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HomeMy WebLinkAboutR94-210 terms for airport car rental agency license and agreementCommissioner (Q moved adoption of the following Resolution: BOARD OF COUNTY COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION NO. 94- 0 IN RE THE MATTER OF ADOPTING THE FORM AND TERMS FOR ON- AND OFF - AIRPORT CAR RENTAL AGENCY LICENSE AND USE AGREEMENTS AND AUTHORIZING THE AIRPORT MANAGER TO ENTER INTO SUCH AGREEMENTS ON BEHALF OF THE COUNTY WHEREAS, pursuant to Sections 30- 11- 107(1) (j) and 41 -4 -106 of the Colorado Revised Statutes the Board of County Commissioners of the County of Eagle, S of Colorado (hereinafter "Board "), has the power and jurisdiction to regulate and to enter into contracts with respect to the operations of the Eagl <s County Regional Airport and facilities thereof, including with respect to ground transpor- tation within the Airport and /or serving the customers of the Airport; and WHEREAS, car rental agencies desire to operate at the Airport, either with off - airport facilities performing only customer pick -up at the Airport or with on- airport customer solicitation/ service facilitiess; and WHEREAS, to assure compliance with Airport Rules and Regula- tions and proper service to the customers of the Airport is desirable to enter into Airport License And Use Agreements with car rental agencies operating at the Airport; and WHEREAS, the Airport Manager has caused to be prepared Airport License And Use Agreements for the purposes of granting Airport privileges to on- and off - Airport car rental agencies, as set forth in Exhibits " A " and "B" attached hereto. Whereas, car rental agency services are essential to the proper accommodation of general and commercial aviation at the Airport. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO: 1. The Airport License And Use Agreements attached hereto are approved, and the Airport Manager is authorized and delegated to enter into such agreement with on- and off - Airport car rental agencies on behalf of the Board. j MOVED, READ AND ADOPTED by the Board of County Commissioners oh the County of Eagle, State of Colorado, this lQqA— day of 1994. ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONER t By: ohnnette Philips, Thai 'ias Commissioner seconded adoption of the foregoing resolut on. The roll having been called, the vote was as follows: Commissioner Johnnette Phillips Commissioner George A. Gates Commissioner James E. Johnson, Jr. This Resolution passed by V — 0 vote of the Board of County Commissioners of the County of Eagle, State of Colorado. \rentcarK.res County Commissioners 1 AIRPORT LICENSE AND USE AGREEMENT FOR ON- AIRPORT CAR RENTAL AGENCY BETWEEN COUNTY OF EAGLE, STATE OF COLORADO AND This Airport License And Use Agreement ( "Agreement ") entered into this day of , 1994, by and between the County of Eagle, State of Colorado, a body politic and corporate, acting by and through its Airport Manager ( "County "), and ( "Concessionaire "). WHEREAS, the County now owns, controls and operates the Eagle County Regional Airport (the "Airport ") located between the towns of Eagle and Gypsum in the County of Eagle, State of Colorado; and WHEREAS, the County is duly authorized by law to administer and govern the Airport, including businesses and services conducted thereat; and WHEREAS, Concessionaire desires to operate an airport car rental agency for travelers utilizing the Airport; and WHEREAS, Concessionaire has entered into an agreement granting it certain space and facilities within the Car Maintenance Facility for soliciting and for serving customers with the operator thereof for the purposes of operating its car rental agency business; and WHEREAS, aviation related services are essential to the proper accommodation of general and commercial aviation at the Airport. NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in this Agreement, the parties hereby agree as follows: ARTICLE ONE RIGHTS AND PRIVILEGES The County hereby grants to Concessionaire a non - exclusive, revocable license to operate its motor vehicles upon the property of the Airport in the conduct of its on- airport car rental agency business and to pick up and discharge its customers at the terminal building and /or the Car Maintenance Facility at the Eagle County Airport for the term and subject to the conditions set forth in this Agreement and in the Airport Ground Transporta- tion Rules and Regulations. As a condition precedent to this Agreement, Concessionaire shall enter into an agreement with the operator(s) of the Car Maintenance Facility for the use of therof for customer service facilities, and, at Concessionaire's option, also for vehicle cleaning and maintenance, fueling, and related services as are reasonably necessary for the exercise of its privileges under this Agreement. Concessionaire agrees that neither it nor its drivers, agents and employees shall solicit customers on Airport premises nor engage in any activities at the Airport intended to persuade members of the public to utilize its vehicles and /or services except within the Car Maintenance Facility as provided by and subject to the restrictions in the agreement for use of the Car Maintenance Facility described above. This Agreement does not authorize Concessionaire to park motor vehicles on Airport property. Any commercial activity not expressly authorized under the terms hereof is expressly prohib- ited. ARTICLE TWO TERM The term of this Agreement shall be effective as of December 1, 1994 and continuing through the 30th day of November, 1995 (the "Termination Date "), unless earlier terminated under the provisions of this Agreement. ARTICLE THREE COMPLIANCE WITH LAWS AND REGULATIONS Concessionaire shall comply with all applicable Federal, state and local laws, ordinances and regulations. Concessionaire, and its employees, contractors and agents, shall observe the Eagle County Airport Rules and Regulations, including but not limited to the Ground Transportation Rules and Regulations, and the Minimum Standards And Requirements For The Conduct Of Commercial Aeronautical Services And Activities ( "Minimum Standards "), as they exist on the date hereof and as they may be modified from time -to -time. The Ground Transporta- tion Rules and Regulations in force at the time of the signing of this Agreement are attached hereto, marked "Exhibit A," and incorporated herein by this reference. The Minimum Standards in force at the time of signing of this Agreement are attached hereto, marked "Exhibit B," and incorporated herein by this reference. 