HomeMy WebLinkAboutECAT C04-356 Hy Mountain Transportation004-,-560-46
AGREEMENT
FOR OPERATION OF GROUND TRANSPORTATION SERVICES
EAGLE COUNTY AIR TERMINAL CORPORATION
THIS AGREEMENT, made and entered into this - 4k" day of pv, , 2004, by and
between Eagle County Air Terminal Corporation, a not for profit 63-20 Corporation of the
State of Colorado "Corporation", and Hy -Mountain Transportation, Inc., a Colorado
corporation ("Concessionaire").
WITNw'SSETH:
WHEREAS, Corporation is owner, constructor and operator of the Commercial
Passenger Terminal Building and associated support facilities (TERMINAL BUILDING)
located on 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 certain premises within the
TERMINAL BUILDING, and use certain facilities at the TERMINAL BUILDING, and
acquire certain rights and privileges from Corporation in connection with its use of the
TERMINAL BUILDING and CORPORATION is willing to lease and grant same to
CONCESSIONAIRE under terns 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 phrases 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 concession counter with associated office
space as generally depicted on the Terminal Space Plan attached hereto as Exhibit A,
located within the TERMINAL BUILDING D. "Concessionaire's Proposal" shall mean
the Proposal as submitted by CONCESSIONAIRE and accepted by the CORPORATION
and consisting of CONCESSIONAIRE's proposed minimums and its plan of operation.
D. "Concessionaire's Proposal" shall mean the Proposal as submitted by
CONCESSIONAIRE and accepted by the CORPORATION and consisting of
CONCESSIONAIRE's proposed minimums and its plan of operation.
E. ""Eagle County" or "County" shall mean Eagle County, Colorado.
F. "Manager" shall mean the Terminal Manager, designated as such by the Eagle
County Air Terminal Corporation. The word also means the chief assistant of that official
or acting Terminal Manager, if any, of CORPORATION whenever the Terminal Manager
is unable to act in such capacity, or the successor of the Terminal Manager in functions,
if any.
G "Past Due Interest Rate" shall mean interest accruing at 18% per annum
(compounded annually) 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, improve and use the Concession Space
consistent with and 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 ground
transportation (common carrier services by bus, limousine, taxicab or van) concession at
the TERMINAL BUILDING solely for providing ground transportation from or to the
TERMINAL BUILDING. CONCESSIONAIRE understands and agrees that it shall not
engage in any other business on the AIRPORT under this agreement.
B. The right, privilege, and obligation to service and maintain in good and safe
operating order, free from known mechanical defects, van/bus and passenger -type
vehicles used in the ground transportation business of the CONCESSIONAIRE; provide
transportation to commercial airline passengers' final destination via vans, people
movers and buses from the AIRPORT to destinations throughout the Eagle and Vail
Valleys and throughout Colorado and return to the AIRPORT; and occupy operations
office, storage, tumaround, and pickup/drop off parking spaces. CONCESSIONAIRE
shall not engage in rental car operations of any kind to orfrom the TERMINAL
BUILDING.
C. No signs shall be installed by CORPORATION on or about the TERMINAL
BUILDING without the prior written approval of the Manager, said approval should not be
unreasonably withheld. The CORPORATION intends to implement and enforce signage
standards in the TERMINAL BUILDING, including ground transportation counter
backwall standards and pickup/drop off space signage. No temporary signs or displays
shall be permitted on the backwall or the counter surfaces without the prior written
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approval of the Manager.
Section 2.3 Rights Not Exclusive. CORPORATION reserves the right to grant other
concessionaires the right to offer ground transportation in other locations in the
TERMINAL BUILDING, and CONCESSIONAIRE understands and agrees that its right to
offer ground transportation services is not exclusive.
Section 2.4 Means of Access. CONCESSIONAIRE, its agents, invitees, guests,
employees and suppliers have a non-exclusive right of ingress {.o and egress from the
CONCESSION SPACE by a means of access located outside the boundaries of such
space as specified 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".
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'S employees at the
CONCESSION SPACE and, during periods of construction in the TERMINAL BUILDING,
its construction contractors, shall be entitled to the use of parking areas designated for
TERMINAL BUILDING employees. CONCESSIONAIRE'S employees and construction
contractors shall not park elsewhere on the Airport, and any such parking will be treated
as a civil and/or criminal trespass. CORPORATION reserves the right to limit the number
of spaces to be made available to CONCESSIONAIRE, to designate specdc 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
Term
Section 3.1 Term. This Agreement shall become effective on 12:01 a.m. local time on
November 22, 2004 hereinafter called the "Effective Date" and continue for three years,
expiring at 12:01 a.m. on November 22, 2007 subject to prior termination as provided in
Article 8 hereof.
Notwithstanding the foregoing, upon the defeasance of the bonds issued pursuant to the
Corporation's Trust Indenture dated as of June 1, 1996, following maturity or earlier as
provided in the Trust Indenture this Agreement shall terminate, as of the date of
defeasance, and CONCESSIONAIRE shall vacate the premises leased hereunder within
not more than ninety (90) days. CORPORATION will give not less than thirty (30) and
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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 Wien 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 maybe terminated
at any time by CONCESSIONAIRE or CORPORATION upon thirty (30) days written
notice to the other party. Such holding over shall otherwise be upon the same terms and
conditions as set forth in this agreement.
ARTICLE 4
Compensation
Charges, Fees, and Accounting Records
Section 4.1 Space and Facilities Charges: During the term hereof,
CONCESSIONAIRE shall pay the following space and facilities charges:
A. For the use of the counter and associated space in the TERMINAL BUILDING,
the sum of four dollars and forty cents ($4.40) per square foot per month, all payments to
be made in advance and without demand, on the first day of each calendar month of this
Agreement.
B. Waiver of Space and Facilities Charges. In the event that there is no commercial
air service operating from the new TERMINAL BUILDING during an entire calendar
month, the charges for use of the counter and associated space shall be waived.
C. Company shall supply its own janitorial service and maintenance services
(including landscaping maintenance). Should CONCESSIONAIRE fail to clean and
maintain the premises, CORPORATION shall enter the premises and perform such
janitorial service and maintenance and CONCESSIONAIRE shall reimburse
CORPORATION for actual charges incurred plus a reasonable administrative charge.
Said payment shall be made at the office of the CORPORATION, or such other place as
the CORPORATION may designate in writing, within fifteen (15) days of receipt of
CORPORATION's invoice therefor.
