HomeMy WebLinkAboutbocc.ord.046.2018 AN ORDINANCE OF THE: BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY,COLORADO,APPROVING AND ADOPTING AN AMENDMENT TO THE
LEASE AND USE AGREEMENT BETWEEN PITKIN COUNTY AND UNITED
AIRLINES, INC.
CONTRACT
ORDINANCE NO. -)/76 -2018
# 2`i- 366
RECITALS:
1 Pursuant to 30-35.301 C.R.S., the Board of County Commissioners of Pitkin County,
Colorado('BOCC"). a home rule county, is authorized to make and publish ordinances
for carrying into effect or discharging the powers and duties conferred upon such
counties by law and as seems necessary.
2. Pursuant to Section 2.8.1 of the Home Rule Charter("HRC.C"), the BOCC is authorized to
take official action by Ordinance for certain matters where action is prescribed pursuant
to the Colorado Revised Statutes as amended.
3. Pitkin County, a Colorado Home-Rule County, through the Board of County
Commissioners, is the owner, sponsor and operator of the Aspen/Pitkin County Airport
("the Airport") 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 gUa, C.R.S. Sections 30-11-107, 30-I5-401, 30-35-201/202, 41-4-101 et. seq.,as
amended, Title 10 of the Pitkin County Code, as amended and Section 8.7 of the Pitkin
County Home Rule Charter,as amended; and
4. United Airlines, Inc. r the Airline") is in the business of providing scheduled airline
service pursuant to an operating certificate issued by the FAA under FAR Par 121 or Part
135, and has requested permission to provide such service to and from the Airport and
has established its right to access to and occupancy and use of the Airport property as a
Signatory Airline by compliance with certain standards and obligations; and
5. Those Agreements set out certain space in the terminal facility for preferential use by the
Airline for the purpose of conducting their airline ticketing and passenger service
activities,and;
6. The Airline wishes to change location of that certain space in the terminal facility for
preferential use by the Airline,and such space is available for the relocation and;
7. In support of the provision of such airline service, the parties desire to enter into a Lease
and Use Agreement for the occupancy and use of the Airport by the Airline and;
8. The BOCC finds that adoption of this ordinance is in the best interest of the citizens of
Pitkin County.
9. The Board finds that adoption of this ordinance is necessary for the immediate
preservation of the public health,safety and welfare of the citizens of Pitkin County and
therefore, declares this ordinance and legislation to be effective immediately upon
adoption.
NOW,THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin
County, Colorado that it hereby adopts an Ordinance Approving and Amending to the Use and
Lease Agreement between Pitkin County and United Airlines, Inc. and authorizes the Chair or
the Chair's designee to sign the Ordinance and upon the satisfaction of the County Attorney as to
form, execute any other associated documents necessary to complete this matter.
,� ��� 1 -Y'/-� � . 2018 AND
INTRODUCED AND FIRST READ ON THE i DAY OF lit
F FOR SECOND READING AND PUBLIC HEARING ON THF, 2 _DAY OF
yW.aat ..« 2018.
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF TIE
ESOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE J 5.` DAY OF
l,' f.1 r'lac r_. 2018. — —
NOTICE OF PUBLIC !LEAKING AND THE FULL TEXT OF THE RESOLUTION POSTED
ON THE OFFICI I KIN COUNTY WEBSITE (www.piikincounty.com ) ON THE
711t11 DAY OF f-ch ✓ 2018.
i) !(C
ADO TED AFTER FINAL READING AND PUBLIC HEARING ON THE - DAY
OF r/ CIItkti- 2018.
PUBLISHED BY TITLE AND_CHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN
TIMES WEEKLY ON THE /' l6• DAY OF ‘ 4i��.1_« . 2018.
POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKJN COUNTY
WEBSITE (www.ptkincountv.com ) ON THE 77 DAY OF' , 11u,—.cv-i__, 2018.
ATTEESI !))T: 1/ BOAROFF�COUNTY COMMISSIONERS
le ette Jones y Patti Clapper, Chair
D uty County Clefk
Date: 11 _I3 --Pei?
APPROVED AS TO FORM: MANAGER APPROVAL
=� �._--
(John Ely, CsuntyrAnomey Jon eacoc CoCounty Manager
UNITED
CONTRACT
LEASE AND USE AGREEMENT 184283
Aspen/Pitkin County Airport
(Signatory Airline)
CONTRACT
if a-2
August 1, 2014
Lessor/Permittor: BOARD OF COUNTY COMMISSIONERS
OF PITPGNI COUNTY,COLORADO
530 East Main Street, Third Floor
Aspen,Colorado 81611
(970)920-5190 (Phone)
(970)920-5198 (Fax)
Lessee/Permittee: United Airlines, Inc.
233 South Wacker Drive, NDQOU, 11th floor
Chicago, Illinois 60606
(872) 825-8119 (Phone)
TABLE OF CONTENTS
RECITALS 3
I. INTENT AND INCORPORATION 4
1.1 Intent 4
1.2 Definitions 4
1.3 Exhibits 4
2. USE OF AIRPORT FACILITIES 5
2.1 Demise of Premises 5
2.2 Acceptance of Premises 5
2.3 Additional Premises and/or Uses 6
2.4 Additional Airport Fixtures and Equipment 6
2.5 County's Reserved Rights 6
2.6 Uses Permitted 7
2.7 Mr Carrier Accommodation 8
3. TERM 8
3.1 Term. . 8
3.2 Renewal Terms._. 8
3,3 Holding Over 9
3,4 Early Termination 9
4. FINANCIAL OBLIGATIONS OF AIRLINE.....» 9
4.1 Rent, Fees and Charges 9
4.2 Terms and Conditions of Payments 9
43 Payment of Taxes 10
4.4 Financial Security for all Airline Operations 10
5. OTHER OBLIGATIONS OF AIRLINE 11
5.1 Operations 11
5.2 Physical Security for Premises 11
5.3 Environmental Quality Improvement Plan (EQIP) 12
5.4 Reports 12
53 Cleaning, Maintenance and Repair and Replacement 12
5.6 Utilities 13
5.7 Snow Removal ». 13
5.8 Trademarks,Trade Names 13
5.9 Airline Performance Standards 13
5.10 Signs 14
5.11 Installadons/Additions/Alterotions/Improvemeots 14
5.12 Waste ... 14
5.13 Liens/Claims 14
5.14 County Pro-Competition Policy 15
5.15 Assignment 15
1
6. INDEMNITY AND INSURANCE 15
6.1 Airline Indemnity 15
6.2 Airline Insurance 16
6.3 County Insurance 16
7. OBLIGATIONS OF COUNTY 16
7.1 Operation of Airport 16
7.2. Utilities 16
73 Snow Removal 16
7.4 Maintenance, Cleaning and Repair .» 17
7.5 Quiet Enjoyment..._ 17
8. OTHER AGREEMENTS 17
8.1 Coordination with Others 17
8.2 Subjections, Exceptions and Reservations 17
8.3 Airport Master Planning and Land Use Planning 17
8.5 Compliance with Applicable Laws and Regulations 18
9. DEFAULT/TERMINATION/SURRENDER 18
9.1 Events of Default 18
9.2 Notice of Default 19
9.3 Right to Cure 19
9.4 Notice of Termination/Right to Re-Enter 20
9.5 Remedy not Exclusive 20
9.6 Surrender 20
10. GENERAL PROVISIONS 20
10.1 Notices 20
10.2 Entire Agreement 20
103 Severability 20
10.4 Modification 21
105 Non-Waiver 21
10.6 No Presumption 21
10.7 Relationship of Parties 21
10.8 Attorney Fees 21
10.9 Governing Law and Venue 21
10.10 Effect of Lease 21
10.11 Headings 21
10.12 Time of Essence 21
10.13 Limitation of Benefit 21
10.14 Capacity to Execute 22
10.15 Most Favored Nations Clause 22
10.16 Ground Handling 22
2
LEASE AND USE AGREEMENT
Aspen/Pitkin County Airport
(Signatory Airline)
THIS LEASE AND USE AGREEMENT, made effective as of August 1, 2014(the
"Effective Date") is by and between the BOARD OF COUNTY COMMISSIONERS OF
PITKIN COUNTY, COLORADO(the "County"), a Colorado home-rule County, as
Lessor/Permittor, and UNITED AIRLINES, Inc., (the "Airline") as Lessee/Permittee.
RECITALS
I. The County is the owner, operator and sponsor of the Aspen/Pitkin County Airport
(Sardy Field) ("ASE") located in Pitkin County in the vicinity of Aspen, Colorado (hereinafter
the "Airport"), at which it has made available certain land areas and facilities for and in support
of commercial aeronautical activity including public airfield facilities, an airline terminal and
related airline facilities, and a general aviation terminal and related general aviation and fixed-
base operator facilities; and
2. These certain land areas and facilities are further designated as areas and facilities for
public use(subject to rules and regulations for each classification of user) areas and facilities
for exclusive, preferential or non-exclusive commercial use(subject to written agreements with
the County), and certain areas "reserved"by the County for future designation; and
3. The County has the authority to operate and manage the Airport, to permit and regulate
commercial and certain aeronautical uses and activities at the Airport and to lease,license or
permit the occupancy and use of land areas,buildings, improvements and facilities thereon,
pursuant to, inter alio, C.R.S. Sections 30-11-107, 30-15-401, 30-35-201/202, 41-4-101 et seq.,
as amended, Title X of the Pitkin County Code, as amended, and Section 8.7 of the Pitkin
County Home Rule Charter, as amended; and
4. The Airline is in the business of providing scheduled airline service pursuant to an
operating certificate issued by FAA under FAR Part 121 or Part 135, and has requested
permission to provide such service to and from the Airport and has established its right to
access to and occupancy and use of Airport property as a Signatory Airline by compliance with
certain standards and obligations; and
In support of the provision of such airline service, the parties desire to enter into a Lease and
Use Agreement for the occupancy and use of the Airport by the Airline.
3
AGREEMENT
NOW,THEREFORE, in consideration of the mutual covenants, terms and conditions
contained herein, the County and Airline do mutually undertake and agree as follows:
I. INTENT AND INCORPORATION
LI Intent It is the intent of the patties hereto that this Lease and Use Agreement
(the "Agreement") is to establish,define and control the relationship of the parties in the
occupancy and use of the Airline Terminal and related Airport land areas and facilities in the
provision of airline service from and to the Airport.
1.2 Definitions Words and terms used herein are to be defined and interpreted
according to the following priority:
1.2.1 As set forth in this Agreement or in the annexed Exhibit I.
1.2.2 As defined by the Federal Aviation Administration("FAA"), through its
enabling legislation and Federal Aviation Regulations("FARs"), found at Title 14 of the Code
of Federal Regulations, and as defined by the Transportation Security Administration ("TSA"),
through its enabling legislation and Transportation Security Regulations("TSRs"), found at
Title 49 of the Code of Federal Regulations.
1.2.3 As defined by Colorado real estate statutes, case law and rules and
regulations(including, without limitation,those adopted by the Colorado Real Estate
Commission).
1.2,4 As defined by common usage in the aviation industry, from the point-of-
view of a public airport.
1.3 Exhibits All exhibits attached hereto and/or referred herein are incorporated
herein in their entirety by those references or this reference.
1.3.1 Lettered Exhibits (e.g., "3A") are maps (either sketch or scale) of the
Terminal interior and airside and groundside areas. The County and Airline acknowledge that
such Lettered Exhibits may not be drawn to scale and shall be replaced, upon the mutual
agre..urent of the parties, at such time as scale drawings based on actual survey data become
available.
1.3.2 Numbered Exhibits(e.g. "1")contain text to be incorporated by
reference and are identified as follows:
1. Airport Definitions
2. Preferential Use Areas and Facilities; Standards and Procedures
3. Current Premises
4. Current Rates and Charges
4
5. Environmental Quality improvement Plan("EQIP")
6. Cleaning, Maintenance and Repair of Premises, and Maintenance, Repair
and Replacement of Fixtures and Equipment
7. Minimum Insurance Requirements
2. USE OF AIRPORT FACILITIES
2.1 pemihe of Premises The County hereby grants to Airline, and Airline hereby
accepts, the right to occupy and use certain Airport land areas, facilities, fixtures and equipment
described herein below(the"Premises"), and depicted on Exhibit 3.4 (Terminal Facility Plan),
subject to the terms and conditions of this Agreement, as follows:
2.1.1 Public Airfield Facilities. As defined in Exhibit I.
2.1.2. Airline Terminal As provided in Exhibits I and 3. The Premises,
Fixtures and Equipment described in Exhibit 3 may be modified from time to time during the
term of this Agreement,by an amended Exhibit 3 agreed to by the County and Airline, and
duly executed by authorized representatives of the County and Airline.
