Draft Without Prejudice - Subject to Contract

Draft Without Prejudice - Subject to Contract

DATED 201[ ]

MANCHESTER AIRPORT PLC

and

LIMITED

(Trading as “ “)

AGREEMENT

relating to a concession to provide passenger transport services

at Manchester Airport Plc

Concession Period : [ ] years from and including 201[ ]

and expiring on and including 201[ ]

Group Legal Services

The Manchester Airport Group Plc

4th Floor Olympic House

Manchester M90 1QX

CONTENTS

Clause / Heading / Page
1 / Definitions / 3
2 / Purpose / 5
3 / Period / 5
4 / Financial Terms / 5
5 / Payment provision / 6
6 / Accounting provisions / 7
7 / Submission of payments and payment information / 8
8 / General obligations of the concessionaire in respect of its operations / 8
9 / Vehicles / 11
10 / Staff / 13
11 / Fitting out and maintenance / 15
12 / Premises / 16
13 / Obligations of the concessionaire / 17
14 / The concessionaires operations / 18
15 / Maintenance / 18
16 / Staff / 18
17 / Premises / 19
18 / Liability / 19
19 / Insurance / 19
20 / Termination / 20
21 / Vacating the premises / 21
22 / No warranty / 21
23 / Assignment / 21
24 / Entire agreement / 22
25 / Notices / 22
26 / Schedules and headings / 22
27 / Waiver / 22
28 / Enforceability / 22
29 / Governing Law / 23
Schedule
1 / Plans and premises / 24
2 / Services to be provided / 25
3 / Charges / 26
4 / Credit cards / 27
5 / TUPE obligations
THIS AGREEMENT is dated the ...... 201[ ]
BETWEEN:
1 / MANCHESTER AIRPORT PLC (Company No.01960988)
whose registered office is at P O Box 532 Town Hall, Manchester M60 2LA
(‘’the Company’’); and
2 / CLIMITED (Trading as “ “) (registered number 05449727) whose registered office is at (and of ) (‘’the Concessionaire’’)
Now it is agreed as follows:
1A / Definitions
1.1 / In this Agreement unless the context otherwise requires the following expressions have the following meanings:
‘’Accountant’’ means a person independent of the Concessionaire and qualified to be appointed as an auditor under the Companies Act 1985 (as amended);
‘’Account Sales’’ means any Sales where the Concessionaire has granted an account facility to a purchaser of any Services where the fare for such Services is charged to such account;
‘’Airport’’ means the operational extent of Manchester Airport Plc as may change and vary from time to time at the Company’s entire discretion;
‘’Byelaws’’ means the byelaws made by the Company in respect of the Airport (as amended from time to time);
“Commencement Date “ means the 201[ ]
‘’Company Bank Account’’ means such bank account or accounts as shall be notified from time to time by the Company to the Concessionaire;
‘’Concession Fee’’ means the sums payable by the Concessionaire to the Company specified in Clause 4.1 and subject to the Guaranteed Minimum Sum;
“Concession Period “ means the period commencing from and including the Commencement Date and expiring on and including the Expiry Date subject to the provisions for earlier determination and extension contained within this Agreement
‘‘Concession Year’’ means from and including 201[ ] to and including 201[ ] and thereafter from and including [ ] in each year to and including [ ] in the succeeding year during the continuance of this agreement and the First, Second, Third Concession Year shall be construed accordingly
“Dispute” means any dispute or claim arising as between the Parties under or in connection with this Agreement (including any dispute over the meaning and effect of this Agreement)
“Expiry Date” means the 201[ ] being [ ] years from the Commencement Date (or such later date as shall be agreed between the Parties).
‘’Fixtures and Fittings’’ means those fixtures and fittings supplied by the Concessionaire at his own expense and approved by the Company;
“Force Majeure” shall mean an act, event, condition, occurrence, circumstance, or a combination of the same which are beyond the reasonable control of the affected party which actually prevent, hinder or delay in whole or in part the performance by any Party of any of its obligations under this Agreement (other than payment). For the avoidance of doubt, the following events and circumstances shall be considered as Force Majeure including but not limited to Act of God, fire, flood, severe weather conditions, war, acts of terrorism, riot or civil commotion, actions or restraints of Government or Public Authorities, explosion, reduction or cessation of the supply of any Utilities or when carrying out works, chemical or radioactive contamination, archaeological finds;
“Gross Turnover” shall include the aggregate of following whether paid or payable to the Concessionaire at the Premises or elsewhere and arising from or in connection with any services provided, sold or performed or articles sold, leased, hired or otherwise disposed of pursuant to this Agreement (but not otherwise):-
  1. the amount of Customs and Excise duty charged on any article sold;
  2. the amount of any takings in cash, the cash value of any goods or services provided on credit or paid for by credit, debit or charge card transactions during the period concerned;
  3. the cash value of any consideration received on a sale or any other consideration or benefit in kind;
  4. the cash value of gift vouchers redeemed;
  5. other business of any nature however conducted;
  6. the full cash value of any goods or services provided on credit during the period concerned, whether paid on credit terms or in instalments and irrespective of the time(s) payment is received;
  7. every deposit made by a customer shall be included at the time of receipt but shall be deducted if and when credited or repaid;
  8. all amounts received from orders which originate or are received or accepted at the Premises even though delivery or performance is made from a place other than the Premises; Notwithstanding that payment may be made to a third party and that orders originate in the form of electronic communications;
  9. all amounts received from sales and services which the Concessionaire in the normal course of the business would or should credit to the business at the Premises conducted pursuant to this Agreement;
  10. and all licence fees or other consideration received by the Concessionaire from any third party in relation to business conducted at the Premises.
But shall exclude:-
  1. the amount of Value Added Tax charged on any services provided or articles sold
  2. the amount of any cash refund or credit given to a customer for returned goods or services including (but not limited to) defective or unsatisfactory goods or services provided that such cash refund or credit does not exceed the sale price of the goods included in the Gross Turnover;
  3. the cash value of gift vouchers sold at the Premises;
  4. sales arising from or in the course of the pre-existing business of the Concessionaire or sales other than arising under this Agreement.
No deduction in calculating Gross Turnover shall be made for bad or doubtful debts or (in the case of transactions paid by credit card) discounts or commissions payable by the Concessionaire to the giver of the credit.
‘’Installations’’ means such installations for the supply to the boundary of the appropriate part of the Premises of any of the following: heating, cooling, water (hot or cold), gas, electricity;
‘’Late Payment’’ means any payments not made when due as per Clause 5;
‘the lease’ means any separate lease for any property, other than the Premises entered into between the Company and the Concessionaire
‘’Guaranteed Minimum Sum” means the minimum payment payable by the Concessionaire to the Company pursuant to the provisions of clause 4. For the avoidance of doubt, the Guaranteed Minimum Sum shall count as payment towards the Concession Fee (in the event that the Concession Fee, once calculated, is higher than the Guaranteed Minimum Sum for any financial year).
“Parties” means the Company and the Concessionaire and “Party” shall be construed accordingly
