Exhibit 10.28


 


2/23/2000


 


CONSTRUCTION, FINANCING AND OPERATING SPECIAL FACILITY
LEASE

AGREEMENT


 


Dated as of            ,
2000


 










 


Between

THE
STATE OF CONNECTICUT

DEPARTMENT
OF TRANSPORTATION

and

APCOA
BRADLEY PARKING COMPANY, LLC


 










 


Relating to

the Construction,
Financing, Operating and Leasing

of a
Parking Garage and Surface Parking at

Bradley
International Airport

Windsor
Locks, Connecticut


 

















 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
  RECITALS

  	
   

  	
  1

  
	
  SECTION 1.

  	
  Definitions

  	
  2

  
	
  SECTION 2.

  	
  Ownership of
  and Granting of Leasehold Interest in the Project Site, Garage and Surface
  Parking

  	
  13

  
	
  SECTION 3.

  	
  Term

  	
  14

  
	
  SECTION 4.

  	
  Construction
  of the Garage

  	
  14

  
	
  (a)

  	
  Obligation
  to Construct

  	
  14

  
	
  (b)

  	
  Change
  Orders

  	
  15

  
	
  (c)

  	
  Insurance

  	
  15

  
	
  (d)

  	
  Substantial
  Completion

  	
  15

  
	
  (e)

  	
  State’s
  Certificate of Acceptance

  	
  16

  
	
  (f)

  	
  Site Plans
  and Surveys

  	
  16

  
	
  (g)

  	
  Punch List

  	
  16

  
	
  (h)

  	
  Construction
  Representatives

  	
  16

  
	
  (i)

  	
  Extension of
  Target Date

  	
  17

  
	
  (j)

  	
  Inspection
  of Garage and Project Site

  	
  17

  
	
  (k)

  	
  State’s Duty
  to Cooperate

  	
  17

  
	
  (l)

  	
  Payment and
  Performance Bond

  	
  18

  
	
  SECTION 5.

  	
  Issuance of
  Bonds

  	
  18

  
	
  SECTION 6.

  	
  Flow of
  Funds and Payments

  	
  18

  
	
  (a)

  	
  Deposit of
  Gross Receipts

  	
  18

  
	
  (b)

  	
  Trustee
  Payments

  	
  19

  
	
  SECTION 7.

  	
  Use and
  Operation of the Leased Premises

  	
  26

  
	
  (a)

  	
  General

  	
  26

  
	
  (b)

  	
  Credit Cards
  and Debit Cards

  	
  31

  
	
  (c)

  	
  Revenue Control

  	
  31

  
	
  (d)

  	
  Budget

  	
  35

  
	
  (e)

  	
  Recordkeeping,
  Reporting and Audits

  	
  35

  
	
  (f)

  	
  Airport
  Shuttle Bus Service

  	
  37

  
	
  SECTION 8.

  	
  Unlawful Use

  	
  39

  
	
  SECTION 9.

  	
  Payment of
  Taxes and Assessments

  	
  39

  
	
  SECTION 10.

  	
  Utilities
  and Service Contracts

  	
  41

  
	
  SECTION 11. 

  	
  Insurance

  	
  41

  
	
  SECTION 12. 

  	
  Maintenance,
  Repairs and Capital Improvements

  	
  43

  
	
  (a)

  	
  Garage

  	
  43

  
	
  (b)

  	
  Surface
  Parking

  	
  44

  
	
  SECTION 13.

  	
  Damage or
  Destruction

  	
  46

  
	
  SECTION 14.

  	
  Eminent
  Domain

  	
  46

  
	
  SECTION 15.

  	
  ABPC’s
  Option to Terminate

  	
  47

  
	
  SECTION 16.

  	
  Assignment
  of Lease by the State

  	
  48

  
	
  SECTION 17.

  	
  Right of the
  State to Perform ABPC’s Obligations

  	
  48

  



 


1

















 


	
   

  	
   

  	
  Page

  
	
  SECTION 18.

  	
  Employment
  of Personnel

  	
  49

  
	
  SECTION 19.

  	
  Environmental
  Provisions

  	
  49

  
	
  SECTION 20.

  	
  Defaults,
  Remedies and Waivers by ABPC

  	
  52

  
	
  SECTION 21.

  	
  Representations
  of ABPC

  	
  54

  
	
  (a)

  	
  Corporate
  Organization and Power

  	
  54

  
	
  (b)

  	
  Pending
  Litigation

  	
  54

  
	
  (c)

  	
  Agreements
  Are Valid and Authorized

  	
  54

  
	
  (d)

  	
  Governmental
  Consents

  	
  54

  
	
  (e)

  	
  No Defaults

  	
  55

  
	
  (f)

  	
  Compliance
  with Laws

  	
  55

  
	
  SECTION 22.

  	
  Representations
  of the State

  	
  55

  
	
  (a)

  	
  Pending
  Litigation

  	
  55

  
	
  (b)

  	
  No Defaults

  	
  55

  
	
  (c)

  	
  Title

  	
  55

  
	
  (d)

  	
  Compliance
  with Laws

  	
  55

  
	
  SECTION 23.

  	
  No Remedy
  Exclusive

  	
  55

  
	
  SECTION 24.

  	
  Breach by
  the State

  	
  56

  
	
  SECTION 25.

  	
  Indemnification

  	
  56

  
	
  SECTION 26.

  	
  Severability

  	
  56

  
	
  SECTION 27.

  	
  Waiver of
  Subrogation

  	
  56

  
	
  SECTION 28.

  	
  Vacation of
  Garage and Surface Parking

  	
  57

  
	
  SECTION 29.

  	
  Holding Over

  	
  57

  
	
  SECTION 30.

  	
  Waiver

  	
  57

  
	
  SECTION 31.

  	
  Concurrent
  Remedies

  	
  57

  
	
  SECTION 32.

  	
  Mechanic’s
  or Other Liens

  	
  57

  
	
  SECTION 33.

  	
  Assignment
  and Subletting

  	
  57

  
	
  SECTION 34.

  	
  Broker’s
  Commission

  	
  58

  
	
  SECTION 35.

  	
  Construction
  of “the State” and “ABPC”

  	
  58

  
	
  SECTION 36.

  	
  Notice of
  Lease to be Recorded

  	
  58

  
	
  SECTION 37.

  	
  Notices

  	
  58

  
	
  SECTION 38.

  	
  Quiet
  Enjoyment

  	
  59

  
	
  SECTION 39.

  	
  No Third
  Party Benefit

  	
  59

  
	
  SECTION 40.

  	
  Estoppel
  Certificates

  	
  59

  
	
  SECTION 41.

  	
  Governing
  Law

  	
  60

  
	
  SECTION 42.

  	
  Disadvantaged
  Business Enterprise (DBE) Requirement

  	
  60

  
	
  SECTION 43.

  	
  Counterparts

  	
  61

  
	
  SECTION 44.

  	
  Captious

  	
  61

  
	
  SECTION 45.

  	
  Complete
  Agreement

  	
  61

  
	
  SECTION 46.

  	
  Civil Rights
  and Executive Orders

  	
  62

  
	
  SECTION 47. 

  	
  Agent for
  Service of Process

  	
  66

  
	
  SECTION 48.

  	
  Required
  Federal Aviation Administration (FAA) Contract Provisions

  	
  66

  
	
  SECTION 49.

  	
  Suspension
  or Debarment

  	
  67

  
	
  SECTION 50.

  	
  Covenant as
  to Tax Exemption

  	
  68

  
	
  SECTION 51.

  	
  Property
  Rights on Termination

  	
  69

  
	
  SECTION 52.

  	
  Covenants
  with Respect To the United States of America

  	
  70

  
	
  SECTION 53.

  	
  Leasehold
  Mortgage

  	
  70

  



 


2

















 


	
   

  	
   

  	
  Page

  
	
  EXHIBIT A.

  	
  Description
  of Project Site

  	
  A-1

  
	
  EXHIBIT B.

  	
  Intentionally
  Omitted

  	
  B-1

  
	
  EXHIBIT C.

  	
  Certificate
  of Acceptance of the Garage

  	
  C-1

  
	
  EXHIBIT D. 

  	
  RESERVED

  	
   

  
	
  EXHIBIT E.

  	
  State
  Minimum Guarantee Payment Schedule

  	
  E-1

  
	
  EXHIBIT F.

  	
  Parking Fee
  Schedule

  	
  F-1

  
	
  EXHIBIT G.

  	
  Surface
  Parking Lots

  	
  G-1

  
	
  EXHIBIT H.

  	
  Major
  Maintenance Fund Requirement and Capital Improvement Fund Requirements

  	
  H-1

  
	
  EXHIBIT I.

  	
  Copy of
  License Agreement

  	
  I-1

  
	
  EXHIBIT J.

  	
  Copy of
  Assignment Agreement

  	
  J-1

  
	
  EXHIBIT K. 

  	
  Development
  Costs

  	
  K-1

  
	
  EXHIBIT L.

  	
  Construction
  Management Agreement

  	
  L-1

  
	
  EXHIBIT M. 

  	
  Guaranty
  Agreement

  	
  M-1

  



 


3

















 


CONSTRUCTION, FINANCING AND OPERATING SPECIAL FACILITY
LEASE 

AGREEMENT


 


THIS CONSTRUCTION, FINANCING AND OPERATING SPECIAL
FACILITY LEASE AGREEMENT (the “Lease”)
is made and entered into as of the — day of March, 2000, by and between THE
STATE OF CONNECTICUT, DEPARTMENT OF TRANSPORTATION, James F. Sullivan,
Commissioner, acting herein by Robert F. Juliano, Bureau Chief, Bureau of
Aviation and Ports, duly authorized (the “State”), and APCOA BRADLEY PARKING
COMPANY, LLC, a Connecticut limited liability company (“ABPC”).


 


WITNESSETH:


 


A. WHEREAS, the
State of Connecticut, acting through the Department of Transportation, is the
owner of certain land, buildings and improvements thereon known as Bradley International
Airport (the “Airport”), which is located in part in the Town of Windsor Locks,
County of Hartford, State of Connecticut;


 


B. WHEREAS, the
State has determined that the need exists for an approximately 3,500 space
parking garage and other improvements (the “Garage”) on a site immediately
adjacent to the terminal complex at the Airport, as more particularly described
in Exhibit A hereto (the “Project Site”);


 


C. WHEREAS, APCOA/Standard
Parking, Inc. (“APCOA”) and Tomasso Brothers, Inc. (“TBI”) acting
through ABPC, a wholly owned affiliate of APCOA, and the State desire to enter
into this Construction, Financing and Operating Special Facility Lease
Agreement under which ABPC agrees to construct and operate the Garage and to
provide for the payment of certain amounts hereunder, and the State, pursuant
to authority granted in C.G.S. Chapter 266a, Section 2.8 of the Bradley
Airport Parity Bond Indenture, and a Trust Indenture, dated as of       , 2000, as supplemented by a First Supplemental Trust Indenture (as so
supplemented, the “Trust Indenture”), each between the State and the trustee
named therein (the “Trustee”), agrees to issue and sell one or more series of
its Bradley International Airport special obligation parking revenue bonds (the
“Bonds”) in a principal amount sufficient to finance the cost of developing and
constructing the Garage and related costs;


 


D. WHEREAS, under
this Lease, ABPC will obligate itself to deposit all Garage Gross Receipts and
Surface Parking Gross Receipts, as hereinafter provided with the Trustee, as
assignee of the State under the Trust Indenture or in its capacity as Custodian
which deposit obligations and other non-construction obligations of ABPC under
this Lease shall, prior to Substantial Completion of the Garage, be performed
by APCOA, pursuant to a License Agreement (the “License Agreement”) dated as of
the date hereof, between ABPC and APCOA, a copy of which is attached hereto as Exhibit I;


 


1

















 


E. WHEREAS, APCOA pursuant to a Guaranty Agreement, a copy of which is attached
hereto as Exhibit M (the “Guaranty”), has guaranteed certain
Guaranteed Payments as set forth in Sections 6(b)(1) and (2), as
hereinafter set forth;


 


F. WHEREAS, pursuant to a Construction Management Agreement (the “Construction
Management Agreement”) dated as of the date hereof, between ABPC and TBI-BDL
Company, a wholly owned subsidiary of TBI (the “Construction Manager”), a copy
of which is attached hereto as Exhibit L, ABPC
has engaged the Construction Manager to perform each of ABPC’s obligations
under the Lease in connection with the construction of the Garage, and the
Construction Manager, having experience in the design, development,
construction and management of similar projects, has accepted such engagement,
all in accordance with the terms and conditions set forth in the Construction
Management Agreement;


 


G. WHEREAS, pursuant to an Assignment Agreement, a copy of which is attached hereto
as Exhibit J (the “Assignment”), dated as of the date hereof,
between ABPC, and Bradley Airport Parking Limited Partnership, a Delaware
limited partnership (“BAP”), of which APCOA will be the general partner and
TBI-BDL Garage, LLC, an affiliate of TBI, will be the sole limited partner,
ABPC has assigned, effective as of the earlier of the date the Garage is
Substantially Completed or the expiration or termination of the License
Agreement, all of ABPC’s non-construction rights and obligations under the
Lease, including, without limitation, the deposit of all Garage Gross Receipts
and Surface Parking Gross Receipts, as hereinafter provided to BAP, and BAP has
agreed to exercise all of such non-construction rights and perform all of such
non-construction obligations under this Lease, including, without limitation,
the requisite deposits thereunder; and


 


H. WHEREAS, pursuant to C.G.S. Section 13b-42(b), the State has authority to
enter into this Lease with the approval of the Secretary of the Office of
Policy and Management, the State Properties Review Board, and the Attorney
General;


 


NOW, THEREFORE, for and in consideration of the premises and other good and valuable
consideration and of the mutual covenants, benefits, and agreements contained
herein, the receipt and sufficiency of which are hereby acknowledged, the State
and ABPC hereby agree as follows:


 


SECTION 1. Definitions. Unless the context otherwise requires, the
terms defined in this Section 1 shall, for all purposes of this Lease and
of any amendment hereof or supplement hereto, have the meanings herein
specified, with the following definitions to be equally applicable to both the
singular and plural forms of any of the terms herein defined:


 


“ABPC”
is defined in the preamble of this Lease. In addition, as used hereinbelow, “ABPC”
shall include the successors, licensees and assignees of ABPC, including,
without imitation, the licensee and assignee of ABPC under the License
Agreement and the Assignment. In the event that ABPC should cease to exist at
any time after Substantial “Completion, any reference herein to ABPC shall be
construed as a reference to BAP.


 


2

















 


“ABPC’s
Gross Award” means the amount awarded to or received by ABPC as damages,
compensation or otherwise by reason of the taking of all or any part of ABPC’s
leasehold interest under this Lease, including, without limitation, its
leasehold interest in either or both of the Garage and the Surface Parking or
ABPC’s own property which is not affixed to the Garage, as a result of or in
anticipation of the exercise of the right of expropriation, condemnation or
eminent domain.


 


“Additional
Payments” is defined in Section 6(c) of this Lease.


 


“Airport”
is defined in paragraph A of the recitals of this Lease.


 


“Airport
Administrator” means the administrator of the Airport appointed by the
State.


 


“Airport
Facilities” means “airports” and “functionally related and subordinate
facilities” within the meaning of and qualifying under Section 142 of the
Code that consist solely of (A) items of property that are directly
related and essential to servicing aircraft, enabling aircraft to take off and
land, or transferring passengers or cargo to or from aircraft, or (B) property
located at the Airport that is functionally related and subordinate to such
facilities and that is of a character and size commensurate with the character
and size of the Airport, and all of which property is of a character subject to
the allowance for depreciation under Sections 167 and 168 of the Code. All
Airport Facilities constitute part of the Airport and are, or will be upon
completion of acquisition or construction, available to and will serve the
general public on a regular basis, including serving private companies
operating as common carriers that serve the general public on a regular basis.
The term “Airport Facilities” excludes (i) working capital
expenditures; (ii) hotels or other lodging facilities; (iii) retail
facilities (including food and beverage facilities) in excess of the size
necessary to serve passengers (and persons who meet or accompany them) and
employees at the Airport; (iv) any retail facility (other than parking)
for passengers or the general public located outside the Airport terminals; (v) office
buildings for individuals who are not employees of a governmental unit or the
State; (vi) industrial parks or manufacturing facilities; (vii) any
office space that is not located on the premises of the Airport or in which
more than a de minimis amount of the functions to be performed will not be directly related to
the day-to-day operations at the Airport; or (viii) any office building or
office space within a building or a computer facility, either of which serves a
system-wide or regional function of an airline or other private person. All
Airport Facilities are, or upon completion of acquisition or construction will
be, owned by the State or another governmental unit, within the meaning of Section 142
(b)(1) of the Code.


 


“APCOA”
is defined in paragraph C of the recitals of this Lease.


 


“Assignment”
is defined in paragraph G of the recitals of this Lease.


 


“BAP”
is defined in paragraph G of the recitals of this Lease.


 


“Bond
Issuance Date” means the date on which the original Bonds are issued and
delivered and payment therefor is received from the purchasers thereof.


 


3

















 


“Bonds”
is defined in paragraph C of the recitals of this Lease. The term “Bonds” shall
include any Special Obligation Refunding Bonds. The Bonds are issued pursuant
to authority contained in C.G.S. Chapter 266a et seq. and Section 2.8 of
the Bradley Airport Parity Bond Indenture and are not secured by the Gross
Operating Revenues of the Airport.


 


“Bradley
Airport Parity Bond Indenture” means that certain Indenture of Trust dated
as of October 1, 1982, as amended, between the State and the trustee named
therein, which provides for the issuance of the State’s Bradley Airport Parity
Bonds which are secured by the Gross Operating Revenues of the Airport. In the
event that the State shall subsequently issue bonds to refund or replace the
Bradley Airport Parity Bonds, the indenture or other similar document securing
those bonds shall be deemed to be the “Bradley Airport Parity Bond Indenture,”
to the extent applicable, for purposes of this Lease.


 


“Bradley
Airport Parity Bonds” means the bonds (not including the Bonds issued to
finance the Garage or any Special Obligation Refunding Bonds) which are issued
and secured on a parity basis by the Gross Operating Revenues of the Airport
under the general provisions of the Bradley Airport Parity Bond Indenture. In
the event that the State shall subsequently issue bonds to refund or replace
the Bradley Airport Parity Bonds, those bonds shall be deemed to be the “Bradley
Airport Parity Bonds,” to the extent applicable, for purposes of this Lease.


 


“Budgets”
means the Garage Budget and the Surface Parking Budget as defined in Section 7(c) of
this Lease.


 


“Business
Day” means any day of the year, other than a Saturday or Sunday, or a day
on which banks located in the cities in which the principal offices of the
Trustee and any Paying Agent are located and in Hartford, Connecticut are
legally authorized to be closed, and on which the Trustee and the Paying Agent
are open.


 


“Capitalized
Interest Account” means the fund or account into which is deposited an
amount of Bond proceeds which is adequate, with earnings thereon, to provide
funds to pay debt service (equal to capitalized interest) on the Bonds from the
Bond Issuance Date to the date or dates that the Garage is expected to be placed
in service.


 


“Certificate
of Acceptance” is defined in Section 4(e) of this Lease.


 


“Change
Orders” is defined in Section 4(b) of this Lease.


 


“Charge”
and “Charges” are defined in Section 9(a) of this Lease.


 


“Code”
means the Internal Revenue Code of 1986, as amended, and the applicable
Treasury Regulations (as defined in the Tax Compliance Certificate) thereunder.


 


“Completion
Date” means the date that the Garage has been Substantially Completed.


 


4

















 


“Concession
Agreement” means that certain Public Parking Facility and Shuttle Bus
Service Operation Concession Agreement dated January 3, 1994, as amended
to date, between the State and APCOA — R & G Parking, a joint venture
organization.


 


“Construction
Fund” means the Construction Fund established under the Trust Indenture
which contains certain proceeds of the Bonds deposited therein plus interest
earnings thereon, for the purpose of paying the Development Costs, the Fixed
Construction Price, State Construction Oversight Costs and the Issuance Costs.


 


“Construction
Documents” is defined in Section 4(a) of this Lease.


 


“Construction
Management Agreement” is defined in paragraph F of the recitals of this
Lease.


 


“Construction
Manager” is defined in paragraph F of the recitals of this Lease.


 


“Construction
Representative” is defined in Section 4(h) of this Lease.


 


“Custodian”
means the Trustee acting in its capacity as Custodian under the Custody
Agreement.


 


“Custody
Agreement” means the Custody Agreement between the State and the Custodian
relating to the deposit and application of Surface Parking Gross Receipts.


 


“Debt
Service” is defined in Section 6(b)(1)(ii) of this Lease.


 


“Debt
Service Fund” means the fund or account into which Debt Service payments
are deposited pursuant to the Trust Indenture.


 


“Debt
Service Reserve Fund” means the fund or account into which is deposited any
Bond proceeds issued to fund a debt service reserve fund or other reserve
deposits required under the Trust Indenture.


 


“Developer
Payments” is defined in Section 6(c)(i) of this Lease.


 


“Development
Costs” means the sum as defined and set forth in Exhibit K.


 


“Environmental
Laws” is defined in Section 19A of this Lease.


 


“Fixed
Construction Price” means the fixed price of $36,900,000 to be paid from
the Construction Fund to the Construction Manager for the construction of the
Garage, in accordance with the Construction Management Agreement.


 


5

















 


“Garage”
is defined in paragraph B of the recitals of this Lease and includes other
facilities and improvements as set forth in the Construction Documents as
defined in Section 4(a) of this Lease.


 


“Garage
Budget” is defined in Section 7(c) of this Lease.


 


“Garage
Coverage Ratio” is defined in the Trust Indenture.


 


“Garage
Gross Receipts” means, for any period with respect to the operation of the
Garage, all sums collected by ABPC (including, but not limited to, gross cash,
gross debit card and gross credit card transactions) from the parking of motor
vehicles, whether on an hourly, daily, weekly or monthly basis, plus all rents,
revenues, interest, license fees and any other income fees or charges received
with respect to ABPC’s lease, use, possession and operation of the Garage,
including interest earnings on the Garage Operating Expenses Account required
to be transferred to the Trustee pursuant to Section 6(a)(4) hereof, less all
State approved refunds, promotional discounts and allowances made by ABPC to
its customers, and less any sales tax, use tax, excise tax, occupancy tax,
gross receipts tax, parking tax or any other tax or charge collected by ABPC on
behalf of and payable to any governmental or quasi-governmental entity.


 


“Garage
Gross Receipts Fund” is defined in Section 6(b)(1) of this Lease.


 


“Garage
Guaranteed Payments” is defined in Section 6(b)(1) of this Lease.


 


“Garage
Major Maintenance and Capital Improvement Fund” is defined in Section 6(b)(1) of
this Lease.


