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HomeMy WebLinkAboutECAT21-02 Colorado Mountain Express1 FIRST AMENDMENT TO AGREEMENT FOR OPERATION OF GROUND TRANSPORTATION SERVICES BETWEEN EAGLE COUNTY AIR TERMINAL CORPORATION AND COLORADO MOUNTAIN EXPRESS, INC. THIS First Amendment to the Agreement for Operation of Ground Transportation Services between the Eagle County Air Terminal Corporation, a nonprofit corporation of the State of Colorado ("CORPORATION") and Colorado Mountain Express, Inc., a Colorado Corporation ("CONCESSIONAIRE") (hereinafter "First Amendment") is made and entered into this ______________________. RECITALS WHEREAS, CORPORATION and CONCESSIONAIRE entered into an Agreement for Operation of Ground Transportation Services dated November 21, 2017 ("Original Agreement"); and WHEREAS, the term of the Original Agreement expires on the 30th day of November, 2020, and the parties desire to extend the term of the Original Agreement for an additional year and amend the Compensation terms. FIRST AMENDMENT NOW THEREFORE, in consideration of the foregoing and the mutual rights and obligations as set forth below, the parties agree as follows: 1.The Original Agreement shall be amended to extend the Term to the 30th day of November, 2021. 2. Section 3.1, Term, subsection B of the Original Agreement shall be amended to delete the second sentence of subsection B. The deleted language is shown below for the avoidance of doubt as to what language is being deleted and of no further force or effect: “The Minimum Monthly Guarantee during the months of December through April (“Ski Season Months”) for any renewal period shall be equal to the highest amount proposed for those calendar months during the Term of this AGREEMENT.” 3. Section 4.2 of the Original Agreement shall be deleted in its entirety and replaced with the following language: Section 4.2 Privilege Fee: For the concession privilege granted hereunder, and in addition to the charges paid for the premises, which are described in Section 1.1.C., and Subsection 4.1 hereof, CONCESSIONAIRE shall pay to CORPORATION beginning on the commencement of the Term and continuing for each month thereafter, the: (i) the Percentage DocuSign Envelope ID: EBB11C93-AA2C-4CE0-A99D-9508304A9F47 1/12/2021 ECAT21-02 2 Fee described in Section 4.2 A or (ii) the Minimum Monthly Guarantee described in Section 4.2 B., whichever sum is greater, as follows: A. Percentage Fee. Six percent (6%) of the monthly Gross Revenue under this Agreement in connection with its operations and business at or related to the Airport (the “Percentage Fee”), said Gross Revenue being hereinafter defined in Subsection 4.3. B. Minimum Monthly Guarantee: December 2020: Twenty-two Thousand Five Hundred Dollars ($22,500) January 2021: Forty-five Thousand Dollars ($45,000) February 2021: Forty-five Thousand Dollars ($45,000) March 2021: Forty-five Thousand Dollars ($45,000) April 2021: Twenty-two Thousand Dollars ($22,000) The Minimum Monthly Guarantee shall be adjusted based on an enplanement variable, such that the enplanements in each month (January, February, March, April and December) will be compared to the three-year average of enplanements of the same month in the years 2018, 2019 and 2020. The Minimum Monthly Guarantee will then be adjusted 1:1 according to the percentage change in enplanements. For example, if enplanements in the month of January 2021 are 20,000, and the average of the enplanements in January 2018 (25,000), January 2019 (25,000) and January 2020 (25,000) is 25,000, then the difference is 5,000 or a 20% reduction. That same 20% reduction shall then be applied to the MAG, making the January 2021 MAG $24,000 ($30,000 x .20). If the enplanement variable results in a percent increase, that same percent increase will be applied to increase the MAG. For example, if the enplanement variable in the prior example resulted in a 20% increase in enplanements for January 2021, as compared to January of 2018, 2019 and 2020, then the MAG for January 2021 would be $36,000 ($30,000 x .20). Ten (10) days after the beginning of each calendar month during the Term hereof in which the MAG may be due (January, February, March, April and December), CORPORATION will calculate the enplanement variable for the prior month and provide such percent increase or decrease to CONCESSIONAIRE. Twenty (20) days after the beginning of each calendar month during the Term hereof in which the MAG may be due, CONCESSIONAIRE shall pay to CORPORATION without billing a sum of money which represents the greater of the Percentage Fee or the MAG as adjusted for the previous month. In the event the MAG is not due during any month in the Term hereof, then only the Percentage Fee shall be due and payable for such month. 4. Capitalized terms in this First Amendment will have the same meaning as in the Original Agreement. To the extent that the terms and provisions of the First Amendment conflict with, modify or supplement portions of the Original Agreement, the terms and provisions DocuSign Envelope ID: EBB11C93-AA2C-4CE0-A99D-9508304A9F47 3 contained in this First Amendment shall govern and control the rights and obligations of the parties. 5. Except as expressly altered, modified and changed in this First Amendment, all terms and provisions of the Original Agreement shall remain in full force and effect, and are hereby ratified and confirmed in all respects as of the date hereof. 6. This First Amendment shall be binding on the parties hereto, their heirs, executors, successors, and assigns. IN WITNESS WHEREOF, the parties hereto have executed this FIRST AMENDMENT effective as of the date first written above. CORPORATION: Eagle County Air Terminal Corporation By: __________________________ Kathy Chandler-Henry, President ATTEST: ________________________________ Secretary of Eagle County Air Terminal CONCESSIONAIRE By: _____________________________________ Print Name:______________________________ Title: ___________________________________ DocuSign Envelope ID: EBB11C93-AA2C-4CE0-A99D-9508304A9F47 EVP Hospitality James O’Donnell