2.1.3 Airline Terminal SIDA. As provided in Exhibits 1 and 3. The
Premises, Fixtures and Equipment described in Exhibit 3 may be modified from time to time
during the tow of this Agreement,by an amended Exhibit 3 agreed to by the County and
Airline, and duly executed by authorized representatives of the County and Airline.
2.1.4 Licenses and Easements.
2.1A.1 Airline is granted such non-exclusive licenses for access to and
from the Premises, as designated by the County and as are reasonably necessary, in the
discretion of the County, for the safe and efficient use of the Premises.
2.1.4.2 County reserves such non-exclusive licenses in,on and through
the Premises for use by County or other tenants, as designated by the County and as are
reasonably necessary, in the discretion of the County, for safe and efficient Airpon operation.
Pursuant hereto, the County hereby reserves, for use by all Airlines, easements and licenses to
use the south door behind the ticketing counter and to cross all Operations Areas and Bag
rooms, to transport oversize baggage items that will not safely travel on the ticketinp/departue
baggage conveyor to the conveyor belt between Bag rooms E and F.
2.1.5 Employee Parking Lot. The non-exclusive right to use the employee
parking lot,the location of which may be determined by the county from time-to-time, in
common with other similarly classified entities, and subject to fees, requirements and
regulations as are or may be established by the airport parking operator.
2.2 Acceptance of Premises Airline acknowledges that Airline has inspected (or
has had the opportunity to inspect)the Airport,Terminal and Premises and agrees that they are
fit for Airlines' use and enjoyment, and arc accepted and will be occupied hereunder on an "as
is" basis.
5
2.3 Additional Premises and/or Uses If, during the term of this Agreement,
additional Premises arc made available for occupancy and use by Airline, or additional uses of
the Premises are permitted, Airline and County shall,prior to such occupancy and use,
negotiate in good faith and agree on the additional fees and charges to be paid by Airline for
such occupancy and/or use.
2.4 Additional Airport Fixtures and Equipment If, during the term of this
Agreement, additional fixtures and/or equipment arc made available for use by Airline, Airline
and County shall, prior to such use, negotiate in good faith and agree on the additional fees and
charges to be paid by Airline for the use of such fixtures and/or equipment.
2.5 County's Reserved Rights Notwithstanding anything herein to the contrary,
County reserves the following rights with respect to the Airport and the leased or licensed
occupancy and permitted uses, operations and activities to be conducted thereon by Airline:
2.5.1 Thc right unilaterally to change, during the term of this Agreement, the
rights and obligations of Airline in areas designated as "Preferential Usc Areas" herein by the
standards and process set forth in Exhibit 2.
2.51 The right to unimpeded access over and across the land areas of the
Premises; provided, that County shall not,in the exercise of this reserved right, unreasonably
interfere with or impair Airline's rights hereunder or its use or operation of such areas. County
also reserves the right to enter into the buildings and other improvements of the Premises,
including Exclusive Use areas, at times and in a manner reasonable to the circumstances of
each entry, for the purpose of inspecting the Premises, enforcing any of Countys rights
hereunder, preventing waste or loss, or responding to emergencies.
25.3 For the use and benefit of the public, the right of flight for the passage
of aircraft in the air space above the surface of the Premises, together with the right to cause in
said air space such noise as may be inherent in the operation of aircraft utilizing the Airport.
2.5.4 The right to protect the aerial approaches of the Airport against
obstruction, including the right to prohibit Airline from erecting,or permitting to be erected,
any building or other structure on the Premises,which has been determined by the Federal
Aviation Administration pursuant to 14 C.F.R. Part 77 to constitute a hazard to air navigation.
2.5.5 The right, during the time-of war, national or local emergency or terrorist
attack, to lease the Airport or any part thereof, including the h..,ccises or any part thereof,to the
United States for military purposes, and, in the event of such lease to the United States for
military purposes, the provisions of this Lease shall be suspended insofar as such provisions
may be inconsistent with the provisions of the lease to the United States.
2.5.6 The right to direct all activities of Airline at the Airport in the event of an
emergency.
2.5.7 The right to subordinate the provisions of this Lease to the provisions of
6
any future Agreement between the County and the United States relative to the operation,
maintenance or development of the Airport which agreement is required as a condition
precedent to the expenditure of federal funds for the development, maintenance or operation of
the Airport; if such an agreement is entered into between the County and the United States,the
parties agree to execute an amendment to this Lease/License/Permit so as to remove any
material inconsistencies between this document and any agreement with the United States.
Furthermore, in the event that by reason of any such agreement with the United States as
aforesaid, it becomes necessary to modify,relocate or remove any improvements or other
structures situated on the Premises, Airline agrees to modify, relocate or remove any such
improvements or structures as directed by County and County shall compensate and reimburse
Airline for reasonable damages, costs and expenses(including modification, removal or
relocation costs) suffered or incurred by Airline in consequence thereof.
2.5.8 The right to grant other leases, licenses,permits or rights to occupancy or
use of the Airport so long as such other grants do not unreasonably interfere with or impair
Airline's rights hereunder or its occupancy or use of the Premises, and also reserves the right to
direct changes in the way Airline conducts its Airport operations in the event that County
determines, in the exercise of its reasonable judgment, that one or more aspects of Airline's
method of operation is unreasonably interfering with the lawful and proper occupancy or use by
others of the Airport. Provided, that this reserved right is not intended to allow County to deny
Airline the basic right to use the Premises for any of the uses permitted hereunder or as
permitted under applicable law.
2.5.9 The right to further develop and/or improve the Airport, including the
Premises, as County deems appropriate and/or as is required to satisfy obligations imposed by
FAA or TSA, without interference or hindrance by Airline, and County shall have no liability
hereunder to Airline by reason of any interruption to Airline's operations on the Premises
occasioned by such development and/or improvement of the Airport; provided,that any such
development that temporarily or permanently modifies access to Airline's premises is permitted
as long as reasonable alternative access is provided. Additionally, if Airline shall be unable to
conduct reasonably normal business operations on the Premises by reason of any such
development and/or improvement of the Airport, then rent and other fees payable by Airline
hereunder shall be subject to Equitable Adjustment during the period of such interruption.
23.10 The right tiom time to time to emend Title X(Airport Regulations)of
the Pitkin County Code, in accordance with authorized Code amendment procedures,and
Airline shall be subject thereto, provided that no such amendments shall unreasonably interfere
with or impair Airline's rights hereunder or Airline's use or operation of the Premises as herein
described, or be contrary to Federal or State law.
2.5.11 The right to temporarily close the Airport, or any part of the Airport, in
response to hazardous conditions, or for other purposes as may be approved by the FAA,
without interference or hindrance by Airline, and County shall have no liability hereunder to
Airline by reason of any temporary interruption to Airline's operations on the Premises
occasioned by such temporary closure.
2.6 Utes Permitted
7
2.6.1 Airline shall use and occupy the Premises solely for the purpose of
providing scheduled commercial Airline services, pursuant to Parts 121 or 135 of the Federal
Aviation Regulations(FAR) and as otherwise provided herein, including: the sale of air
transportation, the processing of passengers and their baggage, the handling of baggage, cargo
and mail, the fueling and servicing of aircraft and aircraft support equipment, the maintenance
of aircraft and aircraft support equipment, the storage of aircraft, the storage of supplies and
spare parts necessary to support these Airline services, the office administration required to
support these Airline services, the temporary storage of spent supplies and spare parts for
disposal, and such other activities and functions that are necessarily incidental to a similar
airport-based commercial airline operation.
2.6.2 Any use of the Premises or activity conducted or allowed thereon or
there from by Airline not specifically required or permitted herein shall be and hereby is
prohibited, except as by separate prior written permission from the County.
2.7 Mr Carrier Accommodation
2.7.1 Nothing contained herein, or elsewhere in this Agreement shall
be deemed or construed to grant to Airline the exclusive right to conduct an aeronautical
operation at the Airport or to constitute an exclusive aeronautical activity in violation of 49
U.S,C. Section 40103(e) or 49 U.S.C. Section 40107(ax4).
2.7.2 If after the effective date of this Agreement, one or more air
carriers propose to initiate or expand service at the Airport, including air carriers for which
Airline provides(or within the past three months has provided) ground handling services at the
Airport, and all air carrier counter, office and/or cps/cargo space in the Terminal is then under
lease to Airline and/or other airline tenants, whether on an exclusive basis or otherwise, or the
new operations of the carrier initiating or expanding service cannot otherwise be
accommodated at the Airport,the County may call a conference for the purpose of discussing
and determining methods of making the Terminal accessible to the initiating air carver. In such
event, Airline agrees to attend and negotiate in good faith to accomplish the provision of such
access. If no other accommodations can be made, a possible reduction in space leased to
Airline hereunder, on terms reasonably equitable to all air carriers, including Airline,but taking
into consideration factors including,but not necessarily limited to,reductions in Airline Staff
head count, flight frequency, passenger traffic, and size of aircraft. If agreement is not reached
through such negotiation, then the County shall be entitled to reduce space leased to Airline
hereunder, with appropriate reduction in rentals, on terms reasonably equitable to all air
carriers, including Airline,but taking into consideration factors including, but not necessarily
limited to, reductions in Airline staff head county flight frequency,passenger traffic, and size
of aircraft.
3. TERM
3.1 Initial Term The initial term of this Agreement shall be for the one-year
period commence at 12:01 a.m., local time, August 1, 2014, and expiring at 12:00 a.m., local
time, August I, 2015, unless earlier terminated.
8
3.2 Renewal Terms Unless either party delivers notice to the other, not less than
thirty(30)days prior to the end of the initial term or any renewal term hereof, of such party's
intent not to enter into such renewal term, this Agreement shall automatically be renewed for
four successive terms of one(1) year each, with the final renewal term ending on August I,
2019. If any such notice of intent not to enter into any renewal term is so delivered, then this
Agreement shall automatically terminate at the end of the term in which such notice is
delivered.
3.3 Holding Over If, by the expiration date of the final renewal term, the parties
have not agreed on the terms and conditions of a new or amended Agreement, so long as the
County consents to continued occupancy and use of the Premises by Airline, such occupancy
and use shall be deemed to be a month-to-month tenancy upon the terms and conditions
contained herein, or as may hereafter be amended, at rates, fees and charges set forth in the
then-current County Rate Resolution, or upon such other terms and conditions as the parties
may agree or the County,upon ten(10)days notice, may require.
3.4 Early Termination This Agreement maybe sooner[emanated for cause,
upon the default of either Party, as provided below.
4. FINANCIAL OBLIGATIONS OF AIRLINE
4.1 Rent, Fees and Charges During the Initial Term of this Agreement, Airline
shall pay, fully and timely and without deduction or set-off, those charges set forth in the
attached Exhibit 4 in rent, fees and charges for the described occupancy and use of the
Premises. During the period of any Renewal Team, Airline shall pay such reasonable and not
unjustly discriminatory rent, fees and charges as the County uniformly shall impose upon
Airline and similarly situated Airport users pursuant to the then-current County Rate
Resolution. Airline shall also pay fully, and timely and without deduction or set-off, those
charges incurred by any of its Affiliates(as defined herein).
4.2 Terms and Conditions of Payments
4.2.1 The monthly installments of fees and charges as provided for
herein shall be paid by Airline without deduction, setoff or escrow of any kind whatsoever.
Rent for Exclusive and Preferential Use Areas shall be due and payable on the 20`h of each
calendar month for rent due in the same month, or part thereof during the Term of this
Agreement. Rent for Shared Exclusive Use Areas shall be due and payable by the 20th of the
month in which such rent is billed. Landing fees shall be due and payable by the 20th of the
month for aircraft landed during the preceding month.
