▇▇▇▇▇▇▇▇▇ COUNTY AIRPORT - ▇▇▇▇▇▇▇ FIELD
FIXED BASE OPERATOR (FBO) AGREEMENT
AND HANGAR LEASE
THIS FBO AGREEMENT AND HANGAR LEASE (the "Agreement"), is entered into
as of this 16th, day of October, 2002, by and between:
The BOARD OF COUNTY COMMISSIONERS OF ▇▇▇▇▇▇▇▇▇ COUNTY, COLORADO, whose
principal address is ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, and its
successors and assigns (the "Board"); and
ENERGY & ENGINE TECHNOLOGY CORPORATION, whose principal address is ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Operator"), or its nominee.
RECITALS:
The Board currently owns and operates an airport known as the ▇▇▇▇▇▇▇▇▇
COUNTY AIRPORT- ▇▇▇▇▇▇▇ FIELD, located in ▇▇▇▇▇▇▇▇▇ County, Colorado (the
"Airport"). The Airport is a public airfield used for General Aviation
Activities and Board believes that it would be beneficial to the public and
users of the Airport and its facilities if certain fixed base operation
services are provided on the Airport premises.
The Board has the right and the obligation to regulate commercial and
aeronautical activities on the Airport under the laws of the State of
Colorado and the United States and under the regulations promulgated by the
Federal Aviation Administration, and therefore cannot grant exclusive rights
to any person or business entity.
The Operator is, among other things, in the business of offering
aviation services to the public and desires to be designated as a Fixed Base
Operator (FBO) located on the ▇▇▇▇▇▇▇▇▇ County Airport - ▇▇▇▇▇▇▇ Field.
The Operator, for its part, desires to be granted those rights,
privileges and uses as described in this Agreement to carry out its business
as a Fixed Base Operation and to lease and occupy that certain premises
known as Nick's Hangar, a description of which is attached hereto as Exhibit
A (the "Leased Premises").
NOW THEREFORE, for and in consideration of the mutual promises and
covenants contained in this Agreement, Board and Operator agree to be bound
by the terms of this Agreement as stated below.
AGREEMENT
SECTION 1 TERM PREVIOUS AGREEMENT AND ACCEPTANCE.
-------------------------------------------------
1.01 Term. The term of this Agreement shall be for a period of ten
(10) years, commencing on the Effective Date, as defined in Section 1.03
hereof, and ending on the 10th anniversary of the Effective Date ("Initial
Term") unless earlier terminated under the provisions contained in this
Agreement or any applicable terms as contained in any other agreements that
Operator may have with Board. In the event that Operator is not otherwise in
default under the terms of this Agreement, Operator shall have the right to
renew this agreement for an additional ten (10) year period upon receipt by
Board of written notice from Operator at least 90 days prior to the
expiration of the Initial Term. If Operator gives notice as required herein
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to Board of Operator's intent to renew this Agreement, then the subsequent
ten year term shall continue upon the same terms and conditions as contained
herein ("Renewal Period"), except that the rental amount shall be as
determined by the terms set forth in Section 2A. In the event that Operator
fails to provide proper notice to Board at least 90 days prior to the
expiration of the Initial Term then the terms and conditions of this
Agreement shall cease to be effective as of __________, 2012. At the end of
the term of this Agreement (or renewal term, if this Agreement is renewed),
the Operator shall have a right of first refusal in the event that the Board
seeks to enter into a Fixed Base Operator Agreement and Hangar Lease with
any third party, or any other arrangement to provide a Fixed Base of
Operation with a third party at the Airport, and the Board shall provide
Operator with twenty (20) days prior written notice of any attempt to enter
into such an arrangement with a third party, and Operator shall have the
right to enter into such arrangement upon the same terms as offered to such
third party, by so notifying the Board in writing within 10 business days of
receipt of such notice from the Board. In the event that Operator does not
provide the Board with timely notice of its intent to exercise its right of
first refusal, Operator's rights as described herein shall terminate and
Board shall be entitled to enter into any agreements with third parties to
provide Fixed Base Operations and/or a lease of the premises described herein
free from the terms of the right of first refusal.
1.02 Holding Over. If this Agreement is not extended and Operator
remains in possession of the premises after expiration of this Agreement
without any written renewal, Operator agrees that it will continue to be
bound by its obligations in this Agreement for an additional 120 days after
the expiration of this Agreement, provided, however, that Board may terminate
such month-to-month tenancy at any time during such 120 period, according to
any applicable Colorado state law.
1.03 Effective Date. This Agreement shall become effective (30) days
after Board has had possession of the Leased Premises delivered to it and
Board had provided written notice, and proof acceptable to Operator (an
opinion of counsel for the Board to such effect shall constitute acceptable
proof) that Board may legally deliver possession of the Leased Premises to
Operator ("Effective Date"). In the event that Board is unable to deliver
possession of the Leased Premises to Operator on or before March 31. 2003,
this Agreement shall cease and terminate and the parties shall have no
further rights or obligations hereunder. Upon the Effective Date, this
Agreement shall be the only FBO agreement presently in existence between
the parties. Coincident with the Effective Date of this Agreement, all
prior FBO agreements with Operator, oral or written, shall cease and
terminate without any further action on the part of either party hereto.
Operator shall have the right to cancel this Agreement upon 60 days
prior written notice on or before March 31, 2003 if the Effective Date has
not occurred.
SECTION 2. RIGHTS AND OBLIGATIONS OF OPERATOR
---------------------------------------------
The following Services shall or may be provided by the Operator, on a
nonexclusive basis, to the public and users of the Airport. Operator further
expressly warrants that it will perform the following services in a
professional, friendly, and courteous manner.
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2.01 Required Services. The Board authorizes Operator and Operator
agrees to provide the following services, 365 days per year during normal
business hours. Operator expressly warrants that it has the capabilities
and will also expressly warrant that it will perform the Services in
accordance with any applicable laws, licensing requirements, and
regulations of any governmental agency, including, but not limited to, the
Federal Aviation Administration, the U.S. Environmental Protection Agency
and the U.S. Occupational Safety and Health Agency, any applicable agency
of the State of Colorado, ordinances and codes of ▇▇▇▇▇▇▇▇▇ County,
regulations and policies of the Airport, and the Standards as stated in
this Agreement. Operator further acknowledges that it is solely responsible
for determining and ensuring its Services and personnel comply with these
requirements.
a. Ground Guidance: Operator, using its own personnel and equipment,
shall provide first class ground handling and guidance of transient
aircraft, as needed and as personnel are available, including "Follow Me"
service when necessary for large aircraft or unfamiliar pilots require
such. Operator shall direct aircraft to assure that aircraft are not
parked wholly or partially upon the Aircraft Operating Area ("AOA") of
the Airport.
b. Fueling of Aircraft: Operator shall have the right to sell and
deliver, and to provide aviation fuel and lubricants to all owners and
operators of aircraft based at or using the airport. During the term of
this Agreement, any and all other operators on the Airport shall be
required to meet the same requirements set forth herein with respect to
environmental standards and aircraft fueling.
c. Apron Servicing: Operator shall provide Apron servicing of, and
assistance to, aircraft, including itinerant parking, storage and tie-down
service, for both based and itinerant aircraft on or within facilities
leased to Operator or on aircraft parking areas designated by Board and as
set forth in Exhibit A to this Agreement.
d. Pilot Facilities: Operator shall supply lounge, cleaning and
maintenance of restrooms (supplied by the Board), passenger and pilot
facilities, rest area with existing TV and other commercially reasonable
and appropriate amenities. All interior furnishings shall be of commercially
reasonable and good quality and in good repair with no damage to upholstery,
other than normal wear and tear.
e. Telephone and Flight Planning Facilities: Operator shall provide
and be responsible for an interior public telephone and facilities for
flight planning. Operator agrees to post local information useful to pilots
concerning area hazards, approaches and departures and any information Board
or the FAA desires to disseminate to aircraft operators.
f. Unicom: Operator shall be licensed to operate, and shall operate,
an aeronautical advisory service ground station (commonly referred to as a
"UNICOM").
g. Pilot Supplies: Operator shall sell sectional and W.A.C. aviation
maps covering the territory within approximately three hundred miles of the
Airport, and other pilot supplies generally used by pilots for planning and
conducting of aerial flight.
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2.02 Authorized Services. In addition to the services required to be
provided by Operator pursuant to Section 2.01 above, Operator is authorized,
but not required, to provide, the following Services and to engage in the
following activities:
a. Aircraft Maintenance: Specialized and normal aircraft installation
or repair services (avionics, propellers, instruments, accessories, engines,
modifications, etc.).
b. Flight Services: Flight services, including but not limited to,
aircraft charter, air taxi operations, aerial sight-seeing, aerial
advertising, aerial photography, pipeline patrol, air ambulance and other
services normally provided by fixed based operators.
c. Aircraft Rentals: Provision of aircraft for lease/rental by FAA
certified pilots.
d. Aircraft Sales: The sale of new or used aircraft.
e. Flight Instruction: Flight training and rental aircraft for FAA
pilot ratings.
f. Ramp Service: Ramp service at the main terminal or other Airport
locations, including into-plane delivery of aircraft fuel, lubricants and
other related aviation products; and providing of ramp equipment, aircraft
cleaning and other services for persons or firms.
g. Catering: Of food and beverages for aircraft and concierge
services.
h. Heating & De-icing: Operator shall make available Airframe
de-icing service and may make available engine preheat service.
i. Oxygen and other Gases: Operator shall supply gaseous Oxygen
(suitable for human use) and nitrogen service.
j. Engine Starting: Operator shall provide aircraft engine starting
with external ground power equipment suitable for use with 12 and 28 Volt
aircraft systems.
k. Rental Vehicles: Transportation and Rental Vehicles: Operator
shall be permitted to provide a courtesy vehicle to its customers at no
charge. Operator shall use its best efforts to have one or more rental
vehicles available at the Airport during peak travel times. In the event
it becomes a financial burden to continue the rental vehicle business,
Operator agrees to provide Board justified documented evidence of the
financial burden that is accepted by Board and 30 days advance notice of
its intent to discontinue this service. Operator presently manages a
vehicle rental service for a franchise owner who is not obligated to
furnish a 30-day notice of termination of service. In the event that
the franchise owner terminates the service. Operator will not be held in
default, provided that the Board is given a copy of the written notice of
termination of service from the franchise owner. In any event, the
Operator will make a diligent effort to replace the terminated service.
