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HomeMy WebLinkAboutbocc.ord.035.2003 AN ORDINANCE OF TIlE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO AUTtlORIZING A LICENSE AND USE AGREEMENT FOR ASPEN/PITKIN COUNTY AIRPORT AUTOMATIC TELLER MACHINE (ATM) CONCESSION BETWEEN TIlE COUNTY AND ASPEN BANKING SERVICES Ordinance # ~ ~'~ Series of 2003 RECITALS 1. Pitkin County, a Colorado home-rule County, is Ihe owner, sponsor and operator of the Aspen/Pitkin County Airport (Sardy Field), located in the vicinity of Aspen, Colorado, and has the authority to regulate commercial activities and to lease and license space at the Airport. Pursuant to, inter alia, 1973 C.R.S. 41-4-101 et seq., 30- 35-202, Title 10 of the Pitkin County Code, and Section 8.7 of the Pitkin County Home Rule Charter; and 2. The Aspen/Pitkin County Airport has conducted an informal request for proposals for ATM concession space(s) in the terminal for a term commencing on November 1, 2003, and terminating on October 31, 2005. The County may desire to extend the term for an additional two one-year terms if the Licensee's performance and services are satisfactory; 3. One proposal by the current ATM provider was submitted on September 15, 2003; and 4. On the recommendation of staff and after a public hearing, the BOCC finds that the adoption of a License and Use Agreement for the referenced occupancy and use of Airport property with Aspen Banking Services is in the best interest of the County; NOW, THEREFORE, BE IT ORDAINED BY TIlE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, THAT: Section 1 The License and Use Agreement between Pitkin County and Aspen Banking Services is hereby approved and adopted to its terms and conditions. The Chairman (or Vice-Chair Person) of the Board of County Commissioners is hereby authorized and directed to execute on behalf of the County this Ordinance and the subject document(s) to accomplish the transactions that have been approved by the County Manager and County Attorney. Sect on 2 That this Ordinance is effective 30 days after final publication. INTRODUCED, FIRST READ, AND SET FOR PUBLIC tIEARING BY THE BOARD AT ITS REGULAR MEETING ON THE 8Ttl DAY OF OCTOBER 2003. PUBLIStlED, INCLUDING NOTICE OF PUBLIC tlEARING, IN TIlE ASPEN TIMES ON TIlE 11TH · DAY OF OCTOBER 2003. APPROVED AND ADOPTED. A~FTER SECOND ,RRSDING: (OR SUBSEQUENT READING) AND PUBLIC HEARING ON TtIE ~ ~ ~ DAY OF :fZ/~.2'~.~,~ . 2003. ! ! .tx PUBLISHED, FINAL PUBLIC NOTICE, IN THE ASPEN TIMES ON TtIE. ~ I _ ~ \/'~-~-~,~.., 2003. DAY OF BOARD OF COUNTY COMMISSIONERS Jeanett~ Jones, / glerk and Rec6t er Chairman Deput~ ~(~ck }latheld~/ - / /.../~.~.... ~ Date Date APPROVED AS TO FORM: MANAGER APPROVAL: Hilary Fle. tc~qr Smith, -- County Attorney County Manager RECOMMENDED FOR APPROVAL: .'~;; ' c.; -, . ' ':,} :' ,: i: P.E ....... -- IwoodTA ...... ~) ~..; Director of Aviation t ......... ~... I ::': _- LICENSE AND USE AGREEMENT AUTOMATIC TELLER MACHINE (ATM) CONCESSION THIS LICENSE AND USE AGREEMENT made as of November 1, 2003, is by and between the Board of County Commissioners of Pitkin County, Colorado, a Colorado home- rule county ("County") and the Aspen Banking Services, a Colorado Licensee (?Licensee"): WHEREAS, the County is the owner, sponsor, and operator of the Aspen/Pitkin County Airport (Sardy Field), located in Pitkin County in the vicinity of Aspen, Colorado (hereinafter the "Airport"), at which it has made available certain public airfield aviation terminal and facilities, certain areas for public use, certain areas for exclusive and non-exclusive commercial use subject to permit and certain reserved areas; and WHEREAS, the County has the authority to operate and manage the Airport, to regulate commercial activities at the Airport and to lease and license space thereon, pursuant to, inter alia, C.R.S. 30-11-107, 30-15-401, 30-35-201/202, 41-4-101 et seq., as amended, Title I0 of the Pitkin County Code, as amended, and Section 8.7 of the Pitkin County tlome Rule Charter; and WHEREAS, Licensee is engaged in the business of providing automatic/automated teller services/machines (ATM), in which service and business it desires to occupy and use some of the said location and facilities of the Airport for commercial purposes; and NOW, THEREFORE, for and in consideration of the mutual covenants, terms and conditions contained herein, the County and Licensee do mutually undertake and agree as follows: 1. ~ of License 1.I The County grants to Licensee, during the term of this License, the right to operate ATM in the Airport main air carrier terminal facilities, in the location and under the terms and conditions hereinafter described. This right shall be an exclusive right, subject only to present and future, State and Federal legislation, regulation and case law affecting the County's power to grant such exclusive rights. 1.2 Nothing herein shall be construed to prevent Licensee from proposing to enlarge and/or relocate its licensed area or from bidding/proposing on further permitted ATM-type concession/machine operations. 1.3 The County also grants the rights Of ingress and egress to the Location and the right to use the public areas of the terminal, so long as such rights do not interfere with the rights of other lessees, licensees or permittees of the terminal, the traveling public or the safe and efficient operation of the terminal. 2. · Term. The term of this License and Use Agreement shall commence at 6:00 a.m. MST on November 1, 2003, and expire at 10:00 p.m. MST on October 31, 2005, unless earlier renewed or terminated. 2.1 Renewal. The County may, if it so desires, provide the Licensee with an annual review of its performance under this Agreement to be delivered ninety (90) days prior to the anniversary date, that anniversary date being the date of Beneficial Occupancy. If no su.ch review indica!ing unsatisfactory performance is provided in writing within sixty (60) days prior to any anniversary date, Licensee's performance shall be deemed to have been satisfactory for the prior year. 2.2 At the option of the County and in mutual agreement with the Licensee and provided Licensee is not in breach and has performed in a satisfactory manner acceptable to the County, the County shall have the option to renew this Agreement under terms and agreements acceptable to the County for two (2) sequential additional one (1) year term. 2.3 The County's exercise of its right of renewal shall be exercised by delivery of . written notice to the Licensee thirty (30) days prior to the expiration of the term. 2.4 In the event the County decides not to renew this agreement a notice of termination shall be send to the Licensee sixty (60) days prior to the expiration of the term. However, if in the event County does not send such Notice of Termination to the Licensee this lack of notice shall not result in an automatic renewal of this agreement. 3. License Fees/Payments/Security 3.1 The fees and charges for the occupancy and use of the Location for the term of this License and Llse Agreement shall be due and payable, as follows: 3.1.1 The Licensee agrees to pay as compensation hereunder for the rights and privileges herein granted a monthly fee of $.30 per transaction that is processed through the ATM equipment described in this agreement. 3.1.2 No deduction shall be allowed for uncollected 'or uncollectible credit accounts. 3.1.3 The monthly payment as provided for in Section 3.1.1 or any partial months shall be considered delinquent if not received by the fifth (5th) day of the month due. If the fifth (Sth) day of the month is a Saturday, Sunday or legal County holiday, that payment shall be delinquent if not received on the next business day. The monthly payment shall be accompanied with a detail summary report that accu~tely lists the number of transactions processed through the ATM on a daily basis. The report must show the daily activity which will then be totaled for the month and multiplied by $.30 per transaction, which will be the monthly rental due as described in Section 3. I. 1. 