 


“Garage
Operating Expenses” means, for any period, all expenses paid in the ordinary
course of business in connection with the operation of the Garage which are
reasonable and directly attributable thereto, including, without limitation:


 


(i)        Payment or deposit of Charges with respect to
the Garage as provided under Section 9(a) of this Lease;


 


(ii)       Payroll
expenses and applicable payroll taxes for employees directly performing
services for the Garage, and including provision for vacation pay, pension,
health and welfare programs and other benefit obligations;


 


(iii)      The costs
of insurance with respect to the Garage as herein provided;


 


(iv)                The costs of supplies for the Garage;


 


(v)                   Laundry and uniforms for the Garage;


 


(vi)                Postage for the Garage;


 


6

















 


(vii)    The costs of
printing parking tickets and related forms for use exclusively at the Garage;


 


(viii)   The payment
uninsured damage claims with respect to the Garage;


 


(ix)      The costs
of routine repairs and maintenance with respect to the Garage;


 


(x)       Legal fees for processing and defending claims
relating to the Garage;


 


(xi)      The costs
of bookkeeping, accounting, internal audit of parking tickets and preparation
of monthly reports with respect to the Garage;


 


(xii)     License and
permit fees with respect to the Garage;


 


(xiii)    Telephone, gas,
electric, water and any other utility charges with respect to the Garage;


 


(xiv)    Data
processing costs incurred to outside third parties for accounts receivable
invoicing and for the preparation of payroll and payroll-related reports with
respect to the Garage;


 


(xv)     Debit/credit
card discounts and service charges with respect to the Garage;


 


(xvi)    Security
costs pursuant to Section 7(a)(16) with respect to the Garage; and


 


(xvii)   Reasonable
and appropriate cost recovery allocation of APCOA home office overhead and
direct costs related to the operation of the Garage by ABPC, which is
consistent with APCOA’s general practices and in accordance with accepted
allocation standards. The above charges should be made based on actual costs as
calculated and allocated among all of APCOA’s locations and shall not include
profit to APCOA, nor profit sharing to its officers, directors or employees.


 


“Garage
Operating Expenses Account” is defined in Section 6(a)(2) of this
Lease.


 


“Garage
Operating Expenses Budget” is defined in Section 6(a)(2) of this
Lease.


 


“Garage
Trustee Expenses” is defined in Section 6(b)(1)(v) of this Lease.


 


“Government
Obligations” means (a) direct and general obligations of, or
obligations unconditionally guaranteed by, the United States of America, (b) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America for the timely payment thereof,
(c) municipal obligations the payment of principal (either to the maturity
thereof or an earlier stated redemption date), redemption price, if any and
interest on which is irrevocably secured by obligations described in clauses (a) or
(b) above which have been deposited in an escrow arrangement which is
irrevocably pledged to the credit of such municipal obligations and which
municipal obligations are rated at the time of


 


7














 


acquisition
or purchase in the highest rating category by Moody’s and Standard and Poor’s,
or (d) securities or receipts evidencing ownership interests in
obligations or specified portions (such as principal or interest) of
obligations described in clauses (a), (b) or (c) above the full and
timely payment of which securities receipts or portions of obligations is
unconditionally guaranteed as a full faith and credit obligation of the United
States.”


 


“Gross
Operating Revenues” shall have the meaning given to such term in the
Bradley Airport Parity Bond Indenture.


 


“Guaranteed
Payments” means, collectively, the Garage Guaranteed Payments and the
Surface Parking Guaranteed Payments as provided in Section 6(b) of
this Lease.


 


“Guarantor
Payments” is defined in Section 6(d) of this Lease. 


 


“Guaranty”
is defined in Paragraph E of the recitals of this Lease.


 


“Hazardous
Materials” means (i) any “hazardous waste” as now or hereafter defined
by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. section 6901
et seq.), as amended from time to time, or in regulations now or hereafter
promulgated thereunder; (ii) any “hazardous substance” as now or hereafter
defined by the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (42 U.S.C. section 9601 et seq.), as amended from time to time, or
in regulations now or hereafter promulgated thereunder; (iii) any “toxic
substance” as now or hereafter defined by the Toxic Substance Control Act 15
U.S.C. section 2601 et seq., as amended from time to time, or in regulations
now or hereafter promulgated hereunder; (iv) any “toxic pollutant” as now
or hereafter defined by the Federal Water Pollution Prevention and Control Act,
33 U.S.C. section 1251 et seq., as amended from time to time, or in regulations
now or hereafter promulgated hereunder; (v) any “air pollutant” as now or
hereafter defined by the Clean Air Act 42 U.S.C. section 7401 et seq., as
amended from time to time, or in regulations now or hereafter promulgated
thereunder; (vi) any “contaminant” now or hereafter defined by the Safe
Drinking Water Act, 42 U.S.C. section 300f, et seq., as amended from time to
time, or in regulations now or hereafter promulgated thereunder;
(vii) asbestos or any other “hazardous chemical” as now or hereafter defined
by the Occupational Safety and Health Administration (“OSHA”) pursuant to 29
U.S.C. section 655 or in any other regulation or rule now or hereafter
promulgated by OSHA; (viii) petroleum or petroleum derivatives;
(ix) polychlorinated biphenyls; (x) lead; (xi) underground storage
tanks, whether empty, filled or partially filled with any substance; (xii) any
substance the presence of which on the Project Site is now or hereafter
prohibited by any governmental authority; (xiii) any meanings given to such
terms in similar state or local statutes; and (xiv) any other hazardous waste
for which special handling or notification is now or hereafter required for its
collection, storage, treatment, use or disposal.


 


“Hazardous
Materials Contamination” means, with respect to soil, groundwater, air or
other elements on or of the Garage or the Surface Parking, the presence or
threatened release of any Hazardous Materials, or, with respect to buildings,
facilities, soil, groundwater, air or other elements of any other property, the
presence or threatened release of any Hazardous Materials at any time emanating
from the Garage, the Project Site or the Surface Parking.


 


8

















 


“Indemnified
Parties” is defined in Section 19A of this Lease.


 


“Issuance
Costs” means (i) payment of, or reimbursement to the State for, all
reasonable costs incurred in connection with, and properly allocable to, the
issuance of the Bonds including, but not limited to, legal and accounting fees
and expenses, financial consultants’ fees, financing charges (including
underwriting fees and discounts), printing and engraving costs, the fees and
expenses of Bond Counsel and the fees and expenses of rating agencies, and
(ii) any other cost incurred in connection with the issuance of the Bonds
that constitutes an “issuance cost” within the meaning of
Section 147(g) of the Code.


 


“Lease
Execution Date” means March       ,
2000, which is the date on which this Lease was fully executed by ABPC and the
State.


 


“Lease
Term” is defined in Section 3 of this Lease.


 


“Lease
Year” means each one-year period beginning on July 1st and ending on June 30th of the next year
during the Lease Term; provided that the initial Lease Year runs from the Lease
Execution Date to June 30, 2000 and the final Lease Year shall end on
March       , 2025, subject to extension as
provided herein.


 


“Leased
Premises” means, collectively, the premises constituting the Project Site,
the Garage and the Surface Parking, as presented in Exhibit N, which
may be amended from time to time by mutual agreement of the parties.


 


“License
Agreement” is defined in paragraph D of the recitals of this Lease.


 


“Major
Maintenance and Capital Improvement Fund Deposits” is defined in Sections
6(b)(1)(vi) and 6(b)(2)(iii) of this Lease.


 


“Net
Bond Proceeds” means the “net proceeds” of the Bonds as such term is used
in Section 142(a) of the Code and applicable Treasury Regulations,
all as defined in the Tax Compliance Certificate.


 


“Net
Proceeds” means the gross proceeds from the insurance with respect to which
that term is used remaining after payment of all expenses (including attorneys’
fees) incurred in the collection of such gross proceeds.


 


“Nonqualified
Costs” means the costs of the Garage paid in accordance with the terms of
the Trust Indenture which are not Qualified Costs; Nonqualified Costs include,
among other things, Issuance Costs.


 


“Post-Completion
Inspection” is defined in Section 4(g) of this Lease.


 


“Project
Site” is defined in paragraph B of the recitals of this Lease.


 


9

















 


“Punch
List” is defined in Section 4(g) of this Lease.


 


“Qualified
Costs” mean the costs of providing Airport Facilities.


 


“Regulated
Materials” is defined in Section 19A of this Lease.


 


“Remediation”
is defined in Section 19A of this Lease.


 


“Special
Obligation Refunding Bonds” means any bond or notes issued pursuant to the
authority contained in Section 2.8 of the Bradley Airport Parity Bond
Indenture and C.G.S. Chapter 266a whose proceeds are used to refund any prior
Bonds.


 


“State”
is defined in the preamble of this Lease.


 


“State
Construction Oversight Costs” is defined as the amount to be paid from the
Construction Fund to the State to monitor the construction of the Garage, and
said amount shall be $400,000.


 


“State
Minimum Guarantee” is defined in Sections 6(b)(1)(vii) and
6(b)(2)(iv) of this Lease, which aggregate amount shall constitute “ground
rental” for purposes of Section 2.8 of the Bradley Airport Parity Bond
Indenture.


 


“State’s
Gross Award” means the amount awarded to or received by the State as
damages, compensation, or otherwise, by reason of the taking of the Garage or
any part thereof as a result of or in anticipation of the exercise of the right
of expropriation, condemnation or eminent domain.


 


“Substantial
Completion”, with respect to the Garage, is defined in
Section 4(d) of this Lease.


 


“Substantially
Completed” means that the Substantial Completion of the Garage has
occurred.


 


“Surface
Parking” means the surface parking lots at the Airport for which ABPC has
responsibility during the Lease Term, which as of the date hereof, shall be
lots A, B, 1, 2, 3, 4, 5A, 5B and 6 and the Employee lot, all as shown on
Exhibit G hereto, which Exhibit G may be amended from time to time by
agreement of the State and ABPC; provided, however, that ABPC shall be deemed
to have agreed to any change or modification to the Surface Parking lots
location, size or configuration, which change is reasonably forecasted by the
State to result in no decrease in the amount of Additional Payments received by
the Developer after such change. Based upon demand, Lots 5A and 5B may be
operated as overflow lots, which ABPC shall open and close depending upon the
overall volume of use of the other Surface Parking lots.


 


“Surface
Parking Budget” is defined in Section 7(c) of this Lease.


 


10

















 


“Surface
Parking Gross Receipts” means, for any period with respect to the operation
of the Surface Parking, all sums collected by ABPC (including, but not limited
to, gross cash, gross debit card and gross credit card transactions) from the
parking of motor vehicles, whether on an hourly, daily, weekly or monthly
basis, plus all rent revenues, interest, license fees and any and all other
income fees or charges received with respect to ABPC’s lease, use possession,
and operation of the Surface Parking, including interest earnings on the
Surface Parking Operating Expenses Account required to be transferred to the
Custodian pursuant to Section 6(a)(4) hereof, less all State approved
refunds and promotional discounts and allowances made by ABPC to its customers,
and less any sales tax, use tax, excise tax, occupancy tax, gross receipts tax,
parking tax or any other tax or charge collected by ABPC on behalf of and
payable to any governmental or quasi-governmental entity.


 


“Surface
Parking Gross Receipts Fund” is defined in Section 6(b)(2) of
this Lease.


 


“Surface
Parking Guaranteed Payments” is defined in Section 6(b)(2) of
this Lease.


 


“Surface
Parking Major Maintenance and Capital Improvement Fund” is defined in
Section 6(b)(2) of this Lease.


 


“Surface
Parking Operating Expenses” means, for any period, all expenses paid in the
ordinary course of business in connection with the operation of the Surface
Parking which are reasonable and directly attributable thereto including,
without limitation:


 


	
  (i)

  	
   

  	
  Payment
  or deposit of Charges with respect to the Surface Parking as provided under
  Section 9(a) of this Lease;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  Payroll
  expenses and applicable payroll taxes for employees directly performing
  services for the Surface Parking, and including provision for vacation pay,
  pension, health and welfare programs and other benefit obligations;

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  The
  costs of insurance with respect to the Surface Parking as herein provided;

  
	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  The
  costs of supplies for the Surface Parking;

  
	
   

  	
   

  	
   

  
	
  (v)

  	
   

  	
  Laundry
  and uniforms for the Surface Parking;

  
	
   

  	
   

  	
   

  
	
  (vi)

  	
   

  	
  Postage
  for the Surface Parking;

  
	
   

  	
   

  	
   

  
	
  (vii)

  	
   

  	
  The
  costs of printing parking tickets and related forms for use exclusively at
  the Surface Parking;

  
	
   

  	
   

  	
   

  
	
  (viii)

  	
   

  	
  The
  payment of uninsured damage claims with respect to the Surface Parking;

  
	
   

  	
   

  	
   

  
	
  (ix)

  	
   

  	
  The
  costs of routine repairs and maintenance with respect to the Surface Parking;

  



 


11

















 


	
  (x)

  	
   

  	
  Legal
  fees for processing and defending claims relating to the Surface Parking;

  
	
   

  	
   

  	
   

  
	
  (xi)

  	
   

  	
  The
  costs of bookkeeping, accounting, internal auditing of parking tickets and
  preparation of monthly reports with respect to the Surface Parking;

  
	
   

  	
   

  	
   

  
	
  (xii)

  	
   

  	
  License
  and permit fees with respect to the Surface Parking;

  
	
   

  	
   

  	
   

  
	
  (xiii)

  	
   

  	
  Telephone,
  gas, electric, water and any other utility charges with respect to the
  Surface Parking;

  
	
   

  	
   

  	
   

  
	
  (xiv)

  	
   

  	
  Data
  processing costs incurred to outside third parties for accounts receivable
  invoicing and for the preparation of payroll and payroll-related reports with
  respect to the Surface Parking;

  
	
   

  	
   

  	
   

  
	
  (xv)

  	
   

  	
  Debit/credit
  card discounts and service charges with respect to the Surface Parking;

  
	
   

  	
   

  	
   

  
	
  (xvi)

  	
   

  	
  Security
  costs pursuant to Section 7(a)(l6) with respect to the Surface Parking;

  
	
   

  	
   

  	
   

  
	
  (xvii)

  	
   

  	
  All
  costs of shuttle bus service as described in Section 7(e) hereof
  with respect to the Surface Parking;

  
	
   

  	
   

  	
   

  
	
  (xviii)

  	
   

  	
  Reasonable
  and appropriate cost recovery allocation of APCOA home office overhead and
  direct costs related to the operation of the Surface Parking by ABPC, which
  is consistent with APCOA’s general practices and in accordance with accepted
  allocation standards. The above changes should be made based on actual costs
  as calculated and allocated among all of APCOA’s locations and shall not
  include profit to APCOA, nor profit sharing to its officers, directors or
  employees; and

  
	
   

  	
   

  	
   

  
	
  (xviii)

  	
   

  	
  Costs
  as defined in Section 12(b)(3) hereof.

  



 


“Surface
Parking Operating Expenses Account” is defined in
Section 6(a)(3) of this Lease.


 


“Surface
Parking Operating Expenses Budget” is defined in
Section 6(a)(3) of this Lease.


 


“Surface
Parking Custodian Expenses” is defined in Section 6(b)(2)(ii) of
this Lease.


 


“Surplus
Account” is defined in section 6(b)(3) of this Lease.


 


“Surplus
Moneys” is defined in Section 6(c) of this Lease.


 


“Target
Date” means May 31, 2002, subject to extension as set form in
Section 4(i) hereof.


 


12

















 


“Tax
Compliance Certificate” means that certificate executed by the State in
connection with the initial issuance of the Bonds and relating to those matters
necessary for the interest on the Bonds to be excluded from federal gross income.


 


“TBI”
is defined in paragraph C of the recitals of this Lease.


 


“Trustee
Payment” means, collectively, Guaranteed Payments, Reimbursement of
Guarantor Payments and Additional Payments.


 


“Trust
Indenture” is defined in paragraph C of the recitals of this Lease.


 


“Uncontrollable
Circumstance” means any act, event or condition that has had, or may
reasonably be expected to have, an adverse effect on the Substantial Completion
of the Garage by the Target Date as then currently defined, if such act, event or
condition is beyond the reasonable control of ABPC and the Construction
Manager. To the extent beyond the reasonable control of ABPC and the
Construction Manager, Uncontrollable Circumstances may include, but shall not
be limited to, the following:


 


	
  a.

  	
  an
  act of God, landslide, lightning, earthquake, fire, explosion, unusually
  severe weather conditions such as floods, hurricanes, dangerous icing,
  blizzards or tornadoes, natural disaster, acts of a public enemy, war,
  blockade, insurrection, riot, or civil disturbance or any similar occurrence,
  but not including reasonably anticipated weather conditions, for the
  geographic area of the Garage;

  
	
   

  	
   

  
	
  b.

  	
  a
  strike, walkout, work stoppage, or similar industrial or labor action
  affecting the construction of the Garage;

  
	
   

  	
   

  
	
  c.

  	
  the
  presence of any Regulated Material on the Project Site not caused by ABPC,
  the Construction Manager or any of their servants, agents, employees,
  contractors or subcontractors;

  
	
   

  	
   

  
	
  d.

  	
  any
  subsurface condition at the Project Site which requires a redesign or change
  in the construction or operation of the Garage; and

  
	
   

  	
   

  
	
  e.

  	
  an
  event of casualty or condemnation of the Project Site or the Garage.

  



 


“Work” shall have the
meaning given to such term in the Construction Management Agreement.


 


SECTION 2. Ownership of and Granting of
Leasehold Interest in the Project Site, Garage and Surface Parking. The State owns the Airport, including,
without limitation, the Project Site and the Surface Parking and shall own the
Garage and its component parts as the same are assembled, constructed or
installed on the Project Site. On the terms and subject to the conditions set
forth in this Lease, as of the Lease Execution Date, the State hereby leases


 


13

















 


the
Project Site, the Garage and the Surface Parking to ABPC, and ABPC hereby
leases the Project Site, the Garage and the Surface Parking from the State.
ABPC and its successors and assigns hereby agree that, for federal income tax
purposes, they will not claim any depreciation expense deductions or investment
tax credits which would impact the tax-exempt status of the Bonds. Title to all
materials purchased for the construction of the Garage shall vest in the State
simultaneously with the passage of title from the sellers of such material. On
January 31, 2000, the Concession Agreement shall terminate and be of no
further force and effect, and as of the Lease Execution Date this Lease shall
constitute the sole and complete agreement of the parties hereto.


 


As
the owner of the Airport, the State shall have the obligation, by itself or by
others, without limitation, to maintain the Airport for aircraft operations
pursuant to federal and State regulations and to provide, or cause to be
provided, all services reasonably necessary to the daily operation of the
Airport.


 


SECTION 3. Term. The term of this Lease (the “Lease Term”) and
the effectiveness of the rights and obligations of the parties hereunder shall
commence on the Lease Execution Date and continue until midnight on March       ,
2025, subject to extension and to earlier termination pursuant to the
provisions of this Lease. The parties agree that this Lease shall not be
effective until it has been approved by the Secretary, Office of Policy and
Management, the State Properties Review Board and the Attorney General, all
being of the State of Connecticut. ABPC shall have an option (the “Option”) to
make an offer to the State to extend the Lease Term with respect to the Garage
and the Surface Parking for up to two five-year terms upon terms and conditions
acceptable to the State and ABPC. The State shall have complete discretion to
accept, reject and/or negotiate the terms and conditions of any such extension,
including, without limitation, the period covered by any such extended Lease
Term. In order to exercise its Option hereunder, ABPC shall be required to
offer in writing the terms and conditions with respect to the extended Lease
Term at least 18 months prior to the end of the current Lease Term, as the same
may have been previously extended.


 


SECTION 4. Construction of the Garage.


 


(a) Obligation to Construct. ABPC shall cause the construction of the
Garage on the Project Site to be Substantially Completed on or before the
Target Date (subject to extension as provided in Section 4(i) below),
in accordance with the provisions of this Lease and the construction documents,
which heretofore have been approved by ABPC and the State, and such additional
construction drawings, plans and specifications as are necessary for the timely
construction of the Garage and which are hereafter submitted by ABPC to and
approved by the State from time to time (which approval shall not be
unreasonably withheld or delayed), as the same may be changed by Change Orders
(collectively, the “Construction Documents”).


 


In order to satisfy its obligations hereunder to construct the Garage,
ABPC shall enter into the Construction Management Agreement with the
Construction Manager, pursuant to which the Construction Manager shall agree to
cause the Garage to be constructed on the Project Site in accordance with the
Construction Documents and the provisions of this Lease, for the Fixed
Construction Price of $36,900,000 to be paid from the Construction Fund.


 


14

















 


Disbursement
requests for amounts on deposit in the Construction Fund shall be made in
accordance with the requirements of Section 5.2 of the Trust Indenture.
The State agrees to accept the satisfactory performance by the Construction
Manager of all obligations of ABPC relating to the construction of the Garage
including the making of disbursement requests on behalf of ABPC; provided that
the entering by ABPC into the Construction Management Agreement and the
performance by the Construction Manager thereunder shall not limit the right of
the State to enforce ABPC’s obligations hereunder. The State agrees to perform
at the reasonable request of the Construction Manager all obligations relating
to the construction of the Garage that it would have to perform at the request
of ABPC pursuant to this Lease. The warranty provisions of Section 4.7 of
the Construction Management Agreement are hereby incorporated in this Lease,
and the State agrees to accept the satisfactory performance by the Construction
Manager of its obligations thereunder as satisfaction of any such obligations
of ABPC hereunder with respect to such matters. The State and the Trustee shall
be intended third-party beneficiaries of the Construction Management Agreement.


 


The
State and ABPC shall cooperate to obtain a certificate of occupancy for each
portion of the Garage project (or other evidence reasonably acceptable to the
State which permits the occupancy and operation of each portion of the Garage)
at the earliest practical date, and thereafter ABPC shall operate such portion
of the Garage in accordance with the terms of this Lease.


 


(b) Change Orders. Changes in the Construction Documents may be
made solely by issuing change orders (“Change Orders”) in accordance with
Section 4.2 of the Construction Management Agreement. Any Change Order
shall be submitted to the State for its prior approval. The State shall use its
best efforts to respond to any proposed Change Order within 72 hours of its
submission to the State; provided, however, that in all cases, such response
shall be communicated to ABPC and the Construction Manager within three
business days of the submission of the proposed Change Order to the State. Any
increased cost or delay resulting from any Change Order not initiated by the State
shall be ABPC’s sole risk and shall not increase the Fixed Construction Price
to be paid from the Construction Fund.


 


(c) Insurance. See Section 11 of this Lease and
Articles IV and VIII of the Construction Management Agreement for the insurance
requirements.


 


(d) Substantial Completion. “Substantial Completion” of the Garage shall
be deemed to have occurred at such time that (1) ABPC or the Construction
Manager shall have delivered all of the following to the State and the Trustee:


 


(A)           A certificate of occupancy for the Garage (or
other evidence reasonably acceptable to the State which permits the occupancy
and operation of the Garage); and


 


(B)             A Certificate of Substantial Completion for
the Garage from an Independent Licensed Architect or Independent Licensed
Professional Engineer substantially in the form of AIA Document G704;


 


(C)             A Punch List prepared by ABPC and the State;
and


 


15

















 


(2) the
State shall have delivered to ABPC and the Trustee a written acknowledgement
that items (A), (B) and (C) above have been delivered to and accepted
by State; provided, however, that any period of time from the State’s actual
receipt of all of items (A), (B) and (C) to the time of the State’s
written acknowledgement (i) that such items have been delivered and are
accepted by the State and that Substantial Completion has occurred or
(ii) that the State does not believe the conditions for Substantial
Completion have occurred, shall not be counted in determining whether the
Garage has been Substantially Completed by the Target Date.


 


(e) State’s Certificate of Acceptance. Upon satisfactory completion of all work
listed on the Punch List, ABPC or the Construction Manager shall deliver to the
State a Certificate of Punch List Completion stating that all punch list items
have been satisfactorily completed. The State agrees to deliver to ABPC and the
Trustee, upon receipt, review and acceptance of said Certificate of Punch List
Completion, a certificate of acceptance of the Garage, substantially in the
form attached hereto as Exhibit C stating that (i) the Garage
was Substantially Completed on the date that the provisions of
Section 4(d) were satisfied and the (ii) Punch List is completed
(the “Certificate of Acceptance”).


