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bocc.ord.052.2001
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS, OF PITKIN COUNTY, COLOR-ADO APPROVING A LICENSE AND USE AGREEMENT BETWEEN PITKIN COUNTY AND SNOW LIMO FOR THE PROVISION OF GROUND TRANSPORTATION SERVICES AT THE ASPEN/PITKIN COUNTY AIRPORT Ordinance#S� Series of 2001 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 10 of the Pitkin County Code,and Section 8.7.2 of the Pitkin County Home Rule Charter. 2. After an informal procurement process, Snow Limo was selected as the top ranked, qualified proposer to provide ground transportation services at the Aspen/Pitkin County Airport. 3. Pitkin County wishes to enter into a License and Use Agreement with Snow Limo for the purpose of providing ground transportation services at the Aspen/Pitkin County Airport for a term of 2 years with the option of a 2 year renewal period upon a satisfactory performance. NOW, THEREFORE, be it ordained by the Board of County Commissioners of Pitkin County, Colorado that the Board does hereby authorize the Chair to sign on its behalf, the License and Use Agreement between Pitkin County and Snow Limo for the purpose of providing ground transportation services at the Aspen/Pitkin County Airport. INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON 2001. PUA3LIS THE WEEKEND EDITION OF THE ASPEN TIMES ON THE DAY OF HED , 2001. Gb���j,� mAPPR ED AND ADOPTED UPON SECOND READING ON THE DAY OF _'2001. PUBLISRD, AFTER AD OP ION IN THE WEEKEND EDITION OF THE ASPEN TIMES ON THE �DAY OF ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO B)� J etteJones Date Michael Ireland, air Date1i-05-O/ Deputy Clerk&Recorder J Ordinance n f)ol Page 2 APPROVED AS TO FORM: MANAGER APPROVAL: r i Kathleen Morgan �f� Date Hilary F. S Date Assistant County Attorney) County Ma ger APPROVED AS TO CONTENT: C ,01 Jams Elwood Date Di—mttor of Aviation USE AND LICENSE AGREEMENT COMMERCIAL GROUND TRANSPORTATION THIS AGREEMENT, made and entered into as of the date last below signed by and between THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a Colorado home rule County (hereinafter the "County"),and SNOW LIMO, (hereinafter"the Company"). WITNESSETH: WHEREAS,the County owns and operates the Aspen/Pitkin County Airport, also known as Sardy Field(hereinafter the "Airport")and the terminal building complex(hereinafter the "Terminal" or the "Air-Carrier Terminal")and does maintain various spaces for the use of the public and from time to time does and shall license or permit the use of parts of these areas to various individuals, firms or corporations to serve the users of the Airport; and WHEREAS, the County has authority to regulate commercial activities on Airport property and to enforce these regulations, pursuant to, inter alia, C.R.S. 41-4-101, et seq.,the Pitkin County Airport Regulations (Title 10, Pitkin County Code)and the Airport's Ground Transportation Rules and Regula- tions, promulgated thereunder from time to time; and WHEREAS, the Company is regularly in the business of providing public ground transportation services or associated ground transportation services by taxi and/or van and/or bus and/or other vehicle to and from the Aspen/Pitkin County under authority granted to it by license(s) from the Public Utilities Commission (PUC)of the State of Colorado or the Federal High Way Authority (FHWA, formerly known as ICC); and WHEREAS,the County is willing to permit the Company to occupy and maintain terminal counter space for the operation, and coordination of its transportation business to and from the Airport for its taxi,van, or bus service, or other associated ground transportation service in the arrivals/baggage claim area only at the Aspen/Pitkin County Airport, all as more specifically hereinafter provided, as well as allow the Company access to certain portions of the Aspen/Pitkin County Airport in furtherance of its business activities there; and WHEREAS,the Company is ready,willing and able to occupy and maintain such counter space and perform its business functions there at in accordance with the terms, standards and conditions hereinafter set out: NOW, THEREFORE, for and in consideration of the terns,conditions and mutual covenants hereinafter contained and other valuable consideration,the parties hereto agree as follows: 1. LICENSE AND USE PERMITTED. A. The County grants and permits unto the Company for the term hereof the right to occupy and use a portion of the arrivals/baggage claim area at the Terminal Building at the Airport consisting of an area containing a total of one hundred two(102) square feet, depicted on the attached Exhibit "A" which is marked with the Company's name thereon. B. The County also grants the right to use the public-access roads, driveways, loading and unloading areas,and parking lots on the airport for commercial purposes, subject to Airport Rules and Regulations, for such use in common with other users of a similar class. C. The County expressly does not grant Commercial operating privileges for passenger loading on the Airport through this Agreement. All commercial ground transportation activities, including those operations conducted under proper PUC and/or FHWA authority, are prohibited on the Airport, unless expressly permitted to operate on the airport in writing, in advance, and under permit by the Director of Aviation, or his/her designee. D. For purposes of this Agreement,the following Pitkin County definitions are applicable and shall be enforced by the County: 1. A "taxicab" shall be defined as any passenger carrying vehicle with a maximum seating capacity of seven(7)passengers plus the driver holding a Certificate of Public Convenience and Necessity issued by the Colorado Public Utilities Commission for transportation of passengers and their baggage in taxicab service operating on a "call and demand" basis, the first passenger: (1)having exclusive use of the vehicle unless he/she agrees to "multiple loading": and(2)having the ability to designate any destination, route, or stops desired on the route; 2. A "limousine/van/shuttle" shall be defined as any passenger carrying vehicle with a maximum seating capacity of fourteen(14)seats plus the driver operating on a "call and demand" basis,transporting passengers at a per person rate, the use of said vehicle not being exclusive to any individual or group; 3. A "bus" shall be defined as any passenger carrying vehicle with fifteen(15) or more passenger seats not including the driver,regardless of type of service; 4. A "courtesy vehicle" shall be defined as any vehicle permitted to transport its customers as a "courtesy" service only, not for hire/not for compensation; 5. "On schedule/scheduled" service means the transportation of passengers or property between fixed points and over designated routes at established times as specified in the carrier's time schedule as filed and approved by the appropriate jurisdictional authority; 6. "On call-and-demand/call and demand" means the transportation of passengers or property not "on schedule" or"charter, pre-book, pre-arrangement, manifested"; 7. "Charter service", "pre-book/pre-arrangement", or "manifested service" means the transportation of passengers who are traveling together in a group pursuant to a common purpose, under a single contract,at a fixed charge for the vehicle having acquired the exclusive use of that vehicle; 8. "Type of service" generally means those definitions as defined in those paragraphs immediately above. 9. "Permit" means the actual vehicle/ID permit itself,which therefore, when issued properly, means an operating authority to pick up passengers/customers as an operator of one of the defined vehicles above at the Aspen/Pitkin County Airport(Sardy Field). 10. "Air freight handlers" means those shippers and/or receivers of air freight/cargo that are specifically and only using the services of the commercial air carriers/airlines. This definition does not include other freight/cargo operators picking up from or delivering to customers within the commercial terminal building, i.e.UPS, FedEx, etc. These operators shall not park in those areas designated for commercial ground transportation operators for any reason. All vehicles shall be operated from only those areas specifically marked, and permitted for passenger unloading, staging, stacking/queuing, and loading/pick-up. 2. TERM OF AGREEMENT. The term of this Agreement shall commence as of 6:OOAM MST, on the 1st day of December 2001,_ and shall expire at 10:00PM MST on the 30th day of November 2003. -2- 2.1 Renewal. The County may, if it so desires, provide the Licensee with a review of its performance under this Agreement to be delivered ninety (90) days prior to the anniversary date, that anniversary date being November 30, 2003. 