ATTACHMENT “4”

COMMON USE AIRPORT LOUNGE CONCESSION AGREEMENT

PALM BEACH INTERNATIONAL AIPORT

(RFP NO. PB 18-5)

COMMON USE AIRPORT LOUNGE CONCESSION AGREEMENT

Department of Airports

Palm Beach County, a political subdivision of the State of Florida, and

TABLE OF CONTENTS

ARTICLE 1 - RECITALS

ARTICLE 2 - DEFINITIONS

ARTICLE 3 - EFFECTIVE DATE AND TERM

ARTICLE 4 - PRIVILEGES AND PREMISES

ARTICLE 5 - CONCESSION FEE

ARTICLE 6 - OPERATIONAL AND SERVICE STANDARDS

ARTICLE 7 - CONSTRUCTION OF IMPROVEMENTS

ARTICLE 8 - MAINTENANCE AND REPAIR

ARTICLE 9 - SIGNS, DISPLAYS AND ADVERTISING

ARTICLE 10 - UTILITIES

ARTICLE 11 - TITLE TO IMPROVEMENTS

ARTICLE 12 - AIRPORT SECURITY PROGRAM

ARTICLE 13 - INSURANCE

ARTICLE 14 - DAMAGE OR DESTRUCTION

ARTICLE 15 - INDEMNIFICATION

ARTICLE 16 - EXPIRATION OF AGREEMENT, DEFAULT, AND REMEDIES

ARTICLE 17 - ASSIGNMENT AND TRANSFER

ARTICLE 18 - LAWS, REGULATIONS, PERMITS AND TAXES

ARTICLE 19 - DISCLAIMER OF LIABILITY

ARTICLE 20 - NOTICES

ARTICLE 21 - GOVERNMENTAL RESTRICTIONS

ARTICLE 22 - NON-DISCRIMINATION

ARTICLE 23 - MISCELLANEOUS

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RFP PB 18-5

COMMON USE AIRPORT LOUNGE CONCESSION AGREEMENT

THIS COMMON USE AIRPORT LOUNGE CONCESSION AGREEMENT (this “Agreement”) is made and entered into by and between Palm Beach County, a political subdivision of the State of Florida (“County”), and__________________, a _______________ organized under the laws of the State of , having its office and principal place of business at ( “Concessionaire”).

W I T N E S S E T H:

WHEREAS, County, by and through its Department of Airports, owns the Palm Beach International Airport, which is located in Palm Beach County, Florida; and

WHEREAS, Concessionaire submitted a proposal in response to County’s Request for Proposals No. PB 18-5, which opened on April 4, 2018; and

WHEREAS, Concessionaire has indicated a willingness and demonstrated the ability to properly develop, finance, operate, and manage a first-class common use airport lounge in accordance with the terms of this Agreement.

NOW, THEREFORE, in consideration of the premises and of the mutual convents herein contained, and for such other good and valuable consideration, the receipt of which the parties hereby expressly acknowledge, the parties hereto covenant and agree to the following terms and conditions:

ARTICLE 1 - RECITALS

The foregoing recitals are true and correct and are hereby incorporated herein by reference.

ARTICLE 2 - DEFINITIONS

The following words, terms, and phrases wherever used in this Agreement shall have the meanings set forth in this Article and the meanings shall apply to both singular and plural forms of such words, terms and phrases.

2.01 “Agreement” means this Common Use Airport Lounge Concession Agreement and all exhibits hereto. Words such as “herein”, “hereafter”, “hereof”, “hereto”, hereby” and “hereunder” when used with reference to this Agreement, refer to this Agreement as a whole, unless the context otherwise requires.

2.02 “Airport” means the Palm Beach International Airport located in Palm Beach County, Florida.

2.03 “Airport Concession Disadvantaged Business Enterprise” means an Airport Concession Disadvantaged Business Enterprise as defined in Title 49, Part 23 of the Code of Regulations, as now or hereafter amended or any successor regulation.

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2.04 “Airport Director” means the Director or Acting Director of the Palm Beach County

Department of Airports.

2.05 “Annual Report” has the meaning provided in Section 5.10.

2.06 “Assignment” has the meaning provided in Article 17.

2.07 “Bond” has the meaning provided in Section 5.12.

2.08 “Bond Resolution” means the Palm Beach County Airport System Revenue Bond

Resolution dated April 3, 1984 (R-84-427), as amended and supplemented, which is hereby incorporated herein by reference and made a part hereof.

2.09 “Business Day” means any day other than a Saturday, Sunday or County holiday. Use of the word “day” as opposed to Business Day means a calendar day.

2.10 “Comparable Locations” has the meaning provided in Section 6.06.

2.11 “Concession” means the common use airport lounge concession operated by Concessionaire pursuant to this Agreement.

2.12 “Concession Fee” has the meaning provided in Section 5.01.

2.13 “Concessionaire Party” means Concessionaire and its subtenants, contractors, suppliers, employees, officers, licensees, agents and invitees.

2.14 “Contract Year” means the twelve (12) month period, beginning on _________, 2018, and ending on ___________, 2019, and each twelve (12) month period thereafter, until the termination or earlier expiration of this Agreement.

