HomeMy WebLinkAboutbocc.con.015.2001APPROVED BY
Lttt/Or212 C
LICENSE AND PROFESSIONAL SERVICES
AGREEMENT
FOR
ASPEN/PITKIN COUNTY AIRPORT INTERNET ACCESS SERVICES
CONTRACT # O/Sxo/
THIS AGREEMENT is made and entered into this day of
! , 2001,
for one year, by and between Pitkin County, Colorado ("County") and Sopris Web Solutions
hereinafter ("Licensee").
1. PURPOSE:
The purpose of this Agreement is to enable Aspen/Pitkin County Airport to offer Internet
access to its customers and staff within the Airport Terminal on a pay-as-you-go basis. The
provided computers would allow browsing the Internet, checking e-mail, etc. This access would
be a valuable resource to business and vacation travelers. In particular, it would allow
passengers to convert idle time spent waiting into productive/enjoyable time keeping in touch or
doing work. Internet access would also be an interesting additional feature to the airport.
Licensee agrees to perform the following Scope of Work as more fully set forth
hereinafter.
2. SCOPE OF WORK:
2.1 Provide a total of four PC workstations in the airport waiting areas, 2 near the
vending machines by the restaurant and 2 in the secured boarding area on the Location shown on
the attached Exhibit A.
2.2 These computers would utilize credit card readers for billing in quarter (1/4) hour
increments.
2.3 Provide, in a minimum of two of the workstations, the ability to plug in the
client's own laptop computers to use this service to access the Internet.
2.4 Additional features and services will be added upon sufficient demand.
2.5 The attached Exhibit B provides additional conditions for performance the County
and Licensee will perform under this Agreement.
3. TERM: The term of this agreement is for one year and shall commence at 6:00 a.m.
MST on April 1st, 2001 and expire at 10:00 p.m. MST on March 31 st, 2002.
3.1 Renewal. The County may, if it so desires, provide the Licensee with an annual
review of its performance under this Agreement to be delivered sixty (60) days prior to the
anniversary date of March 31, 2002. If no such review indicating unsatisfactory performance is
provided in writing sixty (60) days prior to the anniversary date, Licensee's performance shall be
deemed to have been satisfactory for the prior year.
3.2 At the option of the County and provided Licensee is not in breach and has
performed in a satisfactory manner acceptable to the County, the County shall have the option to
renew this Agreement for one additional one (1) year term.
t
3.3 The County's exercise of its right of renewal shall be exercised by delivery of
written notice to the Licensee thirty (30) days prior to the expiration of the term.
4. PAYMENTS/SECURITY:
4.1 Licensee shall pay the County on a tiered commission scale based on the net
Internet access revenue (gross credit card receipts from the meters, less any refunds) received
from customers each month, according to the Rate Table below.
First Tier
Second Tier
Third Tier
5% of $1.00 to $1,000
25% of $1,001.00 to $4,000
50% of $4001 and excess
Licensee shall submit to the County an accurate calculation cover sheet with the payment. Each
payment is due and payable at the beginning of the month and delinquent by the 1st day of the
following month. Payment must be received by or before the payment due date to avoid late
charges.
4.2 The Licensee agrees to submit a detailed monthly gross revenue report with each
payment for the preceding month.
4.3 The Licensee agrees to provide a security deposit in a form of an irrevocable
Letter of Credit or a cash deposit in a form of a cashiers check, in the amount of $1,000.00.
All payments shall be made to the Pitkin County Treasurer, 506 East Main Street, Suite
201, Aspen, Colorado, 81611. All delinquent payments shall accrue default interest on any
unpaid and delinquent balance on the 1st day of the following month so delinquent at the rate of
two percent (2%) per month on the unpaid balance, compounded monthly; default interest shall
be due and payable without demand with the next regular payment due. Amounts received shall
be credited first to accrued interest and then to accrued and current payments due.
5. HOURS OF OPERATION: Licensee has the option of providing its services to the
Airport's customers between the hours of 6:00 a.m. MST and 11:00 p.m. MST seven (7) days per
week throughout the year at the same hours that the terminal building is open for business.
6. FOUR (4) COMPUTERS' WORK STATIONS AREA AND USE. The County shall
provide the Licensee with the exclusive right to occupy and use the area(s) as is depicted on
Exhibit A, attached hereto and incorporated herein by reference, for the sole purpose of computer
operations for Internet access in the airport.
7. QUALITY OF SERVICE/COMPLAINT RESOLUTION/PERFORMANCE
REVIEW BY COUNTY: The Licensee shall conduct its operations hereunder in a manner
consistent with the standards of a first-class tourist resort and conference destination.
2
7.1 Licensee acknowledges that the County has an interest in resolving any
complaints arising from the Licensee's operations, both as Licensor and owner/operator of a
public Airport. Based on the foregoing, in the event that County shall receive any complaint
arising from the Licensee's operations, the County shall immediately transmit such complaint to
Licensee for resolution.
7.2 Within ten (10) business days of the receipt of the complaint, Licensee shall
provide to the Director of Aviation a written report of the complaint and its resolution or of
Licensee's attempts at resolution.
7.3 In addition, Licensee shall submit an annual report to the Director of Aviation, on
the fifteen day of the month of January, of all complaints received by Licensee, including those
referred by County. Failure by Licensee to resolve a great majority of any complaints to the
satisfaction of the Director of Aviation shall be cause for termination hereof. The Director of
Aviation shall promptly respond to complaints by the public or submitted by the Licensee.
8. RESERVED RIGHTS OF COUNTY. County reserves the following rights with
respect to the location and the uses and operations to be conducted thereon by Licensee.
8.1 County reserves the right to unimpeded access over and across the location;
provided, that County shall not, in the exercise of this reserved right, unreasonably interfere with
Licensee's use of the location. County shall be entitled to enter upon the location in a reasonable
time and manner consistent with the purpose of the entry and inspection, for the purpose of
inspecting the same, ensuring compliance with the terms of this License, preventing waste or
Loss, responding to emergencies or complaints or enforcing any of County's rights hereunder.
8.2 County reserves, for the use and benefit of the public, the right of flight for the
passage of aircraft in the air space above the surface of the location, together with the right to
cause in and around said air space such noise as may be inherent in the operation of aircraft
utilizing the airport.
8.3 County reserves the right to protect the aerial approaches of the airport against
obstruction, including the right to prohibit Licensee from erecting, or permitting to be erected or
maintained, any building or other structure or obstruction on the location which would, in the
discretion of the County, limit the aeronautical usefulness of the airport or constitute a hazard to
aviation.
8.4 County reserves the right, during the time of war or national emergency, to lease
the airport or any part thereof, including the location or any part thereof, to the United States
Government for military purposes, and, in the event of such lease to the United States
Government for military purposes, the provision of this license shall be suspended insofar as
such provisions may be inconsistent with the provision of the lease to the United States
Government.
