HomeMy WebLinkAboutR96-071 ECAT 1996 bonds for construction of airport-, ~'
Com_ missioner moved adoption
of he following Resolution:
BOARD OF COUNTY COMMISSIONERS
COUNTY OF EAGLE, STATE OF COLORADO
RESOLUTION NO. 96-~
ADOPTED JUNE ~, 1996
APPROVING THE ISSUANCE BY EAGLE COUNTY AIR
TERMINAL CORPORATION OF UP TO $11,000,000
AGGREGATE PRINCIPAL AMOUNT OF AIRPORT
TERMINAL PROJECT REVENUE BONDS, SERIES 1996;
AUTHORIZING THE EXECUTION AND DELIVERY OF A
GROUND LEASE, A PROJECT AGREEMENT, A PROJECT
CONSTRUCTION AND MANAGEMENT AGREEMENT, AND
OTHER RELATED PROJECT DOCUMENTS; ASSIGNING
CERTAIN RIGHTS AND INTERESTS OF THE COUNTY IN
CONNECTION WITH THE PROJECT; AUTHORIZING
INCIDENTAL ACTION; AND REPEALING INCONSISTENT
ACTIONS.
WHEREAS, the Eagle County Air Terminal Corporation (the "Corporation") has
been duly organized pursuant to the provisions of the Colorado Nonprofit Corporation Act,
articles 20 through 29 of title 7, Colorado Revised Statutes, as amended; and
WHEREAS, as set forth in its Articles of Incorporation, the Corporation is
organized and shall be operated exclusively on behalf of and for the benefit of Eagle County,
Colorado (the "County") and in furtherance of such purposes has the authority to issue its own
bonds; and
WHEREAS, the Corporation intends to construct a passenger terminal project (the
"Project") at the Eagle County Regional Airport; and
WHEREAS, the Corporation has no taxing power, has not received and does not
expect to receive more than 10% of its annual revenues in grants or other forms of subsidy from
all State and local governments combined, and expects to operate as aself-supporting business
without reliance on grants from the County; and
WHEREAS, to provide the funds needed for the acquisition and construction of
the Project, the Corporation intends to enter into a Trust Indenture (the "Indenture") between the
Corporation and Colorado National Bank, as Trustee (the "Trustee") and issue up to $11,000,000
\\\DE • 65064!2 - 0016221.02
t ~''1 '•
aggregate principal amount of its Airport Terminal Project Revenue Bonds, Series 1996 (the
"Bonds"); and
WHEREAS, the County and the Corporation intend to enter into a Ground Lease
(the "Ground Lease"), a Project Agreement (the "Project Agreement"), and a Project
Construction and Management Agreement (the "Management Agreement"), all relating to the
Project (sometimes referred to herein together as the "Project Documents"); and
WHEREAS, pursuant to Section 147(f) of the Internal Revenue Code of 1986, as
amended, the Board of County Commissioners conducted a public hearing on June 11, 1996,
concerning the issues of the Bonds following due public notice of such hearing published in the
Eagle Va11e~Enter~rise.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF EAGLE COUNTY, COLORADO, AS FOLLOWS:
Section 1. TSSTJANCE OF BONDS. The issuance of the Bonds by the
Corporation in an aggregate principal amount of up to $11,000,000, bearing interest at a rate not
to exceed 8% per annum, as described herein and in the Indenture is hereby approved.
Section 2. APPROVAL OF THE GROUND LEASE, PROJECT
AGREEMENT, AND MANAGEMENT AGREEMENT. The County hereby confirms its
approval of the Ground Lease in the form previously submitted to and approved by the Board of
County Commissioners. The forms of the Project Agreement and the Management Agreement
presented to this meeting, including the County's agreement under the Project Agreement to
accept title to the Project upon retirement of all of the Bonds, are hereby approved. The
Chairman of the Board of County Commissioners of the County (the "Chairman") is hereby
authorized to execute and deliver, and the County Clerk and Recorder of the County (the
"Clerk") is hereby authorized to affix the seal of the County where appropriate to, and attest,
such Project Documents in substantially such form and upon the terms and conditions set forth
herein and therein, with such changes therein as such officers shall approve (including changes in
dates and amounts necessary to conform such documents to the final terms as approved by the
County), such approval to be evidenced by the execution thereof. Notwithstanding any other
provision of this Resolution, the Chairman is hereby authorized to make or approve such
revisions in the Ground Lease, the Project Agreement, and Management Agreement as, in the
opinion of the County Attorney, may be necessary or convenient to carry out or assist in carrying
out the purposes of this Resolution.
Section 3. ASSIGNMENT OF RIGHTS AND INTERESTS The assignment
of the County's rights and interests in any and all contracts and agreements for architectural and
engineering services and related contracts, plans, drawings, and specifications in connection with
the Project, and any and all other contracts, agreements, licenses, permits, leases, easements,
covenants, encumbrances, drawings, plans, specifications, proposals, and documents and similar
rights and interests that the County may have and the Corporation may require in order to enter
into and perform the Ground Lease, the Project Agreement, and the Management Agreement, to
construct, operate and maintain the Project, and to issue the Bonds, is hereby authorized and
-2-
\\\DE • 65064/2 - 0016221.02
~ '.
t.
r
approved. The Chairman and the Clerk are hereby authorized and directed to execute and deliver
such other documents, and take such other action as, in the opinion of the County Attorney, may
be necessary or appropriate in order to effectuate the assignment of such rights and interests.
Section 4. INCIDENTAL ACTION. The Chairman is hereby authorized and
directed to execute and deliver, and the Clerk is hereby authorized to affix the seal of the County
where appropriate to, and attest, such other documents, including without limitation conveyances
of real and personal property, and to take such other action as may be necessary or appropriate in
order to effectuate the delivery by the County of the Ground Lease, the Project Agreement, the
Management Agreement, and such other documents as shall be necessary for (a) the performance
of the County's obligations thereunder, (b) the construction, operation, and maintenance of the
Project, and (c) the issuance and sale of the Bonds by the Corporation. Notwithstanding any
other provisions of this Resolution, the Chairman is hereby authorized to make or approve such
revisions in such documents as may be necessary or convenient to carry out or assist in carrying
out the purposes of this Resolution and determining the actual principal amount of and rate of
interest on the Bonds.
Section 5. BONDS SHALL NOT CONSTITUTE A FINANCIAL
LIABILITY OF THE COUNTY. The Bonds and the Project Documents shalt never
constitute the debt, indebtedness, or financial obligation of the County within the meaning
of any provision or limitation of the Colorado Constitution, or Colorado Statutes, and shall
not constitute or give rise to a financial liability of the County or charge against its general
credit or taxing powers.
Section 6. RF.SOLT 1TION IRREPEALABLE. This Resolution is, and shall
constitute, a legislative measure of the County, and after the Bonds are issued and outstanding,
this Resolution shall constitute a contract between the County and the owner or owners of the
Bonds, and shall be and remain irrepealable until the Bonds and the interest accruing thereon
shall be fully paid, satisfied and discharged.
Section 7. SEVERABILITY. The various paragraphs, clauses or provisions
of this Resolution are severable. If any paragraph, clause or provision of this Resolution is
judicially adjudged invalid or unenforceable, such judgment shall not affect, impair or invalidate
the remaining paragraphs, clauses or provisions hereof.
