HomeMy WebLinkAboutC08-006AGREEMENT
FOR OPERATION OF RETAIL CONCESSION
EAGLE COUNTY AIR TERMINAL CORPORATION
THIS AGREEMENT, made and entered into this day of December, 2007, by and
between Eagle County Air Terminal Corporation, a nonprofit Colorado corporation
("CORPORATION', and Victoria R. Thorpe C'CONCESSIONAIRE~.
WITNESSETH:
WHEREAS, CORPORATION is owner and operator of the passenger Terminal Building
and associated support facilities ("TERMINAL BUILDING'S located in the Town of
Gypsum on the Eagle County Regional Airport in Eagle County, Colorado, and has the
right to lease portions of the TERMINAL BUILDING and to grant operating privileges
thereon subject to the terms and conditions hereinafter set forth; and
WHEREAS, CONCESSIONAIRE desires to lease a certain location within the
TERMINAL BUILDING to be used as a service area for message therapy, and to 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 has the power and authority to enter into this 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 as generally depicted on the
Terminal Space Plan attached hereto as Exhibit A, Iqcated within the TERMINAL
BUILDING and shall include the plural where applicable. The CORPORATION
and CONCESSIONAIRE acknowledge and agree that the dimensions of the
CONCESSION SPACE as set forth in Exhibit A are approximate, and that for
purposes of the this Agreement ~ is deemed to be 15 square feet.
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D. "Past Due Interest Rate" shall mean interest acxruing at 18% per annum
commencing on the 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 Granted. CORPORATION grants to
CONCESSIONAIRE the right to occupy and use the CONCESSION SPACE to provide a
message chair and pertorm message therapy subject to all the terms and provisions of
this Agreement.
Section 2.2 Uses and Privileges of CONCESSION SPACE. CONCESSIONAIRE
shall enjoy the following privileges in connection with its use of the CONCESSION
SPACE:
A. The nonexclusive right, privilege and obligation to conduct and operate a
message chair at the TERMINAL BUILDING. CONCESSIONAIRE understands
and agrees that it shall not engage in any other business on the AIRPORT under
this agreement.
B. CONCESSIONAIRE may display one (1) sign and one (1) price board. No other
signs, poster or other display of advertising media, including material supplied by
manufacturers of merchandise offered for sale, shall be installed by
CONCESSIONAIRE on or about the TERMINAL BUILDING, including in the
CONCESSION SPACE without the prior written approval of the CORPORATION.
Permission will not be granted for any advertising material, fixture or equipment
which extends beyond the CONCESSION SPACE. The CORPORATION intends
to implement and enforce signage standards in the TERMINAL BUILDING. No
temporary signs or displays shall be permitted without the prior written approval
of the Manager.
Section 2.3 Rights Not Exclusive. CORPORATION reserves the right to grant other
CONCESSIONAIREs the right to pertorm the same or similar services in other locations
in the TERMINAL BUILDING or AIRPORT, and CONCESSIONAIRE understands and
agrees that its right to pertorm such services is not exclusive.
Section 2.4 Means of Access. CONCESSIONAIRE, its agents, invitees, guests,
employees and suppliers have anon-exclusive right of ingress to and egress from the
CONCESSION SPACE by a means of acxess located outside the boundaries of such
space as specfied by CORPORATION. Such access shall, without exception, be in
common with such other persons (including, at the option of the CORPORATION, the
general public) as the CORPORATION may authorize or permit, and the
CORPORATION may at any time close, relocate, reconstruct or modify such means of
access, provided that a reasonable convenient and adequate means of ingress and
egress is available for the same purposes. This right of access is subject to the security
requirements of the section herein entitled °Security°.
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Section 2.5 Right of Inspection. CORPORATION retains the full right of entry in and
to the CONCESSION SPACE for any purpose necessary, incidental to or in connection
with its obligations hereunder, or in the exercise of its functions, or for the purpose of
making any inspection it deems necessary.
Section 2.6 Employee Parking. CONCESSIONAIRE shall be entitled to the use of
parking areas designated for TERMINAL BUILDING employees. CORPORATION
reserves the right to limit the number of spaces to be made available to
CONCESSIONAIRE, to designate specific parking spaces for some or all TERMINAL
BUILDING tenants, to move, contract, and expand the parking area(s) designated for
employee parking, and to make such rules and regulations for the use of the parking
area(s) designated for employee parking, in its sole discretion.