3.1.4 The Licensee agrees to provide a security deposit in a form of an irrevocable Letter of Credit or a cash deposit in a form of a cashiers check, in the amount of $300.00. All payments shall be made to the Pitkin County Treasurer, 506 East Main Street, Suite 201, Aspen, Colorado, 81611. All delinquent payments shall accrue default interest on any unpaid and delinquent balance on the sixth (6th) day of every month so delinquent at the rate of two percent (2%) per month on the unpaid balance, compounded monthly; default interest shall be due and payable without demand with the next regular payment due. Amounts received shall be credited first to accrued interest and then to accrued and current payments due. 3.1.5 The County, annually, at the end of the term herein, unless expressly waived by the County, may conduct audits of Licensee's books of account and records, which audits shall be conducted upon reasonable notice to Licensee and during Licensee's normal weekday business hours. In performing such audits, County shall be entitled to review, and Licensee shall be obligated promptly to provide to the County upon demand therefor, all of the books of account and records that Licensee is obligated to maintain pursuant hereto, as well as other records, documents and files in Licensee's possession, custody or control during the term hereof that the County, or its auditor, determine, in their reasonable discretion, are useful, relevant or necessary to determine or verify the correct amount of reportable, includable and excludable revenues and gross receipts enjoyed by Licensee, and the correct amount of percentage rental owed by Licensee to the County, for the period involved. Should Licensee fail to maintain the books of account and records required to be maintained pursuant hereto, or should Licensee fail to deliver and permit County of its auditor to review Licensee's books and records, and other documents and files, as required by this subparagraph, said default is agreed by the parties to be a material breach of this License Agreement and Licensee agrees to pay, as liquidated damages for such breach, an additional amount equal to either fifty (50%) percent of the payments and charges due from Licensee hereunder for the most recent operations year for which such books of accounts and records are available to the County; provided, however, that Licensee shall only pay these damages for failure to keep required records if such requirements are reasonable in light of Licensee's business practices. If any audit shows percentage compensation and other fees and charges that should have been paid to the County by the Licensee pursuant to this Agreement were understated or underpaid for any period involved, Licensee shall, within thirty (30) days notice by County of any such deficiency, pay to the County the full amount underpaid, plus two percent (2%) interest per month, calculated as provided in paragraph 3.1.1, on such underpayment from the time said underpayment should have been paid to the time said underpayment is fully paid. If the amount of underpayment exceeds exactly three (3%) percent of the total percentage compensation that was owed by Licensee to the County for the annual audit period involved, Licensee, in addition to paying the County the underpayment owed and interest accrued thereon, shall within thirty (30) days notice by the County reimburse the County for the cost of the audit not to exceed Fifteen Hundred Dollars ($1,500.00). If the audit discloses overpayment of the percentage compensation paid to the County by Licensee, the County shall refund the amount of overpayment to Licensee.within thirty (30) days of said audit. The County shall hold all information obtained from any such audit in confidence, except as may be necessary to enforce the County's rights under this Agreement, except with respect to tax proceedings, and except with respect to any legal requi~:ements or Court Order to disclose said information. 4. Machine Area and IJse. The County shall provide the Licensee with the exclusive right to occupy and use the area(s) as is depicted on Exhibit "A", attached hereto and incorporated herein by reference, for the sole purpose of operating an Airport ATM concession, as set out herein. 5. I-fours of~. Licensee shall provide a machine that is adequately equipped, provisioned, and operational to serve the market demand seven (7) days per week throughout the year at those same hours that the commercial terminal building is open for business. 6. Level of Service. Machine services shall comply with all Federal, state and county regulations and shall be conducied in a courteous and helpful fashion. 6.1 The licensed area and machine in the terminal location shall be maintained in a clean, attractive and first-class manner by the Licensee. 6.2 All other commercial activities are prohibited unless such activities have the prior written approval of the Director of Aviation. 7. Quality of Service/Complaint Resolution/Performance Review by County. 7.1 Licensee acknowledges that the County has an interest in resolving any complaints arising from the Licensee's operations, both as Licensor and owner/operator of a · public Airport. Based on the foregoing, in the event that County shall receive any complaint arising from the Licensee's operations, the County shall immediately transmit such complaint to Licensee for resolution. 7.2 Within ten (10) business days of the receipt of written notification of a complaint, whether submitted by the County or by a patron to Licensee, Licensee shall provide to the Director of Aviation a written report of the complaint and its resolution or of Licensee's attempts at resolution. 7.3 In addition, Licensee shall submit a six month report to the Director of Aviation that describes all complaints received by Licensee and response made by Licensee to correct the deficiencies, including those complaints referred by County. The report shall be submitted within 30 days after the initial six months of the lease term and every six months thereafter if the lease is extended. Failure by Licensee to resolve a majority of any complaints to the satisfaction of the Director of Aviation shall be cause for termination hereof. The Director of Aviation shall promptly respond to complaints by the public or submitted by the Licensee. 7.4 Licensee's employees shall be safety-conscious, environmentally-sensitive, helpful, courteous, and dressed appropriately at all times, consistent with acceptable customer relations practices at tint-class U.S. resort and conference destination. 8. Reserved Rights of County. County reserves the following rights with respect to the Location and the uses and operations to be conducted thereon by Licensee. 8.1 County reserves the right to unimpeded access over and across the Location; provided that County shall not, in the exercise of this reserved right, unreasonably interfere with Licensee's use of the Location. County shall be entitled to enter upon the Location and into the buildings and other improvements thereon, in a reasonable time and manner consistent with the purpose of the entry and inspection, for the purpose of inspecting the same, ensuring compliance with the terms of this License, preventing waste or loss, responding to emergencies or complaints or enforcing any of County's rights hereunder. 8.2 County reserves, for the use and benefit of the public, the right of flight for the passage of aircraft in the air space above the surface of the Location, together with the fight to cause in and around said air space such noise as may be inherent in the operation of aircraft utilizing the Airport. 8.3 County reserves the right to protect the aerial approaches of the Airport against obstruction, ingluding the right to prohibit Licensee from erecting, or permitting to be erected or maintained, any building or other structure or obstruction on the Location which would, in the discretion of the County, limit the aeronautical usefulness of the Airport or constitute a hazard to aviation. 