HomeMy WebLinkAboutbocc.con.237.22 - BOCC AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, AUTHORIZING THE CHAIR TO SIGN A LEASE
AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND AMERICAN AIRLINES , INC. FOR OPERATION AT THE ASPEN/PITKIN COUNTY AIRPORT/SARDY FIELD
ORDINANCE NO. 030-2022
RECITALS
WHEREAS, Pursuant to 30-35-301 C.R.S., the Board of County Commissioners (“BOCC”) of
Pitkin County, Colorado 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, and;
WHEREAS, Pursuant to Section 2.8.1 of the Home Rule Charter (“HRC”), 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, and;
WHEREAS, 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 alia, C.R.S. Sections 30-11-107, 30-15-401, 30-35-201/202, 41-4-101 et. seq., as amended, Title 10 of the Pitkin County Code, as amended and Section 8.7 of the Pitkin County Home Rule Charter, and;
WHEREAS, American Airlines, Inc., (“the Airline”) is in the business of providing scheduled airline service pursuant to an operating certificate issued by the Federal Aviation Administration under FAR Par 121 or Par 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;
WHEREAS, the lease agreement with the Airline outlining the provisions for operations at the Airport and the use of certain facilities is due for renewal, and;
WHEREAS, the Airline has communicated its desire to renew the lease agreement to commence
on October 1, 2022, with minor modifications related to insurance requirements, updated terminology definitions, and the inclusion of the current year rates and charges, and;
WHEREAS, the BOCC has determined that to maintain a formal lease agreement with the
Airline is an important business component to the ongoing operations of the airport facility and
will provide greater assurances of both financial sustainability and space/asset management, and;
Contract No. 237-2022
Attached
WHEREAS, The BOCC and the Airline have agreed upon a term of the proposed lease agreement for a period of three (3) years with an automatic renewal for two (2) successive years
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, of such party’s intent not to enter into such renewal term, and; WHEREAS, The BOCC finds that adoption of this ordinance is in the best interest of the citizens
of and the visitors to Pitkin County.
NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin
County, Colorado that it hereby adopts an Ordinance Authorizing the Chair to Sign a Lease
Agreement (Attached hereto as Exhibit A) Between the Board of County Commissioners and
American Airlines, Inc. for Operation at the Aspen/Pitkin County Airport/Sardy Field, 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.
INTRODUCED AND FIRST READ ON THE 22ND DAY OF JUNE, 2022 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE 13TH DAY OF JULY 2022.
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE 30TH DAY OF JUNE, 2022.
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED
ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE 30TH DAY OF JUNE 2022. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE 13TH DAY OF
JULY 2022.
POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE 14TH DAY OF JULY, 2022.
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE 21ST DAY OF JULY, 2022.
ATTEST: BOARD OF COUNTY COMMISSIONERS
By _________________________ By: _____________________________
Julia Ely Patti Clapper, Chair Deputy County Clerk Date: ______________
APPROVED AS TO FORM: MANAGER APPROVAL ___________________________ _________________________________
John Ely, County Attorney Phylis Mattice for Jon Peacock, County Manager
Form Revised 01-01-2022
Jul-14-2022
LEASE AND USE AGREEMENT
Aspen/Pitkin County Airport
(Signatory Airline)
October 1, 2022
Lessor/Permittor: BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
530 East Main Street, Third Floor
Aspen, Colorado 81611
(970) 920-5190 (Phone)
(970) 920-5198 (Fax)
Lessee/Permittee: AMERICAN AIRLINES, INC.