2 County reserves the right to amend the Airport Rules and Regulations and the Minimum Standards in its sole discretion, and all such amendments shall be effective with respect to Conces- sionaire upon their adoption whether or not Concessionaire has received actual notice. ARTICLE FOUR REVENUE AND CHARGES A. Concessionaire Revenues: Concessionaire shall be per- mitted to charge reasonable prices for its services. A report of all charges, past and present, and any changes thereto, shall be available for the County's inspection at all reasonable times. B. County Charges: Concessionaire shall pay to the County a sum equal to six percent of Adjusted Gross Receipts in accor- dance with the Rules and Regulations for Ground Transportation. The fee shall be paid to County by the 15th day of the month for the preceding calendar month. C. Concessionaire Accounting: For the purpose of ascer- taining the amount payable as herein provided, Concessionaire shall keep an accurate account of all daily sales and revenues made by Concessionaire in, on, or from the Airport, the same to be entered into a book of a permanent nature which shall be available to the County for its inspection upon its demand. D. Delinquency Charge: A delinquency charge of two (2) percent per month shall be added to payments required herein - above, which are rendered more than ten days delinquent in addition to any other remedy provided for herein. E. Place of Payment: All payments due the County from Concessionaire shall be delivered to the Airport Manager's Office or to such other place in Eagle County designated in writing by the County. F. Annual Statement. Within sixty (60) days after the end of each calendar year, Concessionaire shall furnish to County an annual statement of its Adjusted Gross Receipts generated during the preceding calendar year, the accuracy and completeness of which statement shall be attested under oath under penalty of perjury by an officer of Concessionaire. The County reserves the right to audit said statement and Concessionaire's books and re- cords, including examination of the general ledger and all other supporting material, including tax returns, at any reasonable time during business hours, verifying the Adjusted Gross Re- ceipts. If the audit establishes that Concessionaire has under- stated or overstated the Adjusted Gross Receipts by $500.00 or more, the entire expense of said audit shall be borne by Conces- sionaire. Any additional payment due from Concessionaire shall 0 forthwith be paid to the County, with interest thereon at 1 -1/2 percent per month from the date such amount originally became payable to the County. Any overpayment by Concessionaire shall be credited against further payments due to the County. G. Disputes. In the event that any dispute may arise as to the Adjusted Gross Receipts collected, the amount claimed due by Concessionaire shall be paid forthwith and the dispute shall be submitted to a certified public accountant, agreeable to both parties, who shall determine the rights of the parties hereunder in conformity with generally accepted accounting principles. The fees due said accountant for such service shall be paid by the unsuccessful party, or in the event the determination is partial- ly in favor of each party, the fee shall be borne equally by the parties. ARTICLE FIVE GENERAL OPERATING PR A. Reservations of the County. For the purposes of this Agreement, "Public Aircraft Facilities" shall mean (1) Runways; (2) Taxiways; (3) Passenger Ramp and Apron Areas; and (4) Any extensions or additions to the above and any other space or facilities provided by the County at the Airport for public and common use by aircraft operators in connection with the landing and taking off of aircraft, or in connection with operations hereinafter authorized to be performed by aircraft operators upon the aforesaid runways, taxiways, and public passenger ramp and apron areas; but only as and to the extent that they are from time to time provided by the County at the Airport for public and common use by aircraft operators. The County reserves the right to further develop or improve the Airport as it sees fit, regardless of the desires or views of Concessionaire, and without interference or hindrance, except that the County may not arbitrarily violate or unreasonably diminish Concessionaire's rights as provided elsewhere in this Agreement except on a temporary basis, or diminish its ability to perform the obligations undertaken by it hereunder; provided, however, that any general or partial closure of any Public Aircraft Facilities for the purpose and duration of construction or repair shall not be considered a violation or diminishing of Concessionaire's rights or ability to perform. The County reserves the right to maintain and keep in repair the Public Aircraft Facilities of the Airport and all publicly owned facilities of the Airport, together with the right to direct and control all activities of Concessionaire in this regard. 12 ,1 The County reserves the right to take any action it consid- ers necessary to protect the aerial approaches of the Airport against obstruction. During the time of war or national emergency, the County shall have the right to lease the Airport or any part thereof to the United States Government for military or naval use, and, if such lease is executed, the provisions of this Agreement insofar as they are inconsistent with the provisions of the lease to the Government, shall be suspended. The County reserves the right to direct and control all activities of Concessionaire at the Airport in the event of an emergency or if Concessionaire's operations are interfering with the use of the Airport by others. Non - compliance with this subsection shall breach or default of this Agreement and in the compliance, the County shall have the right to Agreement, or at the election of the County or or both of said governments, shall have the ril judicially this subsection. constitute a event of such non - terminate this the United States, jht to enforce B. No Exclusive Rights Granted. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 308 of the Federal Aviation Act. The County reserves the right, at its sole discretion, to grant others certain rights and privileges upon the Airport which are identi- cal in part or in whole to those granted to Concessionaire. The County reserves the right, but shall not be obligated, to permit other rental car companies, with whom the airport has not execut- ed an Airport License and Use Agreement, to enter upon the Air- port in general, and the Air Carrier Terminal in particular, to pick up and drop off customers, to purchase advertising space on the Airport and within the Air - Carrier Terminal, and to establish a courtesy phone system on the Airport and within the Air Carrier Terminal, all subject to fees and charges in common with other users of that classification. C. Subordination of Agreement. This Agreement and the rights and privileges thereunder are subject and subordinate to the terms, reservations, restrictions and conditions of any existing or future agreements between the County and the United States, the execution of which has been or may be required as a condition precedent to the transfer of federal rights or property to the County for Airport purposes or the expenditure