REQUEST FOR PROPOSALS FOR DESIGN, CONSTRUCTION AND OPERATION OF NEWS, GIFT and SPECIALTY RETAIL PACKAGE AT THE LOUIS ARMSTRONG NEW ORLEANS INTERNATIONAL AIRPORT BY CITY OF NEW ORLEANS BY AND THROUGH THE NEW ORLEANS AVIATION BOARD City of New Orleans Request for Proposals #8910-02071
PROPOSED SCHEDULE
A. RFP Release Date September 2, 2016
B. Mandatory Pre-Proposal & DBE Outreach Meeting 2 PM CT September 28, 2016 Louis Armstrong New Orleans Int’l Airport (Concourse A)
C. Last Day for Questions December 2, 2016
D. PROPOSAL SUBMISSION DEADLINE 4 PM CT DECEMBER 9, 2016
E. Technical Review of Proposals December 2016
F. Evaluation Committee Meeting January 5, 2017
G. Proposer Interviews (if requested) January 12, 2017
H. Award Notification (Approximate) January 19, 2017
I. City’s Transportation and Airport Committee Meeting February 7, 2017
J. Introduce at City Council February 16, 2017
K. City Council Approval March 16, 2017
L. Execution of Agreement April 1, 2017
M. Tenant Design Period April - August, 2017
N. Final Tenant Design Approval September 21, 2017
O. Construction NTP December 1, 2017
P. Operational Readiness, Activation and Transition August 1, 2018
Q. Date of Beneficial Occupancy October 1, 2018
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 1 of 29
Proposals should be addressed to:
Department of Finance/Bureau of Purchasing Attention: Nat Celestine, Assistant Purchasing Administrator New Orleans City Hall 1300 Perdido Street Room 4W07 New Orleans, Louisiana 70112
Delivery of Proposals: All Proposals MUST BE DELIVERED BY U.S. POSTAL SERVICE. No other form of delivery is acceptable under Louisiana Public Lease Law.
Point Of Contact:
All correspondence and other communications regarding this RFP should be directed to [email protected].
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New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 2 of 29 TABLE OF CONTENTS
I. INTRODUCTION A. Request for Proposals B. Goals of the Program C. Background 1. Airport Background 2. Existing NGS Program 3. Additional Concession Locations
II. DEFINED TERMS
III. RFP PROCESS A. Mandatory Pre-Proposal Conference B. Questions and Addenda C. Supporting Documents D. Cone of Silence E. Minimum Qualifications F. Office of Inspector General
IV. BUSINESS TERMS A. Leased Premises B. Term C. Concession Rent D. Design and Construction Requirements and Minimum Capital Investment E. Mid-Term Refurbishment F. ACDBE Participation G. Pricing Policy H. Hours of Operation I. Marketing Program J. Performance Guarantee K. Worker Retention Requirements L. First Source Recruitment of Work Force M. Utilities
V. PROPOSAL INSTRUCTIONS AND REQUIREMENTS A. Proposal Delivery B. Proposal Deposit C. Proposal Contents
VI. PROPOSAL EVALUATION A. Evaluation and Selection Process 1. Evaluation 2. Interview and Field Evaluations (if requested) 3. Recommendation by Evaluation Committee 4. Approval by Board 5. Presentation to the Board
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 3 of 29 6. Approval by City Council 7. Award of Agreement B. Evaluation Criteria
VII. GENERAL TERMS AND CONDITIONS A. Ownership of Proposals B. Costs of Preparation C. Causes for Disqualification D. Effect E. Conflicting Provisions F. Cancellation and Rejection of Proposals G. Disputes H. Public Trust I. Title VI Solicitation Notice J. Fair Labor Standards Act K. Occupational Safety and Health Act of 1970
ATTACHMENTS Attachment A Concept Descriptions and General Operating Standards Attachment B News, Gift and Specialty Retail Package Premises Attachment C Design Criteria Manual Attachment D Schedule of Contract Participation and ACDBE Commitment Forms Attachment E Draft Lease Agreement (Non-Negotiable) Attachment F Existing News, Gift and Specialty Retail Revenue Attachment G Enplanement Data by Airline Attachment H Enplanement Forecast Attachment I Office of Inspector General Attachment J Payment Proposal Form Attachment K Facility Build-Out Investment Proposal Form Attachment L Non-Collusion Affidavit Attachment M Bidder Attestation Attachment N Sample Agreement & Proposal Affidavit Attachment O Proposal Checklist Attachment P Technical Overview (www.cityblueprint.com) Attachment Q Work Force Development
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 4 of 29 SECTION I - INTRODUCTION
1. Request for Proposals The City of New Orleans (“City”) by and through the New Orleans Aviation Board (“NOAB”) is seeking competitive Proposals from interested and qualified Proposers with demonstrated expertise desiring to design, construct and operate on a non-exclusive basis a News, Gift and Specialty Retail Concession Package (“NGS Package”) at Louis Armstrong New Orleans International Airport (“Airport”) for the new North Terminal (“Terminal”). This Request for Proposal (“RFP”) is to solicit Proposals for two (2) NGS Packages at the Airport, NGS Package 1 and NGS Package 2. NGS Package 1 consists of 9,410 square feet and NGS Package 2 consists of 9,326 square feet. A description of the types of news, gift and specialty retail concepts envisioned by NOAB for the Airport’s news, gift and specialty retail program is provided in Attachment A and Attachment C.
Since both Packages are nearly identical, proposers are limited to submitting one Proposal for both NGS Packages. The two (2) highest ranked Proposers will be awarded the two (2) available packages. The Proposer with the highest score will have first choice of the two (2) available NGS Packages. Proposers may not submit a contingent Proposal.
Proposers should submit as if they are proposing on Package 1, plus the Liquor Store/ Market Place included in Package 2. If selected for Package 2 the pre-security kiosk and duty free/ duty paid locations will not be awarded to the selected Proposer.
It is the intent of the NOAB to have a diverse concession program with limited duplication of concepts. The NOAB reserves the right to determine what concepts may be allowed to be duplicative during the selection process. The NOAB reserves the right to limit any duplicative concepts in order to encourage competition among Concessionaires and diversify the brand offerings within the terminal.
The purpose of this RFP is to select Proposers who can best fulfill NOAB’s vision and goals as delineated in this RFP. The successful Proposers will enter into a Lease Agreement (“Agreement”) with NOAB to design, construct, manage and operate the NGS Packages, located in the North Terminal. The draft Agreement can be found in Attachment E.
At or around the same time as this RFP is advertised, the Airport will be advertising a separate RFP for two (2) Food & Beverage (“Food & Beverage”), and a separate RFP for one (1) Full Service Casual Dining Restaurant on the west side of the Head House. All News & Gifts locations, except for the News & Gifts units in the Head House, will be able to sell freshly brewed coffee, pre-packaged sandwiches and salads, healthy snacks, etc.
As the first and last impression of this great city, it is imperative that Proposers develop a world-class news, gift and specialty retail program that will reflect the region’s rich cultures and provide passengers with a variety of product choices, including national brands. Proposers are encouraged to feature locally recognized brands and merchandise.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 5 of 29 In addition, the facilities’ designs should convey a sense of place that complements the new North Terminal’s clean and modern design, while acknowledging New Orleans roots in a unique and metaphorical manner. Design should also convey the brand to draw passenger interest.
This RFP has been developed so Proposers can follow a step-by-step process from Proposal preparation, to submittal, evaluation and award. Proposers may not rely on any implied representations or warranties (the existence of which are hereby disclaimed), or the accuracy of projections or prospective information provided in connection with this RFP. Proposers should make independent and expert investigation and evaluation of all information provided in connection with this RFP.
IT IS IMPERATIVE THAT ALL PROPOSERS READ, REVIEW AND UNDERSTAND THIS RFP AND ALL ATTACHMENTS. ATTENTION SHOULD BE SPECIFICALLY DIRECTED TO THE AGREEMENT ATTACHED. SPECIFIC TERMS AND CONDITIONS OF THE AGREEMENT TO BE AWARDED UNDER THIS RFP ARE CONTAINED HEREIN.
The NOAB will not be responsible for any loss due to the Proposer’s failure to investigate and evaluate all pertinent information necessary to design, construct, and operate this news, gift and specialty retail program.
All submitted Proposals will be considered the Proposer’s best and final offer, which cannot be modified or supplemented by the Proposer after submission.
The draft Agreement attached to this RFP is the Agreement that will be used with the parties to whom the NGS Packages are awarded. By submitting a Proposal, Proposers accept and acknowledge the terms of the Agreement and that said terms are not negotiable or subject to revision.
B. Goals of the Program
The City desires to have an award-winning concessions program that celebrates New Orleans, appeals to both the local and visiting passengers, with varying levels of discretionary funds. The City strongly desires brands with national and local notoriety, especially with regard to the specialty retail concepts. It is the expectation that concepts are visually appealing, provide a strong sense of place but do not alienate the uniqueness of each brand, and allow for the unobstructed views to the airfield or gates.
The City envisions highly trained, customer service focused staff. The use of technology to improve customer service is encouraged, but done so in a complimentary fashion, allowing guests to experience the genuine New Orleans southern hospitality. It is the City’s goal to provide users of the Airport with a memorable experience through the sale of high quality merchandise at competitive prices and an excellent level of service.
The program should achieve a balance of merchandise options and a high level of customer service with a wide range of price points to maximize the financial return to the
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 6 of 29 Airport and provide a reasonable return on investment to the successful Proposer and its subtenants. The goals of the program include the following:
• Develop an award-winning concessions program.
• Increase customer satisfaction and spend per passenger by providing excellent offerings responsive to the needs and desires of customers, with a wide range of price points, and outstanding customer service.
• Enhance the economic well-being to the community through increased opportunities for local businesses and local ACDBE operators.
• Provide flexibility to respond to changes in the airport and airline industries over the term of the contract.
• Optimize non-airline revenue to the Airport.
C. Background
1. Airport Background
The initial design concept for the North Terminal at Louis Armstrong New Orleans International Airport was developed by iconic architect Cesar Pelli and has advanced into a 700,000 square foot, thirty (30) gate, state-of-the-art airport with capacity to expand to 42 gates.
The design of the North Terminal embraces the rich natural and cultural history of New Orleans; the mighty Mississippi, the sultry bayous, rich cuisine, live music, the joie de vivre of its citizens. The concept of lightness and openness is a guiding design principal in the exterior design. The building features vast expanses of curtain wall which contribute to an interior bathed in natural light that connects directly to the exterior. The exterior fenestration is modern, finely detailed and delicately scaled. The curvilinear exterior forms accentuate the sensuality of the region.
Not only is the interior of the North Terminal filled with natural light, it contains high volume spaces that are open and spacious. With very few interior walls, one can enjoy an unobstructed view from the rear of the Ticket Lobby to the southernmost curtain wall overlooking the aircraft on the ramp. The Terminal features a central three story atrium as well as an expansive two story overlook to the concourses above security check-in. Over ninety percent of the concourse exterior walls are glass.
The interior finishes of the Terminal, while modern, draw their inspiration from a long history of the authentic, lush and rich textures and materials typical of New Orleans interiors. Against a crisp modern background, the airport contains feature elements that are cleanly articulated and opulent in character.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 7 of 29 2. Existing News, Gift and Specialty Retail Program
The existing south terminal news, gift and specialty retail program is under an exclusive agreement with New Orleans Air Ventures II (NOAV II), a Joint Venture of Airport Management Services LLC d/b/a Hudson Group, Concourse Ventures, Inc., and Newburns Management Group, LLC, which expires in 2018. In 2012, NOAV II agreed to renovate and bring in new concepts that reflect the city. As a result of the renovations, increased traffic, and changes to operations made with the passengers in mind, the news, gift and specialty retail program has seen significant growth. See Attachment F.
3. Additional Concession Locations
In the event the Airport is required to expand beyond the initial 30 gates prior to October 1, 2018 opening date, the Airport will seek Proposals from the two (2) successful Proposers to add any additional concessions space to their Agreement. NOAB may determine at a later date the basis for selection of a Proposer(s).
SECTION II – DEFINED TERMS
A. The Agreement refers to the Lease and Concessions Agreement attached hereto as Attachment E.
B. The Airport shall mean the Louis Armstrong New Orleans International Airport.
C. The Board and/or NOAB shall mean the New Orleans Aviation Board.
D. The City shall mean the City of New Orleans.
E. The Director means the Director of Aviation of the Airport. The Director has the right to make changes to the operation of the Airport, including concessions, from time to time. All determinations regarding conflicts of interest will be made at the sole discretion of the Director, whose decision is final.
F. The Evaluation Committee shall mean that committee referenced in Section VI – Proposal Evaluation of this RFP and which shall be tasked with the review and scoring of the Proposals.
G. The Leased Premises shall refer to the premises listed in the Agreement (Attachment B), and shall consist of approximately 9,410 square feet for Package 1 and 9,326 square feet for Package 2.
H. Proposal(s) shall mean any Proposal(s) submitted in response to this RFP.
I. Proposer(s) shall mean any entity that submits a Proposal in response to this RFP.
J. The RFP shall mean this Request for Proposals.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 8 of 29 K. Successful Proposer or Concessionaire shall mean the Proposer that is awarded the Agreement by the NOAB and approved by City Council.
SECTION III – RFP PROCESS
A. Mandatory Pre-Proposal Conference
A mandatory pre-proposal meeting will be held on September 28, 2016 in Concourse A of Louis Armstrong New Orleans International Airport. Interested Proposers must send a qualified representative who is able to represent its company’s best interests at the mandatory pre-proposal conference.
The NOAB will issue an addendum to the RFP with the sign-in sheets, listing the names of attendees, their representative firms and contact information; and a copy of the pre- proposal meeting presentation.
B. Questions, Issues, Discrepancies and Addenda All questions regarding this RFP should be submitted in writing to: [email protected]. Any questions not provided in writing will not be answered. Any verbal responses received to questions are not official until provided in writing. All questions will be responded to in writing. The last day to submit questions is 4:00 p.m. Central Time on December 9, 2016. Any questions received after that time will not be considered. Copies of the RFP, any/all addenda, answers to questions, and related information are available on the City’s website: www.purchasing.nola.gov.
1. Any change to the RFP or related documents will be made by a written addendum and available on the City’s website: www.purchasing.nola.gov.
2. If discrepancies or omissions are found by any prospective Proposer or there is doubt as to the true meaning of any part of this RFP, including any of its attachments, a request for clarification or interpretation must be in writing to [email protected].
3. Any questions, issues or disagreement regarding the terms, requirements or form of this RFP must be raised in advance of submittal of Proposals and must be in writing to [email protected]. Any issues not raised in advance of the submittal date shall not be a basis to thereafter challenge this RFP or the award of any Agreement resulting from this RFP.
C. Supporting Documents
Supporting Documents to the technical overview (Attachment P) are available at www.cityblueprint.com and its Project Planroom along with full bid documents titled “RFP for Airport Concession Package.”
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 9 of 29 D. Cone of Silence
From the date the RFP is issued through the time the contract is approved by New Orleans City Council, Proposers shall not contact any members of City or Airport staff, City Officials, Board Members, Elected Officials or their advisors or consultants, including but not limited to the Crescent City Aviation Team (a joint venture of Leo A Daly and Atkins) and Parsons Brinkerhoff, in any way related to this RFP and RFP process except in writing to Airport Procurement at [email protected] as described herein. Proposers who violate this Cone of Silence may be deemed non- responsive and their Proposal may be rejected for cause.
E. Minimum Qualifications Experience
Each Proposer, or its majority partner must have contracted, or been a majority partner of a contract to manage and operate multi-unit retail concessions programs for three (3) continuous years within the last five (5) years. At least one (1) of these news, gift and specialty retail programs must have generated at least $10 million in annual gross sales for one (1) of the three (3) years.
F. Office of Inspector General (“OIG”)
The New Orleans Office of the Inspector General (OIG) reviews all solicitations issued and Proposals received by the Airport. The OIG will be actively monitoring all aspects of this solicitation process. There is no cone of silence for the OIG and Proposers are encouraged to report any concerns to the OIG. Additional information about the OIG can be found in Attachment I.
SECTION IV – BUSINESS TERMS
A. Leased Premises
See Attachment B and Attachment C for descriptions for all leased premises.
B. Term
The term for each package shall start on the day the North Terminal becomes operational, currently scheduled for October 1, 2018. The length of the term shall be seven (7) years with one (1) one (1) year renewal term that may be awarded at the sole option of the Board.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 10 of 29 C. Concession Rent Rental Retail Concept/Product Description Percentage
News & Gifts units a) Reading Materials (periodicals & books) 12% b) Sundries, Packaged Snacks & Bottled/Canned Beverages 14% c) Electronics 15% d) Food and Beverage (pre-packaged sandwiches, coffee, pastries and bagels, fountain drinks, etc.) 15% e) Gifts, Souvenirs and all Other Merchandise 18%
Specialty Retail a) National brand or owner operated local concept, except electronics 12% b) Electronics Store 1. Hardware merchandise – national brand 6% 2. All other electronics merchandise 15% c) Specialty Retail – proprietary 18% D. Design & Construction Requirements
Each unit shall be designed in accordance with Tenant Design Criteria (Attachment C) and constructed according to the Construction Standards and Procedures. It is the NOAB’s desire that concepts maintain open architecture where necessary, utilizes high end finishes, and provides experience through references of local landscapes and knowledge.
Successful Proposer will only be provided with slabs and access to utilities within the immediate area (See Attachment C). Concessionaire will be required to construct and provide all fixtures for each unit. The Minimum Initial Capital Investment is three hundred and twenty-five dollars per square foot ($325.00/SF) for all spaces.
E. Mid-Term Refurbishment
At or about the mid-point of the Term, but no later than February 1, 2022 Concessionaires will be required to complete a mid-term reinvestment in their Premises. The amount of the mid-term reinvestment will be equal to 1% of gross sales generated to date. All mid-term refurbishments are subject to approval by the Board.
Concessionaire may not be required to make a mid-term reinvestment prior to February 1, 2022 to a particular unit if that unit has been required by the Board to change its concept due to poor financial performance. In such an event Concessionaire must make a mid- term reinvestment in that unit five (4) years after completion of any re-concept of the unit.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 11 of 29 F. ACDBE Participation
It is the policy of the New Orleans Aviation Board (NOAB) that Disadvantaged Business Enterprises (DBEs) as defined in 49 CFR Part 26 of the Code of Federal Regulations shall have a level playing field upon which to compete for opportunities. DBEs must meet eligibility guidelines set forth in 49 CFR Part 26 and the certification requirements of the NOAB. ACDBEs must meet the requirements of 49 CFR Part 23 and the certification requirements of the NOAB. The DBE program requirements set forth in Attachment D, Disadvantage Business Enterprise Participation shall apply to this solicitation.
The NOAB has set the following Airport Concessions Disadvantaged Business Enterprise (ACDBE) goals:
• ACDBE Direct Participation Goal is 35.86% of which at least 12.54% must be attained through Joint Venture participation
• ACDBE Goods & Services Goal is 20.09%
The direct participation goal can be achieved through direct ownership, joint venture participation, owner/operator agreements or sublease agreements for news, gift and specialty retail operations.
The NOAB desires to achieve, to the greatest extent possible, quality participation by certified ACDBE firms. Proposers are challenged to present a responsible plan that provides for participation that is commercially meaningful and useful. Proposals will be evaluated, in part, on the Proposer’s stated intention to ensure quality participation. If a Proposer does not meet the ACDBE participation goal, the Proposer should include documentation justifying the failure to meet this goal. Such justification should be supported by written documentary evidence of efforts to secure ACDBE participation or evidence of the unavailability of potential ACDBE participants.
G. Pricing Policy
Concessionaires shall provide quality news, gift and specialty retail at prices that do not exceed ten percent (10%) above the same prices charged for the identical or similar products at identical or similar locations in the New Orleans metro area. Upon completion of the annual pricing comparison report by the Concessionaire and approval from the Board, Concessionaire may change prices as the market dictates.
1. Nationally and locally branded concepts shall be compared to three (3) locations of the same brand selected by the Concessionaire and approved by the Airport. Locations found closer to the Airport shall not be left out of comparisons in favor of locations located closer to the French Quarter or the Central Business District.
If three locations of the same brand are not located in the New Orleans metro area Concessionaire shall follow the policy in 2.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 12 of 29 2. For proprietary concepts or concepts that do not have a street side location in the New Orleans metro area, prices charged shall be compared to three (3) locations of similar concepts found in any of the following locations: (i) Lakeside Mall, (ii) Canal Place, (iii) Clearview Mall, (iv) Elmwood Eateries, (v) Jefferson Parish, or (vi) any location selected by the Concessionaire and approved in writing by the Board.
a. News and Gift (Convenience) locations are comparable with neighborhood convenience stores such as Walgreens and Rite Aid, as well as national gas stations like Shell and Exxon. At least one (1) neighborhood convenience store or national gas station must be used as a comparison in reports for News and Gift (Convenience) locations.
3. Unless approved in writing by the Board, concepts located inside of hotels, stadiums, arenas, movie theaters, and amusement parks shall not be used in pricing comparison reports.
4. Advertised Sales or Promotions. Concessionaires are required to participate in all advertised sales and promotions conducted by its parent corporation, its company, its franchisor, or its selected operating brands. Concessionaires are allowed to markup items included in national advertising programs by no more than ten percent (10%).
a. Concessionaire shall make every reasonable effort to ensure that all corporate advertisements that list multiple locations include Airport location(s).
b. The use of sales, promotions, and gimmicks may not be used to maintain compliance with the Pricing Policy.
H. Hours of Operation
Concessionaires shall maintain hours of operation from (i) two hours prior to the first departure and remain open until the last flight departure or (ii) 4:30 am till 9:00 pm, whichever results in longer hours of operation.
1. Deficiency Penalty-Hours of Operations. Concessionaires are subject to a Deficiency Penalty for each unit that fails to maintain standard Hours of Operation. The Deficiency Penalties that may be assessed shall be equal to one hundred dollars ($100.00) per occurrence. For example if a unit fails to open on time (1st occurrence) and then closes early (2nd occurrence), the Concessionaire will be assessed two (2) Deficiency Penalties.
2. Late/Delayed Flights. During times of irregular operations and/or flight delays, Concessionaires will be required to keep at a minimum one (1) concept open until any delayed flights begins its boarding process.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 13 of 29 I. Marketing Program
Concessionaires shall expend one half of one percent (0.5%) of Gross Revenues for the marketing and promotion of Concessionaires locations. Funds shall be spent on music programs, in terminal advertising, secret shopper programs, loyalty programs, passenger demographic studies (not to exceed 25% of expenditures), coupons, or any other approved promotion. Concessionaires are strongly encouraged to partner with local musicians; nonprofit organizations to bring regularly scheduled concerts to the Airports main stage located in the baggage claim and within the concessionaire’s premises. Concessionaires and NOAB shall meet quarterly to review and approve marketing program initiatives.
J. Worker Retention Requirements
The Airport is dedicated to exceptional customer service and will require the successful Proposers to operate concession spaces in an efficient, customer friendly, well-run manner to meet the needs of customers.
Existing concession employees who have worked at the Airport have developed invaluable knowledge and experience regarding the Airport’s operations and the professional handling of conditions specific to an airport, such as sudden influxes of customers during peak periods of the day, changes in airline schedules, impact of weather conditions, interfacing with Airport and TSA security requirements, and other situations unique to airport operations.
To further ensure that concession services are not interrupted upon the NOAB/City entering into new concession service contracts, each Concessionaire shall offer continued employment to the employees of the immediately preceding concessionaire for a period of 180 days, unless a Concessionaire determines and demonstrates to the NOAB’s satisfaction that such employees are unnecessary for the Concessionaire’s provision of concession services, or that such employees do not have the experience required for the Concessionaire’s provision of concession services. Employees retained may be terminated for cause within the 180-day period. However, this worker retention requirement shall not apply to employees who are exempt from overtime compensation requirement of the federal Fair Labor Standards Act. Nothing in this provision obligates a Concessionaire to continue the employment of any individual beyond such 180 day period.
Each Concessionaire and its subtenants and/or joint venture partners may only interview employee candidates outside this group of incumbent retail concession employees when there are no longer any employees of the current news, gift and specialty retail concessionaires available to hire in similar job classifications.
Each Concessionaire shall ensure that all subcontracts for operating concessions at the Airport contain the above worker retention requirement.
K. First Source Recruitment of Work Force
When there are no more current concession employees available to hire in similar job
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 14 of 29 classifications, the successful Proposer, its subcontractors and subtenants shall utilize the City’s government office, The Office for Workforce Development (“OWD”), as its first source (“First Source”) for recruitment, referral, and placement of all new hires for employment opportunities at the Airport. The successful Proposer and its subcontractors and subtenants shall notify OWD of its specific need for new employees at least five (5) business days before advertising the employment opportunity to the general public. Specific needs shall include, at a minimum, the number of employees needed by job title, qualifications, hiring date, rate of pay, hours of work, duration of employment, and a brief description of the work to be performed. OWD will screen applicants and provide the Proposer and its subcontractors and subtenants with a list of qualified candidates according to the specific needs set forth by the successful Proposer or its subcontractors or subtenants. The successful Proposer or its subcontractors or subtenants shall assess qualified candidates and notify OWD of those referred First Source candidates solicited who are deemed unqualified and the reason(s) why they failed to qualify for employment. This First Source program does not limit the successful Proposer or its subcontractors or subtenants' ability to assess qualifications of prospective candidates for employment. Nor does this provision make final hiring and retention decisions. Rather, all hiring decisions are left to the successful Proposer or its subcontractors or subtenants and this First Source program is simply a tool to be used for recruitment, referral and placement of new hires. By submitting a Proposal, a Proposer acknowledges that it shall use OWD as its first source for recruitment, referral, and placement of all new hires for employment opportunities created by this opportunity. The Proposer will include the requirements of this provision in all joint-venture agreements, leases, subleases, and subcontracts regarding news, gift and specialty retail concessions at the Airport.
Attachment Q provides additional information regarding the requirements of the City’s Work Force Development program.
L. Utilities. Electrical, Water, and Gas service shall be separately metered by unit. Concessionaires shall be directly invoiced by the service provider and shall be responsible for the maintenance of the systems. Should a shared service program be implemented by the Board, Concessionaires will be required to participate.
SECTION V- PROPOSAL INSTRUCTIONS AND REQUIREMENTS
A. Proposal Delivery
1. Proposers must submit in an appropriately sized and sealed box: 2. Ten (10) bound and tabbed copies of the Proposal; 3. Two (2) digitally signed copies of the Proposal on a CD, DVD or flash drive in PDF format; 4. Ten (10) Payment Proposals in a separate sealed envelopes; and 5. Proposal Deposit. ALL MATERIALS MUST BE DELIVERED BY U.S. POSTAL SERVICE.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 15 of 29 NO OTHER FORM OF DELIVERY IS ACCEPTABLE UNDER LOUISIANA PUBLIC LEASE LAW.
Proposals should be addressed to:
Department of Finance/Bureau of Purchasing Attention: Nat Celestine, Assistant Purchasing Administrator New Orleans City Hall 1300 Perdido Street Room 4W07 New Orleans, Louisiana 70112 Proposals must be received not later than December 9, 2016 at 4:00 PM CT.
B. Proposal Deposit
Companies submitting proposals shall provide Proposal Deposits in the amount of fifty thousand dollars ($50,000.00). Proposal Deposits must be in the form of a certified check, a cashier’s check, or a Proposal Bond in such form and substance acceptable to NOAB. Checks should be made payable to the New Orleans Aviation Board.
If the successful Proposer(s) fails or refuses to execute the negotiated Agreement, the sum of the Proposal Deposit will be retained by the NOAB, not as a penalty, but as liquidated damages. The damages resulting from failure to enter into an executed Agreement are difficult to ascertain, and the entire sum of the Proposal Deposit is a reasonable estimate of these damages.
No interest will be paid to Proposers on this Proposal Deposit.
If a Proposer is notified that it has been unsuccessful or disqualified, the deposit will be returned. If a Proposer is successful, the Proposal Deposit will be returned upon execution of the Agreement and a Rent Security Deposit will be required.
C. Proposal Contents
The following components are to be considered as contents for a complete Proposal. The Evaluation Committee will evaluate and compare only those Proposals that substantially conform to the terms and conditions of the RFP. The Evaluation Committee and NOAB expressly reserve the right to reject any and all Proposals and to waive administrative or technical informalities. Proposals will remain valid for 180 calendar days after the deadline for submission of Proposals and may be extended beyond that time by mutual agreement. Proposals should be: • Printed on 8 ½” x 11” paper o Renderings may be printed on 11” x 17” paper • Sequentially numbered • Tabbed • Spiral Bound
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 16 of 29 • In the event of short-list interviews, Proposers may provide material boards no larger than 20” x 30” in size
1. Tab 1 - Letter of Interest
Proposer should provide a signed cover letter of interest which includes Proposer’s name, address, and primary contact for the Proposal and indicates Proposer’s request for consideration. The letter of interest should clearly demonstrate Proposer’s interest in performing development, construction and operating services for a NGS Package at the Louis Armstrong New Orleans International Airport. The letter should also identify the composition of the Proposer’s team, including joint venture partners and subtenants, if any. Proposer should state the ownership interests of each joint venture partner, if any. The letter should also identify ACDBE partners participating in the Proposal. The letter of interest should be signed by Proposer’s authorized representative. 2. Tab 2 - Proposer and Proposer’s Partners’ Qualifications, Capabilities, and Experience
Provide a detailed company history, highlighting Proposer and Proposer’s partners operating experience.
A. For Proposers, provide information on the news, gift and specialty retail operating experience for both airport and non-airport facilities. Provide a listing of all facilities/concepts for up to seven (7) of the largest airport or non-airport locations. Proposer’s experience should be for three (3) continuous years within the last five (5) years. At least one (1) of these news, gift and specialty retail programs must have generated at least $10 million in annual gross sales for one (1) of the three (3) years. Include in this listing the location, name of facility, name of concept, square footage, type of operation, annual gross revenues for the past five (5) years, annual rent for the past five (5) years, contract dates, and complete details of the rent structure including percentage rents for different product groups. B. For Proposer’s joint venture partners and subtenants (if any), provide information on their news, gift and specialty retail operating experience. Provide a listing of no more than three (3) facilities/concepts they have or continue to operate. The experience should be within the last five (5) years. The information should include location, name of facility/concept, square footage, type of operation, annual gross revenues for the past five (5) years, annual rent for the past five (5) years, and contract dates. C. Proposers should include a list of airport references with contact information.
3. Tab 3 - Proposed Concept Plan and Menus
A. Concept Proposer must submit relevant information in sufficient detail to clearly define the proposed concept or theme for each location. It is strongly
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 17 of 29 suggested that Proposers propose concepts that meet the general descriptions of the locations as specified in Attachment A. Clearly communicate how the proposed concepts would be the best fit for the specified location. Proposers may offer three (3) alternate concepts, one of which should be an alternate coffee concept. The NOAB may, at its sole discretion, choose to substitute the alternate concept proposed for any concept at any location.
1) Name and describe the concept you are proposing for each location.
2) Describe how the concept will meet or exceed the Airport's goals and respond to the needs and preferences of the Airport’s customers.
3) If available, provide photos of other locations where this concept has been successful. Include photos of store exterior, interior, signage, menus or any other visual information that would effectively communicate the concept.
4) Submit marketing strategies and techniques to promote the concept.
5) Submit data showing how this concept has succeeded elsewhere.
6) Include for each concept (street side or in an airport) any reviews, or awards, from retail, travel, or airport industry publications. 4. Tab 4 - Design and Quality of Improvements The NOAB seeks designs that are high quality from a visual and materials standpoint, contemporary, and complementary to the proposed new North Terminal design (see Attachment C). A. Proposers must submit renderings and layout plans to facilitate the evaluation of the quality and design of the proposed tenant improvements. The required architectural renderings, layout/space plans and narratives are intended to communicate both technical information and the design concept, as well as to provide an experiential sense of the finished scheme. All architectural renderings and layout/space plans must be formatted on 11” X 17” paper, single-sided. Renderings and plans should provide a complete understanding of; 1) Site plan identifying passenger/customer flow. 2) Layout plan showing the location of kitchen/prep areas, hostess stations, queuing areas, bars, seating, etc. 3) Overall design. 4) Color scheme. 5) Furniture, fixtures, finishes casework and equipment. 6) Examples of signage, artwork, or other graphic elements. 7) Examples or written description of how the design integrates with the
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 18 of 29 contemporary style of the new Terminal and imparts a sense of New Orleans. B. Include a materials listing and material boards that demonstrate the image, quality, durability, and colors of the various materials to be used for each concept including; 1) Floor covering 2) Wall covering 3) Ceiling covering 4) Counter materials 5) Kitchen areas (Reminder: certain locations will have kitchen areas that may be visible to the public) C. Propose a milestone design and construction schedule which identifies expected internal and external review periods for authorities having jurisdiction over the process including, but not limited to the NOAB and City of Kenner. Describe major construction elements, processes and sequencing illustrating an understanding of the constrained site, the Construction Manager at Risk’s (CMAR) North Terminal schedule and the scheduled opening date of the North Terminal.
D. Describe how the overall design for each concept complements the concept and will enhance sales.
E. Proposals must show how support space and logistics were incorporated in the design of the space to prevent users of the Airport from seeing “back of house” activities, e.g. trash, storage, cleaning supplies. F. Describe sustainability attributes of the concept being proposed for each location.
5. Tab 5 – Management and Operations Plan
Proposer should also provide details on the pertinent experience of persons who will be directly involved in the day-to-day operations and management of the facilities at the Airport and must specifically identify its on-site manager and assistant manager with resumes attached. A. Specifically identify any locations where the proposed Concession Manager has managed one (1) or more of these types of programs. Provide an organization chart specific to Airport operations, noting decision-making responsibilities.
B. Describe the proposed staffing involved in tenant coordination and management. Proposers must describe staffing levels and schedules to illustrate coverage for a typical week showing the number of employees by title and shifts.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 19 of 29 C. For unit locations that are subleased to other operators, describe how you, the Proposer, will ensure that adequate staffing and coverage will be provided. D. Provide emergency operations staffing procedures. Proposers should describe their procedure for handling emergency situations; security breach, weather, etc. Emergencies can happen during the normal course of the day including but not limited to flight cancellations and diversions. Describe how the operation will adapt in order to supply product to each unit, call in extra staff, hold-over of existing staff, etc.
6. Tab 6 - Staff and Customer Service Initiatives
Recruitment, training, evaluating, and retaining quality sales associates is critical to each concept’s success at the Airport. Please provide the following information and show how the information will be used to accomplish the NOAB’s goals for the news, gift and specialty retail program:
A. Summarize the key components of employee operations, training, and customer service programs. Established handbooks may be provided as samples of employee programs.
B. Describe how Proposer will handle employee transition and the recruitment and hiring of employees that currently work at the Airport Concessions.
C. Describe customer service training programs or any training program unique to the concept.
D. Describe programs, employee retention plans or incentives used to motivate employees.
7. Tab 7 - Marketing Plan
Successful Proposers will be required to expend one half (1/2) of one (1) percent (0.5%) of Gross Revenues towards a marketing plan. Proposers should submit information regarding proposed marketing and promotional activities for the news, gift and specialty retail program. Proposers shall detail how promotional activities will be developed to take advantage of holidays and peak periods, drive new sales and increase passenger spending. Proposers shall also describe how promotions will address the special needs of customers at the Airport. No more than twenty five percent (25%) of marketing expenditures shall be spent on passenger demographic and market studies.
8. Tab 8 - ACDBE Compliance Plan and Schedule of Contract Participation and ACDBE Commitment Forms
All proposals should include a notarized Schedule of Contract Participation and ACDBE Commitment form for each of the aforementioned goals. The form can
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 20 of 29 be found under the Business Opportunities section of the webpage at www.flymsy.com and is also attached to this solicitation as Attachment D. The ACDBE firm(s) participating in the Agreement must perform a commercially useful function.
The City/NOAB affords no preference based upon the geographical area in which an ACDBE firm is located. The City/NOAB shall have the authority to investigate allegations of discriminatory practices of Proposer(s) who contract or seek to contract with the City/NOAB.
Please direct all questions related to ACDBE compliance prior to submission of the solicitation to the NOAB Disadvantaged Business Enterprise Liaison Officer at [email protected].
9. Tab 9 – Pro Forma Operating Statement and Capital Investment
The Proposer must provide a Pro Forma Operating Statement for each unit that indicates the Proposer's projected gross sales and operating expenses per unit for each year of the Agreement. The pro forma will be evaluated by the Evaluation Committee in terms of reasonableness, demonstrated understanding of the proposed concept, viability of the proposed operation and financial offer, and ability to fund continuing operations and the proposed Capital Investment (use Attachment K) from cash flow generated by the business.
Proposers shall submit projections for each concept and provide examples of sales performance for their other concepts/facilities at other airports, street side locations, and/or shopping centers.
10. Tab 10 - Financial Information
A. Financial Statements. Proposers must clearly demonstrate the financial capability to undertake this contract. Proposer, or the majority partner of the Proposer, if the Proposer is a newly formed entity, should provide the latest two full years of financial statements, including a balance sheet, income statement, and statement of cash flow prepared in accordance with generally accepted accounting principles and audited by an independent Certified Public Accountant. If the requested financial statements are not audited by an independent Certified Public Accountant, then a notarized statement, certifying the accuracy of the financial information, signed by the Chief Financial Officer (CFO) of the Proposer or the majority partners of the Proposer, if the Proposer is a newly formed entity, may be substituted for audited statements.
B. Financing Commitment Letters. Proposer should also provide Letter of Intent from a financial institution committing sufficient lending authority to the Proposer to develop the NGS Package as outlined herein in the event of an Agreement is executed with the City if the required Capital Investment will not be self-funded.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 21 of 29 C. Performance and Payment Bonds. The NOAB will require the selected Proposer to provide a Performance and Payment Bond payable to the New Orleans Aviation Board upon execution of the lease agreement. To ensure that the successful Proposer will be able to furnish the required Performance and Payment Bond at the time of executing the lease, Proposers shall provide with its proposal under this Tab a letter from a surety company indicating that the Proposer has been approved for a Performance and Payment Bond in the amount of the Minimum Annual Guarantee.
11. Tab 11 - Other Information
Attach or provide any other information Proposer believes is pertinent to its Proposal, such as other information pertinent to the selection criteria set forth herein and information demonstrating that Proposer will be able to provide the required services as described herein.
