Res 098-2022 WF Regional Airport Food & Beverage to Brandy Belk dba Suga B's 08/16/2022 Resolution No. 98-2022
Resolution authorizing the City Manager to execute an agreement with
Brandy Belk, a sole proprietorship, dba Suga B's at Wichita Falls
Regional Airport for Food, Beverage and Gift Shop Concessions at
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, Suga B's 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 Brandy Belk, with changes thereto, in a form approved by the
City Attorney.
PASSED AND APPROVED this the 16th day of August, 2022.
/rer
MAYOR
ATTEST:
City Clerk
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 Brandy Belk,
d.b.a. Suga B's Wichita Falls Regional Airport, ("Lessee") an individual 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, Lessee 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 Lessee 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
Lessee the right to operate the food, beverage and gift shop concession at the Airport for
the convenience of the users of the Airport;
NOW, THEREFORE, for and in consideration of the premises and mutual covenants
contained herein, City and Lessee 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 Lessee, 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 Lessee'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.
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(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 Lessee, and shall be the effective date of
the agreement.
(f) Lessee shall mean either Brandy Belk and/or Suga B's.
(g) 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.
(h) 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.
(i) DOT means the United States Department of Transportation or any department of
agency succeeding to its jurisdiction and function.
(j) 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.
(k) FAA means the Federal Aviation Administration of the United States Department
of Transportation, or any department or agency succeeding to its jurisdiction or
function.
(I) 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.
(m) Finishes means those improvements to the Leased Premises installed by Lessee,
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.
(n) Fiscal Year shall mean City's fiscal year meaning the twelve (12) month period
commencing October 1st and extending to September 30th of the following year.
(o) Governmental Requirements means all federal, state and local laws, rules,
regulations, security plans, and rulings, including all amendments, now in effect or
hereinafter enacted.
(p) Expendables shall mean commodities, supplies, glassware, and consumable
items.
(q) 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.
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(r) 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.
(s) Minimum Annual Guarantee if applicable, means the annual minimum guarantee
payable monthly by Lessee 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.
(t) Personal Property shall mean all movable property of the Lessee not directly
related to the restaurant operations of the privileges granted hereunder, including
office furniture, office equipment, and office supplies.
(u) 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.
(v) 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.
(w) Request for Proposal (RFP) means City's Request for Proposal for Food,
Beverage, and Gift Shop Concession for the Wichita Falls Regional Airport.
(x) 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.
(y) 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.
(z) 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;
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(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.
(I) 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 August 19. 2022, and shall continue unless sooner terminated in
accordance with this Agreement until August 19, 2022.
Section 2.2 Holding Over. To provide continuous service to the air traveler and public,
Lessee 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 upto a ninety (90) dayperiod, as so requested by City, after termination of this
o 4
Agreement by expiration of the Term, cancellation or default, to give a new Lessee
n e operation.
sufficient time to be chosen and comma Upon the termination of this c p
Agreement, through the passage of time or otherwise, Lessee 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 Lessee.
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In the event that Lessee, 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
Lessee 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 Lessee by giving thirty (30) days' written notice of said termination
to the other party at any time. Lessee 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 Lessee 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 Lessee'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, Lessee 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 Lessee'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. Lessee 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.
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In no event will Lessee 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, Lessee and City shall enter into an amendment of this Agreement
reflecting the results of such remeasurement.
Section 3.4 Changes to Airport. Lessee 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
Lessee regarding the design, construction, pedestrian traffic, or views of the Airport or the
Leased Premises. Without limiting the generality of the foregoing, Lessee 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 Lessee'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 Lessee's business, Lessee acknowledges that such activity
may have some effect on the Lessee's operations located at the Airport, and Lessee 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 Lessee, and without
effecting Lessee'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, Lessee
hereby waives all claims against City and releases City from all losses that Lessee suffers
or incurs arising out of or in connection with any changes to the Airport or any portion of
the Airport and Lessee further agrees that Lessee 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,
PAGE 6 OF 33 PAGES
escalators, and
parking areas a d facilities, restrooms, pedestrian entrances, driveways,
loading zones and roadways. City may, in its sole discretion, and without any liability to
Lessee (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 9r n is to
Lessee, 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.
Lessee 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. Lessee 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. Lessee may also
provide catering services to the general public from the leased premises. Lessee
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, Lessee 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. Lessee 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 Lessee vacate without cleaning or repairing leasehold to the satisfaction of
the Director.