3
3
8.5 County reserves the right to subordinate the provisions of this license, without
prior notice to licensee, to the provisions of any existing or future agreement between the County
and the United States Government relative to the operation, maintenance or development of the
airport which has been or may be required as a condition precedent to the expenditure of Federal
funds for the development, maintenance or operation of the airport and, if such an agreement is
entered into between the County and the United States Government, the provisions of this license
shall be suspended and/or automatically modified insofar as such with the United States
Government. If, by reason of any agreement with the United States Government as aforesaid, it
becomes necessary to modify, relocate or remove any improvements or other structures situated
on the location, the Licensee agrees to modify, relocate or remove any such improvements or
structures as directed by County and County shall reimburse Licensee for the reasonable cost and
expense thereof.
8.6 County reserves the right to direct, in its sole discretion, all activities of the
Licensee at the airport in the event of an emergency.
8.7 County reserves the right to further plan, develop, improve, remodel and/or
reconfigure the airport, including the location, the terminal building, and existing vehicle and
pedestrian traffic patterns, and parking lots as County deems appropriate without interference or
hindrance by the Licensee, and County shall have no liability hereunder to Licensee by reason of
any interruption to Licensee's operations on the location occasioned by such County activities;
provided, however, that County shall consult in advance with Licensee on such changes and if
Licensee shall be unable to conduct reasonably normal seasonal business operations on the
location by reason of any such County activities, then the fees hereunder shall be equitably
adjusted during the period of such interruption.
8.8 The County reserves the right, in its sole discretion, to enter into agreements for
the financing or re -financing of the airport and Licensee agrees to cooperate in providing
information to prospective lenders and in providing estoppel certificates, if so requested.
8.9 County reserves the right to prohibit any commercial or non-commercial activity
by any party on the airport, which activity is not expressly permitted in writing.
8.10 County reserves the right to establish and enforce reasonable rules and regulations
for the conduct of activities and uses permitted herein and also to promulgate minimum standards
for the conduct of commercial activities related hereto including, without limitation, minimum
hours of operation if the County determines that the needs of the traveling public are not being
met.
9. ACCEPTANCE OF LOCATION. The parties acknowledge that Licensee will be in
possession of the location and agree that the Location, as shown on the attached Exhibit A, is
accepted on an "as is" basis
10. COORDINATION WITH OTHER AIRPORT USERS. County and Licensee
acknowledge that each has rights and obligations arising from various third -party agreements
with other Airport users. County and Licensee agree to cooperate with each other to effectuate
these third -party agreements, so long as such agreements are not illegal, impossible, or do not
4
4
unreasonably interfere with Airport operations or the rights and obligations of the various parties.
County and Licensee acknowledge their respective obligations as signatories under the following
Agreements:
10.1 That certain Agreement for paid parking services between Pitkin County and the
commercial parking services licensee.
10.2 Those certain Agreements for commercial ground transportation including taxis,
limousines and buses.
10.3 Those certain Agreements for on, or off -airport commercial car rental companies.
10.4 Those certain Agreements with the scheduled commercial airlines.
10.5 That certain Agreement between Pitkin County and the airport gift shop licensee.
10.6 That certain Agreement between Pitkin County and the commercial terminal
building advertisement/marketing licensee.
10.7 Such further and other agreements as the County may amend or enter into from
time to time in the normal operation of the Airport, provided there are no conflicts with the terms
of this Agreement, and provided that Licensee shall, upon request, be provided with copies of
any agreements that are connected to this obligation to cooperate, as set forth herein.
11. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS. In
connection with its occupancy and use of the Location and the conduct of its operation thereon,
the Licensee shall:
11.1 Comply with all applicable laws, rules and regulations of the County of Pitkin, the
State of Colorado, and the United States of America and any and all departments and agencies
thereof, as the same may now exist or may be hereafter promulgated or amended from time to
time.
11.2 Licensee agrees it will use the premises herein described in accordance with all
rules and regulations adopted by the County, or its Director of Aviation, for the management,
operation and control of the Airport, either promulgated by the County or said Director of
Aviation on its or his own initiative or by or in compliance with regulations or actions or any
Federal agency authorized to regulate interstate flights to and from said Airport.
11.3 Not discriminate against any person or class of persons by reason of race, color,
sex, creed, religion, handicap or national origin in providing any services or in the use of any
facilities provided for the public in any manner prohibited by Title 49, Code of Federal
Regulations, Subtitle A, Part 21 of the Regulations of the Office of the Secretary of
Transportation, and shall comply with the letter and spirit of the Colorado Anti -Discrimination
Act of 1957, as amended, and any other laws and regulations respecting discrimination in unfair
employment practices, and shall comply with such enforcement procedures as any governmental
authority might demand that the County take for the purpose of complying with any such laws
and regulations.
5
11.4 Pay promptly all taxes, excises, license fees and permit fees of whatever nature
applicable to its operations hereunder and to take out and keep current all licenses, municipal,
state or Federal, required for the conduct of its business or the operation or its equipment, and
further agrees not to permit any of said taxes, excises or license fees to become delinquent.
11.5 Comply with the rules and practices as set forth in the current Pitkin County
Airport Certification Manual and Security Plan as amended from time to time. Any fines
assessed against the County by the FAA as a result of the Licensee's failure to comply with the
provisions of this paragraph or other intentional or negligent acts or omissions of Licensee, its
employees or agents will be paid promptly to the County by the Licensee.
11.6 Conduct its commercial activities in such a way as not to unreasonably interfere
with other permitted users of the Airport in non-exclusive areas. County shall operate the
Terminal in such a way as not to unreasonably interfere with Licensee's operations.
12. LICENSEE REPORTS AND BOOKS AND RECORDS; COUNTY'S RIGHT TO
AUDIT
12.1 Licensee shall file the following:
12.1.1 At the completion of the contract year, Licensee shall file a statement of
annual gross receipts reportable, includable and excludable under this Agreement,
which report shall be prepared, signed and certified as correct by an official of
Licensee authorized to so certify.
12.2 Licensee shall maintain full and accurate books of account and records from
which "gross receipts", as defined herein, the amount and nature of all business transacted on or
through the Airport Location, can be determined and verified, according to standard and accepted
accounting and auditing practices. The books of account and records that Licensee must
maintain must include, but need not be limited to, legible, true and accurate copies of all written
and electronic records and reports kept in the normal course of Licensee's business including,
without limitation, general ledgers, bank statements, bank books, bank deposit slips, and all
Airport -related revenue reports submitted by Licensee to its franchiser (if applicable) and all
computer and/or microfilm or microfiche reproductions of the above. These books and records
shall be maintained on a current basis and shall be attainable within a period of no more than five
(5) business days from the date of demand.
