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HomeMy WebLinkAboutTriav LLC-10/4/2010trillion AVIATION MASTER SERVICES AGREEMENT THIS MASTER SERVICES AGREEMENT (the "Agreement") is made and entered into as of October 1, 2010 (the "Effective Date"), by and between Triav, LLC, ("Trillion Aviation"), a Texas limited liability company, with offices at 4301 W. William Cannon Drive, Suite B-150, #293, Austin, Texas 78749, and the City of Waterloo, through Waterloo Regional Airport ("ALO"), a with offices at 2790 Livingston Lane, Waterloo, Iowa 50703. In consideration of the mutual promises or covenants contained in this Agreement, the parties agree as follows: SERVICES This Agreement establishes the terms and conditions under which Trillion Aviation agrees to provide services to ALO on specific projects. For each such project, Trillion Aviation and ALO will enter into a mutually agreeable statement of work, signed by both parties, which will be appended hereto (each a "Statement of Work"). Each Statement of Work will describe the services to be performed by Trillion Aviation (the "Services"), pricing, commencement date of the project and estimated performance period, all of which shall be negotiated independently for each Statement of Work. If provided in a Statement of Work, any "legal" Services are deemed to be business consulting Services and ALO agrees that any such Services shall not be relied on as legal opinion and that ALO shall seek all legal advice from its ALO's legal counsel. In the event of a conflict in terms between this Agreement and any Statement of Work, the terms of that Statement of Work shall govern for that engagement only. TERM, TERMINATION, AND SURVIVAL Unless otherwise terminated as herein provided, the term of this Agreement shall commence on the Effective Date and shall continue for a one (1) year period. Notwithstanding the foregoing, the Services shall be performed within the term specified in the relevant Statement of Work. Trillion Aviation may terminate this Agreement if ALO defaults in any payment under this Agreement and does not cure said default within fifteen (15) days after receipt of Trillion Aviation's written notice. In the event of any termination, Trillion Aviation shall be entitled to reimbursement from ALO for its actual costs incurred, up to and including the date of termination. Any terms of this Agreement which by their nature extend beyond termination of this Agreement shall survive and bind the parties and their successors and assigns. PAYMENT ALO agrees to pay Trillion Aviation for Services rendered under any Statement of Work pursuant to the pricing information contained in such Statement of Work. In addition to Trillion Aviation's fees for Services, ALO agrees to reimburse Trillion Aviation for all actual expenses incurred in the course of providing Services to ALO including, but not limited to, travel and ordinary travel -related expenses. Trillion Aviation will bill ALO on a monthly basis unless agreed otherwise in a Statement of Work. ALO shall make payment to Trillion Aviation within thirty (30) days of the date of Trillion Aviation's invoice. It is agreed that late payments by ALO will be subject to an interest Trillion Aviation / ALO Page 1 9/29/2010 charge of one (1) percent per month. Payment shall be made to the address set forth in such invoice. RELATIONSHIP OF THE PARTIES Nothing herein contained will be construed to place the parties in the relationship of partners, joint venturers, or principal and agent, and neither party has the power to obligate or bind the other in any matter whatsoever. REPRESENTATIONS AND WARRANTIES Trillion Aviation represents and warrants that all Services will be performed in a good and workmanlike manner consistent with good industry practice and in accordance with the specifications for such services provided in the relevant Statement of Work. Except as explicitly stated in this Agreement, neither party makes any warranties and expressly disclaims any and all warranties, expressed or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose. ALO and Trillion Aviation agree that this Agreement is predominantly an agreement for the provision of services. INDEMNIFICATION; LIMITATION OF LIABILITIES The parties shall indemnify, defend and hold harmless one another from and against any and all suits, proceedings at law or in equity, claims, liabilities, costs, payments, and expenses (including reasonable attorney fees) asserted against or incurred by such indemnitee, arising out of or in connection with any claim by any party with respect to the indemnifying party's negligence in the performance of this Agreement; provided, however, the indemnifying party shall have no obligation to indemnify, defend or hold harmless the indemnitee for the indemnitee's willful misconduct or gross negligence in the performance of this Agreement. Trillion Aviation's liability to ALO for actual damages from any cause whatsoever is limited to an amount equal to the amounts paid by ALO to Trillion Aviation under the relevant Statement of Work under which the claim or claims arose. This limitation will apply regardless of the form of action, whether in contract or in tort, including negligence. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOST REVENUES, LOST PROFITS, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, OR OTHER ECONOMIC DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In addition, except to the extent a specific obligation of indemnification is provided under this Agreement, neither party will be liable for any damages claimed by the other based on any third party claims. NOTICES All notices which are required or may be given pursuant to this Agreement must be in writing and sent to the individual listed below or his successor at the address above first written. Notices shall be delivered via registered or certified mail, postage prepaid, return receipt required or by a recognized courier service such as Federal Express, UPS or DHL, with package tracing capability. CHANGE ORDERS Either party may request in writing that Trillion Aviation make changes, modifications, or enhancements to the Services being provided pursuant to this Agreement ("Service Changes"). The parties will meet to determine whether they desire for Trillion Aviation to proceed with the making of the proposed Service Change. The parties must provide written approval (a "Change Trillion Aviation / ALO Page 2 9/29/2010 Order") to authorize the making of the Service Change. Change