(b) Approval of Menus. Lessee shall not conduct any other business, or sell any
type of food and beverage products unless specifically authorized to do so by the
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Director. Lessee 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.
(c) Development of Food, Beverage and Gift Shop Business. At the location(s)
indicated herein, Lessee shall provide food, beverage and gift shop services every
day of the term hereof, without exception. The Lessee 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 Lessee in other public areas of the facility. Lessee 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 Lessee may operate non-airport catering, and that all revenues
deriving there from will be included in gross revenues in accordance with Section
5. Lessee shall take all reasonable measures, in every proper manner, to develop,
maintain and increase the business conducted by it under this Agreement. Lessee
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. Lessee 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 Lessee and any
other Airport tenant as to the services to be offered or products to be sold, Lessee
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. Lessee agrees that it shall be bound by the decision of the Director.
(f) No Other Uses. Lessee 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
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applicable present or future law, ordinance, rule or regulation of any governmental
authority, agency, department or officer thereof.
(g) Purchasing. The Lessee shall have the right to purchase Personal Property or
services, materials and supplies used by Lessee from any person or Lessee of
Lessee's choice. The Lessee shall have the right to make agreements with any
person or Lessee of Lessee's choice for services to be performed for Lessee which
are incidental to the conduct of Lessee's activities. It is understood that if Lessee'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 Lessee 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 Lessee 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, Lessee 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 Lessee may impose with respect to its Leased
Premises, City hereby grants to Lessee, 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 Lessee
that Lessee 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 Lessee's use pursuant to this Agreement or otherwise, either
temporarily or permanently; provided that reasonable notice to Lessee 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
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and such action shall in no way alter or affect any of Lessee's obligations under
this Agreement
(k) Lessee 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.
(I) Pest Control. Lessee is responsible for maintaining monthly scheduled licensed
pest control.
(m) Grease Trap. Lessee 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 Lessee, (b) to give City any interest in the business of Lessee, or (c) to grant to
Lessee 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
Lessee shall pay to the City a percentage of gross receipts, paid monthly, for the
full term of the Agreement, as follows:
• 0% for first year of lease, beginning on the original lease date
• 2% for second year of lease, beginning on the second year of the original lease
date
• 3% for third year of lease, beginning on the third year of the original lease date
• 4% for the fourth and remaining years of the lease, beginning on the fourth year of
the original lease date
(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 Lessee 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 Lessee, at Lessee'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
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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 Lessee, 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;
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,
Lessee 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
Lessee. Said statement shall include, at a minimum, a breakdown of Lessee'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 Lessee of
other information pertaining to the Gross Receipts hereunder, and Lessee 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 Lessee 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 Rent Abatement (Option)
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The City agrees to abate all fees payable under 5.1(a) for the first twelve (12) months of
this Agreement. At the written request of the Le
ssee, the City may also waive all or
portions of fees for the second twelve (12) months of this Agreement, if so approved by
the City Council.
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. Lessee 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 Lessee, 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 Lessee
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 Lessee
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 Lessee 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 Lessee
not permanently affixed to Leased Premises shall remain the property of Lessee. Should
Lessee fail within twenty (20) business days following the termination of this Agreement
to remove its Trade Fixtures, signs and other Personal Property of Lessee not
permanently affixed to Leased Premises, then at the option of City, title to same shall vest
in City at no cost to City.
PAGE 12 OF 33 PAGES
Lessee shall not remove or demolish, in whole or in part, any improvements upon Leased
Premises without the prior written consent of the Director. Lessee understands and
agrees that consent may be conditioned upon the obligation of Lessee to replace the
same by an improvement specified in such consent at Lessee'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 Lessee in the City
operated "Fly Wichita Falls" website, along with a link to the Lessee's website, as
long as the Director finds the Lessee'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 Lessee's Obligations in Terminal Building.
(a) Except for structural maintenance of the Terminal Building, as provided in
Section 7.1, Lessee 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. Lessee shall maintain and repair all
Leasehold Improvements and all furnishings, fixtures, and equipment therein,
whether installed by Lessee, 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. Lessee shall be responsible,
beginning in the second year of the lease agreement, for such repairs to City-
owned equipment up to Five Hundred dollars ($500) in cost, limited to two
occurrences per calendar year and capped at $1,000 per calendar year. City shall
be responsible for any repairs to City-owned equipment which exceeds Five
Hundred dollars ($500) with the exception that any damage resulting from
Lessee's or its employee's or agent's abuse or neglect shall be the full
responsibility of Lessee.
