HomeMy WebLinkAboutbocc.con.301.2012 Rev. OS-30-11 jls
COUNTY CLERK'S
CONTRACT COVERSHEET
CONTRACT #: 301.2012
ORIGINATING DEPARTMENT: Airpot
PROCUREMENT OFFICER: Bj DeHerrera PHONE#: 4292850
PROJECT NAME: Terminal Booth Lease CONTRACTOR: St. Regis
DOLLAR AMOUNT: $5,772.80 LINE ITEM# 404.67.00000.65268
CONTRACT EXECUTION DATE: 12/1/2012 CONTRACT END DATE: 11/30/2013
AUTOMATIC RENEWAL: ❑YES �NO TERM: 12/1/2012- 11/30/2013
❑ BOCC AGENDA ITEM(Grants, IGA) ❑ STAFF AUTHORIZED SIGNATURE
(Requires BOCC Signature) (Per Revised Procurement Code 7/2005)
❑ OVER$50,000(Requires Section Leader&County Manager's Signature)
✓ CHECK PROCUREMENT TYPE:
❑None ❑ Informal �Formal ❑ Sole Source ❑ Emergency ❑ Outside Agency/State Bid
❑ Compliance with C.R.S. 8-17-5-101, 102 as amended(Immigration Form) ❑Exempt
❑Contract Renewal
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✓ CHECK CONTRACT TYPE:
❑ Services/Maintenance ❑Employment
❑License/Use ❑ Intergovernmental Agreement(Resolution Required)
�Lease ❑Non-Profit
❑ Construction ❑ Quasi-Public(e.g.-AVH)
❑ Goods,Equipment, Supplies ❑ Grant Agreements(Notify Finance&Resolution Required)
❑ Other(e.g.revenue) ❑ Change Order/Contract Amendment
(C/O: 10%or$25K whichever is the lesser must have County Manager signature)
All Contracts should be proofed and all e�chibits and notices must be attached for the following:
✓ �No Pages Missing ✓�All Other Blanks Filled In
✓ ❑If Page Left Intentionally Blank Note on Page ✓�All E�ibits Attached
✓ �Page numbered consecutively ✓�All Legal Descriptions attached (if applicable)
✓ �All Original Signatures Affixed ✓❑Notice of Award/Notice to Proceed Attached (ifapplicable)
✓ �All Dates Filled In ✓� Warranty(if applicable)
✓ ❑ Special Instructions for Finance Department:
✓ �Authorized Procurement Officer's Name: Bj DeHerrera
BY CHECHING ABOVE AND ENTERING NAME,THE AUTHORIZED STAFF PERSON INDICATES THAT
THE ATTACHED DOCUMENT HAS BEEN PROOFED AND READY FOR SCANNING.
NOTE: CLERK'S OFFICE WILL KEEP ORIGINAL DOCUMENTS IN COMPLIANCE WITH COLORADO STATE
ARCHNES RETAINAGE SCHEDULE. ALL ATTACHMENTS MUST BE WITH THIS CHECKLIST!
, c,
USE AND LICENSE AGREEMENT
AIR.PORT TERMINAL COUNTER SPACE
THIS AGREEMENT, made and entered into as of the date last below signed by and
between THE BOARD OF COLTNTY COMMISSIONERS OF PITKIN COIJNTY,
COLORADO, a Colorado home rule county (hereinafter the "County"), and i['�315 East
Dean Associates, Inc., dba The St. Regis Aspen Resort (hereinafter "the Company").
WITNESSETH:
WHEREAS, the County owns and operates the Aspen/Pitkin County Airport,
(hereinafter the "Airport") and the terminal building complex (hereinafter the "Terminal"
or the "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 autharity to regulate commercial activities on
Airport property and to enforce these regulations,pursuant to, inter alia, C.R.S. 41-4-101,
et sec�., the Pitkin County Airport Regulations (Title 10, Pitkin County Code); and
WHEREAS, the Company is regularly in the business of providing lodging
accommodations to area visitors, many of whom arrive in the area through the Airport;
and
WHEREAS, the County is willing to permit the Company to occupy and
maintain terminal counter space for the operation and coordination of a satellite guest
check-in booth 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
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WHEREAS, the Company is ready, willing and able to occupy and maintain such
counter space and perform its business functions there at in accardance with the terms,
standards and conditions hereinafter set out:
NOW, THEREFORE, for and in consideration of the terms, 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 approximately eighty
eight (88) square feet, depicted as St. Regis on the attached Exhibit "A".