Section 4.2 Privilege Fee: Forthe concession privileges granted hereunder, and in
addition to the charges paid for the premises described in Section 1.1 C and Subsection
4.1 hereof, CONCESSIONAIRE shall payto CORPORATION: the Per Trip Fee in
Subsection 4.2(b); and, beginning on Commencement of the Term and for each month
designated thereafter, the Minimum Monthly Privilege Fee in Subsection 4.2(a) or the Per
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Trip Fee in Subsection 4.2(b), whichever sum is greater, as follows:
A. Minimum Privilege Fees. A minimum monthly privilege fee, as follows:
December, 2004
Four Thousand Two Hundred Fifty Dollars
$4,250.00
January 2005
Eight Thousand Dollars
$8,000.00
February 2005
Eight Thousand Dollars
$8,000.00
March 2005
Nine Thousand and One Dollars
$9,001.00
April 2005
Four Thousand Two Hundred Fifty -One Dollars
$4,251.00
December, 2005
Four Thousand Two Hundred Fifty Dollars
$4,250.00
January 2006
Eight Thousand Dollars
$8,000.00
February 2006
Nine Thousand and One Dollars
$9,001.00
March 2006
Ten Thousand and One Dollars
$10,001.00
April 2006
Four Thousand Two Hundred Fifty One Dollars
$4,251.00
December, 2006
Four Thousand Two Hundred Fifty Dollars
$4,250.00
January 2007
Ten Thousand and One Dollars
$10,001.00
February 2007
Ten Thousand and One Dollars
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$10,001.00
March 2007
Eleven Thousand and One Dollars
$11,001.00
April 2007
Four Thousand Two Hundred Fifty One Dollars
$4,251.00
B. Per Trip Fee.
Ten (10) days after the beginning of each calendar month during the term hereof,
CONCESSIONAIRE shall pay to CORPORATION a sum of money which represents the
amount by which the Per Trip Fee exceeds the Minimum Privilege Fee for the previous
month. In the event the Per Trip Fee shall not exceed the Minimum Privilege Fee during
any month in the term hereof, then no Per Trip Fee shall be due and payable for such
month.
C. During the months of May, June, July, August, September, October, and
November (to the extent applicable to the Term hereof) there shall be no Minimum
Privilege Fee. During said period of time, CONCESSIONAIRE shall continue to payto
CORPORATION the Per Trip Fee as hereinbefore defined.
D. CONCESSIONAIRE understands that Eagle County charges ground
transportation companies on a permit fee basis to operate at the AIRPORT, and those
permit fees are separate and in addition to any fees payable under this Agreement.
Section 4.3 Per Trip Fees. As used herein, the term "Per Trip Fee" shall mean the
total amount actually charged by Eagle County for use of the airport on a per trip basis in
connection with the providing of ground transportation services at the TERMINAL
BUILDING, regardless of where the passenger is picked up or dropped off. The Per Trip
Fee level will be determined annually by Eagle County and will be changed to all Ground
Transportation operators regardless of weather or not they have a lease with Eagle
County Air Terminal Corporation.
Section 4.4 Interest on Past Due Amounts. Any payments not made to
CORPORATION when due shall accrue interest at the Past Due Interest Rate, as herein
defined.
Section 4.5 Place and Manner of Payments. All sums payable to CORPORATION
hereunder shall be made without notice at the following:
Eagle County Air Terminal Corporation
CIO Eagle County Regional Airport Manager
P.O. Box 850
Eagle, Colorado 81631
or at such other place as the Manager or his authorized representative may hereafter
designate by notice in writing to CONCESSIONAIRE. All sums shall be made in legal
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tender of the United States. Any check given to the CORPORATION shall be received
by it subject to collection, and CONCESSIONAIRE agrees to pay any charges, fees or
costs incurred by the CORPORATION for such collection, including reasonable
attorney's fees.
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 shall operate the concession in a first-class manner
satisfactory to the MANAGER of his authorized representative. Service shall be prompt,
clean, courteous and efficient.
B. CONCESSIONAIRE shall be open for business at least one and one half hour
before and one hour after the first and last daily flight each day. The CORPORATION
will consult with CONCESSIONAIRE concerning hours of operation and changes to the
hours of operation.
C. CONCESSIONAIRE shall acquire Colorado Public Utilities Commission licensure
as well as all other operating permits and licenses necessary to be in compliance with all
applicable rules and regulations.
D. CONCESSIONAIRE shall maintain a fleet of at least ten (10) vehicles all in good
and safe operating order, free from known mechanical defects, and in a clean, neat, and
attractive condition inside and out.
E. CONCESSIONAIRE shall offer reasonable rates and provide to CORPORATION,
upon request, a written listing of said rates charged to customers.
F. CONCESSIONAIRE shall pay all traffic violation notices issued to its vehicles
under the control or operation of its employees at the AIRPORT.
G. - CONCESSIONAIRE shall provide dependable ground transportation service to
meet the needs of the traveling public (set hours of operation during ski season).
H. CONCESSIONAIRE shall provide the following services for its customers at the
TERMINAL BUILDING: 1) accept major credit cards; 2) provide reservation system for
services; 3) provide prompt service.
I. CONCESSIONAIRE shall maintain proper County permits for authority to use the
AIRPORT and advise the CORPORATION of any change in said authority.
J. CONCESSIONAIRE and its agents and employees shall not engage in open,
notorious, and public disputes, disagreements, or conflicts with visitors, customers or
other concessionaires.
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K. The management, maintenance and operation of privileges under this Agreement
shall at all times during the term hereof be under the supervision and direction of an
active, qualified, competent, and e)(pedenced manager representing
CONCESSIONAIRE, who shall be subject at all times to the direction and control of
CONCESSIONAIRE. CONCESSIONAIRE will cause such manager to be assigned a
duty station or office on the premises at which he or she shall be available during normal
business hours; and CONCESSIONAIRE will, at all times during the absence of such
manager, assign or cause to be assigned a qualified subordinate to be in charge of the
premises, services, and facilities and to be available on the premises and to act for the
Manager in his or her absence.
L. CONCESSIONAIRE shall, in the operation of the services under this Agreement,
employ or permit the employment of only such personnel as will assure a high standard
of service to the public. All such personnel, while on duty, shall be clean, neat in
appearance, and courteous at all times and shall be appropriately attired, with uniforms
in such instances as are appropriate. No personnel employed by CONCESSIONAIRE
while on or about the premises shall use improper language, act in a loud, boisterous or
otherwise improper manner, or be permitted to solicit business in an inappropriate
manner. There shall be no solicitation or greeting of customers, prospective customers
or airport visitors by employees (or others associated with CONCESSIONAIRE as
employee, contract driver, agent, principal, director, officer, manager, or otherwise)
located outside the CONCESSION SPACE.
M. CONCESSIONAIRE shall maintain a close check over attendants and employees
to ensure the maintenance of a high standard of service to the public, the performance of
such obligation to be determined at the sole discretion of CORPORATION.
CONCESSIONAIRE shall take all proper steps to discipline employees who participate in
acts of misconduct while on duty.
N. CONCESSIONAIRE shall drop off passengers, park vehicles, and load its
passengers only in those places designated for such purposes, respectively, by
CORPORATION.