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 contract term. 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 additional years(December 1, 2003 to November 30,2005). 2.3 The County's exercise of its right of renewal shall be exercised by delivery of written notice to the Licensee sixty(60)days prior to the expiration of the term. 2.4 In the event the County decides not to renew this agreement a notice of termination shall be send to the Licensee 60 days prior to the expiration of the term. However, if in the event County does not send such Notice of Termination to the Licensee this lack of notice shall not result in an automatic renewal of this agreement. 3. FEES. The Company agrees to pay to the County for the right to occupy the described Terminal areas and facilities for the term of this Agreement,the following amounts: A. Three Hundred Dollars ($300.00) per month, paid in advance on the first day of each month and each succeeding month for the first twelve (12)months of license term. B. The rent for the second year term of this Agreement, or December 1, 2002 to November 30, 2003, shall be increased by four percent(4%)over the preceding term(December 1, 2001 to November 30, 2002). 4. PERFORMANCE AND PAYMENT SECURITY. Promptly after execution of this Agreement and prior to actual occupancy and use of the Premises,Lessee shall deliver to County(and thereafter maintain current for the entire term of this Agreement), certain deposits or instruments, as security for the full and timely performance and payments by Lessee of all of its obligations hereunder including, without limitation,the payment of the Base Rent,Additional Rent hereunder, as follows: A. Types of Security. Lessee shall deliver cash or certified funds Security Deposit totaling to three months rental fees or Nine Hundred Dollars($900.00). 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; provided,however,that if the Airport issues a Notice of Non-Compliance or Notice of Default involving one or more failures to timely pay any rent or charges hereunder, it may, as part of that Notice, as material element of this Lease, require either the Security Deposit or this surety instrument or both to be delivered promptly as part of any cure of such Notice. It is expressly agreed that such amounts are not an advance payment of rental or a measure of Lessor's damages in case or default by Lessee. Lessor shall have the right to commingle any cash amounts received hereunder with its other funds. B. County Use of Required Security. If at any time during the Term hereof, any of the Fees or Additional Fees shall be overdue and unpaid, or any other sum payable by Lessee or Lessor hereunder shall be overdue and unpaid,then Lessor may, at its option, and upon Notice to Lessee, appropriate and apply any portion of the Security Deposit 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 Lessor may, at its option and upon Notice to Lessee -3- (and its surety, if applicable), appropriate and apply the Security Deposit, or so much thereof as may be necessary,to compensate Lessor for advances, expenses, loss or damage sustained or suffered by Lessor due to such breach on the part of Lessee. C. County Return/Release of Required Security. No later than sixty(60) days after the expiration or termination of this Lease, Lessor shall: 1) 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 Lessor hereunder, then return the Security Deposit and /or release the surety, or;2)If Lessee has not complied with such obligations, provide written notice to Lessee and/or its surety of Lessor's claims against said amounts and return/release the remainder. 5. USE OF PREMISES. A. The County hereby grants to the Company the right and privilege to occupy the Location area described above at all times when the Air-Carrier Terminal shall be regularly open for business, together with the necessary right of public-access ingress thereto and egress therefrom, for the sole purpose of operating a non-exclusive concession for the providing of taxi, limousine, and/or bus service to and from the Aspen/Pitkin County Airport for the benefit of the public. The Company shall provide all personnel, supervision, equipment and supplies necessary to operate its business. The booth, or in the case of call-and-demand transportation providers the curbside as a starter, shall be open for business, staffed and supervised, seasonally, and as follows: 1. During the "winter season": Forty(40)hours per seven (7)day work week. "Winter season" is defined as those actual dates when both Aspen Mountain and Snowmass Ski Areas are open for daily business. 2. Duringthe he"spring off-season": As the Company determines, and with notification to the Director of Aviation, or his/her designee. "Spring off-season" is defined as that period of time between the last date both Aspen Mountain and Snowmass Ski Areas as specified above are open for daily business and Memorial Day. 3. During the "summer season": Forty(40)hours per seven(7)day work week. "Summer season" is defined as that period of time between Memorial Day and Labor Day. 4. During the "fall off season": As the Company determines,and with notification to the Director of Aviation, or his/her designee. "Fall off-season" is defined as that period of time between Labor Day and first date both Aspen Mountain and Snowmass Ski Areas are open for daily business. The booth shall be kept and maintained,whether staffed or un-staffed, in a clean,orderly and business-like condition. The Company further agrees to use the area hereinabove described for the said purposes stated only, unless otherwise specifically authorized in advance in writing by the Director of Aviation, or his/her designee. No display or device shall be installed upon the Terminal space which in any way obstructs the public view of or access to another licensed space, and all displays shall be in compliance with the further provisions of this Agreement. Further,the Company shall not commit or permit any nuisance to arise from or related to its rights granted herein, or its occupancy of the Air-Carrier Terminal or the Airport. The Company may, in the discretion of the Director of Aviation, be permitted to utilize the premises before and after the hours which it normally operates; PROVIDED, that any expense to the County arising from said use, including supervision of the security premises, shall be paid by the -4- Company(or prorated equitably among all users if more licensees than the Company shall use the terminal during hours when it is normally closed). B. There is further granted to the Company the right for itself, its employees, agents and invitees,to utilize the public facilities with the non-exclusive waiting and concession areas of the Air- Carrier Terminal such as rest rooms, restaurant,vending machines, drinking fountains and the like for the public purposes intended; PROVIDED, however,there shall be no waiting, lounging, loitering, gathering in groups, or solicitation, advertisement or conduct of business by the Company's employees in such areas. C. Said area provided for in paragraph I.A., above, shall be subject to the following: 1. The County shall provide, at no cost to the Company,the unfinished shell booth area. The County may, at the request of the Company, design and construct reasonable additions to the booth, finish the exterior of the same and provide utility connections and special electrical work ordered at the special instance and request of the Company. The total expense for construction of such shell booth additions, utility connections and special work, if any, shall be reimbursed to the County by the Company prior to occupancy hereunder. 