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HomeMy WebLinkAboutbocc.ord.010.1998AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, APPROVING A LEASE AND USE AGREEMENT FOR THE AIRPORT "SKYCAP" AND BAGGAGE HANDLING SERVICES WITH PITKIN PORTAGE, INC. FOR A TWO (2) YEAR TERM AT THE ASPEN/PITKIN COUNTY AIRPORT; AND SETTING A PUBLIC HEARING THEREON. ORDINANCE # SERIES OF 1998 RECITALS 1. Pitkin County, Colorado ("County"), is a home -rule county organized under the Constitution and statutes of the State of Colorado and the Pitkin County Home Rule Charter; and 2. The County is the owner, operator and sponsor (for federal funding purposes) of the Aspen/Pitkin County Airport ("Airport"), which is located in Pitkin County near Aspen, Colorado; and 3. The County, with respect to the Airport and pursuant to, inter alia, Sections 41-4-101 et seq. and 29-3-101 et seq., C.R.S. 1973, as amended, and Sections 2.8.2 and 8.7 of the Pitkin County Home Rule Charter, as amended, has the authority to lease, license and permit the occupancy and use of Airport land areas, buildings and facilities and to establish the terms, conditions, fees and charges for such occupancy and use; and 4. The County has received a request from Pitkin Portage, Inc. to provide baggage and "skycap" services to the Airlines and the general public at the Airport; and 5. That the License and Use Agreement between Pitkin County and Pitkin Portage, Inc. shall be non-exclusive in nature; and 6. The County has determined that Pitkin Portage, Inc. is not in default for fees to the County, and has been a satisfactory performer under the terms of the previous agreement, which expired on September 30, 1997. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO: Section 1. Approval and Adoption. That the Lease and Use Agreement for Airport "Skycap" and Baggage Handling Services with Pitkin Portage, Inc., 1997 - 1999, which is attached hereto as Exhibit "A" and incorporated herein by this reference, is hereby approved and adopted. Section 2. Authority to Execute. That the Chair (or Vice -Chair) of the Board of County Commissioners is hereby authorized and directed to execute, on behalf of the County, this Ordinance, the Lease and Use Agreement that is the Exhibit hereto, and such other and further documents as may be reasonably required to complete the transactions described or neces. arily implied herein, which other documents have been approved as1•to form by the County Manager and the County Attorney. Section 3. Copies for Public Inspection. That true and correct copies of this Agreement shall be available for public inspection between the date of first reading and the public hearing thereon during County business hours in the office of the Director of Aviation at the Aspen/Pitkin County Airport (970) 920-5384. Section 4. Public Hearing. That a public hearing on this Resolution shall be held at 2:00p.m., local time, or as soon thereafter as the conduct of business will allow, on January 14, 1998 in a location identified by a notice in the Pitkin County Courthouse, Aspen, Colorado. Section 5. Publication. That this Ordinance shall be published prior to and after adoption in full, but without exhibits. INTRODUCED, FIRST READ AND SET FOR PUBLIC HEARING AT THE REGULAR MEETING ON THE 17th DAY OF December , 199T. NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE 2nd DAY OF January , 1998. APPROV5 ND ADOPTED, ER SECOND READING AND PUBLIC HEARING ON THE /7 `. DAY OF i /t i( , 1991. PUBLISHED AFTER AD P r�s '. I -` T ff ASPEN TIMES WEEKLY ON THE DAY OF , 1997. 2 BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO Chair Dorothea Farris (date) RECOMMENDED FOR APPROVAL: Scott Smith, A.A.E. Director of Aviation MANAGER APPROVAL: Suza Konclan Count Manager ADMINISTRATIVE APPROVAL: /egig-e- 641,1Lyt Tom Oken Director of Admin. Services AT, E S I Jefette Jone : (date) De.. ty Clerk Recorder APPROVED AS TO FORM: John Ely, Esq. di/TX County Attorney Gar Esa' Es Ai port S•-cialounsel C:\WPWIN60\WPDOCS\SUE\CONTRACT\LANDSIDE\PITPORT.ORD 3 LICENSE AND USE AGREEMENT AIRPORT "SKYCAP" AND BAGGAGE HANDLING SERVICES PITKIN PORTAGE, INC. 1997 - 1999 THIS LICENSE AND USE AGREEMENT made as of the date last below signed, is by and between the Board of County Commissioners of Pitkin County, Colorado, a Colorado home -rule county ("County") and Pitkin Portage, Inc., A Colorado Corporation ("Licensee"): A. RECITALS 1. The County is the owner, sponsor, and operator of the Aspen/Pitkin County Airport (Sardy Field), located in Pitkin County in the vicinity of Aspen, Colorado (hereinafter the "Airport"), at which it has made available certain public airfield aviation terminal and facilities, certain areas for public use, certain areas for exclusive and non-exclusive commercial use subject to permit and certain reserved areas; and 2. The County has the authority to operate and manage the Airport, to regulate commercial activities at the Airport and to lease and license space thereon, pursuant to, inter alia, C.R.S. 30-11-107, 30-35-201/202, 41-4- 101 et seq., as amended, Title IV of the Pitkin County Code, as amended, and Section 8.7 of the Pitkin County Home Rule Charter; and 3. Licensee is in the business of providing baggage handling and "skycap" service to airline passengers at the Airport, in which service and business it desires to occupy and use some of the space and facilities of the Airport for commercial purposes; NOW THEREFORE, for and in consideration of the mutual covenants, terms and conditions contained herein, the County and Licensee do mutually undertake and agree as follows: B. GRANTING OF LICENSE. 