1
Exhibit 10.31
CONTRACT
for
PRE-DEPARTURE SCREENING SERVICES
at
Norfolk International Airport (ORF)
between
US Airways, Inc.
and
International Total Services, Inc. (ITS)
Contract No: ORF007PD
Date: July 3, 1997
2
TABLE OF CONTENTS
ARTICLE PAGE
------- ----
ARTICLE 1 - DEFINITION AND STANDARD OF SERVICES........................... 1
ARTICLE 2 - CONSIDERATION AND PAYMENT.................................... 2
ARTICLE 3 - TAXES........................................................ 4
ARTICLE 4 - EQUALITY OF TREATMENT........................................ 4
ARTICLE 5 - CONTRACTOR'S EMPLOYEES....................................... 5
ARTICLE 6 - INSURANCE AND INDEMNITY...................................... 7
ARTICLE 7 - INDEMNITY FOR GOVERNMENT ACTIONS............................. 8
ARTICLE 8 - PERIOD OF AGREEMENT/TERMINATION............................... 9
ARTICLE 9 - FORCE MAJEURE................................................ 10
ARTICLE 10 - NOTICES..................................................... 11
ARTICLE 11 - AUDITS...................................................... 12
ARTICLE 12 - NONDISCRIMINATION........................................... 13
ARTICLE 13 - CONFIDENTIALITY AND WAIVER.................................. 13
ARTICLE 14 - MISCELLANEOUS............................................... 15
Contract No: ORF007PD
Date: July 3, 1997
3
PRE-DEPARTURE SCREENING SERVICES AGREEMENT
This Agreement made and entered into as of the first day of March,
1997 by and between US Airways, Inc., (herein referred to as "US Airways"), a
corporation organized and existing under the laws of the State of Delaware and
having its principal place of business at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX
00000, and International Total Services, Inc. (herein referred to as
"Contractor"), a corporation existing under the laws of the state of Ohio and
having its principal place of business at Xxxxx Xxxxxx, 0000 Xxxxxxxx Xx.,
Xxxxxxxxx, Xxxx 00000.
WITNESSETH
WHEREAS, US Airways is a commercial airline;
WHEREAS, Contractor is an independent contractor presently engaged
in providing pre-departure screening services as that term is generally
understood in the air transportation industry (herein referred to as
"Services"); and
WHEREAS, US Airways desires to have Contractor furnish the Services
and Contractor agrees to perform such Services at the airport(s) or portion of
airport(s) (herein referred to as "Site") indicated in Exhibit A under the terms
and conditions of this Agreement;
NOW, THEREFORE, for and in consideration of the foregoing premises
and the mutual covenants and agreements herein contained, the Parties hereto
agree as follows:
ARTICLE 1- DEFINITION AND STANDARD OF SERVICES
1.1 The Services to be provided by Contractor's personnel are defined and
specified in Exhibit A hereto.
1.2 Contractor hereby represents, warrants, and agrees that all Services
provided under this Agreement will conform to all applicable federal,
state and other applicable statutes, regulations, ordinances, and
orders, and that such statutes, regulations, ordinances, and orders will
be deemed to apply to Contractor if such statutes, regulations,
ordinances, and orders would apply to US Airways.
1.3 Contractor warrants that it has obtained all permits and licenses
required by all applicable authorities, including, but not exclusively,
the Federal Aviation Administration ("FAA"), to perform the Services
specified in this Agreement and will continue, at its own expense, to be
so licensed throughout the term of this Agreement.
Contract No: ORF007PD
Date: July 3, 1997
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1.4 Contractor warrants that all employees utilized by Contractor pursuant
to this Agreement will be fully trained, equipped and competent and will
perform their duties in a safe, courteous manner, will work harmoniously
with US Airways personnel, and will observe standards of discipline
satisfactory to US Airways at all times while on the Site.
1.5 Contractor warrants that all Services provided under this Agreement will
comply with rules pertaining to the applicable Site including, those of
the Airport Authority, including, but not limited to, rules concerning
security, drug testing, and parking.
1.6 Except as specified in this Agreement or the Exhibits hereto, Contractor
will be responsible for the acquisition, maintenance, inventory,
storage, and control of all equipment, materials, supplies, and any
special equipment required to perform the Services.
1.7 Contractor acknowledges and agrees that Services may be provided to US
Airways at a specific Site in conjunction with Services that Contractor
may provide to other parties. Notwithstanding anything contained in any
other agreement to the contrary, Contractor agrees that Services
provided for US Airways, its employees, agents, passengers and invitees,
will be provided pursuant to the provisions of this Agreement.
1.8 Should disputes of any nature arise during the term of this Agreement,
pending settlement or resolution of said dispute, both Parties will
proceed diligently with their performance under this Agreement. The
Parties acknowledge that this provision will not operate to require
payment by US Airways of amounts that are the subject of the dispute.
The Parties further agree that this provision will not operate to limit
any of the other rights and remedies provided for in this Agreement.
1.9 The Services performed hereunder by Contractor will be provided to the
sole satisfaction of US Airways.