2. Finishing of the interior of the shell booth and appropriate signage shall be performed by the Company also at its expense and the design thereof and graphics placed thereon shall have the prior written approval of the Director of Aviation. All work done by the Company shall be completed promptly, in a workmanlike manner, and in compliance with the first-class design and finish standards of the Airport. 3. The Company, subject to the further provisions herein, shall be entitled to remove all items incorporated in the interior finishing and signage of the shell booth so long as the removal is completed without damage to the booth structure or any such damage is properly and promptly repaired. D. The licensed space may be used by the Company for purposes of disseminating information to the public and the operation and coordination of business, all in a first-class businesslike manner, and for use as office space, limited to the conduct of its business to and from the Airport. E. The Company shall not interfere with (or permit interference by its agents)the business or operations of any other lessee, licensee, or permittee in the Terminal or on the Airport. Further,the Company shall not interfere with the County's contractual or operational relationship to other lessees, licensees or permittees in the Terminal or on the Airport. 6. OPERATION OF THE COMPANY. A. In addition to the right to use and occupy space as provided herein,the Company hereby agrees to abide by such Rules and Regulations as shall be promulgated from time to time by the County for the use of the Airport, relating to pickup and delivery of passengers, loading and unloading of baggage, etc.The parties agree that the Company shall be responsible for immediately distributing a copy of these Rules and Regulations (or any future amendments thereto)to all persons operating under its PUC/FHWA certificate(s). Any new or amended Rules and Regulations shall be deemed effective five (5)business days after notice thereof is posted,pursuant to Section 8-8,Airport Regulations, and/or delivered to the Company pursuant to the notice provisions below. For purposes of enforcement under this Agreement, delivery of Rules and Regulations to the Company shall be deemed delivery to all persons operating under its Certificate(s). For purposes of this Agreement, the "Company" shall include all employees,owner/operators, subcontractors,agents and representatives, including all persons operating under the Company's permit(s)and all persons driving vehicles marked with the Company's -5- name and/or graphics. The Company agrees that all vehicles used in its operations to and from the Airport shall be clearly marked and identifiable as Company vehicles, including all such markings and notices as the certifying agency shall require. Neither drivers of the Company's vehicles nor any other employees, owner/operators or agents of the Company shall solicit or conduct business in any portion of the Air-Carrier Terminal or anywhere on the Airport property by "hawking" or other unbusinesslike, noisy or disruptive conduct. All vehicle drivers shall stay in their vehicles except to load baggage after being hired,to unload baggage after unloading passengers at the Airport or to reasonably use the public facilities at the Airports defined herein. Taxi and/or limousine drivers may only porter passenger's baggage: (1) If curbside porter service is not reasonably available,the passenger(s) has,without solicitation by the driver, so requested such assistance and leaving an unattended vehicle would not cause or aggravate traffic congestion(while this section may not be used as a defense against a traffic charge of leaving an unattended vehicle, any driver who believes these circumstances are available may ask for situational confirmation/permission to operate under this section from a Regulation Enforcement Officer); or (2) The driver is claiming and delivering delayed baggage under contract. B. No taxicabs, limousines, or buses except those acting under an Airport Commercial Operating Permit shall pick up passengers for hire at the Aspen/Pitkin County Airport. C. If so requested by the Airport,the Company shall provide at the start of this term, maintain and promptly update as necessary throughout the term a complete list of all Company drivers, including employees, agents, owner/operators and subcontractors, and their dates of birth and current, valid drivers' license numbers. All Company drivers shall possess valid drivers' licenses of a class appropriate to their occupation. D. If Company operates under the authority of the PUC/FHWA,the Company shall provide at the start of this term,maintain and promptly update as necessary throughout the term, a list of the Company vehicles operating at the Airport, including Company identification number, PUC/FHWA number if appropriate, Colorado registration number,vehicle identification number(VIN), make, model, year, color and all records of safety inspections and compliance certificates. All vehicles shall have current valid PUC/FHWA inspections and the Company shall be responsible for documenting said compliance. No vehicle shall operate on the Airport that is not included on such list and otherwise in compliance with this Agreement, the PUC/FHWA authority and/or the Commercial Operating Permit. The County reserves the right to conduct its own safety and license compliance inspections of Company vehicles and drivers operating at the Airport,without notice and at such times and in such manner as the County, in its reasonable discretion, believes to be necessary for the safety of Airport passengers. Such inspections shall include, without limitation,compliance with PUC/FHWA inspections and requirements, windshields, windshield wipers, lights,tires and braking. If a safety defect in any vehicle is discovered during such inspection, the vehicle shall not be permitted to operate at the Airport thereafter until the defect has been repaired. The specific vehicle must display a Company identification number displayed in a conspicuous location in contrasting letters. E. If a surcharge is added to a fare to cover the costs of administration of County requirements hereunder pursuant to PUC/FHWA regulations,the surcharge shall be limited to the estimated costs per loaded vehicle leaving the Airport and notice of the surcharge, in language satisfactory to the County, shall be included on the required PUC/FHWA notice sheet. -G- F. Enforcement. Enforcement of the operational requirements of this Agreement, Title IV, of the Pitkin County Code(Airport Regulations), specific Ground Transportation Rules and Regulations, other regulations set forth in Section 8 of the Airport Commercial Operating Permit and Regulations promulgated from time to time by the Director of Aviation,may be through the Penalty Assessment Procedure(Article 50, Airport Regulations), County Court Summons procedure or the County Adjudicatory Hearing. Nothing herein shall be construed to limit the County's remedies with regard to defaults under this Agreement or violations of the State Criminal Code or other state, Federal and local laws and regulations; all remedies of the County are expressly declared to be cumulative,unless otherwise provided by law. In this license term,two violations by an individual driver of the following list shall result in his/her mandatory minimum suspension from operations to or from the Airport for one year; three violations by any one Company's drivers of the following list shall result in that Company's mandatory minimum suspension from operations to or from the Airport for one year. Violations subject to this mandatory minimum suspension are as follows: (1) Commission of a violent act(e.g. striking or fighting)against another person or active participation(except in a peace-keeping capacity) in a violent incident at the Airport. (2) Conviction of the Colorado Criminal Code of misdemeanor or felony status for conduct taking place on the Airport. (3) Careless or Reckless driving on the Airport. (4) Driving a taxi, limo or bus while under the influence of alcohol or drugs, or driving the same while ability is impaired by alcohol or drugs on the Airport. (5) Operation of vehicles without proper PUC/FHWA markings,without current PUC/FHWA inspections or in an unsafe condition at the Airport. (6) Knowingly misrepresenting charges and/or overcharging for carriage or services to passengers to or from the Airport. (7) Willfully failing to pay fees to County. (8) Willfully damaging equipment, improvements or facilities at the Airport owned by any person. (9) Unpermitted pickup of passengers at other than permitted loading zones at the Airport. (10) Behavior indicating willful disregard of life, health or safety of persons on the Airport. To be subject to this mandatory minimum suspension, such violations shall be separate, unrelated and non-continuous. Nothing herein shall be construed to limit the right of a Hearing Officer from ordering suspensions for various periods for lesser or different violations if the facts provided at any hearing so warrant. 