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HomeMy WebLinkAboutbocc.ord.025.2004AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS, OF PITKIN COUNTY, COLORADO APPROVING A LICENSE AND USE AGREEMENT BETWEEN PITK1N COUNTY AND PITK1N PORTAGE, 1NC. FOR THE PROVISION OF BAGGAGE AND "SKY CAP" SERVICES AT THE ASPEN/PITKIN COUNTY AIRPORT Ordinance # d~ ~'-~, Series of 2004 1. Pitkin County, a Colorado home-rule County, is the owner, sponsor and operator of the Aspen/Pitkin County Airport (Sardy Field), located in the vicinity of Aspen, Colorado, and has the authority to regulate commercial activities and to lease and license space at the Airport, pursuant to, inter alia, 1973 C.R.S. 41-4-101 et seq., 30-35-202, Title 10 of the Pitkin County Code, and Section 8.7.2 of the Pitkin County Home Rule Charter. 2. Pitkin County desires to enter into a License and Use Agreement with Pitkin Portage, Inc. for the purpose of providing baggage/port~r/skycap services at the AsperffPitkin County Airport for three (3) one year terms. 3. The County has determined that Pitkin Portage, Inc. is not in default for fees to the County and has been a satisfactory performer under the terms of the previous agreement, which expired on January 31, 2004 and was extended until May 31, 2004. NOW, I'}IEREFORE, be it ordained by the Board of County Commissioners of Pitkin County, Colorado that the Board does hereby authorize the Chair to sign on its behalf, the License and Use Agreement between Pitkin County and Pitldn Portage, Inc. for the purpose of providing baggage/porter/sky cap services at the Aspen/Pitkin County Airport. Section 1 The Contract Agreement between Pitkin County and Pitkin Portage, Inc., which is attached and is incorporated herein, is hereby approved and adopted according to its terms and conditions. Section 2 That the Chair (or Vice-Chair) of the Board of County commissioners is hereby authorized and directed to execute, on behalf of the County, this Ordinance and the License and Use Agreement. Section 3 That a public hearing on this Ordinance shall be held at BOCC's regular meeting on May 12, 2004, or as soon thereafter as the conduct of business will allow in the Pitkin County Courthouse, 1 st Floor Conference Room, 530 E. Main, Aspen, Colorado. INTRODUCED, FIRST READ, AND SET FOR SECOND READING AND PUBLIC HEARING BY THE BOARD AT THE REGULAR MEET1NG ON APRIL 28, 2004. PUBLISHED, INCLUDING NOTICE OF PUBLIC HEARING, IN THE ASPEN TIMES ON THE 1 ST DAY OF MAY 2004. APPROVED AND ADOPTED UPON SECOND READ1NG AND AFTER A DULY-NOTICED PUBLIC HEARING BY A MAJORITY OF THE BOARD AT THE REGULAR MEETING ON THE /~1~g-' DAYOF ~'~ fft~' ,2004. .PUBLISHED, AFTER ADOPTION IN THE ASPEN TIMES ON THE ~'t'~J DAY OF ~ O.,4.~ ,2004. BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO Dorothea Farris ' Date Chairperson APPROVED AS TO FORM: County Attorney ST: ette Jones ~uty Clerk and :order Date MANAGER APPROVAL: Hilary F~l~u~her Smith' Date County Manager APPROVED AS TO CONTENT: J~.~lwood -- [ Da{e Director of Aviation LICENSE AND USE AGREEMENT AIRPORT "SKYCAP" AND BAGGAGE HANDLING SERVICES PITKIN PORTAGE, INC. 2004 ~ 2005 THIS LICENSE AND USE AGREEMENT made as of June 1, 2004, is by and between the Board of County Commissioners of Pitkin County, Colorado, a Colorado home-rule County ("County") and Pitkin Portage, Inc., A Colorado Corporation ("Licensee"): A. RECITALS 1. 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 2. 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-I 1-107, 30-35-201/202, 41-4-101 et seq., as amended, Title 10 of the Pitkin County Code, as amended, and Section 8.7.2 of the Pitkin County Home Rule Charter; and 3. Licensee is in the business of providing baggage handling and "skycap" and curb-side baggage check-in services to airline passengers at the Airport, in which service and business it desires to occupy and use some of the space and facilities of the Airport for commercial purposes; 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: B. GRANTING OF LICENSE. 1. The County grants to Licensee, during the term of this License, the non-exclusive right to operate within the Airport public terminal building and in the immediate vicinity thereto (outside the FAA security perimeter) (the "Location"), a baggage service operation, and curb-side baggage check-in, the services of which shall be available to any public commercial airline operator and/or its passengers doing business at the Airport public terminal according to the terms and conditions set forth herein. 2. In relation to this Agreement, 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.. C. TERM. The term of this License shall commence on the 1 st day of June 2004 and shall expire on the 31 st day of May 2005 with two sequential additional one (1) year renewal terms. Each renewal term will be renewed automatically. 2.4 In the event either party decide not to renew this' agreement a notice of termination shall be send 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 result in an automatic renewal of this agreement. D. PERMITTED SERVICES. The Licensee may maintain in operation the following services: 1. Baggage Porter Services, sometimes known as "skycap" services, may be furnished to any airline or airline passenger agreeing to allow or contracting for the service from the Licensee, which service shall be provided as the Licensee agrees and as directed by the airline for purpose of transporting baggage of the airlines' customers and facilitating other porter-type services to the public using the Airport, all within and in the vicinity of the public terminal building at the Airport. 