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EXHIBIT 10.21
AGREEMENT FOR SKYCAP SERVICES
THIS AGREEMENT entered into as of October 1, 1996, by and
between International Total Services, Inc., an Ohio corporation with its
principal offices at Crown Centre, 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx 00000
("Contractor"), and Delta Air Lines, Inc., a Delaware corporation with its
principal office at Xxxxxxxxxx Atlanta International Airport, Xxxxxxx, Xxxxxxx,
00000 ("Delta").
WITNESSETH:
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WHEREAS, Delta desires to obtain skycap services at the
airport referenced herein for itself and others; and
WHEREAS, Contractor is in the business of supplying such
services and is willing to provide the same for Delta;
NOW, THEREFORE, in consideration of the mutual promises and
covenants hereinafter set forth, the parties hereto agree as follows:
1. TERM. This Agreement shall be effective as of October 1, 1996, and
shall continue in effect until canceled by Delta upon not less than thirty (30)
days' prior written notice, or by Contractor upon not less than sixty (60) days'
prior written notice.
2. SERVICES AND STANDARDS
2.1 During the term of this Agreement, Contractor shall furnish skycap
services to Delta, as that term is generally understood in the air
transportation industry and as more particularly provided in paragraph 2.5 below
(such services are sometimes referred to herein as the "work" or the
"services"), at Xxxxxxx X. Hobby Airport located in Houston, Texas (the
"Airport") at Delta's curbside and, if applicable, any interior check-in
locations, baggage carousels, and, if applicable, at all Delta gates at the
Airport, and Delta retains Contractor to furnish such services and shall pay
Contractor its charges therefor as hereinafter provided. Contractor shall
furnish ALL personnel required to furnish the services in accordance with this
Agreement and, if specified on Exhibit A attached hereto shall also provide
certain material, equipment and supplies, as specified in Exhibit A, such costs
to be included in the fees set forth in Section 3.
2.2 The services provided under this Agreement shall be of the
first class and shall be performed in a timely and professional manner at all
times, with any supplies and equipment provided by Contractor to be of good
quality.
2.3 All personnel utilized by Contractor shall be
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properly attired in uniforms acceptable to Delta and shall be able to perform
the contracted services competently.
2.4 Upon written direction from Delta, Contractor shall
perform skycap services for any person, firm or corporation for which Delta
performs passenger and/or baggage handling services. In such case, such services
shall be at no additional cost to Delta unless Contractor both incurs additional
costs and such costs have been appropriately authorized by Delta.
2.5 Contractor's services shall include but not be
limited to providing Delta with a sufficient number of employees
to:
(a) Provide handling and tagging of bags from
passengers at curbside, and between curbside and the ticket counter, and, if
applicable gates, either inbound or outbound customers.
(b) Provide monitoring of the local baggage
claim areas (carousels) and assist customers with their baggage in this area.
(c) If applicable, provide wheelchair and other
special assistance to Delta's customers, between all gates and ticket counters,
baggage facilities, connecting flights, parking lot or garage, or as otherwise
specified by Delta.
2.6 All services shall be furnished by Contractor as an
independent contractor. All personnel utilized by Contractor in the furnishing
of such services shall be employees of Contractor and under no circumstances
shall be deemed employees of Delta. Contractor shall be fully responsible for
all acts and omissions of such personnel. Contractor shall bear sole
responsibility for payment of compensation to its personnel. Contractor shall
withhold (if applicable), pay and report, for all personnel assigned to Delta's
work, federal, state and local income tax withholding, social security taxes,
employment head taxes, and unemployment insurance applicable to such personnel
as employees of Contractor. Contractor shall bear sole responsibility for any
health or disability insurance, retirement benefits, or welfare, pension or
other benefits (if any) to which such personnel may be entitled. Contractor
agrees to defend, indemnify, and hold harmless Delta, Delta's officers,
directors, employees and agents, and the administrators of Delta's benefit
plans, from and against any claims, liabilities, or expenses relating to such
compensation, tax, insurance, or benefit matters.
2.7 All services performed hereunder shall be performed
in a manner which ensures health and safety. Contractor shall
comply with all laws, rules, regulations and procedures relating to
health and safety. Without limiting the foregoing general
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statements of Contractor's obligations, Contractor shall insure that its
employees wear all personal protective equipment necessary to protect such
employees from potential hazards, including, without limitation, all personal
protective equipment required by applicable laws, rules, regulations and
procedures.