1. The County grants to Licensee, during the term of this License, the non-exclusive right to operate within the Airport public terminal building and in the i:'mediate vicinity thereto (outside the FAA security perimeter), a baggage service operation, the services of which shall be available to any public commercial airline operator and/or its passengers doing business at the Airport public terminal building and allowing any of the permitted services by the Licensee, according to the terms and conditions set forth herein. 2. The County also grants the rights of ingress and egress to the Location and the right to use the public areas of the terminal, so long as such rights do not interfere with the rights of other lessees, licensees or permittees of the terminal, the traveling public or the safe and efficient operation of the terminal. C TERM The term of this License shall commence on the 1st day of expire on the 30th day of September , 1922. D PERMITTED SERVICES. The Licensee may maintain in operation the following services: October , 1927 and shall -1- 1. Baggage Porter Services, sometimes know as "skycap" services, may be furnished to any airline or airline passenger agreeing to allow or contracting for the service from the Licensee, which service shall be provided as the Licensee agrees and as directed by the airline for purpose of transporting baggage of the airlines' customers and facilitating other porter -type services to the public using the Airport, all within and in the vicinity of the public terminal building at the Airport. 2. Baggage Storage and Delivery Service may be furnished to any or all airlines agreeing to allow and /or contracting for the service, which service shall be provided for such baggage storage services as the Licensee agrees to provide and as directed by the airline and the delivery of baggage to its passengers. In addition, the Licensee shall be permitted to negotiate and contract with individual passengers of the respective airlines occupying the Air Terminal at the Airport at fair and reasonable rates for the storage and/or delivery of baggage and other items of personal property to such passengers off the Airport premises; provided, however, in no event shall a charge for such delivery be made to both the airline and passenger (unless a shared charge is disclosed in advance to both parties), and provided further that no such delivery service be provided or made which infringes upon any authority under Certificate of Public Convenience and Necessity issued by the Colorado Public Utilities Commission. E. CHARACTER OF OPERATION. The permitted services shall be provided with the following limitations: 1. The Licensee agrees to conduct the operations herein permitted for the accommodation of the public using the Airport and without interfering with the lawful use of Airport property by other lessees, licensees, permittees, and invitees. 2. The Licensee shall employ , train and supervise an adequate number of workers to properly conduct the operations herein described. Workers shall be uniformed in a neat and clean fashion and in accordance with the functions being performed. Such uniforms shall be as approved by the Director of Aviation. No hawking, loud noise, offensive display or personal solicitation shall be permitted. Employees/subcontractors of the Licensee shall be courteous and polite and under no circumstances importune passengers in offering their porter services, solicit gratuities (except as set forth below), or comment on a traveler's exercise of his/her right to offer no gratuity. Licensee employees/subcontractors shall receive formal training in public relations and conflict resolution at least annually. The County reserved the right to insist that the Licensee dismiss any of its employees/subcontractors where there exists evid: ace of misconduct in the performance of duties under the letter and spirit of this agreement. Employees/subcontractors of the Licensee will not under any circumstances deliver baggage to any vehicle parked in a no parking zone, unless such delivery is with the express consent of the County Regulation Enforcement Officer on duty at that time. 3. Except for deliveries of stored, delayed or lost baggage items of personal property from the Airport to its customers off of the Airport premises, permitted under paragraph D2 above, no rates and/or charges for the services performed shall be charged to the public by the Licensee, although gratuities may be accepted. The Licensee may negotiate with a group of five (5) or more persons for porter service gratuities. 