CONCESSION AGREEMENT
FOR
FOOD AND BEVERAGE OPERATIONS
AT THE
DES MOINES INTERNATIONAL AIRPORT
BETWEEN
ST. CLAIR DEVELOPMENT CORPORATION
d/b/a CREATIVE CROISSANTS
AND
THE CITY OF DES MOINES, IOWA
(DES MOINES INTERNATIONAL AIRPORT)
CITY OF DES MOINES
DEPARTMENT OF AVIATION
DES MOINES INTERNATIONAL AIRPORT
0000 XXXXX XXXXX, XXXXX 000
XXX XXXXXX, XXXX 00000-0000
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CONCESSION AGREEMENT
FOOD/BEVERAGE/VENDING OPERATIONS
ST. CLAIR DEVELOPMENT CORPORATION
d/b/a CREATIVE CROISSANTS
DES MOINES INTERNATIONAL AIRPORT
DES MOINES, IOWA
THIS CONCESSION AGREEMENT, made and entered into this 2nd day of June 1997, by
and between the CITY OF DES MOINES, IOWA, a municipal corporation organized and
existing under and by virtue of the laws of the State of Iowa (hereinafter
referred to as "City") and St. Clair Development Corporation d/b/a Creative
Croissants, a corporation organized and existing under the laws of the State of
California, (hereinafter called "Concessionaire"), having its principal offices
at 0000 Xxxxxx Xxxxxx, Xxxxx X, Xxx Xxxxx, XX 00000.
W I T N E S E T H T H A T:
WHEREAS, City currently owns and operates an airport known as the Des Moines
International Airport (hereinafter called the "Airport"), located in Des Moines,
Polk County, Iowa, and
WHEREAS, City deems it advantageous to itself and to its operation of the
Airport to lease unto Concessionaire certain premises and to grant unto
Concessionaire certain rights, privileges, and uses therein, as necessary to
provide food/beverage/vending service within the Terminal Building at the
Airport;
NOW, THEREFORE, for and in consideration of payment of the fees and charges
hereinafter provided, and of the covenants and conditions hereinafter contained
to be kept and performed, do hereby agree as follows:
ARTICLE 1
TERM OF AGREEMENT
Section 1.1 Term. Subject to earlier termination and cancellation as hereinafter
provided, the term of this Agreement shall be for a period of ten (10) years,
commencing on the expiration of the Interim Term as stipulated in Section 1.2.
Section 1.2 Interim Term. The full term of this Agreement shall be comprised of
an interim term and a regular term. The interim term of the Agreement shall
commence on July 1, 1997, and shall
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end 60 days following final approval by City of architectural plans for the
"Last Operating Facility" to be constructed. "Last Operating Facility" shall be
defined either the landside operation or the airside operation as depicted
within Exhibit C and Exhibit G attached hereto. The regular term of the
agreement commences 60 days following final approval by City of architectural
plans for the last operating facility to be constructed and ends exactly ten
(10) years from the date of commencement of the full term, unless sooner
terminated as herein provided. Architectural plans must be submitted by
Concessionaire in accordance with all provisions described in Article 8 of this
Agreement.
Section 1.3 Option Periods. City, at its sole discretion, may elect to extend
the term of the Agreement, under the same terms and conditions for five
individual twelve (12) month periods upon written notice to Concessionaire. Said
notice shall occur no later than 90 days prior to the expiration of the then
current term of the Agreement. Concessionaire may accept or decline the
extension within 30 days of the offer to extend. Failure of the Concessionaire
to respond to the offer within 30 days shall be considered a declination of the
offer.
ARTICLE 2
PREMISES
Section 2.1 Premises. Concessionaire shall operate the Concession granted within
the premises indicated in the Request for Proposal document (Exhibit G) and on
applicable pages of Exhibit "C" attached hereto and forming a part hereof. The
Premises include areas designated for storage and support as indicated in the
Requests for Proposal document (Exhibit G) and in Exhibits "D" and "E" attached
hereto and forming a part thereof.
Section 2.2 Square Footage. The square footage figures appearing throughout
Exhibits "C", "D", and "E" attached hereto are approximate only and are subject
to on-site measurements to be performed after completion of development. City
hereby provides to Concessionaire certain space in the Terminal Building
hereinafter described together with certain attendant rights and privileges
specifically set forth.
ARTICLE 3
CONCESSION RIGHTS AND PRIVILEGES
Section 3.1 Rights Granted. Concessionaire shall have the right to sell to the
public those food and beverage items submitted in its proposal dated March 24,
1997, and such other Food and Beverage items as may be approved herein.
Section 3.2 Right to Operate. City hereby grants to Concessionaire the exclusive
right and obligation to occupy, equip, furnish, operate and maintain food and
beverage facilities in those portions of existing buildings at Airport shown in
the Request for Proposal document (Exhibit G) and in Exhibit "C", attached
hereto, and made a part hereof. The rights granted shall be carried on solely
and exclusively within the limits and confines of said areas, subject, however,
to the expansion, reduction or relocation of any such area specified in Article
10 hereof and its sections. However, the
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City reserves the right to develop specialty retail concessions in the future as
business conditions warrant and in order to fulfill the Airport's DBE program
requirements.
Section 3.3 General Obligation to Operate. At the locations indicated herein,
Concessionaire shall provide food and beverage service for passengers, every day
of the term hereof, without exception. In addition, Concessionaire shall install
and maintain food and beverage vending machines in a location(s) designated by
City. Concessionaire shall take all reasonable measures, in every proper manner,
to develop, maintain and increase the business conducted by it under this
Agreement. Concessionaire shall actively operate each food and beverage facility
so as to best serve public needs.
Section 3.4 Right to Advertise/Promote Products. Concessionaire shall have the
right to advertise brand-name products on its packaging and within the premises
only upon the written approval of City.
Section 3.5 Quiet Enjoyment. Concessionaire, upon payment of fees and charges as
described in Article 5 hereof, and its sections, and upon observing and keeping
the conditions and covenants of this Agreement on its part to be observed and
kept, shall lawfully and quietly hold, use and enjoy the concession premises
during the term of this Agreement.
Section 3.6 Ingress and Egress. Concessionaire shall have the full and free
right of ingress to and egress from the Leased Premises. City agrees to use its
best efforts to keep the routes of ingress and egress to the Leased Premises
free from obstruction including the removal of snow, ice, vegetation, stones,
and other foreign matter. City has the fight to alter or change the routes of
ingress and egress upon giving reasonable notice to Concessionaire and upon
providing other reasonably adequate means of ingress and egress.
Section 3.7 Parking Facilities. Concessionaire's employees shall have the fight
to utilize reasonable adequate vehicular parking facilities in common with other
tenant employees . Such facilities shall be located in an area designated by the
City. City reserves the fight to assess a reasonable charge to such
concessionaire employees for such employee parking facilities at a rate not more
than that being charged to other tenant employees for use of the same
facilities.
Section 3.8 Exclusivity. The concession rights herein granted to the
Concessionaire shall be exclusive within the premises covered by this Concession
Agreement, but non-exclusive at the Airport. Specifically, certain food and
beverage items, tenant employee dining, special event catering and in-flight
catering are non-exclusive. Items which will be exclusive to Concessionaire
within the Terminal are listed in Exhibit "B". City may enter into Concession
Agreements with other food and beverage Concessionaires at Airport, some of
which will be located in the terminal covered by this Concession Agreement. Said
Agreements may not grant any Concessionaire the rights to sell those items
identified as "exclusive" in Exhibit "B", but may permit the sale of other food
and beverage items.
Section 3.9 Tenant Employee Dining. City's other tenants may, at City's option,
be granted the right to operate dining facilities for their employees and/or
their First Class passengers, but not for
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the general public, and not in locations to which the general public has access.
Such right may include the right to sell food and beverages, either directly or
through a contractor. Concessionaire shall not have the exclusive or first right
to provide such services to said tenants.
Section 3.10 Dispute on Services or Products. In the event of a dispute between
Concessionaire and City or any other Airport tenant as to the services to be
offered or products to be sold, Concessionaire shall meet and confer with
Aviation Director and. if any parties to said dispute continue to disagree with
the recommendation of Aviation Director, City shall determine the services to be
offered or products to be sold by each, and Concessionaire shall be bound by
said determination.
Section 3.11 No Other Uses. Concessionaire shall not use nor permit the
concession premises to be used for any purpose other than as hereinabove set
forth except with the prior written consent of City, nor for any use in
violation of any applicable present or future law, ordinance, rule or regulation
of any Governmental authority, agency, department or officer thereof.
ARTICLE 4
FEES AND TIME OF PAYMENT
Section 4.1 Monthly Rental Payments
A. Monthly Rental Payments During the Interim Term of the Concession
Agreement. As the monthly rent during the interim term, as defined in
this Agreement, Concessionaire shall pay the percentage fee applicable
to each category of gross receipts as defined herein.
B. Monthly Rental Payments During the Regular Term of the Concession
Agreement. As the monthly rent during the regular term, as defined in
this Agreement, Concessionaire shall pay the greater of (1) the
percentage fee applicable to each category of gross receipts as defined
herein, or (2) 1/12 of the minimum annual Guaranteed rent as defined
herein.
C. Percentage Fee. The Percentage Fee shall be the sum of (1) Nineteen
and one-half (19.5%) of the gross revenues earned from the sale of
alcoholic beverages, (2) Fourteen percent (14%) of the gross revenues
earned from all other food and beverage sales and (3) Eleven percent
(11%) of the gross revenues earned from all vending machine sales in
the terminal covered by this Concession Agreement.
D. Minimum Annual Fee. The minimum annual fee for the first full year
of operation during which all facilities under the agreement are in
operation, as defined in Section 1.2. shall be equal to Twenty-one
cents (.21(cent)) per enplaned passenger . For each year after the
first full year of operation, as defined in Section 1.2, the minimum
annual guarantee shall be the greater of the minimum established for
the first full year of operations, as defined in Section 1.2, or
eighty-five percent (85%) of the previous years actual rent payments
(Percentage Fee).
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E. Adjustment to Minimum Annual Fee. In the event that enplaning
passengers, in the terminal, increase or decrease by an amount greater
than twenty percent (20%) from one contract year to the immediately
following contract year, City will adjust the minimum annual fee for
that year by the amount of the percentage increase or decrease in
enplaning passengers. Within 90 days after each contract year, City
will compare the actual number of enplaning passengers for that
contract year to the immediately preceding contract year. If enplaning
passengers have increased or decreased by an amount greater than twenty
percent (20%), City will adjust the minimum annual guarantee. If a
greater amount is due, City will invoice Concessionaire for the
difference. If a smaller amount is due, City will issue a rent credit
to the Concessionaire which the Concessionaire may deduct from a future
rent payment.
F. Enplaning Passenger Defined. The term "Enplaning Passengers" refers
to the aggregate number of passengers departing from the terminal
covered by this Concession Agreement. It excludes everyone else who may
be in the terminal, such as arriving passengers, persons coming into
the terminal to greet arriving passengers, airport employees, and the
employees of airport tenants. These other persons may be a source of
revenue for the Concessionaire, but City will only report the number of
enplaning passengers for the purposes of this Concession Agreement.
G. No Abatement. City and/or Federal government shall retain the right
to restrict access to areas "airside" of security checkpoints to
ticketed passengers and Airport/airline personnel. City shall retain
the right to restrict access for purposes of construction of
City-approved improvements. During such actions, Concessionaire shall
not be entitled to any minimum annual guarantee abatement or percentage
adjustment, other than the reductions defined in Section 4. 1.(E)
Adjustment to Minimum Annual Guarantee herein.