2.8 Contractor shall ensure that all personnel utilized in the
performance of the services required hereunder receive all operational and
safety training necessary for the safe and competent performance of such
services, including, without limitation, any training required by applicable
laws, rules, regulations and procedures. Contractor must maintain documentation
of such training for the longer of three (3) years or the period of time
specified by applicable laws, rules, regulation and procedures. Delta shall have
the right, but not the duty, to conduct audits of such training records as it
deems prudent to ensure compliance with this requirement.
2.9 At all times during which Contractor's employees are
required to be performing the services required under this Agreement, Contractor
agrees to maintain a competent work supervisor (or other employee with
responsibilities for overseeing performance of the services), located in the
general area of the Delta facilities at which the services are to be performed,
and keep Delta's Director/Station Manager (or the Director/Station Manager's
designee in charge) continuously advised of the location(s) and telephone
number(s) where such work supervisor (or other employee with responsibility for
overseeing performance of the services) may be contacted to be advised of
emergencies, worker absences, accidents involving workers or substandard
performance of work. The availability of such work supervisor or other employee
shall in no way obligate Delta to communicate any such information to
Contractor.
2.10 Contractor shall comply with all applicable laws, rules
and regulations which govern the services provided for in this Agreement.
Contractor shall obtain all licenses and permits which may be required by any
governmental authority for the performance of the contracted services and shall
pay all fees and charges therefor. The foregoing obligations are in addition to
those provided in Section 6.
3. FEES.
3.1 Contractor shall xxxx Delta on the first day of each month
an amount calculated in accordance with Exhibit A hereto for services provided
during the preceding month. Delta shall remit payment within thirty (30) days
following receipt of said xxxx. The monthly bills should be sent by Contractor
to the following address:
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Director/Station Manager - HOU Station
Delta Air Lines, Inc.
Houston Hobby Airport
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
3.2 Invoices. If services are performed for more than one air
carrier at an Airport, Contractor shall xxxx Delta for its prorated share of the
services performed as provided in Exhibit A. In no event shall Delta be
responsible for any other air carrier's prorated share of Contractor's fees for
the services performed hereunder.
4. ACCOUNTING RECORDS - With respect to all invoices under this
Agreement, Contractor shall keep full and detailed records and books of account
on the basis of its currently established accounting methods in effect as of the
effective date of this Agreement. Delta, or its nominee, shall at all times
during regular business hours have the right to audit and have access to the
books of account, receipts and records pertaining to invoices hereunder by
Contractor. Delta shall also be afforded access to all the Contractor's other
records, books, correspondence, instructions, memoranda and similar data
relating to this Agreement and any of the work or services provided hereunder.
Contractor shall preserve such documents and other records to which Delta has
access rights under this Section 4 without additional compensation therefor a
period of three (3) years, or such longer period as may be required by law,
after termination or expiration of this Agreement. If as a result of any such
audit or otherwise it is determined that Delta has paid any excess charges for
the work, Delta shall be entitled to immediate refunds for any such excess
charges paid by Delta.
5. TERMINATION OF AGREEMENT AND REDUCTION IN WORK.
5.1 Contractor may stop the work or otherwise terminate this
Agreement if Delta shall fail to make payment of undisputed amounts when due, in
accordance with Section 3, after ten (10) days written notice by Contractor to
Delta of such failure of payment.
5.2 Delta reserves the right to reduce the scope of work to be
performed hereunder upon not less than fifteen (15) days written notice to
Contractor. Any reduction in scope shall be accompanied by an appropriate
decrease in the fee specified in Section 3 and in EXHIBIT A hereof.
5.3 If the Contractor files for bankruptcy, has an involuntary
petition filed against it which is not dismissed within thirty (30) days,
dissolves, is insolvent, fails to promptly pay for materials or services for
which it has received payment from Delta, creates or permits the creation of any
lien on any property or premises of Delta, makes an assignment or arrangement
for the
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benefit of its creditors, refuses or neglects to perform the work properly and
diligently (including failure to perform as a result of strike, walkout, or
labor dispute affecting Contractor or others), is in default under any other
agreement between the parties or fails to perform any of the provisions of this
Agreement or any other agreement between the parties, Delta may, at its option,
by written notice to Contractor, declare Contractor in default, terminate
Contractor's right to proceed with all or a part of the work, and take control
or possession thereof and of materials, vehicles, equipment, supplies, tools and
facilities and finish such terminated work by such means as it sees fit;
provided, however, with respect to any refusal or neglect by the Contractor to
perform the work properly and diligently, or failure to perform under other
provisions of this Agreement, the Contractor shall have ten (10) days from
receipt of written notice of such default from Delta to cure the default. Upon
termination pursuant to this provision or Section 1, Contractor shall thereupon
assign to Delta any contracts for goods or services, if any, selected by Delta
to be so assigned.