 


(f) Site Plans and Surveys. Within 120 days after the Completion Date of
the Garage, ABPC shall deliver to the State original copies (or photocopies if
original copies are unavailable to ABPC) of all current site plans and surveys,
including (i) three complete sets of “as built” architectural and
engineering drawings, one of which is reproducible, showing the Garage and all
site improvements as constructed, in all material respects in accordance with
the Construction Documents, and (ii) other plans or studies that
materially relate to all or any part of the Project Site.


 


(g) Punch List. Prior to the Completion Date of the Garage,
the Construction Representatives of the State and ABPC shall inspect the Garage
for the purpose of arriving at a punch list of minor items to complete but
which will not otherwise delay the Completion Date of the Garage (the “Punch
List”). ABPC and the State together shall agree on the Punch List, provided
that either party shall be required to complete its participation in constructing
the Punch List within seven days of the date the other party completes its
participation. In addition, within 45 days after such Completion Date, the
Construction Representatives of the State and ABPC shall make another joint
physical inspection of the Garage (the “Post-Completion Inspection”) to list
any items of work which were not visible or were not noticed during the initial
inspection. Any such items shall be added to the Punch List. Any items on the
Punch List shall be promptly and diligently completed without interference with
the use and occupancy of the Garage, and in any event within 30 days after the
Post-Completion Inspection (or if the State and ABPC agree that any item cannot
reasonably be completed in such 30 days, ABPC shall cause such work to be begun
within such 30-day period and diligently pursued to completion).


 


(h) Construction Representatives. ABPC and the State shall each name a
“Construction Representative” who shall have full power and authority to act on
behalf of each party with respect to all construction and related matters.
ABPC’s Construction Representative shall initially be William A. Tomasso , and
the State’s Construction Representative shall


 


16

















 


initially
be Richard Jaworski. The State and ABPC may change at any time their respective
Construction Representative upon notice thereof to the other party.


 


(i) Extension of Target Date. The Target Date of May 31, 2002 may be
extended for up to two years, but in no event later than May 30, 2004,
upon the State’s approval as set forth in Section 4(i)(3) below of
the satisfaction of all of the following conditions for each such extension:


 


(1) The sole and direct cause for such extension shall be an
Uncontrollable Circumstance;


 


(2) There shall be delivered to the State and to the Trustee on a
date at least 45 days prior to the then existing Target Date written notice
from ABPC requesting State approval to extend the Target Date pursuant to this
Section 4(i) and (i) stating the type of Uncontrollable
Circumstance which has occurred and the reason therefor; (ii) the impact
of such Uncontrollable Circumstance upon the construction of the Garage;
(iii) the proposed remedy; and (iv) specifying the proposed extended
Target Date; and


 


(3) The State approves in writing such requested extension or such
modified extension as the State deems appropriate, provided, however, that the
State’s approval, modification or denial of such requested extension shall be
made in good faith, without undue delay and shall be based upon the State’s
review of (i) the Uncontrollable Circumstance which has occurred and the
reason therefor; (ii) the impact of such Uncontrollable Circumstance upon
the construction of the Garage; (iii) the proposed remedy; and
(iv) the proposed extended Target Date in light of the information
provided by ABPC, following the State’s review and analysis of the circumstance
surrounding the Uncontrollable Circumstance. Should the State deny or modify
the requested extension, it shall state its reasons in writing.


 


(j) Inspection of Garage and Project Site. The State (including the State’s
representatives, employees, agents and consultants) shall have reasonable
access to the Garage and the Project Site at all times for the purpose of
determining that construction is proceeding in accordance with the Construction
Documents.


 


(k) State’s Duty to Cooperate. The State shall cooperate fully with and use
reasonable efforts to assist ABPC in connection with its efforts to obtain all
permits, easements, agreements, licenses and other governmental and
quasi-governmental approvals and consents necessary or desirable in connection
with the construction of the Garage and ABPC’s fulfillment of its other
obligations hereunder, except that the State shall have no obligation itself to
apply for or obtain the same, nor shall the State share in the costs thereof;
provided further, that the State’s obligations under this paragraph shall not
be deemed to waive any legal power or authority of the State (or any agencies
or officials thereof) in connection with the issuance of any such permits,
easements, agreements, licenses, approvals or consents. During the construction
of the Garage and during the construction of any subsequent changes thereto
pursuant to the provisions of this Lease, the State shall provide ABPC with
suitable and


 


17














 


sufficient
temporary access and working space on and over other State property at the
Airport so as to allow ABPC to perform necessary construction of the Garage;
provided, however, that ABPC shall be granted such access only if, in the
State’s reasonable judgment, such access shall not have an adverse impact on
the operations or public safety other tenants, or public convenience and
necessity.


 


(I) Payment and Performance Bonds. Prior to the commencement of any stage or
phase of construction of the Garage, ABPC will furnish a suitable labor and
materials payment bond and a performance bond each in the full amount of the
cost to construct the Garage, guaranteeing the timely completion of the
construction of the Garage in accordance with the Construction Documents and
providing for the payment or protection of persons supplying labor or materials
in the prosecution of the work provided for in the Construction Documents. The
surety countersigning the payment and performance bonds shall be such firm or
corporation as the State shall find acceptable, and the form and substance of
any such bond shall be approved by the State. The State and the Trustee shall
be co-obligees of any such payment and performance bonds.


 


SECTION 5. Issuance of the Bonds. As a condition subsequent to the continuing
effectiveness of the provisions of this Lease and in order to provide funds for
the financing and refinancing of the Garage, subject to the terms and
conditions set forth in Section 2.8 of the Bradley Airport Parity Bond
Indenture, C.G.S. Chapter 266a and the Trust Indenture, either concurrently
with or as soon as practicable following the Lease Execution Date, the State
shall (to the extent permitted by law): cause the Bonds in the form of
long-term bonds to be issued and sold in a principal amount sufficient to
provide for the application of Bond proceeds as provided in the Trust Indenture
in an aggregate amount equal to the sum of: (1) the Fixed Construction
Price, (2) State Construction Oversight Costs, (3) Development Costs per
Exhibit K, (4) the amount to be deposited into the Capitalized
Interest Account, (5) the amount to be deposited into the Debt Service
Reserve Fund pursuant to the Trust Indenture, (6) any required payment to
a credit enhancement or liquidity support provider for credit enhancement or
liquidity support of the Bonds, (7) underwriter’s discount on the Bonds,
and (8) all other Issuance Costs in connection with the issuance and sale
of the Bonds.


 


SECTION 6. Flow of Funds and Payments. 


 


(a) Deposit of Gross Receipts:


 


(1) Garage Gross Receipts shall be deposited with the Trustee daily
and Surface Parking Gross Receipts shall be deposited with the Custodian daily.
Each shall be accounted for separately by ABPC, the Trustee and the Custodian,
as applicable.


 


(2) Beginning with the first month of the operation of the Garage,
and the collection of Garage Gross Receipts, the Trustee shall release to ABPC
for deposit into its Garage Operating Expenses Account (the “Garage Operating
Expenses Account”), from the daily Garage Gross Receipts, all amounts
collected, less amounts required for any Garage Guaranteed Payment, until such
time as two and one-half months of the current approved


 


18

















 


annual
Garage Operating Expenses Budget (the “Garage Operating Expenses Budget”) shall
be released to ABPC. For the balance of the month, all Garage Gross Receipts
collected shall be applied by the Trustee, as set forth in Section 6(b)(1) below.
For each succeeding month throughout the term of the Lease, the Trustee shall
release to ABPC for deposit into its Garage Operating Expenses Account from the
Garage Gross Receipts, on the fifteenth of each month, an amount equal to one
month of the current approved annual Garage Operating Expenses Budget.


 


(3) For the first month of the first Lease Year, as the Surface
Parking Gross Receipts are collected, the Custodian shall release to ABPC for
deposit into its Surface Parking Operating Expenses Account (the “Surface
Parking Operating Expenses Account”) from the daily Surface Parking Gross
Receipts, all amounts collected, less amounts required for any Surface Parking
Guaranteed Payment, until such time as two and one-half months of the current
approved annual Surface Parking Operating Expenses Budget (the “Surface Parking
Operating Expenses Budget”) shall be released to ABPC. For the balance of the
month all Surface Parking Gross Receipts collected shall be applied by the
Custodian as set forth in Section 6(b)(2) below. For each succeeding month,
throughout the term of the Lease, the Custodian shall release to ABPC for
deposit into its Surface Parking Operating Expenses Account from the Surface
Parking Gross Receipts, on the fifteenth of each month, an amount equal to one
month of the current approved annual Surface Parking Operating Expenses Budget.


 


(4) Interest earnings on the ABPC Garage Operating Expenses Account
and the Surface Parking Operating Expenses Account shall be treated as Garage
Gross Receipts and Surface Parking Gross Receipts, respectively from operations
and shall be transferred by ABPC to the Trustee or the Custodian, as applicable
upon the first business day of the month succeeding the posting of such
interest earnings in such Accounts.


 


(5) If at any time during the Lease Year ABPC encounters an
unanticipated, unbudgeted, extraordinary Garage Operating Expense or Surface
Parking Operating Expense, and the State approves the expense in writing, the
Trustee and/or the Custodian shall transfer in the manner defined by the State,
from the appropriate Gross Receipts Fund and/or Surplus Fund the funds required
to cover the approved costs.


 


(6) Upon State receipt and acceptance of an independent auditor’s
annual report, as required pursuant to Section 7(d) hereof, any
necessary adjustments in payments to the Trustee and/or the Custodian or
reimbursements due ABPC shall be executed prior to making any Additional
Payments, in accordance with Section 6(c).


 


(b) Trustee Payments:


 


(1) Garage Guaranteed Payments. Garage Gross
Receipts on deposit with the Trustee in the Garage Gross Receipts Fund
established therefor under the Trust Indenture (the “Garage Gross Receipts
Fund”), or secondly in the Garage Surplus Fund, shall be applied by the Trustee
to make the following payments (the “Garage Guaranteed Payments”) in the
following order, on the fifteenth day of each month (or, if


 


19

















 


not
a Business Day, on the next succeeding Business Day) from funds available at
the end of the previous month:


 


(i) Garage
Operating Expenses: For each month following the first month of Garage
operation, an amount equal to one month of the current approved annual Garage
Operating Expenses Budget.


 


(ii) Debt
Service:


 


(A) Beginning             ,
1/6th of the amount due as interest on the Bonds on the next Interest Payment
Date for the Bonds provided that the deposit immediately preceding such
Interest Payment Date shall be the balance necessary to make such payment, and


 


(B) Beginning             ,
1/12th of the amount due as principal of the Bonds, whether at maturity or
pursuant to mandatory sinking fund redemption, on the next Principal Payment
Date for the Bonds.


 


(iii) Debt
Service Reserve Fund: the amount necessary to restore any deficiency in the
Debt Service Reserve Fund (each a “Debt Service Reserve Fund Deficiency”).


 


(iv) Rebate
Fund: all required deposits into the Rebate Fund established under the Trust
Indenture (each a “Rebate Fund Deposit”).


 


(v) Garage
Trustee Expenses: Pay all State approved fees and expenses of the Trustee
related to the Garage and any and all reasonable costs and expenses (including,
without limitation, reasonable attorneys, fees and disbursements) incurred by
the Trustee, in enforcing its rights under the Guaranty (the “Garage Trustee
Expenses”), then due and payable.


 


(vi) Garage
Major Maintenance and Capital Improvement Fund: In accordance with the annual
amount required for the Garage Major Maintenance and Capital Improvement Fund
(the “Garage Major Maintenance and Capital Improvement Fund”), as stated in
Exhibit H, as such Exhibit may be amended from time to time by mutual
agreement of the parties, the monthly amount for the current Lease Year into
the Garage Major Maintenance and Capital Improvement Fund. This account shall
be an unrestricted interest bearing account. All interest earnings shall be
deposited into the account, remain in the account, and be available for payment
of eligible project costs. In accordance with the project schedule in
Exhibit H, as amended by mutual agreement of the parties, and upon
approval of the State, the Trustee shall pay ABPC for the project activities.
Such payments may be upon completion of the activity or partial payments for
the portion of the activity completed prior to the payment date. Final project
cost must be supported by detailed actual expenditure records in accordance
with State requirements.


 


20

















 


(vii) State
Minimum Guarantee: In accordance with Exhibit E, pay to the State any
portion of the monthly State Minimum Guarantee payment not paid from the
Surface Parking Gross Receipts Fund as provided in Section 6(b)(2)(iv) below.


 


(2) Surface Parking Guaranteed Payments. Surface
Parking Gross Receipts on deposit with the Custodian in the Surface Parking
Gross Receipts Fund established therefor under the Custody Agreement (the
“Surface Parking Gross Receipts Fund”) or secondly in the Surface Parking
Surplus Fund, shall be applied by the Custodian to make the following payments
(the “Surface Parking Guaranteed Payments”) in the following order on the
fifteenth day of each month (or, if not a Business Day, on the next succeeding
Business Day) from funds available at the end of the previous month:


 


(i) Surface Parking Operating Expenses: For each month following
the first month of the first Lease Year, an amount equal to one month of the
current approved annual Surface Parking Operating Expenses Budget.


 


(ii) Surface Parking Custodian Expenses: Pay all State approved
fees and expenses of the Custodian, related to Surface Parking and any and all
reasonable costs and expenses (including, without limitation, reasonable
attorneys, fees and disbursements) incurred by the Custodian, in enforcing its
rights under the Guaranty (the “Surface Parking Custodian Expenses”) then due
and payable.


 


(iii) Surface Parking Major Maintenance and Capital Improvement
Fund: In accordance with the annual amount required for the Surface Parking
Major Maintenance and Capital Improvement Fund (the “Surface Parking Major
Maintenance and Capital Improvement Fund”), as stated in Exhibit H, as
such Exhibit may be amended from time to time by mutual agreement of the
parties, the monthly amount for the current Lease Year into the Surface Parking
Major Maintenance and Capital Improvement Fund. This account shall be an
unrestricted interest bearing account. All interest earnings shall be deposited
into the account, remain in the account and be available for payment of
eligible project costs. In accordance with the project schedule in Exhibit H,
as amended by mutual agreement of the parties, and upon approval of the State,
the Custodian shall pay ABPC for the project activities. Such payments may be
upon completion of the activity or partial payments for the portion of the
activity completed prior to the payment date. Final project cost must be
supported by detailed actual expenditure records in accordance with State
requirements.


 


(iv) State Minimum Guarantee: In accordance with Exhibit E,
attached hereto, pay to the State the monthly amount of the annual State
Minimum Guarantee for the current Lease Year.


 


(3) Surplus Funds: Any amounts remaining in the
Garage Gross Receipts Fund shall be deposited by the Trustee into the Garage
Surplus Fund under the Trust Indenture and any


 


21

















 


amounts
remaining in the Surface Parking Gross Receipts Fund shall be deposited by the
Custodian into the Surface Parking Surplus Fund under the Custody Agreement
(collectively, the “Surplus Funds”).


 


(4) Reimbursement of
Guarantor Payments: To the extent sufficient funds are available therefor in
the appropriate Surplus Fund, after all Guaranteed Payments have been deposited
or paid for any month, the Trustee and the Custodian shall notify the State of
the amount of such funds and the State shall direct the Trustee and the
Custodian to reimburse APCOA in such amount, to the extent possible, for any
Guarantor Payments made by APCOA and not previously reimbursed, in accordance
with Section 5.07 of the Trust Indenture or Section       of  the Custody Agreement. Notwithstanding the
foregoing, APCOA shall not be reimbursed for any Guarantor Payments made during
an extension of the Target Date pursuant to Section 4(i) of this
Lease. APCOA shall be entitled to be reimbursed for the principal of such
Guarantor Payments, plus (a) the actual interest cost, if APCOA borrowed
funds to make such payment as certified by APCOA, or (b) an amount based
upon the prime lending rate, as published in the Wall Street Journal, on the
date of such Guarantor Payment to the Trustee or the Custodian, and adjusted
throughout the term of the reimbursement as the prime lending rate changes, if
APCOA utilized cash to make such payment, plus a premium of 10/12th of one percent per
month on the principal, up to a maximum of ten percent (10%). To the extent in
accordance with the provisions above, there are not sufficient moneys in the
Surface Parking Surplus Fund to reimburse Guarantor Payments made with respect
to Surface Parking Guaranteed Payments, such Guarantor Payments shall be
reimbursed from moneys on deposit in the Garage Surplus Fund to the extent that
there are sufficient funds therein.


 


(c) Additional Payments: To the extent that funds are available for
such purpose in the Garage Surplus Fund in accordance with the Trust Indenture
on the date of payment of the Additional Payments described below, after
payment in full of all Garage Guaranteed Payments for the completed Lease Year,
such funds shall be transferred by the Trustee from the Garage Surplus Fund to
the Custodian for deposit into the Surface Parking Surplus Fund under the
Custody Agreement. To the extent that funds are available in the Surface
Parking Surplus Fund under the Custody Agreement on the date of payment of the
Additional Payments described below (the “Surplus Moneys”), Additional Payments
in the order as described below (the “Additional Payments”), shall be paid
promptly by the Custodian, after payment in full of all Surface Parking
Guaranteed Payments for the completed Lease Year, and after receipt and
acceptance of the independent auditor’s annual report, as required pursuant to
Section 7(d) hereof with respect to such completed Lease Year:


 


(i) Developer Payment: The first $1,000,000 of Surplus Moneys (the
“Developer Payment”) shall be paid to ABPC, provided, however, that during the
first and last Lease Years, such Developer Payment amount shall be prorated for
the actual number of months in said years.


 


(ii) Reimbursement of Unpaid Developer Payments: To the extent any
Developer Payment is not paid to ABPC when due for any reason, Surplus Moneys
not needed to pay the currently due Developer Payment in full shall


 


22

















 


next
be used to pay accrued but unpaid Developer Payments in the order accrued.


 


(iii) State and Developer Additional Payments: The State and ABPC
shall share equally in Surplus Moneys up to the next $2,000,000 from the
balance remaining after payment and reimbursement in full of the Developer
Payments as provided in Section 6(c)(i)-(ii) above. There will be no
accumulation and reimbursement of annual shortfalls of such State and Developer
Additional Payments.


 


(iv) State and Developer Percentage Payments: The State shall
receive 85 percent and ABPC shall receive 15 percent of the balance of Surplus
Moneys remaining after payment and reimbursement of the maximum Developer
Payments and the maximum State and Developer Additional Payment as provided in
Section 6(c)(i)-(iii) above.


 


(d) APCOA
Guaranty: Pursuant
to the Guaranty, APCOA guarantees to pay the Trustee and the Custodian, as
applicable, funds sufficient to make any Guaranteed Payment for which the
Trustee or the Custodian has insufficient funds on deposit in the appropriate
funds to make the required payment on the scheduled payment date after
application thereto of amounts available therefor from all prior sources as
provided in Section 6(e) below, Article V of the Trust Indenture
and Section        of the Custody
Agreement, as applicable.


 


Notification and Payment: If the Trustee or the Custodian determines
that it does not have sufficient funds on deposit in the applicable fund or
account, at the end of any month to make any Guaranteed Payment for that month,
after application thereto of amounts available therefor from all prior sources
as provided in Section 6(e) below, Article V of the Trust
Indenture and Section       of the Custody
Agreement, as applicable, the Trust Indenture and Custody Agreement shall
provide that the Trustee and Custodian respectively shall notify the State and
APCOA by the fifth Business Day of the following month by telephone and
telecopier transmission, promptly confirmed by overnight express, of the amount
of the required payment (each, a “Guarantor Payment”). Within three Business
Days of such telephone and telecopier notice, APCOA shall wire funds in the
amount of the Guarantor Payment to the Trustee or the Custodian, as applicable.
Failure by APCOA to make any Guarantor Payment when due will be a default under
the Guaranty. Notwithstanding anything herein to the contrary, APCOA shall not
be obligated to make a Guarantor Payment or any portion thereof to the extent
such Guarantor Payment or portion thereof is solely caused by the failure of
the State to perform its obligations under the first sentence only of
Section 7(a)(4)(b) hereof.


 


(e) Order
of Sources to Pay Guaranteed Payments and Additional Payments:


 


(1) The Garage Guaranteed Payments shall be paid
from the following sources, in each case to the extent available, in the
following order:


 


(i)         Garage Operating Expenses:


 


1.          Garage Gross Receipts Fund;


 


2.          Garage Surplus Fund;


 


23

















 


3.         The Guaranty.


 


(ii)     Debt Service:


 


1.          Capitalized Interest Account, during the
capitalized interest period;


 


2.          Garage Gross Receipts Fund;


 


3.          Garage Surplus Fund;


 


4.          The Guaranty;


 


5.          Debt Service Reserve Fund;


 


6.          Trustee
funds available therefor as provided in the Trust Indenture, including, without
limitation, the application of the Debt
Service Reserve Fund to the final maturity or maturities of the Bonds as
provided therein; and


 


7.          Bond Insurance.


 


(iii)    Debt Service Reserve Fund Deficiency:


 


1.          Garage Gross Receipts Fund;


 


2.          Garage Surplus Fund;


 


3.          The Guaranty.


 


(iv)    Rebate Fund Deposit:


 


1.          Garage Gross Receipts Fund;


 


2.          Garage Surplus Fund; and


 


3.          The Guaranty.


 


(v)     Garage Trustee Expenses:


 


1.          Garage Gross Receipts Fund;


 


2.          Garage Surplus Fund;


 


3.          The Guaranty.


 


(vi)    Garage Major Maintenance and Capital Improvement Fund Deposits:


 


1.          Garage Gross Receipts Fund;


 


2.          Garage Surplus Fund;


 


3.          The Guaranty.


 


(vii)   State Minimum Guarantee Payments, to the extent not paid by Surface
Parking:


 


1.          Garage Gross Receipts Fund;


 


2.          Garage Surplus Fund;


 


3.          The Guaranty.


 


24

















 


(2)     The Surface Parking Guaranteed Payments shall
be paid from the following sources, in each case to the extent available, in
the following order:


 


(i)      Surface Parking Operating Expenses:


 


1.          Surface Parking Gross Receipts Fund;


 


2.          Surface Parking Surplus Fund;


 


3.          The Guaranty.


 


(ii)     Surface Parking Custodian Expenses:


 


1.          Surface Parking Gross Receipts Fund;


 


2.          Surface Parking Surplus Fund;


 


3.          The Guaranty.


 


(iii)    Surface Parking Major Maintenance and Capital Improvement Fund Deposits:


 


1.          Surface Parking Gross Receipts Fund;


 


2.          Surface Parking Surplus Fund;


 


3.          The Guaranty.


 


(iv)    State Minimum Guarantee Payments:


 


1.          Surface Parking Gross Receipts Fund;


 


2.          Surface Parking Surplus Fund;


 


3.          The Guaranty.


 


(3)     All Additional Payments shall be paid from Surplus Moneys only. 


 


(f)    Section 2.8 Bradley Airport Parity Bond Indenture:


 


(1)     The parties hereto agree that the Debt Service payments made pursuant to
Section 6(b)(1)(ii) above shall constitute the “fixed rentals” for
purposes of Section 2.8(2)(i) of the Bradley Airport Parity Bond
Indenture.


 


(2)     The parties hereto agree that the Debt Service Reserve Fund, Rebate Fund
and Garage Trustee Expenses payments made pursuant to Sections
6(b)(1)(iii)-(vi) above shall constitute the “further rentals” for
purposes of Section 2.8(2)(ii) of the Bradley Airport Parity Bond
Indenture.


 


(3)     The parties hereto agree that the State Minimum Guarantee payments made
pursuant to Section 6(b)(1)(vii) above shall constitute “ground rental” for
purposes of Section 2.8(3) of the Bradley Airport Parity Bond Indenture.


