SPACE AND USE AGREEMENT
Continental Airlines, Inc. ("CONTINENTAL"), by its execution of this Space and
Use Agreement ("The Agreement"), grants to Frontier Airlines, Inc. (the
COMPANY"), under the terms and conditions stated herein, certain rights and
privileges, including the right to occupy and use the space referred to herein
as the "PREMISES."
COMPANY, by its execution hereof, hereby accepts and receives the PREMISES and
the obligations, liabilities and responsibilities provided for herein. COMPANY
covenants and agrees to abide by and carry out all the terms, conditions and
provisions hereof. "COMPANY," as used herein, shall include, unless stated
otherwise, the directors, officers, employees, agents, customers and invitees of
COMPANY and all parties representing COMPANY, those for whom COMPANY is liable
and responsible, and all parties represented by COMPANY.
1. EFFECTIVE DATE January 1, 1999
2. COMPANY: The name, address and telephone number of the COMPANY are as
follows:
NAME: Frontier Airlines, Inc.
ADDRESS: 00000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
TELEPHONE: 000-000-0000
ATTENTION: Xxxx Xxxxxxxx
3. DESCRIPTION OF PREMISES: Certain maintenance hangar space (approx. 59,706
sq. ft.) within the Denver International Airport, being more fully
described on Exhibit A, attached hereto and made a part of, as well as
reasonable right of ingress and egress.
4. USE OF PREMISES: COMPANY is hereby granted the right to use the PREMESISES,
in accordance with the terms and conditions stated herein, for the
following purposes:
Exclusion use of the PREMISES (Exhibit A) for the purpose of maintenance
space in accordance with the terms and conditions of this Agreement, and
for no other purpose. Company is permitted, on a space available basis, the
common use of training rooms, break rooms, locker room/restrooms, loading
dock, parking areas, and a pro-rata share of apron space.
5. PROPERTY OWNER: City and County of Denver, hereinafter referred to as
"OWNER," has granted to CONTINENTAL, the right to use the PREMISES and
certain other rights and privileges under the following Lease, hereinafter
referred to as the "BASE LEASE":
Lessor: City and County of Denver
Lessee: Continental Airlines, Inc.
Dated: January 8, 1993
CONTINENTAL warrants and represents that as of the date hereof, the BASE LEASE
is in full force and effect.
6. CONSIDERATION/RENTAL: In consideration for the rights granted by
CONTINENTAL hereby, COMPANY, agrees to pay $1,200,000.00 annually to
Continental Airlines, Inc., in monthly installments of $100,000.00 paid in
advance on the first day of each calendar month. COMPANY further agrees to
pay as additional rental any increases in rental charges to CONTINENTAL
under the BASE LEASE or any amendments thereto. Payment shall be delivered
to CONTINENTAL at:
CONTINENTAL AIRLINES, INC
CREDIT MANAGEMENT
X.X. XXX 000000
XXXXXXX, XX 00000
ATTENTION: OUTSIDE SALES & SERVICE - DEN Hangar Sublease
7. TERM: This Agreement shall commence January 1, 1999 and shall continue
through January 1, 2004, unless otherwise terminated in accordance with the
terms and provisions hereof. Either party hereto shall have the right to
terminate this Agreement without cause at any time by giving the other
party three hundred sixty-five (365) days prior written notice of its
intention to do so. If, at the expiration of the Term, COMPANY fails to
vacate the PREMISES, then COMPANY shall be deemed a holdover tenant on all
of the terms and conditions of this Agreement (except that, without
limiting the rights provided to CONTINENTAL under this Agreement for a
breach by COMPANY, the monthly rental payable by COMPANY shall be two
hundred percent (200%) of the monthly rent provided for herein) and
CONTINENTAL reserves the right to evict COMPANY without further process of
law.
8. NOTICE: unless expressly required or permitted herein to be oral, all
notices, requests, consents and approvals required to be given to or by
either party shall be in writing, and shall be transmitted either by a
commonly recognized national delivery service or deposited as prepaid,
certified, registered or express United States mail addressed as follows,
or to the last address provided in accordance herewith:
TO CONTINENTAL: TO COMPANY:
Vice President Frontier Airlines, Inc.
Corporate Real Estate Properties & Facilities
Continental Airlines, Inc. 00000 Xxxx 00xx Xxxxxx
0000 Xxxxx Xx. - Xxxx. XXXXX Xxxxxx, XX 00000
Xxxxxxx, XX 00000
9. SECURITY DEPOSIT: Concurrently with the execution of this Agreement,
COMPANY shall deliver to CONTINENTAL, as a Security Deposit, $100,000.00,
which amount may be commingled with other funds belonging to CONTINENTAL
and shall bear no interest. After a default by COMPANY, CONTINENTAL may
apply any or all of the Security Deposit to cure such default as provided
in Section 17 hereof.
10. ADDITIONAL RENTAL/CHARGES/FEES:
A) The COMPANY shall be solely responsible for and shall pay when due
directly to the OWNER any and all fees, assessments, taxes and charges
of any kind whatsoever assessed in connection with COMPANY'S
operations, including but not limited to any applicable taxes and
property facility charges.
