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Home My WebLink AboutC01-322 Frontier Car Rental - airporta Performance and Use Agreement FOR ON- AIRPORT CAR RENTAL AGENCY BETWEEN COUNTY OF EAGLE, STATE OF COLORADO AND FRONTIER RENTAL, INC. This Performance and Use Agreement ( "Agreement ") entered into this fi' day of ,200, by and between the County of Eagle, State of Colorado, a body politic and corporate, acting by and through its Airport Manager ( "County "), and Frontier Rental, Inc. ( "Commercial Operator "). WITNESSETH: WHEREAS, the County now owns, controls and operates the Eagle County Regional Airport (the "Airport ") located between the towns of Eagle and Gypsum in the County of Eagle, State of Colorado; and WHEREAS, the County is duly authorized by law to administer and govern the Airport, including businesses and services conducted thereat; and WHEREAS, Commercial Operator desires to operate an airport car rental agency for travelers utilizing the Airport; and WHEREAS, Commercial Operator has entered into an agreement granting it certain space and facilities within the Car Maintenance Facility for soliciting and for serving customers with the operator thereof for the purposes of operating its car rental agency business; and WHEREAS, car rental services are essential to the proper accommodation of general and commercial aviation at the Airport. NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in this Agreement, the parties hereby agree as follows: ARTICLE ONE RIGHTS AND PRIVILEGES The County hereby grants to Commercial Operator a non - exclusive, revocable license to operate its motor vehicles upon the property of the Airport in the conduct of its on- airport car rental agency business and to pick up and discharge its customers at the terminal building(s) and/or the Car Maintenance Facility at the Eagle County Airport for the term and subject to the conditions set forth in tlliis Agreement and in the Airport Ground Transportation Rules and Regulations. As a condition precedent to this Agreement, Commercial Operator shall enter into an agreement with the operator(s) of either of the Airport terminal(s) or Car Mainte- nance Facility for the use thereof for customer service facilities, and, at Commercial Operator's option, also for vehicle cleaning and maintenance, fueling, and related services as are reasonably necessary for the exercise of its privileges under this Agree- ment. Commercial Operator agrees that neither it nor its drivers, agents and employees shall solicit customers on Airport premises nor engage in any activities at the Airport intended to persuade members of the public to utilize its vehicles and /or services except within the Airport terminal or Car Maintenance Facility with which it contracts for customer service facilities as provided by and subject to the restrictions in such agree- ment. This Agreement does not authorize Commercial Operator to park motor vehicles on Airport property. Any commercial activity not expressly authorized under the terms hereof is expressly prohibited. ARTICLE TWO TOE The term of this Agreement shall be effective as of December 1, 2001 and continuing through the 30th day of November, 2002 (the "Termination Date "), unless earlier terminated under the provisions of this Agreement. ARTICLE THREE COMPLIANCE WITH LAWS AND REGULATIONS Commercial Operator shall comply with all applicable Federal, state and local laws, ordinances and regulations. Commercial Operator, and its employees, contractors and agents, shall observe the Eagle County Airport Rules and Regulations, including but not limited to the Ground Transportation Rules and Regulations as they exist on the date hereof and as they may be modified from time -to- time. The Ground Transportation Rules and Regulations in force at the time of the signing of this Agreement are attached hereto, marked "Exhibit A," and incorporated herein by this reference. County reserves the right to amend the Airport Rules and Regulations in its sole discretion, and all such amendments shall be effective with respect to Commercial Operator upon their adoption whether or not Commercial Operator has received actual notice. 