H. Annual Adjustment. At the end of each twelve (12) month period
during the term hereof, City shall prepare and submit to Concessionaire
a statement showing the total percentage rent charge for the said
twelve months. If the sums paid by Concessionaire during said 12 month
period exceed the greater of the minimum annual Guarantee or the actual
percentage rent payment, such overpayment shall be credited to the fees
and charges next thereafter due from Concessionaire. If
Concessionaire's aggregate payments are less than the total due,
Concessionaire shall, within ten (10) calendar days, pay City the
difference.
Section 4.2 Utilities. Utilities, including but not limited to electricity, gas
and water, may be separately metered as appropriate at Concessionaire's expense,
and shall be invoiced directly to Concessionaire.
Section 4.3 Refuse Removal. Concessionaire shall comply with the provisions of
Section 5.9 herein with regard to the disposition of trash and garbage. City
shall maintain garbage or refuse disposal areas for use by Concessionaire.
Concessionaire shall pay to City a pro-rata amount of the cost for removal of
garbage and refuse from designated garbage or refuse disposal areas.
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Section 4.4 Other Fees and Charges. If City has paid any sum or sums or has
incurred any obligations or expense which Concessionaire had agreed to pay or
reimburse City for, or if City is required or elects to pay sum(s) or ensure
obligation(s) or expense(s) by reason of the failure, neglect or refusal of
Concessionaire to perform or fulfill any of the conditions, covenants or
agreements contained in the Agreement, or as a result of an act or omission of
Concessionaire contrary to said conditions, covenants and agreements,
Concessionaire shall pay the sum(s) so paid or the expense(s) so incurred,
including all interest, costs, damages and penalties, and the same may be added
to any installment of the fees and charges thereafter due hereunder, and each
and every part of the same shall be and become additional fees and charges,
recoverable by City in the same manner and with like remedies as if it were
originally a part of the basic fees and charges.
Section 4.5 Method of Payment. The procedure for the payment of the fees and
charges shall be as follows:
A. Payment Location. All fees and charges payable hereunder shall be
made payable to the City of Des Moines - Aviation Department, and
mailed or delivered to the Department of Aviation Office at the address
contained within Section 15.29, unless and until City designates some
other party to receive or place for the payment of said fees and
charges.
B. Monthly Rental Payments. The rental fees and charges to be paid by
Concessionaire to City hereunder shall be payable in monthly
installments throughout the term of this Agreement. Within fifteen (15)
calendar days after the end of each calendar month, Concessionaire
shall pay City, as the fees and charges for such prior calendar month,
one twelfth (1/12) of the guaranteed minimum annual guarantee or the
actual percentage rent charge, whichever sum is greater.
C. Monthly Rental Report. Concessionaire shall submit a monthly
accounting of the cross receipts received at each location and under
each category as referenced in Section 4.1.C operated by Concessionaire
under this Concession Agreement. Each facility shall be reported as a
separate location, Each monthly accounting shall be in such manner and
detail and upon such forms as are prescribed by City. Each monthly
report shall be due on the same date and at the same address as the
payment for that month is due. City reserves the right to make
modifications to said reporting form at any time under this Agreement.
Section 4.6 Late Payment. Any payment not received by the due date shall accrue
interest payable at the rate of 1.5% per month from the due date until paid in
full.
Section 4.7 Pro Rata Payment. If the commencement or termination of this
Agreement falls upon any date other than the first or last day of any calendar
month, the applicable fees and charges for said month shall be in the same
proportion that the number of days the Agreement is in effect for that month
bears to the total number of days in that month. Should this Agreement terminate
or be terminated in accordance with Article 2 at any time other than at the end
of the agreement year, the
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minimum fees for the agreement year in which such termination occurs shall be in
the same proportion that the number of days the Agreement is in effect for that
year bears to the total number of days in the year.
Section 4.8 Audit Reports. Concessionaire agrees to keep true and accurate
accounts, records, books and data which will show in a standard acceptable form
the income, including taxes, surcharges, and gross receipts as herein defined,
as separate line items of said business operated at and upon the Leased Premises
of the Airport, which books and records shall be open for inspection by
authorized representatives of City at all reasonable times during normal
business hours. City reserves the right, either directly, or through an agent,
to make necessary detailed audits as required at any time during the agreement
period and for twelve (12) months after the termination of the Agreement. In
addition, Concessionaire agrees to furnish to City annually a certified copy of
an audit thereof by Concessionaire's certified public accountant. Such audit
shall be in a form acceptable to the auditors of City and shall be due to City
at the office of City's Aviation Director no later than ninety (90) days after
the end of each Agreement year.
Section 4.9 Gross Receipts Defined. "Gross Receipts" shall include all receipts,
whether by coin or currency, on account, by check or credit card, collected or
uncollected, whether conducted on or off airport, derived by Concessionaire as a
result of its operation of the concession rights herein granted, without any
exclusion whatever, except those expressly permitted under Sections 4.9.A.
through 4.9.1. Gross receipts shall include the sales revenues received or
billed by Concessionaire from the sale of any item, including but not limited
to, dispensing and serving of food, food products and beverages including
alcoholic beverages, and other related services and products. Goods, work or
services furnished by any person or firm in lieu of payment in exchange for
value received shall be deemed to be Cash Sales. Gross Receipts shall exclude
revenues from the following:
A. Taxes On Sales. Retail sales taxes, excise taxes or related direct
taxes on the consumer which are collected by Concessionaire on such
sales for remittance to the city, county, state, or federal
government, provided all such taxes are properly accounted for and
recorded;
B. Sale of Scrap, Equipment, or Uniforms. Receipts from the sale of
waste or scrap materials resulting from the operation of
Concessionaire's business on Airport; receipts from the sale of or the
trade-in value of furniture, fixtures or equipment used on the
concession premises, and owned by Concessionaire; receipts from the
sale at cost of uniforms/clothing to Concessionaire's employees where
such uniforms/clothing are required to be worn by said employees;
C. Exchanges and Refunds from Suppliers. The value of any merchandise,
supplies or equipment exchanged or transferred from or to other
business locations of Concessionaire, where such exchanges or transfers
are not made for the purpose of avoiding a sale by Concessionaire which
would otherwise be made from or at the concession premises; receipts
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in the form of refunds from or the value of merchandise, supplies or
equipment returned to shippers, suppliers or manufacturers;
D. Refunded Receipts. Receipts with respect to any sale where the
subject of such sale, or some part thereof, is thereafter returned by
the purchaser to and accepted by Concessionaire, to the extent of any
refund actually granted or adjustment actually made, either in the
form of cash or credit;
E. Employee Meals and Employee Discounts. The cost or value of free
meals given to employees of Concessionaire pursuant to such employees'
employment contracts; the amount of a discount on all items except
alcoholic beverages which Concessionaire may give to those employees of
Airport tenants of City and Airport employees of City who have been
issued Airport Security Identification badges by City;
F. Supplier Discounts. The amount of any cash or quantity discounts
received from sellers, suppliers or manufacturers;
G. Tips. The amount of any gratuity paid or given by patrons or
customers to employees of Concessionaire. Said Concessionaire's
employee shall not, at any time while on Airport property, solicit
tips; and
H. Reimbursements. Receipts in the form of reimbursements from
Concessionaire's subcontractor(s) for any taxes, loan payments and/or
license fees paid by Concessionaire for or on behalf of such
subcontractor.
ARTICLE 5
OPERATING STANDARDS
Section 5.1 Concession Personnel. Concessionaire shall, at its cost, furnish
prompt, courteous and efficient service and shall ensure polite and inoffensive
conduct and demeanor on the part of its representatives, agents and employees,
collectively referred to herein as "personnel". Concessionaire shall employ or
permit the employment of only such personnel as will assure a high standard of
service to the public. All such personnel, while on or about the Airport
premises, shall be clean, neat in appearance and courteous at all times and
shall be appropriately attired, with badges or other suitable means of
identification, in such instances as are appropriate. No personnel, while on or
about the Airport premises, shall use improper language, act in loud, boisterous
or otherwise improper way or be permitted to solicit business in an
inappropriate manner.
Section 5.2 Manager. Concessionaire shall select and appoint, subject to
approval by the Aviation Director, a Manager of Concessionaire's operations at
the Airport. Such person must be an outstanding, highly qualified and
experienced manager or supervisor of comparable Food and Beverage operations,
vested with full power and authority to accept service of all notices provided
for herein and regarding operation of the concession business herein authorized,
including the quality
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and prices of foods and beverages and the appearance, conduct and demeanor of
Concessionaire's agents, servants and employees. Said Manager shall be assigned
to a duty station or office at the Airport, where he or she shall ordinarily be
available during regular business hours and where, at all times during the
manager's or other absences, a responsible subordinate shall be in charge and
available.
Section 5.3 Hours of Operation. In each location and on each day, Concessionaire
shall operate during those hours as are necessary to adequately serve the public
demand, as said demand may be determined and re-determined by the Aviation
Director. Concessionaire may advise the Aviation Director regarding optimum
hours of operation at each location.
A. Minimum Hours of Operation. Concessionaire shall be obligated to
operate the facilities for the hours which are defined in this Section
until such time as the Aviation Director requests that hours be
extended or authorizes hours to be altered . The initial minimum hours
each day shall be as follows:
Facilities shall open one hour prior to the departure of the
first scheduled flight of the day and shall remain open until
at least one hour subsequent to the departure of the last
scheduled flight of the day
B. Curtailment of Hours Beyond Control. Concessionaire shall be excused
from its obligations as set forth in Section 5.3.A. in the event that
its operations are closed or curtailed, in whole or in part, by reason
of a strike, lockout or a cause beyond its control as determined by the
Aviation Director.
C. Aviation Director May Alter Hours. Aviation Director may, on 24
hours notice to Concessionaire require earlier opening times or later
closing times for any location. Concessionaire shall comply with said
hours. Aviation Director may, from time to time, authorize a later
opening or earlier closing time for any location, provided it first
finds that Concessionaire has submitted adequate justification
therefore.
Section 5.4 Food Services Plan and Menu. Concessionaire's food services plan,
prices and menu shall be as contained within Concessionaire's proposal attached
as part of this Agreement for each facility. By attachment and reference herein,
Concessionaires marketing and merchandise plan as contained within their
proposal is hereby deemed approved. During the term of this Agreement,
Concessionaire shall make no changes to the food services plan, menu or prices
of any item on the approved menu without first obtaining the prior written
approval of the Aviation Director. The Aviation Director shall require the same
information, and apply the same criteria to each proposed chance as is described
in Section 5.4 and its subsections.
A. Menu. Concessionaire's proposed menu and all subsequent menus shall
include a description of each item, including the weight of each
portion and the Government grade of
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government quality (if any) for its component item(s). No menu shall
misrepresent quality, grade, or weight of any item.
B. Publicly Displayed Menu. Prices for each item sold in each facility
shall be conspicuously displayed to the satisfaction of the Aviation
Director as to information given, design, type, size, style, color, and
all other specifics. Said prices shall not exceed the approved prices
for said items.
C. Amendments May Be Required. The Aviation Director may, re-evaluate
the selection of items during the term. The Aviation Director's
determination that the selection offered is inadequate (in general or
at any particular location), or that any price is excessive, or that
the quality or quantity of any item is deficient, shall be conclusive.
Concessionaire may meet and confer with the Aviation Director regarding
such matters.
D. Quality of Foods and Beverages. All foods and beverages offered for
sale by Concessionaire shall be of high quality, and comparable to
first class food and beverage facilities of a similar type in the Des
Moines area.
