No preview available
HomeMy WebLinkAboutECAT C05-233 Leibowitz & HortonCONSULTING AGREEMENT BETWEEN EAGLE COUNTY AIR TERMINAL CORPORATION AND LEIBOWITZ & HORTON This Consulting Agreement ("Agreement") dated this IDA day of August, 2005, is between the Eagle County Air Terminal Corporation, a not for profit 63-20 corporation of the State of Colorado CSCAT") and Leibowitz & Horton, a Colorado corporation, whose principal address is 31 Blue Heron Drive, Greenwood Village, Colorado 80121 ("Consultant"). Recitals WHEREAS, SCAT desires to engage an airport management consulting firm for professional assistance in preparing and negotiating a new Terminal Building Lease for airline tenants operating at the Eagle County Regional Airport as more particularly outlined in Section 1.1 hereunder; WHEREAS, Consultant has represented that it has the experience and knowledge in the subject matter necessary to carry out the services outlined in Section 1.1 hereunder; WHEREAS, ECAT wishes to hire Consultant to perform the tasks associated with such services outlined in Section 1.1 hereunder; WHEREAS, ECAT and Consultant intend by this Agreement to set forth the scope of the responsibilities of the Consultant in connection with the services and related terms and conditions to govern the relationship between Consultant and ECAT in connection with the services. Aareement Therefore, based upon the representations by Consultant set forth in the foregoing recitals, for good and valuable consideration, including the promises set forth herein, the parties agree to the following: 1. Services Provided: 1.1 Consultant shall provide the consulting services as more particularly set forth in Exhibit "A," attached hereto and incorporated by reference ("Consulting Services" or "Services"). If any provisions of this Agreement and the attached Exhibit "A" conflict, then the provisions of this Agreement shall control. 1 1.2 The parties hereto recognize that the scope of the Services may change. when Consultant believes that the scope of the Services has been changed, or by reason of a decision of ECAT it will be required to redo properly completed Services, Consultant shall immediately advise SCAT of such belief and shall also provide a statement of the maximum additional charges for such services. Consultant shall not be entitled to be paid for any such additional services unless and until SCAT agrees in writing that the scope of the Services has changed and accepts the statement of the maximum additional charges. 1.3 Consultant agrees that Consultant will not enter into any consulting arrangements with third parties that will conflict in any manner with the Consulting Services. 2. Term of Agreement: 2.1 This Agreement shall commence upon execution of this Agreement, subject to the provisions of Section 2.2 hereof, shall continue in full force and effect in accordance with the schedule set forth in Exhibit "A" or as otherwise agreed to by the Parties. 2.2 ECAT may terminate this Agreement, in whole or in part, for its convenience upon providing ten (10) days' written notice to Consultant. Consultant may terminate this Agreement upon the default of ECAT of its obligations herein following a ten (10) day notice and opportunity to cure said default. Upon termination, Consultant shall deliver to ECAT all data and other documents entirely or partially completed, together with all material supplied to Consultant by ECAT. Payment will be due within thirty (30) days after Consultant has delivered the last of the partially completed documents, together with any records that may be required to determine the amount due. 2.3 In the event of any termination of this Agreement, ECAT shall be liable only for Services satisfactorily completed up to the termination date, plus approved expenses. 2 1*WV 3. Independent Contractor: 3.1 With respect to the provision of the Consulting Services hereunder, Consultant acknowledges that Consultant is an independent contractor providing Consulting Services to SCAT. Nothing in this Agreement shall be deemed to make Consultant an agent, employee, partner or representative of SCAT. Moreover, this Agreement creates no entitlement to participate in any of the Employee Benefit Plans of SCAT or the County including insurance, paid vacation and recognized holidays. Consultant shall be solely and entirely responsible for its acts and for the acts of Consultant's agents, employees, servants and subcontractors during the performance of this Agreement. 