Section 8. REPEAT. OF INCONSISTENT ACTION. To the extent that any
earlier resolution or part thereof of the Board of County Commissioners of the County may be
inconsistent with this Resolution, such inconsistent resolution or part thereof is hereby repealed
to the extent only of such inconsistency. This repealer shall not be construed to revive any act,
order, resolution, or part thereof, heretofore repealed.
-3-
\\\DE - 65064/2 - 0016221 02
~-
Section 9. EFFECTIVE DATE.
immediately upon its adoption. ~
ADOPTED thi~ay of June, 1996.
This Resolution shall take effect
EAGLE COUNTY, COLORADO,
By and Through its BOARD OF
COUNTY COMMISSIONERS
AT ~
Clerk to the Bo d of
County Commissioners
(SEAL)
r .~,,
~~~ ~
!r',~~~~
..,....~
By:
George .Gates, Chairman
~•
F. J ette Phillips, Commission r
James E. Jo n, Jr., issioner
-4-
\\\DE • 65064/2 - 0016221 02
Commissioner `j seconded adoption of the
foregoing resolution. T e roll having been called, the vote was
as follows:
Commissioner George A. Gates
Commissioner Johnnette Phillips O
Commissioner James E. Johnson, Jr. Q~LI~
This Resolution passed by c~ - ~ vote of the Board of
County Commissioners of the County of Eagle, State of Colorado.
EAGLE COUNTY AIRPORT TERMINAL FACILITIES PROJECT
PROJECT AGREEMENT
THIS AGREEMENT is made as of the day of June 1996, by and between
EAGLE COUNTY AIR TERMNAL CORPORATION, a Colorado nonprofit corporation (the
"Corporation") and EAGLE COUNTY, COLORADO (the "County").
A. The Corporation has been organized to acquire, construct, operate and
maintain property in order to provide certain airport facilities, for the benefit and on behalf of the
County and its inhabitants.
B. The Corporation shall issue its Airport Terminal Facilities Project
Revenue Bonds, Series 1996 (the "Bonds") for the purpose of acquiring, constructing and
completing real and personal property to be owned and operated by the Corporation 2nd known
as the Eagle County Airport Terminal Facilities Project (the "Project"), to be located on the
property described in Ezhibit A hereto, to serve the Eagle County Regional Airport (the
"Airport") owned and operated by the County.
C. The Bonds shall be issued pursuant to the Trust Indenture dated as of
June 1, 1996 (the "Indenture") between the Corporation and Colorado National Bank, as Trustee
(the "Trustee").
D. The Bonds shall be payable from net revenues from the Project and from
passenger facility charges ("PFCs") to be imposed and used under the United States Department
of Transportation, Federal Aviation Administration ("FAA") rule at 14 CFR Part 158 (the "PFC
Rule"). In order to approve the PFC applications, the FAA must be satisfied that the County will
be able to comply with all PFC assurances required by the PFC Rule and 49 U.S.C. 40117 and
other provisions of applicable law.
All capitalized terms used herein, unless otherwise defined, shall have the
meanings ascribed thereto in the Indenture.
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the County and the Corporation, on behalf of themselves and their
respective successors and assigns, agree as follows:
Section 1. i.eACe of Land: County Benefit. In order to facilitate the
Corporation's completion of the Project, the County shall grant to the Corporation a leasehold
interest in certain land, together with rights of ingress and egress, as necessary for the
construction, equipping, maintenance and operation of the Project. The Corporation covenants
and agrees that all activities of the Corporation shall be undertaken for the benefit of the County.
\\\DE - 6506412 -0015299.02
Upon termination.of this Agreement, the County shall be entitled to acquire title to the Project
without cost.
Section 2. Project Operation. The Corporation hereby covenants and agrees
to operate and maintain the Project, or cause the Project to be operated and maintained, in a safe ,
and efficient manner as provided in the Indenture and as required to meet all applicable
obligations of the County under its Airport grant agreements, and all applicable standards of the
FAA or other proper federal, state or local governmental authority for the receipt and dispatch of
passengers, property, and mail by aircraft. Nothing herein or in any resolutions of the County
relating to the Project or the Bonds shall be interpreted to require the County to undertake
financial responsibility for operation of the Project. The Corporation shall indemnify and hold
harmless the County, its officers, agents and employees and members of its Board of County
Commissioners with respect to any liability or damages arising under action or claims against the
County as a result of the operation thereof by the Corporation. The County agrees to assign to
the Corporation all Terminal Agreements entered into by the County prior to the execution of
this Project Agreement.
Section 3. A~port OFeration. The County shall operate and maintain the
Airport, or cause the Airport to be operated and maintained, in a manner suitable for air transport
operations, in conformity with standards customarily followed by municipal authorities operating
airport facilities of like size and chazacter, meet all applicable obligations of the County under its
Airport grant agreements, and all applicable standazds required in order that the same may
qualify under the PFC Rule and may be approved by the FAA or other proper federal, state or
local governmental authority for the landing and departure of aircraft for scheduled service or
otherwise and as a terminal point for the receipt and dispatch of passengers, property, and mail
by aircraft. Unless compliance with this covenant in a particular situation would violate state or
federal law, the County shall not construct or operate or facilitate the construction or operation of
other facilities competing with the operation of the Project or the Airport, or take any other
action, in a manner that would materially and adversely affect the Corporation's operation of the
Project, the Project Revenues to be derived therefrom, or the security for the Bonds. The County
shall not sell or transfer all of the Airport or a substantial pazt thereof until the Bonds aze no
longer deemed to be outstanding under the Indenture, but this covenant shall not restrict the
County's ability to lease the Airport or any portion of the Airport, or grant easements or licenses
thereto, in the normal course of business, to dispose of unnecessary property, to contract for the
management or operation of the Airport or any portion thereof, or to transfer all or a substantial
part of the Airport to another entity so long as such entity assumes the duties, powers, liabilities
and rights of the County under this Agreement and so long as any such lease, easement, license,
disposal of property, management contract, or transfer does not materially and adversely affect
the rights of any owner of the Bonds. Any lease, management contract, or other encumbrance
that covers the Project shall be terminable as provided in Sections 5 and 6 hereof.
Section 4. PFC Revenue. The County shall follow all procedures under the PFC
Rule and apply to the FAA to qualify the Project and obtain authority to impose (and for the
Corporation to use) PFCs in the amount of $3.00 per passenger enplaned at the Airport, for the
payment of allowable Project costs under the PFC Rule, including debt service on the Bonds and
2
\UDE - 65064/2 -0015299 02
other Bond financing costs. In furtherance of such purpose, the County's application to the FAA
shall include a provision directing air carriers and foreign air carriers to remit PFC Revenue
directly to the Trustee for deposit in the PFC Account in the Bond Fund established under the
Indenture. The Corporation shall cooperate with the County in such application and shall join
with the County in assuring continued compliance with the PFC Rule, as in effect from time to
time. PFC Revenue received by the Corporation from carvers serving the Airport shall be used
only for allowable Project costs under the PFC Rule, including the use of excess PFC Revenue as
permitted thereunder.
In furtherance of the foregoing, the Corporation and the County specifically agree
as follows:
(a) The County shall have all necessary powers to satisfy the PFC
assurances made to the FAA in connection with any PFC applications for the use
of PFC Revenue at the Airport, and the Corporation shall enter into all agreements
and assurances and take all other actions that may be necessary to obtain and
maintain FAA approval for the use of PFCs at the Airport.
