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Airport Food and Beverage Management Services
Request for Proposal
Des Moines International Airport
5800 Fleur Drive
Des Moines, IA 50321
All proposals are due on or before 10:30am, CST, September 30, 2016, and shall
be valid for 180 days from the RFP due date.
One original and four (4) copies of the proposal shall be submitted at:
Des Moines Airport Authority
Attn: Contracts Manager
5800 Fleur Drive, Suite 207
Des Moines, IA 50321
(515) 256-5100
Requests for clarification regarding this RFP must be made to the Contracts
Manager at [email protected] no later than 3:00 pm CST, August 5,
2016. Proponents wishing to respond to this RFP or receive addendums must
notify the Contracts Manager no later than 3:00 pm CST, August 5, 2016. Written
answers to requests for clarification will be provided to all persons making a
request no later than 5:00pm CST, August 12, 2016.
Electronic copy of this Request for Proposal is available by contacting the
Contracts Manager at [email protected].
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AIRPORT FOOD AND BEVERAGE MANAGEMENT SERVICES
DES MOINES INTERNATIONAL AIRPORT
DES MOINES, IOWA
PROPOSALS are being requested for a Management Services Agreement for the Airport Food
and Beverage operations at the Des Moines International Airport. These proposals will be
opened by the Contracts Manager at the above specified date and time and a recommendation
from Authority staff will be presented to the Des Moines Airport Authority Board.
1. On July 28, 2016, at 10:30 A.M. CST, a mandatory pre-proposal meeting will be held in
the Cloud Room of the Airport Terminal Building to receive inquiries concerning this
request for proposals. Participants are encouraged to submit questions in advance to the
Contracts Manager at [email protected].
2. A written response to all inquiries in the form of an addendum will be forwarded to all
participating proposers.
3. In all cases, no verbal communications will override written communications and only
written communications are binding.
4. The Des Moines Airport Authority reserves the right to schedule proposer interviews at
its discretion in order to fully evaluate competing proposals.
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REQUEST FOR PROPOSALS SUMMARY
AIRPORT FOOD AND BEVERAGE MANAGEMENT SERVICES
DES MOINES INTERNATIONAL AIRPORT
DES MOINES, IOWA
2016
1. REQUEST FOR PROPOSALS
The Des Moines Airport Authority ("Authority"), as owner and operator of the Des
Moines International Airport ("Airport"), hereby requests proposals from interested and
qualified food and beverage operators ("Proposer") desiring to operate the Food and
Beverage Facilities and provide related services at the Airport for a minimum period of
five years commencing on or around July 1, 2017. The management services provided
will be in accordance with the specific provisions of a management agreement, a sample
copy of which is attached ("Sample Agreement").
2. PROPOSER QUALIFICATIONS
To be considered qualified, the Proposer must demonstrate at least five years successful
experience in the management and operation of a public restaurant (or group of
restaurants) that involves gross receipts of $4,000,000 or more per year. Experience in
operating restaurants in an airport environment is not mandatory, but will be given
additional consideration. The Authority reserves the right to disqualify any Proposer
who, during the past five years, has had an agreement or contract canceled by a public
agency for cause including either failure to perform or illegal activity.
3. BACKGROUND
The Airport is a commercial service airport serving Central Iowa with facilities to
accommodate all phases of air transportation including scheduled air service, general
aviation, and air cargo operators. During calendar year 2015, the Airport accommodated
approximately 2.4 million airline passengers, 83,900 take-offs and landings, and 67,900
U. S. tons of air freight and mail.
The Airport is situated on approximately 2,800 acres of land on the southwest side of Des
Moines, Iowa. Major tenants of the Airport include the Des Moines Airport Authority,
six commercial passenger airlines, two major air cargo airlines, seven car rental brands,
restaurant and gift shop concessions, three general aviation operators, U.S. Customs
Office, FAA Air Traffic Control Tower, FAA Airways Facilities Office, and the Iowa Air
National Guard 133rd Fighter Wing Headquarters.
The Authority is in the early stages of replacing its nearly 70-year-old terminal building.
Space for food and beverage operations—as well as other airport concessions—is limited
and expansion is not financially feasible.
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4. COMPLETING AND SIGNING PROPOSALS
A. Each Proposer must complete and sign their proposal by an authorized official
representing the company. The Proposer's full business address must be given.
Proposals by partnerships must be signed with the partnership name by one of the
general partners. Proposals by corporations must bear the proper corporate name,
state of incorporation, and signature and designation of an officer authorized to
bind it in the matter.
B. Each proposal must be tabbed, ordered, and submitted in the following format:
TAB SUBJECT I. Executive Summary (including how Proposer meets minimum
requirements, special corporate competencies that would contribute to the
success of the operation, etc.)
II. Concept and Menu
III. Design and Construction Budget
IV. Pro Forma Operating Statements (one for each unit in the concept)
V. Management Fee Proposal
VI. Cash Control and Management Plan
VII. Proposed Management Staff (including local general manager and
corporate staff who would have direct oversight of DSM’s operations)
VIII. References
IX. Required Documents (i.e., Non-Collusion Affidavit and Proof of
Insurance)
C. By submission of the proposal, the Proposer agrees to the terms set forth in the
Sample Agreement, as they may be modified to become the final Agreement
between the parties as set forth in Section 5, General Provisions.
5. GENERAL PROVISIONS
A. Changes in the Sample Agreement that are unsubstantial in nature may be made
between the selected Proposer and the Authority.
B. If there is any conflict between the wording in this Summary and the Sample
Agreement; the Sample Agreement will prevail.
C. If there is any conflict between the wording in this Summary and the
STANDARD PROVISIONS AND REQUIREMENTS FOR REQUESTS FOR
PROPOSALS (RFPs) the STANDARD PROVISIONS AND REQUIREMENTS
FOR REQUESTS FOR PROPOSALS (RFPs), will prevail.
D. The selected Proposer will be required to use the Airport's communications
network for any internet and telecommunications needs.
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6. SCOPE OF OPERATION
A. The selected Proposer will be required to provide management services and the
personnel necessary to efficiently operate the Airport’s food and beverage
facilities on a daily basis. Subject to provisions of the final agreement, the
selected Proposer shall be required, at a minimum, to provide the following
services: personnel management, creation of food and beverage menus, pricing,
cleaning and maintenance of the food and beverage facilities and equipment,
purchasing and maintenance of food and beverage inventories, provision of on-
site catering for the Authority, maintenance of all necessary licenses and permits
to operate all the food and beverage facilities, cash handling and controls, all
accounting for the food and beverage facilities.
B. The selected Proposer will be responsible for the cleaning and maintenance of the
food and beverage facilities and equipment as specified in the included Sample
Agreement. The cost of maintenance, cleaning and repairs, including personnel,
equipment, and supplies are considered operating expenses as provided for under
Article 15 of the Sample Agreement.
C. All revenue derived from food and beverage sales will remain the property of the
Authority; consequently the selected Proposer will be required to comply with
rigid control procedures as may be prescribed. In accordance with provisions of
the final agreement, and subject to the approval of the Executive Director, salaries
and specified direct operating expenses will be reimbursable to the selected
Proposer on a monthly basis.
D. The selected Proposer will assist the Authority in the redesign and remodel of the
food and beverage facilities as provided in the conceptual layouts of the
Proposer’s proposal. The selected Proposer will be expected to provide expertise
specific to the design and construction of food and beverage facilities.
7. FINANCIAL ACCOUNTING RESPONSIBILITIES
The selected Proposer shall agree to the accounting procedures set forth in the Sample
Agreement. In addition, Proposer is required to implement procedures and practices
designed to provide a secure environment for handling cash receipts, deposits, and credit
card processing, including retention of subcontractors to help fulfill those responsibilities.
Management practices of Proposer must allow for effective use of personnel and
resources. All formal reports presented to the Authority must be concise, complete and
accurate.
The selected Proposer will be responsible for payment of operating expenses, to be
reimbursed by the Authority on a monthly basis. To assist with operating expenses at the
beginning of the management agreement, the Authority will provide the selected
Proposer with an operating advance, to be repaid at the conclusion of the agreement.
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8. FACILITIES
The food and beverage facilities at the Airport include the following:
Pre-security restaurant and bar with common kitchen and dining space (appx. 7,000
SF)
Post-security full service and fast casual restaurants served from a common kitchen
(appx. 6,300 SF)
Post-security coffee shop with limited kitchen (appx. 360 SF)
Post-security retail space that can be used to sell prepared items from any kitchen (no
plumbing or sanitation, appx. 215 SF)
Pre- and post-security storage space with walk-in coolers. (total appx. 3,500 SF)
Additionally, there is another 700 square feet of space contiguous to the existing pre-
security food and beverage facilities that may be available for use (“Add/Alternate
Area”). Proposers must include the Add/Alternate Area under an additional/alternate
proposal, describe a plan of use for it (stand-alone facility, extension of pre-security
restaurant concept, etc.) and the amount of additional revenue it would be expected to
provide if used for food and beverage operations.
During the term of the Agreement, the Authority reserves the right to make any changes
to the food and beverage facilities necessary to accommodate the public or to provide an
improved food and beverage experience. Any future additional responsibilities assumed
by the selected Proposer will be addressed by an amendment to the agreement. See
Exhibit A of this document for further details on the location of the facilities.
9. CONSTRUCTION
The selected Proposer will assist the Authority in selecting contractors, architects, and
designers to redesign and remodel the food and beverage facilities to operate under this
agreement. The Authority will provide up to one million dollars ($1,000,000) for the
redesign and remodel, with additional investment to be considered based on the proposal
and under negotiation with the Authority.
10. EMPLOYEE QUALIFICATION AND SPECIFICATIONS
The successful Proposer shall select honest, competent, and courteous personnel to be
employed at the Airport and shall train, supervise and maintain proper surveillance over
all its employees to insure their integrity and the maintenance of an honest and high
standard of service to the public, of which standard will be determined at the sole
discretion of the Authority. The successful Proposer shall follow its hiring process set
forth in its proposal and shall perform reasonable employment screening including (but
not limited to) requiring all newly hired employees to submit to the Airport's security
badge issuance process and criminal background review. The selected Proposer shall be
responsible to insure that all requirements set forth in the final Agreement concerning
employees are met.
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11. ACTIVITY SUMMARY
A summary of selected activity related to food and beverage sales at the Airport is as
follows, with a further breakdown of food and beverage gross revenues beneath:
Calendar
Year
Enplaned
Passengers
Gross F&B
Revenues
2011 959,997 $3,443,088
2012 1,038,484 $3,686,549
2013 1,101,524 $4,411,786
2014 1,157,235 $4,674,199
2015 1,180,764 $5,140,414
Calendar
Year
Pre-Security
Food
Pre-Security
Alcohol
Post-Security
Food
Post-Security
Alcohol
Specialty
Coffee
2011 $495,026 $137,675 $1,603,145 $808,455 $398,787
2012 472,597 124,708 1,746,367 834,329 509,177
2013 472,900 118,872 1,815,524 997,723 1,006,768
2014 448,346 125,332 1,783,499 1,119,025 1,197,997
2015 431,029 138,568 2,047,006 1,339,432 1,184,380
12. SELECTION CRITERIA (Formal Proposal and Interview)
It will be within the sole discretion of the Authority to determine the viability and
soundness of each proposal, and to accept or reject a proposal in its entirety or in part.
Additionally, the Authority may schedule interviews with individual Proposers to assist
in evaluating their proposals and selecting the winner.
Concept, Design, and Marketing Plan 0 - 20 Points Proposers are expected to provide a basic concept, design sketches, marketing plan, and
proposed menu for each food and beverage location at the airport.
The Authority will provide up to $1,000,000 (one million dollars) of funding for redesign
and remodel of all of the food and beverage locations. Further capital expenditure may
be considered based on the proposal. In addition to concept and layout plans, Proposers
will provide a detailed construction budget outlining how those funds will be used to
execute those plans so as to improve the airport’s food and beverage offerings and
maximize revenues. See Exhibit D for a breakdown of remodeling costs that are eligible
for reimbursement.
Points will be assigned based on the creativity of the concept and design, the quality of
the construction budget, and menu suggested by the Proposer.
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Financial Plan 0 – 20 Points
Proposer must provide a pro forma operating statement for each unit in its concept that
indicates projected gross sales and expenses for that unit. The pro formas will be
evaluated by the Authority for reasonableness, understanding of the market and proposed
concept, viability of the proposed operation, and ability to fund continued operations
using cash flow from the unit’s business. Examples from other airports, street side
restaurants, or shopping centers where the proposal has been previously successful will
be given consideration.
Management Fee Proposal 0 - 20 Points The Proposer’s management fee is to be defined as a percentage of net revenues as
defined in the Sample Agreement. The lowest management fee proposal submitted will
be assigned 20 points. All other proposals will each be assigned points on a statistical
basis corresponding to its position between the lowest and highest fee proposals.
Cash Control and Management System 0 - 10 Points
A summary of procedures used to control and secure the receipt of daily cash and credit
card receipts, including integration with the Proposer's financial reporting system, is to be
included with the proposal. The Authority will obtain merchant accounts for credit card
transactions. Points will be awarded based on the comprehensiveness and soundness of
the system.