 


(4)     The parties hereto agree that the Surface Parking Custodian Expenses
payments made pursuant to Section 6(b)(2)(ii)-(iii) above shall constitute


 


25

















 


the
“further rentals” for purposes of Section 2.8(2)(ii) of the Bradley
Airport Parity Bond Indenture.


 


(5)     The parties hereto agree that the State Minimum Guarantee payments made
pursuant to Section 6(b)(2)(iv) above shall constitute “ground rental” for
purposes of Section 2.8(3) of the Bradley Airport Parity Bonds
Indenture.


 


(6)     The parties hereto agree that the State’s share, if any, of the State
and Developer Additional Payments and the State and Developer Percentage
Payments made pursuant to Section 6(c)(iii) and 6(c)(iv) above,
respectively, shall constitute “ground rental” for purposes of
Section 2.8(3) of the Bradley Airport Parity Bonds Indenture.


 


(7)     Notwithstanding anything else to the contrary herein, all “fixed rentals
and further rentals” which are not required to make the deposits or payments
set forth above shall be paid to the State for its own use and purposes in
accordance with the Bradley Airport Parity Bond Indenture.


 


SECTION 7. Use and Operation of the
Leased Premises. 


 


(a) General.


 


(1) The Leased Premises
shall be used by ABPC as parking facilities for motor vehicles and for any
other purpose necessary to the parking of motor vehicles (including
administrative functions), or as otherwise approved by the State. ABPC agrees
to operate the Leased Premises as parking facilities in accordance with good
business practices. The parking of any vehicle on a complimentary or validated
basis in the Garage or the Surface Parking shall not be allowed unless
previously authorized by the State.


 


(2) ABPC shall have the
right and obligation to manage and operate the Leased Premises as parking
facilities 24 hours a day, seven days a week, 52 weeks a year, in an efficient
and professional manner with sufficient personnel to minimize shuttle bus
delays and exit booth processing times, who shall be proficient in customer
service communication and shall be courteous, clean and neat at all times and
uniformed with proper identification. ABPC may operate Lots 5A and 5B as an
overflow lot, depending upon the overall volume of use of the other Surface
Parking lots. ABPC shall screen and train personnel, and further, shall make
the best effort to minimize staff turnover.


 


(3) ABPC shall provide,
the following services for the Leased Premises throughout the Lease Term:


 


(i) An on-site supervisor, 24 hours per
day, 365 days per year.


 


(ii) Positive control of traffic on and in the immediate vicinity
of the Leased Premises to direct patrons to available parking, prevent
unreasonable traffic


 


26

















 


delays
and direct patrons away from parking areas that are full. Such direction must
be accomplished by the use of proper signage and/or supervision to the
satisfaction of the Airport Administrator;


 


(iii) Removal of all abandoned and illegally parked vehicles. Such
removal will be coordinated with the State/Airport Police. Vehicles shall be
relocated to an impound area as authorized by the State;


 


(iv) Daily inspections of the Leased Premises with inspection
reports submitted to the Airport Administrator on a weekly basis. Reports shall
include any and all normal and abnormal conditions of pavement, equipment,
lighting, staffing levels, etc.;


 


(v) Upon notice, respond to all customer telephone complaints
within 24 hours and written complaints within seven days. The Airport
Administrator shall be advised of the outcome of each complaint. Complaints
received which pertain to matters outside the scope of ABPC’s authority shall
be forwarded to the Airport Administrator for review and reply; and


 


(vi) The establishment and maintenance of procedures to ensure that
only authorized personnel park in the Employee Lot, which may include the
existing automated vehicle identification system installed by the State. Said
system will be operated, maintained and replaced when necessary by ABPC.


 


(4) Gross
Revenue Pledge.


 


(a)      The State and ABPC hereby covenant that they shall maintain at all times
rates for parking at the Garage and the Surface Parking sufficient to result in
each year in Garage Gross Receipts in such amount to permit compliance with the
Garage Coverage Ratio, as defined in the Trust Indenture. If for any Lease
Year, as shown in the audited financial statements prepared for such Lease
Year, the Garage Coverage Ratio has not been met, the State and ABPC shall
promptly adjust rates for parking at the Garage and/or the Surface Parking such
that the Garage Coverage Ratio is projected to be met for the then-current
Lease Year.


 


(b)      The State and ABPC hereby approve and establish, and the State shall
implement, during each Lease Year of the Lease Term, the parking rates for the
Surface Parking and the Garage, respectively, which are attached hereto as
Exhibit F, which parking rates shall take effect automatically under the
provisions of this Lease; provided, however, that if at the end of any Lease
Year, the combined Surface Parking Gross Receipts and Garage Gross Receipts
received in that Lease Year exceed the target therefor set forth in the table
below, any scheduled parking rate increases for the succeeding Lease Year as
set forth in Exhibit F hereto shall not occur during such succeeding Lease
Year unless the State and ABPC mutually agree at such time that such rate
increases


 


27














 


for
such Lease Year shall be given effect, in whole or in part. In the event of an
increase or decrease in the combined Surface Parking Operating Expenses and
Garage Operating Expenses in any Lease Year which exceeds $300,000 when
compared with the amount budgeted therefor, the State and ABPC shall mutually
agree to modify Surface Parking parking rates and/or Garage parking rates in
order to compensate for such increase or decrease in such operating expenses.
In addition, if for any reason at the end of any Lease Year, the combined
Surface Parking Gross Receipts and Garage Gross Receipts received during such
Lease Year are less than the target therefor set forth in the table below, ABPC
shall notify the State of any non-scheduled increase in the parking rates for
the succeeding Lease Year necessary (in addition to the automatic
Exhibit F rate increases) to ensure that the combined Surface Parking
Gross Receipts and the Garage Gross Receipts target for such succeeding Lease
Year is met, and the State shall approve and establish such non-scheduled rate
increases. In addition, the State and ABPC may mutually agree, at any time
during the term of the Lease to adjust parking rates to respond to market and
economic conditions, as long as such parking rate adjustment does not adversely
affect any combined year-end Total of Surface Parking Gross Receipts and Garage
Gross Receipts listed below. No adjustment in Garage Parking Rates pursuant to
this paragraph, shall be made, unless the State and ABPC project compliance with
the Garage Coverage Ratio, after giving effect to such adjustment.


 


	
  Lease Year

  	
   

  	
  Combined Year-End Total: Surface Parking Gross Receipts and Garage Gross Receipts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1st

  	
   

  	
  $

  	
  3,283,816

  	
   

  
	
  2nd

  	
   

  	
  11,704,442

  	
   

  
	
  3rd

  	
   

  	
  18,228,322

  	
   

  
	
  4th

  	
   

  	
  21,765,495

  	
   

  
	
  5th

  	
   

  	
  22,024,572

  	
   

  
	
  6th

  	
   

  	
  22,287,535

  	
   

  
	
  7th

  	
   

  	
  22,554,444

  	
   

  
	
  8th

  	
   

  	
  22,825,356

  	
   

  
	
  9th

  	
   

  	
  25,781,090

  	
   

  
	
  10th

  	
   

  	
  26,061,905

  	
   

  
	
  11th

  	
   

  	
  26,346,933

  	
   

  
	
  12th

  	
   

  	
  26,636,237

  	
   

  
	
  13th

  	
   

  	
  26,929,879

  	
   

  
	
  14th

  	
   

  	
  30,396,540

  	
   

  
	
  15th

  	
   

  	
  30,732,834

  	
   

  
	
  16th

  	
   

  	
  31,074,170

  	
   

  
	
  17th

  	
   

  	
  31,297,651

  	
   

  
	
  18th

  	
   

  	
  31,524,484

  	
   

  
	
  19th

  	
   

  	
  35,079,930

  	
   

  
					



 


28

















 


	
  Lease Year

  	
   

  	
  Combined Year-End Total: Surface Parking 

  Gross Receipts and Garage Gross Receipts

  	
   

  
	
  20th

  	
   

  	
  35,344,022

  	
   

  
	
  21st

  	
   

  	
  35,612,076

  	
   

  
	
  22nd

  	
   

  	
  35,884,151

  	
   

  
	
  23rd

  	
   

  	
  36,160,307

  	
   

  
	
  24th

  	
   

  	
  38,305,919

  	
   

  
	
  25th

  	
   

  	
  38,602,961

  	
   

  
	
  26th

  	
   

  	
  24,689,898

  	
   

  



 


(5) As of the
Lease Execution Date, ABPC has: (1) pursuant to the Construction
Management Agreement, engaged the Construction Manager to perform each of
ABPC’s obligations under this Lease in connection with the construction of the
Garage, and (2) pursuant to the License Agreement, engaged APCOA to
exercise ABPC’s non-construction rights and perform ABPC’s non-construction
obligations under this Lease prior to the date that the Garage is Substantially
Completed. Effective as of the earlier of the date of Substantial Completion of
the Garage, or the expiration or termination of the License Agreement, pursuant
to the Assignment, ABPC has assigned all of its non-construction rights and non-construction
obligations under this Lease, to BAP, and BAP has agreed to exercise all of
ABPC’s non-construction rights and perform all of ABPC’s non-construction
obligations under this Lease, but specifically excluding, however, any
remaining construction obligations under this Lease as of such date of
Substantial Completion (including, without limitation, punchlist and warranty
work), which shall remain the responsibility of the Construction Manager under
the Construction Management Agreement. The State and the Trustee shall be third
party beneficiaries of APCOA’s obligations under the License Agreement and
BAP’s obligations under the Assignment with the ability to exercise ABPC’s
remedies thereunder in the event of a default by APCOA or BAP, respectively,
under such agreements. The License Agreement and the Assignment shall not be
amended, modified or terminated without the consent of the State and the
Trustee. In no event shall payment of the State Minimum Guarantee under this
Lease be deemed in any way to be a construction obligation.


 


(6) The State, its officers, agents and employees shall not be
responsible or liable for any loss of, or damage to, the property of ABPC or of
its patrons, guests or invitees while on the Leased Premises.


 


(7) The State shall have the right at any time during emergency or
crisis situations and at other reasonable times after due notice to ABPC to
enter the Leased Premises for the purpose of examining the state of repair and
condition of the Leased Premises and the equipment, and for the purpose of
determining whether the terms, covenants and conditions contained in this Lease
are being fully and faithfully observed and performed.


 


(8) With respect to the Leased Premises, ABPC shall provide for the
removal of snow and ice, the seeding, planting and cutting of grass and shrubs,
the prevention of erosion and the routine maintenance of all storm drains and
sewer lines within the Leased Premises which serve the Leased Premises. ABPC
shall in addition be responsible for the reconstruction, if necessary, of any
storm drains and sewer lines within the Leased Premises which (i) ABPC,


 


29

















 


its
agents or subcontractors, installed, or (ii) which, through ABPC’s
actions, negligence or lack of maintenance, require reconstruction.


 


(9) ABPC shall have the right to acquire, install operate and
maintain on the Leased Premises such improvements, equipment and supplies
required or appropriate for the operation of the Garage and the Surface Parking
pursuant to the terms of this Lease. ABPC will make a concerted effort to
employ the use of recycled materials and supplies whenever possible.


 


(10) ABPC agrees that it shall not permit hazardous or unreasonably
objectionable fumes, smoke or odors apart from those experienced in normal
maintenance and facility operation to reach areas above the surface of the
land, and that no unsightly accumulation of boxes, barrels, packages, junk,
wastepaper or equipment or other such articles shall be permitted on the Leased
Premises.


 


(11) ABPC agrees that the State, its agents, licensees and invitees
shall have in common with others the right to pass and repass within and upon
the Leased Premises with motor vehicles at no cost or expense to the State.


 


(12) ABPC agrees to operate its business on the Leased Premises so
as to comply with and conform to all applicable federal and State statutes and
regulations regarding, but not limited to, protection of the environment,
health, safety, nuisance and fire, so far as the Leased Premises are concerned.


 


(13) ABPC shall provide by itself or others a street-type sweeper
of adequate specifications and capacity, which will remain on the Leased
Premises. Said sweeper will be used to clean and maintain the Leased Premises
to the reasonable satisfaction of the Airport Administrator.


 


(14) ABPC shall recognize the authority of the Airport
Administrator or his designee in supervising the conduct of all activities at
the Airport. Compliance with the Airport Administrator’s rightful directions is
mandatory.


 


(15) Nothing contained in this Lease shall be construed to indicate
that ABPC has any rights at the Airport beyond the rights conveyed thereto
pursuant to this Lease.


 


(16) ABPC will provide, operate, maintain and monitor the security
systems installed in the Leased Premises, which shall include, without
limitation, video and audio surveillance systems in the Garage, panic buttons
throughout the surface lots, and provide courtesy patrols in numbers agreed
upon from time to time by the State to provide security and assistance to
parking patrons in the Garage and Surface Parking lots, as deemed necessary by
the State. ABPC shall promptly report any incidents requiring police response
to the State Police stationed at the Airport; provided, however, that ABPC
shall have no responsibility for providing police protection or reaction in
connection with the Leased Premises.


 


30

















 


(17) ABPC will man the exit booths of the Garage and the Surface
Parking lots to the satisfaction of the Airport Administrator. Patrons should
not wait in an exit line more than five minutes. ABPC shall anticipate peak
period staffing and staff accordingly.


 


(18) The State shall have the right to contract out to third
parties any non-parking service or concession on the Leased Premises, provided
such service or concession does not adversely affect ABPC’s operation of the
Garage and/or Surface Parking.


 


(b) Credit Cards and Debit Cards.


 


(1) ABPC
shall arrange to have all credit card companies make direct transfers each
business day, or as often as such credit card companies transfer credit card
receipts to APCOA or ABPC at comparable garages, of all debit card and credit
card receipts (net of service charges) from the operation of the Garage to a
special account established in the Garage Gross Receipts Fund. Although ABPC
shall not be responsible for such direct transfer by the credit card companies,
ABPC shall make every effort which it is capable of making to insure that the transfer
is accurate and is made every business day, or as often as set forth above.
ABPC shall immediately cooperate with the State to determine what further
remedial action, including, without limitation, substitution of another credit
card company to perform the transfers, should be taken if its best efforts to
correct the problem with the defaulting credit company are not sufficient to
restore the appropriate transfers. The parking of any vehicles on a
complimentary or validated basis anywhere in the Garage will not be allowed
unless previously authorized and agreed to by the State.


 


(2) ABPC
shall arrange to have all credit card companies make direct transfers each
business day or as often as such credit card companies transfer credit card
receipts to APCOA or ABPC at comparable garages, of all debit card and credit
card receipts (net of service charges) from the operation of the Surface
Parking to a special account established in the Surface Parking Gross Receipts
Fund. Although ABPC shall not be responsible for such direct transfer by the
credit card companies, ABPC shall make every effort which it is capable of
making to insure that the transfer is accurate and is made every business day,
or as often as set forth above. ABPC shall immediately cooperate with the State
to determine what further remedial action, including, without limitation,
substitution of another credit card company to perform the transfers, should be
taken if its best efforts to correct the problem with the defaulting credit
company are not sufficient to restore the appropriate transfers. The parking of
any vehicles on a complimentary or validated basis anywhere in the Surface
Parking lots will not be allowed unless previously authorized and agreed to by
the State.


 


(c) Revenue Control.


 


(1) The parties mutually agree that ABPC shall install, operate and
maintain state-of-the-art revenue control equipment and computer software for
each of the Surface Parking lots and the Garage, approved by the State, and
with consideration of the economic viability of such systems on the Leased
Premises including but not limited to, entrance and exit barrier gates to
insure optimum accountability for ABPC’s operation of the Surface Parking and
the


 


31

















 


Garage.
Revenue control equipment must, at a minimum, be machine readable with a fee
computing cashier terminal for on-line status and such system shall provide:


 


(i)      Facility Grand Total — Total Report 


— by day, by lot and for the
entire Garage


 


(ii)     Summary Cashier Report 


— by day, by lot and for the
entire Garage


 


(iii)    Transaction Detail Report 


— by day, by lot and for the
entire Garage


 


(iv)    Rate Classification Report


— revenue for specific time
durations, i.e. 0-1 hour, 1-1/2 hours, etc.


 


(2) The
overnight license plate inventory system shall be a separate system independent
of the fee computing revenue control equipment and reporting. ABPC agrees to
replace or upgrade the approved revenue control equipment and computer software
as necessary, but in any event at least once every 7 years during the Lease
Term. The inventory system shall provide:


 


(i)      Overnight inventory listing by day, by lot and
for the entire Garage; and


 


(ii)     Inventory stratification detailing quantity,
length of stay and value of inventory.


 


(3) ABPC
shall provide the following services for the Leased Premises throughout the
Lease Term:


 


(i)      Maintenance and repair of all revenue control equipment for the Leased
Premises. Such maintenance and repair shall ensure that the revenue control
will be machine readable and in on-line status. Machine readable shall mean
parking tickets will be read by the fee computer which will automatically
calculate the correct fee without cashier interference and on-line will mean
all fee computers will be connected to a central computer and transmit data at
least every 15 minutes to a data base; and


 


(ii)     Reports to the State, to include, but not be limited to:


 


a. Monthly, the number of transactions per fee category, per day,
per parking lot and for the entire Garage, including a monthly summary of each
category;


 


b. Daily, the number and amount of revenue tickets collected per
day, per lane, per parking lot and for the entire Garage, including a


 


32

















 


statement
of Garage Gross Receipts and Surface Parking Gross Receipts;


 


c. Weekly, an overnight inventory of each parking lot and the
entire Garage, and daily the overnight vehicle count of each parking lot and
the entire Garage;


 


d. Monthly, the number of lost, validated and unaccounted for
tickets per day, per Surface Parking lot and for the entire Garage. ABPC shall
be responsible for identifying lost tickets together with the calculation of
the amount due the State for said tickets in accordance with the schedule
outlined below in Section 7(b)(4)(ii); and


 


e. Monthly, a list of any Refunds (i.e. overcharges or incorrect
fees), promotional discounts and allowances by ABPC to its customers. “Refund”
shall be defined as the return of any fees collected from the customers of the
Leased Premises in accordance with State approved procedures. Such report must
be submitted to the Airport Administrator no later than five working days after
the end of the previous month.


 


(4) The
parties agree to the following with respect to non-paid and unaccounted for
customer tickets:


 


(i)      All non-paid customer tickets shall be signed by (a) the customer,
if available, (b) ABPC’s shift employee and (c) ABPC’s facility
manager or an authorized representative of ABPC, and shall state the license
plate number of the non-paying vehicle and note the reason for non-payment. The
State shall have the right to allow for free parking by certain State
employees, official visitors and others designated by the State, provided that
such free parking shall be without penalty or expense to ABPC.


 


(ii)     ABPC shall pay to the State, at its sole cost and expense, and the same
shall be not treated as Garage Operating Expenses or Surface Parking Operating
Expenses nor be reimbursable under the terms of this Lease, for all unaccounted
parking tickets that equal or exceed 0.3% of the total number of tickets per
month for all Surface Parking Lot and the Garage in accordance with the
following schedule. Once the combined 0.3% threshold is attained, all Unaccounted
For Tickets are assessed at the applicable penalty value:


 


	
  Percent
  of Unaccounted For Tickets

  	
   

  	
  Penalty

  
	
   

  	
   

  	
   

  
	
  0.0%
  to less than 0.3%

  	
   

  	
  =
  $0.00 x Total Number of Unaccounted For Tickets

  



 


33

















 


	
  Percent
  of Unaccounted For Tickets

  	
   

  	
  Penalty

  
	
  0.0%
  to less than 0.7%

  	
   

  	
  =
  $10.00 x Total Number of Unaccounted For Tickets

  
	
   

  	
   

  	
   

  
	
  0.0%
  to less than 1.0%

  	
   

  	
  =
  $15.00 x Total Number of Unaccounted For Tickets

  
	
   

  	
   

  	
   

  
	
  0.0%
  to 1.0% or more

  	
   

  	
  =
  $20.00 x Total Number of Unaccounted For Tickets

  



 


“Unaccounted
For Tickets” shall mean, with respect to the operation of the Leased Premises,
the number of tickets which are equal to the sum of the daily beginning vehicle
inventory plus the daily number of tickets issued, minus the daily number of tickets
collected, minus the daily ending vehicle inventory.


 


(5) ABPC shall insure the integrity of the revenue control system
at all times during the Lease Term. This includes, but is not limited to, power
outages. ABPC will install a sufficient generator as a backup emergency power
system.


 


(6) ABPC shall ensure that its employees and agents are properly
trained in the operation of the revenue control systems installed at the Leased
Premises.


 


(7) ABPC shall
install an automated credit card system, which will allow the customers of ABPC
an option of paying via credit card, no later than upon completion of Phase I
of the Garage. Prior to any such installation, all plans therefor must be
submitted in writing and approved by the State.


 


(8) ABPC shall install “pay on foot” or express credit card exit
lanes, as mutually agreed to with the State, no later than upon completion of
Phase I of the Garage.


 


(9) ABPC shall install Automatic Vehicle Identification (AVI) lanes
and provide for corporate invoicing, no later than upon completion of Phase I
of the Garage. Implementation plans therefor must be submitted in writing and
approved by the State.


 


(10) ABPC shall consider any new services, technologies, etc., and
implement those, which would provide enhanced customer service.


 


(11) All revenue control system equipment costs paid pursuant to
this Section 7(b) which are not paid from Bond proceeds shall not be
treated as Garage Operating Expenses or Surface Parking Operating Expenses, but
shall be paid or reimbursed from amounts on deposit in the Garage or Surface
Parking Major Maintenance and Capital Improvement Funds respectively.


 


34

















 


(d) Budget


 


ABPC
shall prepare and deliver to the State, at least 45 days prior to the
commencement of each Lease Year: (a) a budget reflecting the Garage Gross
Receipts which ABPC expects to receive and the Garage Operating Expenses which
ABPC expects to incur during the forthcoming Lease Year of Garage operation
(the “Garage Budget”) and (b) a budget reflecting the Surface Parking
Gross Receipts which ABPC expects to receive and the Surface Parking Operating
Expenses which ABPC expects to incur during the forthcoming Lease Year of
Surface Parking operation (the “Surface Parking Budget” and collectively with
the Garage Budget, the “Budgets”), such Budgets to be reviewed and approved by
the State. If the State for any reason does not respond to any proposed Budget
within 45 days after the State’s receipt thereof, or if the parties fail to reach
agreement as to a Budget for the following Lease Year, then such Budget for
such following Lease Year shall be the Budget for the preceding Lease Year,
increased by the percentage increase in the CPI for the month of
April preceding the beginning of the Lease Year. “CPI” means the United
States Department of Labor, Bureau of Labor Statistics, Consumer Price Index
for all Urban Consumers (CPI-U) unadjusted US city average all items with index
base period (1982-84=100). If the base 1982-84=100 is changed by the United
Stated Department of Labor, the parties agree to apply the new base. If the CPI
shall not exist in the same format as set forth in this section, State shall
substitute an official index published by the Bureau of Labor Statistics, or
successor or similar governmental agency, as may then be in existence and shall
be most nearly equivalent thereto for Hartford, Connecticut.


 


(e) Recordkeeping, Reporting and Audits:


 


A. Recordkeeping: Separate records and books of accounts must be
maintained for the Garage operation and the Surface Parking operation. ABPC
will maintain its books and records in such a manner to enable both the
preparation of annual financial statements in accordance with generally
accepted accounting principles and the calculation of the payment distributions
as prescribed in this Lease.


 


ABPC
shall maintain at a location within the State of Connecticut or another
reasonable location as may be approved in advance by the State, in a manner
acceptable to the State, true and complete records and accounts of all items
and transactions necessary to prepare and verify the accuracy of the financial
position and results of the parking operations which are the subject of this
Lease. The State hereby approves the location of central records with respect
to such matters in Chicago, Illinois.