2. Baggage Storage and Delivery Service may be furnished to any or all airlines agreeing to allow and/or contracting for the service, which service shall be provided for such baggage storage services as the Licensee agrees to provide and as directed by the airline and the delivery of baggage to its passengers. In addition, the Licensee shall be permitted to negotiate and contract with individual passengers of the respective airlines occupying the Air Terminal at the Airport at fair and reasonable rates for the storage and/or delivery of baggage and other items of personal property to such passengers off the Airport premises; provided, however, in no event shall a charge for such delivery be made to both the airline and passenger (unless a shared charge is disclosed in advance to both parties), and provided further that no such delivery service be provided or made which infringes upon any authority under Certificate of Public Convenience and Necessity issued by the Colorado Public Utilities Commission. 3. Curb-side Baggage Check-in may be furnished to any or all airlines agreeing to contract for the service. E. CHARACTER OF OPERATION. The permitted services shall be provided with the following limitations: 1. The Licensee agrees to conduct the operations herein permitted for the accommodation of the public using the Airport and without interfering with the lawful use of Airport property by other lessees, licensees, permittees, and invitees. 2. The Licensee shall employ, train and supervise an adequate number of workers to properly conduct the operations herein described. Workers shall be uniformed in a neat and clean company uniform and in accordance with the functions being performed. Such uniforms shall be as approved by the Director of Aviation. No hawking, loud noise, offensive display or personal solicitation shall be permitted. Employees/subcontractors of the Licensee shall be courteous and polite and under no cimumstances importune passengers in offering their porter services, solicit gratuities (except as set forth below), or comment on a traveler's exercise of his/her right to offer no gratuity. Licensee employees/subcontractors shall receive formal training in public relations and conflict resolution at least annually. The County reserves the right to insist that the Licensee dismiss any of its employees/subcontractors where there exists evidence of misconduct in the performance of duties under the letter and spirit of this agreement. Employees/subcontractors of the Licensee will not under any circumstances deliver baggage to any vehicle parked in a no parking zone, unless such delivery is with the express consent of the Airport Security Officer on duty at that time. 3. Except for deliveries of stored, delayed or lost baggage items of personal property from the Airport to its customers off of the Airport premises, permitted under Paragraph D2 above, no rates and/or charges for the services performed shall be charged to the public by the Licensee, although gratuities may be accepted. The Licensee may negotiate with a group of five (5) or more persons for porter service gratuities. -2- 4. The Licensee shall be required to provide the services at all times during the hours that the Airport Terminal is open. The Licensee shall, at its reasonable discretion and with AsperffPitkin County Airport's approval adjust those hours based on the season and flights. 5. The Licensee or its employees/subcontractors may offer information as to modes and schedules of ground transportation available to the public, but shall not make recommendations nor offer unsolicited information as to rotes charged by the respective ground transportation entities operating at the Airport or, under any circumstances, make any comment solicited or unsolicited, respecting the quality of public or private ground transportation or of any entity engaged therein. 6. All equipment owned by or used in the operation shall, when not in use, be maintained out of the traffic ways, and all equipment owned by the Licensee shall be kept in good repair and well enough padded so as not to cause damage to the Air Terminal building or injury to persons in and around the building. All operations by the Licensee shall be conducted in such a manner so as to keep the traffic ways at the Airport open, unobstructed, passable, clean and safe. 7. No advertising matter shall be posted upon Airport premises unless specifically authorized in writing by the Director of Aviation. 8. All trash or debris which may be accumulated in the performance of the operations hereunder shall be deposited in trash receptacles provided by the County, in a timely fashion. 9. The Licensee shall not offer for sale any type of merchandise or service or engage in any commercial activity not specifically permitted herein. 10. The Licensee further agrees not to use any part of the Airport for other unlawful purposes whatsoever and agrees not to commit or permit any nuisance fi.om or upon the Airport. F. COMPENSATION. As compensation to County, Licensee shall pay to County the sum of Four Thousand Two Hundred Dollars and No Cents ($4,200.00) for the first year covered by this License and Use Agreement (June 1, 2004 to May 31, 2005) in twelve equal installments which are paid in arrears of Three Hundred Fifty Dollars and No Cents ($350.00) per month due by the 25th day of the billing month, and will be considered late if payment is received after the 30th day of the billing month. For the first renewal year covered by this Agreement (June 1, 2005 to May 31, 2006), the compensation hereunder shall be increased by 4% to Four Thousand Three Hundred Sixty Eight Dollars and No Cents ($4,368.00) divided in twelve equal installments of Three Hundred Sixty Four Dollars and No Cents ($364.00). For the second renewal term of the Agreement (June 1, 2006 to May 31, 2007) the compensation shall be increased by another 4% to Four Thousand Five Hundred Forty Three Dollars and No Cents ($4,543.00) (rounded up) divided in twelve equal installments of Three Hundred Seventy Nine Dollars and No Cents ($379.00) (rounded up). Either Licensee and or the County reserve the option to discuss and renegotiate these amounts 30 days before each renewal year goes into effect. G. PAYMENTS. All payments shall