Experience and References 0 - 20 Points
Points will be assigned based on Proposer's successful experience in managing and
operating restaurant/food and beverage facilities over the past five years. Particular
weight will be given to demonstrated understanding of airport-based food and beverage
service, favorable references, and qualifications of the key personnel, including the local
manager.
Additional Factors 0 - 10 Points Additional points will be assigned based on such items as being a certified disadvantaged
business enterprise (DBE) or having a DBE subcontractor included in the proposal,
having a successful prior concession or management agreement with the Authority, and
having any other special equipment, facilities, or capabilities that would contribute to the
success of the operation.
13. REQUIRED PROVISIONS
The final executed agreement will contain provisions required by the FAA, including but
not limited to: non-discrimination, civil rights, exclusive rights, airport concessionaire
disadvantaged business enterprise (ACDBE) and will be subordinate to agreements
between the Authority, the United States of America, and the state of Iowa.
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14. INSURANCE AND INDEMNITY REQUIREMENTS
The selected Proposer shall purchase and maintain insurance in accordance with the
insurance requirements set forth in the attached Sample Agreement to protect the selected
Proposer and Authority throughout the duration of this Agreement. The selected
Proposer shall not commit any act which might invalidate any policy of insurance. The
selected Proposer shall defend, indemnify and hold harmless the Authority in accordance
with the indemnification requirements set forth in the attached Sample Agreement. The
selected Proposer shall be subject to all terms and provisions set forth in the Insurance
Endorsements in the Sample Agreement thereto.
15. EXCLUSIVE AGREEMENT
The Agreement that results from this Request for Proposals constitutes the exclusive
Agreement between the parties and incorporates the provisions of these terms and
conditions, and supersedes any previous agreements or contracts, either written or oral.
The terms and conditions may not be altered without prior written consent of both parties.
THIS SUMMARY IS INTENDED TO BE A BRIEF OVERVIEW OF THE PROPOSAL
PROCEDURES AND AGREEMENT PROVISIONS FOR THE MANAGEMENT SERVICES
FOR THE FOOD AND BEVERAGE FACILITIES AT THE DES MOINES
INTERNATIONAL AIRPORT, DES MOINES, IOWA. THE PROSPECTIVE PROPOSERS
SHOULD REVIEW THE SAMPLE AGREEMENT FOR THE ACTUAL PROVISIONS THAT
WILL BE APPLICABLE.
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Exhibit A (1 of 3)
FOOD AND BEVERAGE LOCATIONS
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Exhibit A (2 of 3)
PRE-SECURITY FOOD AND BEVERAGE SUPPORT SPACE
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Exhibit A (3 of 3)
POST-SECURITY FOOD AND BEVERAGE SUPPORT SPACE
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EXHIBIT B
STANDARD PROVISIONS AND REQUIREMENTS
FOR REQUESTS FOR PROPOSALS (RFPs)
1. Proposal Must Be Signed by Proposer or Its Officer or Designated Agent.
A proposal submitted in response to the Authority's Request for Proposals shall be signed
by the Proposer if an individual, or by an officer of the proposing firm, or by a designated
agent empowered to bind the firm in a contract.
2. Partnership and Joint Venture Proposals; Use of Corporate Name or Fictitious
Corporate Name.
A. If a proposal is submitted by two or more persons acting as a partnership, the
names of the persons appearing on the proposal must be followed by the notation
-- "a partnership", or words of similar import.
B. If a proposal is submitted by two or more persons or corporate entities as a joint
venture, the names of the persons or entities appearing on the proposal must be
followed by the notation -- "a joint venture". In that instance, the proposal must
also be signed by all such persons and/or the authorized agents of all such entities.
Joint venture proposals shall identify which person or firm will act as lead person
of firm. Any proposal from a joint venture that fails to meet the above
requirements will be subject to rejection.
C. In submitting a proposal and in entering into a contract in response to an RFP, a
corporate entity may use its fictitious corporate name in addition to its legal corporate
name, if the fictitious name is appropriately registered with the Iowa Secretary of
State. Proposers are advised to exercise care in the use of any fictitious name for their
firms.
3. Communication with Authority During RFP Process
Upon issuance of this RFP, Proposers shall not communicate in any way with any
Authority employee other than the Contracts Manager regarding the terms or provisions
of this RFP. Questions about this RFP are to be in writing and directed to the Contracts
Manager, and will either be addressed at the pre-proposal meeting described in section 4
below, or in a written addendum to the RFP to be issued after the meeting.
4. Pre-Proposal Meeting.
A mandatory pre-proposal meeting will be held at the time and place listed in the RFP
summary (page 2). All persons or entities interested in or intending to respond to the
RFP are required to attend the pre-proposal meeting. At the meeting, any person or entity
interested in or intending to respond to the RFP may present, orally or in writing,
inquiries as to any term, provision, or requirement of the RFP. Authority staff will be
present at the meeting to discuss the inquiries raised or presented to the Authority at the
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meeting or presented to the Authority in writing as provided in paragraph 3 above.
Remarks made during discussions at the meeting by any Authority official or employee
will not be binding upon the Authority or be deemed to be the Authority's official
response or position regarding any inquiries discussed at said meeting.
5. Authority's Response to Proposer Questions, Objections, and Requests for
Clarification or Interpretation
The Authority's Contracts Manager will respond in writing to all inquiries presented to
the Authority as provided in section 3, above, or raised or presented at the pre-proposal
meeting as provided in section 4, above. The Authority's written response will be
directed to all known potential Proposers. Only the Authority's written responses will be
considered to be the Authority's official response binding upon the Authority. In addition
to making a written response, the Authority may issue addenda amending the RFP by
changing or deleting the provisions of, or adding provisions to, the RFP.
6. Collusion Affidavit Required.
Any agreement or collusion among Proposers or prospective Proposers, in restraint of
freedom of competition by agreement to propose a fixed price or otherwise will render
the proposals of such Proposers void. Proposers will be required to execute and submit
with their proposals a Non-Collusion Affidavit in the form appended hereto as
Attachment 1. Any disclosure by one Proposer to another Proposer of the content of a
proposal in advance of the submission of proposals will render the proposals of both such
Proposers void, and may at the discretion of the Contracts Manager render the RFP
proceedings void.
7. Proposals Not Confidential; Proposer Requests for Confidentiality under Iowa
Open Records Law, Chapter 22 of Iowa Code; Disclosure of Proposal Content.
Under Iowa Code chapter 22, "Examination of Public Records", all records of a
governmental body are presumed to be public records, open to inspection by members of
the public. Section 22.7 of the Iowa Code sets forth a number of exceptions to that
general rule, establishing several categories of "confidential records". Under this
provision, confidential records are to be kept confidential, "unless otherwise ordered by a
court, by the lawful custodian of the records, or by another person duly authorized to
release such information". Among the public records which are considered confidential
under this Iowa Code provision are the following:
3. Trade secrets which are recognized and protected as such by law.
6. Reports to governmental agencies which, if released, would give advantage to
competitors and serve no public purpose.
The Authority, as custodian of the proposal submitted in response to a Request for
Proposals, may, but is not required, to keep portions of such proposals confidential under
exceptions 3 and 6 noted above. If a responding individual or company determines that a
portion or portions of its proposal constitute a trade secret, or should otherwise be kept
confidential to avoid giving advantage to competitors, a confidentiality request may be
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submitted with the proposal identifying which portion or portions of the proposal or bid
should be kept confidential and why. The burden will be on each individual Proposer to
make a confidentiality request and to justify application of a confidentiality exception to
its proposal. The Authority will not under any circumstance consider the entire proposal
to be a confidential record.
If a request is made by a member of the public to examine a proposal including the
portion or portions for which a confidentiality request has been made, the Authority will
notify the Proposer and will keep confidential that portion of the proposal covered by the
confidentiality request, pending action by the Proposer requesting confidentiality to
defend its request. In that notification, the Proposer requesting confidentiality will be
given not more than five calendar days within which to file suit in Polk County District
Court seeking the entry of a declaratory order and/or injunction to protect and keep
confidential that portion of its proposal. Absent such action by a Proposer requesting
confidentiality the entry of a court order declaring such portion or portions of the
proposal confidential, the entire proposal will be released for public examination. The
Proposer shall indemnify the Authority for any attorneys’ fees and court costs the
Authority may incur or that be awarded against it as a result of complying with the
Proposer's request for confidentiality.
8. Proposers to Provide Evidence of Ability to Obtain Insurance and/or Bond.
Each Proposer shall provide evidence satisfactory to the Authority that it can obtain the
required insurance coverages and/or bond. For this purpose, each Proposer shall submit
with its proposal the certification form appended to this RFP as Attachment 2, in which
the Proposer's insurance agent and/or bonding agent certifies that the Proposer can obtain
the required insurance coverages and/or bond. Failure to submit the required
certifications form will be grounds for rejection of the proposal.
9. Procedure for Evaluation and Recommendation as to Selection of Best Proposal.
A. Competing proposals submitted in response to the RFP will be evaluated by Authority
staff. The Authority staff will utilize the evaluation criteria and scoring methodology
set forth in this RFP in making its determination as to the best proposal.
B. Upon completing its evaluation and the scoring of competing proposals, a Notice
of Intent to Award will be provided to all competing Proposers by mail, FAX or
e-mail at least five days prior to the appeal deadline set forth in the Notice of
Intent to Award.
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10. Appeal of Authority Staff Recommendation
A Proposer who is aggrieved by the Authority staff’s determination and recommendation
as to the selection of the best proposal, may appeal such determination and
recommendation by filing a written objection to the Authority within the appeal deadline
set forth in the Notice of Intent to Award. Such objections may be filed in person or by
mail, FAX or e-mail. In its written objection, the appealing Proposer shall set forth all of
its objections to the Authority staff’s recommendation and all arguments in support of its
objections, and shall attach all documentation supporting its objections upon which it
intends to rely.
The Authority Board may, in its discretion, hear presentations by the appealing Proposer
and by competing Proposers with respect to the appealing Proposer's objections. If the
Authority Board agrees to hear presentations, it may limit their length and all Proposers
will be given an equal opportunity to speak. The Authority Board's decision will be final.
11. Authority Board Consideration of Authority Staff Recommendation as to Best
Proposal
When the Authority staff’s recommendation comes before the Authority Board for
consideration, the Board may request that the recommended Proposer appear before the
Board to give a presentation or to answer questions regarding its proposal. Competing
Proposers will not be allowed to speak at that time unless a prior request has been made
by such a Proposer and permission to speak granted, or unless an Authority Board
member requests that the competing Proposer be allowed to speak and the Board
consents to such request.
12. Rejection of Proposals.
The Authority reserves the right to reject any or all proposals in whole or in part received
in response to the RFP. The Authority will not pay for any information requested in the
RFP, nor is it liable for any cost incurred by a Proposer in responding to the RFP.
13. Formation of Contract.
A. The successful Proposer shall enter into a contract with the Authority in substantially the
form of the attached Sample Agreement.
B. Upon the Authority's approval of the evidence of insurance submitted by the successful
Proposer (if required by the RFP), and upon the Authority's legal representative's review
of the form of contract executed by the Proposer, and of the performance bond submitted
by the Proposer (if required by the RFP), the Authority Board Chairperson will execute
the contract as directed by the Authority Board.
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14. Proposal Obligations.
The contents of this RFP, of a proposal submitted in response thereto, and of the
Authority's official response to a question, objection, or request for clarification or
interpretation regarding the RFP, and of any exception to the RFP submitted by the
successful Proposer and accepted by the Authority, will become part of the contractual
obligation and deemed incorporated by reference into the ensuing contract.
15. Disposition of Proposals.
All proposals submitted in response to the RFP become the property of the Authority and
will not be returned.
16. Assignment of Contract Prohibited Unless Approved in Writing by the Authority.
No contract awarded pursuant to RFP is assignable without the written consent of the
Authority.
17. Title VI Solicitation Notice
The Des Moines Airport Authority, in accordance with the provisions of Title VI of the
Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d-4) and the
Regulations, hereby notifies all proposers that it will affirmatively ensure that any
contract entered into pursuant to this advertisement, disadvantaged business enterprises
will be afforded full and fair opportunity to submit proposals in response to this invitation
and will not be discriminated against on the grounds of race, color, or national origin in
consideration for an award.
18. Attachments.
A. Attachment 1: Non-Collusion Affidavit
B. Attachment 2: Proposer's Certification Regarding Insurance and/or Bond
Certification of Proposer's Insurance Agent Regarding Proposer's
Ability to Obtain Required Insurance Coverages;
Certification of Proposer's Surety Agent Regarding Proposer's
Ability to Obtain Required Bond.
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EXHIBIT C
GENERAL TERMS AND CONDITIONS
1. Exclusive Contract.
The contract that results from this Request for Proposals constitutes the exclusive
contract between the parties and incorporates the provisions of these terms and
conditions, and supersedes any previous agreements or contracts, either written or oral.
The terms and conditions hereof may not be altered without prior written consent of both
parties.
2. Assignment.
Successful Proposers may not assign contracts or purchase orders to any party (including
financial institutions) without written permission of the Executive Director of the
Authority or his/her designee.