Section 5.2 Vending Machines. No amusement orvending machines or other
machines operated by coins, tokens or credit cards shall be installed or maintained in or
upon the Concession Space except with the written permission of the Manager or his
authorized representative. This prohibition includes, but not byway of limitation, sales
from vending machines of such items as cigarettes, candy, maps, coffee, soft drinks,
newspapers, stamps and insurance policies; telephones; dispensation of cash, money
orders and checks; and operation of mechanical or electronic game devices, electronic
video games, and entertainment devices.
Section 5.3 Compliance with all laws and Regulations. CONCESSIONAIRE agrees
not to use or permit the Concession Space to be used for any purpose prohibited by the
laws of the United States or the State of Colorado or the resolutions or ordinances of
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 accordance with all applicable federal, state and local laws, ordinances,
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resolutions and all rules and regulations adopted by the County or the CORPORATION
for the management, operation and control of the Airport, either promulgated by the
CORPORATION or Eagle County on its own initiative or in compliance with regulations or
actions of the Federal Aviation Administration or other authorized federal agency
including the Transportation Security Administration. CONCESSIONAIRE further agrees
to submit any report or reports or information which the CORPORATION is required by
law or regulation to obtain from CONCESSIONAIRE orwhich Manager may request
relating to CONCESSIONAIRE's operations.
Section 5.4 Compliance with Environmental Requirements. CONCESSIONAIRE,
in conducting any activity on the Concession Space, shall complywith all applicable
local, state or federal environmental rules, regulations, statutes, laws or orders
{collectively "Environmental Regulations', including but not limited to Environmental
Requirements regarding the storage, use and disposal of Hazardous Materials or Special
Wastes to the Environment. CONCESSIONAIRE shall acquire all necessary federal,
state, and local -environmental permits and comply with all applicable federal and state
environmental permit requirements.
Section 5.5 Hazardous Use. CONCESSIONAIRE agrees that nothing shall be done
or kept in the Concession Space and no improvements, changes, alterations, additions,
maintenance or repairs shall be made to the Concession Space which might be unsafe
or hazardous to any person or property. Further, CONCESSIONAIRE shall not do or
permit to be done any act or thing upon the Concession Space which will invalidate,
suspend or increase the rate of any fire insurance policy required under this Agreement,
or carried by CORPORATION, covering the Concession Space or the buildings in which
the Concession Space is located or which, in the opinion of the Manager or his
authorized representative, may constitute a hazardous condition that will increase the
risks nominally attendant upon the operations contemplated under this Agreement. If, by
reason of any failure by CONCESSIONAIRE to complywith the provisions of this section,
after receipt of notice in writing from CORPORATION, any fire insurance rate on the
Concession Space or on the buildings in which the same is located, shall at anytime be
higher than it normally would be, then CONCESSIONAIRE shall paythe
CORPORATION, on demand, that part of all fire insurance premiums paid by the
CORPORATION which have been charged because of such violation or failure of
CONCESSIONAIRE; provided, that nothing herein shall preclude CONCESSIONAIRE
from bringing, keeping or using on or about the Concession Space such materials,
supplies, equipment and machinery as are appropriate or customary in carrying on its
business, or from carrying on the normal operations contemplated herein.
Section 5.6 Structural, Electrical or System Overloading. CONCESSIONAIRE
agrees that nothing shall be done or kept on the Concession Space and no
improvements, changes, alterations, additions, maintenance or repairs shall be made to
the Concession Space which might impair the structural soundness of the building, result
in an overload of utility, plumbing, or HVAC systems serving the TERMINAL BUILDING
or interfere with electric, electronic or other equipment at the Airport. In the event of
violations hereof, CONCESSIONAIRE agrees to immediately remedy the violation at
CONCESSIONAIRE's expense.
Section 5.7 Noise, Odors, Vibrations and Annoyances. CONCESSIONAIRE shall
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conduct its operations in an orderly and proper manner so as not to commit any nuisance
in the Concession Space or annoy, disturb or be offensive- to others in the TERMINAL
BUILDING and shall take all reasonable measures, using the latest known and .
practicable devices and means, to eliminate any unusual, nauseous or objectionable
noise, gases, vapors, odors and vibrations and to maintain the lowest possible sound
level in its operations.
Section 5.8 Accessibility CONCESSIONAIRE shall not do orpermit to be done
anything which might interfere with the effectiveness or accessibility of utility, heating,
ventilating or air conditioning systems or portions thereof on the Concession Space or
elsewhere on the Airport, nor do or permit to be done anything which may interfere with
free access and passage in the Concession Space orthe public areas adjacent thereto,
or hinder police, firefighting or other emergency personnel in the discharge of their
duties. CONCESSIONAIRE shall not place anyadditional lock of any kind upon any
window or interior or exterior door in the Concession Space, or make any change in any
existing door or window lock or the mechanism thereof, unless a key therefor is
maintained on the Concession Space, nor refuse, upon the expiration or sooner
termination of this Agreement, to surrender to CORPORATION any and all keys to the
interior or exterior doors on the Concession Space, whether said keys were fumished to
or otherwise procured by CONCESSIONAIRE. If any keys fumished to
CONCESSIONAIRE by CORPORATION are lost, Concessionaire shall pay
CORPORATION, on demand, the cost for replacement thereof.
Section 5.9 No Auction. CONCESSIONAIRE agrees not to allow or permit any sale
by auction or hawking on the Concession Space.
Section 5.10 Restrictions on Changes and Alterations. Subject to the requirements
of the section herein entitled "Renovation of Concession Space", CONCESSIONAIRE
agrees not to improve, change, alter, add to, remove or demolish the Concession
Improvements, as defined herein, or any improvements, on the Concession Space
without the prior written consent of the Manager or his authorized representative.
CONCESSIONAIRE must complywith all conditions which may be imposed by the
Manager, in his sole discretion. Full and complete specifications for all work and
improvements, along with a statement of the time required to complete such work shall
be submitted to and approved in writing by the Manager or his authorized representative
before construction work commences. Copies of plans for all changes or alterations shall
be given to the Manager for review and written approval prior to commencement of
construction.
First-class standards of design and construction will be required in connection with all
such work, facilities and improvements, and all improvements shall conform with
applicable statutes, ordinances, building codes, regulations and other general
requirements of CORPORATION, procurement of general liability and builders risk
insurance and performance and payment bonds, and compliance with worker's
compensation, prevailing wage, MBE/WBE participation requirements, and compliance
with the Americans with Disabilities Act, 42 U.S.C. 12,000 et seq. and its regulations.
The approval given by CORPORATION shall not constitute a representation or warranty
as to such conformity; responsibility therefor shall at all times remain with
CONCESSIONAIRE.
