Res 053-2018Resolution No. 53-2018
Resolution authorizing the City Manager to execute an agreement
with Tamitha Holloway dba Southern Girl Catering, a sole
proprietorship, at Wichita Falls Regional Airport for Food, Beverage
and Gift Shop Concessions at the Wichita Falls Regional Airport
WHEREAS, the City of Wichita Falls desires food, beverage and gift shop
concession services at Wichita Falls Regional Airport; and,
WHEREAS, Southern Girl Catering proposes to provide these concession
services as identified in the proposed agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
The City Manager is authorized to execute the food, beverage and gift shop
services agreement with Tamitha Holloway dba Southern Girl Catering, with changes
thereto, in a form approved by the City Attorney.
PASSED AND APPROVED this the 1 st day of May, 2018.
•
ATTEST:
/)/ W
Deputy City CI.: k
FOOD, BEVERAGE, AND GIFT SHOP CONCESSION AGREEMENT
THIS AGREEMENT, by and between CITY OF WICHITA FALLS, TEXAS, a
municipal corporation principally situated in Wichita County, ("City") and Tamitha
Holloway dba Southern Girl Catering at Wichita Falls Regional Airport, "Company") a
corporation existing under the laws of the State of TEXAS whose address is listed in
Section 17.2.
WITNESSETH:
WHEREAS, City controls, owns, operates, and maintains an airport in the City of
Wichita Falls, Wichita County, Texas known as the Wichita Falls Regional Airport
("Airport"), with the power to grant rights and privileges with respect thereto, and
WHEREAS, Company is engaged in the business of operating Food and
Beverage facilities as a service to the traveling public, and
WHEREAS, proposals were received for the operation of a food, beverage and gift
shop concession at the Airport pursuant to a Request for Proposals and the
specifications contained therein, and Company was the business selected by this
process and determined to be qualified to operate the concession, and
WHEREAS, City, on the terms and conditions herein contained, is willing to grant
to Company the right to operate the food, beverage and gift shop concession at the
Airport.
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants contained herein, City and Company agree as follows:
SECTION 1
DEFINITIONS
Section 1.1 Definitions. The words and phrases defined in Section 1 shall have the
following meanings when used elsewhere in this Agreement.
(a) Agreement means this Food, Beverage and Gift Shop Concession Agreement
between City and Company, as the same may be amended or supplemented
from time to time pursuant to the terms hereof, which shall include the City's
Request for Proposal and Company's response to said Request for Proposal,
which is attached hereto and made an integral part hereof.
(b) Airport means the Wichita Falls Regional Airport.
(c) City means the City of Wichita Falls, a municipal corporation.
(d) City Property means finishings, fixtures, furnishings and equipment acquired,
installed and owned by the City.
(e) Commencement Date shall mean the first day of the Primary Term of this
Agreement, which shall be the date of execution by the City Manager of the City
of Wichita Falls, following execution by company, and shall be the effective date
of the agreement.
(f) DBE means Disadvantaged Business Enterprise as defined in 49 C.F.R. Part 23,
subpart F, and shall include small business concerns which are owned and
controlled by socially and economically disadvantaged individuals which shall
include small business administration ("SBA"), Section 8(a) certificate holders.
(g) Director shall mean the Director of Aviation, Traffic & Transportation of the City,
or the designee of the Director of Aviation, Traffic & Transportation whenever the
Director of Aviation, Traffic & Transportation is unable to act in such capacity.
(h) DOT means the United States Department of Transportation or any department
of agency succeeding to its jurisdiction and function.
(i) EPA means the United States Environmental Protection Agency and any federal,
state or local agency, or governmental entity, succeeding to, or being delegated
with, its jurisdiction, functions, or responsibilities.
(j) FAA means the Federal Aviation Administration of the United States Department
of Transportation, or any department or agency succeeding to its jurisdiction or
function.
(k) FAR means Federal Aviation Regulations and shall include, but not be limited to,
all regulations, policies, statements and directives promulgated or issued by the
FAA.
(1) Finishes means those improvements to the Leased Premises installed by
Company, including counters, partitions, carpeting, wall coverings, counters,
heating, plumbing, ventilation, and air conditioning duct work and controls,
ceilings, lighting and power fixtures, wiring, accessories and parts necessary to
bring power to the Leased Premises.
(m) Fiscal Year shall mean City's fiscal year meaning the twelve (12) month period
commencing October 1St and extending to September 30' of the following year.
(n) Governmental Requirements means all federal, state and local laws, rules,
regulations, security plans, and rulings, including all amendments, now in effect
or hereinafter enacted.
(o) Expendables shall mean commodities, supplies, glassware, dishes, utensils and
consumable items.
(p) Leased Premises means the area or areas designated on Exhibit "A" attached
hereto as the place or places within the Airport where concessions are located.
(q) Leasehold Improvements means all improvements and equipment which are
affixed to the Leased Premises and which cannot be removed without material
damage to the Leased Premises.
(r) Minimum Annual Guarantee if applicable, means the annual minimum
guarantee payable monthly by Company to City subject to each and every term
and condition contained in this Concession Agreement. In the event of a partial
month, the monthly portion of the Minimum Annual Guarantee shall be prorated
based on the number of days during the month that this agreement was in effect.
(s) Personal Property shall mean all movable property of the Company not directly
related to the restaurant operations of the privileges granted hereunder, including
office furniture, office equipment, and office supplies.
(t) Term shall mean the fixed term commencing no later than sixty (60) days after
the commencement date, or upon the opening of operations for business,
whichever occurs earlier.
(u) Refurbish or Refurbishment shall mean the routine repainting or redecoration
of public areas within the Leased Premises, as necessary, including the
replacement or repair of worn carpet, tile, furniture, fixtures or finishes.
Refurbishment shall not mean the performance of routine or deferred
maintenance.
(v) Request for Proposal (RFP) means City's Request for Proposal for Food,
Beverage, and Gift Shop Concession for the Wichita Falls Regional Airport, RFP
# 05-14 Dated November 9, 2014.
(w) Terminal Building means the Passenger Terminal Building at the Airport, as it
exists on the date hereof, and any additions made thereto during the term of this
Agreement.
(x) Trade Fixtures means all non -affixed items that are not City property, except
Expendables, and Personal Property, which can be removed without damage to
the Leased Premises, including cash registers, safes, display fixtures and the
like.
(y) TSA shall mean Transportation Security Administration of the United States
Department of Homeland Security, or any department or agency succeeding to
its jurisdiction or function responsible for providing personnel and equipment to
screen passengers, baggage and goods at the Airport and enforcing federal
transportation security regulations.
Section 1.2 Rules of Construction. Throughout this Agreement, unless the
context clearly shall require otherwise
(a) The singular includes the plural and vice versa;
(b) The words "and" and "or" shall be both conjunctive and disjunctive;
(c) The words "hereby", "herein", "hereof", "hereto" and "hereunder" and any similar
terms used in this Agreement refer to this Agreement;
(d) The words "all" and "any" mean "any and all";
(e) The word "including" shall not mean in a limiting nature, but shall be construed to
mean "including without limitation";
(f) The word "he" or any other masculine pronoun includes any individual regardless
of gender;
(g) Words denoting persons shall include firms, associations, partnerships, limited
liability corporations, limited liability partnerships, trusts, corporations and other
legal entities, including public bodies, as well as natural persons.
(h) Reference to any attachments or exhibits shall mean exhibits attached to this
Agreement which shall be deemed incorporated fully by reference and made an
integral part of this Agreement; and
(i) Any headings preceding the text of the Articles, and Sections of this Agreement
and any Table of Contents or marginal notes appended to notes hereof shall be
solely for convenience of reference and shall not constitute a part of this
Agreement, nor shall they affect the meaning, construction, interpretation or
effect of this Agreement.
(j) Reference to articles or sections respectively shall mean articles or sections of
this Agreement.
(k) Reference to "travel related items" and "gift shop" are used interchangeably.
(1) Reference to Leased Premises shall also include public vending locations
SECTION 2
TERM
Section 2.1 Term. This Agreement shall be a three year Agreement, with the option of
both parties to renew the Agreement for two additional years. This Agreement shall
become effective on and shall continue unless sooner
terminated in accordance with this Agreement until
Section 2.2 Holding Over. To provide continuous service to the air traveler and
public, Company may, upon written request of City, remain upon the Leased Premises
and manage the operation of all concessions, including approved vending, subject to
this Agreement for up to a ninety (90) day period, as so requested by City, after
termination of this Agreement by expiration of the Term, cancellation or default, to give
a new company sufficient time to be chosen and commence operation. Upon the
termination of this Agreement, through the passage of time or otherwise, Company
shall aid City, in all ways possible, in continuing the business of management of the
operation of the facilities subject to this Agreement without interruption, between
termination of this Agreement and commencement of operations by a new company.