ARTICLE 2 - CONSIDERATION AND PAYMENT
2.1 In full consideration of the performance of the Services above
described, US Airways will pay Contractor in accordance with the terms
and conditions set forth in this Agreement and such additional terms as
specified in Exhibit B, if any. The rates in Exhibit B will remain firm
for the term of this Agreement. In the event of a conflict between the
contents of Exhibit B and the body of this Agreement, the terms of
Exhibit B will prevail.
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Date: July 3, 1997
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2.2 Contractor will submit a bi-weekly invoice to US Airways for Services
provided to US Airways during the previous two (2) weeks. All invoices
will specify both the applicable contract number and the purchase or
work order number applicable to the specific delivery or services, if
any. The invoice will also include full documentation of the work
performed. US Airways will pay Contractor within thirty (30) days of
receipt of Contractor's invoice. In the event of a dispute over the
invoice, US Airways will pay all amounts that are not in dispute, and
the deadline for payment for the disputed amount will be deemed extended
until ten ( 10) days after the resolution of such dispute. Contractor
agrees that it will submit no invoices or revisions to invoices more
than three (3) months after Services are rendered.
2.3 All invoices will be sent to the address listed below or to such other
addresses as US Airways may specify:
US Airways, Inc.
Norfolk International Airport
Xxxxxxx, XX 00000
Attn: Station Manager- ORFKK
2.4 Payments will not be made unless invoices are signed for by the
addressee specified in Article 2.3.
2.5 Without limiting any other rights or remedies which it may have, US
Airways may withhold any payments due Contractor if the Contractor fails
to comply with any term or terms of this Agreement.
2.6 Where Service is provided to multiple airlines at the same Site, fees
for Service at that Site will be apportioned among those airlines based
on total enplanements at that Site broken down by each checkpoint. The
Parties acknowledge and agree that the allocation method specified in
Exhibit B, if any, will apply instead of that specified in Article 2.6,
but where a Site has a different rule for the apportionment/allocation
of fees that rule will apply. Contractor agrees that in no event will US
Airways be jointly or severally liable for other airlines' unpaid fees.
2.7 Except for costs specifically assigned to and assumed by US Airways
under this Agreement, Contractor acknowledges and agrees that the fees
under this Agreement establish the maximum liability of US Airways to
Contractor for the Services provided under this Agreement. In
particular, the following costs are assumed by Contractor:
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Date: July 3, 1997
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a. Salaries and benefits for Contractor's employees,
including vacation, sick leave and severance pay.
b. Training to fulfill government requirements.
c. Parking arrangements for personnel.
d. Securing any and all permits and licenses required to perform
the Services.
e. Any administrative costs for scheduling.
f. All overhead costs for local offices, support staff, headquarters
staff, uniforms, supplies, dosimeter
badges, etc.
g. All insurance required under this Agreement.
ARTICLE 3 - TAXES
3.1 In addition to the amounts charged under this Agreement, US Airways will
pay any applicable sales and/or use taxes that may be lawfully imposed
by the Government of the United States or any State or political
subdivision thereof upon Contractor for the Services provided to US
Airways under this Agreement provided Contractor promptly notifies US
Airways of the imposition of such taxes. Contractor agrees that the fees
paid under this Agreement will be deemed to include any value added tax
or similar tax imposed by any government. US Airways will not be liable
to Contractor for, and Contractor will hold US Airways harmless from,
all other taxes including, without limitation, any taxes based on gross
receipts, revenue, income or the like, import or export taxes, or
franchise or doing business taxes. If requested by US Airways in
writing, Contractor will not pay any sales or use tax assessed which is
the responsibility of US Airways under this Agreement except under
protest, and if payment is made, Contractor will use its best commercial
efforts to obtain a refund thereof, or at US Airways' request, permit US
Airways to protest such tax in Contractor's name. If all or any part of
such tax is refunded, Contractor will repay to US Airways so much
thereof as US Airways will have paid, including any and all interest
paid thereon. US Airways will pay to Contractor, upon demand, US
Airways' proportionate share of all out of pocket expenses incurred by
Contractor in protesting payment of any such tax and in endeavoring to
obtain such refund at US Airways' request. If US Airways paid the
expenses and the refund applies to customers of Contractor other than US
Airways, then Contractor will make certain that US Airways receives a
reimbursement for a proportionate share of such costs.
ARTICLE 4 - EQUALITY OF TREATMENT
4.1 Contractor agrees that in the event that any Services that may be
provided under this Agreement are provided or
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Date: July 3, 1997
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offered to any third party and the fees for such Services are less than
the fees under this Agreement and/or the terms more favorable, the fees
provided under this Agreement will be deemed reduced to equal such lower
fees and/or the terms of this Agreement will be adjusted to equal such
more favorable treatment. Such reduction or adjustment will be deemed in
effect from the earlier of the date that such fees are offered or
provided to such third party.
ARTICLE 5 - CONTRACTOR'S EMPLOYEES
5.1 The employees of Contractor engaged in performing Services hereunder
will be considered employees of Contractor for all purposes and will
under no circumstances be deemed to be employees of US Airways. US
Airways will have no supervisory power or control over any such
Contractor's employees and any complaint or change in procedure will be
transmitted by US Airways to Contractor who will in turn promptly give
any necessary instructions to its own personnel.