ARTICLE 3
Tenor
Section 3.1 Tenor. The Initial Term of this Agreement shall become effective upon its
execution and shall expire at 12:01 a.m. on April 7, 2008, subject to prior termination as
provided in Article 8 hereof ("Initial Term'. Notwithstanding the foregoing, either party
may terminate this Agreement, with or without cause, upon given the other party ten (10)
days written notice.
Notwithstanding the foregoing, upon the defeasance of the bonds issued by Corporation
to finance acquisition or construction of the Terminal Building and related facilities and
services, following maturity or eariier as provided in the Trust Indenture with respect to
any Bonds 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 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.
Section 3.2 Surrender of CONCESSION SPACE. Upon the expiration or earlier
termination of this Agreement or on the date specified 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, ordinary wear and tear
expected.
Section 3.3 Holding Over. If CONCESSIONAIRE remains in possession of the
leased premises 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 a tenancy from month to month that may be terminated
at any time by CONCESSIONAIRE or CORPORATION upon thirty (30) days written
notice to the other party. Such holding over shall othervvise be upon the same terms and
conditions as set forth in this agreement.
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ARTICLE 4
Compensation
Section 4.1 Compensation. CONCESSIONAIRE covenants and aggress, without
offset, deduction or abatement, to pay CORPORATION as compensation for the rights
and privileges granted by CORPORATION, twenty-five percent (25%) of gross revenues
earned during the term of this Agreement. For purposes of this Agreement "gross
revenues° shall mean all billings and receipts from sales or services or doing business
from the CONCESSION SPACE, whether from sales or services rendered by
CONCESSIONAIRE, whether for cash or credit, regardless of collection in the case of
the latter.
By the 10°i day of the month for each and every month during the Term of this
Agreement, CONCESSIONAIRE shall pay to CORPORATION the sum of money
identified in this Section 4.1 for gross receipts earned in the pret~ding month. Such
payment shall be accompanied by a true and accurate statement signed by
CONCESSIONAIRE of its Gross Revenues for the prec~ling month.
Section 4.2 Interest on Past Due Amounts. Any payments not made to
CORPORATION when due shall acxrue interest at the Past Due Interest Rate, as herein
defined.
Section 4.3 Place and Manner of Payments. All sums payable to CORPORATION
hereunder shall be made without notice at the following:
Eagle County Air Terminal CORPORATION
c!o Eagle County Regional AIRPORT Manager
P.O. Box 850
Eagle, Colorado 81631
or at such other place as the CORPORATION or its authorized representative 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 ~
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
ARTICLE 5
OPERATION AND USE OF CONCESSION SPACE
Section 5.1 Operations. CONCESSIONAIRE agrees to conduct its business to
accommodate the public using the TERMINAL BUILDING and to operate the concession
in the following manner.
A. CONCESSIONAIRE shalt operate the concession in a first-class manner
satisfactory to the CORPORATION. Service shall be prompt, clean,
courteous and efficient
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B. Without exception, prices shall not be greater than 110% of "street prices"
charged in non-AIRPORT locations offering similar services in the Eagle
County area, and shall be subject to the approval of the CORPORATION.
C. CONCESSIONAIRE shall comply with all applicable federal, state and
local laws and regulations governing this type of service.
CONCESSIONAIRE agrees to obtain at its own expense, and maintain at
all times, all licenses and certificates necessary for the operation of its
establishment and to comply with all applicable health, safety and
sanitary laws, regulations and inspections concerning same.
D. The CORPORATION shall have the right to make reasonable objections
to the quality and character of the service rendered the public, and the
appearance and condition of the CONCESSION SPACE.
CONCESSIONAIRE agrees to promptly discontinue or remedy any
objecctionable practice or condition within five (5) days after written notice
by the CORPORATION.
Section 5.2 Hours of Operation. CONCESSIONAIRE may keep its concession
facilities open for business to the public at any time deemed appropriate by
CONCESSIONAIRE.
Prior to providing services under this Agreement, Concessionaire shall submit proposed
operating hours and days to the Terminal Manager for approval.
