ACDBE-N_Lease_Concession_Clause_-_Post-Award.pdf

04_26-IFR AVN CONC LEASE

City of Phoenix

EQUAL OPPORTUNITY DEPARTMENT

ATTACHMENT J

Airport Concession Disadvantaged Business Enterprise - Neutral (ACDBE-N)

Concession Lease Clause Post-Award

The City of Phoenix has shown a historical commitment to advancing the economic growth of small businesses through its small business programs.

The City of Phoenix’s Airport Concession Disadvantaged Business Enterprise - Neutral (ACDBE-N) Program is managed and administered by the City’s Equal Opportunity Department (EOD). Through a coordinated effort among EOD and the City of Phoenix Aviation Department, the ACDBE-N Program provides certification and opportunities in concessions at the city’s three airports..

SECTION I. DEFINITIONS

Agency means the City of Phoenix Aviation Department for the purpose of this Lease.

Airport Disadvantaged Business Enterprise (ACDBE) means a for-profit business that has successfully completed the ACDBE certification process and has been granted ACDBE status by a Unified Certification Program (UCP) member pursuant to the criteria contained in 49 Code of Federal Regulations (C.F.R.) Part 23 and 49 Code of Federal Regulation (C.F.R.) Part 26.81 and whose certification is in force at the time of the award of business by the Agency. A directory of certified ACDBE firms is located at https://utracs.azdot.gov/Search.

ACDBE-Neutral Measures means a measure or program that is or can be used to assist all Small Businesses.

Arizona Unified Certification Program (AZUCP) means a consortium of government agencies organized to provide reciprocal DBE- N certification within Arizona pursuant to 49 Code of Federal Regulations (CFR) Part 26. The official DBE-N database containing eligible DBE-N firms certified by AZUCP can be accessed at: https://utracs.azdot.gov.

Arizona’s Unified Transportation Registration and Certification System (AZ UTRACS) is a comprehensive internet-based business directory containing certified ACDBEs, DBEs and SBCs. The directory includes detailed firm profiles that include capabilities and geographic locations that can be accessed at: https://utracs.azdot.gov/Search.

City means the City of Phoenix for purposes of this Lease.

City of Phoenix Certification and Compliance System means the web-based certification and compliance system used to track and monitor Small Business Participation. The system can be accessed at: phoenix.gob2g.com.

Commercially Useful Function (CUF) as defined in 49 C.F.R. Parts 23 and 26, relates to independent performance of contractual work by an ACDBE or goods and services provider. If a Small Business does not perform or exercise responsibility for at least 30% of the total cost of its contract with its own work force, or if the Small Business subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice for the type of work involved, the Small Business is presumed not to be performing a Commercially Useful Function.

Compliance Specialist means an Agency employee responsible for Small Business Program compliance with this Lease.

Concession as defined by 49 C.F.R. Part 23, means one or more of the types of for-profit businesses that serve the traveling public listed in paragraph (A) or (B) of this definition:

A. A business, located on an airport subject to this part, that is engaged in the sale of consumer goods or services to the traveling public under an agreement with the City, another concessionaire, or the owner or lessee of a terminal, if other than the City.

B. A business conducting one or more of the following covered activities, even if it does not maintain an office, store, or other business location on an airport subject to this part, as long as the activities take place on the airport: management contracts and subcontracts, a web-based or other electronic business in a terminal or which passengers can access at the terminal, an advertising business that provides advertising displays or messages to the public on the airport, or a business that provides goods and services to concessionaires.

Contract means a legally binding agreement that creates obligation between any of the following parties to furnish concessions services (including food and beverage, retail, or other services) and the City: Concessionaire, JV partner, lessee, sublessee, subcontractor, or a Goods and Services Provider.

Contractor means firm that was awarded the given contract with the Agency, to perform the work or service as specified by the contract.

EOD means the City of Phoenix Equal Opportunity Department.

Goods and Services Providers are firms that provide goods and services that represent a CUF as a Small Business.

Joint Venture (JV) means an association between two or more persons, partnerships, corporations, or any combination thereof, formed to carry on a single business activity. The JV is limited in scope and duration to this Contract. The resources, assets, and labor of the participants must be combined in an effort to accrue profit.

Lease is a written agreement for a direct concession opportunity with the City that includes the use of space.

Lessee means an individual, partnership, JV, corporation, or firm that submits a response to, and is awarded a Contract or Lease by the City to perform services requested in accordance with applicable proucuremnet requirements.

