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SIGNATURE
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G LICENSE AND USE AGREEMENT ^
KODAK STICKER MAGIC MACHINE STATION
THIS LICENSE AND USE AGREEMENT made as of the date last below signed, is by and
between the Board of County Commissioners of Pitkin County, Colorado, a Colorado home-
rule county ("County") and Lewis Enterprises, a Colorado Licensee ("Licensee"):
WHEREAS, the County is the owner, sponsor, and operator of the Aspen/Pitkin County
Airport (Sardy Field), located in Pitkin County in the vicinity of Aspen, Colorado (hereinafter
the "Airport"), at which it has made available certain public airfield aviation terminal and
facilities, certain areas for public use, certain areas for exclusive and non-exclusive
commercial use subject to permit and certain reserved areas; and
WHEREAS, the County has the authority to operate and manage the Airport, to regulate
commercial activities at the Airport and to lease and license space thereon, pursuant to, inter
alia, C.R.S. 30-11-107, 30-15-401, 30-35-201/202, 41-4-101 et seq., as amended, Title 10 of
the Pitkin County Code, as amended, and Article 1, Section 8.7 of the Pitkin County Home
Rule Charter; and
WHEREAS, Licensee is engaged in the business of providing Kodak Sticker Machines, in
which service and business it desires to occupy and use some of the said location and facilities
of the Airport for commercial purposes; and
NOW, THEREFORE, for and in consideration of the mutual covenants, terms and conditions
contained herein, the County and Licensee do mutually undertake and agree as follows:
1. Granting of License
1.1 The County grants to Licensee, during the term of this License, the right to
operate one (1) Kodak Sticker Magic Machine (the "Sticker Machine") in the Airport main air
carrier terminal facilities, in the location (the "Location") and under the terms and conditions
hereinafter described. This right shall be an exclusive right, subject only to present and future,
state and Federal legislation, regulation and case law affecting the County's power to grant
such exclusive rights.
1.2 Nothing herein shall be construed to prevent Licensee from proposing to enlarge
and/or relocate its licensed area or from bidding/proposing on further permitted Sticker-type
concession/machine operations.
1.3 The County also grants the rights of ingress and egress to the Location and the
right to use the public areas of the terminal, so long as such rights do not interfere with the
rights of other lessees, licensees or permittees of the terminal, the traveling public or the safe
and efficient operation of the terminal.
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2. Term. The term of this License and Use Agreement shall commence at 6:00 a.m. MST
on December 1, 2001, and expire at 10:00 p.m. MST on November 30, 2002, unless earlier
renewed or terminated.
2.1 Renewal. The County may, if it so desires, provide the Licensee with an
annual review of its performance under this Agreement to be delivered ninety (90) days prior
to the anniversary date, that anniversary date being November 30, 2002. If no such review
indicating unsatisfactory performance is provided in writing within sixty (60) days prior to any
anniversary date, Licensee's performance shall be deemed to have been satisfactory for the
prior year.
2.2 At the option of the County and in mutual agreement with the Licensee and
provided Licensee is not in breach and has performed in a satisfactory manner acceptable to
the County, the County shall have the option to renew this Agreement under terms and
agreements acceptable to the County for two sequential additional one (1) year term.
2.3 The County's exercise of its right of renewal shall be exercised by delivery of
written notice to the Licensee thirty (30) days prior to the expiration of the term.
3. License Fees/Payments/Security
3.1 The fees and charges for the occupancy and use of the Location as marked on
the attached Exhibit "A" for the term of this License and Use Agreement shall be due and
payable, as follows:
3.1.1 The Licensee agrees to pay as compensation hereunder for the rights and
privileges herein granted a monthly commission fee of 20% of the reported total monthly gross
revenues described in this agreement.
3.1.2 No deduction shall be allowed for uncollected or uncollectible credit
accounts.
3.1.3 The monthly payment as provided for in Section 3.1.1 or any partial
months shall be considered delinquent if not received by the fifteenth (15th) day of the
following month. If the fifteenth (15th) day of the month is a Saturday, Sunday or legal
County holiday, that payment shall be delinquent if not received on the next business day. The
monthly payment shall be accompanied with a detail summary report that accurately lists the
number of transactions processed through the Sticker Machine. The report must show the
daily activity which will then be totaled for the month and 20% of that monthly gross total will
be the monthly rental due as described in Section 3.1.1.
3.1.4 The Licensee agrees to provide a security deposit in a form of an
irrevocable Letter of Credit or a cash deposit in a form of a cashiers check; in the amount of
$600.00 that is equivalent to three months of the 20% of the projected annual minimum gross
revenues of$12,000.00.
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All payments shall be made to the Pitkin County Treasurer, 506 East Main
Street, Suite 201, Aspen, Colorado, 81611. All delinquent payments shall accrue default
interest on any unpaid and delinquent balance on the fifteenth (15th) day of every month so
delinquent at the rate of two percent (2%) per month on the unpaid balance, compounded
monthly; default interest shall be due and payable without demand with the next regular
payment due. Amounts received shall be credited first to accrued interest and then to accrued
and current payments due.
4. Machine Area and Use. The County shall provide the Licensee with the exclusive right
to occupy and use the area(s) as is depicted on Exhibit "A", attached hereto and incorporated
herein by reference, for the sole purpose of operating a Sticker Machine concession, as set out
herein.
5. Hours of Operation. Licensee shall provide a machine that is adequately equipped,
provisioned, and operational to serve the market demand seven (7) days per week throughout
the year at those same hours that the commercial terminal building is open for business.
