57557 Page 1 of 1 PROCUREMENT DEPARTMENT 4 WORLD TRADE CENTER 150 GREENWICH STREET, 21ST FL. NEW YORK, NY 10007 7/23/2019 ADDENDUM # 5 To prospective Proposer(s...

Addendum #5 – RFP # 57557 Page 1 of 1 PROCUREMENT DEPARTMENT 4 WORLD TRADE CENTER 150 GREENWICH STREET, 21ST FL. NEW YORK, NY 10007 7/23/2019 ADDENDUM # 5 To prospective Proposer(s) on RFP # 57557 for Management of Retail Concessions & Loading Dock Operations at Newark Liberty International Airport. Now due back on 8/15/2019, no later than 02:00PM. CHANGES/MODIFICATIONS The following changes/modifications are hereby made to the solicitation documents: A. A draft version of the Concession Management Agreement is attached. B. Proposers are to submit blacklines of the attached agreement to be considered with their proposals. This communication should be initialed by you and annexed to your Bid upon submission. In case any Bidder fails to conform to these instructions, its Bid will nevertheless be construed as though this communication had been so physically annexed and initialed. THE PORT AUTHORITY OF NY & NJ BIDDER'S FIRM NAME: ________________________________________________ INITIALED:

____________________________________________________________ DATE: _________________________________________________________________ QUESTIONS CONCERNING THIS ADDENDUM MAY BE ADDRESSED TO JASMAINE GREEN AT jrgreen@panynj.gov OR (212) 435-4654. mailto:jrgreen@panynj.gov THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY NEWARK LIBERTY INTERNATIONAL AIRPORT TERMINAL B CONCESSION MANAGEMENT AGREEMENT ________________ between THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY and [CONTRACTOR] Dated as of [____________] TABLE OF CONTENTS ARTICLE 1 General Terms and Conditions p. 4 ARTICLE 2 Term p. 5 ARTICLE 3 Scope of Work – Concession Management Services p. 6 ARTICLE 4 Payment p. 15 ARTICLE 5 Rights of Self-Help p. 19 ARTICLE 6 Indemnity and Insurance p. 19 ARTICLE 7 Airport Manager’s Authority p. 21 ARTICLE 8 Areas Available for Contractor Use p. 21 ARTICLE 9 Intentionally Omitted p. 23 ARTICLE 10 Rights of Access and Inspection p. 23 ARTICLE 11 Audit of Records p. 23 ARTICLE 12 Federal Airport Aid p. 24 ARTICLE 13 Public Policy Requirements p. 25 ARTICLE 14 Port Authority Operational Approvals p. 27 ARTICLE 15 Intentionally Omitted p. 27 ARTICLE 16 Ownership of Materials p. 27 ARTICLE 17 Brokerage p. 28 ARTICLE 18 OFAC Representation p. 29 ARTICLE 19 Disallowed Charges p. 30 ARTICLE 20 Security p. 31 ARTICLE 21 Compliance with Applicable Laws and Governmental p. 31 Approvals and Regulations ARTICLE 22 Best Management Practices p. 33 ARTICLE 23 No Gifts, Gratuities, Offers of Employment, Etc. p. 34 ARTICLE 24 Prohibited Party p. 35 ARTICLE 25 Miscellaneous p. 36 ARTICLE 26 Entire Agreement p. 38 EXHIBITS AND SCHEDULES Schedule A Exhibit A- Exhibit B - Exhibit C - Exhibit D - Exhibit E - List of Existing Concession Tenants Services Concession Space in Terminal B Loading Dock and Storage facility Space Standard Contract Terms and Conditions Public Policy Provisions (including Schedules E, F, and G) AGREEMENT THIS AGREEMENT (hereinafter called the “agreement” or “Contract”), made as of the [___________] by and between THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY (hereinafter called the “Port Authority” or the “Authority" or the “Airport Operator”), a body corporate and politic created 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 and place of business at 4 World Trade Center, 150 Greenwich St., New York, New York 10007 and [________________] (hereinafter called "Contractor"), a [___________] organized and existing under the laws of the State of [___________] and having an office and place of business at [___________], whose representative is [___________]. W I T N E S S E T H: WHEREAS, by Chapters Forty-three and Eight Hundred and Two, respectively, of the Laws of New Jersey and the Laws of New York of 1947, as amended and now in force, the states of New York and New Jersey have authorized the Port Authority to improve, develop, operate and maintain air terminals; and WHEREAS, the Port Authority desires to see a qualified firm manage, lease (on behalf of the Port Authority) and market the concession program at Passenger Terminal B (“Terminal B”) (Terminal B being sometimes called the “Terminal”) at Newark Liberty International Airport located in the Counties of Essex and Union and in State of New Jersey (hereinafter called the “Airport” or “Facility”); and WHEREAS, 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; NOW, THEREFORE, in consideration of the fees, covenants and mutual agreements hereinafter contained, the Port Authority and the Contractor hereby covenant and agree as follows: ARTICLE 1. GENERAL TERMS AND CONDITIONS The Contractor and the Port Authority hereby acknowledge and agree that this agreement is subject to (i) “Exhibit D”, the Standard Contract Terms and Conditions and (ii) “Exhibit A”, copies of which are attached hereto and hereby made a part hereof. In the event of any inconsistency between the provisions of this agreement and those of the Standard Contract Terms and Conditions, or between the provisions of this agreement and those of any of the exhibits, the provisions of this agreement shall prevail and control. 5 DRAFT VERSION ARTICLE 2. TERM a. The term of this agreement (“Term”) shall be for a five (5) year period commencing as of [___________], at 12:01 a.m. (said date and time hereinafter called the “Commencement Date”) and, unless sooner terminated (including the right of the Port Authority to terminate this agreement upon thirty (30) days written notice to the Contractor as provided in Paragraph 14(f) of the Standard Contract Terms and Conditions and this article or extended as provided in paragraph (b) of this article, shall expire on [___________] at 11:59 p.m. (said date and time hereinafter called the “Expiration Date”). b. The Port Authority shall have the option, at its sole discretion, to extend this agreement for two additional terms, each for a duration of one (1) year. The first extension period shall commence on the day subsequent to the Expiration Date and continue for 365 days (“First Extension Term”) and the second extension period, if the Port Authority’s extension option is exercised, shall commence on the day subsequent to the expiration of the First Extension Term and continue for 365 days (“Second Extension Option Term”). The terms and conditions of such extension(s) during the First Extension Term and the Second Extension Term, as applicable, shall be on the same terms and conditions as set forth in this agreement and in effect on the day immediately preceding the relevant extension term. The Port Authority will advise the Contractor in writing, at least three (3) months prior to the Expiration Date, and thereafter (if applicable) prior to the expiration of the First Extension Term, if it elects to exercise its right to so extend the Term of this agreement. Upon the exercise of the Port Authority 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. c. The Port Authority shall have the right at any time, without cause, to terminate this agreement upon thirty (30) calendar days' written notice to the Contractor. Termination hereunder shall not relieve or discharge the Contractor 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, all of which shall survive said termination. Termination hereunder shall have the same effect as though such date was the original expiration date of this agreement. Termination pursuant hereto shall create no obligation on the part of the Port Authority other than as may be expressly set forth elsewhere in this agreement. d. In the event the Port Authority exercises its right to revoke or terminate this agreement if the Contractor shall fail to keep, perform and observe each and every promise, agreement, condition, term and provision contained in this agreement, the Contractor shall be obligated to reimburse the Port Authority for any and all personnel and reasonable legal costs (including but not limited to the cost to 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 Port Authority to 6 DRAFT VERSION exercise its revocation or termination rights and to collect all amounts due and owing to the Port Authority under this agreement. e. 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 Port Authority or to any entity designated by Port Authority (including, without limitation, the transfer of the Port Authority's property (including, without limitation, the Contractor's non-proprietary work- product). The terms of this article 2(e) shall survive the expiration or earlier termination of this agreement. ARTICLE 3. SCOPE OF WORK- CONCESSION MANAGEMENT SERVICES a. Scope of Services. The Contractor hereby agrees, subject to and in accordance with all of the terms and conditions of this agreement, to provide the following services hereafter referred to as the “Concession Management Services” or the “Services”. The Contractor shall perform, on a 24 hour per day, 7 days per week basis, all the duties normally associated with sound, safe, innovative, prudent and efficient Airport concessions management and shall provide all Services as are customary and normal to such an operation, following the Port Authority's policy direction, as such Services are identified on Exhibit A. For the avoidance of doubt, all Services shall be provided by applying Best Management Practices (as herein defined) (This paragraph supersedes the section 40 of the attached Standard Contract Terms and Conditions). b. Management Staffing. 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 (as hereinafter defined), on full-time basis a general manager and one or more assistants, the employment thereof to be subject to the prior written approval of the General Manager of the Airport, 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 concession space at the Terminal, and the loading dock and storage facilities relating to the concession space (“Concession Storage facility”) at the Terminal; to administer those leases (it being understood that the term “leases”, for purposes of this agreement, includes subleases, permits, licenses, sublicenses and the like) and agreements with tenants (it being understood that the term “tenants”, for purposes of this agreement, includes subtenants, permittees, licensees, sub-licensees, and the like), other third parties, if any, to which the Port Authority is a party or by which it is bound relating to operations at the concession space at the Terminal which is the subject of this agreement, as well as 7 DRAFT VERSION administration of agreements to be entered into by the Contractor with third parties for such third parties' services relating to the loading dock and Concession Storage facility at the Terminal; to monitor and use commercially reasonable efforts to compel performance by the above- referenced tenants and third parties under said leases and agreements relating to the concession space at the Terminal, the loading dock and Concession Storage facility (exclusive of initiating and diligently pursuing legal action to enforce the Contractor's agreements with third parties in connection with the loading dock and Concession Storage facilities), the foregoing responsibilities of the Contractor to include cooperation of Contractor with the Port Authority and its counsel in connection with such legal actions and to serve as on- site liaison with the Port Authority. The Port Authority shall be an intended third party beneficiary of all such Contractor agreements with third parties (and shall agreement shall expressly provide for this), with the right, but with no obligation, to enforce the same. The Contractor's general manager and