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EXHIBIT D
AIRLINE PASSENGER ACTIVITY SCHEDULE
NOTE: This schedule is meant only to assist Proposers in estimating staff levels and scheduling
for a typical week’s passenger traffic load at Des Moines International Airport. It is not intended
to be a guarantee of passenger traffic in the future, as schedules and seat capacity are determined
solely by the airlines serving the Airport.
Sun Mon Tue Wed Thu Fri Sat
June 5, 2016 June 6, 2016 June 7, 2016 June 8, 2016 June 9, 2016 June 10, 2016 June 11, 2016
Hub Time Dep. Seats Dep. Seats Dep. Seats Dep. Seats Dep. Seats Dep. Seats Dep. Seats
0000 0 0 0 0 0 0 0
0100 0 0 0 0 0 0 0
0200 0 0 0 0 0 0 0
0300 0 0 0 0 0 0 0
0400 0 0 0 0 0 0 0
0500 249 269 269 269 190 196 120
0600 410 587 575 536 577 538 375
0700 420 496 496 496 566 496 420
0800 243 226 255 255 76 126 254
0900 303 254 254 431 431 254 339
1000 0 166 0 0 0 166 0
1100 286 328 360 328 386 306 394
1200 362 206 143 206 362 206 193
1300 228 388 209 209 202 368 196
1400 178 178 50 178 278 298 178
1500 343 239 355 339 139 139 215
1600 340 212 212 362 288 288 288
1700 241 369 369 241 341 341 126
1800 193 525 321 370 213 545 50
1900 257 257 257 257 377 377 150
2000 50 50 50 216 166 0 0
2100 166 0 0 0 0 0 0
2200 0 0 0 0 0 0 0
2300 0 0 0 0 0 0 0
TOTAL 4,269 4,750 4,175 4,693 4,592 4,644 3,298
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EXHIBIT E
NON-COLLUSION AFFIDAVIT
The Proposer hereby certifies:
1. That this proposal is not affected by, contingent on, or dependent on any other proposal submitted for
any improvement at the Des Moines Airport Authority; and
2. That no individual employed by the Proposer was paid or will be paid by any person, corporation,
firm, association, or other organization for soliciting the bid, other than the payment of their normal
compensation to persons regularly employed by the Proposer whose services in connection with the
making of this proposal were in the regular course of their duties for the Proposer; and
3. That no part of the compensation to be received by the Proposer was paid or will be paid to any
person, corporation, firm, association, or other organization for soliciting the bid, other than the
payment of their normal compensation to persons regularly employed by the Proposer whose services
in connection with the making of this proposal were in the regular course of their duties for the
Proposer; and
4. That this proposal is genuine and not collusive or sham; that the Proposer has not colluded, conspired,
connived or agreed, directly or indirectly, with any other Proposer or person, to put in a sham
proposal or to refrain from making a proposal, and has not in any manner, directly or indirectly,
sought, by agreement or collusion, or communication or conference, with any person, to fix the
proposal price of Proposer or of any other Proposer, or to otherwise restrain freedom of competition,
and that all statements in this proposal are true; and
5. That the individual(s) executing this proposal have the authority to execute this proposal on behalf of
the Proposer.
Proposer
Signature
By
Name (Print/Type)
Title
Street Address
City, State, Zip Code
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EXHIBIT F
CERTIFICATION OF PROPOSER'S INSURANCE AGENT REGARDING
PROPOSER'S ABILITY TO OBTAIN REQUIRED INSURANCE COVERAGE
I hereby certify that my client, as identified below, will be able to meet all of the insurance
requirements of Article 13 of the Sample Agreement, has been advised of any additional costs
associated with doing so, and has agreed to obtain such coverages if selected as the successful
proposer of the RFP to which my client has responded:
Legal Name of Proposer:
_______________________________________________________________
Name/Address/Phone/FAX # of Insurance Agency:
______________________________________________________________
______________________________________________________________
______________________________________________________________
Phone_________________________FAX____________________________
Name of Agent/Broker (Print):
______________________________________________________________
Signature of Agent/Broker:
______________________________________________________________
Date of Signature: _______________________________________________
Signature and stamp of Notary Republic
_______________________________________________________________
[SUCCESSFUL PROPOSER]
AGREEMENT FOR MANAGEMENT SERVICES AIRPORT FOOD AND BEVERAGE OPERATIONS
DES MOINES INTERNATIONAL AIRPORT
DES MOINES AIRPORT AUTHORITY DES MOINES INTERNATIONAL AIRPORT
5800 FLEUR DRIVE, ROOM 207 DES MOINES, IOWA 50321-2854
TABLE OF CONTENTS
Article Description Page # 1 DEFINITIONS
1.1 Definitions 2 1.2 Agreement 3
2 DUTIES OF OPERATOR
2.1 Duties and Responsibilities 3 2.2 Limitations on Operator’s Authority 5
3 TERM OF AGREEMENT 3.1 Initial Term 6 3.2 Optional Terms 6 4 OPERATOR COMPENSATION 6
5 HOURS OF OPERATION
5.1 Hours of Operation 6 5.2 Changes to Hours of Operation 6
6 OPERATIONS 6.1 Operations Manual 7 6.2 Menu and Pricing 8 6.3 Employee Discounts 8 6.4 Independent Contractor 8
7 CLEANING, MAINTENANCE, AND REPAIR 7.1 General Maintenance and Cleaning 9 7.2 Pest Control 9
8 RIGHT TO INSPECT AND MAKE REPAIRS 10 9 IMPROVEMENTS
9.1 Improvement Proposal 10 9.2 Condition of Premises 10 9.3 Improvement Financial Obligation 11 9.4 No Liens 11 9.5 Overall Construction Program 11 9.6 Design Approval 11 9.7 Adherence to Plans and Specifications 11 9.8 Future Work 11 9.9 Building Codes 12
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Article Description Page #
10 STANDARDS OF SERVICE AND PERSONNEL 10.1 Service Standards 12 10.2 Operator’s Representative 12 10.3 Manager 12 10.4 Employee Qualifications 12 10.5 Staffing 13 10.6 Employee Health Insurance, Life Insurance, and
Retirement Benefits 13 10.7 Gratuities 14 10.8 Employee Parking 14
11 DISADVANTAGED BUSINESS ENTERPRISE (DBE) 11.1 Policy 14 11.2 DBE Goal 14 11.3 Assurance 14 11.4 Inclusion of DBE Discrimination Provision in
Sub-Agreements 14 11.5 Compliance with DBE Requirements 15 11.6 Maximum Opportunity to Participate 15
12 ENVIRONMENTAL REGULATIONS
12.1 Environmental Representations 16 12.2. Violations 16 12.3. Fines Resulting From Violations 16 12.4 Storm Water Regulations 16 12.5 Chemicals 16
13 INSURANCE AND INDEMNIFICATION 13.1 General 17 13.2 Insurance Requirements 17 13.3 Indemnification 19 13.4 Waiver of Subrogation Provision 20
14 ACCOUNTING AND RECORDS 14.1 Accounting System 20 14.2 Bank Account 22 14.3 Additional Services for Operator 22 14.4 Correctness of Reports 22 14.5 Preservation of Reports 23 14.6 Approval of Operator's Annual Budget 23
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Article Description Page # 15 PAYMENT OF EXPENSES
15.1 Operating Expenses 23 15.2 Miscellaneous Expenses 24 15.3 Working Capital Advance 24
16 ASSIGNMENT
16.1 Authority Consent 25 16.2 Transfer of Stock 25 16.3 Change in Corporate Name 25 16.4 Subcontracting 25
17 TERMINATION
17.1 Termination 25 17.2 Bankruptcy 26 17.3 Final Decision 26
18 FAA PROVISIONS 18.1 Non-Discrimination 26 18.2 List of Pertinent Nondiscrimination Acts and Authorities 27 18.3 Civil Rights 28 18.4 Exclusive Rights 28 18.5 Subordination to Agreements 29
19 GENERAL PROVISIONS
19.1 Rules, Regulations, and Policies 29 19.2 Compliance with Law 29 19.3 Reservations of Rights 29 19.4 Successors and Assigns Bound by Covenant 29 19.5 Warranty 29 19.6 Governing Law, Forum and Disputes 29 19.7 Nonwaiver of Rights 30 19.8 Severability 30 19.9 Force Majeure 30 19.10 Entire Agreement 30 19.11 Amendments 30 19.12 Licenses and Permits 30 19.13 Taxes and Assessments 30 19.14 Compliance with Federal Aviation and Transportation
Security Regulations 31
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Article Description Page #
19.15 Right to Amend 31 19.16 War or National Emergency 32 19.17 Subordination to Bond Ordinance 32 19.18 American with Disabilities Act 32 19.19 Agreement Construction 32 19.20 Representations of Parties 32 19.21 No Third Party Beneficiaries 32 19.22 Notices 32 19.23 Waiver of Visual Artist Rights 33 19.24 Liens 33 19.25 Authority’s Right to Make Good Default 34 19.26 Rights and Remedies Cumulative 34 19.27 Certification 34 19.28 Survival 34 19.29 Waiver of Jury Trial 34
EXHIBITS
EXHIBIT A FOOD AND BEVERAGE FACILITIES EXHIBIT B INSURANCE ENDORSEMENTS EXHIBIT C OPERATOR'S RESPONSE TO AIRPORT FOOD
AND BEVERAGE MANAGEMENT SERVICES REQUEST FOR PROPOSALS
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[SUCCESSFUL PROPOSER]
AGREEMENT FOR MANAGEMENT SERVICES OF
AIRPORT FOOD AND BEVERAGE OPERATIONS
DES MOINES INTERNATIONAL AIRPORT
DES MOINES, IOWA This Agreement for Management Services of Airport Food and Beverage Operations (“Agreement”) is made this _____ day of __________, 2016, between the DES MOINES AIRPORT AUTHORITY, ("Authority") and [Successful Proposer], a _________________ , organized under the laws of the state of _____ and qualified to do business in the state of Iowa, with its principal place of business in __________, ____ ("Operator").
RECITALS Authority owns and operates the Des Moines International Airport ("Airport") and, as a component of the Airport's operations, the Airport's Food and Beverage Facilities (as hereinafter defined). Authority distributed a Request for Proposals seeking a qualified manager to operate the Food and Beverage Facilities. In response to Authority's Request for Proposals, Operator submitted a Proposal dated _________ ___, 2016 ("Proposal"), which Proposal by this reference is made a part hereof. Authority's evaluation committee assessed all proposals received, and determined Operator's to be the best overall proposal. THEREFORE, the parties agree as follows:
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ARTICLE 1 DEFINITIONS
1.1 Definitions. The following words and phrases, wherever used in this Agreement, shall
have the following meanings:
"Airport" means the Des Moines International Airport.
"Authority Board" means the Des Moines Airport Authority Board.
“Contract Year” means the period from July 1st through June 30th during the initial and optional terms of this Agreement. "Executive Director" means the Executive Director of the Airport Authority or his or her duly authorized representative. "FAA" means the Federal Aviation Administration of the United States Government or any federal agencies succeeding to its jurisdiction. "FAR" means Federal Aviation Regulations adopted by the FAA. "Food and Beverage Facilities" means those areas of the Airport’s terminal building that are designated for the sale and consumption of food and beverage items as described in Exhibit A to this Agreement or as otherwise designated from time to time by the Executive Director, to include all equipment and structures associated with those areas, as well as all office and storage areas specifically assigned to the Operator from time to time during a Contract Year. “Gross Revenues” means all money received from the sale of food and beverages, not including sales tax or staff gratuities. "Management Fee" means the annual fee paid to Operator by Authority for the performance of all duties described in this Agreement. “Net Income” means all money received from the sale of food and beverages, not including sales tax or staff gratuities, LESS (a) amortization of Authority’s capital investment (5-year straight line), and (b) all Operating Expenses. “Operating Expenses” means those specified direct expenses incurred in operation of the Food and Beverage Facilities, as limited in Article 15 of this Agreement. "Proposal" means the response submitted by Operator to the Authority's request for proposals, which response is included as Exhibit C to this Agreement.
"Rules and Regulations" means those policies, rules and regulations promulgated from time to time by Authority and implemented by the Executive Director for the orderly use of Airport by air transportation companies, tenants and users of Airport.
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"Transportation Security Administration" (TSA) means the Transportation Security Administration of the U.S. Government or any federal agencies succeeding to its jurisdiction. "TSR" means Transportation Security Regulations adopted by the Transportation Security Administration of the U.S. Government or federal agencies succeeding to its jurisdiction.
1.2 Agreement. This Agreement includes: (a) this document, Agreement for Management
Services - Airport Food and Beverage Operations, including the recitals, together with its exhibits; (b) Request for Proposal, including its attachments, attached hereto as Exhibit C; (c) the Proposal dated , and (d) the Operations Manual required under Article 6 of this Agreement. The listed documents are to be interpreted so as to give effect to all terms of each and to harmonize their provisions. To the extent there are provisions in the listed documents that are irreconcilable, then the order of precedence is as listed in this section.
