COMMITTEE OF THE WHOLE Packet - 4/9/2019CITY OF MUSKEGO
COMMITTEE OF THE WHOLE AGENDA
04/09/2019
5:40 PM
Muskego City Hall, W182 S8200 Racine Avenue
CALL TO ORDER
PLEDGE OF ALLEGIANCE
ROLL CALL
STATEMENT OF PUBLIC NOTICE
APPROVAL OF AGENDA
APPROVAL OF MINUTES
March 26, 2019
NEW BUSINESS
Review RFP and P3 For-Profit Use of Public Parks
Memo
GFOA Supporting Documents
RFP Currently Used by the City
RFP Fitchburg for Private For-Profit Use
RFP Example For-Private Use
P3 Agreement
COMMUNICATIONS AND MISCELLANEOUS BUSINESS AS AUTHORIZED BY LAW
ADJOURNMENT
The Committee of the Whole may possibly reconvene immediately following the Common
Council meeting of the same date to continue work on agenda items.
NOTICE
IT IS POSSIBLE THAT MEMBERS OF AND POSSIBLY A QUORUM OF MEMBERS OF OTHER GOVERNMENTAL BODIES OF
THE MUNICIPALITY MAY BE IN ATTENDANCE AT THE ABOVE-STATED MEETING TO GATHER INFORMATION; NO ACTION
WILL BE TAKEN BY ANY GOVERNMENTAL BODY AT THE ABOVE-STATED MEETING OTHER THAN THE GOVERNMENTAL
BODY SPECIFICALLY REFERRED TO ABOVE IN THIS NOTICE.
ALSO, UPON REASONABLE NOTICE, EFFORTS WILL BE MADE TO ACCOMMODATE THE NEEDS OF DISABLED
INDIVIDUALS THROUGH APPROPRIATE AIDS AND SERVICES. FOR ADDITIONAL INFORMATION OR TO REQUEST THIS
SERVICE, CONTACT MUSKEGO CITY HALL, (262) 679-4100.
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Unapproved
CITY OF MUSKEGO
COMMITTEE OF THE WHOLE MINUTES
March 26, 2019
5:30 PM
City Hall, W182 S8200 Racine Avenue
CALL TO ORDER
Mayor Chiaverotti called the meeting to order at 5:37 p.m.
ROLL CALL
Present: Alderpersons Wolfe, Hammel, Borgman, Kapusta, Kubacki and Madden. Also
present: City Attorney Warchol and Deputy Clerk Blenski. Absent: Alderperson Engelhardt.
STATEMENT OF PUBLIC NOTICE
The Deputy Clerk stated the meeting was noticed in accordance with the open meeting law.
APPROVAL OF MINUTES – March 12, 2019
Alderperson Madden moved to approve. Alderperson Wolfe seconded; motion
carried.
NEW BUSINESS
Muskego Senior Taxi
Mayor Chiaverotti stated the Alderpersons had several questions about the taxi service during
the last budget process. The Common Council Resolution that was adopted in September of
2008 (Resolution #165-2008) indicated that the organization was to provide taxi service for the
community’s senior citizens and ambulatory disabled adults. Since 2008, service has been
extended to other individuals. The Mayor recommends a special Committee be established to
review the specifics of the service, the individuals that need the transportation and the funding
sources within Waukesha County.
Alderperson Madden would like a better understanding regarding the service. Alderperson
Wolfe stated the Council needs some type of feedback and needs to be more educated prior to
the next budget cycle. Alderperson Kubacki agreed. The Mayor stated she would like
Alderpersons Borgman and Kubacki to serve on the Committee as well as someone from the
Muskego Senior Taxi Service.
Alderperson Madden moved that a Committee be established to review the current
Muskego Senior Taxi program and report its findings to the Common Council.
Alderperson Kubacki seconded; motion carried.
ADJOURNMENT
Alderperson Kubacki made a motion to adjourn at 5:46 p.m. Alderperson Madden
seconded; motion carried.
Minutes taken and transcribed by Jill Blenski, Deputy Clerk.
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March 26, 2019
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MEMO
Date: March 12, 2019
To: Committee of the Whole
From: City Staff
Background: The City was approached by an individual proposing a for-profit use of Idle Isle pavilion,
bathrooms, parking and trash/recycling service. The proposed use included restaurant food and
beverage service including alcohol. Committee of the Whole had a conceptual discussion on November
27, 2018 and the committee requested additional info to include examples of an RFP and P3 Agreement.
Additional Info through Research and Review:
Adopted Park and Conservation Plan (2017-2021) provide assessment of the current park (Idle
Isle) along with a list of recommendations moving forward including the use of RFP.
Government Finance Officers Association (GFOA) recommends determining services desired and
defined through an RFP (food/beverage, hours, rentals, facility capacity and improvements with
continued access to public facility owned and funded by tax payers) and use of a P3 Agreement
for the sale or lease of assets belonging to the public. In line with the Comp Plan, the City has
used an RFP for concessions at Idle Isle and the Beer Garden.
Parking is limited at Idle Isle and fully utilized on Tuesday evenings (Bass fishing tournament)
and Wednesday evenings (Ski Shows) and weekends which is typical for a beach park with a
boat launch. For private use, parking will need to be added by the private entity.
Videos from the park show the pavilion is well used by the public for picnicking.
Existing 2 year contract with the Water Bugs through 2019 leasing 2 of the 3 areas.
Consideration for single access point to the park, park size, lighting, noise, and public safety
(Commercial entities for these matters are address through Plan Commission).
Services desired and defined for RFP (food/beverage, hours, rentals, facility capacity, parking
and improvements with continued access to public facility owned and funded by tax payers)
would not need to go before Plan Commission.
Idle Isle is the main boat launch for Little Muskego Lake.
Any change to a public park or facility use should involve public input.
In 2019, a new 16’ hexagon pavilion will be constructed near the fishing pier for small groups. A
split rail fence will also be installed to define the parking area from the grass and a new kiosk
will be installed at the launch to provide information.
Pavilions and other designate areas in other City parks are currently rented out to the public.
Based on the park use, the same rental opportunities will be available at Idle Isle in 5 separate
areas including pavilions.
Beer Garden was considered at Idle Isle. Due to limited access, parking, close proximity to
homes, it was not acted on.
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Memo
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Items to review prior to COW meeting on 3/12/19
City of Fitchburg RFP example (lessons learned below).
City of Muskego concessionaire RFP.
City of Muskego Local Food and Drink RFP.
Example of a P3 agreement – Operations Concession Arrangement
GFOA advisory of best practices for Public-Private Partnership (P3).
GFOA advisory for P3 for Sale or Lease of Assets.
Lessons Learned from City of Fitchburg
o City of Fitchburg RFP is a great blueprint for City of Muskego due to the similarities between
communities.
o 1st release of RFP in 2017 there were no submittals.
o 2nd release of RFP in 2018, only one response from a local vendor who runs beer gardens in the
City of Madison.
o Fitchburg held public information meetings to present plans to the public. The public had strong
opinions/concerns allowing alcohol sales in park, additional traffic, and parking.
o All park locations had multiple access points, good facilities, and good park use.
o It was determined the public must not be denied use of any area of the pavilion.
o No agreement has been reached or finalize.
Committee discussion and consideration should involve the following:
Give serious consideration to public property being used on a regular basis for a for-profit
entity/business. All other local commercial entities go through Plan Commission, provide
necessary parking, etc., and pay property taxes. A reduced rent as part of a P3 Agreement would
be a disadvantage to tax paying businesses that met City and PC requirements.
Continue use of RFP process and P3 agreement as best practice for publicly owned property
(GFOA) and Comprehensive Plan.
Property improvements (pavilion upgrades) become an asset/ownership of the City (GFOA).
Parking needs to be addressed. (Added parking by private entity for patrons).
Additional traffic in the residential area which may include more pedestrians/bicyclists on
narrow streets.
Alcohol sales and consumption in City Park on a regular basis. Conflicts with Beer Permits for
park users. Added City staff would be necessary to monitor illegal mooring of boats and trailer
stall parking.
Residents and park users should be given the opportunity to provide feedback.
The City and Water Bugs existing contractual agreement is in place through 2019 giving them
use of 2 of the 3 pavilion areas. The third pavilion area is heavily utilized by the public.
Determine services desired to enhance the experience for the park users to avoid overexposure
to a park considering its size, location, use, limited parking, and neighboring homes.
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Memo
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GFOA Supporting Documents
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GFOA Supporting Documents
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GFOA Supporting Documents
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GFOA Supporting Documents
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Request for Proposal Concession Services
City of Muskego
Idle Isle Park
2019
The City of Muskego is hereby requesting proposals from responsive and responsible
organizations/individuals to provide concession services for a period of one year at Idle
Isle Park. In order to assist interested individuals/fundraising groups in making a
proposal, we have attached a list of items that should be addressed by interested parties.
Miscellaneous Conditions and Instructions to Interested Vendors
1. The city will be contracting with one vendor/fundraising group to operate one
Idle Isle Park concession area.
2. Proposals will be awarded based on the following:
a. Minimum monthly lease payment to the city shall be $_____ (highest
proposed monthly lease payment will be awarded the concessions
agreement – if all other conditions are met)
b. Menu of food/drink options available to park users
c. Performance capabilities, as perceived by the City of Muskego
d. Customer Service
e. Successful Criminal History Check (of final concessionaire candidate)
f. Concession stand experience, if any
3. The city expects customers to be treated with dignity and respect and expects
the concession service provider to place a high priority on ensuring customer
satisfaction.
4. Insurance and Indemnification Requirements:
In order to protect against potential liability arising out of the activities performed
hereunder, contractor shall obtain and maintain, in full force and effect, comprehensive
general liability insurance with minimum limits of $1,000,000 per occurrence and
$1,000,000 aggregate. Said insurance may not be cancelled, reduced or changed in any
way without at least thirty (30) day written notice to the City. Failure to provide proper
notice, in and of itself, shall be grounds for termination of this agreement. Contractor
shall obtain Certificates of Insurance as well as Endorsements to its insurance policies as
follows:
30 day notice of cancellation.
Contractor’s primary insurance.
Waiver of rights of recovery against others to us.
Naming the City as an additional insured.
Contractor hereby agrees to indemnify, defend and hold harmless the City of Muskego,
its elected and appointed officials, officers, employees, agents, representatives and
volunteers, and each of them, from and against any and all suits, actions, legal or
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RFP Currently Used by the City
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administrative proceedings, claims, demands, damages, liabilities, interest, attorney’s
fees, costs, and expenses of whatsoever kind or nature in any manner directly or
indirectly caused, occasioned, or contributed to in whole or in part or claimed to be
caused, occasioned, or contributed to in whole or in part, by reason of any act, omission,
fault, or negligence, whether active or passive, of Contractor or of anyone acting under its
direction or control or on its behalf, even if liability is also sought to be imposed on City
of Muskego, its elected and appointed officials, officers, employees, agents,
representatives and volunteers. The obligation to indemnify, defend and hold harmless
the City of Muskego, its elected and appointed officials, officers, employees, agents,
representatives and volunteers, and each of them, shall be applicable unless liability
results from the sole negligence of the City of Muskego, its elected and appointed
officials, officers, employees, agents, representatives and volunteers.
Contractor shall reimburse the City of Muskego, its elected and appointed officials,
officers, employees, agent or authorized representatives or volunteers for any and all
legal expenses and costs incurred by each of them in connection therewith or in enforcing
the indemnity herein provided.
In the event that Contractor employs other persons, firms, corporations or entities (sub-
contractor) as part of the work covered by this Agreement, it shall be The Sole
responsibility to require and confirm that each sub-contractor enters into and Indemnity
Agreement in favor of the City of Muskego, its elected and appointed officials, officers,
employees, agents, representatives and volunteers, which is identical to this Indemnity
Agreement.
This indemnity provision shall survive the termination or expiration of this Agreement.
5. CONSEQUENCES FOR NOT COMPLYING WITH THE SCOPE OF THE
WORK:
A. A substantiated case of non-compliance will be addressed to the contact person
representing the contractual service by the City.
B. A contractor's response deemed adequate by the City will be accepted and noted
should a future situation develop.
C. A contractor's response deemed inadequate by the City will result in the immediate
termination of the contractual service.
6. The concessionaire will be responsible for supplying all product and labor for
the concession stands, while maintaining a current City of Muskego vendor
contract. The concession area to be used as part as this RFP is storage area #3
on Exhibit “A”.
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RFP Currently Used by the City
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7. The City of Muskego reserves the right to reject any and all proposals with or
without cause, to accept any and all proposals, and to waive any irregularities
in any proposal. All bids are final and binding.
Completed proposals may be dropped off or mailed to the address below. Proposals
must be received by 4 p.m. on February 1, 2019.
If you have any questions regarding this request, please contact Scott Kroeger, Public
Works and Development Director, at 262-679-4145. Thank you for your interest in
working with the City of Muskego.
Public Works and Development Director
W182 S8200 Racine Avenue
Muskego, WI 53150
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RFP Currently Used by the City
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Responsibilities
The city will provide:
The concession facility with private entrance, roll up concession door and
service counter, and a Waukesha County Health Department approved sink
located within Idle Isle Park shelter concessions area. The concession area is
storage area #3 on Exhibit “A” approximately 157 square feet.
Electricity hook-up.
Criminal history check
The concessionaire is responsible for:
Operating a turn-key concessions operation in accordance with City, State,
County, and Federal business, labor, and health department regulations.
Obtaining all necessary regulatory permits and licenses to operate the
concessions operation and submitting copies to the Recreation Department.
Opening on time or earlier and closing as scheduled (all weather dependent)
Emptying garbage from concessions area and garbage cans underneath picnic
shelter and depositing in provided dumpster while also making sure picnic
tables and floor under the shelter roof are kept clean.
Disposing of any cooking products in an approved manner.
Keeping concessions area clean
Correcting any violations noted by the health and fire inspectors in a timely
manner.
Assuring that concession staff is always professional in appearance.
Any improvements wanted/needed/desired, need to be approved by the Parks
& Conservation Committee and Finance Committee and paid for by the
concessionaire
This is a 1-year agreement. Concessionaire is responsible for removing all
equipment at the conclusion of the agreement or within 2-weeks of public
business hours and for cleaning said leased space. Concessionaire is not
allowed to offer concessions during the Wednesday Water Bugs ski show,
unless an agreement between both the concessionaire and Water Bugs Ski
Club is agreed upon by both parties.
Concessionaire will be charged monthly for any amount of electrical usage
above $_____ during the months of May 1 thru Labor Day.
Concessionaire shall pay a minimum monthly lease of $_____ for a total of
$______ during the 4 months of leased space, due the first of each month.
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RFP Currently Used by the City
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A REQUEST FOR PROPOSAL (RFP) FOR:
LOCAL FOOD AND DRINK CONCESSION
IN SELECT CITY OF FITCHBURG PARKS
Issued by:
City of Fitchburg Parks, Recreation, and Urban Forestry Department
Friday, March 2, 2018
For further information regarding this RFP, contact:
Scott Endl
Director of Parks, Recreation, and Urban Forestry
(608) 270-4288
scott.endl@fitchburgwi.gov
Proposals must be submitted by:
4:00 p.m.
Friday, March 23, 2018
LATE PROPOSALS WILL BE REJECTED.
