1
[DISNEYLAND LETTERHEAD]
EXHIBIT 10.26
AGREEMENT
FOR
CAST MEMBER SHUTTLE SERVICES
This Agreement ("Agreement") is entered into as of October 30th, 1997, by and
between DISNEYLAND (hereinafter referred to as "DISNEYLAND" or "Owner") located
at 0000 Xxxxxx Xxxx., Xxxxxxx, XX 00000-0000 and PREFERRED TRANSPORTATION, INC.
dba SUPERSHUTTLE (hereinafter referred to as "Operator"), located at 0000 X.
Xxxxxxx Xxxx. Xxxxxxx, XX 00000 with respect to the following facts:
RECITALS
A. Operator is in the business of providing shuttle and/or transportation
services.
B. Disneyland has the need for shuttle and/or transportation services.
C. Disneyland desires to obtain the transportation services of Operator
and all related services from Operator, subject to the terms and conditions
contained herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. SERVICES PROVIDED BY OPERATOR. DISNEYLAND hereby engages Operator to
provide the DISNEYLAND Resort with all necessary equipment and personnel
("Personnel") of the type and per the specifications designated by DISNEYLAND as
set forth on the Scope of Service attached and incorporated herein as Exhibit
"A".
a. Personnel. Operator shall supply DISNEYLAND with all equipment
and Personnel described in the Scope of Service.
i. If Disneyland determines, in its sole discretion, that
the quality of shuttle/transportation services being provided by Operator is not
satisfactory, Disneyland shall so notify Operator specifying areas of needed
improvement and providing Operator a reasonable time to correct. Of particular
importance to Owner is the requirement that Operator perform within the time
requirement which is the basis of this Agreement, that is, the five minutes
pickup and ten minutes delivery requirement.
b. Personnel are Operator's Employees. As more fully provided in
Paragraph 5.b hereof, Operator shall: (i) assure that all Personnel providing
services to Disneyland hereunder shall be employees of Operator, and not merely
Operator's consultants, independent contractors or subcontractors, and (ii)
compute and pay all Personnel wages and other compensation, and compute,
withhold and pay, as required by law, all statutory payments and payroll taxes
covering the services of such Personnel.
C. Interview and Selection. Prior to hiring any individual to be
provided to Disneyland as Personnel hereunder, Operator shall verify that
individual's: (i) employment eligibility, including proof of identity and legal
ability to work in the United States, and (ii) compliance with Disneyland's
requirements, including but not limited to grooming and appearance guidelines
and security requirements, as more fully described in Paragraph 5.d hereof.
2
d. Control of Personnel. Day-to-day supervision and direction of
Personnel in the performance of their services for the benefit of DISNEYLAND
shall be the responsibility of Operator. Operator shall be exclusively
responsible for the hiring and all administrative matters including any
discipline deemed appropriate.
e. Amendment of Service Schedule. From time to time subsequent to
the execution of this Agreement the parties may mutually agree in writing to add
to or delete from the schedule included in the Scope of Service (Exhibit A).
Such written agreement shall include its effective date, shall reference this
Agreement and Exhibit A, and shall be subject to the terms and conditions of
this Agreement, and a copy thereof shall be sent to all addressees as provided
in Paragraph 11.d hereof. In the event such written agreement adds to the Scope
of Service, DISNEYLAND shall provide Operator with such information as may be
reasonably required in order for Operator to provide in such service to
Disneyland hereunder.
2. FEE AND PAYMENT. Subject to the provisions of this Agreement, on a
prorated monthly basis Disneyland shall compensate Operator for its services
hereunder pursuant to the fee schedule contained in Paragraph 9 of the Scope of
Services attached and incorporated by reference as Exhibit "A".
a. Fee for Services. The total fee (hereafter "contract sum") for
this Agreement shall be THREE MILLION ONE HUNDRED THOUSAND DOLLARS
($3,100,000.00) paid out by the following schedule: Ninety (90%) per cent of the
total contract sum shall be paid in twenty four (24) equal monthly installments.
The balance of the contract sum (10%) shall be awarded, if at all, based upon
Owner's evaluation of Operator's service each quarter, four times per contract
year, for the two year contract term. Criteria for receipt of the full ten
percent (referred to in the Scope of Work as "bonus" and also "discretionary
retention") shall be first and foremost successfully meeting the performance
standards of 5 minutes/10 minutes pickup/delivery; achieving the appearance and
vehicle maintenance criteria as set forth in the Scope of Work; and an overall
positive rating as evidenced in feedback on the Cast rider survey.