‘’Premises’’ means those areas to be made available within the Terminals by the Company to the Concessionaire and utilised for the purposes of receiving enquires and orders from the customers for the Services in accordance with the terms of this Agreement, as shown for identification only in Schedule 1 which areas may be varied from time to time in accordance with the provisions of this Agreement;
‘’Sales’’ means in relation to any of the Services the actual amount of fare paid or payable in respect of any of the following:
a) / all journeys originating within the boundary of the Airport;
b) / all journeys originating outside the boundary of the Airport to a drop-off point within the boundary of the Airport;
c) / all journeys arising where the pick-up point is outside the boundary of the Airport if the business originated through the Concessionaire’s office at the Airport;
d) / all fares originating from an order or enquiry at the Airport even if the vehicle used is from another depot;
being Sales arising from and pursuant to this Agreement (it being acknowledged by the Parties that immediately prior to entering in to this Agreement the Concessionaire has regularly carried out and continues to carry out some or all of the above activities) and for this purpose Sales shall include the amount of any sales in cash, credit cards or cheques supported by guarantee card.
‘’Services’’ means the private services to be provided by the Concessionaire pursuant to this Agreement (it being acknowledged by the Parties that immediately prior to entering in to this Agreement the Concessionaire has regularly carried out and continues to carry out some or all of the above activities) as listed in Schedule 2;
‘’Terminals’’ means Terminals 1, 2 and 3 at the Airport;
‘’Utilities’’ means supplies of gas, water and electricity and any other services and utilities used by the Concessionaire at the Promises ;
‘’VAT’’ means value added tax;
‘’Walk Up Sales’’ means any Sales which are not Account Sales.
1B /
Interpretation
  1. This Agreement shall come into effect on and including the Commencement Date and will continue in effect until 2359 hours on the Expiry Date unless terminated earlier in accordance with the provisions of this Agreement.
  2. The Company and the Concessionaire agree to observe and perform their respective obligations contained or referred to in this Agreement.
  3. This entire Agreement shall be deemed to be formed and made in England and shall be read and construed according to English Law and be enforceable in the English Courts.
  4. Words importing the singular include the plural and vice versa and words importing gender include any other gender.
  5. In this Agreement any reference to a statutory provision includes a reference to that provision as from time to time amended, extended or re-enacted and any regulation, order, direction, byelaw, permission, licence, consent, condition or scheme made pursuant to it.
  6. Headings used in this Agreement are used for ease of reference only and have no legal significance. References in this Agreement to clauses, schedules and appendices shall be construed as references to clauses, schedules and appendices of or to this Agreement unless stated otherwise.
  7. The rights and remedies provided by this Agreement are and shall be cumulative and not exclude any rights or remedies provided by law.
  8. Nothing in this Agreement shall be deemed to create a tenancy of the Premises nor confer upon the Concessionaire any right to the exclusive use or occupation of the Premises or any part thereof or any exclusive rights in relation to the provision of the services covered by this Agreement on the Airport as a whole.
  9. The Parties acknowledge that this Agreement constitutes the entire agreement between the Parties and supersedes and cancels any previous understandings, commitments, agreements or representations of whatsoever nature whether oral or written, express or implied, in relation to the contents hereof.
  10. No variation or amendment of this Agreement shall be valid unless made in writing and signed by both Parties. Correspondence by e-mail is considered to satisfy this provision save that there is no need for signature in this case but any variation or amendment to this Agreement must be agreed by both Parties.
  11. This Agreement may be executed in any number of counterparts each of which when executed and delivered shall be an original, but all the counterparts taken together shall constitute the same document.
  12. If any term of this Agreement is or becomes invalid or unenforceable, then it shall not affect the validity or enforceability of the remainder of the Agreement. Invalid or unenforceable terms will be deleted from this Agreement and the Parties shall, if possible, agree a valid and enforceable term in substitution.
  13. The failure or delay by a Party in enforcing against the other Party any term or condition of this Agreement or the partial exercise by either Party of any rights hereunder shall not be deemed to be a waiver of any right of that Party under this Agreement.
  14. The acceptance by the Company of any payment due under this Agreement shall not be deemed to indicate that any part of the obligations contained within this Agreement have been satisfactorily observed by the Concessionaire.
  15. This Agreement shall not be taken to create any partnership or joint venture between the Parties or impose any liability as such on them. The Concessionaire shall have no authority to act on behalf of or to represent the Company or ManchesterAirport in any way or to be deemed to be an agent of the Company or have power to enter into any transaction on behalf of or otherwise bind the Company in any way.
  16. The Parties hereby confirm that, notwithstanding any other provisions of this Agreement, this Agreement shall not confer and shall not purport to confer on any third party the benefit of any right to enforce any term or condition of this Agreement and the Contracts (Rights of Third Parties) Act 1999 shall not apply.
  17. Each of the Parties shall pay and be responsible for any costs and expenses incurred by it in connection with the negotiation and entry into of this Agreement.
  18. This Agreement shall, as to any of its provisions remaining to be performed in whole or in part or capable of having effect following expiry or termination, remain in full force and effect despite such expiry or termination.
  19. The obligations of the Parties under this Agreement shall remain suspended for reasons of Force Majeure during such event, provided reasonable steps have been taken by the non performing Party to overcome such event. The Parties shall not be liable to each other in respect of any loss, damage, cost, expense, claims, demands and proceedings relating to or arising out of occurrence or existence of any Force Majeure events, provided reasonable steps have been taken by the non-performing Party to overcome such event.
  20. A Party claiming to be unable to perform its obligations under this Agreement (either on time or at all) by reason of Force Majeure must immediately notify the other Party of the nature and extent of the Force Majeure circumstances being relied upon.
  21. Clause 1B (xix) shall cease to apply when the relevant incident has ceased to have an effect on the performance of this Agreement.
  22. The Company gives no warranty as to the number or predicted number of Passengers using the Airport.
  23. Without limiting the generality of the foregoing the Concessionaire agrees and acknowledges that it has entered into this Agreement on the Concessionaire’s own assessment of the viability of its business or prospective business and that the Concessionaire has not relied on any statement of opinion or representation that may have been made by the Company as to the future profitability of such business.
  24. Neither Party shall be liable under this Agreement to the other Party for any loss of income, loss of profits or for any indirect or consequential loss or damage of any kind howsoever arising.