5.2 Contractor is responsible for the direct supervision of its employees
through its designated representative and such representative will in
turn, report to and confer with the designated agents of US Airways with
respect to the Services.
5.3 Contractor agrees to assume full responsibility for any and all
liability to its employees on account of injury, disability, and death
resulting from, or sustained by said employees in the performance of the
Services defined herein.
5.4 At US Airways' request, Contractor agrees that it will remove from
service any employee who, in US Airways' opinion, where such opinion may
not be such that its basis would be a violation of applicable law in the
case of dismissal of an employee, is not performing in the manner
required by this Agreement as soon as a qualified replacement is
available, which will not be more than twenty-four (24) hours. At US
Airways' request, Contractor will immediately remove from service any
employee whose acts or omissions, in US Airways' opinion, where such
opinion will not be such that its basis would be a violation of
applicable law in the case of dismissal of an employee, constitute a
breach of this Agreement.
5.5 Contractor agrees to accept full and exclusive liability for the payment
of any and all taxes, contributions, and other payments for unemployment
compensation and/or pension benefits, Worker's Compensation, employers
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Date: July 3, 1997
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liability insurance or annuities now or hereafter imposed upon employers
by the government of the United States or any State or political
subdivision thereof with respect to such employees, measured by the
wages, salaries, compensation, or other remuneration paid to such
employees, and Contractor will make such payments and will make and file
any and all reports and returns and do all other things necessary to
comply with the laws imposing such taxes, contributions, or other
payments.
5.6 Contractor further agrees to comply with such reasonable directions as
US Airways, or the Site's administrators may give, including, but not
limited to, those relating to directions on parking, time of access to
the Site, movement of the goods within and about the Site, safety and
security. Where requested by US Airways or the appropriate Site's
authority, Contractor agrees that it will require its employees to wear
identification badges at all times while on the Site. Contractor
acknowledges that this request may apply even where US Airways does not
require the same of its own employees or other contractors. Contractor
agrees that Contractor and all of its employees employed to provide the
Services will be cleared by applicable Airport Authority and all such
employees will, if required, wear identification cards issued by such
Airport Authority.
5.7 At its own expense, Contractor will comply with all FAA regulations and
requirements for selection and training of personnel that would apply to
US Airways. In particular, but not exclusively, Contractor will comply
with 14 C.F.R. sections 107.31 and 108.33, and/or such other
directive(s) or regulations that may modify, amend or supersede it,
which require Contractor to conduct background checks for those
employees hired after November 1, 1985 who have unescorted access to any
area on an airport controlled for security reasons. Such checks will
include, at a minimum, obtaining employment histories relating to the
last ten (10) years and confirmation of the most recent five (5) years
of prior employment.
5.8 Contractor agrees and hereby undertakes to release US Airways from and
against all claims for benefits offered by US Airways to its employees.
Contractor further agrees to indemnify US Airways for any loss or
liability to US Airways arising as a result of Contractor or its
employees being adjudicated an employee of US Airways.
5.9 Contractor represents and warrants that the employees used in the
performance of the Services hereunder will have the qualifications,
skills and experience necessary to perform
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Date: July 3, 1997
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the Services and will have the work record as represented to US Airways.
ARTICLE 6 - INSURANCE AND INDEMNITY
6.1 At all times during the tenn of this Agreement, Contractor will carry
and maintain in full force and effect Workers Compensation insurance as
required by applicable law covering all personnel engaged in the
furnishing of Services under this Agreement including Employers
Liability Insurance in an amount not less than five hundred thousand
dollars ($500,000). Contractor agrees to furnish US Airways with
certificates evidencing this insurance required under this provision.
6.2 At all times during the term of this Agreement, Contractor will carry
and maintain in full force and effect Comprehensive General Liability
Insurance for bodily injury including personal injury and property and
automobile liability coverage for owned and non-owned vehicles with a
combined single limit of liability of not less than two million dollars
($2,000,000) Prior to the commencement of Services under this Agreement,
Contractor agrees to furnish US Airways with certificates evidencing
that Contractor has the insurance required under this provision. Each
policy will (1) be primary without right of contribution from any other
insurance that is carried by US Airways, (2) name US Airways and the
Airport Authority as additional insureds, (3) contain a waiver of
subrogation in favor of the additional insureds, (4) contain a provision
requiring Contractor's insurers to provide US Airways with written
notice of any cancellation or adverse material change in such insurance
and that such cancellation or adverse material change will not be
effective with respect to US Airways for thirty (30) days after such
written notice is given, (5) contain a breach of warranty clause in
favor of the additional insureds, and (6) be endorsed to insure
Contractor's liability under this Agreement.
6.3 Contractor acknowledges and agrees that its failure to provide the
certificates of insurance required under this provision and/or US
Airways' failure to demand delivery of said certificates will not
operate or be deemed to operate as a waiver of the insurance and
associated endorsements required under this provision, and Contractor
will hold US Airways harmless from any liability arising as a result of
any such failure(s).