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 current Airport Rules and Regulations which may be updated from time to
time, in common with other users of a similar class.
C. The County hereby grants commercial operating privileges for passenger
loading and unloading on the Airport through this Agreement pursuant to "Airport Rules
and Regulations"and Pitkin County Title X which may be up-dated from time to time.
2. TERM OF AGREEMENT. The term of this Agreement shall commence as of
12:00 a.m. local time on December 1 St, 2012 and shall expire at 11:59 p.m. local time on
November 30th, 2013. At the option of the County and in mutual agreement with the
Company and provided Company is not in breach and has performed in a satisfactory
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manner acceptable to the County, the County shall have the option to renew this
Agreement under terms and agreements acceptable to the County for up to two additional
one year periods. 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.
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 rent:
A. $64.00 per square foot per year, or four hundred sixty nine dollars
and thirty three cents ($46934)per month, paid in advance on the first day of each month
and each succeeding month far the license term. Rent may be increased by the County at
the same time the annual terminal rent is adjusted, upon thirty (30) days'notice. Partial
months shall be prorated. Payments shall be due as provided in Section 7 in advance by
the first of each month.
4. USE OF PREMISES.
A. The County hereby grants to the Company the right and privilege to
occupy the Terminal area described above at all times when the 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 counter to
provide for the remote satellite check-in for guests of the Company's properties. The
Company shall provide all personnel, supervision, equipment and supplies necessary to
operate its business.
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The booth, shall be open for business, staffed and supervised to coincide with the
current arriving air carrier flight schedule(s) that are in effect during the term of this
Agreement.
The booth shall be kept and maintained, whether staffed or unstaffed, in a clean,
orderly and business-like condition. The Company further agrees to use the area herein-
above 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 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 Company (or prorated
equitably among all users if more Companies 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 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.
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C. Said area provided for in paragraph 1.A., above, shall be subject to the
following:
1. The County shall provide, at no cost to the Company, the
unfinished shell booth area.
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. The use of public web-cams or similar
technology to broadcast video signals off-site is not permitted without the prior written
consent of the Director of Aviation.
E. The Company shall not interfere with (or permit interference by its agents) the
business or operations of any other lessee, Company, or permittee in the Terminal or on
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the Airport. Further, the Company shall not interfere with the County's contractual or
operational relationship to other lessees, Companies or Permittees in the Terminal or on
the Airport.
5. QUALITY OF SERVICE/COMPLAINT RESOLUTION/PERFORMANCE
REVIEW BY COUNTY.
A. The Company 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. Company acknowledges that the County has an interest in resolving any
complaints arising from the Company'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 Company's operations, County shall
immediately transmit such complaint to Company for resolution. Within five (5)
business days of the receipt of the complaint, Company shall provide to the Director of
Aviation, or his/her designee, a written report of the complaint and its resolution ar of
Company's attempts at resolution. Failure by Company 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, Company 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.
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6. 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.
7. PAYMENTS.All fee payments hereunder shall be made without demand at the
Pitkin County Treasurer's Office, Pitkin County Courthouse, 0233 East Airport Rd, Suite
A, 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.
8. UTILITIES. The County, at its expense and in its reasonable discretion, will
furnish normal illumination, standard grounded electrical outlets, and heat for the
premises of the Company in the said Terminal, subject to the provisions of paragraph
4.C.
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9. CARE OF AREA.
A. The Company agrees to keep and maintain all areas occupied or used by it
in the 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 publio-
access roads within the Airport. The Company shall be responsible jointly with other
users thereof for policing and cleanup of the t�i, 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.
10. SIGNS. The Company agrees that no signs or advertising materials shall be '
painted on, erected, placed ar displayed in any manner upon the licensed area or any
other portions of the Airport without the prior specific written approval of the Director of
Aviation or his/her authorized representative.
ll. REMOVAL OF EOUIPMENT. 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.
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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.
12. 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 ar 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.
13. DAMAGE TO OR DESTRUCTION OF PREMISES. In the event the areas
covered hereunder or any portion thereof shall be destroyed or damaged by fire ar
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.
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14. INDEMNITY AND INSURANCE.