4.2.2 All payments shall be made in good U.S. funds; made payable to
the "Aspen/Pitkin County Airport;" and delivered to the office of Airport Administration, 0233
E. Airport Rd., Ste. A, Aspen, Colorado 81611.
4.2.3 All payments shall be considered delinquent if not received by
the last day of the month in which due. All delinquent payments shall each bear default interest
9
on any unpaid and delinquent balance fur any month so delinquent at the rate of two percent
(2%) per month on the unpaid balance, compounded monthly; default interest shall be due and
payable without notice or demand with the next regular payment due.
4.3 Payment of Taxes Airline shall timely and fully pay all business, personal
property taxes and all other taxes lawfully assessed against Airline by reason of its use and
occupancy of the Premises;provided, however, that Airline reserves the right to dispute or
appeal the imposition or amount of any such tax, so long as such action is in good faith and
under the procedures established in the relevant taxing statute or ordinance.
4.4 Financial Security for all Airline Operations Obligations hereunder
including, without limitation, the full and timely payments of all required rent, fees and
charges, shall be as follows:
4.4.1 Application Fee. If Airline has not already done so under a
predecessor agreement with the County, upon execution of this Agreement, Airline shall
deposit with the County the sum of$1,500 as a non-refundable application fee to cover
County's estimated administrative costs.
4.4.2 Surety or Letter of Credit.
4.4.2.1 Airline shall obtain and maintain in force for the Term of this
Agreement (including any renewals thereof), an Irrevocable Letter of Credit (or a cash security
deposit or other security instrument acceptable to the County) (the`Security" hereinafter) from
a surety licensed to do business in Colorado, in such forms and amounts as are acceptable to the
County, in its sole discretion, in the amount estimated by the County to be not less than 90
days' obligations hereunder, to secure performance of all of Airline's obligations hereunder
including, without limitation, its obligation to pay all rent, fees and charges.
4.4.2.2 These requirements for Security may be waived or reduced in
writing by the County, in its sole discretion, for an Airline with a satisfactory payment or
performance history for at least three(3) years. This requirement has been waived for Airline.
Execution of this Agreement will not itself re-impose this obligation for such an Airline,
provided, however, that if the County 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, and as a material element of this Agreement, require such a Security to be
delivered promptly as part of any cure of such Notice.
4.4.3 Nature of Security. It is expressly agreed that instruments or
amounts received under Paragraph 4.4.2 above (the"Security") are not an advance payment of
rental or a measure of County's damages in case of default by Airline. County shall have the
right to commingle any cash amounts received hereunder with its other funds.
4.4.4 County Use of Required Security.
4.4.4.1 If any of the rent, fees and charges hereunder shall be overdue
and unpaid, then County may, at its option, and simultaneously upon Notice to Airline,
10
appropriate and apply any portion of the Security to the payment of any such overdue amount
In the event of the failure of Airline to keep and perform any of the terms, covenants and
conditions of this Agreement, then County may, at its option and upon Notice to Airline(and
its surety, if applicable), appropriate and apply the Security or so much thereof as may be
necessary, to compensate County for advances,expenses, loss or damage sustained or suffered
by County, due to such breach on the part of Airline,
4.4.4.2 Should the Security or any portion thereof be appropriated and
applied by County for the payment of overdue rental or other sums due and payable by Airline
hereunder, or for a breach on the part of Airline, the Airline shall, within five days atter the
written demand of County, forthwith remit to County a reinstatement of the Surety or fetter of
Credit the Security to the original sum deposited or required.
4.4.5 Lien on FFEI. In the event of any delinquent rent,fees and charges
hereunder, and to the extent thereof, including late charges and interest, the County shall be
entitled to a lien for such amounts on Airline's trade Fixtures, Furniture, Equipment and
Inventory in use at or located on the Airport.
5. OTHER OBLIGATIONS OF AIRLINE
5.1 Operations For the Term of this Agreement, Airline shall conduct a scheduled,
certificated, commercial Airline operation in the public interest,pursuant to FAR Part 121 or
135 and other applicable FAA and U.S. Department of Transportation rules, regulations and
certificates. Airline is afforded favorable rates as a "Signatory Airline" hereunder, and shall
continue to maintain status as a"Signatory Airline"so long as it provides scheduled airline
service of at least one flight daily on a year-round basis or on a multi-seasonal basis. In
addition to requirements imposed on Airline by FAA rules and regulations, Airline elvers to
cooperate with the County and other users of the Airport to meet at the request of the County
and discuss in good faith Airport operational issues(including, especially, those involving
aircraft noise, Airport and airspace access and aircraft ground traffic congestion)and to offer
and/or consider solutions or mitigation techniques.
5.2 Physical Security for Premises
5.2.1 Airline agrees that it will faithfully perform its obligations under all
federal laws, regulations, or mandatory directives of the Transportation Security Administration
or any other agency having jurisdiction, relating to anti-hijacking and terrorism,and to the
security of passengers,baggage and aircraft(collectively"Federal Security Regulations").
Airline acknowledges that federal security regulations are rapidly changing, and are likely to
impose burdens upon Airline that arc not effective on the date of this Agreement. Airline
nonetheless agrees to fully and promptly comply with all such amended or newly effective
Federal Security Requirements, and to immediately notify the County in writing if Airline's
compliance with any Federal Security Requirement will be delayed beyond applicable effective
dates.
5.2.2 In the event that an FAA or TSA enforcement action is commenced
against the County concerning the acts or omissions of Airline, including its officers,
11
employees, representatives, contractors and invitees, Airline will be notified of such
proceedings and provided an opportunity to participate therein. In the event that the County is
assessed a fine or penalty by the FAA or TSA for breach of security regulations as a result of
the acts or omissions of Airline or any of its assigns, officers, agents, representatives,
contractors or invitees, Airline shall promptly reimburse County the full amount of any such
fine or penalty.
53 Environmental Quality Improvement Plan (EOIPI
5.3.1 It is the policy of the County that all Airport tenants shall strictly comply
with all applicable environmental statutes,rules and regulations and that preferences should be
given, in all County procurement actions, administration of agreements and determinations on
renewals, to tenants that consistently demonstrate awareness of environmental issues that arise
during the term of any Agreement and a proactive stance in dealing with such issues.
5.3.2 Promptly after the execution of this Agreement, Airline agrees to
produce, for review and approval by the County, which approval will not be unnecessarily
withheld, a proposed EQ1P for its occupancy of the Premises and operations therefrom and
then, upon approval by the County, to implement the same, which EQU' will include, without
limitation,planning, management and operational policies and practices involving Airline itself
and its employees, and contractors, to reduce or eliminate environmental degradation in the
areas of air pollution, water pollution, noise pollution, solid waste management and fuel and
energy conservation.The preliminary EQIP for this Agreement is set forth in Exhibit 5.
5.4 Reports Airline shall provide to County the following reports on or before the
20th day of each and every month during the Term hereof(and the first month after the
expiration hereof) by delivery to the office of the Director of Aviation on forms provided or
approved by the Director of Aviation:
5.4.1 Aircraft landing reports listing, by date, the number of scheduled
landings, the actual number and type of aircraft landed by the Airline, showing the total of each
such aircraft for the preceding month.
5.4.2 Enplaned passenger reports showing the monthly total of revenue and
non-revenue passengers boarding and de-boarding the Airline's aircraft at the Airport for the
preceding month.
5.4.3 All statistics relating to maximum allowable gross landing weights for
the preceding month as necessary for the calculation of landing fees.
5.4.4 Upon the request of the County, true and correct copies of any reports
submitted by Airline to federal or state agencies or officials concerning Airline's operations at
the Airport.
5.4.5 To the maximum extent required by applicable law or regulation, PFC
reports, including the total PFC revenue collected, the total amount of PFC revenue refunded to
passengers and the amount of collected revenue withheld by the collecting carrier for
12
reimbursement of expenses in accordance with 14 C.F.R. ' 158.53.
5.5 Cleaning, Maintenance and Repair and Replacement Airline, at its expense
and at all times hereunder, shall clean and/or keep and maintain its Exclusive Use and
Preferential Use Areas and all fixtures and equipment thereon in good order, condition, and
repair, all as set forth in Exhibit 6. Airline shall not cause or permit,by act or omission, any
unkempt or disorderly condition upon or damage to other areas of the Airport Terminal interior,
exterior, AOA or groundside.
5.6 Utilities
5.6.1 Airline shall, at its sole expense and in its own name, contract for the
provision of all heat,water, gas, electricity, telephone service,trash removal and all other
utilities not provided in common by the County and used by Airline on or about its Premises.
Airline shall not permit any lien for unpaid utility use or services to be filed or maintained
against the Premises.
5.6.2 Airline shall not operate or install any equipment that will exceed or
overload the capacity of any existing utility facility; if any equipment so operated or installed
by Airline shall require additional utility facilities,the same shall be installed and maintained at
Airline's expense in accordance with plans and specifications which have received prior written
approval by County.
5.6.3 If,during the term of this Agreement,the County is required to increase
its water, sewer, gas or electric service and such increase requires a capital contribution from
the County, Lessee, if it consumes the increased utility, agrees to pay a pro-rated,reasonably-
amortized portion of said increase, which amount will be set by agreement or binding
arbitration.
5.7 Snow Removal Airline shall attend, by authorized representatives, any snow
removal meeting called and conducted by the Airport prior to,during or after the winter season.
Airline shall move or relocate aircraft and vehicles, at the direction of the County,to assist
County's snow removal obligations set forth below. Airline shall further, at Airline expense,be
responsible for the removal of snow from other portions of the Premises that cannot readily be
serviced by the County's snowplowing equipment in accordance with Section 7.3.
5.8 Trademarks, Trade Names Airline represents that it is (and will be for the
entire Term hereof)the owner of or fully authorized to use any and all trademarks, trade names,
logos,names, slogans, copyrighted material,patents,services,processes,machines,or articles
to be used by its in its operations under or in any way connected with this Agreement.
5.9 Airline Performance Standards
5.9.1 County acknowledges that its legal authority to regulate certain elements
in the provision of Airline service to the Airport(including fares, routes,schedules, and on-
time performance, and policies and procedures concerning reservations, flight
delays/cancellations, baggage handling,customer service, and employee/supervisory staffing
13
levels and training) has been preempted by federal statutes and regulations. However, Airline
acknowledges that County, as owner, operator and FAA sponsor of the Airport, also reserves
all proprietary rights and powers to the extent not inconsistent with applicable law.
5.9,2 Therefore, as an element of consideration of this Agreement, Airline
agrees to meet with the County(periodically,as mutually agreed, and/or promptly after a
formal request therefrom by County) and to substantively discuss all elements of services
provided by this Airline at, to or from the Airport; and to promptly provide, at the request of
County, copies of all reports and records concerning such services that are filed with the U.S.
Department of Transportation pursuant to its rules and regulations.
5,9.3 This agreement to discuss its services shall create no obligation in
Airline to alter its services; to disclose to County or any third party any trade secrets or other
proprietary or confidential information; or to engage in any discussion with County or any third
party regarding matters that cannot lawfully be discussed or he the subject of agreements.
5.10 Sians Airline shall not place any signs upon the Premises, except of such size,
type, design and structure as shall be approved by County,provided, that County's approval
shall not be unreasonably withheld. Any sign permitted by County shall at all times comply
with all applicable ordinances, rules and regulations.
5.11 Installations/Additions/Alteratlons/Improvements Airline shall not undertake or
permit any installations, additions, alterations or improvements to the Premises without the
prior, express written permission from the County, which permission, if given, shall include the
following elements:
5.11.1 Identification of the scope and responsibility for any land-use or building
permits required for the proposed installations, additions, alterations, improvements;
5.11.2 Approval by County of proposed drawings and specifications including,
without limitation, requirements for professional certification stamps for any
architecturalengineering portions of the installations/additions/alterations/ improvements;
5.1 1.3 Reasonable approval by County of proposed contractors;
5.11.4 A plan, and responsibility for administration and costs of such plan,for
changes in operational and security procedures during any construction period;
5.11.5 Provision for any adjustment of terms and conditions of this Agreement;
5.11.6 Provision for the amortization and fume ownership of the
installations/additions/alterations/improvements; and
5.11.7 Provision for return of the Premises to onginal condition at the end of
the Term hereof, including any adjustments to the Security hereunder, ordinary wear and tear
excepted.
