HomeMy WebLinkAboutTAILWIND AGREEMENT FOR THE LEASE AND OPERATION OF RETAIL FOOD AND BEVERAGE CONCESSIONS FOR AUGUSTA REGIONAL AIRPORT AGREEMENT FOR THE LEASE
AND
OPERATION OF RETAIL, FOOD AND
BEVERAGE CONCESSIONS
BETWEEN
TAILWIND AUGUSTA, LLC
AND
AUGUSTA, GEORGIA
FOR
THE AUGUSTA REGIONAL AIRPORT
AUGUSTA, GEORGIA
Tailwinds Augusta, LLC Concessions Agreement 1
Thi oncessions Agreement (the "Agreement") is entered into effective this
day of � , 2011 (the "Effective Date"), between Augusta, Georgia
(County or City") for the Augusta Regional Airport (Airport) and Tailwind Augusta,
LLC, a limited liability company organized and existing under the laws of the State of
Georgia ("Concessionaire") who agree as follows:
BACKGROUND
The Airport is located in Augusta, Georgia and is operated by the Augusta Aviation
Commission for the City of Augusta. The Airport is a full-service commercial airport, as
well as, a Fixed Based Operator and general aviation facility. The commercial side of the
Airport consists of a new main passenger terminal that was completed and occupied
within the last three (3) years. The Augusta Air Trade Area has a population of over
511,000 and is the second largest city in Georgia. The Airport is served by three airlines:
Atlantic Southeast (d/b/a Delta Connection) American Eagle (d/b/a American Airlines)
and US Airways Express. The Airport had thirty-six scheduled arrivals and departures
per day as of June 2010. The Airport enplaned 210,000 passengers in 2009 and projects
enplanements at 250,000 in 2010. The Airport is a non-smoking facility.
1. PREMISES:
1.1 Description of Premises:
The Concessions' areas are located in both the secure and non-secure portions of
the terminal. The primary food/beverage concession area on the secure side of the
Airport consisting of 3,353 square feet which shall be used for as a restaurant with
an American bar/grill concept; the secondary food area consisting of 414 square
feet on the non-secure side of the Airport which shall be used as food and
beverage concession with a cafe/coffee concept; and the retail space on the
secured side of the Airport consisting of 539 square feet of space which shall be
used as a retail news/gift store.
Concessionaire shall be entitled to occupy and use, for the purposes set forth
herein, the following premises (collectively referred to as the "Premises")
described on Exhibit A. No easement for light, air or view is granted, given or
implied in this Agreement. If, upon completion of any construction contemplated
by the Article entitled "Improvements", Concessionaire shall submit to the
Airport a current, more detailed description based on final, as-built drawings,
which will be incorporated by reference into this Agreement as a replacement for
Exhibit A without the need for the parties to formally amend this Agreement.
1.2 Relocation
Airport's or Federal Government's Right to Require relocation: The Airport
or the Federal Government may require that Concessionaire relocate all or part of
Tailwinds Augusta, LLC Concessions Agreement 2
the Premises within the Airport, or expand or contract the size of the Premises.
Concessionaire must accomplish any such relocation, expansion or contraction
expeditiously upon a timetable approved or directed by the Airport Director.
2. TERM:
2.1 The term ("Term") of this Agreement is five (5) years from the Commencement
Date at the end of which the Agreement will immediately and automatically
terminate, unless renewed by the County pursuant to the Clause entitled
"Renewals". In the event the Agreement is renewed, the Term shall include the
renewal period.
2.2 Renewals: This Agreement is subject to a five (5) year renewal at the sole option
of the City/Aviation Commission. Notice of the Commission's' intention to
renew the Agreement will be provided to Concessionaire within thirty (30) days
of the end of the Term. Renewal shall require the approval of the Aviation
Commission and, if granted, will require the execution of an appropriate
extension of the Agreement.
2.3 Holding Over: If Concessionaire remains in possession of the Premises after the
expiration of the Term, or any renewals, without written permission from the
County, such holding over will not be deemed to operate as a renewal or
extension of this Agreement, nor will it create a tenancy at will. During such
month-to-month tenancy, the terms of this Agreement will continue to govern the
relationship of the Parties.
2.4 Surrender of Premises: Except as otherwise provided in this Agreement, at the
expiration or sooner termination of the Term, the Concessionaire agrees to
surrender possession of the Premises peaceably and promptly to the County in as
good condition as at the commencement of the Agreement excepting only
ordinary wear, tear, and obsolescence.
3. USE:
3.1 Non Exclusive: Concessionaire will have the non-exclusive rights to provide
retail concessions service on the Premises as described herein.
3.2 Use of Premises: Concessionaire shall use the Premises to provide the goods,
items, services or commodities appropriate for the store category and concept
described in the section of this Agreement titled "Premises" or otherwise as
approved by the Airport Director from time to time. The Airport Director shall
have the right, at any time, to require Concessionaire to revise or replace the
Tailwinds Augusta, LLC Concessions Agreement 3
concept at any location and may prohibit the sale of any particular goods, items,
services or commodities or categories of goods, items, services or commodities or
categories or the use of the Premises for any purpose. In the event Concessionaire
revises or replaces the concept at any location, percentage rent for such location
may be adjusted commensurately in the discretion of the Airport Director.
3.4 Pricing: Concessionaire must submit all of its proposed prices to the Airport
Director for review at least thirty (30) days prior to Concessionaire offering its
services to the public. Concessionaire may not charge any prices that have not
been approved in writing by the Airport Director, once Concessionaire's initial
proposed prices are approved in writing. Concessionaire must submit any
proposed price changes to the Airport Director for approval prior to
implementation.
3.4.1 Same Store Pricing: For any operations where Concessionaire currently
operates the same or similar store in the Metropolitan Augusta area,
Concessionaire may not charge higher prices at the Airport for like or similar
items. The Airport Director has the right to survey prices at those stores and to
use these prices for same or similar items as the primary basis for pricing in the
Premises. If the same brand does not exist in the Augusta metropolitan area, the
Concessionaire shall charge Street Plus 10% Price. Street Plus pricing is the cost
that a consumer can purchase a particular item at a non-Airport location.
3.4.2 Street Plus 10% Pricing: To determine Street Plus 10% Prices, the
Airport Director may, at any time, conduct a Pricing Survey. This survey shall
consist of selecting four (4) restaurants or similar store locations where residents,
travelers or visitors normally shop. Concessionaire's price on any specific item
may not exceed the average price of those locations remaining after eliminating
the two (2) lowest priced-locations for that particular item, plus an additional 10
percent. If fewer than four (4) locations carry a specific item, the maximum
permissible price shall not exceed the average price of the three (3) highest
locations carrying that specific item, plus an additional ten (10) percent. If no
other location carries the item, Concessionaire shall charge a reasonable price.
The Airport Director has the sole discretion to determine whether a price is
reasonable.
3.5 Hours of Operation: All stores within the Premises must be opened 365 days a
year at least thirty (30) minutes before the time of the first scheduled departure
and shall provide uninterrupted service until the last scheduled departure unless
otherwise specified by the Airport Director.
3.5.1 Concessionaire may be required to keep its store open for additional hours,
including around the clock, with very limited notice, at the direction of the
Airport Director under circumstances warranting such additional operating hours,
as determined by the Airport Director in his discretion.
Tailwinds Augusta, LLC Concessions Agreement 4
3.6 Customer Service:
3.6.1 The Airport Director shall have the right to make reasonable objections to
the quality of articles sold, the type of items sold, the character of the service
rendered to the public, the prices charged and the appearance and condition of the
Premises. Concessionaire agrees to promptly discontinue or remedy any
objectionable practice. Concessionaire must also comply with any Standards
established by the Airport Director.
3.6.2 Concessionaire agrees to keep the Premises and all fixtures and equipment,
clean, neat, safe, sanitary and in good order and condition at all times and shall
comply with County and State regulations related to the same. Concessionaire
agrees to respond to customer complaints in an expeditious manner.
3.6.3 Customer Service and Quality Assurance Standards: The Airport Director
reserves the right to conduct quality assurance audits in order to ensure optimal
customer service performance. Basic standards of customer service include and
are not limited to the following: promptly greeting the customer with a smile;
making eye contact; being friendly and knowledgeable about the Airport;
listening and responding politely; presenting a receipt and the correct change to
the customer; and thanking the customer with a smile. In addition, the
Concessionaire must understand and agree that its operation at the Airport
necessitates the rendering of the following passenger services: making reasonable
change; offering passenger directions and assistance; and accepting four (4) major
credit cards (Visa, MasterCard, Discover, and American Express) as payment for
any debit or credit transaction. Further, the Airport highly encourages and may
ultimately require the implementation of expedited payment options, which may
include but is not limited to MasterCard PayPass� technology.