ARTICLE 2 DUTIES OF OPERATOR
2.1 Duties and Responsibilities. Subject to the provisions of this Agreement, Operator shall
have decision-making authority in the day-to-day operation, direction, management, and supervision of the Food and Beverage Facilities. Operator’s authority and obligations include:
A. Hiring, training, compensation, supervision, and termination of Food and
Beverage Facilities’ personnel, and determining number of staff required; B. The creation of food and beverage menus, wine lists, and the pricing of same, and
the setting of dress codes for the Food and Beverage Facilities, all of which shall be subject to the prior written approval of the Authority, in the Authority’s sole discretion, prior to implementation;
C. Maintaining and operating the Food and Beverage Facilities in accordance with
the operating standards set from time to time by the Authority. As to matters relating to the operation or management of the Food and Beverage Facilities that are not provided for in this Agreement, Operator agrees to consider the Authority’s observations and requests from time to time with respect thereto, provided that the Authority will not make any such requests which would be inconsistent with the operating standards. At the Authority’s request, Operator will meet with the Authority from time to time to discuss such observations and requests;
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D. Purchasing and maintaining all inventories of food, beverages (including, without limitation, alcoholic beverages), and operating supplies for the Food and Beverage Facilities;
E. Providing on-site catering services for the Authority as requested; F. Obtaining, and keeping in full force and effect, in the name of the Authority or
Operator as appropriate (or as expressly provided herein), all necessary licenses and permits (including the liquor license and other bar, restaurant, and occupancy licenses or permits) as may be required by law, rule, regulation or ordinance to operate the Food and Beverage Facilities. Operator shall not take any actions which could jeopardize or otherwise adversely affect any of such licenses or permits. Operator shall comply with the conditions set forth in any such licenses and permits and at all times shall manage and operate the Food and Beverage Facilities in accordance with such conditions and other applicable laws, rules, regulations or ordinances;
G. Applying sound administrative, accounting, cash management, budgeting,
operational, sales, advertising, legal, personnel, and purchasing policies and procedures in accordance with the terms of this Agreement to the end of optimizing the aggregate Net Income generated by the Food and Beverage Facilities. The parties acknowledge that Operator will prepare the annual operating budget consistent with the goal of optimizing Net Income; and
H. Notifying the Authority, in writing within 24 hours, if it has actual knowledge
relating to, and promptly forwarding to the Authority within 24 hours, any notices or communications it delivers or receives with respect to:
1. The occurrence of damage or destruction to the Food and Beverage
Facilities; 2. Any litigation, claim, or proceeding affecting the Authority, Operator, or
the operation of the Food and Beverage Facilities in which the amount claimed or in controversy is $500 or more or otherwise which is material to the operation of the Food and Beverage Facilities, and any written threat to institute any of the same which is likely to give rise to any such litigation, claim, or proceeding;
3. Any notice of violation (or alleged violation) of any law, rule, regulation
or ordinance relating to ownership or operation of the Food and Beverage Facilities which could expose the Authority or Operator to any criminal or civil penalty, or which is otherwise material to the ownership or operation of the Food and Beverage Facilities; and
4. Any strikes or other material labor unrest relating to the Food and
Beverage Facilities.
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2.2 Limitations on Operator’s Authority. In addition to any other limitations on Operator’s authority set forth in this Agreement, Operator shall not, without the Authority’s prior written approval, take any of the following actions with respect to the Food and Beverage Facilities, unless otherwise expressly permitted by the terms hereof and except if the specific terms of such action shall have been expressly provided for in the annual operating budget or otherwise have received the prior written approval of the Authority:
A. Enter into any contract or other agreement that could require payment of more
than $6,000 per year or having a term longer than one year (unless such contract is terminable after one year upon not more than thirty days’ notice without penalty) or so modify or amend any such contract or agreement; or
B. Enter into any sublease, sublicense, sub-concession, or other agreement with
respect to the Food and Beverage Facilities; or C. Enter into any arrangement for the employment of any professional firm in the
regular course of operating the Food and Beverage Facilities except as set forth in the annual operating budget; or
D. Enter into, renew, modify, amend, or terminate any union contract or collective
bargaining agreement affecting the Food and Beverage Facilities; or E. Settle any litigation or claims for more than $500 unless the settlement solely
involves the payment of an amount in cash which is covered by insurance proceeds for which the deductible amount does not exceed $500; or
F. Extend more than $500 of credit to a single customer or group of related
customers; or G. Borrow money, issue any guarantees, or incur any interest or contingent
obligation in the operation of the Food and Beverage Facilities, except for ordinary trade debt; or
H. Sell, transfer, grant a security interest in, or otherwise dispose of any Authority
property used in the operation of the Food and Beverage Facilities, except for the sale of inventory in the ordinary course of business of the Food and Beverage Facilities; or
I. Provide complimentary services of more than $5,000 in any Contract Year
without the prior written approval of Authority; or J. Take any other action that is prohibited under the terms of this Agreement or
requires the prior written approval of the Authority.
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ARTICLE 3 TERM OF AGREEMENT
3.1 Initial Term. The term of this Agreement is for a period of five (5) years beginning July
1, 2017. 3.2 Optional Terms. At the expiration of the Initial Term stated in Section 3.1, this
Agreement may be renewed annually by mutual agreement between Operator and the Authority. Each annual option period must be agreed upon no later than January 1st of each Contract Year with respect to the following Contract Year.
ARTICLE 4 OPERATOR COMPENSATION
Management Fee. As compensation for the food and beverage management services, Authority shall pay Operator a Management Fee in the aggregate amount of XXX percent (XXX%) of Net Income. The Authority will pay the management fee monthly, in arrears, subject to Contract Year-end audit and adjustment. Operator agrees that the Management Fee includes all of the following:
1. Operator’s costs in assisting the Authority with design and construction of
improvements to the Food and Beverage Facilities 2. Operator’s general and administrative overhead 3. All salary and other compensation of Operator, Operator’s affiliates, and Operator’s
employees above the level of the Food and Beverage Facilities’ general manager 4. Payroll processing fees 5. Operator’s telephone, mail, and messenger fees (except those incurred during the
normal course of operating the Food and Beverage Facilities) 6. All operating expenses except those covered under Article 15
ARTICLE 5 HOURS OF OPERATION
5.1 Hours of Operation. Operator agrees to open the Food and Beverage Facilities for
business seven days a week beginning one hour prior to the first scheduled departure of the day, and closing after the final scheduled departure of the day has left the terminal building. Operator agrees to keep the Food and Beverage Facilities open beyond the normal hours of operation to accommodate delayed and diverted flights as directed by Authority personnel.
5.2 Changes in Hours of Operation. The Executive Director has the authority to change the
hours of operation from time to time. Operator may recommend or request changes to the hours of operation as stated in Section 5.1 in writing to the Executive Director. Operator agrees that the decision of the Executive Director regarding the request will be final.
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ARTICLE 6 OPERATIONS
6.1 Operations Manual. At least 90 days prior to commencing operations under this
Agreement, Operator shall prepare and submit to Authority for its approval or disapproval a written operations manual describing the specific procedures it will use to manage and operate the Food and Beverage Facilities.
The operations manual must include, but is not to be limited to, the following sections:
• Organizational Chart
• Kitchen Management (including, but not limited to, setup, cleaning, and closing procedures; inventory controls, food safety, etc.)
• Dining Room and Bar Management (including, but not limited to, customer
service policies and procedures, opening and closing procedures, seating plan, complaint resolution, ordering procedures, payment and closeout procedures, liquor inventory and management, dining room and bar cleanup, etc.)
• Personnel Administration (including, but not limited to, job descriptions,
application and hiring process, termination, orientation, scheduling, performance review, employee discipline, vacation and sick time policies, overtime, operational rules and policies, sexual harassment policy, and timekeeping procedures)
• Employee training (including, but not limited to, training schedules by position, training manuals by position, cleanliness and sanitation training, foodborne illness prevention training, and customer service training)
• Purchasing and Inventory (including, but not limited to, product specifications, vendor policy/approved vendors, inventory levels, ordering procedures, receiving procedures, inventory control, handling of spoilage, and physical inventory counts)
• Safety and Security (including, but not limited to, safety management, emergency procedures, security policies and procedures, safety rules and practices, fire prevention, and first aid)
• Business and Financial Management (including, but not limited to, cash deposit procedures and controls, point-of-sale procedures and controls, discounts and comp policy, payroll processing procedures, administration of gratuities, accounts payable, weekly reports, financial statements, monthly reports, expense reimbursement procedures, and insurance)
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• Equipment Management (including, but not limited to, equipment maintenance schedule, handling breakdowns and repairs, repair vendor management, equipment replacement procedure, and new equipment request procedure)
Authority may from time to time require modifications to the procedures set forth in the operations manual to promote efficient operation, increased customer service, and customer convenience. Operator agrees to promptly make such modifications as may be requested by Authority. Operator shall diligently comply with the procedures set forth in the operations manual.
6.2 Menu and Pricing. Operator will be responsible for the development of the menu and pricing for each location in the Food and Beverage Facilities, subject to the prior written approval of the Executive Director. Changes to the menu or pricing must be received and approved in advance by the Executive Director.
All food and beverage products offered for sale by Operator will be priced within ten percent (10%) of like facilities serving products of similar portion and presentation in other U.S. airports. What constitutes “like facilities” and “similar portion and presentation” will be determined solely by the Executive Director in his or her sole discretion.
6.3 Employee Discounts. Operator will provide a discount of ten percent (10%) off all food and beverages purchased by employees of Operator, other Airport terminal building tenants, and the Authority. Employees shall be required to display their Authority-issued identification badge to receive the discount. The Executive Director shall have the sole authority to determine who qualifies for the Employee Discount under this program. Employee discounts shall be included in the determination of Net Income in this Agreement, and Operator will be required to track employee discounts in order to report them to the Authority.
6.4 Independent Contractor. Operator agrees that no authority has been conferred upon it by the Authority to hire any person or persons on behalf of the Authority, and the Authority undertakes no obligation of any sort to Operator’s employees. It is understood that Operator shall select, engage, and discharge its employees, agents or servants and otherwise direct and control their services. It is further understood that for all purposes of this Agreement, Operator is an independent contractor and, as such, Operator agrees to comply with and shall be responsible for all requirements of Federal, State and Local laws and regulations, including Workers' Compensation.
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ARTICLE 7 CLEANING, MAINTENANCE, AND REPAIR
7.1 General Maintenance and Cleaning. Operator is responsible for the cleaning and
maintenance of the Food and Beverage Facilities. The cost of maintenance, cleaning, and repairs, including the cost of personnel, equipment, and supplies, are considered operating expenses under Article 15. Operator will provide sufficient and qualified staff to perform the assigned maintenance and cleaning of the Food and Beverage Facilities.
A. Cleaning. Operator is responsible for daily cleaning and trash pick-up in the Food
and Beverage Facilities The operations manual must specify the appropriate schedule for cleaning and shall include the kitchen, dining room, bar, and food storage areas. Operator shall clean the floors, windows, and bar at least once per day. Operator shall clean tables and seating surfaces after each patron’s use. 1. Cleaning consists of wiping the interior surfaces with an appropriate
cleaner, sweeping, wet mopping, and dusting as necessary to keep the Food and Beverage Facilities free of dirt. Trash containers must be emptied or picked up at least daily in all areas. Operator shall remove trash swiftly and inconspicuously and place it in containers designated by the Executive Director. Operator shall keep clean all food storage and office areas so as to present a clean, sanitary, and professional appearance at all times.
2. Operator shall keep all kitchen equipment, including but not limited to
ovens, ranges, grills, utensils, and prep areas, clean and sanitary at all times in accordance with applicable state and local health codes.
B. Facility Maintenance. Authority will maintain and repair the Food and Beverage
Facilities. Operator is responsible to promptly report all maintenance and repair requirements to the Authority.
C. Equipment Maintenance and Repair. Operator is responsible for the daily cleaning and maintenance of the equipment provided by the Authority in the Food and Beverage Facilities. Operator will arrange prompt repairs of Authority-provided equipment in the Food and Beverage Facilities and will promptly report all such repairs to the Executive Director.
7.2 Pest Control. Operator shall be solely responsible for promoting a pest-free environment
within the Food and Beverage Facilities by maintaining cleanliness and minimizing pest attractants. Operator agrees to notify the Authority within 24 hours if pest control services are needed in the Food and Beverage Facilities.
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ARTICLE 8 RIGHT TO INSPECT AND MAKE REPAIRS
Authority has the right to:
• Inspect the Food and Beverage Facilities at any time to determine whether Operator has complied and is complying with the terms of this Agreement.
• Perform maintenance and make repairs and replacements in any case where Operator has
failed to report it in Section 7.1 of this Agreement. Authority may, at its discretion, deduct from the monthly Operator's Management Fee payment an administrative fee of fifteen percent (15%) of the cost incurred from any such repairs.
• Perform maintenance and make repairs and replacements, whenever Authority
determines it necessary or desirable to do so, to preserve the safety of the Food and Beverage Facilities or to correct any condition likely to cause injury or damage to persons or property.
• Operator waives any claim to lost revenues from its Management Fee resulting from the
Authority performing repair and maintenance on the Food and Beverage Facilities.