3.2 Consultant shall not have the authority to, and shall not make any commitments or enter into any agreement with any party on behalf of SCAT without the written consent of a senior management representative of SCAT. 4. Remuneration: 4.1 In consideration of its performance of the Services, ECAT shall pay Consultant for its time and reimbursable expenses as follows: ECAT shall pay Consultant $15,600 for preparing/revising the initial lease draft and preliminary rate calculations. Due to the uncertain time frame required for conducting the negotiation process, considering alternative contract provisions and revising the agreement, fees for these services will be billed on a time and materials basis charged at the standard hourly rate of $195/hour for principals of Leibowitz & Horton with out-of-pocket project expenses charged as actually incurred, in an amount not to exceed $io,000. Payment for Supplemental Services beyond this amount will only be by written amendment to this Agreement in an amount mutually agreed to by the parties. 4.2 Consultant shall submit to ECAT invoices for payment identifying the work completed or covered by the invoice as of the date of the invoice and accompanied by such supporting documentation as ECAT may reasonably require. ECAT agrees to pay Consultant within thirty (30) days of receipt of a properly documented invoice. Upon request, Consultant shall provide ECAT with such other supporting information as SCAT may request. In the event this Agreement is terminated pursuant to Section 2.2 herein, Consultant shall only be entitled to retain payment for those Services satisfactorily completed up to the termination date, plus approved expenses. 4.3 Consultant shall maintain comprehensive, complete and accurate records and accounts of its performance relating to this Agreement for a period of three (3) years following final payment hereunder, which period shall be extended at ECAT's reasonable request. 4.4 ECAT will not withhold any taxes from monies paid to Consultant hereunder and Consultant agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. 4.5 The funds appropriated for this project are equal to or in excess of the contract amount. Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to County nor shall any payment be made to Consultant in excess of the above amounts for any work done without the written approval of the County in accordance with a budget adopted by the Board of County Commissioners in accordance with the provisions of the Colorado Revised Statutes. 5. Indemnification: 5.1 Within the limits allowed by law, Consultant shall indemnify ECAT and County for, and hold and defend ECAT, County and their officials, boards, officers, principals and employees, harmless from, all costs, claims and expenses, including reasonable attorney's fees, arising from claims of any nature whatsoever made by any person in connection with the acts or omissions of, or representations by, the Consultant, Consultant's agents, employees, servants or subcontractors, in the performance of this Agreement. This indemnification shall not apply to claims by third parties against ECAT or County to the extent that ECAT or the County is liable to such third party for such claim without regard to the involvement of Consultant. To the extent permitted by law, ECAT shall indemnify Consultant for, and hold and defend Consultant and its officials, boards, officers, 4 principals and employees, harmless from, all costs, claims and expenses, including reasonable attorney's fees, arising from claims of any nature whatsoever made by any person in connection with the acts or omissions of, or representations by SCAT, ECAT's agents, employees, servants or subcontractors, in the performance of this Agreement. 6. Insurance: 6.1 At all times during the term of this Agreement, Consultant shall maintain the following insurance: Type of Insurance: General Liability Workers' Compensation Coverage Limits: s1,000,000 minimum Statutory limits All insurance required hereby shall be issued by an insurance company or companies authorized to do business in the State of Colorado. Consultant shall deliver certificates of required insurance to SCAT within fifteen (15) calendar days of execution of this Agreement by the Board. Before permitting any subcontractor approved by SCAT to perform any Services under this Agreement, Consultant shall either (1) require each of his subcontractors to procure and maintain, during the life of his subcontracts, insurance which meets the requirements for the Consultant herein, or (2) provide for insurance of the subcontractor in Consultant's own policies in the amounts required hereinabove. 