HomeMy WebLinkAboutbocc.ord.043.2004AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO,
AUTHORIZING PITKIN COUNTY TO ENTER INTO A
LEASE AND USE AGREEMENT
FOR A FiVE YEARS AND ELEVEN MONTHS TERM (2004 - 2010)
WITH NGSI-ASPEN, L.L.C. dba ASPEN MERCANTILE
FOR THE PROVISION OF NECESSITIES AND GIFT SHOP SERVICES
AT THE ASPEN/PITKIN COUNTY AIRPORT
ORDINANCE # J//~ , SERIES OF 2004
RECITALS
1. Pitkin County, Colorado ("County"), is a home-rule county organized under the
Constitution and statutes of the State of Colorado and the Pitkin County Home Rule Charter;
and
2. The County is the owner, operator and sponsor (for federal funding purposes) of the
Aspen/Pitkin County Airport ("Airport"), which is located in Pitkin County near Aspen,
Colorado; and
3. The County, with respect to the Airport and pursuant to, inter aliaj Sections 41-4-101 et
seq. and 29-3-101 et seq., C.R.S. 1973, as amended, and Sections 2.8.2 and 8.7 of the Pitkin
County Home Rule Charter, as amended, has the authority to lease, license and permit the
occupancy and use of Airport land areas, buildings and facilities and to establish the terms,
conditions, fees and charges for such occupancy and use; and
4. The County has conducted a procurement action to fill on-airport necessities/gift shop
concession slot for a term commencing on November 1, 2004 and terminating on September 30,
2010; and
5. NGSI-Aspen, L.L.C. dba Aspen Mercantile was the top-ranked Proposer in the
competitive selection process; and
6. On the recommendation of staff and after a public hearing, the Board of County
Commissioners finds that the adoption of a Lease and Use Agreement for the referenced
occupance and use of Airport property with the NGSI-Aspen, L.L.C. dba Aspen Mercantile is in
the best interest of the County.
THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF
PITKIN COUNTY, COLORADO:
Section 1. Approval and Adoption. That the Lease and Use Agreement between NGSI-Aspen,
L.L.C. dba Aspen Mercantile and the County is hereby approved and adopted according to its
terms and conditions.
Section 2. Authority to Execute. 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, the Lease and Use Agreement, and such other and further documents as may be
reasonably required to complete the transactions described or necessarily implied herein, which
other documents have been approved as to form by the County Manager and the County
Attorney.
Section 3. Copies for Public Inspection. That a true and correct copy of this Agreement shall be
available for public inspection prior to the public hearing thereon during County business
hours at the office of the Director of Aviation at the Aspen/Pitkin County Airport (970) 920-
5384.
Section 4. Public Hearing. That a public hearing on this Ordinance shall be held at 2:00 p.m.,
local time, or as soon thereafter as the conduct of business will allow, on October 13, 2004, in a
location identified by a notice in the Pitkin County Courthouse, Aspen, Colorado.
Section 5. Publication. That this Ordinance shall be published prior to and after adoption in
full, but without attachments.
INTRODUCED, FIRST READ AND SET FOR PUBLIC HEARING AT THE REGULAR
MEETING ON THE 22ND DAY OF SEPTEMBER 2004.
NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES WEEKEND EDITION
ON THE 25TH DAY OF SEPTEMBER 2004.
APPROVED AND A,I~OI~TEzD, AFTER SECOND READING AND PUBLIC HEARING ON THE
].-~at DAY OF {.V~ C-~ .2004.
PUBLISHED AFTER A~oI~rI~N IN THE ASPEN TIMES WEEKEND EDITION ON THE
~ _~'DAY OF /_J~Z~ {),g~, ,2004.
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
~ro~thea Farris, Chairp~rs~)-r~
Date:
JeaN
Del~-
Date:
2 Jones ~
Clerk & Recor~ er
2
RECOMMENDED FOR APPROVAL:
Director of Aviation
Date:
MANAGER APPROVAL:
Date: q. /~.o~/
APPROVED AS TO FORM:
cli'ris Seldin,
As~ Attorney
SILVIA DAVIS PlTKIN COUNTY CO R 0.00 D 0.00
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INDEX
for the
Aspen/Pitkin County Airport
Terminal Gift Shops
Lease and Use Agreement
2004 - 2010
SECTION A
PREMISES, TERM, USES, REQUIREMENTS, RESTRICTIONS
Demise of Premises
a. Description of Premises
b. Map of Premises
c. Restricted entry/occupancy
d. Additional Premises
Acceptance of Premises
Leasehold Improvements
Term
a. Initial term
b. No Renewal term
c. Continued Occupancy w/Consent of County
d. Continued Occupancy w/o Consent of County
e. Obligation of County at end of term
Use of Premises
a. Required Uses
b. Right to Operate Gift Shop
c. Mediation in Case of Negotiation Impasse
d. Prohibited Uses
Requirements of Lessee's Operations
a. Duty to Maintain Operations
b. Overall Quality of Operations
c. Service
d. Products and Services
e. Prices
f. Hours of Operation
g. Trade Fixtures, Furnishing & Equipment
h. Signage
i. Environmental Quality Improvement Plan
j. Requirements of Insurers
k. Customer Comment Recording & Complaint
Resolution Procedure
1. Security Requirements
Restrictions on Lessee's Operation
Notice of Non-Compliance or Satisfactory
Performance
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SECTION B
BASE RENT, MINIMUM ANNUAL GUARANTEE OR PERCENTAGE OVERRIDE,
ADDITIONAL FEES AND CHARGES, PAYMENTS, AND REPORTS AND AUDITS.
3.
4.
5.
Rent, Fees and Charges
a. Base Rent
b. Minimum Annual Guarantee or Percentage
Override
1) MAG for Initial Term
2) Percentage Override
c. Additional Charges
Calculation and Payment of MAG and PO
Definitions
Payments
Performance and Payment Security
a. Types of Security
b. County Use of RequLred Security
c. County Return/Release of Required Security
d. County Lien on Personal Property
Lessee Reports
a. Monthly Reports
b. Annual Reports
c. Special Reports
Lessee Business Records
County's Right to Audit
a. Time & Frequency of Audits
b. Manner of Audits
c. Scope of Audits
d. Results of Audits
e. Expense of Audits
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SECTION C
COUNTY RESERVATION OF RIGHTS
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SECTION D
RELEASE, INDEMNITY AND INSURANCE
2.
3.
4.
Definitions
Lessee's Release & Indemnity of Lessor
Lessee's Required Insurance
County Insurance Obligations
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23
24
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SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00
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SECTION E
OPERATION AND MAINTENANCE OF PREMISES
Maintenance and Repair
a. County's Obligations
b. Lessee's Obligations
c. Lessee shall not
Utilities
a. County's Obligations
b. Lessee's Obligations
Modifications, Alterations and Improvements
a. By County
b. By Lessee
Snow Removal
a. County's Obligation
b. Lessee's Obligation
Dehvery
Casualty Release
SECTION F
ASSIGNMENT
2.
3.
4.
5.
Assignment Prohibited w/o County Consent
Standards and Procedures to Obtain County Consent
Effect of Previous Assignments
Validity of Assignment w/o County Consent
Lessee Acknowledgement
SECTION G
DEFAULT AND TERMINATION
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Incidents of Default by Lessee
Notice of Default
Lessee's Right to Cure
Lessor's Right to Cure
Lessor's Rights Upon an Uncured Default
Termination of Lessee's Possessory Right
Termination of the Lease
Not a Surrender
Property Left on Premises
Cost of Default
Lessor's Duty to Relet
Default by Lessor; Lessee's Remedies
Lessor's Remedies
$ILVIA DAVIS PITKIN COUNTY CO R 0.00
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D e.ee
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SECTION H
GENERAL PROVISIONS
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
Coordination w/other Airport Users
Surrender of Premises/Lessee's Personal Property
Compliance w/Applicable Laws & Regulations
Lessee's Personal Property/Trademarks
Substitution of Pitkin County Airport Facilities
Destruction of Buildings & Other Improvements
Rights of Seizure
Relationship of Parties
Non-Liability of County's Agents & Employees
Notices
Representations of Lessee
Entire Agreement/Merger
Severability
No Oral Modification
No Waiver
No Presumption Agaifist Drafting Party
Attorney's Fees
Governing Law/Venue
Binding Effect
Captions
Time of the Essence
Duplicate Originals; Recorded Summary
Authority of Lessee's Representative
Suspension of Terminal Operations
Signature pages
EXHIBITS
"Exhibit A'
"Exhibit B"
"Exhibit C"
Required Clauses
Map of Premises
Leasehold Improvement Plans & Schedule
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41-48
Attachment
Attachment
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$ILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00
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7
ASPEN/PITKIN COUNTY AIRPORT
TERMINAL GIFt SHOPS
LEASE AND USE AGREEMENT
2004--2010
NGSI-ASPEN, L.L.C. dba ASPEN MERCANTILE
THIS LEASE AND USE AGREEMENT, is by and between the BOARD OF COUNTY
COMMISSIONERS OF PITKIN COUNTY, COLORADO, a Colorado home-rule County ("County" or
"Lessor"), as Lessor/Permittor, and NGSI-Aspen, L.L.C. dba Aspen Mercantile ("Lessee"), as
Lessee/Permittee.
WHEREAS, County is the owner, operator and sponsor 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 facilities, a general aviation terminal and
facilities, certain areas for public use, certain areas for exclusive and non-exclusive commercial use
(subject to lease, license or permit) and certain reserved areas; and
WHEREAS, County has the authority to operate and manage the Airport, to lease and license
the occupancy and use of Airport land areas, buildings and facilities, and to permit and regulate
commercial activities thereon, pursuant to, inter alia~ C.R.S. Sections 41-4-101 et seq., 30-11-107, as
amended, and Section 8.7 of the Pitkin County Home Rule Charter; and
WHEREAS, Lessee is engaged in the business of a commercial gift shop operator and it
desires to occupy and use some of the areas and facilities of the Airport for that purpose;
NOW, THEREFORE, for and in consideration of the mutual covenants, terms and conditions
contained herein, the County and Lessee do mutually undertake and agree as follows:
A. PREMISES, TERM, USES, REQUIREMENTS, RESTRICTIONS
1. Demise of Premises. In consideration of Lessee's payment of all rent and other money
due hereunder, and of Lessee's full and faithful performance of and compliance with all other terms,
conditions and covenants hereof, and sul~ect to the rights reserved by County herein, County hereby
grants to Lessee, and Lessee hereby accepts from County, the right to occupy and use that portion of
the land areas and improvements of the Airport identified as the Terminal and Secured Boarding Gift
Shops (hereinafter, the "Premises"), depicted on Exhibit "B," and described as follows:
a. Description of Premises:
i) The exclusive occupancy and use of the Terminal Gift Shop
(280 sq. ft.) and Secured Boarding area Gift Shop (120 sq. ft.).
The Premises shall include the sliding glass door, display window, locks, keys,
plate glass, ceiling, floor covering and utility fixtures and outlets.
ii) As appurtenances to the exclusive-use space, the limited, non-exclusive
use for ingress, egress, and other purposes specifically noted, of the following:
1) Areas immediately outside the access door of the shop, for
the location of moveable, temporary sales display fixtures, so long as
such displays are approved by the Director of Aviation or his/her
designee.
2) Entryways, exitways, driveways and internal circulation
areas appurtenant to the above-described areas, subject to rules
and regulations in common with other users of Lessee's classification.
3) Areas made available to the public (waiting rooms,
concessions, restrooms), subject to rules and regulations in
common with other users of Lessee's classification.
4) Employee parking spaces, upon request by Lessee and if
then-available, subject to numbers of spaces, fees, costs, rules and
regulations established by the County (and payable directly to the
Airport).
b. Map of Premises. The Premises is depicted on Exhibit B attached hereto and
incorporated herein by this reference. The County and Lessee acknowledge that such
Exhibit may not be to scale and shall be replaced, upon the mutual agreement of the
parties, at such time as scale maps based on actual survey data become available.
c. Restricted entry/occupancy. Any entry on, occupancy of or use of
Airport land areas or improvements by Lessee that is not expressly demised and
described by this Lease shall be and is hereby prohibited, except by separate
express prior written permission from the County and under such terms and
conditions as the County, in its sole discretion, may determine.
d. Additional Premises. If, during the term of this Agreement, additional
Premises are made available or permitted by Pitkin County for occupancy
and use by Lessee, Lessee and County shall enter into good faith negotiations for
the commercially reasonable fees or charges to be paid by Lessee prior to such
additional use and occupancy.
2. Acceptance of Premises. The Lessee agrees that the Premises have been inspected by
Lessee at the beginning of this Lease term and are accepted and initially will be occupied by
Lessee on an "as is" basis.
3. Leasehold Improvements. Lessee, at its sole expense, shah undertake and complete
capital improvements to the Premises (of a type, quality and cost to the satisfaction of
the County) in the first six months of the Initial Term hereof, as follows:
i) See attached Exhibit "C".
ii) General refurbishment, if mutually agreed to by the parties, to a total cost of a
mirtimum of $60,000.
6
4. Term. The term of the occupancy and use of the Premises by Lessee shall be as
follows:
a. Initial Term. The Initial Term of this Lease shall be five (5) years and
eleven (11) months, commencing at 6:00 a.m. MST, November 1, 2004, and
expiring at 10:00 p.m. MST, September 30, 2010, unless earlier terminated.
At the end of the first two years (November 1, 2004 - October 31, 2006),
the County will review and evaluate the performance of the Lessee and
provided the Lessee has met all terms and conditions of the lease will
notify Lessee of the continuation of this lease into the second two-year
phase by written correspondence.
ao2o
The County will conduct another review of the Lessee's
performance at the end of the second phase (November 1, 2006 -
October 31, 2008) and provided the Lessee has met all
terms and conditions of this lease will notify Lessee of the continuation
of this lease into the last phase (November 1, 2008 - September 30, 2010)
by written correspondence.
b. No Renewal Term. There shall be no renewal of this lease beyond September
30, 2010, except the parties may negotiate a renewal term as a part of the Equitable
Adjustment procedure set forth in Paragraph A.5. hereof.
c. Continued Occupancy with Consent of County (Holdover). If Lessee
remains in occupancy of the Premises after the expiration of Initial or Renewal
terms with the consent of County, Lessee's interest in the Premises from and
after that date shall be deemed to be month-to-month, pursuant to the terms and
conditions of this Lease, or as the parties may otherwise agree in writing, or, ff
the parties shall fail to agree in a reasonable time, upon such other terms and
conditions as may be established by the Airport, in its sole discretion, upon ten
(10) days' notice to Lessee.
d. Continued Occupancy without Consent of County. If Lessee remains in
occupancy of the Premises without the consent of County, it shall have the
obligation to pay Base Rent and MAG for such period at a rate of 200% of the last
effective rate hereunder, and shall continue to adhere to all the requirements of this
e. Obligation of County at end of term. Upon the expiration or termination of
the Initial Term, Lessee acknowledges that there is no other or further right,
representation or expectation of renewal or extension of this Lease and that the
Premises thereafter will be subject to the County's stated intent and obligation to
expose the Premises and rights granted hereunder to public competitive selection
process at the time.
5. Use of Premises. Lessee's use of the Premises shall be su~ect to the following:
a. Required Uses. Lessee shall occupy and use the Premises solely for the
Page: 10 of 53
SILVIA DAVIS PITKIN COUNTY CO R 0.00 0 0.00
purpose of operating the Terminal Gift Shops, as defined herein.
b. Right to Operate Gift Shop. The parties acknowledge that the County is
currently considering expansion plans for the terminal building that might take place
during the term of this lease. In the event that either one of the existing designated gift
shop location is affected by that change, then the Lessor shall enter into good faith
negotiations with the Lessee to determine equitable arrangements. Further, the
County hereby reserves the right to allow other Airport lessees, licensees or permittees
(LLPs) to sell certain gift-shop-type items including, without limitation, items sold in
vending machines and items that carry an LLP's logo and are incidental to its business
(e.g., mugs, hats and t-shirts).
c. Mediation in Case of Negotiation Impasse. A good faith negotiation to
determine the Equitable Adjustment first shall be undertaken by Lessee and the
Airport. If agreement is not reached thereby, the matter shall be submitted to a
neutral, third-party mediator. This mediator shall be mutually selected and
compensated by the Lessee and the Airport and shall be, unless expressly agreed
otherwise, a certified public accountant practicing in the Roaring Fork Valley
who has substantial experience representing small retail businesses. The
mediator shall establish the procedures for the mediation (e.g. required
submittals, deadlines, manner of presentations), but it shall end with a written
report and recommendation by the mediator. The mediation shall be non~
binding, but if either of the parties disagrees with the report, it shall have the
following remedies: If Lessee disagrees, it may terminate the lease upon 90
days' notice; If the Airport disagrees, it may terminate the Renewal Term, or any part
thereof remaining, upon 90 days notice.
d. Prohibited Uses. Lessee shall not occupy, use, permit or suffer the Premises or
any part thereof to be occupied or used as follows:
i) For any use, activity, display or product not specifically permitted
herein; any such use shall be and is hereby prohibited, except as by separate
express prior written permission from the County and under such terms and
conditions as the County, in its sole discretion, may determine.
ii) For any occupancy, use, business, activity or purpose that is unlawful or
illegal or in any way in violation of any present or future statutes or ordinances
or formally-adopted rules, regulations, requirements, orders, directives of the
United States of America, State of Colorado, County of Pitkin, City of Aspen, or
other lawful authority whatsoever.
iii) For any activity deemed by the Lessor to be hazardous, or in such
manner as to constitute a. nuisance of any kind, or which will in any way
increase the rate of fire, casualty or liability insurance upon the Terminal or the
Airport.
iv) For any auction, fire or bankruptcy sale, without Lessor's consent.
SILVIA DAVIS PITKIN COUNTY CO R 0.00
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v) For any purpose or in any manner that would result in a violation of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Lessee
hereby indemnifies and holds harmless the County from and against any
violation of the ADA attributable to Lessee.
6. Requirements of Lessee's Operations. Lessee, in the conduct of its operations, shall
be subject to the following requirements:
a. Duty to Maintain Operations. Lessee hereby undertakes an affirmative
obligation, for the term of this Lease, as it may be renewed as provided above, to
operate the Terminal Gift Shops at times and in a manner described in this Lease.
b. Overall Quality of Operations. Lessee shall operate the Gift Shops in a first-
class manner, with a scope of products and to a level of quality equal to or better than
gift shop operations of similar size and traffic volume at first-class U.S. destination
resort airports.
c. Service. The Gift Shops shall be operated and managed in an efficient,
businesslike and courteous manner, with at least the following elements:
i) Owner/Operator. Ail persons holding or controlling ownership or
management interests of thirty percent (30%) or greater shall work regular
shifts in the shop if and when an employee is not available.
ii) Employees. Lessee shall provide adequately trained and supervised
personnel in sufficient numbers to provide information to potential customers
and to arrange for and complete sales transactions. Lessee's employees shall be
safety-conscious, environmentally-sensitive, helpful and courteous at all times,
consistent with the highest standards of customer relations practices, and be
dressed in a manner reflecting this airport and community.
iii) Supervision. Employees shall be adequately supervised, or have access
to operational policies and procedures, to respond to customer complaints and
Airport inquiries.
iv) Training. Lessee will participate if and when an airport customer
service enhancement training become available.
d. Products and Services.
i) Lessee shall at all times maintain a stock of items for sale in sufficient
amounts, types and quality.
ii) Lessee shall maintain the fullest possible range of "necessity items,"
personal health and comfort items commonly needed by air travelers.
iii) Lessee shall not permit the sale of pornographic materials or literature
on site.
SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00
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iv) Lessee shall be permitted to offer limited candy and snack items in the
display area with the following restrictions: no heated or refrigerated
products; no sale of beverages; the sale of chewing gum (non-bubble gum) will
be permitted subject to change, by written notice, contingent to maintenance
requirements.
e. Prices. Prices for items determined by the Airport to be "necessity items" (e.g.,
medicines, disposable diapers, personal hygiene products) shall be no more than the
Manufacturers Suggested Retail Price (MSRP) for such items.