ARTICLE 9 IMPROVEMENTS
9.1 Improvement Proposal. Operator shall work with Authority (without compensation
other than the Management Fee) to redesign the existing Food and Beverage Facilities as outlined in its proposal dated [Month, Day, Year] which is attached as Exhibit C. Operator will also provide consultation during construction of the Food and Beverage Facilities as part of its services provided under this Agreement. In accordance with the Proposal and contract documents, the Authority shall have and possess final right of prior approval of all plans, specifications, form of contract, and construction with respect to the Food and Beverage Facilities.
9.2 Condition of Premises. At the beginning of the Agreement’s term, the Authority shall
deliver the Food and Beverage Facilities to the Operator as-is, except for furniture, furnishings, equipment, removable fixtures, and supplies owned by the prior Concessionaire. The improvements owned by the Authority include interior walls, ceilings, floor covering, carpeting, finished flooring, electrical wiring, air-conditioning ducts and equipment. The improvements owned by the Authority may also include specific concession furniture, equipment, interior decoration, furnishings, or connections for electrical power or telephone/data which cannot be removed without structural damage to the premises.
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9.3 Improvement Financial Contribution. The Authority will contribute up to one million dollars ($1,000,000) (the “Contribution”) to pay for the design and construction of improvements to be made to the Food and Beverage Facilities.
9.4 No Liens. Operator shall ensure that no security interests or other liens are placed on
the Food and Beverage Facilities or other Authority property. 9.5 Overall Construction Program. Prior to the construction and installation of any
improvements, Operator shall first prepare an overall program including a time schedule for same, which shall be subject to the prior written approval of the Authority. The Authority will determined whether any proposed improvements must be publicly bid. The schedule shall include as a minimum the following milestones: (1) Conceptual Design; (2) Design Development; (3) Construction Documents; (4) Plan Check and Permit; (5) Bid; (6) Construction; and (7) Date of Beneficial Occupancy (DBO).
9.6 Design Approval. The Authority shall have sole approval authority over design of the
Food and Beverage Facilities, and Operator shall consult during the review process and include in its project schedule the following review time:
• Concepts/Schematic Design 10 Calendar Days • Design Development 10 Calendar Days • Construction Documents 40 Calendar Days
One set of plans and specifications shall be returned from Operator with written comments within the above time frame.
9.7 Adherence to Plans and Specifications. Upon Authority’s approval of the detailed
plans, specifications, equipment, cost estimates, and the interior design and decor of the improvements to the Food and Beverage Facilities, Operator shall assist Authority in causing said work to be commenced and completed with dispatch and in accordance with the schedule referenced in Section 9.5 above. No substantial change, change order, addition, or alteration shall be made in the scope of the work so approved without first obtaining the Authority's prior written permission. No structural changes, décor, or improvements other than as contemplated herein shall be made in or upon the Food and Beverage Facilities without the prior written consent of the Authority, and any conditions relating thereto then stated by the Authority shall become conditions hereof as if they had been originally stated herein.
9.8 Future Work. After completion of the structural or other improvements and
installation of equipment and interior design and decor, as above provided, Operator shall not make any structural alterations to the ceilings, walls or floors of any permanent improvements in the Food and Beverage Facilities without first obtaining the Authority's prior written consent; provided, however, that Operator may make nonstructural alterations which the exigencies of the operation of the Food and Beverage Facilities demand in order to promote efficiency in the operation thereof.
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9.9 Building Codes. All structural or other improvements, equipment, and interior design and decor constructed or installed under Operator’s supervision, including the plans and specifications therefore shall in all respects conform to and comply with the applicable statutes, ordinances, building codes, rules and regulations of the Authority and such other authorities as may have jurisdiction over the Food and Beverage Facilities and Operator's operations therein.
ARTICLE 10 STANDARDS OF SERVICE AND PERSONNEL
10.1 Service Standards. It is the policy of the Authority that the Food and Beverage Facilities
be operated in an efficient manner, giving the best possible service to the public and all customers using the Food and Beverage Facilities. Operator understands that food quality, customer service, and value are important aspects to the operation of the Food and Beverage Facilities and Operator agrees to cooperate at all times in support of this policy. Operator further agrees to operate the Food and Beverage Facilities and to manage its employees and programs in accordance with the procedures set forth in the Proposal and the terms and conditions of this Agreement in order to provide both efficient, well-maintained Food and Beverage Facilities and a high level of quality and customer service.
10.2 Operator's Representative. In entering into this Agreement, Authority has relied upon the
knowledge, experience and expertise of the Operator's Representative(s) as defined in the Proposal, and the representation of Operator that such individual(s) will provide overall supervision of Operator's performance of the terms of this Agreement.
10.3 Manager. Operator shall employ a qualified employee designated as its local general
manager to supervise the operation of the Food and Beverage Facilities on an exclusive, full-time basis. Authority shall have the right in its discretion to approve or disapprove from time to time the local general manager and any successor. Operator shall provide the manager with sufficient authority and responsibility to ensure proper management and operation of the Food and Beverage Facilities in compliance with this Agreement. When the local general manager is not on duty, a qualified employee shall be delegated the responsibility to supervise the operation of the Food and Beverage Facilities.
10.4 Employee Qualifications.
A. Selection. Operator shall select honest, competent, and courteous personnel, and shall train, supervise, and maintain proper surveillance over all its employees to ensure both their integrity and the maintenance of an honest and high standard of service to the public. Operator shall follow the hiring processes set forth in its Proposal, and shall perform pre-employment screening on newly hired employees. All new hires will be badged for sterile area work, and must pass the background checks required for the appropriate Authority security badge. The general manager and assistant managers (at minimum) are required to qualify for
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apron access privileges in order to receive and escort delivery trucks onto the airfield.
B. Development and Behavior. Operator shall conduct the employee development
programs as set forth in its operation manual or as otherwise agreed, including programs for the comprehensive orientation and training of new employees and the ongoing development of existing employees. Operator shall control the actions of its employees and terminate from employment at the Food and Beverage Facilities any employee whose conduct Operator finds detrimental to the best interests of the Authority, the Airport, or the general public, as allowed by law or any applicable collective bargaining agreement.
C. Uniforms. Operator's employees, while on or about the Airport premises, shall
wear neat, clean, and properly cared for uniforms. The typical employee uniform shall include shirt and slacks or skirt as provided by the Authority. The cost of leasing or purchasing the uniforms shall be charged as an operating expense as provided for in Article 15. Cleaning of the uniforms is not a reimbursable expense. All employees will also wear appropriate footwear, as approved from time to time (but not provided) by the Authority. Operator shall cause all employees, while on duty, to wear an Authority-issued identification badge containing the employee's name.
10.5 Staffing. The number of employees hired by Operator, the duties to be performed by
each job classification, and salary range of each job classification (including such part-time employees as may be required to effectively operate the Airport Food and Beverage Facilities during peak periods of activity) shall be determined solely by the Operator.
Any changes in staff size, job positions, or salary ranges will be in accordance with Article 15.
10.6 Employee Health Insurance, Life Insurance, and Retirement Benefits.
A. Health insurance, life insurance, retirement benefits, and Operator's per employee
cost (prior to any reimbursement by employee) for health insurance, life insurance and retirement benefits, shall be comparable in all respects to the benefits and per employee costs provided to employees who are involved in the food and beverage industry in the Des Moines metropolitan area.
B. Health insurance, life insurance, and retirement benefits may be charged as an
operating expense as provided for in Article 15. C. Operator shall provide the Executive Director or designated representative with
documentation annually that verifies the benefits and per employee cost of those benefits consistent with paragraph (A) above.
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10.7 Gratuities. Any gratuity paid or given by patrons or customers to Operator’s employees will be accurately recorded, reported, and taxed as required by the Internal Revenue Service and the State of Iowa. Operator and its employees will follow the laws of the State of Iowa regarding the handling of gratuities paid to employees by cash or credit card.
10.8 Employee Parking. Operator’s local employees will be provided with parking
commensurate to that provided for other Airport tenants’ employees at the Airport.
ARTICLE 11 DISADVANTAGED BUSINESS ENTERPRISES (DBE)
11.1 Policy. It is the policy of the Authority to promote the objectives of the United States
Department of Transportation with respect to the participation of DBEs in DOT assisted contracts and airport concessions. This policy has been formulated to comply with 49 CFR Parts 23 and 26. The requirements of 49 CFR part 26 apply to this contract. It is the policy of the Authority to practice nondiscrimination based on race, color, sex or national origin in the award or performance of this contract. The Authority encourages participation by all firms qualifying under this solicitation.
11.2 DBE Goal. In accordance with Regulations of the U.S. Department of Transportation, 49
CFR Part 23, the Des Moines Airport Authority adopted an Airport Concession Disadvantaged Business Enterprise (ACDBE) Plan in November 2014, under which qualified firms may have the opportunity to operate an airport business. An ACDBE goal has not been set for this Agreement, however Operators are encouraged to seek ACDBE participants for opportunities available in conjunction with the performance of this Agreement (i.e. the purchase of goods and services).
11.3 Assurance. This agreement is subject to the requirements of the U.S. Department of
Transportation's regulations, 49 CFR Part 23. The Operator or contractor agrees that it will not discriminate against any business owner because of the owner's race, color, national origin, or sex in connection with the award or performance of any concession agreement, management contract, or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR Part 23. The Operator shall carry out applicable requirements of 49 CFR Part 23 in the award and administration of DOT assisted contracts. Failure by the Operator to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the recipient deems appropriate.
11.4 Inclusion of DBE Discrimination Provision in Sub-Agreements. Operator agrees to include
the statements in Section 11.3 in any subsequent agreements that it enters into and cause those businesses to similarly include the statements in further agreements.
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11.5 Compliance with DBE Requirements. In the event that a national ACDBE goal, applicable to this Agreement, is set by the Federal Aviation Administration or the United States Department of Transportation during the term of the Agreement, Operator shall make good faith efforts as defined by the applicable regulation, to meet the goal. Such efforts shall be documented and submitted to the Authority as required by the FAA or DOT regulations. Operator shall submit, in the format prescribed by the Authority, a quarterly report of ACDBE participation, including the ACDBE participant's name, address, contact information, type and dollar amount of participation and percentage of participation. Operator shall assist the Authority in identifying participants in the business opportunities covered by this Agreement who may be eligible for certification as an ACDBE.
Non-compliance with this requirement may result in termination of this Agreement in accordance with Article 17.
11.6 Maximum Opportunity to Participate.
A. It is the requirement of the Federal Department of Transportation ("DOT") that Disadvantaged Business Enterprises as defined in 49 CFR Part 23 shall have the maximum opportunity to participate in the performance of concession agreements at the Airport. Consequently, the DBE requirements of 49 CFR Part 23 are hereby included in this Agreement. Operator agrees to comply with the requirements of any such regulations as applicable to this Agreement. Furthermore, Operator agrees to submit information at the request of the Airport concerning the DBE(s) that may participate in this Agreement. This information will include the name and address of each DBE, a description of the work to be performed by each named DBE and the dollar value of the DBE's contracted participation. The Operator will also provide information as requested by the Airport describing the purchase or lease of goods or services from DBE(s) including, but not limited to, the purchase or lease of automobiles, fuel, tires, maintenance and janitorial services and other services.
B. In the event of breach of any of Operator's duties contained in this Article 10, the
Airport shall have the right to terminate this Agreement and to re-enter and repossess the facilities and hold the same as if this Agreement had never been made or issued, provided, however, that the Operator shall have the right to contest an alleged breach under applicable procedures, and any sanctions under or termination of this Agreement shall be withheld pending completion of such procedures; and provided, however, that the Operator will pursue these applicable procedures with diligence and dispatch.
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ARTICLE 12 ENVIRONMENTAL REGULATIONS
12.1 Environmental Representations. Notwithstanding any other provisions of this
Agreement, Operator acknowledges that certain properties and uses of properties within the Airport are subject to environmental regulations. Operator agrees to observe and abide by these regulations as applicable to its use of the Airport, and in addition to any and all other Agreement requirements, and any other covenants and warranties of Operator. Operator hereby expressly warrants, guarantees, and represents to Authority that Operator will comply with all applicable federal, state, regional and local laws, regulations and ordinances protecting the environmental and natural resources and all rules and regulations promulgated or adapted as some may from time to time be amended and accepts full responsibility and liability for such compliance.
12.2 Violations. Operator shall provide any agency's notice of environmental violation, or
similar enforcement action or notice of noncompliance, to Authority within 24 hours of receipt by Operator or Operator's agent. Violation of any part of the provisions of this Article or disposition by Operator of any sanitary waste, pollutants, contaminants, hazardous waste, toxic waste, industrial cooling water, sewage or any other materials in violation of the provisions of this section will be deemed to be a default under this Agreement and, unless cured within 10 days of receipt of notice from Authority, be grounds for termination of this Agreement, and will also provide Authority grounds for taking whatever other action it may have in addition to termination based upon default as provided for under this Agreement.
12.3 Fines Resulting from Violations. Operator is responsible for payment of any and all fines
imposed as a result of its acts of non-compliance with federal, state, or local regulations, statutes, ordinances, or laws in effect now or in the future concerning the protection of the environment.