(b) In connection with any portion of the Project funded with
passenger facility charges generated at the Airport, the County shall have the
exclusive power to direct the planning, design, construction, financing and
implementation of any such portion of the Project. In carrying out the Project,
and in addition to specific requirements stated elsewhere in this Agreement, the
Corporation shall implement such policies, procedures, methods, planning,
reporting, budgeting, scheduling, contracting, and payment mechanisms as may
be required to comply with this Agreement or as otherwise requested by the
County. The Corporation shall cooperate fully with the County to enable the
County to carry out the functions set forth in this section.
(c) The Corporation will not enter into an exclusive long-term lease or
use agreement (as defined in the PFC Rule) with an air carrier or foreign air
carrier for projects funded by PFC Revenue, and its leases and use agreements
with air carriers or foreign air carriers for facilities funded by PFC Revenue will
not preclude the County or the Corporation from funding, developing or assigning
new capacity at the Airport with PFC Revenue.
(d) The Corporation will not enter into any lease or use agreement
with any air carrier or foreign air carrier for any facility financed in whole or in
part with revenue derived from a PFC if such agreement for such facility contains
a carryover provision regarding a renewal option which, upon expiration of the
original lease, would operate to automatically extend the term of such agreement
with such carrier in preference to any potentially competing air carrier or foreign
air carrier seeking to negotiate a lease or use agreement for such facility.
3
\\\DE • 65064/2 -0015299 02
(e). Any lease or use agreement between the Corporation and any air
carrier or foreign air carrier for any facility financed in whole or in part with
revenue derived from a PFC will contain a provision that permits the Corporation
to terminate the lease or use agreement if --
(i) the air carrier or foreign air carrier has an exclusive
lease or use agreement for existing facilities at the Airport, and
(ii) any portion of its existing exclusive use facilities is
not fully utilized and is not made available for use by potentially
competing air carriers or foreign air carriers.
(f) The Corporation will provide the County with copies of all draft
lease and use agreements for Corporation-owned facilities funded by PFC
Revenue generated at the Airport, and will provide the County with an
opportunity to review such agreements before execution. If the County
determines that such agreements contain provisions that could violate the
requirements of the PFC Rule, the Corporation shall remove such provisions and
modify the agreements in order to bring them into conformity with the PFC Rule,
or provide the County with documentary evidence that the FAA has determined
that the proposed agreements would not violate the PFC Rule. The Corporation
shall modify any such agreement as necessary in order to comply with FAA
guidance as to the requirements of the PFC Rule before executing such
agreement.
(g) (i) The Corporation will not treat PFC Revenue as
airport revenue for the purpose of establishing a rate, fee or chazge
pursuant to a contract with an air carrier or foreign air carrier.
(ii) The Corporation will not include in its rate base by
means of depreciation, amortization, or any other method, that
portion of the capital costs of a project paid for by PFC Revenue
for the purpose of establishing a rate, fee or chazge pursuant to a
contract with an air carrier or foreign air carrier.
(iii) Notwithstanding the limitation provided in
subparagraph (ii), with respect to a project for terminal
development, gates and related azeas, or a facility occupied or used
by one or more air carriers or foreign air carriers on an exclusive or
preferential basis, the rates, fees and charges payable by such
carriers to the Corporation will be no less than the rates, fees, and
chazges paid by such carriers using similar facilities at the Airport
that were not financed by PFC Revenue.
4
~~~e - esoean - ooi szv9 oz
. _ (iv) The Corporation will provide the County with
copies of any rate studies which are used to set fees for the Project
and any new rate studies which may be proposed, from time to
time, to be used to set fees for the Project, prior to such use. At the
County's request, the Corporation will demonstrate how the rates
that aze or would be imposed under the studies comply with the
provisions of the PFC Rule relating to fees for PFC funded
facilities.
(h) In directing the planning, design, construction, and implementation
of the PFC projects, the County will direct that the PFC projects will be carried
out in accordance with FAA airport design, construction and equipment standazds
and specifications contained in advisory circulazs current on the date of project
approval. The Corporation will, at the direction of the County, carry out the
projects in accordance with such standazds and specifications, and shall otherwise
cooperate fully with the County to ensure compliance with such standazds and
specifications.
(i) The Corporation will take such actions as are necessary to enable
the County to maintain an accounting record for audit purposes for a period of
three years after completion of each PFC project at the Airport for which the
Corporation is using PFC Revenue. The Corporation will produce, maintain, and
provide to the County such records and documentary evidence necessary to meet
this requirement to the extent that such records or documentary evidence aze not
otherwise readily available to the County. All records will satisfy the
requirements of the PFC Rule and will contain documentary evidence for all items
of project costs.
(j) The Corporation will provide the County with all information and
documentation necessary for the County to comply with the reporting
requirements of Subpart D of the PFC Rule and such other reports as the
Administrator of the FAA may reasonably request, and the County will comply
with all such reporting requirements.
(k) The Corporation will cooperate fully with the County in promptly
curing any violation or potential violation of this Agreement, the provisions of the
PFC Rule, 49 U.S.C. 40117, or any other applicable federal law or in taking any
action or avoiding or ceasing to take any action as is necessary in order to avoid
termination of the PFC imposed by the County at the Airport. The County shall
take any action or avoid taking any action as is necessary in order to obtain and
maintain the FAA approval of the use of PFC Revenue generated at the Airport
for the Project.
Section 5. Ri t to Acquire. As further provided in Section 14.02 of the
Indenture, the County is hereby granted the right to obtain, at any time, fee title and exclusive
5
\\1DE - 65064!2 -0015299 02
possession of property (including the Project) financed by obligations of the Corporation
(including the Bonds) free from leaseholds, liens and encumbrances held or created by the
Corporation related to the Bonds (but subject to other Permitted Encumbrances, as defined in the
Indenture), and any additions to such property, by (1) paying to the Trustee or placing into
escrow an amount that will be sufficient to pay and defease such Bonds and other obligations,
(2) paying reasonable costs incident to the defeasance, and (3) complying with all other
requirements of Article XIV of the Indenture. The County, at any time before it pays and
defeases such obligations, shall not agree or otherwise be obligated to convey any interest in such
property to any person (including the United States of America or its agencies or
instrumentalities) for any period extending beyond or beginning after the County defeases such
obligations. In addition, the County shall not agree or otherwise be obligated to convey a fee
interest in such property to any person who was a user thereof (or a related person) before the
defeasance, within 90 days after the County defeases such obligations.
Section 6. ITnencumbered Title. If the County exercises its option under
Section 5, the Corporation shall immediately cancel all leaseholds and encumbrances on such
property, including all leases and management agreements (subject to certain Permitted
Encumbrances as aforesaid). Any lease, management contract, or similaz encumbrance on such
property will be considered immediately cancelled if the lessee, management company, or other
user vacates such property within a reasonable time, not to exceed 90 days, after the date the
County exercises its rights under Section 5.
Section 7. Default Rights. Upon the occurrence of an "Event of Default" as
defined in Section 10.01 of the Indenture, the Corporation shall cause the Trustee, within 15 days
of such occurrence, to provide notice to the County, and the County shall have the option to cure
such Event of Default within 90 days after receipt of such notice. As provided in Section 10.02
of the Indenture, amounts advanced by the County as a result of the exercise of this option to
cure monetary defaults hereunder and reasonable, direct expenses of the County advanced to cure
nonmonetazy defaults hereunder shall be deemed to be Indebtedness of the Corporation to the
County.