6.4 Contractor agrees and hereby undertakes to release, indemnify, defend,
and save harmless US Airways, its directors, officers, employees, and
agents from and
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against all liability, damages, claims, suits, theft, penalties or
actions of every name and description, including any and all costs and
expenses related thereto, including the defense thereof, attorneys fees
and court costs arising out of or resulting from the act or omission of
Contractor, its directors, officers and employees, and/or in connection
with the performance of this Agreement except to the extent caused by
the negligence or willful misconduct of US Airways.
6.5 Contractor will indemnify, defend and hold harmless US Airways from and
against any and all losses, damages, claims, liabilities, costs and
expenses, including attorney's fees and court costs, that may be
incurred on account of any actual or alleged infringement of any patent,
trademark, copyright, trade secret or other intellectual property rights
in connection with the manufacture, use or disposition of any of the
goods and/or Services supplied hereunder. If the use or other
disposition of the goods or the use or provision of the Services
provided hereunder is enjoined as a result of any such infringement,
Contractor will, at no expense to US Airways (a) obtain for US Airways
and its customers the right to use, sell or otherwise dispose of the
goods and/or Services, or (b) modify such goods or Services or
substitute equivalent goods or Services acceptable to US Airways which
modification or substitution is not infringing and to which the
Contractor will extend the provisions of this paragraph.
ARTICLE 7 - INDEMNITY FOR GOVERNMENT ACTIONS
7.1 Contractor agrees and hereby undertakes to indemnify US Airways against
any and all fines, penalties, and settlements from actions against US
Airways for violations of FAA or other applicable federal, state,
municipal, local or other governmental regulations or statutes
occasioned by Contractor's act or omission or arising in connection with
this Agreement, except where such violation results solely and directly
from US Airways' gross negligence or willful misconduct. Contractor
acknowledges that sums due under this Article may become due both during
and after the term of this Agreement. Contractor agrees to pay any
amounts owed under this Article within thirty (30) days after receipt of
notice in writing from US Airways or its agent. Contractor further
agrees that interest of 1/2 percent, but not more than the amount
permitted by applicable law, per month or part thereof will accrue from
the date of notice on sums not yet paid within thirty-five (35) days
after written notice of sums due under this Article. Any sums that come
due pursuant to this Article which remain unpaid for sixty
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Date: July 3, 1997
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(60) days after demand therefor may thereafter be deducted with
applicable interest from sums due to Contractor from US Airways. For the
purposes of this Article notice will be deemed to be the date on which
the notice was postmarked or hand delivered as the case may be.
Contractor agrees that in no event will the payment of any indemnity
under this Article or deductions from amounts owed to Contractor
pursuant to this Article release or excuse Contractor from its duties
and obligations under this Agreement.
7.2 Contractor agrees that all decisions on the manner in which to manage,
settle, defend or dispose of cases initiated by the FAA or any other
governmental body that result from Contractor's actual or alleged
violation, by act or omission, of any regulations or statutes will be
made by US Airways, in its sole discretion. Contractor acknowledges that
such actions, settlements, and negotiations may take place at any time,
including, but not exclusively, before formal proceedings have begun,
before a complaint is issued, and both before and after any formal
decision is issued.
ARTICLE 8 -PERIOD OF AGREEMENT/TERMINATION
8.1 The period of this Agreement is for two (2) years commencing on March 1,
1997 and terminating on February 28, 1999, unless terminated in
accordance with terms and conditions of this Agreement. Notwithstanding
the termination date specified in this provision, except in case of
termination by Contractor in accordance with the terms of Article 8.3,
Contractor will advise US Airways not less than ninety (90) days in
advance of its intent to cease providing Services at or after the
termination date. Where Contractor continues to provide Services at a
location previously covered by this Agreement after the termination date
specified in this Article, Contractor acknowledges and agrees that such
Services will continue to meet the standards and be governed by the
terms of this Agreement.
8.2 Upon written notice to Contractor from US Airways stating that
Contractor is in breach of this Agreement, Contractor will immediately
remedy such breach. Where Contractor fails to remedy such breach within
one (1) day or to promptly initiate and continue in good faith to remedy
a breach that cannot be reasonably remedied in one (1) day, US Airways
will have the right to terminate this Agreement without further notice
or payment to Contractor. Contractor further agrees that if it commits a
substantially similar breach more than twice in any twelve ( 12) month
period, regardless of remedy, US Airways will
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Date: July 3, 1997
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have the right to terminate this Agreement without further notice or
payment to Contractor. Contractor acknowledges and agrees that this
provision will not operate to limit US Airways' other remedies under
this Agreement.
8.3 Upon written notice to US Airways from Contractor stating that US
Airways is in breach of this Agreement, US Airways will immediately
remedy such breach. Where US Airways fails to remedy such breach within
one (1) day or to promptly initiate and continue in good faith to remedy
a breach that cannot be reasonably remedied in one (1) day, Contractor
will have the right to terminate this Agreement upon thirty (30) days
notice to US Airways. Where Contractor has given such notice of
termination under the terms of this provision, Contractor will be deemed
to have withdrawn such notice of termination in the event that US
Airways remedies the breach prior to the expiration of the thirty (30)
day period specified. US Airways agrees that if it commits a
substantially similar breach more than twice in any twelve (12) month
period, regardless of remedy, Contractor will have the right to
terminate this Agreement upon thirty (30) days notice to US Airways.