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Section 5.3 Care of Area. CONCESSIONAIRE agrees that it will keep the
CONCESSION SPACE in a neat, clean, safe, sanitary and orderly condition at all times,
and further agrees that it will keep such area free at all times of all paper, rubbish, spills,
and debris. CONCESSIONAIRE, at its own expense, shall collect and deposit all trash
and refuse at frequent intervals at collection station locations specified by
CORPORATION.
Section 5.4 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, the resolutions or
ordinances of the Town of Gypsum or Eagle County, or AIRPORT rules and regulations,
all as amended from time to time, and not otherwise authorized hereunder, and it further
agrees that it will use the CONCESSION SPACE in acxordance with all applicable
federal, state and local laws, ordinances, resolutions and all rules and regulations
adopted by the County or the CORPORATION for the management, operation and
control of the TERMINAL BUILDING or the AIRPORT, either promulgated by the
CORPORATION or Eagle County, on (respectively) 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 5.5 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.
Section 5.6 Accessibility CONCESSIONAIRE shall not do or permit to be done
anything which might interfere with free access and passage in the CONCESSION
SPACE or the public areas adjacent thereto, or hinder police, firefighting or other
emergency personnel in the discharge of their duties.
ARTICLE 6
UTILITIES AND SERVICES
Section 6.1 CORPORATION Improvements and Services. CORPORATION shall
provide general utilities to the TERMINAL. If CONCESSIONAIRE requires additional
lighting, electrical power, or telephone outlets, 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 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
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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 ks obligations hereunder, except
as otherwise provided in the section entitled "Damage, Destruction or Loss."
ARTICLE 7
Indemnity, Insurance and Bonds
Section 7.1 Indemnity. CONCESSIONAIRE hereby agrees to release and indemnify
and save harmless 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 County and CORPORATION, its
officers, agents and employees from any and all claims, damages, suks, 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
County and CORPORATION, its officers, agerrts and employees from damages resulting
from the sole negligence of the County's and 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.
A certificate or certificates evidencing such insurance coverage 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 ~ 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 (~ 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, CORPORATION may immediately
terminate this Agreement.
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The insurance carried by the CONCESSIONAIRE, as required by this Agreement, shall
be primary over any insurance carried by the CORPORATION 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 Certficate 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 ~ accepted. The
Certificate must be signed by the insuranoe company's authorized representative.
The CORPORATION will conditionally acxept self-insurance under this section, subject
to review and approval of appropriate County and State requirements. All precx;ding
coverages and limits will apply.
Section 7.3 Taxes, Licenses, Liens and Fees. CONCESSIONAIRE agrees to
promptly pay all taxes, excises, license fees and permk 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 urn the
CONCESSION SPACE and further agrees not to permit any of said taxes, excises,
license fees or permit fees to become delinquent. CONCESSIONAIRE agrees to furnish
to the CORPORATION, upon request, duplicate receipts or other satisfactory evidence
showring 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.
ARTICLE 8
DEFAULT AND REMEDIES
Section 8.1 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 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
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D. Transfers its interest under this Agreement, without the prior written approval of
CORPORATION, by reason of death, operation of law, assignment, sublease or
otherwise, to any other person, entity or CORPORATION; or
E. Fails to timely submit plans and specifications, 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. Abandons, deserts or vacates the CONCESSION SPACE; or
G. Suffers any lien or attachment to be filed against the CONCESSION SPACE, 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
30 days after delivery by CORPORATION of a written notice of such breach or
default, except where a shorter period is specfied 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 8.2 Remedies. 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.
Nofin-ithstanding the foregoing, during the Term herein, CONCESSIONAIRE shall
be allowed only two notices of default hereunder which it may cure within the
time specified in this section. The third notice shall be final and without
opportunity for cure and CORPORATION, in its sole discretion, may elect therein
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(1) to cancel and terminate all of the rights hereunder of the CONCESSIONAIRE,
and CORPORATION may, upon the date specified in such third 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) 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 Que Interest
Rate together with any other amount to fully compensate CORPORATION for all
loss of compensation, damages, and costs, including attorney's fees, caused by
CONCESSIONAIRE's failure to perform its obligations hereunder, or which in the
ordinary course would likely result therefrom.
C. 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.
Section 8.3 Remedies Cumulative. The remedies provided in this Agreement shall
be cumulative and shall in noway affect any other remedy available to CORPORATION
under law or equity.