3. REPORTS. Operator shall provide Disneyland with reports of the type and
in the format as Owner may require. These may include the total number of riders
transported to Disneyland for the preceding calendar week, the total hours of
maintenance for each of the coaches services during that month, etc.
4. LIMITATIONS ON ADVERTISING AND PROMOTION. Operator shall not use or
reproduce Disneyland's name, logo, characters or other identifying designs
and/or symbols, or refer to Disneyland directly or indirectly, in connection
with any advertisement, news release or release to any professional or trade
publication without the prior written consent of Disneyland to the specific use
or reference. Operator shall acquire no right under this Agreement to use, and
shall not use, the name "Disney" (either alone or in conjunction with or as part
of any other word or name) or any fanciful characters or designs of The Xxxx
Disney Company or any of its related, affiliated or subsidiary companies: (i) in
any of its advertising, publicity or promotion; (ii) to express or imply any
endorsement by Disneyland or Disney of any services provided by Operator; or
(iii) in any other manner (whether or not similar to the uses hereinabove
specifically prohibited). The provisions of this Paragraph 4 shall survive the
expiration or earlier termination of this Agreement.
5. RELATIONSHIP OF PARTIES.
a. Independent Contractor. It is understood and agreed that
Operator is acting as an independent contractor in its provision of services and
performance of obligations hereunder, and nothing herein shall be deemed to
create an agency relationship between Disneyland and Operator.
2
3
b. Personnel are Operator's Employees. Operator acknowledges that
neither Operator nor its Personnel and other employees, officers and agents
shall be eligible to participate in any of Disneyland's employee benefit or
welfare plans. Operator shall advise and inform fully all of its Personnel and
other employees, officers and agents providing services to Disneyland hereunder
that they will be considered general employees of Operator and that Disneyland
shall not be liable to any of them as an Operator in any amount for any wages,
benefits, claims or causes of action arising out of or relating to their
assignment at or to Disneyland or the termination thereof.
c. Operator's Responsibility for Personnel's Wages and Benefits.
Operator shall have exclusive responsibility for the full payment of all wages
or other compensation, benefits, and of taxes and any and all other statutory
payments for all Personnel and other employees, officers or agents of Operator
supplied to Disneyland hereunder as provided in this Paragraph 5.c. With respect
to the hire, tenure or conditions of employment of Operator's Personnel and
other employees, officers and agents providing services to Disneyland, as well
as their respective hours of work, their rates of pay and the payment of their
wages, and the payment, collection, withholding and/or deduction of all federal,
state and local taxes and contributions, Operator shall be solely responsible
for: (i) making all payments, reports, collections and deductions, (ii) keeping
and having available for inspection and/or audit by Disneyland or its authorized
representatives all necessary records or reports, and (iii) otherwise doing any
and all things so as to comply fully with all federal, state and local laws,
ordinances and/or regulations in regard to said matters, including but not
limited to federal immigration laws, so as to relieve Disneyland fully from and
protect it against responsibility or liability for all of the foregoing. The
provisions of this Paragraph 5 shall survive the expiration or earlier
termination of the Agreement.
d. Compliance with Security Requirements. When providing services
hereunder, Operator, its Personnel and other employees, officers and agents
shall be subject to Disneyland' security regulations. Disneyland's security
regulations may require fingerprinting and background investigation (including
prior criminal record, if any) of all Personnel and other employees, officers
and agents of Operator having regular access to Disneyland's secured areas.
Operator hereby agrees that Operator's Personnel and other employees, officers
and agents shall submit to Disneyland's security procedures, as requested by
Disneyland, and shall comply in all respects with Disneyland's security
regulations. Disneyland shall reimburse Operator for any costs incurred by
Operator to comply with Disneyland's security regulations as provided herein. It
shall be Operator's responsibility to assure that drivers utilized by Operator
in providing services under this Agreement shall, while within the Riviera lot
and the Disneyland Resort, comply with: all traffic signs and all speed limits
established by Disneyland; all rules and regulations promulgated by Disneyland
with respect to traffic and parking; and all lawful instructions of Disneyland
Security and other authorized personnel concerning conduct of drivers or their
operation of vehicles.