8.4 County reserves the right, during the time of war or national emergency, to lease the Airport or any part thereof, including the Location or any part thereof, to the United States Government for military purposes, and, in the event of such lease to the United States Government for military purposes, the provision of this License shall be suspended insofar as such provisions may be inconsistent with the provision of the lease to the United States Government. 8.5 County reserves the right to subordinate the provisions of this License, without prior notice to Licensee, to the provisions of any existing or future agreement between the County and the United States Government relative to the operation, maintenance or development of the Airport which has been or may be required as a condition precedent to the expenditure of Federal funds for the development, maintenance or operation of the Airport and, if such an agreement is entered into between the County and the United States Government, the provisions of this License shall be suspended and/or automatically modified insofar as such provisions are inconsistent with the provisions of the agreement with the United States Government. If, by reason of any agreement with the United States Government as aforesaid, it becomes necessary to modify, relocate or remove any improvements or other structures situated on the Location, the Licensee agrees to modify, relocate or remove any such improvements or structures as directed by County and County shall reimburse Licensee for the reasonable cost and expense thereof. 8.6 County reserves the right to direct, in its sole discretion, ali activities of the Licensee at the Airport in the event of an emergency. 8.7 County reserves the right to further plan, develop, improve, remodel and/or reconfigure the Airport, including the location, the terminal building, and existing vehicle and pedestrian traffic patterns, and parking lots as County deems appropriate without interference or hindrance by the Licensee, and County shall have no liability hereunder to Licensee by reason of any interruption to Licensee's operations on the Location occasioned by such County activities; provided, however, that County shall consult in advance with Licensee on such changes and if Licensee shall be unable to conduct reasonably normal seasonal business operations on the Location by reason of any such County activities, then the fees hereunder shall be equitably adjusted during the period of such intemsption. 8.8 The County reserves the right, in its sole discretion, to enter into agreements for the financing or re-financing of the airport and Licensee agrees to cooperate in providing information to prospective lenders and in providing estoppel certificates, if so requested. 8.9 County reserves the right to prohibit any commercial or non-commercial activity by any party on the Airport, which activity is not expressly permitted in writing. 8.10 County reserves the right to establish and enforce reasonable rules and regulations for the conduct of activities and uses permitted herein and also to promulgaie minimum standards for the conduct of commercial activities related hereto including, without limitation, minimum hours of operation if the County determines that the needs of the traveling public are not being met. 8.11 County reserves the right to refer all development proposals hereunder through the established County land-use application/review process, with costs and fees thereof to be paid by the proposed developer. 9. Acceptance of Location. The parties acknowledge that Licensee accepts the Location on an "as is" basis ..... 9.1 IJse of Location. Licensee shall 'have the exclusive right to use and occupy the Location solely for the purpose of maintaining an ATM concession location as defined herein. 10. Coordinating with other Airport Users. County and Licensee acknowledge that each has rights and obligations arising from various third-pa, rty agreements with other Airport users. County and Licensee agree to cooperate with each other to effectuate these third-party agreements, so long as such agreements are not illegal, impossible, or do not unreasonably interfere with Airport operations or the rights and obligations of the various parties. County and Licensee acknowledge their respective obligations as signatories under the following Agreements: ' 10.1 Those certain agreements for commercial ground transportation including taxis, limousines, and buses; 10.2 Those certain agreements for on, or off-airport commercial car rental companies; 10.3 Those certain agreements with the scheduled commercial airlines; 10.4 That certain Agreement between Pitkin County and the airport restaurant licensee; 10.5 That certain Agreement between Pitkin County and the airport gift shop licensee; 10.6 That certain Agreement between Pitkin County and the commercial terminal building advertisement/marketing licensee; 10.7 Such further and other agreements as the County may amend or enter into from time to time in the normal operation of the airport, provided there are no conflicts with the terms of this Agreement, and provided that Licensee shall, upon request, be provided with copies of any agreements that are connected to this obligation to cooperate, as set forth herein. 11. Compliance with Applicable Laws and Regulationr,. In connection with its occupancy and use of the Location and the conduct of its operation thereon, the Licensee shall: 11.1 Comply with all applicable laws, rules and regulations of the County of Pitkin, the State of Colorado, and the United States of America and any and all departments and agencies thereof, as the same way now exist or may be hereafter promulgated or amended from time to time. 11.2 Licensee agrees it will use the premises herein described in accordance with all rules and regulations adopted by the County, or its Director of Aviation, for the management, operation and control of the Airport, either promulgated by the County or said Director of Aviation on its or his own initiative or by or in compliance with regulations or actions or any Federal agency authorized to regulate interstate flights to and from said Airport. 11.3 Not discriminate against any person or class of persons by reason of race, color, sex, creed, religion, handicap or national origin in providing any services or in the use of any facilities provided for the public in any manner prohibited by Title 49, Code of Federal Regulations, Subtitle A, Part 21 of the Regulations of the Office of the Secretary of Transportation, and shall comply with the letter and spirit of the Colorado Anti-Discrimination Act of 1957, as amended, and any other laws and regulations respecting discrimination in unfair employment practices, and shall comply with such enforcement procedures as any governmental authority might demand that the County take for the purpose of complying with any such laws and regulations. 11.4 Pay promptly all taxes, excises, license fees and permit fees of whatever nature applicable to its operations hereunder and to take out and keep current all licenses, municipal, state or Federal, required for the conduct of its business or the operation or its equipment, and further agrees not to permit any of said taxes, excises or license fees to become delinquent. 11.5 Comply with the rules and practices as set forth in the current Pitkin County Airport Certification Manual, Airport Security Plan, and airport policy and/or procedures memoranda, as amended from time to time. Any fines assessed against the County by the FAA as a result of the Licensee's failure to comply with the provisions of this paragraph or other intentional or negligent acts or omissions of Licensee, its employees or agent will be paid promptly to the County by the Licensee. 11.6 Conduct its commercial activities in such a way as not to unreasonably interfere with other permitted users of the Airport in non-exclusive areas. County shall operate the Terminal in such a way as not to unreasonably interfere with Licensee's operations. 