12. Tab 12 – Required Forms/Affidavits
Include Non-Collusion Affidavit, Bidder Attestation and Sample Agreement & Proposal Affidavit
13. Payment Proposal
Payment Proposal shall be submitted in a separate sealed envelope. Proposers should state their proposals for payments to NOAB on Attachment J.
SECTION VI– PROPOSAL EVALUATION
A. Evaluation and Selection Process
An Evaluation Committee will evaluate Proposals in accordance with the City of New Orleans Executive Order MJL 10-05 (http://nola.gov/mayor/executive-orders/orders/mjl- 10-05/) to select the Proposals that have achieved the highest and second highest possible score using the Evaluation Criteria found herein.
The City/NOAB will make every effort to administer the RFP process in accordance with the terms and dates discussed in this solicitation. However, the City/NOAB reserves the right to modify the process and dates as deemed necessary at its sole discretion.
The City/NOAB will be seeking the Proposal which yields the greatest benefits to the public in the level of service, types and variety of concepts, and the financial return to the Airport. If there should be a tie in scoring, the Proposer with the highest score on Design & Quality of Improvements will be the tie breaker. In the event, a tie remains; the Prosper with the highest score on Proposed Concepts/Menu Plans will be the tie breaker. The City/NOAB reserves the right to reject all Proposals.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 22 of 29 The successful Proposer, will enter into an Agreement in substantial conformity to Attachment E. The Agreement contains the standard City provisions as well as the appropriate ACDBE provisions and other provisions as NOAB deems appropriate.
During the review of the Proposals, the City/NOAB may:
• Conduct reference checks, and rely on or consider any relevant information from such cited references or from any other sources in the evaluation of Proposals;
• Seek clarification of a Proposal or additional information from any or all Proposers and consider same in the evaluation of Proposals;
• Waive any requests or requirements if such waiver is in the best interest of the City/NOAB;
• Request interviews/presentations with any, some or all Proposers to clarify any questions or considerations based on the information included in Proposals;
• Consider any supplementary information from interviews/presentations or other sources in the evaluation; and
• All information presented in the Proposal may be verified and substantiated during the course of the evaluation process. Proposers may be asked to clarify and/or provide additional information during the Proposal review process. These requests will require prompt action by Proposers.
1. Evaluation
City/NOAB will appoint an Evaluation Committee to evaluate all responsive Proposals and recommend the Proposers to be awarded the Agreements resulting from this RFP. The Evaluation Committee may interview all Proposers or create a short-list of Proposers to interview. A short-list of Proposals, when used, is a list of Proposals identified by the Evaluation Committee, based on the Evaluation Criteria in this RFP, as those that have a substantial chance of resulting in a NGS Package award in comparison to all other responsive Proposals submitted.
The Evaluation Committee will score the Proposals based on the Evaluation Criteria. The individual Evaluation Committee scores will be tallied resulting in an overall score for each Proposer.
2. Interviews and Field Evaluations (if requested) If the NOAB or Evaluation Committee deems it necessary, it may select some or all Proposals as finalists and conduct interviews. Interviews will not have specific scoring criteria but may be used by the Evaluation Committee in the final scoring of the stated Evaluation Criteria. The Evaluation Committee may also conduct unscheduled visits to existing concession locations currently being operated or managed by the Proposer and/or its joint venture and subtenant partners. The
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 23 of 29 Evaluation Committee has sole determination of which Proposers and which concession locations will receive field visits, if any.
3. Recommendation by Evaluation Committee Proposals will be scored by the Evaluation Committee using the Evaluation Criteria. Based on the evaluation criteria and the weighted points assigned to each criterion, the Evaluation Committee will recommend award to the Board based on the total score of the Evaluation Committee.
4. Approval by Board
The Evaluation Committee will make its recommendation to the Board. The Board may take into consideration the recommendations of the Evaluation Committee and may make its decision to award, reject, or table the decision to award the news, gift and specialty retail Agreements.
5. Presentation to the Board Prior to taking any action, the Board has the discretion to require any Proposer to provide additional information to the Board, make a presentation to the Board, and/or appear before the Board to answer questions.
6. Approval by City Council Based on the approval from the Board, the recommendations to award the news, gift and specialty retail Agreements to the Transportation and Aviation Committee of the New Orleans City Council will be made and then submitted to the New Orleans City Council for approval.
7. Award of Agreement
Once the Board and City Council have approved awarding the news, gift and specialty retail Agreements, NOAB will provide an Agreement to be executed by each successful Proposer. There will be no modifications or adjustments made to the Agreement. If the Proposer fails to execute the attached Agreement by the deadline set by the NOAB, the NOAB may select and award to another Proposer.
B. Evaluation Criteria During the review of the proposals, the City/NOAB may:
• Conduct reference checks relevant to the solicitation to verify any and all information, and rely on or consider any relevant information from such cited references or from any other sources in the evaluation of proposals;
• Seek clarification of a proposal or additional information from any or all proposers and consider same in the evaluation of proposals;
• Waive any requests or requirements if such waiver is in the best interest of the City/NOAB; and
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 24 of 29 • Request interviews/presentations with any, some or all proposers to clarify any questions or considerations based on the information included in proposals, and
The City/NOAB will apply the following Evaluation Criteria and weights to evaluate the Proposals received. The Evaluation Criteria will assist the Evaluation Committee in determining which Proposal(s) are the most responsive to the needs of the Airport’s customers.
35% Proposed Concepts – Proposal will be evaluated on the program/concepts that are being proposed for the North Terminal. Product offerings and price points will be considered to meet the needs of airport users.
20% Design and Quality of Improvements - Proposal will be judged on its aesthetic and functional compatibility with the North Terminal design as described within RFP, level of proposer’s investment committed, quality of amenities and the ability of the proposer to demonstrate the capability of meeting the deadline of opening with the North Terminal. Provide detailed information clearly identifying how brand standards meet the required tenant design criteria, in concert with the airport’s esthetic, and still creates a strong sense of place. Proposals should also identify what innovations or features will be included in each location.
20% Qualifications & Experience; Management and Operations Plan – Proposal will be evaluated on its demonstration of successful previous projects as a team and individuals, as well as its financial capability to undertake this contract. Provide management structure that demonstrates ability to quickly meet the needs of the passenger and Airport.
10% ACDBE Participation - Proposal will be evaluated on its demonstrated commitment to promote full and equal business opportunities in accordance with the NOAB’s ACDBE Program.
15% Payment Proposal/Financial – Proposal will be evaluated on the proposed percent of gross receipts payable to NOAB as applied to the pro forma of gross receipts and net income.
SECTION VII– GENERAL TERMS AND CONDITIONS
A. Ownership of Proposals
The provisions of the Louisiana Public Records Act (La. R.S. 44:1 et seq.) govern this solicitation. All Proposals, proceedings, records, contracts, and other public documents relating to this solicitation shall be open to public inspection. Proposers are reminded that while trade secrets and other proprietary information submitted in conjunction with this solicitation may not be subject to public disclosure, protections should be claimed by the Proposer at the time of the submission. All submissions and all documentation submitted therewith are City/NOAB property for all purposes. Proposers must clearly mark documents or information claimed to be exempt from public records disclosure and
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 25 of 29 specifically justify the exemption. Information deemed proprietary and/or confidential that is included in the Proposal should be printed on pink paper. The City/NOAB will not credit any blanket exemption claims lacking specific justification. The City/NOAB does not guarantee the confidentiality of submissions, and final determinations as to which information, if any, is exempt from disclosure rests with City/NOAB.
B. Costs of Preparation
All costs associated with preparing and delivering a Proposal in response to this RFP and costs associated with presentations that are part of this RFP will be borne entirely by the Proposer. NOAB will not compensate Proposers for any expenses incurred as a result of this RFP process.
C. Causes for Disqualification
Although not intended to be an exhaustive list of causes for disqualification, any one or more of the following, among others, may be considered sufficient for the disqualification of a Proposer and the rejection of the Proposal:
1. Evidence of collusion among Proposers.
2. Incomplete submittal of “Proposal Contents” as outlined herein.
3. Lack of business skills or financial resources necessary to operate a NGS Package successfully, as revealed by either financial statements or experience statement.
4. Proposer is in arrears or in default to City on any debt or agreement or is a defaulter, as surety or otherwise, upon any obligation to City, or has failed to faithfully perform any previous agreement with City, in City’s sole determination.
5. Evidence of prohibited lobbying efforts towards members of the Evaluation Committee, any members of City or Airport staff, City Officials, Board Members, Elected Officials or their advisors or consultants, including but not limited to the Crescent City Aviation Team (a joint venture of Leo A Daly and Atkins) and Parsons Brinkerhoff.
6. Proposer does not meet the Minimum Qualifications.
7. Submission of more than one Proposal by any individual, firm, partnership or corporation under the same or different names.
8. Other causes as City/NOAB deems appropriate in its sole and absolute discretion.
D. Effect
This RFP and any related discussions or evaluations by anyone create no rights or obligations whatsoever. The City/NOAB may cancel or modify this RFP at any time at will, with or without notice. Anything to the contrary notwithstanding, the Agreement executed by the City/NOAB and the selected Proposer, if any, is the exclusive statement
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 26 of 29 of rights and obligations resulting from this solicitation.
E. Conflicting Provisions
In the event of any conflict between this Request for Proposals and Agreement hereto, the provisions of the Request for Proposals shall prevail unless otherwise instructed.
F. Cancellation and Rejection of Proposals
The City/NOAB reserves the right to cancel this RFP, accept or reject any/all Proposals, waive requests or requirements as deemed in the best interest of City/NOAB, and re- advertise for any reason deemed in the best interest of the City/NOAB.
Proposals that (i) contain incomplete required contents, (ii) do not follow the required format, or (iii) fail to include required contents, may be rejected without further evaluation.
G. Proposers Risks and Liabilities
Proposers assume all risk and liability associated with a delay or nonoccurrence of any of the events identified in the above RFP Schedule. Proposers are encouraged to mitigate the risk of damages associated with delays in the construction of the North Terminal and its related facilities and/or the hotel concession. The City/NOAB is not responsible for any direct and/or indirect and/or consequential damages resulting from the delay, occurrence or non-occurrence of any event identified in the RFP Schedule. Proposers should take such steps as it deems appropriate to cover any loss or impacts due to schedule or delay.
H. Disputes
By submitting a Proposal to this RFP, Proposer agrees that the law of the State of Louisiana and City of New Orleans shall govern this RFP or subsequent Agreement.
1. Any disputes arising from or relating to this RFP or subsequent Agreement must be resolved according to the law of the State of Louisiana and City of New Orleans; and
2. The exclusive venue for any lawsuits or disputes arising from or relating to this RFP or subsequent Agreement shall be in the Civil District Court for the Parish of Orleans.
I. Public Trust
Each Proposer, joint venture partner, subcontractor, and any other tier subcontractor, and their officers, directors and employees, hereinafter referred to as the “Interested Contract Persons,” acknowledge that the NOAB and the City of New Orleans are government entities serving the public and charged with public trust. As such, the payments under any Agreement will be public funds, and certain types of actions including without limitation criminal activities and offenses involving moral turpitude by Interested
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 27 of 29 Contract Persons may violate the public’s trust. Accordingly, the City/NOAB reserves the right, to exercise in its sole discretion, to pursue termination of any Agreement or subcontract, seeking damages, and any other remedies available at law, in the event of a conviction of any one or more of the Interested Contract Persons or the rendition of a civil judgment against any one or more of the Interested Contract Persons, for any crime or offense involving moral turpitude.
J. Title VI Solicitation Notice
The City/NOAB, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all Proposers that it will affirmatively ensure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award.
K. Fair Labor Standards Act
All contracts and subcontracts that result from this solicitation incorporate by reference the provisions of 29 CFR Part 201, the Federal Fair Labor Standards Act (FLSA), with the same force and effect as if given in full text. The FLSA sets minimum wage, overtime pay, recordkeeping, and child labor standards for full and part time workers.
The Proposer has full responsibility to monitor compliance to the referenced statute or regulation. The Proposer must address any claims or disputes that arise from this requirement directly with the U.S. Department of Labor – Wage and Hour Division.
L. Occupational Safety and Health Act of 1970
All contracts and subcontracts that result from this solicitation incorporate by reference the requirements of 29 CFR Part 1910 with the same force and effect as if given in full text. Successful Proposer must provide a work environment that is free from recognized hazards that may cause death or serious physical harm to the employee. Successful Proposer retains full responsibility to monitor its compliance and their subcontractor’s compliance with the applicable requirements of the Occupational Safety and Health Act of 1970 (20 CFR Part 1910). Successful Proposer must address any claims or disputes that pertain to a referenced requirement directly with the U.S. Department of Labor – Occupational Safety and Health Administration.
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New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 28 of 29 ATTACHMENTS
Attachment A Concept Descriptions and General Operating Standards Attachment B News, Gift and Specialty Retail Package Premises Attachment C Design Criteria Manual Attachment D Schedule of Contract Participation and ACDBE Commitment Forms Attachment E Draft Lease Agreement (Non-Negotiable) Attachment F Existing News, Gift and Specialty Retail Revenue Attachment G Enplanement Data by Airline Attachment H Enplanement Forecast Attachment I Office of Inspector General Attachment J Payment Proposal Form Attachment K Facility Build-Out Investment Proposal Form Attachment L Non-Collusion Affidavit Attachment M Bidder Attestation Attachment N Sample Agreement & Proposal Affidavit Attachment O Proposal Checklist Attachment P Technical Overview (www.cityblueprint.com) Attachment Q Work Force Development
FAILURE TO COMPLETE THE REQUIRED ATTACHMENTS MAY RESULT IN DISQUALIFICATION. GOOD FAITH EFFORTS HAVE BEEN MADE TO DESCRIBE ALL INFORMATION CONTAINED WITHIN THIS RFP. THE CITY/NOAB IS NOT LIABLE FOR ANY CHANGES OR MISINTERPRETATIONS. PROPOSERS ARE RESPONSIBLE FOR VERIFYING ALL INFORMATION WITHIN THIS RFP, INCLUDING THE TECHNICAL INFORMATION.
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New Orleans Aviation Board RFP For News, Gift and Specialty Retail Package City of New Orleans Lease Solicitation #8910-02071 Page 29 of 29
Attachment “A” Concept Descriptions and General Operating Standards
1. CONCEPT NARRATIVES
This section of the RFP outlines NOAB’s vision of the news, gift and specialty retail concepts offered in this RFP. Each NGS Package is expected to have a diverse offering of news, gift and specialty retail concepts. The City strongly prefers to have concepts that are nationally or locally recognized, having off airport locations in the New Orleans metro area. Concepts that are not nationally or locally recognized and do not have an off airport location, but offer merchandise that has national and local brand recognition will be accepted. Concepts that are not nationally or locally recognized, do not have an off airport location, and do not offer merchandise that has national and local brand recognition will not be accepted. NGS Package 1 consists of 9,410 square feet which includes dedicated space for a Duty Free/ Duty Paid and pre-Security Convenience concepts. NGS Package 2 consists of 9,326 square feet which includes space dedicated to a pre-security (baggage claim level) Liquor Store/Market Place.
The definitions for branded and airport/proprietary concepts have been established in the 2015 ACI-NA Concessions Benchmarking Survey and are stated as follows:
• National/International Brand – A brand that is marketed and distributed nationally/internationally. • Local/Regional Brand – A brand that is developed, distributed, and promoted within a defined geographical area. • Airport Brand/Non Brand – A generic brand relative only to the airport.
A. News and Gift /Convenience
News and Gift /Convenience (Convenience) locations should be tailored to quickly meet the needs of passengers and airport employees. The convenience locations are expected to carry a wide variety of merchandise to include but not limited to canned or bottled beverages, pre-packaged snacks, travel supplies, electronics, health and beauty aids, small souvenirs and souvenir apparel. Convenience locations are allowed to sell fresh brewed coffee, but must focus on the convenience offerings. Specialty coffees and espresso are not allowed. Convenience locations are also not allowed to offer prepared meals including but not limited to sandwiches, salads, sushi, hot dogs, and pizza.
Concepts at other airports that represent the City’s narrative include but are not limited to; 7Eleven, Hudson Stores, Tampa Bay Times, and Where Traveler.
B. Specialty Retail
The City desires rich and diverse offering of specialty retail (specialty) concepts. Desired varieties of specialty retail include but are not limited to nationally recognized cosmetics, electronics, nationally and locally recognized arts, books, candy/ chocolatiers, souvenirs, sunglasses, jewelry, and Women’s and Men’s Clothing. Specialty locations should not
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
offer merchandise found in convenience locations. Specialty kiosk locations should have limited offerings, focusing on top selling items, so not to add visual clutter.
Concepts representative of those desired by the City include but are not limited too; Adian Gil, Aveda, Best Buy Express, Brookstone, Brooks Brothers, Coach, Dylan’s Candies, Fleurty Girl, Fossil, InMotion, Lids, Lush, Massey’s Outfitters, Michael Kors, Migon Faget, Sephora, Southern Candymakers, Story Ville, Sucre, Sunglass Hut, Perlis, Vera Bradley, and Victoria Secret.
C. Liquor Store/ Market Place
Located in the baggage claim, the Liquor Store/Market Place (Market Place) is intended to meet the needs of arriving passengers, airport employees, and meet and greet guests. No less than 30% of the space shall be allocated to the sales of nationally and locally recognized packaged alcohol for consumption offsite and ancillary party supplies. Such party supplies include but are not limited to cups, ice chest, mixers, and ping pong balls. The portion of space containing the liquor store must be visually distinct from the market place.
It is desired that the market place be made up of no more than 30% of the space allocated to incorporate food offerings. It is preferred that food offerings are sourced from locally recognizable brands or a nationally recognized food and beverage concept. Sales of fresh, pre-made meals including but not limited to sandwiches, salads, sushi, pastries, and fruits are allowed, but products that require the use of vents won’t be allowed. Coffee and espresso beverages may be offered. Alcohol for consumption on site is not allowed from the market place. The remaining space allocated for the market place should be allocated to convenience merchandise such as apparel, flowers, electronic accessories, and health and beauty supplies, and other frequently forgotten items.
D. Duty Free/Duty Paid
The duty free/ duty paid location is desired to maintain a merchandise offering that includes but is not limited to packaged alcohol, tobacco products, high end perfumes, name brand internationally recognized cosmetics, designer handbags, and designer jewelry. The sale of alcohol for consumption onsite is not allowed.
2. GENERAL OPERATING STANDARDS
A. For each national name brand and local/regional concept proposed, the quality of the offerings should be the same or of a higher standard than the offerings at the concept’s street location.
B. For each local/regional concept proposed, whether through a sublease, joint venture or license agreement, the Proposer must show the local/regional operator’s level of involvement in the concept and the standards established to ensure the concept will be operated at MSY in the same manner as the street location.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
C. If appropriate to the concept, lounges should have state-of-the-art projection and/or flat screen televisions featuring sports, special events and news programs all day.
D. Concessionaires are encouraged to use the latest technology to increase their ability to serve customers, in particular on the concourses where space is limited.
E. Each concession space is expected to be developed for revenue producing purposes.
F. Each Concessionaire will be responsible for providing all capital investments for each concept, including equipment, fixtures and furniture within each unit.
G. Concessionaires must offer the same promotions and discounts, and sell and accept gift cards and frequent buyer cards, offered in the concept’s street location.
H. Concessionaires must keep up with retail trends and change menus to reflect customer needs and preferences. All changes to menu items and prices must have the prior written approval of the Director.
I. Support space is limited. Concessionaires should use off-site commissaries and coordinate deliveries with NOAB on an on-going basis.
3. SUMMARY OF BUSINESS TERMS
A. Minimum Annual Guarantee (MAG). Prior to the Date of Beneficial Occupancy (“DBO”), there will be no rents or fees due to the Board. If Concessionaire is unable to open any unit by the DBO, a Delayed DBO Fee shall be due to Board in the amount of one and a half times (1.5x) the projected rent for said unit(s), prorated over that given period of time. Upon the DBO, the Concessionaire will be required to pay the Board Concession Rent in accordance with the Agreement.
1. The anticipated DBO is October 1, 2018; the City and its construction manager at risk are not responsible for any direct or indirect damages that the Concessionaire may experience as a result of a delay in the DBO, including but not limited to increased overhead expenses, lost profits, or other damages associated with a delayed DBO. The City strongly encourages Concessionaires to procure the appropriate insurances to mitigate such risk.
Minimum Annual Guarantee (MAG) shall be for the 1st year shall be per the successful Proposal payable at a rate of 1/12 of the MAG on the 1st of the each month. All subsequent year’s MAG will be based on 80% of the prior year rent.
A. Concession Rent. Concessionaire shall pay rent as a percentage of gross sales in accordance with the rates set in this RFP.
B. Payment of Concession Rent. Concession Rent shall be paid by Concessionaire to the Board, on or before the twentieth (20th) day of the second month of the Term and continuing monthly thereafter during the remainder of the Term, the amount, earned
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
during the preceding month in excess of the MAG paid in the preceding month.
D. Deficiency Penalty-Pricing Policy. Concessionaire is subject to Deficiency Penalty for any product sold at prices that exceed the Pricing Policy. The Deficiency Penalty for failure to comply with the Pricing Policy shall be $100 per item per day.
E. Point of Sale (“POS”) and Reporting. Concessionaires shall install electronic POS to accurately record all transactions occurring in each location for accounting, report and auditing purposes. All POS terminals must have, at a minimum, the following features;
1. Multiple segregated category addresses to allow for accurate and complete reporting of Gross Receipts by various merchandise and services categories;
2. The capability of recording transactions by sequential control number to an audit tape or computer file;
3. The capability of recording any discounts that are applied to a transaction;
4. The capability of printing a transaction history to tape or computer file by product category, time of day, day, month, and year by product category;
5. The capability of printing customer receipts showing the transaction amount, the amount tendered, the amount of change due to the customer, and the time and date of the transaction. Additionally, the customer receipt must show Concessionaire’s contact information including name and phone number;
6. A fee display of sufficient size and legibility that is placed in a location visible to the customer during a transaction;
7. A secure transaction audit tape or ASCII transaction file on a removable storage device; and
8. The capability to report electronically directly to the NOAB daily transaction reports.
F. Employee Parking. Concessionaire may obtain employee parking permit/tag/space through the NOAB’s parking provider or through Concessionaire’s own means. The NOAB will not be responsible for providing Concessionaires with employee parking.
G. Secured Area Screenings. The NOAB will not provide security screening at entrance points throughout the terminal to facilitate Concessionaire deliveries.
H. Additional Premises. Limited storage and office space is available in the North Terminal for Concessionaires. If available, Concessionaires would be charged an Additional Premises Rent at the current fair market value (“FMV”) for any additional space that may be available. Additional premises may also be secured in the South Terminal through as part of the North Terminal lease.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “B-1”
NEWS, GIFT AND SPECIALTY RETAIL PACKAGE – PREMISES
See specifications and details of each location in the Tenant Design Criteria Manual – Attachment “C”.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “B-2”
NEWS, GIFT AND SPECIALTY RETAIL PACKAGE – PREMISES
Louis Armstrong New Orleans International Airport
North Terminal - News, Gifts and Specialty Retail Program Packages and Venues
N&G Package 1 (green shaded spaces on diagram in RFP)
Location ID# Square Venue Feet Head House East 2410 2,397 DCC-2-3 News, Gift, Specialty Concourse West 2602 909 DCC-6-3 Duty Free option Concourse West 2601B 250 DCC-3-3 Specialty Kiosk Concourse West 2602B 250 DCC-3-3 Specialty Kiosk Concourse East 2710 1,608 DCC-4-3 Convenience Store/Coffee Concourse West 2606 3,164 DCC-5-3 Convenience Store & Specialty Ticketing 3017 832 DCC-1-8 Convenience Store/Coffee 9,410 N&G Package 2 (blue shaded spaces on diagram in RFP)
Location ID# Square CDCM Venue Feet Page Head House West 2310 2,404 DCC-2-3 News, Gift, Specialty Concourse East 2710B 250 DCC-3-3 Specialty Kiosk Concourse East 2702B 250 DCC-3-3 Specialty Kiosk Concourse West 2612 1,608 DCC-4-3 Convenience Store/Coffee Concourse East 2707 3,164 DCC-5-3 Convenience Store & Specialty Baggage 1029 1650 DCC-1-5 Grab&Go, Liquor Store, Convenience 9,326 Total N&G 18,736
Food & Beverage will not be allowed to be sold in the Head House retail units. On the concourses, the amount of space allocated to the sale of Food & Beverage in a News & Gift unit will be limited to 10% of the space.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “C”
DESIGN CRITERIA MANUAL
The Tenant Design Criteria Manual can be downloaded at
https://www.hightail.com/download/cUJXb3BGT010TWxOeDhUQw
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “D-1”
SCHEDULE OF CONTRACT PARTICIPATION AND ACDBE COMMITMENT
PRIME(S) & SUB-CONTRACTOR/CONSULTANT/VENDOR(S)
North Terminal Concessions News, Gift and Specialty Retail (Revenue/Direct Participation)
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
SCHEDULE OF CONTRACT PARTICIPATION AND ACDBE COMMITMENT PRIME(S) & SUB-CONTRACTOR/CONSULTANT/VENDOR(S) NORTH TERMINAL CONCESSIONS: NEWS & GIFTS (REVENUE / DIRECT PARTICIPATION) INSTRUCTIONS
Fill out fields NOAB Project Title, NOAB Project No., Project Type and Project ACDBE Goal.
Complete a table row for each firm that will participate in the contract, including the prime. Additional pages are provided should the number of firms exceed the number of rows provided on Page 1.
Column A. Indicate the firm’s role: Prime, Sub-Tier 2 (first-level sub), Sub-Tier 3 (sub of a sub), Manufacturer, Regular Dealer/Supplier, or Broker/Agent.
Column B. Provide the name and address of the firm.
Column C. Provide the principal contact person and phone number of the firm.
Column D. Describe the work, goods, and/or services to be provided by the firm.
Column E. Left blank, intentionally.
Column F. Indicate the value of work assigned to the firm as a percent of the total bid amount. This percent should equal the amount indicated in Column E divided by the total bid amount. On the row Total Value of Participation, enter the total percent value of work – should equal 100% to account for all work being performed on the contract.
Column G. Indicate whether firm is an ACDBE or non-DBE. ACDBE-certified means federally certified by a member of the Louisiana Unified Certification Program (www.LAUCP.org) with an Airport Concessionaire designation. On the row Total Value of Participation, enter the total ACDBE participation counted towards ACDBE goal as a percentage of Total Bid Amount. Firms must be ACDBE-certified at the time of bid submission in order to count their participation towards the goal. Please note that, per 49 CFR §23.55, 100% of the value of ACDBE Regular Dealer/Supplier services and Broker/Agent commissions and fees can be counted toward ACDBE goal.
Good Faith Efforts to Secure ACDBE Participation If "Total ACDBE Participation" is less than the identified ACDBE Goal, attach Documentation of Good Faith Efforts Form (www.flymsy.com -> Business Opportunities -> DBE & SLDBE Programs -> Commercially Useful Function and Good Faith Efforts Guidelines), and any supporting documents, to establish that good faith efforts were undertaken to secure ACDBE participation. The following is a list of types of actions NOAB would consider as part of the bidder's good faith efforts. It is not intended to be a mandatory checklist nor is it intended to be exclusive or exhaustive. Other types of effort may be relevant in appropriate cases.
1. Soliciting through all reasonable and available means (e.g. attendance at pre-bid meetings, advertising and/or written notices) the interest of all certified ACDBE s who have the capability to perform the work of the contract. The bidder must solicit this interest within sufficient time to allow the ACDBE s to respond to the solicitation. The bidder must determine with certainty if the ACDBE s are interested by taking appropriate steps to follow up initial solicitations. 2. Selecting portions of the work to be performed by ACDBE s in order to increase the likelihood that the ACDBE goal will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate ACDBE participation, even when the prime contractor might otherwise prefer to perform these work items with its own forces. 3. Providing interested ACDBE s with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation. 4. (A) Negotiating in good faith with interested ACDBE s. It is the bidder's responsibility to make a portion of the work available to ACDBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available ACDBE subcontractors and suppliers, so as to facilitate ACDBE participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of ACDBE s that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for ACDBE s to perform the work. (B) A bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including ACDBE subcontractors, and would take a firm's price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using ACDBE s is not in itself sufficient reason for a bidder's failure to meet the contract ACDBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts. Prime contractors are not, however, required to accept higher quotes from ACDBE s if the price difference is excessive or unreasonable. 5. Not rejecting ACDBE s as being unqualified without sound reasons based on a thorough investigation of their capabilities. The contractor's standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for the rejection or non-solicitation of bids in the contractor's efforts to meet the project goal. 6. Making efforts to assist interested ACDBE s in obtaining bonding, lines of credit, or insurance as required by the recipient or contractor. 7. Making efforts to assist interested ACDBE s in obtaining necessary equipment, supplies, materials, or related assistance or services. 8. Effectively using the services of available minority/women community organizations; minority/women contractors' groups; local, state, and Federal minority/women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of ACDBE s.
NORTH TERMINAL CONCESSIONS: NEWS & GIFTS (REVENUE / DIRECT PARTICIPATION) Revision 20160810. Previous versions obsolete. SCHEDULE OF CONTRACT PARTICIPATION AND ACDBE COMMITMENT PRIME(S) & SUB-CONTRACTOR/CONSULTANT/VENDOR(S) (RESPONDENT / BIDDER MUST COMPLETE AND SUBMIT WITH PROPOSAL.)
NOAB Project Title: North Terminal Concessions: News & Gifts (Revenue / Direct Particpation) NOAB Project No.:
Project Type: ACDBE Project ACDBE Goal: 35.86 %
Name of Bidder / Prime Contractor:
A B C D E F G FIRM ROLE PRINCIPAL AGREEMENT TYPE $ VALUE OF % VALUE CONTACT NAME Joint Venture Partner, Owner PARTICIPATION ACDBE or *Prime, Sub-Tier 2, FIRM NAME AND ADDRESS OF PARTICI- AND PHONE Operator, Licensing, Sublease, (Enter N/A for Statement non-DBE Manufacturer, Other (describe) of Qualifications) PATION Supplier, etc. NUMBER 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A %
TOTAL VALUE OF PARTICIPATION FROM CONTINUATION PAGES: $ N/A % % Total Must Equal Total ACDBE 0.00 * ACDBE Regular Dealer/Supplier work/purchases is counted at 60% participation toward goal. Enter Total Bid Amount 100% Participation
TOTAL VALUE OF PARTICIPATION: $ N/A % % If Total ACDBE Participation is less than the goal, refer to the Good Faith Efforts section of the Instructions and attach necessary documentation. Firms must be ACDBE-certified to count participation towards the goal.
The undersigned Prime firm will enter into a formal written agreement with the Subcontractors / Consultants / Vendors identified herein for work and/or goods and services as shown in this schedule, conditioned upon the execution of a contract with the NOAB. The undersigned agrees to be contractually bound to maintain the level of ACDBE participation set forth above. Failure to comply with this agreement constitutes breach of contract.
Signature Title
SWORN AND SUBSCRIBED, before me, this day of ,
NOTARY PUBLIC
(Seal)
My commission expires
NORTH TERMINAL CONCESSIONS: NEWS & GIFTS (REVENUE / DIRECT PARTICIPATION) Revision 20160810. Previous versions obsolete. SCHEDULE OF CONTRACT PARTICIPATION AND ACDBE COMMITMENT PRIME(S) & SUB-CONTRACTOR/CONSULTANT/VENDOR(S) (RESPONDENT / BIDDER MUST COMPLETE AND SUBMIT WITH PROPOSAL.)
Name of Bidder / Prime Contractor:
A B C D E F G FIRM ROLE PRINCIPAL WORK TO BE $ VALUE OF % VALUE CONTACT NAME SUBCONTRACTED / PARTICIPATION ACDBE or *Prime, Sub-Tier 2, FIRM NAME AND ADDRESS OF PARTICI- AND PHONE GOODS / SERVICES (Enter N/A for Statement non-DBE Manufacturer, of Qualifications) PATION Supplier, etc. NUMBER TO BE PURCHASED 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A %
Total $ Value of Work Total % Value of Total ACDBE 0.00 * ACDBE Regular Dealer/Supplier work/purchases is counted at 60% participation toward goal. Purchases Work Purchases Participation
TOTAL VALUE OF PARTICIPATION FOR CONTINUATION PAGE 1: $ N/A % %
NORTH TERMINAL CONCESSIONS: NEWS & GIFTS (REVENUE / DIRECT PARTICIPATION) Revision 20160810. Previous versions obsolete. SCHEDULE OF CONTRACT PARTICIPATION AND ACDBE COMMITMENT PRIME(S) & SUB-CONTRACTOR/CONSULTANT/VENDOR(S) (RESPONDENT / BIDDER MUST COMPLETE AND SUBMIT WITH PROPOSAL.)
Name of Bidder / Prime Contractor:
A B C D E F G FIRM ROLE PRINCIPAL WORK TO BE $ VALUE OF % VALUE CONTACT NAME SUBCONTRACTED / PARTICIPATION ACDBE or *Prime, Sub-Tier 2, FIRM NAME AND ADDRESS OF PARTICI- AND PHONE GOODS / SERVICES (Enter N/A for Statement non-DBE Manufacturer, of Qualifications) PATION Supplier, etc. NUMBER TO BE PURCHASED 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A %
Total $ Value of Work Total % Value of Total ACDBE 0.00 * ACDBE Regular Dealer/Supplier work/purchases is counted at 60% participation toward goal. Purchases Work Purchases Participation
TOTAL VALUE OF PARTICIPATION FOR CONTINUATION PAGE 2: $ N/A % %
NORTH TERMINAL CONCESSIONS: NEWS & GIFTS (REVENUE / DIRECT PARTICIPATION) Revision 20160810. Previous versions obsolete. SCHEDULE OF CONTRACT PARTICIPATION AND ACDBE COMMITMENT PRIME(S) & SUB-CONTRACTOR/CONSULTANT/VENDOR(S) (RESPONDENT / BIDDER MUST COMPLETE AND SUBMIT WITH PROPOSAL.)
Name of Bidder / Prime Contractor:
A B C D E F G FIRM ROLE PRINCIPAL WORK TO BE $ VALUE OF % VALUE CONTACT NAME SUBCONTRACTED / PARTICIPATION ACDBE or *Prime, Sub-Tier 2, FIRM NAME AND ADDRESS OF PARTICI- AND PHONE GOODS / SERVICES (Enter N/A for Statement non-DBE Manufacturer, of Qualifications) PATION Supplier, etc. NUMBER TO BE PURCHASED 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A %
Total $ Value of Work Total % Value of Total ACDBE 4.00 * ACDBE Regular Dealer/Supplier work/purchases is counted at 60% participation toward goal. Purchases Work Purchases Participation
TOTAL VALUE OF PARTICIPATION FOR CONTINUATION PAGE 3: $ N/A % %
NORTH TERMINAL CONCESSIONS: NEWS & GIFTS (REVENUE / DIRECT PARTICIPATION) Revision 20160810. Previous versions obsolete. SCHEDULE OF CONTRACT PARTICIPATION AND ACDBE COMMITMENT PRIME(S) & SUB-CONTRACTOR/CONSULTANT/VENDOR(S) (RESPONDENT / BIDDER MUST COMPLETE AND SUBMIT WITH PROPOSAL.)
Name of Bidder / Prime Contractor:
A B C D E F G FIRM ROLE PRINCIPAL WORK TO BE $ VALUE OF % VALUE CONTACT NAME SUBCONTRACTED / PARTICIPATION ACDBE or *Prime, Sub-Tier 2, FIRM NAME AND ADDRESS OF PARTICI- AND PHONE GOODS / SERVICES (Enter N/A for Statement non-DBE Manufacturer, of Qualifications) PATION Supplier, etc. NUMBER TO BE PURCHASED 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A % 1 $ N/A %
Total $ Value of Work Total % Value of Total ACDBE 2.00 * ACDBE Regular Dealer/Supplier work/purchases is counted at 60% participation toward goal. Purchases Work Purchases Participation
TOTAL VALUE OF PARTICIPATION FOR CONTINUATION PAGE 4: $ N/A % %
NORTH TERMINAL CONCESSIONS: NEWS & GIFTS (REVENUE / DIRECT PARTICIPATION) Revision 20160810. Previous versions obsolete.
ATTACHMENT “D-2”
SCHEDULE OF CONTRACT PARTICIPATION AND ACDBE COMMITMENT
PRIME(S) & SUB-CONTRACTOR/CONSULTANT/VENDOR(S)
North Terminal Concessions Goods & Services (Procurement)
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
SCHEDULE OF CONTRACT PARTICIPATION AND ACDBE COMMITMENT PRIME(S) & SUB-CONTRACTOR/CONSULTANT/VENDOR(S) NORTH TERMINAL CONCESSIONS: GOODS & SERVICES (PROCUREMENT) INSTRUCTIONS
Fill out fields NOAB Project Title, NOAB Project No., Project Type and Project ACDBE Goal.
Complete a table row for each firm that will participate in the contract, including the prime. Additional pages are provided should the number of firms exceed the number of rows provided on Page 1.
Column A. Indicate the firm’s role: Prime, Sub-Tier 2 (first-level sub), Sub-Tier 3 (sub of a sub), Manufacturer, Regular Dealer/Supplier, or Broker/Agent.
Column B. Provide the name and address of the firm.
Column C. Provide the principal contact person and phone number of the firm.
Column D. Describe the work, goods, and/or services to be provided by the firm.
Column E. Indicate the dollar amount of work assigned to the firm. On the row Total Value of Participation, enter the Total Bid Amount which equals the sum of the Base Bid and any Alternatives.
Column F. Indicate the value of work assigned to the firm as a percent of the total bid amount. This percent should equal the amount indicated in Column E divided by the total bid amount. On the row Total Value of Participation, enter the total percent value of work – should equal 100% to account for all work being performed on the contract.
Column G. Indicate whether firm is a DBE, ACDBE or non-DBE, with priority relevant to the type of goal. DBE-certified means federally certified by a member of the Louisiana Unified Certification Program (www.LAUCP.org) - an ACDBE designation recognizes the firm as an Airport Concessionaire. On the row Total Value of Participation, enter the (AC)DBE participation counted towards ACDBE goal as a percentage of Total Bid Amount. Firms must be (AC)DBE-certified at the time of bid submission in order to count their participation towards that specific goal. Please note that, per 49 CFR §23.55, 100% of the value of ACDBE Regular Dealer/Supplier services and Broker/Agent commissions and fees can be counted toward ACDBE goal.