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) ar
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.
C. To fund this indemnity, 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 as specified, from
claims for bodily injuries, death, personal injury or property damage, which may be
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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 Cornpany hereunder. The following insurance coverage, at or above the limits
indicated and including such endarsements as are indicated by an "X", are required:
(1) Statutory Workers' Compensation: Colorado statutorv 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 PersonalInjury
(3) Business Auto Coverage:
Combined Single Limit Liability (each accident) $1,000,000
Bodily Injury (per person per accident)
Property Damage (per accident)
Coverage to include:
x Any auto
_All Owned Autos
Hired Autos
Non-Owned Autos
_Garage Liability
D. 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
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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 declarations page.} Simultaneously
with the Certificates, Companv 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.
E. 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.
(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
Company.
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(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".
F. 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.
15. 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.
16. 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.
17. 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
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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.
18. 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
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Director of Aviation or designated representative may request. The Company agrees to
abide by and conform to the current Airport Security Plan which may be updated from
time to time. The Company further agrees to promptly pay any fines assessed by the
Federal Aviation Administration(FAA) or Transportation Security Administration as a
result of any violation by the Company, its officers, employees, agents or subcontractars.
19. 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.
20. 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
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4. Failure to provide and maintain cunent 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 far
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, County shall issue a written Notice of Default to Lessee (and its surety, if
applicable), which Notice shall specify the Incident(s) of Default asserted and a cure(s)
therefor acceptable to County.
C. Lessee's Ri.ght 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
County of Lessee's intention to cure and whether it agrees with the County' proposed cure
or has a counterproposal. The time periods for cure, after the effective date of any Notice
of Default, shall be:
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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 County, a cure acceptable to County is promptly
undertaken and diligently prosecuted by Lessee and the cure required cannot
reasonably be completed within the foregoing time periods, County may, upon
timely request and proof of such mitigating circumstances by the Lessee, extend the
period to cure by a reasonable time.
In the event of multiple Incidents of Default, the cure periods above shall be
concurrent, not consecutive.
D. County's Right 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, County, 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 attorneys' fees) incurred by County in taking
such remedial action. Such action taken by County may include commencing, appearing
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in, defending, ar 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. County's Rights 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, County, 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 County gives Notice of
Termination of Lessee's Possessory Rights, the following substantive and procedural
elements shall apply:
1. County shall re-take possession. Lessee shall immediately and
peacefully surrender the Premises to the County and, if Lessee fails to do so,
County, without prejudice to any other remedy which County may have for
possession, damages, or arrearages in rental, may enter upon and take
possession of the 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 County may possess, hold
and use the Premises and may alter all locks and other security devices
thereon.
Unless County so elects as provided no such termination of Lessee's
possessory rights shall cause a termination of this Lease or otherwise relieve
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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 County all monthly payments of all Base
Rent and any Additional Rent required to be paid by Lessee to County during
the remainder of the Term until the date of expiration of the Term, adjusted
as follows:
a) Plus all such amounts accrued prior to repossession;
b) Plus expenses of County arising from repossession;
c) Minus amounts received by County 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 County as provided in this
Section may be brought from time to time, on one or mare occasions,
without the necessity of County's waiting until the expiration of the
Term.
d) County may sub-let or re-let. At any time after such re-
taking of possession by County, County may sublet or relet the
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 County, in County's absolute
discretion, may determine, and may collect and receive the rents
therefor.
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1) In the event that County shall have taken possession
of the Premises pursuant to the authority herein granted, then County
shall have the right to keep in place and use all of the trade fixtures,
leasehold improvements, furnishings and equipment of the Premises,
including that which is owned by or leased to Lessee, at all times prior
to any foreclosure thereon by County ar repossession thereof by a
County thereof or third party having a lien thereon.
2) County 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 County for reasonable costs incurred by County in connection
with such removal and storage and shall indemnify and hold County
harmless from all loss, damage, cost, expense an liability in connection
with such removal and storage.
3) County also shall have the right to relinquish
possession of all or any portion of such property to any person
("Claimant") claiming to be entitled to possession thereof who present
to County a copy of any instruments represented to County by
Claimant to have been executed by Lessee (or any predecessor of
Lessee) granting Claimant the right under various circumstances to take
20
possession of such property, without the necessity on the part of
County 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 County'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 County from any liability
and to indemnify and hold County 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 County herein stated shall be in addition to any and all
other rights which are created elsewhere in this Lease or which County has or
may hereafter have at law or in equity; and Lessee stipulates and agrees that
the rights herein granted County are commercially reasonable.
