Birmingham-Shuttlesworth
International Airport Inc.
FOOD AND BEVERAGE
REQUEST FOR PROPOSALS
November 2011
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL
AIRPORT INC.
REQUEST FOR PROPOSALS
FOR
FOOD AND BEVERAGE CONCESSION
NOVEMBER 2011
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
Food and Beverage Concessions
Request for Proposals
Table of Contents
Section
I.
Page
THE OPPORTUNITY .......................................................................
A. Purpose .................................................................................
B. Guiding Principles ....................................................................
C. Background of the Birmingham-Shuttlesworth International Airport
D. Background to the Airport Expansion Project ...............................
E. Background to Birmingham.......................................................
F. Description of the Passenger Market and Existing BirminghamShuttlesworth International Airport ............................................
G. Description of the Planned New Food & Beverage BirminghamShuttlesworth International Airport ............................................
1
1
1
1
2
2
II.
PROCEDURES AND REQUIREMENTS.................................................
A. Recommended Briefing ............................................................
B. Submittal Requirements ...........................................................
C. Request for Proposal Schedule ..................................................
D. Eligibility Conditions.................................................................
9
9
10
13
14
II.
REQUIRED PROPOSAL DOCUMENTS ................................................
A. Executive Summary.................................................................
B. Proposal Forms .......................................................................
C. General Business Information ...................................................
D. Corporate Financial Information.................................................
E. Evidence of Insurability ............................................................
F. Experience Statement ..............................................................
G. Guarantees and Rent ...............................................................
H. Exceptions to the Lease Agreement............................................
I. Capital Investment for Submitted Concessions ............................
J. Concepts and Facility Plans for all Outlets Included in the
Concessions Package ...............................................................
K. Management and Operations Plan ..............................................
L. Inventory and Pricing...............................................................
M. Marketing Plan ........................................................................
N. Projected Annual Income and Cash Flow .....................................
O. Proposal Security Deposit .........................................................
P. LEED .....................................................................................
Q. Airport Concession Disadvataged Business Enterprise (ACDBE)
Policy ....................................................................................
R. Other Information ...................................................................
15
15
15
15
15
16
16
16
17
17
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Food & Beverage
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7
18
19
20
20
21
21
22
23
25
List of Appendices
Appendix
Appendix
Appendix
Appendix
Appendix
Appendix
Appendix
A.
B.
C.
D.
E.
F.
G.
Planned Food & Beverage Plans
Business Information Template
Proposal Form
Pro Forma Forecast Format
Irrevocable Letter of Credit Format
Draft Sample Lease Agreement
Construction Phasing Schedule
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
Food & Beverage
Request for Proposals
1
I.
THE OPPORTUNITY
A. Purpose
The Birmingham-Shuttlesworth International Airport Authority (Authority) is inviting
experienced food and beverage master concessionaires to submit proposals for the
operation of the future Food and Beverage operation in the newly expanded and
refurbished air terminal building of the Birmingham-Shuttlesworth International
Airport (“the Airport”).
The purpose of this document (the “Request for Proposal” or “RFP”) is to provide
interested concessionaires with an overview of the opportunity, as well as
instructions on how to respond.
Prospective operators (“Proponents”) shall
submit their proposals (“Proposals”) in conformity with the procedures and
requirements set in this Request for Proposal.
B. Guiding Principles
The Authority wishes to attract Proponents who will work together with the
Authority to:
 Consistently provide high quality products and high levels of customer service;
 Maximize quality and product choices to provide the airport users with a variety
of Food and Beverage offerings;
 Maximize sales productivity;
 Provide pricing within a reasonable range of off-airport prices for similar goods;
 Provide friendly, efficient, and knowledgeable staff;
 Offer products that reflect both the unique characteristics of Birmingham and a
national flavor;
 Enhance the image of the Birmingham-Shuttlesworth International Airport as a
“world class” facility; and
 Provide interesting and exciting Food & Beverage facility designs.
C. Background of the Birmingham-Shuttlesworth
International Airport
Birmingham-Shuttlesworth International Airport formerly Birmingham Municipal
Airport and later Birmingham International Airport, is Alabama's largest airport
serving the Greater Birmingham area and surrounding Southeastern cities. The
Airport offers more than 120 daily flights to over 25 cities throughout the United
States. Birmingham-Shuttlesworth International Airport (BHM) presently ranks in
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
Food & Beverage
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the country's top 75 airports in terms of passengers served annually. BHM served
over 2.95 million passengers in 2010.
The Airport is governed by the Birmingham-Shuttlesworth Airport Authority.
D. Background to the Airport Expansion Project
The Authority, is undertaking a capital improvement program that includes a newly
constructed Terminal A and a rehabilitation of the existing terminal building. The
design includes a complete rehabilitation and expansion of the concession areas at
the Airport.
The new airside concession areas, when completed, will be the primary shopping
area, and will include major Food and Beverage areas. The landside area will also
include a Food and Beverage and retail area. The airside concession opportunities
focus on two concession hubs at the entrance of Terminal A and C and a restaurant
in Terminal B.
A complete description of the future Food and Beverage
Birmingham-Shuttlesworth is included in section E below.
The Birmingham-Shuttlesworth International Airport is the “Front Door” to Alabama
for most air travelers and as such the retail program should greet the arriving
passengers with an immediate sense of where they are. The Tenant Design Guide is
intended to assist the Tenant in conceiving new design concepts to propose for
stores that are themed to incorporate an Alabama local and regional “Sense of
Place.” The airport is interested in not only promoting the commonly known aspects
of Alabama through its retail program, but also the wide variety of cultural,
historical, and recreational opportunities of which travelers and residents may not
be aware. Tenants are encouraged to research and discover the diverse “Sense of
Place” theme ideas Birmingham and greater Alabama has to offer. To stimulate the
creative process for tenant designs, the following is an unranked and incomplete
catalog of “points of interest” proposers may find helpful in developing store
designs.
E.
Background to Birmingham
Birmingham was founded in 1871 in a special place rich in coal, iron ore, and
limestone, essential ingredients in the manufacturing of steel. By 1890 it became
known as the “Magic City” for how quickly it grew up. Steel manufacturing has been
a long time staple industry for the city,
Birmingham commissioned a three story tall iron sculpture of Vulcan, the god of the
forge, to be designed by Giuseppe Moretti, and built by the Birmingham Steel and
Iron Company, as an entry in the 1904 St. Louis Worlds Fair. It was immensely
popular and received the Grand Prize. The statue stands proudly today overlooking
Birmingham in Vulcan Park on Red Mountain.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
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Birmingham was a hotbed of civil rights turmoil in the 1960s and 1970s. It took
many years for the city to recover from events of those years. In 1993 the opening
of the Birmingham Civil Rights Institute went a long way towards healing the
wounds of the past and bringing a culturally diverse community together.
Auto Racing and motor sports are very popular in the state. The Talladega Super
Speedway opened its doors in 1969, and has been the location where many
national records have been set and many famous racers have made their name.
NASCAR racing season is a very busy time of year in Birmingham.
The Barber motor sports Museum and Park is the home of the worlds best
motorcycle collection, displaying 600-1200 vintage and modern motorcycles at any
given time. They also have the largest collection of Lotus racing cars in the world.
Downtown Birmingham has many fine turn of the century examples of Architecture
including the Alabama theatre, built in 1927 and known as the showplace of the
south, whose two-story boldly lit marquee is a regional icon.
Alabama’s Sipsey Wilderness Area, at 25,000 acres is the third largest national
wilderness area east of the Mississippi. Located in the Bankhead National Forest,
Sipsey offers visitors a primitive recreational experience. Hiking, camping, hunting,
fishing, and horseback riding are allowed amid the numerous streams, lush canyons
and bluffs.
Rickwood Caverns in western Blount County contains some of the most massive
and fascinating underground formations in the state.
Birmingham is famous for its beautifully designed golf courses. Renaissance Ross
Bridge Golf resort and Spa has hosted the regions Golf Classic each May. It has
become one of the most popular venues of the Senior Tour. Shoal Creak has twice
hosted The PGA Championship and The Old Overton Club at Liberty Park has also
hosted PGA events.
Lake Neely Henry is a favorite fishing destination for pro and weekend fisherman.
The fertile waters of this 11,200 acre Coosa River lake has hosted notable fishing
events including the 1992 Wrangler B.A.S.S. National Championship, the 1996
BASS N’GAL Classic and the 1997 BASS Masters Alabama Invitational. Other lakes
such as Lake Logan martin, Smith Lake, and Bankhead Reservoir, are other
regional favorites for trophy fishing.
F.
Description of the Passenger Market and Existing
Birmingham-Shuttlesworth International Airport
Passenger Market
The passenger market using the Airport is 100% domestic. Exhibit I-1 depicts the
passenger volumes for the calendar years 2002 through 2010 inclusive. Exhibit I-2
depicts the monthly volumes for 2010 – September 2011.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
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Exhibit I-1. Birmingham-Shuttlesworth International Airport Passenger Volumes
for years 2002 to 2010
Exhibit I-2. Birmingham-Shuttlesworth International Airport Monthly Passenger
Volumes for 2010 – September May 2011
Month
Enplaned
Deplaned
Total
2010
January
February
March
April
May
June
July
August
September
October
November
December
Total
106,117
95,565
120,456
122,488
131,090
132,882
140,997
121,542
122,300
134,239
125,311
123,091
1,476,078
108,129
95,554
123,340
121,010
127,012
133,324
140,663
124,503
121,834
136,117
124,036
118,829
1,474,351
214,246
191,119
243,796
243,498
258,102
266,206
281,660
246,045
244,134
270,356
249,347
241,920
2,950,429
2011
January
February
March
April
May
June
July
August
September
Total
105,501
97,299
121,684
116,606
134,784
132,668
132,398
118,229
115,849
1,075,018
108,959
97,094
123,133
117,750
129,934
131,997
133,825
120,680
113,219
1,076,591
214,460
194,393
244,817
234,356
264,718
264,665
266,223
238,909
229,068
2,151,609
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
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For the purpose of allowing the reader to identify the major points of origin and
destination of the passengers, Exhibit I-3 summarizes the number of passengers
carried by each of the airlines having used the Airport in 2010 – September 2011.
Exhibit I-3. Birmingham-Shuttlesworth International Airport, Number of
Passengers by Air Carrier in 2010 and 2011 through September
PASSENGERS ENPLANED & DEPLANED
2010
2011
SOUTHWEST AIRLINES
1,330,592
343,192
71,544
182,742
4,922
967,450
130,644
61,993
264,981
0
282
95
23,754
109,771
559
539
128,165
137,029
33,522
139,030
20,030
39,031
54,733
39,935
66
0
2,151,609
DELTA AIRLINES
CONTINENTAL AIRLINES
AMERICAN AIRLINES
PSA AIRLINES
US AIRWAYS EXPRESS
UNITED AIRLINES
Southwest
ASA
Comair
Delta
NW Airlink
Mesaba
Chautauqua
Compass
Pinnacle
Shuttle America
Continental
ExpressJet
American
American Eagle
PSA
Air Wisconsin
Mesa
ExpressJet United
Skywest
Mesa United
Trans States
TOTAL
19,796
9,382
156,648
612
0
176,681
202,492
34,649
199,821
57,833
17,448
64,643
68,241
9,059
132
2,950,429
The Existing Food & Beverage
The Food and Beverage locations prior to commencement of construction included
seven dedicated food and beverage concessions. Six are operated and managed by
HMS Host and one location Charley’s Steak and Subs is operated by Gosh
Enterprise.
Landside:

Charley’s Grilled Subs is locally managed and operated unit. Charley’s offers
subs and salads;

Pizza Hut;

Mrs. Field’s/TCBY;

Terminal Station Bar owned by the Authority and operated by HMS Host; and

Golden Rule was vacated prior to commencement of construction.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
Food & Beverage
Request for Proposals
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Airside:
All airside food/beverage locations are operated by HMS Host. These include:

A Limited Service Snack/Bar located in the Rotunda Terminal C;

Quizno’s, formerly Wall Street Deli Terminal C;

A bar/food unit at the entrance to Terminal C (Closed once construction
commenced but included in the space and sales data that follows.); and

A bar/food unit at the entrance to Terminal B (Closed once construction
commenced but included in the space and sales data that follows.).

HMS Host has opened a Starbuck’s and a Samuel Adams Brewery in Concourse
C to handle the increased number of passengers during the initial phase of the
construction project but will close when Concourse C begins renovation. These
locations are not included in the sales data or space identified prior to
construction.
Exhibit I-4, summarizes the current space allocation prior to construction and
Exhibit I-5 states the revenue information reported by the current concessionaires.
Exhibit I-4. Space Allocation of the Food and Beverage
Units Prior to Construction
TENANT
HMS Host International
AREA
LEASED
Sq. Ft.
6,408
TCBY/Mrs. Fields
642
Pizza Hut
420
Charley’s Steak & Subs
500
Golden Rule
646
It should be noted that the Golden Rule closed prior to construction.
In 2011 HMS Host total square footage increased by 100 sf due to the opening of
Starbucks and Sam Adams Brewery and the closing of the Varsity Sports Café and
Raceway Café.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
Food & Beverage
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Exhibit I-5. Total Gross Sales 2008 – Second Quarter 2011
2008
2009
2010
FOOD
HOST
Raceway Café Concourse B
Pizza Hut Express Concourse C
Rotunda Snack Bar Concourse C
Varsity Sports Café Concourse C
Wall Street Deli Concourse C
Sam Adams Bar Concourse C
Starbucks Concourse C
Airport Lounge Foodcourt
Food Court
PIZZA HUT Food Court
TCBY/Mrs. Fields Food Court
CHARLEY'S STEAKERY Food Court
TOTAL
$
$
$
$
$
2,825,730.00
191,538.00
91,590.00
146,968.00
3,255,826.00
$
$
$
$
$
2011
1st Quarter
2011
2nd Quarter
2011
3rd Quarter
2,747,229.00
132,892.00
29,179.00
416,527.00
3,325,827.00
$525,010.00
$121,694.00
$936,651.00
$181,615.00
$1,472,593.00
$0.00
$0.00
$3,722.00
$0.00
$0.00
$105,685.00
$501,689.00
$3,848,659.00
$315,996.00
$23,779.00
$157,548.00
$171.00
$101,184.00
$106,519.00
$40,239.00
$0.00
$36,929.00
$0.00
$23,745.00
$105,173.00
$911,283.00
$100,507.00
$19,531.00
$226,104.00
$0.00
$0.00
$136,197.00
$228,414.00
$0.00
$341,389.00
$0.00
$23,878.00
$112,518.00
$1,188,538.00
$0.00
$19,557.00
$237,474.00
$0.00
$0.00
$149,131.00
$268,727.00
$0.00
$377,803.00
$0.00
$20,455.00
$88,902.00
$1,162,049.00
$218,265.00
$389,152.00
$0.00
$354,126.00
$115,768.00
$101,418.00
$38,960.00
$106,129.00
$0.00
$0.00
$45,774.00
$61,903.00
$174,454.00
$0.00
$0.00
$0.00
$68,724.00
$204,208.00
$0.00
$0.00
$1,077,311.00
$246,507.00
$282,131.00
$272,932.00
ALCOHOL
HOST
Raceway Café Concourse B
Rotunda Snack Bar Concourse C
Sam Adams Concourse C
Varsity Sports Café Concourse C
Airport Lounge Foodcourt
TOTAL
$
959,703.00
$
847,312.00
*Note commencing in 2010 all Pizza Hut Express Sales numbers are reported in the Concourse C location.
G. Description of the Planned New Food & Beverage
Birmingham-Shuttlesworth International Airport
The Terminal Building is currently being refurbished and expanded, and upon
completion, the space available for food and beverage concessions will be
constructed to maximize exposure to the passenger and creating the potential for
increased revenue.
General
Concessions have been laid out in the new terminal plan to:
 Maximize their exposure to passengers;
 Enhance customer service;
 Optimize sales;
 Maximize possible synergies between food & beverage concessions and retail
shops, by providing views of impulse oriented concessions from the food service
seating area;
 Maximize customer comfort and ease of use.
Floor Plans of the proposed Food & Beverage are included herein as Appendix A.
Included in these drawings are the proposed construction dates, impacted areas of
the current concessions and the opening dates of the newly constructed and
renovated areas of the terminal.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
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Request for Proposals
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Landside Area
The Landside Area Food and Beverage consists of two units. One unit to address
opportunities for those individuals that may be accompanying passengers on the
ticketing/security level of the terminal and one unit on the baggage level to handle
individuals waiting for arriving passengers, taxi and limo drivers and other
appropriate individuals.
Airside Departures Area
The Airside Departures Area, which will be accessible only to departing passengers
is where the bulk of the new concessions including food & beverage operation, will
be implemented.
Summary of Future Food & Beverage
Exhibit I-7 summarizes the Landside and Airside Food & Beverage opportunities
along with the approximate size of each concession package.
For a complete listing of the stipulated opening hours, the Proposers should refer to
Appendix D of the Draft Sample Lease Agreement.
Exhibit I-7. Planned New Food & Beverage
Phase 1
Phase 2
800
697
1,000
931
640
509
3,227
870
606
1,930
875
701
1,645
628
no
no
no
no
yes
yes
yes
yes
yes
yes
yes
yes
yes
yes
800
1,295
949
792
585
no
yes
yes
yes
Square Feet
Storage Space
Food/Beverage
Concessions F1 + C1 (T-2506)
Concessions F2 (T-2338)
Concessions F3 (T-2337)
Concessions F5 (T-1031)
Concessions F6 (A-2042)
Concessions F7 (A-2041)
Concessions F8 (B-2015)
Concessions F9 (A-2005)
Concessions F10 (A-2006)
Concessions F11 (A-2007)
Concessions F12 (C-2007)
Concessions F13 (C-2008)
Concessions F14 (C-2006)
Concessions F16 (C-2034)
News/Gift
Concessions F1 + C1 (T-2506)
Concessions C4 (A-2010)
Concessions C5 (A-2038)
Concessions C6 (C-2022)
Concession News&Gifts (B-2005)
yes
yes
Specialty Retail
Concessions S1 (C-2005)
Concessions SV2 (A-2011)
SV1
Concessions SV3 (C-2003)
Concessions SV4 (B-2030)
Concessionaire (T-2618)
627
65
yes
yes
258
91
557
yes
yes
609
706
167
126
yes
yes
yes
yes
yes
Storage
Concessions Storage (T-2616_
Concessions Storage (A-2014)
Concessions Storage (T-1805)
Concessions Storage (T-1808)
News/Gift
Food/Beverage
Food/Beverage
News/Gift
Phase I 12/31/2012
Phase II 12/31/2014
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
Food & Beverage
Request for Proposals
9
II. PROCEDURES AND REQUIREMENTS
A. Recommended Briefing
The Authority will hold a Pre-Proposal Briefing session on:
Wednesday December 14 2011,
2:30 to 4:00 pm
Medical Forum
Meeting Room C
950 22nd Street North
Birmingham, AL 35203
The purpose of the briefing session will be to discuss the requirements and
objectives of this Request for Proposal. A detailed presentation of the process and
of the Birmingham-Shuttlesworth International Airport Terminal Expansion Project
(“Airport Expansion Project”) will be made at the briefing session. Attendance at
the briefing session is recommended. The Authority reserves the right to refuse
any Proposal from any Proponent not having a representative at the briefing
session. Some of the information provided at the pre-proposal briefing session may
not be issued in an addendum.
All interested parties who plan on attending the briefing session shall notify the
Authority no later than December 8, 2011 by facsimile at (205) 599-0707 to the
attention of Mrs. Mary Mindingall or email [email protected].
Inquiries relative to this RFP are only to be submitted in writing via facsimile or
email [email protected] no later than ten (10) business days prior
to the close of this RFP to the following address. Failure to follow this procedure
may result in the proponent being disqualified from participating in this RFP
process.
Attn.:
Mrs. Mary Mindingall
Senior Vice President
Finance and Administration
Birmingham-Shuttlesworth International Airport
950 22nd Street North, Suite 750
Birmingham, Alabama 35203
Fax.: (205) 599-0707
The Authority representatives will attempt to answer all written questions received
in advance of the pre-proposal briefing session as well as oral questions received
during the briefing session.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
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The Authority will provide a summary of all questions and answers discussed at the
briefing session and any changes to the requirements of the Request for Proposal in
an addendum to the RFP. This addendum will form part of the RFP package and will
be forwarded to all parties attending the briefing session.
B. Submittal Requirements
The Proposal
Each Proponent shall submit eight copies of the Proposal as follows:
 One (1) original and seven (7) copies that includes all photographs, sketches
and artist renderings; and
 One copy must be submitted in an easily reproducible format (either unbound or
in a 3-ring binder)
Proposals shall be submitted in the form set out in Section III below. The Proposal
shall constitute a formal offer to operate the specified concession package (the
“Submitted Concessions”) in accordance with the terms and conditions of the
Draft Sample Lease Agreement contained in Appendix F herein (“Draft Sample
Lease Agreement”) and shall contain all documents and information required
under this Request for Proposals. The Proposal shall be completed, dated, and
executed by the Proponent before witnesses. Each page of the Proposal and all
documents attached thereto shall be initialed by the Proponent. Said required
documents shall form an integral part of the Proposal which shall constitute a
formal commitment on the part of the Proponent with respect to its representations
and undertakings under its Proposal.
Each Proponent shall inform the Authority of its desired amount of office space
and/or storage space at the Airport and such spaces, if available, shall be subject to
separate lease agreements at the then current rental rates set by the Authority.
Type and Duration of Agreements
The term of the Lease Agreements between the successful Proponents and the
Authority will be:
 An initial operating period of seven (7) years commencing with the completion
of this terminal expansion and renovation, with an Airport Authority option to
renew for three (3) additional years, for a total of ten (10) years, preceded by;
 A construction/”fixturing” period of up to 90 calendar days; and
 If at the end of the seven (7) year term the parties can not agree to terms for
the additional optional three years, the Authority has the right to advertise for a
new concessionaire.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
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Selection Process/Criteria
A Proposal Evaluation Committee will review all technically compliant Proposals
submitted. The Authority may retain external experts to provide advice and
support in the review of the submissions.
Each Proposal will be evaluated based on the following criteria:
 Financial Return to the Authority:
 Proposed percentage rents and compatibility of these proposed percentages
with comparable airports;
 Proposed Minimum Annual Guaranteed Rents; and
 Reasonableness and completeness of proponent’s Pro-Forma Financial
Forecasts. The format and requirements are detailed in Appendix D of this
document. (Weighting 20%)
 ACDBE Program

The Authority has adopted a 30% ACDBE goal as part of this terminal
project.
Firms are urged to obtain the ACDBE terminal project goal.
(Weighting 20%)
 Concept and Design of the Food and Beverage Concessions included in
the Proposal:
 Proposed concept and layout;
 Quality and creativity of the proposed design concept;
 Proposed materials, furnishings, fixtures, and equipment, including color
board and cut sheets;
 Proposed displays and signage;
 Quality and variety of the proposed product offer; and
 Proposed product pricing. (Weighting 15%)
 Proposed Capital Investment Plan and Financial Capability:
 Reasonableness and level of the proposed capital investment;
 Proposed refurbishment plan;
 The proposed schedule of construction and the projected dates of occupancy;
and
 The financial stability and capability of each Proponent based on the financial
statements and bank references that are included as part of the proposal
submission.
(Weighting 25%)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
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Request for Proposals
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 Operations and Management Plan and Firm’s Experience:
 Commitment to the Authority’s required hours of operation;
 Proposed staffing plan, including concept along with customer service and
other training;
 Proposed management structure;
 Proposed revenue control systems and procedures;
 Proposed inventory management and control systems;
 Proposed quality assurance standards and procedures;
 Details of anticipated inventory turnover and restocking procedures and
 The firm’s record and experience in operating similar outlets on and off
airport, as well as the experience of the senior management and/or owner(s)
of the firm.
Proponents should review closely the attached Authority’s Draft Sample Lease
Agreement for more information about the Airport’s minimum operating
standards (Appendix F). (Weighting 15%)
 Marketing Plan:
 Corporate marketing philosophy and policy;
 Complete outline of proposed products/services to be sold at each location;
 Proposed pricing schedules;
 Strategies for product presentation and appearance; and
 Advertising and promotional to be implemented. (Weighting 5%)
Oral Presentation
At the sole discretion of the Airport Authority Board, Proponents may be asked
to present their proposals orally and/or provide clarification regarding their
Proposals. The time, date, and location of these presentations will be determined
after the Closing Date of the Request for Proposals and the Authority’s initial review
of the Proposals.
General Terms and Conditions
 The Authority reserves the right to:

Add, delete and/or negotiate with a Proponent, an agreement containing
different and/or additional items or terms without reference to other
Proponents or Proposals;

Disqualify a Proponent in the event that, in the sole discretion of the
Authority, its Proposal does not contain sufficient information to permit a
thorough analysis;
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13

Verify the validity of the information supplied and to reject any Proposal
where the contents appear to be incorrect or inaccurate in the Authority’s
estimation;

Accept Proposals in whole or in part;

In it’s sole discretion, to cancel this RFP without award or compensation to
Proponents, their officers, directors, employees or agents;

Reject any and all Proposals;

Accept the Proposal(s) which, in the sole opinion of the Authority, is (are)
deemed the most advantageous to the Authority; and