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RFP Fitchburg for Private For-Profit Use
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Request For Proposals Local food and Drink Concession – Select City of Fitchburg Parks
TABLE OF CONTENTS
1.0 GENERAL INFORMATION
1.1. BACKGROUND AND SUMMARY .......................................................... 1
1.2. OBJECTIVE ............................................................................................ 2
1.3 LOCATIONS ........................................................................................... 2
2.0 PROPOSAL
2.1. PROPOSAL SUBMISSION AND CONTACT INFORMATION ................ 5
2.2. PROPOSAL CONTENT .......................................................................... 6
2.3. PROPOSAL ORGANIZATION ................................................................ 7
2.4. PROPOSAL EVALUATOIN AND AWARD ............................................. 8
3.0 CONTRACT TERMS AND CONDITIONS
3.1. INSURANCE REQUIREMENTS .............................................................. 8
3.2. OWNERSHIP .......................................................................................... 8
3.2. CONFLICT OF INTEREST ...................................................................... 9
3.2. REGULATIONS ...................................................................................... 9
APPENDIX A – SAMPLE LANGUAGE – SELECTED PROPOSER(S) –
REQUIRED CONTRACTUAL PROVISIONS ......................................10
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Request For Proposals Local food and Drink Concession – Select City of Fitchburg Parks
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1.0 GENERAL INFORMATION
1.1 BACKGROUND AND SUMMARY
The City of Fitchburg (hereafter “City”) is a community of over 26,000 residents, sharing its
northern border with the southern border of the City of Madison, a community of approximately
250,000 residents.
Fitchburg is an economically
and racially diverse city,
containing over 22,000 acres
within its municipal borders,
with approximately 11,000
acres in agricultural use. The
City strives for “sustainable
and regenerative growth”,
with the ultimate end of
creating a desirable
community in which to live,
work, and play. Fitchburg has
an integrated regional
transportation network, varied
housing stock, a diverse
commercial/industrial base,
three quality public school
districts (Madison
Metropolitan, Verona Area,
and Oregon), and a
comprehensive parks,
outdoor recreation, and trail
system.
The City is seeking to
enhance its park system by providing a variety of recreational opportunities to a diverse user profile
while concurrently strengthening the local food system. In accordance with the City’s Parks, Open
Space, and Recreation Plan: 2015-2020 (Adopted: May 10, 2016), the City is exploring
opportunities for distribution of local food and/or drink products at select City of Fitchburg park
properties.
This Request for Proposals (hereafter "RFP”) calls for local food/drink entrepreneurs (hereafter
“Proposer(s)”) to submit proposals to operate one (1) or more local food and/or drink concessions
within select City of Fitchburg parks. The Proposer shall provide sufficient evidence that the
proposed concession will provide excellent customer service, quality food/drink products
substantially sourced from Wisconsin (where applicable), generate revenue in the form of
commission for the City’s park system, and represent the City and its park system in a positive light.
Examples of potential food/drink products to be sold through the concession include but are not
limited to the following a. – e.:
a. Beer and/or wine;
b. Coffee;
c. Sandwiches;
d. Pastries;
e. Ice cream;
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Request For Proposals Local food and Drink Concession – Select City of Fitchburg Parks
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The operation of the proposed concession is contingent on meeting all City requirements stated in
this RFP. The selected Proposer(s) shall enter into an annual contract with the City to operate said
concession (hereafter “Agreement”). Unless the Proposer proposes another form of compensation,
an annual fee, based on a fixed percentage of all pre-tax sales, shall be paid to the City. City of
Fitchburg park hours run from 6 a.m. to 10 p.m. The selected Proposer(s) concession shall not
operate outside of the aforementioned hours, with said concession subject to additional operating
hour restrictions.
This RFP does not call for nation-wide “franchises”, rather the City is seeking concession
enterprises in the form of “smaller-scale” food/drink businesses that utilize predominately locally-
sourced ingredients from Wisconsin (where applicable) to create food and/or drink products.
The selected Proposer(s) may be requested by the City to attend various public meetings, and
present their proposal before the Common Council, select City bodies, and the general public.
1.2 OBJECTIVE
The objective of this RFP is to grant a contract with a Proposer that successfully meets and exceeds
the requirements determined by the City, in accordance with the following a. – b.:
a. Proposer shall provide a variety of food and/or drink products predominately sourced from
Wisconsin (where applicable), in a manner welcoming of all customers including families;
b. Proposer shall promote the City of Fitchburg parks system through marketing and service,
contributing to the atmosphere of the parks in which the concession is located, and
attracting users to said parks;
1.3. LOCATIONS
City park properties (hereafter individually “Property” or collectively “Properties”) available for local
food/drink concessions, in accordance with this RFP, are as follows, a. – d.:
a. McKee Farms Park;
b. Dawley Conservancy;
c. Parks hosting organized recreational leagues/tournaments, including but not limited to
McGaw Park;
d. Other City parks in accordance with the map located at the following link:
http://www.fitchburgwi.gov/Facilities?clear=False
McKee Farms Park, Dawley Conservancy, and McGaw Park have high-user counts and are located
adjacent to major regional transportation corridors. This RFP calls for a more permanent
concession presence at McKee Farms Park and/or Dawley Conservancy, utilizing existing
or expanded facilities, and a more temporary, moveable presence, such as a food/drink cart
or truck operation, at parks hosting organized recreational leagues/tournament, including
McGaw Park. McKee Farms Park is the only location with the capacity (limited) for food
preparation. The RFP does not call for a specific type of proposal at any other City park.
The City Parks, Open Space and Recreation Plan calls for the development of use “themes” at
select City “signature” parks, including McKee Farms Park, Dawley Conservancy, and McGaw
Park. These “themes” are intended to focus on a few related uses and amenities at said parks, to
enhance identity and diverse recreational and economic development opportunities for the City, as
well as draw users to these parks from throughout the region. An important component of theme
development at these signature parks is the addition of local food/drink concession enterprises.
Proposers, at their discretion, may choose to formulate a proposal that enhances themes at McKee
Farms Park, Dawley Conservancy, and/or McGaw Park.
The following provides further detail on potential concession locations:
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Request For Proposals Local food and Drink Concession – Select City of Fitchburg Parks
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a. McKee Farms Park: This park
is designated with a “central
park” theme and is located
south of McKee Road and west
of Fish Hatchery Road. This
58.1-acre property is the City’s
most heavily-used park, is
centrally-located, and has a
large pavilion suitable for
food/drink service (prep space,
sink, refrigerator/freezer,
microwave, and service
window), a splash pad,
playgrounds, basketball courts,
soccer fields, ball diamonds,
tennis courts, a path system,
and restrooms. Additionally,
this park hosts regional festivals
including Fitchburg Days and
Festa Italia.
b. Dawley Conservancy – This nature park is
designated with a “biking” theme and is located north
of McKee Road, both east and west of Seminole
Highway. This 38.9-acre property contains an
observation deck with restrooms, path system, bike
repair/maintenance station and informational kiosk.
The Dawley Bike Hub, the convergence of five (5)
major recreational trails, the Badger State Trail,
Capital City State Trail, Military Ridge State Trail,
Southwest Commuter Path, and Cannonball Path, is
also located at the conservancy. The Madison Area
Transportation Planning Board undertook a 2-hour
(4:00 – 6:00 p.m.) bicycle count, comprising 169 trail
users, at the Bike Hub on a Tuesday in May 2015.
McKee Farms Park Pavilion
Source: City of Fitchburg
McKee Farms Park Splash Pad
Source: City of Fitchburg
McKee Farms Park Location
Source: City of Fitchburg
McKee Farms Park Pavilion Prep Space
Source: City of Fitchburg
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Request For Proposals Local food and Drink Concession – Select City of Fitchburg Parks
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c. Parks hosting regular organized
leagues, including but not limited to
McGaw Park – McGaw Park is designated
with a “sport fields” theme is located south
of Lacy Road and west of S. Syene Road.
This 65-acre property is a heavily-used
park, with an ultimate frisbee field, four
lighted ball diamonds, shelter, playground,
basketball court, tennis courts, path
system, and restrooms. Additionally, this
park hosts adult softball leagues, an
ultimate Frisbee league, and multiple
tournaments throughout the year.
d. Other City of Fitchburg parks – The City
has a wide variety of other parks with various
amenities. The locations of these other parks
can be viewed at the following link:
http://www.fitchburgwi.gov/Facilities?clear=False
Dawley Bike Hub
Source: The Capital Times
Dawley Conservancy
Observation Deck
Source: City of Fitchburg
Dawley Conservancy Restrooms
Source: City of Fitchburg
Dawley Conservancy Location
Source: City of Fitchburg
McGaw Park Location
Source: City of Fitchburg
McGaw Park Ball Fields
Source: City of Fitchburg
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Request For Proposals Local food and Drink Concession – Select City of Fitchburg Parks
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___________________________________________________________________________________
2.0 PROPOSAL
2.1. PROPOSALSUBMISSION AND CONTACT INFORMATION
Proposers shall submit one (1) electronic version of all materials required for acceptance of their
proposal by 4:00 p.m. Friday, March 23, 2018, to the following email:
Scott Endl, Director of Parks, Recreation, and Urban Forestry
City of Fitchburg
Email: scott.endl@fitchburgwi.gov
If the Proposal is larger than 10 megabytes, please use the following “dropbox” URL to submit an
electronic version of all materials: https://dropbox.fitchburgwi.gov/ (register)
Please include the following as a subject line in submittal of your materials: Local Food and Drink
Concession Submittal – Select City of Fitchburg Parks.
No oral, fax, or telephone proposals will be accepted. All costs directly or indirectly related to
preparation of a proposal in response to this RFP or any oral presentation required to supplement
or clarify a proposal shall be the sole responsibility of the Proposer. This includes charges for
delivery, insurance, license fees, permits, preparation costs, and any other costs. All proposals
submitted shall be valid for a minimum period of ninety (90) days after the date of the proposal
opening.
Late proposals will not be considered for review. The City reserves the right to determine the
timeliness of all proposals submitted. The City reserves the right to extend the deadline for proposal
submission should such action be in the best interest of the City.
In the event the proposal submission deadline is extended, Proposers will have the right to revise
their proposal. Proposals may be withdrawn by written request, signed by an authorized
representative of the submitting entity, and submitted to City prior to the scheduled closing time for
receipt of proposals.
Submission of a proposal pursuant to this RFP shall constitute acknowledgement and acceptance
of the terms and conditions set forth herein. AlI or portions of this RFP and the contents of the
proposal submitted by the successful Proposer may become contractual obligation if an Agreement
is awarded. Failure of the successful Proposer to accept these obligations may result in cancellation
of the award. The City reserves the right to either reject any or all proposals if it deems such to be
in the best interest of the County and the general public, or to withdraw this RFP at any time without
prior notice for any reason, without making an award, if it deems such to be in the best interest of
the City and the general public. All proposals submitted in response to this RFP shall become the
property of the City.
Any questions concerning this RFP should be directed to the following, in written form via e-mail or
standard mail:
Scott Endl, Director of Parks, Recreation, and Urban Forestry
City of Fitchburg
5520 Lacy Road
Fitchburg, WI 53711
Email: scott.endl@fitchburgwi.gov
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Request For Proposals Local food and Drink Concession – Select City of Fitchburg Parks
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Reponses to all questions and any revisions/amendments and/or supplements to the RFP will be
provided to all those recipients that received this RFP directly from the City, and those that
received this RFP from a party authorized to distribute this RFP by the City.
2.2 PROPOSAL CONTENT
Proposals are to be prepared in such a way as to provide a straightforward, concise delineation of
capabilities to satisfy the requirements of this RFP. Proposals shall not exceed twenty (20) pages.
Expensive bindings and promotional materials are not necessary or desired. Emphasis should be
concentrated on conformance to the RFP instructions, responsiveness to the RFP requirements,
and clarity of content. Proposers shall respond to all questions as thoroughly as possible. Any
omission or deviation from the stipulations and requirements identified in this RFP may be cause
for the rejection of the entire proposal.
All proposals shall contain all of the following elements, a. – g.:
a. COVER LETTER, to include all of the following:
i. Identification of key personnel, including title and position;
ii. Mailing address, phone/fax number, and email address for primary proposal contact;
iii. A statement that the Proposer confirms its acknowledgement and acceptance of the
terms and conditions set forth herein, without exceptions, or with exceptions as
noted in 2.2 g. herein;
b. BUSINESS INFORMATION, to include all of the following:
i. Full legal name and primary mailing address of company;
ii. Organizational structure of the company (i.e. corporation, partnership, joint venture,
or sole proprietorship):
iii. Company stability, to include the following:
a. Name and location of the food/drink enterprise;
b. Number of years operating a food/drink enterprise;
c. Number of years holding either a Class B or liquor license (if applicable);
d. License number and the jurisdiction granting said license (if applicable);
e. Number of employees proposed at the potential concession enterprise
identified in the proposal;
c. DESIRED PROPERTIES AND POTENTIAL FOOD/DRINK PRODUCTS, to include all
of the following:
i. Rank the top three (3) Properties, as identified in 1.3 herein, in order of desirability
for proposed concession enterprise (i.e. 1. most desirable);
ii. List the top fifteen (15) food/drink products to be sold through the concession,
including suggested retail price. Please include size and weight of products in
ounces (if applicable).
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d. PROPOSED PROPERTY INFRASTRUCTURE USE AND IMPROVEMENTS, to include
all of the following:
i. Identification of use of existing Property infrastructure (pavilions, shelters, etc.);
ii. If applicable, identification of proposed new Property infrastructure and landscaping,
to include detailed building and landscaping plans, and cost estimates thereof;
iii. If applicable, a timeline for the completion of proposed new Property infrastructure
and landscaping;
e. MARKETING PLAN, to include all of the following:
i. Describe how the proposed concession enterprise will be marketed and how said
concession will enhance the Property. Please include specifics related to
advertising, signage, on-line websites, etc.
f. FINANCIAL OFFER, to include all of the following:
i. A statement indicating the vendor shall pay the City an annual Property lease fee,
based on a percent of annual gross receipts* from the concession, or another form
of compensation, to be suggested by the Proposer, for the term of the Agreement:
* "Gross Receipts" is defined as the total of all receipts (cash, checks, credit cards) derived from the
rental or sales of all merchandise associated with the concession, less sales tax. Deductions for client
non-payments or bad-debt expenses are not allowed.
g. EXCEPTIONS, to include all of the following:
i. If the Proposer takes exception or requires clarification on any points of the RFP
before signing an Agreement with the City, please list items. With each exception,
please state proposed wording. All proposed exceptions are subject to the discretion
and approval of the City. Should the Proposer and the City be unable to resolve any
exceptions to the mutual satisfaction of both parties, the City reserves the right to
reject the Proposer’s proposal from any further consideration.
If no exceptions are listed in the proposal submitted in response to this RFP,
Proposer indicates agreement to all terms and conditions contained in this RFP,
including all appendices.
If exceptions are listed in said proposal, the Proposer agrees to all terms and
conditions contained in this RFP, with those noted exceptions.
2.3 PROPOSAL ORGANIZATION
To expedite proposal evaluation and selection, each Proposer shall organize its proposal as described
in the following. Proposals which do not follow the specified organization outlined in the following may
be deemed incomplete and disqualified from the proposal evaluation and award process.