1 Skyview Drive, MD8E100
Fort Worth, Texas 76155
(682)278-7811 (Phone)
Contract No. 237-2022
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TABLE OF CONTENTS
RECITALS ................................................................................................................................................ 1
1. INTENT AND INCORPORATION ............................................................................................ 2
1.1 Intent ................................................................................................................................... 2
1.2 Definitions........................................................................................................................... 2
1.3 Exhibits ............................................................................................................................... 2
2. USE OF AIRPORT FACILITIES ............................................................................................... 3
2.1 Demise of Premises............................................................................................................. 3
2.2 Acceptance of Premises ...................................................................................................... 3
2.3 Additional Premises and/or Uses ........................................................................................ 3
2.4 Additional Airport Fixtures and Equipment ....................................................................... 3
2.5 County’s Reserved Rights ................................................................................................... 4
2.6 Air Carrier Accommodation ............................................................................................... 5
3. TERM............................................................................................................................................. 6
3.1 Initial Term ......................................................................................................................... 6
3.2 Renewal Terms ................................................................................................................... 6
3.3 Holding Over ...................................................................................................................... 6
3.4 Early Termination ............................................................................................................... 6
4. FINANCIAL OBLIGATIONS OF AIRLINE ............................................................................ 6
4.1 Rent, Fees and Charges ....................................................................................................... 6
4.2 Terms and Conditions of Payments .................................................................................... 7
4.3 Payment of Taxes ................................................................................................................ 7
4.4 Financial Security for all Airline Operations ...................................................................... 7
5. OTHER OBLIGATIONS OF AIRLINE .................................................................................... 8
5.1 Operations ........................................................................................................................... 8
5.2 Physical Security for Premises ............................................................................................ 8
5.3 Environmental Quality Improvement Plan (EQIP) ............................................................. 9
5.4 Reports ................................................................................................................................ 9
5.5 Cleaning, Maintenance and Repair and Replacement ...................................................... 10
5.6 Utilities .............................................................................................................................. 10
5.7 Snow Removal .................................................................................................................. 10
5.8 Trademarks, Trade Names ................................................................................................ 10
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5.9 Airline Performance Standards ......................................................................................... 10
5.10 Signs .................................................................................................................................. 11
5.11 Installations/Additions/Alterations/Improvements ........................................................... 11
5.12 Waste................................................................................................................................. 11
5.13 Liens/Claims ..................................................................................................................... 11
5.14 County Pro-Competition Policy ........................................................................................ 11
5.15 Assignment and Operations for Other Airlines ................................................................. 11
6. INDEMNITY AND INSURANCE ............................................................................................ 12
6.1 Airline Indemnity .............................................................................................................. 12
6.2 Airline Insurance ............................................................................................................... 12
6.3 County Insurance .............................................................................................................. 13
7. OBLIGATIONS OF COUNTY ................................................................................................. 13
7.1 Operation of Airport ......................................................................................................... 13
7.2 Utilities .............................................................................................................................. 13
7.3 Snow Removal .................................................................................................................. 13
7.4 Maintenance, Cleaning and Repair ................................................................................... 13
7.5 Quiet Enjoyment ............................................................................................................... 14
8. OTHER AGREEMENTS ........................................................................................................... 14
8.1 Coordination with Others .................................................................................................. 14
8.2 Subjections, Exceptions and Reservations ........................................................................ 14
8.3 Airport Master Planning and Land Use Planning ............................................................. 14
8.4 Compliance with Applicable Laws and Regulations ........................................................ 14
9. DEFAULT/TERMINATION/SURRENDER ........................................................................... 15
9.1 Events of Default .............................................................................................................. 15
9.2 Notice of Default............................................................................................................... 15
9.3 Right to Cure ..................................................................................................................... 15
9.4 Notice of Termination/Right to Re-Enter ......................................................................... 16
9.5 Remedy not Exclusive ...................................................................................................... 16
9.6 Surrender ........................................................................................................................... 16
10. GENERAL PROVISIONS ......................................................................................................... 16
10.1 Notices .............................................................................................................................. 16
10.2 Entire Agreement .............................................................................................................. 17
10.3 Severability ....................................................................................................................... 17
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10.4 Modification ...................................................................................................................... 17
10.5 Non-Waiver....................................................................................................................... 17
10.6 No Presumption ................................................................................................................ 17
10.7 Relationship of Parties ...................................................................................................... 17
10.8 Attorney Fees .................................................................................................................... 17
10.9 Governing Law and Venue ............................................................................................... 17
10.10 Effect of Lease .................................................................................................................. 17
10.11 Headings ........................................................................................................................... 17
10.12 Time of Essence ................................................................................................................ 17
10.13 Limitation of Benefit......................................................................................................... 18
10.14 Capacity to Execute .......................................................................................................... 18
10.15 Most Favored Nations Clause ........................................................................................... 18
LIST OF EXHIBITS
Exhibit 1 Definitions for Use in Airport Leases, Licenses and Permits
Exhibit 2 Preferential Use Areas and Facilities; Standards and Procedures
Exhibit 3 Airline Leased Space
Exhibit 4 Rate Calculations
Exhibit 5 Environmental Quality Improvement Plan (“EQIP”)
Exhibit 6 Cleaning, Maintenance and Repair of Premises and Maintenance, Repair and Replacement of
Fixtures and Equipment
Exhibit 7 County License/Permit Minimum Insurance Requirements
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LEASE AND USE AGREEMENT Aspen/Pitkin County Airport (Signatory Airline)
THIS LEASE AND USE AGREEMENT, made effective as of _______________, 2022, is by and between the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO (the "County"), a Colorado home-rule County, as Lessor/Permittor, and AMERICAN AIRLINES, Inc., (the “Airline”) as Lessee/Permittee.