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Approval by CORPORATION shall extend to and include consideration of architectural
and aesthetic matters, and CORPORATION expressly reserves the right to reject any
designs submitted and to require CONCESSIONAIRE to resubmit designs and layout
proposals until they meet with CORPORATION's approval. CORPORATION agrees to
act promptly upon a request for approval of such plans and/or revisions thereto.
Section 5.11 Title to Improvements. CONCESSIONAIRE agrees that all
improvements to the Concession Space, including approved changes and renovations,
which are affixed to the realty, shall become the property of the CORPORATION upon
their completion and acceptance by CORPORATION.
SECTION 5.12 Removal of CONCESSIONAIRE'S Equipment. CONCESSIONAIRE
shall retain title to and shall remove, at its sole cost, prior to the expiration or termination
of this Agreement, all of CONCESSIONAIRE's Equipment, as hereinafter defined.
"Concessionaire's Equipment" shall mean all equipment, apparatus, machinery, signs,
furnishings, trade fixtures and personal property installed by CONCESSIONAIRE and
used in the operation of the business of Concessionaire (as distinguished from the use
and operation of the Concession Space) which is listed on an annual inventory list
submitted by CONCESSIONAIRE and approved by the CORPORATION. If such
removal shall injure or damage the Concession Space, CONCESSIONAIRE agrees, at
its sole cost, at or prior to the expiration or termination of this Agreement, to repair such
injury or damage in good and workmanlike fashion and to place the Concession Space in
the same condition as the Concession Space would have been if such Concessionaire's
Equipment had not been installed. If CONCESSIONAIRE fails to remove any of
Concessionaire's Equipment by the expiration or termination of this Agreement,
CORPORATION may, at its option, keep and retain any such Concessionaire's
Equipment or dispose of the same and retain any proceeds therefrom, and
CORPORATION shall be entitled to recover from CONCESSIONAIRE any costs of
CORPORATION in removing the same and in restoring the Concession Space in excess
of the actual proceeds, if any, received by CORPORATION from disposition thereof.
ARTICLE 6
UTILITIES AND SERVICES
Section 6.1 Corporation Improvements and Services. CORPORATION shall
provide and maintain, water, sewer, general lighting, electrical power, and heating and
air-conditioning for the TERMINAL BUILDING and make them a%eilable to the
Concession Space. If CONCESSIONAIRE requires additional water, lighting, electrical
power, telephone outlets, or adjustments to the air conditioning system, such additional
improvements or services shall be subject to the prior written approval of
CORPORATION, and any such improvements shall be made at CONCESSIONAIREls
expense.
Section 6.2 Common Use Services. The Manager may establish common use
services at the Airport, including but not limited to trash and refuse removal, deliveries,
industrial waste handling, recycling, and security guards. The Manager reserves the right
to establish charges for common use services based upon documented actual costs.
Trash, sewer, and deliveries will be common use services which CONCESSIONAIRE
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may be required to use and pay its prorata actual share; however, other common use
services may be utilized at CONCESSIONAIRE's option. CONCESSIONAIRE agrees to
pay the charges for those common use services which are utilized by
CONCESSIONAIRE.
Section 6.3 Interruption of Services. CONCESSIONAIRE agrees that
CORPORATION shall not be liable for failure to supply any utility services.
CORPORATION reserves the right to temporarily discontinue utility services at such time
as may be necessary by reason of accident, unavailability of employees, repairs,
alterations or improvements or whenever by reason of strikes, lockouts, riots, acts of God
or any other happenings beyond the control of the CORPORATION, CORPORATION is
unable to furnish such utility services. CORPORATION shall not be liable for damages
to persons or property for any such discontinuance, nor shall such discontinuance in any
way be construed as cause for abatement of compensation or operate to release the
CONCESSIONAIRE from any of its obligations hereunder, except as 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, suits, costs, a)pense, 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 harmlessCORPORATION, its
officers, agents and employees from damages resulting from the sole negligence of
CORPORATION's officers, agents and employees. The minimum insurance
requirements prescribed herein shall not be deemed to limit ordefine 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 Five Hundred
Thousand Dollars ($1,500,000.00) bodily injury and property damage combined single
limit each occurrence. The required insurance coverage also shall include Personal
Injury, Blanket Contractual Coverage for this Agreement, and Independent Contractors
Coverage. CONCESSIONAIRE shall also maintain in force, during the term of this
Agreement, Automobile Liability Insurance, Comprehensive Form, which shall insure all
CONCESSIONAIRE's owned or hired limousines and/or other vehicles used by
CONCESSIONAIRE at AIRPORT pursuant to this Agreement, in the minimum amount of
One Million Five Hundred Thousand Dollars ($1,500,000.00) Bodily Injury and Property
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Damage Combined Single Limit peroccurrence. CONCESSIONAIRE shall also maintain
in force during the term of this Agreement Workers Compensation and Employers
Liability Insurance in accordance with the provisions of Colorado law. The limit of such
insurance coverage shall be for statutory Worker's Compensation benefits, and shall not
be less than One Hundred Thousand Dollars ($100,000.00) for employer's liability
insurance. CONCESSIONAIRE agrees that CORPORATION and County shall be
named as an additional insureds under such policy or policies of insurance and said
policy or policies shall include the severability of interest provision.
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 be canceled or reduced
without at least thirty (30) days prior written notice to CORPORATION. At least ten (10)
days prior to the expiration of said insurance policy or policies, a certificate showing that
such insurance coverage has been renewed or extended shall be filed with
CORPORATION. If such coverage is.canceled or reduced, CONCESSIONAIRE shall
within seven (7) days of notice of cancellation or reduction, but in any event more than
fifteen (15) days before the effective date of said cancellation or reduction, file with
CORPORATION a certificate showing that the required insurance has been reinstated in
full, or provided through another insurance company or companies.
In the event that CONCESSIONAIRE shall at anytime fail to provide CORPORATION
with the insurance required under this section, CORPORATION may immediately
terminate this Agreement.
The insurance carried by the CONCESSIONAIRE, as required by this Agreement, shall
be primary over any insurance carded by the CORPORATION or COUNTY for their own
protection. A copy of the insurance representative's license, or other legal proof of
his/her authorization to sign the Certificate of Insurance for and on behalf of the
insurance company/companies shown thereon, must be attached to the Certificate of
Insurance. Facsimile stamped signature on the Certificate will not be accepted. The
Certificate must be signed by the insurance company's authorized representative.
The CORPORATION will conditionally accept self-insurance under this section, subject
to review and approval of appropriate County and State requirements. All preceding
coverages and limits will apply.
The parties understand and agree that should the amount of insurance required herein
become inadequate during the term of this Agreement, CONCESSIONAIRE agrees that
it will increase the amount of insurance to meet new minimum limits reasonable
established by CORPORATION.