6. CONFIDENTIALITY. Operator acknowledges that, during the course of
providing Personnel and Shuttle services to Disneyland hereunder, Operator may
have access to and/or acquire knowledge from confidential or proprietary
information of or regarding Disneyland, The Xxxx Disney Company or any of its
related, affiliated or subsidiary companies (collectively referred to at times
hereinafter as "Disney") or other information of advantage or value to a
competitor that is not accessible or known to the general public ("Confidential
Information").
a. Use of Confidential Information. Operator shall not (and shall
direct its Personnel and other employees, officers and agents not to) use for
its (or his) own benefit any Confidential Information, and Operator shall not
(and shall direct its Personnel and other employees, officers and agents not to)
disclose any Confidential Information that is disclosed to Operator or any of
its Personnel or other employees, officers or agents by Disney or any agent
thereof (whether or not authorized to disclose such
3
4
Confidential Information) to any person or entity other than those to whom
Disney has authorized Operator in writing to disclose such Confidential
Information. Notwithstanding the foregoing, Operator may use such Confidential
Information as may be or has been disclosed by Disney to Operator, pursuant to
the terms hereof or otherwise, for the sole purpose of providing the services
required to be performed by Operator as set forth in Paragraph 1 of this
Agreement. Operator shall not make copies of any Confidential Information
without first receiving written approval from Disney and marking such copies as
"Confidential and Proprietary Property of Disneyland." Nothing in this Agreement
shall be deemed or construed to grant to Operator a license to use, sell,
develop, exploit, copy or further develop any Confidential Information. Operator
shall direct Personnel not to disclose Confidential Information to Operator.
b. Limited Disclosure, Nondisclosure Agreement. Operator shall
disclose or permit access to any of the Confidential Information only to
Personnel and other employees, officers or agents of Operator having a specific
need-to-know in Operator's provision of Personnel and related services hereunder
and, with respect to third-party agents of Operator, only after obtaining the
prior written consent of Disneyland (which consent Disneyland may withhold in
its sole discretion). Operator also shall take all steps necessary to ensure
fulfillment of the obligations of this Paragraph 6, to inform its consultants,
employees (including Personnel), officers and agents of their obligations of
nondisclosure and confidentiality established herein, and to obtain their
agreement to the fulfillment of such obligations, by requiring all consultants
and all employees (including Personnel), officers and agents of Operator to sign
a confidentiality agreement prohibiting their disclosure of any Confidential
Information, which agreement shall be in the form of Exhibit B attached hereto
and incorporated herein by this reference. Operator shall provide a copy of each
such signed confidentiality agreement to Disneyland.
c. Cooperation Re Subpoenas and Misappropriation. In the event
that a subpoena or other legal process served on Operator in any way concerns
Confidential Information obtained by Operator, its Personnel and other
employees, officers or agents, Operator agrees to notify Disneyland immediately
upon receipt of such subpoena or other legal process and to cooperate with
Disney, at Disney's expense, in any lawful effort by Disney to contest the legal
validity of such subpoena or the legal process. Nothing herein shall limit
Operator's ability to satisfy any governmentally required disclosure of its
relationship with Disneyland. In the event Operator becomes aware of any
misappropriation or misuse by any person or entity of any Confidential
Information, Operator shall immediately advise Disney in writing and, in the
event of any legal action brought by Disney in connection therewith against
third parties, Operator agrees that it will, at Disney's expense, cooperate and
provide such assistance as may be reasonably necessary to enable Disney to
successfully prosecute such legal action.
d. Third-Party Information. Operator, its Personnel and other
employees, officers and agents shall not disclose to Disneyland any information
that such person or entity knows to be proprietary or confidential information,
data, development or a trade secret of a third party without the prior written
consent of such third party. Operator agrees to take all reasonable steps
necessary to ensure fulfillment of this obligation.
e. Remedies; Return of Documents. In view of the nature of
Operator's engagement hereunder and the Confidential Information Operator and
its Personnel and other employees, officers and agents are likely to receive
during the term of this Agreement, Operator agrees that Disney would be
irreparably harmed by any violation or threatened violation of this Agreement
and that therefore Disney shall be entitled to seek an injunction prohibiting
Operator and its Personnel and other employees, officers and agents from any
violation or threatened violation of this Paragraph 6. Upon the expiration or
earlier termination of this Agreement (or of any particular Personnel's
provision of services hereunder) for any reason, Operator shall immediately
return (or shall direct that said Personnel immediately returns) to
4
5
Disney any and all documents or other material of any kind, containing or
pertaining to any Confidential Information, together with any and all copies,
reproductions and samples of any of the foregoing.
f. Survival of Provisions. The provisions of this Paragraph 6
shall survive the expiration or earlier termination of this Agreement.