2.03 Operating Standards. It is of primary importance that Operator
provide a full range of aviation services of high quality to both resident
and transient aviation users of the Airport commensurate with the standards
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of the industry. Operator agrees that, as an express condition of the Board
entering into this Agreement, Operator shall meet or exceed the following
Standards in providing the Services permitted under this Agreement.
a. Equipment: In addition to the obligations referred to elsewhere in
this Agreement, Operator agrees to furnish, at its own expense, ground
service equipment suitable for the various types of general aviation
aircraft reasonably expected at the Airport.
b. Employees: Operator shall provide at its sole expense, a
sufficient number of employees to reasonably provide effectively and
efficiently the services required or authorized in this Agreement.
Operator shall control the conduct. demeanor and appearance of its
employees, who shall be trained by Operator and who shall possess any
necessary licenses, certificates, qualifications or meet any other
statutorily mandated standards and or training as may be required by any
Federal, State or local agency law, rule or regulation in carrying out such
duties. It shall be the responsibility of Operator to maintain close
supervision over its employees to assure a high standard o1 service to
customers of Operator.
c. Line Service Personnel - Training: All line service personnel
shall have undergone all training and testing/licensing requirements of
all federal, state and local regulatory authorities having jurisdiction
with respect thereto.
d. Operating Hours: Operator shall be open for business from 8 00 a.m.
to 5:00 p.m., seven days a week, at a minimum, 365 days a year, except for
the period of June 15 through September 1, where the Operator shall be open
for business form 8:00 am. to 5:00 p.m. Sunday through Thursday, and 8:00
a.m. to 7:00 p.m., Friday and Saturday. Any changes reducing the minimum
hours of operation must have prior written approval of the Board. On-call
fuel service shall be available 24 hours a day per the Operator's customary
notice requirements. Hours of operation shall be reviewed annually by
Operator and Board with appropriate adjustments made as reasonably required
to handle traffic at the Airport.
e. Aviation Fuel - Handling and Storage: Subject to supply
interruptions beyond its control, Operator shall have available and provide
for the sale of aircraft fuel, including Jet A and 100LL AvGas. Operator
shall maintain the aviation Fuel Farm, provide sufficient mobile refueling
trucks and personnel adequately trained in aircraft fueling and fuel
handling safety procedures. The aviation fuel trucks and fuel facilities,
equipment and other facilities/areas (if any) shall be operated and
maintained by the Operator in full compliance with any EPA, Federal, State,
Fire District, and Board rules and regulations.
All costs of containing or clean-up of any fuel spillage, which is
caused by Operator, its employees, agents or representatives, shall be the
responsibility of Operator. Any fines, judgments or clean-up costs mandated
by the United States Environmental Protection Agency or any other agency
having legal jurisdiction, levied against Board, due to a spillage caused by
Operator, its employees, agents or representatives, shall be borne entirely
by Operator, to the extent of its responsibility. Operator shall indemnify
and hold Board harmless for any fine or clean up costs that Board may be
required to pay on account of Operator failing to meet its obligations under
this Section Operator reserves all rights to bring claims, cross-claims,
setoffs or counter-claims against the Board or any other third-party who
may be contributorily negligent in the event of any fuel spill.
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Operator shall be responsible for all maintenance and upkeep of any
part of the Fuel Farm facility owned by Operator, or under its control,
including the containment areas (to the extent it is controlling such
containment areas), and shall, at its sole cost and expense, make any and
all modifications, additions and/or alterations necessary to Operator's
property, including the containment areas (to the extent owned and
controlled by it), to meet the requirements or regulations of any
government agency having jurisdiction over it. Prior to making any such
modifications, additions and/or alterations, Operator shall present its
plan to Board for any such changes and obtain its written approval.
To the extent of any portion of the Fuel Farm owned by it, and under
its control, including the containment areas, Operator shall bear sole
responsibility for meeting all environmental rules, regulations and laws
promulgated by the United States Environmental Protection Agency, including,
but not limited to, 40 CFR Parts 280 & 281, as amended, or any other laws,
rules, or regulations promulgated by any lawful successor to said agency
having the responsibility for regulating bulk fuel storage facilities.
Operator shall provide, at its sole cost and expense, any insurance or
evidence of financial responsibility, in sufficient amounts, as may be
required by any agency having jurisdiction including the Board. Evidence of
insurance shall be supplied as stated in Section 7.02 below.
Operator shall be responsible, at its sole cost and expense, for
meeting all lawful requirements for tank testing, leak detection, electronic
monitoring and environmental remediation, for any and all contamination
caused by the leakage or spillage of aviation fuel, whether such
contamination shall occur on the ground surface or underground on Operator's
fuel storage facility. Operator shall provide the results of any
inspection/testing required with respect thereto by any regulatory agency of
competent jurisdiction or otherwise as required by any applicable law.
Notwithstanding anything to the contrary in this paragraph e., Operator
shall have no liability or responsibility whatsoever for any environmental
damage caused by leaks, spills, etc. arising out of the Fuel Farm and/or
containment area which occurred prior to its date of commencement of
operation thereof.
f. Storm Water and De-icing Fluid Recovery. Operator agrees to comply
with and cooperate in any de-icing fluid recovery program as may be
instituted upon the Airport in areas used by Operator hereunder. Operator
also agrees to be bound by any terms, conditions and/or requirements imposed
by any competent government agency issuing any permit to Board for the
discharge of waste water or storm water, and will comply with the
requirements of the Airport's Storm Water Management Plan as existing or as
may be amended from time to time, provided, however, that Operator shall not
be required to expend any material cost in installation of facilities or
equipment to so comply which shall be the responsibility of the Board.
g. Spillage Containment. Operator covenants to procure, and at all
times retain on hand, adequate supplies of inert absorbent materials and
appropriate EPA approved containers with which to contain any fuel or other
hazardous waste or toxic materials spilled upon aircraft ramps, from its
fueling trucks and other spills caused by it. Additionally, Operator
covenants to contain any such material(s) which are found or leak or are
spilled upon its leasehold or into the adjacent waterways, if emanating
from its leasehold, and to dispose of all materials so utilized for cleanup
in a lawful and environmentally safe manner. Operator also agrees to report
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to Board any spillage of aviation fuel or any other hazardous substance. Any
fines, judgments, or clean-up costs mandated by the United States
Environmental Protection Agency or other Government agency having
jurisdiction, levied against Board with respect to the subject matter of
this paragraph, due to the negligence of Operator, shall be borne entirely
by Operator.
h. Signs. Operator agrees that no signs, logos, or advertising
displays shall be painted on or erected in any manner upon the Airport
premises without the prior written approval of the Board (which may not be
unreasonably withheld or delayed). Signs identifying the Operator shall
conform to the reasonable standards established by Board, with respect to
type, size, design, condition and location.
i. Aviation Events. Operator shall obtain prior written approval of
Board (which shall not be unreasonably withheld or delayed) for the
sponsorship of any event which would have a major impact on airport
operations.
j. Undue Hazard. Operator may not engage in any operation, storage,
or service other than those specifically permitted or required herein,
which is hazardous to the Leased Premises or the health and safety of any
person.
k. Licenses and Permits. In the use and occupation of the Leased
Premises and the conduct of its business thereon, Operator, at its sole
cost and expense, shall be responsible for obtaining and keeping in effect
any required licenses and permits required in connection with Operator's
use of the Leased Premises and shall, in its use of the Leased Premises,
promptly comply with all present and future laws, ordinances, orders, rules,
regulations and requirements of all federal, state and municipal governments,
departments, commissions, boards and officers. Such shall not include the
obligation to alter or upgrade the Leased Premises but rather shall be
construed as a limitation on Operator's activities within the Leased
Premises. Operator shall not cause or allow any nuisance on the Leased
Premises. Board shall not cause or allow any nuisance on any portion of the
Leased Premises.
SECTION 2A. CREATION OF LEASEHOLD AND RENT.
-------------------------------------------
This Agreement also serves to create a leasehold in the Leased Premises
for the term hereof. During the initial five year term of this Agreement,
Operator shall pay $9,600.00 per year as rent for the Leased Premises,
payable $600.00 per month in advance for November-April and $1000.00 per
month in advance for May through October. Commencing with the sixth year of
this Agreement, on the anniversary date of execution of this Agreement, the
annual rental payment shall be automatically increased by eighteen percent
(18%), and shall be increased by eighteen percent (18%) in each subsequent
year until the end of the first ten year term, provided, however, that such
rental amount shall not exceed $22,000.00 in any year during the first ten
year term, including any and all CPI increases. All such rental payments
shall be due and payable on the ____ day of each month during the term of
this Agreement to the Board or its assigns at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇. On and after ___________, 2003, and annually thereafter, the
rental rate shall be adjusted based upon the total net percentage increase
or decrease in the Consumer Price Index (CPI) for the Denver area during the
prior year, or such other measure which may replace the CPI as published by
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the United States Department of Commerce. For purposes of determining the
rental amount for the Renewal Period, ninety days prior to the end of the
initial term, Board shall select an Appraiser and Operator shall select an
Appraiser to provide information from other airports in Colorado with regard
to reasonable rental rates for similar size and type facilities as the Leased
Premises. The Appraisers shall, within thirty days, obtain such information
from at least three other similar airports, of similar size and having
similar facilities as ▇▇▇▇▇▇▇ Field; if the two Appraisers agree on a rental
amount for the Renewal Term, they shall jointly issue a report to the Board
and the Operator of such rental amount which shall be the rental amount for
the Renewal Term. If the Appraisers cannot agree on the rental amount for the
Renewal Term, they shall issue separate reports of such amount to Board and
Operator and if the rental amounts contained in such reports are within ten
percent (10%), Board and Operator agree that they shall take the average of
the two reports, which amount shall then be the rental amount for the Renewal
Term. If the reports reflect a difference of more than ten percent (10%), the
Board and the Operator shall direct the Appraisers to select a third appraiser
who shall review the information of the two Appraisers and any independent
information such Appraiser deems necessary and the third Appraiser shall issue
a report of the reasonable rental amount for the Leased Premises for the
Renewal Term and the parties shall agree on such amount as the rental amount
for the Renewal Term; provided, however, that if the rental amount determined
by the third Appraiser is ten percent higher or lower than the amounts
determined by the parties' Appraisers, an average of the three rental amounts
shall be used to arrive at the rental amount for the Renewal Term. Each party
shall pay the fees and other costs of the appraiser appointed by that party,
and the fees and other costs of the third appraiser shall be shared equally
by both parties. CPI adjustments as described above shall apply each year of
the Renewal Term.
