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HomeMy WebLinkAboutC03-243 Tiga Advertising• ~ L~e3- a v3-~a ADVERTISING DISPLAY CONCESSION AGREEMENT BETWEEN EAGLE COUNTY AIR TERMINAL CORPORATION AND TIGA ADVERTISING, INC. THIS AGREEMENT, made and entered into this ~~~ day of August, 2003, by and between Eagle County Air Terminal Corporation, a non;~roft corporation of-the State of Colorado ("CORPORATION"), and Tiga Advertising, Inc. G Colorado corporation x. ("CONCESSIONAIRE"). WITNESSETH: WHEREAS, CORPORATION is owner and operator of the Eagle County Air Terminal Building and associated support facilities (TERMINAL BUILDING) located on Eagle County Regional Airport in Eagle County, Colorado, and has the right to grant concession rights to portions of the TERMINAL BUILDING and to grant advertising privileges thereon subject to the terms and conditions hereinafter set forth; and WHEREAS, CONCESSIONAIRE desires to lease certain premises within the TERMINAL BUILDING, for installation of advertising displays, and acquire certain rights and privileges from CORPORATION in connection with its use of the TERMINAL BUILDING and CORPORATION is willing to lease and grant same to CONCESSIONAIRE under terms and conditions hereinafter stated; and WHEREAS, CORPORATION and CONCESSIONAIRE each have the power and authority to enter into this Agreement; AGREEMENT NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and considerations herein contained, CORPORATION and CONCESSIONAIRE agree as follows: Article 1 Definitions Section 1.1 Definitions The terms and phases defined in this Article 1 for all purposes of this AGREEMENT shall have the following meanings: A. "AIRPORT" shall mean Eagle County Regional Airport. B. "AUDITOR" shall mean the CORPORATION's Auditor and his authorized representative. C. "CONCESSION SPACE" shall mean the space designated for advertising display devices in the TERMINAL BUILDING as generally depicted on the Terminal Space Plan attached hereto as Exhibit "A" and incorporated herein by this reference. The CORPORATION and CONCESSIONAIRE acknowledge and agree that the dimensions of the CONCESSION SPACE as set forth in Exhibit "A" are approximate. A revision to Exhibif "A° will be made, if necessary, depicting the dimensions and location of all CONCESSION SPACE as actually installed. D. "CONCESSIONAIRE'S PROPOSAL" shall mean the Proposal as submitted by CONCESSIONAIRE and accepted by the CORPORATION and consisting of CONCESSIONAIRE's proposed minimums and its plan of operation. E. "PAST DUE INTEREST RATE" shall mean interest accruing at 18% per as ~num commencing on thy: fifth calendar date after the date such amount is due and owing until paid to CORPORATION. ARTICLE 2 Grant of Concession Rights Section 2.1 Concession Rights Privileges and Obligations. CORPORATION grants to CONCESSIONAIRE the right, privilege and obligation to install, sell and maintain display advertising devices, e.g., wall posters and wall dioramas within the TERMINAL BUILDING as depicted in the attached Exhibit "A" consistent with and subject to all the terms and provisions of this Agreement. The areas shown on Exhibit "A" where display advertising devices shall be installed shall be referred to collectively as the "CONCESSION SPACE°. Currently, there are seventeen (17) advertising spaces in the TERMINAL BUILDING of which ECAT reserves the right to three (3) of the positions for their sole use. The remaining fourteen (14) and any additional spaces approved by ECAT are hereby included in the CONCESSIONAIRE'S privileges. CONCESSIONAIRE desires to install three (3) additional advertising devices and CORPORATION agrees to meet with CONCESSIONAIRE to discuss the possible location of such devices but CORPORATION shall in its sole discretion determine whether such additional devices may be installed. The CONCESSIONAIRE will construct all of the advertising spaces. ECAT reserves the right to regulate or reject the display and advertising of any motor vehicles or ground transportation displays. Additional devices or additional types of devices may be required by CORPORATION in its sole discretion, and locations of devices may be changed by CORPORATION in its sole discretion; but there shall be no reduction in the amount of the initial CONCESSION SPACE without CONCESSIONAIRE's consent. CONCESSIONAIRE shall obtain the permission of CORPORATION prior to installing any promotional, advertising, public service announcement or any other display in the TERMINAL BUILDING. Such permission shall not be unreasonably withheld or delayed. Notwithstanding the three positions for the sole use of CORPORATION noted above, CORPORATION shall have the right to display additional art exhibits, public service announcements or other advertising displays as CORPORATION may desire within the TERMINAL BUILDING. The parties agree that CONCESSIONAIRE shall not be entitled to display any vehicles at the TERMINAL BUILDING and that ECAT and Eagle County shall have the exclusive right to display vehicles and associated promotional devices. 2 • CONCESSIONAIRE shall not be entitled to any compensation or offset from ECAT or Eagle County as a result of such display. CONCESSIONAIRE agrees to remove no later than October 1, 2003 the free standing kiosks from the TERMINAL BUILDING and restore those areas to a condition acceptable to CORPORATION. CORPORATION may in its sole discretion elect to install during the term of this Agreement a phone reservation board and video display within the TERMINAL BUILDING. CONCESSIONAIRE here by states that it understands that CORPORATION may contract with CONCESSIONAIRE for such devices or alternatively CORPORATION may elect to contract with another company or independently install and operate such items. To the extent that CONCESSIONAIRE provides, installs and pays for such video display and/or a phone board during the initial year term and this Agreement is not extended, then the CORPORATION shall pay CONCESSIONAIRE for the cost of such video display and phone board. Section 2.2 Restrictions on Use. CONCESSIONAIRE agrees to use the space solely for the sale of advertising space. The design of advertising display devices and any reservation board(s) shall be approved by the CORPORATION prior to installation; such approval may not be unreasonably withheld or delayed. Section 2.3 Quality of Service. CONCESSIONAIRE shall provide high quality advertising units. All displays and advertising copy, posters or transparencies used in the CONCESSIONAIRE's operation shall be of.first quality, and shall conform in all respects to federal, state and local laws orders and regulations. No displays shall at any time be left empty or blank except as necessary to service the display units. If there is no advertising sold for the display, public service advertisements or other displays appropriate for tourist information about the area served by the AIRPORT shall be used in the device until the space is sold. CONCESSIONAIRE and the CORPORATION shall coordinate the non-paid public service advertising or other displays to be used; however, paid advertising shall take precedence at all times. CONCESSIONAIRE shall exercise diligence and exert its maximum effort in the sale of advertising display space, including the reservation board. Section 2.4 Licenses and Permits. CONCESSIONAIRE must, at CONCESSIONAIRE's own expense, provide and maintain in force any and all licenses and permits required for the legal operation of all aspects of CONCESSIONAIRE's business. ARTICLE 3 3.1 Term. This Agreement is effective at 12:01 a.m. local time on September 1, 2003, hereinafter called the "Effective Date" and shall continue for one year subject to earlier termination as provided