In addition to the foregoing and consistent with Article XIV of the Indenture, if
pursuant to Article X of the Indenture, the Trustee declazes the principal of any Bonds then
outstanding to be due and payable and any foreclosure proceeding or other action is commenced
under the Indenture or the Deed of Trust, as defined in the Indenture, which could lead to the sale
or other disposition of the property pledged thereunder, the County is hereby granted an
exclusive option to purchase all such property (including the Project), for the amount of the
outstanding Bonds and other indebtedness of the Corporation and accrued interest to the date of
default. The County shall have not less than 90 days from the date it is notified by the Trustee of
such action in which to both exercise the option and purchase the property. Nothing herein shall
be construed to create any obligation of the County to cure any Event of Default.
Section 8. Funds in Indenture. As required under Section 14.02 of the
Indenture, in the event the County exercises its options under Sections 5 or 7 hereof, the County
shall receive a credit towazds its defeasance or purchase costs in the amount of any fund or
6
\\\DE - 65064/2 - OOI5299 02
account balances_ held under the Indenture with the exception of (1) the Excess Investment
Earnings Fund, as defined in the Indenture, (2) an amount representing Operation and
Maintenance Expenses, as defined in the Indenture, required by the Corporation's current
operating budget through the date of defeasance or purchase, and (3) any amount needed to pay
additional interest on the Bonds or expenses in connection with such defeasance under
Section 14.02 of the Indenture.
Section 9. ~~. Unencumbered fee title (subject to certain Permitted
Encumbrances as aforesaid) to the Project and any additions thereto and exclusive possession
and use thereof will vest in the County without demand or further action on its part when all
obligations issued under the Indenture (including the Bonds) aze dischazged. For purposes of this
Section 9, such obligations will be dischazged when (a) cash is available at the place of payment
on the date that the obligations aze due (whether at maturity or upon call for redemption) and
(b) interest ceases to accrue on the obligations or (c) as otherwise provided in Article XIV of the
Indenture. All leases, management contracts and similar encumbrances on the Project shall
terminate upon dischazge of said obligations. Encumbrances that do not significantly interfere
with the enjoyment of such property, such as the Permitted Encumbrances, aze not considered
encumbrances for this Section.
Section 10. ~poration's Default. If any of the provisions of this Agreement
are violated by the Corporation and not promptly cured upon notice of such violation, the County
may terminate the PFC and the payment of PFCs to the Corporation, and any obligation of the
County to submit to the FAA additional applications to use PFC Revenue for the Project will not
be effective so long as the Corporation remains in non-compliance with this Agreement.
Section 11. Third Partv Beneficiaries. The Federal Aviation Administration
and the Trustee are third party beneficiaries to this Agreement to the extent that this Agreement
imposes obligations on the Corporation with respect to compliance with, or enabling the County
to comply with the requirements of applicable federal law. As third party beneficiaries, the
Federal Aviation Administration and the Trustee shall be entitled to seek judicial enforcement of
the provisions of this Agreement relating to such compliance.
Section 12. Indenture Rig ts. The Corporation hereby covenants and agrees
that the provisions of the Indenture granting any rights to the County shall not be amended or
modified without the consent of the County.
Section 13. Term. This Agreement shall terminate upon the vesting of title to
the Project in the County as herein provided.
Section 14. Burden on ProRerty. This Agreement is a burden upon and runs
with the property described in Exhibit A hereto and is binding upon the Corporation and upon
all persons or entities with any right, title or interest to such property or any part thereof. This
Agreement may be released therefrom in the same manner as the release of property under the
Deed of Trust executed in connection with the issuance of the Bonds.
7
\\\DE - 65064/2 -0015299 02
Section 15. Construction. In the .event of any conflict between the terms and
provisions of this Agreement and the terms and provisions of the Indenture, the terms and
provisions of the Indenture shall govern.
IN WITNESS WHEREOF, EAGLE COUNTY, COLORADO and EAGLE.
COUNTY AIR TERMINAL CORPORATION have caused this Agreement to be executed and
delivered by their duly authorized representatives as of the day and year first mentioned above.
EAGLE COUNTY, COLORADO
By:
Chairman, Boazd of County
Commissioners
[SEAL]
ATTEST
County Clerk and Recorder
EAGLE COUNTY AIR TERMINAL
CORPORATION
By
President
[SEAL]
ATTEST
Secretary
[Acknowledgments to be Added]
8
\\1DE - 65064/2 -0015299 02
EXHIBIT A
Eagle County Airport Terminal Facilities Project
PrQ,p~ Description
A parcel of land located in Tract 57, Section 3, TSS, R85W, of the 6th P.M., Eagle County,
Colorado according to the Independent Resurvey of said township and range as approved by the
U.S. Surveyor General's Office in Denver, Colorado on June 20, 1922. All bearings contained
herein being relative to a bearing of N00°21'00"E on the line from the Witness Corner for Angle
Point No. 3 of tract 57 (2.5" G.L.O. brass cap - 1918) to Angle Point No. 2 of tract 56 (3"
aluminum monument -P.L.S. 13901). Said parcel of land being more particularly described as
follows: -
Beginning at the corner common to tracts 55, 56, 58, and 59; Thence S30°25'29"E, 2,017.68 feet
to the N.E. corner of the new terminal lease and the true Point of Begi,~g; Thence
S81°50'29"W, 467.50 feet; Thence S08°09'31"E, 70.00 feet; Thence S81°50'29"W, 318.71 feet;
Thence S08°09'31 "E, 212.50 feet; Thence N81 °50'29"E, 403.85 feet; Thence 867° 1.1'43"E, 23.32
feet; Thence N81°50'29"E, 69.40 feet; Thence N54°29'46"E, 26.12 feet; Thence N81°50'29"E,
269.75 feet; Thence N08°09'31 "W, 282.50 feet to the Point of Beginning. Containing 4.619
acres (200,887 square feet) more or less.
A-1
\\\DE - 65064/2 -0015299.02
DRAFT
. ~i~,i9~
PROJECT CONSTRUCTION AND MANAGEMENT AGREEMENT
THIS AGREEMENT, entered into as of June 1, 1996, is by and between EAGLE
COUNTY AIR TERMINAL CORPORATION, a Colorado non-profit corporation (hereinafter
called "Owner") and EAGLE COUNTY, COLORADO, a body corporate and politic and
political subdivision of the State of Colorado (hereinafter called "Manager").
WHEREAS, the Owner is issuing approximately $ aggregate principal
amount of its Airport Terminal Project Revenue Bonds, Series 1996 (the "Bonds"), pursuant to a
Trust Indenture dated as of 3une 1, 1996 (the "Indenture") between the Owner and ,
as Trustee (the "Trustee"), in order to finance the cost of constructing and equipping certain
airport passenger terminal facilities at the Eagle County Regional Airport (the "Airport") (such
facilities, together with related equipment and paving and roadway facilities, are referred to
herein as the "Project"); and
WHEREAS, the Owner and the Manager have heretofore entered into a Project
Agreement dated as of June 1, 1996 (the "Project Agreement") regarding the Project and the
Airport; and
WHEREAS, pursuant to Sections 5.06 and 5.07 of the Indenture, the Owner covenants,
among other things, to cause the Project to be constructed in accordance with applicable laws and
the construction plans and to keep the Project in good repair and operating condition and under
competent and professional management at all times so long as the Bonds are outstanding; and
WHEREAS, in accordance with the Indenture, the Owner wishes to obtain the Manager's
services by hiring Manager pursuant to this Agreement to manage the construction, operation,
and maintenance of the Project, subject to the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and
other good and valuable consideration, the parties hereto agree as follows:
ARTICLE 1
Owner hereby contracts with Manager to manage the construction of the Project on behalf
of Owner and manage, operate and maintain the Project on behalf of Owner and, in connection
therewith, to provide services as required under Articles 5 and 6 of this Agreement.
