provided, however, that if such damage is caused by an act or omission to act of Retail Manager or the Subtenants, their agents, servants, subcontractors or employees, then Retail Manager shall, or shall cause the involved Subtenants to, repair such damage, promptly at its/their sole cost and expense. Any repair or restoration of the Concession Area by American after the termination of this Agreement shall not be deemed to reinstate this Agreement or give Retail Manager any right to have this Agreement reinstated in whole or with respect to a terminated portion of the Concession Area. In the event American elects to terminate this Agreement under this Section, Retail Manager shall have the right, within thirty (30) days after receipt of the required notice from American, to notify American in writing of Retail Manager’s intention to repair such damage at Retail Manager’s expense and without reimbursement from American, in which event this Agreement shall continue in full force and effect and Retail Manager shall proceed to make such repairs as soon as reasonably possible. If Retail Manager does not give such notice within the above thirty (30) day period, this Agreement shall be terminated as of the date specified by American in its notice to Retail Manager. During the period of restoration, there shall be an abatement of all Rental from the damaged area in which Subtenants cannot operate.
15.4.2Total Destruction of the Concession Area. If the Concession Area is totally destroyed during the Term by any cause whether or not covered by the insurance required herein (including without limitation any destruction required by any authorized public authority), and the Concession Area cannot be repaired or replaced within sixty (60) days of such total destruction, (a) this Agreement shall terminate as of the date of such total destruction at the option of either party with a total abatement of Rental obligations as of such date, but without affecting any obligations which may have accrued or other rights or remedies of either party which may have arisen through such termination, including insurance claims based on the destruction and (b) American and Retail Manager shall, promptly following such destruction (but in no event more than ten (10) days thereafter), negotiate in good faith to reach a mutually satisfactory agreement on an equitable reduction of the Management Fee for the period during which such destruction is in existence.
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Should no agreement be reached on such equitable reduction within fifteen (15) days, then American may (in its good faith, reasonable discretion and based upon any evidence delivered by the Retail Manager with respect to work hours it is expending or reasonably expects to expend during the period the Concession Area is destroyed) reduce the Management Fees. In the event neither party terminates this Agreement, the payment of all Rental, including the Minimum Guaranteed Rental Shortfall, shall be abated until reconstruction is complete and operations by Subtenants can recommence.
15.4.3Damage or Destruction of Terminal. If 50% or more of the Terminal shall be damaged or destroyed by an insured risk, or if 25% or more of the Terminal shall be damaged or destroyed by an uninsured risk, notwithstanding that the use and occupancy of the Concession Area is not materially affected thereby, and if as a result of such damage or destruction the Enplaned Passengers at the Terminal are decreased by fifty percent (50%) or more for a period of sixty (60) days or more (as compared to the same sixty-day period in the prior calendar year), either American or Retail Manager may terminate this Agreement by notice given to the other within ninety (90) days from the date of occurrence of such damage or destruction, in which event the Term shall expire on the mutually agreed upon date (or, in the absence of a mutually agreed upon date, on the date reasonably specified by American, which shall be within one hundred eighty (180) days from the date of such damage or destruction) and Retail Manager shall upon such termination surrender the Concession Area to American. American shall not be required, pursuant to this Section 15.4.3 or otherwise, to repair any damage or destruction to the Terminal; provided, however, that Retail Manager shall not be obligated to repair any damage or destruction to its Fixed Improvements or Refurbishments, or to cause the Subtenants to repair Fixed Improvements or Refurbishments pursuant to Section 15.4.1 or 15.4.4 to the extent and for so long as any damage or destruction to the Terminal precludes such repairs to the Concession Area, Fixed Improvements or Refurbishments. In the event of such termination, no Minimum Guaranteed Rental Shortfall shall be due for the period commencing with the first day of such sixty (60) day period until the effective date of such termination.
15.4.4Damage Near End of the Term. If, during the last year of the Term, more than 25% of the Concession Area are partially destroyed or damaged, either party may at its option terminate this Agreement as of the date of occurrence of such destruction or damage by giving written notice to the other of its election to do so within twenty-five (25) days after the date of occurrence of such destruction or damage; provided, however, if American elects to terminate this Agreement pursuant hereto, Retail Manager shall have the right within thirty (30) days after receipt of the required notice to notify American in writing of Retail Manager’s intention to repair such destruction or damage at Retail Manager’s expense and without reimbursement from American, in which event this Agreement shall continue in full force and effect and Retail Manager shall proceed to make such repairs as soon as reasonably possible.
15.4.5Abatement of Rent; Retail Manager’s Remedies. If 25% or more of the Concession Area is destroyed or damaged, and such destruction or damage materially and adversely impairs or interferes with Retail Manager’s or Subtenants’ use and occupancy of at least 25% of the Concession Area and such area will be repaired pursuant to this Agreement, then in addition to any other remedies which may apply under this Agreement, American and Retail Manager shall negotiate in good faith to reach a mutually satisfactory agreement on an equitable abatement, for the period during which such damage and repair continues, of the amounts which may be due and owing as Rental, which abatement shall be based on any projected resulting reduction in Gross Receipts. Except for abatement of rent (if any), Retail Manager shall have no claim against American for any damage suffered by reason of any such damage, destruction, repair or restoration unless said damage is caused by the negligence or willful misconduct of American, nor shall Retail Manager have any claim against the Port Authority for any such damage regardless of its cause.
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15.5 |
Condemnation. |
(a)If more than 30% of the floor area of the Concession Area should be taken or condemned for any public or quasi-public use under any governmental law, ordinance or regulation or by right of eminent domain or by private purchase in lieu thereof, this Agreement shall terminate as of the date of such taking or condemnation and Rental and any Additional Payment Obligations shall be abated during the unexpired portion of this Agreement, effective on the date physical possession is commenced by the taking or condemning authority.
(b)If 30% or less of the floor area of the Concession Area should be taken or condemned as aforesaid, this Agreement shall not terminate; rather, the amounts which may be due and owing as Rental during the unexpired portion of the Term (or for such shorter period during which such taking or condemnation shall continue) shall be reduced proportionally based on the projected reduction, if any, in Gross Receipts, effective on the date physical possession is commenced by the taking or condemning authority, such reduction to end on the date (if such date falls during the Term) that the Concession Area is returned to Retail Manager and the Subtenants in a condition which reasonably allows for the commencement of business; provided, however, that in all events any reduction under this Section in the Port Authority’s Allocated Share of Rental shall require the prior written approval of the Port Authority. If the taking or condemning authority does not specify the actual portions of floor area of the Concession Area to be taken or condemned as aforesaid, then American and Retail Manager shall endeavor to agree on such actual portions (and, if they are unable to so agree, American’s reasonable decision with respect thereto shall be conclusive and binding).
(c)All compensation awarded for any taking or condemnation (or, in either case, the proceeds of private sale in lieu thereof) of the Concession Area shall be the property of American and Retail Manager hereby assigns its interest in any such award to American; provided, however, that American shall have no interest in any award made to Retail Manager or the Subtenants for Retail Manager’s or the Subtenants’ moving and relocation expenses or for the loss of Retail Manager’s or the Subtenants’ trade fixtures, operating equipment, merchandise, supplies inventory or other tangible personal property if a separate award for such items is made to Retail Manager or the Subtenants, as long as such separate award does not reduce the amount of the award that would otherwise be awarded to American.
15.6Permits, Licenses and Approval; Rules and Regulations. Retail Manager shall, at its sole expense, obtain and (if required) conspicuously display any and all permits, licenses or approvals (including, without limitation, the Operator Permit) required for the operation of its business by any governmental or administrative authority having jurisdiction over such matters. Retail Manager shall observe and obey the existing reasonable Rules and Regulations of the Port Authority or of American in effect as of the execution of this Agreement and all future reasonable Rules and Regulations promulgated by the Port Authority or American which affect the Concession Area.
15.7Successors. This Agreement is binding upon the permitted heirs, executors, administrators, assigns and successors in interest of the parties.
15.8Notices. All notices issued pursuant to this Agreement must be in writing and given by (i) Certified Mail, Return Receipt Requested, (ii) nationally recognized courier service providing proof of delivery, or by facsimile transmission (with answer back confirmation and confirmation by method (i)
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or (ii)) to the party at its address set forth below or to such other address as such party may designate by properly given notice, or (iii) sending the same by electronic mail, followed by delivery of a hard copy of same in accordance with the provisions of clause (i) or (ii) above.
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Notices dispatched by certified mail shall be effective three (3) Business Days after being deposited in the U.S. mail, properly addressed, with appropriate postage prepaid. Notices dispatched by nationally recognized overnight courier service shall be effective one (1) Business Day after the day sent. Notices sent by e-mail in accordance with the above shall be effective on the day sent, if such day is a Business Day and delivered by 5 p.m. Fort Worth, Texas time, and otherwise on the next Business Day. The foregoing formal notice requirements will not relieve a party of the obligation to act reasonably promptly as necessary on notices actually delivered and received by telephone or other means
15.9Force Majeure.
15.9.1Neither American nor Retail Manager shall be deemed to be in breach of its non-monetary obligations to the other party under this Agreement to the extent it is prevented from or delayed in performing by reason of Force Majeure, except as specified in Sections 5.2.2 and 14.1.1(r) or as may be specifically provided elsewhere in this Agreement. If Retail Manager or American is delayed or prevented from performing any of their respective non-monetary obligations under this Agreement, and such delay is by direct reason of Force Majeure, then performance of such obligation shall be excused for the period of the delay or prevention, and the period of such delay or prevention shall be deemed added to the time period herein provided for the performance of any such obligation by the party so delayed or prevented. Notwithstanding anything else in this Agreement, however, (i) the parties shall use all commercially reasonable efforts to perform their obligations under this Agreement notwithstanding any Force Majeure event, and (ii) an event of Force Majeure will excuse a party’s performance only if the party affected by Force Majeure provide timely written notice of Force Majeure to the other party within thirty (30) calendar days of the onset of the Force Majeure event, describing the Force Majeure event, the obligations and performance affected by the Force Majeure event, and the expected duration and effects of the Force Majeure event. Except as is specifically provided elsewhere in this Agreement, no abatement, diminution or reduction of the Rentals or other fees or charges payable by Retail Manager, shall be claimed or allowed to Retail Manager for any inconvenience, interruption, or loss of business in the Concession Area or other loss caused, directly or indirectly, by any present or future laws, rules, requirements, orders, directions, ordinances or regulations of a governing body of the United States of America, or of the state, county or city governments, or of any other municipal, governmental, or lawful authority whatsoever (including the Port Authority), or by priorities, rationing or curtailment of labor or materials, or by war or any matter or thing resulting therefrom or by any other cause or causes beyond the control of American, nor shall this Agreement be affected by any such causes, except as otherwise herein specifically provided.
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15.10Governing Law; Jurisdiction; Waiver of Right to Trial by Jury. Except as hereinafter provided, this Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws principles. If any provision of this Agreement of the application therefor to any person or circumstances shall, to any extent, be invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties, to the extent possible. In any such event, all other provisions of this Agreement shall be deemed valid and enforceable.
EACH PARTY HERETO HEREBY (A) IRREVOCABLY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY FEDERAL, STATE, COUNTY OR MUNICIPAL COURT SITTING IN THE STATE OF NEW YORK IN RESPECT TO ANY ACTION OR PROCEEDING BROUGHT THEREIN CONCERNING ANY MATTERS ARISING, DIRECTLY OR INDIRECTLY, OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT; (B) IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY SUMMONS AND COMPLAINT AND CONSENTS TO THE SERVICE UPON IT OF PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF SUCH PROCESS TO SUCH PARTY AT THE NOTICE ADDRESSES SET FORTH IN SECTION 15.8 AND HEREBY IRREVOCABLY DESIGNATES SUCH PARTY TO ACCEPT SERVICE OF ANY PROCESS ON SUCH PARTY’S BEHALF AND HEREBY AGREES THAT SUCH SERVICE SHALL BE DEEMED SUFFICIENT; (C) IRREVOCABLY WAIVES ALL OBJECTIONS AS TO VENUE AND ANY AND ALL RIGHTS IT MAY HAVE TO SEEK A CHANGE OF VENUE WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING; (D) AGREES THAT THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN IN ANY SUCH ACTION OR PROCEEDING AND WAIVES ANY DEFENSE TO ANY ACTION OR PROCEEDING GRANTED BY THE LAWS OF ANY OTHER COUNTRY OR JURISDICTION UNLESS SUCH DEFENSE IS ALSO ALLOWED BY THE LAWS OF THE STATE OF NEW YORK; AND (E) AGREES THAT ANY FINAL JUDGMENT RENDERED AGAINST IT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. EACH PARTY HERETO FURTHER AGREES THAT ANY ACTION OR PROCEEDING BY IT IN RESPECT TO ANY MATTERS ARISING, DIRECTLY OR INDIRECTLY, OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN THE STATE OF NEW YORK, COUNTY OF NEW YORK.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
15.11Self-Help. If, at any time during the Term, the operations in and management of the Concession Area for which Retail Manager is responsible under this Agreement (either directly or indirectly through Subleases, subcontracts or otherwise) give rise to conditions in the Terminal that, in the reasonable judgment of American, would significantly adversely impact American’s leasehold interest in the Terminal, including, without limitation, by causing a default of the Lease or harming the Base Building or other construction and property under American’s responsibility, the integrity and efficiency of airline operation at the Terminal, or the safety and security of American’s employees, passengers or other public in the Terminal, then, in lieu of declaring an Event of Default and/or terminating this Agreement as provided elsewhere in this Agreement, American may elect to notify Retail Manager of such condition.
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Retail Manager will then have five (5) calendar days to describe and provide a plan to American to remedy such condition and to begin to implement such plan. If American determines in its reasonable discretion that such plan is inadequate or would not remedy the condition identified as promptly as necessary, or American reasonably infers from Retail Manager’s recent conduct that it does not intend to remedy the condition, or that the condition identified by its nature requires more urgent attention, then American shall have the right, but not the obligation, and without any liability for doing so, to enter on the Concession Area with prior notice, or hire contractors to enter on the Concession Area, in order to directly remedy the condition. Retail Manager agrees for this purpose that American will be subrogated to any contractual rights or remedies of Retail Manager the exercise or enforcement of which American reasonably determines is necessary to remedy the condition without need for further action or formalities. Upon request by American, Retail Manager shall promptly reimburse American for its reasonable and actual costs in exercising this remedy along with an additional charge in an amount equal to 15% of the cost thereof. For such time as American exercises the remedy of this Section, Retail Manager will not be displaced from its offices in the Concession Area nor otherwise deprived of its rights or relieved of its obligations under this Agreement. This remedy is without prejudice to the rights of American to seek specific performance or exercise specific self-help remedies for Retail Manager’s failure to perform established elsewhere in this Agreement.
15.12Amendments, Modifications, Etc. No alterations, amendments, changes or modifications to this Agreement shall be valid unless executed by an instrument in writing by the parties. All such alterations, amendments, changes or modifications shall be void ab initio unless and until the Port Authority has specifically consented in writing to the same.
15.13Holding Over by Retail Manager. If, at the termination or expiration of this Agreement, Retail Manager has not delivered possession of the Concession Area to American as required in Section 14.3, and, for any reason, Retail Manager retains possession of the Concession Area or any part thereof, then American may, at its option, serve written notice upon Retail Manager that such holding over constitutes either (i) the creation of a month-to-month tenancy, or (ii) the creation of a tenancy at sufferance, in either case upon the terms and conditions set forth in this Agreement; provided, however, that the monthly rental shall, in addition to all other sums which are to be paid by Retail Manager hereunder, whether or not as additional rent, be equal to double the highest monthly Rental (whether based on Minimum Guaranteed Rental Shortfall or Subtenant Rental) paid in the preceding twelve (12) month period (and prorated in the case of clause (ii) on the basis of a three hundred sixty-five (365) day year for each day Retail Manager remains in possession), plus Additional Payment Obligations accruing during the period of Retail Manager’s occupancy based on a termination for an Event of Default if such unlawful holding over exceeds ten (10) days after the natural expiration of the Term. Notwithstanding the foregoing, if the holding over by Retail Manager under this Section is solely due to the failure of one or more Subtenants to timely vacate their Subtenant Premises (e.g., for Subleases not assumed under Section 3.3), notwithstanding Retail Manager’s exercise of all rights and remedies available to it to cause them to vacate, then the amount payable by Retail Manager shall be double the amount of the Rental payable by the Subtenants under each Holdover Lease immediately prior to such holdover and Retail Manager may pass such payment through to Subtenant (provided that this will in no way relieve Retail Manager of its obligations hereunder) in order to be reimbursed by Subtenant for amounts Retail Manager pays pursuant to this sentence. The provisions of this Section 15.13 shall not constitute a waiver by American or the Port Authority of any right of re-entry as herein set forth; nor shall receipt of any hold-over rent or other amount under this Agreement or any other act in apparent affirmation of the tenancy operate as a waiver of the right to terminate this Agreement for a breach of any of the terms, covenants, or obligations to be performed by or on behalf of Retail Manager.
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No holding over by Retail Manager, whether with or without consent of American, shall operate to extend this Agreement except as otherwise expressly provided. The preceding provisions of this Section 15.13 shall not be construed as consent for Retail Manager to retain possession of the Concession Area in the absence of prior written consent thereto by American.
15.14 |
Approvals. |
15.14.1American and Retail Manager shall each use diligent, good faith efforts to gain all Port Authority consents and approvals which may be required to effectuate this Agreement, to permit the development of the Concession Area, and to effect concessions operations by the Subtenants.
15.14.2Each of American and Retail Manager shall designate in writing to each other one or more representatives who shall be authorized to act under this Agreement for and on behalf of such party. Any act, approval, consent or vote of any representative that is so designated shall be deemed to be the act, approval, consent or vote of American or Retail Manager, as applicable and American and Retail Manager shall not be required to inquire into the authority of such representative as to such act, approval, consent or vote on behalf of the party who has designated said representative. Any representative may be replaced by a successor representative by written notice to the other party and designation of a substitute for such representative.
15.14.3American hereby designates [**] (or such other person as designated from time to time by American) as its representative under this Agreement. If any approval or consent is required of American under this Agreement, Retail Manager shall contact such designated person in writing in order to obtain said approval or consent, as the case may be. American may appoint any other person to this position upon prior written notice to Retail Manager. Retail Manager hereby designates its Senior Vice President of Operations as its representative under this Agreement. If any approval or consent is required of Retail Manager under this Agreement, American shall contact such designated person in writing in order to obtain said approval or consent, as the case may be Retail Manager may appoint any other person to this position upon prior written notice to American.
15.15Labor Assurances. Retail Manager represents and covenants that, to the best of its knowledge and belief, the employment of labor by Retail Manager or any Subtenant in the operation of the Concession Area will not be in conflict with the interests of American or the Port Authority with respect to labor harmony or interference with the quiet enjoyment and operation of the Terminal or the Concession Area.
15.16No Assignment. Retail Manager covenants and agrees that it may not sell, convey, transfer, mortgage, pledge, encumber or assign this Agreement or delegate or subcontract its duties, in whole or in part, nor permit the transfer of its interests created hereby directly or indirectly, in whole or in part, by operation of law or otherwise, without the prior written consent of American and the Port Authority; provided that neither American’s nor the Port Authority’s approval is required for Retail Manager to subcontract the performance of non-core, collateral services associated with its obligations hereunder, such as cleaning, maintenance, repair or auditing functions, although such subcontracts will not affect Retail Manager’s primary obligation for the proper performance of such services. American’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, shall be required for Retail Manager to subcontract core services, including but not limited to customer-facing technology, technology that would reasonably be expected to have a material impact on the customer experience and technology with which customers would reasonably be expected to directly interact.
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15.17Intellectual Property; American’s Names and Marks. Retail Manager acknowledges that the Trademarks are and will remain at all times the exclusive property of American and its Affiliates. No interest in, license or other right to use the Trademarks is granted or may be deemed to granted to Retail Manager under this Agreement or otherwise. Retail Manager may not make any use of the Trademarks, or any colorable imitation or abbreviation thereof, including any reference by advertising or otherwise to the names “American Airlines”, “American Airlines, Inc.”, unless such use or reference has been specifically approved in writing by American in advance. During the Term of this Agreement, Retail Manager may, in connection with performing its obligations hereunder, use, acquire, develop, create, or engage third parties to create, various types of materials, including, but not limited to, an app, a website, a digital platform, other software, printed materials, such as advertising, posters and other marketing materials (the “Contractor Materials”, which includes the Dedicated Terminal 8 Materials, as hereinafter defined), that are, in each case, subject to Intellectual Property Rights, including Intellectual Property Rights that Retail Manager (x) may have acquired, developed or created prior to the Term or (y) acquires, develops or creates during the Term independently from performing its obligations under this Agreement ((x) and (y), together, “Background Intellectual Property”). As between American and Retail Manager, Retail Manager shall be the exclusive owner of all right, title and interest in and to the Contractor Materials and Background Intellectual Property). The Retail Manager grants to American a non-exclusive, royalty-free, non-transferable (except in connection with a transfer of the Agreement), non-sublicenseable license for the Term to use the Background Intellectual Property as necessary to operate the Terminal. All goodwill in connection with such use shall inure to Retail Manager. To the extent such Background Intellectual Property include trademarks, service marks, trade dress, trade names, logos and corporate names, the Retail Manager may require that American comply with its reasonable quality control obligations which, in all events, shall be no more burdensome than the quality control standards to which Retail Manager itself adheres. The parties anticipate that the majority of the Contractor Materials that Retail Manager will acquire, develop or create will be for Retail Manager’s use solely at or in connection with its operations at Terminal 8 (“Dedicated Terminal 8 Materials”).
15.18Compliance. Without limiting any of the obligations of Retail Manager set forth in this Agreement, Retail Manager shall at all times comply with the guidelines, obligations, duties and provisions set forth in the Retail Manager’s Proposal. In the event of any inconsistency between the Retail Manager’s Proposal and this Agreement, or between the Retail Manager’s Proposal and the Lease or between the Retail Manager’s Proposal and the Operator Permit, then in each and every such instance this Agreement, the Lease or the Operator Permit, as the case may be, shall supersede and control. Retail Manager shall cause each Subtenant to comply with this Agreement and its respective Sublease, and will use commercially reasonable efforts to not permit any Subtenant to take any action or fail to take any action which action or inaction would be inconsistent with Retail Manager’s obligations under this Agreement. In addition to and without limiting the foregoing, Retail Manager shall, at a minimum: (a) maintain a searchable electronic database of the Subleases, (b) engage in vigorous oversight of Subtenants, with regular audits on Street Prices, operating hours, visual merchandising, and maintenance of all required certificates and permits, (c) rigorously track all important milestones in the Subleases, such as expiration dates, rent adjustments, dates key reports are due and deadlines for term expirations, (d) when a Sublease deficiency is detected, or there is failure to comply with a verbal correction request, deliver a formal notification with bulleted audit failures to the Subtenant detailing a timeframe to correct such issues (typically within seventy-two (72) hours) and, if such issues are not corrected in the required timeframe, assess liquidated damages pursuant to the Sublease and charge a series of graduated fines on a daily basis for failure of the correction of deficiencies, (e) pursuant to the Port Authority’s requirements, contractually require Subtenants to competitively price products such that retail prices are comparable to prices for parity brands sold in the New York area, (f) conduct annual pricing surveys using both on-site managers and outside contractors to develop standards for key products, such as water, soda, and over-the-counter medicine based on a broad range of regional market locations, and clearly communicate these standards verbally and in writing to all Subtenants, with strict requirements not to exceed these prices, (g) cause its on-site team to regularly perform audits at each Subtenant Premises, notifying Subtenants of any discrepancies and requiring any pricing adjustments within seventy-two (72) hours, (h) cause all Subtenants to clearly display the price of each item and customer-facing signage in each location outlining the Port Authority’s pricing policy, and (i) no less than quarterly, cause an outside contractor to conduct mystery operating hours adherence reports that Retail Manager shall share with American.
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Such contractor, who is unknown to the tenants, shall perform a complete walkthrough on various days of the week and times of the day. Subtenants that do not comply with operating hours shall be issued a written notification by Retail Manager, and Retail Manager shall ensure their compliance through varying levels of enforcement.
15.19Realtors. Each party represents and warrants to the other party that no broker, agent or other Person brought about this transaction. Each party agrees to indemnify and hold the other party harmless from and against any broker, agent or other Person claiming a commission or other form of compensation by virtue of having dealt with the indemnifying party with regard to this transaction.
15.20Licenses and Permits. Retail Manager shall procure for itself, and shall cause the Subtenants to procure, at its and at their sole expense, any permits and licenses required for the transaction of business in the Concession Area and otherwise comply with all Applicable Laws. In addition, if the nature of Retail Manager’s or the Subtenants’ business makes it advisable for Retail Manager or the Subtenants to take any extra precautions (for example, in the case of business which is affected by so-called “dram shop” laws, their compliance with all “dram shop” educational programs and procedures), Retail Manager or the Subtenants (as applicable) shall take all such extra precautions. At American’s request, Retail Manager and the Subtenants shall promptly deliver to American copies of all such permits and licenses and other evidence as may be reasonably obtainable as to compliance with specific laws, ordinances, governmental regulations and extra precautions.
15.21Estoppel Certificates. Retail Manager agrees, from time to time, within fifteen (15) days after request by American, to deliver to American or American’s designee, a certificate of occupancy, financial statements and an estoppel certificate stating that, to the best of Retail Manager’s knowledge, after due inquiry, that (i) this Agreement is in full force and effect, (ii) the date to which Rentals and all other amounts due under this Agreement are paid, (iii) there is no default on the part of American or Retail Manager under this Agreement, and (iv) Retail Manager does not have any right of offset, claims or defenses to the performance of its obligations under this Agreement, and addressing such other factual matters pertaining to this Agreement as may be reasonably requested by American. The certificate must also detail specific exceptions to the foregoing statements, if any. Retail Manager’s failure to deliver an estoppel certificate as required above will constitute a material breach of this Agreement, subject to notice and Section 14.1.1(l), but with a cure period of twenty (20) days in addition to the ten (10) day period provided above.
15.22DISCLAIMER. NOTHING IN THIS AGREEMENT (EXCEPT AS EXPRESSLY SET FORTH HEREIN) SHALL OR SHALL BE CONSTRUED TO IMPOSE UPON AMERICAN OR THE PORT AUTHORITY ANY OBLIGATIONS TO CONSTRUCT OR MAINTAIN OR TO MAKE REPAIRS, REPLACEMENTS, ALTERATIONS OR ADDITIONS, OR SHALL CREATE ANY LIABILITY FOR ANY FAILURE SO TO DO. RETAIL MANAGER AND THE SUBTENANTS ARE AND SHALL BE IN EXCLUSIVE CONTROL AND POSSESSION OF THE CONCESSION AREA AND AMERICAN AND THE PORT AUTHORITY SHALL NOT BE LIABLE AS RESULT OF THE RESERVATION OF RIGHTS UNDER THIS AGREEMENT OR THE EXERCISE OF ANY RIGHT UNDER THIS AGREEMENT HAPPENING ON OR ABOUT THE CONCESSION AREA NOR FOR ANY INJURY OR DAMAGE TO THE CONCESSION AREA NOR TO ANY PROPERTY OF RETAIL MANAGER, THE SUBTENANTS OR OF ANY OTHER PERSON LOCATED IN OR THEREON UNLESS CAUSED BY THE RESPECTIVE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AMERICAN OR THE PORT AUTHORITY (IN WHICH CASE AMERICAN AND THE PORT AUTHORITY SHALL BE RESPONSIBLE ONLY FOR THE DAMAGE OR INJURY CAUSED BY ITS OWN RESPECTIVE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT).
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15.23Survival of Obligations. All obligations of either party hereunder not fully performed or discharged as of the expiration or earlier termination of the Term shall survive the expiration or earlier termination of the Term, including without limitation, all payment obligations with respect to Taxes and all obligations concerning the condition and repair of the Concession Area.
15.24Invalid or Unenforceable Provisions. If any clause or provision of this Agreement is illegal, invalid or unenforceable under present or future laws effective during the Term, then and in that event, it is the intention of the parties that the remainder of this Agreement shall not be affected, and that in lieu of each clause or provision of this Agreement that is illegal, invalid or unenforceable, there be added, as a part of this Agreement, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable while maintaining the essential distribution of the economic benefits risks of the parties.
15.25American’s Lien. In addition to any statutory lien for rent in American’s favor, American shall have (and Retail Manager grants and shall cause the Subtenants to grant to American) a continuing security interest, to secure payment of all Rental, Additional Payment Obligations and Subtenant Rental becoming due hereunder respectively from Retail Manager or the Subtenants, and for the performance of all other obligations hereunder, upon all goods, wares, equipment, fixtures, furniture, inventory, and other personal property of Retail Manager or the Subtenants now or hereafter situated at the Concession Area, and such property shall not be removed therefrom without the prior written consent of American until all arrearages in Rentals or Subtenant Rental as well as any and all other sums of money then due to American hereunder shall first have been paid and discharged and all other obligations of Retail Manager or the Subtenants have been fully performed and discharged. In the event any of the foregoing described property is removed from the Concession Area in violation of the covenant in the preceding sentence, the security interest shall continue in such property and all proceeds and products, regardless of location; provided, however, upon curing to American’s satisfaction any breaches or defaults under this Agreement and any other related agreements between American and such party, Retail Manager or any Subtenant may remove or replace from the Concession Area (subject to such continuing security interest if applicable) any furniture or equipment which does not constitute a fixture to the Concession Area or to the Fixed Improvements. Unless otherwise expressly provided in this Agreement, all rights and remedies provided under this Agreement are cumulative and not exclusive of all other rights and remedies provided under this Agreement. Upon the occurrence of an Event of Default hereunder, or upon Retail Manager’s or any Subtenant’s breach or default, or threatened breach or default, of its obligations hereunder (including, without limitation, any vacation or threatened vacation or any abandonment or threatened abandonment of the Concession Area), in addition to all other rights and remedies, American shall have all rights and remedies under the Uniform Commercial Code or applicable law, including without limitation, the right to sell the property described in this Section 15.25 at public or private sale upon five (5) days’ prior written notice by American. Retail Manager hereby agrees, and shall cause the Subtenants, to execute such other instruments, reasonably necessary or desirable under applicable law, to perfect the security interest hereby created. American and Retail Manager each agree, and Retail Manager shall cause the Subtenants to agree by means of an equivalent Sublease clause, that this Section 15.25 serves as a financing statement and that a photographic copy or other reproduction of this Agreement may be filed of record by American and have the same force and effect as the original. For purposes of clarity, American’s ability to exercise its rights under this Section 15.25 in the case of a party’s default or threatened breach or default, shall apply only to such party’s property and not to the property of other parties which may have also granted American a lien pursuant to this Section 15.25.
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15.26Prior Agreement. The parties acknowledge and agree that upon the effective date of this Agreement, that certain Amended and Restated Master Retail Development, Management and Leasing Agreement dated as of June 1, 2011 but effective as of September 2, 2004 (as amended) between American and URW Airports, LLC (f/k/a Westfield Airports, LLC) (the “Prior Agreement”) shall be terminated and shall no longer be in full force and effect, other than the obligations of the parties under the Prior Agreement (including indemnification obligations) that by the express terms of the Prior Agreement survive its termination or expiration.
15.27Entire Agreement. The parties acknowledge and agree that upon satisfaction of the conditions set forth in Section 2.4.3 this Agreement, and all attachments and exhibits referenced herein, constitute the entire agreement between the parties with respect to the subject matter hereof. Notwithstanding anything herein to the contrary, the parties hereby agree and acknowledge that Exhibits E-1, O, and T shall be agreed to and inserted as exhibits to this Agreement within ninety (90) days after the Effective Date and that accordingly, any references herein to those exhibits already being attached shall apply after the passage of such ninety (90) day period.
[Remainder of Page Intentionally Left Blank;
Signature Page(s) Follow(s).]
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IN WITNESS WHEREOF, American and Retail Manager have executed this Agreement as of the date first above written.
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AMERICAN AIRLINES, INC. |
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By: |
/s/ Amanda Zhang |
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Name: |
Amanda Zhang |
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Title: |
Vice President, Airport Affairs and Facilities |
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JFK T8 INNOVATION PARTNERS, LLC |
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By: |
/s/ Dany Nasr |
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Name: |
Dany Nasr |
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Title: |
Airport CEO |
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By: |
/s/ David Yamamoto |
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Name: |
David Yamamoto |
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Title: |
SVP |
Signature Page to
Retail Development, Management and Leasing Agreement
EXHIBIT A
PREMISES
[See Attached]
Exhibit A
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.24
STOCK PURCHASE AND SALE AGREEMENT AND OTHER COVENANTS
entered into by and among,
on one side, in the capacity of seller,
MOTIVA INFRAESTRUTURA DE MOBILIDADE S.A.
and, on the other side, in the capacity of purchaser,
AEROPUERTO DE CANCÚN, S.A. DE C.V.
and, in the capacity of intervening and consenting party,
COMPANHIA DE PARTICIPAÇÕES EM CONCESSÕES
São Paulo (SP), November 18, 2025
TABLE OF CONTENTS
1 |
Chapter 1. Definitions and Rules of Interpretation |
5 |
2 |
Chapter 2. Object |
7 |
3 |
Chapter 3. Purchase Price and Payment Conditions |
8 |
4 |
Chapter 4. Price Adjustment |
9 |
5 |
Chapter 5. Submissions to Governmental Authorities and Treatment of Other Shareholders |
13 |
6 |
Chapter 6. Conditions Precedent and Conduct of Business |
19 |
7 |
Chapter 7. Closing |
29 |
8 |
Chapter 8. Representations and Warranties by Purchaser |
31 |
9 |
Chapter 9. Representations and Warranties by Seller |
33 |
10 |
Chapter 10. Ancillary Obligations |
52 |
11 |
Chapter 11. Indemnification |
60 |
12 |
Chapter 12. Termination |
73 |
13 |
Chapter 13. Applicable Laws; Dispute Resolution; Arbitration |
74 |
14 |
Chapter 14. General Provisions |
77 |
2
LIST OF EXHIBITS
Reference |
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Description |
Exhibit A |
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Equity Interests in the Target Companies |
Exhibit B |
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Description of Concession Agreements |
Exhibit C |
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Existing Shareholders’ Agreements |
Exhibit D |
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Reference Net Debt |
Exhibit E |
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Reference Working Capital |
Exhibit F |
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Reference CAPEX |
Exhibit 1.1 |
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Defined terms |
Exhibit 1.2(viii)(b) |
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List of individuals with knowledge on behalf of Seller and Target Companies |
Exhibit 1.2(viii)(c) |
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List of individuals with knowledge on behalf of Purchaser |
Exhibit 3.1.1 |
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Allocation of Purchase Price among the Equity Interests |
Exhibit 4.2.2 |
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Illustrative examples of calculation of Working Capital, Net Debt and the Year-End Price Adjustment |
Exhibit 5.1 |
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Concession Approvals |
Exhibit 5.2 |
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List of jurisdictions where Antitrust Notices are presented |
Exhibit 5.3 |
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List of Tag Along Companies and Tagging Shareholders |
Exhibit 6.1(iv) |
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Financing agreements - [**] |
Exhibit 6.3(iv) |
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Third Parties’ Waivers |
Exhibit 6.3(vi) |
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Certain Waivers |
Exhibit 6.6(i) |
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List of exceptions to Section 6.6(i) |
Exhibit 6.6(iii) |
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List of exceptions to Section 6.6(iii) |
Exhibit 6.6(ix) |
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Retention Bonuses |
Exhibit 6.6(x) |
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List of Key-Employees |
Exhibit 6.6(xvi) |
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List of exceptions to Section 6.6(xvi) |
Exhibit 7.3(v) |
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Draft letter of resignation and reciprocal release |
Exhibit 10.4 |
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List of Seller’s Guarantees |
Exhibit 10.9 |
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Transitional Activities and CSC Systems |
Exhibit 10.9.5 |
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Terms of Transition Period; Adjustment to Transitional Purchase Price Adjustment |
Exhibit 10.9.6 |
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Payment schedule of the Transitional Purchase Price Adjustment |
Exhibit 11.2(viii) |
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Regulatory Special Matters |
* * * * *
3
STOCK PURCHASE AND SALE AGREEMENT AND OTHER COVENANTS
This Stock Purchase and Sale Agreement and Other Covenants (“Agreement”) is entered into by and among the parties identified below (each individually referred to as a “Party” and, collectively, as “Parties”):
In the capacity of seller (“Seller”):
MOTIVA INFRAESTRUTURA DE MOBILIDADE S.A., a corporation organized and existing under the Laws of Brazil, with headquarters in the City of São Paulo, State of São Paulo, at Rua Dra. Ruth Cardoso, No. 8501, 5th floor, Pinheiros, Zip Code No. 05425-070, enrolled with the Brazilian Federal Taxpayer Registry (“CNPJ/MF”) under No. 02.846.056/0001-97, herein represented in accordance with its bylaws.