in Article 8 hereof. Notwithstanding the foregoing, upon the defeasance of the bonds issued pursuant to the CORPORATION's Trust Indenture dated as of June 1, 1996, following maturity or earlier as provided in the Trust Indenture this Agreement shall terminate, as of the date of defeasance, and CONCESSIONAIRE shall vacate the premises leased hereunder within not more than ninety (90) days. CORPORATION will give not less than thirty (30) and 3 not more than sixty (60) days notice of an intent to defease the bonds in accordance with the Trust Indenture. CORPORATION also will give CONCESSIONAIRE notice of the date of defeasance within two (2) business days following the actual defeasance. Provided that the CONCESSIONAIRE is not in default at the expiration of the initial one year term, such term may be extended for one additional four (4) year period, or such other term as the parties may mutually agree, unless either party gives the other party written notice of its intent not to extend the Term no less than 90 days prior the expiration of the Term. Section 3.2 Surrender of CONCESS~~jN SPACE. Upon the expiration or earlier termination of this Agreement or on the date specked in any demand for possession by CORPORATION after any Default by CONCESSIONAIRE, CONCESSIONAIRE covenants and agrees to surrender possession of the CONCESSION SPACE to CORPORATION in the same condition as when first occupied. Section 3.3 Holding Over. If CONCESSIONAIRE remains in possession of the CONCESSION SPACE after the expiration of this Agreement without any written renewal thereof, such holding over shall not be deemed as a renewal or extension of this Agreement, but shall create only amonth-to-month agreement that may be terminated at any time by CONCESSIONAIRE or CORPORATION upon thinly (30) days written notice to the other party. Such holding over shall otherwise be upon the same terms and conditions as set forth in this agreement. The Privilege Fee during any holdover period shall be 115% of the Privilege Fee as calculated during the same month of previous contract year. ARTICLE 4 Compensation Charges, Fees, and Accounting Records For purposes of this Article 4 each year of the Agreement is defined as September 1 through August 31. Section 4.1 (a) Privilege Fee: During the initial year term of this Agreement, and for the concession privileges granted hereunder, CONCESSIONAIRE shall pay to CORPORATION a Percentage Privilege Fee. The Percentage Privilege Fee is fifty percent (50%) of CONCESSIONAIRE's Gross Revenue under this Agreement, said Gross Revenue being more fully defined in Section 4.2 hereof. Twenty (20) days after the beginning of each calendar month during the initial year hereof, CONCESSIONAIRE shall pay to the CORPORATION without billing, fifty percent (50%) of its Gross Revenue. (b) During the second and subsequent years of this Agreement, if extended beyond the initial year term, CONCESSIONAIRE shall pay (in advance) to CORPORATION no later than September 1 of each year the Minimum Privilege Fee as follows: Minimum Privilege Fee Year 1 50% of Gross Revenue Option Year 2 $50,000 Option Year 3 $51,500 Option Year 4 $53,000 Option Year 5 $54,500 (c) Percentage Privilege Fee. The Percentage Privilege Fee during the second and subsequent years of this Agreement, if extended beyond the initial year term, is fifty percent (50%) of the Gross Revenue under this Agreement (Gross Revenue being hereinafter defined in Section 4.2). No later than August 31 of year CONCESSIONAIRE shall pay to CORPORATION, the amount by which the Percentage Privilege Fee exceeds the Minimum Privilege Fee for the year. Section 4.2 Gross Revenue. As used herein, the term "Gross Revenue" shall mean all revenues from sales (whether denominated as a sale, lease or otherwise) at all locations at the TERMINAL BUILDING, including all charges, fees or sales received by CONCESSIONAIRE for advertising and all revenues of every kind and character derived from, arising out of or payable on account of any and all business conducted by CONCESSIONAIRE or from the operations of the CONCESSIONAIRE .under this Agreement, whether for cash or credit without deductions. Notwithstanding the foregoing definition; but excluding therefrom: (1) Federal, state, county and municipal sales taxes or other taxes separately stated and collected from customers; (2) Receipts from the sale or trade-in value of any equipment or materials not constituting an item inventoried by CONCESSIONAIRE, provided the sale of equipment does not represent a reduction in the installed advertising display inventory required under this Agreement. (3) Payment reimbursing CONCESSIONAIRE for actual costs incurred. Notwithstanding the foregoing definition, because of the unusual nature of the advertising business, during its Term and continuing for six months following the expiration or earlier termination of this Agreement, Gross Revenue shall be recognized by CONCESSIONAIRE on acash-received basis. On the 15th day of the 7th month following the expiration or earlier termination of this Agreement, CONCESSIONAIRE shall deliver to CORPORATION a certified accounting of all unpaid Gross Revenue for sales under this Agreement, and shall pay the Compensation Percentage Fee due therefore. CONCESSIONAIRE agrees to use its reasonable, best efforts to promptly collect payment for sales under this Agreement. Section 4.3 Title to CORPORATION's Compensation. Immediately upon CONCESSIONAIRE's receipt of monies from the sales of advertising under the terms of this Agreement, the percentages of said monies belonging to CORPORATION shall immediately vest in and become the property of the CORPORATION. CONCESSIONAIRE shall be responsible as trustee for said monies until the same are delivered to CORPORATION. Section 4.4 Interest on Past Due Amounts. Any payments not made to CORPORATION when due shall accrue interest at the PAST DUE INTEREST RATE, as herein defined. Section 4.5 Place and Manner of Payments. All sums payable to CORPORATION hereunder shall be made without notice or demand, at the folloHring: Eagle County Air Terminal Corporation Go Eagle County Director of Finance P.O. Box 850 Eagle, Colorado 81631 or at such other place as the CORPORATION may hereafter designate by notice in writing to CONCESSIONAIRE. All sums shall be made in legal tender of the United States. Any check given to the CORPORATION shall be received by it subject to collection, and CONCESSIONAIRE agrees to pay any charges, fees or costs incurred by the CORPORATION for such collection, including reasonable attorney's fees. Section 4.6 Books of Account and Auditing. CONCESSIONAIRE shall keep within the limits of Eagle County true and complete records and accounts of all Gross Revenue and business transacted, including daily bank deposits. Not later than August 31 of each and every year during the Term hereof, CONCESSIONAIRE shall furnish to CORPORATION a true and accurate statement of the total of all revenues and business transacted during the preceding calendar year. Such statement shall be prepared and certified to be true and correct by CONCESSIONAIRE or an independent certified public accountant. Such statement shall be furnished for every calendar year in which business was transacted under this Agreement during the whole or any part of the year. CONCESSIONAIRE expressly agrees that CORPORATION and Auditor and their authorized representatives may inspect any sales tax return or report and accompanying schedules and data which CONCESSIONAIRE may file pursuant to any retail sales tax reports~and waives any claim of confidentiality which it may have in connection therewith. 