Request any other information it requires to evaluate the submissions.
Failure to provide the information requested may result in the proposal being
disqualified;
 All financial information must be presented in U.S. dollars;
 The cost of preparing the Proposal or providing additional information is the sole
responsibility of the Proponents. The Authority will not pay any fees to any
proponents or their agents;
 The successful Proponents will be required upon selection to provide further
security for the duration of the project. Details regarding the security deposit
are provided in the Sample Lease Agreement;
 The Proponents assume all responsibility for complying with all applicable laws
and regulations. The Proponents are also responsible for obtaining all permits
required by law or local authorities;
 Statistical data is provided for informational purposes only. The Authority is not
responsible for any inaccuracies, and does not warrant the validity or relevance
of data presented herein; and
 All Proposals become the property of the Authority and will not be returned to
proponents unless a written request to withdraw, signed by the authorized
signatory of the Proponent, is received prior to the closing date for the receipt of
Proposals.
C. Request for Proposal Schedule
The schedule for the preparation and evaluation of proposals is provided in Exhibit
II-2:
Exhibit II-2. Proposal Schedule
Request for Proposal Documents Available
Pre-Proposal Briefing Session
Proposal Due Date
Evaluation and Clarification Period
Shortlisted Firms Presentation to Authority
Target Award Date
November 16, 2011
December 14, 2011
February 14, 2012
March 4, 2012
April 4, 2012
April 30, 2012
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Proposals are due no later than 2:00 p.m. Central Time on February 14, 2012,
by which time all Proposals shall be recorded. Proposals will not be accepted after
this date and time for whatever reason.
Any late Proposals will be returned
unopened.
Proposals submitted by facsimile will not be accepted.
Proposals, clearly marked "Food & Beverage Concessions RFP", are to be submitted
to:
Mrs. Mary Mindingall
Senior Vice President
Finance and Administration
Birmingham-Shuttlesworth International Airport
950 22nd Street North, Suite 750
Birmingham, Alabama 35203
The Authority reserves the right to extend the Proposal due date and the Proposal
Schedule.
All changes or clarifications will be distributed to all registered
proponents in the form of addenda.
D. Eligibility Conditions
Proponent in arrears under Agreements
Shuttlesworth International Airport
with
Birmingham-
Any person or corporation who is in arrears or any corporation whose directors or
shareholders are, or were, directors or owners of shares beneficially or as nominees
for others, of any corporation in arrears in respect of any lease or license or other
agreement entered into with Birmingham Airport Authority will not be eligible to
submit a Proposal, unless financial arrangements satisfactory to the Authority are
made with respect to such amounts in arrears.
Solvency
Proponents’ financial history will be investigated and analysed, and only Proposals
offered by Proponents that the Authority considers solvent will be eligible.
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II. REQUIRED PROPOSAL DOCUMENTS
Each Proposal must include the following information to be considered technically
compliant. To facilitate the evaluation process, Proponents must present
information in the following order:
A. Executive Summary
The Proponent shall submit a summary of the prime features of the Proposal. The
Executive Summary should include a brief statement of how the Proponent meets
the requirements of the Request for Proposal. The Summary should also state that
the Proponent generally accepts the terms of the Draft Sample Lease Agreement.
B. Proposal Forms
To be technically compliant, a completed, signed, dated, and witnessed Specific
Proposal Form shall be included. The form to be used is provided in Appendix C.
These Proposals shall be unconditional.
C. General Business Information
Comprehensive disclosure of all relevant information is to be provided. A template
for the submission of this information is provided in Appendix B.
D. Corporate Financial Information
Financial Statements
The proponent shall include the following financial information with the Proposal, or
indicate that it is not available:
 Current fiscal year-to-date balance sheet and income statement;
 Audited financial statements for the past three years;
 If the proponent is a wholly-owned subsidiary, financial information of the
parent company; and
 If the proponent will be a franchise, partnership or joint venture, the financial
information of the franchisee, each partner or “joint-venturer”.
Bank References
Provide the names, addresses, and telephone numbers of two banking references.
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16
Credit References
Provide the names, addresses, and telephone numbers of three current business
credit references.
E.
Evidence of Insurability
The selected proponent will be required to carry the required insurance coverage as
detailed in the Draft Sample Lease Agreement. Certificates or other evidence from
an insurance institution should be included in the Proposal indicating the ability of
the proponent to obtain the required insurance.
F.
Experience Statement
The proponent must demonstrate its capability to successfully operate the proposed
Concession package. The information submitted should include but not be limited
to:
 History of the Proponent’s experience i.e., number of years in business, location
of headquarters, and local office (if applicable);
 The background and experience of the key officers and staff of the proponent
and/or of individuals or companies which will be providing specific services
under contract or otherwise;
 A listing of any similar airport outlets, that it operates as the case may be,
detailing the type of operation, key contractual terms and operational
references;
 Any other experience that the Proponent considers relevant;
 A listing of any retail agreements that have been cancelled prior to the end of
the term; and
 A listing of any retail agreements that have been renegotiated prior to the end
of the term.
G. Guarantees and Rent
The Proponent must offer to pay the Authority as rent for the right to operate the
Concession package, an amount equivalent to the greater of the following amounts:
 A minimum annual guaranteed rent (“Minimum Rent”) for each year of the
initial seven-year term of the Lease. Offered Minimum Rents shall increase from
year to year; and
 A percentage rent (the “Percentage Rent”) offered as a percentage of Gross
Revenue. The definition “Gross Revenue” is detailed in the Draft Sample Lease
Agreement.
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In addition, Proponents may offer at their option to the Authority to pay some other
formulas of rent (“Other Rent”) as long as these types of rents are to the financial
advantage of the Authority and are paid over and above the Percentage Rent
and/or Minimum Rent.
The Minimum Rent, the Percentage Rent and Other Rent (if applicable) shall be
payable in the manner described in the Draft Sample Lease Agreement.
H. Exceptions to the Lease Agreement
Proponents may include a list of exceptions to the terms of the Draft Sample Lease
Agreement, if any. All such exceptions shall be clearly stated on a separate page
labeled “Lease Agreement Exceptions”. Proponents are required to identify the
lease agreement provision objected to, the nature of the objection, and provide an
explanation of the objection as well as any proposed substitutions in language
requested for the consideration of the Authority.
I.
Capital Investment for Submitted Concessions
As the Authority will be turning over each concession space to the successful
proponent for renovation and improvement on an “as is” basis, the level of capital
investment together with the specific design concepts will be important criteria in
evaluating Proposals.
Proponents shall provide details on the breakdown of the initial capital investment
of each location, for the Submitted Concession package. The amounts should be
expressed in U.S. dollars in the following categories for each location:
Type of Expenditure
Architecture & Engineering Fees
Shell Construction Costs
Fixed Improvements
Furniture, Fixtures & Equipment
Electrical Costs
Ventilation Air Conditioning
Other (Specify)
Total
Amount (BD$)
$
The amounts must not include personal property, expendables, corporate overhead,
or ordinary maintenance expenditures.
Any financing or interest charges or
professional fees included in the capital must also be stated separately. Proof of
investment shall be remitted subsequently by the Proponent to the Authority.
The Proponent must also provide an estimate of annual refurbishment costs stated
in terms of a percentage of gross sales to be used to redecorate and rehabilitate
the concessions over the term of the lease.
The costs must only include
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expenditures related to leasehold improvements. The minimum acceptable amount
is one-half of one percent (0.5%) of the previous year’s Gross Revenue. At the
mid-point of the concession term the concessionaire must refurbish their space.
Drawings including material types and fixtures will need to be submitted to the
Authority for approval at a date to be agreed upon between the Authority and the
Proponent for each location.
The successful Proponents will be required to provide to the Authority an
Improvement Completion Bond.
J.
Concepts and Facility Plans for all Outlets
Included in the Concessions Package
Concession Concept
The proposal must clearly demonstrate:
 An understanding of the target market;
 How the proposed concepts, product lines, designs, strategies, and themes of
the concessions reflect the analysis of the target markets and address the tastes
and interests of the target markets; and
 How the concessions concepts will act to support the Guiding Principles.
Design and Layout of the Concession
The proposed operations must be compatible with the Guiding Principles as outlined
in Section I of this document, and complement the overall design and operation of
the new Terminal Buildings.
The outlet must in no way restrict passenger
processing operations through out-of-the-ordinary demands on the structure,
services, or physical plant of the building. The Authority requires that the overall
concessions be integrated aesthetically, functionally, and operationally into the
architectural and design scheme of the expanded and renovated airport facility.
For each of the outlets included in the Submitted Concession package, a clear
graphic representation must be provided:
 Proponents must explain the proposed concept designs and how it will comply
with the overall guidelines of the Tenant Design Guide. Copies of the Tenant
Design Guide will be distributed on demand to parties having obtained
this RFP document. The Tenant Design Guide includes a description of the
current utility capacity within the various areas of the terminal building.
Verification of capacity to meet code requirements and concepts needs, and
distribution of the systems within the leased areas will be the responsibility of
the successful Proponent(s). Any required relocation or upgrades of existing
utilities or installation of new utility services will be completed and paid for by
the successful Proponent(s);
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 Drawings should be provided on full size drawing sheets showing details
regarding store layouts; counter layouts; width of counters; product display
concepts (separate sketches, etc.); customer and staff access/egress; location
of cash registers, customer queues, storage, production and serving areas;
ability to serve physically challenged customers; and any other pertinent plans
regarding design and layout of each concession location (i.e., color and material
boards, lighting considerations, signage, etc.); and
 The ability to deliver a high level of service to the customer must be
demonstrated.
K. Management and Operations Plan
Proponents will be required to provide details regarding the following:
Organization Structure
Describe the organization structure, including management and staff positions,
which will be used to manage and operate the concession(s). Include any charts,
diagrams, or descriptive materials as appropriate.
Staffing
Detail the number and type of staff per shift by location indicating if there are any
variations during different periods of the day. Provide a description of any training
to be undertaken for managers and/or staff (including customer service training).
Revenue Control and Reporting
Provide a detailed description of the electronic Point of Sale (POS) revenue control
system to be utilized. This type of system is mandatory. Provide data on audit
trails and revenue reporting capabilities. Details should be provided regarding the
level of compatibility between the proposed system and other standard financial
and billing systems on the market. The POS system to be utilized will need to be
capable of supplying data to the Authority’s financial and billing systems via an
electronic interface that the Authority plans to set up to access this type of
revenue control information.
While this system is mandatory, it is not the
responsibility of the BAA to provide the said POS system or to incur any financial
liability.
Inventory Management and Control
Detail the approaches, controls, and systems to be used to manage inventory in
terms of price and quantity, including details of anticipated inventory turnover and
restocking procedures to ensure that all food and beverage products listed on the
menus are always available to the customers.
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Operating Procedures
Present a comprehensive listing of all intended operating strategies for each service
outlet, covering at a minimum, the following items:
 hours of operation;
 employee dress code;
 customer service initiatives;
 resolution of customer complaints;
 maintenance and cleaning;
 security; and
 purchasing, receiving and storage of merchandise.
L.
Inventory and Pricing
The Authority has adopted a “fair pricing” policy, meaning that on-airport food and
beverage prices for goods of similar quality and quantity must be within 10% of
prices at comparable outlets in Birmingham.
Proponents must provide for each service outlet, details of the proposed product
lines for the outlet, including quantity and price schedules for each line to be sold.
Prices must be in compliance with the policy outlined herein.
In order to establish a reasonable benchmark for price comparisons, the
Proponent must include for each concession, a preliminary listing of three
outlets to be used for comparison purposes. If the Proponent has other local,
non-airport operations, these outlets must be included in the list.
The Airport Authority intends to eventually put in place a Product Price Monitoring
System in effect for each retail and food & beverage outlet. Prices will be
monitored by the Authority. If product prices are found to be in excess of the
acceptable range, the concessionaire will be responsible for the costs of the
monitoring, and may be subject to other sanctions.
Innovative customer incentives by concessionaires are encouraged.
M. Marketing Plan
The ability of the Proponent to effectively market the Submitted Concessions is
considered to be of prime importance. The marketing elements of each proponent’s
Proposal will be evaluated in detail, taking into account the Proponent’s corporate
marketing and customer service philosophy and policy.
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Proponents will provide:
 Strategies for product presentation and appearance;
 If the Proponent is proposing a franchise, confirmation from the franchisor that
the franchise would be granted if the Proponent is successful;
 On- and off-airport advertising and promotional items to be implemented. A
detailed listing in a calendar format should be provided, relating it to an overall
advertising and promotional budget;
 Description of how the Proponent intends to satisfy the needs of the physicallychallenged (height of counter, width of circulation space, accessibility of
condiments, etc.);
 Description of how the Proponent proposes to provide guarantees (financial or
otherwise) to the Authority of a minimum level of customer service;
 Description of any customer surveys, mystery shopping services, or other
market research methods that will be used to enhance market knowledge; and
 Any other relevant data.
N. Projected Annual Income and Cash Flow
The Proponent must submit financial projections clearly showing the anticipated
gross sales and expenses, as described in the Appendix D model.
These
projections should be in sufficient detail to show that the projected revenue stream
can support the minimum annual guaranteed rents and the percentage rents
proposed for each service outlet.
Proponents must provide pro forma income statements that include the Proponent’s
sources of income and projected gross receipts and expenses. A separate pro
forma shall be prepared for each of the ten years of operation. The pro forma shall
be evaluated by the Authority in terms of reasonableness; demonstrated
understanding of the proposed lease agreement; viability of the proposed operation
and financial offer; and ability to fund the operation and proposed improvements.
Any assumptions made on the part of the Proponent in order to provide the Pro
forma must be indicated (such as enplanement numbers, cost of capital, etc.).
O. Proposal Security Deposit
The Proponent shall submit with its Proposal(s), a Proposal Security Deposit in the
amount of two months gross revenue as per the forecasts submitted by the
Proponent, which shall be in one of the following forms:
i. A certified check payable to the Authority;
and/or
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22
ii. An irrevocable letter of credit, being an undertaking by a financial institution to
pay on demand the amount of the Proposal Security Deposit to the Authority on
presentation of a simple written demand for payment (hereinafter referred to as
“Irrevocable Letter of Credit Form”). The Proposal Security Deposit in the
form of an irrevocable letter of credit shall adhere to the format and the wording
set out in the Irrevocable Letter of Credit Form attached to this document as
Appendix E.
Certified checks and letters of credit will be accepted by the Authority without
confirmation.
Any fees associated with the issuance of the irrevocable letter of credit or fees
associated with the payment of the Proposal Security Deposit to the Authority will
be born by the Proponent.
Proponents shall not submit funds in lieu of the Proposal Security Deposit which
are, or may be, subject to any conditions or to existing encumbrances, charges or
general security agreements.
Failure to provide the required amount under the Proposal Security Deposit will
result in the rejection of the Proposal.
Without prejudice to any other recourse that the Authority may have at law or
otherwise, Proponents are hereby advised that should they decide to withdraw their
Proposal or, as the case may be, should they fail, once chosen as a successful
Proponent, to execute the Lease Agreement within the prescribed period, then, in
either case and notwithstanding the reason of such withdrawal or failure, the
Proposal Security Deposit may be forfeited and the Authority may retain it as
damages, without deduction or interest.
Within a reasonable period following the selection by the Authority of the successful
Proponent(s), the Proposal Security Deposits will be remitted to unsuccessful
Proponents without interest.
The Proposal Security Deposit of the Successful Proponent(s) will be remitted to the
latter without interest upon receipt of the required Concession Security Deposit as
stated in the Draft Sample Lease Agreement.
P.
LEED
The Birmingham Shuttlesworth International Airport is committed to conserving
natural resources, reducing pollution and ensuring a healthy and sustainable future
for the residents of and the visitors to the Birmingham region and users of the
Airport. In this effort, the Airport has been designed to achieve LEED Certification.
Potential tenants should consider these principles as spaces are developed.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
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23
Q. Airport Concession Disadvataged
Enterprise (ACDBE) Policy
Business
The Birmingham Airport Authority (Authority) has been a recipient of grants for
airport development authorized under Title 49 of the United States Code.
Accordingly, the Authority, as required by federal law, has established an Airport
Concession Disadvantaged Business Enterprise (ACDBE) program pursuant to 49
CFR Parts 23 and 26. The lease which may be awarded pursuant to this Request
for Proposals will be considered a “concession contract,” and the successful
Proposer, if any, will be considered a “concessionaire” under Part 23 of such
regulations.
POLICY - The policy of the Authority is to ensure nondiscrimination in the award
and administration of concession contracts; to create a level playing field on which
ACDBEs can compete fairly for concession contracts; to ensure that the ACDBE
Program is narrowly tailored by utilizing race neutral/race conscious means; to
ensure that only firms that fully meet the 49 CFR Part 23 eligibility standards are
permitted to participate as ACDBEs; to help remove barriers to the participation of
ACDBEs in concession contracts; and to assist in the development of firms that can
compete successfully in the marketplace outside the ACDBE Program.
CONTRACT ASSURANCES – Pursuant to 49 CFR 23.9, all concession contracts must
include the following assurances:
“This agreement is subject to the requirements of the U.S. Department of
Transportation’s regulations, 49 CFR Part 23. The concessionaire 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 concessionaire or contractor agrees to include the above statements in any
subsequent concession agreement or contract covered by 49 CFR Part 23, that it
enters and cause those businesses to similarly include the statements in further
agreements.”
ACDBE REQUIRED CERTIFICATION – All ACDBEs MUST BE PROPERLY
CERTIFIED PRIOR TO THE PROPOSAL OR BID OPENING TO BE COUNTED
TOWARDS THE ESTABLISHED GOAL. Only those firms certified by the
Birmingham Airport Authority shall be counted toward the
established goal. It is the responsibility of the proposer to confirm the
certification status of any proposed ACDBE. It takes up to ninety (90) days to
become certified as an ACDBE with the Airport Authority. An ACDBE applicant
to the Authority’s program, domiciled in another state, must be ACDBE
certified in and by its home state before it can be considered for ACDBE
certification with the Authority. All ACDBE firms certified with the Authority
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24
are listed in a DBE/ACDBE Directory. The Directory is found at
http:www.flybirmigham.com. Proposers should refer to the directory of
ACDBE companies certified by the Birmingham Airport Authority to identify
potential ACDBEs for the work. Additional assistance may be obtained by
calling the Birmingham Airport Authority’s DBE/ACDBE Program Manager at
205-599-0543.
ACDBE PARTICIPATION GOAL – The Birmingham Airport Authority goal
established for participation in this contract by Airport Concessions
Disadvantaged Business Enterprises (ACDBEs) is thirty percent (30%).
ACDBE Participation will be measured in accordance with 49 CFR sections
23.25 and 23.55, based on gross receipts of ACDBEs, and expenditures for
materials and supplies purchased from ACDBEs. Prime proposers who are
ACDBEs are presumed to have achieved the established level of participation.
The lease which is the subject of this RFP will be awarded only to a Proposer
which documents that it has obtained enough ACDBE participation to meet
the goal, or documents that it has made adequate good faith efforts to meet
the goal, even though it did not succeed in obtaining enough ACDBE
participation to do so.
GOOD FAITH EFFORTS – It is incumbent on the Proposer to submit appropriate
documentation to demonstrate that a “good faith effort” was made to reach out to
ACDBEs. Examples of items the Authority may consider in making a determination
as to whether a Proposer made “good faith efforts” (as defined in 49 CFR Part 23.3)
to meet the goal are as follows:
a)
Whether the Proposer attended any presolicitation or prebid meetings that
were scheduled by the Authority to inform ACDBE(s) of concession
opportunities.
b)
Whether the Proposer advertised in general circulation, trade association,
and minority-women focused media concerning the concession opportunities.
c)
Whether the Proposer followed up initial solicitations of interest by contacting
ACDBE(s) to determine with certainty whether the ACDBE(s) were interested.
d)
Whether the Proposer selected small and/or ACDBE firms for subdivision into
high traffic concession areas; and whether Proposer is willing to assist with
build out cost.
e)
Whether the Proposer provided interested ACDBE(s) with adequate
information about the plans, specifications, and requirements of the
concession.
f)
Whether the Proposer negotiated in good faith with interested ACDBE firms,
not rejecting ACDBE(s) as unqualified without sound reasons based on a
thorough investigation of their capabilities.
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25
g)
Whether the Proposer made efforts to assist interested ACDBE firms in
obtaining bonding, lines of credit, or insurance required by the recipient or
Concessionaire.
h)
Whether the Proposer effectively used the services of available minority
community organizations, minority vendor groups, local and state Minority
Business Assistance Offices, and other organizations that provide assistance
in the recruitment and participation of ACDBE firms.
R. Other Information
The Proponent may append any other information pertinent to their proposal. Such
information may not necessarily be reviewed by the Proposal Evaluation
Committee.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
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Request for Proposals
Appendix A
Planned Food & Beverage Airport Floor Plans
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
Food & Beverage
Request for Proposals
A-1
Overall Reference Plan 2nd Floor/Gate Level
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
Food & Beverage
Request for Proposals
A-2
Overall Reference Plan Ground Level
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Appendix B
Business Information Template
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
B-1
BUSINESS INFORMATION
(Attach additional pages as necessary)
Name of Proponent
Date Submitted
Head Office Address
Local Office Address
Duly Authorized Official Representative for the purposes hereof, telephone and fax
numbers, and email address
Description of Proponent
a)
Incorporated Company (name)
Date and Place of Incorporation
Names and addresses of principal officers:
Name
Addresses
President
Vice President
Secretary
Treasurer
Others
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B-2
Names of principal shareholders:
b)
Partnership
(Name)
Date and Place Established
General or Limited Partnership
Managing Partners and Addresses:
c)
Joint Venture
Date and Place Established
Name of Principal Firms and Share of Venture
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B-3
d)
Sole Proprietorship
Date and Place Established
Name and Address of Sole Proprietor
If the proponent is a subsidiary of, affiliated with or associated with other
organizations, please provide details:
CERTIFICATE
I hereby certify that the information contained herein represents full, plain and true
disclosure of all facts that could be reasonably expected to have an impact on the
evaluation of the proposal.
Witness:
Signature:
(Duly Authorized Official)
Name (printed)
Title:
Date:
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Appendix C
Proposal Form
(One (1) form to be completed for each of the Submitted Concessions)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
C-1
Proposal Form
TO:
Birmingham-Shuttlesworth International Airport
FROM:
(Full name of Proponent)
(Full address of Proponent)
(Telephone, Fax numbers and Email Address)
(Full name and title of contact person)
(Hereinafter called “the Proponent”)
THE PROPONENT HEREBY OFFERS to enter into a Lease Agreement with
Birmingham-Shuttlesworth International Airport to operate the
___________________________________________________
(Identify Food & Beverage Concession)
including unit numbers
________________________________________
(Please refer to Exhibit I-7 herein)
in the Birmingham-Shuttlesworth International Airport’s Terminal Building, for an
initial Term of seven years (plus a three year term extension option), for an amount
equivalent to the greater of the Minimum Rent as hereinafter described in a) or the
Percentage Rent as hereinafter described in b), and the Other Rent (optional) as
herein described in c):
a)
Year
Year
Year
Year
Year
Year
Year
Minimum Rent payable during the seven-year term of the Lease (current US
$)
1,
2,
3,
4,
5,
6,
7,
the
the
the
the
the
the
the
amount
amount
amount
amount
amount
amount
amount
of
of
of
of
of
of
of
________________$
________________$
________________$
________________$
________________$
________________$
________________$
Note: For evaluation purposes, Minimum Rents will be discounted to Net
Present Value at a rate of 8%.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
C-2
b)
Percentage Rent
A Percentage Rent equal to ____________________ percent (_____%) of annual
Gross Revenues generated by the operation of the concession, as described and
payable in the manner set forth in the Draft Sample Lease Agreement attached
hereto and initialed, subject however to reasonable amendments to be agreed upon
between the parties. The Proponent may wish to propose a Percentage Rent that
increases a certain number of times or from year to year during the term of the
Lease. In such cases, details shall be provided here:
c)
Other Rent (optional)
The Proponent may offer to pay to the Authority some other formulas of rent as
long as these types of rents are to the financial advantage of the Authority and are
paid over and above the Percentage Rent and/or Minimum Rent.
If applicable, please describe Other Rent hereunder:
1. Attached Documents
The following documents (as fully described in Part III above) are attached hereto
and form an integral part of this Proposal:
a. Executive Summary (Section III-A)
b. General Business Information (Section III-C)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
C-3
c. General Financial Information (Section III-D)
d. Evidence of Insurability (Section III-E)
e. Experience Statement (Section III-F)
f. Guarantees and Rents as defined herein (Section III-G)
g. Exceptions to the Lease Agreement, as the case may be (Section III-H)
h. Capital Investment (Section III-I)
i.
Concepts and Facility Plans specific to this Submitted Concession (Section III-J)
j. Management and Operations Plan (Section III-K)
k. Inventory and Pricing specific (Section III-L)
l.
Marketing Plan (Section III-M)
m. Proposal Security Deposit (Section III-O)
n. Projected annual income and cash flow (Section III-N)
o. Other Information (optional) (Section III-R)
2. Acceptance Period
This Proposal shall remain open for acceptance by the Authority for a period of one
hundred and eighty (180) days from the date of submission (hereinafter referred to
as the “Acceptance Period”), unless amended as provided for herein.
3. Extension of acceptance period
In the event the Authority deems it necessary to extend the one hundred and
eighty (180) day period for acceptance of Proposals, the Authority shall, prior to the
expiration of such period, notify the Proponent by written notice to that effect.
4.
Rejection of Proposal
Where the Proposal of the Proponent is unsuccessful or otherwise rejected in total
by the Authority, the Request for Proposals security deposit shall be thereafter
returned within a reasonable period of time to the unsuccessful Proponent without
payment of interest.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
C-4
5.
Withdrawal of Proposal
If the Proponent withdraws his Proposal contrary to the terms herein provided, the
Request for Proposals deposit may be forfeited as minimum liquidated damages
stipulated in advance, the whole without prejudice to such further rights and
recourse as may belong to the Authority in the circumstances.
6.
Deposits
The Request for Proposals Security Deposit will be returned to unsuccessful
proponents within a reasonable time following the closing date of the Proposal
Selection Process. Request for Proposals Security Deposits will be returned to
successful Proponents upon remittance to the Authority of the Concession Security
Deposit, pursuant to the conditions expressed in the Draft Sample Lease
Agreement.
7.
Notices
1)
Any notice required to be given to the Proponent shall be sufficiently
given:
a)
if personally served:
i)
ii)
b)
2)
on the Proponent; or
if the Proponent is a corporation, then at its Registered
Office or principal place of business
if forwarded by registered mail, addressed to:
Any notice required to be given to the Authority shall be sufficiently
given if personally served on or forwarded by registered mail,
addressed to:
Mrs. Mary Mindingall
Senior Vice President
Finance and Administration
Birmingham-Shuttlesworth International Airport
950 22nd Street North, Suite 750
Birmingham, Alabama 35203
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
C-5
3)
Any and every notice mentioned in this section, if forwarded by
registered mail, whenever mailed shall be deemed to be given on the
date of which the same is, in fact, delivered, or on the fifth (5th)
business day following the day on which it is mailed, whichever is the
earlier.
If our Proposal is accepted, we hereby undertake to execute a Lease Agreement in
a form similar to that of the Draft Sample Lease Agreement which will reflect
reasonable amendments agreed upon between the parties, the whole, within fortyfive (45) days following the receipt of the Authority’s Acceptance Letter.
Notwithstanding anything contained in the Request for Proposals or any statement
made at any briefing, we hereby acknowledge that the Authority shall have no
obligation to accept the highest financial offer or any other Proposal.
Date: ___________________________
Submitted by:
Name of Proponent
Per:
(duly authorized officer)
Title:
(Print name of witness)
(Print name of witness)
(Signature of 1st witness)
(Signature of 2nd witness)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Appendix D
Pro Forma Forecast Format
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
D-1
Appendix D
Pro Forma Forecast Format
Year 1
Year 2
Year 3
Year 4
Year 5
Year 6
Year 7
Year 8
Gross Revenue
Cost of Goods Sold
Net Revenue
Expenses
Wages/Salaries
Fringe Benefits
Utilities
Royalties/Franchise
Fees
Rent to Authority
General
Administration
Insurance
Other
(please
specify)
Subtotal
Operating Profit
Debt Service
Profit Before Tax
Net Profit
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Year 9
Year 10
Total
Appendix E
Irrevocable Letter of Credit Format
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
E-1
Appendix E
Irrevocable Letter of Credit Form
To: Birmingham International Airport Authority
NO.
______
Pursuant to the request of (name of Proponent)
Hereby called (“The Customer”), we the undersigned (name and address of Bank)
hereby establish an irrevocable and unconditional Letter of Credit in your favour in
the total amount of (amount in words)
($
).
We authorize you to draw on this branch under this Letter of Credit a maximum
amount of (amount in words) ( $
), which demand we shall honor without
inquiring whether you have the right as between you and the Customer to make
such demand.
This Letter of Credit expires ________________, 2014.
No payment will be made after expiration of this Letter of Credit.
A written demand for payment must be presented at this branch of
(Name of Bank)
(Address of Bank) and make
reference to our irrevocable Letter of Credit No. ________.
Signed in _________________ on the _______ day of ___________________
2012.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Appendix F
Draft Sample Lease Agreement
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
LEASE NO:
BETWEEN
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT
AND
Description: Food & Beverage Concession
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-1
MASTER LEASE AND CONCESSION AGREEMENT
BY AND BETWEEN
THE BIRMINGHAM AIRPORT AUTHORITY
AND
__________________________________
DATED AS OF ____________, 201__
Reference:
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-2
MASTER LEASE AND CONCESSION AGREEMENT
PARTIES AND ADDRESSES:
BIRMINGHAM AIRPORT AUTHORITY
Attn: Mary Mindingall
5900 Messer Airport Highway
Birmingham, AL 35212
Telephone: 205-599-0507
Fax: 205-599-0707
AUTHORITY:
Mailed Payments: Birmingham Airport Authority
Accounts Receivable
5900 Messer Airport Highway
Birmingham, AL 35212
Telephone: 205-599-0563 or 205-599-0804
Fax: 205-595-7149
Monthly Reports:
Birmingham Airport Authority
Attn: Accounts Receivable
5900 Messer Airport Highway
Birmingham, AL 35212
Telephone: 205-599-0563 or 205-599-0804
Fax: 205-595-7149
Email: [email protected] or
[email protected]
Concessionaire:
Telephone:
Fax:
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-3
TABLE OF CONTENTS (Cont’d)
Page
Article I DEFINITIONS ............................................................................
Section 1.1
Definitions. ................................................................
F-9
F-9
Article II INCORPORATION OF PROPOSAL AND RFP ....................................
Section 2.1
Incorporation of Proposal and RFP. ................................
F-22
F-22
Article III DEMISE
Section 3.1
Section 3.2
Section 3.3
Section 3.4
Section 3.5
Section 3.6
Section 3.7
Section 3.8
OF PREMISES..............................................................
Demise of Premises.....................................................
Concession Locations...................................................
Concession Location Approximate Square Footage. ..........
Options to Extend Operational Phase. ............................
Changes to Premises. ..................................................
Deletion; Reduction.....................................................
Support Space............................................................
Concession Numbering. ...............................................
F-22
F-22
F-23
F-23
F-23
F-23
F-24
F-25
F-25
CONCESSIONAIRE’S OBLIGATIONS ............................................
4.1
General Operational Standards. ....................................
4.2
Concession Management..............................................
4.3
Concessionaire Staff....................................................
4.4
Plans and Programs. ...................................................
4.5
Hours of Operation......................................................
4.6
Annual Reporting. .......................................................
4.7
Signage Policy. ...........................................................
4.8
Marketing and Promotions............................................
4.9
Rules and Regulations. ................................................
4.10
Concession Operator Performance Reviews; Operational
Audits. ......................................................................
4.11
Transition. .................................................................
4.12
Airport Security. .........................................................
4.13
Identification Badges and Security Clearances.................
4.14
Employee Parking. ......................................................
4.15
Knowledge of the Airport. ............................................
F-25
F-25
F-25
F-30
F-31
F-33
F-34
F-35
F-35
F-36
Article IV
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
F-37
F-37
F-37
F-37
F-40
F-40
Article V FINANCIAL TERMS.....................................................................
Section 5.1
Periodic Rent..............................................................
Section 5.2
Payments to Authority. ................................................
Section 5.3
Utilities; Common Area Maintenance Charges; Taxes and
Other Charges. ...........................................................
Section 5.4
Late Payments. ..........................................................
F-41
F-41
F-43
Article VI CONCESSION OPERATIONS .......................................................
Section 6.1
Permitted Uses. ..........................................................
F-44
F-44
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-43
F-44
F-4
TABLE OF CONTENTS (Cont'd)
Page
Section 6.2
Prohibited Concession Activities. ...................................
F-45
Article VII DISADVANTAGED BUSINESS ENTERPRISE PARTICIPATION ...........
Section 7.1
Encouragement of DBE Participation. .............................
Section 7.2
DBE Participation Goals. ..............................................
Section 7.3
Failure to Meet DBE Goal. ............................................
Section 7.4
Discrimination Prohibited. ............................................
F-46
F-46
F-46
F-47
F-47
Article VIII PRICING...............................................................................
Section 8.1
Reasonable Pricing. .....................................................
Section 8.2
Pricing Adjustments. ...................................................
Section 8.3
Discounts for Airport Employees....................................
F-47
F-47
F-48
F-49
Article IX SUBLEASES; AGREEMENTS WITH CONCESSION OPERATORS .........
Section 9.1
Permitted Subleases....................................................
Section 9.2
Agreements with Concession Operators..........................
F-49
F-49
F-49
Article X CONSTRUCTION; CAPITAL IMPROVEMENTS ..................................
Section 10.1
Permitting; Planning Requirements................................
Section 10.2
Initial Capital Improvements. .......................................
Section 10.3
Authority Responsibility. ..............................................
Section 10.4
Certification of Construction Expenditures. .....................
Section 10.5
Financing Capital Improvements/Liens. ..........................
Section 10.6
Ventilation for Concession Locations Allowing Smoking.....
Section 10.7
Construction Fines. .....................................................
Section 10.8
Midterm Renovations...................................................
Section 10.9
Surrender of Premises. ................................................
F-50
F-50
F-50
F-50
F-51
F-51
F-52
F-52
F-52
F-52
Article XI
Section
Section
Section
Section
PREMISES MAINTENANCE; RESERVATION OF RIGHTS ...................
11.1
Premises Maintenance. ................................................
11.2
Maintenance and Repair...............................................
11.3
Notice of Injury or Damage. .........................................
11.4
Reservation of Rights by Authority. ...............................
F-53
F-53
F-53
F-54
F-54
Article XII SMOKING REGULATIONS .........................................................
Section 12.1
Smoking Regulations. ..................................................
F-55
F-55
Article XIII BOOKS, RECORDS, RECORDKEEPING AND REPORTS ..................
Section 13.1
General Requirements. ................................................
Section 13.2
Premises Transactions. ................................................
Section 13.3
Minimum Features of Point of Sale Terminals. .................
Section 13.4
Statistics Report. ........................................................
Section 13.5
Sales Reports. ............................................................
F-55
F-55
F-56
F-57
F-57
F-58
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-5
TABLE OF CONTENTS (Cont'd)
Page
Article XIV TAXES AND ASSESSMENTS .....................................................
Section 14.1
Payment of Taxes and Assessments. .............................
F-58
F-58
Article XV INSURANCE............................................................................
Section 15.1
CGL Coverage. ...........................................................
Section 15.2
PC Coverage. .............................................................
Section 15.3
Auto Coverage. ..........................................................
Section 15.4
WC Coverage. ............................................................
Section 15.5
General Requirements. ................................................
Section 15.6
No Limitation on Liability..............................................
F-58
F-58
F-59
F-59
F-60
F-60
F-61
Article XVI INDEMNIFICATION .................................................................
Section 16.1
Negligent Acts or Omissions. ........................................
Section 16.2
Intentional Acts. .........................................................
Section 16.3
Placement or Use of Hazardous Materials. ......................
Section 16.4
Negligent Acts or Omissions as to Hazardous Materials.....
Section 16.5
Intentional Acts as to Hazardous Materials......................
Section 16.6
Operation of Aircraft and Vehicles. ................................
Section 16.7
Representations and Warranties; Violations of Agreement.
Section 16.8
Failure to Comply with Applicable Laws. .........................
Section 16.9
Survival of Article XVI..................................................
F-61
F-61
F-62
F-62
F-62
F-62
F-63
F-63
F-63
F-64
Article XVII RELATIONSHIP OF AUTHORITY AND CONCESSIONAIRE ..............
Section 17.1
Relationship of Authority and Concessionaire. .................
F-64
F-64
Article XVIII CONDUCT OF BUSINESS .......................................................
Section 18.1
Conduct of Business. ...................................................
F-64
F-64
Article XIX FINANCIAL GUARANTEE ..........................................................
Section 19.1
Letter of Credit. ..........................................................
F-64
F-64
Article XX EVENTS
Section 20.1
Section 20.2
Section 20.3
Section 20.4
OF DEFAULT; REMEDIES ..............................................
Events of Default. .......................................................
Remedies. .................................................................
No Waiver..................................................................
Termination by Concessionaire. ....................................
F-65
F-65
F-67
F-69
F-69
Article XXI DAMAGE OR DESTRUCTION OF PREMISES .................................
Section 21.1
Partial Damage...........................................................
Section 21.2
Extensive Damage. .....................................................
Section 21.3
Complete Destruction. .................................................
F-69
F-69
F-70
F-71
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-6
TABLE OF CONTENTS (Cont'd)
Page
Article XXII CONDEMNATION; EMINENT DOMAIN .......................................
Section 22.1
Total Taking. ..............................................................
Section 22.2
Partial Taking. ............................................................
F-72
F-72
F-72
Article XXIII OPERATING RIGHTS.............................................................
Section 23.1
Operating Rights.........................................................
F-72
F-72
Article XXIV FINES ................................................................................
Section 24.1
Fines.........................................................................
F-73
F-73
Article XXV ENVIRONMENTAL PROTECTION ...............................................
Section 25.1
Compliance with Environmental Laws. ...........................
F-73
F-73
Article XXVI OPERATIONAL AUDITS ..........................................................
Section 26.1
Operating Standards. ..................................................
Section 26.2
Performance Audits. ....................................................
F-74
F-74
F-74
Article XXVII LEASEHOLD MORTGAGES .....................................................
Section 27.1
Leasehold Mortgages Not Permitted...............................
F-74
F-74
Article XXVIII GENERAL PROVISIONS .......................................................
Section 28.1
Attempts or Payments to Influence................................
Section 28.2
Drug-Free Workplace...................................................
Section 28.3
Affirmative Action. ......................................................
Section 28.4
No Discrimination. ......................................................
Section 28.5
No Exclusive Right. .....................................................
Section 28.6
Subordination to Other Agreements...............................
Section 28.7
Subordination to Authority Encumbrances. .....................
Section 28.8
No Waiver..................................................................
Section 28.9
Notices, Approvals, Consents, etc..................................
Section 28.10
Consents, Approvals, etc., of Authority. .........................
Section 28.11
Headings. ..................................................................
Section 28.12
Severability................................................................
Section 28.13
Agents for Service of Process........................................
Section 28.14
Waiver of Anticipated Profits.........................................
Section 28.15
Right of Authority to Develop Airport. ............................
Section 28.16
Incorporation of Legally Required Provisions. ..................
Section 28.17
Limitation of Authority’s Liability. ..................................
Section 28.18
Successors and Assigns. ..............................................
Section 28.19
Required Modifications.................................................
Section 28.20
Time is of the Essence. ................................................
Section 28.21
Construction of Agreement...........................................
Section 28.22
Understanding of Agreement. .......................................
F-75
F-75
F-75
F-76
F-76
F-78
F-78
F-78
F-79
F-79
F-80
F-80
F-80
F-80
F-81
F-81
F-81
F-81
F-81
F-82
F-82
F-82
F-82
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-7
TABLE OF CONTENTS (Cont'd)
Page
Section
Section
Section
Section
Section
28.23
28.24
28.25
28.26
28.27
Legal Interest and Other Charges..................................
Holding Over. .............................................................
Governing Law. ..........................................................
Avigation Easement. ...................................................
Attorneys’ Fees...........................................................
F-82
F-83
F-83
F-83
F-84
EXHIBITS
Exhibit A
Exhibit B
Exhibit C
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
D
E
F
G
H
I
J
K
Terminal ............................................................................... F-86
Proposal and RFP ................................................................... F-87
Concession Locations and Food and Beverage Common Seating
Areas ................................................................................... F-88
Support Space ....................................................................... F-89
Concession Location Development Checklist Form....................... F-90
Concession Location Pro-Forma Operating Statement .................. F-91
Form of Sublease ................................................................... F-92
Concession Location Sales Report............................................. F-93
Form of Letter of Credit .......................................................... F-94
Fines .................................................................................... F-99
Guaranty .............................................................................. F-100
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-8
MASTER LEASE
AND CONCESSION AGREEMENT
THIS MASTER LEASE AND CONCESSION AGREEMENT (the “Agreement”) is
made and entered into as of this ___ day of _________________, 201__ (the
“Effective Date”), by and between BIRMINGHAM AIRPORT AUTHORITY, an public
corporation existing under the laws of the State of Alabama (the “Authority”), and
_______________________________________, a ____________ existing under
the laws of the State of ____________ (the “Concessionaire”).
WITNESSETH:
WHEREAS, Authority is the owner and operator of the Birmingham
Shuttlesworth International Airport located in Birmingham, Jefferson County,
Alabama (the “Airport”), and, in connection with its operation of the Airport,
Authority leases space within the Terminal (as defined in Section 1.1) and grants
concession rights for the operation of food and beverage businesses within the
Terminal; and
WHEREAS, Concessionaire is engaged in the food and beverage concession
business and desires to lease space in the Terminal for the operation of food and
beverage businesses by Concessionaire and/or its Concession Operators (as defined
in Section 1.1) in accordance with the terms and provisions of this Agreement; and
WHEREAS, Concessionaire submitted the Proposal (as defined in Section 1.1)
in response to Authority’s RFP (as defined in Section 1.1) for the rights to be
granted by Authority pursuant to the terms and provisions of this Agreement within
the Premises (as defined in Section 1.1); and
WHEREAS, Authority has agreed to accept the Proposal and to rent and lease
to Concessionaire, and Concessionaire has agreed to take and rent from Authority,
the Premises for the purpose of operating food and beverage concession businesses
at designated Concession Locations (as defined in Section 1.1) in the Terminal,
subject to the terms and provisions of this Agreement;
NOW, THEREFORE, for and in consideration of the covenants of
Concessionaire contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Authority and
Concessionaire hereby agree as follows:
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-9
ARTICLE I
DEFINITIONS
Section 1.1
Definitions.
In addition to terms defined elsewhere in this Agreement, the following
words and phrases are defined as follows (such definitions to be applicable equally
to singular and plural nouns and verbs of any tense):
“Addendum” means any written or graphic documentation or instrument
issued by Authority prior to the opening of the Proposal that clarified, corrected or
changed the RFP and related materials.
“Additional Rent” means all Taxes, Common Area Maintenance Charges,
costs and expenses that Concessionaire assumes or is obligated to pay under any
provision of this Agreement in addition to Periodic Rent.
“Affiliate” means, with respect to any Person; (i) any Person who controls,
is controlled by or is under common control with such Person; (ii) any Person who is
a manager, director or officer of, partner in, trustee of, or blood or legal relative
living in the same household, guardian or representative of, the specified Person, or
any Person who acts or serves in a similar capacity with respect to the specified
Person; (iii) any Person of which or whom the specified Person is a manager,
director or officer, partner, trustee or blood or legal relative living in the same
household, guardian or representative, or with respect to which or whom the
specified Person acts or serves in a similar capacity; (iv) any Person, who, directly
or indirectly, is the legal or beneficial owner of or controls ten percent (10%) or
more of the equity ownership interests of the specified Person; and (v) any Person
who is an Affiliate as defined in the preceding clauses (i), (ii), (iii) or (iv) of an
Affiliate of the specified Person.
“Air Transportation Company” means a company engaged in the business
of scheduled or non-scheduled commercial transportation by air of persons at the
Airport.
“Aircraft” has the meaning assigned thereto in Section 28.26 hereof.
“Airport Security Plan” means a program developed by Authority for the
maintenance of the safety and security of the Airport and Persons using the
Terminal or any other portion of the Airport premises, as it may be amended,
modified or revised by Authority from time to time. The Airport Security Plan is a
part of the Rules and Regulations.
“Applicable Laws” means all present and future applicable laws,
ordinances, orders, directives, rules, codes and regulations of all Governmental
Authorities and all present and future grant assurances provided by Authority to
any Governmental Authority in connection with Authority’s ownership or operation
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-10
of the Airport, as the same may be amended, modified or updated from time to
time, applicable decisional law (including, without limitation, judicial or
administrative interpretations, orders and judgments) and the Rules and
Regulations.
“Architect/Engineer” means the licensed firm or firms engaged by
Concessionaire or other Concession Operator from time to time, and approved by
Authority, to design and prepare the plans and specifications for improvements to
the Premises.
“Assistant Concession Manager” means the natural person employed by
Concessionaire to assist the Concession Manager with managing and overseeing the
day-to-day management of Concession Operations, as further described in Section
4.3 hereof.
“Auto Coverage” has the meaning assigned thereto in Section 15.3 hereof.
“Base Building Work” means the sub-floor, structural elements, demising
walls at the exterior of a Concession Location, utilities infrastructure and other base
building improvements, structures and fixtures that Authority installs within the
Concession Locations. Base Building Work includes preparation of a Concession
Location in Shell Condition.
“CGL Coverage” has the meaning assigned thereto in Section 15.1 hereof.
“Capital Improvements” means the improvements, structures and fixtures
installed by Concessionaire and/or any Concession Operator in the Premises,
including, without limitation, finish-out work on floors, ceilings, demising walls and
store facades; storefront signage; panel boxes and hook-ups to utilities; wires and
conduits infrastructure; decorations; furniture; equipment; shelves; counters; cash
wraps; lighting; and interior design and construction work necessary in general to
accommodate the Concession Operations.
“Catering Services” means sales of food and beverage items by
Concessionaire or a Concession Operator delivered in areas other than a Concession
Location.
“Commencement Date” means the earlier of (i) the first day of the month
in which the date that is ninety (90) days following the date on which the Turnover
Dates for all Concession Locations have occurred or (ii) the date Tenant opens for
business.
“Common Area” means each area within the Terminal that is accessible to
the public and not subject to exclusive occupancy by a tenant of the Terminal under
a lease with Authority, including, without limitation, any common corridor, hall,
passageway, walkway, entrance, exit, aisle, stairway, elevator, escalator, seating or
waiting area, restroom and Food and Beverage Common Seating Areas.
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“Common Area Maintenance” means the cleaning, repair, refurbishment,
equipping, furnishing and replacement of, and other services performed by
Authority with respect to the general maintenance and upkeep of, the Common
Areas.
“Common Area Maintenance Charges” means amounts charged to and
collected from Concessionaire that are in addition to Periodic Rent for the purpose
of reimbursing Authority for Authority’s expenses incurred to provide Common Area
Maintenance.
“Concession Location” means each of the concession areas as described
and identified in Exhibit C hereto and located within the Premises. A specific
Concession Location is referenced in this Agreement by the identification number
assigned to such Concession Location in Exhibit C hereto.
“Concession Manager” means the natural person employed by
Concessionaire to manage the day-to-day Concession Operations, as further
described in Section 4.3 hereof.
“Concession Operator” means each of Concessionaire, in its capacity as an
operator of a Concession Location, a Sublessee and any other Person that conducts
Concession Operations pursuant to rights granted in this Agreement.
“Concession Operations” means the operation of one or more food and/or
beverage businesses within the Premises pursuant to rights granted in this
Agreement.
“Concession Program” means the Interim Concession Program and the
Permanent Concession Program, collectively.
“Concessionaire Insurance Requirements” means the requirements for
the maintenance of the Insurance Coverages set forth in Article XV hereof.
“Construction
Schedule”
means
the
timetable
submitted
by
Concessionaire and approved by Authority for the construction and installation of
the Initial Capital Improvements or the Midterm Renovations.
“Construction Costs” means the amounts that Concessionaire and the
Concession Operators shall be required to spend on the construction and installation
of Capital Improvements to the Premises, with the approval of Authority, as
described in Section 10.8 hereof.
“Construction
Representative”
means
a
Person
retained
by
Concessionaire to manage construction and renovation activities within the
Premises by Concessionaire and the Concession Operators.
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“Construction Permit” means an authorizing document permitting certain
construction work to be performed within specified portions of the Premises in
accordance with the terms thereof.
“Day” means a calendar day of twenty-four (24) hours measured from
midnight to the next midnight.
“Depreciation Schedule” means a schedule reflecting the monthly
depreciation of the Eligible Costs for Initial Capital Improvements or Midterm
Renovations made by Concessionaire or a Concession Operator in or to the
Premises, which schedule is subject to approval by Authority and shall reflect
depreciation on a straight-line basis of the property described therein over the
portion of the Term remaining at the time Authority provides such approval. Any
schedule submitted for this purpose shall not be deemed a “Depreciation Schedule”
until Authority has approved it.
“DBE” means a business entity, whether a sole proprietorship, partnership,
corporation or other entity, of which at least fifty-one percent (51%) of the
ownership thereof is owned and controlled by a “socially and economically
disadvantaged individual” as such term is defined in the Airport and Airways
Improvement Act of 1982, as amended, and the regulations promulgated pursuant
thereto in 49 C.F.R. Part 23, Subpart F, as amended. To qualify as a DBE, a
business entity must meet the experience and economic guidelines set forth in 49
C.F.R. Part 23, Subpart F, as amended, and must be certified by Authority as a
DBE.
“EPA” means the United States Environmental Protection Agency, and any
successor agency, office or department thereto.
“Eligible Costs” means the following: (i) Construction Costs; (ii)
architectural and engineering fees, construction management fees and the cost to
obtain applicable permits (which amounts under this item (ii) shall not exceed
fifteen percent (15%) of the contracted Construction Costs, unless otherwise
approved by Authority in writing); and (iii) the cost of permanent fixtures.
Notwithstanding the foregoing, the definition of “Eligible Costs” shall not include:
(a) costs for Base Building Work incurred by Authority; (b) costs in excess of one
hundred twenty-five percent (125%) of the estimated cost of Initial Capital
Improvements or Midterm Renovations provided by Concessionaire to and approved
in writing by Authority at the time preliminary approval is sought unless otherwise
specifically approved by Authority in writing; (a) any overhead, financing costs
(e.g., loan origination fees or interest, points, legal fees or any non-constructionrelated costs) in connection with such Initial Capital Improvements or Midterm
Renovations; or (d) amounts paid to any Affiliate of Concessionaire or a Concession
Operator, unless otherwise specifically approved by Authority in writing. In addition,
a cost or expenditure shall not qualify as an “Eligible Cost” unless Concessionaire
submits to Authority documentary evidence of the payment thereof, as described in
Section 10.4 hereof.
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“Enplaned Passenger” means any passenger, except the flight crew,
boarding an Aircraft at the Airport, even if such passenger previously disembarked
from another Aircraft of the same or a different Air Transportation Company.
“Environmental Laws” means all Applicable Laws now or hereafter in
effect, as the same may be amended from time to time, which govern any
Hazardous Materials or relate to the protection of human health, safety or the
environment, and shall include, without limitation, the Federal Insecticide,
Fungicide, and Rodenticide Act, 7 U.S.C. § 136, et seq.; the Safe Drinking Water
Act, 44 U.S.C. § 300f, et seq.; the Oil Pollution Act of 1990, 33 U.S.C. § 2701, et
seq.; the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, 42 U.S.C. § 9601, et seq.; the Superfund Amendments and
Reauthorization Act of 1986, Pub. Law No. 99499, 100 Stat. 1613; the Toxic
Substances Control Act, 15 U.S.C. § 2601, et seq.; the Clean Air Act, 42 U.S.C. §
7401, et seq.; the Federal Water Pollution Control Act, 33 U.S.C., § 1251, et seq.;
the Hazardous Materials Transportation Act, 49 U.S.C. § 5101, et seq.; and the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq., all as
amended from time to time.
“Event of Default” has the meaning assigned thereto in Section 20.1
hereof.
“Federal Aviation Act” means the Federal Aviation Act of 1958, as
amended.
“FAA” means the United States Federal Aviation Administration, and any
successor agency, office or department thereto.
“First Class Manner” means the manner of operation of business within the
Premises for which the standards for cleanliness and customer service meet those
of upscale malls and similar high quality airport and non-airport food and beverage
facilities.
“Food and Beverage Common Seating Area” means one of the seating
areas adjacent to or in close proximity to food and beverage concession units within
the Terminal that is designated as “Food and Beverage Common Seating Area” in
Exhibit C hereto.
“Force Majeure” means any strike, boycott, labor dispute, embargo,
shortage of material, act of God, act of the public enemy, act of superior
Governmental Authority (other than Authority), weather conditions, riot, rebellion,
sabotage terrorism or any other circumstances for which the affected party is not
responsible or which is not within its control and that prevents the affected party
from performing any obligation hereunder.
“GAAP” means the conventions, rules and procedures that define approved
accounting practices at a particular time issued by the Financial Accounting
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Standards Board for use by accountants in preparing financial statements and
include not only broad guidelines of general application but also detailed practices
and procedures.
“Governmental Authority” means each federal, state and municipal
government, authority and agency and its respective agencies, departments,
authorities and commissions. “Governmental Authority” shall specifically include,
without limitation, Authority, the City of Birmingham, Jefferson County, the State of
Alabama, the United States Department of Transportation, the FAA and the TSA.
“Gross Receipts” means all monies paid or payable, whether in cash, credit
or otherwise, for sales made or services rendered at or from a Concession Location
regardless of when or where the order therefor is received, or outside such
Concession Location if the order is received at the Airport, including, without
limitation:
(a)
Proceeds from the sale of gift and merchandise certificates (but only
when such certificates are related as a sale from the Concession
Location pursuant to the applicable Concession Operator’s record
keeping system);
(b)
Mail order sales arising out of preliminary contacts made at Airport
facilities;
(c)
Catalog sales (catalogs displayed in a Concession Location must
include a tracking number unique to the Concession Location that
allows for an auditable method for tracking such sales);
(d)
Computer/Internet sales for delivery at the Airport or when
merchandise to fill such orders is taken from Airport locations;
Other electronic or telephone orders received or filled by a Concession
Operator at the Airport;
(e)
(f)
Deposits not refunded to purchasers;
(g)
Orders taken within a Concession Location (although such orders may
be filled elsewhere);