Lessee shall offer an employee discount, of no less than ten percent (10%) (except for
MSRP items, newspapers, and stamps) to employees of Airport LLPs. Discounted
sales will be accounted for separately and not included in gross sales determination
(except discounted sales of individual items with marked price, prior to the discount
or promotional deduction, of $50.00 or greater, which shall be included in "gross
receipts").
f. Hours of Operation. Lessee shall open and remain open for business and be
adequately equipped, provisioned and staffed to serve the market demand, seven (7)
days a week from 6:00 a.m. to the last departure of the day, depending on the season.
In recognition of the fact that Airline flight schedules and the exact tourist "seasons"
will vary somewhat throughout the term of this Lease, Lessee shall make adjustments
to meet actual market demand and AirlJ~ne flight schedules.
g. Trade Fixtures, Furnishing and Equipment. Lessee shall provide sufficient
trade fixtures, furnishings and equipment to conduct high quality gift shop operations
as described herein.
h. Signage. Lessee shall identify the shop by signs or logos in numbers, size,
color, design, content and type as approved in advance in writing by the County.
Environmental Quality Improvement Plan (EQIP). The County's stated goal
is to plan for the reduction or elimination and continually reduce or eliminate environ-
mental degradation caused by the operations of Airport's lessees, licensees and
permittees (LLPs) in all areas including, without limitation: pollution by CO, CO2,
CFCs, particulates, and other internal combustion engine emissions; traffic congestion;
gasoline consumption; and solid waste.
It is the express intention of the County that all Airport LLPs strictly comply with all
environmental rules and regulations and be sensitive to all present and future environ-
mental 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.
Lessee acknowledges that the County considers the following EQIP to be a material
element of this Lease and a breach of obligations thereunder to be a material breach.
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Until the expiration or termination of this Lease, Lessee shall diligently accomplish
and/or comply with an Airport EQIP as follows:
i) Promptly after the execution of this Lease, Lessee agrees to institute the
following operational practices:
1) Chloroflourocarbons (CFCs). No products containing CFCs are
to be sold or used in operations or maintenance.
2) Waste Minimization. Lessee shall take all steps that are
commercially available to: reduce the amount of packaging of products
purchased and sold (and to ensure that such packaging is recyclable); to
re-use materials; and to recycle all materials.
3) Hazardous materials. Lessee shall not permit the use of or
storage on the Premises of any hazardous materials, including those
defined as such by state and federal law.
4) Energy conservation. Lessee shall take all reasonable steps to
reduce energy consumption on or concerning the Premises.
5) Auto emissions. Lessee shall take all steps to reduce motor
vehicle emissions and traffic congestion with respect to product
deliveries and employee transportation including, by way of example,
providing employees with free or discounted RFTA bus passes for
transportation to and from work.
6) Trash. All shop's trash must be deposited in the airport
dumpster. Lessee shall not permit the accumulation of its trash at the
exit doors or around the dumpster.
j. Requirements of Insurers. Lessee shall, at its sole cost and expense, comply
with any and all requirements pertaining to the Premises of any insurance company
necessary for the maintenance of reasonable fire, casualty and public liability
insurance covering the Terminal and the Airport.
k. Customer Comment Recording and Complaint Resolution Procedure. Lessee
shall establish and maintain a system for documenting and recording all customer
comments, including compliments and complaints, whether oral or written, and for
the prompt, appropriate and businesslike resolution of all complaints.
I. Security Requirements. Lessee shall adhere to all Transportation Security
Administration (TSA) and airport security regulations.
7. Restrictions on Lessee's Operations. Lessee, in the conduct of its operations, shall be
subject to the following restrictions:
a. Lessee shall not display or store any items in or about the Premises that are not
for sale.
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b. Lessee shall not place any objects, displays or signs upon the Premises, except
of such design, content and structure as shall be approved by County, provided that
County's approval shall not be unreasonably withheld. Any sign permitted by County
shall, in addition, at all times comply with all applicable Airport policies, rules and
regulations.
c. Lessee (along with its successors, assigns, parent, child, and sister companies,
and any other affiliated businesses) shall not conduct Transactions or establish other
Locations, as defined below, elsewhere on the Airport or elsewhere within Pitkin
County (including the City of Aspen and the Town of Snowmass Village), or within
the incorporated boundaries of the Town of Basalt (as the same may be changed
during the term of this Agreement) or the shopping areas of E1 Jebel, except as may be
separately and expressly permitted as provided herein.
Lessee acknowledges that the intent and effect of this section is to prohibit Lessee from
conducting any gift shop business within Pitkin County, the Town of Basalt and El
Jebel, except reportable business from the Airport as expressly permitted herein. If
Lessee proposes to conduct Transactions or establish a Premises prohibited by this
Section, it shall first apply to the Director of Aviation with a full description of the
proposed Transaction(s) and/or Premises(s). The Director of Aviation shall then
determine, in his reasonable discretion, whether the proposed Transaction(s) or
Premises(s) is intended to or will divert business from the Airport Premises, whether
the proposal is otherwise in compliance with this Agreement and to what extent the
proposal will impact the Airport Premises. If the proposal is in compliance with this
Agreement (by not being, by way of example and without limitation, a diversion of
business from the Airport), the Director of Aviation shatl consent in writing to the
proposal and establish such reasonable terms, conditions and fees as are commen-
surate with the proposal's impact on the Airport.
d. Lessee shall not knowingly or witlfully divert or permit the diversion of
business from its herein-Leased Airport Premises with the intent of evading Airport
payments, regulations, restrictions, requirements, fees or charges.
Atl revenues derived from the conduct of business prohibited or restricted by this
Section shall be includable for purposes of percentage of Gross Revenue calculations
and payments pursuant to this Agreement.
e. Lessee shall not hold or control, directly or indirectly, any rights or obligations
in the management, operations, premises, inventory, ownership, voting or financing of
any other Airport LLP or entity doing business on, at or through the Airport including,
expressly, any company with a Premises within Pitkin County, the Town of Basalt or
E1 Jebel; provided, however, that upon full disclosure by Lessee of all such rights or
obligations, the County will consent, in its reasonable discretion, to the existence and
enforcement of such rights and obligations that either do not affect the County's
interests hereunder in the promotion of competition and the avoidance of revenue
diversion, or that are made subject to such reasonable terms and conditions as are
necessary to protect County's interests. For purposes of this section, "Lessee" shall
include all natural persons, corporations or other business entities holding or control-
ling, directly or indirectly, any rights or obligations in Lessee's management,
operations, premises, inventory, ownership, voting or financing.
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8. Notices of Non-Compliance or Satisfactory Performance. In the event that County
comes to believe that Lessee is not fully and faithfully in compliance with the terms and
conditions of this Lease and, In the County's discretion, such non-compliance is deemed not,
by itself, to rise to the level of an Incident of Default hereunder, County may issue a Notice of
Non-Compliance to Lessee on a form established by the Airport. Lessee agrees to promptly
undertake such action as may be reasonable and appropriate to remedy the situation giving
rise to any such complaInts and/or any operational deficiencies noted by County. If the
circumstances that are the basis for the Notice are not resolved to the Airport's satisfaction as
provided In the Notice, the fact of and content of such Notice(s) may be used in future
procurements, or In responding to inquiring from third parties concerning Lessee.
If Lessee has been a satisfactory operator, it is entitled to receive, upon its request at the end of
any Lease year, a Notice of Satisfactory Performance on a form established by the Airport.
B. BASE RENT, MINIMUM ANNUAL GUARANTEE OR PERCENTAGE OVERRIDE,
ADDITIONAL FEES AND CHARGES, PAYMENTS, AND REPORTS AND AUDITS
1. Rent, Fees and Charges. The rent, fees and charges for the occupancy and use of the
Premises for the term of this Lease shall be as follows:
a. Base Rent. The Base Rent for the Gift Shops space shall be based on airline
standard annual terminal rent. That amount will be reviewed and re-evaluated every
year and the new rates will be announced on or by January 1st of each year. This
amount must be multiplied by the ~wo shops sizes of 280 and 120 sq. ft. per shop (one
in the terminal building and one in the secured board area), divided by twelve (12)
and paid In advance by the 1st day of the month in monthly payments.
i) Base Rent Increase. The Base Rent may be increased by the County at
the same time the annual airline terminal rent is adjusted, upon thirty (30)
days' notice.
b. Minimum Annual Guarantee or Percentage Override. In addition to the Base
Rent described above, Lessee shall pay a Minimum Annual Guarantee (MAG) and an
annual Percentage Override (PO) of the Lessee's annual "Gross Revenues", all as
defined herein.
i) The Minimum Annual Guarantee (MAG) for the Term of this
Agreement is $195,250. In specific, $33,000 for years 1 to 5 and $30,250 for the
remaining 11 months. Increases In MAG will be equivalent to the annual
percentage increase/decrease (calendar Year) In enplanements from the prior
year, but never below the MAG numbers specified in this paragraph.
ii) The Percentage Override shall be the greater of 11% of sales or
$33,000 (years 1-5), $30,250 (11 months).
iii) For purposes of this Agreement, an "operations year" for the
Minimum Annual Guarantee shall be Nov. 1 through Oct. 30 annually.
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c. Additional Charges. In addition to the Base Rent, MAG and PO described
above, Lessee shall pay Additional Charges, as and when applicable, as follows:
i) Advances, costs, fees and expenses incurred by County in connection
with or arising from a default by Lessee, as provided below.
ii) Such rent, fees or charges established for occupancy and use of addi-
tional Premises as provided herein.
iii) Any Administrative costs, fees or charges for assignments requested by
the Lessee to be paid by Lessee to Lessor.
iv) Any other costs, fees or charges to be paid by Lessee to Lessor
hereunder.
2. Calculation and Payment of MAG and PO. The payments of Minimum Annual
Guarantee and Percentage Override amounts shall be calculated as follows:
a. On or before the 1si day of each month in addition to the rent payment Lessee
shall pay to the County an amount which is one-twelfth (1/124) of the current
Minimum Annual Guarantee. Lessee agrees to submit by the 20th day of each month a
statement showing the Lessee's Gross Revenues for the preceding month, said
statement to be in form approved or required by the Airport Director and the County's
Finance Director and signed and certified to be complete and accurate by an employee
of the Lessee authorized to make such a certification.
b. Reconciliations of the percentage override fee that may be due shall take place
on or before the thirty first (31) day of December after completion of each term.
c. Immediately upon Lessee's receipt of revenues from its activities hereunder,
such funds representing payments owed to County hereunder (e.g., Base Rent, MAG,
PO and Additional Charges), shall be vested in and become the property of the County
and Lessee shall hold and be responsible for said funds as a Trustee thereof until the
same are delivered to the County.
3. Definitions. Definitions for the purposes of this Agreement, including the calculation
of the Percentage Override, shall be as follows:
a. "Gift Shop products or services" shall mean merchandise or services that Lessee
is required or permitted to sell or provide at or from the Premises in the ordinary
course of business.
b. "Transaction" shall mean one or more of the following actions or conditions:
the ordering of and receipt of merchandise for resale; the storage of and preparation of
merchandise for sale; the on-site display or advertising of merchandise and services
for sale; the arrangement for payment or receipt of payment (by cash or credit
transaction) for such safe; the delivery of gift shop merchandise; or the return thereof
by the customer.
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/?
c. "Location" shall mean a place: where gift shop merchandise is received from
suppliers, stored, displayed for sale, delivered or prepared for delivery to customers;
or, where Lessee or its employees are present to conduct a transaction(s) relating to
Lessee's business and/or do transact such business; or, where Lessee's logo is dis-
played; or, that is advertised as a place for such transactions to take place; or, that is
equipped for such transactions with, without limitation, a computer terminal/printer,
credit card imprinter, or business telephone, FAX or telex; or, where gift shop sales are
arranged or conducted. For purposes of this Lease, the "Premises" are a "Location"
hereunder.
d. "Gross Sales" as used in this Lease shall mean the full amount of the actual
sales price of all merchandise or services sold for cash or credit in or from the Premises
by Lessee or any permitted sub-lessees or sub-licensees and all amounts received by
Lessee, or which Lessee is entitled to receive, from transactions on, from or through
the Premises or to persons who have deplaned at the Airport and for all other services
and activities performed by Lessee in, at, upon, from or through the Airport in
connection with its gift shop concession and operating privileges on the Airport.
The figure for gross sales will include deposits not refunded to customers, orders of
any kind received or filled at the Premises, receipts from vending machines located
upon the Premises, and any other receipts which Lessee ordinarily would credit to its
business. Each credit or installment sale will be treated as a sale for the full price in the
month it is made, and there will be no deductions for uncollected or uncollectible
accounts or bad debts.
Gross Sales to the Lessee shall be deemed received at the time the sales, lease or service
transaction occurs giving rise to Lessee's right to collect said monies, regardless of
whether said transaction was conducted in person, by telephone, by wire (FAX, telex,
etc.), by mail or by any other method of information transmission, whether the
transaction was for cash or credit, and ff for credit, regardless of whether the Lessee
ultimately collects the monies owed for said transaction from the customer involved.
e. "Gross Revenues" shall mean the amount of money on which the County's
Percentage Override is based and shall be calculated as "Gross Sales" minus the
following deductions:
i) Federal state or local sales taxes separately stated and collected from
customers;
ii) Amounts Lessee receives, or is entitled to receive, for the sale,
disposition, loss, repair, replacement, conversion, or abandonment of Lessee's
stock, equipment, business personal property, and trade fixtures not in the
normal course of the business permitted hereunder;
iii) Amounts received as payment or reimbursement for incidental services
(e.g., postage or freight) so long as the payment from the customer for such
services is reported to the County and bears a reasonable relationship, in the
reasonable discretion of the County, to the cost of providing the services; and
15
iv) Amounts Lessee identifies as point-of-sale discounts, refunds or
customer service adjustments, as long as such discounts, refunds and
adjustments are separately identified and documented and are part of a written
Lessee business policy for such discounts, refunds or customer service
adjustments, which policy is approved in advance by the County.
All revenues excluded under this paragraph shall be reported to the County
and subject to verification and audit as provided herein.
f. Equitable Adjustment. "Equitable Adjustment" shall mean a temporary or
permanent adjustment in the revenue and/or the expense structure of this Lease that
is negotiated by the parties hereto in response to some future change in circumstances
specified herein. An Equitable Adjustment may provide for a net increase or decrease
in the rent, fees or charges or non-monetary obligations. An Equitable Adjustment
shall be the minimum adjustment that is commercially reasonable under the
circumstances.
4. Payments. The payments of the Base Rent, MAG, PO and Additional Charges
required above shall be made and delivered as follows:
a. All payments shall be timely made, without deduction, set-off or escrow of any
kind whatsoever.
b. The monthly installments of Base Rent and MAG as provided above, shall be
due and payable on the first (lst) day of each calendar month for that month during
the Lease term. For example: Base Rent and MAG for September are due September
1st.
If the 1st day of the month is a Saturday, Sunday or County legal holiday, that
payment shall be due on the next succeeding business day.
c. All payments shall be made in the office of the County Treasurer, 506 East
Main Street, Aspen, Colorado, 81611 or at the Airport Administration Office, 0233 E.
Airport Road, Suite A, Aspen, CO 81611.
d. All payments hereunder shall be considered delinquent ff not received by the
5th day of the month due. If the 5th day of the month is a Saturday, Sunday or County
legal holiday, that payment shall be delinquent if not received on the next preceding
business day.
All delinquent payments shall each accrue default interest on any unpaid and delin-
quent balance on the sixth day of every month so delinquent at the rate of two percent
(2%) 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.
e. If Lessee makes any payment to Lessor with a check that fails to clear the bank
on which it is drawn the first time it is submitted, that payment shall not be deemed
made until Lessee delivers to Lessor the amount of the payment (together with any
16
late charges and default interest) in cash or by certified or cashier's check. After the
second time during the Term that a payment check from Lessee fails to clear, Lessor
shall not be required to accept any payments from Lessee other than in cash or by
certified cashier's check.
5. 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 payments by Lessee of all of
its obligations hereunder including, without limitation, the payment of the Base Rent, MAG,
PO, and Additional Charges hereunder as follows:
a. Types of Security. Lessee shall deliver both: a cash Security Deposit of
$1,000.00; and an instrument of performance and payment surety in a form satisfactory
to County, in its sole discretion, in the amount of one-half (1/2) of Lessee's then-
current MAG hereunder.
These requirements may be waived or reduced in writing by the County, in its sole
discretion, for a Lessee with a satisfactory payment or performance history for at least
three (3) years; 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.
It is expressly agreed that such amounts are not an advance payment of rental or a
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.
b. County Use of Required Security. If at any time during the Term hereof, any
of the Base Rent, MAG, PO or Additional Charges shall be overdue and unpaid, or any
other sum payable by Lessee to Lessor hereunder shall be overdue and unpaid, then
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, then 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 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 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.
17
c. County Return/Release of Required Security. No later than 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 by 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.
d. County Lien on Personal Property. In addition to the security interests
referenced above, Lessee hereby grants to the County a security interest in Lessee's
personal property and furnishings on or in the Premises as additional security for
Lessee's obligations hereunder. Said personal property and furnishings shall not be
removed from the Premises without the County's consent until all Base Rent, MAG,
PO or Additional Charges obligations have been satisfied. It is intended by the parties
that this lease shall have the effect of a security agreement upon the aforementioned
personal property and furnishings, and that the County shall have all the rights of a
secured party under the Uniform Commercial Code of the State of Colorado.
6. Lessee Reports. Lessee shall prepare (or have prepared) and deliver to Lessor
complete and accurate reports as follows:
a. Monthly Reports. At the same time that Lessee is obligated to pay its monthly
Base Rent and Minimum Annual Guarantee, Lessee shall provide the Director of
Aviation with an itemized statement showing the Gross Sales and Gross Revenues
attributable to Lessee during the preceding calendar month from the Premises during
said month. Said statement shall be signed and certified as complete and correct by an
official of Lessee authorized to so certify. Such statement shall be on a form required
by the Airport and amended from time to time in the Airport's discretion.
b. Annual Reports. Within sixty (60) days after the end of each Lease Year,
Lessee shall deliver to Lessor a written statement signed by a licensed certified public
accountant or by some other person acceptable to Lessor setting forth the amount of
Lessee's gross sales and Gross Revenues for the preceding Lease Year. The accountant
or other person shall certify that the gross sales and revenues have been computed in
accordance with the definitions contained in this Lease. If the percentage rent for the
Lease Year is more than the total thereof actually paid by Lessee, Lessee shall pay the
balance due to Lessor within thirty (30) days of delivery of the annual statement.
c. Special Reports. Lessee shall submit to County, at County's request, such
other and further reports containing information that is reasonably necessary, in the
discretion of the County, to monitor current Gift Shop operations, to audit or review
past operations or to plan future operations.
7. Lessee Business Records. Lessee shall maintain full and accurate books of account
and records from which Gross Sales and Gross Revenues, as defined herein, the amount and
nature of all business transacted on or through the Premises and the amount of Percentage
Override owed the County hereunder, can be determined and verified, according to standard
and generally-accepted accounting principles and practices and auditing standards.
18
a. Lessee's required books of account and records shall include, without
limitation, legible, true and accurate copies of all written and electronic records and
reports kept in the normal course of Lessee's business.
b. Lessee's financial recordkeeping and reporting system for all business
conducted on or through the Premises or subject to this Agreement shall include,
without limitation, the following:
i) Complete, accurate and legible copies of all cash register tapes, bank
deposits, sales tax reports, sales slips, cash register tapes, credit card invoices,
monthly sales tax returns, sales and disbursement journals, general ledgers,
bank statements, bank books, bank deposit slips, annual federal income tax
returns, state sales tax returns and all Airport-related revenue reports
submitted by Lessee to its parent company(les), if any, and all computer
and/or microfilm or microfiche reproductions of the above.
ii) Adequate financial controls, under generally accepted accounting
principles and practices and auditing standards, to ensure complete and
accurate recording and reporting of all Gross Sales and Gross Revenues.
iii) Any other document or procedure which, in the reasonable discretion
of the County, is necessary or useful to determine or verify Lessee's obligations
hereunder. Such new documents or procedures shall be used or instituted a
reasonable time after written notice thereof has been sent by the County to
Lessee.
c. These books and records shall be maintained on a current basis and shall be
stored for a period of at least thirty-six (36) months from the end of each monthly
period, or for such longer period of time as County reasonably may direct in writing.
The location of these books and records shall be disclosed to the County and, if such
records are not stored within Pitkin County, it shah be Lessee's responsibility, at its
expense, to promptly make such records, upon request, available to County, or its
representatives, in a time, manner and format to the satisfaction of the County, in its
reasonable discretion.