Contractor acknowledges and agrees that, provided payment is made on
amounts due to Contractor from US Airways, untimely payments will not be
deemed a breach under this provision. Contractor further acknowledges
and agrees that US Airways' failure to pay amounts that are in dispute
will not be deemed a breach under this provision.
8.4 Notwithstanding any other provision of this Agreement, US Airways will
have the right to terminate this Agreement immediately by giving
Contractor written notice to that effect should US Airways determine
that Services rendered by Contractor under this Agreement have become
unsatisfactory. US Airways will have the right to terminate this
Agreement without cause upon thirty (30) days prior written notice of
its intention to terminate the Agreement.
8.5 Any termination under the terms of this Article will not limit any
obligation or liability accrued by either Party arising hereunder prior
to the termination.
8.6 Except for the fees for Services provided, US Airways will not be liable
for any damages or other liability as a result of the termination of
this Agreement prior to the stated termination date.
ARTICLE 9 - FORCE MAJEURE
9.1 Notwithstanding anything to the contrary herein contained, it is agreed
that either Party hereto will be relieved of
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its obligations hereunder in the event and to the extent that
performance hereof is delayed or prevented by any cause beyond its
control and not caused by the Party claiming relief hereunder,
including, without limitation, acts of God, public enemies, war,
insurrection, acts or orders of governmental authorities, fire, flood,
explosion, riots, strikes or the recovery from such cause ("force
majeure"). Contractor agrees that where relief is obtained under this
provision to make its best efforts to resume Service and, where
applicable, to meet the timetable for the Services specified in Exhibit
A. Contractor further agrees to consult with and advise US Airways of
any anticipated delay or failure, as soon as it becomes aware of such
anticipated delay or failure or the possibility thereof, whether for
force majeure or not, and, where applicable, the re-establishment of
applicable timetables.
9.2 In the event that US Airways' operations at the Site are restricted by
acts or orders of governmental authorities, damage to the facility or
any other cause, then US Airways will have the right, upon written
notice to Contractor, to suspend this Agreement while such conditions
exist. Notwithstanding any other provision of this Agreement, in the
event that Contractor fails to provide the Services contracted for under
this Agreement for any reason, including force majeure, and such failure
continues for more than one (1) hour, US Airways may, at its sole
option, acquire similar Services from another provider or provide
Services for itself. Contractor agrees to reimburse US Airways for the
difference in cost between those specified under this Agreement and
those paid by US Airways to a different service provider, except where
such failure results from force majeure. In acquiring Service from
another provider, US Airways may suspend this Agreement for a period of
up to thirty (30) days longer than the condition leading to Contractor's
failure to provide service or terminate this Agreement. Where such
failure, regardless of cause, continues for thirty (30) or more days,
then US Airways will have the right to terminate this Agreement
immediately upon written notice to Contractor, without any liability to
Contractor by reason of such termination.
ARTICLE 10 - NOTICES
10.1 Except where specified elsewhere in this Agreement, any and all notices,
approvals or demands required or permitted to be given by the Parties
hereto will be sufficient if made in writing and sent by certified mail,
postage prepaid or delivered by hand. Where sent by mail,
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such notices will also be sent by facsimile. Notices to US Airways will
be addressed to:
Via U.S. Mail - Via Air Courier Service -
US Airways, Inc. US Airways, Inc.
Pittsburgh International Airport US Xxxxxxx Xxxx. #0 - 0xx Xxxxx
P. O. Box 12346 Commerce Drive - RIDC Park West
Pittsburgh, PA 15231-0346 Xxxxxxxxxx, XX 00000
Attn: Director - Customer Services Attn: Director- Customer Services
Purchasing - PIT/H310 Purchasing
Fax: (000)000-0000 Fax: (000)000-0000
and to Contractor addressed to:
ITS
Crown Centre
0000 Xxxxxxxx Xx.
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx
Vice President, Sales
Fax: 000-000-0000
or to such other addresses in the United States as either Party may specify by
notice to the other as provided herein. Notices
will be deemed served as of actual receipt.
ARTICLE 11 - AUDITS
11.1 Contractor will at all times keep complete and accurate books, records
and documents from which may be determined the basis for billing and for
compliance with this Agreement. Such books, records, and accounts will
be open for inspection, examination, audit and copying by US Airways or
US Airways' authorized representatives at all reasonable times during
the term of this Agreement and for three (3) years thereafter. US
Airways will have the right to have its auditors, agents of the FAA or
other governmental agencies, or other business related personnel
accompany its agents for such auditing. Contractor will cooperate with
those conducting the audit.
11.2 Contractor will at all times keep complete and accurate books, records
and documents from which may be determined Contractor's compliance with
all statutes, regulations, orders, ordinances and security programs.
Such books, records, and documents will be open for inspection,
examination, audit and copying by US Airways or US Airways' authorized
representatives at all times during Contractor's hours of operation of
any facility during the term of this Agreement and for five (5) years
from its termination, regardless of the cause of that termination.