(h)
Sales of Catering Services;
(i)
Sales through vending machines or other devices located within the
Concession Locations; and
(j)
All insurance proceeds received due to loss of gross earnings under
any business interruption insurance coverage maintained by a
Concession Operator.
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A “sale” shall be treated as consummated, and a service shall be deemed rendered,
for the purposes of this definition, and the entire amount of the sales price shall be
included in “Gross Receipts” and deemed received, at the time of determination of
the amount due for each transaction, whether for cash, credit or otherwise, and not
at the time of payment. No deduction shall be allowed for uncollected or
uncollectable credit accounts or checks returned for insufficient funds. “Gross
Receipts” shall not include:
A.
Any sums collected for any federal, state, county or municipal sales
taxes, so-called luxury taxes, use taxes, consumer excise taxes, gross
receipts taxes and other similar taxes now or hereafter imposed by law
upon the sale of merchandise or services, but only if separately stated
from the sales price and only to the extent paid by a Concession
Operator to any duly constituted Governmental Authority;
B.
The exchange of merchandise between the stores or warehouses
owned by or affiliated with a Concession Operator, if any, where such
exchanges of goods or merchandise are made solely for the convenient
operation of the business of such Concession Operator and not for the
purpose of consummating a sale which has theretofore been made at,
in, from or upon a Concession Location nor for the purpose of
decreasing payments otherwise due to Authority hereunder which
otherwise would be made at, in, from or upon a Concession Location;
C.
The amount of any cash or credit refund made upon any sale where
the merchandise sold, or some part thereof, is thereafter returned by a
purchaser and accepted by the Concession Operator to which it is
returned;
D.
Sales of fixtures, equipment or other items of property that are not
stock in trade and not sold in the ordinary course of the business of
the selling Concession Operator;
E.
Any receipts of a Concession Operator that arise from its operations
under any other contract with Authority and are subject to a
percentage fee or percentage rent under such other contract;
F.
Shipping and delivery charges if provided at the cost of such shipping
or delivery and such services are merely an accommodation to
customers;
G.
Receipts in the form of refunds from or the value of merchandise,
services, supplies or equipment returned to a vendor, shipper, supplier
or manufacturer, including volume discounts received from a vendor,
supplier or manufacturer or a Concession Operator;
H.
Customary discounts given by a Concession Operator on sales of
merchandise or services to its own employees, if separately stated and
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I.
limited in total amount to not more than one percent (1%) of its Gross
Receipts per month, unless otherwise agreed by Authority;
Discounts, if separately stated, given by a Concession Operator on
sales of merchandise or services to employees of Authority, other Air
Transportation Company lessees in the Terminal, and other natural
persons employed at the Airport who are in possession of a valid
identification badge issued by Authority or an Air Transportation
Company;
J.
Gratuities for services performed by employees of a Concession
Operator that are paid by such Concession Operator or its customers
to such employees, except to the extent such Concession Operator
may be entitled to receive a portion of such gratuities;
K.
The sale or transfer in bulk of the inventory of a Concession Operator
to a purchaser of all or substantially all of the assets of such
Concession Operator in a transaction not in the ordinary course
business of the selling Concession Operator;
L.
Amounts given as discounts to customers redeeming coupons issued
by a Concession Operator; and
M.
Except with respect to insurance proceeds received due to loss of
gross earnings under any business interruption insurance coverage as
provided above and/or insurance proceeds that may be payable to
Authority under such coverage, receipts from all other insurance
proceeds received by a Concession Operator as a result of a loss or
casualty.
“Hazardous Materials” means and includes any and all substances,
materials, wastes, pollutants, oils or governmentally regulated substances or
contaminants defined or designated as hazardous, toxic, radioactive, dangerous or
any other similar term in or under any of the Environmental Laws, including,
without limitation, asbestos and asbestos-containing materials, petroleum products
(such as crude oil or any fraction thereof, gasoline, aviation fuel, jet fuel, diesel
fuel, lubricating oils and solvents), urea formaldehyde, flammable explosives, PCBs,
radioactive materials or waste, and any other substance that, because of its
quantity, concentration or physical, chemical or infectious characteristics, may
cause or threaten a present or potential hazard to human health or the
environment when improperly generated, used, stored, handled, treated,
discharged, distributed, disposed or released.
“Indemnified Parties” means Authority and its board of directors, officers,
employees, agents, servants, representatives, contractors, subcontractors,
Affiliates, subsidiaries, successors and assigns.
“Initial Capital Improvements” means the Capital Improvements to a
Concession Location to be completed in accordance with Section 10.2 hereof that
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are required to construct, improve and equip such Concession Location for the
initial Concession Operations to be conducted therein as described in the Proposal.
“Insurance Coverages” has the meaning assigned thereto in Section 15.5
hereof.
“Interim Phase” means the period of time commencing upon the
termination of the Pre-Occupancy Phase and, unless sooner terminated pursuant to
the terms and provisions hereof, continuing until the Commencement Date.
“Interim Concession Program” means the concession and construction
program as prepared by Concessionaire in accordance with Section 4.4(a) hereof
and approved by Authority, and as modified from time to time, for the operation
and development of Concession Operations during the Interim Phase.
“Joint Marketing Fund” means the accumulations of funds contributed by
Concessionaire and other concessionaires at the Airport to Authority to be spent for
the marketing and promotion of the overall concession program at the Terminal or
on any item or service that may enhance the overall passenger experience at the
Terminal related to concessions, as determined by Authority.
“Kiosk” means a site within the Premises that is a mobile or non-mobile,
free-standing temporary facility not affixed to the Terminal, whether completely
free-standing or located against the wall, which is used as a selling location for
merchandise or services.
“Landside” means all parts of the Terminal not located within the NonPublic Area, the Sterile Area or the Secured Area.
“Lease Year” means each twelve (12) calendar month period commencing
on July 1 of each calendar year during the Operational Phase; provided, however,
that, in the event the Commencement Date does not occur on July 1 of a calendar
year, the period from the Commencement Date through and including the
immediately following June 30 shall constitute a partial Lease Year hereunder.
“Letter of Credit” has the meaning assigned thereto in Section 19.1 hereof.
“MAG” means the minimum amount payable by Concessionaire to Authority
as Periodic Rent for the Concession Locations during the Term as set forth herein.
During the Interim Phase, the “MAG” shall be an aggregate annual amount equal to
the total of Fifty and No/100 Dollars ($50.00) multiplied by the total square footage
of all Concession Locations commencing, as to a particular Concession Location, on
the earlier of (A) the date that a Concession Operator commences Concession
Operations within such Concession Location or (B) ninety (90) days after the
Turnover Date for such Concession Location. During the Operational Phase, the
MAG
shall
equal
the
greater
of
(i)
________________________________________
and
No/100
Dollars
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($______.00) per Lease Year or (ii) eighty-five percent (85%) of the Gross Receipts
of Concessionaire for the immediately preceding Lease Year.
“Midterm Renovations” means Refurbishments, renovations and
remodeling of each Concession Location to be completed between the midway point
of the fourth (4th) full Lease Year of the Operational Phase and the midway point of
the fifth (5th) full Lease Year of the Operational Phase, pursuant to which
Concessionaire shall spend, or shall cause the Concession Operator of such
Concession Location to spend, not less than Fifty and No/100 Dollars ($50.00) per
square foot of such Concession Location in Eligible Costs to refurbish, renovate and
remodel such Concession Location.
“Minimum Rating” means a rating (if A.M. Best Company is the Rating
Service) of A- (Financial Size: X) based upon the criteria for financial strength and
financial size ratings utilized by A.M. Best Company on the date of this Agreement,
or such equivalent rating (if A.M. Best Company is not the Rating Service or if A.M.
Best Company subsequently revises its criteria for financial strength and financial
size ratings) as determined in the sole discretion of the Chief Financial Officer of
Authority.
“Non-Public Area” means the non-public areas of the Terminal [before the
passenger security checkpoints] to which an individual does not have access
without either a Non-Public Identification Badge, a Sterile Area Identification Badge
or a Secured Area Identification Badge.
“Non-Public Area Identification Badge” means the identification badge
issued by Authority to an individual to permit such individual to access the NonPublic Area.
“Operating Expenses” means all costs
Operators in day-to-day Concession Operations.
incurred
by
all
Concession
“Operational Phase” means the period of time commencing on the
Commencement Date and, unless sooner terminated pursuant to the terms and
provisions hereof or extended in accordance with Section 3.4 hereof, expiring at
11:59 p.m. on the last day of the eighth (8th) full Lease Year hereunder.
“PC Coverage” has the meaning assigned thereto in Section 15.2 hereof.
“Partial Taking” means a condemnation or taking by exercise of the power
of eminent domain by, or a conveyance in lieu thereof to, a Governmental Authority
(other than Authority) of any part of the Premises that does not constitute a Total
Taking.
“Periodic Rent” means the periodic payments due from Concessionaire to
Authority as described in Section 5.1 hereof.
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“Permanent Concession Program” means the concession program
prepared by Concessionaire in accordance with Section 4.4(b) hereof and approved
by Authority, and as modified from time to time, for the operation of the
Concession Locations during the Operational Phase.
“Person” shall mean any natural person, corporation, partnership, limited
liability company, trust, association, firm, entity or Governmental Authority.
“Personal Property Taxes” means any form of personal property taxes
and other governmental charges or impositions of any kind, including, without
limitation, ad valorem taxes, special assessments and liens for public
improvements, that are levied, assessed or imposed against personal property by
any Governmental Authority having the direct or indirect power to tax.
“Plans” means the completed set of architectural working plans, drawings
and specifications and engineering drawings and specifications prepared by
Concessionaire’s Architect/Engineer of record for the construction and installation of
Capital Improvements or Refurbishments.
“Point of Sale Data” means sales data reflecting the amount of each sales
transaction, items sold per transaction, time and date of the transaction and the
sales category applicable to each item sold.
“Premises” has the meaning assigned thereto in Section 3.1 hereof.
“Pre-Occupancy Phase” means the period of time commencing upon the
Effective Date and continuing until the Turnover Date of the first Concession
Location, unless this Agreement is earlier terminated in accordance with its terms.
“Proposal” means the document(s) requested by Authority and submitted
by Concessionaire in accordance with the RFP.
“RFP” means Authority’s Request for Proposals for Food and Beverage
Concessions at Birmingham International Airport, Birmingham, Alabama, dated
January 2, 2006, as amended by Addenda.
“Rating Service” means A.M. Best Company, or, if A.M. Best Company no
longer exists or discontinues its rating of insurance companies, such alternative
rating service for insurance companies as determined in the sole discretion of the
Chief Financial Officer of Authority.
“Reasonable Price” has the meaning assigned thereto in Section 8.1
hereof.
“Reasonable Pricing” means a pricing structure under which the charges,
fees or prices for any goods or services offered to the public at the Airport are
Reasonable Prices.
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“Real Property Taxes” means any form of real property taxes and other
governmental charges or impositions of any kind, including, without limitation, ad
valorem taxes, special assessments and liens for public improvements, that are
levied, assessed or imposed against real property by any Governmental Authority.
“Refurbishments”
means
the
construction,
installation,
repair,
maintenance, replacement or upgrade of Capital Improvements within a Concession
Location after the construction and installation of the Initial Capital Improvements
therein.
“Releasing Parties” has the meaning assigned thereto in Section 28.26
hereof.
“Rent” means the Periodic Rent, the Additional Rent and any other charges
due from Concessionaire to Authority hereunder.
“Rules and Regulations” means those rules, procedures and regulations
promulgated by Authority from time to time for the orderly use of the Airport, as
the same may be amended, modified or supplemented from time to time, and
including, without limitation, the Airport Security Plan.
“Secured Area” means the airfield at the Airport, as well as all portions of
the Terminal [beyond the passenger security checkpoints] as designated by
Authority from time to time, to which an individual does not have access without a
Secured Area Identification Badge.
“Secured Area Identification Badge” means the identification badge
issued by Authority to an individual to permit such individual to access the NonPublic Area, the Sterile Area and the Secured Area.
“Shell Condition” means smooth concrete floors, demising studs and walls,
and utility conduits, lines and pipes of typical commercial capacity and size located
at the division lines of each of the Concession Locations or in reasonable proximity
thereto.
“Sterile Area” means the non-public areas of the Terminal beyond the
passenger security checkpoints to which an individual does not have access without
either a Sterile Area Identification Badge or a Secured Area Identification Badge.
“Sterile Area Identification Badge” means the identification badge issued
by Authority to an individual to permit such individual to access the Non-Public Area
and the Sterile Area.
“Sublease” means a lease executed by Concessionaire and a Sublessee and
approved by Authority by which Concessionaire subleases to such Sublessee one or
more Concession Locations and any of the Support Space for a specified term.
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“Sublessee” means any person or entity that is party to a Sublease with
Concessionaire and has the right thereunder to occupy a Concession Location and
any of the Support Space and to use other portions of the Premises for Concession
Operations as provided under its Sublease.
“Sublease Rents” means
Concessionaire under Subleases.
the
amounts
paid
by
all
Sublessees
to
“Support Space” means the areas within the Premises as may be approved
from time to time by Authority for use by Concession Operators for storage and
food preparation, as described in Section 3.6 hereto.
“TSA” means the United States Transportation Security Administration, and
any successor agency, office or department thereof.
“Taxes” means (i) Personal Property Taxes, (ii) Real Property Taxes and (iii)
any amounts assessed against the Premises or any property of Concessionaire or a
Concession Operator by any Governmental Authority if, at any time during the
Term, the present method of taxation shall be changed so that, in lieu of the whole
or any part of any Personal Property Taxes or Real Property Taxes levied, assessed
or imposed on the Premises or any property of Concessionaire or a Concession
Operator, there shall be levied, assessed or imposed a capital levy or other tax
directly on the Rent and/or any assessment, levy or charge measured by or based
in whole or in part upon the Rent.
“Tenant Design Standards” means the standards, established by Authority
from time to time, to specify the aesthetic qualities and the design, construction
and materials requirements for the various concession areas in the Terminal,
including, without limitation, the Concession Tenant Design Manual included as
ATTACHMENT B to the RFP, as such manual may be amended, modified and revised
from time to time.
“Term” means the period commencing upon the commencement of the PreOccupancy Phase and continuing through and including the last day of the
Operational Phase, unless sooner terminated in accordance with the terms and
provisions of this Agreement.
“Terminal” means the interconnected facilities at the Airport, existing or
under construction as of the date of this Agreement, known individually as
Concourse A, Concourse B, Concourse C and Concourse D, along with all user
movement areas, public areas and baggage claim areas therein and interconnecting
the facilities, as shown in Exhibit A hereto, and all future expansions thereto.
“Total Taking” means a condemnation or taking by exercise of the power of
eminent domain by, or a conveyance in lieu thereof to, a Governmental Authority
(other than Authority) of (i) all of the Premises, (ii) fifty percent (50%) of the
square footage of the Concession Locations, or (iii) such a substantial portion of the
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Common Areas so as to render not less than fifty percent (50%) of the square
footage of the Concession Locations untenantable or inaccessible to passengers at
the Airport.
“Turnover Date” means the date on which Concessionaire is permitted to
send, or permitted to allow a Concession Operator to send, construction crews into
a particular Concession Location to commence the construction of the Initial Capital
Improvements therein in accordance with the terms and provisions of this
Agreement.
“WC Coverage” has the meaning assigned thereto in Section 15.4 hereof.
ARTICLE II
INCORPORATION OF PROPOSAL AND RFP
Section 2.1
Incorporation of Proposal and RFP.
The Proposal and the RFP are attached to this Agreement as Exhibit B hereto
and are incorporated and made a part hereof by reference. Concessionaire shall be
obligated to meet all specifications described in the RFP and the Proposal and any
written clarification thereto accepted by Authority; provided, however, that (i) in
the event an express provision of this Agreement is in conflict with any provision of
the RFP and/or the Proposal, this Agreement shall govern and control unless
Authority deems that the provision in the RFP and/or the Proposal offers a higher
level of service than indicated in the conflicting provision of this Agreement; and (ii)
the form of draft sublease included with the Proposal is specifically excluded from
the terms of this Section 2.1.
ARTICLE III
DEMISE OF PREMISES
Section 3.1
Demise of Premises.
Subject to the terms and provisions of this Agreement, Authority hereby
rents and leases to Concessionaire for the Term, and Concessionaire hereby takes
and rents from Authority, the following (collectively, the “Premises”): (i) the
Concession Locations, (ii) the Support Space (subject to the terms of Section 3.6
hereof), (iii) the non-exclusive right and privilege, for the benefit of Concessionaire
and the Concession Operators and their respective employees, guests, patrons,
invitees, suppliers and other authorized individuals, to use the Common Areas in
common with other tenants and occupants of the Terminal during the Term and to
use the Airport roadways as they may exist from time to time, including common
use roadways, for ingress to and egress from the Premises, subject to Applicable
Laws, and (iv) the non-exclusive right and privilege, for the benefit of
Concessionaire and the Concession Operators and their respective employees to
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use, in common with other tenants and occupants of the Terminal during the Term,
the walkways through areas within which any Support Space is contained.
Section 3.2
Concession Locations.
The Concession Locations identified below and as shown on Exhibit C hereto
are leased to Concessionaire within the Terminal for the Term as of the
commencement of the Pre-Occupancy Phase; provided, however, that
Concessionaire shall have no right to use, possess or occupy a Concession Location
until the Turnover Date for such Concession Location.
Section 3.3
Concession Location Approximate Square Footage.
Concessionaire shall move as expeditiously as possible in the development,
renovation and construction of the Initial Capital Improvements within the
Concession Locations; provided, however, that Authority recognizes that, during the
initial stages of the Interim Phase, it may be necessary for Concessionaire and the
Concession Operators to utilize a program of temporary Kiosks to provide adequate
levels of customer service to Airport users in accordance with Concessionaire’s
Interim Concession Program. Sizes of Concession Locations set forth above and
shown on Exhibit C hereto are approximate. Concessionaire shall be responsible for
the coordination, design and completion of such Concession Locations with the
Initial Capital Improvements in accordance with Authority’s Tenant Design
Standards. Without the prior written consent of Authority, not more than five
percent (5.0%) of a Concession Location may be used for storage, office or nonrevenue generating functions.
Section 3.4
Options to Extend Operational Phase.
Authority shall have the option to renew and extend the Operational Phase
for two (2) consecutive extension terms of one (1) year each. To renew and extend
the Operational Phase for a one (1) year extension term, Authority shall provide to
Concessionaire notice of Authority’s election to so renew and extend the
Operational Phase not less than one hundred eighty (180) days prior to the
expiration of the Operational Phase as it is then constituted.
Section 3.5
Changes to Premises.
This Agreement shall be supplemented to reflect any additions, deletions or
modifications to the Premises. Except as provided below in this Agreement with
respect to the Support Space, any addition, deletion or modification to the Premises
under this Section 3.5 shall not affect Concessionaire’s payment obligation pursuant
to the terms and provisions of this Agreement unless such change results in a
change in the total square footage of the Concession Locations of greater than
fifteen percent (15%) of the total Concession Locations leased to Concessionaire as
of the commencement of the Operational Phase. If the change results in the
addition of more than fifteen percent (15%) of the total square footage of the
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Concession Locations leased to Concessionaire as of the commencement of the
Operational Phase, then the MAG will be increased in proportion to the amount of
such percentage increase. If the change results in a reduction of greater than
fifteen percent (15%) of the total square footage of the Concession Locations
leased to Concessionaire as of the commencement of the Operational Phase, then
the MAG will be decreased in proportion to the amount of such percentage
reduction until sufficient space of similar quality, in Authority’s sole judgment, is
provided to Concessionaire as an addition to the Premises. Notwithstanding the
foregoing, the Periodic Rent for the Support Space shall be adjusted as of the date
of any addition to or deletion from the Support Space to reflect the actual square
footage of the Support Space included within the Premises.
Section 3.6
Deletion; Reduction.
Authority reserves the right, in its sole discretion, to delete or reduce any of
the
Concession
Locations
or
Support
Space
due
to
Airport
development/construction, operational necessity, security or safety considerations.
In the event of any such deletion or reduction, Concessionaire shall be given no less
than thirty (30) days’ prior notice unless circumstances beyond the control of
Authority occur (e.g., because of a direct or indirect requirement of the TSA or
other Governmental Authority). Authority will attempt to provide reasonably
comparable space for relocation within the Terminal but Authority has no obligation
to make any such comparable space available. Authority agrees to reimburse
Concessionaire for the reasonable and proper moving costs of movable furniture,
equipment, appliances, carpeting, decorations, special finishing work, signs, trade
fixtures and other items, as well as the undepreciated value of the Initial Capital
Improvements and Midterm Renovations that are not replaced or relocated, based
upon the Depreciation Schedule therefor. For purposes of this Section 3.6,
“reasonable and proper moving costs” shall mean the moving of furniture,
equipment, appliances, carpeting, decorations, special finishing work, signs, trade
fixtures and other items into the new comparable space, moving and reinstalling
telephone lines and computer equipment and connections, and reasonable
expenses associated with reinstalling electrical connections and other utilities (if
any). If a modification to the Common Areas renders a Concession Location no
longer commercially viable for the Concession Operator conducting Concession
Operations within such Concession Location, as determined by Authority based on
information to be provided by Concessionaire, then Authority will reimburse
Concessionaire for the remaining undepreciated portion of the affected Initial
Capital Improvements or Midterm Renovations, as the case may be, based upon the
Depreciation Schedule therefor. If Authority exercises its right to delete or reduce
space from the Premises, the portion of the Premises to be reduced shall cease to
be leased to Concessionaire and shall no longer be subject to the terms and
provisions of this Agreement. In addition, if Authority requires deletion or reduction
of the Premises, Authority shall not be liable to Concessionaire or any Concession
Operator for any damages, including, without limitation, damages for any
inconvenience or loss of business as a result of the deletion or reduction of any
Premises, except for the reimbursement of the undepreciated cost of Initial Capital
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Improvements or Midterm Renovations, as the case may be, as expressly set forth
in this Section 3.6.
Section 3.7
Support Space.
Authority will provide to Concessionaire, as a part of the Premises (but not
accessible to the public), the Support Space as identified in Exhibit F hereto for use
in connection with the management and development of Concession Operations.
The use and distribution of such Support Space among Concession Operators shall
be the responsibility of Concessionaire. Authority reserves the right (i) to relocate,
at its expense, such Support Space to other reasonably comparable areas in the
Terminal upon not less than thirty (30) days’ prior notice to Concessionaire or (ii) to
reduce the amount of such Support Space available to Concessionaire.
Concessionaire shall be responsible for the payment of all utilities consumed within
the Support Space and for the cost of any utility installations or hook-ups that are
in addition to those provided in the Support Space by Authority.
Section 3.8
Concession Numbering.
Concessionaire shall assign to each business conducting Concession
Operations a unique concept number for the purpose of tracking its productivity,
and such unit number will follow such business regardless of where it is located
within the Terminal. If a Concession Operator has Concession Operations within
multiple Concession Locations, the business conducted within each Concession
Location shall receive a separate number, regardless of whether one or more such
businesses are operated by the same Concession Operator or under the same food
and/or beverage concept.
ARTICLE IV
CONCESSIONAIRE’S OBLIGATIONS
Section 4.1
General Operational Standards.
Concessionaire shall develop the Concession Locations and manage the
Concession Operations so as to provide high quality, customer service-oriented food
and beverage concessions within the Premises to accommodate the traveling public
and other Airport users. Development and management of the Concession
Locations shall be the responsibility of Concessionaire, notwithstanding the
execution of one or more Subleases with respect to Concession Locations in
accordance with the terms and provisions of this Agreement.
Section 4.2
Concession Management.
Concessionaire shall perform the following duties, subject to the terms and
provisions of this Agreement:
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(a)
Prepare the Plans as required in Section 10.1 hereof;
(b)
Coordinate its subleasing activities with the Properties Department of
Authority and submit each proposed Sublease and supporting
documentation
therefor
(including
the
Concession
Location
Development Checklist Form contained in Exhibit E hereto and the
Concession Location Pro-Forma Operating Statement contained in
Exhibit F hereto, unless otherwise approved by Authority) to the
Properties Department of Authority at least forty-five (45) days prior
to the date on which the proposed Sublessee thereunder proposes to
commence the construction and renovation of the Concession Location
that is the subject of such proposed Sublease. No construction or
renovation of a subleased Concession Location may commence until at
least ten (10) days after the Sublease for such Concession Location
has been approved by Authority. All Subleases must be substantially in
the form of Exhibit G hereto, with such additions, deletions and
modifications thereto as may be approved by Authority. The term of
any Sublease may not extend beyond the expiration of the Term;
(c)
Bill and collect all amounts payable by Sublessees under Subleases;
(d)
Pay all Operating Expenses required under this Agreement;
(e)
Select, engage, employ, pay, supervise, direct and discharge all
employees or independent contractors reasonably necessary or
appropriate for the proper and safe operation and maintenance of the
Premises; satisfy the Concessionaire Insurance Requirements; and use
reasonable care in the selection, supervision and discharge of
Concessionaire’s employees and independent contractors;
(f)
Comply with all Applicable Laws, including, without limitation,
Applicable Laws providing for the fair and non-discriminatory hiring,
promotion and treatment of all employees, and monitor and enforce
compliance with such Applicable Laws by Concession Operators;
(g)
Cause Concession Operations within any Concession Location that
becomes vacant to be recommenced within forty-eight (48) hours after
the discontinuance of such Concession Operations, either directly by
Concessionaire or another Concession Operator, regardless of the
cause of the vacancy;
(h)
Monitor the sales activity, pricing, customer service, hours of
operation, merchandise and sales reporting of Concession Operators;
(i)
Ensure and oversee compliance by Concession Operators with First
Class Manner maintenance and performance standards;
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(j)
Cooperate with Authority in the event of the failure of any Concession
Operator to meet performance standards to be established by
Authority;
(k)
Remain current with all trends in Airport food and beverage concession
operations and provide to Authority a quarterly update regarding
recent trends or developments in Airport food and beverage
concession operations;
(l)
Direct, coordinate and monitor procedures and practices for deliveries
of goods, products, materials, equipment and supplies to
Concessionaire or any Concession Operator from any designated on- or
off-Airport loading or storage area. Subject to TSA and/or Authority
directives, all deliveries to Concession Locations that are not located
on the Landside must be completed, to the greatest extent possible,
from the Secured Area rather than through the areas used by
passengers beyond the passenger security checkpoints, and the
persons and vehicles making deliveries to Concession Locations must
have all applicable clearances and approvals from Governmental
Authorities to complete deliveries in this manner as described in
Section 4.13 hereof;
(m)
Provide quality control audits and reports covering compliance with the
requirements of this Agreement, the cleanliness of the Premises, the
timeliness of service within the Concession Locations, and the quality
of the products served or provided in the Concession Locations;
(n)
Collect and dispose of all concession-related refuse and garbage in
Authority-provided
dumpsters
and
cardboard
compactors.
Concessionaire shall be responsible for participating, and shall cause
the Concession Operators to participate, in the Airport-wide recycling
program for cardboard. Authority encourages all other recycling
programs, such as for cans, glass, food or other recyclable materials,
subject to compliance with the terms and provisions of this Agreement
and the Applicable Laws;
(o)
Maintain and develop, and cause each of the Concession Operators to
maintain and develop, programs to increase the business conducted
within each Concession Location(s) in which it conducts Concession
Operations. All Concession Locations shall be operated: (i) in a First
Class Manner seven (7) days a week, 365 days a year (unless
otherwise agreed by Authority or prevented by Force Majeure) and
during the hours specified in Section 4.5 hereof; (ii) in accordance with
the terms and provisions of this Agreement and Applicable Laws; and
(iii) in a manner otherwise consistent with the requirements prescribed
by Authority in accordance with Authority’s own determination of its
operational needs at the Terminal. Concessionaire shall establish
reasonable procedures for all Concession Operators to meet high
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quality customer service standards, to adjust (with Authority approval)
the opening and closing times of Concession Locations based on daily
flight schedules, and to receive from Authority and to disseminate
schedule changes, weather or maintenance delays and other flight
information that will require adjustments in Concession Operations to
meet such customer service standards; provided, however, that,
notwithstanding the foregoing, upon the expiration or early
termination of a Sublease, Concessionaire may leave the Concession
Location subject thereto vacant on an interim basis, but in any event,
Concession Operations within such Concession Location must be
recommenced within not less than thirty (30) days after the cessation
of Concession Operations therein. Concessionaire’s failure to cause the
re-commencement of Concession Operations within any vacant
Concession Location will not result in a reduction of the MAG owed to
Authority, and Concessionaire’s failure to meet the specified deadlines
shall result in the assessment of fines as provided in Section 24.1
hereof. In addition, if a vacated Concession Location has not reopened for business within such thirty (30) day period, then Authority
may reclaim such Concession Location and remove it from the
Premises with no reduction in the MAG. Authority may offer any such
Concession Location so reclaimed by Authority to others to develop,
lease, operate or manage a concession operation therein;
(p)
Serve as the project manager and provide the management,
administration and coordination of all design and construction
associated with the maintenance, repair and/or subleasing of the
Premises, including, without limitation, all Capital Improvements and
Refurbishments to be constructed, installed or completed within the
Concession Locations or the Support Space, whether initial
construction and alterations associated with any expansion,
redevelopment or refurbishment of the Premises or future construction
and alterations and including cleaning and maintenance of external
design elements installed as directed in the Tenant Design Standards;
(q)
Have the right, but not the obligation, to finance the improvement,
construction and equipping of any Capital Improvements or
Refurbishments pursuant to such financing arrangements as
Concessionaire may determine; provided, however, that, (i) although
Authority shall not be a party to such agreements or responsible in any
manner for the performance or enforcement thereof, no improvement,
construction or equipping of any part of the Premises may be
commenced until Authority shall have reviewed and approved such
financing arrangement for the applicable portion of the Premises; (ii) if
Concessionaire finances a Concession Operator’s costs of improving,
constructing or equipping a Concession Location or Support Space in
accordance with the terms and provisions of this Agreement,
Concessionaire’s right to repayment or reimbursement under such
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financing arrangement shall be junior and subordinate in all respects
to any obligation of such Concession Operator to Authority (and
Concessionaire agrees to execute any such additional instruments or
agreements evidencing such subordination as Authority may require);
and (iii) Concessionaire may not agree or arrange to tie-in or
otherwise condition such financing or undertaking for any Concession
Operator on any other rights, privileges, allowances or business terms
and conditions granted to a Concession Operator. Concessionaire shall
not waive any right to receive rents, fees, charges or other revenues
that may be paid or payable by any Concession Operator without the
prior written consent of Authority, and shall not grant any rent
abatements, extensions or other modifications without the prior
consent of Authority;
(r)
Ensure that grease traps are installed and checked/cleaned on at least
a monthly basis in all Concession Locations, and, if a problem develops
due to a clogged or under-maintained grease trap, Concessionaire
shall repair, or cause to be repaired, all damages caused thereby.
Concessionaire agrees that Authority may assess a fine for repeated
instances of overflowing or malfunctioning grease traps in accordance
with Section 24.1 hereof;
(s)
Maintain, and cause each Concession Operator to maintain in its
Concession Location, an adequate sales and work force at all times,
including, without limitation, sales, cashiers, management and
supervisory personnel on-site to fully meet customer needs at all times
and to use skill and diligence in the conduct of business.
Concessionaire shall cause, and shall cause Concession Operators to
cause, their respective employees to be courteous and helpful to the
public at all times;
(t)
Not divert any business from the Airport or cause or allow any
Concession Operator to do so;
(u)
Monitor consumer sentiment within the Premises through periodic
consumer surveys, the content of which shall be approved by Authority
in advance, and regularly study new industry trends;
(v)
Cooperate, and cause each Concession Operator to cooperate, in a
timely manner with Authority’s Public Safety Department in the testing
of all safety systems as required by Authority’s Public Safety
Department;
(w)
Exercise, and cause each Concession Operator to exercise, a high
degree of safety and care in the operation of the Premises;
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(x)
Not create, and not allow any Concession Operator to create, any
hazardous conditions on or about the Premises, the Terminal or the
Airport;
(y)
Operate,
operate,
Space in
minimize
(z)
Not permit, and not allow any Concession Operator to permit, any
music or other audio merchandising or background within a Concession
Location to be audible outside of such Concession Location; provided,
however, that Authority reserves the right to require that all music
within Concession Locations be kept to reasonable levels or be turned
off at the request of Authority;
(aa)
Answer, and cause any affected Concession Operator to answer, in
writing all written customer complaints within five (5) days after the
receipt thereof, and provide to Authority copies of all complaints to
Concessionaire or any Concession Operator and the answer thereof on
or before the last day of the calendar month in which such answer was
provided;
(bb)
Implement, and cause each Concession Operator to implement,
personnel policies providing that personnel of the food and beverage
concessionaires at the Airport prior to the Effective Date and their
subtenants shall be given first preference in hiring as personnel of
Concessionaire and its Concession Operators, as the case may be,
subject to reasonable hiring standards;
(cc)
Ensure compliance within the Concession Locations with Authority’s
signage standards and regulations;
(dd)
Participate in weekly meetings with Authority staff representatives
during the Pre-Occupancy and Interim Phases, and monthly meetings
with Authority staff representatives during the Operational Phase, to
discuss operational issues; and
(ee)
Concessionaires who sell food and beverage products are required to
use collapsible containers for all “grab and go” and leftover packaging.
(ff)
Meet all additional requirements of the RFP.
Section 4.3
use and maintain, and cause each Concession Operator to
use and maintain, the Concession Locations and Support
accordance with high standards and in such manner as to
emissions of all types, noises or noxious odors therefrom;
Concessionaire Staff.
Concessionaire shall employ, at no cost to Authority, at least one (1) fulltime, dedicated, on-site Concession Manager, and two (2) full-time, dedicated, onsite Assistant Concession Managers. The individual whom Concessionaire proposes
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to employ as the Concession Manager is subject to the prior approval of Authority.
The Concession Manager and Assistant Concession Managers shall serve as liaisons
with Authority and Concession Operators and have sufficient authority and support
staff and appropriate equipment, supplies and means to manage and perform the
development, management, maintenance, repair and other functions and
obligations of Concessionaire with respect to the Premises, including, without
limitation, the obligation to administer the Subleases and other contracts to which
Concessionaire is a party, to monitor and enforce compliance by Sublessees with
their Subleases and this Agreement, and to resolve operational issues that do not
require the execution of an amendment to this Agreement. The Concession
Manager and the Assistant Concession Managers shall use commercially reasonable
efforts to remedy any problem or issue raised by Airport patrons with respect to
Concession Operations within the Premises. Unless otherwise approved in writing by
Authority, the Concession Manager or an Assistant Concession Manager shall be
available twenty-four (24) hours per day to resolve any issues pertaining to
Concession Operations, shall be present at the Airport a minimum of twelve (12)
hours per day and available to meet with Authority representatives at the Airport,
and shall be available at all other times by telephone or pager to arrive by car at
the Airport within one (1) hour after being called in an emergency situation.
Authority reserves the right to require Concessionaire to remove and replace any
Concession Manager or Assistant Concession Manager who, in the determination of
Authority, does not satisfactorily perform his duties hereunder; provided, however,
that no Concession Manager or Assistant Concession Manager shall be deemed to
be an employee, agent or representative of Authority for any purposes whatsoever.
Section 4.4
(a)
Plans and Programs.
Within thirty (30) days after the Effective Date, Concessionaire shall
submit to Authority for its approval the final Interim Concession
Program to provide Concession Operations in a First Class Manner
during the transition from the existing concession program to
Concessionaire’s Permanent Concession Program. This Interim
Concession Program:
(i)
shall ensure a high level of customer satisfaction during the
Interim Phase;
(ii)
shall ensure that passengers within the Terminal are provided
with a variety of food and beverage choices;
(iii)
shall establish a barricade signage program for any unoccupied
or incomplete Concession Locations, the design of which shall be
subject to Authority’s permitting process and must compliment
the interior design and finish of the Terminal. Such barricades
shall provide information on locations providing similar products
or services within reasonable walking distance in the Terminal,
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as well as “coming soon” information, as it is available, and
barricade wall shall touch the ceiling and go to the floor level;
(iv)
shall specify the existing Concession Locations, if any, that will
continue to function in the same capacity prior to the
Operational Phase and for how long such operations shall
continue;
(v)
may include a combination of temporary Concession Locations
and permanent Concession Locations; and
(vi)
shall identify the Construction Schedule for those portions of the
Premises to be subject to construction or renovation.
Construction of all Concession Locations, temporary and permanent, is subject to
Authority’s permitting process as described in Section 10.1 hereof.
(b)
Within sixty (60) days after the Effective Date, Concessionaire shall
submit to Authority for its approval the Permanent Concession
Program for Concession Operations in a First Class Manner, which shall
include, without limitation, the following:
(i)
The type, quantity, size, designated location and configuration
of each Concession Location, as well as the overall plan for the
Concession Locations, including, without limitation, the food
and/or beverage concept to be located within each Concession
Location and the identity of proposed Concession Operator
thereof;
(ii)
The minimum rent required from a Sublessee for each type of
concession;
(iii)
Concessionaire’s specific plans to include DBEs as Concession
Operators;
(iv)
Concessionaire’s quality and service standards and required
hours of operation;
(v)
Concessionaire’s specific
Reasonable Pricing;
(vi)
A procedure to handle unusual situations in the Terminal such
as excessive lines, weather delays, etc.;
(vii)
Recommendations for areas within the Premises that might be
appropriate places for ATM’s, telephone card vending machines,
plans
to
monitor
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insurance vending Kiosks and other necessary services that do
not fall under this Agreement;
(viii) Provide which three (3) major credit cards will be accepted at
the locations; and
(viv) Such other information as Authority may reasonably deem
appropriate.
Section 4.5
Hours of Operation.
The Airport is open every day of the year and often busy during hours before
and after normal meal hours. In addition, travelers using the Airport have often just
traveled from different time zones and are not yet acclimated to the time zone in
which the Airport is located. For these reasons, all Concession Locations shall be
operated seven (7) days a week, 365 days a year, unless otherwise approved by
Authority, and in a manner otherwise consistent with the requirements prescribed
by Authority in accordance with the actual aviation operations at the Airport.
Generally, a Concession Location in the Sterile Area shall be open from one and
one-half (1½) hours before the first scheduled departure of the day from the
concourse where it is located to one-half (1/2) hour after the last actual arrival of
the day from such concourse. A Concession Location on the Landside shall be open
from 5:00 a.m. until 11:00 p.m. unless a specific Concession Location is designated
as a 24-hour facility by Authority or Authority specifies different operating hours
after not less than thirty (30) days prior notice to Concessionaire. Specific requests
for exceptions to these operating hours for holidays and other reasons (e.g.,
Refurbishments) must be submitted to Authority at least sixty (60) days before the
proposed change, and Authority shall provide its approval or disapproval of the
request, in part or total, within thirty (30) days after receipt of such request. Fines,
as provided in Section 24.1 hereof, may be imposed upon Concessionaire for the
failure of a Concession Location to operate during the hours prescribed herein,
beginning with a warning, then a fifty dollar ($50) fine, then a one hundred dollar
($100) fine, and after the fourth offense Authority will have the right, in its
discretion, to terminate the Agreement. Authority reserves the right to modify the
aforementioned hours of operation based on flight schedules and/or customer
demands. Neither Concessionaire nor any Concession Operator shall have the right
to modify the operating hours of any Concession Location without the prior approval
of Authority. Authority reserves the right to require Concessionaire to operate, or to
cause the applicable Concession Operator to operate, a specific Concession Location
beyond the designated operating hours due to unusual circumstances (e.g., delayed
flights, weather). Concessionaire shall establish reasonable procedures for adjusting
the opening and closing times of Concession Locations based on daily flight
schedules and incorporating those schedules into shift schedules for a Concession
Operator’s staff, as well as for receiving and disseminating schedule changes,
weather or maintenance delays and other flight information that will require
adjustments in such Concession Operator’s operations. In addition, Concessionaire
shall ensure that each Concession Operator is aware of the peak hours for its
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Concession Location and will staff the Concession Location appropriately to provide
excellent customer service and avoid lengthy service lines. The staffing levels at a
Concession Location must reflect both the hourly and seasonal fluctuations in
passenger traffic that affect such Concession Location.
Section 4.6
Annual Reporting.
Concessionaire shall submit, within sixty (60) days after the end of each
twelve (12) month period or portion thereof during the Interim Phase, and within
sixty (60) days after the end of each Lease Year (and at one other time during each
Lease Year if desired by Concessionaire or if requested by Authority), a report that
shall contain the following:
(a)
A review of the performance of Concession Operations for such prior
twelve (12) month period, Lease Year or other applicable period, as
the case may be, including, without limitation, Concession Operators’
achievement of sales projections, financial results and other goals and
objectives;
(b)
The establishment of new operational goals and objectives for the
forthcoming Lease Year, including projections, for each Concession
Location, of sales, sales per square foot, sales per Enplaned Passenger
and payments to Authority for the forthcoming Lease Year;
(c)
Identification of Concession Operations that either will or might be
replaced during the forthcoming Lease Year, along with photos,
drawings, etc., of proposed replacement concepts and the reasons for
such recommended changes;
(d)
A discussion of Concession Operators’ customer service improvements,
initiatives and activities, including, without limitation, information on
surveys, secret shopper programs, incentives, etc.;
(e)
Any planned expenditures or investments for improvements in the
Concession Locations;
(f)
Any changes or improvements in Concession Operations anticipated in
the forthcoming Lease Year, such as marketing efforts, training or
services at Concession Locations by Concession Operators;
(g)
Copies of any consumer surveys completed by a Concession Operator
and other industry trend studies;
(h)
A review of customer service issues, a complaint summary and how
complaints were handled during such prior twelve (12) month period,
Lease Year or other applicable period, as the case may be, with
respect to Concession Operations;
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(i)
An updated listing of Concession Locations, including, without
limitation, names, types and square footage of Concession Locations;
(j)
A listing of any problems encountered during such prior twelve
(12) month period, Lease Year or other applicable period, as the case
may be, and/or improvements to operations to enhance customer
service, sales or other aspects of Concession Operations that might
reasonably be completed by Authority in concert with Concessionaire;
and
(k)
Any other information reasonably requested by Authority.
Section 4.7
Signage Policy.
Except with the prior approval of Authority, neither Concessionaire nor any
Concession Operator may erect, maintain or display any signs or any advertising,
including, without limitation, the placement of stanchion signs, floor-standing
sandwich boards or other moveable signage, in, on or within the Premises. No
handwritten signs shall be permitted, except menu boards that reflect daily specials
and change on a daily basis. Authority may require the removal of any signs or
advertising in, on or within the Premises that Authority determines to be
unacceptable or improper. Placement of permanent signage is subject to Authority’s
permitting process. Upon the expiration or earlier termination of this Agreement,
Concessionaire shall remove or cover, as Authority may direct, any and all signs
and advertising in, on or within the Premises or elsewhere at the Airport installed
by or on behalf of Concessionaire or any Concession Operator. Concessionaire shall
restore the portion of the Premises and the Airport affected by such signs or
advertising to the same condition as existed prior to the installation of such signs
and advertising. In the event of a failure on the part of Concessionaire so to remove
or cover each and every such sign or advertising and to restore the Premises and
the Airport as required in this Section 4.7, Authority may perform the necessary
work and Concessionaire shall pay, upon demand of Authority, the actual and
reasonable cost thereof along with an administrative fee to Authority equal to
fifteen percent (15%) of such cost.
Section 4.8
(a)
Marketing and Promotions.
Commencing on the Commencement Date, Concessionaire shall
contribute to the Joint Marketing Fund, on a monthly basis, an amount
not to exceed three quarters of one percent (0.75%) of all Gross
Receipts derived from Concession Operations within the Premises. The
types of expenses that Authority may pay out of the Joint Marketing
Fund shall include, without limitation, the following: Direct costs
associated with marketing and promotional activities (including,
without limitation, costs incurred for the purchase of marketing
program creative materials, costs for special events and/or paid
media);
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(b)
Costs associated with marketing program development and the dayto-day coordination of the marketing program;
(c)
Costs for development and provision of shopping bags to promote
Concession Operations;
(d)
Secret shopping and other inspection programs with respect to
Concession Locations;
(e)
Directory signage within the Terminal relating to the Concession;
(f)
The preparation of a full-color catalog featuring the Concession
Operations, the Concession Locations and the products and services
offered by Concession Operators, which may include coupons; and
(g)
Other programs, such as brochures, common shopping bags, graphics,
media promotions, pamphlets and public events, to promote sales
through the Concession Program.
Authority shall maintain the Joint Marketing Fund in a separate account to be
established for this purpose, and the Joint Marketing Fund shall not be commingled
with any other funds of Authority. If actual Gross Receipts are not known at the
time a Joint Marketing Fund contribution is due, Concessionaire shall make a
contribution based upon an estimate of the monthly Gross Receipts, and the Joint
Marketing Fund contributions due from Concessionaire shall be adjusted within
thirty (30) days after the end of each six (6) month period so that Concessionaire’s
Joint Marketing Fund contributions are based on its actual Gross Receipts for such
six (6) month period. Not later than one hundred (120) days following the end of
each Lease Year, Authority shall report the total contributions to and the
expenditures from the Joint Marketing Fund for such Lease Year to Concessionaire.
Section 4.9
Rules and Regulations.
Authority shall have the right to adopt and enforce the Rules and Regulations
and operating performance standards with respect to the use of the Premises and
related facilities. Authority may amend or modify such Rules and Regulations and
operating performance standards from time to time after prior notice, which is
reasonable under the circumstances, to Concessionaire. From time to time,
Authority may issue directives or advisories that provide information to all Airport
tenants regarding issues that affect operations at the Airport. Concessionaire shall
be responsible for distributing copies of such directives or advisories to all
Concession Operators on a timely basis to ensure that all Concession Operators are
aware of the contents thereof and able to comply therewith. Concessionaire is
responsible for complying with, and ensuring that each Concession Operator
complies with, the Rules and Regulations as they exist from time to time, including,
without limitation, the Airport Security Plan.
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Section 4.10
Concession
Operator
Operational Audits.
Performance
Reviews;
Concessionaire shall complete regular reviews and operational audits of each
Concession Operator as described in Section 26.2 hereof.
Section 4.11
Transition.
Upon the expiration or earlier termination of this Agreement, Concessionaire
shall cooperate fully with Authority and any successor to Concessionaire to ensure
an effective and efficient transition of concession operations within the Premises to
Concessionaire’s successor. Concessionaire acknowledges and agrees, and shall
cause each Concession Operator to acknowledge and agree, that any licenses or
permits granted for use at the Airport in Concession Operations shall not be taken
off-Airport for use at other locations. Concessionaire acknowledges its responsibility
to help to ensure continued concession operations within the Premises in a First
Class Manner during any transition to a successor and shall take no action that
would impair the ability of any successor to Concessionaire to obtain, in a timely
manner, licenses and permits required to commence and maintain such concession
operations.
Section 4.12
Airport Security.
Employees, agents and representatives of Concessionaire and Concession
Operators and their respective contractors and subcontractors shall comply with the
Airport Security Plan and all other airport security regulations as adopted or
required by the TSA or other Governmental Authorities from time to time. If a
breach of the Airport Security Plan or such other airport security regulations occurs
as a result of the acts or omissions of an employee, agent, representative,
contractor or subcontractor of Concessionaire or a Concession Operator in any
manner or form at any time during the Term, Concessionaire immediately shall, or
shall cause such Concession Operator immediately to, remedy such breach or assist
the TSA or other Governmental Authorities in remedying such breach, regardless of
the circumstances. Concessionaire shall maintain, and shall cause the Concession
Operators to maintain, the integrity of the controlled access security system of the
Airport for the Term.
Section 4.13
(a)
Identification Badges and Security Clearances.
To the extent any of the personnel of Concessionaire or any
Concession Operator or any of their respective contractors or
subcontractors requires identification badges or security clearances for
access at the Airport, Concessionaire is responsible, at its expense, for
obtaining such identification badges and security clearances. Each
employee of Concessionaire or a Concession Operator or their
respective contractors or subcontractors who requires access to the
Non-Public Area in the performance of his duties must first obtain a
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Non-Public Area Identification Badge, which requires no background
check. Each employee of Concessionaire or a Concession Operator or
their respective contractors or subcontractors who requires access to
the Sterile Area or the Secured Area in the performance of his duties
must first obtain a Sterile Area Identification Badge or a Secured Area
Identification Badge, as the case may be. Prior to the issuance of a
Sterile Area Identification Badge or a Secured Area Identification
Badge to any individual, the applicant must submit to fingerprinting for
the purposes of undergoing a criminal history records check that will
determine whether such individual has, within the last ten (10) years,
been convicted of, or found innocent by reason of insanity with respect
to, one of thirty-six (36) disqualifying crimes. In accordance with TSR
1542 and Public Law 106-528, the results of this criminal history
records check will be used as the sole determining factor for granting
permanent unescorted Sterile Area or Secured Area access privileges
at the Airport. In addition to the required criminal history records
check for access to the Sterile Area and/or the Secured Area, each
individual applying for access thereto must attend a required security
training class sponsored by Authority before such identification badge
will be issued. No more than twenty-five percent (25%) of the
employees of a Concession Operator are eligible to obtain access to
the Secured Area. If the work to be completed by a particular
individual is of limited duration and Concessionaire or a Concession
Operator or any of their respective contractors or subcontractors has
an employee with a Sterile Area Identification Badge or Secured Area
Identification Badge, as required, available, an individual without the
required Sterile Area Identification Badge or Secured Area
Identification Badge may be escorted within the Sterile Area or the
Secured Area, respectively, as long as the individual with the required
Sterile Area Identification Badge or Secured Area Identification Badge,
as the case may be, remains with such escorted individual at all times
and is able to control him.
(b)
Authority shall sponsor the issuance of a total of up to three (3) Sterile
Area Identification Badges or Secured Area Identification Badges for
employees of Concessionaire and will perform the required criminal
history records check for the applicants for such identification badges.
These employees of Concessionaire shall then be responsible for
sponsoring (i.e., signing applications for identification badges) and
performing criminal history records checks for all subsequent
employees of Concessionaire, as well as for one (1) manager of each
Concession Operator. Thereafter, each manager of a Concession
Operator so sponsored by Concessionaire shall be responsible for
sponsoring (i.e., signing applications for identification badges) and
performing criminal history records checks for all employees of such
Concession Operator. Concessionaire shall provide to Authority notice
of the names and specimen signatures for each Concession Operator
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manager sponsored by Concessionaire. An employee of Concessionaire
or a Concession Operator who must receive a Sterile Area
Identification Badge or a Secured Area Identification Badge to perform
his duties may not begin work until the required Sterile Area
Identification Badge or Secured Area Identification Badge has been
issued. A person who possesses a Non-Public Area Identification
Badge, a Sterile Area Identification Badge and a Secured Area
Identification Badge must display it at all times while on the premises
of the Airport.
(c)
Authority reserves the right (i) to confiscate or suspend an Authorityissued identification badge of any person allegedly involved in any of
the criminal acts enumerated under 49 C.F.R. Part 1542 or for a
violation of the Airport Security Plan or other airport security
regulations applicable to the Airport; and (ii) to permanently revoke an
Authority-issued identification badge of any person upon a guilty or
nolo contendere plea or probation before final disposition of any such
criminal charges. Authority, the TSA and other security personnel may
challenge any person in the Non-Public Area, the Sterile Area or the
Secured Area who is not properly identified by an Authority-issued
identification badge, and, if positive identification or association cannot
be made, such person may be escorted from the Non-Public Area, the
Sterile Area or the Secured Area, as the case may be.
(d)
All Authority-issued identification badges and vehicle ramp permits are
the property of Authority and, upon the expiration or earlier
termination of the Term, the termination of the employment or
resignation of any employee of Concessionaire or a Concession
Operator or any of their respective contractors or subcontractors, or
the discontinuance of the use of the vehicle(s) for the purpose for
which vehicle ramp permit(s) were issued, Authority-issued
identification badges issued to employees of Concessionaire and such
Concession Operator or any of their respective contractors or
subcontractors and all such vehicle ramp permits must be returned to
Authority. In addition, the holder of a lost Authority-issued
identification badge or vehicle ramp permit is responsible for the
replacement cost thereof. The issuance of Authority-issued
identification badges and vehicle ramp permits are subject to the
completion of such applications and conditions as Authority may
require from time to time. All perimeter fence gates (manual and
automatic) at the Airport must be secured or manned at all times. Any
access gate or door found to be unsecured, or any entry by an
unauthorized person(s) and/or vehicle(s), as a result of
Concessionaire’s or a Concession Operator’s failure to comply, or to
cause compliance by any of their respective contractors or
subcontractors, with the Rules and Regulations shall subject
Concessionaire or such Concession Operator to a TSA-imposed fine of
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up to Ten Thousand and No/100 Dollars ($10,000.00) per occurrence,
and/or suspension or revocation of the violator’s Authority-issued
identification badge or vehicle ramp permit. Authority reserves the
right to require that vehicles must be inspected and approved for
operating in the Secured Area by Authority as a part of the application
process for a vehicle ramp permit to operate within the Secured Area.
(e)
In the event Authority determines that any fine or penalty has been
imposed upon Authority as a result of the failure of Concessionaire or a
Concession Operator or any of their respective contractors or
subcontractors to comply with Applicable Laws, Concessionaire shall
pay such fine or penalty or reimburse Authority therefor upon demand
by Authority. Concessionaire shall monitor compliance by each
Concession Operator and its contractors and subcontractors with the
requirements for identification badges and security clearances and the
screening of goods, products, equipment, materials and supplies of
such Concession Operator and its contractors and subcontractors.
Concessionaire shall enforce the remedies under its agreements with
Concession Operators to rectify violations or other deficiencies by them
with respect to the requirements of this Section 4.13.
Section 4.14
Employee Parking.
Employees of Concessionaire and Concession Operators shall be permitted to
park their personal vehicles in the employee parking areas designated by Authority
from time to time, subject to the same terms and conditions of use as are
applicable to employees of other tenants at the Airport, Air Transportation
Companies and other concessionaires using the employee parking areas at the
Airport. No parking will be provided to employees of Concessionaire or Concession