19
5.12 Waste Airline shall not commit or allow any waste upon or in connection with
the Premises.
5.13 Llens/Claims In connection with its occupancy and use of the Premises, Airline
shall not cause or permit any liens or claims against Airport property to be filed, recorded,
maintained, foreclosed upon or otherwise enforced and does hereby expressly indemnify the
County against any liabilities, costs or fees, including reasonable attorneys fees,relating
thereto.
5.14 County Pro-Competition Policy Airline will not engage or agree to engage in
any unlawful restraint of trade or unlawful anti-competitive practices.
5.15 Assignment and Opersdons for Other Airlines
5.15.1 Airline shall not assign or in any manner grant, convey, transfer, or
encumber this Agreement, any estate or interest therein, or any right or obligation of Airline
hereunder, or sublease the Premises or any part thereof, without the prior written consent of
County, which consent shall not be unreasonably withheld. Provided that the foregoing shall
not prevent the assignment of the agreement to any corporation with which Airline may merge
or consolidate, or sale substantially all of Airline's assets.
5.15.2 In the event that Airline is undergoing or proposing to undergo a
substantial change in operations, ownership or management not covered above, Airline shall
file with County any data that was filed with the U.S. Department of Transportation, pursuant
to 14 CFR 204.1, 204.2 and 204.5, as the same maybe amended, promptly after a request by
County therefor, such requests by County to be made upon reasonable grounds(e.g., late
payments, agreement renewals).
5.15.3 In the event that, at any time during the Initial Term or Renewal Term of
this Agreement,Airline intends to permit an air carrier having a separate legal identity from
Airline to provide scheduled passenger service from the premises leased hereunder,the County,
Airline and the air carrier intending to provide such service first shall execute an agreement
addressing, inter alio, satisfaction of the obligations hereunder.
6. INDEMNITY AND INSURANCE
6.1 Airline Indemnity
6.1.1 Airline hereby agrees to, and further agrees to cause the Airline Parties
to release, discharge, indemnify and hold harmless the County from and against any and all
liability for any and all losses resulting from any and all claims arising out of or in connection
with any act, error or omission by Airline or the Airline Parties, including, without limitation,
claims or losses resulting from, arising out of, or in connection with any release, spill,
discharge, leak,disturbance, or disposal of Hazardous Materials in, at, under, or migrating from
the premises due to Airline's use or occupation of or activities on the Premises or due to error
or omission by Airline's Affiliate, Airline or the Airline Parties; provided,however,that such
indemnity or release shall not be construed as an indemnity or release fur losses arising from
15
the negligence or willfully wrongful acts of County, or any pre-existing condition which
predates Airline's use or occupation of Premises.
6.1.2 For purposes of this section"Airline" shall mean the LesseelPcrmittee
hereunder and "Airline Parties" shall mean any parent companies, subsidiaries,joint ventures,
shareholders, directors,officers, employees,agents, representatives and contractors; and
"County" shall mean the Lessor/Permittor hereunder and any officials, employees, agents,
representatives and contractors.
6.1.3 For purposes of this section: "claim" shall mean any legal claim, notice
of claim, demand, lien, lawsuit or other legal proceeding to cause or establish legal or financial
liability; and "loss" shall mean any 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, in connection with any claim for economic
loss or personal injury, including without limitation property damage, bodily injury or death or
injunctive relieve.
6.1.4 Further, Airline further shall investigate,process, respond to, adjust,
provide defense for and defend, pay or settle all claims, demands, or lawsuits related to its acts,
errors and omissions hereunder at its sole expense and shall bear all other costs and expenses,
related thereto, even if the claim, demand or lawsuit is groundless, false or fraudulent..
6.2 Airline Insurance. Airline shall secure and maintain for the entire Term of this
Agreement such insurance policies, from companies licensed to sell such policies in the State
of Colorado or as approved by the County, as will protect itself, the County (with the County
named as additional insured), and others as specified, from claims for bodily injuries, death,
personal injury or property damage, which may arise out of or result from Airline acts, errors or
omissions. The required Airline insurance coverages, at or above the limits indicated and
including such endorsements as are indicated by an"X", are listed on Exhibit 7.
6.3 County Insurance. County shall procure fire,extended coverage and boiler
insurance covering the existing buildings, improvements and facilities of the Premises leased
hereunder for the full replacement value thereof y. County also shall procure general liability
and motor vehicle liability insurance policies covering its operations on the Airport. County
shall maintain such insurance(or self-insurance, if permitted by law) during the Term of this
Agreement, and shall furnish Airline, upon request, a copy of a Certificate evidencing such
coverage.
7. OBLIGATIONS OF COUNTY
7.1 Operation of Airport For the term of this Agreement, the County shall plan,
operate, finance and manage the Airport(including the Airline Terminal and the Public Airfield
Facilities) in a prudent manner, consistent with the County's adopted plans and policies and
customary professional Airport management practices, and shall, unless released in a writing
signed by the Airline, undertake the following obligations:
7,2. Utilities County shall, at its sole expense and in its own name,contract for the
16
provision of all heat,water,gas,electricity, telephone service,trash removal and all other
utilities provided in common or used in the Common Use Areas.
7.3 Snow Removal County shall annually call and conduct a snow removal
meeting for all Airport tenants prior to the winter season. County shall, at County's own
expense,but subject and secondary to County's obligation to maintain clear aircraft runways
and taxiways and motor vehicle access roads on the Airport,remove the snow from those areas
of the Premises which are open to public use and which are utilized for the passage,parking
and storage of aircraft and the passage and parking of motor vehicles in the same manner and
extent as County performs snow removal on portions of the Airport in general, provided,that
County shall not be required to move or relocate parked aircraft and vehicles to accomplish
such snow removal. Further, County shall keep the public-access sidewalks and other
pedestrian access ways on, to or from the Premises reasonably passable at all times, as weather
conditions will permit.
7.4 Maintenance,Cleaning and Repair
7.4.1 Subject to Airline's primary obligation with respect to its Exclusive,
Preferential and Shared Exclusive Use Premises and Airline's indemnities herein,the County, at
its expense and at all times hereunder, shall clean,keep and maintain, in good order and
condition and repair, the structural and service elements of the Airline Terminal and the
common use and non-exclusive use areas of the Airport, all as set out in Exhibit 6.
7.4.2 All requests by Airline for performance by County hereunder, or
notification to County of any dangerous or hazardous conditions to the Premises or to other
Airline Terminal facilities or areas, shall be in writing and shall be made immediately after
Airline has knowledge or has received notice thereof.
7.5 Ouiet Eniovment County covenants that upon Airline's timely and full
payment of the rent and other fees and charges hereunder and Airline's compliance with and
performance of all of the terms, conditions and obligations of Airline hereunder,Airline may
peacefully and quietly have,hold and enjoy the Premises for the Term of this Agreement.
8. OTHER AGREEMENTS
8.1 Coordination with Others County and Airline acknowledge that each has (or
may undertake)rights and obligations arising from vanous third-party agreements with other
Airport users. County and Airline agree to cooperate with each other to effectuate these third-
party agreements, so long as such agreements are not illegal, impossible or do not unreasonably
interfere with or impair either Airport operations or Airline's use or occupancy of the Premises.
If either party shall make a request for co-operation of the other party under this provision,the
requesting party shall, simultaneously with the request,provide copies of any agreements that
are the subject of this request to cooperate.
8.2 Subiections.Exceptions and Reservations This Agreement shall be
subordinate to the provisions of any existing or future agreements between the County and the
United States of America, relative to the operation and maintenance of the Aspen/Pitkin County
17
Airport,the terms and execution of which have been or may be required as a condition
precedent to the expenditure or reimbursement to the County of Federal funds for the
development of the airport("FAA Grant Assurances"). In the event that this Agreement, either
on its own terms or by any other reason,violates such FAA Grant Assurances, the County has
the right to amend, alter or otherwise modify the terms of this Agreement in order to resolve
such violation and the Airline shall not withhold its consent to such amendments, alterations of
modifications
8.3 Airport Master Planning and Land Use Planning Airline hereby
acknowledges that the County has adopted, and the Airline is subject to the following Airport
Land Use and Transportation Planning documents and processes: The current Airport Master
Plan by the Board of County Commissioners;the current FAA-approved Airport Layout Plan
("ALP"); any current Land Use Identification Plan; any current Land-Use Master Plan, adopted
pursuant to the Pitkin County Land-Use Code(Public Zone District, Master Plan Option);
Pitkin County planning documents, including the Aspen Area Comprehensive Plan and Aspen-
2 Snowmass Transportation Plan, and any airport-specific environmental impact analyses;and
any airport-specific land-use approvals,which contain certain executory conditions that
constitute development regulations for and may affect the Premises; as any of the foregoing
now exist or may hereafter be adopted or amended.
8.3.1 The documents and processes provide for potential changes to the Airport and
the Premises during the term hereof. Airline agrees to cooperate in the implementation of
such plans,documents and processes, and will make no claim against the County with respect
to such implementation for other than any unforeseeable and/or unreasonable interference with
Airline business activities caused by such implementation.
8.3.2 Airline further acknowledges that the County will, from time to time,
amend and update such plans, documents and processes, and agrees to cooperate with the
County and/or its consultants, in providing such input and/or materials as may reasonably be
necessary to complete any amendment or update project.
8.5 Compliance with Applicable Laws and Regulations In connection with its
occupancy and use of the Premises and the conduct of operations thereon and therefrom, the
Airline shall:
8.5.1 Fully comply with all applicable laws, rules and regulations, as such now
exist or hereafter maybe amended or promulgated,of the United States (including, the State of
Colorado, and the County of Pitkin, and all departments and agencies thereof. The present
adopted county Codes, plans,rules and regulations,are the Pitkin County Code, including Title
II (Land use Code), and Title X(Airport Regulations); Airport Security, Operations and
Emergency Plans; and Airport Snow and Ice Control Plan.
8.5.2 Not discriminate against any person or class of persons by reason of
race, color, creed, religion or national origin in providing any services or in the use of any
facilities provided for the public in any manner prohibited by Part 21 of the Regulations of the
Office of the Secretary of Transportation, and shall comply with the letter and spirit of the
Colorado Anti-Discrimination Act of 1957, as amended, and any other laws and regulations
18
respecting discrimination in unfair employment practices,and shall comply with such
enforcement procedures as any governmental authority might demand that the County take for
the purpose of complying with any such laws and regulations.
8.5.3 Fully comply, in the general operation of its business, with all applicable
standards and compliance dates issued under or stated in the Americans with Disabilities Act
("ADA")and the Air Carrier Access Act("ACAA"), and implementing regulations. The
Airline shall be responsible for structural compliance standards of improvements made by
Airline as defined under ADA Title III within its exclusive use areas only.
9. DEFAULT/TERMINATION/SURRENDER
9.1 Events of Default The following events are to be considered Incidents of
Default hereunder:
9.1.1 Failure to make full and timely payment of rent, fees or charges due and
payable hereunder; or
9.1.2 The creation, maintenance, failure to correct or sufferance of a dangerous
or hazardous condition on or emanating from the Premises; or
9.1.3 Failure to provide and maintain current all required types and amounts of
insurance and proof thereof; or
9.1.4 Making or becoming subject to a voluntary or involuntary petition or
receivership or bankruptcy, declaration of insolvency or assignment the benefit of creditors; or
9.1.5 Abandonment of the Premises or failure to operate at or from the
Premises as described hereof; or
9.1.6 Failure to comply with any other term, covenant or obligation under this
Agreement.
9.2 Notice of Default The aggrieved party shall declare a default hereunder by
delivering a written Notice of Default to the other party, which Notice shall specify the
Incident(s)of Default asserted and a cure therefor acceptable to the aggrieved party, including
the accrued and projected costs to the aggrieved party as a result of the default.
9.3 Right to Cure A defaulting party shall have the right to cure an Incident of
Default, unless such party has abandoned the Premises, in which case it shall be deemed to
have waived any right to cure. As a condition precedent to this right to cure, the defaulting
party must provide Notice,promptly after the effective date of the Notice of Default,to the
aggrieved party of the defaulting party's intention to cure and whether it agrees with the
proposed cure or has a counterproposal. The time periods for cure, after the effective date of
any Notice of Default, shall be:
9.3.1 Within three(3)business days if the default is maintenance of a
19
hazardous condition or failure to maintain and/or prove required insurance coverages; or
9.3.2 Within ten(10) calendar days if the default is failure to make full and
timely payments hereunder; or
9.3.3 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 a cure acceptable to the aggrieved party is promptly undertaken and diligently pursued and
the cure required cannot reasonably be completed within the foregoing time periods, the
aggrieved party may, upon timely request and proof of such mitigating circumstances by the
defaulting party,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.