Contractor agrees that at all times when a facility is subject to audit,
Contractor will have an employee on site capable of locating and gaining
access to all documents
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subject to audit. Where Contractor no longer services a particular Site,
Contractor will cooperate with US Airways in providing such access. US
Airways will have the right to have its auditors, agents of the FAA or
other governmental agencies, or other business related personnel
accompany its agents for such audits. Contractor will cooperate with
those conducting the audit. In the event of termination of this
Agreement for any cause, Contractor will provide to US Airways such
documentation of regulatory compliance as US Airways requests.
11.3 Upon written request of Contractor, made within thirty (30) days of an
audit conducted pursuant to this Article, US Airways will provide
Contractor with a copy of all written audit results within thirty (30)
days of such written request for a copy of the audit conducted by US
Airways or its authorized representatives.
ARTICLE 12 - NONDISCRIMINATION
12.1 In the performance of this Agreement, Contractor will comply with all
applicable statutes, requirements, orders and regulations of the Federal
Government and other applicable jurisdictions, pertaining to
nondiscrimination in employment and facilities including, without
limitation, the provisions contained in Executive Order 11246 as amended
and as may be further amended in the future, titled "Equal Employment
Opportunity" and 41 C.F.R.sections 60-1.4(a), 60-250.4 and 60-741.5(a)
which are incorporated herein by reference.
12.2 In the performance of Services to passengers on behalf of US Airways,
Contractor will not discriminate on any prohibited basis, including
without limitation on the basis of handicap, consistent with all
federal, state and local statutes, regulations and orders, as such may
be added to, amended, recodified, or revised, including those assigned
to the air carrier thereunder, including without limitation, 14 C.F.R.
Part 382 (the Regulations). Contractor further agrees to comply with the
directives issued by US Airways' Complaints Resolution Official in
accordance with the Regulations.
ARTICLE 13 - CONFIDENTIALITY AND WAIVER
13.1 Confidential Information means any information, in any form, including,
without limitation, the terms of this Agreement, written documents, oral
communications, recordings, videos, software, databases, business plans,
and electronic/magnetic media, provided to or observed by Contractor
pursuant to this Agreement, including information owned or provided by
US Airways and/or third
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parties, excepting information that is generally available to the
public. Contractor agrees that it will maintain all Confidential
Information in confidence and use it solely for purposes of performance
under this Agreement. Such Confidential Information will be distributed
within Contractor's organization only to personnel with a need to know
such information for purposes relating to this Agreement or in
compliance with a court order or statutory requirement. In no event will
Contractor disclose any Confidential Information to any third parties
except subcontractors and independent consultants and then only where
approved by US Airways in advance and subject to the execution of a
confidentiality agreement acceptable to US Airways. Contractor further
acknowledges and agrees that it will maintain the confidentiality of US
Airways' operating manuals even if the information contained in them
becomes available to Contractor from a non-confidential source.
13.2 Contractor acknowledges and agrees that any information shared or given
to US Airways pursuant to this Agreement on a confidential basis may be
shared by US Airways on a confidential basis with US Airways Group, Inc.
and US Airways Affiliates, where US Airways Affiliates is defined as
those other companies that operate under a US Airways trade name,
subsidiaries of US Airways Group, Inc., members of US Airways Express,
airlines for which US Airways does purchasing and those airlines' parent
corporations, and any airline(s) with which US Airways has or may have
in the future an alliance, where alliance will be defined as such
airline(s) and US Airways having a code-sharing agreement as that term
is used in the aviation industry.
13.3 Upon request by US Airways to Contractor, Contractor will immediately
return to US Airways at Contractor's expense all US Airways documents
and all copies of such documents in possession or under the control
either directly or indirectly of Contractor or its agents. Contractor
acknowledges and agrees that US Airways will have the right to exercise
this right as many times as it deems necessary throughout the term and
even after the termination of this Agreement, regardless of the cause of
that termination.
13.4 Contractor acknowledges that the terms and conditions of this Agreement
will be deemed and treated as Confidential Information as defined in
this Agreement.
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Contract No: ORF007PD
Date: July 3, 1997
17
ARTICLE 14 - MISCELLANEOUS
14.1 Titles - Article titles and subheadings contained herein are inserted
only as a matter of convenience and for reference. Such titles in no way
define, limit, or describe the scope or extent of any provision of this
Agreement.
14.2 Nonexclusive - Nothing in this Agreement will be deemed to act as a bar
to US Airways' solicitation or purchasing Services from any other
company or performing Services itself at any time.
14.3 Survival - The representations, warranties and indemnities contained
herein will survive the termination of this Agreement.
14.4 Enforceability - If, for any reason, any portion of this Agreement will
be unenforceable or determined by a court of competent jurisdiction to
be in violation of or contrary to any applicable statute, regulation,
ordinance, order, or common law doctrine, then that portion will be of
no effect. Nevertheless, the balance of the Agreement will remain in
full force and effect as if such provision were never included.
14.5 No Waiver - Except as otherwise specifically provided in this Agreement,
a waiver by either Party of any breach of any provision of this
Agreement, or either Party's decision not to invoke or enforce any right
under this Agreement, will not be deemed a waiver of any right or
subsequent breach, and all provisions of this Agreement will remain in
force.