assistant general manager(s) shall each have the power and authority on behalf of the Contractor to resolve all operational issues and the Contractor represents and warrants to the Port Authority that it shall vest such authority in the aforesaid general manager and assistant general manager(s) and the Port Authority shall be entitled to rely on this representation and warranty in its dealings with such individuals. One of either the Contractor’s general manager or assistant general manager shall be available in person at Terminal B for a minimum time span of ten (10) hours each day from Monday through Friday and six (6) hours on either Saturday or Sunday and available to meet with representatives of the Port Authority when and at the place on the Airport designated by such representatives during such hours. The same management individual(s) shall be available at other times by telephone and in an emergency situation to be able to arrive at the Airport by car within two hours after being called. If any management, supervisory or other personnel of the Contractor including, without limitation, such general manager, assistant general manager(s) or if any contractor or subcontractor, representative, employee or agent of the Contractor is deemed unsatisfactory or docs not perform the functions to be performed by the Contractor hereunder in a proper manner and satisfactory to the Port Authority, or in the determination of the Executive Director of the Port Authority has taken any action which constitutes a conflict of interest or which is inconsistent with the highest level of honesty, ethical conduct or public trust or which the said Executive Director determines is adverse to the public interest or to the best interest of the Port Authority, whichever of the foregoing shall apply as indicated in writing to the Contractor, the Contractor shall remove or cause such other entity to remove any such personnel and replace them with personnel satisfactory to the Port Authority within forty-eight (48) hours, upon notice from the Port Authority. c. Premises. The Contractor is hereby retained to perform the Services at the Airport (i) in the spaces at the Terminal shown on the exhibit attached hereto as 8 DRAFT VERSION "Exhibit B" and hereby made a part hereof and located in its passenger Concourses (on the “Concourse Level”), collectively herein the “Concourses”, the operational level (used primarily for storage) and in the Terminal' satellites (on the Concourse and Operations Levels), collectively herein the “Satellites”, and in the connectors to the satellites in the Terminal (collectively herein the “Connectors”), subject to and on the terms and conditions set forth in this agreement; and (ii) in the areas of the loading dock and Concession Storage facility shown in "Exhibit C" attached hereto and hereby made a part hereof, and further subject to (x) the Airline Leases (as defined herein); and (y) the agreements, permits, leases, tenancies, users and occupancies identified in "Schedule A" attached to this agreement and made a part hereof, the aforedescribed areas being collectively referred to as the “Premises”. The parties agree that certain space in the passenger Concourses referred to above constitutes the transverse corridor in the Terminal, which transverse corridors nevertheless exclude the Connectors and Satellites in the Terminal and exclude the escalators, staircases, elevators, restrooms, airline clubs, VIP lounges, monorail facilities and fire exit doors off of the Concourse Level which may be located on such transverse corridors. In connection with the Contractor's obligation to identify prospective tenants to enter into concession leases with the Port Authority at the Premises, this shall exclude seating areas in the food courts and traffic corridors. The Contractor acknowledges that it has received from the Port Authority or has had an opportunity to fully review copies of all of the agreements, permits, leases, tenancies, users and occupancies identified in the aforesaid Schedule A, as well as having had an opportunity to fully review copies of the applicable consumer services and non-exclusive area provisions, and any related provisions, if any, in all the Airline Leases, and represents that such review was conducted solely in connection with performing its obligations under this agreement and for no other purpose whatsoever. If the Port Authority 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 in order to meet or help meet governmental requirements, or in connection with its operation of Terminal B or the Airport, or in connection with or to facilitate or improve operations in, of, or at the Airport, or for one or more aircraft operators using the same, or to better accommodate the needs or interests of the public, then the Port Authority shall have the right to remove such area(s) from the Premises which arc the subject of this agreement. No such removal shall result, or be deemed to result, in a reduction or diminishment in any way of the Contractor's responsibilities hereunder, except that its Services would no longer be required with respect to the removed space. The term “Airline Leases” shall mean those leases in effect at the Terminal between the Port Authority, as lessor, and airlines, as lessees, at and Terminal B from time to time during the Term, as the same have been or shall be supplemented or amended, including without limitation all letter agreements entered into between the Port Authority and the relevant airline lessee(s). 9 DRAFT VERSION d. Leasing and Marketing to Unaffiliated Third Persons. In performing its Services hereunder, any and all actions taken by the Contractor hereunder or in connection with or affecting the Premises shall be subject to and in compliance with the terms of all Airline Leases, it being understood that nothing herein is intended to make the Contractor a party to any Airline Lease, but that the Contractor's performance under this agreement shall be in conformance with those terms and provisions of such Airline Leases which are relevant to the operations of the Contractor hereunder. The Port Authority shall advise the Contractor from time to time of any modifications to the Airline Leases to the extent the Port Authority determines such modifications affect the Premises and shall advise the Contractor from time to time of the terms of any new or other airline leases at the Terminal which may be entered into by the Port Authority to the extent the Port Authority determines such terms affect the Premises. At no time during the Term shall the Contractor or any affiliate of the Contractor conduct any concession activity in the Premises involving the sale or offer by it of goods or services, 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 specified by the Port Authority as part of any such approval. For purposes of this agreement, the term “affiliate” shall mean any person that directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Contractor and any entity in which the Contractor or any member or manager of the Contractor (or general or limited partner or shareholder of any such member of manager) has an ownership, licensor/licensee or franchiser/franchisee interest or relationship, but if the Contractor shall be a corporation whose voting securities shall be registered with the Securities and Exchange Commission and publicly traded on a regular basis then only such shareholder of the Contractor having an ownership interest greater than five percent (5%). The term “control” (including the terms controlling, controlled by and under common control with) means the possession, direct or indirect, 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. e. Reserved Uses. (i) The Port Authority 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 of the following uses, operations or installations at Terminal B (collectively, the "Reserved Uses"): a. advertising (other than (x) branding and (y) promotions by concessionaires or Airlines in non-public, exclusive spaces), 10 DRAFT VERSION including static display, interactive display, screensavers or programs on any electronic device, audio-visual display, broadcast and other; b. except as noted herein, cellphone/cellular technology and any technology or system that substitutes for, replaces or is used in conjunction with cellphone/cellular technology; c. except as noted herein, the technology commonly known as Wi-Fi, and any technology or system that substitutes for, replaces or is used in conjunction with Wi-Fi and also including all Port Authority-owned or operated information and communications technology infrastructure for common Airport use; d. public telephones (sometimes also referred to as pay phones or pay telephones), pre-paid phone cards, facsimile transmission machines and other public communications services and facilities; e. vending machines other than automated retail machines and food and beverage vending machines in non-public spaces; f. concierge services (i.e., a welcome center or other location which offers a variety of services for passengers (including, but not limited to, hotel reservations, sale of entertainment events tickets and lottery tickets, luggage storage and delivery, sightseeing tours, business services and provision of touring information)); g. ground transportation, including vehicle rentals and taxi dispatchers and preferential allocation of or access to ground transportation services at other parts of the Airport; h. provision of on-Airport baggage carts or other on-Airport baggage-moving devices (other than shopping carts made available free of charge to retail shoppers within the Concessions space) or other on-Airport baggage-moving devices (other than the baggage system); i. any and all sponsorship and naming rights available to the Port Authority at the Airport; j. premium or convenience services or space offered at Terminal B or at other parts of the Airport other than such services or spaces within the exclusive use spaces of the concessionaire provided free of charge; 11 DRAFT VERSION k. such further uses, operations or installations that may arise through any technological development or emerging technology (including opportunities generated by the collection, use or transfer of passenger data) that the Port Authority may determine at any time during the Term constitute Reserved Uses; l. any public or airline passenger-related transit facilities; and m. facilities and uses not contemplated in this agreement, including hotel accommodations. (ii) The Port Authority will be entitled to receive and retain all rents, fees, profits and other consideration derived from the Reserved Uses. (iii) Prohibition with respect to Reserved Uses a. The Contractor: i. Shall not implement, conduct or control, and shall not receive any fees, rents or profits with respect to, the Reserved Uses without the prior written consent of the Port Authority; and ii. Shall ensure that no concessionaire implements, conducts or controls, or receives any fees, rents or profits with respect to, the Reserved Uses, without the prior written consent of the Port Authority. (iv) Wi-Fi and Cellular Service a. With respect to Wi-Fi or cell phone technology (and any technology or system that substitutes for, replaces or is used in conjunction therewith), the Contractor will be permitted to provide such services at Terminal B facility; provided, that the Contractor complies with all terms and conditions imposed by the Port Authority with respect thereto, including the terms set out herein. f. Customer Service. (i) From time to time during the Term, the Port Authority shall conduct or cause to be conducted customer service surveys on-site at both Terminals. The Contractor shall not