HomeMy WebLinkAboutbocc.ord.014.1999AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
APPROVING A LICENSE AND USE AGREEMENT
FOR THE AIRPORT PAID PARKING FACILITIES
BETWEEN AMPCO SYSTEM PARKING
AND THE ASPEN/PITKIN COUNTY AIRPORT
MAY 1, 1999 TO APRIL 30, 2002.
Ordinance # `,9- / Cj, Series of 1999
RECITALS
1. Pitkin County, a Colorado home -rule county, is the owner, sponsor and operator of the Aspen/Pitkin County Airport (Sardy
Field), located in the vicinity of Aspen, Colorado, and has the authority to regulate commercial activities and to lease and
license space at the Airport. Pursuant to, inter alia, 1973 C.R.S. 41-4-101 et seq., 30-35-202, Title IV of the Pitkin County
Code, and Section 8.7 of the Pitkin County Home Rule Charter; and
2. The Aspen/Pitkin County Airport has conducted a competitive procurement process for the selection of an operator of the
airport's paid parking facilities; and
3. AMPCO System Parking was selected as the top -ranked proposer; and
4. AMPCO System Parking is qualified to use the airport paid parking facilities at the commercial airline terminal to provide
paid parking services to users of the airport.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,
COLORADO, THAT:
Section 1. Approval and Adoption. That the Lease and Use Agreement between the County and AMPCO System Parking,
attached as Exhibit A, and incorporated herein by this reference, is hereby approved and adopted.
Section 2. Authority to Execute. 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 and the subject documents to accomplish the transactions that have been
approved as to form by the County Manager and County Attorney.
Section 3. Copies for Public Inspection. That true and correct copies of the License and Use Agreement (Exhibit "A") shall
be kept available for public inspection during normal business hours in the office of the Pitkin County Clerk and Recorder, Pitkin
County Courthouse, 530 E. Main, Aspen, Colorado 81611, and the office of the Director of Aviation, 0233 E. Airport Road, Suite
A, Aspen, Colorado 81611 (970) 920-5384.
Section 4. Public Hearing. That a public hearing on this Ordinance shall be held at 2:00 p.m., local time, or as soon
thereafter as the conduct of business will allow, on March 24, 1999 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 (by title only), ACCEPTED BY A MAJORITY OF THE BOARD AND SET FOR PUBLIC
HEARING AT A PUBLIC MEETING ON THE loth DAY OF March, 1999.
NOTICE OF PUBLIC HEARING, INCLUDING THE TEXT OF THE FULL-RESOfU-'FI9N {without exhibits) PUBLISHED (no
less than ten days in advance of the public hearing thereon) IN THE ASPEN TIMES ON THE 13th DAY OF March, 1999.
FINALLY ADOPTED, UPON SECOND READING AND AFTER A DULY -NOTICED PUBLIC HEARING BY A MAJORITY
OF THE BOARD AT A PUBLIC MEETING ON THE.24&,DAY OF Masch,.i999.
PUBLISHED (without exhibits) AFTER FINAL ADOPTION IN THE A PEN TIMES ON THE 3rd DAY OF April, 1999.
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Date
APPROVED AS TO FORM:
John Ely, County
RECOMMENDED FOR APPROVAL:
Scott Smith, Director of Aviation
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
l Sl�_ Q
L�eslie J. Lamont,
te(7 9
MANAGER APPROVAL:
Oat
Tom Oken, Director of Administrative Services
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CONTRACT #
Table of Contents
Airport Paid Parking Lease and Use Agreement
APPROVED BY
ORDINANCE
# i9/V
I. PROPERTY, TERM, USES, REQUIREMENTS, RESTRICTIONS 2
A. PROPERTY: 2
!. Demise of Property......... 2
2. Description of Property.... 2
3. Map of Property 2
4. Restricted entry/occupancy. - 2
5. Additional Property 2
6. Acceptance of Property. 3
B. TERM. 3
1. Initial Term 3
2. Renewal Term 3
3. Continued Occupancy with Consent of County (Holdover).. 3
4. Continued Occupancy without Consent of County 4
C. USES 4
1. Use of Property: - 4
2. Required and Permitted Uses 4
3. Exclusive Right to Paid Parking Facilities. 4
4. Prohibited Uses 4
D. REQUIREMENTS• 5
1. Requirements of Lessee's Operations 5
2. Service 5
3. Trade Fixtures, Furnishing and Equipment. 5
4. Signage 5
5. Environmental Quality Improvement Plan (EQIP). 5
E. RESTRICTIONS 7
I. Restrictions on Lessee's Operations. 7
2. Lessee Subject to Restrictions 7
II. MINIMUM ANNUAL GUARANTEE AND PERCENTAGE OVERRIDE, ADDITIONAL RENT, PAID
PARKING FEES & CHARGES, PAYMENTS, SURETY, AND REPORTS AND AUDITS 8
A. MINIMUM ANNUAL GUARANTEE AND PERCENTAGE OVERRIDE 8
1. Definition of Minimum Annual Guarantee and Percentage Override. 8
a) For the Initial Term 8
b) For the Renewal Term 8
2. Calculation MAG and Percentage Override. 8
3. Definitions. . 9
B. ADDITIONAL RENT 12
C. PAID PARKING FEES AND CHARGES 12
D. PAYMENTS 13
E. SURETY 15
1. Performance and Payment Security.: 15
2. Types of Security.. 15
3. County Use of Required Security 15
4. County Return/Release of Required Security. 16
F. REPORTS AND AUDITS 16
1. Lessee Reports 16
2. County's Right to Audit 19
III. COUNTY RESERVATIONS OF RIGHTS. 22
IV. RELEASE, INDEMNITY AND INSURANCE. 25
A. DEFINITIONS 25
B. RELEASE AND INDEMNITY 25
C. INSURANCE 26
I. Lessee's Required Insurance. 26
2. Certificates of Insurance 27
3. County Insurance Obligations 28
V. OPERATION AND MAINTENANCE OF PROPERTY. 30
A. HOURS OF OPERATION. 30
B. FIRST-CLASS MANNER 30
C. COLLECTION OF FEES 30
D. ACCEPTANCE OF CREDIT CARDS 30
E. SATISFACTORY REVENUE CONTROL 30
F. STAFF 30
G. DISPLAY OF RATES/TELEPHONE NUMBER 31
H. CUSTOMER COMPLAINT RESOLUTION 31
I. EMPLOYEE LOT 31
J. MAINTENANCE AND REPAIR 32
I. County's Obligation 32
2. Lessee's Obligations: 32
K. MODIFICATIONS, ALTERATIONS AND IMPROVEMENTS TO PROPERTY. 33
L. OTHER OPERATIONAL MATTERS: 35
1. County Obligations 35
2. Lessee's Obligations 35
VI. ASSIGNMENT 40
A. ASSIGNMENT PROHIBITED WITHOUT COUNTY CONSENT 40
B. ASSIGNMENT RELATING TO RENEWAL TERM 40
C. STANDARDS AND PROCEDURES TO OBTAIN COUNTY CONSENT 40
VII. DEFAULT AND TERMINATION 43
A. DEFAULT 43
BI. TERMINATION 48
VIII. GENERAL PROVISIONS 51
A. COORDINATION WITH OTHER AIRPORT USERS 51
B. SURRENDER OF PROPERTY/LESSEE'S PERSONAL PROPERTY 51
C. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS 51
D. LESSEE'S PERSONAL PROPERTY/TRADEMARKS 53
E. SUBSTITUTION OF PITKIN COUNTY AIRPORT FACILITIES 53
F. DESTRUCTION OF BUILDINGS AND OTHER IMPROVEMENTS 55
G. RIGHTS OF SEIZURE 55
H. RELATIONSHIP OF PARTIES 55
I. NON -LIABILITY OF COUNTY'S AGENTS AND EMPLOYEES 56
K. REPRESENTATIONS OF LESSEE. 56
L. ENTIRE AGREEMENT/MERGER 56
M. NO ORAL MODIFICATIONS 57
N. NO WAIVER 57
O. NO PRESUMPTION AGAINST DRAFTING PARTY 57
P. ATTORNEY'S FEES 57
Q. GOVERNING LAW/VENUE 57
R. BINDING EFFECT 57
S. CAPTIONS 57
T. DUPLICATE ORIGINALS; RECORDED SUMMARY 57
U. AUTHORITY OF LESSEE'S REPRESENTATIVE 58
(Effective 5/01/99)
ASPEN/PITKIN COUNTY AIRPORT
AIRPORT PAID PARKING FACILITIES
LEASE AND USE AGREEMENT
May 1, 1999 to April 30, 2002
between. AMPCO System Parking
and Pitkin County, Colorado
THIS LEASE 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" or "County"), as
County/Permittor, and AMPCO System Parking ("Lessee"), a California corporation, as
Lessee/Permittee.
WHEREAS, County is the owner, operator and sponsor 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 facilities,
certain areas for use as public paid parking facilities, a commercial airline terminal and
facilities, a general aviation terminal and facilities, certain areas for public use, certain
areas for exclusive and non-exclusive commercial use (subject to lease, license or
permit) and certain reserved areas; and
WHEREAS, County has the authority to operate and manage the Airport, to lease and
license the occupancy and use of Airport land areas, buildings and facilities, and to
permit and regulate commercial activities thereon, pursuant to, inter alia, C.R.S.
Sections 41-4-101 et seq., 30-11-107, as amended, and Section 8.7 of the Pitkin
County Home Rule Charter; and
WHEREAS, Lessee is engaged in the business of operating paid parking facilities and it
desires to occupy and use some of the areas and facilities of the Airport for that
purpose,
NOW, THEREFORE, for and in consideration of the mutual covenants, terms and
conditions contained herein, the County and Lessee do mutually undertake and agree
as follows:
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I. PROPERTY, TERM, USES, RESTRICTIONS
A. PROPERTY:
1. Demise of Property. In consideration of Lessee's payment of all rent
and other money due, and of Lessee's full and faithful performance of and
compliance with all other terms, conditions and covenants hereof, and
subject to the rights reserved by County herein, County hereby grants to
Lessee, and Lessee hereby accepts from County, the right to occupy and
use that portion of the land areas and improvements of the Airport, Pitkin
County, Colorado identified as the Airport Paid Parking Facilities
(hereinafter, the "Property"), depicted on Exhibit "A," and described below:
2. Description of Property. County grants to Licensee the right and
privilege to occupy and operate for the term and upon the covenants,
terms, and conditions set forth herein, the public paid parking facilities
serving the commercial airline terminal at the Airport, presently consisting
of approximately 363 motor vehicle public parking spots and serving any
new commercial terminal to which scheduled airline operations may be
changed during the term of this Lease and Use Agreement, including but
not limited to, the right of ingress and egress by vehicles from all terminal
access roads (hereinafter the "Property"). This Agreement shall be
deemed an exclusive right, subject to continuing federal and state
legislation, regulation, interpretation and case law enabling the County to
grant such rights.
3. Map of Property. The Property is depicted on Exhibit "A" attached and
incorporated by this reference. The County and Lessee acknowledge that
such Exhibits may not be to scale and shall be replaced, upon the mutual
agreement of the parties, at such time as scale maps based on actual
survey data become available.