Outreach Efforts means the diligent and good faith efforts demonstrated by a Lessee to solicit participation from interested and qualified Small Businesses. Lessee must identify and document potential business opportunities for Small Businesses, describe what efforts were undertaken to solicit Small Business participation, disclose results of negotiations with Small Businesses, and communicate and record Lessee’s selection decisions relating to Small Business participants.

https://utracs.azdot.gov/Search https://utracs.azdot.gov/ https://utracs.azdot.gov/Search https://phoenix.gob2g.com/

Participants List means a list created by the Lessee, consisting of information about all small business firms that bid or provided quotes on the solicitation. The list should include the firm’s name; address; North American Industry Classification System (NAICS) code applicable to each scope of work the firm sought to perform in its bid; age of the firm; and the annual gross receipt of the firm.

Personal Net Worth (PNW) has the same meaning as the term has in 49 C.F.R. 26.68.

Small Business (SB) means a for-profit business seeking to participate in contracts funded by the U.S. Department of Transportation (US DOT), is a Small Business Concern as defined in section 3 of the Small Business Act and Small Business Administration regulations implementing the Act (13 CFR part 121), and which does not exceed the cap on average annual gross receipts specified in 49 CFR § 23.33 seeking to participate on concession contracts. “Small Business” and “Small Business Concern” are used interchangeably in this Lease Clause.

Small Business Participation Plan (SBPP) details of the types of work or services (with projected dollar amount) that the Lessee will solicit small businesses to perform. The SBPP must include an estimated timeframe in which actual small business subcontracts will be executed. The Agency requires firms to submit a written SBPP annually throughout the life of the lease.

Sublease means a contract at any tier below the prime contract, including a purchase order.

Sublessee means a individual, partnership, joint venture, corporation, or firm that holds a contract/agreement at any tier below the Lease, including a vendor under a purchase order.

SECTION II. GENERAL REQUIREMENTS

A. Applicable Federal Regulations

This Lease is subject to ACDBE-N requirements issued by USDOT in 49 CFR Part 23. The Agency must track and report participation that occurs as a result of any procurement, goods/services, or other arrangement involving a Small Business.

For this reason, the Lessee must provide all relevant information to enable the required reporting.The following requirements apply to all small and non-small Contractors and Lessees.

B. Small Business Participation

The Agency will track the participation of all small businesses, to include ACDBEs, throughout the life of this lease. The Agency will count small business participation as authorized by federal regulations. A summary of these regulations can be found at www.ecfr.gov (49 CFR Part 26.39).

C. Small Business Participation Plan

The Lessee shall provide a Small Business Participation Plan (SBPP) on an annual basis by the anniversary of the Effective Date of the Lease. The SBPP must contain strategies to foster small business participation. It must also detail the types of subleasing/subcontracting work or services (with projected dollar amount) that the Leasee will solicit Small Businesses to perform. The SBPP must include an estimated time frame in which actual small business subcontracts would be executed.

D. Nondiscrimination/Equal Opportunity

1. Civil Rights Assurances

As a recipient of USDOT funding, the City has agreed to abide by the assurances found in 49 C.F.R. Part 23. Each Lease signed by the City and the Lessee, and each subcontract signed by the Lessee and any sublessees, must include the following assurances verbatim:

“The concessionaire or contractor, shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:

(a) Withholding monthly progress payments;

(b) Assessing sanctions;

(c) Liquidated damages; and/or

(d) Disqualifying the contractor from future bidding as non-responsible.

The concessionaire or contractor agrees to include the above statements in any subsequent agreement or contract covered by 49 CFR, Part 26, that it enters and cause those businesses to similarly include the statement in further agreements.”

Note: For purposes of the required lease and sublease language above, the Recipient is the City and the Lessee is the Concessionaire or Contractor.

2. Title VI Solicitation Notice:

The City of Phoenix, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (42 USC §§ 2000d to 2000d-4) and the Regulations, hereby notifies the Lessee that it will affirmatively ensure that for any contract entered into pursuant to this lease, all businesses will be afforded full and fair opportunity to submit bids in response to any invitation and no businesses will be discriminated against on the grounds of race, color, national origin, creed, sex, age, or disability in consideration for an award.

3. Non-Discrimination/Equal Opportunity for Lessee

In administering its ACDBE-N program, the Lessee will not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the ACDBE-N program.

The Lessee further agrees to meet the non-discrimination requirements provided in 49 CFR Part 26, §26.7 with respect to the award and performance of any concession agreement, management contract or subcontract, purchase or lease http://www.ecfr.gov/ agreement, or other agreement covered by this subpart.