4.7 Annual Reconciliation. On August 31 of each year CONCESSIONAIRE shall provide Corporation with a reconciliation of its Gross Revenue for the year to ensure that the full Privilege Fee as set forth in Section 4.1 has been paid. To the extent that the full Percentage Privilege Fee or Minimum Privilege Fee, whichever is greater, has not been paid, then CONCESSIONAIRE shall pay the same within fifteen (15) days of the reconciliation. (a) CORPORATION has received with the execution of this Agreement payment of $5,000.00 to be applied to the 50% of Gross Revenue during the initial year term. (b) CONCESSIONAIRE's obligations under this Article 4 shall survive the termination of this contract so that CONCESSIONAIRE will be required to forward reconciliation and any funds due from this Article 4 as long as CONCESSIONAIRE continues to receive revenues from this Agreement. 6 • • ARTICLE 5 MAINTENANCE AND OPERATION Section 5.1 Approval of Installation. The CONCESSIONAIRE shall, without cost to the CORF nRATION, install in the CONCESSION SPACE all fumishings and fixtures necessar< t ~r the customary operation of the advertising, operations author iced by this Agreement: The initial seventeen (17) wall displays shall be fully installed (including advertising) and operational not later than November 1, 2003. All of CONCESSIONAIRE's fumishings and fixtures (or other improvements authorized herein) are subject to prior written approval of CORPORATION. The existing fixtures as of the date of signing this Agreement are acceptable to CORPORATION. Section 5.2 Aesthetics. The aesthetics of the' design of the units must be consistent with the TERMINAL BUILDING architecture and decor. Architecture, including graphics and signage, that does not complement the TERMINAL BUILDING architecture and decor will be disapproved by the CORPORATION. Section 5.3 Maintenance of CONCESSION SPACE. CONCESSIONAIRE is responsible for all maintenance and repairs of its installed equipment, including the regular cleaning of display advertising devices. CONCESSIONAIRE shall ensure that automatic dial telephone equipment and video displays, if any, are kept in working order at all times. The CONCESSIONAIRE shall provide at its own expense such janitorial and cleaning services and supplies as may be necessary or required in the operation and maintenance of its displays. The CONCESSIONAIRE also agrees to keep and maintain the interior of any assigned office or storage areas in a clean, neat and sanitary condition, and attractive in appearance. CONCESSIONAIRE agrees to maintain the quality of all its advertising fixtures. In the event that the display devices become wom or deteriorate in quality in the sole discretion of CORPORATION, CONCESSIONAIRE upon notice from CORPORATION shall immediately replace or restore the fixtures to their original quality. Section 5.4 Repairs. CONCESSIONAIRE shall maintain and make necessary repairs to its fixtures and equipment and appurtenances thereto, including, without limitation, signs, show cases, floor coverings, walls, partitions and lighting. Repairs must be performed during off-peak hours, subject to the approval of the CORPORATION. CONCESSIONAIRE shall repair any damage made to building when installing, removing or maintaining its fixtures, equipment and appurtenances thereto. Section 5.5 Compliance with all laws and Regulations. CONCESSIONAIRE agrees not to use or permit the CONCESSION SPACE to be used for any purpose prohibited by the laws of the United States or the State of Colorado or the ordinances and resolutions of Eagle County, or not authorized hereunder, and it further agrees that it will use the CONCESSION SPACE in accordance with all applicable federal, state and local laws and all general rules and regulations adopted by the CORPORATION or 7 ~ ~ Eagle County for the management, operation and control of the AIRPORT or TERMINAL BUILDING, either promulgated by the CORPORATION or Eagle County on its own initiative or in compliance with regulations or actions of the Federal Aviation Administration or other authorized federal agency. CONCESSIONAIRE further agrees to submit any report or reports or information which the CORPORATION is required by law or regulation to obtain from CONCESSIONAIRE or which CORPORATION may request relating to CONCESSIONAIRE'S operations. Section 5.6 Taxes, licenses, Liens and Fees. CONCESSIONAIRE agrees to promptly pay all taxes, excises, license fees and permit fees of whatever nature applicable to its operations hereunder and to take out and keep current all municipal, state or federal licenses required for the conduct of its business at and upon the CONCESSION SPACE and further agrees not to permit any of said taxes, excises, license fees or permit fees to become delinquent. CONCESSIONAIRE also agrees not to permit any mechanic's or materialman's or any other lien to become attached or be foreclosed upon the CONCESSION SPACE or improvements thereto, or any part or parcel thereof, by reason of any work or labor performed or materials furnished by any mechanic or materialman. CONCESSIONAIRE agrees to furnish to the CORPORATION, upon request, duplicate receipts or other satisfactory evidence showing the prompt payment by it of Social Security, unemployment insurance and worker's compensation insurance, and all required licenses and all taxes. CONCESSIONAIRE further agrees to promptly pay when due all bills, debts and obligations incurred by it in connection with its operations hereunder and not to permit the same to become delinquent and to suffer no lien, mortgage, judgment.or execution to be filed against the CONCESSION SPACE or improvements thereon which will in any way impair the rights of the CORPORATION under this Agreement. Section 5.7 Approval of Advertising. CORPORATION reserves the right to approve advertising display material, and may require CONCESSIONAIRE to remove advertising that, in the sole opinion, of the CORPORATION, is deemed to be offensive, controversial, immoral or inappropriate for the community and the TERMINAL BUILDING. CONCESSIONAIRE, upon instruction of the CORPORATION, shall immediately cause the removal of such advertising material. Section 5.8 Servicing of Displays. Any employee of CONCESSIONAIRE or personnel working on behalf of CONCESSIONAIRE through a subcontract shall be neat, clean, and appropriately groomed. Section 5.9 Structural, Electrical or System Overloading. CONCESSIONAIRE agrees that nothing shall be done or kept on the CONCESSION SPACE and no improvements, changes, alterations, additions, maintenance or repairs shall be made to the CONCESSION SPACE which might impair the structural soundness of the building, result in an overload of utility, plumbing, or HVAC systems serving the TERMINAL BUILDING or interfere with electric, electronic or other equipment at the AIRPORT. In the event of violations hereof, CONCESSIONAIRE agrees to immediately remedy the violation at CONCESSIONAIRE's expense. Section 5.10 Noise, Odors, Vibrations and Annoyances. CONCESSIONAIRE shall conduct its operations in an orderly and proper manner so as not to commit any nuisance in the CONCESSION SPACE or annoy, disturb or be offensive to others in the TERMINAL BUILDING and shall take all reasonable measures, using the latest known and practicable devices and means, to eliminate any unusual, nauseous or objectionable noise, gases, vapors, odors and vibrations and to maintain the lowest possible sound level in its operations. Section 5.11 Title to Improverdar~nts. All improvements including equipment permanently attached to the walls or floors will be considered an integral part of the TERMINAL BUILDING and title to such improvements will vest in the CORPORATION upon termination of this Agreement, free and clear of any liens or encumbrances