6. QUALITY OF SERVICE/COMPLAINT RESOLUTION/PERFORMANCE REVIEW BY COUNTY. A. The Licensee shall conduct its commercial operations hereunder in a manner consistent with the standards of first-class commercial operators in first-class resort communities throughout the United States. B. Licensee acknowledges that the County has an interest in resolving any complaints arising from the Licensee's operations, both as owner/operator of the Airport and as holder of police power within the County. Based on the foregoing, in the event that County shall receive any complaint arising from Licensee's operations, County shall immediately transmit such complaint to Licensee for resolution. Within five(5) business days of the receipt of the complaint,Licensee shall provide to the Director of -7- Aviation,or his/her designee, a written report of the complaint and its resolution or of Licensee's attempts at resolution. Failure by Licensee to resolve a great majority of these complaints and/or to correct the underlying cause of these complaints to the satisfaction of the Director of Aviation shall be grounds for non-renewal of this Agreement. C. At least once annually hereunder, Licensee shall be entitled, at its request, to a written evaluation of its performance under this Agreement from the Director of Aviation. This report shall contain specific areas in which performance has been unsatisfactory or satisfactory and specific standards for satisfactory performance. 7. AIRPORT REGULATIONS ENFORCEMENT AND TRAFFIC CONTROL. The County shall provide ground transportation supervision to all vehicular traffic and pedestrians at the Airport during periods, which it determines to be the peak airport operational hours during the normal Pitkin County tourist seasons. Such officers shall be the employees of the County and have the right to direct the officers, agents,drivers,owner/operators and employees of the Company. The purpose of such officers shall be to direct the expeditious and efficient loading and unloading of passengers and baggage utilizing the Airport,to control vehicles, pedestrians and parking within the designated areas of the Airport and to assure compliance with the operational requirements and Rules and Regulations relating thereto. 8. PAYMENTS. All fee payments hereunder shall be made without demand at the Pitkin County Treasurer's Office, Pitkin County Courthouse, 506 East Main Street, Suite 201, Aspen, Colorado, 81611 and shall be made in legal tender of the United States. Any checks given to the County shall be made payable to "Pitkin County" and shall be received by it subject to collection. Sums which remain unpaid to the County more than ten(10)days after the same shall become due shall bear interest at the rate of two(2%)percent per month from and after the due date thereof until paid in full. 9. UTILITIES. The County,at its expense and in its reasonable discretion, will furnish normal illumination, standard grounded electrical outlets, phone conduit to the booth herein licensed and heat for the premises of the Company in the said Air Terminal, subject to the provisions of paragraph 4.C. 10. CARE OF AREA. A. The Company agrees to keep and maintain all areas occupied or used by it in the Air- Carrier Terminal or on the Airport in a neat,clean, safe, sanitary and orderly condition at all times, and keep such areas free at all times of all paper, rubbish and debris; and will use the premises as to not injure them,except for ordinary wear and tear resulting from lawful use in accordance with the terms of this Agreement. B. The County shall remove snow from and provide general maintenance for the taxi, limousine and bus ready areas and baggage handling areas,as well as all public-access roads within the Airport. The Company shall be responsible jointly with other users thereof for policing and cleanup of the taxi, limousine and bus ready areas and shall cooperate with the County in order to accommodate the efficient removal of snow therefrom and the performance of general maintenance thereon. 11. SIGNS. The Company agrees that no signs or advertising materials shall be painted on,erected, placed or displayed in any manner upon the licensed area or any other portions of the Airport which is not in compliance with the Aspen/Pitkin County Airport Graphic Standards, and without the prior specific written approval of the Director of Aviation or his/her authorized representative. -8- 12. REMOVAL OF EQUIPMENT. All equipment and property placed by the Company at its expense in,on or about the licensed area, including all trade fixtures temporarily affixed to the realty but which may be removed without damage thereto, shall remain the property of the Company, and the Company shall have the right at any time during the term hereof,when not in default hereunder,to remove all such equipment, property and trade fixtures; provided, however, that such removal shall be accomplished without damage to the Terminal or upon prompt repair of such damage by the Company. All property placed by the Company at its expense in, on or about the premises and affixed to the realty so that same cannot be removed without damage, shall become the property of the County and shall not be removed by the Company at any time, except that the County reserves the right to require the Company to remove the same and restore the premises to the same condition as existed at the commencement of the term hereof,ordinary wear and tear, fire and other casualty excepted. 13. RIGHT OF INSPECTION. It is mutually agreed that the County's duly authorized representative(s) shall have at any and all times the full and unrestricted right to enter the licensed and used areas for the purpose of inspecting or protecting such premises and of doing any and all things with reference thereto which the County is obligated to do as set forth herein or which may be deemed necessary for the proper general conduct and operation of the Airport or in the County's police power. 14. DAMAGE TO OR DESTRUCTION OF PREMISES. In the event the areas covered hereunder or any portion thereof shall be destroyed or damaged by fire or otherwise, to any extent which renders them unusable, the County may rebuild or repair such destroyed or damaged portions and the obligation of the Company to pay the booth fees hereunder shall abate as to such damaged or destroyed portions during the time they shall be unusable if no substitute temporary facilities are provided during such repair and rebuilding. In the event the County shall elect not to proceed with the rebuilding or repair of the major portion of the premises(if so destroyed or damaged), within a period of ninety(90) days after the destruction or damage,the Company, may, at its option, cancel and terminate this Agreement. 15. INDEMNITY. A. As further consideration hereunder,the Company and its officers,employees, agents, representatives and subcontractors shall release, discharge, indemnify and hold harmless the County of Pitkin(including Aspen/Pitkin County Airport)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 caused by, arising out of or in connection with any negligent act, intentional act, error or omission by the Company(as defined above)or for any resulting liability alleged to accrue against the County on account of the Company'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. B. The Company further shall investigate,process, respond to, adjust, provide defense for and defend,pay or settle all claims,demands, or lawsuits related hereto at its sole expense and shall bear all other costs and expenses related thereto, even if the claim, demand or lawsuit is groundless, false or fraudulent. 