2 C-1 ARTICLE FOUR REVENUE AND CHARGES A. Commercial Operator Revenues: Commercial Operator shall be permit- ted to charge reasonable prices for its services. A report of all charges, past and present, and any changes thereto, shall be available for the County's inspection at all reasonable times. B. County Charges: Commercial Operator shall pay to the County a sum equal to six percent of Adjusted Gross Receipts in accordance with the Rules and Regulations for Ground Transportation. The fee shall be paid to County by the 15th day of the month for the preceding calendar month. If Commercial Operator has conducted no business activity during the preceding calendar month, it must report that fact by the fee due date; if it suspends business for a period of consecutive months, it may, in lieu of monthly reporting, report the suspension of business, stating the effec- tive beginning and ending dates of the suspension, prior to the suspension beginning. C. Commercial Operator Accounting: For the purpose of ascertaining the amount payable as herein provided, Commercial Operator shall keep an accurate account of all daily sales and revenues made by Commercial Operator in, on, or from the Airport, the same to be entered into a book of a permanent nature which shall be available to the County for its inspection upon its demand. D. Delinquency Charge: A delinquency charge of two (2) percent per month shall be added to payments required hereinabove, which are rendered more than ten days delinquent in addition to any other' remedy provided for herein. E. Place of Payment: All payments due the County from Commercial Operator shall be delivered to the Airport Manager's Office or to such other place in Eagle County designated in writing by the County. F. Annual Statement. Within sixty (60) days after the end of each calendar year, Commercial Operator shall furnish to County an annual statement of its Adjusted Gross Receipts generated during the preceding calendar year, the accuracy and completeness of which statement shall be attes ted under oath under penalty of perjury by an officer of Commercial Operator. The County reserves the right to audit said statement and Commercial Operator's books and records, including examination of the general ledger and all other supporting material, including tax returns, at any reason- able time during business hours, verifying the Adjusted Gross Receipts. If the audit establishes that Commercial Operator has understated or overstated the Adjusted Gross Receipts by $500.00 or more, the entire expense of said audit shall be borne by Commercial Operator. Any additional payment due from Commercial Operator shall forthwith be paid to the County, with interest thereon at 1 -1/2 percent per month from 3 01 @4 I the date such amount originally became payable to the County. Any overpayment by Commercial Operator shall be credited against further payments due to the County. G. Disputes. In the event that any dispute may arise as to the Adjusted Gross Receipts collected, the amount claimed due by Commercial Operator shall be paid forthwith and the dispute shall be submitted to a certified public accountant, agreeable to both parties, who shall determine the rights of the parties hereunder in conformity with generally accepted accounting principles. The fees due said accoun- tant for such service shall be paid by the unsuccessful party, or in the event the determination is partially in favor of each party, the fee shall be borne equally by the parties. ARTICLE FIVE GENERAL OPERATING PROVISIONS A. Reservations of the County. For the purposes of this Agreement, "Public Aircraft Facilities" shall mean -- but only as and to the extent that they are from time to time provided by the County at the Airport for public and common use by aircraft operators -- (1) runways, (2) taxiways, (3) passenger ramp and apron areas„ (4) any extensions or additions to the above, and (5) any other space or facilities provided by the County at the Airport for public and common use by aircraft operators in connection with the landing and taking off of aircraft or in connection with operations hereinafter authorized to be performed by aircraft operators upon the aforesaid runways, taxiways, and public passenger ramp and apron areas. The County reserves the right to further develop or improve the Airport as it sees fit, regardless of the desires or views of Commercial Operator, and without interference or hindrance, except that the County may not arbitrarily violate or unreasonably diminish Commercial Operator's rights as provided elsewhere in this Agreement except on a temporary basis, or diminish its ability to perform the obligations undertaken by it hereunder; provided, however, that any general or partial closure of any Public Aircraft Facilities for the purpose and duration of construction or repair shall not be considered a violation or diminishing of Commercial Operator's rights or ability to perform; and provided, further, that the construction of a new or second terminal by County shall not be considered a violation or diminishing of Commercial Operator's rights or ability to perform. The County reserves the right to maintain and keep in repair the Pblfc Aircraft Facilities of the Airport and all publicly owned facilities of the Airport, together with the right to direct and control all activities of Commercial Operator in this regard. The County reserves the right to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction. 