(b) Lessee 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 Lessee in writing. If said maintenance is not performed by
Lessee within fifteen (15) days after receipt of written notice, City or its agent shall
PAGE 13 OF 33 PAGES
have the right to perform the maintenance therefor and Lessee agrees to
reimburse City promptly for the cost thereof, plus ten percent (10%) thereof for
administrative overhead.
(d) Upon execution of this Agreement, Lessee shall establish a preventive and routine
maintenance program, the provisions of which shall be subject to the approval and
periodic review by the Director. Lessee shall from time to time, upon request,
provide the Director a written schedule of Lessee's cleaning and maintenance
program.
(e) On or about the commencement of each calendar year, representatives of City and
Lessee 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 Lessee shall undertake such Refurbishment at its sole cost and expense. If
Lessee 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, Lessee 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, Lessee
shall close the Leased Premises until such hazardous or potentially hazardous
condition is removed.
(g) Lessee 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) Lessee shall comply with all health and sanitary regulations adopted by all
applicable governing bodies and all rules and regulations promulgated by the City.
Lessee shall give access for inspection purposes to any duly authorized
representatives of such governing bodies and to the Director and Lessee shall
promptly give a copy of any reports to the Director.
SECTION 8
OPERATIONS OF LEASED PREMISES
Section 8.1 — Hours of Operation. Lessee 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 on a schedule approved by the
Director, with the exception of Thanksgiving Day, Christmas Day, New Year's Day, July
4th 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
PAGE 14 OF 33 PAGES
shall be determined in light of changing public demands and airline operating schedules.
Lessee may advise the Director of Lessee'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. Lessee 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 Lessee shall be neat, clean, groomed
and courteous at all times. Lessee 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, Lessee shall
immediately remove any employee or other representative of Lessee 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. Lessee shall not allow its agents, servants,
contractors, suppliers or employees to conduct business in a loud, noisy,
boisterous, offensive or objectionable manner. Lessee shall ensure that all
personnel treat all patrons equally and courteously.
(c) Lawful Working Age. All employees or other personnel of Lessee working on
City property shall be of lawful working age. Lessee 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. Lessee shall ensure that its employees present a neat,
clean, and orderly appearance at all times.
(e) Security Background Checks. Employees of Lessee 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 Lessee's expense, and otherwise comply with security
regulations that may be established by the City and the TSA from time to time.
PAGE 15 OF 33 PAGES
Personnel who are refused security clearance shall not be permitted by Lessee to
perform work in the secured areas of the Airport.
(f) General Manager. Lessee 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 Lessee's operation at the
Airport and shall be a qualified and experienced manager vested with full powers
to conduct Lessee'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 Lessee shall be in charge and available. City
shall have the right to approve the appointment of Lessee'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) lype of Operation. Lessee shall maintain and operate the food, beverage, and
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. Lessee shall ensure that each customer receives prompt,
efficient and courteous service. In conjunction with that requirement, Lessee shall
ensure that the operation has adequate staff to provide such service. Lessee 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. Lessee shall conduct its business in the manner described
in the Lessee's Proposal, incorporated herein by reference.
(b) Quality of Food. Lessee 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 Lessee has covenanted in the Lessee'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 Lessee. 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.
PAGE 16 OF 33 PAGES
(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
Lessee.
(e) Services Nondiscriminatory. Lessee 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 Lessee 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. Lessee 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, Lessee 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. Lessee 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. Lessee 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. Lessee shall have the right to install and operate upon or in the
Leased Premises, and at Lessee's sole cost and expense, signs containing its
name and representing its business. Lessee 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, Lessee
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
PAGE 17 OF 33 PAGES
from the Director at any time during the term of this Agreement, Lessee 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. Lessee 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,
Lessee shall, if requested by the Director, remove any and all identification signs
and similar devices placed by Lessee on or in the Leased Premises. In the event
of the failure on the part of Lessee to so remove each and every sign as requested
by the Director, the Director may perform such work and, upon demand, Lessee
shall pay the cost thereof to City.
Section 8.7 - Security. Lessee 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.
Lessee 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
Lessee 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. Lessee 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 Lessee 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 Lessee, which amounts, together with interest thereon at the rate of one
percent (1.0%) per month from the date thereof, Lessee agrees to pay upon demand.