Notwithstanding any other terms to the contrary, in the event that the
Board is required to relocate the Leased Premises as set forth in Section
3.02 below, then within ninety days of the Operator taking possession of
the new premises, Board and Operator shall each appoint an Appraiser and
utilize the procedure described above in order to determine whether the
rental amount hereunder should be increased to reflect the added value of
the new premises. In the event that the Appraisers determine that the fair
market rental value of the new premises is greater than the fair market
rental amount then currently being charged to Operator (provided, however,
that the rent charged to Operator shall not be increased in the first five
years of this Agreement due to the terms of this Paragraph), then the
rental amount shall be increased by the percentage difference between the
old fair market rental amount and the fair market rental amount for the
new premises and such new rental amount shall take effect on the _______
day of the sixth month that the Operator occupies the new premises and
shall be the rental amount for the remainder of the Initial Term or the
Renewal Term, as the case may be, subject to appropriate CPI adjustments.
SECTION 2B. LEASE COVENANTS.
----------------------------
a. Maintenance. Board shall maintain and repair the exterior of the
Leased Premises, including, but not limited to, walls, roof, aircraft door,
exterior doors, gutters, canopies, windows, exterior utilities, concrete
floors, insulation, hangar electrical, plumbing and heating systems and all
structural components. Operator shall be responsible for repair of any
damage caused by it. Operator shall maintain and repair the interior
elements of the Leased Premises including but not limited to interior walls
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and partitions, and office electrical, lighting, plumbing and heating
systems and any other items constituting leasehold improvements. To the
extent the Board does not make any repair within 5 days of written notice
of the need for repair by Operator, then Operator may make the repair and
offset the reasonable cost thereof against any amounts due the Board
hereunder.
b. Use of Premises. Operator shall have the following rights and
privileges, subject to full compliance with applicable ▇▇▇▇▇▇▇▇▇ County
Regulations and Colorado Law, and all applicable FAA rules and regulations:
1. To maintain and operate shops in or upon the Leased Premises for
the purpose of providing full or limited repair, maintenance or overhauling
of aircraft or aircraft components, including storage and sale of aircraft
parts and accessories.
2. To provide short or long term storage for aircraft.
3. To develop and manufacture for sale aircraft and/or engine
modification systems.
4. Upon approval of the Board, which may not be unreasonably
withheld or delayed, to sublet to aviation-oriented persons and/or
companies in support of current businesses in the facility. Such subleases
must contain a notification to and agreement by suboperators that should
this lease be terminated for any reason whatsoever, the sublease will
terminate simultaneously and that the suboperators will promptly vacate
the premises.
5. Upon approval by the Board, which approval shall not be
unreasonably withheld or delayed, for such approval, to modify the interior
of the facility as required to maintain and promote Operator's business.
c. Peaceful Possession. As long as Operator is not in default under
the Agreement, it shall have the right to peaceably and quietly occupy and
enjoy the Leased Premises subject to the terms hereof.
d. Maintenance of Facility. Operator agrees to keep the premises in
a clean, neat, safe and orderly manner; free and clear of waste, rubbish
and debris, and to return the Leased Premises in as good condition as when
leased, reasonable wear and tear excepted.
e. Utilities. Utilities in the Leased Premises (not including outside
areas which remain the purview of the Board) are the sole responsibility of
Operator.
f. Other Business. Operator shall not engage in any other business in
or upon the Leased Premises, other than is permitted hereunder without the
Board's prior written consent.
g. Alteration or Modification. Operator, at its sole cost and expense,
shall have the right upon receipt of Board's consent (which consent shall
not be unreasonably withheld, conditioned or delayed and shall be provided
to Operator within five (5) days of receipt by Board of the request
therefor) to make Alterations to the Leased Premises in accordance with this
Section which are normal for the permitted uses, including, without
limitation, Alterations which require a Building Premises permit under any
applicable local, state, or federal building codes.
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All Alterations which require Board's consent shall be constructed
pursuant to plans and specifications approved by Board and all Alterations
shall be installed at Operator's sole cost and expense in compliance with
all applicable laws and covenants, conditions and restrictions of record,
except as otherwise specified herein. The work shall be done in a good and
workmanlike manner conforming in quality and design with the Leased Premises
existing as of the Effective Date. All Alterations made by or for Operator,
whether temporary or permanent in character, made either by Board or
Operator, shall be Operator's property until the expiration of this
Agreement (which Operator shall insure and have the right to depreciate).
Upon the expiration of the Term or earlier termination of the Agreement,
Operator shall surrender possession of the Leased Premises to Board in
substantially the same condition existing as of the Effective Date, ordinary
wear and tear excepted; provided, however that Operator shall have the right,
but not the obligation, to remove from the Leased Premises Operator's
Personal Property, and in the event Operator shall elect to remove all or
any portion of the Operator's Personal Property, Operator shall repair all
material damage to the Leased Premises caused by such removal (except
normal wear and tear). Except as expressly provided elsewhere in this
Agreement, all of Operator's Personal Property (including without
limitation, trade fixtures) shall be completely removed by Operator upon
the expiration of the Term. Any damage occasioned to the Leased Premises by
the removal shall be repaired by the Operator. This shall include, but not
be limited to, finish drywall repairs or replacement to any walls left
without finish drywall surface after Personal Property Removal, as well as
floor covering for bare floor areas, consistent in appearance and quality
with adjacent floor coverings, to the extent such areas originally contained
drywall, wall or floor covering to the same type and quality of the original.
Provided further, however, that any of Operator's Personal Property not so
removed shall, at the option of Board, automatically become the property of
Board. Thereafter, Board may retain or dispose of in any manner the
Operator's Personal Property not so removed, consistent with applicable
federal, Colorado or local law. Notwithstanding the foregoing, any
Alterations that are permanently attached to or affixed to the Leased
Premises or real property shall become the property of Board upon the
expiration of the Term or earlier termination of the Agreement.
h. Maintenance of Operator's Personal Property and Structures.
Operator shall maintain in workmanlike repair and condition, any
structures or personal property erected in or on the Leased Premises.
i. Flammable Materials. Operator agrees not to store any bulk
flammable materials within the Leased Premises nor to allow any person to
store such materials, except for fuels in a hangared aircraft. Operator
may store flammable fluids such as used by Operator only in quantities
appropriate to its use of same.
j. Right of Inspection. Upon 48 hours advance written notice to
Operator, Board may enter the Leased Premises during reasonable hours
accompanied by a representative of Operator for any purposes permitted
hereunder; provided, however, that (a) in the case of an emergency, no
prior notice of Board's entry will be required, nor will Board be required
to be accompanied by a representative of Operator to the extent that either
or both of such requirements would be reasonably impractical to satisfy,
but, in any such event, Board shall notify Operator of any such entry no
later than 24 hours after the occurrence of same, and (b) in no event
(including without limitation, any emergency) may Board enter any area
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within the Premises reasonably designated by Operator as a secured area
(collectively, "Secured Areas"). The above rights are subject to reasonable
security regulations of Operator, to limitations that such inspections may
not have a material adverse effect on Operator's business and to the
requirement that Board shall at all times act in a manner to cause the
least possible interference to Operator's business.
k. Removal of Personal Property. Operator shall be permitted, upon
termination of this Agreement, to remove all of its personal property from
the Leased Premises.
1. Further Improvement. The Board reserves the right to further
develop or improve the Leased Premises as it sees fit, so long as the making
of such improvements does not interfere with Operator's business in any
material respect.
m. Security. Operator may provide for any method of security that it
deems necessary and reasonable for the operation of the FBO. In the event
that Board or any federal or state agency or office requires that security
screening devices be utilized at ▇▇▇▇▇▇▇ Field, Operator shall not be
responsible for the cost of such screening devices or responsible for such
screening.
SECTION 3. BOARD'S OBLIGATIONS AND RESERVED RIGHTS OF BOARD.
------------------------------------------------------------
3.01 Non-Exclusive Right. This Agreement does not grant to Operator
the exclusive right to provide any or all of the services described in this
Article at any time during the term of this Agreement. Board reserves the
right, at its sole discretion, to grant to other qualified parties certain
rights and privileges upon the Airport which are identical in part or in
whole to those granted to Operator, on terms no more favorable than those
afforded to Operator. Nothing in this Agreement shall operate to prevent an
aircraft owner from providing any services to their own aircraft, including
the right to provide their own fuel, or perform maintenance on their own
aircraft, subject to Board's regulations and standards governing such
activities.