All required proposal elements shall be labeled clearly with a text heading as identified
below, a. – g. (with the exception of the cover letter):
a. Cover Letter;
b. Business Information;
c. Desired Properties and Potential Food/Drink Products;
d. Proposed Property Use and Infrastructure Improvements;
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e. Marketing Plan;
f. Financial Offer;
g. Exceptions;
Furthermore, proposal content under the aforementioned a. – g. shall be organized under
letter and Roman numeral headings as identified in 2.2 herein. Proposals shall be submitted
in electronic format and shall not exceed twenty (20) pages.
2.4 PROPOSAL EVALUATION AND AWARD
The City reserves the right to request additional information to clarify a submitted proposal.
Furthermore, the City reserves the right to conduct such investigations as it considers appropriate
with respect to the qualifications of each Proposer and any information contained in its proposal.
All complete and accurate proposals will be reviewed by a selection committee who shall make a
recommendation to the City of Fitchburg Parks Commission for award of a concession
agreement(s). In seeking the best and highest quality of services, the following criteria, a. – e., shall
be utilized in proposal evaluations, with each proposal scored and ranked in accordance with said
criteria. No one criterion or combination of criteria will be controlling in the selection process.
a. Qualifications and experience of the Proposer in providing food/drink concessions;
b. Aesthetic appeal and uniqueness of the proposed concession as it relates to enhancing
the Property and user profile thereof;
c. The extent that the products are locally-sourced (where applicable), quality of products,
and reasonableness of pricing;
d. Marketing plan;
e. Revenue to the City;
Select Proposers may be required to make oral presentations to supplement their proposals, if
requested by the City. Oral presentations shall be conducted March 27 - 29, 2018, if needed. The
City may choose to conduct these interviews by conference call. The City will make every
reasonable attempt to schedule each presentation at a time agreeable to the Proposer.
Failure of a Proposer to conduct a presentation to the City on the date scheduled may result in
rejection of the proposal.
The City reserves the right to waive any or all irregularities in the RFP process; to reject any or all
proposals if it deems such to be in the best interest of the City and the general public; to cancel this
RFP at any time for any reason without making an award if it deems such to be in the best interest
of the City and the general public; or to make an award for a longer or shorter period than as
indicated in 1.1 herein.
_________________________________________________________________________________
3.0 Contract Terms and Conditions
3.1 INSURANCE REQUIREMENTS
The selected Proposer(s) must meet the City of Fitchburg Insurance Requirements.
3.2 OWNERSHIP
All documents, graphics, maps, and exhibits produced by the selected Proposer(s) as part of a
proposal in response to this RFP shall be provided to the City, become the property of the City, and
are to be available to the City in any manner the City deems appropriate.
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3.3 CONFLICT OF INTEREST
The Proposer certifies that to the best of its knowledge no employee of the City, nor any member
thereof, nor any public agency or official affected by any Agreement that results from this RFP, has
any pecuniary interest in the business of the Proposer, and that no person associated with the
Proposer has any interest that would conflict in any manner with the performance of the Agreement.
3.4. REGULATIONS
The Proposal shall meet all current, pending and future regulatory requirements of all authorities
having jurisdiction over its design, construction and operation, including the Federal, State and
local laws and statutes including Dane County and the City.
The Proposer shall fully comply with all applicable laws, regulations, and building codes governing
non-discrimination in public accommodations and commercial facilities, including without limitation,
the requirements of the Americans with Disabilities Act and all regulations thereunder. No
Agreement shall be awarded to any person, firm, joint venture, or corporation that is in arrears or
is in default to the City upon any debt or contract or that is a defaulter as surety or otherwise upon
any obligation to the City.
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APPENDIX A.
SAMPLE LANGUAGE - SELECTED PROPOSER(S) –
REQUIRED CONTRACTUAL PROVISIONS
4.0 REQUIRED CONTRACTUAL PROVISIONS
The following, 4.1 – 4.9, are selected areas of contractual provisions which will be required of the selected
Proposer(s). Any award of contract resulting in an Agreement between the City and a Proposer will be
"exclusive" as to food and drink concession at the selected Properties only. The City reserves the right to
award a contract with one (1) or more additional Proposers to provide food/drink in other areas of the
Properties.
4.1 TERM
The term of the Agreement shall be for one (1) year, effective on the date of execution, with a
possibility for additional consecutive one (1) year options, if mutually agreeable to the City and
Proposer (hereafter “Parties”).
4.2 HOURS OF OPERATION
The Parties agree to negotiate the hours of operation, days of service, and length of the operating
season, which approvals shall not be unreasonably conditioned or delayed. The Parties agree to
meet prior to June 1 to mutually agree upon the days and hours of operation.
4.3 INSURANCE
The selected Proposer shall acquire and maintain the established insurance and liability limits for
this Concession. Such evidence shall include insurance coverage in the following minimum
amounts:
a. Type of Coverage/Minimum Limits
i. Commercial General Liability: $1,000,000 Per Occurrence;
ii. Bodily Injury and Property Damage (including Personal Injury, Fire Legal, Contractual
& Products/Completed Operations) $1,000,000 General Aggregate;
i. Liquor Liability $1,000,000;
ii. Automobile Liability: Bodily Injury & Property Damage: $1,000,000 per
Accident;
iii. All Autos-Owned, non-owned and/or hired and uninsured motorists: Per Wisconsin
requirements;
iv. Wisconsin Workers' Compensation or Proof of AlI States Coverage:
Statutory;
v. Employers' Liability $100,000/$500,000/$100,000;
b. The City will be named as an additional insured for General Liability and Automobile Liability.
A waiver of subrogation for Workers Compensation by endorsement in favor of the City shall
be provided. Disclosure must be made of any non-standard or restrictive additional insured
endorsement, and any use of non-standard or restrictive additional insured endorsement will
not be acceptable. A certificate indicating the above coverages shall be submitted for review
and approval by the City.
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4.4 PUBLIC ACCESS
The Proposer understands that the premises is part of a public park and is to remain open and
accessible to the public in a manner that is compatible with the use of the facilities as contemplated
by the Agreement.
4.5 TAXES
The Proposer shall pay all taxes of whatever character which may be levied, or per Wisconsin
requirements, charged upon the Proposer to use the Property and its facilities, or upon the
improvements, fixtures, equipment or other property, or upon the operations under the Agreement.
4.6 CLEANLINESS
Proposer shall, at its own expense, keep the premises and the surrounding area, at least twenty-
five (25) feet, clean and sanitary at all times. No offensive or refuse matter, nor any substance
constituting an unnecessary, unreasonable, or unlawful hazard, nor any material detrimental to the
public health, shall be permitted to remain thereon, and vendor shall prevent any such matter or
material from being or accumulating upon said premises. Proposer, at its own expense, shall see
that all garbage or refuse is collected as often as necessary and in no case less than once a day
and disposed of in the City receptacles. The Proposer will incur the cost of all excessive garbage
pick-up from the Concession during the term of the Agreement.
4.7 EQUIPMENT MAINTENANCE
Proposer shall, at all times and at its own expense, keep and maintain all equipment, whether
owned or installed by Proposer or the City, such as, but not limited to, all of the fixtures, plate and
mirror glass, equipment, and personal property therein, in good repair and in a clean, sanitary, and
orderly condition and appearance. No equipment provided by the City shall be removed or replaced
by Proposer without the prior written consent of the City Parks, Recreation, and Urban Forestry
Director, and if consent if secured, such removal or replacement shall be at the expense of
Proposer.
4.8 CONCESSIONARE OBLIGATIONS
The Proposer shall be obligated to the following, a. – m.:
a. Provide food, drink, and other concessionable products and services to meet or exceed
the needs and expectations of the public and the City;
b. Meet all local health code requirements;
c. Obtain all necessary permits and licensing for the operation of a food/drink concession;
d. Provide any equipment necessary for the proposed concession that is not already provided
by the City;
e. Reimburse the City for any repairs of the Property or equipment due to the negligence of
the Proposer or its employees;
f. Maintain all equipment and surroundings in a state of cleanliness and repair to prevent
injuries to the public;
g. Be responsible for keeping the concession facility and the immediate outside area free of
trash and litter;
h. Operate as an independent contractor responsible for all applicable taxes, including sales
tax and withholding tax;
i. By a date agreed upon by the Proposer and the City, furnish a detailed monthly statement
of receipt (format to be agreed upon) along with the commission payments to the City;
j. Provide all advertising and signage for the operation of the concession;
k. Allow for inspection by the appropriate City staff at all times;
l. Comply with all current City practices, including compliance with current City agreements,
and forgoing the sale of glass bottles, gum, and tobacco products;
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A REQUEST FOR PROPOSAL (RFP) FOR:
LOCAL FOOD AND DRINK CONCESSION
FOR CITY OF MUSKEGO AT IDLE ISLE PARK
Issued by:
City of Muskego
Friday, March 2, 2018
For further information regarding this RFP, contact:
Scott Kroeger
Public Works and Development Director
(262) 679-5686
skroeger@cityofmuskego.org
Proposals must be submitted by:
4:00 p.m.
Friday, March 23, 2018
LATE PROPOSALS WILL BE REJECTED.
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TABLE OF CONTENTS
1.0 GENERAL INFORMATION
1.1 BACKGROUND AND SUMMARY 3
1.2 OBJECTIVE 4
1.3 LOCATION 4
2.0 PROPOSAL
2.1 PROPOSAL SUBMISSION AND CONTACT INFORMATION 5
2.2 PROPOSAL CONTENT 6
2.3 PROPOSAL ORGANIZATION 7
2.4 PROPOSAL EVALUATION AND AWARD 8
3.0 CONTRACT TERMS AND CONDITIONS
3.1 INSURANCE REQUIREMENTS 9
3.2 OWNERSHIP 9
3.2 CONFLICT OF INTEREST 9
3.2 REGULATIONS 9
APPENDIX A – SAMPLE LANGUAGE – SELECTED PROPOSER(S) –
REQUIRED CONTRACTUAL PROVISIONS 10
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1.0 GENERAL INFORMATION
1.1 BACKGROUND AND SUMMARY
The City of Muskego (hereafter “City”) is a community of approximately 25,000 residents.
This Request for Proposals (hereafter "RFP”) calls for local food/drink entrepreneurs (hereafter
“Proposer(s)”) to submit proposals to operate one (1) local food and/or drink concessions within
City of Muskego Idle Isle Park. The Proposer shall provide sufficient evidence that the proposed
concession will provide excellent customer service, quality food/drink products substantially
sourced from Wisconsin (where applicable), generate revenue in the form of commission for the
City’s park system, and represent the City and its park system in a positive light.
Examples of potential food/drink products to be sold through the concession include but are not
limited to the following a. – f.:
a. Beer and/or wine;
b. Coffee;
c. Sandwiches;
d. Pastries;
e. Ice cream;
f. Soda
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The operation of the proposed concession is contingent on meeting all City requirements stated
in this RFP. The selected Proposer(s) shall enter into an annual contract with the City to operate
said concession (hereafter “Agreement”). Unless the Proposer proposes another form of
compensation, an annual fee, based on a fixed percentage of all pre-tax sales, shall be paid to
the City. City of Muskego park hours run from 6 a.m. to 10 p.m. The selected Proposer(s)
concession shall not operate outside of the aforementioned hours, with said concession subject
to additional operating hour restrictions.
This RFP does not call for nation-wide “franchises”, rather the City is seeking concession
enterprises in the form of “smaller-scale” food/drink businesses that utilize predominately
locally-sourced ingredients from Wisconsin (where applicable) to create food and/or drink
products.
The selected Proposer(s) may be requested by the City to attend various public meetings, and
present their proposal before the Common Council, select City bodies, and the general public.
1.2 OBJECTIVE The objective of this RFP is to grant a contract with a Proposer that
successfully meets and exceeds the requirements determined by the City, in accordance with
the following a. – b.:
a. Proposer shall provide a variety of food and/or drink products predominately sourced from
Wisconsin (where applicable), in a manner welcoming of all customers including families;
b. Proposer shall promote the City of Muskego parks system through marketing and service,
contributing to the atmosphere of the parks in which the concession is located, and attracting
users to said parks;
1.3. LOCATION
City park property (hereafter individually “Property”) available for local food/drink concessions, in
accordance with this RFP, is as follows, a
a. Idle Isle Park;
Idle Isle has a high-user count and is located on Little Muskego Lake. It is located on an island
with one access point. The island has limited parking and the main boat launch for Little
Muskego Lake.
This RFP calls for a more permanent concession presence at Idle Isle, utilizing existing or
expanded facilities. It is recommended the proposer proposes a “theme”. The “theme” is
intended to focus on a few related uses and amenities at said parks, to enhance identity and
diverse recreational and economic development opportunities for the City, as well as draw users
to these parks from throughout the region. An important component of theme development at
this signature parks is the addition of local food/drink concession enterprises.
The potential concession location is the existing pavilion at Idle Isle.
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2.0 PROPOSAL
2.1. PROPOSALSUBMISSION AND CONTACT INFORMATION Proposers shall submit one
(1) electronic version of all materials or hard copy required for acceptance of their proposal by
4:00 p.m. Friday, March 23, 2018, to the following email:
Scott Kroeger
Public Works and Development Director
(262) 679-5686
skroeger@cityofmuskego.org
Please include the following as a subject line in submittal of your materials: Local Food and
Drink Concession Submittal – City of Muskego Idle Isle Park.
No oral, fax, or telephone proposals will be accepted. All costs directly or indirectly related to
preparation of a proposal in response to this RFP or any oral presentation required to
supplement or clarify a proposal shall be the sole responsibility of the Proposer. This includes
charges for delivery, insurance, license fees, permits, preparation costs, and any other costs. All
proposals submitted shall be valid for a minimum period of ninety (90) days after the date of the
proposal opening.
Late proposals will not be considered for review. The City reserves the right to determine the
timeliness of all proposals submitted. The City reserves the right to extend the deadline for
proposal submission should such action be in the best interest of the City.
In the event the proposal submission deadline is extended, Proposers will have the right to
revise their proposal. Proposals may be withdrawn by written request, signed by an authorized
representative of the submitting entity, and submitted to City prior to the scheduled closing time
for receipt of proposals.
Submission of a proposal pursuant to this RFP shall constitute acknowledgement and
acceptance of the terms and conditions set forth herein.
AlI or portions of this RFP and the contents of the proposal submitted by the successful
Proposer may become contractual obligation if an Agreement is awarded. Failure of the
successful Proposer to accept these obligations may result in cancellation of the award. The
City reserves the right to either reject any or all proposals if it deems such to be in the best
interest of the City and the general public, or to withdraw this RFP at any time without prior
notice for any reason, without making an award, if it deems such to be in the best interest of the
City and the general public. All proposals submitted in response to this RFP shall become the
property of the City.
Any questions concerning this RFP should be directed to the following, in written form via e-mail
or standard mail:
Scott Kroeger
Public Works and Development Director
(262) 679-5686
skroeger@cityofmuskego.org
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Reponses to all questions and any revisions/amendments and/or supplements to the RFP will
be provided to all those recipients that received this RFP directly from the City, and those that
received this RFP from a party authorized to distribute this RFP by the City.
2.2 PROPOSAL CONTENT
Proposals are to be prepared in such a way as to provide a straightforward, concise delineation
of capabilities to satisfy the requirements of this RFP. Proposals shall not exceed twenty (20)
pages. Expensive bindings and promotional materials are not necessary or desired. Emphasis
should be concentrated on conformance to the RFP instructions, responsiveness to the RFP
requirements, and clarity of content. Proposers shall respond to all questions as thoroughly as
possible. Any omission or deviation from the stipulations and requirements identified in this RFP
may be cause for the rejection of the entire proposal.