4. The Licensee shall be required to provide the services contemplated under this Agreement on a daily basis from the weekend before Thanksgiving until May 1 of each year of the Agreement, and from June lst until October lst of each year of this Agreement; during such periods the Licensee may be requested to provide said services at any time the Airport Terminal shall be open. The Licensee shall, at its reasonable discretion according to market demand, provide such services during the spring and fall off-seasons, and the same shall be performed in conformity with the required standards of operation as contained herein. 5. The Licensee or its employees/subcontractors may offer information as to modes and schedules of ground transportation available to the public, but shall not make recommendations nor offer unsolicited information as to rates charged by the respective ground transportation entities operating at the Airport or, under -2- any circumstances, make any comment solicited or unsolicited, respecting the quality of public or private ground transportation or of any entity engaged therein. 6. All equipment owned by or used in the operation shall, when not in use, be maintained out of the traffic ways, and all equipment owned by the Licensee shall be kept in good repair and well enough padded so as not to cause damage to the Air Terminal building or injury to persons in and around the building. All operations by the Licensee shall be conducted in such a manner so as to keep the traffic ways at the Airport open, unobstructed, passable, clean and safe. 7. No advertising matter shall be posted upon Airport premises unless specifically authorized in writing by the Director of Aviation. 8. All trash or debris which may be accumulated in the performance of the operations hereunder shall be deposited in trash receptacles provided by the County, in a timely fashion. 9. The Licensee shall not offer for sale any type of merchandise or service or engage in any commercial activity not specifically permitted herein. 10. The Licensee further agrees not to use any part of the Airport for other unlawful purposes whatsoever and agrees not to commit or permit any nuisance from or upon the Airport. F. COMPENSATION. As compensation to County, Licensee shall pay to County the sum of three thousand, nine -hundred fifteen dollars ($3,915.00) for the first year covered by this License and Use Agreement (October 1, 1997 to September 30, 1998) in four equal, quarterly installments which are paid in arrears of nine -hundred seventy-eight dollars and seventy-five cents ($978.75) per calendar quarter, and will be billed by County to Licencee on the following dates: December 1, March 1, June 1, and September 1. Payments are due by the 20th day of the billing month, and will be considered late if payment is received after the 30th day of the billing month. For the second calendar year covered by this Agreement (October 1, 1998 to September 30, 1999), the compensation hereunder shall be increased by an amount equal to the percentage increase of the U.S. Consumer Price Index (CPI, Urban, All -Items), compounded annually. G PAYMENTS. All payments shall be considered delinquent if not received by the day due in the office of the Director of Aviation, 0233 E. Airport Road, Suite A, Aspen, CO 81611. If the day due is Saturday, Sunday or legal holiday, the payment shall be due on the next previous business day. All delinquent payments shall accrue default interest on any unpaid and delinquent balance on the first day of every month so delinquent at the rate of two percent (2%) on the unpaid balance, compounded monthly; late charges and interest shall be due and payable without demand. H. PERFORMANCE AND PAYMENT SECURITY. Promptly after execution of this Agreement and prior to actual occupancy and use of the Premises, Lessee shall deliver to County (and thereafter maintain current for the entire term of this Agreement), certain deposits or instruments, as security for the full and timely performance and payment by Lessee of all of its obligations hereunder, including without limitation, the payment of rent as follows: 1. Types of Security. Lessee shall deliver a cash Security Deposit of $978.75. It is expressly agreed that such amounts are not an advance payment of rental or measure of Lessor's damages in case of default by Lessee. Lessor shall have the right to commingle any cash amounts received hereunder with its other funds. -3- 2. County Use of Required Security. If at any time during the Term hereof, any of the rent shall be overdue and unpaid, or any other sum payable by Lessee to Lessor hereunder shall be overdue and unpaid, the Lessor may, at its option, and upon Notice to Lessee, appropriate and apply any portion of the Security Deposit and Performance and Payment Surety to the payment of any such overdue amount. In the event of the failure of Lessee to keep and perform any of the terms, covenants and conditions of this Lease, the Lessor may, at its option and upon Notice to Lessee (and its surety, if applicable) appropriate and apply the Security deposit and Performance and Payment Surety, or so much thereof as may be necessary, to compensate Lessor for advances, expenses, loss or damage sustained or suffered by Lessor due to such breach on the part of the Lessee. Should the Security Deposit and Performance and Payment Surety or any portion thereof be appropriated and applied by Lessor for the payment of overdue rental or other sums due and payable by Lessee hereunder, or for a breach on the part of Lessee, the Lessee shall, within five (5) days after the written demand of Lessor, forthwith remit to Lessee a sufficient amount in cash to restore the Security Deposit and Performance and Payment Surety to the original sum deposited or required. 