Good Faith Efforts to Secure ACDBE Participation If "Total ACDBE Participation" is less than the identified ACDBE Goal, attach Documentation of Good Faith Efforts Form (www.flymsy.com -> Business Opportunities -> DBE & SLDBE Programs -> Commercially Useful Function and Good Faith Efforts Guidelines), and any supporting documents, to establish that good faith efforts were undertaken to secure ACDBE participation. The following is a list of types of actions NOAB would consider as part of the bidder's good faith efforts. It is not intended to be a mandatory checklist nor is it intended to be exclusive or exhaustive. Other types of effort may be relevant in appropriate cases.
1. Soliciting through all reasonable and available means (e.g. attendance at pre-bid meetings, advertising and/or written notices) the interest of all certified ACDBE s who have the capability to perform the work of the contract. The bidder must solicit this interest within sufficient time to allow the ACDBE s to respond to the solicitation. The bidder must determine with certainty if the ACDBE s are interested by taking appropriate steps to follow up initial solicitations. 2. Selecting portions of the work to be performed by ACDBE s in order to increase the likelihood that the ACDBE goal will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate ACDBE participation, even when the prime contractor might otherwise prefer to perform these work items with its own forces. 3. Providing interested ACDBE s with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation. 4. (A) Negotiating in good faith with interested ACDBE s. It is the bidder's responsibility to make a portion of the work available to ACDBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available ACDBE subcontractors and suppliers, so as to facilitate ACDBE participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of ACDBE s that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for ACDBE s to perform the work. (B) A bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including ACDBE subcontractors, and would take a firm's price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using ACDBE s is not in itself sufficient reason for a bidder's failure to meet the contract ACDBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts. Prime contractors are not, however, required to accept higher quotes from ACDBE s if the price difference is excessive or unreasonable. 5. Not rejecting ACDBE s as being unqualified without sound reasons based on a thorough investigation of their capabilities. The contractor's standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for the rejection or non-solicitation of bids in the contractor's efforts to meet the project goal. 6. Making efforts to assist interested ACDBE s in obtaining bonding, lines of credit, or insurance as required by the recipient or contractor. 7. Making efforts to assist interested ACDBE s in obtaining necessary equipment, supplies, materials, or related assistance or services. 8. Effectively using the services of available minority/women community organizations; minority/women contractors' groups; local, state, and Federal minority/women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of ACDBE s.
NORTH TERMINAL CONCESSIONS: GOODS & SERVICES (PROCUREMENT) Revision 20160810. Previous versions obsolete. SCHEDULE OF CONTRACT PARTICIPATION AND ACDBE COMMITMENT PRIME(S) & SUB-CONTRACTOR/CONSULTANT/VENDOR(S) (RESPONDENT / BIDDER MUST COMPLETE AND SUBMIT WITH PROPOSAL.)
NOAB Project Title: North Terminal Concessions: Goods & Services (Procurement) NOAB Project No.:
Project Type (ACDBE, only.): ACDBE Project ACDBE Goal: 20.09 %
A B C D E F G FIRM ROLE PRINCIPAL WORK TO BE $ VALUE OF % VALUE CONTACT NAME SUBCONTRACTED / ACDBE, DBE FIRM NAME AND ADDRESS WORK / OF WORK / *Prime, Sub-Tier 2, AND PHONE GOODS / SERVICES or non-DBE Manufacturer, PURCHASES PURCHASES Supplier, etc. NUMBER TO BE PURCHASED 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ %
TOTAL VALUE OF PARTICIPATION FROM CONTINUATION PAGES: $ % % Total Must Equal Total (AC)DE 0.00 *Regular Dealer/Supplier work/purchases is counted at 60% participation toward ACDBE goal. Enter Total Bid Amount 100% Participation
TOTAL VALUE OF PARTICIPATION: $ % % If Total (AC)DE Participation is less than the goal, refer to the Good Faith Efforts section of the Instructions and attach necessary documentation. If contract is (partially) federally funded, (AC)DBE goal and requirements take precedence. Firms must be (AC)DBE -certified to count participation towards the goal.
The undersigned Prime firm will enter into a formal written agreement with the Subcontractors / Consultants / Vendors identified herein for work and/or goods and services as shown in this schedule, conditioned upon the execution of a contract with the NOAB. The undersigned agrees to be contractually bound to maintain the level of (AC)DBE participation set forth above. Failure to comply with this agreement constitutes breach of contract.
Signature Title
SWORN AND SUBSCRIBED, before me, this day of ,
NOTARY PUBLIC
(Seal)
My commission expires
NORTH TERMINAL CONCESSIONS: GOODS & SERVICES (PROCUREMENT) Revision 20160810. Previous versions obsolete. SCHEDULE OF CONTRACT PARTICIPATION AND ACDBE COMMITMENT PRIME(S) & SUB-CONTRACTOR/CONSULTANT/VENDOR(S) (RESPONDENT / BIDDER MUST COMPLETE AND SUBMIT WITH PROPOSAL.)
Name of Bidder / Prime Contractor: Error! Reference source not found.
A B C D E F G FIRM ROLE PRINCIPAL WORK TO BE $ VALUE OF % VALUE CONTACT NAME SUBCONTRACTED / ACDBE, DBE FIRM NAME AND ADDRESS WORK / OF WORK / *Prime, Sub-Tier 2, AND PHONE GOODS / SERVICES or non-DBE Manufacturer, PURCHASES PURCHASES Supplier, etc. NUMBER TO BE PURCHASED 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ %
Total $ Value of Work Total % Value of Total (AC)DE 0.00 *Regular Dealer/Supplier work/purchases is counted at 60% participation toward ACDBE goal. Purchases Work Purchases Participation
TOTAL VALUE OF PARTICIPATION FOR CONTINUATION PAGE 1: $ % %
NORTH TERMINAL CONCESSIONS: GOODS & SERVICES (PROCUREMENT) Revision 20160810. Previous versions obsolete. SCHEDULE OF CONTRACT PARTICIPATION AND ACDBE COMMITMENT PRIME(S) & SUB-CONTRACTOR/CONSULTANT/VENDOR(S) (RESPONDENT / BIDDER MUST COMPLETE AND SUBMIT WITH PROPOSAL.)
Name of Bidder / Prime Contractor: Error! Reference source not found.
A B C D E F G FIRM ROLE PRINCIPAL WORK TO BE $ VALUE OF % VALUE CONTACT NAME SUBCONTRACTED / ACDBE, DBE FIRM NAME AND ADDRESS WORK / OF WORK / *Prime, Sub-Tier 2, AND PHONE GOODS / SERVICES or non-DBE Manufacturer, PURCHASES PURCHASES Supplier, etc. NUMBER TO BE PURCHASED 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ %
Total $ Value of Work Total % Value of Total (AC)DE *Regular Dealer/Supplier work/purchases is counted at 60% participation toward ACDBE goal. Purchases Work Purchases Participation 0.00
TOTAL VALUE OF PARTICIPATION FOR CONTINUATION PAGE 2: $ % %
NORTH TERMINAL CONCESSIONS: GOODS & SERVICES (PROCUREMENT) Revision 20160810. Previous versions obsolete. SCHEDULE OF CONTRACT PARTICIPATION AND ACDBE COMMITMENT PRIME(S) & SUB-CONTRACTOR/CONSULTANT/VENDOR(S) (RESPONDENT / BIDDER MUST COMPLETE AND SUBMIT WITH PROPOSAL.)
Name of Bidder / Prime Contractor: Error! Reference source not found.
A B C D E F G FIRM ROLE PRINCIPAL WORK TO BE $ VALUE OF % VALUE CONTACT NAME SUBCONTRACTED / ACDBE, DBE FIRM NAME AND ADDRESS WORK / OF WORK / *Prime, Sub-Tier 2, AND PHONE GOODS / SERVICES or non-DBE Manufacturer, PURCHASES PURCHASES Supplier, etc. NUMBER TO BE PURCHASED 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ %
Total $ Value of Work Total % Value of Total (AC)DE 8.00 *Regular Dealer/Supplier work/purchases is counted at 60% participation toward ACDBE goal. Purchases Work Purchases Participation
TOTAL VALUE OF PARTICIPATION FOR CONTINUATION PAGE 3: $ % %
NORTH TERMINAL CONCESSIONS: GOODS & SERVICES (PROCUREMENT) Revision 20160810. Previous versions obsolete. SCHEDULE OF CONTRACT PARTICIPATION AND ACDBE COMMITMENT PRIME(S) & SUB-CONTRACTOR/CONSULTANT/VENDOR(S) (RESPONDENT / BIDDER MUST COMPLETE AND SUBMIT WITH PROPOSAL.)
Name of Bidder / Prime Contractor: Error! Reference source not found.
A B C D E F G FIRM ROLE PRINCIPAL WORK TO BE $ VALUE OF % VALUE CONTACT NAME SUBCONTRACTED / ACDBE, DBE FIRM NAME AND ADDRESS WORK / OF WORK / *Prime, Sub-Tier 2, AND PHONE GOODS / SERVICES or non-DBE Manufacturer, PURCHASES PURCHASES Supplier, etc. NUMBER TO BE PURCHASED 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ % 1 $ %
Total $ Value of Work Total % Value of Total (AC)DE 2.00 *Regular Dealer/Supplier work/purchases is counted at 60% participation toward ACDBE goal. Purchases Work Purchases Participation
TOTAL VALUE OF PARTICIPATION FOR CONTINUATION PAGE 4: $ % %
NORTH TERMINAL CONCESSIONS: GOODS & SERVICES (PROCUREMENT) Revision 20160810. Previous versions obsolete.
ATTACHMENT “E”
LEASE AGREEMENT
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
Lease and Concession Agreement
By and Between
THE CITY OF NEW ORLEANS
By and Through
THE NEW ORLEANS AVIATION BOARD
And
ABCDEFG CONCESSIONAIRE COMPANY
DATE:______
INDEX
1. DEFINED TERMS ...... 5 2. TERM...... 7 3. LEASED PREMISES ...... 7 4. CONSTRUCTION AND CAPITAL INVESTMENT ...... 10 5. USE OF LEASE PREMISES ...... 16 6. OPERATIONS AND PERFORMANCE STANDARDS ...... 19 7. RENT ...... 34 8. TAXES, UTILITIES AND OTHER FEES ...... 38 9. SERVICES PROVIDED BY THE BOARD ...... 39 10. OWNERSHIP OF IMPROVEMENTS AND CONSTRUCTIONS; AND AMORTIZATION SCHEDULE; BUY OUT ...... 39 11. AIRPORT CONCESSIONS/DISADVANTAGED BUSINESS ENTERPRISES (DBE) PROGRAM...... 40 12. MAINTENANCE OF LEASED PREMISES ...... 46 13. REFURBISHMENT ...... 50 14. INDEMNIFICATION AND INSURANCE ...... 51 15. TERMINATION AND DEFAULT ...... 54 16. DAMAGE TO LEASED PREMISES ...... 60 17. WARRANTY OR REPRESENTATION OF LEASED PREMISES ...... 62 18. ENVIRONMENTAL ...... 62 19. ASSIGNMENT AND SUBLETTING ...... 64 20. RECORDS, BOOKS AND AUDIT ...... 66 21. TARGETED AND DISADVANTAGED TARGETED WORKER PROGRAM FIRST SOURCE RECRUITMENT OF WORK FORCE ...... 68 22. GENERAL PROVISIONS ...... 71 23. REQUIRED FEDERAL PROVISIONS ...... 78
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EXHIBIT LIST
Exhibit A – Summary of Contract
Exhibit B – Description and Diagram of Leased Premises
Exhibit C – Concession Design Criteria Manual
Exhibit D – Development Schedule
Exhibit E – Amortization Schedule
Exhibit F – ACDBE Participation Plan
Exhibit G – RFP No. 8910-02071
Exhibit H – Concessionaire’s Proposal
Exhibit I –Workforce Development Program documents
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THIS LEASE AND CONCESSION AGREEMENT (the “Agreement”) is made and entered into by and between the City of New Orleans (“City”), represented by Mitchell J. Landrieu, its Mayor, by and through the New Orleans Aviation Board (“Board” or “NOAB”), represented by Cheryl Teamer, its Chairwoman (the City and Board collectively referred to as “Lessor”); and ______(“Concessionaire”), represented by ______, its ______. The Lease is effective ______(the Effective Date”).
WITNESSETH
WHEREAS, the City owns certain immovable property located in Jefferson Parish, Louisiana and more particularly described as the Louis Armstrong New Orleans International Airport and certain immovable property surrounding the Louis Armstrong New Orleans International Airport (the “Airport Property”);
WHEREAS, the Board is charged with the administration and operation of the Louis Armstrong New Orleans International Airport (the “Airport”) and all property owned on connection therewith;
WHEREAS, the New Orleans Aviation Board and the City of New Orleans have commenced the Long Term Airport Development Program which includes the construction of a new North Terminal which will be approximately a 700,000 square feet and thirty (30) gate terminal as well as related facilities and projects;
WHEREAS, in anticipation of the construction and opening of the new North Terminal, the NOAB issued Request for Proposals No. 8910-02071, soliciting proposals from qualified providers capable providing news, gift and specialty retail services at the North Terminal;
WHEREAS, the Concessionaire submitted a written proposal dated, ______. Which is attached hereto as Exhibit H, and the Lessor has selected the Concessionaire to design, construct and operate News, Gift and Specialty Retail Package ----- as described in the RFP;
WHEREAS, Concessionaire desires and is fully qualified to design, construct and operate News, Gift and Specialty Retail Package ----- at the Airport, together with certain privileges, rights, uses, and interests therein as hereinafter set forth; and
WHEREAS, on the ____ day of ______, 2016 the Board approved ______as the successful proposer for this Lease, subject to New Orleans City Council approval.
NOW THEREFORE, in consideration of the mutual covenants, terms and conditions contained in this Lease, and other valuable considerations, Lessor and Concessionaire agree as follows:
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1. DEFINED TERMS
1.1 Agreement means this Lease and Concessions Agreement.
1.2 Agreement Year means a period of twelve (12) consecutive months commencing upon the Rental Commencement Date.
1.3 Airport means the land, with all improvements thereon and to be erected thereon, owned and/or operated by the Board, designated as Louis Armstrong New Orleans International Airport and the locations as may be added from time to time.
1.4 Annual Report means the annual report required to be provided by Concessionaire to the Authorized Representative pursuant to Section 20.4 of this Agreement.
1.5 Authorized Representative means the Director of Aviation during the performance of this Agreement. The Director may, in his sole discretion, delegate certain functions under this Agreement to one or more persons to serve as the Authorized Representative for this Agreement.
1.6 Aviation Board, Board and NOAB mean the New Orleans Aviation Board, an unattached board within the executive branch of the City of New Orleans.
1.7 City means the City of New Orleans and all departments and agencies thereof.
1.8 Concessionaire means ______.
1.9 Concession Design Criteria Manual means those specifications attached to the RFP and attached to this Agreement as Exhibit C.
1.10 Concessions Location means any concessions location operated by Concessionaire at the Airport and pursuant to the terms and conditions of this Agreement.
1.11 CMAR or Construction Manager at Risk means the Hunt Boh Gibbs Metro, Joint Venture, who is charged with the construction of the new North Terminal and adjacent construction for the Airport. The CMAR’s scope of work includes construction of the parking garage and related facilities.
1.12 Date of Beneficial Occupancy means the first day on which Concessionaire’s Improvements are: 1) substantially complete as certified by the engineer of the construction project and 2) are ready to be used for its intended purpose consistent with the opening of the North Terminal, which is currently scheduled to open on October 1, 2018.
1.13 Development Period means the period from the Execution Date to the Date of Beneficial Occupancy; however the Development Period shall not extend past September 30, 2018.
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1.14 Development Schedule means the development scheduled attached hereto as Exhibit D.
1.15 Director of Aviation or Director means the Authorized Representative of the Airport as appointed by the NOAB.
1.16 Execution Date means the date that this Agreement is approved and executed by the City.
1.17 Gross Revenues has the meaning set forth in Section 7.6 of this Agreement.
1.18 Leasehold Improvements means those improvements constructed or implemented by Concessionaire, or on its behalf, on the Leased Premises for the operation of news, gift and specialty retail services.
1.19 Lessor shall collectively refer to the Board and the City.
1.20 Mid-Term Refurbishment means those mid-term refurbishments to be provided by Concessionaire pursuant to Section 13 of this Agreement.
1.21 Minimum Annual Guarantee or MAG means Concessionaire’s annual minimum rental obligation which shall be $______during the first year of the Agreement and for each subsequent Agreement Year shall be equal to eighty percent (80%) of the preceding years total rent paid.
1.22 Minimum Initial Capital Investment means Concessionaire’s minimum capital investment towards the initial design, construction and equipping of the Leased Premises which shall be ______.
1.23 Monthly Report means the monthly report required to be provided by Concessionaire to the Authorized Representative pursuant to Section 20.2 of this Agreement.
1.24 Parsons Brinkerhoff, Inc. or Program Manager means the consultant serving as the program manager on the construction of the Airport’s North Terminal and related infrastructure and facilities, including but not limited to being the Program Manager for the construction of the parking garage and adjacent facilities.
1.25 Renewal Term means the one (1) additional one (1) year term listed in section 2.4 of this Agreement.
1.26 Rental Commencement Date means the date Concessionaire is obligated to commence payment of Rental Obligations under this Agreement and will be on the same date as the North Terminal opening, which is currently scheduled to open on October 1, 2018.
1.27 Rental Obligation means the monthly rental obligation listed in Section 7.1 of this Agreement which shall be the MAG payment listed in Section 7.1.2 and 7.1.3 or the Monthly Rent Obligation payment listed in Section 7.1.1, whichever is greater.
1.28 Refurbishment Fund means the monies collected pursuant to Article 13 of this
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Agreement.
1.29 Turn-Over of Leased Premises means the physical turn-over of the Leased Premises to Concessionaire for construction and operation pursuant to the terms and conditions of this Agreement.
2. TERM
2.1 Development Period. The Development Period shall commence upon the Execution Date; provided, however, that such commencement date of the Development Period shall be for purposes of design and construction of Leased Premises only. In no event shall the Development Period extend beyond the Date of Beneficial Occupancy, except as otherwise extended herein.
2.2 Effective Date. Notwithstanding the provisions of Section 7.1 herein, this Agreement shall be effective upon the execution of this Agreement.
2.3 Concessions Operation Term. The Concessions Operations Term of this Agreement shall commence on the Rental Commencement Date and shall be effective for a term of seven (7) years.
2.4 Renewal Term. At the sole discretion of the Board, the Term may be renewed for one (1) additional one (1) year term.
2.5 Waiver of Direct and Consequential Damages for Delays in Construction of the North Terminal project. The Airport is currently in the construction phase of building its new North Terminal and related facilities. This construction is anticipated to take place during Development Period under this Agreement. The Airport does not warrant any specific completion date or date for the commencement of operations for the North Terminal or its related facilities, including access roads. Concessionaire is solely responsible for any costs or damages of whatever kind, direct or indirect, resulting from any delays in the construction or opening for operations any part of the North Terminal project or its related facilities. Concessionaire is encouraged to mitigate with appropriate insurance the Concessionaire’s risks that may be associated with any delays in the Airport’s construction of the North Terminal Project and related facilities. The Board and the City will not reduce rent or make other financial accommodations to Concessionaire based on any delays in the construction of the North Terminal Project, the opening and/or when operations begin at the North Terminal, or the fluctuation in passenger-related traffic at the Airport.
3. LEASED PREMISES
3.1 Leased Premises. As further indicated on Exhibit B, the Leased Premises shall consist of approximately 9,410 square feet for Package 1 or 9,326 square feet for Package 2, for the placement of news, gift and specialty retail concepts inside the North Terminal and ______square feet located in the South Terminal for support space.
3.2 Amendment of Leased Premises. The Board and Concessionaire may, during the Term
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and by mutual agreement, add additional certain non-revenue generating space(s) or delete any space(s) from the Leased Premises. All non-revenue generating space(s) added to the Leased Premises pursuant to this Section shall be subject to all of the terms, conditions, and other provisions of this Agreement and Concessionaire shall pay to the Board all rents, fees, and charges applicable to the additional space(s) in accordance with this Agreement. In the case of deletions of space(s) from the Leased Premises, rents, fees, and charges paid to Board by Concessionaire shall be appropriately adjusted. The Parties agree to modify the Summary of Contract Provisions, Exhibit A, and the Description and Diagram of Leased Premised, Exhibit B, as necessary, to incorporate space additions to the Leased Premises and space deletions from the Leased Premises by letter executed by or on behalf of the Board and acknowledged by Concessionaire, without need for formal amendment to the Agreement.
If Concessionaire desires to relinquish any portion of their premises to the Board, the Board reserves the right to use the space as best fits the Airport needs. Such uses may include leasing that portion of the premises to any interested parties for uses including but not limited to; food and beverage providers, news and gift retailers, and vending machines.
3.3 Reclaiming and/or Relocation of Leased Premises. The Board reserves the right to reclaim and/or relocate the Leased Premises, or any portion thereof, on a temporary or permanent basis, when, in the sole discretion of Board, such reclaiming is necessary for the development, operational necessity, security or safety considerations. The Board will make a reasonable effort to identify other location(s) within the Airport containing substantially the same area, visibility and exposure to passenger traffic as the portion(s) of the Leased Premises being reclaimed (such other location(s), if any, hereinafter referred to as the Replacement Leased Premises).
3.3.1 Notice. Except under special circumstances relating to security or safety, the Board shall exercise such right to reclaim and/or relocate the Leased Premises by giving Concessionaire not less than forty-five (45) days prior written notice of intent to reclaim/relocate the Leased Premises specifying the effective date of the reclaiming and identifying replacement Leased Premises, if any. Concessionaire shall, by written notice given to the Authorized Representative no later than fifteen (15) days after receipt of notice of intent to reclaim/relocate the Leased Premises, notify the Authorized Representative of its acceptance of the replacement Leased Premises, if any. If Concessionaire fails to provide written notice within fifteen (15) days, then Concessionaire will be deemed to have accepted the replacement Leased Premises. Upon acceptance and as of the effective date provided in the Board’s notice of intent to reclaim Leased Premises:
A. All of the terms, covenants, conditions and provisions of this Agreement shall continue in full force and effect and apply to the replacement Leased Premises;
B. Concessionaire shall move from the Leased Premises, or portion(s) thereof
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being reclaimed by the Board, into the replacement Leased Premises on or before the effective date stated in the Board’s notice of intent to reclaim Leased Premises and shall vacate and restore the Leased Premises to its original condition and surrender possession of the Leased Premises or portion(s) thereof being reclaimed by the Board;
C. Subject to the other provisions of this Agreement, Concessionaire shall be deemed to have accepted possession of the replacement Leased Premises in its “as is” condition as of the effective date stated in the Board’s notice of intent to reclaim Leased Premises; and
D. The Board will pay to Concessionaire reasonable and proper moving expenses to include moving of furniture, equipment, and other personal property into the replacement Leased Premises. Concessionaire shall pay all other costs to improve and build-out the replacement Leased Premises.
3.3.2 Payment for Unamortized Investment. In the event that the Board is unable to provide a suitable replacement Leased Premises, then the Board will pay to Concessionaire, within thirty (30) days of the effective date stated in the Board’s notice of intent to reclaim Leased Premises, an amount equal to the unamortized investment in the portion(s) of the Leased Premises being reclaimed less any of the unamortized investment attributable to trade fixtures moved to the replacement Leased Premises.
3.3.3 Partial Termination as to Reclaimed Premises. If no replacement Leased Premises are available, as determined solely by the Board, or if Concessionaire rejects the replacement Leased Premises, or if the Board deems the use(s) or concept(s) are not appropriate at the replacement Leased Premises, then the Agreement for the Leased Premises or portion(s) thereof being reclaimed will terminate on the effective date provided in the notice of intent to reclaim Leased Premises and Concessionaire shall vacate and restore the Leased Premises to its original condition within thirty (30) days of written notice by the Board or from the date that notice of rejection is provided by the Concessionaire.
3.3.4 Modification of Summary. The Parties agree to modify, within ten (10) days of the effective date stated in the notice of intent to reclaim Leased Premises, Exhibits A and Exhibit B, as necessary, to delete the portion(s) of the Leased Premises being vacated and incorporate the replacement Leased Premises, if any. These modifications will be confirmed by letter executed by or on behalf of the Board and acknowledged by Concessionaire, without need for formal amendment to the Agreement.
3.3.5 No Liability. Concessionaire shall not be compensated and the Board shall not be liable for any inconvenience to Concessionaire, for any interruption of Concessionaire’s business, or for any other damages as a result of moving to replacement Leased Premises.
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3.4 Minor Modifications to the Leased Premises. The Board shall have the right to make minor modifications to any portion of the Leased Premises at the sole discretion of the Board to accommodate Airport operations, security renovations, maintenance, or other work to be completed in the Airport Terminals. Minor modifications are subject to all provisions in Section 3.2.
3.5 Changes to Airport. Concessionaire acknowledges and agrees that the Board shall have the right at all times to change, alter, expand, and contract the Airport and its related facilities. The Board has made no representations, warranties, or covenants to Concessionaire regarding the design, construction, pedestrian traffic, enplanements, airline locations, or views of the Airport or Leased Premises. Although the Board will use reasonable efforts to minimize the effect of such changes on Concessionaire’s business, Concessionaire acknowledges that such activity may have some effect on its operations located at the Airport, and Concessionaire shall not be entitled to, nor shall the Board be liable for, any rent credit or other compensation therefor.
3.6 Ingress and Egress. Concessionaire will have the right of ingress to and egress to and from the Airport and the Leased Premises for Concessionaire’s officers, authorized officials, employees, agents, and invitees, including customers, suppliers of materials, furnishers of services, equipment, vehicles, machinery and other property. Right of ingress and egress will be subject to the Board’s and FAA’s regulations, as amended, applicable laws, and the Board’s rules, regulations and operating procedures.
3.7 Leased Premises Acceptance As-Is. Concessionaire accepts the Leased Premises in its current condition, as-is and with all faults, as of the date of the Turn-Over of Leased Premises. The Board shall not be obligated to construct additional improvements or to modify existing conditions, nor to provide services of any type, character, or nature (including any utilities or telephone/data service) on or to the Leased Premises during the Term other than as explicitly stated in this Lease.
3.8 No Warranty of Economic Viability. The Board makes no warranty, promises or representations as to the economic viability of the Leased Premises or Concessionaire’s business concept(s) or any other matter pertinent to the potential or likelihood for success or failure of Concessionaire business operations. Concessionaire acknowledges that airline gate usage and other aspects of Airport operations are subject to change during the Term without notice and that the Board makes no warranty regarding the location of airline gate or terminal usage. Except as is specifically set forth herein, the Board shall not, by virtue of the existence of this Lease, be constrained in connection with its operation of the Airport.
4. CONSTRUCTION AND CAPITAL INVESTMENT
4.1 Construction by Concessionaire. Concessionaire shall have the obligations to design, finance and construct certain Leasehold Improvements to the Leased Premises at the areas designated on Exhibit B. All constructions performed by Concessionaire shall be performed pursuant to the terms and conditions of this Agreement.
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4.2 Construction Standards. In its design and construction work on the Leased Premises, Concessionaire will fully comply with the Concession Design Criteria Manual that were listed in the RFP and attached hereto as Exhibit C. The Board reserves the right to amend the Concession Design Criteria Manual during the Term. Concessionaire agrees to comply with the Concession Design Criteria Manual in effect as of the date of any construction it undertakes.
4.3 Minimum Initial Capital Investment. Concessionaire’s minimum capital investment towards the initial design, construction and equipping of the Leased Premises shall be $______for Package 1 or $ ______for Package 2.
If the actual initial capital investment, as certified by the Concessionaire, is less than the proposed Minimum Capital Investment, then Concessionaire agrees to pay to the Board, within thirty (30) days of such determination, the difference between the actual initial capital investment and the minimum initial capital investment. Any amounts paid to the Board as a result of this provision shall not be deemed a capital investment for any purpose under this Agreement nor shall it be deemed payment of any rent or other fees due under this Agreement.
4.4 Development Schedule. No later than thirty (30) days after the Execution Date, or at such later date as the Board may agree, Concessionaire and the Program Manager and Authorized Representative will meet for a Pre-Design Meeting. Within ten (10) business days after the Pre-Design Meeting, Concessionaire must submit to the Authorized Representative, for its approval, a Development Schedule that sets forth for each of the Concession Locations, the anticipated dates of design submittals and reviews, the anticipated Turnover of Leased Premises date, and the anticipated date of Substantial Completion of the initial Approved Project(s), as defined in Section 4.6. Upon approval by the Board, the Development Schedule will be attached hereto as Exhibit D, Development Schedule, and will be confirmed by acknowledgement from the Board, without need for formal amendment to the Agreement.
4.5 Submittal Plans and Specifications. Prior to Concessionaire’s commencement of any construction activities on the Leased Premises at any time during the Term, Concessionaire shall submit plans and specifications that conform to all of the requirements of the Concession Design Criteria Manual and Development Schedule to the Authorized Representative for review and approval. No construction work shall commence until the Board has approved the plans and specifications and has issued a notice to proceed.
4.6 Approval of Plans and Specifications. The Board will review and respond to submittals of plans and specifications within thirty (30) days or provide notice to Concessionaire that the review time has been extended. In the event of disapproval by the Board of any portion of any submittal of plans and specifications, Concessionaire shall promptly make modifications and revisions and re-submit for approval by the Board.
4.6.1 Approval of Projects. Concessionaire may submit and the Board may approve
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construction plans and specifications on an individual project basis. For purposes of this Agreement an “Approved Project” shall mean any project that has been approved by the Board.
4.6.2 Disclaimer of Compliance with Laws or Codes. The approval by the Board of any plans and specifications refers to the conformity of such plans and specifications to the Concession Design Criteria Manual and other the Board standards. Approval of any plans and specifications by the Board does not constitute its representation or warranty as to their conformity with applicable laws, statutes, codes, or permits and responsibility therefore at all times remains with Concessionaire.
4.6.3 Approvals Extend to Architectural and Aesthetic Matters. Required approval of the Board will extend to and include architectural and aesthetic matters. The Board reserves the right to reject any designs submitted by Concessionaire and to require Concessionaire, at Concessionaire’s expense, to make modifications and revisions and to resubmit designs until designs are deemed acceptable and subsequently approved in writing by the Board.
4.6.4 Design and Permitting. Concessionaire shall be responsible, at its sole cost and expense, for the costs of design and permitting of all improvements within the Leased Premises, and shall not commence any work with respect to an Approved Project until all governmental permits and approvals with respect to the Approved Project have been obtained. At no cost or liability to the Board, the Board shall cooperate in all reasonable respects with Concessionaire’s efforts to obtain such permits and approvals, which cooperation shall include, without limitation, the execution of such instruments as may be required by governmental authorities in order for Concessionaire to apply for and obtain such permits and approvals.
4.7 Performance and Payment Bonds. During the Term when any Leasehold Improvements are constructed, installed, renovated or refurbished, Concessionaire shall procure and furnish to the Board Payment and Performance Bonds written by a company or companies acceptable to the Board and authorized to write such bonds in the State of Louisiana each in an amount not less than the cost of such construction, installation, renovation or refurbishment, for the use of the obligee/owner, the Board and the City, and all persons doing work or furnishing skills, tools, machinery, materials, insurance premiums, equipment or supplies incident to such construction, installation, renovation or refurbishment. Such bonds shall remain in force and effect throughout all construction and until Concessionaire submits and the Board approves lien waivers from all contractors and subcontractors. The surety company must be authorized to do business in the State of Louisiana and have a rating of “A” or better in the most current edition of the A.M. Best Insurance Report. The bonds must be countersigned by a Louisiana licensed agent authorized to represent the surety company writing the bond and that agent’s power of attorney must be attached to the bond submitted. The Performance and Payment Bonds shall be retained by the Board and City for the entire term of the construction of any Leasehold Improvements.
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4.8 Construction
4.8.1 Time is of the Essence. Concessionaire agrees and acknowledges that time is of the essence with respect to the commencement and completion of construction and all other work necessary for the completion of each Approved Project and opening of all concessions locations when the North Terminal opens. At present, it is anticipated that all approved projects should be completed and each concessions location should be ready to commence commercial operation on or before the Date of Beneficial Occupancy.
4.8.2 Commencement of Construction. Concessionaire shall, at its own cost and expense, commence construction of an Approved Project within ten (10) days of the Turnover of Leased Premises date stated in the notice to proceed for such Approved Project; all necessary building, demolition, or other permits and approval must be obtained by this date and Concessionaire agrees that all construction work to be performed, including all workmanship and materials, shall be of first class quality and in accordance with the Development Schedule and the Concession Design Criteria Manual. All construction shall be performed in accordance with the requirements of this Agreement and applicable laws, regulations, ordinances, codes and permits. The Board and its designees shall have the right from time to time to inspect each Approved Project.
4.8.3 Cooperation during Development Period. During all phases of the Development Period, Concessionaire shall cooperate and provide each other such other documentation or information reasonably requested by the Board, Authorized Representative or Program Manager to ensure the proper and timely coordination of the development tasks or activities necessary for the timely completion of the North Terminal Project.
During the Development Period, Concessionaire shall coordinate construction and access to the Leased Premises with the CMAR through the Program Manager for the Airport’s new North Terminal Development Project as the development and construction period will be simultaneous with the development of the Airport’s new North Terminal.
4.8.4 Completion of Construction. Concessionaire must complete all Approved Projects and open for business no later than the required completion date set forth in the notice to proceed for the Approved Project which is anticipated to be no later than October 1, 2018, subject to any extensions that may be approved by the Board.
4.8.5 Project Closeout. For each Approved Project, Concessionaire shall conform to project closeout and operational readiness activities set forth in the Development Schedule or Concession Design Criteria Manual and further agrees that it shall deliver to the Board within sixty (60) days of the construction completion date the following evidence of completion:
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A. “As built” record documents of the construction, additions and other modifications constructed by Concessionaire on the Leased Premises. During the Term, Concessionaire shall keep said documents current, with all changes or modifications made by Concessionaire in or to the Leased Premises or additions thereto.
B. A statement certified by Concessionaire’s chief financial officer specifying the final capital investment related to each of the Approved Projects with the level of detail as requested by the Board.
C. A certification that construction has been completed in accordance with the approved plans and specifications and in compliance with all laws and other governmental rules, regulations and orders.
D. Certified proof demonstrating that no liens exist on the Leased Premises, including but not limited to, a waiver of lien from all construction contractors and signed releases from all subcontractors that indicate receipt of payment in full for all work performed or trade fixtures delivered.
4.8.6 Additional Improvements and Alterations. Concessionaire shall make no alterations or improvements, including repairs, to the Leased Premises following Date of Beneficial Occupancy without the prior written approval of the Board which shall set forth the procedures applicable to the alteration. To obtain the Board's written authorization, Concessionaire agrees to submit written specifications of the modifications requested to the Authorized Representative. The Board's approval shall not waive any local, State or federal requirements governing such alterations and improvements. All alterations, improvements or repairs made to the Leased Premises will be at the sole cost and expense of Concessionaire.
4.8.7 Removal of Unapproved Improvements. Improvements made on the Leased Premises without the approval of final plans for said improvements as outlined herein are hereby determined to be unapproved improvements constructed or installed in violation of the conditions, restrictions and requirements of this Agreement. Unapproved improvements shall be immediately removed at Concessionaire's sole expense, unless otherwise approved in writing by the Board. Portions of improvements that are not constructed as indicated and specified on approved plans are also hereby determined to be unapproved improvements and shall be immediately removed or corrected at Concessionaire's sole expense.
4.8.8 Delayed Commencement Fee for Failure to Complete Construction of an Approved Project. Concessionaire acknowledges that if it fails to open for business by the required completion date, the delay may cause the Board to suffer substantial damages, therefore, if Concessionaire fails to either complete construction of one or more Approved Projects or open the concession location for business by the required completion date, the following will apply:
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A. If Concessionaire is unable to open any unit by the commencement date, a delayed commencement fee shall be due to Board in the amount of one and a half (1.5x) the projected rent for said unit(s), prorated over that given period of time.; and
B. If the Concession Location is not open for business within thirty (30) days after the required completion date, the failure is an event of default and the Board has the right to exercise any and all remedies herein, at law or in equity, including but not limited to, the option to terminate this Agreement or to remove the applicable concession location from the Leased Premises.
4.8.9 Delay Due to Force Majeure. Notwithstanding the foregoing, the Parties agree that any delay in construction of any improvements due to force majeure or acts of the Board or the Board’s contractors shall extend the required completion date for an Approved Project. Any extension provided per the terms of this Section shall be limited to the actual delays caused by any such force majeure event or act of the Board. However, the Board shall have no liability to Concessionaire for compensation or damages for any such delay.
4.9 Liens
4.9.1 Waiver. The City and the Board and the interest of the City and the Board in the Leased Premises shall not be liable for or subject to any mechanic’s, laborer’s or materialmen’s liens for materials furnished, improvements, labor or work made by or for Concessionaire to the Leased Premises. Concessionaire shall not pledge, lien, or otherwise encumber any assets located at the Airport or any interest in this Agreement without prior, written, approval by the Board. Concessionaire shall not allow any mechanic’s, materialmen’s, or laborers’ liens to attach to the Leased Premises. Concessionaire shall require every sub- concessionaire, sub-tenant, contractor or sub-contractor with whom its contracts to execute a waiver of the right to file any liens against the Airport or the Leased Premises, which waiver shall be effective against claims by any such entities and all materialmen, vendors, laborers and workers arising from any work, services, or goods furnished at the Airport.
4.9.2 Discharge. In the event any construction, mechanic’s, laborer’s, materialmen’s or other lien or notice of lien is filed against any portion of the Leased Premises for any work, labor or materials furnished to the Leased Premises, whether or not the same is made or done in accordance with an agreement between the Board and Concessionaire, Concessionaire will cause any such lien to be discharged of record within thirty (30) days after notice of filing thereof by payment bond or otherwise or by posting with a reputable title company or other escrow agent acceptable to the Board, security reasonably satisfactory to the Board to secure payment of such lien, if requested by the Board, while Concessionaire contests to conclusion the claim giving rise to such lien.