4. Restricted entry/occupancy. Any entry on, occupancy of or use of
Airport land areas or improvements by Lessee that is not expressly
demised and described by this Lease shall be and is hereby prohibited,
except by separate prior written permission from the County and under
such terms and conditions as the County, in its sole discretion, may
determine.
5. Additional Property. If, during the term of this Agreement, additional
Property is made available by or permitted by Pitkin County for occupancy
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and use by Lessee, Lessee and County shall enter into good faith
negotiations for the commercially reasonable fees or charges to be paid
by Lessee prior to such additional use and occupancy.
6. Acceptance of Property. The Lessee agrees that the Property and
parking equipment on the Property has either been occupied or inspected
by Lessee at the beginning of this Lease term and is accepted and initially
will be occupied by Lessee on an "as is" basis except for latent defects.
B. TERM.
The term of the occupancy and use of the Property by Lessee shall be as
follows:
1. Initial Term. The Initial Term of this Lease shall be three (3) years,
commencing at 12:01 a.m. MDT, May 1, 1999, and expiring at 12:00 p.m.
MDT, April 30, 2002, unless earlier terminated or renewed as provided
herein.
2. Renewal Term. County shall have the sole option of extending the
Lease and Use Agreement one (1) Renewal Term of two (2) years,
commencing May 1, 2002, and expiring April 30, 2004, under the following
conditions:
a) Notice to Lessee. County must give Notice of its intent to
exercise this option between January 1, 2002 and April 30, 2002.
b) Status of Lessee. Lessee shall, at the time of such Notice and
until the end of the Initial Term, not be subject to an uncured
default.
c) Terms and conditions. The terms and conditions of this
Renewal Term shall be those provided by this Lease, as amended,
by the mutual agreement of the parties.
3. Continued Occupancy with Consent of County (Holdover). If Lessee
remains in occupancy of the Property after the expiration of Initial or
Renewal terms with the consent of County, Lessee's interest in the
Property from and after that date shall be deemed to be month -to -month,
pursuant to the terms and conditions of this Lease, or as the parties may
otherwise agree in writing, or, if the parties shall fail to agree in a
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reasonable time, upon such other terms and conditions as may be
established by the Airport, in its sole discretion, upon ten (10) days' notice
to Lessee.
4. Continued Occupancy without Consent of County. If Lessee remains
in occupancy of the Property without the consent of County, it shall have
the obligation to pay the Minimum Annual Guarantee for such period at a
rate of 200% of the last effective rate hereunder.
C. USES
1. Use of Property. Lessee agrees to use of the Property as specified in
this Part I, C.
2. Required and Permitted Uses. Lessee shall occupy and use the
Property solely for the purpose of operating the Airport Paid Parking
Facilities.
3. Exclusive Right to Paid Parking Facilities. County acknowledges that
Lessee's proposal and agreement to operate the parking facilities is
based on a representation that only one paid parking facility was planned
at the Commercial Airline Terminal for the term of this Lease.
4. Prohibited Uses. Lessee shall not occupy, use, permit or suffer the
Property or any part thereof to be occupied or used as follows:
a) For any use, activity, display or product not specifically
permitted herein; any such use shall be and is hereby prohibited,
except as by separate prior written permission from the County and
under such terms and conditions as the County, in its sole
discretion, may determine.
b) For any occupancy, use, business, activity or purpose that is
unlawful or illegal or in any way in violation of any present or future
statutes or ordinances or formally -adopted rules, regulations,
requirements, orders, directives of the United States of America,
State of Colorado, County of Pitkin, or other lawful authority
whatsoever.
c) For any activity deemed by the County to be hazardous, or in
such manner as to constitute a nuisance of any kind, or which will
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in any way increase the rate of fire, casualty or liability insurance
upon the Airline Terminal or the Airport.
d) For any auction, fire or bankruptcy sale, without County's
consent.
e) For use of the Property, with or without charge, by any rental
car company, regardless of whether rental car company does or
does not possess a license and use agreement with the County, or
is located on -site or off -site of the commercial terminal facilities.
This specifically does not pertain to rental vehicles while they are
leased by customers, but does pertain to Property use by rental car
companies for storage, customer pick-up, and/or customer drop-off.
D. REQUIREMENTS:
1. Requirements of Lessee's Operations. Lessee, in the conduct of its
operations, shall undertake an affirmative obligation, for the term of this
Lease, and as it may be renewed, to operate the Airport Paid Parking
Facilities at times and in a manner described in this Lease.
2. Service. The airport paid parking facilities shall be operated and
managed in an efficient, businesslike and courteous manner.
3. Trade Fixtures, Furnishing and Equipment. Lessee shall provide
sufficient trade fixtures, furnishings and equipment to operate airport paid
parking facilities.
4. Signage. All signage as required for the operation of the Property, and
as further described in Section V, shall meet the requirements of the
Pitkin County Land Use Code and the Airport Signage and Graphic
Standards.
5. Environmental Quality Improvement Plan (EQIP). The County's stated
goal is to plan for the reduction or elimination and continually reduce or
eliminate environmental degradation caused by the operations of Airport's
lessees, licensees and permittees (LLPs) in all areas including, without
limitation: pollution by CO, CO2, CFCs, particulates, and other internal
combustion engine emissions; traffic congestion; gasoline consumption;
and solid waste.
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It is the express intention of the County that all Airport LLPs strictly comply
with all environmental rules and regulations as outlined in the County
Land Use Code, 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.
The following EQIP is a material element of this Lease and a breach of
EQIP obligations is a material breach.
Until the expiration or termination of this Lease, Lessee shall
diligently accomplish and/or comply with an Airport EQIP as
follows:
a) Promptly after the execution of this Lease, Lessee agrees to
institute the following operational practices:
(1) Chloroflourocarbons (CFCs). No products containing CFCs are to
be sold or used in operations or maintenance.
(2) Hazardous materials. Lessee shall not authorize the use of' or storage
on the Property of any hazardous materials, including those defined as
such by state and federal law.
(3) Energy conservation. Lessee shall take all reasonable steps to
reduce energy consumption on or concerning the Property.
(4) Auto emissions. Lessee shall take all steps to reduce motor vehicle
emissions and traffic congestion with respect to product deliveries and
employee transportation including, by way of example, providing
employees with free or discounted RFTA bus passes for transportation to
and from work.
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E. RESTRICTIONS
1. Restrictions on Lessee's Operations. Lessee, in the conduct of its
operations, shall be subject to the following restrictions:
a) Lessee shall not place any objects, displays or signs upon the
Property, except of such design, content and structure as shall be
approved by County, provided that County's approval shall not be
unreasonably withheld.
b) Lessee shall not knowingly or willfully divert or permit the
diversion of business from the Property with the intent of evading
Airport payments, regulations, restrictions, requirements, fees or
charges.
c) All revenues derived from the conduct of business prohibited or
restricted by this Section shall be includable for purposes of
percentage of Gross Revenue calculations and payments pursuant
to this Agreement.
d) Lessee shall not hold or control, directly or indirectly, any rights
or obligations in the management, operations, property, inventory,
ownership, voting or financing of any other Airport LLP or entity
doing business on, at or through the Airport without the County's
consent, in its reasonable discretion.
2. Lessee shall be subject to any restrictions as outlined in Section V,
describing the operation of the Property.
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II. MINIMUM ANNUAL GUARANTEE AND PERCENTAGE OVERRIDE,
ADDITIONAL RENT, PAID PARKING FEES & CHARGES, PAYMENTS,
SURETY, AND REPORTS AND AUDITS
A. MINIMUM ANNUAL GUARANTEE AND PERCENTAGE OVERRIDE
1. Definition of Minimum Annual Guarantee and Percentage Override.
a) For the Initial Term (May 1, 1999 to April 30, 2002), Lessee
shall pay a Minimum Annual Guarantee (MAG) of $120,000 per
contract year (May 1 to April 30), plus seventy-five percent (75%) of
the Lessee's annual "Gross Revenues", all as defined herein, in
excess of $300,000 per contract year.
b) For the Renewal Term (May 1, 2002 to April 30, 2004) of this
Agreement, Lessee shall pay a MAG of $120.000 per contract
year, plus seventy-five percent (75%) of the Lessee's annual
"Gross Revenues" in excess of $300,000 per contract year.
For purposes of this Agreement, a "contract year" for the MAG shall be
May 1 through April 30 annually.
2. Calculation MAG and Percentage Override. The payments of the
monthly MAG and monthly Percentage Override amounts shall be
calculated as follows:
a) On or before the 20th day of the second and each successive
month of the term of this Agreement and the first month after the
expiration or termination of this Agreement, Lessee shall submit a
statement showing the Lessee's Gross Revenues for the preceding
month, said statement to be in form approved or required by the
Airport Manager and the County's Finance Director and signed and
certified to be complete and accurate by an employee of the
Lessee authorized to make such a certification.
b) Reconciliations of the monthly percentage fee that may be due
shall take place on the twentieth (20th) day of each month of the
term of this Agreement, or promptly at the end of any term. If
monthly revenues exceed $25,000 (twenty-five thousand dollars) in
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any month, then seventy-five percent (75%) of the total monthly
revenues will be calculated as due to the County. For example, if
revenues for January are $33,000, then $24,750 will be due as the
monthly percentage override. If revenues for May are $24,000,
then no monthly percentage override is due, and only the monthly
MAG payment of $10,000 is due.
c) Immediately upon Lessee's receipt of revenues from its
activities hereunder, such funds representing payments owed to
County hereunder shall be vested in and become the property of
the County, and Lessee shall hold and be responsible for said
funds as a Trustee until the same are delivered to the County.
d) Once annually in the month following the end of the contract
year and on the twentieth (20th) day (or May 20th annually), a
reconciliation of the annual MAG and annual percentage override
shall take place. Lessee shall submit a statement showing the
Lessee's Gross Revenues for the preceding contract year and the
total amount of MAG and percentage override paid to the County
for the preceding contract year. Said statement is to be in a form
approved or required by the Airport Manager and the County's
Finance Director and signed and certified to be complete and
accurate by an employee of the Lessee authorized to make such
certification. If the Lessee's total annual gross revenues exceed
$300,000 (three hundred thousand dollars), then seventy-five
percent (75%) of the total Gross Revenues should have been paid
to the County for the contract year. If the Lessee's total annual
gross revenues are $300,000 (three hundred thousand dollars) or
less, then $120,000 (one hundred twenty thousand dollars) should
have been paid to the County for the contract year. If any shortfall
in payment to the County is calculated, then that amount shall be
immediately due to the County, If any overage is payment to the
County is calculated, then that amount shall be immediately
credited to the Lessee, or in the event of the termination of the
contract for any reason, then that amount shall be credited to any
sums owed by Lessee or applied to any debt owed to County.