RECITALS
1. 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 passenger 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 alia, 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.
Nov-01-2022
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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:
1. INTENT AND INCORPORATION
1.1 Intent It is the intent of the parties 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 Passenger 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 l.
1.2.2 As defined by the Federal Aviation Administration (“FAA”), through its enabling legislation and Federal Aviation Regulations (“FAR’s”), 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 (“TSR’s”), 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 Passenger 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 agreement 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
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
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2. USE OF AIRPORT FACILITIES
2.1 Demise 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 3A (Passenger Terminal Facility Plan), subject to the terms and conditions of this Agreement, as follows:
2.1.1 Public Airfield Facilities. As defined in Exhibit 1.
2.1.2 Passenger Terminal. 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 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 Passenger 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 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.
2.1.4 Licenses and Easements.
2.1.4.1 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 Airport 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 ticketing/departure 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, the Passenger Terminal and Premises and agrees that they are fit for Airlines’ use and enjoyment, and are accepted and will be occupied hereunder on an "as is" basis.
2.3 Additional Premises and/or Uses If, during the term of this Agreement, additional Premises are 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 are 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
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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 The right unilaterally to change, during the term of this Agreement, the rights and obligations of Airline in areas designated as "Preferential Use Areas" herein by the standards and process set forth in Exhibit 2.
2.5.2 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 County's rights hereunder, preventing waste or loss, or responding to emergencies.
2.5.3 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 Premises 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 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
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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.
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.
2.5.10 The right from time to time to amend 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 Uses Permitted
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 Air 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
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constitute an exclusive aeronautical activity in violation of 49 U.S.C. Section 40103(e) or 49 U.S.C. Section 40107(a)(4).
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 ops/cargo space in the Passenger 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 Passenger Terminal accessible to the initiating air carrier. In such event, Airline agrees to attend and negotiate in good faith to accomplish the provision of such access, including permitting requesting airline to utilize Airline’s premises for the time period necessary to permit passenger loading and unloading operations in conjunction with the scheduled operations of such requesting airline at times when the use of such facilities shall not interfere with Airline’s planned operations. 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 three-year period commencing at 12:01 a.m., local time, October 1, 2022, and expiring at 12:00 a.m., local time, September 30, 2025, unless earlier terminated.
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 two successive terms of one (1) year each, with the final renewal term ending on September 30, 2027. 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 may be sooner terminated 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
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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 Term, 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.
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, set-off or escrow of any kind whatsoever. Rent for Exclusive and Preferential Use Areas shall be due and payable on the 1st of each calendar month for rent due in the same month, or part thereof during the Term of this Agreement. Rent for Shared 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 on any unpaid and delinquent balance for 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
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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, 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 after the written demand of County, forthwith remit to County a reinstatement of the Surety or Letter 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 agrees 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
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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 are 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, 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.
5.3 Environmental Quality Improvement Plan (EQIP)
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 EQIP for its occupancy of the Premises and operations therefrom and then, upon approval by the County, to implement the same, which EQIP 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 10th 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.
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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 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 Passenger 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 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.
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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 be the subject of agreements.
5.10 Signs 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/Alterations/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 architectural/engineering portions of the installations/additions/alterations/ improvements;
5.11.3 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 future ownership of the installations/ additions/ alterations/ improvements; and
5.11.7 Provision for return of the Premises to original condition at the end of the Term hereof, including any adjustments to the Security hereunder, ordinary wear and tear excepted.
5.12 Waste Airline shall not commit or allow any waste upon or in connection with the Premises.
5.13 Liens/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 Operations for Other Airlines
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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 may be 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 alia, 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; provided, however, that such indemnity or release shall not be construed as an indemnity or release for loss arising from the negligence or willfully wrongful acts of County.
6.1.2 For purposes of this section “Airline” shall mean the Lessee/Permittee 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
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such insurance policies, from companies licensed to sell such policies in the State of Colorado, as will protect itself, the County (with the County named as additional insured), and others as specified, from claims for bodily injuries, death, personal injury or property damage, which may arise out of or result from 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. 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 Passenger 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 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 accessways 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 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 Passenger 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 Passenger Terminal facilities or areas, shall be in writing and shall be made immediately after Airline has knowledge or has received notice thereof.
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7.5 Quiet Enjoyment 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 various 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 Subjections, Exceptions and Reservations This Agreement is subject to any present County agreements with the United States (which are typically through the Federal Aviation Administration (FAA)) and to any past, present or future statutes or regulations of the United States respecting the funding and/or operation of a public airport and to any terms, conditions or covenants of airport financing instruments existing on the effective date of this Agreement.