be considered delinquent if not received by the day due in the office of the Pitkin County Treasurer, 506 W. Main Street, Suite 201, Aspen, CO 81611. If the day due is Saturday, Sunday or legal holiday, the payment shall be due on the next previous business day. All delinquent payments shall accrue default interest on any unpaid and delinquent balance on the first day of every -3- month so delinquent at the rate of two percent (2%) on the unpaid balance, compounded monthly; late charges and interest shall be due and payable without dennand. H. PERFORMANCE AND PAYMENT SECURITY. Promptly after execution of this Agreement and prior to actual occupancy and use of the Premises, Lessee shall deliver to County (and thereafter maintain current for the entire term of this Agreement), certain deposits or instruments, as security for the full and timely performance and payment by Lessee of all of its obligations hereunder, including without limitation, the payment of rent as follows: 1. Types of Security. Lessee shall deliver a cash Security Deposit of SNone, equal to three monthly rent installments. It is expressly agreed that such amounts are not an advance payment of rental or measure of Lessor's damages in case of default by Lessee. Lessor shall have the right to commingle any cash amounts received hereunder with its other funds. 2. County Use of Required Security. If at any time during the Term hereof, any of the rent shall be overdue and unpaid, or any other sum payable by Lessee to Lessor hereunder shall be overdue and unpaid, the Lessor may, at its option, and upon Notice to Lessee, appropriate and apply any portion of the Security Deposit and Performance and Payment Surety to the payment of any such overdue amount. In the event of the failure of Lessee to keep and perform any of the terms, covenants and conditions of this Lease, the Lessor may, at its option and upon Notice to Lessee (and its surety, if applicable) appropriate and apply the Security deposit and Performance and Payment Surety, or so much thereof as may be necessary, to compensate Lessor for advances, expenses, loss or damage sustained or suffered by Lessor due to such breach on the part of the Lessee. Should the Security Deposit and Performance and Payment Surety or any portion thereof be appropriated and applied by Lessor for the payment of overdue rental or other sums due and payable by Lessee hereunder, or for a breach on the part of Lessee, the Lessee shall, within five (5) days after the written demand of Lessor, forthwith remit to Lessee a sufficient amount in cash to restore the Security Deposit and Performance and Payment Surety to the original sum deposited or required. 3. County Return/Release of Required Surety. No later than sixty (60) days after the expiration or termination of this Lease, Lessor shall: if Lessee has complied with all of the terms, covenants and conditions of this Lease and has paid all of the rental herein provided for, and all other sums payable to Lessee to lessee hereunder, then return the Security Deposit and/or release the surety; or if Lessee has not complied with such obligations, provide written notice to Lessee and/or its surety of Lessor's claims against said amounts and return/release the remainder. 4. Requirements Waived. These requirements may be waived in writing by the County, in its sole discretion, for a Lessee with a satisfactory payment or performance history; provided, however, that if the Airport issues a Notice of Non-Compliance or Notice of Default involving one or more failures to timely pay any rent or charges hereunder, it may, as part of that Notice, as a material element of this Lease, require either the Security Deposit or this surety instrument or both to be delivered promptly as part of any cure of such Notice. I. QUALITY OF SERVICE/COMPLAINT RESOLUTION/PERFORMANCE REVIEW BV COUNTY. 1. The Licensee shall conduct its commercial operation hereunder in a manner consistent with the standards of first-class skycap, baggage storage, delivery services and curb-side baggage check- in at airports throughout the United States. Specifically, employees will dress appropriately and will not solicit tips. -4- 2. Licensee acknowledges that the County has an interest in resolving any complaints arising from the Licensee's operations, both as owner/operator of the Airport and as holder of police power and land-use authority within the County. Based on the foregoing, in the event that County shall receive any complaint arising from Licensee's operations, County shall immediately transmit such complaint to Licensee for resolution. Within five (5) business days of the receipt of the complaint, Licensee shall provide to the Airport Management a written report of the complaint and its resolution or of Licensee's attempts at resolution. Failure by Licensee to resolve a great majority of any complaints to the satisfaction of the Director of Aviation shall be grounds for termination of this Agreement. 3. At least once annually hereunder, Licensee shall be entitled, at its request, to a written evaluation of its performance under this Agreement from the Director of Aviation. This report shall contain specific areas in which performance has been unsatisfactory and specific standards for satisfactory performance. J. CANCELLATION AND TERMINATION, In the event that Licensee shall fail to perform, keep and observe any of the terms, covenants or conditions herein contained, on its part to be performed, the County may give the Licensee written notice to correct such condition or cure such default and, if any such condition or default shall continue for ten (10) days (three (3) days for nonpayment of fees and charges, failure to maintain required insurance or maintenance of an hazardous or dangerous condition) after notice of such default has been sent by County to the Licensee, pursuant to Section I, below, the County may, after the lapse of said period if such condition or default