 


ABPC
agrees to give the State’s and the Trustee’s authorized representatives’ access
during reasonable hours to such books and records. ABPC agrees that it will
keep and preserve or cause to be kept and preserved for three (3) years
after the audits required by Section 7(d)C are accepted by the State, all
books and records which are the subject of its recordkeeping obligation under
this Section 7(d)A. If any litigation, claim or audit is started before
the expiration of the three year period, such records shall be retained until
all litigation, claims or audit finding involving the records have been
resolved.


 


B. Financial
Statement Preparation: ABPC agrees to prepare or cause to be prepared true and
accurate annual financial statements in conformity with generally accepted
accounting


 


35

















 


principles
and supplementary information as described below. The financial statements must
reflect the results of operations of the Leased Premises only, and not be
combined or consolidated with the results of any other enterprise.


 


In
addition to the financial statements, the following schedules of supplementary
information must also be presented:


 


1.       An income
statement for each of the Garage operation and Surface Parking operation that,
in total, agrees with the entity’s overall income statement.


 


2.       A
schedule of gross receipts and operating expenses prepared on the cash basis
for each of the Garage operation and Surface Parking operation, with a
reconciliation of the cash basis gross receipts and operating expenses with the
accrual basis revenue and operating expenses presented in the income statement
described above in item #1.


 


3.       A
schedule detailing the status of Guarantor Payments, including accrued
interest, the premium amount, advance repayments and outstanding balance.


 


4.       A
schedule of outstanding Developer Payments.


 


5.       A
schedule which presents the calculation of Additional Payments due ABPC and the
State in accordance with Section 6(c). For the purposes of this
calculation, Guaranteed Payments excluding operating expenses which are
developed in #2 above) are to be considered deductions for the Lease Year which
provided the funds for such payments; i.e. Guaranteed Payments made on
July 15 from funds available as of June 30 are to be considered
Guaranteed Payments for the Lease Year ended that June.


 


All
items presented in the schedules required by item #3, #4 and #5 must be
reconciled to the financial statements or schedules if the amounts presented in
these schedules differ from that presented in the financial statements or other
schedules.


 


6.       A
detailed listing of fixed assets(i.e. equipment, furniture, etc.) purchased
with parking operating gross receipts and/or bond proceeds.


 


7.       A
schedule of the Garage and Surface Parking Major Maintenance and Capital
Improvement Funds detailing the deposits, interest earnings and expenditures
plus a supporting schedule which accumulates the expenditures by project.


 


8.       A
schedule showing compliance with the Garage Coverage Ratio for the preceding
Lease Year.


 


Such
annual financial statements and supplementary information shall be prepared and
delivered to the State and the Trustee within sixty (60) days following each of
the hereinafter specified events where appropriate:


 


36

















 


(a)     The end of each Lease Year of the specified term of this Lease;


 


(b)     The end of each Lease Year of any bonafide extension of the specified
term of this Lease, if any;


 


(c)     The effective date of termination of this Lease, in the event of
termination of this Lease prior to the completion of the specified term of this
Lease or prior to the completion of the extended term of this Lease specified
in any bona fide extension hereof, if any.


 


C. Audits:
The annual financial statements and supplementary information required by
Section B hereinabove shall be prepared by an independent CPA, as defined
by Chapter 389 of the Connecticut General Statutes, retained by ABPC and
reasonably satisfactory to the State. ABPC shall allow the CPA full and
unrestricted access to books and records and APCOA shall allow the CPA full and
unrestricted access to the books and records associated with ABPC and to any
information which is necessary to attest to the reasonableness of APCOA home
office overhead and direct costs charged to ABPC. The financial statements
audit shall be performed in accordance with generally accepted auditing
standards and the auditor shall express an “ in relation to” opinion on the
schedules of supplementary information.


 


The
cost of this audit will be allocated between the Garage operation and the
Surface Parking operation and will be considered a Trustee expense and, as
such, will not be included in the Budgets. Upon acceptance by the State of the
audit, the Trustee will be directed to pay the audit firm for the cost of the
audit or to reimburse APCOA for the proportional share of the audit
attributable to the parking operation at the Airport.


 


While
it is the intent of the State to rely on the certified statements(s) of
the CPA, the State hereby reserves the right to review, examine and/or audit
the records of ABPC and APCOA and the workpapers of the said CPA.


 


(f) Airport Shuttle Bus Service.


 


(1) In
connection with the operation of the Airport shuttle bus service, the State
does hereby grant to ABPC and ABPC hereby accepts:


 


A.
The right and obligation to conduct and operate (or cause to be operated) a
free, 24-hour shuttle bus service for Airport users, passengers, Airport
employees, and others needing transportation between the Surface Parking and
the Employee Lot, and the Airport’s terminal buildings. ABPC shall have the
right to contract with R&G Parking or any other operator, mutually
acceptable to the State and ABPC, to provide the shuttle bus service required
under the provisions of this Lease.


 


37














 


B. The obligation to provide, at a
minimum, seven 15-passenger buses (including the driver) on a 24-hour schedule
and on-call basis for shuttle bus service. If a vehicle is out of service or
breaks down, a replacement vehicle must be in service no later than one hour
after the vehicle is out of service. ABPC also agrees to make its reasonable
and best efforts to ensure that no passenger shall wait more than five minutes
for the arrival of any shuttle bus.


 


C. The acknowledgement and obligation
that peak hours, holiday periods, and “emergency” conditions may require
additional vehicles and/or changes to the shuttle bus operating schedule in
order to provide an adequate number of seats and so as not to leave any
customer waiting longer than five minutes for future shuttles. The adequacy of
such service will be determined at the sole discretion of the Airport
Administrator and any additional service, if needed, shall be supplied within
one hour after such determination of its need and notice to ABPC.


 


D. The obligation to ensure that all
buses used in the shuttle bus operation will be equipped with FCC approved
radios. ABPC shall install a minimum of one radio base station at an agreed
upon location to insure continuous communication between all buses and lot booths.
ABPC has the obligation to equip each bus with adequate heat, air conditioning
and luggage space. Lift equipment must be available in accordance with
Section 14-97b of the Connecticut General Statutes. ABPC also must comply
with any applicable requirements under of the Americans with Disabilities Act
of 1990, as amended from time to time.


 


E. All shuttle bus drivers shall be
outfitted in uniforms and nametags as approved by the Airport Administrator.
The State reserves the right to demand the removal of ABPC’s shuttle bus
personnel for just cause as determined by the State. No vehicles used in the
shuttle bus service operation shall ever be more than five years old throughout
the Lease Term. Scheduled vehicle servicing and maintenance shall, at no time,
be performed in the parking lots or other public areas of the Airport. A no
tipping policy must be exhibited in each bus and shuttle shelter.


 


F. The responsibility to display the
Bradley International Airport logo.


 


G. The responsibility to provide signs
for all shuttle bus vehicles designating that shuttle service is provided. The
design, size, style and color of all signs will be satisfactory to the Airport
Administrator and ABPC.


 


H. The responsibility to comply with
State and federal laws regarding alternative fueled vehicles, replacement and
use regulations.


 


I. ABPC shall immediately remediate
and/or contain any spill or release of any hazardous, toxic, material or waste
caused by ABPC or its agents in connection with the operation of the Airport shuttle
bus service. In addition, ABPC shall immediately report the spill or release to
the on duty Airport Operations Manager.


 


38

















 


J.
The responsibility to provide buses at no charge for Airport operations in an
emergency situation and for other non-routine operational needs, that do not
interfere with ABPC’s service level requirements, or in circumstances where
such service level requirements are waived by the State, the State will give as
much advance notice as possible and will keep requests at an occasional
frequency.


 


(2) ABPC
shall maintain in good repair and safe working order, all shuttle bus vehicles
owned and/or leased to or by ABPC for its use under this Lease. In this regard,
ABPC shall establish preventive maintenance schedules and perform such for all
shuttle bus vehicles, which schedules must receive the prior written approval
of the Airport Administrator, further ABPC shall comply with the following:


 


(i)                  All shuttle bus vehicles shall be kept in
safe, sanitary and top operating condition during the Lease Term;


 


(ii)               Maintenance, servicing and repairs of the
shuttle bus vehicles that are covered by warranties shall be performed in
compliance with the terms and conditions of such warranties. ABPC shall seek
promptly to enforce all applicable warranties as necessary;


 


(iii)            ABPC shall institute a daily inspection
program of the shuttle bus vehicles and shall repair or have repaired any
exterior or interior damage promptly and, in any case, not less than 10
calendar days following detection of damage. ABPC shall immediately remove any
shuttle bus vehicle from operation and repair or have repaired any damage or
defect that would affect the safety and comfort of Airport patrons or others;
and


 


(iv)           ABPC shall wash the exterior and clean the interior of each shuttle bus
vehicle at regular intervals so as to assure that such vehicles are kept in a
clean and presentable condition at all times, as determined by the Airport
Administrator.


 


SECTION 8. Unlawful Use/Permitted Uses. ABPC agrees that the Leased Premises shall be
used and occupied in a careful, safe and proper manner; that no nuisance or
waste shall be committed or permitted upon or any damage be done to the Leased
Premises; and that ABPC shall not conduct or permit to be conducted upon the
Leased Premises any business or conduct or permit any act which is contrary to
or in violation of, and ABPC shall comply with, the laws and regulations of the
United States of America, the State and any other governmental authority or
agency applicable to the Leased Premises and with the rules, regulations and
requirements that may be imposed by any insurance companies under which the
Leased Premises are insured.


 


SECTION 9. Payment of Taxes and
Assessments. (a) Except as
hereinafter provided in Section 9(b), during the Lease Term, ABPC shall
pay, before any fine, penalty, interest or cost may be added thereto, or become
due or be imposed by operation of law for nonpayment thereof, all taxes,
payments in lieu of taxes (“PILOT”), assessments, water and


 


39

















 


sewer
rents, rates and charges, charges for public utilities, excises, levies and all
other license and permit fees and other governmental charges, which at any time
during the Lease Term may be assessed, levied, imposed upon or become due and
payable out of or in respect of, or become a lien on the income or operation of
the Garage or the Surface Parking or any part thereof or any appurtenance
thereto or any use or occupancy of the Garage or the Surface Parking (all of
which being hereinafter referred to as the “Charges”, and any of the same being
hereinafter referred to as a “Charge”); provided, however, that, all such
Charges shall be prorated as of the date of termination of this Lease and
ABPC’s obligation for same hereunder shall be in effect only with respect to
the Lease Term. In addition, during the Lease Term, ABPC hereby agrees to pay
all costs connected with the ownership, operation, maintenance, repair, renewal
and rehabilitation of the Garage (including, without limitation, insurance,
utilities, taxes or payments in lieu of taxes and assessments) such that the
amounts payable therefrom to the State as State Minimum Guaranteed payments
shall be free and clear of all charges, whether or not the Garage is used or
occupied, or capable of being used or occupied, by ABPC or APCOA. ABPC shall
reimburse annually to the State, the amount of the PILOT payments made by the
Bradley Enterprise fund with regards to the Leased Premises. The State will
notify ABPC of the current Lease Year PILOT reimbursement amount on or about
the 1st of September. ABPC will pay the State the amount of the PILOT payment
within 10 days of notification.


 


(b) Notwithstanding
the provisions of Section 9(a) to the contrary, ABPC shall have the
right to contest the amount or validity, in whole or in part, of any Charge by
appropriate proceedings diligently conducted in good faith, and may postpone or
defer payment of such Charge, excluding PILOT, during the pendency of such
proceedings. Upon the termination of any such proceedings ABPC shall pay the
amount of such Charge or part thereof as finally determined in such
proceedings, the payment of which may have been deferred during the prosecution
of such proceedings, together with any costs, fees, interest, penalties or
other liabilities in connection therewith. The State agrees to cooperate in any
actions ABPC initiates pursuant to this Section 9(c).


 


(c) Since the State will be the owner in fee simple
of the Garage, the State shall obtain documentation from the Commissioner of
Revenue Services of the State substantially in the form attached hereto as
Exhibit N (a copy of which shall be supplied to ABPC), which by its terms
may be relied upon by ABPC, stating that the Construction Manager or any
contractor or subcontractor purchasing materials or supplies that are to be
physically incorporated into the Garage may furnish its suppliers with a
completed contractor’s purchase exemption certificate and that neither ABPC nor
the Construction Manager nor any such contractor or subcontractor will be
liable for the Connecticut sales tax or use tax with respect to such purchases.
ABPC hereby acknowledges and agrees to comply with Chapter 219 of the Connecticut
General Statutes pertaining to tangible personal property or services rendered
that is/are subject to sales tax. If ABPC or the Construction Manager or any of
its contractors or subcontractors shall at any time be required to pay any
sales tax or use tax to the State relating to the purchase of such materials
for the construction of the Garage, ABPC shall be permitted to treat such
payments as a Charge or a Garage Operating Expense in the first Lease Year in
which such payments are made, provided proof of payment of such sales tax or
use tax shall be promptly delivered to the State. This
Section 9(c) shall not apply to any personal property purchased by
ABPC or the


 


40

















 


Construction
Manager or any of its contractors or subcontractors, which does not become
physically incorporated into the Garage.


 


SECTION 10. Utilities and Service Contracts. The State shall provide and maintain or cause
to be provided and maintained, at its own expense, to the boundary of the Leased
Premises, all of the following utility systems: water, sewer, electricity and
gas. ABPC’s obligations under this Lease are conditioned upon the State
providing and maintaining such utility systems to the boundary of the Leased
Premises. The State shall also be responsible for maintaining all underground
utility equipment and systems to the boundary of the Leased Premises. The State
shall be responsible for all utilities that are within the Leased Premises, but
which do not serve the Leased Premises, except that ABPC shall be responsible
for any damage caused to such utilities by its actions or negligence.


 


ABPC
shall make in its name and for its benefit, and shall pay for, all utilities
and service contracts for the Garage and the Surface Parking, including, but
not limited to, water, sewer, gas, telephone, electricity, fuel, oil, vermin
extermination, trash removal, snow removal and other necessary services used in
connection with the Garage and the Surface Parking. ABPC shall cause to have
installed electrical meters at the Garage and Surface Parking lots, with ABPC
being the billed party.


 


SECTION 11. Insurance. (a) ABPC shall cause to be placed and
kept in force, prior to Substantial Completion, builder’s “all risk” hazards
insurance coverage, and after Substantial Completion, “all risk” hazard
insurance, in both cases, in an amount equal to the replacement cost of the
Garage and all other improvements and personalty on the Leased Premises, as
reasonably determined by ABPC from time to time and approved by the State.


 


(b) With
respect to the operations which ABPC performs under the terms of this Lease and
also those performed for ABPC by subcontractors, ABPC shall carry for the
duration of this Lease and any supplements thereto, with the State, the Trustee
and the Custodian being named as an additional insured party for items
(i) and (ii) below, the following minimum liability insurance
coverage at no direct cost to the State. Said coverage to be provided by an
insurance company or companies satisfactory to the State. Each insurance policy
shall state that the insurance company shall agree to investigate and defend
the insured against all claims for damages, even if groundless.


 


(i)                 Commercial General Liability insurance
providing for a total limit of Five Million ($5,000,000) providing coverage
for, but not limited to, Bodily Injury and Property Damage,
Premises/Operations, Products/Completed Operations, Independent Contractors,
Contractual Liability, Broad Form Property damage, X-C-U Coverages (if
applicable). Should an aggregate limit apply, the aggregate should be no less
than Ten Million Dollars ($10,000,000) ABPC agrees this coverage shall be
provided on a primary basis.


 


(ii)              The operation of all motor vehicles, including
those hired or borrowed, used in connection with this Lease shall be covered by
Automobile Liability Insurance in the following amounts: Insurance providing
for a total limit of Five Hundred


 


41

















 


Thousand
Dollars ($500,000) for all damages arising out of bodily injuries to or death
of all persons in any one accident or occurrence, and for all damages arising
out of injury to our destruction of property in any one accident or occurrence.
In cases where an insurance policy shows an aggregate limit as part of the
automobile liability coverage, the aggregate limit must be at least One Million
Dollars ($1,000,000).


 


(c) With respect to all operations ABPC performs
and all those performed for ABPC, ABPC shall carry Worker’s Compensation and Employer’s
Liability Insurance in accordance with the requirements of the laws of the
State of Connecticut.


 


(d) ABPC
shall procure and maintain business interruption insurance to cover loss, total
or partial, of the use of the Garage and the Surface Parking and other
improvements on the Project Site as the result of any fire, explosion,
vandalism, malicious mischief, other hazards normally covered by extended
coverage endorsement, earthquake, tornado, hurricane and sprinkler leakage, in
such amounts that: (1) in the case of a loss of the use of the Garage or
any part thereof, the proceeds of such insurance in the event of loss will be
sufficient to pay the Garage Guaranteed Payments for the period that the Garage
or any portion thereof is not useable, up to a maximum period of 12 months;
provided, however, that prior to Substantial Completion of the Garage, the
amount of such business interruption insurance required shall be $4,000,000,
which has been determined to be a sum sufficient to cover the amount of Garage
Gross Receipts, net of Garage Operating Expenses, to be received between the
date on which Phase I of the Garage becomes operational and the date of
Substantial Completion of the Garage; and (2) in the case of a loss of the
use of the Surface Parking or any part thereof, the proceeds of such insurance
in the event of loss will be sufficient to pay the Surface Parking Guaranteed
Payments for the period that the Surface Parking or any portion thereof is not
usable, up to a maximum of 12 months.


 


(e) ABPC
shall procure and maintain Garage Keepers Legal Liability Insurance providing
for a total limit of $150,000 per occurrence.


 


(f) ABPC
agrees to furnish to the State, only on the form or forms supplied by the
State, a Certificate of Insurance (CON-32), fully executed by an insurance
company or companies authorized to do business in the State of Connecticut for
the insurance policy or policies required hereinabove, which policy or policies
shall be in accordance with the terms of said Certificate of Insurance. The
Certificate of Insurance shall specify amounts deductible, if any, for each
type of coverage in the policy or policies, and shall be issued by carriers
with a Best’s Insurance Reports policy holder’s rating of A+. ABPC
agrees to be fully and solely responsible for any costs or expenses as a result
of a coverage deductible, coinsurance penalty or self-insured retention. If at
any time during the term of this Lease, there shall be a failure to provide
said Certificates of Insurance and duly maintain such coverage in full force
and effect, ABPC shall in any event immediately take all action within its
power to obtain such certificates and substitute coverage; provided, however,
that: (1) if such failure to shall be due to the fault or negligence of
ABPC, then such failure shall be an event of default, but the cure period shall
be reduced to one business day, and (2) if such failure shall not be due
to the fault or negligence of ABPC, then such failure shall be an event of
default, but the cure period shall be 30 days. In


 


42

















 


any
event, until such certificates and substitute insurance coverage shall be
obtained, ABPC shall be financially liable for the consequences of any failure
to have such insurance in place. Such ABPC financial liability shall not be
reimbursed under the terms of this Lease.


 


(g) All
polices of insurance required under this Section shall not be subject to
cancellation except after notice is given to the State, the Trustee and the
Custodian to the attention of the Party for Notice specified on the CON-32
Form, and the Trustee, at least thirty (30) days prior to the date of
cancellation.


 


(h) All
insurance coverage required of ABPC shall be subject to adjustment from time to
time to comply with any changes in minimum requirements determined reasonably
necessary by the State for its protection and consistent with parking facility
industry standards.


 


(i) The
failure of the State, at any time or from time to time, to enforce the
foregoing provisions of this Section 11 concerning insurance coverage
shall not constitute a waiver of those provisions nor in any respect reduce the
obligation of ABPC to defend and hold and save the State harmless with respect
to any items of injury or damage covered by this Section 11.


 


(j) The
Net Proceeds of the insurance carried pursuant to this Section 11 shall be
applied as follows:


 


(i) the Net Proceeds of the insurance required by
Section 11(a) shall be applied as provided in Section 13 hereof;


 


(ii) the Net Proceeds of insurance required by
Section 11(b) shall be applied toward extinguishing or satisfying or
remedying the liability, loss or damage with respect to which such proceeds may
be paid; and


 


(iii) in the event of a loss under Section 11(d) hereof,
the Net Proceeds of insurance required by Section 11(d) shall be paid
to the Trustee which shall use such proceeds to make Guaranteed Payments with
respect to the Garage and/or the Surface Parking, as applicable, during the
period of such loss.


 


SECTION 12. Maintenance and Repairs and Capital
Improvements.


 


(a) Garage. Throughout the Lease Term, ABPC shall be responsible for all
maintenance and repairs to the Garage, including, without limitation, all
equipment therein or thereon required to satisfy its obligations hereunder and
all necessary structural repairs and replacements to the Garage and to walls,
roof and foundations of the Garage, excepting those necessitated by the gross
negligence or intentional misconduct of the State or its agents,
representatives or employees, for which repairs the State shall be responsible.
ABPC’s responsibility for maintenance and repairs shall include, without
limitation, the responsibility for maintaining the Garage in good order,
condition and repair, including, without limitation, repair of all revenue
control equipment, wiring, electrical fixtures and plumbing fixtures or pipes.
ABPC shall also keep in good order and repair (and make necessary replacement
of)


 


43

















 


floors
or ceilings of the Garage, any heating and ventilating system in the Garage and
pedestrian bridges to the Departure roadway, and all wiring and electrical
systems, plumbing pipes and sewer pipes (storm and sanitary) within the Leased
Premises. ABPC shall replace all light bulbs which break or burn out (including
the replacement of all ballast), maintain and replace parking equipment used by
ABPC in its operations, provide waterproofing and surface treatments for the
concrete floors and other surfaces, maintain striping after initial striping
(if applicable) and perform all custodial services to keep the floor and ramp
surfaces and stairways and sidewalks in front of the entrances to the Garage in
safe working order. ABPC shall also be responsible for all leased data lines
and phone modems, elevator maintenance and repair, including without
limitation, the replacement of the elevator cabs, cables and motors. ABPC shall
have an elevator maintenance contract with a licensed firm, which shall provide
qualified and licensed technicians on-site to repair elevators, which are out
of service, within one hour of a call for service. Elevator parts, listed in
ABPC’s elevator maintenance contract, shall be available on site within 48
hours. In addition, ABPC, at its expense, shall make all necessary repairs to
damage, which is caused by ABPC, or its agents, representatives, employees or
invitees. Notwithstanding any provision of this Lease which may be construed to
the contrary, ABPC shall not be responsible for the cost and expense of repairs
to damage which are (i) caused by the gross negligence or intentional
misconduct of the State or its agents, representatives or employees, or
(ii) paid for directly by insurance proceeds, but this shall not delay the
execution by ABPC of its maintenance and repair obligations hereunder. ABPC
will install a generator as a backup emergency power system. ABPC shall be
responsible for removing or causing to be removed, all trash, refuse and waste
from the Garage consistent with Section 12(b)(3)(h) below.


 


(b) Surface
Parking.


 


(1) ABPC shall be obligated to repair and replace all Surface
Parking pavement, which requires repair or replacement, as the case may be.


 


(2) ABPC shall have the responsibility to maintain in good order
and repair and in a safe and presentable condition, pavement markings, revenue
control equipment, gates, attendant booths and signs at the Surface Parking and
electric parking lot status signs at each long term lot thereat. ABPC shall
also be responsible, at its expense, for all maintenance, both structural and
routine, for the office and administration buildings at the Surface Parking and
all housekeeping maintenance of the Surface Parking, which shall include bus
shelters.