6. Level of Service. Machine maintenance services shall comply with all Federal, state
and county regulations and shall be conducted in a courteous and helpful fashion.
6.1 The licensed area and machine in the terminal location shall be maintained in a
clean, attractive and first-class manner by the Licensee.
6.2 At all times, the machine shall be maintained in a good and operational
condition. If at any given time the machine is not operational for a two weeks period or
fourteen (14) consecutive days within any Thirty (30) day period, the County shall have the
option to cancel the contract and remove the machine from the premises.
6.3 All other commercial activities by the Licensee are prohibited unless such
activities have the prior written approval of the Director of Aviation.
7. Quality of Service/Complaint Resolution/Performance Review by County.
7.1 Licensee acknowledges that the County has an interest in resolving any
complaints arising from the Licensee's operations, both as Licensor and owner/operator of a
public Airport. Based on the foregoing, in the event that County shall receive any complaint
arising from the Licensee's operations, the County shall immediately transmit such complaint
to Licensee for resolution.
7.2 Within ten (10) business days of the receipt of written notification of a
complaint, whether submitted by the County or by a patron to Licensee, Licensee shall provide
to the Director of Aviation a written report of the complaint and its resolution or of Licensee's
attempts at resolution.
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7.3 In addition, Licensee shall submit a six month report to the Director of Aviation
that describes all complaints received by Licensee and response made by Licensee to correct
the deficiencies, including those complaints referred by County. The report shall be submitted
within 30 days after the initial six months of the lease term and every six months thereafter if
the lease is extended. Failure by Licensee to resolve a majority of any complaints to the
satisfaction of the Director of Aviation shall be cause for termination hereof. The Director of
Aviation shall promptly respond to complaints by the public or submitted by the Licensee.
7.4 Licensee's employees shall be safety-conscious, environmentally-sensitive,
helpful, courteous, and dressed appropriately at all times, consistent with acceptable customer
relations practices at first-class U.S. resort and conference destination.
8. Reserved Rights of County. County reserves the following rights with respect to the
Location and the uses and operations to be conducted thereon by Licensee.
8.1 County reserves the right to unimpeded access over and across the Location;
provided that County shall not, in the exercise of this reserved right, unreasonably interfere
with Licensee's use of the Location. County shall be entitled to enter upon the Location and
into the buildings and other improvements thereon, in a reasonable time and manner consistent
with the purpose of the entry and inspection, for the purpose of inspecting the same, ensuring
compliance with the terms of this License, preventing waste or loss, responding to emergencies
or complaints or enforcing any of County's rights hereunder.
8.2 County reserves, for the use and benefit of the public, the right of flight for the
passage of aircraft in the air space above the surface of the Location, together with the right to
cause in and around said air space such noise as may be inherent in the operation of aircraft
utilizing the Airport.
8.3 County reserves the right to protect the aerial approaches of the Airport against
obstruction, including the right to prohibit Licensee from erecting, or permitting to be erected
or maintained, any building or other structure or obstruction on the Location which would, in
the discretion of the County, limit the aeronautical usefulness of the Airport or constitute a
hazard to aviation.
8.4 County reserves the right, during the time of war or national emergency, to
lease the Airport or any part thereof, including the.Location or any part thereof, to the United
States Government for military purposes, and, in the event of such lease to the United States
Government for military purposes, the provision of this License shall be suspended insofar as
such provisions may be inconsistent with the provision of the lease to the United States
Government.
8.5 County reserves the right to subordinate the provisions of this License, without
prior notice to Licensee, to the provisions of any existing or future agreement between the
County and the United States Government relative to the operation, maintenance or
development of the Airport which has been or may be required as a condition precedent to the
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expenditure of Federal funds for the development, maintenance or operation of the Airport
and, if such an agreement is entered into between the County and the United States
Government, the provisions of this License shall be suspended and/or automatically modified
insofar as such provisions are inconsistent with the provisions of the agreement with the United
States Government. If, by reason of any agreement with the United States Government as
aforesaid, it becomes necessary to modify, relocate or remove any improvements or other
structures situated on the Location, the Licensee agrees to modify, relocate or remove any such
improvements or structures as directed by County and County shall reimburse Licensee for the
reasonable cost and expense thereof.
8.6 County reserves the right to direct, in its sole discretion, all activities of the
Licensee at the Airport in the event of an emergency.
8.7 County reserves the right to further plan, develop, improve, remodel and/or
reconfigure the Airport, including the Location, the terminal building, and existing vehicle and
pedestrian traffic patterns, and parking lots as County deems appropriate without interference
or hindrance by the Licensee, and County shall have no liability hereunder to Licensee by
reason of any interruption to Licensee's operations on the Location occasioned by such County
activities; provided, however, that County shall consult in advance with Licensee on such
changes and if Licensee shall be unable to conduct reasonably normal seasonal business
operations on the Location by reason of any such County activities, then the fees hereunder
shall be equitably adjusted during the period of such interruption.
8.8 The County reserves the right, in its sole discretion, to enter into agreements for
the financing or re-financing of the airport and Licensee agrees to cooperate in providing
information to prospective lenders and in providing estoppel certificates, if so requested.
8.9 County reserves the right to prohibit any commercial or non-commercial activity
by any party on the Airport, which activity is not expressly permitted in writing.
8.10 County reserves the right to establish and enforce reasonable rules and
regulations for the conduct of activities and uses permitted herein and also to promulgate
minimum standards for the conduct of commercial activities related hereto including, without
limitation, minimum hours of operation if the County determines that the needs of the traveling
public are not being met.