In the event that Company, without request or objection by City, shall continue to
occupy the Leased Premises beyond the Term of this Agreement, such holding over
shall not constitute a renewal of this Agreement, but shall be considered a month-to-
month tenancy only upon the terms incorporating all terms and conditions of this
Agreement; except provided, however that, at City's option, the Minimum Annual
Guarantee shall be equal to the last Minimum Annual Guarantee paid to City, increased
by Consumer Price Deflator Index published by the U.S. Department of Labor, as may
be selected by City. The Company will continue to pay rentals using the adjusted
Minimum Annual Guarantee and the payment structure defined in Section 5 hereof. No
such holdover shall be deemed to operate as renewal or extension of the Term. Such
month-to-month tenancy may be terminated by City or Company by giving thirty (30)
days' written notice of said termination to the other party at any time. Company will
have no rights to renew or extend the term of this Agreement.
SECTION 3
LEASED PREMISES
Section 3.1 Leased Premises. For and in consideration of the mutual covenants
contained herein, City hereby provides Company 1,505 square feet of concession
related operating space hereinafter called "Leased Premises", as set forth on Exhibit A.
For purposes of this Agreement relating to Company's responsibilities, the Leased
Premises shall mean the areas shown on Exhibit A where (a) the exact boundaries are
deemed to be three (3) inches inside each wall separating the Leased Premises from
the adjacent premises or the external Terminal wall, and (b) with respect to the facade
and/or wall on the front of the Leased Premises, separating the Leased Premises from
the Terminal common areas, the exact boundary is deemed to be the external face of
the facade and/or wall.
In addition, and with the written approval of the Director, kiosks, patio -type tables and
similar facilities may be located in other public areas of the terminal if doing so is
warranted for enhanced customer service, and does not interfere with other terminal
and passenger flow activities.
The area and location may from time to time be adjusted as hereinafter provided and
subsequently illustrated on a revised Exhibit A.
Section 3.2 Extent of Leasehold. In addition to the exclusive use of the Leased
Premises described in Section 3.1 above, Company shall possess the non-exclusive
right of ingress and egress to and from the Leased Premises as may be necessary on
through areas designated by the Director, subject to Airport rules and regulations,
including security regulations, as may be amended from time to time, provided that
Company's exercise of such right shall not impede or interfere unduly with the operation
of the Airport by City, its tenants, customers and other authorized occupants. Company
shall not place or install any racks, stands or other display of merchandise or trade
fixtures in any Airport property outside the Leased Premises without the express prior
consent of the Director. In no event will Company engage in any activity on the Airport
outside the Leased Premises for the recruitment or solicitation of business.
Section 3.3 Remeasurement of Leased Premises. At any time and from time to
time, the Director may cause City to conduct a space audit pursuant to which City
remeasures the Leased Premises, using the Airport's then current measurement
specifications. At the Director's request, Company and City shall enter into an
amendment of this Agreement reflecting the results of such remeasurement.
Section 3.4 Changes to Airport. Company acknowledges and agrees that (a) City
shall have the right at all times to change, alter, expand, and contract the Airport,
including the Terminal Building; (b) City has made no representations, warranties, or
covenants to Company regarding the design, construction, pedestrian traffic, or views of
the Airport or the Leased Premises. Without limiting the generality of the foregoing,
Company acknowledges and agrees that the Airport (i) is currently undergoing and may
from time to time hereafter undergo renovation, construction, and other Airport
modifications; and (ii) may from time to time adopt rules and regulations relating to
security and other operational concerns that may affect Company's business. Such
construction and renovation programs might involve barricading, materials storage,
noise, the presence of workers and equipment, rearrangement, utility interruptions, and
other inconveniences normally associated with construction and renovation. Although
City will use reasonable efforts to minimize the effect of Airport changes on Company's
business, Company acknowledges that such activity may have some effect on the
Company's operations located at the Airport, and Company shall not be entitled to any
rent credit or other compensation therefor.
At any time and from time to time, City may, without the consent of Company, and
without effecting Company's obligations under this Agreement, at City's sole discretion,
(a) change the shape, size, location, number and extent of the improvements in any
portion of the Airport, including without limitation the concourses, boarding areas, and
restaurant areas and security areas located within the Terminal Building, (b) build
additional stories above or below the Airport buildings, including the Terminal Building,
(c) eliminate or relocate public entrances to the Leased Premises so long as there is at
all times one public entrance to the Leased Premises, (d) construct multi-level, elevated
or subterranean parking facilities and (e) expand or contract the Airport, including
redefining the Airport boundaries so as to include additional lands within the Airport or
exclude lands from the Airport or both. Without limiting waivers set forth elsewhere in
this Agreement, Company hereby waives all claims against City and releases City from
all losses that Company suffers or incurs arising out of or in connection with any
changes to the Airport or any portion of the Airport and Company further agrees that
Company will not be entitled to any rent abatement or any other rent relief in connection
with any changes to the Airport or any portion of the Airport.
Section 3.5 Common Areas. The term "common areas" means all areas and
facilities located within the Airport that are determined by City from time to time for the
general use and convenience of the tenants of the Airport and other occupants of the
Airport and the traveling public and other visitors to the Airport such as concourses,
sidewalks, elevators, escalators, parking areas and facilities, restrooms, pedestrian
entrances, driveways, loading zones and roadways. City may, in its sole discretion, and
without any liability to Company (a) change the common areas, (b) increase or
decrease the common areas (including conversion of common areas to leasable areas
and the conversion of leasable areas to common areas) and (c) impose parking
charges. City will, in its sole discretion, maintain the common areas, establish and
enforce Airport rules and regulations concerning the common areas, close temporarily
portions of the common areas for maintenance purposes, and make changes to the
common areas including changes in the location of security check points, driveways,
entrances, exits, parking spaces, parking areas, and the direction of the flow of traffic.
SECTION 4
USES AND PRIVILEGES
Section 4.1 Concession Rights Granted. For and in consideration of the prompt
payment of the compensation to City as hereinafter provided, City hereby grants to
Company, subject to all of the terms, covenants and conditions of this Agreement, the
Terminal Building -exclusive right and obligation to operate and maintain the food,
beverage and gift shop services operation.
Company shall enjoy the following privileges in connection with its use of the Leased
Premises:
(a) The right, privilege, and obligation to conduct and operate a Terminal Building
food, beverage and gift shop services operation at the Airport, as well as
approved vending services in the secure area of the terminal building. Company
shall not engage in any other business on the Airport under this Agreement.
(b) The right, privilege and obligation to sell food, alcoholic and non-alcoholic
beverages to passengers, employees and the general public and to cater airline
and private aircraft food and beverage needs, if required by airline or charter
companies, as well as meetings and special events taking place on airport, in
accordance with the terms and conditions outlined herein. Company may also
provide catering services to the general public from the leased premises.
Company shall sell food and beverages only in accordance with the terms of this
Agreement.
(c) If space is available, and at the sole option of City, Company may lease
additional storage and office space identified by City as available for such
purposes, at an annual rate to be paid monthly in an amount at least equal to the
then current rate on a per square foot basis for similar or equivalent space.
Section 4.2 Operational Assurances and Requirements.
(a) Deposit. Company shall pay to the City a refundable deposit of $500.00 prior to
occupying leasehold. Deposit will be held to cover cleaning or repairs to
leasehold should Company vacate without cleaning or repairing leasehold to the
satisfaction of the Director.
(b) Approval of Menus. Company shall not conduct any other business, or sell any
type of food and beverage products unless specifically authorized to do so by the
Director. Company shall be permitted to sell those menu items outlined in
Exhibit B, attached. Changes to the menu and prices shall be submitted to the
Director for his review and written approval prior to the change. City will respond
to such requests for authorization within a reasonable time not to exceed five (5)
business days. This does not apply to menus for catering, meetings and special
events, which are for private use only and not for public consumption. However,
those requiring catering services have the right to bring in outside food and
beverage, as long as these services are not utilized in the leased area identified
in this agreement.
(c) Development of Food, Beverage and Gift Shop Business. At the location(s)
indicated herein, Company shall provide food, beverage and gift shop services
every day of the term hereof, without exception. The Company shall also
provide vending options located in the secure portion of the airport terminal,
accessible for passengers that have cleared the Transportation Security
Administration screening process. City may consider additional proposed
vending options proposed by the Company in other public areas of the facility.