whatever. ARTICLE 6 UTILITIES AND SERVICES Section 6.1 Corporation Improvements and Services. CORPORATION shall provide and maintain, water, sewer, general lighting, electrical power, and heating and air-conditioning for the TERMINAL BUILDING and make them available to the CONCESSION SPACE. If CONCESSIONAIRE requires additional water, lighting, electrical power, telephone outlets, or adjustments to the air conditioning system, such additional improvements or services shall be subject to the prior written approval of CORPORATION, and any such improvements shall be made at CONCESSIONAIRE's expense Section 6.2 Common Use Services. The CORPORATION may establish common use services at the TERMINAL BUILDING, including but not limited to trash and refuse removal, deliveries, industrial waste handling, recycling, and security guards. The CORPORATION reserves the right to establish charges for common use services based upon documented actual costs. Trash, sewer, and deliveries will be common use services which CONCESSIONAIRE may be required to use and pay its prorata actual share; however, other common use services may be utilized at CONCESSIONAIRE's option. CONCESSIONAIRE agrees to pay the charges for those common use services which are utilized by CONCESSIONAIRE. Section 6.3 Interruption of Services. CONCESSIONAIRE agrees that CORPORATION shall not be liable for failure to supply any utility services. CORPORATION reserves the right to temporarily discontinue utility services at such time as may be necessary by reason of accident, unavailability of employees, repairs, alterations or improvements or whenever by reason of strikes, lockouts, riots, acts of God or any other.happenings beyond the control of the CORPORATION, CORPORATION is unable to furnish such utility services. CORPORATION shall not be 9 • liable for damages to persons or property for any such discontinuance, nor shall such discontinuance in any way be construed as cause for abatement of compensation or operate to release the CONCESSIONAIRE from any of its obligations hereunder, except as othervvise provided in the section entitled '"Damage, Destruction or Loss:' Section 6.4 Access. CORPORATION agrees to use its 4est efforts to permit Concessionaire access to the TERMINAL BUILDING at such times as the parties mutually agree for the purpose of installing'and servicing the display devices and the advertising therein, it being understood that ire order to not interfere with passenger traffic circulation and TERMINAL BUILDING operations, CONCESSIONAIRE may seek to, or be required by CORPORATION to, access the TERMINAL BUILDING and display devices at other than normal business hours. CORPORATION agrees to provide CONCESSIONAIRE and its employees and contractors with necessary security clearances, or alternatively, escorts to secured areas, to permit the installation and servicing of fixtures in the secured areas of the terminal building. . ARTICLE 7 Indemnity, Insurance and Bonds Section 7.1 Indemnity. CONCESSIONAIRE hereby agrees to release and indemnify and save harmless Eagle County and CORPORATION, its officers, agents and employees from and against any and all loss of or damage to property, or injuries to or death of any person or persons, including property and employees or agents of the CORPORATION, and shall defend, indemnify and save harmless CORPORATION, its officers, agents and employees from any and all claims, damages, suits, costs, expense, liability, actions, penalties or proceedings of any kind or nature whatsoever, including worker's compensation claims, of or by anyone whomsoever, in any way resulting from, or arising out of, directly or indirectly, its operations in connection herewith, its construction of the Concession Improvements, or its use or occupancy of any portion of the AIRPORT and including acts and omissions of officers, employees, representatives, suppliers, invitees, contractors, subcontractors, and agents of the CONCESSIONAIRE; provided, that the CONCESSIONAIRE need not release, indemnify or save harmless the CORPORATION, its officers, agents and employees from damages resulting from the sole negligence of the CORPORATION'S officers, agents and employees. The minimum insurance requirements prescribed herein shall not be deemed to limit or define the obligations of CONCESSIONAIRE hereunder. Section 7.2 Insurance. CONCESSIONAIRE further 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 minimum 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. CONCESSIONAIRE shall also maintain in force, during the term of this Agreement, Automobile Liability Insurance, Comprehensive Form, which shall insure all CONCESSIONAIRE'S owned or hired vehicles used by CONCESSIONAIRE at the AIRPORT pursuant to this Agreement, in the minimum amount of One Million Dollars 10 ~, ($1,000,000.00), Bodily Injury and Property Damage Combined Single Limit per occurrence. CONCESSIONAIRE shall also maintain in force during the term of this Agreement Worker's Compensation and Employer's 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 employer's liability insurance. CONCESSIONAIRE agrees that CORPORATION 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 covorage shall be filed with CORPORATION 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 CORPORATION. At least ten (10) days prior to the expiration of said insurance policy or policies, a certificate showing that such insurance coverage has been renewed or extended shall be filed with CORPORATION. If such coverage is canceled or reduced, CONCESSIONAIRE 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 CORPORATION a certificate showing that the required insurance has been reinstated in full, or provided through another insurance company or companies. In the event that CONCESSIONAIRE shall at any time fail to provide CORPORATION with the insurance required under this section within 15 days of a request for such evidence of insurance, CORPORATION may immediately terminate this Agreement. The insurance carried by the CONCESSIONAIRE, as required by this Agreement, shall be primary over any insurance carried by the CORPORATION or County for the CORPORATION'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 Certificate will not be accepted. The Certificate must be signed by the insurance company's authorized representative. The CORPORATION 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 apply. Section 7.3 No Personal Liability. No director, officer or employee of either party hereto shalt be held personally liable under this Agreement or because of its execution or attempted execution. ARTICLE 8 DEFAULT AND TERMINATION Section 8.1 Termination During Initial Year Term. During the first year of this Agreement, the parties agree that CORPORATION may cancel and terminate this 11 ~ ~ Agreement with or without cause and repossess the CONCESSION SPACE, with or without process of law, and without liability for so doing, upon giving 10 days written notice of termination to CONCESSIONAIRE, at the end of which time all the rights hereunder of the CONCESSIONAIRE shall terminate. (a) Termination During Initial Year Term With Cause. If CORPORATION elects to terminate during the initial year term, with cause, which shall mean ~.ermination due to an event of default as set forth in Section 8.2 A through I, CONCESSIONAIRE shall be liable to CORPORATION for all amounts owing at the time of termination, including but noti~l.mited to compensation due plus interest thereon at the Past L ue Interest Rate together with any other amount to fully compensate CORPORATIONV for all loss of compensation, damages, and costs as a result of such termination. Notwithstanding the foregoing CORPORATION shall pay CONCESSIONAIRE