ARTICLE 2
TERM
Subject to and upon the terms and conditions set forth herein, or in any exhibit or
addendum hereto, this Agreement shall commence on the date hereof and shall continue for a
period of years, subject, to the termination provisions in Article 13 hereof.
ARTICLE 3
RELATIONSHIP
All actions by Manager in performing its duties and providing services pursuant to this
Agreement shall be for the account of the Owner. Owner agrees to be responsible for all costs,
expenses and disbursements incurred by Manager, consistent with Section 7.2, in providing
management, operational and maintenance services hereunder, but not limited to, contracts for
cleaning, snow removal and security services and orders for supplies and equipment. Owner
agrees to indemnify and hold Manager harmless from and against any loss, cost, expense,
liability or claims of any kind or nature whatsoever arising from or in connection with Manager's
performance of its duties under this Agreement, except Manager's gross negligence or willful
misconduct.
ARTICLE 4
DELEGATION AND ASSIGNABILITY
Manager shall have the right to delegate its responsibilities under this Agreement to
employees of Manager or to engage independent contractors for performance of any part of the
services to be provided hereunder. Neither the Owner, nor the Manager, shall assign all or any
part of this Agreement without the prior written consent of the other parties to this Agreement.
ARTICLE 5
('ONSTRUCTION MANAGEMENT SERVICES O MANAGER
During the period from the date hereof to the Completion Date specified in the Indenture,
which period includes all anticipated construction phases of the Project, Manager shall perform
all construction management services required in order to ensure the timely and cost-effective
construction of the Project. In connection therewith the Manager shall perform the following
services:
(a) Coordinate, in consultation with Owner, the preparation by the architects and
engineers hired by Owner of all plans, specifications and drawings (and any amendments
thereto) for the Project, it being understood that all such plans, specifications and
drawings and amendments thereto shall be subject to Owner's approval.
-2-
\\\DE - 65064/2 -0015438 02
(b) Assist Owner in obtaining all necessary licenses and permits required to be
obtained for the construction of the Project and assist Owner in obtaining all other
necessary licenses and approvals required for the ownership and operation of the Project.
(c) Review and advise Owner as to all construction documents for the Project and
consult with Owner, and its architects, engineers and other consultants in connection
therewith.
(d) Consult with Owner in the development of a Project time schedule, together with
necessary revisions thereto as appropriate from time to time. Monitor and make oral
reports and written reports to Owner, and the Trustee, as Manager or Owner deems
reasonably necessary as to the progress of the construction of the Project with respect to
both scheduling and costs; comply with Section [5.19] of the Indenture regarding
monthly reports. Prepare a schedule for purchase of materials and equipment requiring
long lead time procurement and the purchase of materials or equipment which may be
purchased more economically in bulk.
(e) Cooperate with Owner, and its architects, engineers, general contractors and other
consultants for the Project in all respects, including but not limited to monitoring of the
construction of the Project and the progress thereof.
(fl Review with Owner and any architect or other appropriate consultants, any
suggested change orders required during construction of the Project.
(g) Schedule, prepaze agendas and attend meetings with the Owner, architects,
engineers, general contractors or other consultants, at such times and places as shall be
appropriate to render periodic oral and written status reports on the progress of any work;
send to Owner promptly after receipt and, in no event less often than monthly, copies of
all notices and other written communications received or sent by Manager on its own
behalf or on behalf of Owner to or from third parties, including, without limitations,
copies of all draw requests and other correspondence and materials relating to leasing and
concessions; and timely advise Owner of, and participate in, any discussions or
negotiations that may be conducted with a general contractor or any other consultants.
ARTICLE 6
~RnTFCT I`~ANAGEI~~ENT SERVICES OF MANASl~
6.1 Management ar~d Operation. The Manager shall manage, operate and maintain the
Project in a manner such that the Project remains suitable and efficient for use as a passenger
terminal as contemplated by and in accordance with the standards set out in the Indenture and the
Project Agreement, and in connection therewith, keep the Project in good repair and good
operating condition, making all repairs thereto and renewals and replacements thereof necessary
for such purpose.
-3-
\\\DE - 65064/2 -0015438 02
6.2 Fmn~. The Manager shall have in its employ at all times a sufficient number of
capable employees to enable it to properly and~e f Pro' ectnA reement e The nsalaries ofealr such
as provided herein and in the Indenture and t ~ g
employees shall be paid from the Operating Fund established under the Indenture consistent with
budget thereunder. All matters pertaining to the employment, supervision, compensation,
promotion and discharge of such employees are the responsibility of the Manager.
6.3 Bud e.~• Manager shall prepare and submit to Owner a proposed operating budget for
the management and operation of the Project for the forthcoming calendar year by October 15 of
each year. The Owner shall consider the proposed budget, consult with the Manager, and
prepare an "Operating Budget" for the forthcoming calendar year as provided for in Section 5.19
of the Indenture. The Operating Budget shall-serve as a guideline to the Manager in maintaining
and operating the Project, and Manager agrees, subject to the provisions of Article 7, to use
diligence and to employ all reasonable efforts in order that the actual cost of maintaining and
operating the Project shall not exceed the Operating Budget.
6.4 rc~llec+ion of Receivables. The M other fees and chargesawhi h maylbecomef due at
collect promptly all income from leases and
any time from any tenant or from others for services polle ceand dentifylany incomeodueeOwner
the Project or any portion thereof. Manager shall c
from miscellaneous services provided to the public including, but not limited to, coin operated
machines of all types (e.g., vending machines, pay telephones, baggage carts, etc.). All monies
so collected shall be deposited daily, or transferred to the Trustee daily for deposit, into the
Revenue Fund established under the Indenture.
Manager may, upon prior approval of Owner, initiate a suit or proceeding to enforce
collection of lease revenues or other income. In connection with such suits or proceedings, only
legal counsel designated by Owner shall be retained. All legal expenses incurred in bringing
such approved suit or proceeding shall be submitted to Owner for its approval.
6.5 eases. Subject to final Owner approval, Manager shall be responsible for all leases and
concessions at the Project and shall have the specific authority to negotiate all leases and rental
agreements and, in connection therewith, all amendments, renewals, extensions, modifications or
cancellations of existing leases and concessions and preparation of new leases, concession
agreements and other contracts with Project users consistent with guidelines approved by Owner
from time to time. Manager shall make eve whate~er services ay be reasonably pequired in
leases and tenants for the Project and perform
connection with the above mentioned negotiations.
6.6 Re it . Manager will cause the Project to be maintained and repaired in accordance
with State and local codes and federal regulations in a condition acceptable to Owner. Without
limiting the generality of the foregoing, Manager shall institute and supervise all ordinary and
extraordinary repairs and alterations, including the administration of a preventive maintenance
program for all mechanical, electrical and plumbing systems and equipment.