2.15 “County” has the meaning provided in the preamble to this Agreement.

2.16 “County Party” means the County and its elected officers, employees and agents.

2.17 “Damages” has the meaning provided in Article 15.

2.18 “Date of Beneficial Occupancy” has the meaning provided in Section 3.02.

2.19 “Day” means a calendar day of twenty four (24) hours measured from midnight to the next midnight.

2.20 “Department” means the Palm Beach County Department of Airports.

2.21 “Effective Date” has the meaning provided in Section 3.01.

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2.22 “FAA” means the Federal Aviation Administration.

2.23 “Gross Revenues” means all revenues of the business conducted by Concessionaire upon the Premises regardless of where, how (cash or credit), or by whom payment is made, including, without limitation, all revenues from: (a) fees or charges imposed for access to the Premises for use by Concessionaire’s customers; (b) the sale of food and beverages, including alcoholic beverages; (c) the sale of any goods or services; (d) advertising; and

(e) fees, rentals or other amounts paid or payable to Concessionaire for the use or occupancy of any portion of the Premises. For purposes of this Agreement, the term “Gross Revenues” as to alcohol sales shall mean all amounts paid to Concessionaire for alcohol that is not provided on a complimentary basis to the customer as a part of the fee paid to Concessionaire to access the Premises. Unless revenues are expressly and specifically excluded from Gross Revenues, all revenues payable to Concessionaire that are derived from, or that arise out of or become payable on account of the business conducted by Concessionaire upon the Premises shall be included in Gross Revenues. In the event Concessionaire fails or elects not to charge or collect any fees, amounts for goods or services or any other amount which would otherwise be included in Gross Revenues, the amount customarily charged by Concessionaire shall be included in the calculation of Gross Revenues, unless such amount is expressly and specifically excluded from Gross Revenues pursuant to this definition. No deduction shall be made from Gross Revenues by reason of any credit loss, charge, or deduction that may be incurred by reason of the acceptance or use of credit cards or other credit or charge arrangements.

Gross Revenues shall not include:

A. Federal, state, county/city, and municipal sales taxes or other taxes separately stated and collected from customers and directly paid by Concessionaire to the governmental entity;

B. Any gratuities collected for the benefit of, and paid to, Concessionaire’s personnel;

C. Rebates, discounts, or credits of a similar nature (not including charge or credit card discounts);

D. Casualty, liability or other insurance proceeds; and

E. Cash or credit refunds made for any returned merchandise accepted by

Concessionaire and previously included in Gross Revenues.

2.24 “Initial Leasehold Improvements” has the meaning provided in Section 7.02.

2.25 “Investment Report” has the meaning provided in Section 7.03(C).

2.26 “Letter of Credit” has the meaning provided in Section 5.12.

2.27 “Minimum Annual Guarantee” has the meaning provided in Section 5.02(A).

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2.28 “Minimum Investment” has the meaning provided in Section 7.02.

2.29 “Monthly Privilege Fee” means the sum of ___ percent ( __%) of monthly Gross

Revenues, excluding Gross Revenues from alcohol sales, and ____ percent (__%) of monthly Gross Revenues from alcohol sales.

2.30 “Monthly Report” has the meaning provided for in Section 5.08.

2.31 “Net Book Value” has the meaning provided for in Section 16.05.

2.32 “Plans” has the meaning provided for in Section 7.03(A).

2.33 “Premises” means the building space more particularly identified in the attached Exhibit “A”, located on the 2nd level of the Palm Beach International Airport Terminal.

2.34 “Price Survey” has the meaning provided in Section 6.06.

2.35 “Privilege Fee” means the sum of ___ percent (__%) of annual Gross Revenues, excluding Gross Revenues from alcohol sales, and ____ percent (__%) of annual Gross Revenues from alcohol sales.

2.36 “Proposal” means the proposal submitted by Concessionaire in response to the RFP.

2.37 “Public Areas” has the meaning provided in Section 4.02(A).

2.38 “Request for Proposals” or “RFP” means RFP No. PB 18-5 for Common Use Airport

Lounge Concession Agreement opened on April 4, 2018.

2.39 “Security Deposit” has the meaning provided in Section 5.12.

2.40 “Term” has the meaning provided in Section 3.02.

2.41 “Terminal” means the Airport’s commercial passenger terminal building.

2.42 “TSA” means the Transportation Security Administration.

ARTICLE 3 - EFFECTIVE DATE AND TERM

3.01 Effective Date. This Agreement is expressly contingent upon the approval of the Palm

Beach County Board of County Commissioners and shall become effective when signed by all parties and approved by the Palm Beach County Board of County Commissioners (“Effective Date”).

3.02 Term. The term of this Agreement shall commence on the earlier of: (a) substantial completion of the Initial Leasehold Improvements; (b) the date Concessionaire

- 5 -commences using the Premises (or any part thereof) for the conduct of its business (other than construction); or (c) twelve (12) months from the Effective Date (or such later date agreed to by County pursuant to Section 7.02) (“Date of Beneficial Occupancy”) and expire five (5) years thereafter, unless sooner terminated pursuant to the terms of this Agreement (“Term”).