3. County Return/Release of Required Surety. No later than sixty (60) days after the expiration or termination of this Lease, Lessor shall: if Lessee has complied with all of the terms, covenants and conditions of this Lease and has paid all of the rental herein provided for, and all other sums payable to Lessee to lessee hereunder, then return the Security Deposit and/or release the surety; or if Lessee has not complied with such obligations, provide written notice to Lessee and/or its surety of Lessor's claims against said amounts and return/release the remainder. 4. Requirements Waived. These requirements may be waived in writing by the County, in its sole discretion, for a Lessee with a satisfactory payment or performance history; provided. however, that if the Airport issues a Notice of Non -Compliance or Notice of Default involving one or more failures to timely pay any rent or charges hereunder, it may, as part of that Notice, as a material element of this Lease, require either the Security Deposit or this surety instrument or both to be delivered promptly as part of any cure of such Notice. I. QUALITY OF SERVICE/COMPLAINT RESOLUTION/PERFORMANCE REVIEW BY COUNTY. 1. The Licensee shall conduct its commercial operation hereunder in a manner consistent with the standards of first-class skycap and baggage storage and delivery services at airports throughout the United States. 2. Licensee acknowledges that the County has an interest in resolving any complaints arising from the Licensee's operations, both as owner/operator of the Airport and as holder of police power and land -use authority within the County. Based on the foregoing, in the event that County shall receive any complaint arising from Licensee's operations, County shall immediately transmit such complaint to Licensee for resolution. Within five (5) business days of the receipt of the complaint, Licensee shall provide to the Airport Management a written report of the complaint and its resolution or of Licensee's attempts at resolution. Failure by Licensee to resolve a great majority of any complaints to the satisfaction of the Director of Aviation shall be grounds for termination of this Agreement. 3. At least once annually hereunder, Licensee shall be entitled, at its request, to a written evaluation of its performance under this Agreement from the Director of Aviation. This report shall contain specific areas in which performance has been unsatisfactory and specific standards for satisfactory performance. J. CANCELLATION AND TERMINATION. In the event that Licensee shall fail to perform, keep and observe any of the terms, covenants or conditions herein contained, on its part to be performed, the County may give the Licensee written notice to correct such condition or cure such default and, if any such condition or default shall continue for ten (10) days (three (3) days for nonpayment of fees and charges, failure to maintain required insurance or maintenance of an hazardous or dangerous condition) after notice of such default has been sent by County to the Licensee, pursuant -4- to Section I, below, the County may, after the lapse of said period if such condition or default has not been completely cured or corrected, terminate this License and Use Agreement by ten (10) days' written notice. In the event the Licensee has undertaken action to correct such condition or cure such default, and if, in the reasonable discretion of the County, the same can be cured within a reasonable time and the cure is proceeding expeditiously and continuously, the Agreement shall not be canceled (except for nonpayment of fees or charges, failure to maintain required insurance or maintenance of a hazardous or dangerous condition, which defaults must be fully cured to avoid cancellation). Any cure or correction procedures not completed within the time periods herein specified, shall only be done pursuant to written Agreement between Licensee and County, which Agreement shall contain specific time limitations; if those cure time limitations are not met, no further cancellation notice hereunder shall be required. The Licensee may cancel this Agreement, and terminate its obligations (except those accrued prior to the date of termination) hereunder at any time, by thirty (30) days' written notice, upon or after the happening of any one of the following events: 1. Issuance by any court of competent jurisdiction of a permanent injunction in any way preventing or restraining the use of said Airport for purposes that would prevent all of the Licensee's operations; 2. The breach by the County of any of the covenants or agreements contained herein and the failure of the County to remedy such breach for a period of thirty (30) days after receipt of said written notice of the existence of such breach (in the event the County has undertaken actions to correct such condition or cure such default, the same can be cured and is proceeding expeditiously with the same, the Agreement shall not be canceled); 3. The