12. Environmental Quality Improvement Policy It is the policy of the Pitkin County Board of County Commissioners (BOCC) that Pitkin County plan for and continually reduce environmental degradation. It is the express'intention of the BOCC that all County lessees, licensees and permitte6s strictly comply with all existing and future environmental rules and regulations, and be sensitive to ali present and future environmental issues. The County gives notice that environmental compliance and sensitivity to environmental issues are and will be substantial factors in future performance reviews and procurements. 13. Aimort Master Plan. The parties acknowledge that the County has adopted an Airport Master Plan that provides for potential changes to the Location during the term hereof. Licensee shall cooperate in the implementation of said plan and will make no claim against the County for other than the unreasonable interference with its business activities caused by such implementation. Copies of the Airport Master Plan Update are available for inspection or for sale in the office of the Director of Aviation .... 14. Utilities. County shall provide electrical utilities normally associated with this specific concession. All telephone access, service, service costs and maintenance as required for this concession at the discretion of and as required by the Licensee shall be provided, and is the sole responsibility of the Licensee. 15. Maintenance and Repair of Location. 15.1 County shall, at County's own expense, keep the structure and exterior of the Air-carrier Terminal and the interior common areas in good condition and repair. The County shall be responsible for maintenance and repair of the roof, exterior walls, floor (excluding floor covering), structural components, heating, lighting, ventilation and electrical service (to .the point of connection); except if any damage thereto is caused by the negligence of Licensee, m which case Licensee shall be responsible for such repair. Licensee shall be responsible for maintenance and repair of all its trade fixtures and equipment; except if any damage thereto is caused by the negligence of County, in which case County shall be responsible for such repair. 15.2 The County shall provide normal custodial services (sweeping, mopping, trash collection, snow removal, etc.) to the common areas of main public terminal facilities. Licensee shall provide normal custodial services within its exclusive area and shall keep its exclusive areas clean, picked-up, orderly, in a safe condition and in accordance with tint-class maintenance practices and in common with other u~ers of Licensee's classification. 15.3 Licensee shall not cause nor, when advised thereof by the County, permit any dangerous or hazardous condition or nuisance to exist related to the use and occupancy granted herein. 15.4 Licensee shall not place any displays, signs, advertising or brochures upon the Location, except of such design, content and structure as shall be approved by the Director of Aviation, provided that such approval shall not be unreasonably withheld. Any sign permitted by County shall, in addition, at all times comply with applicable Airport policies, rules and regulations. 16. Licensee's Personal Property/Trademarks. All personal property, equipment, furnishings, decorations and trade fixtures placed upon the Location by Licensee shall be at Licensee's sole risk, and County shall not be liable for damage to or loss of such personal property or trade fixtures arising from the acts or omissions of any persons or from any causes whatsoever, except from the acts or omissions of County, its agents and employees. Licensee represents that it is (and will be for the entire term hereof) the owner of or fully authorized to use any and all services, processes, machines, articles, trademarks, logos, names or slogans to be used by it in its operations under or in any way connected with this Agreement. Licensee agrees to save and hold the County, its officers, employees, agents and representatives free and harmless of and from any loss, liability, expense, suit, demand or claim for damages in connection with any actual or alleged infringement of any patent trademark or copyright arising from any alleged or actual unfair competition or other similar claim arising out of the actions of Licensee under or in any way connected with this Agreement. 17. Destruction of Buildings and Other Improvements. If the buildings and other improvements located upon the Location shall be rendered untenantable by fire or other casualty, County shall, at County's cost (subject to and secondary to Licensee's obligation, if any, to provide fire and casualty insurance for the Location, as provided below), restore and repair the same to tenantable condition as speedily as possible and the rent shall be equitably adjusted, in whole or in part, during the period of such restoration and repair according to the portion of the buildings or other improvements so rendered untenantable; except that there shall be no abatement of rent if such fire or other casualty shall be caused by the intentional acts or negligent acts or omissions of Licensee, its agents, employees, invitees or licensees. Notwithstanding the foregoing, County shall not be obligated to expend in the restoration and repair of any buildings or other improvements so damaged by fire or other casualty in excess of the insurance proceeds received by County by reason thereof. If such insurance proceeds are insufficient to pay in full the costs of such restoration and repair, County shall not be obligated to undertake such restoration and repair unless Licensee shall agree to contribute to ' the costs of such restorations and repair in an amount equal to such deficiency. 18. .Indemnity and Insurance. Reference is made to Exhibit "B", Required Clauses. All insurance coverages shall be in the amount and coverages referred to in the attached Required Clauses. 18.1 To provide evidence of the required insurance coverages, copies of Certificates of Insurance in a form acceptable to the County shall be filed with the County (through the Director of Aviation) no later than ten (10) calendar days prior to commencement of operations affecting the County. Failure to file or maintain acceptable Certificates of Insurance with the County is .agreed to be a material breach of any contract and grounds for termination. These Certificates of Insurance shall contain a provision that coverage afforded under the policies will not be canceled or materially altered unless at least thirty (30) calendar days prior written notice by certified mail, return receipt requested (effective upon proper mailing), has been sent to the County (through the Director of Aviation). (For purposes of this provision, "materially altered" shall mean a change affecting the coverages required herein, including a change to policy limits as set out in the then-current policy declarations page.) 19. ~f Seizure. County shall not be liable in any respect to Licensee in the event of any seizure of all or any part of the Location, or the buildings and other improvements located thereon, by the United States of America or the State of Colorado in time of war or other national emergency; provided, that the fee provided hereunder shall abate during such period of seizure to the extent that such seizure shall interfere with Licensee's ability to conduct its business upon the Location.' 20. tloldover. If Licensee remains in possession and use of the Location after the expiration or termination of this term, the parties agree that Licensee's interest in the Location shall be automatically deemed to be a month-to-month License and Use Agreement; subject to the fees, charges, terms and conditions contained herein, or as new fees and charges may be established, amended or terminated by the Airport upon ten (10) days notice. Such new fees and charges which may be established during the term of the holdover will not exceed the highest bid amount, if bids are solicited and received, during the holdover. 