interfere with, obstruct, delay or otherwise hinder the process taking such surveys. Moreover, the Contractor shall participate and cooperate with the Port Authority and its designees with regard to such surveys, by way of example only, by making space available, providing surveys to concession customers for completion, collecting surveys upon completion and delivering same to the Port Authority, and 12 DRAFT VERSION otherwise undertaking managerial and administrative functions requested by the Port Authority related to survey-taking. Neither the Port Authority nor any person or entity retained by it to conduct a survey shall have any obligation to compensate the Contractor for the above-described participation and cooperation. (ii). The Contractor shall provide for training in customer service techniques and other concession-related matters for its staff on a quarterly basis, and perform such other customer service functions as may be identified in Exhibit A hereto. g. Monthly Reporting. Without limiting the generality of Exhibit A hereto, the Contractor shall submit to the Port Authority monthly concession summary reports on a tenant-by-tenant, concession category-by-concession category, which shall include, without limitation, the following: (i) Gross receipts per tenant, gross receipts per Enplaned Passenger (based on the Port Authority's determination of the number of Enplaned Passengers at the Terminal for the immediately preceding calendar year then ended, as provided by the Port Authority to the Contractor in writing), gross receipts per square foot and gross receipts per concession category. (a) The term "Enplaned Passenger" shall mean any local originating or connecting passenger determined by the Port Authority to have boarded an aircraft at Terminal B, excluding passengers who disembarked and re-boarded the same aircraft with the same flight number for the purpose of continuing their journey. The Contractor hereby acknowledges that the Port Authority's determination as to the actual number of Enplaned Passengers is final and binding and that it will based in whole or in part on information supplied to it by various airlines and aircraft operators using the Terminal for a portion or all of their flights at the Airport.; (b) The term “Gross Receipts” shall include all monies paid or payable to the Contractor for sales made and for services rendered at or from the Terminal, regardless of when or where the order therefor is received, and outside the Terminal, if the order therefor is received at the Terminal, and any other revenues of any type arising out of or in connection with the Contractor’s operations at the Terminal provided, however, that any taxes imposed by law which are separately stated to and paid by the customer and directly payable to the taxing authority by the Contractor, shall be excluded therefrom. 13 DRAFT VERSION (ii) Total gross receipts; (iii) Effective rent on a monthly basis for each tenant (as defined herein), for each Terminal; and (iv) Amount of arrearage (including breakdown of type of arrearage) for each tenant (as defined herein). h. Lease Administration and Compliance. Without limiting the generality of Exhibit A, except as otherwise specifically directed or consented to in writing by the Port Authority, the Contractor shall not take any action to terminate any of the leases identified in Schedule A (or any new leases entered into during the Term) with or without cause, to amend or extend any such leases, to waive, surrender, compromise or jeopardize any right or privilege of the Port Authority under or respect to any said leases, or to pursue any remedies or relief to which the Port Authority shall be entitled thereunder or as a matter of law, including but not limited to accepting any compromise or settlement of an arrearage or disputed amount. The Contractor shall cooperate with the Port Authority in the latter's collection efforts; provided, however, the Contractor shall be responsible for any and all internal corporate costs and expenses incurred by it in connection with such collection efforts but shall not be required to incur any other out-of-pocket costs or expenses. As approved by the Port Authority, the Contractor's Services shall include, among other things, negotiation of leases (using only agreements in form and substance prepared by and satisfactory to the Port Authority), coordination of tenant design and construction work, and negotiation of relocations, amendments or modifications, but no arrangement negotiated by the Contractor shall be or be deemed enforceable against or binding upon the Port Authority unless and until a fully executed lease, or amendment thereto, has been entered into between the Port Authority and a prospective tenant, and any arrangement or agreement to which the Port Authority has not consented in writing shall be void ab initio and of no force or effect. Any and all construction work done by or on behalf of tenants at the Terminal shall be done in accordance with plans and specifications to be submitted to and approved by 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 tenant shall continue to resubmit plans and specifications as required by the Port Authority. agreements entered into between the Contractor and third-party contractors shall be the responsibility of Contractor and the cost and expense of defending or bringing any claims by or against third party contractors shall be the sole responsibility of the Contractor. i. Cleaning and Maintenance The Contractor shall use commercially reasonable efforts to ensure 14 DRAFT VERSION that tenants perform preventive maintenance by regularly cleaning, repairing and maintaining (other than structurally): (x) all grease traps in all drainage pipes exclusively used in operations at the Premises, whether such pipes are located on the Premises or elsewhere at the Terminal, and (y) all kitchen exhaust ducts including the replacement of all filters where such ducts are exclusively used by tenants in such operations and whether such ducts are located on the Premises or elsewhere at the Terminal. As part of the tenants' 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 the tenants' sole cost and expense. In addition, should any corrective work be necessary for any portion of the grease traps, hood and ventilation system, the tenants shall be responsible for the immediate repair and cost, whether such repair is required inside the unit or outside the unit. Tenants shall be required to provide documentation of all of such work to the Contractor which shall be supplied to the Port Authority on or before the twentieth (20th) day of each calendar month, relating to servicing during the preceding calendar month to the extent such documentation has in fact been provided by the tenants to Contractor. j. Street Pricing (i) The Contractor shall ensure that each concessionaire does not charge prices to its customers in excess of the "Street Prices" determined in accordance with subsection (2) hereof, or such other street pricing policy as may be adopted by the Port Authority from time to time. (ii) "Street Prices" will be determined as follows: a. if the concessionaire conducts a similar business in one or more off-Airport locations in the Greater New York City- Northern New Jersey Metropolitan Area (the "Metro Area"), "Street Prices" means the price regularly charged by the concessionaire for the same or similar item in the Metro Area; b. if the concessionaire does not conduct a similar business in one or more off-Airport locations in the Metro Area, "Street Prices" means the average price regularly charged in the Metro Area by similar retailers for the same or similar item; c. if neither the concessionaire nor other similar retailers sell a particular item in the Metro Area, "Street Prices" means 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 that area and the Metro Area; and 15 DRAFT VERSION d. if a concessionaire is in the business of selling duty-free goods, "Street Prices" means the price regularly charged by the concessionaire or other similar concession operators for the same or similar duty-free items at other major airports serving large urban areas in the northeast region of the United States of America, including the Airport. (iii)The Contractor shall post, and shall ensure that all concessionaires post, in each sales area at the Terminal (including any temporary sales space), a notice in form and substance satisfactory to the Port Authority informing the public that the Contractor (or the concessionaire, as applicable) subscribes to a Street Pricing policy, and that policy shall be clearly visible and unobstructed. (iv) If the Contractor or a concessionaire, as applicable, charges any price to a customer in excess of the price that would satisfy the Street Pricing policy, in violation of its obligations under this agreement or concessionaire agreement, the amount of the excess will constitute an overcharge that shall, upon demand by the Port Authority or the Contractor's customer (or a concessionaire’s customer, as applicable), be promptly refunded to the customer. (v) For purposes of establishing the Street Price of an item, any difference in the size or quality of a product or service will constitute the basis for a price differential. (vi) Street Pricing Report. Within thirty (30) days after the end of each calendar year, the Contractor shall deliver to the Port Authority a report for each concessionaire that compares prices for a representative sample of products (which representative sample of products shall be agreed by the Port Authority and the Contractor) to the same or substantially similar products sold in comparable locations, demonstrating that the Contractor and each relevant concessionaire is in compliance with the pricing requirements described in this section. ARTICLE 4. PAYMENT a) Subject to the provisions of this agreement, the Port Authority shall pay to the Contractor an annual management fee ("Management Fee") for each calendar year or portion thereof during the Term ("Contract Year"). The Management Fee will be derived from total Gross Receipts generated during the Term from the Concession operations at the Terminal, both Concession operations which are existing as of the Commencement Date and those developed thereafter, which are developed, leased, managed and marketed by the Contractor under this agreement, and specifically excluding revenues relating to Port Authority Reserved Uses. 16 DRAFT VERSION 1. ____ percent (___%) of all tenant Gross Receipts generated in the Terminal which are up to _____Dollars ($______) in any Contract Year; plus, 2. One and three-quarter percent (____%) of all tenant Gross Receipts generated in the Terminal which arc between ________ and 01/100 Dollars ($________.01) and _________ Dollars ($________) in any Contract Year; plus, 3. ________ percent (________%) of all tenant Gross Receipts generated in the Terminal which are in excess of _________ Dollars ($___________) in any Contract Year. b) Management Fees shall be payable on a monthly basis, to be calculated in accordance with the percentages and applicable cumulative tenant Gross Receipts amounts referenced in paragraph (a), above, as such cumulative tenant Gross Receipts are achieved on the last day of each month during each Contract Year. Payment of Management Fees shall commence on the first date of the month following the Commencement Date and continue through and including the Expiration Date of the Term. The procedure for making said monthly payment of Management Fees and third party vendor fees shall be as follows: Contractor shall invoice the Port Authority for its Management Fee for the preceding month just ended, and shall invoice the Port