16. INSURANCE. A. In whole or in.part,the Company 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 as named additionally insured), and others -9- as specified, from claims for bodily injuries, death, personal injury or property damage,which may be caused, arise out of or result from the acts, errors or omissions of the Company and its officers, employees,agents, representatives and subcontractors. The minimum insurance requirement prescribed herein shall not be deemed to in any way limit the obligations of the Company hereunder. The following insurance coverage, at or above the limits indicated and including such endorsements as are indicated by an "X", are required: (1) Statutory Workers' Compensation: Colorado statutory minimums (2) Commercial General Liability—ISO 1996 Form or equivalent Each Occurrence Limit $1,000,000 General Aggregate Limit $2,000,000 Products/Completed Operations Aggregate Limit $2,000,000 Comprehensive Form(All risks)to include: x Premises/Operations _Underground, Explosion & Collapse Hazard x Products/Completed Operations x Contractual Liability x Independent Contractors and Subcontractors x Broad Form Property Damage x Personal Injury (3) Business Auto Coverage: Combined Single Limit Liability(each accident) $1,000,000 Coverage to include: x Any auto _AII Owned Autos _Hired Autos _Non-Owned Autos _Garage Liability B. To provide evidence of the required insurance coverage, 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 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 this Agreement and grounds for rescission or termination. These Certificates of Insurance shall contain a provision that coverage afforded under the policies will not be canceled or materially altered unless at least thirty(30)calendar days prior written notice by certified mail,return receipt requested(effective upon proper mailing),has been sent to the County(through the Director of Aviation). (For purposes of this provision, "materially altered" shall mean a change affecting the coverage required herein, including a change to policy limits as set out in the then-current policy declaration page.) Simultaneously with the Certificates, Licensee shall file and update as necessary a certified statement as to claims pending against required coverage, reserves established on account of such claims, defense costs expended and amounts remaining in policy limits. C. In addition,these Certificates of Insurance shall contain the following clauses: (1) The clause."other insurance provisions," in a policy in which the County of Pitkin is named as an insured, shall not apply to the County of Pitkin. -io- (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. (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. (4) Location of operations shall be: "all operations commencing or terminating at the Airport and locations at the Airport in connection with the Use and License Agreement". D. Certificates of Insurance for all renewal 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 this Agreement or thereafter. 17. PATENTS AND TRADEMARKS. The Company represents that is the owner of or fully authorized to use any and all services, processes, machines, articles, marks, signs, names or slogans to be used by it in its operations under or in anywise connected with this Agreement. The Company agrees to save and hold the County, its officers, employees, agents and representatives, free and harmless of and from any loss, liability, expense, suit or claim for damages in connection with any actual or alleged or actual unfair competition or other similar claim arising out of the operations of the Company under or in anywise connected with this Agreement. 18. MASTER PLAN(AIRPORT AND TRANSITI/RATES AND CHARGES. Company acknowledges that the County is conducting Airport and Transportation master planning which may include,without limitation, the construction and operation of a public mass transit ground-transportation system,which may restrict or prohibit private vehicular access to the Airport, and the re-configuration or reconstruction of the Airport entrance/frontage road/traffic circulation system and the Company hereby releases the County and waives any claim for damages arising therefrom. Further, the Company agrees to co-operate fully in such planning efforts and to provide such information as is reasonably requested by the County. The County agrees that it shall make reasonable efforts to plan and shall construct such systems to avoid unreasonable restriction upon the access to the Airport. Company further acknowledges that the County conducts annual and on-going rates and charges analysis and has made no representation to Company regarding rates, fees, charges or compensation to County in any form whatsoever after the expiration of the initial term of this Agreement. 19. THIRD PARTIES. This Agreement does not, and shall not be deemed or construed to confer upon or grant to any third party or parties(excepting parties to whom the Company may assign this Agreement in accordance with the provisions hereof, and excepting any successor to the County)any right to claim damages or to bring any suit, action or other proceeding against either the County or the Company because of any breach hereof or because of any of the terms, covenants, agreements and conditions herein contained. 20. TAXES AND LICENSES. The Company agrees to pay promptly all taxes, excises, license fees and permit fees of whatever nature, applicable to its operation at the Airport, and to take out and keep current all licenses,municipal, state(including, specifically, required PUC/FHWA licenses and permits) or federal, required for the conduct of its business hereunder,and further agrees not to permit any of said taxes, excises or licenses fees to become delinquent. The Company also agrees not to permit any mechanic's or any other lien or statutory claim to become attached or be foreclosed upon the property herein above described, or any part or parcel thereof, by reason of any work or labor performed or materials furnished. The Company further agrees to furnish the County upon request, duplicate receipts or other satisfactory evidence showing the prompt payment by it of social security, unemployment compensation, withholding, all required licenses and all taxes. The Company further agrees to pay promptly when due all bills, debts and obligations incurred by it in connection with its operation of said business at said Airport, and not to permit the same to become delinquent, and to suffer no lien, mortgage,judgment, execution or adjudication in bankruptcy which will in any way impair the rights of the County under this Agreement. 21. COMPLIANCE WITH ALL LAWS AND REGULATIONS. The Company agrees not to use or permit the licensed and used areas to be used for any purpose prohibited by the laws of the United States or the State of Colorado or the Code or Regulations of the County of Pitkin, and it further agrees that it will use the areas herein described in accordance with all general rules and regulations adopted by the County for the government and operation of the Airport, either promulgated by the County on its own initiative or by or in compliance with regulations or actions of any federal agency authorized to regulate flights to and from said Airport. The Company further agrees to submit any relevant report or reports or information regarding its operations that the Director of Aviation may request. The Company agrees to abide by and conform to the then-current Airport Security Plan. The Company further agrees to promptly pay any fines assessed by the Federal Aviation Administration (FAA)as a result of a security violation by the Company, its officers, employees, agents or subcontractors. 22. NON-EXCLUSIVE. The Company acknowledges that this Agreement is non-exclusive and that the County has the right to grant such other licenses, franchises, leases, concessions and/or permits as it deems, in the exercise of its discretion that, in the sole opinion of the County, are necessary or desirable to the efficient or economical operations of the Airport. 