12.4 Storm Water Regulations and Ordinances. Operator agrees to abide by all federal, state,
and local rules, regulations, statutes, ordinances, and laws in effect now or in the future concerning storm water requirements.
12.5 Chemicals. Operator will observe OSHA 1910.1200, Chapter 89B of the Iowa Code, and
875 Iowa Administrative Code, Chapter 110, Sec. 110.5, which require employers to maintain Material Safety Data Sheets (MSDS) for all chemical-containing products to which its employees are exposed. If there is a question concerning whether a MSDS is needed for a particular product, contact the Authority's Contracts Manager at (515) 256-5100. Chemical-containing products include certain office supplies such as "white out", toner, etc.
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ARTICLE 13 INSURANCE AND INDEMNIFICATION
13.1 General. Operator shall, at its own expense, purchase and maintain insurance to protect
Operator and Authority throughout the duration of this Agreement. Said insurance shall be provided by insurance companies, "admitted" and "non-admitted" to do business in the state of Iowa, that have no less than an A.M. Best Rating of "B", or have a recognized reputation satisfactory to Authority. All policies shall be written on a per occurrence basis, not a claims-made basis, and in form and amounts and with companies satisfactory to Authority.
13.2 Insurance Requirements.
A. Workers' Compensation Insurance. Operator shall procure and maintain during
the life of this Agreement, Worker's Compensation Insurance, including Employer's Liability Coverage, in accordance with all applicable statutes of the state of Iowa. The coverage limits shall include $1,000,000 each accident for Bodily Injury by Accident, $1,000,000 each accident for Bodily Injury by Disease, and $1,000,000 policy limit for Bodily Injury by Disease. This requirement does not apply if Operator is a sole proprietor or partnership with no part-time or full-time employees and has chosen not to carry Workers Compensation Insurance as allowed under the provisions of the Code of Iowa.
Operator will add the Authority as an “alternate employer” by an endorsement to
the Workers Compensation policy. The endorsement must use the language provided in Exhibit B of this Agreement, or the Operator must prove that any alternative language provides substantially the same coverage to the Authority.
B. Commercial General Liability Insurance. Operator shall procure and maintain
during the life of this Agreement, Commercial General Liability coverage written on a per occurrence basis with limits of liability not less than $1,000,000 per occurrence and $2,000,000 aggregate combined single limit, Personal Injury, Bodily Injury and Property Damage. Coverage shall include the following extensions: (1) Contractual Liability, (2) Premises and Operations, (3) Products and Completed Operations, (4) Independent Contractors Coverage, (5) Personal and Advertising Injury and (6) deletion of Explosion, Collapse and Underground (XCU), where applicable. Coverage shall be no less comprehensive and no more restrictive than the coverage provided by a standard form Commercial General Liability Policy (ISO CG 0001, Ed 07/98 with standard exclusions "a" through "o" or any subsequent ISO equivalent or a non-ISO equivalent form). Any additional exclusion shall be clearly identified on the Certificate of Insurance and shall be subject to the review and approval of Authority. The policy shall be endorsed to provide an Aggregate Per Location Endorsement. Any fellow employee exclusion shall be deleted as it applies to supervisory and managerial personnel.
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C. Umbrella/Excess Insurance. Operator shall carry Umbrella/Excess Insurance of not less than $5,000,000. The Umbrella/Excess Insurance shall be written on a per occurrence basis and shall include the same endorsements as required of the primary policies.
D. Property Insurance. Operator shall procure and maintain during the life of the
Agreement, Property Insurance, providing fire and lightning, extended coverage, vandalism and malicious mischief and "all risk" insurance, excluding earthquake and flood but including debris removal, in a form at least as broad as the standard Insurance Services Office's Special Cause of Loss form covering all structural or other improvements installed by Operator in the premises, and all fixtures, furnishings, equipment and decoration kept, furnished or installed by Operator.
E. Liquor Liability (Dramshop) Insurance. Operator shall procure, and maintain
during the life of the Agreement, Liquor Liability (Dramshop) Insurance in the amount required by the State of Iowa for the operation of the Food and Beverage Facilities. The insurance shall include the same endorsements as required of the primary policies.
F. Subcontractors. Operator shall require that any of its agents and subcontractors
who perform any of Operator's management and oversight responsibilities pursuant to the provisions of this contract meet the same insurance requirements as is required of Operator.
G. Additional Insured and Governmental Immunity. Except for Workers
Compensation Insurance, the insurance policies providing the coverages specified in section 13.02, paragraphs (b), (c), and (d) above shall include Authority's Additional Insured and Governmental Immunities Endorsements attached as part of Exhibit B. Authority shall have no liability for any premiums charged for such coverage, and the inclusion of Authority as an Additional Insured is not intended to, and shall not make, the Authority a partner or joint venturer with Operator in its operations at the Airport.
H. Cancellation or Material Change Notice. The insurance policies providing the
coverages specified in (a) through (f) above shall include Authority's Cancellation Notice Endorsement. A copy of the required endorsement is attached as part of Exhibit B. Operator will bear responsibility for ensuring such notices are provided to Authority.
I. Proof of Insurance. Operator shall provide to Authority a Certificate(s) of
Insurance evidencing all required insurance coverage as provided in (a) through (h) above utilizing the latest version of the ACORD form. The Certificate(s) of Insurance shall specify under "Description of Operations/ Locations/ Vehicle/Special Items": (1) the title of the contract or permit or license, etc.; and (2) the following statement, "Where required, Additional Insured, Governmental Immunities, and Cancellation and Material Change endorsements have been included as per attached." These endorsements shall be attached to the
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Certificate(s) of Insurance so as to evidence their inclusion in the coverages required. Operator may not operate under the terms of the resulting contract or agreement until all required certificates and endorsements have been submitted and approved by Authority. All certificates and endorsements shall be submitted to the Executive Director at least 14 days prior to the effective date of the contract or agreement. Proof of insurance should be sent to the Des Moines Airport Authority, 5800 Fleur Drive, Suite 207, Des Moines, Iowa, 50321.
J. Changes in Coverage Limits. If during the term of this Agreement Authority
determines that the limits of coverage are insufficient through either change or erosion due to other losses, Authority shall provide Operator with 60 days written notice of any required changes. Operator shall submit to the Executive Director, within 10 days, new Certificate(s) of Insurance indicating that the required changes have been effected.
13.3 Indemnification.
A. To the fullest extent permitted by law, Operator agrees to defend, pay on behalf of, indemnify, and hold harmless Authority, its elected and appointed officials, employees and volunteers and others working on behalf of Authority against any and all claims, demands, suits, or loss, including any and all outlay and expense connected therewith, and for any damages which may be asserted, claimed or recovered against or from Authority its elected and appointed officials, employees, volunteers or others working on behalf of Authority, by reason of personal injury, including bodily injury or death, and property damages, including loss or use thereof, which arises out of or is in any way connected or associated with the work and/or services provided by Operator to Authority pursuant to the provisions of this Agreement. It is the intention of the parties that Authority, its elected and appointed officials, employees, volunteers or other working on behalf of Authority shall not be liable or in any way responsible for injury, damage, liability, loss or expense incurred by Operator, its officers, employees, subcontractors, and others affiliated with Operator due to accidents, mishaps, misconduct, negligence or injuries either in person or property resulting from the work and/or services performed by Operator pursuant to the provisions of this Agreement, except for and to the extent caused by the negligence of Authority.
B. Operator expressly assumes full responsibility for any and all damage or injuries
which may result to any person or property by reason of or in connection with the work and/or services provided by Operator to Authority pursuant to this Agreement, and agrees to pay Authority for all damages caused to Authority's premises resulting from the activities of Operator, its officers, employees, subcontractors, and others affiliated with Operator.
C. Operator represents that its activities pursuant to the provisions of this Agreement will be performed and supervised by adequately trained and qualified personnel, and
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Operator will observe, and cause its officers, employees, subcontractors and others affiliated with Operator to observe all applicable safety rules.
13.4 Waiver of Subrogation Provision. To the extent permitted by law, Operator hereby releases Authority, its elected and appointed officials, its agents, employees and volunteers and other working on behalf of Authority from and against any and all liability or responsibility to Operator or anyone claiming through or under Operator by way of subrogation or otherwise, for any loss or damage to property caused by fire or any other casualty, unless such fire or casualty shall have been caused by the negligence or willful misconduct of Authority, its elected and appointed officials, its agents, employees and volunteers and other working on behalf of Authority. This provision shall be applicable and in full force and effect only with respect to loss or damage occurring during the time of this Agreement. Operator's policies of insurance shall contain a clause or endorsement to the effect that such release shall not adversely affect or impair such policies or prejudice the right of Operator to recover thereunder.
ARTICLE 14 ACCOUNTING AND RECORDS
14.1 Accounting System.
A. Operator agrees to install and maintain at its own expense and with approval of Authority, a bookkeeping, accounting, and revenue control system covering the Food and Beverage Facilities, which books and accounts must be prepared in accordance with the procedures set forth in the operations manual and must, during standard business hours, be open to the inspection of Authority and its representatives. Operator's bookkeeping, accounting, and control system shall provide detailed books, records, and accounts for all income, revenues, and receipts for the Food and Beverage Facilities. A record of all receipts and disbursements must be contained in such books and accounts, with copies being maintained within Polk County, Iowa. The bookkeeping, accounting, and control system including procedures and reporting methods must be satisfactory at all times to the Executive Director. This system must incorporate the financial reporting and auditing procedures set forth in the Operator's operations manual, and must maintain records in accordance with Generally Accepted Accounting Principles (GAAP). In addition to any internal and third party audits performed by Operator, Authority may at any time perform audits of Operator's financial records and operations to determine compliance with the terms of this Agreement. The accounting system must be satisfactory to the Authority Finance Director and the Executive Director.
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B. Operator shall make its books, records and supporting documentation available to Authority for at least five years after the termination of this Agreement.
1. Operator shall store accounting records in such manner so as to provide
expeditious access for audit purposes. 2. Operator shall comply with all audit requests from Authority or its
authorized representative within 10 business days. In the event that Operator fails to comply, Operator will be responsible for Authority's cost of the audit, including, but not limited to, Authority’s staff's time. Authority shall have sole discretion to waive or extend this time frame as circumstances require.
3. Operator shall pay Authority $50.00 every calendar day for any report
specified within this Agreement for which Operator is delinquent, including, but not limited to, the audit requests described in Subsection B.2 above. The charge will continue until specific performance is accomplished.
4. Operator shall ensure that its financial or accounting subcontractors (e.g.
armored car service, payroll processor, etc.), are required to comply with the requirements of this section.
C. Authority will reimburse Operator for an appropriate share of a computerized point-of-
sale system software license and hardware necessary to complete the sales and revenue tracking process for food and beverage sales required in this Article 14. Authority will provide secondary support for all such equipment. Operator's bookkeeping, accounting, and revenue control system must contain, but is not limited to, the following features:
1. Daily reconciliation of revenues from credit cards and cash for each
location within the Food and Beverage Facilities, sorted by type (alcohol, non-alcoholic beverages, food, etc.).
2. Control and safeguarding of cash and other property assets of Authority. 3. Control of food and beverage revenues.
4. Control of payroll costs, including use of time clocks or time sheets, and
other expenditures. 5. Proper classification of revenues and expenditures and compliance with
other accounting requirements as specified by Authority. 6. Proper accounting of revenue so as to provide reports evidencing the sales
made in the Food and Beverage Facilities and the revenue generated at each location within the Food and Beverage Facilities.
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7. Such other reports and statements to be provided by Operator as set forth in its operations manual.
14.2 Bank Account. The Authority shall establish a bank account in compliance with its
investment policy in a Des Moines bank approved by the Executive Director. Operator shall deposit all income, revenues, and receipts of the Food and Beverage Facilities into the account in a timely manner. Operator shall bear full responsibility for depositing daily income, revenues, and receipts and providing for their safekeeping. Operator shall reimburse Authority for all lost income, revenues, and receipts caused by (a) Operator's failure to follow the procedures set forth in Operator's operations manual; and (b) any negligence, misconduct or other fault of Operator. Operator is not authorized to withdraw any funds from this account. Authority will receive monthly statements directly from the bank with which the account is held.
14.3 Additional Services for Operator. In addition to providing management services, bonds,
and insurance, Operator agrees to perform for the Food and Beverage Facilities the following services, at its own expense:
A. All accounts payable records and supplies inventory control. B. Completion of payroll, social security, withholding tax, workers compensation,
and all other related required forms. C. Periodic audit of cash handling procedures for accuracy and proper control. D. Preparing and holding for review by Authority the following records and reports
for the Food and Beverage Facilities. 1. Weekly payroll summary on forms for that purpose, showing names of
employees, hours worked each day, hourly rate or salary, and gross pay for the week. These summaries are to be completed within three calendar days after the end of each week and retained at the Airport.
2. Written reports for each damage, theft, or injury claim arising from the
operation of the Food and Beverage Facilities, to be submitted to Authority within 24 hours.
3. Substantiating records for payrolls, payroll taxes, and other expenditures,
as may be required for audit purposes by Authority, to be submitted within 10 days after Authority has made a request.