8. County's Right to Audit. The County may conduct audits of Lessee's books of
account and records as follows:
a. Time and Frequency of Audits. The County may conduct audits of Lessee at
any of the following times: annually; at the expiration or termination of the term
hereof; upon a request by Lessee of assignment of its rights hereunder; and upon the
receipt by County of any information that would lead a prudent commercial landlord
to draw a reasonable inference that Lessee is not in full compliance with its financial
obligations hereunder.
b. Manner of Audits. Such audits shall be conducted upon reasonable notice to
Lessee and during Lessee's normal weekday business hours. For purposes of this
Lease and Use Agreement, the annual audit period shall be deemed to commence on
November 1 of each year of the Agreement and to conclude on October 31 of the
Page: 22 ot~ 53
19
ensuing year. County shall hold all information obtained from any such audits in
confidence except: as may be necessary to enforce the County's rights under this
Agreement; as part of any federal state or local tax proceedings; and with respect to
any legal requirements or Court Order to disclose said information.
c. Scope of Audits. In performing said audits, County shall be entitled to review,
and Lessee shall be obligated promptly to provide to the County upon demand
therefor, all of the books of account and records that Lessee is obligated to maintain
pursuant hereto, plus such other records, documents and files in Lessee's possession,
custody or control during the term hereof that the County, (or its auditor), determine,
in their sole discretion, are useful, relevant or necessary to determine or verify the
correct amount of reportable, includable and excludable revenues and Gross Sales and
Gross Revenues attributable to Lessee, and the correct amount of Percentage Override
owed by Lessee to the County, for the period involved.
One Hundred Eighty (180) days after the date all documents requested by the County
have been received by the County, the County shall release Lessee from any liability
for underreporting or underpayment hereunder, unless the County shall have given
Notice, within that period, of any questions, objections or exceptions to the statement
or any claims for inadequate or deficient reporting or payment. Once such notice is
given, the parties shall expeditiously and in good faith cooperate to resolve the matters
contained therein.
d. Results of Audits. Should Lessee fail to maintain the books of account and
records required to be maintained pursuant hereto, or should Lessee fail to deliver and
enable County (or its auditor) to review Lessee'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 Lease and Lessee shall pay, as liquidated
damages for such breach, an additional amount equal to fifty (50%) percent of the
verifiable costs, fees, payments and charges due from Lessee hereunder for the period
in question; provided, however, that Lessee shall only pay these damages for failure to
keep required records if such requirements are reasonable in light of Lessee's business
practices (as such practices may be modified by County requests hereunder) and
generally accepted accounting principles and auditing standards.
If any audit shows percentage compensation and other fees and charges that should
have been paid to the County by the Lessee pursuant to this Agreement were
understated or underpaid for any period involved (including, expressly, revenues
from prohibited or unpermitted transactions, Premises or diverted business), Lessee
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 above, on such underpayment from the time said
underpayment should have been paid to the time said underpayment is fully paid. If
the audit discloses overpayment of the Percentage Override paid to the County by
Lessee, the County shall refund the amount of overpayment to Lessee within thirty
(30) days of said audit.
e. Expense of audits. Generally, the County shall bear the expense of annual,
end-of-term or investigatory audits; however, if the amount of underpayment
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20
disclosed by any audit exceeds exactly two (2.0%) percent of the total Percentage
Override or Additional Charges that was owed by Lessee to the County for the period
involved, Lessee, in addition to paying the County the underpayment owed and
interest accrued thereon shall, within thirty (30) days' Notice by County, reimburse the
County for the cost of the audit not to exceed Fifteen Hundred Dollars ($1,500.00).
An audit done prior to any assignment, conveyance or transfer by Lessee of this Lease
or any rights or obligations hereunder requiring approval of the County as required
herein, shall be at the sole expense of the Lessee.
C. COUNTY RESERVATIONS OF RIGHTS.
Lessee acknowledges that the Airport is a federally-funded public service airport and, as such, has
separate obligations to the Federal Aviation Administration (FAA) and aviation-related uses of the
Airport, which obhgations may take priority over the rights of non-aviation-related Lessees,
Licensees and Permittees.
To that end, County reserves the following rights with respect to the Premises and all uses and
operations to be conducted thereon:
1. County reserves the right to unimpeded access over and across the surface of the
Premises, except for the buildings and other improvements situated thereon; provided, that
County shall not, in the exercise of this reserved right, u~reasonably interfere with Lessee's
use of the Premises. County shall be entitled to enter upon the Premises 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, preventing
waste or loss, responding to emergencies or complaints or enforcing any of County's rights
hereunder.
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 Premises, together with the right to cause in
and around said air space and on the ground such noise as may be inherent in the operation
of aircraft utilizing the Airport.
3. County reserves the right to protect the aerial approaches of the Airport against
obstruction, including the right to prohibit Lessee from erecting, or permitting to be erected or
maintained, any building or other structure or obstruction on the Premises which would, in
the discretion of the County, limit the aeronautical usefulness of the Airport or constitute a
hazard to aviation.
4. County reserves the right to subordinate the provisions of this Lease, without prior
notice to Lessee, to the provisions of any exisl~ng 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 Lease 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
21
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10/19/2004 01;~41
situated on the Premises, the Lessee agrees to modify, relocate or remove any such
improvements or structures as directed by County. If the improvements removed were
lawful and permitted, the County shall reimburse Lessee for the reasonable cost and expense
thereof.
5. County reserves the right, during the time of War or national emergency, to lease the
Airport or any part thereof, including the Premises 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 provisions of this Lease shah be suspended insofar as
such provisions may be inconsistent with the provisions of the lease to the United States
Government.
6. County reserves the right to direct, in its sole discretion, all activities of the Lessee at
the Airport in the event of an emergency condition that is a threat to the public health, welfare
and safety.
7. County reserves the right to grant leases, licenses, uses, permits or rights to other
parties to occupy or operate commercial activities on the Airport so long as such other grants
do not urtreasonably interfere, in the reasonable discretion of the County, with Lessee's
operations.
8. The County reserves the right to direct Lessee's operations in the event that such
operations are unreasonably interfering, in the reasonable discretion of County, with the use
by others of the Airport; e.g., to restrict the use of "public" areas of the Terminal and public-
access curbs, sidewalks and roadways in favor of the public.
9. County reserves the right to further plan, develop, improve, remodel and/or
reconfigure the Airport, including the Premises and existing vehicle and pedestrian traffic
patterns, as County deems appropriate without interference or hindrance by the Lessee, and
County shall have no liability hereunder to Lessee by reason of any interruption to Lessee's
operations on the Premises occasioned by such County activities; provided, however, that
County shall consult in advance with Lessee on such changes. Additionally, possibility of
terminal and airfield closures due to construction, security or bad weather might occur. Good
faith efforts will be attempted by Pitkin County to minimize the effects on the operations.
10. The County reserves the right, in its sole discretion, to enter into agreements for the
financing or re-financing of the Airport and Lessee agrees to cooperate in providing informa-
tion to prospective lenders and in providing estoppel certificates and similar documents, if so
requested.
11. County reserves the right to prohibit any commercial or non-commercial activity by
any party on the Airport, unless that activity has express prior, written permission from the
County.
12. County reserves the right to establish and enforce reasonable rules and regulations for
the conduct of activities and uses permitted herein and also to promulgate minimum stan-
dards 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.
22
13. County reserves the right to refer aH development proposals hereunder through the
established County land-use application/review process, with costs and fees thereof to be
paid by the proposed developer.
14. County reserves the right to inform Lessee of their employee(s)'s misconduct.
D. RELEASE, INDEMNITY AND INSURANCE.
1. Definitions. For purposes of this Section:
a. "Lessee" shall mean: Lessee's business entity and its parent companies,
subsidiaries, joint venturers, lenders, shareholders, directors, officers and employees;
Lessee's agents, representatives, contractors, invitees and licensees; and any other
person whatsoever claiming through Lessee.
b. "Lessor" shah mean: the County of Pitkin (a Colorado home-rule County), the
Aspen/Pitkin County Airport and the officials, employees, agents and representatives
thereof.
c. "Liability" shah mean: the legal obligation to pay compensation to an injured
or aggrieved party.
d. "Loss" shah mean: judgments or awards for money damages (direct and
consequential, general and special), penalties, expenses, costs (including costs of
investigation and defense), fees (including reasonable attorney and expert witness
fees) or payments of money or compensation in any form or kind whatsoever.
e. "Casualty" shall mean: property damage caused by fire, water, snow, ice, wind,
collision, collapse or explosion.
f. "Claim" shah mean: any legal claim, notice of claim, claim for relief, demand,
lien, complaint, cause of action or other legal proceeding to establish legal or financial
liability.
g. "Personal Injury" shall mean: property damage, bodily injury or death.
2. Lessee's Release and Indemnity of Lessor. Lessee shall and hereby does release, dis-
charge, indemnify and hold harmless Lessor from and against liability for any loss in
connection with any casualty claim of Lessee or personal injury claim of Lessee or third
parties arising out of or in connection with Lessee's occupancy and use of the Premises. This
release and indemnity shah apply to the intentional acts or negligent acts, errors or omissions
of Lessee, but shall not apply to loss caused by the intentional acts or the gross negligence of
Lessor.
Further, Lessee shall investigate, process, respond to, adjust, provide defense for and defend,
pay or settle all claims, demands, or lawsuits related to its acts, errors and omissions
hereunder at its sole expense and shah bear all other costs and expenses related thereto, even
if the claim, demand or lawsuit is groundless, false or fraudulent.
SILVIA DAVIS PITKIN DOUNTY CO R 0.00 O 0.00
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3. Lessee's Required Insurance. To fund this indemnity, in whole or in part, the Lessee
shall secure and maintain for the term of its contractual relationship with the County such
insurance policies, from companies licensed to do business in the State of Colorado, as will
protect itself, the County (with the County named as additional insured), and others as speci-
fied, from claims for bodily injuries, death, personal injury or property damage, which may
arise out of or result from the Lessee's intentional or negligent acts, errors or omissions.
For the purpose of this section reference is made to Required Clauses section of insurance
attached hereto and made part of this Agreement as Exhibit "A'.
4. County Insurance Obligations. County shall procure fire and extended coverage
insurance and boiler insurance covering the Terminal for the full replacement value thereof.
County shall maintain such insurance in full force and effect during the term of this Lease and
shall furnish Lessee, at Lessee's request, with a copy of a certificate evidencing such insurance.
Lessee shall take no action inconsistent with the maintenance of such insurance, nor shall
Lessee take any action which would cause the cost of such insurance to the County to
increase.
E. OPERATION AND MAINTENANCE OF PREMISES.
1. Maintenance and Repair. With respect to the maintenance and repair of the Airport
Terminal and related land areas and improvements, including the Premises, the County and
the Lessee shall have the following obligations:
a. County's Obligation. County, at its expense, shall maintain and keep in good
condition and repair the following: the foundation; the structure; the exterior walls
and the interior demising wails (except store fronts, plate glass windows, doors, door
closure devices, window and door frames, molding, locks, and hardware, and except
painting or other treatment of wall surfaces within or facing the Premises or other
leasable space); and facilities outside the Premises and other leasable areas, and the
roof of the Building; provided, however Lessor shall not be required to make any
repairs occasioned by the negligence of Lessee, its agents, employees, contractors,
subtenants, licensees, concessionaires or customers, which repairs shall be made by
Lessee.
In the event that the Premises become in need of repairs within these Lessor's
obligations, Lessee shall give immediate written notice thereof to Lessor and Lessor
shall not be responsible in any way for failure to make any such repairs until a
reasonable time shall have elapsed after delivery of such written notice. Lessor's
obligation hereunder is limited to repairs specified in this Section only, and Lessor
shall have no liability for any consequential damage or injury arising out of any
condition or occurrence causing a need for such repairs. Lessor shall have access to
the Premises as necessary or convenient to make repairs required by this Section.
b. Lessee's Obligation. Lessee, at its expense, shall make all needed repairs and
replacements to the Premises, including replacement of cracked, broken glass or
evaporative cooler unit, except for any replacements required to be made by Lessor
above, and shall keep all plumbing units, pipes and connections within the Premises
in good repair and free from obstruction and protected against ice and freezing.
24
Lessee shall furnish, maintain and replace all electric light bulbs, tubes and tube
casings within the Premises. If any repairs and replacements required to be made by
Lessee hereunder are not made within twenty days after written notice to Lessee,
Lessor may, at its option, make such repairs without liability to Lessee for any loss or
damage which may result to its stock or business by reason of such repairs, and Lessee
shall pay to Lessor as Additional Charges the actual cost of such repairs plus 10% of
said cost to cover Lessor's administrative costs.
c. Lessee 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.
2. Utilities.
a. County's Obligation. County shall, at its expense, provide heat, light,
electricity, ventilation, water, sewer connections and trash removal from the non-
exclusive common areas of the Terminal.
b. Lessee's Obligation. Lessee shall, at its expense, provide all such and other
utility services and charges (including its business telephone) to the Premises. Lessee
shall permit no liens or claims against the Premises arising from unpaid or disputed
utility bills and hereby does indemnify the County against all costs (including
attorney's fees) or liabilities arising from such liens or claims.
c. If, during this Lease term, the Airport is required to increase its water, sewer,
gas or electric service and such increase requires a capital contribution from the
Airport, Lessee, if it consumes the increased utility, agrees to pay a pro-rated,
reasonably-amortized portion of said increase, which amount will be set by
agreement or binding arbitration.
3. Modifications, Alterations and Improvements. The Premises may be modified,
altered or improved by the parties under the following procedures, terms and conditions:
a. By County: The County, after reasonable notice to and comment from Lessee,
may make modifications, alterations or improvements to the Premises that do not
result in permanent unreasonable impairment of the Premises or interference with the
conduct of Lessee's business thereon and therefrom without liability of any kind to
Lessee and Lessee shall co-operate with the making of same.
b. By Lessee: Lessee shall make no modifications, alterations or improvements to
the Premises without the prior written consent of County and upon such terms and
conditions as County shall require, in its sole discretion.
Any modifications, alterations or improvements to the Premises with respect to which
County has given its written consent, shall be done at Lessee's sole cost and expense
and Lessee shall not cause or permit any statutory claims or liens to be filed against the
Premises or against the Terminal or the Airport or other improvements thereon by
reason thereof and hereby does indemnify the County against all costs (including
attorney's fees) and liabilities arising from such claims or liens.
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Any such improvements or alterations to the Premises made by Lessee shall become
the property of the County upon the termination of the Lease and shall be surrendered
with the Premises and as a part thereof, unless otherwise agreed upon in writing
between the County and the Lessee.
4. Snow Removal. With respect to the maintenance and repair of the Airport Terminal
and area, the County and the Lessee shall have the following obligations:
a. County's Obligation. County shall, at its expense, and subject and secondary
to County's obligation to maintain clear public airfield facilities and runways on the
Airport, remove the snow from those areas of the Premises which are open to public
use in the same manner, sequence and extent as County performs snow removal on
portions of the Airport in general; provided, that County shall not be required to move
or relocate parked vehicles to accomplish such snow removal.
b. Lessee's Obligation. Lessee shall, at the direction of the County, move or
relocate its vehicles to assist County (or its contractors) in County's snow removal
obligations set forth above.
5. Delivery. Lessee shall contact and communicate with the delivery vendors that the
Airport's rules and regulations regarding the parking and delivery procedures must be
observed and followed.
6. Casualty Release. Lessee hereby releases Lessor from liability for fal]Lrtg ceiling
materials, damaged floor coverings, electricity, plumbing, gas, water, steam, sprinkler or other
pipe and sewage system or by the bursting, running or leaking of any tank, washstand, closet
or waste to other pipes in or about the Premises, or the Building or which they are a part, and
for any damage occasioned by water being upon or coming through the roof, or vent, or
otherwise for any damage arising from any acts or neglect of other Airport LLPs or other
occupants of the Building or of adjacent property, or the public, nor shall Lessor be liable in
damages or otherwise for any failure to furnish, or interruption of service of any water, gas
electricity, heated water, steam and/or chilled water, caused by fire, accident, riot, strike,
labor disputes, acts of God, or the making of any repairs or improvements or other causes
beyond the control of Lessor.
F. ASSIGNMENT.
1. Assignment Prohibited without County Consent. An assignment by Lessee of this
Lease, or any estate or interest herein, or any right or obligation of Lessee hereunder, or of any
substantial interest in the ownership, management or financing of Lessee's business entity, is
hereby expressly prohibited, except with the prior, express, written consent of Lessor, which
consent shall not be unreasonably withheld.
a. An "assignment" hereunder shall include any transaction, by Lessee's act or
omission or by operation of law, creating rights or obligations in or affecting this Lease
that did not exist on the effective date of this Lease (or were not disclosed to Lessor
before that date), however styled, including, as examples and without limitation, a
sublease, license, sale, grant, conveyance, transfer, encumbrance, mortgage or pledge.
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b. A "substantial" interest hereunder shall include, as examples and without
limitation, the following:
i) The transfer, encumbrance or other disposition of ownership, assets,
management, operation or control, in one or a series of related transactions, of
an interest of fifteen percent (15.0%) or greater in Lessee's business entity,
whether corporation, limited liability company, general partnership, limited
partnership or sole proprietorship;
ii) Merger, consolidation, reorganization, transfer or other change of
Lessee's corporate or proprietary structure;
iii) An assignment to or by a receiver or trustee in any Federal or State
bankruptcy, insolvency or other proceedings;
iv) The sale or transfer of all or substantially all of the assets of Lessee, with
or without specific assignment of this Lease;
v) 7he creation of any interest or encumbrance for security purposes,
except a purchase-money security interest in inventory.
2. Standards and Procedures to Obtain County Consent.
a. The determination by Lessor of whether a proposed assigrLment is reasonable
under this Section may include consideration of factors including, without limitation:
i) Whether Lessee is or has been in default under any of the terms or
provisions of the Lease.
ii) Whether the proposed assignee can demonstrate acceptable levels of
relevant, successful business and financial qualifications and experience.
iii) Whether the assignment will be in compliance with established Airport
management goals and preferences including, without limitation, the Airport's
federal Disadvantaged Business Enterprise (DBE) goals and "existing operator"
or "owner/operator" preferences.
iv) Whether any new business use for the Premises is being proposed and,
if so, what impacts the new use may have on the Terminal and the Airport.
v) Whether the proposed assignment is a technical assignment, in which
the Lessee/assignor (and its guarantors and sureties) will be relieved of further
liability hereunder, or a technical sublease, in which the Lessee/sublessor and
the sublessee both continue to be bound by the terms of the Lease.
vi) Whether, if the proposed assignee or sublessee, or any stockholder,
general partner or member thereof or venturer therein, is a corporation or a
limited liability company, any individuals with interests therein have agreed to
27
personally and unconditionally guarantee, in a form satisfactory to Lessor, the
performance of all Sublease obligations.
b. As part of a proposed assignment transaction, Lessor may reasonably require
from Lessee or the proposed assignee, as applicable, evidence to a level that would be
satisfactory to a commercial lender of the following:
i) Proof of Financial Resources. The proposed assignee or sublessee and
all required guarantors may be required to submit financial statements
prepared by state-licensed certified public accountants that establish, to
Lessee's reasonable satisfaction, financial ability to perform Lessee's obligations
and otherwise to succeed in the proposed business.
ii) Proof of successful, relevant business experience.
iii) Proof of business, financial and credit reputation of ownership and
management principals.
iv) Reimbursement by Lessee to Lessor of all costs and expenses (including
reasonable attorney's fees) incurred by Lessor in considering and approving
Lessee's request.
v) An audit of and full payment of all Base Rent, MAG, PO, and
Additional Charges to the effective date of the proposed txansactinn.
3. Effect of Previous Assignments. Consent by Lessor to one or more previous
assignments shall not operate as a waiver or restriction of Lessor's rights as to any subsequent
assignments.
4. Validity of Assignment without County Consent. Any attempted assignment by
Lessee in violation of the terms and covenants of this Section shall be void and a material
breach of this Lease.
5. Lessee Acknowledgement. Lessee acknowledges that this Section F. was freely
negotiated and is reasonable in all of the circumstances of this Lease.