3.6.4 Concessionaire shall maintain adequately trained staff and adequate
supervision on duty, during operational hours.
3.6.5 The Airport believes that a high quality and stable work force is key to
providing outstanding customer service. Concessionaire is expected to maintain a
positive work environment that encourages the development and growth of all
employees. Concessionaire is expected to maintain favorable turnover rates
compared to like businesses in the industry. Failure to do so may result in non-
renewal or termination of this Agreement.
3.6.6 Concessionaire's staff must be aware of the time sensitive nature of
Airport patrons. All of Concessionaire's employees shall be courteous and helpful
to the public.
Tailwinds Augusta, LLC Concessions Agreement 5
3.6.7 Concessionaire shall conduct its operation in a businesslike manner. A
sufficient quantity of inventory must be carried to ensure that the premises will be
fully stocked and available to passengers at all times. All inventories must be top
quality and displayed in an "opening day fresh" manner.
3.6.8 Concessionaire agrees to offer plastic or coated paper gusseted bags with
handles to enable customers to more easily transport items through the Airport.
Innovative packaging or transportation devices that facilitate travel are highly
encouraged.
3.6.9 A dress code should be strictly adhered to for all operating staff.
Concessionaire agrees that all employees shall be properly attired in uniforms
consisting of a golf shirt and khaki pants or slacks or skirt for female employees.
In no instance shall any employee serving the public be attired in denim.
3.7 Continuous Operation of Premises: Concessionaire must operate the Premises
uninterrupted, throughout the Term, including renewals, and provide all required
services, to the extent permitted by law and provided that Concessionaire is
lawfully entitled to possession of the Premises and maintains all necessary
permits and licenses.
3.8 Prohibition of Solicitation: Concessionaire is strictly prohibited from engaging in
any activities outside the Premises within the Airport for the recruitment or
solicitation of business. Concessionaire may not place or install any carts, kiosks,
inline store, racks, stands, display merchandise or trade fixtures outside the
boundaries of the Premises without the express written consent of the Airport
Director.
3.9 Representative of Concessionaire: Concessionaire must at all reasonable times
retain in the Airport at least one (1) qualified representative, authorized to
represent and act for it in matters pertaining to this Agreement and its operations
at the Airport and must keep the Airport Director informed in writing of the
identity of each such person.
3.10 Ingress and Egress; Security Regulations: Concessionaire possesses the right of
ingress to and egress from the Airport as may be necessary to fulfill its obligations
under this Agreement, subject to Airport rules and regulations, and agrees that the
exercise of such right must not impede or interfere unduly with the operation of
the Airport by County, its tenants, contractors, airline passengers, the public or
other authorized occupants. Concessionaire agrees that its rights under this
Agreement are subject to all security regulations or restrictions that may exist or
come into existence and be imposed by any governmental entity, including, but
not limited to the FAA and TSA, having jurisdiction over the Airport and security
matters pertaining to it. Concessionaire will have no claim for relief of rent or
other remedies as a result of the imposition of such security regulations.
Tailwinds Augusta, LLC Concessions Agreement 6
3.11 Reservations by Airport:
Airport has the right, without any obligation to do so, at any reasonable time and
as often as it considers necessary:
3.11.1 to inspect any portion of the Premises;
3.11.2 to enter the Premises and make ordinary repairs;
3.11.3 to take such action in the event of an emergency concerning the Premises
as may be required for the protection of persons or property. In the event the need
to take such emergency action is caused by acts or omissions of Concessionaire,
Concessionaire will reimburse County or the Airport for the costs associated with
such emergency actions. Further, Concessionaire must assure emergency access
to the Premises by providing emergency telephone numbers at which
Concessionaire's representative(s) may be reached on 24-hour basis.
3.12 Compliance with Laws and Regulallons; Licenses and Permits.
3.12.1 Concessionaire must at all times during the Term comply with all the
applicable federal and state laws, local ordinances, codes, rules and regulations
respecting Concessionaire's use and occupation of the Premises issued by any
governmental entity having jurisdiction over the Airport, including, but not
limited the County and the Airport Director.
3.12.2 Concessionaire shall be solely responsible for the cost of obtaining and
maintaining all licenses and permits necessary to operate at the Airport and
perform all required services. All such licenses and permits shall be posted as
required by County, state and federal law.
3.12.3 Concessionaire shall ensure that those employees serving alcoholic
beverages shall have all licenses and permits as required by the State of Georgia.
3.13 Prohibited Uses: The Premises may not be used except for the purposes
specified in the Clause entitled "Use". Concessionaire may not do, or cause or
permit anything to be done in or about the Premises, or bring or keep anything on
the Premises:
3.13.1 increasing in any way the rate of fire insurance or other insurance
applicable to the Airport or its concourses, or any of its contents; or
3.13.2 creating a nuisance; or
Tailwinds Augusta, LLC Concessions Agreement 7
3.13.3 in any way obstructing or interfering with the rights of others in the
Airport, or injuring or annoying them; or
3.13.4 allowing any sale by auction on the Premises; or
3.13.5 committing any waste upon the Premises; or
3.13.6 using or allowing the Premises to be used for any improper, immoral,
unlawful or objectionable purpose; or
3.13.7 placing any loads upon the floor, walls or ceiling which endanger the
structure; or
3.13.8 obstructing the sidewalk, passageways, stairways or escalators in front of,
within or adjacent to the Airport, its concourses or other facilities; or
3.13.9 doing or permitting to be done anything in any way tending to injure the
reputation of County or the appearance of the Airport, its concourses or other
facilities.
3.14 Trash Removal: All waste matter must be stored and disposed of in a manner
satisfactory to the Airport Director, and Concessionaire agrees to arrange for the
timely disposal of all waste material. Concessionaire will be allowed to transfer
trash to designated waste receptacles provided by the Airport.
4. SERVICES TO BE PROVIDED:
Concessionaire proposed to provide food, beverage and gift concession
concepts in three spaces provided by the Airport including a Bar/Restaurant,
News/Gift Store and Cafe/Coffee concept. The Concessionaire's proposal is
incorporated herein by reference as if fully set forth herein. The Airport has
accepted the following concepts:
4.1 Bar/ Restaurant: the Bar/Restaurant shall serve all foods and beverages as set
forth in Concessionaire's proposal. The Concessionaire has agreed to provide
breakfast items until 11 am.
4.2 News/ Gift Store: The News/Gift store shall carry:
Souvenirs; gifts; keepsakes and unique items native to the Augusta area; games;
toys; small electronics and puzzles; news papers; books and magazines; snack
items such as gum, chips, candy, mints, drinks; T-shirts; eyewear; weather related
items; small leather goods; gift items; First Aid items and travel items.
The Concessionaire has agreed to provide a space percentage allocation by
merchandise type as follows:
Tailwinds Augusta, LLC Concessions Agreement 8
4.2.1 Clothing, jewelry and sunglasses: 25%
4.2.2 Novelties /Souvenir gifts/toys: 30%
4.2.3 Electronics/luggage: 10%
4.2.4 Travel accessories/health beauty items: 20%
4.2.5 Snacks and beverages: 5%
4.2.6 Books, magazines and newspapers: 10%
The items listed herein above are not all inclusive and the Concessionaire may
offer additional items for sale so long as the items fit into the concept originally
proposed.
4.3 Cafe/Coffee Area: the cafe/coffee area shall include an espresso/coffee/smoothie
custom creation concept.
4.4 Concessionaire shall provide all equipment and furnishings necessary for each
location as set forth in Section IV- Concepts and Operation Plans of its proposal.
4.5 Vending Machines: The Concessionaire will assume responsibility for the
vending machines currently owned and operated by the Commission at the
Airport.
4.5.1 Concessionaire shall be responsible for the restocking, servicing and
maintenance of the vending machines located in the Airport terminal.
4.5.2 Concessionaire shall include the revenue from the vending machines in its
monthly revenue reports.
5. ASSIGNMENT OR SUBLETTING:
5.1 Concessionaire may not assign, transfer or encumber its interest in this Agreement
or any other right, privilege or license conferred by this Agreement, either in
whole or in part, without the prior written consent of County. Furthermore,
Concessionaire may not sublet or encumber the Premises, or any part of it,
without the prior written consent of Airport. Any attempted assignment, transfer,
encumbrance or sublease without the prior written consent of County is voidable
at County's election.
5.2 If Concessionaire is a partnership or joint venture, a withdrawal or change
(whether voluntary, involuntary or by operation of law) of the partner/joint
venture or partners/joint venture owning more than 50% (as measured by interests
in capital, profits or such other measurement as County may reasonably
designate) of the partnership/joint venture, or the dissolution of the
partnership/joint venture, will be deemed an assignment subject to this Clause.