-4-
\\\DE - 6506412 -001 5438 02
6.7 Operating Activities. Manager shall institute and supervise all operational activities of
the Project, including but not limited to the following):
(a) Responsibility for, and supervision of, all required and needed security services;
(b) Responsibility for, and supervision of, all roadway and landscape maintenance,
including snow removal;
(c) Responsibility for, and supervision of, a preventive maintenance program;
(d) Responsibility for, and supervision of, any necessary maintenance or repairs to the
Project; and
(e) Any other activity incidental to the normal operation of an airport passenger
terminal of the type contemplated in the Indenture and the Project Agreement.
6.8 Compliance. Manager shall be responsible for operational compliance with all terms and
conditions relating to operation of the Project in the Indenture, the Deed of Trust and the Project
Agreement and shall cooperate with Owner in complying with the provisions of such documents.
However, Manager must be made aware in writing by Owner or Trustee of any conditions in any
future lease, mortgage, deed of trust or other security instrument affecting the Project. Manager
shall not be required to make any payment on account thereof and in no event shall the Manager
incur any liability to the holder of any such security instrument.
6.9 Payment of Exp n e . Manager shall pay all operating expenses from funds made
available therefor by the Owner from the Operating Fund established under the Indenture for
authorized expenditures
6.10 Payroll. Manager shall prepare and pay all payrolls from funds made available therefor
by the Owner from the Operating Fund and maintain comprehensive payroll records.
6.11 Rank Relationships. Manager shall handle all operational banking matters related to its
contractual responsibilities. Owner shall designate which bank(s) or financial institutions
Manager shall use in discharging this responsibility.
6.12 Proper Insp~i4II• Manager shall conduct periodic comprehensive inspections of the
Project and report periodically to the Owner in writing with any recommendation.
6.13 Maintenance of Records. Manager shall maintain complete and identifiable records and
files on all matters pertaining to the Project. Such records, and records and financial reports
pursuant to Section 6.18, shall be available to the Owner, Trustee or any holder of bonds under
the Indenture during business hours upon two (2) days written notice.
-5-
\\\DE - 65064/2 - 00 ~ 5438 02
6.14 Manager Av i i ' .Manager shall maintain a representative on-site at the Project at all
times when the Project is open and operating and shall maintain 24-hour availability for
emergencies.
6.1 ~ Owner ['~mmunications. Manager shall be available for communication with Owner and
will keep Owner advised of items affecting the Project.
6.16 Financial Reports.
(a) Manager, in the conduct of its responsibilities to Owner, shall maintain adequate
and separate books and records for the Project in accordance with generally accepted
accounting principles, which shall be supported by sufficient documentation to ascertain
that said entries are properly and accurately recorded. Such books and records shall be
maintained by Manager at Manager's office located on the Project. Manager shall
maintain such control over accounting and financial transactions as is reasonably required
to protect Owner's assets from theft, error or fraudulent activity. Manager also agrees to
prepare the statements and reports described in Section 5.19 of the Indenture.
(b) Manager shall adopt a Chart of Accounts (a system of classification of accounting
entries) as generally utilized in the airline industry for passenger terminals.
(c) The Manager shall furnish operating reports for the Project of all transactions
occurring from the first day of the prior month to the last day of the prior month. These
reports are to be received by Owner no later than 30 calendar days after the end of the
above described accounting period and must show all collections, delinquencies,
uncollectible items, vacancies, and other matters pertaining to the management,
operation, and maintenance of the Project during the month. The reports shall include a
comparison of monthly and year-to-date actual income and expense with the Operating
Budget. In addition, the Manager shall remit to the Trustee all unexpended funds which
it has [received from the Owner] and which are not being held for payment to third
parties as of the 25th of the reporting month. [The Manager's fee shall be payable by
Owner to Manager from funds on deposit in the Operating Fund, but only after payment
of all operating and maintenance expenses then due and payable, and after notification by
Manager of any unexpended funds in its possession; such notification by Manager shall
certify that all operating and maintenance expenses then due and payable have been paid].
(d) As additional support to the monthly financial statement, Manager shall make
available to the Owner, upon request, copies or originals of the following:
1. All bank statements, bank deposit slips and bank reconciliations;
2. Detailed cash receipts and disbursements records;
3. Detailed trial balances;
-6-
\\\DE - 65064/2 - 00 ~ 5438 02
4.. - Paid invoices;
5. Summaries of adjusting journal entries; and
6. Supporting documentation for payroll, payroll taxes and employee
benefits.
(e) Manager shall maintain necessary liaison with Owner's accountant.
6.17 Books. Cazds._Etc. All books, cazds, registers, receipts, documents, disks, tapes and any
other papers or electronic records connected with the operation of the Project aze the sole
property of Owner.
ARTICLE 7
MANAGER'S AUTHORITY
7.1 Manager's Authority. Manager's authority is expressly limited to the provisions provided
herein or as may be amended in writing from time to time by Owner and mutually agreed to and
accepted by Manager in writing.
7.2 On.~ grating B`__udeet. Owner's submission of the Operating Budget to the Trustee pursuant
to Section 5.19 of the Indenture shall constitute an authorization for Manager to expend money
make available by Owner from the Operating Fund under the Indenture in order to operate and
manage the Project, and Manager may do so without further approval as long as Manager does
not exceed the aggregate amount set for in the Operating Budget for any calendaz quazter. The
expenditures in excess of the Operating Budget which do not cumulatively vary more than 20%
from said approved budget in any fiscal quarter may be made upon filing with the Trustee a
requisition for additional operating expenses which further specifies the percentage variance
from the original approved operating budget. In accordance with the Indenture, a cumulative
budget variance of more than 20% either in actual or projected dollars in any month may not be
incurred without further consent as specified in the Indenture. In the event that an airport
consultant is called in as a result of expenditure variances above 20%, then the Airport
Consultant shall formulate a revised operating budget and approved variance, if any, therefrom,
as provided in the Indenture.
7.3 ~i 1 Improvements. Any capital expenditure must be specifically authorized by the
Owner. With respect to the purchase and installation of major items of new or replacement
equipment, Manager shall recommend that Owner purchase these items when Manager believes
such purchase to be necessary or desirable. Owner may arrange to purchase and install the same
itself or may authorize Manager to do so subject to prescribed supervision and specification
requirements and conditions. Unless Owner specifically waives such requirements, all capital
equipment, new or replacement equipment exceeding $5,000 shall be awarded on the basis of
competitive bidding when appropriate.
-7-
\\\DE - 65064/2 - OOI5438 02
7.4 ntra : -Manager may enter into contracts for maintaining, repairing or servicing the
Project, subject to the Operating Budget.
7.5 ('nrr~pliance with Laws. It is the intent of the Owner that the Project be operated in full
compliance with federal, state and municipal laws, ordinances, regulations and orders relative to
the use, operation, repair and maintenance of the Project (including without limitation the rules,
regulations and orders of the Federal Aviation Administration). Manager shall promptly
endeavor to remedy any violation or potential violation of any such law, ordinance, rule,
regulation or order which comes to its attention and shall promptly report any violation or
potential violation and proposed action to be taken to Owner.
7,6 ~pPnses Regarding Violations. Expenses incurred in remedying violations of the kind
referred to in Section 7.5 may be paid from the Operating Fund provided such expenses do not
exceed in any one instance. When more than such amount is required or if the violation is one
$5,000 for which the Owner might be subject to penalty, Manager shall transmit notice of such
violation to the Owner to assure that prompt arrangements may be made to remedy the violation.