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: Any Airport Master Plan adopted pursuant to Planning and Zoning Resolution 89-39 and Board of County Commissioners Resolution 89-19; an FAA-approved Airport Layout Plan (“ALP”); a Land Use Identification Plan; any 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 the Highway 82 EIS; and certain projects 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.
8.4 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:
8.4.1 Fully comply with all applicable laws, rules and regulations, as such now exist or hereafter may be amended or promulgated, of the United States (including especially, the State of Colorado, and the County of Pitkin, and all departments and agencies thereof. The present adopted county
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Codes, plans, rules and regulations, are the Pitkin County Code, including especially Title II (Land use Code), and Title X (Airport Regulations); Airport Security, Operations and Emergency Plans; and Airport Snow and Ice Control Plan.
8.4.2 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 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.
8.4.3 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
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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 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 of Termination/Right 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 termination 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 property of Airline or of anyone claiming under, 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
10.1 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 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
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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 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.
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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.
Any approval required by either party to this agreement shall not be unreasonably withheld or delayed.
Lenore Mason DiamondOct-04-2022Managing Director - Airport AffairsPamela PutrinoNov-01-2022
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MAILING ADDRESS (for Notices):
Director of Aviation American Airlines, Inc. 0233 E. Airport Road, Suite A Debbie Nahas Aspen, Colorado 81611 Manager, Corporate Real Estate 1 Skyview Drive, MD8E100 Fort Worth, TX 76155 With copies to: Pitkin County Manager 530 E. Main St. Aspen, CO 81611
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EXHIBIT 1 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 are 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/Pitkin 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 state or federal definitions or distinctions are not 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; aerial 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 operations 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, 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.
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2. Affiliated Airline. Any Air Transportation Company that: (1) is a parent or subsidiary of an Airline, a subsidiary of the parent of an Airline or otherwise under common control with an Airline; (2) shares an International Air Transport Association (IATA) code with an Airline at the Airport; or (3) otherwise operates under essentially the same trade name as an Airline or its parent or subsidiary at the Airport or uses essentially the same livery as an Airline or its parent or subsidiary; provided that no “major” airline, as such term is defined by the FAA, shall be classified as an Affiliated Airline of another “major” airline unless either clause (1) or (3) above defines the relationship between such airlines at the Airport. Airlines must designate in writing to the County any Air Transportation Company that will be an Affiliated Airline of that Airline at the Airport. Airlines must also designate in writing to the County the termination of such Affiliated Airline status of an Air Transportation Company. Airlines are to be billed for Affiliated Airline’s activity at the Airport by the County and the Airlines shall be obligated to serve as a financial guarantor for all rentals, fees, and charges incurred by any Affiliated Airline of an Airline at the Airport when acting on behalf of such Airline. An Airline shall be responsible for any and all unpaid rentals, fees, and charges of any such Affiliated Airline while such Affiliated Airline operates at the Airport as an Affiliated Airline of said Airline; provided however, an Airline shall only be responsible for such payments as relate to any terminated Affiliated Airline’s operations before such termination as an Affiliated Airline of the Airline took effect and solely in connection with the operations of the Affiliate on behalf of said Airline. Termination as an Affiliated Airline of an Airline will not occur until Airline notifies the County in writing and such termination will be effective as of the date of such notification.
3. Airline. The Air Transportation Company executing this Agreement.
4. Air Transportation Company. A Commercial Aeronautical Operator holding an operating certificate under Federal Aviation Regulation Part 121 or Part 135 and operating under a published schedule, pursuant to a certificate of public necessity at the Airport.
5. 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 and Use Agreement 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.
6. Airport. The Aspen/Pitkin County Airport (Sardy Field), Aspen, CO (ASE).
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7. 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.
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.
8. 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 or Common Use Areas. Those areas designated for use in common by certain classifications of Airport lessees, licensees and permittees; consisting of: lobbies/passenger waiting areas; circulation areas; public restrooms; corridors/ramps; pedestrian accessways, 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.
b. Exclusive Areas. Those areas designed for exclusive use, to the exclusion of others, by lessees or licensees. Exclusive areas may be shared by LLPs (Shared Use 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 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 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.
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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.
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 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 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 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 LLP, as provided in such Agreement.
f. Public Airfield Areas (a/k/a Public Airfield Facilities). Those areas designated for use by 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.