3.03 Transition at End of Term. Concessionaire shall cooperate in good faith with County for the transition of the concessions to new concessionaire(s), if applicable, at the end of the Term of this Agreement to ensure quality, uninterrupted concession services remain available in the Terminal at all times. The parties shall meet one hundred twenty days

(120) prior to the end of the Term to establish a plan for the orderly transition of the concession spaces to new concessionaire(s), if requested by the Department.

ARTICLE 4 - PRIVILEGES AND PREMISES

4.01 Description of Specific Privileges, Uses and Rights. Subject to the terms and conditions of this Agreement, Concessionaire shall have the non-exclusive right and obligation to develop, operate, manage and maintain a first-class common use airport lounge within the Premises. Concessionaire shall not engage in any business activity on the Premises other than as permitted herein. Concessionaire shall not use the Premises for any illegal trade or business, or for any other illegal purpose.

4.02 Description of General Privileges, Uses and Rights. In addition to the specific privileges granted pursuant to Section 4.01, County hereby grants to Concessionaire:

A. the non-exclusive use of the Public Areas within the Terminal for Concessionaire, its employees, contractors, patrons, invitees, suppliers of service, agents and authorized sublessees, if any, in connection with its operations hereunder. For purposes of this Agreement, “Public Areas” means the public corridors, restrooms and other areas within the Terminal that the general public has the right to access.

Public Areas shall at all times be subject to the exclusive control and management of County. County shall have the full right and authority to make all rules and regulations as County may in its sole discretion deem proper, pertaining to the proper operation and maintenance of the Public Areas; and

B. the nonexclusive right of ingress to and egress from the Terminal over and across public roadways and walkways serving the Airport for Concessionaire, its employees, contractors, patrons, invitees, suppliers of service, agents and authorized sublessees, if any, in connection with its operations hereunder.

Nothing herein contained shall be construed to grant to Concessionaire, its employees, contractors, patrons, invitees, suppliers of service, agents or authorized sublessees, if any, the right to use or occupy any space or area at the Airport improved or unimproved that is leased or assigned to a third party, or, except as expressly set forth in Section 4.02(A) and

(B) above, County has not designated for Concessionaire’s use pursuant to this

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Agreement. The general privileges, uses and rights granted in this Section shall be subject to the terms, conditions and covenants set forth herein.

4.03 Employee Parking. Parking for Concessionaire’s employees shall be provided by County on a space available basis in the employee parking area in common with employees of other operators and tenants at the Airport. County shall charge Concessionaire a parking fee for the use by its employees of the employee surface parking area. The current employee parking rate is One Hundred Six Dollars and 00/100 ($106.00) per space per year. County may change the parking fee, from time to time, upon thirty (30) days prior written notice to Concessionaire. Parking fees shall be assessed to the Concessionaire on an annual basis and shall be paid by Concessionaire within fifteen (15) days of receipt of the parking invoice.

4.04 Condition of Premises. County makes no representations or warranties whatsoever as to the condition of the Premises or the Airport, including, but not limited to, any equipment, utilities or fixtures currently installed within the Premises, whether such equipment, utilities or fixtures are in compliance with applicable laws or the fitness of any such equipment or fixtures fitness for a particular purpose. The Premises is being provided for Concessionaire’s use in is “AS IS CONDITION” and “WITH ALL FAULTS.”

Concessionaire shall not be entitled to any adjustment of any fees or charges payable hereunder on account of the condition of any improvements or any failure of any improvements to be in working order or because of any necessity of Concessionaire to repair or take corrective actions with respect to any improvements.

4.05 Conflicts with Other Concessions. Notwithstanding any provision of this Agreement to the contrary, Concessionaire understands and agrees that, in the event of a conflict between Concessionaire and any other lessee or concessionaire in the Terminal as to specific items to be sold or services to be provided, the Department shall make the final determination as to which product or service may be sold or provided by each lessee or concessionaire.

4.06 Changes to Airport. Concessionaire acknowledges and agrees that: (a) County shall have the right at all times to change, alter, expand, and contract the Airport, including the Terminal; (b) County has made no representations, warranties, or covenants to Concessionaire regarding the design, construction, pedestrian traffic, enplanements, airline locations, or views of the Airport or the Premises. Without limiting the generality of the foregoing, Concessionaire acknowledges and agrees that the Airport: (a) is currently undergoing, and may from time to time hereafter undergo, renovation, construction, and other Airport modifications; and (b) may from time to time adopt rules and regulations relating to security and other operational concerns that may affect Concessionaire’s business. Although County 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 concession operations located at the Airport. Such construction and renovation programs might involve barricading, materials storage, noise, the presence of workers and equipment, rearrangement, utility interruptions, and other inconveniences normally associated with construction and renovation. Although County

- 7 -will use reasonable efforts to minimize the effect of the such changes on Concessionaire’s business, Concessionaire acknowledges that such activity may have some effect on retail operations located at the Airport, and Concessionaire shall not be entitled to any rent credit or other compensation therefor. At any time and from time to time, County may, without the consent of Concessionaire, and without affecting Concessionaire’s obligations under this Agreement, at County’s sole discretion, (a) change the shape, size, location, number and extent of the improvements in any portion of the Airport, including without limitation the concourses, piers, boarding areas, concession areas and security areas located within the Terminal, (b) build additional stories above or below the Airport buildings, including of the Terminal, and (c) eliminate or relocate public entrances to the Premises so long as there is at all times one public entrance to the Premises. Without limiting waivers set forth elsewhere in this Agreement, Concessionaire hereby waives all claims against County and releases County from all losses, liabilities, judgments, suits, claims, damages, costs and expenses (including reasonable attorneys’ fees and court costs), of any kind or nature that Concessionaire suffers or incurs arising out of or in connection with any changes to the Airport or any portion of the Airport and Concessionaire further agrees that Concessionaire will not be entitled to any abatement of the Concession Fee or any other relief in connection with any changes to the Airport or any portion of the Airport.