5.4 If Delta terminates this Agreement, Delta shall pay the
unpaid balance of Contractor's charges as stated in Section 3 for the period up
to and including the date of termination. Delta can deduct from the amount due
hereunder any amount that Delta may be required to pay to a third party due to
the nonpayment by Contractor of any amount and any damages, costs or expenses
Delta may incur or suffer in the event said termination is made pursuant to
Section 5.3. Contractor shall, as a condition of receiving the payments referred
to in this Section 5, execute and deliver to Delta any and all instruments that
may be required to transfer property to Delta, or otherwise required for the
orderly termination of this Agreement.
5.5 Delta reserves the right to retain Contractor's
subcontractors, if any, and all or any part of Contractor's employees executing
the work may, at Delta's option, become employees of Delta or another contractor
selected by Delta. Upon termination or expiration of the Agreement, Delta shall
take possession of all materials, vehicles, equipment, supplies, tools and
facilities owned by Delta.
5.6 In the event that Delta's flight operations at the Airport
are halted or substantially decreased for any reason, this Agreement (and
payment for services hereunder) may be suspended for the duration of such halted
or decreased operations, on twenty-four (24) hours' notice by Delta to
Contractor.
6. SECURITY CONSIDERATIONS. Contractor agrees that in the
performance of this Agreement it is of paramount importance to
maintain the security and safety of passengers, the general public
and all personnel employed at the Airport and to safeguard the
security and integrity of all personal, public and corporate
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property. In this regard, Contractor agrees, in accordance with applicable laws,
to take those actions necessary to accomplish this purpose, including but not
limited to the actions outlined in this Section 6.
6.1 BACKGROUND CHECKS
6.1.1 Contractor warrants and agrees that it has
performed and will continue to perform employment and access investigations in
accordance with Delta's Air Carrier Standard Security Program as approved by the
Federal Aviation Administration (the "FAA"), as in effect from time to time,
including, without limitation, the requirements of 49 U.S.C. ss. 44936 and the
FAA's regulations promulgated pursuant thereto at 14 C.F.R. Parts 107 or 108, of
all persons hired by Contractor who have unescorted access to any area on an
airport controlled for security reasons. Such employment and access
investigations shall include, without limitation, employment histories and
verifications, verifications of identify and, in certain cases, criminal history
record checks as more particularly required in said regulations.
6.1.2 Contractor shall also perform background
checks, to the extent allowable by applicable law, which will include, but not
be limited to, a five year criminal history check for all persons Contractor has
hired or will hire. Further, for all persons Contractor has hired or will hire
who may operate a motor vehicle on the Airport Operating Area (the "AOA"),
Contractor will also conduct a five year check of the person's state motor
vehicle record.
6.1.3 Employment and access investigations,
background checks and motor vehicle checks shall be completed for all persons
prior to Contractor allowing such persons unescorted access to any airport area
controlled for security reasons or allowing such persons to operate motor
vehicles on the AOA.
6.2 Drug Testing. Contractor warrants and agrees that, on or
before the effective date of this Agreement, and to the extent required by
applicable laws, regulations and orders, it will establish and thereafter
maintain a drug testing program for those personnel, if so employed by the
Contractor, who perform sensitive safety related and security related functions
as defined by the FAA's Anti-Drug Program for Personnel Engaged in Specified
Aviation Activities (the "FAA's Anti-Drug Program"). Contractor agrees that such
program will comply with all requirements set forth by the FAA. To the extent
permitted by law, if Contractor employs personnel who are not covered by the
FAA's Anti-Drug Program but who will have unescorted access to any airport area
controlled for security reasons, such personnel shall be subject to
preemployment drug testing by Contractor for the same substances and in
accordance with the same procedures as required by the FAA's Anti-Drug Program.
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6.3 Additional Requirements. Contractor also agrees to
undertake whatever other measures are necessary to comply with security, drug
and alcohol testing, record-keeping, and other requirements appropriate to the
areas to which Contractor has access or to the work performed by Contractor
under this Agreement that are imposed from time to time by public agencies such
as the FAA, the United States Postal Service, the United States Customs Service,
and the operator of the Airport (the "Airport Operator") or by Delta.
