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HomeMy WebLinkAboutbocc.con.025.21 - BOCC1 INDEPENDENT CONTRACTOR PROFESSIONAL SERVICES AGREEMENT Air Service Development, Restoration & Maintenance For and in consideration of the performance of the mutual promises and agreements set forth herein, Aspen Skiing Company, LLC ("ASC") and Tomcich Travel Consulting, LLC (“Contractor”) (collectively the “Parties”) have entered into this Independent Contractor Professional Services Agreement (“Agreement”) effective January 1, 2021. 1.Independent Contractor Status. Contractor is an independent contractor with ASC. Contractor shall have the sole responsibility for determining the proper methods and means for performing the tasks which are the subject of this Agreement, except as otherwise expressly set forth herein. T he parties expressly agree and acknowledge that none of the terms of this Agreement are intended to or shall be construed to create any relationship other than that of an independent contractor. Contractor shall not represent to any of its employees or to any third party that Contractor is an ASC employee. Contractor acknowledges that it, its employees, and subcontractors are not entitled to any workers’ compensation, disability or any other benefits provided by ASC to its employees. Contractor further acknowledges that it is solely responsible and obligated to pay federal and state income tax on any money earned pursuant to the contractual relationship created by this Agreement._____________ (Contractor’s Initials) 2.Scope of Services. The tasks to be performed by Contractor under this Agreement ("the Services") shall consist of the performance of the Services set out in Exhibit A attached hereto and made a part hereof by this reference. Contractor and ASC acknowledge and agree that while Contractor is providing the Services directly to ASC pursuant to this Agreement with ASC, such Services are being performed for the benefit of the Fly Aspen Snowmass participating entities, ASC, the Aspen Chamber Resort Association (“ACRA”), the Town of Snowmass Village through its Snowmass Tourism department (“TOSV”), and Pitkin County Aspen Airport (collectively such entities may be referred to herein as “the Fly Aspen Snowmass entities”). All deliverables shall be provided to ASC and distributed to the Fly Aspen Snowmass entities consistent with prior distribution of similar materials by Stay Aspen Snowmass to Fly Aspen Snowmass. 3.Term and Termination of Services. a.The Services shall be commenced upon the effective date hereof and after commencement, shall be continued with reasonable diligence and in a good and professional manner for the duration of the Contract Term as defined below. The Services shall be provided or performed during the period commencing on January 1, 2021 and concluding December 31, 2021 unless ASC provides Contractor with written notice by no later than December 1, 2021 that it desires to extend the term of this Agreement by one additional year, in which case the S ervices shall conclude on December 31, 2022 (such period, with the extension solely if exercised, the “Contract Term”). b.In the event ASC or any Fly Aspen Snowmass entity becomes dissatisfied with the quality and/or timing of Contractor’s services, and determines in good faith that Contractor is not adequately Contract No. 025.2021 - BOCC 2 providing the Services as contemplated herein, ASC shall provide Contractor with written notice detailing to Contractor the material deficiencies in Contractor’s Services. Contractor shall have thirty (30) days to remedy such material deficiencies to the reasonable satisfaction of ASC. In the event Contractor fails to remedy such material deficiencies, Contractor’s failure shall constitute a material breach of this Agreement and ASC shall thereupon have the right to terminate this Agreement with the remedies set out in Section 13 hereof. c. Notwithstanding anything to the contrary contained herein, in the event any of the Fly Aspen Snowmass entities fail to reimburse ASC for payments which ASC has made to Contractor pursuant to a validly received invoice from Contractor, ASC shall have the right to either terminate this Agreement upon seven (7) days written notice to Contractor or reduce the future payments due to Contractor by the amounts by which such Fly Aspen Snowmass entity failed to reimburse ASC. In the event ASC reduces payments to Contractor, Contractor shall have the right to terminate this Agreement upon seven (7) days written notice to ASC and/or to seek payment directly from such Fly Aspen Snowmass entity. 