9.4 Notice or Terminadoa/Rleht to Re-Enter If such noticed default(s) shall
remain uncured after the cure period specified, the aggrieved party may thereafter terminate
this Agreement by delivery of written Notice of Termination to the defaulting party, which
Notice shall be effective on the date delivered to the defaulting party. Upon tom,urination of this
Agreement, County may re-enter the Premises and remove all persons and property therefrom,
as provided by law.
9.5 Remedy not Exclusive The parties shall have such other rights and remedies
as may be provided for by law or in equity, including damages.
9.6 Surrender
9.6.1 Upon the expiration or termination of the initial term or any renewal
term hereof,Airline agrees to peaceably surrender, deliver to County and leave the Premises;
hereby waives any rights to statutory process concerning notice and eviction, agrees to remove
all trade fixtures, personal property, equipment or improvements (removable by prior written
agreement with the County) from the Premises, subject to the County's lien for delinquent fees
and charges and Airline's obligation to repair the Premises; and agrees to leave the Premises in
an undamaged, trash-free, broom-clean condition.
9.6.2 Any properly of Airline or of anyone claiming wider,by, or through
Airline, which is left on the Airport more than fifteen (15)days after expiration of the Term or
Termination of possessory rights shall. after notice of removal thereof by County,be
conclusively deemed abandoned, and County may keep, use,remove, store, sell, destroy,
discard, or otherwise deal with it in County's absolute discretion without liability of any sort to
Airline or anyone claiming under, by or through Airline.
10. GENERAL PROVISIONS
ILI Notices Except as expressly provided above, all Notices required or
authorized to be given hereunder shall be in writing and shall be served upon the party
addressed thereto either by certified mail, return receipt requested, to such party at the address
appearing below (or at such other address as either party gives Notice to the other party in
20
writing),or by personal service as provided for service of process in Rule 4, Colorado Rules of
Civil Procedure, as amended. Any such Notice shall be deemed to have been
delivered/received either: two (2)business days after the same has been properly deposited in
the United States mail,with postage thereon fully prepaid, as aforesaid; or, on the date of
personal service.
10.2 Entire Agreement This Agreement contains the entire agreement of the parties
and there have been no promises,representations or agreements,either express or implied,
except as expressly set forth herein. Any and all prior agreements or understandings between
the parties are expressly agreed to have merged herein.
10.3 Severability The provisions of this Agreement shall be severable and the
invalidity of any provision hereof shall not affect the validity of any other provision.
10.4 Modification This Agreement may be modified, amended or supplemented
only by an instrument in writing signed by the parties hereto and approved by the Board of
County Commissioners at a duly-noticed public meeting. While the County staff has the power
to make operational and administrative decisions respecting the Airport, the County will not be
bound to any modification,amendment or supplement to this Agreement not approved and
documented as provided herein.
10.5 Non-Waiver The failure of either party hereto to exercise any right or remedy
hereunder shall not be deemed a waiver thereof or a waiver of the right to exercise the same at
any future time,or the waiver of any other right or remedy hereunder. No waiver by either
party of any right or remedy hereunder shall be effective unless in writing signed by the party.
10.6 No Presumption This Agreement has been negotiated and agreed upon through
the mutual efforts of the parties hereto and these parties have been represented by legal counsel
(or have had the opportunity to obtain such representation); therefore, the parties agree that no
legal presumption arising from the identity of the party drafting and producing this document is
to be asserted or applied to the interpretation of any of the terms of this document, or any
exhibit attached hereto.
10.7 Relationship of Parties The parties hereto acknowledge and agree that the
legal relationship between them is that of Lessor/Permittor and Lessee/Permittee and that this
relationship and the resultant occupancy and use of the Airport is not to be asserted to be or
construed to constitute any other type of legal relationship or entity,including a joint venture or
a legal partnership.
10.8 Attorney Fees If either party hereto shall incur legal fees, expenses or costs
and/or shall commence legal action or institute legal proceedings to interpret,protect or enforce
any of the rights,remedies or responsibilities set forth hereunder,the party prevailing in such
legal action or proceedings shall be entitled to recover all of its expenses, costs and fees in
connection therewith,including its reasonable attorneys fees.
10.9 Governing Law and Venue This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Colorado. Any action to enforce or
21
interpret this Agreement shall be brought in the United States District Court for the District of
Colorado or in the Pitkin County District Court.
10.10 Effect of Lease This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective lawfully-appointed successors and assigns.
10.11 Headings The section headings contained herein are for convenience in
reference and are not intended to define or limit the scope of this Agreement
10.12 Time of Essence Time is of the essence in this Agreement.
10.13 Limitation of Benefit This Agreement does not create in or bestow upon any
other person or entity not a party hereto any rights or benefits. This Agreement does not in any
way represent,nor should it be deemed to imply, any standard of conduct to which the parties
expect to conform their operations in relation to any person or entity not a party.
10.14 Capacity to Execute The County and Airline each warrant and represent to one
another that this Agreement constitutes the legal,valid and binding obligation of that party.
10.15 Most Favored Nations Clause The County agrees that it will not enter into any
future use and lease agreement or amend any existing use and lease agreement with any other
air carrier making substantially similar use of the Airport,operating substantially similar
aircraft, and utilizing substantially similar facilities to that of the Airline which contain more
favorable terms than this Agreement, or grant rights or privileges which are not afforded to the
Airline,unless the County agrees to make substantially the same terms,rights and privileges
available to Airline.
10.16 Ground Handling For the avoidance of doubt and notwithstanding anything to
the contrary contained in this agreement or any other agreement into which Lessor may enter,
Lessor agrees that(a)nothing contained herein shall affect Lessee's obtaining or contracting to
obtain ground handling services from another entity, including from Lessee's Affiliates or
another Signatory Airline, and(b)Lessor shall not assess Lessee or any other party a fee on
ground handling for ground handling services or similar services provided to Lessee or any
other Signatory Airline. Airline agrees to indemnify the County for any and all claims arising
out of such ground handling and the entity providing ground handling services possesses
adequate insurance.
10.17 Any approval required by either party to this agreement shall not be
unreasonably withheld or delayed.
22
IN WITNESS WHEREOF,the parties have executed this License and Permit on the
dates indicated in Aspen,Pitkin County,Colorado.
COUNTY: AIRLINE:
THE BOARD OF COUNTY COMMISSIONERS UNITED AIRLINES,INC.
OF Pet 1. v SOLORADO
:y. —:�� By: 0,24111s/)..0
,24111/) ' Date 5/23'11
John , Bey „vT'ri
DI -• .4 of Aviation Managing Director,Airport Affairs
Aspen/Plt1dn County Airport Corporate Real Estate
AkY„ t4- navy ATTEST:
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(_J(G , 11; s1 1;ecretary:Date
t" t' l app•e r/ '(,/kir J fer L.Kraft.
o.:4 of COM-r (nntn16siners Vice President,
Deputy General Counsel&
Corporate Secretary
MAILINO ADDRESS(for Notices):
Director of Aviation United Airlines,Inc.
0233 E.Airport Road,Suite A 233 S Wacker Dr.,HDQOU, l lth floor
Aspen,Colorado 81611 Chicago,IL 60606
Attn:Vice President,Corporate Real Estate
With copies to:
Pitkin County Manager
530 E.Main St.
Aspen,CO 81611
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EXHIBIT I
Aspen/Pitkin County Airport
Airline Lease and Use Agreements
DEFINITIONS FOR USE IN AIRPORT LEASES,LICENSES AND PERMITS:
INTRODUCTION: So far as the County is able to determine, there is no single set of
standardized aviation terms available that define, for all relevant purposes, the various classes
of commercial aeronautical operators, the various types of commercial aeronautical services
and the various classification of land areas and building interiors that arc used in providing air
service. For example, various distinctions are made between the size of aircraft, frequency and
regularity of flights and federal certificates required(e.g., scheduled Airline, commuter Airline,
air taxi, air charter). Some distinctions are even within the control of the operators (e.g.,
whether the operator chooses to qualify as a Part 121 or as a Part 135).
For this reason, the definitions herein relate to the Aspen/Pttkin County Airport and are
intended to control only the legal relationships established in written agreements between the
County, (the Airport owner, operator and FAA sponsor) and the commercial aeronautical
operators at the Airport.
To the extent that these definitions conflict with other definitions or distinctions, these
definitions shall control these legal relationships. To the extent that other statc or federal
definitions or distinctions are nol in conflict with these definitions, they may be used to
supplement these definitions.
1. Aeronautical Activity or Aeronautical Operation or Aeronautical Service. Any
activity, operation or service that involves, make possible,or is required for the flight of
aircraft, or that contributes to or is required for the safety thereof.
Activities, operations or services commonly conducted on airports that are deemed to be
Aeronautical Activities within this definition include, without limitation the following: the
provision of scheduled Airline service to the public; aircraft charter operations; aircraft rental;
aircraft management; pilot training; aerial sightseeing; aerial photography, aerial spraying;
aenal surveying; aircraft sales and service; sale of aviation fuel and oil whether or not
conducted in conjunction with other included activities; repair and maintenance of aircraft; sale
of aircraft parts; and any other activities, services or o1.<tations which, in the sole judgment of
Pitkin County, can, because of their direct relationship to the operation of aircraft, appropriately
be regarded as an aeronautical activity, operation or service.
Aeronautical activities are further defined as either:
a. Commercial Aeronautical Activities, which are aeronautical activities offered
or provided by a person or business entity to the public or to other aircraft owners,
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pilots or operators with an intent to obtain compensation for the aeronautical activity
offered or provided; or
b. Non-Commercial Aeronautical Activities, which are aeronautical activities
conducted by aircraft owners,pilots or operators by and for themselves without the
intent to obtain compensation for the aeronautical activity or operation conducted or
service provided; Non-Commercial Aeronautical Activities may be part of or in support
of a commercial venture, so long as the nature of the commerce is not a commercial
aeronautical activity.
2. Airport Agreement. A written document creating mutual rights and obligations
involving occupancy and use of the Airport that is signed by all parties, and approved by the
County(through its Board of County Commissioners)pursuant to state law and the Pitkin
County Home Rule Charter at a duly-constituted public meeting.
Typically, Airport Agreements come in one of three forms:
a. A Lease is the Airport Agreement for the occupancy of Airport facilities of the
highest legal gravity. Typically, a lease is offered by the County to tenants that have
unique operational practices and requirements and is often characterized by long-term
(in excess of one year) exclusive use and/or involves financing of major capital
improvements.
b. A License is an Airport Agreement for the occupancy and use of Airport
facilities of lesser legal gravity than a lease. Typically,a license is the relationship
offered by the County for the occupancy of Airport facilities characterized by a short-
term(of up to one year)exclusive, shared or non-exclusive use.
c. An Operating Permit is an Airport Agreement for the use of Airport facilities
and is often issued in connection with a lease or a license.
3. Airport. The Aspen/Pitkin County Airport(Sardy Field),Aspen,CO(ASE).
4. Airport Area Occupancy Designations.
a. Public Airfield Area. A term referring to the Airport Runway(15/33); Public
Airfield Facilities Taxiways and Taxilanes; and Public Airfield Facilities Ramp areas
(other than the ramp or apron areas to or for which the County has previously,or by this
Agreement, or may from time to time lease, assign or grant Exclusive or Preferential
Use); and any extensions additions to the above and any other space or facilities
produced by the County at the Airport and expressly so identified for public and
common use by aircraft operators in connection with the landing and taking off of
aircraft,or in connection with operations hereinafter authorized to be performed by
aircraft operators upon the aforesaid Runways,Taxiways, Taxilanes and Ramp areas;
but only as and to the extent that the same facilities are funded by grants from the
Federal Aviation Administration (FAA) and are from time to time expressly designated
by the County at the Airport for public and common use by the aircraft operators.