of federal funds for the extension, expansion or development of the Airport. D. Signs. Concessionaire shall not erect, maintain or display at the Airport any external signs or other advertising without first obtaining the written approval of the County. E Concessionaire shall remove, at its expense, all lettering, signs, and placards erected on the Airport at the expiration of the term of this Agreement. ARTICLE SIX Concessionaire shall obtain and maintain in effect during the term of this Agreement comprehensive public liability and property damage insurance covering all of Concessionaire's activities, operations and facilities on or at the Airport. Said insurance shall name the County and Concessionaire with no less than the minimum coverage as provided in the Rules and Regula- tions for Ground Transportation and relating to all activities Concessionaire chooses to undertake. Such insurance shall be maintained with a company or companies approved by the County. A Certified copy of each insurance policy obtained hereunder or a certificate evidencing the existence of such insurance shall be delivered to the County within ten (10) days after execution of this Agreement. Each such copy or certificate shall contain an endorsement by the insurer obligating the carrier of such insur- ance to furnish the County with thirty (30) days' notice of any intended cancellation, termination or modification of such insurance. Concessionaire further agrees to notify the County in writing as to any amendment or cancellation of such policies. The expense of such insurance shall be paid by Concessionaire. Concessionaire agrees to comply with all of the applicable provisions of the laws of the State of Colorado and of the United States of America pertaining to Employer's Liability Insurance, and further agrees that it will insure and keep insured all liability for compensation under the Workmen's Compensation Act of the State of Colorado. ARTICLE SEVEN AND NON - LIABILITY Concessionaire shall indemnify and hold harmless the County, its Board of County Commissioners and the individual members thereof, its commissions, agencies, departments, officers, agents, employees or servants, and its successors from any and all demands, losses, liabilities, claims or judgments, together with all costs and expenses incident thereto which may accrue against, be charged to, or be recoverable from the County, its Board of County Commissioners, and its individual members there- of, its commissions, agencies, departments, officers, agents, employees or servants and its successors, as a result of the acts or omissions of Concessionaire, its employees or agents, in connection with Concessionaire's use of the Airport premises or in any manner whatsoever arising directly or indirectly out of 2 Concessionaire's exercise of its privileges or performance of its obligations under this Agreement. The County shall give to Con- cessionaire prompt notice of any claim made or suit instituted which in any way, directly or indirectly, affects or might affect Concessionaire and Concessionaire shall have the right to compro- mise or participate in the defense of any such action to the extent of its own interests. Concessionaire shall likewise give prompt notice to the County of any claim or suit which directly affect: of might directly affect Concessionaire's ability to operate hereunder or which in any way affects or might affect the County or the general operations of the Airport. Except as otherwise expressly provided within this Agree- ment, the parties mutually agree that nothing con'Cained in this Agreement, nor the operations hereunder, shall in any way be con- strued to constitute the parties hereto as partners or be con- strued that Concessionaire is an employee, agent or servant of the County, and in no event shall the County become liable for any loss which may result from the operations of Concessionaire, nor for any indebtedness incurred by Concessionaire in the operations of its business. ARTICLE EIGHT It is mutually understood by the respective parties hereto that during the term of this Agreement, Concessionaire may riot assign this Agreement without the written consent of the County, which consent shall be exercised in County's sole and absolute discretion. ARTICLE NINE COOPERATION Concessionaire agrees that so long as it is operating as an pursuant to this Agreement, it shall cooperate in a fair and reasonable way with all other persons and entities operating on the Airport with the permission and approval of the County. 7 z ARTICLE TEN NOTICES Any notices provided for herein shall be in writing and shall be delivered in person or mailed by certified or registered mail, return receipt requested, postage pre -paid, to the party for whom intended at the address set forth below: telephone fax The Board of County Commissioners County of Eagle, State of Colorado P.O. Box 850 Eagle, Colorado 81631 Attn: County Attorney telephone: 303 - 328 -8685 fax: 303 -328 -5219 Either party may change its address by written notice to the other party. Notices are deemed to have been given effective as of the date of delivery if personally delivered, and as of the third day after mailing, if mailed. ARTICLE ELEVEN DEFAULT AND TERMINATION A. Termination by Concessionaire. This Agreement shall be subject to termination by Concessionaire in the event of any one or more of the following events: 1. The abandonment of the Airport as an airport or airfield for any type, class or category of aircraft. 2. The default by County in the performance of any of the terms, covenants or conditions of this Agreement, and the failure of the County to remedy or undertake to remedy, to Concessionaire's satisfaction, such default for a period of thirty (30) days after receipt of notice from Concessionaire to remedy the same. 3. Damage to or destruction of all or a material part of the Airport facilities necessary to the operation of Concessionaire's business. 4. The lawful assumption by the United States, or any authorized agency thereof, of the operation, control or use of the Airport, or any substantial part or parts E thereof, in such a manner as to restrict substantially Concessionaire from conducting business operations for a period in excess of 180 days. B. Termination by the County. This Agreement shall be subject to termination by the County in the event of any one or more of the following events: 1. The default by Concessionaire i:, the performance of any of the terms, covenants or conditions of this Agreement, and the failure of Concessionaire to remedy, or undertake to remedy, to County's satisfaction, such default for a period of thirty (30) days after receipt of notice from County to remedy the same. 2. Concessionaire files voluntary petition in bank- ruptcy, including a reorganization plai., makes a gener- al or other assignment for the benefit of creditors, is adjudicated as bankrupt or if a receiver is appointed for the property or affairs of Concessionaire and such receivership is not vacated within forty -five (45) days after the appointment of such receiver. C. Exercise of the rights of termination set forth in Paragraphs A and B above, shall be by notice to the other party within thirty (30) days following the event giving rise to the termination. D. Causes of Breach; Waiver. 