And, in the capacity of purchaser (“Purchaser”):
AEROPUERTO DE CANCÚN, S.A. DE C.V., a company organized and existing under the Laws of Mexico, with headquarters in the city of Cancún, Quintana Roo, with its principal place of business at Carretera Cancún Chetumal km 22, herein represented in accordance with its organizational documents.
and, in the capacity of intervening and consenting party:
COMPANHIA DE PARTICIPAÇÕES EM CONCESSÕES, a corporation organized under the Laws of Brazil, with headquarters in the City of São Paulo, State of São Paulo, at Rua Pais Leme, No. 524, 4th floor, room 1, Pinheiros, Zip Code No. 05.424-904, enrolled with the CNPJ/MF under No. 09.367.702/0001-82, herein represented in accordance with its bylaws (“Company”).
WHEREAS:
A.Seller is the sole and lawful holder of 100% of the total and voting capital stock of the Company, on a fully diluted basis (as described in Section 9.2.1 and 9.2.2 hereunder);
B.the Company and/or the Target Companies are the sole and lawful owners of such number of shares, quotas or other equity securities representing, on a fully diluted basis, the Equity Interests in each of the companies indicated in “Exhibit A” (each, a “Subsidiary” and, collectively, jointly with the Company, the “Target Companies” and each a “Target Company”);
C.some of the Target Companies are parties to those certain concession agreements and interested management contracts (“contrato de gestion interesada”) as described in “Exhibit B” (each a “Concession Agreement”);
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D.some Target Companies entered into certain shareholders’ agreements as described in “Exhibit C” (the “Existing Shareholders’ Agreements”); and
E.subject to the verification (or waiver, as the case may be) of the Conditions Precedent and in accordance with the other terms and conditions of this Agreement, Seller wishes to sell to the Purchaser, and the Purchaser wishes to acquire from the Seller, all the Shares, and, indirectly, all of the Equity Interests, all free and clear from any Liens, except for the Permitted Liens (“Transaction”);
NOW THEREFORE, the Parties agree to enter into this Agreement, which shall be governed by and subject to the following terms and conditions:
CHAPTER 1.DEFINITIONS AND RULES OF INTERPRETATION
1.1Defined Terms. For purposes of this Agreement, capitalized terms or expressions, whether in the singular or plural form, regardless of gender, shall have the meaning ascribed to them in “Exhibit 1.1” attached hereto.
1.2Rules of Interpretation. For purposes of this Agreement, except as otherwise set forth herein:
(i) |
the titles and headings of the chapters and sections herein are merely for reference purposes and shall not be used for purposes of interpretation of this Agreement; |
(ii) |
all references herein to chapters, clauses, sections, preamble, schedules and exhibits shall be deemed as references to chapters, clauses, sections, preamble, appendixes and exhibits of this Agreement, unless the context requires otherwise; |
(iii) |
the terms “herein”, “in this Agreement”, “hereof”, “of this Agreement” and other terms of similar meaning refer to this Agreement as a whole, including its exhibits and schedules, and do not refer to any chapter, clause or other specific subdivision; |
(iv) |
any reference to any document or instrument shall be deemed as including all respective amendments, substitutions and restatements, unless otherwise expressly established herein; |
(v) |
the terms “inclusive”, “include”, “included” and analogous terms shall be interpreted as if followed by the expression “without limitation to”; |
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(vi) |
references to a Person also include the respective heirs, successors and authorized assignees of that Person, as the case may be; |
(vii) |
references to the provisions of any Applicable Law shall be interpreted as references to such provisions as they may be or have been amended, restated or replaced; |
(viii) |
for purposes of the representations and warranties granted hereto pursuant to the “knowledge” of a certain Person, (a) an individual shall be deemed to be aware of a fact or event if said Person is actually aware of such fact or event, (b) with respect to the Seller or any Target Company, it shall be deemed to be aware of a fact or event if any of the individuals listed in “Exhibit 1.2(viii)(b)” (A) is actually aware of such fact or event, or (B) would reasonably be expected to be aware of, by virtue of their position, duties or responsibilities in the Seller and/or in the Target Companies, after due inquiry and pursuant to the Applicable Law; and (c) with respect to the Purchaser, it shall be deemed to be aware of a fact or event if any of the individuals listed in “Exhibit 1.2(viii)(c)” (A) is actually aware of such fact or event, or (B) would reasonably be expected to be aware of, by virtue of their position, duties or responsibilities in the Purchaser, after due inquiry and pursuant to the Applicable Law; |
(ix) |
the expressions “best efforts”, “reasonable best efforts”, “commercially reasonable efforts” or similar expressions may be used interchangeably and shall mean an obrigação de meio requiring reasonable investments and expenditures, engagement of appropriate personnel, and an overall effort to achieve the intended goal (including diligent pursuit of applicable counterparties), which shall not include any obligation to (a) incur extraordinary costs, expenses or obligations, or (b) perform any illegal or extraordinary and materially burdensome act or (c) guarantee a specific result; |
(x) |
whenever a reference is made in this Agreement to a potential or “threatened” litigation or Third Party Claim or other act that represents a “threat”, such reference shall mean that (a) a requirement or representation from the relevant counterparty was expressly manifested or there were written indications concerning the existence thereof, or (b) a written notice was issued to inform that a Third Party Claim, or any other similar action, shall be commenced, performed or otherwise alleged in the future; |
(xi) |
the term “ordinary course”, when used in connection with the conduct by the Target Companies of their respective businesses, means any act, |
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transaction or activity conducted in a commercially reasonable and professional way, consistent with past procedures and practices and in compliance, in all material aspects, with the Applicable Law;
(xii) |
all terms contemplated herein shall be counted excluding the first day and including the last day, and all terms set forth herein ending on a day that is not a Business Day shall be automatically extended to the first following Business Day; |
(xiii) |
this Agreement has been jointly drafted and negotiated by both Parties. Accordingly, no provision, clause, or section of this Agreement shall be construed against either Party on the basis of authorship or drafting responsibility; and |
(xiv) |
without prejudice to Section 11.2(vii), to the extent that the Disclosure Letter specifies an amount of potential exposure, such amount shall be deemed a good faith estimate by the Seller of the potential amount at stake and shall not be construed as a representation, guarantee, or limitation of the actual amount of any potential loss. |
CHAPTER 2.OBJECT
2.1Purchase and Sale. Based on the representations and warranties contained in this Agreement and subject to the terms and conditions set forth herein, especially in relation to the verification (or waiver, as applicable) of the Conditions Precedent and performance of the Closing acts, and each on an irrevocable and irreversible basis, Seller hereby undertakes to, at the Closing Date, sell to Purchaser, and Purchaser hereby undertakes to, at the Closing Date, acquire from Seller, all, but no less than all, of the Shares free and clear from any Liens other than Permitted Liens, provided that the Company holds, on the Closing Date, directly or indirectly, all the Equity Interests, free and clear from any Liens other than Permitted Liens.
2.1.1The Shares and the Equity Interests shall be sold on the Closing Date to the Purchaser together with all rights inherent to the Shares and the Equity Interests, including any rights deriving from any advances on future capital increases that the Seller may have made prior to the Closing Date that have not been capitalized/paid in and any rights to dividends, interest on capital (juros sobre o capital próprio) or any other remuneration in connection with the Shares and the Equity Interests arising up to the Closing Date that have not been effectively declared by the Closing Date in compliance with the provisions of this Agreement.
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CHAPTER 3. PURCHASE PRICE AND PAYMENT CONDITIONS
3.1Purchase Price. In consideration for the purchase of all Shares and all the other obligations undertaken by Seller under this Agreement, Purchaser hereby undertakes to pay to Seller the aggregate amount of five billion Brazilian Reais (R$ 5,000,000,000.00) (“Base Purchase Price”), which shall be adjusted as per Chapter 4 below (the “Purchase Price”).
3.1.1Allocation of the Purchase Price. The Purchase Price shall be allocated among the Equity Interests as provided in “Exhibit 3.1.1”.
3.1.2 Interest. The Purchase Price, as adjusted by the Year-End Adjustment, shall be adjusted by a [**] (“Interest Rate”) as from the first day of the Locked Box Period until the Business Day immediately prior to the payment by Purchaser.
3.2Payment of the Purchase Price. At Closing, Purchaser shall pay the Purchase Price, in Brazilian Reais, to Seller in connection with the Shares, by means of a wire transfer of immediately available funds to the respective Seller’s bank account in Brazil to be informed by Seller by means of a written notice delivered to Purchaser within two (2) Business Days after a Closing Notice is delivered.
3.3Discharge. The Purchaser may elect to pay the Purchase Price using funds maintained in Brazilian Reais or in US Dollars. If the Purchaser elects to make the payment from a bank account in US Dollars, the evidence of immediately available funds in US$ into the bank account of the Seller, in an amount sufficient to, after the settlement of the respective foreign exchange agreement as per Section 3.4, satisfy any applicable fees and Taxes charged to the Seller as provided in Section 3.4 and to have the Purchase Price in R$ available to the Seller, shall be deemed as an irrevocable and irreversible release from the respective payment obligations for all legal purposes. If the Purchaser elects to make the payment from a bank account in Brazilian Reais, the evidence of immediately available funds in R$ into the bank account of the Seller, in the amount of the Purchase Price, shall be deemed as an irrevocable and irreversible release from the respective payment obligations for all legal purposes.
3.4Payment Currency – Foreign Exchange Agreements. The payment of any amounts contemplated in this Chapter 3 by the Purchaser to the Seller shall be made in Brazilian Reais (R$), based on the exchange rate to convert US Dollars (USD) into Brazilian Reais (R$) used by the Seller’s financial institution in Brazil in charge of the respective currency exchange transaction; provided that the Seller shall (i) make best efforts to obtain exchange rate quotes from three (3) banks or brokers (which shall include [**]), (ii) negotiate with the bank or broker of its choice, and (iii) no later than two (2) Business Days prior to the due date, contractually lock-in with the bank or broker the applicable exchange rate (consistent with market terms) that shall apply for the conversion of USD into R$ on the due date (such rate, the “Locked-In FX Rate”).
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On each due date of any amounts contemplated in this Chapter 3 from the Purchaser to the Seller, the Purchaser shall issue (or cause to be issued) irrevocable and irreversible order of payment in favor of the Seller (and submit a copy of the order to the Seller) in an amount in USD that is sufficient to, upon conversion into BRL at the Locked-In FX Rate, satisfy any applicable costs and IOF-Câmbio (per the proviso in the next sentence) in addition to the amounts that are due at the due date. As recipient of the relevant payment, the Seller shall timely execute the relevant foreign exchange agreement at the Locked-In FX Rate to enable the receipt by the Seller of any such amounts; provided that any fees charged by such Brazilian financial institutions for execution of the foreign exchange agreement and the Tax on Financial Operations (IOF - Câmbio) applicable to payment of the Purchase Price (if any) shall be borne by the Purchaser.
3.4.1SCE-IED. The Company shall obtain the SCE-IED in the name of the Purchaser, in order to allow the Purchaser to make the payments under this Chapter 3, and deliver a copy of such registration to the Purchaser, within three (3) Business Days after the Closing Notice is delivered. For the purpose hereof, the Purchaser shall inform to the Company, within two (2) Business Days after the Closing Notice is delivered, all information that may be required from the Purchaser for the purpose of obtaining the SCE-IED in accordance with the Applicable Law. The Company and Seller shall not be liable for any delay or impairment to obtain the SCE-E-IED, except in case of willful misconduct or gross negligence, but each acknowledges that the SCE-IED is a required prerequisite for payment of the Purchase Price.
3.5Taxes on the Purchase Price. Each Party shall be liable, in accordance with Applicable Law, for calculating, ascertaining, withholding and paying all Taxes under its respective liability in connection with the Transaction. The Purchase Price shall not be increased or decreased as a result of any Taxes due by any of the Parties as a result of the purchase and sale set forth herein or due to the payment method of the Purchase Price, except for the IOF-Câmbio as set forth in Section 3.4.
CHAPTER 4.PRICE ADJUSTMENT
4.1Price Adjustment. The Purchase Price will be subject to: (i) a closing accounts mechanism in relation to the period to be ended on December 31, 2025 (“Base Date”) as detailed in Section 4.2 (“Year-End Adjustment”) and (ii) afterwards, a locked box mechanism as detailed Section 4.3 (“Locked Box Adjustment” and, together with the Year-End Adjustment, the “Price Adjustment”).
4.2Year-End Closing Accounts. The Purchase Price will be adjusted, upwards or
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downwards, as the case may be, as a result of the aggregate net variation between (i) the Reference Net Debt and the Year-End Net Debt, (ii) the Reference Working Capital and the Year-End Working Capital, and (iii) the Reference CAPEX and the Actual CAPEX, without duplication, as detailed in this Section 4.2.
4.2.1Calculation of the Year-End Adjustment. The Year-End Adjustment shall be calculated as follows:
(i)if the Year-End Net Debt is higher than the Reference Net Debt, such difference shall be deducted from the Purchase Price; if, however, the Year-End Net Debt is lower than the Reference Net Debt, then the difference shall be added to the Purchase Price and, in either case, settled pursuant to Section 4.6;
(ii)if the Year-End Working Capital is higher than the Reference Working Capital, such difference shall be added to the Purchase Price; if, however, the Year-End Working Capital is lower than the Reference Working Capital, then the difference shall be deducted from the Purchase Price and, in either case, settled pursuant to Section 4.6; and
(iii)if the Actual CAPEX is lower than the Reference CAPEX, such difference shall be deducted from the Purchase Price and settled pursuant to Section 4.6.
4.2.2Illustrative Examples. “Exhibit 4.2.2” attached hereto contains some limited examples, for mere illustrative purposes, of calculation of Working Capital, Net Debt and the Year-End Price Adjustment.
4.3Locked Box and Permitted Adjustments. During the period starting on the day immediately following the Base Date and up to the Closing Date (“Locked Box Period”), the Purchase Price shall be, in addition to the adjustment provided under Section 3.1.2, (i) reduced by the aggregate amount of Leakage; and (ii) increased by the aggregate amount of Eligible Contributions. The amounts referred to in this Section shall also be adjusted on a daily basis by the Interest Rate from the date of their disbursement up to the Business Day immediately prior to the Closing Date and will be part of the Purchase Price.
4.4Closing Price Adjustment Calculation. Seller shall prepare and deliver to the Purchaser the Company’s consolidated financial statements for the fiscal year ended on the Base Date until February 28, 2026, using the same accounting principles, methodologies and policies consistently adopted prior to the Base Date, consistently with past practices and in accordance with the Applicable Laws and Accounting Principles, in all material respects (which shall always prevail and provided that, in case of a conflict between past practices and the Accounting Principles, the Parties shall adopt such practice that best reflects the underlying Target Company’s past practices and that is permitted by the Accounting Principles and the Applicable Law) (“Year-End Statements”).
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No later than five (5) Business Days prior to the Closing Date, Seller shall prepare and deliver to the Purchaser a written statement containing (i) the calculation or indication, as applicable, of the Year-End Net Debt, Year-End Working Capital, Actual CAPEX, and Year-End Adjustment, based on the Year-End Statements, and (ii) the Locked Box Adjustment, along with any reasonably required supporting documentation thereof (“Seller Statement”). Upon receipt of the Seller Statements, Purchaser shall have the right to review and request any reasonably necessary clarifications and adjustments, which shall be considered in good faith by Seller, provided, however, that the lack of any agreement in connection therewith shall not preclude the Closing to take place based on the Seller Statements, and any potential disagreement shall be subject to the post-closing adjustment mechanism set forth in Section 4.5.
4.5Post-Closing Price Adjustment Verification. No later than ninety (90) days as from the Closing Date, Purchaser may prepare and deliver to the Seller a statement containing (i) the calculation or indication, as applicable, of the Year-End Net Debt, Year-End Working Capital, Actual CAPEX, and Year-End Adjustment, based on the Year-End Statements, and (ii) the Locked Box Adjustment, along with any reasonably required supporting documentation thereof (“Purchaser Statement”), which shall be prepared using the same accounting principles, methodologies and policies consistently adopted prior to the Base Date, consistently with past practices and in accordance with the Applicable Laws and Accounting Principles, in all material respects (which shall always prevail and provided that, in case of a conflict between past practices and the Accounting Principles, the Parties shall adopt such practice that best reflects the underlying Target Company’s past practices and that is permitted by the Accounting Principles and the Applicable Law). The lack of a timely delivery by Purchaser of a Purchaser Statement shall be deemed as an irrevocable agreement over the Seller Statement, which shall be deemed final and binding for all purposes of this Agreement.
4.5.1Accounting Adjustments Neutralization. For purposes of the Year-End Statements and the ascertainment of the Price Adjustment, the Parties agree that any effects resulting from changes in accounting books, registries, policies, practices or procedures on which the Year-End Statements, the Reference Net Debt, or the Reference Working Capital are based, made after their respective as-of dates (datas-base), shall be disregarded.
4.5.2Review of the Price Adjustment Calculation. The Seller shall have a period of thirty (30) days to review the Purchaser Statement and shall inform the Purchaser, in writing, if it agrees or disagrees with the Purchaser Statement, provided that any divergence shall be grounded and described in reasonable details in such notice. The failure to manifest within the abovementioned period and according to the provisions herein shall be deemed as final acceptance of the Purchaser Statement, which will then become binding and enforceable against the Parties, for all purposes of this Agreement.
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4.5.3Divergences related to the Price Adjustment Calculation. If Seller submits a timely notice challenging the Purchaser Statement, the Parties shall meet to discuss and try to reach an amicable agreement regarding the controversial or disputed matters within fifteen (15) days from the delivery of a notice in this sense. If an agreement regarding the controversial or disputed items is reached, this agreement shall be formalized in a written instrument executed by the Parties, it being certain that, as from that moment, the Price Adjustment incorporating and/or reflecting the adjustments resulting from such agreement between the Parties shall be deemed to be final, binding and enforceable against the Parties for all purposes of this Agreement.
4.5.4Auditor. If the Parties fail to reach an agreement regarding any disputed or controversial item related to the Price Adjustment within the abovementioned period of fifteen (15) days, any matter that is still under dispute (and exclusively those disputed matters) shall be submitted, within ten (10) days as from the end of said fifteen (15)-day period, to the review of an independent auditor selected by mutual agreement among the Parties (or, in the absence of mutual agreement, by any of the so-called “Big 4” firms randomly chosen, provided that in no event the selected firm shall be the independent auditor of a Party or any of its Affiliates or have rendered services to such Party in the context of the Transaction) (“Auditor”). The Auditor shall act as a technical expert (and not as an arbitrator) and shall be instructed to prepare and report its decision, exclusively with respect to the matters submitted to its review, within thirty (30) days from its engagement, and its opinion shall be conclusive and binding upon the Parties, except for any manifest error. The fees of the Auditor shall be borne by the Party whose calculation differs the most from the Auditor’s opinion.
4.5.5Arbitration. If, for any reason, the contracting of the Auditor, for the purposes and within the scope established in this Chapter 4, is not possible, both Purchaser and Seller will be free to commence an arbitration proceeding to resolve said conflict, pursuant to the rules established in Chapter 13.
4.5.6Undisputed Amounts. The Parties hereby acknowledge and agree that any undisputed amount of the Price Adjustment shall be paid to Seller or to Purchaser, as the case may be, regardless of any pending divergence or controversy related to other items of the Price Adjustment.
4.6Financial Settlement of the Price Adjustment. On the fifth (5th) Business Day counted from the final definition of the Price Adjustment (or from the moment in which the undisputed amounts are defined pursuant to Section 4.5.6), the Price Adjustment determined pursuant to Section 4.5 shall be paid as follows:
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(i) |
if the Price Adjustment is in favor of the Seller, the Purchaser shall pay to Seller the corresponding amount, adjusted on a daily basis by the Interest Rate from the Closing Date until the Business Day immediately prior to the payment, as per the same payment instructions provided in Section 3.2; |
(ii) |
if the Price Adjustment is in favor of Purchaser, the Seller shall pay to the Purchaser the corresponding amount, adjusted on a daily basis by the Interest Rate from the Closing Date until the Business Day immediately prior to the payment, by means of a wire transfer of immediately available funds to the respective Company’s bank account in Brazil to be informed up to five (5) Business Days prior to the due date. Alternatively, Seller may choose to offset such amount against any payments due and payable by the Purchaser as Transitional Purchase Price Adjustment, pursuant to Section 10.9.4. |
CHAPTER 5.SUBMISSIONS TO GOVERNMENTAL AUTHORITIES AND TREATMENT OF OTHER SHAREHOLDERS
5.1Submissions under the Concession Agreements. Subject to the terms and conditions of this Agreement, Purchaser and Seller shall (and Seller shall cause (or shall, for any Target Company not Controlled solely by the Seller, exercise all its rights and endeavor its best efforts to cause) the Target Companies to) use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable under Applicable Law to prepare, make and file, as promptly as practicable, all notices, statements, filings, submissions of information, applications and other documents with any Governmental Authorities that may be reasonably necessary to obtain any approval or consent required to consummate the Transaction under the Concession Agreements, as listed in “Exhibit 5.1” (“Concession Approvals”).
5.1.1Cooperation; Joint Efforts.
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The Parties shall (and Seller shall cause (or shall, for any Target Company not Controlled solely by the Seller, exercise all its rights and endeavor its best efforts to cause) the Target Companies to) jointly cooperate and consult with each other regarding the defense of the Transaction before any Governmental Authority in connection with any Concession Approval, and shall consider in good faith the other Party’s views and comments, as well jointly control and direct such defense, including by (directly and, in case of the Seller, also causing the Target Companies to) (i) jointly developing the form and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party hereto in connection with proceedings under or relating to any Concession Approval prior to their submission; (ii) consult with the other Parties hereto with respect to, and shall provide any necessary or appropriate information with respect to (and, in the case of correspondence, provide the other Parties (or their counsel) copies of), all filings made by such party with any Governmental Authority or any other information supplied by such Party to, or meetings, conferences or correspondence with, any Governmental Authority in connection with the Transaction; (iii) to the extent permitted by the applicable Governmental Authority, give the other Parties or their counsel the opportunity to attend and participate in any meetings or conferences with such Governmental Authority; (iv) as promptly as reasonably practicable, resolve any objections as may be asserted by any Governmental Authority in connection with any Concession Approval and to avoid the entry of, or effect the dissolution of, any decree, order, judgment, injunction, temporary restraining order in any suit or proceeding, that would otherwise have the effect of preventing, enjoining or prohibiting the consummation of the Transaction (including by defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging the Transaction); and (v) as promptly as reasonably practicable, supply any additional information and documentary material that may be requested by any such Governmental Authority. Without limitation to the foregoing, the Seller shall (and Seller shall cause (or shall, for any Target Company not Controlled solely by the Seller, exercise all its rights and endeavor its best efforts to cause) the Target Companies to) endeavor best efforts to schedule a courtesy meeting of both Parties (and the applicable Target Company) with each Governmental Authority, as soon as reasonably practical after the date hereof.
5.1.2Costs. All costs related to the obtaining of Concession Approvals, including the applicable registry fees, shall be exclusively borne by Purchaser, provided, however, that each Party shall bear the costs and expenses related to the attorneys’ fees of their respective legal advisors. If a Governmental Authority demands a fine as a result of any act, omission or non-compliance with any obligation by the Parties, the Party liable for such act, omission or non-compliance shall be individually liable for the payment of such fine.
5.1.3Restrictions Imposed by the Governmental Authorities. The Parties shall always proactively negotiate and make best efforts to enable and proceed with the Closing, including (i) entering into any agreements, commitments, or contract with the Governmental Authorities, and (ii) opposing fully and vigorously any request for, the entry of, and seek to have vacated or terminated, any order, judgment, decree, injunction or ruling of any Governmental Authority that could restrain, prevent or delay the Closing, including by defending through litigation with respect to any action or proceedings filed by the Governmental Authority. In the event the Governmental Authority recommends any condition to the approval, Parties shall negotiate in good faith to complete the Transaction.
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5.1.4Other Governmental Authorities. With respect to any Concession Agreement under which no prior approval by a Governmental Authority is required for the consummation of the Transaction, the Parties shall, and Seller shall cause (or shall, for any Target Company not Controlled solely by the Seller, exercise all its rights and endeavor its best efforts to cause) the applicable Target Companies to, cooperate in good faith and use their reasonable best efforts to prepare and implement a joint communication plan aimed at ensuring consistent and coordinated interactions to respond to any requests and clarifications that may be presented by such Governmental Authorities in connection with the Transaction. Such cooperation shall include: (i) promptly informing each other of any contact, inquiry, request for information, or demand for documents received from such Governmental Authorities in connection with the Transaction; (ii) jointly preparing responses, documents and clarifications, with mutual review and input prior to submission or disclosure; and (iii) providing each other with copies of any material correspondence or submission sent to or received from any such Governmental Authority. Each Party shall appoint a representative to be the point of contact for the purposes of this coordination and shall keep the other Party reasonably informed of any developments related to such Governmental Authorities that may impact the Transaction or the Parties’ respective obligations hereunder.
5.1.5No Communication. The Parties shall not, and Seller shall cause (or shall, for any Target Company not Controlled solely by the Seller, exercise all its rights and endeavor its best efforts to cause) the Target Companies not to, without the participation and prior written consent of the other Party, carry out any communication or participate in any meetings or discussions with any Governmental Authority, exclusively with respect to the Transaction or the matters contemplated herein. For the avoidance of doubt, Seller and the Target Companies may carry out any communication or participate in any meetings with any Governmental Authority in accordance with the ordinary course of business, provided that such communication or meetings are not related to the Transaction or the matters contemplated herein.
5.1.6Without limiting the foregoing, the Seller shall cause (or shall, for any Target Company not Controlled solely by the Seller, exercise all its rights and endeavor its best efforts to cause) each applicable Target Company to comply with the terms of this Section 5.1, as if each such Target Company were a party hereto; provided that the Seller shall be responsible for indemnifying the Purchaser for any failure of any Target Company to act in accordance with this Section 5.1, except to the extent the Seller does not have the powers to control the Target Companies’ actions through its instructions and/or affirmative vote, in which case Seller’s indemnity shall be limited to its failure to exercise its rights or to endeavor efforts as provided herein.
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5.2Submission to Antitrust Authorities. As soon as practicable and in any event within the timeframe provided for under the Applicable Law of the corresponding jurisdiction, following the submission requirement verifications per Section 5.2.1, Purchaser and Seller shall jointly prepare and, to the extent permitted by Applicable Law, jointly present all fillings, notices and communications to the Antitrust Authorities necessary to allow the closing of the Transaction, including any pre-notification draft in jurisdictions where such is the custom or otherwise required, as listed in “Exhibit 5.2” (each, an “Antitrust Notice”). Subject to the terms and conditions of this Agreement and the Applicable Law of each jurisdiction, the Seller and the Purchaser shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and assist and cooperate with the other Parties in doing, all things reasonably necessary, proper or advisable under Applicable Law to consummate the Transaction as promptly as reasonably practicable.
5.2.1Submission requirement verification. No later than January 31, 2026 (and, if Closing does not occur on or before December 31, 2026, then also no later than January 31, 2027):
(i) |
(x) the Purchaser shall conduct its own confirmation and assessment, in respect of the immediately preceding calendar year, of whether the representations granted in Section 8.1.10 would continue to be true, correct and complete as of the Closing Date; and (y) the Seller shall conduct its own confirmation and assessment, in respect of the immediately preceding calendar year, of whether the representations granted in Section 9.2.37 would continue to be true, correct and complete as of the Closing Date; |
(ii) |
if the representations granted by the Purchaser in Section 8.1.10 or by the Seller in Section 9.2.37 would not be true, correct and complete as of the Closing Date, then each Party (x) shall have the right and obligation to amend their own representation to be granted as of Closing so that it would be true, correct and complete as of the Closing Date and (y) shall give notice to the other Party of such event, as soon as reasonably practicable; and |
(iii) |
without prejudice to the Purchaser’s and the Seller’s confirmation of their respective representations under Section 8.1.10 and Section 9.2.37, the Parties shall mutually assist and cooperate with each other in determining whether an Antitrust Notice is required. |
5.2.2Control of Submission Process. The Parties shall, and Seller shall cause
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(or shall, for any Target Company not Controlled solely by the Seller, exercise all its rights and endeavor its best efforts to cause) the applicable Target Companies to, cooperate among them in the elaboration of the Antitrust Notices and shall timely deliver to each other all information and documentation reasonably required for this purpose. To the extent permitted by Applicable Law, the Parties shall jointly cooperate and consult with each other regarding the defense of the Transaction before any Antitrust Authority, provided that Purchaser shall, after considering in good faith the Seller’s views and comments, be entitled to control and direct such defense and take the lead in the scheduling of, and strategic planning for, any meetings with, and the conducting of negotiations with, Antitrust Authorities regarding the Transaction. Purchaser shall, with cooperation of Seller, answer as soon as practicably possible (but in any case within the term imposed by the respective Antitrust Authority) to all information required and questions presented by the Antitrust Authority, and shall proactively negotiate with the Antitrust Authorities, in good faith, in order to obtain the unconditional approval for the consummation of the Transaction within the shortest time possible.
5.2.3Joint Efforts. To the extent permitted by Applicable Law, the Parties shall jointly develop the form and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Notice prior to their submission. Prior to the Closing, to the extent permitted by Applicable Law, each Party shall (i) consult with the other Parties with respect to, and shall provide any necessary or appropriate information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of), all filings made by such party with any Antitrust Authority or any other information supplied by such party to, or meetings, conferences or correspondence with, any Antitrust Authority in connection with this Agreement and the Transaction, (ii) permit the other Parties or their counsel to review in advance any substantive information, correspondence or filing (and the documents submitted therewith) intended to be given by it to any Antitrust Authority; provided that such materials may be redacted to remove references to commercially or competitively sensitive information; provided, further, that portions of such copies that are competitively sensitive may be designated as “outside antitrust counsel only”, (iii) to the extent permitted by the applicable Antitrust Authority, give the other Party or its counsel the opportunity to attend and participate in any meetings or conferences with such Antitrust Authority and (iv) if such Party receives a request for additional information or documentary material from any Antitrust Authority with respect to the Transaction, use reasonable best efforts to provide, or cause to be provided, after consultation with the other Parties, such additional information or material as promptly as practicable.
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5.2.4Costs. All costs related to the registry of the Antitrust Notices, including the applicable registry fees, shall be exclusively borne by Purchaser. Each of the Parties shall bear the costs and expenses related to the attorneys’ fees of their respective legal advisors. If the Antitrust Authority demands a fine as a result of any act, omission or non-compliance with any obligation by the Parties, the Party liable for such act, omission or non-compliance shall be individually liable for the payment of such fine.
5.2.5Restrictions Imposed by the Antitrust Authorities. Purchaser shall always proactively negotiate and make all efforts to, and take any measures to, enable and proceed with the Closing, including (i) entering into any agreements, commitments, cease-and-desist commitments, stipulations or contract with the Antitrust Authorities, (ii) opposing fully and vigorously any request for, the entry of, and seek to have vacated or terminated, any order, judgment, decree, injunction or ruling of any Antitrust Authority that could restrain, prevent or delay the Closing, including by defending through litigation or taking any other measure with respect to any action or proceedings filed by the Antitrust Authority, (iii) divest, segregate or otherwise dispose of any assets, (iv) take any other measure (or agree to take any of the measures referred to above) or agree with any prohibition, limitation, monitoring or periodical obligations in relation to its properties, operations or control of, or related to, any subsidiaries or Affiliates, or any of their respective businesses, operations, assets, product lines or properties, (v) not compete in a given geographic area or business field and/or (vi) restrict the form how, or if, the Purchaser, the Target Companies and any of its subsidiaries or Affiliates conduct its business), provided, however, that the Purchase Price shall not be affected by any restriction, condition or divestment agreed between Purchaser and the Antitrust Authorities. In the event the Antitrust Authority recommends any condition to the approval, Purchaser shall negotiate, in good faith, and to the largest possible extent, it being, however, required to complete the Transaction in any case.
5.3Tag Along Rights. The Parties acknowledge and agree that, with respect to the Equity Interests in those certain Subsidiaries listed in “Exhibit 5.3” (“Tag Along Companies”), the third parties indicated in “Exhibit 5.3” (“Tagging Shareholders”) shall have the tag along right to sell its respective equity interests in the Tag Along Companies to the Purchaser (“Tag Along Right”), under the same terms and conditions provided in this Agreement.
5.3.1Delivery of Right of Tag Along Notice. Solely for enabling the potential exercise of the Tag Along Right, Seller will be authorized to disclose the terms and conditions of the Transaction and/or a copy of this Agreement or any other documents referred to herein.
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The Tag Along Right shall be extended to the Tagging Shareholders in such manner and in accordance with such notice as mutually agreed between the Seller and the Purchaser, in accordance with the terms of this Agreement (“Tag Along Notice”); provided that the Purchaser shall, in its capacity as the potential new controlling shareholder of the Tag Along Company, make an irrevocable purchase offer directly to the Tagging Shareholders for their shares in each Tag Along Company, conditioned upon the Purchaser acquiring the Control of the Tag Along Company, which offer shall include a draft purchase and sale agreement that contains all terms and conditions of this Agreement as they apply to the Tag Along Right, including a price per share that is equal to the allocation provided in “Exhibit 3.1.1” for the Tag Along Company and subject to the same adjustments hereunder (“Draft Tag SPA”). Parties shall endeavor their best efforts to deliver the Tag Along Notice along with the Draft Tag SPA as soon as possible and, in any case, within thirty (30) days as from the date hereof, unless the term is extended by mutual agreement by the Parties.
5.3.2Implementation of the Tag Along Right. If the Tag Along Right is validly exercised and the Tagging Shareholder accepts the irrevocable purchase offer and the Draft Tag SPA, Purchaser shall be obliged to directly acquire the underlying Equity Interests held by the Tagging Shareholders in the Tag Along Companies in accordance with the terms of the Draft Tag SPA, on the Closing Date; provided, however, that, in no event the closing of any such transaction between the Purchaser and the Tagging Shareholder shall be deemed a condition for the Closing under this Agreement, unless ANAC requires the closing of the Tagging Shareholder to occur simultaneously with the Closing of the Transaction.
5.3.3Reasonable Best Efforts. Seller and Purchaser shall use their respective reasonable best efforts to take, or cause to be taken, all actions, and assist and cooperate with each other in doing, all things reasonably necessary, proper or advisable to consummate the Transaction (and, if the Tag Along Right is exercised, the Draft Tag SPA) as promptly as reasonably practicable.
5.3.4No Communication. No Party shall, without the participation and prior written consent of the other Party (which consent shall not be unreasonably withheld or delayed), carry out any communication or participate in any meetings or discussions with the Tagging Shareholders or any Third Party, including any Governmental Authority, with respect to the Transaction, the Tag Along Right, or the matters contemplated herein.
CHAPTER 6.CONDITIONS PRECEDENT AND CONDUCT OF BUSINESS
6.1Conditions Precedent to the Parties. The obligation of the Parties to perform the Closing of the Transaction is subject to the verification (or waiver by all Parties, when
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applicable) of each one of the following conditions (“Parties’ Conditions”) until the respective Closing Date:
(i) |
Antitrust Approval. All approvals from the Antitrust Authorities required to be obtained or received for that Closing in accordance with Applicable Law shall have been obtained or received (or the respective waiting period set forth in Applicable Law shall have expired or been terminated) or, if no such approval is required, the necessary Antitrust Notice shall have been submitted in accordance with the Applicable Law. |
(ii) |
Inexistence of Legal Impediments. No Governmental Authority, with powers over any of the Parties, shall have rendered, issued, promulgated, applied or instituted any statute, norm, rule, injunction or any other act or order (whether temporary, preliminary or permanent) that is in force and effect as of the Closing Date and has the effect to (i) make the Transaction illegal, null or void, in total or in part; or (ii) restrict or prohibit the consummation of the Transaction, provided, however, that the Party affected by any such order or injunction shall endeavor its best efforts to make said order or injunction to be revoked, nullified or suspended. |
(iii) |
Concession Approvals. All Concession Approvals shall have been duly obtained in connection with the respective Subsidiary. |
(iv) |
[**] Waiver. The Parties shall have obtained the waiver from [**] under certain financing agreements, as indicated in “Exhibit 6.1(iv)”, and subject to Section 6.9 below. |
6.2Conditions Precedent to the Seller. The obligation of the Seller to perform the Closing of the Transaction is subject to the verification (or waiver by Seller, when applicable) of each one of the following conditions (“Seller’s Conditions”) until the respective Closing Date:
(i) |
Representations and Warranties by Purchaser. All Fundamental Representations made by the Purchaser under this Agreement shall be true, correct and complete in all respects on the date hereof and shall remain true, correct and complete in all respects until (and including) the Closing Date, and all other representations and warranties made by Purchaser under Chapter 8 shall be true, correct and complete in all material respects on the date hereof and shall remain true, correct and complete in all material respects until (and including) the Closing Date, except for those representations and warranties relating to a specific date (which shall remain true, correct and complete in all of their material |
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respects on such date).