ARTICLE 5 - CONCESSION FEE

5.01 Concession Fee. Concessionaire shall pay to County annual privilege fees equal to the greater of the Minimum Annual Guarantee or Privilege Fee (“Concession Fee”). The Concession Fee shall be payable on a monthly basis as provided for herein and shall be reconciled on an annual basis in accordance with the provisions of Section 5.10 below.

5.02 Minimum Annual Guarantee.

A. The Minimum Annual Guarantee for each Contract Year shall be as follows:

Time Period Minimum Annual Guarantee First Contract Year Sixty-Five Thousand Dollars ($65,000.00)

Second Contract Year and each Contract Year thereafter

Eighty five percent (85%) of the Privilege Fee for the preceding Contract Year, or the Minimum Annual Guarantee for the preceding Contract Year, whichever is higher.

B. Commencing on the Date of Beneficial Occupancy and on the first (1st) day of each and every month thereafter, Concessionaire shall pay to County one-twelfth (1/12) of the Minimum Annual Guarantee for the applicable Contract Year, without demand, deduction, holdback or setoff.

5.03 Privilege Fee. In the event the Monthly Privilege Fee is greater than (1/12) of the

Minimum Annual Guarantee, Concessionaire shall pay the difference to County. Such payment shall be delivered with the Monthly Transaction Report required by Section

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5.08 on or before the twentieth (20th) day of each and every month, without demand, deduction or setoff, throughout the Term of this Agreement.

5.04 Unpaid Fees. In the event Concessionaire fails to make payment of any fees or charges when due and payable in accordance with the terms of this Agreement, the Department may require Concessionaire to pay interest at the rate of one and one half percent (1.5%) per month on late payments from the date due until the date payment is received by the Department. Notwithstanding the foregoing, County shall not be prevented from terminating this Agreement for default in payment due to County pursuant to this Agreement or from exercising any other remedies contained herein or implied by law.

5.05 Form of Payment. All payments due under this Agreement shall be paid in lawful money of the United States of America, without offset or deduction or prior notice or demand.

No payment by Concessionaire or receipt by County of a lesser amount than the payment due shall be deemed to be other than on account of the payment due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed to establish an accord and satisfaction, and County may accept such check or payment without prejudice to County’s right to recover the balance of said amount due or pursue any other remedy available under this Agreement.

5.06 Sales and Use Tax. Concessionaire shall pay monthly to County any sales, use or other tax, or any imposition in lieu thereof (excluding State and/or Federal Income Tax) now or hereinafter imposed upon the fees, use or occupancy of the Airport imposed by the United States of America, the State of Florida, or Palm Beach County, notwithstanding the fact that the statute, rule, ordinance or enactment imposing the same may endeavor to impose the tax on County.

5.07 Place of Payments. All payments required to be made by Concessionaire under this

Agreement shall be made payable to “Palm Beach County,” and shall be delivered to the Finance Division, Department of Airports, 846 Palm Beach International Airport, West Palm Beach, Florida 33406-1470, or to such other office or address as may be substituted therefor.

5.08 Monthly Transaction Report. Within twenty (20) days after close of each month throughout the Term of this Agreement, Concessionaire shall submit to the Department, in a form and detail satisfactory to the Department, a monthly report that includes the following information for the preceding calendar month: (a) the total number of customers utilizing the Premises; (b) the total monthly Gross Revenues, excluding Gross Revenues from alcohol sales; (c) the total monthly Gross Revenues from alcohol sales;

(d) the Minimum Monthly Privilege Fee; (e) the amount payable to County for the preceding calendar month; and (f) separately identifies any exclusions from Gross Revenues (“Monthly Report”). The Department may require the monthly report to be submitted electronically.

5.09 Accounting Records. Concessionaire shall keep, throughout the Term of this Agreement, all books of accounts and records customarily used in this type of operation, and as from

- 9 -time to time may be required by the Department, in accordance with Generally Accepted Accounting Principles prescribed by the American Institute of Certified Public Accountants or any successor agency thereto. Such books of accounts and records shall be retained and be available for three (3) years from the end of each Contract Year, including three (3) years following the expiration or termination of this Agreement.

