CONCESSION AGREEMENT AND LEASE
PIEDMONT TRIAD AIRPORT AUTHORITY
AND
CREATIVE HOST SERVICES, INC.
1997
THIS CONCESSION AGREEMENT AND LEASE (hereinafter called "Concession
Agreement"), made and entered this the 1st day of November, 1997, by and between
the PIEDMONT TRIAD AIRPORT AUTHORITY, a body politic and corporate (hereinafter
referred to as the "Authority"), and CREATIVE HOST SERVICES, INC., a California
corporation (hereinafter called "Concessionaire");
W I T N E S S E T H:
WHEREAS, the Authority owns and operates the Piedmont Triad
International Airport in Guilford County, State of North Carolina (hereinafter
referred to as the "Airport"), and the Authority maintains at the Airport a
passenger terminal building (hereinafter referred to as the "Terminal Building")
to accommodate passengers departing from and arriving at the Airport; and
WHEREAS, the Authority wishes to provide facilities in the public areas
of the Terminal Building to serve food and beverages for the accommodation of
Airport passengers and the general public, and, pursuant to a Request for
Proposals, the Authority has solicited qualified parties to submit proposals to
construct leasehold improvements upon, and to equip and operate such facilities;
and
WHEREAS, the Authority has decided to accept the proposal submitted by
the Concessionaire in response to such Request (such proposal and the
information submitted by Concessionaire to the Authority in connection therewith
to be referred to hereinafter
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as the "Proposal"), and to award to the Concessionaire the right to serve food
and beverages in the public areas of the Terminal Building subject to the terms
and conditions of this Concession Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter contained, the parties hereto agree, for
themselves, their successors and assigns, as follows:
ARTICLE I
DEFINITIONS
In addition to the terms defined in the introduction to this Concession
Agreement, the following terms shall have the meanings indicated below when used
in this Concession Agreement:
1. "Executive Director" shall mean the Executive Director of the
Authority or, if the Authority shall adopt another title for its chief
administrative officer, then its chief administrative officer. Any authority or
discretion granted herein to the Executive Director may be exercised by his
authorized representative.
2. "Date of Beneficial Occupancy" shall mean (i) the first day of the
calendar month next following the date on which Concessionaire's Improvements to
the entire Premises are substantially completed under ARTICLE V hereof and the
entire Premises are ready for occupancy by Concessionaire or
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(ii) October 1, 1998, whichever comes first. The Authority shall notify the
Concessionaire of the date which shall constitute the Date of Beneficial
Occupancy hereunder.
3. "Landside Premises" shall mean the area on the enplaning level of
the Terminal Building, in the landside portion thereof, containing __________
square feet, more or less, which is colored in blue on Exhibit A hereof.
4. "Lease Year" shall mean a period of twelve consecutive calendar
months beginning on June 1, 1998, and on each June 1 thereafter during the Term
hereof.
5. "North Concourse Premises" shall mean the area on the enplaning
level of the Terminal Building, in the North Concourse thereof, containing
_______ square feet, more or less, which is colored in blue on Exhibit A hereof.
6. "Premises" shall mean the Landside Premises, the North Concourse
Premises, the South Concourse Premises and the Storage Premises, all as defined
in this ARTICLE I.
7. "South Concourse Premises" shall mean the area on the enplaning
level of the Terminal Building, in the South Concourse thereof, containing
_______ square feet, more or less, which is colored in blue on Exhibit A hereof.
If the Authority constructs the proposed addition to the South Concourse
Premises described in Paragraph 3 of ARTICLE V hereof, then from and after the
substantial completion of such addition, the South Concourse Premises shall also
include the portion of such addition, as
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described in said Paragraph 3, which is to be added to the South Premises.
8. "Storage Premises" shall mean the area on the service level of the
Terminal Building containing square feet, more or less, which is colored in blue
on Exhibit C hereof.
ARTICLE II
LEASE OF PREMISES TO CONCESSIONAIRE
The Authority hereby leases the Premises unto the Concessionaire, and
the Concessionaire hereby hires and takes the Premises from the Authority, for
the uses and subject to the terms, conditions and covenants hereinafter set
forth.
ARTICLE III
TERM
1. Initial Term. Unless sooner terminated under the other provisions of
this Concession Agreement, the initial Term of this Concession Agreement shall
begin on December 6, 1997 and continue to and including May 31, 2008. The period
from December 6, 1997 to May 31, 1998 shall be referred to hereinafter as the
"Transitional Term," and the period from June 1, 1998 through May 31, 2008 shall
be referred to hereinafter as the "Regular Term."
2. Extension of Term. If Concessionaire complies with all of the terms
and conditions of this Concession Agreement to be kept and performed by
Concessionaire for the entire length of the
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initial Term, and if the Authority desires to extend the Term of this Concession
Agreement for an additional five years, beginning on June 1, 2008 and continuing
until May 31, 2013, the Authority shall notify Concessionaire, on or before June
1, 2007, of the Authority's desire to extend the Term hereof for such period and
the changes, if any, which the Authority proposes to make to the terms and
conditions hereof to be applicable during such extension of the Term, including,
without limitation, such changes, if any, which the Authority desires to make in
the Minimum Annual Guarantees and percentage rents of the Concessionaire under
ARTICLE VI hereof. If the Concessionaire agrees to extend the Term hereof for
such period as proposed by the Authority, the Concessionaire shall notify the
Authority of its agreement to such extension on or before September 1, 2007, in
which case the Term of this Concession Agreement shall be extended for such
additional five year period, unless sooner terminated under the other provisions
hereof, and the terms and conditions of this Concession Agreement shall be
deemed to have been amended, effective as of the beginning of such five year
period, in the manner proposed by the Authority.
ARTICLE IV
USE OF PREMISES AND RIGHTS OF CONCESSIONAIRE
1. Use of the Premises. Concessionaire shall use the Landside Premises,
the North Concourse Premises and the South Concourse Premises for the
preparation and sale to the public of the food and beverages, both alcoholic and
non-alcoholic,
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described by Concessionaire in its Proposal, for the preparation and sale of
such other food and beverage items as shall be approved from time to time by the
Executive Director, for the sale of packaged coffee and coffee mugs, and for
storage, office and administrative functions in connection with Concessionaire's
operations hereunder. Concessionaire shall use the Storage Premises for storage
of its inventory of food and beverages, and of equipment and supplies, which are
used by Concessionaire in providing its service hereunder. Concessionaire shall
not use the Premises for any purpose other than the purposes specifically
provided for herein. Without limiting the generality of the foregoing,
Concessionaire shall not use the Premises to offer or to sell any of the
following products or services: retail merchandise (except as expressly allowed
under this ARTICLE IV), in-flight catering, telecommunication products and
services, display advertising, car rentals and other modes of ground
transportation or services connected therewith, hotel lodging or services
connected therewith, shoeshine, flowers, amusements and games, banks, automatic
teller machines or travel agencies.
2. Vending Machines. In addition to its right to sell food and beverage
items within the Premises, as set forth in Paragraph 1 hereof, Concessionaire
shall also have the right to operate vending machines at the approximate
locations on the deplaning level of the Terminal Building shown in pink on
Exhibit B hereof, for the sale of the following items only: soft
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drinks, juices, coffee, and other items approved in writing by Authority.
3. Rights Not Exclusive. The rights granted herein to Concessionaire
shall not be exclusive; provided that except as stated in Subparagraphs (A), (B)
and (C) hereof, the Authority shall notify the Concessionaire before granting a
concession to any other party to sell food or beverages in the Terminal Building
of a type which Concessionaire is permitted to sell hereunder if such concession
would continue for a period of thirty days or more during the Term hereof, and
if the sales of such food and beverages by such party within the Terminal
Building are reasonably expected by the Authority to exceed $25,000.00 per year.
If, within thirty days after such notice, Concessionaire notifies the Authority
that it objects to such other concession, and if the Authority then proceeds
with the granting of such concession notwithstanding the objection of the
Concessionaire, Concessionaire shall then have the option to terminate the Term
of this Concession Agreement by giving written notice of termination to the
Authority within thirty days after the date on which such other party begins
operations within the Terminal Building pursuant to such concession. Such
termination, if elected by Concessionaire, shall be effective ninety days after
the date of such notice of termination, and the Authority shall, within thirty
days of such effective date, pay to Concessionaire the undepreciated balance of
the costs incurred by Concessionaire in making Concessionaire's Improvements and
any
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interim refurbishment under ARTICLE V hereof, as finally settled under
Paragraphs 4 and 7 of said ARTICLE V, such balance to be calculated as to each
item included in such costs based on straightline depreciation over whichever of
the following is shorter: (i) the Term of this Concession Agreement, or (ii) the
useful life of such item. For purposes of this Paragraph and Paragraphs 4 and 7
of said ARTICLE V, the useful life of an item included in Concessionaire's
Improvements and in such interim refurbishment shall be deemed to be the useful
life which is assumed by Concessionaire in calculating its rate of depreciation
for such item on its books of account. Notwithstanding the foregoing, the
granting of any one or more of the following rights by the Authority to sell or
serve food and beverages within the Terminal Building shall not require
notification to the Concessionaire under this Paragraph 3 or create an option on
the part of the Concessionaire to terminate the Term of this Concession
Agreement:
(A) The Authority may grant to third parties the right to sell
food and beverages in areas of the Terminal Building which are not open
to the general public, to provide in- flight catering or to cater
meetings and events;
(B) The Authority may grant to third parties the right to sell
types of food and beverages defined by the Authority which are not then
being sold by Concessionaire if the Authority first notifies the
Concessionaire of the Authority's desire for such items to be sold
within the
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Terminal Building and Concessionaire fails to begin offering said items
(or a commonly accepted substitute) for sale on the Premises within
thirty days thereafter and to continue to offer said items for sale for
the balance of the Term hereof; and
(C) The Authority may grant the right to sell the following
items to a third party then having a concession to sell retail
merchandise in the Terminal Building: bottled water, bottled or canned
drinks, candy, snacks and packaged food items not to be consumed on the
premises of such retail merchandise concessionaire.