12.3 The County, annually and at the end of the term herein, unless expressly waived
by the County, may conduct audits of Licensee's books of account and records, which audits
shall be conducted upon reasonable notice to Licensee and during Licensee's normal weekday
business hours. In performing such audits, County shall be entitled to review, and Licensee shall
be obligated promptly to provide to the County upon demand therefor, all of the books of account
and records that Licensee is obligated to maintain. Should Licensee fail to maintain the books of
account and records required to be maintained pursuant hereto, or should Licensee fail to deliver
and permit County or its auditor to review Licensee's books and records, and other documents
and files, as required by this subparagraph, said default is agreed by the parties to be a material
6
breach of this Licensee Agreement and Licensee agrees to pay, as liquidated damages for such
breach, an additional amount equal to either fifty (50%) percent of the payments and charges due
from Licensee hereunder for the most recent operations year for which such books of accounts
and records are available to the County; provided, however, that Licensee shall only pay these
damages for failure to keep required records if such requirements are reasonable in light of
Licensee's business practices.
If any audit shows percentage compensation and other fees and charges that should have
been paid to the County by the Licensee pursuant to this Agreement were understated or
underpaid for any period involved, Licensee shall, within thirty (30) days notice by County of any
such deficiency, pay to the County the full amount underpaid, plus two percent (2%) interest per
month, on such underpayment from the time said underpayment should have been paid to the
time said underpayment is fully paid. If the amount of underpayment exceeds exactly three (3%)
percent of the total percentage compensation that was owed by Licensee to the County for the
annual audit period involved, Licensee, in addition to paying the County the underpayment owed
and interest accrued thereon, shall within thirty (30) days notice by the County reimburse the
County for the cost of the audit not to exceed Fifteen Hundred Dollars ($1,500.00). If the audit
discloses overpayment of the percentage compensation paid to the County by Licensee, the
County shall refund the amount of overpayment to Licensee within thirty (30) days of said audit.
The County shall hold all information obtained from any such audit in confidence, except
as may be necessary to enforce the County's rights under this Agreement, except with respect to
tax proceedings, and except with respect to any legal requirements or Court Order to disclose
said information.
13. ENVIRONMENTAL QUALITY IMPROVEMENT POLICY
It is the policy of the Pitkin County Board of County Commissioners (BOCC) that Pitkin
County plan for and continually reduce environmental degradation. It is the express intention of
the BOCC that all County lessees, licensees and permittees strictly comply with all existing and
future environmental rules and regulations, and be sensitive to all present and future
environmental issues. The County gives notice that environmental compliance and sensitivity to
environmental issues are and will be substantial factors in future performance reviews and
procurements.
13.1 Examples of environmental quality improvements include, but shall not be limited
to: CFC reduction, emissions control, packaging materials, protection of the ozone, recycle of
materials, reuse of materials, litter collection, environmental education. The Licensee is
encouraged to be creative in developing and implementing its own EQIP.
14. AIRPORT MASTER PLAN The parties acknowledge that the County has adopted an
Airport Master Plan that provides for potential changes to the Location during the term hereof.
Licensee shall cooperate in the implementation of said plan and will make no claim against the
County for other than the unreasonable interference with its business activities caused by such
implementation. Copies of the Airport Master Plan Update are available for inspection or for
sale in the office of the Director of Aviation.
7
15. MAINTENANCE AND REPAIR OF LOCATION.
15.1 County shall, at County's own expense, keep the structure and exterior of the Air -
carrier Terminal and the interior common areas in good condition and repair. The County shall
be responsible for maintenance and repair of the roof, exterior walls, floor (excluding floor
covering), structural components, heating, lighting, ventilation and electrical service (to the point
of connection); except if any damage thereto is caused by the negligence of Licensee, in which
case Licensee shall be responsible for such repair. Licensee shall be responsible for maintenance
and repair of all its trade fixtures and equipment. Equipment/fixture damages caused by power
surges and power outages has to be investigated for the source of the cause. Subsequently,
proper steps will be taken through the responsible channels for repair and maintenance. The
County shall be responsible for such repairs, only if any damage thereto is caused by the
negligence of County.
15.2 The County shall provide normal custodial services (sweeping, mopping, trash
collection, snow removal, etc.) to the common areas of main public terminal facilities. Licensee
shall provide normal custodial services within its exclusive area and shall keep its exclusive
areas clean, picked -up, orderly, in a safe condition and in accordance with first-class maintenance
practices and in common with other users of Licensee's classification.
15.3 Licensee shall not cause nor, when advised thereof by the County, permit any
dangerous or hazardous condition or nuisance to exist related to the use and occupancy granted
herein.
15.4 Licensee shall not place any displays, signs, advertising or brochures upon the
Location, except of such design, content and structure as shall be approved by the Director of
Aviation, provided that such approval shall not be unreasonably withheld. Any sign permitted by
County shall, in addition, at all times comply with applicable Airport policies, rules and
regulations.
16. LICENSEE'S PERSONAL PROPERTY/TRADEMARKS. All personal property,
equipment, furnishings, decorations and trade fixtures placed upon the Location by Licensee
shall be at Licensee's sole risk, and County shall not be liable for damage to or loss of such
personal property or trade fixtures arising from the acts or omissions of any persons or from any
causes whatsoever, except from the acts or omissions of County, its agents and employees.
Licensee represents that it is (and will be for the entire term hereof) the owner of or fully
authorized to use any and all services, processes, machines, articles, trademarks, logos, names or
slogans to be used by it in its operations under or in any way connected with this Agreement.
Licensee agrees to save and hold the County, its officers, employees, agents and representatives
free and harmless of and from any loss, liability, expense, suit, demand or claim for damages in
connection with any actual or alleged infringement of any patent trademark or copyright arising
from any alleged or actual unfair competition or other similar claim arising out of the actions of
Licensee under or in any way connected with this Agreement.
8
r
17. DESTRUCTION OF BUILDINGS AND OTHER IMPROVEMENTS. If the
buildings and other improvements located upon the Location shall be rendered untenantable by
fire or other casualty, County shall, at County's cost (subject to and secondary to Licensee's
obligation, if any, to provide fire and casualty insurance for the Location, as provided below),
restore and repair the same to tenantable condition as speedily as possible and the rent shall be
equitably adjusted, in whole or in part, during the period of such restoration and repair according
to the portion of the buildings or other improvements so rendered untenantable; except that there
shall be no abatement of rent if such fire or other casualty shall be caused by the intentional acts
or negligent acts or omissions of Licensee, its agents, employees, invitees or licensees.
Notwithstanding the foregoing, County shall not be obligated to expend in the restoration and
repair of any buildings or other improvements so damaged by fire or other casualty in excess of
the insurance proceeds received by County by reason thereof. If such insurance proceeds are
insufficient to pay in full the costs of such restoration and repair, County shall not be obligated to
undertake such restoration and repair unless Licensee shall agree to contribute to the costs of
such restorations and repair in an amount equal to such deficiency.
18. INDEMNITY AND INSURANCE.
18.1 The Licensee, (including, by definition here and hereinbelow, the officers, agents,
and representatives) shall release and discharge the County; and the Licensee shall indemnify and
hold harmless the County of Pitkin and its officials, employees, agents and representatives from
and against liability for any claim, demand, loss, damages, penalty, judgment, expenses, costs
(including costs of investigation and defense), fees (including reasonable attorney and expert
witness fees) or compensation in any form or kind whatsoever for any bodily injury, death,
personal injury or property damage arising out of or in connection with any intentional act or
negligent act, error or omission by the Licensee, loss of use of facilities/premises, or for any
resulting liability alleged to accrue against the County on account of the Licensee's acts, errors or
omissions; provided, however, that such indemnity shall not be construed as an indemnity for
bodily injury or property damage arising from the sole negligence or intentional acts of the
County or its employees.