6.4 Audit of Employment Records. Contractor shall keep at the
Airport full and detailed records demonstrating its compliance with this Section
6 as to each employee and shall maintain and preserve such records without
additional compensation therefor for a period of three (3) years after
termination or expiration of this Agreement. Delta shall have the right, but not
the duty, to conduct such audits of Contractor's employment records as it deems
prudent to ensure Contractor's compliance with this Section 6. Delta may
terminate this Agreement immediately if it finds any evidence which indicates
that Contractor has not complied with the obligations imposed by this Section 6.
6.5 Security of Property. Maintaining the security of the
property of Delta and of its employees, agents, customers and invitees is an
essential aspect of Contractor's performance under this Agreement. To the extent
allowable by applicable law, Contractor shall conduct random searches of its
employees' lunch boxes, bags, cases, containers and other items in which such
property could be concealed. In the event that Delta is not satisfied with the
effectiveness of Contractor's program of random searches, Delta may require
Contractor to increase the frequency of such searches. Contractor shall
emphasize to its employees the importance of ensuring the security of the
property of Delta and of Delta's employees, agents, customers and invitees and
shall in accordance with applicable law, properly notify its employees of the
existence and extent of the random search program prior to instituting such
program.
7. INSURANCE.
7.1 At all times during the term of this Agreement,
Contractor, with respect to the operations and services contemplated in this
Agreement, agrees to carry and maintain at its own cost and expense
Comprehensive General Liability Insurance for an amount of not less than
$5,000,000 combined single limit on an occurrence basis for bodily injury and
property damage. This insurance shall include contractual liability and shall be
in such form as reasonably required by Delta. The insurance shall name Delta as
an additional insured to the extent of Contractor's indemnity obligations
hereunder and shall contain a standard cross-liability endorsement.
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7.2 Contractor agrees to maintain Workers' Compensation
Insurance for statutory limits and Employer's Liability Insurance in the amount
of $1,000,000 to cover its employees. Contractor agrees to be solely and fully
responsible for the payment of all Workers' Compensation benefits for its
employees.
7.3 Contractor shall obtain the insurance required by this
Agreement from a financially sound insurance company of recognized
responsibility and shall furnish Delta with a certificate of insurance
evidencing such coverage prior to commencing its services under this Agreement.
Such insurance policies shall be considered primary, without contribution from
any insurance carried by Delta. All insurance policies shall provide that the
insurance shall not be invalidated by any action or inaction of Contractor, that
Contractor agrees to waive all rights of subrogation against Delta and that the
insurance shall continue in full force and effect for at least thirty (30) days
after Delta receives written notice of cancellation, termination or material
alteration.
8. INDEMNIFICATION. To the fullest extent permitted by law, Contractor
shall release, indemnify, defend and hold harmless Delta, and its directors,
officers, employees and agents (collectively, the "Indemnified Parties" and
individually, an "Indemnified Party") from and against any and all claims,
damages, losses, fines, civil penalties, liabilities, judgments, costs and
expenses of any kind or nature whatsoever, including, but not limited to,
interest, court costs and attorneys' fees, which in any way arise out of or
result from any act(s) or omission(s) by Contractor (or anyone directly or
indirectly employed by Contractor or anyone for whose acts Contractor may be
liable) in the performance or nonperformance of services or other obligations
under this Agreement or in the use or occupancy of any facilities or equipment
provided by Delta, including, but not limited to, injury to or death of any
person, damage to or destruction of any property, real or personal (including,
but not limited to, property owned, leased or under the control of Delta), and
liability or obligations under or with respect to any violation of federal,
state and local laws, regulations, rules, codes and ordinances (including, but
not limited to, those concerning environmental protection). This Section shall
apply regardless of whether or not the damage, loss or injury complained of
arises out of or relates to the negligence (whether active, passive or
otherwise) of, or was caused in part by, an Indemnified Party. However, nothing
contained in this Section shall be construed as a release or indemnity by
Contractor of an Indemnified Party from or against any loss, liability or claim
to the extent arising from the gross negligence or willful misconduct of that
Indemnified Party. This Section shall not be construed to negate, abridge or
otherwise reduce any other right to indemnity which would otherwise exist in
favor of any Indemnified Party, or any obligation of Contractor, its officers,
directors, employees, agents or contractors to
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indemnify an Indemnified Party. Contractor's obligations under this Section
shall not be limited in any way by any limitation on the amount or type of
damages, compensation or benefits paid or payable by Contractor under Workers'
Compensation Acts, disability benefits acts or other employee benefit laws or
regulations. The indemnification obligations of this Section shall survive
termination or expiration of this Agreement.