23. DEFAULT AND TERMINATION 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: A. Incidents of Default by Lessee. The following acts or omissions by Lessee are agreed to be Incidents of Default: 1. Failure to make full and timely payments of rent, additional rent or other fees or charges due and payable hereunder; or 2. The creation, maintenance, failure to correct or sufferance of a dangerous or hazardous condition on or emanating from the Premises; or 3. Failure to obtain, maintain in full force and effect and/or provide proof of all required types, forms and amounts of insurance; or 4. Failure to provide and maintain current and required performance and payment surety and proof thereof, or 5. Making an assignment,conveyance or transfer of its rights and obligations hereunder without the consent of County; or 6. 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 7. Failure to comply with any other obligation under this Lease and Use Agreement. B. Notice of Default. Upon the occurrence of an Incident of Default by Lessee hereunder, Lessor 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)therefor acceptable to Lessor. C. Lessee's Right to Cure. Lessee shall have the right to cure an Incident of Default, unless Lessee has abandoned the Premises, 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 Lessor 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: -12- 1. 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 2. Within ten (10) calendar days if the default is failure to make full and timely payments hereunder; or 3. 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. If, in the discretion of Lessor,a cure acceptable to Lessor is promptly undertaken and diligently prosecuted by Lessee and the cure required cannot reasonably be completed within the foregoing time periods, Lessor may, upon timely request and proof of such mitigating circum- stances 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. D. Lessor's Rigbt to Cure. If Lessee should fail to cure any default hereunder within the time herein permitted, or if a dangerous or emergency situation exists at any time, Lessor, without being under any obligation to do so and without thereby waiving such default,may make such payment and/or remedy such other default for the account of Lessee(and enter the Premises for such purpose), and thereupon Lessee shall be obligated, and hereby agrees, to pay as Additional Rent, all reasonable costs, expenses and disbursements (including reasonable attomeys' fees) incurred by Lessor in taking such remedial action. Such action taken by Lessor may include commencing, appearing in, 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 Premises. E. Lessor's Ri hg is Upon an Uncured Default. If the Premises have been abandoned by Lessee or if an Incident(s)of Default noticed as provided herein remains uncured after the cure period specified or extended, Lessor, at its option and in its sole discretion, may thereafter either terminate Lessee's possessory rights under this Lease or terminate the Lease itself and all of Lessee's rights hereunder or both in sequence, by Notice to the Lessee. F. Termination of Lessee's Possessory Rights. If Lessor gives Notice of Termination of Lessee's Possessory Rights, the following substantive and procedural elements shall apply: 1. Lessor shall re-take possession. Lessee shall immediately and peacefully surrender the Premises to the Lessor and, if Lessee fails to do so, Lessor, without prejudice to any other remedy which Lessor may have for possession, damages, or arrearages in rental, may enter upon and take possession of the Premises through legal process or, if no individual person is then actually on or about the Premises and breach of the peach can be avoided, without use of legal process. Thereafter Lessor may possess,hold and use the Premises and may alter all locks and other security devices thereon. Unless Lessor 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. 2. In the event of any such termination of Lessee's possessory rights,Lessee shall continue to pay to the Lessor all monthly payments of all Base Rent and any Additional Rent required to be paid by Lessee to Lessor during the remainder of the Term until the date of expiration of the Term, adjusted as follows: a) Plus all such amounts accrued prior to repossession; b) Plus expenses of Lessor arising from repossession; -1 3- c) Minus amounts received by Lessor through re-letting. 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 Lessor as provided in this Section may be brought from time to time, on one or more occasions,without the necessity of Lessor's waiting until the expiration of the Term. d) Lessor may sub-let or re-let. At any time after such re-taking of possession by Lessor, Lessor may sublet or relet the Premises or any part thereof, 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 Lessor, in Lessor's absolute discretion, may determine, and may collect and receive the rents therefor. 1) In the event that Lessor shall have taken possession of the Premises pursuant to the authority herein granted,then Lessor shall have the right to keep in place and use all of the trade fixtures, leasehold improvements, furnishings and equipment of the Premises, including that which is owned by or leased to Lessee, at all times prior to any foreclosure thereon by Lessor or repossession thereof by a lessor thereof or third party having a lien thereon. 2) Lessor also shall have the right to remove from the Premises (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 premises within the County in which the Premises are located, and in such event, Lessee shall be liable to Lessor for reasonable costs incurred by Lessor in connection with such removal and storage and shall indemnify and hold Lessor harmless from all loss, damage, cost, expense an liability in connection with such removal and storage. 3) Lessor 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 thereof who present to Lessor a copy of any instruments represented to Lessor 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, without the necessity on the part of Lessor to inquire into the authenticity of said instrument's copy of Lessee's or Lessee's predecessor's signature thereon and without the necessity of Lessor's making any nature of investigation or inquiry as to the validity of the factual or legal basis upon which Claimant purports to act; and Lessee agrees to release Lessor from any liability and to indemnify and hold Lessor harmless from all cost, expense, loss, damage and liability incident to Lessee's relinquishment of possession of all or any portion of such furniture, fixtures,equipment or other property to Claimant. 3. The rights of Lessor herein stated shall be in addition to any and all other rights which are created elsewhere in this Lease or which Lessor has or may hereafter have at law or in equity; and Lessee stipulates and agrees that the rights herein granted Lessor are commercially reasonable. -14- G. Termination of the Lease. If Lessor gives Notice of Termination of the Lease,the following substantive and procedural elements shall apply: I. Lessor 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. 2. 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), Lessor shall have and exercise all rights of ownership of the Premises, and Lessee shall pay to the Lessor in one lump sum the sum of all Base Rent and Additional Rental and other indebtedness to Lessor accrued to date of such termination, plus, as and for liquidated damages for Lessee's default, an amount equal to the present value of the total Base Rent 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 Lessor 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 Lessor. If such sum is not paid to Lessor 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. H. Not a Surrender. Exercise by Lessor of any one or more remedies herein granted or otherwise available shall not be deemed to be an acceptance of surrender of the Premises by Lessor, 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 Lessor. No alteration of locks or other security devices and no removal or other exercise of dominion by Lessor over the property of Lessee, or others at the Premises shall 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 Premises. 