All proposals shall contain all of the following elements, a. – g.:
a. COVER LETTER, to include all of the following:
i. Identification of key personnel, including title and position;
ii. Mailing address, phone/fax number, and email address for primary proposal contact;
iii. A statement that the Proposer confirms its acknowledgement and acceptance of the terms
and conditions set forth herein, without exceptions, or with exceptions as noted in 2.2 g. herein;
b. BUSINESS INFORMATION, to include all of the following:
i. Full legal name and primary mailing address of company;
ii. Organizational structure of the company (i.e. corporation, partnership, joint venture, or sole
proprietorship):
iii. Company stability, to include the following:
a. Name and location of the food/drink enterprise;
b. Number of years operating a food/drink enterprise;
c. Number of years holding either a Class B or liquor license (if applicable);
d. License number and the jurisdiction granting said license (if applicable);
e. Number of employees proposed at the potential concession enterprise identified in the
proposal;
c. POTENTIAL FOOD/DRINK PRODUCTS, to include all of the following:
i. List the top fifteen (15) food/drink products to be sold through the concession, including
suggested retail price. Please include size and weight of products in ounces (if applicable).
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d. PROPOSED PROPERTY INFRASTRUCTURE USE AND IMPROVEMENTS, to include all
of the following:
i. Identification of use of existing Property infrastructure (pavilions, shelters, etc.);
ii. If applicable, identification of proposed new Property infrastructure and landscaping, to
include detailed building and landscaping plans, and cost estimates thereof;
iii. If applicable, a timeline for the completion of proposed new Property infrastructure and
landscaping;
e. MARKETING PLAN, to include all of the following:
i. Describe how the proposed concession enterprise will be marketed and how said concession
will enhance the Property. Please include specifics related to advertising, signage, on-line
websites, etc.
f. FINANCIAL OFFER, to include all of the following:
i. A statement indicating the vendor shall pay the City an annual Property lease fee, based
on a percent of annual gross receipts* from the concession, or another form of
compensation, to be suggested by the Proposer, for the term of the Agreement:
ii. If the percent of annual gross receipts less than $_______ a rental fee of
$___________ shall be charged.
* "Gross Receipts" is defined as the total of all receipts (cash, checks, credit cards) derived from the rental or sales of
all merchandise associated with the concession, less sales tax. Deductions for client non-payments or bad-debt
expenses are not allowed.
g. EXCEPTIONS, to include all of the following:
i. If the Proposer takes exception or requires clarification on any points of the RFP before
signing an Agreement with the City, please list items. With each exception, please state
proposed wording. All proposed exceptions are subject to the discretion and approval of the
City. Should the Proposer and the City be unable to resolve any exceptions to the mutual
satisfaction of both parties, the City reserves the right to reject the Proposer’s proposal from any
further consideration.
If no exceptions are listed in the proposal submitted in response to this RFP, Proposer indicates
agreement to all terms and conditions contained in this RFP, including all appendices.
If exceptions are listed in said proposal, the Proposer agrees to all terms and conditions
contained in this RFP, with those noted exceptions.
2.3 PROPOSAL ORGANIZATION
To expedite proposal evaluation and selection, each Proposer shall organize its proposal as
described in the following. Proposals which do not follow the specified organization outlined in
the following may be deemed incomplete and disqualified from the proposal evaluation and
award process.
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All required proposal elements shall be labeled clearly with a text heading as identified
below, a. – g. (with the exception of the cover letter):
a. Cover Letter;
b. Business Information;
c. Potential Food/Drink Products;
d. Proposed Property Use and Infrastructure Improvements;
e. Marketing Plan;
f. Financial Offer;
g. Exceptions;
Furthermore, proposal content under the aforementioned a. – g. shall be organized under
letter and Roman numeral headings as identified in 2.2 herein. Proposals shall be
submitted in electronic format and shall not exceed twenty (20) pages.
2.4 PROPOSAL EVALUATION AND AWARD
The City reserves the right to request additional information to clarify a submitted proposal.
Furthermore, the City reserves the right to conduct such investigations as it considers
appropriate with respect to the qualifications of each Proposer and any information contained in
its proposal.
All complete and accurate proposals will be reviewed by the Parks and Conservation committee
who shall make a recommendation to the City of Muskego Finance Committee for award of a
concession agreement(s). In seeking the best and highest quality of services, the following
criteria, a. – e., shall be utilized in proposal evaluations, with each proposal scored and ranked
in accordance with said criteria. No one criterion or combination of criteria will be controlling in
the selection process.
a. Qualifications and experience of the Proposer in providing food/drink concessions;
b. Aesthetic appeal and uniqueness of the proposed concession as it relates to enhancing the
Property and user profile thereof;
c. The extent that the products are locally-sourced (where applicable), quality of products, and
reasonableness of pricing;
d. Marketing plan;
e. Revenue to the City;
Select Proposers may be required to make oral presentations to supplement their proposals, if
requested by the City. Oral presentations shall be conducted March 27 - 29, 2018, if needed.
The City may choose to conduct these interviews by conference call. The City will make every
reasonable attempt to schedule each presentation at a time agreeable to the Proposer.
Failure of a Proposer to conduct a presentation to the City on the date scheduled may result in
rejection of the proposal.
The City reserves the right to waive any or all irregularities in the RFP process; to reject any or
all proposals if it deems such to be in the best interest of the City and the general public; to
cancel this RFP at any time for any reason without making an award if it deems such to be in
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the best interest of the City and the general public; or to make an award for a longer or shorter
period than as indicated in 1.1 herein.
3.0 Contract Terms and Conditions
3.1 INSURANCE REQUIREMENTS
The selected Proposer(s) must meet the City of Muskego Insurance Requirements.
3.2 OWNERSHIP
All documents, graphics, maps, and exhibits produced by the selected Proposer(s) as part of a
proposal in response to this RFP shall be provided to the City, become the property of the City,
and are to be available to the City in any manner the City deems appropriate.
3.3 CONFLICT OF INTEREST
The Proposer certifies that to the best of its knowledge no employee of the City, nor any
member thereof, nor any public agency or official affected by any Agreement that
results from this RFP, has any pecuniary interest in the business of the Proposer, and
that no person associated with the Proposer has any interest that would conflict in any
manner with the performance of the Agreement.
3.4. REGULATIONS
The Proposal shall meet all current, pending and future regulatory requirements of all
authorities having jurisdiction over its design, construction and operation, including the
Federal, State and local laws and statutes including Waukesha County and the City.
The Proposer shall fully comply with all applicable laws, regulations, and building codes
governing non-discrimination in public accommodations and commercial facilities,
including without limitation, the requirements of the Americans with Disabilities Act and
all regulations thereunder. No Agreement shall be awarded to any person, firm, joint
venture, or corporation that is in arrears or is in default to the City upon any debt or
contract or that is a defaulter as surety or otherwise upon any obligation to the City.
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APPENDIX A.
SAMPLE LANGUAGE - SELECTED PROPOSER(S) –
REQUIRED CONTRACTUAL PROVISIONS
4.0 REQUIRED CONTRACTUAL PROVISIONS
The following, 4.1 – 4.9, are selected areas of contractual provisions which will be required of
the selected Proposer(s). Any award of contract resulting in an Agreement between the City and
a Proposer will be "exclusive" as to food and drink concession at the selected Properties only.
The City reserves the right to award a contract with one (1) or more additional Proposers to
provide food/drink in other areas of the Properties.
4.1 TERM
The term of the Agreement shall be for one (1) year, effective on the date of execution, with a
possibility for additional consecutive one (1) year options, if mutually agreeable to the City and
Proposer (hereafter “Parties”).
4.2 HOURS OF OPERATION
The Parties agree to negotiate the hours of operation, days of service, and length of the
operating season, which approvals shall not be unreasonably conditioned or delayed. The
Parties agree to meet prior to April 1 to mutually agree upon the days and hours of operation.
4.3 INSURANCE
In order to protect against potential liability arising out of the activities performed hereunder,
contractor shall obtain and maintain, in full force and effect, comprehensive general liability
insurance with minimum limits of $1,000,000 per occurrence and $1,000,000 aggregate. Said
insurance may not be cancelled, reduced or changed in any way without at least thirty (30) day
written notice to the City. Failure to provide proper notice, in and of itself, shall be grounds for
termination of this agreement. Contractor shall obtain Certificates of Insurance as well as
Endorsements to its insurance policies as follows:
30 day notice of cancellation.
Contractor’s primary insurance.
Waiver of rights of recovery against others to us.
Naming the City as an additional insured.
Contractor hereby agrees to indemnify, defend and hold harmless the City of Muskego, its
elected and appointed officials, officers, employees, agents, representatives and volunteers,
and each of them, from and against any and all suits, actions, legal or administrative
proceedings, claims, demands, damages, liabilities, interest, attorney’s fees, costs, and
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expenses of whatsoever kind or nature in any manner directly or indirectly caused, occasioned,
or contributed to in whole or in part or claimed to be caused, occasioned, or contributed to in
whole or in part, by reason of any act, omission, fault, or negligence, whether active or passive,
of Contractor or of anyone acting under its direction or control or on its behalf, even if liability is
also sought to be imposed on City of Muskego, its elected and appointed officials, officers,
employees, agents, representatives and volunteers. The obligation to indemnify, defend and
hold harmless the City of Muskego, its elected and appointed officials, officers, employees,
agents, representatives and volunteers, and each of them, shall be applicable unless liability
results from the sole negligence of the City of Muskego, its elected and appointed officials,
officers, employees, agents, representatives and volunteers.
Contractor shall reimburse the City of Muskego, its elected and appointed officials, officers,
employees, agent or authorized representatives or volunteers for any and all legal expenses
and costs incurred by each of them in connection therewith or in enforcing the indemnity herein
provided.
In the event that Contractor employs other persons, firms, corporations or entities (sub-
contractor) as part of the work covered by this Agreement, it shall be The Sole responsibility to
require and confirm that each sub-contractor enters into and Indemnity Agreement in favor of
the City of Muskego, its elected and appointed officials, officers, employees, agents,
representatives and volunteers, which is identical to this Indemnity Agreement.
This indemnity provision shall survive the termination or expiration of this Agreement.
4.4 CONSEQUENCES FOR NOT COMPLYING WITH THE SCOPE OF THE WORK:
A. A substantiated case of non-compliance will be addressed to the contact person
representing the contractual service by the City.
B. A contractor's response deemed adequate by the City will be accepted and noted should a
future situation develop.
C. A contractor's response deemed inadequate by the City will result in the immediate
termination of the contractual service.
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4.5 PUBLIC ACCESS
The Proposer understands that the premises is part of a public park and is to remain open and
accessible to the public in a manner that is compatible with the use of the facilities as
contemplated by the Agreement.
4.6 TAXES
The Proposer shall pay all taxes of whatever character which may be levied, or per Wisconsin
requirements, charged upon the Proposer to use the Property and its facilities, or upon the
improvements, fixtures, equipment or other property, or upon the operations under the
Agreement.
4.7 CLEANLINESS
Proposer shall, at its own expense, keep the premises and the surrounding area, at least
twenty-five (25) feet, clean and sanitary at all times. No offensive or refuse matter, nor any
substance constituting an unnecessary, unreasonable, or unlawful hazard, nor any material
detrimental to the public health, shall be permitted to remain thereon, and vendor shall prevent
any such matter or material from being or accumulating upon said premises. Proposer, at its
own expense, shall see that all garbage or refuse is collected as often as necessary and in no
case less than once a day and disposed of in the City receptacles. The Proposer will incur the
cost of all excessive garbage pick-up from the Concession during the term of the Agreement.
4.8 EQUIPMENT MAINTENANCE
Proposer shall, at all times and at its own expense, keep and maintain all equipment, whether
owned or installed by Proposer or the City, such as, but not limited to, all of the fixtures, plate
and mirror glass, equipment, and personal property therein, in good repair and in a clean,
sanitary, and orderly condition and appearance. No equipment provided by the City shall be
removed or replaced by Proposer without the prior written consent of the City, and if consent if
secured, such removal or replacement shall be at the expense of Proposer.
4.9 CONCESSIONARE OBLIGATIONS
The Proposer shall be obligated to the following, a. – l.:
a. Provide food, drink, and other concessionable products and services to meet or exceed the
needs and expectations of the public and the City;
b. Meet all local health code requirements;
c. Obtain all necessary permits and licensing for the operation of a food/drink concession;
d. Provide any equipment necessary for the proposed concession that is not already provided
by the City;
e. Reimburse the City for any repairs of the Property or equipment due to the negligence of the
Proposer or its employees;
f. Maintain all equipment and surroundings in a state of cleanliness and repair to prevent injuries
to the public;
g. Be responsible for keeping the concession facility and the immediate outside area free of
trash and litter;
h. Operate as an independent contractor responsible for all applicable taxes, including sales tax
and withholding tax;
i. By a date agreed upon by the Proposer and the City, furnish a detailed monthly statement of
receipt (format to be agreed upon) along with the commission payments to the City;
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j. Provide all advertising and signage for the operation of the concession;
k. Allow for inspection by the appropriate City staff at all times;
l. Comply with all current City practices, including compliance with current City agreements, and
forgoing the sale of glass bottles, gum, and tobacco products;
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EXHIBIT 1
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FOOD, BEVERAGE, AND GIFT SHOP CONCESSION AGREEMENT
THIS AGREEMENT, by and between CITY OF WICHITA FALLS, TEXAS, a
municipal corporation principally situated in Wichita County, ("City") and
_________________________, “Company”) a corporation existing under the laws of
the State of TEXAS whose address is listed in Section 17.2.
W I T N E S S E T H:
WHEREAS, City controls, owns, operates, and maintains an airport in the City
of Wichita Falls, Wichita County, Texas known as the Wichita Falls Regional Airport
("Airport"), with the power to grant rights and privileges with respect thereto, and
WHEREAS, Company is engaged in the business of operating Food and
Beverage facilities as a service to the traveling public, and
WHEREAS, proposals were received for the operation of a food, beverage and
gift shop concession at the Airport pursuant to a Request for Proposals and the
specifications contained therein, and Company was the business selected by this
process and determined to be qualified to operate the concession, and
WHEREAS, City, on the terms and conditions herein contained, is willing to
grant to Company the right to operate the food, beverage and gift shop concession
at the Airport;
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants contained herein, City and Company agree as follows:
SECTION 1
DEFINITIONS
Section 1.1 Definitions. The words and phrases defined in Section 1 shall have
the following meanings when used elsewhere in this Agreement.
(a) Agreement means this Food, Beverage and Gift Shop Concession
Agreement between City and Company, as the same may be amended or
supplemented from time to time pursuant to the terms hereof, which shall
include the City’s Request for Proposal and Company’s response to said
Request for Proposal, which is attached hereto and made an integral part
hereof.
(b) Airport means the Wichita Falls Regional Airport.
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(c) City means the City of Wichita Falls, a municipal corporation.
(d) City Property means finishings, fixtures, furnishings and equipment acquired,
installed and owned by the City.
(e) Commencement Date shall mean the first day of the Primary Term of this
Agreement, which shall be the date of execution by the City Manager of the
City of Wichita Falls, following execution by company, and shall be the
effective date of the agreement.
(f) DBE means Disadvantaged Business Enterprise as defined in 49 C.F.R. Part
23, subpart F, and shall include small business concerns which are owned
and controlled by socially and economically disadvantaged individuals which
shall include small business administration (“SBA”), Section 8(a) certificate
holders.