3. Definitions. Definitions for the purposes of this Agreement, including
the calculation of the Percentage Override, shall be as follows:
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a) "Gross Receipts, Gross Revenues, Gross Sales" as used in this
Lease shall mean:
All sums chargeable by Lessee, whether received or not, from the
parking of vehicles whether on an hourly, daily, or weekly basis,
and
shall be deemed received at the time the sales, lease or service
transaction occurs giving rise to Lessee's right to collect said
monies, regardless of whether said transaction was conducted in
person, by telephone, by wire (FAX, telex, etc.), by mail or by any
other method of information transmission, whether the transaction
was for cash or credit, and if for credit, regardless of whether the
Lessee ultimately collects the monies owed for said transaction
from the customer involved, and
not including any charges incurred by Lessee for towing of
vehicles, and
minus the following deductions:
Federal, state or local sales taxes separately stated and
collected from customers;
amounts Lessee receives, or is entitled to receive, for the
sale, disposition, loss, repair, replacement, conversion, or
abandonment of Lessee's stock, equipment, business
personal property, and trade fixtures; and
amounts Lessee identifies as point -of -sale discounts,
refunds or customer service adjustments, as long as such
discounts, refunds and adjustments are separately identified
and documented and are part of a written Lessee business
policy for such discounts, refunds or customer service
adjustments, which policy is approved in advance, in writing,
by the County.
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All revenues excluded under this paragraph shall be reported to the
County and subject to verification and audit as provided herein.
b) Equitable Adjustment. "Equitable Adjustment" shall mean a
temporary or permanent adjustment in the revenue and/or the
expense structure of this Lease that is negotiated by the parties in
response to some future change in circumstances as outlined
below. An Equitable Adjustment may provide for a net increase or
decrease in the MAG and Percentage Override and non -monetary
obligations. An Equitable Adjustment shall be the minimum
adjustment that is commercially reasonable under the
circumstances.
(1) Mediation in Case of Negotiation Impasse. A good faith negotiation
to determine the Equitable Adjustment first shall be undertaken by
Lessee and the Airport. If agreement is not reached, the matter shall be
submitted to a neutral, third party mediator. This mediator shall be
mutually selected and compensated by the Lessee and the County and
shall be, unless expressly agreed otherwise, The American Mediation
Association. The mediator shall establish the procedures for the
mediation (e.g. required submittals, deadlines, and manner of
presentations), but it shall end with a written report and
recommendation.
The mediation shall be non -binding, but if either of the parties disagrees
with the report, it shall have the following remedies:
(a) If Lessee disagrees, it may either be bound by the mediation
decision or terminate the lease upon 120 days' notice.
(b) If the County disagrees, it may either be bound by the
mediation decision or terminate the lease upon 90 days notice.
(2) The following situations will be eligible for an Equitable
Adjustment:
(a) If the airport runway is closed due to repair work.
(b) If the commercial air carrier terminal is closed due to acts
of casualty or if the commercial air carrier terminal is closed
due to repair work being conducted on the runway.
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(c) For conditions outlined in Section III (D) and/or Section
III(I) and/or Section VIII (F).
(d) If all commercial air carrier service is suspended for any
reason, except for flight cancellations occurring in the normal
course of airline business, such as weather and/or mechanical
cancellations.
(3) The following situations will NOT be eligible for an Equitable
Adjustment:
(a) An increase or decrease in commercial air carrier
enplanements.
(b) If some commercial air carrier service is suspended for any
reason, but there is at least one commercial air carrier
providing service to the airport.
B. ADDITIONAL RENT
Additional Rent. In addition to the MAG and Percentage Override, Lessee shall
pay Additional Rent, as and when applicable, as follows:
Advances, costs, fees and expenses incurred by County in connection
with or arising from a default by Lessee, as provided below. One example
of such a fee would be bank fees associated with drawing on the Lessee's
surety.
Such rent, fees or charges established for occupancy and use of
additional Property as provided herein. One example of such a rent would
be rent in the amount of 200% of the annual MAG due to the County in
the event of Lessee's continued occupancy without the consent of the
County (as further identified in Section B.3.
Any other costs, fees or charges to be paid by Lessee to County
hereunder.
C. PAID PARKING FEES AND CHARGES
Parking rates to be charged by Lessee shall be in accordance with the following
schedule, and may only be adjusted with written consent of the County:
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Short -Term Lot:
0 minutes to 1 hour:
Each additional hour:
Daily Maximum:
(10 hours)
10-24 hours:
Long-term Lot:
0 to 1 hour:
Each additional hour:
24 hours:
1 week:
(5-7 days)
$ 1.00
$ 2.00
$ 8.00
$13.00
$ 2.00
$ 1.00
$ 5.00
$25.00
Employee Lot:
Employees on -duty at Commercial Airline Terminal
Airline employees on -duty not at Commercial Airline
Terminal (as space permits)
$10.00/month'*
$20.00/month
** This rate will be raised to $10/month after scheduled lot improvements
and thirty (30) day notification to employees. It will be $5/month until that
time.
D. PAYMENTS
1. Payments. The payments of the MAG and Percentage Override, and
Additional Rent required above, shall be made and delivered as follows:
a) All payments shall be timely made, without deduction, set-off or
escrow of any kind whatsoever.
b) For the first month of the term of this Agreement, or May 1999,
the MAG will be due in advance on May 1, 1999.
For the second and each following month of the term of this
Agreement, the MAG will be paid in advance on the 20th of each
month for the ensuing month, and will be paid in installments of
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$10,000 per month. (For example, the MAG for the month of June
is due May 20.)
c) The Percentage Override will be paid in arrears on the 20th of
each month for the previous month, and will be paid for revenues
received in the previous month which exceed $25,000. (For
example, the Percentage Override for the month of May is due
June 20.)
d) If the 20th day of the month is a Saturday, Sunday or County
legal holiday, that payment shall be due on the next succeeding
business day.
e) All payments shall be made in the office of the Treasurer, 506
East Main Street, Aspen, Colorado, 81611 or at such other place
as the County may direct in writing.
f) All payments shall be considered delinquent if not received by
the last business day of the month due. If the last business day of
the month is a Saturday, Sunday or County legal holiday, that
payment shall be delinquent if not received on the next succeeding
business day.
All delinquent payments shall each 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; 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.
If Lessee makes any payment to County with a check that fails to
clear the bank on which it is drawn the first time it is submitted, that
payment shall not be deemed made until Lessee delivers to County
the amount of the payment (together with any late charges, bank
charges, and default interest) in cash or by certified or cashier's
check. After the second time during the Term that a payment
check from Lessee fails to clear, County shall not be required to
accept any payments from Lessee other than in cash or by certified
cashier's check.
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E. SURETY
1. Performance and Payment Security. Promptly after execution of this
Agreement and prior to actual occupancy and use of the Property, 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 payments by Lessee of all of its obligations
including, without limitation, the payment of the MAG, Percentage
Override, and Additional Rent
2. Types of Security. Lessee shall deliver a Letter of Credit or other
security in a form satisfactory to the Pitkin County Attorney's office, in the
amount of $50,000. This Letter of Credit or other security shall be
maintained in effect throughout the term of this Agreement and sixty (60)
days after the end of the term as surety for Lessee's full and faithful
compliance with its obligations.
These requirements may be waived or reduced in writing by the County, in
its sole discretion, for a Lessee with a satisfactory payment or
performance history for at least three (3) years; 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 it may, as
part of that Notice, require this Letter of Credit or security to be delivered
promptly as part of any cure of such Notice.
It is expressly agreed that such amounts are not an advance payment of
rental or a measure of County's damages in case of default by Lessee.
County shall have the right to commingle any cash amounts received
hereunder with its other funds.
3. County Use of Required Security. If at any time during the Term, any
of the MAG, Percentage Override or Additional Rent shall be overdue and
unpaid, or any other sum payable by Lessee to County shall be overdue
and unpaid, then County may, at its option, and upon Notice to Lessee,
appropriate and apply any portion of the Letter of Credit or security 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, then County may, at its option and upon Notice to Lessee
(and its surety, if applicable), appropriate and apply the Letter of Credit or
security, or as much as may be necessary, to compensate County for
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advances, expenses, loss or damage sustained or suffered by County due
to such breach on the part of Lessee.
Should the Letter of Credit or security or any portion thereof be
appropriated and applied by County 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 days after the written demand
of County, restore the Letter of Credit or security to the original sum
deposited or required.
4. County Return/Release of Required Security. No later than 60 days
after the expiration or termination of this Lease, County 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 by Lessee to County hereunder, then release the Letter of Credit
or security; or if Lessee has not complied with such obligations, provide
written notice to Lessee and/or its surety of County's claims against said
amounts and return/release the remainder.
F, REPORTS AND AUDITS
1. Lessee Reports. Lessee shall prepare (or have prepared) and deliver
to County complete and accurate reports as follows:
a) Monthly Reports. By the 10th of each month for the previous
month, Lessee shall provide the Director of Aviation with copies of
the below listed records. Said records shall be signed and certified
as complete and correct by an official of Lessee authorized to so
certify, and shall be in a form acceptable to the Airport, and such
acceptance shall not be reasonably withheld.
(1) by date and lot, the number of vehicles parked in the short-term,
long-term and employee lots at the Airport.
(2) the number of employee parking passes sold.
(3) listing of gross receipts, including all payments in advance.
(4) listing of any and all refunds.
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(5) listing of in -car parking meter sales pertaining to the Airport made
by the City of Aspen and/or Lessee by dollar amount.
(6) listing of sales of Aspen Smart Cards by Lessee by dollar amount.
(7) listing of Aspen Smart Card usage at the Property by dollar amount.
(8) revenue control reports kept by the Lessee in its normal course of
business.
(9) listing of complaints received, and resolution thereof.
(10) listing of accounts gone to collection, including the amount of
each account.
b) Annual Reports. Within ninety (90) days after the end of each
Lease Year, Lessee shall deliver to County a written statement
signed by a Colorado -licensed certified public accountant or by
some other person acceptable to County setting forth the amount
of Lessee's gross sales and Gross Revenues for the preceding
Lease Year. The accountant or other person shall certify that the
gross sales and revenues have been computed in accordance with
the definitions contained in this Lease. If the Percentage Override
for the contract year is more than the total actually paid by Lessee,
Lessee shall pay the balance due to the County within thirty (30)
days of delivery of the annual statement.
c) Special Reports. Lessee shall submit to County, at County's
request, such other and further reports containing information that
is reasonably necessary, in the discretion of the County, to monitor
current airport paid parking facilities, to audit or review past
operations or to plan future operations, providing such reports
would be reasonably expected to be available.
d) Lessee Business Records. Lessee shall maintain full and
accurate books of account and records from which Gross Sales,
Gross Receipts and Gross Revenues, as defined herein, the
amount and nature of all business transacted on or though the
Property and the amount of Percentage Override owed the County,
can be determined and verified, according to standard and
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generally -accepted accounting principles and practices and
auditing standards.
Lessee's required books of account and records shall include,
without limitation, legible, true and accurate copies of all written
and electronic records and reports kept in the normal course of
Lessee's business.
Lessee's financial recordkeeping and reporting system for all
business conducted on or through the Property or subject to this
Agreement shall include, without limitation, the following:
Complete, accurate and legible copies with respect to
Lessee's gross revenues for the property of all parking
machine tapes, bank deposits, sales tax reports, sales slips,
credit card records, monthly sales tax returns, sales and
disbursement journals, general ledgers, bank statements,
bank books, bank deposit slips, annual federal income tax
returns pertaining to AMPCO System Parking (and not ABM
Industries, Inc.), state sales tax returns pertaining to AMPCO
System Parking (and not ABM Industries, Inc.) and all
Airport -related revenue reports submitted by Lessee to its
parent compan(ies), if any, and all computer and/or
microfilm or microfiche reproductions of the above.