E. Prices. All food and beverage products offered for sale by
Concessionaire shall be priced reasonably in comparison to like
facilities serving similar products to the general public in the Des
Moines area. What constitutes "like facilities" and "comparability of
prices" shall be determined solely by City but generally in accordance
with the following guidelines: Like facilities shall generally mean
casual dining establishments located within a 15 mile radius of the
airport. Prices no more than ten percent (10%) over the average of a
minimum of three (3) like facilities for similar menu items of similar
portions and presentations shall be deemed to be reasonable.
Section 5.5 Cash and Record Handling Requirements. Concessionaire shall prepare
a description of its cash handling and sales recording systems and equipment
which shall be submitted to the Aviation Director for approval. When approved by
the Aviation Director, such systems and equipment, including any revisions
thereto approved by Aviation Director, shall be utilized by Concessionaire in
its operations at Airport.
A. Cash Registers. Concessionaire shall accurately record each sale on
a point of sale resister acceptable to the Aviation Director. Such
register shall be non-resetable and sufficient to supply an accurate
record of all sales, refunds, taxes, etc. on tape or otherwise as
directed by the Aviation Director. Such register shall have a sale item
display visible to the purchaser.
Section 5.6 Credit Cards. Customers shall be permitted to utilize at a minimum
the following credit cards in payment for the purchase of food and beverages:
Visa, Mastercard and American Express.
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Section 5.7 Prohibited Acts. Concessionaire shall not do or permit to be done
anything specified in Sections 5.7.A. through 5.7.F. Specifically, it shall not:
A. Interfere with Access. Concessionaire or its employees, agents or
representatives, shall not do anything which may interfere with free
access and passage in the concession premises or the areas adjacent
thereto, or in the elevators, escalators, streets or sidewalks of the
Airports, or hinder police, fire fighting or other emergency personnel
in the discharge of their duties, or hinder access to utility, heating,
ventilating or air-conditioning systems, or portions thereof, on or
adjoining the concession premises;
B. Interfere with Systems. Concessionaire or its employees, agents or
representatives, shall not do anything which may interfere with the
effectiveness of utility, heating, ventilating or air-conditioning
systems or portions thereof on or adjoining the concession premises
(including lines, pipes, wires, conduits and equipment connected with
or appurtenant thereto) or interfere with the effectiveness of
elevators or escalators in or adjoining the concession premises, or
overload any floor in the concession premises;
C. Permit Smoking Where Prohibited. Concessionaire or its employees,
agents or representatives, shall not do anything contrary to State,
County, or City policy, ordinance, regulation, or signs prohibiting
smoking. At the present time, said restriction prohibits smoking in the
terminal building, including all food and beverage areas;
D. Install Unauthorized Locks. Concessionaire or its employees, agents
or representatives, shall not place any additional lock of any kind
upon any window or interior or exterior door in the concession
premises, or make any change in any existing door or window lock or the
mechanism thereof, unless a key therefore is maintained on the
concession premises, nor refuse, upon the expiration or sooner
termination of this Agreement, to surrender to Aviation Director any
and all keys to the interior or exterior doors on the concession
premises, whether said keys were furnished to or otherwise procured by
Concessionaire, and in the event of the loss of any keys furnished by
Aviation Director, Concessionaire shall pay City, on demand, the cost
for replacement thereof, and the cost of re-keying City's locks. City
shall maintain, and appropriately secure, keys which afford access to
the premises assigned under this agreement;
E. Increase Liability. Concessionaire or its employees, agents or
representatives, shall not do any act or thing upon the concession
premises which will invalidate, suspend or increase the rate of any
fire insurance policy required under this Agreement, or carried by
City, covering the concession premises, or the buildings in which the
same are located or which, in the opinion of the Aviation Director, may
constitute a hazardous condition that will increase the risks normally
attendant upon the operations contemplated under this Agreement. If, by
reason of any failure on the part of Concessionaire after receipt of
notice In writing from City to comply with the provisions of this
paragraph, any fire insurance rate on the concession premises, or any
part thereof, or on the buildings in which the same are located,
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shall at any time be higher than it normally would be, then
Concessionaire shall pay City, on demand, that part of all fire
insurance premiums paid by City which have been charged because of such
violation or failure of Concessionaire; provided, however, that nothing
contained herein shall preclude Concessionaire from bringing, keeping
or using on or about the concession premises such materials, supplies,
equipment and machinery as are appropriate or customary in carrying on
its business, or from carrying on said business in all respects as is
customary;
F. No Loitering or Lodging. Concessionaire or its employees, agents or
representatives, shall not permit undue loitering on or about the
concession premises or use the concession premises, or any part
thereof, for loitering or sleeping purposes.
Section 5.8 Signs, Advertising, & Displays. Concessionaire shall not erect,
construct or place any sign, advertisement or display upon any portion of the
premises without first obtaining the prior written approval of City.
Concessionaire shall not erect, construct or place any sign, advertisement or
display outside the premises.
A. Removal of Signs. Upon the termination, cancellation or expiration
of this Agreement, Concessionaire shall remove, obliterate or paint
out, any and all of its signs, advertising and displays as the Aviation
Director may direct. If Concessionaire falls to do so, City may cause
said work to be done at the expense of Concessionaire.
Section 5.9 Removal of Garbage and Refuse. Concessionaire shall strictly comply
with all Airport and other rules and regulations regarding the disposition of
trash and garbage, shall regularly remove from all concession premises to the
garbage or refuse disposal area all rubbish, refuse and garbage and shall remove
the accumulation of all such material in said garbage or refuse disposal area at
frequent intervals. Accumulation of trash, boxes, cartons, barrels or other
similar items shall not be permitted in any public area at Airport.
Concessionaire shall not remove trash or garbage through public or common areas
(including concourses and sidewalks).
ARTICLE 6
OBLIGATIONS OF CITY
Section 6.1 Maintenance of Public Areas. City shall maintain the public areas of
the Terminal Building;
Section 6.2 Maintenance of Electric Service. City shall, at its sole expense,
provide and maintain to the Leased Premises electric power lines and service
needed by Concessionaire in the conduct of its business. Concessionaire shall be
responsible for distribution of said service within the referenced leaseholds;
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Section 6.3 Employee Parking Facilities. City shall provide employee automobile
parking in accordance with Section 3.7 and toilet facilities for employees of
Concessionaire in such manner similar to or equal that provided for employees of
other Airport agencies; and
Section 6.4 City Shall Cooperate. City shall cooperate with Concessionaire as
reasonably necessary to facilitate Concessionaire's activities in providing food
and beverage service.
ARTICLE 7
DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
Section 7.1 Disadvantaged Business Enterprise Program. It is the policy of City
of Des Moines that Disadvantaged Business Enterprises (DBEs) shall have the
maximum opportunity to share in the benefits from airport concession leasing
through substantial and meaningful participation. As stated in its proposal,
Concessionaire agrees to maintain certified DBE status with a level of DBE
participation at the Airport acceptable to the City and the FAA for the entire
term of the Agreement. Should Concessionaire propose to operate a cart or kiosk
with a qualified DBE firm, the City reserves the right of review and approval of
operation and any subconcession agreement prior to the start of any operation.
Section 7.2 Replacement/Substitutions of DBE(s). The Concessionaire is required
to have a valid arrangement with the DBE(s) designated to fulfill the contract
goal. The Concessionaire will be allowed to substitute the originally designated
DBE(s) only if it is demonstrated to City that the DBE(s) is unwilling or unable
to perform. The Concessionaires ability to negotiate a more advantageous
contract with another DBE firm will not be considered a valid basis for
substitution. If a DBE is unwilling or unable to perform, the Concessionaire
shall inform City in writing and include documentation to justify the
substitution, including a statement from the DBE to be replaced acknowledging
the substitution. The Concessionaire will identify a replacement DBE or document
good faith efforts to replace the DBE with another DBE. If the Concessionaire or
a non-DBE firm performs the work originally committed to a DBE, the
Concessionaire shall submit a revised DBE plan to the Aviation Director
detailing how the DBE goal will be met or will supply documentation detailing
good faith efforts which have been made to meet the goal.
Section 7.3 DBE Reports. Concessionaire shall submit, in the format required by
the Aviation Director, a monthly report of DBE utilization. Said report shall be
submitted with the monthly report of gross receipts as required in Section 4.5
herein.
Section 7.4 Disadvantaged Business Enterprise (DBE) Discrimination. This
Agreement is subject to the requirements of the U. S. Department of
Transportation's regulations, 49 CFR Part 23, Subpart F. Concessionaire agrees
that it will not discriminate against any business owner because of the owner's
race, color, national origin, or sex in connection with the award or performance
of any concession agreement covered by 49 CFR Part 23, Subpart F.
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Section 7.5 Provision Inclusion. Concessionaire agrees to include the above
section in any subsequent concession agreements that it enters and cause those
businesses to similarly include the statements in further agreements.
ARTICLE 8
IMPROVEMENTS
Section 8.1 Improvement Proposal. Concessionaire shall redesign the existing
premises as proposed by Concessionaire within the proposal dated March 24, 1997
which is attached herewith. In accordance with Proposal and contract documents,
City shall have and possess final rights of approval of all plans,
specifications, concepts and build out within assigned premises.
Section 8.2 Condition Of Premises, City shall deliver the concession areas
specified herein to the Concessionaire as they are currently improved, except
for furniture, furnishings, equipment, removable fixtures and supplies owned by
the incumbent Concessionaire. The improvements owned by City include interior
walls, ceilings, floor covering, carpeting, finished flooring, electrical
wiring, air-conditioning ducts and equipment, and may include specific
concession furniture, equipment and furnishings which cannot be removed without
structural damage to the premises, interior decoration and finishing erected or
installed upon said premises, and connections for electrical power and
telephones. The Concessionaire shall accept such premises "as is". Future
improvements to the concourse food and beverage location may be completed by
City. If City elects to complete said improvements, the concession area will a
basic shell with unfinished (drywall) walls and ceilings and unfinished floor.
Utilities will be delivered to the premises.
Section 8.3 Improvements Required of Concessionaire. Concessionaire shall
provide all improvements which are necessary to operate said concession to the
satisfaction of City: including all improvements proposed to be provided in its
proposal to City and accepted by City in accordance with proposal documents.
Section 8.4 Improvement Financial Obligation. Concessionaire guarantees that it
will make capital investments for said concession, exclusive of any capital
improvements made by City, in an amount of not less than $1,300,000 . Said
amount shall be expended on the initial improvements constructed and in
accordance with Concessionaires proposal dated March 24, 1997. Concessionaire
shall provide the City with receipts and other suitable documentation of the
aforementioned required expenditure as furthered referenced in Section 8-19.
Concessionaire shall pay to City an amount equal to the shortfall, if any,
between its total proposed investment and its actual investment as of the first
day of the third month of operation of the last facility constructed. Said
payment shall be made on or before the sixtieth (60th) day after the first day
of the third month of operation of the last facility constructed. Should the
costs to make the referenced improvements exceed the minimum required amount as
stated above, said costs shall be the sole responsibility of the Concessionaire.
Section 8.5 Mid-Term Refurbishment. After the commencement of the fifth year,
and before the end of the sixth year of the term hereof, Concessionaire shall
refurbish the facilities. Said refurbishing
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shall include, but shall not be limited to, all refinishing, repair,
replacement, redecorating and painting necessary to keep said areas in first
class condition. Concessionaire shall not expend less than $209,750 for the
required mid-term refurbishment. Concessionaire shall provide the City with
receipts and other suitable documentation of the aforementioned required
expenditure as furthered referenced in Section 8.19. Concessionaire shall pay to
City an amount equal to the shortfall, if any, between said refurbishment amount
and its actual investment as of the last day of the sixth year hereof Said
payment shall be made on or before the thirtieth day of the seventh year hereof
The amount spent for mid-term refurbishment shall be exclusive of any amount
spent for normal repair and maintenance as determined in the sole discretion of
the Aviation Director. Should the costs to make the referenced improvements
exceed the minimum required amount as stated above, said costs shall be the sole
responsibility of the Concessionaire.