1. Neither party shall be held to be in breach of this Agreement because of any failure to perform any of its obligations hereunder if said failure is due to any cause for which it is not responsible and over which it has no control; provided, however, that the forego- ing provision shall not apply to failures by Conces- sionaire to pay fees or other charges to the County. 2. The waiver of any breach, violation or default in or with respect to the performance or observance of the covenants and conditions contained herein shall not be taken to constitute a waiver of any such subsequent breach, violation or default in or with respect to the same or any other covenants or condition hereof. ARTICLE TWELVE DUTY TO OBTAIN REQUIRED PERMITS Concessionaire shall, at its sole expense, obtain and maintain in good standing all proper and necessary permits, including the permits described in the Ground Transportation L•] Rules and Regulations, and licenses necessary to carry out and perform its privileges and obligations under this Agreement. ARTICLE THIRTEEN OPERATING STANDART In providing any of the required and /or authorized services or activities specified in this Agreement, Concessionaire shall operate for the use and benefit of the public and shall meet or exceed the following standards: A. Concessionaire shall furnish service on a fair, reason- able and non - discriminatory basis to all users of the Airport. Concessionaire shall furnish gcod, prompt and efficient service adequate to meet all reasonable demands for its services at the Airport. Concessionaire shall charge fair, reasonable, and non- discriminatory prices for each unit of sale or service; provided however, that Concessionaire may be allowed to make reasonable and non - discriminatory discounts, rebates or other similar types of price reductions to volume purchasers. Concessionaire specif- ically covenants that no person on the grounds of race, color, sex or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimina- tion in the participation in or use of Concessionaire's services. B. Concessionaire shall not discriminate against any person or class of persons by reason of race, color, sex, creed, religion, handicap or national origin in providing any services or in the use of any facilities provided for the public in any manner prohibited by Title 49 Code of Federal Regulations, Part 21, and shall comply with the letter and spirit of the Colorado Anti - Discrimination Act of 1957, as amended, and any other laws and regulations respecting discrimination in unfair employment practices, and shall comply with such enforcement procedures as any governmental authority might demand that the County take for the purpose of complying with any such laws and regulations. C. Concessionaire assures that it will undertake an affir- mative 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. The County assures that it will require that its covered organizations provide assurance to the Conces- sionaire that they similarly will undertake affirmative action programs and that they will require assurances from their suborganization, as required by 14 CFR Part 152, Subpart E, to the same effect. 10 D. 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 agreement, a consent decree, court order, or similar mechanism. E. Concessionaire agrees that a state or local affirmative action plan will be used in lieu of any affirmative action plan or steps required by 14 CFR Part 152, Subpart E, only when they fully meet the standards set forth in 14 CFR 152.409. F. Concessionaire shall provide, at its sole expense, a sufficient number of employees to provide effectively and effi- ciently the services required or authorized in this Agreement. G. Concessionaire shall control the conduct, demeanor and appearance of its employees, who shall be trained by Concession- aire and who shall possess such technical qualifications and hold such certificates of qualification as may be required in carrying out assigned duties. It shall be the responsibility of Conces- sionaire to maintain close supervision over its employees to assure a high standard of service to customers of Concessionaire. H. Concessionaire shall meet all expenses and payments in connection with the rights and privileges herein granted, includ- ing taxes, permit fees, license fees and assessments lawfully levied or assessed upon Concessionaire. Concessionaire may; however, at its sole expense and cost, contest any tax, fee or assessment. I. Concessionaire shall comply with all Federal, state and local laws, rules and regulations which may apply to the conduct of the business contemplated, including rules and regulations promulgated by the County, and Concessionaire shall keep in effect and post in a prominent place all necessary and /or re- quired licenses or permits. J. It is expressly understood and agreed that, in provid- ing required and authorized services pursuant to this Agreement, Concessionaire shall have the right to choose, in its sole discretion, its vendors and suppliers. ARTICLE FOURTEEN GRIEVANCE PROCEDURE The parties both recognize that it is in the public interest and to their mutual benefit that a satisfactory range of fixed base air operation services be made available to the public in a prompt, efficient and courteous manner. To that end, Concession- aire and the County shall meet together from time to time, upon 184 the written request of either, for the purpose of addressing any complaints which may have been received by either and reviewing in general the aviation related services being furnished by Concessionaire from the Premises. Each party agrees to promptly undertake such action as may be reasonable and appropriate to remedy the situation giving rise to any such complaints and /or any operational deficiencies or hindrances thereto. ARTICLE FIFTEEN RIGHT OF INGRESS AND EGRESS Concessionaire shall have at all times the full and free right of ingress to and egress from the Airport. such right shall also extend to its employees, customers, passengers, guests, suppliers. ARTICLE SI %TEEN NO PRIVATE CAUSE OF ACTION The rights herein contracted for shall inure solely to the benefit of the parties to this Agreement, and nothing herein shall be construed to grant a cause of action to non - parties claiming as third party beneficiaries or otherwise. ARTICLE SEVENTEEN ADDITIONAL CONDITIa A. All the covenants, conditions, and provisions in this Agreement shall extend to and bind the legal representatives, successors, and assigns of the respective parties hereto. B. This Agreement shall be construed under the laws of the State of Colorado. Any covenant, condition, or provision herein contained that is held to be invalid by any court of competent jurisdiction shall be considered deleted from this Agreement, but such deletion shall in no way affect any other covenant, condi- tion or provision herein contained so long as such deletion does not materially prejudice the County or Concessionaire in their respective rights and obligations contained in the valid cove- nants, conditions, or provisions of this Agreement. C. All amendments to this Agreement must be made in writing by mutual agreement of the parties, and no oral amend- ments shall be of any force or effect whatsoever. D. The clause headings appearing in this Agreement have been inserted for the purpose of convenience and ready reference. They do not purport to, and shall not be deemed to, define, limit or extend the scope or intent of the clauses to which they appertain. 