PAGE 18 OF 33 PAGES
The foregoing provision shall in no way be construed as restricting City from contesting
the legality of any such tax or other governmental assessment.
Lessee 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. Lessee 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, Lessee or its contractor shall furnish to
City, and without expense to City, a surety bond, naming City as co-obligee, issued by a
surety Lessee licensed to transact business in the state of Texas and satisfactory to and
approved by City with Lessee'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
h trf eerom.
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 negli-
gent act or omission of Lessee, its sub-Lessee, agents, or employees, to the extent that
such damage or destruction is not covered by insurance, Lessee 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 Lessee, 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,
Lessee shall be responsible for reimbursing City for the costs and expenses incurred in
such repair.
PAGE 19 OF 33 PAGES
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 Lessee, 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, Lessee 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, Lessee 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 Lessee shall be the responsibility
of Lessee and any such redecoration and refurnishing/re-equipping shall be of equivalent
quality to that originally installed hereunder.
SECTION 12
FEDERAL REQUIREMENTS
(a) Lessee, 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 Lessee 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) Lessee 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.
PAGE 20 OF 33 PAGES
(c) Nothing herein shall be deemed to grant Lessee 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) Lessee agrees to comply with the City's Disadvantaged Business Enterprise
programs insofar as such programs are applicable to Lessee's operations on the
Airport. Lessee acknowledges that the goals set forth in such programs shall be
subject to change without notice to Lessee.
(e) Public Benefit. Lessee 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 Lessee 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. Lessee 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, Lessee 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 Lessee 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
PAGE 21 OF 33 PAGES
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 Lessee 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 Lessee 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.
PAGE 22 OF 33 PAGES
"Lessee" includes the corporation, Lessee, partnership, or other entity, its owners,
officers, and/or partners, and their agents, successors, and assigns.
"Lessee's employees" shall mean any employees, officers, agents,
subcontractors, licensee and invitees of Lessee.
"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 Lessee must indemnify, hold harmless, and defend the City from and
against liability for any claims arising out of the Lessee's work and activities
conducted in connection with this Contract.
The Lessee is an independent contractor and is not, with respect to its acts
or omissions, an agent or employee of the City.
Lessee must at all times exercise reasonable precautions on behalf of, and
be solely responsible for, the safety of Lessee'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 Lessee or Lessee'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 Lessee.
The City and Lessee must provide the other prompt and timely notice of any
covered event which in any way affects or might affect the Lessee or City. The City
has the right to compromise and defend the same to the extent of its own interests.
BOTH CITY AND LESSEE EXPRESSLY INTEND THIS CONTRACT'S
INDEMNITY PROVISION TO REQUIRE LESSEE 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 Lessee shall provide and maintain, at its own expense, the following types
and amounts of insurance, during the term of this Lease:
PAGE 23 OF 33 PAGES
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 Lessee's liability or as a full performance on its part of the indemnification
provisions of the Lease. The Lessee'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 Lessee shall furnish to the
City, certificates of insurance, plainly and clearly evidencing the required insurance,
and thereafter, new certificates prior to the expiration date of any prior certificate. The
Lessee understands that it is solely responsible to provide this necessary information.
If the City notifies Lessee, in writing, that a violation of this article has occurred,
Lessee 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 Lessee 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 Lessee.
PAGE 24 OF 33 PAGES
(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 Lessee.
(f) The Lessee 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
Lessee 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 Lessee for fire risks under a policy issued by a responsible
insurance Lessee. All such insurance policies on the Leased Premises shall name
as insured thereunder the City and Lessee. Said insurance on a replacement cost
basis, in an amount not less than one-hundred thousand dollars ($100,000),
covering loss or damage to any buildings and/or improvements on the premises
and premises contents owned or leased by the Lessee. The City of Wichita Falls
shall not be liable for any damages to fixtures, merchandise, or other personal
property of Lessee, regardless of the cause, and the Lessee does hereby release
the City from any such liability; and Lessee 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 Lessee's property insurance, or not, regardless if
the loss or damage is due to negligence of the City or the Lessee, or their
respective agents, employees, guests, licensees, invitees, contractors or other
persons.
PAGE 25 OF 33 PAGES
(b) Reconstruct/Repair. In the event the Leased Premises or a substantial part
thereof is damaged or destroyed by an insured casualty, Lessee 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 Lessee 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 Lessee. Before any repair or reconstruction under this paragraph,
Lessee shall submit plans and specifications to the City for approval.