G. DEFAULT AND TERMINATION
The standards and procedures for declarations of Default(s) under this Lease and termination of
Lessee's possessory rights under this Lease and/or of the Lease itself shall be as follows:
1. Incidents of Default by Lessee. The following acts or omissions by Lessee are agreed
to be Incidents of Default:
a. Failure to make full and timely payments of rent, Minimum Annual
Guarantees, percentage fees or other fees or charges due and payable hereunder; or
$ILVIA DAVIS PITKIN COUNTY CO R 0.00
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28
b. The creation, maintenance, failure to correct or sufferance of a dangerous or
hazardous condition on or emanating from the Premises, or committing or allowing
any waste or damage to the Premises; or
c. Failure to obtain, maintain in full force and effect and/or provide proof of all
required types, forms and a mounts of insurance; or
d. Failure to provide and maintain current and required performance and
payment surety and proof thereof; or
e. Making an assignment, conveyance or transfer of its rights and obligations
hereunder without the consent of County; or
f. Making or becoming subject to a voluntary or involuntary petition for
receivership or bankruptcy, declaration of insolvency or assignment for the benefit of
creditors; or
g. Failure to comply with any other obligation under this Lease and Use
Agreement.
2. Notice of Default. Upon the occurrence of an Incident of Default by Lessee
hereunder, Lessor shall issue a written Notice of Default to Lessee (and its surety, if
applicable), which Notice shall specify the Incident(s) of Default asserted and a cure(s)
therefor acceptable to Lessor.
3. Lessee's Right to Cure. Lessee shall have the right to cure an Incident of Default,
unless Lessee has abandoned the Premises, in which case Lessee shall be deemed to have
waived any right to cure. As a condition precedent to this right to cure, Lessee must provide
Notice, promptly after the effective date of the Notice of Default, to Lessor of Lessee's
intention to cure and whether it agrees with the County' proposed cure or has a
counterproposal. The time periods for cure, after the effective date of any Notice of Default,
shall be:
a. Within three (3) business days if the default is maintenance of a hazardous
condition or failure to maintain and/or prove required insurance coverage(s); or
b. Within ten (10) calendar days if the default is failure to make full and timely
payments hereunder; or
c. Within twenty (20) calendar days if the default is in the performance of any
other obligation or conditions to be performed under the provisions of this Agreement.
If, in the discretion of Lessor, a cure acceptable to Lessor is promptly undertaken and
diligently prosecuted by Lessee and the cure required cannot reasonably be completed within
the foregoing time periods, Lessor may, upon timely request and proof of such mitigating
circumstances by the Lessee, extend the period to cure by a reasonable time.
In the event of multiple Incidents of Default, the cure periods above shall be concurrent, not
consecutive.
SILVIA DAVIS PITKIN COUNTY cO [~ 0.00 D 0.00
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4. Lessor's Right to Cure. If Lessee should fail to cure any default hereunder within the
time herein permitted, or if a dangerous or emergency situation exists at any time, Lessor,
without being under any obligation to do so and without thereby waiving such default, may
make such payment and/or remedy such other default for the account of Lessee (and enter
the Premises for such purpose), and thereupon Lessee shall be obligated, and hereby agrees,
to pay as Additional Charges, all reasonable costs, expenses and disbursements (including
reasonable attorneys' fees) incurred by Lessor in taking such remedial action. Such action
taken by Lessor may include commencing, appearing in, defending, or otherwise
participating in any action or proceedings, and paying, purchasing, contesting, or
compromising any claim, right, encumbrance, charge or lien with respect to the Premises.
5. Lessor's RiKhts Upon an Uncured Default. If the Premises have been abandoned by
Lessee or if an Incident(s) of Default noticed as provided herein remains uncured after the
cure period specified or extended, Lessor, at its option and in its sole discretion, may there-
after either terminate Lessee's possessory rights under this Lease or terminate the Lease itself
and all of Lessee's rights hereunder or both in sequence, by Notice to the Lessee.
6. Termination of Lessee's Possessory Rights. If Lessor gives Notice of Termination of
Lessee's Possessory Rights, the following substantive and procedural elements shall apply:
a. Lessor shall re-take possession. Lessee shall immediately and peacefully
surrender the Premises to the Lessor and, if Lessee fails to do so, Lessor, without
prejudice to any other remedy which Lessor may have for possession, damages, or
arrearages in rental, may enter upon and take possession of the Premises through legal
process or, if no individual person is then actually on or about the Premises and breach
of the peach can be avoided, without use of legal process. Thereafter Lessor may
possess, hold and use the Premises and may alter all locks and other security devices
thereon.
Unless Lessor so elects as provided, no such termination of Lessee's possessory rights
shall cause a termination of this Lease or otherwise relieve Lessee's liability and
obligations under this Lease, and such liability and obligations shall survive any such
termination of possessory rights.
b. In the event of any such termination of Lessee's possessory rights, Lessee shall
continue to pay to the Lessor all monthly payments of all Base Rent, MAG and PO,
and any Additional Charges required to be paid by Lessee to Lessor during the
remainder of the Term until the date of expiration of the Term, adjusted as follows:
i) Plus all such amounts accrued prior to repossession;
ii) Plus expenses of Lessor arising from repossession;
iii) Minus amounts received by Lessor through re-letting,
In no event shall Lessee be entitled to any excess of any rental obtained by reletting
over and above the rental herein reserved. Actions to collect amounts due by Lessee to
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30
Lessor as provided in this Section may be brought from time to time, on one or more
occasions, without the necessity of Lessor's waiting until the expiration of the Term.
c. Lessor may sub-let or re-let. At any time after such re-taking of possession by
Lessor, Lessor may sublet or relet the Premises or any part thereof, in the name of the
Lessee or otherwise for such term (which may be greater or less than the balance of the
term of this Lease) and on such conditions as the Lessor, in Lessor's absolute
discretion, may determine, and may collect and receive the rents therefor.
i) In the event that Lessor shall have taken possession of the Premises
pursuant to the authority herein granted, then Lessor shall have the right to
keep in place and use all of the trade fixtures, leasehold improvements,
furnishings and equipment of the Premises, including that which is owned by
or leased to Lessee, at all times prior to any foreclosure thereon by Lessor or
repossession thereof by a lessor thereof or third party having a lien thereon.
ii) Lessor also shall have the right to remove from the Premises (without
the necessity of obtaining a writ, warrant, bond or other legal process) all or
any portion of such trade fixtures, leasehold improvements, furnishings,
equipment and other property located thereon and place same in storage at any
premises within the County in which the Premises are located, and in such
event, Lessee shall be liable to Lessor for reasonable costs incurred by Lessor in
connection with such removal and storage and shall indemnify and hold
Lessor harmless from all loss, damage, cost, expense and liability in connection
with such removal and storage.
iii) Lessor also shall have the right to relinquish possession of all or any
portion of such property to any person ("Claimant") claiming to be entitled to
possession thereof who present to Lessor a copy of any instruments
represented to Lessor by Claimant to have been executed by Lessee (or any
predecessor of Lessee) granting Claimant the right under various
circumstances to take possession of such property, without the necessity on the
part of Lessor to inquire into the authenticity of said instrument's copy of
Lessee's or Lessee's predecessor's sigrmture thereon and without the necessity
of Lessor's making any nature of investigation or inquiry as to the validity of
the factual or legal basis upon which Claimant purports to act; and Lessee
agrees to release Lessor from any liability and to indemnify and hold Lessor
harmless from all cost, expense, loss, damage and liability incident to Lessee's
relinquishment of possession of all or any portion of such furniture, fixtures,
equipment or other property to Claimant.
d. The rights of Lessor herein stated shall be in addition to any and all other
rights which are created elsewhere in this Lease or which Lessor has or may hereafter
have at law or in equity; and Lessee stipulates and agrees that the rights herein
granted Lessor are commercially reasonable.
7. Termination of the Lease. If Lessor gives Notice of Termination of the Lease, the
following substantive and procedural elements shall apply:
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31
a. Lessor may elect to terminate this Lease by Notice of Termination of the Lease
to Lessee either: immediately after an uncured default; or at any time following the
termination of Lessee's possessory rights.
b. Upon such Lease termination (or in the event a court shall otherwise construe
this Lease as terminated following Lessee's loss of its possessory rights hereunder),
Lessor shall have and exercise all rights of ownership of the Premises, and Lessee shall
pay to the Lessor in one lump sum the sum of all Base Rent, MAG and PO, and
Additional Rental and other indebtedness to Lessor accrued to date of such
termination, plus, as and for liquidated damages for Lessee's default, an amount equal
to the present value of the total Base Rent, MAG and PO that would have become due
during the remainder of the Term but for termination of this Lease, less any amounts
actually received or due to Lessor as a result of re-letting and the amount of rental loss
for the same period that Lessee proves could have been avoided through the exercise
of such mitigation efforts as are legally required of Lessor. If such sum is not paid to
Lessor on the termination date, said sum shall bear interest at the Default Rate until
paid. For purposes of this section, "present value" shall be computed by discounting
the amount in question to present worth at a discount rate equal to one percentage
point above the discount rate then in effect at any commercial bank then with an office
in Pitkin County.
8. Not a Surrender. Exercise by Lessor of any one or more remedies herein granted or
otherwise available shall not be deemed to be an acceptance surrender of the Premises by
Lessor, whether by agreement or by operation of law, it being understood that such surrender
can be effected only by the written agreement of Lessee and Lessor. No alteration of locks or
other security devices and no removal or other exercise of dominion by Lessor over the
property of Lessee, or others at the Premises shall be deemed unauthorized or constitute a
conversion or a Lease termination. Lessee hereby consents, after any Event of Default, to the
aforesaid exercise of dominion over Lessee's property within the Premises. All claims for
damages by reason of such re-ei~try and/or repossession and/or alteration of locks or other
security devices are hereby waived, as are all claims for damages by reason of any distress
warrant, forcible detainer proceedings, sequestration proceedings or other legal process.
9. Property Left on Premises. Any property of Lessee, or of anyone claiming under, by,
or through Lessee, which is left on the Premises more than fifteen days after expiration of the
Term or termination of possessory rights shall be conclusively deemed abandoned, and Lessor
may keep, use, remove, store, sell, destroy, discard, or otherwise deal with it in Lessor's
absolute discretion without liability of any sort to Lessee or anyone claiming under, by, or
through Lessee.
10. Costs of Default. In case of any Event of Default, Lessee shall also be liable for and
shall pay to Lessor, in addition to any sum provided to be paid above, all costs, expenses and
fees associated with providing Notice of the Default and enforcing Lessor's rights hereunder
including, without limitation, the following: the reasonable costs of removing and storing or
otherwise disposing of Lessee's or other occupant's property; the reasonable costs of cleaning,
repairing, altering, remodeling or otherwise putting the Premises into condition acceptable to
a new Lessee or Lessees; advertising costs; all reasonable expenses incurred by Lessor in
enforcing or defending Lessor's rights and/or remedies, including reasonable attorneys' fees;
and a sum equal to $100 for each hour that any employee or agent of Lessor, spends in
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32
connection with obtaining the right to relet, rendering suitable for reletting, and attempting to
relet the Premises or any part thereof.
11. Lessor's Duty to Relet. In the event of termination of possessory rights or
repossession of the Premises for an Event of Default, Lessor shall not have any greater
obligation to relet or attempt to relet the Premises, or any portion thereof, or to collect rental
on the Premises after reletting than is required by applicable law with respect to mitigation of
damages; and in the event of reletting, Lessor may relet the whole or any portion of the
Premises for any period, to any Lessee, and for any use and purpose.
12. Default by Lessor; Lessee's Remedies. In the event of any default by Lessee, Lessee's
exclusive remedy shall be an action for damages, but prior to any such action Lessee will give
Lessee written notice specifying such default with particularity, and Lessee shall thereupon
have 20 days (or such longer period as may be necessary in the circumstances) in which to
cure any such default. Unless and until Lessee fails so to cure any default under such notice,
Lessee shall not have any remedy or cause of action by reason thereof. All obligations of
Lessor hereunder will be construed as covenants, not conditions; and all such obligations will
be binding upon Lessor only during the period of its ownership of the Building and not
thereafter.
13. Lessor's Remedies. In addition to the remedies expressly set forth herein, Lessor shall
have such other and further legal and equitable rights and remedies as may be provided by
law, including injunction, specific performance, and damages.
H. GENERAL PROVISIONS
1. Coordination with other Airport Users. County and Lessee acknowledge that the
County has, and Lessee may have, rights and obligations arising from various third-party
agreements with other Airport users. County and Lessee 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 conflict with the rights
and obligations of the various parties hereunder. If either County or Lessee shall make a
demand upon the other for cooperation hereunder, the party making the demand shall first
provide copies of any such agreements to the other party.
2. Surrender of Premises/Lessee's Personal Property. Subject to the security Interest set
forth above, on or before the date and time of the expiration or termination of the Initial or
Renewal Term of the Initial or Renewal Term of this Lease, Lessee shall: surrender the
Premises to County in good condition and repair, ordinary wear and usage excepted; and
remove all of Lessee's personal property, trade fixtures, equipment or improvements
removable by prior agreement with County from the Premises; and repair any damage to the
Premises caused by such removal. Any personal property of Lessee, or anyone claiming
under Lessee, which shall remain upon the Premises at the expiration or termination of this
Lease shall be deemed to have been abandoned and may be retained by County as County's
property or disposed of by County in such manner as County sees fit without compensation
to any party.
3. Compliance with Applicable Laws and Regulations. In connection with its
occupancy and use of the Premises and the conduct of its operation thereon, the Lessee shall:
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a. Comply with all applicable laws, rules and regulations of the United States of
America (including, especially, the U.S. Department of Transportation and the Federal
Aviation Administration), the State of Colorado and the County of Pitkin (including,
without limitation, the Airport, the Sheriff's Department, the Public Works
Department and the Community Development Office) and any and all departments
and agencies thereof, as the same may now exist or may be hereafter promulgated or
amended from time to time.
i) Although Lessee is not an aeronautical operator and, as such, is not
directly regulated by the FAA, Lessee acknowledges that the FAA with respect
to operation, financing and development of the Terminal heavily regulates the
Airport.
b. Present applicable Airport regulations include, without limitation:
i) Airport Regulations, Title X, Pitkin County Code;
ii) Airport Operations Plan and Emergency Plan;
iii) Airport Security Plan;
iv) Commercial traffic loop and public traffic patterns and regulations, as
they may be amended from time to time;
v) Airport Financial Policy (Resolution 87-56-A).
Lessee acknowledges that Pitkin County has the continuing authority to enact general
legislation pursuant to its power to protect the health, welfare and safety of its citizens,
as well as the continuing authority, in its executive capacity, to enact Airport
regulations.
c. Comply with the notification and review requirements of Part 77 of the FAA's
Federal Aviation Regulations (FARs) in the event any future structure or building is
planned for the Premises, or in the event of any planned modification or alteration of
any present or future structure or building situated on the Premises.
d. 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 Part 21 of the
Regulations of the U.S. Department of Transportation, and shah 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
shah 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.
e. Comply with the requirements for commercial tenants of the Americans with
Disabilities Act (ADA).
34
f. Comply with the requirements for Airport tenants of the Airport's program
and goals to increase opportunity for Disadvantaged Business Enterprises (DBE).
g. Pay all business/personal property taxes assessed against Lessee's personal
property situated upon the Premises and all other taxes lawfully assessed against
Lessee by reason of Lessee's use and occupancy of the Premises in the conduct of
Lessee's business thereon.
h. Comply with the rules and practices as set forth in the current Pitkin County
Airport Security Plan as amended from time to time. Any fines assessed against
County by the FAA as a result of the Lessee's failure to comply with the provisions of
this paragraph or other intentional or negligent acts or omissions of Lessee, its
employees or agents will be paid promptly upon demand to the County by the Lessee.
i. This agreement is subject to the requirements of the U.S. Department 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 of any concession agreement, management, contract, or subcontract,
purchase or lease agreement, or other agreement covered by 49 CFR Part 26, subpart
G.
j. 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 it enters and cause those businesses to similarly include the statements in further
agreements.
4. Lessee's Personal Property/Trademarks. All personal property, equipment,
furnishings, decorations and trade fixtures placed upon the Premises by Lessee shall be at
Lessee'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.
Lessee 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, tradenames, trademarks,
logos or slogans to be used by it in its operations under or in any way connected with this
Agreement. Lessee 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 operations of Lessee under or in any way connected with this
Agreement.
5. Substitution of Pitkin County Airport Facilities. County may build or provide, or
cause to be built or provided, substitute facilities at the Airport. In the event of the
construction and occupancy of new or substitute facilities at the Airport during the term of
this Agreement, the following shall apply:
a. County agrees to set aside space for a Gift Shop operation for use of Lessee.
35
R 0.00 0 0.00 . -
i) Lessee agrees to relocate operations from the Premises to the new or
substituted facilities at its own expense and to thereafter conduct its operations
there from. The new or substituted facilities shall be comparable to the
previous facilities or better in terms of size, Premises and finish, all in the
reasonable discretion of the County.
ii) Upon such relocations, County shall have the right to demolish or use
the existing terminal building or other buildings or facilities located on the
Premises as it sees fit.
iii) The fees provided for in this Lease shall be su~ect to Equitable
Adjustment to reflect the substitution of space for the existing terminal
building and faciliiies located on the Premises. In the event County and Lessee
are unable to agree to such adjustment, then such adjustment shall be deter-
mined by a qualified real estate appraiser selected by the mutual agreement of
County and Lessee, with the appraisal costs to be shared equally by them.
iv) Except as modified by the substitution of facilities and the fee
adjustment as provided for herein, this Lease shall continue in full force and
effect without change or modification until the expiration or termination of the
Lease term.
b. If, in the opinion of County, the Premises shall be wholly or partially required
for other operaiions of the Airport or if the use of the Premises should be changed or
abated by reason of other operations of the Airport, then the following shall apply:
i) County shall substitute for the Premises another area at the Airport of
equivalent size and with comparable facilities and shall, at County's expense,
provide thereon facilities reasonably comparable to the facilities existing on the
Premises, including, but not by way of limitation, the buildings, structures,
paved areas, vehicle parking areas, utilities, and other improvements, either by
the relocations of the existing facilities and/or by the construction of new
facilities.
ii) Lessee agrees to accept such other area at the Airport and the facilities
to be provided thereon by County in substitution for the Premises and agrees
to promptly relocate its operations to such other area at its expense.
iii) County shall schedule the preparation of such substituted area and
shall effect such substitution and relocations of the Lessee's operations in such
manner as shall not result in the unreasonable interruption of the conduct of
Lessee's operations.
6. Destruction of Buildings and Other Improvements. If the buildings and other
improvements upon the Premises shall be rendered untenantable by fire or other casualty,
County shall, at County's cost (subject to and secondary to Lessee's obligation, if any, to
provide fire and casualty insurance for the Premises, as provided herein), restore and repair
the same to tenantable condition as speedily as possible and the fees and charges for the
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occupancy of the untenantable space shall be abated, 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 Lessee, its
agents, employees, invitees or Lessees.
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 Lessee shall agree to
contribute to the costs of such restoration and repair in an amount equal to such deficiency.
7. Rights of Seizure. County shall not be liable in any respect to Lessee in the event of
any seizure of all or any part of the Premises, 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 fees provided hereunder shall abate during such
period of seizure to the extent that such seizure shall interfere with Lessee's ability to conduct
its business upon the Premises.
8. Relationship of Parties. It is the intent and agreement of the County and the
Company that they shall have the relationship respectively of Licensor/Lessee 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 Lessee upon the Premises or for any
indebtedness incurred by Lessee in the operation of its business on the Premises or for the
claims of third parties against Lessee in the conduct of its business.
In addition, County shall not be liable in any manner to the Lessee for any damages the Lessee
may incur due to the inability of the County to deliver possession of the Premises, or any part
thereof, to the Lessee for reasons beyond the reasonable control of the County.
9. Non-Liability of County's Agents and Employees. No official agent, or employee of
County shall be personally liable to Lessee in the event of any default or breach hereunder by
County.
10. Notices. All notices required or authorized to be given hereunder shall be In writing
and shall be served upon the party entitled thereto either by personal delivery to such party
or by certified mail, return receipt requested, addressed to such party at its address appearing
on the signature page of this Lease (with a copy delivered to its Airport Terminal booth), 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 on the date so delivered 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.