(g) Director shall mean the Director of Aviation, Traffic & Transportation of the
City, or the designee of the Director of Aviation, Traffic & Transportation
whenever the Director of Aviation, Traffic & Transportation is unable to act in
such capacity.
(h) DOT means the United States Department of Transportation or any
department of agency succeeding to its jurisdiction and function.
(i) EPA means the United States Environmental Protection Agency and any
federal, state or local agency, or governmental entity, succeeding to, or being
delegated with, its jurisdiction, functions, or responsibilities.
(j) FAA means the Federal Aviation Administration of the United States
Department of Transportation, or any department or agency succeeding to its
jurisdiction or function.
(k) FAR means Federal Aviation Regulations and shall include, but not be limited
to, all regulations, policies, statements and directives promulgated or issued
by the FAA.
(l) Finishes means those improvements to the Leased Premises installed by
Company, including counters, partitions, carpeting, wall coverings, counters,
heating, plumbing, ventilation, and air conditioning duct work and controls,
ceilings, lighting and power fixtures, wiring, accessories and parts necessary
to bring power to the Leased Premises.
(m) Fiscal Year shall mean City’s fiscal year meaning the twelve (12) month
period commencing October 1st and extending to September 30th of the
following year.
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(n) Governmental Requirements means all federal, state and local laws, rules,
regulations, security plans, and rulings, including all amendments, now in
effect or hereinafter enacted.
(o) Expendables shall mean commodities, supplies, glassware, dishes, utensils
and consumable items.
(p) Leased Premises means the area or areas designated on Exhibit “A”
attached hereto as the place or places within the Airport where concessions
are located.
(q) Leasehold Improvements means all improvements and equipment which
are affixed to the Leased Premises and which cannot be removed without
material damage to the Leased Premises.
(r) Minimum Annual Guarantee if applicable, means the annual minimum
guarantee payable monthly by Company to City subject to each and every
term and condition contained in this Concession Agreement. In the event of a
partial month, the monthly portion of the Minimum Annual Guarantee shall be
prorated based on the number of days during the month that this agreement
was in effect.
(s) Personal Property shall mean all movable property of the Company not
directly related to the restaurant operations of the privileges granted
hereunder, including office furniture, office equipment, and office supplies.
(t) Term shall mean the fixed term commencing no later than sixty (60) days
after the commencement date, or upon the opening of operations for
business, whichever occurs earlier.
(u) Refurbish or Refurbishment shall mean the routine repainting or
redecoration of public areas within the Leased Premises, as necessary,
including the replacement or repair of worn carpet, tile, furniture, fixtures or
finishes. Refurbishment shall not mean the performance of routine or
deferred maintenance.
(v) Request for Proposal (RFP) means City’s Request for Proposal for Food,
Beverage, and Gift Shop Concession for the Wichita Falls Regional Airport,
RFP #05-14.
(w) Terminal Building means the Passenger Terminal Building at the Airport, as
it exists on the date hereof, and any additions made thereto during the term of
this Agreement.
(x) Trade Fixtures means all non-affixed items that are not City property, except
Expendables, and Personal Property, which can be removed without damage
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to the Leased Premises, including cash registers, safes, display fixtures and
the like.
(y) TSA shall mean Transportation Security Administration of the United States
Department of Homeland Security, or any department or agency succeeding
to its jurisdiction or function responsible for providing personnel and
equipment to screen passengers, baggage and goods at the Airport and
enforcing federal transportation security regulations.
Section 1.2 Rules of Construction. Throughout this Agreement, unless the
context clearly shall require otherwise
(a) The singular includes the plural and vice versa;
(b) The words “and” and “or” shall be both conjunctive and disjunctive;
(c) The words “hereby”, “herein”, “hereof”, “hereto” and “hereunder” and any
similar terms used in this Agreement refer to this Agreement;
(d) The words "all" and "any" mean "any and all";
(e) The word "including" shall not mean in a limiting nature, but shall be
construed to mean "including without limitation";
(f) The word "he" or any other masculine pronoun includes any individual
regardless of gender;
(g) Words denoting persons shall include firms, associations, partnerships,
limited liability corporations, limited liability partnerships, trusts, corporations
and other legal entities, including public bodies, as well as natural persons.
(h) Reference to any attachments or exhibits shall mean exhibits attached to this
Agreement which shall be deemed incorporated fully by reference and made
an integral part of this Agreement; and
(i) Any headings preceding the text of the Articles, and Sections of this
Agreement and any Table of Contents or marginal notes appended to notes
hereof shall be solely for convenience of reference and shall not constitute a
part of this Agreement, nor shall they affect the meaning, construction,
interpretation or effect of this Agreement.
(j) Reference to articles or sections respectively shall mean articles or sections
of this Agreement.
(k) Reference to “travel related items” and “gift shop” are used interchangeably.
(l) Reference to Leased Premises shall also include public vending locations
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SECTION 2
TERM
Section 2.1 Term. This Agreement shall become effective on
and shall continue unless sooner terminated in accordance with this
Agreement until .
Section 2.2 Holding Over. To provide continuous service to the air traveler and
public, Company may, upon written request of City, remain upon the Leased
Premises and manage the operation of all concessions, including approved vending,
subject to this Agreement for up to a ninety (90) day period, as so requested by City,
after termination of this Agreement by expiration of the Term, cancellation or default,
to give a new company sufficient time to be chosen and commence operation. Upon
the termination of this Agreement, through the passage of time or otherwise,
Company shall aid City, in all ways possible, in continuing the business of
management of the operation of the facilities subject to this Agreement without
interruption, between termination of this Agreement and commencement of
operations by a new company.
In the event that Company, without request or objection by City, shall continue to
occupy the Leased Premises beyond the Term of this Agreement, such holding over
shall not constitute a renewal of this Agreement, but shall be considered a month-to-
month tenancy only upon the terms incorporating all terms and conditions of this
Agreement; except provided, however that, at City’s option, the Minimum Annual
Guarantee shall be equal to the last Minimum Annual Guarantee paid to City,
increased by Consumer Price Deflator Index published by the U.S. Department of
Labor, as may be selected by City. The Company will continue to pay rentals using
the adjusted Minimum Annual Guarantee and the payment structure defined in
Section 5 hereof. No such holdover shall be deemed to operate as renewal or
extension of the Term. Such month-to-month tenancy may be terminated by City or
Company by giving thirty (30) days’ written notice of said termination to the other
party at any time. Company will have no rights to renew or extend the term of this
Agreement.
SECTION 3
LEASED PREMISES
Section 3.1 Leased Premises. For and in consideration of the mutual covenants
contained herein, City hereby provides Company 1,505 square feet of concession
related operating space hereinafter called “Leased Premises”, as set forth on
Exhibit A.
For purposes of this Agreement relating to Company’s responsibilities, the Leased
Premises shall mean the areas shown on Exhibit A where (a) the exact boundaries
are deemed to be three (3) inches inside each wall separating the Leased Premises
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from the adjacent premises or the external Terminal wall, and (b) with respect to the
facade and/or wall on the front of the Leased Premises, separating the Leased
Premises from the Terminal common areas, the exact boundary is deemed to be the
external face of the facade and/or wall.
In addition, and with the written approval of the Director, kiosks, patio-type tables
and similar facilities may be located in other public areas of the terminal if doing so is
warranted for enhanced customer service, and does not interfere with other terminal
and passenger flow activities.
The area and location may from time to time be adjusted as hereinafter provided and
subsequently illustrated on a revised Exhibit A.
Section 3.2 Extent of Leasehold. In addition to the exclusive use of the Leased
Premises described in Section 3.1 above, Company shall possess the non-exclusive
right of ingress and egress to and from the Leased Premises as may be necessary
on through areas designated by the Director, subject to Airport rules and regulations,
including security regulations, as may be amended from time to time, provided that
Company’s exercise of such right shall not impede or interfere unduly with the
operation of the Airport by City, its tenants, customers and other authorized
occupants. Company shall not place or install any racks, stands or other display of
merchandise or trade fixtures in any Airport property outside the Leased Premises
without the express prior consent of the Director. In no event will Company engage
in any activity on the Airport outside the Leased Premises for the recruitment or
solicitation of business.
Section 3.3 Remeasurement of Leased Premises. At any time and from time to
time, the Director may cause City to conduct a space audit pursuant to which City
remeasures the Leased Premises, using the Airport’s th en current measurement
specifications. At the Director’s request, Company and City shall enter into an
amendment of this Agreement reflecting the results of such remeasurement.
Section 3.4 Changes to Airport. Company acknowledges and agrees that (a)
City shall have the right at all times to change, alter, expand, and contract the
Airport, including the Terminal Building; (b) City has made no representations,
warranties, or covenants to Company regarding the design, construction, pedestrian
traffic, or views of the Airport or the Leased Premises. Without limiting the generality
of the foregoing, Company acknowledges and agrees that the Airport (i) is currently
undergoing and may from time to time hereafter undergo renovation, construction,
and other Airport modifications; and (ii) may from time to time adopt rules and
regulations relating to security and other operational concerns that may affect
Company’s business. Such construction and renovation programs might involve
barricading, materials storage, noise, the presence of workers and equipment,
rearrangement, utility interruptions, and other inconveniences normally associated
with construction and renovation. Although City will use reasonable efforts to
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minimize the effect of Airport changes on Company’s business, Company
acknowledges that such activity may have some effect on the Company’s operations
located at the Airport, and Company shall not be entitled to any rent credit or other
compensation therefor.
At any time and from time to time, City may, without the consent of Company, and
without effecting Company’s obligations under this Agreement, at City’s sole
discretion, (a) change the shape, size, location, number and extent of the
improvements in any portion of the Airport, including without limitation the
concourses, boarding areas, and restaurant areas and security areas located within
the Terminal Building, (b) build additional stories above or below the Airport
buildings, including the Terminal Building, (c) eliminate or relocate public entrances
to the Leased Premises so long as there is at all times one public entrance to the
Leased Premises, (d) construct multi-level, elevated or subterranean parking
facilities and (e) expand or contract the Airport, including redefining the Airport
boundaries so as to include additional lands within the Airport or exclude lands from
the Airport or both. Without limiting waivers set forth elsewhere in this Agreement,
Company hereby waives all claims against City and releases City from all losses that
Company suffers or incurs arising out of or in connection with any changes to the
Airport or any portion of the Airport and Company further agrees that Company will
not be entitled to any rent abatement or any other rent relief in connection with any
changes to the Airport or any portion of the Airport.
Section 3.5 Common Areas. The term “common areas” means all areas and
facilities located within the Airport that are determined by City from time to time for
the general use and convenience of the tenants of the Airport and other occupants
of the Airport and the traveling public and other visitors to the Airport such as
concourses, sidewalks, elevators, escalators, parking areas and facilities, restrooms,
pedestrian entrances, driveways, loading zones and roadways. City may, in its sole
discretion, and without any liability to Company (a) change the common areas, (b)
increase or decrease the common areas (including conversion of common areas to
leasable areas and the conversion of leasable areas to common areas) and (c)
impose parking charges. City will, in its sole discretion, maintain the common areas,
establish and enforce Airport rules and regulations concerning the common areas,
close temporarily portions of the common areas for maintenance purposes, and
make changes to the common areas including changes in the location of security
check points, driveways, entrances, exits, parking spaces, parking areas, and the
direction of the flow of traffic.
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SECTION 4
USES AND PRIVILEGES
Section 4.1 Concession Rights Granted. For and in consideration of the prompt
payment of the compensation to City as hereinafter provided, City hereby grants to
Company, subject to all of the terms, covenants and conditions of this Agreement,
the Terminal Building-exclusive right and obligation to operate and maintain the
food, beverage and gift shop services operation.
Company shall enjoy the following privileges in connection with its use of the Leased
Premises:
(a) The right, privilege, and obligation to conduct and operate a Terminal Building
food, beverage and gift shop services operation at the Airport, as well as
approved vending services in the secure area of the terminal building.
Company shall not engage in any other business on the Airport under this
Agreement.
(b) The right, privilege and obligation to sell food, alcoholic and non-alcoholic
beverages to passengers, employees and the general public and to cater
airline and private aircraft food and beverage needs, if required by airline or
charter companies, as well as meetings and special events taking place on
airport, in accordance with the terms and conditions outlined herein.
Company may also provide catering services to the general public from the
leased premises. Company shall sell food and beverages only in accordance
with the terms of this Agreement.
(c) If space is available, and at the sole option of City, Company may lease
additional storage and office space identified by City as available for such
purposes, at an annual rate to be paid monthly in an amount at least equal to
the then current rate on a per square foot basis for similar or equivalent
space.
Section 4.2 Operational Assurances and Requirements.
(a) Deposit. Company shall pay to the City a refundable deposit of $500.00 prior
to occupying leasehold. Deposit will be held to cover cleaning or repairs to
leasehold should Company vacate without cleaning or repairing leasehold to
the satisfaction of the Director.
(b) Approval of Menus. Company shall not conduct any other business, or sell
any type of food and beverage products unless specifically authorized to do
so by the Director. Company shall be permitted to sell those menu items
outlined in Exhibit B, attached. Changes to the menu and prices shall be
submitted to the Director for his review and written approval prior to the
change. City will respond to such requests for authorization within a
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reasonable time not to exceed five (5) business days. This does not apply to
menus for catering, meetings and special events, which are for private use
only and not for public consumption. However, those requiring catering
services have the right to bring in outside food and beverage, as long as
these services are not utilized in the leased area identified in this agreement.
(c) Development of Food, Beverage and Gift Shop Business. At the
location(s) indicated herein, Company shall provide food, beverage and gift
shop services every day of the term hereof, without exception. The Company
shall also provide vending options located in the secure portion of the airport
terminal, accessible for passengers that have cleared the Transportation
Security Administration screening process. City may consider additional
proposed vending options proposed by the Company in other public areas of
the facility. Company shall not divert, cause or permit to be diverted any
business from the Leased Premises and Vending Locations without the
written approval of the Director. Such approval shall be subject to fees for
non-airport use of airport facility and equipment. It is acknowledged that
Company may operate non-airport catering, and that all revenues deriving
there from will be included in gross revenues in accordance with Section 5.
Company shall take all reasonable measures, in every proper manner, to
develop, maintain and increase the business conducted by it under this
Agreement. Company shall actively operate each food, beverage and gift
shop facilities so as to best serve the needs of the traveling public at the
airport.
(d) Advertising and Promoting of Products. Company may advertise brand-
name products on its packaging and within the Leased Premises and Vending
Locations only upon the written approval of the Director. City will respond to
such requests for authorization within a reasonable time not to exceed five (5)
business days. Receipts for any such advertising or promotion, if any, shall
be subject to fees as described in Section 5 hereof. This does not pertain to
the advertisement or promotion of food , beverages and travel related items
sold in the leased premises and Vending Locations.
(e) Dispute with Other Tenants. In the event of a dispute between Company
and any other Airport tenant as to the services to be offered or products to be
sold, Company shall meet and confer with the Director, who shall consider the
rights and obligations set forth in the tenants’ Agreements with the City and
make a determination. Company agrees that it shall be bound by the
decision of the Director.
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(f) No Other Uses. Company shall not use nor permit the Leased Premises and
Vending Locations to be used for any purpose other than as herein above set
forth except with the prior written consent of City, nor for any use in violation
of any applicable present or future law, ordinance, rule or regulation of any
governmental authority, agency, department or officer thereof.