Section 7.3 Performance Bond. Upon execution of this Agreement,
CONCESSIONAIRE shall deliver to the Manager, and maintain in effect at all times
throughout the Term, a valid corporate performance bond, or such other acceptable
surety as first approved in writing by CORPORATION, in an amount equal to the sum of
five months Monthly Guarantees, which amount is subject to increase by the Manager.
Such bond shall be payable without condition to the CORPORATION and guarantee to
the CORPORATION full and faithful performance of all of the terms and provisions of this
13
Agreement by CONCESSIONAIRE, as said Agreement may be amended, supplemented
or extended.
All bonds shall be in forms satisfactory to CORPORATION, and be executed by such
sureties as are satisfactory to CORPORATION and (a) are licensed to conduct business
in the State of Colorado, and (b) are named in the current list of "Companies Holding
Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable
Reinsuring Companies" as published in Circular 570 (amended) by the Audit Staff
Bureau of Accounts, U.S. Treasury Department. All bonds signed by an agent must be
accompanied by a certified copy of the authority to act.
If the surety on any bond furnished by CONCESSIONAIRE is declared bankrupt, or
becomes insolvent, or its right to do business in Colorado is terminated, or it ceases to
meet the requirements of clauses (a) and (b) of the preceding paragraph,
CONCESSIONAIRE shall within five days thereafter substitute another bond and surety,
both of which shall be acceptable to CORPORATION.
Section 7.4 No Personal Liability. No director, officer or employee of either party
hereto shall be held personally liable under this Agreement or because of its execution or
attempted execution.
Section 7.5 Taxes, Licenses, Liens and Fees. CONCESSIONAIRE agrees to
promptly pay all taxes, excises, license fees and permit fees of whatever nature
applicable to its operations hereunder and to take out and keep current all municipal,
state or federal licenses required for the conduct of its business at and upon the
Concession Space and further agrees not to permit any of said taxes, excises, license
fees or permit fees to become delinquent. CONCESSIONAIRE also agiees not to permit
any mechanic's or matedalman's or any other lien to become attached or be foreclosed
upon the Concession Space or improvements thereto, or any part or parcel thereof, by
reason of any work or labor performed or materials furnished by any mechanic or
materialman. CONCESSIONAIRE agrees to furnish to the Manager, upon request,
duplicate receipts or other satisfactory evidence showing the prompt payment by it of
Social Security, unemployment insurance and worker's compensation insurance, and all
required licenses and all taxes. CONCESSIONAIRE further agrees to promptly pay
when due all bills, debts and obligations incurred by it in connection with its operations
hereunder and not to permit the same to become delinquent and to sufer no lien,
mortgage, judgment or execution to be filed against the Concession Space or
improvements thereon which will in anyway impair the rights of the CORPORATION
under this Agreement.
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
14
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
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 orattachment 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 Manager of a written notice of such breach or default, except where a shorter
period is specified herein, or where fulfillment of its obligation requires activity over a
period of time and CONCESSIONAIRE within 10 days of notice commences in good faith
to perform whatever may be required to correct its failure to perform and continues such
performance without interruption except for causes beyond its control; or
I. Gives its permission to any person to use for any illegal purpose any portion of
the TERMINAL BUILDING made available to CONCESSIONAIRE for its use under this
Agreement.
Section 8.2 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 togetherwith Past
Due Interest; or
B. CORPORATION may cancel and terminate this Agreement and repossess the
15
Concession Space, with or without process of law, and without liability for so doing, upon
giving 30 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 30 days. Notwithstanding 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, unless otherwise agreed by CORPORATION, and CORPORATION,
in its sole discretion, may elect therein (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 a)pense 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 Due Interest Rate togetherwith
any other amount to fully compensate CORPORATION for all loss of compensation,
damages, and costs, including attorneys 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.
Following reentry, the CORPORATION may relet the Concession Space, or any portion
thereof, for the account of Concessionaire, on such terms and conditions as
CORPORATION may choose, and may make such repairs or improvements as it deems
appropriate to accomplish the reletting. CORPORATION shall not be responsible for any
failure to relet or any failure to collect compensation due for such reletting.
CONCESSIONAIRE shall be liable to CORPORATION for all costs of reletting, including
attomey's fees and repairs or improvements. Notwithstanding re-entry by
CORPORATION, CONCESSIONAIRE shall continue to be liable for all amounts due as
compensation under this Agreement, on the dates specified and in such amounts as
would be payable if default had not occurred. Upon expiration of the Term, or any earlier
termination of the Agreement by CORPORATION, CORPORATION, having credited to
the account of CONCESSIONAIRE any amounts recovered through reletting, shall
refund, without interest, any amount which exceeds the compensation, damages, and
costs payable by CONCESSIONAIRE under this Agreement.
Section 8.3 Remedies Cumulative. The remedies provided in this Agreement shall
be cumulative and shall in no way affect any other remedy available to CORPORATION
under law or equity.
Section 8.4 Waivers. No failure of CORPORATION to insist upon the strict
performance of a term, covenant or agreement contained in this Agreement, no failure by
CORPORATION to exercise any right or remedy under this Agreement, and no
acceptance of full or partial payment during the continuance of any default by
CONCESSIONAIRE shall constitute a waiver of any such term, covenant or agreement
or a waiver of any such right or remedy or a waiver of any default by
CONCESSIONAIRE.
Article 9
DAMAG :-. 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 paythe 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 maythen, at its option, cancel and terminate this
Agreement.
Section 9.2 Cooperation in Event of Loss. If CORPORATION elects to rebuild,
CONCESSIONAIRE must replace all Concession Improvements at its sole cost.
CORPORATION and CONCESSIONAIRE shall cooperate with each other in the
collection of any insurance proceeds which may be payable in the event of any loss or
damage.
Section 9.3 Loss or Damage to Property. CORPORATION shall not be liable for
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 Waiver/Insurance Coverage. CORPORATION and
CONCESSIONAIRE each waive any and every claim for recovery from the other for any
and all loss of or damage to the Concession Space or to the contents thereof, which loss
or damage is covered by valid and collectible fire and extended insurance policies, to the
extent that such loss or damage is recoverable under such insurance policies. Since this
mutual waiver will preclude the assignment of any such claim by subrogation or
otherwise to an insurance company or any other person, CONCESSIONAIRE agrees to
give to each insurance company which has issued, or may issue, to the Concessionaire
policies of fire and extended coverage insurance, written notice of the terms of this
mutual waiver, and to have such insurance policies properly endorsed, if necessary, to
prevent the invalidation of the insurance coverage by reason of this waiver.
17
1*00
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 be construed in accordance with the laws of the State of
Colorado.
Section 10.3 Agreement Subordinate to Agreements with "United States." This
Agreement is subject and subordinate to the terms, reservations, restrictions and
conditions of any existing or future agreements between CORPORATION or Eagle
County and the United States, the wecution of which has been or may be required as a
condition precedent to the transfer of federal rights or property to Eagle County for
Airport purposes and the expenditure of federal funds for the development of the Airport
or airport system. The provisions of the attached Appendices 1, 2 and 3 are
incorporated herein by reference.