12 i E. This Agreement supersedes all previous communications, negotiations and /or contracts between the respective parties hereto, either verbal or written, and the same not expressly contained herein are hereby withdrawn and annulled. This is an integrated agreement and there are no representations about any of the subject matter hereof except as expressly set forth herein. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the year and date first above written. COUNTY OF EAGLE, STATE OF COLORADO, By: Dan Reynolds Airport Manager zz STATE OF COLORADO ) ) ss County of Eagle ) The foregoing instrument was acknowledged before me this day of , 1994, by My commission expires Notary Public \onairport.car 13 1° AIRPORT LICENSE AND USE AGREEMENT FOR OFF - AIRPORT CAR RENTAL AGENCY BETWEEN COUNTY OF EAGLE, STATE OF COLORADO AND This Airport License And Use Agreement ( "Agreement ") entered into this day of , 1994, by and between the County of Eagle, State of Colorado, a body politic and corporate, acting by and through its Airport Manager ( "County "), and ( "Concessionaire "). WITNESSETH: WHEREAS, the County now owns, controls and operates the Eagle County Regional Airport (the "Airport ") located between the towns of Eagle and Gypsum in the County of Eagle, State of Colorado; and WHEREAS, the County is duly authorized by law to administer and govern the Airport, including businesses and services conducted thereat; and WHEREAS, Concessionaire desires to operate an off - airport car rental agency for travelers utilizing the Airport which business will be located off the Airport; and WHEREAS, aviation related services are essential to the proper accommodation of general and commercial aviation at the Airport. NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in this Agreement, the parties hereby agree as follows: ARTICLE ONE RIGHTS AND PRIVILEGES The County hereby grants to Concessionaire a non - exclusive, revocable license to operate its motor vehicles upon the property of the Airport in the conduct of its off- airport car rental agency business and to pick up and discharge its pre- booked customers at the terminal building at the Eagle County Airport for the term and subject to the conditions set forth in this Agreement and in the Airport Ground Transportation Rules and Regulations. This Agreement does not authorize Concessionaire to park motor vehicles on Airport property. Any commercial activity not expressly authorized under the terms hereof is expressly prohib- ited. 1 LEXHIBIT Concessionaire agrees that neither it nor its drivers, agents and employees shall solicit customers on Airport premises nor engage in any activities at the Airport intended to persuade members of the public to utilize its vehicles and /or services. Concessionaire may enter into any lawful agreement(s) with the operator(s) of the Airport terminal or of the Airport Car Maintenance Facility for the use of those facilities for vehicle cleaning and maintenance, fueling, and related services, as are reasonably necessary for the exercise of its privileges under this Agreement. ARTICLE TWO TERM The term of this Agreement shall be effective as of December 1, 1994 and continuing through the 30th day of November, 1995 (the "Termination Date "), unless earlier terminated under the provisions of this Agreement. ARTICLE THREE COMPLIANCE WITH LAWS AND REGULATIONS Concessionaire shall comply with all applicable Federal, state and local laws, ordinances and regulations. Concessionaire, and its employees, contractors and agents, shall observe the Eagle County Airport Rules and Regulations, including but not limited to the Ground Transportation Rules and Regulations, as they exist on the date hereof and as they may be modified from time -to -time. The Ground Transportation Rules and Regulations in force at the time of the signing of this Agreement are attached hereto, marked "Exhibit A," and incorporated herein by this reference. County reserves the right to amend the Airport Rules and Regulations in its sole discretion, and they shall be effective with respect to Concessionaire upon their adoption whether or not Concessionaire has received actual notice. ARTICLE FOUR REVENUE AND CHARGES A. Concessionaire Revenues: Concessionaire shall be per- mitted to charge reasonable prices for its services. A report of all charges, past and present, and any changes thereto, shall be available for the County's inspection at all reasonable times. 2 B. County Charges: Concessionaire shall pay to the County a sum equal to six percent of Adjusted Gross Receipts in accor- dance with the Rules and Regulations for Ground Transportation. The fee shall be paid to County by the 15th day of the month for the preceding calendar month. C. Concessionaire Accounting: For the purpose of ascer- taining the amount payable as herein provided, Concessionaire shall keep an accurate account of all daily sales and revenues made by Concessionaire in, on, or from the Airport, the same to be entered into a book of a permanent nature which shall be available to the County for its inspection upon its demand. D. Delinquency Charge: A delinquency charge of two (2) percent per month shall be added to payments required herein - above, which are rendered more than ten days delinquent in addition to any other remedy provided for herein. E. Place of Payment: All payments due the County from Concessionaire shall be delivered to the Airport Manager's Office or to such other place in Eagle County designated in writing by the County. F. Annual Statement. Within sixty (60) days after the end of each calendar year, Concessionaire shall furnish to County an annual statement of its Adjusted Gross Receipts generated during the preceding calendar year, the accuracy and completeness of which statement shall be attested under oath under penalty of perjury by an officer of Concessionaire. The County reserves the right to audit said statement and Concessionaire's books and re- cords, including examination of the general ledger and all other supporting material, including