Section 8.6 No Liens. All construction work done, equipment supplied and
installed and interior design and decor furnished by Concessionaire pursuant to
this Section shall be at its sole cost and expense, free and clear of liens for
labor and material and Concessionaire shall hold City harmless from any
liability in respect thereto. Concessionaire shall ensure that no liens are
placed on the improvements, premises or City property.
Section 8.7 Construction & Payment Bond. Within thirty (30) days after award of
this Agreement, Concessionaire shall furnish, at its sole cost and expense, a
Construction and Payment Performance Bond in the principal sum of the amount
proposed by Concessionaire in Section 8.4 herein, to Guarantee compliance with
this Section. This Bond shall be in a form acceptable to City and be issued by a
surety company authorized and licensed to transact business in the State of Iowa
and be for the full amount stated above with City of Des Moines as obligee
conditioned upon full, faithful and satisfactory performance by Concessionaire
of its obligations to construct and install the aforementioned facilities and
improvements and full payment to its contractor(s). The above-stated principal
amount of said Bond or other security deposit, however, may be reduced during
the term hereof as Concessionaire completes the improvements contemplated
thereby. The Bond shall remain in place for one year after the City's acceptance
of the improvements or other period as agreed to by the Aviation Director and
City's legal counsel.
Section 8.8 City Approval of Improvements. Prior to any work being done.,
Concessionaire shall obtain City's written approval of all plans and
specifications. The construction, including permits and approvals, of any and
all areas included under this Agreement shall be formalized through a Private
Construction Agreement between Concessionaire and a contractor of
Concessionaire's choice. Said Private Construction Agreement shall be approved
by City.
Section 8.9 Overall Construction Program. Prior to the construction and
installation of improvements including furniture, furnishings, and equipment,
Concessionaire shall first prepare an overall program including a time schedule
for same, which shall be subject to approval of City. Such schedule shall
include as a minimum the following milestones (1) Conceptual Design; (2) Design
Development; (3) Construction Documents; (4) Plan Check and Permit; (5) Bid; (6)
Construction; and (7) Date of Beneficial Occupancy (DBO).
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Section 8.10 Utilities - Installation. City shall provide utilities to a point
within each Lease Premises area. Concessionaire shall provide distribution of
utilities within the Leased Premises.
Section 8.11 Plans and Specifications. Concessionaire shall, at its own cost and
expense, employ 'competent architects, engineers and interior designers who will
prepare architectural, interior and engineering designs, including detailed
plans, specifications, and cost estimates of all concession improvements, decor
and equipment to be installed in the concession areas. Concessionaire shall at
its own cost and expense and prior to the start of construction. obtain all
necessary permits and licenses. As required by City, Concessionaire shall submit
sets of plans, specifications, and cost estimates for review and approval by
City in accordance with a time schedule furnished by Concessionaire and in
accordance with American Institute of Architects (AIA) Standard Deliverables.
However, schedule dates shall not exceed the following unless a time extension
is approved by City:
Overall Program: 30 days after Notice to Proceed
Conceptual Design: 45 days after Notice to Proceed
Design Development: 30 days after approval of Concept Design
Construction Documents: 60 days after approval of Design Development
"Notice to Proceed", as referenced above, shall be defined as the date of
written notice by the Aviation Director that the Concessionaire may begin the
facility development process.
All such plans, specifications, equipment, interior design and decor and cost
estimates shall be first submitted to City for written approval before
Concessionaire awards or lets any contract for the construction of said
concession improvements, enters into contracts for the purchase of any equipment
to be installed in the concession areas or enters into any contracts for the
installation of the interior decor and design therefore.
Section 8.12 Design Approval. City shall review and approve each design
submitted and may reject any such submittal and require Concessionaire to
resubmit design proposals until they meet with City's approval. Concessionaire
shall include in its project schedule the following review time:
Concepts/Schematic Design.............................10 Calendar Days
Design Development....................................10 Calendar Days
Construction Documents... ............................40 Calendar Days
One set of plans and specifications shall be returned to Concessionaire with
written comments within the above timeframe. Concessionaire shall incorporate
these comments. Concessionaire shall obtain written approval from City and shall
obtain approvals from applicable City agencies before letting of contracts for
the construction of said concession improvements.
Section 8.13 Adherence to Plans and Specifications. Upon approval by City of the
detailed plans, specifications, equipment, cost estimates and the interior
design and decor of the concession
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improvements, Concessionaire shall forthwith cause said work to be commenced and
completed with reasonable dispatch. No substantial change, addition or
alteration shall be made in the scope of the work so approved without first
obtaining City's writing. No structural or other improvements, decor or
equipment, other than as contemplated herein shall be made in or upon the
concession areas without the written consent of City being first had and
obtained, and any conditions relating thereto then stated by City shall become
conditions hereof as if they had been originally stated herein.
Section 8.14 Future Work. After completion of the structural or other
improvements and installation of equipment and interior design and decor, as
above provided, Concessionaire shall not make any structural alterations to the
ceilings, walls or floors of any permanent improvements which it constructs or
installs in the concession areas without first obtaining City's written consent;
provided, however, that Concessionaire may make nonstructural alterations which
the exigencies of the operation of its concession demand in order to promote
efficiency in the operation thereof.
Section 8.15 Building Codes. All structural or other improvements, equipment and
interior design and decor constructed or installed by Concessionaire in the
concession areas, including the plans and specifications therefore, shall in all
respects conform to and comply with the applicable statutes, ordinances,
building codes, rules and regulations of City and such other authorities as may
have jurisdiction over the concession areas or Concessionaire's operations
therein, The approval by City provided above shall not constitute a
representation or warranty as to such conformity or compliance, but
responsibility therefore shall at all times remain in Concessionaire.
Section 8.16 Other Permits. Concessionaire, at its sole cost and expense, shall
also procure all building, fire, safety, and other permits necessary for the
construction of the structural add other improvements, installation of the
equipment and the interior design and decor.
Section 8.17 Contractor's Insurance . Concessionaire shall ensure that the
contractor hired to construct the improvements shall secure the insurance
required by the City prior to the commencement of construction. Concessionaire
shall further ensure that its contractor maintains the required insurance
throughout construction.
Section 8.18 Regulatory Requirements. Concessionaire shall require by any
contract that it awards in connection with the structural or other improvements,
the installation of any and all equipment and the interior designing and decor,
that the contractor doing, performing or furnishing the same shall comply with
all applicable statutes, ordinances, codes, rules and regulations, submit to
City evidence of required insurance coverage and comply With all applicable
provisions of the Civil Code of the State of Iowa.
Section 8.19 As-Builts. Upon completion of the concession improvements,
Concessionaire shall, within a reasonable time thereafter, furnish City, at no
charged (1) a certificate certifying that the improvements have been constructed
in accordance with the approved plans and specifications and in strict
compliance with all laws, rules, ordinance and governmental rules, regulations
and orders; (2) two complete, reproducible sets of as-built drawings covering
the structural and other
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improvements installed by Concessionaire in the concession areas plus the
location and details of installation of all equipment, utility lines, heating,
ventilating, air-condition ducts and related matters. Concessionaire shall keep
said drawings current by updating the same in order to reflect thereon any
changes or modifications which may be made in or to the premises; and (3) as
installation of the foregoing structural and equipment items, including
counters, partitions and furnishing and the interior design and decor is
completed, duplicated receipted invoices on all materials and labor costs
incurred in their installation which Concessionaire enters on its records as
representing its capital expenditures in the concession areas.
Section 8.20 Ownership of Improvements. At the completion of the term of the
agreement, City shall take ownership of all non-inventory and fixed improvements
associated with the development and build out of the referenced concession
delivery area. Concessionaire shall have the rights to the ownership of all
other installed as part of this Agreement, subject to the conditions provided in
Section 8.20.A. through C.
A. Installation Costs. All of the foregoing improvements, decor and
equipment shall be furnished, supplied, installed and constructed by
Concessionaire at its sole cost and expense.
B. Ownership During Term. Ownership of improvements paid for by
Concessionaire shall remain with the Concessionaire over the full term
of this agreement (subject to early termination) with any/all federal
investment tax credits applicable to concession improvements accruing
to Concessionaire.
C. Ownership Upon Termination. Title to all leasehold improvements and
furniture, fixtures and equipment which cannot be removed without
causing any damage shall vest in City upon termination of the contract.
If the Concessionaire's occupancy of a given facility is terminated
pursuant to Sections 10.1 or 11.2 herein and their subsections, City
will reimburse Concessionaire for the unamortized Net Book Value of its
existing structural improvements (and improvements which cannot be
removed without doing damage) based upon a 10-year straight-line
depreciation, with no residual value, provided the Concessionaire has
obtained all necessary approvals for their constriction, and also
provided the Concessionaire has reported each improvement, its costs,
and the date upon which its depreciation began, and also provided that
architectural and design costs do not exceed 10% of the cost of the
improvements and all said costs are properly documented and supported
by receipts and made available for audit. All said costs must be direct
costs 'd by Concessionaire to independent contractors and suppliers for
work actually performed on said premises, materials furnished or
professional services rendered. Costs associated with Concessionaire's
employees shall not be included in the calculation of these costs. To
become reimbursable the Concessionaire shall at its expense provide
City with "as-built" drawings and paid invoices, showing material and
labor costs involved in the construction of the approved structural
improvement within 90 days of the date that the improvement was put
into service. The straight line depreciation shall begin on the first
day of the month in which the improvement was placed in service. City
may require Concessionaire to remove any or all of
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its removable improvements. Title to all improvements for which
Concessionaire is reimbursed or which have been depreciated shall
thereupon vest in City.
ARTICLE 9
MAINTENANCE AND REPAIR
Section 9.1 Maintenance and Repair. Concessionaire shall, at all times and at
its expense, keep and maintain the concession premises, including all structural
and other improvements installed on the premises together with all of its
fixtures, plate and mirror glass, equipment and personal property therein, in
good repair and in a clean and orderly condition and appearance and shall keep
the areas immediately adjacent to the exits and entrances to the concession
premises clean and orderly and free of obstructions.
Section 9.2 Maintenance Program. Concessionaire shall maintain and repair all
interior areas and surfaces of the premises, including sweeping, washing,
servicing, repairing, replacing cleaning and interior painting that may be
required to properly maintain the premises in a safe, clean, wholesome,
sanitary, orderly and attractive condition. Concessionaire shall establish an
adequate preventive maintenance program and the provisions of same shall be
subject to periodic review by City. Said program shall include, without
limitation, the cleaning and repair of all floors, interior walls, ceilings,
lighting, decor and equipment. Regardless of Concessionaire's compliance with
its preventive maintenance program, Concessionaire shall clean such surfaces and
equipment immediately upon being instructed to do so by City or by other
Governmental agencies having such authority.