Authority for any other fees charged by third party vendors retained by the Contractor in relation to certain Services to be provided in the management of the concession programs in the Terminal including but not limited to loading dock services, product distribution services and marketing and promotional activities (which marketing/promotional activities and materials relating thereto may include secret shopping services, customer service training services, and visual merchandising services), all of which must be approved in advance by the Port Authority from time to time. The funds for the foregoing third party vendor services shall be initially collected by the Port Authority on a monthly basis from tenants pursuant to tenants' leases, as additional rentals/fees. Invoicing by the Contractor to the Port Authority shall occur after the collected amount of tenants' rentals/fees paid to the Port Authority have first been delivered to the Port Authority by the Contractor for each calendar month (i.e., the basic rent/fee collected for the prior month; percentage rent/fee collected for the month immediately preceding the prior month as defined herein; and additional collected rentals/fees). The Contractor's invoices for reimbursement of third party vendor fees as described above will be paid within thirty (30) days of receipt so that the Contractor shall have sufficient funds at all times to pay third party vendors providing services to the Contractor for loading dock services and promotion/marketing activities and the Contractor's invoices for its Management Fees similarly will be paid within thirty (30) days of receipt. c) (i) Within forty-five (45) calendar days after the end of each Contract Year during the Term there shall be a reconciliation of the Management Fees and third party vendor fees due to the Contractor against the amount of Management Fees and third party vendor fees theretofore paid to the Contractor during the Contract Year just ended. Any required 17 DRAFT VERSION adjustment as a result of the reconciliation shall be made in the form of a reduction (if an excess amount previously paid by the Port Authority) or an increase (if a shortfall exists in the amount previously paid by the Port Authority) in the next accruing monthly payment of the Management Fee and third party vendor fees, as the case may be; provided, however, that at the expiration or earlier termination of this agreement any required adjustment shall be in the form of an offset against any amounts otherwise due to the Contractor by the Port Authority, or a reconciliation payment in favor of the Contractor, as the case may be. All out-of-pocket, and internal administrative, managerial and other corporate, costs and expenses (whether such costs and expenses are those of the Contractor's home office, the Contractor's operations at the Airport, or otherwise) incurred by the Contractor in connection with this agreement shall be the sole responsibility of the Contractor and Contractor expressly agrees that it shall not seek any reimbursement from the Port Authority for same. The Management Fee shall not be decreased in the event of a reduction of the Premises (or a part thereof), nor increased in the event of an expansion to or relocation of the Premises (or a part thereof), at the Terminal, regardless of the reason(s) for such reduction, expansion and/or relocation; provided, however, that a reduction in the Premises and/or Concession Storage facility may be made by the Port Authority as described below. (ii) With respect to any space in the Terminal(s) as to which the Contractor is providing Services, including without limitation any space which constitutes a Concession Storage facility, the Port Authority may, at any time or times during the term of this agreement, deem it advisable in its sole and absolute judgment, to recapture or reduce such space so as to remove it from the subject of this agreement in order to meet or help meet governmental requirements, or in connection with its operation of the Terminal or the Airport, or in connection with or to facilitate or improve operations of one or more aircraft operators using the Terminal or the Airport, or for any purpose which is in the public interest, all as determined by the Port Authority. Such recapture or reduction shall not release the Contractor of any liabilities or obligations under this agreement as to such recaptured or reduced space accruing through the effective date of such recapture or reduction (but Contractor shall no longer have the obligation to perform its Services for any such removed space from and after such effective date), and shall not release or modify to any extent any of the Contractor's other obligations under the agreement or entitle it to any claim against or compensation from the Port Authority. d) Upon the Commencement Date, the Contractor shall assume responsibility for the rent collection from the concession tenants in the Premises. The Port Authority shall direct the concession tenants to remit their rental payments and fees payable to the Port Authority directly to the Contractor as its collection agent (rather than to the Port Authority or any previous contractor) for deposit, beginning with the first full month following the Commencement Date. On the 30th day of each month during the Term and any months following the expiration or earlier termination necessary to account for all tenant payments received, the Contractor shall render to the Port Authority a statement identifying all funds received by the Contractor from tenants in the payment of rents/fees, including any fees assessed to the tenants for services performed by third party vendors. Contractor shall prepare such statement in a form acceptable to the Port Authority. Tenant 18 DRAFT VERSION shall be identified by name, type (e.g., retail, food and beverage) and Terminal. The items which constitute deposits from tenants received and, accordingly, the items which shall be reflected on such monthly statements, shall include the following: (i) any and all basic rent received from the tenants for the month in which the statement is made (together with any arrearages in basic rent received by the Contractor from tenants for any prior periods). Basic rent (also referred to as fixed rent or minimum guaranteed rent) is payable from tenants in monthly installments in advance on the first day of each current month; (ii) any and all percentage rent received from tenants for the prior month (the percentage rent payment received, if any, for sales in the month prior to which the statement is made). Percentage rent is payable following the end of the month for which percentage rent is due, i.e., the prior month; (iii) any and all other fees and payments received from tenants (for example, late fees, promotion/marketing fees, food court maintenance fees, loading dock fees, other third party vendor fees (if any are pre- approved by the Port Authority), and any fees imposed on the tenants by the Contractor in Terminal B associated with the trash compactor and card board bailer). The Contractor acknowledges that the Management Fee is paid in arrears, and not in advance, of each monthly period. Inasmuch as any and all amounts received by the Contractor and payable to the Port Authority shall be held by the Contractor in trust for the Port Authority, as described below, such amounts shall be, and be deemed to be, solely the property of the Port Authority. With respect to any pre-approved third party service vendor fees relating solely and only to loading dock operations, the Port Authority acknowledges that the Contractor may invoice the Port Authority in advance of each monthly period for the estimated amounts necessary to pay its third party service vendor(s) for such loading dock operations for amounts due for such month. All estimated amounts for loading dock operations so invoiced shall be reconciled against the actual amounts due and paid to any such third-party service vendor(s) following the end of each month. e) At any time that the Port Authority permits Contractor to serve as a collection agent for the Port Authority with respect to all amounts paid by tenants and any other amounts that would otherwise be paid directly to the Port Authority hereunder, several requirements shall be met by Contractor. Such requirements include, without limitation, the following: (i) Contractor shall be deemed, and shall hold itself out as, a fiduciary vis-a-vis the Port Authority; 19 DRAFT VERSION (ii) Contractor shall hold all rents and other fees received by it in a separate account in trust for the Port Authority in which Contractor may not commingle such rents and fees with any of Contractor's other revenues, at an institution acceptable to the Port Authority having an office within the New York-New Jersey metropolitan area and qualified to do business in the States of New York or New Jersey; (iii) Contractor shall obtain additional protections on behalf of the Port Authority, including a written agreement by the institution at which the account is located providing for access by the Port Authority to the funds on deposit in such account in the event of insolvency, appointment of a receiver, bankruptcy action (whether voluntary or involuntary), or creditor's lien; (iv) Contractor shall obtain insurance protecting against employee dishonesty, embezzlement, theft, etc. in amounts and otherwise in a form acceptable to the Port Authority and naming the Port Authority as additional insured thereunder; and (v) any other reasonable requirements of the Port Authority with respect to collection of such rents and fees by the Contractor. ARTICLE 5. RIGHTS OF SELF-HELP a) If the Contractor fails to perform any of its obligations under this agreement within the time period specified in this agreement (or if no time period is specified, within fifteen (15) Business Days after notice from the Port Authority), then the Port Authority may perform such obligations without further notice. b) In the event of an emergency, the Port Authority may perform any of the Contractor's obligations in order to alleviate such emergency without providing any cure period or notice to the Contractor. c) Nothing in this agreement, including this section, will impose any duty on the Port Authority to perform any obligation required to be performed by the Contractor and the performance of any of the Contractor's obligations by the Port Authority will not constitute a waiver of the Contractor’s default in failing to perform the same. d) Any action taken by the Port Authority in accordance with this section will not be deemed a breach of this agreement by the Port Authority, will not expose the Port Authority to any liability to the Contractor and will not entitle the Contractor to any remedy. e) The Port Authority's remedy under this section shall not limit any other remedies available to it under this agreement, under law or otherwise. 