Adequate financial controls, under generally accepted
accounting principles and practices and auditing standards,
to ensure complete and accurate recording and reporting of
all Gross Sales, Gross Receipts, and Gross Revenues.
Any other document or procedure which, in the reasonable
discretion of the County, is necessary or useful to determine
or verify Lessee's obligations under this Agreement. Such
new documents or procedures shall be used or instituted a
reasonable time after written notice of the procedures has
been sent by the County to Lessee.
These books and records shall be maintained on a current basis
and shall be stored for a period of at least thirty-six (36) months
from the end of each monthly period, or for such longer period of
time as County reasonably may direct in writing. The location of
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these books and records shall be disclosed to the County and, if
such records with respect to Lessee's Gross Revenues for the
Property are not stored within Pitkin County, it shall be Lessee's
responsibility, at its expense, to promptly make such records, upon
request, available to County, or its representatives, in a time,
manner and format to the satisfaction of the County, in its
reasonable discretion.
2. County's Right to Audit. The County may conduct audits of Lessee's
books of account and records with respect to Lessee's Gross Receipts for
the Property as follows:
a) Time and Frequency of Audits. The County may conduct audits
of Lessee at any of the following times: annually; at the expiration
or termination of the term hereof; upon a request by Lessee of
assignment of its rights hereunder; and upon the receipt by County
of any information that would lead a prudent commercial landlord to
draw a reasonable inference that Lessee is not in full compliance
with its financial obligations this Agreement.
b) Manner of Audits. Such audits shall be conducted upon
reasonable notice to Lessee and during Lessee's normal weekday
business hours. For purposes of this Agreement, the annual audit
period shall be deemed to commence on May 1 of each year of the
Agreement and to conclude on April 30 of the ensuing year.
County shall hold all information obtained from any such audits in
confidence except: as may be necessary to enforce the County's
rights under this Agreement; as part of any federal, state or local
tax proceedings; and with respect to any legal requirements or
Court Order to disclose said information.
c) Scope of Audits. In performing said audits, County shall be
entitled to review, and Lessee shall be obligated promptly to
provide to the County upon demand, all of the books of account
and records with respect to Lessee's Gross Receipts for the
Property that Lessee is obligated to maintain pursuant hereto, plus
such other records, documents and files in Lessee's possession,
custody or control during the term that the County, (or its auditor),
determine, in their sole discretion, are useful, relevant or necessary
to determine or verify the correct amount of reportable, includable
and excludable Gross Revenues, Gross Sales and Gross Receipts
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attributable to Lessee, and the correct amount of Percentage
Override owed by Lessee to the County, for the period involved.
One Hundred Eighty (180) days after the date all documents
requested by the County have been received by the County, the
County shall release Lessee from any liability for underreporting or
underpayment hereunder, unless the County shall have given
Notice, within that period, of any questions, objections or
exceptions to the statement or any claims for inadequate or
deficient reporting or payment. Once such notice is given, the
parties shall expeditiously and in good faith cooperate to resolve
the matters contained therein.
d) Results of Audits. Should Lessee fail to maintain the books of
account and records required to be maintained pursuant hereto, or
should Lessee fail to deliver and enable County (or its auditor) to
review Lessee'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 breach of this Lease and Lessee shall pay,
as liquidated damages for such breach, an additional amount equal
to fifty (50%) percent of the verifiable costs, fees, payments and
charges due from Lessee for the period in question; provided,
however, that Lessee shall only pay these damages for failure to
keep required records if such requirements are reasonable in light
of Lessee's business practices (as such practices may be modified
by County requests hereunder) and generally accepted accounting
principles and auditing standards.
If any audit shows percentage compensation and other fees and
charges that should have been paid to the County by the Lessee
pursuant to this Agreement were understated or underpaid for any
period involved (including, expressly, revenues from prohibited or
unpermitted transactions, Property or diverted business), Lessee
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 audit discloses overpayment of
the Percentage Override paid to the County by Lessee, the County
shall refund the amount of overpayment to Lessee within thirty (30)
days of said audit.
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e) Expenses of audits. Generally, the County shall bear the
expense of annual, end -of -term or investigatory audits; however, if
the amount of underpayment disclosed by any audit exceeds
exactly two (2.0%) percent of the total Percentage Override or
Additional Rent that was owed by Lessee to the County for the
period involved, Lessee, in addition to paying the County the
underpayment owed and interest accrued thereon shall, within
thirty (30) days' Notice by County, reimburse the County for the
cost of the audit not to exceed Twenty-five Hundred Dollars
($2,500.00).
f) An audit conducted prior to any assignment, conveyance or
transfer by Lessee of this Lease or any rights or obligations
hereunder requiring approval of the County as required herein,
shall be at the sole expense of the Lessee.
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III. COUNTY RESERVATIONS OF RIGHTS.
Lessee acknowledges that the Airport is a federally -funded public service airport and,
as such, has separate obligations to the Federal Aviation Administration (FAA) and
aviation -related uses of the Airport, which obligations may take priority to the rights of
non -aviation -related Lessees, Licensees and Permittees.
To that end, County reserves the following rights with respect to the Property and all
uses and operations to be conducted thereon:
A. County reserves the right to unimpeded access over and across the surface
of the Property, except for the buildings and other improvements situated
thereon; provided, that County shall not, in the exercise of this reserved right,
unreasonably interfere with Lessee's use of the Property. County shall be
entitled to enter upon the Property and into any improvements in a reasonable
time and manner consistent with the purpose of the entry and inspection, for the
purpose of inspecting the same, preventing waste or loss, responding to
emergencies or complaints or enforcing any of County's rights hereunder.
B. 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 Property, together
with the right to cause in and around said air space and on the ground such
noise as may be inherent in the operation of aircraft utilizing the Airport.
C. County reserves the right to protect the aerial approaches of the Airport
against obstruction, including the right to prohibit Lessee from erecting, or
permitting to be erected or maintained, any building or other structure or
obstruction on the Property which would, in the discretion of the County, limit the
aeronautical usefulness of the Airport or constitute a hazard to aviation.
D. County reserves the right to subordinate the provisions of this Lease, without
prior notice to Lessee, 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 Lease shall be suspended and/or automatically modified
insofar as such provisions are inconsistent with the provisions of the agreement
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with the United States Government. If, by reason of any such agreement with
the United States Government it becomes necessary to modify, relocate or
remove any improvements or other structures situated on the Property, the
Lessee agrees to modify, relocate or remove any such improvements or
structures as directed by County. If the improvements removed were lawful and
permitted, the County shall reimburse Lessee for the reasonable cost and
expense thereof.
E. County reserves the right, during the time of War or national emergency, to
lease the Airport or any part thereof, including the Property 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 provisions of
this Lease shall be suspended insofar as such provisions may be inconsistent
with the provisions of the lease to the United States Government.
F. County reserves the right to direct, in its sole discretion, all activities of the
Lessee at the Airport in the event of an emergency condition that is a threat to
the public health, welfare and safety.
G. County reserves the right to grant leases, licenses, uses, permits or rights to
other parties to occupy or operate commercial activities on the Airport so long as
such other grants do not unreasonably interfere, in the reasonable discretion of
the County, with Lessee's operations.
H. The County reserves the right to direct Lessee's operations in the event that
such operations are unreasonably interfering, in the reasonable discretion of
County, with the use by others of the Airport; e.g., to restrict the use of "public"
areas of the commercial airline terminal and public -access curbs, sidewalks and
roadways in favor of the public.
I. County reserves the right to further plan, develop, improve, remodel and/or
reconfigure the Airport, including the Property and existing vehicle and
pedestrian traffic patterns, as County deems appropriate without interference or
hindrance by the Lessee, and County shall have no liability hereunder to Lessee
by reason of any interruption to Lessee's operations on the Property occasioned
by such County activities; provided, however, that County shall consult in
advance with Lessee on such changes and if Lessee shall be unable to conduct
reasonably normal business operations on the Property by reason of any such
County activities, then the fees hereunder may be abated and/or subject to
Equitable Adjustment during the period of such interruption.
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J. The County reserves the right, in its sole discretion, to enter into agreements
for the financing or re -financing of the Airport and Lessee agrees to cooperate in
providing information to prospective lenders and in providing estoppel certificates
and similar documents, if so requested.
K. County reserves the right to prohibit any commercial or non-commercial
activity by any party on the Airport, unless that activity has express prior, written
permission from the County.
L. 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.
M. County reserves the right to require Lessee to obtain any necessary land use
approvals for any development of the Property by the Lessee during the term of
this Agreement through the established County land -use application/review
process, with costs and fees to be paid by the proposed developer.
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IV. RELEASE, INDEMNITY AND INSURANCE
A. DEFINITIONS.
For purposes of this Section:
"Lessee" shall mean: Lessee's business entity and shareholders, directors,
officers and employees; Lessee's agents, representatives,.
"County" shall mean: the County of Pitkin (a Colorado home -rule County), the
Aspen/Pitkin County Airport and the officials, employees, agents and
representatives thereof.
"Liability" shall mean: the legal obligation to pay compensation to an injured or
aggrieved party.
"Loss" shall mean: judgments or awards for money damages (direct and
consequential, general and special), penalties, expenses, costs (including costs
of investigation and defense), fees (including reasonable attorney and expert
witness fees) or payments of money or compensation in any form or kind
whatsoever.
"Casualty" shall mean: property damage caused by fire, water, snow, ice, wind,
collision, collapse or explosion.
"Claim" shall mean: any legal claim, notice of claim, claim for relief, demand,
lien, complaint, cause of action or other legal proceeding to establish legal or
financial liability.
"Personal Injury" shall mean: property damage, bodily injury or death.
B. RELEASE AND INDEMNITY
1. Lessee's Release and Indemnity of County. Lessee shall and hereby
does release, discharge, indemnify and hold harmless County from and
against liability for any loss in connection with any casualty claim of
Lessee or personal injury claim of Lessee or third parties arising out of or
in connection with Lessee's occupancy and use of the Property, but only
to the extent same are caused by negligence, misconduct or other fault of
Lessee, its agents or employees. This release and indemnity shall apply
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to the extent of any intentional acts or negligent acts, errors or omissions
of Lessee, but shall not apply to loss caused by the intentional acts or the
negligence, misconduct, or other fault of County.
Further, Lessee shall, to the extent set forth in the above indemnity
investigate, process, respond to, adjust, provide defense for and defend,
pay or settle all claims, demands, or lawsuits related to its parking
operations on the Premises 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.