 


(3) ABPC shall be responsible for and shall pay all operating,
maintenance and administrative costs for the operation of the Surface Parking
including, but not limited to, the following:


 


(a)                   All utility costs, as well as, maintenance and
repair, within the Leased Premises;


 


(b)              Curb, guide rail and jersey barrier repair and
maintenance where replacement and repair is due to incidents and accidents
caused by ABPC or others to include but not be limited to its agents, officers,
employees, contractors, sub-contractors, clients, and invitees;


 


44

















 


(c)               Joint and crack sealing of all Surface Parking
lots will be accomplished by ABPC, as needed to prevent water penetration into
the subbase;


 


(d)              Minor pavement maintenance which shall consist
solely of patching, repair of pot holes, crack sealing and line stripping for
the Surface Parking lots;


 


(e)               The clearing of all storm drain areas at the
Surface Parking of debris to ensure that no flooding is caused by any
obstructed storm drain;


 


(f)                 Use of a sweeper to thoroughly clean the
Surface Parking at least once a month, or more often if determined to be
necessary by the Airport Administrator;


 


(g)              Snow plowing and removal activities for the
Surface Parking commencing prior to the accumulation of one inch of
precipitation. In the case of freezing rain or ice, ABPC must at all times
provide for a safe condition for vehicles, customers, passengers and employees
by using proper materials (sand, salt, etc.) and techniques to counter such
conditions which must be approved in writing in advance by the Airport
Administrator. Any snow removed by ABPC or its authorized sub-contractors from
the Surface Parking will only be deposited in an area on-airport as designated
by the Airport Administrator;


 


(h)              ABPC shall arrange for removal of its refuse
and waste generated at the Surface Parking and ABPC’s administration building
from the Airport. Such arrangement and any subsequent change(s) shall be
approved in writing, in advance, by the State to conform with but not be
limited to the following conditions:


 


(i)                      Any arrangements for removal of waste,
approved in accordance with the above requirement, shall be subject to
modification or revocation by the State if deemed necessary by the State;


 


(ii)                   No uncovered trash containers shall be kept at
the Surface Parking;


 


(iii)                No vehicles used for hauling trash, dirt or
any other material shall be operated on the Airport unless such vehicle is
constructed so as to prevent the contents thereof from dropping, sifting,
leaking or otherwise escaping therefrom;


 


(iv)               Surface Parking areas to be used for trash or
garbage containers shall be designated by the Airport Administrator and no
other locations shall be used for the purpose without approval. Such locations
shall be at all times kept clean, neat, presentable and sanitary, in the
opinion of the State; and


 


45

















 


(v)                  The Surface Parking area approved for storage
of waste materials for pickup shall be kept clean, neat and presentable in the
opinion of the Airport Administrator; and


 


(4) The
replacement and disposal of light standards, bases, bulbs, ballast and fixtures
as necessary for the Surface Parking’s lighting system. Such light standard
replacement and disposal costs shall be paid from the Surface Parking Major
Maintenance and Capital Improvement Fund.


 


SECTION 13. Damage or Destruction. If any portion of the Leased Premises is
damaged or destroyed by fire or other casualty, ABPC shall, to the extent there
are sufficient Net Proceeds for such purposes:


 


(i)                  promptly repair, rebuild or restore the
property damaged or destroyed to substantially the same condition as existed
prior to the event causing such damage or destruction with such changes,
alterations and modifications (including the substitution and addition of other
property exclusive of land) as may be desired by ABPC and approved by the State
and as shall not impair the operation unity or revenue producing capability of
the Leased Premises or the character of the Leased Premises as public facilities,
or adversely affect the Airport in any way; and


 


(ii)               apply for such purpose so much as may be
necessary of any Net Proceeds of insurance resulting from claims for such
losses with respect to the Leased Premises, provided that, Net Proceeds
received from damage or destruction of the Garage may be applied only for costs
related to the Garage and Net Proceeds received from damage or destruction of
the Surface Parking may be applied only for costs related to the Surface
Parking.


 


SECTION 14. Eminent Domain.


 


(a) Total
Taking. If all of the Leased Premises or ABPC’s leasehold interest under this
Lease, including, without limitation its opportunity to receive Additional
Payments under Section 6(c), are taken by any condemning authority,
including the State, under the power of eminent domain, or if the same is
purchased or otherwise acquired in lieu thereof, this Lease shall terminate as
of the date when title to the Leased Premises or ABPC’s leasehold interest
under this Lease, as the case may be, is acquired by the condemning authority,
subject to the provisions hereinafter set forth.


 


(b) Partial
or Temporary Taking. If only a portion or a temporary taking for more than six
(6) months of the Leased Premises or ABPC’s leasehold interest under this
Lease is


 


46

















 


taken
by any condemning authority, including the State, under the power of eminent
domain, or if the same is purchased or acquired in lieu thereof, and if such
partial or temporary taking or purchase results, in the reasonable opinion of
the ABPC, in a substantial interference with the business which ABPC is
conducting on the Leased Premises pursuant to this Lease and, in addition, in the reasonable opinion of ABPC has a materially
adverse impact upon the financial position of ABPC, ABPC shall have the right
to terminate this Lease by giving written notice to the State. In such event
this Lease shall terminate as of the date when title to the portion or
temporary taking of the Leased Premises or the portion or temporary taking of
ABPC’s leasehold interest under this Lease, as the case may be, is acquired by
the condemning authority.


 


(c) If
the Lease is terminated in accordance with subsection (a) or
(b) above, the parties hereto shall be released and discharged of and from
all further obligations hereunder with respect thereto, without prejudice,
however, to any claims which may have accrued prior thereto in favor of either
party against the other, and APCOA shall be released and discharged of and from
all further obligations under the Guaranty, without prejudice, however, to any
claims which may have accrued prior thereto under the Guaranty, and ABPC and
APCOA shall be released and discharged from any and all obligations,
responsibilities or liabilities with respect to the Bonds.


 


(d) If
a condemnation or purchase occurs under either subsection (a) or
subsection (b) above and this Lease is terminated, and if such taking or acquisition is by the State, ABPC
shall receive as ABPC’s Gross Award the just compensation to which ABPC is
entitled by law for such taking of its leasehold interest.


 


(e) If
a condemnation or purchase occurs under either subsection (a) or
subsection (b) above and this Lease is terminated, and if such taking or
acquisition is by a condemning authority other than the State, ABPC shall be
entitled to all of its rights and remedies at law as to such condemning
authority. In such event, the State and ABPC hereby agree that ABPC’s Gross
Award shall first be deposited with the Trustee, to be applied to the payment
or redemption of the then outstanding Bonds with any ABPC Gross Award proceeds
remaining paid to ABPC, and ABPC and APCOA shall have no further liability in
the event of a shortfall in such ABPC Gross Award to satisfy the then outstanding
Bonds.


 


(f) If
a partial or temporary condemnation or purchase occurs under subsection
(b) above and this Lease is not terminated pursuant to said subsection (b), this Lease shall
continue in full force and effect, and the State shall promptly repair the
remaining Leased Premises and the improvements thereon, as is reasonably
necessary and practical, in the sole discretion of the State. ABPC shall
deposit its ABPC Gross Award with the Trustee and said proceeds shall be
applied first to the repair of the Leased Premises, and the remaining proceeds,
if any, shall be used to pay or redeem any then outstanding Bonds. Any
remaining ABPC Gross Award shall be paid to the State.


 


SECTION 15. ABPC’s Option to Terminate. (a) In the event that the Airport ceases to function
as an airport for general commercial traffic for a period of 120 consecutive
days or more ABPC may terminate this Lease. If the State is responsible for
such occurrence


 


47














 


and
if ABPC elects to terminate this Lease, such action by the State in connection
with the cessation of the Airport’s function as an airport for general
commercial traffic for such period shall be deemed a taking by the State of
ABPC’s entire leasehold interest under this Lease pursuant to Section 14
hereof, and the provisions of Section 14 applicable thereto, shall apply.
In order to terminate this Lease pursuant to this Section 15(a), ABPC must
notify the State in writing of its intent to terminate this Lease on a
particular date, which date shall be not less than 90 nor more than 360 days
from the date of such notice at any time after such 120 day period, but in no
event after any date on which the Airport is reopened for general commercial
traffic.


 


(b) In
the event the State builds or allows to be built additional garage parking
capacity on the Airport, which is not part of the Leased Premises, and such
additional parking capacity shall have a material adverse impact on the
payments set forth in Section 6(c)(i)-(iii) hereof, as determined by a
financial feasibility study prepared by, or on behalf of, the State, ABPC shall
have the option to terminate this Lease. Or in the alternative, if the State
builds or allows to be built additional garage parking capacity, and there is
an actual material adverse impact on the payments set forth in Section 6(c)(i)-(iii)
hereof, then ABPC shall have the option to terminate this Lease. Exercising
either such termination option by ABPC shall result in (1) a payment by the
State to ABPC equivalent to the payment due for a taking by the State of ABPC’s
entire leasehold interest under this Lease pursuant to Section 14, hereof, (2) ABPC
and APCOA shall have no further obligations, responsibilities and liabilities
for any remaining outstanding Bonds and (3) the termination of the Lease and
the Guaranty in the manner set forth with respect to a termination of the
entire leasehold interest of ABPC pursuant to Section 14 hereof. In order to
terminate this Lease pursuant to this Section 15 (b), ABPC must notify the
State in writing of its intent to terminate this lease on a particular date,
which date shall not be less than 180 nor more than 360 days from the date of
such notice.


 


SECTION 16. Assignment of Lease by the State. It is expressly understood and agreed by the
parties hereto that the State may pledge and assign this Lease and its rights
hereunder to the Trustee to secure the payment of the principal of and interest
on the Bonds in the manner provided in the Trust Indenture. ABPC acknowledges
and agrees that the Trustee, as provided in this Lease and the Trust Indenture,
shall have the right, on behalf of the State, to enforce the obligations of
ABPC hereunder and to exercise any of the remedies set forth in this Lease in the
event of a default by ABPC under this Lease.


 


SECTION 17. Right of the State to Perform ABPC’s
Obligations. If
ABPC shall fail to keep or perform, or shall fail to cause to be kept or
performed any of its obligations as provided in the Lease in respect of:
(a) maintenance of insurance; (b) payment of Charges, including,
without limitation, taxes, assessments, public charges or other impositions;
(c) repairs and maintenance; (d) replacement, substitution or
installation of equipment, furnishings, machinery or apparatus;
(e) compliance with legal or insurance requirements; (f) keeping the
Garage and the Surface Parking free of liens; or (g) the making of any
other payment required by or the performance of any other obligation imposed
upon it hereunder, then the State or the Trustee, upon the continuance of such
failure for 30 days (or such additional time as is reasonably required to
correct any such failure) after written notice of such failure by the State


 


48

















 


or
the Trustee to ABPC, and without waiving or releasing ABPC from any obligation,
as an additional but not exclusive remedy, may (but shall not be obligated to
do so) take out the required insurance and pay the premiums thereon, make any
of the aforesaid payments or perform any other aforesaid obligations; and all
sums so paid or expended by the State or the Trustee shall be deemed additional
rental hereunder, which rentals, together with interest thereon to be
calculated at the rate of prime lending rate per annum as published in the Wall
Street Journal from the date thereof plus a premium of ten percent (10%) on
principal ABPC agrees to pay.


 


SECTION 18. Employment of Personnel. ABPC shall investigate, hire, pay, supervise
and discharge the personnel necessary to be employed in order to properly
maintain and operate the Garage and the Surface Parking. ABPC shall not
discriminate against any employee or applicant for employment on the basis of
race, color, religion, national origin, ancestry, age, sex, sexual preference,
disease or handicap, and all employment advertising shall indicate that ABPC is
an equal opportunity employer.


 


SECTION 19. Environmental Provisions.


 


A.
If at any time after the Lease Execution Date, the State or ABPC shall identify
on the Leased Premises or in the soil or ground water below the Leased Premises
the presence of any Hazardous Materials or Hazardous Materials Contamination or
any other hazardous waste or hazardous substance, pollutant, contaminant, or
toxic substance or material (collectively, the “Regulated Materials”) subject
to the provisions of 42 U.S.C. §6901 et seq. or 42 U.S.C. §9601 et
seq. and/or any other federal or State rule, regulation, order, statute,
code, standard, guideline, policy or requirement regarding the quality or
condition of air, water, land, wetlands or regulating solid or hazardous waste
or the environment (collectively, the “Environmental Laws”), the presence of
which is not due to any act or omission of ABPC, its agents, employees,
assignees, occupants, licensees, invitees or tenants (the “Protected Parties”),
and ABPC shall notify the State, the State shall, promptly after receipt of
such notice, cause actions to be taken to investigate, monitor, cleanup, remove
and remediate such Regulated Materials in a manner which fully complies with
all applicable Environmental Laws and all requirements of any applicable
federal, State governmental agency or authority (the “Remediation”). During
Garage construction, the State shall perform at its sole expense, any
reasonable site environmental mitigation for existing conditions, including
associated reasonable construction delay costs, that is determined to be
required after Garage construction starts and which could not reasonably have
been expected to be identified during ABPC’s environmental site investigation.


 


If
the State deems that the environmental mitigation requirements, determined
after the start of Garage construction but prior to Substantial Completion of
the Garage, are too costly, Garage construction and this Lease Agreement shall
be terminated, and the State shall pay all reasonable ABPC costs to the date of
termination of the project, including, without limitation, the reasonable costs
payable by the Construction Manager under the Construction Management
Agreement, and ABPC and APCOA shall have no obligation


 


49

















 


to
pay the cost of defeasing the Bonds that exceeds the balance of available Bond
proceeds, which shall be applied thereto.


 


B. The State shall be responsible for all costs incurred in connection
with any Remediation required pursuant to Section 19A hereof. The State
does not waive any rights either express or implied it may be entitled to with
respect to any third parties. If such Remediation by the State shall occur
prior to Substantial Completion of the Garage, such costs of Remediation to be
borne by the State shall include any additional Garage construction costs
attributable solely to the need for such Remediation and construction delays in
connection therewith, and the Target Date shall automatically be extended for a
period equal to the number of days required to accomplish such Remediation
after notice thereof to the State.


 


ABPC
may, under the terms and provisions as may be agreed to by the parties under a
subsequent letter agreement with the State, agree to perform the Remediation
obligations of the State under Section 19A hereof.


 


C. The State further agrees that ABPC shall only be liable to it
for contamination by Regulated Materials which the Protected Parties actually
discharge, spill, release or deposit to the Leased Premises after the Lease
Execution Date, and for which the State is not responsible.


 


D. The State hereby releases any claim, cause of action, or other
legal suit, whether in law or in equity, or under any administrative proceeding
or action, or under any other power of the State to impose liability and/or
responsibility upon the Protected Parties with respect to liability or
responsibility for environmental matters or conditions on or stemming from the
Leased Premises which relate to matters or conditions that occurred or were
instituted prior to the Lease Execution Date, and for which the Protected
Parties were not responsible.


 


E. The State agrees to cooperate to the practical extent with the
Protected Parties in any action deemed necessary against a third-party to
preserve and protect the environmental integrity of the Leased Premises.


 


F. The use of the Leased Premises by ABPC shall be restricted to
those purposes specified in this Lease unless the prior written consent of the
State to any change is obtained. The State recognizes and agrees that the uses
authorized in this Lease may include underground storage tanks and related
appurtenances and dispensers (herein collectively “USTs”) and aboveground
storage tanks and related appurtenances and dispensers (herein collectively
“ASTs”).


 


G. ABPC and the State each agree to comply with all Environmental
Laws and associated orders or permits applicable to their respective operations
on or in the vicinity of the Leased Premises (and ABPC also agrees to cause
such compliance by the Protected Parties, to the extent they operate on the
Leased Premises), including but not limited to required National Pollutant
Discharge Elimination System permits and all


 


50

















 


applicable
laws and regulations relating to the use, storage, generation, treatment,
transportation, and/or disposal of Regulated Materials. ABPC shall not
knowingly use, store, generate, treat, transport, or dispose of any Regulated
Materials on the Leased Premises without first obtaining all required permits
and approvals from all authorities having jurisdiction over ABPC’s operations
on the Leased Premises. ABPC will develop a Storm-water Pollution Prevention
Plan, which must be approved by the Airport Administrator and the Connecticut
Department of Environmental Protection.


 


H. ABPC shall permit the State and its agents, employees or
contractors access to the Leased Premises for the purpose of conducting
reasonable environmental inspections, tests and sampling, at all reasonable
times including during regular business hours and during other hours either by
agreement of the parties or in the event of an environmental emergency.


 


I. Upon receipt of a request from the State, ABPC, shall
immediately provide for inspection by the State or its authorized
representative of such documents in ABPC’s possession and/or control as are
described in the State’s written request and as relate to compliance or non-compliance
of the Leased Premises with Environmental Laws dealing with Regulated
Materials. ABPC shall provide or cause such documents to be provided to the
State at a location and in a manner required by the State.


 


J. If either party determines at any time through any means that
any threat of potential harm to the environment, including but not limited to
any release, discharge, spill or deposit of any Regulated Materials has
occurred or is occurring which in any way affects or threatens to affect the
Leased Premises, the Airport, or the persons structures, equipment, or other
property thereon, that party shall notify immediately by verbal report in
person or by telephone, to be confirmed in writing within 72 hours,
(1) the other party’s designated environmental coordinator, (2) the
State’s Fire Marshal, (3) all emergency response centers and environmental
or regulatory agencies, as required by law or regulation.


 


K. ABPC and the State each agree to cooperate fully with the other
in promptly responding to, reporting, and remedying any threat of potential
harm to the environment, including without limitation any release or threatened
release of any Regulated Materials into the drainage systems, soils,
groundwater, waters, or atmosphere, in accordance with applicable law or as
authorized or approved by any federal or State agency having authority over
environmental matters.


 


L. ABPC agrees to indemnify and forever hold the State, including
its officers and employees, harmless from any liability, fine, penalty, cost,
attorney fees, or expenses, whether foreseen or unforeseen, suffered or to be
suffered by reason of any failure of ABPC after the Lease Execution Date to
perform its obligations under this Section 19, or by virtue of any non-compliance
with any Environmental Laws applicable to and resulting from the operations,
acts or use by ABPC after the Lease Execution Date, of the Leased Premises or
any part thereof. ABPC, however, reserves the right to demonstrate either
(i) that the alleged acts or failure to act did not occur, or
(ii) that the


 


51

















 


alleged
act or failure to act was not a failure of compliance or performance, or a
violation, of applicable Environmental Laws or of obligations under this
Section 19, or (iii) that the complained of contamination was in
existence prior to the Lease Execution Date.


 


In
addition to its indemnification obligation pursuant to the preceding paragraph,
ABPC shall promptly report to the Airport Operations Manager and cause actions
to be taken to investigate, monitor, cleanup, remove and remediate any
Regulated Materials for which it has or would have an indemnification
obligation in the circumstances described above in a manner which fully
complies with all applicable Environmental Laws and all requirements of any
applicable federal, State or local governmental agency or authority.


 


M.
The rights and obligations set forth under this Section 19 shall survive
the expiration or earlier termination of this Lease.


 


SECTION 20. Defaults, Remedies and Waivers by ABPC.


 


If
during the Lease Term:


 


(i)                 ABPC shall fail to pay or deposit when due
amounts which it is required to deposit or pay to the Trustee or the Custodian
pursuant to Section 6 hereof, which failure shall continue for two
Business Days; provided, however, that ABPC shall not be responsible for the
failure by the credit card company to make direct transfers of net debit
card/credit card receipts unless ABPC shall have violated its obligation to
make every effort of which it is capable to insure that such transfers are
accurate and made every business day or as otherwise required as set forth in
Section 7(b);


 


(ii)              APCOA shall fail to pay when due and owing any
Guarantor Payments payable under the Guaranty, which failure shall continue
after the opening of business on the date, as applicable, that the Trustee is
required to make the deposits pursuant to Section 5.03 of the Trust
Indenture or the date that the Custodian is required to make the deposits pursuant
to Section      of the Custody Agreement;


 


(iii)           ABPC shall fail to observe or perform in any material respect any other
of ABPC’s material covenants, agreements, representations, certifications or
obligations hereunder and such breach shall not be cured within 30 days (or
such additional time as is reasonably required to correct any such failure,
provided ABPC is diligently pursuing such cure to completion) after written
notice by the State or the Trustee to ABPC specifying the nature of such breach;


 


(iv)          in addition to the effect of the Construction Management Agreement, the
License Agreement and the Assignment and any granting of a leasehold mortgage
to a Leasehold Mortgagee as provided hereunder, ABPC’s interest in this Lease
or any part thereof shall be mortgaged, hypothecated, affected,


 


52

















 


pledged,
assigned or transferred either voluntarily or by operation of law contrary to
the provisions of this Lease;


 


(v)             ABPC shall file any voluntary petition or
institute any voluntary proceeding under any act or acts, state or federal,
dealing with or relating to the subject or subjects of bankruptcy or
insolvency, or under any amendment of such act or acts, either as a bankrupt,
or as an insolvent, or as a debtor, or in any similar capacity, wherein or
whereby ABPC asks or seeks or prays to be adjudicated a bankrupt, or is to be
discharged from all or any of ABPC’s debts or obligations, or offers to ABPC’s
creditors to effect a composition of extension of time to pay ABPCs debts or
asks, seeks or prays for a reorganization or to effect a plan of
reorganization, or for a readjustment of ABPC’s debts, or for any other similar
relief, or any such involuntary petition or any such involuntary proceedings of
the same or similar kind or character shall be filed or be instituted or taken
against ABPC (which involuntary petition or proceeding shall not be dismissed
within 90 days of its filing or institution), or a receiver of the business or
of the property or assets of ABPC shall be appointed by any court, except a
receiver appointed at the instance or request of the State or the Trustee, or
ABPC shall make a general or any assignment for the benefit of ABPCs creditors;
or


 


(vi)          ABPC shall abandon or vacate the Garage without the written consent of
the State;


 


(vii)       the occurrence of an Event of Default under Section 7.01(a) or
(b) of the Trust Indenture;


 


(viii)    failure to cause Substantial Completion of the Garage on or prior to the
Target Date as the same may be extended.


 


Then
in each such event set forth in clauses (i) — (viii) above, ABPC
shall be in default hereunder.


 


If
ABPC shall be in default hereunder for any reason, then the State or the
Trustee may take any one or more of the following actions:


 


(a)            reenter and take possession of the Project
Site, the Garage and/or the Surface Parking without terminating this Lease, and
sublease the Project Site, the Garage and/or the Surface Parking for the
account of ABPC, holding ABPC liable for the difference in the rent and other
amounts payable by such sublessee in such subleasing and the Guaranteed
Payments and other amounts payable by ABPC hereunder, and associated fees and
attorney’s costs;


 


(b)           terminate the Lease Term and exclude ABPC from possession of the Project
Site, the Garage and the Surface Parking and lease the Project


 


53

















 


Site,
the Garage and the Surface Parking to another for the account of ABPC, holding
ABPC liable for all Guaranteed Payments due to the date of such leasing and for
the excess, if any, of the Guaranteed Payments payable under this Lease had the
Lease Term not been terminated over the rents and other amounts which are
payable by such new lessee under such new lease, and associated fees and attorney’s
costs; and


 


(c)               take whatever action at law or in equity,
including, without limitation, the right to seek the remedy of specific
performance, which may appear necessary or desirable to collect the Guaranteed
Payments due under this Lease and the Guaranty, or to become due hereunder and
thereunder, or to enforce performance and observance of any obligation,
agreement or covenant of ABPC under this Lease.


 


SECTION 21. Representations of ABPC. ABPC hereby represents and warrants to the
State, which representations and warranties and other representations and
warranties of ABPC contained in this Lease shall survive the execution and
delivery of this Lease, as follows:


 


(a)  Corporate Organization and Power. ABPC (i) is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State, and (ii) has all requisite power and authority and all necessary
licenses and permits to own and operate its properties and to carry on its
business as now being conducted and as presently proposed to be conducted.