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. I. Property Left on Premises. Any property of Lessee, or of anyone claiming under, by, or through Lessee, which is left on the Premises more than fifteen days after expiration of the Term or termination of possessory rights shall be conclusively deemed abandoned, and Lessor may keep, use, remove, store, sell, destroy,discard, or otherwise deal with it in Lessor's absolute discretion without liability of any sort to Lessee or anyone claiming under,by,or through Lessee. J. Costs of Default. In case of any Event of Default, Lessee shall also be liable for and shall pay to Lessor, in addition to any sum provided to be paid above, all costs, expenses and fees associated with providing Notice of the Default and enforcing Lessor's rights hereunder 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 Premises into condition acceptable to a new Lessee or Lessees; advertising costs; all reasonable expenses incurred by Lessor in enforcing or defending Lessor's rights and/or remedies, including reasonable attorneys'fees; and a sum equal to$75 for each hour that any employee or agent of Lessor, spends in connection with obtaining the right to relet, rendering suitable for reletting,and attempting to relet the Premises or any part thereof. K. Lessor's Duty to Relet. In the event of termination of possessory rights or repossession of the Premises for an Event of Default, Lessor shall not have any greater obligation to relet or attempt to relet the Premises, or any portion thereof, or to collect rental on the Premises after reletting than is -15- required by applicable law with respect to mitigation of damages; and in the event of reletting, Lessor may relet the whole or any portion of the Premises for any period,to any Lessee, and for any use and purpose. L. Default by Lessor; Lessee's Remedies. In the event of any default by Lessee, Lessee's exclusive remedy shall be an action for damages, but prior to any such action Lessee will give Lessee written notice specifying such default with particularity,and Lessee shall thereupon have 20 days(or such longer period as may be necessary in the circumstances) in which to cure any such default. Unless and until Lessee fails so to cure any default under such notice, Lessee shall not have any remedy or cause of action by reason thereof. All obligations of Lessee hereunder will be construed as covenants, not conditions; and all such obligations will be binding upon Lessee only during the period of its ownership of the Building and not thereafter. M. 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. 24. NOTICES. All notices required to be given to the County hereunder shall be given by hand- delivery or certified mail,return receipt requested, addressed to the Director of Aviation, Aspen/Pitkin County Airport, 0233 Airport Road, Suite A,Aspen,Colorado 81611; with a copy to the Board of County Commissioners of Pitkin County, Colorado,c/o County Manager, 506 East Main Street, Aspen, Colorado, 81611;all notices required to be given to the Company hereunder shall be given by hand- delivery or certified mail,return receipt requested, addressed to as specified on the signature page hereof, provided,however,that either party hereto may designate in writing from time to time the addresses of substitute or supplementary persons within the State of Colorado to receive such notices. The effective date of service of any such notice shall be the earlier of the date such notice is hand-de- livered to the other party or three(s) calendar days after proper mailing thereto. 25. WAIVERS. No waiver of default by the County of any of the terms, covenants or conditions hereof to be performed, kept and observed by the Company shall be construed as or operate as a waiver by the County of any subsequent default of any of the terms,covenants or conditions herein contained to be performed, kept and observed by the Company. 26. ASSIGNMENT. The Company covenants and agrees not to assign, sublet, encumber, pledge or transfer any of its rights in this Agreement, in whole or in part, nor grant any license or concession here- under, without first obtaining the written consent of the County. A transfer of more than thirty percent (30%)of the issued and outstanding capital stock of the Company(or other ownership interest in the Company),whether by a single transaction or in the aggregate, shall be construed to be a transfer or assignment requiring the consent hereunder. 27. AGREEMENT SUBORDINATE TO AGREEMENTS WITH UNITED STATES. This Agreement is subject and subordinate to the terms, reservations, restrictions, and conditions of any existing or future agreement between the County and the United States, relative to the operation or maintenance of the Airport,the execution of which has been or may be required as a condition precedent to the expenditure of federal funds for the development of the Airport. 28. AGREEMENT BINDING. This Agreement shall be binding on and extend to the successors and assigns of the respective parties hereto. 29. PARAGRAPH HEADINGS. The paragraph headings contained herein are for convenience in reference only and are not intended to define or limit the scope of any provision of this Agreement. -16- 30. AGREEMENT MADE IN COLORADO. This Agreement shall be deemed to have been made in, and construed in accordance with the laws of, the State of Colorado, and venue is agreed to be ex- clusively within the Courts of Pitkin County, Colorado. 31. MANAGER'S AUTHORIZED REPRESENTATIVE. Wherever reference is made herein to the "Director of Aviation or his authorized representative," or words of similar import are used, the Board of Pitkin County Commissioners shall be such until written notice otherwise is hereafter given to the Company. 32. NO DISCRIMINATION. The Company, for itself, its successors and assigns, as a part of the consideration hereof, does hereby covenant and agree that in the event facilities are constructed, maintained, or otherwise operated on the property covered hereby for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provision of a similar service or benefit,the Company shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21,Nondiscrimination in Federally-assisted program so the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964,and as said regulation may be amended. In addition, the Company agrees to comply with the letter and spirit of the Colorado Anti-discrimination Act of 1957, C.R.S. 24-34-401 et sec.., as amended. That in the event of breach of any of the above nondiscrimination covenants, which breach shall not be immediately cured, the County shall have the right to terminate the Agreement and to reenter and repossess the license area, covered hereby and the facilities therein and thereon, and hold the same as if said Agreement had never been made or issued. The right of termination contained in this paragraph shall be in addition to those contained in elsewhere herein and may be exercised separately therefrom without written notice. 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 concession agreement, management contract, 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. 33. ILLEGAL ACTS. The parties hereto aver that they are familiar with the Pitkin County Procurement Code, C.R.S. 18-8-301 et se .,(Bribery and Corrupt Influences) and C.R.S. 18-8-401 et sec.., (Abuse of Public Office), and that no violation of such provision is present. 34. CONFLICT OF INTEREST. The parties aver that to their knowledge, no County employee has any personal or beneficial interest in this contract. 35. ATTORNEY'S FEES. If legal action is necessary to enforce any of the provision of this Agreement,the prevailing party shall be entitled to its attorney's fees,plus costs, including expert witness fees. 36. AMENDMENTS. This Agreement is agreed by the parties to represent the complete Agreement of the parties and includes any and all prior representations, statements and agreements,whether oral or written. This Agreement may only be amended or modified in a writing signed by both parties and approved by the Board of County Commissioners acting at a regular meeting. -17- IN WITNESS WHEREOF,the parties have executed this Agreement, as follows: County: Licensee: THE BOARD OF COUNTY COMMISSIONERS SNOW LIMO OF PITKIN COUNTY,COLORADO P.O. Box 1471 Aspen, CO 81612 i By: ' Michael Ireland,Chair By `` f u tr �¢eur Date Date 4(SEA ATTEST: ty Clerk Corporate Sec etary (SEAL) coo SEAL ; �r r O COLORw� County's Address (for receipt Licensee's Address(for receipt of Notices hereunder): of Notices hereunder): SNOW LIMO c/o Director of Aviation P.O. Box 1471 0233 East Airport Rd., Ste. A Aspen, CO 81612 Aspen, Colorado 81611 cc: County Attorney 530 East Main Street Aspen, CO 81611 RECOMMENDED FOR APPROVAL: APPROVED AS TO BUDGET: Ja Elwood Tom Oken Aviation Director Director, Admin. Services _Is. APPROVED AS TO FORM: John Ely County Attorney Ris Managemen Date NOTE: Attached and considered as part of this agreement is the Required Clauses document marked as Exhibit`B". -19- RECOMMENDED FOR APPROVAL: COUNTY MANAGER kl"- /, - // -) .o/ Hilary F 6m h Date County MInfager EXHIBIT`B" REQUIRED CLAUSES For purposes of these Required Clauses,"Contractor"means Snow Limo. 