LLPs shall be 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 may be 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. all utility rooms, duct ways, janitorial rooms and closets, hallways, entrance-ways, public or common use lobbies and areas, public toilet areas, and other areas used for the operation, maintenance or security of the Passenger Terminal.
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h. Reserved Areas. All those areas not otherwise expressly designated by the County as defined hereinabove.
i. Shared Use Areas. Those areas of the Passenger Terminal, such as airline baggage make-up areas and the Secured Passenger Holdroom/Boarding Area areas, which may be assigned by the County to two or more LLPs.
9. Airport Cost Center. A direct or indirect cost center to be used in accounting for Airport revenues and expenses and for calculating and adjusting certain rents, fees, and other charges associated with various Airport areas or facilities as they now exist or as they may hereafter be reconstructed, modified, changed, or developed.
10. 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, specified in the Airport Security program, in which security measures specified in Title 49 of the Code of Federal Regulations are carried out.
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 parking 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. FFEI. 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- FBO facility.
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k. Groundside 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).
l. 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.
q. 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.
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.
11. Airport Rescue and Fire-Fighting. See ARFF, above.
12. 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
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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).
13. 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 at the Airport.
14. Airline Designations.
a. 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, Passenger Terminal, and associated land areas and facilities pursuant to a written Agreement with the County.
b. Requesting Airline. An Airline that is qualified to request occupancy and use of the Passenger Terminal and associated land areas and facilities by having filed a complete application under the Airport's then-current Passenger Terminal Access and Space Allocation Policy.
c. Signatory Airline. An Airline that meets the following minimum requirements:
i. Has entered into a written Lease and Use Agreement with the County for the occupancy and use of the Airport, Passenger 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 sole 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.
15. Airport 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.
16. Airport LLPs or ALLPs. 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.
17. Business. The sale, offering for sale, or the furnishing of any commodity, article, facility or service.
18. Code of Federal Regulations or CFR. The codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal Government,
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including the FAA.
19. Commercial Aeronautical Operator. A Person or Business entity engaging in a Commercial Aeronautical Activity or Commercial Aeronautical Service as those terms are defined in Division II of this Title 10.
20. 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.).
21. 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.
22. 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.
23. 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.
24. Director of Aviation. The County Representative for purposes of operational and administrative decisions at the Airport.
25. 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.
26. 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.
27. 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.
28. 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 LLP and/or a decrease in the obligations of the LLP. An Equitable Adjustment is to be the minimum adjustment that is commercially reasonable to respond to the change in circumstances.
29. Exclusive Right. A power, privilege or other right excluding or declaring another from enjoying
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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.
30. FAA. Federal Aviation Administration, Department of Transportation, United States Government.
31. FAA Facilities. Those facilities leased, constructed, used or occupied by the FAA, including the FAA ATC Tower, ATCRBS Bank Building and related facilities.
32. FAA Grant Agreements. The written agreements between the County and the FAA, issued by the FAA and accepted by the County as conditions of receipt of federal airport redevelopment and development funding, that set forth certain contractual obligations of the County to FAA with regard to the planning, financing and operation of the Airport.
33. FAR. A Federal Aviation Regulation promulgated by the FAA.
34. 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.
35. 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).
36. Fueling Operation(s) The receipt, storage or delivery of Fuel for Aircraft at the Airport.
37. 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.
38. Handling Agreement. A written Agreement, approved in advance by the County, between a Signatory Airline and a Requesting Airline, 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.
39. Lease Year, License/Permit Year or Operations Year. A lease year or operations year,
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hereunder shall be as specified in an Airport Agreement or, if not specified, a calendar year commencing on January 1.
40. Passenger Terminal. The passenger terminal building and appending structures at the Airport.
41. 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.
42. 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.
43. 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.
44. 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.
45. 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.
46. AS-FBO Facility. A separate building containing separate aircraft hangars, staging and parking areas, and supporting administrative, reception and storage areas for the operation of S- FBOs.
47. Self-Fueling Operations. The conduct of Fueling operations by a Person for its own Aircraft, using its own equipment and by its own employees.
48. 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.
49. Specialized Fixed-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 FBO.
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).
50. Transportation Security Administration or TSA. The Office of Homeland Security and Transportation Security Administration, or their authorized successors.
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EXHIBIT 2 Aspen/Pitkin 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 (“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, on Airport LLP, with respect to the Premises, 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 Passenger Terminal (or additional space at the Passenger 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 area 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.
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.
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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 AIRLINE LEASED SPACE AMERICAN AIRLINES, INC.