9. NOTICES. Any notices, requests or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand, by overnight courier, or by facsimile transmission ("fax"), or mailed by
United States registered or certified mail, return receipt requested, postage
prepaid, and addressed to the appropriate party at its address or to its fax
number, as appropriate, as set forth below:
Contractor: INTERNATIONAL TOTAL SERVICES, INC.
Crown Centre
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx XxXxxxxx
Fax No.: (000)000-0000
Delta: DELTA AIR LINES, INC.
0000 Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: ACS Business Partners - Dept. 108
Fax No.: (000)000-0000
Any such notice, request, or other communication shall be considered given on
the date of hand or courier delivery if delivered by hand or overnight courier,
on the date of receipt if delivered by fax, or on the date of deposit in the
United States mail as provided above. Rejection or other refusal to accept or
inability to deliver because of changed address or fax number of which no notice
was given shall not affect the validity or the effectiveness of the notice,
request or other communication. By giving at least ten (10) days' prior written
notice thereof, either party may from time to time and at any time change its
mailing address or fax number hereunder.
10. SERVICES FOR HANDICAPPED. Consistent with the Air Carrier Access
Act of 1986 and 14 C.F.R. 382, Contractor shall not discriminate on the basis of
handicap in performing services under this Agreement. In any matter relating to
the Contractor's provision of services under this Agreement to handicapped
individuals, Contractor's employees shall comply with any directives of Delta's
Complaints Resolution Officials (CROS) which are issued under 14 C.F.R. 382.65.
11. CONSENT. The Airport Operator's consent to this
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Agreement may be necessary. In the event such consent is required and is denied,
this Agreement shall terminate and Contractor shall immediately vacate and
surrender the Airport.
12. FORCE MAJEURE. In the event that Delta's flight operations at the
Airport are halted or substantially decreased by reason of strike, labor
dispute, picketing, action or interference of governmental authorities, riots,
terrorist attack, act of God or other cause reasonably beyond the control of
Delta, this Agreement (and payment for services hereunder) may be suspended for
the duration of such halted or decreased operations, on twenty-four (24) hours'
notice addressed by Delta to Contractor.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia, excluding its laws regarding
conflict or choice of law and Contractor voluntarily submits itself to the
jurisdiction of the state and federal courts situated in Xxxxxx County, Georgia,
for any dispute arising hereunder.
14. SUBCONTRACTS, ASSIGNMENT. Contractor shall not subcontract out or
delegate the services to be provided hereunder without the prior written consent
of Delta. All subcontracts must be approved in writing by Delta prior to
execution and shall conform to any applicable requirements of this Agreement.
This Agreement shall not be assigned, in whole or in part, by either party
without the prior written consent of the other party. Subject to the foregoing,
this Agreement shall be binding upon and inure to the benefit of the parties,
their respective successors and assigns.
15. ENTIRE AGREEMENT. This Agreement, including all Exhibits hereto
(which exhibits are incorporated herein by reference), constitutes the complete
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior negotiations, agreements, representations and
understandings, if any, between the parties concerning the same, whether written
or oral.
16. MODIFICATIONS AND AMENDMENTS. This Agreement shall not be modified
or amended in any respect except by written instrument duly executed by or on
behalf of each of the parties to this Agreement.
17. NO WAIVER. No provision of this Agreement shall be deemed to have
been waived by Delta unless such waiver is in writing and signed by Delta, nor
shall any custom or practice which may evolve between the parties in the
administration of the terms hereof be construed to waive or lessen the right of
Delta to insist upon the performance by Contractor in strict accordance with the
terms hereof
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18. REMEDIES CUMULATIVE. Each fight and remedy of Delta provided for in
this Agreement, or now or hereafter existing at law, in equity or by statute or
otherwise, shall be cumulative and concurrent, and the exercise or beginning of
the exercise of any one or more of such rights or remedies shall not preclude
the exercise of that right or remedy in the future or the exercise of any other
right or remedy at any time.
19. SEVERABILITY. If any provision of this Agreement shall be
determined to be illegal, invalid or unenforceable, the remainder of this
Agreement shall not be affected thereby and shall remain valid and enforceable
to the fullest extent permitted by law.
20. NONDISCRIMINATION. The provisions of Schedule 1, attached hereto,
are incorporated herein for all purposes.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their duly authorized representatives as of the date and year
first written above.
INTERNATIONAL TOTAL SERVICES, INC. DELTA AIR LINES, INC.
By _____________________________ By ______________________
Printed Printed
Name ___________________________ Name _____________________
Title __________________________ Title _____________________
Date ___________________________ Date ______________________
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