has not been completely cured or corrected, terminate this License and Use Agreement by ten (10) days' written notice. In the event the Licensee has undertaken action to correct such condition or cure such default, and if, in the reasonable discretion of the County, the same can be cured within a reasonable time and the cure is proceeding expeditiously and continuously, the Agreement shall not be canceled (except for nonpayment of fees or charges, failure to maintain required insurance or maintenance of a hazardous or dangerous condition, which defaults must be fully cured to avoid cancellation). Any cure or correction procedures not completed within the time periods herein specified, shall only be done pursuant to written Agreement between Licensee and County, which Agreement shall contain specific time limitations; if those cure time limitations are not met, no further cancellation notice hereunder shall be required. The Licensee may cancel this Agreement, and terminate its obligations (except those accrued prior to the date of termination) hereunder at any time, by thirty (30) days' written notice, upon or after the happening of any one of the following events: 1. Issuance by any court of competent jurisdiction of a permanent injunction in any way preventing or restraining the use of said Airport for purposes that would prevent all of the Licensee's operations; 2. The breach by the County of any of the covenants or agreements contained herein and the failure of the County to remedy such breach for a period of thirty (30) days after receipt of said written notice of the existence of such breach (in the event the County has undertaken actions to correct such condition or cure such default, the same can be cured and is proceeding expeditiously with the same, the Agreement shall not be canceled); 3. The inability of the Licensee to use the public airfield facilities continuing for a longer period that sixty (60) days due to earthquake or other casualty, or the total subordination of the rights to the public airfield. K. NOTICES. Ali Notices required or authorized to be given hereunder shall be in writing and shall be served upon the party entitled thereto either by certified mail, return receipt requested, addressed to such party at its address appearing on the signature page of this Agre6ment (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 Civic Procedure, as amended. Any such Notice shall be deemed to have been received two (2) business days after the same has been properly deposited in the United States mail, with postage thereon fully prepaid, as aforesaid, or on the date of personal service. L. COMPLIANCE WITH ALL LAWS AND REGULATIONS. The Licensee agrees not to use or permit the rights herein granted to be used for any purpose prohibited by the laws of the United States or the State of Colorado, the Resolutions of the County of Pitkin, including Airport Rules and regulations, or not authorized hereunder or in accordance herewith, and it further agrees that it will use the premises herein described in accordance with the rules and regulations adopted by the County for the management, operation and control of the Airport, either promulgated by the County or by the Director of Aviation on its own initiative or by or in compliance with regulations or actions of any Federal Agency authorized to regulate the Airport. The Licensee further agrees to submit any report or reports or information regarding its operations hereunder that the County or the Director of Aviation requests. M. TAXES, LICENSES. The Licensee covenants and agrees to pay promptly ail 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 of its equipment, and further agrees not to permit any of said taxes, excises or license fees to become delinquent. N. INDEMNITY AND INSURANCE. The required terms and conditions of indemnity and insurance provisions are within the contents ofthe attached eretoasExhiblt A ,ReqmredClauses, and incorporated by this reference. O. PROPOSED COUNTY TRAFFIC CIRCULATION SYSTEM/TERMINAL REMODEL/AIRPORT MASTER PLAN. The Licensee hereby agrees to cooperate in Airport planning, implementation, construction and revised operation, all of which may affect the Licensee's operations hereunder, and hereby waives, discharges and releases the County from any claim or damages arising from changes to the layout and operation of the Airport caused by such and other Airport planning, implementation, construction or revised operation. P. NO WAIVER. No waiver of default by the County of any of the terms, covenants or conditions hereof to be performed, kept and observed by the Licensee shall be construed as, or operate as, a waiver by the County of any subsequent default of any of the terms, covenants or conditions herein contained to be performed, kept and observed by the Licensee. Q. PREVENTION OF LIENS. The Licensee covenants and agrees not to permit any mechanic's or materialmen's or any other lien to become attached or to be foreclosed upon the Air Terminal, any of the equipment mentioned herein or improvements thereto or thereon, by reason of any work or labor performed or materials furnished by any mechanic or materialman. The Licensee agrees to furnish the Director of Aviation, upon request, duplicate receipts or other satisfactory evidence showing the prompt payment by it of any required Social Security, Unemployment Compensation and Worker's Compensation Insurance, all required licenses and all taxes. The Licensee further covenants and agrees to pay promptly when due all bills, debts and obligations incurred by it in connection with its operation of said business on the Airport, and not to permit the same to become delinquent and to suffer no lien, mortgage, judgment or execution to be filed against said equipment which will in any way impair the rights of the County under this Agreement. AGREEMENT SUBORDINATE TO AGREEMENTS WITH THE UNITED STATES. This Agreement is subject and subordinate to