21. .Assignment. Licensee shall not, voluntarily or by operation of law, assign, convey or transfer this License, any of Licensee's interest in this License or any rights and obligations hereunder; or sublieense the Location or any part thereof; or assign, convey or transfer a controlling interest in Licensee's business entity, without the prior written consent of County, which consent shall not be unreasonably withheld; provided, however, the Licensee shall be required to provide evidence satisfactory to County of the successful business experience and financial stability of Assignee/Transferee, and audit of and full payment of all costs, fees and charges to the date of assignment/conveyanee/transfer and proof of compliance of the assignment/conveyance/transfer with the County's Airport management goals and objectives, "including without limitation, small business goals, DBE goals, and environmental impact and quality of service." Nothing contained interests in its personal property, fixtures, or related assets, which security interests may be granted without prior consent of the County or the Director of Aviation. 22. No Third Parties. This License and Use Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom Licensee may assign this Agreement in accordance with the specific written permission of the Director of Aviation, and excepting any successor to the County, any rights to claim damages or to bring any suit, action or other proceeding against either the County or Licensee because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 23. Relationship of Parties. It is the intent and agreement of the County and the Licensee that they shall have the relationship respectively of Licensor/Licensee and Permittor/Permittee hereunder, and nothing contained herein shall be deemed or construed to constitute the parties as partners or joint venturers, and in no event shall County be liable for any loss which may result from the operations of Licensee upon the Location or for any indebtedness incurred by Licensee-in the operation of its business on the Location or for the claims of third parties against Licensee in the conduct of its business. In addition, County shall not be liable in any manner to the Licensee for any damages the Licensee may incur due to the inability of the County to deliver possession of the Location, or any part thereof; to the Licensee for reasons beyond the reasonable control of the County.. · 24. Non-Liability of County's Agents and Employee.% No official, agent, or employee of County shall be personally liable to Licensee in the event of any default or breach hereunder by County. 25. Termination. This Agreement may be terminated by the Licensee at the end of any one year term by providing written notice to Aspen/Pitkin County Airport in the manner provided in Paragraphs 27 & 28 below, and at least 90 days prior to the end of any one year term. 26. Default and Termination. If Licensee shall default in the payment of costs, fees or charges when due or in the timely remittance to County of any other amounts to be remitted to County under the provision of this License and shall not cure such monetary default within ten (10) days after written notice from County specifying such default; or if Licensee shall default in the performance of any other obligations or conditions to be performed by Licensee under the provisions of the License and shall not cure such other default within ten (10) days after written notice from County specifying such default (or within three (3) business days if the default is maintenance of a hazardous condition or failure to maintain and/or prove required insurance coverage); or in the event of the insolvency or bankruptcy of License; or in the event of an unapproved Coy County) assignment, transfer or conveyance of Licensee's interest as defined herein; then in any of such events if such defaults shall remain uncured after the cure period specified, County may thereafter terminate this License by giving written notice of termination of Licensee. If, however, the Licensee demonstrates good faith due diligence in curing such default as indicated herein, (with the exception of maintenance of a hazardous condition or failure to maintain and/or prove required insurance coverage and monetary default) the County shall grant additional reasonable time necessary to cure default not to exceed thirty (30) days. Upon termination of this License, County may reenter the Location and remove all persons and property therefrom, using all necessary rome to do so, and shall have such other rights and remedies as may be provided for by law or in equity, including damages. In the event of any such default by Licensee, County shall be entitled to recover its costs, including a reasonable attorney fee, in all proceedings in connection therewith. 27. Surrender of Location. Upon expiration or termination of this License, Licensee shall surrender the Location to County in good condition and repair, ordinary wear and usage excepted; and Licensee shall remove all personal property, trade fixtures, equipment or improvements then owned by Licensee and removable by prior agreement with County from the Location and shall repair any damage to the Location caused by such removal. Any personal property of Licensee, or anyone claiming under License, which shall remain upon the Location at the expiration or termination of this License shall be deemed to have been abandoned and may be retained by County as County's property or disposed of by County in such a manner as County sees fit without compensation to any party. 28. .Notices. All notices required or authorized to be given hereunder shall be in writing and shall be served upon the party entitled thereto by certified mail, return receipt requested, addressed to such party at its address appearing on the signature page of this License (with a copy delivered to its Airport Location), or at such other address as either party may so notify the other party of in writing. Any such notice shall be deemed to have been-received personally to the party entitled thereto or three (3) business days after the same has been properly deposited in the United States mail, with postage thereon fully prepaid, as aforesaid. 29. Representations of Licensee. Licensee represents and warrants to County as follows: 29.1 Licensee, and those individuals executing this License on behalf of Licensee, represent and warrant that they are familiar with Section 18-8-301, et seq. of the Colorado Revised Statutes (Bribery and Corrupt Influences) and Section 18-8401, et .seq. of the Colorado Revised Statutes (Abuse of Public Office) and that no violations of the provisions thereof are present. 29.2 Licensee, and those individuals executing this License on behalf of Licensee, represent and warrant that to the best of their knowledge no employee of Pitkin County has personal or beneficial interest whatsoever in the License or in the business to be conducted upon the Location by the Licensee. 30. General Provisions 30.1 This License and the Required Clauses, attached as Exhibit B, contain the entire agreement of the parties and there have been no promises, representations or agreements, either express or implied, except as expressly set forth herein. Any and all prior agreements or understanding between the parties are expressly agreed to have merged herein. 30.2 The Required Clauses, attached as Exhibit B, are fully incorporated in by this reference. 30.3 The provisions of this License shall be severable and the invalidity of any provision hereof shall not affect the ~;alidity of any other provision hereof. 30.4 This License may be modified or amended or supplemented only by an instrument in writing signed by the parties hereto. The County's representative for the administration of this Agreement shall be the Director of Aviation or his/her designee in writing; provided, however, that all matters affecting material terms of this Agreement, including term, fees and charges and use of Location by Licensee, shall only be modified or amended by a writing approved by a Resolution of the Board of County Commissioners at a duly-noticed public meeting. 