8.11 County reserves the right to refer all development proposals hereunder through
the established County land-use application/review process, with costs and fees thereof to be
paid by the proposed developer.
9. Acceptance of Location. The parties acknowledge that Licensee accepts the Location
on an "as is" basis.
9.1 Use of Location. Licensee shall have the exclusive right to use and occupy the
Location solely for the purpose of maintaining a Sticker Machine Location as defined herein.
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10. Coordinating with other Airport Users. County and Licensee acknowledge that each
has rights and obligations arising from various third-party agreements with other Airport users.
County and Licensee agree to cooperate with each other to effectuate these third-party
agreements, so long as such agreements are not illegal, impossible, or do not unreasonably
interfere with Airport operations or the rights and obligations of the various parties. County
and Licensee acknowledge their respective obligations as signatories under the following
Agreements:
10.1 That certain agreement for paid parking services between Pitkin County and the
commercial parking services licensee;
10.2 Those certain agreements for commercial ground transportation including taxis,
limousines, and buses;
10.3 Those certain agreements for on, or off-airport commercial car rental
companies;
10.4 Those certain agreements with the scheduled commercial airlines;
10.5 That certain Agreement between Pitkin County and the airport restaurant
licensee;
10.6 That certain Agreement between Pitkin County and the airport gift shop
licensee;
10.7 That certain Agreement between Pitkin County and the commercial terminal
building advertisement/marketing licensee;
10.8 Such further and other agreements as the County may amend or enter into from
time to time in the normal operation of the airport, provided there are no conflicts with the
terms of this Agreement, and provided that Licensee shall, upon request, be provided with
copies of any agreements that are connected to this obligation to cooperate, as set forth herein.
11. Compliance with Applicable Laws and Regulations. In connection with its occupancy
and use of the Location and the conduct of its operation thereon, the Licensee shall:
11.1 Comply with all applicable laws, rules and regulations of the County of Pitkin,
the State of Colorado, and the United States of America and any and all departments and
agencies thereof, as the same way now exist or may be hereafter promulgated or amended
from time to time.
11.2 Licensee agrees it will use the premises herein described in accordance with all
rules and regulations adopted by the County, or its Director of Aviation, for the management,
operation and control of the Airport, either promulgated by the County or said Director of/A
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Aviation on its or his own initiative or by or in compliance with regulations or actions or any
Federal agency authorized to regulate interstate flights to and from said Airport.
11.3 Not discriminate against any person or class of persons by reason of race, color,
sex, creed, religion, handicap or national origin in providing any services or in the use of any
facilities provided for the public in any manner prohibited by Title 49, Code of Federal
Regulations, Subtitle A, Part 21 of the Regulations of the Office of the Secretary of
Transportation, and shall comply with the letter and spirit of the Colorado Anti-Discrimination
Act of 1957, as amended, and any other laws and regulations respecting discrimination in
unfair employment practices, and shall comply with such enforcement procedures as any
governmental authority might demand that the County take for the purpose of complying with
any such laws and regulations.
11.4 Pay promptly all taxes, excises, license fees and permit fees of whatever nature
applicable to its operations hereunder and to take out and keep current all licenses, municipal,
state or Federal, required for the conduct of its business or the operation or its equipment, and
further agrees not to permit any of said taxes, excises or license fees to become delinquent.
11.5 Comply with the rules and practices as set forth in the current Pitkin County
Airport Certification Manual, Airport Security Plan, and airport policy and/or procedures
memoranda, as amended from time to time. Any fines assessed against the County by the
FAA as a result of the Licensee's failure to comply with the provisions of this paragraph or
other intentional or negligent acts or omissions of Licensee, its employees or agent will be paid
promptly to the County by the Licensee.
11.6 Conduct its commercial activities in such a way as not to unreasonably interfere
with other permitted users of the Airport in non-exclusive areas. County shall operate the
Terminal in such a way as not to unreasonably interfere with Licensee's operations.
12. Environmental Quality Improvement Policy
It is the policy of the Pitkin County Board of County Commissioners (BOCC) that Pitkin
County plan for and continually reduce environmental degradation. It is the express intention
of the BOCC that all County lessees, licensees and permittees strictly comply with all existing
and future environmental rules and regulations, and be sensitive to all present and future
environmental issues. The County gives notice that environmental compliance and sensitivity
to environmental issues are and will be substantial factors in future performance reviews and
procurements.
13. Airport Master Plan. The parties acknowledge that the County has adopted an Airport
Master Plan that provides for potential changes to the Location during the term hereof.
Licensee shall cooperate in the implementation of said plan and will make no claim against the
County for other than the unreasonable interference with its business activities caused by such
implementation. Copies of the Airport Master Plan Update are available for inspection or for
sale in the office of the Director of Aviation.
14. Utilities. County shall provide electrical utilities normally associated with this specific
concession. All the required wiring and installation costs for this concession shall be the sole
responsibility of the Licensee.
15. Maintenance and Repair of Location.
15.1 County shall, at County's own expense, keep the structure and exterior of the
Air-carrier Terminal and the interior common areas in good condition and repair. The County
shall be responsible for maintenance and repair of the roof, exterior walls, floor (excluding
floor covering), structural components, heating, lighting, ventilation and electrical service (to
the point of connection); except if any damage thereto is caused by the negligence of Licensee,
in which case Licensee shall be responsible for such repair. Licensee shall be responsible for
maintenance and repair of all its trade fixtures and equipment; except if any damage thereto is
caused by the negligence of County, in which case County shall be responsible for such repair.