Company shall not divert, cause or permit to be diverted any business from the
Leased Premises and Vending Locations without the written approval of the
Director. Such approval shall be subject to fees for non -airport use of airport
facility and equipment. It is acknowledged that Company may operate non -
airport catering, and that all revenues deriving there from will be included in
gross revenues in accordance with Section 5. Company shall take all reasonable
measures, in every proper manner, to develop, maintain and increase the
business conducted by it under this Agreement. Company shall actively operate
each food, beverage and gift shop facilities so as to best serve the needs of the
traveling public at the airport.
(d) Advertising and Promoting of Products. Company may advertise brand-name
products on its packaging and within the Leased Premises and Vending
Locations only upon the written approval of the Director. City will respond to
such requests for authorization within a reasonable time not to exceed five (5)
business days. Receipts for any such advertising or promotion, if any, shall be
subject to fees as described in Section 5 hereof. This does not pertain to the
advertisement or promotion of food, beverages and travel related items sold in
the leased premises and Vending Locations.
(e) Dispute with Other Tenants. In the event of a dispute between Company and
any other Airport tenant as to the services to be offered or products to be sold,
Company shall meet and confer with the Director, who shall consider the rights
and obligations set forth in the tenants' Agreements with the City and make a
determination. Company agrees that it shall be bound by the decision of the
Director.
(f) No Other Uses. Company shall not use nor permit the Leased Premises and
Vending Locations to be used for any purpose other than as herein above set
forth except with the prior written consent of City, nor for any use in violation of
any applicable present or future law, ordinance, rule or regulation of any
governmental authority, agency, department or officer thereof.
(g) Purchasing. The Company shall have the right to purchase Personal Property
or services, materials and supplies used by Company from any person or
company of Company's choice. The Company shall have the right to make
agreements with any person or company of Company's choice for services to be
performed for Company which are incidental to the conduct of Company's
activities. It is understood that if Company's suppliers, contractors and
furnishers of service exclusively use any portion of the Airport or facilities of City,
then City may charge reasonable fees therefore, but nothing herein gives the
Company the right to grant to any other party the privilege to use any portion of
the Airport or facilities of City.
(h) Disposal of Equipment. The Company may dispose of equipment, which is not
City property, and which has been replaced or fully amortized, or which is
unnecessary; provided, that such right shall not be construed as authorizing the
conduct of a separate business.
(i) Employees' Parking Facilities. If not otherwise provided, Company shall have
the right to the use of reasonably adequate vehicular parking facilities for its
employees employed at the Airport in common with other employees, which
facilities shall be located in an area designated by the Airport Director as near as
practicable to the Terminal Building. Only employees assigned to the Airport shall
use the Terminal Building employee parking facilities. City reserves the right to
assess a reasonable charge for such employee parking facilities, based on the
cost of providing, operating, and maintaining the facilities as set forth on City's
published schedule of Airport rates, fees and charges.
(j) Access. (1) Subject to the provisions hereof, the rules, regulations, and
ordinances, and such restrictions as Company may impose with respect to its
Leased Premises, City hereby grants to Company, its agents, suppliers,
employees, contractors, passengers, guests, and invitees, the right and privilege
of access, ingress, and egress to the Leased Premises and to non -secure public
areas and non -secure public facilities of the Terminal; (2) The ingress and
egress provided for above shall not be used, enjoyed, or extended to any person
engaging in any activity or performing any act or furnishing any service for or on
behalf of Company that Company is not authorized to engage in or perform
under the provisions hereof unless expressly authorized by City; (3) City shall
have the right at any time or times to close, relocate, reconstruct, change, alter,
or modify any such means of access provided for Company's use pursuant to
this Agreement or otherwise, either temporarily or permanently; provided that
reasonable notice to Company and a reasonably convenient and adequate
means of access, ingress and egress shall exist or be provided in lieu thereof.
City shall suffer no liability by reason thereof and such action shall in no way
alter or affect any of Company's obligations under this Agreement
(k) Company must maintain, at minimum, a state -issued Beer and Wine Permit
at all times and provide such beverages for sale at all times as permitted by
such Permit.
(1) Pest Control. Company is responsible for maintaining monthly scheduled
licensed pest control.
(m) Grease Trap. Company is responsible for cleaning the grease pit and ensuring
proper disposal of removed grease.
Section 4.3 No Joint Venture or Partnership. This Agreement shall not be deemed
or construed (a) to create any relationship of joint venture or partnership between City
and Company, (b) to give City any interest in the business of Company, or (c) to grant
to Company any powers as an agent or representative of City, the Authority, or the City
for any purpose or to bind City, the Authority, or the City.
SECTION 5
COMPENSATION, BOOKKEEPING, AND AUDIT
Section 5.1 Compensation
(a) Fees. As consideration for the privilege of operating the restaurant hereunder,
the Company shall pay to the City 21/6 of gross receipts in the first twelve-month period
of operation, 3% of gross receipts in the second twelve-month period of operations, and
4% of gross receipts for the remainder of the contract term; all fees shall be paid
monthly, for the full term of the Agreement.
(b) Other Fees and Charges. Notwithstanding the above, City expressly reserves
the right to assess and collect the following:
1. A reasonable fee payable by Company or its Terminal Building employees
for the employee parking area(s) provided at the Airport.
2. Charges for other services or facilities not enumerated herein which are
provided by City to Company, at Company's request, except as provided in
Section 7.2. Such services or facilities may include, but are not limited to,
special maintenance of Leased Premises. Charges will be based on the
actual cost of providing such facilities or services.
Section 5.2 — Gross Receipts Defined
As used herein, the term "Gross Receipts" shall include all revenue derived from the
sale of products, services, merchandise and all revenue transactions from Leased
Premises, whether delivered on or off the Airport, and whether paid for in cash or credit,
and regardless of when or whether paid for or not, except only as explicitly excluded
hereunder. Excluded from Gross Receipts shall be:
(a) Federal, state, county, and municipal sales taxes or other taxes separately
stated and collected from customers;
(b) Actual credit card transaction fees not to exceed three percent (3%) for any
given transaction;
(c) Receipts from the sale of or the trade-in value of any Trade Fixtures;
(d) Receipts from, the value of, or the sale of, any supplies or equipment to another
operation or affiliate of Company, whether or not located at the Airport; provided
such sale is incidental to or not made for the purpose of circumventing the fee
provisions of this Agreement.
(e) Receipts in the form of refunds from or the value of merchandise, supplies, or
equipment returned to shippers, suppliers, or manufacturers;
(f) Cost or value of meals provided without charge to employees of Company or the
amount of any discount, if any, given to Airport employees, employees of
Company or employees of other tenants of the Airport;
(g) The amounts of any gratuities paid or given by patrons or customers to
employees of Company, so long as such gratuities are voluntary and not
included in the invoices to such patrons or customers.
(h) Receipts from the sale of uniform or clothing to Company's employees whether
such uniforms or clothing are required to be worn by said employees.
Except as herein above specified, if any charge for any of the products or services
provided hereunder is not assessed, charged, or collected, irrespective of the reason
therefore, the proper amount of such charge shall, nevertheless, be included in the term
"Gross Receipts" as the same is used in this section. Further, no deduction shall be
made from Gross Receipts by reason of any credit loss, charge, or deduction that may
be incurred by reason of the acceptance or use of credit cards or other charge or
charge arrangements.
Section 5.3 — Statements, Books and Records.
Within ten (10) days after the close of each calendar month of the term of this
Agreement, Company shall submit to City, in such detail and form as may be specified
by City, certain information, including but not limited to, a statement of its Gross
Receipts during the preceding month said statement to be signed by a responsible
accounting officer of Company. Said statement shall include, at a minimum, a
breakdown of Company's sales at each location for food, beverages and travel related
items. City reserves the right to change the form of the monthly statement and to
require the submission by Company of other information pertaining to the Gross
Receipts hereunder, and Company agrees to change the form of its statements to that
requested by City and to provide any additional information City may request.
Section 5.4 Late Fees on Overdue Payments
Any payment not received from Company within ten (10) days after the due date shall
accrue a late fee at an interest rate of one percent (1.0%) per month, beginning with the
original due date until paid in full, subject to a minimum late fee of twenty-five dollars
($25.00).
Section 5.5 VIP Program Support
Company agrees to participate in the Fly Wichita Falls VIP Program by providing free
coffee and water (water bottles provided by the Airport) to Fly Wichita Falls VIP
members when they present a membership card.
SECTION 6
IMPROVEMENTS AND EQUIPMENT IN LEASED PREMISES
Section 6.1 Improved Space. The Leased Premises is provided by the city fully
finished and equipped for typical food and beverage services operation.