30.5 The failure of either party hereto to exercise any right or remedy hereunder shall not be deemed a waiver thereof or a waiver of the right of exercise the same at any future time, or the waiver of any other right or remedy hereunder. No waiver by either party of any right or remedy hereunder shall be effective unless in writing signed by the party. 30.6 The parties agree that this Agreement was negotiated and drafted by the'mutual efforts of the parties hereto and agree that no legal presumption shall arise as a result of the identity of the drafter of this Agreement or any presumed unequal status arising therefrom. 30.7 If either party hereto shall institute legal proceedings to protect or enforce any of its rights or remedies hereunder, then the party prevailing in such legal proceedings shall be entitled to recover all of its costs in connection therewith, including a reasonable attorney's fee. · 30.8 This License shall be governed by and construed in accordance with the laws of the State of Colorado and venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 30.9 This License shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors and assigns. 30.10 This License shall be executed in duplicate originals, with one original to be held by each party. 31. _Authority of Licensee's Representative. As an inducement to the County to execute this agreement, the undersigned representative of Licensee represents that he/she is expressly authorized to execute this Agreement and to bind Licensee to the terms and conditions hereof and acknowledge that the County is relying on this representation, authorization and execution. COUNTY: ..LICENSEE: ASPEN PITI(IN COUNTY AIRPORT ASPEN BANKING SERVICES a-'m~ 1~. ElwOOd, A.~.E. By: Director of Aviation Alex Ortiz de Elguea Title: ~t9 Date Date County Manager Date ..~John Ely County Attorney · Date / AT~F ,FTST: ~~ ATTEST: Corporate ~ecretary · Pitk~Coun't3~ Clerk Seal ~ Licens.~ee's Address.' AsperffPitkin County Airport Aspen Banking Services 0233 East Airport Road, Suite A P.O. Box 9871 Aspen, Colorado 81611 Aspen, CO 81612 Attn: Alex Ortiz de Elguea Attachments: Exhibit A - ATM area location diagram Exhibit B - Required Clauses c:~atm.=ag reeme nt .doc ~.audill (~ust. afsor F. XHIBT B Revised: 2/26/02 REQUIRED CLAUSES For purposes of these Required Clauses, "Contractor" means Aspen Banking Services. Contractor shall be subject to the following provisions: 1. COMPLIANCE WITI-! PROCUREMENT CODE AND APPLICABLE STATE CON- TRACTING LAW A. The Contractor acknowledges that this Agreement is entered into subject to the requirements of the "Pitkin County Procurement Code," (Section 8.5 of the Pitkin County I lome Rule Charter, Ordinance # 00-18, approved April 26, 2000). As such, the Contractor agrees to comply with all requirements of said Procurement Code, and such requirements are incorporated herein by this reference. B. The Contractor shall immediately notify the County Manager in writing of any violation of said Code or statutes by the County's employees or agents, which violation(s) is known or should have been known by him, and failure to so notify the County of any violation(s) within five (5) days ofknowledge of such violations shall be considered a breach of this Agreement. Further, such failure to notify the County of violation of the Procurement Code or statutes within five (5) days of knowledge shall be deemed as a waiver of any action or defense that the Contractor may have against the County by reason of such violation of the Procurement Code or statutes. 2. WARRANTIES AGAINST CONTINGENT FEES, GRATUIIIES, KICKBACKS AND CONFLICT OF INTEREST A. Covenant Against Contingent Fees. The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. B. Gratuities Prohibited. The Contractor agrees not to give any employee or former employee of Pitkin County a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any pan of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefor. C. Gratuity means a payment, loan, subscription, advance deposit of money, services, or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is received. D. Kickbacks Prohibited. It shall be a breach of Agreement for any payment, gratuity, or offer of employment to be made by or on behalf of a subcontractor under a contract to the prime contractor or higher tier subcontractor or any pe~on associated therewith, as an inducement for thc award of a subcontract or order. The Contractor is prohibited from inducing, by any means, any person employed under this Agreement to give up any pan ofthe compensation to which he/she is otherwise entitled. 'The Contractor shall comply with all applicable local, 'state and federal "ant/- kickback'' statutes or regulations. E. Conflict of' Interest Prohibited. No official, officer, employee or nrpresentative of the County during the term of this Agreement or one (i) year thereafter shall have any interest, direct or indirect, in this Contract or the proceeds thereof. (Additional restrictions on present and former employees of County are found in Article 7 ofthe Procurement Code). F. Sub-Contract Clause. The prohibitions against contingent fees, gratuities, kickbacks and conflict of interest prescribed in this Agreement shall be made a condition of and conspicuously set forth in every sub-contract and solicitation therefor. G. Conspicuously means written in such special or distinctive format, print, or manner that a reasonable person against whom it is to operate ought to have noticed it. H. Remedies. In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and comqiet of interest, the County shall have the fight to: (1) Temdnate this Agreement without liability by the County; (2) Debar or suspend the offending parties from being a contractor or sub-contractor under County contracts; (3) Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Contractor, and (4) Recover such value from the other offending parties. 3. EQUAL EMPLOYMENT OPPORTUNITY AND DISADVANTAGED/MINORITY/WOMEN BUSINESS ENTERPRISES (DBF./MBE/WBE) A. Pursuant to local, state and/or federal anti-discrimination and atTu-mative action programs, contractor shall meet all applicable requirements with respect to employment and subcontracting in connection with Disadvantages/Minority/Women mdiv~duals and enterprises (DMF-/MBF_/WBE). B. In connection with the execution and administration of this Agreement, and any subcontracts, the Contractor shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, handicap or status as a veteran. C. In connection with the performance of this Agreement, the Contractor will cooperate with the County in meeting the County's commitments and goals with regard to the maximum utilization of disadvamaged, minority and women business enterprises and will use its best efforts to ensure that such business enterprises shall have the maximum practicable opportunity to compete for employment and/or subcontract work, if any, under this Agreement. D. The Contractor will furnish all necessary information and reports and will permit access to its books, records, and accounts by Pitkin County for purpose of investigation to aseeaain compliance with the.nondiscrimination/affirmative action provisions of any resultant contract. E. Employment Data and Affu'mative Action Plan. If requested, the Contractor agrees to submit on an Employment Data Form to be provided by the County, the data showing the utilization of disadvantaged persons, minorities and women by job category within its organization. Where the Contractor has fifty (50) or more employees or it is participating in con- tracts with the County, which exceed Fifty-Thonsand ($50,000.00) Dollars, an Affirmative Action Plan must be submitted to the County when requested by lhe County Attorney's Office within ten (10) days after selection. F. Noncompliance. In the event of the Contractofs noncompliance with the nondiscrimination/ affmnative action provisions of any resultant contract, Pitkin County shall impose such contract sanctions ns it may determine to be appropriate, including, but not limited to: (I) Withholding of payments under the Agreement until the Contractor complies, and/or (2) Cancellation, termination, or suspension ofthe Agreement, in whole or in part. 4. TERMINATION FOR DEFAULT OR FOR CONVENIENCE OF COUNTY