The Lessee will take all necessary and reasonable steps to ensure nondiscrimination in the award and administration of contracts and agreements covered under the ACDBE-N program.

4. Compliance with Nondiscrimination Requirements During the performance of this lease, the Lessee, for itself, its subcontractors, its assignees, and successors in interest, agrees as follows:

A. Compliance with Regulations: The Lessee (hereinafter includes consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts and Authorities (Acts), as they may be amended from time to time, which are herein incorporated by reference and made a part of this lease.

B. Nondiscrimination: The Lessee, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, national origin, creed, sex, age, or disability in the selection and retention of sublessors/subcontractors, including procurements of materials and Leases of equipment. The Lessee 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 C.F.R. Part 21.

C. Solicitations for Subcontracts, including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding or negotiation made by the Lessee for work to be performed under a sublease or subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Lessee of the Lessee’s obligations under this contract and the Nondiscrimination Acts and Authorities on the grounds of race, color, national origin, creed, sex, age or disability.

D. Information and Reports: The Lessee will provide all information and reports required by the Acts, related 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 City of Phoenix or the Federal Aviation Administration (FAA) 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 Lessee will so certify to the City of Phoenix or the FAA, as appropriate, and will set forth what efforts it has made to obtain the information.

E. Sanctions for Noncompliance: In the event a Lessee is determined to be in noncompliance with the nondiscrimination provisions of this contract, the City will impose such contract sanctions as it or the FAA may determine to be appropriate, including, but not limited to:

(1) Applying administrative actions to the Lessee under the lease until the Lessee complies; and/or

(2) Cancelling, terminating, or suspending a lease, in whole or in part.

The Lessee will include provisions of paragraphs A through E in every sublease/subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto.

The Lessee will act with respect to any sublease/subcontract or procurement as the City or the FAA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided that if the Lessee becomes involved in, or is threatened with litigation by a sublessor/subcontractor, or supplier because of such direction, the Lessee may request the City to enter into any litigation to protect the interests of the City. In addition, the Lessee may request the United States to enter into the litigation to protect the interests of the United States.

SECTION III. SMALL BUSINESS PARTCIPATION EFFORTS

Phoenix Sky Harbor International Airport has a national market for small business participation and the City strongly encourages each Lessee to utilize small businesses in its sublease/subcontracting opportunities. To facilitate this, the City requires outreach to small businesses as described below.

A. Outreach Requirements

The City has implemented small business outreach requirements for this Lease. Specifically the Lessee must:

(1) Identify small-business-participation opportunities, including Commercially Useful Functions (CUF);

(2) Actively solicit proposals from small businesses;

(3) Evaluate small-business proposals; and

(4) Communicate selection decisions to small businesses, including each rejection of a small-business proposal.

The Lessee must fulfill all required small business outreach requirements in compliance with USDOT 49 C.F.R. Part 23 and submit all required outreach effort documentation on an annual basis.

B. Failure To Meet Small Business Outreach Requirements

The Equal Opportunity Department (EOD) will determine in writing whether a Lessee has satisfied all outreach requirements.

If EOD determines that the Lessee has failed to satisfy the outreach requirements, EOD may determine that the Lessee is non-compliant. The City shall send written notice to the Lessee stating the basis of their non-compliant status.

C. Outreach Administrative Reconsideration

1. If EOD determines that a Lessee is non-compliant with the Small Business Outreach requirements, the City will permit the Lessee to request EOD to reconsider this determination, in accordance with the Administrative Reconsideration provisions in the ACDBE-N Program Plan.

2. If the Lessee requests EOD to reconsider the determination of non-compliance, the Lessee must provide written notice to the City within seven (7) business days of being informed of their non-compliant status. The Lessee must make this request in writing to the following reconsideration official:

City of Phoenix Disadvantaged Enterprise Business Liaison Officer (DBELO)

Equal Opportunity Department 200 West Washington Street Phoenix, AZ 85003 Phone: (602) 262-7716 Email: contact.eod@phoenix.gov TTY: 7-1-1 Friendly

3. The Administrative Reconsideration Appeal Hearing Officer will not have played any role in the original determination.

As part of this reconsideration, the Lessee will have the opportunity to provide written documentation or argument concerning the issue. The Lessee may have the opportunity to meet with the City’s Administrative Reconsideration Appeal Hearing Officer to discuss the matter.

4. The City will send the Lessee a written decision of the reconsideration, explaining the basis of the determination, which is final. The result of the reconsideration process is not subject to administrative appeal with the USDOT at this time.