7. REPRESENTATIONS AND WARRANTIES.
a. Of Operator. Operator hereby represents and warrants to
Disneyland that Operator: (i) has the experience and skill to perform all of its
obligations hereunder; (ii) shall comply with all applicable federal, state and
local laws, including all professional registrations, consents, licenses and
permits (both corporate and individual for all disciplines required in
Operator's conduct of its business); (iii) shall perform its obligations
hereunder in accordance with generally accepted professional standards and in an
expeditious and economical manner consistent with the best interests of
Disneyland; (iv) has sufficient capital assets and is adequately financed to
meet all financial obligations it may be required to incur hereunder and under
its other obligations and commitments; (v) with respect to the hire, tenure or
conditions of employment of the Personnel and other employees, officers and
agents, will not discriminate on the basis of race, color, religion, sex,
national origin, age, disability, veteran status or any other basis precluded by
law; (vi) is either (A) exempt from the requirements of Executive Order 11246 or
similar federal, state or local laws, ordinances or regulations or (B) in
compliance with and will continue to abide by such federal, state or local laws,
ordinances or regulations, and particularly the Equal Opportunity Clause of 41
C.F.R. Section 60-1.4a, the provisions of which are specifically incorporated
herein by reference to have the same force and effect as if set out in their
entirety, during the term of this Agreement; and under the other obligations and
commitments (vii) has included or will include said Equal Opportunity Clause in
each of Operator's non-exempt subcontracts and purchase orders hereunder and
(viii) is not currently under the jurisdiction of any bankruptcy court. Operator
further represents and warrants that all Personnel supplied to Disneyland shall
be for all purposes employees of Operator, as more specifically provided in
paragraph 5.b hereof.
b. Of Disneyland. Disneyland hereby represents and warrants that
Disneyland shall operate its business in a lawful and commercially reasonable
manner, including maintaining in effect all business licenses, certificates and
operating permits required for the lawful conduct of its business; (ii) furnish
appropriate safety and hazardous material training and all tools and other
materials, including protective devices, apparel and instruments required for
Operator and other employees, officers and agents of Operator to provide their
services hereunder in compliance with all federal, state and local health and
environmental laws and regulations; (iii) comply with all applicable federal,
state and local laws and regulations relating to the hiring, tenure and
employment conditions of employees; and (iv) furnish to Operator, prior to
execution, any documents Disneyland desires Operator's Personnel and other
employees, officers and agents to sign.
8. INSURANCE AND INDEMNIFICATION
a. Operator's Insurance. Prior to the commencement of the term of
this Agreement, Operator shall provide a certificate or certificates of
insurance to Disneyland specifying that Operator has policies of insurance in
effect, carried by an insurer/or insurers with a BEST guide rating of B+VII or
higher and on forms and with companies acceptable to Disneyland covering
Operator's officers, employees (including Personnel), agents, servants and
subcontractors (if any) engaged in the provision of services under this
Agreement upon the following terms and conditions and for the specified amounts:
5
6
i. statutory workers' compensation insurance covering
all of Operator's employees; and
ii. Operator's liability insurance with a minimum limit
of $5 million per occurrence with respect to any employee (including Personnel);
and
iii.
iv. occurrence basis commercial general liability
insurance, including non-owned and hired automobile liability coverage,
applicable to personal injury (including death) and property damage, with a
combined single limit of not less than $5 MILLION PER OCCURRENCE. The commercial
general liability insurance also shall contain: (A) provision or endorsement
naming Disneyland and its related, affiliated and subsidiary companies, and
their respective directors, officers, employees, representatives and other
agents, as additional insureds with respect to liability arising out of the
performance of any services by Operator or its Personnel or other employees,
officers, agents or servants under this Agreement and providing that such
insurance is primary insurance with respect to Disneyland's interests and that
any other insurance maintained by Disneyland is excess and not contributing
insurance with the insurance required hereunder; (B) a waiver of subrogation
with respect to the additional insureds; and (C) provision or endorsement
stating that such insurance shall include contractual liability specifically
referring to liability assumed by Operator under this Agreement, including
without limitation that set forth in Paragraph 8.c ("Indemnification") of this
Agreement.