4.10 Lien and Privilege. To the extent permitted by law, the Board shall have a lien
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upon all Trade Fixtures and Personal Property of the Concessionaire placed in or on the Leased Premises for the purpose of securing the payment of all sums of money that may be due to the Board from Concessionaire under this Agreement.
This lien shall supersede any other lien including any lien created in connection with Concessionaire’s financing. Concessionaire is prohibited from pledging any Trade Fixtures and/or Personal Property without prior, written permission of the Board.
4.11 Permanent Signage. Subject to the terms and conditions of this Agreement, Concessionaire shall have the right to install and maintain signs on the Leased Premises, provided that the design, installation and maintenance of all signs shall be subject to the terms of this Section and comply with the Concession Design Criteria Manual. Concessionaire further acknowledges the Board’s desire to maintain a high level of aesthetic quality in all concession facilities throughout the terminal buildings. Therefore, Concessionaire covenants and agrees that in the exercise of its privilege to install and maintain appropriate signs on the Leased Premises, as provided herein, it will submit to the Authorized Representative, for the Board’s review and approval, the size, design, content, construction or fabrication and intended location of each and every sign it proposes to install on or within the Leased Premises. Concessionaire shall not install signs of any type on or within the Leased Premises without prior written approval of the Board, which approval shall not be unreasonably withheld or denied if the proposal is in compliance with the Concession Design Criteria Manual, and the Board’s rules, regulations, and operating procedures.
5. USE OF LEASE PREMISES
5.1 Permitted Uses. Pursuant to the terms and conditions of this Agreement, the Leased Premises shall be used by Concessionaire or its sub-concessionaires and/or sub-tenants only for the provision of food and beverage services at the Airport, including but not limited to the sale of food and beverage, use as office and administrative space, and for the preparation and storage of products necessary for the provision of food and beverage services. The Board may, in its sole discretion, expand the permitted uses of the Leased Premises.
5.1.1 Storage. Concessionaire may use up to twenty percent (20%) of the Leased Premises located in the North Terminal for storage of products necessary to provide the food and beverage services contemplated in this Agreement.
5.1.2 Additional Storage: Southside Terminal Option. Pursuant to subsequent agreement of the Parties, Concessionaire may use designated portions of the Southside Terminal as additional storage.
5.1.3 Additional Storage: New Construction. Pursuant to subsequent agreement of the Parties, Concessionaire may be granted the right to build additional storage on the Airport Property at Concessionaires expense and thereafter rented at Fair Market Value.
5.1.4 Additional Storage: Offsite Storage. Pursuant to private agreement with the
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Concessionaire and any third parties, Concessionaire may contract with a third party to provide off-site storage.
5.1.5 Delivery and Distribution. Regardless of the additional storage to be utilized by Concessionaire, Concessionaire acknowledges that the distribution of goods and products shall be regulated by all applicable state, federal and local law, rules, and ordinances as well as the Board’s rules, regulations, and standard operating procedures. However, nothing herein shall allow Concessionaire to use any portion of the Leased Premises to store or stock any goods, items, or products not intended to be offered for sale at or from the Leased Premises.
5.2 Restricted Uses. Nothing contained in this Article shall be construed as authorizing Concessionaire to conduct any business not specifically permitted by this Agreement or in areas at the Airport other than the Leased Premises. Any rights not specifically granted to Concessionaire are hereby reserved by the Board.
5.2.1 Interference with Airport Operations. Concessionaire shall not use the Leased Premises, or allow the Leased Premises to be used, in any manner that interferes with or adversely affects the operation or maintenance of the Airport.
5.2.2 Excessive Load. Concessionaire will not place excessive loads on the walls, ceilings, and floor or pavement areas of the Airport and will repair any area damaged by excessive loading to the satisfaction of the Board.
5.2.3 Obstruction. Unless approved in writing in advance by the Board, which approval is in the Board’s sole discretion, Concessionaire will not obstruct any part of the Airport terminals outside of the Leased Premises and shall not otherwise interfere or permit interference with the use, operation, or maintenance of Airport. Concessionaire shall keep all service corridors, hallways, stairways, doorways, or loading docks leading to and from the Leased Premises free and clear of all obstructions.
5.2.4 Vending Machines. Unless approved in writing in advance by the Board, which approval is in the Board’s sole discretion, Concessionaire shall not install or permit to be installed vending machines on the Leased Premises. The Board reserves the right to install and maintain, through independent contractors, vending machines at the Airport including in Support Spaces.
5.2.5 No Smoking. The Airport is a non-smoking facility. No smoking shall be permitted on the Leased Premises.
5.2.6 Limits on Displays and Operations. Unless approved in writing in advance by the Board, which approval is in the Board’s sole discretion, Concessionaire will not permit the active display or operation on the Leased Premises of any display that flies, flashes, or emits a noise or odor.
5.2.7 Noise Levels. The Board and Concessionaire and/or its sub-concessionaires and sub-tenants acknowledge and agree to use best efforts not to disturb other
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concessionaires or customers in the Airport. The level of noise shall not exceed such volume in which people in the concourse or terminal areas immediately adjacent to the Leased Premises cannot hear the public address system. Concessionaire and/or its sub-concessionaires and sub-tenants agree to adjust the volume or noise level as directed by the Board at the Board’s sole discretion.
If equipment begins to operate at noise levels of 10% above manufacturer's operating specifications, the equipment must be replaced or repaired to within manufacturer's specifications. If possible, remote compressors for coolers should be utilized.
5.2.8 Entertainment. Concessionaire and/or its sub-concessionaires and sub-tenants may not transmit any unlicensed or non-copyrighted music, radio broadcasts, recorded music, television or movie broadcasts, in the Leased Premises in compliance with Federal Copyright Law found in Title 17 of the United States Code, or as amended. Any such permits, licenses or copyrights must be obtained by Concessionaire and/or its sub-concessionaires and sub-tenants.
5.2.8.1 Cable Television. The Board reserves the right to require Concession tenants to use one (1) cable television provider as selected by the Board.
5.2.8.2 Wireless Internet. Concessionaire and/or its sub-concessionaires and sub-tenants are not permitted to install its own high-speed wireless local area network (“WLAN”) without the express written consent of the Board.
5.2.9 Hazardous Substances and Activities. No goods, merchandise, or materials shall be kept, stored or sold in or on the Leased Premises that are explosive or hazardous; and no offensive or dangerous trade, business, or occupation shall be carried on in the Leased Premises. Nothing shall be done on the Leased Premises, unless provided for in this Agreement, which will increase the rate or suspend the insurance upon the Leased Premises or upon structures of the Board. No machinery or apparatus shall be used or operated on the Leased Premises which will damage the Leased Premises or adjacent buildings; provided, however, that nothing in this Section contained shall preclude Concessionaire from bringing, keeping, or using on or about the Leased Premises such materials, supplies, equipment, and machinery as are appropriate or customary in carrying on its business.
5.2.10 Compliance with Applicable Laws, Ordinances, Permits and Licenses. Concessionaire and its sub-concessionaires and sub-tenants shall comply with all provisions of this Agreement and applicable state, federal and local laws and ordinances as well as all permits and licenses necessary for the operation of the services provided on the Leased Premises. The Board may assess fines as set forth in Section 6.24 until such prohibited act is ended. Moreover, if the prohibited act is not corrected as directed by the Board, the Board or its
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representative shall have the right to enter upon the Leased Premises and take corrective action, and Concessionaire agrees to promptly reimburse the Board for any related costs, plus an administrative fee equal to fifteen percent (15%) of the corrective action costs.
6. OPERATIONS AND PERFORMANCE STANDARDS
6.1 The Board’s Requirements. The occupancy and use by Concessionaire of the Leased Premises and the rights herein conferred upon Concessionaire shall be subject to the Board’s rules and regulations, and operating directives as are now or may hereafter be prescribed by the Board through the lawful exercise of its powers.
6.1.1 Additional Compliance. Concessionaire shall comply with all applicable laws, ordinances, regulations, codes, licenses, and permits in the conduct of its operations under this Agreement including, but not limited to, TSA regulations regarding products or procedures.
6.2 Performance Standards. Concessionaire shall conduct its business in a manner so as to meet the needs of Airport patrons and employees and in a manner that will reflect positively upon the Concessionaire, the City, the Board and the Airport. The Concessionaire shall equip, organize and efficiently manage the Leased Premises to provide first class service and products in a clean, attractive and pleasant atmosphere.
6.2.1 Health and Safety Standards. Concessionaire shall comply with all health and sanitary regulations adopted by the Board, Parish of Jefferson, Parish of Orleans, City of Kenner, State of Louisiana and any other governmental authority with jurisdiction over the Airport. Concessionaire shall give access for inspection purposes to any duly authorized representatives of all such governing bodies. Concessionaire shall provide the Authorized Representative with copies of all inspection reports by other health and sanitary governing bodies within forty- eight (48) hours of receipt. This paragraph does not require Concessionaire to waive any applicable attorney-client or attorney work product privileges.
6.2.2 Concessionaire’s Standards. Concessionaire shall submit to the Authorized Representative a copy of its standards, plans and manuals for customer service and operations, at least thirty (30) days prior to Rental Commencement Date, and as updated during the Term. Concessionaire shall ensure continuous adherence to Concessionaire’s own standards in addition to other standards as set forth herein.
6.2.3 Franchise Standards. All franchise standards applicable to a concession location shall be met or exceeded. Copies of the franchise standards and performance audit forms shall be sent to the Authorized Representative prior to the Rental Commencement Date. Concessionaire shall submit to the Authorized Representative copies of all inspections conducted by the franchisor or mystery shopper service hired by the franchisor within ten (10) days of receipt by Concessionaire. If any Concessionaire employee has failed to meet Franchise’s standards three times in a twelve month that employee may be
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required to be removed from work under this Agreement.
6.3 Quality. All merchandise sold or kept for sale shall be of high quality and wholesome, and must conform to the fullest extent with all applicable food and drug laws, ordinances and regulations, as well as the Board’s rules and regulations and operating procedures.
6.3.1 Quality of Products and Services. Concessionaire shall ensure that all customers are provided first class merchandise and services, and Concessionaire shall keep in stock and have ready for sale at all times of operation, a sufficient supply and variety of the most popular products and goods offered for sale at each location, consistent with the product price list, to meet the demand of customers at the Airport.
6.3.2 Quality Deficiencies. If the Board identifies any deficiencies with respect to the operations, including, without limitation, quality, variety, and quantity of goods or services offered, then the Board may provide written notice of such deficiencies to Concessionaire and Concessionaire shall remediate any such deficiencies as outline in Sections 6.21 and 6.22 herein.
6.3.3 Approved Products. The Board reserves the right to approve all items sold by Concessionaire or its sub-concessionaires or sub-tenants and Concessionaire may only sell those products and provide those services which are specifically pre- approved by the Board. Such approval shall not be unreasonably withheld or delayed.
Concessionaire shall not add, delete or sell any goods or services not included on the product price list, nor change the price of any good or service, without first receiving written approval from Board, which approval shall not be unreasonably withheld or delayed. Written approval shall serve to modify the product list without need for amendment of this Agreement.
6.3.3.1 Pricing. Prices for all merchandise must be displayed and available to all customers. For merchandise that is sold at marked suggested retail prices, or at street pricing, Concessionaire must display local comps on pricing signage to encourage the sale of the merchandise at the airport.
6.3.3.2 Product Displays. The Board reserves the right to approve all product displays. Concessionaire hereby affirms that the Board, in its sole discretion, has the absolute right to require that Concessionaire discontinue the sale of any product the Board deems unsatisfactory, distasteful, or inappropriate for any reason and to require Concessionaire to modify product displays for any reason. If Concessionaire fails to comply with any such request by the Board within one (1) day after written notice from the Board, the Board may assess fines as described in Section 6.24.
6.4 Personnel and Training. Concessionaire shall hire, train, supervise, and deploy a sufficient number of properly trained representatives, agents, and employees
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(collectively hereinafter referred to as Personnel) to service customers in a timely and efficient manner and to properly meet Concessionaire’s obligations herein.
6.4.1 Supervision of Employees. Concessionaire shall closely monitor Personnel to ensure first class service to customers in compliance with this Agreement. The satisfactory performance of the obligation hereunder shall be determined in the sole discretion of the Board. Concessionaire shall take all proper steps to discipline Personnel who participate in acts of misconduct on or about the Leased Premises.
6.4.2 General Manager. Concessionaire shall appoint an active, qualified, competent and experienced General Manager to oversee and manage Concessionaire’s performance and represent and act on behalf of Concessionaire. The General Manager shall have full authority to make day-to-day business decisions on behalf of Concessionaire with respect to the Concession including, but not limited to, authority to control the conduct and demeanor of Concessionaire’s Personnel. The General Manager shall represent the Concessionaire in dealings with the Board and shall coordinate all concession activities with the Board. The General Manager shall be assigned to an office at the Airport and shall be at the Airport during the Board’s regular business hours. The Board may require the General Manager to be at the Airport during peak travel periods, outside of the Board’s regular business hours. The General Manager shall designate a qualified, competent, and experienced subordinate to be in charge and available during the General Manager’s absence during Concessionaire’s regular operating hours.
6.5 Concessionaire Provided Customer Service Training. Concessionaire shall implement a customer service training program and require that all employees employed by Concessionaire at the Leased Premises shall complete Concessionaire’s training program within one month (1) of their employment commencement date and receive additional customer service training each Agreement Year. The Board may require Concessionaire to provide additional customer service training to employees who receive an unsatisfactory mystery shopper score.
6.5.1 The Board’s Customer Service Training. The Board shall have the right to implement its own customer service training program. If the Board establishes a customer service training program for the employees of all concessionaires at the Airport, the Board, after first giving reasonable notice to Concessionaire, will require all of Concessionaire’s employees to complete the training program within one month of the establishment of the program or within one month of any new employee(s) commencement of employment by Concessionaire at the Airport. Further, Concessionaire will require that its employees receive additional training as may be required by the Board.
If established, the Board’s customer service training program will be limited to no more than two (2) full working days per employee per year, will be conducted at the Airport, and will be evidenced by a Certificate of Completion
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issued to each employee upon successful completion. The Board customer service training program will be offered at no cost to Concessionaire; however Concessionaire will be responsible for employees’ wages, benefits and other employment costs incurred as a result of the training.
6.5.2 Additional Personnel Requirements. In addition to the Personnel requirements set forth herein, Concessionaire shall ensure that all Personnel engaged in the performance of the Concession shall conform to the Airport’s rules, regulations, and operating procedures.
6.5.3 The Board’s Right to Object. The Board shall have the right to object to the demeanor, conduct, and appearance of any personnel of Concessionaire or any of its invitees or those doing business with it. Immediately upon notice of objection by the Board, Concessionaire shall take all steps necessary to remedy the cause of the objection. If requested by Concessionaire, the Board shall present its objections in writing and provide Concessionaire the opportunity to reply to the objections and such reply will be given consideration by the Board.
6.5.4 Employee Retention Requirements. The Airport is dedicated to exceptional customer service and will require the Concessionaire to operate concession spaces in an efficient, customer friendly, well-run manner to meet the needs of customers. Existing news, gift and specialty concession employees who have worked at the Airport have developed invaluable knowledge and experience regarding MSY operations and the professional handling of conditions specific to an airport, such as sudden influxes of customers during peak periods of the day, changes in airline schedules, impact of weather conditions, interfacing with Airport and TSA security requirements, and other situations unique to airport operations.
To further ensure that concession services are not interrupted upon the Lessor entering into new concession service contracts, Concessionaire shall offer continued employment to the employees of the immediately preceding concessionaire for a period of 180 days, unless Concessionaire determines and demonstrates to the NOAB’s satisfaction that such employees are unnecessary for the Concessionaire’s provision of concession services, or that such employees do not have the experience required for the Concessionaire’s provision of concession services, or that such employees do not have the experience required for the Concessionaire’s provision of concession services. Employees retained may be terminated for cause within the 180-day period. However, this worker retention requirement shall not apply to employees who are exempt from overtime compensation requirement of the federal Fair Labor Standards Act, 29 CFR Part 201. Nothing in this provision obligates Concessionaire to continue the employment of any individual beyond such 180 day period.
Concessionaire and its subtenants and/or joint venture partners may only interview employee candidates outside this group of incumbent food and beverage
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concession employees when there are no longer any employees of the current food and beverage concessionaires available to hire in similar job classifications.
Concessionaire shall ensure that all subcontracts for operating concessions at the Airport contain the above worker retention requirement.
6.5.5 Subject to the terms of section 6.5.4 above, when there are no more current concession employees available to hire in similar job classifications, the Concessionaire shall utilize City’s government office, The Office for Workforce Development (“OWD”), as its first source for recruitment, referral, and placement of all new hires for employment opportunities at the Airport. The Concessionaire shall notify OWD of its specific need for new employees at least five (5) business days before advertising the employment opportunity to the general public. Specific needs shall include, at a minimum, the number of employees needed by job title, qualifications, hiring date, rate of pay, hours of work, duration of employment, and a brief description of the work to be performed. The Network will screen applicants and provide the Concessionaire with a list of qualified candidates according to the specific needs set forth by the Concessionaire. The Concessionaire shall assess qualified candidates and notify OWD of those referred first source candidates solicited who are deemed unqualified and the reason(s) why they failed to qualify for employment. This first source program does not limit the Concessionaire' ability to assess qualifications of prospective candidates for employment. Nor does this provision make final hiring and retention decisions. Rather, all hiring decisions are left to the Concessionaire and this first source program is simply a tool to be used as the first source for recruitment, referral and placement of new hires. By entering into this Lease, Concessionaire acknowledges that it shall use OWD as its first source for recruitment, referral, and placement of all new hires for employment opportunities created by this Agreement. The Concessionaire will include the requirements of this provision in all joint-venture agreements, leases, subleases, and subcontracts regarding concessions at the Airport. (See Article 21 below regarding continuing Workforce Development obligations)
6.6 Cost of Delivery and Distribution. Concessionaire is responsible for the cost of delivery and distribution of goods, including but not limited any transportation and security screening services cost.
6.6.1 Delivery and Distribution Scheduling. Concessionaires must establish dependable and flexible delivery and distribution schedules that enhance security, do not disrupt airline service, and ensure that the Concessionaire always has products and goods available for purchase. In addition Delivery and Distribution routes must also limit passage through public areas traversed by the passengers.
6.6.2 Equipment. Any equipment used to distribute product and goods in the terminal must have rubber wheels to protect the terminals flooring. Equipment must be kept in clean and in proper working order. Equipment used to bring goods in
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may not be used to bring waste out. Waste out equipment must be leak proof and be able to enclose its contents.
6.7 Pricing. Concessionaire acknowledges the Board’s objective to provide Airport patrons and employees high quality merchandise at reasonable prices. Concessionaires shall provide quality news, gift and specialty retail at prices that do not exceed ten percent (10%) above the average price charged for the similar or identical products at identical or similar concepts in the New Orleans metro area for Board approval.
A. For merchandise with a pre-printed price affixed by the manufacturer or distributor, the selling price at the Airport shall not exceed the pre-printed price;
B. Nationally and locally branded concepts shall be compared to three (3) locations of the same brand located in the New Orleans metro area. Locations found closer to the Airport shall not be left out of comparisons in favor of locations located closer to the French Quarter or the Central Business District.
1. If there are not three (3) locations of the same brand located in the New Orleans metro area, Concessionaire must benchmark against as many of the same brands locations as possible, and shall follow the policy found in Section 6.7.C. for the remaining comparisons.
C. For all non-branded, proprietary, or branded concession locations not represented off-Airport in the New Orleans metropolitan area, the price for merchandise at the Airport shall not exceed the average price, by more than ten percent (10%) for the same or similar merchandise (of like size and quality). Three Price Benchmark Establishments must be selected by Concessionaire. Three (3) additional Price Benchmark Establishments may be selected by the Board, if the Board believes that the concessionaire has left out comparable locations in favor of locations that maintain a pricing structure that does not provide value to the customer. In such case, the price for merchandise shall not exceed the average price, by more than ten (10%) for the same or similar merchandise at the six (6) locations.
D. Price Benchmark Establishments. No less than forty-five (45) days prior to the Rental Commencement Date, Concessionaire must submit to the Authorized Representative the names and addresses of at least three (3) locations inside of (i) Lakeside Mall; (ii) Canal Place; (iii) Clearview Mall; (iv) Elmwood Eateries; (v) similar, nationally or regionally branded concepts located in Jefferson Parish; or (vi) any location approved by the Board in writing within fifteen (15) days of receipt of Concessionaire’s list of three (3) Price Benchmark Establishments, the Board shall submit to Concessionaire its list of three (3) Price Benchmark Establishments.
6.7.1.1 Excluded Locations. Locations inside of hotels, stadiums, arena, movie theaters, amusement parks, and similar point of interest location shall not be used as a Price Benchmark Establishment.
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6.7.1.2 News and Gift (Convenience) locations are comparable to neighborhood convenience stores such as Walgreens and Rite Aid, as well as national gas stations like Shell and Exxon. At least one (1) neighborhood convenience store or national gas station must be used in Price Benchmark Establishments in reports for News and Gift (Convenience) locations.
6.7.1.3 Amendments to Benchmarks. Once approved by the Board, the businesses (hereinafter referred to as the Price Benchmark Establishments) will be used as the basis for price comparisons during the remainder of the Term. In the event any of the Price Benchmark Establishments ceases operations or, in the sole discretion of the Board, alters its concept, branding, service style, merchandise selection or menu so as to no longer be a valid comparison, Concessionaire must propose a substitute Price Benchmark Establishment for approval by the Board.
6.7.2 Price Surveys. No later than forty-five (45) days prior to the Rental Commencement Date and prior to the beginning of each year of the Term, Concessionaire shall, at its own expense, prepare a product and price survey of the Price Benchmark Establishments that demonstrates, to the satisfaction of the Board, Concessionaire’s compliance with the pricing standards herein. Concessionaire shall also provide to the Authorized Representative, a price list of each and every item and service to be sold at a concessions location which shall be subject to approval of the Board. Further, at any time during the Term, Concessionaire shall provide a current product price list to the Authorized Representative within ten (10) days of written request by the Authorized Representative.
6.7.3 Price Changes. Throughout the Term, Concessionaire may request changes to pricing once every four (4) months, or more frequently as agreed to by the Board. Requested price changes must be submitted in writing and include such information and data as reasonably requested by the Authorized Representative including, but not limited to, the results of price surveys or other economic justification supporting the requested price changes(s). The Board shall, in its sole discretion, determine which, if any, price changes are consistent with the Pricing Standard and shall notify Concessionaire in writing of its approval or rejection of each requested price change.
No later than ten (10) days after any adjustment to prices, the Parties agree to modify the product price list to incorporate said price adjustments. Modification will be confirmed by letter written acknowledgment from, or on behalf of, the Board without need for formal amendment to the Agreement.
6.7.4 Airport Employee Discount. Concessionaire shall offer a ten percent (10%) discount on all merchandise purchased by Airport employees and employees of airlines operating at the Airport who have been issued (and show at the time the discount is requested) appropriate identification badges. The discount shall be
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based on Concessionaire’s normal non-sale or non-promotional prices.
6.7.5 Price Conformance. At any time during the Term, the Board may survey or cause to be surveyed, prices being charged for goods or services offered by Concessionaire. The Board shall have the right to monitor and test all of Concessionaire’s merchandise prices by a shopping service or the Board personnel. If the Board concludes, based on the results of the survey, that any prices being charged by Concessionaire do not comply with the Pricing Standard, the Board will require Concessionaire to adjust prices to the amounts permitted herein.
6.7.5.1 Price Adjustments. Concessionaire shall, within three (3) days of written notice from the Board, adjust any prices that the Board determines, in its sole discretion, to be inconsistent with the pricing standard. Failure to rectify any pricing discrepancies within the aforementioned three (3) business days constitutes a material breach by Concessionaire of this Agreement and, in addition to the assessment of fines as set forth herein and all other remedies available to the Board, the Board may, in its sole, terminate this Agreement.
6.7.6 Deficiency Penalty-Pricing Policy. In addition to performance standards fines which may be assessed upon initial notice of noncompliance, Concessionaire is subject to deficiency penalties for failing to rectify any pricing discrepancies within the aforementioned three (3) business days. The deficiency penalty for failure to comply with the pricing policy shall be $100 per item per day.
6.8 Hours of Operation. Unless otherwise agreed to in writing by the Board, which shall be in the Board’s sole discretion, Concessionaire shall ensure that, throughout the Term, each concession location is open for business without interruption during the hours of operation which shall be (i) two hours prior to the first departure until the time of the last departure or (ii) 4:30am till 9pm, whichever is greater.
6.8.1 Changes to Store Hours. The Board may, in its sole discretion, change store hours during the Term. Concessionaire hereby acknowledges and agrees to operate the concession locations as required which, if requested by the Board, may be 24 hours per day seven (7) days per week, including all holidays. Concessionaire may request changes to store hours. The Board may, in its sole discretion, approve such requested changes.
No later than ten (10) days after a change to store hours for any concession location, the Parties agree to modify Exhibit A to incorporate the change in store hours, which will be confirmed by letter executed by the Board, without need for formal amendment to the Agreement.
6.8.2 Extension of Store Hours. Concessionaire agrees to remain open beyond tore hours for certain events including, but not limited to, the following:
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A. In the event of a delayed flight on the Airside Terminal in which any concession location(s) is located, Concessionaire shall remain continuously open and provide all goods and services as required by the Agreement beyond the then current store hours for the concession location(s) in the affected airside terminal and until the delayed flight departs the gate or the Board otherwise instructs.
B. In the event of an emergency, as determined by the Board, Concessionaire shall remain continuously open and provide all goods and services as required by the Agreement for the concession locations beyond the then current store hours as instructed by the Board.
6.8.3 Posted Hours. The Concessionaire will prominently post store hours for a concession location at the concession location and in a format approved by the Board.
6.8.4 Failure to Maintain Posted Hours. Failing to maintain posted hours of operation, shall constitute a violation of this Section for which the Board may assess fines as further described in Section 6.24.
6.9 Badging and Security Requirements. All of Concessionaire’s personnel who work at the Airport must apply for and be issued a proper security identification badge prior to beginning work at the Airport. Concessionaire shall be responsible for ensuring Personnel, vendor and contractor compliance with all security rules, regulations and procedures including, but not limited to, those issued by the FAA, TSA, and the Board. The rules, regulations and procedures of the FAA, TSA and the Board regarding security matters may be modified during the Term and Concessionaire shall be required to comply with all modifications. Concessionaire shall pay all costs associated with obtaining the required security identification badge and security clearances for its Personnel, including, but not limited to, the costs of training and badging as established by the Board.
6.9.1 Fines for Unaccounted Badges. The Board may charge Concessionaire for each security identification badge that is lost, stolen, unaccounted for or not returned to the Board at the time of security identification badge expiration, employee termination, termination of this Agreement, or upon written request by the Board. This fine will be due within fifteen (15) days from the date of invoice in the amount identified by the Airport Security Department. The fine is subject to change without notice, and Concessionaire will be responsible for paying any increase in the fine.
6.9.2 Return. If any of Concessionaire’s Personnel is terminated or leaves Concessionaire’s employment, the Board must be notified immediately, and the security identification badge must be returned to the Board promptly.
6.9.3 Use. Concessionaire’s Personnel who are issued security identification badges shall only utilize such badges and access rights in connection with the
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operation of Concessionaire’s business as outlined herein. Concessionaire’s Personnel shall be informed by Concessionaire, in writing of this requirement and a violation of such shall be a basis for the termination of a Person’s employment if that person violates such restrictions.
6.9.4 Surveillance and Security Systems. Concessionaire is responsible for securing their premises. Tenants may install their own surveillance and security systems for security, loss prevention, and quality assurance purposes.
If such surveillance systems are installed, the Board may request access to the surveillance systems. Concessionaire should not be reasonably withholding that access.
6.10 Employee Parking. Nothing in this Agreement shall be deemed to require the Board to provide parking to Concessionaire’s Personnel. The Board may provide parking accommodations to Concessionaire’s Personnel in common with employees of other concessionaires and users of the Airport subject to the payment of reasonable charges therefor as may be established from time to time by the Board. In such event, Concessionaire’s Personnel shall be required to park within the designated areas.
6.11 Employee Uniforms and Appearance. The Board is extremely interested in with the appearance of Concessionaire employees. Concessionaire uniforms can create a sense of place, improve customer service, make for a safer workspace, and mitigate security risk. A professional appearance may comfort passengers and lead to professional attitude of the employee and increased sales. All uniforms must be approved in writing by the Board. Purses and bags used by the Personnel must be clear. The use of lanyards to hold identification badges is not allowed. Fixed clips and armbands used to hold identification badges are allowed. Employee’s hair should not be dyed colors other than those naturally occurring. Jewelry worn by employees should be limited to no more than two rings (hands), two sets of piercings (ears), and one necklace. The necklace must be simple and be a danger of getting caught on furniture and fixtures.
6.11.1 Uniforms of Assigned Employees. Any employee who is regularly assigned to a particular concept or brand shall wear the uniform of that brand or concept. The use of Concessionaire’s house uniforms will not be allowed.
6.11.2 Uniforms of Un-assigned Employees. Any employee who is assigned to provide supervision, perform janitorial services, or distribute goods may wear house uniform.
6.11.3 Employees who traverse the AOA for the purpose of distributing goods must wear reflective safety vest that clearly identify the Concessionaire.
6.12 Paging, Audio, Video Systems and Frequency Protection. If Concessionaire installs, in accordance with the Concession Design Criteria Manual, and with the Board’s approval, any type of radio transceiver or other wireless communications equipment, Concessionaire will provide frequency protection within the aviation air/ground VHF frequency band and the UHF frequency band in accordance with
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restrictions promulgated by for the vicinity of FAA Transmitter or Receiver facilities. Frequency protection will also be provided for all other frequency bands operating in the vicinity of Concessionaire’s equipment. If frequency interference occurs as a result of Concessionaire’s installation, the Board reserves the right to shut down Concessionaire’s installation until appropriate remedies to the frequency interference are made by Concessionaire. Remedies may include relocation of Concessionaire’s equipment to another site. The cost to remedy the frequency interference will be solely at Concessionaire’s expense.
6.13 Point of Sale Terminals. Concessionaire must install electronic point-of-sale terminal(s) (POS Terminals) to accurately record all transactions occurring in each concession location for accounting, reporting and auditing purposes as set forth herein.
All POS Terminals used at the Airport must have, at a minimum, the following features:
A. Multiple segregated category addresses to allow for accurate and complete reporting of Gross Receipts by various merchandise and services categories;
B. The capability of recording transactions by sequential control number to an audit tape or computer file;
C. The capability of recording any discounts that are applied to a transaction;
D. The capability of printing a transaction history to tape or computer file by product category, time of day, day, month, and year by product category;
E. The capability of printing customer receipts showing the transaction amount, the amount tendered, the amount of change due to the customer, and the time and date of the transaction. Additionally, the customer receipt must show Concessionaire’s contact information including name, phone number and email address for any customer concerns, complaints or questions;
F. A fee display of sufficient size and legibility that is placed in a location visible to the customer during a transaction; and
G. A secure transaction audit tape or ASCII (American Standard Code for Information Interchange) transaction file on a removable storage device.
H. Ability to be tie into systems allowing the Board to remotely monitor transaction data, periodic reports for each location and all locations included under this agreement.
The Board reserves the right to implement a universal point-of-sale system or other technology to work in tandem with Concessionaire’s POS Terminals. Concessionaire agrees to fully cooperate in the implementation of such a universal point-of-sale system or other technology. If the Board instructs Concessionaire to install any technology, equipment, software and systems as part of such implementation, the
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Board shall not be obligated to furnish Concessionaire with the technology, equipment, software or systems necessary to do so.
6.14 Cash Handling Requirements. Concessionaire shall at all times observe cash-handling and record-handling procedures in accordance with sound accounting and financial control practices and as necessary to provide timely and accurate reports to the Board. The Board may at any time during the Term request a copy of these procedures. The Board shall have the right to monitor and test all of Concessionaire’s procedures and controls and require Concessionaire to make changes to its procedures.
6.15 Tips and Gratuities. Concessionaires may accept tips and gratuities from patrons. Concessionaires may not verbally solicit tips or maintain “tip jars.”
6.16 Advertised Sales and Promotions. Concessionaires are required to participate in all advertised sales and promotions conducted by its parent corporation, its company, its franchisor, or its selected operating brands. Concessionaires are allowed to markup items included in nationally advertising programs by no more than ten percent (10%). Concessionaire shall make every reasonable effort to ensure that all corporate advertisements that list multiple locations include Airport location(s).
6.17 Marketing Fund. The Board shall establish a marketing fund to promote the concession businesses at the Airport. The marketing fund may include, but is not limited to, promoting and monitoring the concessions at the Airport and advertising, marketing, public relations, media production and placements, special events, brochures, videos, directories, catalogues, customer service training, secret shopper programs, and concession surveys relating to consumer satisfaction and market research, as well as the costs of administering the marketing fund.
6.17.1 Marketing Fund Contributions. During the first year of the Term, Concessionaire shall contribute three hundred thousand dollars ($50,000) to the marketing fund. In subsequent years, within fifteen (15) days of the last day of each month during the Term, Concessionaire shall deposit into the marketing fund an amount equal to one half of one percent (0.5%) of Concessionaire’s Gross Revenue from that year.
6.17.2 Administration of Marketing Fund. Concessionaire will administer the marketing fund on behalf of the Airport. Marketing funds collected may be expended as determined by mutual agreement of the Concessionaire and Board. Concessionaire has no ownership or beneficial interest whatsoever in the Marketing Fund or any unspent moneys collected under this Section.
6.18 Complaints. All customer complaints referred to Concessionaire by the Board must be responded to by Concessionaire within seventy-two (72) hours of notice. A written copy of Concessionaire’s response shall be delivered to the Board within the forty-eight hour (48) period.
6.19 Performance Audit. The Board reserves the right to conduct periodic performance audits of the Leased Premises to assure that all of the operational, safety and compliance
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standards of this Agreement are consistently performed by Concessionaire. Concessionaire acknowledges that performance audits will be conducted by the Board, or its representative, and hereby agrees to cooperate with all performance audits.
A. Performance audits may include minimum objective standards in any or all of the areas of (i) product quality; (ii) customer service; and (iii) cleanliness and maintenance. If Concessionaire fails to meet minimum standards in any of these areas, the Board may, at its discretion, assess fines as set forth in Section 6.24.
B. In order to assure consistent adherence to performance standards throughout the Term, the Board will use a rolling twelve month (12) cycle in the recording of incidents of failure to meet standards. The Board reserves the right to assess fines for violations of performance standards as set forth in Section 6.24.
C. Repeated violations and deficiencies in performance by Concessionaire may be cause, at the Board’s sole discretion, to terminate this Agreement.
6.20 Annual Review. No later than ninety (90) days after the end of the year of the Term, and the end of each year of the Term thereafter, Concessionaire and the Board will meet to review and evaluate the financial, customer service, and operational performance of each concession location. During the course of the review, the Board may determine, in its sole discretion, that the performance of one or more of the concession locations is unsatisfactory if one or more of the following occurred during the prior year:
A. Sales per enplaned passenger were less than eighty percent (80%) of the projected sales per enplaned passenger for the concession location;
B. Sales per enplaned passenger were less than eighty-five percent (85%) of sales per enplaned passenger for the same concession location during each of the two (2) preceding Contract Years;
C. Scores on any secret shopper survey(s) conducted by the Board or its representative were less than eighty percent (80%) of the maximum achievable scores for the survey(s);or
D. Scores on any operational survey(s) conducted by the Board or its representative were less than eighty percent (80%) of the maximum achievable scores for the survey(s).
6.21 Deficient Performance by Concessionaire. The Board, in its sole discretion, shall have the right to raise reasonable objections to the condition of the Leased Premises, the quality and quantity of products, merchandise and food and beverage, the character of the service, the hours of operation, and/or the appearance and performance of service personnel, and to require any such conditions or practices objectionable to the Board be promptly remedied by Concessionaire. Such objections raised by the Board shall be delivered to Concessionaire in writing and Concessionaire shall correct, or cause to be corrected, such problem or deficiencies within seven (7) days of receipt of any such objections. If Concessionaire fails to correct within seven (7) days after written notice is
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given by the Board, the Board may assess fines as described in Section 6.24.
6.22 Remediation Plan. In the event that the Board determines, based on the performance criteria specified in this Section 6, that a concession location performed unsatisfactorily during the prior Agreement Year, the Board will provide written notice to Concessionaire. Within thirty (30) days of receipt of such written notice, Concessionaire shall prepare and submit to the Authorized Representative, for its approval, a Remediation Plan, as described below, to improve the performance of the Concession Location.
The Remediation Plan shall include, but not be limited to, proposed remedial activities such as employee training, staffing changes, merchandise and service modifications, facility refurbishment and repair, and/or replacement of concept or brand. Upon approval by the Board, Concessionaire agrees to diligently implement the approved Remediation Plan and further agrees to submit to the Authorized Representative monthly reports on the progress of such implementation. If the approved Remediation Plan includes the replacement of a concept or brand, then the Board and Concessionaire will enter into good faith negotiations concerning a concept or replacement brand.
In the event the Board determines, after six (6) months of implementation of a Remediation Plan, the subject concession location is still performing in an unsatisfactory manner, the Board reserves the right to require Concessionaire to replace the underperforming concept or brand, if not already replaced by the Remediation Plan. Within ninety (90) days of receipt of written notice from the Board requiring a replacement, Concessionaire shall submit to the Authorized Representative a proposal for a brand or concept replacement plan. Such replacement plan shall include, but not be limited to, a detailed description of the brand or concept, capital expense required to re- brand, sales projections, and the specific timetable to replace the brand or concept. The Board, in its sole discretion, reserves the right to approve or deny the replacement plan and require Concessionaire to submit another replacement plan.
6.23 Failure to Comply with Performance Standards. Concessionaire acknowledges the Board’s objective to provide the public and air traveler with the level and quality of service as described herein. Accordingly, the Board has established a series of fines, as set forth in the table below, that it may assess, in its sole discretion, as liquidated damages for various violations of the provisions of this Agreement. Concessionaire and the Board agree that the fines set forth herein are reasonable, and Concessionaire further agrees to pay to the Board such fines in accordance with the rates or in the amounts specified herein upon each occurrence of the specified violation and upon written demand by the Board. The Board will, in its sole discretion, determine the classification of each fine as per day or per occurrence. Concessionaire further acknowledges that the fines are not exclusive remedies and the Board may pursue other remedies as allowed for in this Agreement and at law, in the Board’s sole discretion. The Board’s waiver of any fine provided for in this Section shall not be construed as a waiver of the violation or Concessionaire’s obligation to remedy the violation.