Section 10.4 Agreement Subordinate to Ground Lease with Eagle County. This
agreement is subject to the written approval of Eagle County and is subject and
subordinate to the terms, reservation, restrictions and conditions of the Ground Lease
and any existing or future agreements between CORPORATION and Eagle County.
Section 10.5 Assignment. CONCESSIONAIRE shall not assign this Agreement or in
any way 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 anytime, and
to the extent, that CORPORATION has space available to lease to rental car companies.
As used herein, "assignment" means and includes, but is not limited to, Q) 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, (i) grants or transfers to a single person or entity, including to any
other person(s) and entity(ies) directly or indirectly controlled by it or which directly or
indirectly control it, of any right, title, possession, lien, encumbrance security interest or
other interest in, on or to the stock or other ownership interest which aggregate five
percent (5%) or more of the stock or other ownership interest of CONCESSIONAIRE, (iii)
if CONCESSIONAIRE is a limited liability company, a change in the chief operating
officer, manager or other person responsible for the day-to-day performance by
CONCESSIONAIRE of the Agreement, (iv) the grant or transfer of any right, title, lien,
encumbrance, security interest or other interest in, on or to some or all of the income or
profits (however they may be measured or defined, e.g., gross income, gross profit,
operating profit, net profit) of CONCESSIONAIRE, and (v) the grant or transfer of any
right, title, lien, encumbrance, security interest or other interest in, on or to some or all of
the cash flow (however it may be measured or defined) of CONCESSIONAIRE. 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
18
Agreement shall thereupon automatically terminate. CORPORATION's consent to one
assignment shall not be deemed to be a consent to anysubsequent assignment.
Section 10.6 Bond Indentures. This Agreement is in all respects subject and
subordinate to any and all CORPORATION bond indentures applicable to the
TERMINAL BUILDING and Airport and to any other bond indentures which should
amend, supplement or replace such bond indentures. The parties to this Agreement
acknowledge and agree that all property subject to this Agreement which was financed
by,the net proceeds of tax-exempt bonds is owned by CORPORATION or Eagle County,
and CONCESSIONAIRE agrees not to take any action that would impair, or omit to take
any action required to confirm, the treatment of such property as owned by
CORPORATION or Eagle County for purposes of Section 142(b) of the Internal Revenue
Code of 1986, as amended. In particular, the CONCESSIONAIRE agrees to make, and
hereby makes, an irrevocable election (binding on itself and all successors in interest
under this Agreement) not to claim depreciation or an investment credit with respect to
any property subject to this Agreement which was financed by the net proceeds of tax-
exempt bonds and shall execute such forms and take such other action as
CORPORATION or Eagle County may request in order to implement such election.
Section 10.7 Force Majeure. Neither party hereto shall be liable to the otherfor any
failure, delay or interruption in the performance of any of the terms, covenants or
conditions of this Agreement due to causes beyond the control of that party, including
without limitation strikes, boycotts, labor disputes, embargoes, shortages of materials,
acts of God, acts of the public enemy, acts of superior governmental authority, weather
conditions, floods, riots, rebellion, sabotage or any other circumstance for which such
party is not responsible or which is not in its power to control, but in no event shall this
paragraph be construed so as to allow CONCESSIONAIRE to reduce or abate its
obligation to pay the Monthly Guarantee or Percentage Fee herein.
Section 10.8 Inconvenience During Construction. CONCESSIONAIRE recognizes
that from time to time during the Term of this Agreement, it may be necessary for
CORPORATION to commence or complete 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 County, its officers, agents, employees,
contractors, subcontractors and representatives by way of such inconveniences, and
CONCESSIONAIRE waives any right to claim damages or other consideration therefrom.
Section 10.9 Nondiscrimination. In connection with the performance 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 otherwise qualified, solely because of race, color,
religion, national origin, gender, age, military status, sexual orientation, marital status, or
physical or mental disability, and CONCESSIONAIRE further agrees to insert the
foregoing provision in all subcontracts hereunder. CONCESSIONAIRE further agrees to
the provisions set forth in Appendix 4, and to insert the provisions thereof into all
subcontracts hereunder. CONCESSIONAIRE further agrees to the provisions regarding
W
\,%MW
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 haze 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: President
Eagle County Air Terminal Corporation
P.O. Box 850
Eagle, Colorado 81631
Phone: (970) 524-8246
Fax: (970) 524-8247
Copy to: Eagle County Attomey's Office
P.O. Box 850
Eagle, Colorado 81631
Phone: (970) 524-8246
Fax: (970) 524-8246
CONCESSIONAIRE: HyMountain Transportation, Inc.
111 C Aspen Aprort Business Center
Aspen, CO 81611
Phone: (970) 925-4475
Fax: (970) 925-9409
Either party hereto may designate in writing from time to time the address of substitute or
supplementary persons within the State of Colorado to receive such notices. The
effective date of service of any such notice shall be three 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
20
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 existing and future security regulations
or Security Plan adopted by CORPORATION or Eagle County pursuant to requirements
of the Transportation Security Administration or Part 107, Federal Air Regulations of the
Federal Aviation Administration, as it may be amended from time to time.
Section 10.15 Severability. If any provision in this Agreement is held by a court to be
invalid, the validity of other provisions herein which are severable shall be unaffected.
Section 10.16 Third Parties. This Agreement does not, and shall not be deemed or
construed to, confer upon or grant to any third party or parties except parties to whom the
CONCESSIONAIRE may assign this Agreement in accordance with the terms hereof,
and except any successor to CORPORATION any right to claim damages or to bring any
suit, action or other proceeding against either CORPORATION or the
CONCESSIONAIRE because of any breach hereof or because of any of the terms,
covenants, agreements and conditions herein.
Section 10.17 Entire Agreement. The parties acknowledge and agree that the
provisions herein constitute the entire agreement and that all representations made by
any officer, agent or employee of the respective parties unless included herein are null
and void and of no effect. No alterations, amendments, changes or modifications, unless
expressly reserved to the Manager herein, shall be valid unless executed by an
instrument in writing by all the parties with the same formality as this Agreement.
Section 10.18 Concessionaire's Warranty of Its Ability To Enter Agreement.
CONCESSIONAIRE represents and warrants, which representation and warranty form a
material part of the consideration of this Agreement without which CORPORATION
would not enter into this Agreement, that it is authorized to and lawfully able to enter into
and perform, and is under no prohibition against entering into and performing, this
Agreement and that entering into this Agreement and performing pursuant to the terms
thereof shall not constitute or cause a default or breach of any other contract, covenant
or duty.