3.02 Maintenance, Repairs, Additions. Board has the sole and absolute
discretion to perform any maintenance, repairs and additions to any areas of
the Airport as it sees fit at the time and places it deems necessary or
desirable. Board shall attempt to ameliorate any adverse impact to Operator's
business if such actions can be accomplished without adversely impacting the
cost or schedule of the maintenance or repairs. However, nothing in this
section shall give the Operator any right to recover lost revenues or profits
caused by or on account of Board's maintenance, repairs or additions to the
Airport, unless the Board was negligent in its activities with respect
thereto, or except as otherwise provided under federal, state or local law
and regulation and except with respect to the potential movement of
Operator's operations as provided below in this paragraph. Board and Operator
acknowledge that the FAA is in the process of a two-year long Airport runway
repair and expansion project. To the extent that the FAA attempts or is
successful in requiring Operator to move its operations and/or hangar due to
condemnation proceedings or otherwise, Board (for itself and as the
representative agency in the State of Colorado) covenants to provide an
alternate suitable location (including improvements, construction of a new
Fuel Farm and fixtures) for Operator's business and activities as described
herein and any such relocation shall be performed per 49 C.F.R. 24, "Uniform
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Relocation and Real Property Assistance Act" ("Act") including, but not
limited to, construction of equivalent facilities, moving costs and lost
revenues, as may be permitted under the Act and as otherwise necessitated for
the Board to provide an alternate suitable (commercially reasonable) location
and facilities and Fuel Farm to the Leased Premises, provided, however, that
Board shall not be responsible for lost revenues of Operator. The Board
agrees to act with all due haste in any relocation efforts. The Board also
agrees that it shall be fully responsible for movement of the containment
area, reconstruction thereof and cleanup of any environmental issues existing
with respect to the former containment area, not otherwise the responsibility
of the Operator as set forth in Section 2.03.e., and/or its removal. The
Board acknowledges that if due to the relocation project, Operator is to be
moved more than one time, the requirements of this paragraph must be
fulfilled with respect to each and every move. Any new facility constructed
hereunder shall have "3 phase" electricity.
3.03 Aerial Approaches. Board reserves the right to take any action it
considers necessary to protect the aerial approaches of the Airport against
obstruction, together with the right to prevent Operator from erecting, or
permitting to be erected, any Leased Premises or other structures on or
adjacent to the Airport which, in the opinion of Board, would limit the
usefulness of the Airport or constitute a hazard to aircraft.
3.04 Snow Removal. Board shall provide snow removal for the Aircraft
Operation Areas, Apron areas and other Airport Areas in the manner and
priority as specified in Board's Snow Removal Plan. Board shall use its best
efforts to provide snow removal in a timely manner, however, it shall not be
responsible to Operator or to any other party for loss of business or flights
due to snow accumulation or its failure to remove snow from any area, for
whatever reason, including decisions as to the priority for snow removal from
different areas.
Board shall not be responsible for moving aircraft or vehicles to
accomplish snow removal. Operator shall use its best efforts to cooperate in
moving aircraft or vehicles to accommodate Board's snow removal efforts.
Operator shall be responsible for removing all accumulations of snow and
ice from walkways around the Leased Premises and structures located on the
Leased Premises, parking areas, around parked vehicles and aircraft which
could not be moved (and can be reasonably moved) and any other areas on the
Leased Premises which cannot be readily served by the Board's snow removal
equipment.
3.05 Provision of Areas on Airport. Board agrees to provide areas on
the Airport, at no charge, to Operator to maintain a Fuel Farm, a fuel
dispensing truck parking area, and a rental vehicle parking area. Said areas
will be determined and acceptable by both parties to be of adequate size for
the designated uses.
3.06 Application of Fees. Board agrees to apply fuel flow fees
equally to all FBOs at the Airport.
SECTION 4 FEES AND CHARGES
--------------------------
4.01 Fees & Charges. In consideration of the rights and privileges
granted by this Agreement, Operator agrees to pay to Board during the period
of this Agreement the following:
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a. Fuel Flowage Fees. Operator shall collect a Fuel Flowage Fee of
$.05 per gallon and pay to Board such Fuel Flowage Fee for all aviation fuels
sold by Operator, including fuels used by Operator in its own aviation
operations. Board reserves the right to increase the Fuel Flowage Fee, as
reasonable, upon sixty days written notice to Operator and thereafter
Operator shall collect the increased Fuel Flowage Fee. Operator shall remit
all fuel flowage fees due to the Board by the 10th of the following month in
which they were collected. Operator will furthermore deliver to Board
evidence of fuel deliveries received and sales made for auditing purposes
and as required for State reporting purposes, by the 10th of each following
month after such fuel deliveries were received and sales made.
b. Aircraft Parking Fees. Operator shall also collect all overnight
and monthly parking fees according to schedules that are set by Board,
and/or as may be modified by Board from time to time, and Operator shall
pay to Board Seventy percent (70%) of the Aircraft Parking fees collected
by the 10th of the month following collection, along with written evidence
of Aircraft Parking Fees for auditing purposes. In the event that Board
initiates other fees to be collected for use of Board property, the Operator
and the Board will negotiate an addendum to this Agreement for the
collection of such fees.
4.02 Delinquency Charge. A delinquency charge of one and one half per
cent (1 1/2%) per month of the amount due shall be added to any payments or
fees required in this Agreement which are rendered more than ten (10)
business days after such payments are due.
4.03 Place of Payment. All payments due Board from Operator shall be
paid by check or wire transfer and delivered to the place designated in
writing by Board from time to time. The initial place of payment is the
Board's address listed on the first page hereof.
4.04 Records. Operator shall provide and maintain accurate records
of retail fuel sales, aircraft overnight and monthly parking fees and other
fees collected (if applicable) derived under this Agreement for a period of
three (3) years from the date the record is made. Not more than once per
calendar quarter, Board, or its duly authorized representatives such as a
firm of public accountants, shall have the right, at all reasonable times
during normal business hours, to inspect and audit fuel sales and parking
fee records of Operator, and to verify Operator's fuel sales and parking
fees collected. The cost of the audit shall be borne by Board unless the
audit reflects a discrepancy of more than five percent (5%) in the reported
fuel sales or parking fees collected. If the discrepancy reflects under
reporting on the part of the Operator of five percent (5%) or more, then
Operator shall be responsible for the commercially reasonable cost (based
upon the cost of similar audits in the area) of the audit and the payment
to Board of any unpaid fees.
SECTION 5 CANCELLATION AND TERMINATION
--------------------------------------
5.01. Events of Default. Any of the following shall constitute an
"Event of Default" by Operator:
a. Operator fails to make due and punctual payment of any rents,
fees or charges payable hereunder within 10 days after it is due.
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b. Operator shall fail to keep, perform or observe any term, covenant
or condition of this Agreement, other than those covered by paragraph a. of
this Section; and
1. Board shall give Operator written notice of such failure; and
2. Operator:
(i). Does not cure the failure within 30 days of the effective
date of such notice; or
(ii). Does not present a plan for the cure of the failure which
is mutually accepted by Board and Operator within 30 days of the effective
date of such notice; or
(iii). Thereafter fails to pursue, and complete, the curing or
removal of such default within the time period specified in 5.01. b. (3)
(ii) above, or such other time period as may be mutually agreed upon
between Operator and Board.
c. The filing of any petition, proceeding or action by, for, or
against the Operator under any insolvency, bankruptcy or reorganization,
which is not dismissed within 90 days of filing.
d. Operator is prohibited by lawful authority from using the Airport
for a period exceeding 60 days because of an unsafe operating condition
existing at the Airport or in the surrounding airspace and the prohibition
resulted solely from acts or failure to act of Operator.
e. Operator voluntarily abandons the conduct of the fixed base
operations business at the Airport for a period of more than 10 business
days.
5.02 Termination by Board:
a. Upon or after the occurrence of any particular Event of Default
(and any time periods for notice have run), and the failure to cure such
Events of Default as provided herein, Board may terminate all of the
Operator's rights under this Agreement and such termination shall have the
effect of terminating the Operator's interest in the Leased Premises as well
as the Operator's rights to operate the Fixed Base Operation on the Leased
Premises. In such event Board shall be entitled to recover from Operator all
damages incurred by Board by reason of Operator's default including, but not
limited to, the cost of recovering possession of the Premises; expenses of
re-letting, including necessary renovation and alteration of the Premises;
reasonable attorneys' fees; that portion of any leasing commission paid by
Board and applicable to the unexpired term of this Agreement; and the worth
at the time of award of the unpaid rent and other charges and adjustments
which had been earned at the time of termination and the worth at the time
of award of the amount by which the unpaid rent and other charges and
adjustments which would have been earned after termination until the time
of award to the extent it exceeds the amount of such rental loss that the
Operator proves could have been reasonably avoided. The "worth at the time
of award" shall be determined by discounting such amount at 1% more than the
discount rate of the Federal Reserve Bank in Denver in effect at the time of
the award. Except as permitted by this Section 5.02, Board shall have no
rights to terminate this Agreement.
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b. Right of Entry. In the event of any default by Operator not cured
as provided herein, Board shall also have the right, with or without
terminating this Agreement, to enter the Leased Premises and remove all
persons and personal property from the Leased Premises, such property
being removed and stored in a public warehouse or elsewhere at
Operator's sole cost and expense. No removal by Board of any persons or
property in the Premises shall constitute an election to terminate this
Agreement. Such an election to terminate may only be made by Board in
writing. Board's right of entry shall include the right to remodel the
Premises and re-let the Premises. All reasonable costs incurred in such
entry and re-letting shall be paid by Operator. Rents collected by Board
from any other Operator who occupies the Leased Premises shall be offset
against the amounts owed to Board by Operator. Operator shall be
responsible for any amounts not recovered by Board from any other
Operator. Any payments made by Operator shall be credited to the amounts
owed by Operator in the sole order and discretion of Board, irrespective
of any designation or request by Operator. No entry by Board shall
prevent Board from later terminating this Agreement by written notice.
5.03 Termination by Operator. Upon 30 days prior written notice
(or sooner as otherwise stated herein), Operator may terminate this
Agreement (i) as provided in under Section 8.02, or (ii) if the Board
breaches its obligations under Section 3.02 hereof or if a court or
governmental agency of competent jurisdiction issues a final order
preventing Board from fulfilling its obligations hereunder or (iii) if
the Board otherwise denies Operator of the right to quiet enjoyment of
the Leased Premises or (iv) immediately if the Board conveys the Leased
Premises or otherwise assigns this Agreement to a third party which does
not comply with Section 7.03 hereof.