Section 9.3 Maintenance of Plumbing. Concessionaire shall be responsible for the
repair and maintenance of all plumbing within the leasehold area. Concessionaire
is responsible for all material that is deposited in the plumbing system from
their leasehold and for cleaning the crease traps within their leasehold. Repair
and maintenance of all piping within the leasehold is the responsibility of
Concessionaire. Concessionaire is responsible for the repair and maintenance of
all sewer lines from the leasehold to the point that the line connects to an
Airports main sewer line. Concessionaire is responsible for the repair and
maintenance of all domestic water lines, hot and cold, from the point of
connection of the Airports water meter throughout the leasehold. If
Concessionaire fails to maintain the plumbing system or places liquid, crease,
debris, etc. that results in stoppage or damage to Airports maintained plumbing.
Concessionaire will be billed for the cost thereof, plus fifteen (15%) percent
for administrative overhead, to be paid by Concessionaire to City on demand.
Section 9.4 City May Repair. In the event Concessionaire fails to accomplish
such nonstructural repairs, replacements, rebuilding, redecorating or painting
required hereunder within a period of ten (10) days after written notice from
City so to do, or fails to diligently repair, replace, rebuild, redecorate or
paint all the premises required to be repaired, replaced, rebuilt, redecorated
or painted by Concessionaire pursuant to said schedule, City may, at its option,
and in addition to all other remedies which may be available to it, repair,
replace, rebuild, redecorate or paint any such premises included in said notice,
the cost thereof, plus fifteen (15%) percent for administrative overhead, to be
paid by Concessionaire to City on demand.
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Section 9.5 Right to Enter Premises. City shall have the right to enter upon the
concession premises at all reasonable times to make such repairs, alterations
and replacements as may, in the opinion of the Aviation Director, be deemed
necessary or advisable and, from time to time, to construct or install over, in,
under or through the concession premises new lines, pipes, mains, wires,
conduits and equipment; provided, however, that such repair, alteration,
replacement or construction shall not unreasonably interfere with the use of the
concession premises by Concessionaire and provided rather, that nothing herein
shall be so construed as relieving Concessionaire of any obligation imposed upon
it herein to maintain the concession areas and the improvement and utility
facilities therein. City shall have the right to enter the premises at any time
to maintain or repair emergency systems when loss of life or damage to property
may result.
Section 9.6 Pest Control. Concessionaire shall be solely responsible for a pest
free environment within its leasehold area by maintaining its own pest control
services, in accordance with the most modem and effective control procedures.
All materials used in pest control shall conform to Federal, State and local
laws and ordinances. All control substances utilized shall be used with all
precautions to obviate the possibility of accidents to humans, domestic animals
and pets. Pests referenced above include, but are not limited to, cockroaches,
ants, rodents, silverfish, earwigs, spiders, weevils and crickets. Whenever City
deems that pest control services must be provided to a building or area that
includes premises under this Agreement, Concessionaire shall pay for the costs
of services provided for its premises under this Agreement.
ARTICLE 10
EXPANSION, REDUCTION, RELOCATION
Section 10.1 Reduction of Premises. City may, by appropriate Resolution fully
setting forth the reasons therefore, require Concessionaire to surrender any
portion of the concession premises at any time. City will use its best efforts
to provide substitute space of equal size, with equal frontage in an area
accessible to the public.
Section 10.2 Relocation of Premises. City may, by appropriate Resolution,
require Concessionaire to relocate a given operation to a new location.
Section 10.3 Finding is Required. Sections 10.1 and 10.2 shall only be
implemented upon a finding by City that such reduction/relocation is necessary
to its operation of the airport or to meet the demands of the public.
Section 10.4 Buy-Out. In the event that Concessionaire is required to surrender
in whole or relocate any of its operating premises, City will reimburse
Concessionaire for the unamortized Net Book Value of its existing structural
improvements (and improvements which cannot be removed without doing structural
damage) for that facility or portion thereof, based upon a 10-year straight-line
depreciation, with no residual value, provided the Concessionaire has obtained
all necessary approvals for their construction, and also provided the
Concessionaire has reported each
20
improvement, its costs, and the date upon which its depreciation began, and also
provided that architectural and design costs do not exceed 10% of the cost of
the improvements and all of said costs are properly supported and made available
for audit. All said costs must be direct costs paid by Concessionaire to
independent contractors and suppliers for work actually performed on said
premises, materials furnished or professional services rendered. Costs
associated with Concessionaire's employees shall not be included in the
calculation of these costs. To become reimbursable the Concessionaire shall at
its expense provide City with "as-built" drawings and paid invoices, showing
material and labor costs involved in the construction of the approved structural
improvement within 90 days of the date that the improvement was put into
service, The straight line depreciation shall begin on the first day of the
month in which the improvement was placed in service. The Aviation Director may
require Concessionaire to remove any or all of its removable improvements. City
shall enter into good faith negotiations with Concessionaire relating to the
impact of the change in Premises upon Concessionaires financial investment as
well as Concessionaires Minimum Annual Fee.
ARTICLE 11
TERMINATION/CANCELLATION
Section 11.1 Cancellation or Termination by City. City shall have the right to
cancel or terminate this Agreement in its entirety and all rights ensuing
therefrom at any time upon giving a thirty (30) day written notice to
Concessionaire if any one or more of the events appearing in Subsections 11.1.A.
through 11.1.O. occur:
A. Delinquent Payments/Reports. Concessionaire fails to pay the fees
and charges or to make any other payments required hereunder or fails
to file gross receipts reports or other financial reports when due to
City within ten (10 days after receipt of written notice from City of
delinquency therefore;
B. Recurring Disputes. Concessionaire disputes deficiency assessments
repeatedly or is assessed liquidated damages of more than $5,000
annually;
C. Incomplete Records. Concessionaire falls to maintain adequate
records and accounts reflecting its business and gross receipts;
D. Revocation of Licenses. An act occurs which results in the
suspension or revocation of the rights, powers, licenses, permits and
authorities necessary for the conduct and operation of the business
authorized herein for a period of more than thirty (30) days,
E. Transfer of Interest. The interest of Concessionaire under this
Agreement is transferred, passes to or devolves upon, by operation of
law or otherwise, any other person, firm or corporation without the
written consent of Board,
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F. Consolidation or Dissolution. Concessionaire becomes, without the
prior written approval of City, a successor or merged corporation in a
merger, a constituent corporation in a consolidation or a corporation
in dissolution,
G. Performance. Concessionaire falls to keep, perform and observe any
one or more promise, covenant and condition set forth in this Agreement
on its part to be kept, performed or observed after receipt of written
notice of default from City. However, Concessionaire shall have ten
(10) days after receipt of such notice to correct the deficiency;
H. Attachment. An attachment or execution is levied, or a receiver is
appointed or of any other process of any court of competent
jurisdiction is executed which is not vacated, dismissed or set aside
within a period of ninety (90) days and which does, or as a direct
consequence of such process will, interfere with Concessionaire's use
of the concession premises or with its operations under this Agreement;
I. Insolvency. Concessionaire becomes insolvent, or takes the benefit
of any present or future insolvency statute, or makes a general
assignment for the benefit of creditors, or files a voluntary petition
in bankruptcy, or a petition or answer seeking an arrangement for its
reorganization, or the readjustment of its indebtedness under the
federal bankruptcy laws or under any other law or statute of the United
States, or of any state law, or consents to the appointment of a
receiver, trustee or liquidator of all or substantially all of its
property or its property located within the concession areas;
J. Bankruptcy. By order or decree of court, Concessionaire is adjudged
bankrupt, or an order is made approving a petition filed by any of the
creditors or stockholders of Concessionaire seeking its reorganization
or the readjustment of its indebtedness under the federal bankruptcy
laws, or under any law or statute of the United States, or any state
thereof,
K. Petition for Bankruptcy. A petition under any part of the federal
bankruptcy laws, or an action under any present or future solvency
laws or statute is filed against Concessionaire and is not dismissed
within one hundred twenty (120) days;
L. Control by Receiver. By or pursuant to, or under authority of, any
legislative act, resolution or rule, order or decree of any court,
governmental board, agency or officer having jurisdiction, a receiver,
trustee or liquidator takes possession or control of all or
substantially all of the property of Concessionaire, and such
possession or control continues in effect for a period of one hundred
twenty (120) days;
M. Adverse Operation. Service ceases or deteriorates for any period
which, in the opinion of City materially and adversely affects the
operation of service required to be performed by Concessionaire under
this Agreement
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X. Xxxx. Any lien is filed against the concession premises because of
any act or omission of Concessionaire and such lien is not removed or
enjoined; or
O. Abandonment. Concessionaire voluntarily abandons, deserts, vacates
or discontinues its operation of the business herein authorized.
Section 11.2 Cancellation/Termination by City for Other Reasons. City shall have
the right to cancel or terminate this Agreement in its entirety and all rights
ensuing therefrom anytime after the commencement of the sixth contract year upon
giving a thirty (30) day written notice to Concessionaire.
A. Finding is Required. Section 11.2 shall only be implemented upon a
finding by the Airport Board that Concessionaire's performance as
measured by customer satisfaction surveys, gross revenue performance,
or other performance criteria as established by the Airport Board is
substandard and that such cancellation or termination is in the best
interests of City. However, Concessionaire shall be granted 30 days to
correct any performance deficiency as identified by the City.
B. Buy-Out. In the event that City cancels or terminates the Concession
Agreement in accordance with the provisions of Section 11.2, City will
reimburse Concessionaire for the unamortized Net Book Value of its
existing improvements (including furniture, fixtures and equipment
purchased by Concessionaire) based upon a 10-year straight-line
depreciation for structural improvements and applicable schedules for
other improvements, with no residual value, provided the Concessionaire
has obtained all necessary approvals, and also provided the
Concessionaire has reported each improvement, its costs, and the date
upon which its depreciation began, and also provided that architectural
and design costs do not exceed IO% of the cost of the improvements and
all said costs are properly documented and supported by receipts and
made available for audit. Costs associated with Concessionaire's
employees shall not be included in the calculation of these costs. To
become reimbursable the Concessionaire shall at its expense provide
City with "as-built" drawings and paid invoices, showing material and
labor costs involved in the construction of the approved structural
improvement within 90 days of the date that the improvement was put
into service. The straight line depreciation shall begin on the first
day of the month in which the improvement was placed in service. All
improvements included in the buy-out under this section shall become
the property of City upon payment of the buy-out.
In the event, and only in the event, that City cancels or terminates
the Concession Agreement in accordance with the provisions of Section
11.2 and only Section 11.2, City will also pay Concessionaire an amount
equal to the unamortized portion of the Concessionaires pre-opening
expenses as approved by the City and calculated in accordance with
Generally Accepted Accounting Principles.
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Pre-opening expenses are limited to those expenses incurred directly by
operations under this contract and shall be limited to legal fees
incurred for obtaining required licenses for said facilities,
reasonable corporate travel, and other items deemed reasonable by the
Aviation Director. Said expenses shall not include any cost associated
with the development of the proposal for this operation, including any
associated travel and outside fees.
Section 11.3 City's Rights of Reentry. City shall, as an additional remedy, upon
the giving of written notice of cancellation or termination as above provided in
Sections 11.1 and 11.2, have the right to reenter the premises and every part
thereof on the effective date of cancellation or termination without further
notice of any kind, remove any and all persons therefrom and regain and resume
possession either with or without the institution of summary or legal
proceedings otherwise. Such reentry, however, shall not in any manner affect,
alter or diminish any of the obligations of Concessionaire under this Agreement.
Section 11.4 Surrender of Possession. Concessionaire covenants and agrees to
yield and deliver possession of the concession premises to City on the date of
the termination, cancellation or expiration of this Agreement promptly,
peaceably, quietly and in as good order and condition as the same now are or may
be hereafter improved by Concessionaire of City, reasonable use and wear and
tear thereof excepted.
