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HomeMy WebLinkAboutECAT24-02 Tailwind EGE LLC_first amendment1 FIRST AMENDMENT TO AGREEMENT FOR OPERATION OF RETAIL CONCESSION AT EAGLE COUNTY REGIONAL AIRPORT TERMINAL BUILDING THIS FIRST AMENDMENT to the Agreement for Operation of Retail Concession at the Eagle County Regional Airport Terminal between the Eagle County Air Terminal Corporation, a nonprofit corporation of the State of Colorado ("CORPORATION") and Tailwind EGE, LLC, a limited liability company ("CONCESSIONAIRE") (hereinafter "First Amendment") is made and entered into effective as of the 1st day of July, 2023. RECITALS WHEREAS, CORPORATION and CONCESSIONAIRE entered into an Agreement for Operation of a Retail Concession for operation of a gift and news shop, retail, food, and beverage concession, and associated office and storage space in the terminal building at the Eagle County Regional Airport dated September 8, 2021 ("Original Agreement"); and WHEREAS, the parties desire to amend the Original Agreement to clarify and amend certain terms relating to compensation paid under the Agreement. FIRST AMENDMENT NOW THEREFORE, in consideration of the foregoing and the mutual rights and obligations as set forth below, the parties agree as follows: 1. Section 1.1 Definitions, subsection D. “CONCESSION SPACE” shall be deleted in its entirety and replaced with the following: D. “CONCESSION SPACE” shall mean the space as generally depicted on the Terminal Space Plan attached hereto as Exhibit B1 through Exhibit B4 located within the TERMINAL BUILDING, and an additional 30 square feet which consists of a mobile bar cart to be used by CONCESSIONAIRE throughout the TERMINAL BUILDING during the months of December – March of each Contract Year during the Initial Term hereof. The CORPORATION and CONCESSIONAIRE acknowledge and agree that the dimensions of the CONCESSION SPACE as set forth in Exhibit B1 through Exhibit B4 are approximate, and that for purposes of this Agreement it is deemed to be 2,820 square feet for space identified in Exhibit B1 – Exhibit B4, and 30 square feet for the mobile bar cart. Section 1.1 Definitions, a new subsection G shall be added as follows: DocuSign Envelope ID: 4C88C037-FB16-4333-AF95-47A46CE2F36B 2 G. “Contract Year” shall mean that period of July 1 – June 30 of each twelve- month period during the Term hereof. 2. Section 3.1 Term, subsection A. shall be deleted in its entirety and replaced with the following: A. The Initial Term of this Agreement shall become effective upon September 8, 2021 and shall expire at 12:01 a.m. on June 30, 2024, subject to prior termination as provided in Article 8 hereof (“Initial Term”). 3. Section 4.2 of the Original Agreement shall be deleted in its entirety and replaced with the following language: Section 4.2 Privilege Fee and Rent. A. Privilege Fee. For the concession privileges granted hereunder, and in addition to other fees and charges set forth herein to be paid by CONCESSIONAIRE, CONESSIONAIRE shall pay to CORPORATION during each Contract Year of the Initial Term of this Agreement the greater of the (i) Percentage Fee or (ii) the Minimum Annual Guarantee as set forth below: i. Percentage Fee: 12.5% of the monthly Gross Revenues under this Agreement on all services rendered or sales made by CONCESSIONAIRE on any food, beverages, goods, services and alcohol, said Gross Revenue being hereinafter defined in Section 4.3. When Gross Revenue exceeds one million dollars at any given time, Percentage Fee increases to 13.5%. CONCESSIONAIRE shall pay the Percentage Fee by the 15th day of the month for each month during each Contract Year of the Initial Term of this Agreement, on account of the preceding month. Simultaneously with payment, CONCESSIONAIRE shall furnish to the CORPORATION in a form acceptable to CORPORATION a true and accurate verified statement signed by an officer of CONCESSIONAIRE containing all of the information set forth in Section 4.8, Monthly Statements, below. ii. Minimum Annual Guarantee (“MAG”): 2023/2024 July 1 - June 30: 65% of total Privilege Fee payable for the preceding Contract Year 2024/2025 July 1 - June 30: 70% of total Privilege Fee payable for the preceding Contract Year (in the event the Initial Term is renewed) 2025/2026 July 1 - June 30: 75% of total Privilege Fee payable for the preceding Contract Year (in the event the Initial Term is renewed) DocuSign Envelope ID: 4C88C037-FB16-4333-AF95-47A46CE2F36B 3 In no event shall the MAG for the next succeeding Contract Year be less than the MAG for the previous Contract Year. Within sixty (60) days after the end of each Contract Year, Concessionaire shall provide to the Aviation Director an audit report of all Gross Revenues from its operations under this Agreement for the prior Contract Year. The audit report shall be prepared by an independent certified public accountant in accordance with generally accepted auditing