4 l During the time of war or national emergency, the County shall have the right to lease the Airport or any part thereof to the United States Government for military or naval use, and, if such lease is executed, the provisions of this Agreement insofar as they are inconsistent with the provisions of the lease to the Government, shall be suspended. The County reserves the right to direct and control all activities of Commercial Operator at the Airport in the event of an emergency or if Commercial Operator's opera- tions are interfering with the use of the Airport by others. Non - compliance with this subsection shall constitute a breach or default of this Agreement and in the event of such non - compliance, the County shall have the right to terminate this Agreement, or at the election of the County or the United States, or both of said governments, shall have the right to enforce judicially this subsection. B. No Exclusive Rights Granted. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 308 of the Federal Aviation Act. The County reserves the right, at its sole discretion, to grant others certain rights and privileges upon the Airport which are identical in part or in whole to those granted to Commercial Operator. The County reserves the right, but shall not be obligated, to permit other rental car companies, with whom the airport has not executed an Performance and Use Agreement, to enter upon the Airport in general, and the Air Carrier Terminal in particu- lar, to pick up and drop off customers, to purchase advertising space on the Airport and within the Air - Carrier Terminal, and to establish a courtesy phone system on the Airport and within the Air Carrier Terminal, all subject to fees and charges in common with other users of that classification. C. Subordination of Agreement. This Agreement and the rights and privileges thereunder are subject and subordinate to the terms, reservations, restrictions and conditions of any existing or future agreements between the County and the United States, the execution of which has been or may be required as a condition precedent to the transfer of federal rights or property to the County for Airport purposes or the expenditure of federal funds for the extension, expansion or development of the Airport. D. Signs. Commercial Operator shall not erect, maintain or display at the Airport any external signs or other advertising without first obtaining the written approval of the County. Commercial Operator shall remove, at its expense, all lettering, signs, and placards erected on the Airport at the expiration of the term of this Agreement. k" i. ARTICLE 6 INSURANCE Commercial Operator agrees to secure at its own expense, and to keep in force at all times during the Term hereof, Comprehensive General Public Liability Insurance in the rniinimum amount of One Million Dollars ($1,000,000.00) bodily injury and property damage combined single limit each occurrence. The required insurance coverage also shall include Personal Injury, Blanket Contractual Coverage for this Agreement, and Independent Contractors Coverage. Commercial Operator shall also maintain in force, during the term of this Agreement, Automo- bile Liability Insurance, Comprehensive Form, which shall insure all Commercial Operator's owned or hired limousines and /or other vehicles used by Commercial Operator at purport pursuant to this Agreement, in the minimum amount of One Million Dollars ($1,000n000.00), Bodily Injury and Property Damage Combined Single Limit per occurrence. Commercial Operator shall also maintain in force during the term of this Agreement Workers Compensation and Employers Liability Insurance in accordance with the provisions of Colorado law. The limit of such insurance coverage shall be for statutory Worker's Compensation benefits, and shall not be less than One Hundred Thousand Dollars ($100,000.00) for employers liability insur- ance. Commercial Operator agrees that County shall be named as an additional insured under such policy or policies of insurance and said policy or policies shall include the severability of interest "cross over" provision. A certificate or certificates evidencing such insurance coverage shall be filed with County within ten (10) days after execution of this Agreement, and said certificate(s) shall provide that such insurance coverage will not be canceled or reduced without at least thirty (30) days prior written notice to County. At least ten (10) days prior to the expiration of said insurance porky or policies, a certificate showing that such insurance coverage has been renewed or extended shall be filed with County. If such coverage is canceled or reduced, Commercial Operator shall within seven (7) days of notice of cancellation or reduction, but in any event more than fifteen (15) days before the effective date of said cancellation or reduction, file with County a certificate showing that the required insurance has been reinstated in full, or provided through another insurance company or companies. In the event that