11. INSURANCE COVERAGE REQUIREMENTS:
Without limiting COMPANY's obligation to indemnify CONTINENTAL as provided for
in this Agreement, COMPANY shall procure and maintain, at its own cost, at all
times during the term of this Agreement, insurance of the following types and in
amounts not less than those indicated, with responsible insurers satisfactory to
CONTINENTAL providing the following coverage:
DESCRIPTION
A. Aviation and Comprehensive General Per Occurrence and with
Liability to include operations and aggregate as applicable:
Premises Liability $1,000,000,000* combined
single limits covering
bodily injury, property
damage
*or COMPANY limits if higher
B. Worker's Compensation Statutory
C. Employer's Liability $1,000,000
12. SPECAIL PROVISIONS: a) CONTINENTAL will use reasonable efforts to provide
janitorial, maintenance, and utility services for the common use PREMISES
(with exception to gas and electricity to entire PREMISES), but should not
be held liable if such services are interrupted from time to time. b)
COMPANY will be solely responsible for the cost of all tenant improvements.
All tenant improvements are subjects to the prior written consent of the
Vice President, Corporate Real Estate.
13. BAILMENT
During the term of this Agreement, an employee or agent of COMPANY shall at all
times be in charge of and in custody and control of all aircraft and other
property belonging to or in the control of COMPANY on or in the vicinity of the
PREMISES, and the parties hereby stipulate and agree that this agreement does
not confer upon CONTINENTAL any control over or obligation of bailment with
respect to any aircraft or other equipment owned or operated by COMPANY, and
does not subject CONTINENTAL to any of the liabilities of an OWNER, user, lessor
or operator of any aircraft or other equipment owned or operated by COMPANY.
14. SUBJECT TO BASE LEASE
COMPANY covenants and agrees, for the benefit of CONTINENTAL and OWNER, that it
shall not, by its use and occupancy of the PREMISES, violate any of the
provisions of the BASE LEASE as such BASE LEASE has been and/or may from time to
time be amended, or cause CONTINENTAL to be in default thereof, and that it
shall faithfully perform and discharge all of the obligations of CONTINENTAL
(except for payment of rental) thereunder, to the extent that such BASE LEASE
terms are applicable to the PREMISES or this Agreement COMPANY further covenants
that this Agreement shall be, in all respects, subject and subordinate to the
BASE LEASE, and any mortgages or other lien instruments that may affect the
PREMISES or CONTINENTAL'S interest therein, and nothing contained in this
Agreement shall be deemed to confer upon COMPANY any right which are not granted
by or are in conflict with the BASE LEASE. Not withstanding anything contained
herein, (a) this Agreement shall not be deemed to grant to the COMPANY any
rights or privileges which CONTINENTAL does not have under the BASE LEASE, and
(b) any act or omission of CONTINENTAL require by the BASE LEASE shall in no
event be deemed a violation of this Agreement.
15. ACCEPTANCE OF PREMISES
COMPANY HAS INSPECTED THE PREMISES AND ACKNOWLEDGES THAT CONTINENTAL HAS MADE NO
REPRENSENTATIONS AS TO THE CONDITION THEREOF. COMPANY ACCEPTS THE PREMISES IN
ITS PRESENT CONDITION, AS-IS, WITH ALL FAULTS, LATENT OR KNOWN. CONTINENTAL
MAKES NO WARRANTIES, GUARANTEES OR REPRENSENTAIONS OF ANY KIND, EITHER EXPRESS
OR IMPLIED, ARISING BY LAW OR OTHERWISE, PERTAINING TO THIS AGREEMENT OR THE
PROPERTY DESCRIBED HEREIN. COMPANY HEREBY WAIVES AND CONTINENTAL EXPRESSLY
DISCLAIMS ALL WARRANTIES, GUARANTEES AND REPRESENTATIONS, EXPRESS OR IMPLIED,
ARISING BY LAW OR OTHERWISE, INCLUDING NUT NOT LIMITING THE GENERALITY OF THE
FOREGOING, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR REGARDING
THE CONDITION OF THE PROPERTY. IN NO EVENT SHALL CONTINENTAL=S LIABILITY OF ANY
KIND UNDER THIS AGREEMENT INCLUDE ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR
EXEMPLARY DAMAGES EVEN IF CONTINENTAL SHALL HAVE BEEN ADVISED OF THE POSSIBILITY
OF POTENTIAL LOSS OR DAMAGE.
16. PAYMENTS
If the term of this Agreement shall commence or end on any day other than the
first and last day, respectively, of a calendar month, the consideration due for
a portion of a month shall be prorated on a per-diem basis, and the first
payment shall be due on or before the effective date hereof.
Any unpaid or past due amounts shall bear interest from the date due until paid,
at 1-1/2% per month, or, at CONTINENTAL's option, the maximum rate allowable by
law, which interest shall be considered as part of the rental payable hereunder.