11. Representations of Lessee. Lessee represents and warrants to County as follows:
a. Lessee, and those individuals executing this Lease on behalf of Lessee,
represent and warrant that they are familiar with Section 18-8-301, et seq. of the
37
Colorado Revised Statutes (Bribery and Corrupt Influences) and Section 18-8-401, et
seq. of the Colorado Revised Statutes (Abuse of Public Office) and that no violations of
the provisions thereof are present.
b. Lessee, and those individuals executing this Lease on behalf of Lessee,
represent and warrant that to the best of their knowledge no employee of Pitkin
County has personal or beneficial interest whatsoever in this Lease or in the business
to be conducted upon the Premises by the Lessee.
12. Entire Agreement/Merger. This Lease contains the entire agreement of the parties and
there have been no oral or written promises, representations or agreements, either express or
implied, except as expressly set forth herein. Any and all prior agreements or understandings
between the parties are expressly agreed to have merged herein.
13. Severability. The provisions of this Lease shall be severable and the invalidity of any
provision hereof shall not affect the validity of any other provision hereof.
14. No Oral Modifications. This Lease 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 Premises by Lessee, shall only be modified or
amended by a writing approved by an Ordinance of the Board of County Commissioners at a
duly-noticed public meeting.
15. No Waiver. The failure of either party hereto to exercise any right or remedy
hereunder shall not be deemed a waiver thereof or a waiver of the right to exercise the same at
any future time, or the waiver of any other right or remedy hereunder. No waiver by either
party of any right or remedy hereunder shall be effective unless in writing signed by the
party.
16. No Presumption Against Drafting Party. The parties agree that this Agreement was
negotiated by the parties hereto mutually, that each has had adequate opportunity to review
this Agreement and to consult with legal and other counsel, 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 there from.
17. Attorney's Fees. If either party to this Agreement incurs attorney's fees and/or costs
in connection with the declaration of a Default hereunder or any other legal proceeding to
interpret, protect or enforce any of its rights hereunder, the party prevailing in such
proceeding shall be entitled to recover its reasonable attorney's fees and costs in connection
with such proceeding.
18. Governing Law/Venue. This Lease 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.
19. Binding Effect. This Lease shall be binding upon and shall inure to the benefit of the
parties hereto and to their properly qualified successors and assigns.
38
SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00
20. Captions. The captions and such headings in this Lease are for organization purposes
only and shall not be construed to have independent substantial meaning; the captions shall
be construed in the context of the entire Agreement.
21. Time of the Essence. In any provision herein, regarding a date or time, within which
something is to be done, the time stated is agreed to be of the essence.
22. Duplicate Originals; Recorded Summary. This Lease shall be executed in duplicate
originals, with one original to be held by each party. Either party, at its expense, and after
reasonable advance notice to the other, may file a duplicate original Lease or an accurate
summary thereof in the real estate records of the Pitkin County Clerk & Recorder.
23. Authority of Lessee's Representative. As an inducement to the County to execute this
Agreement, the undersigned officer of Lessee represents that he/she is expressly authorized
to execute this Agreement and to bind Lessee to the terms and conditions hereof and
acknowledges that the County is relying on this representation, authorization and execution.
24. Suspension of Terminal Operations. If Lessor intentionally suspends
operations at the Terminal for more than seven days in a row in order to conduct
construction, remodeling, or expansion of the airport, Lessee shall be entitled to an Equitable
Adjustment as that term is defined herein. This paragraph shall not apply to closures of the
Terminal that result from anything other than construction, remodeling, or expansion of the
airport, and shall not apply to any federally-mandated suspension of operations at the
Airport.
39
5(33209
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COUNTY: LICENSEE:
The Board of County Commissioners
of Pitkin County, CO
Dorothea Farris, Chairperson
A :
/
Coun~A'cldresses:
Director of Aviation
0233 E. Airport Rd., Suite A
Aspen, CO 81611
cc: County Manager
506 E. Main Street
Aspen, CO 81611
NOSI-Aspen, L.L.C. dba
Aspen ~ercantile
News & Gift Shops International,L.L.C.
its ~anager
Date..~' q-lO-OCii
Corporate Secretary
Seal
Licensee's Address:
For receipt of mailed notices
hereunder:
P.O. Box 7608
San Antonio, 1I 78207
RECOMMENDED FOR APPROVAL:
Hilary ~etcher Smith, County Manager
Date: ~.?.~, · o~
John ~ly, Coun¥~'~m~mey )
APPROVED BY RISK:
Risk Management
Ja~lwood, ~.A."B., Dir. of Aviation
Date: '~"~:~:::~ 0 ~"
503209
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O 0.00
40
EXHIBIT "A"
REQUIRED CLAUSES
For purposes of these Required Clauses, "Contractor" means NGSI- Aspen, L.L.L. dba Aspen Mercantile.
Contractor shall be subject to the following provisions:
COMPLIANCE WITH PROCUREMENT CODE AND APPLICABLE STATE CONTRACTING
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 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 1NTEREST
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
Pitldn 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 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 person associated therewith, as an inducement for the award of a subcon-
tract 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
41
Contractor shall comply with all applicable local, state and federal "anti-kickback" statutes or regula-
tions.
E. Conflict of Interest Prohibited. No official, officer, employee or representative of the County
during the term of this Agreement or one (1) 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 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 therefor.
G. Conspicuously means written in such special or distinctive format, print, or mariner 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 OPPORTUNH¥ AND DISADVANTAGED/MINORITY/WOMEN
BUSINESS ENTERPRISES (DBE/MBE/WBE)
A. Pursuant to local, state and/or federal anti-discrimi~_ation 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 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
disadvantaged, minority and wom~n 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 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, minorities and women by job category within its organization. Where the
Contractor has filly (50) or more employees or it is participating in contracts with the County, which
42
exceed Fifty-Thousand ($50,000.00) Dollars, an Affirmative Action 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 nondiscrimination/
affirmative action provisions of any resultant contract, Pitkin County shall impose 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 part.
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:
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) alter 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 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 therefor, and the effective date of such termination.
The effective date shall not be earlier than the date of handqtelivery, 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 of cancellation, 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
terminated by the notice of termination.
43
(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 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 County.
F. Remedies. The Contractor shall have the right of appeal from any determination made by the
County under "Cancellation or 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 finally 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 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 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.
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.
6. INDEMNITY
503209
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44
A. The Contractor (including, by definition here and hereinafter, 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 or omissions; provided, however, that such indemnity shall not be construed as
an indemnity for bodily injury or property damage arising fi-om 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.
7. INSURANCE
A. In whole or in part, the Contractor shall secure and maintain for the term of its contmctuai
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 Contractors acts, errors or omis-
sions. The following insurance coverage, at or above the limits indicated and including such endorse-
ments as are indicated by an "X", are required:
( 1 ) Statutory Workers' Compensation: Colorado st atutory minimums
(2) Commercial General Liability - ISO 1998 Form or equivalent
(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
X Independent Contractors and Subcontractors
X Broad Form Property Damage
X Personal Injury
(3) Business Auto Coverage:
Combined Single Limit Liability (each accident)
Coverage to include (place X by applicable provisions):
Any Auto
All Owned Autos
Hired Autos
Non-Owned Autos
$1,000,000.00
503209
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45
Garage Liability
(4) Special Coverages (check as appropriate and insert amount):
X (1) Performance Bond I/2ofthetermyearMAG
Labor and Material
Payment Bond
(2) Professional Errors and Omissions
(3) Aimraff Liability
__(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
EVIDENCE OF INSURANCE SHOULD BE SENT TO:
Pitkin County
C/o Edna Adeh
0233 E. Airport Road, Suite A
Aspen, Colorado 81611
Fax: 970-920-5378
B. 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 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 coverages 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) 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 recourse against
the County of Pitkin for payment of any premiums or for assessments under any form of policy.
503209
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46
(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: "ail 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 fiReen (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. Pitldn 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 Ride residents of Colorado with a preference to residents of the
County where the work is performed.
9. RECO~S
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 final 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
ail provisions of the Agreement and applicable law.
10. THIRD PAR'lIES
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.
11. AGREEMENT MADE IN 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.
12. 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.
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SILVIA DAVIS PITKIN COUNTY C0 R 0,00 D 0.00
47
I3.
14.
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 the Colorado
Governmental Immunity Act, 24-10-10I, 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 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 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.
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SILVIA DAVIS PITKIN COUNTY CO g 0.00 D 0.00
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505209
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D 0.00
EXHIBIT "C"
ASPEN MERCHANTILE- COST BREAKDOWN
Estimate Sept. 3,2004
Lobby shop
Retail interior space 263 sq. fL
Storage - office 26 sq. ft.
Added additional retail space 58 sq. fL
Remodeling approximately
60 lineal feet of casework
Gate shop
Retail interior space 142 sq. ft
Remodeling approximately
20 lineal feet of casework
TOTAL REMODELED SQ. FT.
two exterior wails 14 sq. ft.
335 sq. ft.
two exterior walls
157 sq. ft.
492 SQ. FT.
1. Demolition & removal
2. Screening & protection
3. Framing - walls and ceiling
4. El~t~ic. al
5. Eleetrie~al fixtures
Glass
7. Enlxy door
8. Casework
9. Sheetrock
10. Pain
11. Flooring
12. Ceiling
13. Extexior factade
14. Cleaning
$ 2,000
$ 1,000
$ 7,000
$ 2,500
$ 5,000
$ 2,000
$ 5,500
$20,000
$ 1,500
$ 1,000
$ :3,000
$ :5,000
$ 5,000
$ 1,500
ROUGHTOTAL
INDEX
for the
Aspen/Pitkin County Airport
Terminal Gift Shops
Lease and Use Agreement
2004 - 2010
SECTION A
PREMISES, TERM, USES, REQUIREMENTS, RESTRICTIONS
Demise of Premises
a. Description of Premises
b. Map of Premises
c. Restricted entry/occupancy
d. Additional Premises
Acceptance of Premises
Leasehold Improvements
Term
a. Initial term
b. No Renewal term
c. Continued Occupancy w/Consent of County
d. Continued Occupancy w/o Consent of County
e. Obligation of County at end of term
Use of Premises
a. Required Uses
b. Right to Operate Gift Shop
c. Mediation in Case of Negotiation Impasse
d. Prohibited Uses
Requirements of Lessee's Operations
a. Duty to Maintain Operations
b. Overall Quality of Operations
c. Service
d. Products and Services
e. Prices
f. Hours of Operation
g. Trade Fixtures, Furnishing & Equipment
h. Signage
i. Environmental Quality Improvement Plan
j. Requirements of Insurers
k. Customer Comment Recording & Complaint
Resolution Procedure
1. Security Requirements
Restrictions on Lessee's Operation
Notice of Non-Compliance or Satisfactory
Performance
Page
5
5
6
6
6
6
6
7
7
7
7
7
7
7
7
8
8
8
9
9
9
9
9
10
10
10
10
10
11
11
11
11
13
.-%
SECTION B
BASE RENT, MINIMUM ANNUAL GUARANTEE OR PERCENTAGE OVERRIDE,
ADDITIONAL FEES AND CHARGES, PAYMENTS, AND REPORTS AND AUDITS.
3.
4.
5.
Rent, Fees and Charges
a. Base Rent
b. Minimum Annual Guarantee or Percentage
Override
1) MAG for Initial Term
2) Percentage Override
c. Additional Charges
Calculation and Payment of MAG and PO
Definitions
Payments
Performance and Payment Security
a. Types of Security
b. County Use of Required Security
c. County Return/Release of Required Security
d. County Lien on Personal Property
Lessee Reports
a. Monthly Reports
b. Annual Reports
c. Spedial Reports
Lessee Business Records
County's Right to Audit
a. Time & Frequency of Audits
b. Manner of Audits
c. Scope of Audits
d. Results of Audits
e. Expense of Audits
13
13
13
13
13
14
14
14
16
17
17
17
18
18
18
18
18
18
18
19
19
19
20
20
20
SECTION C
COUNTY RESERVATION OF RIGHTS
21
SECTION D
RELEASE, INDEMNITY AND INSURANCE
2.
3.
4.
Definitions
Lessee's Release & Indemnity of Lessor
Lessee's Required Insurance
County Insurance Obligations
23
23
24
24
2
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10/lg/2004 01:30t
SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00
SECTION E
OPERATION AND MAINTENANCE OF PREMISES
Maintenance and Repair
a. County's Obligations
b. Lessee's Obligations
c. Lessee shall not
Utilities
a. County's Obligations
b. Lessee's Obligations
Modifications, Alterations and Improvements
a. By County
b. By Lessee
Snow Removal
a. County's Obligation
b. Lessee's Obligation
Delivery
Casualty Release
24
24
24
25
25
25
25
25
25
25
26
26
26
26
26
SECTION F
ASSIGNMENT
2.
3.
4.
5.
Assignment Prohibited w/o County Consent
Standards and Procedures to Obtain County Consent
Effect of Previous Assignments
Validity of Assignment w/o County Consent
Lessee Acknowledgement
26
27
28
28
28
SECTION G
DEFAULT AND TERMINATION
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Incidents of Default by Lessee
Notice of Default
Lessee's Right to Cure
Lessor's Right to Cure
Lessor's Rights Upon an Uncured Default
Termination of Lessee's Possessory Right
Termination of the Lease
Not a Surrender
Property Left on Premises
Cost of Default
Lessor's Duty to Relet
Default by Lessor; Lessee~s Remedies
Lessor's Remedies
28
29
29
30
30
30
31
32
32
32
33
33
33
503209
SECTION H
GENERAL PROVISIONS
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
Coordination w/other Airport Users
Surrender of Premises/Lessee's Personal Property
Compliance w/Applicable Laws & Regulations
Lessee's Personal Property/Trademarks
Substitution of Pitkin County Airport Facilities
Destruction of Buildings & Other Improvements
Rights of Seizure
Relationship of Parties
Non-Liability of County's Agents & Employees
Notices
Representations of Lessee
Entire Agreement/Merger
Severability
No Oral Modification
No Waiver
No Presumption Against Drafting Party
Attorney's Fees
Governing Law/Venue
Binding Effect
Captio~zs
Time of the Essence
Duplicate Originals; Recorded Summary
Authority of Lessee's Representative
Suspension of Terminal Operations
Signature pages
33
33
33
35
35
36
37
37
37
37
37
38
EXHIBITS
"Exhibit A'
"Exhibit B'
"Exhibit C'
Required Clauses
Map of Premises
Leasehold Improvement Plans & Schedule
38
38
38
38
38
38
38
39
39
39
39
39
40
41-48
Attachment
Attachment
4
ASPEN./PITKIN COUNTY AIRPORT
TERMINAL GIFT SHOPS
LEASE AND USE AGREEMENT
2004--2010
NGSI-ASPEN, L.L.C. dba ASPEN MERCANTILE
THIS LEASE AND USE AGREEMENT, is by and between the BOARD OF COUNTY
COMMISSIONERS OF PITKIN COUNTY, COLORADO, a Colorado home-rule County ("County" or
"Lessor"), as Lessor/Permittor, and NGSI-Aspen, L.L.C. dba Aspen Mercantile ("Lessee"), as
Lessee/Permittee.
WHEREAS, County is the owner, operator and sponsor 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 facilities, a general aviation terminal and
facilities, certain areas for public use, certain areas for exclusive and non-exclusive commercial use
(subject to lease, license or permit) and certain reserved areas; and
WHEREAS, County has the authority to operate and manage the Airport, to lease and license
the occupancy and use of Airport land areas, buildings and facilities, and to permit and regulate
commercial activities thereon, pursuant to, inter alia, C.R.S. Sections 41-4-101 et seq., 30-11-107, as
amended, and Section 8.7 of the Pitkin County Home Rule Charter; and
WHEREAS, Lessee is engaged in the business of a commercial gift shop operator and it
desires to occupy and use some of the areas and facilities of the Airport for that purpose;
NOW, THEREFORE, for and in consideration of the mutual covenants, terms and conditions
contained herein, the County and Lessee do mutually undertake and agree as follows:
A. PREMISES, TERM, USES, REQUIREMENTS, RESTRICTIONS
1. Demise of Premises. In consideration of Lessee's payment of all rent and other money
due hereunder, and of Lessee's full and faithful performance of and compliance with all other terms,
conditions and covenants hereof, and subject to the rights reserved by County herein, County hereby
grants to Lessee, and Lessee hereby accepts from County, the right to occupy and use that portion of
the land areas and improvements of the Airport identified as the Terminal and Secured Boarding Gift
Shops (hereinafter, the "Premises"), depicted on Exhibit "B," and described as follows:
a. Description of Premises:
i) The exclusive occupancy and use of the Terminal Gift Shop
(280 sq. ft.) and Secured Boarding area Gift Shop (120 sq. ft.).
The Premises shall include the sliding glass door, display window, locks, keys,
plate glass, ceiling, floor covering and utility fixtures and outlets.
ii) As appurtenances to the exclusive-use space, the limited, non-exclusive
use for ingress, egress, and other purposes specifically noted, of the following:
SILVIA.__ DAVIS PITKIN COUNTY CO I~ 0,00
503210
Page; 6 of' 50
10/19/2004 01
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1) Areas immediately outside the access door of the shop, for
the location of moveable, temporary sales display fixtures, so long as
such displays are approved by the Director of Aviation or his/her
designee.
2) Entryways, exitways, driveways and internaI circulation
areas appurtenant to the above-described areas, subject to rules
and regulations in cormmon with other users of Lessee's classification.
3) Areas made available to the public (waiting rooms,
concessions, restrooms), subject to rules and regulations in
common with other users of Lessee's classification.
4) Employee parking spaces, upon request by Lessee and if
then-available, subject to numbers of spaces, fees, costs, rules and
regulations established by the County (and payable directly to the
Airport).
b. Map of Premises. The Premises is depicted on Exhibit B attached hereto and
incorporated herein by this reference. The County and Lessee acknowledge that such
Exhibit may not be to scale and shall be replaced, upon the mutual agreement of the
parties, at such time as scale maps based on actual survey data become available.
c. Restricted entry/occupancy. Any entry on, occupancy of or use of
Airport land areas or improvements by Lessee that is not expressly demised and
described by this Lease shall be and is hereby prohibited, except by separate
express prior written permission from the County and under such terms and
conditions as the County, in its sole discretion, may determine.
d. Additional Premises. If, during the term of this Agreement, additional
Premises are made available or permitted by Pitkin County for occupancy
and use by Lessee, Lessee and County shall enter into good faith negotiations for
the commercially reasonable fees or charges to be paid by Lessee prior to such
additional use and occupancy.
2. Acceptance of Premises. The Lessee agrees that the Premises have been inspected by
Lessee at the beginning of this Lease term and are accepted and initially will be occupied by
Lessee on an "as is" basis.
3. Leasehold Improvements. Lessee, at its sole expense, shall undertake and complete
capital improvements to the Premises (of a type, quality and cost to the satisfaction of
the County) in the first six months of the Initial Term hereof, as follows:
i) See attached Exhibit "C'.
ii) General refurbishment, if mutually agreed to by the parties, to a total cost of a
minimum of $60,000.
4. Term. The term of the occupancy and use of the Premises by Lessee shall be as
follows:
a. Initial Term. The Initial Term of this Lease shall be five (5) years and
eleven (11) months, commencing at 6:00 a.m. MST, November 1, 2004, and
expiring at 10:00 p.m. MST, September 30, 2010, unless earlier terminated.
At the end of the f~rst two years (November 1, 2004 - October 31, 2006),
the County will review and evaluate the performance of the Lessee and
provided the Lessee has met all terms and conditions of the lease will
notify Lessee of the continuation of this lease into the second two-year
phase by written correspondence.
ao2.