SECTION 15
EVENTS OF DEFAULT AND REMEDIES
Section 15.1 Default by Lessee. The following shall be events of default as to the
Lessee under this Agreement:
(a) Failure by the Lessee 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 Lessee 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 Lessee for any period of
time exceeding thirty (30) consecutive calendar days or filing of any lien against
the Leased Premises or Lessee'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 Lessee is contesting in good faith the validity of
such lien and while such lien is appropriately bonded.
(d) A receiver is appointed without Lessee's application or consent, in any action or
proceeding by or against Lessee and such action or proceeding is not stayed or
discharged within sixty (60) days after its commencement, or Lessee 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 Lessee
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 Lessee or the filing by Lessee of a voluntary
petition in bankruptcy or failure by the Lessee 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.
PAGE 26 OF 33 PAGES
(f) The filing by Lessee of litigation against the City prior to end of the lease.
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 Lessee:
(a) The City may re-enter and take possession of the Leased Premises of Lessee
without terminating this Agreement and sub-lease the interest of the Lessee to any
party or operate the same on behalf of the Lessee. In either case, holding the
Lessee liable for the difference, if any, between the rents and other amounts
payable by Lessee hereunder and the rents and other amounts payable by such
sub-leasing.
(b) After thirty (30) days' written notice to Lessee, the City may terminate this
Agreement, exclude the Lessee from possession of the Leased Premises and shall
use its best effort to lease Lessee's interest therein to another party for the account
of City holding Lessee 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 Lessee or to enforce performance and observance of any obligation,
agreement or covenant of the Lessee under this Agreement.
(d) If the City and the Lessee disagree with respect to Lessee's obligations to pay
money under this Agreement, Lessee may pay the amount under protest and such
payment shall not prejudice Lessee'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 16
ASSIGNMENTS, SUBLETTING, TERMINATION AND ENCUMBRANCES
Section 16.1 Assignment and Subletting
(a) Lessee 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 Lessee shall have the right to
assign its interest hereunder or to sublet the Leased Premises to any subsidiary,
affiliate or successor Lessee thereof upon the condition that the Lessee hereunder
PAGE 27 OF 33 PAGES
shall remain liable for the full, faithful and complete performance of this Agreement.
Upon approval of the Director, Lessee may sublet the Leased Premises subject to
Lessee and Sub-Lessee 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 Lessee 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 Lessee 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 Lessee, as provided in
this Lease, the City may collect rent from any assigns, sub-Lessee 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-Lessee.
(c) Any assignment or transfer of this Agreement or any rights of Lessee 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 Lessee.
Section 16.2 Termination by Lessee. If not in default in any of its obligations
hereunder, Lessee 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 Lessee 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 Lessee 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 Lessee'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
Lessee of its authorized business at the Airport.
SECTION 17
MISCELLANEOUS
Section 17.1 Consents and Approvals
PAGE 28 OF 33 PAGES
(a) With respect to the approvals herein required of the Lessee, Lessee shall from
time to time furnish to the City appropriate certifications setting forth the officers or
representatives of Lessee who are authorized to grant such approvals and to bind
the Lessee 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 Lessee
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
City: Lessee:
Director of Aviation, Brandy Belk d.b.a Suga B's
Traffic & Transportation 3403 Grant St.
Wichita Falls Regional Airport Wichita Falls, TX 76308
2100 Seymour Highway
Wichita Falls, Texas 76301
Section 17.3 Brokerage. The Lessee 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.
Lessee 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 Lessee.
Section 17.4 Force Majeure. Neither the City nor Lessee 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 Lessee.
PAGE 29 OF 33 PAGES
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.
Section 18 Legal Fees. If any action at law or in equity is necessary to enforce this
agreement, each party agrees to pay its own attorneys' fees and will not seek to recover
its own attorneys' fees from the other party. Lessee understands that Texas Local
Government Code subchapter I, § 271.153(a)(3) provides that the total amount of money
awarded in an adjudication brought against a governmental entity for breach of a contract
includes attorneys' fees. Both Lessee and City expressly waive all statutory and other
rights to recover attorneys' fees pursuant to in § 271.153(a)(3) and all other law.
Section 19 Contractual Damages Limitation. City shall not liable for consequential
damages, exemplary damages, or damages for unabsorbed home office overhead.
Section 20 Governmental Function. All parties agree that this contract is one that
pertains solely to a governmental function taken by or on behalf of the City. All parties
expressly agree that the City is not engaging in any propriety functions.