(g) Purchasing. The Company shall have the right to purchase Personal
Property or services, materials and supplies used by Company from any
person or company of Company's choice. The Company shall have the right
to make agreements with any person or company of Company's choice for
services to be performed for Company which are incidental to the conduct of
Company's activities. It is understood that if Company's suppliers,
contractors and furnishers of service exclusively use any portion of the Airport
or facilities of City, then City may charge reasonable fees therefore, but
nothing herein gives the Company the right to grant to any other party the
privilege to use any portion of the Airport or facilities of City.
(h) Disposal of Equipment. The Company may dispose of equipment, which is
not City property, and which has been replaced or fully amortized, or which is
unnecessary; provided, that such right shall not be construed as authorizing
the conduct of a separate business.
(i) Employees' Parking Facilities. If not otherwise provided, Company shall
have the right to the use of reasonably adequate vehicular parking facilities for
its employees employed at the Airport in common with other employees, which
facilities shall be located in an area designated by the Airport Director as near
as practicable to the Terminal Building. Only employees assigned to the
Airport shall use the Terminal Building employee parking facilities. City
reserves the right to assess a reasonable charge for such employee parking
facilities, based on the cost of providing, operating, and maintaining the
facilities as set forth on City’s published schedule of Airport rates, fees and
charges.
(j) Access. (1) Subject to the provisions hereof, the rules, regulations, and
ordinances, and such restrictions as Company may impose with respect to its
Leased Premises, City hereby grants to Company, its agents, suppliers,
employees, contractors, passengers, guests, and invitees, the right and
privilege of access, ingress, and egress to the Leased Premises and to non-
secure public areas and non-secure public facilities of the Terminal; (2) The
ingress and egress provided for above shall not be used, enjoyed, or
extended to any person engaging in any activity or performing any act or
furnishing any service for or on behalf of Company that Company is not
authorized to engage in or perform under the provisions hereof unless
expressly authorized by City; (3) City shall have the right at any time or times
to close, relocate, reconstruct, change, alter, or modify any such means of
access provided for Company's use pursuant to this Agreement or otherwise,
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either temporarily or permanently; provided that reasonable notice to
Company and a reasonably convenient and adequate means of access,
ingress and egress shall exist or be provided in lieu thereof. City shall suffer
no liability by reason thereof and such action shall in no way alter or affect
any of Company's obligations under this Agreement
(k) Company must maintain, at minimum, a state-issued Beer and Wine
Permit at all times and provide such beverages for sale at all times as
permitted by such Permit.
(l) Pest Control. Company is responsible for maintaining monthly scheduled
licensed pest control.
(m) Grease Trap. Company is responsible for cleaning the grease pit and
ensuring proper disposal of removed grease.
Section 4.3 No Joint Venture or Partnership. This Agreement shall not be
deemed or construed (a) to create any relationship of joint venture or partnership
between City and Company, (b) to give City any interest in the business of
Company, or (c) to grant to Company any powers as an agent or representative of
City, the Authority, or the City for any purpose or to bind City, the Authority, or the
City.
SECTION 5
COMPENSATION, BOOKKEEPING, AND AUDIT
Section 5.1 Compensation
(a) Rents. As consideration for the privilege of operating the restaurant
hereunder, Company shall pay to the City each year, for the full term of the
Agreement, $2,400 in monthly installments of $200.00.
(b) Fees. As consideration for the privilege of operating the restaurant
hereunder, the Company shall pay to the City % of gross receipts, paid
monthly, for the full term of the Agreement.
(b) Other Fees and Charges. Notwithstanding the above, City expressly
reserves the right to assess and collect the following:
1. A reasonable fee payable by Company or its Terminal Building
employees for the employee parking area(s) provided at the Airport.
2. Charges for other services or facilities not enumerated herein which are
provided by City to Company, at Company’s request, except as provided
in Section 7.2. Such services or facilities may include, but are not limited
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to, special maintenance of Leased Premises. Charges will be based on
the actual cost of providing such facilities or services.
Section 5.2 – Gross Receipts Defined
As used herein, the term “Gross Receipts” shall include all revenue derived from the
sale of products, services, merchandise and all revenue transactions from Leased
Premises, whether delivered on or off the Airport, and whether paid for in cash or
credit, and regardless of when or whether paid for or not, except only as explicitly
excluded hereunder. Excluded from Gross Receipts shall be:
(a) Federal, state, county, and municipal sales taxes or other taxes separately
stated and collected from customers;
(b) Actual credit card transaction fees not to exceed three percent (3%) for any
given transaction;
(c) Receipts from the sale of or the trade-in value of any Trade Fixtures;
(d) Receipts from, the value of, or the sale of, any supplies or equipment to
another operation or affiliate of Company, whether or not located at the
Airport; provided such sale is incidental to or not made for the purpose of
circumventing the fee provisions of this Agreement.
(e) Receipts in the form of refunds from or the value of merchandise, supplies, or
equipment returned to shippers, suppliers, or manufacturers;
(f) Cost or value of meals provided without charge to employees of Company or
the amount of any discount, if any, given to Airport employees, employees of
Company or employees of other tenants of the Airport;
(g) The amounts of any gratuities paid or given by patrons or customers to
employees of Company, so long as such gratuities are voluntary and not
included in the invoices to such patrons or customers.
(h) Receipts from the sale of uniform or clothing to Company’s employees
whether such uniforms or clothing are required to be worn by said employees.
Except as herein above specified, if any charge for any of the products or services
provided hereunder is not assessed, charged, or collected, irrespective of the reason
therefore, the proper amount of such charge shall, nevertheless, be included in the
term “Gross Receipts” as the same is used in this section. Further, no deduction
shall be made from Gross Receipts by reason of any credit loss, charge, or
deduction that may be incurred by reason of the acceptance or use of credit cards or
other charge or charge arrangements.
Section 5.3 – Statements, Books and Records.
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Within ten (10) days after the close of each calendar month of the term of this
Agreement, Company shall submit to City, in such detail and form as may be
specified by City, certain information, including but not limited to, a statement of its
Gross Receipts during the preceding month said statement to be signed by a
responsible accounting officer of Company. Said statement shall include, at a
minimum, a breakdown of Company’s sales at each location for food, beverages and
travel related items. City reserves the right to change the form of the monthly
statement and to require the submission by Company of other information pertaining
to the Gross Receipts hereunder, and Company agrees to change the form of its
statements to that requested by City and to provide any additional information City
may request.
Section 5.4 Late Fees on Overdue Payments
Any payment not received from Company within ten (10) days after the due date
shall accrue a late fee at an interest rate of one percent (1.0%) per month, beginning
with the original due date until paid in full, subject to a minimum late fee of twenty-
five dollars ($25.00).
Section 5.5 Rent Abatement
The City agrees to abate all rents payable under 5.1(a) for the first twelve (12)
months of this Agreement. At the written request of the Company, the City may also
waive all or portions of rents for the second twelve (12) months of this Agreement, if
so approved by the City Council.
In exchange for the rent abatement, Company must participate in the Fly Wichita
Falls VIP Program by providing free coffee and water (water bottles provided by the
Airport) to Fly Wichita Falls VIP members when they present a membership card.
SECTION 6
IMPROVEMENTS AND EQUIPMENT IN LEASED PREMISES
Section 6.1 Improved Space. The Leased Premises is provided by the city fully
finished and equipped for typical food and beverage services operation.
Section 6.2 Alterations and Improvements. Company shall not install or erect
additional, nonstructural improvements in the Leased Premises, or alter, change, or
make other improvements unless and until plans and specifications for such
additional alterations or improvements shall have been submitted to and approved in
writing by Director. Full and complete plans and specifications for all work, facilities,
improvements, and finishes, and the time required to complete same, shall be
submitted to and receive the written approval of Director before any work or
construction is commenced. Any such alterations or improvements shall be without
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cost to City, except as provided in Section 6.3 below. All structural improvements,
equipment and interior design and decor constructed or installed by Company, its
agents, or contractors, including the plans and specifications, shall be of attractive
construction and first-class design and shall comply with any and all applicable
statutes, ordinances, building codes, and rules and regulations. City shall make its
architect for the Terminal Building available for coordination on design matters.
Approval of City shall extend to and include architectural and aesthetic matters and
City reserves the right to reject any layout or design proposals submitted and to
require Company to submit any such layout or design proposal until they meet City’s
approval.
One reproducible final copy of the as-built plans for all improvements or subsequent
changes therein or alterations thereof to the Leased Premises shall be signed by
Company and submitted to the Director within thirty (30) days following completion
of any project. These plans, and any subsequent modifications or alterations, shall
also be furnished to City on computer discs as electronic files in a format compatible
with the CAD system used by City.
Section 6.3 Title, Removal, and Demolition of Improvements. All permanent
improvements, additions and alterations made to the Leased Premises by Company
shall upon installation become the property of City free and clear of liens or
encumbrances; provided, however, that any Trade Fixtures, signs and other
Personal Property of Company not permanently affixed to Leased Premises shall
remain the property of Company. Should Company fail within twenty (20) business
days following the termination of this Agreement to remove its Trade Fixtures, signs
and other Personal Property of Company not permanently affixed to Leased
Premises, then at the option of City, title to same shall vest in City at no cost to City.
Company shall not remove or demolish, in whole or in part, any improvements upon
Leased Premises without the prior written consent of the Director. Company
understands and agrees that consent may be conditioned upon the obligation of
Company to replace the same by an improvement specified in such consent at
Company’s sole expense.
SECTION 7
MAINTENANCE
Section 7.1 City’s Obligations in Terminal Building.
(a) City shall provide structural maintenance of the Terminal Building and
maintenance of electrical, heating, ventilating and air conditioning systems
providing services to the leased premises. City may also include a listing of
the Company in the City operated “Fly Wichita Falls” website, along with a link
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to the Company’s website, as long as the Director finds the Company’s
website in good, business-like standing.
(b) City will at all times maintain, operate, and keep in good repair the Terminal
Building, and all appurtenances, facilities, and services now or hereafter
connected thereto.
Section 7.2 Company’s Obligations in Terminal Building.
(a) Except for structural maintenance of the Terminal Building, as provided in
Section 7.1, Company shall be obligated, without cost to City, to maintain the
Leased Premises in good appearance, repair, and safe condition consistent
with good business practices, industry standards and in accordance with all
applicable laws and rules and regulations of the City. Company shall
maintain and repair all Leasehold Improvements and all furnishings, fixtures,
and equipment therein, whether installed by Company, the City or by others,
including repainting or redecorating as necessary, and replacing or repairing
worn carpet, tile, fixtures or furnishings. All such maintenance and repairs
shall be of quality equal to the original in materials and workmanship, and all
work, including paint colors, shall be subject to the prior written approval of
Director. Company shall be responsible for such repairs to City-owned
equipment up to Seven Hundred Fifty dollars ($750) in cost. City shall be
responsible for any repairs to City-owned equipment which exceeds Seven
Hundred Fifty dollars ($750) with the exception that any damage resulting
from Company’s or its employee’s or agent’s abuse or neglect shall be the full
responsibility of Company.
(b) Company shall be responsible for transporting all trash to City designated
trash containers in a manner satisfactory to the Director.
(c) If City determines that maintenance of the Leased Premises is not
satisfactory, City shall so notify Company in writing. If said maintenance is
not performed by Company within fifteen (15) days after receipt of written
notice, City or its agent shall have the right to perform the maintenance
therefor and Company agrees to reimburse City promptly for the cost thereof,
plus ten percent (10%) thereof for administrative overhead.
(d) Upon execution of this Agreement, Company shall establish a preventive and
routine maintenance program, the provisions of which shall be subject to the
approval and periodic review by the Director. Company shall from time to
time, upon request, provide the Director a written schedule of Company’s
cleaning and maintenance program.
(e) On or about the commencement of each calendar year, representatives of
City and Company shall tour the Leased Premises and jointly agree upon
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what, if any, routine Refurbishment is required to maintain the Leased
Premises in first-class condition, and Company shall undertake such
Refurbishment at its sole cost and expense. If Company and City cannot
jointly agree upon the type and extent of Refurbishment, City may at its sole
discretion determine the Refurbishment required.
(f) Upon discovery, Company shall immediately give oral and written notice to
City of any hazardous or potentially hazardous conditions in the Leased
Premises or in the Terminal Building. Any hazardous or potentially hazardous
condition in the Leased Premises shall be removed and disposed of
immediately in accordance with local, state and federal regulations. At the
direction of said Director, Company shall close the Leased Premises until
such hazardous or potentially hazardous condition is removed.
(g) Company agrees to employ sufficient maintenance and janitorial personnel,
and provide necessary equipment, to keep the Leased Premises and all
furniture, furnishings, fixtures and equipment clean, neat, safe, sanitary and in
good working order and condition at all times.
(h) Company shall comply with all health and sanitary regulations adopted by all
applicable governing bodies and all rules and regulations promulgated by the
City. Company shall give access for inspection purposes to any duly
authorized representatives of such governing bodies and to the Director and
Company shall promptly give a copy of any reports to the Director.
SECTION 8
OPERATIONS OF LEASED PREMISES
Section 8.1 – Hours of Operation. Company shall actively operate its food,
beverage and gift shop operation and use its best efforts to accomplish a business-
like operation therein. The operation shall be open to serve the public Sunday
through Friday with the exception of Thanksgiving Day, Christmas Day, New Year’s
Day, July 4th and Labor Day , unless otherwise authorized in writing by City. In no
event shall the hours of operation be curtailed to an extent that the service
contemplated under this Agreement shall be diminished. Except as otherwise stated
herein, the hours of service shall be determined in light of changing public demands
and airline operating schedules. Company may advise the Director of Company’s
analysis of the optimum arrangements, but the final determination shall be made by
the Director based on an analysis of necessary service to the public. No facilities
shall be blocked off or closed at any time during the approved hours of operation.
Section 8.2 – Delivery of Goods. Company shall arrange for the timely delivery of
all food products, goods, merchandise, and supplies, at such times, in such
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location(s), and by such routes as determined by the Director and according to such
procedures that may be established from time to time by the Director and, in the
case of deliveries to secured areas, the Transportation Security Administration.
Section 8.3 Utilities. The cost of all utilities, excluding phone and data, used or
consumed in the Leased Premises shall be borne by the City.
Section 8.4 Personnel. All personnel employed by Company shall be neat, clean,
groomed and courteous at all times. Company shall employ sufficient trained
personnel to staff and meet the reasonable needs or demands of patrons.
Personnel shall be thoroughly qualified, familiar with the business, the products sold,
courteous, informative and helpful to the public.
(a) Removal of Employees. After receipt of written notice from City, Company
shall immediately remove any employee or other representative of Company
from the Airport who participates in improper or illegal acts on the Airport, who
violates Airport rules and regulations or any provision of this Agreement, or
whose continued presence on the Airport is, in the opinion of the Director,
deemed not to be in the best interests of City.
(b) Conduct of Suppliers, Others. Company shall not allow its agents,
servants, contractors, suppliers or employees to conduct business in a loud,
noisy, boisterous, offensive or objectionable manner. Company shall ensure
that all personnel treat all patrons equally and courteously.
(c) Lawful Working Age. All employees or other personnel of Company working
on City property shall be of lawful working age. Company shall comply with
all federal, state and local labor and employment laws, including laws and
regulations relating to the handling, sale, and serving of alcoholic beverages.