Operators in the parking garages at the Airport unless specifically required. All fees
associated with parking will be the responsibility of Concessionaire and their
employees.
Section 4.15
Knowledge of the Airport.
Employees of a Concession Operator are expected to be able to assist Airport
users with wayfinding within the Airport. As such, Concessionaire shall ensure that
each Concession Operator (i) causes its employees to have information regarding
the locations of other concessions, restrooms, elevators, airlines, gates, information
desks and other facilities within the Terminal and to provide such information upon
request and with courtesy and dispatch, and (ii) provides all of its employees with a
list of emergency and other important telephone numbers as well as other means
through which such employees can respond to customers’ requests for information.
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ARTICLE V
FINANCIAL TERMS
Section 5.1
Periodic Rent.
For the right to develop, manage and operate the Concession Program as
described herein and to lease the Premises in the Terminal during the Term,
Concessionaire shall pay, commencing on the first day of the Interim Period and
continuing throughout the Term, Periodic Rent determined as follows:
(a)
During each year of the Interim Phase, Concessionaire shall pay
Periodic Rent in an amount equal to the greater of (i) the MAG due for
such year as set forth herein or (ii) an amount equal to the applicable
percentage of Gross Receipts from Concession Operations for such
year from each Concession Location as set forth below:
(i)
___________ percent (___%) of Gross Receipts derived from
the
sale
of
_________________________
at
_________________________;
(ii)
___________ percent (___%) of Gross Receipts derived from
the
sale
of
_________________________
at
_________________________;
(iii)
___________ percent (___%) of Gross Receipts derived from
the
sale
of
_________________________
at
_________________________; and
(iv)
___________ percent (___%) of Gross Receipts derived from
the
sale
of
_________________________
at
_________________________.
Periodic Rent for any partial year of the Interim Phase shall be
prorated on the basis of the actual number of days included in such
partial year.
(b)
During each Lease Year of the Operational Phase, Concessionaire shall
pay Periodic Rent in an amount equal to the greater of (i) the MAG due
for such Lease Year as set forth herein or (ii) the applicable
percentages of Gross Receipts from Concession Operations for such
Lease Year as set forth below:
(i)
___________ percent (___%) of Gross Receipts derived from
the
sale
of
_________________________
at
_________________________;
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(ii)
___________ percent (___%) of Gross Receipts derived from
the
sale
of
_________________________
at
_________________________;
(iii)
___________ percent (___%) of Gross Receipts derived from
the
sale
of
_________________________
at
_________________________; and
(iv)
___________ percent (___%) of Gross Receipts derived from
the
sale
of
_________________________
at
_________________________.
Periodic Rent for any partial Lease Year shall be prorated on the basis
of the actual number of days included in such partial Lease Year.
(c)
During each year of the Interim Phase and each Lease Year,
Concessionaire shall pay Periodic Rent for the Support Space in an
annual amount equal to Thirty-Six and No/100 Dollars ($36.00) per
square foot of the Support Space. The Periodic Rent for the Support
Space shall be payable monthly at the same time as the monthly
installment of Periodic Rent for the Concession Locations is due
hereunder. On or before the first day of each month of the Term
commencing on the first day of the Interim Period, Concessionaire
shall pay a monthly installment of the MAG due hereunder equal to
one-twelfth (1/12) of the MAG specified herein for the year of the
Interim Phase or the Lease Year in which such month occurs. On or
before the twentieth (20th) day of each month of the Term,
commencing with the second month of the Interim Phase and ending
with the month following the final month of the Operational Phase,
Concessionaire shall remit to Authority the difference, if any, between
the monthly installment of MAG paid for the preceding month and the
aggregate amount of Gross Receipts due for such preceding month as
specified in this Section 5.1. Regardless of whether any additional
payment is due for the preceding month, Concessionaire shall submit,
on or before the twentieth (20th) day of each month, (i) a Concession
Location Sales Report in the form of the Exhibit H hereto that details
the total Gross Receipts for such preceding month from the Concession
Program and a breakdown of such Gross Receipts by Concession
Location, and (ii) DBE utilization reports in a form acceptable to
Authority. In addition, within sixty (60) days after the end of each
year of the Interim Phase and each Lease Year, Concessionaire shall
provide its annual report, as required by Section 4.6 hereof, along with
a reconciliation and payment to Authority (if any is due) as follows: (A)
a comparison of the MAG for such preceding year or Lease Year and
the percentage of Gross Receipts due to Authority for such year or
Lease Year to determine the total amount owed to Authority by
Concessionaire for such preceding year or Lease Year under this
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Section 5.1; and (B) payment of any additional amount owed as Rent
for such preceding year or Lease Year under the terms of this
Agreement. In the event that such Annual Report reflects an
overpayment by Concessionaire of Periodic Rent for such preceding
year or Lease Year, Concessionaire shall receive a credit by Authority
for the overpayment with respect to subsequent Periodic Rent due to
Authority or a refund, as Authority may determine; provided, however,
that in no event shall Concessionaire take a credit against any
subsequent Periodic Rent owed to Authority for any such overpayment
without the prior written approval of Authority. No rents, fees or other
payments to Authority will be due or will accrue during the PreOccupancy Phase. Concessionaire shall have no right to set-off or offset any Rent owed under this Agreement against any against amounts
that may be payable by Authority to Concessionaire.
Section 5.2
Payments to Authority.
All payments to Authority shall be made payable to “Birmingham Airport
Authority” and forwarded, along with required reports, to the following address:
Birmingham Airport Authority
5900 Airport Highway
Birmingham, Alabama 35214
Attn: Accounts Receivable
or to other such party or addressee as designated by Authority pursuant to this
Agreement, or set up for automatic withdrawal by the Authority, whichever is
deemed relevant by the Authority.
Section 5.3
Utilities; Common Area Maintenance Charges; Taxes
and Other Charges.
It is the responsibility of Concessionaire to provide any utility connections
(other than those provided by Authority when a Concession Location is provided in
Shell Condition) necessary for the safe, convenient and legal operation of
Concession Operations within a Concession Location and the use of any Support
Space. All telecommunications connections serving the Concession Locations and
expenses therefor, both hard-wired and wireless, are the responsibility of
Concessionaire and must be completed through existing cables. Concessionaire
shall pay all charges for heat, water, gas, sewage, electricity and other utilities used
or consumed within the Concession Locations and the Support Space. Authority
shall not be liable for any interruption or failure in the supply of any such utility
services to the Premises, and Concessionaire covenants and agrees that Authority
shall in no event be liable or responsible to Concessionaire or any Concession
Operator for any loss, damage or expense that Concessionaire or such Concession
Operator may sustain or incur if either the quality or character of any utility service
is changed or is no longer suitable for the requirements of Concessionaire or such
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Concession Operator. Concessionaire covenants and agrees that, at all times, the
use of electric current by Concessionaire and Concession Operators shall never
exceed the capacity of existing feeders and wiring to the applicable portion of the
Premises and that Concessionaire and Concession Operators shall make no
alterations or additions to the electric equipment and/or appliances serving the
Premises without the prior consent of Authority in each instance. Concessionaire
also shall participate, and shall cause other Concession Operators to participate, in
Authority’s Shared Tenant Services Program for Telecommunications on Authority’s
private phone system offered to all tenants of the Terminal at rates established by
Authority. Access to Authority’s fiber optic backbone and/or neutral wireless system
shall be available to Concessionaire and Concession Operators at rates established
by Authority from time to time. Concessionaire also shall pay to Authority,
commencing upon the commencement of Concession Operations hereunder,
Common Area Maintenance Charges in an amount equal to one and twenty-five
one-hundredths (1.25%) of the Gross Receipts from Concession Operations
hereunder. Concessionaire shall pay Common Area Maintenance Charges monthly,
and, on or before the twentieth (20th) day of each month of the Term, commencing
with the second month of the Interim Phase and ending with the month following
the final month of the Operational Phase, Concessionaire shall remit to Authority an
amount equal to one and twenty-five one-hundredths (1.25%) of the Gross
Receipts from Concession Operations for the preceding month as reflected on the
monthly report of Gross Receipts required by Section 5.1 hereof. In addition,
Concessionaire shall pay, or cause the payment of, all Taxes and other
governmental charges or impositions of any kind imposed against the Premises or
any property of Concessionaire or a Concession Operator prior to the time that the
payment of any such Taxes would become delinquent.
Section 5.4
Late Payments.
Any payment of Rent due to Authority that is not received by Authority within
ten (10) days from date due shall be assessed an additional one and one quarter
percent (1.25%) fee per month late charge until paid in full.
ARTICLE VI
CONCESSION OPERATIONS
Section 6.1
Permitted Uses.
Concessionaire shall provide a variety of food and beverage Concession
Operations in the Premises to serve Airport users food and beverage options
comparable to those available in a typical retail mall environment in the
Birmingham-Hoover, Alabama metropolitan statistical area (“Birmingham MSA”)
and shall ensure that Concession Operations are maintained in the Concession
Locations for such uses:
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Generic Concession Operations and names, such as those indicated by
designations such as “Snack Shop,” are not permitted. Concessionaire shall
ensure that products and shops featuring the products of Middle Alabama
and the Birmingham MSA are an integral part of the Concession Program.
Each Concession Operator is responsible for obtaining all licenses and permits
necessary for sales of any food or beverage it wishes to offer, including,
without limitation, alcoholic beverage licenses and permits.
In addition, Concessionaire shall ensure the following: Each Concession
Location shall provide change to patrons upon request and without requiring
a purchase or requiring the patron requesting change to wait for another
patron to purchase items. In the event any question or dispute arises as to
whether any specific item or category of items may be sold at a Concession
Location, Authority shall give a decision in writing and such determination
shall be considered as the final resolution of the matter. Concessionaire shall
abide by and conform to the decisions of Authority. A Concession Operator
may provide Catering Services upon demand, and a Concession Operator
also may provide such services within airline or Airport clubs if so requested
by the club’s sponsor or operator.
Section 6.2
Prohibited Concession Activities.
Concessionaire understands and agrees that the following products or
services are not permitted to be sold under or through the Concession Program
within or from the Premises:
(a)
Insurance of any kind;
(b)
Commercial advertising services, signage and displays;
(c)
Telephone, telegraph, Internet access and broadband facilities;
(d)
Lockers for immediate storage of baggage;
(e)
Ground transportation and parking services;
(f)
Hotel accommodations;
(g)
Foreign currency exchange (although foreign currencies may be
accepted for payment for items purchased in a Concession Location in
the discretion of the applicable Concession Operator);
(h)
Automatic teller machines;
(i)
Baggage carts;
(j)
Airline tickets;
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(k)
Travel agency activities;
(l)
Postage stamp machines, as well as postage stamp books or individual
stamps not dispensed from a machine;
(m)
Check-cashing services;
(n)
Prepaid telephone card vending machines; and
(o)
Money orders.
ARTICLE VII
DISADVANTAGED BUSINESS ENTERPRISE PARTICIPATION
Section 7.1
Encouragement of DBE Participation.
This Agreement is a revenue-producing contract awarded to Concessionaire
to develop, manage and operate the Concession Program and will result in the
provision of goods and services to passengers, patrons and tenants at the Airport.
Federal law and regulations impose DBE goals upon the performance of this
Agreement by Concessionaire, and Authority encourages Concessionaire voluntarily
to strive to include significant DBE involvement in the Concession Program through
joint venture agreements with DBEs. Authority also encourages both Concessionaire
and Concession Operators to subcontract the design and construction aspects of the
Concession Program to DBEs.
Section 7.2
DBE Participation Goals.
To provide a fair opportunity for DBE participation in the Concession
Program, Authority requires that Concessionaire make good faith efforts, as
described in 49 C.F.R. Section 23.95(i), to provide for a level of Authority-certified
DBE participation in the Concession Program that results in the generation of fifteen
and seven tenths percent (15.7%) or more of total Gross Receipts from Concession
Operations that are attributable to the participation of Authority-certified DBEs in
the Concession Program; provided, however, that Gross Receipts derived from inflight Catering Services shall not be included in Gross Receipts for purposes of
calculating the percentage of DBE participation in the Concession Program. A DBE is
required to perform a commercially useful function by being independently
responsible for the execution of a distinct element of the work and carrying out its
responsibilities by actually performing, managing and supervising the work
involved. In light of industry practices and other relevant considerations, the DBE
must have a necessary and useful role in the transaction of a kind for which there is
a market outside the context of the DBE program (e.g., operating one or more
Concession Locations). For goal-attainment purposes, all DBEs must be certified by
Authority. Concessionaire shall engage in good faith efforts to meet the DBE
participation goal set forth in this Section 7.2 and shall submit executed
agreements with Authority-certified DBEs to Authority within sixty (60) days after
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the award of this Agreement to Concessionaire. To determine compliance with such
DBE participation goal, Authority requires that Concessionaire submit certified
monthly reports indicating the Gross Receipts of all Concession Operations and the
Gross Receipts of all DBEs participating in the Concession Program as described in
this Section 7.2. Authority and its duly authorized representatives shall have the
right to audit such monthly reports with or without prior notice, and all such records
must be retained by Concessionaire for a period of three (3) years following the
expiration or earlier termination of the Term and will be made available for
inspection upon request by Authority or other Governmental Authority.
Section 7.3
Failure to Meet DBE Goal.
If Concessionaire fails to achieve and maintain the goal of Authority-certified
DBE participation set forth herein, Concessionaire shall submit documentation
demonstrating its good faith efforts to include DBEs within the Concession Program
to achieve and maintain the specified goal for DBE participation. The documentation
shall include, without limitation, correspondence, telephone calls, etc., to locate and
obtain the participation of Authority-certified DBEs in the Concession Program.
Section 7.4
Discrimination Prohibited.
This Agreement is subject to the requirements of the U.S. Department of
Transportation’s regulations, 49 C.F.R. Part 23, Subpart F. Concessionaire agrees
that it will not discriminate against any business owner because of the owner’s
race, color, national origin or sex in connection with the award or performance of
any concession agreement covered by 49 C.F.R. Part 23, Subpart F. Concessionaire
agrees to include the above statements in any subsequent concession agreements
that it executes and cause those businesses to similarly include the statements in
further agreements.
ARTICLE VIII
PRICING
Section 8.1
Reasonable Pricing.
Concessionaire and Concession Operators shall observe and maintain
Reasonable Pricing for goods and services sold within the Concession Locations. For
purposes of this Agreement, the term “Reasonable Price” shall mean the regular
price of the good or service charged at an off-Airport, comparable location,
determined as follows:
(a)
If an entity of the same business, franchise or trade name as a
Concession Operator operates in a non-Airport location within a
reasonable geographic radius from the Airport, the Reasonable Price
for a product shall be the price at the nearest non-Airport location
designated by Concessionaire and approved by Authority. Requests for
changes to the comparable location or locations for the determination
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of a Reasonable Price and the reasons for such changes shall be
provided to Authority for its approval and shall become effective only
upon receipt of Authority’s approval;
(b)
If an entity of the same business, franchise or trade name as a
Concession Operator does not operate within a reasonable geographic
radius of the Airport, the Reasonable Price for a product shall be the
regular price of the product at the nearest entity of the same business,
franchise or trade name, as agreed by Authority and Concessionaire;
(c)
If a product is not available from an entity of the same business,
franchise or trade name as stated in Sections 8.1(a) and (b) hereof,
the Reasonable Price for such product shall be determined by
reference to a range of the regular prices of three (3) separate
businesses for such product, of comparable nature, ambiance and
product and service lines, within a fifteen (15) mile geographic radius
from the Airport or at the nearest entity of the same business,
franchise or trade name, as agreed by Authority and Concessionaire;
and
(d)
If a Concession Operator is a franchisee or retail outlet of an entity
with a national pricing structure identical for all franchisees or outlets,
the Reasonable Price for a product shall be determined in accordance
with such pricing structure.
Where an identical product is not available at an agreed comparable location,
any difference in size or quality shall constitute a price differential. Concessionaire
is required to submit, prior to the opening of a Concession Location, a complete list
of items to be offered by the Concession Operator therein and the prices to be
charged for Authority’s approval. No Concession Location shall open without such
Authority approval. Concessionaire shall submit to Authority, within sixty (60) days
after the end of each year of the Interim Phase and each Lease Year, an annual
pricing report for each Concession Location that indicates the extent of compliance
by the Concession Operator thereof with Reasonable Pricing and the actions taken
by Concessionaire and each Concession Operator to remedy any noncompliance.
Section 8.2
Pricing Adjustments.
Not less than three (3) times per year of the Interim Phase and per Lease
Year, Concessionaire shall conduct, or shall cause to be conducted, an audit
concerning compliance with the Reasonable Pricing requirement by Concession
Operators for current products available and price levels within Concession
Locations. The audit shall compare the price levels of current products available at
the Airport with the price levels at off-Airport comparable locations as described in
Section 8.1 hereof. In the event of noncompliance with the Reasonable Pricing
requirements herein by a Concession Operator, Concessionaire shall cause such
Concession Operator to bring all products into compliance with the Reasonable
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Pricing requirements based upon the audit results within seven (7) days after such
noncompliance is identified.
Section 8.3
Discounts for Airport Employees.
Concession Operators are permitted, but not required, to offer discounted
prices to Airport employees and other users of the Airport who have Authorityissued identification badges. The exact types and amounts of discount may vary by
Concession Location, but the discounts offered at any particular Concession
Location must be approved by Authority prior to the opening of such Concession
Location. In addition, no discounts may be changed, modified or discontinued
without not less than thirty (30) days’ prior notice to Authority.
ARTICLE IX
SUBLEASES; AGREEMENTS WITH CONCESSION OPERATORS
Section 9.1
Permitted Subleases.
Concessionaire may sublease any Concession Location to a Sublessee
pursuant to a Sublease previously approved by Authority. As a part of its Proposal,
Concessionaire provided a sample Sublease to Authority. No later than thirty (30)
days following the Effective Date, Authority shall supply Concessionaire with
required changes to the sample Sublease, and Concessionaire must then return the
revised Sublease to Authority within thirty (30) days thereafter for final approval.
The approved form Sublease shall be attached as Exhibit G hereto. No Sublessee
may commence any work in the construction, renovation or development of any
portion of a Concession Location until ten (10) days after Authority has received a
fully executed Sublease by and between Concessionaire and such Sublessee in the
form approved by Authority.
Section 9.2
Agreements with Concession Operators.
Without the prior approval of Authority, which Authority may grant or
withhold in its sole discretion, Concessionaire shall not assign, delegate, transfer or
convey to any Person the right to conduct Concession Operations within or on the
Premises other than to a Sublessee in accordance with a Sublease otherwise
permitted by the terms of this Agreement. No such assignment, delegation, transfer
or conveyance approved by Authority may extend beyond the Term.
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ARTICLE X
CONSTRUCTION; CAPITAL IMPROVEMENTS
Section 10.1
Permitting; Planning Requirements.
Before Concessionaire or any Concession Operator may undertake any
construction or improvement work within the Terminal, Authority requires that
Concessionaire and such Concession Operator obtain permits and otherwise comply
with the requirements of Authority’s Tenant Design Standards, including, without
limitation, the requirements for the submission and approval of the Plans for all
Capital Improvements and Refurbishments for each Concession Location.
Concessionaire shall act as the construction coordinator with Authority for each
Concession Operator’s design and construction requirements. During the PreOccupancy and Interim Phases, Concessionaire, along with Concessionaire’s
Architect/Engineer and others as necessary, shall attend weekly meetings with
Authority representatives for the purpose of the review of drawings, plans, finishes
and specifications pursuant to Authority’s Tenant Design Standards.
Section 10.2
Initial Capital Improvements.
Concessionaire shall construct, equip and install, or cause to be constructed,
equipped, and installed, the Initial Capital Improvements in each Concession
Location in accordance with the plans and specifications to be submitted to and
approved by Authority in its sole discretion, free and clear of all liens,
encumbrances and security interests. The construction, equipping and installation of
the Initial Capital Improvements within a Concession Location shall be completed
within ninety (90) days after the Turnover Date for such Concession Location.
Concessionaire shall ensure that construction activities are closed off from public
view with a painted gypsum board dust partition with attractive, easily readable
signs explaining the construction, as approved by Authority prior to such
construction. The Initial Capital Improvements to be constructed, equipped and
installed in each Concession Location shall require an expenditure by
Concessionaire and/or the applicable Concession Operator of not less than
_________________________________________ Dollars ($______) in Eligible
Costs per square foot of such Concession Location. Constructed wall and sign
graphics are at the expense of the Concessionaire. However, if not installed within
ten (10) days of plan approval, BAA will install at cost plus a 15% fee.
Section 10.3
Authority Responsibility.
Concessionaire’s acceptance of a Concession Location on the Turnover Date
thereof shall be conclusive evidence that Concessionaire has accepted such
Concession Location in “as is, where is, and with all faults” condition and that such
Concession Location was in good and satisfactory condition for the use intended at
the time such possession was taken.
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Section 10.4
Certification of Construction Expenditures.
Concessionaire shall provide Authority with certified receipts and lien releases
for the Initial Capital Improvements and Midterm Renovations to a Concession
Location required hereunder within ninety (90) days after the completion thereof in
detail acceptable to Authority to enable Authority to verify compliance with the
requirements of this Agreement. In the event that such certified receipts indicate
that Eligible Costs incurred with respect to the Initial Capital Improvements or
Midterm Renovations required hereunder are less than required under the terms
and provisions of this Agreement, Concessionaire shall pay to Authority one
hundred ten percent (110%) of the difference between the amount required to be
spent and the Eligible Costs actually incurred by Concessionaire and/or a
Concession Operator as indicated by such certified receipts. If Authority disputes
the amount of Eligible Costs claimed by Concessionaire and/or a Concession
Operator, Authority may utilize its own audit and accounting staff or, at its option
and expense, hire a certified public accountant to audit the Eligible Costs actually
incurred by Concessionaire and/or a Concession Operator with respect to such
Concession Location. If it is determined that the Eligible Costs actually incurred by
Concessionaire and/or a Concession Operator with respect to such Concession
Location are less than the minimum required hereunder, then Concessionaire shall
pay, in addition to the other amounts due hereunder, the cost of conducting such
audit to Authority within thirty (30) days of the determination.
Section 10.5
Financing Capital Improvements/Liens.
If Concessionaire decides to finance a Sublessee’s construction costs for
Capital Improvements or Refurbishments, Concessionaire shall not be entitled to
deduct any costs or expenses it incurs in connection with any such financing or
undertakings from Sublease Rents, nor shall interest earned and/or principal
payments from such financing be included in Sublease Rents. All Capital
Improvements and Refurbishments, upon termination or earlier expiration of the
Term shall, at the option of Authority, immediately become the property of
Authority, free and clear of any liens or encumbrances whatsoever. To the extent
Authority elects not to retain title to some or all of the Capital Improvements or
Refurbishments, Concessionaire immediately shall remove, or shall cause the
applicable Concession Operator immediately to remove, any such Capital
Improvements or Refurbishments. Concessionaire shall repair any damage to the
Base Building Work due to removal of Capital Improvements or Refurbishments at
no cost to Authority. Concessionaire agrees that any contract for construction,
alteration or repairing of Capital Improvements or Refurbishments or for the
purchase of material to be used, or for work and labor to be performed within or on
the Premises, shall be in writing and shall contain provisions to protect Authority
from the claims of any laborers, subcontractors or materialmen against the
Premises and otherwise comply with the requirements of the Tenant Design
Standards. Concessionaire agrees to give Authority immediate notice of the placing
of any lien or encumbrance against the Premises or the Terminal and further agrees
to extinguish such lien in accordance with Section 14.1 hereof.
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Section 10.6
Ventilation
Smoking.
for
Concession
Locations
Allowing
Smoking shall only be permitted in specific Concession Locations approved by
Authority. In any Concession Location in which smoking is permitted,
Concessionaire shall provide, and shall cause the applicable Concession Operator to
provide, ventilation, doors and closures that ensure smoke does not escape from
the smoking area of such Concession Location to other interior spaces of the
Terminal and is separately ventilated directly outside of the Terminal.
Section 10.7
Construction Fines.
All contracts for the construction of Capital Improvements and
Refurbishments shall require completion of such Capital Improvements or
Refurbishments within the Construction Schedule therefor submitted by
Concessionaire and accepted by Authority and shall contain reasonable and lawful
provisions for the payment of actual or liquidated damages in the event a
contractor fails to complete such construction on a timely basis. Concessionaire
agrees that it will take all necessary action available under each such construction
contract to enforce the timely completion of the work covered thereby. Fines,
payable to Authority for failure to open a Concession Location as required under
this Agreement, are described in Section 24.1 hereof.
Section 10.8
Midterm Renovations.
Concessionaire shall complete, or shall cause the applicable Concession
Operator to complete, the Midterm Renovations for each Concession Location as
required hereunder.
Section 10.9
Surrender of Premises.
Upon the expiration or earlier termination of the Term, Concessionaire shall
yield and deliver peaceably to Authority possession of the Premises and the Capital
Improvements and Midterm Renovations (to the extent Authority has elected to
retain title thereto), broom clean and in a condition at least as good as that which
existed on the Effective Date, except for obsolescence and ordinary wear and tear.
Concessionaire shall cause the immediate removal of all Capital Improvements and
Midterm Renovations for which Authority has not elected to retain title thereto from
the Premises upon the expiration or earlier termination of the Term, and
Concessionaire shall repair any damage caused by such removal at its sole cost and
expense. In the event that the Premises are not in the condition required by this at
the expiration or earlier termination of the Term, Authority shall have the right to
draw against Concessionaire’s Letter of Credit for the funds necessary to restore the
Premises and the Capital Improvements and Midterm Renovations surrendered to
Authority to such condition. In addition, Authority also shall have the right to draw
against Concessionaire’s Letter of Credit for the funds necessary to dispose of any
Capital Improvements and Midterm Renovations to which Authority does not take
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title and to restore any damage to the Premises resulting from such disposition,
plus an administrative fee equal to fifteen percent (15%) of the cost of such
disposition and restoration if Concessionaire fails to have caused such Capital
Improvements and Midterm Renovations to be removed from the Premises and the
repair of any such damage prior to the expiration or earlier termination of the
Term.
ARTICLE XI
PREMISES MAINTENANCE; RESERVATION OF RIGHTS
Section 11.1
Premises Maintenance.
Authority shall have primary responsibility for all maintenance, cleaning and
routine upkeep of the Common Areas and shall keep such Common Areas in a
clean, neat, orderly, sanitary and attractive condition. Concessionaire shall be
responsible for the cleaning, maintenance, repair and replacement of the
Concession Locations and the Support Space and shall keep, and cause the
applicable Concession Operators to keep, the Concession Locations and the Support
Space in a clean, neat, orderly, sanitary and attractive condition. Concessionaire
agrees that all personal property brought into the Premises by Concessionaire or
any Concession Operator or any of their respective agents, contractors, employees,
invitees, assignees, subtenants or licensees, shall be at the sole risk of
Concessionaire and such Concession Operator. Authority shall not be liable for theft
thereof or for money deposited therein or for any damage thereto, such theft or
damage being the sole responsibility of Concessionaire or such Concession
Operator, and Concessionaire hereby agrees to indemnify, defend and hold the
Indemnified Parties harmless from any and all claims arising or resulting directly or
indirectly from any such theft or damage. Concessionaire agrees to provide at its
own expense such janitorial, toilet and cleaning services and supplies as may be
necessary or required in the operation and maintenance of the Concession
Locations.
Section 11.2
Maintenance and Repair.
Concessionaire, at its sole cost and expense, shall be responsible for the
repair and maintenance of the Capital Improvements and Refurbishments and any
other equipment or property of Concessionaire or Concession Operators located
within the Premises. Without limiting the generality of the foregoing, Concessionaire
shall, at its sole cost and expense:
(a)
Maintain the Concession Locations and the Support Space, and all
fixtures, equipment and personal property of Concessionaire and
Concession Operators that are located in any other part of the
Premises, in a clean and orderly condition and appearance at all times,
including, without limitation, painting areas visible to the general
public and, subject to the requirements of Article X hereof, make all
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repairs and replacements and all rebuilding of the Capital
Improvements and Refurbishments, ordinary and extraordinary, partial
and entire, foreseen and unforeseen, structural or otherwise, which
repairs, replacements and rebuilding shall be in quality and class equal
to or better than the original in materials and workmanship, and shall
pay promptly the cost and expense of all such maintenance, repairs,
replacements and rebuilding;
(b)
Keep the Concession Locations and the Support Space at all times free
of insects, vermin, rodents and other pests;
(c)
Provide and maintain all fire protection and safety equipment and all
other equipment of every kind and nature required by any Applicable
Laws, the terms and provisions of this Agreement and any insurance
carrier providing insurance covering any portion of the Premises, the
Capital Improvements or the Refurbishments; and
(d)
Be responsible for the maintenance and repair of all utility service
lines, connections and valves, including, without limitation, service
lines for the supply of electric power, telephone and data transmission
conduits and lines, located upon or exclusively serving a Concession
Location (except to the extent repair relates to Base Building Work
installed by or on behalf of Authority) or the Support Space.
Section 11.3
Notice of Injury or Damage.
Concessionaire shall promptly notify Authority at Airport Operations Center at
205-599-0519 of any accident or event arising in any manner from the Concession
Operations that results in or might have resulted in bodily injury, personal injury,
property damage or loss of any kind. In addition, Concessionaire shall send a
written report to Authority within twenty-four (24) hours or as soon as possible, but
no more than four (4) business days for Authority, after such accident or event.
Section 11.4
Reservation of Rights by Authority.
Authority and its Board of Directors, officers, employees, agents,
representatives, contractors and subcontractors, and furnishers of utilities and
other services, shall have the right from time to time, at their own cost and
expense, to do or permit any of the following: (i) to construct and maintain existing
and future utility and other systems; (ii) to enter upon the Concession Locations at
all reasonable times and upon reasonable notice (provided no notice shall be
required during any real or threatened emergency) to inspect any part thereof, and
to make such repairs, replacements or alterations thereto as may, in the opinion of
Authority, be deemed necessary or advisable; (iii) to inspect, install, operate,
maintain, recover and repair the Common Areas; (iv) to have access to all mail
facilities according to the rules and regulations of the United States Post Office; (v)
to approve the weight, size and location of safes, computers and other heavy
articles in or about the Premises and to require all such items and other office
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furniture and equipment to be moved in and out of the Terminal and the Premises
only at such times and in such manner as Authority shall direct and in any event at
Concessionaire’s sole risk and responsibility; (vi) to perform any acts related to the
safety, protection or preservation of the Premises; (vii) to do or permit to be done
any work in or about the Premises or any adjacent or nearby building, land, street
or alley; (viii) to grant to anyone the exclusive right to conduct any business or
render any service in the Terminal that does not operate to exclude Concessionaire
from the use of the Premises as expressly permitted by this Agreement; (ix) to
adopt, amend, modify, rescind or suspend any of the Rules and Regulations of
Authority in effect from time to time and to adopt such additional Rules and
Regulations as Authority, in Authority’s discretion, shall determine to be desirable
for the safe, economical and efficient operation of the Premises; (x) to exercise all
other rights reserved by Authority pursuant to the provisions of this Agreement;
and (xi) to construct or install over, in, under or through the Premises new lines,
pipes, mains, wires, conduits and equipment; provided, however, that in each case
in the exercise of any such rights, Authority shall not unreasonably interfere with
the use and occupancy of the Premises by Concessionaire or the Concession
Operators to extent reasonably practicable under the circumstances.
ARTICLE XII
SMOKING REGULATIONS
Section 12.1
Smoking Regulations.
Authority maintains a no smoking policy for the Terminal. Areas in which
smoking or carrying lighted tobacco products is permitted shall be prominently
marked. Concession Locations permitted to have smoking must provide adequate
ventilation as specified in Section 10.6 hereof.
ARTICLE XIII
BOOKS, RECORDS, RECORDKEEPING AND REPORTS
Section 13.1
General Requirements.
Concessionaire shall maintain, or cause to be maintained (including, without
limitation, requiring each Concession Operator to maintain), for a period of five (5)
years, or, in the event of a claim by Authority, until such claim shall have been fully
resolved, separate and accurate daily records of Gross Receipts derived from the
Concession Program, in accordance with GAAP, showing in detail all business done
or transacted in, on, about or from the Premises and pertaining to the Concession
Program. Concessionaire also shall maintain, and cause to be maintained by
Concession Operators, separate and accurate records with respect to the
construction of Capital Improvements and Refurbishments in the Concession
Locations in accordance with GAAP. Amounts expended shall be reported in the
annual audited financial statements of Concessionaire. Concessionaire shall enter,
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and shall cause the Concession Operators to enter, all receipts arising from such
business in regular books or electronic records of account, and all entries in any
such records or books shall be made at or about the time such transactions occur.
In addition, Concessionaire shall prepare monthly, quarterly and annual reports of
Gross Receipts derived from the Concession Program and separately listing Gross
Receipts by Concession Operator, Concession Location and type of Concession
Operations, using a form and method as directed by Authority, which reports shall
be simultaneously delivered to Authority. Annually, within ninety (90) days after
the end of each year of the Interim Phase and each Lease Year, Concessionaire
shall furnish Authority with audited statements of Gross Receipts derived from the
Concession Program certified to by an independent public accounting firm. Upon
Authority’s written request, Concessionaire shall make available, and shall cause all
Concession Operators to make available, within seven (7) days after a request
therefor, to Authority or its authorized representative(s) any and all reports, books,
records and accounts, including, without limitation, electronic data, pertaining to
the Concession Program necessary to conduct an audit of the Concession
Operations of Concessionaire and Concession Operators. Concessionaire further
agrees to allow the auditor(s) access to such records during normal business hours
and to allow interviews of any employees or others who might reasonably have
information related to such records. In the event that such books and records are
not made available in the Birmingham MSA, Concessionaire shall reimburse
Authority for reasonable travel, lodging and meal expenses to examine them at the
location(s) where such books and records are available. The intent and purpose of
this Section 13.1 is to require Concessionaire to keep and maintain, and to cause
the Concession Operators to keep and maintain, books and records that will timely
enable Authority to clearly and accurately ascertain, determine and audit, if so
desired, the amount of Gross Receipts derived from the Concession Program. The
form and method of Concessionaire’s reporting of Gross Receipts shall be adequate
to provide a control and test check of all Gross Receipts derived from the
Concession Program. In the event records and reports are not maintained in a form
that will permit an expeditious audit, Concessionaire may be assessed charges
representing costs associated with extraordinary audit time and effort needed to
complete the review. If any such examination, inspection or audit of
Concessionaire’s books and records by Authority discloses any underpayment by
Concessionaire in excess of two percent (2%) of the total Rent due, Concessionaire
shall pay Authority the amount of such underpayment with interest within no more
than thirty (30) days after such disclosure. If the discrepancy is a result of
Concessionaire’s negligence, intentional act or fraud, Concessionaire also shall
reimburse Authority for all reasonable and actual costs incurred in the conduct of
such examination, inspection or audit (including, without limitation, reasonable
attorneys’ fees and litigation expenses).
Section 13.2
Premises Transactions.
By the fifth (5th) day of each month during the Interim and Operational
Phases, Concessionaire shall provide weekly Point of Sale Data for all Concession
Locations at the request of Authority. Concessionaire shall cause each Concession
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Operator to provide an electronic point of sale terminal in its Concession Location in
order to provide an historical record of all transactions that occur in such
Concession Location for accounting and auditing purposes. It is not the Authority’s
responsibility to provide the POS terminal or be financially responsible for its
use/performance during the term of this agreement.
Section 13.3
Minimum Features of Point of Sale Terminals.
In order to provide an accurate record of concessions transactions and to
provide a high level of service to customers, all cash registers or other point of sale
terminals used in Concession Locations must have, as a minimum, the features
listed below:
(a)
A reasonable number of segregated category addresses to allow for
analysis of sales trends and sales by types of products;
(b)
An input device consisting of a keyboard, scanner or both;
(c)
A patron fee display of sufficient size and legibility to be readily
observed by the patron during the processing of a transaction;
(d)
The capability (i) to record transactions by sequential control number
to the audit tape or computer files, (ii) to print a transaction history to
tape or file by hour (time of day), day, month and year, and (iii) to
print a customer receipt showing the amount due, amount tendered
and the change due to the customer together with the time and date,
as well as the printed customer service number and website address
for the applicable Concession Operator; and
(e)
Unless otherwise approved by Authority prior to the opening of a
business within a Concession Location, the capability to accept at least
three major credit cards and, wherever commercially reasonable, to
provide a so-called “swipe and go” credit card service to customers.
Section 13.4
Statistics Report.
Authority has the right at any time to request that Concessionaire make
available to Authority Point of Sale Data for a one (1) month period occurring within
the most recent three (3) months prior to the date of the request, including,
without limitation, daily, day part and product category totals for weekly sales,
average transaction values, average number of items sold per transaction per
Concession Location and the total number of transactions per Concession Location.
Unless otherwise approved in writing by Authority, such data shall be provided to
Authority within twenty (20) days of its request therefor.
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Section 13.5
Sales Reports.
Concessionaire shall require each Concession Location to provide monthly
sales data to the Authority.
ARTICLE XIV
TAXES AND ASSESSMENTS
Section 14.1
Payment of Taxes and Assessments.
Concessionaire hereby agrees to pay all Taxes and assessments applicable to
or resulting from the Concession Operations on a timely basis. Authority shall not
be responsible for the payment of any Taxes or assessments arising in connection
with the Concession Program. Concessionaire agrees not to permit or suffer any
liens to be imposed upon the Terminal or any part thereof as a result of the
Concession Operations, and, in the event that any such lien is filed, Concessionaire
will cause such lien to be discharged of record within fifteen (15) days after the
filing thereof.
ARTICLE XV
INSURANCE
Section 15.1
CGL Coverage.
Concessionaire shall obtain and maintain continuously in effect at all times
during the Term, at its sole cost and expense, commercial general liability
insurance coverage (the “CGL Coverage”), with coverage limits of not less than One
Million and No/100 Dollars ($1,000,000.00) per occurrence and Three Million and
No/100 Dollars ($3,000,000.00) in aggregate, that insures against claims,
damages, losses and liabilities arising from bodily injury, death and/or property
damage, including any such claims, damages, losses or liabilities arising from or
relating to Concession Operations or the presence of Concessionaire and Concession
Operators at the Airport. The aggregate deductible amount under the insurance
policy or policies providing the CGL Coverage shall not exceed Two Hundred Fifty
Thousand and No/100 Dollars ($250,000.00) per occurrence. Each insurance policy
providing the CGL Coverage shall name Authority and its commissioners, officers
and employees as additional insureds thereunder and shall provide that such
insurance policy will be considered primary insurance as to any other valid and
collectible insurance or self-insured retention Authority may possess or retain. Any
insurance coverages maintained by Authority shall be considered excess insurance
only. Each insurance policy providing the CGL Coverage shall provide contractual
liability coverage under which the issuing insurance company agrees to insure (i)
Concessionaire’s obligations under Sections 16.1 and 16.3 hereof and (ii) any other
liability that Concessionaire has under this Agreement for which such insurance
policy would otherwise provide coverage. Each insurance company issuing an
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insurance policy providing the CGL Coverage shall be (A) admitted to do business in
the State of Alabama and rated not less than the Minimum Rating or (B) otherwise
approved by the Chief Financial Officer of Authority. Such approval may be denied
or withheld based upon an insurance company’s rating by the Rating Service or
other indications of financial inadequacy, as determined in the sole discretion of the
Chief Financial Officer of Authority.
Section 15.2
PC Coverage.
Concessionaire shall obtain and maintain continuously in effect at all times
during the Term, at its sole cost and expense, property insurance coverage (the “PC
Coverage”) with respect to the Capital Improvements and the Refurbishments for
one hundred percent (100%) of the insurable replacement value of thereof, with no
co-insurance penalty, that provides (i) special form property insurance at least as
broad as that provided by form CP 10 30 (© ISO Properties, Inc.), together with
builder’s risk (with respect to the construction or alteration of or addition to a
Concession Location during the Term) with any deductible in excess of Ten
Thousand and No/100 Dollars ($10,000.00) to be approved by Authority, and (ii)
ordinance and law coverage. Each insurance policy providing the PC Coverage shall
name Authority as a co-loss payee and shall provide that such insurance policy shall
be considered primary insurance as to any other valid and collectible insurance or
self-insured retention Authority may possess or retain. Any insurance coverages
maintained by Authority shall be considered excess insurance only. Each insurance
company issuing an insurance policy providing the PC Coverage shall be (A)
admitted to do business in the State of Alabama and rated not less than the
Minimum Rating or (B) otherwise approved by the Chief Financial Officer of
Authority. Such approval may be denied or withheld based upon an insurance
company's rating by the Rating Service or other indications of financial inadequacy,
as determined in the sole discretion of the Chief Financial Officer of Authority.
Section 15.3
Auto Coverage.
Concessionaire shall obtain and maintain continuously in effect at all times
during the Term, at its sole cost and expense, automobile liability insurance
coverage (the “Auto Coverage”), with a coverage limit of not less than One Million
and No/100 Dollars ($1,000,000.00) per occurrence, that insures against claims,
damages, losses and liabilities arising from automobile related bodily injury, death
and/or property damage, including any such claims, damages, losses or liabilities
arising from or relating to Concession Operations or the presence of Concessionaire
and Concession Operators at the Airport. The aggregate deductible amount under
the insurance policy or policies providing the Auto Coverage shall not exceed Two
Hundred Fifty Thousand and No/100 Dollars ($250,000.00) per occurrence. Each
insurance policy providing the Auto Coverage shall name Authority and its
commissioners, officers and employees as additional insureds thereunder and shall
provide that such insurance policy will be considered primary insurance as to any
other valid and collectible insurance or self-insured retention Authority may possess
or retain. Any insurance coverages maintained by Authority shall be considered
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excess insurance only. Each insurance policy providing the Auto Coverage shall
provide contractual liability coverage under which the issuing insurance company
agrees to insure (i) Concessionaire’s obligations under Section 16.1 hereof and (ii)
any other liability that Concessionaire has under this Agreement for which such
insurance policy would otherwise provide coverage. Each insurance company
issuing an insurance policy providing the Auto Coverage shall be (A) admitted to do
business in the State of Alabama and rated not less than the Minimum Rating or (B)
otherwise approved by the Chief Financial Officer of Authority. Such approval may
be denied or withheld based upon an insurance company’s rating by the Rating
Service or other indications of financial inadequacy, as determined in the sole
discretion of the Chief Financial Officer of Authority.
Section 15.4
WC Coverage.
Concessionaire shall obtain and maintain, and shall cause each Concession
Operator to obtain and maintain, continuously in effect at all times during the Term,
at its sole cost and expense, worker’s compensation insurance coverage (the “WC
Coverage”) in accordance with statutory requirements and providing employer’s
liability coverage with limits of not less than One Hundred Thousand and No/100
Dollars ($100,000.00) for bodily injury by accident, One Hundred Thousand and
No/100 Dollars ($100,000.00) for bodily injury by disease, and Five Hundred
Thousand and No/100 Dollars ($500,000.00) policy limit for disease. Each
insurance company issuing an insurance policy providing the WC Coverage shall be
(A) admitted to do business in the State of Alabama and rated not less than the
Minimum Rating or (B) otherwise approved by the Chief Financial Officer of
Authority. Such approval may be denied or withheld based upon an insurance
company’s rating by the Rating Service or other indications of financial inadequacy,
as determined in the sole discretion of the Chief Financial Officer of Authority.
Section 15.5
General Requirements.
For purposes of this Agreement, the CGL Coverage, the PC Coverage, the
Auto Coverage and the WC Coverage are collectively referred to as the “Insurance
Coverages”. Concessionaire agrees that each insurance policy providing any of the
Insurance Coverages (A) shall not be altered, modified, cancelled or replaced
without thirty (30) days prior notice from Concessionaire to Authority, (B) shall
provide for a waiver of subrogation by the issuing insurance company as to claims
against Authority and its commissioners, officers and employees, (C) shall provide
that any “other insurance” clause in such insurance policy shall exclude any policies
of insurance maintained by Authority and that such insurance policy shall not be
brought into contribution with any insurance maintained by Authority, and (D) shall
have a term of not less than one year. Authority shall have the right to change the
terms of the Insurance Coverages if such changes are recommended or imposed by
Authority’s insurers, so long as Authority agrees to reimburse Concessionaire for
any increases in insurance premium costs resulting solely from any such change.
Concessionaire shall provide, prior to the commencement of Concessionaire’s
performance under this Agreement, one or more certificates of insurance which
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shall indicate that the Insurance Coverages have been obtained and that the
insurance policy or policies referenced or described in each such certificate of
insurance comply with the requirements of this Agreement. Each such certificate of
insurance shall provide that the insurance company issuing the insurance policy or
policies referenced or described therein shall give to Authority notice of the
cancellation or non-renewal of each such insurance policy not less than thirty (30)
days prior to the effective date of such cancellation or the expiration date of such
insurance policy, as applicable. Upon receipt of a request from Authority,
Concessionaire also agrees to provide to Authority duplicate originals of any or all of
the insurance policies providing the Insurance Coverages. The certificate(s) of
insurance provided by Concessionaire to evidence the WC Coverage shall
specifically certify that the insurance policy or policies which provide the WC
Coverage cover Concessionaire’s or the applicable Concession Operator’s activities
in the State of Alabama. If Concessionaire shall at any time fail to obtain or
maintain any of the Insurance Coverages, Authority may take, but shall not be
obligated to take, all actions necessary to effect or maintain such Insurance
Coverages, and all monies expended by it for that purpose shall be reimbursed to
Authority by Concessionaire upon demand therefor or set-off by Authority against
funds of Concessionaire held by Authority or funds due to Concessionaire.
Concessionaire hereby grants, approves of and consents to such right of set-off for
Authority. If any of the Insurance Coverages is not obtained within a period of time
to be determined solely by Authority, Authority may terminate this Agreement by
providing notice of termination to Concessionaire.
Section 15.6
No Limitation on Liability.
It is expressly understood and agreed that the minimum limits set forth in
the Insurance Coverages shall not limit the liability of Concessionaire for its acts or
omissions as provided in this Agreement.
ARTICLE XVI
INDEMNIFICATION
Section 16.1
Negligent Acts or Omissions.
Concessionaire agrees to defend, indemnify and hold each of the Indemnified
Parties harmless from and against any and all suits, losses, costs, claims, damages,
demands, penalties, fines, settlements, liabilities and expenses (including, without
limitation, reasonable attorneys’ fees, court costs and litigation expenses) claimed
or incurred by reason of any bodily injury, death and/or property damage arising
from any negligent act or omission of Concessionaire or any Concession Operator or
any of their respective officers, contractors, subcontractors, agents, representatives
or employees.
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Section 16.2
Intentional Acts.
Concessionaire agrees to defend, indemnify and hold each of the Indemnified
Parties harmless from and against any and all suits, losses, costs, claims, damages
demands, penalties, fines, settlements, liabilities and expenses (including, without
limitation, reasonable attorneys’ fees, court costs and litigation expenses) claimed
or incurred by reason of any bodily injury, death and/or property damage arising
from any intentional act of Concessionaire or any Concession Operator or any of
their respective officers, contractors, subcontractors, agents, representatives or
employees.
Section 16.3
Placement or Use of Hazardous Materials.
Concessionaire agrees to defend, indemnify and hold each of the Indemnified
Parties harmless from and against any and all suits, losses, costs, claims, damages,
demands, penalties, fines, settlements, liabilities and expenses (including, without
limitation, reasonable attorneys’ fees, court costs and litigation expenses) arising
from any negligent act or omission of Concessionaire or any Concession Operator or
any of their respective officers, contractors, subcontractors, agents, representatives
or employees with respect to any bodily injury, death or property damage with
respect to the use or placement of Hazardous Materials on the Airport premises or
other areas.
Section 16.4
Negligent Acts or Omissions as to Hazardous Materials.
Concessionaire agrees to defend, indemnify and hold each of the Indemnified
Parties harmless from and against any and all suits, losses, costs, claims, damages,
demands, penalties, fines, settlements, liabilities and expenses (including, without
limitation, reasonable attorneys’ fees, court costs and litigation expenses) arising
from any negligent act or omission of Concessionaire or any Concession Operator or
any of their respective officers, contractors, subcontractors, agents, representatives
or employees with respect to (A) any investigation, monitoring, clean-up,
containment, removal, storage or restoration work performed by Authority or a
third party with respect to the use or placement of Hazardous Materials (of
whatever kind or nature, known or unknown) on the Airport premises or any other
areas; (B) any actual, threatened or alleged contamination by Hazardous Materials
on the Airport premises or other areas; (C) the disposal, release or threatened
release of Hazardous Materials on the Airport premises or other areas that is on,
from or affects the soil, air, water, vegetation, buildings, personal property, Persons
or otherwise; or (D) any violation of any applicable Environmental Laws.
Section 16.5
Intentional Acts as to Hazardous Materials.
Concessionaire agrees to defend, indemnify and hold each of the Indemnified
Parties harmless from and against any and all suits, losses, costs, claims, damages,
demands, penalties, fines, settlements, liabilities and expenses (including, without
limitation, reasonable attorneys’ fees, court costs and litigation expenses) arising
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from any intentional act of Concessionaire or any Concession Operator or any of
their respective officers, contractors, subcontractors, agents, representatives or
employees with respect to (A) any investigation, monitoring, clean-up,
containment, removal, storage or restoration work performed by Authority or a
third party with respect to the use or placement of Hazardous Materials (of
whatever kind or nature, known or unknown) on the Airport premises or any other
areas; (B) any actual, threatened or alleged contamination by Hazardous Materials
on the Airport premises or other areas; (C) the disposal, release or threatened
release of Hazardous Materials on the Airport premises or other areas that is on,
from or affects the soil, air, water, vegetation, buildings, personal property, Persons
or otherwise; (D) any bodily injury, death or property damage with respect to the
use or placement of Hazardous Materials on the Airport premises or other areas; or
(E) any violation of any applicable Environmental Laws.
Section 16.6
Operation of Aircraft and Vehicles.
Concessionaire agrees to defend, indemnify and hold each of the Indemnified
Parties harmless from and against any and all suits, losses, costs, claims, damages,
demands, penalties, fines, settlements, liabilities and expenses (including, without
limitation, reasonable attorneys’ fees, court costs and litigation expenses) arising
from any use, non-use or condition in, on or about, or possession, alteration,
repair, operation, maintenance or management of, any aircraft, vehicle, mobile
equipment or other property of Concessionaire or a Concession Operator used or
available for use on Airport premises.
Section 16.7
Representations
Agreement.
and
Warranties;
Violations
of
Concessionaire agrees to defend, indemnify and hold each of the Indemnified
Parties harmless from and against any and all suits, losses, costs, claims, damages,
demands, penalties, fines, settlements, liabilities and expenses (including, without
limitation, reasonable attorneys’ fees, court costs and litigation expenses) arising
from (i) any representation or warranty made herein by Concessionaire or in any
other agreement between Authority and Concessionaire being false or misleading in
any material respect as of the date such representation or warranty was made or
(ii) any violation of, or failure of Concessionaire to comply with, the terms of this
Agreement.
Section 16.8
Failure to Comply with Applicable Laws.
Concessionaire agrees to defend, indemnify and hold each of the Indemnified
Parties harmless from and against any and all suits, losses, costs, claims, damages,
demands, penalties, fines, settlements, liabilities and expenses (including, without
limitation, reasonable attorneys’ fees, court costs and litigation expenses) arising
from any lien, encumbrance or claim arising from the actions of Concessionaire or a
Concession Operator or the failure of Concessionaire or a Concession Operator to
comply with any Applicable Laws.
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Section 16.9
Survival of Article XVI.
It is expressly understood and agreed that Concessionaire’s obligations under
this Article XVI shall survive the expiration or earlier termination of this Agreement.
ARTICLE XVII
RELATIONSHIP OF AUTHORITY AND CONCESSIONAIRE
Section 17.1
Relationship of Authority and Concessionaire.
The relationship of Authority and Concessionaire is that of an independent
contractor. Authority and Concessionaire are not and shall not be considered as
joint venturers, partners or agents of each other, and neither shall have the power
to bind or obligate the other except as set forth in any contract executed by the
party to be bound or obligated. There shall be no liability on the part of Authority to
any person for any debts incurred by Concessionaire or any Concession Operator or
by any business conducted on- or off-Airport in connection with the development or
management of Concession Operations.
ARTICLE XVIII
CONDUCT OF BUSINESS
Section 18.1
Conduct of Business.
Concessionaire and Concession Operators shall have the right to use public
Airport facilities in common with others authorized to do so, subject to compliance
with Applicable Laws.
ARTICLE XIX
FINANCIAL GUARANTEE
Section 19.1
Letter of Credit.
As security for Concessionaire’s full, faithful and prompt performance of and
compliance with all covenants, terms and conditions of this Agreement on the part
of Concessionaire, Concessionaire hereby agrees to deposit with Authority, at all
times from and after the Effective Date, a stand-by, irrevocable letter of credit (the
“Letter of Credit”) for the benefit of Authority, in the form of Exhibit I hereto, in a
stated principal amount that is not less than fifty percent (50%) of the MAG
hereunder for the then current Lease Year (or, for the period prior to the
Commencement Date, in an amount that is not less than the minimum MAG for the
initial full Lease Year), and issued by a national banking association or state
chartered bank subject to examination by federal authority of the United States of
America, of good standing and having a combined capital and surplus aggregating
not less than Five Hundred Million and No/100 Dollars ($500,000,000.00).
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Concessionaire shall provide to Authority, not less than thirty (30) days prior to the
expiration date of such Letter of Credit, a replacement Letter of Credit which meets
the requirements of this Section 19.1. A Letter of Credit shall remain on deposit
with Authority throughout the Term, and, in addition to any and all other remedies
available to it hereunder or otherwise, Authority shall have the right, at its sole
option and at any time, to draw upon the entire stated amount of such Letter of
Credit in the event of a draw thereunder and to hold and apply any proceeds of
such draw in excess of amounts then due to Authority as a cash deposit hereunder.
Concessionaire hereby agrees to the deposit of any such excess proceeds with
Authority. In the event of the application of any of the proceeds of a Letter of Credit
to amounts due to Authority from Concessionaire hereunder, Concessionaire shall,
within two (2) days after such application of all or a portion of such proceeds, cause
a replacement Letter of Credit that meets the requirements of this Section 19.1 to
be issued for the benefit of Authority in the original stated amount of the Letter of
Credit upon which Authority has drawn, as applicable (and, upon receipt of such
replacement Letter of Credit, Authority shall refund to Concessionaire the amount of
any excess proceeds of the prior Letter of Credit then held by Authority). Authority
shall have no obligation to draw upon a Letter of Credit, and neither the existence
of such right nor the holding of a Letter of Credit itself shall cure any default or
breach on the part of Concessionaire under this Agreement. Within thirty (30) days
after the expiration of the Term or the earlier termination thereof and upon request
therefor by Concessionaire, Authority will return the proceeds of any draw under a
Letter of Credit to Concessionaire, less any amounts then due from Concessionaire
to Authority under this Agreement. Concessionaire hereby waives any right to any