Section 8.4 Waivers. No failure of CORPORATION to insist upon the strict
pertomtance 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.
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 CONCESSIONAIRE, 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 Agneement.
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Section 9.2 Cooperation in Event of Loss. If CORPORATION elects to rebuild,
CONCESSIONAIRE must replace all Concession 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 Properly. CORPORATION shall not be liable for
any loss of property by theft or burglary from the AIRPORT or for any damage to person
or property on the AIRPORT resulting from lightning, 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 WalveNlnsurance 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.
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. This Agreement shall be deemed to
have been made in and shall ~ construed in acxordance 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 fiaieral 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.
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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 transfer or hypothecate any of its interest in this Agreement without first
obtaining the written consent of the CORPORATION, which consent will not be
unreasonably withheld, provided that CONCESSIONAIRE acknowledges that
CORPORATION need not consent to any such assignment or subletting at any time. 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 in, on or to five percent (5%) or more of the stock or other ownership interest of
CONCESSIONAIRE, (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, tifle, possession, lien, encumbrance securrty interest or
other interest in, on or to the stock or other ownership interest which aggregate flue
percent (5%) or more of the stock or other ownership interest of CONCESSIONAIRE,
(iii) if CONCESSIONAIRE is a limited liabil""ity company, a change in the chief operating
officer, manager or other person responsible for the day-today 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 profrt, 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. 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 shall thereupon 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 owner 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 performance of any of the terms, covenants or
G:~ADNIIN~LLEASES 8c AGREIIVIIIdTS~ECAT i •FASES~MASSAGE - THORPE\THORPE MASSAGE CONCESSION.DOC I2
conditions of this Agreement due to causes beyond the control of that party, inGuding
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 programs of construction, expansion,
relocation, maintenance and repair in order that the TERMINAL BUILDING and its
facilities may be completed and operated as ECAT determines, 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 Courlty, its officers, agents,
employees, contractors, subcontractors and representatives by way of such
inconveniences, and CONCESSIONAIRE waives any right to claim damages or other
consideration therefrom.
SECTION 10.9 Nondiscrimination. In connection with the pertomtance of its rights,
privileges and obligations under this Agreement, CONCESSIONAIRE agrees not to
refuse to hire, discharge, promote or demote, or to discriminate in matters of
compensation against any person othennrise 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 4, and to insert the provisions thereof into all
subcontracts hereunder. CONCESSIONAIRE further agrees to the provisions regarding
Disadvantaged Business Enterprises set forth in Appendix 5.
Section 10.10 Not Partnership. Notwithstanding the provisions herein for 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 first class mail, facsimile
(with an original by first class mail), or personal delivery to:
CORPORATION: Am Menconi
President
Eagle County Air Terminal CORPORATION
G:~ADMIN~LEASES 8c AGREIIVIINTS~ECAT LEASES~MASSAGE - THORPE\THORPE MASSAGE CONCESSIOAi.DOC 13
P.O. Box 850
Eagle, Colorado 81631
Phone: (970) 524-8246
Fax: (970) 524-8247
CONCESSIONAIRE: Victoria R. Thorpe
Relaxation Therapist
1630 Spring Creek Road
Gypsum, CO 81637
Phone: (970) 274-0416
Either party hereto may designate in writing from time to time the address of substitute
or supplementary pennons within the State of Colorado to receive such notices. The
effective date of service of any such notice shall be three calendar days after the date
such notice is mailed, the date it is personally delivered or the first business day after
delivery by facsimile.
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.
Section 10.13 Patents and Trademarks. 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 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 under this Agreement.
Section 10.14 Security. CONCESSIONAIRE shall cause its officers, contractors,
agents and employees to comply with any and all e~asting and future security regulations
or Security Plan adopted by CORPORATION or Eagle County pursuant to Part 107,
Federal Air Regulations of the Federal Aviation Administration, and 49CFR1542,
Transportation Security Administration, as they 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 proc~ing 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
G:WDMIN~LLEASES 8c AGREIIVIEIVVT'S~ECAT I.EASES~MASSAGE - THORPE~THORPE MASSAGE CONCESSION.DGC I4
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 modfications,
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
CORPORATION
TION
By:
AIR TERMINAL
President
CONCESSIONAIRE
Victoria R. Thorpe
By.
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