14.6 Whole Agreement - This Agreement represents the entire agreement between
the Parties hereto and any additions, deletions or modifications will
not be binding on either Party unless accepted and approved in writing
by duly authorized representatives of both Parties.
14.7 Assignment - The Parties agree and covenant, except as specifically
provided in this Agreement, that this Agreement and the rights and
obligations established thereunder, may not be assigned in whole or in
part without the prior written consent of the other, where such consent
will not be unreasonably withheld, except that US Airways may assign its
rights to US Airways Group, Inc., any wholly owned subsidiaries of US
Airways Group, Inc. or any successor through merger, asset sale,
operation of law or the like.
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Contract No: ORF007PD
Date: July 3, 1997
18
14.8 Severability - The Parties acknowledge and agree that where Services are
provided at more than one location under this Agreement there will be
deemed to be, and this Agreement will be interpreted as though there
were, a separate contract in place for each location.
14.9 Choice of Law - The Parties agree that this Agreement will be governed
by the Laws and Common Law of the United States and Commonwealth of
Virginia as though the entire contract was performed in Virginia and
without regard to Virginia's conflict of laws statutes. The Parties
further agree that they consent to the jurisdiction of the Courts of
Virginia or the federal courts located within the Commonwealth of
Virginia and waive any claim of lack of jurisdiction or forum non
convenient.
14.10 Advertising - Neither party to this Agreement will use the name of the
other party for advertising purposes without the prior written consent
of the other Party, which consent may be withheld in that other Party's
sole discretion.
IN WITNESS WHEREOF, US Airways, Inc. and Contractor have caused this instrument
to be executed by their duly authorized representatives on the day and year
first above written.
For International Total For US Airways, Inc.
Services, Inc.
------------------------------ ------------------------------
By: Xxxxxx X. Xxxx By: Xxxxxxx X. Xxxxx
Title: Vice President, Sales Title: Manager - Airport
Services Purchasing
Date: _______________________ Date: _______________________
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Contract No: ORF007PD
Date: July 3, 1997
19
EXHBIT - A
PAGE 1 OF 4
DEFINITION OF SERVICES
----------------------
PRE-DEPARTURE SCREENING SERVICES
US AIRWAYS, INC. CONTRACT NUMBER XXX000XX
XXXXXXX INTERNATIONAL AIRPORT (ORI;)
1.0 LOCATION:
1.1 Contractor will provide Services at Norfolk International Airport,
Concourse A. Contractor acknowledges that US Airways either currently,
or may in the future, share this location with other airlines.
2.0 SPECIFICATION OF SERVICES:
2.1 Services to be provided by Contractor's personnel will be defined as and
include the following:
a. Providing pre-departure screening services as required by, but not
limited to, those services mandated by the Federal Aviation
Regulations (FARs), the Air Carrier Standard Security Program
(ACSSP) and the Checkpoint Operations Guide (COG), as they exist now
and as amended from time to time, and all requirements that they
incorporate by reference.
b. Upon request, where such request may be specified as continuing,
promptly distributing to US Airways all incidents and other required
reports. All such reports will be legible and credible.
c. Upon request, where such request may be specified as continuing,
providing US Airways with a list all weapons found during any given
month. Contractor will maintain records sufficient to comply with
this request for not less than two years.
d. Providing an on site manager who possesses experience with, and
knowledge of, airline operations in a management capacity. This
manager will be responsible for maintaining and supervising
communications with US Airways' on-site managers on all pertinent
issues, both positive and negative. This manager or his or her
designee must have Air Transport Association of America (ATA)
Training Certification and be Ground Security Coordinator (GSC)
qualified. The manager or management designee is required to be
available, at US Airways' discretion, to attend the local ATA
airport managers meetings and/or for conferences with US Airways'
Station Manager or other US Airways personnel as designated by the
US Airways Station Manager. Such
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Contract No: ORF007PD
Date: July 3, 1997
20
airport managers meetings are currently held the second Tuesday of
each month at 13:00 hours at the airport conference room, but both
the time and place are subject to change.
e. Furnishing qualified personnel in such numbers and at such times as
required during the Agreement. Contractor will have arrangements to
immediately provide replacement personnel for those individuals
unable to report for duty in order to maintain minimum staffing
requirements as defined in the FARs, ACSSP or COG.
f. Having thorough knowledge of and complying with all ATA and other
applicable security training requirements. When directed by US
Airways, where such direction may be specified as continuing,
Contractor agrees to emphasize the ideals of customer service in
training classes as specified by US Airways.
g. Advising US Airways at least two (2) weeks in advance of the time,
date and place of each and every training class conducted by
Contractor for its personnel or in which those personnel will
participate who work for Contractor in performing this Agreement and
allow one or more representatives of US Airways to attend and/or
participate in each class. Such participation may include allowing
the US Airways representative to address the class.
h. When required by the FAA, applicable airport authority, or
contract, acquiring office space within the airport grounds. For
the purpose of administering this contract, office space is
required by US Airways.
i. Furnishing personnel who will maintain the Site's image and
standards, and be fully outfitted with contractors uniforms and
other necessary equipment, such as, but not limited to two-way
radios.
j. Upon request, where such request may be specified as continuing,
providing US Airways with a current list of all of Contractor's
employees engaged in performance of the Services and provide updates
to that list whenever there is a change.
k. Performing all evaluations required by the FAA. Upon request, where
such request may be specified as continuing, Contractor will provide
US Airways with a copy of all completed evaluations within two
business days of their completion.