5.04 Court Costs and Fees: The prevailing party in any action to
interpret the terms of this Agreement or to enforce any of the rights,
obligations, or conditions of this Agreement shall collect all reasonable
costs and expenses incurred in such action, including, but not limited to,
attorney's fees.
SECTION 6 INSURANCE, NO LIABILITIES AND INDEMNIFICATION.
--------------------------------------------------------
6.01 Indemnity of Board for Damage, Injury or Death.
a. Operator shall protect, defend, indemnify and hold County of
▇▇▇▇▇▇▇▇▇ and its Commissioners, agents and employees, harmless from and
against any and all liabilities, losses, suits, claims, judgments, fines or
demands arising by reason of injury or death of any person or damage to any
property, including any injury or loss of third parties, including all
reasonable costs for investigation and defense thereof (including but not
limited to attorney fees, court costs, and expert witness fees), of any
nature whatsoever arising out of or incident to this Agreement and/or the
acts or omissions of Operator and its officers, agents, employees,
contractors, subcontractors, licensees, or invitees, regardless of where the
injury, death, or damage may occur. However, except for Aircraft, this
indemnity shall not apply where such injury, death or damage is the result
of an intentional act or gross negligence of the entity or of the person or
entity against whom recovery is claimed. Each party shall give the other
reasonable notice of any such claims or actions. Operator and Board shall
provide reasonable assistance and cooperation in defense of such claims.
Aircraft, whether owned by, leased by or bailed to Operator are expressly
75
subject to this Indemnity, except in case of loss due to the intentional act
or gross negligence of Board. Board and ▇▇▇▇▇▇▇▇▇ County shall indemnify and
hold Operator harmless of any damages or claims which Operator may sustain
as a result of an intentional act or gross negligence on the part of the
Board with respect to fuel spills on the Leased Premises.
b. Operator and Board shall each cause each insurance policy obtained
by it to provide that the insurance company waives all right of recovery by
way of subrogation against the other in connection with any damage covered
by any policy.
c. Board and Operator have provided in this Agreement that both
parties shall carry insurance adequate to cover claims covered by this
Indemnity and that this insurance coverage shall provide adequate recovery
for losses due to injury, death and property damage.
d. The provisions of this Section shall survive the expiration or early
termination of this Agreement and both parties' obligations hereunder shall
remain effective notwithstanding such termination or expiration with respect
to any loss, injury or damage enumerated within this section for which each
party has an obligation or indemnification, irrespective of whether the
notice or claim is initiated prior to or subsequent to expiration of this
Agreement or termination hereunder. Nothing herein shall be construed as
extending or modifying the statute of limitations pertaining to such claim
under applicable law.
6.02 Insurance Requirements: Operator and Board shall have the
following insurance obligations:
a. Liability Insurance. Operator shall obtain and keep in full force a
policy of comprehensive general liability and property damage insurance
under which Operator is named as the insured and Board and the County of
▇▇▇▇▇▇▇▇▇ are named as additional insured. The minimum limits of liability
shall be a combined single limit with respect to each occurrence of not less
than One Million Dollars ($1,000,000.00) and One Million Dollars
($1,000,000.00) aggregate. The policy shall, if such is available on a
commercially reasonable basis, contain a cross liability endorsement and
shall be primary coverage for Operator and Board for any liability arising
out of Operator's and Operator's Agents' use, occupancy or maintenance of
the Leased Premises.
b. Personal Property Insurance. Operator shall be responsible for
obtaining, at its own cost and expense, all personal property insurance for
Operator's personal property located upon the Leased Premises.
c. Real Property Insurance. Board shall maintain an "all risk"
property policy in an amount not less than one hundred percent (100%) of
the full replacement cost of the Leased Premises and to cover its
environmental indemnification obligations hereunder.
Operator shall secure and maintain for the entire term of this
Agreement such insurance policies as will protect itself, the Board (with
Board and the County of ▇▇▇▇▇▇▇▇▇ named as additional insured to the
extent permitted by law), and others as specified, from claims for bodily
injuries, death, personal injury or property damage arising from its
operations hereunder. Board shall also secure and maintain for the entire
term of this Agreement such insurance policies, from companies licensed in
the State of Colorado, as will protect itself and Operator, for all claims,
76
etc. that can arise from its operation of the Airport, and shall require
all others operating at the Airport to so also carry insurance. The
insurance coverage required in this section is in addition to any other
insurance or security that may be required under other provisions of this
Agreement. The provisions, types and limits of coverage shall be amended
from time to time to reflect the coverages and limits customarily provided
by and deemed necessary by standards of the insurance industry for insured
and additional named insured similar in size and business operations to
Board and Operator. In no case however, shall the required coverages or
limits be less than those required at the inception of this Agreement,
except by mutual agreement of the parties.
6.03 Certificates of Insurance: Operator shall provide Board,
concurrently upon taking possession of the Leased Premises, and thereafter
as Board may reasonably request, certificates issued by the insurance
companies which are providing coverage required to be maintained by the
Operator, which insurance companies are permitted to do business in the
State of Colorado. These Certificates of Insurance shall contain at a
minimum a provision that coverage afforded under the policies will not be
canceled or materially altered unless at least 30 calendar days prior
written notice by certified mail, return receipt requested (effective upon
proper mailing), has been sent to Operator and Board.
6.04 Board's Right to Insure. If Operator fails to provide the
Certificates of Insurance or other adequate assurance of the coverages
required under this Agreement, Board may procure such coverages and
Operator shall be required to pay Board for the cost Board has incurred in
obtaining such coverage. Operator understands and agrees that the cost to
Board of obtaining such coverage will probably be much higher than the
premiums that would be charged to Operator to obtain such coverage itself.
This remedy of Board for this default by Operator is separate and
independent of any other remedy available to Board under this Agreement
and that Board may or may not choose to exercise its right to secure
insurance.
SECTION 7. ASSIGNMENT OR CHANGE OF CONTROL.
-------------------------------------------
Board has entered into this Agreement with the understanding that the
Services to be provided under this Agreement are subject to the personal
supervision and management of persons who are experienced in the business
of Fixed Base Operations and duly qualified under any applicable
governmental regulations. Therefore, Board reserves the right to review
and approve any changes in control in Operator (i.e.: 51% or more of its
equity interests are sold) to ensure that the public interest in
availability of the Services is met. Accordingly, Board and Operator
agree to the following limitations:
7.01 Assignment. Operator shall not, at any time, assign, transfer,
convey, sublet, mortgage, pledge, or encumber its interest under this
Agreement to any party without prior written approval of Board, such
approval not to be unreasonably withheld, except with respect to a
financing by Operations for operation of the Fixed Base Operator. Any
attempted assignment, transfer, or sub-letting in violation of the
provisions hereof shall be null and void and a default hereunder. No
assignment, transfer, conveyance, or sub-lease by Operator shall relieve
Operator of its primary responsibility for payment and performance of all
77
other obligations provided in this Agreement, without specific written
consent by Board to such relief.
7.02 Merger or Change of Control. Any transfer of 51% or more in
equity interest ownership of Operator (other than to an investor financing
Operator's FBO operation, provided, however, that Operator shall maintain
operational control and Operator shall provide documentation to Board to
ensure that Operator maintains such control) must have prior written
approval of the Board. Board may request assurances of the capability of
the new owner to assume the responsibilities of the Operator hereunder,
including, but not limited to, imposition of net worth covenants and
demonstration of licenses required under governmental regulations.
7.03 Change in Ownership of Airport. Operator acknowledges that
there may be change in ownership of the Airport to another governmental or
quasi-governmental entity controlled by the Board of ▇▇▇▇▇▇▇▇▇ County, as
may be deemed necessary by the Board of ▇▇▇▇▇▇▇▇▇ County as the Airport
Sponsor, or may be required as per Federal requirements and/or assurances
made to the Federal Government; and Operator agrees to such change so long
as the new Owner of the Airport agrees to be bound by the terms of this
Agreement, and the County of ▇▇▇▇▇▇▇▇▇, as the Airport Sponsor, agrees
that it shall not effect such change in ownership unless the proposed new
Owner, agrees in writing, before transfer of title, to be bound by the
terms of this Agreement.
7.04 Bankruptcy. Section 7.01 shall not apply to any valid assumption
or assignment of this Agreement by a trustee, or the Operator as a debtor
in possession under any Section of the Bankruptcy Code. However, any such
assumption or assignment shall include adequate assurance of future
performance as provided by any Section of the Bankruptcy Code, including,
but not be limited to the following assurances:
a. Adequate assurance of the reliability of the proposed source for
any payments due under this Agreement upon assumption or assignment of
this Agreement;
b. Adequate assurance that all other considerations due under this
Agreement shall be forthcoming after the assumption or assignment of this
Agreement;
c. Adequate assurances that the experience, licenses and
qualifications of the persons supervising the providing of the Services
required hereunder are adequate to ensure compliance with all governmental
regulations and requirements concerning such services.
7.05 Consent by Board to any type of transfer provided for by this
Article shall not in any way be construed to relieve Operator from
obtaining further consent for any subsequent transfer or assignment of
any nature whatsoever.
SECTION 8. DAMAGE OR DESTRUCTION TO LEASED PREMISES
---------------------------------------------------
8.01 Board's Obligation to Rebuild. If the Leased Premises is
damaged or destroyed, Board shall promptly and diligently repair the
Leased Premises unless it has the right to terminate this Agreement as
provided in 8.02 below and it elects to so terminate.
78
8.02 Right to Terminate. Board or Operator shall have the right to
terminate this Agreement following damage to the extent of 50% or more of
then present value of the Leased Premises or destruction of the Leased
Premises if any of the following occurs: (i) the Leased Premises cannot,
with reasonable diligence, be fully repaired by Board within 180 days
after the date of the damage or destruction; (ii) the Leased Premises
cannot be safely repaired because of the presence of hazardous factors,
including, but not limited to, earthquake faults, radiation, chemical
waste or other similar dangers; (iii) the Leased Premises are destroyed
or damaged during the last 12 months of the Renewal Term of this
Agreement; or (iv) insurance proceeds are not available to the Board to
pay for 90% of the cost to fully repair the damaged Leased Premises.