C. INSURANCE
1. Lessee's Required Insurance. To fund this indemnity, in whole or in
part, the Lessee shall secure and maintain for the term of its contractual
relationship with the County such insurance policies, from companies
licensed to do business in the State of Colorado, as will protect itself, the
County (with the County named as additional insured, but only to the
extent same are indemnified pursuant to Section IV,(B)(1)), and others as
specified, from claims for bodily injuries, death, personal injury or property
damage, which may arise out of or result from the Lessee'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:
Statutory Worker's Compensation: Colorado statutory minimums
Commercial General Liability
1) Policy Limits:
Bodily Injury/Property Damage Combined Single Limit
of $2,000,000;
2) Deductible
No greater than $50,000
3) Endorsements:
x Comprehensive Form (All risks)
x Property/Operations
x Products/Completed Operations
x Broad Form Blanket Contractual (Hold Harmless
Coverage)
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x Independent Contractors and Subcontractors
x Broad Form Property Damage
x Personal Injury, with Employment Exclusion Deleted
Comprehensive Motor Vehicle Liability Insurance
1) Policy Limits:
Bodily Injury/Property Damage Combined Single Limit
of $ 1,000,000;
2) Deductible
No greater than $50,000
2) Endorsements:
x Any Auto
x All Owned Autos
x Hired Autos
x Non -Owned Autos
x Garage Keepers
Special Coverages:
1) Surety Bond:
x 2) Fidelity Bonds: $10,000 per employee
x 3) Building contents: to the full replacement value of
Lessee's equipment, trade fixtures and personal and
business property (may be waived by County upon
separate, express, written assumption of risk by
Lessee)
x 4) Business interruption: the full value of Lessee's extra
costs and lost profits for 60 days' interruption of
operation (may be waived by County upon separate,
express, written assumption of risk by Lessee)
2. Certificates of Insurance. To provide evidence of the required
insurance coverages, Certificates of Insurance in a form acceptable to the
County shall be filed with the County (through the Director of Aviation) no
later than ten (10) 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
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coverage afforded under the policies will not be cancelled 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 eliminating or
reducing the types or amounts of coverages available for the protection of
the County and required herein, including a change to policy limits as set
out in the then -current policy declarations page.)
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 named as an 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, but only to
the extent County is indemnified pursuant to Section 1(B)(1).
c) 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 Lessee but only to the extent County is indemnified
pursuant to Section 1(B)(1)..
d) Property of operations shall be: "all operations and areas on the
Aspen/Pitkin County Airport conducted by or used and occupied by
Lessee."
3. County Insurance Obligations. County shall procure fire and extended
coverage insurance and boiler insurance covering the commercial airline
terminal for the full replacement value. County shall maintain such
insurance in full force and effect during the term of this Lease and shall
furnish Lessee, at Lessee's request, with a copy of a certificate evidencing
such insurance.
a) Lessee shall be required, at its sole cost and expense, to
comply with any and all requirements pertaining to the Property of
any insurance company necessary for the maintenance of
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reasonable fire, casualty and public liability insurance covering the
commercial airline terminal and the airport.
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V. OPERATION AND MAINTENANCE OF PROPERTY.
A. Hours of Operation. Lessee shall open and remain open for business and
be adequately equipped, provisioned and staffed to serve the market demand,
every day of the year from at least one hour before to one hour after the time
commercial airline flights are scheduled for operations.
B. First -Class Manner: Lessee shall operate facilities in a first-class manner so
that there shall not be more than a five (5) minute waiting span for any exiting
patron, in the absence of unusual, unforeseeable circumstances or
circumstances beyond Lessee's control. There shall not be more than a two (2)
minute waiting span for any patron entering the Property to use a pay parking
stations in either the short-term or long-term lots.
C. Collection of Fees: Lessee shall collect all parking fees due and promptly
pay all parking fees due to County pursuant to Section II.
D. Acceptance of Credit Cards: Lessee will accept payment of parking fees
with major US credit cards with no cost to the County. Lessee will accept
payment of parking fees with Aspen Smart Cards with no cost to the County, and
as further outlined in Paragraph K.I..
E. Satisfactory Revenue Control: Lessee must institute revenue control
procedures for the airport paid parking facilities, including:
1. procedures to monitor (or control if use of gates are later required by
County) ingress and egress from Property
2. procedures for collection of proper fees per the approved rate
schedule
3. procedures for satisfactory accounting, recordkeeping, reporting and
auditing.
F. Staff:: Employees. Lessee shall provide adequately trained and supervised
personnel in sufficient numbers to provide information to potential customers and
to assist in and arrange for sales transactions. Lessee's employees shall be
safety -conscious, environmentally sensitive, helpful and courteous at all times.
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Supervision. Employees shall be adequately supervised, or have access to
operational policies and procedures, to respond to customer complaints and
Airport inquiries
G. Display of Rates/Telephone Number: Lessee shall prominently display the
current parking rate schedule at all lot entrances and at all parking machines,
and display a local telephone number for the resolution of questions and
complaints concerning the airport paid parking operation. A Lessee employee
shall answer the local telephone number, or a recorded message and an
answering machine for messages shall be available to the caller. Lessee's
employees will be reasonably responsive to all callers and messages left, and
respond to customer complaints as outlined below.
H. Customer Complaint Resolution: Lessee shall institute a procedure for the
prompt resolution of customer complaints. In the event that County receives any
complaint arising from Lessee's operation, County shall immediately transmit
such complaint to the Lessee for resolution. Within five (5) business days of the
receipt of the complaint, Lessee shall provide the Director of Aviation a written
report of the complaint and its resolution, or of Lessee's attempts at resolution.
In addition, Lessee shall submit upon request of the County, a semi-annual or
annual report of all substantial complaints received by Lessee, including those
referred by County. Failure to resolve these complaints to the satisfaction of the
Director of Aviation shall be grounds for non -renewal of this Agreement.
At least once annually hereunder, Lessee 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, if necessary, specific areas in which
performance has been unsatisfactory and specific standards for satisfactory
performance.
1. Employee lot: The intent of employee parking shall be to operate on a
break-even basis, and to improve the employee parking area only to the extent
supportable by monthly fees. The employee parking lot must be maintained in
accordance with the standards outlined below in Maintenance and Repair. The
employee parking lot may not be used for storage of vehicles, nor to be used for
camping or overnight use at any time, by any party, with the exception of owned
or leased snow maintenance vehicles by the Lessee for exclusive use on the
Property.
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J. Maintenance and Repair. With respect to the maintenance and repair of the
Airport and related land areas and improvements, including the Property, the
County and the Lessee shall have the following obligations:
1. County's Obligation. County, at its expense, shall reasonably maintain
and keep in good condition, the following, specific areas as shown on
Exhibit "B." County shall also repair the specific areas as shown on
Exhibit "B" within a reasonable amount of time. County shall have
reasonable access to the Property as necessary or convenient to make
repairs required by this Section.
a) Maintenance and repair of all sidewalks and pedestrian
entryways and lighting, underground utility equipment (such as
wiring, conduits and ducts) for any booths and parking revenue
control equipment after such equipment has been installed by
Lessee, and any other equipment and improvements on the
Property for which Lessee is not responsible.
b) Snow removal on all sidewalks and pedestrian entryways
c) Removal of snow from Property from a central location in the
parking lots.
d) Landscaping and ground maintenance of areas surrounding the
Property.
e) Seal and patch all asphalt surfaces as necessary.
f) Trash pick-up from a central container and trash disposal.
g) Area and directional signs within and outside the Property.
2. Lessee's Obligations with respect to the Property:
a) Keep all revenue equipment, traffic control equipment and
signage in good repair and operating conditions. Repair, maintain,
clean and paint as needed all parking equipment and booths.
b) Perform housekeeping on the Property to keep it picked up,
clean and free of trash and debris.
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c) Repair any damages to the Property but only to the extent same
are caused by negligent and/or willful acts of employees, agents or
contractors, ordinary wear and tear, acts of others, acts of God and
casualty excepted. County will not be liable for any acts of others
or casualty associated with or arising out of the use of Lessee's
automated pay stations.
d) Perform snowplowing and salt and/or sand ice within the
Property and the ingress and egress lanes leading from and to
Airport circulation roads (as shown on Exhibit "B") on a timely basis
sufficient for safe and efficient operations. Push or plow snow to a
central location on the Property for County disposal.
e) Sweep and stripe all asphalt parking surfaces, and roll and
apply dust control to all gravel surfaces when and as necessary.
f) Provide general monitoring oversight to the parking Property, be
diligent to discover any dangerous conditions or suspicious
activities and, once discovered, promptly report any such activities
to appropriate law enforcement agencies.
g) Lessee shall not cause nor permit any dangerous or hazardous
condition or nuisance to exist related to the use and occupancy
granted herein.
h) In the event that the Property becomes in need of repairs within
the County's obligations, Lessee shall give immediate written notice
thereof to County and County shall be responsible for making any
such repairs within a reasonable amount time after delivery of such
written notice.
K. Modifications, Alterations and Improvements to Property. The Property
may be modified, altered or improved by the parties under the following
procedures, terms and conditions:
a) By County: The County, after reasonable notice to and
comment from Lessee, may make modifications, alterations or
improvements to the Property that do not result in permanent
unreasonable impairment of the Property or interference with the
conduct of Lessee's business without liability of any kind to Lessee
and Lessee shall co-operate with the making of same.
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b) By Lessee: Lessee shall make no modifications, alterations or
improvements to the Property without the prior written consent of
County and upon such terms and conditions as County shall
require, in its sole discretion. Additionally, Lessee shall leave all
existing parking equipment, including but not limited to all control
gates, the parking booth, and all equipment as listed in Exhibit "C",
in place. Said equipment may be rendered inactive during the trial
period, as described below in Paragraph K. k.
For any modifications, alterations or improvements to the Property
with respect to which County has given its written consent, Lessee
shall obtain any necessary land use approvals through the
established County land -use application/review process, at
Lessee's sole cost and expense. Lessee shall not cause or permit
any statutory claims or mechanic's liens to be filed against the
Property or against the Airline Terminal or the Airport or other
improvements by reason thereof and hereby does indemnify the
County against all costs (including attorney's fees) and liabilities
arising from such claims or liens.
For any such improvements or alterations to the Property made by
Lessee, the County shall, at the end of the term or the renewal
term, have the option to purchase any part of, or all of such
improvements at a fair -market value. Upon receipt of County's
notice of exercise of its option, Lessee shall have ten (10) days in
which to respond in writing with its calculation of fair -market value.
Said calculation shall be supported by a reasonable methodology
for determination of fair -market value. Should County object to this
calculation and the parties be unable to agree to fair -market value
within thirty (30) days of termination, the parties hereby agree that
said matter shall be referred to binding arbitration by a single
arbitrator selected under the then -current rules of the American
Arbitration Association.
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L. Other Operational Matters:
1. County's Obligations:
a) Regulation and enforcement of the Public Traffic Circle and the
Commercial Traffic Circle to assure that all public parking shall be
within the Property, and in every practicable way prevent such free,
unauthorized or illegal parking, including policing violators and/or
the erection of barricades.
b) County shall operate the Terminal in such a way as not to
unreasonably interfere with Lessee's operation.
2. Lessee's Obligations:
a) Furnish forms, uniforms and tools, pay station equipment, and
all office equipment, furniture, materials and supplies needed for
efficient operation of its business. This shall include trash
receptacles within the Property for use by Lessee's employees.
b) Contract for the provision of telephone services actually
incurred by Lessee in its parking operations hereunder at Lessee's
sole expense, and in its name; maintain and pay for such utility
serving the booth and revenue equipment. Lessee shall permit no
liens or claims against the Property arising from unpaid or disputed
utility bills and hereby does indemnify the County against all costs
(including attorney's fees) or liabilities arising from such liens or
claims.
c) Pursue negligence claims for damages caused by customers or
third parties.
d) Post parking rate signs at each entrance and exit, and at all pay
stations.
e) Promptly respond to customer complaints, and as described
above in Paragraph H.
f) Observe and abide by all applicable airport regulations.