(ii) |
Compliance with this Agreement. The Purchaser shall have complied with all its obligations under this Agreement in all material respects that are required to be performed until the Closing Date. |
6.3Conditions Precedent to the Purchaser. The obligation of the Purchaser to perform the Closing is subject to the verification (or waiver by Purchaser, when applicable) of each one of the following conditions (“Purchaser’s Conditions” and, together with the Parties’ Conditions and the Seller’s Conditions, the “Conditions Precedent”) until the Closing Date:
(i) |
Representations and Warranties by Seller. All Fundamental Representations made by Seller under this Agreement shall be true, correct and complete in all respects on the date hereof and shall remain true, correct and complete in all respects until (and including) the Closing Date; and all other representations and warranties made by Seller under Chapter 9 shall be true, correct and complete in all material respects on the date hereof and shall (subject to the right of Seller to update the Disclosure Letter pursuant to Section 9.4) remain true, correct and complete in all material respects until (and including) the Closing Date, except for those representations and warranties relating to a specific date (which shall remain true, correct and complete in all of their material respects on such date). |
(ii) |
Compliance with this Agreement. Seller and the Company shall have complied with all their obligations under this Agreement in all material aspects that are required to be performed until the Closing Date. |
(iii) |
Material Adverse Effect. No Material Adverse Effect shall have occurred between the date hereof and the Closing Date (which has not been cured until the Dropdead Date or the Closing Date, whichever is applicable). |
(iv) |
Third Parties’ Waivers. The Seller and the Target Companies shall have obtained the waivers from the Third Parties under certain agreements, as indicated in “Exhibit 6.3(iv)”, and subject to Section 6.9 below. |
(v) |
Shareholders’ Rights. The Seller and the Target Companies shall have extended to the Tagging Shareholders the Tag Along Rights under the terms and conditions set forth in Section 5.3; if such Tag Along Right is validly exercised, the Seller and the applicable Target Companies shall have complied with all of their applicable obligations set forth in Sections 5.3. |
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(vi) |
Certain Waivers. The Seller shall have obtained the waiver from the Third Party indicated in “Exhibit 6.3(vi)” or, alternatively, Seller shall have caused the applicable Target Companies to (i) exercise the call option right described in “Exhibit 6.3(vi)” (which includes the relevant purchase price and potential effects on the Price Adjustment) as well as (ii) obtain any necessary approvals from Governmental Authorities to fully implement the foregoing, as also described therein, in which case the provisions of Section 5.1 shall apply. For avoidance of doubt, the Purchase Price shall not be affected by any amounts that may be paid by any of the Target Companies in connection with the implementation of any actions under this Section, including (and except as indicated in “Exhibit 6.3(vi)”) the payment of the underlying call option price. Furthermore, nothing in this Agreement shall prevent the Seller or the Target Companies from assuming any representations, undertakings, or other necessary commitments to any Third Party, including Governmental Authorities, to the extent such actions (a) are required or advisable to enable the exercise of their rights under the underlying Existing Shareholders’ Agreement; and (b) do not result in materially burdensome conditions to the Target Companies and/or the Purchaser. |
6.4Mutual Cooperation. The Parties shall endeavor their best reasonable efforts and mutually cooperate in order to comply with the Conditions Precedent and carry out the Closing as soon as practically possible after the date hereof. In case any Condition Precedent cannot be fulfilled by the first anniversary of the date hereof, the Parties agree to discuss in good faith in view of the then-applicable circumstances to complete the Transaction as contemplated herein, without prejudice to Section 6.5 below.
6.5Dropdead Date. If, by [**] (the “Dropdead Date”), one or more Conditions Precedent have neither been verified nor waived as set forth herein, then the Dropdead Date shall be automatically extended for an additional [**] (without prejudice to further extensions by written agreement by the Parties). After such date, in case one or more Conditions Precedent have neither been verified nor waived as set forth herein, this Agreement may be terminated as provided in Section 12.1(iii). In such case, either Purchaser or Seller may deliver a notice to the other Party and terminate this Agreement, provided that the right to terminate this Agreement under this Section shall not be available to the Party whose default caused the non-occurrence of the Closing within the deadlines established herein.
6.6Conduct of Business. Between the date hereof and the respective Closing, with the primary purpose of preserving the current condition and value of the Target Companies, subject to the provisions of Applicable Laws and any restrictions that may be imposed by Antitrust Authorities, Seller shall, and shall cause the Target Companies to (or shall, for any Target Company not Controlled solely by the Seller, exercise all its rights and endeavor its best efforts to cause), conduct the respective businesses of each Target Company in the ordinary course.
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In addition, to the maximum extent legally possible, except as otherwise set forth in this Agreement or required under Applicable Law (including with respect to competition and antitrust aspects as well as subject, with respect to the Subsidiaries not wholly owned directly or indirectly by the Company, to any obligations under the Existing Shareholders’ Agreements or any fiduciary or similar duty under the Applicable Law) or the Concession Agreements, or as may be authorized by Purchaser under Section 6.6.2, Seller undertakes to, as from the date hereof and until Closing, and shall cause the Target Companies to (or shall, for any Target Company not Controlled solely by the Seller, exercise all its rights and endeavor its best efforts to cause such Target Company to), refrain from performing or executing any of the following acts (except if expressly provided under this Agreement):
| (i) | any amendments to the respective Existing Shareholders’ Agreements or Concession Agreements, except as provided under “Exhibit 6.6(i)”; |
| (ii) | spin-off, transformation, merger, merger of shares, amalgamation, change of corporate type (transformação) or any other kind of corporate restructuring; |
| (iii) | except as provided under “Exhibit 6.6(iii)”, approve any capital reduction (other than for absorbing accumulated losses (prejuízos acumulados), capital increase (other than (a) for the capitalization of reserves, as identified in balance sheet pursuant to the applicable Law, or (b) capital increases in the Subsidiaries by their current shareholders where the Seller or the respective Target Company shall maintain at least their current pro rata percentage ownership, or (c) as determined as a Eligible Contribution), cancellation, issuance, redemption or amortization of Shares and/or Equity Interests or other securities, split, combination or reclassification of Shares and/or Equity Interests or other securities (convertible or not) involving the Company and/or any of the Target Companies; |
| (iv) | amend the name, address, duration and corporate purpose, as currently provided in their bylaws (or articles of association, as applicable) set forth in “Section 9.2.5” of the Disclosure Letter; |
| (v) | acquire, by any means, through the Company and/or any of the Subsidiaries, any kind of interest in another entity or business organization, or enter into investment agreements, partner’s agreements, consortium agreements, or joint venture agreements with any Person for that purpose, except as set forth in Section 6.1(v); |
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| (vi) | dispose, for any reason, or create any Lien over the Shares and/or the Equity Interests (e.g. by sale, assignment and any other form of transfer or encumbrance of the Shares and/or the Equity Interests); |
| (vii) | any change of the accounting practices, except as may be required by Applicable Law or by the Accounting Principles; |
| (viii) | establish or terminate any plans of benefits or increase the remuneration of the directors, officers, managers and/or employees of the Target Companies, unless required by the applicable Law and/or by collective bargaining agreements and/or labor conventions existing on the date hereof, provided, however, that the Target Companies shall be authorized to (1) terminate the existing pension plans and release the amounts currently deposited thereunder in favor of the employees benefiting from such plans (or under any other arrangement mutually agreed upon by the Parties), and (2) perform any acceleration of the vesting periods or similar anticipation event of the existing phantom stock plan and stock option plan which are disclosed in “Section 9.2.24(ii)” of the Disclosure Letter (“ILP Acceleration”); |
| (ix) | except for the retention bonuses indicated in “Exhibit 6.6(ix)” (“Retention Bonuses”), pay or enter into any contract requiring the payment of any bonus, success fee or other cash and non-cash incentives to any of the directors, officers, managers, employees, service providers and/or other collaborators of the Target Companies, in connection with the consummation of the transactions set forth herein; |
| (x) | dismiss any key person of the Company and/or of any Subsidiary as listed in “Exhibit 6.6(x)” (“Key-Employee”), or change any of the terms and conditions of their relationship with the Company and/or with the relevant Subsidiary, except (a) if required by the Applicable Law and/or by collective bargaining agreements and/or labor conventions existing on the date hereof; and/or (b) in case of dismissal with cause (justa causa) as defined in the applicable Law; |
| (xi) | hire any director, officer, manager (administrador) or other key-employee, or engage any key service provider on an exclusive basis, in each case with an annual aggregate compensation in excess of [**] or its equivalent in local currency per the FX Rate as of the date of hiring), except (a) in the ordinary course of business, or (b) for replacement of any director, officer, manager or other key-employee (or exclusive service provider) in the same or a substantially similar role, so long as the replacement’s total annual compensation does |
24
not exceed by more than [**] the total annual compensation of the individual or service provider replaced;
| (xii) | contracting of any loan or financing in an amount that (x) if reflected in the Year-End Net Debt, causes the aggregate Indebtedness of the Target Companies to exceed by more than [**] the existing aggregate Indebtedness as set out in the most recent of the Financial Statements, or (y) if not reflected in the Year-End Net Debt, causes the aggregate Indebtedness of the Target Companies to exceed [**] relative to the aggregate Indebtedness of the Target Companies as of the Base Date; and, in either case, except as described under Section 6.9; |
| (xiii) | make any new investments and other capital expenditures (CAPEX), except as required under the terms of the Concession Agreements or Applicable Law, provided, however, that the Target Companies shall be permitted to, individually or jointly, make any new investments and other capital expenditures (CAPEX) in an aggregate amount lower than [**] (or its equivalent in local currency per the FX Rate as of the date the underlying contract(s) are entered into) in a single transaction or in a series of related transactions per fiscal year; |
| (xiv) | enter, amend, waive any right under, cancel or voluntarily terminate any Material Agreement (other than the Concession Agreements), except (i) with respect to new loans or financing agreements permitted under Section 6.6(xii); (ii) for a termination based on a default (which shall be material and shall have occurred after the date hereof) of the counterparty, so long as the Seller and the applicable Target Company ensure that the Seller and the Target Companies will not be adversely affected by such termination and will continue their operations in the ordinary course; (iii) with respect to any Material Agreements that is expected to expire prior to the Closing Date and as necessary in the ordinary course of business, a renewal or extension that is made on terms and conditions that are substantially the same as, or more favorable to, the Target Companies than those of the original agreement, and provided Seller shall use commercially reasonable efforts so that the renewal or extension is agreed for the shortest possible term; and/or (iv) with respect to adjustments or corrections required by Applicable Law; |
| (xv) | amend, waive any right under, cancel or terminate any Licenses of the Target Companies, unless required by the Applicable Law; |
| (xvi) | except as provided under “Exhibit 6.6(xvi)”, enter into, amend or waive any right under, any agreement by and between, on one side, any of the Target |
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Companies, and on the other side, any of its respective Related Parties (including the Seller) that is not a wholly-owned Target Company;
| (xvii) | sell, assign or grant rights under any Intellectual Property (as defined below) owned and/or used by the Company, except in the ordinary course of business, on arms’ length and non-gratuitous terms, and provided that such sale, assignment or granting of rights does not impair the Target Companies’ ability to use the Intellectual Property in the ordinary course; |
| (xviii) | the acquisition or sale of any fixed asset, except for those required under the terms of the Concession Agreements (so long as made reasonably and on arm’s length terms) or to the extent required by Applicable Law; |
| (xix) | any material changes to the tax and financial policies, except for changes to comply with the requirements arising from changes in Applicable Law, including any changes in the Applicable Law due to the Brazilian Tax Reform; |
| (xx) | change of the external auditors or change of the terms of the current agreement with such external auditors; |
| (xxi) | settle, compromise or waive any rights relating to any litigation (judicial or administrative) or arbitration matters involving the Target Companies and any Governmental Authorities involving an amount that exceeds [**] (or its equivalent in local currency as per the FX Rate as of the relevant date); |
| (xxii) | approve or permit the Company and/or any of the Subsidiaries to grant guarantees to secure obligations of third parties, regardless of the amounts involved; |
| (xxiii) | change any Tax election, enter into any Tax incentive program or debt repayment program (programa de parcelamento) or carry out any voluntary disclosure (denúncia espontânea) in regard to any of the Target Companies; |
| (xxiv) | approve the filing, taking or bringing of any measure directed to judicial or extrajudicial reorganization (recuperação judicial ou extrajudicial), voluntary declaration of bankruptcy, or dissolution or liquidation of any of the Target Companies; |
| (xxv) | participate in any bid, auction, concession or any similar transaction, whether public or private, in any sector, or take any preparatory actions in |
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connection with the participation in any such transaction, including enter into any binding contracts with Third Parties aiming to participate in any bid, auction, concession or any similar transaction, whether public or private, in any sector;
| (xxvi) | initiate, file, or otherwise pursue any claim, proceeding or request for economic or financial rebalance (reequilíbrio econômico-financeiro) or equivalent remedy under any Concession Agreement with any Governmental Authority, except as permitted under “Exhibit 6.6(i)”; and |
| (xxvii) | any promise or commitment to perform any of the acts set forth under this Section 6.6. |
6.6.1Notwithstanding the above, with respect to the Subsidiaries not Controlled by the Company or that the Company, directly or indirectly, does not hold the required voting quorum for approval of a specific matter, in case the Seller, directly or indirectly, exercises its voting rights in relation to such Subsidiaries as to cause them to refrain from performing or executing any of the acts listed in Section 6.6 above but, notwithstanding such vote, the Subsidiary does not refrain from performing such acts, this shall not be considered a breach of Seller’s obligations under this Agreement.
6.6.2Approval by Purchaser. In case the Seller request Purchaser’s approval for any of the acts set forth in Section 6.6, Purchaser shall respond by e-mail, within five (5) Business Days as of the receipt by the Purchaser of the written request by e-mail by the Seller. This consent may not be denied, delayed or conditioned without reasonable motive. If Purchaser fails to answer within the abovementioned period, the matter will be deemed tacitly approved for all purposes of this Agreement.
6.7Obligation to Inform. Through the meetings of the Integration Committee, Seller shall keep Purchaser informed regarding any event or circumstance that resulted or could reasonably be expected to result in (i) a breach of any of the Fundamental Representations made by the Seller under Chapter 9 below, (ii) a material breach of any of the other representations and warranties made by the Seller under Chapter 9 below, (iii) any breach of the covenants set forth in Section 6.6, and/or (iv) a Material Adverse Effect.
6.8Payment of Dividends or Interest on Net Equity. No provision of Section 6.6 shall restrict the capacity of Seller or of the Target Companies to approve any statement and/or payment of dividends, interest on net equity or any other distribution over the account of accrued profits or current profits in accordance with Applicable Law (subject to the applicable Price Adjustment).
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6.9Existing Financing Arrangements. The Seller and/or the Target Companies may take any and all actions necessary to obtain a waiver, or to eliminate the need for a waiver, under the existing debt instruments listed in “Exhibit 6.1(iv)” and “Exhibit 6.3(iv)”, provided that the following conditions are met: (a) the terms of the financing, including any and all fees, premiums, penalties, costs, shall be reflected in the Price Adjustment, (b) such actions do not result in any material additional non-monetary burden for the Purchaser and/or the Target Companies; and (c) such actions do not result in a material change to the financial structure, indebtedness profile or operating conditions of the Target Companies. Subject to the foregoing, such actions may include early payment, redemption or refinancing of such existing debt instruments on comparable or more favorable terms (including maturity, interest rate, and covenants) to the Target Companies.
6.10Access to Information and Interactions. As part of the transition process, after all Antitrust Approvals have been obtained, the Parties shall establish an integration committee to oversee and supervise the smooth transition of the Target Companies’ operations into the Purchaser’s operations, ensuring effective integration and a seamless process (“Integration Committee”). The Integration Committee shall be composed of an equal number of representatives of the Purchaser and the Seller, to be agreed between the Parties between a total of 8 and 18 representatives. The representatives of the Seller shall have sufficient knowledge of the Target Companies’ operations, and each representative shall have sufficient expertise in its respective field.
6.10.1The Integration Committee shall convene its first meeting within fifteen (15) days following the issuance of corresponding authorization from all applicable Antitrust Authorities, as required for the Transaction. Subsequent meetings of the Integration Committee shall occur on a bi-weekly basis following the first meeting, or as otherwise mutually agreed by the Parties, to ensure the smooth integration of the Target Companies with the Purchaser’s operations. The Integration Committee shall be in place, and its meetings shall occur until the Target Companies (and their respective data, systems and other commingling) have been fully segregated from the Seller’s group.
6.10.2The Purchaser’s representatives may request, and the Seller shall provide no later than fifteen (15) days following such request information regarding the operations of the Target Companies that is reasonably necessary for the preparation and planning of the integration process. Any such information shall be provided with the purpose specified in Section 6.10.5 below.
6.10.3The members of the Integration Committee shall be bound by the confidentiality obligations set forth in Section 10.1, and any and all verbal or written information shared during these interactions shall be treated as Confidential Information for all purposes under this Agreement.
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6.10.4All written information provided to the Integration Committee shall be made available via a secure data room. Access to the data room shall be limited to the members of the Integration Committee and to any other members of the Purchaser’s team and/or its representatives, services providers and advisers, as may be requested by the Purchaser. The Seller shall not unreasonably withhold consent to such access but may impose reasonable restrictions to protect confidentiality or business interests (provided that the number of persons shall not by itself be a reasonable restriction).
6.10.5For clarity, any and all information made available in the data room or during the meetings of the Integration Committee shall be provided exclusively for the purpose of integration preparation (and not as further due diligence or investigation) and shall be treated for informational purposes only, and shall not be construed as forming the basis of any opinion, recommendation, or guarantee regarding the Target Companies’ operations or the Transaction.
6.11Mandatory CAPEX. The Seller undertakes to (and to cause the Target Companies to) disburse, prior to the Closing Date, all capital expenditures (CAPEX) in connection with each Target Company to the extent necessary to comply with the obligations set forth under the respective Concession Agreements or Applicable Law, provided that, such CAPEX shall be funded with available cash and/or third party funds, under market conditions and, if necessary, through Eligible Contributions.
CHAPTER 7.CLOSING
7.1Closing Notice. If and when the Conditions Precedent are complied with and verified (or duly waived pursuant to this Agreement, as the case may be), either the Seller, on one side, or Purchaser, on the other side, shall deliver a notice to the other Party informing that such Conditions Precedent were fully complied with and verified (or waived, as the case may be) (“Closing Notice”).
7.2Closing. The actual conclusion of the Transaction (“Closing”) shall occur up to 10th Business Day after a valid Closing Notice has been delivered confirming the satisfaction (or waiver, as the case may be) of the Conditions Precedent (“Closing Date”).
7.3Closing Acts. At the Closing, the Parties shall perform and ensure that the following acts are performed in connection with the Transaction:
(i) |
delivery, by Seller to Purchaser, of a written statement attesting that the applicable Parties’ Conditions and Purchaser’s Conditions have been fulfilled (other than those that may have been duly waived as provided in |
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this Agreement);
| (ii) | delivery, by Purchaser to Seller, of a written statement attesting that the applicable Parties’ Conditions and Seller’s Conditions have been fulfilled (other than those that may have been duly waived as provided in this Agreement); |
| (iii) | Purchaser shall pay the Purchase Price pursuant to Section 3.2; |
| (iv) | Purchaser and Seller shall execute, and shall cause the Company to execute, as applicable, all documents necessary to formalize the transfer and assignment of all Shares to Purchaser, including the annotations in the Company’s share transfer book and share register book; |
| (v) | Seller shall present and deliver a letter of resignation and reciprocal release of certain executive officers appointed by the Seller in the Target Companies who are listed in, and substantially in the form of, “Exhibit 7.3(v)”; and |
| (vi) | The closing of the Tag Along Right, if the Tag Along Right is exercised, provided that breach by any party to the Draft Tag SPA shall not prevent the Parties to perform the other Closing Acts under this Section 7.3, with due regard to Section 5.3.2. |
7.4Simultaneous Acts at Closing. All acts and events set forth in this Chapter 7 shall be deemed simultaneously performed with respect to the Closing, so that the failure in concluding any of these acts shall result in the inefficacy of all other acts, it being agreed that, in this event, the Parties shall execute any and all documents to revert the practiced act to its former condition (status quo ante). The Parties further agree that no Closing act or event will be deemed valid until all Conditions Precedent are complied with (or otherwise validly waived).
7.5Further Assurances. At and after the Closing, the Parties shall execute and deliver any deeds, bills of sale, assignments or assurances and to take and do, any other actions and things to vest, perfect or confirm the actions carried out at such Closing, including (i) any actions to register on behalf of Purchaser of any and all rights, title and interest in relation to the Shares and (ii) Purchaser undertakes to perform all acts that may be required to communicate and give full effect to replacing the officers of the Company that may have resigned their positions at Closing before any Third Parties and Governmental Authorities.
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CHAPTER 8.REPRESENTATIONS AND WARRANTIES BY PURCHASER
8.1Representations and warranties related to Purchaser. Purchaser hereby grants to Seller the representations and warranties described below, which are true, correct and complete on the date hereof and shall remain true, correct and complete on the Closing Date (except for those representations and warranties relating to a specific date, which shall remain true, correct and complete in all of their material respects on such date).
8.1.1Organization and Status. Purchaser is a company duly incorporated and validly existing under the Laws of Mexico.
8.1.2Authority. (a) Purchaser has the powers and the authority required to enter into this Agreement, perform the acts set forth herein and comply with all obligations undertaken hereunder, and there is no legal or contractual impediment in relation to Purchaser regarding the performance of the acts set forth herein. (b) This Agreement was, and all other instruments related to it, upon their execution, shall have been duly executed and delivered by Purchaser (assuming due authorization, signature and delivery by Seller and by the other Parties herein). (c) This Agreement constitutes, and, upon its execution, all other documents related to it shall constitute valid and legal obligations, binding the Purchaser and being enforceable against it. (d) There is no Claim or Governmental Order in force or pending or, to Purchaser’s knowledge, threatened against Purchaser and/or any of its respective Affiliates that, if adversely decided, (i) prevents, challenges, restricts or delays the consummation of the Transaction, or (ii) otherwise prevents, challenges, restricts or delays the compliance, by Purchaser, with any of its obligations set forth in this Agreement. The foregoing shall be, where applicable, subject to the confirmation (ratificación) of the Transaction by the general shareholders’ meeting of Grupo Aeroportuario del Sureste, S.A.B de C.V.
8.1.3No Conflict. Subject to the Conditions Precedent, the execution, delivery and performance of this Agreement and all other documents related to it by Purchaser, and the transfer of the Shares to Purchaser, shall not result in a breach of, or conflict with: (i) any provisions of Purchaser’s incorporation documents or any resolution adopted by their respective shareholders, quotaholders, partners, directors, officers or managers; or (ii) any Applicable Laws to which Purchaser is subject to. The foregoing shall be, where applicable, subject to the confirmation (ratificación) of the Transaction by the general shareholders’ meeting of Grupo Aeroportuario del Sureste, S.A.B de C.V.
8.1.4Approvals and Consents. Except for the Antitrust Approval and the Concession Approvals and the general shareholders’ meeting of the Purchaser that shall confirm (ratificar) the Transaction, no other consent, approval, authorization, license, permit, protocol or notification from or to any Person (including any Governmental Authority), is necessary or required for Purchaser to enter into and comply with this Agreement and with the obligations established herein.
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8.1.5Claims. There are no Claims pending or, to Purchaser’s knowledge, threatened against Purchaser and/or its Affiliates that, if adversely decided, prevents, challenges, restrict or delays the transactions under this Agreement from being concluded or prevents the capacity of Purchaser to timely comply with its obligations pursuant to this Agreement.
8.1.6Financial Capacity. Purchaser is solvent and has full financial capacity to perform all acts and make all payments undertaken under this Agreement.
8.1.7Sophisticated Party. Purchaser is a sophisticated and informed Person, and has engaged advisors during the negotiations and drafting of this Agreement. Purchaser represents that it has read and understood the provisions of this Agreement and acknowledges that it is fully aware of the terms and conditions set forth herein, and the risks and implications of the transactions, rights and obligations arising hereunder. Purchaser acknowledges that the Target Companies, Seller and their Affiliates do not grant any representations or warranties regarding (i) any projections, estimates or budgets delivered or made available to Purchaser concerning future positions of revenues, sales, operational results, cash flows or financial situation or future businesses and operations of the Target Companies; or (ii) any other information or document made available to Purchaser or its advisors regarding the Target Companies or any of their businesses, assets, liabilities or operations, except as expressly set forth in Chapter 9 (including as updated under Section 9.4).
8.1.8Relationship with Governmental Authorities; Anticorruption Laws. Purchaser and its Affiliates, and their Representatives (acting in such capacity) are aware and comply with the Anticorruption Laws and declare that they maintain internal mechanisms and procedures for integrity, auditing, and the encouragement of reporting of irregularities, as well as the effective enforcement of codes of ethics and conduct. Purchaser and its Affiliates, and their Representatives (acting in such capacity) did not directly or indirectly through a Third Party, paid, delivered, offered, authorized or promised money or any other object of value, to any Governmental Authority (including any officer or employee of a government owned or controlled company or of a public international organization) or to any other Person with the purpose of influencing any decision or obtaining or maintaining any benefits on their behalf, in breach of any Applicable Laws. There are no Claims pending (or, to the knowledge of the Purchaser, threatened) in connection with any offense or alleged violations under any Anticorruption Laws by Purchaser and/or its Affiliates.
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To the knowledge of the Purchaser, neither the Purchaser nor its Affiliates are subject to any investigation or inquiry by any Governmental Authority regarding any offense or alleged offense under any Anticorruption Laws.
8.1.9Powers of Signatories. The Persons representing Purchaser in the execution of this Agreement, as well as in the execution of any other instrument related to this Agreement to which Purchaser is (or comes to be) a party, have legal capacity and the sufficient powers required for such.
8.1.10No threshold revenues for antitrust purposes. (i) The Purchaser represents and warrants that the gross turnover of the Purchaser’s economic group, as defined by CADE’s Regulation No. 33/022, as of the calendar year immediately preceding the date as of which this representation is made, has not exceeded the gross turnover threshold of seventy five million Reais (R$ 75,000,000.00) in Brazil (including by means of exports and irrespectively of the place where the relevant entities are headquartered and/or have their offices and branches), as set forth in article 88 of Law No. 12,529/2011, as amended by the Ministerial Decree No. 944/2012. (ii) Neither the Purchaser nor any Person in the Purchaser’s group had revenues exceeding fifteen million Caribbean guilders (XCG 15,000,000) in Curaçao in the calendar year immediately preceding the date as of which this representation is made. (iii) Neither the Purchaser nor any Person in the Purchaser’s group conducted any activities in Costa Rica during the two fiscal years preceding the date as of which this representation is made.
8.1.11Inexistence of Other Representations. Except for the representations and warranties set forth in this Chapter 8, Purchaser does not grant to Seller any other representation or warranty, whether or not express.
CHAPTER 9.REPRESENTATIONS AND WARRANTIES BY SELLER
9.1Representations and Warranties by Seller. Seller hereby grants to Purchaser the representations and warranties described below, which are true, correct and complete on the date hereof, and shall remain true, correct and complete on the Closing Date (except for those representations and warranties relating to a specific date, which shall remain true, correct and complete in all of their material respects on such date).
9.1.1Organization and Status. Seller is a company duly incorporated and validly existing under the Laws of Brazil.
9.1.2Authority. (a) Seller has the powers and the authority required to enter into this Agreement, perform the acts set forth herein and comply with all obligations undertaken hereunder, and there is no legal or contractual impediment in relation to Seller regarding the performance of the acts set forth herein.
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(b) This Agreement was, and all other instruments related to it, upon their execution, shall have been duly executed and delivered by Seller (assuming due authorization signing and delivery by Purchaser and by the other Parties herein). (c) This Agreement constitutes, and, upon its execution, all other instruments related to it shall constitute valid and legal obligations, binding the Seller and being enforceable against it. (d) There is no Claim or Governmental Order in force or pending or, to the knowledge of Seller, threatened against Seller which, if adversely decided, (i) prevents, restricts, challenges or delays the consummation of the Transaction, or (ii) otherwise prevents, challenges, restricts or delays compliance, by Seller, with any of its obligations set forth in this Agreement.
9.1.3No Conflict. Subject to the Conditions Precedent, the execution, delivery and performance of this Agreement and all other documents related to it by Seller, and the transfer of the Shares by Seller to Purchaser, shall not (a) result in a breach of, or conflict with: (i) any provisions of Seller’s incorporation documents or any resolution adopted by their respective shareholders, quotaholders, partners, directors, officers or managers; (ii) any contract, agreement or commitment (either oral or in writing) entered into by Seller and/or its Affiliates, or by which any of them or of their assets are otherwise bound, but only if such contract, agreement or commitment is material or could impair the Seller’s ability to consummate the Transaction as contemplated herein; or (iii) any Applicable Law to which Seller is subject to; and (b) result in the creation of any Liens (other than existing Permitted Liens) on the Shares and/or Equity Interests, as well on any of the Target Companies’ asset.
9.1.4Approvals and Consents. Except for the Conditions Precedent, no other consent, approval, authorization, license, permit, protocol or notification from or to any Person (including any Governmental Authority) is necessary or required for Seller to enter into and comply with this Agreement and with the obligations established herein.
9.1.5Claims. There are no Claims pending or, to Seller’s knowledge, threatened against the Seller, any Target Company and/or their Affiliates that, if adversely decided, prevents, challenges, restricts or delays the transactions under this Agreement from being concluded or prevents the capacity of Seller and the Target Companies to timely comply with their obligations pursuant to this Agreement.
9.1.6Relationship with Governmental Authorities; Anticorruption Laws.
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Except as covered in the leniency agreements entered into with any Governmental Authorities prior to the date hereof, which (i) does not involve directly any of the Target Companies, and (ii) are in full and timely compliance by Seller and its Affiliates, Seller and its Affiliates, and their Representatives (acting in such capacity) did not directly or indirectly through a Third Party, paid, delivered, offered, authorized or promised money or any other object of value, to any Governmental Authority (including any officer or employee of a government owned or controlled company or of a public international organization) or to any other Person with the purpose of influencing any decision or obtaining or maintaining any benefits on their behalf, in breach of any Applicable Laws. Moreover, Seller and its Affiliates, and their Representatives (acting in such capacity) are aware and comply with the Anticorruption Laws and declare that they maintain internal mechanisms and procedures for integrity, auditing, and the encouragement of reporting of irregularities, as well as the effective enforcement of codes of ethics and conduct. There are no Claims pending (or, to the knowledge of the Seller, threatened) in connection with any offense or alleged violations under any Anticorruption Laws by Seller, any of the Target Companies and/or their Affiliates. To the knowledge of the Seller, neither the Seller, the Target Companies nor their Affiliates are subject to any investigation or inquiry by any Governmental Authority regarding any offense or alleged offense under any Anticorruption Laws.
9.1.7Powers of Signatories. The Persons representing Seller in the execution of this Agreement, as well as in the execution of any other instrument related to this Agreement to which the Seller is (or comes to be) a party, have legal capacity and the sufficient powers required for such.
9.1.8Solvency. The Seller is solvent, and the transactions and obligations provided herein do not constitute fraud against execution or fraud against any creditor of the Seller, the Target Companies and/or any of their respective Affiliates. There are no Claims pending in relation to any winding up, dissolution, bankruptcy, judicial or extrajudicial recovery or other insolvency proceedings or any similar legal proceeding against the Seller and/or any Target Company. No order from any Governmental Authority has been issued nor any petition applying for liquidation, bankruptcy or judicial or extrajudicial reorganization (recuperação judicial ou extrajudicial) of the Seller, any of the Target Companies or any of their Affiliates has been filed or granted. No action has been taken to appoint a court administrator or trustee for the Seller, any of the Target Companies or any of Seller’s Affiliates, or for any part of their respective assets.
9.1.9Sophisticated Party. (a) Seller is a sophisticated party and informed Person, and has engaged advisors during the negotiations and drafting of this Agreement. (b) Seller represents that it has read and understood the provisions this Agreement and acknowledges that it is fully aware of the terms and conditions set forth herein, and the risks and implications of the transactions, rights and obligations arising hereunder.
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9.2Representation and Warranties of Seller in relation to the Target Companies. Seller hereby grants to Purchaser the representations and warranties described below, which are true, correct and complete on the date hereof and shall be true, correct and complete on the Closing Date (except for those representations and warranties relating to a specific date, which shall remain true, correct and complete in all of their material respects on such date):
9.2.1Capital Stock. Except as described in “Section 9.2.1” of the Disclosure Letter, the capital stock of each Target Company is, on the date hereof, fully subscribed and paid in. The Shares represent, on the date hereof, and will represent, on the Closing Date, one hundred per cent (100%) of the total and voting capital of the Company, on a fully diluted basis, and the Company and/or the Target Companies are the direct or indirect holder of shares, quotas or other equity security interests representing, on a fully diluted basis, the Equity Interest in each the Target Companies. Except as described in “Section 9.2.1” of the Disclosure Letter, all Shares and Equity Interests (a) were duly authorized and validly issued, (b) were fully paid in, (c) were offered, issued and delivered pursuant to Applicable Law and the organizational documents, (d) all share certificates (if any) representing the Shares and Equity Interest have been validly issued, fully paid and subscribed and delivered in accordance with Applicable Law and the organizational documents, and (e) except as otherwise provided in the Existing Shareholders’ Agreement, are not subject to any Liens (other than Permitted Liens), preemptive rights or any other rights of Third Parties created by any Applicable Law or by any agreement (either written or oral) to which the Seller, any of the Target Companies and/or any of their respective Affiliates are parties of or bound to.
9.2.2Ownership. Seller is, as of the date hereof, and shall remain until the Closing Date, the only lawful and registered owner, on its account, with valid and negotiable title, of one billion, fifteen million, eight hundred fifty-three thousand, six hundred and seven (1,015,853,607) common shares and one billion, fifteen million, eight hundred fifty-three thousand, six hundred and seven (1,015,853,607) preferred shares issued by the Company, all with no par value, fully subscribed and paid in, and free and clear of any Liens (other than Permitted Liens) (“Shares”). The Company is, directly or indirectly, as of the date hereof, and shall remain until the Closing Date, the only lawful and registered owner and holder of all equity and voting stakes indicated in Exhibit A in each of the Target Companies as specified therein (“Equity Interests”), and holds, and shall hold until the Closing Date, valid and negotiable title of all Equity Interests, free and clear from any Liens other than Permitted Liens. Except as described in the “Section 9.2.2” of the Disclosure Letter, there are no other agreements, covenants, undertakings or obligations executed or undertaken by Seller, any of the Target Companies and/or any of their respective Affiliates concerning the direct or indirect sale, purchase, transfer, endorsement, creation of any Lien, exercise of voting rights or assignment, of any of the Shares and/or the Equity Interests, or that affect (or may be reasonably expected to affect) any such Shares and/or Equity Interests in any manner.
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Except as otherwise provided in this Agreement, in the applicable Existing Shareholders’ Agreement and in the “Section 9.2.24(ii)” of the Disclosure Letter, there are no subscription rights, options, conversion rights, repurchase rights, redemption, stock option plans or other equity-based incentive plans, commitments, warrants, subscription warrants (bônus de subscrição), debentures or any other securities convertible into shares or quotas issued by the Target Companies or any similar rights related to any Shares or Equity Interests, that may be exercised by Seller or by any Third Party. The Target Companies have not authorized, issued, offered nor entered into any agreement granting any Third Party any rights or titles and securities, subscription bonus or promissory notes that could, somehow, represent or be converted into their capital stock.
9.2.3Organization and Status. The Target Companies: (a) are duly incorporated and validly existing and in good standing pursuant to each Applicable Law; (b) have the (corporate or of any other nature) power and authority necessary to hold, lease, maintain and use their assets, of any nature, and to conduct their businesses, as and where currently held, maintained, operated or conducted; (c) are not subject to any bankruptcy proceeding or similar proceeding that delay, restricts or prevents the conclusion of the Transaction, or the operation of their businesses as they are currently operated in the ordinary course; and (d) have never carried out any activities that exceed their respective corporate purposes.
9.2.4Bylaws and Articles of Associations. “The organizational documents of each Target Company as provided to the Purchaser in July 2025 are currently in effect. The Target Companies are not in violation of any provisions of their organizational documents.
9.2.5Headquarters and Branches. “Section 9.2.5” of the Disclosure Letter contains a list of all the headquarters, offices, branches and establishments of the Target Companies.