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b. Airline Area or Airline End.A term referring to the southern half of the
Airport(approximately);that part of the Airport occupied and used primarily by
facilities for and operations of Scheduled Airlines (Parts 121 and 135)holding
Certificates of Public Necessity;the Airline Area is separated from the General
Aviation Area or General Aviation End of the Airport by a double yellow line at
approximately A-5 on the Taxiway.
c. General Aviation Area, GA Area or GA End.A term referring to the northern
half of the Airport(approximately); that part of the Airport occupied and used primarily
by facilities for and operations of general aviation, especially FBOs and S-FBOs and
their customers;the General Aviation Area is separated from the Airline Area of the
Airport by a double yellow line at approximately A-5 on the Taxiway.
5. Airport Area Use Designations. All land areas,buildings, facilities and improvements
on the Airport are designated as one of the following types of areas,with rights and obligations
as defined herein:
a. Common Areas. Those areas designated for use in common by certain
classifications of Airport lessees, licensees and permittees; for example, the non-secure
waiting and circulation areas in the Airline Terminal.
b. Exclusive Areas. Those areas designed for exclusive use, to the exclusion of
others,by lessees or licensees. Exclusive areas maybe shared by Airport LLPs(Shared
Exclusive Areas),pursuant to written agreement between the parties subject to the prior
approval of the County.
If so provided in its Agreement with the County, an Airport LLP may occupy and/or use
land areas,buildings, improvements and facilities solely and to the exclusion of others
for the term of such Agreement, as long as the Airport LLP is not in default thereunder,
subject only to the terms and conditions set forth therein and the provisions of
controlling law.
The grant by an Airport of an exclusive right to occupy or use real estate,which is
permitted by federal regulation under certain conditions,is distinguished from the grant
by an Airport of an exclusive right to conduct an aeronautical activity, which is
forbidden by federal regulation.
Exclusive Area also may mean that part of an Airport for which an Airline has agreed
in writing with the Airport to exercise exclusive security responsibility under an airport
security program.
c. Expansion Areas. Those areas designated by the County for future use for
expansion of aeronautical activities. The County reserves the right, in its sole discretion
(consistent with good Airport operational and management practices and the Airport
Master Plan) and without advance notice or compensation to any party, to limit or
regulate use or to lease as an exclusive area to third parties.
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d. Government Areas. Those areas designated for use by the County or the FAA
for its operations; for example,the County Airport Operations Center(AOC),the FAA
Air Traffic Control Tower, and the runway light system.
e. Preferential Areas. Those areas designated by the County for use by Airport
LLPs on a preferential basis; that is,use on a first-priority basis subject to certain
conditions including minimum use requirements and/or the County's right to withdraw
the use or to require shared use,pursuant to the County's obligation to provide
reasonable access to Airfield facilities to federally-qualified operators. Preferential
areas may also be shared by parties with existing rights therein,pursuant to written
agreement between the parties and the County.
If so provided in its written Agreement with the County,an Airport LLP may occupy
and/or use land area,buildings improvements and facilities solely and to the exclusion
of others for the term of this Agreement, as long as the Airport LLP is not in default
thereunder, subject only to the terms and conditions set forth therein, controlling law,
and the right of the County to withdraw from such Agreement all or part of such land
area,buildings, improvements or facilities thereon,upon notice to the Airport LLP,as
provided in such Agreement.
f. Public Airfield Areas(a/k/a Public Airfield Facilities). Those areas designated
for use by Airport LLPs in common with other operators of aircraft for the following
purposes: Runways, for the purpose of landing and taking off of aircraft; Taxiways and
Taxilanes, for the purpose of ground movement of aircraft; and Ramp areas, for the
purpose of unloading and loading passengers,baggage, freight,mail, supplies and cargo
to and from the aircraft, together with the right to use designated portions of the ramps
for delivery and pickup of freight,cargo, and mail by ground vehicles or other means
and the right to reasonable use for it or its contracted vehicles servicing aircraft, and for
the purpose of performing self-fueling and other ramp services.
Airport LLPs are entitled to use the Public Airfield. Areas in common with other public
or permitted users, subject to compliance with the reasonable and non-discriminatory
terms and conditions (including the payment of rates, fees and charges)upon which
they are made available for such use and compliance with the reasonable rules and
regulations prescribed by, or which maybe prescribed by,the County with respect to
the uses thereof including,but not by way of limitation, rules,regulations and directives
relating to safety and security of the Public Airfield Areas.
g. Public Areas. Technically, the entire Airport is public because it is owned and
operated by a government entity and was acquired, developed and is operated largely
with public funds. However,public access to and use of this Public Airport is variously
limited, as described in these definitions,by the operation of federal, state and local
statutes,case law, rules, regulations and Agreements.
h. Reserved Areas. All those areas not otherwise expressly designated by the
County as defined hereinabove.
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i. Shared Exclusive Areas. Those areas designated for exclusive use by two or
more Airport LLPS.
6. Airport Facilities Designations. Facilities is a catchall word, including buildings,
pavement and other improvements,equipment and any personal property not included in the
definitions of Buildings, Improvements and Equipment, describing materials to provide
services, or to support the provision of services,to aeronautical and airport-related uses.
a. Air Operations Area (AOA). The portion of the Airport within the security
perimeter fence designated for aeronautical activities only, especially the storage
(covered and uncovered; transient, short-term and long-term)movement, servicing,
taking off and landing of aircraft.
b. Aircraft Parking Areas. The paved portions of the AOA identified and used
exclusively for the uncovered, non-temporary parking of aircraft and incidental
movement of Aircraft thereto and therefrom.
c. Aircraft Staging Areas.The paved portion of the AOA and the Airline and
General Aviation Areas identified and used for temporary parkmg of aircraft for the
purposes of loading,unloading,line service and incidental movement to or from
Aircraft Parking Areas.
d. Apron. The paved portion of the AOA around the outside perimeter of a
building or facility to a width of 15 feet.
e. ARFF.An acronym meaning Airport Rescue and Fire Fighting.
f Building. A roofed, enclosed, heated, insulated non-temporary structure with a
foundation and utilities.
g. Equipment. Business or personal property used by a Commercial Aeronautical
Operator in the provision of Commercial Aeronautical Services or Activities.
h. FEEI.An acronym that stands for furniture, trade fixtures, equipment and
inventory,but includes all business and personal property that is not real estate that is
used by a Commercial Aeronautical Operator in revenue-producing activities
(excluding aircraft).
i. Fixtures. As distinguished from trade fixtures, fixtures are property used by a
Commercial Aeronautical Operator that are attached to real estate and are not intended
to be removed upon the end of a tenancy unless otherwise-agreed by the parties.
j. GA Facilities. Public-use facilities on the Airport primarily to serve General
Aviation aircraft and passengers and S-FBOs, e.g. Aviation Fuel Farm, T-hangars, S-
FEO facility.
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k. Groundaide Area(Groundside). The portion of the Airport outside the security
perimeter fence designated for non-aeronautical activities in support of the Airport's
aeronautical activities including,without limitation,passenger ticketing and waiting,
baggage,loading and pickup,motor vehicle circulation and parking, ground
transportation(rental cars, taxis, limousines,buses and hotel/lodge/condo vans) and
non-aeronautical passenger services(food/beverage, gifts, telephones).
I. Hangar.An enclosed structure designed and used for the storage of Aircraft and
items necessarily incident to aeronautical operations.
m. Improvements. The products of the expenditure of funds relating to real estate
that are not Buildings or Facilities including, without limitation,pavement,utilities and
drainage structures.
n. Public Airfield Facilities.The paved portion of the AOA excepted from the
areas leased to the Airlines and the FBO(s) consisting of the runways,taxiways and
designated taxilanes.
o. Ramp.The paved portion of the AOA, identified and used exclusively for the
staging, storage and incidental movement of aircraft including Aircraft Parking Areas
and Aircraft Circulation and Staging Areas.
p. Runways.The paved portions of the AOA and the Public Airfield Facilities
identified and used exclusively by aircraft for taking off and landing and taxiing
immediately before and immediately after takeoffs and landings.
R. Security Identification Display Area, (SIDA) . That part of the AOA that is
reserved exclusively for use by Airlines and requires a security clearance for unescorted
access by persons and vehicles.
r. Taxilanes.The paved portion of the AOA identified and used exclusively for
the movement of aircraft to and from the Public Airfield Facility Taxiways from the
Airline and General Aviation Areas and for internal circulation of aircraft within those
areas.
s. Taxiways. The paved portion of the AOA and Public Airfield Facilities
identified and used exclusively for the movement of aircraft to and from the Runways
from the Airline and GA Areas.
t. Terminals.Buildings identified on the Airport Master Plan,as amended, for use
in Airline and General Aviation commercial operations as the connecting point between
the Groundside and the AOA between aircraft and passengers; includes all vertical
walls and openings.
u. Trade Fixtures.Business or personal property used by a Commercial
Aeronautical Operator that is attached to real estate but is intended to be removed upon
the end of a tenancy unless otherwise agreed by the parties.
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v. Turnoffs.The paved portions of the AOA and the Public Airfield Facilities
identified and used exclusively by aircraft for transition between the runways and the
taxiways.
7. Airport Rescue and Fire-Fighting. See ARFF, above.
8. Airport Revenue Bonds. Financial lending instruments that are the product of a
process to finance redevelopment, development and capital improvements on the
Airport by the issuance of municipal bonds (usually tax-free) that are repaid from and
secured by Airport revenues. As part of a Bond issue, the Airport makes certain
representations with respect to the management, operation and financing of the Airport
(official Statement)and undertakes certain responsibilities(Bond Covenants).
9. Airline. A Commercial Aeronautical Operator holding an operating certificate issued
by the Federal Aviation Administration (FAA) of the U.S. Department of
Transportation, pursuant to Federal Air Regulation (FAR) Part 121 or Part 135, and
operating under a published or non-published schedule, pursuant to a Certificate of
Public Necessity.
10. Airline Designations.
a. Affiate. Any air transportation company that (i) is a parent or subsidiary of
Lessee, or (ii) operates at the Airport under a trade name of Lessee and uses Lessee's
two-letter designator code for its flights serving the Airport, or (iii) operates at the
Airport using a trade name of a parent or subsidiary of Lessee and uses the two-letter
designator code of such parent or subsidiary for its flights serving the Airport.
During such period of time that an air transportation company is an Affiliate of Lessee
such Affiliate (1) shall have the same rights to use Lessee's leased premises and the
Airport as Lessee; (2) shall be charged at the same landing fee rates as Lessee without
payment of any non-signatory premiums; and (3) shall not be counted as a separate air
transportation company from Lessee for purposes of allocating the per capita portion of
any cost allocation formula, but such Affiliate's passengers shall be counted as
enplaned passengers of Lessee for purposes of any enplanement-based portion of such
formula.
b. Non-Signatory Airline. An Airline that does not qualify (or has not yet
qualified) as a Signatory Airline, but that occupies and uses the Airport Airline
Terminal and associate land areas and facilities pursuant to a written Agreement with
the County.
c. Requesting Airline. An Airline that is qualified to request occupancy and use of
the Airport Airline Terminal and associated land areas and facilities by having filed a
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complete application under the Airport's then-current Airline Terminal Access and
Space Allocation Policy,
d. Signatory Airline. An Airline that meets the following minimum requirements:
i. Has entered into a written Lease and Use Permit with the County, with a
term of at least one year, for the occupancy and use of the Airport
Airline Terminal and associated land areas and facilities; and
ii. Undertakes to provide and does provide scheduled Airline service of at
least one flight daily on a year-around basis, and/or on a multi-seasonal
basis; and
iii. Agrees to pay Airport rents, fees and charges on a compensatory basis;
and
iv. Has, in the sok discretion of the County, operated satisfactorily(e.g.,
with no defaults or notices of non-compliance) under a County Lease for
at least one full Operations Year(January- December),or has provided
extraordinary performance security in support of the obligations of a
Signatory Airline.
11. Alrport Master Plan. The planning document that is commonly referred-to as the
Airport Master Plan is in fact two separate Master Plans, as follows:
a. Airport FAA Master Plan. The Airport Master Plan adopted by the County
pursuant to federal regulations and procedures as a pre-requisite to federal funding of
Airport improvements.