the terms, reservations, restrictions and conditions of any existing or future agreement between the County and the United States relative to the operation or maintenance of the Airport, the execution of which has been or may be required as a condition precedent of the expenditure of Federal funds for the development of said Airport. S. NO DISCRIMINATION - F.A.A. DIRECTIVES. The parties hereto covenant and agree that: 1. No person on the grounds of race, color or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subject to discrimination in the use of said facilities; 2. That in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subject to discrimination; 3. That the parties shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, part 21 - Nondiscrimination in Federally-assisted programs of the Department of Transportation & Effectuation of Title IV of the Civil Rights Act of 1964, and as said regulations may be amended. The Licensee assures that it will undertake an affirmative action program as required by 14 CFR part 152, Subpart E, to insure that no person shall on the grounds of race, creed, color, national origin or sex be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by this subpart. The Licensee assures that it will require that its covered sub-organizations provide assurances to the County that they similarly will undertake affirmative action programs and that they will require assurances from their sub-organizations, as required by 14 CFR, Part 152, Subpart E, to the same effect. This Agreement is subject to the requirements of the U.S. Depar'anent of Transportation's regulations, 49 CFR, Part 26, Subpart G. The concessionaire or contractor agrees that it will not discriminate against any business owner because of the owner's race, color, national origin, or sex in connection with the award or performance or any concession agreement, management contract, or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR, Part 26, Subpart G. -7- The concessionaire or contractor agrees to include the above statements in any subsequent concession agreement or contract Covered by 49 CFR, Part 26, Subpart G, that enters and cause those businesses to similarly include the statements in further agreements. T. PATENTS AND TRADEMARKS. The Licensee represents that it is the owner of or fully authorized to use any and all services, processes, machines, articles, marks, names or slogans used by it in its operations under or in any way connected with this Agreement. The Licensee agrees to save and hold the County, its officers, employees/subcontractors, agents and representatives free and harmless of and from any loss, liability, cost, expense, suit 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 operations of the Licensee under or in any way connected with this Agreement. U. ASSIGNMENT. The 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 fights and obligations hereunder; or sublicense 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, that Licensee shall be required to provide evidence satisfactory to County of the successful business experience and financial stability of Assignee/Transferee, 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." For purposes of this provision, transfer of majority control of the stock of the Licensee shall be considered an assignment of fights hereunder. V. AGREEMENT BINDING, This Agreement shall be binding on and extend to the successors and assigns of the respective parties hereto. W. 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. X. PARAGRAPH HEADINGS. Paragraph headings contained herein are for convenience in reference only and are not intended to define or limit the scope of any provisions of this Agreement. Y. AGREEMENT MADE IN COLORADO. This Agreement shall be deemed to have been made in and construed in accordance with the laws of the State of Colorado and venue is agreed to be exclusively in the Courts in and for Pitkin County, Colorado. -8 Z. NO PERSONAL LIABILITY. No officer, elected official or employee of the County shall be held personally liable under this Agreement or because of its execution or attempted execution. AA. WAIVER OF PRESUMPTION. This Agreement was negotiated, drafted and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of this Agreement. BB. INTEGRATION AND MODIFICATION. This Agreement constitutes the full and complete agreement of the parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, the Licensee understands that no County official or employee, other than the Board of County Commissioners acting as a body at a duly-noticed public meeting, has authority to enter into a contract or to modify the terms of this Contract on behalf of the County. Any such contract or modification to this Contract must be in writing and be executed by the parties hereto. CC. ATTORNEY'S FEES In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's fees. DD. RELATIONSHIP OF PARTIES, The Licensee represents that it is the exclusive agent for United Express to provide baggage- handling services to the Airline and its passengers and will remain so during the term of this Agreement. Complete, correct and current copies of all agreements between Pitkin Portage and United Express will be provided by the Company to the Director of Aviation and updated as necessary during the term of this Agreement. This Agreement covers use by the Company of "common areas" of the Terminal; the County acknowledges that the Company also has rights through United Express in the exclusive, preferential or shared exclusive areas of United Express, as those agreements may provide. Licensee may contract to be the exclusive agent of other qualified Airlines to provide similar services, but only upon the prior express written consent of County, which consent shall not be unreasonably withheld. The Licensee acknowledges that it did not participate in a competitive selection process to gain rights under this Agreement to conduct commercial