3.1.1 Passenger Terminal.
3.1.1.1 Exclusive Areas: (0 sq. ft.) (Red)
a) Ticketing counter, Ancillary Administration, Passenger Service and Signage Areas
b) Passenger Ticketing Queuing Areas
c) Administration and Operations Areas
d) Passenger Service Podiums
e) Baggage Service Office
3.1.1.2 Preferential Use Areas: (0 sq. ft.) (Yellow)
a) Gate Podium, Ancillary Administration, Passenger Service, and Signage Areas (including counter shell and digital storage)
3.1.1.3 Shared Use Areas: (0 sq. ft.) (Blue)
a) Baggage Make-up Area (including baggage conveyor belt and access doors)
b) Baggage Cart Unloading Area
c) Secured Passenger Holdroom/Boarding Area
d) Baggage Tent
e) Arrival Baggage Carousel and Area (including baggage conveyor, ski/oversized baggage slide, and access doors)
3.1.1.4 Common Areas or Common Use Areas: Non-exclusive areas designated as "common areas" in and around the Passenger Terminal consisting of:
a) Motor vehicle access roads
b) Motor vehicle parking lots (public and employee)
c) Curb (for passenger/baggage loading/unloading)
d) Paved sidewalk/passenger loading/unloading
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e) Pedestrian accessways, doors and vestibules
f) Corridors/ramps Lobbies/passenger waiting areas
g) Public restrooms
h) Exterior landscaped/seating areas
i) Existing vacant FID cabinets if any
3.1.2 Airline Terminal SIDA
3.1.2.1 Shared Use Outdoor Area: ( sq. ft.) (Purple)
a) Baggage Make-up Area (including baggage conveyor belt and access doors)
b) Outdoor Covered Space.
c) Ground Service Equipment Staging Area.
3.1.2.2 Preferential Use 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 overnighting 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 be applicable to the Airline’s preferential right to use the Spaces.
PB0.5PA2.3 3.55.26.30.9ETDWAIT HERECABINETCABINET
3
STSOBINSEMPTY
BINSEMPTY
TABLE630
TABLE630 TABLE630CAT2ETDBLSAVSX-RAY6040 aTiX
X-RAY6040 aTiXWTMDCEIA
2WTMDCEIARTALLSHORT
LANE 2 LANE 1ADA GATE
RLX
X
X
X
X XXXX2,914 SQ. FEET 63 SQ. FEET 14,650 SQ. FEET1,200 SQ. FEET1,200 SQ. FEETTICKET LOBBYBREAK ROOMOFFICESHANDLINGOUTBOUND BAGGAGEHANDLINGOFFICES MECH.SCREENINGTSAPASSENGER WAITINGFOOD SERVICEGIFT SHOPINFOARRIVAL BAGGAGERENTAL CARSVESTIBULESTORAGEVESTIBULELAND SIDEAIR SIDEAMERICAN /DELTA CANOPYPROPOSED BAGGAGE TENTPROPOSED OFFICESTSAAIRLINE LEASED AREAPASSENGER WAITINGPASSENGER WAITINGCHARLESCUNNIFFEARCHITECTS COPYRIGHT CHARLES CUNNIFFE ARCHITECTSC610 EAST HYMAN AVE.ASPEN, CO 81611TEL: 970.925.5590FAX: 970.920.4557cunniffe.comSHEET NO.JOB NO.2/24/2020 8:18:19 AMA11.91916AMERICANASPEN AIRPORT TERMINAL233/249 AIRPORT RD.ASPEN, CO1AMERICAN AIRLINES SQUARE FOOTAGENORTHISSUE:DATE:LEASED SPACE 10/11/19LEASED SPACE 2/4/20 EXCLUSIVE USE INDOOR AREA PREFERENTIAL USE AREASHARED USE AREA (AMERICAN / DELTA / UNITED)SHARED USE OUTDOOR AREA -AMERICANSHARED USE OUTDOOR AREA -DELTAExhibit 3AAspen Pitkin County AirportAmerican Airlines, Inc.
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EXHIBIT 4 Aspen/Pitkin County Airport Airline Lease and Use Agreement RATE CALCULATIONS
1. Explanation of Rate Calculation Line Items. The following Line Items listed in Tables 4-1 and 4-2 are included in the calculation of Terminal Rental Rate and Landing Fee for each Rate Setting Period. Each Line Item in Tables 4-1 and 4-2 is identified by the corresponding letter set forth below.
Line Item A. Maintenance and Operating Expenses. This Line Item includes those expenses directly assignable to the Terminal or Airfield Cost Centers and those expenses associated with Maintenance and Operating of the Airport that are not directly assignable but are allocated to the Airport Cost Centers. Allocable Airfield Maintenance and Operation Expenses include both Airfield and ARFF Maintenance and Operating Expenses.