9.2.6Management. “Section 9.2.6” of the Disclosure Letter contains a list of all the directors and officers (administradores) of the Target Companies. All such directors and officers (administradores) were hired or engaged in accordance with the Applicable Law.
9.2.7Authority.(a) The Company has the powers and authority required to enter
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into this Agreement, perform the acts set forth herein and comply with all obligations undertaken herein, and there is no legal or contractual impediment in relation to the Target Companies for the performance of the acts set forth in this Agreement; (b) this Agreement was, and all other instruments related to it, upon execution, will have been duly executed and delivered by the Company (assuming due authorization, execution and delivery by Purchaser and by the other Parties herein); (c) this Agreement constitutes, and, upon its execution, all other documents related to it, shall constitute valid and legal obligations, binding upon the Company and enforceable against the Company; (d) there is no Claim or Governmental Order in force or pending or, to the Seller’s knowledge, threatened against any of the Target Companies and/or any of its respective Affiliates that, if adversely decided, (i) prevents, challenges, restrict or delays the consummation of the Transaction, or (ii) otherwise prevents, challenges, restricts or delays the compliance by the Company with any of its obligations set forth herein.
9.2.8Subsidiaries. Except as described in the “Section 9.2.8” of the Disclosure Letter and for the Target Companies themselves, the Target Companies (a) do not hold, directly or indirectly, any quotas, shares, other securities, or other corporate interest of any kind in the capital stock or any securities convertible into equity interest in any company, nor do the Target Companies hold, directly or indirectly, another patrimonial or non-patrimonial interest in any other Person; and (b) did not undertake any commitment to acquire any equity interest in the capital stock or any bonds and securities convertible into equity interest in any other Person.
9.2.9No Conflict. Subject to the Conditions Precedent, the execution, delivery and performance of this Agreement and all other documents related to it by the Target Companies, and the transfer of the Shares by Seller to Purchaser, shall not (a) result in a breach of, or conflict with: (i) any provision of the Target Companies’ organizational documents or any resolution adopted by their respective shareholders, quotaholders, partners, directors, officers or managers; (ii) any contract, agreement or commitment (either oral or in writing) entered into by any of the Target Companies, or by which any of them or of their assets are otherwise bound; (iii) any Applicable Laws to which the Target Companies are subject to, and/or (b) result in the creation of any Liens on the Shares and/or Equity Interests, as well as on any of the Target Companies’ assets.
9.2.10Approvals and Consents. Except for the approvals and consents described in Sections 5.1 and 5.2, no other consent, approval, authorization, license, permit, protocol or notification from or to any Person (including any Governmental Authority), is necessary or required for the execution and performance by the Target Companies of this Agreement and of the obligations arising from this Agreement.
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9.2.11Powers of the Signatories. The individuals representing the Company in the execution of this Agreement, as well as in each other instruments in relation to this Agreement to which the Company is (or comes to be) a party, have legal capacity and have sufficient powers for such.
9.2.12Main Corporate Books. The Target Companies’ Share Transfer Books (Livros de Transferência de Ações Nominativas) and Share Registry Books (Livros de Registro de Ações Nominativas) are duly registered, in good order complete and updated, with all relevant entries, which accurately reflect the ownership of the Seller, directly or indirectly, over all the Shares and the Equity Interests, as detailed in “Exhibit A”.
9.2.13Other Corporate Books. Except as described in the “Section 9.2.13” of the Disclosure Letter, the other mandatory corporate books of the Target Companies, as required by Applicable Laws, are duly registered, in good order, complete and updated in all material aspects in accordance with Applicable Law.
9.2.14Dividends and Other Pecuniary Advantages. Except as described in the “Section 9.2.14” of the Disclosure Letter, there are no unpaid amounts owed by the Target Companies to the Seller, other former shareholders, quotaholders or partners, Affiliates and/or their respective Related Parties, such as dividends or any other form of distributions to be declared or distributed, and other pecuniary advantages (including interest on capital (juros sobre capital próprio). Except for the Existing Shareholders’ Agreements, the Target Companies are not subject to, or under the effects of any contractual provision, commitment, agreement, or judicial, arbitral or administrative decision or order that imposes any limitation or restriction on approval and/or distribution of dividends, interest on capital, or other amounts to shareholders, or that makes unavailable, freezes or attaches such dividends, interest on capital, or other amounts payable to its shareholders. All previously declared and distributed dividends or other form of distributions or pecuniary advantages (including interest on capital (juros sobre capital próprio)) were properly made in compliance with the Applicable Law and the organizational documents of Target Companies.
9.2.15Financial Information; Books and Registries. “Section 9.2.15” of the Disclosure Letter contains true and complete copies of (i) the unaudited managerial consolidated financial statements of the Company as of December 31st, 2024, (ii) the audited or unaudited, as applicable, financial statements of the Target Companies (except for CCR USA, Inc. and CARE N.V. which are inactive) as of December 31st, 2024; and (iii) the unaudited managerial consolidated balance sheet of the Company with base date of September 30, 2025 (jointly, the “Financial Statements”).
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The Financial Statements: (a) were prepared in accordance with the Applicable Laws, Accounting Principles, accounting books and other records of the Target Companies, and can be properly reconciled with the financial statements and accounting records maintained by the Target Companies for Tax purposes; (b) except for any qualifications in the report issued by the independent auditors, reflect, in all material aspects, in a true, correct and accurate manner, the financial, operational and accounting situation, as well as the assets, properties, contingencies, obligations and liabilities, profits and losses and cash flow of the Target Companies on a consolidated basis on the base periods set out therein, in accordance with the Accounting Principles consistently applied; (c) make proper and adequate provision of all bad debts and for depreciation on fixed assets; (d) do not overstate the value of current or fixed assets in any material aspect; (e) do not understate any liabilities (whether actual or contingent), in any material aspect; and (f) contain either provision adequate to cover, or appropriate particulars in notes of, all Tax (including deferred Tax) and other liabilities (whether quantified, reasonably contingent, disputed or otherwise) of the Target Companies as of the base date. All accruals and reserves shown in the Financial Statements are adequate, pursuant to the Applicable Law and the Accounting Principles, in all material aspects. No notice or allegation that the Target Companies’ records are incorrect or should be rectified has been received by either the Seller or by any of the Target Companies (or is otherwise threatened, to the knowledge of the Seller). The financial statements and the management accounts of each Target Company for the last five (5) fiscal years have been duly approved by the competent corporate bodies in accordance with Applicable Law, and the respective corporate resolutions approving them, where required by Applicable Law, have been duly registered with the competent Governmental Authorities.
9.2.16Accounts Receivable and Accounts Payable. All accounts receivable of the Target Companies are properly reflected in the Financial Statements and represent valid obligations arising from services effectively rendered or transactions effectively consummated and present a level of provision for default consistent with their ordinary course (provided that, in respect of Curaçao Airport Partners N.V., there are auditor comments as disclosed in “Section 9.2.16” of the Disclosure Letter). There are no Claims pending (or, to the knowledge of the Seller, threatened) against any Target Company involving any contestation, claim or right of set-off under any contract with any debtor of accounts receivable with respect to the amount or validity of the relevant account receivable. All accounts payable of the Target Companies are materially reflected in the Financial Statements and represent valid obligations arising from transactions effectively consummated in the ordinary course (provided that, in respect of Curaçao Airport Partners N.V., there are auditor comments as disclosed in “Section 9.2.16” of the Disclosure Letter). All accounts payable of the Target Companies have or will have arisen from bona fide arm’s length transactions in the ordinary course.
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9.2.17Assets. The Target Companies are the lawful owners and possessors of, have the legitimate right over or have acquired the right to use, all the assets used in the conduct of their business, – either real, personal or mixed, tangible or intangible – (including those listed in Financial Statements), all of which are free and clear of all Liens. All the assets owned or used by the Target Companies are in a good state of use, repair, operation and conservation, except for normal wear and tear that is not material in nature or cost and are sufficient for the conduct of the businesses and operations of the Target Companies in accordance with the ordinary course.
9.2.18Guarantees. Except as provided for in the “Section 9.2.18” of the Disclosure Letter, there are no guarantees, security interests, collateral, or letters of credit in effect (or agreement to grant any of the foregoing) that were granted by any of the Target Companies in favor of any Person (including third parties, shareholders, members of management, employees or service providers of the Target Companies, the Seller and/or any of their respective Affiliates and/or Related Parties).
9.2.19Conduct of Business. Except as described in the “Section 9.2.14” and “Section 9.2.19” of the Disclosure Letter, as of September 30, 2025 until the date hereof, the Target Companies (i) have conducted their business in the ordinary course and, during this period, there was no fact that results or that may be reasonably expected to result in a Material Adverse Effect to the Target Companies, (ii) have not contracted or incurred new Indebtedness or contingencies individually or in aggregate in excess of [**] (or its equivalent in local currency per the FX Rate as of the date hereof); (iii) have paid all obligations reflected in the Financial Statements at the proper time; (iv) have made the material investments contemplated for the relevant period, and no investment outside the ordinary course has been approved or implemented, (v) have not declared or distributed dividends (including interim dividends) or other forms of distribution or pecuniary advantages (including interest on capital (juros sobre capital próprio ) to the Seller and/or its Affiliates, except for the Target Companies); (vi) have not created Liens on, transferred or otherwise committed any asset of the Target Companies, nor have acquired assets or entered into any agreement that changes the nature or use of their assets; (vii) have not entered into any agreement between, on one side, one of the Target Companies, and, on the other side, any of their Related Parties; (viii) have not adopted or changed any Tax election, nor have changed any Tax accounting method; (ix) have not revaluated any of their assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable; (x) have not changed the basis of valuation of stocks and work in progress, as well as the rate of depreciation applied in respect of each fixed asset; (xi) have not increased, or promised to increase, the remuneration paid to the Target Companies’ directors, officers, managers, employees or exclusive service providers, or paid, or promised to pay, any bonuses or extraordinary remuneration thereto (except as otherwise required by the Applicable Law and ongoing and ordinary course Target Companies’ remuneration policies); and, (xii) have not issued, or promised to be issued, any securities (either convertible or not into Shares and/or Equity Interests).
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9.2.20Material Agreements. “Section 9.2.20(a)” of the Disclosure Letter contains a list of all Material Agreements in full force and effect to which any of the Target Companies are a party to or by which any of its assets are bound. Each of the Material Agreements was executed in accordance with the Applicable Law, the ordinary course of business of the Target Companies, and is valid, enforceable, and binding on the Target Companies that are parties to it. The Target Companies comply with their respective contractual obligations, pecuniary or otherwise, as set forth in the Material Agreements, in all material aspects. The Target Companies have not sent or received any notice of breach, partial or full termination, or demand for payment of penalties or indemnification under any of the Material Agreements listed in the “Section 9.2.20(a)” of the Disclosure Letter. The Target Companies have not assigned or waived any right under any of the Material Agreements listed in the “Section 9.2.20(a)” of the Disclosure Letter. Except as described in “Section 9.2.20(b)” of the Disclosure Letter, there are no Claims pending (or, to the knowledge of the Seller, threatened) in connection with any of the Material Agreements listed in the “Section 9.2.20(a)” of the Disclosure Letter. Except for the Conditions Precedent, the execution and performance of this Agreement do not (a) result in the acceleration of any obligation under any of the Material Agreements entered into by any of the Target Companies, or in the obligation of the Target Companies to comply with such Material Agreements under more burdensome or less favorable terms, (b) trigger the right of any Third Party to terminate, suspend and/or cancel a Material Agreement; (c) trigger any mandatory payment under a Material Agreement; and/or (d) result in the loss of a right or benefit of any of the Target Companies under a Material Agreement.
9.2.21Real Estate.
| (i) | The Target Companies do not own any real estate properties. |
| (ii) | “Section 9.2.21(ii)” of the Disclosure Letter contains a complete and up-to-date list of all real estate properties occupied or used by the Target Companies, but not owned by them (“Leased Properties”), except for those properties which are occupied by the Target Companies under the terms of the applicable Concession Agreements, including (x) all free leases, leases, |
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sub-leases, occupancy or license agreements (in respect of real property) or any other agreement related to the use of a space, and (y) all real estate areas and facilities used or in the possession by the Target Companies, including, where applicable, the execution date, term, price, complete address, area and owner’s name, to which any Target Company is a party with respect to properties occupied or used by the Target Companies and owned by third parties (“Lease Agreements”). (a) The Lease Agreements are valid, in full force and effect, were entered into in compliance with Applicable Law and are enforceable by the Target Companies in accordance with their terms. Each Target Company has duly performed and is in compliance, in all material respects, with its obligations thereunder, and no change of Control restriction therein would, by reason of the Transaction, entitle the counterparty to terminate any such Lease Agreement or to seek indemnification, penalties or other amounts; (b) the Leased Properties are fully available for the Target Companies’ use and operation, free from adverse possession, wrongful occupation, Liens or other restrictions; and (c) the Leased Properties are not subject to any pending expropriation, eviction, repossession or other compulsory measures.
(iii) |
Except as described in the “Section 9.2.21(iii)” of the Disclosure Letter, all Leased Properties and properties which are occupied by the Target Companies under the terms of the applicable Concession Agreements (“Occupied Properties”, and, together with the Leased Properties, the “Real Estate Properties”): (a) are in good condition for their current use and purpose, except for regular wear and tear; (b) are free from wrongful possession, adverse possession, occupancy or threats of any nature that would affect the respective Target Company’s ability to continue operating in its ordinary course of business (it being certain that their possession is exercised in a lawful, just, peaceful, continuous manner, in good faith and without opposition); (c) do not present condominium agreements or other similar agreements; (d) are not the object, in whole or in part, of any project for expropriation or declaration and public use for purposes of expropriation or temporary occupancy; and (e) to the knowledge of Seller, there have been no facts that would prevent Real Estate Property from being occupied by the Target Companies immediately following the Closing in the same manner as occupied by the Company immediately prior to the Closing. |
(iv) |
Except as provided in the “Section 9.2.23” (Litigation) of the Disclosure Letter, there is no Claim (or, to the knowledge of the Seller, threatened Claim) involving any of the Target Companies and/or the Seller related to any Real Estate Property. |
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(v) |
Unless otherwise set out in “Section 9.2.21(v)” of the Disclosure Letter, all expenses, Taxes, fees, or any other amounts or relevant obligations of the Target Companies, as the case may be, payable until the date hereof, in relation to the ownership and use of the Real Estate Property, have been properly paid and complied with, and shall continue to be, duly paid and complied with until the Closing Date. |
(vi) |
Unless otherwise set out in “Section 9.2.27” (9.2.27 Operational Licenses and Permits) of the Disclosure Letter, all Real Estate Properties maintain and have obtained, in accordance with the Applicable Law, all real estate licenses, permits and authorizations required for their lawful use and operation, including, as applicable, occupancy certificates (Habite-se), Fire Department Inspection Certificates (AVCB), and operation or functioning licenses (or equivalent), which are valid and in full force and effect, and no facts or circumstances exist that would reasonably prevent their renewal or continuation. |
(vii) |
There are no Leases, subleases or loans for use agreement involving any of the Real Estate Properties, except for lease or occupancy agreements where any of the Target Companies have granted the right of use to third parties (the “Airport Third Party Lessees”), in which case each Airport Third Party Lessee has occupied the respective areas in the ordinary course expected from an airport commercial occupant, in compliance with the respective occupancy terms and, to Seller’s knowledge, not creating any material liability to the Target Companies (especially from an environmental or Tax nature), and the Seller and the Target Companies reasonably expect such Airport Third Party Lessees to continue fulfilling the terms of their occupancy agreements in the ordinary course. There are no Claims in which any of the Target Companies is a party or, to the Seller’s knowledge, threatened against the Target Companies, before a court of justice, or any Governmental Authority or arbitration chamber, of any nature, involving the occupation and/or any material payments or fines where the Airport Third Party Lessees are plaintiffs or defendants. |
9.2.22 Taxes.
(i) |
Except if otherwise established in “Section 9.2.22(i)” of the Disclosure Letter, the Target Companies, in all material aspects: (a) have paid all Taxes levied on their activities, including with respect to any amounts paid or owed to any employee, independent contractor or creditor thereof, (b) have complied with all of their tax and social security obligations under Applicable Laws, and (c) have presented all tax returns, statements, reports or other documents concerning the determination, assessment or collection of Taxes under Applicable Laws. The |
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Taxes due by the Target Companies (a) have been properly recorded in their respective Financial Statements and have been, and will have been on the Closing Date, fully and timely withheld or paid (or, where the Tax returns have not yet been filed or withholding or payment is not yet due, the Target Companies have made adequate provision for all such Taxes in their respective Financial Statements in accordance with the Applicable Law and the Accounting Principles); and (b) have maintained copies of such Tax returns until the later of the expiration of any applicable statute of limitations for the taxable period of such Tax return or for Tax returns showing a Tax loss carryforward or similar Tax attribute, the taxable period in which such carryforward or attribute is utilized. The Target Companies have not ceased to pay any Taxes due to favorable judicial decisions prior to a final and unappealable decision.
(ii) |
Except as set forth in “Section 9.2.23” (Litigation) of the Disclosure Letter, the Target Companies are not subject to any Claim regarding Taxes, and, to the Seller’s knowledge, there is no audit or investigation proceeding in course, and no notice was received from any Governmental Authority regarding any scheduled inspection or commencement of new proceedings. |
(iii) |
Except as set forth in “Section 9.2.22(iii)” of the Disclosure Letter, the Target Companies have not (a) entered into any agreements with Tax Governmental Authorities for the payment of late Taxes and/or any Tax installment program, (b) benefitted from any Tax amnesty or Tax rulings before any Governmental Authority, and (c) been beneficiaries under any Tax benefit program or entitled to any special Tax regime. |
9.2.23 Litigation. Except if otherwise set forth in “Section 9.2.23” of the Disclosure Letter, there are no Claims in which any of the Target Companies is a party or, to the Seller’s knowledge, threatened against the Target Companies, before a court of justice, or any Governmental Authority or arbitration chamber, of any nature, including those involving labor, Tax, civil, real estate, corporate, intellectual property, data privacy, regulatory and compliance aspects that may represent possible disbursements, by the Target Companies, in favor of the respective plaintiff, involving amounts that, individually (or in the aggregate in relation to related matters), exceeds one hundred thousand Reais (R$ 100,000.00) (or its equivalent in local currency per the FX Rate as of the date hereof).
9.2.24 Benefits to Employees; Labor Litigation; Union Activity.
(i) |
The Target Companies, in all their material aspects, comply with the Applicable Laws governing labor, employment and social security practices, Taxes or employer charges in general, including all applicable Laws relating to wages, workday, overtime, compensation of hours worked, |
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night shifts, intervals, collective bargaining conventions and agreements, severance guarantee fund (Fundo de Garantia por Tempo de Serviço – FGTS), the National Social Security Institute (Instituto Nacional de Seguridade Social – INSS), termination fees, employment discrimination, civil rights, immigration control, employee classification, safety and health rules and respective allowances, vacation payments, 13th salaries (Christmas bonus), workers’ compensation, pay equity, profit sharing obligations, variable remuneration, benefit plans in general, information privacy and security, and have registered all their employees in accordance with the Applicable Law. The Brazilian Target Companies have made full contributions to the FGTS and the INSS with respect to all their employees and their former employees.
(ii) |
Except as disclosed in “Section 9.2.24(ii)” of the Disclosure Letter, there is no relevant contract or other agreement with current or former employees, directors and/or officers of the Target Companies, that contains provisions of an exceptional nature or that allows a prior notice period and/or a payment due to redundancy. Except as disclosed in “Section 9.2.24(ii)” of the Disclosure Letter, there is no stock option plan (or similar incentive) binding any of the Target Companies. |
(iii) |
Except as disclosed in “Section 9.2.24(iii)” of the Disclosure Letter, there is no extraordinary compensation or special benefits, either written or oral, for payment of bonuses, variable or deferred compensation, golden parachutes, shares in profit or income, subscription or acquisition of interest, quota purchase option plans, bonuses or other similar plans, due by the Target Companies to any of their current or former employee, agent, officer, director and/or manager, including as a result of, or related to, the Transaction. |
(iv) |
“Section 9.2.24(iv)” of the Disclosure Letter contains a complete list in all material aspects of the benefit plans currently in force that are offered by the Target Companies to their employees, whether they are formerly registered or not. |
(v) |
Except as set forth in “Section 9.2.23” (Litigation) of the Disclosure Letter, there is no Claim pending or that, to the Seller’s knowledge, are threatened against the Target Companies due to any labor or social security matters, including those involving discussions on any employment agreement, service agreement, or contract of enterprise in which employees, former employees, or third parties seek the recognition of an employment relationship, or the payment of any remuneration, including vacation pay, overtime, hazardous conditions premium or unhealthy conditions premium, |
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that may represent a potential disbursement, individually or in aggregate with the related matters, exceeding [**] (or its equivalent in local currency per the FX Rate as of the date hereof). No audit or other examination of any labor, employment and social security practices, Taxes or employer charges in general of Target Companies has ever been conducted and none are presently in progress to the knowledge of the Seller, nor have the Target Companies been notified of any request for such an audit or other examination, in each case, that has not been completed or otherwise resolved.
(vi) |
“Section 9.2.24(vi)” of the Disclosure Letter contains a complete and updated list of the collective bargaining agreements and of the collective conventions applicable to the employees of the Target Companies. The Target Companies duly complied with such agreements and conventions in all their material aspects. |
(vii) |
To the Sellers’ knowledge, there are no strikes, slowdowns or picketing that affect the Target Companies, and there are no labor disputes between any of the Target Companies and any union or labor organization. |
(viii) |
The Target Companies do not have any liability (other than subsidiary liability attaching under applicable Brazilian laws) regarding labor and employment matters of any Person as a result of any outsourcing (terceirização) or assignment of manpower, in respect of which the Target Companies have fulfilled applicable requisites under labor laws to avoid joint and several or direct liability. The Target Companies do not have contracts with any cooperatives. |
9.2.25 Transactions with Related Parties. Except if otherwise disclosed in “Section 9.2.25” of the Disclosure Letter, there is no contract, agreement or Indebtedness between the Target Companies, on one side, and Seller, any of its Affiliates (excluding the Target Companies), and/or any of its Related Parties, on the other side.
9.2.26 Environmental Matters. Except as otherwise disclosed in “Section 9.2.26” and “Section 9.2.23” (Litigation) of the Disclosure Letter: (a) the Target Companies has always complied, in all material aspects, with the environmental Laws; (b) to Seller’s knowledge, none of the Target Companies has, or operates on or with, any immovable property that is contaminated with any substance subject to any Environmental Law; (c) none of the Target Companies is liable under any Environmental Law for any contamination of, or disposal of waste on, land owned by third parties; (d) there are no Claims pending, or, to the Seller’s knowledge, involving alleged violations of Environmental Law by any of the Target Companies; and (e) there are no Claims or governmental audits or investigations concerning or against any of the Target Companies resulting from, or related to, any environmental matter in any court or tribunal or Governmental Authority.
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9.2.27 Operational Licenses and Permits. Except as set forth under “Section 9.2.27” of the Disclosure Letter, the Target Companies maintain and are in compliance, in all material aspects with all Licenses required for the conduct of its businesses in the ordinary course, and such Licenses are in full force and effect. Except as set forth under “Section 9.2.27” of the Disclosure Letter, there are no Claims, requirements or clarification requests concerning the Target Companies, on one side, and any Governmental Authority, on the other side, that (a) may result in the suspension, cancellation or revocation of any Licenses, nor in the impossibility or hinder the extension of Licenses; (b) may result in the imposition of material fines, sanctions, penalties, damages, losses or contributions related to obtaining or extending the Licenses; and/or (c) relate to the lack, insufficiency or need of any Licenses before any Governmental Authority. The implementation of the Transaction shall not cause any breach or result in the cancelation, revocation, modification or termination of any License.
9.2.28 Intellectual Property. “Section 9.2.28” of the Disclosure Letter contains a complete and updated list of all registered Intellectual Property owned, licensed or used by the Target Companies, to which the Target Companies are the lawful and undisputed owner, licensee or sublicensee. The Intellectual Property rights of the Target Companies are valid and enforceable, and the Target Companies hold the Intellectual Property rights free and clear from any Liens. The Target Companies have taken all necessary measures for the acquisition and maintenance of the ownership and/or property of its respective Intellectual Property, having performed and paid all registrations, maintenance and renewal fees related to its respective Intellectual Property, and filed all necessary documents, registrations and certifications related to its respective Intellectual Property. There are no royalties, fees or other payments to be made by the Target Companies to any third party by virtue of the ownership, development, use, license, sale or disposition of its respective Intellectual Property. There are no Claims pending (or, to the knowledge of the Seller, threatened) in connection with any of the Target Companies Intellectual Property, including those challenging its validity, ownership, exclusivity, distinctiveness, use or commercial exploitation. To the knowledge of the Seller, none of the Target Companies infringes, expropriates, unduly uses, misappropriates or violates any Intellectual Property owned by any third-party, and there is no Claim pending (or, to the knowledge of the Seller, threatened) in that regard.
9.2.29 Privacy and Data Protection. The Target Companies comply, in all material aspects, with all Applicable Laws relating to privacy and data protection, including Law No, 13,709/2018 (Lei Geral de Proteção de Dados Pessoais – “LGPD”), Law No.
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12,965/2014 (Marco Civil da Internet), Law No. 8,078/1990 (Código de Defesa do Consumidor) and the regulations issued by the National Data Protection Authority. The Target Companies have made all disclosures to, and obtained consents from, users of its services, customers, employees, and Governmental Authorities, required by Applicable Laws. Except as provided in the “Section 9.2.29” of the Disclosure Letter, to the knowledge of the Seller, there was no loss, theft, unauthorized disclosure or unauthorized access to any Personal Data used or processed by the Target Companies or on their behalf. There has not been, nor there is, on the date hereof, any requests from data subjects, including requests for access, rectification, exclusion, revocation of consent, or exercise of the other data subjects’ rights provided for in the LGPD, which unjustifiably has not been complied with by the Target Companies. The Target Companies have implemented and maintain appropriate measures designed to safeguard the Personal Data against unauthorized or accidental access, destruction, loss, alteration, disclosure, or any form of unlawful, inadequate or improper processing. To the knowledge of the Seller, all third-party data databases purchased by the Target Companies were acquired in accordance with the applicable Laws in all material aspects. The Target Companies have neither sold their own databases nor granted unrestricted access to their databases in a manner that could compromise their integrity, authenticity or confidentiality or that could otherwise infringe the Applicable Laws. There are no Claims pending (or, to the knowledge of the Seller, threatened) in connection with any alleged violations of the applicable privacy and data protection Laws by any of the Target Companies.
9.2.30 IT Systems. Except for the IT systems used as described in “Exhibit 10.9” (the “CSC Systems”), all data and information related to the Target Companies, their respective businesses and activities, necessary and/or used by the Target Companies in the conduct of their businesses and activities are owned exclusively by the Target Companies and are properly stored, directly or indirectly, by the Target Companies, on data storage servers, to which the Target Companies have full access. There has been no material performance failure on any data storage server, hardware, network, software, database, telecommunications system, website, IP address, interface and related systems (collectively, “IT Systems”) that has affected any of the Target Companies’ businesses or activities or that has resulted in a breach of the confidentiality, integrity and availability of the IT Systems. Except as provided for in “Section 9.2.29” (LGPD) of the Disclosure Letter, to the knowledge of the Seller, there have been no unauthorized intrusions or breaches of such IT Systems, nor any loss of its data, even if incidentally. For the avoidance of doubt, nothing in this Section 9.2.30 shall be construed as a representation regarding title to, or exclusive control over, the CSC Systems.
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9.2.31 Insurance. “Section 9.2.31” of the Disclosure Letter contains a complete and updated list of all insurance policies related to the Target Companies and their assets which (a) are in full force and effect in accordance with their terms and conditions; and (b) are sufficient to meet all material legal requirements for the operations of the Target Companies in accordance with the Material Agreements and the Applicable Law. The Target Companies timely paid all premiums of such policies by their respective due dates and, to the Seller’s knowledge, there is no circumstance that may cause any insurance policy to be cancelled or terminated or cause the annulment of the liability of the insurance company, under the terms of such policies. There are no insurance policies maintained by any of the Target Companies that benefit any other Person than the respective Target Company. Except as indicated in the “Section 9.2.31(ii)” of the Disclosure Letter, there are no pending Claims against the Target Companies under said insurance policies, and, to the Seller’s knowledge, there is no circumstance that would probably give rise to a Claim.
9.2.32 Relationship with the Government; Anticorruption Laws. Except as covered in any leniency agreements entered into with Governmental Authorities prior to the date hereof and judicial and administrative proceedings that are of public knowledge and available in the Seller’s Reference Form as of the date of execution hereof, which (a) does not involve directly any of the Target Companies, and (b) are in full and timely compliance by Seller and its Affiliates, the Target Companies and their Representatives (acting in such capacity) did not, directly or indirectly through a Third Party, paid, delivered, offered, authorized or promised money or any other object of value, to any Governmental Authority (including any officer or employee of a government owned or controlled company or of a public international organization) or to any other Person with the purpose of influencing any decision or obtaining or maintaining any benefits on their behalf, in breach of any Applicable Laws. Moreover, the Target Companies Purchaser and their Representatives (acting in such capacity) are aware and comply with the Anticorruption Laws and declare that they maintain internal mechanisms and procedures for integrity, auditing, and the encouragement of reporting of irregularities, as well as the effective enforcement of codes of ethics and conduct. There are no Claims pending (or, to the knowledge of the Seller, threatened) in connection with any offense or alleged violations under any Anticorruption Laws by any of the Target Companies, except for judicial and administrative proceedings of public knowledge and available in the Seller’s Reference Form as of the date of execution hereof. To the knowledge of the Seller, the Target Companies are not subject to any investigation or inquiry by any Governmental Authority regarding any offense or alleged offense under any Anticorruption Laws.
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9.2.33 Concession Agreements. (i) The Concession Agreements are valid, in full force and effect, and are enforceable against and by the relevant Subsidiary in accordance with Applicable Law. (ii) Except as disclosed in “Section 9.2.33(ii)” of the Disclosure Letter, the Target Companies are and have always been, and will have been on the Closing Date, materially complying with all obligations set forth in the Concession Agreements, including the obligations to make the required capital contributions as established in the relevant Concession Agreements. (iii) None of the Target Companies nor the Seller is in breach or default under any Concession Agreement that has resulted (or reasonably would be expected to result) in the termination of the relevant Concession Agreement. (iv) Except as disclosed in “Section 9.2.33(ii)” of the Disclosure Letter, none of the Target Companies nor the Seller is in breach or default under any Concession Agreement that has resulted (or reasonably would be expected to result) in the imposition of contractual penalties, individually or in the aggregate with related matters, exceeding [**] (or its equivalent in local currency per the FX Rate as of the date hereof). (v) To the Seller’s knowledge, the bidding process through which the concession was granted under the terms of the Concession Agreement, including any amendments executed up to the present date, has complied and complies in all respects with Applicable Law and is therefore considered, for all purposes, a valid process. (vi) Subject to obtaining the Concession Approvals, the consummation of the Transaction shall not violate or result in a breach of any of the Concession Agreements. (vii) Except as disclosed in “Section 9.2.33(vii)” of the Disclosure Letter, there are no Claims pending (or, to the knowledge of the Seller and/or the Target Companies, threatened) involving any of the Target Companies and the Concession Agreements.
9.2.34 Power of Attorney. “Section of 9.2.34” of the Disclosure Letter contains a list of all powers-of-attorney granted by the Target Companies, except for ad judicia. To Seller’s knowledge, there has been no fraudulent or unlawful use of any of the powers of attorney granted by the Target Companies.
9.2.35 Bank Accounts. “Section of 9.2.35” the Disclosure Letter contains a complete list of all the accounts, deposit contracts, loan contracts, savings accounts, and investment accounts of the Target Companies.
9.2.36 Brokerage Fees and Commissions. There is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of the Target Companies who would be entitled to any fee, rate, premium or commission from any of the Target Companies in connection with the transactions contemplated by this Agreement.
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9.2.37 No threshold revenues for antitrust purposes. None of the Target Companies (other than Curaçao Airport Partners N.V.) had revenues exceeding fifteen million Caribbean guilders (XCG 15,000,000) in Curaçao in the calendar year immediately preceding the date as of which this representation is made.
9.3No other Representation. Except as set forth in Sections 9.1 and 9.2, neither the Seller nor the Target Companies or any of their Representatives, has made, nor is making, any representations or warranties whatsoever with respect to the Target Companies, their respective assets, liabilities, operations, employees and equity holders, any ancillary documents or any of the transactions contemplated hereby or thereby, or any information disclosed to the Purchaser by or on behalf of the Target Companies, including confidential information or any other similar documentation in connection with the transactions contemplated by this Agreement or any ancillary documents.
9.4Disclosure Letter Update. To the extent that any subsequent new fact or circumstance arises after the date hereof, and prior to the Closing Date, that results in a change to the respective representation and warranty or any Section of the Disclosure Letter or the inclusion of a new Section of the Disclosure Letter (if originally there was no Section), Seller shall have the right and obligation to update its respective representations and warranties under this Chapter 9 (in accordance with their own terms, i.e. with or without the applicable knowledge or materiality qualifiers contained therein) and the respective Sections of the Disclosure Letter, so that they are true, correct and complete on the Closing Date for all purposes of this Agreement, except if and to the extent any such update (i) affects a Fundamental Representation or (ii) represents a Material Adverse Effect or (iii) refers to facts or actions prior to two (2) days before signing. For avoidance of doubt, Seller’s right and obligation to update the Disclosure Letter under the terms of this Section shall not limit or prejudice Purchaser’s indemnification rights under this Agreement.
CHAPTER 10. ANCILLARY OBLIGATIONS
10.1Confidentiality. The Parties agree that, for a period of five (5) years as of the date hereof, they (on their own behalf and on behalf of its Affiliates and Representatives) shall maintain as confidential the existence and the terms of this Agreement, any other document related to the transactions set forth herein and the negotiations related hereto. In addition, (i) Seller (on its own behalf and on behalf of its Affiliates and Representatives), for a period of five (5) years as of the Closing (if a Closing occurs), and (ii) Purchaser (on its own behalf and on behalf of its Affiliates and Representatives), for a period of five (5) years as of the date hereof (if no Closing occurs), shall maintain under secrecy all Confidential Information related to the other Party, the Target Companies and their businesses and shall not use such information for themselves or to any purposes other than the implementation of the transactions set forth in this Agreement.
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10.1.1 For the purposes of this Agreement, “Confidential Information” means any and all non-public technical and non-technical confidential or proprietary information of the relevant Party (or of any of its Affiliates) or of the Target Companies, as the case may be, including trade secrets, techniques, know-how, processes, equipment, algorithms, software, design details and specifications, financial information, customer lists, customer personal information, business forecasts, sales and marketing plans as well as all notes, analysis, reports, compilations, studies, interpretations, summaries or other documents; and also any information on the terms or negotiation of this Agreement or of the documents mentioned herein.
10.2Notwithstanding the provision above, the limits on disclosure of Confidential Information provided under this Agreement are not applicable when the Confidential information: (a) is in public domain; (b) becomes known to the public after its disclosure to the receiving party, if the receiving party did not have any part in its disclosure to the public; (c) is disclosed in order to ensure the effectiveness of the provisions set forth herein (including the Conditions Precedent and those related to the enforcement of the obligations set forth herein), provided that the Party discloses the minimum necessary for such purposes; (d) is disclosed by reason of compliance with any Applicable Laws or with an order from any Governmental Authority (provided that, in this case, the receiving party promptly sends a written communication to the disclosing party regarding the order it has received, and discloses the minimum necessary to comply with the respective order); and/or (e) is disclosed with the prior written consent of the Party owning such Confidential Information. Upon termination of this Agreement, all documents (including their copies) obtained under this instrument by a Party from any other Party (including the Target Companies) shall be returned to such Party and each of the Parties shall remain unauthorized to use said information obtained under this Agreement in relation to the other Party or the Target Companies for a period of five (5) years as from the termination date. Any violation of this Agreement by the Party may cause irreparable damages to other Party. The Parties agree that the Parties are entitled to appropriate equitable relief (including injunctive relief or specific performance) for any such breach of this Agreement. Such remedies shall not be exclusive nor be in derogation of any other rights or remedies which a Party may have under this Agreement or under statutory or common law. All the Party’s rights and remedies shall be cumulative and may be exercised separately or concurrently, subjecting the Party to the payment of compensation and/or indemnification to the Party that suffers any loss or incurs any liability solely as a result of any of the other Parties’ breach of this Agreement.