 


(b)  Pending Litigation. To the best of ABPC’s information and belief, there are no actions,
suits, proceedings, inquiries or investigations pending, or to the best
knowledge of ABPC threatened, against or affecting ABPC in any court or before
any governmental authority or arbitration board or tribunal which involve the
possibility of materially and adversely affecting the transactions contemplated
by this Lease or the Trust Indenture or which, in any way, would adversely affect
the validity or enforceability of the Bonds, the Trust Indenture or this Lease
or the ability of ABPC to perform its obligations under this Lease.


 


(c)  Agreements Are Valid and Authorized. The execution and delivery by ABPC of this
Lease and the compliance by ABPC with all of the provisions hereof (i) are
within the authority and powers of ABPC, (ii) will not conflict with or
result in any breach or any of the provisions of, or constitute a default
under, any agreement, articles of organization, operating agreement or other
instrument to which ABPC is a party or by which it may be bound, or any
license, judgment, decree, law, statute, order, rule or regulation of any
court or governmental agency or body having jurisdiction over ABPC or any of its
activities or properties, and (iii) have been duly authorized by all
necessary action on the part of ABPC.


 


(d)  Governmental Consents. Neither the nature of ABPC, nor any of its
activities or properties, nor any relationship between ABPC and any other
person, is


 


54

















 


such
as to require the consent, approval or authorization of, or the filing,
registration or qualification with, any governmental authority on the part of
ABPC in connection with the execution, delivery and performance of this Lease,
other than those already obtained or those that will be obtained in connection
with the construction of the Garage.


 


(e)  No Defaults. No event has occurred and no condition exists with respect to ABPC that
would constitute default under this Lease or which, with the lapse of time or
with the giving of notice or both, would become an event of default under this
Lease.


 


(f)  Compliance with Laws. ABPC has received no written notice of any
actual or asserted violations on or about the Project Site of any zoning,
building, health, safety, pollution or federal or State environmental law,
ordinance, rule or regulation governing the Project Site or the
construction of the Garage thereon.


 


SECTION 22. Representations of the State.
The State hereby represents and warrants to ABPC, which representations and
warranties and other representations and warranties of the State contained in
this Lease shall survive the execution and delivery of this Lease, as follows:


 


(a)  Pending Litigation. To the best of the State’s information and belief, there are no
actions, suits, proceedings, inquiries or investigations pending, or to the
knowledge of the State threatened, against or affecting the State in any court
or before any governmental authority or arbitration board or tribunal, which
involve the possibility of materially and adversely affecting the transactions
contemplated by this Lease.


 


(b)  No Defaults. No event has occurred and no condition exists with respect to the State
which would constitute a default under this Lease or the Trust Indenture or
which, with the lapse of time or with the giving of notice or both, would
become an event of default under this Lease or the Trust Indenture.


 


(c)  Title. The State has full legal and equitable title to the Surface Parking and
the Project Site necessary to lease such property and the Garage to be
constructed on the Project Site to ABPC as set forth herein.


 


(d)  Compliance with Laws. To the best of the State’s information and
belief the State has received no written notice of any actual or asserted
violations on or about the Project Site or the Surface Parking of any building,
the health, safety, pollution or federal or State environmental law,
rule or regulation governing the Project Site or the Surface Parking.


 


SECTION 23. No Remedy Exclusive. No remedy herein conferred upon or reserved
to either party is intended to be exclusive of any other available remedy, but
each and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Lease or now or hereafter existing at law
or in equity or by statute. No delay or omission to exercise any right or power
accruing upon any default shall impair any such right


 


55

















 


or
power or shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be deemed
expedient.


 


SECTION 24. Breach by the State. The State shall in no event be in default in
the performance of any of its obligations hereunder unless and until the State
shall have failed to perform in any material respects such obligations and such
breach shall not be cured within 30 days (or such additional time as is
reasonably required to correct any such default) after written notice by ABPC
to the State specifying the nature of such breach. In the event of any such
breach of its obligations hereunder by the State, ABPC shall have all remedies
provided by law and in equity, provided, however, that ABPC shall not have the
right to terminate this Lease except as provided in this Lease. Notwithstanding
the preceding, the State reserves its sovereign immunity from suit or
liability.


 


SECTION 25. Indemnification. ABPC shall indemnify and hold the State, the
Trustee, the Custodian and each of their members, officers, agents and
employees, harmless from, and defend them against, any and all liabilities,
fines, suits, claims, demands, damages, liens, actions, judgments, costs,
counsel fees and expenses of any kind or nature whatsoever due to or arising
out of: (i) any breach, violation or non-performance of any covenant,
condition, representation, warranty or agreement made by ABPC under this Lease,
or (ii) any bodily injury, death or damage to property occasioned by
ABPC’s use and occupancy of the Garage, the Surface Parking or the Project
Site, occurring in or about the Garage, the Surface Parking or the Project
Site, or upon the public ways adjoining the same; provided, however, that the
indemnification in this Section 25 shall not cover any liabilities, fines,
suits, claims, demands, damages, liens, actions, judgments, costs, counsel fees
and expenses arising out of the gross negligence or willful misconduct of any
of the parties otherwise intended to be indemnified hereunder. If the State,
the Trustee, the Custodian and each of their members, officers, agents and
employees, or any of them be made a party to any action or proceeding arising
out of any of the events or happenings contemplated by the preceding sentence,
then they may be entitled to appear, defend or otherwise take part at their
election and by counsel of their own choosing and at their own expense. ABPC’s
liability under this section shall be reduced by the net proceeds actually
collected from any insurance carried for the State’s benefit on the risk in
question.


 


SECTION 26. Severability. If any one or more of the terms, provisions,
promises, covenants or conditions of this Lease shall to any extent be adjudged
invalid, unenforceable, void or voidable for any reason whatsoever by a court
of competent jurisdiction, each and all of the remaining terms, provisions,
promises, covenants and conditions of the Lease shall not be affected thereby
and shall be valid and enforceable to the fullest extent permitted by law.


 


SECTION 27. Waiver of Subrogation. Provided and so long as the following
provisions of this section do not result in the invalidation or cancellation of
the fire and extended coverage insurance policies on the buildings constituting
a part of the Garage or the contents thereof, or constitute a defense to any
claim for loss under said policies, the State and ABPC each agree to and by
these presents do hereby waive all rights of recovery and causes of action
against each other, respectively, and against the officers, employees, servants
and agents of each other, and against all parties claiming through or under
this Lease, for any damage to or


 


56

















 


destruction
of the Garage or the Surface Parking or the contents thereof caused by any of
the perils embraced within a standard fire and extended coverage insurance
policy, notwithstanding the fact that said damage shall be due to the
negligence of any one of the parties in whose favor this Lease operates.


 


SECTION 28. Vacation of Garage and Surface Parking. Except as may be otherwise permitted by this
Lease, ABPC shall deliver up and surrender to the State possession of the
Garage and the Surface Parking upon the expiration of this Lease or its
termination in any way, in good condition and repair for a parking garage
facility of the respective ages and types of the Garage and the Surface
Parking, loss by fire or other casualty and ordinary wear and tear excepted.


 


SECTION 29. Holding Over. Should ABPC withhold possession of the Garage
and the Surface Parking after the termination of this Lease, whether by
expiration of the term hereof or otherwise, ABPC shall be considered a tenant
at will and by sufferance of the State, and no such occupancy shall operate as
a renewal of this Lease or the term hereof. During any such period when ABPC
withholds possession, ABPC shall pay to the State monthly Guaranteed Payments
in an amount equal to the average amount per month paid to the State by ABPC as
Guaranteed Payments hereunder during the prior 12-month period.


 


SECTION 30. Waiver. No waiver of any condition or legal right or
remedy shall be implied by the failure of either the State or ABPC to declare
forfeiture, or for any other reason, and no waiver of any condition or covenant
shall be valid unless it is in writing.


 


SECTION 31. Concurrent Remedies. All rights and remedies of ABPC, the State or
the Trustee under this Lease shall be cumulative and none thereof shall exclude
any other rights or remedies provided for herein or allowed or afforded by law.


 


SECTION 32. Mechanic’s or Other Liens. If, because of any act or omission of ABPC,
or anyone claiming through or under ABPC, any mechanic’s lien or other liens or
order for the payment of money shall be filed against the Garage or against the
buildings or other improvements situated in or on the Garage or against the
State (whether or not such lien or order is valid or enforceable as such), then
ABPC, at ABPC’s own cost and expense, shall cause the same to be canceled and
discharged of record within 60 days after the date of filing thereof, and ABPC
shall indemnify and save harmless the State from any and all costs, expenses,
claims, losses and damages, including reasonable attorneys’ fees, resulting
therefrom or by reason thereof


 


SECTION 33. Assignment and Subletting. Except as contemplated by the recitals to
this Lease or as permitted herein, ABPC may not sell, assign, transfer,
mortgage, pledge or encumber any portion of the Garage or the Surface Parking
or any of its rights hereunder, and ABPC may not sublease all or any portion of
the Garage or the Surface Parking, in each instance, without the prior written
consent of the State. The State hereby specifically acknowledges and agrees
that ABPC will transfer and assign all or any portion of ABPC’s rights and
non-construction obligations under this Lease to APCOA pursuant to the License
Agreement and to BAP pursuant to the Assignment, and may engage the
Construction Manager


 


57














 


to
perform the Garage construction obligations of ABPC hereunder pursuant to the
Construction Management Agreement.


 


SECTION 34. Broker’s Commission. Each party hereto represents to the other
that it has not dealt with or negotiated with, employed or become indebted to
any broker or finder in connection with this transaction.


 


SECTION 35. Construction of “the State” and “ABPC”. Whenever the words “the State” or “ABPC” are
used in this Lease, they shall be construed to include not only the original
parties, but their respective legal representatives, successors, licensees and
assignees, and all the terms, covenants, benefits and/or conditions herein set
forth, performed or derived and/or to be performed and derived by either or any
of the parties hereto shall inure to and be binding upon their respective
heirs, legal representatives, successors, licensees and/or assignees. Whenever
any pronoun of the masculine, feminine or neuter gender is used herein, the
same may include and refer to any other gender, and the singular of any pronoun
or verb may include and refer to the plural, and the plural may refer to the
singular.


 


SECTION 36. Notice of Lease to be Recorded. ABPC shall record a “Notice of Lease” for
this Lease, including any supplements hereto and all renewals thereof, if any,
in the land records of the Town of Windsor Locks, at no expense to the State,
and the recording shall be done immediately upon notification that the fully
executed and approved document is ready to be recorded.


 


SECTION 37. Notices. Any notice or consent required or permitted
to be given by or on behalf of either party shall be in writing and shall be
mailed by registered or certified mail, addressed to the other party at the
following addresses:


 


As
to the State:


 


Department
of Transportation


2800
Berlin Turnpike


P.O. Box
317546


Newington,
CT 06131-7546


Attn:
Commissioner of Transportation


 


As
to ABPC:


 


APCOA/Standard
Parking, Inc. 


900
North Michigan Avenue


Suite 1600


Chicago,
Illinois 60611


Attn:
General Counsel


 


58

















 


With
a copy to:


 


TBI-BDL
Garage, LLC


c/o
Tomasso Brothers, Inc.


One
Liberty Square


P.
O. Box 3040


New
Britain, CT 06050 


Attn:
Michael W. Tomasso


 


or
to such other address or addresses as may be specified from time to time in
writing by one party to the other.


 


SECTION 38. Quiet Enjoyment. The State represents and warrants to ABPC
that: (1) the State has good fee simple title to the Leased Premises with
the power and authority to execute and deliver this Lease and to carry out and
perform all covenants to be performed by it under this Lease, and (2) ABPC
shall have the quiet and peaceful enjoyment of the Leased Premises so long as
ABPC performs its duties hereunder and that the rights herein granted to ABPC
hereunder are in conformity with any and all federal and State laws,
regulations and policies, and any and all other binding obligations of the
State with respect to the Airport.


 


The
State further represents and warrants to ABPC that to the best of its
information and belief:


 


(1)   except for the applicable
terms and conditions contained in this Lease, sole and undisturbed physical
possession of the Leased Premises will be delivered free and clear of all
encumbrances, liens, defects in title, violations of law, leases, tenancies,
easements, restrictions and agreements, except for such matters as of record
appear or as otherwise set forth in the Lease or any exhibits or schedules
attached hereto;


 


(2)   ABPC, at all times other than
during temporary periods of construction or other emergency or remedial
activities on the Airport or the Leased Premises, shall have reasonably
unobstructed and adequate means of ingress and egress to the Leased Premises;
and


 


(3)   except as provided in this
Lease, no municipal zoning approvals or consents are required and there are no
known legal restrictions or impediments that prevent the construction and
operation of the Garage on the Project Site or the operation of the Surface
Parking.


 


If
the State fails to keep and perform any of the covenants, representations or
warranties contained in this section and to cure the same within 30 days of
written notice thereof by ABPC, ABPC shall have all remedies provided by law or
in equity.


 


SECTION 39. No Third Party Benefit. Except as provided in the Construction
Management Agreement, the License Agreement and the Assignment and as otherwise
provided in this Lease with respect to the Trustee, this Lease is intended for
the benefit of the State and ABPC and their respective successors and assigns,
and nothing contained in this Lease shall be construed as creating any rights
or benefits in or to any third party.


 


SECTION 40. Estoppel Certificates. Either party to this Lease shall from time to
time during the term of this Lease, immediately upon request of the other
party, execute and


 


59

















 


deliver
to the other party a statement certifying that this Lease is in full force and
effect, the date through which the Rent and other charges hereunder have been
paid, and any other factual matter reasonably requested by the other party.


 


SECTION 41. Governing Law. It is the intention of all parties to this
Lease that all questions concerning the intention, validity, or meaning of this
Lease or relating to the rights and obligations of the parties with respect to
performance hereunder shall be construed and resolved according to the laws of
the State of Connecticut without regard to conflicts of law principles.


 


SECTION 42. Disadvantaged Business Enterprise (DBE)
Requirement. This
Lease is subject to the requirements of the U.S. Department of Transportation’s
regulations, 49 CFR Part 23 Subpart F. ABPC agrees that it will not
discriminate against any business owner because of the owner’s race, color,
national origin, or sex in connection with the award or performance of any
concession agreement covered by 49 CFR Part 23, Subpart F.


 


The
ABPC agrees to include the above statements in any subsequent concession
agreements that it enters and cause those businesses to similarly include the
statements in further agreements.


 


In
accordance with the Regulations of the U.S. Department of Transportation, 49
CFR Part 23, Subpart F, the State has implemented a Disadvantaged Business
Enterprise (DBE) concession plan under which qualified firms may have the
opportunity to participate in the Airport’s concession business. It is the
policy of the Airport that DBE’s shall have the maximum opportunity to share in
the benefits from airport concession leasing. Further, in accordance with
Federal Regulations under 49 CFR Part 23, it is the State’s obligation to
ensure that DBE firms have the opportunity to compete for leases without
discrimination on the basis of race, color, national origin, or sex.


 


The
State has established an overall DBE participation goal of ten percent (10%),
as measured by total annual gross receipts, for the State’s Airport concession
operations. In signing this Lease, ABPC agrees to foster participation by DBE’s
in the operation of the Leased Premises in accordance with 49 CFR,
Part 23, Subpart F. ABPC further agrees to make a good faith effort to
ensure that on an annual basis, DBE’s certified by the State shall be utilized
for such participation, the amount of which shall be equal to ten percent (10%)
of the total of the budgeted amount of Garage and Surface Parking Operating
Expenses, Garage and Surface Parking Major Maintenance and Capital Improvement
Fund deposits, the Developer Payment, Reimbursement of Unpaid Developer
Payments, ABPC’s share of any State and Developer Additional Payment and ABPC’s
share of any State and Developer Percentage Payment for such Lease Year, and
such calculation shall specifically exclude any portion of Debt Service, the
State Minimum Guarantee, or Additional Payments to the State.


 


Example: Assume the following budget for a Lease
Year:


 


60

















 


	
   

  	
   

  	
  Garage

  	
   

  	
  Surface Lots

  	
   

  
	
  ·
  Parking Gross Receipts

  	
   

  	
  $

  	
  15,500,000

  	
   

  	
  $

  	
  7,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  · Operating Expenses

  	
   

  	
  1,600,000

  	
   

  	
  4,200,000

  	
   

  
	
  · Debt Service

  	
   

  	
  4,000,000

  	
   

  	
   

  	
   

  
	
  · Major
  Maintenance and Capital Improvement Fund Deposits

  	
   

  	
  600,000

  	
   

  	
  190,000

  	
   

  
	
  · State
  Minimum Guarantee

  	
   

  	
   

  	
   

  	
  8,700,000

  	
   

  
	
  Subtotal

  	
   

  	
  $

  	
  6,200,000

  	
   

  	
  $

  	
  13,090,000

  	
   

  
	
  Net Available

  	
   

  	
  9,300,000

  	
   

  	
  -6,090,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  · Total Net Available

  	
   

  	
  $

  	
  3,210,000

  	
   

  	
   

  	
   

  
	
  · Developer
  Payment

  	
   

  	
  1.000,000

  	
   

  	
   

  	
   

  
	
  · Reimbursement
  of Unpaid Developer Payments

  	
   

  	
  178,500

  	
   

  	
   

  	
   

  
	
  · Developer
  Additional Payment

  	
   

  	
  1,000,000

  	
   

  	
   

  	
   

  
	
  · Developer
  Percentage Payment

  	
   

  	
  4,725

  	
   

  	
   

  	
   

  



 


Based
on this example, ABPC’s annual DBE participation goal for a Lease Year would be
an amount equal to $877,323, i.e., ten percent (10%) of $8,773,225, the sum
total of Garage and Surface Parking Operating Expenses ($5,800,000), Garage and
Surface Parking Major Maintenance and Capital Improvement Fund deposits
($790,000), the Developer Payment ($1,000,000), the Reimbursement of Unpaid
Developer Payments ($178,500), the Developer Additional Payment ($1,000,000),
and the Developer Percentage Payment ($4,725), which could be satisfied by
fostering DBE’s certified by the State to participate in the operations of the
Leased Premises by supplying certain goods and services to include uniforms,
tools and supplies, towing, shuttle bus services, snow removal, custodial
maintenance or other commercially useful functions.


 


SECTION 43. Counterparts. This Lease may be executed in several
counterparts, and each executed counterpart shall be considered as an original
of this Lease.


 


SECTION 44. Captions. The captions at the beginnings of the several
sections of this Lease are not part of the context of this Lease, but are
merely labels to assist in locating those sections, and shall be ignored in
construing this Lease.


 


SECTION 45. Complete Agreement. This Lease (with its exhibits, which are
hereby incorporated herein by reference) contains the entire agreement between
the parties and supersedes any prior discussions, representations, warranties,
understandings or agreements between them respecting the subject matter hereof.
No changes, alterations, modifications, additions, or qualifications to this
Lease shall be made or be binding unless made in writing and signed by each of
the parties.


 


61

















 


SECTION 46. Civil Rights and Executive Orders.


 


A.  ABPC, for itself, its representatives,
successors in interest and assigns, as part of the consideration hereof, does
hereby covenant and agree as a covenant running with the Leased Premises that:
(1) no person, on the grounds of race, color, or national origin shall be
excluded from participation in, be denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities; (2) in the
construction of any improvements on the Leased Premises and the furnishing of
services thereon, no person on the grounds of race, color or national origin
shall be excluded from participation in, denied the benefits of, or otherwise
be subjected to discrimination; (3) ABPC shall use the Leased Premises in
compliance with all other requirements imposed by or pursuant to Title 49 Code
of Federal Regulations, Department of Transportation, Effectuation of Title VI
of the Civil Rights Act of 1964, and as said regulations may be amended. In the
event of breach of any of the above nondiscrimination covenants, the State
shall have the right to terminate this Lease and to re-enter and repossess said
Leased Premises and the facilities thereon and hold the same as if said Lease
had never been made or issued.


 


B.                  (a)     For the purposes of this section, “minority
business enterprise” means any small contractor or supplier of materials
fifty-one percent or more of the capital stock, if any, or assets of which is
owned by a person or persons: (1) who are active in the daily affairs of
the enterprise, (2) who have the power to direct the management and
policies of the enterprise and (3) who are members of a minority, as such
term is defined in subsection (a) of C.G.S. Section 32-9n; and “good
faith” means that degree of diligence which a reasonable person would exercise
in the performance of legal duties and obligations. “Good faith efforts” shall
include, but not be limited to, those reasonable initial efforts necessary to
comply with statutory or regulatory requirements and additional or substituted
efforts when it is determined that such initial efforts will not be sufficient
to comply with such requirements. For purposes of this Section, “Commission”
means the Commission on Human Rights and Opportunities.


 


(b)                  (1) ABPC agrees and warrants that in the
performance of this Lease, ABPC will not discriminate or permit discrimination
against any person or group of persons on the grounds of race, color, religious
creed, age, marital status, national origin, ancestry, sex, mental retardation
or physical disability, including, but not limited to, blindness, unless it is
shown by ABPC that such disability prevents performance of the work involved,
in any manner prohibited by the laws of the United States or of the State of
Connecticut. ABPC further agrees to take affirmative action to insure that
applicants with job related qualifications are employed and that employees are
treated when employed without regard to their race, color, religious creed,
age, marital status, national origin, ancestry, sex, mental retardation, or
physical disability, including, but not limited to, blindness, unless it is
shown by ABPC that such disability prevents performance of the work involved;
(2) ABPC agrees, in all solicitations or advertisements for employees
placed by or on behalf of ABPC, to


 


62

















 


state
that it is an “affirmative action-equal opportunity employer” in accordance
with the regulations adopted by the Commission; (3) ABPC agrees to provide
each labor union or representative of workers with which ABPC has a collective
bargaining agreement or other contract or understanding affecting operations at
the Leased Premises and each vendor with which ABPC has a contract or
understanding affecting operations at the Leased Premises, a notice to be
provided by the Commission, advising the labor union or workers’ representative
of ABPC’s commitment under this Section and to post copies of the notice
in conspicuous places available to employees and applicants for employment;
(4) ABPC agrees to comply with each provision of this Section and
C.G.S. Sections 46a-68e and 46a-68f and with each regulation or relevant order
issued by said Commission pursuant to C.G.S. 46a-56 (as amended by
Section 5 of Public Act 89-253), 46a-68e and 46a-68f; (5) ABPC agrees
to provide the Commission on Human Rights and opportunities with such
information requested by the Commission, and permit access to pertinent books,
records and accounts, concerning the employment practices and procedures of
ABPC as relate to the provisions of this Section and C.G.S. Section 46a-56.


 


(c)                   Determination of ABPC’s good faith efforts
shall include but shall not be limited to the following factors: ABPC’s
employment and subcontracting policies, patterns and practices; affirmative
advertising, recruitment and training; technical assistance activities and such
other reasonable activities or efforts as the Commission may prescribe that are
designed to ensure the participation of minority business enterprises in public
works projects.


 


(d)                  ABPC shall develop and maintain adequate
documentation, in a manner prescribed by the Commission, of its good faith
efforts.


 


(e)                   ABPC shall include the provisions of
subsection B(b) of this section in every subcontract or purchase order
entered into in order to fulfill any obligation of a contract with the State
and such provisions shall be binding on a subcontractor, vendor or manufacturer
unless exempted by regulations or orders of the Commission. ABPC shall take
such action with respect to any subcontract or purchase order as the Commission
may direct as a means of enforcing such provisions including sanctions for
noncompliance in accordance with C.G.S. Section 46a-56 (as amended by
Section 5 of Public Act 89-253); provided if ABPC becomes involved in, or
is threatened with, litigation with a subcontractor or vendor as a result of
such direction by the Commission, ABPC may request the State of Connecticut to
enter into any such litigation or negotiation prior thereto to protect the
interests of the State and the State may so enter.