Section 10.19 Favored Nations. CORPORATION agrees it will not charge a more
favorable rental, fee or charge to any other ground transportation concession executing a
similar agreement with CORPORATION for comparable space, facilities or rights at the
Terminal Building than that being paid by CONCESSIONAIRE hereunder, unless the
CORPORATION also makes those more favorable terms available to
CONCESSIONAIRE. The provisions of this section 10.19 do not applyto the Minimum
Privilege Fee amounts identified in Article 4 hereof.
21
...
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
COR
Eagl it T final Corporation
By:
Arn enconi, Pre ' ent
ATTEST:
Secretary of Eagle Coun Air Terminal
22
CONCESSIONAIRE:
Hy -Mountain Transportation, Inc.,
a Colo ration._
Todd Gamier, President
lqmp�
APPENDIX NO.1
STANDARD FEDERAL ASSURANCES
NOTE: As used below the term "contractor' shall mean and include the
"CONCESSIONAIRE," and the tern "sponsor" shall mean the "CORPORATION."
During the term of this contract, the contractor, for itself, its assignees and successors in
interest (hereinafter referred to as the "contractor') agrees as follows:
1. Compliance with Regulations. The contractor shall comply with the Regulations
relative to nondiscrimination in federally assisted programs of the Department of
Transportation (hereinafter "DOT') Title 49, Code of Federal Regulations, Part 21, as
they may be amended from time to time (hereinafter referred to as the Regulations),
which are herein incorporated by reference and made a part of this contract.
2. Nondiscrimination. The contractor, with regard to the work performed by it during the
contract, shall not discriminate on the grounds of race, color, sex, creed or national origin
in the selection and retention of subcontractors, including procurement of materials and
leases of equipment. The contractor shall not participate either directly or indirectly in the
discrimination prohibited by section 21.5 of the, Regulations, including employment
practices when the contract covers a program set forth in Appendix B of the Regulations.
3.Solicitations for Subcontractors, Including Procurement of Materials and Eguigment. In
all solicitations either by competitive bidding or negotiation made by the contractor for
work to be performed under a subcontract, including procurement of materials or leases
of equipment, each potential subcontractor or supplier shall be notified by -the contractor
of the contractor's obligations under this contract and the Regulations relative to
nondiscrimination on the grounds of race, color, or national origin.
4.Information and Reports. The contractor shall provide all information and reports
required by the Regulations or directives issued pursuant thereto and shall permit access
to its books, records, accounts other sources of information, and its facilities as may be
determined by the sponsor or the Federal Aviation Administration (FAA) to be pertinent to
ascertain compliance with such Regulations, orders, and instructions. Where any
information required of a contractor is in the exclusive possession of another who fails or
refuses to fumish this information, the contractor shall so certify to the sponsor of the
FAA, as appropriate, and shall set forth what efforts it has made to obtain the
information.
5. Sanctions for Noncompliance. In the event of the contractor's noncompliance with the
nondiscrimination provisions of this contract, the sponsor shall impose such contract
sanctions as it or the FAA may determine to be appropriate, including, but not limited to:
a. Withholding of payments to the contractor under the contract until the
contractor complies, and/or
b. Cancellation, termination, or suspension of the contract, in whole or in part.
23
1"IMF,
6. Incorporation of Provisions. The contractor shall include the provisions of paragraphs
1 through 5 in every subcontract, including procurement of materials and leases of
equipment, unless exempt by the Regulations or directives issued pursuant thereto. The
contractor shall take such action with respect to any subcontract or procurement as the
sponsor or the FAA may direct as a means of enforcing such provisions including
sanctions for noncompliance. Provided, however, that in the event a contractor becomes
involved in, or is threatened with, litigation with a subcontractor or supplier as a result of
such direction, the contractor may request the sponsor to enter into such litigation to
protect the interests of the sponsor and, in addition, the contractor may request the
United States to enter into such litigation to protect the interests of the United States.
24
APPENDIX NO.2
STANDARD FEDERAL ASSURANCES
NOTE:
As used below, the term "DOT" means the United States Department of Transportation.
1. CONCESSIONAIRE for itself, representatives, successors in interest, and
assigns, as a part of the consideration hereof, does hereby covenant and agree as a
covenant running with the land that in the e%ent facilities are constructed, maintained, or
otherwise operated on the said property described in this agreement for a purpose for
which a DOT program or activity is extended or for another purpose involving the
provision of similar services or benefits, the CONCESSIONAIRE shall maintain and
operate such facilities and services in compliance with all other requirements imposed
pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the
Department of Transportation, and as said Regulations maybe amended.
2. The CONCESSIONAIRE for itself, representatives, successors in interest, and
assigns, as a part of the consideration hereof, does hereby covenant and agree as a
covenant running with the land: (1) that no person on the grounds of race, color, sex,
creed or national origin shall be excluded from participation in, denied the benefits of, or
be otherwise subjected to discrimination in the use of said facilities, (2) that in the
construction of any improvements on, over, or under such land and the furnishing of
services thereon, no person on the grounds of race, color, sex, creed or national origin
shall be excluded from participation in, denied the benefits of, or otherwise be subjected
to discrimination, (3) that the CONCESSIONAIRE shall use the premises in compliance
with all other requirements imposed by or pursuant to 49 CFR Part 21, Nondiscrimination
in Federally Assisted Programs of the Department of Transportation, and as said
Regulations may be amended.
25
APPENDIX NO.3
NONDISCRIMINATION IN AIRPORT EMPLOYMENT OPPORTUNITIES
CONCESSIONAIRE assures that it will comply with pertinent statutes, Executive Orders
and such rules as are promulgated to assure that no person shall, on the grounds of
race, creed, color, national origin, sex, age, or handicap be excluded from participating in
any activity conducted with or benefiting from Federal assistance. This Provision
obligates the CONCESSIONAIRE or its transferee for the period during which Federal
assistance is extended to the airport program, except where Federal assistance is to
provide or is in the form of personal property or real property or an interest therein or
structures or improvements thereon. In these cases, this Provision obligates the
CONCESSIONAIRE or any transferee for the longer of the following periods: (a) the
period during which the property is used by the sponsor or any transferee for a purpose
for which Federal assistance is extended, or for another purpose involving the provision
of similar services or benefits; or (b) the period during which the airport sponsor or any
transferee retains ownership or possession of the property. In the case of contractors,
this Provision binds the contractors from the bid solicitation period through the
completion of the contract.
It is unlawful for airport operators and their lessees, tenants, concessionaires and
contractors to discriminate against any person because of race, color, national- origin,
sex, creed, or handicap in public services and employment opportunities.