10.3Public Announcements. The Parties and each of their respective Affiliates shall not issue, nor cause the disclosure of, any press release or announcement concerning
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this Agreement or the Transaction without the prior written authorization of the other Parties hereof, and this approval shall not be denied or delayed without a reasonable motive, unless if the disclosure is otherwise required by the Applicable Laws or Governmental Authority (including regulations from stock exchanges and securities exchange commissions), in which case a Party may disclose the Transaction to the extent it sends notice to the other Party at least three (3) Business Days before releasing any such disclosure and endeavor commercially reasonable efforts to consider in good faith the reasonable comments of the other Party in such communication or disclosure.
10.3.1 In that context, the Parties acknowledge that one of the Purchaser’s current Affiliates is Grupo Aeroportuario del Sureste, S.A.B. de C.V., a public company, organized and existing under the laws of Mexico, with its headquarters at Bosque de Alisos No. 47A – 4th Floor, Bosque de las Lomas, 05120 Ciudad de México, Mexico, which is listed on the Mexican Stock Exchange (Bolsa Mexicana de Valores - BMV) and on the New York Stock Exchange (NYSE) and will therefore comply with all and any Applicable Law in this regard.
10.3.2 Notwithstanding anything on the contrary provided herein and without prejudice to Section 6.9, the Seller shall be allowed to reach out to creditors of the Target Companies, Governmental Authorities and to the current shareholders of the Target Companies for the sole purpose of informing them of the execution of this Agreement (and not any other purpose or issue concerning the Transaction, other than merely informing of execution hereof).
10.4Replacement of Guarantees. Purchaser shall use its best efforts to obtain the replacement, release or extinguishment of all personal guarantees granted by Seller and/or any of their Affiliates (except the Target Companies), including in the capacity of bona-fide depositary, all of which are listed under “Exhibit 10.4” (“Seller’s Guarantees”), within one hundred and twenty (120) days as from the Closing Date. The Parties shall at all times timely provide each other, as applicable, with any information and documents related to the process for the replacement, release or extinguishment of any of such guarantees, endeavoring their best efforts so that these events occur as soon as possible.
10.4.1 Failure to Replace the Guarantee. From the date hereof and until each of the Seller’s Guarantees has been fully replaced, released or extinguished, the Purchaser shall keep the Seller and its Affiliates fully indemnified and held harmless from and against, and promptly reimburse the Seller for, any and all Losses arising out of or in connection with any Seller’s Guarantee. If any Seller’s Guarantees remain outstanding after the period referred to in Section 10.4 above, then the Purchaser shall be obliged to present to the Seller, no later than ten (10) days after the expiration of the deadline in Section 10.4 above, a bank-issued guarantee by a first-class bank, guaranteeing one hundred percent (100%) of the remaining balance under the relevant agreements related to the Seller’s Guarantees not replaced, released or extinguished, it being certain that such bank-issued guarantee shall remain valid or shall be automatically replaced by new guarantee(s) with the same terms and conditions until the replacement, release or extinguishment of the respective Seller’s Guarantees.
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If Purchaser fails to (i) replace, release or extinguish the Seller’s Guarantees and (ii) provide the bank-issued guarantee by a first-class bank in the terms provided herein, then Purchaser shall pay Seller a weekly-fine of [**] of the amount that remains guaranteed under the respective Seller’s Guarantee without the corresponding bank-issued guarantee, from the expiration of the deadline provided in this Section 10.4.1 until the respective Seller’s Guarantee is fully replaced, released or extinguished; and, until that moment, Purchaser’s obligations shall remain in full force as provided under this Section 10.4.
10.5Non-Solicitation. During the period commencing on the date hereof and ending [**] years as of the Closing Date, the Seller and its Affiliates hereby undertake (a) not to perform, directly, indirectly or through third parties (interposta pessoa), and (b) not to allow any Person at the command or under the guidance of, or financed, or advised by, the Seller or any of its Affiliates and their respective representatives, to perform, directly, indirectly or through third parties (interposta pessoa) any of the following actions:
(i) |
employ, contract, solicit or hire, or promise to employ, contract, solicit or hire officers and/or employees that currently occupy any position as director, officer, manager or similar role in the Target Companies; |
(ii) |
induce or persuade, or attempt to induce or persuade, any supplier and/or service provider not to do business, reduce the volume of business, or to terminate any business relationship with the Purchaser, the Company, its Subsidiaries and/or any of their respective Affiliates; and/or |
(iii) |
assist any other Person to do any of the foregoing. |
10.5.1 The Parties acknowledge that the obligations set forth herein shall not apply in case (i) of a bona fide public employment solicitation made by Seller and its Affiliates which is not targeted to the Persons mentioned above, or (ii) in case it is authorized in writing by Purchaser.
10.6 Non-Compete. To the maximum extent allowed by Applicable Law, the Seller and its Affiliates agree not to, directly, indirectly or through third parties (interposta pessoa), participate (whether as owner, shareholder, quotaholder, investor, partner, operator or otherwise), in any Person (the “Restricted Person”) that, directly or through subsidiaries, operates any airport within the Territory, as from the Closing Date and for a period of five (5) years thereafter; provided that the Seller and/or its Affiliates shall not be in breach of this Section 10.6 if and to the extent that (i) the consolidated revenues derived by the Restricted Person from airport operations represent less than [**] of the aggregate consolidated revenues of the Restricted Person, and (ii) the Seller and its Affiliates have committed not to expand such airport operations which would lead the airport operations to represent more than [**] of the aggregate consolidated annual revenues of the Restricted Person.
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10.7Essential Restrictive Covenants. The Parties expressly recognize and agree that the non-competition and non-solicitation obligations undertaken under the Sections 10.5 and 10.6 were an essential condition and inducement for the Parties to enter into this Agreement; and the Parties expressly agree that the restrictions contemplated herein (and the corresponding penalties provided in Section 10.7.1) are reasonable, in all circumstances, including with respect to the restricted periods and the restricted Territory.
10.7.1 If the obligation provided in Section 10.5 is breached by any person on behalf of which the Seller is obligated, then the Seller shall pay a non-compensatory punitive fine to the Purchaser in an amount equal to [**] the most recent annual gross compensation that the restricted individual, supplier or service provider received in the last twelve (12) complete months prior to the solicitation event, without limitation to the Purchaser’s right to recover additional losses and damages exceeding such penalty.
10.7.2 If the obligation provided in Section 10.6 is breached by any person on behalf of which the Seller is obligated, then the Seller shall pay a non-compensatory punitive fine to the Purchaser in an amount equal to [**] of the Purchase Price, without limitation to the Purchaser’s right to recover additional losses and damages exceeding such penalty.
10.8Severability. Despite the fact that the Parties have expressly agreed that the restrictions contemplated in Sections 10.5 and 10.6 are reasonable, in all circumstances, in case any of such restrictions is considered null or without effect by the respective arbitral tribunal or court having jurisdiction over the matter, but that it would be valid if part of the text were excluded, if the restricted period were reduced or if the restricted businesses or the restricted Territory were less broad, the Parties undertake hereby to amend the relevant Section in order to render full force and effect thereto.
10.9Post-Closing Transition Support. The Seller shall assist the Purchaser during the period commencing on the Closing Date and up to the terms indicated on “Exhibit 10.9.5” (“Transition Period”) to facilitate the seamless continuation of operations related solely to the activities set forth in “Exhibit 10.9” (“Transitional Activities”). Such support shall be consistent with the Seller’s ordinary course of business prior to the Closing Date and shall be limited to those matters reasonably necessary to ensure operational continuity of the Transitional Activities.
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10.9.1 With due regards to Section 10.9.5 below, the Transition Period for each Target Company may be extended for an additional period of up to 12 months or reduced, in either case, upon the Purchaser’s written request with at least thirty (30) days in advance, subject to the Seller’s consent, which shall not be unreasonably withheld, conditioned, or delayed.
10.9.2 During the Transition Period, the Seller shall provide active and reasonable cooperation with the Purchaser and the Target Companies, including by allocating sufficient and qualified human resources — whether internal or outsourced, as reasonably necessary for such purpose — to support the effective and uninterrupted continuation of the operations of the Target Companies. The Seller undertakes to assist the Purchaser with due skill, care, diligence, and professional judgment, and in a timely, efficient and cooperative manner, in a manner consistent with past practice, and without material modification to the operational standards, practices, guidelines and procedures in effect immediately prior to the Closing Date. The Transitional Activities shall be provided with the goal of ensuring the continuity of such activities in substantially the same form, scope and level of diligence as historically performed prior to the Closing Date. Such assistance shall include the delivery of reasonably accurate, complete, and up-to-date information and the active participation of qualified personnel, consistent with the practices and reporting routines in effect prior to the Closing Date. The Seller shall not unreasonably withhold or delay any action, information, or cooperation that is customarily required for the continued performance of the Transitional Activities.
10.9.3 On the other hand, during the Transition Period, the Target Companies shall provide, on a timely basis, the appropriate tools and interface reasonably required by the Seller for the purposes of providing the Transitional Activities, including access to the reasonably required Target Companies’ systems, personnel, information, and network.
10.9.4 A supplemental price shall be due by Purchaser to Seller in the amount of R$ 56,085,748.29 in consideration for the collaboration obligation undertaken by the Seller in relation to the Transitional Activities, assuming the Transition Periods as indicated in “Exhibit 10.9.5” (“Transitional Purchase Price Adjustment”).
10.9.5 If the Purchaser does not require the Seller’s assistance as indicated above for the whole duration of the Transition Periods, the Transitional Purchase Price Adjustment will be reduced in accordance with “Exhibit 10.9.5”. If, on the other hand, Purchaser requires the Seller’s assistance for a period which is longer than the Transition Periods, the Transitional Purchase Price Adjustment will be increased in accordance with “Exhibit 10.9.5”.
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10.9.6 The Transitional Purchase Price Adjustment shall be paid, in immediately available funds, according to the schedule provided under “Exhibit 10.9.6”, and Sections 3.2 to 3.5 shall apply to the Transitional Purchase Price Adjustment, mutatis mutandis.
10.9.7 In connection with the Transitional Activities, the Target Companies’ personnel shall be granted access to those portions of the Seller’s systems that are reasonably necessary for the proper performance of the Transitional Activities. If, at any time, the Seller has evidence that: (a) any personnel of the Target Companies has attempted to violate, circumvent, or has violated or circumvented applicable Laws or the Seller’s information security policies and procedures; (b) unauthorized personnel of the Target Companies have accessed the Seller’s systems; or (c) any personnel of the Target Companies poses a security risk or has engaged in any activity that may result in unauthorized access to, or use, destruction, alteration, or loss of, data, information, or otherwise cause damage or loss to the Seller or its Affiliates, then the Seller shall have the right, at its sole discretion and without prior notice, to immediately suspend, restrict, or terminate such personnel’s access to its systems.
10.9.8 Except as expressly set forth herein, Seller shall have no responsibility for occasional Losses arising from the Transitional Activities, except if such Losses are caused by breach, fraud, gross negligence or willful misconduct. Moreover, for the avoidance of doubt, Seller shall have no liability for acts or omissions or events (i) which fall out of Seller’s and its Affiliate’s control, (ii) resulting from Purchaser’s instructions, policies, systems, or failures to provide timely information or resources necessary for the performance of the Transitional Activities, or (iii) arising from the continuation of operational practices currently in place and adopted by the Seller, in line with the ordinary course.
10.9.9 All personnel assigned by Seller to perform the Transitional Activities shall be construed as being independent from the Target Companies or their Affiliates and shall not be construed as employees of the Target Companies and/or their Affiliates by virtue of the performance of such Transitional Activities. The Transitional Activities do not create a fiduciary relationship, partnership, joint venture or relationships of trust or agency between the Parties.
10.9.10If Seller fails to cure any breach of its obligations under this Section 10.9 within fifteen (15) Business Days after written notice from Purchaser, Purchaser may (i) step in (or appoint a third party) to perform the affected Transitional Activities, at Seller’s cost, and/or (ii) terminate the affected Transitional Activities, without penalty. Seller shall reasonably cooperate with any step-in and promptly provide all access, information, tools and rights required for the continued performance of the affected services.
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Seller shall reimburse Purchaser’s costs of such step-in right.
10.10Segregation Costs. If the engagement of independent third parties is required to provide services related to the segregation of the Target Companies’ activities from those of the Seller (including services related to the segregation of data, systems, and other operational activities) such engagement shall be communicated to and discussed within the Integration Committee. Any costs incurred in connection therewith shall be borne by the Purchaser, either through direct payment to the third parties or by reimbursement to the Seller if such costs are initially paid by the Seller.
10.11Debt Financing Cooperation. From the date of this Agreement until the Closing, Seller and Company shall, and shall cause (or shall, for any Target Company not Controlled solely by the Seller, exercise all its rights and endeavor its best efforts to cause) the Target Companies to, use commercially reasonable efforts to provide such customary cooperation and assistance in connection with the arrangement, implementation or syndication of any debt financing by the Purchaser or any of its Affiliates undertaken in connection with the Transaction (the “Debt Financing”), as may be reasonably requested by Purchaser, including: (i) at reasonable times, locations and intervals to be mutually agreed, and upon reasonable advance notice, arranging the participation of the Company’s officers in customary due diligence sessions and meetings with rating agencies, any lender and any other Persons that provide or commit to provide all or any portion of the Debt Financing (or any refinancing thereof) (any such Persons, together with the Lender and their respective Affiliates, successors and permitted assigns, the “Financing Sources”) (it being understood that any such meeting may take place via videoconference or web conference), (ii) furnishing Purchaser and the Financing Sources with, solely to the extent readily available and not previously directly or indirectly provided to Purchaser, such financial, business and other pertinent information regarding the Target Companies as may be reasonably requested by Purchaser, (iii) cooperating with reasonable due diligence requests from the Financing Sources to the extent customary and reasonable, provided that such requests shall be done exclusively for the purpose of Debt Financing (and not as further due diligence or investigation), and (iv) to the extent requested in writing at least ten (10) Business Days prior to the Closing Date, providing, at least five (5) Business Days prior to the Closing Date, documentation and other information reasonably required, in respect of any member of the Target Companies, by bank regulatory authorities under applicable “Know Your Customer” (KYC) and anti-money laundering Laws; provided that in no event shall Seller or any of its Affiliates or its or their respective directors, officers employees or agents be required to take any action that could reasonably be expected to give rise to personal liability for any such Person. For the avoidance of doubt, none of the foregoing shall be read or construed in a manner to create a Condition Precedent to Closing, which are exhaustively mentioned in Article 6 herein.
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CHAPTER 11. INDEMNIFICATION
11.1Survival Period. The Parties’ obligation to indemnify each other under Sections 11.2 or 11.3, as the case may be, shall survive and remain valid (I) for the relevant statutes of limitation with respect to any Losses arising from or in connection with: (a) any breach, inaccuracy or violation of Fundamental Representations; (b) breach of any obligation assumed by any of the Parties in this Agreement (including those set forth in Sections 10.1 (Confidentiality), 10.4.1 (Failure to Replace Guarantees), 10.5 (Non-Solicitation) and 10.6 (Non-Compete)), (c) eviction of the Shares or any of the Equity Interests as set forth in Section 11.2(iv), and/or (d) fraud, willful misconduct or bad faith; (II) for a period of five (5) years as of the Closing Date, for any Losses arising from or in connection with any breach, inaccuracy or violation of Section 9.2.33 (Concession Agreements) (other than the Fundamental Representations of Section 9.2.33(i), (iii) and (v)); (III) for a period of six (6) years as of the Closing Date, for any Losses arising from or in connection with any Tax matter; (IV) for a period of five (5) years as of the Closing Date for Losses arising from or in connection with any labor and environmental matter; and (V) for a period of three (3) years as of the Closing Date for all other cases. Notwithstanding, the indemnifying obligations of Seller and of Purchaser concerning any Loss in connection with which an Indemnification Notice has been delivered prior to the end of the survival period shall survive until the final resolution of the indemnification in question.
11.2Indemnification by Seller. Subject to the provisions of this Chapter 11, Seller shall indemnify, defend and hold harmless the Purchaser and its Affiliates (including the Target Companies), as well as their respective shareholders, quotaholders, partners, Representatives and each of their corresponding successors and permitted assignees (each, a “Purchaser’s Indemnified Party”), from and against Loss effectively incurred by any Purchaser’s Indemnified Party if and to the extent such Loss results from, without duplication:
(i) |
any breach, inaccuracy or violation of the representations and warranties made pursuant to Chapter 9; |
(ii) |
noncompliance with any obligation undertaken by the Seller in this Agreement; |
(iii) |
any Claims related to any facts, actions or omissions by the Target Companies before consummation of the Closing, even if their effects only occur or materialize after the Closing Date, and even if such liabilities, contingencies and/or obligations are known by the Purchaser or have been disclosed by the Seller; but expressly excluding any Losses in connection with matters that are specifically disclosed by the Seller in the Disclosure |
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Letter as of the date hereof (i.e., excluding any updates under Section 9.4), provided that the Disclosure Letter contain reasonable information about them;
(iv) |
eviction of the Shares or any of the Equity Interests, resulting from any act, fact, event, circumstance or omission of any nature occurred up to (and including) the Closing Date, or referring to the period prior to (and including) the Closing Date, even if their effects only occur or materialize after the Closing Date; |
(v) |
any liabilities or contingencies related to Seller and/or its Affiliates (other than the Target Companies), including those involving labor, Tax, civil, real estate, corporate, intellectual property, data privacy, regulatory and compliance aspects, resulting from any act, fact, event, circumstance or omission of any nature, regardless of the date of their occurrence, materialization of effects or the period to which they relate (on, before or after the Closing Date), which may be claimed from any of Purchaser’s Indemnified Parties as a result of being deemed subsidiarily or jointly or severally liable for such liability or contingency by virtue of the Applicable Law, including any allegations of succession or economic group; |
(vi) |
any other matters that are agreed upon, expressly and in writing, between the Parties; |
(vii) |
any Tax Claims related to any facts, actions or omissions by the Target Companies before consummation of the Closing, even if their effects only occur or materialize after the Closing Date, and even if such liabilities, contingencies and/or obligations are known by the Purchaser or have been disclosed by the Seller, provided that only Losses in excess, in the aggregate, of [**], net of any supervening tax assets effectively recovered with positive cash impact (efeito caixa positivo) should be indemnifiable; and/or |
(viii) |
any of the regulatory special matters listed on the “Exhibit 11.2(viii)” (“Regulatory Special Matters”). |
11.2.1 Seller’s indemnification obligations shall be treated as a negative adjustment to the Purchase Price. In relation to any Loss directly incurred by a Target Company, Seller shall indemnify the Purchaser or the respective Purchaser’s Indemnified Party (as indicated by the Purchaser) proportionally to the equity stake directly or indirectly held by Purchaser in the underlying Target Company at the time the Loss is to be satisfied.
11.2.2 For the avoidance of doubt, and except as provided in Section 11.2(iii)
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above, the right of indemnification of the Purchaser’s Indemnified Parties shall not be limited, impaired or adversely affected in any way (i) by reason of any legal, accounting, financial, technical or other type of due diligence carried out on the Target Companies and/or its respective assets, and/or on the Seller, (ii) by the knowledge, by the Purchaser, at any time, of any fact, act, omission, event or circumstance that may result in an indemnifiable Loss pursuant to Section 11.2, whether or not expressly disclosed by any means (other than as provided in Section 11.2(iii) above), and/or (iii) if any fact, act, omission, event or circumstance that may result in an indemnifiable Loss under Section 11.2 is reflected, in any way and to any extent, in the Financial Statements.
11.3Indemnification by Purchaser. Subject to the provisions of this Chapter 11, Purchaser shall indemnify, defend and hold harmless the Seller and its Affiliates, as well as their respective shareholders, quotaholders, partners, Representatives and each of their corresponding successors and permitted assignees (“Seller’s Indemnified Parties”; provided that the Seller’s Indemnified Parties or the Purchaser’s Indemnified Parties shall be referred as “Indemnified Parties”), from and against any Loss effectively incurred by any of Seller’s Indemnified Party if and to the extent such Loss results from, without duplication:
(i) |
any breach, inaccuracy or violation of the representations and warranties made pursuant to Chapter 8; |
(ii) |
noncompliance with any obligations undertaken by Purchaser in this Agreement; and/or |
(iii) |
any liabilities or contingencies related to Purchaser and/or its Affiliates (including, after the Closing, the Target Companies), including those involving labor, Tax, civil, real estate, corporate, intellectual property, data privacy, regulatory and compliance aspects, resulting from any act, fact, event, circumstance or omission of any nature, regardless of the date of their occurrence, materialization of effects or the period to which they relate (on, before or after the Closing Date), which may be claimed from any of Seller’s Indemnifiable Parties, as a result of being deemed subsidiarily or jointly and severally liable for such liability or contingency by virtue of the Applicable Law, including any allegations of succession or economic group. |
11.4Limitations to the Indemnification Obligation. Except as indicated in Section 11.4(iv), Seller’s obligation to indemnify a Purchaser’s Indemnified Party will be subject to the following rules:
(i) |
Seller shall only be liable to indemnify any Loss incurred by Purchaser’s Indemnified Parties if and when the individual amount of such Loss |
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(together with all Losses related to the same or substantially the same allegations, facts and/or conduct pattern or which are in any way connected) exceeds [**] (“De Minimis”). For the avoidance of doubt, no Loss (together with all Losses related to the same or substantially the same allegations, facts and/or conduct pattern or which are in any way connected) of which the individual amount is lower than De Minimis shall be indemnifiable by Seller pursuant to this Agreement;
(ii) |
Purchaser’s Indemnified Party shall not be entitled to any indemnification until the total amount of Losses incurred by Purchaser’s Indemnified Parties subject to indemnification owed by Seller exceeds [**] (“Basket”). Once the Basket is reached, or on each anniversary of the Closing Date (even if the Basket is not reached within this period), whichever occurs first, Seller shall be liable for the entire amount (from R$ 1.00) counted toward the Basket and not only for the amount that exceeds the Basket. Subsequent Losses shall again be computed toward the Basket, and the mechanism of this Section shall repeatedly apply; |
(iii) |
The indemnification amount that is payable by the Seller under this Chapter 11 shall be limited to an aggregate disbursement of [**] (“Cap”); and |
(iv) |
Notwithstanding the foregoing, any Losses resulting from or in connection with (a) willful misconduct, bad faith or fraud on the part of Seller, its Affiliates and/or their respective Representatives, (b) breach, inaccuracy or violation of Fundamental Representations, (c) breach of covenants (other than a breach of Section 6.7 that does not result from a willful breach or gross negligence, and without prejudice to the other provisions of this Agreement) as set forth in Section 11.2(ii), (d) eviction of the Shares or any of the Equity Interests as set forth in Section 11.2(iv), (e) liabilities or contingencies related to Seller and/or its Affiliates (other than the Target Companies), pursuant to Section 11.2(v), and (f) other matters that the Parties expressly agree to in writing to carve-out from the indemnification limitations provided herein, in the context of Section 11.2(vi), shall not be subject to the limitations set forth in the foregoing Sections, and the Seller shall be fully liable for such Losses. |
11.4.1 FX. For purposes of assessing whether the De Minimis, Basket, Cap, and the amount provided under Section 11.2(vii), have been met for Losses not incurred in the currencies set out above, the amount of the underlying indemnity shall be converted as per the FX Rate valid at the time the indemnification becomes due under this Agreement.
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11.5Indemnification Procedures. In the event (i) any Third Party brings a Claim (a “Third Party Claim”) that may give rise to Losses for which a Party may be liable for indemnification, under this Chapter 11 (in any case, an “Indemnifying Party”), or (ii) any Indemnified Party that has incurred in a Loss that does not involve a Third Party Claim and that is indemnifiable by an Indemnifying Party under the provisions of this Chapter 11 (a “Direct Claim”), then, the Indemnified Party shall send and deliver a written notice to the Indemnifying Party, specifying the nature of such Direct Claim or Third Party Claim and the amount at risk (or, in the event it is not possible to be determined, its best estimate of the amount at risk) of all related Losses (“Indemnification Notice”).
11.6Failure to Deliver an Indemnification Notice. Any Indemnified Party’s failure or delay to deliver an Indemnification Notice shall not release the Indemnifying Party from its indemnification obligations under this Chapter 11 in connection with the relevant Direct Claim or Third Party Claim, except if, and only to the extent that, such failure or delay effectively and adversely affects the Defense of the Third-Party Claim.
11.7Third Party Claims. In the event an Indemnified Party receives or becomes aware of a Third Party Claim, such Indemnified Party shall deliver an Indemnification Notice to the respective Indemnifying Party within ten (10) Business Days from the receipt or awareness of the Third Party Claim or before the course of one third (1/3) of the legal term available to file a defense or appeal against such Third Party Claim, whichever occurs first (“Defense”). Any Indemnification Notice delivered regarding a Third Party Claim shall contain copies of the summons, claim or notice, as applicable, regarding such Third Party Claim, together with all other documents received by the Indemnified Party concerning this Third Party Claim. Subject to Section 11.7.2, upon receipt of an Indemnification Notice, and if the Indemnifying Party wishes to conduct the Defense of the Third Party Claim, the Indemnifying Party may deliver a written notice to the Indemnified Party informing the Indemnified Party of its intention to conduct the Defense of the relevant Third Party Claim, before two thirds (2/3) of the term remaining for the Defense has elapsed or within five (5) Business Days from the receipt of the Indemnification Notice, whichever occurs first. If the Indemnifying Party has timely exercised its right to conduct the Defense of any Third-Party Claim, the Indemnifying Party shall undertake the Defense in good faith, by means of qualified and experienced lawyers of its choice, to prevent any Loss. Notwithstanding the foregoing, the Indemnifying Party acknowledges that in case of urgent matters that require immediate action, the Indemnifying Party shall undertake the Defense in good faith, by means of qualified and experienced lawyers of its choice, to prevent any Loss; in this case, the Indemnified Party shall deliver the appropriate Indemnification Notice as soon as practically possible and in any case within five (5) Business Days after the receipt or awareness of the Third Party Claim.
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11.7.1In case the Indemnifying Party has not opted for conducting the defense of a Third Party Claim (including due to failure of the Indemnifying Party to notice the Indemnified Party on a timely basis regarding its intention), it shall be considered as a waiver of the Indemnifying Party’s right to conduct the Defense of such Third-Party Claim informed on the of the Indemnification Notice, except for the situations described under Section 11.7.2, in which case the Indemnified Party shall have the obligation to, in a diligent and professional manner, conduct and control, by means of qualified and experienced lawyers of its choice, the Defense of such Third Party Claim.
11.7.2Notwithstanding the above, the Purchaser shall have the right to assume, at any time, the conduct of the Defense of any Third Party Claim that: (a) reasonably could adversely affect the image or reputation of any Purchaser’s Indemnified Party (including in case of Third Party Claims involving forced or slave-like labor, child and/or allegations of violations of criminal law, Anti-Corruption Laws and/or environmental Laws); (b) is reasonably likely, if determined adversely to any of the Purchaser’s Indemnified Parties, to result in a material number of similar or repetitive Third-Party Claims based on the same (or substantially the same) issue; or (c) seeks non-monetary relief or measures that could materially interfere with the business, operations or concessions of the Target Companies, including any Third-Party Claim regarding any of the Concession Agreements. In all cases, the Purchaser shall do so in a diligent and professional manner, by means of qualified and experienced lawyers of its choice.
11.7.3Monitoring Rights. Regardless of the Party upon whom the conduct of a Defense is incumbent:
(i) |
the Indemnifying Party shall maintain the Indemnified Party informed regarding the appropriate Third Party Claim through the delivery of quarterly monitoring reports, within no more than fifteen (15) days counted as of the end of each fiscal quarter; |
(ii) |
any Party that is not in charge of the conduct of the Defense shall have the right to take part, at its own expenses and with its own attorney, in the legal advice regarding the Defense of the Third Party Claim; and |
(iii) |
by means of reasonably written request, the Party in charge of conducting the Defense shall provide to the other Party copies of all claims, petitions, decisions, procedural documents, correspondences, and other documents related to the Third-Party Claim. |
11.7.4Costs and Expenses.
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(a)If the Indemnifying Party opts for conducting and controlling the Defense of any Third Party Claim, both existing and future, any costs and expenses incurred with the Defense (including attorney’s fees and court costs) shall be directly borne by the Indemnifying Party.
(b)In those Third Party Claims, in which the Indemnified Party is in charge of conducting the Defense any costs and expenses with the Defense (including costs, attorney’s fees, expenses, court costs and defense expenses) shall be directly borne by the Indemnified Party and charged from the Indemnifying Party towards the Basket.
11.7.5Settlements. In case the Defense of a Third Party Claim is being conducted by the Indemnified Party, the Indemnified Party shall not enter into any agreement, cease-and-desist commitment, settlement or compromise, including under any amnesty or installments program or similar act (“Settlement”), in relation to any Third Party Claim without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld, conditioned or delayed. In case the Defense of the Third Party Claim is being conducted by the Indemnifying Party, the Indemnifying Party shall not enter into any Settlement without the prior written consent of the Indemnified Party which shall not be unreasonably withheld, conditioned or delayed. In relation to Settlements that: (i) grant a full and unconditional release in favor of all Indemnified Parties with respect to the matters at issue; (ii) do not require any admission of wrongdoing or acknowledgment/confession of liability by any Indemnified Party (including adherence to any amnesty, installment or leniency program); (iii) do not impose non-monetary obligations on any Indemnified Party; and (iv) do not expand the scope of the Third Party Claim to unasserted or unassessed matters, in case the Indemnified Party does not grant its prior written consent, the Indemnifying Party shall only be responsible up to the total amount of the Losses that would have resulted from such Third Party Claim if the Settlement had been executed.
11.7.6Purchaser Cooperation on Defenses Conducted by Seller. Whenever Seller is responsible for conducting and controlling a Defense of a Third Party Claim, Purchaser shall reasonably cooperate and cause the Target Companies to reasonably cooperate with Seller by granting access, as soon as reasonably practicable, to records, witnesses, and other information in the Target Companies’ possession that are readily available and reasonably required for preparation of the Defense, and by granting specific powers-of-attorney to the lawyers appointed by Seller for representation in relation to the Third Party Claim.
11.7.7Ongoing Claims. Subject to Section 11.7.2, Seller may choose to conduct the Defense of ongoing Third Party Claims, if any, by notifying the Purchaser in this regard, and identifying each Third Party Claim that it wishes to assume, within thirty (30) days as from the Closing Date.
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In case the Seller has not opted for conducting the defense of any such Third Party Claim (including due to failure to notify the Purchaser on a timely basis regarding its intention), it shall be considered as a waiver of the Seller’s right to conduct the Defense, and Sections 11.7.1 et seq shall apply.
11.8Direct Claims. In order to claim indemnity for any Losses other than arising from a Third Party Claim (each, a “Direct Claim”), the Indemnified Party shall deliver a written notice to the Indemnifying Party which shall contain, in reasonable detail, a description of the Direct Claim, the reference to the provisions of this Agreement pursuant to which such right of indemnification arises, and the value and method for calculating the respective Loss (“Dispute Notice”).
11.8.1The Indemnifying Party may, then, challenge its responsibility for the Loss described in the Dispute Notice within thirty (30) days as from the receipt of the Dispute Notice. In case it fails to contest the Dispute Notice within such term, the Indemnifying Party shall be deemed to have agreed with the Dispute Notice and the indemnifiable Loss shall be considered due.
11.8.2In case the Indemnifying Party timely disputes the matters indicated in the Dispute Notice, the Indemnifying Party and the Indemnifiable Party shall endeavor their best efforts to, within thirty (30) days from the date the Indemnifying Party replied to the Dispute Notice, amicably and in good faith discuss the content of the Dispute Notice aiming to reach an agreement in relation to the matter under dispute. If no amicable settlement is reached within such 30-day period, then either Party may submit the Direct Claim to resolution by arbitration, pursuant to Chapter 13. The Parties agree that the obligation to resolve any disputes amicably is an obligation of means which does not preclude the commencement of an arbitration pursuant to Section 13.3.
11.9Judicial Guarantees and Deposits. In the event a court decision, an injunction, an arbitration award or any other arbitral, administrative or judicial order is issued against an Indemnified Party relating to any Third Party Claim requiring a judicial deposit and/or a guarantee or similar security, the Indemnified Party may, at its sole discretion, advance the payment of such judicial deposit or grant the respective guarantee, and such payment or guarantee will be considered as an indemnifiable Loss hereunder. If, after Closing, the Indemnifying Party makes any judicial deposit and/or places a guarantee, then to the extent that such judicial deposit and/or a guarantee are released and/or reimbursed, the corresponding amounts shall be credited in favor of the Indemnifying Party and counted towards the Basket.
11.10Clearance Certificates (Certidões Negativas) and Judicial Attachment (Bloqueio Judicial).
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If at any time any of the Indemnified Parties is not able to (i) obtain any clearance certificate with any Governmental Authority as a result of a Third Party Claim, or (ii) sell, transfer, dispose, lease, offer in guarantee or use by any means any of their assets or rights, or withdrawal or debit any amount of their bank accounts due to judicial attachment (bloqueio judicial) or other similar restriction in connection with or related to a Third Party Claim, the Indemnified Party may take all necessary measures to issue the clearance certificate or release the judicial attachment, as the case may be, and any payments made in connection therewith will be considered as an indemnifiable Loss. If, after Closing, the Indemnifying Party makes any judicial deposit and/or places a guarantee, then to the extent that such judicial deposit and/or a guarantee are released and/or reimbursed, the corresponding amounts shall be credited in favor of the Indemnifying Party and counted towards the Basket.
11.11Indemnification Payment. Subject to the limitations applicable to the indemnifying obligations of Seller and Purchaser under this Chapter 11, the indemnification obligations of an Indemnifying Party pursuant to this Chapter 11 shall become due and payable upon forty-five (45) days counted as from a notice by the Indemnified Party informing of the occurrence of the following events:
(a)Direct Claims: (i) the conclusion of the procedures of Chapter 13 upon a Dispute whose result deems a Direct Claim due; or (ii) in case the Indemnifying Party agrees with (or fails to contest) its responsibility related to the Loss described in the Dispute Notice pursuant to Section 11.8.1.
(b)Third-Party Claims: (i) the date a judgement, award or final ruling is made final and unappealable, (ii) on the date on which a Settlement has been executed in accordance with Section 11.7.5; or (iii) the disbursement of any amounts in connection with such Third Party Claim, including in case of reimbursement of costs for defense and/or payment of deposits and/or granting of guarantees, in accordance with the terms and conditions set forth in this Chapter 11.
11.11.1Regardless of the currency in which occasional Losses are suffered by the Indemnified Parties, any and all Losses payable by any of the Parties under this Agreement shall be paid in Brazilian Reais (R$) (and Losses not in Brazilian Reais shall converted per the FX Rate as of the indemnification date). In case any of the Purchaser’s Indemnified Parties wishes to have the amount remitted abroad, then any costs and Taxes related to such remittance shall be borne by the Purchaser’s Indemnified Parties (either directly or by the Indemnifying Party deducting such costs and Taxes from the indemnifiable Loss, with due regard to Section 11.18 in respect of any Taxes, costs and expenses other than as specified in this Section 11.11.1).
11.11.2The Indemnifying Party shall pay the Indemnified Party for the indemnification by means of a wire transfer of immediately available funds to the bank accounts informed in writing by the relevant Indemnified Party in the notice sent pursuant to Section 11.1.
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11.11.3All Losses incurred by an Indemnified Party shall be adjusted from the date on which they become due to the date of effective reimbursement or indemnification, in accordance with the Interest Rate during the relevant period, calculated pro rata temporis.
11.12Control Account. Strictly for informational purposes and without any impact on whether any Losses are indemnifiable or not (and their respective amount), the Company shall control and register the Direct Claims and/or Third Party Claims in which the Company or its subsidiaries are involved, by maintaining a special extra-accounting account (“Control Account”), with the record of all Losses in connection with said Direct Claims and Third Party Claims, which shall be registered in the Control Account. On January 31st and July 31st of each year, and while there is a Direct Claim or a Third Party Claim that may result in an indemnifiable Loss, the Company and/or the Purchaser shall notify the Seller to inform the Control Account details, including all entries and net balance thereof. The Control Account and the provisions established herein shall survive until the final settlement of any and all Seller’s indemnification obligation hereunder. The Company shall, during the entire existing period of the Control Account: (i) maintain all related documents in a manner that the files are reasonable and in good standing; and (ii) provide Seller with any reasonable information related to the Control Account, upon a fifteen (15) day prior written notice from Seller to the Company and to the Purchaser.