4. Coordination of Contractor's Activities. Contractor shall perform all of its activities hereunder in a manner which does not unreasonably interfere with ongoing work or other activities of ASC or its other contractors or agents including the Fly Aspen Snowmass entities. 5. Compliance with Applicable Laws. Contractor shall perform all of the Services in a manner which complies with all applicable federal, state, and local laws. Contractor shall be responsible for securing all applicable licenses and permits to perform the Services. Contractor shall perform the Services in a manner which protects the safety of ASC employees, other contractors, and third parties. 6. Payment for the Services. Contractor shall be compensated per the terms set forth in Exhibit B attached hereto and made a part hereof by this reference. Compensation shall be made by ASC to Contractor on behalf of the Fly Aspen Snowmass entities thirty (30) days from receipt of invoice therefor. In connection with all Contractor expense reimbursements, such invoice shall be accompanied by reasonably detailed explanation and appropriate supporting documentation therefor. Following payment by ASC to Contractor, ASC shall thereafter invoice ACRA, TOSV and Pitkin County Aspen Airport each Fly Aspen Snowmass’s share thereof (with each entity responsible for one quarter of the total amount). In the event of ASC terminates this Agreement early per Section 3, Contractor shall be paid only for Services actually performed. 7. Prevention of Liens. Contractor shall not take or allow any action which will or may result in the filing of any liens by any subcontractor or material supplier of Contractor or any unit of government. 8. Indemnification and Insurance. Contractor hereby waives and shall indemnify, defend, and hold harmless ASC, ACRA, TOSV and PitCo BOCC, its employees and agents. from and against any and all damages, claims, actions or liability of any sort whatsoever, including claims fo r negligence, personal injury, or property damage, arising out of or related to actions of Contractor or any of its owners, officers, employees, or agents in the performance under this Agreement or the Services performed hereunder. Contractor’s duty to indemnify the Fly Aspen Snowmass entities shall survive the Term of 3 this Agreement. Contractor shall carry, at its sole expense, professional liability and commercial general liability insurance policies providing coverage for Contractor’s ongoing operations and completed operations to be provided to the Fly Aspen Snowmass entities along with commercial automobile insurance policy. Said policies shall provide limits of liability of not less than $1 million each claim/occurrence/each accident, respectively. Contractor shall cause each of the Fly Aspen Snowmass entities (ASC, ACRA, TOSV and Pitkin County BOCC) to be named as an additional insured on its commercial general liability policy. Contractor’s commercial general liability policy shall be amended to be primary and non-contributory to any insurance carried by any Fly Aspen Snowmass entity. Contractor shall provide the Fly Aspen Snowmass entities each with a certificate as proof of said insurance coverage and each entity’s status as additional insured no less than five (5) business days prior to the commencement of the Services. Said certificate shall also provide that the coverage evidenced thereby may not be canceled without at least thirty (30) days’ prior written notice delivered to ASC at the address set forth below. 9. Workers’ Compensation Insurance. Contractor shall at all times during the term of performance under this Agreement maintain in full force and effect workers’ compensation coverage for all of Contractor’s employees in amounts at least equal to the statutory minimum amounts established b y the “Colorado Workers’ Compensation Act” as in effect now and as may hereafter be amended. 