Tailwinds Augusta, LLC Concessions Agreement 9
5.3 If Concessionaire is a corporation, any dissolution, merger, consolidation or other
reorganization of Concessionaire, or the sale or other transfer of a controlling
percentage of the capital stock of Concessionaire, or the sale of more than 50% of
the value of the assets of Concessionaire, will be deemed an assignment subject to
this Clause. The phrase "controlling percentage" means the ownership of, and the
right to vote, stock possessing more than 50% of the total combined voting power
of all classes of Concessionaire's capital stock issued, outstanding and entitled to
vote for the election of directors. This paragraph will not apply to corporations
the stock of which is traded through an exchange or over the counter.
6. RENTAL PAYMENTS/FEES:
6.1 Payments/Fees:
The Concessionaire shall make payments to the Airport in the amount of ten
percent (10%) of Total gross retail and alcoholic beverage sales and five percent
(5%) of total gross food and non-alcoholic beverage sales, including sales from
vending machines.
6.L1 The term "Gross Receipts" shall include all monies paid or payable to
Concessionaire or Concessionaire's subtenants for sales made or services
rendered at or from the Airport, regardless of when or where the business
transaction occurs on Airport property, as well as, any other revenues of any type
arising out of or in connection with Concessionaire's operations at the Airport,
provided, however, that any taxes imposed by law which are separately stated to
and paid by the customer and directly payable to the taxing authority by
Concessionaire shall be excluded.
6.1.2 By the 15th day of each month, Concessionaire will submit a report, in a
form provided by the Commission, of actual Gross Receipts received during the
previous month and a check for the same.
6.1.3 Fees and/or payments shall be made in lawful money of the United States,
free from all claims, demands, set-offs or counterclaims of any kind against
County. All payments shall be made at:
Augusta Regional Airport
1501 Aviation Way
Augusta, Georgia 30906
Attn: Airport Executive Director
6.1A The Airport may require payment at such other place as the Airport
Executive Director may from time to time designate to Concessionaire in writing.
6.1.5 No payment by Concessionaire or receipt by Airport of a lesser amount than
the correct rent shall be deemed to be other than a payment on account, nor shall
Tailwinds Augusta, LLC Concessions Agreement 10
any endorsement or statement on any check or any letter accompanying any check
or payment be deemed an accord and satisfaction. Airport may accept such check
or payment without prejudice to County's right to recover the balance or to pursue
any other remedy in this Agreement or otherwise provided by applicable law or
equity.
6.2 Books and Records:
6.2.1 Concessionaire must maintain throughout the Term of this Agreement and
for a three year (3) period after the Term, including renewals, or, in the event of a
claim by County, until such claim of County for payments hereunder shall have
been fully ascertained, fixed and paid, separate and accurate daily records of
Gross Revenues from all activity conducted under this Agreement in accordance
with generally accepted accounting principles, showing in detail all business on or
transacted in, about, from or pertaining to the Premises, and Concessionaire must
enter all receipts arising from such business in regular books of account, and all
entries in any such records shall be made at or about the time the transactions
occur.
6.2.2 In addition, Concessionaire shall maintain weekly, monthly and annual
reports of Gross Revenues and transactions derived from its operations under this
Agreement, using a form and method as directed by the Airport Director.
Concessionaire, throughout the Term, shall employ such forms and methods.
Upon the Airport Director's written request, Concessionaire must make available
immediately at the Airport, for inspection and copying by the Airport Director or
his or her designated representative, any and all books, records and accounts
pertaining to its operations or performance of its obligations under this
Agreement. The intent and purpose of the provisions of this Section are that
Concessionaire must keep and maintain records which will enable County to
ascertain, determine and audits, if so desired by County, clearly and accurately,
with its obligation under this Agreement and the share of Gross Revenues
received by County, and that the form and method of Concessionaire's reporting
of Gross Revenue will be adequate to provide a control and test check of all Gross
Revenue derived by Concessionaire under this Agreement.
6.2.3 Should any examination, inspection or audit of Concessionaire's books
and records by County disclose an underpayment by Concessionaire in excess of
2% of the total annual consideration due, Concessionaire must promptly pay
County the amount of such underpayment, plus interest thereon at the rate of
1.5% per month, from the date due until the date collected, and shall reimburse
County for all costs incurred in the conduct of such examination, inspection, or
audit. If County deems it necessary to utilize the services of legal counsel in
connection with collecting the reimbursement for such examination, inspection or
audit, then Concessionaire must reimburse County for reasonable attorneys' fees
and litigation expenses as part of the costs incurred.
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6.2.4 Not later than ninety (90) days after each annual anniversary of the
Commencement Date, Concessionaire must furnish to the Airport Director an
unqualified report, certified by a Certified Public Accountant of the Gross
Revenues. Concessionaire must also furnish the Airport Director with such other
financial or statistical reports as the Airport Director from time to time may
request.
6.2.5 Upon request by the Airport Director, Concessionaire must furnish to
County copies of its quarterly State of Georgia sales and use tax returns covering
the Premises as well as Concessionaire's Georgia and federal income tax returns
at the time of filing, and any amendments. All copies of such returns must be
certified as exact copies of the original documents by a Certified Public
Accountant. Tenants shall also promptly notify the Airport Director of and
furnish to the County copies of any audit reports covering the Premises conducted
by the Department of Revenue of the State of Georgia or the Internal Revenue
Service. All of the books, records and accounts required by this Section to be
maintained by Concessionaire, or true and complete copies of them, shall be
maintained by Concessionaire in the greater Augusta area.
6.3 Revenue Control:
6.3.1 All business transactions, which occur in the Premises, must be completed
by a register transaction and a receipt must be offered to each customer. The
Concessionaire must implement a computerized point of sale system ("POS") and
to further modify the system from time to time.
All cash registers used in the operation of businesses within the Premises
must have, at a minimum, the features outlined below:
6.3.2 Segregated charge categories;
6.3.3 The input device may either be a keyboard, scanner, touch screen or any
combination of the three;
6.3.4 The patron fee display shall be of sufficient size and legibility to be readily
observed by the patron during the processing of the transaction;
6.3.5 The register or control processor(s) shall be capable of data transmission and
6.3.6 The register or data collection device shall have a secure transaction audit
tape or transaction file.
7. TAXES AND LIENS: Concessionaire is liable for all taxes levied or assessed
against any interest of Concessionaire or its subtenants in the Premises and any
Tailwinds Augusta, LLC Concessions Agreement 12
personal property, furniture or fixtures placed by Concessionaire in the Premises.
Concessionaire agrees not to permit or suffer any liens to be imposed upon the
Premises, the Airport or any other part of them as a result of its activities without
promptly discharging them, provided, however, that Concessionaire may, if
Concessionaire so desires, contest the legality of any such liens. In the event of a
contest, Concessionaire must provide a bond in an amount and form acceptable to
County in order to clear the record of any such liens.
8. CONSTRUCTION OF CONCESSIONAIRE IMPROVEMENTS:
8.1 Concessionaire must, at its sole cost and expense, design, erect, construct and
install all fixtures, furnishings, carpeting, decorations, finishing, equipment,
counters, and all other improvements for the operation of business within the
Premises pursuant to this Agreement. In no case shall any such improvements
cause damage to the structure of the Airport or the Premises.
8.1.1 The Parties have agreed that for primary food/beverage concession area the
Airport will provide the equipment items highlighted on Exhibit D to this
Agreement for the Premises in the Airport's secured area. Said equipment
includes, a Bally Freezer/Refrigerator, ice machine, pre-rinse wall mounted spray
faucet, hand sink and faucet, a three compartment sink, hood, and one television.
8.L2 The Parties have agreed that the Airport has built out the 414 square feet on
the non-secure side of the Airport which shall be used as food and beverage
concession with a cafe/coffee concept. The equipment provided in this area
includes counters, cabinetry, a refrigerated glass display case, hand sink and ice
machine.
8.1.3 The Concessionaire shall return the Premises and all such equipment and
items at the end of this Agreement in good condition, normal wear and tear
excepted.
8.1.4 Concessionaire shall throughout the term of this Agreement assume the
entire responsibility, cost, and expense for all repair and maintenance whatsoever
on the Premises, whether such repair or maintenance be ordinary or extraordinary,
structural or otherwise, and shall keep improvements thereon in a good
workmanlike manner.
8.2 Utilities:
8.2.1 Utility Connections: The Airport will provide the source for certain
utility connections for the concession spaces. All utilities to the concession space
will be separately metered.
Tailwinds Augusta, LLC Concessions Agreement 13
8.2.2 Concessionaire must pay the whole cost for all utility services as invoiced to
Concessionaire by the Airport and for such other special services which it may
require in the Premises, and Concessionaire expressly waives the right to contest
any utility rates; provided that Concessionaire will not be charged for the supply
of heat, ventilation, and air conditioning for the Premises.