Section 6.2 Alterations and Improvements. Company shall not install or erect
additional, nonstructural improvements in the Leased Premises, or alter, change, or
make other improvements unless and until plans and specifications for such additional
alterations or improvements shall have been submitted to and approved in writing by
Director. Full and complete plans and specifications for all work, facilities,
improvements, and finishes, and the time required to complete same, shall be
submitted to and receive the written approval of Director before any work or
construction is commenced. Any such alterations or improvements shall be without
cost to City, except as provided in Section 6.3 below. All structural improvements,
equipment and interior design and decor constructed or installed by Company, its
agents, or contractors, including the plans and specifications, shall be of attractive
construction and first-class design and shall comply with any and all applicable statutes,
ordinances, building codes, and rules and regulations. City shall make its architect for
the Terminal Building available for coordination on design matters.
Approval of City shall extend to and include architectural and aesthetic matters and City
reserves the right to reject any layout or design proposals submitted and to require
Company to submit any such layout or design proposal until they meet City's approval.
One reproducible final copy of the as -built plans for all improvements or subsequent
changes therein or alterations thereof to the Leased Premises shall be signed by
Company and submitted to the Director within thirty (30) days following completion of
any project. These plans, and any subsequent modifications or alterations, shall also be
furnished to City on computer discs as electronic files in a format compatible with the
CAD system used by City.
Section 6.3 Title, Removal, and Demolition of Improvements. All permanent
improvements, additions and alterations made to the Leased Premises by Company
shall upon installation become the property of City free and clear of liens or
encumbrances; provided, however, that any Trade Fixtures, signs and other Personal
Property of Company not permanently affixed to Leased Premises shall remain the
property of Company. Should Company fail within twenty (20) business days following
the termination of this Agreement to remove its Trade Fixtures, signs and other
Personal Property of Company not permanently affixed to Leased Premises, then at the
option of City, title to same shall vest in City at no cost to City.
Company shall not remove or demolish, in whole or in part, any improvements upon
Leased Premises without the prior written consent of the Director. Company
understands and agrees that consent may be conditioned upon the obligation of
Company to replace the same by an improvement specified in such consent at
Company's sole expense.
SECTION 7
MAINTENANCE
Section 7.1 City's Obligations in Terminal Building.
(a) City shall provide structural maintenance of the Terminal Building and
maintenance of electrical, heating, ventilating and air conditioning systems
providing services to the leased premises. City may also include a listing of the
Company in the City operated "Fly Wichita Falls" website, along with a link to the
Company's website, as long as the Director finds the Company's website in good,
business -like standing.
(b) City will at all times maintain, operate, and keep in good repair the Terminal
Building, and all appurtenances, facilities, and services now or hereafter
connected thereto.
Section 7.2 Company's Obligations in Terminal Building.
(a) Except for structural maintenance of the Terminal Building, as provided in
Section 7.1, Company shall be obligated, without cost to City, to maintain the
Leased Premises in good appearance, repair, and safe condition consistent with
good business practices, industry standards and in accordance with all
applicable laws and rules and regulations of the City. Company shall maintain
and repair all Leasehold Improvements and all furnishings, fixtures, and
equipment therein, whether installed by Company, the City or by others,
including repainting or redecorating as necessary, and replacing or repairing
worn carpet, tile, fixtures or furnishings. All such maintenance and repairs shall
be of quality equal to the original in materials and workmanship, and all work,
including paint colors, shall be subject to the prior written approval of Director.
Company shall be responsible for such repairs to City -owned equipment up to
Seven Hundred Fifty dollars ($750) in cost, limited to two occurrences per
calendar year and capped at $1,500 per calendar year. City shall be responsible
for any repairs to City -owned equipment which exceeds Seven Hundred Fifty
dollars ($750) with the exception that any damage resulting from Company's or
its employee's or agent's abuse or neglect shall be the full responsibility of
Company.
(b) Company shall be responsible for transporting all trash to City designated trash
containers in a manner satisfactory to the Director.
(c) If City determines that maintenance of the Leased Premises is not satisfactory,
City shall so notify Company in writing. If said maintenance is not performed by
Company within fifteen (15) days after receipt of written notice, City or its agent
shall have the right to perform the maintenance therefor and Company agrees to
reimburse City promptly for the cost thereof, plus ten percent (10%) thereof for
administrative overhead.
(d) Upon execution of this Agreement, Company shall establish a preventive and
routine maintenance program, the provisions of which shall be subject to the
approval and periodic review by the Director. Company shall from time to time,
upon request, provide the Director a written schedule of Company's cleaning and
maintenance program.
(e) On or about the commencement of each calendar year, representatives of City
and Company shall tour the Leased Premises and jointly agree upon what, if
any, routine Refurbishment is required to maintain the Leased Premises in first-
class condition, and Company shall undertake such Refurbishment at its sole
cost and expense. If Company and City cannot jointly agree upon the type and
extent of Refurbishment, City may at its sole discretion determine the
Refurbishment required.
(f) Upon discovery, Company shall immediately give oral and written notice to City
of any hazardous or potentially hazardous conditions in the Leased Premises or
in the Terminal Building. Any hazardous or potentially hazardous condition in the
Leased Premises shall be removed and disposed of immediately in accordance
with local, state and federal regulations. At the direction of said Director,
Company shall close the Leased Premises until such hazardous or potentially
hazardous condition is removed.
(g) Company agrees to employ sufficient maintenance and janitorial personnel, and
provide necessary equipment, to keep the Leased Premises and all furniture,
furnishings, fixtures and equipment clean, neat, safe, sanitary and in good
working order and condition at all times.
(h) Company shall comply with all health and sanitary regulations adopted by all
applicable governing bodies and all rules and regulations promulgated by the
City. Company shall give access for inspection purposes to any duly authorized
representatives of such governing bodies and to the Director and Company shall
promptly give a copy of any reports to the Director.
SECTION 8
OPERATIONS OF LEASED PREMISES
Section 8.1 — Hours of Operation. Company shall actively operate its food, beverage
and gift shop operation and use its best efforts to accomplish a business -like operation
therein. The operation shall be open to serve the public Sunday through Friday with the
exception of Thanksgiving Day, Christmas Day, New Year's Day, July 4t" and Labor
Day, unless otherwise authorized in writing by City. In no event shall the hours of
operation be curtailed to an extent that the service contemplated under this Agreement
shall be diminished. Except as otherwise stated herein, the hours of service shall be
determined in light of changing public demands and airline operating schedules.
Company may advise the Director of Company's analysis of the optimum
arrangements, but the final determination shall be made by the Director based on an
analysis of necessary service to the public. No facilities shall be blocked off or closed
at any time during the approved hours of operation.
Section 8.2 — Delivery of Goods. Company shall arrange for the timely delivery of all
food products, goods, merchandise, and supplies, at such times, in such location(s),
and by such routes as determined by the Director and according to such procedures
that may be established from time to time by the Director and, in the case of deliveries
to secured areas, the Transportation Security Administration.
Section 8.3 Utilities. The cost of all utilities, excluding phone and data, used or
consumed in the Leased Premises shall be borne by the City.
Section 8.4 Personnel. All personnel employed by Company shall be neat, clean,
groomed and courteous at all times. Company shall employ sufficient trained personnel
to staff and meet the reasonable needs or demands of patrons. Personnel shall be
thoroughly qualified, familiar with the business, the products sold, courteous,
informative and helpful to the public.
(a) Removal of Employees. After receipt of written notice from City, Company shall
immediately remove any employee or other representative of Company from the
Airport who participates in improper or illegal acts on the Airport, who violates
Airport rules and regulations or any provision of this Agreement, or whose
continued presence on the Airport is, in the opinion of the Director, deemed not
to be in the best interests of City.
(b) Conduct of Suppliers, Others. Company shall not allow its agents, servants,
contractors, suppliers or employees to conduct business in a loud, noisy,
boisterous, offensive or objectionable manner. Company shall ensure that all
personnel treat all patrons equally and courteously.
(c) Lawful Working Age. All employees or other personnel of Company working on
City property shall be of lawful working age. Company shall comply with all
federal, state and local labor and employment laws, including laws and
regulations relating to the handling, sale, and serving of alcoholic beverages.
(d) Employee Appearance. Company shall ensure that its employees present a
neat, clean, and orderly appearance at all times.
(e) Security Background Checks. Employees of Company providing services in
secured areas of the Terminal Building must qualify for a security clearance,
submit to the required fingerprinting and background check, and obtain
appropriate security badges, at Company's expense, and otherwise comply with
security regulations that may be established by the City and the TSA from time to
time. Personnel who are refused security clearance shall not be permitted by
Company to perform work in the secured areas of the Airport.