ARTICLE V
CONSTRUCTION AND UPFITTING
OF THE PREMISES
1. Plans and Specifications. Within thirty days after the execution
hereof, Concessionaire shall submit to the Authority for its approval proposed
plans and specifications for the construction of the leasehold improvements to
be made to the Premises, and for the equipment, fixtures and furnishings to be
installed in or placed upon the Premises by Concessionaire (such leasehold
improvements, and said equipment, fixtures and furnishings to be referred to
hereinafter as "Concessionaire's Improvements"). Said plans and specifications
shall conform to the description of the same which appears in the Proposal as
modified by the layout plan of the parties dated ________, 1997, said plans and
specifications shall call for first-class
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materials and construction, and said plans and specifications shall be
coordinated with the design and appearance of the new retail merchandise
facilities to be constructed in the Terminal Building. The Authority shall have
the right to require such changes, if any, in such plans and specifications, as
the Authority shall deem necessary or desirable in its reasonable judgment,
including, without limitation, changes (i) to correct errors or supply missing
information, (ii) to comply with applicable building codes, health and safety
regulations or other legal requirements or (iii) to make the proposed facilities
conform more closely with the Concessionaire's Proposal as modified in the
manner described hereinabove, or more suitable for the services which
Concessionaire is obligated to provide hereunder, or more compatible with the
remainder of the Terminal Building. The Authority shall, within thirty days
after its receipt of the proposed plans and specifications from the
Concessionaire, notify the Concessionaire of the changes thereto, if any, which
will be required by the Authority hereunder and Concessionaire shall make such
changes within thirty days thereafter and submit the revised plans and
specifications to the Authority.
2. Completion of Facilities in the Landside Premises and the North
Concourse Premises. Concessionaire shall let such contracts and take such other
action as shall be necessary to commence the construction and implementation of
Concessionaire's Improvements in the Landside Premises and in the North
Concourse
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Premises on or before January 31, 1998. Concessionaire shall cause all of
Concessionaire's Improvements in said Premises to be completed substantially in
accordance with the approved plans and specifications, and shall cause such
Premises to be ready for service to the public, as expeditiously as possible
thereafter, but no later than __________1, 1998.
3. Completion of Facilities in the South Concourse Premises.
(A) Proposed Addition to the South Concourse Premises. The
Authority is contemplating the construction of a proposed addition to
the South Concourse, adjacent to the South Concourse Premises, as shown
on Exhibit A hereof. If such addition is constructed, a portion
thereof, containing _____ square feet, more or less, as colored in
green on Exhibit A hereof, will be added to the South Concourse
Premises. Following the execution of this Concession Agreement, the
Authority shall advertise for bids for the construction of the proposed
addition to the South Concourse Premises pursuant to Article 8 of
Chapter 143 of the General Statutes of North Carolina. Within thirty
days after the opening of such bids, the Authority shall elect either
(i) to award a contract or contracts to the lowest responsible
bidder(s) and proceed with the project or (ii) to reject all bids and
cancel the project. If the Authority elects to award a contract or
contracts for the project, the Authority shall proceed diligently
thereafter
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to cause such addition to be constructed, with the completed project to
have a concrete floor and unfinished interior walls and ceiling, and
the Authority shall notify Concessionaire to proceed with
Concessionaire's Improvements to the South Concourse Premises when the
construction of the addition is substantially completed by the
Authority. If the Authority elects to reject all bids and cancel the
project, the terms and conditions of this Concession Agreement shall
remain in full force and effect notwithstanding such cancellation,
including, without limitation, the Minimum Annual Guarantees of the
Concessionaire set forth in ARTICLE VI hereof. In the event of such
cancellation, Concessionaire shall, within thirty days after being
notified thereof, submit to the Authority revised plans and
specifications for Concessionaire's Improvements to the South Concourse
Premises covering only the existing structure, such revised plans and
specifications to be subject to review and modification by the
Authority in the same manner and according to the same procedure as is
specified in Paragraph 1 of this ARTICLE V with respect to the original
plans and specifications; and, upon the completion of the revised plans
and specifications, the Authority shall notify Concessionaire to
proceed with Concessionaire's Improvements to the South Concourse
Premises in accordance therewith. Irrespective of whether the Authority
elects to proceed with the construction of the
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addition, the Authority shall install any overhead ductwork which may
be needed in the South Concourse Premises to provide HVAC service
thereto, and shall extend electrical, water and sewer lines to the
exterior walls of the Premises with sufficient capacity to supply the
utilities needed by the Concessionaire.
(B) Concessionaire's Improvements to the South Concourse
Premises. Within thirty days after the Authority gives notice to the
Concessionaire to proceed with Concessionaire's Improvements to the
South Concourse Premises (whether upon completion of the addition, or
upon completion of revised plans and specifications in the absence of
an addition), Concessionaire shall let such contracts and take such
other action as shall be necessary to commence the construction and
implementation of Concessionaire's Improvements within the South
Concourse Premises. Concessionaire shall cause all of Concessionaire's
Improvements in the South Concourse Premises to be completed
substantially in accordance with the approved plans and specifications,
and shall cause such Premises to be ready for service to the public, as
expeditiously as possible thereafter, but no later than ninety days
after the notice to proceed from the Authority.
4. Required Investment by Concessionaire. All of Improvements shall be
made by Concessionaire at its own cost and expense. Concessionaire agrees to
spend not
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less than $1,360,000.00 for Concessionaire's Improvements. The following costs
which are incurred by Concessionaire in connection with Concessionaire's
Improvements shall be credited against such amount: (i) architect's and
engineering fees for the preparation of the plans and specifications and for
construction management, (ii) payments made to contractors and suppliers for the
construction of leasehold improvements (including any addition thereto to cover
the premiums for the performance and payment bonds required hereunder), and
(iii) the purchase price for all equipment, fixtures and furnishings purchased
and installed by Concessionaire in the Premises pursuant to the plans and
specifications (other than office equipment which is to be used by
Concessionaire solely for performing office and administrative functions). The
following costs shall not be credited against such amount: (i) the purchase
price for office equipment referred to in item (iii) above, (ii) internal costs
of the Concessionaire such as overhead, administrative and travel expenses, or
compensation for its own employees, (iii) the price or value of any property
previously used by Concessionaire, or (iv) the premium for Concessionaire's
performance and payment bond(s) under Paragraph 5 of this ARTICLE IV. Within
ninety days after the Date of Beneficial Occupancy, Concessionaire shall submit
to the Authority a statement, certified by an officer of Concessionaire, of the
cost of each item to be credited against its obligation hereunder and the useful
life thereof, together with such invoices and other documentation as shall be
required
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to substantiate the information reported on such statement. Such statement and
supporting documentation shall be subject to review and audit by the Authority.
If the costs to be credited against the Concessionaire's obligation are less
than $1,360,000.00, Concessionaire shall pay the deficiency to the Authority
with the submission of such statement.
5. Concessionaire's Performance and Payment Bonds. Upon the execution
of this Agreement, Concessionaire shall submit to the Authority a surety bond or
bonds issued by an insurance company acceptable to the Authority, and in a form
satisfactory to the Authority, in the amount of $1,360,000.00 each conditioned
upon (i) the full performance by the Concessionaire of Concessionaire's
obligations under the preceding Paragraphs of this ARTICLE V, and (ii) the
payment by Concessionaire of all sums owed by the Concessionaire to its
contractors and suppliers in connection with Concessionaire's performance of
such obligations.
6. Transitional Premises. Beginning December 6, 1997, and ending on the
respective dates set forth below, Concessionaire shall have the temporary use
and occupancy of the following transitional premises within the Terminal
Building:
(A) Beginning on December 6, 1997 and ending on the date on
which Concessionaire's Improvements to the Landside Premises are
substantially completed and such Premises are ready for occupancy by
Concessionaire, but no later than July 1, 1998, Concessionaire shall
have the use and
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occupancy of an area on the enplaning level of the Terminal Building,
in the landside portion thereof, containing ______ square feet of
space, more or less, in the general location which is colored in orange
on Exhibit A hereof, the exact boundaries and dimensions of which to be
determined by the Authority in its reasonable judgment;
(B) Beginning on December 6, 1997 and ending on the date on
which Concessionaire's Improvements in the North Concourse Premises are
substantially completed and such Premises are ready for occupancy by
Concessionaire, but no later than July 1, 1998, Concessionaire shall
have the use and occupancy of the area on the enplaning level of the
Terminal Building, in the North Concourse thereof, containing
__________ square feet of space, more or less, which is colored in red
on Exhibit A hereof; and
(C) Beginning on December 6, 1997 and ending on the Date of
Beneficial Occupancy, Concessionaire shall have the use and occupancy
of the area on the enplaning level of the Terminal Building, in the
South Concourse thereof, containing square feet of space, more or less,
which is colored in red on Exhibit A hereof. During the respective
periods that Concessionaire has the use and occupancy of said
transitional premises, the same shall be regarded as part of the
Premises hereunder, and Concessionaire's tenancy of the transitional
premises shall be subject to all of the terms and conditions hereof
applicable to
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the Premises defined in ARTICLE I hereof. During the period from
December 6, 1997 through the Date of Beneficial occupancy,
Concessionaire shall use its best efforts, through use of the
transitional premises, to provide the service to the public which is
contemplated by this Concession Agreement and to meet adequately the
needs of the public for food and beverage service within the Terminal
Building.
7. Interim Capital Refurbishment. On or before June 1, 2002,
Concessionaire shall submit proposed plans and specifications to the Authority
for the interim refurbishment of the Premises. The Authority shall have the
right to require changes in such proposed plans and specifications upon the same
grounds specified in Paragraph 1 hereof with respect to the plans and
specifications for Concessionaire's Improvements, and shall notify
Concessionaire within thirty days after the Authority's receipt of the proposed
plans and specifications of the changes, if any, which are required by, the
Authority. Concessionaire shall, at its own expense, complete the interim
refurbishment of the Premises, substantially in accordance with the approved
plans and specifications, as expeditiously as possible thereafter, but no later
than May 31, 2003. Concessionaire agrees to spend not less than $250,000.00 for
the interim refurbishment of the Premises pursuant to this Paragraph 7,
including within such costs only those categories of costs which would be
credited against Concessionaire's obligation under Paragraph 4 hereof, and
Concessionaire shall submit to the Authority, upon the completion
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of such interim refurbishment, a statement, certified by an officer of
Concessionaire, of the cost of each item to be credited against Concessionaire's
obligation for the interim refurbishment and the useful life thereof, together
with such invoices and other documentation as shall be required to substantiate
the information reported on such statement. Such statement and supporting
documents shall be subject to review and audit by the Authority. If the costs to
be credited against Concessionaire's obligation under. this Paragraph 7 are less
than $250,000.00, Concessionaire shall pay the deficiency to the Authority with
the submission of such statement.