interest which may be earned or accrued on the proceeds of a draw under a Letter
of Credit during the Term and agrees that Authority shall have no obligation to hold
excess proceeds of a draw under a Letter of Credit in a segregated account and
Authority may commingle such proceeds with its other funds. A Limited Guaranty
of Lease is also required and found in Exhibit K.
ARTICLE XX
EVENTS OF DEFAULT; REMEDIES
Section 20.1
Events of Default.
The occurrence of any of the events described in this shall be defined as and
shall constitute an “Event of Default” under this Agreement:
(a)
Concessionaire becomes insolvent, or takes the benefit of any present
or future insolvency law, or makes a general assignment for the
benefit of creditors, or files a voluntary petition in bankruptcy or a
petition or answer seeking an arrangement for its reorganization or the
readjustment of its indebtedness under the federal bankruptcy laws or
under any other law or statute of the United States or of any state
thereof, or consents to the appointment of a receiver, trustee or
liquidator of all or substantially all of its property;
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(b)
By order or decree of a court, Concessionaire is adjudged bankrupt or
an order is made approving a petition filed by any of the creditors or
equity owners of Concessionaire seeking its reorganization or the
readjustment of its indebtedness under the federal bankruptcy laws or
under any other law or statute of the United States or of any state
thereof;
(c)
A petition or action under any part of the federal bankruptcy laws or
under any other law or statute of the United States or of any state
thereof is filed against Concessionaire and such petition or action
against Concessionaire is not dismissed within sixty (60) days after the
filing thereof;
(d)
By or pursuant to or under authority of any legislative act, resolution
or rule, or any order or decree of any court or governmental board,
agency or officer having jurisdiction, a receiver, trustee or liquidator
takes possession or control of all or substantially all of the property of
Concessionaire and such possession or control shall continue in effect
for a period of fifteen (15) days;
(e)
Any materialman, construction, mechanic or other voluntary lien,
judgment, attachment or encumbrance is filed against the Premises or
any portion thereof as a result of any act or omission of Concessionaire
or any Concession Operator and is not removed within fifteen (15)
days after the filing thereof;
(f)
Concessionaire
abandons,
deserts,
performance of its operations and
Agreement;
(g)
Concession Operations are abandoned, deserted, vacated or
discontinued in any of the Concession Locations (other than permitted
under this Agreement) for a period of forty-eight (48) hours without
the prior consent of Authority;
(h)
Concessionaire assigns, transfers or encumbers this Agreement or any
interest herein, without the prior consent of Authority;
(i)
Concessionaire fails duly and punctually to pay any portion of the Rent
when due or to make any other payment required hereunder when due
to Authority;
(j)
Concessionaire fails to comply with the Concessionaire Insurance
Requirements;
(k)
Concessionaire fails to maintain, or to cause the Concession Operators
to maintain, Concession Operations in the manner required under this
Agreement, as determined in the reasonable discretion of Authority,
vacates
services
or
discontinues
required by this
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and such failure continues for a period of ten (10) days after written
notice from Authority to Concessionaire of such failure;
(l)
Concessionaire conducts business activities at the Airport, other than
those allowed under this Agreement, that have not been approved in
writing by Authority;
(m)
Concessionaire fails to implement or to maintain, or to cause the
Concession Operators to implement and maintain, Reasonable Pricing,
and such failure continues for a period of ten (10) days after written
notice of from Authority to Concessionaire of such failure,
(n)
Concessionaire fails to demonstrate a good faith effort to achieve and
maintain the level of Authority-certified DBE participation submitted in
its Proposal throughout the Term, as required under Section 7.2
hereof;
(o)
Independent certified public accountants retained by Authority
determine that Concessionaire’s failure to maintain a proper internal
control structure has resulted in an audit adjustment to the amount
due to Authority of two percent (2%) or more on a monthly basis, or
Concessionaire has engaged in fraudulent practices regardless of the
amount of any audit adjustment;
(p)
There is a finding by Authority that there was a material misstatement
or omission made by Concessionaire in its Proposal upon which
Authority relied in awarding this Agreement; or Concessionaire fails to
comply with each and every promise, covenant, condition and
agreement set forth in this Agreement on its part to be kept,
performed or observed (other than the promises, covenants,
conditions and agreements otherwise addressed by specific provisions
of this Section 20.1), and such noncompliance continues for a period
of ten (10) days after written notice from Authority to Concessionaire
of such noncompliance; provided, however, that if correction of such
noncompliance (i) does not involve the payment of money, (ii)
requires activity over a period of time and (iii) Concessionaire
promptly commences to cure such noncompliance, to the satisfaction
of Authority, within such ten (10) day period, then such noncompliance
shall not constitute an Event of Default hereunder so long as
Concessionaire diligently pursues the cure of such noncompliance as
determined by Authority.
Section 20.2
Remedies.
Upon the occurrence of an Event of Default, Authority may exercise any and
all rights and remedies permitted under law or equity, including, without limitation,
any one or more of the following:
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(a)
Authority may, at its option, declare all installments of Rent payable
under this Agreement for the remainder of the Term to be immediately
due and payable, whereupon the same shall become immediately due
and payable;
(b)
Authority may re-enter and take possession of the Premises and
sublease all or any portion(s) of the Premises for the account of
Concessionaire, and Concessionaire shall remain liable for the
difference between the Rent and other amounts payable by
Concessionaire hereunder and the rent and other amounts actually
paid by any such subtenant(s);
(c)
Authority, as Concessionaire’s agent, without terminating this
Agreement, may enter upon and operate the Premises and, in this
connection, Concessionaire authorizes Authority upon such entry to
take over and assume the management, operation and maintenance of
the Premises for the account of Concessionaire, and Concessionaire
shall remain liable for all Rent and other amounts payable by
Concessionaire hereunder;
(d)
Authority may terminate this Agreement and exclude Concessionaire
from the Premises, and Concessionaire shall remain liable for all Rent
and other amounts payable by Concessionaire hereunder;
(e)
Authority may take whatever action at law or in equity may appear
necessary or desirable to collect the Rent and any other amounts then
due and thereafter to become due hereunder or to enforce
performance and observance of any obligation, agreement or covenant
of Concessionaire under this Agreement and to recover any or all
damages to Authority for Concessionaire’s violation or breach of this
Agreement, including, without limitation, attorneys’ fees, leasing
commissions and all other costs incurred by Authority in re-leasing or
subleasing the Premises or any part thereof to one or more other
tenants;
(f)
No termination of this Agreement prior to the last day of the Term, by
lapse of time or otherwise, shall affect Concessionaire’s obligation to
pay, and Authority’s right to collect, the entire Rent and any other
amounts due under this Agreement; and
(g)
In the event Authority elects to terminate this Agreement as
hereinabove provided, Authority may, in addition to any other
remedies it may have, recover from Concessionaire all damages
Authority may incur by reason of such Event of Default, including,
without limitation, the cost of recovering the Premises, attorneys’ fees
and the value, at the time of such termination, of the excess, if any, of
the amount of Rent for the remainder of the Term due from
Concessionaire over the then estimated rent and other amounts for
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the remainder of the Term that Authority expects to receive from one
or more replacement tenants, all of which amounts shall be
immediately due and payable from Concessionaire to Authority. The
rights and remedies of Authority provided under this Section 20.2 shall
not be exclusive and are in addition to any other rights and remedies
which Authority may have at law or in equity or under this Agreement.
Section 20.3
No Waiver.
No waiver by Authority at any time of any of the terms, conditions,
covenants or agreements herein shall be deemed or taken as a waiver at any time
thereafter of the same or any other term, condition, covenant or agreement herein
contained, nor of the strict and prompt performance thereof. No delay, failure or
omission of Authority to take or to exercise any right, power, privilege or option
arising upon any Event of Default, or subsequent acceptance of any Rent, shall
impair any such right, power, privilege or option or be construed to be a waiver of
any such Event of Default or a relinquishment thereof or acquiescence therein; and
no notice by Authority shall be required to restore or revive any option, right,
power, remedy or privilege after waiver by Authority of an Event of Default in one
or more instances.
Section 20.4
Termination by Concessionaire.
Concessionaire shall have the right to terminate this Agreement in its
entirety upon the occurrence of any of the following:
(a)
The destruction of all or a material portion of the Airport facilities that
has a significant impact on the volume of passengers using the
Airport; or
(b)
The occupation of the Airport or a substantial part thereof by any
Governmental Authority (other than Authority) for a period of ninety
(90) consecutive days;
provided, however, that, in the event
Concessionaire elects to terminate this Agreement under the
conditions of this Section 20.4, Authority shall have no obligation to
reimburse Concessionaire or any Concession Operator for any Capital
Improvements or Midterm Renovations.
ARTICLE XXI
DAMAGE OR DESTRUCTION OF PREMISES
Section 21.1
Partial Damage.
If all or any portion of the Premises is partially damaged by fire, explosion,
the elements, act(s) of war or terrorism or other casualty, but the Concession
Locations are not rendered untenantable or inaccessible to passengers, such
damage will be repaired with due diligence by Authority at its own cost and expense
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and there shall be no abatement of payments to Authority; provided, however, that
(i) if the damage is caused by the act or omission of Concessionaire or a Concession
Operator or any of their respective officers, contractors, subcontractors, agents,
representatives or employees, Concessionaire shall be responsible at its expense for
making the necessary repairs and restorations as approved by Authority, and (ii)
Authority shall have no obligation to repair or restore any damage to the Capital
Improvements and Refurbishments of a Concession Operator. Authority shall make
any insurance proceeds of the PC Coverage paid to Authority available to
Concessionaire in a manner reasonably acceptable to Authority for the purpose of
paying the costs of repairing and restoring such Capital Improvements and
Refurbishments. If such insurance proceeds are not sufficient to pay such costs of
repairing or restoring such Capital Improvements and Refurbishments,
Concessionaire shall pay the deficiency. If Concessionaire fails to make the
necessary repairs and restorations in a timely manner as determined by Authority,
then Authority may, at its option, cause such repairs and restorations to be
completed and Concessionaire shall reimburse Authority for the costs and expenses
incurred in such repairs and restorations, plus an administrative fee equal to fifteen
percent (15%) of such costs and expenses.
Section 21.2
Extensive Damage.
If all or any portion of the Premises is damaged by fire, explosion, the
elements, act(s) of war or terrorism, or other casualty, and such damage shall be
so extensive as to render part or all of the Concession Locations untenantable or
inaccessible to passengers, but such damage is capable of being repaired and
restored within one hundred twenty (120) days, such damage shall be repaired and
restored with due diligence by Authority at its own cost and expense and the MAG
for such period shall be reduced in proportion to the portion of the Concession
Locations rendered untenantable or inaccessible, from the time of such damage
until such time as the Premises are fully restored and certified by Authority’s
engineers as ready for occupancy; provided, however, that (i) if the damage is
caused by the act or omission of Concessionaire or a Concession Operator or any of
their respective officers, contractors, subcontractors, agents, representatives or
employees, there shall be no abatement in the MAG and Concessionaire shall be
responsible at its expense for making the necessary repairs and restorations as
approved by Authority, and (ii) Authority shall have no obligation to repair or
restore any damage to the Capital Improvements and Refurbishments of a
Concession Operator. To the extent any Leasehold Mortgagee permits the release of
all or a sufficient portion of the insurance proceeds to Concessionaire, Authority
shall make any insurance proceeds of the PC Coverage paid to Authority available
to Concessionaire in a manner reasonably acceptable to Authority for the purpose
of paying the costs of repairing and restoring such Capital Improvements and
Refurbishments. If such insurance proceeds are not sufficient to pay such costs of
repairing or restoring such Capital Improvements and Refurbishments,
Concessionaire shall pay the deficiency. If Concessionaire fails to make the
necessary repairs and restorations in a timely manner as determined by Authority,
then Authority may, at its option, cause such repairs and restorations to be
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completed and Concessionaire shall reimburse Authority for the costs and expenses
incurred in such repairs and restorations, plus an administrative fee equal to fifteen
percent (15%) of such costs and expenses.
Section 21.3
Complete Destruction.
In the event the Premises are completely destroyed by fire, explosion, the
elements, act(s) of war or terrorism or other casualty or are so damaged that they
are untenantable and cannot be replaced except after more than one hundred
twenty (120) days, Authority shall be under no obligation to repair and restore the
Premises, and the obligation of Concessionaire to pay Periodic Rent shall abate as
of the date of such damage or destruction until such time as the Premises are fully
restored or until Authority provides substitute facilities, reasonably acceptable to
Concessionaire, for use by Concessionaire; provided, however, that (i) if the
damage is caused by the act or omission of Concessionaire or a Concession
Operator or any of their respective officers, contractors, subcontractors, agents,
representatives or employees, there shall be no abatement in Periodic Rent and
Concessionaire shall be responsible at its expense for making the necessary repairs
and restorations as approved by Authority, and (ii) Authority shall have no
obligation to repair or restore any damage to the Capital Improvements and
Refurbishments of a Concession Operator. Authority shall make any insurance
proceeds of the PC Coverage paid to Authority available to Concessionaire in a
manner reasonably acceptable to Authority for the purpose of paying the costs of
repairing and restoring such Capital Improvements and Refurbishments. If such
insurance proceeds are not sufficient to pay such costs of repairing or restoring
such Capital Improvements and Refurbishments, Concessionaire shall pay the
deficiency. If Authority is responsible for the repair and restoration of the Premises
under this Section 21.3 and does not complete such repair and restoration of the
Premises within twelve (12) months after the time of such damage or destruction,
or Authority has not supplied substitute facilities reasonably acceptable to
Concessionaire, Concessionaire may terminate this Agreement in its entirety as of
the date of such damage or destruction. If Concessionaire is responsible for the
repair and restoration of the Premises under this Section 21.3 and does not
complete such repair and restoration of the Premises within twelve (12) months
after the time of such damage or destruction in a timely manner as determined by
Authority, then Authority may, at its option, cause such repairs and restorations to
be completed and Concessionaire shall reimburse Authority for the costs and
expenses incurred in such repairs and restorations, plus an administrative fee equal
to fifteen percent (15%) of such costs and expenses.
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ARTICLE XXII
CONDEMNATION; EMINENT DOMAIN
Section 22.1
Total Taking.
In the event a Total Taking occurs during the Term, then the Term shall
cease and terminate on the date that title vests in the Governmental Authority
pursuant to such Total Taking. All proceeds paid as a result of such Total Taking
shall be the sole property of Authority. Concessionaire shall pay all Rent and other
charges, fees and expenses through the date of such termination and shall
promptly vacate the Premises prior to the date on which title vests in such
Governmental Authority pursuant to such Total Taking.
Section 22.2
Partial Taking.
In the event a Partial Taking occurs during the Term, then this Agreement
shall terminate as to the portion of the Premises so taken but shall continue in full
force and effect as to the remainder of the Premises. In the event of a Partial
Taking, Authority shall, promptly after Authority’s receipt of the net proceeds paid
as a result of such Partial Taking, repair or restore the portion of the Premises not
so taken so that an architectural unit reasonably appropriate for the continued use
and occupancy by Concessionaire is completed; provided, however, that Authority
shall have no obligation to repair or restore any damage to the Capital
Improvements and Refurbishments of a Concession Operator, and Authority shall
make any net proceeds paid as a result of such Partial Taking that are specifically
awarded with respect to Capital Improvements and Refurbishments available to
Concessionaire in a manner reasonably acceptable to Authority for such repair and
restoration of such Capital Improvements and Refurbishments. Concessionaire shall
repair and restore the Capital Improvements and Refurbishments in a Concession
Location affected by such Partial Taking so that an architectural unit reasonably
appropriate for the continued use and occupancy by the Concession Operator
thereof is completed. During the period of repair and restoration, the Periodic Rent
shall be abated proportionately to the extent and during the time in which portions
of the Concession Locations are rendered untenantable. Upon the completion of
such repair and restoration, Periodic Rent for the remainder of the Term shall be
proportionately adjusted so as to reflect the loss of the area of the Concession
Locations so taken.
ARTICLE XXIII
OPERATING RIGHTS
Section 23.1
Operating Rights.
It is the intent of Authority that it shall be able, at its sole option, to obtain
full and free competition in soliciting proposals or bids from other contractors in the
event that Authority chooses to award successor food and/or beverage concession
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contracts with respect to the Terminal. If Authority solicits competitive proposals or
bids for the award of one or more successor food and/or beverage concession
contracts upon the expiration or earlier termination of this Agreement and
subsequently awards one or more such successor concession contracts to a party
other than Concessionaire, Concessionaire agrees (i) to surrender all permits and
licenses to operate food and/or beverage concessions as described in such
successor concession contract to the party to which it is awarded to the extent
permitted by Applicable Laws, and (ii) not to oppose applications for any such
permits or licenses by Authority or by any party to which such successor concession
contract is awarded. Concessionaire acknowledges and agrees that Concessionaire
and Concession Operators shall have no claim or right to any loss of sales or
revenues as a result of the award by Authority of any such successor concession
contract.
Section 24.1
Fines.
ARTICLE XXIV
FINES
Concessionaire acknowledges its obligation to provide the public and air
travelers with the level and quality of service as described herein and its desire to
comply with its obligations under this Agreement. Therefore, Authority has set forth
a series of fines in Exhibit J hereto for various violations of this Agreement. The
parties agree that the fines set forth herein are reasonable, and Concessionaire
agrees to pay Authority such fines in accordance with this Section 24.1 at the rates
or in the specified amounts upon the occurrence of the violations indicated upon the
demand of Authority. Concessionaire further acknowledges and agrees that the
assessment and demand by Authority, and payment by Concessionaire, of any such
fines do not waive, limit or otherwise affect any rights or remedies of Authority as
set forth in this Agreement.
ARTICLE XXV
ENVIRONMENTAL PROTECTION
Section 25.1
Compliance with Environmental Laws.
Concessionaire hereby agrees to comply with the Environmental Laws.
Further, any fines or penalties that may be levied against Authority by the EPA or
any other Governmental Authority arising from or relating to Concessionaire’s
failure to comply with any of the Environmental Laws shall be reimbursed to
Authority by Concessionaire immediately after notice of the amount of such fines or
penalties from Authority. Upon the expiration or earlier termination of the Term,
Concessionaire shall, at Concessionaire’s sole expense, remove or permanently
clean all Hazardous Materials that Concessionaire, a Concession Operator or anyone
for whom Concessionaire or a Concession Operator is responsible, caused to be
situated on, at, in or under any Airport premises. This shall be done in compliance
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with all Applicable Laws and shall include the performance of any necessary cleanup or remedial action. Concessionaire shall provide Authority with copies of all
records related to any Hazardous Materials that are required to be maintained by
any Applicable Laws.
ARTICLE XXVI
OPERATIONAL AUDITS
Section 26.1
Operating Standards.
Concessionaire shall cause all Concession Operators to keep and maintain
their respective Concession Locations in a First Class Manner in compliance with all
Applicable Laws, including, without limitation, applicable health, fire and building
inspection requirements. Concessionaire, through periodic daily walk-through
inspections and meetings with Concession Operators, shall work with Concession
Operators to achieve and maintain compliance with such requirements.
Section 26.2
Performance Audits.
Concessionaire shall conduct formal performance audits for each Concession
Location on a bi-monthly basis to ensure that all of the operational, safety and
customer service requirements for Concession Operations are consistently met and
that patrons of the Airport receive the quality of service required under this
Agreement. Authority reserves the right to participate in such audits at its
discretion. Concessionaire shall submit the form of the evaluation document to be
used in such performance audits to Authority for approval during the PreOccupancy Phase, and Authority shall have a minimum of forty-five (45) days to
review and approve such evaluation document prior to the Interim Phase. The
operating standards to be used for such performance audits shall address product
quality, customer service and cleanliness and maintenance, and such standards
shall be, to the greatest extent possible, objective measures. Concessionaire shall
also establish a means for communicating results of such performance audits to
Concession Operators and for addressing any deficiencies found. Concessionaire will
be subject to fines as specified in Section 24.1 hereof and Exhibit J hereto for
deficiencies in operating standards as disclosed by such performance audits.
Concessionaire shall correct, and shall cause the correction of, any such deficiencies
within the time periods specified in Exhibit J hereto.
ARTICLE XXVII
LEASEHOLD MORTGAGES
Section 27.1
Leasehold Mortgages Not Permitted.
Concessionaire shall have no right (i) to convey, pledge or encumber, by
deed of trust, mortgage or similar instrument, its leasehold interest in and to the
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Premises or any Capital Improvements and Refurbishments constructed or placed
on the Premises by Concessionaire, or (ii) to assign this Agreement as collateral
security for any indebtedness of Concessionaire.
ARTICLE XXVIII
GENERAL PROVISIONS
Section 28.1
Attempts or Payments to Influence.
Concessionaire certifies to the best of its knowledge and belief that:
(a)
No federally or state-appropriated funds have been paid or will be paid
by or on behalf of Concessionaire or a Concession Operator to any
person for influencing or attempting to influence an officer or
employee of any agency of the United States government or a
member, officer or employee of the United States Congress, or an
employee of a member of the United States Congress, in connection
with the awarding of any federal contract, the making of any federal
grant or loan, the entering into of any cooperative agreement, or the
extension, continuation, renewal, amendment or modification of any
federal contract, grant, loan or cooperative agreement;
(b)
If Concessionaire or a Concession Operator has compensated or does
compensate any person for influencing or attempting to influence an
officer or employee of any agency of the United States government, a
member, officer or employee of the United States Congress, or any
employee of a member of the United States Congress, in connection
with any contract, grant, loan or cooperative agreement, then
Concessionaire or such Concession Operator shall complete and submit
to Authority, in accordance with its instructions, Standard Form LLL,
“Disclosure of Lobbying Activities”; and
(c)
Concessionaire shall require that the language of this certification be
included in the award documents for all sub-awards at all tiers
(including subcontracts, sub-grants and contracts under grants, loans
and cooperative agreements) and that all sub-recipients shall certify
and make disclosures in accordance with this Section 28.1.
Section 28.2
Drug-Free Workplace.
Authority operates a drug-free workplace program in compliance with
Alabama Code § 25-5-330 et. seq. (1975) 50-9-101, et. seq. Authority’s drug-free
workplace program is operated in accordance with Authority’s Procedure 2-506, a
copy of which has been provided to Concessionaire. Concessionaire herby agrees to
submit, and to cause each Concession Operator to submit, an affidavit not less than
annually while this Agreement is in effect certifying that Concessionaire or such
Concession Operator, as the case may be, operates a drug-free workplace program
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or other drug or alcohol testing program containing requirements at least as
stringent as those of the program operated by Authority.
Section 28.3
Affirmative Action.
Concessionaire shall undertake, to the extent applicable, an affirmative
action program as required by 14 C.F.R. Part 152, Subpart E, as amended from
time to time, to ensure that no person shall, on the grounds of race, creed, color,
national origin or sex, be excluded from participating in any employment,
contracting or leasing activities covered in 14 C.F.R. Part 152, Subpart E, as
amended from time to time. Concessionaire further assures that (i) no person shall
be excluded, on these grounds, from participating in or receiving the services or
benefits of any program or activity covered by 14 C.F.R. Part 152, Subpart E, as
amended from time to time, and (ii) it will require that its covered organizations
under 14 C.F.R. Part 152, Subpart E, as amended from time to time, and the
Concession Operators provide assurances to Concessionaire that they similarly will
undertake affirmative action programs and that they will require assurances from
their suborganizations, as required by 14 C.F.R. Part 152, Subpart E, as amended
from time to time, to the same effect. Concessionaire agrees to comply with any
affirmative action plan or steps for equal employment opportunity required by 14
C.F.R. Part 152, Subpart E, as amended from time to time, as part of the
affirmative action program, and by any federal, state or local agency or court,
including those resulting from a conciliation agreement, a consent decree, court
order or similar mechanism. Concessionaire agrees that state or local affirmative
action plans will be used in lieu of any affirmative action plan or steps required by
14 C.F.R. Part 152, Subpart E, as amended from time to time, only when they fully
meet the standards set forth in 14 C.F.R. 152.409, as amended from time to time.
Concessionaire agrees to obtain a similar assurance from its covered organizations
and the Concession Operators, and to cause them to require a similar assurance of
their covered suborganizations, as required by 14 C.F.R. Part 152, Subpart E, as
amended from time to time.
Section 28.4
No Discrimination.
Concessionaire hereby agrees as follows:
(a)
Concessionaire will not discriminate against any employee or applicant
for employment because of race, color, religion, sex, national origin,
handicap or creed, and Concessionaire will take affirmative action to
ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion, sex,
national origin, handicap or creed, including, without limitation, action
relating to employment; upgrading, demotion or transfer; recruitment
or recruitment advertising; lay-off or termination; rates of pay or other
forms of compensation; and selection for training, including
apprenticeships;
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(b)
Concessionaire will post in conspicuous places, available to employees
and applicants for employment, notices to be provided setting forth
the provisions of this Section 28.4;
(c)
Concessionaire will, in all solicitations or advertisements for employees
placed by or on behalf of Concessionaire, state that all qualified
applicants will receive consideration for employment without regard to
race, color, religion, sex, national origin, handicap or creed;
(d)
Concessionaire will send to each labor union or representative of
workers with which it has a collective bargaining agreement or other
contract or understanding a notice to be provided advising such labor
unions or workers’ representatives of Concessionaire’s commitments
under this Section 28.4(d) and will post copies of the notice in
conspicuous places available to employees and applicants for
employment;
(e)
Concessionaire will comply with all provisions of Executive Order
11246 of September 24, 1965, and of the rules, regulations and
relevant orders of the United States Secretary of Labor;
(f)
Concessionaire will furnish all information and reports required by
Executive Order 11246 of September 24, 1965, and by the rules,
regulations and orders of the United States Secretary of Labor, or
pursuant thereto, and will permit access to its books, records and
accounts by the administering agency and the United States Secretary
of Labor for purposes of investigation to ascertain compliance with
such rules, regulations and orders;
(g)
In the event of Concessionaire’s noncompliance with the
nondiscrimination requirements of this Agreement, this Agreement
may be immediately canceled, terminated or suspended, in whole or in
part, by Authority by providing notice of termination to Concessionaire,
and Concessionaire may be declared ineligible for further government
contracts or federally assisted construction contracts in accordance
with procedures authorized in Executive Order 11246 of September
24, 1965, and such other sanctions may be imposed and remedies
invoked as provided in Executive Order 11246 of September 24, 1965,
or by rule, regulation or order of the United States Secretary of Labor,
or as otherwise provided by law; and
(h)
Concessionaire will include the provisions of this Section 28.4 in each
Sublease and other agreement establishing a Concession Operator’s
ability to conduct Concession Operations and in each of its
subcontracts or purchase orders unless exempted by rules, regulations
or orders of the United States Secretary of Labor issued pursuant to
Section 204 of Executive Order 11246 of September 24, 1965, so that
such provisions will be binding upon each Sublessee, other Concession
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Operator, subcontractor or vendor. Concessionaire will take such
action with respect to any Sublease, other agreement establishing a
Concession Operator’s ability to conduct Concession Operations,
subcontract or purchase order as the administering agency may direct
as a means of enforcing such provisions, including sanctions for
noncompliance; provided, however, that in the event Concessionaire
becomes involved in or is threatened with litigation by a Sublessee,
other Concession Operator, subcontractor or vendor as a result of such
direction by the administering agency, Concessionaire may request the
United States to enter into such litigation to protect the interests of the
United States.
Section 28.5
Nothing
exclusive right
activity at the
Concessionaire
Agreement.
No Exclusive Right.
herein contained shall be deemed to grant Concessionaire any
or privilege within the Federal Aviation Act, or the conduct of any
Airport, except that, subject to the terms and provisions hereof,
shall have the right to use the Premises under the provisions of this
Section 28.6
Subordination to Other Agreements.
This Agreement is subject and subordinate to the provisions of any
agreement heretofore or hereafter made between Authority and any other
Governmental Authority relative to the operation or maintenance 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 the expenditure of
federal 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.
Section 28.7
Subordination to Authority Encumbrances.
This Agreement and all rights of Concessionaire hereunder shall be subject
and subordinate to any deed of trust or mortgage lien or security interest
encumbering Authority’s interest in the Premises and to any renewal, extension,
modification or consolidation of such deed of trust or mortgage or security
agreement granting such security interest. Concessionaire agrees, at any time, and
from time to time, upon not less than ten (10) days prior notice by Authority, to
execute, acknowledge and deliver to Authority a statement in writing certifying that
this Agreement is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating the
modifications), and the dates to which the Rent and other charges have been paid,
and stating whether, to the best knowledge of Concessionaire, Authority is in
default in the performance of any covenant, agreement, provision or condition
contained in this Agreement and, if so, specifying each such default of which
Concessionaire may have knowledge. Authority and Concessionaire intend that any
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such statement delivered pursuant hereto may be relied upon by any prospective
mortgagee of Authority and any purchaser or tenant of the Premises or the
Terminal and such purchaser’s or tenant’s mortgagee or prospective mortgagee,
and by any prospective assignee and its mortgagee or prospective mortgagee.
Concessionaire also agrees to execute and deliver from time to time, upon not less
than ten (10) days prior notice by Authority, such similar estoppel certificates as a
lender to Authority may require with respect to this Agreement. If Concessionaire
fails or refuses to furnish such certificate within the time provided, it will be
conclusively presumed that this Agreement is in full force and effect in accordance
with its terms and Authority is not in default hereunder.
Section 28.8
No Waiver.
No waiver of default by either party of any of the terms, covenants or
conditions herein to be performed, kept and observed by the other party shall be
construed as, or shall operate as, a waiver of any subsequent default of any of the
terms, covenants or conditions herein contained, to be performed, kept and
observed by the other party.
Section 28.9
Notices, Approvals, Consents, etc.
All notices, approvals, consents, demands, requests and other
communications required or permitted by this Agreement must be in writing to be
effective and (i) personally delivered, (ii) sent by certified United States Mail,
postage prepaid, or (iii) sent by a recognized overnight delivery service that
provides registered and verifiable shipment or airbill tracking and delivery record,
with costs prepaid, to the addresses set forth below:
To Authority
Birmingham Airport Authority
Birmingham-Shuttlesworth International Airport
5900 Airport Highway
Birmingham, Alabama 35212
Attention: Executive Vice President of Finance and
Administration
Telephone: (205) 599-0507
With a copy to:
Birmingham Airport Authority
Birmingham International Airport
5900 Airport Highway
Birmingham, Alabama 35214
Attention: Vice President of Finance
Telephone: (205) 599-0509
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To Concessionaire:
__________________________
__________________________
__________________________
Telephone: (___) ___-_____
The person and place to which notices, approvals, consents, demands, requests and
other communications are to be sent may be changed by a party hereto upon
written notice to the other. A notice, approval, consent, demand, request or other
communication required or permitted hereunder shall be deemed received and
effective (i) on the date it is received by the recipient, or (ii) on the date on which
the signature receipt or refusal to accept delivery is recorded by the delivery
service.
Section 28.10 Consents, Approvals, etc., of Authority.
Whenever any provision of this Agreement requires the consent or approval
of Authority or provides to Authority the right to make a determination or
judgment, Authority shall have the absolute and unconditional right to withhold its
consent or approval, in its sole discretion, and to make such determination or
judgment in its sole discretion on the basis of such factors and considerations as it
shall deem relevant (including, without limitation, self interest), except for those
circumstances, if any, where this Agreement expressly provides that such consent
or approval will not be unreasonably withheld or Authority will make such
determination or judgment reasonably.
Section 28.11 Headings.
The headings of the several articles and sections of this Agreement are
inserted only as a matter of convenience and for reference and in no way define,
limit or describe the scope or intent of any provisions of this Agreement and shall
not be construed to affect in any manner the terms and provisions hereof or the
interpretation or construction thereof.
Section 28.12 Severability.
If one or more clauses, sections or provisions of this Agreement shall be held
to be unlawful, invalid or unenforceable, the parties hereto agree that the material
rights of either party hereto shall not be affected thereby except to the extent of
such holding, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted herefrom.
Section 28.13 Agents for Service of Process.
The parties hereto hereby designate the following as their agents for service
of process and will waive any objection to service of process if served upon its
agent as set forth below:
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Authority:
Birmingham Airport Authority
Birmingham Shuttlesworth International Airport
5900 Airport Highway
Birmingham, Alabama 35214
Attention: Executive Vice President, Finance and Administration
Concessionaire:
__________________________
__________________________
__________________________
Attention: _________________
Section 28.14 Waiver of Anticipated Profits.
Concessionaire hereby waives any claim against Authority and its
commissioners, officers, employees, agents, servants, representatives, contractors,
subcontractors, affiliates, successors and assigns for loss of anticipated profits
caused by any suit or proceedings directly or indirectly attacking the validity of this
Agreement or any part hereof, or by any judgment or award in any suit or
proceeding declaring this Agreement null, void or voidable, or delaying the exercise
of any rights under this Agreement.
Section 28.15 Right of Authority to Develop Airport.
The parties hereto further covenant and agree that Authority reserves the
right to further develop or improve the Airport as it may see fit, regardless of the
desires or views of Concessionaire and without interference or hindrance.
Section 28.16 Incorporation of Legally Required Provisions.
The parties incorporate herein by reference all provisions legally required to
be contained herein by any Governmental Authority (other than Authority).
Section 28.17 Limitation of Authority’s Liability.
Neither Authority nor any commissioner, employee, officer or agent thereof
shall have (i) any personal liability with respect to any of the provisions of this
Agreement, or (ii) any liability for any consequential damages resulting from a
default by Authority hereunder or from the exercise by Authority of any of its
remedies hereunder upon the occurrence of an Event of Default. Concessionaire
further agrees not to initiate or participate in any involuntary bankruptcy,
reorganization, receivership or insolvency proceeding against Authority.
Section 28.18 Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
successors and permitted assigns of the parties hereto.
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Section 28.19 Required Modifications.
In the event that a Governmental Authority requires modifications or changes
to this Agreement as a condition precedent to the granting of funds for the
improvement of the Airport, or otherwise, Concessionaire shall make or agree to
such amendments, modifications, revisions, supplements or deletions of any of the
terms, conditions, or requirements of this Agreement as may be reasonably
required and any expenses resulting from such amendments, modifications,
revisions, supplements or deletions shall be paid by Authority.
Section 28.20 Time is of the Essence.
Time is of the essence in the performance of the terms and conditions of this
Agreement.
Section 28.21 Construction of Agreement.
Words of any gender used in this Agreement shall be deemed to include any
other gender, and words in the singular number shall be deemed to include the
plural, unless the context otherwise requires.
Section 28.22 Understanding of Agreement.
The parties hereto acknowledge that they thoroughly read this Agreement,
including any exhibits or attachments hereto, and have sought and received such
competent advice and counsel as was necessary for them to form a full and
complete understanding of all rights and obligations herein.
Section 28.23 Legal Interest and Other Charges.
Any payment of Rent or any other amount due and payable hereunder that is
not paid on the date it is due shall bear interest until paid at the maximum lawful
rate of interest permitted by Applicable Laws. Notwithstanding any provision of this
Agreement to the contrary, it is the intent of Authority and Concessionaire that
Authority shall not be entitled to receive, collect, reserve or apply, as interest, any
amount in excess of the maximum amount of interest permitted to be charged by
Applicable Laws. In the event this Agreement requires a payment of interest that
exceeds the maximum amount of interest permitted under Applicable Laws, such
interest shall not be received, collected, charged or reserved until such time as that
interest, together with all other interest then payable, falls within the maximum
amount of interest permitted to be charged under Applicable Laws. In the event
Authority receives any such interest in excess of the maximum amount of interest
permitted to be charged under Applicable Laws, the amount that would be
excessive interest shall be deemed a partial prepayment of Rent and treated under
this Agreement as such, or, if this Agreement has been terminated, any remaining
excess funds shall immediately be paid to Concessionaire.
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Section 28.24 Holding Over.
Any holding over by Concessionaire after the expiration or termination of this
Agreement, without the consent of Authority, shall not be deemed to operate as an
extension or renewal of this Agreement, but shall only create a tenancy from month
to month which may be terminated by Authority at any time. If said Holding Over
occurs, Tenant agrees to an increased rental rate of 200% of Rent at time of
expiration or termination of this Agreement.
Section 28.25 Governing Law.
This Agreement shall be governed by and constructed in accordance with the
laws of the State of Alabama.
Section 28.26 Avigation Easement.
Authority hereby reserves from the Premises, for the use and benefit of itself
and its successors and assigns, and the operators, owners and users of Aircraft of
all types and for the public in general, a perpetual easement and right-of-way for
the free and unobstructed flight and passage of Aircraft (“Aircraft” being defined for
the purposes of this Agreement as any contrivance now known or hereafter
invented, used or designed for navigation of or flight in or through the air) by
whomsoever owned or operated, in and through the airspace above, over and
across the surface of the Premises, together with the right to cause in such airspace
such noise, vibration, odors, vapors, particulates, smoke, dust and other effects as
may be inherent in the operation of Aircraft for navigation of or flight or passage in
and through such airspace, and for the use of such airspace by Aircraft for
approaching, landing upon, taking off from, maneuvering about or operating at the
Airport.
This easement is reserved upon and subject to the following terms and
conditions:
(a)
Concessionaire shall not hereafter use, cause or permit to be used, or
suffer use of, the Premises so as: (i) to cause electrical, electronic or
other interference with radio, radar, microwave or other similar means
of communications between the Airport and any Aircraft; (ii) to
adversely affect or impair the ability of operators of Aircraft to
distinguish between regularly installed air navigation lights and visual
aids and other lights serving the Airport; or (iii) to cause glare in the
eyes of operators of Aircraft approaching or departing the Airport, or
to impair visibility in the vicinity of the Airport, or to otherwise
endanger the approaching, landing upon, taking off from, maneuvering
about or operating of Aircraft on, above and about the Airport;
provided, however, that, notwithstanding any contrary provision
contained above, Concessionaire shall be permitted to construct and
maintain such improvements and to utilize all lighting, finishes and
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-84
building materials as shall have been submitted to and approved by
Authority; and
(b)
Concessionaire, for itself and Concession Operators and their
respective assigns, subtenants and legal representatives (collectively,
the “Releasing Parties”), hereby expressly releases and forever
discharges Authority and its Board of Directors, legal representatives,
officers, assigns, associates, employees, agents and all others acting in
concert with Authority, from any and all claims, debts, liabilities,
obligations, costs, expenses, actions or demands, vested or
contingent, known or unknown, whether in tort, contract or otherwise,
that the Releasing Parties may now own or hold, or have any time
heretofore owned or held, or may at any other time own or hold, by
reason of noises, vibration, odors, vapors, particulates, smoke, dust or
other effects as may be inherent in the operation of Aircraft and
caused or created by the flight or passage of Aircraft in or through the
airspace subject to the easement and right-of-way herein reserved;
provided, however, that such operation or use is in compliance with
Applicable Laws.
Section 28.27 Attorneys’ Fees.
If any Rent due and payable under this Agreement is collected by or through
an attorney, Concessionaire shall pay as Additional Rent all attorneys’ fees and
costs. Concessionaire also shall pay all attorneys’ fees incurred by Authority as a
result of any breach or Event of Default by Concessionaire under this Agreement.
[Signatures on following page]
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-85
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the day and date first written
above to be effective as of the Effective Date.
AUTHORITY:
BIRMINGHAM AIRPORT AUTHORITY
By:
Printed Name:
Title:
APPROVED AS TO
FORM AND LEGALITY:
By:
Printed Name: Gaynell Hendricks
Title: Chairwoman
RECOMMENDED:
APPROVED AS TO
FINANCIAL MATTERS:
By:
Printed Name:
Title:
CONCESSIONAIRE:
By:
Printed Name:
Title:
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-86
EXHIBIT A
TERMINAL
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-87
EXHIBIT B
PROPOSAL AND RFP
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-88
EXHIBIT C
CONCESSION LOCATIONS AND FOOD AND BEVERAGE COMMON
SEATING AREAS
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-89
EXHIBIT D
SUPPORT SPACE
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-90
EXHIBIT E
CONCESSION LOCATION DEVELOPMENT CHECKLIST FORM
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-91
EXHIBIT F
CONCESSION LOCATION PRO-FORMA OPERATING STATEMENT
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-92
EXHIBIT G
FORM OF SUBLEASE
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-93
EXHIBIT H
CONCESSION LOCATION SALES REPORT
H-93
Error! Unknown document property name.
F-94
EXHIBIT I
FORM OF LETTER OF CREDIT
STAND-BY, IRREVOCABLE
LETTER OF CREDIT NO. ________
STATED AMOUNT: US $_________
ISSUANCE DATE: _____________
EXPIRY DATE: _____________
BENEFICIARY: Birmingham Airport Authority
5900 Airport Highway
Birmingham, Alabama 35214
APPLICANT:
_____________________
_____________________
_____________________
Ladies and Gentlemen:
____________________________ (the “Issuer”) hereby issues in favor of
Birmingham Airport Authority (the “Beneficiary”), this Stand-by Irrevocable Letter
of Credit No. ______ (the “Credit”), which is available by presentment of one or
more drafts of the Beneficiary drawn at sight on the Issuer in the form of Exhibit A
to this Credit, together with the appropriately completed Certificate as required
herein, in an aggregate stated amount of _________________________________
and No/100 United States Dollars ($____________.00) (the “Stated Amount”).
A draft of the Beneficiary upon this Credit shall be accompanied by an appropriately
completed Certificate of the Beneficiary in the form of Exhibit B to this Credit,
provided, however, that, on and after the date (the “Extension Deadline Date”)
which is fifteen (15) days prior to the Expiry Date set forth above (such date, as it
may be amended from time to time, is referred to as the “Expiry Date”), the draft
of the Beneficiary shall be accompanied by an appropriately completed Certificate of
the Beneficiary in the form of Exhibit C to this Credit (in lieu of a Certificate in the
form of Exhibit B to this Credit). Such draft and Certificate shall be dated the date
of presentation, and presentation thereof shall be made at any time during the
Issuer’s business hours on a Business Day (as defined herein) at:
A draft submitted at or before 1:00 p.m., Central Time, on a Business Day shall be
paid to the Beneficiary (or its designee) on the same Business Day, and a draft
submitted after 1:00 p.m., Central Time, shall be paid to the Beneficiary (or its
designee) on the next succeeding Business Day. The Issuer hereby agrees that a
draft drawn under and in compliance with the terms of this Credit will be duly
honored by the Issuer as provided herein if presented at such office on or before
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-95
the Expiry Date. As used herein, “Business Day” means any day other than (i) a
day on which banks located in Birmingham, Alabama are required or authorized by
law or executive order to remain closed, or (ii) a day on which the New York Stock
Exchange is closed. Except as otherwise expressly stated herein, this Credit is
subject to the Uniform Customs and Practice for Documentary Credits, 1993
Revision, ICC Publication No. 500 (the “Uniform Customs”). This Credit shall be
deemed to be made under the laws of the State of Alabama, and shall, as to
matters not governed by the Uniform Customs, be governed by and construed in
accordance with the laws of the State of Alabama.
ISSUER:
By:
Name:
Title:
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-96
Exhibit A
To Form of Letter of Credit
FORM OF DRAFT
[Date]
To:
The undersigned Beneficiary of Stand-by, Irrevocable Letter of Credit No.
______________
(the
“Credit”)
issued
by
______________________________________,
hereby
draws
____________________________________
United
States
Dollars
($___________) against the Credit.
BIRMINGHAM AIRPORT AUTHORITY
By:
Name:
Title:
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-97
Exhibit B
To Form of Letter of Credit
CERTIFICATE
[Date]
The undersigned, Birmingham Airport Authority (the “Beneficiary”), is the
beneficiary of Stand-by, Irrevocable Letter of Credit No. ______________ (the
“Credit”) issued by . The Beneficiary hereby certifies that
__________________________________ (the “Company”) has failed to pay an
amount as and when such amount was due under the terms of the Master
Concession and Lease Agreement, dated as of ___________________, by and
between the Beneficiary and the Company, as it may have been amended or
modified from time to time.
IN WITNESS WHEREOF, this Certificate has been duly executed on
___________________.
BIRMINGHAM AIRPORT AUTHORITY
By:
Name:
Title:
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-98
Exhibit C
To Form of Letter of Credit
CERTIFICATE
[Date]
The undersigned, Birmingham Airport Authority (the “Beneficiary”), is the
beneficiary of Stand-by, Irrevocable Letter of Credit No. ______________ (the
“Credit”) issued by __________________________________________. The
Beneficiary hereby certifies that the Beneficiary has not received an amendment to
the Credit in a form acceptable to the Beneficiary that extends the Expiry Date for
at least one additional year.
Capitalized terms used and not otherwise defined in this Certificate shall have the
meanings assigned to them in the Credit.
IN WITNESS WHEREOF, this Certificate has been duly executed on
________________.
BIRMINGHAM AIRPORT AUTHORITY
By:
Name:
Title:
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-99
EXHIBIT J
FINES
Violation
Concessionaire’s failure to cause
the recommencement of full
Concession Operations within a
vacated Concession Location within
the time period required [Section
4.2(o)].
Overflowing or malfunctioning
grease trap for a Concession
Location [Section 4.2(r)].
Failure to comply with the
operating requirements of Section
4.5 for a Concession Location.
Failure to open a Concession
Location for full Concession
Operations by the deadline set
forth in any Construction Schedule
submitted to and approved by
Authority for the construction and
installation of Capital
Improvements and/or
Refurbishments for such
Concession Location.
Failure to open a Concession
Location for full Concession
Operations within ninety (90) days
after the Turnover Date for such
Concession Location.
Performance Audit Deficiencies in
Product Quality, Customer Service,
Cleanliness, Hospitality and
Employee Courtesy, or
Maintenance.
Fine
$1,000.00 per day that the
violation exists.
$500.00 for the first violation
during any twelve (12) month
period and $1,000.00 for each
additional violation during such
twelve (12) month period.
$1,000.00 per day that the
violation exists.
$1,000.00 per day that the
violation exists.
$1,000.00 per day that the
violation exists.
$500.00 for the first violation
during any twelve (12) month
period and $1,000.00 for each
additional violation during such
twelve (12) month period.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-100
EXHIBIT K
LIMITED GUARANTY OF MASTER LEASE AND CONCESSION AGREEMENT
THIS LIMITED GUARANTY OF MASTER LEASE AND CONCESSION AGREEMENT
(the “Guaranty”), is executed by ________________________________ in favor
of Birmingham Airport Authority (“Authority”) on this ___ day of __________,
20___.
WHEREAS, the Authority and __________________ (“Concessionaire”)
have or will execute a Master Lease and Concession Agreement (the “Lease
Agreement”) for:
Location:
Airport: Birmingham Shuttlesworth International Airport
WHEREAS, the Authority required as a condition to its execution of said
Lease Agreement that the undersigned (herein referred to as “Guarantor”)
guarantee the full performance of the obligations of Concessionaire under said
Agreement.
WHEREAS, the undersigned is desirous that the Authority enter into said
Lease Agreement with Concessionaire and to guarantee Concessionaire’s obligations
thereunder.
NOW THEREFORE, in consideration of the execution of said Lease
Agreement by Authority, Guarantor hereby unconditionally guarantees the complete
and timely performance of each and all of the terms, covenants and conditions of
said Lease Agreement to be kept and performed by said Concessionaire, including
the payment of all rents and other charges to accrue thereunder.
Guarantor further agrees as follows:
1. That this Guaranty shall continue in favor of Authority notwithstanding
any extension, modifications, or alteration of said Lease Agreement
entered into by and between the parties thereto, or their successors or
assigns, notwithstanding any assignment of said Lease Agreement, with
or without the consent of Authority, and no extension, modification,
alteration or assignment of the Lease Agreement shall in any manner
release or discharge Guarantor and it does hereby consent thereto;
2. This Guaranty will continue unchanged by any bankruptcy, reorganization
or insolvency of concessionaire or any successor or assignee thereof or by
any disaffirmance or abandonment by a trustee to Concessionaire;
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-101
3. Authority, may, without notice, assign this Guaranty in whole or in part,
and no assignment or transfer of the Lease Agreement shall operate to
extinguish or diminish the liability of Guarantor hereunder;
4. The liability of Guarantor under this Guaranty shall be primary and, in any
right of action which shall accrue to Authority under the Lease Agreement,
Authority may, at its option, proceed against the undersigned without
having commenced any action or obtained any judgment against
Concessionaire;
5. Guarantor shall pay Authority’s reasonable attorney fees and all costs and
other expenses incurred in any negotiations, action or proceeding
commenced to enforce this Guaranty;
Concessionaire’s Initials: ________
6. Guarantor hereby waives notice of any demand by Authority as well as
any notice of Concessionaire’s default in the payment of rent or any other
amounts contained or reserved in the Lease Agreement; and,
7. Guarantor hereby consents to personal jurisdiction and venue in the state
and judicial district in which the Premises is located.
The use of the singular herein shall include the plural. The obligation of two
or more parties shall be joint and several. The terms and provisions of the
Guaranty shall be binding upon and in inure to the benefit of the respective heirs,
legal representatives, successor and assigns of the parties herein named.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be
executed as of the effective date of the above mentioned Lease Agreement.
GUARANTOR:
By:
Name:
Date:
Address:
Telephone:
NOTE: If Guarantor is a corporation, its authorized officers must sign on behalf of
the corporation and indicate the capacity in which they are signing. This Guaranty
must be executed by the President or Vice President and the Secretary or Assistant
Secretary, unless the bylaws or a resolution of the Authority of Directors shall
otherwise provide, in which event, the bylaws or a certified copy of the resolution,
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
F-102
as the case may be, shall be attached to this Guaranty. The appropriate corporate
seal should be affixed hereto.
Concessionaire’s Initials: ____________
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Appendix G
Construction Phasing Schedule
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
G-1
Phase I Ticketing Level 12/31/2012
Phase II Ticketing Level 1/1/2014 or 05/1/2014
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
G-2
Phase II Bag Claim 1/1/2014 or 05/1/2014
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Exhibit A
Concessionaire Proposal
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Exhibit B
Tenant Design Guide
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL
AIRPORT
TENANT DESIGN GUIDE,
CONCESSION RFP
DRAFT VERSION
November 2011
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Birmingham-Shuttlesworth International Airport
Tenant Design Guide, Concession RFP
Table of Contents
Page
PART 1
INTRODUCTION ...................................................................
1.1
Introduction ..............................................................
1.2
Objective ..................................................................
1.3
Tenant Conceptual Design Considerations ......................
1.4
Overview of the Process ..............................................
1.5
Terminal Facilities Definition and Description ..................
1
1
1
2
3
4
PART 2
AIRPORT SUPPLIED INFORMATION .........................................
2.1
General.....................................................................
2.2
Airport Supplied Information ........................................
4
4
5
PART 3
TENANT SUBMISSION REQUIREMENTS....................................
3.1
General Conditions .....................................................
3.2
Preliminary Presentation..............................................
3.3
Final Submissions.......................................................
3.4
Completion of Construction – Leased Premises
Requirements ............................................................
3.5
Specialized Requirements ............................................
6
6
6
7
PART 4
CONSTRUCTION PROCEDURES...............................................
4.1
Notice to Proceed .......................................................
4.2
Construction Schedule.................................................
4.3
Public Safety Requirements..........................................
4.4
Safety Programs ........................................................
4.5
Request for Base Building Information ...........................
4.6
Cooperation and Mutual Responsibility of Contractors ......
4.7
Damages During Construction ......................................
4.8
Hoarding ...................................................................
4.9
Quality Control...........................................................
4.10 Substitution of Materials and Equipment ........................
4.11 Changes in the Work...................................................
4.12 Defects – Uncovering Work ..........................................
4.13 Documents and Samples at the Work Site......................
4.14 Shop Drawings, Construction Drawings, Product Data
and Samples ..............................................................
4.15 Access to Premises .....................................................
4.16 Working Hours ...........................................................
4.17 Airport Security..........................................................
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
10
10
11
11
11
11
11
12
12
13
13
14
14
14
14
15
15
16
16
16
Tenant Design Guide
Birmingham-Shuttlesworth International Airport
Tenant Design Guide, Concession RFP
Table of Contents (Cont’d.)
Page
4.18
4.19
4.20
4.21
4.22
4.23
4.24
4.25
4.26
4.27
Garbage Removal .......................................................
Protection of the Property ............................................
Work Done in Public Areas ...........................................
Quiet Enjoyment ........................................................
Drilling or Cutting of Floors, Roofs, Etc. .........................
Parking .....................................................................
Notice of Substantial Completion ..................................
Inspections................................................................
Final Inspection and Acceptance of the Work ..................
Certificate of Substantial Completion .............................
16
17
17
17
17
17
18
18
19
19
PART 5
GENERAL DESIGN CRITERIA ..................................................
5.1
General ....................................................................
5.2
Design Control Area ....................................................
5.3
Wall Systems .............................................................
5.4
Floor Systems ............................................................
5.5
Tenant Ceiling Systems ...............................................
5.6
Lighting Systems........................................................
5.7
Approved Materials .....................................................
5.8
Signage ...................................................................
5.9
Locks........................................................................
19
19
20
20
20
20
21
23
23
24
PART 6
RETAIL DESIGN CRITERIA .....................................................
6.1
Design Approach ........................................................
6.2
Storefronts ................................................................
6.3
Store Tops ................................................................
6.4
Interiors....................................................................
6.5
Electrical Design Criteria..............................................
6.6
Mechanical Design Criteria ...........................................
6.7
Structural Design Criteria ............................................
6.8
Retail Design Guideline Drawings..................................
24
24
26
28
28
30
31
32
33
PART 7
FOOD
7.1
7.2
7.3
7.4
7.5
7.6
54
54
54
55
56
58
59
& BEVERAGE DESIGN CRITERIA ....................................
General.....................................................................
Airside Food Court/Landside Restaurant.........................
Landside/Airside Bar ...................................................
Food Preparation Areas ...............................................
Electrical Design Criteria..............................................
Mechanical Design Criteria ...........................................
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Birmingham-Shuttlesworth International Airport
Tenant Design Guide, Concession RFP
Table of Contents (Cont’d.)
Page
7.7
7.8
Structural Design Criteria ………………………………………..........
Food & Beverage Design Guideline Drawings ..................
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
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62
Tenant Design Guide
1
PART 1 – INTRODUCTION
1.1
Introduction
The Birmingham-Shuttlesworth International Airport Authority (Authority) is
undertaking a rehabilitation and expansion of the airport terminal building.
The design includes a complete rehabilitation of the concessions at the
Birmingham-Shuttlesworth International Airport (Airport).
The new airside retail areas, when completed, will be the primary shopping
area, and will also include a full service food/beverage and retail areas. The
landside area will also include a two (2) food and beverage locations and two
(2) retail locations.
Exhibits 1-1 and 1-2 illustrate the extent of the concession areas. Exhibits 13 to 1-6 illustrate the style and color of these areas.
Strong design control and theming of airport concessions areas where used
has been very successful in increasing both passenger satisfaction and sales.
The objective of theming is to use subtle design elements to:
1.2