All certificates called for by this Paragraph 8.a also shall specify that not
less than thirty (30) days' written notice shall be given to Disneyland prior to
cancellation, termination or modification of any policy of insurance required by
this Paragraph 8.a. In the event of any cancellation or reduction of coverage,
Operator shall obtain substitute coverage as required hereunder, without any
lapse of coverage to Disneyland whatsoever.
b. Workers' Compensation Understanding. For purposes of any and
all workers' compensation statutes, laws or regulations (collectively, "Workers'
Compensation"), Operator hereby acknowledges that a special employment
relationship exists between Disneyland and any Personnel or other employees,
officers or agents of Operator providing services to Disneyland under this
Agreement, and that Disneyland shall be considered the special employer of any
of such individuals providing services hereunder. Accordingly, Operator
acknowledges and agrees that in the event of any injury, illness, disability or
death to any such individual falling within the purview of Workers'
Compensation, such individual's rights and remedies (and those of such
individual's heirs, executors, administrators, successors and assigns) against
Disneyland or its related affiliated and subsidiary companies, and their
respective directors, officers, agents and employees (including, without
limitation, any other special employee and any corporation or any other entity
furnishing to Disneyland or any such affiliated entity the services of any such
other special employee) shall be governed by and limited to those provided by
Workers' Compensation, and, if not determined by a court or similar tribunal to
be so governed and limited, such rights and remedies shall be fully indemnified
against by Operator, as provided in Paragraph 8.c hereof.
c. Indemnification. Operator shall defend (if required by
Disneyland and with counsel selected by Disneyland), and hereby does indemnify
and hold harmless Disneyland, its related, affiliated and subsidiary companies,
and their respective officers, directors, employees and agents, from and against
any and all losses, damages, injuries, causes of action, claims, demands, suits,
judgments and expenses (whether based upon tort (including a tort action for
injury on the job), breach of contract, use in violation of Paragraph 4 hereof,
disclosure in violation of Paragraph 6 hereof, failure to pay employee taxes,
withholdings or benefits, or other violation of Paragraph 5.c hereof, failure to
obtain workers'
6
7
compensation insurance or failure of special employer status to be recognized,
or otherwise), including legal fees and expenses, of whatever kind or nature
arising directly or indirectly out of or on account of, or resulting from claims
related to: (i) any error, omission or act of Operator or its subcontractors,
affiliates, officers, directors, employees (including Personnel),
representatives or agents; (ii) any of the foregoing relating to the performance
of Operator's obligations under this Agreement, or any breach or alleged breach
of any representation, warranty, obligation and/or covenant contained herein;
(iii) any failure of Operator to perform its services hereunder in accordance
with generally accepted professional standards; or (iv) any determination by a
court or governmental agency that any Personnel are employees of Disneyland,
except as otherwise provided in Paragraph 8.b hereof. The provisions of this
Paragraph 8.c shall survive the expiration or earlier termination of this
Agreement.
9. TERM AND TERMINATION.
a. Term. The term of this Agreement shall commence on October
30th, 1997, and shall expire on October 30th, 1999, unless earlier terminated as
provided herein. The term of this Agreement may be extended for an additional
term of one year upon the mutual agreement of the parties.
b. Termination on Notice. This Agreement may be terminated by
either party upon sixty (60) days' prior written notice to the other.
c. Termination for Cause. Either party shall have the right to
terminate this Agreement immediately in the event that the other party fails to
perform any material term, covenant or condition hereof.