Acceptance by Continental of any partial payment, including endorsement of a
check, shall not be deemed to be an accord and satisfaction. Continental may
accept such check or payment without prejudice to it's right to recover the
balance due or to pursue any other remedy available to it.
17. USE OF SECURITY DEPOSIT
A. If at any time during the term of this Agreement, any of the rent herein
reserved, or any other amounts due from COMPANY shall be overdue or unpaid,
or in the event of failure by COMPANY to keep and perform any of the terms,
covenants and conditions of this Agreement to be kept and performed by
COMPANY, then CONTINTENTAL, at its option, may appropriate and apply the
entire Security Deposit, or any portion thereof (I) to the payment of such
overdue amounts, and (ii) as compensation to CONTINENTAL for any loss or
damage sustained or suffered by CONTINENTAL due to such breach on the part
of COMPANY. Should CONTINENTAL withdraw any amount from the Security
Deposit as provided herein, COMPANY shall remit to CONTINENTAL, upon
written demand therefor, an amount sufficient to fully replenish the
Security Deposit.
B. COMPANY'S failure to remit any increase in, or any replenishment of the
Security Deposit, as required herein, within five (5) days of written
notice of funds due, shall constitute a default hereunder, entitling
CONTINENTAL to immediately invoke the remedies available to it by law and
this Agreement, including immediate termination of this Agreement.
C. Within thirty (30) days after expiration or other termination of this
Agreement, and upon vacation of the PREMISES and satisfaction of any and
all events of default by COMPANY, including payment of all amounts due and
past due, the Security Deposit shall be returned in full to COMPANY.
D. In the event any bankruptcy, insolvency, reorganization or other
creditor-debtor proceedings shall be instituted by or against COMPANY, the
Security Deposit shall be deemed to be applied first to any rents and/or
other charges due CONTINENTAL for all periods prior to the institution of
such proceedings, and the balance, if any, of Security Deposit may be
retained by CONTINENTAL in partial liquidation of CONTINENTAL'S damages.
E. COMPANY covenants and agrees that it shall not assign or encumber a r
attempt to assign or encumber the Security Deposit, and that CONTINENTAL
shall not be bound by any such assignment, encumbrance or attempt to assign
or encumber.
18. UTILITIES
CONTINENTAL shall furnish the PREMISES with utilities and services to the extent
that they are furnished to Continental under the BASE LEASE. Continental shall
not be liable for, and COMPANY hereby releases and waives any claims against
CONTINENTAL resulting from any failure or interruption of such services. COMPANY
shall pay Continental, as additional rent, for any extraordinary electrical, gas
or water consumption, and any utility costs attributed to equipment installed by
COMPANY.
19. CONDUCT AND WASTE
COMPANY, in its use of the PREMISES, covenants and agrees that it shall:
A. Conduct its operations in an orderly and proper manner. COMPANY shall not
create, generate or permit the creation or generation of vibrations that
might tend to damage the PREMISES; loud noises; the emission of steam,
gases or unpleasant or noxious odors; nor in any manner annoy, disturb or
be offensive to other tenants of the PREMISES and common areas.
B. Be responsible for the conduct, appearance and behavior of its officers,
employees, agents, contractors, customers and invitees on and in the
vicinity of the PREMISES, and upon objection from CONTINENTAL or OWNER,
shall immediately make every reasonable effort to eliminate any
unsatisfactory conduct, appearance or behavior.
C. Not allow garbage, debris or other waste materials (whether solid, liquid
or gaseous) to collect or accumulate on or in the PREMISES or in access or
service areas. COMPANY shall remove debris and other waste materials form
the PREMISES in accordance with all applicable regulations governing such
activity. COMPANY shall keep all lobbies, vestibules and steps with in the
PREMISES free from dirt and rubbish.
D. It is intended that the standards and obligations imposed by this section
shall be maintained and complied with by COMPANY in addition to its
compliance with any present and future governmental laws, rules and
regulations.
20. SECURITY
COMPANY shall adopt and enforce appropriate procedures to prevent unauthorized
access to CONTINENTAL'S operations areas and aircraft, on the part of its
passengers, employees, vendors, licenses, and invitees. Such procedures shall
include, without limitation, a requirement that all COMPANY's employees visibly
display a photographic identification badge on their person at all times while
within an area covered by this Agreement which is not open to the general
public, and a requirement that all passengers and other persons who are present
in such an area be in the COMPANY of, and escorted by, a properly identified
employee of COMPANY. COMPANY further agrees to indemnify, defend and hold
CONTINENTAL harmless with respect to any fine, levy or penalty which may be
imposed upon CONTINENTAL by the Federal Aviation Administration or any other
government authority for violation of any law or regulation pertaining to
aircraft or airport security as a result of ant act or omission on the part of
COMPANY, such indemnity to include all attorney's fees and other costs of
defense incurred in connection therewith.