8. Additional Requirements. In the performance of its work under this
ARTICLE V, both as to Concessionaire's Improvements and as to the interim
refurbishment of the Premises, Concessionaire shall comply with the following
additional requirements:
(A) Concessionaire shall require each contractor employed
directly by Concessionaire to provide a performance bond and payment
bond, in a form satisfactory to the Authority and with sureties
acceptable to the Authority, insuring the performance by such
contractor of its contract with Concessionaire and the payment by such
contractor of its employees, subcontractors and suppliers; and
(B) Concessionaire shall use its best efforts to minimize
interference with the use of the Terminal Building by the Authority,
its other tenants, and the general public.
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9. Authority Not Responsible for Acts of Concessionaire. The Authority
shall not incur any liability for any act or omission of Concessionaire, or any
party employed by Concessionaire, in connection with the preparation of the
plans and specifications for, or the construction or installation of,
Concessionaire's Improvements or the interim refurbishment of the Premises, nor
shall the Authority be considered in any respect to have warranted the adequacy
of such plans and specifications or the quality of such construction.
10. Concessionaire Takes the Premises "As Is." Except for the proposed
addition to the South Concourse Premises (if such addition is constructed by the
Authority), Concessionaire takes the Premises without any improvement, repair or
modification by the Authority and subject to the following: (i) ordinary wear
and tear occurring between the date hereof and the date Concessionaire takes
possession of the Premises, (ii) the removal by the current tenant of the
Authority of any property belonging to such tenant, and (iii any damages to the
Premises which are reasonable and expected as a result of such removal. As part
of Concessionaire's Improvements hereunder, Concessionaire shall, at its own
cost and expense, dismantle any existing improvements or property on the
Premises which is not to be used by Concessionaire and remove any junked
materials or equipment from the Airport.
11. Title to Vest in Authority. Title to all property installed or
placed in the Terminal Building in connection with
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Concessionaire's Improvements, or the interim refurbishment of the Premises
under Paragraph 7 hereof, whether real property or personal property, and any
replacements thereof or additions thereto, shall immediately vest in the
Authority subject to the right of Concessionaire to use the same during the Term
hereof as a tenant of the Authority pursuant to the terms and conditions of this
Concession Agreement; provided that the Authority shall not acquire title
hereunder to any office equipment of the Concessionaire which is used solely in
performing office or administrative functions, nor to any personal property
installed or placed upon the Premises by Concessionaire which cannot be used by
the Authority without infringing on a valid trademark or copyright of
Concessionaire or of a third party.
ARTICLE VI
RENTALS AND FEES
For the rights, privileges and use of the Premises granted in this
Concession Agreement, Concessionaire shall pay to the Authority the rentals and
fees set forth herein, and shall comply with the record-keeping and other
obligations of the Concessionaire set forth hereinafter, as follows:
1. Rent During Transitional Term. Within twenty days after the end of
each calendar month during the Transitional Term, beginning with the month of
December, 1997, Concessionaire shall provide the Authority with a written
accounting of its Gross Revenues for such month in the same manner as is
required in Paragraph 4 of this ARTICLE VI for each month of the Regular
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Term, and Concessionaire shall pay to the Authority Percentage Rents thereon at
the same rates as are in effect for each Lease Year under Subparagraph 2(B) of
this ARTICLE VI. Concessionaire shall also, within ninety days after the end of
the Transitional Term, submit to the Authority a statement of its total Gross
Revenues for the Transitional Term in the same manner as is required for each
Lease Year under Paragraph 5 of this ARTICLE VI, with any excess amount paid or
owed by Concessionaire to be discharged as provided in said Paragraph 5. For all
such purposes, the Minimum Annual Guarantee for the Transitional Term shall be
deemed to be zero.
2. Rent During Regular Term. For each Lease Year during the Regular
Term, Concessionaire shall pay the Authority the greater of (i) the Minimum
Annual Guarantee for such Lease Year under Subparagraph (A) below (to be
referred to herein as the "Minimum Annual Guarantee"), or (ii) the share of the
Concessionaire's Gross Revenues for such Lease Year calculated under
Subparagraph (B) below (such share of such Gross Revenues to be referred to
herein as "Percentage Rents"):
(A) The Minimum Annual Guarantee of the Concessionaire for
each respective Lease Year shall be as follows:
(i) For the first Lease Year, beginning June 1, 1998,
the Minimum Annual Guarantee shall be $13,291.67 multiplied by
the number of months in such Lease Year before the Date of
Beneficial Occupancy, plus $24,166.67 multiplied by the number
of months in
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such Lease Year beginning on or after the Date of Beneficial
Occupancy.
(ii) For the second Lease Year, the Minimum Annual
Guarantee shall be $300,000.00; and
(iii) For the third and each succeeding Lease Year,
the Minimum Annual Guarantee shall be
$310,000.00.
(B) The Percentage Rents of Concessionaire for each Lease Year
shall be the sum of the following:
(i) 11% of the Gross Revenues of Concessionaire
for such Lease Year derived from Vending Machine sales;
(ii) 19.5% of the Gross Revenues of Concessionaire
for such Lease Year derived from the sale of alcoholic
beverages; and
(iii) 14.5% of all other Gross Revenues of
Concessionaire for such Lease Year.
3. Monthly Payments of Rent. On or before the first day of each and
every month during the Regular Term hereof, Concessionaire shall pay to the
Authority a monthly installment of its Minimum Annual Guarantee for the then
current Lease Year, in advance and without demand, in the following amounts:
(A) For the month of June, 1998, and for each calendar month
thereafter prior to the Date of Beneficial Occupancy, the sum of
$13,291.67.
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(B) For the month beginning on the Date of Beneficial
Occupancy, and or each calendar month thereafter during the first Lease
Year, the sum of $ 24,166.67; and
(C) For each calendar month after the first Lease Year,
one-twelfth (1/12th) of the Minimum Annual Guarantee for the then
current Lease Year.
4. Monthly Payments of Percentage Rents. Within twenty days after the
end of each calendar month during the Term hereof, Concessionaire shall provide
the Authority with an accounting of its Gross Revenues for such calendar month.
Such accounting shall be submitted on a form approved by the Authority and shall
include sufficient detail to show separately the revenues of Concessionaire for
each category of revenue identified in Subparagraph 2(B) hereinabove and to show
separately the revenues of Concessionaire from each of its facilities within the
Terminal Building. Upon the submission of such accounting, Concessionaire shall
pay the Authority the amount, if any, by which (i) Concessionaire's Percentage
Rents for such calendar month as calculated under said Subparagraph 2(B) hereof
exceed (ii) the monthly installment of the Minimum Annual Guarantee to be paid
by Concessionaire under Paragraph 3 hereof.
5. Annual Reconciliation. Within ninety days after the end of each
Lease Year, Concessionaire shall prepare and submit to the Authority a written
accounting of its total Gross Revenues for such Lease Year. Such accounting
shall be prepared in accordance with generally accepted accounting principles,
shall
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be in such detail and on such forms as-may be acceptable to the Authority, and
shall be certified to be correct by Concessionaire's chief financial officer or
by an independent Certified Public Accountant. If the total rents previously
paid by Concessionaire for such Lease Year exceed the greater of (i) the Minimum
Annual Guarantee for such Lease Year, or (ii) the amount of Percentage Rents
calculated under Subparagraph 2(B) hereof for such Lease Year, such excess shall
be credited by the Authority to any obligation of the Concessionaire which is
then due or coming due, or if the Term hereof has expired and all of
Concessionaire's obligations to the Authority have been satisfied in full, the
Authority shall pay such excess to Concessionaire. If the total rents previously
paid by Concessionaire for such Lease Year are less than the greater of (i) the
Minimum Annual Guarantee for such Lease Year, or (ii) the amount of Percentage
Rents calculated under Subparagraph 2(B) hereof for such Lease Year,
Concessionaire will remit the deficiency to the Authority with such accounting.
6. Definition of "Gross Revenues". As used in this Concession
Agreement, the term "Gross Revenues" shall mean all amounts, of every kind or
nature, charged or received by Concessionaire for business conducted by
Concessionaire at the Airport, or in connection with the operation of
Concessionaire's rights or privileges hereunder, without deduction or exclusion
except as specifically provided for in this Paragraph 6, without regard to
whether the applicable transactions are for cash,
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credit, exchange or otherwise, and without regard to whether amounts charged by
Concessionaire are actually collected. Non- cash consideration received by
Concessionaire shall be included in Gross Revenues at its cash value. Without in
any manner limiting the generality of the foregoing, the term "Gross Revenues"
shall include the gross amounts charged by Concessionaire for all food and
beverages and for any other items sold by Concessionaire at the Airport, and for
all services provided by Concessionaire at the Airport, together with the amount
of all orders taken or received by Concessionaire at the Airport and filled
elsewhere. If any part of Concessionaire's business shall be sublet by
Concessionaire or conducted by any party other than Concessionaire, there shall
be included in Concessionaire's Gross Revenues hereunder all of the Gross
Revenues of such party in the same manner and with the same effect as if such
business had been conducted by Concessionaire itself. Each charge or sale upon
installment or credit shall be treated as a receipt for the full price in the
month in which such charge or sale is made, irrespective of the time when, or
whether, Concessionaire shall receive payment therefor. The term "Gross
Revenues" shall not include:
(A) the amount of receipts from the sale of or the trade-in
value of any furniture or fixtures used on any of the Premises and
owned by Concessionaire or any sublessee of Concessionaire;
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(B) the amount of any federal, state or local excise or sales
taxes levied upon the sales of the Concessionaire or any sublessee of
Concessionaire and collected from the purchaser as a separate item;
(C) the value of any goods, wares, merchandise, or services
given by Concessionaire, or any sublessee of Concessionaire, without
charge, but not in exchange, to any other person or party;
(D) receipts with respect to any sale made at the Airport by
the Concessionaire or any sublessee of Concessionaire in which the
goods sold are thereafter returned by the purchaser and such return is
accepted, to the extent of any refund actually granted or adjustment
actually made by Concessionaire or any sublessee of Concessionaire
either in the form of cash or credit; or
(E) the amount of any tip or other gratuity given by patrons
or customers to employees of Concessionaire or any sublessee of
Concessionaire.
Nothing in this Paragraph 6 shall be construed to permit any
assignment or subletting by Concessionaire except in accordance with ARTICLE XI
hereof.