26
INW-1
1�r
APPENDIX NO.4
LEASE PROVISIONS REQUIRED OR SUGGESTED BY
THE FEDERAL AVIATION ADMINISTRATION
A. Terminal Corporation agrees to operate the Leased Premises for the use and benefit
of the public, more specifically as follows:
1. To furnish good, prompt, and efficient services adequate to meet all the
demands for its services at the Airport,
2. To furnish said services on a fair, equal, and non-discriminatory basis to all
users thereof, and
3. To charge fair, reasonable, and non-discriminatory prices for each unit of sale
or service, provided that Terminal Corporation may be allowed to make reasonable
and non-discriminatory discounts, rebates, or other similar types of price reductions
to volume purchasers.
B. Terminal Corporation, for itself, its personal representatives, successors in interest,
and assigns, as a part of the consideration hereof, does hereby covenant and agree as a
covenant running with the land that:
1. No person on the grounds of race, color, or national origin shall be excluded
from participation in, denied the benefits of, or otherwise be subjected to
discrimination in the use of said facilities.
2. In the construction of any improvements on, over or under such land and the
furnishing of services thereon, no person on the grounds of race, color, or national
origin shall be excluded from participation in, denied the benefits of, or otherwise be
subjected to discrimination.
3. Terminal Corporation shall use the premises in compliance with all other
requirements imposed by or pursuant to Title 49, Code of Federal Regulations,
Department of Transportation, Subtitle A, Office of the Secretary, Part 21,
Nondiscrimination in Federally Assisted Programs of the Department of
Transportation -Effectuation of Title VI of the Civil Rights Act of 1964, as said
Regulations may be amended.
In the event of breach of any of the above non-discriminatory covenants, the Corporation
or County shall have the right to terminate the Lease and to re-enter and repossess the
Leased Premises and the facilities thereon, and hold the same as if said Lease had
never been made or issued. This provision does not become effective until the
procedures of 49 CPR Part 21 are followed and completed, including expiration of appeal
rights.
27
C. Affirmative Action.
1. Terminal Corporation assures that it will undertake an affirmative action
program, as required by 14 CFR Part 152, Subpart E, to ensure that no person shall,
on the ground of race, creed, color, national origin, or sex, be excluded from
participating in any employment, contracting, or leasing activities covered in 14 CFR
Part 152, Subpart E. Terminal Corporation 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 :his subpart. The County assures that it will require
that its covered organizations provide assurance to the grantee that they similarly will
undertake affirmative action programs and that theywill require assurances from their
suborganization, as required by 14 CPR Part 152, Subpart E, to the same effect.
2. Terminal Corporation agrees to comply with any affirmative action plan or
steps for equal employment opportunity required by 14 CFR, Part 152, Subpart E, as
part of the affirmative action program or by any Federal, state or local agency or
court, including those resulting from a conciliation Lease, a consent decree, court
order, or similar mechanism. Terminal Corporation agrees that state or local
affirmative action plan will be used in lieu of any affirmative action plan or steps
required by 14 CFR Part 152, Subpart E only when they fully meet the standards set
forth in 14 CFR 152.409. Terminal Corporation agrees to obtain a similar assurance
from its sub -lessees' covered organizations, and to cause them to require a similar
assurance of their covered suborganizations, as required by 14 CFR Part 152,
Subpart E.
P*i
APPENDIX NO.5
DISADVANTAGED BUSINESS ENTERPRISE PARTICIPATION
SECTION 1 GENERAL. Except as the context otherwise requires and unless
otherwise expressly provided herein, the capitalized terms in this Exhibit to the
Agreement shall have the same meaning as any similarly capitalized terms defined in the
Agreement or in any exhibit thereto.
SECTION 2 DBE OBLIGATION. This Agreement is subject to the requirements of
the U.S. Department of Transportation's regulations, 49 CFR Part 23, Subpart F. The
CONCESSIONAIRE agrees that it will not discriminate against any business owner
because of the owner's race, color, national origin, or sex in connection with the award or
performance of any concession agreement covered by 49 CFR Part 23, Subpart F.
SECTION 3 OTHER AGREEMENTS. The CONCESSIONAIRE agrees to include
the above statements in any subcontract concession agreements that it enters into and
cause those businesses to similarly include the statements in further agreements.
SECTION 4 DBE PARTICIPATION IN THIS AGREEMENT. CONCESSIONAIRE
agrees that it shall provide for at least zero percent (0%) participation by certified
Disadvantaged Business Enterprises (DBEs), as defined in 49 CFR Part 23, said
participation being measured as a percentage of total annual gross revenues
obtained -by CONCESSIONAIRE in its operations under this Agreement.
The CONCESSIONAIRE identified in its Proposal DBEs which it would retain as
subtenants, joint venture partners, suppliers, or service providers to participate in the
operations to be carried out under this Agreement. After this Agreement is executed,
CONCESSIONAIRE agrees to use its best efforts to enter into agreements with the DBE
firms it identified in its Proposal. Throughout the term of this Agreement,
CONCESSIONAIRE agrees that it shall continue to utilize qualified and available DBE
firms which have been and continue to be certified to the fullest extent which is
reasonably possible to achieve and to an extent necessary to comply with the above -
stated goals, including the goals related to purchases as applicable.
CONCESSIONAIRE shall make a good faith effort to meet each of the said goals
throughout the term of this Agreement. If a DBE subtenant, joint venturer, supplier or
service provider must be replaced for any reason during the term of this Agreement,
CONCESSIONAIRE agrees that it shall replace the subtenant, joint venturer, supplier or
service provider with another DBE, or if it cannot, then CONCESSIONAIRE shall
demonstrate that it made good faith efforts to do so.
29
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OFFICE OFTHE
COUNTYATTORNEY
(970) 328-8685
FAX: (970) 328-8699
w .eaglecounty.us
November 12, 2004
EAGLE COUNTY
Hy -Mountain Transportation
Attention: Todd Gardner
111C Aspen Airport Business Center
Aspen, CO 81611
Dear Mr. Gardner
u
Enclosed for your file is a fully signed original of the Agreement for Operation of
Ground Transportation Services between the Eagle County Air Terminal Corporation
and Hy -Mountain Transportation.
Also, enclosed is Hy -Mountain Transportation's surety check in the amount of
$5,000.00
If you have any questions, please call.
Very truly yours,
Bryan R. Treu
Assistant County Attorney
BRT:js
Enclosures
Eagle County Building, 500 Broadway, P.O. Box 850, Eagle, Colorado 81631-0850
I
II - 'P.O.`°f z9b T1"e' 3'iiA� i'Fc-YToC:, �aNsl tat• Nep•nb • -_a -�+
Alpine Bank
1 ► ® Box 10000
Glenwood Springs, CO 81602
1970) 945-2424:
REMITTER HY-MOUNTAIN TRANSPORTATION
j PAY EXACTLY **5,000 AND 00/100 DOLLARS
TO THE
ORDER OF SCAT
I �
I
B10000 L80 26 LIP 1: LO 2 i03404': LO L0046 L6711■
Cashiers Check
Date: 8/13/04 180261
Branch: 2210
$5,000.00