21. GOVERNMENTAL REQUIREMENTS
COMPANY covenants and agrees, at its sole expense, including payment of fees and
deposits, to procure from all governing authorities asserting jurisdiction over
the operations of COMPANY, all licenses, certificates, permits or other
authorization which may be necessary for the conduct of its operations. COMPANY
shall at all times promptly observe, comply with and execute the provisions of
any and all present and future federal, state and local laws. Rules,
regulations, requirements, orders and directions which may pertain or apply to
the operations of COMPANY and its occupancy of the PREMISES.
22. RULES, REGULATIONS AND ADMINISTRATION
COMPANY shall be responsible for initiating, maintaining and supervising safety
precautions and programs necessary to prevent injury to persons and damage to
property in, on or about the PREMISSES, and shall observe and obey all present
and future rules and regulations issued by CONTINENTAL and OWNER for the conduct
of tenants and subtenants at the PREMISES, including but not limited to those
regulating preservation and security of the PREMISES.
23. MAINTENANCE AND REPAIRS
A. Any construction, addition to, or alteration of the PREMISES required by
COMPANY shall be made by COMPANY at its sole cost and expense, only upon
prior written approval by CONTINENTAL, and if required under the BASE
LEASE, OWNER, and shall, upon expiration or termination of this Agreement,
at CONTINENTAL's option, be promptly removed, with any damage caused
thereby repaired, at COMPANY's sole cost and expense.
B. COMPANY covenants and agrees to maintain the PREMISES, and shall at its
sole cost and expense, make any installations, non-structural repairs,
replacements, redecorating and other maintenance necessary to keep the
PREMISES, and all equipment, fixtures, furnishings and signs therein, in a
clean, neat and orderly condition, save and except (I) normal wear and tear
that could not have been prevented by, reasonable repair and maintenance;
and (ii) damage by fire or other casualty and acts of God or other events
of Force Majeure. All maintenance and repair work undertaken by COMPANY
shall be performed in a good and workmanlike manner, in accordance with
standards of the facility and of a quality and class not inferior to the
original material and workmanship, leaving the PREMISES free of liens for
labor and materials.
C. In the event that, within ten (10) days of receipt of written notice from
CONTINENTAL or OWNER that a repair is necessary, COMPANY fails to commence
and diligently continue to complete such repair, CONTINENTAL, without
obligation to do so, may make such repair, and COMPANY shall promptly
reimburse CONTINENTAL for all costs and expenses incurred thereby.
D. COMPANY covenants and agrees to maintain the PREMISES and conduct its
operations in such a manner that at no time shall it do or permit to be
done any act or thing in, on or in the vicinity of the PREMISES which will
invalidate or conflict with any fire and casualty insurance policies
covering the PREMISES, or any part thereof, or which may create a hazardous
condition or otherwise increase the risk normally attendant upon the
operations contemplated hereunder. COMPANY shall promptly observe and
comply with all present and future rules, regulations and orders of the
Fire Underwriters Association or of any other board or organization which
may exercise similar functions.
E. Any increase in fire or casualty insurance premiums attributable to
COMPANY's acts or omissions under this Agreement, shall be promptly
reimbursed by COMPANY, upon receipt of CONTINENTAL's and/or OWNER's invoice
therefor.
24. SURRENDER
Upon expiration or other termination of this Agreement in accordance with the
provisions herein, COMPANY shall remove all signs, trade fixtures and any other
personal property, repair all damage caused by removal, and surrender the
PREMISES in the clean, neat and orderly condition required herein. In the event
COMPANY fails to surrender possessions as required herein, CONTINENTAL may
reenter and repossess the PREMISES without further notice, any personal property
therein being deemed abandoned by COMPANY. COMPANY hereby waives service of any
notice of intention to reenter and right to redeem that may be granted by
applicable law.
25. RIGHT OF ENTRY
CONTINENTAL reserves the right for itself and OWNER to enter upon the PREMISES
at any time during an emergency to take such action as may be required for the
protection of persons and property, and for any other reasonable purpose,
including without limitation, as access to and egress from areas other than the
PREMISES, and to perform such functions as may be necessary for the maintenance
and operation of the PREMISES, for inspection, repairs, alterations and
improvements, and showing to prospective tenants. Such activity shall not be
cause for abatement of any amount payable to CONTINENTAL by COMPANY, and the
term of this Agreement shall not thereby extend. CONTINENTAL shall make a
reasonable effort to minimize interference with COMPANY's operations during such
activity.
26. TAXES AND FEES
COMPANY agrees to pay, before they become delinquent, all taxes (both general
and special), and all assessments, fees and charges of any kind whatsoever,
levied or assessed against the leasehold estate created hereby in the PREMISES,
any property of COMPANY located thereon, and any business conducted by COMPANY
thereon. COMPANY agrees to use its best efforts to cause the leasehold estate in
the PREMISES, and its personal property and business operations to be assessed
and taxed separately from the BASE LEASE and the PREMISES. On demand by
CONTINENTAL, COMPANY shall furnish CONTINENTAL with satisfactory evidence that
such payments required from COMPANY have been made. In the event that
Continental shall be assessed any taxes or fees relative to the leasehold estate
in the PREMISES or any of COMPANY's leasehold improvements, equipment,
furniture, fixtures, personal property or business operations, COMPANY shall
reimburse such amount to CONTINENTAL within five (5) days after receipt of a
written statement thereof.