7. Record Keeping. At each of Concessionaire's facilities within the
Premises, Concessionaire shall install and use thereon all cash registers,
invoicing machines, and other automatic accounting equipment, and all sales
slips, receipts and other documentation, as are necessary or required to record
properly
- 26 -
and accurately the Gross Revenues of Concessionaire. Concessionaire shall keep
and maintain for a period of three years after the end of each Lease Year (or,
in the case of the Transitional Term, for a period of three years following the
end of the Transitional Term), in accordance with generally accepted accounting
principles, all records of its Gross Revenues for such Lease Year (or
Transitional Term), whether in written or computer form, including, without
limitation, its general ledger, sales and cash receipts, journals, daily
business reports, cash register and computer terminal tapes, bank deposit slips,
credit/debit card fee statements, tax reports filed with state and federal
agencies and contractual agreements with other Airport tenants. During the Term
hereof, Concessionaire shall keep such records on the Premises, and all such
records, and the data recording equipment of the Concessionaire shall be subject
to inspection at all reasonable hours by the Authority.
8. Auditing. In addition to its right of inspection under Paragraph 7
hereof, the Authority or its representative shall have the right, upon
seventy-two hours prior notice, at any time and from time to time during the
Term hereof or within three years thereafter, to audit the records of
Concessionaire relating to its Gross Revenues, and Concessionaire, upon request,
shall make all such records available for examination at the offices of the
Authority. If delay or additional costs are incurred in connection with such
audit which are caused by Concessionaire, Concessionaire shall be responsible
for such additional costs.
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At the request of the Concessionaire, the Authority or its representative may
conduct the audit at a location other than the offices of the Authority,
provided Concessionaire shall reimburse to the Authority all additional expenses
which are incurred by the Authority for conducting such audit away from its
offices, including, but not limited to, travel expenses, travel time, and other
related expenses. If, as a result of an audit, it is established that
Concessionaire or any subconcessionaire has understated Gross Revenues for the
period covered by the audit by five percent (596) or more, the entire expense of
said audit shall be borne by Concessionaire. Any additional Percentage Rents due
as a result of such audit shall forthwith be paid by Concessionaire to the
Authority with interest thereon, from the end of the month in which the
discrepancy occurred until payment is made, at a rate of eighteen percent (18%)
per annum or the then maximum lawful rate of interest per annum, whichever is
less.
9. Medium of Payment. All payments hereunder shall be made in lawful
money of the United States.
10. Delinquencies. In the event Concessionaire is delinquent for a
period of thirty days or more in paying to the Authority any sums payable
pursuant to this Concession Agreement, the Authority shall be entitled to
collect from Concessionaire interest thereon, from the date such sum was due and
payable until paid, at the rate of eighteen percent (18%) per annum or at the
then maximum lawful rate of interest per annum, whichever is
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less, plus the reasonable attorney's fees incurred by the Authority in the
collection of such delinquency. Receipt of such interest or attorney's fees by
the Authority shall not bar the exercise of any other remedy available to the
Authority on account of such delinquency.
11. Security. As security for the payment or performance by
Concessionaire of its obligations hereunder, Concessionaire will provide to the
Authority, upon the execution hereof, a nondocumentary, irrevocable notation
Letter of Credit issued by a bank acceptable to the Authority, in a form which
is acceptable to the Authority, in the amount of $155,000.00. Said Letter of
Credit shall remain in force throughout the Term hereof and thereafter until all
the obligations of Concessionaire to the Authority have been paid in full. In
addition to any other remedies the Authority may have, the Authority may, at its
option, draw on said Letter of Credit for the payment of any amount which
Concessionaire is obligated to pay to the Authority under this Concession
Agreement, or to satisfy any other obligation of the Concessionaire hereunder,
which has not been paid or performed by Concessionaire when due. In the event
the Authority shall draw on said Letter of Credit, Concessionaire shall
immediately restore such Letter of Credit to the full amount required hereunder.
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ARTICLE VII
OBLIGATIONS OF CONCESSIONAIRE
In addition to its covenants and agreements set forth elsewhere in this
Concession Agreement, Concessionaire shall perform the following obligations
during the Term hereof:
1. Furnishing and Equipping the Premises. Concessionaire shall be
solely responsible for designing, furnishing, installing, and maintaining, at
its own cost and expense, all furnishings, fixtures, and equipment necessary to
equip the Premises and operate the same for the purposes hereinbefore set forth,
and in the manner and at the standards contemplated hereunder. Such furnishings
and fixtures shall be of high quality, safe, fire-resistant, modern in design
and attractive in appearance. Any and all furnishings, fixtures, and equipment,
and any replacements installed or placed by Concessionaire on the Premises shall
be subject to the prior approval of the Executive Director.
2. Standards of Operation.
(A) Concessionaire shall operate in a first-class manner all
of the businesses operated by Concessionaire pursuant to this
Concession Agreement, and shall keep the Premises and all other areas
in which Concessionaire operates hereunder in a safe, neat, clean,
orderly, and inviting condition at all times, reasonably satisfactory
to the Executive Director.
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(B) Concessionaire shall offer a wide variety of food and
beverages (both alcoholic and non-alcoholic) sufficient to meet the
demand of the traveling public and other persons using the Airport.
Concessionaire will, at the request of the Executive Director, add
items to its menus if the Executive Director reasonably determines that
such items are useful or desirable to the traveling public or others
using the Airport. Concessionaire will, at the beginning of the Regular
Term hereof, serve the following brand-name products:
____________________________. Concessionaire shall not voluntarily
delete any food and beverages which it is serving under a brand name of
one of its suppliers, or add any food or beverages under brand name not
previously approved by the Executive Director, without the written
consent of the Executive Director, which shall not be withheld
unreasonably.
(C) Concessionaire shall at all times maintain a standard of
quality and quantity with respect to the food and beverages sold by
Concessionaire at the Airport at least as high as the standard for like
food and beverages sold or offered for sale at restaurants serving
comparable food and beverages within a twenty-mile radius of the
Airport. The quality and quantity of all food and beverages sold by
Concessionaire shall be subject to the approval of the Executive
Reasonable Director. Concessionaire shall maintain a sanitation rating
of "Grade All for each of its
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food-serving facilities based on the sanitation ratings which are now
given, from time to time, to restaurants under the laws of the State of
North Carolina.
(D) Concessionaire's service shall be prompt and efficient,
and Concessionaire shall at all times have a sufficient number of
employees on hand, and adequate facilities, to provide such service.
Concessionaire's employees shall he clean and courteous and neat in
appearance. Concessionaire shall not permit any of its employees at the
Airport to use foul or profane language, or act in a loud or boisterous
or otherwise improper manner.
(E) Concessionaire will accept at least the following credit
cards in payment for its sales and service hereunder:
VISA, MasterCard, and American Express.
(F) All food and beverages kept for sale by Concessionaire
hereunder shall be subject to inspection by the Executive Director.
3. Hours of Operation. Concessionaire's facilities shall be open for
service to the public in each of the respective Premises hereunder seven days a
week during the hours of operation specified for such Premises on the schedule
attached hereto as Exhibit D. The Executive Director may make such changes in
such schedule, from time to time, which he reasonably believes to be necessary
to adjust to changing demand or changing flight schedules within the Airport.
Concessionaire may likewise make changes in such schedule for such-purposes with
the consent
- 32 -
of the Executive Director, which shall not be withheld unreasonably.
4. Prices. The prices charged by Concessionaire for food and beverages
sold hereunder shall not exceed the average prices charged for like food and
beverages by establishments within a twenty-mile radius of the Airport. Such
average prices shall be determined by the Executive Director in his reasonable
judgment based on prices for comparable food and beverages from at least three
establishments within such radius. Comparisons shall be made on the basis of the
total price for a representative selection of items, as chosen by the Authority,
rather than on an item-by-item basis. If the Authority determines that the
prices charged by Concessionaire exceed such average prices, Concessionaire
shall make such reasonable adjustments to its prices as the Executive Director
shall demand for purposes of compliance with this Paragraph. Prices for all food
and beverages sold hereunder shall be conspicuously displayed by the
Concessionaire.
5. Solicitation. Solicitation of business at the Airport by
Concessionaire shall be confined to signs, placards, and advertising displays,
all of which shall be subject to the approval of the Executive Director prior to
installation or placement and at all times thereafter. This requirement shall
not apply to small signs, placards, and other similar items which would normally
be placed within the Premises or affixed to
- 33 -
tables, counters, bars, and the like, if they refer to items offered for sale by
Concessionaire.
6. Manager. Subject to the approval of the Executive Director,
Concessionaire shall select and appoint a Manager for Concessionaire's
operations at the Airport. Such person must be an outstanding, highly qualified
and experienced manager or supervisor of comparable operations, and shall be
vested by Concessionaire with full power and authority to accept service of all
notices provided for herein and to oversee operation of the concession business
herein authorized, including the quality and prices of the food and beverages
sold by Concessionaire hereunder, and the appearance, conduct and demeanor of
Concessionaire's 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 absence, a
responsible subordinate shall be in charge and available. The Manager appointed
by Concessionaire shall devote his or her full time and attention to the
performance of his or her duties hereunder and shall not be assigned any other
duties or responsibilities by Concessionaire.
7. Expenses. Except as provided in ARTICLE IX hereof, Concessionaire
will be responsible for the payment of all expenses in connection with the use
of the Premises and the rights and privileges granted herein, including without
limitation by reason of enumeration, the cost of installing and
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maintaining all utilities lines necessary for distribution of utilities within
the Premises, the cost of all gas, electricity, and other utilities consumed in
its operations hereunder and all taxes, permit fees, license fees, and
assessments lawfully levied or assessed upon its property at any time situated
upon the Airport, and it will secure all permits and licenses required for
construction of improvements or the operation of its business. If the cost of
the gas service for Concessionaire's operations is charged to the Authority by
the utility company, Concessionaire shall reimburse such costs to the Authority
within five days after receiving an invoice therefor.
8. Maintenance and Repair of Premises. Concessionaire shall be
responsible for maintaining the Premises, throughout the Term hereof, and
delivering the same to the Authority at the termination of this Concession
Agreement, in good condition and repair, reasonable wear and tear excepted, and
damage which the Authority is obligated to repair under ARTICLE XIII hereof also
excepted. Without limiting the generality of this obligation, Concessionaire
will, at its own expense, be responsible as follows:
(A) Concessionaire shall repair and maintain all equipment,
furniture, furnishings and installations which are used within the
Premises. Concessionaire shall be responsible, at its own expense, for
the maintenance and repair of all lighting fixtures within the
Premises,
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including the replacement of incandescent and fluorescent lamps,
starters, ballasts and other similar appurtenances.