Commercial Operator shall at any time fail to provide County with the insur- ance required under this section, County may immediately terminate this Agreement. The insurance carried by the Commercial Operator, as required by this Agreement,, shall be primary over any insurance carried by the County for the County's own protection. A copy of the insurance representative's license, or other legal proof of his /her authorization to sign the Certificate of Insurance for and on behalf of the insurance company /companies shown thereon, must be attached to the Certificate of Insurance. Facsimile stamped signature on the Certifi- cate will not be accepted. The Certificate must be signed by the insurance company's authorized representative. The County will conditionally accept self- insurance under this section, subject to review and approval of appropriate County and State requirements. All preceding coverages and limits will C ARTICLE SEVEN INDEMNIFICATIONS AND NON - LIABILITY EXCEPTIONS Commercial Operator shall indemnify and hold harmless the County, its Board of County Commissioners and the individual members thereof, its commissions, agencies, departments, officers, agents, employees or servants, and its successors from any and all demands, losses, liabilities, claims or judgments, together with all costs and ex- penses incident thereto which may accrue against, be charged to, or be recoverable from the County, its Board of County Commissioners, and its individual members there- of, its commissions, agencies, departments, officers, agents, employees or servants and its successors, as a result of the acts or omissions of Commercial Operator, its employees or agents, in connection with Commercial Operator's use of the Airport premises or in any manner whatsoever arising directly or indirectly out of Commercial Operator's exercise of its privileges or performance of its obligations under this Agree- ment, . The County shall give to Commercial Operator prompt notice of any claim made or suit instituted which in any way, directly or indirectly, affects or might affect Commer- cial Operator and Commercial Operator shall have the right to compromise or partici- pate in the defense of any such action to the extent of its own interests. Commercial Operator shall likewise give prompt notice to the County of any claim or suit which directly affects or might directly affect Commercial Operator's ability to operate hereun- der or which in any way affects or might affect the County or the general operations of the Airport. Except as otherwise expressly provided within this Agreement, the parties mutually agree that nothing contained in this Agreement, nor the operations hereunder, shall in any way be construed to constitute the parties hereto as partners or be con- strued that Commercial Operator is an employee, agent or servant of the County, and in no event shall the County become liable for any loss which may result from the operations of Commercial Operator, nor for any indebtedness incurred by Commercial Operator in the operations of its business. ARTICLE EIGHT ASSIGNMENT It is mutually understood by the respective parties hereto that during the term of this Agreement, Commercial Operator may not assign this Agreement without the written consent of the County, which consent shall be exercised in County's sole and absolute discretion. C C, ARTICLE NINE COOPERATION Commercial Operator agrees that so long as it is operating as an pursuant to this Agreement, it shall cooperate in a fair and reasonable way with all other persons and entities operating on the Airport with the permission and approval of the County. ARTICLE TEN NOTICES Any notices provided for herein shall be in writing and shall be delivered in person or mailed by certified or registered mail, return receipt requested, postage pre- paid, to the party for whom intended at the address set forth below: Brad Ghent Frontier Rental, Inca 216 Eldon Wilson Road Telephone: 970 - 524 -7334 Facsimile: Eddie F. Storer, Acting Airport Manager Eagle County Regional Airport P.O. Box 850 Eagle, Colorado 81631 Telephone: 970- 524 -8246 Fax: 970 - 524 -8247 Either party may change its address by written notice to the other party. Notices are deemed to have been given effective as of the date of delivery if personally delivered, and as of the third day after mailing, if mailed. ARTICLE ELEVEN DEFAULT AND TERMINATION A. Termination by Commercial Operator. This Agreement shall be subject to termination by Commercial Operator in the event of any one or more of the following events: 1. The abandonment of the Airport as an airport or airfield for any type, class or category of aircraft. 