7. Consultant's Professional Level of Care: 7.1 Consultant shall be responsible for the completeness and accuracy of the Consulting Services, including all supporting data and other documents prepared or compiled in performance of the Services, and shall correct, at its sole expense, all significant errors and omissions therein. The fact that SCAT has accepted or approved the Consulting Services shall not relieve Consultant of any of its responsibilities. Consultant shall perform the Consulting Services in a skillful, professional and competent manner and in accordance with s IIM� the standard of care, skill and diligence applicable to consultants, with respect to similar services, in this area at this time. 7.2 Consultant understands and hereby acknowledges that ECAT is relying primarily upon the expertise and professional abilities of the officers of Consultant. This Agreement is conditioned upon the continuing direct involvement of these officers of Consultant in the Services. Consultant may not subcontract or delegate any part of the Services or substitute subcontractors without ECAT's written consent, which consent SCAT may exercise in its sole discretion. Except as so provided, this Agreement shall be binding on and inure to the benefit of the parties hereto, and their respective successors and assigns, and shall not be deemed to be for the benefit of or enforceable by any third party. 8. Notices: 8.1 Any notice to be given by any party to the other shall be in writing and shall be deemed to have been duly given if delivered personally, by facsimile transmission or if sent by prepaid first class mail, and for the purposes aforesaid, the addresses of the parties are as follows: (a) Eagle County Attorneys Office 500 Broadway PO Box 850 Eagle, CO 81631 Tel: (970) 328-8685 Fax: (970) 328-8699 (b) Leibowitz & Horton 31 Blue Heron Drive Greenwood village, CO 80121 Tel: (303) 773-6761 Fax: (303) 773-6709 8.2 Notices shall be deemed given on the date of delivery; on the date a fax is transmitted and confirmed received or, if transmitted after normal business hours, on the next business day after transmission, provided that a paper copy is mailed the same date; or three (3) days after the date of deposit, first class postage prepaid, in an official depositary of the U.S. Postal Service. 9. Miscellaneous: 9.1 Consultant shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement on the basis of race, color, religion, national origin, sex, ancestry, physical handicap, age, political affiliation or family responsibility. Consultant shall require all subcontractors to agree to the provisions of this subparagraph. 9.2 This Agreement shall be interpreted in accordance with the laws of the State of Colorado and the parties hereby agree to submit to the jurisdiction of the courts thereof. Venue shall be in the Fifth ,Judicial District for the State of Colorado. 9.3 The Consultant and SCAT acknowledge that, during the term of this Agreement and in the course of the Consultant rendering the Consulting Services, the Consultant may acquire knowledge of the business operations of SCAT and other aspects of the business affairs of SCAT that are not generally known and the Consultant shall not disclose, use, publish or otherwise reveal, either directly or through another, to any person, firm or corporation, any knowledge, information or facts concerning any of the past or then business operations of SCAT and shall retain all knowledge and information which he has acquired as the result of this Agreement in trust in a fiduciary capacity for the sole benefit of SCAT, its successors and assigns during the term of this Agreement, and for a period of five (5) years following termination of this Agreement. 9.4 All documents (including electronic files) which are obtained during or prepared in the performance of the Consulting Services shall remain the property of SCAT and are to be delivered to SCAT before final payment is made to Consultant or upon earlier termination of this Agreement. 9.5 The making, execution and delivery of this Agreement by the parties hereto has not been induced by any prior or contemporaneous representation, statement, warranty or agreement as to any matter other than those herein expressed. This Agreement embodies the entire understanding and agreement of the parties, and there are no further or other agreements or understandings, written or oral, \4000/ in effect between them relating to the subject matter hereof. This Agreement may not be amended, including by any modification of, deletion from or addition to the scope of Services, except by a written document of equal formality executed by both parties hereto. s IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. EAGLE COUNTY AIR TERMINAL CORPORATION, A Colorado nonprofit corpo ion By. Arn M. Menconi, President LEIBOWITZ & HORTON By: Stephen B. Horton STATE OF ■A HUM ) )ss: COUNTY OF The foregoing instrument was acknow dged before me Of August, 2005, by Stephen B. Horton as(l�nc�uU Horton. Witness my hand and official seal. My commission expires: ! I I;( -00� this Ltl day of Leibowitz & t B Day TAgge otary Public .°l�gL�G.�Qo P OF COLO� � ' ; �.,, . z Ge�dn-:u: t.