(f) General Manager. Company shall select and appoint a general manager with
day-to-day responsibility for the food, beverage and gift shop concession. The
management employee shall be in complete charge of Company's operation at
the Airport and shall be a qualified and experienced manager vested with full
powers to conduct Company's operation hereunder. The management employee
shall be available during regular business hours; and at all times during his/her
absence, a designated representative of the Company shall be in charge and
available. City shall have the right to approve the appointment of Company's
general manager prior to assignment to the Airport.
(g) Uniforms. Uniforms should be worn by all employees, along with identification
name tags, at all times during hours of operation. All uniform options must be
pre -approved by the Director. Failure to wear pre -approved uniform options may
result in the removal of the employee from the facility.
Section 8.5 — Quality and Character of Service.
(a) Type of Operation. Company shall maintain and operate the concession
privileges granted hereunder in an orderly, proper, and first-class manner, which,
in the sole judgment of City, does not annoy, disturb, or offend others at the
Airport. Company shall ensure that each customer receives prompt, efficient
and courteous service. In conjunction with that requirement, Company shall
ensure that the operation has adequate staff to provide such service. Company
shall ensure that all locations are adequately staffed during normal peak
operating hours and during any special (e.g., charter flights, aircraft diversions,
public event, etc.) or emergency situation. Company shall conduct its business
in the manner described in the Company's Proposal, incorporated herein by
reference.
(b) Quality of Food. Company shall supply sufficient goods and product to fully
stock its Leased Premises. All foodstuff must be new, fresh, and of top quality.
Branded food and beverage units will, at a minimum, conform to the
requirements established by the franchisor or licensor.
(c) Pricing. The Company has covenanted in the Company's Proposal to charge
prices that are reasonable and comparable to prices charged for similar items in
similar facilities in the Wichita Falls area. The Airport reserves the right to
verify, approve or reject the prices and/or comparable used by the company.
Comparable facilities shall mean food, beverage and gift shop facilities offering
similar service, quality, and quantity of offerings, including shopping malls or
downtown locations. Comparable facilities may also include special event
venues, seasonal festivals, fairs and sporting events, or hotels and convention
centers.
(d) Director's Right to Object. The Director shall have the right to raise reasonable
objections to the condition of the Leased Premises, the quality and quantity of
food, beverage and gift shop items offered, the character of the service, the
hours of operation, the appearance and performance of service personnel, and
to require any such conditions or practices objectionable to said Director to be
remedied by Company.
(e) Services Nondiscriminatory. Company shall provide all services authorized
hereunder to its customers and patrons upon a fair, equal, and nondiscriminatory
basis and charge fair, reasonable and nondiscriminatory prices; provided,
however, that Company may make or give such reasonable and
nondiscriminatory discounts, rebates, or other similar price reductions as it may
desire to its employees.
(f) Replacements and Refunds. Company may, at all times during the term of this
Agreement, and without any additional charge to customers, replace any food or
beverage product by said customer to be unsatisfactory, or shall provide said
customer a full refund therefor.
(g) Credit/Debit Cards. At all times during the term of this Agreement, Company
shall accept as payment for goods and services at least two nationally
recognized credit/debit cards (e.g., American Express, Master Card, Visa, etc.).
(h) General Public Services. Company understands and agrees that its operation
at the Airport obligates it to render public services such as making change upon
request and without charge, giving directions, and reasonably assisting the
public, when requested.
(i) Additional Compliance. Company shall comply with all applicable
governmental laws, ordinances, and regulations in the conduct of its operations
under this Agreement.
Section 8.6 — Signs.
(a) Right to Install. Company shall have the right to install and operate upon or in
the Leased Premises, and at Company's sole cost and expense, signs
containing its name and representing its business. Company acknowledges
City's desire to maintain a high level of aesthetic quality in the Terminal Building
and in all concession facilities throughout the Terminal Building. Therefore,
Company covenants and agrees that, in the exercise of its privilege to install and
maintain appropriate signs on the Leased Premises, it will submit to City the size,
design, content, and intended location of each and every sign it proposes to
install on or within the Leased Premises, and that no signs of any type shall be
installed on or within the Leased Premises without the specific prior written
approval of Director as to the size, design, content, and location. Handwritten, or
hand lettered signs are prohibited. Notwithstanding any prior written approval,
upon written notice from the Director at any time during the term of this
Agreement, Company shall install, remove, or modify any signs which the
Director deems necessary or unnecessary for identification or information to the
public, passengers, or other Airport users. Failure to require removal of any sign
placed on or about the Leased Premises without written permission shall not
imply consent or limit the authority of the Director to require removal of any
unapproved sign.
(b) Signs and Fixtures Outside Premises. Company shall not place or install any
racks, stands, and trade fixtures, pedestal signs, or other displays of products
outside the boundaries of the Leased Premises without the express prior written
approval of the Director.
(c) Removal of Signs. Upon the expiration or sooner termination of this
Agreement, Company shall, if requested by the Director, remove any and all
identification signs and similar devices placed by Company on or in the Leased
Premises. In the event of the failure on the part of Company to so remove each
and every sign as requested by the Director, the Director may perform such work
and, upon demand, Company shall pay the cost thereof to City.
Section 8.7 - Security. Company acknowledges and accepts full responsibility for the
security and protection of the Leased Premises and any and all inventory, equipment,
and facilities now existing or hereafter placed on or installed in or upon its Leased
Premises, and for the prevention of unauthorized access to its facilities and expressly
agrees to comply with all rules and regulations of the Airport and of any and all other
governmental entities that now or may hereafter have jurisdiction over such security.
Company further expressly acknowledges and accepts full responsibility to maintain the
integrity of the airfield security from or through the leased premises to the airfield
operations area, and hereby agrees to fully comply with all Federal, State and local
laws, including, but not limited to 49CFR Part 1542, Airport Security, as amended from
time to time, and with all rules and regulations of Airport concerning security
procedures, as they presently exist or may be amended from time to time.
SECTION 9
LICENSES AND TAXES
Company covenants and agrees to obtain all proper licenses or permits for the
operation of its business hereunder, and to pay all taxes assessed or imposed by any
governmental authority upon the fees, rentals, and charges and upon any
improvements erected or installed thereon. Company shall, after notifying City of its
intention to do so, have the right to contest in good faith by all appropriate proceedings,
the amount, applicability, or validity of any such tax or assessment. In the event that
Company shall fail to pay any of the foregoing items required by this Section, City may
(but shall be under no obligation to) pay the same, and any amounts so advanced
therefor by City shall become an additional obligation of Company, which amounts,
together with interest thereon at the rate of one percent (1.0%) per month from the date
thereof, Company agrees to pay upon demand. The foregoing provision shall in no way
be construed as restricting City from contesting the legality of any such tax or other
governmental assessment.
Company shall be solely responsible for any training expenditure requirements for its
employees and management. Training expenditures include the cost of classes, travel,
hotels, and all costs associated with completing training requirements.
SECTION 10
LIENS, PAYMENTS AND PERFORMANCE BONDS
Construction Surety Bond. Company shall not allow any liens to attach to the Leased
Premises or its leasehold interest without the prior written approval of City. Prior to the
commencement of any construction, alteration, or repair hereunder which exceeds
twenty-five thousand dollars ($25,000) in cost, Company or its contractor shall furnish to
City, and without expense to City, a surety bond, naming City as co -obligee, issued by a
surety company licensed to transact business in the state of Texas and satisfactory to
and approved by City with Company's contractor or contractors as principals, in a sum
not less than one hundred percent (100%) of the total cost of contract or contracts for
the construction, alteration, or repair of the improvements and facilities mentioned
herein. Said bond shall guarantee the prompt payment of all persons supplying labor,
materials, provisions, supplies, and equipment used directly or indirectly by said
contractor, subcontractor(s) and suppliers in the prosecution of the work provided for in
said construction contract and shall protect City from any liability, losses or damages
arising therefrom.
Section 11
Damage or Destruction of Leased Premises in Terminal Building
Section 11.1 Partial Damage. If all or a portion of the Leased Premises is partially
damaged by fire, explosion, the elements, public enemy, or other casualty, but not
rendered untenantable, the same will be repaired with due diligence by City subject to
the limitations of Section 13.4; provided, however, that if the damage is caused by the
negligent act or omission of Company, its sub -Lessee, agents, or employees, to the
extent that such damage or destruction is not covered by insurance, Company shall be
responsible for reimbursing City for the costs and expenses incurred in such repair.