County shall have the right to audit and examine during normal business hours all such books of accounts and records relating to Concessionaire’s operations hereunder. If the books of accounts and records are kept at locations other than the Airport, Concessionaire shall, at its sole cost and expense, arrange for them to be brought to a location convenient to the auditors for County in order for County to conduct the audits and inspections as set forth in this Article. Failure to maintain books of accounts and records as required under this Section shall be deemed to be a material breach of this Agreement. The obligations arising under this Section shall survive the expiration or earlier termination of this Agreement

5.10 Annual Report. Within ninety (90) days after the end of each Contract Year, Concessionaire shall provide County with an annual audit report covering the preceding Contract Year (“Annual Report”). The Annual Report shall be in a form reasonably satisfactory to County and shall be prepared by an independent Certified Public Accountant, not a regular employee of Concessionaire, in accordance with Generally Accepted Auditing Standards prescribed by the American Institute of Certified Public Accountants or any successor agency thereto. The Annual Report shall include the following:

A. A schedule detailing Gross Revenues, excluding Gross Revenues from alcohol sales, for the preceding Contract Year by category and month, which shall also detail any exclusion(s) from Gross Revenues;

B. A schedule detailing Gross Revenues from alcohol sales, for the preceding

Contract Year by month, which shall also detail any exclusion(s) from Gross Revenues;

C. A schedule detailing the payments to County by Concessionaire during the preceding Contract Year by month; and

D. A calculation of the amount owed to either party, if any.

The Annual Report shall include an opinion regarding the information contained in schedules listed above. The Annual Report shall not contain a qualified opinion, an adverse opinion, or a disclaimer of opinion, as defined by the American Institute of Certified Public Accountants or any successor agency thereto, regarding the information contained in the required schedules. If the Annual Report indicates that the amount (together with any sales taxes thereon) due and owing for any Contract Year is greater than the amount paid by Concessionaire to County during such Contract Year, Concessionaire shall pay the difference to County with the Annual Report. If the amount paid by Concessionaire to County during any Contract Year exceeds the amount due and

- 10 -owing for such Contract Year, County shall credit the overpayment in the following order: (a) against any past due amounts owed to County by Concessionaire, including interest and late fees; (b) against currently outstanding, but not yet due, payments owed to County by Concessionaire; and (c) against any other sums payable by Concessionaire to County. Notwithstanding the foregoing, in the event of an overpayment by Concessionaire during the last Contract Year, County shall credit the overpayment against any remaining amounts owed to County, including interest and late fees, and refund to Concessionaire any overpayment amount in excess of the credit. The obligations arising under this paragraph shall survive the expiration or earlier termination of this Agreement until satisfied.

5.11 Audit by County. Notwithstanding any provision in this Agreement to the contrary, County or its representative(s) may at any time perform audits of all or selected operations performed by Concessionaire under the terms of this Agreement. In order to facilitate the audit performed by County, Concessionaire shall make suitable arrangements with the Certified Public Accountant, who is responsible for preparing the audit report on behalf of Concessionaire pursuant to Section 5.10 above, to make available to County’s representative(s) any and all working papers relevant to the audit performed by the Certified Public Accountant. County or its representative(s) shall make available to Concessionaire a copy of the audit report prepared by or on behalf of County.

Concessionaire shall have thirty (30) days from receipt of the audit report from County or its representative(s) to provide a written response to the Department regarding the audit report. Concessionaire agrees that failure of Concessionaire to submit a written response to the audit report in accordance with the requirements of this Section shall constitute acceptance of the audit report as issued.

5.12 Security for Payment. Prior to the Effective Date, Concessionaire shall post a security deposit (“Security Deposit”) with County in an amount equal to fifty percent (50%) of the Minimum Annual Guarantee. The Security Deposit shall thereafter be maintained in an amount equal to fifty percent (50%) of the Minimum Annual Guarantee for the then-current Contract Year; provided, however, if the amount of a Security Deposit increase resulting from the adjustment of the Minimum Annual Guarantee would be less than fifteen percent (15%) of the amount of Security Deposit currently held, no increase in the Security Deposit shall be required. The Security Deposit shall serve as security for the payment of all sums due to County and shall also secure the performance of all obligations of Concessionaire hereunder. The Security Deposit shall be either in the form of a clean, Irrevocable Letter of Credit (“Letter of Credit”) or a Surety Bond (“Bond”) in form and substance satisfactory to County. In the event of any failure by Concessionaire to pay any fees, sums or charges to County when due or upon any other failure to perform any of its obligations or other default under this Agreement, then, in addition to any other rights and remedies available to County at law or in equity, County shall be entitled to draw on the Security Deposit and apply same to all amounts owed. Upon notice of any such draw, Concessionaire shall immediately replace the Security Deposit with a new Letter of Credit or Bond in the full amount of the Security Deposit required hereunder. A Security Deposit shall be kept in full force and effect throughout the Term of this Agreement and for a period of six (6) months after the termination of this Agreement.

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Not less than thirty (30) calendar days prior to any expiration date of a Letter of Credit or Bond, Concessionaire shall submit evidence in form satisfactory to County that such security instrument has been renewed. Failure to renew a Letter of Credit or Bond as required by this Section shall: (1) entitle County to draw down the full amount of such Security Deposit, and (2) constitute a default of this Agreement entitling County to all available remedies. The Security Deposit shall not be returned to Concessionaire until all obligations under this Agreement are performed and satisfied. Prior to consent from County to any assignment of this Agreement by Concessionaire, Concessionaire’s assignee shall be required to provide a Security Deposit to County in accordance with the terms and conditions of this Section. The obligations arising under this Section shall survive the expiration or earlier termination of this Agreement.