12. Airport LLPs. An acronym meaning Airport Lessees, Licensees and Permittees. Those
persons or business entities holding current written Agreements with the County (variously
structured as leases, licenses or operating permits, or combinations thereof) to conduct
commercial operations at or from the Airport.
13. Commercial Floor Area. As further defined in the Pitkin County land Use Code, as
amended, Commercial Floor Area is interior habitable space, used or designed for commercial
purposes, which has growth impacts (employees, traffic generation, consumption of utilities,
etc.).
14. County. Pitkin County, a home-rule County organized under the laws of the State of
Colorado, as represented by its duly-elected Board of County Commissioners (BOCC). By
law, the County may only bind itself(by Motion, Resolution or ordinance) pursuant to a formal
vote at a duly-constituted public meeting.
IS. County Representative. The BOCC may be represented in matters affecting the
Airport by its designee, the County Manager, or the County Manager's designee, the Director of
Aviation or the Director of Aviation's designee, as indicated in writing.
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16. Date of Beneficial Occupancy (DBO). A date specified by the County on which an
Airport LLP begins revenue-producing activities at or from the Airport. For newly constructed
facilities,the DBO occurs after Substantial Completion and may be on or after the issuance of a
Certificate of Occupancy.
17. Director of Aviation. The County Representative for purposes of operational and
administrative decisions at the Airport.
18. Emergency. A situation or set of circumstances involving the Airport that presents
existing or imminent threat of substantial harm to life or property. An emergency may be
apparent or declared by the Director of Aviation or his designees or, in his absence, by
authorized ARFF, fire, emergency response or law enforcement personnel.
19. Enterprise Fund. An accounting device and financing process whereby all Airport
revenues and expenses are considered as one fund and not commingled with other County
revenues and expenses. The Airport has adopted the Enterprise Fund concept in part to come
into compliance with FAA Grant requirements that the Airport charge sufficient revenues to be
self-sustaining and that all Airport revenues be used for Airport-related purposes.
20. Environmental Quality Improvement Plan (EQIP). A written plan, incorporated into
an Airport Agreement that identifies existing and potential environmental hazards and plans for
the reduction or elimination of environmental degradation caused by operations arising from
the occupancy and use of Airport facilities pursuant to the Agreement.
21. Equitable Adjustment. A temporary or permanent adjustment in the revenue and/or
the expense structure of an Airport lease, license or permit that is negotiated by the parties
thereto in response to some future change in circumstances specified in the lease, license or
permit. An Equitable Adjustment may provide for a net decrease in the rent, fees or charges
owed to the Airport by the Airport LLP and/or a decrease in the obligations of the Airport LLP.
An Equitable Adjustment is to be the minimum adjustment that is commercially reasonable to
respond to the change in circumstances.
22. Exclusive Right. A power, privilege or other right excluding or declaring another from
enjoying or exercising a like power, privilege, or right. An exclusive right may be conferred
either by express agreement, by imposition of unreasonable standards or requirements, or by
any other means. Such a right conferred on one or more parties,but excluding others from
enjoying or exercising a similar right or rights, would be an exclusive right.
The grant by an Airport of an exclusive right to conduct an aeronautical activity, which is
forbidden by federal regulation, is distinguished from the grant by an Airport of an exclusive
right to occupy or use real estate, which is permitted by federal regulation under certain
conditions.
23. FAA. Federal Aviation Administration, Department of Transportation, United States
Government.
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24. FAA Facilities. Those facilities leased, constructed, used or occupied by the FAA,
including the FAA ATC Tower,ATCRBS Bank Building and related facilities.
25. FAR.A Federal Aviation Regulation promulgated by the FAA.
26. FBO Facilities. Public-use facilities on the Airport primarily to serve the customers of
a fixed-base operator, e.g., GA Terminal, Main Storage Hangar, Maintenance and Repair
Shop/Hangar.
27. Fixed Base Operator(FBO). As more fully defined in Airport's Minimum Standards, a
Commercial Aeronautical operator that maintains facilities at an airport for the purpose of:
a. engaging in the retail sale of aviation fuels primarily to purchasers other than(1)
scheduled or supplemental Airlines,or(2)the Department of Defense; and
b. performing the minimum aggregation and level of the following aeronautical
activities and/or services: retail fuel sales, maintenance, servicing, parking, tie-down
and storage.
An Operator that provides at least the minimum required aggregation and level of facilities,
activities and services, including the retail sale of aviation fuel, is classified as a full-service
Fixed Base Operator (FBO); an Operator that provides less than the minimum required
aggregation of facilities, activities and services and does not provide the retail sale of aviation
fuel, is classified as a Specialized Fixed Base operator(S-FBO).
28. Fueling Operation(s) The receipt, storage or delivery of Fuel for Aircraft at the
Airport.
29. General Aviation (GA). The classification of Airport uses involving either non-
aeronautical commercial aircraft and uses, or aeronautical commercial aircraft and uses under
FAR Part 91 and 135 that do not provide scheduled service or require an FAA Certificate of
Public Necessity.
30. Handling Agreement. A written Agreement between a Signatory Airline and a third
party, for the Signatory Airline to provide certain services necessary to support the provision of
scheduled commercial air service to the Airport by the Requesting Airline.
31. Lease Year, License/Permit Year or Operations Year. A lease year or operations
year, hereunder shall be as specified in an Airport Agreement or, if not specified, a calendar
year commencing on January 1.
32. Person. An individual, firm, partnership, corporation, company, association,joint-stock
association, or governmental entity. It includes a trustee, receiver, assignee, or similar
representative of any of them.
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33. Premises. Certain identified Airport land areas, buildings and facilities, collectively,
that are occupied and used by a Signatory Commercial Aeronautical Operator pursuant to an
Agreement with the County.
34. Procurement Action. An administrative process, undertaken by the County pursuant
to its then-current Procurement Code, for the public solicitation and competitive selection of a
provider of goods or services to or through the County.
35. Repair and Replacement. The procedures necessary to correct damage to any fixtures,
trade fixtures or equipment caused by casualty or passage of time, in order to return such
damaged items to the same condition as when initially installed and/or constructed, ordinary
wear and tear excepted. All repairs made shall be at least equal in quality to the original
improvements constructed.
36. Retail Fuel Sales. The conduct of Fueling Operations by a Person for money or other
valuable consideration(present,past or future)including services of any kind whatsoever.
37. s-FBO Facility. A separate building containing separate aircraft hangars, staging and
parking areas, and supporting administrative,reception and storage areas for the operation of 5-
FBOs.
38. Self-Fueling Operations. The conduct of Fueling operations by a Person for its own
Aircraft,using its own equipment and by its own employees.
39. Signatory Airport Operators. General Aviation Commercial Aeronautical Operators
holding valid, then-current written leases, licenses or permits from the County to conduct
and/or provide Aeronautical Activities or Services.
40. Specialized Fired-Base Operator or S-FBO. As more fully defined in the Minimum
Standards, a Commercial Aeronautical Operator that is permitted by the County to provide one
or more Aeronautical Activities or Services at or from the Airport,but fewer than the minimum
aggregation of facilities, activities and services required to be qualified as an FRO.
An Operator that provides at least the minimum required aggregation and level of facilities,
activities and services, including the retail sale of aviation fuel, is classified as a full-service
Fixed Base Operator (FBO); an Operator that provides less than the minimum required
aggregation of facilities, activities and services and does not provide the retail sale of aviation
fuel, is classified as a Specialized Fixed Base Operator(S-FBO).
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EXHIBIT 2
Aspeu/Pitkln County Airport
Airline Lease and Use Agreement
PREFERENTIAL USE AREAS AND FACILITIES; STANDARDS AND PROCEDURES
The County reserves certain rights in certain Airport areas and facilities occupied and
used by its Lessees, Licensees and Permittees ("Airport LLPs") that are designated
"Preferential Use" in order to accommodate a number of public interests, including: to
maximize the efficient use of all Airport land areas, buildings and facilities; to comply with its
obligations under federal law in providing reasonable public access to the Airport for
commercial aeronautical operators and accommodating the entry to the Airport, of new
Airlines; and to ensure uniform treatment access to and occupancy and use of the Airport by all
Airline.
To these purposes, an Airline seeing preferential use of certain Airport areas, shall be subject to
the following procedure:
1. Whenever a new Airline becomes qualified, under regulations established by the
Director of Aviation, to apply for access to the Airline Terminal (or additional space at the
Terminal), such Airline ("Requesting Airline") shall first file a Notice of Request for Access
with the Director of Aviation, which Notice shall contain all pertinent details of the proposed
Airline operations including, without limitation, the amount, type and location of land areas,
buildings and facilities requested; the type and schedule of aeronautical services to be provided;
the commencement date, agreement term and agreement type requested for use of the Airport;
the number and type of aircraft to be used and ground support equipment; the types and number
of personnel to be used.
Upon receipt of such notice, the Director shall determine whether the Requesting Airline falls
into one of the following categories: (a) Provider of temporary or seasonal service not requiring
additional commercial floor area; or (b) Provider of permanent, year-round service not
requiring additional commercial floor area; or (c) Provider of permanent year-round service
requiring additional commercial floor area.
If the proposed operation requires additional commercial floor area (by construction or
conversion), the Director of Aviation shall analyze the proposal in light of the Airport Planning
Process and require the appropriate land-use and building permit applications.
2. If the Director of Aviation determines that the Requesting Airline either does not
require additional commercial floor arca or such additional floor area is not vacant, the Director
shall forward the Notice of Request for Access to all Signatory Airlines and thereafter the
Requesting Airline and the Signatory Airlines all shall have the obligation to negotiate in good
faith to reach an agreement to accommodate the Requesting Airline, whether by sublease, sub-
license, "handling" agreement or the like.
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3. If negotiations are fruitless and the Requesting Airline demonstrates to the satisfaction
of the Director of Aviation that it has pursued all reasonable efforts to secure accommodation
with the Signatory Airlines without success, the Director of Aviation shall then notify all
Signatory Airline tenants at the Airport in writing that, if the Requesting Airline is not
accommodated within a reasonable period from the receipt of such notice, the Director of
Aviation shall select one or more of the Signatory Airline tenants at the Airport to
accommodate such Requesting Airline.
4. If, at the end of such period specified, the Requesting Airline has not been
accommodated, the Director of Aviation shall select this Airline (i.e., the undersigned airline)
and/or another Airline tenant at the Airport to accommodate the Requesting Airline taking into
consideration such factors including, without limitation: current utilization of Exclusive and/or
Preferential Use Space (on a gross flight number and/or enplaned passenger basis), schedule
compatibility, union work rules, and competitive relationships. Once a decision is made, the
Director of Aviation shall send written notice to the Signatory Airline(s) selected to
accommodate the Requesting Airline to begin accommodation of such Requesting Airline
within thirty(30) days from the receipt of such notice. The Director of Aviation shall include
in such notice the basis for the decision. The decision of the Director of Aviation shall be final.
5. The County reserves the right to establish and determine, in its sole discretion, the
standards and priorities for occupancy and use of the "Preferential Use" areas and facilities
between and among classifications of Commercial Aeronautical Operators, which standards
and or priorities may include, without limitation and in no order of priority: the numbers of
enplaned passengers to be served by the operator on an annual basis, either historically or
projected; the length of term of the Airport Agreement requested of the County by the operator;
the nature and extent of any capital improvements to the Airport to be funded by the operator;
the respective initial dates of service of the affected operators to the Airport; and the extent to
which the operator complies with or advances the County's air service, airport management,
airport planning and land use planning goals.
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EXHIBIT 3
Aspen/Pitkin County Airport
Airline Lease and Use Agreement
United Airlines, Inc.