for or have an offset against damages owed by CONCESSIONAIRE for any video display or phone board installed by CONCESSIONAIRE pursuant to section 2.1 hereof during year one. CONCESSIONAIRE shall also be liable to CORPORATION for all costs of reletting and repairs or improvements. Notwithstanding re-entry by CORPORATION, CONCESSIONAIRE shall continue to be liable for all amounts due as compensation under this Agreement, on the dates specified and in such amounts as would be payable if termination had not occurred. Upon expiration of the Term, or any earlier termination of the Agreement by CORPORATION, CORPORATION, having credited to the account of CONCESSIONAIRE any amounts recovered through reletting, shall refund, without interest, any amount which exceeds the compensation, damages, and costs payable by CONCESSIONAIRE under this Agreement. (b) Termination During Initial Year Term Without Cause. In the event CORPORATION elects during the initial year term of this Agreement to terminate and cancel the Agreement without cause, the CONCESSIONAIRE shall pay the Privilege Fee through the date of Termination. If CONCESSIONAIRE has paid in excess of the Privilege Fee the excess shall be refunded by CORPORATION within thirty (30) days. Alternatively if on the date of termination CONCESSIONAIRE has not paid the full Privilege Fee, the same shall be paid to CORPORATION within thirty (30) days of termination. Section 8.2 Default. CONCESSIONAIRE shall be in default under this Agreement if CONCESSIONAIRE: A. Fails to timely pay when due to CORPORATION the compensation or any other payment required hereunder; or B. Is in default under any other Agreement/Pecmit with CORPORATION or Eagle County; or C. Becomes insolvent, or takes the benefit of any present or future insolvency or bankruptcy statute, or makes a general assignment for the benefit of creditors, or consents to the appointment of a receiver, trustee or liquidator of any or substantially all of its property; 'or 12 • D. Transfers its interest under this Agreement, without the prior written approval of CORPORATION, operation of law, assignment, sublease or otherwise, to any other person, entity or corporation; or E. Fails to timely submit plans and spec cations, bonds and other preconstruction submittals, fails to promptly begin and complete construction of concession improvements, or fails to occupy and use the CONCESSION SPACE after construction is completed; or F. Aband3,~s, deserts or vacates the CONCESSION SPACE; or G. Suffers .any lien or attachment to be filed against the CONCESSION SP,4CE, the AIRPORT or CORPORATION'S property because of any act or omission of CONCESSIONAIRE, and such lien or attachment is not discharged or contested by CONCESSIONAIRE in good faith by proper legal proceedings within 20 days after receipt of notice thereof by CONCESSIONAIRE; or H. Fails to keep, perform and observe any other promise, covenant or agreement set forth in this Agreement and such failure continues for a period of more than 10 days after delivery by CORPORATION of a written notice of such breach or default, except where a shorter period is specified herein, or where fulfillment of its obligation requires activity over a period of time and CONCESSIONAIRE within 10 days of notice commences in good faith to perform whatever may be required to correct its failure to perform and continues such performance without interruption except for causes beyond its control; or I. Gives its permission to any person to use for any illegal purpose any portion of the TERMINAL BUILDING made available to CONCESSIONAIRE for its use under this Agreement. Section 8.3 Remedies. This Section 8.3 shall only apply during the second and subsequent years of this Agreement if extended beyond the initial one year term: If CONCESSIONAIRE defaults in any of the covenants, terms and conditions herein, the CORPORATION may exercise any one or more of the following remedies: A. CORPORATION may elect to allow this Agreement to continue in full force and effect and to enforce all of CORPORATION'S rights and remedies hereunder, including without limitation the right to collect compensation as it becomes due together with Past Due Interest; or B. CORPORATION may cancel and terminate this Agreement and repossess the CONCESSION SPACE, with or without process of law, and without liability for so doing, upon giving 10 days written notice to CONCESSIONAIRE of its intention to terminate, at the end of which time all the rights hereunder of the CONCESSIONAIRE shall terminate, unless the default, which shall have been stated in such notice, shall have been cured within such 10 days. Notwithstanding the foregoing, CONCESSIONAIRE shall be allowed only one notice of default hereunder which it may cure within the time specified in this section. The second notice shall be final and shall at the option of CORPORATION (1) cancel and terminate all of the rights hereunder of the CONCESSIONAIRE, and CORPORATION may, upon the date specified in such second 13 notice, reenter the CONCESSION SPACE and remove therefrom all property of the CONCESSIONAIRE and store the same at the expense of the CONCESSIONAIRE, or (2) elect to proceed under subparagraph C. below. If CORPORATION elects to terminate, CONCESSIONAIRE shall be liable to CORPORATION for all amounts owing at the time of termination, including but not limited to compensation due plus interest thereon at the Past Due Interest Rate together with any other amount to fully compensate CORPORATION for all loss of compensation, damages, and costs, including attomey's fees, caused by CONCESSIONAIRE'S failure to perform its obligations ~a~reunder, or which in the ordinary course would likely result .. there from. C. Subject to the notice and cure provisions of paragraph B of this Subsection 8.3, CORPORATION may elect to reenter and take possession of the CONCESSION SPACE and expel CONCESSIONAIRE or any person claiming under CONCESSIONAIRE, and remove all effects as may be necessary, without prejudice to any remedies for damages or breach. Such reentry shall not be construed as termination of this Agreement unless a written notice specifically so states; however, CORPORATION reserves the right to terminate the Agreement at any time after reentry. Following reentry, the CORPORATION may relet the CONCESSION SPACE, or any portion thereof, for the account of Concessionaire, on such terms and conditions as CORPORATION may choose, and may make such repairs or improvements as it deems appropriate to accomplish the reletting. CORPORATION shall not be responsible for any failure to relet or any failure to collect compensation due for such reletting. CONCESSIONAIRE shall be liable to CORPORATION for all costs of reletting, including attorney's fees and repairs or improvements. Notwithstanding re-entry by CORPORATION, CONCESSIONAIRE shall continue to be liable for all amounts due as compensation under this Agreement, on the dates specified and in such amounts as would be payable if default had not occurred. Upon expiration of the Term, or any earlier termination of the Agreement by CORPORATION, CORPORATION, having credited to the account of CONCESSIONAIRE any amounts recovered through reletting, shall refund, without interest, any amount which exceeds the compensation, damages, and costs payable by CONCESSIONAIRE under this Agreement. Section 8.4 Remedies Cumulative. The remedies provided in this Agreement shall be cumulative and shall in no way affect any other remedy available to CORPORATION under law or equity. Section 8.5 Waivers. No failure of CORPORATION to insist upon the strict performance of a term, covenant or agreement contained in this Agreement, no failure by CORPORATION to exercise any right or remedy under this Agreement, and no acceptance of full or partial payment during the continuance of any default by CONCESSIONAIRE shall constitute a waiver of any such term, covenant or agreement or a waiver of any such right or remedy or a waiver of any default by CONCESSIONAIRE. 