20 DRAFT VERSION ARTICLE 6. INDEMNITY AND INSURANCE [INSURANCE RESERVED] To the full extent allowed by law, the Contractor shall indemnify and hold harmless the Port Authority, its Commissioners, officers, representatives, employees and agents from and against all claims and demands, just or unjust, of third persons arising out of or in any way connected or alleged to arise out of or alleged to be in any way connected with the Contract and all Services and activities of the Contractor under this Contract and for all expenses incurred by it and by them in the defense, settlement or satisfaction thereof, including without limitation thereto, claims and demands for death, for personal injury or for loss of or damage to property, direct or consequential, whether they arise from the acts or omissions of the Contractor (including, without limitation, its officers, employees, contractors or agents), or from any breach of this agreement by Contractor or act or omission which is beyond the scope of Contractor's authority under this agreement, including claims and demands of any local jurisdiction against the Port Authority in connection with this Contract. As between the Contractor and the Port Authority, the Contractor assumes the following risks, whether such risks arise from acts or omissions (negligent or not) of the Contractor, the Port Authority or third persons or from any other cause, excepting only risks occasioned solely by the gross negligence or willful misconduct of the Port Authority, and shall to the extent permitted by law indemnify the Port Authority for all loss or damage incurred in connection with such risks: a. The risk of any and all loss or damage to Port Authority property, equipment (including but not limited to automotive and/or mobile equipment), materials and possessions, on or off the premises, the loss or damage of which shall arise out of the Contractor's operations hereunder. The Contractor shall if so directed by the Port Authority, repair, replace or rebuild to the satisfaction of the Port Authority, any and all parts of the premises or the Facility which may be damaged or destroyed by the acts or omissions of the Contractor, its officers, agents, or employees and if the Contractor shall fail so to repair, replace, or rebuild with due diligence the Port Authority may, at its option, perform any of the foregoing work and the Contractor shall pay to the Port Authority the actual cost thereof. b. The risk of any and all loss or damage of the Contractor's property, equipment (including but not limited to automotive and/or mobile equipment) materials and possessions on the Facility. c. The risk of claim, whether made against the Contractor or the Port Authority, 21 DRAFT VERSION for any and all loss or damages occurring to any property, equipment (including but not limited to automotive and/or mobile equipment), materials and possessions of the Contractor's agents, employees, material men and others performing work hereunder. d. The risk of claims for injuries, damage or loss of any kind, just or unjust, of third persons arising or alleged to arise out of the performance of work hereunder, whether such claims are made against the Contractor or the Port Authority. If so directed, the Contractor shall, at its own expense, defend any suit based upon any such claim or demand, even if such suit, claim or demand is groundless, false or fraudulent, and in handling such shall not, without obtaining express advance permission from the General Counsel of the Port Authority, raise any defense involving in any way the jurisdiction of the tribunal over the person of the Port Authority, the immunity of the Port Authority, its Commissioners, officers, agents or employees, the governmental nature of the Port Authority or the provision of any statutes respecting suits against the Port Authority. Neither the requirements of the Port Authority under this Contract, nor of the Port Authority of the methods of performance hereunder nor the failure of the Port Authority to call attention to improper or inadequate methods or to require a change in the method of perfom1ance hereunder nor the failure of the Port Authority to direct the Contractor to take any particular precaution or other action or to refrain from doing any particular thing shall relieve the Contractor of its liability for injuries to persons or damage to property arising out of its operations. ARTICLE 7. AIRPORT MANAGER'S AUTHORITY The terms “Airport Manager” or “Manager” shall mean the person or persons from time to time designated by the Port Authority to exercise the powers and functions vested in the General Manager of New Jersey Airports at the time of this agreement, or his or her duly authorized representative. In the performance of this agreement, the Contractor shall conform to all orders, directions and requirements of the Airport Manager and shall perform this agreement to the satisfaction of the Airport Manager at such times and places, by such methods and in such manner and sequence as the Airport Manager may require, and the Contractor's performance shall at all stages be subject to his/her inspection. The Airport Manager shall determine the amount, quality, acceptability and fitness of all parts of the Services and shall interpret the specifications. Upon request, the Airport Manager shall confirm in writing any oral order, direction, requirement, or determination. 22 DRAFT VERSION ARTICLE 8. AREAS AVAILABLE FOR CONTRACTOR USE a) During the Term, the managerial and administrative staff of the Contractor shall have the use of no less than 1,000 square feet of office space at 35 Terminal B- Building 74, designated and provided by the Port Authority to be used by managerial and administrative personnel only, solely in connection with the management/administrative functions referred to above. Such space shall be furnished (i.e., desk and chairs) but shall not be equipped (e.g., with copiers, facsimile machines, printers, computers and related hardware, as well as trade fixtures) by the Port Authority and no representation or covenant is made by the Port Authority that it will be suitable for the Contractor's purposes as described above. Utilities services to such office space shall be supplied by the Port Authority and paid for as hereinafter described. The Port Authority shall provide, at no cost to the Contractor, electricity at such office space to be used by the Contractor solely for lighting and the operation of small business machines and routine office computers serving only the aforesaid functions of the Contractor at the Terminal, on the same basis, including under the same limitations and conditions, as applicable generally to tenants of the Port Authority in similar space at the Airport who pay for electricity. Heating and air-conditioning shall also be supplied to the office space on the same basis as applicable to electricity as aforesaid. No other utility or service will be supplied to or for such office space by the Port Authority. b) The Port Authority, its officers, employees and representatives shall have the right, at all times during normal office business hours, to enter upon the facilities and/or office space provided the Contractor for the purpose of inspecting the same, for observing the performance of the Contractor of its obligations under this agreement, and for the doing of any act or duty which the Port Authority may be obligated or have the right to do under this agreement or otherwise. c) The Contractor acknowledges that it has examined the space to be used for office purposes carefully and hereby accepts the same in its present condition. The Contractor shall repair all damage to the office space and all damage to fixtures, improvements, and personal property of the Port Authority which may now or may hereafter be located thereon, which may be caused by the operations of the Contractor under this 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. The Contractor is responsible for cleaning and maintenance of office space. Contractor shall not be responsible for making any improvements to such office space, and shall not be responsible for the aforesaid damage, if any, which may have occurred prior to the Commencement Date, but shall be responsible for routine cleaning, maintenance and repair at and to such office space during the Term. d) The Contractor acknowledges and agrees that no relationship of landlord and 23 DRAFT VERSION tenant or licensor and licensee is created or intended to be created hereunder and that the use of any space or other facilities by the Contractor is merely incident to and dependent upon its operations hereunder as a Port Authority contractor. Upon the expiration or earlier termination or revocation of this agreement, or upon a change of office space, the Contractor shall remove its equipment, materials, supplies, and other personal property from the Premises. If the Contractor shall fail to remove its property on or before the expiration, termination or revocation of this agreement, or upon a change of office space, the Port Authority 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 Port Authority 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 Port Authority upon demand. e) 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 Airport 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 Port Authority and in the event any construction, improvements, alterations, modifications, additions, repairs or replacements are made without such approval, then upon notice so to do, the Contractor will remove the same, or at the option of the Port Authority, cause the same to be changed to the satisfaction of the Port Authority, at the sole expense of the Contractor. In case of any failure on the part of the Contractor to comply with such notice, the Port Authority may effect the removal or change and the Contractor shall pay the cost thereof to the Port Authority on demand. ARTICLE 9. INTENTIONALLY OMITTED ARTICLE 10. RIGHT OF ACCESS AND INSPECTION The Port Authority reserves the right to observe, monitor, review, and inspect any aspect of the Concession Management Services at the Terminal or the Contractor's operations at any time. ARTICLE 11. AUDIT OF RECORDS a) All statements required hereunder shall be prepared in accordance with sound accounting practice acceptable to the Port Authority and sworn to by a responsible 24 DRAFT VERSION fiscal officer of the Contractor. Submission of a statement shall be deemed to constitute a representation by the Contractor that all matters set forth therein are true and accurate and that the Contractor performed the Services for which payment is described in the statement in accordance with this agreement. Each statement shall be subject to verification and audit by the Port Authority and no payments made by the Port Authority or credits given by the Port Authority as herein provided shall be deemed to be final until the statement upon which the payment is based has been approved by the Port Authority. No payment or credit, if not final and mutually agreed upon, shall operate to release the Contractor from any of its obligations related to such payment or credit under this agreement. In the event that after verification and audit by the Port Authority and approval of the statement of the Contractor, it is determined that payments previously made by the Port Authority are in excess of those required under this agreement then the Contractor shall pay to the Port Authority on demand the amount of said excess, or the Port Authority shall deduct said excess from any subsequent payments due to the Contractor. b) In the event that upon conducting an examination and audit pursuant to this agreement, the Port Authority determines that unpaid amounts are due to the Port Authority by the Contractor (the "Audit Findings"), the Contractor shall be obligated, and hereby agrees, to pay to the Port Authority a service charge in the amount of five percent (5%) of the Audit Findings. Each such service charge shall be payable immediately upon demand (by notice, bill or otherwise) made at any time therefor by the Port Authority. Such service charge (s) shall be exclusive of, and in addition to, any and all other moneys or amounts 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 to payment of any late charge(s) or other service charge(s) payable under the provisions of this article 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 hereunder. Nothing in this article is intended to, or shall be deemed to, affect, alter, modify