27. FORCE MAJEURE
Notwithstanding anything to the contrary herein contained, neither party shall
be deemed in violation of this Agreement if it is prevented from performing any
of its obligations hereunder, except making rental and any other payments due,
by any labor or industrial dispute; civil disturbance; vandalism or act of a
public enemy; shortage of labor, energy or material; court order, regulation,
action or non-action of any governmental authority; weather condition; natural
disaster; act of God; or other circumstance not reasonably within its control,
and which, with the exercise of due diligence, it is unable to overcome;
provided, however, that nothing in this Section 27 shall extend the time for
performance by COMPANY unless the time for performance by CONTINENTAL is
extended for such reason under the BASE LEASE. Each party shall give the other
immediate notice of such interruption, shall make all reasonable efforts to
eliminate it as soon as possible, and at its conclusion, shall resume
performance in accordance with its obligations hereunder. Neither party shall be
required by the foregoing to settle or compromise any strike or other labor
dispute.
28. RELATIONSHIP
The relationship between COMPANY and CONTINENTAL shall be that of independent
contractor for all purposes and nothing herein shall be construed to create or
imply an employer/employee, agency, partnership, joint venture or other
relationship, it being acknowledged that each of the parties is engaged in its
own separate and distinct business, and is not under the control of the other
party in the performance of the agreements herein contained. No person employed
by either shall be held or construed to be an employee or agent of the other
under any circumstances. Each party assumes full responsibility for any and all
liability to its own employees on account of injury, or death resulting
therefrom, sustained in the course of their employment. Each party, with respect
to its own employees, accepts full and exclusive liability for payment of
Workers' Compensation and employer's liability insurance premiums with respect
to such employees, and for payment of all taxes, contributions or other payments
for unemployment compensation or old age benefits, pensions, or annuities now or
hereafter imposed upon employers by any government or agency thereof asserting
jurisdiction in respect of such employees measured by the wages, salaries,
compensation or other remuneration paid to such employees, and agrees to make
such payments and to make and file all reports and returns and to do everything
necessary to comply with the laws imposing such taxes, contributions or
payments.
29. INDEMNIFICATION
A. RELEASE
COMPANY hereby covenants and agrees that, anything in this Agreement to the
contrary notwithstanding, CONTINENTAL shall not be liable for (a) any acts
or omissions of, or for any condition resulting from, the operations or
activities of any person, firm or corporation, or its officers, directors,
agents, employees, customers, invitees, vendors, or contractors relating to
or arising out of this Agreement, or (b) any loss or damage to any property
or the death or injury of any persons (including property of COMPANY, or
its officers, directors, employees, agents, customers, vendors, contractors
or invitees). Occasioned by theft, fire acts of God, or any governmental
body or authority, injunction, riot, war, other tenants or the PREMISES, or
any other matter beyond the control of CONTINENTAL, or any damage or
inconvenience which may arise through repair, or alteration of the
PREMISES, or failure to make repairs, or unavailability of utilities or for
any cause whatsoever, except the gross negligence or willful misconduct of
CONTINENTAL.
B. INDEMNITY
Anything in this Agreement to the contrary notwithstanding, and without
limiting COMPANY's obligation to provide insurance pursuant to insurance
provisions herein, COMPANY covenants and agrees that it shall protect,
indemnify, defend and hold harmless, CONTINENTAL, its parent and
subsidiaries, OWNER and their respective predecessors and former, present
and future directors, officers, employees, agents, successors and assigns
(the "Indemnitees"), From and against all liabilities, losses damages,
penalties, claims, costs, charges and expenses, causes of action and
judgments of any nature whatsoever, including, without limitation, fees and
disbursements of counsel incurred by any Indemnitee in any action or
proceeding between COMPANY and any Indemnitee, or between any Indemnitee
and any third party or otherwise which may be imposed upon or incurred by
the Indemnitees by reason or arising out of ant of the following (even if
caused by the ordinary negligence of any Indemnitee, but not if caused by
the gross negligence or willful misconduct of the Indemnitees):
1) Any occupancy, management or use of the PREMISES, or common areas or
the service areas, parking areas, or pedestrian areas in the vicinity
of the PREMISES, by COMPNAY or any of its directors, officers, agents,
contractors, servants, employees, licensees, invitees, successors and
assigns;
2) Any act of omission of COMPANY or any of its directors, officers,
agents, contractors, servants, employees, licensees, invitees,
successors and assigns;
3) Any accident, injury to or death of any person, or damage to or
destruction of any property occurring on or in the vicinity of the
PREMISES caused by COMPANY or any of its employees, agents,
subcontractors or invitees, including but not limited to aircraft,
interference with CONTINENTAL's operations, and loss of use;
4) Any failure on the part of COMPANY to comply with any of the
covenants, agreements, terms or conditions contained in this
Agreement, the BASE LEASE or any law, rule, regulation, requirement,
order or directive for which it is responsible;
CONTINENTAL shall promptly notify COMPANY of any such claim asserted against it
and forward copies of all papers or legal process served upon it in connection
with any action or proceeding brought against any Indemnitee by reason of any
such claim.