impart a sense of place to the Airport, so passengers know that they are
in Birmingham, not Atlanta or Tallahassee; and

differentiate the concessions area - to create a calm, distinctive shopping
area.
Objective
The goal of the Tenant Design Guide is to provide a consistent image, a
uniform level of quality, and clarity of identity for the concessions at the
Airport. The Guide establishes minimum acceptable standards of design and
ongoing visual merchandising for the concessions and provides a standard by
which proposals can be evaluated for all Tenants.
This Tenant Guide encourages the tenants to follow standards equal to the
best professional retail standards, not simply the best airport retail
standards. The guidelines are not rigid, and are open to case by case
interpretation, based on specific circumstances and operator needs.
Each tenants design is critical to the overall program. As such, Tenants are
encouraged to use creativity in developing the design of their stores to
accentuate the dominant theme of their retail concept. This theme should be
reflected in the signage, merchandise displays, and lighting as well. In this
process, the design contributions of the tenant and the City will be
characterized by an artistic distinction not normally found in the mainstream
of today’s commercial architecture.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
2
1.3
Tenant Conceptual Design Considerations
The Birmingham-Shuttlesworth International Airport is the “Front Door” to
Alabama for most air travelers and as such the retail program should greet
the arriving passengers with an immediate sense of where they are. The
Tenant Design Guide is intended to assist the Tenant in conceiving new
design concepts to propose for stores that are themed to incorporate an
Alabama local and regional “Sense of Place.” The airport is interested in not
only promoting the commonly known aspects of Alabama through its retail
program, but also the wide variety of cultural, historical, and recreational
opportunities of which travelers and residents may not be aware. Tenants are
encouraged to research and discover the diverse “Sense of Place” theme
ideas Birmingham and greater Alabama has to offer. To stimulate the
creative process for tenant designs, the following is an unranked and
incomplete catalog of “points of interest” proposers may find helpful in
developing store designs.