4. A monthly report containing information on daily sales by type and daily
revenues and deposits, to be submitted to Authority within 14 days after the end of each month.
14.4 Correctness of Reports. Operator is charged with the responsibility of exercising proper
care and accuracy in the preparation of required reports and records.
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14.5 Preservation of Reports. Operator will keep and preserve for a minimum of five years after the termination of this Agreement (or longer if required by law) all sales slips, cash register tapes, sales books, bank books, or duplicate deposit slips, credit card totals, and other evidence of gross receipts and business transacted. Operator shall furnish Authority copies of any such records upon request.
14.6 Approval of Operator's Annual Budget. Not less than 30 days prior to the beginning date
of this Agreement, Operator and Authority will collaborate to establish an annual budget for the first Contract Year of the Agreement. In subsequent Contract Years, Operator shall prepare and submit for approval by Authority a proposed annual budget, broken down by type and amount of projected revenues and expenses, for the Food and Beverage Facilities. The final budget for the first Contract Year of operation under this Agreement must be submitted to Authority no later than 30 days after the commencement of the Agreement. The budget for subsequent years must be submitted 90 days prior to the beginning of each Contract Year. Operator shall promptly submit any modifications to the proposed budget as requested by Authority.
On a monthly basis, operator shall submit a budget variance report detailing revenues and reimbursable expenses budgeted, actually experienced, and any variances. If possible, a fourth column detailing the previous Contract Year's budget will also be included.
ARTICLE 15 PAYMENT OF EXPENSES
15.1 Operating Expenses. Unless otherwise specified, all operating expenses for the operation
of the Food and Beverage Facilities shall be paid by Operator. Such operating expenses will include:
• Employee payroll (including tips paid through payroll) • Employee benefits as approved by the Executive Director (including health
insurance, life insurance, retirement benefits, incentives, etc.) • Charges for Airport ID Badging for all employees from local manager down (not
corporate-level employees) • Employee recruiting and training expenses • Food, ingredients, beverages, and liquor • Paper and kitchen supplies • Replacement dishes, flatware, glasses, etc. • Kitchen equipment purchase and maintenance • Upgrades and maintenance for the point-of-sale system • Cleaning supplies • Employee uniforms (excluding laundry service) • Telephone service as approved by the Executive Director (including cellular
service for the general manager) • Internet and cable television service to the Food and Beverage Facilities • Licenses and permits not directly purchased or held by the Authority
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• Armored car and other cash handling expenses related to the operation of the Food and Beverage Facilities
• Other costs and expenses incurred with respect to the Food and Beverage Facilities on behalf of Authority pursuant to Authority's written request
Within 14 days of the end of each month, Operator will submit an itemized request to the Authority for reimbursement of all Operating Expenses from the prior month, along with supporting documentation. Upon review and approval of the request, the Authority shall reimburse Operator for the operating expenses. The Authority reserves its right to request additional expense documentation as needed to verify any reimbursement item before providing payment. Any expense over $1,000, other than employee payroll expense and food and beverage inventory expenses, must be submitted in writing and approved in writing by the Executive Director. Operator shall secure the advantage of any savings which may result by reason of other operations of Operator and Operator shall pass on to Authority the benefit of any savings which may result by reason of block purchasing of food, equipment, and supplies.
15.2 Miscellaneous Expenses. The following costs will be absorbed in Operator's
Management Fee compensation provided for in Article 4, and Operator shall pay such costs from its own funds, and shall not charge such costs as operating expenses:
(a) The costs of all services listed in Article 14 to be performed by the Operator,
including those for a general ledger and payroll bookkeeping, accounting, and revenue control system and for the costs associated with the various reports and services specified, including costs for telephone, postage, and office supplies related to such services.
(b) The costs of insurance premiums, including workers' compensation insurance,
required in Article 13. 15.3 Working Capital Fund. Within thirty (30) days of the initial date of the Agreement,
Operator and the Authority will collaborate to establish an annual budget for the first Contract Year of the Agreement in accordance with the procedures set out in Section 14.6. Prior to the commencement of the Agreement, the Authority will establish a working capital fund equal to one-fourth (1/4) of the first-year annual budgeted operating expenses. This fund will remain the property of the Authority but will be immediately available to pay operating expenses of the Food and Beverage Facilities.
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ARTICLE 16 ASSIGNMENT
16.1 Authority Consent. Operator shall not, at any time, assign this Agreement or any part
hereof, without the prior written consent of Authority. Failure to obtain approval will be cause for immediate termination of this Agreement.
16.2 Transfer of Stock. A transfer of 10% or more of Operator's corporate stock, or a transfer of 10% of the control of Operator to another individual or entity, is considered an assignment of this Agreement and Authority's prior written approval of such transfer is required. This provision will not apply when Operator's corporate stock is traded on the New York Stock Exchange or the NASDAQ Exchange.
16.3 Change in Corporate Name. Operator shall notify Authority in advance of any change in corporate name or adoption of any trade name.
16.4 Subcontracting. Operator shall not subcontract for the provision of any management or
operation services under this Agreement without the prior written consent of Authority.
ARTICLE 17 TERMINATION
17.1 Termination.
A. In the event that one of the following occurs, Authority may at any time terminate this Agreement upon giving Operator 30 days’ notice in writing: 1. The Food and Beverage Facilities are not operated in a manner deemed by
Authority to be satisfactory or in accordance with this Agreement, and Operator does not correct the unsatisfactory operation within ten days of the receipt of written notice of the particulars of the default from Authority; or
2. Operator fails to perform any provision or covenant of this Agreement, and
Operator does not remedy the default within ten days of the receipt of written notice of the particulars of the default from Authority; or
3. The Food and beverage Facilities are required for any purpose other than
food and beverage sales.
B. If for any reason beyond Authority's control, Authority deems the Food and Beverage Facilities, or a substantial portion thereof, to be inoperable, then Authority may terminate this Agreement by giving Operator 30 days’ notice in writing.
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17.2 Bankruptcy. If a petition in bankruptcy or a petition for a receiver is filed against Operator, then Authority may terminate this Agreement.
17.3 Final Decision. The decision of Authority as to any matters in this Article will be final
and conclusive and Authority will not be liable for any loss or damage to Operator by reason thereof, or for the payment of any compensation to Operator following such termination.
ARTICLE 18 FAA PROVISIONS
18.1 Compliance with Non-Discrimination Requirements. During the performance of this
contract, the Operator, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees as follows:
A. Compliance with Regulations: The Operator (including consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts And Authorities, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. B. Non-discrimination: The Operator, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Operator will not participate directly or indirectly in the discrimination prohibited by the Nondiscrimination Acts and Authorities, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR part 21. C. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the Operator for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Operator of the Operator’s obligations under this contract and the Nondiscrimination Acts And Authorities on the grounds of race, color, or national origin. D. Information and Reports: The Operator will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Authority or the Federal Aviation Administration to be pertinent to ascertain compliance with such Nondiscrimination Acts And Authorities and instructions. Where any information required of a subcontractor is in the exclusive possession of another who fails or refuses to furnish the information, the Operator will so certify to the Authority or the Federal Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain the information.
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E. Sanctions for Noncompliance: In the event of the Operator’s noncompliance with the Non-discrimination provisions of this contract, the Authority will impose such contract sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to:
1. Withholding payments to the Operator under the contract until the Operator complies; and/or
2. Cancelling, terminating, or suspending this Agreement, in whole or in part.
F. Incorporation of Provisions: The Operator will include the provisions of paragraphs A through E in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The Operator will take action with respect to any subcontract or procurement as the sponsor or the Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Operator becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Operator may request the sponsor to enter into any litigation to protect the interests of the sponsor. In addition, the Operator may request the United States to enter into the litigation to protect the interests of the United States.
18.2 List of Pertinent Nondiscrimination Acts and Authorities. During the performance of this
contract, the Operator, for itself, its assignees, and successors in interest, agrees to comply with the following non-discrimination statutes and authorities; including but not limited to:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252),
(prohibits discrimination on the basis of race, color, national origin); • 49 CFR part 21 (Non-discrimination In Federally-Assisted Programs of The
Department of Transportation—Effectuation of Title VI of The Civil Rights Act of 1964);
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the
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programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act of 1990, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations at 49 CFR parts 37 and 38;
• The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures non-discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations;
• Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq).
18.3 Civil Rights. The Operator and its successors agree to comply with pertinent statutes,
Executive Orders and such rules as are promulgated to ensure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance.
This provision obligates the Operator or its successors for the period during which Federal assistance is extended to the airport through the Airport Improvement Program. In cases where Federal assistance provides, or is in the form of personal property; real property or interest therein; structures or improvements thereon, this provision obligates the Operator or any successor for the longer of the following periods:
(a) The period during which the property is used by the Authority or any transferee for a purpose for which Federal assistance is extended, or for another purpose involving the provision of similar services or benefits; or (b) The period during which the Authority or any transferee retains ownership or possession of the property.
18.4 Exclusive Rights. It is understood and agreed that nothing herein contained 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, and as said act may be amended from time to time.
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18.5 Subordination to Agreements. This Agreement is subject and subordinate to the provisions of any agreements heretofore or hereafter made between the Authority and the United States of America or the state of Iowa relative to the operation, maintenance, development, or administration of the Airport, the execution of which has been required as a condition precedent to the transfer of federal rights or property to Authority for Airport purposes, or to the expenditure of federal or state of Iowa funds for the improvement or development of the Airport, including the expenditure of federal funds for the development of the Airport in accordance with the provisions of the Federal Aviation Act of 1958, and as said act may be amended from time to time.
ARTICLE 19 GENERAL PROVISIONS
19.1 Rules, Regulations, and Policies. Operator shall observe and obey all rules, regulations,
and policies that the Authority may adopt, from time to time, with respect to the use of the Airport. Operator shall not violate and shall not knowingly permit its agents, contractors, invitees or employees acting on Operator's behalf to violate any such rules, regulations, or policies.
19.2 Compliance with Law. Operator shall comply, at all times, at its own cost and expense,
with all applicable ordinances and laws of city, county and state government and of the United States Government, and of any political division, subdivision, agency, authority or commission that has jurisdiction to pass laws or ordinances with respect to the Food and Beverage Facilities or to the uses permitted in this Agreement. Operator shall not allow any illegal activity to be conducted or operated on any Airport area. Operator shall comply with the provisions of the Iowa Smokefree Air Act, Iowa Code chapter 142D, and the administrative rules promulgated to implement the Act.
19.3 Reservation of Rights. Any and all rights and privileges not expressly granted to
Operator by this Agreement are hereby reserved for and to Authority. 19.4 Successors and Assigns Bound by Covenant. All the terms, covenants, and agreements
herein contained will be binding upon and shall inure to the benefit of successors, permitted assigns, and legal representatives of the respective parties hereto.
19.5 Warranty. Operator warrants that it has at least five years successful experience in the
management and operation of a public restaurant (or group of restaurants) that involves gross receipts of $4,000,000 or more per year.
19.6 Governing Law, Forum and Disputes. This Agreement and all claims or disputes arising
out of or relating to this Agreement or its subject matter are governed by the laws of the State of Iowa, without regard to its conflict of laws provisions, and any action, claim or proceeding arising out of or relating to this Agreement must be brought only in the Iowa District Court for Polk County, Iowa or the United States District Court for the Southern District of Iowa, Central Division. Each party hereby waives any objection, including
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any objection based upon improper venue or forum non conveniens, that it may have, now or in the future, to the bringing of any action, claim or proceeding in the Iowa District Court for Polk County, Iowa or the United States District Court for the Southern District of Iowa, Central Division.
19.7 Nonwaiver of Rights. No waiver of default by either party of any of the terms,
covenants, and conditions hereof to be performed, kept, and observed by the other party will be construed as, or operate as, a waiver of the terms, covenants, or conditions unless expressly agreed to by the party in writing, and any such waiver shall not operate as a waiver of any other terms, covenants, and conditions herein contained or any subsequent default of any of the terms, covenants, or conditions herein contained, to be performed, kept, and observed by the other party.
19.8 Severability. If one or more clauses, sections, or provisions of this Agreement, or the
application thereof, shall be held to be unlawful, invalid, or unenforceable, then such clauses, sections, and provisions shall be construed in a manner to best effectuate the intent of the parties and be lawful, valid, and enforceable, and the remainder of this Agreement and the application of its remaining provisions will not be affected thereby.
19.9 Force Majeure. Neither Operator nor Authority will be liable for delays in performance
caused by acts of God or government regulatory authority, war, riot, sabotage, storm, flood, inclement weather, strike or work stoppage, or other cause beyond the control of Operator or Authority. However, this provision does not excuse Operator from paying those fees set forth in the Authority rules and regulations, nor does it excuse compliance with Section 19.13, Taxes and Assessments.
19.10 Entire Agreement. This Agreement, together with all exhibits and attachments,
constitutes the entire agreement between the parties, and all prior representations, promises or statements, verbal or written, are merged in this Agreement. This Agreement supersedes and cancels any and all previous agreements and understandings on its subject matter between Operator and Authority.