2.2 Contractor will provide additional services as requested by US Airways
pursuant to the terms of this Agreement. Contractor may, with US
Airways' consent, increase its fees by an amount equal to Contractor's
increased costs associated with such additional services. Contractor
agrees to provide US Airways with documentation that substantiates the
increase. Such increase will be
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Contract No: ORF007PD
Date: July 3, 1997
21
effective from the date when the additional services are commenced. Such
increases will not include costs associated with increases in the number
of personnel billable pursuant to this Agreement. US Airways reserves
the right to discontinue additional services implemented pursuant to
this provision. In such case the increase in the fees will be eliminated
to the extent of the change. US Airways also reserves the right to
reduce services. Contractor agrees to reduce its fees accordingly and to
cooperate with US Airways in supplying all information necessary to
calculate the reduction.
2.3 Contractor will make its best efforts to accommodate demands for
increases in the number of personnel on less than twenty-four (24) hours
notice. Contractor will accommodate demands for increased staffing with
twenty-four (24) or more hours notice. Contractor will accommodate any
demands for any decreases in staffing requirements immediately upon
written notice. For the purposes of this provision, written notice will
be sufficient if hand delivered to Contractor s on site manager. US
Airways agrees that where Contractor must pay overtime wages as
specified in this Agreement in order to accommodate a request for an
increase in staffing on less than twenty four (24) hours notice, US
Airways will pay such overtime rates.
2.4 Contractor agrees that the Station Manager, or his or her designee, at
each Site where Service is provided may determine the level of service
to be provided by Contractor. Such levels will be subject to adjustment
pursuant to this Agreement in US Airways' sole discretion. The
applicable Station Manager or their designee will inform Contractor on a
monthly basis of the estimated level of service that will be required
for the coming month. Where such information is not provided Contractor
will assume that no change is required from the previous month.
2.5 Contractor agrees that US Airways may, at its sole discretion, create,
change or cancel incentive programs for those Contractor employees
providing pre-departure screening services. Such programs may include
rewards of money, gifts, or other awards as designated, determined, and
provided by US Airways to be given by Contractor to such employees of
Contractor as designated and determined by US Airways. Contractor
acknowledges that such rewards will not reflect US Airways' belief that
such employees performance is beyond that required by this Agreement,
but only that, considering the importance of pre-departure screening, US
Airways desires to motivate Contractor's employees to perform their
tasks to the best of their
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Contract No: ORF007PD
Date: July 3, 1997
22
abilities and reward success. Contractor agrees to aid US Airways in
publicizing such incentive programs by permitting US Airways to provide
information concerning such programs to Contractor's employees.
Contractor agrees that in the event that such a program is implemented
that any such rewards will be accepted by Contractor on behalf of its
employees, and delivered in their entirety to the Contractor employees
designated by US Airways. Contractor acknowledges that such programs may
be implemented by US Airways in a non-uniform fashion among its various
stations and pre-departure screening service providers. Contractor
agrees that such awards, when given to its employees, will be properly
reported for the purposes of the recipients' applicable employment
taxes, and that such gifts will not in any manner reduce that employee's
normal wages. Contractor further agrees that where no program is in
effect, but a Contractor employee's actions in a particular circumstance
is, in US Airways' sole opinion, worthy of reward, Contractor agrees to
deliver to such Contractor employee such reward as US Airways designates
and provides as though such a program as described in this provision
were in effect. In order that such rewards not create a tax burden on
Contractor in relation to tax contributions that Contractor must pay in
relation to its employees' wages, Contractor will supply US Airways with
such information as required so that the appropriate gross up on the
applicable award may be calculated and such amount will be paid to
Contractor in addition to the amounts given to Contractor pursuant to
this provision. US Airways agrees that such incentive programs will be
implemented in such a manner as to not discriminate on any statutorily
prohibited basis.
3.0 STAFFING AND SCHEDULE:
3.1 The hours of operation are currently Monday through Sunday from 050
hours to 1900 hours, but are subject to change.
3.2 The estimated daily staffing to be provided by Contractor will be as
follows:
PBS/Exit Lane Guard 90.5 Hours
CSS 21 Hours
Manager 4 Hours (non-billable)
3.3 Contractor acknowledges and agrees that the staffing.and daily schedule
specified in this exhibit is only an estimate and agrees that staffing
levels and schedule will be determined by US Airways in its sole
discretion.
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Contract No: ORF007PD
Date: July 3, 1997
23
4.0 EQUIPMENT:
4.1 There is one (1) checkpoint consisting of two (2) walk-through metal
detectors and two (2) X-ray machines that will be monitored by
Contractor pursuant to this Agreement. The metal detectors and X-ray
machines will be furnished and maintained by US Airways.
4.2 All other equipment will be furnished and maintained by the Contractor
at its sole expense.
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Contract No: ORF007PD
Date: July 3, 1997