tax returns, at any reasonable time during business hours, verifying the Adjusted Gross Re- ceipts. If the audit establishes that Concessionaire has under- stated or overstated the Adjusted Gross Receipts by $500.00 or more, the entire expense of said audit shall be borne by Conces- sionaire. Any additional payment due from Concessionaire shall forthwith be paid to the County, with interest thereon at 1 -1/2 percent per month from the date such amount originally became payable to the County. Any overpayment by Concessionaire shall be credited against further payments due to the County. G. Disputes. In the event that any dispute may arise as to the Adjusted Gross Receipts collected, the amount claimed due by Concessionaire shall be paid forthwith and the dispute shall be submitted to a certified public accountant, agreeable to both parties, who shall determine the rights of the parties hereunder in conformity with generally accepted accounting principles. The fees due said accountant for such service shall be paid by the unsuccessful party, or in the event the determination is partial- ly in favor of each party, the fee shall be borne equally by the parties. 3 3 ARTICLE FIVE GENERAL OPERATING PROVISIONS A. Reservations of the County. For the purposes of this Agreement, "Public Aircraft Facilities" shall mean (1) Runways; (2) Taxiways; (3) Passenger Ramp and Apron Areas; and (4) Any extensions or additions to the above and any other space or facilities provided by the County at the Airport for public and common use by aircraft operators in connection with the landing and taking off of aircraft, or in connection with operations Hereinafter authorized to be performed by aircraft operators upon the aforesaid runways, taxiways, and public passenger ramp and apron areas; but only as and to the c­tent that they are from time to time provided by the County at the Airport for public and common use by aircraft operators. The County reserves the right to further develop or improve the Airport as it sees fit, regardless of the desires or views of Concessionaire, and without interference or hindrance, except that the County may not arbitrarily violate or unreasonably diminish Concessionaire's rights as provided elsewhere in this Agreement except on a temporary basis, or diminish its ability to perform the obligations undertaken by it hereunder; provided, however, that any general or partial closure of any Public Aircraft Facilities for the purpose and duration of construction or repair shall not be considered a violation or diminishing of Concessionaire's rights or ability to perform. The County reserves the right to maintain and keep in repair the Public Aircraft Facilities of the Airport and all publicly owned facilities of the Airport, together with the right to direct and control all activities of Concessionaire in this regard. The County reserves the right to take any action it consid- ers necessary to protect the aerial approaches of the Airport against obstruction. During the time of war or national emergency, the County shall have the right to lease the Airport or any part thereof to the United States Government for military or naval use, and, if such lease is executed, the provisions of this Agreement insofar E. as they are inconsistent with the provisions of the lease to the Government, shall be suspended. The County reserves the right to direct and control all activities of Concessionaire at the Airport in the event of an emergency or if Concessionaire's operations are interfering with the use of the Airport by others. Non - compliance with this subsection shall breach or default of this Agreement and in the compliance, the County shall have the right to Agreement, or at the election of the County or or both of said governments, shall have the rii judicially this subsection. constitute a event of such non - terminate this the United States, 3ht to enforce B. No Exclusive Rights Granted. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 308 of the Federal Aviation Act. The County reserves the right, at its sole discretion, to grant others certain rights and privileges upon the Airport which are identi- cal in part or in whole to those granted to Concessionaire. The County reserves the right, but shall not be obligated, to permit other rental car companies, with whom the airport has not execut- ed an Airport License and Use Agreement, to enter upon the Air- port in general, and the Air Carrier Terminal in particular, to pick up and drop off customers, to purchase advertising space on the Airport and within the Air - Carrier Terminal, and to establish a courtesy phone system on the Airport and within the Air Carrier Terminal, all subject to fees and charges in common with other users of that classification. C. Subordination of Agreement. This Agreement and the rights and privileges thereunder are subject and subordinate to the terms, reservations, restrictions and conditions of any existing or future agreements between the County and the United States, the execution of which has been or may be required as a condition precedent to the transfer of federal rights or property to the County for Airport purposes or the expenditure of federal funds for the extension, expansion or development of the Airport. D. Signs. Concessionaire shall not erect, maintain or display at the Airport any external signs or other advertising without first obtaining the written approval of the County. Concessionaire shall remove, at its expense, all lettering, signs, and placards erected on the Airport at the expiration of the term of this Agreement. ARTICLE SIB 11 } Concessionaire shall obtain and maintain in effect during the term of this Agreement comprehensive public liability and property damage insurance covering all of Concessionaire's activities, operations and facilities on or at the Airport. Said insurance shall name the County and Concessionaire with no less than the minimum coverage as provided in the Rules and Regula- tions for Ground Transportation and relating to all activities Concessionaire chooses to undertake. Such insurance shall be maintained with a company or companies approved by the County. A Certified copy of each insurance policy obtained hereunder or a certificate evidencing the existence of such insurance shall be delivered to the County within. ten (10) days after execution of this Agreement. Each such copy or certificate shall contain an endorsement by the insurer obligating the carrier of such insur- ance to furnish the County with thirty ,_30) days' notice of any intended cancellation, termination or modification of such insurance. Concessionaire further agrees to notify the County in writing as to any amendment or cancellation of such policies. The expense of such insurance shall be paid by Concessionaire. Concessionaire agrees to comply with all of the applicable provisions of the laws of the State of Colorado and of the United States of America pertaining