15.2 The County shall provide normal custodial services (sweeping, mopping, trash
collection, snow removal, etc.) to the common areas of main public terminal facilities.
Licensee shall provide normal custodial services within its exclusive area and shall keep its
exclusive areas clean, picked-up, orderly, in a safe condition and in accordance with first-class
maintenance practices and in common with other users of Licensee's classification.
15.3 Licensee shall not cause nor, when advised thereof by the County, permit any
dangerous or hazardous condition or nuisance to exist related to the use and occupancy granted
herein.
15.4 Licensee shall not place any displays, signs, advertising or brochures upon the
Location, except of such design, content and structure as shall be approved by the Director of
Aviation, provided that such approval shall not be unreasonably withheld. Any sign permitted
by County shall, in addition, at all times comply with applicable Airport policies, rules and
regulations.
16. Licensee's Personal Property/Trademarks. All personal property, equipment,
furnishings, decorations and trade fixtures placed upon the Location by Licensee shall be at
Licensee's sole risk, and County shall not be liable for damage to or loss of such personal
property or trade fixtures arising from the acts or omissions of any persons or from any causes
whatsoever, except from the acts or omissions of County, its agents and employees.
Licensee represents that it is (and will be for the entire term hereof) the owner of or fully
authorized to use any and all services, processes, machines, articles, trademarks, logos, names
or slogans to be used by it in its operations under or in any way connected with this
Agreement. Licensee agrees to save and hold the County, its officers, employees, agents and
representatives free and harmless of and from any loss, liability, expense; suit, demand or
claim for damages in connection with any actual or alleged infringement of any patent
trademark or copyright arising from any alleged or actual unfair competition or other similar
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claim arising out of the actions of Licensee under or in any way connected with this
Agreement.
17. Destruction of Buildings and Other Improvements. If the buildings and other
improvements located upon the Location shall be rendered untenantable by fire or other
casualty, County shall, at County's cost (subject to and secondary to Licensee's obligation, if
any, to provide fire and casualty insurance for the Location, as provided below), restore and
repair the same to tenantable condition as speedily as possible and the rent shall be equitably
adjusted, in whole or in part, during the period of such restoration and repair according to the
portion of the buildings or other improvements so rendered untenantable; except that there
shall be no abatement of rent if such fire or other casualty shall be caused by the intentional
acts or negligent acts or omissions of Licensee, its agents, employees, invitees or licensees.
Notwithstanding the foregoing, County shall not be obligated to expend in the restoration and
repair of any buildings or other improvements so damaged by fire or other casualty. in excess
of the insurance proceeds received by County by reason thereof. If such insurance proceeds
are insufficient to pay in full the costs of such restoration and repair, County shall not be
obligated to undertake such restoration and repair unless Licensee shall agree to contribute to
the costs of such restorations and repair in an amount equal to such deficiency.
18. Indemnity.
18.1 The Licensee, (including, by definition here and hereinbelow, the officers,
agents, and representatives) shall release and discharge the County; and the Licensee shall
indemnify and hold harmless the County of Pitkin and its officials, employees, agents and
representatives from and against liability for any claim, demand, loss, damages, penalty,
judgment, expenses, costs (including costs of investigation and defense), fees (including
reasonable attorney and expert witness fees) or compensation in any form or kind whatsoever
for any bodily injury, death, personal injury or property damage arising out of or in connection
with any intentional act or negligent act, error or omission by the Licensee, loss of use of
facilities/premises, or for any resulting liability alleged to accrue against the County on account
of the Licensee's acts, errors or omissions; provided, however, that such indemnity shall not
be construed as an indemnity for bodily injury or property damage arising from the sole
negligence or intentional acts of the County or its employees.
18.2 The Licensee further shall investigate, process, respond to, adjust, provide
defense for and defend, pay or settle all claims, demands, or lawsuits related to its acts, errors
and omissions hereunder at its sole expense and shall bear all other costs and expenses related
thereto, even if the claim, demand or lawsuit is groundless, false or fraudulent.
19. Insurance
19.1 In whole or in part, the Licensee shall secure and maintain for the term of its
contractual relationship with the County such insurance policies, from companies licensed in
the State of Colorado, as will protect itself, the County (with the County named as additional
insured), and others as specified, from claims for bodily injuries, death, personal injury or
property damage, which may arise out of or result from the Licensee's intentional or negligent
acts, errors or omissions. The following insurance coverage, at or above the limits indicated
and including such endorsements as are indicated by an "X", are required:
Commercial General Liability - ISO 1996 Form or equivalent (County must be named
as additional insured.
Each Occurrence Limit $1,000,000
General Aggregate Limit $1,000,000
Products/Completed Operations Aggregate Limit $1,000,000
Comprehensive Form (all risks) to include:
X Premises/Operations
Underground, Explosion & Collapse Hazard
X Products/Completed Operations
X Contractual Liability
X Independent Contractors and Subcontractors
X Board Form Property Damage
X Personal Injury
19.2 To provide evidence of the required insurance coverages, copies of Certificates
of Insurance in a form acceptable to the County shall be filed with the County (through the
Director of Aviation) no later than fifteen (15) calendar days prior to commencement of
operations affecting the County. Failure to file or maintain acceptable Certificates of Insurance
with the County is agreed to be a material breach of any contract and grounds for termination.
These Certificates of Insurance shall contain a provision that coverage afforded under the
policies will not be canceled or materially altered unless at least thirty (30) calendar days prior
written notice by certified mail, return receipt requested (effective upon proper mailing), has
been sent to the County (through the Director of Aviation). (For purposes of this provision,
"materially altered" shall mean a change affecting the coverages required herein, including a
change to policy limits as set out in the then-current policy declarations page.)