18.2 The Licensee further shall investigate, process, respond to, adjust, provide defense
for and defend, pay or settle all claims, demands, or lawsuits related to its acts, errors and
omissions hereunder at its sole expense and shall bear all other costs and expenses related
thereto, even if the claim, demand or lawsuit is groundless, false or fraudulent.
18.3 To fund this indemnity, in whole or in part, the Licensee shall secure and maintain
for the term of its contractual relationship with the County such insurance policies, from
companies licensed in the State of Colorado, as will protect itself, the County (with the County
named as additional insured), and others as specified, from claims for bodily injuries, death,
personal injury or property damage, which may arise out of or result from the Licensee's
intentional or negligent acts, errors or omissions. The following insurance coverage, at or above
the limits indicated and including such endorsements as are indicated by an "X", are required:
9
9
18.3.1 All insurance coverages shall be in the amount and coverages referred to
in the attached Required Clauses.
18.4 To provide evidence of the required insurance coverages, copies of Certificates of
Insurance in a form acceptable to the County shall be filed with the County (through the Director
of Aviation) no later than fifteen (15) calendar days prior to commencement of operations
affecting the County. Failure to file or maintain acceptable Certificates of Insurance with the
County is agreed to be a material breach of any contract and grounds for termination. These
Certificates of Insurance shall contain a provision that coverage afforded under the policies will
not be canceled or materially altered unless at least thirty (30) calendar days prior written notice
by certified mail, return receipt requested (effective upon proper mailing), has been sent to the
County (through the Director of Aviation). (For purposes of this provision, "materially altered"
shall mean a change affecting the coverages required herein, including a change to policy limits
as set out in the then -current policy declarations page.)
18.5 In addition, these Certificates of Insurance shall contain the following clauses:
18.5.1 The clause "other insurance provisions," in a policy in which the County
of Pitkin is named as an insured, shall not apply to the County of Pitkin.
18.5.2 The insurance companies issuing the policy or policies shall have no
recourse against the County of Pitkin for payment of any premiums or for assessments under any
form of policy.
18.5.3 Any and all deductibles in the above -described insurance policies shall be
assumed by and be for the amount of, and at the sole risk of the Licensee.
18.5.4 Location of operations shall be: "all operations and areas on the
Aspen/Pitkin County Airport conducted by or used and occupied by Licensee."
18.6 Certificates of Insurance for all insurance policies shall be delivered to the
Director of Aviation at least fifteen (15) days prior to a policy's expiration date except for any
policy expiring on the expiration date of the Agreement or thereafter.
18.7 County shall procure fire and extended coverage insurance and boiler insurance
covering the buildings on the Location for the full replacement value thereof. County shall
maintain such insurance in full force and effect during the term of this License and shall furnish
Licensee, at Licensee's request, with a copy of a certificate evidencing the issuance thereof.
19. RIGHTS OF SEIZURE. County shall not be liable in any respect to Licensee in the
event of any seizure of all or any part of the Location, or the buildings and other improvements
located thereon, by the United States of America or the State of Colorado in time of war or other
national emergency; provided, that the fee provided hereunder shall abate during such period of
seizure to the extent that such seizure shall interfere with Licensee's ability to conduct its
business upon the Location.
10
20. ASSIGNMENT. Licensee shall not, voluntarily or by operation of law, assign, convey
or transfer this License, any of Licensee's interest in this License or any rights and obligations
hereunder; or sublicense the Location or any part thereof; or assign, convey or transfer a
controlling interest in Licensee's business entity, without the prior written consent of County,
which consent shall not be unreasonably withheld; provided, however, the Licensee shall be
required to provide evidence satisfactory to County of the successful business experience and
financial stability of Assignee/Transferee, and audit of and full payment of all costs, fees and
charges to the date of assignment/conveyance/transfer and proof of compliance of the
assignment/conveyance/transfer with the County's Airport management goals and objectives,
"including without limitation, small business goals, DBE goals, and environmental impact and
quality of service." Nothing contained interests in its personal property, fixtures, or related
assets, which security interests may be granted without prior consent of the County or the
Director of Aviation.
21. NO THIRD PARTIES. This License and Use Agreement does not and shall not be
deemed or construed to confer upon or grant to any third party or parties, except to parties to
whom Licensee may assign this Agreement in accordance with the specific written permission of
the Director of Aviation, and excepting any successor to the County, any rights to claim damages
or to bring any suit, action or other proceeding against either the County or Licensee because of
any breach hereof or because of any of the terms, covenants, agreements or conditions herein
contained.
22. RELATIONSHIP OF PARTIES. It is the intent and agreement of the County and the
Licensee that they shall have the relationship respectively of Licensor/Licensee and
Permittor/Permittee hereunder, and nothing contained herein shall be deemed or construed to
constitute the parties as partners or joint venturers, and in no event shall County be liable for any
loss which may result from the operations of Licensee upon the Location or for any indebtedness
incurred by Licensee in the operation of its business on the Location or for the claims of third
parties against Licensee in the conduct of its business.
In. addition, County shall not be liable in any manner to the Licensee for any damages the
Licensee may incur due to the inability of the County to deliver possession of the Location, or
any part thereof, to the Licensee for reasons beyond the reasonable control of the County.
23. NON -LIABILITY OF COUNTY'S AGENTS AND EMPLOYEES. No official,
agent, or employee of County shall be personally liable to Licensee in the event of any default or
breach hereunder by County.
24. TERMINATION. The Licensee may terminate this Agreement at the end of any one
year term by providing written notice to Aspen/Pitkin County, and at least 60 days prior to the
end of one year term.
25. DEFAULT AND TERMINATION. If Licensee shall default in the payment of costs,
fees or charges when due or in the timely remittance to County of any other amounts to be
remitted to County under the provision of this License and shall not cure such monetary default
within ten (10) days after written notice from County specifying such default; or if Licensee shall
11
I/
default in the performance of any other obligations or conditions to be performed by Licensee
under the provisions of the License and shall not cure such other default within ten (10) days
after written notice from County specifying such default (or within three (3) business days if the
default is maintenance of a hazardous condition or failure to maintain and/or prove required
insurance coverage); or in the event of the insolvency or bankruptcy of License; or in the event of
an unapproved (by County) assignment, transfer or conveyance of Licensee's interest as defined
herein; then in any of such events if such defaults shall remain uncured after the cure period
specified, County may thereafter terminate this License by giving written notice of termination of
Licensee. If, however, the Licensee demonstrates good faith due diligence in curing such default
as indicated herein, (with the exception of maintenance of a hazardous condition or failure to
maintain and/or prove required insurance coverage and monetary default) the County shall grant
additional reasonable time necessary to cure default not to exceed thirty (30) days. Upon
termination of this License, County may reenter the Location and remove all persons and
property therefrom, using all necessary force to do so, and shall have such other rights and
remedies as may be provided for by law or in equity, including damages. In the event of any
such default by Licensee, County shall be entitled to recover its costs, including a reasonable
attorney fee, in all proceedings in connection therewith.