6.24 Fines. Except for violations of requirements regarding health and safety and delivery
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and vendor access infraction, fines for which shall accrue immediately and without notice upon violation, all other fines shall be assessed as follows:
A. For the first and second violation of a requirement during any twelve (12) month rolling year, the Board will provide notice to Concessionaire to correct the violation within the time specified in the notice.
B. For the third and subsequent violations of the same requirement during any twelve (12) month rolling year commencing upon the first notice of violation, the fine shall be immediately assessed with no grace period.
C. Further, after two (2) violations of the same requirement within any twelve (12) month rolling year, the Board reserves the right, in its sole discretion, to deem the repeated violations a breach of Agreement and to seek any other remedies available to it under this Agreement including, but not limited to, termination.
D. Said fines are considered by the parties to be stipulated damages to compensate the Board for the administrative time and expense associated with maintaining compliance with the terms of this Agreement. Said fines are not the Board’s exclusive remedy to address any non-compliance or breach of the terms of this Agreement.
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Performance Standard Fines
Infraction Fee Schedule
1. Operational Deficiencies
2. Late Pricing Survey $100 per day until corrected to the Board’s satisfaction 3. Late Reporting
4. Other Infractions
1. Health Code Violations (repeated failures of same violation)
2. Grease/Plumbing/Hazardous $500 per occurrence Substance Infraction
3. Late Opening/ Early Closing
7. RENT
7.1 Rental Obligation. As consideration for the lease of the Leased Premises granted herein, Concessionaire will pay all rental obligations as provided herein. Leased Premises Rent will be paid in monthly installments, in advance and without demand, beginning on the Rental Commencement Date and on the first day of each month thereafter throughout the Term.
7.1.1 Monthly Rental Obligation. Concessionaire’s monthly rental obligation shall be the percent (%) of its Gross Revenue as described herein.
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Rental Retail Concept/Product Description Percentage
News & Gifts units a) Reading Materials (periodicals & books) 12% b) Sundries, Packaged Snacks & Bottled/Canned Beverages 14% c) Electronics 15% d) Food and Beverage (pre-packaged sandwiches, coffee, pastries and bagels, fountain drinks, etc.) 15% e) Gifts, Souvenirs and all Other Merchandise 18%
Specialty Retail a) National brand or owner operated local concept, except electronics 12% b) Electronics Store 1. Hardware merchandise – national brand 6% 2. All other electronics merchandise 15% c) Specialty Retail – proprietary 18%
7.1.2 Minimum Annual Guarantee (“MAG”) during First Year of Term. The MAG is the Concessionaire’s annual minimum rental obligation. The MAG shall be one million, seven hundred thousand dollars ($1,700,000.00) for Package 1 and Package 2 during the first year of the Term.
7.1.3 MAG after First Year of Term. For the remainder of the Term, and for any Renewal Term, the MAG shall be calculated at eighty percent (80%) of rental amounts paid during the preceding Agreement Year.
7.2 Monthly Rental Payments. Monthly rental payments equal to one-twelfth (1/12) of the MAG shall be due and payable in advance on the first (1st) day of the month. Any excess between the actual monthly rental obligation accrued hereunder and Concessionaire’s MAG payment shall be due and payable upon invoice, but in no case earlier than the fifteenth (15th) of the following the month.
7.3 Form of Payment. All payments due under this Agreement shall be accomplished in a form acceptable to the Board.
7.4 Pro-Rata Application of Rent. For any period of less than one month during the Term, the Leased Premises Rent will be calculated on a pro rata basis in the same proportion that the number of days in the payment period bears to the total number of days in the month for which the Leased Premises rent is payable.
7.5 Abatement of Rental Obligations. The MAG shall only be abated during closure of the Leased Premises if and only if such closures is the result of: (a) the conduct of reconstruction due to casualty loss and any period preceding reconstruction during which
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Concessionaire does not have access to the Leased Premises; or (b) the Airport is closed to all air traffic for a period longer than one hundred and twenty (120) hours, then commencing upon the fourth (6th) day of such closure, the MAG shall abate until the re- opening of the Airport.
7.6 Gross Revenues
7.6.1 For purposes of calculating the monthly rental obligation, gross revenue includes:
7.6.1.1 All monies paid or payable to Concessionaire for sales made, services rendered, and customer orders fulfilled at or from the Leased Premises, regardless of when or where the customer order is placed (including outside the Leased Premises)
7.6.1.2 Any receipts, credits, rebates, allowances, internet sales or revenues of any type arising out of or in connection with Concessionaire’s or its sub-concessionaires’, sub-tenants’ or agents’ operations at the Leased Premises, including, but not limited to, branding fees, marketing fees, merchandising fees, promotional allowances, performance allowances, retail display allowances (RDA), and any other type of ancillary advertising or product placement fees, and other allowances and fees; and
7.6.1.3 Any income resulting from transactions originating in, facilitated by, at, or from the Leased Premises, and
7.6.1.4 Any deposits not refunded to customers.
7.6.2 Gross Revenue shall not include:
7.6.2.1 Any taxes imposed by law that are separately stated to and paid by a customer and directly payable to the taxing authority by Concessionaire.
7.6.2.2 Amounts and credits received from suppliers for products and merchandise returned by Concessionaire.
7.6.2.3 Cash and credit card refunds to customers for merchandise returned.
7.6.2.4 Amounts and credits received in settlement of claims for loss of, or damage to, merchandise.
7.6.2.5 Insurance proceeds received from the settlement of claims for the loss of or damages to Concessionaire’s property at or on the Leased Premises other than the proceeds from business interruption insurance.
7.6.2.6 Inter-company store transfers
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7.6.2.7 Uniforms or clothing purchased by employees where such uniforms or clothing are required to be worn by employees.
7.6.2.8 Reimbursements from Concessionaire’s sub-concessionaires for any taxes, fees, franchise or license fees, utilities or other services paid or provided by Concessionaire for or on behalf of its sub- concessionaires; provided, however, that any reimbursement in excess of the actual cost of such taxes, fees, franchise or license fees, utilities or other services shall be included in Gross Receipts.
7.6.2.9 Rental, fees, and charges paid to Concessionaire by its sub- concessionaires pursuant to the provisions of this Agreement; provided, however, that any such payment in excess of the amounts required hereunder shall be included in Gross Receipts.
7.6.2.10 Gift cards sold at the Leased Premises. However, when a gift card is redeemed or accepted as payment for a purchase at the Leased Premises, the transaction must be reported as part of Gross Receipts.
7.6.2.11 Amounts for coupons and other forms of discounts (including Airport but not limited to, employee meals, complimentary customer meals, and the Airport employee discount described in Section 7.07), such that only the amounts actually received are ultimately included in Gross Receipts.
7.6.2.12 Gratuities for services performed by employees paid by Concessionaire or by its customers except to the extent Concessionaire may be entitled to receive a portion of the gratuities.
7.7 Annual Reconciliation. At the end of each year during the Term, Concessionaire shall calculate payments due for the entire Agreement Year based on the greater of the MAG or rental payment as set forth in herein. If Concessionaire has underpaid, Concessionaire shall pay the Board the amount it has underpaid within ninety (90) days of the end of the Agreement Year. If Concessionaire has overpaid, the Board will credit Concessionaire’s future rent. Any overpayment made in the last year of the Agreement will be refunded to Concessionaire.
7.8 Interest and Late Fees. Any payment required by this Agreement that is not paid within seven (7) days of the date required herein, shall be considered delinquent. Concessionaire shall pay a penalty for late or delinquent payments during the Term of this Agreement and any extensions of eighteen percent (18%) per annum on the balance of the unpaid amount calculated from the date the amount is due until the close of the business day upon which the delinquent payment is received by the Board.
7.9 Disputed or Partial Payments. In the event of a dispute as to the amount to be paid, the Board shall accept the sum tendered without prejudice and, if a deficiency is determined to exist, interest shall apply only to the deficiency.
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The right of the Board to require payment of interest and the obligation of the Concessionaire to pay same shall be in addition to and not in lieu of the right of the Board to enforce other provisions herein, including termination of this Agreement, and to pursue other remedies provided by law.
The failure of the Board to take action in the event of a delinquent payment or series of payments shall in no way waive the right of the Board to take action at a subsequent time.
7.10 Non-Abatement. The rent and any other payment obligations shall be paid by Concessionaire without set-off, notice, deduction demand or abatement except as otherwise specifically provided herein.
8. TAXES, UTILITIES AND OTHER FEES
8.1 Taxes and Permitting Fees. Concessionaire or its sub-concessionaires or sub-tenants shall pay all taxes of whatever character, license fees, permit fees and other charges or fees which may be levied or assessed against the Leased Premises, Leasehold Improvements, operations hereunder, and upon property or leasehold interests of Concessionaire and its sub-concessionaires or sub-tenants located thereon or used in connection therewith, or which may be levied or assessed on account of the transaction of Concessionaire or its sub-concessionaries or sub-tenants’ business in, on or about the Leased Premises. Taxes and other fees may be invoiced by a third party provider and/or the Board. Concessionaire or its sub-concessionaries or sub-tenants are responsible without deduction or set-off for obtaining and paying for all licenses and permits necessary or required by law for the construction of improvements, installation of equipment and furnishings, and any other licenses or permits necessary for the conduct of its operations hereunder.
8.2 Utilities. Concessionaire or its sub-concessionaires or sub-tenants shall pay all utility charges billed for its consumption of utilities at the Premises. Concessionaire or its sub- concessionaires or sub-tenants shall be responsible for the installation and maintenance of utility metering equipment to be installed at each concession location located on the Leased Premises. In the event that concessionaire fails to properly and accurately report and meter its utility consumption, then the Board shall have the right to invoice Concessionaire an amount determined by the Board, in its sole discretion, sufficient to pay Concessionaire’s utility consumption.
8.2.1 Shared Utility Maintenance Program. The Board shall maintain the sole discretion as to whether to implement a shared utilities maintenance program. If such a program is implemented by the Board, then concessionaire shall be required to participate.
8.3 Other Costs and Fees. Concessionaire or its sub-concessionaires or sub-tenants shall be responsible for any and all other costs, fees and expenses involved in the operation of business or arising from the occupancy of use of the Leased Premises by Concessionaire or its sub-concessionaires or sub-tenants, as well as repair and maintenance costs incident
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thereto.
9. SERVICES PROVIDED BY THE BOARD
9.1 Maintenance of Terminal. The Board shall repair and maintain in good order the Airport, exclusive of the Leased Premises and any other areas of the Airport that are leased and the responsibility of any other parties. All maintenance and of the Leased Premises is Concessionaire’s responsibility.
9.2 Utilities. The Board will provide utility mains and lines throughout the Airport. Concessionaire, at its sole cost, shall tie into the utility mains and lines at the locations as specified by the Board. Supplemental heated or cooled air, electrical or other utilities required by Concessionaire in excess of what is customarily available in the Terminal Buildings will be, if approved by the Board, at the expense of Concessionaire.
9.2.1 Maintenance of Utility Lines. The Board will maintain utility lines in the Airport. Concessionaire shall maintain all utility tie-ins and utilities maintained on the Leased Premises. However, the Board or its representative may, at the Board’s sole discretion, maintain the utilities within the Leased Premises and in doing so shall be permitted to enter upon the Leased Premises at all reasonable times to make any repairs, replacements and alterations as may, in the opinion of the Board, be deemed necessary. Furthermore, Concessionaire will permit the Board or its representatives access to construct or install over, on, in, or under the Leased Premises, new systems, pipes, lines, mains, wires, conduits, ducts and equipment; provided, however, that the Board shall exercise such right in a manner that minimizes interference with Concessionaire’s operations.
9.2.2 No Liability for failure of Utilities. Concessionaire shall have no remedy against the Board for interruption of any utilities.
9.2.3 Reimbursement of Repair Costs. Any damage to or failure of the utilities caused by Concessionaire and repaired by the Board shall be reimbursed by Concessionaire for the cost thereof, plus an administrative fee of fifteen percent (15%) of any such costs.
10. OWNERSHIP OF IMPROVEMENTS AND CONSTRUCTIONS; AND AMORTIZATION SCHEDULE; BUY OUT
10.1 Ownership of Leasehold Improvements. Upon completion of the construction thereof, any furniture, fixture, structure, alteration, addition or improvement to the Leased Premises undertaken pursuant to this Agreement, whether temporary or permanent in character, excluding personal property and trade fixtures which can be removed without damage to the Leased Premises, shall immediately become part of the Leased Premises for purposes of this Agreement and shall automatically become the property of the City as owner, without compensation to Concessionaire upon the termination of this Agreement (except may be provided otherwise herein), and shall remain in place upon termination of this Agreement, unless the Board requests their removal prior to the termination or expiration of this Agreement. Concessionaire shall, to the extent requested
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by the Board, execute all documents deemed necessary as evidence of the transfer of title to any such improvements.
10.2 Amortization Schedule. Upon completion all Approved Projects and Concessionaires certification of the total amount of Concessionaire’s investment into the Leased Premises and any audit of the Projects or certification that may be performed by the Board, the parties shall agree upon a final Concessionaire Infrastructure Improvement Amortization Schedule that shall be attached hereto as Exhibit E.
10.3 Leasehold Improvement Buy-Out. The Leasehold Improvements amortization schedule shall detail all Leasehold Improvements, including those paid for with proceeds from the Refurbishment Fund, which shall be eligible for the buy-out provisions of this Section 10.3. Concessionaire shall also provide the Authorized Representative with an amended Leasehold Improvement Amortization Schedule within one hundred twenty (120) days after any subsequent Leasehold Improvements are completed from time to time during the Term. The Board's obligation to reimburse Concessionaire for unamortized value of Leasehold Improvements shall be limited to those Leasehold Improvements included on the Leasehold Improvement amortization schedule, which are hereby approved by the Board together with interest thereon at a rate equal to that paid by Concessionaire or its sub-concessionaire or sub-tenant for funds borrowed to complete Leasehold Improvements or at the then current prime rate per annum as set forth in the Wall Street Journal dated on the first business day following completion of the Leasehold Improvements (“Approved Interest"), whichever is less. Said interest will be paid from the date Leasehold Improvements are vacated until actual reimbursement is paid. On the event the Board and Concessionaire cannot agree on the inclusion of item as a Leasehold Improvement, or on the amortization period appropriate for such item, the Board and Concessionaire shall submit such disputes to an independent certified public accounting firm acceptable to both the Board and Concessionaire, and the determination of such firm shall be binding on the Board and Concessionaire. The costs associated with obtaining such independent determinations shall be split equally between the Board and Concessionaire.
11. AIRPORT CONCESSIONS/DISADVANTAGED BUSINESS ENTERPRISES (DBE) PROGRAM
11.1 DBE Policy
It is the policy of NOAB to ensure that ACDBEs as defined in 49 CFR Part 23 to create a level playing field on which ACDBEs can compete fairly for opportunities for concessions. This lease is subject to the requirements of the U.S. Department of Transportation’s regulations, 49 CFR Part 23. The Lessee agrees that it will not discriminate against any business owner because of the owner’s race, color, national origin, or sex in connection with the award of performance of any concession agreement, management contract, or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR Part 23.
The Lessee agrees to include the above statements in any subsequent concession
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agreement or contract covered by 49 CFR Part 23, that it enters and cause those businesses to similarly include the statements in further agreements.
Additionally, all tenants, contractors, subcontractors, and/or sub-recipients must take steps to ensure that all personnel are aware of and carry out the obligation to maintain a non-discriminatory work environment, free of harassment, intimidation and coercion at all work sites, offices and other facilities to which employees are assigned to work.
All tenants, contractors, subcontractors, and/or sub-recipients shall help to ensure that small businesses are not discriminated against on the basis of race, ethnicity or gender (including both ACDBE and non-ACDBE small businesses).
Lessee agrees to comply with the ACDBE program at the Airport as outlined in this Article 11. Lessee further agrees to provide Lessor with periodic reports and records as are more fully discussed below. These reports and records shall provide documented evidence that the ACDBE Participation Plan is being implemented in accordance with the provisions of this Lease. Failure to provide an ACDBE Participation Plan shall be deemed an event of default under this Lease. All capitalized terms used in this Article 11, except as defined elsewhere in this Lease, shall have the same meaning as set forth in the ACDBE Plans.
Failure by the Lessee to carry out these requirements is a material breach of this Lease, which shall result in such remedy as the NOAB deems appropriate and may include:
A. Assessing sanctions;
B. Liquidated damages;
C. Disqualifying the Lessee from future bidding as non-responsible; and
D. Termination of the Lease.
11.2 ACDBE Goals
The following ACDBE goals are established:
• ACDBE Direct Participation Goal is 35.86% of which at least 12.54% must be attained through Joint Venture participation
• ACDBE Goods & Services Goal is 20.09%
The direct participation goal can be achieved through direct ownership, joint venture participation, owner/operator agreements or sublease agreements for retail or food and beverage operations. Ownership is not a requirement of the federal regulations but the New Orleans Aviation Board values equity and inclusion at all levels of participation and strongly encourages direct ownership by ACDBE participants.
Lessee agrees that it shall demonstrate compliance with meeting the ACDBE
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participation goals in performance of this Lease. Compliance can be achieved in one of two ways:
A. The Lessee can satisfy the ACDBE goals by selecting and documenting certified, qualified ACDBE business(es) at the targeted level of ACDBE participation.
B. If the Lessee cannot meet the ACDBE goals, it must document its good faith efforts to achieve the ACDBE goal by demonstrating that requisite activities were conducted to identify, recruit and select qualified and certified ACDBEs.
11.3 Good Faith Efforts
Good faith efforts to achieve the ACDBE goals are demonstrated through documentation that that the following activities were conducted to identify, recruit and select qualified and certified ACDBEs.
A. Attending pre-bid meetings that were scheduled to inform ACDBE firms of subcontracting opportunities and/or requested a copy of the LAUCP DBE Directory.
B. Soliciting certified ACDBE firms participation through all reasonable and available means of communication (e.g., letters, telephone calls, face-to-face meetings, place notices in hardcopy and online publications, network with community organizations).
C. Providing potential ACDBE firms and vendors with adequate and timely information as to the plans and specifications of a project, as well as information necessary to provide a bid or quote.
D. Documenting that certified ACDBEs for each potential vendor, subcontracting or supply category in the contract has been contacted. Documentation must include:
1) The names, addresses, and telephone numbers of ACDBEs that were contacted, and the date(s) of contact.
2) A description of the information provided to ACDBEs regarding the plans and specifications for portions of the work to be performed.
3) A statement explaining why additional agreements with ACDBEs were not reached.
E. Selecting portions of the project to be performed by a certified ACDBE(s) in order to increase the likelihood that the ACDBE goal will be achieved. Divide the contract into economically feasible segments.
F. For each ACDBE that is contacted but rejected, providing the firm with reasons for the rejection and provide the NOAB with a copy of the documentation.
Failure to comply with the requirements of this part of the Lease is a material breach of the contract and may result in the termination of the Lease or such other remedies set
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forth in Section 15.
11.4 Administrative Reconsideration
Within 72 hours of being informed by the NOAB that a submittal has been deemed non- responsive because it has not documented good faith efforts, Concessionaire may request administrative reconsideration. Requests for administrative reconsideration should be made in writing and directed to:
Iftikhar Ahmad, Director of Aviation Louis Armstrong New Orleans International Airport
The Director of Aviation will designate the reconsideration official. The reconsideration official will not have played any role in the original determination of non-compliance.
As a part of reconsideration Concessionaire shall have the opportunity to provide written documentation or argument to support a change in the determination. Additionally, Concessionaire shall have the opportunity to meet in person with the reconsideration official to discuss the issue of whether or not compliance with ACDBE policy for good faith efforts has been achieved. The NOAB will send Concessionaire a written decision on reconsideration detailing the basis for findings of compliance or non-compliance. The result of the reconsideration process is not subject to administrative appeal to the Department of Transportation.
11.5 Removal and Substitution
Concessionaire acknowledges that only those ACDBE participants identified in Concessionaire’s proposal and certified by Lessor as of the Executed Date will be recognized by Lessor in Concessionaire’s obligation to fulfill its ACDBE participation requirements; provided, however, that said participation may be modified from time to time throughout the Lease in accordance with the ACDBE Plans, and as approved by the Board. Concessionaire further acknowledges that to be counted toward Concessionaire’s obligation to ACDBE participation under this Lease, an ACDBE participant must be and remain certified as a ACDBE during the Lease, except as said ACDBE participate is otherwise eligible to be counted in accordance with the ACDBE Plans or 49 CFR Part 23.
Concessionaire acknowledges that before an ACDBE participant can be removed or substituted, the Concessionaire must submit a written request to the DBE Liaison Officer. The Concessionaire must submit the reason for the request along with the name(s) of the replacement ACDBE firms. The DBE Liaison Officer will decide whether or not to grant the substitution and issue a written decision within ten days of receipt of the request.
The NOAB will require the Concessionaire to make good faith efforts to replace an ACDBE that is terminated or removed to the extent needed to meet the ACDBE participation goal. The Concessionaire is required to notify the DBE Liaison Officer immediately of the ACDBE’s inability or unwillingness to perform and to provide reasonable documentation. The Concessionaire is required to request, in writing, permission to substitute the ACDBE and to provide copies of new or amended
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subcontracts or documentation of good faith efforts. If the Concessionaire fails or refuses to comply with ACDBE Program policy for replacing or substituting the ACDBE, Concessionaire shall be deemed in breach of the Lease.
An ACDBE participant that is unable to perform successfully must be replaced by another ACDBE participant, if the remaining Term of the agreement makes it feasible. In the event that such action is not feasible, Lessor shall make good faith efforts during the remaining Term to encourage ACDBEs to compete for the purchases and/or leases of goods and services to be made by Concessionaire.
11.6 Reporting
A. Concessionaire must submit quarterly reports which track the dollars generated by ACDBE firms for the period covered. Quarterly reports shall be submitted via the required mechanism.
B. Concessionaire shall submit written reports, and supporting documentation as required, on a quarterly basis evidencing compliance with the ACDBE participation requirement as set forth herein. Said quarterly reports, including supporting documentation are due within twenty (20) days following the end of each quarter of each year throughout the Lease. The Board may assess a late fee of One Hundred Dollars ($100) per day for each day said quarterly report is delinquent.
C. Lessor or its designated representative shall have the right, upon written notice to Concessionaire or any sublessee, as the case may be, to audit all development and construction agreements, payments to vendors, and all correspondence related thereto. Concessionaire agrees to cooperate with any such notice and acknowledges that failure to supply requested documentation shall be deemed a breach of the Lease.
11.7 Failure to Meet Goals
In the event that Concessionaire fails to meet the contractually obligated levels of ACDBE participation and fails to undertake Good Faith Efforts sufficient to support the granting of a waiver from the contractually obligated levels of ACDBE participation, the following penalties shall be imposed upon Concessionaire:
A. With respect to ACDBE subconcessionaires, 25% of the difference between the total amount of the Gross Revenues that ACDBE Sublessees would have generated during the applicable Lease Year had there been compliance with the 35.86% ACDBE participation goal and the amount of Gross Revenues actually generated by ACDBE subconcessionaire during said Agreement Year.
B. With respect to ACDBE ownership, 25% of the difference the total ownership fees the ACDBE firms would have received for the project had there been compliance with the 12.54% ACDBE goal and the amount of the total ownership fees that were actually received by ACDBE firms for the project.
11.8 Direct Participant(s) shall ensure that each vendor and subcontractor, especially ACDBE
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and DBE firms, are paid no later than seven (7) business days from receipt invoice for payment any delay or postponement of payment from the above-referenced time frame may occur only for good cause, following written approval of the Board.
11.9 Commercially Useful Function
ACDBE participation is only counted when the ACDBE Concessionaire or vendor performs a commercially useful function.
An ACDBE performs a commercially useful function when it is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the ACDBE must also be responsible, with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself.
An ACDBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of ACDBE participation. For purposes of this part, the term commercially useful function has the same meaning as in part 26, §26.55(c), except that the requirements of §26.55(c)(3) do not apply to concessions.
11.10 ACDBE Fraud
Concessionaire acknowledges that ACDBE Fraud occurs when the Concessionaire or any Subtenant, contractor, subcontractor or sub-recipient to this Lease misrepresents who performed the work in order to increase job profit while appearing to be in compliance with goals for ACDBE participation.
The NOAB shall inform the USDOT Office of the Inspector General of any false, fraudulent, or dishonest conduct in connection with the ACDBE program so that DOT can take the necessary legal action defined in 49 CFR Section 26.109. These actions include referral to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, suspension or debarment from the program or civil penalties as deemed applicable.
11.11 Continued Non-Compliance
Continued Non-Compliance with the ACDBE participation provisions as stated in this Article shall constitute a material breach hereof, and in the event of such non-compliance, the Board shall have the right to terminate this Agreement or, at its option, assess liquidated damages in the form of fees to be paid to the Board within thirty (30) days of such assessment. For purposes of this Section, “Continued Non-Compliance” shall mean two or more written determinations of non-compliance issued by the DBE Liaison Officer and the opportunity for an Administrative Hearing.
11.12 ACDBE Participation
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Concessionaire shall review the extent of ACDBE participation before the exercise of each renewal option referenced in Section 2.4 to consider whether an increase or decrease in ACDBE participation is warranted.
12. MAINTENANCE OF LEASED PREMISES
12.1 Cleaning and Routine Maintenance. Concessionaire shall ensure that each and every concessions location is maintained and operated in a first class manner and that the Leased Premises are kept in a safe, clean, orderly and inviting condition at all times in a manner satisfactory to the Board. To comply with these requirements, Concessionaire must regularly review or cause to be reviewed the Leased Premises and its operations at the Airport.
12.1.1 Janitorial Service. Concessionaire shall, at its own cost and expense, provide all janitorial services for the Leased Premises in accordance with the Direction of the Board. Concessionaire shall ensure that the Leased Premises and the common seating areas as seen herein Section 12.4 and common areas immediately adjacent to the Leased Premises are kept clean and free from all rubbish and refuse.
12.1.2 Pest Control. Concessionaire, at its cost and expense, is responsible for pest control within the Leased Premises. Concessionaire will contract with a professional pest control service to provide pest control services on a quarterly basis and at any other times as needed. Concessionaire will coordinate its pest control service with third parties as directed by the Board. Upon request, Concessionaire must furnish the Board a copy of its pest control contract and monthly service reports.
The Board, in its sole discretion, may elect to provide or contract for pest control services on Concessionaire’s behalf. If the Board elects to provide or contract for pest control services on Concessionaire’s behalf, Concessionaire must pay its share of the cost of such services, in an amount determined by the Board. In such cases, Concessionaire must cooperate with the Board’s chosen pest control contractor.
12.1.3 Storage of Cleaning Supplies. Concessionaire shall ensure that cleaning supplies and other materials that may be hazardous are not stored in food storage, preparation, service areas, or otherwise accessible to the traveling public.
12.1.4 Preventive and Routine Cleaning and Maintenance Program. No less than thirty (30) days prior to the Rental Commencement Date, Concessionaire shall establish a preventive and routine cleaning and maintenance program for the Leased Premises. The provisions of the program shall be subject to the initial written approval, not to be unreasonably withheld, and periodic review by the Board or the Authorized Representative. Upon request by the Board or the Authorized Representative, Concessionaire shall provide the Authorized a written schedule of Concessionaire’s cleaning and maintenance program.
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12.1.5 Maintenance Personnel and Program. Concessionaire agrees to employ sufficient 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 pursuant to the maintenance requirements of this Agreement.
12.1.6 The Board Sole Judge of Cleaning and Routine Maintenance. The Board shall be the sole judge of the quality of Concessionaire’s maintenance of the Leased Premises. The Board or its representative may at any time, without notice, enter the Leased Premises to determine if maintenance satisfactory to the Board is being performed. Performance by Concessionaire of maintenance pursuant to a written maintenance plan previously approved by the Board shall be conclusive evidence of satisfactory maintenance unless the Board determines that there is a present and substantial danger or safety hazard within the Leased Premises. If the Board determines that maintenance is not satisfactory, the Board shall notify Concessionaire in writing. Concessionaire will perform the required maintenance, to the Board’s satisfaction, within fifteen (15) days after receipt of written notice or the Board or its representative shall have the right to enter upon the Leased Premises and perform the maintenance. Concessionaire agrees to promptly reimburse the Board for the cost thereof, plus an administrative fee of 15 percent (15%) of the maintenance costs.
12.2 Trash, Waste and Garbage. Concessionaire shall, at its own cost and expense, provide complete and proper arrangements for the adequate sanitary handling and prompt, reasonable disposal of all garbage caused as a result of the operation of business by Concessionaire and its sub-concessionaires sub-tenants on the Leased Premises. Concessionaire is responsible for ensuring all trash is collected and delivered to those location(s) determined by the Board. Concessionaire shall provide and use suitable covered receptacles for all trash, waste and garbage on or in connection with the Leased Premises. Concessionaire shall keep all garbage in durable, fly-rodent-and-odor proof, fireproof containers that are easily contained. The containers shall have tight-fitting lids, doors or covers and shall be kept covered when material is not being deposited in them. Concessionaire shall not permit the piling of boxes, pallets, cartons, barrels, or other similar items, in an unsightly or unsafe manner, on or about the Leased Premises, on the Board space, or within view of Public Areas. Concessionaire shall clean the containers as necessary to prevent odors.
12.2.1 Dumpster Locations. Dumpster locations will be made available on each side of the head house. The Board may require Concessionaire to relocate to dumpsters with prior notice. The Board may also provide Concessionaire with additional dumpster locations if requested. The cost of procuring and maintaining any additional dumpster shall be the responsibility of the Concessionaire.
12.2.2 Transportation of Trash, Waste and Garbage. In transporting trash, waste and garbage associated with operating the Concession to and from the Leased
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Premises, where not otherwise restricted or prohibited by this Agreement, Concessionaire shall use only carts, vehicles, or conveyances that are sealed, leak proof and equipped with wheels suitable for operating without damaging floor coverings and which are approved by the Board. Concessionaire shall not use the Airport shuttle system for the purpose of transporting trash, waste or other garbage. The Board reserves the right to require changes in Concessionaire’s transporting of trash, waste and other garbage, including permitted hours for transport, equipment used for each activity and routes of transport.
12.2.3 Plumbing Facilities. The plumbing facilities within the Leased Premises and elsewhere in the Airport shall not be used for any purpose other than for the purposes for which they were constructed, and no foreign substance of any kind shall be thrown therein. The expense to repair any breakage, stoppage, or damage resulting from a violation of this paragraph, wherever the breakage, stoppage or damage occurs, shall be charged by the Board to Concessionaire, regardless of the cause.
12.2.4 Recycle Program. If at any time during the Term, the Board establishes an Airport-wide recycling program, Concessionaire agrees to participate in any such program at its own cost.
12.2.5 Trash, Waste and Garbage Collection and Disposal by the Board. The Board reserves the right, if deemed to be in its best interests, to provide trash, waste and other garbage removal, disposal and recycling services. In the event the Board elects to provide these services on behalf of Concessionaire, Concessionaire shall pay its share of the cost of such trash, waste and other garbage removal, disposal and recycling services in an amount determined by the Board.
12.3 Grease Disposal. The Board will provide four (4) grease traps as indicated on Exhibit B, with one (1) grease trap to be located on each side of the head house and one (1) grease trap located on the side of each concourse. Concessionaire shall utilize these grease traps for disposal of grease and shall ensure that all grease is collected and properly disposed of in said grease traps.
The Board shall clean, maintain, and repair, for the benefit of Concessionaire, all grease traps and grease interceptors located along common sewer lines. Concessionaire agrees to pay to the Board Concessionaire’s share of the costs of such cleaning, maintenance, and repair, in an amount determined by the Board.
12.3.1 Storage and Transport of Grease. Grease may only be stored for pick-up in grease caddies. Grease caddies shall be maintained and kept clean at all times. Grease must not be stored in buckets, boxes, or other unapproved containers. Concessionaire shall use suitable means of transporting grease when necessary, suitable for operating on flooring without damage and immediately clean spills during transport or storage;
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12.3.2 Insurance. Any liabilities related to the improper disposal of grease or use of grease traps and interceptors shall be covered by Concessionaire’s insurance.
12.3.3 Indemnification of Waste Disposal. In addition to other indemnification obligations created by this Agreement, Concessionaire specifically agrees to fully defend, indemnify and hold harmless, the Board and the City and their respective officers, employees or agents (collectively “Indemnities”) from and against any and all losses, liabilities, fines, charges, damages, injuries, penalties, response costs, or claims or any and every kind whatsoever paid, incurred or asserted against, or threatened to be asserted against, any Indemnitee, in any way relating to or regarding, directly or indirectly, Concessionaire’s or its sub- concessionaires or sub-tenants storage, handling, transport or disposal of grease at the Airport or in any way connected to this Agreement.
12.4 Maintenance and Repairs. Except as may be otherwise provided herein or otherwise agreed to, in writing, by the Parties, Concessionaire shall, at its own cost and expense, maintain the Leased Premises and every part thereof, including all furniture, fixtures and equipment located thereon, in good appearance and repair, and in a safe, first class condition. Concessionaire shall maintain, repair, replace, paint, or otherwise finish all Leasehold Improvements on the Leased Premises, including, without limitation, walls, partitions, floors, ceilings, windows, doors, glass and all furnishings, fixtures, and equipment therein, whether installed by Concessionaire or by the Board. All of the maintenance, repairs, finishing and replacements shall be of quality equal to or better than the original in materials and workmanship. All work, including finishing colors, shall be in conformity with the Design Specifications and shall be subject to the prior written approval of the Board.
12.4.1 Failure to Comply. The Board shall provide written notice to Concessionaire of any deficient or required maintenance at the Leased Premises. If the maintenance noted in the written notice is not commenced by Concessionaire within five (5) days after receipt of notice, or if such maintenance is not completed in a reasonable time, as may be determined by the Board, then the Board or its representative shall have the right to enter upon the Leased Premises and perform the maintenance, and Concessionaire agrees to promptly reimburse the Board for the cost thereof, plus an administrative fee equal to fifteen percent (15%) of the maintenance costs.
12.4.2 Hazardous Conditions. Any hazardous or potentially hazardous condition on the Leased Premises shall be corrected immediately upon receipt of a verbal or written notice from the Board. At the sole discretion of the Board, Concessionaire shall close the Leased Premises or affected portion thereof until the hazardous or potentially hazardous condition is corrected. If Concessionaire does not immediately commence action to correct any such hazardous or potentially hazardous condition on the Leased Premises, or if such corrective measures are not completed within a reasonable time, as determined by the Board, then the Board or its representative shall have the right to enter upon the Leased Premises and perform such corrective measures, and Concessionaire
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agrees to promptly reimburse the Board for the cost thereof, plus an administrative fee equal to fifteen percent (15%) of the costs.
12.4.3 Inspection of Maintenance. The Board retains the right to inspect the Leased Premises to determine if the Leased Premises are being adequately maintained. If the Board determines that Concessionaire has not provided adequate maintenance, then the Board shall provide notice any such deficiencies to Concessionaire and Concessionaire shall correct any such deficiencies within ten (10) days of receipt of notice from the Board. If any such deficiencies cannot reasonably be corrected within ten (10) days, then Concessionaire must commence reasonable corrective action within ten (10) days and continue diligent efforts to correct any such deficiencies. Failure to take appropriate corrective action, as determined by the Board, shall give the Board the right to take such actions and charge the cost of any such corrective measures plus fifteen percent (15%) to Concessionaire.
12.4.4 Board Provided Maintenance. Concessionaire agrees to comply with all present and future laws, orders and regulations, including any rules, regulations and procedures promulgated by the Board regarding Board provided maintenance within the Airport Terminal in which the Concession Location is located. If and when any system for Board provided maintenance is put in place that can allocate to Concessionaire its proportional share of the cost. Concessionaire must pay its proportional share of the actual costs for the Board provided maintenance.
13. REFURBISHMENT
13.1 Routine Refurbishment. On or about the commencement of each Contract Year, representatives of the Board and Concessionaire shall tour the Leased Premises and jointly agree upon what, if any, routine refurbishment is required to maintain the Leased Premises in first class condition. Concessionaire shall promptly undertake such refurbishment at its sole cost and expense. If Concessionaire and the Board cannot jointly agree upon the type and extent of refurbishment, the Board may determine, in its sole discretion, the refurbishment required. For purposes of this Section, refurbishment shall mean the routine repainting or redecoration of public areas within the Leased Premises, including, but not limited to, the replacement or repair of worn carpet, tile, furniture, furnishings, fixtures or finishes.
13.2 Mid-Term Refurbishments. In addition to the ongoing, routine maintenance described in this Agreement, Concessionaire shall, at its sole cost and expense, refurbish the Leased Premises at or about the midpoint of the Term.
13.2.1 Mid-Term Refurbishments Budget. Concessionaire’s budget for the Mid-Term Refurbishments shall be equal to one percent (1%) of the Gross Revenue to date.
13.2.2 Scope of Refurbishments. The Mid-Term Refurbishments shall include without limitation all refinishing, repair, replacement, redecorating, repainting and re-
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flooring necessary to keep the Leased Premises in first class condition and shall comply with all other terms and conditions of this Agreement. The scope and extent of the Mid-Term Refurbishment for each concession location shall be jointly determined by the Board and Concessionaire. If Concessionaire and the Board cannot jointly agree upon the necessary scope and extent of the Mid-Term Refurbishment for any particular concession location, the Board may, at its sole discretion, determine the refurbishment required and Concessionaire agrees to be bound by the Board’s determination.
13.2.3 Approval of Plans for Mid-Term Refurbishments. Concessionaire’s plans and specifications for refurbishment must be in accordance with the Design Standards. Concessionaire shall submit its plan specifications for refurbishment to the Authorized Representative for review and approval no later than the mid- point of the fifth full Agreement Year following the Rental Commencement Date. The Mid-Term Refurbishment shall be completed prior to the midpoint of the sixth full Agreement Year following the Rental Commencement Date.