19.3 In addition, these Certificates of Insurance shall contain the following clauses:
19.3.1 The clause "other insurance provisions," in a policy in which the County
of Pitkin is named as an insured, shall not apply to the County of Pitkin.
19.3.2 The insurance companies issuing the policy or policies shall have no
recourse against the County of Pitkin for payment of any premiums or for assessments under
any form of policy.
19.3.3 Any and all deductibles in the above-described insurance policies shall be
assumed by and be for the amount of, and at the sole risk of the Licensee.
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19.3.4 Location of operations shall be: "all operations and areas on the
Aspen/Pitkin County Airport conducted by or used and occupied by Licensee."
19.4 Certificates of Insurance for all insurance policies shall be delivered to the
Director of Aviation at least fifteen (15) days prior to a policy's expiration date except for any
policy expiring on the expiration date of the Agreement or thereafter.
19.5 County shall procure fire and extended coverage insurance and boiler insurance
covering the buildings on the Location for the full replacement value thereof. County shall
maintain such insurance in full force and effect during the term of this License and shall
furnish Licensee, at Licensee's request, with a copy of a certificate evidencing the issuance
thereof.
20. Rights of Seizure. County shall not be liable in any respect to Licensee in the event of
any seizure of all or any part of the Location, or the buildings and other improvements located
thereon, by the United States of America or the State of Colorado in time of war or other
national emergency; provided, that the fee provided hereunder shall abate during such period
of seizure to the extent that such seizure shall interfere with Licensee's ability to conduct its
business upon the Location.
21. Holdover. If Licensee remains in possession and use of the Location after the
expiration or termination of this term, the parties agree that Licensee's interest in the Location
shall be automatically deemed to be a month-to-month License and Use Agreement; subject to
the fees, charges, terms and conditions contained herein, or as new fees and charges may be
established, amended or terminated by the Airport upon ten (10) days notice. Such new fees
and charges which may be established during the term of the holdover will not exceed the
highest bid amount, if bids are solicited and received, during the holdover.
22. Assignment. Licensee shall not, voluntarily or by operation of law, assign, convey or
transfer this License, any of Licensee's interest in this License or any rights and obligations
hereunder; or sublicense the Location or any part thereof; or assign, convey or transfer a
controlling interest in Licensee's business entity, without the prior written consent of County,
which consent shall not be unreasonably withheld; provided, however, the Licensee shall be
required to provide evidence satisfactory to County of the successful business experience and
financial stability of Assignee/Transferee, and audit of and full payment of all costs, fees and
charges to the date of assignment/conveyance/transfer and proof of compliance of the
assignment/conveyance/transfer with the County's Airport management goals and objectives,
"including without limitation, small business goals, DBE goals, and environmental impact and
quality of service." Nothing contained interests in its personal property, fixtures, or related
assets, which security interests may be granted without prior consent of the County or the
Director of Aviation.
23. No Third Parties. This License and Use Agreement does not and shall not be deemed
or construed to confer upon or grant to any third party or parties, except to parties to whom
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Licensee may assign this Agreement in accordance with the specific written permission of the
Director of Aviation, and excepting any successor to the County, any rights to claim damages
or to bring any suit, action or other proceeding against either the County or Licensee because
of any breach hereof or because of any of the terms, covenants, agreements or conditions
herein contained.
24. Relationship of Parties. It is the intent and agreement of the County and the Licensee
that they shall have the relationship respectively of Licensor/Licensee and Permittor/Permittee
hereunder, and nothing contained herein shall be deemed or construed to constitute the parties
as partners or joint venturers, and in no event shall County be liable for any loss which may
result from the operations of Licensee upon the Location or for any indebtedness incurred by
Licensee in the operation of its business on the Location or for the claims of third parties
against Licensee in the conduct of its business.
In addition, County shall not be liable in any manner to the Licensee for any damages the
Licensee may incur due to the inability of the County to deliver possession of the Location, or
any part thereof, to the Licensee for reasons beyond the reasonable control of the County.
25. Non-Liability of County's Agents and Employees. No official, agent, or employee of
County shall be personally liable to Licensee in the event of any default or breach hereunder
by County.
26. Termination. This Agreement may be terminated by the Licensee at the end of any one
year term by providing written notice to Aspen/Pitkin County Airport in the manner provided
in Paragraphs 27 & 28 below, and at least 90 days prior to the end of any one year term.
27. Default and Termination. If Licensee shall default in the payment of costs, fees or
charges when due or in the timely remittance to County of any other amounts to be remitted to
County under the provision of this License and shall not cure such monetary default within ten
(10) days after written notice from County specifying such default; or if Licensee shall default
in the performance of any other obligations or conditions to be performed by Licensee under
the provisions of the License and shall not cure such other default within ten (10) days after
written notice from County specifying such default (or within three (3) business days if the
default is maintenance of a hazardous condition or failure to maintain and/or prove required
insurance coverage); or in the event of the insolvency or bankruptcy of License; or in the event
of an unapproved (by County) assignment, transfer or conveyance of Licensee's interest as
defined herein; then in any of such events if such defaults shall remain uncured after the cure
period specified, County may thereafter terminate this License by giving written notice of
termination of Licensee. If, however, the Licensee demonstrates good faith due diligence in
curing such default as indicated herein, (with the exception of maintenance of a hazardous
condition or failure to maintain and/or prove required insurance coverage and monetary
default) the County shall grant additional reasonable time necessary to cure default not to
exceed thirty (30) days. Upon termination of this License, County may reenter the Location
and remove all persons and property therefrom, using all necessary force to do so, and shall
have such other rights and remedies as may be provided for by law or in equity, including
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damages. In the event of any such default by Licensee, County shall be entitled to recover its
costs, including a reasonable attorney fee, in all proceedings in connection therewith.