5.13 Inspector General. Palm Beach County has established the Office of the Inspector

General in Palm Beach County Code, Section 2-421 - 2-440, as may be amended. The Inspector General’s authority includes but is not limited to the power to review past, present and proposed County contracts, transactions, accounts and records, to require the production of records, and to audit, investigate, monitor, and inspect the activities of the Concessionaire, its officers, agents, employees and lobbyists in order to ensure compliance with contract requirements and detect corruption and fraud. Failure to cooperate with the Inspector General or interfering with or impeding any investigation shall be in violation of Palm Beach County Code, Section 2-421 - 2-440, and punished pursuant to Section 125.69, Florida Statutes, in the same manner as a second degree misdemeanor.

ARTICLE 6 - OPERATIONAL AND SERVICE STANDARDS

6.01 Hours of Operation. Concessionaire shall actively operate the Concession in the Premises in a business-like manner. The Premises shall be open to serve the public seven (7) days per week at least thirty (30) minutes before the first departing flight through the last departing flight on Concourse A/B or such other hours as may be approved by the Department in writing. The hours of operation may be modified from time to time upon fifteen (15) days prior written notice from the Department to Concessionaire. No facilities shall be blocked off or closed at any time during the designated minimum hours of operation. The Concession shall remain open to accommodate flight delays that are expected to last more than thirty (30) minutes to serve Airport customers.

6.02 Minimum Service Requirements. Concessionaire shall provide the following services and amenities at the Premises: comfortable, upscale furnishings; high quality, complimentary snacks and beverages, including fresh, healthy and gluten-free options;

computer workstations/spaces; current newspapers and other periodicals; high definition televisions; electric charging stations; and free internet access. Concessionaire may provide premium food and alcoholic beverages at an additional cost to its customers subject to the provisions of Section 6.06 below.

6.03 Delivery of Goods. Concessionaire shall arrange and be responsible for the timely delivery of all goods, stock, fixtures, and supplies to and from the Premises, at such

- 12 -times, at such on-Airport location(s), and by such on-Airport routes as approved in writing by the Department. Concessionaire agrees that all deliveries shall be made during the times and at the locations(s) designated by the Department.

6.04 Shopping Services. County shall have the right at its cost to monitor and test all of

Concessionaire’s services by a shopping service selected by County and enter the Premises to conduct surveys that may or may not pertain to Concessionaire’s business.

6.05 Quality Merchandise. Concessionaire shall only offer high-quality food, beverages and products, which are safe, free of adulteration, sanitary, properly labeled, and as advertised. Concessionaire shall upon written demand from County cease selling any item that County shall determine is objectionable for sale or display at the Airport and immediately remove such item from its inventory and not thereafter offer such item for sale at the Airport. Upon prior written approval from County, Concessionaire may from time to time add or delete items from its merchandise offerings. Concessionaire shall without any additional charge to the purchaser, exchange any product determined by the purchaser to be unsatisfactory, flawed, defective, or of poor quality or shall provide a full refund of the purchase price.

6.06 Street Pricing. Concessionaire shall charge street prices for food and beverages sold on the Premises, which are not provided on a complimentary basis to its customers as a part of the cost to access the Premises. For purposes of this Agreement, “Street Price” means pricing at a level roughly equivalent to what a consumer would pay for food and beverages at an upscale bar or lounge with limited food service location in Palm Beach County (“Comparable Locations”). No less than thirty (30) days prior to the Date of Beneficial Occupancy, Concessionaire shall provide County with a menu of food and beverages, which will not be provided on a complimentary basis to its customers, and the associated cost of each item. Unless otherwise approved by the Department, Concessionaire shall provide a price comparison survey from no less than three Comparable Locations demonstrating that amount to be charged for each item will not exceed median price established by the Comparable Locations (“Price Survey”). County reserves the right to reject any Comparable Location provided by Concessionaire and to require an alternative location to be provided.

County may require Concessionaire to perform a Price Survey up to two (2) times each Contract Year to establish Concessionaire’s compliance with the requirements of this Section. The Price Survey shall be delivered to County within thirty (30) days of County’s written request.

6.07 Right to Object. County shall have the right to raise reasonable objections to the appearance or condition of the Premises, the quality and quantity of merchandise, the character of the service, the appearance and performance of service personnel, and to require any such conditions or practices objectionable to the Department to be remedied by Concessionaire.

6.08 Nondiscriminatory Services Requirement. Concessionaire shall provide all services authorized hereunder to its customers and patrons upon a fair, equal, and nondiscriminatory basis and charge fair, reasonable, and nondiscriminatory prices;

provided, however, that Concessionaire may make or give such reasonable and

- 13 -nondiscriminatory discounts, rebates, or other similar price reductions as it may desire to its employees, Airport employees, seniors and military.

6.09 Type of Operation. Concessionaire shall maintain and operate the Premises granted hereunder in an orderly, proper, and first-class manner, which, in the sole judgment of County, does not annoy, disturb, or offend others at the Airport.