A. In addition to the right of cancellation referenced in Paragraph 7 of the Agreement, the performance of work under the Agreement may be terminated by Pitkin County: (I) Whenever the Contractor shall default in performance of this Agreement in accordance with its terms, and fails to cure or show cause why such failure to perform should be excused within ten (I 0) days (or longer as the County may allow or shorter, but not less than three (3) days, for failure to provide proof of inaurance or maintenance of any dangerous condition) after hand-delivery, facsimile or mailing to the Contractor of a notice specifying the default as provided in Paragraph I I ofthe Agreement. The Contractor shall not be in default by reasons of any failure in performance of this Agreement in accordance with its terms if such failure arises out of causes beyond the control and without the fault or negligence of the Contractor. Such causes may include, but are not restricted to, acts of Gock natural disasters, strikes, or freight embargoes, but in every case the failure to perform must be beyond the control and without the fault or negligence of the Contractor. Upon request of the Contractor, the County shall ascertain the facts and failure, and, if the County shall determine' that any failure to perform constituted a valid commercial excuse, the performance shall be revised accordingly and notice of default withdrawn; or (2) Whenever for any reason and in its sole discretion the County shall determine that such termination is in its best interest and convenience. B. Notice of Termination. In the event of termination, the County shall deliver to the Contractor a written notice of termination, specifying the reasons therefore, and the effective date of such termination. The effective date shall not be earlier than the date of hand-delivery, facsimile or the date of mailing of the notice, as provided in Paragraph 11 of the Agreement. C. Termination Procedure. After the effective date of the notice ofcancellation, termination for default or for the convenience of the County, unless otherwise directed by the County, the Contractor shall: (1) Stop work under the Agreement on the date specified in the notice of termination. {2) Place no further orders for materials, services or facilities. (3) Terminate all orders and subcontractors to the extent that they relate to the performance of work te~'minated by the notice of termination. (4) W.i~ the approval Or ratification of thc County, settle all outstanding liabilities and all claims arising out of such termination on orders or subcontracts, the cost of which would be compensable or reimbursable in whole or in part in accordance with this Agreement. D. Termination Payment. After the effective date ora notice oftermination for the convenience .of th.e C.~. unty, the Contractor shall submit to the County his termination claim in the form ora final Invozce In accordance with the pmvisions in "Method of Payment," including costs incurred to the date of termination, and costs incurred because of termination, which termination costs shall not exceed 10% of the total amount of proposal; provided, however, that in the event of default by the Contractor, no extra costs incurred because of termination shall be paid to the Contractor and any costs paid shall not be a waiver of any claim, counterclaim or set.off by the County against the Contractor on account of any default. Such claim must be submitted promptly, but in no event later than thirty (30) days from the effective date of termination, unless one or more extensions are granted in writing by the County. Upon the Contra, toes failure to submit a claim in the time allowed, the County may review the information available to it and determine the amount due the Contractor, if any, and pay the Contractor the amount as determined. E. Termination Settlement. Subject to Paragraph 4.D., the Contractor and County may negotiate the whole or any part of the amount or amounts to be paid, if any, upon cancellation, termination for default or for the convenience of the Cou.n. ty. F. Remedies. The Contractor shall have the right of appeal from any determination made by the County under" Termination for Default or for Convenience of County;" except that if the Contractor has failed to submit his claim within the time provided in Paragraph 4.D., above, and has failed to properly request extension, he shall have no such right of appeal. In any case where the County has made a determination of the amount due under Paragraphs 4.D. or 4.E., above, the County shall pay the Contractor:. (i) the amount the County has determined if there is no right to appeal or if no timely appeal has been taken, or (2) the amount family determined on such appeal if an appeal has been taken. G. Method of Appeal. If the Contractor disagrees with the County's determination under Paragraphs 4.D. or 4.E., he can appeal this decision in writing to the County. Such appeal must be made within twenty (20) days ofreceipt in writing ofthe County's determination. The County shall have twenty (20) days in which to respond in writing to the appeal. The County's response shall be final and conclusive unless within thirty (30) days from the date of receipt of such response the Contractor submits the dispute to a court of competent jurisdiction or submits a demand for arbitration if required by the Contract Documents. 5. INTEGRATION AND MODIFICATION A. The Agreement constitutes the full and complete agreement ofthe parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, the Contractor understands that unless the contract is for goods or services of a value less than $50,000, no County official or employee, other than the Board of County Commissioners acting as a body at a Board meeting, has authority to enter into a contract or to modify the terms of the Agreement on behalf of the County. Any such contract or modification to this Agreement must be in writing and be executed by the parties hereto. B. With respect to change orders under the Agreement, the County and the Contractor shall · process and approve/disappmve requests for change orders as otherwise provided in this Agreement, subject to the requirements of the Procurement Code and the Finance Office. INDF_.MNrI3r A. The Contractor (including, by definition here and hereinaRer, its officials, employees, agents and representatives, subcontractors and suppliers), shall and hereby does release, discharge, indemnify and hold harmless the County of Pitkin and its officials, employees, agents and representatives from and against liability for any claim, demand, loss, damages, penalty, judgment, expenses, costs (including costs of investigation and defense), fees (including reasonable attorney and expert witness fees) or compensation in any form or kind whatsoever for any bodily injury, death, personal injury or property damage arising out of or in connection with any negligent act, intentional act, error or omission by the Contractor, and for any consequential liability alleged to accrue against the County on account of the Contractor's acts, errors 6r omissions; provided, how- ever, that such indemnity shall not be construed as an indemnity for bodily injury or property damage arising from the sole negligence of the County or its employees. B. The Contractor further shall investigate, process, respond to, adjust, provide defense for and defend, pay or settle all claims, demands, or lawsuits related he~'to 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. INSURANCE A. In whole or in part, the Contractor shall secure and maintain for the term of its contractual relationship with the County such insurance policies, from companies licensed in the State of Colorado, as will protect itself, the County and others as specified, from claims for bodily injuries, death, personal injury or property damage, which may arise out of or result from the Contractor's acts, errors or omissions. The following imurance coverage, at or above the limits indicated and including such endorsements as are indicated by an "X', are required: (1) Statutory Workers' Compensation: Colorado statutory minimums (2) Commercial General Liability- ISO 1998 Form or equivalent (With County named additional insured) Each Occurrence Limit 5;I ,000.000.00 General Aggregate Limit $2,000,000.00 Products/Completed Operatiom Aggregate Limit $2.000,000.00 Comprehensive Form (All risks) to include (place X by applicable provisions): __x_ Premises/operations Underground, Explosion & Collapse I-lazard ._.x_ Products/Completed Operations .