11. Ownership. Upon payment to Contractor of any amounts actually due and owed hereunder, all right, title and interested in and to the Services, including, without limitation, all intellectual property rights therein, shall be held and owned collectively by the Fly Aspen Snowmass entities as “work made for hire” to the greatest extent allowable under the law. If and to the extent the Services is not considered a “work made for hire”, Contractor hereby assigns all right, title and interest in and to the work and all intellectual property rights therein, to ASC, TOSV, ACRA, and Pitkin County Aspen Airport. 12. Authorized Representatives for Notices. The following persons, at the addresses set forth below shall be authorized to receive any notices hereunder: For ASC: For Contractor: Kristi Kavanaugh-Bradley Bill Tomcich P.O. Box 1248 Tomcich Travel Consulting, LLC Aspen, CO 81612 108 Castle View Drive Basalt CO 81621 With a copy to: Rana Dershowitz P.O. Box 1248 Aspen, CO 81612 4 Any notice hereunder shall be considered effective upon mailing to the addressee by the U.S. Mail, first class postage prepaid, addressed to the above addresses. 13. Remedies. In addition to all remedies otherwise available at law or equity, in the event of a termination as contemplated pursuant to this Agreement, ASC may authorize any other person, entity or contractor to complete any unfinished portion of the Services. In addition, the event of any termination as contemplated pursuant to this Agreement, ASC may withhold any unpaid amounts otherwise due hereunder to the extent that such amounts are required to pay the cost the completion of the Services. In such event, Contractor shall have no right to the receipt of any such amounts. Any termination as set forth above shall not act as a waiver or release of any claims arising out of any defective performance of the Services or any prior breach of any term or requirement of this Agreement. 14. No Partnership. Under the terms of this Agreement, Contractor shall not be considered an employee, agent, partner, joint venture, or contractor of ASC. C ontractor’s status shall be solely that of an independent contractor. Nothing in this Agreement is intended to confer any benefit upon any third party except the Fly Aspen Snowmass entities. 15. No Assignment. In no event shall Contractor shall assign its rights under this Agreement to any third party without ASC’s prior written consent. ASC may withhold its consent for any reason or no reason whatsoever. 16. Severability. In the event one or more provisions contained herein are deemed to be unenforceable as a matter of law or void as a matter of public policy, all other provisions shall remain in full force and effect. 17. Non-waiver. The failure in any one or more instances of a Party to insist upon performance of any of the terms or conditions contained in this Agreement shall not be construed as a subsequent waiver of any such terms or conditions and the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving Party. 18. Venue and Jurisdiction. The Parties understand, acknowledge and agree that this Agreement shall be governed by Colorado law and the exclusive venue for any dispute arising hereunder shall be in Pitkin County District Court, Aspen, Colorado, or in the Federal District Court for the State of Colorado. 19. Counterparts and Electronic Execution. This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is e xecuted) with the same force and effect as if such facsimile or ".pdf" signature page were an original thereof. 5 20. Entire Agreement. This agreement is the entire Agreement between the Parties and is intended to be a complete and integrated contract. The terms contained herein shall supersede and govern over any conflicting terms contained in any addendum or amendment hereto. NO INTERLINEATED OR HAND-WRITTEN CHANGE OR ADDENDUM TO THIS INDEPENDENT CONTRACTOR AGREEMENT IS AUTHORIZED OR SHALL HAVE ANY EFFECT. NO TERM OR CONDITION IN ANY CONTRACTOR FORM, SERVICE ORDER, OR ACCEPTANCE SHALL HAVE ANY EFFECT. Aspen Skiing Company, LLC Tomcich Travel Consulting, LLC ___________________ _______________________ By: By: Title: Title: ___________________ _______________________ Date: Date: Consented to: Aspen Chamber