"Fully Repair" shall mean to restore the premises to the condition it was
in just prior to the damage or destruction and as may be determined in
good faith by the Board and is commercially reasonable.
If Board or Operator elect to terminate this Agreement, the
terminating party shall give the non-terminating party written notice of
its election to terminate within 30 days after it has knowledge of such
damage or destruction, and this Agreement shall terminate 15 days after the
date non-terminating party receives such notice. If neither party elects to
terminate the Agreement, Board shall, promptly following the date of such
damage or destruction, commence the process of obtaining necessary permits
and approvals, and shall commence repair of the Leased Premises as soon as
practicable and thereafter prosecute the same diligently to completion, in
which event this Agreement will continue in full force and effect. However,
during the period of such repair Monthly Rent shall ▇▇▇▇▇ prorata to the
percentage of the Leased Premises which are useable.
If this Agreement is terminated, Operator shall be entitled to receive
and retain all the insurance proceeds resulting from such damage to
Operator's Personal Property. Further in the event of such termination,
Board shall be entitled to any insurance proceeds from Board owned policies
as well as any insurance proceeds from insurance policies the Operator is
required pursuant to the terms of this Agreement to the extent that such
insurance proceeds are for damage to the Leased Premises other than
Operator's Personal Property.
8.03 Exclusive Remedy. This Section contains Operator's sole and
exclusive remedies in the event of damage or destruction to the Premises
and the proper exercise of the election to terminate by the Board according
to the terms set forth hereinabove.
8.04 Release Upon Termination. Upon any termination of this Agreement
pursuant to this Section, Operator and Board hereby agree to Release each
other from any and all obligations and liabilities with respect to this
Agreement except such obligations and liabilities which arise or accrue
prior to such termination.
SECTION 9. GENERAL CONDITIONS
-----------------------------
9.01 Amendments and Changes. Any amendments, changes or modifications
to this Agreement or any of its Exhibits must be in writing and executed by
authorized agents or representatives of Board and Operator.
9.02 Severability and Governmental Action. If one or more
clauses, sections, or provisions of this Agreement shall be held to be
79
unlawful, invalid, or unenforceable, or in conflict with an applicable law,
regulation or cognizant governmental unit or agency, it is agreed that the
remainder of the Agreement shall remain in full force and effect as if such
invalid or inconsistent provision was not included. Board and Operator agree
to negotiate a change in this Agreement to incorporate the intent of the
invalid or inconsistent provision.
9.03 Waiver. No delay or omission in the exercise of any right or
remedy by either party hereunder shall be deemed to waive or render
unnecessary such party's consent to or approval of any subsequent act by
the other party. Any waiver hereunder must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of
the Agreement.
9.04 Force Majeure. Neither party shall be in violation of this
Agreement by reason of failure to perform any of its obligations by reason
of strikes, boycotts, labor disputes, embargoes, unforeseen shortages of
materials, acts of God, acts of public enemy, acts of public authority,
substantial non-temporary flight restrictions, extraordinarily unforeseeable
weather conditions, riots, rebellion, accidents, sabotage or any other
circumstances for which it is not responsible and which are not within its
control. Upon the cessation or removal of the act or condition giving rise
to the excuse of any obligation under this Agreement, the party so excused
from its obligation shall perform as required under this Agreement.
9.05 Applicable Laws. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado and any
applicable provisions of the federal laws of the United States and
regulations issued thereunder. Venue is agreed to be exclusively in the
courts of ▇▇▇▇▇▇▇▇▇ County, Colorado or the U.S. District Court for the
District of Colorado.
9.06 Binding Upon Successors. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
heirs, successors and assigns.
9.07 Vendors and Suppliers. It is expressly understood and agreed that
in providing required and authorized services pursuant to this Agreement,
Operator shall have the right to choose, in its sole discretion, its vendors
and suppliers.
9.08 Nothing in this Agreement shall require Operator to pay any fine
or forego dispute of any assessment or claim where Operator has a good faith
legal defense to such assessment and it is pursuing the defense in the
appropriate administrative procedure, hearing, forum or court of law.
9.09 Public Input and Grievance. The parties both recognize that the
Airport and the Services to be provided on the Airport constitute an
important part of the economy and public interest of ▇▇▇▇▇▇▇▇▇ County and
the surrounding areas of southwestern Colorado. Board therefore has the
obligation to monitor all the uses of the Airport, including the Services
being provided by the Operator under this Agreement. In the event of public
complaints which Board agrees are valid and reoccurring, Board shall send a
written notice to Operator detailing the nature of the complaints and the
requirement that Operator correct the activity, behavior, etc. giving rise to
the Complaints. In the event that such complaints continue, such complaints
and/or any operational deficiencies shall be deemed an event of default and
shall be subject to the provisions of Section 5.01.
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9.10 Subordination to Agreements and Law. Board and Operator expressly
agree and understand that due to the funding and providing of services by
governmental entities, Board has entered into certain agreements and accepted
the obligations under laws and governmental regulations, ordinances, codes
and policies. Any Operator or any other person or entity who provides
services on the Airport or conducts operations on the Airport shall be
subject to the requirements of these agreements and obligations and the
conditions of all written Agreements, Contracts, Permits, etc. shall be
subordinate to these obligations. Therefore, Board, as an express or implied
covenant of these prior agreements, is required to secure the acknowledgment
of Operator that this Agreement and the rights of Operator are subject and
subordinate to these prior agreements and the laws and regulations, and any
amendments thereto, imposed upon Board because of its entry into these prior
agreements. Specifically this Agreement is subject to the following
agreements or obligations:
a. U. S. Law and Regulations. The Airport and its facilities were
funded in part by the U.S. government and that this places certain obligations
on both Board and Operator under existing law and regulations. Operator, as
an Operator of Board is also subject to certain obligations and
responsibilities, which Board is required to pass through to the Operator.
Therefore, Board and Operator acknowledge that this Agreement and the
tenancy created by it are subject and subordinate to the provisions of any
agreements heretofore or hereafter made between the Board and the United
States relative to the operation or maintenance of the Airport, the
execution of which has been required as a condition precedent to the transfer
of federal rights or property to Board for Airport purposes, or the
expenditure of federal funds for the improvement or development of the
Airport, including the expenditure of federal funds for the development of
the Airport in accordance with the provisions of the Federal Aviation Act of
1958, as it has been amended from time to time. Board covenants that it has
no existing agreements with the United States in conflict with the express
provisions hereof.
▇. ▇▇▇▇ Enabling Legislation. This Agreement and all rights of Operator
hereunder are expressly subordinated and subject to the lien and provisions
of any pledge, transfer, hypothecation, or assignment made (at any time) by
Board to secure bond financing. This Agreement is subject and subordinate to
the terms, covenants and conditions of present and future enabling
legislation authorizing the issuance of Bonds by Board.
c. Required Provisions of Law or Regulations. The parties incorporate
herein by this reference all provisions lawfully required to be contained
herein by any governmental body or agency.
d. No Discrimination by Race, Creed or National Origin. Operator, for
itself, its personal representatives, successors in interest, and assigns,
as part of the consideration hereof, does hereby covenant and agree that:
1. no person on the grounds of race, color, or national origin shall
be excluded from participation, denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities; and
2. that the Operator shall use the premises in compliance with all
other requirements imposed pursuant to Title 49, Code of Federal Regulations,
Department of Transportation, Subtitle A, Office of the Secretary, Part 21,
Nondiscrimination in Federally Assisted Programs of the Department of
81
Transportation, Effectuation of Title VI of the Civil Rights Act of 1964,
and as said regulations may be amended.
e. No Economic Discrimination. Operator shall furnish its
accommodations and/or services on a fair, equal, and not unjustly
discriminatory basis to all users thereof, and it shall charge fair,
reasonable, and not unjustly discriminatory prices for each unit of service.
f. No Exclusive Rights. It is understood and agreed that nothing
herein contained shall be construed to grant or authorize the granting of an
exclusive right within the meaning of Section 308 (a) of the Federal Aviation
Act of 1958 (49 U.S.C. 1349).
g. This Agreement and all the provisions hereof shall be subject to
whatever right the United States Government now has, or in the future may have
or acquire, affecting the control, operation, regulation, and taking over of
said Airport for the exclusive or nonexclusive use of the Airport by the
United States during the time of war or national emergency.
h. Drug-free Workplace. Operator certifies that it will provide a
drug-free workplace in compliance with the federal Drug-Free Workplace Act of
1988 as amended.
9.11 Notices. All notices from Operator to the Board required or
permitted by any provisions of this Agreement, shall be directed to the Board
of County Commissioners of ▇▇▇▇▇▇▇▇▇ County, Colorado at ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, with a copy to the ▇▇▇▇▇▇▇▇▇ County Attorney, ▇▇▇▇
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. All notices from
Board to the Operator required or permitted by any provisions of this
Agreement, shall be directed to Operator's General Counsel at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Either parry may, at any time or from time to time,
designate in writing a substitute address for that above set forth, and
thereafter notices shall be directed to such substitute address. Any notice
required hereunder shall be in writing and shall be given and be effective
upon (1) hand delivery to any party hereto or (2) mailing such notice by
first-class U.S. mail, addressed to any party at the address stated herein.
9.12 Headings. The headings of the several articles and sections of
this Agreement are inserted only as a matter of convenience and for reference.
The headings in no way define, limit, or describe the scope or intent of any
provisions of this Agreement and shall not be construed to affect these
provisions or their interpretation or construction.
9.13 Further Assurances. Each party shall take all actions and execute
and deliver all documents necessary to carry out the intentions of this
Agreement.
9.14 Incorporation of Exhibits. Exhibits, and any amendments to the
Exhibits as may be agreed from time to time, are specifically made a part of
this Agreement.