6.10 Payment. At all times during the Term of this Agreement, Concessionaire shall accept as payment for goods and services travelers’ checks and at least three (3) nationally recognized credit or debit cards. The selection of acceptable credit cards shall include at least two (2) of the following: VISA, Master Card, or American Express. Such travelers’ checks and credit and debit cards shall be accepted as a service to the public for all purchases.

6.11 Services to the General Public. Concessionaire shall without charge provide services such as making change, giving directions, and providing general information to the public.

Concessionaire shall strive to ensure that all of its employees know the layout of the Terminal and have the ability to provide passengers and visitors with information regarding the locations of Airport services.

6.12 Personnel.

A. Concessionaire shall maintain a sufficient number of properly trained employees to ensure that all customers of Concessionaire receive prompt and courteous service at all times. All employees of Concessionaire shall be polite, clean, appropriately attired, and neat in appearance while on or about the Premises.

Concessionaire shall promptly remove any employee who is discourteous or displays performance or behavior inconsistent with County’s high level of customer service, or who fails to support a professional image of the Airport.

B. Employees of Concessionaire shall wear appropriate nametags, subject to the approval of County, and employees performing similar jobs shall have a similar dress code or wear similar uniforms, which shall be clean and pressed.

C. County shall have the right to object to the demeanor, conduct, and appearance of any employee of Concessionaire, or any of its invitees or those doing business with it, whereupon Concessionaire shall take all steps necessary to remedy the cause of the objection.

D. The management, maintenance, and operation of the Premises shall be under the supervision and direction of an active, qualified, competent, and experienced manager, who shall at all times be authorized to represent and act for Concessionaire. Concessionaire shall cause such manager to be assigned a duty station or office in the Premises at which he or she shall be available during normal business hours, and Concessionaire will at all times during the absence of such manager assign, or cause to be assigned, a qualified subordinate to assume and be directly responsible for the carrying out of his or her duties. A local

- 14 -representative of the Concessionaire shall be available by telephone twenty-four

(24) hours per day, seven (7) days per week, and three hundred sixty-five (365) days per year in case of an emergency. The contact information for this representative shall be on record with County at all times.

6.13 Training Program. Concessionaire shall have an employee training program that must to be successfully completed by each of Concessionaire’s employees working at the Airport within two (2) weeks of the date of hire as a condition of continued employment. The training program shall include a customer service component to provide employees with the knowledge, skills, and competencies required to increase overall customer satisfaction. The training program shall also include disability sensitively training relevant to each employee’s job duties, information regarding Concessionaire’s nondiscrimination obligations under this Agreement, training on how to effectively assist individuals with limited English proficiency and information regarding Concessionaire’s and County’s policies and procedures applicable to Concessionaire’s employees at the Airport. Concessionaire shall provide the Department with complete copies of its training materials upon the Department’s request. All employees with direct day-to-day contact with the public shall complete a “refresher” customer service and disability sensitivity training course no less than once a year, and any employee who receives two (2) or more complaints, regardless of the outcome of any investigation or resolution of such complaints, shall be required to attend the next available “refresher” course. Upon request by Department, Concessionaire shall provide Department a complete list of all employees who have successfully completed the training program and any “refresher” courses.

ARTICLE 7 - CONSTRUCTION OF IMPROVEMENTS

7.01 General. Concessionaire shall make no additions, alterations or improvements to the Premises, or improvements constructed thereon, without the prior written approval of the Department. Any such additions, alterations or improvements shall be made in accordance with the construction requirements contained herein and as established by the Department. All improvements constructed or placed on the Premises shall be of attractive construction and first-class design, shall comply with any and all applicable governmental laws, regulations, rules and orders, shall follow standard construction methods, and shall be constructed in accordance with the requirements of this Article.

Approval of the Department shall extend to and include architectural and aesthetic matters and the Department may, in its sole and absolute discretion, reject any layout or design proposals submitted and require Concessionaire to resubmit any such layout or design proposals until Concessionaire receives the Department’s approval.

7.02 Initial Leasehold Improvements. Concessionaire shall complete construction of all leasehold improvements necessary to open the Premises to the public within twelve (12) months of the Effective Date of this Agreement, which shall include ______________ (“Initial Leasehold Improvements”), unless otherwise approved by the Department in writing. Concessionaire agrees to expend a minimum of _____________________ Dollars ($___________) (“Minimum Investment”) on the construction, furnishing, and equipping the Premises. Costs that may be counted toward the Minimum Investment

- 15 -shall include all costs paid for work performed, services rendered and materials furnished for the construction of the Initial Leasehold Improvements, subject to the following terms, conditions and limitations:

A. Only true third party costs and payments made by Concessionaire shall be included in the Minimum Investment. Costs incurred by any sublessee, licensee or other occupant of the Premises, or any portion thereof, other than Concessionaire shall not be included in the Minimum Investment.

B. Costs for consultants (other than engineering and design consultants, as provided above) shall not be included in the Minimum Investment. Legal fees and accountant fees shall not be included in the Minimum Investment.

C. Finance and interest expenses shall not be included in the Minimum Investment.

D. Administrative, supervisory and overhead or internal costs of Concessionaire shall not be included in the Minimum Investment.