26. NOTICE: Any written notice required by this Agreement shall be hand delivered, faxed
or sent first class mail, postage prepaid as follows:
a. To Pitkin County:
b. To Licensee:.
Aspen/Pitkin County Airport
Peter Van Pelt
Director of Aviation
0233 E. Airport Road, Suite A
Aspen, CO 81611
Malcom McMichael III
Christopher. Berry
Sopris Web Solutions
P.O. Box 876
Basalt, CO 81621
27. REPRESENTATIONS OF LICENSEE. Licensee represents and warrants to County as
follows:
27.1 Licensee, and those individuals executing this License on behalf of Licensee,
represent and warrant that they are familiar with Section 18-8-301, et se_c. of the Colorado
Revised Statutes (Bribery and Corrupt Influences) and Section 18-8-401, et seg. of the Colorado
Revised Statutes (Abuse of Public Office) and that no violations of the provisions thereof are
present.
12
27.2 Licensee, and those individuals executing this License on behalf of Licensee,
represent and warrant that to the best of their knowledge no employee of Pitkin County has
personal or beneficial interest whatsoever in the License or in the business to be conducted upon
the Location by the Licensee.
28. GENERAL PROVISIONS
28.1 This License contains the entire agreement of the parties and there have been no
promises, representations or agreements, either express or implied, except as expressly set forth
herein. Any and all prior agreements or understanding between the parties are expressly agreed
to have merged herein.
28.2 The provisions of this License shall be severable and the invalidity of any
provision hereof shall not affect the validity of any other provision hereof.
28.3 This License may be modified or amended or supplemented only by an instrument
in writing signed by the parties hereto. The County's representative for the administration of this
Agreement shall be the Director of Aviation or his/her designee in writing; provided, however,
that all matters affecting material terms of this Agreement, including term, fees and charges and
use of Location by Licensee, shall only be modified or amended by a writing approved by a
Resolution of the Board of County Commissioners at a duly -noticed public meeting.
28.4 The failure of either party hereto to exercise any right or remedy hereunder shall
not be deemed a waiver thereof or a waiver of the right of exercise the same at any future time, or
the waiver of any other right or remedy hereunder. No waiver by either party of any right or
remedy hereunder shall be effective unless in writing signed by the party.
28.5 The parties agree that this Agreement was negotiated and drafted by the mutual
efforts of the parties hereto and agree that no legal presumption shall arise as a result of the
identity of the drafter of this Agreement or any presumed unequal status arising therefrom.
28.6 If either party hereto shall institute legal proceedings to protect or enforce any of
its rights or remedies hereunder, then the party prevailing in such legal proceedings shall be
entitled to recover all of its costs in connection therewith, including a reasonable attorney's fee.
28.7 This License shall be governed by and construed in accordance with the laws of
the State of Colorado and venue is agreed to be exclusively in the courts of Pitkin County,
Colorado.
28.8 This License shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, successors and assigns.
28.9 This License shall be executed in duplicate originals, with one original to be held
by each party.
13
/3
29. AUTHORITY OF LICENSEE'S REPRESENTATIVE. As an inducement to the
County to execute this agreement, the undersigned representative of Licensee represents that
he/she is expressly authorized to execute this Agreement and to bind Licensee to the terms and
conditions hereof and acknowledge that the County is relying on this representation,
authorization and execution.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
CONSULTANT/LICENSEE
PITKIN COUNTY, COLORADO:
ASPEN/PITKIN COUNTY AIRPORT
Sopris Web Solutions Peter Van Pelt
Malcom McMichaels III
psis We Solutions
Christopher Be
Date: � / �'
PITKIN COUNTY, COLORADO:
4<z
Hilary F.iith,
County Manager
Date: 3/231D /
14
Director of Aviation
Date: 2/a8/0
/Y.JJohn Ely
County Attorney
Date: 0570
Corporate Secretary Seal
/7'
REQUIRED CLAUSES
For purposes of these required clauses, "Consultant/Contractor" means the bidder/proposer or other party who may
eventually enter into a contract with the County.
The Bidder/Proposer shall be subject to the following provisions:
1. COMPLIANCE WITH PROCUREMENT CODE AND APPLICABLE STATE CONTRACTING LAW
A. The Contractor acknowledges that this Agreement is entered into subject to the requirements of the "Pitkin
County Procurement Code," (Section 8.5 of the Pitkin County Home Rule Charter, Resolution No. 82-37,
April 12, 1982). As such, the Contractor agrees to comply with all requirements of said Procurement Code,
and such requirements are incorporated herein by this reference.
B. The Contractor shall immediately notify the County Manager in writing of any violation of said Code or
statutes by the County's employees or agents, which violation(s) is known or should have been known by
him, and failure to so notify the County of any violation(s) within five (5) days of knowledge of such
violations shall be considered a breach of this Agreement. Further, such failure to notify the County of
violation of the Procurement Code or statutes within five (5) days of knowledge shall be deemed as a waiver
of any action or defense that the Contractor may have against the County by reason of such violation of the
Procurement Code or statutes.
2. WARRANTIES AGAINST CONTINGENT FEES, GRATUITIES, KICKBACKS AND CONFLICT OF
INTEREST
A. Covenant Against Contingent Fees. The Contractor warrants that no person or selling agency has been
employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial
or selling agencies maintained by the Contractor for the purpose of securing business.
B. Gratuities Prohibited. The Contractor agrees not to give any employee or former employee of Pitkin County
a gratuity or any offer of employment in connection with any decision, approval, disapproval,
recommendation, preparation of any part of a program requirement or a purchase request, influencing the
content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any
other advisory capacity in any proceeding or application, request for ruling, determination, claim or
controversy, or other particular matter, pertaining to this Contract or Subcontract, or to any solicitation or
proposal therefor.
C. Gratuity means a payment, loan, subscription, advance deposit of money, services, or anything of more than
nominal value, present or promised, unless consideration of substantially equal or greater value is received.
D. Kickbacks Prohibited. It shall be a breach of Contract for any payment, gratuity, or offer of employment to
be made by or on behalf of a subcontractor under a contract to the prime Contractor or higher tier
subcontractor or any person associated therewith, as an inducement for the award of a subcontract or order.
The Contractor is prohibited from inducing, by any means, any person employed under this Contract to give
up any part of the compensation to which he/she is otherwise entitled. The Contractor shall comply with all
applicable local, state and federal "anti -kickback" statutes or regulations.
E. Conflict of Interest Prohibited. No official, officer, employee or representative of the County during the term
of this Contract or one (1) year thereafter shall have any interest, direct or indirect, in this Contract or the
proceeds thereof. (Additional restrictions on present and former employees of County are found in Article 7
of the Procurement Code).