The County will conduct another review of the Lessee's
performance at the end of the second phase (November 1, 2006 -
October 31, 2008) and provided the Lessee has met all
terms and conditions of this lease will notify Lessee of the continuation
of this lease into the last phase (November 1, 2008 - September 30, 2010)
by written correspondence.
b. No Renewal Term. There shall be no renewal of this lease beyond September
30, 2010, except the parties may negotiate a renewal term as a part of the Equitable
Adjustment procedure set forth in Paragraph A.5. hereof.
c. Continued Occupancy with Consent of County (Holdover). If Lessee
remains in occupancy of the Premises after the expiration of Initial or Renewal
terms with the consent of County, Lessee's interest in the Premises from and
after that date shall be deemed to be month-to-month, pursuant to the terms and
conditions of this Lease, or as the parties may otherwise agree in writing, or, if
the parties shall fail to agree in a reasonable time, upon such other terms and
conditions as may be established by the Airport, in its sole discretion, upon ten
(10) days' notice to Lessee.
d. Continued Occupancy without Consent of County. If Lessee remains in
occupancy of the Premises without the consent of County, it shall have the
obligation to pay Base Rent and MAG for such period at a rate of 200% of the last
effective rate hereunder, and shall continue to adhere to all the requirements of this
lease.
e. Obligation of County at end of term. Upon the expiration or termination of
the Initial Term, Lessee acknowledges that there is no other or further right,
representation or expectation of renewal or extension of this Lease and that the
Premises thereafter will be subiect to the County's stated intent and obligation to
expose the Premises and rights granted hereunder to public competitive selection
process at the time.
5. Use of Premises. Lessee's use of the Premises shall be subject to the following:
a. Required Uses. Lessee shall occupy and use the Premises solely for the
5032(D9
purpose of operating the Terminal Gift Shops, as defined herein.
b. Right to Operate Gift Shop. The parties acknowledge that the County is
currently considering expansion plans for the terminal building that might take place
during the term of this lease. In the event that either one of the ex2sting designated gift
shop location is affected by that change, then the Lessor shall enter into good faith
negotiations with the Lessee to determine equitable arrangements. Further, the
County hereby reserves the right to allow other Airport lessees, licensees or permittees
(LLPs) to sell certain gift-shop-type items including, without limitation, items sold in
vending machines and items that carry an LLP's logo and are incidental to its business
(e.g., mugs, hats and t-shirts).
c. Mediation in Case of Negotiation Impasse. A good faith negotiation to
determine the Equitable Adjustment first shall be undertaken by Lessee and the
Airport. If agreement is not reached thereby, the matter shall be submitted to a
neutral, third-party mediator. This mediator shall be mutually selected and
compensated by the Lessee and the Airport and shall be, unless expressly agreed
otherwise, a certified public accountant practicing in the Roaring Fork Valley
who has substantial experience representing small retail businesses. The
mediator shall establish the procedures for the mediation (e.g. required
submittals, deadlines, manner of presentations), but it shah end with a written
report and recommendation by the mediator. The mediation shall be non-
binding, but if either of the parties disagrees with the report, it shall have the
following remedies: If Lessee disagrees, it may terminate the lease upon 90
days' notice; If the Airport disagrees, it may terminate the Renewal Term, or any part
thereof remaining, upon 90 days notice.
d. Prohibited Uses. Lessee shall not occupy, use, permit or suffer the Premises or
any part thereof to be occupied or used as follows:
i) For any use, activity, display or product not specifically permitted
herein; any such use shall be and is hereby prohibited, except as by separate
express prior written permission from the County and under such terms and
conditions as the County, in its sole discretion, may determine.
ti) For any occupancy, use, business, activity or purpose that is unlawful o~
illegal or in any way in violation of any present or future statutes or ordinances
or formally-adopted rules, regulations, requirements, orders, directives of the
United States of America, State of Colorado, County of Pitkin, City of Aspen, o~
other lawful authority whatsoever.
iii) For any activity deemed by the Lessor to be hazardous, or in such
manner as to constitute a nuisance of any kind, or which will in any way
increase the rate of fire, casualty or liability insurance upon the Terminal or the
Airport.
iv) For any auction, fire or bankruptcy sale, without Lessor's consent.
8
v) For any purpose or in any manner that would result in a violation of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Lessee
hereby indemnifies and holds harmless the County from and against any
violation of the ADA attributable to Lessee.
6. Requirements of Lessee's Operations. Lessee, in the conduct of its operations, shall
be subject to the following requirements:
a. Duty to Maintain Operations. Lessee hereby undertakes an affirmative
obligation, for the term of this Lease, as it may be renewed as provided above, to
operate the Terminal Gift Shops at times and in a manner described in this Lease.
b. Overall Quality of Operations. Lessee shah operate the Gift Shops in a first-
class manner, with a scope of products and to a level of quality equal to or better than
gift shop operations of similar size and traffic volume at first-class U.S. destination
resort airports.
c. Service. The Gift Shops shah be operated and managed in an efficient,
businesslike and courteous manner, with at least the following elements:
i) Owner/Operator. Ail persons holding or controlling ownership or
management interests of thirty percent (30%) or greater shah work regular
shifts in the shop if and when an employee is not available.
ii) Employees. Lessee shall provide adequately trained and supervised
personnel in sufficient numbers to provide information to potential customers
and to arrange for and complete sales transactions. Lessee's employees shall be
safety-conscious, environmentally-sensitive, helpful and courteous at all times,
consistent with the highest standards of customer relations practices, and be
dressed in a manner reflecting this airport and conununity.
iii) Supervision. Employees shall be adequately supervised, or have access
to operational policies and procedures, to respond to customer complaints and
Airport inquiries.
iv) Trah-fing. Lessee will participate if and when an airport customer
service enhancement training become available.
d. Products and Services.
i) Lessee shah at all times maintain a stock of items for sale in sufficient
amounts, types and quality.
ii) Lessee shall maintain the fullest possible range of "necessity items,"
personal health and comfort items commonly needed by air travelers.
iii) Lessee shall not permit the sale of pornographic materials or literature
on site.
58326,9
Page: 12 of 53
iv) Lessee shall be permitted to offer hmited candy and snack items in the
display area with the following restrictions: no heated or refrigerated
products; no sale of beverages; the sale of chewing gum (non-bubble gum) will
be permitted subject to change, by written notice, contingent to maintenance
requirements.
e. Prices. Prices for items determined by the Airport to be "necessity items" (e.g.,
medicines, disposable diapers, personal hygiene products) shall be no more than the
Manufacturers Suggested Retail Price (MSRP) for such items.
Lessee shall offer an employee discount, of no less than ten percent (10%) (except for
MSRP items, newspapers, and stamps) to employees of Airport LLPs. Discounted
sales will be accounted for separately and not included in gross sales determination
(except discounted sales of individual items with marked price, prior to the discount
or promotional deduction, of $50.00 or greater, which shall be included in "gross
receipts").
f. Hours of Operation. Lessee shall open and remain open for business and be
adequately equipped, provisioned and staffed to serve the market demand, seven (7)
days a week from 6:00 a.m. to the last departure of the day, depending on the season.
In recognition of the fact that Airline flight schedules and the exact tourist "seasons"
will vary somewhat throughout the term of this Lease, Lessee shall make adjustments
to meet actual market demand and Airline flight schedules.
g. Trade Fixtures, Furnishing and Equipment. Lessee shall provide sufficient
trade fixtures, furnishings and equipment to conduct high quality gift shop operations
as described herein.
h. Signage. Lessee shall identify the shop by signs or logos in numbers, size,
color, design, content and type as approved in advance in writing by the County.
Environmental Quality Improvement Plan (EQIP). The County's stated goal
is to plan for the reduction or elimination and continually reduce or eliminate environ-
mental degradation caused by the operations of Airport's lessees, licensees and
permittees (LLPs) in all areas including, without limitation: pollution by CO, C02,
CFCs, particulates, and other internal combustion engine emissions; traffic congestion;
gasoline consumption; and solid waste.
It is the express intention of the County that all Airport LLPs strictly comply with aH
environmental rules and regulations and be sensitive to all present and future environ-
mental 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.
Lessee acknowledges that the County considers the following EQIP to be a material
element of this Lease and a breach of obligations thereunder to be a material breach.
10
Until the expiration or termination of this Lease, Lessee shalI diligently accomplish
and/or comply with an Airport EQIP as follows:
i) Promptly after the execution of this Lease, Lessee agrees to institute the
following operational practices:
1) Chloroflourocarbons (CFCs). No products containing CFCs are
to be sold or used in operations or maintenance.
2) Waste Minimization. Lessee shall take all steps that are
commercially available to: reduce the amount of packaging of products
purchased and sold (and to ensure that such packaging is recyclabIe); to
re-use materials; and to recycle all materials.
3) Hazardous materials. Lessee shall not permit the use of or
storage on the Premises of any hazardous materials, including those
defined as such by state and federal law.
4) Energy conservation. Lessee shall take all reasonable steps to
reduce energy consumption on or concerning the Premises.
5) Auto emissions. Lessee shall take ali steps to reduce motor
vehicle emissions and traffic congestion with respect to product
deliveries and employee transportation including, by way of example,
providing employees with free or discounted RFTA bus passes for
transportation to and from work.
6) Trash. All shop's trash must be deposited in the airport
dumpster. Lessee shall not permit the accumulation of its trash at the
exit doors or around the dumpster.
j. Requirements of Insurers. Lessee shall, at its sole cost and expense, comply
with any and all requirements pertaizzing to the Premises of any insurance company
necessary for the maintenance of reasonable fire, casualty and public liability
insurance covering the Terminal and the Airport.
k. Customer Comment Recording and Complaint Resolution Procedure. Lessee
shall establish and maintain a system for documenting and recording ail customer
comments, including compliments and complaints, whether oral or written, and for
the prompt, appropriate and businesslike resolution of all complaints.
1. Security Requirements. Lessee shall adhere to aH Transportation Security
Administration (TSA) and airport security regulations.
7. Restrictions on Lessee's Operations. Lessee, in the conduct of its operations, shall be
subject to the following restrictions:
a. Lessee shall not display or store any items in or about the Premises that are not
for sale.
5(33209
1I
b. Lessee shall not place any objects, displays or signs upon the Premises, except
of such design, content and structure as shall be approved by County, provided that
County's approval shall not be unreasonably withheld. Any sign permitted by County
shall, in addition, at ali times comply with all applicable Airport policies, rules and
regulations.
c. Lessee (along with its successors, assigns, parent, child, and sister companies,
and any other affihated businesses) shall not conduct Transactions or establish other
Locations, as defined below, elsewhere on the Airport or elsewhere within Pitkin
County (including the City of Aspen and the Town of Snowmass Village), or within
the incorporated boundaries of the Town of Basalt (as the same may be changed
during the term of this Agreement) or the shopping areas of E1 Jebel, except as may be
separately and expressly permitted as provided herein.
Lessee acknowledges that the intent and effect of this section is to prohibit Lessee from
conducting any gift shop business within Pitkin County, the Town of Basalt and E1
Jebel, except reportable business from the Airport as expressly permitted herein. If
Lessee proposes to conduct Transactions or establish a Premises prohibited by this
Section, it shall first apply to the Director of Aviation with a full description of the
proposed Transaction(s) and/or Premises(s). The Director of Aviation shall then
determine, in his reasonable discretion, whether the proposed Transaction(s) or
Premises(s) is intended to or will divert business from the Airport Premises, whether
the proposal is otherwise in compliance with this Agreement and to what extent the
proposal will impact the Airport Premises. If the proposal is in compliance with this
Agreement (by not being, by way of example and without limitation, a diversion of
business from the Airport), the Director of Aviation shall consent in writing to the
proposal and establish such reasonable terms, conditions and fees as are commen-
surate with the proposal's impact on the Airport.
d. Lessee shall not knowingly or willfully divert or permit the diversion of
business from its herein-Leased Airport Premises with the intent of evading Airport
payments, regulations, restrictions, requirements, fees or charges.
All revenues derived from the conduct of business prohibited or restricted by this
Section shah be includable for purposes of percentage of Gross Revenue calculations
and payments pursuant to this Agreement.
e. Lessee shall not hold or control, directly or indirectly, any rights or obligations
in the management, operations, premises, inventory, ownership, voting or financing ot
any other Airport LLP or entity doing business on, at or through the Airport including
expressly, any company with a Premises within Pitkin County, the Town of Basalt or
E1 Jebel; provided, however, that upon full disclosure by Lessee of all such rights or
obligations, the County will consent, in its reasonable discretion, to the existence and
enforcement of such rights and obligations that either do not affect the County's
interests heremlder in the promotion of competition and the avoidance of revenue
diversion, or that are made subject to such reasonable terms and conditions as are
necessary to protect County's interests. For purposes of this section, "Lessee" shall
include all natural persons, corporations or other business entities holding or control-
ling, directly or indirectly, any rights or obligations in Lessee's management,'
operations, premises, inventory, ownership, voting or financing.
12
5ILVIR DRVI$ PITKIN COUNTY CO R 0.00 D 0.00
8. Notices of Non-Compliance or Satisfactory Performance. In the event that County
comes to believe that Lessee is not fully and faithfully in compliance with the terms and
conditions of this Lease and, in the County's discretion, such non-compliance is deemed not,
by itself, to rise to the level of an Incident of Default hereunder, County may issue a Notice of
Non-Compliance to Lessee on a form established by the Airport. Lessee agrees to promptly
undertake such action as may be reasonable and appropriate to remedy the situation giving
rise to any such complaints and/or any operational deficiencies noted by County. If the
circumstances that are the basis for the Notice are not resolved to the Airport's satisfaction as
provided in the Notice, the fact of and content of such Notice(s) may be used in future
procurements, or in responding to inquiring from third parties concerning Lessee.
If Lessee has been a satisfactory operator, it is entitled to receive, upon its request at the end of
any Lease year, a Notice of Satisfactory Performance on a form established by the Airport.
B. BASE RENT, MINIMUM ANNUAL GUARANTEE OR PERCENTAGE OVERRIDE,
ADDITIONAL FEES AND CHARGES, PAYMENTS, AND REPORTS AND AUDITS
1. Rent, Fees and Char~es. The rent, fees and charges for the occupancy and use Of the
Premises for the term of this Lease shall be as follows:
a. Base Rent. The Base Rent for the Gift Shops space shall be based on airline
standard annual terminal rent. That amount will be reviewed and re-evaluated every
year and the new rates will be announced on or by January 1st of each year. This
amount must be multiplied by the two shops sizes of 280 and 120 sq. ft. per shop (one
in the terminal building and one in the secured board area), divided by twelve (12)
and paid in advance by the 1st day of the month in monthly payments.
i) Base Rent Increase. The Base Rent may be increased by the County at
the same time the annual airline terminal rent is adjusted, upon thirty (30)
days' notice.
b. Minimum Annual Guarantee or Percentage Override. In addition to the Base
Rent described above, Lessee shall pay a Minimum Annual Guarantee (MAG) and an
annual Percentage Override (PO) of the Lessee's annual "Gross Revenues", all as
defined herein.
i) The Minimum Annual Guarantee (MAG) for the Term of this
Agreement is $195,250. In specific, $33,000 for years I to 5 and $30,250 for the
remaining 11 months. Increases in MAG will be equivalent to the annual
percentage increase/decrease (calendar Year) in enplanements from the prior
year, but never below the MAG numbers specified in this paragraph.
ii) The Percentage Override shall be the greater of 11% of sales or
$33,000 (years 1-5), $30,250 (11 months).
iii) For purposes of this Agreement, an "operations year" for the
Minimum Annual Guarantee shall be Nov. i through Oct. 30 annually.
c. Additional Charges. In addition to the Base Rent, MAG and PO described
above, Lessee shall pay Additional Charges, as and when applicable, as follows:
i) Advances, costs, fees and expenses incurred by County in connection
with or arising from a default by Lessee, as provided below.
ii) Such rent, fees or charges established for occupancy and use of addi-
tional Premises as provided herein.
iii) Any Administrative costs, fees or charges for assignments requested by
the Lessee to be paid by Lessee to Lessor.
iv) Any other costs, fees or charges to be paid by Lessee to Lessor
hereunder.
2. Calculation and Payment of MAG and PO. T~ae payments of Minimum Annual
Guarantee and Percentage Override amounts sham be calculated as follows:
a. On or before the 1st day of each month in addition to the rent payment Lessee
shall pay to the County an amount which is one-twelfth (1/12th) of the current
Minimum Annual Guarantee. Lessee agrees to submit by the 20th day of each month a
statement showing the Lessee's Gross Revenues for the preceding month, said
statement to be in form approved or required by the Airport Director and the County's
Finance Director and signed and certified to be complete and accurate by an employee
of the Lessee authorized to make such a certification.
b. Reconciliations of the percentage override fee that may be due shall take place
on or before the thirty first (31) day of December after completion of each term.
c. Immediately upon Lessee's receipt of revenues from its activities hereunder,
such funds representing payments owed to County hereunder (e.g., Base Rent, MAG,
PO and Additional Charges), shah be vested in and become the property of the County
and Lessee shall hold and be responsible for said funds as a Trustee thereof until the
same are delivered to the County.
3. Definitions. Definitions for the purposes of this Agreement, including the calculation
of the Percentage Override, shall be as follows:
a. "Gift Shop products or services" sham mean merchandise or services that Lessee
is required or permitted to sell or provide at or from the Premises in the ordinary
course of business.
b. "Transaction" shall mean one or more of the following actions or conditions:
the ordering of and receipt of merchandise for resale; the storage of and preparation of
merchandise for sale; the on-site display or advertising of merchandise and services
· for sale; the arrangement for payment or receipt of payment (by cash or credit
transaction) for such sale; the delivery of gift shop merchandise; or the return thereof
by the customer.
503209
14
/7
c. "Location" shall mean a place: where gift shop merchandise is received from
suppliers, stored, displayed for sale, delivered or prepared for dehvery to customers;
or, where Lessee or its employees are present to conduct a transaction(s) relating to
Lessee's business and/or do transact such business; or, where Lessee's logo is dis-
played; or, that is advertised as a place for such transactions to take place; or, that is
equipped for such transactions with, without limitation, a computer terminal/printer,
credit card imprinter, or business telephone, FAX or telex; or, where gift shop sales are
arranged or conducted. For purposes of this Lease, the "Premises" are a "Location"
hereunder.
d. "Gross Sales" as used in this Lease shall mean the full amount of the actual
sales price of all merchandise or services sold for cash or credit in or from the Premises
by Lessee or any permitted sub-lessees or sub-licensees and all amounts received by
Lessee, or which Lessee is entitled to receive, from transactions on, from or through
the Premises or to persons who have deplaned at the Airport and for all other services
and activities performed by Lessee in, at, upon, from or through the Airport in
connection with its gift shop concession and operating privileges on the Airport.
The figure for gross sales will include deposits not refunded to customers, orders of
any kind received or filled at the Premises, receipts from vending machines located
upon the Premises, and any other receipts which Lessee ordinarily would credit to its
business. Each credit or installment sale will be treated as a sale for the full price in the
month it is made, and there will be no deductions for uncollected or uncollectible
accounts or bad debts.
Gross Sales to the Lessee shall be deemed received at the time the sales, lease or service
transaction occurs giving rise to Lessee's right to collect said monies, regardless of
whether said transaction was conducted in person, by telephone, by wire (FAX, telex,
etc.), by mail or by any other method of information transmission, whether the
transaction was for cash or credit, and ff for credit, regardless of whether the Lessee
ultimately collects the monies owed for said transaction from the customer involved.
e. "Gross Revenues" shall mean the amount of money on which the County's
Percentage Override is based and shall be calculated as "Gross Sales" minus the
following deductions:
i) Federal, state or local sales taxes separately stated and collected from
customers;
ii) Amounts Lessee receives, or is entitled to receive, for the saie, ~ z
disposition, loss, repair, replacement, conversion, or abandonment of Lessee's ~ ~
stock, equipment, business personal property, and trade fixtures not in the ~ ~
normal course of the business permitted hereunder;
iii) Amounts received as payment or reimbursement for incidental services
(e.g., postage or freight) so long as the payment from the customer for such
services is reported to the County and bears a reasonable relationship, in the
reasonable discretion of the County, to the cost of providing the services; and
15
iv) Amounts Lessee identifies as point-of-sale discounts, refunds or
customer service adjustments, as long as such discounts, refunds and
adjustments are separately identified and documented and are part of a written
Lessee business policy for such discounts, refunds or customer service
adjustments, which policy is approved in advance by the County.
All revenues excluded under this paragraph shall be reported to the County
and subject to verification and audit as provided herein.
f. Equitable Adjustment. "Equitable Adjustment" shall mean a temporary or
permanent adjustment in the revenue and/or the expense structure of this Lease that
is negotiated by the parties hereto in response to some future change in circumstances
specified herein. An Equitabie Adjustment may provide for a net increase or decrease
in the rent, fees or charges or non-monetary obligations. An Equitable Adjustment
shall be the minimum adjustment that is commercially reasonable under the
circumstances.