C. CITY HELD HARMLESS
In addition to the provisions of Section 29 herein, Lessee shall indemnify,
defend, keep and hold City, including Board and the City's officers,
agents, servants, and employees, harmless from any and all costs,
liability, damage, or expense (including costs of suit and fees and
reasonable expenses of legal services) claimed by anyone by reason of
injury to or death of persons or damage to or destruction of property
including property of Lessee, sustained in, on, or about the demised
premises or arising out of Lessee's use or occupancy thereof, or as a
proximate result of the acts or omissions of Lessee, its agents, servants,
or employees.
30. ENVIRONMENTAL OPERATIONS
COMPANY covenants and agrees:
A. That it shall not cause or permit any Hazardous Material to be brought upon
the PREMISES without the written consent of CONTINENTAL and OWNER, and
shall advise CONTINENTAL of any known or suspected environmental
contamination;
B. That its operations shall at all times remain in compliance with:
1) CONTINENTAL's and OWNER's written restrictions and requirements
governing the identification and use of chemical and petroleum
products;
2) All orders and regulations promulgated by the Occupational, Safety and
Health Administration and by the Environmental Protection Agency,
and all other federal, state and local laws, rules, regulations,
requirements, orders and directive governing safety, the environment
and hazardous and toxic substances;
C. That it shall:
1) secure at its own expense, all required permits, licenses and
authorizations necessary for such compliance;
2) advise CONTINENTAL and OWNER of any notice of potential or actual
non-compliance;
3) immediately upon receipt, provide CONTINENTAL and OWNER with copies of
any notice or notices relating to non-compliance:
4) allow CONTINENTAL's and OWNER's designated representative the
unrestricted right to inspect and review its on-premises operations
and equipment. Unless necessary in an emergency situation, neither
CONTINENTAL's nor OWNER's representatives shall purposefully interfere
with or inhibit COMPANY's operation.
D. That all notices, copies and correspondence relating to this Section shall
be delivered as described in the NOTICE provision of this Agreement to the
following address, or to any address subsequently provided by proper
notice. Copies of such material shall be hand-delivered to CONTINENTAL's
on-site representative upon request:
Continental Airlines, Inc.
Environmental Affairs
0000 Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
E. As used herein, the term "Hazardous Material" includes any hazardous,
explosive, radioactive, or toxic substance, material, or waste which is or
becomes regulated by any local governmental authority, the state in which
the Sublease PREMISES is located or the United States, including, without
limitation, any material or substance which is (a) defined or listed as a
"hazardous waste," "extremely hazardous waste," "restricted hazardous
waste," "Hazardous substance," "hazardous material," "pollutant," or
"contaminant" under any Law, (b) a radioactive material, (c) a
polychlorinated biphenyl, (d) asbestos or an a asbestos derivative, (e)
urea formaldehyde foam insulation, or (f) radon gas.
31. INSURANCE ENDORSEMENTS
COMPANY shall cause the required insurance coverage to be duly and properly
endorsed by it insurance underwriters to provide that:
A. CONTINENTAL, OWNER, and their respective officers, directors, agents and
employees are named as additional insured thereunder to the extent of
COMPANY's obligation to indemnify them under this Agreement, where allowed
by law.
B. The policies shall include a standard cross liability clause.
C. COMPANY's insurance shall be primary insurance and that any other insurance
policy or policies of CONTINTENTAL and OWNER are noncontributory, secondary
or excess insurance.
D. COMPANY's policy expressly insures COMPANY's contractual liability assumed
by COMPANY under this Agreement.
E. COMPANY's insurers waive all right of subrogation against CONTINENTAL and
OWNER, and their respective directors, officers, agents and employees and
their insurers.
F. CONTINENTAL shall be given thirty (30) days prior, written notice of any
cancellation, or other material or adverse change.
G. COMPANY's insurers agree that COMPANY's breach of any warranty set forth in
its policy of insurance will not invalidate the insurance as to CONTINENTAL
and OWNER.
Upon execution of this Agreement, and upon any reasonable request by
CONTINENTAL, COMPANY shall forthwith supply CONTINENTAL with certificates of
insurance as evidence of the insurance coverage and endorsements required
herein. COMPANY agrees that the terms of these insurance requirements may be
revised, and the minimum coverages may be increased upon the written demand of
CONTINENTAL, which demand shall be based on reasonable and justifiable grounds.
32. SURVIVAL OF TERMS
Termination of this Agreement or any part thereof by notice, expiration of term
or otherwise, shall not relieve COMPANY of any liabilities or obligations
accrued on or prior to the date of termination, and the indemnities and
insurance provisions contained or referred to herein shall remain in effect and
shall survive the expiration or other termination of this Agreement.