Current Premises, Futures and Equipment
2.1.2 Airline Tel veinal
2.1.2.1 Exclusive Areas: (4,870 sq. ft.)(Red)
a) Ticketing counter,Ancillary Administration,Passenger Service
and Signage Areas:
b) Passenger Ticketing Queuing Areas:
c) Baggage Makeup Area: (including baggage conveyor belt and
access doors)
d) Administration and Operations Areas.
e) Baggage Service Office
t) Passenger Service Podiums.
g) Baggage Cart Unloading Area.
h) Parts and Utilities Room
i.) Baggage Area Office Space
2.1.2.2 Preferential Use Areas: (193 sq. ft.)(Yellow)
a) Gate Podium, Ancillary Administration, Passenger Service and
Signage Areas(including counter shell and digital signage)
b) Curbside Baggage Belt
2.1.2.3 Shared Exclusive Use Areas: (11,567 sq. ft.)(Blue)
a) Central Passenger Services Area
b) Passenger Security Gate and Securing Area
c) Secured Passenger lloldroom/Boarding Area
2.1.2.4 Common Areas:Non-exclusive areas designated as"common areas"in
and around the Terminal consisting of:
1) Motor vehicle access roads;
2) Motor vehicle parking lots (public and employee);
3) Curb(for passengedbaggage loading/unloading);
4) Paved sidewalk/passenger loading/unloading areas;
5) Pedestrian access ways,doors and vestibules;
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6) Corridors/ramps;
7) Lobbies/passenger waiting areas;
S) Public restrooms;
9) Exterior landscaped/seating areas.
10) Existing vacant FID cabinets,if any.
2.1.3 Airline Terminal SIDA
2.1.3.1 Exclusive Use Outdoor Areas: (3,241 sq. IL) (Green)
a) Ground Service Equipment Staging Area.
2.1.3.2 Preferential Usc Areas: Airline shall have the non-exclusive use of any
aircraft staging spaces, together with appurtenant ramp apron areas, at such times as
Airline requires such Spaces for the loading, unloading or ovemighting of its aircraft
engaged in scheduled passenger service. Airline shall coordinate its operational
requirements with other Airlines/ground handlers at the Airport to ensure maximum
utilization of the Airport's aircraft staging spaces. The provisions and procedures of
Exhibit 2 to this Agreement shall not be applicable to the Spaces or Airline's preferential
right to use the Spaces.
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EXHIBIT 4
Aspen/Pitldn County Airport
Airline Lease and Use Agreement
United Airlines, Inc.
2017 RATES AND CHARGES
4.1 Rents. Fees and Charges:
4.1.1 Occupancy and Use of Airline Terminal interior,AOA and groundside:
(interior based on$75.81 sq. ft., exterior based on$ 25.27 per sq. ft.):
4.1.1.1 Exclusive Use Areas: $ 369,194.70 annually; $30,766.23 monthly.
4.1.1.2 Preferential Use Areas: $14,631.33 annually, $1,219.28 monthly.
4.1.1.3 Exclusive, outdoor covered space: $81,900.07 annually, $6,825.01
monthly.
4.1.1.4 Shared Exclusive Use Areas: $876,894.27 annually, $ 73,074.52 monthly;
allocated monthly at 20% split between/among Airlines equally and 80% split between/among
Airlines according to their respective proportion of enplaned passengers.
4.1.2 Use of Public Airfield Facilities(Landing fees): A fee for each Signatory,
Pre-Signatory&Multi-Seasonal revenue landing at the Airport computed at a rate of$5.67 per
1,000 lbs. of maximum allowable gross landing weight of Airline's aircraft. Each seasonal
aircraft revenue landing at the Airport is computed at a rate of$7.93 per I,0001bs of maximum
allowable gross landing weight of Airlines aircraft.
4.1.3 Passenger Facility Changes: To the maximum extent required by
applicable law or regulation,Airline shall fully collect and timely pay to County all revenue from
Passenger Facility Charges(PFCs) duly adopted by County, pursuant to federal law or
regulation. PFC revenues held by Airline or an agent of Airline after collection are held in trust
for the beneficial interest of County. Neither Airline nor any of its agents holds any legal or
equitable interest in the PFC revenues except for any handling fee or interest collected on
unremitted proceeds as authorized in 14 C.F.R. 158.53 or any successor regulation. When
required by applicable Federal PFC regulations, Airline shall hold such funds in a separate trust
account for the benefit of County; such funds shall not be commingled with Airline funds or
made subject to the claims of Airline creditors, and Airlines shall comply in all respects with
such PFC Regulations.
39
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EXHIBIT 5
Aspen/Pitkin County Airport
Airline Lease and Use Agreement
ENVIRONMENTAL QUALITY IMPROVEMENT PLAN ("EQIP").
With respect to the Lease and Use Agreement between the County and Airline,the EQIP for
Airline shall have the following elements, consistent with federal law, the County's statutory
and contractual obligations to the Federal Aviation Administration, and Title X, (repealed and
reenacted Ord. 028-05) (hereinafter"Title X"), of the County Code:
I. Air Pollution. Airline shall take the following steps to reduce particulates and
emissions(including, without limitation, CO, CO' CFCs and PM-10):
a. None at this time.
2. Water Pollution and Conservation. Airline shall take the following steps to reduce
actual or possible water pollution and to conserve water usage:
a. Comply with the Airport's adopted drainage and Storm Water Management
Plan
b. Identify and Comply with fuel spill procedures as required by applicable law.
3. Noise Pollution. Airline shall take the following steps to reduce the impact of noise on
the Airport and the surrounding residential and commercial communities:
a. Aircraft noise abatement procedures, as provided in Title X,Section 10.08.060,
(repealed and reenacted Ord. 028-05)
b. Allowed hours of operation,as provided in Title X, Sections 10.12.050 and
10.12.060, (repealed and reenacted Ord. 028-05).
4. Solid Waste Management. Airline shall take the following steps to reduce the present
and possible future impacts of solid wastes:
a. Recycling
1) Avoidance of purchases with excessive packaging
2) Re-use of materials whenever possible
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3) Purchase of recyclable material
4) Recycling of all recyclable materials
b. Handling, storage and disposal of hazardous materials
5. Fuel and Energy Conservation. Airline shall take the following steps to conserve
fuel and energy in its operations:
a. Reduction in aircraft and motor vehicle traffic congestion
b. Avoidance of excessive consumption of fuel
c. Avoidance of loss of fuel during transfer and storage.
d. Limitation on aircraft idling,as provided in Title X, Section 10.08.050(K)(C),
(repealed and reenacted Ord. 028-05).
N.B.: The County acknowledges that the above-listed elements are organized as a matter of
convenience and that a number of operational practices have impacts in multiple elements, e.a., a
decrease in motor vehicle traffic congestion could decrease air pollution, the risk of water
pollution,the risk of handling hazardous materials and the excessive use of fuel.
41
EXHIBIT 6
Aspen/PitIcin County Airport
Airline Lease and Use Agreement
CLEANING,MAINTENANCE AND REPAIR OF PREMISES AND MAINTENANCE,
REPAIR AND REPLACEMENT OF FIXTURES AND EQUIPMENT.
As used in the Lease and this Exhibit:
The structural elements of the Airline Terminal consist of the foundation, bearing walls, roof,
and exterior surfaces(except glass in Airline Premises).
The service elements of the Airline Terminal consist of: water and sewer service, including
plumbing fixtures; electrical service, including lighting; and heat and ventilation(all to the
boundary of Airline's Premises).
The common use and non-exclusive areas of and relating to the Airline Terminal consist of:
lobbies/passenger waiting areas; public restrooms; corridors/ramps;pedestrian access ways,
doors and vestibules;motor vehicle access roads; motor vehicle parking lots (public and
employee); curb (for passenger/baggage loading/unloading); paved sidewalk/passenger loading,
unloading areas; and exterior landscaping/seating areas.
"Cleaning" shall mean daily pickup and disposal of trash and litter and cleaning(periodically or
as indicated)of floors, furnishings, fixtures, trade fixtures, equipment, interior surfaces and glass.
"Maintenance,"with respect to Premises, shall mean procedures necessary(daily,periodically or
as indicated)to monitor and keep the interior and exterior surfaces in an attractive condition, and
in constant good order and in the same condition as when initially constructed,ordinary wear and
tear excepted and to prevent deterioration of structural elements,roofs and the interior and
exterior surfaces.
"Repair"with respect to Premises, shall mean the procedures necessary to correct damage to any
improvements caused by casualty, in order to return such damaged areas to the same condition as
when initially constructed. All repairs made shall be at least equal in quality to the original
improvements constructed,ordinary wear and tear accepted.
"Maintenance" with respect to Fixtures and Equipment, shall mean the procedures necessary
(daily,periodically or as indicated)to monitor and keep the fixtures and equipment in good
working order. At the end of the Airline's occupancy and use of the Premises hereunder,the
Airline is responsible for returning all Airport fixtures and equipment used by it to the County in
good working order and in a condition as good as, or better than, received at the beginning of
such occupancy and use, ordinary wear and tear accepted.
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"Repair and Replacement," with respect to Fixtures and Equipment, shall mean the procedures
necessary to correct damage to any fixtures, trade fixtures or equipment caused by casualty or
passage of time,in order to return such damaged items to the same condition as when initially
installed and/or constructed. All repairs made shall be at least equal in quality to the original
improvements constructed.
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EXHIBIT 7
Aspen/Pitldn County Airport
Airline Lease and Use Agreement
COUNTY LICENSE/PERMIT MINIMUM INSURANCE REQUIREMENTS:
1. Forms,limits, deductibles and endorsements.
a. Statutory Worker's Compensation: Colorado statutory minimums
b. Liability:
1) Liability Insurance shall be maintained by airline for the term of this
Agreement. Coverage shall include,but not be limited to, Premises and
Operations, Products and completed Operations Coverage and Aircraft
Liability,and Terrorism or War Risk(to the extent available from, or
subsidized by,the federal government.) Coverage shall be applicable to the
operation of all Airline's mobile and ground equipment at the airport. The
limits of coverage shall not be less than,with a sublimit allowed for personal
injury to non-passengers in the amount of$25,000,000 for all operating
aircraft types:
Airlines Operating Aircraft with over on hundred(100) seats:
Bodily and Personal Injury$200,000,000 Combined Single Limit and
Property Damage Liability—Each Occurrence
Airlines Operating Aircraft with seventy-five(75) to one hundred (100) seats:
Bodily and Personal Injury$150,000,000 Combined Single Limit and
Property Damage Liability—Each Occurrence
Airlines Operating Aircraft with fifty(50)to seventy-five(75) seats:
Bodily and Personal Injury$100,000,000 Combined Single Limit and
Property Damage Liability—Each Occurrence
Airlines Operating Aircraft with less than fifty(50) seats:
Bodily and Personal Injury$50,000,000 Combined Single Limit and Property
Damage Liability—Each Occurrence
2) Maximum Deductible: $10,000 each loss;or$5,000,000 each loss, provided
airline provides the County with a surety for the full amount for the term of
the contract.
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3) Endorsements:
X Comprehensive Form(All risks)
X Premises/Operations
X Underground,Explosion& Collapse Hazard
X Products/Completed Operations
X Contractual (Hold Harmless Coverage)
X Independent Contractors and Subcontractors**
X Property Damage
X Personal Injury
Pollution and Environmental Hazard
**Airline agrees to require that any contractor/subcontractor enlisted by Airline at the
Aspen/Pitkin County Airport list"Pitkin County' as an additional insured"as our
interests may appear" on its Certificate of Insurance.
c. Property Insurance
1) Building Contents: Replacement Value
d. Commercial Automobile Liability Insurance
1) Bodily Injury/Property Damage, Combined Single Limit: $5,000,000
2) Endorsements:
X Any Auto
X All Owned Autos
X Hired Autos
X Non-Owned Autos
e. Special Coverages(limits, conditions, deductibles and endorsements to be
determined by separate agreements of County and Airline):
X (a) Any coverage required by United Airlines, Inc. lenders
X (b)Performance Bond
2. Certificates of Insurance. To provide evidence of the required insurance coverages,
copies of Certificates of Insurance in a form acceptable to the County shall be filed with the
County(through the Director of Aviation)no later than ten(10)calendar days prior to
commencement of operations at,to or from the Airport, and within 30 days upon renewal of any
policy. Failure to file or maintain acceptable Certificates of Insurance with the County is agreed
45
to be a material breach of any lease, license or permit and grounds for termination thereof.
These Certificates of Insurance shall contain a provision that coverage afforded under the
policies will not be canceled or adversely materially altered unless at least thirty(30) calendar
days, except ten(10) calendar days as respects non-payment of premium,written notice.
3. Miscellaneous. The policies of insurance described above shall:
a. Be on a primary basis,non-contributory with any other insurance coverages
and/or self-insurance carried by the County.
b. Include a Waiver of Subrogation Clause for Property Insurance only
Include a Separation of Insureds Clause(Cross Liability).
46