�-..tE/� s r-�le. =..._ -" .rI July 28, 2005 Ms. Diane H. Mauriello County Attorney Eagle County Building 500 Broadway Eagle, Colorado 81631-0850 Dear Ms. Mauriello: YJ Leibowitz&Horton Airport Management Consultants Incorporated 31 Blue Heron Ddve Greenwood Village, Colorado 80121 (303) 773-6761 • Fax (303) 773-6709 Thank you for the opportunity to assist the Eagle County Air Terminal Corporation (SCAT) in preparing and negotiating a new Terminal Building Lease commencing on December 1, 2006 for airline tenants operating at the Eagle County Regional Airport. This letter presents the objectives, approach, time frame and fee estimate that we propose for conducting this project. Objectives The objective of this project is to prepare and negotiate a Terminal Building Lease for signatory airlines that reflects common industry practices and focuses on the County's desired relationship with the airlines while maintaining ECAT's financial stability in the future. This objective includes ensuring that County resolutions, federal regulations and other legal requirements are met. Approach Our approach for conducting this project includes the following steps: • Prepare an initial draft of the Terminal Building Lease beginning with the 2006-07 ski season • Prepare a preliminary calculation of estimated 2006-07 terminal rental rates as follows: •• Review the detailed 2005 budget of revenues, expenses and capital outlays •• Review 2004 passenger enplanements and anticipated space to be leased in the terminal •• Project a budget for 2007 and enplanements for 2005 •• Calculate 2006-07 airline rental rates based on a full cost recovery approach using common industry practices • Review the lease draft and preliminary rate calculations with ECAT management and the County Attorney Revise the lease draft and rate calculations as necessary and prepare a summary of key lease provisions/issues for presentation to the County Commission -1- EXHIBIT b O 9 � • Meet with ECAT's current airline tenants to determine their plans and concerns for providing air service to Eagle under a new lease agreement for the term beginning on December 1, 2006 • Meet with the County Commission to review and discuss: •• The County's objectives and philosophies for implementing a new airline terminal lease and establishing a new rental rate structure •• Summary of key lease provisions and issues •• Process for calculating the signatory airline rental rates using common industry practices • • Process and strategy for negotiating the new lease commencing on December 1, 2006 • • Preliminary schedule for conducting negotiations with the airlines • Revise the lease draft/preliminary rate calculations as necessary and establish a planned schedule for initial negotiation meetings • Send preliminary documents to the airlines and confum the first meeting date • Conduct negotiation meetings with the airlines, as required, to review and discuss the proposed new lease agreement and preliminary rate calculations for the term beginning December 1, 2006 • Prepare analyses in response to airline concerns, alternative rate structure proposals and alternative contract provision proposals • Finalize the contract document and rate calculations. Time Frame The time frame for preparing the initial lease draft and preliminary rental rate calculations (based on currently available budget and enplanement data) will be four to six weeks after a notice to proceed for the project is issued. We anticipate that these documents will be reviewed with the County Commission by mid September. Revisions to the lease draft and rate calculations will require approximately one additional week. The time frame for conducting the negotiation process is difficult to estimate because of the airlines' availability and their own agenda for completing the negotiation. The negotiation meetings could take several months to conclude. Initially, we anticipate two -three trips to Eagle to review the draft agreement and preliminary rate calculations and discuss any concerns the airlines may raise. The actual time span and number of trips required will depend on any difficulties encountered and on the manner in which the airlines conduct the negotiation. -2- Fee Estimate Our fees for preparing/revising the initial lease draft and preliminary rate calculations will be $15,600. Because of the uncertain time frame required for conducting the negotiation process, considering alternative contract provisions and revising the agreement, our fees for these services will be on a time -and -materials basis charged at our standard hourly rate of $195/hour for principals on our staff. Any out-of-pocket project expenses will be charged as actually incurred. We appreciate the opportunity to assist the you with this project. Should you have any questions or need additional clarification of any element of our approach, please contact us to discuss them further. Very truly, 'C. 8 -, MPr"--- Stephen B . Horton -3- r'r ���'� [ � f 1'C {f �` fit- 7