7.7 Eme~encv. In case of emergency, Manager may make expenditures for repairs which
exceed budget or prior approvals from Owner without prior written approval if it is necessary to
prevent damage or injury. Owner shall be informed of any such expenditures within five
business days.
7,8 Stn~ct,~ral Changes. The Owner expressly withholds from the Manager any power or
authority to make any structural changes in any building or to make any other major alterations
or additions in or to any such building or equipment therein, or to incur any expense chargeable
to the Owner other than expenses related to exercising the express powers above vested in the
Manager without the prior written direction of the Owner.
7.9 ~petent Employ. Manager is specifically authorized and directed by Owner to
employ and supervise competent employees to adequately and reasonably maintain and protect
the Project. The personnel to be employed, the number of personnel and their compensation
shall be subject to the approval of the Owner as part of the Operating Budget. All expenses
incurred by Manager in employing such staff shall be paid by Owner as provided in
Section 11.3(c)
ARTICLE 8
8.1 Owner to Obtain Adequate Insurance. Owner will obtain in Owner's name and at
Owner's expense, and keep in force adequate insurance against physical damage (e.g., fire and
extended coverage endorsement, boiler and machinery, workmen's compensation insurance, etc.)
and insurance in amounts to be specified by Owner, and in conformity with the Indenture
insuring against liability for loss, business interruption, damage or injury to property or persons
-8-
\\\DE - 65064/2 -0015438 02
which may arise out of the occupancy, management, operation or maintenance of any of the
Project covered by this Agreement. Manager agrees:
(a) to notify Owner within 24 hours after Manager receives notice of any such loss,
damage or injury;
(b) to take no action (such as admission of liability) which might bar Owner from
obtaining any protection afforded by any policy Owner may hold or which might
prejudice Owner in its defense to a claim based on such loss, damage or injury; and
(c) that Owner shall have the exclusive right, at its option to conduct the defense to
any claim, demand or suit within limits prescribed by the policy or policies of insurance.
Nothing herein shall be construed as indemnifying the Manager against any intentional tort of the
Manager or its employees, contractors or agents or to indemnify the Manager against any act or
omission for which insurance protection or governmental immunity is not available; neither is
the foregoing intended to affect the general requirement of this Agreement that the Project shall
be managed, operated in a safe condition and in a proper and careful manner.
8.2 Information Furnished. The Manager shall furnish whatever information is requested by
Owner for the purpose of establishing the placement of insurance coverages and shall aid and
Cooperate in every reasonable way with respect to such insurance and any loss thereunder.
Owner shall include in its hazard policy covering the Project, all personal property, fixtures and
equipment located thereon. Manager shall make recommendations regarding the amounts and
types of insurance to be carried by the Owner but the Owner shall make the final determination
of the amounts of insurance, the types of coverage, the insuring companies and the agencies
writing such insurance.
8.3 Subcont_ractor's Insurance. Manager shall require that subcontractors brought onto the
Project have insurance coverage at the subcontractor's expense, in the following minimum
amount:
(a) Workmen's compensation -Statutory Amount
(b) General Liability
I. [$100,000 - $300,000] Bodily Injury
[$ 50,000] Property Damage, or
2. [$500,000] Combined Single Limit
Manager must obtain the Owner's permission to waive any of the above requirements.
The Manager shall obtain and keep on file a Certificate of Insurance which shows that the
subcontractor is so insured. Manager shall have Owner and Manager named as additional
insured before commencement of any work by the subcontractor.
-9-
~~~e - esoean - ooi sa3s oz
ARTICLE 9
OWNER'S RIGHT TO AUDIT
9.1 Owner's Right to Audit. Owner reserves the right for Owner's employees or others
appointed by Owner, to conduct examinations, without notification, of the books and records
maintained for Owner by Manager no matter where books and records are located. Owner also
reserves the right to perform any and all additional audit tests relating to Manager's activities,
either at the Project, or at any office of the Manager; provided such audit tests are related to those
activities performed by Manager for Owner.
9.2 correction of Discrepancies. Should-Owner's employees or appointees discover either
weaknesses in internal control or errors in record keeping, Manager shall correct such
discrepancies either upon discovery or within a reasonable period of time. Manager shall inform
Owner in writing, of the action taken to correct such audit discrepancies. Any and all such audits
conducted either by Owner's employees or appointees will be at the sole expense of Owner.
ARTICLE 10
BANK ACCOUNT
10.1 $,evenue Fund. The Manager shall deposit daily (or remit to the Trustee daily for
deposit) all rents, fees and other funds collected from the operation of the Project, including any
and all advance funds, in the Revenue Fund in the name of Eagle County Air Terminal
Corporation. From moneys made available by Owner from the Operating Fund, Manager shall
pay the operating expenses of the Project and any other payments relative to the Project as
required by the terms of this Agreement and as provided in the Operating Budget.
10.2 ~gg~egation of Accounts. Monies disbursed to Manager by Owner from the Operating
Fund but not expended shall be deposited in a separate account in a bank mutually acceptable to
the Owner and Manager. Such account shall be maintained separately from the Manager's other
accounts and funds. If requested, Owner shall be permitted access to such accounts through
additional signature cards.
ARTICLE 11
PAYMENT OF EXPENSES
11.1 F~pPnses Paid From Moneys Made Available to Manager from Operating Fund. The
following costs are to be paid directly from moneys made available to Manager from the
Operating Fund under the Indenture.
-10-
\\\DE - 65064/2 - 00154) S 02
(a) Any and all costs necessary to the management, operation, leasing and
maintenance of the Project which are covered within the approved budgetary guidelines
as outlined in Articles 6 and 7.
(b) Any other costs approved in writing by Owner to Manager.
11.2 ~xuenses Paid BX Ma_nager rough Its Own Account. Manager shall be under no
obligation to pay any costs from its own account.
11.3 F~penses Paid By Owner. The following costs are to be paid by Owner from the
Operating Fund upon submittal to Owner by Manager of a regular billing accompanied by
documentation which reasonably supports said billing:
(a) The cost of all reasonable travel expenses incurred by Manager and approved by
Owner, either through budgetary approval or by specific written approval of Owner,
including local automobile mileage except for costs associated with travel to the property
by Manager;
(b) The Owner shall pay for or reimburse Manager for the allocable salary, including
payroll taxes, workmen's compensation, fidelity bonds, and all employee benefits, of all
personnel utilized by Manager in the provision of services required hereunder or pursuant
hereto and any additional personnel approved or requested by Owner.
(c) Management fee pursuant to Article 19; and
(d) All capital expenditures referred to in Article 6 and 7 and all expenditures
authorized by Owner.
11.4 Office of Manager. The Manager reserves and is granted the right to maintain an office
in the Project of a size reasonably related to the operation of the Project. The Manager shall not
be required to pay for heat, light, or rent for the Project occupied as its of office.
ARTICLE 12
12.1 If at any time the gross income (or cash in the Operating Account) from the Project shall
not be sufficient to pay the bills and charges which may be incurred with respect to the Project,
the Manager shall notify Owner immediately upon first projection or awareness of a cash
shortage or pending cash shortage and Owner and Manager shall jointly determine payment
priority. Manager shall not be obligated to pay said expenses and charges from its own account.