 


63

















 


(f)                     ABPC agrees to comply with the regulations
referred to in this Section as they exist on the date of this Lease and as
they may be adopted or amended from time to time during the term of this Lease
and any amendments thereto.


 


C.                  (a)     Pursuant to Section 16 of Public Act
No. 91-58 (as amended by Section 8 of Public Act No. 91-407),
(1) ABPC agrees and warrants that in the performance of the contract, ABPC
will not discriminate or permit discrimination against any person or group of
persons on the grounds of sexual orientation, in any manner prohibited by the
laws of the United States or of the State of Connecticut, and that employees
are treated when employed without regard to their sexual orientation;
(2) ABPC agrees to provide each labor union or representative of workers
with which ABPC has a collective bargaining agreement or other contract or
understanding and each vendor with which ABPC has a contract or understanding,
a notice to be provided by the Commission advising the labor union or workers’
representative of ABPC’s commitments under this Section, and to post copies of
the notice in conspicuous places available to employees and applicants for
employment; (3) ABPC agrees to comply with each provision of this Section and
with each regulation or relevant order issued by said commission pursuant to
C.G.S. Section 46a-56; (4) ABPC agrees to provide the Commission with
such information requested by the Commission, and permit access to pertinent
books, records and accounts, concerning the employment practices and procedures
of ABPC as relate to the provisions of this section and C.G.S.
Section 46a-56.


 


(b)                  ABPC shall include the provisions of
subsection C(a) of this section in every subcontract or purchase order
entered into in order to fulfill any obligation of a contract with the State
and such provisions shall be binding on a subcontractor, vendor or manufacturer
unless exempted by regulations or orders of the Commission. ABPC shall take
such action with respect to any such subcontract or purchase order as the
Commission may direct as a means of enforcing such provisions including
sanctions for noncompliance in accordance with C.G.S. Section 46a-56;
provided, if ABPC becomes involved in, or is threatened with, litigation with a
subcontractor or vendor as a result of such direction by the Commission, ABPC
may request the State to enter into any such litigation or negotiation prior
thereto to protect the interest of the State and the State may so enter.


 


D.  This Lease is subject to the
provisions of Executive Order No. Three of Governor Thomas J. Meskill
promulgated June 16,1971, notwithstanding that the Labor Commissioner is
not a party to this Lease. The parties to this Lease, as part of the
consideration hereof, agree that said Executive Order No. Three is
incorporated herein by reference and made a part hereof. The parties agree to
abide by said Executive Order and agree


 


64

















 


that
the State Labor Commissioner shall have continuing jurisdiction in respect to
contract performance in regard to nondiscrimination, until this Lease is
completed or terminated prior to completion.


 


E.   ABPC agrees, as part
consideration hereof, that this Lease is subject to the Guidelines and
Rules issued by the State Labor Commissioner to implement Executive Order
No. Three, and that ABPC will not discriminate in its employment practices
or policies, will file all reports as required, and will fully cooperate with
the State of Connecticut and the State Labor Commissioner. A copy of said
Guidelines is attached and hereby made a part of this Lease.


 


F.   ABPC agrees that this Lease is
subject to the provisions of Executive Order No. Seventeen of Governor
Thomas J. Meskill promulgated February 15, 1973, notwithstanding that the
State Labor Commissioner may not be a party to this Lease. The parties to this
Lease, as part of the consideration hereof, agree that Executive Order
No. Seventeen is incorporated herein by reference and made a part hereof.
The parties agree to abide by said Executive Order and agree that the
contracting agency and the State Labor Commissioner shall have joint and
several continuing jurisdiction in respect to contract performance in regard to
listing all employment openings with the Connecticut State Employment Service.


 


G.   ABPC agrees that the attached
CONNECTICUT REQUIRED CONTRACT/AGREEMENT PROVISIONS entitled “Specific Equal
Employment Opportunity Responsibilities”, dated March 6, 1998, are hereby
made a part of this Lease.


 


H.  ABPC assures that it will
undertake an affirmative action program as required by 14 CFR Part 152,
Subpart E, to insure that no person shall on the grounds of race, creed, color,
national origin or sex be excluded from participating in any employment activities
covered in 14 CFR Part 152, Subpart S. ABPC assures that no person shall
be excluded on these grounds from participating in or receiving the services or
benefits of any program or activity covered by this subpart. ABPC assures that
it will require that its covered suborganizations provide assurances to ABPC
that they similarly will undertake affirmative action programs and that they
will require assurances from their suborganizations, as required by 14 CFR
Part 152, Subpart E, to the same effect.


 


I.    ABPC shall comply with the
provisions contained in Section 7 of Public Act No. 91-1
(June 12, 1991 Special Session), “AN ACT CONCERNING THE CODES OF ETHICS
FOR PUBLIC OFFICIALS AND LOBBYISTS”, which provides as follows:


 


(a)      No
person hired by the State as an independent contractor shall:


 


1.                    Use the authority provided to the person under the contract, or any
confidential information acquired in the performance of the contract, to obtain
financial gain for the person, an employee of the person or a member of the immediate
family of any such person or employee;


 


65

















 


2.                    Accept another State contract which would impair the independent
judgment of the person in the performance of the existing contract; or


 


3.                    Accept anything of value based on an understanding that the actions of
the person on behalf of the State would be influenced.


 


(b)      No
person shall give anything of value to a person hired by the State as an
independent contractor based on an understanding that the actions of ABPC or
independent contractor on behalf of the State would be influenced.


 


SECTION 47. Agent for Service of Process. CT Corporation System, One Commercial Plaza,
Hartford, Connecticut 06123, is hereby appointed as authorized agent for any
service of process directed to ABPC for any action arising out of or as a
result of this Lease, such appointment to be in effect through the life of this
Lease, including any supplements thereto and six (6) years thereafter. The
Secretary of State of the State of Connecticut or his/her successors in office
is hereby appointed as authorized agent for any service of process directed to
ABPC in the event CT Corporation System shall cease to be such authorized agent
for ABPC and ABPC shall fail to appoint a successor agent for any action
arising out of or as a result of this Lease, such appointment to be in effect
through the life of this Lease, including any supplements thereto and six
(6) years thereafter, except as otherwise provided by statute. A duplicate
of any notice or document served on the Secretary of State will also be mailed
to ABPC.


 


SECTION 48. Required Federal Aviation Administration
(FAA) Contract Provisions.


 


ABPC
certifies that it:


 


A. Is not owned or controlled by one or more citizens or nationals
of a foreign country included in the list of countries that discriminate
against U.S. firms published by the Office of the United States Trade
Representative;


 


B. Has not knowingly entered and will not knowingly enter into any
contract or subcontract for this project with a contractor that is a citizen or
national of a foreign country on said list, or is owned or controlled directly
or indirectly by one or more citizens or nationals of a foreign country on said
list;


 


C. Has not procured and will not procure any product, nor
subcontracted, nor will subcontract for the supply of any product for use on
the project that is produced in a foreign country on said list;


 


D. Unless the restrictions of this clause are waived by the
Secretary of Transportation in accordance with 49 CFR 30.17, if a contract
shall be awarded to a contractor


 


66

















 


or
subcontractor which knowingly procures or subcontracts for the supply of any
product or service of a foreign country on the said list for use on the
project, the Federal Aviation Administration may direct, through the sponsor,
cancellation of the contract at no cost to the Government;


 


E. Further, the contractor agrees that, if awarded a contract
resulting from this solicitation, it will incorporate this provision for
certification without modification in each contract and in all lower tier
subcontracts. The contractor may rely upon the certification of a prospective
subcontractor unless it has knowledge that the certificate is erroneous;


 


F. The contractor shall provide immediate written notice to the
State and ABPC if the contractor learns that its certification or that of a
subcontractor was erroneous when submitted or has become erroneous by reason of
changed circumstances. The subcontractor shall agree to provide immediate
written notice to the contractor, if at any time it learns that its
certification was erroneous by reason of changed circumstances;


 


G. This certification is a material representation of fact upon
which reliance was placed when making the award. If it is later determined that
the contractor or subcontractor knowingly rendered an erroneous certification,
the Federal Aviation Administration may direct, through the State and ABPC,
cancellation of the contract or subcontract for default at no cost to the
government;


 


H. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render, in good faith, the
certification required by this provision. The knowledge and information of a
contractor is not required to exceed that which is normally possessed by a
prudent person in the ordinary course of business dealings; and


 


I. This certification concerns a matter within the jurisdiction of
an agency of the United States of America and the making of a false and
fictitious, or fraudulent certification may render the maker subject to
prosecution under Title 18, United States Code, Section 1001.


 


SECTION 49. Suspension or Debarment. Suspended or debarred entities, may not submit
proposals for a State contract or subcontract during the period of suspension
or debarment regardless of their anticipated status at the time of contract
award or commencement of work.


 


A.
The signature on this Lease by ABPC shall constitute certification that to the
best of its knowledge and belief, ABPC or any person associated therewith in
the capacity of owner, partner, director, officer, principal investigator,
project director, manager, auditor or any position involving the administration
of federal or state funds:


 


(a)                   Is not presently debarred, suspended, proposed
for debarment, declared ineligible, or voluntarily excluded from covered
transactions by any federal department or agency;


 


67














 


(b)                  Has not within a three-year period preceding
this Lease been convicted of or had a civil judgment rendered against him/her
for commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (federal, state or local)
transaction or contract under a public transaction, violation of federal or
state antitrust statutes or commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false statements, or
receiving stolen property;


 


(c)                   Is not presently indicted for or otherwise
criminally or civilly charged by a governmental entity (federal, state or
local) with commission of any of the offenses enumerated in paragraph A
(b) of this certification; and


 


(d)                  Has not within a three-year period preceding
this Lease had one or more public transactions (federal, state or local)
terminated for cause or default.


 


B. Where ABPC is unable to certify to any of the
statements in this certification, ABPC shall attach an explanation to this
Lease. ABPC agrees to insure that the following certification is included in
each subcontract agreement to which it is a party, and further, to require said
certification to be included in any lower tier subcontracts and purchase
orders:


 


(a)                   The prospective lower tier participant
certifies, by submission of this proposal, that neither it nor its principals
is presently debarred, suspended, proposed for debarment, declared ineligible
or voluntarily excluded from participation in this transaction by any federal
department or agency.


 


(b)                  Where the prospective lower tier participant
is unable to certify to any of the statements in this certification, such
prospective participant shall attach an explanation to this proposal.


 


SECTION 50. Covenant as to Tax Exemption.


 


(a) To the extent
compliance is within the control of ABPC, ABPC covenants to comply with each
requirement of the Code necessary to maintain the exclusion of interest on the
Bonds from gross income for federal income tax purposes pursuant to
Section 103 of the Code and, in furtherance thereof, ABPC shall neither
fail to take any action nor consent to the failure to take any action, which
such failure to act or consent would cause the interest on the Bonds to be
includable in gross income for federal income tax purposes under
Section 103 of the Code.


 


(b) At least 95 percent
of the Net Bond Proceeds shall be used to provide Airport Facilities. ABPC
agrees and covenants that no requisition shall be paid for any cost of the
Garage which is not a Qualified Cost (other than Issuance Costs) until the date
on which the aggregate Qualified Costs (paid on or prior to such date) equals
or exceeds 95% of the total


 


68

















 


costs
of the Garage paid from the Net Bond Proceeds. After such date, ABPC may
requisition additional costs of the Garage provided that, after payment of such
costs, 95% or more of the Net Bond Proceeds requisitioned or transferred on or
prior to such date have been or will be used to pay Qualified Costs.


 


(c) None of the Net Bond
Proceeds will be used (i) to provide any airplane, skybox or other private
luxury box, or health club facility, any facility primarily used for gambling
or any store the principal business of which is the sale of alcoholic beverages
for consumption off premises or (ii) to acquire existing property or any
interest therein unless such acquisition meets the rehabilitation requirements
of Section 147(d) of the Code. Less than 25% of the Net Bond Proceeds,
if any, will be used, directly or indirectly to acquire land or any interest
therein other than land acquired for noise abatement or wetland preservation or
for future use as an “airport,” within the meaning of Section 142 of the
Code, and as to which land there is no other significant use; no portion of
such land is or will be used for farming purposes within the meaning of
Section 147 (c)(1) of the Code. No more than 2 percent of the Net
Bond Proceeds will be used to pay Issuance Costs.


 


(d) ABPC shall not
invest “gross proceeds” of the Bonds in a manner that causes the Bonds to be
“arbitrage bonds” within the meaning of Section 148 of the Code.


 


(e) The obligations of
ABPC under this Section shall be absolute and unconditional, and the
failure of the State, the Trustee or any other person to execute or deliver or
cause to be executed or delivered any documents or to take any action required
under this Lease or otherwise shall not relieve ABPC of its obligation under
this Section. Notwithstanding any other provision of the Trust Indenture or
this Lease to the contrary, so long as necessary in order to maintain the
exclusion of interest on the Bonds from gross income for federal income tax
purposes, the covenants contained in this Section shall survive the discharge
and satisfaction of the Bonds and the term of this Lease.


 


SECTION 51. Property Rights on Termination.


 


A. At all times during
the Lease Term, title to all building(s) and capital improvements existing
at the Lease Execution Date or constructed and/or installed hereafter on the
Leased Premises shall remain in the State, and all fixtures attached to the
Leased Premises and property personal or real, acquired with the proceeds of
the Bonds and/or the Gross Receipts of the Leased Premises shall become the
property of the State at the time they are affixed or acquired to the Leased
Premises or acquired.


 


B. At the termination of
this Lease, ABPC shall remove from the Airport all personal or other property
not covered by Section 51A hereof which ABPC owns or acquired for
operations at the Airport under this Lease Agreement including, without
limitation, all operating equipment, tools, furniture, furnishings, merchandise
and other items of a temporary or removable character.


 


C. ABPC shall have the
right, exercisable at any time during the term hereof and all renewals and
extensions thereof, and for a further period of 15 days thereafter, to remove
from the Leased Premises property removable under the provisions of
Section 5IB hereof, whether or not affixed to the realty, at any time
installed on the Leased Premises by ABPC at its


 


69

















 


expense
under this Lease. ABPC shall repair any damage to the Leased Premises resulting
from such removal. ABPC shall not be liable for rent or be deemed a tenant
holding over by reason of the fact that it allows any such property to remain
on the Leased Premises after the expiration of the Lease Term or any renewal or
extension thereof, but all of such property which is not removed within 15 days
following the end of the Lease Term, and all renewals and extensions thereof
shall be deemed to have been abandoned to the State and shall remain upon and
be surrendered with the Leased Premises as part thereof.


 


SECTION 52. Covenants With Respect To the
United States of America.


 


A. This Lease shall be
subordinate to the provisions of any existing or future agreement entered into
between the State and the United States to obtain federal aid for the
improvements, and maintenance or operation of the Airport.


 


B. In the event that a
national emergency shall arise as so declared by the U.S. Congress and the
President of the United States, as a result of which the federal government
shall take possession of the Airport or a portion thereof, including all or a
substantial portion of the Leased Premises, it is agreed by the parties hereto
that the State shall not be held liable or responsible or subject to any claims
or damages by or to ABPC as a result of said action by the federal government.


 


SECTION 53. Leasehold Mortgage.


 


A. The State
acknowledges that the purchasers of the Bonds and/or a provider of credit
enhancement for the Bonds and/or a provider of Private Debt may require ABPC to
mortgage its leasehold estate under this Lease as a precondition to their
purchase and/or credit enhancement, respectively, of the Bonds or the provision
of such Private Debt. The State hereby consents to the granting of a leasehold
mortgage for such purpose.


 


B. If ABPC does mortgage
its leasehold estate under this Lease to secure the interests of the holders of
the Bonds and/or a credit enhancer of the Bonds and/or a provider of Private
Debt, the Trustee, acting on behalf of the holders of the Bonds and/or such
credit enhancement provider and/or such Private Debt provider, as the Trust
Indenture shall provide (the “Leasehold Mortgagee”), shall be entitled, in the
event such Leasehold Mortgagee forecloses upon or otherwise acquires the
leasehold interest of ABPC, to sell, sublet, assign, or otherwise dispose of
such leasehold interest, provided the assignee or other party acquiring the
leasehold interest is approved by the State, which approval shall not be
unreasonably withheld nor decision delayed. In the event ABPC is in default
under this Lease, the State and ABPC expressly agree that the Leasehold
Mortgagee shall be entitled to enter upon the Leased Premises, to perform such
curative acts as may be necessary, and/or to operate and manage the Leased
Premises, either in its own name and right or on behalf of ABPC


 


C. The State shall send
separate written notice by registered or certified mail, postage prepaid, to
the Leasehold Mortgagee at such address as the Leasehold Mortgagee shall
designate, of any of the following events:


 


70

















 


(a)               The failure of ABPC to perform or comply with
any of the provisions or covenants contained in this Lease, the cessation of
business operations by ABPC for reasons other than maintenance, replacement, or
repair of the Leased Premises, the abandonment of the Leased Premises by ABPC,
or any other event which constitutes a default by ABPC under this Lease or for
which this Lease may be terminated (any of the foregoing shall constitute a
“default” for purposes of this Section 53); or


 


(b)              The occurrence of any event which gives rise
to an election by ABPC or the State to cancel or terminate this Lease. All
notices shall be given promptly upon the occurrence of any event requiring
notice.


 


D. In the event ABPC
fails to cure any default of this Lease within the time allowed hereunder, the
State shall provide the Leasehold Mortgagee with separate written notice of the
failure of ABPC to cure such default within the time allowed, and the Leasehold
Mortgagee shall be allowed an additional period of at least 30 days to cure
such default (including taking possession of the Leased Premises if necessary
to effect the cure) or to institute foreclosure proceeding (or otherwise
acquire title to ABPC’s leasehold estate under this Lease). If such default is
one which cannot reasonably be cured within 30 days, such default by ABPC shall
not result in a termination of this Lease provided the Leasehold Mortgagee is
paying all Rent and proceeding to cure such default by ABPC or to foreclose
upon ABPC’s leasehold estate. The State grants the Leasehold Mortgagee the
right to enter upon the Leased Premises to cure any default by ABPC. The State
shall accept any curative acts performed by the Leasehold Mortgagee as though
they were performed timely by ABPC.


 


E. No amendment to this
Lease shall be made without the prior express written consent of the Leasehold
Mortgagee.


 


F. The Leasehold
Mortgagee shall not be liable for ABPC’s obligations under this Lease unless
and until the Leasehold Mortgagee becomes the owner of ABPC’s leasehold estate
under this Lease by foreclosure or by deed in lieu of foreclosure, and
thereafter shall remain liable for such obligations only so long as it remains
the owner of the leasehold estate.


 


G. The State shall
execute and deliver to the Leasehold Mortgagee, upon request from time to time,
an estoppel certificate pertaining to the status of payments and the
performance of obligations hereunder and to such other information as the
Leasehold Mortgagee may reasonably require.


 


H. The Leasehold
Mortgagee shall enjoy the rights granted under this Section 53 until such
time as the Bonds are repaid in full and the leasehold mortgage securing such
payment is released. The Leasehold Mortgagee shall be entitled but not
required, to exercise such rights within its sole discretion.


 


I. There shall be no
merger of the leasehold estate created hereby with the fee or any other estate
or interest in the Leased Premises, or any part thereof by reason of the fact
that


 


71

















 


the
same person may acquire, own or hold the leasehold estate and the fee or any
other estate or interest.


 


J. The State
acknowledges that the contemplated Bond financing is essential to the
construction and completion of the Garage and that, subsequent to the Lease
Execution Date, the Leasehold Mortgagee may require certain changes or
modifications in this Lease to protect the interests of the Bondholders and/or
a credit enhancer of the Bonds and/or a provider of Private Debt. Therefore,
the State agrees that it will make those changes or modifications requested by
the Leasehold Mortgagee in good faith, provided that they do not adversely
affect the term of this Lease or any of the economic benefits accruing to the
State under this Lease and that they do not increase any of the obligations of
the State under this Lease, to the extent allowed by law.


 


IN WITNESS WHEREOF, the parties hereto have set their hands on the
day and year first above written.


 


	
  WITNESSES:

  	
  STATE OF CONNECTICUT,

  
	
   

  	
  DEPARTMENT OF TRANSPORTATION 

  JAMES F. SULLIVAN, COMMISSIONER

  
	
   

  	
   

  
	
  SIGN:

  	
  By:

  	
  /s/
  Robert F. Juliano

  
	
   

  	
   

  	
  Robert
  F. Juliano

  
	
   

  	
   

  	
  Bureau
  Chief,

  
	
   

  	
   

  	
  Bureau
  of Aviation and Ports

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGN:

  	
  /s/
  Maria Koukowslu

  	
   

  	
  (STATE SEAL)

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESSES:

  	
  APCOA BRADLEY PARKING

  
	
   

  	
  COMPANY, LLC

  
	
   

  	
   

  
	
  SIGN:

  	
  By:

  	
  /s/
  James A. Wilhelm

  
	
   

  	
   

  	
  Name:

  	
  JAMES
  A. WILHELM,

  
	
   

  	
   

  	
  Title:

  	
  EXECUTIVE
  VICE PRESIDENT,

  CHIEF OPERATIONS OFFICER, APCOA/STANDARD PARKING INC. 

  Its Manager Member

  
	
   

  	
   

  
	
   

  	
  Duly
  Authorized

  
	
   

  	
   

  
	
  SIGN:

  	
  /s/
  Carolyn R. Bodden

  	
   

  	
   

  
							



 


72

















 


	
  STATE
  OF CONNECTICUT

  	
   

  	
  )

  
	
   

  	
   

  	
  )
  at Newington MARCH 30 A.D., 2000

  
	
  COUNTY
  OF HARTFORD

  	
   

  	
  )

  



 


Personally
appeared for the State, Robert F. Juliano, Signer and Sealer of the foregoing instrument
and acknowledged the same to be the free act and deed of the Department of
Transportation, and his free act and deed as Bureau Officer, Bureau of Aviation
and Ports, before me.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Commissioner
  of the Superior Court

  



 


	
  STATE
  OF Illinois

  	
   

  	
  )

  
	
   

  	
   

  	
  )
  at 1:25 pm Feb. 24 A.D., 2000

  
	
  COUNTY
  OF Cook

  	
   

  	
  )

  



 


Personally appeared for APCOA Bradley Parking Company, LLC, James A.
Wilhelm, Signer and Sealer of the foregoing instrument and acknowledged the
same to be the free act and deed of APCOA Bradley Parking Company, LLC, and his
free act and deed as      of APCOA Bradley
Parking Company, LLC, before me.


 


 


	
  My
  Commission Expires:

  	
  /s/
  Carolyn R. Bodden

  
	
   

  	
  Notary
  Public

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  “OFFICIAL SEAL”

  
	
   

  	
  CAROLYN R. BODDEN

  
	
   

  	
  Notary Public, State of Illinois

  
	
   

  	
  My Commission Expires May 14, 2003

  



 


73

















 


	
   

  	
  Agreement
  No.    

  



 


This
Agreement is made with the approval of the undersigned pursuant to
Section 13b-42(b) of the General Statutes of Connecticut, as revised.


 


	
  APPROVED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:
  3/30/00

  
	
  Secretary,
  Office of Policy 

  And Management

  	
   

  	
   

  
	
  State
  of Connecticut

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:
  March 30, 2000

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
  For
  State Properties Reivew Board 

  State of Connecticut

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:
  4/3/00

  
	
  Attorney
  General 

  State of Connecticut

  	
   

  	
   

  



 


74