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g) Pay promptly all taxes (excluding property taxes for the
Property), license fees and permit fees of whatever nature
applicable to its parking operations, 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.
h) Conduct its commercial activities in such a way as not to
unreasonably interfere with other permitted users of the Airport in
non-exclusive areas.
i) Lessee will be entitled to use of three (3) parking spaces in any
of the airport paid parking facilities at no charge, but only for
Lessee's business purposes.
j) Pay -in -Advance, Passive System: It is understood by County
and Lessee that the system of parking to be operated by the
Lessee is a pay -in -advance, passive system, as presented and
described in the Lessee's proposal submitted in response to the
County's Request for Qualifications/Request for Proposals for the
operation of the Airport Paid Parking Facilities issued December 1,
1998. Parking patrons will estimate the time they will be parked at
the Airport, pay for that time in advance, and the parking lots will
not be required to be gated at any entrances or exits.
If parking patrons have failed to pay in advance for parking
services, or underpaid for parking services, Lessee will issue a
"Parking Due Notice," in an envelope form approved in writing by
the Airport, which shall be placed on the vehicle and which
indicates the dollar amount of parking fees due. Patrons shall have
the option of paying parking fees due by inserting payment in the
provided envelope and depositing the payment in the lock box at
the exit to the Property, or mailing the payment within ten (10) days
to the address listed on the said notice.
k) Trial period: It is understood by County and Lessee that a pay -
in -advance, passive system of parking will be operated at the
airport paid parking facility for a trial period of May 1, 1999 to April
30, 2000. In the event that the County deems the pay -in -advance
system to not be in the best interest of the County at the end of the
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trial period, County may elect, at its sole discretion, to require
Lessee to operate a gated, pay -at -exit system of parking. This
request in no way affects any other conditions, financial or
otherwise, of this Agreement.
I) Equipment: Lessee will purchase and install at its sole expense
four (4) automated pay stations for use in the short and long term
parking lots, two (2) to be located in the long-term parking lot and
two (2) to be located in the short-term parking lot. These pay
stations shall be operationally consistent with the Schlumberger
pay stations operated by the City of Aspen, and as updated by the
City of Aspen during the term of this Agreement.
Said pay stations shall be able to accept cash, coin, and cards as
payments. Cards include, but are not limited to, all major US credit
cards and Aspen Smart Cards.
In addition, payment through the use of in -car meters issued by the
City of Aspen shall be an acceptable form of payment of airport
parking fees.
Lessee shall purchase secure, drop boxes for the exit gates of the
short-term and long-term lots for the deposit of parking due notices.
m) Accounting for and collection of revenues from Aspen Smart
Cards and in -car meters: It will be the responsibility of the Lessee
to develop procedures which satisfactorily collect revenues and
account for the transaction for airport paid parking facilities with
Aspen Smart Cards and in -car meters utilized by the City of Aspen.
It is understood that an audit of Lessee may also include that
portion of the City of Aspen's records pertaining to airport paid
parking facilities revenues, and that the City of Aspen has been
made aware of such requirements by Lessee.
n) Snow Plow Equipment: Lessee will purchase or lease a snow
plow truck which will be dedicated to the airport paid parking
facility. The truck will be kept on -site and will be operated by
personnel provided by Lessee. If, during the term or any renewal
term of this Agreement, should said truck become non -operable, or
there be abnormal amounts of snow beyond the capacity of
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Lessee's equipment to remove, Lessee will contract with a third
party plow company for the removal of snow.
o) Past -due collection procedures: In the event that there are
individuals' parking fees due to Lessee that are past due by thirty
days or more, Lessee will notify the County in writing of the license
numbers and the amount due.
Lessee, at its sole expense, will forward appropriate information on
all past due accounts to an outside agency. Said agency will
research the registered owner information for Lessee and send a
courtesy notice to the party having a past due account indicating
that a parking fee is still owed. The Director of Aviation, or his/her
designee must approve the form of the courtesy notice in writing.
The notice shall offer a toll -free telephone number for customers to
appeal their notice(s), and a fax number and e-mail address for
receipt of such appeals. Said telephone shall be answered in
person, or have a recorded message and an answering service for
messages shall be available to the caller.
Lessee will be responsible for the development of appeals criteria
for determining which notices will be upheld, reduced or voided,
and the Director of Aviation, or his/her designee, must approve the
appeals in writing.
No other collection activities including, without limitation, the
placement of outbound phone calls to customers or negative marks
on a parking violators' credit report may occur without the County's
prior express written permission. Should legal action be
substantiated by Lessee, the Lessee will consult with airport staff
prior to the commencement of any such legal activity.
p) Airport Administration Courtesy Validation Program: Lessee will
create, at its sole expense, a post -pay validation card to be used by
airport administration for its courtesy validation program for
customers conducting official airport business. The Director of
Aviation, or his/her designee must approve the format of this card
in writing. This validation card will be inserted into the parking due
notice on the vehicle, and deposited in the drop box at the exit.
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The airport administration courtesy validation program shall pertain
only to parking in the short-term lot.
q) Towing Policy: Lessee will adhere to all applicable state laws
for the towing of abandoned vehicles and the towing of vehicles for
punitive reasons. Lessee will develop procedures to be used for
punitive towing of vehicles, and the Director of Aviation must
approve these procedures in writing. This policy must include, at
minimum, notification by Lessee to airport administration of any
towed vehicles, whether for abandonment or punitive reasons, and
the circumstances specific to each towed vehicle.
r) Booting Policy: Lessee is specifically prohibited from installing
or causing to be installed vehicle boots on any vehicle parked in the
Property.
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VI. ASSIGNMENT.
A. Assignment Prohibited without County Consent. An assignment by
Lessee of this Lease or any right or obligation of Lessee, or of any substantial
interest in the ownership, management or financing of Lessee's business entity,
is expressly prohibited, except with the prior,express, written consent of County,
which consent shall not be unreasonably withheld.
An "assignment" hereunder shall include any transaction, by Lessee's act or
omission or by operation of law, creating rights or obligations in or affecting this
Lease that did not exist on the effective date of this Lease (or were not disclosed
to County before that date), however styled, including, as examples and without
limitation, a sublease, license (other than for vehicle parking on the Property),
sale, grant, conveyance, transfer, encumbrance, mortgage or pledge.
B. Assignment relating to Renewal Term. Notwithstanding any other
provision of this Agreement, Lessee's right to assign this Lease, as defined
below, shall be further restricted in three ways relating to a Renewal Term.
1. If the Lease is assigned during the Initial Term, the County reserves
the right to extinguish this Renewal Term; and
2. County shall have no obligation to accept or approve an assignment or
sublease, as defined herein, within the last year of the Initial Term or
during the Renewal Term; and
3. This Lease may not be assigned during the Renewal Term.
C. Standards and Procedures to Obtain County Consent
The determination by County of whether a proposed assignment is reasonable
under this Section may include consideration of factors including, without
limitation:
1. Whether Lessee is or has been in default under any of the terms or
provisions of the Lease.
2. Whether the proposed assignee can demonstrate acceptable levels of
relevant, successful business and financial qualifications and experience.
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3. Whether the assignment will be in compliance with established Airport
management goals and preferences including, without limitation, the
Airport's federal Disadvantaged Business Enterprise (DBE) goals.
4. Whether any new business use for the Property is being proposed
and, if so, what impacts the new use may have on the Airline Terminal
and the Airport.
5. Whether the proposed assignment is a technical assignment, in which
the Lessee/assignor (and its guarantors and sureties) will be relieved of
further liability hereunder, or a technical sublease, in which the Lessee
and the sublessee both continue to be bound by the terms of the Lease.
6. Whether, if the proposed assignee or sublessee, or any stockholder,
general partner or member thereof or venturer therein, is a corporation or
a limited liability company, any individuals with interests therein have
agreed to personally and unconditionally guarantee, in a form satisfactory
to County, the performance of all Sublease obligations.
7. As part of a proposed assignment transaction, County may reasonably
require from Lessee or the proposed assignee, as applicable, evidence to
a level that would be satisfactory to a commercial lender of the following:
a) Proof of Financial Resources. The proposed assignee or
sublessee and all required guarantors may be required to submit
financial statements prepared by state -licensed certified public
accountants that establish, to County's reasonable satisfaction,
financial ability to perform Lessee's obligations and otherwise to
succeed in the proposed business.
b) Proof of successful, relevant business experience.
c) Proof of business, financial and credit reputation of ownership
and management principals.
d) Reimbursement by Lessee to County of all costs and expenses
(including reasonable attorney's fees) incurred by County in
considering and approving Lessee's request.
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e) An audit of and full payment of all MAG, Percentage Override,
and Additional Rent to the effective date of the proposed
transaction.
8. Effect of Previous Assignments. Consent by County to one or more
previous assignments shall not operate as a waiver or restriction of
County's rights as to any subsequent assignments.
9. Validity of Assignment without County Consent. Any attempted
assignment by Lessee in violation of the terms and covenants of this
Section shall be void and a material breach of this Lease.
10. Lessee Acknowledgement. Lessee acknowledges that this Section
VI. C. was freely negotiated and is reasonable in all of the circumstances
of this Lease.
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VII. DEFAULT AND TERMINATION
A. DEFAULT
The standards and procedures for declarations of Default(s) under this Lease
and termination of Lessee's possessory rights under this Lease and/or of the
Lease itself shall be as follows:
1. Incidents of Default by Lessee. The following acts or omissions by
Lessee are agreed to be Incidents of Default:
a) Failure to make full and timely payments of MAG, Percentage
Override fees, Additional Rent, or other fees or charges due and
payable hereunder; or
b) The creation, maintenance, failure to correct or sufferance of a
dangerous or hazardous condition but only to the extent same are
caused by negligence, misconduct, or other fault of Lessee, its
agents or employees on or emanating from the Property; or
c) Failure to obtain, maintain in full force and effect and/or provide
proof of all required types, forms and a mounts of insurance; or
d) Failure to provide and maintain current and required
performance and payment surety and proof thereof; or
e) Making an assignment, conveyance or transfer of its rights and
obligations hereunder without the consent of County; or
f) Making or becoming subject to a voluntary or involuntary
petition for receivership or bankruptcy, declaration of insolvency or
assignment for the benefit of creditors; or
g) Failure to comply with any other obligation under this Lease and
Use Agreement.
2. Notice of Default. Upon the occurrence of an Incident of Default by
Lessee hereunder, County shall issue a written Notice of Default to
Lessee (and its surety, if applicable), which Notice shall specify the
Incident(s) of Default asserted and a cure(s) acceptable to County.