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 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. -20- 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 sub-contract and solicitation therefor. G. Conspicuously means written in such special or distinctive format,print,or manner that a reasonable person against whom it is to operate ought to have noticed it. H. Remedies. In addition to other remedies it may have for breach of the prohibitions against contingent fees,gratuities,kickbacks and conflict of interest,the County shall have the right to: (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/NIINORITY/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. 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 _zi_ 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. INTEGRATION AND MODIFICATION A. The Agreement constitutes the full and complete agreement of the parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, the Contractor understands that unless the contact is for goods or services of a value less than $50,000, no County official or employee,other than the Board of County Commissioners acting as a body at a Board meeting,has authority to enter into a contract or to modify the terms of the Agreement on behalf of the County. Any such contract or modification to this Agreement must be in writing and be executed by the parties hereto. B. With respect to change orders under the Agreement,the County and the Contractor shall process and approve/disapprove requests for change orders as otherwise provided in this Agreement, subject to the requirements of the Procurement Code and the Finance Office. 5. EXEMPTIONS AND PREFERENCES A. All purchases of construction or building or any other materials for this Agreement shall not include Federal Excise Taxes or Colorado State or local sales or use taxes. Pitkin County is exempt from such taxes under registration numbers 98-02624 and 84-78000-5K. B. Pursuant to state statute and to the extent permitted by law,Colorado labor shall be employed to perform the work to the extent of not less than eighty percent(80%)of each type or class of labor employed on such project;except for highway construction,which is subject to C.R.S.43-2-208,which provides that all laborers shall be bona fide residents of Colorado with a preference to residents of the County where the work is performed. C. Preference is given,to the extent permitted by law,to: materials, supplies and provisions produced,manufactured or grown in Colorado,quality being at least equal to materials, supplies and provisions from outside the state;and to local(Roaring Fork Valley)services and labor of quality at least equal to non-local services and labor. 6. 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 -22- accounting and auditing standards,compliance with all provisions of the Agreement and applicable law. 7. 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. 8. CURRENT YEAR OBLIGATIONS The parties acknowledge and agree that any payments provided for hereunder or requirements for future appropriations shall constitute only currently budgeted expenditures of Pitkin County. Pitkin County's obligations under this Agreement are subject to Pitkin County's annual right to budget and appropriate the sums necessary to provide the services set forth herein. No provisions of the Agreement shall constitute a mandatory charge or requirement in any ensuing fiscal year beyond the then current fiscal year of Pitkin County. No provision of the Agreement shall be construed or interpreted as creating a multiple-fiscal year direct or indirect debt or other financial obligation of Pitkin County within the meaning of any constitutional or statutory debt limitation. This Agreement shall not directly or indirectly obligate Pitkin County to make any payments beyond those appropriated for Pitkin County's then current fiscal year. No provisions of this Agreement shall be construed to pledge or create a lien on any class or source of Pitkin County's moneys, nor shall any provision of this agreement restrict the future issuance of Pitkin County's bonds or any obligations payable from any class or source of Pitkin County's money. -23- NOTICE OF AWARD Date: October 31, 2001 TO: Snow Limo Pitkin County, having duly considered the Proposal submitted on October 18, 2001 for the office/counter space in the airport terminal building covered by the Contract Document titled License and Use Agreement, Ground Transportation for the monthly rent amount of$300.00, 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 and the said time 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"d Floor, Aspen CO 81611 or faxed to 970-920-5049. PITK�INNCOODUNNTY By'�. a 1 1' Y? SJIN . 10 �7AAt �O�M�m S I/1.0..1� _ (staff) (title) ++++++++++++++++ACCEPTANCE OF NOTICE++- ++ Receipt of the above Notice of Award is hereby acknowledged r, V,�' B ' " C,,� this Z day of�, 2001. Title e` 7b� , `1a't'A C� -24- �� WE i % 10 }�§ � _ � § &\ k ■ k �m Zt ]. 1 `. \ k � , oaf | ` �) « < 00 � ■ ° ) ko ~t [ I § \ < a ° ^ . . R ! § z2f uj « ©f . - 19 . . %krca ` L a� / » ) CQ ERE / \ wil 7 ■ l = |, ` k 'a �!■ . \ 1LN H |L . _ - ` _ �» - � 22 � . � N 11/06/2001 17: 21 3039698435 PAGE 01 i i J i i F1rsT Financial Insurance Company C ! A T I F 1 C A T C 0 f 1 N 3 U R A M C E THIS CERTIFICATE OF INSURANCE IS ISSUED ONLY FOR INFORMATIONAL PURPOSES. IT DOES NOT 1TBIFM ON THE CERTIFICATE MOLDER ANY RIGHTS OR COVERAGES ON REWIRE OF THE CERTIFICATE HOLDER ANY DUTIES OUTSIDE OF THE POLICY. THE ENTIRE POLICY MUST HE READ CAREFULLY TO DETERMINE RIGHTS, DUTIES, AND WHAT IS AND WHAT IS NOT COVERED. IP13RED: AUTHORIZED REPRESENTATIVE: SNOW LIMWSINE INC. PRDENIX ENTERPRISES INSURANCE MANAGERS ASPEN AIRPORT 13701 WEST JEWELL AVENUE ASPEN, CO 81611 LAKEWOOD. COLORADO 802U POLICY MASKIt1 POLICY EFFECTIVE DATE: POLICY EXPIRATION DATE: F 01974411250 01/14/01 01/14/02 COVERAGES: THIS IS TO CERTIFY THAT THE POLICY OF INSURANCE LISTED BELOW GAS BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERICO INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM IRA CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WIHICH THIS CERTIFICATE MAY BE ISGUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICY DESCRIBED NONMAN AM SUNJbCI 10 ALL THE TRANS, EXCLUSIONS AID CONDITIONS OF SUCH POLICY. TTPF nF INSURANCE (INDICATED AT X) LIMITS OF INSURANCE GENERAL LIABILITY GENERAL AGGREGATE S 2,000,000.00 X COMMERCIAL GENERAL LIABILITY PRODUCTS-COMP/SUS AGGREGATE S EXCLUDED PERSONAL B ADVERTISING INJURY S EXCLUDED EACH OCCURRENCE S 1,000,000.00 FIRE DANACE (Any One fire) S 100,000.00 MEDICAL EXPENSE (ARY me Person) 3 1,OD0.00 OTHER DESCRIPTION OF OPIRATIONS/LOATIONS/SPECIAL ITEMS: RESERVATION OWN AT AIRPORT RATED AS TAXICAB COMPANIES CERTIFICATE HOLDER: CANCELLATION: PITKIN COUNTY AIRPORT SHOULD THE ABOVE DESCRIBED POLICY BE CANCELLED BEFORE THE AIRPORT ROAD EXPIRATION DATE THEREOF. THE ISSUING COPANY WILL ENDEAVOR ASPEN, CO 81611 TO FAIL DAYS YIITTEN NOTICE TO THE CERTIFICATE MOLDER NAMED ABOVE, BUT FAILURE TO MAIL SUCH NOTICE SHALL IPME 9M-920-5376 HD OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, IYS AOENYS UM MEYIIBNENTAfAVNN. DATE CERTIFICATE ISSUED: 11/06/01 A�1219 RIP � A 1 SI v so-C-09 993 7�7 . �p,ecEy��? . oNme Nov . NOTICE TO PROCEED DATE: November 28, 2001 FROM: Edna Adeh Aspen/Pitkin County Airport Administration Office TO: Snow Limo You are hereby authorized to proceed on December 1, 2001 with the concession area covered by the Contract Documents titled License and Use Agreement, Ground Transportation for the monthly rent of$300.00 for the first contract year with a 4% increase over the preceding year for the second and for each additional renewal year. By: A4,-h Procurement Officer Date BY: County Attorney Date �J -25-