d. This Agreement shall terminate immediately and automatically
if: Operator becomes insolvent, as defined in the California Uniform Commercial
Code, or makes an assignment for the benefit of creditors; or if any action is
brought by Operator seeking its dissolution or the liquidation of its assets or
seeking the appointment of a trustee, interim trustee, receiver or other
custodian for any of its property; or if Operator commences a voluntary
proceeding under the Federal Bankruptcy Code; or if any reorganization or
arrangement proceeding is instituted by Operator for the settlement,
readjustment, composition or extension of any of its debts upon any terms for
the purpose of avoiding insolvency; or if any action or petition is otherwise
brought by Operator seeking similar relief or alleging that it is insolvent or
unable to pay its debts as they mature; or if any action is brought against
Operator seeking its dissolution or liquidation of any of its assets, or seeking
the appointment of a trustee, interim trustee, receiver or other custodian for
any of its property, and any such action is consented to or acquiesced in by
Operator or is not dismissed within thirty (30) days after the date upon which
it was instituted; or if any proceeding under the Federal Bankruptcy Code is
instituted against Operator and an order for relief is entered in such
proceeding or such proceeding is consented to or acquiesced in by Operator or is
not dismissed within thirty (30) days after the date upon which it was
instituted; or if any reorganization or arrangement proceeding is instituted
against Operator for the settlement, readjustment, composition or extension of
any of its debts upon any terms, and such proceeding is consented to or
acquiesced in by Operator or is not dismissed within thirty (30) days after the
date upon which it was instituted; or if any action or petition is otherwise
brought against Operator seeking similar relief or alleging that it is
insolvent, unable to pay its debts as they mature or generally not paying its
debts as they become due, and such action or petition is consented to or
acquiesced in by Operator or is not dismissed within thirty (30) days after the
date upon which it was brought; if any assignment of Operator's interest in this
Agreement shall be made or deemed to be made without Disneyland's consent; or if
any judgment is entered in any litigation against Operator and/or any of
Operator's affiliates which judgment materially and adversely affects Operator's
ability to perform any of its obligations hereunder (or would result in
Operator being in default hereunder),
7
8
or (ii) any settlement of any litigation is entered into by any of the
foregoing, which settlement materially and adversely affects Operator's ability
to perform any of its obligations hereunder (or would result in Operator being
in default hereunder).
e. Other Continuing Obligations. Upon the expiration or earlier
termination of this Agreement, any provisions hereof that expressly or otherwise
by their intent are intended to survive beyond such expiration or earlier
termination, including without limitation those provisions hereof relating to
trademark and name usage limitations, non-liability of Disneyland to Personnel,
confidentiality, and indemnification and insurance (in Paragraphs 4, 5, 6, and
8, respectively), shall survive.
10. COMPLIANCE WITH LAWS. Operator shall, at its sole cost and expense,
promptly comply with all legal requirements applicable to the transportation
services provided by Operator hereunder. The phrase "legal requirements
applicable to the transportation services provided by Operator hereunder", as
used in this paragraph, shall mean and shall include all applicable federal,
state, county, municipal and other governmental constitutions, statutes,
ordinances, codes, regulations, resolutions, rules, requirements and directives
(and all decisions, judgments, writs, injunctions, orders, decrees or demands of
courts, administrative bodies and other authorities construing any of the
foregoing) (collectively, "LAWS") which relate in any manner to the services
provided by Operator hereunder, or to the operation or condition of the vehicles
used to transport Cast Members, including, but not limited to, Department of
Transportation regulations and similar requirements, use restrictions, safety
requirements, environmental requirements and requirements for the physically
challenged (including, without limitation, the American With Disabilities Act of
1990 (42 U.S.C. Section 12101 et. seq.), and the related implementing
regulations, codes, rules and accessibility guidelines, as such acts and related
regulations, codes, rules and guidelines may be amended from time to time
(collectively, the "ADA"). In addition, Operator shall at all times be in
compliance with all other governmental authorities and quasi-governmental
authorities having jurisdiction over the services provided by Operator
hereunder, and of all their respective departments, bureaus and officers, and of
the insurance underwriting board or insurance inspection bureau having
jurisdiction, or any other body exercising similar functions, and of all
insurance companies from time to time selected by Operator to write policies
covering the services. Such laws and regulations include, but are not limited to
those related to employment, occupational safety, and wages and hours, and in
particular employment opportunity laws such as the California Fair Employment
and Housing Act, the Federal Age Discrimination in Employment Act of 1976, Title
VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the
Rehabilitation Act of 1973 and the Employee Retirement Income Security Act of
1974, as any of them may be amended from time to time.
11. MISCELLANEOUS.
a. Cooperation. The parties hereto shall take such actions and
execute such documents as may be necessary to fulfill their respective
obligations under this Agreement and to otherwise effectuate the intent hereof.