Birmingham was founded in 1871 in a special place rich in coal, iron ore,
and limestone, essential ingredients in the manufacturing of steel. By
1890 it became known as the “Magic City” for how quickly it grew up.
Steel manufacturing has been a long time staple industry for the city.

Birmingham commissioned a three story tall iron sculpture of Vulcan, the
god of the forge, to be designed by Giuseppe Moretti, and built by the
Birmingham Steel and Iron Company, as an entry in the 1904 St. Lois
Worlds Fair. It was immensely popular and received the Grand Prize. The
statue stands proudly today overlooking Birmingham in Vulcan Park on
Red Mountain.

Birmingham was a hotbed of civil rights turmoil in the 1960s and 1970s.
It took many years for the city to recover from events of those years. In
1993 the opening of the Birmingham Civil Rights Institute went a long
way towards healing the wounds of the past and bringing a culturally
diverse community together.

Auto Racing and motor sports are very popular in the state. The Talladega
Super Speedway opened its doors in 1969, and has been the location
where many national records have been set and many famous racers
have made there name. NASCAR racing season is a very busy time of
year in Birmingham.

The Barber motor sports Museum and Park is the home of the worlds best
motorcycle collection, displaying
600-1200 vintage and modern
motorcycles at any given time. They also have the largest collection of
Lotus racing cars in the world.

Downtown Birmingham has many fine turn of the century examples of
Architecture including the Alabama theatre, built in 1927 and known as
the showplace of the south, whose two-story boldly lit marquee is a
regional icon.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
1.4
3

Alabama’s Sipsey Wilderness Area, at 25,000 acres is the third largest
national wilderness area east of the Mississippi. Located in the Bankhead
National Forest, Sipsey offers visitors a primitive recreational experience.
Hiking, camping, hunting, fishing, and horseback riding are allowed amid
the numerous streams, lush canyons and bluffs.

Rickwood Caverns in western Blount County contains some of the most
massive and fascinating underground formations in the state.

Birmingham is famous for its beautifully designed golf courses.
Renaissance Ross Bridge Golf resort and Spa has hosted the Regions Golf
Classic each May. It has become one of the most popular venues of the
Senior Tour. Shoal Creak has twice hosted The PGA Championship and
The Old Overton Club at Liberty Park has also hosted PGA events.

Lake Neely Henry is a favorite fishing destination for pro and weekend
fisherman. The fertile waters of this 11,200 acre Coosa River lake has
hosted notable fishing events including the 1992 Wrangler B.A.S.S.
National Championship, the 1996 BASS N’GAL Classic and the 1997 BASS
Masters Alabama Invitational. Other lakes such as Lake Logan martin,
Smith Lake, and Bankhead Reservoir, are other regional favorites for
trophy fishing.
Overview of the Process
The Tenant is required to make a preliminary and final submission indicating
their design intent. The Tenant shall engage the services of a professional
architect and/or interior designer, food service consultant, and mechanical
and electrical engineers, to prepare their respective design and construction
drawings.
The Authority shall review and approve all aspects of tenant improvements,
including preliminary and final storefront and sign design, "exterior"
materials specifications, interior layout and fit-out specifications, and the
promotional displays and signage. Tenants, their designers and contractors
must acquaint themselves thoroughly with the contents of this manual so
that their design and construction can proceed smoothly in a coordinated
fashion.
All questions, comments and submissions relative to Tenant development
work should be addressed to:
Mrs. Mary Mindingall
Deputy Director
Birmingham Shuttlesworth International Airport
Birmingham Airport Authority
5900 Messer Airport Highway
Birmingham, Alabama 35212
Re: Retail Tenant Design Guide
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
4
1.5
Terminal Facilities Definition and Description
This Tenant Design Guide is applicable throughout the Terminal.
PART 2- AIRPORT SUPPLIED INFORMATION
2.1
General
The Tenant Design Criteria are general in nature and do not address every
type of condition or detail individual tenants may encounter in their particular
areas. Tenants are therefore encouraged to develop an on-going review
process during the early design stages with the Authority to determine
specific design criteria and conditions which are acceptable at the Airport.
It is imperative that the tenant develops a full understanding of what the
base building design calls for before any design work is started. The
Authority will provide basic functional systems (i.e. mechanical, electrical,
fire protection, etc.) for the Tenant to connect to within the Tenant's leased
area. If the Tenant needs to tie into the Authority’s systems at a location
beyond the Tenant's leased area, such location shall be as approved by the
Authority and at the expense of the Tenant. All such modifications shall be
designed by the Tenant's Designers at the expense of the Tenant.
Unless noted otherwise, the Tenant shall provide all finishes including, but
not limited to, walls, floors, signage, ceilings, counter shelving, cabinets and
display cases. In addition, the Tenant shall be responsible for connecting
into the Airport’s main smoke exhaust and air conditioning distribution
system and if ductwork needs to be extended beyond the Tenant's lease in
order to properly tie into these systems it shall be the Tenant's responsibility
to provide such connections, at the Tenant’s expense. The Tenant shall
provide any and all ductwork and ductwork extensions and related controls
for air distribution within the lease area, and all lighting, power, fixtures and
wiring, accessories, panels and metering required to bring power from the
main electrical panel to the lease area. In addition, if required for operation
and approved in writing by the Authority, all water piping, and drainage
facilities shall be the responsibility of the Tenant. All utilities will be metered
and monitored by the Authorities Building Automation System (BAS).
Food preparation concessionaires shall provide all cooking equipment and
fixtures and perform all necessary building modifications necessary to meet
all legislative and regulatory requirements.
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2.2
5
Airport Supplied Information
The Authority provided a “Tenant Package” to prospective tenants to
acquaint designers of tenant spaces, design guidelines and criteria and the
engineering systems to which they must interface for their preliminary
submission as follows:

This Tenant Design Guide;

Lease Requirements; and

Floor Plan of Leased Premises.
The Authority does not guarantee the accuracy of the information contained
in the drawings provided. Drawings and specifications may not reflect as
built conditions and it shall be the responsibility of the Tenant and the
Tenant's Consultants to verify current documents to determine actual
conditions that will be encountered during the construction of their facilities.
The Tenant must confirm the actual site conditions and verify all job
dimensions against the lease outline drawings before proceeding to final
working drawings.
All Tenant drawings are to be imperial scaled and
provided to the Authority in hardcopy and electronic format compatible with
AUTOCAD 2010 or most recent version.
Questions and requests for clarification regarding the drawings and
specifications of the Passenger Terminal Building should be directed to the
Authority
by
fax
to
205-599-0546
or
by
email
to
[email protected].
The Tenant is advised that in specific locations identified on the Airport’s
tenant reference drawings, certain fixed base building electrical and
mechanical services passing through the Leased Premises have been
established. The Tenant must accommodate these components with the
design and ensure that appropriate access, as indicated in reference
drawings, is provided.
Upon approval by the Authority of the tenant's preliminary submission, the
Authority will provide to the Tenant additional information for the Tenant's
final submission in the form of the Authority’s Tenant Reference Drawings
containing the following information:
Architectural

floor plan layout of leased premises

building sections (if applicable)
Mechanical Systems

available connections to sewer and vent systems
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
the domestic cold water system

incoming air and cooling (vent duct and chilled water)

Food Court exhaust air system (if applicable)

available connection to gas lines
Electrical Systems

120/208 v, 3 phase, 4 wire metered electrical service from the facility
system with a capacity of 100 watts per square foot for food Court and
restaurant outlets and 30 watts per square foot for other tenants

empty telephone conduit termination

fire detection, protection and alarm system connections

cable TV conduit termination points (except Food Court Tenants)
Additional base building information in the form of working drawings,
addenda and any subsequent bulletins and change notices that may be
issued by the Authority as deemed necessary.
PART 3 – TENANT SUBMISSION REQUIREMENTS
3.1
General Conditions
The Tenant shall provide complete preliminary design drawings, color board,
final construction drawings and specifications for the Leased Premises and
receive the approvals from the Authority prior to commencement of
construction.
The Tenant must engage the services of a professional
designer and/or architect and professional mechanical and electrical
engineers to assist in the preparation of these documents.
3.2
Preliminary Presentation
Unless otherwise waived or modified by the Authority, the Tenant must file a
preliminary presentation at the date required in the Request for Proposal
documents. The purpose is to provide the Airport's design review team with
an opportunity to comment on the design concept at an early stage so that
the team's requirements can be incorporated into the Tenant's final
construction drawings. The Preliminary Design will consist of prints of each
of the following. The number of prints required is the same as the number of
copies of the proposals required in the RFP document:

storefront plan or food counter elevation and section (1:50 scale);

floor plan, furnishings plan and reflected ceiling plan (1:50 scale);

storefront colour rendering or photograph of typical tenant storefront,
including proposed signage;
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
material sample board keyed to the drawings;

confirmation from the Tenant’s Consultant the floor loading will comply
with building standards;

proposed material and finish schedule with samples including furnishings;

electrical and mechanical load summary; and

Additional information required in section II-J-2 of the RFP document.
The Authority will review the preliminary submissions and will note its
concerns as to how the Tenant's proposal affects the Lease Agreement, the
neighboring tenants and the Tenant's Designer's interpretation of the Design
Criteria. The Authority will use its best efforts to finalize this review within
five working days from receipt of drawings and will advise the Tenant in
writing on issues of non-compliance. Drawings will be returned to the Tenant
marked as follows:
3.3

Preliminary
drawings.
Acceptance
-
Tenant
may
proceed
to
construction

Preliminary Acceptance as Modified - Tenant may proceed to
construction drawings but must incorporate indicated changes into final
documents.

Not Accepted Resubmit - Tenant to review the Authority’s comments
and resubmit modified design.
Final Submissions
Upon receipt by the Tenant of the Authority’s Preliminary Approval, or
delivery of notice of rejection specifying the items requiring correction or
alteration, the Tenant will have thirty calendar days to submit complete
drawings and specifications, amended as requested.
The Tenant shall submit to the Authority five sets of prints and one set of
sepias and computer disks each of completed Architectural and Engineering
Drawings and Specifications for the finishing of the Leases Premises. These
submissions shall be prepared by qualified designers and/ or engineers,
utilizing the following good engineering practices and conforming to the
Design Criteria Manual and the provisions of the following architectural and
engineering requirements:
Architectural Drawings & Specification Requirements

Drawings are to be of a standard sheet size.

Floor plans and reflected ceiling plan. Scale 1:50.

Interior layout and design concept including merchandising layout.
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
Dimensions from lease lines and center lines of demising partitions floor
materials.

Storefront elevations and sections of food and bar counter. Scale 1:20.

Storefront, food counters and bar details. Scale 1:5.

Interior elevations and details sufficient for construction.

Interior Finish Schedule.

Storefront, including emergency exit(s).

Signage and canopy elevations and sections, including letter style and
size, colors, materials, methods of illumination, color of illumination,
wattage, mounting details, transformer location and access.

Specifications and identification of materials incorporated in the Tenant's
work.

The submission shall include a “sample board” illustrating proposed finish
materials and colors, such as paint samples, floor and wall covering
samples, illustrations of the proposed lighting, etc. firmly affixed to
illustration boards and labelled.

Furnishings plan, specifications, material and color selections, including
samples.

Specifications, if not on drawings, must be submitted on 8 1/2 X 11,
paper, cerlox bound with protective transparent covers, 5 sets required.

Any other special facilities or installations in respect of the Tenant's Work,
or which affect the Airport’s facilities such as vaults and kitchen
equipment. Drawings must indicate weight of heavy equipment (such as
safes), outlet mounting height, refrigeration equipment, show cases, etc.

A dimensional location plan of all roof openings, required for any Tenant
roof mounted equipment.

The Tenant must provide details of architectural hoarding including dust
and sound control measures.

All drawings to be sealed by a registered Architect and/ or Interior
Designer.
Engineering Drawings & Specification Requirements

Underfloor electrical or plumbing floor plans (if any).

A dimensioned location plan of all floor openings, if required.

Electrical Drawings:
 including total load requirements to enable the Airport’s Engineers to
size the service;
 all plans to scale 1:50;
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 lighting, power and communication layout including panel schedules
and HVAC schedules;
 installation and product specifications either on the drawings or
submitted separately;
 load calculations indicating the total connected load, total demand load
in kilowatts and the area of the space;
 fire alarm connections to the existing fire alarm system;
 emergency battery pack lighting and exit lighting.

Heating, Ventilating and Air Conditioning (H.V.A.C.) and Plumbing
Drawings
 all plans to scale 1:50;
 ductwork and diffuser layout for HVAC and location of room thermostat
and make up air requirement; complete with heat loss and heat gain
calculations and thermostat location;
 Plans or sketches showing location of the equipment which the Tenant
intends to install complete with catalogue sheets, specifications and
sketches of same, showing gas, water and electrical consumption,
horsepower and other requirements necessary to provide direction to
the Authority to enable a review for correct sizing of equipment.
Please note this will apply to all submissions for plumbing, electrical,
heating, ventilating and air conditioning make up air if applicable.

Tenants will provide meters based on Authority specifications.

Weight and location of heavy equipment such as safes, refrigeration
equipment, showcases and masonry facing materials.

All engineering drawings to be sealed by a Professional Engineer.
Standard Drawing Notes
The following notes must be on all drawings submitted for approval:

One set of Tenant approved drawings to be kept on site by the Tenant
and available for checking at all times during construction.

All materials to meet flame spread rating requirements of authorities
having jurisdiction.

Demising walls are not designed to accommodate loading.
must be floor supported.

Align all tile floor control joints with base building floor joints.

Base building floor finish will be provided by the Airport at the expense of
the Tenant.

All work must be scheduled and approved by the Airport so that it does
not interfere with airport operations.

Tenant contractor must obtain electrical and plumbing permits pay for
same and submit a copy to the Airport prior to commencing work.
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
A Construction/ Installation Permit is required from the Airport prior to
any site work commencing. There are no Tenant costs for obtaining this
permit.

No cutting, coring or attachment of inserts to the existing building
elements, or application of adhesives paints or sealants, will be allowed
without prior approval of the Airport. Adequate notice shall be provided
to the Airport to allow for a technical review to be undertaken, prior to the
intended installation.
The Authority will either approve the drawings or mark them disapproved or
approved as noted. Drawings marked disapproved must be changed and
resubmitted for approval. The Authority accepts the project for construction
and all the necessary information is included on the Facility Alteration Permit
(FAP), the permit will be returned to the Tenant along with the approved
construction documents.
The FAP, signed by the Authority Official, is
permission to proceed to construction as long as Codes and Bylaws have
been adhered to. The Tenant should allow three weeks from the date of the
Preliminary Submission and three weeks from the date of the Final
Submission to receive comments back from the Authority.
The Tenant shall post one complete set of construction drawings and sample
board at Tenant's space during construction. Prior to commencing, and
during construction, the Tenant must follow the Terms and Conditions of the
FAP as well as the procedures outlined in Part 4 of this manual.
3.4
3.5
Completion of Construction - Leased Premises Requirements
3.4.1
The Tenant will submit one Maintenance Manual at completion of
project on application for Certificate of Substantial Performance.
Manual shall consist of approved stamped and signed shop drawings,
extended warranties, project name on cover, etc. in a hard cover,
black, vinyl, three ring, loose leaf binder. Separate data in individual
sections with tabs.
3.4.2
The Tenant shall submit one set of project record drawings (“asbuilts”) in the form of sepias and computer disks of each completed
leased premises.
Specialized Requirements
3.5.1
Portions of the project will be on 'airside', or those areas in the
Airport terminal building to which access is restricted for security
reasons. Early application to the Security Office of the Airport for all
parties involved is required. Until unescorted passage is granted, the
Authority will provide security personnel who will escort design and
construction personnel as required at the Tenant’s expense.
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11
It is mandatory that the operations at the Airport and the travelling
public not be adversely affected during the course of this project.
Construction hoarding, around the work areas, dust and sound
control and other related measures will remain in place for the
duration of Tenant construction.
PART 4 – CONSTRUCTION PROCEDURES
4.1
Notice to Proceed
A Facility Alteration Permit (FAP) will be issued by the Authority and the
Tenant shall promptly commence work.
Thereafter, the work shall be
executed at such place or places as the FAP requires and shall be completed
within the time set forth in the Tenant's Agreement.
The following documents must be supplied to the Authority prior to
commencement of construction and are to remain current as Tenant work
proceeds:
4.2

A Record Copy of the "Approved" or "Approved as Noted" construction
contract documents and specifications with all addenda and forms
incorporated; and

Building Permit and other required permits and approvals for construction.
Construction Schedule
The Tenant or his Contractor will provide to the Authority a construction
schedule indicating all general contractor and sub trade milestone events,
(i.e. completion dates and project start/completion dates) for the Authority’s
approval prior to undertaking any construction.
4.3
Public Safety Requirements
Since the Airport will be open to the public during construction, the Tenants
and their contractors must pay particular attention to matters concerning
public safety.
It is the Tenant's responsibility to ensure that their
Contractors employ safety conscious practices and the standards set by
authorities having jurisdiction. Tenants and their Contractors shall comply
with and will adhere to all instructions regarding public safety which may be
issued during the course of construction by the Authority.
4.4
Safety Programs
The Tenant will ensure that the Tenant’s contractors respect all safety
regulations. Tenant contractors must have an Authority approved safety
plan or follow the Airport’s Contractor Safety Plan.
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4.5
Requests for Base Building Information
The Tenant's contractor shall submit any requests for information or
clarification regarding base building construction and systems to the
Authority.
4.6
Cooperation and Mutual Responsibility of Contractors
Since there may be other Airport contractors, subcontractors, subordinate
subcontractors, premises wiring contractors, special system contractors,
airline system contractors, and other tenant finish contractors working within
or adjacent to the work site during the performance of the Tenant's work, the
Tenant must anticipate in its scheduling, procurement and cost estimating
that its Work will be interfered with or delayed from time to time by the acts
or omissions of other contractors. Tenants must be prepared to work with
the Airport and other contractors and subcontractors to the maximum extent
reasonably possible to avoid or mitigate any delay or hindrance of each
other's work.
In addition to construction in adjacent areas during the Tenant Improvement
Work, there may be construction within the Tenant's premises area occurring
at the same time as the Tenant's contractor is constructing and the Tenant's
contractor shall provide access for this construction.
Tenant contractor coordination may require working off-hours and providing
additional temporary lighting and power for such off-hours work at the
Tenant's expense.
The Tenant's contractor shall afford the Authority and separate contractors
reasonable and safe access to and across the Work site and reasonable
opportunity for the introduction and storage of their materials and equipment
and the execution of their work within or adjacent to the Tenant contractor's
work site, and shall connect and coordinate the Tenant contractor's work with
their work as required by the Approved Construction Contract Documents.
The Authority may also require that certain facilities and areas be used
concurrently by the Tenant's contractor and other persons. If any part of the
Tenant contractor's Work depends for proper execution or results upon the
work of the Authority or of any other contractor, or affects the work of
another contractor, the Tenant's contractor shall monitor and keep itself
informed of the progress and details of such work of such other contractor or
the Authority by attendance at job coordination meetings held by the
Authority. The Tenant or its contractor shall promptly report in writing to the
Authority apparent discrepancies, defects in such other work that render it
unavailable, defective or unsuitable for the Tenant's contractor properly
performing the Work. Failure to so promptly report shall constitute an
acceptance of the other work as fit, proper and ready for integration with the
tenant's Work except for latent defects.
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Any costs caused by defective of ill-timed performance shall be borne by the
responsible party.
If the Tenant's contractor, through its acts or omissions, causes loss, damage
or delay to the work or property of any separate contractor, subcontractor, or
subordinate subcontractor, the Tenant's contractor shall, upon due notice
from the Authority, promptly attempt to remedy such loss, damage or delay,
or otherwise settle with such other contractor or subcontractor by agreement
or otherwise.
The Tenant's contractor shall obtain the approval of the Authority and notify
all other affected contractors at least 48 hours before commencing work
which may block access or otherwise cause undue difficulty to occupants or
users of property affected, and shall restore such access to a useable
condition.
If the tenant's contractor requires that utility shut-offs or similar events will
occur during the course of construction, notice shall be given to the Authority
a minimum of 48 hours in advance, and a copy of such notice shall be
provided to any other affected Tenants or contractors.
4.7
Damages During Construction
The Tenant assumes sole responsibility for all damages to the existing
facilities, including but not limited to the premises occupied by others, arising
from the improvements and remodelling work of the Tenant to the
satisfaction of the Authority and its affected tenants and contractors under
the Agreement, and will take immediate steps to replace or repair such
damages.
4.8
Hoarding
Prior to construction, in order to prevent damage to adjacent Leased
Premises and the public area, as well as to ensure proper security to the
Leased Premises, the Tenant may be required to construct lease area
hoarding. All hoarding must be approved by the Authority. Any hoarding
shall be a plywood or gypsum board wall braced by steel studs and be
continuous so as to prevent dust and to control excessive noise entering
adjacent areas. All temporary walls shall be completely painted in a white
color where visible to the public. Where hoarding may be in place for a
longer period, it shall include a vinyl covered fabric finish, rubber core base
board, trim at ceilings and corners, and painted doors and frames complete
with lock set. A professionally printed graphic sign announcing the store
name and opening date shall be placed on the wall (Maximum size 40 sq.
ft.). The FAP shall also be displayed on the hoarding.
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Upon takeover of the premises, the Tenant will be completely responsible for
the security of the premises. The Authority will not assume responsibility for
damages including theft to the Tenant's materials, fixtures or equipment for
any reason whatsoever.
4.9
Quality Control
The Tenant's contractor shall provide a quality construction product. To
establish the level of quality, the Tenant as a minimum shall require its
contractor to use the quality standards as apparent in the existing base
building. This level of quality shall include without limitation the grades of
material, thickness, strengths, any national or international standards that
must be met, any samples that must be submitted, any testing required to
assure quality, any experience required of installers, all fabrication and
installation tolerances and other related quality items.
The Authority shall have the right to inspect all Work, at any time and assure
itself that the minimum quality level required is being provided.
4.10
Substitution of Materials and Equipment
The Tenant may ask for substitution of specified material, equipment or
furnishings with equal or equivalent items only under the following
circumstances:
4.11

The Tenant's contractor provides evidence to the Authority and the
Tenant's Design Consultant which in the Tenant Design Consultant's
opinion, establishes that an item of specified material is not available;

The Tenant's contractor provides evidence which, in the Tenant Design
Consultant's opinion, establishes that the specified item will have an
unreasonable delivery time due to no fault of the Tenant's contractor; or

If the Special Conditions of the Approved Contract Documents allow the
use of equal or equivalent products.
Changes in the Work
All proposed modifications to the approved documents for the Work must be
submitted to the Authority for review. No change order or other contract
modification which materially changes the scope of the Improvements shall
be executed without prior approval of the Airport.
4.12
Defects - Uncovering Work
The Authority may inspect all Tenant Work as the Work progresses. The
purpose of this inspection activity is to attempt to determine on a periodic
basis whether or not the Tenant contractor's Work is adequate to provide the
product expressed in the design intent which the Authority approved in the
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Tenant's final design submittal. Whether or not the Tenant Work is defective
will be determined by comparing it to the Approved Construction Contract
Documents and approved Shop Drawings and Samples and bringing it to the
attention of the Tenant's Design Consultant for determination. Additionally,
should the appearance and performance of any element of the Work fail to
conform to the standards of the trade for such Work, that Work may be
declared defective.
The Tenant or its contractor shall notify the person in charge of tenant
coordination twenty-four hours prior to covering up work so that it may be
reviewed. Any work covered up without first providing such twenty-four hour
advance notice may be required to be removed.
The Tenant's contractor shall provide for the Authority and any party
designated by the Authority all access including, but without limitation,
ladders, access doors, lifts, and ventilation needed to review the quality of
the Work.
4.13
Documents and Samples at the Work Site
The Tenant shall maintain at the Work site on a current basis, one record
copy of all approved drawings, specifications, addenda, change orders and
change directives in good order and marked currently to record all changes
made during construction, and copies of all approved Shop Drawings,
Construction Drawings, Product Data and Samples.
4.14
Shop Drawings, Construction Drawings, Product Data and Samples
The Tenant shall ensure that its contractor prepares, reviews, certifies and
submits to the Authority with reasonable promptness and in such sequence
so as to cause no delay in the Work, any requested Shop Drawings,
Construction Drawings, Product Data and Samples.
The Tenant's contractor shall not be relieved of responsibility for any material
deviation from the requirements of the Approved Construction Contract
Documents by the Authority’s or Tenant's approval of Shop Drawings,
Construction Drawings, Product Data or Samples unless the Tenant's
contractor has specifically informed the Authority in writing of such deviation
at the time of submission and the Tenant and Authority have both given
written approval to the specific deviation.
No portion of the Work for which the Authority requests submission of Shop
Drawings, Construction Drawings, Product Data or Samples shall be
commenced until the requested submittal has been reviewed by the
Authority, and approved by the Tenant's Design Consultant. Approvals by
the Authority or the Tenant's Design Consultant shall not relieve the Tenant's
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contractor of its responsibilities under the Approved Construction Contract
Documents.
4.15
Access to Premises
Access to the Leased Premises for construction personnel and project
materials will be as instructed by the Authority and may vary depending on
the location of the particular area under construction. The Tenant is to
obtain the specific location of the entrance door to be used for the
construction of the Leased Premises.
4.16
Working Hours
Terminal Operations may result in contractors and suppliers being subjected
to restrictions which may be imposed by the Authority regarding the hours of
work, scheduling and coordination of work.
4.17
Airport Security
It will be necessary for all Tenants and construction personnel to comply with
all applicable security regulations in effect at the Airport. Tenants and
construction personnel shall adhere to security requirements such as:

Airport Restricted Area Identification Badge System Policy;

Airport Restricted Area Vehicle I.D. & Registration System Policy;

Airport Vehicle Operators Permit Policy; and

Keys and Lock System Policy.
Documents and information related to the above regulations as well as other
security related requirements will be made available by the Airport Badge
office on demand.
4.18
Garbage Removal
The Tenant and Contractors are required to remove construction debris from
the Lease Premises on a daily basis. In order to facilitate the removal of
garbage and debris from the construction site, the Tenant shall confirm with
the Airport as to the allowable locations for garbage bins. Should it be
necessary for the Airport to remove a Tenant's garbage or debris due to
inaction by the Tenant, the Tenant will be invoiced for the full cost thereof.
Temporary storage of garbage or debris outside the leased premises will not
be permitted.
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4.19
17
Protection of the Property
The Tenant's contractor shall take all reasonable precautions for the safety
of, and shall provide all reasonable protection to prevent damage, injury, or
loss to:
4.20

All the Work and all materials, equipment, systems, fixtures and
furnishings to be incorporated therein, whether in storage on or off the
Work site, under the care, custody or control of the contractor,
subcontractor, subordinate subcontractors of any tier, or suppliers; and

Other property at the Work site or adjacent thereto, including but without
limitation, lawns, walks, pavements, roadways, structures, and utilities
not designated for removal, relocation or replacement in the course of
construction.
Work Done in Public Areas
Temporary scaffolding for the installation of storefronts and signs will be
allowed where necessary. Only scaffolding with rubber tires is permitted. All
materials and equipment deliveries to the Leased Premises where the
materials cross public area floors must be on dollies with rubber tires. All
other construction work must take place within the Leased Premises.
4.21
Quiet Enjoyment
The Tenants and their contractors are responsible for ensuring that during
construction of the Leased Premises the rules and regulations of the Airport
are followed to ensure that other Tenants who are open for business may
have quiet enjoyment of their premises.
4.22
Drilling or Cutting of Floors, Roofs, Etc.
The Tenant and their contractors will not cut holes or openings of any
description in any part of the structure without the prior approval of the
Airport. Work of this type required by the Tenant shall either be performed
by the Airport and charged back to the Tenant, or performed by the Tenant
at the Tenant’s expense.
4.23
Parking
Parking of vehicles by the Tenant's workmen will be confined to those specific
areas set aside for them. Contractor's trailers may not be parked in the
parking lot without prior permission from the Airport
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4.24
Notice of Substantial Completion
When the Tenant's contractor considers that the Work is substantially
complete the Tenant's contractor shall notify the Tenant and the Airport that
the Work is ready for inspection.
4.25
Inspections
The Authority will inspect and test the Tenant’s construction work (hereafter
called the Work).
The Authority may perform any tests and observe the
Tenant contractor's work to determine whether or not designs, materials
used, manufacturing and construction processes and methods applied, and
equipment, furnishings, fixtures, systems and finishes installed satisfy the
requirements of the "Approved" or "Approved as Noted" FAP, approved shop
drawings, product data and sample submittals, and the Tenant contractor's
warranties. The Tenant's contractor shall permit inspectors access and
provide the means of access to the Work as well as whatever access and
means of access is needed to off-site facilities used to store or manufacture
materials, furnishings, fixtures and equipment to be incorporated into the
Work and shall respond to any other reasonable request to further the
inspectors' ability to observe or complete any tests. Such inspections and
tests shall not relieve the Tenant's contractor of any of its obligations under
its owner-contractor agreement.
Inspectors assigned to the Work by the Authority are authorized to reject any
Work, any fixtures, systems, materials, equipment, furnishings or any
component of the Work which is not as required or as specified in the
Approved Construction Contract Documents. Any such rejection will be
communicated by the Authority in writing to the Tenant and the Tenant's
contractor.
After receipt of the Tenant contractor's notice of Substantial Completion of
the Work, the Tenant's Design Consultant, the Tenant, a representative of
the Airport and the Tenant's contractor shall make an inspection of the Work
to determine whether the Work has been completed in accordance with the
Approved Construction Contract Documents and to review the Tenant
contractor's punch list. Normally this inspection will occur within 10 calendar
days. If in the opinion of the Tenant's Design Consultant and the Airport the
Work has not been completed to the required stage, the parties shall cease
the inspection. If, however the Work has been completed to the required
stage, a punch list shall be prepared by the Tenant's contractor which shall
consist of those items listed by the Tenant's contractor to be completed or
corrected as supplemented by those items of work observed and noted by
others during such inspections.
The Tenant’s contractor shall also ensure that electrical inspections are
carried out by the designated electrical safety codes officer, and that all work
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subject to other required permits is also inspected by the appropriate
inspectors.
4.26
Final Inspection and Acceptance of the Work
The Tenant's contractor shall notify the Tenant's Design Consultant and the
Airport in writing when all the punch list items have been completed and
clean-up has been done. The Tenant, the Tenant's Design Consultant and
the Airport Engineer shall then make the final inspection for the purpose of
ascertaining that the Work has been fully completed in accordance with the
requirements of the Approved Construction Contract Documents.
The Tenant shall forward as-built drawings to the Airport within 30 days of
acceptance.
4.27
Certificate of Substantial Completion
When the Authority determines that the Work or designated portion thereof
is complete to its satisfaction, the Tenant will prepare a Certificate of
Substantial Completion of the Work which shall establish the Date of
Substantial completion of the Work and initiate the Warranty Period. The
certificate shall state the responsibilities of the Tenant, the Airport and the
Tenant's contractor for security, maintenance, property insurance premiums,
and damage to the Work, state items still to be completed by the Tenant's
contractor and fix the time within which the Tenant's contractor shall
complete the items listed therein.
PART 5 – GENERAL DESIGN CRITERIA
5.1
General
This part of the manual deals with the general design parameters, which
Tenants are required to observe. In addition, retail stores will comply with
the requirements of Part 6 of this Guide, and Food & Beverage units will
comply with the requirements of Part 7.
Each leased premise is a combination of design control elements within which
the Tenant's designer must operate.
Although the Guide identifies
guidelines, the Authority encourages creativity and will give fair consideration
to all design proposals.
All tenants must accommodate "physically challenged individuals and design
their premises on the basis of “barrier free” design.
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5.2
Design Control Area
To ensure a high standard of presentation by each Tenant, and necessary
continuity of base building design, the Authority has located Design Control
Areas within the Leased Premises. The Design Control Area is the area
within the Leased premises which adjoins the common area of the Terminal
within four feet of the lease line. Within this Design Control Area, the
Authority may control aspects of Tenant's design.
5.3
Wall Systems
5.3.1 Walls will:
5.4
5.5

use metal studs only

wall coverings will be 5/8 inch Type X gypsum board

paint finish, if utilized, will be primer and two coats quality Latex
Floor Systems
5.4.1
The Tenant and their contractor will not cut holes or openings of any
description in any part of the structural floor slab without prior
approval of the Airport. Work of this type required by the Tenant
may be performed by the Authority at the Tenant’s expense.
5.4.2
The levelling screed, floor finish and partitions shall have a maximum
dead load of 100 psf.
5.4.3
The maximum live load shall not exceed 100 psf.
5.4.4
Tenants’ design to allow for potential 1 1/3 inch deflection of building
floor.
Tenant Ceiling Systems
5.5.1
Ceilings within the Tenant premises must be approved by the
landlord. Standard 12 x 12 inch acoustic tile ceiling is not allowed.
5.5.2
Accessible type ceilings shall by provided in all areas where existing
mechanical ducts, conduit raceways, shut-off valves, etc. are located.
5.5.3
Suspended ceiling panels if installed shall meet the following physical
properties:
Surface Burning Characteristics

Flame spread: Maximum of 25, UL Class

Smoke Development: 50 or less
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Sound Transmittance coefficient (STC)

30 minimum
Noise Reduction Coefficient (NRC)

5.5.4
5.6
0.45 minimum
Suspended ceiling support systems if installed shall conform to the
following requirements:

Suspension system shall not be visible from the retail mall area or
adjacent stores.