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3. Lessee's Right to Cure. Lessee shall have the right to cure an Incident
of Default, unless Lessee has abandoned the Property, in which case
Lessee shall be deemed to have waived any right to cure. As a condition
precedent to this right to cure, Lessee must provide Notice, promptly after
the effective date of the Notice of Default, to County of Lessee's intention
to cure and whether it agrees with the County proposed cure or has a
counterproposal. The time periods for cure, after the effective date of any
Notice of Default, shall be:
a) Within three (3) business days if the default is maintenance of a
hazardous condition or failure to maintain and/or prove required
insurance coverage(s); or
b) Within ten (10) calendar days if the default is failure to make full
and timely payments; or
c) Within twenty (20) calendar days if the default is in the
performance of any other obligation or conditions to be performed
under the provisions of this Agreement.
d) If, in the discretion of County, a cure acceptable to County is
promptly undertaken and diligently prosecuted by Lessee and the
cure required cannot reasonably be completed within the foregoing
time periods, County may, upon timely request and proof of such
mitigating circumstances by the Lessee, extend the period to cure
by a reasonable time.
In the event of multiple Incidents of Default, the cure periods above
shall be concurrent, not consecutive.
4. County's Right to Cure. If Lessee should fail to cure any default
hereunder within the time permitted, or if a dangerous or emergency
situation exists at any time, County, without being under any obligation to
do so and without waiving such default, may make such payment and/or
remedy such other default for the account of Lessee (and enter the
Property for such purpose), and Lessee shall be obligated, and hereby
agrees, to pay as Additional Rent, all reasonable costs, expenses and
disbursements (including reasonable attorneys' fees) incurred by County
in taking such remedial action, but only to the extent same are caused by
negligence, misconduct or other fault of Lessee, its agent or employees.
Such action taken by County may include commencing, appearing in,
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defending, or otherwise participating in any action or proceedings, and
paying, purchasing, contesting, or compromising any claim, right,
encumbrance, charge or lien with respect to the Property, but only to the
extent same are caused by negligence, misconduct or other fault of
Lessee, its agents or employees.
5. County's Rights Upon an Uncured Default. If the Property has been
abandoned by Lessee or if an Incident(s) of Default noticed as provided
herein remains uncured after the cure period specified or extended,
County, at its option and in its sole discretion, then may either terminate
Lessee's possessory rights under this Lease or terminate the Lease itself
and all of Lessee's rights or both in sequence, by Notice to the Lessee.
6. Notices of Non -Compliance or Satisfactory Performance. In the event
that County comes to believe that Lessee is not fully and faithfully in
compliance with the terms and conditions of this Agreement and, in the
County's discretion, such non-compliance is deemed not to rise to the
level of an Incident of Default, County may issue a Notice of Non -
Compliance to Lessee on a form established by the Airport. Lessee
agrees to promptly undertake such action as may be reasonable and
appropriate to remedy the situation giving rise to any such complaints
and/or any operational deficiencies noted by County. If the circumstances
that are the basis for the Notice are not resolved to the Airport's
satisfaction as provided in the Notice, the fact of and content of such
Notice(s) may be used in future procurements, or in responding to
inquiring from third parties concerning Lessee.
If Lessee has been a satisfactory operator, it is entitled to Deceive, upon its
request at the end of any Lease year, a Notice of Satisfactory
Performance on a form established by the Airport.
7. Termination of Lessee's Possessory Rights. If County gives Notice of
Termination of Lessee's Possessory Rights due to Lessee's default
hereunder, the following substantive and procedural elements shall apply:
a) County shall re -take possession. Lessee shall immediately and
peacefully surrender the Property to the County and, if Lessee fails
to do so, County, without prejudice to any other remedy which
County may have for possession, damages, or arrearages in rental,
may enter upon and take possession of the Property through legal
process or, if no individual person is then actually on or about the
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Property, without use of legal process. Thereafter County may
possess, hold and use the Property and may alter all locks and
other security devices thereon.
b) Unless County so elects as provided, no such termination of
Lessee's possessory rights shall cause a termination of this Lease
or otherwise relieve Lessee's liability and obligations under this
Lease, and such liability and obligations shall survive any such
termination of possessory rights.
c) In the event of any such termination of Lessee's possessory
rights due to Lessee's default hereunder, Lessee shall continue to
pay to the County all monthly payments of all MAG and Percentage
Override, and any Additional Rent required to be paid by Lessee to
County during the remainder of the Term until the date of expiration
of the Term, adjusted as follows:
(1) Plus all such amounts accrued prior to repossession;
(2) Plus expenses of County arising from repossession;
(3) Minus amounts received by County through re -letting.
(4) In no event shall Lessee be entitled to any excess of any rental
obtained by reletting over and above the rental herein reserved. Actions
to collect amounts due by Lessee to County as provided in this Section
may be brought from time to time, on one or more occasions, without the
necessity of County's waiting until the expiration of the Term.
d) County may sub -let or re -let. At any time after such re -taking of
possession by County, County may sublet or relet the Property or
any part, in the name of the Lessee or otherwise for such term
(which may be greater or less than the balance of the term of this
Lease) and on such conditions as the County, in County's absolute
discretion, may determine, and may collect and receive the rents
therefor.
In the event that County shall have taken possession of the
Property pursuant to the authority herein granted, then County shall
have the right to keep in place and use all of the trade fixtures,
leasehold improvements, furnishings and equipment of the
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Property, including that which is owned by or leased to Lessee, at
all times prior to any foreclosure by County or repossession by
County or third party having a lien thereon.
County also shall have the right to remove from the Property
(without the necessity of obtaining a writ, warrant, bond or other
legal process) all or any portion of such trade fixtures, leasehold
improvements, furnishings, equipment and other property located
thereon and place same in storage at any location within fifty (50)
driving miles of Pitkin County, and in such event, Lessee shall be
liable to County for reasonable costs incurred by County in
connection with such removal and storage and shall indemnify and
hold County harmless from all loss, damage, cost, expense an
liability in connection with such removal and storage.
County also shall have the right to relinquish possession of all or
any portion of such property to any person ("Claimant") claiming to
be entitled to possession who present to County a copy of any
instruments represented to County by Claimant to have been
executed by Lessee (or any predecessor of Lessee) granting
Claimant the right under various circumstances to take possession
of such property
The rights of County shall be in addition to any and all other rights
which are created elsewhere in this Lease or which County has or
may hereafter have at law or in equity; and Lessee stipulates and
agrees that the rights herein granted County are commercially
reasonable.
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B. TERMINATION
1. Termination of the Lease. If County gives Notice of Termination of the
Lease due to Lessee's default hereunder, the following substantive and
procedural elements shall apply:
a) County may elect to terminate this Lease by Notice of
Termination of the Lease to Lessee either: immediately after an
uncured default; or at any time following the termination of
Lessee's possessory rights due to Lessee's default hereunder.
b) Upon such Lease termination (or in the event a court shall
otherwise construe this Lease as terminated following Lessee's
loss of its possessory rights hereunder), County shall have and
exercise all rights of ownership of the Property, and Lessee shall
pay to the County in one payment of the sum of all MAG and
Percentage Override, and Additional Rental and other
indebtedness to County accrued to date of such termination, plus,
for liquidated damages for Lessee's default, computed at an
amount equal to the present value of the total MAG that would
have become due during the remainder of the Term, but for
termination of this Lease, less any amounts actually received or
due to County as a result of re -letting and the amount of rental loss
for the same period that Lessee proves could have been avoided
through the exercise of such mitigation efforts as are legally
required of County. If such sum is not paid to County on the
termination date, said sum shall bear interest at the Default Rate
until paid. For purposes of this section, "present value" shall be
computed by discounting the amount in question to present worth
at a discount rate equal to one percentage point above the discount
rate then in effect at any commercial bank then with an office in
Pitkin County.
c) Not a Surrender. Exercise by County of any one or more
remedies herein granted or otherwise available shall not be
deemed to be an acceptance of surrender of the Property by
County, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written
agreement of Lessee and County. No alteration of locks or other
security devices and no removal or other exercise of dominion by
County over the property of Lessee, or others at the Property shall
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be deemed unauthorized or constitute a conversion or a Lease
termination. Lessee hereby consents, after any Event of Default, to
the aforesaid exercise of dominion over Lessee's property within
the Property. All claims for damages by reason of such re-entry
and/or repossession and/or alteration of locks or other security
devices are hereby waived, as are all claims for damages by
reason of any distress warrant, forcible detainer proceedings,
sequestration proceedings or other legal process.
d) Property Left on Property. Any property of Lessee, or of
anyone claiming under, by, or through Lessee, which is left on the
Property more than fifteen days after expiration of the Term or
termination of possessory rights shall, after notice of removal
thereof by County, be conclusively deemed abandoned, and
County may keep, use, remove, store, sell, destroy, discard, or
otherwise deal with it in County's absolute discretion without liability
of any sort to Lessee or anyone claiming under, by, or through
Lessee.
e) Costs of Default. In case of any Event of Default, Lessee shall
also be liable for and shall pay to County, in addition to any sum
provided to be paid above, all costs, expenses and fees associated
with providing Notice of the Default and enforcing County's rights
including, without limitation, the following: the reasonable costs or
removing and storing or otherwise disposing of Lessee's or other
occupant's property; the reasonable costs of cleaning, repairing,
altering, remodeling or otherwise putting the Property into condition
acceptable to a new Lessee or Lessees; advertising costs; all
reasonable expenses incurred by County in enforcing or defending
County's rights and/or remedies, including reasonable attorneys'
fees; and a sum equal to $75 for each hour that any employee or
agent of County, spends in connection with obtaining the right to
relet, rendering suitable for reletting, and attempting to relet the
Property or any part thereof.
fi County's Duty to Relet. In the event of termination of
possessory rights or repossession of the Property for an Event of
Default, County shall not have any greater obligation to relet or
attempt to relet the Property, or any portion thereof, or to collect
rental on the Property after reletting than is required by applicable
law with respect to mitigation of damages; and in the event of
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reletting, County may relet the whole or any portion of the Property
for any period, to any Lessee, and for any use and purpose.
g) Default by County; Lessee's Remedies. In the event of any
default by County, Lessee's exclusive remedy shall be an action for
damages, but prior to any such action Lessee will give County
written notice specifying such default with particularity, and County
shall thereupon have 20 days (or such longer period as may be
necessary in the circumstances) in which to cure any such default.
In the event of County's uncured default hereunder, Lessee shall
have the option to terminate this lease with ninety (90) days notice.
All obligations of Lessee hereunder will be construed as covenants,
not conditions.
h) Remedies Not Exclusive. The aggrieved party shall have such
other and further legal and equitable rights and remedies as may
be provided by law, including damages.
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VIII. GENERAL PROVISIONS
A. Coordination with other Airport Users. County and Lessee acknowledge
that the County has, and Lessee may have, rights and obligations arising from
various third -party agreements with other Airport users. County and Lessee
agree to cooperate with each other to effectuate these third -party agreements,
so long as such agreements are not illegal, impossible or do not unreasonably
interfere with Airport operations or conflict with the rights and obligations of the
various parties hereunder. If either County or Lessee shall make a demand
upon the other for cooperation hereunder, the party making the demand shall
first provide copies of any such agreements to the other party.
B. Surrender of Property/Lessee's Personal Property. On or before the date
and time of the expiration or termination of the Initial or Renewal Term of this
Lease, Lessee shall: surrender the Property to County in good condition and
repair, ordinary wear and usage and acts of God excepted; and remove all of
Lessee's personal property, trade fixtures, equipment or improvements
removable by prior agreement with County from the Property; and repair any
damage to the Property caused by such removal. Any property of Lessee, or
Lessee's designee, which is left on the Property more than thirty (30) days after
expiration of the Term shall be conclusively deemed abandoned, and County
may keep, use, remove, store, sell, destroy, discard, or otherwise deal with it in
County's absolute discretion without liability of any sort to Lessee.