(d) Employee Appearance. Company shall ensure that its employees present a
neat, clean, and orderly appearance at all times.
(e) Security Background Checks. Employees of Company providing services
in secured areas of the Terminal Building must qualify for a security
clearance, submit to the required fingerprinting and background check, and
obtain appropriate security badges, at Company’s expense, and otherwise
comply with security regulations that may be established by the City and the
TSA from time to time. Personnel who are refused security clearance shall
not be permitted by Company to perform work in the secured areas of the
Airport.
(f) General Manager. Company shall select and appoint a general manager
with day-to-day responsibility for the food, beverage and gift shop concession.
The management employee shall be in complete charge of Company’s
operation at the Airport and shall be a qualified and experienced manager
vested with full powers to conduct Company’s operation hereunder. The
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management employee shall be available during regular business hours; and
at all times during his/her absence, a designated representative of the
Company shall be in charge and available. City shall have the right to
approve the appointment of Company’s general manager prior to assignment
to the Airport.
(g) Uniforms. Uniforms should be worn by all employees, along with
identification name tags, at all times during hours of operation. All uniform
options must be pre-approved by the Director. Failure to wear pre-approved
uniform options may result in the removal of the employee from the facility.
Section 8.5 – Quality and Character of Service.
(a) Type of Operation. Company shall maintain and operate the concession
privileges granted hereunder in an orderly, proper, and first-class manner,
which, in the sole judgment of City, does not annoy, disturb, or offend others
at the Airport. Company shall ensure that each customer receives prompt,
efficient and courteous service. In conjunction with that requirement,
Company shall ensure that the operation has adequate staff to provide such
service. Company shall ensure that all locations are adequately staffed
during normal peak operating hours and during any special (e.g., charter
flights, aircraft diversions, public event, etc.) or emergency situation.
Company shall conduct its business in the manner described in the
Company’s Proposal, incorporated herein by reference.
(b) Quality of Food. Company shall supply sufficient goods and product to fully
stock its Leased Premises. All foodstuff must be new, fresh, and of top
quality. Branded food and beverage units will, at a minimum, conform to the
requirements established by the franchisor or licensor.
(c) Pricing. The Company has covenanted in the Company’s Proposal to
charge prices that are reasonable and comparable to prices charged for
similar items in similar facilities in the Wichita Falls area. The Airport
reserves the right to verify, approve or reject the prices and/or comparable
used by the company. Comparable facilities shall mean food, beverage and
gift shop facilities offering similar service, quality, and quantity of offerings,
including shopping malls or downtown locations. Comparable facilities may
also include special event venues, seasonal festivals, fairs and sporting
events, or hotels and convention centers.
(d) Director’s Right to Object. The Director shall have the right to raise
reasonable objections to the condition of the Leased Premises, the quality
and quantity of food, beverage and gift shop items offered, the character of
the service, the hours of operation, the appearance and performance of
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service personnel, and to require any such conditions or practices
objectionable to said Director to be remedied by Company.
(e) Services Nondiscriminatory. Company shall provide all services authorized
hereunder to its customers and patrons upon a fair, equal, and
nondiscriminatory basis and charge fair, reasonable and nondiscriminatory
prices; provided, however, that Company may make or give such reasonable
and nondiscriminatory discounts, rebates, or other similar price reductions as
it may desire to its employees.
(f) Replacements and Refunds. Company may, at all times during the term of
this Agreement, and without any additional charge to customers, replace any
food or beverage product by said customer to be unsatisfactory, or shall
provide said customer a full refund therefor.
(g) Credit/Debit Cards. At all times during the term of this Agreement, Company
shall accept as payment for goods and services at least two nationally
recognized credit/debit cards (e.g., American Express, Master Card, Visa,
etc.).
(h) General Public Services. Company understands and agrees that its
operation at the Airport obligates it to render public services such as making
change upon request and without charge, giving directions, and reasonably
assisting the public, when requested.
(i) Additional Compliance. Company shall comply with all applicable
governmental laws, ordinances, and regulations in the conduct of its
operations under this Agreement.
Section 8.6 – Signs.
(a) Right to Install. Company shall have the right to install and operate upon or
in the Leased Premises, and at Company’s sole cost and expense, signs
containing its name and representing its business. Company acknowledges
City’s desire to maintain a high level of aesthetic quality in the Terminal
Building and in all concession facilities throughout the Terminal Building.
Therefore, Company covenants and agrees that, in the exercise of its
privilege to install and maintain appropriate signs on the Leased Premises, it
will submit to City the size, design, content, and intended location of each and
every sign it proposes to install on or within the Leased Premises, and that no
signs of any type shall be installed on or within the Leased Premises without
the specific prior written approval of Director as to the size, design, content,
and location. Handwritten, or hand lettered signs are prohibited.
Notwithstanding any prior written approval, upon written notice from the
Director at any time during the term of this Agreement, Company shall install,
remove, or modify any signs which the Director deems necessary or
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unnecessary for identification or information to the public, passengers, or
other Airport users. Failure to require removal of any sign placed on or about
the Leased Premises without written permission shall not imply consent or
limit the authority of the Director to require removal of any unapproved sign.
(b) Signs and Fixtures Outside Premises. Company shall not place or install
any racks, stands, and trade fixtures, pedestal signs, or other displays of
products outside the boundaries of the Leased Premises without the express
prior written approval of the Director.
(c) Removal of Signs. Upon the expiration or sooner termination of this
Agreement, Company shall, if requested by the Director, remove any and all
identification signs and similar devices placed by Company on or in the
Leased Premises. In the event of the failure on the part of Company to so
remove each and every sign as requested by the Director, the Director may
perform such work and, upon demand, Company shall pay the cost thereof to
City.
Section 8.7 - Security. Company acknowledges and accepts full responsibility for
the security and protection of the Leased Premises and any and all inventory,
equipment, and facilities now existing or hereafter placed on or installed in or upon
its Leased Premises, and for the prevention of unauthorized access to its facilities
and expressly agrees to comply with all rules and regulations of the Airport and of
any and all other governmental entities that now or may hereafter have jurisdiction
over such security. Company further expressly acknowledges and accepts full
responsibility to maintain the integrity of the airfield security from or through the
leased premises to the airfield operations area, and hereby agrees to fully comply
with all Federal, State and local laws, including, but not limited to 49CFR Part 1542,
Airport Security, as amended from time to time, and with all rules and regulations of
Airport concerning security procedures, as they presently exist or may be amended
from time to time.
SECTION 9
LICENSES AND TAXES
Company covenants and agrees to obtain all proper licenses or permits for the
operation of its business hereunder, and to pay all taxes assessed or imposed by
any governmental authority upon the fees, rentals, and charges and upon any
improvements erected or installed thereon. Company shall, after notifying City of its
intention to do so, have the right to contest in good faith by all appropriate
proceedings, the amount, applicability, or validity of any such tax or assessment. In
the event that Company shall fail to pay any of the foregoing items required by this
Section, City may (but shall be under no obligation to) pay the same, and any
amounts so advanced therefor by City shall become an additional obligation of
Company, which amounts, together with interest thereon at the rate of one percent
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(1.0%) per month from the date thereof, Company agrees to pay upon demand. The
foregoing provision shall in no way be construed as restricting City from contesting
the legality of any such tax or other governmental assessment.
Company shall be solely responsible for any training expenditure requirements for its
employees and management. Training expenditures include the cost of classes,
travel, hotels, and all costs associated with completing training requirements.
SECTION 10
LIENS, PAYMENTS AND PERFORMANCE BONDS
Construction Surety Bond. Company shall not allow any liens to attach to the
Leased Premises or its leasehold interest without the prior written approval of City.
Prior to the commencement of any construction, alteration, or repair hereunder
which exceeds twenty-five thousand dollars ($25,000) in cost, Company or its
contractor shall furnish to City, and without expense to City, a surety bond, naming
City as co-obligee, issued by a surety company licensed to transact business in the
state of Texas and satisfactory to and approved by City with Company’s contractor
or contractors as principals, in a sum not less than one hundred percent (100%) of
the total cost of contract or contracts for the construction, alteration, or repair of the
improvements and facilities mentioned herein. Said bond shall guarantee the
prompt payment of all persons supplying labor, materials, provisions, supplies, and
equipment used directly or indirectly by said contractor, subcontractor(s) and
suppliers in the prosecution of the work provided for in said construction contract
and shall protect City from any liability, losses or damages arising therefrom.
Section 11
Damage or Destruction of Leased Premises in Terminal Building
Section 11.1 Partial Damage. If all or a portion of the Leased Premises is partially
damaged by fire, explosion, the elements, public enemy, or other casualty, but not
rendered untenantable, the same will be repaired with due diligence by City subject
to the limitations of Section 13.4; provided, however, that if the damage is caused by
the negligent act or omission of Company, its sub-Lessee, agents, or employees, to
the extent that such damage or destruction is not covered by insurance, Company
shall be responsible for reimbursing City for the costs and expenses incurred in such
repair.
Section 11.2 Extensive Damage. If the damages referred to in Section 13.1 shall
be so extensive as to render the Leased Premises untenantable, but capable of
being repaired in thirty (30) days, the same shall be repaired with due diligence by
City subject to the limitations of Section 13.4; and, the compensation payable herein
under Section 5 shall abate from the time of such damage or destruction until such
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time as the said Leased Premises is fully restored and certified by City's Building
Inspectors as ready for occupancy; provided, however, that if said damage is caused
by the negligent act or omission of Company, its sub-Lessee, agents or employees,
said fees and charges will not abate and, to the extent that such damage or
destruction is not covered by insurance, Company shall be responsible for reim-
bursing City for the costs and expenses incurred in such repair.
Section 11.3 Complete Destruction. In the event the Leased Premises is
completely destroyed by fire, explosion, the elements, public enemy, or other
casualty, or so damaged that it is untenantable and cannot be replaced for more
than thirty (30) days, City shall undertake the repair, replacement, and recon-
struction of said Leased Premises; and compensation payable herein under Section
5 shall abate as of the time of such damage or destruction until such time as the said
Leased Premises is fully restored and certified by City's Building Inspectors as read y
for occupancy; provided, however, that if said damage is caused by the negligent act
or omission of Company, its sub-Lessees, agents, or employees, said fees and
charges will not abate, and to the extent that such damage or destruction is not
covered by insurance, Company shall be responsible for reimbursing City for the
costs and expenses incurred in said repair; provided further, however, if within
twelve (12) months after the time of such damage or destruction said Leased
Premises shall not have been repaired or reconstructed, Company may cancel this
Agreement in its entirety.
Section 11.4 Limits of City's Obligations. It is understood that, in the application
of the foregoing Sections 11.1, 11.2, and 11.3, City's obligations shall be limited to
repair or reconstruction of the Terminal Building Leased Premises to the same extent
and of equal quality as obtained at the commencement of operations. Redecoration
and replacement of furniture, fixtures, equipment, and supplies provided by Company
shall be the responsibility of Company and any such redecoration and
refurnishing/re-equipping shall be of equivalent quality to that originally installed
hereunder.
SECTION 12
FEDERAL REQUIREMENTS
(a) Company, its successors in interest and assigns, does hereby covenant and
agree that:
(i) No person on the grounds of race, color, national origin or disability shall
be excluded from participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities.
(ii) In the construction of any improvements on, over or under such land and
the furnishing of services thereon, no person on the grounds of race,
color, national origin or disability shall be excluded from participation in,
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denied the benefits of, or otherwise be subjected to discrimination.
(iii) The Company shall use the premises in compliance with all other
requirements imposed by or pursuant to Title 49, Code of Federal
Regulations, Department of Transportation, Sub-title A, Part 21, Non-
discrimination in federally assisted programs of the Department of
Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and
as said Regulations may be amended.
(b) Company acknowledges and agrees that the provisions of all Federal-Aid
Airport Program Grant Agreements with the City that are applicable to the
Airport are by reference made a part hereof to the same extent as though
copied herein at length.
(c) Nothing herein shall be deemed to grant Company any exclusive right for the
use of any landing area or air navigation facility upon which Federal funds
have been expended, within the meaning of Section 308 of the Federal
Aviation Act of 1958, as amended or supplemented.
(d) Company agrees to comply with the City’s Disadvantaged Business
Enterprise programs insofar as such programs are applicable to Company’s
operations on the Airport. Company acknowledges that the goals set forth in
such programs shall be subject to change without notice to Company.
(e) Public Benefit. Company agrees to operate the Leased Premises for the use
and benefit of the public and further agrees:
(i) To use reasonable efforts to furnish good, prompt and efficient services
adequate to meet all the demands for its services at the Airport;
(ii) To furnish said services on a fair, equal and not unjustly discriminatory
basis to all users thereof; and
(iii) to charge fair, reasonable and nondiscriminatory prices for each unit of
sale or service, provided that the Company may make reasonable
nondiscriminatory discounts, rebates or other similar types of price
reductions for volume purchases
SECTION 13
RIGHTS AND OBLIGATIONS OF CITY
Section 13.1 Right of Flight. Company understands that the City and United
States Air Force reserves the right of flight for the passage of aircraft above the
surface of the Leased Premises in accordance with the criteria of the Federal
Aviation Administration and that the grant and demise of the Leased Premises is
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subject to this reserved right of flight, which such right shall include the right to cause
in such air space such noise as may be inherent to the operation of aircraft now
known or hereafter used for the navigation of or flight in the air. Further, Company
understands and agrees that City and United States Air Force reserves the right to
use said air space for landing at, taking off from and operating aircraft on and over
the Airport.
Section 13.2 Operation, Maintenance and Expansion of Airport by the City.
(a) The City agrees to operate, maintain and keep in good repair the areas and
facilities at the Airport for the public and Company in accordance with the
practices of a reasonably prudent airport operator. The City agrees to use
reasonable efforts to keep the Airport free from obstructions and to do all
things reasonably necessary for the safe, convenient and proper use of the
Airport by those who are authorized to use the same. The City agrees to
maintain and operate the Airport in accordance with all applicable standards,
rules and regulations of the FAA.
(b) The City may expand and improve the Airport as it, in its sole judgment, may
deem necessary to provide required facilities in the interest of the public and
the City.
(c) The City shall have the right, but not the obligation, to maintain and keep in
repair the landing area of the Airport and all publicly-owned facilities of the
Airport, together with the right to direct and control all activities of Company in
this regard.
SECTION 14
LIABILITY, INDEMNIFICATION, INSURANCE AND CONDEMNATION
Section 14.1 Liability. The City shall not be liable for its failure to perform any of
the obligations under this Agreement or for any delay in the performance thereof, nor
shall any delay or failure be deemed a default by the City when such failure or delay
is the result of any cause beyond its reasonable control or jurisdiction. In any such
case, a promptly written notice will be given by the City to Company of the existence
of such cause and of readiness to resume performance upon the removal or
termination thereof provided, however, that in every instance where the operation of
the Airport and its facilities shall be wholly or partially suspended because of fires,
storms, riots or acts of God, the City will proceed with due diligence and insofar as it
has funds available to do so, to repair and restore the Airport and its facilities to such
conditions as will permit its use and enjoyment as a commercial airport.
Section 14.2 Indemnification.
A. Definitions
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For the purpose of this section the following definitions apply:
“City” shall mean all officers, agents and employees of the City of Wichita
Falls.
“Claims” shall mean all claims, liens, suits, demands, accusations,
allegations, assertions, complaints, petitions, proceedings and causes of action of
every kind and description brought for damages.