Suspension systems shall be grid type, either exposed or
concealed, to accept various types of ceiling panels and/or
gypsum wallboard.

System components shall support the ceiling assembly with a
maximum deflection of 1/360 of the span of any component.

Where a suspension system is to be installed in a high moisture
environment, such as a commercial kitchen, use of roll formed
aluminium grid shall be required.

Ceiling systems shall be supported directly from the structure or
may be indirectly supported by a secondary intermediate support
system which will provide stiffness equal to that of the originally
tested elements.
Lighting Systems
5.6.1
A high level of illumination (1,500-2,000 lux) shall be provided within
the design control area. The remainder of the retail area shall be
illuminated to the minimum light level required by code.
5.6.2
Unless otherwise approved, permitted types of interior lighting
include:

ceiling track halogen

incandescent pot lighting

recessed fluorescent

H.I.D. Metal Halide

LED
With the Authority’s approval, on a case by case basis, exposed
fluorescent lighting, colored lighting or exposed flood lighting may be
used.
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5.6.3
Prohibited types of interior lighting include:

moving

neon

strobe (except for fire alarms and barrier-free fixtures)
5.6.4
The installation and use of low voltage MR16 track lighting is
discouraged.
5.6.5
All track lighting, except previously approved decorative track
fixtures, shall be installed out of public view.
5.6.6
All illuminated signs, graphics and incandescent lighting within the
design control area will be on separate time clocks connected to the
Tenant's distribution panel. Hours of operation will be set by the
Authority.
5.6.7
The lighting level within the concessions is very important in helping
to create an open and inviting atmosphere. The actual level of
lighting necessary will vary by unit location and type. However, even
if a specific shop desires "ambient-lighting" to create an atmosphere,
it is important that enough light be provided to ensure that
consumers can pass safely through the area. As a general rule, a
minimum of 500 lux should be provided throughout the shop.
5.6.8
Excessively bright lights waste electricity and become a visual
nuisance both to the consumers and to the overall image of the
concession program. A recommended maximum of 2000 lux is
suggested. Care must be taken to ensure that spotlights do not raise
temperatures in the shop above comfortable levels. All lighting shall
be energy conserving.
5.6.9
Spot lighting of specific displays, as long as the maximum foot candle
output is not exceeded, and the light does not "glare" into other
shops or public walkways, is permitted. However, the number of
spot lights utilized in a single shop may be limited at the Authority’s
discretion.
5.6.10 Uses requiring mood lighting to create a desired atmosphere, such as
restaurants, cafes, bars and other uses must obtain approval of the
design from the Authority.
5.6.11 Only incandescent light may be used within the first 3 feet back from
the front lease line. Fluorescent fixtures without lenses or bare
incandescent or other bare lamp fixtures are not permitted anywhere
in the public area of the store. All fluorescent lighting shall have a
minimum CRJ 80 (color rendering index).
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5.6.12 Where incandescent base lamps are used within the Tenant
premises, they must be fully recessed and shielded. The Authority
reserves the right to adjust such baffles after installation if such
lighting conflicts with airport design.
5.6.13 All fixtures to be of high standard and approved by the Authority.
5.6.14 Exposed raceways, crossovers, conduits, conductors, transformers
and other equipment are not allowed.
5.7
Approved Materials
5.7.1
The following materials may be used (all materials must be noncombustible and fire resistant):

Plastic Laminates: These must be shop applied. No imitation of
natural materials such as wood or stone will be accepted.
Requires specific approval of the Authority.

Natural Materials: Materials allowed include marble, granite,
travertine, solid wood, and natural wood veneers. Woods must
be stained and/or sealed.

Metals: Metals allowed include stainless steel, copper, brass,
bronze and anodized aluminium.

Tile: Tile allowed includes ceramic, quarry and porcelain.

Mirror: Mirror allowed includes clear, coloured and bronze.

Glass: Glass allowed includes tempered or laminated safety
glass - clear, green, mirrored and back painted.

Glass Block: may be permitted.
the Authority.

Carpet: may be permitted with specific approval of the Authority

Fibreglass Reinforced Material: permitted only after specific
approval of the Authority.

Vinyl or Fabric Wall Coverings: these are encouraged in high
traffic areas.
Requires specific approval of
Other special materials may be used if approved by the Authority.
5.8
Signage
5.8.1
All Tenant storefront entrance and store identification signage is
subject to the Authority’s approval.
Imaginative designs which
depart from traditional methods will be encouraged. Signs should
conform to the following guidelines:
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
Signs are to be compatible and complementary to adjacent and
facing storefronts and coordinated with overall Airport signage
and graphic requirements.

Signs designed as an integral part of the storefront and bulkhead
is encouraged.

Letter size and location should be appropriate in scale and
proportion to the overall storefront and bulkhead design.

Signage must be located within the Terminal Building supplied
signage bulkhead in all instances where a bulkhead is supplied.

Selection of colors, letters, backgrounds shall be approved by The
Authority.
5.8.2
Identification signs must be contained within the sign band. The
length of any sign shall not exceed 66% of the store front width, for
maximum heights 12-18 inches. (See Exhibits)
5.8.3
Internal illumination is a basic requirement, but requests may be
considered for signage that is not internally illuminated, provided
that the illumination has been deleted as a conscious design
consideration.
5.8.4
Where applicable, attempts must be made to conceal exposed
signage brackets and fastenings. Where brackets and fastenings
cannot be hidden from view, they must be screened in a manner that
minimizes their appearance.
5.8.5
Unless otherwise approved, permitted types of main identification
signs include the following:

internally illuminated lexan panels (backlit box)

individual backlit letters

suspended neon letters behind glass

artisans plaque in a material such as mirror, wood or plastic
laminate illuminated from behind
5.8.6
Freestanding or floor standing signs will only be permitted within the
lease line.
5.8.7
The wording of storefront signs shall include the Tenant's trade name
only. No charge card signs can be attached to the storefront.
Promotional signs of any kind will not be permitted. Advertising or
product identification signs will not be permitted on the storefront.
5.8.8
Access for servicing of sign components must be from within the
Tenant premises.
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25
Signage materials, installation procedures and illumination levels
must be Authority approved or equivalent.
5.8.10 No flashing, blinking, animated or audible signs will be permitted. No
exposed light sources will be permitted other than neon tube.
Exposed neon tube may not be mounted against a highly polished or
reflective surface.
5.8.11 Lighting levels must not exceed 1000 lux at a point one and a half
feet from the face of the sign.
5.8.12 To create a colourful shopping street environment, a sign conforming
to a single design standard will be part of the signage program for
each unit. The Tenant’s logo and colors will be used on the sign.
5.8.13 Additional types of identification signage may be considered. Each
request will be reviewed on a case by case basis and approval will be
dependent upon whether the proposed identification sign adheres to
a number of basic considerations including type, height, size and
location. Possible types of additional identification signage may
include:
5.9

corporate logos or symbols

back painted or sandblasted store display windows

carved or engraved lettering

painted Plexiglas or lexan

neon

individual backlit letters

internally illuminated lexan panels

wooden (painted or stained)
Locks
Locks shall be as approved by the Authority, and a file copy of keys to access
the unit and any related storage areas shall be provided to the Authority.
PART 6 – RETAIL DESIGN CRITERIA
6.1
Design Approach
Section 6.9 Retail Design Guideline Drawings contains examples of retail
outlets, floor plans, storefront elevations and sections. Specific guidelines
are provided below.
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6.2
Storefronts
6.2.1
Open storefronts which allow maximum exposure of the tenant area
is encouraged. A minimum of 66% of the store front elevation
should be either glass or open access. Designers are encouraged to
use a variety of planes in the design of fixed display windows to
provide a three dimensional "sculptural" approach to the storefront.
The profile of the storefront should have imaginative geometry and
positioning of display windows to produce an interesting shape. The
storefront need not emphasize the position and shape of the lease
line. Signage shall occur within the existing bulkhead constructed as
a part of the base building.
6.2.2
All store entranceways shall be a minimum of 6 feet in width.
6.2.3
Store fronts shall not interfere with existing electrical and mechanical
services of the Air Terminal Building. In the event that alterations
must take place, the tenant must receive prior approval. In addition,
all costs involved in altering electrical and/or mechanical systems
shall be the responsibility of the tenant.
6.2.4
No portion of a store front shall protrude beyond the lease line.
Where quarry tile exists, store front walls shall follow along a
previously defined grout line inside the leased area. Where Walls are
to be attached to quarry tile floors, attachment must be done in the
grout line.
6.2.5
Glass shelving is encouraged in store front display windows.
6.2.6
Stores occupying an area which has two or more store fronts shall
install display windows and/or store entrances on all elevations.
6.2.7
All window coverings shall match those existing in the area, unless
otherwise approved.
6.2.8
Where a store front is located adjacent to a public circulation
corridor, or in any other area where baggage carts are commonly
used, a durable base material shall be installed to a height of one
and a half (1.6) foot above the level of the floor. Acceptable store
front base materials include:

quarry tile or ceramic tile

stainless steel

prefinished metals

stone tile
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In all high traffic areas, a wainscoting of impact resistant material or
bumper guard shall be installed at a height of 3 foot above the
finished floor, as illustrated below.
6.2.10 Closure doors will be one of the following:
Swing frameless glass doors on pivots with a 6 inch high bottom rail
in an approved finish.

Single track frame less glass sliding doors.

Aluminium and glass sliding doors with concealed storage.

Sliding aluminium grille door with recessed top hung track in an
approved finish. No floor track is allowed. Infill panels for folding
screens to be tempered glass not Lexan.

Rolling overhead aluminium grille with recessed side tracks.
If swing doors are used, a setback of 3 foot minimum from lease line
is required to allow for door swings. In case of sliding storefronts at
the lease line, the first 3 foot will still be in the design control area.
If the distance between the lease line and the closure is greater than
3 foot then the design control area extends to the closure line.
6.2.11 In the design control area, demising walls and ceiling exposed to the
public areas of the Terminal are to be finished with an approved base
building material.
6.2.12 Storefronts are to have a standard glazing height of a range of 7’-6”
to 10’. (See Exhibits) Glazing mullions are to be in a specified finish
approved by the Airport.
6.2.13 When opaque materials are used the design balance between opaque
and transparent materials will be to the Airport's approval. All
opaque areas are to be approved materials.
6.2.14 In the design control area, fixed showcase units or portable
showcase units (fixed in position) are allowed. Showcase units must
be fully finished on all sides in approved materials.
6.2.15 Awning and canopy storefronts may not project beyond the Lease
line.
6.2.16 The Tenant’s sign must appear within the design control area.
6.2.17
Display windows lighting shall be incandescent or a combination of
incandescent, halogen, low brightness fluorescent, or LED. In
general, light sources (including lamps) shall not be visible from the
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terminals public corridors. Lamp temperatures shall be in the range
of 3,000k to 3,500k (warm white). 6.2.18 Detailing of plastic laminates must use joints concealed in an
acceptable manner. Exposed butt joints are not acceptable.
6.2.20 Mirror fixing should avoid "J"-molding trim wherever possible.
6.2.21 Resilient flooring materials are not acceptable within the public areas
of Tenant premises.
6.2.22 Pegboard used as display backing is not acceptable if it is visible from
the public areas.
6.2.23 Rubber and vinyl are not acceptable for storefront bases.
6.2.24 Storefronts must be supported directly from the building structural
system where such support is necessary.
The base building
bulkhead and ceiling may not be used for such support.
6.3
6.4
Store Tops
6.3.1
Where the top of a store is exposed to views from above, The
Authority requires that the top of the store be finished. Designs and
materials which are consistent with the architectural detail of both
the store and the Terminal Building, and which require minimum
maintenance should be used.
6.3.2
No conduit, wiring, plumbing or mechanical apparatus shall be visible
from above or below.
6.3.3
No storage is permitted on store tops.
6.3.4
Store tops should be designed so as to allow minimal accumulations
of dust and debris.
6.3.5
All store tops shall be maintained and cleaned on a regular basis.
Interiors
6.4.1
6.4.2
6.4.3
For retail units, the design control area has been established from
the lease line to 4 feet into the unit.
Store layouts must be organized such that all queuing will be
contained entirely within the leased area.
Queuing into public
circulation corridors is to be avoided.
Queuing into store
entranceways and interior circulation aisles should be minimized.
All display racks and stands must be entirely contained within the
leased area and shall not be located within entranceways. Display
racks and stands shall not encroach into public circulation corridors.
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6.4.4
All shelving within stores should be either painted or polished metal,
shatterproof glass, or solid core laminate. Painted or stained wood
will be considered on a case by case basis as an alternative shelving
material.
6.4.5
Aisles within stores must be designed and spaced for easy and safe
movement. In general, interior layouts shall be designed for safety
and convenience, shall utilize floor and wall surfaces that ensure safe
and easy movement, and shall incorporate counter areas of suitable
height and adequate knee space for people in wheelchairs. All
concession units must be ADA compliant.
6.4.6
All retail outlets shall have adequate storage areas. In order to
ensure that storage is space efficient and orderly, all storage
areas/rooms shall be adequately fitted with shelving, racks, etc.
6.4.7
All equipment to be used within the retail operation shall be indicated
on initial submissions. The installation of additional equipment, such
as coolers, display racks, etc., shall require The Authority approval.
6.4.8
Retail outlets may be required to incorporate the ATB Public
Announcements System into their designs and layouts.
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6.5
Electrical Design Criteria
ITEM
ELECTRICAL
LANDLORD RESPONSIBILITIES


Lighting


TENANT RESPONSIBILITIES
480V power is provided for 
each tenant space.
Each
space is served by a junction
box, an empty feeder conduit
and a 480V/3P circuit breaker
in the distribution panel.
480V
feeder
conductors
120/208V
transformation,
and 120/208 distribution are
not
included
in
the
construction documents.
Remote digital check meter 
to
monitor
power
consumption.
Disconnect switch.
Approval of design and light 
fixtures.



Telephone


1
inch
empty
conduit 
terminating at a junction box.


The spaces are provided with 
a sprinkler system to be
adjusted by the tenant.

Landlord system is a Simplex 
4100 series.
Must be URL approved.
Copper wire, allow for max.
voltage of 2% to min. size of
#12 AWG.
Light fixtures subject to
Landlord approval.
Meet signage requirements of
Design Criteria Manual.
Meet building code
requirements of exit and
emergency lighting including
handicapped accessibility
standards.
Switches required, breaker
switching not permitted.
Dimmers are permitted.
Tenant to obtain telephone
service.
Tenant responsible for any
dedicated data lines, fiber
cables etc.
Provide fire alarm wiring to
junction box.
Include cost to verify and
reprogram the main airport
fire alarm system in the
presence of the Landlord and
authorities
having
jurisdiction.
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ITEM
31
LANDLORD RESPONSIBILITIES
TENANT RESPONSIBILITIES


6.6
1.5” empty conduit

terminating at a junction box.
Where a fire suppression
system
is installed, the
Tenant is responsible for the
appropriate inspection.
Tenant to obtain cable TV
service.
Mechanical Design Criteria
ITEM
MECHANICAL
LANDLORD RESPONSIBILITIES
TENANT RESPONSIBILITIES

Plumbing (If approved)


The
retail
spaces
are 
provided with 1” cold water
stub out with valve and a 4”
sanitary to lease line.
hot-water not provided



The retail spaces are
provided with a minimum of
1-1/2” chilled water stub out,
the flow rate of which
equates to approximately 14
tons of air conditioning. If
larger loads appeared in the
HVAC load program, then a
larger chilled water stub out
was provided. The average
load used in the HVAC
computer program for retail
spaces is 35 W/SF.


Provide back flow preventer
on main cold water service
connection.
Distribution of supply and
waste lines and fixtures.
Install water check meter
and remote.
Install all plumbing in
accordance with existing
codes.
Installation of all equipment,
ducts, diffusers, insulation,
controls, final electrical
connection and
appurtenances required for
the maintenance of required
conditions in lease space.
The Landlord will determine if
return air from the premises
can be recirculated.
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ITEM
LANDLORD RESPONSIBILITIES
TENANT RESPONSIBILITIES

6.7
Any additional costs resulting
from requirements for any
change in the standard
heating, ventilating and air
conditioning system installed
or to be installed by the
Landlord, the provisions of
make up air, or any other
special conditions will be by
the Tenant.
Structural Design Criteria
ITEM
LANDLORD RESPONSIBILITIES

Existing conditions apply.
TENANT RESPONSIBILITIES





Tenants' design to allow for
potential 1 3/8” inch
deflection of building.
obtain written approval from
the Landlord prior to placing
any heavy loads (eg. vaults,
safes or door grilles) which
exceed base building design
loads for floors or ceilings
(4.8 KPa).
All information re: proposed
modifications must be
forwarded to the Landlord for
review and approval. No
work may commence on any
structural modifications until
this approval has been
received in writing.
All inserts, attachments, etc.
into existing precast,
prestressed structure shall be
forwarded to, and approved
by, the Landlord prior to
installation.
No welding will be allowed on
the premised without the
Landlord's approval.
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33
Retail Design Guideline Drawings
The drawings enclosed include floor plans of all of the tenant units, sections and
elevations and are intended to familiarize perspective tenants with the leaseable
areas available, design guidelines and landlord design areas. The floor plan
dimensions are approximate and prospective tenants must field verify the
respective leaseable areas.
Exhibit 6-1. Overall Reference Plan 2nd Floor/Gate Level
Exhibit 6-2. Overall Reference Plan Ground Level
Exhibit 6-3. Example of Typical Signage
Exhibit 6-4. Example of Typical Concourse Blade Sign
Exhibit 6-5. Terminal Landside Tenant Coffee/Retail Floor Plan (F1-C1)
Exhibit 6-6. Concourse A Tenant Food Beverage (F7) and Retail Floor Plan (C5)
Exhibit 6.7. Concourse A Typical Storefront Elevation and Section
Exhibit 6.8. Concourse A/B Hub Tenant Retail Floor Plan (C4) (DF1)
Exhibit 6.9. Concourse A/B Hub Typical Storefront Elevation and Section
Exhibit 6.10. Concourse B Tenant Retail Floor Plan (News and Gifts)
Exhibit 6.11. Concourse B Typical Elevation and Section
Exhibit 6.12. Concourse B/C Hub Tenant Floor Plan (S1) (C2)
Exhibit 6.13. Concourse C Tenant Retail Floor Plan (C6)
Exhibit 6.14. Concourse C Typical Elevation and Section
Exhibit 6.15. Arrivals Landside Tenant Food/Beverage (F5) Retail Floor Plan (C3)
Exhibit 6.16. Arrivals Landside Typical Elevation and Section
Exhibit 6.17. Details Plan Details 1, 2, 3, 4, 5 and 6
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
34
Retail Design Guideline Drawings
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Exhibit 6-1. Overall Reference Plan 2nd Floor/Gate Level
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
35
36
Tenant Design Guide
Exhibit 6-2. Overall Reference Plan Ground Level
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
37
Exhibit 6-3. Example of Typical Signage
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
38
Tenant Design Guide
Exhibit 6-4. Example of Typical Concourse Blade Sign
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Exhibit 6-5. Terminal Landside Tenant Coffee/Retail Floor Plan (F1-C1)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
39
40
Tenant Design Guide
Exhibit 6-6. Concourse A Tenant Food Beverage (F7) and Retail Floor Plan (C5)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Exhibit 6.7. Concourse A Typical Storefront Elevation and Section
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
41
42
Tenant Design Guide
Exhibit 6.8. Concourse A/B Hub Tenant Retail Floor Plan (C4) (DF1)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Exhibit 6.9. Concourse A/B Hub Typical Storefront Elevation and Section
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
43
44
Tenant Design Guide
Exhibit 6.10. Concourse B Tenant Retail Floor Plan (News and Gifts)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Exhibit 6.11. Concourse B Typical Elevation and Section
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
45
46
Tenant Design Guide
Exhibit 6.12. Concourse B/C Hub Tenant Floor Plan (S1) (C2)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Exhibit 6.13. Concourse C Tenant Retail Floor Plan (C6)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
47
48
Tenant Design Guide
Exhibit 6.14. Concourse C Typical Elevation and Section
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
49
Exhibit 6.15. Arrivals Landside Tenant Food/Beverage (F5) Retail Floor Plan (C3)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
50
Tenant Design Guide
Exhibit 6.16. Arrivals Landside Typical Elevation and Section
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Exhibit 6.17. Details Plan Details 1, 2, 3, 4, 5 and 6
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
51
52
Tenant Design Guide
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
53
Tenant Design Guide
54
PART 7 – FOOD & BEVERAGE DESIGN CRITERIA
7.1
General
Food & Beverage units throughout the Airport will be open storefront
concept”. Refer to Section 7.7, Design Guideline Drawings, for examples of
floor plans and details to be incorporated by each tenant.
7.2
Airside Food Court/Landside Restaurant
7.2.1
7.2.2
The merchandising concept of the Food Court is to create a strong
visual identification of the Tenant's merchandise. Presentation of the
food, rather than the condiments covered in suppliers’ trade names
is the goal. The restaurant must be designed to be open storefront,
stressing presentation of cooking and food preparation, to entice the
customer. The following concepts are required:

Use only glass display cases and feature cooking areas.

Cash registers must be recessed.

Beverage machines and other miscellaneous equipment on front
counter are subject to design review by the Authority.

Cup dispensers are to be recessed into the front or back counter
as an integral part of the design.
A design control zone (area visible to the public) has been
established within the airside food court lease line, extending from
the lease line to approximately 6 feet to 8 feet into the unit. All
Tenants must observe the following in this control zone:

If a ceiling is to be constructed it will be at a minimum of 10 feet
above the floor.

New units will include the general design elements of green glass
and stone where feasible.

Bulkheads will be natural hardwood, wood panelling, plastic
laminate, mirror, glass, painted drywall and/or other materials of
good quality.

All finishes must be durable, high quality materials such as
ceramic, quarry or marble tiles and/or plastic laminates. Vinyl
composite tile and painted drywall will not be allowed in the
control zone.

Tenant front counter height must not exceed 3 feet, except where
glass display cases or sneeze guards are used. Maximum height
for glass is four and a half (4.6) feet off finished floor.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
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7.2.3
7.3
55

Flip up counters with access gate will be permitted on front
counter location.
Access doors will not be allowed at front
counter.

Tray rails must not project past the Lease Line, and must be
incorporated into the countertops.

All metal trims to display cases, sneeze guards and tray rails
must be brass or brushed stainless steel.

If an exhaust hood is used at the front counter it will be subject
to very stringent appearance guidelines.

Simulated wood grain finishes will not be permitted within the
design control zone.

Rear stock storage rooms are not to be visible to the public.

Fluorescent lights used in the serving area must be equipped with
par wedge louvers.

Roll up security grilles, if utilized, must be fully concealed during
business hours.
Menu Boards. Tenants have an opportunity to present their menu
boards in a very creative fashion. Tenants are hereby encouraged to
design their area accordingly:

All menu boards are to be illuminated (preferably backlit).

Menu boards are to be located under the bulkhead within the
Tenant space.

Menu boards cannot be hung from the ceiling in front of the
bulkhead.

Sized color photographs of their product(s) on the menu boards.

Maximum height of menu boards is to be two and a half (2.6)
feet.

Freestanding menu boards or other freestanding signs are not
allowed without approval of the Airport.
Landside/Airside Bar
7.3.1
A roll-down shutter or grille will be permitted to close off the bar
from public areas and/or patron seating areas during closed hours.
However, it must be fully concealed during business hours.
7.3.2
Floors must be quarry tile properly treated and sealed before bar
equipment is installed. Raised metal bases will require floor finish
and will be used on some bar equipment.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
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56
7.4
7.3.3
Vinyl tubing is permitted to run under the floor for syrup and/ or
liquor lines only with the Authority’s prior approval.
7.3.4
All walls must be washable in the bar area.
7.3.5
Maximum ceiling height for entire bar area is to be 10 feet.
Food Preparation Areas
7.4.1
Doors must have a minimum dimension of 3 feet X 7 feet. Kitchen
access doors shall have vision panels (not applicable to Food Court).
7.4.2
Walls. In servery, food preparation and dishwashing areas:

Walls must be ceramic tile over ½” cement board to a minimum
height of 7 feet or Fiberglass Reinforced Panel.

All exposed columns and vulnerable corners in the kitchen area
must be protected to the height of four and a half (4.6) feet with
stainless steel covers.

Mounting blocking is required to support kitchen equipment. Do
not support equipment off Tenant demising walls without consent
of the Authority.

Walls can be modified to accommodate recessed control panels
for food services equipment (i.e. vent hoods) only with the
Authority’s approval.

All wall and ceiling construction around kitchen exhaust canopies
and cooking equipment must be of metal and stud construction
with ½” cement board on the equipment side or be of cement
block construction.
7.4.3
Ceilings. The minimum ceiling height for entire kitchen area is to be
9 feet.
All ceilings to be a smooth acoustically treated, nonabsorbent and hard surface in compliance with building code and
health code requirements.
7.4.4
Miscellaneous
7.4.4.1
Towel and hand soap dispensers will be installed at all hand
sink locations.
7.4.4.2
Doors and hardware in Food & Beverage areas will be:

Wood doors -solid core, plastic laminate finish.

Metal doors -painted (not allowed within design control
zone).
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
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57

Metal frames -painted.

Latching assembly - 32D
complete with 03 lever.

Hinges - 3 per door, Schlage, ball bearing 32D finish.

Locks - Schlage, 32D finish.

Door stops – 32D finish, floor mount preferred.

Door closure - must be LCN Series 4000 or 4100.

Door frames - galvanized steel paint color to the
Authority’s approval.
finish,
Stanley
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
CB
1960
Tenant Design Guide
58
7.5
Electrical Design Criteria
LANDLORD RESPONSIBILITIES
TENANT RESPONSIBILITIES
FOOD COURT/
RESTAURANT


480 V power is provided for

each tenant space. Each
space is served by a junction
box, an empty feeder conduit
and a 480V/3P circuit breaker
in the distribution panel.
480V feeder conductors,
120/280V transformation,
and 120/208 distribution are
not included in the
construction documents.
remote digital check meter to 
monitor power consumption.

disconnect switch.

approval of design and light
fixtures.
URL approved.
Copper wire, allow for max.
voltage of 2% to min. size of
#12 AWG.

Light fixtures subject to
Landlord approval.

Lighting to Kitchen/ Food
Prep areas to provide min. of
750 lux at 914 mm above
finished floor.
Meet signage requirements of
Design Criteria Manual.
Meet building code
requirements of exit and
emergency lighting including
handicapped accessibility
standards.
Switches required, breaker
switching not permitted.





Dimmers are permitted.
Bar area tight switches to be
located behind bars.
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59
LANDLORD RESPONSIBILITIES
Fire Alarm
TENANT RESPONSIBILITIES

1 inch empty conduit

terminating at a junction box.
Tenant to obtain telephone
service. Tenant responsible
for any dedicated data lines,
fibre cables, etc.

The spaces are provided with
a sprinkler system to be
adjusted by the tenant
Landlord system is a Simplex
4100 series.

Provide fire alarm wiring to
junction box.

Include cost to verify and
reprogram the main airport
fire alarm system in the
presence of the Landlord and
authorities having
jurisdiction.
If fire suppression system is
installed, the tenant is
responsible for ongoing
inspection.
Tenant to obtain cable TV
service.


Cable or Satellite TV
7.6

1.5” inch empty conduit

terminating at a junction box.
Mechanical Design Criteria
LANDLORD RESPONSIBILITIES
TENANT RESPONSIBILITIES

1” gas line to Landlord’s
designated point within
Tenant space.



1” cold water stub out with
valve and 4” inch sanitary
line, and a 4”grease waste
line.

AIRSIDE FOOD COURT/
RESTAURANT
Distribution piping by tenant.
Provide a solenoid valve on
the main gas line where
kitchen automatic fire
extinguishing systems are
installed to shut off all gas
within lease premises when
extinguishing system is
activated. Tenant to install
meter.
Distribution of supply and
waste plumbing lines and
fixtures required by Tenant
to serve its own premises.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
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60
LANDLORD RESPONSIBILITIES
TENANT RESPONSIBILITIES


Hot water not provided.









Plumbing
Heating & Air
Conditioning

The food concessions spaces
are provided with a chilled
water stub out sized at 4’
pressure drop per 100 LF of
pipe (4’/100), based on the
loads calculated in the HVAC
load program. The “fast
food” concessions have an
average of 86 W/SF load and
the main restaurant on upper
level Concourse “B” has 105
W/SF of calculate load in the
HVAC load program.


Install check water meter
and remote.
Install all plumbing in
accordance with all applicable
codes.
Water and waste hook-ups
shall be piped to connections
provided by the Landlord and
connections made under
supervision of Landlord.
Provide electrical hot water
heaters only.
Hot and cold piping shall be
insulated.
All refrigeration equipment
shall be water cooled.
Provide floor drains in kitchen
and bar areas.
Grease interceptors shall be
installed in all drain lines
from food service equipment.
Grease interceptors shall be
surface floor mounted.
Grease storage shall be
provided and removed to a
landlord designated area.
Provide back flow preventer
on main cold water service
connection.
Installation of all equipment,
ducts, diffusers, insulation,
controls, final electrical
connection and
appurtenances required for
the maintenance of required
conditions in lease space.
The Landlord will determine if
return air from the premises
can be recirculated.
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61
LANDLORD RESPONSIBILITIES
AIRSIDE FOOD COURT/
RESTAURANT
Exhaust Ventilation


7.7
TENANT RESPONSIBILITIES
Exhaust ventilation duct shaft 
only to airport roof.
Roof penetration undertaken
by the Airport at tenants'
expense.
Equipment and ductwork by
Tenant.
Structural Design Criteria
ITEM
LANDLORD RESPONSIBILITIES

Existing conditions apply.
TENANT RESPONSIBILITIES





Tenants' design to allow for
potential 1 3/8” inch
deflection of building.
Obtain written approval from
the Landlord prior to placing
any heavy loads (e.g. vaults,
safes or door grilles) which
exceed base building design
loads for floors or ceilings
(4.8 KPa).
All information re: proposed
modifications must be
forwarded to the Landlord for
review and approval. No
work may commence on any
structural modifications until
this approval has been
received in writing.
All inserts, attachments, etc.
into existing precast,
prestressed structure shall be
forwarded to, and approved
by, the Landlord prior to
installation.
No welding will be allowed on
the premised without the
Landlord's approval.
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7.8
Food & Beverage Design Guideline Drawings
The drawings enclosed are intended to familiarize prospective tenants with specific
guidelines and/or suggested design solutions.
Exhibit 7-1. Overall Reference Plan 2nd Floor/Gate Level
Exhibit 7-2. Overall Reference Plan Ground Level
Exhibit 7-3. Example of Typical Signage
Exhibit 7-4. Example of Typical Concourse Blade Sign
Exhibit 7-5. Terminal Landside Tenant Coffee/Retail Floor Plan (F1-C1)
Exhibit 7-6. Terminal Landside Tenant Food and Beverage Food Plan (F2+F3)
Exhibit 7-7. Section Typical Terminal Landside
Exhibit 7-8. Concourse A Tenant Food Beverage (F7) and Retail Floor Plan (C5)
Exhibit 7-9. Concourse A Tenant Food and Beverage Floor Plan (F6)
Exhibit 7.10. Concourse A Typical Storefront Elevation and Section
Exhibit 7.11. Concourse A/B Hub Tenant Food and Beverage Floor Plan (F9) (F10)
Exhibit 7.12. Concourse A/B Hub Typical Storefront Elevation and Section
Exhibit 7.13. Concourse B Rotunda Tenant Food and Beverage Floor Plan (F8)
Exhibit 7.14. Concourse B Rotunda Typical Storefront Elevation and Section
Exhibit 7.15. Concourse B/C Hub Tenant Food and Beverage Floor Plan (F12)
(F13)
Exhibit 7.16. Concourse B/C Hub Typical Elevation and Section
Exhibit 7.17. Concourse C Tenant Food and Beverage Floor Plan (F15)
Exhibit 7.18. Concourse C Tenant Food and Beverage Floor Plan (F16)
Exhibit 7.19. Concourse C Typical Elevation and Section
Exhibit 7.20. Arrivals Landside Tenant Food/Beverage Floor Plan (F4)
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Exhibit 7.21. Arrivals Landside Tenant Food/Beverage (F5) Retail Floor Plan (C3)
Exhibit 7.22. Arrivals Landside Tenant Food/Beverage (5) Retail Floor Plan (C3)
Exhibit 7.23. Arrivals Landside Typical Elevation and Section
Exhibit 7.24. Details Plan Details 1, 2, 3, 4, 5 and 6
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
64
Tenant Design Guide
Food & Beverage Design Guideline Drawings
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Exhibit 7-1. Overall Reference Plan 2nd Floor/Gate Level
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
65
66
Tenant Design Guide
Exhibit 7-2. Overall Reference Plan Ground Level
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
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Tenant Design Guide
67
Exhibit 7-3. Example of Typical Signage
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
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68
Tenant Design Guide
Exhibit 7-4. Example of Typical Concourse Blade Sign
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
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Tenant Design Guide
Exhibit 7-5. Terminal Landside Tenant Coffee/Retail Floor Plan (F1-C1)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
69
70
Tenant Design Guide
Exhibit 7-6. Terminal Landside Tenant Food and Beverage Food Plan (F2+F3)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
71
Exhibit 7-7. Section Typical Terminal Landside
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
72
Tenant Design Guide
Exhibit 7-8. Concourse A Tenant Food Beverage (F7) and Retail Floor Plan (C5)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Exhibit 7-9. Concourse A Tenant Food and Beverage Floor Plan (F6)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
73
74
Tenant Design Guide
Exhibit 7.10. Concourse A Typical Storefront Elevation and Section
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
75
Exhibit 7.11. Concourse A/B Hub Tenant Food and Beverage Floor Plan (F9) (F10)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
76
Tenant Design Guide
Exhibit 7.12. Concourse A/B Hub Typical Storefront Elevation and Section
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
77
Exhibit 7.13. Concourse B Rotunda Tenant Food and Beverage Floor Plan (F8)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
78
Tenant Design Guide
Exhibit 7.14. Concourse B Rotunda Typical Storefront Elevation and Section
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Exhibit 7.15. Concourse B/C Hub Tenant Food and Beverage Floor Plan (F12)
(F13)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
79
80
Tenant Design Guide
Exhibit 7.16. Concourse B/C Hub Typical Elevation and Section
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Exhibit 7.17. Concourse C Tenant Food and Beverage Floor Plan (F15)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
81
82
Tenant Design Guide
Exhibit 7.18. Concourse C Tenant Food and Beverage Floor Plan (F16)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Exhibit 7.19. Concourse C Typical Elevation and Section
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
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84
Tenant Design Guide
Exhibit 7.20. Arrivals Landside Tenant Food/Beverage Floor Plan (F4)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
85
Exhibit 7.21. Arrivals Landside Tenant Food/Beverage (F5) Retail Floor Plan (C3)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
86
Tenant Design Guide
Exhibit 7.22. Arrivals Landside Tenant Food/Beverage (F5) Retail Floor Plan (C3)
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
Exhibit 7.23. Arrivals Landside Typical Elevation and Section
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
87
88
Tenant Design Guide
Exhibit 7.24. Details Plan Details 1, 2, 3, 4, 5 and 6
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Tenant Design Guide
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
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89
90
Tenant Design Guide
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
Exhibit C
Operating Schedule
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals
1
Operating Schedule
For any given day,

All airside departure concessions shall be opened from at least one and half
hours before the first commercial flight’s departure of the day and shall remain
open until at least thirty minutes after the last in coming commercial;

All landside concessions shall be opened from at least the earlier of:
o The time of the first commercial flight’s arrival; and
o Two hours before the first commercial flight’s departure.
Until at least the later of:
o Thirty minutes after the time of the last commercial flight’s departure; or
o One hour after the time of the last commercial flight’s arrival; and

In the case of major flight arrival and departure delays due to uncontrollable
circumstances (example: weather), airside and landside departures concessions
shall remain open as long as the terminal buildings remain open to the public,
and there are passengers present in the terminal buildings.
BIRMINGHAM-SHUTTLESWORTH INTERNATIONAL AIRPORT INC.
Food & Beverage
Request for Proposals