(B) Cleaning and maintenance of the Premises shall be
conducted at a level consistent with that conducted and performed by
the Authority in comparable space and in accordance with all applicable
health and sanitation laws and regulations.
(C) Equipment storage and maintenance areas shall at all times
be kept and maintained in a clean, orderly and sanitary condition, free
of debris and oil spills. Flammable materials must be stored in
containers and in locations which are approved by the Authority. Spare
equipment not used in regular daily operations shall be stored in areas
designated by the Authority and separately leased for such storage
purposes.
(D) Concessionaire shall provide complete and proper
arrangements for handling and disposal off the Airport of all garbage,
trash, unused equipment, and other refuse resulting from
Concessionaire's operations on the Airport; and Concessionaire shall
provide and use suitable receptacles, in sufficient number, on the
Premises and other areas used by Concessionaire, for the disposal of
the same. Upon payment by Concessionaire of such charges as the
Authority may assess therefor, Concessionaire shall have the right to
use the trash compactor of the Authority located on the service level
of the Terminal Building for disposal of
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its refuse. Piling of boxes, cartons, barrels or other similar items in
an unsafe or unsightly manner is forbidden.
(E) Concessionaire shall be responsible for the repair and
maintenance of all plumbing which serves the Premises, including water
lines from the point of connection with the Authority's main water
line, and drains and waste lines to the point of connection with the
Authority's main sewer line, whether such lines and such connections
are within or outside the Premises. All drains shall be properly
installed and sealed to prevent leakage, and Concessionaire shall
install catch pans underneath all drains and waste lines where
necessary to prevent leakage. Concessionaire is responsible for all
material that is deposited in the plumbing system from the Premises and
for cleaning the grease traps within the Premises. Concessionaire shall
not deposit any drain cleaner or other chemical substances into the
plumbing system which have not been approved in advance by the
Executive Director. Concessionaire shall reimburse to the Authority
upon demand all costs of repairing any damage to the Authority's
plumbing or other property of the Authority resulting from a failure by
Lessee to maintain the plumbing system serving the Premises, or from
any failure by Concessionaire to keep such plumbing system or the
floors within the Premises in a watertight condition, or from any
liquid, grease or other debris which has been deposited in
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such plumbing system that results in stoppage or other damage.
(F) Concessionaire will at all times keep the Premises free of
insects, rodents, and other pests.
If Concessionaire fails to perform its obligations under this
Paragraph 8, the Authority may enter the Premises (without such entering being
regarded as a termination of this Concession Agreement or an interference with
the possession of the Premises by the Concessionaire) and do all things
necessary to restore said Premises to the condition required by this Concession
Agreement, charging the cost and expense to Concessionaire, and Concessionaire
shall pay to the Authority all such costs and expenses in addition to the
rentals, fees, and charges herein provided. Notwithstanding the foregoing
provisions of this Paragraph 8, the obligation of Concessionaire to maintain and
repair the Premises shall not extend to the repair of any structural damage
thereto not caused by the willful act or by the negligence of Concessionaire, or
of its agents, employees, licensees, invitees, or customers.
9. Alterations. Concessionaire shall make no alterations or changes in
the Premises without having first received the prior written approval of the
Executive Director. In the event the proposed alterations or changes are so
approved, they shall be made solely at Concessionaire's expense, and
Concessionaire shall not be reimbursed at any time by the Authority for the cost
of such work.
- 38 -
10. Avoidance of Liens. In the performance of the work to be done by
Concessionaire under ARTICLE V hereof, and in the performance of any alterations
made by Concessionaire under Paragraph 9 hereinabove, Concessionaire shall keep
the Premises and all other property of the Authority free and clear of any
mechanic's or materialmen's liens of Concessionaire's contractor or material
suppliers, and Concessionaire shall indemnify the Authority and hold it harmless
against any such liens or any claims of lien of Concessionaire's contractors or
material suppliers.
11. Cooperation with Concessionaire's Successor. Upon the expiration or
earlier termination of the Term hereof, Concessionaire shall cooperate
reasonably with the party or parties selected by the Authority to operate the
food and beverage concessions at the Airport so as to cause the least disruption
of service to the public resulting from the transition to the new
concessionaire(s).
ARTICLE VIII
RIGHTS OF THE AUTHORITY
The Authority retains for itself any and all rights and powers not
expressly granted to Concessionaire; however, without limiting the generality of
the foregoing, the Authority shall have the following specific rights:
1. Rights of Entry and Inspection and Other Rights. The Authority shall
have the right to enter the Premises for the purpose of inspecting such
Premises, to check on Concessionaire's
- 39 -
compliance with health and safety regulations and with the terms and conditions
of this Concession Agreement, and to do any and all things with reference to
said Premises which the Authority is obligated or authorized to do as set forth
herein. The Authority, through its employees, agents, representatives,
contractors, and furnishers of utilities and other services shall have the right
for its own benefit, for the benefit of Concessionaire, or for the benefit of
other tenants at the Airport, to maintain upon the Premises existing and future
utility, mechanical, electric and other systems and services and to enter upon
the Premises at all reasonable times to make such repairs, replacements or
alterations to such systems or services as the Authority may deem necessary or
advisable, and, from time to time, to construct or install over, in or under,
the Premises, new systems or parts thereof, and to use the Premises for access
to other parts of the Airport otherwise not conveniently accessible; provided,
however, that the exercise of such rights shall not unreasonably interfere with
the use and occupancy of the Premises by Concessionaire, and that every
reasonable effort shall be made to restore the Premises to the condition
existing prior to the exercise of such rights. Except in an emergency, any
maintenance work in, on, under or over the Premises shall be coordinated with
Concessionaire's local manager prior to being initiated. The exercise of any or
all of such rights by the Authority, or others acting in behalf of the
Authority, shall not be construed to be an eviction of the Concessionaire.
- 40 -
2. Right of Oversight by Executive Director. The Executive Director
shall have the right at all times to raise objections to the condition of the
Premises, to the quality of the food and beverages offered for sale by
Concessionaire, or to the character of the service rendered by the
Concessionaire, and the Executive Director may require the Concessionaire to
make such changes, to meet his objections, as are reasonable under the
circumstances and consistent with the standards and requirements provided
herein.
3. Right to Suspend or Terminate Concession Agreement Provisions. Any
rights, privileges, or interests acquired by the Concessionaire under the terms
of this Concession Agreement may, at the option of the Authority following
written notice of thirty days, be suspended or finally terminated without any
liability on the part of the Authority, if such suspension or termination is
found by the Authority, acting in good faith, to be necessary to secure federal
financial aid for the development and improvement of the Airport, and if the
Federal Aviation Administration demands such action by the Authority for such
purpose; provided that, if the right of the Concessionaire to operate hereunder
is not terminated in its entirety, an equitable adjustment shall be made in the
Minimum Annual Guarantee to be paid thereafter by Concessionaire under ARTICLE
VI hereof.
4. Right to Restrict Access Beyond Security Checkpoints. The Authority
retains the right to restrict access to areas on the airside of security
checkpoints to persons permitted by the
- 41 -
Authority, such as ticketed passengers and employees of the airlines operating
at the Airport. The Authority may also restrict public access within portions of
the Terminal Building if such restrictions are reasonably necessary while
improvements or alterations are being made to the Terminal Building. No such
restrictions authorized in this Paragraph 4 shall entitle Concessionaire to any
abatement of its Minimum Annual Guarantee or Percentage Rents.
5. Rights during National Emergency. The Authority expressly reserves
the right, during times of National Emergency declared by the President of the
United States, to lease the Airport or any part thereof to the United States
Government if said Airport facilities are required for United States Government
use. In the event such a lease is executed, the rights and privileges of this
Concession Agreement, insofar as they are inconsistent with the rights and
privileges of the lease with the United States Government, shall be temporarily
suspended and Concessionaire's Minimum Annual Guarantee shall be abated
appropriately.
6. Rights to Future Airport Development. The Authority reserves the
right to develop further or to improve or to redesign or to remodel the Airport
or the Terminal Building as the Authority sees fit regardless of the desires or
views of the Concessionaire and without interference or hindrance by
Concessionaire. If feasible, any work to be performed in the Terminal Building
in connection with any such future development
- 42 -
will be done in a manner which will cause Concessionaire as little inconvenience
as practicable.
ARTICLE IX
FACILITIES TO BE FURNISHED
BY THE AUTHORITY
The Authority shall furnish, at its own expense, heat and air
conditioning for the Premises, and water in such volume as Concessionaire shall
reasonably require, with hot water to be supplied in such volume as
Concessionaire shall reasonably require at a temperature of not less than 120
degrees Fahrenheit. The Authority shall not be required to furnish any other
services or utilities, including, but not limited to, gas, electrical power, or
telephone service, replacement of lamps, or janitorial services. The Authority
shall also, at its own expense, be responsible for all structural maintenance
and structural repairs to the Premises, except for maintenance and repairs
necessitated by the willful act or by the negligence of the Concessionaire, or
of its agents, employees, invitees, licensees or customers.
ARTICLE X
DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
1. DBE Status of Concessionaire. Concessionaire shall take such action
as shall be necessary to insure that, during each Lease Year during the Term
hereof, not less than 15?6 of the Gross Revenues under this Concession Agreement
shall be earned by a disadvantaged business enterprise (hereinafter called a
'IDBEII'), within the meaning of the U.S. Department of
- 43 -
Transportation's Regulations 49 CFR, Part 23, Subpart F. If Concessionaire is
not itself a DBE, Concessionaire shall provide for such level of participation
by entering into a joint venture, sublease, or other direct ownership
arrangement with one or more DBE'S, under which not less than 151 of Gross
Revenues hereunder will be regarded under such regulations as having been earned
by such DBE or DBE'S, provided that any assignment or subletting undertaken by
Concessionaire to meet this requirement must have the prior written consent of
the Authority as provided in ARTICLE XI hereof. Concessionaire shall provide
such information as the Authority may reasonably request, from time to time, to
monitor the compliance of Concessionaire with the requirements of this ARTICLE
X, as well as such information as the Authority's shall require from time to
time to meet the Authority's reporting obligations to the Federal Aviation
Administration with regard to the Authority's DBE program for concessions at the
Airport.