7.03 Construction Plans.

A. Prior to constructing any improvements on the Premises, including, but not limited to, the Initial Leasehold Improvements, Concessionaire shall cause detailed preliminary construction plans and specifications for the improvements to be prepared (hereinafter collectively referred to as the “Plans”) and deliver the preliminary Plans to the Department for review, comment and approval, which approval shall not be unreasonably withheld, conditioned or delayed. The Department shall review the preliminary Plans and provide a written response to Concessionaire within thirty (30) days of delivery of the preliminary Plans to County for review. In the event the Department does not approve the preliminary Plans, Concessionaire will be notified of the reasons for the disapproval and the necessary modifications and/or alterations to the Plans. Concessionaire shall resubmit modified Plans to the Department within thirty (30) days of the date of the Department’s written notice of disapproval. Within sixty (60) days following approval of the preliminary Plans by the Department, Concessionaire shall prepare or cause to be prepared final working Plans in substantial conformity to the approved preliminary Plans and shall submit the final working Plans to the Department for approval. Upon approval of the final working Plans by the Department, Concessionaire shall obtain all permits and other government approvals required for the commencement of construction. Prior to commencement of construction, Concessionaire shall deliver to the Department one (1) complete set of the final working Plans as approved by the governmental agencies exercising jurisdiction thereover. Minor changes from the final working Plans shall be permitted if such changes may be reasonably inferred from the final working Plans, or if they are made to comply with requirements of any governmental agency exercising jurisdiction thereover.

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B. Within sixty (60) days following Concessionaire’s receipt of a certificate of occupancy or certificate of completion, as appropriate, for improvements constructed pursuant to this Article, Concessionaire, at its sole cost and expense, shall have prepared and deliver to the Department: one (1) complete set of as-built drawings in a hardcopy format, one (1) complete set of as-built drawings in a PDF format and one (1) complete set of as-built drawings in Auto CADD files in the latest version acceptable by the Department. All improvements constructed upon the Premises shall be completed at Concessionaire’s sole cost and expense and shall be completed in accordance with the approved Plans.

C. Within sixty (60) days following the substantial completion of construction of the

Initial Leasehold Improvements, Concessionaire shall, at its sole cost and expense, have prepared and delivered to the Department a written agreed upon procedures examination report detailing: (a) the costs of the Initial Leasehold Improvements to evidence satisfaction of the Minimum Investment and (b) Net Book Value of the Initial Leasehold Improvements as of the Date of Beneficial Occupancy (“Investment Report”). The Capital Investment Report shall be in a form and substance reasonably satisfactory to County and shall be prepared and certified by a qualified and licensed independent Certified Public Accountant, not a regular employee of Concessionaire, selected by Concessionaire, and shall include an opinion regarding the information contained in the schedules. The Capital Investment Report shall not contain a qualified opinion, an adverse opinion, or a disclaimer of opinion, as defined by the American Institute of Certified Public Accountants or any successor agency thereto, regarding the information contained in the required schedules.

D. Except as otherwise provided for herein, if the costs incurred by Concessionaire for the Initial Leasehold Improvements are less than the required Minimum Investment, Concessionaire shall pay the difference to County within thirty (30) days of delivery of the Investment Report. In the event Concessionaire fails to make the required Minimum Investment, County may elect to require Concessionaire to expend the remaining Minimum Investment on the future improvement and refurbishment of the Premises. In the event County elects to defer payment of such costs, the parties shall enter into an amendment to this Agreement to address the improvement and refurbishment of the Premises required to be made by Concessionaire pursuant to this paragraph.

7.04 Construction Bonds. Concessionaire shall ensure that all improvements are constructed to completion in accordance with the approved Plans and that all persons or entities performing work or providing materials relating to such improvements including, but not limited to, all contractors, subcontractors, laborers, materialmen, suppliers and professionals, are paid in full for such services and materials. Prior to the commencement of any improvements to the Premises, the estimated cost of which exceeds Fifty Thousand Dollars ($50,000), Concessionaire shall cause to be made, executed and delivered to County at Concessionaire’s sole cost a bond that is in a form and substance reasonably satisfactory to County, that a company reasonably acceptable to

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County issues, and that guarantees Concessionaire’s compliance with its obligations arising under this Agreement. Concessionaire may not subdivide improvements or phase projects for the purpose of avoiding the foregoing bond requirement. County shall be named as the obligee on the bonds. In lieu of the bond required by this Section, Concessionaire may file with County an alternative form of security in the form of cash, money order, certified check, cashier's check, clean irrevocable letter of credit, or security of a type listed in Part II of Chapter 625, Florida Statutes; provided, however, the form of the security and company issuing such security, if applicable, shall be subject to the prior written approval of County and shall be in accordance with County’s standard policies and procedures. Any such alternative form of security shall be for the same purpose and be subject to the same conditions as those applicable to the bond required by this Section.

Any such alternative form of security may be reduced by Concessionaire subject to approval of County during the construction of the improvements, but not more than once per month, based upon the percentage of completion of the improvements plus retainage, and the Department, on behalf of County, may execute such certificates, notices or other documents as may be necessary to effectuate such reduction.