15
F.
Sub -Contract Clause. The prohibitions against contingent fees, gratuities, kickbacks and conflict of interest
prescribed in this Contract shall be made a condition of and conspicuously set forth in every sub -contract and
solicitation therefor.
G. Conspicuously means written in such special or distinctive format, print, or manner that a reasonable person
against whom it is to operate ought to have noticed it.
H. Remedies. In addition to other remedies it may have for breach of the prohibitions against contingent fees,
gratuities, kickbacks and conflict of interest, the County shall have the right to:
(I) Terminate this Contract without liability by the County;
(2) Debar or suspend the offending parties from being a contractor or sub -contractor under County
contracts;
(3) Deduct from the contract price or consideration, or otherwise recover, the value of anything
transferred or received by the Contractor; and
(4) Recover such value from the other offending parties.
3. EQUAL EMPLOYMENT OPPORTUNITY AND DISADVANTAGED/MINORITY/WOMEN
BUSINESS ENTERPRISES (DBE/MBE/WBE)
A. Pursuant to local, state and/or federal anti -discrimination and affirmative action programs, contractor shall
meet all applicable requirements with respect to employment and subcontracting in connection with
Disadvantages/Minority/Women individuals and enterprises (DME/MBE/WBE).
B. In connection with the execution and administration of this Contract, and any subcontracts, the Contractor
shall not discriminate against any employee or applicant for employment because of race, religion, color, sex,
national origin, age, handicap or status as a veteran.
C.
In connection with the performance of this Contract, the Contractor will cooperate with the County in
meeting the County's commitments and goals with regard to the maximum utilization of disadvantaged,
minority and women business enterprises and will use its best efforts to ensure that such business enterprises
shall have the maximum practicable opportunity to compete for employment and/or subcontract work, if any,
under this Contract.
D. The Contractor will furnish all necessary information and reports and will permit access to its books, records,
and accounts by Pitkin County for purpose of investigation to ascertain compliance with the
nondiscrimination/affirmative action provisions of any resultant contract.
E.
Employment Data and Affirmative Action Plan. If requested, the Contractor agrees to submit on an
Employment Data Form to be provided by the County, the data showing the utilization of disadvantaged
persons, minorities and women by job category within its organization. Where the Contractor has fifty (50)
or more employees or it is participating in contracts with the County which exceed Fifty -Thousand
(S50,000.00) Dollars, an Affirmative Action Plan must be submitted to the County when requested by the
County Attorney's Office within ten (10) days after selection.
F. Noncompliance. In the event of the Contractor's noncompliance with the nondiscrimination/affirmative
action provisions of any resultant contract, Pitkin County shall impose such contract sanctions as it may
determine to be appropriate, including, but not limited to:
(1) Withholding of payments under the Contract until the Contractor complies, and/or
(2) Cancellation, termination, or suspension of the Contract, in whole or in part.
16
/6
4. TERMINATION FOR DEFAULT OR FOR CONVENIENCE OF COUNTY
A. The performance of work under the Contract may be terminated by the County:
(1)
Whenever the Contractor shall default in performance of this Contract in accordance with its terms,
and fails to cure or show cause why such failure to perform should be excused within ten (10) days (or
longer as the County may allow or shorter, but not less than three (3) days, for failure to provide proof
of insurance or maintenance of any dangerous condition) after hand -delivery or mailing to the
Contractor of a notice specifying the default. If mailed, said notice shall be sent by certified mail,
return receipt requested, to the address specified herein for the Contractor.
The Contractor shall not be in default by reasons of any failure in performance of this Contract in
accordance with its terms if such failure arises out of causes beyond the control and without the fault
or negligence of the Contractor. Such causes may include, but are not restricted to, acts of God,
natural disasters, strikes, or freight embargoes, but in every case the failure to perform must be
beyond the control and without the fault or negligence of the Contractor. Upon request of the
Contractor, the County shall ascertain the facts and failure, and, if the County shall determine that any
failure to perform constituted a valid commercial excuse, the performance shall be revised
accordingly and notice of default withdrawn; or
(2) Whenever for any reason and in its sole discretion the County shall determine that such termination is
in its best interest and convenience.
B. Notice of Termination. In the event of termination for the convenience of the County, the County shall
deliver to the Contractor a written notice of termination, specifying the reasons therefor, and the effective
date of such termination. The effective date shall not be earlier than the date of hand -delivery or the date of
mailing of the notice, plus three (3) business days. The notice of termination shall be sent regular first-class
mail to the address of the Contractor herein provided.
C. Termination Procedure. After the effective date of the notice of termination for default or for the
convenience of the County, unless otherwise directed by the County, the Contractor shall:
(I) Stop work under the Contract on the date specified in the notice of termination.
(2) Place no further orders for materials, services or facilities.
(3) Terminate all orders and subcontractors to the extent that they relate to the performance of work
terminated by the notice of termination.
(4) With the approval or ratification of the County, settle all outstanding liabilities and all claims arising
out of such termination on orders or subcontracts, the cost of which would be compensable or
reimbursable in whole or in part in accordance with this Contract
D. Termination Payment. After the effective date of a notice of termination for the convenience of the County,
the Contractor shall submit to the County his termination claim in the form of a final invoice in accordance
with the provisions in "Method of Payment," including costs incurred to the date of termination, and costs
incurred because of termination, which termination costs shall not exceed 10% of the total amount of
proposal; provided, however, that in the event of default by the Contractor, no extra costs incurred because of
termination shall be paid to the Contractor and any costs paid shall not be a waiver of any claim, counter-
claim or set-off by the County against the Contractor on account of any default. Such claim must be
submitted promptly, but in no event later than thirty (30) days from the effective date of termination, unless
one or more extensions are granted in writing by the County. Upon the Contractor's failure to submit a claim
in the time allowed, the County may review the information available to it and determine the amount due the
Contractor, if any, and pay the Contractor the amount as determined.
17
/7
E.
Termination Settlement. Subject to Paragraph 4.D., the Contractor and County may negotiate the whole or
any part of the amount or amounts to be paid, upon termination for default or for the convenience of the
County.
F. Remedies. The Contractor shall have the right of appeal from any determination made by the County under
"Tennination for Default or for Convenience of County;" except that if the Contractor has failed to submit his
claim within the time provided in Paragraph 4.D., above, and has failed to properly request extension, he
shall have no such right of appeal. In any case where the County has made a determination of the amount due
under Paragraphs 4.D. or 4.E., above, the County shall pay the Contractor: (1) the amount the County has
determined if there is no right to appeal or if no timely appeal has been taken, or (2) the amount finally
determined on such appeal if an appeal has been taken.