Section 11.2 Extensive Damage. If the damages referred to in Section 13.1 shall be
so extensive as to render the Leased Premises untenantable, but capable of being
repaired in thirty (30) days, the same shall be repaired with due diligence by City
subject to the limitations of Section 13.4; and, the compensation payable herein under
Section 5 shall abate from the time of such damage or destruction until such time as
the said Leased Premises is fully restored and certified by City's Building Inspectors as
ready for occupancy; provided, however, that if said damage is caused by the negligent
act or omission of Company, its sub -Lessee, agents or employees, said fees and
charges will not abate and, to the extent that such damage or destruction is not covered
by insurance, Company shall be responsible for reimbursing City for the costs and
expenses incurred in such repair.
Section 11.3 Complete Destruction. In the event the Leased Premises is completely
destroyed by fire, explosion, the elements, public enemy, or other casualty, or so
damaged that it is untenantable and cannot be replaced for more than thirty (30) days,
City shall undertake the repair, replacement, and reconstruction of said Leased
Premises; and compensation payable herein under Section 5 shall abate as of the time
of such damage or destruction until such time as the said Leased Premises is fully
restored and certified by City's Building Inspectors as ready for occupancy; provided,
however, that if said damage is caused by the negligent act or omission of Company, its
sub -Lessees, agents, or employees, said fees and charges will not abate, and to the
extent that such damage or destruction is not covered by insurance, Company shall be
responsible for reimbursing City for the costs and expenses incurred in said repair;
provided further, however, if within twelve (12) months after the time of such damage or
destruction said Leased Premises shall not have been repaired or reconstructed,
Company may cancel this Agreement in its entirety.
Section 11.4 Limits of City's Obligations. It is understood that, in the application of
the foregoing Sections 11. 1, 11.2, and 11.3, City's obligations shall be limited to repair or
reconstruction of the Terminal Building Leased Premises to the same extent and of equal
quality as obtained at the commencement of operations. Redecoration and replacement
of furniture, fixtures, equipment, and supplies provided by Company shall be the
responsibility of Company and any such redecoration and refurnishing/re-equipping shall
be of equivalent quality to that originally installed hereunder.
SECTION 12
FEDERAL REQUIREMENTS
(a) Company, its successors in interest and assigns, does hereby covenant and
agree that:
(i) No person on the grounds of race, color, national origin or disability shall be
excluded from participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities.
(ii) In the construction of any improvements on, over or under such land and the
furnishing of services thereon, no person on the grounds of race, color,
national origin or disability shall be excluded from participation in, denied the
benefits of, or otherwise be subjected to discrimination.
(iii) The Company shall use the premises in compliance with all other
requirements imposed by or pursuant to Title 49, Code of Federal
Regulations, Department of Transportation, Sub -title A, Part 21, Non-
discrimination in federally assisted programs of the Department of
Transportation -Effectuation of Title VI of the Civil Rights Act of 1964, and as
said Regulations may be amended.
(b) Company acknowledges and agrees that the provisions of all Federal -Aid Airport
Program Grant Agreements with the City that are applicable to the Airport are by
reference made a part hereof to the same extent as though copied herein at
length.
(c) Nothing herein shall be deemed to grant Company any exclusive right for the use
of any landing area or air navigation facility upon which Federal funds have been
expended, within the meaning of Section 308 of the Federal Aviation Act of
1958, as amended or supplemented.
(d) Company agrees to comply with the City's Disadvantaged Business Enterprise
programs insofar as such programs are applicable to Company's operations on
the Airport. Company acknowledges that the goals set forth in such programs
shall be subject to change without notice to Company.
(e) Public Benefit. Company agrees to operate the Leased Premises for the use
and benefit of the public and further agrees:
(i) To use reasonable efforts to furnish good, prompt and efficient services
adequate to meet all the demands for its services at the Airport;
(ii) To furnish said services on a fair, equal and not unjustly discriminatory
basis to all users thereof; and
(iii) to charge fair, reasonable and nondiscriminatory prices for each unit of
sale or service, provided that the Company may make reasonable
nondiscriminatory discounts, rebates or other similar types of price
reductions for volume purchases
SECTION 13
RIGHTS AND OBLIGATIONS OF CITY
Section 13.1 Right of Flight. Company understands that the City and United States
Air Force reserves the right of flight for the passage of aircraft above the surface of the
Leased Premises in accordance with the criteria of the Federal Aviation Administration
and that the grant and demise of the Leased Premises is subject to this reserved right
of flight, which such right shall include the right to cause in such air space such noise as
may be inherent to the operation of aircraft now known or hereafter used for the
navigation of or flight in the air. Further, Company understands and agrees that City
and United States Air Force reserves the right to use said air space for landing at,
taking off from and operating aircraft on and over the Airport.
Section 13.2 Operation, Maintenance and Expansion of Airport by the City.
(a) The City agrees to operate, maintain and keep in good repair the areas and
facilities at the Airport for the public and Company in accordance with the
practices of a reasonably prudent airport operator. The City agrees to use
reasonable efforts to keep the Airport free from obstructions and to do all things
reasonably necessary for the safe, convenient and proper use of the Airport by
those who are authorized to use the same. The City agrees to maintain and
operate the Airport in accordance with all applicable standards, rules and
regulations of the FAA.
(b) The City may expand and improve the Airport as it, in its sole judgment, may
deem necessary to provide required facilities in the interest of the public and the
City.
(c) The City shall have the right, but not the obligation, to maintain and keep in
repair the landing area of the Airport and all publicly -owned facilities of the
Airport, together with the right to direct and control all activities of Company in
this regard.
SECTION 14
LIABILITY, INDEMNIFICATION, INSURANCE AND CONDEMNATION
Section 14.1 Liability. The City shall not be liable for its failure to perform any of the
obligations under this Agreement or for any delay in the performance thereof, nor shall
any delay or failure be deemed a default by the City when such failure or delay is the
result of any cause beyond its reasonable control or jurisdiction. In any such case, a
promptly written notice will be given by the City to Company of the existence of such
cause and of readiness to resume performance upon the removal or termination thereof
provided, however, that in every instance where the operation of the Airport and its
facilities shall be wholly or partially suspended because of fires, storms, riots or acts of
God, the City will proceed with due diligence and insofar as it has funds available to do
so, to repair and restore the Airport and its facilities to such conditions as will permit its
use and enjoyment as a commercial airport.
Section 14.2 Indemnification.
A. Definitions
For the purpose of this section the following definitions apply:
"City" shall mean all officers, agents and employees of the City of Wichita Falls.
"Claims" shall mean all claims, liens, suits, demands, accusations, allegations,
assertions, complaints, petitions, proceedings and causes of action of every kind and
description brought for damages.
"Damages" shall mean each and every injury, wound, hurt, harm, fee, damage,
cost, expense, outlay, expenditure or loss of any and every nature, including but not
limited to:
(i) injury or damage to any property or right
(ii) injury, damage, or death to any person or entity
(iii) attorney's fees, witness fees, expert witness fees and expenses, and
(iv) all other costs and expenses of litigation
"Premise Defects" shall mean any defect, real or alleged, which now exists or
which may hereafter arise upon the premises.
"Company" includes the corporation, company, partnership, or other entity, its
owners, officers, and/or partners, and their agents, successors, and assigns.
"Company's employees" shall mean any employees, officers, agents,
subcontractors, licensee and invitees of Company.
"Proven" shall mean that a court of competent jurisdiction has entered a final
unappealable judgment on a claim adjudging an entity or person liable for a monetary
judgment.
"Sole negligence" shall mean negligence of a party that is unmixed with the fault
of any other person or entity.
B. Indemnity
The Company must indemnify, hold harmless, and defend the City from and
against liability for any claims arising out of the Company's work and activities
conducted in connection with this Contract.
The Company is an independent contractor and is not, with respect to its
acts or omissions, an agent or employee of the City.
Company must at all times exercise reasonable precautions on behalf of,
and be solely responsible for, the safety of Company's employees while in the
vicinity where the work is being done. The City is not liable or responsible for the
negligence or intentional acts or omissions of the Company or Company's
employees.
The City assumes no responsibility or liability for damages which are
directly or indirectly attributable to premise defects. Responsibility for all such
defects is expressly assumed by the Company.
The City and Company must provide the other prompt and timely notice of
any covered event which in any way affects or might affect the Company or City.
The City has the right to compromise and defend the same to the extent of its
own interests.
BOTH CITY AND COMPANY EXPRESSLY INTEND THIS CONTRACT'S
INDEMNITY PROVISION TO REQUIRE COMPANY TO INDEMNIFY AND PROTECT
THE CITY FROM THE CONSEQUENCES OF THE CITY'S OWN NEGLIGENCE
WHILE CITY IS PARTICIPATING IN THIS CONTRACT, WHERE THAT NEGLIGENCE
IS A CONCURRING CAUSE OF THE DAMAGES. THIS CONTRACT'S INDEMNITY
PROVISION DOES NOT APPLY TO ANY CLAIM WHERE DAMAGE IS PROVEN TO
RESULT FROM THE SOLE NEGLIGENCE OF THE CITY.