activities on the Airport. The Licensee acknowledges the rights reserved by the County hereunder. EE. COUNTY RESERVATION OF RIGHTS. The County reserved the right to gram such other Airport leases, licenses, permits, and/or concessions that it deems, in the exercise of its discretion, may be necessary or desirable to the efficient or economical operations of the Airport, including, especially, such other rights to provide baggage porter (skycap) and Airline baggage-handling services. The County also reserves the right, at its sole -9- discretion, to cancel and terminate this Agreement, if and when it determines that it is necessary or desirable in the public interest to conduct a competitive procurement process concerning the provision of baggage porter (skycap) and Airline baggage service at the Airport for any reason including, without limitation, to restructure the contractual relationships of the parties or to expose such service to competition. Notice of Cancellation/Termination for the purposes of competitive procurement shall be given to the Company no less than thirty (30) days in advance of the date of the cancellation/termination; provided however, that if Airport management determines, in its sole discretion, that such cancellation/termination would disrupt service to the public during a high tourist season, the procurement may be deferred until the end of that season. RECOMMENDED FOR APPROVAL: County Manager ~ames P. Elwood,~.A.l~., Director of Aviation Date Date APPROVED AS TO FORM: County Attorney ~ Risk Management Date Date IN WITNESS WHEREOF, the Parties have executed this Agreement as follows: COUNTY LICENSEE The Board of County Commissioners Pitkin Portage, Inc. of Pitkin County, Colorado Dorothea Farris, Chairperson ~resident 0 Date in C°unty Clerk/~i~ ')o'~':i>~~ County's Address: Aspen/Pitkin County airport 0233 E. Airport Rd., Suite A Aspen, CO 81611 Fax #: 970-920-5378 Phone: 970-920-5384 Date ATTEST: / Corporatg' Secretary/Seal Licensee's Address: For receipt of mailed notices hereunder: Pitkin Portage, Inc. P.O. Box 9380 Aspen, CO 81612 Fax #: Phone: 970-925-9945 -11 REQUIRED CLAUSES For purposes o£ these required clauses, "Contractor" means Pitkin Portage, Inc. Contractor shall be subject to the following provisions: EXHIBIT "A" COMPLIANCE WITH PROCUREMENT CODE AND APPLICABLE STATE CON- TRACT1NG LAW A. The Contractor acknowledges that this Agreement is entered into subject to the requirements of the" ' ' , - · . P~tkin County Procurement Code, (Section 8.5 of the P~tkm County Home 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 of knowledge of such violations shall be considered a breach of this Agreement. Further, such failure to notify the County of violation of the Procurement Code or statutes within five (5) days of knowledge shall be deemed as a waiver of any action or defense that the Contractor may have against the County by reason of such violation of the Procurement Code or statutes. WARRANTIES AGAINST CONTINGENT FEES, GRATUITIES, KICKBACKS AND CONFLICT OF INTEREST A. Covenant Against Contingent Fees. The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. B. Gratuities Prohibited. The Contractor agrees not to give any employee or former employee of Pitkin County a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase .request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. C. Gratuity means a payment, loan, subscription, advance deposit of money, services, or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is received. D. Kickbacks Prohibited. It shall be a breach of Agreement for any payment, gratuity, or offer of employment to be made by or on behalf of a subcontractor under a contract to the prime contractor or higher tier subcontractor or any person associated therewith, as an inducement for the award of a subcontract or order. The Contractor is prohibited from inducing, by any means, any person employed under this Agreement to give up any part of the compensation to which he/she is otherwise entitled. The Contractor shall comply with all applicable local, state and federal "anti-kickback" statutes or regulations. -12- /¢ E. Conflict of Interest Prohibited. No official, officer, employee or representative of the County during the term of this Agreement or one (1) year thereafler shall have any interest, direct or indirect, in this Contract or the proceeds thereof. (Additional restrictions on present and former employees of County are found in Article 7 of the Procurement Code). F. Sub-Contract Clause. The prohibitions against contingent fees, gratuities, kickbacks and conflict of interest prescribed in this Agreement shall be made a condition of and conspicuously set forth in every sub-contract and solicitation therefore. G. Conspicuously means written in such special or distinctive format, print, or manner that a reasonable person against whom it is to operate ought to have noticed it. H. Remedies. In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the County shall have the right to: (1) Terminate this Agreement without liability by the County; (2) Debar or suspend the offending parties from being a contractor or sub-contractor under County contracts; (3) Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Contractor; and (4) Recover such value from the other offending parties. EQUAL EMPLOYMENT OPPORTUNITY AND DISADVANTAGED~Vi1NORITY/WOMEN BUSINESS ENTERPRISES (DBE/MBE/WBE) A. Pursuant to local, state and/or federal anti-discrimination and affirmative action programs, .contractor shall meet all applicable requirements with respect to employment and subcontracting in connection with Disadvantages/Minority/Women individuals and enterprises (DME/MBE/WBE). B. In connection with the execution and administration of thSs Agreement, and any subcontracts, the Contractor shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, handicap or status as a veteran. C. In connection with the performance of this Agreement, the