8.2.3 Heating, Ventilation and Air Conditioning ("HVAC"): The County will
provide the base system for HVAC. However, Concessionaire will be required to
install separate equipment for HVAC requirements specifically related to
Concessionaire's operations. In such event, Concessionaire will pay for utility
usage in the concession spaces for HVAC requirements. Concessionaire will pay
for all utilities without exception necessary in the operation of its business
including telephone, electricity, water, sewage, gas and other fuels. All charges
including but not limited to deposits and all service charges for utility services
metered directly to the concession space must be paid by Concessionaire,
regardless of whether such utility services are furnished by the County or other
utility service corporations.
8.3 Waiver of Damage: Concessionaire expressly waives all claims for damages
arising out of or resulting from failures or interruptions of utility services
furnished by Airport including, but not limited to, electricity, water, plumbing,
sewage, telephone, communications, heat, ventilation, air conditioning; or for the
failure or interruption of any public or passenger conveniences.
8.4 Maintenance and Repair: Concessionaire agrees, at its own expense, to keep the
Premises and all Concessionaire Improvements in good repair and in a clean, neat,
safe and sanitary condition and in good order at all times. If it becomes
reasonably necessary during the Term of this Agreement, as determined by the
Airport Director, Concessionaire will, at its own expense, redecorate and paint
fixtures and the interior of the Premises and improvements, and replace fixtures,
worn carpeting, curtains, blinds, drapes, or other furnishings. Additionally,
Concessionaire shall pay its pro rata share of Airport Operations and Maintenance
("O&M") costs to be billed monthly by the County or its designee.
8.4.1 Janitorial Service: Concessionaire will provide sufficient janitorial
services to ensure that the Premises is at all times maintained in a clean attractive
and sanitary manner including, but not limited to, equipment, utensils, fixtures,
grease traps, service counters and display units.
8.4.2 Pest Control: At any time during the Term of this Agreement, the Airport
Director may require Concessionaire to use the pest-exterminating contractor
engaged by the Airport to implement a comprehensive, ongoing pest control
program. In such case, Concessionaire shall be required to provide the County
with reports indicating compliance with pest control standards, in such form as
Tailwinds Augusta, LLC Concessions Agreement 14
the Airport Director may dictate from time to time and shall be required to
maintain manifest reports on file at each store, at all times.
8.5 Advertising: Concessionaire may, at its own expense, install and operate
necessary and appropriate identification signs on the Premises, subject to the
approval of the Airport Director as to the number, size, height, location, color and
the general type and design. Such approval shall be subject to revocation by the
Airport Director at any time. Without express written consent of the Airport
Director, Concessionaire may not display any advertising, promotional or
informational pamphlets, circulars, brochures or similar materials.
9. LIABILITY AND INDEMNITY:
9.1 County's Liabilities: Neither the Airport or the County will be liable or
responsible to Concessionaire for any loss (es), damage(s) or expense(s) that
Concessionaire may sustain or incur if either the quantity or character of any
services to be provided by Airport is changed or is no longer available or is no
longer suitable for Concessionaire's requirements. County will not be liable or
responsible to Concessionaire for any loss (es), damage(s) or expense(s) arising
out of, resulting from, relating to or concerning, directly or indirectly, acts of
terrorism, including, but not limited to, loss (es), damage(s) or expense(s)
sustained or incurred by Concessionaire as a result o£
9.1.1 A change in the Airport's or Concessionaire's business resulting from
such terrorist acts;
9.1.2 The enactment of laws responding to or concerning such terrorist acts; or
9.1.3 Any other detrimental effect upon Concessionaire or its business resulting
from such terrorist acts.
9.2 IndemniTy and Hold Harmless: Concessionaire agrees to defend, indemnify
and hold harmless the Mayor, the County, the Aviation Commission, the County
Board of Commissioners, its officers, agents, officials and employees
(collectively, "Indemnified Parties") from and against:
9.2.1 All liability for injuries to or deaths of persons or damage to property
arising from Concessionaire's activities under this Agreement or in or about the
Premises; and
9.2.2 all loss(es), expens(es), demand(s), suit(s) and claim(s) against the
Indemnified Parties sustained or alleged to have been sustained arising out of or
relating to the negligence or willful misconduct of Concessionaire or any other
Tailwinds Augusta, LLC Concessions Agreement 15
individual or entity under Concessionaire's control (contractual or otherwise) and
their officers, agents or employees; and
9.2.3 all loss (es), expens (es), demand(s), suit(s) and claim(s) against the
Indemnified Parties sustained or alleged to have been sustained arising out of or
relating to any liens and charges of any kind that may at any time be established
against the Premises or this Agreement, or any part of it, as a consequence of any
act or omission of Concessionaire or as a consequence of the existence of
Concessionaire's interest under this Agreement; and
9.2.4 all loss(es), expense(s), demand(s), suit(s) and claim(s) against the
Indemnified Parties sustained or alleged to have been sustained arising out of or
relating to Concessionaire's violation or alleged violation of the Clause entitled
"Hazardous Materials". This indemnification obligation includes, but is not
limited to fines assessed against Concessionaire, County, or others for whom
County may be responsible, diminution in value of the Airport, damages for the
loss of use of rentable or usable space or of any amenity of the Airport, damages
arising from any adverse impact on marketing of space in the Airport, and sums
paid in settlement of claims, attorneys' fees, consultant fees, and expert fees
which arise during or after the Term of this Agreement, including any renewals,
as a result of such violation. This indemnification of County by Concessionaire
also includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remediation, removal, or
restoration work required by any federal, state or local governmental agency or
political subdivision because of Hazardous Material present in the soil ar ground
water on or under the Airport which results from such a violation; and
9.2.5 Any and all loss (es), claim(s), damage(s), action(s) and suit(s) alleging that
any good and/or service sold by Concessionaire infringes upon one or more
United States Patent(s), copyright(s) or trademark(s) owned by anyone other than
Concessionaire, or violates any provision of the Lanham Act.
9.3 Indemnity Not Limited by Applicable Insurance: Concessionaire further
agrees that this agreement to indemnify and hold harmless the Indemnified Parties
will not be limited to the limits or terms of the liability insurance, if any, required
under this Agreement.
9.4 Survival: The clause entitled "Indemnity and Hold Harmless" shall survive any
termination or expiration of this Agreement.
10. INSURANCE AND BONDING: Concessionaire shall maintain appropriate
insurance for restaurant and bar operations and all insurance required by local,
state and federal law, including, but not limited to, comprehensive, liability and
worker's compensation coverage. During the term of this Agreement,
Concessionaire shall provide, pay for, and maintain with companies reasonably
Tailwinds Augusta, LLC Concessions Agreement 16
satisfactory to the City and the Aviation Commission and Georgia law, as the
same may be amended from time to time, and as described herein. All insurance
shall be issued by insurance companies eligible to do business in the State of
Georgia and the Company must be rated no less than "A" as to management, and
no less than "AAA" as to strength, by the latest edition of Best's Insurance Guide,
published by Alfred M. Best Co., Inc., 75 Fulton Street, New York, New York
10038. In the event of a conflict between the provisions of the Augusta-
Richmond County Code and this Agreement, the more stringent requirement shall
govern.
10.1 All liability policies of Concessionaire shall provide coverage that includes, or has
the same substantive effect as the following:
10.1.1 Augusta-Richmond County and each of its Commissioners, officers,
agents, elected representatives, Aviation Commission, volunteers, and employees,
in their respective capacities as such, shall be additional insureds hereunder with
respect to the products, premises, and operations of the named insured.
10.1.2 "It is agreed that this insurance policy shall apply as primary, and any
insurance and/or self-insurance as may be maintained by the City or its
Commissioners, officers, agents, elected representatives, volunteers, and
employees shall apply in excess of, and shall not contribute with insurance
provided by this policy."
10.1.3 This insurance shall not be materially changed, altered, canceled, or non-
renewed until after thirty (30) days advanced written notice has been given to the
City except that only ten (10) days notice shall be required in the event of
cancellation due to non-payment of premium."
10.2 All such evidence of insurance shall be in the form of certificates of insurance
satisfactory to the City and its Risk Manager, accompanied by a certified true
copy of an endorsement to each policy containing the above language. The
insurance coverage and limits required shall be evidenced by properly executed
certificates of insurance. These certificates shall be signed by the authorized
representative of the insurance company shown on the certificate. The required
policies of insurance shall be in compliance with the laws of the State of Georgia.
10.3 The acceptance of delivery to the City and the Aviation Commission of any
certificate of insurance evidencing the insurance coverages and limits required
under this Agreement does not constitute approval or acceptance by the City or
the Aviation Commission that the insurance requirements in this Agreement have
been met. No operations shall commence at the Airport unless and until the
required certificates of insurance are in effect and approved by the City.