2. Additional Requirements and Assurances. This Concession 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, management contract or subcontract, purchase or lease
agreement, or other agreement covered by 49 CFR, Part 23, Subpart F.
Concessionaire agrees to include the statements set forth in the preceding
sentence in any
- 44 -
subsequent concession agreements that it enters and cause those businesses to
similarly include the statement in further agreements, but all such subsequent
agreements shall be subject to the provision of ARTICLE XI hereof.
3. Constitutional Restrictions. Notwithstanding the foregoing, the
provisions of this ARTICLE X shall not apply if and to the extent the
constitutional or other legal rights of Concessionaire or any other person would
be infringed thereby.
ARTICLE XI
ASSIGNMENT AND SUBLETTING
Concessionaire shall have no right to assign this Agreement, in whole
or in part, or to sublet any of the Premises, or to assign or to sublet any of
its rights, privileges or franchise under this Agreement, or to delegate any of
its duties under this Agreement, without the prior written consent of the
Authority, which consent shall not be unreasonably withheld, nor shall
Concessionaire permit any transfer by operation of law of Concessionaire's
interest created hereby, without the prior written consent of the Authority,
which consent shall not be unreasonably withheld. Any change in the identity of
the person owning the controlling interest in the Concessionaire's common stock
through one or more transactions during the Term hereof shall be deemed to
constitute an assignment requiring the Authority's prior written consent under
this ARTICLE XI. Consent by the Authority to any assignment, subletting
delegation or transfer of interest under this Agreement shall be limited to the
- 45 -
instance stated in such written consent and shall not constitute a release,
waiver, or consent to any other assignment, subletting delegation or transfer of
interest, and notwithstanding any such assignment, subletting delegation or
transfer of interest, Concessionaire shall continue to be liable for the
performance of Concessionaire's obligations under this Concession Agreement.
ARTICLE XII
TERMINATION AND CANCELLATION
1. Termination and Timely Surrender. Concessionaire agrees to yield and
deliver up to the Authority possession of the Premises and the improvements,
fixtures and personal property which have vested in the Authority hereunder
promptly at the termination of this Concession Agreement, by expiration or
otherwise, in good condition, reasonable wear and tear excepted, and in
accordance with Concessionaire's express obligations hereunder. Concessionaire
shall have the right at any time during the Term, and for ten days after the
termination thereof, to remove any furniture, trade fixtures, equipment or other
property installed or placed by it at its expense in the Premises which have not
vested in the Authority; subject, however, to any claim which the Authority may
have for unpaid rents or fees and subject to the repair, at Concessionaire's
expense, of any damage to the Premises or the Airport or the property of others
caused by such removal, including all expenses of restoring the same to its
previous condition. In the event any such furniture, trade fixtures, equipment,
or other personal property of the
- 46 -
Concessionaire is not removed by the Concessionaire during such ten-day period,
the Authority may remove the same, and Concessionaire agrees to pay all expenses
for removal, all costs for repair of damage to Airport property or the property
of others damaged by such removal, all storage charges, and all expenses
of-restoration. The Authority may, at its option, declare any property of the
Concessionaire which remains upon the Airport after the expiration of such
ten-day period to have been abandoned by the Concessionaire and to have become
the property of the Authority. The foregoing provisions shall not be construed
to imply that Concessionaire shall have any right whatsoever to place any
property on any part of the Airport outside the Premises, other than the right
to place vending machines at the places indicated on Exhibit B hereof.
2. Cancellation by Concessionaire. Concessionaire shall have the right
to cancel this Concession Agreement by written notice to the Authority of its
election to do so upon the happening of one or more of the following events:
(A) The permanent closure of the Airport as an Air Carrier
Airport by act of any Federal, state or local government agency having
competent jurisdiction;
(B) The issuance by any court of competent jurisdiction,
without fault on the part of Concessionaire, of an injunction, order,
or decree preventing or restraining the use by Concessionaire of all or
any substantial part of the Premises, or preventing or restraining the
use of the
- 47 -
Airport for normal airport purposes or the use of any part thereof
which may be used by Concessionaire and which is necessary for
Concessionaire's operation on the Airport, which remains in force for a
period of at least ninety days;
(C) The substantial breach by the Authority of any of the
terms, covenants, commitments or conditions of this Concession
Agreement to be kept, performed, and observed by the Authority and the
failure of the Authority to remedy such breach, within a period of
thirty days after written notice from Concessionaire of the existence
of such breach, or if such event or default cannot with reasonable
diligence be removed or cured within a period of thirty days, then upon
the failure of the Authority to commence to cure or remove the same
within said thirty-day period and to proceed with due diligence to
complete the remedying of said default; or
(D) If the United States Government or any of its agencies
shall occupy the Airport or any substantial part thereof to such an
extent as to interfere materially and adversely with Concessionaire's
operation for a period of sixty consecutive days or more.
3. Cancellation by the Authority. If any one or more of the following
events (sometimes herein called "events of default") shall happen:
(A) If Concessionaire shall make a general assignment for the
benefit of creditors;
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(B) If Concessionaire shall file a voluntary petition in
bankruptcy or, if a petition seeking its reorganization or the
readjustment of its indebtedness under the federal bankruptcy laws or
similar state laws shall be filed by or against Concessionaire;
(C) If an involuntary petition in bankruptcy shall be filed
against Concessionaire and Concessionaire is thereafter adjudicated a
bankrupt thereunder;
(D) If Concessionaire shall consent to the appointment of a
receiver, trustee, or liquidator of all or substantially all of the
property of Concessionaire;
(E) If Concessionaire shall voluntarily abandon and
discontinue use of the Premises for the purpose approved herein for a
period of thirty consecutive days;
(F) If Concessionaire shall fail to pay the rental charges or
other money payments required by this Concession Agreement, or to
submit to the Authority any of the accountings required under
Paragraphs 4 or 5 of ARTICLE VI hereof, and such failure shall not be
remedied within ten days after the same became due hereunder;
(G) If Concessionaire shall default in fulfilling any of the
other terms, covenants, conditions or warranties to be fulfilled by it
hereunder and shall fail to remedy such default within thirty days
after written notice by the Authority of the-existence of such default,
or if such default cannot with reasonable diligence be cured within a
- 49 -
period of thirty days, then upon the failure of Concessionaire to
commence to cure such default within said thirty-day period and to
proceed with due diligence to complete the remedying of said default;
or
(H) If Concessionaire has made any untrue statement of a
material fact in its Proposal, or if Concessionaire has omitted to
state any material fact in said Proposal which is necessary to make the
statements which were made therein not misleading;
then, upon the occurrence of such event of default, the Authority shall have the
right, without demand or notice, to re-enter and take possession of the Premises
without being guilty of trespass, and, at its election, by written notice to
Concessionaire, without prejudice to any other remedies the Authority may have
as provided by law, either (i) to terminate this Concession Agreement in its
entirety, or (ii) to terminate Concessionaire's right to possession or occupancy
of the Premises only without terminating this Concession Agreement in its
entirety.
If the Authority shall at any time elect to terminate this
Concession Agreement in its entirety as above provided, the Authority, in
addition to any other remedies it may have, may recover from Concessionaire all
damages it may incur by reason of the happening of such event of
default,'including attorneys fees and the cost of recovering the Premises and
including the worth a the time of such termination of the excess, if any, of the
amount of rent reserved in this Concession Agreement for the remainder
- 50 -
of the Term over the then reasonable rental value of the Premises for the
remainder of the Term, all of which amounts shall be immediately due and payable
by Concessionaire to the Authority.
If the Authority shall at any time elect to terminate
Concessionaire's right to possession or occupancy of the Premises only without
terminating this Concession Agreement in its entirety, Concessionaire shall
remain liable for the payment of rent hereunder, except to the extent that the
Authority may receive such rent by reletting the Premises, after first having
applied any such rent so obtained from reletting the Premises to the payment of
the costs of such reletting, including the costs of brokerage fees, attorneys
fees, and the costs of any repairs, alterations, or redecorations necessary or
advisable for such reletting. If the rent collected from reletting is more than
sufficient to pay the full amount of the rent reserved hereunder, together with
the aforementioned costs, the Authority shall apply any surplus to the extent
thereof to the discharge of any obligation of Concessionaire to the Authority
under the terms of this Concession Agreement, including future installments of
rents, and any sum then remaining---shall belong to the Authority and not
Concessionaire. The Authority shall use due diligence to relet the Premises.
Such reletting may be for such term and for such rental as the Authority may
deem advisable, even though the term of any reletting may extend beyond the
unexpired portion of the term of this Concession Agreement, but the provisions
hereinabove set forth with regard to the application of rent from
- 51 -
a reletting shall apply only to the rent collected from reletting for the
unexpired portion of the Term of this Concession Agreement. if the Authority
shall have elected to terminate Concessionaire's right to possession or
occupancy only, the Authority may, at any time thereafter, elect to terminate
this Concession Agreement in its entirety as provided above.
If, for any of the reasons specified above, the Authority
shall either terminate this Concession Agreement in its entirety or terminate
Concessionaire's right to possession only, the rights of the parties with
respect to the furniture, trade fixtures, equipment or other personal property
installed or placed upon the Premises shall be the same as provided in Paragraph
1 of this ARTICLE XII in the case of a termination at the end of the Term
hereof.
ARTICLE XIII
DAMAGE TO PREMISES BY CASUALTY
1. Partial Damage. If any part of the Premises or public facilities
adjacent to the Premises shall be partially damaged by fire or other casualty,
but such damage does not render the Premises untenantable for the purposes for
which the same are leased hereunder, the same shall be repaired to usable
condition with due diligence by the Authority at its own cost and expense.
2. Substantial Damage. If any part of the Premises or the public
facilities adjacent to the Premises shall be so extensively damaged by fire or
other casualty as to render said
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Premises untenantable for the purposes for which the same are leased hereunder,
but if said damage is capable of being repaired in sixty days, the same shall be
repaired and the Premises restored to usable condition with due diligence by the
Authority at its own cost and expense. In such case, the Minimum Annual
Guarantee of the Concessionaire under ARTICLE VI hereof (but not the Percentage
Rents of the Concessionaire) shall be paid up to the time of such. damage and
shall thereafter be abated equitably in proportion to the diminution of the
usefulness of the Premises until such time as such damage shall be repaired
adequately for said Premises to become tenantable for Concessionaire's purposes
as described in ARTICLE IV hereof. The Authority will use its best efforts to
provide Concessionaire with suitable alternative facilities to continue its
operations while-repairs are being completed.