Such cooperation shall include without limitation Disneyland's prompt
notification of Operator in the event that any Personnel or other employees,
officers or agents of Operator is injured while performing services to
Disneyland, as well as of any inspections or notices provided by any
governmental agencies to Disneyland that may affect the health, safety and/or
welfare of any such individuals.
b. Assignment. Operator shall not sell, assign or transfer this
Agreement or any of its rights and privileges hereunder or permit any such sale,
assignment or transfer to occur by operation of law, or
8
9
subcontract for the performance of any of the services to be provided by it
hereunder, without Disneyland's prior written approval, which approval may be
granted or withheld by Disneyland in the exercise of its sole discretion. The
issuance or the sale, transfer or other disposition of a sufficient number of
shares of stock (greater than 50%) in Operator shall be deemed an assignment of
this Agreement for purposes of this section. This Agreement shall inure to the
benefit of and be binding upon any of Disneyland's successors and assigns, and
Disneyland shall have the right to pledge, hypothecate, create a security
interest in, assign or otherwise transfer any or all of its rights under this
Agreement
c. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter of this
Agreement and supersedes any and all previous agreements between the parties,
whether written or oral, with respect to such subject matter.
d. Notices. Notices and approvals required or permitted to be
given hereunder shall be in writing and may be delivered personally, by
registered mail, return receipt requested, or by reliable air courier service,
marked and prepaid for overnight delivery and addressed as provided below; if
such notice is so deposited for overnight delivery, then such notice shall be
deemed to have been duly given one day following such deposit with such air
courier service. Any such notice or approval also may be given via facsimile
transmission, provided that a true and correct copy of any such notice or other
communication (along with any and all applicable attachments or enclosures)
shall be simultaneously therewith sent to the following address using any means
of delivery provided in this Paragraph 11.d or first class United States mail
(any such simultaneously sent copy referred to hereinafter as a "hard copy"):
As to Disneyland: Disneyland
0000 Xxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Manager
Resort Administration
Fax No.: (000) 000-0000
With a copy to: Disneyland
0000 Xxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Vice President-General Counsel
Fax No.: (000) 000-0000
As to Operator: SuperShuttle.
0000 X. Xxxxxxx Xxxx.
Xxxxxxx, XX. 00000
Attention: Xxxx Xxxxxx
Fax No.: (000) 000-0000
Notwithstanding any of the foregoing, in the event either party chooses to use a
facsimile transmission for any notice or approval under this Agreement, there
shall be no requirement to send any hard copy thereof as hereinabove provided.
e. Modification or Waiver. No waiver or modification of this
Agreement or of any covenant, condition or limitation herein shall be valid
unless set forth in writing and signed by both parties. Moreover, no waiver by
either party of the breach of any term or provision of this Agreement shall be
deemed or construed to be a waiver of any preceding or succeeding breach of the
same or any other term or provision.
9
10
f. Severability. If any term, provision, covenant or condition of
this Agreement is held by a court of competent jurisdiction to be void, invalid
or otherwise unenforceable, the remainder of the provisions shall not be
affected thereby and shall remain in full force and effect.
g. Governing Law, Determination of Disputes. This Agreement shall
be governed by, and construed in accordance with, the laws of the State of
California. Any dispute or claim between Operator and Disneyland arising out of
or in connection with this Agreement that cannot be amicably resolved by the
parties through good faith negotiations shall be submitted to the Court in and
for Orange County, California (or, if the Court shall not have jurisdiction over
the subject matter thereof, then to such other court sitting in said county
having subject matter jurisdiction thereof) for trial and determination. The
parties hereby consent to the jurisdiction of such court and to the service of
process outside the State of California pursuant to the requirements of such
court.
h. Headings. All captions and headings in this Agreement are for
convenience only and shall not be utilized in construing this Agreement.
i. No Election of Remedies
Disneyland's pursuit of any remedy shall not constitute an election of
remedies excluding the election of another remedy or other remedies, or a
forfeiture or waiver of any damages or other sums accruing to Disneyland by
reason of Operator's failure to fully and completely keep, observe, perform,
satisfy and comply with all of the agreements, terms, covenants, conditions,
requirements, provisions and restrictions of this Agreement. Disneyland's
forbearance in pursuing or exercising one or more of its remedies shall not be
deemed or construed to constitute a waiver of any default by Operator or of any
remedy.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the date first above written.
DISNEYLAND:
By: /s/ Xxxx X. Xxxx
----------------------
Name: Xxxx X. Xxxx
Title: Vice President, Resort Operations Development
SUPERSHUTTLE:
By: /s/ Xxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxx X. Xxxxx
Title: President
10