Section 14.3 Insurance.
(a) The Company shall provide and maintain, at its own expense, the following types
and amounts of insurance, during the term of this Lease:
TYPE
AMOUNT
(i) Comprehensive General (Public)
Combined single limit coverage (or
Liability — to include (but not limited to)
equivalent) for bodily injury and
the following:
property damage: $1 million on a per
occurrence basis
a) Premises/operations
b) Independent contractors
c) Personal injury liability
d) Contractual liability
e) Product/completed operations
liability
f) Liquor Liability
(ii) Worker's Compensation and
Statutory
Employer's Liability
$100,000 per occurrence
The preceding amounts notwithstanding, the City reserves the right to increase the
minimum amount required insurance to be effective 90 days after notice is sent to
the address provided in Section 17.2 (or subsequent address provided in writing to
the City, through its airport management designee.
(b) The procurement of said insurance shall not be construed to be a limitation upon
the Company's liability or as a full performance on its part of the indemnification
provisions of the Lease. The Company's obligations are, notwithstanding said
policy of insurance, for the full and total amount of any damage, injury or loss
caused by or attributable to its activities conducted at or upon the Leased
Premises.
(c) Before commencement of activities under this Lease, the Company shall furnish to
the City, certificates of insurance, plainly and clearly evidencing the required insur-
ance, and thereafter, new certificates prior to the expiration date of any prior
certificate. The Company understands that it is solely responsible to provide this
necessary information. If the City notifies Company, in writing, that a violation of
this article has occurred, Company will have 30 days to comply. If after thirty (30)
days such violation has not been cured, this shall be considered a cause for
cancellation of this lease, under the provisions of Section 15.
(d) Insurance required herein shall be issued by a company or companies of sound
and adequate financial responsibility and authorized to do business in the state
of Texas. All policies shall be subject to examination and approval by Legal
office for their adequacy as to form, content, form of protection, and providing
company.
(e) Insurance required by this Lease for the City, as additional insured, shall be
primary insurance and not contributing with any other insurance available to the
City, including any third party liability policy. The inclusion of the City as an
additional insured is not intended to, and shall not make the City a partner or
joint venturer with Company.
(f) The Company further agrees that with respect to the above -required insurance,
the City shall:
(i) Be named as additional insured/or an insured, as its interest may appear;
(ii) Be provided with a waiver of subrogation; and
(iii) Be provided within thirty (30) days advance notice, in writing, of
cancellation or material change.
(g) Said policies of insurance shall be performable in Wichita County, Texas, and shall
be construed in accordance with the laws of the state of Texas.
(h) Protection against loss by fire or other casualty to the equipment or property of
Company shall not be an obligation of the City.
Section 14.4 Insurance of the Leased Premises.
(a) Improvements. The Leased Premises shall be insured at all times during the
term of this Agreement by Company for fire risks under a policy issued by a
responsible insurance company. All such insurance policies on the Leased
Premises shall name as insured thereunder the City and Company. Said
insurance on a replacement cost basis, in an amount not less than fifty thousand
dollars ($50,000), covering loss or damage to any buildings and/or improvements
on the premises and premises contents owned or leased by the Company. The
City of Wichita Falls shall not be liable for any damages to fixtures, merchandise,
or other personal property of Company, regardless of the cause, and the
Company does hereby release the City from any such liability; and Company
shall release and relieve the City, and waive its entire claim of recovery for loss
or damage to property arising out of any of the perils whether included in
Company's property insurance, or not, regardless if the loss or damage is due to
negligence of the City or the Company, or their respective agents, employees,
guests, licensees, invitees, contractors or other persons.
(b) Reconstruct/Repair. In the event the Leased Premises or a substantial part
thereof is damaged or destroyed by an insured casualty, Company shall at its
sole cost reconstruct or repair the improvements and the insurance proceeds
shall be applied to the reconstruction or repair of the improvement, the Company
shall pay any deficiency between the cost of reconstructing or repairing the
improvements to its state prior to such loss and the proceeds. The facilities shall
be reconstructed or repaired, either in accordance with the original plans and
specifications or in accordance with the new or modified plans and specifications
jointly approved by the City and Company. Before any repair or reconstruction
under this paragraph, Company shall submit plans and specifications to the City
for approval.
SECTION 15
EVENTS OF DEFAULT AND REMEDIES
Section 15.1 Default by Company. The following shall be events of default as to the
Company under this Agreement:
(a) Failure by the Company to pay any rent and fees within thirty (30) days of the
date it receives written notice from the City that such rent is past due.
(b) Failure by the Company to observe and perform any covenant, condition or
agreement on its part to be performed other than as referred to in sub -section (a)
for a period of thirty (30) days after receipt of written notice from the City
specifying such failure and requesting that it be remedied.
(c) Abandonment or desertion of Leased Premises by the Company for any period
of time exceeding thirty (30) consecutive calendar days or filing of any lien
against the Leased Premises or Company's interest therein in violation of this
Agreement and shall remain unreleased for a period of sixty (60) days from the
date of such filing unless within said period the Company is contesting in good
faith the validity of such lien and while such lien is appropriately bonded.
(d) A receiver is appointed without Company's application or consent, in any action
or proceeding by or against Company and such action or proceeding is not
stayed or discharged within sixty (60) days after its commencement, or Company
is involuntarily made a party to any insolvency proceeding conducted pursuant to
the laws of any state or of a political subdivision of any state and such
proceeding is not stayed or discharged within sixty (60) days after its
commencement, or Company involuntarily becomes a debtor in any case
commenced under the provisions of the United States Bankruptcy Code, as
amended and such case is not stayed or discharged within sixty (60) days after
its commencement.
(e) The dissolution or liquidation of Company or the filing by Company of a voluntary
petition in bankruptcy or failure by the Company promptly to remove any
execution, garnishment or attachment of such consequence as will impair its
ability to carry on its operations at the Leased Premises.
Section 15.2 Remedies on Default. Whenever any event of default referred to in
Section 15.1 hereof shall have happened, the City may take any one or more of the
following remedial steps as against the Company:
(a) The City may re-enter and take possession of the Leased Premises of Company
without terminating this Agreement and sub -lease the interest of the Company to
any party or operate the same on behalf of the Company. In either case, holding
the Company liable for the difference, if any, between the rents and other
amounts payable by Company hereunder and the rents and other amounts
payable by such sub -leasing.
(b) After thirty (30) days' written notice to Company, the City may terminate this
Agreement, exclude the Company from possession of the Leased Premises and
shall use its best effort to lease Company's interest therein to another party for
the account of City holding Company liable for all rents and other amounts due
under this Agreement and not paid by such other party.
(c) The City may take whatever other action at law or in equity as may appear
necessary or desirable to collect the rent then due and thereafter to become due
from Company or to enforce performance and observance of any obligation,
agreement or covenant of the Company under this Agreement.
(d) If the City and the Company disagree with respect to Company's obligations to
pay money under this Agreement, Company may pay the amount under protest
and such payment shall not prejudice Company's right to recover the disputed
amount if it is determined that such payment was not due.
Section 15.3: Non -Exclusive Remedy. No remedy herein conferred upon or reserved
to the City is intended to be exclusive of any other available remedy or remedies but
each and every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Agreement.
Section 15.4: Legal Fees. In the event there should be a default under any of the
provisions of this Agreement and the City should determine that the services of an
attorney are required or the City incurs other expenses for the collection of rent or the
enforcement of performance or observance of any obligation or agreement on the part
of Company, the Company agrees that it will on demand therefor pay to the City the
reasonable, just and necessary fees of such legal and other reasonable incurred
expenses.
SECTION 16
ASSIGNMENTS, SUBLETTING, TERMINATION AND ENCUMBRANCES
Section 16.1 Assignment and Subletting
(a) Company covenants and agrees that it will not sell, convey, transfer or assign
this Agreement or any part thereof or any rights created thereby or sublet the
Leased Premises covered by this Lease or any part thereof without the prior
written consent of the Director provided, however, that Company shall have the
right to assign its interest hereunder or to sublet the Leased Premises to any
subsidiary, affiliate or successor company thereof upon the condition that the
Company hereunder shall remain liable for the full, faithful and complete
performance of this Agreement. Upon approval of the Director, Company may
sublet the Leased Premises subject to Company and Sub -Company remaining
liable for the full faithful and complete performance of this Lease both pre -
assignment and post -assignment. Such approval will consider the effect such
sale, conveyance, transfer or assignment will have on the continued
performance of successor company under this agreement and its response to
the request for proposal. Director may withhold written consent under this section
for any reason.