3. Extensive Damage. If any part of the Premises or the public
facilities adjacent to the Premises shall be damaged by fire or other casualty
so extensively as to render said Premises untenantable for the purposes for
which the same are leased hereunder and@if said damage is incapable of being
repaired in sixty days, either the Authority or the Concessionaire may cancel
this Concession Agreement as of the date such damage occurred, by giving the
other written notice of its election to do so within ten days after such damage
occurs, but if this Concession Agreement is not canceled by either the Authority
or Concessionaire within such period, the Authority shall, at its
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own expense, repair such damage and restore the Premises to usable condition and
the Minimum Annual Guarantee of the Concessionaire under ARTICLE VI hereof (but
not the Percentage Rents of the Concessionaire) shall be paid up to the time of
such damage and shall thereafter be abated until such time as such damage shall
be repaired adequately for said Premises to become tenantable for
Concessionaire's purposes as described in ARTICLE IV hereof.
4. Damage Due to Lessee's Negligence. In the event that the Premises or
the public facilities adjacent to the Premises shall be damaged or destroyed by
fire or other casualty or otherwise due directly or indirectly to the negligence
or willful act of Concessionaire, or one-or more of its employees or agents
(acting within the course or scope of their employment), there shall be no
abatement of the Concessionaire's Minimum Annual Guarantee during the
restoration of said Premises, the foregoing provisions of this ARTICLE XIII
notwithstanding, Concessionaire shall have no option to cancel this Concession
Agreement under the provisions of Paragraph 3 of this ARTICLE XIII, and to the
extent that the cost of repairs shall exceed the amount of any insurance
proceeds payable to the Authority by reason of such damage or destruction,
Concessionaire shall pay the amount of such cost to the Authority.
5. Damage to Personal Property. If any equipment, furniture,
furnishings, trade fixtures or other personal property located on the Premises
shall be damaged by fire or other
- 54 -
casualty during the Term hereof, Concessionaire shall repair or replace the same
with due diligence. The proceeds of any insurance maintained on such property by
Concessionaire pursuant to Paragraph 5 of ARTICLE XIV hereof shall be applied
against the cost of such repair and replacement as far as such proceeds shall
go, and the balance of such costs, if any, shall be borne by Concessionaire.
ARTICLE XIV
INDEMNIFICATION AND INSURANCE
1. Indemnification - Authority Held Harmless. Except where otherwise
specifically provided herein or where caused by the willful acts or negligence
of the Authority, its agents or employees, it is an express condition of this
Concession Agreement that the Authority and its directors, officers, agents and
employees shall be free from any and all claims, demands, liabilities, fines,
penalties, or causes of action of every kind or character, whether in law or in
equity, from any cause or causes whatsoever arising from the operation of
Concessionaire's business at the Airport or as the result of anything done or
omitted by Concessionaire or by Concessionaire's employees, agents, licensees,
invitees, contractors or suppliers, and Concessionaire shall indemnify and save
harmless the Authority and its directors, officers, agents and employees against
and from any and all such claims, demands, liabilities, fines, penalties or
causes of action including reimbursing the Authority
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and the other parties indemnified hereunder for all expenses, including
reasonable attorneys' fees, incurred in connection therewith. The Authority
shall give to Concessionaire prompt and reasonable written notice of any such
claim or action known to the Authority, and Concessionaire shall have the right
to investigate, compromise, and defend the same to the extent of its own
interest.
2. General Insurance Requirements. The following general provisions
shall apply to the insurance required of Concessionaire under this Concession
Agreement:
(A) Certification of Insurance. Upon the execution of this
Concession Agreement and from time to time thereafter as requested by
the Authority, Concessionaire will deliver to the Authority a
Certificate of Insurance certifying that all insurance requirements
contained in this Concession Agreement have been complied with as
outlined below. An Xxxxx Certificate of Insurance Form or a substitute
approved by the Authority is the required form in all cases where
reference is made herein to a Certificate of Insurance.
(B) Minimum Financial Security Requirements. Any and all
companies providing insurance required by this Concession Agreement
must meet the following minimum financial security requirements: (i) a
Best's Rating not less than B+ and (ii) current Best's Financial
Category not less than Class VII. These requirements conform to the
ratings published by A. M. Best & Co. in the current Best's
- 56 -
Key Rating Guide--Property-Casualty. The ratings for each company must
be indicated on the Certificate of Insurance.
(C) Insurance Required for Duration of Agreement. Any and all
insurance required by this Concession Agreement shall be maintained by
Concessionaire during the entire length of this Concession Agreement,
including any extensions thereto. The Authority shall have the right to
inquire into the adequacy of the insurance coverages set forth in this
Concession Agreement and to make such adjustments as reasonably appear
necessary.
(D) Mandatory Thirty-Day Notice of Cancellation or Material
Change. The Authority shall, without exception, be given not less than
thirty days notice prior to cancellation for other than non-payment of
premium or prior to any material change of any insurance required by
this Concession Agreement. Non-payment of premium shall require at
least ten days notice of cancellation. Confirmation of this mandatory
notice of cancellation shall appear on the Certificate of Insurance and
on all insurance policies required by this Concession Agreement.
(E) Authority as Additional Insured. The Authority shall be
covered as additional insured under any and all insurance required by
this Concession Agreement, and such insurance shall be primary with
respect to the additional insured. Confirmation of compliance with this
requirement
- 57 -
shall appear on the Certificate of Insurance, and on any applicable
insurance policies.
(F) Authorization and Licensing of Agent. Each and every agent
acting as authorized representative on behalf of a Company affording
coverage shall warrant when signing the Certificate of Insurance that
specific authorization has been granted by the Companies for the agent
to bind coverage as required and to execute the Certificate of
Insurance as evidence of such coverage. In addition, each and every
agent shall warrant when signing the Certificate of Insurance that the
agent is licensed to do business in the State of North Carolina and
that the company or companies are currently approved by the North
Carolina Department of Insurance. 3. Liability Insurance Requirements.
Concessionaire shall procure the following liability insurance
coverages, each with combined single limits in the minimum amounts
indicated:
(A) General Liability Insurance - $2,000,000;
(B) Products Liability Insurance - $2,000,000;
(C) Liquor Liability Insurance - $2,000,000; and
(D) Excess Liability Insurance - $5,000,000 in
addition to the underlying coverages.
4. Workers' Compensation and Employer's Liability Insurance. In
addition to the coverages required under Paragraph 3 hereof, Concessionaire
shall procure and maintain Workers' Compensation and Employer's Liability
Insurance with minimum
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limits as follows, such insurance to cover each and every employee of
Concessionaire:
(A) Workers' Compensation Employer's Liability- Statutory;
(B) Employer's Liability:
(i) Bodily Injury by Accident/Disease--$100,000
each accident;
(ii) Bodily Injury by Accident/Disease--$100,000
each employee; and
(iii) Bodily Injury by Accident/Disease-- $500,000
policy limit.
5. Fire Insurance. The Authority shall maintain at its expense standard
fire and extended coverage as well as boiler and other vessel insurance on the
Terminal Building including, but no limited to, improvements to the real
property made by Concessionaire, title to which have vested in the Authority.
Concessionaire shall maintain at its expense standard fire and insurance
coverage satisfactory to the Authority for all items of personal property upon
the Premises, such insurance to name Concessionaire and the Authority as the
insureds, as their respective interests may appear, and Concessionaire shall
deliver a Certificate of Insurance to the Authority with respect thereto. The
insurance to be maintained by the Authority and by Concessionaire hereunder will
be to the extent of at least eighty percent (80@) of full replacement value of
the property to be insured less a standard disappearing deductible clause.
6. Waiver of Subrogation by the Authority. The Authority releases
Concessionaire, to the extent of proceeds received-by
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the Authority from its insurance coverage, from any liability for loss or damage
caused by fire or any of the extended coverage perils included in the
Authority's insurance policies even if such fire or other casualty should be
brought about by the default or negligence of Concessionaire or its subtenants
or the agents or employees of any of them; provided that this release shall be
in effect only with respect to loss or damage occurring during the time that the
Authority's policies for fire and extended coverage insurance contain a clause
to the effect that this release shall not affect the right of the Authority to
recover under such policies. The Authority will request each insurance company
writing its fire and extended coverage insurance policies to include such a
clause but only so long as it is includable without extra cost or, if extra cost
is chargeable therefor, only so long as Concessionaire pays such extra cost. If
extra cost is chargeable therefor, the Authority will advise Concessionaire of
such extra cost, and Concessionaire, at its election, may pay the same, but
shall have no obligation to do so.
7. Waiver of Subrogation by Concessionaire. Concessionaire releases the
Authority, to the extent of the proceeds received by the Concessionaire from its
insurance coverage on its property at the Airport, from any liability for loss
or damage caused by fire or any of the extended coverage perils included in
Concessionaire's insurance policies covering its property at the Airport even if
such fire or other casualty
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should be brought about by the default or negligence of the Authority, its
officers, agents or employees; provided that this release shall be in effect
only with respect to loss or damage occurring during the time that
Concessionaire's policies for fire and extended coverage insurance contain a
clause to the effect that this release shall not affect the right of
Concessionaire to recover under such policies. Concessionaire will request each
insurance company writing fire and extended coverage insurance policies covering
its property at the Airport to include such a clause but only so long as it is
includable without extra cost, or if extra cost is chargeable therefor, only so
long as the Authority pays such extra cost. if extra cost is chargeable
therefor, Concessionaire will advise the Authority of such extra cost, and the
Authority, at its election, may pay the same, but shall have no obligation to do
so.
ARTICLE XV
COMPLIANCE WITH RULES AND REGULATIONS
Concessionaire covenants and agrees to observe and comply with, and
this Concession Agreement shall be subject to, all requirements of the
constituted public authorities, all federal, state and local statutes, laws,
ordinances, rules, regulations and standards now and hereafter in force, which
may be applicable to the operation of Concessionaire's business at the Airport,
including, but not limited to, all Rules and Regulations adopted from time to
time by the Authority and laws, rules and regulations relating to the sale of
alcoholic beverages, food
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handling, sanitation, health and safety, non-discrimination and the use or
employment of socially and economically disadvantaged individuals accommodations
for handicapped persons, and Airport Security, insofar as such laws, rules and
regulations may be applicable to Concessionaire.