Section 21 Immunity Retained. Lessee understands this is not an agreement to provide
goods or services to City under Tex. Local Gov't Code §271.151. The purpose of this
agreement is to provide goods or services to patrons of the airport. As such, Parties
understand and expressly agree this Agreement does not waive immunity against City
under Tex. Local Gov't Code §271.152.
In the event it is determined by a court of competent jurisdiction this is an agreement
where a good or service is provided by Lessee to City, Lessee expressly waives any and
all rights granted to Tenant under Tex. Local Gov't Code §271.151-154 such that City
retains its governmental immunity from suit.
(THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY)
PAGE 30 OF 33 PAGES
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 Brandy Belk .b.a. Suga B's
By: / �/1 i. �. By:
Darrenk/ei , City N�anager
Date: 4 2- 2 2- Date: ' OQ •
ATTEST: ATTEST:
Vaxxit)' Rabilvvry)--/
City tIerk 0
Approved as to form:
""p Attornri
PAGE 31 OF 33 PAGES
Exhibit A
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PAGE 32 of 33 PAGES
Exhibit B
4 . s� 's
�4 5:r , BRANDY BELK
.r ,3i ' y OWNER
...e•
( ft-
Breakfast
Burritos
• Eggs,cheese and choice of Parfait
protein Vanilla Yogurt,
Bacon or sausage or turkey Homemade
sausage....56 Granola,Choice of
• Veggie Fruit,some may be
SS seasonal:Peaches,
Chia Cup Pineapple,
• Chia Seeds,Coconut Milk,and Blueberries or
Honey Strawberries
Ss Ss
• Cocoa for Chocolate,topped • Almond Joy:Vanilla
with Coconut,Fruit or Granola Yogurt,Coconut,
57 Chocolate,Almond
Granola...............
• Snickers:Vanilla
BENTO BOWLS Yogurt,Chocolate,
Caramel,Peanut
Granola...............
Mediterranean Bento $6 .......................$8
• Hummus,Cherry Tomes,Olives
Grapes and Pita
American Bento $`
• Crackers,Turkey,Cheese, Tex Mex
Carrots or Celery and Ranch Bento $6
• Corn Chips or
Tortilla Chips,Pico,
BOLD SALADS Bell Pepper Strips.
Cheese and
$7 Pineapple
PAGE 33 of 33
add protein Chicken $3 Nortic
Shrimp $5 Bento $8
.50
Hard Boiled Egg,Cucumber,
Kale Salad Smoked Salmon Strips,and
• Broccoli,Cabbage,Brussel Wasa Crackers
Sprouts,Kate,Dried
Cranberries,Pumpkin Seeds,
and Poppy Seed Dressing
• Add Protein.......Chicken
$3 .Shrimp$5
Southwest Salad
• Romaine Lettuce,Carrots,Corn,
Crunchy Salsa Sticks,Cheese
and Southwest Ranch
Mediterranean Salad
• Salad Greens,Cauliflower,Sun-
dried Tomatoes,Olives,
Sunflower Seeds and Lemon
Tahini Dressing
Caesar Salad
• Romaine Lettuce.Shredded
Parmesan Cheese,Garlic
Croutons and Creamy Caesar
Dressing
Asian Salad
• Green Cabbage,Carrots,Celery,
Sliced Almonds,Green Onion,
Cilantro,Wonton Strips,and e
Asian Sesame Dressing
6
Deviled Eggs Sold in Pairs
for$2.50
Avocado
• Avocado,Cilantro,Lime,Garlic
and Jalapeno Peppers
Bacon
• Mayo,Dijon,Chives,Bacon and
Cayenne
Jalapeno
• Mayo,Cream Cheese,Jalapeno
Peppers and Cheddar Cheese
Blue Cheese
• Mayo,Not Sauce,Blue Cheese,
Celery and Taco Seasoning
Smoked BBQ
• Mayo,BBQ Sauce,Red Onion,
Cheddar Cheese and Cilantro
Sandwiches $1O-$13
Honey Cristo
• Fried chicken breasts,
melted provolone
cheese,thinly sliced
honey ham on artisan
bread dipped in funnel
cake batter and fried to
perfection.Drizzled with
honey
There will be a
Chef's delight
on the menu
daily. Suga B's
will have
signature
desserts,
drinks, &
meals. All
signature
items will
contain the
love language
of bees,
Honey.