4. Payments. 7he payments of the Base Rent, MAG, PO and Additional Charges
required above shall be made and delivered as follows:
a. All payments shall be timely made, without deduction, set-off or escrow of any
kind whatsoever.
b. The monthly installments of Base Rent and MAG as provided above, shall be
due and payable on the first (1st) day of each calendar month for that month during
the Lease term. For example: Base Rent and MAG for September are due September
1st.
If the 1st day of the month is a Saturday, Sunday or County legal holiday, that
payment shall be due on the next succeeding business day.
c. Ail payments shall be made in the office of the County Treasurer, 506 East
Main Street, Aspen, Colorado, 81611 or at the Airport Administration Office, 0233 E.
Airport Road, Suite A, Aspen, CO 81611.
d. All payments hereunder shall be considered delinquent if not received by the
5th day of the month due. If the 5th day of the month is a Saturday, Sunday or County
legal holiday, that payment shall be delinquent if not received on the next preceding
business day.
All delinquent payments shall each accrue default interest on any unpaid and delin-
quent balance on the sixth day of every month so delinquent at the rate of two percent
(2%) 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.
e. If Lessee makes any payment to Lessor with a check that fails to clear the bank
on which it is drawn the first time it is submitted, that payment shall not be deemed
made until Lessee delivers to Lessor the amount of the payment (together with any
16
late charges and default interest) in cash or by certified or cashier's check. After the
second time during the Term that a payment check from Lessee fails to clear, Lessor
shall not be required to accept any payments from Lessee other than in cash or by
certified cashier's check.
5. 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 payments by Lessee of all of
its obligations hereunder including, without limitation, the payment of the Base Rent, MAG,
PO, and Additional Charges hereunder as follows:
a. TYpes of S~curity. Lessee shall deliver both: a cash Security Deposit of
$1,000.00; and an instrument of performance and payment surety in a form satisfactory
to County, in its sole discretion, in the amount of one-hail (1/2) of Lessee's then-
current MAG hereunder.
These requirements may be waived or reduced in writing by the County, in its sole
discretion, for a Lessee with a satisfactory payment or performance history for at least
three (3) years; 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.
It is expressly agreed that such amounts are not an advance payment of rental or a
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.
b. County Use of Required Security. If at any time during the Term hereof, any
of the Base Rent, MAG, PO or Additional Charges shall be overdue and unpaid, or any
other sum payable by Lessee to Lessor hereunder shall be overdue and unpaid, then
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, then 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 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 shaH, within five 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.
17
c. County Return/Release of Required Security. No later than 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 by 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.
d. County Lien on Personal Property. In addition to the security interests
referenced above, Lessee hereby grants to the County a security interest in Lessee's
personal property and furnishings on or in the Premises as additional security for
Lessee's obligations hereunder. Said personal property and furnishings shall not be
removed from the Premises without the County's consent until all Base Rent, MAG,
PO or Additional Charges obligations have been satisfied. It is intended by the parties
that this lease shall have the effect of a security agreement upon the aforementioned
personal property and furnishings, and that the County shall have all the rights of a
secured party under the Uniform Commercial Code of the State of Colorado.
6. Lessee Reports. Lessee shall prepare (or have prepared) and deliver to Lessor
complete and accurate reports as follows:
a. Monthly Reports. At the same time that Lessee is obligated to pay its monthly
Base Rent and Minimum AmuraI Guarantee, Lessee shall provide the Director of
Aviation with an itemized statement showing the Gross Sales and Gross Revenues
attributable to Lessee during the preceding calendar month from the Premises during
said month. Said statement shah be signed and certified as complete and correct by an
official of Lessee authorized to so certify. Such statement shall be on a form required
by the Airport and amended from time to time in the Airport's discretion.
b. Annual Reports. Within sixty (60) days after the end of each Lease Year,
dp
Lessee shall deliver to Lessor a written statement signed by a licensed certifie ublic
accountant or by some other person acceptable to Lessor setting forth the amount of
Lessee's gross sales and Gross Revenues for the preceding Lease Year. The accountant
or other person shall certify that the gross sales and revenues have been computed in
accordance with the definitions contained in this Lease. If the percentage rent for the
Lease Year is more than the total thereof actually paid by Lessee, Lessee shall pay the
balance due to Lessor within thirty (30) days of delivery of the annual statement.
c. Special Reports. Lessee shall submit to County, at County's request, such
other and further reports containing information that is reasonably necessary, in the
discretion of the County, to monitor current Gift Shop operations, to audit or review
past operations or to plan future operations.
7. Lessee Business Records. Lessee shall maintain full and accurate books of account
and records from which Gross Sales and Gross Revenues, as defined herein, the amount and
nature of all business transacted on or through the Premises and the amount of Percentage
Override owed the County hereunder, can be determined and verified, according to standard
and generally-accepted accounting principles and practices and auditing standards.
18
a. Lessee's required books of account and records shall include, without
limitation, legible, true and accurate copies of all written and electronic records and
reports kept in the normal course of Lessee's business.
b. Lessee's financial recordkeeping and reporting system for all business
conducted on or through the Premises or subject to this Agreement shall include,
without limitation, the following:
i) Complete, accurate and legible copies of all cash register tapes, bank
deposits, sales tax reports, sales slips, cash register tapes, credit card invoices,
monthly sales tax returns, sales and disbursement journals, general ledgers,
bank statements, bank books, bank deposit slips, annual federal income tax
returns, state sales tax returns and ali Airport-related revenue reports
submitted by Lessee to its parent company(ies), if any, and all computer
and/or microfilm or microfiche reproductions of the above.
ii) Adequate financial controls, under generally accepted accouniing
principles and practices and auditing standards, to ensure complete and
accurate recording and reporting of all Gross Sales and Gross Revenues.
iii) Any other document or procedure which, in the reasonable discretion
of the County, is necessary or useful to determine or verify Lessee's obligations
hereunder. Such new documents or procedures shall be used or instituted a
reasonable time after written notice thereof has been sent by the County to
Lessee.
c. These books and records shall be maintained on a current basis and shall be
stored for a period of at least thirty-six (36) months from the end of each monthly
period, or for such longer period of time as County reasonably may direct in writing.
The location of these books and records shall be disclosed to the County and, if such
records are not stored within Pitkin County, it shall be Lessee's responsibility, at its
expense, to promptly make such records, upon request, available to County, or its
representatives, in a time, manner and format to the satisfaction of the County, in its
reasonable discretion.
8. County's Rilght to Audit. The County may conduct audits of Lessee's books of
account and records as follows:
a. Time and Frequency of Audits. The County may conduct audits of Lessee at
any of the following times: annually; at the expiration or termination of the term
hereof; upon a request by Lessee of assignment of its rights hereunder; and upon the
receipt by County of any information that would lead a prudent commercial landlord
to draw a reasonable inference that Lessee is not in full compliance with its financial
obligations hereunder.
b. Manner of Audits. Such audits shall be conducted upon reasonable notice to
Lessee and during Lessee's normal weekday business hours. For purposes of this
Lease and Use Agreement, the annual audit period shall be deemed to commence on
November I of each year of the Agreement and to conclude on October 31 of the
Page: 22 of 53
19
ensuing year. County shall hold ail information obtained from any such audits in
confidence except: as may be necessary to enforce the County's rights under this
Agreement; as part of any federal, state or local tax proceedings; and with respect to
any legal requirements or Court Order to disclose said information.
c. Scope of Audits. In performing said audits, County shall be entitled to review,
and Lessee shall be obligated promptly to provide to the County upon demand
therefor, ali of the books of account and records that Lessee is obligated to maintain
pursuant hereto, plus such other records, documents and files in Lessee's possession,
custody or control during the term hereof that the County, (or its auditor), determine,
in their sole discretion, are useful, relevant or necessary to determine or verify the
correct amount of reportable, includable and excludable revenues and Gross Sales and
Gross Revenues attributable to Lessee, and the correct amount of Percentage Override
owed by Lessee to the County, for the period involved.
One Hundred Eighty (180) days after the date all documents requested by the County
have been received by the County, the County shall release Lessee from any liability
for underreporting or underpayment hereunder, unless the County shall have given
Notice, within that period, of any questions, objections or exceptions to the statement
or any claims for inadequate or deficient reporting or payment. Once such notice is
given, the parties shall expeditiously and in good faith cooperate to resolve the matters
contained therein.
d. Results of Audits. Should Lessee fail to maintain the books of account and
records required to be maintained pursuant hereto, or should Lessee fail to deliver and
enable CoUnty (or its auditor) to review Lessee'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 Lease and Lessee shall pay, as liquidated
damages for such breach, an additional amount equal to fifty (50%) percent of the
verifiable costs, fees, payments and charges due from Lessee hereunder for the period
in question; provided, however, that Lessee shah only pay these damages for failure to
keep required records if such requirements are reasonable in light of Lessee's business
practices (as such practices may be modified by County requests hereunder) and
generally accepted accounting principles and auditing Standards.
If any audit shows percentage compensation and other fees and charges that should
have been paid to the County by the Lessee pursuant to this Agreement were
understated or underpaid for any period involved (including, expressly, revenues
from prohibited or tmperrnitted transactions, Premises or diverted business), Lessee
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 above, on such underpayment from the time said
underpayment should have been paid to the time said tmderpayment is fully paid. If
the audit discloses overpayment of the Percentage Override paid to the County by
Lessee, the County shall refund the amount of overpayment to Lessee within thirty
(30) days of said audit.
e. Expense of audits. Generally, the County shall bear the expense of annual,
end-of-term or investigatory audits; however, if the amount of underpayment
583209
Page: 23 o¢ 53
20
disclosed by any audit exceeds exactly two (2.0%) percent of the total Percentage
Override or Additional Charges that was owed by Lessee to the County for the period
involved, Lessee, in addition to paying the County the underpayment owed and
interest accrued thereon shall, within thirty (30) days' Notice by County, reimburse the
County for the cost of the audit not to exceed Fifteen Hundred Dollars ($1,500.00).
An audit done prior to any assignment, conveyance or transfer by Lessee of this Lease
or any rights or obligations hereunder requiring approval of the County as required
herein, shall be at the sole expense of the Lessee.
C. COUNTY RESERVATIONS OF RIGHTS.
Lessee acknowledges that the Airport is a federally-funded public service airport and, as such, has
separate obligations to the Federal Aviation Administration (FAA) and aviation-related uses of the
Airport, which obligations may take priority over the rights of non-aviation-related Lessees,
Licensees and Permittees.
To that end, County reserves the following rights with respect to the Premises and all uses and
operations to be conducted thereon:
1. County reserves the right to unimpeded access over and across the surface of the
Premises, except for the buildings and other improvements situated thereon; provided, that
County shall not, in the exercise of this reserved right, unreasonably interfere with Lessee's
use of the Premises. County shall be entitled to enter upon the Premises 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, preventing
waste or loss, responding to emergencies or complaints or erfforcing any of County's rights
hereunder.
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 Premises, together with the right to cause in
and around said air space and on the ground such noise as may be inherent in the operation
of aircraft utilizing the Airport.
3. County reserves the right to protect the aerial approaches of the Airport againkt
obstruction, including the right to prohibit Lessee from erecting, or permitting to be erected or
maintained, any building or other structure or obstruction on the Premises which would, in
the discretion of the County, limit the aeronautical usefulness of the Airport or constitute a
hazard to aviation.
4. County reserves the right to subordinate the provisions of this Lease, without prior
notice to Lessee, 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 Lease shah 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
21
silnated on the Premises, the Lessee agrees to modify, relocate or remove m~y such
improvements or s~ructnres as directed by County. If the improvements removed were
lawful and permiRed, the County shall reimburse Lessee for the reasonable cost and expense
thereof.
5. County reserves the right, during the time of War or national emergency, to lease the
Airport or any part thereof, including the Premises 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 provisions of this Lease shall be suspended insofar as
such provisions may be inconsistent with the provisions of the lease to the United States
Government.
6. County reserves the right to direct, in its sole discretion, all activities of the Lessee at
the Airport in the event of an emergency condition that is a threat to the public health, welfare
and safety.
7. County reserves the right to grant leases, licenses, uses, permits or rights to other
parties to occupy or operate commercial activities on the Airport so long as such other grants
do not unreasonably interfere, in the reasonable discretion of the County, with Lessee's
operations.
8. The County reserves the right to direct Lessee's operations in the event that such
operations are unreasonably interfering, in the reasonable discretion of County, with the use
by others of the Airport; e.g., to restrict the use of "public" areas of the Terminal and public-
access curbs, sidewalks and roadways in favor of the public.
9. County reserves the right to further plan, develop, improve, remodel and/or
reconfigure the Airport, including the Premises and existing vehicle and pedestrian traffic
patterns, as County deems appropriate without interference or hindrance by the Lessee, and
County shah have no liability hereunder to Lessee by reason of any interruption to Lessee's
operations on the Premises occasioned by such County activities; provided, however, that
County shah consult in advance with Lessee on such changes. Additionally, possibility of
terminal and airfield closures due to construction, security or bad weather might occur. Good
faith efforts will be attempted by Pitkin County to minimize the effects on the operations.
10. The County reserves the right, in its sole discretion, to enter into agreements for the
financing or re-financing of the Airport and Lessee agrees to cooperate in providing irfforma-
tion to prospective lenders and in providing estoppel certificates and similar documents, ff so
requested.
11. County reserves the right to prohibit any commercial or non-commercial activity by
any party on the Airport, unless that activity has express prior, written permission from the
County.
12. County reserves the right to establish and enforce reasonable rules and reguiations for
the conduct of activities and uses permitted herein and also to promulgate minimum stan-
dards 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.
22
13. County reserves the right to refer all development proposals hereunder through the
estabhshed County land-use apphcation/review process, with costs and fees thereof to be
paid by the proposed developer.
14. County reserves the right to inform Lessee of their employee(s)'s misconduct.
D. RELEASE, INDEMNITY AND INSURANCE.
1. Definitions. For purposes of this Section:
a. "Lessee" shah mean: Lessee's business entity and its parent companies,
subsidiaries, joint venturers, lenders, shareholders, directors, officers and employees;
Lessee's agents, representatives, contractors, invitees and licensees; and any other
person whatsoever claiming through Lessee.
b. "Lessor" shall mean: the County of Pitkin (a Colorado home-rule County), the
Aspen/Pitkin County Airport and the officials, employees, agents and representatives
thereof.
c. "Liability" shah mean: the legal obligation to pay compensation to an injured
or aggrieved party.
d. "Loss" shah mean: judgments or awards for money damages (direct and
consequential, general and special), penalties, expenses, costs (including costs of
investigation and defense), fees (including reasonable attorney and expert witness
fees) or payments of money or compensation in any form or kind whatsoever.
e. "Casualty" shall mean: property damage caused by fire, water, snow, ice, wind,
collision, collapse or explosion.
f. "Claim" shall mean: any legal claim, notice of claim, claim for relief, demand,
lien, complaint, cause of action or other legal proceeding to establish legal or financial
liability.
g. "Personal Injury" shall mean: property damage, bodily injury or death.
2. Lessee's Release and Indemni~ of Lessor. Lessee shall and hereby does release, dis-
charge, indemnify and hold harmless Lessor from and against liability for any loss in
connection with any casualty claim of Lessee or personal injury claim of Lessee or third
parties arisIng out of or in connection with Lessee's occupancy and use of the Premises. This
release and indemnity shall apply to the intentional acts or negligent acts, errors or omissions
of Lessee, but shall not apply to loss caused by the intentional acts or the gross negligence of
Lessor.
Further, Lessee shall investigate, process, respond to, adjust, provide defense for and defend,
pay or settle ali clainrs, demands, or lawsuits related to its acts, errors and omissions
hereunder at its soIe expense and shall bear aH other costs and expenses related thereto, even
if the claim, demand or lawsuit is groundless, false or fraudulent.
503209
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3. Lessee's Required Insurance. To fund this indemnity, in whole or in part, the Lessee
shall secure and maintain for the term of its contractual relationship with the County such
insurance policies, from companies licensed to do business in the State of Colorado, as will
protect itself, the County (with the County named as additional insured), and others as speci-
fied, from claims for bodily injuries, death, personal injury or property damage, which may
arise out of or result from the Lessee's intentional or negligent acts, errors or omissions.
For the purpose of this section reference is made to Required Clauses section of insurance
attached hereto and made part of this Agreement as Exhibit "A'.
4. County Insurance Obligations. County shall procure fire m~d extended coverage
insurance and boiler insurance covering the Terminal for the full replacement value thereof.
County shall maintain such insurance in full force and effect during the term of this Lease and
shall furnish Lessee, at Lessee's request, with a copy of a certificate evidencing such insurance.
Lessee shall take no action inconsistent with the maintenance of such insurance, nor shall
Lessee take any action which would cause the cost of such insurance to the County to
increase.
E. OPERATION AND MAINTENANCE OF PREMISES.
1. Maintenance and Repair. With respect to the maintenance and repair of the Airport
Terminal and related land areas and improvements, including the Premises, the County and
the Lessee shall have the following obligations:
a. County's Obligation. County, at its expense, shall maintain and keep in good
condition and repair the following: the foundation; the structure; the exterior walls
and the interior demising wags (except store fronts, plate glass windows, doors, door
closure devices, window and door frames, molding, locks, and hardware, and except
painting or other treatment of wall surfaces within or facing the Premises or other
leasable space); and facilities outside the Premises and other leasable areas, and the
roof of the Building; provided, however Lessor shall not be required to make any
repairs occasioned by the negligence of Lessee, its agents, employees, contractors,
subtenants, licensees, concessionaires or customers, which repairs shall be made by
Lessee.
In the event that the Premises become in need of repairs within these Lessor's
obligations, Lessee shall give immediate written notice thereof to Lessor and Lessor
shall not be responsible in any way for failure to make any such repairs until a
reasonable time shall have elapsed after delivery of such written notice. Lessor's
obligation hereunder is limited to repairs specified in this Section only, and Lessor
shall have no liability for any consequential damage or injury arising out of any
condition or occurrence causing a need for such repairs. Lessor shall have access to
the Premises as necessary or convenient to make repairs required by this Section.
b. Lessee's Obligation. Lessee, at its expense, shaIl make alI needed repairs and
replacements to the Premises, including replacement of cracked, broken glass or
evaporative cooler unit, except for any replacements required to be made by Lessor
above, and shali keep all plumbing units, pipes and connections within the Premises
in good repair and free from obstruction and protected against ice and freezing.
24
Lessee shall furnish, maintain and replace ali electric light bulbs, tubes and tube
casings within the Premises. If any repairs and replacements required to be made by
Lessee hereunder are not made within twenty days after written notice to Lessee,
Lessor may, at its option, make such repairs without liability to Lessee for any loss or
damage which may result to its stock or business by reason of such repairs, and Lessee
shah pay to Lessor as Additional Charges the actual cost of such repairs plus 10% of
said cost to cover Lessor's administrative costs.
c. Lessee sham 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.
2. Utilities.
a. County's Obligation. County shaH, at its expense, provide heat, light,
electricity, ventilation, water, sewer connections and trash removal from the non-
exclusive common areas of the Terminal.
b. Lessee's Obligation. Lessee shall, at its expense, provide all such and other
utility services and charges (including its business telephone) to the Premises. Lessee
shall permit no liens or claims against the Premises arising from unpaid or disputed
utility bills and hereby does indemnify the County against all costs (including
attorney's fees) or liabilities arising from such liens or claims.
c. If, during this Lease term, the Airport is required to increase its water, sewer,
gas or electric service and such increase requires a capital contribution from the
Airport, Lessee, if it consumes the increased utility, agrees to pay a pro-rated,
reasonably-amortized portion of said increase, which amount will be set by
agreement or binding arbitration.
3. Modifications, Alterations and Improvements. The Premises may be modified,
altered or improved by the parties under the following procedures, terms and conditions:
a. By County: The County, after reasonable notice to and comment from Lessee,
may make modifications, alterations or improvements to the Premises that do not
result in permanent unreasonable impairment of the Premises or interference with the
conduct of Lessee's business thereon and therefrom without liability of any kind to
Lessee and Lessee shall co-operate with the making of same.
b. By Lessee: Lessee shall make no modifications, alterations or improvements to
the Premises without the prior written consent of County and upon such terms and
conditions as County shah require, in its sole discretion.