G. Method of Appeal. If the Contractor disagrees with the County's determination under Paragraphs 4.D. or
4.E., he can appeal this decision in writing to the County. Such appeal must be made within twenty (20) days
of receipt in writing of the County's determination. The County shalt have twenty (20) days in which to
respond in writing to the appeal. The County's response shall be final and conclusive unless within thirty (30)
days from the date of receipt of such response the Contractor submits the dispute to a court of competent
jurisdiction or submits a demand for arbitration if required by the Contract Documents.
5. INTEGRATION AND MODIFICATION
A. This Contract constitutes the full and complete agreement of the parties and supersedes or incorporates any
prior written and oral agreements of the parties. In addition, the Contractor understands that unless the
contract is for goods or services of a value less than $25,000, no County official or employee, other than the
Board of County Commissioners acting as a body at a Board meeting, has authority to enter into a contract or
to modify the terms of this contract on behalf of the County. Any such contract or modification to this con-
tract must be in writing and be executed by the parties hereto.
B. With respect to change orders under the Contract, the County and the Contractor shall process and
approve/disapprove requests for change orders as otherwise provided in this Contract, subject to the
requirements of the Procurement Code and the Finance Office.
6. INDEMNITY
A. The Contractor (including, by definition here and hereinafter, its officials, employees, agents and representa-
tives, subcontractors and suppliers), shall and hereby does release, discharge, indemnify and hold harmless
the County of Pitkin and its officials, employees, agents and representatives from and against liability for any
claim, demand, loss, damages, penalty, judgment, expenses, costs (including costs of investigation and
defense), fees (including reasonable attorney and expert witness fees) or compensation in any form or kind
whatsoever for any bodily injury, death, personal injury or property damage arising out of or in connection
with any negligent act, intentional act, error or omission by the Contractor, and for any consequential liability
alleged to accrue against the County on account of the Contractor's acts, errors or omissions; provided, how-
ever, that such indemnity shall not be construed as an indemnity for bodily injury or property damage arising
from the sole negligence of the County or its employees.
B. The Contractor further shall investigate, process, respond to, adjust, provide defense for and defend, pay or
settle all claims, demands, or lawsuits related hereto at its sole expense and shall bear all other costs and ex-
penses related thereto, even if the claim, demand or lawsuit is groundless, false or fraudulent.
18
7. INSURANCE
A. In whole or in part, the Contractor shall secure and maintain for the term of its contractual relationship with
the County such insurance policies, from companies licensed in the State of Colorado, as will protect itself,
the County (with the County named as additional insured) and others as specified, from claims for bodily
injuries, death, personal injury or property damage, which may arise out of or result from the Contractor's
acts, errors or omissions. The following insurance coverage, at or above the limits indicated and including
such endorsements as are indicated by an "X", are required:
(1) Statutory Workers' Compensation: Colorado statutory minimums
(2) Commercial General Liability - ISO 1996 Form or equivalent
Each Occurrence Limit $1,000,000
General Aggregate Limit $2,000,000
Products-Comp/Op Aggregate Limit $2,000,000
Comprehensive Form (All risks) to include:
X Premises/Operations
Underground, Explosion & Collapse Hazard
X Products/Completed Operations
X Contractual Liability
Independent Contractors and Subcontractors
X Broad Form Property Damage
X Personal Injury
(3) Business Auto Coverage:
Combined Single Limit Liability (each accident) $1,000,000
Coverage to include:
X Any Auto
All Owned Autos
Hired Autos
Non -Owned Autos
_Garage Liability
$1,000,000
(4) Special Coverages (check as appropriate):
X (1) Performance Bond 100% of contract
Labor and Material
Payment Bond 100% of contract
_(2) Professional Errors and Omissions
_(3) Aircraft Liability
_(4) Owner's Protective
_(5) Builder's Risk amount of project
(6) Boiler and Machinery
(7) Loss of Use Insurance
(8) Pollution Liability
(9) Crime, including Employee Dishonesty Coverage, or Fidelity Bond
B. To provide evidence of the required insurance coverages, copies of Certificates of Insurance in a form
acceptable to the County shall be filed with the County (through the Project Manager) no later than ten (10)
calendar days prior to commencement of operations affecting the County. Failure to file or maintain accept-
able Certificates of Insurance with the County is agreed to be a material breach of any contract and grounds
for rescission or termination. These Certificates of Insurance shall contain a provision that coverage afforded
under the policies will not be canceled or materially altered unless at Least thirty (30) calendar days prior
written notice by certified mail, return receipt requested (effective upon proper mailing), has been sent to the
County (through the Project Manager). (For purposes of this provision, "materially altered" shall mean a
19
I I?
change affecting the coverage's required herein, including a change to policy limits as set out in the then -
current policy declarations page).
Simultaneously with the Certificates of Insurance, the Contractor shall file with the County (and promptly
update, as necessary) a certified statement as to claims pending against the required coverage's, reserves
established on account of such claims, defense costs expended and amounts remaining on policy limits.
C. In addition, these Certificates of Insurance shall contain the following clauses:
(1)
The clause "other insurance provisions," in a policy in which the County of Pitkin holds a Certificate,
shall not apply to the County of Pitkin.
(2) The insurance companies issuing the policy or policies hereunder shall have no recourse against the
County of Pitkin for payment of any premiums or for assessments under any form of policy.
(3)
Any and all deductibles in the above -described insurance policies shall be assumed by and be for the
amount of, and at the sole expense of the Contractor.
(4) Location of operations shall be: "all operations and locations at which work for the referenced Project
is being done."
D. Certificates of Insurance for all renewal policies shall be delivered to the Project Manager at least fifteen (15)
days prior to a policy's expiration date except for any policy expiring on the expiration date of this Agreement
or thereafter.
E. The County reserves the right to request and receive a copy of any policy and any policy endorsement.
8. EXEMPTIONS AND PREFERENCES
All purchases of construction or building or any other materials for any Contract shall not include Federal
Excise Taxes or Colorado State or local sales or use taxes. Pitkin County is exempt from such taxes under
registration numbers 98-02624 and 84-78000-5K.
B. Pursuant to state statute and to the extent permitted by law, Colorado labor shall be employed to perform the
work to the extent of not less than eighty percent (80%) of each type or class of labor employed on such
project; except for highway construction, which is subject to C.R.S. 43-2-208, which provides that all
laborers shall be bona fide residents of Colorado with a preference to residents of the County where the work
is performed.
C.
Preference is given, to the extent permitted by law, to: materials, supplies and provisions produced,
manufactured or grown in Colorado, quality being at least equal to materials, supplies and provisions from
outside the state; and to local (Roaring Fork Valley) services and labor of quality at least equal to non -local
services and labor.
9. RECORDS
The Contractor shall maintain comprehensive, complete and accurate books, records, and documents
conceming its performance relating to this Project for a period of three (3) years after final payment on the
Project and the County shall have the right within the three-year period to inspect and audit these books,
records and documents, upon demand, in a reasonable manner and at reasonable times, for the purpose of
determining, by accepted accounting and auditing standards, compliance with all provisions of the Contract
and applicable law.