Section 11.5 Right to Remove Equipment. Subject to the provisions of Article 8
and its subsections herein, Concessionaire shall have the right to remove its
non-fixed equipment, supplies, readily movable furnishings, inventories,
removable fixtures and other trade fixtures and personal property from the
concession premises if said removal will not cause any damage to the facility.
If Concessionaire fails to remove said property, said property shall be
considered abandoned and City may dispose of same as it sees fit.
Section 11.6 Acceptance is Not a Waiver. No acceptance by City of the fees and
charges for other payments specified herein, in whole or in part, and for any
period or periods, after a default of any of the terms, covenants and conditions
to be performed, kept or observed by Concessionaire, other than the default in
the payment thereof, shall be deemed a waiver of any right on the part of City
to cancel or terminate this Agreement on Account of such default.
Section 11.7 Waiver is Not Continuous. No waiver by City at any time of any
default on the part of Concessionaire in the performance of any of the terms,
covenants or conditions hereof to be performed, kept or observed by
Concessionaire shall be or be construed to be a waiver at any time thereafter by
City of any other or subsequent default in performance of any of said terms,
covenants or conditions, and no notice by City shall be required to restore or
revive time as of the essence hereof after waiver by City of default in one or
more instances.
Section 11.8 Survival of Concessionaire's Obligations. In the event this
Agreement is terminated or canceled by City, or in the event City reenters,
regains or resumes possession of the concession
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premises, all of the obligations of Concessionaire hereunder shall survive and
shall remain in full force and effect for the full term of this Agreement unless
otherwise agreed to by the City in writing.
Section 11.9 Exercising City's Right of Cancellation. City may exercise such
rights of termination and cancellation as provided herein by written notice to
Concessionaire after passage of the thirty (30) day time period provided herein
and this Agreement shall terminate the thirtieth (30th) day calculated from the
date of receipt of said notice by Concessionaire or ninety-six (96) hours after
deposit in mail, whichever is first. Any fees due hereunder shall be payable
only to said date of termination and cancellation and thereafter all of
Concessionaire's rights and privileges and City's obligations shall cease and
all improvements made by Concessionaire upon the Leased Premises shall remain in
or upon the Leased Premises and shall become the property of City. It is agreed
that failure of City to declare this Agreement terminated or canceled upon the
default of Concessionaire for any of the reasons set forth herein shall not
operate to bar or stop City from declaring this Agreement terminated or canceled
by reason of any subsequent violation of the terms of this Agreement.
Section 11.10 Cancellation or Termination By Concessionaire. This Agreement may
be canceled or terminated by Concessionaire by giving a thirty (30) day written
notice to City upon the happening of one or more of the occurrences specified in
Sections 11.10.A. through 11.10.E.
A. Permanent Abandonment. The permanent abandonment of Airport's
passenger terminals for use by airlines or the permanent removal of
all certificated passenger airline service from Airport,
B. Material Restriction of Operation. The lawful assumption by the
United States government, or any authorized agency thereof, of the
operation, control or use of Airport, or any substantial part thereof,
in such manner as to materially restrict Concessionaire from operating
thereon for a period of at least ninety (90) consecutive days;
C. Major Destruction of Premises. The complete destruction of one third
or more of the concession premises from a cause other than the
negligence or omission-to-act of Concessionaire, its subcontractors,
agents or employees, and the subsequent failure of City to repair or
reconstruct said premises within twelve (12) months after such
destruction,
D. Federally-Required Amendments. Any exercise of authority as provided
in Section 15.25 hereof which shall so interfere with Concessionaire's
use and enjoyment of the concession premises as to constitute a
termination, in whole or in part, of this Agreement by operation of law
in accordance with the laws of the United States; or
E. Default by City. The default by City in the performance of any
covenant or agreement herein required to be performed by City and the
failure of City to remedy such default for a period of sixty (60) days
after receipt from Concessionaire of written notice to do so.
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Section 11.11 Exercising Concessionaire's Right of Cancellation. Concessionaire
may exercise such fights of cancellation and termination by written notice to
City at any time after the passage of the thirty (30) day period provided herein
and this Agreement shall terminate the thirtieth (30th) day calculated from the
date of receipt of said notice by City or ninety-six (96) hours after deposit in
mail, whichever is first, provided herein and the fees due under this Agreement
shall be payable only to the date of said termination or cancellation and
thereafter all of Concessionaire's rights and privileges and City's obligations
shall cease, and all improvements mad ' e by Concessionaire upon the Leased
Premises shall remain in or upon the Leased Premises and shall become the
property of City. It is agreed that the failure of Concessionaire to declare
this Agreement terminated or canceled upon the default of City for any of the
reasons set forth herein shall not operate to bar or stop Concessionaire from
declaring this Agreement terminated or canceled by reason of any subsequent
violation of the terms of this Agreement by City.
Section 11.12 Removal of Improvements. Concessionaire shall have the rights to
the removal of :.the improvements, installed as part of this agreement, in the
following circumstances set out in Section 11.12A. and B. as follows.
A. Damaged Improvements. In the event that the structural or other
improvements or furnishings and supplies constructed or installed by
Concessionaire in any on or all of the various concession premises are
damaged or destroyed, in whole or in part, from any cause whatsoever,
Concessionaire shall forthwith proceed with the removal of the debris
and damaged or destroyed structural or other improvements, equipment,
furnishings and supplies and thereafter shall proceed with all dispatch
with the reconstruction work necessary to restore the damaged or
destroyed concession premises to the condition they were in prior to
the occurrence of such damage or destruction and all costs and expense
incurred in connection therewith shall be paid by Concessionaire.
B. City May Renovate. If, during the last month of this Agreement,
Concessionaire has removed all or substantially all of its property
from the concession premises, City may enter said premises and alter,
renovate or redecorate the same.
ARTICLE 12
DAMAGE OR DESTRUCTION OF PREMISES
Section 12.1 Damage or Destruction to Premises. In the event of Damage or
Destruction to Premises, Sections 12.1.A. through 12.1.D. shall apply.
A. Partial Damage. If all or a portion of the concession premises are
partially damaged by fire, explosion, the elements, public enemy or
other casualty, but not rendered unin habitable, the same will be
repaired with due diligence by City at its own cost and expense,
subject to the limitations as hereinafter provided, however, that if
said damage is caused by the negligence or omission to act of
Concessionaire, its subcontractors, agents or employees,
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Concessionaire shall be responsible for reimbursing City for the cost
and expenses incurred in such repair.
B. Extensive Damage. If the damages are so extensive as to render the
concession premises or a portion thereof uninhabitable, but are capable
of being repaired within thirty ('30) days, the same shall be repaired
with due diligence by City at its own cost and expense, subject to the
limitations as hereinafter provided, and an appropriate portion of the
fees and charges payable herein shall xxxxx from the time of the damage
until such time as the premises are fully restored and certified by
City as again ready for use; provided, however, that if said damage is
caused by the negligence or omission to act of Concessionaire, its
subcontractors, agents or employees, said fees and charges will not
xxxxx and Concessionaire shall be responsible for reimbursing City for
the cost and expenses incurred in such repair.
C. Complete Destruction. In the event all or a substantial portion of
the concession premises are completely destroyed by fire, explosion,
the elements, public enemy or other casualty, or are so damaged that
they are uninhabitable and cannot be replaced except after more than
thirty (30) days, City, at its discretion, shall not be obligated to
repair, replace or reconstruct said premises, and a proportionate
portion of the fees and charges payable hereunder shall xxxxx as of the
time of such damage or destruction and shall henceforth cease until
such time as the said premises are fully restored. If within twelve
(12) months after the time of such damage or destruction said premises
have not been repaired or reconstructed, Concessionaire may cancel this
Agreement in its entirety as of the date of such damage or destruction.
D. Destruction due to Negligence. Notwithstanding the foregoing, if the
said premises, or a substantial portion thereof, are completely
destroyed as a result of the negligence or omission to act of
Concessionaire, its subcontractors, agents or employees, said fees and
charges shall not xxxxx and City may, in its discretion, require
Concessionaire to repair and reconstruct said premises within twelve
(12) months of such destruction and may pay the cost therefore, or City
may repair and reconstruct the same within twelve (12) months of such
destruction and Concessionaire shall be responsible for reimbursing
City for the cost and expenses incurred in such repair.
Section 12.2 Limits of City's Obligations. In the application of the foregoing
provisions, City's obligations shall be limited to repair or reconstruction of
the concession premises to the same extent and of equal quality as obtained by
Concessionaire at the commencement of its operations hereunder. Redecoration and
replacement of furniture, equipment and supplies shall be the responsibility of
Concessionaire and any such redecoration and refurnishing/reequipping shall be
equivalent in quality to that originally installed.
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ARTICLE 13
INDEMNIFICATION, PERFORMANCE BOND, AND INSURANCE
Section 13.1 Liability. Concessionaire shall comply with the Indemnification,
Faithful Performance Bond & Insurance provisions which follow.
Section 13.2 Indemnification. To the fullest extent permitted by law
Concessionaire agrees to defend, pay on behalf of, indemnify, and hold harmless
City, its elected and appointed officials, employees and volunteers and others
working on behalf of City against any and all claims, demands, suits, or loss,
including all costs connected therewith, and for any damages which may be
asserted, claimed or recovered against or from City, its elected and appointed
officials, employees, volunteers or others working on behalf of City, by reason
of personal injury, including bodily injury or death, and/or property damage,
including loss of use thereof, which arises out of or is in any way connected or
associated with this contract and Concessionaire's activities pursuant to this
Agreement. It is the intention of the parties that City, its elected and
appointed officials, employees, volunteers or others working on behalf of City
shall not be liable or in any way responsible for injury, damage, liability,
loss or expense resulting to Concessionaire and those it brings onto City
premises or on Concessionaire's leasehold due to accidents, mishaps, misconduct,
negligence or injuries either in person or property.
Concessionaire expressly assumes full responsibility for any and all damages or
injuries which may result to any person or property by reason of or in
connection with the use of the concession pursuant to this Agreement, and agrees
to pay City for all damages caused to City facilities resulting from
Concessionaire activities hereunder.
Concessionaire represents that its activities pursuant to this agreement will be
supervised by adequately trained personnel, and Concessionaire will observe all
safety rules for the facility and this activity. Concessionaire acknowledges
that the City has no duty to and will not provide supervision of the activity.
Section 13.3 Faithful Performance Bond. Within thirty (30) days after award of
this Agreement, Concessionaire shall furnish to City, at Concessionaire's sole
cost and expense, and shall keep in full force and effect during the complete
term of this Agreement and for thirty (30) days thereafter, a Faithful
Performance Bond in the continuing penal sum of not less than one fourth of the
minimum annual proposal amount inserted by proposer in Section 4.1.4 herein,
guaranteeing full performance by Concessionaire of all of the terms, covenants
and conditions herein, including, but not limited to, payment of the
compensation specified herein.
Section 13.4 Bond Requirements. Said Bond shall be issued by a surety company
authorized and licensed to transact business in the State of Iowa, be for the
amount stated above with City of Des Moines, as obligee and shall not be subject
to cancellation or non-renewal except after the expiration of thirty (30) day
written notice by certified mail, return receipt requested, to City of Des
Moines.
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Section 13.5 Insurance. Concessionaire shall procure at its expense, and keep in
effect at all times during the term of this Agreement, the following forms of
insurances
A. Commercial General Liability. Commercial general liability
insurance, on an "Occurrence Basis" with limits of liability not less
than $1,000,000.00 per occurrence and $2,000,000.00 aggregate combined
single limit, Personal Injury, Bodily and Property Damage. Coverage
shall include the following extensions: (a) Contractual Liability; (b)
Products and Completed Operations; (c) Independent Contractors
Coverage, (d) Deletion of all Explosion, Collapse and Underground;
(XCU) Exclusions, if applicable; (e) Per contract aggregate.