inability of the Licensee to use the public airfield facilities continuing for a longer period that sixty (60) days due to earthquake or other casualty, or the total subordination of the rights to the public airfield. K. NOTICES. All Notices required or authorized to be given hereunder shall be in writing and shall be served upon the party entitled thereto either by certified mail, return receipt requested, addressed to such party at its address appearing on the signature page of this Agreement (or at such other address as either party gives Notice to the ether party in writing), or by personal service as provided for service cf process in Rule 4, Colorado Rules of Civic Procedure, as amended. Any such Notice shall be deemed to have been received two (2) business days after the same has been properly deposited in the United States mail, with postage thereon fully prepaid, as aforesaid, or on the date of personal service. L. COMPLIANCE WITH ALL LAWS AND REGULATIONS. The Licensee agrees not to use or permit the rights herein granted to be used for any purpose prohibited by the laws of the United States or the State of Colorado, the Resolutions of the County of Pitkin, including Airport Rules and regulations, or not authorized hereunder or in accordance herewith, and it further agrees that it will use the premises herein described in accordance with the rules and regulations adopted by the County for the management, operation and control of the Airport, either promulgated by the County or by the Director of Aviation on its own initiative or by or in compliance with regulations or actions of any Federal Agency authorized to regulate the Airport. The Licensee further agrees to submit any report or reports or information regarding its operations hereunder that the County or the Director of Aviation requests. M. TAXES. LICENSES. -5- The Licensee covenants and agrees to 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 of its equipment, and further agrees not to permit any of said taxes, excises or license fees to become delinquent. N. INDEMNITY AND INSURANCE 1. As further consideration hereunder, the Licensee, for itself and for its official, agents, employees/subcontractors, contractors and subcontractors, shall release, discharge, indemnify and hold harmless the County of Pitkin and its officials, employees/subcontractors, 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 Licensee (including, by definition, its officials, employees/subcontractors, agents, contractors and subcontractors) 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/subcontractors. 2. The Licensee 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 expenses related thereto, even if the claim, demand or lawsuit is groundless, false or fraudulent. 3. To fund this indemnity, in whole or in part, the Licensee shall secure and maintain for the term of its contractual relationship to 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 acts. errors or omissions. The minimum insurance requirements prescribed herein shall not be deemed to in any way limit the obligations of the Licensee hereunder. The following insurance coverage, at or above the limits indicated and including such endorsements as are indicated by an "X", are required: (1) Statutory Worker's Compensation: CO statutory minimums (2) Commercial General Liability: Policy Limits: Bodily Injury/Property Damage Combined Single Limit of $1.000.000 Deductible no greater than $1.000 Endorsements (check as appropriate): Comprehensive Form _X Premises/Operations _X Broad Form Blanket Contractual _X (Hold Harmless Coverage) Independent Contractors and Subcontractors _X Broad Form Property Damage _X Personal Injury, w/ Employment exclusion deleted X (3) Comprehensive Motor Vehicle Liability Insurance: Policy Limits: Bodily Injury/Each Person Bodily Injury/Each Occurrence $500.000 $1.000.000 -6- Property Damage/Each Accident $500.000 Property Damage/Aggregate $1.000.000 Endorsements (check as appropriate): Any Auto _X All Owned Autos Hired Autos Non -owned Autos Garage Liability 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 Airport Management) no later than ten (10) calendar days prior to commencement of operations hereunder affecting the County. In the event a binder is delivered, it shall be replaced within thirty (30) days (or sooner if the binder should expire sooner) by a conforming Certificate 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 has been provided to the County (through the Director of Aviation); such notice shall be sent by certified mail, return receipt requested, and the thirty (30) day period shall commence on the date of such mailing. 5. In addition, these Certificates of Insurance shall contain the following clauses: a. The clause "other insurance provisions," in a policy in which the County of Pitkin is names as insured, shall not apply to the County of Pitkin; b. 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; c. Any and all deductibles in the above -described insurance policy shall be assumed by and be for the amount of, and at the sole risk of the Licensee. d. Location of operations shall be: "The Aspen/Pitkin County Airport Public Terminal area and all other operations and locations permitted by Agreement with Pitkin County." 