Contractor will cooperate with the County in meeting the County's commitments and goals with regard to the maximum utilization of disadvantaged, minority and women business enterprises and will use its best efforts to ensure that such business enterprises shall have the maximum practicable opportunity to compete for employment and/or subcontract work, if any, under this Agreement. D. The Contractor will furnish all necessary information and repons and will permit access to its books, records, and accounts by Pitk/n County for purpose of investigation to ascertain compliance with the nondiscrimination/affirmative action provisions of any resultant contract. E. Employment Data and Affirmative Action Plan. If requested, the Contractor agrees to submit on an Employment Data Form to be provided by the County, the data showing the utilization of disadvantaged persons, minor/ties and women by job category within its organization. Where the Contractor has flfly (50) or more employees or it is participating in con- tracts with the County, which exceed Fifty-Thousand ($50,000.00) Dollars, an Affirmative Action -13- Plan must be submitted to the County when requested by the County Attorney's Office within ten (10) days after selection. F. Noncompliance. In the event of the Contractor's noncompliance with the ~ondiscrimination/affirmative action provisions of any resultant contract, Pitkin County shall ~mpose such contract sanctions as it may determine to be appropriate, including, but not limited to: (1) Withholding of payments under the Agreement until the Contractor complies, and/or (2) Cancellation, termination, or suspension of the Agreement, in whole or in pan. 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 Pitldn County: (1) 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 (10) days (or longer as the County may allow or shorter, but not less than three (3) days, for failure to provide proof of insurance 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 11 of the 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 God, 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 consti- tuted 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 Inailing of the notice, as provided in Paragraph 11 of the Agreement. io o. . fe. rmination Procedu{e. After the effective date of the notice of cancellation, termination r nerault o~r for the convemence of the County, unless otherwise directed by the County, the ntractor snail: (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. -14- (3) Terminate all orders and subcontractors to the extent that they relate to the performance of work termSnated by the notice of termination. (4) With the approval or ratification of the 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 of a notice of termination for the convenience of the County, the Contractor shall submit to the County his termination claim in the form of a final invoice in accordance with the provisions 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 Contractor's failure to subimt a claim in the time allowed, the County may review the information available to it and d?erm/ne the amount due the Contractor, if any, and pay the Contractor the amount as deter- m~ned. 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 County. 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: (1) 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 fraally 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 of receipt in writing of the 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 £mal 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. INTEGRATION AND MODIFICATION A. The Agreement constitutes the full and complete agreement of the parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, the Contractor understands that unless the 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. -15 B. With respect to change orders under the Agreement, the County and the Contractor shall process and approve/disapprove requests for change orders as otherwise provided in this Agreement, subject to the requirements of the Procurement Code and the Finance Office. A. The Contractor (including, by definition here and hereinafter, its officials, employees, agents and representatives, subcontractors and suppliers), shall and hereby does release, dis- charge, 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, judg- ment, 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 onfission by the Contractor, and for any consequential liability alleged to accrue against the County on account of the Contractor's acts, errors or omis- ~i.ons; provided, however, that such indemmty 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 hereto at its sole expense and shall bear all other costs and expenses related thereto, even if the claim, demand or lawsuit is groundless, false or fraudulent. 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, persona/injury or property damage, which may arise out of or result from the Contractor's acts, errors or ornissions. The following insurance coverage, at or above the limits indicated and including such endorsements as are indicated by an "X", are required: (1) Statutory Workers' Compensation: Colorado statutory minimums (2) Commercial General Liability - ISO 1998 Form or equivalent (With County named additional insured) Each Occurrence Limit General Aggregate Limit Products/Completed Operations Aggregate Limit $1,000,000.00 $2,000,000.00 $2,000,000.00 Comprehensive Form (All risks) to include (place X by applicable provisions): x Premises/Operations __ Underground, Explosion & Collapse Hazard __ Products/Completed Operations x Contractual Liability __ Independent Contractors and Subcontractors x Broad Fom~ Property Damage x Personal Injury (3) Business Auto Coverage: Combined Single Limit Liability (each accident) $1,000,000.00 -16- Coverage to include (place X by applicable provisions): Any Auto Ail Owned Autos Hired Autos Non-Owned Autos Garage