to Employer's Liability Insurance, and further agrees that it will insure and keep insured all liability for compensation under the Workmen's Compensation Act of the State of Colorado. F11 k *to WaFfall aF;l INDEMNIFICATIONS AND NON - LIABILITY Concessionaire shall indemnify and hold harmless the County, its Board of County Commissioners and the individual members thereof, its commissions, agencies, departments, officers, agents, employees or servants, and its successors from any and all demands, losses, liabilities, claims or judgments, together with all costs and expenses incident thereto which may accrue against, be charged to, or be recoverable from the County, its Board of County Commissioners, and its individual members there- of, its commissions, agencies, departments, officers, agents, employees or servants and its successors, as a result of the acts or omissions of Concessionaire, its employees or agents, in connection with Concessionaire's use of the Airport premises or in any manner whatsoever arising directly or indirectly out of Concessionaire's exercise of its privileges or performance of its obligations under this Agreement. The County shall give to Con- cessionaire prompt notice of any claim made or suit instituted which in any way, directly or indirectly, affects or might affect Concessionaire and Concessionaire shall have the right to compro- mise or participate in the defense of any such action to the extent of its own interests. Concessionaire shall likewise give prompt notice to the County of any claim or suit which directly affects or might directly affect Concessionaire's ability to operate hereunder or which in any way affects or might affect the County or the general operations of the Airport. Except as otherwise expressly provided within this Agree- ment, the parties mutually agree that nothing contained in this Agreement, nor the operations hereunder, shall in any way be con- strued to constitute the parties hereto as partners or be con- strued that Concessionaire is an employee, agent or servant of the County, and in no event shall the County become liable for any loss which may result from the operations of Concessionaire, nor for any indebtedness incurred by Concessionaire in the operations of its business. ARTICLE EIGHT ASSIGNMENT It is mutually understood by the respective parties hereto that during the term of this Agreement, Concessionaire may not assign this Agreement without the written consent of the County, which consent shall be exercised in County's sole and absolute discretion. ARTICLE NINE COOPERATION Concessionaire agrees that so long as it is operating as an pursuant to this Agreement, it shall cooperate in a fair and reasonable way with all other persons and entities operating on the Airport with the permission and approval of the County. ARTICLE TEN NOTICES Any notices provided for herein shall be in writing and shall be delivered in person or mailed by certified or registered mail, return receipt requested, postage pre -paid, to the party for whom intended at the address set forth below: telephone fax The Board of County Commissioners County of Eagle, State of Colorado P.O. Box 850 Eagle, Colorado 81631 WA Attn: County Attorney telephone: 303 - 328 -8685 fax: 303 - 328 -5219 Either party may change its address by written notice to the other party. Notices are deemed to have been given effective as of the date of delivery if personally delivered, and as of the third day after mailing, if mailed. ARTICLE ELEVEN DEFAULT AND TERMINATION A. Termination by Concessionaire. This Agreement shall be subject to termination by Concessionaire in the event of any one or more of the following events: 1. The abandonment of the Airport as an airport or airfield for any type, class or category of aircraft. 2. The default by County in the performance of any of the terms, covenants or conditions of this Agreement, and the failure of the County to remedy or undertake to remedy, to Concessionaire's satisfaction, such default for a period of thirty (30) days after receipt of notice from Concessionaire to remedy the same. 3. Damage to or destruction of all or a material part of the Airport facilities necessary to the operation of Concessionaire's business. 4. The lawful assumption by the United States, or any authorized agency thereof, of the operation, control or use of the Airport, or any substantial part or parts thereof, in such a manner as to restrict substantially Concessionaire from conducting business operations for a period in excess of 180 days. B. Termination by the County. This Agreement shall be subject to termination by the County in the event of any one or more of the following events: 1. The default by Concessionaire in the performance of any of the terms, covenants or conditions of this Agreement, and the failure of Concessionaire to remedy, or undertake to remedy, to County's satisfaction, such default for a period of thirty (30) days after receipt of notice from County to remedy the same. 2. Concessionaire files voluntary petition in bank- ruptcy, including a reorganization plan, makes a gener- al or other assignment for the benefit of creditors, is 0 adjudicated as bankrupt or if a receiver is appointed for the property or affairs of Concessionaire and such receivership is not vacated within forty -five (45) days after the appointment of such receiver. C. Exercise of the rights of termination set forth in Paragraphs A and B above, shall be by notice to the other party within thirty (30) days following the event giving rise to the termination. D. Causes of Breach; Waiver. 1. Neither party shall be held to be in breach of this Agreement because of any failure to perform any of its obligations hereunder if said failure is due to any cause for which it is not responsible and over which it has no control; provided, however, that the forego- ing provision shall not apply to failures by Conces- sionaire to pay fees or other charges to the County. 