91 r � 2. The default by County in the performance of any of the terms, cove- nants or conditions of this Agreement, and the failure of the County to remedy or undertake to remedy, to Commercial Operator's satisfaction, such default for a period of thirty (30) days after receipt of notice from Commercial Operator to remedy the same. 3. Damage to or destruction of all or a material part of the Airport facilities necessary to the operation of Commercial Operator's business. 4. The lawful assumption by the United States, or any authorized agency thereof, of the operation, control or use of the Airport, or any substantial part or parts thereof, in such a manner as to restrict substantially Com- mercial Operator from conducting business operations for a period in excess of 180 days. B. Termination by the County. This Agreement shall be subject to termina- tion by the County in the event of any one or more'of the following events: 1. The default by Commercial Operator in the performance of any of the terms, covenants or conditions of this Agreement, and the failure of Commercial Operator to remedy, or undertake to remedy, to County's satisfaction, such default for a period of thirty (30) days after receipt of notice from County to remedy the same. 2. Commercial Operator files voluntary petition in bankruptcy, including a reorganization plan, makes a general or other assignment for the benefit of creditors, is adjudicated as bankrupt or if a receiver is appointed for the property or affairs of Commercial Operator and such receivership is not vacated within forty -five (45) days after the appointment of such receiver. C. Exercise of the rights of termination set forth in Paragraphs A and B above, shall be by notice to the other party within thirty (30) days following the event giving rise to the termination. D. Causes of Breach; Waiver. 1. Neither party shall be held to be in breach of this Agreement because of any failure to perform any of its obligations hereunder if said failure is due to any cause for which it is not responsible and over which it has no control; provided, however, that the foregoing provision shall not apply to failures by Commercial Operator to pay fees or other charges to the County. 2. The waiver of any breach, violation or default in or with respect to the performance or observance of the covenants and conditions contained CJ C herein shall not be taken to constitute a waiver of any such subsequent breach, violation or default in or with respect to the same or any other covenants or condition hereof. ARTICLE TWELVE DUTY TO OBTAIN REQUIRED PERMITS Commercial Operator shall, at its sole expense, obtain and maintain in good standing all proper and necessary permits, including the permits described in the Ground Transportation Rules and Regulations, and licenses necessary to carry out and perform its privileges and obligations under this Agreement. ARTICLE: THIRTEEN OPERATING STANDARDS In providing any of the required and /or authorized services or activities specified in this Agreement, Commercial Operator shall operate for the use and benefit of the public and shall meet or exceed the following standards: A. Commercial Operator shall furnish service on a fair, reasonable and non- discriminatory basis to all users of the Airport. Commercial Operator shall furnish good, prompt and efficient service adequate to meet all reasonable demands for its services at the Airport. Commercial Operator shall charge fair, reasonable, and non-discrimina- tory prices for each unit of sale or service; provided however, that Commercial Operator may be allowed to make reasonable and non - discriminatory discounts, rebates or other similar types of price reductions to volume purchasers. Commercial Operator specif- ically covenants that no person on the grounds of race, color, sex or national d igin shall be excluded from participation in, denied the benefits of, or otherwise be subioded to discrimination in the participation in or use of Commercial Operator's services. B. Commercial Operator shall not discriminate against any person or class of persons by reason of race, color, sex, creed, religion, handicap or national origin in providing any services or in the use of any facilities provided for the public in any manner prohibited by Title 49 Code of Federal Regulations, Part 21, and shall comply with the letter and spirit of the Colorado Anti - Discrimination Act of 1957, as amended, and any other laws and regulations respecting discrimination in unfair employment practices, and shall comply with such enforcement procedures as any governmental authority might demand that the County take for the purpose of complying with any such laws and regulations. C. Commercial Operator assures that it will undertake an affirmative action program, as required by 14 CFR Part 152, Subpart E, to ensure that no person shall, on the ground of race, creed, color, national origin, or sex, be excluded from participat- 10 C) ing in any employment, contracting, or leasing activities covered in 14 CFR Part 152, Subpart E. Commercial Operator assures that no person shall be excluded, on