Tailwinds Augusta, LLC Concessions Agreement 17
10.4 The Concessionaire and the City understand and agree that the minimum limits of
the insurance herein required may, from time to time, become inadequate, and
Concessionaire agrees that it will increase such minimum limits upon receipt of
written notice defining the basis of the increase. The Concessionaire shall furnish
the City, within sixty (60) days of the effective date thereof, a certificate of
insurance evidencing that such insurance is in force.
10.5 Concessionaire's insurance companies or its authorized representative shall give
the City and the Aviation Commission thirty (30) days prior written notice of any
cancellation, intent not to renew, or material reduction in any policy's coverage,
except in the application of the Aggregate Limit Provisions. In the event of a
reduction to the Aggregate Limit, it is agreed that immediate steps will be taken to
have the prior Aggregate Limit reinstated.
10.6 If at any time the Airport Director requests a written statement from the insurance
companies as to any impairments to the Aggregate Limit, prompt authorization
and delivery of all requested information will be given to the Aviation
Commission. Renewal Certificates of Insurance must be provided to the City and
Aviation Commission as soon as practical but in every instance prior to expiration
of current coverage's.
10.7 The amounts and types of insurance shall conform to the following minimum
requirements with the use of Insurance Service Office policies, forms, and
endorsements or broader, where applicable. Notwithstanding the foregoing, the
wording of all policies, forms, and endorsements must be reasonably acceptable
to the City and Aviation Commission.
10. 8 Workers' Compensation and Employer's Liability Insurance shall be maintained
in force by Concessionaire during the term of this Agreement for all employees
engaged in the operations under this Agreement. The limits of coverage shall not
be less than:
Workers' Compensation Georgia Statutory
Employer's Liability $1,000,000 Limit Each Accident
$1,000,000 Limit Disease Aggregate
$1,000,000 Limit Disease Each Employee
10.9 Property Damage: Broad Form Comprehensive Liability to include Products
and Completed Operations Liability and Liquor Liability insurance including
coverage of motor vehicles with limits not less than $1,000,000, naming as an
additional insured.
10.10 Automobile Liability Insurance: Covering all owned, non-owned and hired
vehicles, used in connection with the work, in amounts as indicated above. This
Tailwinds Augusta, LLC Concessions Agreement 18
policy must be endorsed to indicate that any premium, whether deposit or final,
will be the sole obligation of the Concessionaire.
10.11 An insurance binder letter or a Certificate of Insurance must be sent to:
City of Augusta
530 Greene St.
Room 217
Augusta, Ga. 30901
Attn: Sandy Wright, Risk Manager
11. DAMAGE OR DESTRUCTION:
11.1 Partial Destruction of the Premises:
11.1.1 Insured Damage: If the Premises are damaged by any casualty which is
insurable under an insurance policy of the type required to be maintained by
Concessionaire pursuant to this Agreement, regardless of whether the Premises is
tenantable or practically usable for the purpose for which it was formerly used,
then Concessionaire must repair such damage as soon as reasonably possible and
this Agreement will continue in full force and effect.
11.1.2 Uninsured Damage: If the Premises are damaged by any casualty not
insurable under an insurance policy of the type required to be maintained pursuant
to this Agreement, and such casualty is not caused by an act or omission of
Concessionaire, its agents, servants or employees, then Airport's options are,
either:
11.1.2.1 repair such damage as soon as reasonably possible at Airport's
expense, in which event this Agreement will continue in full force and
effect; or give written notice to Concessionaire within thirty (30) days
after the date of occurrence of such damage of Airport's intention to
terminate this Agreement effective as of the date of the occurrence of the
damage. If Airport elects to terminate this Agreement, Concessionaire
will have the right, within ten (10) days of the date of the Airport's notice
' to notify, Airport in writing of Concessionaire's intention to repair such
damage. If Concessionaire fails to repair the damage to Airport's
satisfaction within a reasonable period of time, this Agreement will
automatically terminate effective as of the date of the occurrence of such
damage.
11.1.3 In no event shall Airport be required to repair any injury or damage
of fire or other cause, or to make any restoration or replacement of any
paneling, decorations, office fixtures, partitions, railings, ceilings, floor
Tailwinds Augusta, LLC Concessions Agreement 19
covering, equipment, machinery or fixtures or any other improvements or
property installed in the Premises by Concessionaire or at the direct or
indirect expense of Concessionaire, Concessionaire must restore or
replace the same in the event of damage provided that this Agreement is
not terminated pursuant to this Section.
11.1.4 If the Premises are damaged by any casualty not insurable under an
insurance policy of the type required to be maintained pursuant to this
Agreement, and such casualty is caused by an act or omission of
Concessionaire, its agents, servants or employees, then Concessionaire
must repair the damage to the Airport's satisfaction within a reasonable
period of time, in which event this Agreement will continue in full force
and effect.
11.2 Total Destruction of Premises: If the Premises is totally destroyed during the
Term from any cause whether or not covered by the insurance required under this
Agreement (including any destruction required by any authorized public
authority), this Agreement will automatically terminate, effective as of the date of
such total destruction.
11.3 Damage During Last Year of Term or Renewal Period: If during the last year
of the Term, including any renewal term, the Premises are partially destroyed or
damaged and are not covered under an insurance policy required to be maintained
pursuant to this Agreement, Airport may terminate this Agreement, effective as of
the date of occurrence of such damage, by giving written notice to Concessionaire
within thirty (30) days after the date of occurrence of such damage. If Airport
elects to terminate this Agreement, Concessionaire will have the right, within ten
(10) days of the date of the Airport notice, to notify Airport in writing of
Concessionaire's intention to repair such damage at Concessionaire's expense,
without reimbursement from Airport, in which event this Agreement shall
continue in full force and effect and Concessionaire must proceed to make such
repairs as soon as reasonably possible.
11.4 Reduction of Rent: Concessionaire's Remedies:
11.4.1 If the Premises are partially destroyed or damaged physically and the
Airport is obligated to repair the Premises pursuant to this Agreement, the rent
attributable to such partially destroyed or damaged Premises and payable for the
period during which such damage and repair continues will be reduced in
proportion to the extent to which Concessionaire's use of the Premises is
impaired, calculated on a square foot basis, in accordance with the discretion and
determinations of the Airport Director. For example, if one-half of the Premises
is unusable by Concessionaire as a result of such physical damage or destruction,
then the rent payable for each month during which it exists and is being repaired
will be reduced by one-half. Except for a reduction rent (if any), Concessionaire
Tailwinds Augusta, LLC Concessions Agreement 20
shall have no claim against the Airport for any damage suffered by reason of any
such damage, destruction or repair.
11.4.2 If the Airport shall be obligated to repair the Premises under this Section
and shall not commence such repair or restoration within forty-five (45) days after
such obligation shall accrue, Concessionaire at Concessionaire's option may
cancel and terminate this Agreement by written notice to the Airport at any time
prior to the commencement of such repair. In such event this Agreement shall
terminate as of the date of such notice.
12. TERMINATION AND DEFAULT:
Upon the occurrence of any material default and breach of this Agreement by
Concessionaire, the City may exercise its rights to terminate this Agreement as set
forth below by service of an advance written notice to such effect upon
Concessionaire and this Agreement shall terminate at 11:59:59 p.m. on the
termination date specified within such notice.