33. TERMINATION
Without limiting any rights of CONTINENTAL to terminate this Agreement as may be
afforded by operation of law, this Agreement shall also be terminated at the
option of CONTINENTAL, as follows:
A. Immediately upon the termination or expiration of the BASE LEASE or any
portion thereof relating to the PREMISES, or upon expiration or termination
of CONTINENTAL's right to grant to COMPANY the right to occupy and use the
PREMISES as contemplated herein, in which event COMPANY shall have no claim
for the unexpired term hereof; provided, CONTINENTAL during the term hereof
agrees to take no action which would cause expiration or termination of the
BASE LEASE, except that CONTINENTAL shall not be limited from exercising
any option set forth in the BASE LEASE triggered upon the occurrence of any
condemnation, fire or other casualty to the PREMISES or to the BUILDING of
which the PREMISES are a part.
B. Immediately and without notice to COMPANY in the event that COMPNAY files a
voluntary petition in bankruptcy or that proceedings in bankruptcy shall be
instituted against COMPANY and not dismissed within one hundred twenty
(120) days, or that a court shall take jurisdiction of COMPANUY or its
assets pursuant to proceedings brought under the provisions of any federal
reorganization act, or that a receiver of COMPANY's assets shall be
appointed and such taking or appointment shall not be stayed or vacated
within a period of thirty (30) days.
C. Immediately upon written notice to COMPANY, if COMPANY fails to pay any
installment of rent or additional rent within ten (10) days after such
amount is due.
D. Immediately upon written notice to COMPANY, if COMPANY fails to perform,
keep, and observe any the covenants, terms and conditions which COMPANY is
obligated herein to perform, keep and observe, except that termination
shall be stayed as long as COMPANY cannot reasonably cure such default
immediately, and as long as COMPANY is diligently proceeding to cure such
default (but in no event shall termination be stayed for more than 60
days).
E. Immediately by either party upon the acquisition or condemnation of the
PREMISES by eminent domain, in which event COMPANY shall have no claim (I)
for the unexpired term hereof, or (ii) any part of the award made for the
PREMISES, but may claim any award or its personal property.
F. Abandonment of the PREMISES by COMPANY for more than 48 hours, unless due
to circumstances beyond COMPANY's reasonable control.
In the event that this Agreement is terminated in accordance with the foregoing
prior to the expiration of the term hereof, or during any extension thereof,
CONTINENTAL may relet the PREMISES for any term and under any conditions it may
deem satisfactory, which shall not affect or impair CONTINENTAL's right to
recover actual damages occasioned by any default by COMPANY.
34. NON-DISCRIMINATION AND EQUAL OPPORTUNITY
COMPANY, for itself, its successors in interest and assigns, as a part of the
consideration hereof, as a covenant running with the land, covenants and agrees
that it shall not discriminate by segregation or otherwise against any person
the use of the PREMISES, or any services. Privileges, accommodations, or
activities provided by COMPANY, and to be bound by and to perform in accordance
with all applicable provisions and requirements of all federal, state and local
laws, executive orders and regulations issued pursuant thereto, including
without limitation, and to the extent applicable to this Agreement, the
provisions contained within:
A. The Fair Labor Standards Act.
B. The Equal Opportunity clause set forth in 41 CFR Parts 60-1 et seq.,
pursuant to the requirements of Section 202 of Executive Order 11246, as
amended, and the implementing regulations of the Office of Federal Contract
Compliance Programs.
C. Contractual requirements of the Rehabilitation Act of 1973 as set forth in
41 CFR Sec 60-741.4; and of the Vietnam Era Veterans Readjustment Act of
1974 as set forth in 41 CFR Sec. 60-250.4.
D. The requirements of the Occupational Safety and Health Act and regulations
issued thereunder;
E. Titles I, II, III, IV, and V of the Americans with Disabilities Act of 1990
As the foregoing may be amended or replaced, which provisions are
incorporated herein by reference as if set forth in full. By execution of
this Agreement each party represents and warrants compliance with the
aforementioned regulations and will furnish proof thereof on demand.
F. COMPANY covenants and agrees to release, indemnify, hold harmless and
defend OWNER and CONTINENTAL, its parent and subsidiaries and their
representative directors, officers, employees, agents, successors and
assigns from and against any and all claims, liabilities, losses, expenses,
damages, causes of action and judgment of any nature whatsoever, including
but not limited to reasonable attorney, consultant and expert fees, costs
and related expenses; and including, but not limited to clean-up or other
curative measures ordered by the Occupational, Safety and Health
Administration or the Environmental Protection Agency or any other federal,
state or local agency or entity asserting jurisdiction; arising out of the
discharge, disbursal, release orescape of any hazardous substance, toxic
chemical pollutant, contaminant or irritant, in solid, liquids or gaseous
form, arising out of or in any manner connected with any act or omission of
COMPANY or its directors, officers, agents, contractors, servants,
employees, licensees, invitees, successors and assigns.