“Damages” shall mean each and every injury, wound, hurt, harm, fee,
damage, cost, expense, outlay, expenditure or loss of any and every nature,
including but not limited to:
(i) injury or damage to any property or right
(ii) injury, damage, or death to any person or entity
(iii) attorney’s fees, witness fees, expert witness fees and expenses, and
(iv) all other costs and expenses of litigation
“Premise Defects” shall mean any defect, real or alleged, which now exists or
which may hereafter arise upon the premises.
“Company” includes the corporation, company, partnership, or other entity, its
owners, officers, and/or partners, and their agents, successors, and assigns.
“Company’s employees” shall mean any employees, officers, agents,
subcontractors, licensee and invitees of Company.
“Proven” shall mean that a court of competent jurisdiction has entered a final
unappealable judgment on a claim adjudging an entity or person liable for a
monetary judgment.
“Sole negligence” shall mean negligence of a party that is unmixed with the
fault of any other person or entity.
B. Indemnity
The Company must indemnify, hold harmless, and defend the City from
and against liability for any claims arising out of the Company's work and
activities conducted in connection with this Contract.
The Company is an independent contractor and is not, with respect to
its acts or omissions, an agent or employee of the City.
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Company must at all times exercise reasonable precautions on behalf
of, and be solely responsible for, the safety of Company’s employees while in
the vicinity where the work is being done. The City is not liable or responsible
for the negligence or intentional acts or omissions of the Company or
Company’s employees.
The City assumes no responsibility or liability for damages which are
directly or indirectly attributable to premise defects. Responsibility for all
such defects is expressly assumed by the Company.
The City and Company must provide the other prompt and timely notice
of any covered event which in any way affects or might affect the Company or
City. The City has the right to compromise and defend the same to the extent
of its own interests.
BOTH CITY AND COMPANY EXPRESSLY INTEND THIS CONTRACT'S
INDEMNITY PROVISION TO REQUIRE COMPANY TO INDEMNIFY AND
PROTECT THE CITY FROM THE CONSEQUENCES OF THE CITY'S OWN
NEGLIGENCE WHILE CITY IS PARTICIPATING IN THIS CONTRACT, WHERE
THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE DAMAGES. THIS
CONTRACT'S INDEMNITY PROVISION DOES NOT APPLY TO ANY CLAIM
WHERE DAMAGE IS PROVEN TO RESULT FROM THE SOLE NEGLIGENCE OF
THE CITY.
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Section 14.3 Insurance.
(a) The Company shall provide and maintain, at its own expense, the following
types and amounts of insurance, during the term of this Lease:
TYPE AMOUNT
(i) Comprehensive General (Public)
Liability – to include (but not limited to)
the following:
Combined single limit coverage (or
equivalent) for bodily injury and
property damage: $1 million on a
per occurrence basis
a) Premises/operations
b) Independent contractors
c) Personal injury liability
d) Contractual liability
e) Product/completed operations
liability
f) Liquor Liability
(ii) Worker’s Compensation and
Employer’s Liability
Statutory
$100,000 per occurrence
The preceding amounts notwithstanding, the City reserves the right to increase
the minimum amount required insurance to be effective 90 days after notice is
sent to the address provided in Section 17.2 (or subsequent address provided in
writing to the City, through its airport management designee.
(b) The procurement of said insurance shall not be construed to be a limitation
upon the Company's liability or as a full performance on its part of the
indemnification provisions of the Lease. The Company's obligations are,
notwithstanding said policy of insurance, for the full and total amount of any
damage, injury or loss caused by or attributable to its activities conducted at
or upon the Leased Premises.
(c) Before commencement of activities under this Lease, the Company shall furnish
to the City, certificates of insurance, plainly and clearly evidencing the required
insurance, and thereafter, new certificates prior to the expiration date of any
prior certificate. The Company understands that it is solely responsible to
provide this necessary information. If the City notifies Company, in writing, that
a violation of this article has occurred, Company will have 30 days to comply. If
after thirty (30) days such violation has not been cured, this shall be considered
a cause for cancellation of this lease, under the provisions of Section 15.
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(d) Insurance required herein shall be issued by a company or companies of
sound and adequate financial responsibility and authorized to do business in
the state of Texas. All policies shall be subject to examination and approval
by Legal office for their adequacy as to form, content, form of protection, and
providing company.
(e) Insurance required by this Lease for the City, as additional insured, shall be
primary insurance and not contributing with any other insurance available to
the City, including any third party liability policy. The inclusion of the City as
an additional insured is not intended to, and shall not make the City a partner
or joint venturer with Company.
(f) The Company further agrees that with respect to the above-required insurance,
the City shall:
(i) Be named as additional insured/or an insured, as its interest may appear;
(ii) Be provided with a waiver of subrogation; and
(iii) Be provided within thirty (30) days advance notice, in writing, of
cancellation or material change.
(g) Said policies of insurance shall be performable in Wichita County, Texas, and
shall be construed in accordance with the laws of the state of Texas.
(h) Protection against loss by fire or other casualty to the equipment or property of
Company shall not be an obligation of the City.
Section 14.4 Insurance of the Leased Premises.
(a) Improvements. The Leased Premises shall be insured at all times during the
term of this Agreement by Company for fire risks under a policy issued by a
responsible insurance company. All such insurance policies on the Leased
Premises shall name as insured thereunder the City and Company. Said
insurance on a replacement cost basis, in an amount not less than fifty
thousand dollars ($50,000), covering loss or damage to any buildings and/or
improvements on the premises and premises contents owned or leased by
the Company. The City of Wichita Falls shall not be liable for any damages to
fixtures, merchandise, or other personal property of Company, regardless of
the cause, and the Company does hereby release the City from any such
liability; and Company shall release and relieve the City, and waive its entire
claim of recovery for loss or damage to property arising out of any of the
perils whether included in Company’s property insurance, or not, regardless if
the loss or damage is due to negligence of the City or the Company, or their
respective agents, employees, guests, licensees, invitees, contractors or
other persons.
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(b) Reconstruct/Repair. In the event the Leased Premises or a substantial part
thereof is damaged or destroyed by an insured casualty, Company shall at its
sole cost reconstruct or repair the improvements and the insurance proceeds
shall be applied to the reconstruction or repair of the improvement, the
Company shall pay any deficiency between the cost of reconstructing or
repairing the improvements to its state prior to such loss and the proceeds.
The facilities shall be reconstructed or repaired, either in accordance with the
original plans and specifications or in accordance with the new or modified
plans and specifications jointly approved by the City and Company. Before
any repair or reconstruction under this paragraph, Company shall submit
plans and specifications to the City for approval.
SECTION 15
EVENTS OF DEFAULT AND REMEDIES
Section 15.1 Default by Company. The following shall be events of default as to
the Company under this Agreement:
(a) Failure by the Company to pay any rent and fees within thirty (30) days of the
date it receives written notice from the City that such rent is past due.
(b) Failure by the Company to observe and perform any covenant, condition or
agreement on its part to be performed other than as referred to in sub-section
(a) for a period of thirty (30) days after receipt of written notice from the City
specifying such failure and requesting that it be remedied.
(c) Abandonment or desertion of Leased Premises by the Company for any
period of time exceeding thirty (30) consecutive calendar days or filing of any
lien against the Leased Premises or Company’s interest therein in violation of
this Agreement and shall remain unreleased for a period of sixty (60) days
from the date of such filing unless within said period the Company is
contesting in good faith the validity of such lien and while such lien is
appropriately bonded.
(d) A receiver is appointed without Company’s application or consent, in any
action or proceeding by or against Company and such action or proceeding is
not stayed or discharged within sixty (60) days after its commencement, or
Company is involuntarily made a party to any insolvency proceeding
conducted pursuant to the laws of any state or of a political subdivision of any
state and such proceeding is not stayed or discharged within sixty (60) days
after its commencement, or Company involuntarily becomes a debtor in any
case commenced under the provisions of the United States Bankruptcy Code,
as amended and such case is not stayed or discharged within sixty (60) days
after its commencement.
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(e) The dissolution or liquidation of Company or the filing by Company of a
voluntary petition in bankruptcy or failure by the Company promptly to remove
any execution, garnishment or attachment of such consequence as will impair
its ability to carry on its operations at the Leased Premises.
Section 15.2 Remedies on Default. Whenever any event of default referred to
in Section 15.1 hereof shall have happened, the City may take any one or more of
the following remedial steps as against the Company:
(a) The City may re-enter and take possession of the Leased Premises of
Company without terminating this Agreement and sub-lease the interest of
the Company to any party or operate the same on behalf of the Company. In
either case, holding the Company liable for the difference, if any, between the
rents and other amounts payable by Company hereunder and the rents and
other amounts payable by such sub-leasing.
(b) After thirty (30) days’ written notice to Company, the City may terminate this
Agreement, exclude the Company from possession of the Leased Premises
and shall use its best effort to lease Company’s interest therein to another
party for the account of City holding Company liable for all rents and other
amounts due under this Agreement and not paid by such other party.
(c) The City may take whatever other action at law or in equity as may appear
necessary or desirable to collect the rent then due and thereafter to become
due from Company or to enforce performance and observance of any
obligation, agreement or covenant of the Company under this Agreement.
(e) If the City and the Company disagree with respect to Company’s obligations
to pay money under this Agreement, Company may pay the amount under
protest and such payment shall not prejudice Company’s right to recover the
disputed amount if it is determined that such payment was not due.
Section 15.3: Non-Exclusive Remedy. No remedy herein conferred upon or
reserved to the City is intended to be exclusive of any other available remedy or
remedies but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this Agreement.
Section 15.4: Legal Fees. In the event there should be a default under any of the
provisions of this Agreement and the City should determine that the services of an
attorney are required or the City incurs other expenses for the collection of rent or
the enforcement of performance or observance of any obligation or agreement on
the part of Company, the Company agrees that it will on demand therefor pay to the
City the reasonable, just and necessary fees of such legal and other reasonable
incurred expenses.
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SECTION 16
ASSIGNMENTS, SUBLETTING, TERMINATION AND ENCUMBRANCES
Section 16.1 Assignment and Subletting
(a) Company covenants and agrees that it will not sell, convey, transfer or assign
this Agreement or any part thereof or any rights created thereby or sublet the
Leased Premises covered by this Lease or any part thereof without the prior
written consent of the Director provided, however, that Company shall have
the right to assign its interest hereunder or to sublet the Leased Premises to
any subsidiary, affiliate or successor company thereof upon the condition that
the Company hereunder shall remain liable for the full, faithful and complete
performance of this Agreement. Upon approval of the Director, Company
may sublet the Leased Premises subject to Company and Sub-Company
remaining liable for the full faithful and complete performance of this Lease
both pre-assignment and post-assignment. Such approval will consider the
effect such sale, conveyance, transfer or assignment will have on the
continued performance of successor company under this agreement and its
response to the request for proposal. Director may withhold written consent
under this section for any reason.
(b) If, without the prior written consent of the Director, the Company assigns,
sells, conveys, transfers or sublets in violation of Section (a) of this Section or
if the Leased Premises are occupied by anybody other than the Company, as
provided in this Lease, the City may collect rent from any assigns, sub-
Company or anyone who claims a right to this Agreement or who occupies
the Leased Premises and the City shall apply the net amount collected to the
rental herein reserved but no such collection shall be deemed a waiver by the
City of the covenants contained in subdivision (a) of this Section or an
acceptance by the City of any such assignee or sub-Company.
(c) Any assignment or transfer of this Agreement or any rights of Company
hereunder (except as otherwise permitted herein) whether it be a voluntary
assignment without the consent of Director or an assignment or transfer by
operation of law, shall be null and void and shall constitute a default on the
part of the Company.
Section 16.2 Termination by Company. If not in default in any of its obligations
hereunder, Company may at its option terminate this Agreement by giving the
Director thirty (30) days’ written notice thereof if any of the following shall occur:
(a) The City shall fail to remedy any breach by it of any of the covenants and
agreements herein contained within thirty (30) days after receipt of a written
notice by the Company of the existence of such breach.
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(b) To the extent within its reasonable control, the City fails, for a period of thirty
(30) days after receipt of a written notice by the Company to remove any or
take the reasonable steps to remove a condition of the Airport caused by the
act or omission of the City and such condition results in Company’s inability to
conduct business operations at the Airport.
(c) The condemnation and taking by authority of eminent domain of the Leased
Premises or any part thereof that substantially renders unusable the operation
by Company of its authorized business at the Airport.
SECTION 17
MISCELLANEOUS
Section 17.1 Consents and Approvals
(a) With respect to the approvals herein required of the Company, Company shall
from time to time furnish to the City appropriate certifications setting forth the
officers or representatives of Company who are authorized to grant such
approvals and to bind the Company thereto.
(b) The City’s Airport Director may give any consent or approval herein re quired
of the City unless otherwise provided.
(c) All consents and approvals required or permitted herein by either party shall
be given in writing.
Section 17.2 Notices All notices required or permitted to be given to the City or
Company shall be deemed sufficiently given if in writing and sent either
by registered mail or certified mail, postage prepaid, addressed as
follows, or to such other address or addresses as the City or Less
City: Company:
Director of Aviation,
Traffic & Transportation
Wichita Falls Regional Airport
2100 Seymour Highway
Wichita Falls, Texas 76301
Section 17.3 Brokerage. The Company represents and warrants that no brokers
have been concerned on their behalf in the negotiation of this Agreement and that
there are no such brokers who are or may be entitled to be paid commissions in
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connection therewith. Company shall hereby indemnify and save harmless the City
of and from any claim for commission or brokerage made by any such brokers when
such claims are based in whole or in part upon any acts or omissions by Company.
Section 17.4 Force Majeure. Neither the City nor Company shall be deemed in
default hereunder if either party is prevented from performing any of its obligations,
other than the payment of rentals, fees and charges hereunder, by reasons of
strikes, boycotts, labor disputes, embargoes, shortages of energy or material, acts of
God, acts of the public enemy, acts of superior governmental authority, weather
conditions, floods, riots, rebellion, acts of sabotage or any other circumstances for
which it is not responsible or which are not within its control.
Section 17.5 Entire Agreement. This Agreement constitutes the entire agreement
between the City and Company.
Section 17.6 Lease to Federal Government. During time of war or national
emergency, City shall have the right to lease the landing area or any part thereof the
leased premises to the United States Government for military use and if any such
lease is executed, the provisions of this Agreement insofar as they are inconsistent
with the provisions of the lease to the Government, shall be suspended but such
suspension shall not extend the term of this Agreement, without written approval by
the City.
Section 17.7 Place of Performance; Laws Governing Venue . This Agreement
shall be performable and enforceable in Wichita County, Texas, and shall be
construed in accordance with the laws of the State of Texas. Venue for any cause
of action shall be Wichita County, Texas.
Section 17.8 Severability. Should any part of this Lease be held to be invalid, such
invalidity shall not affect the balance of that provision or the remaining provisions of
this Lease, which shall remain in full force and effect.
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IN WITNESS WHEREOF this Agreement has been entered into and is effective as of the
Effective Date and has been executed in quadruplicate original counterparts by the
respective officers of the parties hereto as of the dates noted below.
City of Wichita Falls, a Municipal Corporation
By: ____________________________ By: ________________________
Darron Leiker, City Manager
Date: ___________________________ Date: ________________________
APPROVED:
________________________
Julia Vasquez
Acting City Attorney
ATTEST: ATTEST:
_______________________ _____________________________
Tracy Norr
City Clerk
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