12.1 Events of Default: Concessionaire will be in default under this Agreement if:
12.1.1 Concessionaire fails to pay rent or any other payment required under this
Agreement when due to Airport, and that failure continues for a period of thirty
(30) days after such rent or other payment is due whether or not the Airport has
invoiced or provided Concessionaire with notice of any amount due or overdue.;
or
12.1.2 Concessionaire:
12.1.2.1 becomes insolvent, or seeks the benefit of any present or future
insolvency statute; or
12.1.2.2 makes a general assignment for the benefit of creditors; or
12.1.2.3 files a voluntary petition in bankruptcy; or
12.1.2.4 files a petition or answer seeking an arrangement for its
reorganization or the readjustment of its indebtedness under the federal
bankruptcy laws, or under any other law or statute of the United States or
of any other State; or
12.L2.5 consents to the appointment of a receiver, trustee, or liquidator of
any of its property; or
12.1.2.6 files a petition under any part of the federal bankruptcy laws, or
an action under any present or future insolvency law or statute, is
Tailwinds Augusta, LLC Concessions Agreement 21
___. _
involuntarily filed against Concessionaire and not dismissed within sixty
(60) days after the filing; or
12.1.2.7 transfers its interest under this Agreement, without the prior
written approval of City, by reason of death, operation of law, assignment,
sublease agreement or otherwise, to any other person, firm or corporation;
or
12.1.2.8 abandons, deserts or vacates the Premises, including, but not
limited to, ceasing to provide its services at the Premises for thirty (30)
days or more; or
12.1.2.9 files any lien against the Premises because of any act or omission
of Concessionaire, and is not discharged by Concessionaire by payment,
bond or otherwise within twenty (20) days after receipt of notice of the
lien by Concessionaire; or
12.1.2.10 fails to comply with the requirements set forth in the Insurance
and Bonding Requirements; or
12.1.211 fails to keep, perform or observe any term, covenant or
condition of this Agreement; or
12.1.2.12 uses or gives its permission to any person to use any portion of
Premises for any illegal purpose or purpose in violation of this Agreement;
or
12.1.2.13 (including any venture partner of Concessionaire), or any of
their respective officers, directors, principal shareholder(s) or affiliates, is
convicted of or pleads guilty to any crime in any way related to the
operation of the Premises or the Airport or a public sector, governmental
or quasi-governmental project or contract or related to the safety and/or
security of any Airport, governmental entity or its citizens. For purposes
of this Agreement:
12.1.2.131 "principal shareholder" means an owner of shares (or
equity interest, if other than a corporation) representing 10% of the
voting control and/or participation (through dividends or other
distributions) in the profits of an entity:
12.1.2.13.2 "affiliate" means any person or entity which directly or
indirectly controls or is controlled by, or is under common control
with an entity; and
Tailwinds Augusta, LLC Concessions Agreement 22
12.1.2.13.3 "control" or "controlling" means the possession,
directly or indirectly, of the power to direct or cause the direction
of the management and policies of a person or entity whether
through the ownership of voting securities, by contract or
otherwise; or
12.1.2.14 intentionally or willfully misrepresents to the City any
material fact; or
12.1.2.15 made any material misrepresentation or failed to make full and
accurate disclosure to Airport in the documents, questionnaires and other
materials submitted by Concessionaire with its Proposal pursuant to which
this Agreement was awarded to Concessionaire, or failed to comply with
all requirements, including without limitation, the ethical standards policy,
set forth in the County's Code of Ordinances; or
12.1.2.16 acts or fails to act results in the suspension or revocation of, for
a period of more than thirty (30) days, of any rights, powers, licenses,
permits or authorities necessary for the operation of its business at the
Premises; or
12.1.2.17 fails to pay any lawful tax or assessments required to be paid
under this Agreement.
12.2 City's Remedies: If Concessionaire is in default, City will notify Concessionaire
in writing of the nature of the default. If Concessionaire, where a specific time
period for the cure is provided in the applicable subsection of this Agreement,
does not cure the default within that period or, where a time period for the cure is
not specifically provided in the applicable subsection, does not cure the default
within seven (7) days from receipt of notice from Airport, Airport may, without
notice to Concessionaire's sureties, if any, elect to exercise any of the following
remedies:
12.2.1 Allow this Agreement to continue in full force and effect and to enforce all
of Airport's rights and remedies under it, including, without limitation, the right
to assess fines and the right to collect rent as it becomes due together with interest
at the rate of one and 1.5% per month.
12.2.2 Continue this Agreement in full force and effect and enter the Premises and
re-let all or any portion of it to other parties for Concessionaire's account.
Concessionaire must pay to Airport on demand all costs Airport incurs in entering
the Premises and re-letting it, including, without limitation, brokers'
commissions, expenses for repairs and remodeling, attorneys' fees and all other
actual costs. Re-letting may be for a period shorter or longer than the remaining
Term. During the term of any re-letting, Concessionaire must pay to Airport the
Tailwinds Augusta, LLC Concessions Agreement 23
rent due under this Agreement on the date due, less any net rents Airport receives
from any re-letting.
12.2.3 Terminate Concessionaire's rights under this Agreement at any time and
recover from Concessionaire all costs, expenses, losses and damages recoverable
under this Agreement or applicable law as a result of Concessionaire's default and
the termination.
12.2.4 Cure any default at Concessionaire's cost. If Airport at any time, by reason
of Concessionaire's default, pays any sum to cure any default, the sum paid by
Airport shall be immediately due from Concessionaire to Airport on demand, and
shall bear interest at the rate of one and 1.5% per month from the date paid by
Airport until the date Airport is fully reimbursed by Concessionaire.
12.2.5 Exercise any and all other rights or remedies available under this
Agreement or at law or in equity.
12.3 Security Interest:
12.3.1 In addition to the statutory landlord's lien, Concessionaire grants to County
a valid security interest in all goods, wares, equipment, fixtures, furniture,
improvements and other personal property located now or in the future within the
Premises, including the proceeds of such items, to secure payment of all rentals
and other sums of money becoming due from Concessionaire under this
Agreement, and to secure payment of any damages ar losses that County may
suffer by reason of the breach by Concessionaire of this Agreement.
Concessionaire may not remove such goods, wares, equipment, fixtures, furniture,
improvements and other personal property located now or in the future within the
Premises from the Premises without the written consent of Airport until all
arrearages in rent, as well as any other sums of money then due to Airport under
this Agreement, have been paid and discharged and all the covenants, agreements
and conditions of this Agreement have been fully complied with and performed
by Concessionaire.
12.3.2 Upon the occurrence of an event of default by Concessionaire, Airport
and/or may, in addition to any other remedies provided in this Agreement, enter
upon the Premises and take possession of any goods, wares, equipment, fixtures,
furniture, improvements and other personal property of Concessionaire situated
on the Premises, without liability for trespass or conversion, and sell them at
public or private sale, with or without having such property at the sale, after
giving Concessionaire reasonable notice of the time and place of any public sale
or of the time after which any private sale is to be made, at which sale County or
its assigns may purchase the property unless otherwise prohibited by law. The
requirement of reasonable notice to Concessionaire will be met if such notice is
Tailwinds Augusta, LLC Concessions Agreement 24
given in the manner prescribed in the Section entitled "Notices", at least five (5)
days before the date of the sale.
12.3.3 The proceeds from any such sale, less any expenses of the County
connected with the taking of possession, holding and selling of the property
(including reasonable attorneys' fees and other expenses), will be applied as a
credit against the debts payable by Concessionaire, or as otherwise required by
law; and Concessionaire will pay any deficiencies immediately.
12.3A Upon request by Airport, Concessionaire agrees to execute and deliver to
Airport a financing statement in a form sufficient to perfect the security interest of
the County in the property and the proceeds under the provisions of the Uniform
Commercial Code in force in the State of Georgia. By accepting a grant of the
security interest set forth in this provisions, the parties agree that the County is not
waiving its rights under any statutory lien for the payment of rent granted under
this Agreement or applicable law.
13. UNAUTHORIZED ACCESS: Concessionaire is responsible for preventing
unauthorized persons from gaining access to restricted areas of the Airport or any
other part of the Airport through the Premises or any door under Concessionaire's
control. If federal security regulations are violated as a result of trespass by
unauthorized persons into restricted areas of the Airport or any other part of the
Airport through the Premises or any door under Concessionaire's control, or if
such door is left unsecured in violation of federal security regulations, and Airport
is subjected to any liability, including, but not limited to, a fine(s) by the
Transportation Security Administration, Concessionaire must reimburse Airport
for the full amount of such fines promptly upon receipt of an invoice from Airport
and pay for any liability assessed against Airport as a result of such unauthorized
access.
14. SURRENDER OF PREMISES:
14.1 Concessionaire must yield and deliver peaceably to Airport possession of the
Premises and all Concessionaire improvements in good condition, reasonable
wear and tear excepted, upon the expiration or earlier termination of this
Agreement.
14.2 Concessionaire must remove Concessionaire's signs and trade fixtures from the
Premises and must surrender the Premises in clean and presentable condition.
Airport will retain Concessionaire's Performance and Payment Bond(s) or other
securities required under Appendix B until such time as all conditions of this
Agreement have been satisfied, all keys to the Premises are delivered to the
Airport Director by Concessionaire, the Airport Director determines that the
Premises are clean and in good repair and the applicable period for filing liens or
other claims has passed. Concessionaire will be liable to Airport for Airport's
Tailwinds Augusta, LLC Concessions Agreement 25
costs for storing, removing and disposing of any alterations or Concessionaire's
personal property, and of restoration of the Premises.
15. OWNERSHIP OF INFORMATION; CONFIDENTIALITY
15.1 All reports, information, data or other documents given to, prepared by or
assembled by Concessionaire arising out of the work performed under this
Agreement are the exclusive property of Airport and will be kept confidential and
may not be made available to any individual or organization by Concessionaire
without the prior written approval of Airport, provided however that these
provisions shall not apply to data that is in the public domain; was previously
• known to Concessionaire; or was independently acquired by Concessionaire from
third parties who are under no obligation to Airport to keep said data and
information confidential. These provisions shall not apply to information in
whatever form that comes into the public domain through no fault of
Concessionaire, nor shall they be interpreted in any way to restrict Concessionaire
from complying with a legally enforceable court order to provide information or
data; provided, however, Concessionaire shall immediately place Airport on
notice of such court order to permit Airport the opportunity to detertnine whether
a protective order shall be filed. This restriction includes, but is not limited to,
press releases, presentations, promotional materials and other public disclosures.