B. Motor Vehicle Liability Insurance. Concessionaire shall procure and
maintain during the life of this contract/agreement, Motor Vehicle
Liability Insurance with limits of liability of not less than
$1,000,000.00 per occurrence combined single limit Bodily Injury and
Property Damage. Coverage shall include all owned vehicles, all
non-owned vehicles, and all hired vehicles.
C. Liquor Liability. Liquor Liability and General Liability Insurance
Coverage in a minimum amount of $1,000,000. 00 combined single limit
including bodily injury, property damage and injury to means of
support.
D. Workers Compensation. Workers Compensation Insurance, including
Employers Liability Coverage, in accordance with all applicable
statutes of the State of Iowa.
E. Fire. Fire and lightning, extended coverage, vandalism and malicious
mischief and "all risk" insurance, excluding earthquake and flood but
including debris removal, in a form at least as broad as the standard
insurance services office special extended coverage endorsement,
covering all structural or other improvements installed by
Concessionaire in the concession premises , and all fixtures,
furnishings, equipment, merchandise, inventory, and decorations kept,
furnished or installed by Concessionaire. City shall be responsible for
providing fire insurance on the structural shell of the Leased Premises
c
Section 13.6 Increase in Coverage. If during the term of this Agreement, the
Aviation Director reasonably determines that such minimum coverage is
inadequate, the Concessionaire shall be notified of the inadequacy of the
coverage and shall be required to increase said coverage immediately.
Section 13.7 Additional Insured. Insofar as said insurance provides protection
against liability for damages to third parties for personal injury, death, and
property damage, City shall be included as an additional insured; provided such
liability insurance coverage shall also extend to damage, destruction, and
injury to City-owned or City-leased property and City personnel, and caused by,
or resulting from negligent, work, acts, operations, or omissions of
Concessionaire, its officers, agents, employees, invitees, and independent
contractors on the Airport. In addition to providing a policy endorsement, the
following shall be specified to be Additional Insureds. The City of Des Moines,
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Iowa, and including all elected and appointed officials, all employees and
volunteers, all boards, commissions, and/or authorities and their board members,
employees, and volunteers. This coverage shall be primary to the Additional
Insureds, and not contributing with any other insurance or similar protection
available to the Additional Insureds, whether other available coverage be
primary, contributing or excess. City shall have no liability for any premiums
charged for such coverage, and the inclusion of City as an additional insured is
not intended to, and shall not, make City a partner or joint venturer with
Concessionaire in its operations at the Airport.
Section 13.8 Proof of Insurance. Concessionaire shall provide to: Aviation
Director, Department of Aviation, Room 201, Des Moines International Airport,
0000 Xxxxx Xxxxx, Xxx Xxxxxx, Xxxx 00000, at least fourteen (14) days prior to
the date the agreement is to be executed, Certificates of Insurance (XXXXX form)
and/or insurance coverage policies acceptable to City showing all coverage and
endorsements as set forth in this Section. If so requested, Certified Copies of
all policies will be furnished. Concessionaire shall maintain such insurance
with insurance underwriters authorized to do business in the State of Iowa.
Section 13.9 Continuation of Coverage. If any of the above coverages expire
during the term of this contract/agreement, the Insurance Coverage Vendor shall
deliver renewal certificates and/or policies to: Aviation Director, Department
of Aviation, Room 201, Des Moines International Airport, 0000 Xxxxx Xxxxx, Xxx
Xxxxxx, Xxxx 00000, at least ten (10) days prior to the expiration date.
Section 13.10 Cancellation Notice. Workers Compensation Insurance, Commercial
General Liability Insurance and Motor Vehicle Liability Insurance, as described
above, shall include an endorsement stating the following: "Thirty (30) days
Advance Written Notice of Cancellation, Non-Renewal, Reduction and/or material
Change shall be sent to: Aviation Director, Department of Aviation, Room 201,
Des Moines International Airport, 0000 Xxxxx Xxxxx, Xxx Xxxxxx, Xxxx 00000.
Section 13.11 Waiver of Subrogation. To the extent permitted by law,
Concessionaire hereby releases City, elected and appointed officials, employees
and volunteers and others working on behalf of City from any and all liability
or responsibility to Concessionaire or anyone claiming through or under
Concessionaire by way of subrogation or otherwise, for any loss or damage to
property caused by fire or any other casualty, even if such fire or other
casualty shall have been caused by the fault or negligence of City, its elected
and appointed officials, employees or volunteers or others working on behalf of
City. This section shall be applicable and in full force and effect only with
respect to loss or damage occurring during the time of Concessionaire's
occupancy or use, and Concessionaire's policies of insurance shall contain a
clause or endorsement to the effect that such release shall not adversely affect
or impair such policies or prejudice the right of Concessionaire cover
thereunder. Concessionaire agrees that it's policies will include such a clause
or endorsement.
Section 13.12 Code Of Iowa Chapter 670 Governmental Immunities Endorsement. City
reserves the following insurance rights under the Code of Iowa:
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A. Nonwaiver of Government Immunity. The insurance carrier expressly
agrees and states that the purchase of this policy and the naming of
City as an Additional Insured does not waive any of the defenses of
government immunity available to City under the Code of Iowa Section
670.4 as it now exists and as it may be amended from time to time.
B. Claims Coverage. The insurance carrier further agrees that this
policy of insurance shall cover only those claims not subject to the
defense of government immunity under the Code of Iowa Section 670.4 as
it now exists and as it may be amended from time to time.
C. Assertion of Government Immunity . City shall be responsible for
asserting any defense of government immunity, and may do so at any time
and shall do so upon the timely Written request of the insurance
carrier.
D. Non-Denial of Coverage. The insurance carrier shall not deny
coverage under this policy and the insurance carrier shall not deny any
of the right and benefits accruing to City under this policy for
reasons of governmental immunity unless and until a court of competent
jurisdiction has ruled in favor of the defense(s) of Governmental
immunity asserted by City.
ARTICLE 14
FAA PROVISIONS
Section 14.1 Non-Discrimination. During the term of this Agreement
Concessionaire shall comply with the following;
Concessionaire, for itself, its heirs, personal representatives,
successors in interest, and assigns, as a part of the consideration
hereof, does hereby covenant and agree as a covenant running with the
land that in the event facilities are constructed, maintained, or
otherwise operated on the said property described in this Agreement,
for a purpose for which a Department of Transportation program or
activity is extended or for another purpose involving the provision of
similar services or benefits, Concessionaire shall maintain and operate
such facilities and services in compliance with all other requirements
imposed pursuant to 49 CFR, Part 2 1, Non-Discrimination in Federally
Assisted Programs of the Department of Transportation, and as said
Regulations may be amended.
Concessionaire, for itself, its heirs, personal representatives,
successors in interest, and assigns, as a part of the consideration
hereof, does hereby covenant and agree as a covenant running with the
land that: (1) no person on the grounds of race, color, or national
origin shall be excluded from participation in, denied the benefits of,
or be otherwise subjected to discrimination in the use of said
facilities, (2) that in the construction of any improvements on, over,
or under such land and the furnishing of services thereon, no person on
the grounds of race, color, or national origin shall be excluded from
participation in, denied the benefits of, or otherwise be subjected to
discrimination, that Concessionaire shall use the premises in
compliance with all other requirements imposed by or pursuant to 49
CFR, Part 21, Nondiscrimination in Federally Assisted Programs or the
Department of Transportation, and as said Regulations may be amended.
Section 14.2 Civil Rights. Concessionaire assures that it will comply with
pertinent statutes, Executive Orders and such rules as are promulgated to assure
that no person shall, on the grounds of race, creed, color, national origin,
sex, age, or handicap be excluded from participating in any activity conducted
with or benefiting from Federal assistance. This Provision obligates
Concessionaire or its transferee for the period which Federal assistance is
extended to the airport program, except where Federal assistance is to provide,
or Is in the form of personal property or real property or interest therein or
structures or improvements thereon. In these cases, the Provision obligates the
party or any transferee for the longer of the following periods: (1) the period
during which the property is used by the sponsor or any transferee for a purpose
for which Federal assistance is extended, or for another purpose involving the
provision of similar services or benefits; or (2) the period during which the
airport sponsor or any transferee retains ownership or possession of the
property. In the case of contractors, this Provision binds the contractors from
the bid solicitation period through the completion of the contract.
Section 14.3 Just Services. Concessionaire agrees to furnish service on a fair,
equal and not unjustly discriminatory basis to all users thereof, and to charge
fair, reasonable and not unjustly discriminatory prices for each unit of
service, PROVIDED, that Concessionaire may make reasonable and
non-discriminatory discounts, rebates, or other similar types of price
reductions to volume purchasers.
Section 14.4 Subordination to Agreements. This Agreement is subject and
subordinate to the provisions of any agreements heretofore or hereafter made
between City and the United States and/or the State of Iowa relative to the
operation, maintenance, development, or administration of the Airport, the
execution of which has been required as a condition precedent to the transfer of
Federal rights or property to City for Airport purposes, or to the expenditure
of Federal or State of Iowa funds for the improvement or development of the
Airport, including the expenditure of Federal funds for the development of the
Airport in accordance with the provisions of the Federal Aviation Act of 1958,
and as said act may be amended from time to time.
ARTICLE 15
GENERAL PROVISIONS
The appearance of any provision in this section shall not diminish its
importance.
Section 15.1 Assignment and Transfer Prohibited. Concessionaire shall not
mortgage, pledge hypothecate or otherwise encumber nor sell, assign, transfer,
or permit the use by any other, in whole or in part, this Agreement or any of
the concession rights herein granted without the prior written consent of City.
Any attempt to do so shall be voidable at City's option and shall confer no
right, title, or interest in or to this Concession Agreement, or right of use of
the whole or any portion of the
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concession facilities upon any such purchaser, assignee, mortgagee,
encumbrancer, pledgee, or other lien holder, successor, or purchaser.
Section 15.2 Agreement Binding Upon Successors. This Agreement shall be binding
upon and shall inure to the benefit of the successors, heirs and assigns of the
parties hereto. The term concessionaire" shall include any assignee of
Concessionaire on any assignment permitted and approved by City.
Section 15.3 City's Right of Access and Inspection. City, by its officers,
employees, agents, representatives and contractors, shall have the right at all
reasonable times to enter upon the con cession premises for the purpose of
inspecting the same, for observing the performance by Concessionaire of its
obligations under this Agreement or for doing any act or thing which City may be
obligated or have the right to do under this Agreement, or otherwise, and no
abatement of fees and charges shall be claimed by or allowed to Concessionaire
by reason of the exercise of such right. City shall not be obliged to inform
Concessionaire that an inspection or observation is planned, or in progress.
Section 15.4 Attorney's Fees. If City shall, without any fault, be made a party
to any litigation commenced by or against Concessionaire arising out of
Concessionaire's use or employment of the concession premises and as result of
which Concessionaire is finally adjudicated to be liable, then Concessionaire
shall pay all costs and reasonable attorney's fees incurred by or imposed upon
City in connection with such litigation. In any action by City or Concessionaire
for recovery of any sum due under this Agreement, or to enforce any of their
terms, covenants or conditions contained herein, the prevailing party shall be
entitled to reasonable attorney's fees in addition to cost and necessary
disbursements incurred in such action. Each party shall give prompt notice to
the other of any claim or suite instituted against it that may effect the other
party.