__x_ Contractual Liability · Independent Contractors and Subcontractors .~x_ Broad Form Property Damage .~x_ Personal Injury (3) Business Auto Coverage: Combined Single Limit Liability (each accident) $!.000,000.00 Coverage to include (place X by applicable pmvisiuns): Any Auto All Owned Autos liked Autos Nun-Owned Autos Garage Liability (4) Special Coverages (check as appropriate and in.sen amount): (I) Performance Bond Labor and Material (2) Professional Errors and Omissions $1,000,000.00 (3) Airemfl Liability (4) Owners Protective (5) Builder's Risk (6) Boiler and Machinery mount ofprojeet (7) Loss of Use lusurance (8) Pollution Liability (9) Crime, including Employee Dishonesty Coverage, or Fidelity Bond PROOF OF INSURANCE SIIOULD BE SENT TO: Aspen/Pitkin County Airport C/O Edna Adeh 0233 East Airport Road, Suite A Aspen, CO 81611 Fax #: 970-920-5378 Phone #: 970-920-5384 x858 PROJECT NAME SHOULD BE IDENTIFIED B. To provide evidence of the required insurance coverage's, copies of Certificates of Insurance in a form acceptable to the County shall bo filed with the County (through the County Representative) no later than ten (I 0) calendar days prior to commencement of operations affecting the County. Failure to file or maintain acceptable Certificates of Insurance with the County is agreed to be a material breach of any contract and grounds for rescission or termination. These Cen~ficates oflnsurance shall contain a prows~on that coverage afforded under the policies will not be eanceled or materially altered unless at least thirty (30) calendar days prior written notice by certified mail, return receipt requested (effective upon proper mailing), has been sent to the County (through the County's Risk Department). {For purposes of this provision, "materially altered" shall mean a change affecting the covemge's required herein, including a change to policy limits as set out in the then-mn'rent policy declarations page). Simultaneously with the Certificates of Insurance, the Contractor shall file with the County's Risk Department (and promptly update, as necessary) a cenified statement as to claims pending against the required coverages, reserves established on account of such claims, defense costs expended and amounts remaining on policy limits. C. In addition, these Certificates of Insurance shall contain the following clauses: (1) The clause "other insurance provisions," in a policy in which the County of Pitkin .holds a Certificate, shall not apply to the County of Pitkin. (2) The insurance companies issuing the policy or policies hereunder shall have no recou~e against the County of Pitkin for payment of any premiums or for assessments under any form ofpoliey. (3) Any and all deductibles in the above-described insurance policies shall be assumed by and bc for the amount of, and at thc sole expense of the Contractor. (4) Location of operations shall be: "all operations and locations at which work for the referenced Project is being done." D. Certificates of Insurance for all renewal policies shall bc delivered to thc County's Representative at least fifteen (15) days prior to a policy's expiration date except for any policy expiring on thc expiration date of this Agreement or thereafter. E. The C6unty reserves the right to request and receive a copy of any policy and any policy endorsement. 8. EXEMPTIONS AND PREFERENCES A. All purchases of construction or building or any other materials for this Agreement shall not include Federal Excise Taxes or Colorado State or local sales or Use taxes. Pitkin County is exempt from such taxes under registration numbers 98-02624 and 84-78000-5K. B. Pursuant to state statute and to the extent permitted by law, Colorado labor shall be employed to perform the work to the extent of not less than eighty percent (80%) of each type or class of labor employed on such project; except for highway construction, which is subject to C.R.$. 43-2-208, which provides that all laborers shall be bona fide residents of Colorado with a preference to residents of the County where the work is performed. C. Preference is given, to the extent permitted by law, to: materials, supplies and provisions produced, manufactured or grown in Colorado, quality being at least equal to materials, supplies and provisions from outside the state; and to local (Roaring Fork Valley) services and labor of quality at least equal to non-local services and labor. 9. RECORDS Thc Contractor shall maintain comprehensive, complete and aocuratc-books, records, - and documents concerning its performance relating to this Agreement for a period of three (3) years after tlnal payment under thc Agreement and thc County shall have thc right within the three (3) year period to inspect and audit these books, records and documents, upon demand, in a reasonable manner and at reasonable times, for the purpose of determining, by accepted accounting and auditing standards, compliance with all .,rovisions of.~-- r' us~ ~'.grccmenl ann appllca~>le law. 10. THIRD PARTIES This Agrecment docs not and shall not bc deemed or construed to confer upon or grant to any third party or parties, except to panics to whom Contractor or County may assign this Agreement in accordance with the specific written pemussion, any rights to claim damages or to bring any suit, action or other proceeding against either the County or Contractor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 11. AGREEMENT MADE IN COLORADO Thc parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 12. ATI'ORNEY'S FEES In thc event that legal action i~ necessary to enforce any of thc provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's fees. 13. GOVERNMENTAL IMMUNITY Contractor agrees and understands that Pitkin County is relying on and does not waive, by any provision of this Agreement, the monetary limitations or terms (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by thc Colorado Governmental Immunity Act, 24-10-101, et. seq., C.R.S., as from time to time amended, or otherwise available to Pitkin County or any of its officers, agents or employees. Further, nothing in these Required Clause or the Agreement shall be construed or interpreted to require or provide for indemnification nfthe Contractor by the County for any/n jury to any person or any property damage whatsoever which is caused by the negligence or other misconduct of the County or its agent or employees. 14. CURRENT YEAR OBLIGATIONS The parties acknowledge and agree that any payments provided for hereunder or requirements for future appropriations shall constitute only currently budgeted expenditures of Pitkin County. Pitkin County's obligations under this Agreement are subject to Pitkin County's annual right to budget and appropriate the sums necessary to provide the services set forth herein. No provisions of the Agreement shall constitute a mandatory charge or requirement in any ensuing fiscal year beyond the then current fiscal year of Pitkin County. No provision of ibc Agreement shall be constr.u...ed or interpreted as creating a multiple-fiscal year di~ct or indirect debt or other financial obligation of Pitkin County within the meaning of any constitutional or statutory debt limitation. This Agreement shall not directly or indirectly obligate Pitkin County to make any payments beyond those appropriated for Pitkin County's then current fiscal year. No provisions ofthis Agreement shall be construed to pledge or create a lien on any class or source of Pitkin County's moneys, nor shall any provision of this agreement restrict the future issuance of Pitkin County's bonds or any obligations payable from any class or source of Pitkin County's money.