11.13Third Parties Receipt. For the purposes of the Parties’ respective obligations under this Chapter 11, the following principles shall apply to the calculation of the actual amount of any Loss to be indemnified:
(i) |
the Loss amount will be reduced by the amount of the values effectively received by the Indemnified Party due to any insurances as a consequence of the fact, condition or circumstance giving rise to the Loss; |
(ii) |
the Loss amount will be reduced by the exact amount of the values effectively recovered by the Indemnified Party from Third Parties, net of all Taxes levied on, costs and expenses incurred in connection therewith, in relation to the fact, condition or consequence giving rise to the Loss (including, for avoidance of doubt, any amounts recovered by any Target Company (pro rata to the percentage of the Loss that was indemnified under this Agreement and Section 11.2.1 herein) under a rebalancing claim that directly compensates for a Loss that was previously indemnified hereunder); |
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(iii) |
the Loss amount will be net from the balance of the judicial deposits existing on the Closing Date, in relation to the relevant Third Party Claim, if applicable, to the extent such deposited amounts are effectively recovered by the relevant Indemnified Party or otherwise used to pay the amount of Losses due to the respective third parties under the relevant Third Party Claims; and |
(iv) |
the Loss amount will be reduced by the amount of any Tax benefit actually realized with positive cash impact (efeito caixa positivo) by the Indemnified Party or its Affiliates as a result of such Loss being treated as a deductible expense for Tax purposes. |
11.14Rebalancing Claims. If any Purchaser’s Indemnified Party incurs a Loss resulting from any Regulatory Special Matters as set forth in Section 11.2(viii) and, cumulatively, (i) the Seller has indemnified any such Loss and (ii) such incurred Loss triggers a right to a rebalance under Applicable Law, then the relevant Target Company shall, subject to Section 11.14.3, present a rebalancing claim (pleito de reequilíbrio) in connection with such Losses (separately, to the extent possible, from other requests (pleitos)), and, if necessary, enter into judicial or arbitral proceeding, seeking recovery of the maximum expected rebalancing recover amount (“Maximum Recover Amount”) (“Rebalancing Claim –Regulatory Special Matters”). In the event of any dispute between the Parties concerning the right to a rebalance under Applicable Law and/or regarding the Maximum Recovery Amount, the Parties shall mutually choose and engage, and equally share the related cost and expense, a first-tier law firm and/or a reputable regulatory consultancy in the applicable jurisdiction (each an “Expert”) to provide an assessment of the disputed matter. The Expert’s assessment shall be taken into consideration in preparing the Rebalancing Claim – Regulatory Special Matters.
11.14.1The relevant Target Company shall lead and conduct the Rebalancing Claims - Regulatory Special Matters; and, to the extent that a Rebalancing Claim - Regulatory Special Matters is an administrative or judicial proceeding that relates exclusively to a Loss indemnified by the Seller (i.e., without involving any other matters or requests (pleitos)), the provisions set forth in Sections 11.5 et seq. of the Agreement shall apply to such Rebalancing Claims - Regulatory Special Matters, to the extent applicable, and Seller shall be entitled to participate fully in all discussions, negotiations, and communications with the Governmental Authority and/or any Third Party in connection with the matter. All reasonable costs and expenses incurred by the relevant Target Company and/or the Purchaser in connection with the preparation, filing, pursuit, defense and/or conduct of any such Rebalancing Claim – Regulatory Special Matters shall be advanced by the Seller, provided that those costs and expenses are previously approved by the Seller, which approval shall not be unreasonably withheld.
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11.14.2Any economic benefits arising from a Rebalancing Claim - Regulatory Special Matters (including extension of the concession term, tariff adjustment, reimbursement, or otherwise) shall be treated as follows:
(i)if the economic benefits are in the form of a cash payment, then the amount to be reimbursed by the Target Company to the Seller shall correspond to the cash effectively received by the Target Company, net of any Taxes and reasonable costs (including attorneys’ fees, court costs, and technical report preparation costs) incurred in connection with the Rebalancing Claim - Regulatory Special Matters, multiplied by the same percentage that was applied by the Seller per Section 11.2.1 of the Agreement in indemnifying the respective Loss; or
(ii)if the economic benefits are in the form of a tariff adjustment, concession term extension or otherwise, then the amount to be reimbursed by the Target Company to the Seller shall correspond to (a) the rebalance claim amount awarded by the relevant Governmental Authority, to the extent this rebalance claim amount is exclusively related to the Regulatory Special Matter that was indemnified by the Seller, or (b) in case the rebalance claim amount is not clearly defined by the relevant Governmental Authority and/or is not exclusively related to the Regulatory Special Matter that was indemnified by the Seller, the fair value (in net present terms) that such changes represented to the Target Company, based on the amendment to the respective concession agreement, net of any Taxes and reasonable costs (including attorneys’ fees, court costs, and technical report preparation costs) incurred in connection with the Rebalancing Claim - Regulatory Special Matters, multiplied by the same percentage that was applied by the Seller per Section 11.2.1 of the Agreement in indemnifying the respective Loss;
provided that, in any of the foregoing events, the amounts to be reimbursed shall be limited to the Losses that were disbursed by the Seller, which shall be duly adjusted by the regulatory discount rate applicable to the relevant rebalancing claim (plus the inflation rate under the relevant concession agreement) from the date on which the indemnification was paid in full by Seller until the date of payment.
provided further that the Purchaser or the applicable Target Company shall pay the amounts specified herein within forty-five (45) days counted as from the date on which the corresponding Rebalancing Claim - Regulatory Special Matters becomes definitive (i.e., concession agreement addendum or equivalent formalization, or a final, non-appealable judicial decision if there is an ongoing administrative or judicial Claim, as applicable).
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11.14.3Notwithstanding anything to the contrary herein, each Party acknowledges and agrees that the Purchaser and the Target Companies shall not be required to (1) claim any rights that are not reasonably well grounded under Applicable Law and usual market practices (taking into account, in good faith, the Expert’s opinions as provided under Section 11.14), or (2) take or refrain from taking any actions that would not be reasonably expected to be taken by the Target Companies if Seller’s rights under this Section 11.14 were not to apply and that could, in good faith, harm the relationship of the Target Companies with their respective regulators and Governmental Authorities.
11.15Audits by Governmental Authorities. In case any of the Target Companies are subject to an audit (fiscalização) by a Governmental Authority in relation to the period prior to the Closing Date, the following procedures shall be observed:
(i) |
the Target Companies shall notify Seller within the maximum term of fifteen (15) days from the date in which the Target Companies receives the official notice informing the commencement of the audit (termo de início de fiscalização) or similar document; |
(ii) |
upon receipt of such notice, Seller shall be entitled to request information about the relevant audit and, to the extent they demonstrate that such audit could result in material indemnification obligations on their part as a result of breach of representations contained in Section 9.2.22 above, Seller will further have the right to: (a) reasonably request information with respect to such audit and (b) suggest procedures, responses, strategies and measures that in their opinion may mitigate the effect of such audit, provided the same are legal, ethical, reasonable, in the best interests of the Target Companies and not of a nature that might harm the image and reputation of the Target Companies; and |
(iii) |
it shall be considered in good faith any such Seller’s suggestion with regards to the conduct of an audit, it being understood that (i) the Purchaser retains sole control and final decision-making authority regarding the acceptance of any such suggestion; and (ii) in case the Target Companies opt to reject Seller’s suggestions, the Target Companies shall explain such decision in writing to the Seller. |
11.16Voluntary Disclosure. The Purchaser agrees not to carry out any voluntary disclosure (denúncia espontânea) in relation to acts, facts and omissions that may lead to a Third Party Claim without the Seller’s prior consent, which shall not be unreasonably withheld, provided that in case a voluntary disclosure is made without the Seller’s prior consent, the respective Loss shall not be indemnifiable.
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11.17Late Payments. Except as otherwise set forth in this Agreement, in the event any Party fails to timely perform any payment under this Agreement, including the indemnification payments due in accordance with this Chapter 11, this Party shall pay the other Party a non-compensatory fine equal to [**], limited to [**] of the delayed amount, in addition to interest at the Interest Rate (except for Losses due in accordance with this Chapter 11 and bearing interest at a higher rate, in which case such higher rate shall apply instead of the Interest Rate), calculated pro rata die, as from the default date until the date of the actual payment.
11.18Full Indemnity. The payment of the indemnification and/or reimbursement for Losses incurred by the Indemnified Parties hereunder shall be increased by an amount corresponding to all Taxes levied on or costs and expenses incurred in connection with the receipt of such indemnification and/or reimbursement (gross-up) (except as expressly provided in Section 11.11.1), such that, after the deduction or payment of such Taxes, costs or expenses, the beneficiary is restored to the status in which it would be had the indemnification and/or reimbursement not been subject to Taxes, costs or expenses.
11.19Indemnification Notices. In lieu of the notice provisions set forth in Section 14.3, any notices to be delivered to the Seller or its Affiliates in connection with the indemnification procedures under this Chapter 11 shall be sent by e-mail (and shall be deemed as delivered in accordance with Section 14.3(c) herein), [**]
CHAPTER 12. TERMINATION
12.1Termination. Notwithstanding any provision to the contrary set forth herein, this Agreement may be terminated at any time prior to the Closing:
(i) |
by mutual written consent of the Parties; |
(ii) |
by any Party, in the event any Governmental Authority issues a Governmental Order or practices any other act which, in any case, permanently restricts, prevents or otherwise forbids the Transaction and such Governmental Order, or any other act, is final and unappealable; |
(iii) |
at election of either Purchaser or Seller, if the Conditions Precedent are not verified or waived by the Dropdead Date, as per Section 6.5, provided that the right to terminate this Agreement under this Section shall not be available to the Party whose breach of any representation, warranty, obligation or covenant under this Agreement caused the non-occurrence of the Closing until the Dropdead Date; |
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(iv) |
by the Seller, in case the Purchaser breaches any of its covenants and obligations contained in this Agreement, and to the extent such breach is not cured (if possible to be cured) within thirty (30) days as of receipt by the Purchaser of a notice from the Seller in that regard; or |
(v) |
by the Purchaser, in case the Seller breaches any of its covenants and obligations contained in this Agreement, and to the extent such breach is not cured (if possible to be cured) within thirty (30) days as of receipt by the Seller of a notice from the Purchaser in that regard. |
12.2Termination Effects. In the event this Agreement is terminated under Section 12.1, all obligations of the Parties under this Agreement shall be terminated, except if otherwise set forth herein. If this Agreement is terminated by a Party due to the breach of this Agreement by the other Party of any of its representations, warranties, covenants or obligations contained herein, or if one or more Conditions Precedent were not verified as a result of any breach of the other Party of any representation, warranty or failure to comply with the covenants or obligations herein, then the right of the Party that intends to terminate this Agreement to seek any legal remedies hereunder shall survive the termination of this Agreement. Furthermore, Section 10.1 (Confidentiality), Chapter 11 (Indemnification), this Chapter 12 (Termination), Chapter 13 (Applicable Laws; Dispute Resolution; Arbitration) and Chapter 14 (General Provisions) shall survive the termination of this Agreement in any event.
12.3Break-up fee. Without prejudice to each Party’s ability to seek specific enforcement or any other remedies available under this Agreement, in case this Agreement is terminated by a Party (the “Terminating Party”) due to an unremedied breach by the other Party of any of its material obligations hereunder (or in case Seller is the Terminating Party as a result of Purchaser’s failure to obtain, until the Dropdead Date, the confirmation (ratificación) of the Transaction by the general shareholders’ meeting of Grupo Aeroportuario del Sureste, S.A.B de C.V.), the defaulting Party shall pay to the Terminating Party a non-compensatory fine in an amount equal to [**] of the Purchase Price within [**] as from receipt of the corresponding notice.
CHAPTER 13. APPLICABLE LAWS; DISPUTE RESOLUTION; ARBITRATION
13.1Applicable Laws. This Agreement and the rights, obligations and duties of the Parties arising hereunder shall be governed by and construed in accordance with the Laws of Brazil.
13.2Disputes. Seller and Purchaser shall try to amicably resolve any dispute, litigation or claim arising from or concerning this Agreement or a breach to, termination and validity thereof or of the transaction set forth herein (including in the period previous to the formation hereof) (“Dispute”).
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The Parties agree that their duty to attempt an amicable resolution of any disputes is a best efforts obligation that does not bar the immediate commencement of arbitration under Section 13.3 below.
13.3Arbitration. Notwithstanding the foregoing Section, any and all Disputes arising from or concerning this Agreement shall be finally and definitively settled by arbitration, pursuant to the Arbitration Regulation of the Câmara de Comércio Brasil Canadá (CCBC) (“Arbitration Chamber”) in effect at the time the request for arbitration is filed, except in case of a default on a liquidated, certain and enforceable obligation that entitles the other Party to initiate expedite judicial collection pursuant to the Applicable Laws of Brazil (execução judicial).
13.3.1Applicable Rules. In the event the rules established by Arbitration Chamber are silent on any procedural aspect they shall be complemented by the relevant provisions of the Arbitration Law.
13.3.2Arbitration Powers. The arbitration tribunal (“Arbitration Tribunal”) shall have powers to settle any and all controversies related to any Dispute, including complementary matters, and it shall have powers to issue any necessary orders to the Parties, including preliminary injunctions and provisional remedies prior to a final decision. The arbitrators shall not make any decisions based on equity.
13.3.3Arbitration Tribunal. The Arbitration Tribunal shall consist of three (3) arbitrators, whereas one (1) shall be appointed by the plaintiff(s), and one (1) by the defendant(s) within fifteen (15) days after being notified to do so by the Arbitration Chamber’s secretariat. The third (3rd) arbitrator, which shall be the president of the tribunal, shall be appointed by the two arbitrators appointed by the Parties within ten (10) days after the confirmation of both party-appointed arbitrators. In the event the arbitrators appointed by the Parties fail to appoint the third arbitrator within ten (10) days after their confirmation, and/or if the plaintiff(s) or defendant(s) do not appoint any arbitrator after fifteen (15) days after being notified to do so by the Arbitration Chamber’s secretariat, then said appointments shall be made by the President of the Arbitration Chamber under its rules. If there are multiple parties involved that may not act collectively as a group of plaintiffs or defendants, all the involved Parties shall collectively appoint two (2) arbitrators who shall then appoint the president arbitrator; if the appointed Parties fail to do so within fifteen (15) days after being notified to do so by the Arbitration Chamber’s secretariat, all three (3) arbitrators shall be appointed by the President of the Arbitration Chamber under its rules.
13.3.4Location; Language. The place of arbitration shall be the city of São Paulo, State of São Paulo. The language of the arbitration shall be English.
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13.3.5Binding Effect. The arbitration award may be enforced in any court with jurisdiction over the Parties, or their assets or in the courts of the city of São Paulo, State of São Paulo, at the exclusive criteria of the Parties. The arbitration award shall be final and binding over the parties of the arbitration and their successors and assignees, and the Parties waive any right to any appeal.
13.3.6Legal Measures. Each Party retains the right to seek judicial assistance: (a) to compel arbitration; (b) to obtain interim measures for protection of rights prior to the institution of the arbitration, which may be upheld, reversed or modified by the Arbitration Tribunal, after its formation; (c) to enforce any decision of the Arbitration Tribunal, including the arbitration award and any enforceable obligation; and (d) to seek annulment of the arbitration award when permitted by Applicable Law. The Parties elect the courts of the city of São Paulo, State of São Paulo, as competent to adjudicate the matters referred to herein. However, for the purposes of enforcement of decisions rendered by the Arbitration Tribunal the Parties may, at their sole criteria, resort to any competent court with jurisdiction over the Parties or their assets. No judicial measure shall be construed as a waiver of arbitration as the exclusive means of dispute resolution selected by the Parties or to the jurisdiction of the arbitrators.
13.3.7Arbitration Confidentiality. To the fullest extent permitted by Applicable Laws, the arbitration proceeding, any information disclosed therein, and the arbitrators’ award shall be kept in secrecy by the Parties. Notwithstanding, a breach of this covenant shall not affect the enforceability of this Agreement to arbitrate or the arbitrators’ award. The breach of confidentiality shall be subject to an expedite judicial collection proceeding pursuant to the Brazilian law (execução judicial).
13.3.8Enforceable Arbitration Provisions. A Party’s breach of this Agreement shall not affect what is agreed in this Chapter 13 regarding the submission of any dispute to an arbitration proceeding. In addition, the obligation of the Parties under this arbitration clause shall survive the termination of this Agreement. The invalidity or non-enforceability of any provision under this Chapter 13 shall not affect the validity or enforceability of the Parties’ obligation to submit their claims to the binding arbitration or to the other provisions of this Chapter 13.
13.3.9Code of Civil Procedure Requirements. The partial or final arbitral award shall include the requirement established in the Arbitration Law, in full compliance with the requirements of Article 489 and its paragraphs of the Code of Civil Procedure, and of Article 26 of the Brazilian Arbitration Act.
13.3.10Intervening Party. For the avoidance of doubt, this arbitration agreement is valid, binding and enforceable in relation to the Parties and the
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Company.
CHAPTER 14. GENERAL PROVISIONS
14.1No Right to Offset. Except if otherwise set forth in this Agreement, Purchaser, on its behalf and on the behalf of its Affiliates, successors and assignees, hereby, irrevocably and unconditionally waives any rights concerning offsetting, settlement, release, indemnification or similar rights that Purchaser or any of its Affiliates, successors and assignees had or may have with respect to the payment of the Purchase Price or any other payments to be made by Purchaser pursuant to this Agreement or any other document or instrument delivered by Purchaser in connection herewith.
14.2Entire Agreement; Exhibits. The Exhibits to this Agreement and the Sections of the Disclosure Letter are an integral part hereof, and this Agreement, together with the Exhibits and the Disclosure Letter and any of the other agreements contemplated or referenced herein, comprise the entire agreement among the Parties hereto regarding the Transaction and supersede all other prior arrangements made by any of them with respect thereto. There are and have been no restrictions, promises, representations, warranties, covenants, commitments or statements, whether written or verbally, that have been relied upon by any of the Parties hereto, except for those expressly set forth in (or contemplated or referenced in) this Agreement, its Exhibits and in the Disclosure Letter.
14.3Notices. Any notifications, notices, consents, requests or other communications under this Agreement shall be sent to the Parties as indicated below, and shall be made in writing, and sent by: (i) registered mail with return receipt; (ii) delivered personally with receipt; (iii) e-mail; or (iv) by judicial or extrajudicial notice to the Parties at the addresses listed below. The notices delivered as provided for in this Section shall be deemed as delivered (a) on the date presented in the return receipt, if sent by mail; (b) on the delivery date, if delivered personally; (c) on the delivery date (and provided that the sender does not receive a bounce back or similar delivery error message from the recipient’s server), if sent by e-mail; or (d) on the delivery date, if delivered through judicial or extrajudicial notice.
If to Purchaser (or the Company, after the Closing Date):
[**]
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If to Sellers (or the Company, prior to the Closing Date):
[**]
With copy to (which shall not constitute a notice):
[**]
14.3.1Change of Contact. Any of the Parties may change the contact information and the addresses to which the notices shall be sent, upon written notice to the other Parties, pursuant to terms of this Section. If the communication regarding the change of the contact information or address is not made, any notifications, notices, consents, requests and/or other communications sent to the address mentioned in the preamble hereof, or to any other address that may be later notified in writing, shall be deemed valid and binding upon the addressee Party.
14.4Heirs, Successors, and Assignees. This Agreement will bind and will be for the benefit of the Parties, and their respective heirs, successors and assignees, provided that neither Party may assign or transfer any of the rights or obligations set forth herein without the prior written consent of the other Parties, and such consent may not be unreasonably withheld. Any assignment or transfer by the Parties of any of the rights or obligations set forth herein without the prior written consent of the other Parties shall be null and void.
14.5Waivers. No waiver, release or termination of this Agreement or of any terms or provisions herein shall be binding upon any Party hereto, unless upon written confirmation by a notice that makes specific reference to the relevant Section in this Agreement. No waiver, by any of the Parties, of any term or provision of this Agreement, or any non-compliance hereunder, shall affect the rights of said Party to, posteriorly, enforce this term or provision or exercise any right or seek legal remedy in the event of other non-compliance, whether or not similar.
14.6Amendments. No amendment or change to the provisions of this Agreement will be enforceable unless formalized in writing and executed by all the Parties.
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14.7Severability. The provisions of this Agreement are severable, unless otherwise set forth herein. If any section or provision herein is deemed invalid or unenforceable, in whole or in part, by a Governmental Authority with jurisdiction over the Parties, or is deemed unlawful due to a regulatory change, then the invalidity or unenforceability shall affect only such section or provision, or the part thereof, and shall not, in any manner, affect any other section or provision of this Agreement, and the remaining of the Agreement shall remain in full force and effect, as originally written and agreed. In addition, to the extent that a section or provision is considered invalid or unenforceable as set forth above, the Parties shall endeavor their best efforts to agree, in good faith, to a legally enforceable alternative method to obtain a result that would be have been obtained, if it was not for the ruling or discovery of said illegality or unenforceability of such item or provision.
14.8No Third Party Beneficiary. The terms and conditions of this Agreement are exclusively for the benefit of each of the Parties hereto and their respective successors, heirs or authorized assignees, and they are not intended to grant rights to a Third Party beneficiary, and this Agreement does not grant any such rights to any other Person.
14.9Binding Effect. This Agreement (and all of its terms and conditions) is entered into on an irrevocable and irreversible basis, constituting lawful, valid and binding obligations, obliging and remaining in force for the benefit of the Parties and any intervening consenting parties hereto, and their respective heirs, successors, and authorized assignees.
14.10Joint Efforts. The Parties and any intervening consenting parties, hereby, agreed that they shall take all measures necessary to the full compliance with the obligations set forth herein, thereby executing all instruments, certificates and other documents required for the performance of the Transaction contemplated in this Agreement.
14.11Expenses. Except as otherwise expressly set forth in this Agreement, all costs and expenses, including attorney’s fees and fees of financial advisors, auditors, and other expenses incurred in connection to this Agreement and the transactions contemplated hereunder shall be paid for and borne by the Party that incurred such costs and expenses.
14.12Specific Performance. Subject to the provisions hereof, the Parties hereby acknowledge that the attribution of losses and damages, although payable and calculated pursuant to the Applicable Laws, may not represent sufficient recovery for the breach of obligations of taking action or not taking action (obrigações de fazer e não fazer) set forth herein. Therefore, any of the Parties may request the specific performance of any such obligations, including the principal and subsidiary obligations set forth herein.
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14.13Extrajudicial Enforcement Instrument. This Agreement constitutes an extrajudicial enforcement instrument (título executivo extrajudicial) for all the purposes and effects of the Code of Civil Procedure.
14.14Electronic Signatures. The Parties and any intervening consenting parties acknowledge that this Agreement has full effectiveness in electronic format, equivalent to physical document for every legal effect, acknowledging and stating the signatories that the signature of this Agreement in the electronic format, without the initials, it is the chosen format of mutual agreement by all the Parties and any intervening consenting parties as able to prove the integrity of the Agreement, and to certify full legal effect, as the document was physical. All the signatures of this Agreement in electronic format, even if such signatures are not made by means of an electronic certificate issued by ICP-Brasil, as set forth in this Section, have full validity and are enough to the authenticity, integrity and existence of this Agreement. The Parties and any intervening consenting parties agree that (i) even if any of the Parties or the intervening consenting parties digitally sign this Agreement from a different location, the place of execution of this Agreement is, for all purposes, the City of São Paulo, State of São Paulo, as indicated below; and (iii) the date of signature of this Agreement, for all purposes, shall be the date expressly indicated below, notwithstanding the date on which the last of the digital signatures is performed.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective authorized representatives, together with the two (2) undersigned witnesses.
São Paulo, November 18, 2025.
MOTIVA INFRAESTRUTURA DE MOBILIDADE S.A.
[**]
AEROPUERTO DE CANCÚN, S.A. DE C.V.
[**]
COMPANHIA DE PARTICIPAÇÕES EM CONCESSÕES
[**]
Witnesses:
[***]
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Stock Purchase and Sale Agreement and Other Covenants
by and among Motiva Infraestrutura de Mobilidade S.A. (as Seller) and Aeropuerto de Cancún, S.A. de C.V. (as Purchaser), and Companhia de Participações em Concessões (as intervening and consenting party), entered into on November 18, 2025
Exhibit 1.1
Definitions
“Accounting Principles” means (a) with respect to the Company or any other Person organized under the Laws of Brazil, the set of accounting principles in effect and generally accepted in Brazil, based on the Brazilian Corporation Law, the rules issued by the Securities Exchange Commission (Comissão de Valores Mobiliários – CVM), the accounting standards established by the Federal Accounting Council (CFC) and by the Institute of Independent Auditors in Brazil (IBRACON) and the resolutions of the Federal Accounting Council (CFC), as the case may be and as applicable; and (b) with respect to any Person not organized under the Laws of Brazil, the set of accounting principles in effect and generally accepted in the respective jurisdiction, including, when applicable, the accounting standards established in accordance with the International Financial Reporting Standards (IFRS), issued by the International Accounting Standards Board (IASB);
“Actual CAPEX” means the aggregated capital expenditures (CAPEX) actually performed in relation to the Target Companies during the fiscal year of 2025, which shall be calculated by adding the CAPEX in relation to each Target Company, multiplying it by the Company’s stake in each Target Company;
“Affiliate” means, in relation to a specific Person, any other Person that, directly or indirectly, by means of one or more intermediaries, Controls such first Person, is Controlled by such Person or is under common Control with such Person. Notwithstanding, and for avoidance of doubt, with respect to (a) the Seller, “Affiliate” shall mean solely the Persons Controlled by Motiva Infraestrutura de Mobilidade S.A. and (b) the Purchaser, “Affiliate” shall mean solely the Persons Controlled by Grupo Aeroportuario del Sureste, S.A.B. de C.V.;
“ANAC” means the Brazilian Civil Aviation Agency;
“Anticorruption Laws” means (i) all Laws of Brazil on corruption, bribery, fraud, crimes against the national financial system, conflict of public interests, improper conduct, violation of public bidding and procurement, money laundering, political or electoral donations, or business administration without commitment to ethics (or similar), including Decree-Law n.
2,848/1940 (Brazilian Criminal Code), Brazilian Federal Law n. 8,429/1992 (Lei de Improbidade Administrativa), Brazilian Federal Law n. 9,504/1997 (Lei Eleitoral), Brazilian Federal Law n. 14,133/21 (Lei de Contratos e Licitação Pública), Brazilian Federal Law n. 12,813/2013 (Lei de Conflito de Interesses), Brazilian Federal Law n. 9,613/1998 (Lei de Lavagem de Dinheiro) and Brazilian Federal Law n. 12,846/2013 (Lei Anticorrupção), later regulated by Federal Decree n. 11,129/22 and Federal Decree n. 12,340/24, (ii) only when applicable, the United Kingdom UK Bribery Act, (iii) only when applicable, the Foreign Corrupt Practices Act of 1977 of the United States of America, and (iv) only when applicable, any other foreign law concerning corruption, bribery, fraud, crimes against the national financial system, conflict of public interest, misconduct, bid-rigging and procurement violations, money laundering, political or electoral donations, or unethical business management (or similar);
“Antitrust Authority” means (i) the Superintendence of Economic Competition (Superintendencia de Competencia Económica) in Ecuador, (ii) the Fair Trade Authority Curaçao (FTAC) in Curaçao, (iii) the Commission to Promote Competition (Comisión para Promover la Competencia - COPROCOM) in Costa Rica, and (iv) the Administrative Council for Economic Defense (Conselho Administrativo de Defesa Econômica) in Brazil;
“Applicable Law” means all applicable provisions under any Law applying to a given Person, asset or business;
“Arbitration Law” means the Law No. 9,307, promulgated on September 23rd, 1996;
“Brazil” means the Federative Republic of Brazil;
“Brazilian Corporation Law” means the Federal Law No. 6,404, promulgated on December 15th, 1976;
“Brazilian Tax Reform” means any changes to Brazilian tax legislation or regulations, whether at the federal, state, or municipal level, that result in a structural modification of the tax system, including changes in the types of taxes, their rates, scope, calculation, or collection mechanisms;
“Business Day” means any day that is not a Saturday, Sunday or any other day in which the financial institutions are obliged or authorized under Applicable Law to remain closed (i) in the city of São Paulo, State of São Paulo, Brazil; (ii) in Curaçao; (iii) in the city of Quito in Ecuador; (iv) in the city of San Jose in Costa Rica; (v) in the city of Belo Horizonte, Minas Gerais, Brazil; and/or (vi) in the city of Confins, Minas Gerais, Brazil;
“Cash” means in relation to any Person, with no duplicity, on an aggregated manner and in accordance with the Accounting Principles, all cash and cash equivalents, including any financial investments that are readily convertible into known amounts of cash and that are subject to an insignificant risk of changes in value, and any restricted, pledged, blocked or trapped cash, compensating/minimum balances, escrow or guarantee accounts, judicial deposits, margin accounts, and amounts otherwise not freely available under Applicable Law or contract;
“Civil Code” means the Federal Law No. 10,406, promulgated on January 10th, 2002;
“Claim” means any action, judicial, arbitral or administrative proceeding, claim, demand, order, judicial or extrajudicial, notification, notice of infraction, notice of breach or violation, investigation, collection notice, procedure, judicial, extrajudicial or arbitral, or judicial or administrative inquiry (including police investigation), including civil, labor, administrative, Tax, social security, or any other nature;
“Control” (and derived terms such as “Controller”, “Controlled by” or “under common Control with”) means the direct or indirect ownership and actual use of the power to direct or order the directing of the management or policies of a Person, whether by means of equity interest, by agreement or other property rights, in accordance with Article 116 of the Brazilian Corporation Law;
“Disclosure Letter” means the letter delivered by Seller to Purchaser simultaneously to the execution of this Agreement with information specifically related to this Agreement;
“Eligible Contributions” means the amount of cash contributed by the Seller to the Target Companies during the Locked Box Period in connection with any capital increase, advance for future capital increase (AFAC), capital contribution or similar event (each a “Contribution”), if and to the extent that: (i) such Contribution is necessary to comply with the obligations set forth under the relevant Concession Agreements or Applicable Law; or (ii) such Contribution is determined by the Seller in good faith as reasonably required to respond appropriately and prudently to any natural or manmade emergency, disaster or unforeseeable critical operational disruption affecting the Target Companies and/or any of their businesses, assets and/or operations, including any such situations caused by natural disaster; (a)with respect to the Purchaser, the representations and warranties set forth in the following Sections:
“Fundamental Representations” means:
8.1.1 (Organization and Status);
8.1.2 (Authority);
8.1.3 (No Conflict);
8.1.4 (Approvals and Consents);
8.1.5 (Claims);
8.1.6 (Financial Capacity),
8.1.8 (Relationship with Governmental Authorities; Anticorruption Laws);
8.1.9 (Powers of Signatories); and
(b)with respect to the Seller, the representations and warranties set forth in the following Sections:
9.1.1 (Authority);
9.1.3 (No Conflicts);
9.1.4 (Approvals and Consents);
9.1.5 (Claims);
9.1.8 (Solvency);
9.1.6 (Relationship with Governmental Authorities; Anticorruption Laws);
9.1.7 (Powers of Signatories) and
9.2.1 (Capital Stock);
9.2.2 (Ownership);
9.2.3 (Organization and Status);
9.2.7 (Authority);
9.2.8 (Subsidiaries);
9.2.9 (No Conflict);
9.2.10 (Approvals and Consents);
9.2.11 (Powers of Signatories);
9.2.32 (Relationship with Governmental Authorities; Anticorruption Laws);
9.2.33(i), (iii) and (v) (Concession Agreements); and
9.2.36 (Brokerage Fees and Commissions);
“FX Rate” means, with respect to any given currency, the average Dollar buy-sell or parity rates (PTAX) as published by the Brazilian Central Bank;
“Governmental Authority” means any (a) nation, country or government or any province or state or any other relevant political subdivision; (b) any entity, authority or body that exercises executive, legislative, judicial, regulatory or administrative duties of, or inherent to, a government, including any national, foreign or supranational government or regulatory authority, agency, department, board, commission or other body and any relevant subdivision; and (c) any court, tribunal or arbitrator;
“Governmental Order” means any preliminary (whose effects are in force) or final order, warrant, judgment, injunction, decree or decision enacted, issued or granted by any Governmental Authority;
“Indebtedness” means, in relation to any Person, with no duplicity, on an aggregated manner and in accordance with the Accounting Principles, (a) all obligations for borrowed money (including bank overdrafts and drawings under credit facilities), (b) all liabilities evidenced by promissory notes, bonds, debentures and other similar instruments (except, for clarity, performance bonds and similar instruments arising from the ordinary course of business, consistent with past practices), (c) all obligations of reimbursement, payment or similar obligations, arising from a letter of credit, bank guarantees, surety/performance bond or similar instruments, and (d) finance leases and lease liabilities;
“Intellectual Property” means any and all of the following items that are used in the operation of the Target Companies: trademarks, service marks, trade names, trade dress, logos, visual identity, and other proprietary indicia and all goodwill associated therewith, logos, visual identity, patents, industrial designs, know-how, trade secret, domain names, databases, software, software codes, software technical documentation, copyrights, whether or not registered, as well as the right to request the registration or any kind of protection of any of the items abovementioned, if applicable, and rights licensed to the Target Companies in relation to any of the items above, including the right to file lawsuits or administrative procedures based on the infringement of any of the rights abovementioned in any country of the world;
“Law” means any law, statute, common law, constitution, degree, ordinance, directive, rule or regulation, and any judgment, legislation or order of any Governmental Authority;
“Leakage” means, in respect of any Target Company, any of the following (without duplication), to the extent they occur within the Locked Box Period: (i) any declaration or distribution or payment of profits, dividends, interest on net equity (juros sobre o capital próprio) or any other income or payment (whether in cash or in kind) by the Target Companies; (ii) any payments (in cash or in kind) on account of a reduction of the corporate capital (in cash or in kind), redemption or repurchase of shares or other securities, or any other devolution of capital (devolução de capital), (iii) any payment of cash or any transfer of assets from the Target Companies to the Seller and/or any of its Affiliates; (iv) any liabilities of the Seller and/or any of its Affiliates assumed or indemnified by the Target Companies; (v) any waiver, deferral or release (whether conditional or not) by the Target Companies of any liability, amount, right, value, benefit or obligation owed or due to the Target Companies by the Seller and/or any of its Affiliates; (vi) any repayment of loan or other indebtedness that is owed to the Seller and/or any of its Affiliates; (vii) any fees, costs and expenses of external advisers (including investment bankers, law firms and accountants) engaged by the Seller, its Affiliates or a Target Company in relation to the Transaction, to the extent paid, payable, assumed, indemnified or incurred by any Target Company, (viii) the payment or agreement to pay by any Target Company of any fees, costs or Tax or other amounts as a result of any of the foregoing matters; and (ix) the hypothesis provided under “Exhibit 6.3(vi)”. In addition, (a) fifty percent (50%) of the amount of the Retention Bonuses, and (b) the full amount of any ILP Acceleration, shall in both cases be considered a “Leakage”, whether or not payments occur within the Locked Box Period but without duplication with any amounts reflected in the Year-End Adjustment (and, to the extent such payments do not occur until Closing, the respective amount shall be applied at Closing).