14 ~ ~ Article 9 DAMAGE, DESTRUCTION OR LOSS Section 9.1 Damage to or Destruction of CONCESSION SPACE. If the CONCESSION SPACE, or any portion thereof, is destroyed or damaged by fire or otherwise to an extent which renders it unusable, CORPORATION may rebuild or repair any portions of the building structure destroyed or damaged, and, if the cause was beyond the control of CONCESSION/'all~E, the obligation of CONCESSIONAIRE to pay the compensation hereunder shall abate as to such damaged or destroyed. portions during the time they are unusable. If CORPORATION elects not to proceed with the rebuilding or repair of the building structure, it shall give notice of its intent within 90 days after the destruction or damage. CONCESSIONAIRE may then, at its option, cancel and terminate this Agreement. Section 9.2 Cooperation in Event of Loss. If CORPORATION elects to rebuild, CONCESSIONAIRE must replace all CONCESSION SPACE improvements at its sole cost. CORPORATION and CONCESSIONAIRE shall cooperate with each other in the collection of any insurance proceeds which may be payable in the event of any loss or damage. Section 9.3 Loss or Damage to Property. CORPORATION shall not be liable for arty loss of properly by theft or burglary from the AIRPORT or for any damage to person or property on the AIRPORT resulting from electric lighting, or water, rain or snow, which may come into or issue or flow from any part of the AIRPORT, or from the pipes, plumbing, wiring, gas or sprinklers thereof or that may be caused by the CORPORATION's employees or any other cause, and CONCESSIONAIRE agrees to make no claim for any such loss or damage at any time, except for any abatement of compensation or right to insurance proceeds provided for in this Section. Section 9.4 Mutual Waiver/Insurance Coverage. CORPORATION and CONCESSIONAIRE each waive any and every claim for recovery from the other for any and all loss of or damage to the CONCESSION SPACE or to the contents thereof, which loss or damage is covered by valid and collectible fire and extended insurance policies, to the extent that such loss or damage is recoverable under such insurance policies. Since this mutual waiver will preclude the assignment of any such claim by subrogation or otherwise to an insurance company or any other person, CONCESSIONAIRE agrees to give to each insurance company which has issued, or may issue, to the CONCESSIONAIRE policies of fire and extended coverage insurance, written notice of the terms of this mutual waiver, and to have such insurance policies properly endorsed, if necessary, to prevent the invalidation of the insurance coverage by reason of this waiver. 15 ~ ~ Article 10 MISCELLANEOUS PROVISIONS Section 10.1 Agreement Binding Upon Successors. This Agreement, subject to the provisions of the section entitled "Assignment", shall be binding upon and extend to the heirs, personal representatives, successors and assigns of the respective parties hereto. Section 10.2 Agreement Made in Colorado. Ttois Agreement sha11 be deemed to have been made in and shall be construed in accordance with the laws of the State of Colorado. Section 10.3 Agreement Subordinate to Agreements with "United States." This Agreement is subject and subordinate to the terms, reservations, restrictions and conditions of any existing or future agreements between CORPORATION or Eagle 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 Eagle County for AIRPORT purposes and the expenditure of federal funds for the development of the AIRPORT or AIRPORT system. The provisions of the attached Appendices 1, 2 and 3 are incorporated herein by reference. Section 10.4 Agreement Subordinate to Ground Lease with Eagle County. This agreement is subject to the written approval of Eagle County and is subject and subordinate to the terms, reservation, restrictions and conditions of the Ground Lease and any existing or future agreements between CORPORATION and Eagle County. Section 10.5 Assignment. CONCESSIONAIRE shall not assign this Agreement or in any way transferor hypothecate any of its interest in this Agreement without first obtaining the written consent of the CORPORATION, which consent shall not be unreasonably withheld or delayed. As used herein, "assignment" means and includes, but is not limited to, (i) the grant or transfer of any right, title, possession, lien, encumbrance, security interest or other interest such that Greg Moffet no longer maintains a controlling interest in Tiga Advertising, Inc. (ii) grants or transfers to a single person or entity, including to any other person(s) and entity(ies) directly or indirectly controlled by it or which directly or indirectly control. it, of any right, title, possession, lien, encumbrance security interest or other interest in, on or to the stock or other ownership interest such that Greg Moffet no longer maintains a controlling interest in Tiga Advertising, Inc. (iii) if CONCESSIONAIRE is a limited liability company, a change in the chief operating officer, manager or other person responsible for the day-to-day performance by CONCESSIONAIRE of the Agreement, (iv) the grant or transfer of any right, title, lien, encumbrance, security interest or other interest in, on or to some or all of the income or profits (however they may be measured or defined, e.g., gross. income, gross profit, operating profit, net profit) of CONCESSIONAIRE, and (v) the grant or transfer of any right, title, lien, encumbrance, security interest or other interest in, on or to some or all of the cash flow (however it may be measured or defined) of CONCESSIONAIRE. Notwithstanding the foregoing, a transfer to the estate or the 16 ~ ~ personal representative of a decedent, which transfer is for the purpose of accomplishing disposition by will, contract or intestate succession, shall not be deemed an assignment requiring CORPORATION's consent, but shall require notice to CORPORATION; provided that the disposition by the estate or personal representative shall be an assignment requiring consent. If CONCESSIONAIRE shall assign or attempt to assign its interest in the whole or any part of this Agreement in violation of this section, such assignment shall be void and this Agreement s4 gall automatically terminate. CORPORATION's consent to one assignment shall not be deemed to be a consent to any subsequent assignment. Section 10.6 Bond Indentures. This Agreement is in all respects subject and subordinate to any and all CORPORATION bond indentures applicable to the TERMINAL BUILDING and AIRPORT and to any other bond indentures which should amend, supplement or replace such bond indentures. The parties to this Agreement acknowledge and agree that all property subject to this Agreement which was financed by the net proceeds of tax-exempt bonds is owned by CORPORATION or Eagle County, and CONCESSIONAIRE agrees not to take any action that would impair, or omit to take any action required to confirm, the treatment of such property as owned by CORPORATION or Eagle County for purposes of Section 142(b) of the Internal Revenue Code of 1986, as amended. In particular, the CONCESSIONAIRE agrees to make, and hereby makes, an irrevocable election (binding on itself and all successors in interest under this Agreement) not to claim depreciation or an investment credit with respect to any property subject to this Agreement which was financed by the net proceeds of tax-exempt bonds and shall