28. Surrender of Location. Upon expiration or termination of this License, Licensee shall
surrender the Location to County in good condition and repair, ordinary wear and usage
excepted; and Licensee shall remove all personal property, trade fixtures, equipment or
improvements then owned by Licensee and removable by prior agreement with County from
the Location and shall repair any damage to the Location caused by such removal. Any
personal property of Licensee, or anyone claiming under License, which shall remain upon the
Location at the expiration or termination of this License shall be deemed to have been
abandoned and may be retained by County as County's property or disposed of by County in
such a manner as County sees fit without compensation to any party.
29. Notices. All notices required or authorized to be given hereunder shall be in writing
and shall be served upon the parry entitled thereto by certified mail, return receipt requested,
addressed to such party at its address appearing on the signature page of this License (with a
copy delivered to its Airport Location), or at such other address as either parry may so notify
the other party of in writing. Any such notice shall be deemed to have been received
personally to the party entitled thereto or three (3) business days after the same has been
properly deposited in the United States mail, with postage thereon fully prepaid, as aforesaid.
30. Representations of Licensee. Licensee represents and warrants to County as follows:
30.1 Licensee, and those individuals executing this License on behalf of Licensee,
represent and warrant that they are familiar with Section 18-8-301, et 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
thereof are present.
30.2 Licensee, and those individuals executing this License on behalf of Licensee,
represent and warrant that to the best of their knowledge no employee of Pitkin County has
personal or beneficial interest whatsoever in the License or in the business to be conducted
upon the Location by the Licensee.
31. General Provisions
31.1 This License contains the entire agreement of the parties and there have been no
promises, representations or agreements, either express or implied, except as expressly set
forth herein. Any and all prior agreements or understanding between the parties are expressly
agreed to have merged herein.
31.2 The provisions of this License shall be severable and the invalidity of any
provision hereof shall not affect the validity of any other provision hereof.
13 /�
31.3 This License may be modified or amended or supplemented only by an
instrument in writing signed by the parties hereto. The County's representative for the
administration of this Agreement shall be the Director of Aviation or his/her designee in
writing; provided, however, that all matters affecting material terms of this Agreement,
including term, fees and charges and use of Location by Licensee, shall only be modified or
amended by a writing approved by a Resolution of the Board of County Commissioners at a
duly-noticed public meeting.
31.4 The failure of either party hereto to exercise any right or remedy hereunder
shall not be deemed a waiver thereof or a waiver of the right of exercise the same at any future
time, or the waiver of any other right or remedy hereunder. No waiver by either party of any
right or remedy hereunder shall be effective unless in writing signed by the party.
31.5 The parties agree that this Agreement was negotiated and drafted by the mutual
efforts of the parties hereto and agree that no legal presumption shall arise as a result of the
identity of the drafter of this Agreement or any presumed unequal status arising therefrom.
31.6 If either party hereto shall institute legal proceedings to protect or enforce any
of its rights or remedies hereunder, then the party prevailing in such legal proceedings shall be
entitled to recover all of its costs in connection therewith, including a reasonable attorney's
fee.
31.7 This License shall be governed by and construed in accordance with the laws of
the State of Colorado and venue is agreed to be exclusively in the courts of Pitkin County,
Colorado.
31.8 This License shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, successors and assigns.
31.9 This License shall be executed in duplicate originals, with one original to be
held by each party.
32. Authority of Licensee's Representative. As an inducement to the County to execute
this agreement, the undersigned representative of Licensee represents that he/she is expressly
authorized to execute this Agreement and to bind Licensee to the terms and conditions hereof
and acknowledge that the County is relying on this representation, authorization and execution.
14 � Y
COUNTY: LICENSEE:
ASPEN PITKIN COUNTY AIRPORT LEWIS ENTERPRISES
By: By:
(Ime Elwood Jack Lewis
Director of Aviation
Title:
Date
colee ewwis
Risk-Management Title:
11IOki Os of
Date k Date
rt
John Ely
County Attorney
Date
County's Address: Licensee's Address:
Pitkin County Lewis Enterprises
506 East Main Street P.O. Box 565
Aspen, Colorado 81611 Snowmass, Colorado 81654
Fax #: 970-920-5378 Fax #: 970-
Attachments:
Exhibit A - Kodak Sticker Magic Machine area location diagram
Exhibit B - Required Clauses
EXHIBIT `B"
REQUIRED CLAUSES
For purposes of these required clauses, "Contractor" means the Lewis Enterprises.
Contractor shall be subject to the following provisions:
1. COMPLIANCE WITH PROCUREMENT CODE AND APPLICABLE STATE CON-
TRACTING LAW
A. The Contractor acknowledges that this Agreement is entered into subject to the
requirements of the "Pitkin County Procurement Code," (Section 8.5 of the Pitkin County Home
Rule Charter, Resolution No. 82-37, April 12, 1982). As such, the Contractor agrees to comply
with all requirements of said Procurement Code, and such requirements are incorporated herein
by this reference.