or diminish in any way (i) any rights of the Port Authority under this agreement, including, without limitation, the Port Authority's rights to revoke or terminate this agreement or (ii) any obligations of the Contractor under this agreement. ARTICLE 12. FEDERAL AIRPORT AID The Port Authority has applied for and received a grant or grants of money from the Administrator of the Federal Aviation Administration (or “FAA”) pursuant to the Airport and Airways Development Act of 1970, as the same has been amended and supplemented and under prior federal statutes which said Act superseded and the Port Authority may in the future apply for and receive further such grants. The FAA current grant program is known as the Airport Improvement Program, or “AIP”, established under the Airport and Airway Improvement Act of 1982 (Public Law 97-248). In connection therewith, the Port Authority has undertaken and may 25 DRAFT VERSION 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 and obligations contained in this agreement is therefore a special consideration and inducement to the making of this agreement by the Port Authority, and the Contractor further covenants and agrees that if the Administrator of the Federal Aviation Administration 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 shall make any orders, recommendations or suggestions respecting the performance by the Contractor of its covenants and obligations under this agreement, the Contractor will promptly comply therewith at the time or times, when and to the extent that the Port Authority may direct in writing. ARTICLE 13. PUBLIC POLICY REQUIREMENTS a) Non-Discrimination The Contractor shall comply with section 1 (No Discrimination) of Exhibit E (Public Policy Requirements). b) Affirmative Action Guidelines, Equal Employment Opportunity, and Minority Business Enterprises and Women-Owned Business Enterprises (1) The Contractor shall comply with section 2 (Affirmative Action) of Exhibit E (Public Policy Requirements). (2) The Contractor shall comply with Schedule E (Affirmative Action – Equal Employment Opportunity – Minority Business Enterprises – Women-Owned Business Enterprises Requirements) to Exhibit E (Public Policy Requirements.) c) Labor Harmony The Contractor shall comply with section 3 (Labor Harmony) of Exhibit E (Public Policy Requirements). d) Local Business Enterprise and Employment Opportunity The Contractor shall comply with Schedule F (Local Business Enterprise and Employment Opportunity) of Exhibit E (Public Policy Requirements). e) ACDBE Participation The Contractor shall comply with Schedule G (ACDBE Participation) of Exhibit E Public Policy Requirements). 26 DRAFT VERSION f) Office of Inspector General and Integrity Monitor (1) The Port Authority, the Office of Inspector General for the Port Authority (or “OIG”) and the Integrity Monitor (“Integrity Monitor” means the private independent organization with legal, auditing, accounting, engineering and investigative expertise (and its subcontractors and sub-consultants) that the Port Authority has engaged to assist it in its fraud prevention efforts) each have the right at any time and without cause to audit or investigate any and all records of the Contractor and its subcontractors and concessionaires with respect to the Services, the concessionaire activities and the Airport facility, including records pertaining to any compensation paid, payable, or to be paid under any subcontracts, and for compliance with this section. Neither the Contractor nor any of its subcontractors or concessionaires shall be entitled to any reimbursement or other compensation for costs associated with any audit or investigation under this section. (2) The Contractor shall, within fourteen (14) days of receiving an invoice from the Port Authority, reimburse the Port Authority for the cost (including attorney fees) of any audit, investigation or lawsuit conducted by or on behalf of the Port Authority, the OIG or the Integrity Monitor where any fraud, corruption, or other criminal activity or non-compliance with this article by a Contractor Party (“Contractor Party” is defined as any subcontractor or concessionaire or other party performing any of the Airport Contractor’s Services, any other party for whom the Contractor may be legally responsible, including invitees and trespassers, and the affiliates, agents, officers, directors, representatives, employees, consultants, partners, members, managers, successors, assigns, guests and invitees of, and any other parties doing business with, any of them) is discovered or confirmed by the Port Authority to have occurred. The Port Authority or the OIG shall determine, in its absolute discretion, the value of these costs and shall decide whether to charge the Contractor for these costs, which may be deducted from any amounts owed to the Contractor by the Port Authority. (3) The Contractor shall cooperate fully and shall ensure that all subcontractors and concessionaires cooperate fully, with the Port Authority, the OIG and Integrity Monitor, including by promptly providing complete access to the Airport facility and all personnel and records in any way related to the Services or the concessionaire activities. (4) If there is a failure to cooperate with the OIG or the Integrity Monitor by the Contractor or any subcontractor or concessionaire: (i) this failure shall constitute a Contractor default; and 27 DRAFT VERSION (ii) the Port Authority, in its absolute discretion, may direct the Contractor to remove and terminate any uncooperative subcontractor or concessionaire, in which case the Contractor shall comply with such direction. (5) The Contractor shall ensure that all subcontracts and concessionaire agreements, including lower-tier subcontracts and sub-consultant agreements, comply with the provisions of the OIG "Background Qualifications Questionnaire Package," available from the OIG. (6) This section shall be included in any agreement that the Contractor enters into with any subcontractor or concessionaire, including lower-tier subcontractors and sub- consultants. (7) E-Verify (i) The Contractor shall confirm and verify that all Persons (both citizens and noncitizens) performing the Services or the concessionaire activities in the United States are legally present in the United States and authorized to work in accordance with the I-9 employment eligibility verification program derived from the Immigration Reform and Control Act of 1986 and its implementing regulations. ARTICLE 14. PORT AUTHORITY OPERATIONAL APPROVALS On any matter under this agreement of a solely operational nature, whenever the approval or consent of the Port Authority is expressly required hereunder and such matter does not involve or result in any modification or supplementation of this agreement, the Contractor shall communicate with the Manager of the Airport and, as to the specific subject matter thereof, shall be entitled to rely on such decision which she/he or her/his duly designated representative as to such matter. ARTICLE 15. INTENTIONALLY OMITTED ARTICLE 16. OWNERSHIP OF MATERIALS f) All of the files, books, records and other personal property which are transferred to the possession or control of the Contractor upon or in connection with the execution of this agreement are and shall remain the sole and exclusive property of the Port Authority. All files, books and records set up or maintained by the Contractor thereafter in connection with this agreement, of the type presently used or which may be necessary or convenient for the Contractor to develop, prepare or use in the performance of services during the Term, shall also be and remain the sole and 28 DRAFT VERSION exclusive property of the Port Authority, whether or not the same arc patentable or registrable, all of which shall be considered a work made for hire within the meaning of the copyright laws of the United States. If for any reason whatsoever such work prepared or developed by the Contractor in connection with its Services under this agreement is not considered a work made for hire under such laws, then the Contractor hereby grants and assigns to the Port Authority all of its right, title and interest to such work. The foregoing shall not be applicable to any proprietary systems or documentation or other items of personal or intellectual property which was developed by the Contractor independent of this agreement but may be used by the Contractor in the performance of its Services under this agreement, any such proprietary systems or documentation or other items of personal or intellectual property to remain the sole and exclusive property of the Contractor. g) To the extent the Port Authority provides the Contractor with access to market research it has available on the users of the Terminal or the Airport, such market research shall be maintained on a confidential basis by the Contractor and shall not be shared with or otherwise communicated to third parties without the prior written approval of the Port Authority; provided, however, that information shall not be deemed to be "confidential" for purposes of this paragraph if it is information which (i) the Contractor can demonstrate was in its possession prior to the Port Authority disclosing same to Contractor, (ii) is disclosed to the Contractor by a third party where such third party is not under a duty of confidentiality not to so disclose the relevant information, (iii) is in the public domain, or (iv) the Contractor is required to disclose pursuant to court or administrative order or subpoena (after prior adequate notice to the Port Authority so as to provide the Port Authority an opportunity to prevent or limit such required disclosure). The Contractor agrees to utilize this market research information and any other research the parties may mutually agree to conduct, in order to ensure that concession concepts developed for the Terminal closely match the needs and desires of the users of the Terminal. ARTICLE 17. BROKERAGE a) The Contractor and the Port Authority 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 Port Authority shall indemnify and save each other 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 Port Authority, as the case may be, in connection with the negotiation and execution of this agreement. b) Without limiting the generality of Exhibit A hereto, without the prior written consent of the Port Authority in each and every instance, the Contractor shall not be authorized or entitled to retain, contract with or use the services of a broker to identify, select, negotiate or otherwise procure a prospective tenant or other 29 DRAFT VERSION user/occupant at the Terminal and, unless the Contractor obtains such prior written consent, the Contractor shall indemnify and save harmless the Port Authority, its commissioners, officers, employees and representatives of and from any and all claims for commission or brokerage made by any and all persons, firms or corporations whatsoever for services in connection with the identification, selection, negotiation or procurement of said tenant or other user/occupant. ARTICLE 18. OFAC REPRESENTATION a) Contractor’s Representation and Warranty. The Contractor hereby represents and warrants to the Port Authority that the Contractor (i) is not a person or entity with whom the Port Authority is restricted from doing Contractor 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, Executive Order 13224 of September 23, 2001, Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism), or other governmental action related to national security, the violation of which would also constitute a violation of law (such persons being referred to herein as “Blocked Persons”, and such regulations, statutes, executive