standards. The audit report shall include, but not be limited to, the following: a. schedule of all revenues broken down by category and by month, and a schedule of the payments to CORPORATION for such Contract Year. b. Schedule of the MAG and Percentage Fee payments to the CORPORATION for the Contract Year. c. A calculation to determine that the total annual Privilege Fee payable in accordance with this Agreement. d. The preparing accountant's opinion on the schedule of all revenues by calendar month, the schedule of payments to the CORPORATION, and the calculation of Privilege Fees. Within sixty (60) days after the issuance of the audit report, the Parties will meet and review the Percentage Fee paid and Gross Revenues for the Contract Year. Any overpayment by CONCESSIONAIRE shall be applied as a payment and credited toward Privilege Fees due in the succeeding year. Any overpayment in the last year of the Initial Term shall be refunded within thirty (30) days following receipt of an invoice for such overpayment. If the total Percentage Fees actually paid by CONCESSIONAIRE during any Contract Year are less than the MAG for such Contract Year, then Concessionaire shall immediately pay the difference to CORPORATION with interest thereon, at eighteen percent (18%) per annum from the date such additional Privilege Fees were due, without further demand. B. Rent. For the use of the CONCESSION SPACE during the Initial Term of this Agreement, CONCESSIONAIRE shall pay the sum of four dollars ($4.00) per square foot per month, for a total of $11,280 per month (2,820 x $4.00)(“Rent”). For the months of December – March of each Contract Year during the Initial Term of this Agreement, Rent shall be $11,400.00 per month, which represents an increase of $120.00 (30 x $4.00) per month for use of the mobile bar car in the TERMINAL BUILDING. All Rent payments shall be made in advance and without demand, on the 1st day of each calendar month during the Initial Term of this Agreement. This rate is subject to annual adjustment as determined by the CORPORATION, in its sole discretion. DocuSign Envelope ID: 4C88C037-FB16-4333-AF95-47A46CE2F36B 4 4. Section 5.7 shall be deleted in its entirety and replaced with the following: Section 5.7 Compliance with all laws and Regulations. CONCESSIONAIRE agrees not to use or permit the CONCESSION SPACE to be used for any purpose prohibited by the laws of the United States or the State of Colorado, the resolutions or ordinances of the Town of Gypsum or Eagle County, or AIRPORT rules and regulations, all as amended from time to time, and not otherwise authorized hereunder, and it further agrees that it will use the CONCESSION SPACE in accordance with all applicable federal, state and local laws, ordinances, resolutions and all rules and regulations adopted by the County or the CORPORATION for the management, operation and control of the TERMINAL BUILDING or the AIRPORT, either promulgated by the CORPORATION or Eagle County, on (respectively) its own initiative or in compliance with regulations or actions of the Federal Aviation Administration or other authorized federal agency. CONCESSIONAIRE further agrees to submit any report or reports or information which the CORPORATION is required by law or regulation to obtain from CONCESSIONAIRE or which CORPORATION may request relating to CONCESSIONAIRE’s operations. In addition, CONCESSIONAIRE agrees that it shall provide CORPORATION with copies of any state or county retail food establishment inspection reports making a finding of “not passing” within 24 hours of receipt by CONCESSIONAIRE. 5. Capitalized terms in this First Amendment will have the same meaning as in the Original Agreement. To the extent that the terms and provisions of the First Amendment conflict with, modify or supplement portions of the Original Agreement, the terms and provisions contained in this First Amendment shall govern and control the rights and obligations of the parties. 6. Except as expressly altered, modified and changed in this First Amendment, all terms and provisions of the Original Agreement shall remain in full force and effect, and are hereby ratified and confirmed in all respects as of the date hereof. 7. This First Amendment shall be binding on the parties hereto, their heirs, executors, successors, and assigns. [Remainder of page left intentionally blank] DocuSign Envelope ID: 4C88C037-FB16-4333-AF95-47A46CE2F36B 5 IN WITNESS WHEREOF, the parties hereto have executed this FIRST AMENDMENT effective as of the date first written above. CORPORATION: Eagle County Air Terminal Corporation By: __________________________ Matt Scherr, President ATTEST: ________________________________ Jeff Shroll, Secretary CONCESSIONAIRE By: _____________________________________ Print Name:______________________________ Title: ___________________________________ DocuSign Envelope ID: 4C88C037-FB16-4333-AF95-47A46CE2F36B Jeff Switzer CEO and President