2 / Purpose
2.1 / The Company grants to the Concessionaire the non-exclusive right to provide the Services from the Premises.
3 / Concession Period
3.1 /
  1. Subject to earlier termination in accordance with the terms hereof, this Agreement shall continue for a period of three years commencing on the Commencement Date and ending on and including the Expiry Date.
  1. At the entire discretion of the Company the Concession Period may be extended by the Company for a further period not exceeding two years on such terms and conditions as the Parties may agree. Such review will be commenced by the Company notifying the Concessionaire not later than 6 months prior to the end of the Concession Period of its intention to review the Concession Period. The Company and the Concessionaire thereafter shall enter into good faith negotiations to endeavour to conclude such review not later than six months prior to the end of the Concession Period. In the event that the Parties have not agreed a further extension to the Agreement on or before this date (being two months prior to the end of the Agreement) then (subject to the option to extend detailed 3.1 (iii) below) then the Agreement shall terminate automatically on the final day of the Concession Period.
  1. Without prejudice to clause 3.1 (i) above the Company is hereby granted by the Concessionaire an option to extend the Concession Period (on the same terms as in place immediately prior to the exercise of the option) by further periods of three months in duration. In the circumstances that the Company shall require extension of the Concession Period it shall notify the Concessionaire in writing of such extension no less than 3 months prior to the expiry of the Concession Period (or any extended Concession Period as the case may be) within that timescale. In the event that the Company does not notify the Concessionaire to request an extension of the concession Period (or any such extended Concession Period) then the Agreement shall automatically expire at the end of the Concession Period or any extended Concession Period(s).
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