6. Certificates of Insurance for all renewal policies shall be delivered to the Office of 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 this Agreement or thereafter. O. PROPOSED COUNTY TRAFFIC CIRCULATION SYSTEM/TERMINAL REMODEL/AIRPORT MASTER PLAN. The Licensee hereby agrees to cooperate in Airport planning, implementation, construction and revised operation, all of which may affect the Licensee's operations hereunder, and hereby waives, discharges and releases the County from any claim or damages arising from changes to the layout and operation of the Airport caused by such and other Airport planning, implementation, construction or revised operation. P. NO WAIVER. No waiver of default by the County of any of the terms, covenants or conditions hereof to be performed, kept and observed by the Licensee shall be construed as, or operate as, a waiver by the County of any subsequent default of any of the terms, covenants or conditions herein contained to be performed, kept and observed by the Licensee. Q. PREVENTION OF LIENS. -7- The Licensee covenants and agrees not to permit any mechanic's or materialmen's or any other lien to become attached or to be foreclosed upon the Air Terminal, any of the equipment mentioned herein or improvements thereto or thereon, by reason of any work or labor performed or materials furnished by any mechanic or materialman. The Licensee agrees to furnish the Director of Aviation, upon request, duplicate receipts or other satisfactory evidence showing the prompt payment by it of any required Social Security, Unemployment Compensation and Worker's Compensation Insurance, all required licenses and all taxes. The Licensee further covenants and agrees to pay promptly when due all bills, debts and obligations incurred by it in connection with its operation of said business on the Airport, and not to permit the same to become delinquent and to suffer no lien, mortgage, judgment or execution to be filed against said equipment which will in any way impair the rights of the County under this Agreement. R. AGREEMENT SUBORDINATE TO AGREEMENTS WITH THE UNITED STATES. This Agreement is subject and subordinate to the terms, reservations, restrictions and conditions of any existing or future agreement between the County and the United States relative to the operation or maintenance of the Airport, the execution of which has been or may be required as a condition precedent of the expenditure of Federal funds for the development of said Airport. S. NO DISCRIMINATION - F.A A. DIRECTIVES. The parties hereto covenant and agree that: 1. No person on the grounds of race, color or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subject to discrimination in the use of said facilities; 2. That in the construction of any improvements on, over, or under such land 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 subject to discrimination; 3. That the parties shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, part 21 - Nondiscrimination in Federally -assisted programs of the Department of Transportation & Effectuation of Title IV of the Civil Rights Act of 1964, and as said regulations may be amended. The Licensee 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 on these grounds from participating in or receiving the services or benefits of any program or activity covered by this subpart. The Licensee assures that it will require that its covered suborganizations provide assurances to the County 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. This Agreement is subject to the requirements of the U.S. Department of Transportation's regulations, 49 CFR. Part 26, Subpart G. The concessionaire or contractor 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 or any concession agreement, management contract, or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR, Part 26, Subpart G. The concessionaire or contractor agrees to include the above statements in any subsequent concession agreement or contract covered by 49 CFR, Part 26, Subpart G, that enters and cause those businesses to similarly include the statements in further agreements. T. PATENTS AND TRADEMARKS. -8- The Licensee represents that it is the owner of or fully authorized to use any and all services, processes, machines, articles, marks, names or slogans used by it in its operations under or in any way connected with this Agreement. The Licensee agrees to save and hold the County, its officers, employees/subcontractors, agents and representatives free and harmless of and from any loss, liability, cost, expense, suit 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 operations of the Licensee under or in any way connected with this Agreement. U. ASSIGNMENT. The 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, that Licensee shall be required to provide evidence satisfactory to County of the successful business experience and financial stability of Assignee/Transferee, 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." For purposes of this provision, transfer of majority control of the stock of the Licensee shall be considered an assignment of rights hereunder. V. AGREEMENT BINDING, hereto. This Agreement shall be binding on and extend to the successors and assigns of the respective parties W. 