B. The Contractor shall immediately notify the County Manager in writing of any violation of
said Code or statutes by the County's employees or agents, which violation(s) is known or should
have been known by him, and failure to so notify the County of any violation(s) within five (5)
days of knowledge of such violations shall be considered a breach of this Agreement. Further,
such failure to notify the County of violation of the Procurement Code or statutes within five (5)
days of knowledge shall be deemed as a waiver of any action or defense that the Contractor may
have against the County by reason of such violation of the Procurement Code or statutes.
2. WARRANTIES AGAINST CONTINGENT FEES, GRATUITIES, KICKBACKS AND
CONFLICT OF INTEREST
A. Covenant Against Contingent Fees. The Contractor warrants that no person or selling
agency has been employed or retained to solicit or secure this Agreement upon an agreement or
understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide
employees or bona fide established commercial or selling agencies maintained by the Contractor
for the purpose of securing business.
B. Gratuities Prohibited. The Contractor agrees not to give any employee or former
employee of Pitkin County a gratuity or any offer of employment in connection with any
decision, approval, disapproval, recommendation, preparation of any part of a program
requirement or a purchase request, influencing the content of any specification or procurement
standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any
proceeding or application, request for ruling, determination, claim or controversy, or other
particular matter, pertaining to this Agreement, or to any solicitation or proposal therefor.
C. Gratuity means a payment, loan, subscription, advance deposit of money, services, or
anything of more than nominal value, present or promised, unless consideration of substantially
equal or greater value is received.
D. Kickbacks Prohibited. It shall be a breach of Agreement for any payment, gratuity, or
offer of employment to be made by or on behalf of a subcontractor under a contract to the prime
contractor or higher tier subcontractor or any person associated therewith, as an inducement for /
16 // _
the award of a subcontract or order. The Contractor is prohibited from inducing, by any means,
any person employed under this Agreement to give up any part of the compensation to which
he/she is otherwise entitled. The Contractor shall comply with all applicable local, state and
federal "anti-kickback" statutes or regulations.
E. Conflict of Interest Prohibited. No official, officer, employee or representative of the
County during the term of this Agreement or one (1) year thereafter shall have any interest,
direct or indirect, in this Contract or the proceeds thereof. (Additional restrictions on present and
former employees of County are found in Article 7 of the Procurement Code).
F. Sub-Contract Clause. The prohibitions against contingent fees, gratuities, kickbacks and
conflict of interest prescribed in this Agreement shall be made a condition of and conspicuously
set forth in every subcontract and solicitation therefor.
G. Conspicuously means written in such special or distinctive format, print, or manner that a
reasonable person against whom it is to operate ought to have noticed it.
H. Remedies. In addition to other remedies it may have for breach of the prohibitions against
contingent fees, gratuities, kickbacks and conflict of interest, the County shall have the right to:
(1) Terminate this Agreement without liability by the County;
(2) Debar or suspend the offending parties from being a contractor or sub-contractor under
County contracts;
(3) Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Contractor; and
(4) Recover such value from the other offending parties.
3. EQUAL EMPLOYMENT OPPORTUNITY AND DISADVANTAGED/MINORITY/WOMEN
BUSINESS ENTERPRISES (DBE/MBE/WBE)
A. Pursuant to local, state and/or federal anti-discrimination and affirmative action programs,
contractor shall meet all applicable requirements with respect to employment and subcontracting
in connection with Disadvantages/Minority/Women individuals and enterprises
(DME/MBE/WBE).
B. In connection with the execution and administration of this Agreement, and any
subcontracts, the Contractor shall not discriminate against any employee or applicant for
employment because of race, religion, color, sex, national origin, age, handicap or status as a
veteran.
C. In connection with the performance of this Agreement, the Contractor will cooperate with
the County in meeting the County's commitments and goals with regard to the maximum
utilization of disadvantaged, minority and women business enterprises and will use its best efforts
to ensure that such business enterprises shall have the maximum practicable opportunity to
compete for employment and/or subcontract work, if any, under this Agreement.
D. The Contractor will furnish all necessary information and reports and will permit access to
its books, records, and accounts by Pitkin County for purpose of investigation to ascertain
compliance with the nondiscrimination/affirmative action provisions of any resultant contract.
17 /�
E. Employment Data and Affirmative Action Plan. If requested, the Contractor agrees to
submit on an Employment Data Form to be provided by the County, the data showing the
utilization of disadvantaged persons, minorities and women by job category within its
organization. Where the Contractor has fifty(50) or more employees or it is participating in con-
tracts with the County, which exceed Fifty-Thousand($50,000.00) Dollars, an Affirmative
Action Plan must be submitted to the County when requested by the County Attorney's Office
within ten(10) days after selection.
F. Noncompliance. In the event of the Contractor's noncompliance with the
nondiscrimination/affirmative action provisions of any resultant contract, Pitkin County shall
impose such contract sanctions as it may determine to be appropriate, including, but not limited
to:
(1) Withholding of payments under the Agreement until the Contractor complies,
and/or
(2) Cancellation, termination, or suspension of the Agreement, in whole or in part.
4. RECORDS
The Contractor shall maintain comprehensive, complete and accurate books, records, and
documents concerning its performance relating to this Agreement for a period of three (3) years
after final payment under the Agreement and the County shall have the right within the three (3)
year period to inspect and audit these books, records and documents, upon demand, in a
reasonable manner and at reasonable times, for the purpose of determining, by accepted
accounting and auditing standards, compliance with all provisions of the Agreement and
applicable law.