19.11 Amendments. Any and all changes or amendments to this Agreement must be in writing
and duly executed by all parties. 19.12 Licenses and Permits. Operator shall obtain and/or maintain all applicable licenses and
permits required by federal, state, or local law. 19.13 Taxes and Assessments. Prior to the effective date of this Agreement, the Food and
Beverage Facilities are tax exempt. Operator shall be fully responsible for payment of any and all taxes, assessments, and charges levied against any taxable interest of Operator acquired in this Agreement from and after the date of this Agreement. Operator shall also be responsible for payment of any and all personal property taxes levied against any personal property placed upon the Food and Beverage Facilities by Operator. Operator shall pay all such taxes, assessments and charges as the same become due and payable. Such taxes, assessments and charges shall not be included in operating expenses. Upon request, Operator shall deliver to Authority duplicate receipted tax statements showing
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such taxes, assessments and charges as having been paid prior to delinquency. Taxes for the fiscal year in which this Agreement is terminated shall be paid upon such termination in a prorated amount equal to one-twelfth of the taxes due and payable for the preceding fiscal year multiplied by the number of months in the fiscal year of such termination which elapsed prior to and including the month of such termination.
19.14 Compliance with Federal Aviation and Transportation Security Regulations.
A. Operator agrees to comply at all times with Federal Aviation Regulations (FAR) Part 139, and Transportation Security Regulations (TSR) Parts 1500, 1520 1540 and 1542, Authority's policies, regulations and ordinances, Authority's Transportation Security Administration approved Airport Security Program, and any other applicable laws, regulations and rules as such currently exist and are amended from time to time. Operator further agrees that any fines levied upon Authority, its officers, employees, agents, and members of Authority's boards and commissions and employees, agents or officers of Authority's boards and commissions pursuant to enforcement of FAR Part 139 and TSR Parts 1500, 1520, 1540, and 1542 due to acts or omissions by Operator, Operator's agents, servants, officers, employees, independent contractors, or patrons shall be borne by Operator. Operator further agrees to indemnify and hold harmless Authority, its officers, employees, agents, and members of Authority's boards and commissions, and employees, agents, or officers of Authority's boards and commissions from any and all fines so levied and from any and all claims, demands, liabilities, or expenses of every kind or nature related to such levy or defense to such levy (including, but not limited to, salary of attorneys employed by Authority) which Authority or any of its officers, employees, or other persons set out above shall or may at any time sustain or incur by reason of or in consequence of such acts or omissions by Operator. Operator further agrees to indemnify and hold harmless Authority, its officers, employees, agents, and members of Authority's boards and commissions, and employees, agents, or officers of Authority's boards and commissions from any and all claims, demands and or lawsuits arising out of Operator's or Operator's employees' failure to comply with FAR Part 139 and TSR Parts 1500, 1520, 1540 and 1542, the Airport Security Program or any other applicable law, regulation or rule.
B. Operator agrees to control all persons and vehicles entering any Airport restricted
area (including aircraft movement area) through the Food and Beverage Facilities in accordance with the Des Moines International Airport Security Program and in compliance with TSR Parts 1500, 1520, 1540, and 1542 as such currently exist and are amended from time to time.
19.15 Right to Amend. In the event that the Federal Aviation Administration or its successors
requires modifications or changes in this Agreement as a condition precedent to the granting of funds for the improvement of Airport, Operator agrees to consent to such amendments, modifications, revisions, supplements or deletions or any of the terms, conditions, or requirements of this Agreement as may be required to obtain such funds; provided, however, that in no event will Operator be required, pursuant to this paragraph, to agree to a reduction in the Management Fee or to a change in the use, provided it is an
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authorized use, to which Operator has put the Food and Beverage Facilities. 19.16 War or National Emergency. During the time of war or national emergency, Authority
shall have the right to lease the landing area of the Airport or any part thereof to the United States Government for military or naval use, and, if such lease is executed, the provisions of this instrument insofar as they are inconsistent with the provisions of the lease to the Government shall be suspended.
19.17 Subordination to Bond Ordinance.
A. This Agreement is made subject and subordinate to any Airport Bond Resolution enacted by Authority, whether enacted prior to or as of the time of execution of this Agreement or thereafter.
B. In the event of conflicts between this Agreement and the Bond Resolution, the Bond Resolution shall govern.
C. It is mutually understood and agreed that, so long as any bonds secured by a Bond Resolution are outstanding, the deposit and application of Airport revenues shall be governed by the Bond Resolution.
19.18 Americans with Disabilities Act. Operator shall comply with the Americans with Disabilities Act and the Rehabilitation Act, and any administrative rules promulgated to implement the Acts, with regard to Operator's operations in the Food and Beverage Facilities.
19.19 Agreement Construction. Words and phrases used in this Agreement are to be construed
as in the singular or plural number, and as masculine, feminine, or neuter gender, and as disjunctive or conjunctive, according to the context. Any rule to the effect that ambiguities are to be resolved against the drafting party will not apply to the interpretation of this Agreement or any amendments or exhibits.
19.20 Representations of Parties. Authority and Operator represent that each has the full power
and proper authority to make and execute this Agreement, to exercise its rights, powers and privileges as described herein, and to perform the agreements and covenants set forth herein. Operator further warrants that it has the authority to enter into and be bound by the terms of this Agreement and no order of any bankruptcy or other court, and no agreement with others, prohibits or limits such authority.
19.21 No Third Party Beneficiaries. This Agreement is for the benefit of Operator and the
Authority only. This Agreement shall not create any rights in any person not a party to this Agreement.
19.22 Notices.
A. Notices required herein must be given by registered or certified mail, return receipt requested, by depositing the same in the United States mail in the United States, postage
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prepaid, or by certified overnight delivery via a commercial carrier. Either party has the right, by giving written notice to the other in accordance with this Section 19.22, to change the address at which its notices are to be received. Until any change is made, notices are to be delivered as follows:
Authority: Executive Director Des Moines Airport Authority 5800 Fleur Drive, Room 207 Des Moines, Iowa 50321-2854 Telephone: (515) 256-5100 Operator: Successful Proposer 123 Main Street City, State ZIP Telephone: (123) 555-1212
B. Any notice given by registered or certified mail, return receipt requested, or by overnight delivery will be effective upon receipt by the addressee as shown on the mail or delivery receipt. If notice is given in any other manner or at any other place, it must also be given at the place and in the manner specified above.
19.23 Waiver of Visual Artists Rights. Operator shall not install any object in or on the Food and Beverage Facilities or commence construction of any improvement that constitutes a work of visual art under the Visual Artists Rights Act of 1990 and any corresponding provision of State or local law now in effect or hereafter enacted ("VARA"), unless and until Operator has provided to the Authority either (a) a written opinion in a form and from a law firm reasonably acceptable to the Authority that VARA does not apply; or (b) a written waiver from the author of a work of visual art, in form and substance reasonably satisfactory to the Authority, which identifies specifically the work of visual art and the uses of that work to which the waiver applies in accordance with 17 U.S.C. §106A(e)(1) and any similar applicable provision of state or local law.
19.24 Liens. Neither the Operator nor anyone claiming by, through, or under the Operator shall
have the right to file or place any mechanic’s liens, security interests or other lien of any kind or character whatsoever, upon the Food and Beverage Facilities or upon any improvement thereon, or upon the interest of the Operator, and notice is hereby given that no contractor, subcontractor, or anyone else who may furnish any material, service or labor for any improvements, alterations, repairs or any part thereof shall at any time be or become entitled to any lien on the Food and Beverage Facilities, and for the further security of the Authority, the Operator covenants and agrees to give actual notice thereof in advance to any and all contractors, subcontractors, and anyone else who may furnish or agree to furnish any such material, service or labor.
Authority shall have, in addition to any lien given by law, a security interest as provided by the Uniform Commercial Code of Iowa upon all of Operator’s personal property,
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whether now owned or hereafter acquired, kept and used on the Food and Beverage Facilities by Operator. Authority may proceed at law or in equity with any remedy provided by law or by this Agreement because of Operator’s default in its performance.
19.25 Authority’s Right to Make Good Default. If Operator should commit any default in the
performance of, or compliance with, any of the terms or conditions of this Agreement, then, in addition to all other remedies now or hereafter provided by law, Authority may, but need not, perform such term or condition, or make good such default and any amount advanced shall be repaid forthwith on demand, together with interest at the maximum rate permitted by law, from date of advance.
19.26 Rights and Remedies Cumulative. The various rights, powers, options, elections and
remedies of either party provided in this Agreement shall be construed as cumulative and no one of them as exclusive of the others, or exclusive of any rights, remedies or priorities allowed either party by law, and shall in no way affect or impair the right of either party to pursue any other equitable or legal remedy to which either party may be entitled as long as any default remains in any way unremedied, unsatisfied or undischarged.
19.27 Certification. Operator certifies that it is not acting, directly or indirectly, for or on behalf
of any person, group, entity or nation named by any Executive Order or the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person” or any other banned or blocked person, entity, nation or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control; and it is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Operator hereby agrees to defend, indemnify and hold harmless Authority from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.
19.28 Survival. The representations, warranties, and indemnities contained in this Agreement
shall survive the termination or expiration of this Agreement. In addition, any terms and conditions contained in this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall so survive.
19.29 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
SIGNATURES ARE ON THE FOLLOWING PAGE
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The parties have executed this Agreement as of the date first above written. DES MOINES AIRPORT AUTHORITY (OPERATOR) By By: Edgar F. Hansell, Chairperson Des Moines Airport Authority Board Name: (Type or Print) Title: ATTEST:
By: By ________________________________
Name: Christy L. Stanley, Staff Assistant Secretary (Type or Print)
Title:
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Exhibit A (1 of 3) FOOD AND BEVERAGE LOCATIONS
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Exhibit A (2 of 3) PRE-SECURITY FOOD AND BEVERAGE SUPPORT SPACE
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Exhibit A (3 of 3) POST-SECURITY FOOD AND BEVERAGE SUPPORT SPACE
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Exhibit B INSURANCE ENDORSEMENTS Des Moines International Airport
DES MOINES AIRPORT AUTHORITY
CANCELLATION AND MATERIAL CHANGES ENDORSEMENT Thirty days Advance Written Notice of Cancellation, Non-Renewal, Reduction in insurance coverage and/or limits and 10 days written notice of non-payment of premium shall be sent to: Contracts Manager, Des Moines Airport Authority, 5800 Fleur Drive, Suite 207, Des Moines, Iowa 50321. This endorsement supersedes the standard cancellation statement on the Certificate of Insurance to which this endorsement is attached.
DES MOINES AIRPORT AUTHORITY
ADDITIONAL INSURED ENDORSEMENT The Des Moines Airport Authority, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees, and volunteers, are included as Additional Insureds with respect to liability arising out of Operator's operations on or use of the Airport. This coverage shall be primary to the Additional Insureds, and not contributing with any other insurance or similar protection available to the Additional Insureds, whether other available coverage be primary, contributing or excess.
DES MOINES AIRPORT AUTHORITY GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Non-Waiver of Government Immunity. The insurance carrier expressly agrees and states that the purchase of this policy and the including of the Des Moines Airport Authority as an Additional Insured does not waive any of the defenses of governmental immunity available to the Des Moines Airport Authority under Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. 2. Claims Coverage. The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. 3. Assertion of Government Immunity. The Des Moines Airport Authority shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. Nothing contained in this endorsement shall prevent the carrier from asserting the defense of governmental immunity on behalf of the Des Moines Airport Authority. 4. Non-Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the Des Moines Airport Authority under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the Des Moines Airport Authority. 5. No Other Change in Policy. The insurance carrier and the Des Moines Airport Authority agree that the above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy.
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Exhibit B INSURANCE ENDORSEMENTS Des Moines International Airport
DES MOINES AIRPORT AUTHORITY ALTERNATE EMPLOYER ENDORSEMENT
This endorsement applies only with respect to bodily injury to your employees while in the course of special or temporary employment by the Des Moines Airport Authority (“Authority”). Workers Compensation Insurance will apply as though the Authority is insured. If an entry is shown in Item 3 of the Schedule, the insurance afforded by this endorsement applies only to work performed under the contract or project named in the Schedule. Under Workers Compensation Insurance, we will reimburse the Authority for the benefits required by Iowa workers compensation law if we are not permitted to pay the benefits directly to the persons entitled to them. The insurance afforded by this endorsement is not intended to satisfy the Authority’s duty to secure its obligations under Iowa workers compensation law. We will not file evidence of this insurance on behalf of the alternate employer with any government agency. We will not ask any other insurer of the Authority to share with us a loss covered by this endorsement. Premium will be charged for your employees while in the course of special or temporary employment by the Authority. If an injury occurs, all duties required of the policyholder will also apply to the Authority. The Authority will recognize our right to defend and our right to inspect under the policy.
SCHEDULE 1. Alternate Employer Name and Address 2. State of Special or Temporary Employment 3. Contract or Project This endorsement changes the policy to which it is attached and is effective on the date issued unless
otherwise stated.
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Exhibit C OPERATOR'S RESPONSE TO
AIRPORT FOOD AND BEVERAGE MANAGEMENT SERVICES REQUEST FOR PROPOSALS
(UNDER SEPARATE COVER)
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