16. HAZARDOUS MATERIALS:
16.1 Concessionaire shall not cause or permit any Hazardous Material to be brought,
kept or used in or about the Premises or the Airport by Concessionaire, its agents,
employees, contractors, or invitees. Without limiting the foregoing, if the
presence of any Hazardous Material in the Airport caused or permitted by
Concessionaire results in any contamination of the Airport, Concessionaire shall
promptly take all actions at its sole expense as are necessary to return the Airport
to the conditions existing prior to the introduction of such Hazardous Material to
the Airport; provided that Airport's approval of such actions, and the contractors
to be used by Concessionaire in connection therewith, shall first be obtained.
16.2 The term "Hazardous Material" means any hazardous or toxic substance, material,
or waste, which is or becomes regulated by any local governmental authority or
the United States Government. The term "Hazardous Material" includes, without
limitation, any material or substance which is (i) defined as a"hazardous waste",
"extremely hazardous waste", or "restricted hazardous waste" or similar term
under any laws now or hereafter enacted by the United States or the State of
Georgia or any political subdivision thereof, or (ii) designated a"hazardous
substance" pursuant to the Federal Water Pollution Control Act, 33 U.S.C. §
1317, or (iii) defined as a"hazardous waste" pursuant to the Federal Resource
Conservation and Recovery Act, 42 U.S.C.§ 6901 et seq., or (iv) defined as a
Tailwinds Augusta, LLC Concessions Agreement 26
"hazardous substance" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9601 et seq.
16.3 In addition to, and independent of any other right of entry provided herein,
County and its employees, representatives and agents shall have access to the
Premises during reasonable hours and upon reasonable notice to Concessionaire
in order to conduct periodic environmental inspections and tests of Hazardous
Material contamination in the Premises.
17. AIRPORT SECURITY REQUIREMENTS: Concessionaire shall comply, at
its own expense, with the TSA and the Airport's security requirements for the
Airport including, but not limited to employee training and badging.
Concessionaire shall cooperate with the TSA and the Airport on all security
matters and shall promptly comply with any project security arrangements
established by the County. Compliance with such security requirements shall not
relieve Concessionaire of its responsibility for maintaining proper security for the
above-noted items, nor shall it be construed as limiting in any manner
Concessionaire's obligation with respect to all applicable federal, state and local
laws and regulations and its duty to undertake reasonable action to establish and
maintain secure conditions at and around the Premises and throughout the Airport.
All employees shall be properly badged and comply with all Airport safety and
security rules.
18. COUNTY POLICIES; FEDERAL DBE BUSINESS PARTICIPATION AND
NON-DISCRIMINATION PROVISIONS:
18.1 Airport Concession Disadvantaged Business Enterprise (ACDBE) Program. The
Airport has an established Airport Concession Disadvantaged Business Enterprise
(ACDBE) program in accordance with regulations of the U.S. Department of
Transportation (DOT), 49 CFR Part 23. The Airport is a primary airport and has
received federal funds authorized for airport development after January 1988
(authorized under Title 49 of the United States Code). The Airport has signed
airport grant assurances that it will comply with 49 CFR Part 23. The
requirements of 49 CFR Part 23, regulations of the U.S. Department of
Transportation, applies to this concession project. It is the policy of the Airport to
practice nondiscrimination based on race, color, sex, or national origin in the
award or performance of this contract. An ACDBE Concession specific goal of
1.03% (percent) of total gross receipts for concessions was established for this
project. The Concessionaire warrants that it shall make good faith efforts, as
defined in Appendix A, 49 CFR Part 26, to meet the concession specific goal for
ACDBE participation in the performance of this project. Concessionaire has
submitted all information required by the Airport with its proposal including
evidence of good faith efforts.
Tailwinds Augusta, LLC Concessions Agreement 27
18.2 Non-discrimination Certificates: By the execution of this Agreement,
Concessionaire certifies as follows: In providing the services covered by this
Agreement it will not discriminate in any way in connection with this Agreement
against any employee or applicant for employment because of race, color,
religion, sex, national original or physical handicap, and Concessionaire will take
affirmative action to insure that applicants are employed, and those employees are
treated during employment without regard to their race, color, religion, sex,
national origin or physical handicap. Concessionaire shall state in all
advertisements and solicitations that it is an Equal Employment Opportunity
Employer.
18.3 USDOT Non-discrimination Ordinance: This Agreement is subject to the
requirements of the U.S. Department of Transportation's regulations, 49 CFR part
23. Concessionaire agrees that it will not discriminate against any business owner
because of the owner's race, color, religion, national origin, sex or physical
handicap in connection with the award or performance of any agreement covered
by 49 CFR part 23. Concessionaire agrees to include the above statements in any
subcontracts or subsequent agreements that it enters into and cause those
businesses to similarly include the statements in subsequent agreements.
18.4 Public Use and Federal Grants:
18.4.1 To the best of Concessionaire's knowledge, the Premises are subject to the
terms of those certain sponsor's assurances made to guarantee the public use of
the Airport as incidental to grant agreements between the County and the United
States of America, as amended. The County and Concessionaire represent that
none of the provisions of this Agreement violates any of the provisions of the
Sponsor's Assurance Agreement.
18.4.2 It is further covenanted and agreed that nothing contained in this
Agreement shall be construed to grant or authorize the granting of an exclusive
right within the meaning of Section 308 of the Federal Aviation Act of 1958.
18.4.3 Concessionaire for itself, its subtenants, personal representatives,
successors in interest and assigns, as a part of the consideration hereof, does
hereby covenant and agree that (1) no person on the gounds of race, color, or
national origin shall be excluded from participation in, denied the benefit of, or be
otherwise subjected to discrimination in the use of said facilities; (2) in the
construction of any improvements on, over, or under the Premises and the
furnishings of services thereon, no person on the grounds of race, color, or
national original shall be excluded from participation in, denied the benefits of, or
otherwise be subjected to discrimination; (3) Concessionaire shall use the
Premises in compliance with all other requirements imposed by or pursuant to the
Code of Federal Regulations for the Department of Transportation at Title 49,
Subtitle A, Office of the Secretary of Transportation, Part 21, titled
Tailwinds Augusta, LLC Concessions Agreement 28
"Nondiscrimination 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; and (4) in the event of breach of any of the
above nondiscrimination covenants, County shall have the right to terminate this
Agreement thereon, and hold the same as if this Agreement had never been made
or issued. Provision (4) shall not be effective until the procedures of 49 CFR
Subtitle A, Part 21 are followed and completed, including the exercise or
expiration of appeal rights.
18.4 Georgia Security and Immigration Compliance Act: Concessionaire shall
complete the required submittals contained in Appendix C and shall otherwise
comply in all respects with the Georgia Security and Immigration Compliance
Act, O.C.G.A.. § 13-10-90, et seq.
19. DELIVERY AND RESTOCHING.
19.1 Delivery and restocking hours must be coordinated with the Airport so as not to
conflict with peak traffic times. Concessionaire shall develop logistics programs
within the parameters of Airport regulations while maintaining sufficient
inventory.
19.2 All products being delivered to the secured area shall be inspected and screened at
the designated locations.
20. MISCELLANEOUS PROVISIONS:
20.1 Award and Execution of Agreement: This Agreement will not become binding
on the County and County will incur no liability under it until it has been duly
executed by Concessionaire, returned to County with all required submittals,
including insurance and bonding, executed by the Mayor, attested to by the
Municipal Clerk, approved by County Attorney as to form and delivered to
Concessionaire.
20.2 Identity of Owner and Manager: The owner of record of the property of which
the Premises is a part is the County. The person authorized to manage the
property, which includes the Premises, is the Airport Director of the Commission.
20.3 Delegation of Authority: Any act(s), whether discretionary or ministerial, that
the Airport Director is authorized or required to perform under this Agreement
may be performed by such person(s) as the Airport Director shall designate in
writing to perform such act(s).
20.4 No Contractual Relationship; No Partnership or Joint Venture:
Concessionaire will perform under this Agreement as an independent entity and
not as an agent or employee of County. No contractual relationship between
Tailwinds Augusta, LLC Concessions Agreement 29
�
County and any subtenant, subcontractor, or sub consultant is created by an
approval of County for use under this Agreement. County and Concessionaire are
not and shall not be deemed to be, for any purpose, partners or joint venturers
with each other.
20.5 Usufruct: The rights of Concessionaire hereunder constitute a usufruct, which is
not subject to levy or sale. No estate shall pass out of City. The Concessionaire
hereby agrees and acknowledges that no real property interest in all or any portion
of the Premises, including, without limitation, the Premises and portion of the
Premises required for ingress to and/or egress from the Premises shall be created
or otherwise arise out of this Agreement, expressly or by implication. The
Concessionaire shall in no event file any notice of interest in such Premises in any
real •estate registry. The City agrees that the all appurtenant equipment installed
by Concessionaire shall remain personal property of the Concessionaire.