these grounds, from participating in or receiving the services or benefits of any program or activity covered by this subpart. The County assures that it will require that its covered organizations provide assurance to the Commercial Operator that they similarly will undertake affirmative action programs and that they will require assurances from their suborganization, as required by 14 CFR Part 152, Subpart E, to the same effect. D. Commercial Operator agrees to comply with any affirmative action plan or steps for equal employment opportunity required by 14 CFR, Part 152, Subpart E, as part of the affirmative action program or by any Federal, state or local agency or court, including those resulting from a conciliation agreement, a consent decree, court order, or similar mechanism. E. Commercial Operator agrees that a state or local affirmative action plan will be used in lieu of any affirmative action plan or steps required by 14 CFR Part 152, Subpart E, only when they fully meet the standards set forth in 14 CFR 152.409. F. Commercial Operator shall provide, at its sole expense, a sufficient number of employees to provide effectively and efficiently the services required or authorized in this Agreement. G. Commercial Operator shall control the conduct, demeanor and appear- ance of its employees, who shall be trained by Commercial Operator and who shall possess such technical qualifications and hold such certificates of qualification as may be required in carrying out assigned duties. It shall be the responsibility of Commercial Operator to maintain close supervision over its employees to assure a high standard of service to customers of Commercial Operator. H. Commercial Operator shall meet all expenses and payments in con- nection with the rights and privileges herein granted, including taxes, permit fees, license fees and assessments lawfully levied or assessed upon Commercial Operator. Commercial Operator may, however, at its sole expense and cost, contest any tax, fee or assessment. L Commercial Operator shall comply with all Federal, state and local laws, rules and regulations which may apply to the conduct of the business contemplated, including rules and regulations promulgated by the County, and Commercial Operator shall keep in effect and post in a prominent place all necessary and/or required licenses or permits. J. It is expressly understood and agreed that, in providing required and authorized services pursuant to this Agreement, Commercial Operator shall have the right to choose, in its sole discretion, its vendors and suppliers. 11 ARTICLE FOURTEEN RIGHT OF INGRESS AND EGRESS Commercial Operator shall have at all times the full and free right of ingress and egress from the Airport. Such right shall also extend to its employees, customers, passengers, guests, suppliers. ARTICLE FIFTEEN NO PRIVATE CAUSE OF ACTION The rights herein contracted for shall inure solely to the benefit of the parties to this Agreement, and nothing herein shall be construed to grant a cause of action to non - parties claiming as third party beneficiaries or otherwise. ARTICLE SIXTEEN ADDITIONAL CONDITIONS A. All the covenants, conditions, and provisions in this Agreement shall extend to and bind the legal representatives, successors, and assigns of the respective parties hereto. B. This Agreement shall be construed under the laws of the State of Colo- rado. Any covenant, condition, or provision herein contained that is held to be invalid by any court of competent jurisdiction shall be considered deleted from this Agreement, but such deletion shall in no way affect any other covenant, condition or provision herein contained so long as such deletion does not materially prejudice the County or Commercial Operator in their respective rights and obligations contained in the valid covenants, conditions, or provisions of this Agreement. C. All amendments to this Agreement must be made in writing by mutual agreement of the parties, and no oral amendments shall be of any force or effect whatsoever. D. The clause headings appearing in this Agreement have been inserted for the purpose of convenience and ready reference. They do not purport to, and shall not be deemed to, define, limit or extend the scope or intent of the clauses to which they appertain. E. This Agreement supersedes all previous communications, negotiations and /or contracts between the respective parties hereto, either verbal or written, and the same not expressly contained herein are hereby withdrawn and annulled. This is an integrated agreement and there are no representations about any of the subject matter hereof except as expressly set forth herein. 12 C C [signature page next page] IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the year and date first above written. \onair.95 COUNTY OF EAGLE, STATE OF COLORADO, Eddie F. Storer Airport Manager By: f ontier Rental, Inc. K c_,.v. 13