execute such forms and take such other action as CORPORATION or Eagle County may request in order to implement such election. Section 10.7 Force Majeure. Neither party hereto shall be liable to the other for any failure, delay or interruption in the pertormance of any of the terms, covenants or conditions of this Agreement due to causes beyond the control of that party, including without limitation strikes, boycotts, labor disputes, embargoes, shortages of materials, acts of God, acts of the public enemy, acts of superior governmental authority, weather conditions, floods, riots, rebellion, sabotage or any other circumstance for which such party is not responsible or which is not in its power to control, but in no event shall this paragraph be construed so as to allow CONCESSIONAIRE to reduce or abate its obligation to pay the Monthly Guarantee or Percentage Fee herein. Section 10.8 Inconvenience During Construction. CONCESSIONAIRE recognizes that from time to time during the Term of this Agreement, it may be necessary for CORPORATION to commence or complete extensive programs of construction, expansion, relocation, maintenance and repair in order that the TERMINAL BUILDING and its facilities may be completed and operated in accordance with any present or future master layout plan, and that such construction, expansion, relocation, maintenance and repair may inconvenience the CONCESSIONAIRE in its operation at the AIRPORT. Concessionaire agrees that no liability shall attach to CORPORATION or Eagle County, its officers, agents, employees, contractors, subcontractors and representatives by way of such inconveniences, and CONCESSIONAIRE waives any right to claim damages or other consideration there from. 17 ~ ~ Section 10.9 Nondiscrimination. In connection with the performance of work under this Agreement, CONCESSIONAIRE agrees not to refuse to hire, discharge, promote or demote, or to discriminate in matters of compensation against any person otherwise qualified, solely because of race, color, religion, national origin, gender, age, military status, sexual orientation, marital status, or physical or mental disability, and CONCESSIONAIRE further agrees to insert the foregoing provision in all subcontracts hereunder. CONCESSIONAIRE further agrees to the provisions set forth in Appendix 5, and to insert the provisions thereof into all subcontracts hereunder. Section 10.10 Not Partnership. Notwithstanding the provisions herein ~r payment by CONCESSIONAIRE to CORPORATION of sums based upon a percentage of Gross Revenues, it is expressly understood and agreed that the CORPORATION shall not be construed or held to be a partner, associate or joint venturer of CONCESSIONAIRE in the conduct of its business. CONCESSIONAIRE shall at all times have the status of an independent contractor without the right or authority to impose tort or contractual liability upon the CORPORATION. Section 10.11 Notices. All notices required to be given to CORPORATION or CONCESSIONAIRE hereunder shall be in writing and sent by certified mail, return receipt requested, to: CORPORATION: President Eagle County Air Terminal Corporation P.O. Box 850 Eagle, Colorado 81631 Telephone: (970) 524-8246 Fax: (970) 524-8247 CONCESSIONAIRE: Tiga Advertising, Inc. P.O. Box 268 Vail, CO 81657 Telephone: 970-476-8528 Fax: 970-476-2012 Either party hereto may designate in writing from time to time the address of substitute or supplementary persons within the State of Colorado to receive such notices. The effective date of service of any such notice shall be three days from the date such notice is mailed to Concessionaire or CORPORATION. Section 10.12 Paragraph Headings. The paragraph headings herein are for convenience in reference only and are not intended to define or limit the scope of any provision of this Agreement. 18 ~ ~ Section 10.13 Patee~ts, Trademarks and Copyrights. CONCESSIONAIRE represents that it is the owner of or fully authorized to use any and all services, processes, machines, articles, marks, names or slogans used by it in its operations under this Agreement. CONCESSIONAIRE agrees to save and hold harmless Eagle County and CORPORATION, its officers, employees, agents and representatives from any loss, liability, expense, suit or claim for damages in connection with any actual or alleged infringement of any patent, trademark or copyright arising from any alleged or actual unfair competition or other similar claim arising out of the operations of CONCESSIONAIRE ~mder this Agreement. Section 10.14 Security. CONCESSIONAIRE shall cause its officers, contractors, agents and employees to comply with any and all existing and future security regulations (including Security Plans) adopted by CORPORATION or Eagle County pursuant to Federal Air Regulations of the Federal Aviation Administration, as it may be amended from time to time. Section 10.15 Severability. If any provision in this Agreement is held by a court to be invalid, the validity of other provisions herein which are severable shall be unaffected. Section 10.16 Third Parties. This Agreement does not, and shall not be deemed or construed to, confer upon or grant to any third party or parties (except parties to whom the CONCESSIONAIRE may assign this Agreement in accordance with the terms hereof, and except any successor to CORPORATION any right to claim damages or to bring any suit, action or other proceeding against either CORPORATION or the CONCESSIONAIRE because of any breach hereof or because of any of the terms, covenants, agreements and conditions herein. Section 10.17 Entire Agreement. The parties acknowledge and agree that the provisions herein constitute the entire agreement and that all representations made by any officer, agent or employee of the respective parties unless included herein are null and void and of no effect. No alterations, amendments, changes or modifications, unless expressly reserved to the CORPORATION herein, shall be valid unless executed by an instrument in writing by all the parties with the same formality as this Agreement. Section 10.18 Joint Meetings. CONCESSIONAIRE agrees to meet face-to-face with ECAT or its authorized representatives at least quarterly during the term of this Agreement and more frequently if requested by CORPORATION. 19 ~ ~ IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST; e ~,cle ~ o °aZ y. ~ _ ..o CORPORATION Eagle County Air Terminal Corporation Am M. Menconi, President CONCESSIONAIRE Tiga Advertising, Inc. By: Greg Moffet, 20 • • APPENDIX NO. 1 STANDARD FEDERAL ASSURANCES NOTE: As used below the term "contractor" shall mean and include the "CONCESSIONAIRE," and the term "sponsor" shall mean the "CORPORATION." During the term of this contract, the contractor, for itself, its assignees and successors in interest (hereinafter referred to as; the "contractor") agrees as follows: 1. Compliance with Regulations. The contractor shall comply with the Regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation (hereinafter "DOT") Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. 2. Nondiscrimination. The contractor, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, color, sex, creed or national origin in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulations, including etiiployment practices when the contract covers a program set forth in Appendix B of the Regulations. 3. Solicitations for Subcontractors, Including Procurement of Materials and Eauipment. In all solicitations either by competitive bidding or negotiation made by the contractor for work to be performed under- a subcontract, including procurement of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the contractor of the contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. 