20.6 Recording Prohibited: Neither County nor Concessionaire shall be entitled to
record this Agreement, any memorandum or short form of this Agreement or any
affidavit with respect to this Agreement.
20.7 Attorneys' Fees: If County should bring any action under this Agreement or
consult or place this Agreement, or any amount payable to Concessionaire
pursuant to this Agreement, with an attorney concerning or for enforcement of
any of County's rights hereunder, then Concessionaire agrees in each and any
such case to pay to County all costs, including, but not limited to, court costs and
reasonable attorneys' fees, incurred by County in connection therewith.
20.8 Contingent Fees: The Concessionaire has not employed or retained any
Concessionaire or person, other than a bona fide employee working for the
Concessionaire, to solicit or secure this Agreement; and the Concessionaire has
not paid or agreed to pay any Concessionaire, association, corporation, firm or
person, other than a bona fide employee working for the Concessionaire, any fee,
commission, percentage, gift or any other consideration contingent upon or
resulting from the award or making of this Agreement. For the breach or
violation of this representation and warranty and upon a finding after notice and
hearing, the City may terminate this Agreement and, at its discretion, may deduct
from fees or otherwise recover, the full amount of any such fee, commission,
percentage, gift or consideration.
20.9 Compliance with Laws: The Concessionaire will promptly observe and comply
with applicable provisions of all published federal, state, and local laws, rules and
regulations which govern or apply to the services rendered by the Concessionaire
herein, or to the wages paid by the Concessionaire to its employees.
20.10 Ethics, Gratuities And Kickbacks: Neither the Concessionaire, any subsidiary,
or any agent or other representative of the Concessionaire has given or agreed to
Tailwinds Augusta, LLC Concessions Agreement 30
give, any employee or former employee of the City or Airport or any other
person, a gratuity or an offer of employment in connection with any decision,
approval, disapproval, recommendation, preparation or any part of a procurement
requirement or a purchase request, influencing the content of any specification or
procurement standard, rendering of advice, investigation, auditing, or in any other
advisory capacity in any proceeding or application, request for ruling,
determination, claim or controversy, or other particular matter pertaining to any
procurement requirement or a contract or subcontract, or to any solicitation or
proposal for a contract or subcontract. Notwithstanding any other provision
hereof, for the breach or violation of this representation and warranty and upon a
finding after notice and hearing, the City may terminate this Agreement.
20.11 Severability: If any provision of this Agreement or the application thereof to any
person or circumstances shall become invalid �or unenforceable to any extent, such
provision shall be struck and severed and the remainder of this Agreement shall
not be affected and shall continue to be enforceable to the greatest extent of the
law. Each covenant and agreement contained in this Agreement shall be
construed to be a separate and independent covenant and agreement and the
breach of any such covenant or agreement by County shall not discharge or
relieve Concessionaire from Concessionaire's obligation to perform each and
every covenant and agreement of this Agreement to be performed by
Concessionaire.
20.12 Gender: Words of any gender used in this Agreement shall be held and
construed to include any other gender and words in the singular number shall be
held to include the plural, unless the context otherwise requires.
20.13 Time of the Essence: Time is of the essence with regard to each provision of this
Agreement.
20.14 Evidence of Authority: If Concessionaire is other than a natural person,
Concessionaire shall deliver to County such legal documentation as County may
request to evidence the authority of those signing this Agreement to bind
Concessionaire.
20.15 Drug-Free Workplace Policy: Concessionaire acknowledges that pursuant to
the Federal Drug-Free Workplace Act of 1989, the unlawful manufacture,
distribution, dispensation, possession, or use of a controlled substance is
prohibited on County's Premises.
20.16 Successors and Assigns: Each and all of the conditions and covenants of this
Agreement shall extend to and bind and inure to the benefit of County and
Concessionaire, and the legal representatives, successors and assigns of either or
both of them.
Tailwinds Augusta, LLC Concessions Agreement 31
20.17 Notices: All notices required to be given to County hereunder shall be in writing
and given by postage prepaid registered or certified mail, return receipt requested,
addressed to the Airport Director of the Airport, Office of the General Manager,
No notices shall be effective if transmitted by telex, fax or other electronic
delivery. All notices required to be given to hereunder shall be sent to the
following addresses:
Augusta Regional Airport
1501 Aviation Way
Augusta, Georgia 30906
Fax: (706) 798-1551
Attn: Gary LeTellier, Executive Director
With a copy to: City of Augusta
501 Greene St.
Ste. 302
Augusta, Georgia 30901
Attn: General Counsel
Fax: (706) 842-5556
Concessionaire: Tailwind Deli News and Gifts, Inc.
1740 Airport Boulevard
Suite 16
Wilmington, NC 28405
Attn: Doug Delise, Managing Partner
Telephone: (910) 343-9881
Fax: (910) 401-1174
Email: TailwindGifts@aol.com
20.18 Interpretation: The language of this Agreement shall be construed according to
its fair meaning, and not strictly for or against either County or Concessionaire.
This Agreement shall be construed and performed according to the laws of the
State of Georgia. In the event of a dispute with regard to interpretation of any
provision of this Agreement, the parties agree to bring suit and be subject to the
jurisdiction of the Richmond County Superior Court.
20.19 Section Headings: The section headings contained herein are for the
convenience of County and Concessionaire and are not to be used to construe the
intent of this Agreement or any part thereof, nor to modify, amplify, or aid in the
interpretation or construction of any of the provisions thereof.
20.20 Reference to Clause or Section Entitled " ": When reference in this
Agreement is made to a specific clause with a specific title set forth in a section
Tailwinds Augusta, LLC Concessions Agreement 32
heading or section number, such reference will include all sections and
subsections of such clause.
20.21 Integrated Agreement, Modification: This Agreement contains all the
' agreements of the parties and cannot be further amended or modified except by
written agreement. If the parties hereto previously have entered into or do enter
into any other lease, license, permit or agreement covering Premises or facilities
at the Airport, this Agreement and the terms, conditions, provisions and covenants
hereof shall apply only to the Premises herein particularly described, and this
Agreement or any of the terms, conditions, provisions or covenants hereof shall
not in any way or in any respect change, amend, modify, alter, enlarge, impair or
prejudice any of the rights, privileges, duties or obligations of either of the parties
hereto under or by reason of any other said lease, permit, license or other
agreement between said parties.
20.22 Force Majeure: Neither party shall be deemed to be in breach of this Agreement
by reason of a failure to perform any of its obligations hereunder to the extent that
such failure is caused by strike or labor troubles, unavailability of materials or
utilities, riots, rebellion, terrorist attack, insurrection, invasion, war, action or
interference of governmental authorities, acts of God, or any other cause whether
similar or dissimilar to the foregoing which is reasonably beyond the control of
the parties (collectively "Force Majeure Event"). If either party claims the
occurrence of a Force Majeure Event, such party must promptly give notice to the
other of the existence of such Force Majeure Event, the nature and extent thereof,
the obligation hereunder affected thereby and the actions to be taken to abate or
terminate such event. Notwithstanding the existence of any Force Majeure Event,
this Clause shall not apply to and Concessionaire shall not be relieved of its
obligation to pay rent or other sums due hereunder, such obligation being absolute
and unconditional.
20.23 Incorporation by Reference: All exhibits, appendices, attachments, riders and
addenda referred to in this Agreement are incorporated into this Agreement and
made a part hereof for all intents and purposes. Additionally, the proposal
submitted by Concessionaire in response to the RFP (the "Proposal") is
incorporated into this Agreement into this Agreement and made a part hereof for
all intents and purposes. Concessionaire shall perform all of its obligations under
this Agreement as provided herein and as described by Concessionaire in the
Proposal. In the event of any inconsistency between this Agreement and such
Proposal, this Agreement shall control.
[SIGNATURES ON FOLLOWING PAGEJ
Tailwinds Augusta, LLC Concessions Agreement 33
CONCESSIONAIRE: COLTNTY:
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; Corporate Secretary/Assistant Approve�"�,,�.���� �� �
Secretary (Seal) ..
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Chairman, Aviation Commission
Approved As To Form:
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E-ex�+ Attorney
Tailwinds Augusta, LLC Concessions Agreement 34
Exhibit A
Map of Premises
Tailwinds Augusta, LLC Concessions Agreement 35
Exhibit B
Insurance and Bonding
Requirements
Tailwinds Augusta, LLC Concessions Agreement 36
Exhibit C
Georgia Security and Immigration
Compliance Act Submittals
Tailwinds Augusta, LLC Concessions Agreement 37
Exhibit D
Equipment provided by
the County
Tailwinds Augusta, LLC Concessions Agreement 38