5. GOVERNMENTAL IMMUNITY
Contractor agrees and understands that Pitkin County is relying on and does not waive, by
any provision of this Agreement, the monetary limitations or terms (presently $150,000.00
per person and$600,000 per occurrence) or any other rights, immunities, and protections
provided by the Colorado Governmental Immunity Act, 24-10-101, et. seq., C.R.S., as from
time to time amended, or otherwise available to Pitkin County or any of its officers, agents or
employees. Further, nothing in these Required Clause or the Agreement shall be construed or
interpreted to require or provide for indemnification of the Contractor by the County for any
injury to any person or any property damage whatsoever which is caused by the negligence or
other misconduct of the County or its agent or employees.
18
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CERTIFICATE OF LIABILITY INSURANCE
American Family Insurance Company ❑
American Family Mutual Insurance Company if selection box is not checked.
6000 American Pky Madison,Wisconsin 53783-0001
Agent's Name,Address and Phone Number(Agt./Dist.) Insured's Name and Address:
Shannon Quist Agency (126-307) Lewis,Jack H.
111 AABC, Suite R PO box 565
Aspen, CO 81611 Snowmass, CO. 81654-0565
970-925-8971
This certificate is issued as a matter of information only and confers no rights upon the Certificate Holder.
This certificate does not amend,extend or alter the coverage afforded by the olicies listed below.
CQt1ERAGE .;.;.,
This is to certify that policies of insurance Imma below have been issued to the insured named above for the policy period Indicated,notwith y
standing an
requirement,tern or condition of any contract or other document with respect to which this certificate may be issued or may pertain,the insurance afforded
by the policies described herein is subject to all the terms,exclusions,and conditions of such policies.
POLICY TYPE
TYPE OF INSURANCE POLICY NUMBER Effective Expiration LIMITS OF LIABILITY
(Mo,Day,Yr (Mo,Da ,Yr)
Homeowners) Bodily Injury and Property Damage
Mobilehomaowners Liability Each Occurrence
Boatowners Liability Bodily Injury and Property Damage
Personal Umbrella Liability Each Occurrence
Bodily Injury and Property Damage
Farm/Ranch Liability Each Occurrence
Farm&Personal Liability Each Occurrence
Farts Employer's Liability Each Occurrence
Workers Compensation and Statutory
Employers Liability+ Each Accident
Disease-Each Employee
General Liability Disease-Policy Limit
ueneral
gregate 11000,000
® Commercial General 05-XC7037-01 6/29/2001 6/29/2002 Products-Completed Operations Aggregate $1,000,o00
Liability(occurrence)
❑ Personal and Advertising Injury $1,000,000
❑ Each Occurrence $300,000
Damage to Premises Rented to You $100,000
Businessowners Liability Medical Expense(Any One Person) $5,000
Each Occurrence++
Liquor Liability Aggregate++
Common Cause Limit
Automobile Liability A re ate Limit
❑Any Auto Bodily Injury•Each Person
❑All Owned Autos Bodily Injury-Each Accident
❑ Scheduled Autos Property Damage
❑ Hired Autos Bodily Injury&Property Damage Combined
❑ Nonowned Autos
Excess Liability
❑Commercial Blanket Excess 11 Each Ocourence/Aggregate
ther(Miscellaneous Coverages)
DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/RESTRICTIONS/SPECIAL ITEMS +The intlividual or paMers shown as Insured —elected to be
Machinery Operation of a Kodak Machine covered as employees under this policy.
++Products-Completed Operations aggregate is equal to each
occurrence limit and is Included in policy aggregate,
<<:�EtxsiFlc r
AFllAl1�J4`NCfJC4DRESSkt` �"=�:.tt�+z!. r,r. ,:i wa . , .�.0 lk�'M-�,Y,,='=tSA CELLAi7,'I "s
Lewis,Jack H. Pitkin County Airport ❑ Should any of the above described policies be canceled before the
PO Box 565 expiration date thereof,the company will endeavor to mail•(10 days)written
Snowmaas,CO. 81864 notice to the Certificate Holder named,but failure to mail such notice shall
impose no obligation or liability of any kind upon the company,it agents or
representatives. *10 days unless different number of days shown.
® This certifies coverage on the date of issue only. The above described
policies are subject to cancellation in conformity with their terms and by the
laws of the state Of issue.
DATE ISSUED AUTHORIZpp- ,FRESENTATIVE
6/29/2001 !�/�
U-201 Ed.05/00 ORIGINAL-Certificate Holder,COPIES to Services,Insured,
9 %—�� Stcck N . 066n3
NOTICE OF AWARD
Date: November 8, 2001
TO: Lewis Enterprises
Jack Lewis and Nicole Lewis
Pitkin County, having duly considered the Proposal submitted for placement of a Kodak
Sticker Magic Machine in the airport terminal building covered by the Contract Document
titled License and Use Agreement for a 20% of the monthly gross revenue, and it appearing
that the price and other information in you Proposal Form is fair, equitable and to the best
interest of the County, the offer in your Proposal Form is hereby accepted.
In accordance with the terms of the Contract Documents, you are required to execute the
Agreement in three copies within ten (10) consecutive days from and including the date of this
Notice of Award.
In addition, you are required to furnish Certificate of Insurance evidencing compliance with the
requirement for insurance as stated in the Contract Documents one copy to Airport
Administration Office and the other copy to Risk Management, 530 E Main, 2' Floor, Aspen
CO 81611 or faxed to 970-920-5049.
PITKIZTY
n
By�
(staff) (title)
ACCEPTANCE OF NOTICE
Receipt of the above Notice of Award is hereby acknowledged
B this 9 day of �/ , 2001.
Title f