ARTICLE XVI
ENVIRONMENTAL CONCERNS
Concessionaire shall not cause or permit any gasoline, oil or
hazardous, toxic or dangerous waste, substance or material to be used or placed
on, under, or about the Airport in violation of any governmental laws or
regulations, or rulings, either federal or state, applicable to environmental
concerns, including, without limitation, the North Carolina Oil Pollution and
Hazardous Substances Control Act, the Comprehensive Environmental Response,
Compensation and Liability Act, the Resource Conservation and Recovery Act, the
Toxic Substances Control Act and the Clean Water Act. In the event
Concessionaire becomes aware that any gasoline, oil or hazardous, toxic or
dangerous waste, substance or material has been used or placed by it or its
agents, servants or employees on the Airport in violation of any such
governmental law, regulation or ruling, Concessionaire shall immediately notify
the Authority in writing of such fact, and if such occurrence results from a
breach by Concessionaire of its obligations hereunder, Concessionaire shall, at
Concessionaire's expense, take such remedial action as is necessary to correct
any such violation, remove from the Airport
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such substances and materials giving rise to any such violation, and take such
action as is necessary to prevent a recurrence of such violation.
Concessionaire shall keep and hold harmless the Authority an its
directors, officers, agents and employees from and against an and all costs of
clean up or other remedial actions, claims, demands, suits, judgments, fines,
penalties, costs and expenses for violations of any such governmental law,
regulation, or ruling resulting from Concessionaire's operations hereunder upon
the Airport; and Concessionaire shall reimburse the Authority and the other
parties indemnified hereunder for all expenses, including reasonable attorneys,
fees, incurred in connection therewith. The Authority shall give to
Concessionaire prompt and reasonable written notice of any such claim or action
known to the Authority, and Concessionaire shall have the right to investigate,
compromise, and defend the same to the extent of its own interest.
ARTICLE XVII
GENERAL PROVISIONS
1. Non-Discrimination. Concessionaire, for itself and its successors in
interest and assigns, as a part of the consideration hereof, does hereby
covenant and agree that (i) no person on the grounds of race, color or national
origin shall be excluded from participation in, denied the benefit of, or be
otherwise subject to discrimination in Concessionaire's operations under this
Concession Agreement, (ii) that in
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construction of any improvement by Concessionaire on, over or under the Airport
and the furnishing of services thereof, 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, (iii) that Concessionaire shall
operate under this Agreement in compliance with all other requirements imposed
by or pursuant to Title 49, Code of Federal Regulations, Department of
Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination
in Federally-assisted Programs of the Department of Transportation-Effectuation
of Title VI of the Civil Rights Act of 1964, and as such Regulation may be
amended. In the event of the breach of any of the above non-discriminational
covenants, the Authority shall have the right to terminate this Agreement,
provided, however, that this provision shall not be effective until the
procedures of Title 49, Code of Federal Regulations, Part 21 are followed and
completed including exercise or expiration of appeal rights.
2. Affirmative Action. Concessionaire assures that it will undertake an
affirmative action program as required by 14 CFR Par 152, Subpart E, to the
extent the same may be applicable to Concessionaire's operations under this
Concession Agreement, to insure that no person shall on the grounds of race,
creed, color, national origin, or sex, be excluded on these grounds, from
participation in or receiving the services or benefits of any program or
activity covered by said Subpart; that it will
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require that it covered subtenants or concessionaires, if any, provide
assurances to Concessionaire that they similarly will undertake affirmative
action programs and that they will require assurance from their
suborganizations, as required by 14 CFR Part 152, Subpart E, to the same effect.
3. Accessibility to the Disabled. Concessionaire shall comply in full
with all federal and state laws, rules and regulations relating to
non-discrimination against handicapped and disabled persons, and the
accessibility of Concessionaire's facilities and services to such persons,
insofar as such laws, rules and regulations shall apply to Concessionaire, to
any construction undertaken by Concessionaire hereunder, or to any of
Concessionaire's operations at the Airport, including among such laws, rules and
regulations, without limitation, Section 504 of the Rehabilitation Act of 1973
(29 USC 794), the Americans with Disabilities Act of 1990 (42 USC 12101-12213)
and regulations issued pursuant thereto, and 49 CFR Part 27, as the foregoing
may be amended from time to time.
4. Failure to Enforce. The failure by the Authority to enforce, for any
period or periods, any of the terms, covenants and conditions herein contained
shall not be deemed a waiver of any rights on the part of the Authority to
enforce said terms, covenants and conditions at a later date, nor shall any
failure by the Authority to enforce any of the terms of this Concession
Agreement be construed to be or act as a waiver by the Authority of any
subsequent rights so to enforce.
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5. Invalid Provisions. In the event any covenant, condition or
provision herein contained is held to be invalid, the invalidity of any such
covenant, condition or provision shall in no way effect any other covenant,
condition or provision herein contained; provided, however, that the invalidity
of any such covenant, condition or provision does not materially prejudice
either the Authority or Concessionaire in their respective rights and
obligations contained in the valid covenants, conditions or provisions of this
Concession Agreement.
6. Non-Waiver. The payment or acceptance of rentals and fees by the
parties hereto for any period after a default of any of the terms, covenants,
and conditions herein contained to be kept, performed and observed by said
parties shall not be deemed as a waiver of any rights on the part of either of
them to terminate this Concession Agreement for any subsequent failure or for
the continued failure by the other party so to perform, keep and observe the
terms, conditions, or covenants hereof to be performed, kept and observed by
such other party. No waiver by either party of any of the terms of this
Concession Agreement to be kept, performed, and observed by the other party
shall be construed to be or act as a waiver of any subsequent default on the
part of the other party.
7. Holding Over. In the event Concessionaire shall continue to exercise
the rights and privileges herein granted after the expiration of the Term hereof
without the written approval of the Authority, such holding over shall not be
deemed
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to operate as a renewal or extension of this Concession Agreement, but shall
only create an extension from month-to-month.
8. Subordination. This Concession Agreement shall be subject and
subordinate to the provisions of the Federal Airports Act of 1946, as amended,
or any act which replaces the Federal Airports Act of 1946 relative to the
operation, maintenance and development of the Airport and to any agreement
entered into between the Authority and the United States Government pursuant
thereto.
9. Interpretation. This Concession Agreement s hall be construed in
accordance with the laws of the State of North Carolina Nothing in this
Concession Agreement shall be construed or interpreted in any manner whatsoever
as limiting, relinquishing, or waiving any rights of ownership enjoyed by the
Authority in the Airport property or in any manner waiving or limiting its
control over the operation or maintenance of Airport property or in derogation
of such governmental rights as the Authority may possess, except as is
specifically provided for herein.
10. Successor and Assigns Bound by Covenant. All covenants,
stipulations and agreements in this Concession Agreement shall extend to and
bind the legal representatives, heirs, successors and assigns including
successors-in-interest by merger or consolidation of the respective parties
hereto.
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11. No Partnership Created. No partnership relationship between the
parties hereto or joint venture is created by this Concession Agreement, and
Concessionaire is not made the agent or representative of the Authority for any
purpose or in any manner whatsoever.
12. Concessionaire is Independent Operator. The Concessionaire is and
shall be an independent operator responsible to all parties for all of its acts
or omissions and the Authority shall be in no way responsible for the acts or
omissions of the Concessionaire.
13. Notices. Any notice required or permitted under this Concession
Agreement shall be in writing, whether or not so state in the preceding
provisions hereof, and shall be delivered by ha or by certified mail, return
receipt requested, postage prepaid, addressed to the party for whom intended at
the following address:
For Concessionaire: [
Attention:
For the Authority: PIEDMONT TRIAD AIRPORT AUTHORITY
P. 0. Xxx 00000
Xxxxxxxxxx, XX 00000
Attention: Executive Director
or to such other address as the party to receive such notice may hereafter
direct in writing by as a notice given to the other in accordance with this
Paragraph 13. Notice sent by certified mail postage prepaid, and addressed to
one of the parties as required
- 68 -
in this Paragraph 13 shall be deemed to have been given to such party three (3)
days after the date it was posted in the mail.
14. No Personal Liability. No member, director, officer, agent or
employee of the Authority shall be charged personally or held to be
contractually liable by or to Concessionaire under any terms or provisions of
this Concession Agreement.
15. Headings. The article and paragraph headings are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope or intent of any provision of this Concession Agreement.
16. Construction. Each term and provision of this Concession Agreement
shall be construed to be both as a covenant and as a condition.
17. Survival of Obligations. Any obligation hereunder of either of the
parties, including the obligation to pay rents, preserve records, submit to
audits, provide indemnity, or do any other act or thing which is required to be
performed after the expiration of the Term hereof, or which by its nature is to
be performed after the expiration of the Term hereof, shall survive the
expiration of such Term and shall remain binding upon the party which is
required to keep or perform the same until such obligation has been discharged
by such party in full.
18. Entire Agreement. This instrument contains all the agreements and
conditions made between the parties hereto with respect to the matters contained
herein and may not be modified orally or in any other manner other than by
agreement in writing,
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signed by both parties hereto or their respective successors.
IN WITNESS WHEREOF, each of the parties has executed this Concession
Agreement under seal, all on the day and year first above written.
PIEDMONT TRIAD AIRPORT AUTHORITY
By
Chairman
Attest:
Secretary
CREATIVE HOST SERVICES, INC.
By
President
Attest:
Secretary
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NORTH CAROLINA
GUILFORD COUNTY
I, ____________________, as a Notary Public in and for said County and
State, certify that personally came before me this date and acknowledged that he
is Secretary of the PIEDMONT TRIAD AIRPORT AUTHORITY, as a body politic and
corporate, and that by authority duly given by said Authority, the foregoing
instrument was signed in its name by its Chairman, sealed with its corporate
seal, and attested by himself as its Secretary.
WITNESS my hand and notarial seal on this the _____ day of ___________,
1997.
________________________________________
Notary Public
My Commission Expires:
_____________________________
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STATE OF _____________
COUNTY OF ____________
I, ________________, as a Notary Public in and for said County and
State, certify that personally came before me this day and acknowledged that
he/she is the Secretary of CREATIVE HOST SERVICES, INC., as a California
corporation, and that by authority duly given and as the act of the corporation,
the foregoing instrument was signed in its corporate name by its President,
sealed with its corporate seal, and attested by himself/herself as its
Secretary.
WITNESS my hand and notarial seal, this _____ the day of _______, 1997.
_______________________________________
Notary Public
My Commission Expires:
_______________________________
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