G. COMPANY further covenants and agrees to:
1) Indemnify and defend CONTINENTAL and OWNER from and against any and
all claims, liabilities, losses and judgments arising out of COMPANY's
failure to comply with these provisions; and
2) Include and require inclusion of these provisions in all agreements
regarding the PREMISES, including, without limitation, those of its
contractors, subcontractors, successors and assigns.
35. NON-DISCRIMINATION BREACH
In the event of any breach of any of the above non-discrimination covenants,
CONTINENTAL shall have the right to terminate this Agreement and to reenter and
repossess the PREMISES, and hold the same as if this Agreement had never been
made or issued. This provision shall not be effective until the procedures of
Title 49, CFR Part 21 are followed and completed, including exercise or
expiration of appeal rights.
36. SEVERABILITY
If any term or provision of this Agreement or the application thereof to any
person or circumstance shall, to any extent, be declared invalid or
unenforceable by a court of competent jurisdiction, such invalidity shall not
affect or impair the remainder if this Agreement or its application to any other
person or circumstance, and this Agreement shall not be affected or impaired
under any circumstance or in any jurisdiction where such provision remains
valid.
37. COLORADO LAW
THIS AGREEMENTSHALL BE CONTRUED AND PERFORMANCE THEREOF SHALL BE DETERMINED
ACCORDING TO THE LAWS OF THE STATE OF COLORADO
38. TIME IS OF THE ESSENCE
The parties expressly agree that time is the essence of this Agreement and of
every provision hereof. Failure by a party to complete performance within the
time specified, or within a reasonable time if no time is specified herein,
shall, without prejudice of any other rights or remedies, relieve the other
party of any obligation to accept such performance.
39. QUIET ENJOYMENT
CONTINTENTAL agrees that upon payment of the rents and other payment due, and
performance of the covenants and agreements on the part of COMPANY to be
performed hereunder, COMPANY shall peaceably have and enjoy the PREMISES subject
to an event of Force Majeure and to the terms and conditions herein.
40. LIENS
COMPANY shall not allow any condition to exist o situation to develop whereby
any party would be entitled, as a matter of law, to a lien against the PREMISES,
and agrees to indemnify, release, defend and hold CONTINENTAL and OWNER harmless
from and against any and all costs, expenses and claims arising therefrom.
41. WAIVER
No waiver by either party at any time of any of the terms, conditions, covenants
or agreements herein or of any forfeiture, including any delay, failure or
omission of CONTINENTAL to reenter the PREMISES, shall be deemed to taken as a
waiver at any time thereafter of the same or any other term, condition,
covenant, or agreement herein contained, nor of the strict and prompt
performance thereof. No notice shall be required to restore or revive any right,
power, privilege, option or remedy after waiver, and no right, power, privilege,
option or remedy shall be construed as being exhausted or discharged by the
exercise thereof in one or more instances. Each and all of the rights, powers,
privileges, options and remedies given to either party by this Agreement shall
be cumulative, and no one of them shall be exclusive of the other or exclusive
of any remedies provided by law.--
42. ASSIGNMENT
This Agreement and the rights and obligations created hereunder may not be
assigned or delegated by COMPANY without the prior written consent of
CONTINENTAL and OWNER. (If OWNER's consent is required under the BASE LEASE);
but, subject to the foregoing, this Agreement and the rights and obligations of
the parties hereby created, shall be binding upon and inure to the benefit of
the parties hereto, their respective successors, assigns and legal
representatives. CONTINENTAL reserves the right to assign or transfer its
interest hereunder without notice.
43. CAPTIONS
The captions of the articles and sections of this Agreement are inserted for
convenience only, and are not intended and shall not be construed to affect in
any manner the terms and conditions hereof, or the interpretations or
construction thereof.
44. APPROVAL BY OWNER
The parties hereto agree that this Agreement is subject to the consent and
approval of OWNER. If written consent thereto is denied, either party may, at
its option, but without limiting any rights that may exist for any breach of
this Agreement shall thereafter become null and void, and the parties shall
become discharged form all liabilities hereunder attributable to the period of
time after such rescission.
45. ENTIRE AGREEMENT
This Agreement, including any exhibits and inclusions by reference, contains the
entire understanding between the parties hereto, and supersedes and revokes all
previous negotiations, arrangements, letters in intent, offers, proposals
representations, and information conveyed, whether oral or in writing, between
the parties hereto or their respective representatives or any person purporting
to represent either. COMPANY acknowledges that it has not been induced to enter
into this Agreement by any representation or construction of this Agreement, and
agrees that CONTINENTAL shall have no liability for any consequences arising as
a result of such representation.
No amendment, change or addition to this Agreement shall be binding upon either
party hereto unless in writing and signed by the parties hereto and approved by
the Manager of Aviation.
WITNESS THEREOF, the parties hereto have caused this Agreement to be executed as
of the effective date hereof.
CONTINENTAL AIRLINES, INC. FRONTIER AIRLINES, INC.
BY:_________________________ BY:_____________________
TITLE:______________________ TITLE:__________________
DATE:______________________ DATE:__________________
CITY AND COUNTY OF DNEVER
BY:_________________________
TITLE:______________________
DATE:______________________