G. Termination of the Lease. If County gives Notice of Termination of the
Lease, the following substantive and procedural elements shall apply:
1. �ounty 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),
County shall have and exercise all rights of ownership of the Premises, and Lessee
shall pay to the County in one lump sum the sum of all Base Rent and Additional
21
Rental and other indebtedness to County 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 County as a result of re-letting and the amount of rental loss for the same
period that Lessee proves could have been avoided through the exercise of such
mitigation efforts as are legally required of County. If such sum is not paid to
County on the termination date said sum shall bear interest at the Default Rate until
paid. For purposes of this section, "present value" shall be computed by
discounting the amount in question to present worth at a discount rate equal to one
percentage point above the discount rate then in effect at any commercial bank then
with an office in Pitkin County.
H. Not a Surrender. Exercise by County of any one or more remedies herein
granted or otherwise available shall not be deemed to be an acceptance of surrender of
the Premises by County, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of Lessee
and County. No alteration of locks or other security devices and no removal or other
exercise of dominion by County over the property of Lessee, or others at the Premises
shall be deemed unauthorized or constitute a conversion or a Lease tertnination. 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
22
waived, as are all claims for damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings or other legal process.
L 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 af the Term or termination of possessory rights shall be conclusively deemed
abandoned, and County may keep, use, remove, store, sell, destroy, discard, or otherwise
deal with it in County's absolute discretion without liability of any sort to Lessee 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 County, in addition to any sum provided to be paid above, all costs,
expenses and fees associated with providing Notice of the Default and enforcing County's
rights 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 County in enforcing or defending County's rights and/or
remedies, including reasonable attorneys' fees; and a sum equal to $75 far each hour that
any employee or agent of County, spends in connection with obtaining the right to relet,
rendering suitable for reletting, and attempting to relet the Premises or any part thereof.
K. County's Duty to Relet. In the event of termination of possessory rights or
repossession of the Premises for an Event of Default, County 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 required by applicable law with respect to
23
mitigation of damages; and in the event of reletting, County 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 County; Lessee's Remedies. In the event of any default by Lessee,
Lessee's exclusive remedy shall be an action for damages, but priar 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.
21. 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, 8161 l; 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 s�ecified on the si nag ture pa�e
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
24
receive such notices. The effective date of service of any such notice shall be the earlier
of the date such notice is hand-delivered to the other party or three(s) calendar days after
proper mailing thereto.
22. 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.
23. 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 hereunder, 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.
24. 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.
25. AGREEMENT BINDING. This Agreement shall be binding on and extend to the
successors and assigns of the respective parties hereto.
25
26. PARAGRAPH HEADINGS. The paragraph headings contained herein are for
convenience in reference only and are not intended to define ar limit the scope of any
provision of this Agreement.
27. AGREEMENT MADE IN COLORADO. This Agreement shall be deemed to
have been made in, and construed in accordance with the laws of, the State of Colorado,
and venue is agreed to be exclusively within the Courts of Pitkin County, Colorado.
28. 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.
29. 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 Antidiscrimination Act of 1957, C.R.S. 24-34-401 et se�c., as amended. That in
the event of breach of any of the above nondiscrimination covenants, which breach shall
26
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 ar 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.
30. 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 Tnfluences) and
C.R.S. 18-8-401 et se�c., (Abuse of Public Office), and that no violation of such provision
is present.
31. CONFLICT OF INTEREST. The parties aver that to their knowledge, no
County employee has any personal or beneficial interest in this contract.
32. 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.
27
33. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement, as follows:
THE BOARD OF COIJNTY COMMISSIONERS 315 East Dean Associates, Inc.
dba The St. Regis Aspen Resort
OF PITKIN COUNTY, COLORADO
Pitkin County, Colorado 315 East Dean Associates,Inc.
DBA The St. Regis Aspen Resort
The Sheraton LLC, a Sheraton
Operating Corporation
315 E. Dean St.
Aspen, CO 81611
B . Vendor:
J' Elwood By:
Director of Aviation Name: -�
Title: � d'
Signature
Date: �
28
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