9.15 Entire Agreement. The foregoing, together with the Exhibits to
this Agreement and any other documents incorporated into the Agreement by
reference, constitute the entire agreement between the parties and supersedes
all other agreements or representations of any nature, whether oral or
written made by or between Board and Operator. Board and Operator understand
and agree that they are relying only upon the written representations,
covenants and promises contained in this Agreement and that they have
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consulted legal counsel as to the nature and extent of their obligations
contained herein.
9.16 Construction of Agreement. The parties participated jointly in the
negotiation of this Agreement and each party has had the opportunity to obtain
the advice of legal counsel and to review and comment upon and redraft this
Agreement. Accordingly, it is agreed that no rule of construction shall apply
against any party or in favor of any parry, and any uncertainty or ambiguity
shall not be interpreted against any one party and in favor of the other.
9.17 Authority. The undersigned affirm that they have the authority
to enter into this Agreement and all necessary approvals from any partners,
shareholders, officers, directors, etc. have been obtained.
9.18 Definitions. The following terms shall have the following
meanings in this Agreement:
a. "Alterations" shall mean any alternations, decorations, additions
or improvements made in, on or about the Premises after the Effective Date,
including, but not limited to, lighting, HVAC and electrical fixtures,
pipes and conduits, partitioning, wall coverings, cabinetry, carpeting
and/or other floor covering, ceiling tile, fixtures and carpentry
installations.
b. "HVAC" shall mean the heating, ventilating and air-conditioning
system serving the Leased Premises.
c. "Property" shall mean the entire property and building of which
the Leased Premises are a part.
d. "Tenant's Personal Property" or "Personal Property" shall mean
Operator's removable trade fixtures, removable Leasehold improvements,
furniture, equipment and other personal property in or upon the Leased
Premises.
IN WITNESS WHEREOF, the Board and Operator, by their duly authorized
officers or legal representative, have executed this Agreement as of the
day and year stated next to their signature, to evidence their complete
understanding and intent to be bound to the terms stated in this Agreement
as of the date stated at the beginning of this Agreement.
ENERGY & ENGINE TECHNOLOGY CORPORATION
/s/ Will ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Its Chairman and President
Dated 10/15/02
ATTEST:
/s/ Jolie ▇. ▇▇▇▇
By: Jolie ▇. ▇▇▇▇
Its Secretary
83
BOARD OF COUNTY COMMISSIONERS
OF ▇▇▇▇▇▇▇▇▇ COUNTY, COLORADO
/s/ Wm. M. ▇▇▇▇▇▇
▇▇. ▇. ▇▇▇▇▇▇, Chairman
Date Oct 15, 2002
Approve as to legal form:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ County Attorney
EXHIBIT "A"
Subject property is a 150 by 100 (15,000 square feet) aircraft hangar/
airport fixed-based operations building commonly referred to as "Nick's
Hangar", that is located, in approximately equal dimensions, on Parcels
1(a) and 2 of the ▇▇▇▇▇▇▇▇▇ County Airport - ▇▇▇▇▇▇▇ Field. Said parcels
are lying and being in the Northeast Quarter (NE 1/4) and in the Northwest
Quarter (NW 1/4) of Section Sixteen (16), Township Thirty-five (35) North,
Range Two (2) West, N.M.P.M. and specifically includes the area described
as the "Fuel Farm", being a 70 foot by 125 foot tract of land located on
the northwestern boundary of Parcel 1, Tract B, of the ▇▇▇▇▇▇▇▇▇ County
Airport, encompassing an area of 8,750 square feet, more or less.
84
AMENDMENT TO FIXED BASE OPERATOR
(FBO) AGREEMENT AND HANGAR LEASE
This AMENDMENT ("Amendment") TO FIXED BASE OPERATOR (FBO) AGREEMENT AND
HANGAR LEASE (FBO Agreement"), made and entered into this 31 S` day of
October, 2002, by and between the BOARD OF COUNTY COMMISSIONERS OF ▇▇▇▇▇▇▇▇▇
COUNTY, COLORADO ("Board") and ENERGY & ENGINE TECHNOLOGY CORPORATION
("Operator" or "EENT"), as follows:
WHEREAS, Board and EENT previously have entered into the FBO Agreement
dated October 16, 2002; and
WHEREAS, Board has entered into an agreement ("Purchase Agreement")
with the current operator of the FBO at ▇▇▇▇▇▇▇ Field in ▇▇▇▇▇▇▇▇▇ County,
Colorado for the purchase of certain Business Assets as such term is
further defined in such Agreement attached hereto and incorporated herein
by this reference as Exhibit "A" ("Business Assets") and EENT is made a
third-party beneficiary of such Agreement; and
WHEREAS, Board and EENT have agreed to certain changes and modifications
to the FBO Agreement to provide for the purchase of the Business Assets from
the Board and the parties wish to memorialize the terms of such purchase in
writing;
NOW THEREFORE, in consideration of the mutual promises between the
parties, and other good and valuable consideration, the receipt and
sufficiency of which each hereby acknowledge, the parties agree as follows:
1. Commencement of Operation. Board has purchased the Business
Assets and will operate the FBO beginning November 1, 2002. EENT agrees
that as soon as practicable, and no later than December 1, 2002, it will
commence operations of the FBO and take possession of the Leased Premises
as set forth in the FBO Agreement.
2. Transfer of Business Assets. Simultaneously with the commencement
of its operations under Paragraph 1 above, EENT shall pay to Board in cash,
cashier's check or certified funds, the sum of $92,500.00 for the purchase
of all of the Business Assets described in Exhibit "A", with the exception
of the item denoted as "EPA Approved Tank Farm Containment Area" ("Fuel
Farm") Board shall convey to EENT the remainder of such Business Assets by
a Special Warranty ▇▇▇▇ of Sale. Additionally, on or before December 1,
2002, or such other time and day as the parties may agree, representatives
of Board and Operator shall conduct an inventory of consumable items,
inventory, equipment, etc. Operator shall purchase from Board all unopened
inventory of food and supplies based upon a physical count of such inventory
and supplies taken on November 30, 2002. The value of such inventory and
supplies shall be based upon the invoice prices of the same and the Operator
shall pay to Board at closing an amount equal to the value of such inventory
and supplies. Likewise, Operator shall purchase the fuel remaining in the fuel
tanks and the fuel trucks and payment for the fuel shall be made to Board.
3. Lease of Fuel Farm. Board agrees that it shall lease to EENT, for
the term of the FBO Agreement, the use and occupancy of the Fuel Farm,
subject to the terms and conditions of such use as may be set forth in the
FBO Agreement, at a rental rate of $1.00 per year.
4. Liquidated Damages. Board and Operator recognize that time is of
the essence of this agreement and that Board will suffer financial loss and
inconvenience if EENT fails to purchase the Business Assets and take
85
possession of the Leased Premises and begin operation of the FBO on or before
December 1, 2002. The parties also recognize the delays, expense and
difficulties involved in proving, in a legal or arbitration proceeding, the
actual loss suffered by the Board if EENT fails to purchase the Business
Assets and take possession of the Leased Premises and begin operation of the
FBO on or before December 1, 2002. Accordingly, assuming all of the Business
Assets are in the same condition as when purchased by the Board (normal wear
and tear excepted) from Flite ▇▇▇▇▇▇▇ Aviation; Flite ▇▇▇▇▇▇▇ Aviation and
▇▇▇▇ ▇▇▇▇▇▇▇ have executed and delivered to EENT the previously agreed to
Release, Covenant not to ▇▇▇ and Indemnification Agreement; all assets
included in Exhibit "A" (with the exception of the Fuel Farm) are available
for sale to Operator; neither Board nor a third party has taken any action
to prevent Operator from assuming operation of the FBO upon the terms and
conditions set forth in the FBO Agreement; and the Board has removed Flite
▇▇▇▇▇▇▇ Aviation and ▇▇▇▇ ▇▇▇▇▇▇▇ and all of their personal property from
Nick's Hangar and neither Flite ▇▇▇▇▇▇▇ Aviation nor ▇▇▇▇ ▇▇▇▇▇▇▇ is then
operating an FBO at ▇▇▇▇▇▇▇ Field in ▇▇▇▇▇▇▇▇▇ County, then Board and
Operator agree that as liquidated damages, and not as a penalty, for EENT's
failure to purchase the Business Assets and take possession of the Leased
Premises and begin operation of the FBO on or before December 1, 2002, EENT
shall pay to Board the sum of $92,500.00, provided, however, that
immediately upon payment of such sum, EENT shall be deemed to have purchased
the Business Assets (except the Fuel Farm) and shall have all rights under
the FBO Agreement. Notwithstanding the foregoing, in the case that EENT
does not close on the purchase by December 1, 2002, and the Board is able
to sell the assets to a third party or elects to run the FBO itself, the
extent of liquidated damages shall be decreased by the greater of (i) the
sale price of such Business Assets or (ii) the fair market value thereof.
5. Employees. On the date that EENT takes over operations of the FBO,
EENT agrees that it shall hire the then current employees of the FBO, should
such employees desire to be so hired, provided, however, that EENT has not
discovered any issues or circumstances that would make any of such employees
unsuitable for such employment and provided that such employees are amenable
to employment with EENT upon terms and conditions acceptable to EENT.
6. Continuity of Business. Board agrees that at the time of Closing the
business shall be operational and shall have sufficient inventory and supplies
so that Operator may continue the business in the same fashion as the Board.
Board likewise agrees that from the date of execution of this Agreement to the
date of closing, no organizational or operational changes will be made to the
Business, including, but not limited to the following:
A. Board shall not fire employees without Operator's prior written
approval;
B. Board will use its best efforts to continue its normal
relationships with all vendors and suppliers and shall not terminate any such
relationships;
C. Board shall not liquidate any Business Assets, share any trade
secrets, or take any action that would be detrimental to the ongoing conduct
of the Business;
D. Board shall not make any extraordinary purchases or commitments
without the prior written approval of the Operator;
E. Board will maintain normal hours of operation.
86
7. Board's Covenants. Board covenants that from the date of this
Agreement until the closing:
A. Access to Information. Operator and its counsel, accountants,
and other representatives shall have full access during normal business
hours to all properties, books, and records relating to the operation of the
business. Board shall furnish to Operator and its representatives all data
and information concerning the operation of the business that may reasonably
be requested.
