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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