14. INDEMNIFICATION AND INSURANCE
14.1 Indemnification. To the fullest extent permitted by law, Concessionaire will indemnify, defend, and hold harmless the Board and the City, their respective agents, employees, officials, insurers, self-insurance funds, and assigns (collectively, the “Indemnified Parties”) from and against any and all claims, demands, suits, and judgments of sums of money accruing against the Indemnified Parties: for loss of life or injury or damage to persons or property arising from or relating to any act or omission o\ the operation of Concessionaire, its agents or employees while engaged in or in connection with the discharge or performance of any Services under this Agreement; and for any and all claims and/or liens for labor, services, or materials furnished to Concessionaire in connection with the performance of work under this Agreement.
14.1.1 Limitation. Concessionaire's indemnity does not extend to any loss arising from the gross negligence or willful misconduct of any of the Indemnified Parties, provided that neither Concessionaire nor any of its agents or employees contributed to such gross negligence or willful misconduct.
14.1.2 Independent Duty. Concessionaire has an immediate and independent obligation to, at the Board’s or City's option: (a) defend the Board and City from or (b) reimburse the Board and the City for its costs incurred in the defense of any claim that actually or potentially falls within this indemnity, even if: (1) the allegations are or may be groundless, false, or fraudulent; or (2) Concessionaire is ultimately absolved from liability.
14.1.3 Expenses. Notwithstanding any provision to the contrary, Concessionaire shall bear the expenses including, but not limited to, the Board’s and City's reasonable attorney fees and expenses, incurred by the Board and the City in enforcing this indemnity.
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14.2 Required Insurance. Concessionaire shall, at its own cost and expense, maintain the following insurance coverages throughout the Term. Such insurance policies must be issued by companies licensed to conduct business in the State of Louisiana and maintain a current A.M. Best Key Rating of at least A. Prior to the Execution Date, Concessionaire shall produce to the Board certificates of insurance evidencing the coverages required herein and listing the Board and the City as additional insureds. Concessionaire shall require any sub-contractors, sub-concessionaires and sub-tenants to comply with the provisions of this Section.
14.2.1 Commercial General Liability. Concessionaire shall maintain CGL coverage covering all operations pursuant to this Agreement performed by Concessionaire, or on its behalf, in the following amounts (inclusive of any amounts provided by an umbrella or excess policy):
General Aggregate: $2,000,000
Each Occurrence: $1,000,000
Personal Injury: $1,000,000
If alcoholic beverages are served and sold by Concessionaire, then CGL coverage shall include Liquor Liability Coverage.
14.2.2 Workers’ Compensation and Employer's Liability Insurance. Concessionaire shall maintain Workers’ Compensation and Employer’s Liability Insurance with the following policy limits (inclusive of any amount provided by umbrella or excess):
Workers’ Compensation: Statutory Limits
Employer’s Liability:
• Each Accident: $1,000,000
• Disease (policy limit): $1,000,000
• Disease (each employee): $1,000,000
14.2.3 Business Auto Liability Insurance. Concessionaire shall maintain Business Auto Liability coverage for all owned, hired and non-owned vehicles with the following policy limits (inclusive of any amounts provided by an umbrella or excess policy):
Each Occurrence (both bodily injury and property damage): $1,000,000
In the event Concessionaire operates vehicles on the airport operations area (AOA) used or intended to be used for aircraft landings, the minimum limits of
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Business Automobile Liability insurance (inclusive of any amounts provided by an umbrella or excess policy) covering all owned, hired, and non-owned vehicles are:
Each Occurrence (both bodily injury and property damage): $5,000,000
14.2.4 Property Insurance. Concessionaire shall maintain Property Insurance covering all forms of risk on all tenant improvements and any other interests of Concessionaire, including inventory, supplies, and other property of Concessionaire located on the Leased Premises, insuring against perils typically covered by property insurance including, but not limited to, fire, lightning, extended coverage, vandalism, malicious mischief, glass breakage, sprinkler, Named Storm and terrorism in an amount equal to the full replacement value of tenant improvements and any other interests of Concessionaire in or about said Leased Premises.
14.2.5 Business Interruption Insurance. Concessionaire shall maintain Business Interruption insurance in an amount sufficient to compensate Concessionaire for the direct or indirect loss of earnings under this Agreement and attributable to the perils commonly covered by the Concessionaire’s property insurance described in Section 14.2.4, which shall include losses arising from mechanical or utility failures on or interruption of services to the Leased Premises.
14.2.6 Commercial Crime Insurance. Concessionaire shall maintain Commercial Crime insurance covering including, but not limited to, loss arising from employee theft, employee dishonesty, forgery or alteration, robbery, burglary, embezzlement, disappearance, destruction; money orders and counterfeit currency; depositors forgery; computer fraud, on-Leased Premises and in-transit:
Each Occurrence: $1,000,000
14.3 Insurance Policies. The insurance policies herein required shall contain or be endorsed to contain the following provisions:
A. Workers' Compensation coverage shall contain an express waiver of all rights against the City and Board, its elected and appointed officials, officers, agents, directors, volunteers, and employees, for losses arising from the services performed by the Concessionaire for the City and the Lessor.
B. The City and Lessor and their respective officers, officials, and employees are to be added as additional insured with respect to (i) liability arising out of activities performed by or on behalf of the Concessionaire; ( ii) products and completed operations of the Concessionaire, and (iii) the insurance obtained by Concessionaire insuring the Leased Premises against casualty losses. The coverage shall contain no special limitations on the scope of protection afforded the additional insured.
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C. Certificates of insurance acceptable to the Board and the City shall be provided to prior to commencement of the Agreement. The insurance carrier shall agree to endorse the policy to provide 30 days prior written notice of cancellation/non-renewal except 10 days for non-payment. Company endorsements shall be provided with the certificate of insurance.
All insurance required by this Section shall be placed with insurers that are licensed and authorized to do business in the State of Louisiana and have a rating of no less than A-VI in the most current edition of the A.M. Best Insurance Report, AAA in Moody's, and AAA in Standard and Poor’s. The providing of any insurance required herein does not relieve the Concessionaire of any of the responsibilities or obligations for which the Concessionaire may be liable by law, lease or otherwise. The Concessionaire’s failure to provide and maintain such insurance in force as required above shall materially breach the Agreement and, at the City and /or Board’s option, occasion an immediate cancellation for cause thereof. The Concessionaire and any subcontractors shall comply with all laws relating to immigration and naturalization; failure to comply shall constitute an event of default under the Agreement.
In the event Concessionaire does not have the required certificate(s) of insurance evidencing the proper insurance coverage, or the required insurance coverage lapses, this Agreement shall be immediately terminated at the discretion of the Director. Any policy endorsement should be attached to the certificate(s). Concessionaire must require Concessionaires contractors or sub-contractors, and other persons doing business with or for the concessionaire maintain at least the insurance as required above or the liability for said contractors or sub-contractors, and other persons doing business with or for the concessionaire shall be covered by the Concessionaire.
14.4 Amendment of Insurance Requirements. The Board shall have the discretion to review, modify, reject, or accept any required policies of insurance, including limits, coverage, or endorsements, herein from time to time throughout the life of this contract.
15. TERMINATION AND DEFAULT
15.1 Termination at End of Term. This Agreement shall terminate at the end of the Term and Concessionaire shall have no right or interest in the Premises.
15.2 Termination by Concessionaire. If Concessionaire is not in default of any of its obligations under this Agreement and if any of the following events occurs, then Concessionaire may terminate this Agreement prior to the end of the Term by giving the Authorized Representative sixty (60) days written notice:
A. The FAA or any other governmental agency takes action that prevents Concessionaire from construction or operation on the Leased Premises for a period of at least ninety (90) days.
B. The abandonment of the terminal as an air terminal.
C. If the Airport is destroyed and cannot be restored.
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D. Any action by any governmental agency or court order which prevents Concessionaire from operating the Leased Premises for a period of at least ninety (90) days and which does not result from an action or inaction of Concessionaire.
E. If the Board takes or relocates more than fifty percent (50%) of the Leased Premises and suitable replacement Premises are not available.
F. Any failure by the Board to keep, perform, and observe any material promise, covenant or other provision of this Agreement for a period of ninety (90) days after written notice specifying such failure and requesting that it be remedied is given to the Authorized Representative by Concessionaire; provided, however, that any such failure which can be cured, but which cannot with due diligence be cured within such ninety (90) day period, shall not give rise to Concessionaire’s right to terminate this Agreement if corrective action is instituted by the Board within thirty (30) days and is diligently pursued until the failure is corrected.
15.2.1 Limited Liability. If Concessionaire exercises its right to cancel this Agreement as provided for in Section 15.2 of this Agreement, then the damages to Concessionaire shall be limited to payment for unpaid amortized improvements.
15.3 Termination by the Board
15.3.1 Events of Default. The occurrence of any of the following shall constitute an Event of Default:
A. The failure to substantially complete improvements in accordance with the approved Plans and Specifications relating thereto and open the Premises for business within thirty (30) days after the scheduled date for completion and opening for business, subject to events beyond Concessionaire’s control.
B. The failure to pay all installments of rent when due (with interest), under Section 7.1 hereof, and such failure is not cured within five (5) days after written notice to Concessionaire that such rent is overdue.
C. If: (1) Concessionaire becomes insolvent, as such term is defined in the Bankruptcy Code; or shall fail to pay its debts generally as they mature; or (2) Concessionaire seeks the benefit of any present or future federal or state insolvency statute; or (3) Concessionaire makes a general assignment for the benefit of creditors, or files a voluntary petition in bankruptcy or a petition or answer seeking an arrangement of its indebtedness under the Bankruptcy Code or under any other law or statute of the United States or of any State thereof, or consent to the appointment of a receiver, trustee, custodian, liquidator, or other similar official, of all or substantially all of its property; or (4) an order for relief is entered by or against Concessionaire under any chapter of the Bankruptcy Code.
D. By order or decree of a court, Concessionaire is adjudged a debtor or bankrupt or an order shall be made approving a petition filed by any of its creditors or
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by any of its stockholders, seeking its reorganization or the readjustment of its indebtedness under the Bankruptcy Code or under any other law or statute of the United States or any State hereof and such order or decree shall not be stayed or vacated within sixty (60) days of its issuance.
E. A petition under any chapter of the Bankruptcy Code or any action under any federal or state insolvency law or statute is filed against Concessionaire and shall not be dismissed or stayed within sixty (60) days after the filing thereof.
F. By or pursuant to, or under authority of any legislative act, resolution, or rule, or any order or decree of any court or governmental board, agency, or officer, a receiver, trustee, custodian, liquidator, or other similar official takes possession or control of all or substantially all of the property of Concessionaire and such possession or control shall continue in for a period of sixty (60) days.
G. Concessionaire becomes a partnership in dissolution and not reinstated within thirty (30) days after notice thereof.
H. The letting, license, or other interest of or rights of Concessionaire hereunder shall be transferred to, pass to, or devolve upon, by operation of law or otherwise, any other person, firm, corporation, or other entity, by, in connection with, or as a result of any bankruptcy, insolvency, trusteeship, liquidation, or other proceedings or occurrences described in this Section 15.3
I. Concessionaire becomes a merged corporation or partnership in a merger or a constituent corporation or partnership in a consolidation, without the prior written approval of the Board.
J. A lien which exceeds ten thousand dollars ($10,000), or liens which in the aggregate sum exceed twenty-five thousand dollars ($25,000), shall be filed against the Premises of any portion thereof because of any act or omission of Concessionaire or its sub-concessionaire or sub-tenants, and shall not be discharged within thirty (30) days after receipt of notice or other knowledge thereof by Concessionaire, unless Concessionaire shall within the aforesaid thirty (30) days after receipt of notice or other knowledge thereof by Concessionaire furnish to the Board security acceptable to the Board in the amount of one hundred fifty percent (150%) of such lien or liens to protect the interests of the Board.
K. Except as otherwise provided in this Section, Concessionaire fails to keep, perform, and observe any material promise, covenant or other provision of this Agreement for a period of thirty (30) days after written notice from the Board to Concessionaire specifying such failure, requesting that it be remedied and stating the Board’s intention to terminate Concessionaire's rights hereunder if the failure is not remedied; provided, however, that any such failure which can be remedied, but which cannot with due diligence be
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remedied within such thirty (30) day period, shall not give rise to the Board’s right to terminate this Agreement if corrective action is instituted by Concessionaire within the applicable period and diligently pursued until the failure is remedied and only if the failure can be remedied within a reasonable time.
L. Failure to make Good Faith Efforts to comply with the ACDBE requirements and obligations as are outlined in this Agreement.
M. The Leased Premises or any material part thereof are abandoned or Concessionaire fails to be open to the public and operated on the days and hours required by the Board for reasons within Concessionaire’s control and such failure is not cured within three (3) days of receipt of notice from the Board.
N. Any voluntary or involuntary sale, assignment, transfer, conveyance, pledge or encumbrance of any of the outstanding voting shares of Concessionaire, or the sale or creation of any additional shares in Concessionaire which does not conform to the terms of this Agreement.
15.3.2 Remedies for Board arising from an Event of Default. Upon the occurrence of an Event of Default, the Board may:
A. Terminate this Agreement without discharging any of Concessionaire’s obligations hereunder and exclude Concessionaire from the Leased Premises;
B. Without terminating this Agreement, exclude Concessionaire from the Leased Premises and use its best efforts to lease Leased Premises to another tenant for the account of Concessionaire, holding Concessionaire liable for all rentals and other payments due hereunder up to the effective date of such leasing and for the excess, if any, of the rentals and other amounts payable by Concessionaire under this Agreement for the remainder of the Term of this Agreement over the rentals and other amounts which are paid by such new tenant under such new agreement;
C. Without terminating the Agreement, collect all rentals and concession fees due from any sub-concessionaires or sub-tenants under sub-leases or sub- contracts. Concessionaire hereby assigns, effective upon an event of default, to the Board all rent and concession fees due from any sub-concessionaires or sub-tenants for such purpose, and hereby authorizes all any sub- concessionaires or sub-tenants to pay such sums directly to the Board. Concessionaire shall remain liable for the difference between all rentals and other payments due hereunder and the rentals and other amounts collected from such any sub-concessionaires or sub-tenants; and
D. Terminate this Agreement, in which event the Board may repossess the Leased Premises and be entitled to recover, in addition to any sums or damages for which Concessionaire may be liable to the Board, as damages a
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sum of money equal to the excess of the value of the rent to be paid by Concessionaire for the balance of the Term over the fair market value (as assessed by an independent appraisal) of the leasehold improvements in the Premises, after deduction of all anticipated expenses of reletting, for such period. Should the fair market value of the Leasehold Improvements in the Premises for the balance of the Term exceed the value of the rent provided to be paid by Concessionaire for the balance of the Term, the Board shall have no obligation to pay to Concessionaire the excess or any part thereof or to credit such excess against any other damages other than for rentals for which Concessionaire may be liable.
E. The Board shall have no obligation to pay Concessionaire any amounts in the event of a termination of this Agreement due to an event of default.
15.3.3 Stipulated Damages for Failure to Operate Premises. Concessionaire acknowledges that its obligation to continuously and actively conduct business in the Premises in the manner prescribed in this Agreement is for the purpose of enhancing the business activity and public patronage of retail concessions in the Terminal Building in order to produce the maximum Gross Revenue and concessions revenue from its Concessions Locations on the Leased Premises. Concessionaire further acknowledges that failure on its part to comply with such provisions of this Agreement would cause the Board substantial damages which might be difficult or impossible to prove or quantify. Accordingly, the Parties have agreed that, subject to Force Majeure or other causes beyond Concessionaire’s control, if Concessionaire fails to continuously and actively operate any portion of the Leased Premises as provided herein throughout the Term, without curing such failure to operate within seven (7) days after notice from the Board, then the Board shall not be required to prove its actual damages for such breach, but in lieu thereof, Concessionaire shall pay the Board the stipulated damages provided in this paragraph. Said stipulated damages for each portion or location of the Leased Premises that is not being used to continually and actively conduct business in a manner prescribed by this Agreement shall be an additional monthly rent equal to the greater of (1) $10,000.00 per day, as escalated from time to time by increases in the Consumer Price Index or (2) the average monthly rental rate for the vacant or unused space generated by said space during the 12-month period that immediately preceded said vacancy. Such stipulated damage payments shall continue from the date of breach until such breach is cured or until the end of the Term whichever is first. Said stipulated damages shall be paid monthly, concurrently with the monthly payments of the MAG reserved under this Agreement. Nothing in this Section shall be construed as a limitation upon the Board's right to obtain specific performance of Concessionaire’s obligations to conduct business continuously in the manner herein specified or to recover any other provable monetary damages or to pursue any other remedies as provided in this Agreement. The Board shall have the discretion to waive the enforcement of this Section against Concessionaire.
15.3.4 Non-Exclusive Remedies. The remedies set forth in this Section 15.4 shall be in
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addition to all other remedies which are or may be available to the Board at law or in equity. No termination of this Agreement or the taking or recovering of the Leased Premises shall deprive the Board of any of its remedies or actions against Concessionaire for rentals due for damages or for the breach of any covenant herein contained, nor shall the bringing of any action for rentals due or breach of any covenant, or the resort to any other remedy herein provided for the recovery of rentals due be construed as a waiver of the right to obtain possession of the Leased Premises.
15.3.5 Agreement to Pay Attorneys’ Fees and Expenses. In the event Concessionaire defaults under this Agreement and the Board employs attorneys or incurs other expenses for the collection of rentals or any other amounts due hereunder, or for the enforcement of performance or observance of any obligation or agreement on the part of Concessionaire herein contained, Concessionaire shall, on demand, pay to the Board the reasonable fees and expenses of such attorneys and such other reasonable expenses so incurred by the Board.
15.3.6 Non-Waiver. A failure by either party to take any action with respect to any default or violation of any of the terms, covenants, or conditions of this Agreement shall not in any respect limit, prejudice, diminish, or constitute a waiver of any rights of such party to act with respect to any subsequent violation or default or with respect to any continuation or repetition of the original violation or default. The acceptance by the Board of payment for any period or periods after a default or violation of any of the terms, conditions, and covenants of this Agreement shall not constitute a waiver or diminution of, nor create any limitation upon any right of the Board pursuant to this Agreement to terminate this Agreement for subsequent violation or default, or for continuation or repetition of the original violation or default.
15.3.7 Condemnation. If the Airport or any portion thereof shall be taken or condemned by any competent authority for any public or quasi-public use or purpose and such taking makes it necessary or desirable to remodel or reconstruct the Airport, the Board shall have the right, exercisable at its reasonable discretion, to cancel this Agreement upon not less than ninety (90) days notice prior to the date of cancellation designated in the notice. No money or other consideration shall be payable by the Board to Concessionaire for the right of cancellation and Concessionaire shall have no right to share in the condemnation award or in any judgment for the damages caused by such taking or change in configuration, except that Concessionaire may assert a separate claim for the unamortized construction costs for any Infrastructure Improvements and Leasehold Improvements. If a condemnation adversely affects any portion of the Leased Premises, an equitable adjustment to the Rent and MAG will be negotiated.
15.4 Rights and Obligations Upon Termination. Upon termination at the end of the Term, Concessionaire shall surrender the Leased Premises to the Board peaceably, quietly and in as good order and condition as the same now are or may be hereafter improved by
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Concessionaire or the Board, reasonable use and wear thereof and damage by casualty, which damage Concessionaire did not cause and is not required to repair or restore, excepted. Concessionaire shall also provide to the Authorized Representative any and all keys to doors, window displays or any area of controlled access within the footprint of the Leased Premises. The Board shall be entitled to exercise the non-judicial remedy of locking Concessionaire out of the Leased Premises as a means of enforcing the Board’s right of possession, regardless of whether Concessionaire is delinquent in rental payments, including without limitation the deactivation of Concessionaire’s security badges or credentials; and this right of de-activation shall not, and legally cannot, limit or otherwise affect the Board’s governmental police powers to de-activate security credentials for security or other governmental reasons.
Upon expiration or termination of this Agreement, Concessionaire shall, subject to the Board’s Lien described in Section 10.1, remove all furniture, fixtures not owned by the Board pursuant to Section 15 herein and/or personal property or inventory of Concessionaire, and leave the Leased Premises in clean condition. Any expenses of the Board to clean the Leased Premises shall be reimbursed by Concessionaire. Any damage to the Leased Premises caused by Concessionaire’s removal of such furniture, fixtures, equipment or property shall be immediately repaired by Concessionaire at Concessionaire’s expense and to the satisfaction of the Board. Notwithstanding the foregoing, if Concessionaire fails to remove such furniture, fixtures, equipment or property within ten (10) days from the date of termination of this Agreement, then Concessionaire shall be deemed to have abandoned same and the Board shall have the right, at its option, and in its sole discretion, to take title to said furniture, fixtures, equipment and/or property and sell, contract, salvage, or dispose of the same in any manner permitted by law. Concessionaire shall have no right, interest or claim in or to any proceeds of the sale or other disposition of such items. Any net expense the Board incurs in disposing of such items shall be immediately reimbursed by Concessionaire. No act by the Board shall be deemed an acceptance of a surrender of the Leased Premises. No acceptance of a surrender of the Leased Premises shall be valid unless it is in writing and signed by the Board.
15.5 End of Term Transition. During the final Contract Year, the Board plans to award and transition to a new contract for food and beverage services that may include rights to the Leased Premises or portions thereof. If Concessionaire is not selected for the new contract, the Board will notify Concessionaire in writing of the exact dates of a transition period. Concessionaire will cooperate fully with the Board and Concessionaire’s successor to ensure an effective and efficient transition of the Leased Premises and concession operations to the successor. Concessionaire acknowledges its responsibility to continuously perform the Concession in a first class manner during the transition to the successor.
16. DAMAGE TO LEASED PREMISES
16.1 Damages Caused by Concessionaire. All damage to the Leased Premises and the Airport caused by Concessionaire or sub-concessionaires or sub-tenants, or their invitees, agents, or employees, resulting from any cause shall be repaired, restored, or replaced
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promptly by Concessionaire, at its cost and expense, within fifteen (15) days to the satisfaction of the Board which shall be provided in writing and not unreasonably withheld or delayed. No rent shall abate if damage resulted from any act of Concessionaire or its invitees, agents or employees. If such repairs are not made within fifteen (15) days of the notification of the damage, then the Board shall have the right, but not the obligation, to make such repairs and Concessionaire shall be obligated to reimburse the Board the cost of such repairs plus an administrative fee equal to fifteen percent (15%) of any such costs, plus additional interest at the rate of eighteen percent (18%) per year, accruing beginning on the date such expenses are incurred.
16.2 Complete Destruction. If the Leased Premises are completely destroyed due to the negligent or willful act or omission of Concessionaire , its sub-concessionaires or sub- tenants, or their invitees, agents, or employees, then the rent shall not abate and the Board may, in its discretion, require Concessionaire to repair and reconstruct the Leased Premises within twelve (12) months of such destruction and pay the costs therefor; or, should Concessionaire refuse to reconstruct or make repairs, the Board may repair and reconstruct the Leased Premises within twelve (12) months of such destruction and Concessionaire shall be responsible for reimbursing the costs and expenses of the repair of the Leased Premises plus fifteen percent (15%) of the total costs and expenses, plus additional interest at the rate of eighteen percent (18%) per year, accruing beginning on the date such expenses are incurred.
16.3 Damages Caused by the Board. If the Board or its employees or agents damage the Leased Premises through their gross negligence or intentional act, then Board will be solely responsible for the repairs.
16.4 Abatement of Rent. If the Leased Premises is damaged through no fault of Concessionaire, its sub-concessionaires or sub-tenants, or their invitees, agents, or employees which renders the Leased Premises unusable, then rent and all other charges shall be abated on a per day pro-rated basis during the time the Leased Premises are unusable.
16.5 Application of Insurance Proceeds. Whenever the Board repairs the damage, proceeds of Concessionaire’s and the Board’s property insurance on the Leased Premises and Improvements shall be applied to the cost of the repairs and replacement of the Leased Premises and Improvements. Concessionaire is responsible for payment of all repair and replacement costs and expenses exceeding insurance proceeds for all non-structural portions of the Leased Premises, and for all structural portions of the Leased Premises only in the event the damage resulted from Concessionaire’s negligent or intentional act or omission. Nothing herein shall be considered a waiver of any claim or cause of action against Concessionaire. If the Board is not required to and elects not to repair the Leased Premises, the proceeds of all applicable insurance shall be paid to the Board or Concessionaire as their interest appear. The Board is entitled to all insurance proceeds attributable to structural portions of the Leased Premises and all Improvements funded by the Board in any portion.
16.6 No Liability. The Board shall not be liable or responsible to Concessionaire for any
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damage or destruction to Concessionaire's property from any cause whatsoever.
17. WARRANTY OR REPRESENTATION OF LEASED PREMISES
17.1 No Warranty or Representations. The Board makes no warranties or representations, either expressed or implied, whatsoever regarding the Leased Premises. Without limiting the declaration contained in the immediately preceding sentence, the Board makes no warranties or representations, either expressed or implied, as to the Leased Premises’ fitness or suitability for a particular purpose, as to the environmental condition of the Leased Premises, as to redhibitory defects, or as to vices or defects of whatever kind or nature, and whether known, unknown, latent or hidden, as to the Leased Premises, and disclaims all responsibilities, liabilities, and obligations that are or may be imposed on the Board or City by Louisiana Civil Code Articles 2696 through 2702, inclusive, or otherwise. Concessionaire affirms that it has had full opportunity to examine and to inspect the Leased Premises. Concessionaire accepts the Leased Premises in an “as is, where is” condition. On behalf of Concessionaire and its officers, managers, members, directors, stockholders, employees, successors, assigns, and representatives:
A. Concessionaire hereby waives, to the fullest extent allowed under Louisiana Civil Code Article 2699 and otherwise under Louisiana law, any and all of Concessionaire’s rights and remedies against the City and the Board relating to the Leased Premises (including without limitation all of Concessionaire’s rights and remedies under Louisiana Civil Code Articles 2696 through 2702, inclusive); and
B. Concessionaire hereby relieves and releases:
1) The Board, City and all prior owners of the Leased Premises;
2) All entities controlled in whole or in part by the Board and the City; and
3) The Board and the City, and said prior owners’ respective officials, officers, directors, commissioners, members, employees, contractors, subcontractors, representatives, attorneys, agents, affiliates, agencies, successors, and assigns; from any and all claims, losses, causes of action, rights of action, damages, expenses (including without limitation reasonable attorney’s fees) and costs (collectively “Claims”) for vices or defects (whether known, unknown, latent, or hidden) of, for peaceful possession of, or otherwise relating to, the Leased Premises, including without limitation any and all Claims based on environmental conditions; any and all Claims based on any one or more of Louisiana Civil Code Articles 2696 through 2702, inclusive; any and all Claims (if any) for redhibition pursuant to Louisiana Civil Code Articles 2520 et seq.; and any and all Claims based on Concessionaire’s inability to obtain any and all applicable permits, approvals or other authorizations from any governmental entities, units or agencies.
18. ENVIRONMENTAL
18.1 Knowledge of Applicable Laws. Concessionaire is knowledgeable of all applicable
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federal, state, and local environmental laws, ordinances, rules, regulations, and orders (“Environmental Laws”), which apply to Concessionaire operations at the Premises and acknowledges that such Environmental Laws change from time-to-time and Concessionaire agrees to keep informed of any such future changes.
18.2 Compliance with Law. Concessionaire shall, at all times, comply with all applicable Environmental Laws and obtain, and comply with, all necessary government permits or other approvals required by Environmental Laws. Concessionaire shall also ensure that its agents, representatives, contractors, sub-concessionaires and sub-tenants comply with applicable Environmental Laws and permits.
For purposes of this Section, “Environmental Law” means any common law or duty, case law or ruling, statute, rule, regulation, law, ordinance or code whether local, state or federal, that regulated, creates standards for or imposes liability or standards of conduct concerning any element, compound, pollutant, contaminant, or toxic or hazardous substance material or waste, or any mixture thereof or relates in an way to emissions or releases into the environment or ambient environmental conditions, or conduct affecting such matters.
18.3 Hazardous Substances. Concessionaire shall not use, store or house any petroleum fuels, highly flammable or Hazardous Materials on the Leased Premises. For purpose of this Section, the term “Hazardous Materials” means and includes the following: Any hazardous substance as defined in any Environmental Law, including any “Hazardous Waste” or “Hazardous Substance” as defined by CERCLA and the Louisiana Hazardous Waste Control Law, La R.S. 30:2171 et seq. and chemicals subject to the OSHA Hazard Communication Standard. 29 CFR Section 1910.1200 et seq.
18.4 Environmentally Regulated Substances. For purposes of this Section, “Environmentally Regulated Substances” means any element, compound, pollutant, contaminant, toxic, or other hazardous substance, material or was, or any mixture thereof, designated, referenced, regulated or identified pursuant to any Environmental Law and shall specifically include grease.
18.5 Indemnification for Environmental Liabilities. Concessionaire shall fully defend, indemnify and hold harmless, the Board and the City and their respective officers, employees or agents (collectively “Indemnities”) from and against any and all losses, liabilities, fines, charges, damages, injuries, penalties, response costs, or claims or any and every kind whatsoever paid, incurred or asserted against, or threatened to be asserted against, any Indemnitee, in any way relating to or regarding, directly or indirectly, Environmentally Regulated Substances or Environmental Laws, including all related claims or causes of action at common law or in equity which arise from or relate to the Leased Premises (hereinafter “Environmental Claims”); such matters will include without limitation: (i) all consequential damages; (ii) the costs of any investigation, study, removal, response or remedial action, as well as the preparation or implementation of any monitoring, closure or other required plan or response action; and (iii) all reasonable costs and expenses incurred by any Indemnitee in connection with such matters including, but not limited to, attorney’s fees and reasonable fees for professional services
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or firefighting or pollution control equipment related to spills. Concessionaire further agrees to defend, protect, indemnify and hold harmless any Indemnitee for any such matters arising out of or relating to Sections C. and E. below. Such indemnification and Concessionaire’s obligations hereunder, shall survive cancellation, termination, or expiration of the Term of this Agreement.
18.6 Notification. Concessionaire shall immediately notify the Authorized Representative in writing of any other matter that might give rise to an Environmental Claim, or if Concessionaire obtains knowledge of any release, threatened release, discharge, disposal or emission of any Environmentally Regulated Substance in, on, under or around the Leased Premises which are not in full and complete compliance with all Environmental Laws. Concessionaire shall promptly follow the notification procedures outlined in the MSP Integrated Spill Response and Coordination Plan (“Integrated Plan”) regarding any spills that occur on the Airport.
18.7 Right to Take Action. The Board shall have the right, but not the obligation or duty, to join or participate in, including if it so elects as a formal party, any legal or administrative or equitable proceedings or actions initiated by any person or entity in connection with any Environmentally Regulated Substance, Environmental Law, Environmental Claim pertaining to Concessionaire’s operation at the Airport, or if Concessionaire is not fulfilling its obligations under Section B. above, and in such case to have its reasonable attorneys’ fees and costs incurred in connection therewith paid by Concessionaire.
18.8 Right to Investigate. The Board shall have the right, but not the obligation or duty, anytime from and after the date of this Agreement, to investigate, study and test to determine whether Environmentally Regulated Substances are located in, on or under the Airport, or were emitted or released therefrom, which are not in compliance with Environmental Laws. Upon the reasonable request, Concessionaire shall provide to the Authorized Representative a list of any and all Environmentally Regulated Substances used in, on or under the Airport, certified as true and correct, and specifying how such Environmentally Regulated Substances are used, stored, treated, or disposed.
18.9 Environmental Responsibility. Spill Coordination and Responsibility. Concessionaire agrees to implement Integrated Plan. Tenant is obligated to ensure that it has adequate resources to respond to a discharge, including retaining a discharge recovery contractor and providing the necessary equipment to respond to a discharge, in accordance with the Integrated Plan.
If the Board incurs costs related to a spill or other environmental expenses related to fuel or hazardous and/or non-hazardous substances as a result of related to Tenant’s operations, or unless due to the gross negligence of the Board, the Board will bill Tenant for all the Board’s actual costs, plus a fifteen percent (15%) administrative fee. Tenant shall pay the Board within thirty (30) days of Tenant’s receipt of the invoice. Tenant may then determine which Tenant, Tenant Agent, Tenant Clientele or other party, is responsible for such costs.
19. ASSIGNMENT AND SUBLETTING
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19.1 Mortgage. Concessionaire shall not be allowed to mortgage, to grant a security interest in, to assign for security or collateral purposes, or otherwise to encumber its interest in and to the Leased Premises or this Agreement.
19.2 Transfer/Sublet. Concessionaire shall not transfer, assign, sublet, or otherwise alienate Concessionaire’s interest in and to the Leased Premises without first obtaining the written consent of the Board and the City, which consent shall not be unreasonably withheld. Concessionaire’s rights and obligations under this Agreement can only be transferred, rebranded, assigned, or otherwise alienated to another concessionaire that can demonstrate the ability to meet all of the obligations of this Agreement and can provide the same or better type and level of service and amenities as was required by the RFP and represented in Exhibit D. Any transfer, assignment, subletting, or alienation of this Agreement or of Concessionaire’s leasehold interest in the Leased Premises without the prior written consent of the Board and the City shall be null and void. All sublease agreements between the Concessionaire and sub-lessees shall prohibit the sublessee from further subleasing or permitting the use of the Leased Premises to a third party.
19.3 Permission to Sublease. In the event Concessionaire requests permission to sublease, the request shall be submitted to the Authorized Representative and must be approved by the Board prior to the effective date of the sublease requested and shall be accompanied by a copy of the proposed sublease agreements and all agreements collateral thereto. The area or space to be subleased, the rental to be charged, the type of business to be conducted, and the identity and financial history of the sub-tenant shall be specified. Each transfer, assignment or subletting to which there has been consent shall be by instrument, in writing, and shall be executed by transferee, assignee or sub-lessee who shall agree in writing, for the benefit of the Board and the City, to be bound by and to perform the terms, covenants and conditions of this Agreement. Five (5) executed copies of such written instrument shall be delivered to the Authorized Representative. Failure to first obtain written consent from the Board and the City, or failure to comply with the provisions herein contained, shall operate to prevent any such transfer, assignment or subletting from becoming effective. At Concessionaire’s option, Concessionaire shall record a memorandum of this Agreement with the recorder of mortgages for Jefferson Parish within fifteen (15) days of all parties signing this Agreement.
All concession subleases must comply with (1) all requirements listed in the RFP and its attachments and addenda; (2) the all provisions, specifications and standards set forth in Concessionaire’s response to the RFP; and (3) all requirements of this Agreement.
19.5 Lessor Consent. Should the assignment of this Agreement be consented by the Board and the City and to the extent that such assignee assumes Concessionaire’s obligations hereunder, Concessionaire shall not, by virtue of such assignment, be released from Concessionaire’s obligations under the Agreement unless at the time of the giving of its written consent the Board and the City expressly agrees in writing to the contrary. Should the subletting of the Leased Premises be consented to by the Board and the City, Concessionaire agrees and acknowledges that it shall remain fully and primarily liable under this Agreement, notwithstanding any such sublease and that any such sub-lessee shall be required to attorney to the Board and the City under the terms of this Agreement.
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The receipt by the Board and the City of rent from any assignee, subtenant or occupant of the Leased Premises shall not be deemed a waiver of the requirements in this Section 19 or an acceptance by the Board or the City of the assignee, subtenant or occupant as a tenant or a release of the Concessionaire from further observance or performance by the Concessionaire of the covenants and obligations contained in this Agreement. No provisions of this Agreement shall be deemed to have been waived by the Board or the City unless such waiver is in writing, signed by the Director of Aviation. The Board and the City reserve the right to transfer its interest in the Agreement.
20. RECORDS, BOOKS AND AUDIT
20.1 Concessionaire’s Records and Books. Concessionaire shall prepare and maintain, in accordance with Generally Accepted Accounting Principles, complete and accurate books and records that include all financial transactions related to the performance of this Agreement. Concessionaire’s system of accounts shall allow each Concession Location to be distinguished from all other Concession Locations. Concessionaire shall maintain source documents sufficient to support its books, records, and reports. All monies related to this Agreement shall be deposited to and paid from a business bank account(s), the records for which shall be subject to review and audit in accordance with the provisions hereof.
20.2 Monthly Reports. On the fifteenth (15th) day of each month following the Rental Commencement Date thereafter through and including the month following termination of this Agreement during the Term Concessionaire shall submit to the Authorized Representative, electronically at the Board’s option a statement (“Sales & Revenue Statement”), in a form satisfactory to the Board, showing the Gross Revenue and other sales-related information for each and every Concessionaire-operated and Subtenant- operated Concessions Location for the preceding calendar month and the cumulative Gross Revenue from all such Concessions Locations, from the date of commencement of the Agreement Year for which the report is made through the last day of the preceding month, accompanied by payment. The Board reserves the right to prescribe and revise the format of the Sales Statements at any time.
20.3 Monthly General Ledger Transactions. Concessionaire shall on or before the fifteenth (15th) day of each and every calendar month during the Term, or as otherwise requested by the Board or the Authorized Representative, submit an extract of the Concessionaire or Concessionaire’s Subtenants detailed general ledger transactions listing each entry on the general ledger accounting system. Transaction listings should be specific to each Concessions Location and include all general ledger accounts and available data fields in each transaction for the preceding calendar month in a format acceptable to the Board for each of the Concessionaire’s Airport locations, including subtenants. Files should be provided electronically to the Authorized Representative. Concessionaire shall also provide a complete and current detailed chart of accounts for all general ledger accounts upon request.
20.4 Annual Reports. No later than ninety (90) days after the end of each year during the Term, Concessionaire shall, at its sole cost and expense, provide an annual audit report
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by an independent Certified Public Accountant, licensed in the State of Louisiana and acceptable to the Authorized Representative, of Concessionaire’s monthly Gross Revenue and any amounts paid to the Board per the terms of this Agreement, or part thereof. There may be no limitation on the scope of the engagement that would preclude the auditor from expressing an unqualified opinion as to the correctness and completeness of the reported Gross Revenue. The engagement will include a Schedule of Gross Revenue and all payments made to the Board per this Agreement, prepared in accordance with the comprehensive basis of accounting defined herein and reported in a format acceptable to the Board. The engagement will be conducted in accordance with Generally Accepted Auditing Standards and shall include an opinion on whether the Schedule of Gross Revenue and all payments to the Board has been completely and accurately presented, calculated and reported according to the terms of this Agreement.