B. Business Relationships. Board shall use its best efforts to
preserve its present relationships with suppliers, customers, and others
having relationships with the Business.
C. Inventory. On November 30, 2002, or such other time and day as
the parties may agree, Board and Operator shall conduct an inventory of
consumable items, inventory, equipment, etc. Operator shall purchase from
Board all unopened inventory of food and supplies based upon a physical
count of such inventory and supplies taken on November 30, 2002. The value
of such inventory and supplies shall be based upon the invoice prices of the
same (or the price which Board paid for such items as part of the terms of
the Purchase Agreement) and the Operator shall pay to Board at closing an
amount equal to the value of such inventory and supplies. Operator shall
purchase the fuel remaining in the fuel tanks and the fuel trucks and
payment for the fuel shall be made to Board.
D. Accounts Payable. At the time of closing, all accounts which
are the obligation of the Board shall be paid in full.
8. Closing. The consummation of the sale of the Business Assets by
Boardshall constitute the closing. Unless otherwise agreed in writing by
the parties, the closing shall take place on December 1, 2002, at High
Country Title, Inc., or at such other place and time as may be agreed by
the parties. The costs of the closing shall be split equally between the
parties.
9. Transaction. At the Closing:
A. For the Business Assets, Board shall execute and deliver to
Operator such instruments of assignment, transfer, sale or authorization
appropriate and necessary to vest in Operator, its successors and assigns,
all of Board's right, title and interest in and to the Business Assets,
including, without limitation. a ▇▇▇▇ of Sale, including those items listed
on the attached Exhibit "A", and including all warranties associated with the
Business Assets. Board shall be entitled to all receipts and revenues
generated by the Business through 5:00 p.m. on November 30, 2002.
Additionally, Board shall assign to Operator such interest in the Purchase
Agreement as will protect Operator and ensure that Operator has the benefit
of all of the warranties and representations made in such Purchase Agreement.
B. Operator shall pay to Board the sums as set forth in Paragraph
2 above, less adjustments to the Purchase Price for any required pro rations,
as described herein.
C. Each party, at any time before or after the closing date, shall
execute, acknowledge, and deliver any further documents, assignments,
conveyances and other assurances, documents and instruments of transfer,
reasonably requested by the other and shall take any other action consistent
87
with the terms of this Agreement that may reasonably be requested by Operator
for the purpose of transferring to Operator, or reducing to possession, any
property to be transferred by this Agreement.
10. Prorations. Water, sewer and any other continuing obligations shall
be prorated to the date of closing.
11. Payment of Encumbrances. Any encumbrance or tax required to be paid
by Board shall be paid at or before closing from the proceeds of this
transaction or from any other source.
12. Condition of and Damage to Business Assets. The Business Assets
shall be conveyed to Operator in the condition they were in at the time of
execution of this Agreement, ordinary wear and tear excepted. In the event
the Business Assets shall be damaged by fire or other casualty prior to the
time of closing, which damage represents, in Operator's opinion, an amount of
not more than ten percent (10%) of the purchase price set forth herein, Board
shall be obligated to repair the same, if practicable, before Closing, or
Operator may withhold from the Purchase Price the reasonable cost of such
repairs and make such repairs itself. In the event such damage is not
repaired within said time or if the damages exceed ten percent (10%) of the
purchase price set forth herein, this Agreement may be terminated at the
option of Operator. Should Operator elect to carry out this Agreement despite
such damage, Operator shall then be entitled to credit for all the insurance
proceeds resulting from such damage to the Business Assets, not exceeding,
however, the total purchase price.
13. Modification and Waiver. This Agreement constitutes the entire
Agreement between the parties pertaining to the subject matter contained in
it and supersedes all prior and contemporaneous agreements, representations,
and understandings of the parties. No supplement, modification, or amendment
of this Agreement shall be binding unless executed in writing by all of the
parties. No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall
be binding unless executed in writing by the party making the waiver.
14. Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
15. Assignment. This Agreement shall be binding on, and shall inure to
the benefit of the parties to it and their respective heirs, legal
representatives, successors and assigns.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado and any applicable
provisions of the federal laws of the United States and regulations issued
thereunder. Venue is agreed to be exclusively in the courts of ▇▇▇▇▇▇▇▇▇
County, Colorado or the U.S. District Court for the District of Colorado.
17. Continuing Obligations. Any terms or conditions contained in this
Agreement, not intended to be completed at or before closing, shall not merge
in the closing documents and shall specifically survive closing.
18. Attorney Fees. The prevailing party in any action to interpret the
terms of this Agreement or to enforce any of the rights, obligations or
conditions of this Agreement shall collect all reasonable costs and expenses
88
incurred in such action, including, but not limited to, reasonable attorney's
fees.
19. Amendments. Amendment, changes or modifications to this Agreement
or any of its Exhibits must be in writing and executed by authorized agents
or representatives of the parties hereto.
20. Severability and Governmental Action. If one or more clauses,
sections, or provisions of this Agreement shall be held to be unlawful,
invalid, or unenforceable, or in conflict with an applicable law,
regulation or cognizant governmental unit or agency, it is agreed that
the remainder of the Agreement shall remain in full force and effect as
if such invalid or inconsistent provision was not included. Operator and
Board agree to negotiate a change in this Agreement to incorporate the
intent of the invalid or inconsistent provision.
21. Entire Agreement. The foregoing, together with the Exhibits to
this Agreement and any other documents incorporated into the Agreement by
reference, constitute the entire Agreement between the parties and supersedes
all other agreements or representations of any nature, whether oral or
written made by or between Board or Operator. The parties understand and
agree that they are relying only upon the written representations, covenants
and promises contained in this Agreement and that they have consulted legal
counsel as to the nature and extent of their obligations contained herein.
22. Construction of Agreement. The parties participated jointly in the
negotiation of this Agreement and each party has had the opportunity to
obtain the advice of legal counsel and to review and comment upon and redraft
this Agreement. Accordingly, it is agreed that no rule of construction shall
apply against any party or in favor of any party, and any uncertainty or
ambiguity shall not be interpreted against any one party and in favor of the
other.
23. Board's Tender of Possession of Nick's Hangar. Effective as of
5:00 p.m. on November 30, 2002, or before such date upon mutual agreement of
the parties, Board shall cease doing business as the FBO and Board shall
cease to sell any of the inventory or fuel. Board shall tender possession of
the property known as "Nick's Hangar" to Operator at the time of Closing.
IN WITNESS WHEREOF, the Board and Operator, by their duly authorized
officers or legal representative, have executed this Agreement as of the day
and year stated next to their signature, to evidence their complete
understanding and intent to be bound to the terms stated in this Agreement
as of the date stated at the beginning of this Agreement.
ENERGY & ENGINE TECHNOLOGY CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Its Chairman and President
Dated 11/6/02
ATTEST:
/s/ Jolie ▇. ▇▇▇▇
Jolie ▇. ▇▇▇▇
Its Secretary
89
BOARD OF COUNTY COMMISSIONERS
OF ▇▇▇▇▇▇▇▇▇ COUNTY, COLORADO
/s/ Wm. ▇. ▇▇▇▇▇▇, Chariman
Wm. ▇. ▇▇▇▇▇▇, Chairman
Date Nov 5, 2002
90
SECOND AMENDMENT
TO FIXED BASE OPERATOR (FBO)
AGREEMENT AND HANGAR LEASE
This SECOND AMENDMENT ("Second Amendment'") TO FIXED BASE OPERATOR (FBO)
AGREEMENT AND HANGAR LEASE ("FBO Agreement"), made and entered into this 5th
day of December, 2002, by and between the BOARD OF COUNTY COMMISSIONERS OF
▇▇▇▇▇▇▇▇▇ COUNTY, COLORADO ("Board") and ENERGY & ENGINE TECHNOLOGY
CORPORATION ("Operator". or "EENT"), as follows:
WHEREAS, Board and EENT previously have entered into the FBO Agreement
dated October 16, 2002, as amended by the Amendment to Fixed Base Operator
(FBO) Agreement ("Amendment") and Hanger Lease DATED OCTOBER 31, 2002; and
WHEREAS, Board purchased the Business Assets of the FBO at ▇▇▇▇▇▇▇ Field
in ▇▇▇▇▇▇▇▇▇ County, Colorado on November 1, 2002; and
WHEREAS, Board and EENT entered into an agreement for the purchase of
the Business Assets from the Board by EENT, as more fully set forth in the
Amendment; and
WHEREAS, certain dates for closing and an inventory set forth in the
Amendment have changed and the parties wish to memorialize such changes by
this writing:
NOW THEREFORE, in consideration of the mutual promises between the
parties, and other good and valuable consideration, the receipt and
sufficiency of which each hereby acknowledge, the parties agree as follows:
1. The date for EENT to commence operations of the FBO and take
possession of the Leased Premises (as such term is defined in the FBO
Agreement) shall be changed to December 5, 2002.
2. The date for the inventory of the Business Assets and inventory of
consumable items, shall be changed to December 4, 2002.
3. The date for closing and payment of the purchase price shall be
changed to December 5, 2002.
4. Board shall be entitled to all receipts and revenues generated by
the Business through 5:00 p.m. on December 4, 2002.
5. The date for tender of possession of Nick's Hangar as set forth in
Paragraph 23 of the Amendment shall be changed to December 5, 2002.
6. The parties agree that the Operator shall be changed from EENT to
Wind Dancer Aviation Services, Inc., a subsidiary of Energy & Engine
Technology Corporation.
Board of County Commissioners of
▇▇▇▇▇▇▇▇▇ County, Colorado
/s/ ▇▇▇ ▇▇▇▇▇
By: ▇▇▇ ▇▇▇▇▇
Manager, ▇▇▇▇▇▇▇▇▇ County Airport
91
ENERGY & ENGINE TECHNOLOGY CORPORATION
/s/ Jolie ▇. ▇▇▇▇
By: Jolie ▇. ▇▇▇▇
Its: General Counsel
92