Section 15.5 Rules, Regulations, and Ordinances. City shall adopt and enforce
reasonable rules, regulations, and ordinances, which Concessionaire agrees to
observe and obey, with respect to the use of the Airport, which shall provide
for the safety of those using the same; provided that such rules, regulations,
and ordinances shall be consistent with safety and with rules, regulations and
orders of the FAA with respect to aircraft operations at the Airport; and
provided further, that such rules and regulations shall not be inconsistent with
the provisions of this Agreement or the procedures prescribed or approved from
time to time by the FAA. Concessionaire shall not violate, or knowingly permit
its agents, contractors, or employees acting Concessionaire'S behalf to violate
any such Rules and Regulations.
Section 15.6 Compliance with Law. Concessionaire shall comply, at all times
during the term of this Agreement, at its own cost and expense, with all
applicable present and future ordinances and laws of City, county, or state
government or of the United States Government, and of any political division or
subdivision or agency, authority or commission thereof which may have
jurisdiction to pass laws or ordinances with respect to the uses hereunder or
the Leased Premises. In addition,
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Concessionaire shall not allow any improper, immoral, unlawful, or objectionable
activity to be conducted, to be operated, or to occur on any Airport area leased
or assigned to Concessionaire.
Section 15.7 Reservation of Rights. Any and all rights and privileges not
granted to Concessionaire by this Agreement are hereby reserved for and to City.
Section 15.8 Governing Law. This Agreement and all disputes arising hereunder
shall be governed by the laws of the State of Iowa.
Section 15.9 Nonwaiver of Rights. No waiver of default by either party of any of
the terms, covenants, and conditions hereof to be performed, kept, and observed
by the other party shall be construed as, or shall operate as, a waiver of any
subsequent default of any of the terms, covenants, or conditions herein
contained, to be performed, kept, and observed by the other party.
Section 15.10 Severability. If one or more clauses, sections, or provisions of
this Agreement, or the application thereof, shall be held to be unlawful,
invalid, or unenforceable, the remainder and application hereof of such
provision shall not be affected thereby.
Section 15.11 Paragraph Headings. The paragraph headings contained herein are
for convenience in reference and are not intended to define or limit the scope
of any provision of this Agreement.
Section 15.12 Conditions and Covenants. Each covenant herein is a condition, and
each condition herein is as well a covenant by the parties bound thereby, unless
waived in writing by the parties hereto. The invitation for proposals,
instructions to proposers, including Concessionaire's certification form and
affirmative action plan, the basic specification, including any addenda thereto,
the affidavit of non-collusion and the bonds or other security deposits required
under said instructions are a part of this Concession Agreement, and each of the
parties hereto does hereby expressly covenant and agree to carry out and fully
perform each and all of the provisions of said documents upon its part to be
performed. Concessionaire's proposal, dated March 24, 1997, is an integral part
of this agreement and is attached hereto as Exhibit A. Should the Concessionaire
operate a franchised facility as part of any of its operations associated with
this agreement, Concessionaire shall provide a letter or other required
documentation from the franchiser granting the rights to operate the franchise
at the Airport.
Section 15.13 Americans with Disabilities Act (1990). Concessionaire agrees to
comply with the Americans with Disabilities Act (1990) and any amendments and
regulations thereto with regards to Concessionaire's operations and Leased
Premises on the Des Moines International Airport. In addition, Concessionaire
will be solely responsible for fully complying with any and all applicable
present and/or future rules, regulations, restrictions, ordinances, statutes,
laws and/or orders of any Federal, State and/or local Government entity and/or
court regarding disabled access to improvements on the leasehold including any
services, programs, or activities provided by Concessionaire. Concessionaire
will be solely responsible for any and all damages caused by and/or penalties
levied as the result of its non-compliance.
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Section 15.14 Force Majeure. Neither party hereto shall be liable to the other
for any failure, delay or interruption in the performance of any of the terms,
covenants or conditions of this Agreement due to causes beyond the control of
that party including, without limitation, strikes, boycotts, labor disputes,
embargoes, shortage of material, acts of God, acts of the public enemy, action
superior governmental authority, weather conditions, floods, riots, rebellion,
sabotage or any other circumstance for which such party is not responsible or
which is not in its power to control.
Section 15.15 Agreement Construction. Words and phrases herein shall be
construed as in the singular or plural number, and a masculine, feminine, or
neuter sender, according to the context.
Section 15.16 Entire Agreement. This Agreement, together with all exhibits
attached hereto, constitutes the entire Agreement between the parties hereto,
and all other representations or statements heretofore made, verbal, or written,
are merged herein, and this Agreement may be amended only in writing and
executed by duly authorized representatives of the parties hereto.
Concessionaire acknowledges that this Agreement supersedes and cancels any and
all previous agreements on this matter between Concessionaire and City.
Section 15.17 Copartnership Disclaimer. It is mutually understood that nothing
in this Agreement is intended or shall be construed as in any way creating or
establishing the relationship of copartners between the parties hereto, or as
constituting Concessionaire as an agent or representative of City for any
purpose or in any manner whatsoever.
Section 15.18 Development and Protection of Airport. City hereby reserves the
following rights for the Airport.
A. Airport Development. City reserves the right to further develop or
improve the Airport as it sees fit, regardless of the desires or view
of Concessionaire, and without interference or hindrance.
B. Airspace. City hereby reserves for the use and benefit of the
public, the right of aircraft to fly in the airspace overlying the land
herein leased, together with the right of said aircraft to cause such
noise as may be inherent in the operation of aircraft landing at,
taking off from, or in the vicinity of the Airport, and the right to
pursue the operations of same. City reserves the right to take any
action it considers necessary to protect the aerial approaches of the
Airport against obstructions, together with the right to prevent
Concessionaire from erecting or permitting to be erected, any building
or other structure on any Leased Premises, which, in the opinion of
City, would limit the usefulness of the Airport, or constitute a hazard
to aircraft.
Section 15.19 Amendments. All amendments to this Agreement shall be in writing
and duly executed by all parties.
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Section 15.20 License And Permits. Concessionaire shall take or obtain and pay
for all licenses and/or permits as required by Federal, State, or Local law
and/or necessary conduct of its operations under this Agreement.
Section 15.21 Taxes and Assessments. Prior to the commencement date of this
Agreement, the Leased Premises are tax exempt. Concessionaire shall be
responsible for payment of any and all real estate taxes, assessments, and
charges levied against the Leased Premises or any part thereof or any
improvements, on account of Concessionaire's use of the Leased Premises under
this Agreement, and upon any taxable interest of Concessionaire acquired in this
Agreement. Concessionaire shall also be responsible for payment of any and all
personal property taxes levied against any personal property placed upon the
Leased Premises by Concessionaire. Concessionaire shall pay all such taxes,
assessments and charges as the same become due and payable. Concessionaire shall
deliver to City duplicate receipted tax statements showing such taxes,
assessments and charges as having been paid prior to delinquency. Taxes for the
fiscal year in which this Agreement is terminated shall be paid to City upon
such termination in a prorated amount equal to one-twelfth (1/12) of the taxes
due and payable for the preceding fiscal year multiplied by the number of months
in the fiscal year of such termination which elapsed prior to and including the
month of such termination.
Section 15.22 War or National Emergency. During the time of war or national
emergency, City shall have the right to lease the landing area or any part
thereof to the United States Government for military or naval use, and, if such
lease is executed, the provisions of this instrument insofar as they are
inconsistent with the provisions of the lease to the Government, shall be
suspended.
Section 15.23 Subordination to Bond Ordinance. This Agreement shall be
subordinate to the provisions of any Airport Bond Resolution enacted by City. In
the event of any conflicts between this Agreement and the Bond Resolution, the
Bond Resolution shall govern.
Section 15.24 Representations of Concessionaire. Concessionaire represents that
it has the full power and proper authority to make and execute this agreement,
to exercise its rights, powers and privileges as described herein, and to
perform its agreements and covenants set forth herein.
Section 15.25 Right to Amend. In the event that the Federal Aviation
Administration or its successors requires modifications or changes in this
Agreement as a condition precedent to the granting of funds for the improvement
of Airport, Concessionaire agrees to consent to such amendments, modifications,
revisions, supplements or deletions or any of the terms, conditions, or
requirements of this Agreement as may be reasonably required to obtain such
funds; provided, however, that in no event will Concessionaire be required,
pursuant to this paragraph, to agree to an increase in the fees and charges
provided for herein or to a change in the use, provided it is an authorized use,
to which Concessionaire has put the concession premises.
Section 15.26 Section Headings. The section headings appearing herein are for
the convenience of City and Concessionaire, and shall not be deemed to govern,
limit, modify or in any manner affect the scope, meaning or intent of the
provisions of this Concession Agreement.
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Section 15.27 Security - General. Concessionaire shall be responsible for fully
complying with any and all applicable present and/or future rules, regulations,
restrictions, ordinances. statutes, laws and/or orders of any federal, state
and/or local Governmental entity regarding airfield security.
Section 15.28 Compliance with Federal Aviation Regulation (FAR) Part 107 & Part
l39 and Other FARs. Concessionaire shall be responsible to report any
malfunction to City of gates and doors, that are located on the Leased Premises
or controlled by Concessionaire. Concessionaire agrees to comply at all times
with Federal Aviation Regulations Part 107 and Part 139 (and Part 108 if
Concessionaire is an air carrier), City's policies, regulations and ordinances,
City's Federal Aviation Administration approved Airport Security Program, and
any other applicable rules and regulations. Concessionaire further agrees that
any fines levied upon City, its officers, employees, agents, and members of
City's boards and commissions and employees, agents or officers of City's boards
and commissions pursuant to enforcement of Federal Aviation Regulations Part 107
and Part 139 or any other regulation due to acts or omissions by Concessionaire,
Concessionaire's agents, servants, employees, independent contractors, or
patrons shall be borne by Concessionaire. Concessionaire further agrees to
indemnify and hold harmless City, its officers, employees, agents, and members
of City's boards and commissions, and employees, agents, or officers of City's
boards and commissions from any and all fines so levied and from any and all
claims, demands, liabilities, or expenses of every kind or nature related to
such levy or defense to such levy (including, but not limited to, salary of
attorneys employed by City) which City or any of its officers, employees, or
other persons set out above shall or may at any time sustain or incur by reason
of or in consequence of such acts or omissions. Further, Concessionaire shall
exercise exclusive security responsibility for the Leased Premises and, if
Concessionaire is an air carrier, do so pursuant to Concessionaire's Federal
Aviation Administration approved Air Carrier Standard Security Program used in
accordance with 14 CFR, Part 129.
Section 15.29 Notices. Notices required herein shall be given by certified mail
by depositing the same in the United States mail in the continental United
States, postage prepaid. Any such notice so mailed shall be presumed to have
been received by the addressee 96 hours after deposit of same in the mail.
Either party shall have the right, by giving written notice to the other, to
change the address at which its notices are to be received. Until any such
change is made, notices shall be delivered as follows:
City: Aviation Director
Department of Aviation, Room 201
Des Moines International Airport\
0000 Xxxxx Xxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Telephone: 000-000-0000
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Concessionaire: Xxxxx Xxx, President
St. Clair Development Corporation
d/b/a Creative Croissants
0000 Xxxxxx Xxxxxx, Xxxxx X
Xxx Xxxxx, XX 00000
Telephone: 000-000-0000
If notice is given in any other manner or at any other place, it will also be
given at the place and in the manner specified above.
IN WITNESS WHEREOF, The parties hereto have executed this Agreement as of the
date first above written.
CITY OF DES MOINES, IOWA
By:
Xxxxxx X. Xxx, Mayor
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