orders and governmental actions being referred to herein as “Blocked Persons Laws”) and (ii) is not engaging in any dealings or transactions or is otherwise associated with Blocked Persons in violation of any Blocked Persons Laws. The Contractor acknowledges that the Port Authority is entering into this agreement in reliance on the foregoing representations and warranties and that such representations and warranties are a material element of the consideration inducing the Port Authority to enter into and execute this agreement. b) Contractor’s Covenant. The Contractor covenants that during the Term of this agreement it shall not (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 the letting hereunder. In the event of any termination by the Port Authority 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 Port Authority’s termination notice, cease all use of and operations permitted under this agreement and surrender possession of the Premises to the Port Authority without the Port Authority being required to resort to any other legal process. c) Contractor’s Indemnification Obligation. The Contractor shall indemnify and hold harmless the Port Authority Indemnified Parties from and against any and all claims, damages, losses, risks, liabilities and expenses (including, without limitation, attorney’s fees (including fees of in-house and outside counsel to the Port Authority) and disbursements) arising out of, relating to, or in connection with the Contractor’s breach of any of its representations and warranties made in this section. Upon the request of the Port Authority, the Contractor shall at its own expense defend any suit based upon any such claim or demand (even if such suit, claim 30 DRAFT VERSION or demand is groundless, false or fraudulent) and in handling such it shall not, without obtaining express advance permission from the General Counsel of the Port Authority, raise any defense involving in any way the jurisdiction of the tribunal over the person of the Port Authority, the immunity of the Port Authority, its Commissioners, officers, agents or employees, the governmental nature of the Port Authority, or the provision of any statutes respecting suits against the Port Authority. d) Survival. The provisions of this section shall survive the expiration or earlier termination of the term of the letting hereunder. ARTICLE 19. DISALLOWED CHARGES a) The Contractor shall not charge any concessionaire for (and no concessionaire at Terminal B will be obligated to pay) any amounts with respect to costs that the Contractor incurs in connection with: (i) repair, maintenance, lighting, waste management and removal or operation costs of the food court (if any) except on the food-and-beverage concessionaires 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) receipt, storage, transportation or delivery of goods, inventory or equipment of any kind, except on concessionaires (on a pass-through basis only with no added administrative or other up-charge) to receive, store, transport and deliver concessionaires’ goods, inventory and equipment to and from loading docks and the concessionaires’ concession spaces or storage space; (iii) marketing and advertising, except on concessionaires (on a pass-through basis only with no added administrative or other up-charge) for charges relating to marketing the concessions program at Terminal B, including for directories and similar wayfinding devices; and (iv) Utilities, except for utilities provided by the Contractor directly to concessionaires for consumption in the premises (on a pass-through basis only with no added administrative or other up-charge) in lieu of such concessionaires making direct payments to utility providers. b) No concession-management fees or related fees, or fees for the review of construction- related or refurbishment-related work to be performed by concessionaires, may be imposed on concessionaires and no rent, charges or other fees may be imposed on concessionaires for expenses relating to (x) the screening and identification of badging or (y) the receiving, storing or transporting of goods, inventory or equipment of any 31 DRAFT VERSION kind (from a location off-Premises or otherwise) other than to or from the loading docks located at the Terminal, as elsewhere permitted in this agreement c) The Contractor shall not impose a charge of any kind on any concessionaire or prospective concessionaire (or on any employee, agent, affiliate, consultant, representative or contractor of a concessionaire) in connection with the review, approval, or construction administration of any construction work which is subject to the Port Authority’s Tenant Construction and Alteration Process Manual, or “TCAP”. This prohibition applies regardless of whether the review, approval or construction administration is conducted directly by the Contractor. d) The Contractor shall not impose a charge of any kind on any concessionaire or prospective concessionaire (or on any employee, agent, affiliate, consultant, representative or contractor of a concessionaire) for, and no concessionaire or prospective concessionaire will be obligated to pay for, or reimburse, the cost of an audit of close-out documents relating to any Construction Work which is subject to TCAP, regardless of the percentage discrepancy that such audit might reveal in calculating the cost of fixed improvements installed by or on behalf of the Contractor. This prohibition applies whether or not the audit is conducted by or on behalf of the Contractor. ARTICLE 20. SECURITY [RESERVED] ARTICLE 21. COMPLIANCE WITH APPLICABLE LAWS AND GOVERNMENTAL APPROVALS AND REGULATIONS (a) Compliance with Applicable Law and Applicable Standards The Contractor shall perform, and shall ensure that all Contractor Parties perform, the Concession Management Services and the concessionaire activities in accordance with all applicable laws and standards. The Contractor shall, within forty-eight (48) hours after its receipt of 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 Contractor’s Services or the concessionaire activities, deliver the same to the Port Authority for examination. Unless otherwise directed in writing by the Port Authority, the Contractor shall conform (and shall ensure that the Contractor Parties conform) to such enactments, ordinances, resolutions and regulations insofar as they relate to the Contractor’s Services or the concessionaire activities. In the event of compliance with any such enactment, ordinance, resolution or regulation on the part of the Contractor, acting in good faith, commenced after such delivery to the Port Authority but prior to the receipt by the Contractor of a written direction from the Port Authority, such compliance shall not constitute a breach of this 32 DRAFT VERSION agreement, although the Port Authority may thereafter notify the Contractor to refrain from such compliance, provided that the Contractor shall not be required to comply with the Port Authority's notification if it may result in the Contractor's violation of applicable laws or standards. Nothing in this section shall release the Contractor from compliance with any other provision of this section respecting governmental requirements. (b) Governmental approvals The Contractor shall obtain, maintain and comply with, and shall ensure that all Contractor Parties obtain, maintain and comply with, all Governmental approvals, required for performance by the Contractor of the Contractor’s Services and the concessionaire activities in accordance with this agreement. The Contractor's obligation to comply with Governmental approvals is not to be construed as a submission by the Port Authority to the application to itself of those Governmental approvals. (c) Facility Rules and Regulations of the Port Authority Throughout the Term, the Contractor shall observe and comply with, and shall ensure that the other Contractor Parties observe and comply with: (i) the Port Authority Air Terminal Rules and Regulations ("Air Terminal Rules and Regulations") promulgated by the Port Authority then in effect as of the Effective Date (Air Terminal Rules and Regulations shall be understood to include General Manager Bulletins); and (ii) the applicable Port Authority Standards Manual ("Airport Standards Manual"). In addition, the Contractor shall observe and comply with, and shall ensure that the other Contractor Parties observe and comply with all future revisions to or amendments of the Air Terminal Rules and Regulations and the Airport Standards Manual that are made by the Port Authority for reasons of safety, health, preservation of property or maintenance of a good and orderly appearance of the Airport, quality passenger experience, or for the safe and efficient operation of the Airport. Except in cases of emergency, the Port Authority will generally provide at least ten (10) days' prior notice to the Contractor of each Air Terminal Rule and Regulation and any changes to the Airport Standards Manual adopted after the Effective Date before the Contractor will be required to comply with the new Air Terminal Rule and Regulation and/or the change to the Airport Standards Manual. 33 DRAFT VERSION A copy of the facility Air Terminal Rules and Regulations of the Port Authority will be available for the Contractor's review at the Office of the Secretary of the Port Authority. The Port Authority reserves the right to require the Contractor to provide written reports detailing its compliance with the Air Terminal Rules and Regulations and Airport Standards Manual. In the event of non-compliance, the Port Authority may opt to require the Contractor to provide a remedial plan to become compliant forthwith. In the event that the Contractor does not become compliant with the Air Terminal Rules and Regulations and Airport Standards Manual in accordance with a remedial plan approved by the Port Authority, or the Port Authority and the Contractor are not able to agree upon such a remedial plan within thirty (30) days after the Port Authority first notifies the Contractor that it is non-compliant, then the Port Authority may in its sole discretion take steps to perform as required to achieve compliance in lieu of the Contractor, and to charge the Contractor for the Port Authority’s performance in an amount equal to the Port Authority’s costs plus an additional thirty percent (30%) for supervisory, administrative and headquarters fees and expenses. The Contractor confirms that the fees and expenses in the preceding sentence are reasonable for provision by the Port Authority of those actions in lieu of the Contractor. Nothing in this paragraph shall create any duty on the part of the Port Authority to perform in lieu of the Contractor, and no third party shall have any rights to demand Port Authority performance as a result of the option provided to the Port Authority in this provision. In the event such costs and expenses are charged to the Contractor by the Port Authority, they shall be due and payable thirty (30) days following receipt of a demand for payment by the Contractor or, at the option of the Port Authority, applied against the security posted and held upon prior notice to the Contractor. Failure to provide payment within the thirty (30) day period will result in late charges. The Contractor shall not perform (and shall ensure that no Contractor Party performs) any activity or services at the Airport for which the Applicable Standards or Port Authority policy requires the issuance of a Port Authority permit unless the relevant Contractor Party has obtained the Port Authority- issued permit and paid any relevant fees associated with the permit. ARTICLE 22. BEST MANAGEMENT PRACTICES The Contractor shall perform, and