After Manager has paid, to the extent of available gross income, all bills and charges based upon
the ordered priorities set jointly by Owner and Manager, Manager shall submit to Owner a
statement of all remaining unpaid bills. Owner shall immediately and without delay make all
-11-
\\\DE - 65064/2 -0015438 02
reasonable efforts-to provide sufficient monies to pay any unpaid expenses before they become
delinquent.
ARTICLE 13
TERMINATION
13.1 General Termination. This Agreement may be terminated by Manager or Owner at any
time after the initial year term upon 30 days prior written notice to the other party. Said
notice shall specify the effective date of termination.
13.2 Termination for Cause. Owner may terminate this contract upon 15 days written notice
with cause. Cause shall be defined as the occurrence of any of the following events:
(a) the filing of a voluntary petition in bankruptcy by the Manager or evidence that
the Manager is unable to pay its debts as they become due;
(b) (i) Manager fails to perform any of its services in the manner or within the
time required herein; or, (ii) Manager commits or permits a breach of or default in any of
its duties, liabilities or obligations hereunder; or
(c) Manager's termination pursuant to implementation of the recommendations of the
Airport Consultant in accordance with Section 5.19 or any other provision of the
Indenture.
13.3 Ma auger's Riaht to Terminate. From and after _, ,this Agreement
may be terminated by Manager at any time upon 90 days prior written notice to Owner after three
months of consecutive non-payment of Manager's management fee.
13.4 Termination for Bond Defeasance. This Agreement may be terminated by the Owner
upon 90 days written notice if Manager exercises its option to defease the Bonds in accordance
with Section 14.02 of the Indenture.
13.5 1~~anaoPr'S Right to Compensation• Final Accounting. If this Agreement is terminated by
any party as provided above, it is further agreed:
(a) Notwithstanding any other provision herein to the contrary, the Manager's right to
compensation shall cease as of the effective date set forth in the notice of termination,
except that Manager shall be entitled to all monies owed to Manager by Owner up to the
effective date of termination.
(b) That Manager's powers and authority under this Agreement shall cease and
terminate at the effective date set for the in the notice of termination and Manager shall in
no event make any expenditure in excess of that shown on the Operating Budget unless
authorized in writing by the Owner to be charged.
-12-
\\\DE - 65064/2 -0015438 02
(c) Final Accounting. Manager shall deliver to Owner the following with respect to
the Project:
(1) A final accounting after termination of this Agreement, reflecting the
balance of income and expenses on the Project as of the effective date of
termination to be delivered within 15 days after such termination.
(2) Any balance or monies of Owner held by Manager with respect to the
Project, shall be delivered immediately after such effective termination date and
thereafter promptly after same are received by Manager.
(3) All records, software, contracts, leases, receipts for deposits, unpaid bills
and other papers or documents which pertain to the Project also shall be delivered
immediately upon such effective termination date.
ARTICLE 14
Should any claims, demands, suits or other legal proceedings be made or instituted by
any person against the Owner which arise out of any of the matters relating to this Agreement,
the Manager shall give Owner all pertinent information and reasonable assistance in the defense
or other disposition thereof, at the sole expense of Owner.
Upon termination of this Agreement, Manager will give to Owner all books, cards,
registers, receipts, documents, tapes, disks and other information with respect to the Project and
the management thereof which Manager has in its possession and shall cooperate, as requested
by Owner, in the transition to a new Manager of the Project.
ARTICLE 15
MANAGER'S LIABILITY
15.1 Manager shall not in the performance of this Agreement, be liable to Owner or to any
other person for any act or omission of any agent or employee of Owner or Manager, or its
subsidiaries or affiliates, unless the same results from gross negligence or willful misconduct of
the Manager, its officers, employees or agents.
15.2 Notwithstanding any other provisions of this Agreement, in no event shall Owner make
any claim against Manager, or its affiliates or subsidiaries on account of any alleged errors of
judgment made in good faith in connection with the operation of the Project hereunder by
Manager or the performance of any advisory or technical services provided by or arranged by the
Manager.
-13-
\\\DE - 65064/2.0015438 02
15.3 Owner shall not object to any expenditures made by Manager in good faith in the course
of its management of the Project or in settlement of any claim arising out of the operation of the
Project unless such expenditure is specifically prohibited by this Agreement.
ARTICLE 16
RFPRF.SFNTATION
16.1 Owner hereby represents that in entering into this Agreement, Owner understands that no
guaranty is made or implied by Manager, as to the future financial success of the Project or the
ability of the Project to generate revenues sufficient to pay principal of and interest on the Bonds.
ARTICLE 17
17.1 Whenever in this Agreement the consent or approval of Manager or Owner is required,
such consent or approval shall not be unreasonably withheld.
ARTICLE 18
18.1 All notices, demands, consents and reports provided for in this Agreement shall be in
writing and shall be given to the appropriate Owner or Manager at the address set forth below or
at such other address as they may specify hereafter in writing:
MANAGER:
Eagle, CO
Attention: Airport Manager
OWNER: 500 Broadway
Eagle, CO
Attention: County Attorney
Such notice or other communication may be mailed by United States registered or certified mail,
return receipt requested, postage prepaid and may be deposited in a United States Post Office or a
depository for the receipt of mail regularly maintained by the post office. Such notices,
demands, consents and reports may also be delivered by hand, or by any other method or means
permitted by law.
-14-
\qDE - 65064/2 -0015438 02
ARTICLE 19
('OMPENSATION
19.1 By the 25th day of each month, the Manager shall receive remuneration for its services in
managing the Project for such month as follows: An amount equal to
per month (prorated for the first month) beginning [upon execution] of this Agreement.
ARTICLE 20
MISCELLANEOUS
20.1 Construction. The plural may include the singulaz and the singular may include the plural
and this Agreement shall be interpreted in this regard as the context may require.
20.2 Amendment. Except as otherwise herein provided, any and all amendments, additions or
deletions to this Agreement shall be null and void unless approved by the parties affected thereby
in writing.
20.3 Headines. All headings herein aze inserted only for convenience and ease of reference
and are not to be considered in the construction or interpretation of any provision of this
Agreement.
20.4 complete Agreement. This Agreement and Schedule A, attached hereto and made a part
hereof, supersede and take the place of any and all previous Management Agreements entered
into between the parties hereto.
20.5 Waiver. The waiver of any of the terms and conditions of this Agreement on any
Occasion or occasions shall not be deemed as waiver of such terms and conditions on any future
occasion.
20.6 Binding Nature. This Agreement shall be binding upon and inure to the benefit of
Owner, its successors and/or permitted assigns, and shall be binding upon and inure to the benefit
of Manager, and its permitted assigns.
20.7 State L.aw. This Agreement shall be construed, interpreted and applied in accordance
with and shall be governed by, the laws applicable in the State of Colorado.
20.8 Rebates. Manager agrees it will not collect or charge any undisclosed fee, rebate or
discount, and if any such should be received by Manager, these will be credited to the account of
the Owner.
20.9 Divisibility. In the event any Article or Section of this Agreement is deemed illegal or
unlawful, said Article or Section shall be struck from this Agreement and all other Articles and
Sections shall remain valid and in full effect.
-15-
\\\DE - 650648 -0015438 02
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year above written.
OWNER:
EAGLE COUNTY AIR TERMINAL
CORPORATION
Attest:
Secretary
By:
Vice President
MANAGER:
EAGLE COUNTY, COLORADO
Attest:
County Clerk and Recorder
-16-
By:
Chairman, Board of
County Commissioners
~~~ne - esaan - oo i sass oz