“Licenses” means any and all permits, licenses, certificates, operational licenses, certifications, protocols, registries (including legal reserve registries), authorizations, enrollments, approvals (including, when authorized by the Applicable Laws, the absence of any rejections during the applicable grace periods), grants and waivers (of any nature, including environmental, real estate and regulatory), obtained from any Governmental Authority with valid jurisdiction and which are material to the conduct of the Target Companies’ businesses according to the Applicable Law;
“Liens” means any liens, pledge, guarantee right, charge, mortgage, purchase right, retention of title, easement, usufruct, fiduciary assignment (alienação fiduciária), deed of trust, warrant, options, property rights, preemptive rights, right of first refusal, right of first offer, tag-along right, drag-along right, purchase preference rights, rights of conversion or redemption, rights to exchange, transfer restrictions of any nature, or other agreements or commitments (including shareholders’ agreements and conditional sales contract) of any nature, providing for the purchase, issuance, or sale of securities, voting arrangements, proxies or other agreements or understandings in effect with respect to any rights attributable to securities or any other encumbrance of any kind;
“Loss” means, without duplicity, any losses, disbursements, interest, charges, fines, fees, penalties, damages, costs, expenses, liabilities, obligations, costs and/or expenses in general (including costs and fees of attorneys, accountants and other professionals), effectively suffered or incurred by a Person; provided that the Losses under this Agreement shall not include losses related to loss of profits, moral damages, and indirect damages, decrease in value, damages of punitive nature, exemplary or special damages, as well as any loss of commercial opportunity or loss of a chance (jointly, the “Special Damages”), except (a) to the extent any such Special Damages are awarded to a third party under a Third Party Claim initiated against an Indemnified Party, in which case such Special Damages will be considered a “Loss” for all purposes of this Agreement, and (b) for loss of profits in connection with indemnity claimed under Section 11.2(i) (breach of Representations and Warranties) herein exclusively in connection with matters described in the representations and warranties set forth in Section 9.2.33 (Concession Agreements), items (i), (iii) and (v), in which case the loss of profits shall be deemed a “Loss” for all purposes of this Agreement. For avoidance of doubt, any capital expenditures required as a result of any breach of representations and warranties made under the Agreement and/or any indemnity provisions hereunder shall be an indemnifiable Loss. No “multiple of profits” or “multiple of cash flow”, “multiple of earnings” or similar assessment methodology shall be used to calculate the amount of any Loss;
“Material Adverse Effect” means (a) any event, circumstance, effect, change or effect over the Target Companies which, individually or jointly with all events and circumstances, causes or is reasonably expected to cause an adverse effect on the businesses, operations, assets, financial condition or obligations (including contingent obligations), or on relations with employees, consumers, suppliers or Governmental Authorities, that results or is reasonably expected to result in a contingent or actual loss, negative financial impact, payments or disbursements in an amount in excess of [**] (or its equivalent in local currency per the FX Rate as of the date the underlying event takes place); and (b) the declaration of bankruptcy (either voluntary or not), filing of request to judicial or extrajudicial reorganization (recuperação judicial ou extrajudicial) or dissolution or liquidation of any of the Target Companies, provided that the effects arising from any of the following events shall not be considered for the purposes of this definition: (i) general changes in the political or economic conditions that affect the world, or the stock or financial markets or the airline businesses, including variations in the exchange rates, inter-country Taxes, airport tariffs, inputs and raw materials or any deterioration on the financial or operational capacity of airline companies, except if any of such events affects the Target Companies in a materially disproportional manner in comparison with the other companies operating in the same market, (ii) acts of war, hacking, sabotage, terrorism, protests, attacks, strikes or civil conflicts, (iii) any great natural disaster affecting a region (and not any Target Company in a materially disproportional manner in comparison to the affected region), (iv) pandemics with global relevance and magnitude (such as Covid-19 in year 2020); (v) changes in the Accounting Principles or any Applicable Law, including those that relate to the Brazilian Tax Reform, (vi) the Target Companies’ failure to reach the financial or operational projections, (vii) the Transaction or the fulfilling of any terms and conditions of this Agreement, (viii) any material and unforeseeable effects deriving from restrictions imposed by Antitrust Authorities or by Governmental Authorities in connection with a Concession Approval; provided further that the amounts in connection with any matter disclosed in the Disclosure Letter on the date hereof, so long as such matter has an assigned amount and up to the limit of the respective assigned amount, shall be disregarded for purposes of the monetary threshold above;
“Material Agreements” means all agreements, contracts or covenants, whether written or verbal, to which any of the Target Companies is a party or by which is somehow subject to, that: (i) demand payment(s) by or on behalf of any of the Target Companies in the aggregate in excess (without annualization) of [**] (or its equivalent in local currency per the FX Rate as of the date hereof, or as of the date in which any action is deemed to be taken under Section 6.6); and/or (ii) provide for the receipt by any Target Company of revenues from clients in the aggregate in excess of [**] per year (or its equivalent in local currency per the FX Rate as of the date hereof, or as of the date in which any action is deemed to be taken under Section 6.6); and/or (iii) cannot be terminated by the relevant Target Company without incurring a penalty or additional payment of an amount equal to or greater than [**] (or its equivalent in local currency per the FX Rate as of the date hereof, or as of the date in which any action is deemed to be taken under Section 6.6); and/or (iv) contemplate restrictions for any of the Target Companies in relation to non-competition, exclusivity, non-solicit and/or non-disparagement; and/or (v) were entered into with any Governmental Authority (including the Concession Agreements);
“Net Debt” means Indebtedness less Cash. For avoidance of doubt, the amount of any assets and liabilities of a given Subsidiary that are computed in the Net Debt shall be proportional to the direct and indirect equity stake represented by the Equity Interests in such Subsidiary. For purposes of the calculation, the amount of any assets and liabilities of a given Subsidiary not expressed in Brazilian Reais shall be converted per the FX Rate as of the Base Date;
“Permitted Liens” means any Liens arising from Applicable Laws, the Existing Shareholders’ Agreements, or the financing agreements as indicated in “Section 9.2.2” of the Disclosure Letter; “Person” means any individual or legal entity, partnership, company subject to delectus personae, corporation, association, trust, investment funds, condominium, Governmental Authority, joint venture, entity or other organization without legal personality, or any other entity or organization;
“Real” or “R$” means the national currency of Brazil;
“Reference CAPEX” means the planned capital expenditures (CAPEX) to be performed in connection with each Target Company during the fiscal year of 2025, as set forth in “Exhibit F”;
“Reference Net Debt” means the amount calculated pursuant to the “Exhibit D”;
“Reference Working Capital” means the amount calculated pursuant to the “Exhibit E”;
“Related Party” means, in relation to any Person, the relevant (i) spouse or domestic partner, parents, grandparents, descendants or ascendants (within the second degree), or sibling of such Person; (ii) any other Person that: (a) directly or indirectly holds equity interest equivalent to, at least, thirty percent (30%) of the capital stock of the first Person and/or (b) has the right to, directly or indirectly, appoint or remove the executive officers or members of the board of directors of the first Person;
“Representative” means, in relation to a Person, its administrators, officers, directors, managers, employees, agents, attorneys, consultants, advisors or representatives at any title;
“Taxes” means (i) any and all foreign, local, state, federal or any other taxes, fees, taxations, emoluments, levies, customs rights and charges of any type (including any interest, penalties, or increases to taxes thereon), including, among other, taxes on, or assessed by, revenue, franchise, profits or gross revenues, and also ad valorem, value-added, sales, use, service, real estate or assets, corporate capital, license, payroll, withholding, employment amounts, social security, occupational accident indemnification, unemployment insurance, government services, severance payments, production, consumption, seal, occupation, premium, unforeseen profits, transfer and gains, and customs rights, whether or not disputed; and (ii) the responsibility for the payment of any amounts of the nature described in item (i) as a result of any Applicable Laws or of being a member of an affiliated, consolidated, combined, unit or aggregated group or any other relationship that gives rise to a regulatory secondary liability (tax “Territory” means each of (i) Brazil; (ii) Curaçao; (iii) Ecuador; and (iv) Costa Rica; provided that, in case the Purchaser does not ultimately acquire, directly or indirectly, the Equity Interests in any Target Company under this Agreement, “Territory” shall exclude any jurisdiction in which the underlying Target Company operates;
liability);
“Third Party” means any Person that is not a Party or its Affiliates;
“Working Capital” means, regarding a Person, without duplication and in an aggregated manner and in accordance with the Accounting Principles, (i) the amount of accounts receivable, net of allowance for doubtful accounts; plus (ii) the amount of inventory, net of obsolescence/slow-moving reserves; plus (iii) the amount of taxes and contributions recoverable; plus (iv) the amount of advance payments to suppliers; plus (v) the amount of advance payments to employees; plus (vi) the amount of other credits (including intercompany credits); plus (vii) the amount of prepaid expenses; less (viii) the amount of accounts payable with suppliers (all accounts related to suppliers); less (ix) the amount of labor and social security liabilities; less (x) the amount of tax liabilities; less (xi) the amount of declared dividends or interest on equity; less (xii) the amount of other liabilities on current liabilities (including intercompany debts); in all cases excluding any items computed in the Net Debt. For avoidance of doubt, the amount of any assets and liabilities of a given Subsidiary that are computed in the Working Capital shall be proportional to the direct and indirect equity stake represented by the Equity Interests in such Subsidiary. For all purposes of this Agreement, the amount of any assets and liabilities of a given Subsidiary not expressed in Brazilian Reais shall be converted per the FX Rate as of the Base Date;
“Year-End Net Debt” means the aggregate Net Debt of the Company ascertained pursuant to the Year-End Statement, which shall be calculated by adding all Net Debt position of each Target Company, multiplying it by the Company’s stake in each Target Company. For all purposes hereof, any assets (ativo) or liabilities (passivos) set out in any Year-End Statement in any currency other than Brazilian Reais shall be converted into Brazilian Reais per the FX Rate as of the relevant date;
“Year-End Working Capital” means the aggregate Working Capital of the Company ascertained pursuant to the Year-End Statement, which shall be calculated by adding all Working Capital position of each Subsidiary, multiplying it by the Company’s stake in each Target Company. For all purposes hereof, any assets (ativo) or liabilities (passivos) set out in any Year-End Statement in any currency other than Brazilian Reais shall be converted into Brazilian Reais per the FX Rate as of the relevant date.
* * * * *
Exhibit A
Subsidiaries
2. |
Companhia de Participações Aeroportuárias |
[**] |
Indirect |
80% |
7. |
SJO Holding LTD. |
[**] |
Indirect |
|
99.29% of Class B (non-voting) |
||||
8. |
Green Inc. |
[**] |
Direct |
100% |
9. |
Inversiones Bancnat S.A. |
[**] |
Indirect |
99.64% |
10. |
CCR Concessiones Costa Rica |
[**] |
Indirect |
99.29% |
12. |
Desarrollos de Aeropuertos AAH, S.R.L. (DA) |
[**] |
Indirect |
99.65% |
17. |
QH S/A |
[**] |
Indirect |
100% |
20. |
Corporación Quiport S.A. |
[**] |
Indirect |
46.5% |
22. |
Sociedade de Participação no Aeroporto de Confins S.A. (SPAC) |
[**] |
Direct |
75% |
23. |
Concessionaria do Aeroporto Internacional de Confins S.A. |
[**] |
Indirect |
38.25% |
24. |
Concessionária do Bloco Sul S.A. |
[**] |
Direct |
100% |
25. |
Concessionária do Bloco Central S.A. |
[**] |
Direct |
100% |
26. |
Concessionária do Aeroporto da Pampulha S.A. |
[**] |
Direct |
100% |
CCR Concessiones S.L.U.* | ||||
1. |
Companhia de Participações em Concessões* |
47.036.278 |
EUR 47.036.278,00 |
100% |
Companhia de Participaçeõs Aeroportuárias* | ||||
Curaçao Airport Investments N.V. | ||||
Care N.V. | ||||
CAP N.V. | ||||
CCR Costa Rica Empreendimentos | ||||
SJO Holding LTD.1 | ||||
1. |
CCR España Concesiones y Participaciones S.L.U. – Class A (voting)* |
49 |
N/A* |
49% |
1 The concept of capital stock used in Brazil doesn’t apply to BVI. For avoidance of doubt, the Class A Shares have a value of USD 0.01 for share redemption purposes. Although there is no par value for Class B Shares, we’ve adopted for internal accounting purposes, the criterion that Class B shares represent the fair market value of the company, which is basically the value of the subordinated debt.
Green Inc. | ||||
Inversiones Bancnat S.A. | ||||
CCR Concessiones Costa Rica | ||||
Grupo de Aeropuertos Internacional AGI Costa Rica, S.R.L. (GAI) | ||||
Desarrollos de Aeropuertos Bechtel, S.R.L. (DA) | ||||
Terminal Aerea General S.R.L. (TAG) | ||||
AERIS S/A | ||||
IAF S.A. | ||||
# |
Shareholder |
Total N° of Shares |
Capital Stock |
Percentage Over |
1. |
ODINSA |
23.250 |
EUR 23.250,00 |
23,25% |
2. |
MIP V Asteroid Holdings Limited |
23.250 |
EUR 23.250,00 |
23,25% |
3. |
CCR España Emprendimientos* |
46.500 |
EUR 46.500,00 |
46,50% |
4. |
HASDC |
7.000 |
EUR 7.000,00 |
7,00% |
Total |
- |
100.000 |
EUR 100.000,00 |
100% |
CCR Empreendimentos S.L.U. | ||||
# |
Shareholder |
Total N° of Shares |
Capital Stock |
Percentage Over |
1. |
Companhia de Participações em Concessões* |
800.445 |
EUR 800.445,00 |
100% |
QH S/A | ||||
# |
Shareholder |
Total N° of Shares |
Capital Stock |
Percentage Over |
1. |
CCR España Emprendimientos* |
41.611.850 |
USD 41.611.850,00 |
100% |
QUIAMA Delaware | ||||
# |
Shareholder |
Total N° of Shares |
Capital Stock |
Percentage Over |
1. |
Odinsa S.A |
50 |
50,00 |
25% |
2. |
MIP V Asteroid Holdings Limited |
50 |
50,00 |
25% |
3. |
CCR ESPAÑA EMPRENDIMIENTOS S.L.U.* |
100 |
100,00 |
50% |
Total |
- |
200 |
USD 200,00 |
100% |
Icaros S/A | ||||
# |
Shareholder |
Total N° of Shares |
Capital Stock |
Percentage Over |
1. |
Quiport Holdings S.A.* |
12.395 |
USD 12.395,00 |
100% |
Corporación Quiport S.A. | ||||
# |
Shareholder |
Total N° of Shares |
Capital Stock |
Percentage Over |
1. |
Quiport Holdings S.A.* |
30.690.000 |
USD 30.690.000,00 |
46,5% |
2. |
|
15.345.000 |
USD 15.345.000,00 |
23,3% |
3. |
MIP Cinco Transporte Iberoamerica S.L.U |
15,345.000 |
USD 15.345.000,00 |
23,3% |
4. |
Has Development Corporation |
4.620.000 |
USD 4.620.000,00 |
7,0% |
Total |
- |
66.000.000 |
USD 66.000.000,00 |
100% |
QUIAMA Ecuador | ||||
# |
Shareholder |
Total N° of Shares |
Capital Stock |
Percentage Over |
1. |
Quito Airport Management (Quiama) |
27.798 |
USD 27.798,00 |
99,993% |
2. |
CCR España Emprendimientos |
1 |
USD 1,00 |
0,004% |
3. |
Odinsa S.A. |
1 |
USD 1,00 |
0,004% |
Total |
- |
28.000 |
USD 28.000,00 |
100% |
Sociedade de Participação no Aeroporto de Confins S.A. (SPAC) | ||||
# |
Shareholder |
Total N° of Shares |
Capital Stock |
Percentage Over |
1. |
Companhia de Participações em |
356.151.477 |
R$356.151.477,00 |
75% |
2. |
Zurich Airport International AG |
118.717.159 |
R$118.717.159,00 |
25% |
Total |
- |
474.868.636 |
R$ 474.868.636,00 |
100% |
Concessionaria do Aeroporto Internacional de Confins S.A. | ||||
# |
Shareholder |
Total N° of Shares |
Capital Stock |
Percentage Over |
1. |
Sociedade de Participação no |
545.929.825 |
R$462.539.399,69 |
51% |
2. |
Empresa Brasileira de Infraestrutura |
524.520.812 |
R$444.400.599,70 |
49% |
Total |
- |
1.070.450.637 |
R$ 906.939.999,39 |
100% |
Concessionária do Bloco Sul S.A. | ||||
# |
Shareholder |
Total N° of Shares |
Capital Stock |
Percentage Over |
1. |
Companhia de Participações em Concessões* |
2.968.340.591 |
2.968.340.591,00 |
100% |
Concessionária do Bloco Central S.A. | ||||
# |
Shareholder |
Total N° of Shares |
Capital Stock |
Percentage Over |
1. |
Companhia de Participações em Concessões* |
935.704.539 |
R$ 935.704.539,00 |
100% |
Concessionária do Aeroporto da Pampulha S.A. | ||||
# |
Shareholder |
Total N° of Shares |
Capital Stock |
Percentage Over |
1. |
Companhia de Participações em Concessões* |
53.648.411 |
53.648.411,00 |
100% |
CCR USA, Inc. | ||||
# |
Shareholder |
Total N° of Shares |
Capital Stock |
Percentage Over |
1. |
CCR España Empreendimientos S.L.U.* |
1,000 |
2.800.000,00 |
100% |
* This refers to the Companies that are within the scope of the Transaction, and it is certain that the stake in each subsidiary that will be transferred to the Buyer will be limited to the shares or quotas held by CPC or the Target Companies, respectively, as negotiated in the Agreement.
Corporate Chart
Exhibit B
Concession Agreements
Country |
Concessionaire |
Granting Authority |
Contract |
Document Type |
Execution |
Term |
Amendments |
Brazil |
Concessionária do |
National Civil Aviation |
002/ANAC/2021- Sul |
Concession |
October 20, 2021 |
November 29, 2051 |
Amendment dated August 6, 2025 |
Brazil |
Concessionária do |
National Civil Aviation |
003/ANAC/2021- Central |
Concession |
October 18, 2021 |
November 24, 2051 |
N.A. |
Brazil |
Concessionária do |
State of Minas Gerais |
001/2022 |
Concession |
January 21, 2022 |
February 22, 2052 |
Amendment dated February 23, 2024 |
Brazil |
Concessionária do |
National Civil Aviation |
002/ANAC/2014- SBCF |
Concession |
April 7, 2014 |
May 5, 2044 |
Amendments dated December 19, 2017, March 23, 2018, March 6, 2019, April 22, 2020, May 7, |
Country |
Concessionaire |
Granting Authority |
Contract |
Document Type |
Execution |
Term |
Amendments |
|
5, 2024, and June 23, 2025 |
|||||||
Costa Rica |
Aeris Holding Costa |
Consejo Técnico de Aviación Civil – Civil Aviation Technical Council (CETAC) |
Unnumbered |
Contrato de |
October 10, 2000 |
May 5, 2036 |
Amendments dated April 23, 2009, June 6, 2011, July 3, 2012, October 13, 2022 and June 27, 2024. |
Equador |
Corporación Quiport |
Empresa Pública |
Unnumbered |
First Amended |
June 22, 2005 |
January 26, 2041 |
Amendments |
Curaçao |
Curaçao Airport |
HATO International |
Unnumbered |
Development Operation and Maintenance Agreement - DOMA |
April 25, 2003 |
July 31, 2033 |
Amendments |
***
Exhibit C
Existing Shareholders’ Agreements
[**]
***
Exhibits D and E
[**]
Exhibit F
Reference Capex
[**]
Exhibit 1.2(viii)(b)
List of Seller’s Individuals for the definition of “knowledge”
[**] |
* * *
. .
Exhibit 1.2(viii)(c)
List of Purchaser’s Individuals for the definition of “knowledge”
[**] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
* * *
. .
Exhibit 3.1.1
Purchase Price Breakdown
Price Allocation
Asset |
Motiva Stake |
Equity Value @100% |
Equity Value @Stake |
|
|
(R$ mm) |
(R$ mm) |
Aeroporto de Pampulha |
100.00% |
48 |
48 |
Bloco Sul |
100.00% |
1,065 |
1,065 |
Bloco Central |
100.00% |
1,257 |
1,257 |
BH Airport |
|
|
|
BH Airport (Concessionaire) |
38.25% |
1,396 |
534 |
SPAC |
75.00% |
(1) |
(1) |
Aeropuerto Internacional de Quito |
|
|
|
Quiport (Concessionaire) |
46.50% |
2,529 |
1,176 |
Quiama |
50.00% |
260 |
130 |
QH S/A |
100.00% |
(6) |
(6) |
Aeropuerto Internacional Juan Santamaría |
|
|
|
SJO (Concessionaire) |
97.15% |
507 |
493 |
IBSA |
99.64% |
- |
- |
Green Inc. |
100.00% |
159 |
159 |
SJO Holding |
99.29% |
159 |
158 |
Service and Construction Fee (received by CPC) |
100.00% |
288 |
288 |
Curaçao International Airport |
|
|
|
CAP N.V. (Concessionaire) |
79.80% |
193 |
154 |
CAI |
79.80% |
- |
- |
CPA |
80.00% |
(6) |
(5) |
Holdings |
|
|
|
CCR Emprend. S.L.U. |
100.00% |
(38) |
(38) |
CCR Conces. S.L.U. |
100.00% |
(21) |
(21) |
CPC |
100.00% |
(391) |
(391) |
Total |
|
7,398 |
5,000 |
***
. .
Exhibit 4.2.2
Illustrative Examples
[**]
Exhibit 5.1
Concession Approvals
***
Exhibit 5.2
Antitrust Approvals
* * *
Exhibit 5.3
Tagging Shareholders
[**]
Exhibit 6.1 (iv)
[**]
Exhibit 6.3 (iv)
Third Parties’ Waivers
[**]
Exhibit 6.3 (vi)
Waiver or Exercise of Call Option
* * *
Exhibit 6.6 (i)
Permitted amendments to Shareholders’ Agreements and Concession Agreements
[**]
Exhibit 6.6 (iii)
Permitted Equity Transactions
[**]
Exhibit 6.6(ix)
Retention Bonuses
[**]
Exhibit 6.6(x)
Key Employees
[**]
* * *
. .
Exhibit 6.6 (xvi)
Permitted transactions with Related Parties
[**]
***
Exhibit 7.3 (v)
Resignation Letter
[local/estado], [•] de [•] de 20[•]. |
[City/State], [•] [•]20[•] |
|
À [•] (“Companhia”) Aos cuidados do [•] [endereço completo] Ref.: Renúncia ao cargo de [•] da Companhia. Prezados Senhores, Pela presente e para todos os fins e efeitos do artigo 151 da Lei 6.404/76, o Sr. [**] [qualificação completa], com endereço profissional [•] (“Administrador Renunciante”), renuncia, em caráter irrevogável e irretratável, ao cargo de [•], para o qual foi eleito na [reunião/assembleia] realizada em [•], comprometendo-se a manter em sigilo todas as informações que me tenham sido adquiridas no respectivo período. O Administrador Renunciante, acima qualificado, declara não ter qualquer valor a receber da Companhia, e, portanto, concede à Companhia, seus acionistas e administradores nesta data, a mais ampla, plena, geral, irrevogável e irretratável quitação com relação a toda e qualquer obrigação e/ou valor devido em razão do exercício do cargo de [[•]da Companhia, bem como de quaisquer outros cargos exercidos pelo Administrador Renunciante na Companhia até a presente data, incluindo em relação a quaisquer obrigações de pagamento, execução especifica, direitos, indenizações, multas, penalidades, participação nos lucros, remuneração, |
To [•] (the “Company”) Attn.: [•] [full address] Re: Resignation from the position of [•] of the Company Dear Sirs, Pursuant to Article 151 of Law No. 6,404/76, Mr. [**] [full qualification], with professional address at [•] (the “Resigning Officer”), hereby irrevocably and irreversibly resigns from the position of [•], to which he was elected at the [meeting/shareholders’ meeting] held on [•], undertaking to maintain the confidentiality of all information acquired during his term of office. The Resigning Officer, as qualified above, declares that he has no amounts outstanding to be received from the Company and, therefore, hereby grants the Company, its shareholders and officers, on this date, the broadest, fullest, most general, irrevocable and irreversible release with respect to any and all obligations and/or amounts due in connection with the performance of his duties as [•] of the Company, as well as any other positions held by the Resigning Director in the Company to this date, including in relation to any payment obligations, specific performance, rights, indemnities, fines, penalties, profit sharing, |
|
reembolsos, bônus, prêmio, gratificação, taxas ou similares, declarando e garantindo que nada mais tem a reclamar ou a receber da Companhia, a qualquer tempo e a qualquer título. Mediante a assinatura deste termo, a Companhia outorga ao Administrador Renunciante, no que que se refere ao período em que atuou na administração da Companhia, a mais ampla, plena, geral, irrevogável e irretratável quitação, declarando não ter mais nada a reclamar ou receber do Administrador Renunciante, a qualquer tempo e a qualquer título. Atenciosamente, ________________________ [Administrador Renunciante] Ciente em: __ / __ / ___ _____________________ [Companhia] |
remuneration, reimbursements, bonuses, premiums, gratuities, fees or similar, declaring and guaranteeing that he has nothing further to claim or receive from the Company, at any time or under any title whatsoever. By executing this instrument, the Company shall grant to the Resigning Officer, with respect to the period during which he served in the management of the Company, the broadest, fullest, most general, irrevocable and irreversible release, declaring that it has no further claims or amounts to demand or receive from the Resigning Officer, at any time or under any title whatsoever. Sincerely, ___________________________ [Resigning Officer] Acknowledged on: __ / __ / ___ ___________________________ [Company] |
*.*.*
Exhibit 10.4
Replacement of Guarantees
[**]
* * *
. .
Exhibit 10.9.6
Transitional Activities
[**]
Exhibit 10.9.5
Transitional Purchase Price Adjustment
Asset |
Transitional Purchase Price Adjustment |
[**]1 |
[**] |
[**]2 |
[**] |
[**] |
[**] |
[**] |
[**] |
[**]3 |
[**] |
[**]4 |
[**] |
[**] |
[**] |
[**]5 |
[**] |
TOTAL |
56,085,748.29 |
The amounts indicated above were calculated based on the Transitional Activities listed in “Exhibit 10.9” and on the costs associated with those activities, as estimated by the Seller in the ordinary course of business. With due regards to Section 10.9.5 of the Agreement, the amounts presented above assume that the Transition Period will last for twelve (12) months, covering the last six (6) months of 2026 and the first six (6) months of 2027. Accordingly, the amounts may be subject to adjustment depending on the Closing Date, the actual duration of the Transition Period and the actual Transitional Activities provided by Seller, which will be confirmed during the Transition Committee meetings. The Parties shall, in good faith, confirm the scope of the activities to be performed and their corresponding prices in order to validate the amounts indicated above.
___________________
1 [**]
2 [**]
3 [**]
4 [**]
5 [**]
Exhibit 10.9.6
Transition Activities - Payment Schedule
Instalment |
Payment Date1 |
33% of the Transitional Purchase Price Adjustment |
On the Closing Date |
33% of the Transitional Purchase Price Adjustment |
After six (6) months as of the Closing Date |
33% of the Transitional Purchase Price Adjustment |
After twelve (12) months as of the Closing Date |
___________________
1 Considering a twelve (12) months Transition Period.
Exhibit 11.2 (viii)
Potential Regulatory Liabilities
[**]
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TRATS AS PRIVATE OR CONFIDENTIAL
Exhibit 4.25
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
Between the undersigned, on the one hand, hereinafter referred to as “the Grantors,”
(i) |
[**] of legal age, residing in the city of Bogotá, D.C., identified by National ID [**] in her capacity as Vice President of Contract Management of the National Infrastructure Agency, appointed by Resolution 20254030006115 of 2025 and sworn in by Certificate of Appointment No. 018 of May 20, 2025, in her capacity as Vice President of Contract Management of the National Infrastructure Agency, acting on behalf of and in representation of the NATIONAL INFRASTRUCTURE AGENCY, a Special-Purpose National State Agency of the Decentralized Sector of the Executive Branch of the National Government, attached to the Ministry of Transportation, as provided by Decrees 4165 of 2011, 1745 of 2013, and 746 of 2022, with legal personality, its own assets, and administrative autonomy, and which, for the purposes of this Addendum, shall hereinafter be referred to as the ANI. |
(ii) |
[**] of legal age, residing in the city of Medellín, identified by citizenship ID [**] of Itagüí, in her capacity as General Manager and legal representative of the OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, appointed by Decree No. 0041 of January 16, 2024, and sworn in by Certificate of Appointment No. 49 of January 19, 2024; a municipal entity, created by Agreement No. 55 of 1991, amended by Agreement No. 32 of 2001; legally authorized to enter into contracts, in accordance with Law 80 of 1993 and the bylaws contained in Municipal Decree 2299 of 2001, hereinafter referred to as the EPAOH. |
And on the other hand,
(iii) |
[**] identified by citizenship ID [**] who, in her capacity as First Alternate to the legal representative, acts on behalf of and in representation of CENTRAL-NORTHERN AIRPORTS |
1
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
OPERATING COMPANY S.A.S. -OACN S.A.S. and AIRPLAN S.A.S., hereinafter referred to as AIRPLAN or the Concessionaire.
We, who may collectively be referred to as the Parties, have agreed to enter into this Addendum to Concession Agreement No. 8000011-OK dated March 13, 2008, subject to the following:
I.CONSIDERATIONS
1. |
That, pursuant to Inter-Agency Agreement No. 7000284-OH-2007 of August 31, 2007, entered into between the Special Administrative Unit of Civil Aviation (AEROCIVIL) and the Olaya Herrera Airport Public Entity (EPAOH), it was agreed to carry out certain activities aimed at developing the procedures, administrative formalities, and contractual arrangements necessary for the selection and execution of a single Concession Contract for the airports owned by AEROCIVIL and the Olaya Herrera Airport in the city of Medellín. The aforementioned agreement also establishes the rights and obligations of each entity with respect to the implementation of the respective concession contract, and provides that the planned activities will be carried out jointly by AEROCIVIL, EPAOH, and the Government of Antioquía. |
2.Pursuant to the foregoing, Concession Agreement No. 8000011-OK was entered into on March 13, 2008, between AEROCIVIL and EPAOH, acting as Grantors, and the Concessionaire, the purpose of which is: “...(i) the granting by AEROCIVIL to the Concessionaire of the concession for the administration, operation, commercial exploitation, adaptation, modernization, and maintenance of Antonio Roldán Betancourt Airport, El Caraño Airport, José María Córdova Airport, Las Brujas Airport, and Los Garzones Airport, and (ii) the granting by EPAOH to the Concessionaire of the concession for the administration, operation, commercial exploitation, adaptation, modernization, and maintenance of Olaya Herrera Airport, in exchange for the remuneration set forth in Chapter III, hereinafter THE CONCESSION AGREEMENT.
2
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
3. |
That the Concession Agreement has been amended by Addendum No. 1 of March 13, 2009, Addendum No. 2 of March 14, 2011, Addendum No. 3 of July 30, 2013, and Addendum No. 4 of June 27, 2014, Addendum No. 5 of December 10, 2014, Addendum No. 6 of December 15, 2014, Addendum No. 7 of December 17, 2014, Addendum No. 8 of December 18, 2014, Addendum No. 9 dated January 20, 2015, Addendum No. 10 dated February 12, 2015, Addendum No. 11 of March 24, 2015, Addendum No. 12 of April 28, 2015, Addendum No. 13 of February 2, July 2015, Amendment No. 14 of July 30, 2015, Amendment No. 15 of October 14, 2015, Addendum No. 16 of November 4, 2015, Addendum No. 17 of December 23, 2015, Addendum No. 18 of March 10, 2016, Addendum No. 19 of May 3, 2016, Addendum No. 20 of September 1, 2016, Addendum No. 21 of May 22, 2017, Addendum No. 22 of April 4, 2018, Addendum No. 23 of December 14, 2018, Addendum No. 24 of April 8, 2022, Addendum No. 25 of December 22, 2022, and Otrosí No. 26 of December 26, 2022. |
4. |
That, pursuant to the enactment of Decree-Law 4164 of 2011, the functions set forth in paragraphs 7, 9, and 12 of Article 5, Paragraph 5 of Article 11, and Paragraph 2 of Article 17 of Decree 260 of 2004 were partially reassigned to the National Institute of Concessions (INCO), exclusively with regard to the structuring, execution, and contractual management of concession projects and any other type of public-private partnership relating to the airside and landside areas of aerodromes, as defined in accordance with the Colombian Aeronautical Regulations (RAC). |
5. |
Whereas, Article 1 of Decree-Law No. 4165 of 2011 amended the legal status and name of the National Concessions Institute (INCO), transforming it into a Special-Purpose State Agency within the decentralized sector of the Executive Branch of the National Government, attached to the Ministry of Transportation, under the name of the National Infrastructure Agency (hereinafter the ANI). |
3
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
6. |
Whereas, Articles 2 of Decree-Law 4164 of 2011 and 27 of Decree-Law 4165 of 2011 established a transition period for the reassignment of functions related to the structuring, execution, and contractual management of concession projects associated with airport areas, pursuant to which the ANI would assume these functions as of January 1, 2012, with the exception of the powers relating to the contractual management of concession contracts that had been entered into by AEROCIVIL up to that date; such powers would be assumed by the ANI for each contract as of the date of subrogation of each contract, provided that the transition period did not exceed December 31, 2013. |
7. |
The process of transferring the Concession Agreement was initiated by Resolution No. 06055 of October 31, 2013, issued by AEROCIVIL, and was completed on December 26, 2013, with the signing by the legal representatives of ANI and AEROCIVIL of the Deed of Delivery and Receipt of the aforementioned Concession Contract, thereby initiating the Contractual Management by ANI. |
8. |
That Article 28 of Law 1150 of 2007, applicable to this Addendum, provides the following regarding amendments to concession contracts: “In public works concession contracts, there may be an extension or amendment for up to sixty percent {60%} of the estimated term, regardless of the investment amount, provided that such works are additional works directly related to the subject matter of the concession or to the recovery of the investment, duly supported by technical and economic studies. With respect to road concessions, such works must pertain to the same road corridor.” |
9. |
That, by means of Ruling C-300 of 2012, the constitutionality of Article 2 of Law 1150 of 2007 was upheld, “on the understanding that the phrase ‘additional works directly related to the subject matter of the concession’ only authorizes the extension or addition of works or activities that are exceptional and strictly necessary to fulfill the purpose of the initial contract.” |
4
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
10. |
That, pursuant to Addendum No. 8 to the Concession Agreement, executed on December 18, 2014, the Parties agreed that the so-called Mandatory and Voluntary Supplementary Works provided for in the Concession Agreement must be classified as amendments to the Concession Agreement, in accordance with the opinion issued by the Consultation and Civil Service Chamber of the Council of State on August 23, 2013, under file number 11001-03-06-000-2013-00212-00 (2148) (“The Opinion of the Council of State”). Likewise, it was provided that “since the Grantors have chosen to treat the Complementary Works as contractual additions, the Parties have agreed to their execution without the need for the fulfilment of the conditions set forth in the Contract to activate the investments.” |
11. |
That, in light of the foregoing, upon the execution of Addendum No. 8 to the Concession Agreement, the Parties agreed that the additional works and activities required to be undertaken at the Concession Airports, and those agreed upon through the signing of this Addendum, shall be governed by the provisions regarding amendments to concession contracts contained in Law 1150 of 2007, in force at the time of the signing of the Concession Agreement. |
12. |
That, by means of the aforementioned Addendum No. 8 dated December 18, 2014, the Parties incorporated the maximum extension period provided for in Article 28 of Law 1150 of 2007, replacing sixty percent (60%) the minimum term from fifteen (15) to twenty-four (24) years, expiring on May 15, 2032, and the maximum term from twenty-five (25) to forty (40) years, expiring on May 15, 2048. This is so that the value of the investments associated with the additional works provided for in the aforementioned addendum, as well as those that may arise during the execution of the project—once agreed upon—may be remunerated during the maximum term of the Concession Agreement through an increase in the Expected Regulated Revenue, with the Concessionaire retaining, in any case, the risk of failing to achieve such revenue within the aforementioned maximum term. |
5
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
13. |
That the aforementioned addendum clarified that the Concessionaire was bound by the new minimum term (of 24 years) under the terms of the Concession Agreement, “undertaking to continue operating the concessioned infrastructure even if it previously achieves the Expected Regulated Revenue ...” until May 15, 2032. |
14. |
According to the projections presented in 2024 by the Concessionaire to the Aeropuertos 2014 Supervisory Consortium (formerly the Supervisory Body), the EPAOH, and the ANI, it was estimated that by the end of that year, the José María Córdova International Airport in Rionegro would exceed thirteen million (13,000,000) passengers, a figure that, in accordance with the current Airport Master Plan, was projected to be reached in 2036. These projections have already materialized, with a total of 13,491,494 passengers handled in 2022 and 13,781,543 passengers handled for the 2024 period at the José María Córdova International Airport in Rionegro. |
15. |
In accordance with the authority vested in AEROCIVIL and in line with the principle of airport planning, the ANI, through its communications ANI No. 2021-309-023073-1 dated July 29, 2021, 2022-309-002082-1 dated January 31, 2022, and 2022-309-022555-1 dated July 29, 2022, given the need to expand and modernize the José María Córdova International Airport in Rionegro, requested that AEROCIVIL review the respective Master Plans for the airports belonging to the Central-North Network, which includes the aforementioned airport, with the aim of having all the necessary technical and financial feasibility tools to carry out the review of the scope of the interventions required as needed and, consequently, an analysis of the costs |
6
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
and expenses of their implementation in order to ensure proper provision of public services and ensure high levels of service provided at the various airport terminals.