C. Compliance with Applicable Laws and Regulations. In connection with its
occupancy and use of the Property, the Lessee shall:
1. Comply with all applicable laws, rules and regulations of the United
States of America (including, especially, the U.S. Department of
Transportation and the Federal Aviation Administration), the State of
Colorado and the County of Pitkin (including, especially, the Airport, the
Sheriffs Department, the Public Works Department and the Community
Development Office) 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.
2. Although Lessee is not an aeronautical operator and, as such, is not
directly regulated by the FAA, Lessee acknowledges that the Airport is
heavily regulated by the FAA with respect to operation, financing and
development of the Airline Terminal.
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3. Lessee acknowledges that Pitkin County has the continuing authority
to enact general legislation pursuant to its power to protect the health,
welfare and safety of its citizens, as well as the continuing authority to
enact Airport regulations.
4. Lessee will comply with the notification and review requirements of
Part 77 of the FAA's Federal Aviation Regulations (FARs) in the event any
future structure or building is planned for the Property, or in the event of
any planned modification or alteration of any present or future structure or
building situated on the Property.
5. Lessee will 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 Part 21 of the Regulations of the U.S.
Department 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.
6. Lessee will comply with the requirements for parking tenants of the
Americans with Disabilities Act (ADA).
7. Lessee will comply with the requirements for Airport tenants of the
Airport's program and goals to increase opportunity for Disadvantaged
Business Enterprises (DBE).
8. Lessee shall pay all business/personal property taxes assessed
against Lessee's personal property situated upon the Property and all
other taxes lawfully assessed against Lessee by reason of Lessee's use
and occupancy of the Property in the conduct of Lessee's business.
9. Compliance with FAA Regulations: In compliance with FAA
regulations, this Agreement is subject to the requirements of the U.S.
Department of Transportation's regulations, 49 CFR Part 26, subpart G.
The Lessee agrees that it will not discriminate against any business owner
because of the owner's race, color, national origin, or sex in connection
with the award or performance of any agreement, management, contract,
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or subcontract, purchase or lease agreement, or other agreement covered
by 49 CFR Part 26, subpart G.
The Lessee agrees to include the above statements in any subsequent
concession agreement or contract covered by 49 CFR Part 26, subpart G,
that it enters and cause those businesses to similarly include the
statements in further agreements.
D. Lessee's Personal Property/Trademarks. All personal property,
equipment, furnishings, decorations and trade fixtures placed upon the Property
by Lessee shall be at Lessee'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.
Lessee 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,
tradenames, trademarks, logos or slogans to be used by it in its operations under
or in any way connected with this Agreement. Lessee 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 operations of Lessee this Agreement.
E. Substitution ofPitkin County Airport Facilities. County may build or
provide, or cause to be built or provided, substitute facilities at the Airport. In the
event of the construction and occupancy of new or substitute facilities at the
Airport during the term of this Agreement, the following shall apply:
1. County agrees to set aside space for airport paid parking facilities for
use of Lessee.
2. Lessee agrees to relocate operations from the Property to the new or
substituted facilities and to thereafter conduct its operations therefrom.
The new or substituted facilities shall be comparable to the previous
facilities or better in terms of size, Property and finish, all in the
reasonable discretion of the County.
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3. Upon such relocations, County shall have the right to demolish or use
the existing commercial airline terminal building or other buildings or
facilities located on the Property as it sees fit.
4. The fees provided for in this Lease shall be subject to Equitable
Adjustment to reflect the substitution of space for the existing terminal
building and facilities located on the Property. In the event County and
Lessee are unable to agree to such adjustment, then such adjustment
shall be determined by a qualified real estate appraiser selected by the
mutual agreement of County and Lessee, with the appraisal costs to be
shared equally by them.
5. Except as modified by the substitution of facilities and the fee
adjustment as provided for this Lease shall continue in full force and effect
without change or modification until the expiration or termination of the
Lease term.
6. If, in the opinion of County, the Property shall be wholly or partially
required for other operations of the Airport or if the use of the Property
should be changed or abated by reason of other operations of the Airport,
then the following shall apply:
a) County shall substitute for the Property another area at the
Airport of equivalent size and with comparable facilities and shall,
at County's expense, provide thereon facilities reasonably
comparable to the facilities existing on the Property, including, but
not by way of limitation, the buildings, structures, paved areas,
vehicle parking areas, utilities, and other improvements, either by
the relocations of the existing facilities and/or by the construction of
new facilities.
b) Lessee agrees to accept such other area at the Airport and the
facilities to be provided thereon by County in substitution for the
Property and agrees to promptly relocate its operations to such
other area at its expense.
c) County shall schedule the preparation of such substituted area
and shall effect such substitution and relocations of the Lessee's
operations in such manner as shall not result in the unreasonable
interruption of the conduct of Lessee's operations.
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F. Destruction of Buildings and Other Improvements. If the buildings and
other improvements upon the Property shall be rendered untenantable by fire or
other casualty, County shall, at County's cost (subject to and secondary to
Lessee's obligation, if any, to provide fire and casualty insurance for the
Property, as provided below), restore and repair the same to tenantable
condition as speedily as possible and the fees and charges for the occupancy of
the untenantable space shall be abated, 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 to the extent such fire or other casualty shall be caused by the
intentional acts or negligent acts or omissions of Lessee, its agents, employees,
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. 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.
G. Rights of Seizure. County shall not be liable in any respect to Lessee in the
event of any seizure of all or any part of the Property, 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 fees
provided hereunder shall abate during such period of seizure to the extent that
such seizure shall interfere with Lessee's ability to conduct its business upon the
Property.
H. Relationship of Parties. It is the intent and agreement of the County and
the Company that they shall have the relationship respectively of Lessor/Lessee
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 Lessee upon the Property except to the extent any claims are
caused by the negligence, misconduct or other fault of County, its agents or
employees or for any indebtedness incurred by Lessee in the operation of its
business on the Property except to the extent any claims are caused by the
negligence, misconduct or other fault of County, its agents or employees or for
the claims of third parties against Lessee in the conduct of its business except to
the extent any claims are caused by the negligence, misconduct or other fault of
County, its agents or employees.
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In addition, County shall not be liable in any manner to the Lessee for any
damages the Lessee may incur due to the inability of the County to deliver
possession of the Property, or any part thereof, to the Lessee for reasons
beyond the reasonable control of the County and Lessee will not be liable for
rent until Lessee takes possession of Property.
1. Non -Liability of County's Agents and Employees. No official, agent, or
employee of County shall be personally liable to Lessee in the event of any
default or breach hereunder by County.
J. Notices. All notices required or authorized to be given hereunder shall be in
writing and shall be served upon the entitled party either by personal delivery to
such party or by certified mail, return receipt requested, addressed to such party
at its address appearing on the signature page of this Lease or at such other
address as either party may so notify the other party of in writing. Any such
notice shall be deemed to have been received on the date so delivered
personally to the entitled party or three (3) business days after the same has
been properly deposited in the United States mail, with postage fully prepaid.
K. Representations of Lessee. Lessee represents and warrants to County as
follows:
1. Lessee, and those individuals executing this Lease on behalf of
Lessee, represent and warrant that they are familiar with Section 18-8-
301, et seq. of the Colorado Revised Statutes (Bribery and Corrupt
Influences) and Section 18-8-401, et seq. of the Colorado Revised
Statutes (Abuse of Public Office) and that no violations of the provisions
are present.
2. Lessee, and those individuals executing this Lease on behalf of
Lessee, represent and warrant that to the best of their knowledge no
employee of Pitkin County has personal or beneficial interest whatsoever
in this Lease or in the business to be conducted upon the Property by the
Lessee.
L. Entire Agreement/Merger. This Lease contains the entire agreement of the
parties and there have been no oral or written promises, representations or
agreements, either express or implied, except as expressly set forth herein. Any
and all prior agreements or understandings between the parties are expressly
agreed to have merged.
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M. No Oral Modifications. This Lease 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 the designee specified in writing; provided, however, that
all matters affecting material terms of this Agreement, including term, fees and
charges and use of Property by Lessee, 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.
N. No Waiver. The failure of either party hereto to exercise any right or remedy
hereunder shall not be deemed a waiver or a waiver of the right to 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 shall be effective unless in
writing signed by the party.
O. No Presumption Against Drafting Party. The parties agree that this
Agreement was negotiated by the parties mutually, that each has had adequate
opportunity to review this Agreement and to consult with legal and other counsel,
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.
P. Attorney's Fees. If either party to this Agreement incurs attorney's fees
and/or costs in connection with the declaration of a Default or any other legal
proceeding to interpret, protect or enforce any of its rights hereunder, the party
prevailing in such proceeding shall be entitled to recover its reasonable
attorney's fees and costs in connection with such proceeding.
Q. Governing LawNenue. This Lease 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.
R. Binding Effect. This Lease shall be binding upon and shall inure to the
benefit of the parties hereto and to their properly qualified successors and
assigns.
S. Captions. The captions and such headings in this Lease are for organization
purposes only and shall not be construed to have independent substantial
meaning; the captions shall be construed in the context of the entire Agreement.
T. Duplicate Originals; Recorded Summary. This Lease shall be executed in
duplicate originals, with one original to be held by each party. Either party, at its
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expense, and after reasonable advance notice to the other, may file a duplicate
original Lease or an accurate summary thereof in the real estate records of the
Pitkin County Clerk & Recorder.
U. Authority of Lessee's Representative. As an inducement to the County to
execute this Agreement, the undersigned officer of Lessee represents that
he/she is expressly authorized to execute this Agreement and to bind Lessee to
the terms and conditions hereof and acknowledges that the County is relying on
this representation, authorization and execution.
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APPROVED BY BOCC
ON y/y 99
COUNTY:
The Board of County
Commissioners of
Pitkin County CO
r
By:
Leslie Lamont, Clj,i
./-ilaqq7
F OY.
T:
Pit in County Clerk
S al
County's Addresses:
c/o County Manager
506 E. Main Street
Aspen, CO 81611
er on
cc: Director of Aviation
0233 E. Airport Rd., Suite A
Aspen, CO 81611
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LICENSEE:
AMPCO System Parking
Date: ,,f 49, l999
ATTEST:
)1W.
Corporat- Secretary
Licensee's Address:
For receipt of mailed notices
hereunder:
'nice President & Regional Manager
Ampco System Parking
1325 Fourth Avenue, Suite 910
Seattle, WA 98101
Q\home\WORD\SUE\CONTRACT\LANDSIDE\PaidPark\New PAID PARK contract.DOC
RECOMMENDED FOR APPROVAL:
Suza'niye Konchn, County Manager
Scott Smith, A.A.E. Dir. of Aviation
APPROVED AS TO FORM:
APPROVED AS TO BUDGET:
Thomas Oken, Admin Svc Dir
APPROVED BY RISK:
1/77
Hilary Smit
Risk Manager
_gx
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Date: 4///q9
Date: obi/
Date: 40R
Date: 103/1 /
Date:. / 7 ' 91
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