shall ensure that all Contractor Parties perform, the Concession Management Services in accordance with: (2) the requirements of this agreement; and 34 DRAFT VERSION (3) Best Management Practices. (i) “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 highly skilled and experienced airport Contractor or airport management services provider, or a skilled and experienced designer, engineer, or contractor, as applicable, seeking in good faith and with a high degree of diligence to comply with its contractual obligations (including, in the case of an Airport Contractor or Airport management services provider, 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 Practices is not static but rather will change over time; provided, however, that Best Management Practices with respect to any particular activity will be determined at the time when such particular activity is performed. ARTICLE 23. NO GIFTS, GRATUITIES, OFFERS OF EMPLOYMENT, ETC. This section supersedes Section 5 of Part III of the Standard Contract Terms and Conditions. (a) At all times during the term of this agreement, the Terminal or any affiliate thereof shall not offer, give or agree to give anything of value either to a Port Authority employee, agent, job shopper, consultant, construction manager or other person or firm representing the Port Authority, or to a member of the immediate family (i.e., a spouse, child, parent, brother or sister) of any of the foregoing, in connection with the performance by such employee, agent, job shopper, consultant, construction manager or other person or firm representing the Port Authority of duties involving transactions with the Contractor on behalf of the Port Authority, whether or not such duties are related to this agreement or any other Port Authority contract or matter. Any such conduct shall be deemed a material breach of this agreement. (b) As used herein "anything of value" shall include but not be limited to any (a) favors, such as meals, entertainment, transportation (other than that contemplated by the agreement or any other Port Authority contract), etc. which might tend to obligate the Port Authority employee to the Contractor or any of its affiliates, and (b) gift, gratuity, money, goods, equipment, services, lodging, discounts not available to the general public, offers or promises of employment, loans or the cancellation thereof, preferential treatment or business opportunity. Such term shall not include compensation contemplated by this agreement or any 35 DRAFT VERSION other Port Authority contract. Where used in this section, the term "Port Authority" shall be deemed to include all subsidiaries of the Port Authority. (c) The Contractor shall ensure that no gratuities of any kind or nature whatsoever shall be solicited or accepted by it and by its personnel for any reason whatsoever from the passengers, tenants, customers or other persons using the Terminal facilities and shall so instruct its personnel. The Contractor shall include the provisions of this clause in each subcontract entered into under this agreement. (d) The Contractor or any affiliate thereof must not make an offer of employment, use confidential information or act in a manner proscribed by the Code of Ethics and Financial Disclosure dated as of March 11, 2014, as may be revised (a copy is available upon request to the Office of the Secretary of the Port Authority). (e) Neither the Contractor nor any affiliate thereof knows of any action on the part of any employee or former employee of the Port Authority which constitutes a breach of said Code of Ethics and Financial Disclosure. If the Contractor or any affiliate of the Contractor comes into such knowledge at any time hereafter, including during the term of this agreement, it must report this conduct to the Port Authority's Office of Inspector General within three Business Days of its discovery, any failure to do so will be deemed a material breach of this agreement. ARTICLE 24. PROHIBITED PARTY a) The Contractor hereby represents and warrants to the Port Authority that none of the Contractor, any affiliate of the Contractor, or any officer, director agent, employee, member (if Contractor is a limited liability entity), manager (if Contractor is a limited liability entity), partner (if Contractor is a partnership) or nominal or beneficial owner of a ten percent (10%) or more interest in the Contractor is a Prohibited Party. b) “Prohibited Party” means any Person who is: (1) debarred, suspended, proposed for debarment with a final determination still pending, declared ineligible or voluntarily excluded (as such terms are defined in any of the Debarment Regulations) from participating in procurement or nonprocurement transactions with the Federal government or any department, agency or instrumentality thereof pursuant to any of the Debarment Regulations; (2) indicted, convicted or had a civil or administrative judgment rendered against such Person for any of the offenses listed in any of the Debarment Regulations and an event has occurred or a condition exists that is likely to result in the debarment or suspension of such Person from contracting with the Federal government or any department, agency or instrumentality thereof; (3) listed on the “Lists of Parties Excluded from Federal Procurement and 36 DRAFT VERSION Nonprocurement Programs” issued by the U.S. General Services Administration; (4) located within, or doing business or operating from, a country or other territory subject to a general embargo administered by OFAC (5) designated on the OFAC list of “Specially Designated Nationals”; (6) otherwise targeted under economic or financial sanctions administered by the United Nations, OFAC or any other Federal economic sanctions authority or any divestment or sanctions program of the State of New York or New Jersey; (7) a banking institution chartered or licensed in a jurisdiction against which the United States Secretary of the Treasury has imposed special measures under section 311 of the USA PATRIOT Act; (8) located within or is operating from a jurisdiction that has been designated as non-cooperative with international anti-money laundering principles by the Financial Action Task Force on Money Laundering; (9) a financial institution against which the United States Secretary of the Treasury has imposed special measures under section 311 of the USA PATRIOT Act; (10) a “senior foreign political figure” or a prohibited “foreign shell bank” within the meaning of 31 C.F.R. § 103.175; or (11) an entity with whom the Port Authority is engaged in litigation relating to performance of contract or business practices (unless the Port Authority has first waived (in Port Authority’s sole discretion) by written notice to the transferring equity holder, with a copy to the Contractor, the prohibition on a transfer to such Person during the continuance of the relevant litigation). ARTICLE 25. MISCELLANEOUS a) The captions, if any, in this agreement arc for reference purposes only and shall not in any way affect the meaning or interpretation of the provisions and terms hereof. b) Wherever, under this agreement, written direction or prior written approval or consent of the Port Authority is required, such direction, approval or consent shall be given, conditioned, withdrawn or modified by written notice, in the sole discretion of the Port Authority. c) The deletion of language from this agreement prior to its mutual execution shall not be construed to have any particular meaning or to raise any presumption, canon of construction or implication. Consequently, in the event an ambiguity or question of intent or interpretation arises, this agreement, and any amendments, addendums, supplements, exhibits or Schedules hereto, shall be construed as if drafted jointly by the 37 DRAFT VERSION parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this agreement. The deletion of language from this Contract prior to its mutual execution shall not be construed to have any particular meaning or to raise any presumption, canon of construction or implication. d) The terms, provisions and obligations contained in any exhibit or schedule attached hereto, whether there set out in full or as amendments of, or supplements to provisions elsewhere in this agreement stated, shall have the same force and effect as if herein set forth in full. e) The Contractor hereby waives its right to trial by jury in any summary proceeding or action that may hereafter be instituted by the Port Authority against the Contractor in respect of the Premises or this agreement or in any action that may be brought by the Port Authority to recover fees, damages, or other sums payable hereunder. The Contractor shall not interpose any claims as counterclaims, set-offs or defenses in any summary proceeding or action for non-payment of fees, or for recovery of possession of Premises, or otherwise in respect of this agreement, which may be brought by the Port Authority unless such claims would be deemed waived if not so interposed. f) No Commissioner of the Port Authority, and no officer, employee, agent or representative of either Party will be charged with any liability or held personally liable under any term or provision of this agreement, or because of any of their acts or omissions or because of the execution or attempted execution of this agreement, or because of any breach or attempted or alleged breach of any provision of this agreement. g) This agreement is binding upon and will inure to the benefit of the Port Authority and the Contractor and their respective successors and permitted assigns. h) Nothing contained in this agreement is intended or will be construed as creating or conferring any rights, benefits or remedies upon, or creating any obligations of the Parties toward, any Person not a party to this agreement, except rights expressly contained in this agreement for the benefit of the Indemnified Parties. i) This agreement together contains the entire understanding of the Parties with respect to the subject matter of the Contractor’s Concession Management Services and supersedes all prior agreements, understandings, statements, representations and negotiations between the Parties with respect to their subject matter. j) If any clause, provision, section, subsection or part of this agreement is invalid or unenforceable or would destroy its mutuality or render it invalid or illegal, that provision will not be deemed to form part of this agreement and the balance of this agreement will remain in full force and effect, and this agreement will be construed and enforced as if it did not contain that provision. 38 DRAFT VERSION k) This agreement may be signed in any number of counterparts, each of which will be an original. ARTICLE 26. ENTIRE AGREEMENT This agreement consists of the following: Articles 1 through 26 inclusive, Schedule A and Exhibits A through E. It constitutes the entire agreement of the parties on the subject matter hereof and may not be changed, modified, discharged or extended except by written instrument duly executed by the Port Authority and the Contractor. The Contractor agrees that no representations or warranties shall be binding upon the Port Authority unless expressed in writing in this agreement. IN WITNESS WHEREOF, the parties hereto have executed these presents as of the day and year first above written. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY By ______________ (Title) _______________ (Seal) [CONTRACTOR] By ______________ (Title) ______________ Port Authority Use Only: 39 DRAFT VERSION Approval as to Terms: Approval as to Form: (Port Authority Acknowledgment) STATE OF NEW YORK ) ): ss. COUNTY OF NEW YORK ) On the day of in the year 2019, before me, the undersign