Resort Association Aspen Chamber Resort Association Town of Snowmass Village ___________________ _______________________ By: By: Title: Title: ___________________ _______________________ Date: Date: Pitkin County Board of County Commissioners ___________________ By: Title: ____________________ Date: Feb-18-2021 Bill Tomcich Principal Clinton M. Kinney Feb-18-2021 Town Manager Feb-18-2021 CEO & President Debbie Braun Kristi Kavanaugh-Bradley Feb-19-2021 VP, Sales, ASC Feb-18-2021 Rich Englehart Deputy County Manager 6 Exhibit A: Services Contractor will provide the following Services: ➢ Air Service Development, Restoration and Maintenance: Coordinate in close collaboration with the Aspen Airport Director, and in concert with his/or hers staff or representative’s simultaneous efforts in the development and maintenance of commercial airlines service into the Aspen / Pitkin County Airport. ➢ Maintaining airline relationships: Maintain relationships with commercial airlines’ air service and route planners and revenue management as it relates to air service development through regular e- mail and telephone correspondence, video conferences, headquarter visits and or hosting in Aspen Snowmass, and regular attendance at industry air service conferences to network and meet one-on- one with airline route planner representatives, including the following events as required: o At least one air service development conference hosted by either Mead & Hunt, Volaire Aviation, ASM Take-Off. o ACINA’s annual JumpStart Conference o The Boyd International Aviation Forecast Summit ➢ Clarifying Relationship With Pitkin County: Contractor’s airline relationships shall be focused on maintaining local air service. Contractor will not serve as a representative of the Aspen/Pitkin County Airport and shall not engage in discussions regarding airport operations, rates or fees, or corpo rate real estate. Communicating results of commercial operations as further described herein is fine provided the airport director has an opportunity to review drafts of said communications prior to its dissemination. Any communication regarding the airport operations, schedules, routes etc., be cleared through the Airport Director so that consistent messaging is possible between Aspen/Pitkin County Airport and the Airlines. ➢ Research and Data: Monitor and analyze relevant trends and developments; share meaningful observations. Monitor flight schedules into ASE on a weekly basis; summarize capacity shifts at both ASE and competing mountain airports. Track ASE enplanements, load factors, fares and completion percentages and relative capacity recovery and peer airport performance. ➢ Communications and Reporting: Provide regular communications to ASC, the executive committee of Fly Aspen Snowmass and Aspen Pitkin County Airport Director; monthly communications and quarterly in-person or video meetings with all members of Fly Aspen Snowmass, and seasonal communications to the entire business community and media. Contractor shall ensure that all members of the Fly Aspen Snowmass council have the ability to provide regular feedback to Contractor and shall organize or be available for an annual review session with all Fly Aspen Snowmass entities during each year for formal feedback to Contractor. ➢ Coordinate Local Airline Marketing Efforts: Act as a liaison between the local marketing organizations (Aspen Skiing Company, ACRA and TOSV) and the commercial airlines network planners, communications and/or marketing staff. Proof marketing materials for accuracy and help obtain airline approvals as necessary for air service development efforts and products. ➢ Strategic Recommendations: Be prepared to provide expert strategic recommendations to our commercial airlines partners, Fly Aspen Snowmass, Aspen Skiing Company and the airport director. 