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. X. PARAGRAPH HEADINGS. Paragraph headings contained herein are for convenience in reference only and are not intended to define or limit the scope of any provisions of this Agreement. Y. AGREEMENT MADE IN COLORADO. This Agreement shall be deemed to have been made in and construed in accordance with the laws of the State of Colorado and venue is agreed to be exclusively in the Courts in and for Pitkin County, Colorado. Z. NO PERSONAL LIABILITY. No officer, elected official or employee of the County shall be held personally liable under this Agreement or because of its execution or attempted execution. AA. WAIVER OF PRESUMPTION -9- This Agreement was negotiated, drafted and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of this Agreement. BB. INTEGRATION AND MODIFICATION. This Agreement 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 Licensee understands that no County official or employee, other than the Board of County Commissioners acting as a body at a duly -noticed public 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 Contract must be in writing and be executed by the parties hereto. CC. 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. DD. RELATIONSHIP OF PARTIES. The Licensee represents that it is the exclusive agent for United Express to provide baggage -handling services to the Airline and its passengers and will remain so during the term of this Agreement. Complete, correct and current copies of all agreements between Pitkin Portage and United Express will be provided by the Company to the Director of Aviation and updated as necessary during the term of this Agreement. This Agreement covers use by the Company of "common areas" of the Terminal; the County acknowledges that the Company also has rights through United Express in the exclusive, preferential or shared exclusive areas of United Express, as those agreements may provide. Licensee may contract to be the exclusive agent of other qualified Airlines to provide similar services, but only upon the prior express written consent of County, which consent shall not be unreasonably withheld. The Licensee acknowledges that it did not participate in a competitive selection process to gain rights under this Agreement to conduct commercial activities on the Airport. The Licensee acknowledges the rights reserved by the County hereunder. EE. COUNTY RESERVATION OF RIGHTS,. The County reserved the right to grant such other Airport leases, licenses, permits, and/or concessions that it deems, in the exercise of its discretion, may be necessary or desirable to the efficient or economical operations of the Airport, including, especially, such other rights to provide baggage porter (skycap) and Airline baggage -handling services. The County also reserves the right, at its sole discretion, to cancel and terminate this Agreement, if and when it determines that it is necessary or desirable in the public interest to conduct a competitive procurement process concerning the provision of baggage porter (skycap) and Airline baggage service at the Airport for any reason including, without limitation, to restructure the contractual relationships of the parties or to expose such service to competition. Notice of Cancellation/Termination for the purposes of competitive procurement shall be given to the Company no less than thirty (30) days in advance of the date of the cancellation/termination; provided however, that if Airport management determines, in its sole discretion, that such cancellation/termination would disrupt service to the public during a high tourist season, the procurement may be deferred until the end of that season. -10- RECOMMENDED FOR APPROVAL: 1-c/e 2.1i114o ounty Manager Date I Scott Smith, Director of Aviation Date APPROVED AS TO FORM: //7b(? County Attorney Date Hilary Smith, Risk Manager Date APPROVED AS TO BUDGET: /a--17-Q7 Tom Oken, Admin. Services Director Date -11- IN WITNESS WHEREOF, the Parties have executed this Agreement as follows: COUNTY LICENSEE The Board of County Commissioners Pitkin Portage, Inc. of Pitkin County, Colorado ?re—L4.e,, Bat T tife; Chairman D2o v-ve'r -erx.E0. 61 e ✓vexr ,,,,; 6 t' President Date Date TTES : / ATTEST: P. County Clerk / Corporate Secretary/Seal County's Address: Director of Aviation 0233 E. Airport Rd., Suite A Aspen, CO 81611 cc: County Manager 506 E. Main Street Aspen. CO 81611 msoffice\winword\sue\contracts\landside\pitporta\97-99con. doc Licensee's Address: For receipt of mailed notices hereunder: Pitkin Portage. Inc. p.O. Box 9380 Aspen. CO 81612 -12- IN WITNESS WHEREOF, the Parties have executed this Agreement as follows: COUNTY LICENSEE The Board of County Commissioners Pitkin Portage, Inc. of Pitkin County, Colorado (r2P,4 t.) 0v 5 B i 111tirte-C}rairmnn �� T r Date ATTEST: /t/L e0,4,212,n President to ATTEST: 1998 ak-gszt Pitkin County Clerk orporate Secretary/Seal County's Address: Director of Aviation 0233 E. Airport Rd., Suite A Aspen, CO 81611 cc: County Manager 506 E. Main Street Aspen. CO 81611 msottice\winward\sue\contracts\landside\pitporta\97 99con.doc Licensee's Address: For receipt of mailed notices hereunder: Pitkin Portage. Inc P.O. Box 9380 Aspen, CO 81612