The Board reserves the right to challenge any findings or conclusions of the Annual Report if it believes an error may have occurred. In such event, the Board may conduct its own audit under the provisions in Section 20.5, or may require production of the supporting documentation used to reach the finding or conclusion in question. The resolution by the Board of any dispute will be final. Delivery of an Annual Report containing a qualified opinion, or an adverse opinion, or a disclaimer of opinion as defined in the Statements on Auditing Standards, as may from time to time be amended or superseded, issued by the Auditing Standards Board of the American Institute of Certified Public Accountants, or any successor board or agency thereto, will be deemed a material breach of this Agreement.
20.5 Audit and Inspection. Concessionaire will submit to any audit requested by the City or the Board, inspection, and review and, at the City’s or Board’s request, will make available all documents relating or pertaining to this Agreement maintained by or under the control of Concessionaire, its employees, agents, assigns, successors and subcontractors, during normal business hours at Concessionaire’s office or place of business in Louisiana. If no such location is available, Concessionaire will make the documents available at a time and location that is convenient for the City or the Board.
20.5.1 New Orleans City Code. Concessionaire will abide by all provisions of City Code § 2-1120, including but not limited to City Code § 2-1120(12), which requires Concessionaire to provide the Office of Inspector General with documents and information as requested. Failure to comply with such requests shall constitute a material breach of this Agreement. Concessionaire agrees that it is subject to the jurisdiction of the Orleans Parish Civil District Court for purposes of challenging a subpoena.
20.6 Fees, Expenses, Interest and Default. If an audit establishes that there has been an understatement of the Gross Revenue received from all operations at the Leased Premises by three percent (3%) or more (after the deductions and exclusions allowed in this Agreement) the entire reasonable expense of such audit and applicable attorney’s fees shall be paid by Concessionaire. Any additional monies due as a result of the audit shall be paid by Concessionaire to the Board with interest at eighteen percent (18%) per annum from the date such additional monies became due. If Concessionaire has overpaid rent,
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the Board will credit the amount of the overpayment against future rent payments. If a second audit during the Term that shows an understatement of Gross Revenue by three percent (3%) or more will be considered an event of default, with the potential for termination by the Board as defined in Section 15 of this Agreement. Concessionaire shall comply with all requirements under this Section or Concessionaire will incur fines as referenced in Section 10.24 of this Agreement.
20.7 General Ledger Sales Transactions. Concessionaire shall, within seven days of a written request by the Board, submit an extract of Concessionaire and Concessionaire’s Subtenants detailed general ledger sales transactions listing each sales entry on the general ledger accounting system for the period specified by the Board. Transaction listings must be specific to Concessionaire and Concessionaire’s Subtenants units and include all general ledger accounts available data fields in each transaction in a format acceptable to the Board for each of the Concessionaire’s and Concessionaire’s units.
Concessionaire shall also provide to the Board a current detailed chart of accounts for all general ledger accounts at the Board’s request.
20.8 Continuous Transmission of Sales Data. At the option of the Board, Concessionaire shall on a continuous, real time basis, using their electronic Point of Sale (“POS”) system, provide transactional data for all sales transactions. Transaction listings should be specific to Concessionaire and Concessionaire’s Subtenants units and include all available data fields in each transaction.
21. TARGETED AND DISADVANTAGED TARGETED WORKER PROGRAM FIRST SOURCE RECRUITMENT OF WORK FORCE
21.1 Definitions
For purposes of this Section 21, the following definitions shall be applicable:
a. “Apprenticeship Program” means a union or merit-based apprenticeship program recognized by the State and Federal government that is in good standing and not within a probationary period.
b. “Core Employee” means an employee of a Contractor or Subcontractor who appears on that Contractor or Subcontractor’s certified employee payroll sixty (60) of the previous one hundred calendar (100) days prior to date of award of an applicable contract.
c. “Disadvantaged Targeted Worker” means a targeted worker, as defined below, who (i) at the time of commencing work has a household income of less than 50% of AMI, adjusted for household size, of Orleans Parish or (ii) faces at least one of the following barriers to employment: (1) being homeless; (2) being a custodial single parent; (3) eligible to receive public assistance; (4) having a prior arrest or conviction; (5) suffering from Chronic Unemployment; (6) having been emancipated from the foster care system; or (7) being a veteran of the U.S. military.
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d. “Manpower Utilization Plan” means a plan that contains the manpower schedule by hours, man count, and craft type for the hiring of Targeted Workers and Disadvantaged Targeted Workers to meet the Targeted Worker and Disadvantaged Targeted Worker hiring goals and apprentice participation goals through the life of the Lease.
e. “Project Craft Hours” Includes all craft worker hours performed on project work during the construction phase.
f. Targeted Residency Area” means residency within Orleans, Jefferson, or St. Charles Parish defined by zip codes.
g. Targeted Worker” means any person domiciled in the Targeted residency area
21.2 Subject to the terms of paragraph 6.5.4 (Employee Retention Requirements) of this Agreement, the Concessionaire, its subcontractors and subtenants shall make ensure that the Targeted Worker and Disadvantaged Targeted Worker participation goals and apprentice participation goals outlined below are met. These goals will be evaluated annually and may be modified to reflect the availability of Targeted and Disadvantaged Targeted Workers.
A. 30% of all project craft hours performed by Louisiana workers shall be performed by Targeted Workers.
B. 10% of project craft hours performed by Targeted Workers shall be performed by Disadvantaged Targeted Workers.
C. Where applicable utilize Apprenticeship Programs to employ the maximum number of apprentices allowed by law to ensure that at least 10% of all work hours performed by Louisiana apprentices are performed by Disadvantaged Targeted Workers.
D. 50% of permanent employees to be Targeted Workers.
E. 30% of permanent employees to be Disadvantaged Targeted Workers.
1) The Concessionaire, its subcontractors and subtenants shall first attempt to meet the Targeted Worker and Disadvantaged Targeted Worker participation goals by employing qualified workers who reside in the Targeted Residency Area. This area includes St. Charles, Jefferson and Orleans parish zip codes.
2) The City’s government office, The Office of Workforce Development (“OWD”), shall be the first source for recruitment, referral, and placement of all new hires for employment opportunities created by the Airport Hotel Project. The OWD will refer to the Concessionaire, its subcontractors and subtenants qualified Targeted Workers and Disadvantaged Targeted Workers who graduated from an approved training program or who possess documented construction experience in the requested craft. This does not limit the Concessionaire, its subcontractors and subtenants ability to assess qualifications of prospective
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candidates for employment. Nor does this provision make final hiring and retention decisions. Rather, all hiring decisions are left to the Concessionaire, its subcontractors and subtenants and this program is simply a tool to be used as the first source for recruitment, referral and placement of new hires.
3) The Concessionaire, its subcontractors and subtenants unable to hire qualified Targeted Workers or Disadvantaged Targeted Workers after making documented efforts to meet the Targeted Worker or Disadvantaged Targeted Worker hiring participation goals may employ qualified workers who reside outside of the Targeted Residency Area.
4) The Concessionaire, its subcontractors and subtenants unable to meet the Targeted Worker or Disadvantaged Targeted Worker hiring participation goals shall collaborate with The City to promote and/or facilitate training for Targeted Workers or Disadvantaged Targeted Workers in their craft, and participate in outreach and mentorship activities.
21.3 Administration and Compliance
A. The City shall be the first source for recruitment, referral, and placement of all new hires for employment opportunities created by the operations of concessions on the Premises. The Concessionaire and its subcontractors shall notify the City of its specific manpower needs at least five (5) business days before advertising the employment opportunity to the general or recruiting for these craft positions outside the Targeted Residency Area.
B. The Concessionaire, its subcontractors and subtenants shall first meet their manpower needs by employing qualified Targeted Workers and Disadvantaged Targeted Workers. This does not limit the Concessionaire, its subcontractors and subtenants ability to assess qualifications of prospective candidates for employment. Nor does this provision make final hiring and retention decisions. Rather, all hiring decisions are left to the Concessionaire, its subcontractors and subtenants and this program is simply a tool to be used as the first source for recruitment, referral and placement of new hires.
C. The Concessionaire, its subcontractors and subtenants shall use the Employee Request Form for all requests for dispatch of workers (including apprentices and journeymen), who are qualified Targeted Workers or Disadvantaged Targeted Workers from The City or a union hiring hall.
D. The Concessionaire, its subcontractors and subtenants, prior to commencing work, shall submit for approval a Manpower Utilization Plan to The City or its designee that contains the manpower plan and schedule by hours, man count, and craft/occupation type for the hiring of qualified Targeted Workers and Disadvantaged Targeted Workers, and the assignment and use of the subcontractors’ workforce to meet the Targeted Worker and Disadvantaged Targeted Worker hiring goals and if applicable, apprentice participation goals. The Concessionaire, its subcontractors and subtenants,
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thereafter, will submit updates to the Manpower Utilization Plan to reflect changes in project conditions, schedule, or subcontractors.
E. The Concessionaire, its subcontractors and subtenants, prior to commencing work or operations, shall submit a Workforce roster containing all core employees.
F. During the construction phase, all contractors shall submit certified payroll reports and required documents in the City’s LCP Tracker System.
G. During the operations phase, subtenants shall make available to the Mayor’s Office of Workforce Development and upon request of the City, records sufficient to determine compliance with its obligations hereunder.
H. During the construction phase, the Concessionaire and its subcontractors shall submit a Targeted Craft Worker Utilization Report using LCP Tracker to the City on the first and third Monday of each month followed by the submittal of a cumulative month- end Targeted Craft Worker Utilization Report with the monthly pay application to demonstrate progress in meeting its Targeted Worker and Disadvantaged Targeted Worker hiring and apprentice participation projections in the Manpower Utilization Plan.
I. During construction phase, the Concessionaire’s Manpower Utilization Plan will be evaluated monthly using the Targeted Craft Worker Utilization Report.
J. The City may issue a DBE subcontractor a waiver from the Targeted Worker and Disadvantaged Targeted Worker hiring goals if the total number of workers used by the subcontractor is four (4) or less, the work performed requires a specialized certification or license, and the work will be performed in one day. The Concessionaire and its subcontractors will submit a waiver request to the City for review and approval one month prior to the subcontractor commencing work.
K. The Workforce Development program forms and administrative documents attached hereto as Exhibit I are incorporated into this Agreement.
22. GENERAL PROVISIONS
22.1 Acknowledgment of exclusion of unemployment compensation coverage. Concessionaire herein expressly declares and acknowledges that it is an independent contractor, and as such is being hired by the Board under this Agreement for hire as noted and defined in R.S. 23:1472 (E), and therefore, it is expressly declared and understood between the parties hereto, in entering into this Agreement, or agreement for hire, and in connection with unemployment compensation only, that:
A. Concessionaire has been and will be free from any control or direction by the Board over the performance of the services covered by this Agreement; and
B. Services to be performed by Concessionaire are outside the normal course and scope of the Board’s usual business; and
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C. Concessionaire has been independently engaged in performing the services listed herein prior to the date of this Agreement.
Consequently, neither Concessionaire nor anyone employed by Concessionaire shall be considered an employee of the Board or the City for the purpose of unemployment compensation coverage, the same being hereby expressly waived and excluded by the parties hereto.
22.2 Acknowledgment of exclusion of worker’s compensation coverage. Concessionaire herein expressly agrees and acknowledges that it is an independent contractor as defined in R.S. 23:1021 (6) and as such, it is expressly agreed and understood between the parties hereto, in entering into this Agreement, that the Board and the City shall not be liable to Concessionaire for any benefits or coverage as provided by the Workmen's Compensation Law of the State of Louisiana, and further, under the provisions of R.S. 23:1034 anyone employed by Concessionaire shall not be considered an employee of the Board or the City for the purpose of Worker’s Compensation coverage.
22.3 Amendment. The Agreement shall not be modified except by written amendment executed by duly authorized representatives of the Parties.
22.4 Choice of Laws. This Agreement shall be construed and enforced in accordance with the laws of the State of Louisiana, without regard to its conflict of laws provisions.
22.5 Conflict of Interest. In the interest of ensuring that efforts of Concessionaire do not conflict with the interests of the Board, and in recognition of Concessionaire’s responsibility to the Board, Concessionaire agrees to decline any offer of employment if its independent work on behalf of the Board is likely to be adversely affected by the acceptance of such employment. The initial determination of such a possibility rests with Concessionaire. It is incumbent upon Concessionaire to notify the Authorized Representative and provide full disclosure of the possible effects of such employment on Concessionaire's independent work on behalf of the Board. Final decision on any disputed offers of other employment for Concessionaire shall rest with the Board.
22.6 Construction of Agreement. Neither party will be deemed to have drafted the Agreement. The Agreement has been reviewed by all parties and will be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of all parties. No term of the Agreement will be construed or resolved in favor of or against the Board or Concessionaire on the basis of which party drafted the uncertain or ambiguous language. The headings and captions of the Agreement are provided for convenience only and are not intended to have effect in the construction or interpretation of the Agreement. Where appropriate, the singular includes the plural, and neutral words and words of any gender include the neutral and other gender.
22.7 Contract Documents. The Contract documents shall include and be interpreted in the following order: (1) this Agreement together with all attachments, exhibits and addenda, (2) RFP No. 8910-02050 together with all addenda, attachments and exhibits (a copy of
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which is attached hereto as Exhibit G), and (3) Concessionaire’s proposal submitted in response to RFP No. 8910-02050 (a copy of which is attached hereto as Exhibit H).
22.8 Convicted Felon Statement. Concessionaire complies with City Code § 2-8(c) and no principal, member, or officer of Concessionaire has, within the preceding five (5) years, been convicted of, or pled guilty to, a felony under state or federal statutes for embezzlement, theft of public funds, bribery, or falsification or destruction of public records.
22.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original copy of this Agreement, but all of which, when taken together, shall constitute one and the same agreement.
22.10 Electronic Signature and Delivery. The Parties agree that a manually signed copy of this Agreement and any other document(s) attached to this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. No legally binding obligation shall be created with respect to a party until such party has delivered or caused to be delivered a manually signed copy of this Agreement.
22.11 Employee Verification. Concessionaire swears that (i) it is registered and participates in a status verification system to verify that all employees in the State of Louisiana are legal citizens of the United States or are legal aliens; (ii) it shall continue, during the term of this Agreement, to utilize a status verification system to verify the legal status of all new employees in the State of Louisiana; and (iii) it shall require all subcontractors to submit to Concessionaire a sworn affidavit verifying compliance with items (i) and (ii) above. Any violation of the provisions of this paragraph may subject this Agreement to termination, and may further result in Concessionaire being ineligible for any public contract for a period of three years from the date the violation is discovered. Concessionaire further acknowledges and agrees that it shall be liable for any additional costs incurred by the Board occasioned by the termination of this Agreement or the loss of any license or permit to do business in the State of Louisiana resulting from a violation of this provision. Concessionaire will provide to the Board a sworn affidavit attesting to the above provisions if requested by the Board. The Board may terminate this Agreement for cause if Concessionaire fails to provide such the requested affidavit or violates any provision of this paragraph.
22.12 Entire Agreement. This Agreement, including all incorporated documents, constitutes the final and complete agreement and understanding between the parties. All prior and contemporaneous agreements and understandings, whether oral or written, are superseded by this Agreement and are without effect to vary or alter any terms or conditions of this Agreement.
22.13 Equal Opportunity Employment. In all hiring or employment made possible by, or resulting from this agreement, Concessionaire agrees that there (1) will not be any discrimination against any employee or applicant for employment because of race, color, religion, gender, age, physical or mental disability, national origin, sexual orientation,
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creed, culture, or ancestry, and (2) where applicable, affirmative action will be taken to ensure that Concessionaire’s employees are treated during employment without regard to their race, color, religion, gender, age, physical or mental disability, national origin, sexual orientation, creed, culture, or ancestry. This requirement shall apply to, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. All solicitations or advertisements for employees shall state that all qualified applicants will receive consideration for employment without regard to race, color, religion, gender, age, physical or mental disability, national origin, sexual orientation, creed, culture, or ancestry.
22.14 Exclusive Jurisdiction and Venue. For all claims arising out of or related to this Agreement, Concessionaire hereby consents and yields to the jurisdiction of the Civil District Court for the Parish of Orleans, and expressly waives any (A) pleas of jurisdiction based upon Contractor’s residence and (B) right of removal to federal court based upon diversity of citizenship.
22.15 Incorporation into Subcontracts. Concessionaire will incorporate Agreement Terms and Conditions into all subcontracts, by reference or otherwise, and will require all subcontractors to comply with these provisions.
22.16 Independent Contractor Status. Concessionaire is an independent contractor and shall not be deemed an employee, servant, agent, partner, or joint venture of the Board or the City and will not hold itself or any of its employees, subcontractors or agents to be an employee, partner, or agent of the Board or the City.
22.17 Limitations of the City’s Obligations. The Board and the City have no obligations not explicitly set forth in this Agreement or any incorporated documents or expressly imposed by law.
22.18 Living wages. Concessionaire agrees to abide by City Code sections 70-801, et seq., which requires payment of a wage to covered employees equal to the amounts defined in the Code (“Living Wage”). If Concessionaire fails to comply with the requirements of the Living Wage during the term of the Agreement, said failure may result in termination of the Agreement or the pursuit of other remedies by the Board or the City.
22.19 No Third Party Beneficiaries. The Agreement is entered into for the exclusive benefit of the Board, City and Concessionaire, and the Board, City and Concessionaire expressly disclaim any intent to benefit anyone not a party to this Agreement.
22.20 Non-Exclusive Rights. The rights granted to Concessionaire in this Agreement are non- exclusive. The Board may, at any time, award a contract to other parties who may have rights or may sell food and beverage or provide similar or identical services at the Airport as those non-exclusively granted to Concessionaire herein. Further, may, in its sole discretion, grant exclusive rights to other concessionaires to sell goods or services that Concessionaire is not authorized to sell.
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In the event of a dispute between Concessionaire and any other party operating at the Airport as to the rights of the parties under their respective contracts, the Board shall determine the rights of each party and Concessionaire agrees to be bound by the Board’s decision.
22.21 Non-Discrimination. In the performance of this Agreement, Concessionaire will not discriminate on the basis, whether in fact or perception, of a person's race, color, creed, religion, national origin, ancestry, age, sex (gender), sexual orientation, gender identity, domestic partner status, marital status, physical or mental disability, or AIDS- or HIV- status against (1) any employee of the City working with Concessionaire in any of Contractor’s operations within Orleans Parish or (2) any person seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social, or other establishments or organizations operated by Concessionaire. Concessionaire agrees to comply with and abide by all applicable federal, state and local laws relating to non-discrimination, including, without limitation, Title VI of the Civil Rights Act of 1964, Section V of the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990.
22.22 Non-solicitation. Concessionaire has not employed or retained any company or person, other than a bona fide employee working solely for him, to solicit or secure the subject Agreement. Concessionaire has not paid or agreed to pay any person, other than a bona fide employee working for him, any fee, commission, percentage, gift, or any other consideration contingent upon or resulting from the subject Agreement.
22.23 Non-waiver. The failure of the Board to insist upon strict compliance with any provision of the Agreement, to enforce any right or to seek any remedy upon discovery of any default or breach of Concessionaire at such time as the initial discovery of the existence of such noncompliance, right, default or breach shall not affect or constitute a waiver of the Board’s right to insist upon such compliance, exercise such right or seek such remedy with respect to that default or breach or any prior contemporaneous or subsequent default or breach.
22.24 Notices and Communications.
All notices provided to be given under this Agreement shall be deemed properly served if such notice is given by certified mail, return receipt requested, addressed to the other party at the following address, or such other address as either party may, from time to time, designate in writing:
The Airport: Director of Aviation New Orleans Aviation Board P. O. Box 20007 New Orleans, Louisiana 70141
with a copy to: Deputy Director and Chief Customer Service Officer New Orleans Aviation Board P. O. Box 20007
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New Orleans, Louisiana 70141
Concessionaire: ------
Notices mailed in accordance with the provisions hereof shall be deemed to have been given as of the date of receipt or the third business day following the date of such mailing, whichever is earlier.
Unless notified otherwise, all correspondence, documentation and information, including but not limited to inquiries, review, questions, pay requests and other matters that require action on the part of the Airport shall be addressed to the Authorized Representative.
22.25 Ownership interest disclosure. Concessionaire will provide a sworn affidavit listing all natural or artificial persons with an ownership interest in Concessionaire and stating that no other person holds an ownership interest in Concessionaire via a counter letter. For the purposes of this provision, an “ownership interest” shall not be deemed to include ownership of stock in a publicly traded corporation or ownership of an interest in a mutual fund or trust that holds an interest in a publicly traded corporation. If Concessionaire fails to submit the required affidavits, the Board may, after thirty (30) days’ written notice to Concessionaire, take such action as may be necessary to cause the suspension of any further payments until such the required affidavits are submitted.
22.26 Ownership of records. Upon final payment, all data collected and all products of work prepared, created or modified by Contractor in the performance of this Agreement, including without limitation any and all notes, tables, graphs, reports, files, computer programs, source code, documents, records, disks, original drawings or other such material, regardless of form and whether finished or unfinished, but excluding Concessionaire’s personnel and administrative records and any tools, systems, and information used by Concessionaire to perform the services under this Agreement, including computer software (object code and source code), know-how, methodologies, equipment, and processes and any related intellectual property (collectively, “Work Product”) will be the exclusive property of Board and the Board will have all right, title and interest in any Work Product, including without limitation the right to secure and maintain any copyright, trademark, or patent of Work Product in the Board’s name. No Work Product may be reproduced in any form with the Board’s express written consent. The Board may use and distribute any Work Product for any purpose the Board deems appropriate without Concessionaire’s consent and for no additional consideration to Concessionaire.
22.27 Prohibition against financial interest in agreement. No elected official or employee of the Board or the City shall have a financial interest, direct or indirect, in the Agreement, including through any financial interest held by the spouse, child, or parent. Any willful violation of this provision, with the expressed or implied knowledge of Concessionaire, will render this Agreement voidable by the Board and the City and shall entitle the Board or the City to recover, in addition to another rights and remedies available to the Board or the City, all monies paid by the Board to Concessionaire pursuant to this Agreement
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without regard to Concessionaire’s satisfactory performance.
22.28 Prohibition on political activity. None of the funds, materials, property, or services provided directly or indirectly under the terms of this Agreement shall be used in the performance of this Agreement for any partisan political activity, or to further the election or defeat of any candidate for public office.
22.29 Remedies cumulative. No remedy set forth in the Agreement or otherwise conferred upon or reserved to any party shall be considered exclusive of any other remedy available to a party. Rather, each remedy shall be deemed distinct, separate and cumulative and each may be exercised from time to time as often as the occasion may arise or as may be deemed expedient.
22.30 Severability. If a court of competent jurisdiction finds any provision of the Agreement to be unenforceable as written, the unenforceable provision should be reformed, if possible, so that it is enforceable to the maximum extent permitted by law, or, if reformation is not possible, the unenforceable provision will be fully severable and the remaining provisions of the Agreement will remain in full force and effect and will be construed and enforced as if the unenforceable provision was never a part the Agreement.
22.31 Subcontractor reporting. Concessionaire will provide a list of all natural or artificial persons who are retained by Concessionaire at the time of the Agreement’s execution and who are expected to perform work as subcontractors in connection with Concessionaire’s work for the Board. For any subcontractor proposed to be retained by Concessionaire to perform work on this Agreement with the Board, Concessionaire must provide notice to the Authorized Representative within thirty (30) days of retaining that subcontractor. If Concessionaire fails to submit the required lists and notices, the Board may, after thirty (30) days’ written notice to Concessionaire, take any action it deems necessary, including, without limitation, causing the suspension of any payments, until the required lists and notices are submitted.
22.32 Survival of certain provisions. All representations and warranties and all obligations concerning record retention, inspections, audits, ownership, indemnification, payment, remedies, jurisdiction, venue, choice of law, and warranties shall survive the expiration, suspension, or termination of the Agreement and continue in full force and effect.
22.33 Terms binding. The terms and conditions of the Agreement are binding on any heirs, successors, transferees, and assigns.
22.34 Waiver of benefits. Concessionaire, as an independent contractor, will not receive from the Board or the City any sick and annual leave benefits, medical insurance, life insurance, paid vacations, paid holidays, sick leave, pension, or Social Security for any services rendered to the Board or the City under this Agreement.
22.35 Amendment Required by FAA/TSA
This Lease may be amended without further consideration for the purpose of satisfying FAA or TSA requirements. In the event that the FAA requires, as a condition precedent
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to granting of funds for the improvement of the Airport, modifications or changes to this Lease, Concessionaire agrees to such modifications or changes as may be required to enable Lessor to obtain FAA funds.
22.36 Accord and Satisfaction
No payment by Concessionaire or receipt by Lessor of a lesser amount than the rent, fees and/or charges due to be made by Concessionaire herein shall be deemed to be other than on account of the rent, fees and/or charges due, and no endorsement or statement on any check or in any letter accompanying any check or payment as rent, fees and/or charges shall be deemed an accord and satisfaction, and Lessor may accept such check or payment without prejudice to Lessor's right to recover the balance of such rent, fees and/or charges or to pursue any other remedy provided in this Lease.
22.37 Delinquent Taxes
Concessionaire swears that it complies with City Code §2-8 (a). Concessionaire is not delinquent in any taxes owed to the City.
22.38 Amendment
The Lease shall not be modified except by written amendment executed by duly authorized representatives of the parties.
23. REQUIRED FEDERAL PROVISIONS
23.1 Civil Rights – General
The Concessionaire and its transferee agree to comply with pertinent statutes, Executive Orders and such rules as are promulgated to ensure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance.
This provision obligates the Concessionaire or its transferee for the period during which Federal assistance is extended to the airport through the Airport Improvement Program.
In cases where Federal assistance provides, or is in the form of personal property; real property or interest therein; structures or improvements thereon, this provision obligates the party or any transferee for the longer of the following periods:
A. The period during which the property is used by the airport sponsor or any transferee for a purpose for which Federal assistance is extended, or for another purpose involving the provision of similar services or benefits; or
B. The period during which the airport sponsor or any transferee retains ownership or possession of the property.
23.2 Title VI - Compliance with Nondiscrimination Requirements
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During the performance of this contract, the Concessionaire, for itself, its assignees, and successors in interest (hereinafter referred to as the “Concessionaire”) agrees as follows:
A. Compliance with Regulations: The Concessionaire (hereinafter includes consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts And Authorities, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract.
B. Non-discrimination: The Concessionaire, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Concessionaire will not participate directly or indirectly in the discrimination prohibited by the Nondiscrimination Acts and Authorities, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR part 21.
C. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the Concessionaire for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Concessionaire of the Concessionaire’s obligations under this contract and the Nondiscrimination Acts And Authorities on the grounds of race, color, or national origin.
D. Information and Reports: The Concessionaire will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the sponsor or the Federal Aviation Administration to be pertinent to ascertain compliance with such Nondiscrimination Acts And Authorities and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Concessionaire will so certify to the sponsor or the Federal Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain the information.
E. Sanctions for Noncompliance: In the event of Concessionaire’s noncompliance with the Non-discrimination provisions of this contract, the Lessor will impose such contract sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to:
1. Withholding payments to the contractor under the contract until the contractor complies; and/or
2. Cancelling, terminating, or suspending a contract, in whole or in part.
F. Incorporation of Provisions: The Concessionaire will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The Concessionaire will take action with respect to any
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subcontract or procurement as the sponsor or the Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the sponsor to enter into any litigation to protect the interests of the sponsor. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States.
23.3 Title VI - Title VI Clauses for Transfer of Real Property Acquired or Improved Under the Activity, Facility, or Program
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the Lessor pursuant to the provisions of the Airport Improvement Program grant assurances.
A. The Concessionaire for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree that:
In the event facilities are constructed, maintained, or otherwise operated on the property described in this Lease for a purpose for which a Federal Aviation Administration activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the Concessionaire will maintain and operate such facilities and services in compliance with all requirements imposed by the Nondiscrimination Acts and Regulations listed in the Pertinent List of Nondiscrimination Authorities (as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities.
B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above covenants, Lessor will have the right to terminate the Lease and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the Lease had never been made or issued.
23.4 Title VI - Clauses for Construction/Use/Access to Real Property Acquired Under the Activity, Facility or Program
The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by Lessor pursuant to the provisions of the Airport Improvement Program grant assurances.
A. The Concessionaire for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, “as a covenant running with the land”) that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishing of services thereon, no
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person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the List of discrimination Acts And Authorities.
B. With respect to (licenses, leases, permits, etc.), in the event of breach of any of the above nondiscrimination covenants, Lessor will have the right to terminate the (license, permit, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.
23.5 Title VI List of Pertinent Nondiscrimination Acts and Authorities
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees to comply with the following non-discrimination statutes and authorities; including but not limited to:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin);
• 49 CFR part 21 (Non-discrimination In Federally-Assisted Programs of The Department of Transportation—Effectuation of Title VI of The Civil Rights Act of 1964);
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
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• Titles II and III of the Americans with Disabilities Act of 1990, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations at 49 CFR parts 37 and 38;
• The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures non- discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations;
• Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq)
• Subtitle A of Title II of the Americans with Disabilities Act of 1990 (42 U.S.C. 12131), which prohibits discrimination on the basis of disability by public entities as implemented by the Department of Justice regulations at 28 CFR part 35;
• Title III of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181), which prohibits discrimination on the basis of disability by public accommodations and requires places of public accommodation and commercial facilities to be designed, constructed, and altered in compliance with accessibility standards as implemented by the Department of Justice regulations at 28 CFR part 36.
23.6 Fair Labor Standards Act
All contracts and subcontracts that result from this solicitation incorporate by reference the provisions of 29 CFR Part 201, the Federal Fair Labor Standards Act (FLSA), with the same force and effect as if given in full text. The FLSA sets minimum wage, overtime pay, recordkeeping, and child labor standards for full and part time workers.
The Concessionaire has full responsibility to monitor compliance to the referenced statute or regulation. The proposer must address any claims or disputes that arise from this requirement directly with the U.S. Department of Labor – Wage and Hour Division.
23.7 Occupational Safety and Health Act of 1970
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All contracts and subcontracts shall incorporate by reference the requirements of 29 CFR Part 1910 with the same force and effect as if given in full text. Concessionaire must provide a work environment that is free from recognized hazards that may cause death or serious physical harm to the employee. Concessionaire retains full responsibility to monitor its compliance and their subcontractor’s compliance with the applicable requirements of the Occupational Safety and Health Act of 1970 (20 CFR Part 1910). Concessionaire must address any claims or disputes that pertain to a referenced requirement directly with the U.S. Department of Labor – Occupational Safety and Health Administration.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Lessor and the Concessionaire, through their duly authorized representatives, execute this Agreement.