Line Item B. Debt Service. This Line Item includes Debt Service directly assignable to the Terminal or Airfield Cost Centers and Debt Service for areas other than the Direct Cost Centers but allocable to the Direct Cost Centers.
Line Item C. Amortization. This Line Item includes Amortization attributable to Amortized Capital Improvements in the Terminal or Airfield Cost Centers.
Line Item D. Small Capital Projects. This Line Item includes Non-amortized Capital Improvements attributable to the Terminal, BHS, Loading Bridge, or Airfield Cost Centers.
Line Item E. Total Requirement. The Total Requirement is the sum of Line Items A through Line-Item D. The Total Requirement is applicable to Terminal or Airfield Cost Centers. The Airfield Total Requirement is allocated between the Air Carrier Requirement and the General Aviation Requirement.
Line Item F. Credits. This Line Item identifies the Credits to the Total Requirement for Terminal or Airfield Cost Centers, if applicable.
Line Item G. Net Requirement. The Net Requirement equals Total Requirement minus Credits. The Airfield Net Requirement is allocated between the Air Carrier Net Requirement and the General Aviation Net Requirement based on the proportion of expenses allocable to each category.
Line Item H. Line-Item H in Tables 4-1 and 4-2 shall be defined as follows:
• Table 4-1: Total Terminal Usable Space. The term “Total Terminal Usable Space” in Table 4-1 means Total Airport Terminal Space less non-public storage, maintenance, mechanical/electrical/building systems, and airport administrative space.
• Table 4-2: Landed Weight. The “Landed Weight” in Table 4-2 refers to the
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Signatory Landed Weight and the General Aviation Landed Weight for purposes of calculating the Signatory Landing Fee and the General Aviation Landing Fee, respectively.
Line Item I. Line-Item I in Tables 4-1 and 4-2 shall be calculated as follows:
• Table 4-1: Terminal Rental Rate (Non-seasonal Interior). Calculated in Table 4-1 as (E) Total Requirement divided by (H) Total Terminal Usable Space.
• Table 4-2: Landing Fee (Non-Seasonal). Calculated in Table 4-2 as (G) Airfield Net Requirement divided by (H) Landed Weight.
Line Item J. Line-Item J in Tables 4-1 and 4-2 shall be calculated as follows:
• Table 4-1: Terminal Rental Rate (Non-seasonal Exterior). Calculated in Table 4-1 as Terminal Rental Rate (Non-seasonal Interior) multiplied by one-third.
Line Item K. Line-Item K in Tables 4-1 and 4-2 shall be calculated as follows:
• Table 4-1: Terminal Rental Rate (Seasonal Interior). Calculated in Table 4-1 as (I) Terminal Rental Rate (Non-seasonal Interior) multiplied by 1.4.
• Table 4-2: Landing Fee (Seasonal). Calculated in Table 4-2 as (I) Landing Fee (Non-Seasonal) multiplied by 1.4.
Line Item L. Line-Item L in Tables 4-1 and 4-2 shall be calculated as follows:
• Table 4-1: Terminal Rental Rate (Seasonal Exterior). Calculated in Table 4-1 as Terminal Rental Rate (Non-seasonal Exterior) multiplied by 1.4.
2. Calculation of Terminal Rental Rate and Landing Fee. The Terminal Rental Rate, and Landing Fee for each Rate Setting Period shall be calculated based on a compensatory methodology as set forth in this subsection.
A. Terminal Rental Rate. The methodology for calculating the Terminal Rental Rate is set forth in Table 4-1 below.
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Table 4-1 Terminal Rental Rate Calculation
Line Item
(See Section 1 above for
corresponding descriptions)
Maintenance and Operating Expenses A
Debt Service B
Amortization C
Small Capital Projects D
Terminal Total Requirement E=A+B+C+D
Total Terminal Usable Space (square feet) H
Terminal Rental Rate – Non-seasonal Interior
Space (per square foot) I=E/H
Terminal Rental Rate – Non-seasonal Exterior
Space (per square foot) J=I(1/3)
Terminal Rental Rate – Seasonal Interior Space
(per square foot) K=I(1.4)
Terminal Rental Rate – Seasonal Exterior Space
(per square foot) L=J(1.4)
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B. Landing Fee. The Landing Fee is set forth Setting Period shall be calculated on a residual rate setting methodology as set forth in this subsection as set forth in in Table 4-2 below. The Airfield Total Requirement is allocated between the Air Carrier Requirement and the General Aviation Requirement based on the proportion of expenses allocable to each category.