Orders will constitute part of the specific Statement of Work. CONFIDENTIALITY; INTELLECTUAL PROPERTY Trillion Aviation agrees to regard and preserve as confidential all information related to the business and activities of ALO that may be obtained by Trillion Aviation as a result of performing Services under this Agreement. ALO agrees to regard and preserve as confidential all information related to the business and activities of Trillion Aviation that may be obtained by ALO as a result of this Agreement and the performance of Services contemplated hereby, including, without limitation, all information regarding pricing of Services. Both parties agree to hold such information in trust and confidence for the other party and not to disclose such information to any person, firm, or enterprise, or use any such information to its own benefit, or to the benefit of any third party, unless authorized in writing by the party in interest. Information shall not be considered confidential to the extent that such information is: (i) already known free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction; or (iii) generally available to the public. In the course of performance under this Agreement, Trillion Aviation may use products, materials, tools, and methodologies that are proprietary to Trillion Aviation or to third parties (collectively, "Proprietary Items"). ALO will not have or obtain any rights in such Proprietary Items other than (i) to use them as authorized by Trillion Aviation in writing from time to time solely for purposes of performing its responsibilities under this Agreement. If Proprietary Items are made available to ALO, they will be made available "AS IS" and without express or implied warranties of any kind. Nothing in this Agreement will preclude Trillion Aviation from marketing, developing, or using for itself or others, services or products that are the same as or similar to those provided to ALO by Trillion Aviation pursuant to this Agreement. Furthermore, Trillion Aviation will continue to be free to use its general knowledge, skills, and experience and any ideas, concepts, know-how, and techniques related to the scope of this Agreement and used in the course of performing its obligations hereunder. GOVERNING LAW; VENUE This Agreement shall be governed by and construed under the laws of Texas, without regard to the provisions of Texas law regarding conflicts of law. The parties hereby submit exclusively to the jurisdiction of, and agree that venue is proper in, any state or federal court of competent jurisdiction located in Travis County, Texas. MISCELLANEOUS No alteration or modification of this Agreement or any Statement of Work will be binding or effective unless in writing and signed by a duly authorized representative of both Trillion Aviation and ALO. Without the prior written consent of the other party, which consent will not be unreasonably withheld, neither party may assign its rights or obligations under this Agreement except (i) to Affiliates, or (ii) in connection with the sale, merger, or consolidation of its business, or the transfer of all or substantially all of its assets. For purposes of this Agreement, "Affiliate" means, with respect to either party, any entity which directly or indirectly through stock ownership or through other arrangements either controls, or is controlled by, or is under common control with that party. No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement. If any provision of this Agreement is held by final judgment of a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. This Agreement, together with all Statements of Work, constitutes the entire agreement between the parties when executed by duly authorized signatories of Trillion Aviation and ALO. This Trillion Aviation / ALO Page 3 9/29/2010 Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. Neither party shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by reason beyond the reasonable control of such party. Time is of the essence in performance of this Agreement. ****************** WHEREAS, the parties hereto entered into this Agreement as of the Effective Date. TRIAV, LLC By: Name: Daniel Benz Title: President City o f aterloo By: Name: Ernest G. Clark Title: Mayor — City of Waterloo Trillion Aviation / ALO Page 4 9/29/2010 STATEMENT OF WORK This Statement of Work No. 1 between Triav, LLC ("Trillion Aviation") and ALO, YYY ("ALO") is governed by the Master Services Agreement ("MSA") in effect between the parties and, upon execution of this Statement of Work by both parties, is incorporated therein pursuant to MSA Section "Services". All terms and conditions of the MSA shall apply to this Statement of Work unless clearly stated to the contrary herein. CONTACT DESCRIPTION TRILLION AVIATION: John DeCoster ALO: Brad Hagen TITLE DESCRIPTION SERVICES TO BE PERFORMED: -Our Group will identify airlines that could potentially add service to Waterloo. These airlines could take the form of low cost carriers (LCCs), Charter airlines and/or legacy airlines. -Our Group will produce air service studies to be presented to targeted airlines. These studies may include, but not be limited to, community background, economic/demographic analysis, passenger traffic and related airline metrics. -Member(s) of our Group will participate in at least two (2) national air service conferences in order to meet with prospective airlines regarding service opportunities at ALO. -Additionally, our Group will recommend and negotiate with the carrier -in -question any incentive package and support details — working as a conduit between the airport/community and airline. PERFORMANCE STANDARDS: Commensurate with the highest industry standards. PRICING: Fee: $2,000 / month ($24,000) annually. Billed on the first of the month of service. Expenses: Travel -related expense reimbursement at cost without markup. COMMENCEMENT DATE: October 1, 2010 DURATION: One year. The parties hereto accepted and approved this Statement of Work as of the latest date written below and this Statement of Work may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall Trillion Aviation / ALO Page 5 9/29/2010 constitute one and the same instrument. Any signature delivered by facsimile shall be treated for all purposes as an original. TRIAV, LLC City of"' aterloo By: c-:).---2 i::_„,.--'— By: / / Name: Daniel Benzon C-''' Nam.? : Ernest G. Clark Title: President Title: Mayor - City of Waterloo Date: 10/17 1 co Date: 10169eld Trillion Aviation / ALO Page 6 9/29/2010