Liability (4) Special Coverages (check as appropriate and insert amount): (1) Performance Bond Labor and Material (2) Professional Errors and Omissions (3) Aircraf~ Liability $1,000,000.00 (4) Owner's Protective (5) Builder's Risk amount of project (6) Boiler and Machinery (7) Loss of Use Insurance (8) Pollution Liability (9) Crime, including Employee Dishonesty Coverage, or Fidelity Bond PROOF OF iNSURANCE SHOULD BE SENT TO: Aspen/Pitkin County Airport C/O Edna Adeh 0233 E. Airport Road, Suite A Aspen, CO 81611 Fax 970-920-5378 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 be filed with the County (through the County Representative) 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 rescission or termination. These Certificates of Insurance shall contain a provision that coverage afforded under the policies will not be canceled or materially altered unless at least thirty (30) calendar days prior written notice by certified mail, return receipt requested (effective upon proper mailing), has been sent to the County (through the County's Risk Department). (For purposes of this provision, "materially altered" shall mean a change affecting the coverage's required herein, including a change to policy limits as set out in the then-current 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 certified 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) ]~ae clause other ~nsurance prows~ons, m a pohcy ~n which the County of P~tkin holds a Certificate, shall not apply to the County of Pitkin. 17- 10. (2) The insurance companies issuing the policy or policies hereunder shall have no recourse against the County of Pitkin for payment of any premiums or for assessments under any form of policy. (3) Any and all deductibles in the above-described insurance policies shall be assumed by and be for the amount of, and at the sole 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 be delivered to the County's Representative at least fifteen (15) days prior to a policy's expiration date except for any policy expiring on the expiration date of this Agreement or thereafter. E. The County reserves the right to request and receive a copy of any policy and any policy endorsement. EXEMPTIONS AND PREFERENCES A. All purchases of construction or building or any other materials for this Agreement shall not include Federal Excise Taxes or Colorado State or local sales or use taxes. Pitkin County is exempt from such taxes under registration numbers 98-02624 and 84-78000-5K. B. Pursuant to state statute and to the extent permitted by law, Colorado labor shall be employed to perform the work to the extent of not less than eighty percent (80%) of each type or class of labor employed on such project; except for highway construction, which is subject to C.R.S. 43-2-208, which provides that all laborers shall be bona fide residents of Colorado with a preference to residents of the County where the work is performed. C. Preference is given, to the extent permitted by law, to: materials, supplies and provisions produced, manufactured or grown in Cotomdo, 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. RECORDS The Contractor shall maintain comprehensive, complete and accurate books, records, and documents concerning its performance relating to this Agreement for a period of three (3) years after fmal payment under the Agreement and the County shall have the right within the three (3) year period to inspect and audit these books, records and documents, upon demand, in a reasonable manner and at reasonable times, for the purpose of determining, by accepted accounting and auditing standards, compliance with all provisions of the Agreement and applicable law. THIRD PARTIES This 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 Contractor or County may assign this Agreement in accordance with the specific written permission, 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. -18- 11. 12. 13. 14. AGREEMENT MADE 1N COLORADO The 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. ATTORNEY'S FEES In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's fees. 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, immtmities, and protections provided by the Colorado Governmental Immunity Act, 24-10-101, et. seq., C.R.S., as from time to time amended, or otherwise available to Pitkin County or any of its officers, agents or employees. Further, nothing in these Required Clause or the Agreement shall be construed or interpreted to require or provide for indemnification of the Contractor by the County for any injury to any person or any property damage whatsoever which is caused by the negligence or other misconduct of the County or its agent or employees. CURRENT YEAR OBLIGATIONS The parties acknowledge and agree that any payments provided for hereunder or requirements for future appropriations shall constitute only currently budgeted expenditures of Pitkin County. Pitkin County's obligations under this Agreement are subject to Pitkin County's annual right to budget and appropriate the sums necessary to provide the services set forth herein. No provisions of the Agreement shall constitute a mandatory charge or requirement in any ensuing fiscal year beyond the then current fiscal year of Pitkin County. No provision of the Agreement shall be construed or interpreted as creating a multiple-fiscal year direct or indirect debt or other fmancial obligation of Pitkin County within the meaning of any constitutional or statutory debt limitation. This Agreement shall not directly or indirectly obligate Pitkin County to make any payments beyond those appropriated for Pitkin County's then current fiscal year. No provisions of this Agreement shall be construed to pledge or create a lien on any class or source of Pitkin County's moneys, nor shall any provision of this agreement restrict the future issuance of Pitkin County's bonds or any obligations payable from any class Or source of Pitkin County's money. -19-