7 ➢ As a part of the Services, Contractor will also track, analyze and report on the following on a monthly, quarterly and seasonal basis consistent with the reporting samples provided: Available Seats, Enplanements and Load Factors Passenger Traffic Across Select Hub & Peer Airport s Total # Pax Flown April May June July Aug Sep Oct Nov GUC -98.3%-90.5%-87.6%-57.7%-39.5%-5.8%15.2%16.9% JAC -96.4%-87.1%-79.2%-48.5%-39.3%-30.7%-9.2%-18.3% ASE -97.4%-88.6%-82.7%-68.3%-55.5%-48.0%-26.5%-19.6% BZN -96.9%-87.9%-77.6%-54.6%-45.5%-34.6%-32.8%-38.8% DFW -91.9%-79.4%-67.6%-54.8%-52.5%-44.8%-40.2% DEN -94.4%-86.2%-72.6%-61.5%-53.7%-51.3%-45.4% SLC -91.9%-85.8%-75.7%-64.8%-58.6%-55.0%-53.6%-51.0% RNO -94.9%-87.0%-75.2%-67.4%-57.5%-58.2%-54.4%-53.2% YKM -95.1%-92.4%-85.1%-81.3%-73.5%-60.1%-56.0%-62.1% SUN -97.5%-94.3%-84.4%-73.1%-65.4%-57.5%-56.6%-59.1% IAH -95.1%-87.1%-85.8%-77.4%-72.2%-63.1%-59.8%-56.5% SEA -93.6%-87.3%-77.8%-72.4%-70.3%-66.6%-62.9%-63.6% TSA-US -95.3%-90.4%-81.1%-73.9%-71.0%-67.7%-64.4%-62.9% LAX -95.9%-92.4%-84.0%-82.0%-79.0%-75.0%-71.0%-69.7% SFO -97.1%-94.3%-89.8%-86.3%-85.1%-79.7%-77.8% April-November YOY Performance - Select Airports 8 Competitive Analysis: How available seats compare against a comp set of other mountain airports O&D Analysis: Shifts in passenger origination / destinations. U.S. DOT O&D Monthly Traffic Report for flights to ASE for travel between Dec 2019 and Feb 2020 YOY % Org Dst Rank Pax per Day Pax Share Rank Pax per Day Pax Share Change Change LAX ASE 1 515.6 16.0%1 492.3 16.0%23.4 4.7% ORD ASE 2 218.2 6.8%2 227.6 7.4%(9.4)-4.1% SFO ASE 3 183.9 5.7%4 174.3 5.6%9.6 5.5% LGA ASE 4 175.8 5.5%6 184.1 6.0%(8.3)-4.5% IAH ASE 5 168.2 5.2%3 146.5 4.7%21.7 14.8% DFW ASE 6 131.8 4.1%5 121.4 3.9%10.4 8.6% EWR ASE 7 130.9 4.1%7 113.2 3.7%17.7 15.7% BOS ASE 8 76.4 2.4%13 65.9 2.1%10.6 16.0% ATL ASE 9 73.5 2.3%9 76.0 2.5%(2.5)-3.3% DEN ASE 10 71.9 2.2%8 74.0 2.4%(2.0)-2.8% MIA ASE 11 69.0 2.1%11 66.0 2.1%2.9 4.4% PHX ASE 12 57.5 1.8%26 32.9 1.1%24.6 74.7% FLL ASE 13 53.1 1.7%10 73.0 2.4%(19.9)-27.2% AUS ASE 14 52.8 1.6%12 56.1 1.8%(3.3)-5.9% IAD ASE 15 50.7 1.6%21 39.8 1.3%10.9 27.5% SAN ASE 16 44.3 1.4%14 48.4 1.6%(4.2)-8.6% MSP ASE 17 44.2 1.4%16 44.5 1.4%(0.3)-0.7% PHL ASE 18 44.1 1.4%15 45.2 1.5%(1.0)-2.3% DTW ASE 19 42.0 1.3%20 38.7 1.3%3.4 8.7% TPA ASE 20 38.7 1.2%17 41.4 1.3%(2.6)-6.3% SEA ASE 21 34.0 1.1%19 33.8 1.1%0.2 0.6% DCA ASE 22 33.7 1.0%27 34.5 1.1%(0.8)-2.4% MCO ASE 23 33.4 1.0%18 32.3 1.0%1.0 3.2% MSY ASE 24 31.8 1.0%22 30.6 1.0%1.2 4.1% PBI ASE 25 22.1 0.7%38 18.0 0.6%4.1 22.9% TOTAL 3,216.6 100.0%3,085.7 100.0%130.9 4.2% Dec-Feb 2019Dec-Feb 2020 9 Exhibit B: Compensation Personnel: CONSULTING SERVICES Job Function Actual Corresponding Fully Burdened Item # (Generic Classifications) Title in Consultant's Firm Hourly RateMonthly Retainer* Air Service Consultant Principal $8,880 * Monthly invoicing will be based on any hourly rate of $185 for a total of 48 hours per month (roughly 12 hours per week on average) expected for the term of the contract for the scope of air service consultant. While the actual number of hours allocated toward Fly Aspen Snowmass work will likely exceed 48 hours more often than not, in no event shall the partners be liable for monthly compensation beyond the agreed upon retainer. Other Direct Costs (if applicable): (i.e., supplies, subscriptions, travel expenses) Item # Description Rate (Total Cost) Up to Three (3) Domestic trips for aviation conferences** $6,000.00 Up to Two (2) Domestic trips for airline headquarters visits** $1,800.00 Subscriptions: Airline Weekly, The Air Current (TAC) and ¼ cost of Airplanners’ Cirium/Diio subscription. $3,600.00 Total $11,400.00 ** To be approved by the Fly Aspen Snowmass executive committee in advance. Prices shall remain firm for the entirety of the Contract Term and constitute “fully burdened”, i.e., including all overhead costs, general, administrative and profit, total compensation, including “out-of-pocket” expenses (if any), for the performance of all Services contemplated under this Agreement. Bonus (New for 2021 in light of no increase to base monthly compensation): In addition to the monthly retainer, Contractor may earn up to an additional 15% on the annual value of the fully burdened monthly compensation ($15,984) payable in January, 2022. This bonus is not guaranteed, and is performance-driven, based on, but not limited to achieving agreed upon goals, including: (i) restoration of capacity and at ASE relative to peer airports; (ii) route performance in order to position ASE well for the future; (iii) other performance metrics as appropriate and agreed upon by the FAS executive committee.