20
10. SUCCESSORS AND ASSIGNS
This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the County
and the Contractor respectively and their agents, representatives, employees, successors, assigns and legal
representatives. Neither the County nor the Contractor shall have the right to assign or transfer its interest or
obligations hereunder without the written consent of the other party, which consent shall not be unreasonably
withheld.
11. THIRD PARTIES
This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or
parties, except to parties to whom Contractor or County may assign this Agreement in accordance with the
specific written permission, any rights to claim damages or to bring any suit, action or other proceeding
against either the County or Contractor because of any breach hereof or because of any of the terms,
covenants, agreements or conditions herein contained.
12. AGREEMENT MADE IN COLORADO
The parties agree that this Agreement was made in accordance with the laws of the State of Colorado and
shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado.
13. ATTORNEY'S FEES
In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing
party shall be entitled to its costs and reasonable attomey's fees.
14. NOTICES
Unless otherwise provided in the Contract Documents, all notices under the Agreement shall be sent certified
mail, return receipt requested, and shall be effective upon receipt or three (3) business days after mailing,
whichever is first.
15. Year 2000 Issues
Contractor hereby releases and holds Pitkin County harmless from any and all claims and causes
of action relating to performance of this Agreement of' any nature whatsoever in tort, contract, or
otherwise, for any action, inaction or for any loss or damage attributable to, resulting from,
arising out of or in connection with a year 2000 error.
16. Governmental Immunity
Contractor agrees and understands that Pitkin County is relying on and does not waive, by any provision
of this Agreement, the monetary limitations or terms (presently S 150,000.00 per person and $600,000 per
occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental
Immunity Act, 24-10-101, et. sec., C.R.S., as from time to time amended, or otherwise available to Pitkin
County or any of its officers, agents or employees. Further, nothing in these Required Clause or any other
Contract Document shall be construed or interpreted to require or provide for indemnification of the
Contractor by the County for any injury to any person or any property damage whatsoever which is caused by
the negligence or other misconduct of the County or its agent or employees.
21
17. Current Year Obligations
The parties acknowledge and agree that any payments provided for hereunder or requirements
for future appropriations shall constitute only currently budgeted expenditures of Pitkin County.
Pitkin County's obligations under this Agreement are subject to Pitkin County's annual right to
budget and appropriate the sums necessary to provide the services set forth herein. No
provisions of this agreement shall constitute a mandatory charge or requirement in any ensuing
fiscal year beyond the then current fiscal year of Pitkin County. No provision of this agreement
shall be construed or interpreted as creating a multiple -fiscal year direct or indirect debt or other
financial obligation of Pitkin County within the meaning of any constitutional or statutory debt
limitation. This agreement shall not directly or indirectly obligate Pitkin County to make any
payments beyond those appropriated for Pitkin County's then current fiscal year. No provisions
of this agreement shall be construed to pledge or create a lien on any class or source of Pitkin
County's moneys, nor shall any provision of this agreement restrict the future issuance of Pitkin
County's bonds or any obligations payable from any class or source of Pitkin County's money.
22
EXHIBIT "A"
0
PITKIN COUNTY AIRPORT INTERNET ACCESS SERVICES
SOPRIS WEB SOLUTIONS
EXHIBIT B
DESCRIPTION OF SERVICES TO BE PROVIDED BY SOPRIS WEB
SOLUTIONS:
• We will provide four (4) PC workstations in the airport waiting area (2 near the
vending machines, 2 in the secured area). We will purchase, maintain, and retain
ownership of the computers and peripherals.
• These computers will utilize credit card readers to meter usage. The computers would
allow browsing the interne, checking e-mail, etc. The computers will bill in quarter-
hour increments (an industry standard).
• AT least two of the workstations will include the ability to plug in the passenger's
own laptop computers and use our service from their computer.
• If there is sufficient demand, we can add additional stations upon agreement with the
airport.
• If there is sufficient demand, we can add additional services, such as office software
and games.
OTHER COMMITMENTS:
• We will post our terms of service at each workstation, including the name of the
business and information to contact us by e-mail. post office box, or a 1-800
messaging service with their comments, questions, or request for refunds.
• The workstations will be configured to remain on during the airport's business hours.
• The workstations will be attached to battery backup/surge protection devices.
• Our web site's home page will include hyperlinks to each major air carrier, to a major
weather service, to the FIDS vendor's web site, and to the airport's own home page.
• We may present modest advertising on our web site. However, we will not affix any
advertisements to the workstations themselves, aside from the contact information
and brief description for our company.
• We will continuously monitor the status of the network remotely, using software that
will page us in the event of a service failure. In the event of a failure of our system,
we will make every effort to attend to it immediately. In any case, we will commence
corrective action within seventy-two (72) hours of notification.
• In the event that the airport contact us with a request/inquiry, we will make every
effort to respond immediately. In any case we will respond within seventy-two (72)
hours.
• We will perform network diagnostics and maintenance at least once a month to ensure
the health of the network.
• We will perform an on -site inspection of the facility at least once every two weeks.
We will perform any necessary cleaning and maintenance. These workstations should
not present any maintenance requirements for the airport. During the "off-season",
this schedule may be reduced to once per month if conditions warrant.
23
• We will carry one million dollars in business liability coverage; we will also carry
adequate property coverage to replace all necessary equipment.
• In the event that usage is insufficient, we may remove some workstations, upon
agreement with the airport.
• We will purchase and oversee the construction of the workstations based on drawings
and location selections mutually agreed upon. The workstations will become
leasehold improvements and the property to the airport.
• We will purchase and oversee the installation of terminations on the existing CATS
cable recently provided for this service. This work will become a leasehold
improvement and the property of the airport.
• We will provide and maintain the necessary hubs and routers in -line from the splitting
device to our workstations. These devices will remain our property.
• We will purchase a chair for each workstation of a simple "school room" design.
These chairs will be dedicated to the workstations and are an important feature of our
service. The chairs will be affixed a small sign requesting that they remain in place.
• We will make usage statistics available to the County as requested, which will show
the date, time, and duration of usage.
OTHER ITEM(S):
• In the event that Sopris Web Solutions changes its trade name, dba, or corporate
structure (e.g. to a LLC or a corporation), then the agreement will remain in effect
with the new entity. Sopris Web Solutions will provide the airport with adequate
legal documentation of the change.
• Upon execution of this document, we will begin ordering equipment and overseeing
the necessary construction/installation work. Our goal is to achieve partial operations
within two -three weeks and full operations within thirty days. This timetable will be
dependent upon external vendors for computers, credit card processing facilities,
cable termination installation, and carpentry.
COMMITMENTS BY THE COUNTY:
• The County will provide a DSL line and internet access account, which we will share
with the airport FIDS by the means of a signal splitting device, in -line before the
respective servers.
• The County will be responsible for maintenance of the DSL line and all building
cabling up to the wall jacks.
• Each workstation will be provided with one plug, plus one additional plug for the
server. The server will most likely be located near the FIDS server.
• The County will provide the access to the phone and server closets and the secured
boarding area, as needed.
• The County will not offer or allow competing internet access services on the airport
premises.
24