2. The waiver of any breach, violation or default in or with respect to the performance or observance of the covenants and conditions contained herein shall not be taken to constitute a waiver of any such subsequent breach, violation or default in or with respect to the same or any other covenants or condition hereof. ARTICLE TWELVE DUTY TO OBTAIN REQUIRED PERMITS Concessionaire shall, at its sole expense, obtain and maintain in good standing all proper and necessary permits, including the permits described in the Ground Transportation Rules and Regulations, and licenses necessary to carry out and perform its privileges and obligations under this Agreement. f' ARTICLE THIRTEEN OPERATING STANDARI In providing any of the required and /or authorized services or activities specified in this Agreement, Concessionaire shall operate for the use and benefit of the public and shall meet or exceed the following standards: A. Concessionaire shall furnish service on a fair, reason- able and non - discriminatory basis to all users of the Airport. Concessionaire shall furnish good, prompt and efficient service adequate to meet all reasonable demands for its services at the Airport. Concessionaire shall charge fair, reasonable, and non- discriminatory prices for each unit of sale or service; provided however, that Concessionaire may be allowed to make reasonable and non - discriminatory discounts, rebates or other similar types of price reductions to volume purchasers. Concessionaire specif- ically covenants that no person on the grounds of race, color, sex or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimina- tion in the participation in or use of Concessionaire's services. B. Concessionaire shall not discriminate against any person or class of persons by reason of race, color, sex, creed, religion, handicap or national origin in providing any services or in the use of any facilities provided for the public in any manner prohibited by Title 49 Code of Federal Regulations, Part 21, and shall comply with the letter and spirit of the Colorado Anti - Discrimination Act of 1957, as amended, and any other laws and regulations respecting discrimination in unfair employment practices, and shall comply with such enforcement procedures as any governmental authority might demand that the County take for the purpose of complying with any such laws and regulations. C. Concessionaire assures that it will undertake an affir- mative 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. The County assures that it will require that its covered organizations provide assurance to the Conces- sionaire that they similarly will undertake affirmative action programs and that they will require assurances from their suborganization, as required by 14 CFR Part 152, Subpart E, to the same effect. D. 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 10 program or by any Federal, state or local agency or court, including those resulting from a conciliation agreement, a consent decree, court order, or similar mechanism. E. Concessionaire agrees that a state or local affirmative action plan will be used in lieu of any affirmative action plan or steps required by 14 CFR Part 152, Subpart E, only when they fully meet the standards set forth in 14 CFR 152.409. F. Concessionaire shall provide, at its sole expense, a sufficient number of employees to provide effectively and effi- ciently the services required or authorized in this Agreement. G. Concessionaire shall control the conduct, demeanor and appearance of its employees, who shall be trained by Concession- aire and who shall possess such technical qualifications and hold such certificates of qualification as may be required in carrying out assigned duties. It shall be the responsibility of Conces- sionaire to maintain close supervision over its employees to assure a high standard of service to customers of Concessionaire. H. Concessionaire shall meet all expenses and payments in connection with the rights and privileges herein granted, includ- ing taxes, permit fees, license fees and assessments lawfully levied or assessed upon Concessionaire. Concessionaire may, however, at its sole expense and cost, contest any tax, fee or assessment. I. Concessionaire shall comply with all Federal, state and local laws, rules and regulations which may apply to the conduct of the business contemplated, including rules and regulations promulgated by the County, and Concessionaire shall keep in effect and post in a prominent place all necessary and /or re- quired licenses or permits. J. It is expressly understood and agreed that, in provid- ing required and authorized services pursuant to this Agreement, Concessionaire shall have the right to choose, in its sole discretion, its vendors and suppliers. ARTICLE FOURTEEN GRIEVANCE PROCEDURE The parties both recognize that it is in the public interest and to their mutual benefit that a satisfactory range of fixed base air operation services be made available to the public in a prompt, efficient and courteous manner. To that end, Concession- aire and the County shall meet together from time to time, upon the written request of either, for the purpose of addressing any complaints which may have been received by either and reviewing in general the aviation related services being furnished by MR Concessionaire from the Premises. Each party agrees to promptly undertake such action as may be reasonable and appropriate to remedy the situation giving rise to any such complaints and /or any operational deficiencies or hindrances thereto. ARTICLE FIFTEEN RIGHT OF INGRESS AND EGRESS Concessionaire shall have at all times the full and free right of ingress to and egress from the Airport. Such right shall also extend to its employees, customers, passengers, guests, suppliers. ARTICLE SISTFEN NO PRIVATE CAUSE OF ACTION The rights herein contracted for shall inure solely to the benefit of the parties to this Agreement, and nothing herein shall be construed to grant a cause of action to non - parties claiming as third party beneficiaries or otherwise. ARTICLE SEVENTEEN ADDITIONAL CONDITIONS A. All the covenants, conditions, and provisions in this Agreement shall extend to and bind the legal representatives, successors, and assigns of the respective parties hereto. B. This Agreement shall be construed under the laws of the State of Colorado. Any covenant, condition, or provision herein contained that is held to be invalid by any court of competent jurisdiction shall be considered deleted from this Agreement, but such deletion shall in no way affect any other covenant, condi- tion or provision herein contained so long as such deletion does not materially prejudice the County or Concessionaire in their respective rights and obligations contained in the valid cove- nants, conditions, or provisions of this Agreement. C. All amendments to this Agreement must be made in writing by mutual agreement of the parties, and no oral amend- ments shall be of any force or effect whatsoever. D. The clause headings appearing in this Agreement have been inserted for the purpose of convenience and ready reference. They do not purport to, and shall not be deemed to, define, limit or extend the scope or intent of the clauses to which they appertain. E. This Agreement supersedes all previous communications, negotiations and /or contracts between the respective parties 12 hereto, either verbal or written, and the same not expressly contained herein are hereby withdrawn and annulled. This is an integrated agreement and there are no representations about any of the subject matter hereof except as expressly set forth herein. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the year and date first above written. COUNTY OF EAGLE, STATE OF COLORADO By: Dan Reynolds Airport Manager By: STATE OF COLORADO ) ) ss County of Eagle ) The foregoing instrument was acknowledged before me this day of , 1994, by My commission expires Notary Public \airport.car 13