Table D-5. Landing Fee Calculation
Line Item (See Section 1 above for corresponding descriptions)
Maintenance and Operating Expenses A
Debt Service B
Amortization C
Small Capital Projects D
Total Airfield Requirement E=A+B+C+D
Less: Credits to Airfield Requirement F
Net Airfield Requirement G=E-F
Landed Weight (thousand-pound units) H
Landing Fee (per thousand-pound units) I=G/H
Landing Fee (Seasonal) K=I(1.4)
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2022 RATES AND CHARGES
4.1 Rents, Fees and Charges:
4.1.1 Use of Terminal Passenger Facilities
4.1.1.1 Terminal Rental Rate (Non-seasonal, per square foot)
$98.13 (Interior) $32.71 (Exterior)
4.1.1.2 Terminal Rental Rate (Seasonal, per square foot)
$137.38 (Interior) $45.79 (Exterior)
4.1.1.3 Shared Use Areas: allocated monthly at 20% split between/among Airlines equally and 80% split between/among Airlines according to their respective proportion of enplaned passengers except the Shared Use Exterior Area shared by American and Delta which shall be split equally among both Airlines.
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 $8.24 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 $11.53 per 1,000 lbs. 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.
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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 that LLP shall have the following elements, consistent with federal law, the County’s statutory and contractual obligations to the Federal Aviation Administration, and Title X of the County Code:
1. Air Pollution. LLP shall take the following steps to reduce particulates and emissions (including, without limitation, CO, CO² 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. LLP 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
b. Allowed hours of operation, as provided in Title X
4. Solid Waste Management. LLP 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
3) Purchase of recyclable material
4) Recycling of all recyclable materials
b. Handling, storage and disposal of hazardous materials
5. Fuel and Energy Conservation. LLP 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
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c. Avoidance of fuel transfer and storage loss
d. Limitation on aircraft idling, as provided in Title X
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.g., 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:
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EXHIBIT 6 Aspen/Pitkin 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 Passenger Terminal consist of: the foundation, bearing walls, roof, and exterior surfaces (except glass in Airline Premises).
The service elements of the Passenger Terminal consist of: water and sewer service, including plumbing fixtures; electrical service, including lighting; and heat and ventilation (all to the boundary of LLP's Premises).
The common use and non-exclusive areas of and relating to the Passenger Terminal consist of: lobbies/passenger waiting areas; public restrooms; corridors/ramps; pedestrian accessways, 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 LLP's occupancy and use of the Premises hereunder, the LLP 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.
"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/Pitkin County Airport Airline Lease and Use Agreement COUNTY LICENSE/PERMIT MINIMUM INSURANCE REQUIREMENTS:
1. Forms, limits, deductibles, and endorsements.
Statutory Worker's Compensation: Colorado statutory minimums and Employers Liability insurance with limits of no less than $1,000,000 per accident for bodily injury or disease. Where allowed, a Waiver of Subrogation in favor of Aspen/Pitkin County Airport will apply.
a. 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:
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: Set at a level common to airlines similar in size to Lessee.
3) Endorsements:
X Comprehensive Form (All risks)
X Premises/Operations
X Products/Completed Operations
X Contractual (Hold Harmless Coverage)
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X Independent Contractors and Subcontractors**
X Personal Injury
**Airline agrees to require that any contractor/subcontractor enlisted by Airline at the Aspen/Pitkin County Airport list “Pitkin County”, Aspen/Pitkin County Airport, and its officers, employees, and elected officials as additional insureds “as their interests may appear" on its Certificate of Insurance and that these contractors/subcontractors will be obligated to provide the same insurances as outlined herein.
b. Property Insurance
1) Building Contents: Replacement Value
c. 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
d. Special Coverages (limits, conditions, deductibles, and endorsements to be determined by separate agreements of County and Permittee):
X (a) Any coverage required by lenders
X (b) Performance Bond
Airline will list Pitkin County, Aspen/Pitkin County Airport, and its officers, employees, and elected officials as Additional Insureds on the certificate of insurance as their interests may appear.
2. Certificates of Insurance. Certificates of Insurance in a form acceptable to the County, and copies of related endorsements, shall be filed with the County (through the Director of Aviation and to the Department of Risk Management) no later than ten (10) calendar days prior to commencement of operations at, to or from the Airport, and within 30 days upon renewal or replacement of any policy. Failure to file or maintain acceptable Certificates of Insurance with the County is agreed to be a material breach of any lease, license or permit and grounds for termination thereof.
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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.
Include a Separation of Insureds Clause (Cross Liability).