(b) If, without the prior written consent of the Director, the Company assigns, sells,
conveys, transfers or sublets in violation of Section (a) of this Section or if the
Leased Premises are occupied by anybody other than the Company, as provided
in this Lease, the City may collect rent from any assigns, sub -Company or
anyone who claims a right to this Agreement or who occupies the Leased
Premises and the City shall apply the net amount collected to the rental herein
reserved but no such collection shall be deemed a waiver by the City of the
covenants contained in subdivision (a) of this Section or an acceptance by the
City of any such assignee or sub -Company.
(c) Any assignment or transfer of this Agreement or any rights of Company
hereunder (except as otherwise permitted herein) whether it be a voluntary
assignment without the consent of Director or an assignment or transfer by
operation of law, shall be null and void and shall constitute a default on the part
of the Company.
Section 16.2 Termination by Company. If not in default in any of its obligations
hereunder, Company may at its option terminate this Agreement by giving the Director
thirty (30) days' written notice thereof if any of the following shall occur:
(a) The City shall fail to remedy any breach by it of any of the covenants and
agreements herein contained within thirty (30) days after receipt of a written
notice by the Company of the existence of such breach.
(b) To the extent within its reasonable control, the City fails, for a period of thirty (30)
days after receipt of a written notice by the Company to remove any or take the
reasonable steps to remove a condition of the Airport caused by the act or
omission of the City and such condition results in Company's inability to conduct
business operations at the Airport.
(c) The condemnation and taking by authority of eminent domain of the Leased
Premises or any part thereof that substantially renders unusable the operation by
Company of its authorized business at the Airport.
SECTION 17
MISCELLANEOUS
Section 17.1 Consents and Approvals
(a) With respect to the approvals herein required of the Company, Company shall
from time to time furnish to the City appropriate certifications setting forth the
officers or representatives of Company who are authorized to grant such
approvals and to bind the Company thereto.
(b) The City's Airport Director may give any consent or approval herein required of
the City unless otherwise provided.
(c) All consents and approvals required or permitted herein by either party shall be
given in writing.
Section 17.2 Notices All notices required or permitted to be given to the City or
Company shall be deemed sufficiently given if in writing and sent either by
registered mail or certified mail, postage prepaid, addressed as follows, or
to such other address or addresses as the City or Less
Com:
Director of Aviation,
Traffic & Transportation
Wichita Falls Regional Airport
2100 Seymour Highway
Wichita Falls, Texas 76301
Company:
Southern Girl Catering
1703'/2 WoodrowAvenue
Wichita Falls, Texas 76301
Section 17.3 Brokerage. The Company represents and warrants that no brokers have
been concerned on their behalf in the negotiation of this Agreement and that there are
no such brokers who are or may be entitled to be paid commissions in connection
therewith. Company shall hereby indemnify and save harmless the City of and from
any claim for commission or brokerage made by any such brokers when such claims
are based in whole or in part upon any acts or omissions by Company.
Section 17.4 Force Majeure. Neither the City nor Company shall be deemed in default
hereunder if either party is prevented from performing any of its obligations, other than
the payment of rentals, fees and charges hereunder, by reasons of strikes, boycotts,
labor disputes, embargoes, shortages of energy or material, acts of God, acts of the
public enemy, acts of superior governmental authority, weather conditions, floods, riots,
rebellion, acts of sabotage or any other circumstances for which it is not responsible or
which are not within its control.
Section 17.5 Entire Agreement. This Agreement constitutes the entire agreement
between the City and Company.
Section 17.6 Lease to Federal Government. During time of war or national
emergency, City shall have the right to lease the landing area or any part thereof the
leased premises to the United States Government for military use and if any such lease
is executed, the provisions of this Agreement insofar as they are inconsistent with the
provisions of the lease to the Government, shall be suspended but such suspension
shall not extend the term of this Agreement, without written approval by the City.
Section 17.7 Place of Performance; Laws Governing Venue. This Agreement shall
be performable and enforceable in Wichita County, Texas, and shall be construed in
accordance with the laws of the State of Texas. Venue for any cause of action shall be
Wichita County, Texas.
Section 17.8 Severability. Should any part of this Lease be held to be invalid, such
invalidity shall not affect the balance of that provision or the remaining provisions of this
Lease, which shall remain in full force and effect.
(THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY)
IN WITNESS WHEREOF this Agreement has been entered into and is effective as of
the Effective Date and has been executed in quadruplicate original counterparts by the
respective officers of the parties hereto as of the dates noted below.
City of Wichita Falls, a Municipal Corporation
Darron Leiker, City Manager
Date:
I.\»Gto] O'2193
Kinley Hegglund
City Attorney
ATTEST:
City Clerk
Southern Girl Catering
Tamitha Holloway, Proprietor
Date:
ATTEST:
e5tmtrang
Continental breakfast Choices for early morning flyers(5am)
('rice Range 2.0044.95)
Pastries, Muffins, Yogurt Parfait
Coffee
Bottled Water
Breakfa t( Monday -Friday 7arn-10:30atn) (Price Range 5.95-
8.5)
Breakfast Burrito( Eggs, Sausage, Potato, and Cheese)
Traditional Breakfast (2 Eggs any style, Bacon or Sausage,
Home fine White or Wheat Test)
Avocado Toast(2 Egg whites any style, 2 Slices of Beef Steak
Tomato)
Avocado Toast
Fresh Fruit, Yogurt, Homemade Granola Parfait
L 11 p tai (Price Range from $7.95412,95 for all
Lunch Menu Items.)
Burgers & Sandwiches
All Burgers & Sandwiches Served / Seasoned Fries, Spicy
Ketchup or Srivacha Ranch
All Burgers Served open faced /green leaf lettuce, tomato, reel
onions serval on a Bfi,oche bean
Traditional American style Burger
Traditional American style Burgcr w/Cheesc
Chicken Sandwich Fried or Crilledd(wl Monterey Jack cheese,
honey mustard or tomato jam, green leaf lettuce, tomato, red
onions served on a Brioche bun)
Italian Sausage Sandwich{mild Italian sausage wlsaLdeec
onions, peppers, homemade mariana sauce topped with
mozzarella cheese served on a Italian style hoagie}
Palled Fork Sandwich (w/spicy slaw on a sesame seed bun)
Topping for Hurgen.
Sauteed Mushroom
'Trilled ODivns
Bacon
Blue Cheese Crumbles
Traditional Buffalo 'in s(Bnne in
Mild
Hot
Spicy BB
f,igssic Favorites
Chicken Tenders Served w� Honey bustard Dipping S auce
Seasoned Fries
Coconut Shrimp / Thai Chili Sauce Served with Season Fries
Chicken Spaghetti .served wisalad and Garlic Toast
Pulled Pork Muffed Baked Potato(topped with Sharp Cheddar
Cheese, Sour Cream, Chives & BBQ Sauce)
Fried Chicken Salad
Grilled Chicken Caesar Salad
Cobb Salad
lids 1Vlenu $5.95
Served with Fries, Fresh Carrots, or Apple Slices
Chicken Tendm
Grilled Cheese
Cheese Picea
Beyerrre
(Price Range $1.5042.25)
Bottled Water
Coffee
Sada
Weekend Brunch (9am to Item Saturday only)
(Price range from $8.95 to $12.95)
Chicken & Wattles
Fried Chicken served on a traditional or Red Velvel Belgian
Waffle w/warm Maple Symp
Chicken Fried Chicken
Fried Chicken served with gravy, 2 eggs any style, Bash Brown
Casserole, White or Wheat Toast
Shrimp & Grits
Sauteed Shrimp Served over Grits, w2 Eggs any style & White
or Wheat Toast
County Breakfast
2 Eggs any style, Bacon or Sausage, Hashbrown Casserole,
Cinnamon Raisin Toast
Sausage Biscuits & Gravy & 2 Eggs any style
Breakfast Bursito( Eggs, Sausage, Potato, and Cheese)
Topped with Queen and Salsa on the side
Breakfast Omelet
(Bacon of Sausage, mushrooms, peppers, onions & cheese)
Light & Filling Breakfast
2 Egg Whites, Turkey Bacon or Sausage, Sliced Beef Steak
Tornow and Sliced Avocado
Acy-r-WeE
Mimosa Bar; S3 per Mimosa
Champagne
Orange, Mango Orange, Rasp/Cranherry Juices
Red Draw Bar$3 per Red Draw
Beer
Zing Zang Juice Regular or Spicy