CITY OF NEW ORLEANS
BY:
MITCHELL J. LANDRIEU, MAYOR
Executed on this of , 201
FORM AND LEGALITY APPROVED:
Law Department
By:
Printed Name:
[BOARD SIGNATURES CONTAINED ON NEXT PAGE]
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Approved by resolution of the New Orleans Aviation Board dated [INSERT DATE] and directing the Chairwoman and Director of Aviation to execute the same:
NEW ORLEANS AVIATION BOARD
By: Cheryl Teamer, Chairwoman Date New Orleans Aviation Board
By: Iftikhar Ahmad, Director of Aviation Date New Orleans Aviation Board
Reviewed as to form and legality:
By: Michele Allen-Hart Date General Counsel and Deputy Director of Legal Affairs New Orleans Aviation Board
[CONCESSIONAIRE SIGNATURE CONTAINED ON NEXT PAGE]
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CONCESSIONAIRE
By:
______
Taxpayer Identification Number
Date:
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ATTACHMENT “F”
EXISTING NEWS, GIFT AND SPECIALTY RETAIL REVENUES
GROSS NET Enplanements
2005 $10,488,860 $1,540,842 3,904,366
2006 $9,165,064 $1,025,346 3,108,617
2007 $12,568,751 $1,552,424 3,766,005
2008 $13,797,248 $1,696,588 3,973,167
2009 $12,708,575 $1,718,179 3,908,416
2010 $13,469,186 $2,018,901 4,102,138
2011 $13,433,466 $2,010,002 4,280,910
2012 $14,169,903 $2,133,971 4,306,707
2013 $19,223,988 $2,929,749 4,598,213
2014 $20,511,511 $3,087,583 4,892,302
2015 $21,660,720 $3,230,198 5,344,625
YTD 2016(May) $10,021,933 $1,470,063 2,363,241
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “G”
ENPLANEMENTS BY AIRLINE
2010 through YTD 2016
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
LOUIS ARMSTRONG NEW ORLEANS INTERNATIONAL AIRPORT
Summary of Enplaned Passengers by Airline
Month % Year-to-Date % Market Share Dec-10 Dec-09 Change 2010 2009 Change 2010 2009 Domestic Scheduled AirTran Airways 15,999 13,801 15.9% 173,420 148,100 20.0% 4.2% 3.8% American Airlines 33,049 36,794 -10.2% 452,442 432,902 4.5% 11.0% 11.1% American Express Carriers 1,146 4,844 -76.3% 18,298 67,516 -72.9% 0.4% 1.7% American System Total 34,195 41,638 -17.9% 470,740 500,418 -5.9% 11.5% 12.8% Continental Airlines 35,757 39,002 -8.3% 498,162 506,667 -1.7% 12.1% 13.0% Continental Express Carriers 3,016 3,133 -3.7% 41,144 35,416 16.2% 1.0% 0.9% Continental System Total 38,773 42,135 -8.0% 539,306 542,083 -0.5% 13.1% 13.9% Delta Air Lines 56,880 34,721 63.8% 702,462 427,240 64.4% 17.1% 10.9% Delta Express Carriers 7,569 24,722 -69.4% 102,024 286,607 -64.4% 2.5% 7.3% Delta System Total 64,449 59,443 8.4% 804,486 713,847 12.7% 19.6% 18.3% Frontier 2,630 0 100.0% 19,570 0 100.0% 0.5% 0.0% JetBlue 11,183 11,077 1.0% 132,096 132,953 -0.6% 3.2% 3.4% Midwest 1,658 0 100.0% 12,270 0 100.0% 0.3% 0.0% Southwest 108,857 99,525 9.4% 1,263,852 1,181,379 7.0% 30.8% 30.2% United Airlines 20,209 24,068 -16.0% 247,682 262,186 -5.5% 6.0% 6.7% United Express Carriers 5,485 5,207 5.3% 75,039 78,880 -4.9% 1.8% 2.0% United System Total 25,694 29,275 -12.2% 322,721 341,066 -5.4% 7.9% 8.7% US Airways 15,120 12,894 17.3% 192,770 218,164 -11.6% 4.7% 5.6% US Airways Express Carriers 11,066 9,672 14.4% 150,534 117,597 28.0% 3.7% 3.0% US Airways System Total 26,186 22,566 16.0% 343,304 335,761 2.2% 8.4% 8.6% Total Domestic Scheduled 329,624 319,460 3.2% 4,081,765 3,895,607 4.8% 99.5% 99.7%
International Scheduled Aeromexico 0 950 -100.0% 2,495 4,349 -42.6% 0.1% 0.1% Air Canada 1,011 0 100.0% 2,452 0 100.0% 0.1% 0.0% WestJet 1,006 0 100.0% 2,350 0 100.0% 0.1% 0.0% Total Int'l Scheduled 2,017 950 112.3% 7,297 4,349 67.8% 0.2% 0.1%
Charter Domestic 903 634 42.4% 10,737 7,372 45.6% 0.3% 0.2% International 1,577 0 100.0% 2,339 1,088 115.0% 0.1% 0.0% Total Charter 2,480 634 291.2% 13,076 8,460 54.6% 0.3% 0.2%
Total Enplaned 334,121 321,044 4.1% 4,102,138 3,908,416 5.0% LOUIS ARMSTRONG NEW ORLEANS INTERNATIONAL AIRPORT
Enplaned Passengers by Airline
Month % Year-to-Date % Market Share Dec-11 Dec-10 Change 2011 2010 Change 2011 2010 Domestic Scheduled AirTran Airways 16,641 15,999 4.0% 176,961 173,420 2.0% 4.1% 4.2% American Airlines 32,867 33,049 -0.6% 446,095 452,442 -1.4% 10.4% 11.0% American Express Carriers 2,939 1,146 156.5% 9,184 18,298 -49.8% 0.2% 0.4% American System Total 35,806 34,195 4.7% 455,279 470,740 -3.3% 10.6% 11.5% Continental Airlines 33,301 35,757 -6.9% 445,600 498,162 -10.6% 10.4% 12.1% Continental Express Carriers 6,443 3,016 113.6% 65,096 41,144 58.2% 1.5% 1.0% Continental System Total 39,744 38,773 2.5% 510,696 539,306 -5.3% 11.9% 13.1% Delta Air Lines 58,931 56,880 3.6% 792,013 702,462 12.7% 18.5% 17.1% Delta Express Carriers 12,369 7,569 63.4% 137,330 102,024 34.6% 3.2% 2.5% Delta System Total 71,300 64,449 10.6% 929,343 804,486 15.5% 21.7% 19.6% Frontier 5,095 2,630 93.7% 50,055 19,570 155.8% 1.2% 0.5% JetBlue 11,774 11,183 5.3% 126,909 132,096 -3.9% 3.0% 3.2% Midwest 0 1,658 -100.0% 3,395 12,270 -72.3% 0.1% 0.3% Southwest 117,418 108,857 7.9% 1,367,788 1,263,852 8.2% 32.0% 30.8% United Airlines 14,254 20,209 -29.5% 218,793 247,682 -11.7% 5.1% 6.0% United Express Carriers 6,028 5,485 9.9% 70,854 75,039 -5.6% 1.7% 1.8% United System Total 20,282 25,694 -21.1% 289,647 322,721 -10.2% 6.8% 7.9% US Airways 12,095 15,120 -20.0% 160,197 192,770 -16.9% 3.7% 4.7% US Airways Express Carriers 15,381 11,066 39.0% 177,662 150,534 18.0% 4.2% 3.7% US Airways System Total 27,476 26,186 4.9% 337,859 343,304 -1.6% 7.9% 8.4% Total Domestic Scheduled 345,536 329,624 4.8% 4,247,932 4,081,765 4.1% 99.2% 99.5%
International Scheduled Aeromexico 0 0 0.0% 0 2,495 -100.0% 0.0% 0.1% Air Canada 1,086 1,011 7.4% 15,433 2,452 529.4% 0.4% 0.1% WestJet 0 1,006 -100.0% 6,779 2,350 188.5% 0.2% 0.1% Total Int'l Scheduled 1,086 2,017 -46.2% 22,212 7,297 204.4% 0.5% 0.2%
Charter Domestic 195 903 -78.4% 7,380 10,737 -31.3% 0.2% 0.3% International 330 1,577 -79.1% 2,664 2,339 13.9% 0.1% 0.1% Total Charter 525 2,480 -78.8% 10,044 13,076 -23.2% 0.2% 0.3%
Total Enplaned Passengers 347,147 334,121 3.9% 4,280,188 4,102,138 4.3% LOUIS ARMSTRONG NEW ORLEANS INTERNATIONAL AIRPORT For the Period Ending December 31, 2012
Enplaned Passengers by Airline
Month % Year-to-Date % Market Share Dec-12 Dec-11 Change 2012 2011 Change 2012 2011
Domestic Scheduled
AirTran Airways 11,316 16,641 -32.0% 162,987 176,961 -7.9% 3.8% 4.1%
American Airlines 30,712 32,867 -6.6% 375,112 446,095 -15.9% 8.7% 10.4% American Express Carriers 4,238 2,939 44.2% 50,445 9,184 449.3% 1.2% 0.2% American System Total 34,950 35,806 -2.4% 425,557 455,279 -6.5% 9.9% 10.6% Continental Airlines 33,567 33,301 0.8% 385,049 445,600 -13.6% 8.9% 10.4%
Continental Express Carriers 0 6,443 -100.0% 44,660 65,096 -31.4% 1.0% 1.5% Continental System Total 33,567 39,744 -15.5% 429,709 510,696 -15.9% 10.0% 11.9% Delta Air Lines 59,562 58,931 1.1% 807,337 792,013 1.9% 18.7% 18.5%
Delta Express Carriers 10,251 12,369 -17.1% 129,005 137,330 -6.1% 3.0% 3.2% Delta System Total 69,813 71,300 -2.1% 936,342 929,343 0.8% 21.7% 21.7%
Frontier 3,109 5,095 -39.0% 48,339 50,055 -3.4% 1.1% 1.2% JetBlue 8,486 11,774 -27.9% 124,890 126,909 -1.6% 2.9% 3.0% Midwest 0 0 0.0% 0 3,395 -100.0% 0.0% 0.1% Southwest 116,895 117,418 -0.4% 1,429,257 1,367,788 4.5% 33.2% 32.0%
United Airlines 15,679 14,254 10.0% 234,395 218,793 7.1% 5.4% 5.1% United Express Carriers 12,551 6,450 94.6% 114,908 71,576 60.5% 2.7% 1.7%
United System Total 28,230 20,704 36.4% 349,303 290,369 20.3% 8.1% 6.8% US Airways 17,260 12,095 42.7% 228,909 160,197 42.9% 5.3% 3.7% US Airways Express Carriers 13,776 15,381 -10.4% 139,905 177,662 -21.3% 3.2% 4.2%
US Airways System Total 31,036 27,476 13.0% 368,814 337,859 9.2% 8.6% 7.9% Total Domestic Scheduled 337,402 345,958 -2.5% 4,275,198 4,248,654 0.6% 99.3% 99.2%
International Scheduled
Air Canada 1,356 1,086 24.9% 18,938 15,433 22.7% 0.4% 0.4%
WestJet 0 0 0.0% 0 6,779 -100.0% 0.0% 0.2% Total Int'l Scheduled 1,356 1,086 24.9% 18,938 22,212 -14.7% 0.4% 0.5%
Charter
Domestic 825 195 323.1% 11,325 7,380 53.5% 0.3% 0.2% International 45 330 -86.4% 1,246 2,664 -53.2% 0.0% 0.1% Total Charter 870 525 65.7% 12,571 10,044 25.2% 0.3% 0.2%
Total Enplaned Passengers 339,628 347,569 -2.3% 4,306,707 4,280,910 0.6%
1 LOUIS ARMSTRONG NEW ORLEANS INTERNATIONAL AIRPORT For the Period Ending December 31, 2013
Enplaned Passengers by Airline
Month % Year-to-Date % Market Share Dec-13 Dec-12 Change 2013 2012 Change 2013 2012 Domestic Scheduled
AirTran Airways 20,489 11,316 81.1% 168,063 162,987 3.1% 3.7% 3.8% American Airlines 32,646 30,712 6.3% 402,946 375,112 7.4% 8.8% 8.7% American Express Carriers 5,014 4,238 18.3% 58,259 50,445 15.5% 1.3% 1.2% American System Total 37,660 34,950 7.8% 461,205 425,557 8.4% 10.0% 9.9% Continental Airlines 21,962 33,567 -34.6% 307,275 385,049 -20.2% 6.7% 8.9% Continental Express Carriers 0 0 0.0% 0 44,660 -100.0% 0.0% 1.0% Continental System Total 21,962 33,567 -34.6% 307,275 429,709 -28.5% 6.7% 10.0% Delta Air Lines 65,517 59,562 10.0% 825,458 807,337 2.2% 18.0% 18.7% Delta Express Carriers 9,260 10,251 -9.7% 119,101 129,005 -7.7% 2.6% 3.0% Delta System Total 74,777 69,813 7.1% 944,559 936,342 0.9% 20.5% 21.7% Frontier 2,958 3,109 -4.9% 45,596 48,339 -5.7% 1.0% 1.1% JetBlue 9,797 8,486 15.4% 120,108 124,890 -3.8% 2.6% 2.9% Spirit 3,128 0 100.0% 36,897 0 100.0% 0.8% 0.0% Southwest 132,422 116,895 13.3% 1,596,720 1,429,257 11.7% 34.7% 33.2% United Airlines 20,481 15,679 30.6% 285,848 234,395 22.0% 6.2% 5.4% United Express Carriers 19,326 12,551 54.0% 197,211 114,908 71.6% 4.3% 2.7% United System Total 39,807 28,230 41.0% 483,059 349,303 38.3% 10.5% 8.1% US Airways 20,099 17,260 16.4% 236,403 228,909 3.3% 5.1% 5.3% US Airways Express Carriers 12,290 13,776 -10.8% 165,045 139,905 18.0% 3.6% 3.2% US Airways System Total 32,389 31,036 4.4% 401,448 368,814 8.8% 8.7% 8.6% Total Domestic Scheduled 375,389 337,402 11.3% 4,564,930 4,275,198 6.8% 99.3% 99.3%
International Scheduled
Air Canada 1,717 1,356 26.6% 18,644 18,938 -1.6% 0.4% 0.4% WestJet 0 0 0.0% 0 0 0.0% 0.0% 0.0% Total Int'l Scheduled 1,717 1,356 26.6% 18,644 18,938 -1.6% 0.4% 0.4%
Charter
Domestic 615 825 -25.5% 11,502 11,325 1.6% 0.3% 0.3% International 0 45 -100.0% 3,137 1,246 151.8% 0.1% 0.0% Total Charter 615 870 -29.3% 14,639 12,571 16.5% 0.3% 0.3%
Total Enplaned Passengers 377,721 339,628 11.2% 4,598,213 4,306,707 6.8%
1 LOUIS ARMSTRONG NEW ORLEANS INTERNATIONAL AIRPORT For the Period Ending December 31, 2014
Enplaned Passengers by Airline
Month Month % Year-to-Date Year-to-Date % Market Share Dec-14 Dec-13 Change 2014 2013 Change 2014 2013
Domestic Scheduled
Alaska Airlines 4,328 0 100.0% 27,947 0 100.0% 0.6% 0.0%
American Airlines 28,356 32,646 -13.1% 405,966 402,946 0.7% 8.3% 8.8% American Express Carriers 5,200 5,014 3.7% 62,938 58,259 8.0% 1.3% 1.3% American System Total 33,556 37,660 -10.9% 468,904 461,205 1.7% 9.6% 10.0% Delta Air Lines 74,613 65,517 13.9% 877,312 825,458 6.3% 17.9% 18.0%
Delta Express Carriers 3,970 9,260 -57.1% 112,840 119,101 -5.3% 2.3% 2.6% Delta System Total 78,583 74,777 5.1% 990,152 944,559 4.8% 20.2% 20.5% Frontier 4,594 2,958 55.3% 46,516 45,596 2.0% 1.0% 1.0%
JetBlue 10,546 9,797 7.6% 118,251 120,108 -1.5% 2.4% 2.6% PEOPLExpress 0 0 0.0% 389 0 100.0% 0.0% 0.0%
Spirit 15,459 3,128 394.2% 80,411 36,897 117.9% 1.6% 0.8% Southwest 155,199 152,911 1.5% 1,910,130 1,764,783 8.2% 39.0% 38.4% United Airlines 42,795 42,443 0.8% 581,118 593,123 -2.0% 11.9% 12.9% United Express Carriers 20,144 19,326 4.2% 220,414 197,211 11.8% 4.5% 4.3%
United System Total 62,939 61,769 1.9% 801,532 790,334 1.4% 16.4% 17.2% US Airways 20,472 20,099 1.9% 257,679 236,403 9.0% 5.3% 5.1%
US Airways Express Carriers 14,395 12,290 17.1% 157,685 165,045 -4.5% 3.2% 3.6% US Airways System Total 34,867 32,389 7.7% 415,364 401,448 3.5% 8.5% 8.7% Total Domestic Scheduled 400,071 375,389 6.6% 4,859,596 4,564,930 6.5% 99.3% 99.3%
International Scheduled
Air Canada 1,485 1,717 -13.5% 20,420 18,644 9.5% 0.4% 0.4%
WestJet 0 0 0.0% 0 0 0.0% 0.0% 0.0% Total Int'l Scheduled 1,485 1,717 -13.5% 20,420 18,644 9.5% 0.4% 0.4%
Charter
Domestic 1,268 615 106.2% 8,575 11,502 -25.4% 0.2% 0.3%
International 0 0 0.0% 3,711 3,137 18.3% 0.1% 0.1% Total Charter 1,268 615 106.2% 12,286 14,639 -16.1% 0.3% 0.3%
Total Enplaned Passengers 402,824 377,721 6.6% 4,892,302 4,598,213 6.4%
Prepared by: C. Robinson Reviewed by: J. Sigmon Reviewed by: R. Anderson 1 LOUIS ARMSTRONG NEW ORLEANS INTERNATIONAL AIRPORT For the Period Ending December 31, 2015
Enplaned Passengers by Airline
Month Month % Year-to-Date Year-to-Date % Market Share Dec-15 Dec-14 Change 2015 2014 Change 2015 2014
Domestic Scheduled Alaska Airlines 4,679 4,328 8.1% 52,613 27,947 88.3% 1.0% 0.6% Allegiant Air 1,225 0 100.0% 18,444 0 100.0% 0.3% 0.0% American Airlines 35,005 28,356 23.4% 385,200 405,966 -5.1% 7.2% 8.3% American Express Carriers 7,496 5,200 44.2% 111,748 62,938 77.6% 2.1% 1.3% American System Total 42,501 33,556 26.7% 496,948 468,904 6.0% 9.3% 9.6% Delta Air Lines 79,406 74,613 6.4% 937,596 877,312 6.9% 17.5% 17.9% Delta Express Carriers 4,896 3,970 23.3% 105,886 112,840 -6.2% 2.0% 2.3% Delta System Total 84,302 78,583 7.3% 1,043,482 990,152 5.4% 19.5% 20.2% Elite Airways 0 0 0.0% 157 0 100.0% 0.0% 0.0% Frontier 8,277 4,594 80.2% 75,677 46,516 62.7% 1.4% 1.0% GLO Airlines 428 0 100.0% 502 0 100.0% 0.0% 0.0% JetBlue 9,898 10,546 -6.1% 131,662 118,251 11.3% 2.5% 2.4% Orange Air 0 0 0.0% 2,450 0 100.0% 0.0% 0.0% PEOPLExpress 0 0 0.0% 0 389 -100.0% 0.0% 0.0% Spirit 21,173 15,459 37.0% 205,185 80,411 155.2% 3.8% 1.6% Southwest 173,932 155,199 12.1% 2,063,999 1,910,130 8.1% 38.6% 39.0% United Airlines 47,140 42,795 10.2% 639,278 581,118 10.0% 12.0% 11.9% United Express Carriers 13,840 20,144 -31.3% 173,253 220,414 -21.4% 3.2% 4.5% United System Total 60,980 62,939 -3.1% 812,531 801,532 1.4% 15.2% 16.4% US Airways 15,740 20,472 -23.1% 236,057 257,679 -8.4% 4.4% 5.3% US Airways Express Carriers 14,836 14,395 3.1% 155,914 157,685 -1.1% 2.9% 3.2% US Airways System Total 30,576 34,867 -12.3% 391,971 415,364 -5.6% 7.3% 8.5% Total Domestic Scheduled 437,971 400,071 9.5% 5,295,621 4,859,596 9.0% 99.1% 99.3%
International Scheduled Air Canada 1,809 1,485 21.8% 22,237 20,420 8.9% 0.4% 0.4% COPA 1,500 0 100.0% 7,853 0 100.0% 0.1% 0.0% Delta Air Lines 0 0 0.0% 1,734 0 100.0% 0.0% 0.0% Elite Airways 0 0 0.0% 145 0 100.0% 0.0% 0.0% Orange Air 0 0 0.0% 1,072 0 100.0% 0.0% 0.0% Southwest 0 0 0.0% 0 0 0.0% 0.0% 0.0% Sunwing Airlines 0 0 0.0% 5,702 0 100.0% 0.1% 0.0% United Airlines 0 0 0.0% 1,765 0 100.0% 0.0% 0.0% Total Int'l Scheduled 3,309 1,485 122.8% 40,508 20,420 98.4% 0.8% 0.4%
Charter Domestic 554 1,268 -56.3% 7,135 8,575 -16.8% 0.1% 0.2% International 0 0 0.0% 1,361 3,711 -63.3% 0.0% 0.1% Total Charter 554 1,268 -56.3% 8,496 12,286 -30.8% 0.2% 0.3%
Total Enplaned Passengers 441,834 402,824 9.7% 5,344,625 4,892,302 9.2%
Prepared by: C. Robinson Reviewed by: K. Bennett-Holmes Reviewed by: R. Anderson 1 LOUIS ARMSTRONG NEW ORLEANS INTERNATIONAL AIRPORT For the Period Ending June 30, 2016
Enplaned Passengers by Airline
Month Month % Year-to-Date Year-to-Date % Market Share Jun-16 Jun-15 Change 2016 2015 Change 2016 2015 Domestic Scheduled Alaska Airlines 4,488 4,598 -2.4% 27,945 26,211 6.6% 1.0% 1.0% Allegiant Air 6,982 1,158 502.9% 28,742 12,766 125.1% 1.0% 0.5% American Airlines (US Air) 55,225 51,771 6.7% 322,649 302,625 6.6% 11.4% 11.2% American Express Carriers 23,674 24,223 -2.3% 136,356 136,406 0.0% 4.8% 5.1% American System Total 78,899 75,994 3.8% 459,005 439,031 4.5% 16.2% 16.3% Delta Air Lines 76,383 79,415 -3.8% 506,833 489,616 3.5% 17.8% 18.2% Delta Express Carriers 11,885 11,678 1.8% 40,480 46,397 -12.8% 1.4% 1.7% Delta System Total 88,268 91,093 -3.1% 547,313 536,013 2.1% 19.3% 19.9% Branson AirExpress 272 0 100.0% 318 0 100.0% 0.0% 0.0% Frontier 6,608 7,273 -9.1% 34,912 31,720 10.1% 1.2% 1.2% GLO Airlines 1,246 0 100.0% 6,989 0 100.0% 0.2% 0.0% JetBlue 13,760 12,134 13.4% 76,333 67,515 13.1% 2.7% 2.5% Orange Air 0 533 -100.0% 0 896 -100.0% 0.0% 0.0% Spirit 28,720 15,773 82.1% 152,862 96,287 58.8% 5.4% 3.6% Southwest 174,877 180,547 -3.1% 1,064,252 1,033,715 3.0% 37.5% 38.4% United Airlines 57,052 47,039 21.3% 340,452 328,144 3.8% 12.0% 12.2% United Express Carriers 10,538 15,979 -34.1% 75,462 94,850 -20.4% 2.7% 3.5% United System Total 67,590 63,018 7.3% 415,914 422,994 -1.7% 14.6% 15.7% US Airways 0 0 0.0% 0 0 0.0% 0.0% 0.0% US Airways Express Carriers 0 0 0.0% 0 0 0.0% 0.0% 0.0% US Airways System Total 0 0 0.0% 0 0 0.0% 0.0% 0.0% Total Domestic Scheduled 471,710 452,121 4.3% 2,814,585 2,667,148 5.5% 99.1% 99.1%
International Scheduled Air Canada 1,962 1,822 7.7% 12,060 11,324 6.5% 0.4% 0.4% COPA 1,891 443 326.9% 7,886 443 1680.1% 0.3% 0.0% Delta Air Lines 476 373 27.6% 1,873 1,265 48.1% 0.1% 0.0% Branson AirExpress 0 0 0.0% 0 0 0.0% 0.0% 0.0% Orange Air 0 220 -100.0% 0 417 -100.0% 0.0% 0.0% Southwest 0 0 0.0% 30 0 100.0% 0.0% 0.0% Sunwing Airlines 0 2,068 -100.0% 0 3,299 -100.0% 0.0% 0.1% United Airlines 0 570 -100.0% 0 926 -100.0% 0.0% 0.0% Total Int'l Scheduled 4,329 5,496 -21.2% 21,849 17,674 23.6% 0.8% 0.7%
Charter Domestic 46 198 -76.8% 2,136 4,394 -51.4% 0.1% 0.2% International 1,738 0 100.0% 2,494 995 150.7% 0.1% 0.0% Total Charter 1,784 198 801.0% 4,630 5,389 -14.1% 0.2% 0.2%
Total Enplaned Passengers 477,823 457,815 4.4% 2,841,064 2,690,211 5.6%
ATTACHMENT “H”
ENPLANEMENT FORECAST
Annual Growth Rate
2015-2016 2016-2025
5.8% 2.5%
Year MSY Annual Enplanement Forecast
2016 5,654,557
2017 5,799,728
2018 6,006,315
2019 6,148,384
2020 6,269,845
2021 6,410,704
2022 6,578,676
2023 6,750,547
2024 6,892,614
2025 7,034,095
SOURCE: J.A. Watts, Inc. MSY Forecast Analysis; June 28, 2016
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “I” OFFICE OF INSPECTOR GENERAL
Office of Inspector General (“OIG”). The New Orleans Office of the Inspector General (OIG) reviews all solicitations and proposals issued by the Airport. The OIG will be actively monitoring all aspects of the design, construction, and operation of the Airport Services.
The Office of Inspector General, Construction Fraud Division (OIG‐CFD) provides full time program oversight to prevent and detect fraud, waste and abuse, and to promote efficiency and effectiveness leading to the realization of the New Orleans Aviation Board (NOAB) Long Term Strategic Infrastructure Plan or North Airport Terminal. These services include the development and implementation of a full fraud detection and prevention program related to NOAB implementation of the Strategic Plan.
The OIG maintains permanent offices on site for 3 professional CFD representatives housed at the New Orleans Airport. These officers include:
● Assistant Inspector General – Construction Fraud Division ● Deputy Assistant Inspector General – Construction Fraud Division ● Program Officer – Construction Fraud Division
Proposers may contact the Office of Inspector General at any time before, during, and after the solicitation process. Any questions or concerns regarding the function of the Construction Fraud Division should be brought to the attention of Peter Smith, Assistant Inspector General for Construction Fraud @ 504‐303‐7553 or [email protected].
For more information regarding the Construction Fraud Division please visit the Office of Inspector General website: http://www.nolaoig.gov.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “J”
PAYMENT PROPOSAL FORM
Name of Proposer: ______
State here the minimum annual guarantee that you propose to pay annually as a concession fee for the news, gift and specialty retail concession package. Proposers will only be awarded one (1) package but Airport is requesting that MAG be submitted for each package. MAG will be set at 80% of net for year prior or 1st year MAG, whichever is higher in subsequent years.
Minimum MAG payment is set as follows:
Package 1: $ 1.7 Million
Package 2: $ 1.7 Million
First Year Minimum Annual Guarantee (MAG):
Package 1: $
Package 2: $
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “K1”
Facility Build-Out Investment Proposal Form
Package 1
Proposer: ______
Initial Capital Investment: $
Facility Build-Out Investment
News, Gift and Proposed Proposed Total Total Specialty Retail Investment Investment Proposed Proposed Investment Investment Package 1 Hard Costs Soft Costs
Total Per Square Foot
Facility Build-Out Investment
Mid-Term Refurbishment Investment
Not less than 85% of the Proposed Facility Build-Out Investment must be expended on construction "hard costs" of materials, direct labor, equipment, finishes, signage, lighting, HVAC, and other construction costs exclusive of "soft costs" of design, engineering, construction supervision, permitting, specialist consultants, overheads, corporate construction administration, and other fees.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “K2”
Facility Build-Out Investment Proposal Form
Package 2
Proposer: ______
Initial Capital Investment: $
Facility Build-Out Investment
News, Gift and Proposed Proposed Total Total Specialty Retail Investment Investment Proposed Proposed Investment Investment Package 2 Hard Costs Soft Costs
Total Per Square Foot
Facility Build-Out Investment
Mid-Term Refurbishment Investment
Not less than 85% of the Proposed Facility Build-Out Investment must be expended on construction "hard costs" of materials, direct labor, equipment, finishes, signage, lighting, HVAC, and other construction costs exclusive of "soft costs" of design, engineering, construction supervision, permitting, specialist consultants, overheads, corporate construction administration, and other fees.
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “L”
NON-COLLUSION AFFIDAVIT
STATE OF
PARISH OF
, being first duly sworn, deposes and says that:
(1) He is Owner, Partner, Officer, Representative or Agent of the Bidder that has submitted the attached Bid;
(2) Such bid is genuine and is not a collusive or sham bid;
(3) Neither the said Bidder nor any of its officers, partners, owners, agents, representatives, employees or parties of interest, including this affiant, has in any way colluded, conspired, connived or agreed, directly or indirectly with any other bidder, firm or person to submit a collusive or sham bid in connection with the Contract for which the attached bid has been submitted or to refrain from bidding in connection with such contract, or has in any manner, directly or indirectly sought by agreement or collusion or communication or conference with any other bidder, or to fix any overhead, profit or cost element of the bid price or the bid price of any other Bidder, or to secure through any advantage for the City of New Orleans/New Orleans Aviation Board of any person interested in the proposed contract; and
(4) The price or prices quoted in the attached bid are fair and proper and are not tainted by any collusion, conspiracy, connivance or unlawful agreement on the part of the Bidder or any of its agents, representatives, owners, employees, or parties in interest, including this affiant.
Signature of (Owner) (Partner) (Office) (Representative) or (Agent)
SWORN TO AND SUBSCRIBED, before me this , day of , 20 .
(Seal) NOTARY PUBLIC
My commission expires .
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “M” BIDDER ATTESTATION
City solicitation no. for
The bidding entity, , attests that no individual partner, incorporator, director, manager, officer, organizer, or member, who has a minimum of a ten percent ownership in the bidding entity, has been convicted of, or has entered a plea of guilty or nolo contendere to any of the following crimes or the equivalent federal crimes after July 2, 2010.
R.S. 38:2227. B.(1) a. Public bribery (R.S. 14:118) b. Corrupt influencing (R.S. 14:120) c. Extortion (R.S. 14:66) d. Money laundering (R.S. 14:230)
R.S. 38:2227. B.(2) e. Theft (R.S. 14:67) f. Identity Theft (R.S. 14:67.16) g. Theft of a business record (R.S. 14:67.20) h. False accounting (R.S. 14:70) i. Issuing worthless checks (R.S. 14:71) j. Bank fraud (R.S. 14:71.1) k. Forgery (R.S. 14:72) l. Contractors; misapplication of payments (R.S. 14:202) m. Malfeasance in office (R.S. 14:134)
Attest (signature): Date
Name and title (print):
Authorized Representative for Bidding Entity (print):
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “N”
SAMPLE AGREEMENT & PROPOSAL AFFIDAVIT
1. The Proposer acknowledges that he/she has carefully examined the RFP, the attached draft Exemplar Lease Agreement, and the subject locations for the proposed Airport concession(s).
2. The Proposer accepts all of the terms and conditions of the RFP, including the Exemplar Lease Agreement.
3. The Proposer acknowledges that if his/her proposal is accepted, he/she will contract with NOAB pursuant to the attached Exemplar Lease Agreement within fifteen (15) business days of receiving the tendered Lease Agreement from NOAB, or the proposal deposit will be forfeited and the next highest rated Proposer awarded the respective package of space.
4. The Proposer affirms that all of the facts set forth in the proposal are true and correct and that all projections are based on good faith estimates.
5. The Proposer affirms that this company, corporation, firm, partnership, or individual has not prepared this proposal in collusion with any other Proposer; Proposer also affirms that the contents of this proposal as to rent, terms, or conditions have not been communicated by the undersigned, nor by any employee or agent of the undersigned, to any other Proposer nor to any other person(s) engaged in this type of business prior to the official opening of the proposal.
6. The Proposer agrees to use its Best Efforts to fully comply with the ACDBE Program, including all reporting requirements and any specific contract goals for ACDBE participation.
7. The Proposer affirms that the NOAB will not be responsible to provide any concession to a Proposer(s) who experiences loss due to the Proposer’s failure to investigate and evaluate all pertinent information necessary to design, construct, and operate this news, gift and specialty retail program.
8. The Proposer affirms that all submitted Proposals will be considered the Proposer’s best and final offer, which cannot be modified or supplemented by the Proposer after submission.
9. The Proposer affirms that they have complied with the “Cone of Silence” in accordance with the advertisement.
10. The Proposer affirms that they have reviewed the construction conform documents.
[SIGNATURE PAGE FOLLOWS]
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
SAMPLE AGREEMENT & PROPOSAL AFFIDAVIT
SIGNATURE PAGE
Name of Proposer:
Signature of Authorized Person:
Printed Name of Authorized Person:
Title:
Business Phone:
Email Address:
Date:
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “O”
PROPOSAL CHECKLIST
Attendance at the Pre-Proposal Conference & Outreach Letter of Intent Proposer Qualifications, Capabilities and Experience Concept Plan Head House Concourse – north section Concourse – south section Duty Free/Duty Paid, Concourse B (ID# 2602) – Package 1 Pre-Security Convenience, Ticketing (ID# 3017) – Package 1 Liquor Store/Market Place Pre-Security, Baggage (ID# 1029) – Package 2 Any Alternates Design and Quality of Improvements Management and Operations Plan Staff and Customer Service Initiatives Marketing Plan ACDBE Compliance Plan & Schedule of Contract Participation and ACDBE Commitment Forms ProForma Operating Statement Facility Build-Out Investment Proposal Form – Package 1 Facility Build-Out Investment Proposal Form – Package 2 Financial Information Other Information Required Forms/Affidavits Non-Collusion Affidavit Bidder Attestation Sample Agreement & Proposal Affidavit Payment Proposal
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “P”
TECHNICAL OVERVIEW
• Architectural Plans
• Electrical Plans
• Fire Protection, Mechanical and Plumbing Plans
• North Terminal Construction Schedule
• North Terminal Construction Work Plan
• Proposed Airport Renderings
Courtesy copies of the above documents are available at: https://www.hightail.com/download/cUJXb3BFdVVrYUFzeHNUQw
Official copies can be downloaded at www.cityblueprint.com
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
ATTACHMENT “Q”
WORKFORCE DEVELOPMENT
New Orleans Aviation Board RFP For News, Gift and Specialty Retail Concession Package City of New Orleans Lease Solicitation #8910-02071 Attachments
Workforce Development Program
As provided in Sec. 70-499 the City of New Orleans established the Hire NOLA program to link quality employment opportunities created by City construction contracts and economic development projects with Local Workers. This program establishes a First Source requirement and Good Faith Effort Participation Goals on “covered projects”. Contractors and their Subcontractors shall commit to the utilization of the First Source system and making Good Faith Efforts to achieve aforementioned local participation goals.
FORM Hire NOLA – 1 GF FORM
Use this form to attest to Hire NOLA First Source and Good Faith Effort goal adherence. Contact the Office of Workforce Development at 504-658-4500 if you require assistance with completing this or any other Hire NOLA form.
This completed form shall be furnished to the Bureau of Purchasing by the two (2) lowest bidders within three (3) days of the bid opening. Workforce Development Program Return to: City of New Orleans Project Name: ______Office of Workforce Development Contractor: ______Via Email: [email protected]
Hire NOLA Bidder Attestation and OWD GF FORM - 1
Hire NOLA Policy As provided in Sec. 70-499 the City of New Orleans established the Hire NOLA program to link quality employment opportunities created by City construction contracts and economic development projects with Local Workers. This program establishes a First Source requirement and Good Faith Effort Participation Goals on “covered projects”. Contractors and their Subcontractors, if applicable, shall commit to making Good Faith Efforts to achieve aforementioned local participation goals. Bidder’s Attestation: My signature certifies that I understand the Hire NOLA program. I further certify and agree that if awarded the contract, as the Contractor I will demonstrate Good Faith Effort to meet the stated Participation Goals. I understand my Good Faith Effort shall include but not be limited to the following: 1. Utilize OWD’s Craft Employee Request Form to inform OWD of any potential vacancies on a “covered project.” 2. Contact qualified individuals from the First Source database, as provided by OWD, for filling potential vacancies. 3. Solicit in the official journal of the City, or any other local publication, and advertise as provided below, any potential vacancies for local workforce candidates if First Source individuals are ultimately not qualified or available. 4. Advertise vacancies at local Union/Hiring Halls of registered apprenticeship programs, if applicable. 5. Advertise vacancies at the job site. 6. Conduct meeting(s) with potential managers and subcontractors to educate said individuals regarding the Local Hire goals provided herein. 7. Utilize registered apprenticeship programs at a 1 apprentice to 3 journeyman ratio, if applicable and available.
X X X Respondents's Signature & Date Respondent's Name Respondent's Title Workforce Development Program
As provided in Sec. 70-499 the City of New Orleans established the Hire NOLA program to link quality employment opportunities created by City construction contracts and economic development projects with Local Workers. This program establishes a First Source requirement and Good Faith Effort Participation Goals on “covered projects”. Contractors and their Subcontractors shall commit to the utilization of the First Source system and making Good Faith Efforts to achieve aforementioned local participation goals.
FORM Hire NOLA – 2 MANPOWER UTILIZATION SCHEDULE
Use this form/template to provide manpower utilization projections for each craft throughout the life of the relevant project. Contact the Office of Workforce Development at 504-658-4500 if you require assistance with completing this or any other Hire NOLA form.
This completed form shall be furnished to the Bureau of Purchasing by the two (2) lowest bidders within three (3) days of the bid opening. Workforce Development Program Return to: City of New Orleans Project Name: ______Office of Workforce Development Contractor: ______Via Email: [email protected] Authorized Representative: ______Hire NOLA Manpower Utilization Schedule By Craft FORM - 2
Month Man Count Man Hours Craft Type # of Craft Craft Type #of Craft Craft Type # of Craft Craft Type # of Craft Workers Workers Workers Workers Workforce Development Program
As provided in Sec. 70-499 the City of New Orleans established the Hire NOLA program to link quality employment opportunities created by City construction contracts and economic development projects with Local Workers. This program establishes a First Source requirement and Good Faith Effort Participation Goals on “covered projects”. Contractors and their Subcontractors shall commit to the utilization of the First Source system and making Good Faith Efforts to achieve aforementioned local participation goals.
FORM Hire NOLA – 3 LOCAL HIRE PLAN
Use this form/template to provide a detailed plan of how you intend to meet the local participation goals and project the number of new hires required for each craft utilized. Contact the Office of Workforce Development at 504-658-4500 if you require assistance with completing this or any other Hire NOLA form.
This completed form shall be furnished to the Bureau of Purchasing by the two (2) lowest bidders within three (3) days of the bid opening. Workforce Development Program Return to: City of New Orleans Project Name ______Office of Workforce Development Contractor: ______Via Email: [email protected] Authorized Representative: ______
Hire NOLA Local - Hire Plan FORM – 3
Please fill out the tables below based on the information provided in the submitted with the Manpower Utilization Schedule.
Anticipated # Anticipated # Anticipated # of Work Hours of Work Anticipated # Anticipated # of of Core Contractor Trade Completed by Hours of New Hires Apprentices Employees on Core Completed by Required Required Project Employees New Hires Workforce Development Program MAYOR’S OFFICE OF WORKFORCE DEVELOPMENT CITY OF NEW ORLEANS
Administrative Procedure to Address Non-Compliance with Workforce Development and First-Source Hiring Requirements.
Effective Date: July 22, 2016
Purpose:
This document outlines the procedures for addressing issues concerning compliance with the requirement to use The Office of Workforce Development as the first source for recruitment, referral, and placement of all new hires for employment opportunities and the hiring requirements under Workforce Development.
Administrative Notice of Non-Compliance:
Non-compliance
Non-compliance findings are cited when there is documented evidence of hiring done by the Lessee and/or its subtenants (all tiers) and/or contractors (all tiers) of the Lessee or subtenants performing work at the Airport Hotel or Terminal (contractors) that has not gone through the official First-Source process and has not meet its obligations under the Workforce Development program.
The City/NOAB shall determine whether the Lessee and/or its subtenants (all tiers) and/or contractors (all tiers) have complied with the First-Source or Workforce Development requirements of the Lease with the City/NOAB. If the City/NOAB determines that the Lessee and/or its subtenants (all tiers) and/or contractors (all tiers) failed to comply with the provisions of the First Source or Workforce Development requirements, the Lessee and/or its subtenants (all tiers) has the burden of proving compliance.
The Lessee has the responsibility to ensure its subtenants (all tiers) and contractors (all tiers) comply with the First-Source and Workforce Development program and requirements.
Protocol for addressing Non-compliance
In the event the City/NOAB believes the Lessee and/or its subtenants (any tier) and/or contractors (any tier) may not be in compliance with the First-Source Requirements or Workforce Development requirements of the Lease with the City/NOAB, the below procedure will be followed:
(1) The Director of The Office of Workforce Development or designee shall cause to be delivered to the Employer and CMAR a written and electronic “Notice of Non-compliance.” This Notice shall specify the matters which constitute the non-compliance; the specific action required to correct the non- compliance and/or a request for the contractor to submit a proposed plan to cure and remediate the non-compliance; and the time period during which such correction shall occur. If the Notice of Non-Compliance includes specific action required to correct the non-compliance, the Lessee and/or its subtenants (all tiers) and/or contractors (all tiers) shall have no more than thirty (30) days after
Administrative Procedure to Address Non-Compliance with Workforce Development and First-Source Hiring Requirements. Page 1 of 3 Workforce Development Program MAYOR’S OFFICE OF WORKFORCE DEVELOPMENT CITY OF NEW ORLEANS
receipt of the Notice by the Lessee and/or its subtenants (all tiers) and/or contractors (all tiers) to take the required corrective action.
(2) If the Lessee and/or its subtenants (all tiers) and/or contractors (all tiers) disagree with the Notice and/or the corrective action set forth in a Notice of Non-Compliance, the disagreeing Lessee and/or subtenants shall have the burden of proving compliance with the provisions of the Ordinance and shall submit any evidence and argument to the Director of The Office of Workforce Development or designee to establish compliance.
(3) In the event the Director of The Office of Workforce Development or designee subsequently agrees that compliance has occurred, the Director of The Office of Workforce Development or designee shall cause to be delivered promptly to the Lessee and/or its subtenants and/or contractors a written “Notice of Correction of Non-compliance,” specifying the original noncompliance which has been corrected.
(4) In the event the Director of The Office of Workforce Development or designee does not agree that compliance has occurred, the Director of The Office of Workforce Development or designee shall promptly notify the Employer by a written “Notice of Failure to Correct Non-compliance,” describing the facts constituting the non-compliance.
(5) All instances of non-compliance shall be reported to the Director of Aviation and to the Aviation Board via Non-compliance Finding Report, outlining the specific methodology and findings.
Should the Lessee and/or its subtenants and/or contractors fail to comply with the “Notice of Non- compliance” as specified above, and a final determination of non-compliance is made, the City/NOAB may exercise any of its powers available under the agreement between the NOAB/City and the CMAR, or as may otherwise be provided by law.
(6) That failure of the Lessee and/or its subtenants and/or its contractors to adhere to the First Source or Workforce Development requirement and/or agreed upon remediation plans will result in inconvenience to the public and will adversely affect the impact of the Project. Although quantification of damages is difficult, the Lessee and/or subtenants and/or its subcontractors agree that the stipulated damages are reasonable estimates of the actual damages that would be incurred by the public and the NOAB for the specified breaches of the Project. Further the Lessee and/or its subcontractor and/or subtenants agrees to pay the damages in accordance with the rates or in amounts specified below.
Infraction 1st Violation 2nd Violation 3rd Violation Failure to adhere to agreed upon Written $500/day $1000/day Remediation Plan Warning Failure to comply with First Source Written $500/per $1000/per Process Warning infraction infraction
Administrative Procedure to Address Non-Compliance with Workforce Development and First-Source Hiring Requirements. Page 2 of 3 Workforce Development Program MAYOR’S OFFICE OF WORKFORCE DEVELOPMENT CITY OF NEW ORLEANS
(7) Once the Director of The Office of Workforce Development approves a plan to cure any non- compliance, failure of the Lessee and/or its subtenants (all tiers) and/or contractors (all tiers) to adhere to the compliance plan shall be considered a breach of the Airport Contract.
(8) To the extent permitted by law, the City shall keep a record of all violations of the First Source requirement. A history of contract violation may be a factor which is considered by the City when deciding upon any future awards of contracts to the affected and may form the basis for denying any future contracts to the affected.
(9) The Lessee has the responsibility to ensure its subtenants (all tiers) and its contractors (all tiers) comply with the First Source requirements and the Workforce Development program. Lessee shall include a copy of this policy as part of all subleases and contracts at the Airport. The Lessee shall require all sublessees and contractors to include a copy of this policy as part of all subleases and subcontracts contracts at the Airport.
Administrative Procedure to Address Non-Compliance with Workforce Development and First-Source Hiring Requirements. Page 3 of 3