4. Information and Reports. The contractor shall provide all information and reports required by the Regulations or directives issued pursuant thereto and shall 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 (FAA) to be pertinent to ascertain compliance with such Regulations, orders, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish this information, the contractor shall so certify to the sponsor of the FAA, as appropriate, and shall set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance. In the event of the contractor's noncompliance with the nondiscrimination provisions of this contract, the sponsor shall impose such contract sanctions as it or the FAA may determine to be appropriate, including, but not limited to: a. Withholding of payments to the contractor under the contract until the contractor complies, and/or 21 L b. Cancellation, termination, or suspension of the contract, in whole or in part. 6. Incorporation of Provisions. The contractor shall include the provisions of paragraphs 1 through 5 in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations or directives issued pursuant thereto. The contractor shall take such action with respect to any subcontractor procurement as the sponsor or the FAA may direct as a means of enforcing such provisions including sanctions for noncompliance. Pro~rided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the contractor may :°equest the sponsor to enter into such litigation to protect the interests of the sponsor .and, in addition, the contractor may request the United States to enter into such litigation to protect the interests of the United States. 22 APPENDIX N0.2 STANDARD FEDERAL ASSURANCES NOTE: As used below, the term "DOT' means the United States Department of Transportation. 1 CONCESSIONAIRE for itself, representatives, successors ~~: interest, and assigns, as a part of the consideration hereof, does hereby covenara and agree as a covenant running with the land that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this agreement for a purpose for which a DOT program or activity is extended or for another purpose involving the provision of similar services or benefits, the CONCESSIONAIRE shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, and as said Regulations may be amended. 2. The CONCESSIONAIRE for itself, representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the lahd: (1) that no person on the grounds of race, color, sex, creed or national origin shall 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 person on the grounds of race, color, sex, creed or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the CONCESSIONAIRE shall use the premises in compliance with all other requirements imposed by or pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, and as said Regulations may be amended. 23 • APPENDIX N0.3 i NONDISCRIMINATION IN AIRPORT EMPLOYMENT OPPORTUNITIES CONCESSIONAIRE assures that it will comply with pertinent statutes, Executive Orders and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in.any activity conducted with or benefiting from Federal assistance. This Provision obligates the ~~ONCESSIONAIRE or its transferee for the period during which ~.ederal assistance is extended to the AIRPORT program, except where Federal assista~~ce is to provide or is in the form of personal property or real property or an interest therein or structures or improvements thereon. Imthese cases, this Provision obligates the CONCESSIONAIRE or any transferee for the longer of the following periods: (a) the period during which the property is used by the 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. In the case of contractors, this Provision binds the contractors from the bid solicitation period through the completion of the contract. It is unlawful for AIRPORT operators and their lessees, tenants, CONCESSIONAIREs and contractors to discriminate against any person because of race, color, national origin, sex, creed, or handicap in public services and employment opportunities. 24 • APPENDIX N0.4 LEASE PROVISIONS REQUIRED OR SUGGESTED BY THE FEDERAL AVIATION ADMINISTRATION A. CONCESSIONAIRE agrees to operate the CONCESSION SPACE for the use and benefit of the public, more specifically as follows: To fumish gos~i, prompt, and efficient services adequate to meet all the demands for its services at the AIRPORT, 2. To fumish said services on a fair, equal, and non-discriminatory basis to all users thereof, and 3. To charge fair, reasonable, and non-discriminatory prices for each unit of sale or service provided that CORPORATION may be allowed to make reasonable and non-discriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. B. CONCESSIONAIRE, for itself, its personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the- land that: No person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination in the use of said facilities. 2. In the construction of any improvements on, over or under such land and the furnishing of .services thereon, no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. 3. CONCESSIONAIRE shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, as said Regulations may be amended. In the event of breach of any of the above non-discriminatory covenants, the CORPORATION shall have the right to terminate the Agreement and to re-enter and repossess the CONCESSION SPACE and the facilities thereon, and hold the same as if said Agreement had never been made or issued. This provision does not become effective until the procedures of 49 CPR Part 21 are followed and completed, including expiration of appeal rights. 25 r: C. Affirmative Action. CONCESSIONAIRE 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 participating in any employment, contracting, or leasing activities covered in 14 CFR Part 152, Subpart E. CONCESSIONAIRE 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.:l he CONCESSIONAIRE assures that it will require ~. that its covered organizations provide assurance to the grantee that they similarly will undertake affirmative action programs and that they will require assurances from their suborganization, as required by 14 CPR Part 152, Subpart E, to the same effect. 2. CONCESSIONAIRE 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 Lease, a consent decree, court order, or similar mechanism. CONCESSIONAIRE agrees that 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. CONCESSIONAIRE agrees to obtain a similar assurance from its sub- lessees' covered organizations, and to cause them to require a similar assurance of their covered suborganizations, as required by 14 CFR Part 152, Subpart E. 26 • • Appendix No. 5 DISADVANTAGED BUSINESS ENTERPRISE PARTICIPATION SECTION 1 GENERAL. Except as the context otherwise requires and unless otherwise expressly provided herein, the capitalized terms in this Appendix to the Agreement shall have the same meaning as any similarly capitalized terms defined in the Agreement or in any appendix thereto. SECTION 2 DBE OBLIGATION. This Agreement is subject to the requirements of the U.S. Department of Transportation's regulations, 49 CFR Part 23, Subpart F. The CONCESSIONAIRE agrees that it will not discriminate against any business owner because of the owner's race, color, national origin, or sex in connection with the award or performance of any concession agreement covered by 49 CFR Part 23, Subpart F. SECTION 3 OTHER AGREEMENTS. The CONCESSIONAIRE agrees to include the above statements in any subcontracts that it enters into and cause those businesses to similarly include the statements in further agreements. SECTION 4 DBE PARTICIPATION IN THIS AGREEMENT. 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