16. |
Given the unexpected increase in passenger demand at the José María Córdova International Airport in Rionegro, as reported by the Concessionaire and the Granting Authorities—a situation that is causing passenger congestion, affecting user comfort, and negatively impacting the quality of services provided at the airport terminal—the Concessionaire, EPAOH, ANI, and AEROCIVIL agreed on an immediate intervention project as a temporary measure, which includes the preparation of studies, the execution of the works, and their corresponding operation and maintenance (hereinafter the project “Immediate Interventions to Address Unexpected Demand” at the José María Córdova International Airport in Rionegro), which aims to adequately handle the current passenger flow at said airport. This alternative has been brought to the attention of and discussed with the Ministry of Transportation, the Government of Antioquia, the Mayor’s Office of the District of Medellín, and the Mayor’s Office of Rionegro, with the aim of ensuring its implementation. |
17. |
In turn, the Concessionaire has expressed its interest in signing an amendment to the Concession Agreement, through which it is agreed to add the interventions and/or activities of the project “Immediate Interventions to Address Unexpected Demand” at the José María Córdova International Airport in Rionegro, which are required to ensure the proper provision of public service, user safety, and the integrity of the infrastructure in the short term. |
18. |
That, according to the projections made, the increase in Expected Regulated Revenue resulting from the compensation for the additional works and activities set forth in this Addendum, within the framework of the project “Immediate Interventions to Address Unexpected Demand,” will be achieved substantially prior to the maximum term of the Concession Agreement, and therefore falls within the sixty percent (60%) limit provided for in Law 1150 of 2007. |
7
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
19. |
The Parties agreed to amend the 75% rule set forth in Section 10.4 and Sections 45.2 and 57.6 of the Concession Agreement, so that it would be feasible to approve interventions for the project “Immediate Interventions to Address Unexpected Demand” at the José María Córdova International Airport in Rionegro and the other five (5) airports that are part of the North Central project until the Generated Regulated Revenues have reached seventy-five percent (75%) of the value of the Projected Expected Regulated Revenues (replacing the concept of Initial Expected Regulated Revenues). However, the Parties may update the value of the Projected Expected Revenues to the extent that investment needs arise at the airports covered by Concession Agreement No. 8000011-0K-2008. |
20. |
That the Parties are duly authorized, in accordance with the provisions of the law, to agree and define by mutual consent the technical, economic, and financial conditions that will allow for the addition to the Concession Agreement of the works and activities that must be carried out at the José María Córdova Airport in Rionegro on a priority and urgent basis. |
21. |
The Parties conducted a detailed and specific technical, economic, and financial assessment of the investments required at the José María Córdova International Airport in Rionegro, in order to accurately determine the costs associated with the investments and the quality of the goods to be procured. |
22. |
That, based on the detailed budget for the works and activities required to carry out the project “Immediate Interventions to Address Unexpected Demand” at José María Córdova International Airport, the total value of the investments to be added through this Addendum, that is, the CAPEX, amounts to ONE HUNDRED SIXTY-FOUR BILLION SIX HUNDRED |
8
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
ELEVEN MILLION THREE HUNDRED NINETY-SIX THOUSAND TWO HUNDRED FORTY-FIVE ($164,611,396,245) CURRENT PESOS, equivalent to SIXTY-FIVE BILLION NINE HUNDRED THIRTY-FOUR MILLION ONE HUNDRED TWENTY THOUSAND FOUR HUNDRED TWO ($65,934,120,402) CONSTANT PESOS AS OF JANUARY 2007.
23. |
That the design, construction, maintenance, and operation of the expansion works for the air terminal at the José María Córdova International Airport in Río Negro, as provided for in this Addendum, are clearly related to the purpose of the Concession Agreement, insofar as such activities are aimed at efficiently providing services to the users of said airport, taking into account that the increase in demand has exhausted the airport terminal’s capacity to effectively provide the services rendered, while ensuring, in all cases, the provision of essential public services. |
24. |
That, for the execution of the works covered by this addendum, all necessary permits, licenses, and authorizations have been obtained, which is the responsibility of the Concessionaire, who initiated the proceedings before the ANLA, an entity that, in Official Letter No. 20233300505781 dated October 11, 2023, stated: “(...) Therefore, said activities constitute a minor change or normal adjustment within the ordinary course of the “Operation and Management of José María Córdova Airport” project, within the framework of the provisions of paragraph 1 of the aforementioned article.” Consequently, the execution of the project for interventions to address the unexpected demand at José María Córdova Airport does not require a modification of the environmental license or PMA. |
25. |
In response to the initiative by the Special Administrative Unit of Civil Aviation to allocate funds from its budget to partially cover the costs of the “Immediate interventions to address unexpected demand” at José María Cordova International Airport, on December 26, 2022, Addendum No. 26 was signed, through which it was agreed to create, within the GRANTORS’ |
9
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
SURPLUS ACCOUNT, the JMC Check Plan Works Subaccount, into which the funds contributed by Aerocivil would be deposited, in accordance with the provisions of Clause One of Derived Inter-Administrative Agreement No. 001.
26. |
As of today, according to certification No. C303700200-2875-0745 issued by the trustee Bancolombia on July 23, 2025, no contributions have been made to the “Emergency Plan Works” subaccount, created by Addendum No. 5 to the Trust Agreement. |
27. |
However, given that the GRANTORS, together with Aerocivil, have decided to terminate and settle the Derivative Inter-Administrative Agreement No. 001 to Framework Agreement No. P-C-008 of 2018, the PARTIES agree that the provisions set forth in Addendum No. 26 are no longer applicable and shall therefore be repealed in this Addendum, as the source of funding will be fully covered by the increase in the Expected Regulated Revenue (IRE). |
28. |
Furthermore, the PARTIES have determined it necessary to proceed with the modernization of the infrastructure at Los Garzones Airport in Montería, which currently handles a total of 1,587,214 annual passengers for the 2022 period and 1,478,236 for the 2024 period, exceeding the projections of the 2015 master plan, which anticipated this passenger volume for 2029 and a passenger count of 1,320,020 for 2024. Among the priorities defined for this airport are: necessary infrastructure upgrades so that the airport has the facilities required to be classified as an international airport, rehabilitation of the airport’s drainage system, and the wastewater treatment plant (WWTP). |
29. |
The Parties consider it appropriate to establish working groups and conduct a joint analysis from technical, legal, financial, and risk perspectives, in order to prioritize and agree upon, through the Concession Agreement, the necessary improvements at the other airports covered by the concession. |
10
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
These actions will be aimed at addressing, in the shortest possible time, infrastructure needs in order to ensure the continuity of service provision under conditions of safety, traffic flow, functionality, and/or security of the transportation infrastructure; to prevent its deterioration or adverse effects on the community; and to mitigate the risk of loss of State assets.
30. |
The Parties have determined that payment for the works and activities covered by the project “Immediate Interventions to Address Unexpected Demand” at the José María Córdova International Airport in Rionegro will be made through an increase in the Expected Regulated Revenue, based on the implementation and application of a marginal cash flow exercise, since this mechanism ensures greater accuracy and strict adherence to the specific variables of each addition, in accordance with the planning principle enshrined in the Law, making it possible to model the impacts of the interventions with greater precision. |
31. |
That the Project “Immediate Interventions to Address Unexpected Demand” at José María Córdova International Airport in Rionegro, which is the subject of this Addendum, shall be executed as Voluntary Complementary Works to be remunerated through an increase in Expected Regulated Revenue. The new Unregulated Revenues generated exclusively as a result of the Interventions contemplated in the subject matter of this Addendum shall be incorporated into the calculation of Generated Regulated Revenues, in accordance with the definition established in the Concession Agreement. |
32. |
By Resolution No. 02855 of September 19, 2025, the Special Administrative Unit of Civil Aviation grants a construction permit for the new Phase I and Phase II parking aprons at José María Córdova International Airport in Rionegro, in accordance with the described and approved plans, a project that forms part of the scope of the initiative known as “Immediate Interventions—to Address Unexpected Demand.” |
11
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
33. |
That the functions of supervision, evaluation, and control of the Concession Contracts for the projects assigned to the ANI are the responsibility of the Vice Presidency of Contract Management, in accordance with Decree-Law 4165 of 2011, Paragraphs 1 and 8 of Article 15. |
34. |
The monitoring and contractual management of the concession contracts assigned to EPAOH are the responsibility of the General Management and the Technical Directorate, in accordance with Resolution GG-77 of June 20, 2025. |
35. |
The Concessionaire submitted the studies and designs for the works covered by this addendum via filing No. 20244090851942 dated July 15, 2024, and EPAOH No. 202401401069RE dated July 17, 2024, which will serve as the basis for the execution of the planned interventions, in compliance with the obligations incumbent upon it under the Concession Agreement. |
36. |
That the Airport Audit Consortium 2014 (former Audit Consortium) issued the respective NO OBJECTION to the Studies and Designs via press release CIA-S-0572, filed under ANI 20244091556492 on December 11, 2024, and EPAOH No. 202401161869RE dated December 12, 2024. |
37. |
That the Airport Audit Consortium 2014 issued the respective NO OBJECTION to the CAPEX, OPEX, and REPEX through press release CIA-S-0589-2024, filed under ANI No. 20244091607152 dated December 20, 2024, and EPAOH No. 202401161935RE dated December 23, 2024. |
38. |
That the Concessionaire submitted the Marginal Cash Flow Model proposal via ANI File No. 20254091228952 dated September 26, 2025, and EPAOH No. 202501281476RE dated September 26, 2025, which supports the financial viability of the interventions contemplated in the project “Immediate Interventions to Address Unexpected Demand” at the José María Córdova |
12
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
International Airport in Rionegro.
39. |
That the CJ Airports Consortium, the current project supervisor for the concession project, issued the corresponding NO OBJECTION to the Marginal Cash Flow Model and the application of the WACC “Weighted Average Cost of Capital,” and approved the Otrosi project in a statement CACJ-CN-368-2025, filed under ANI No. 20254091233182 on September 26, 2025, and EPAOH No. 202501161477RE on September 26, 2025. |
40. |
That the ANI’s Airport Projects Management Office, through memorandum 20253090175223 dated September 29, 2025, issued a technical feasibility opinion stating that “it recommends the signing of the amending addendum to update the 75% rule, the execution of the project ‘Immediate Interventions to Address Unexpected Demand at José María Córdova International Airport in Rionegro,’ and the nullification of Otrosí No. 26 to Concession Contract No. 8000011OK of 2008.” |
41. |
The ANI’s Financial Management Department reviewed the proposal and, in Memorandum No. 20253080182893 dated October 9, 2025, issued an opinion on the feasibility of the addendum, concluding that “it considers it feasible to enter into the Contractual Amendment to Concession Contract No. 8000011-OK-2008 dated March 13, 2008, in order to agree upon the required interventions in the Central-North Airport Network, within the framework of the Concession Agreement, and to recognize the cost of the investments, as endorsed by technical professionals, with a remuneration formula for immediate interventions based on a marginal model.” |
42. |
In Memorandum No. 20257040183333 dated October 10, 2025, the Contract Management Advisory Office of the ANI’s Legal Vice Presidency stated the following: |
“This Department considers it legally feasible to sign Addendum No. 27 to carry out the works of the “Emergency Plan” for José María Córdova Airport, located in Rionegro, Antioquia, and for the airports that are part of the Concession under Contract No. 8000011-OK dated March 13, 2008 (. ..)”
“In light of the foregoing, from a legal standpoint, the Legal Department reiterates the points made in its memorandum, file number 20237040170133, dated November 14, 2023, and considers it feasible to modify the restriction on the approval of supplementary works when the amount exceeds 75% of the initial Expected Regulated Revenue; however, in accordance with the financial opinion filed via memorandum No. 20253080182893 dated October 9, 2025, this provision must be linked to the Projected Expected Regulated Revenue.”
13
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
For the reasons set forth above, Addendum No. 26 to the Concession Agreement signed on December 26, 2022, must be rescinded, whereby Clause 69.3 of the Concession Agreement was amended to create the subaccount titled ‘JMC Airport Emergency Plan Works Subaccount” (...)
43. |
That the Management of the GIT Risks of the Vice Presidency of Planning, Risks, and Environment of the ANI, through Memorandum 20256020184673 dated October 15, 2025, issued an opinion stating: |
“(...)
Recommendations
In accordance with the foregoing, the following recommendations are made:
- |
That the contract amendment document explicitly state that there will be no change in the Project’s Risk Allocation. |
- |
The document to be signed must state that the performance of the concession contract does not create any obligation and/or guarantee of revenue for the concessionaire. |
14
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
- |
The Concessionaire must obtain and submit to the Agency the necessary insurance policies to proceed with the execution of the contract and the interventions agreed upon in the contract amendment. |
- |
That the Concessionaire be required to periodically submit a report on the current status of the works carried out for the Modernization and/or Maintenance of the terminals under its responsibility. |
- |
It should be clarified, within the obligations arising from the funding of the supervision subaccount for the oversight of the works, that in the event of insufficient funds for this purpose due to causes attributable to the Concessionaire, the Concessionaire must guarantee the funds necessary to pay the Supervisor. |
- |
Evaluate the appropriateness of establishing specific enforcement and penalty mechanisms to ensure compliance with the obligations agreed upon in the analyzed amendment. |
Based on the information provided to date and the analyses conducted, there are no objections to the contractual amendment requested by the Concessionaire; without prejudice to the findings issued by the Entity’s other monitoring areas and the Audit Office. (...)”
44. |
That the EPAOH, through communications filed under EPAOH Nos. 20250110276EE dated July 29, 2025, 202501130319EE dated August 29, 2025 - 202501130321EE dated September 2, 2025, and 202501130347EE dated September 26, 2025, issued an opinion on the feasibility of the Addendum, concluding: |
15
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
“(...) From the technical, operational, property, environmental, legal-property, legal, financial, risk, and social departments, the proposed modification is feasible and is duly supported. The approvals granted by the Audit Office reflect compliance with the required contractual, financial, regulatory, and procedural requirements, as well as the reasonableness of the assumptions in the marginal model and the consistency of the proposed adjustments with the current needs of the airport system. In this context, and considering that the scope of the amendment contributes to functional strengthening, risk mitigation, and the optimization of operations under criteria of sustainability, efficiency, and legality, a favorable opinion is issued for the signing of Addendum No. 27, recommending its approval by the competent decision-making bodies (...)”
45. |
That the ANI and EPAOH confirmed the feasibility of this Addendum through the signing of the Feasibility and Convenience Study (EOC), endorsing the procedure and the guidelines formulated. |
46. |
That the ANI Contracting Committee, in a session held on December 26, 2025, recommended the signing of this Addendum. |
47. |
That the EPAOH Board of Directors Committee, at its meeting on July 25, 2025, recommended the signing of this Addendum. |
48. |
That the Parties have the legal authority and power to execute this Addendum. |
That, in light of the foregoing, the Parties:
AGREE:
CLAUSE ONE: To amend Clause 2, “Definitions,” of the Concession Agreement to include the concept of Projected Expected Regulated Revenues as follows:
16
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
“Projected Expected Regulated Revenue (IREP): This is the total amount, expressed in constant pesos as of January 2007, corresponding to the estimated revenue until May 15, 2032, and which, according to the revenue forecast model presented by the Concessionaire, amounts to $4,109,004,662.991 in constant pesos as of January 2007.
Paragraph: Given that the Projected Expected Regulated Revenues represent an estimate of revenues through May 15, 2032, and that the maximum term of the Concession Agreement is 40 years, the Parties may update the value of the Projected Expected Regulated Revenues to the extent that investment needs arise at the Airports, by executing an Addendum that endorses and adds such needs.”
SECOND CLAUSE: Effective as of this Addendum, the Parties agree to amend Section 10.4, which was in turn amended by the Third Clause of Addendum No. 8 to Clause 10 of the Concession Agreement, to read as follows:
“10.4 ADJUSTMENT OF EXPECTED REGULATED REVENUES AS REMUNERATION FOR THE EXECUTION OF SUPPLEMENTARY WORKS:
In cases where the Concessionaire, in accordance with the terms and conditions of this Agreement, performs Additional Works, the Grantors shall compensate the Concessionaire for the performance of such Additional Works by adjusting the Initial Expected Regulated Revenues. The amount of the Initial Expected Regulated Revenues is the sum of Seven Hundred Eighty Thousand Seven Million One Hundred Thirteen Thousand One Hundred Twenty-One ($780,007,113,121) pesos as of January 2007, a sum corresponding to the Concessionaire’s Financial Proposal during the Bidding Process. However, in the event that the Concessionaire, under the terms and conditions of this Contract, performs Supplementary Works, the Initial Expected Regulated Revenues shall be adjusted, in accordance with the following formula, to result in the Expected Regulated Revenues:
17
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
Whereas,
IRE = |
These are the expected regulated revenues. |
IREI = |
This is the initial expected regulated revenue ($780,007,113,121) in constant pesos as of January 2007, in accordance with the concession agreement. |
ROCi = |
This is the remuneration for Supplementary Works in constant pesos from January 2007, starting with Otrosí 8 and ending with Otrosí 23. It is included as sum ∑, taking into account that it corresponds to the cumulative value resulting from the application of the formula according to each Otrosi and the agreed remuneration agreement. |
ROCCovid = |
This is the value of the compensation for the effects of the pandemic (COVID19) in constant January 2007 pesos, in accordance with Otrosi 24. |
IREOCMgi = |
This is the compensation for supplementary works starting with Otrosi 27, estimated using the Marginal Cash Flow Model. It is included as a sum ∑ taking into account that it corresponds to the cumulative total of the results produced by each marginal model, based on each agreed-upon Otrosi and compensation agreement. |
Where each term is defined as follows:
1. |
IREI |
This is the Initial Expected Regulated Revenue, amounting to $780,007,113,121 in constant pesos from January 2007.
2. |
ROCi |
18
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
ROCi = |
This is the remuneration for supplementary works in constant pesos from January 2007, starting with Addendum 8 and ending with Addendum 23. |
|
|
VOCi = |
This is the value of the supplementary works in constant pesos from January 2007, from Addendum 8 through Addendum 23, as applicable. |
|
|
IREI = |
This is the value of the Initial Expected Regulated Revenues in constant January 2007 pesos, amounting to $780,007,113,121. |
|
|
VEO = |
This is the sum of $250,000,000,000, which is the estimated value of the investments in the Airport Adaptation and Modernization Plan in constant pesos as of January 2007. |
|
|
N = |
Time elapsed in months from the signing of the Commencement of Execution Certificate to the signing of the Commencement of Complementary Works Certificate. |
|
|
TR% = |
Real discount rate reflecting the minimum return in real terms that the Concessionaire will receive during the period in which it will not receive any remuneration for the amount to be compensated, which corresponds to a real effective rate equal to ten percent (10%). For this purpose, a real effective discount rate equal to 10% is used. |
19
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
3.ROCCovid
ROCCovid= |
The amount of compensation for the effects of the pandemic (COVID-19) in accordance with Addendum 24, which corresponds to $138,490,932,057 in constant January 2007 pesos. |
|
|
VOCCovid= |
This is the value agreed upon for COVID-19 compensation, which, in accordance with Addendum 24, amounts to $43,159,631,361 in constant pesos as of January 2007. |
|
|
IREI = |
This is the value of the Initial Expected Regulated Revenues in constant pesos as of January 2007, amounting to $780,007,113,121. |
|
|
VEO = |
This is the sum of $250,000,000,000, which is the estimated present value of the investments under the Airport Improvement and Modernization Plan in constant January 2007 pesos. |
|
|
TR% = |
Real discount rate reflecting the minimum return in real terms that the Concessionaire will receive during the period in which it will not receive any remuneration for the amount to be compensated, corresponding to a real effective rate equal to ten percent (10%). |
20
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
IRE Vigente = |
Current Expected Regulated Revenue, i.e., at the time of agreeing on the compensation, for the purposes of Addendum 24, corresponds to the sum of $2,275,809,759,421 as of January 2007. |
|
|
IRG Vigente = |
The regulated revenue in effect at the time the compensation agreement was reached, calculated as of the month prior to the date of signing Addendum 24—that is, as of August 2021—amounts to $1,121,913,990,040 at January 2007 exchange rates. |
|
|
PAF = |
Corresponds to the annual average billed in constant pesos as of January 2007, calculated using the following formula: |
N = |
Time elapsed in months from the signing of the Notice of Commencement of Enforcement to the compensation agreement for the implementation of the MOU (September 2021), which corresponds to 160 months. |
21
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
4.IREOCMg
IREOCMg = |
This is the compensation for supplementary works under Addendum 27, estimated using the Marginal Cash Flow Model. It is included as a sum ∑ taking into account that it will correspond to the cumulative result produced by each marginal model based on each agreed-upon addendum. The Concessionaire shall submit, at its own expense and risk, the Marginal Cash Flow Model, which will be reviewed by the Auditor and the Grantors in order to determine the amount by which the Expected Regulated Revenue will be increased based on the value of the works to be agreed upon, deducting from the value of the Works the Grantors’ Contribution for Complementary Works, as established in paragraph 10.5 of this clause. |
In any case, as determined in this Agreement, the execution of Supplementary Works shall not be approved when the Generated Regulated Revenues have reached seventy-five percent {75%} of the value of the Projected Expected Regulated Revenues.
The amount of the Projected Expected Regulated Revenues may be updated by the Parties when necessary for the implementation of new investments, always subject to the fixed limit of the maximum term of the Concession Agreement, in accordance with the provisions of Law 1150 of 2007.”
CLAUSE THREE: The Parties agree to partially amend Clause 45, “Execution of the Activities of the Investment and Modernization Plan,” in its Section 45.2, “Execution of Mandatory Complementary Works,” first paragraph, and Clause 57 “Execution of Voluntary Complementary Works,” in Subparagraph 57.6 “Denial of Approval for the Execution of a Voluntary Complementary Work,” sub-subparagraph (iii), which shall read as follows:
22
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
45.2Execution of Mandatory Supplementary Works:
The Mandatory Supplementary Works must be carried out by the Concessionaire as soon as the specific conditions for triggering such investment are met, as specified in Appendix C of this Agreement. If the conditions for triggering the investment corresponding to the Mandatory Complementary Works are met, after the Concessionaire’s Generated Regulated Revenues have reached more than seventy-five percent (75%) of the value of the Projected Expected Regulated Revenues (IREP), as certified by the trustee and validated by the Supervisory Board, the Concessionaire shall have no obligation to carry out the Mandatory Complementary Works; and if the Concessionaire freely decides to carry them out, it shall receive no remuneration whatsoever from the Grantors for such works. (...)
57.6 “Denial of Approval for the Execution of a Voluntary Supplementary Work”
The Grantors shall deny approval of the execution of a Voluntary Supplementary Work proposed by the Concessionaire only if any of the following conditions is met: (i) if the proposed Voluntary Supplementary Work is manifestly detrimental to the Airport in question, (ii) if, considering the value of the Voluntary Supplementary Work in question, the addition limit provided for in the regulations in force at the time of the contract’s execution is exceeded, or Regulated Revenues Generated have reached seventy-five percent (75%) of the value of the Projected Expected Regulated Revenues (PERR), as certified by the Trustee and validated by the Supervisory Body, (iv) If the Voluntary Supplementary Work is proposed to be executed before the completion of the Adaptation and Modernization Phase; or (v) If the Grantors or the Supervisor do not agree with the value of the Supplementary Work indicated by the Concessionaire upon submission thereof, as provided in Section 57.1.
23
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
Any dispute regarding the approval of Voluntary Works shall be resolved through the process of amicable settlement.”.
CLAUSE FOUR: Add to the Concession Agreement the implementation of the project “Immediate Measures to Address Unexpected Demand” at the José María Córdova International Airport in Rionegro, which consists of the construction, installation of equipment, operation, and maintenance of the measures listed in the following table, in accordance with the final values resulting from the studies and designs approved by the Supervising Authority, the ANI, and the EPAOH under the terms established in this document:
24
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
Optimization T1 - JMC - AIRPLAN | ||
3 - |
DOMESTIC-INTERNATIONAL CHECK-IN |
|
|
3A- |
BAGGAGE CLAIM SYSTEM BHS |
|
3B- |
INTERNATIONAL SECURITY FILTER |
4 - |
NATIONAL SECURITY FILTER |
|
5 - |
REMOTE BOARDING GATE |
|
|
5A- |
NEW BAGGAGE BUILDING |
|
5B- |
RENOVATION OF THE CURRENT WAITING ROOM |
6 - |
NEW PLATFORMS PHASE 1 |
|
7 - |
CONNECTIONS CENTER - PHASE 1 |
|
8 - |
EMIGRATION |
|
9 - |
IMMIGRATION |
|
10 - |
NEW PLATFORMS PHASE 2 |
|
11 - |
SECOND ROUND OF EMPLOYEE SCREENING |
|
12 - |
OVERSIZED LUGGAGE |
|
13 - |
DUAL READERS |
|
14 - |
SOCIO-ENVIRONMENTAL GUIDE |
|
15 - |
SST-SMS GUIDE |
|
16 - |
PMT |
|
PARAGRAPH ONE: The foregoing provisions, as well as all matters agreed upon in the addendum, shall be subject to monitoring by the audit committee.
SECOND PARAGRAPH: The interventions agreed upon in this Addendum have been reviewed by the ANLA, which has determined that they constitute a minor change and do not require a modification of the PMA. In any case, should the processing of any environmental permit be required, it shall be the responsibility of the Concessionaire to proceed with it.
CLAUSE FIVE—TERM: The term for the execution of the works is twelve (12) months from the date of signing the Project Commencement Certificate for the “Immediate Works to Address Unexpected Demand” at José María Córdova International Airport de Rionegro, which shall be signed by the Parties within twenty (20) business days following the signing of this Addendum.
25
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
Once the Concessionaire completes construction of each of the works agreed upon in this Addendum, Sections 45.10 and 45.11 of Clause 45 of the Concession Agreement shall apply, which set forth the procedure for the acceptance of works and verification of the Works in accordance with the previously approved Phase III studies and designs.
SECTION SIX—VALUE AND METHOD OF PAYMENT: The Parties agree that the execution of the works covered by this Addendum shall be remunerated, to be charged against the increase in the Expected Regulated Revenue provided for in this Addendum.
The cost of the work detailed in clause 4 of this addendum amounts to SIXTY-FIVE BILLION NINE HUNDRED THIRTY-FOUR MILLION ONE HUNDRED TWENTY THOUSAND FOUR HUNDRED AND TWO ($65,934,120,402) CONSTANT 2007 PESOS, and the amount to be paid through the increase in Expected Regulated Revenue for CAPEX, OPEX, REPEX, and other investments corresponds to ONE HUNDRED SIXTY-SEVEN BILLION SIXTY-NINE MILLION TWO HUNDRED THIRTY THOUSAND SIX HUNDRED FORTY-TWO ($167,069,230,642) CONSTANT PESOS AS OF JANUARY 2007,
in accordance with the cash flow model presented at the concessionaire’s own risk and expense, and endorsed by the Grantors and the supervising body, a figure that will be reflected in the Adjustment Report for Expected Regulated Revenue, which is attached, to the Works Verification Report, which shall be signed in accordance with the provisions of Clause 45 of the Concession Agreement.
CLAUSE SEVEN: The Parties agree that the project titled “Immediate Interventions to Address Unexpected Demand” at the José María Córdova International Airport in Rionegro, which is the subject of this Addendum, shall be carried out as Voluntary Supplementary Works to be compensated through an increase in the Expected Regulated Revenue.
26
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
The new Unregulated Revenues arising exclusively from the interventions contemplated in the subject matter of this Addendum shall be incorporated into the calculation of Revenues Regulated Electricity Generated, as defined in the Concession Agreement.
In this regard, given that the intervention project titled “Immediate Interventions to Address Unexpected Demand” at José María Córdova International Airport in Rionegro includes the subproject “3-CHECKIN NATIONAL-INTERNATIONAL,” which includes the construction of twenty-four (24) new counters, and that these are considered a Voluntary Complementary Project, the percentage of Unregulated Revenue generated by said counters relative to the total of existing counters is understood as Unregulated Revenue that is incorporated into the calculation of Generated Regulated Revenue.
CLAUSE EIGHT: With respect to the assets, property, and equipment incorporated pursuant to this Addendum, the Concessionaire agrees, through the year 2032, to replace them, in accordance with the terms set forth in the second paragraph of Section 2 of Appendix E of the Concession Agreement.
CLAUSE NINE: The Parties hereby add Clause 103, “FEE OF THE AUDITOR AND FUNDING OF THE AUDIT ACCOUNT,” with Paragraph One and Paragraph Two, which shall read as follows:
“Paragraph One: The fees of the Supervisor, as compensation for his duties regarding the supervision and monitoring of the works agreed upon in Addendum 27, shall amount to TWO BILLION NINE HUNDRED THIRTY-ONE MILLION ONE HUNDRED SEVENTY-SEVEN THOUSAND EIGHT HUNDRED EIGHTY-EIGHT ($2,931,177,888) in Colombian legal tender, including 19% VAT, amounting to FOUR HUNDRED SIXTY-EIGHT MILLION THREE THOUSAND ONE HUNDRED NINETY-TWO PESOS ($468,003,192), in accordance with the proposal by the CJ Airports Consortium Audit Committee.
27
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
The Concessionaire shall deposit the amount specified in this clause into the Escrow Account in the amount indicated above, through monthly payments. The first payment shall be made within five (5) business days following the signing of the Commencement Certificate and, thereafter, within the first five (5) days of each month until twelve (12) months have elapsed, in monthly installments of TWO HUNDRED FORTY-FOUR MILLION TWO HUNDRED SIXTY-FOUR THOUSAND EIGHT HUNDRED TWENTY-FOUR ($244,264,824) COLOMBIAN LEGAL CURRENCY PESOS.
SECOND PARAGRAPH: If there are insufficient funds to pay the Supervisor’s fees for the supervision of the works agreed upon in Addendum 27 due to causes attributable to the Concessionaire, resulting in a longer duration of the works, the Concessionaire must guarantee the funding of the resources required to cover the Supervisor’s payment. The foregoing is without prejudice to the Concessionaire’s other liabilities arising from the breach of its contractual obligations and shall not result in any modification of the financial terms of the Concession Agreement.
CLAUSE TEN: In accordance with the provisions of CLAUSE SIX of this addendum, and given that the source of funding for the intervention project titled “Immediate Interventions to Address Unexpected Demand” at the José María Córdova International Airport in Rionegro will be covered by an increase in Expected Regulated Revenue, THE PARTIES agree to rescind the provisions set forth in Addendum No. 26 dated December 26, 2022.
28
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
PARAGRAPH: The Concessionaire agrees to make, in a timely manner and at its own expense, the amendments necessary to the Trust Agreement to comply with the provisions of this Clause, particularly regarding the cancellation of the subaccount titled “JMC Emergency Plan Works Subaccount,” given that the project’s remuneration will be funded through an increase in the Expected Regulated Revenue.
CLAUSE ELEVEN: The Dealer, within ten (10) business days following the execution of this Addendum, undertakes to notify the insurers of the contractual policies of the execution of this document, so that such companies’ acknowledgment is documented and the necessary adjustments are made to the policies and other coverage mechanisms to ensure they reflect the agreements contained in this Addendum.
For the purposes of the Single Performance Bond, the Contractor:may add to the Single Performance Bond currently in force or obtain a new one covering the value of the works contained in this Addendum, based on the percentages and terms established in Decree 1082 of 2015, for the Performance, Wage and Social Benefits, and Stability guarantees. As for the validity period of the Performance guarantee, it must remain in effect for the term of this Addendum plus an additional 6 months. Once the works have been verified and incorporated into the Contract, their operation and maintenance will be covered by the Single Guarantee for the Maintenance Phase, currently in force, which the Concessionaire must maintain throughout the entire term of the Concession, promptly notifying the insurer for its respective update.
Furthermore, the Concessionaire must provide the Grantors with a guarantee of the stability and quality of the works, equipment, goods, and services covered by this addendum. The value of this guarantee shall be 5.4% of the value of the works (CAPEX) under this addendum. With regard to its term, this shall be equal to that stipulated in Article 2.2.1.2.3.1.14 “Sufficiency of the Guarantee of Stability and Quality of the Work” of Decree 1082 of 2015, which shall be activated once the Work Verification Certificate has been signed.
29
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
PARAGRAPH ONE: For the purposes of this clause and the granting of the guarantees, the value of the works (CAPEX) under this addendum amounts to ONE HUNDRED SIXTY-FOUR BILLION SIX HUNDRED ELEVEN MILLION THREE HUNDRED NINETY-SIX THOUSAND TWO HUNDRED FORTY AND FOUR DOLLARS AND FIFTY-NINE CENTS ($164,611,396,244.59), in local currency for the period.
SECOND PARAGRAPH: The Minutes of Commencement of the works agreed upon in this Addendum may only be signed once the policies referred to in this clause have been approved. Consequently, the execution of the works may not commence without the prior and express approval of said policies by the Grantors
CLAUSE TWELVE The Parties hereby state that the purpose of this Addendum does not modify the risk allocation framework of the Concession Agreement.
CLAUSE THIRTEEN: The other clauses of the Concession Agreement and its Addenda not modified by this Addendum remain fully and completely in force and valid.
CLAUSE FOURTEEN: The following documents form part of this Addendum:
Annex 1: Marginal Cash Flow.
Appendix 2: The Feasibility and Suitability Study and its appendices.
Appendix 3. Studies and Designs Not Objected to by the Supervisory Body Appendix 4.
30
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
CAPEX, OPEX, and REPEX Not Objected to by the Supervisory Body.
Appendix 5. Communications from EPAOH, the Supervising Body, AIRPLAN, Aerocivil, and ANI through which this addendum was approved.
CLAUSE FIFTEEN: This Addendum is executed by the signature of the parties in the city of Bogotá, D.C., on ( ) of January two thousand twenty-six (2026).
Por la Agencia Nacional de Infraestructura – ANI, |
|
Por el Establecimiento Público Aeropuerto Olaya Herrera, |
|
|
|
/s/ Milena Patricia Jiménez Hernández |
|
/s/ Doris Elena Montoya Pérez |
Milena Patricia Jiménez Hernández |
|
Doris Elena Montoya Pérez |
Vicepresidente de Gestión Contractual |
|
Gerente General |
31
ADDENDUM No. 27 TO CONCESSION AGREEMENT No. 8000011-OK-2008, ENTERED INTO BETWEEN THE NATIONAL INFRASTRUCTURE AGENCY, THE OLAYA HERRERA PUBLIC AIRPORT ESTABLISHMENT, AND CENTRAL-NORTHERN AIRPORTS OPERATING COMPANY S.A.S. - OACN S.A.S. - AIRPLAN S.A.S.
Por el Concesionario, |
|
/s/ Emiliana Villa Mejía |
Nombre: Emiliana Villa Mejía |
Primera Suplente de la Representante Legal |
32
Exhibit 8.1
List of Material Subsidiaries of Grupo Aeroportuario del Sureste, S.A.B. de C.V.
|
Shareholding |
|
|
|
|
|
|
percentage (%) |
|
|
Main activity |
Aeropuerto de Cancun, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Cozumel, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Merida, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Huatulco, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Oaxaca, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Veracruz, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Villahermosa, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Tapachula, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Aeropuerto de Minatitlan, S. A. de C. V. |
|
100 |
% |
|
Airport services |
Cancun Airport Services, S. A. de C. V. (*) |
|
100 |
% |
|
Airport services |
Aerostar Airport Holdings, LLC |
|
60 |
% |
|
Airport services |
Sociedad Operadora de Aeropuertos Centro Norte, S.A. |
|
100 |
% |
|
Airport services |
ASUR Dominicana, LLC. (*) |
|
100 |
% |
|
Commercial |
RH Asur, S. A. de C. V. |
|
100 |
% |
|
Administrative services |
Servicios Aeroportuarios del Sureste, S. A. de C. V. |
|
100 |
% |
|
Administrative services |
Asur FBO, S. A. de C. V. (*) |
|
100 |
% |
|
Administrative services |
Caribbean Logistics, S. A. de C. V. (*) |
|
100 |
% |
|
Cargo services |
Cargo RF, S. A. de C. V. (*) |
|
100 |
% |
|
Cargo services |
ASUR US Commercial Airports, LLC (*)(**) |
|
100 |
% |
|
Commercial |
(*) |
These subsidiaries sub-consolidate at Cancun Airport. |
(**) |
This subsidiary acquired on December 11, 2025, ASUR Airports, LLC (URW Airports), with a 100% ownership interest, and ASUR Airports, which in turn holds an 81.38% equity interest in its subsidiary AUSR Airports JFKT8 Innovation Partners, LLC. |
Exhibit 12.1
Certification
I, Adolfo Castro Rivas, certify that:
1. |
I have reviewed this annual report on Form 20-F of Grupo Aeroportuario, S.A.B. de C.V.; |
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report; |
4. |
The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have: |
(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
5. |
The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions): |
(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
Date: April 16, 2026 |
|
||
|
|
||
|
By: |
/s/ Adolfo Castro Rivas |
|
|
|
Name: |
Adolfo Castro Rivas |
|
|
Title: |
Chief Executive Officer & Chief Financial and Strategic Planning Officer |
Exhibit 13.1
Certification
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
(subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code)
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code), the undersigned officer of Grupo Aeroportuario del Sureste, S.A.B. de C.V. (the “Company”), does hereby certify to his knowledge that:
The annual report on Form 20-F for the year ended December 31, 2025 (the “Form 20-F”) of the Company fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 and information contained in the Form 20-F fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: April 16, 2026 |
|
||
|
|
||
|
By: |
/s/ Adolfo Castro Rivas |
|
|
|
Name: |
Adolfo Castro Rivas |
|
|
Title: |
Chief Executive Officer & Chief Financial and Strategic Planning Officer |