D. LEASE REQUIREMENTS

1. Subleasing Commitment The small businesses identified and accepted in the Small Business Outreach documents must have an executed sublease/subcontract in place prior to the performance of work. Executed contracts and all sublease agreements and contracts must contain the required Civil Rights Assurances and Prompt Payment provisions.

a. The Lessee will be held to the contracted Small Business Utilization Commitment percentages documented on the form EO3-200 Small Business Utilization Commitment.

b. If Lessee proposes a Joint Venture (JV) with a small business as any part of their lease, the Lessee must provide a draft copy of the JV operating agreement to the Equal Opportunity Department. Additionally, the Lessee must provide any requested JV documentation to the Equal Opportunity Department to facilitate the review and approval of the proposed JV.

2. Small Business Partcipation Plan Every year on the anniversary of the Effective Date of the Lease, the Lessee must provide the Equal Opportunity Department (EOD) with a Small Business Participation Plan (SBPP). The SBPP will detail the Lessee’s continued commitment to outreach to and engagement with small businesses. The SBPP must contain: 1) strategies to foster small business participation and 2) information concerning the small businesses.

3. Small Business Reporting The Lessee is required to comply with the Airport ACDBE-N Program Plan and 49 C.F.R. Part 23. The Lessee must track and report all revenue and all small business participation that occurs at the Airport as a result of the Lease, procurements, purchase orders, subleases, joint ventures, goods and services, or other arrangements involving sub-tier participation. Such documentation must be entered monthly into the internet-based reporting program City of Phoenix Certification & Compliance System at https://phoenix.gob2g.com throughout the life of this contract.

4. Small Business Substitution/Relief from Proposed Small Business Utilization After Lease award, the Agency will not grant relief from the proposed Small Business utilization except in extraordinary circumstances as identified in 49 CFR § 26.53(f)(3). The Lessee will not terminate any approved Small Business subcontracts, nor will the Lessee alter the scope of work or reduce the subcontract amount without EOD’s prior written approval. The Lessee’s request to modify Small Business participation must be in writing to EOD.

A Lessee’s written request must set forth the amount of relief sought, evidence that demonstrates why relief is necessary, and any additional relevant information that EOD should consider. The Lessee must include with the request all documentation of Lessee’s attempts to sublease/subcontract with the Small Business and any other action taken to locate and solicit a replacement Small Business.

Any request to alter a sublease must be submitted in writing to the EOD before any change is made. If the Lessee fails to do so, the Agency may declare the Lessee in breach of contract.

SECTION IV. RECORDS & REPORTING REQUIREMENTS

A. Records During performance of the Lease, the Lessee must keep all records necessary to document small business participation.

The Lessee must provide the records to the Agency within seventy-two (72) hours of the request and at final completion of the Lease. The Agency will prescribe the form, manner, and content of reports.

B. Records Maintenance The Agency requires the Lessee to maintain records and documents of revenues received and payments to sublessees and subcontractors, including ACDBEs, for three (3) years or according to applicable record retention requirements for the Agency’s financial assistance agreement, whichever is longer. These records will be made available for inspection upon request by any authorized representative of the Agency or USDOT. The reporting requirement extends to all Concessionaires, JV partners, sublessees, subcontractors, or Goods and Services Providers, for both small and non-small business firms.

C. Reports The Lessee is required to file the following payment reports in the City of Phoenix Certification and Compliance System:

1. Revenue or Payments By the 15th of each month, the Lessee must enter revenue and/or payment information and related supporting documentation into the City of Phoenix Certification and Compliance System.

a. The total revenues generated by small businesses during the previous month to include supporting documentation, which may include but not limited to register receipts and reports from POS systems.

b. The total payments made to small businesses during the previous month.to include supporting documentation to collaborate the payment amounts, which may include but not limited to invoices and pay receipts.

The Lessee is responsible for ensuring that small businesses confirm revenue amounts and/or receipt of payment in the City of Phoenix Certification and Compliance System by the end of each month.

https://phoenix.gob2g.com/

2. Lease Close Out

Before EOD processes the Lessee’s file for close out, the following must occur in the City of Phoenix Certification and Compliance System:

a. The Lessee” shall submit final revenue (Final) payment made to the Airport;

b. Every Concessionaire, JV partner, sublessee, subcontractor, or Goods and Services Provider must confirm “Final” payment made (or received). The Lessee is responsible for ensuring that sublessees and subcontractors confirm the receipt of full and final payment in the Phoenix Contract Compliance System.