Any modifications, alterations or improvements to the Premises with respect to which
County has given its written consent, shall be done at Lessee's sole cost and expense
and Lessee shall not cause or permit any statutory claims or liens to be filed against thf
Premises or against the Terminal or the Airport or other improvements thereon by
reason thereof and hereby does indemnify the County against all costs (including
attorney's fees) and liabilities arising from such claims or liens.
5032,39
25
Any such improvements or alterations to the Premises made by Lessee shall become
the property of the County upon the termination of the Lease and shall be surrendered
with the Premises and as a part thereof, unless otherwise agreed upon tn writing
between the County and the Lessee.
4. Snow Removal. With respect to the maintenance and repair of the Airport Terminal
and area, the County and the Lessee shall have the following obligations:
a. County's Obligation. Comrty shall at its expense, and subject and secondary
to County's obligation to maintain clear public airfield facilities and runways on the
Airport, remove the snow from those areas of the Premises which are open to public
use tn the same manner, sequence and extent as Comity performs snow removal on
portions of the Airport in general; provided, that County shall not be required to move
or relocate parked vehicles t6 accomplish such snow removal.
b. Lessee's Obligation. Lessee shall, at the direction of the County, move or
relocate its vehicles to assist County (or its contractors) tn County's snow removal
obligations set forth above.
5. Delivery. Lessee shall contact and communicate with the delivery vendors that the
Airport's rules and regUlations regarding the parktng and delivery procedures must be
observed and followed.
6. Casualty Release. Lessee hereby releases Lessor from liability for falling ceiling
materials, damaged floor coverings, electricity, plumbing, gas, water, steam, sprinkler or other
pipe and sewage system or by the bursting, runntng or leaking of any tank, washstand, closet
or waste to other pipes in or about the Premises, or the Building or which they are a part, and
for any damage occasioned by water being upon or corning through the roof, or vent, or
otherwise for any damage arising from any acts or neglect of other Airport LLPs or other
occupants of the Building or of adjacent property, or the public, nor shah Lessor be liable in
damages or otherwise for any failure to furnish, or interruption of service of any water, gas
electricity, heated water, steam and/or chilled water, caused by fire, accident, riot, strike,
labor disputes, acts of God, or the making of any repairs or improvements or other causes
beyond the control of Lessor.
F. ASSIGNMENT.
1. Assignment Prohibited without County Consent. An assignment by Lessee of this
Lease, or any estate or interest herein, or any right or obligation of Lessee hereunder, or of any
substantial interest tn the ownership, management or financing of Lessee's business entity, is
hereby expressly prohibited, except with the prior, express, written consent of Lessor, which
consent shall not be unreasonably withheld.
a. An "assignment" hereunder shall include any transaction, by Lessee's act or
omission or by operation of law, creating rights or obligations in or affecting this Lease
that did not exist on the effective date of this Lease (or were not disclosed to Lessor
before that date), however styled, including, as examples and without limitation, a
sublease, license, sale, grant, conveyance, transfer, encumbrance, mortgage or pledge.
5032~9 26
D 0.00
b. A "substantial" interest hereunder shall inchide, as examples and without
limitation, the following:
i) The transfer, encumbrance or other disposition of ownership, assets,
management, operation or control, in one or a series of related transactions, of
an interest of fifteen percent (15.0%) or greater in Lessee's business entity,
whether corporalion, limited liability company, general partnership, limited
partnership or sole proprietorship;
ii) Merger, consolidation, reorganization, transfer or other change of
Lessee's corporate or proprietary structure;
iii) An assignment to or by a receiver or trustee in any Federal or State
bankruptcy, insolvency or other proceedings;
iv) The sale or transfer of all or substantially all of the assets of Lessee, with
or without specific assignment of this Lease;
v) The creation of any interest or encumbrance for security purposes,
except a purchase-money security interest in inventory.
2. Standards and Procedures to Obtain County Consent.
a. The determination by Lessor of whether a proposed assignment is reasonable
under this Section may include consideration of factors including, without limitation:
i) Whether Lessee is or has been in default under any of the terms or
provisions of the Lease.
ii) Whether the proposed assignee can demonstrate acceptable levels of
relevant, successful business and financial qualifications and experience.
iii) Whether the assignment will be in compliance with established Airport
management goals and preferences including, without limitation, the Airport's
federal Disadvantaged Business Enterprise (DBE) goals and "existing operator"
or "owner/operator" preferences.
iv) Whether any new business use for the Premises is being proposed and,
if so, what impacts the new use may have on the Terminal and the Airport.
v) Whether the proposed assignment is a technical assignment, in which
the Lessee/assignor (and its guarantors and sureties) ~fll be relieved of further
liability hereunder, or a technical sublease, in which the Lessee/sublessor and
the sublessee both continue to be bound by the terms of the Lease.
vi) Whether, if the proposed assignee or sublessee, or any stockholder,
general partner or member thereof or venturer therein, is a corporation or a
limited IiabilJty company, any individuals with interests therein have agreed to
27
personally and unconditionally guarantee, J~ a form satisfactory to Lessor, the
performance of ail Sublease obligations.
b. As part of a proposed assignment transaction, Lessor may reasonably require
from Lessee or the proposed assignee, as applicable, evidence to a level that would be
satisfactory to a commercial lender of the following:
i) Proof of Financial Resources. The proposed assignee or sublessee and
all required guarantors may be required to submit financial statements
prepared by state-licensed certified public accountants that establish, to
Lessee's reasonable satisfaction, financial ability to perform Lessee's obligations
and otherwise to succeed in the proposed business.
ii) Proof of successful, relevant business experience.
iii) Proof of business, financial and credit reputation of ownership and
management principals.
iv) Reimbursement by Lessee to Lessor of all costs and expenses (including
reasonable attorney's fees) incurred by Lessor in considering and approving
kessee's request.
v) An audit of and full payment of ail Base Rent, MAG, PO, and
Additional Charges to the effective date of the proposed transaction.
3. Effect of Previous Assignments. Consent by Lessor to one or more previous
assignments shall not operate as a waiver or restriction of Lessor's rights as to any subsequent
assignments.
4. Validity of Assignment without County Consent. Any attempted assignment by
Lessee in violation of the terms and covenants of this Section shall be void and a material
breach of this Lease.
5. Lessee Acknowledgement. Lessee acknowledges that this Section F. was freely
negotiated and is reasonable in all of the circumstances of this Lease.
G. DEFAULT AND TERMINATION
The standards and procedures for declarations of Default(s) under this Lease and termination of
Lessee's possessory rights under this Lease and/or of the Lease itself shall be as follows:
1. Incidents of Default by Lessee. The following acts or omissions by Lessee are agreed
to be Incidents of Default:
a. Failure to make full and timely payments of rent, Minimum Am~ual
Guarantees, percentage fees or other fees or charges due and payable hereunder; or
iILVIA DAVIS PITKIN COUNTY CO R 0.00
503299
28
b. The creation, maintenance, failure to correct or sufferance of a dangerous or
hazardous condition on or emanating from the Premises, or committing or allowing
any waste or damage to the Premises; or
c. Failure to obtain, maintain in full force and effect and/or provide proof of all
required types, forms and a mounts of insurance; or
d. Failure to provide and maintain current and required performance and
payment surety and proof thereof; or
e. Making an assignment, conveyance or transfer of its rights and obligations
hereunder without the consent of County; or
f. Making or becoming subject to a voluntary or involuntary petition for
receivership or bm~kruptcy, declaration of insolvency or assignment for the benefit of
creditors; or
g. Failure to comply with any other obligation under this Lease and Use
Agreement.
2. Notice of Default. Upon the occurrence of an Incident of Default by Lessee
hereunder, Lessor shall issue a written Notice of Default to Lessee (and its surety, if
applicable), which Notice shah specify the Incident(s) of Default asserted and a cure(s)
therefor acceptable to Lessor.
a. Within three (3) business days if the default is maintenance of a hazardous
condition or failure to maintain and/or prove required insurance coverage(s); or
3. Lessee's Right to Cure. Lessee shah have the right to cure an Incident of Default,
unless Lessee has abandoned the Premises, in which case Lessee shall be deemed to have
waived any right to cure. As a condition precedent to this right to cure, Lessee must provide
Notice, promptly after the effective date of the Notice of Default, to Lessor of Lessee's
intention to cure and whether it agrees with the County' proposed cure or has a
counterproposal. The time periods for cure, after the effective date of any Notice of Default,
shall be:
b. Within ten (10) calendar days if the default is failure to make full and timely
payments hereunder; or
c. Within twenty (20) calendar days if the default is in the performance of any
other obligation or conditions to be performed m~der the provisions of this Agreement.
If, in the discretion of Lessor, a cure acceptable to Lessor is promptly undertaken and
diligently prosecuted by Lessee and the cure required cannot reasonably be completed withfl~
the foregoing time periods, Lessor may, upon timely request and proof of such mitigating
circumstances by the Lessee, extend the period to cure by a reasonable time.
In the event of multiple Incidents of Default, the cure periods above shalI be concurrent, not
consecutive.
29
4. Lessor's Right to Cure. If Lessee should fail to cure any default hereunder within the
time herein permitted, or if a dangerous or emergency situation exists at any time, Lessor,
without being under any obligation to do so and without thereby waiving such default, may
make such payment and/or remedy such other default for the account of Lessee (and enter
the Premises for such purpose), and thereupon Lessee shall be obligated, and hereby agrees,
to pay as Additional Charges, all reasonable costs, expenses and disbursements (including
reasonable attorneys' fees) incurred by Lessor in taking such remedial action. Such action
taken by Lessor may include commencing, appearing in, defending, or otherwise
participating in any action or proceedings, and paying, purchasing, contesting, or
compromising any claim, right, encumbrance, charge or lien with respect to the Premises.
5. Lessor's Rights Upon an Uncured Default. If the Premises have been abandoned by
Lessee or ff an Incident(s) of Default noticed as provided herein remains uncured after the
cure period specified or extended, Lessor, at its option and in its sole discretion, may there-
after either terminate Lessee's possessory rights trader this Lease or terminate the Lease itself
and all of Lessee's rights hereunder or both in sequence, by Notice to the Lessee.
6. Termination of Lessee's Possessory Rights. If Lessor gives Notice of Termination of
Lessee's Possessory Rights, the following substantive and procedural elements shall apply:
a. Lessor shall re-take possession. Lessee shall immediately and peacefully
surrender the Premises to the Lessor and, if Lessee fails to do so, Lessor, without
prejudice to any other remedy which Lessor may have for possession, damages, or
arrearages in rental, may enter upon and take possession of the Premises through legal
process or, if no individual person is then actually on or about the Premises and breach
of the peach can be avoided, without use of legal process. Thereafter Lessor may
possess, hold and use the Premises and may alter ail locks and other security devices
thereon.
Unless Lessor so elects as provided, no such termination of Lessee's possessory rights
shall cause a termination of this Lease or otherwise relieve Lessee's liability and
obhgations under this Lease, and such liability and obligations shall survive any such
termination of possessory rights.
b. In the event of any such termination of Lessee's possessory rights, Lessee shall
continue to pay to the Lessor all monthly payments of all Base Rent, MAG and PO,
and any Additional Charges required to be paid by Lessee to Lessor during the
remainder of the Term until the date of expiration of the Term, adjusted as follows:
i) Plus all such amounts accrued prior to repossession;
ii) Plus expenses of Lessor arising from repossession;
iii) Minus amounts received by Lessor through re-letting.
In no event shall Lessee be entitled to any excess of any rental obtained by reletting
over and above the rental herein reserved. Actions to collect amounts due by Lessee to
3O
Lessor as provided in this Section may be brought from time to time, on one or more
occasions, without the necessity of Lessor's waiting until the expiration of the Term.
c. Lessor may sub-let or re-let. At any time after such re-taking of possession by
Lessor, Lessor may sublet or relet the Premises or any part thereof, in the name of the
Lessee or otherwise for such term (which may be greater or less than the balance of the
term of this Lease) and on such conditions as the Lessor, in Lessor's absolute
discretion, may determine, and may collect and receive the rents therefor.
i) In the event that Lessor shall have taken possession of the Premises
pursuant to the authority herein granted, then Lessor shall have the right to
keep in place and use all of the trade fixtures, leasehold improvements,
furnishings and equipment of the Premises, including that which is owned by
or leased to Lessee, at all times prior to any foreclosure thereon by Lessor or
repossession thereof by a lessor thereof or third party having a lien thereon.
ii) Lessor also shall have the right to remove from the Premises (without
the necessity of obtaining a writ, warrant, bond or other legal process) all or
any portion of such trade fixtures, leasehold improvements, furnishings,
equipment and other property located thereon and place same in storage at any
premises within the County in which the Premises are located, and in such
event, Lessee shall be liable to Lessor for reasonable costs incurred by Lessor in
connection with such removal and storage and shall indemnify and hold
Lessor harmless from ali loss, damage, cost, expense and liability in connection
with such removal and storage.
iii) Lessor also shall have the right to relinquish possession of all or any
portion of such property to any person ("Claimant") claiming to be entitled to
possession thereof who present to Lessor a copy of any instruments
represented to Lessor by Claimant to have been executed by Lessee (or any
predecessor of Lessee) granting Claimant the right under various
circumstances to take possession of such property, without the necessity on the
part of Lessor to inquire into the authenticity of said instrument's copy of
Lessee's or Lessee's predecessor's signature thereon and without the necessity
of Lessor's making any nature of investigation or inquiry as to the validity of
the factual or legal basis upon which Claimant purports to act; and Lessee
agrees to release Lessor from any liability and to indemnify and hold Lessor
harmless from all cost, expense, loss, damage and liability incident to Lessee's
relinquishment of possession of all or any portion of such furniture, fixtures,
equipment or other property to Claimant.
d. The rights of Lessor herein stated shall be in addition to any and all other
rights which are created elsewhere in this Lease or which Lessor has or may hereafter
have at law or in equity; and Lessee stipulates and agrees that the rights herein
granted Lessor are commercially reasonable.
7. Termination of the Lease. If Lessor gives Notice of Termination of the Lease, the
following substantive and procedural elements shall apply:
5032~29
31
a. Lessor may elect to termh~ate this Lease by Notice of Termination of the Lease
to Lessee either: immediately after an uncured default; or at any time following the
termination of Lessee's possessory rights.
b. Upon such Lease termination (or in the event a court shall otherwise construe
this Lease as terminated following Lessee's loss of its possessory rights hereunder),
Lessor shall have and exercise all rights of ownership of the Premises, and Lessee shall
pay to the Lessor in one lmmp sum the sum of ail Base Rent, MAG and PO, and
Additional Rental and other indebtedness to Lessor accrued to date of such
termination, plus, as and for liquidated damages for Lessee's default, an amount equal
to the present value of the total Base Rent, MAG and PO that would have become due
during the remainder of the Term but for termination of this Lease, less any amounts
actually received or due to Lessor as a result of re-letting and the amount of rental loss
for the same period that Lessee proves could have been avoided through the exercise
of such mitigation efforts as are legally required of Lessor. If such sum is not paid to
Lessor on the termination date, said sum shall bear interest at the Default Rate until
paid. For purposes of this section, "present value" shall be computed by discounting
the amount in question to present worth at a discount rate equal to one percentage
point above the discount rate then in effect at any commercial bank then with an office
in Pitkin County.
8. Not a Surrender. Exercise by Lessor of any one or more remedies herein granted or
otherwise available shall not be deemed to be an acceptance surrender of the Premises by
Lessor, whether by agreement or by operation of law, it being understood that such surrender
can be effected only by the written agreement of Lessee and Lessor. No alteration of locks or
other security devices and no removal or other exercise of dominion by Lessor 'over the
property of Lessee, or others at the Premises shall be deemed unauthorized or constitute a
conversion or a Lease termination. Lessee hereby consents, after any Event of Default, to the
aforesaid exercise of dominion over Lessee's property within the Premises. All claims for
damages by reason of such re-entry and/or repossession and/or alteration of locks or other
security devices are hereby waived, as are all claims for damages by reason of any distress
warrant, forcible detainer proceedings, sequestration proceedings or other legal process.
9. Property Left on Premises. Any property of Lessee, or of anyone claiming under, by,
or through Lessee, which is left on the Premises more than fifteen days after expiration of the
Term or termination of possessory rights shall be conclusively deemed abandoned, and Lessor
may keep, use, remove, store, sell, destroy, discard, or otherwise deal with it in Lessor's
absolute discretion without liability of any sort to Lessee or anyone claiming under, by, or
through Lessee.
10. Costs of Default. In case of any Event of Default, Lessee shall also be liable for and
shall pay to Lessor, in addition to any sum provided to be paid above, all costs, expenses and
fees associated with providing Notice of the Default and enforcing Lessor's rights hereunder
including, without limitation, the following: the reasonable costs of removing and storing or
otherwise disposing of Lessee's or other occupant's property; the reasonable costs of cleaning,
repairing, altering, remodeling or otherwise putting the Premises into condition acceptable to
a new Lessee or Lessees; advertising costs; all reasonable expenses incurred by Lessor in
enforcing or defending Lessor~s rights and/or remedies, including reasonable attorneys' fees;
and a sum equal to $100 for each hour that any employee or agent of Lessor, spends in
32
,/
connection with obtaining the right to reIet, rendering suitable for reletting, and attempting to
relet the Premises or any part thereof.
11. Lessor's Duty to Relet. In the event of termination of possessory rights or
repossession of the Premises for an Event of Default, Lessor shall not have any greater
obligation to relet or attempt to relet the Premises, or any portion thereof, or to collect rental
on the Premises after reletting than is required by applicable law with respect to m/tigation of
damages; and in the event of relethng, Lessor may relet the whole or any portion of the
Premises for any period, to any Lessee, and for any use and purpose.
12. Default by Lessor; Lessee's Remedies. In the event of any default by Lessee, Lessee's
exclusive remedy shall be an action for damages, but prior to any such action Lessee will give
Lessee written notice specifying guch default with particularity, and Lessee shall thereupon
have 20 days (or such longer period as may be necessary in the circumstances) in which to
cure any such default. Unless and until Lessee fails so to cure any default under such notice,
Lessee shall not have any remedy or cause of action by reason thereof. Ail obligations of
Lessor hereunder will be construed as covenants, not conditions; and all such obligations will
be binding upon Lessor only during the period of its ownership of the Building and not
thereafter.
13. Lessor's Remedies. In addition to the remedies expressly set forth herein, Lessor shall
have such other and further legal and equitable rights and remedies as may be provided by
law, Including injunction, specific performance, and damages.
H. GENERAL PROVISIONS
1. Coordination with other Airport Users. County and Lessee acknowledge that the
County has, and Lessee may have, rights and obligations arising from various third-party
agreements with other Airport users. County and Lessee 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 conflict with the rights
and obligations of the various parties hereunder. If either County or Lessee shall make a
demand upon the other for cooperation hereunder, the party making the demand shall first
provide copies of any such agreements to the other, party.
2. Surrender of Premises/Lessee's Personal Property. Subject to the security interest set
forth above, on or before the date and time of the expiration or termination of the Initial or
Renewal Term of the Initial or Renewal Term of this Lease, Lessee shall: surrender the
Premises to County in good condition and repair, ordinary wear and usage excepted; and
remove all of Lessee's personal property, trade fixtures, equipment or improvements
removable by prior agreement with County from the Premises; and repair any damage to the
Premises caused by such removal. Any personal property of Lessee, or anyone claiming
under Lessee, which shall remain upon the Premises at the expiration or termination of this
Lease shall be deemed to have been abandoned and may be retained by County as County's
property or disposed of by County in such mmmer as County sees fit without compensation
to any party.
3. Compliance with Applicable Laws and Regulations. In connection with its
occupancy and use of the Premises and the conduct of its operation thereon, the Lessee shall:
33
5032 9
C~6 o
a. Comply with all applicable laws, rules and regulations of the United States of
America (including, especially, the U.S. Department of Transportation and the Federal
Aviation Administration), the State of Colorado and the County of Pitkin (including,
without limitation, the Airport, the Sheriff's Department, the Public Works
Department and the Community Development Office) and any and all departments
and agencies thereof, as the same may now exist or may be hereafter promulgated or
amended from time to time.
i) Although Lessee is not an aeronautical operator and, as such, is not
directly regulated by the FAA, Lessee acknowledges that the FAA with respect
to operation, financing and development of the Terminal heavily regulates the
Airport.
b. Present applicable Airport regulations include, without limitation:
i) Airport Regulations, Title X, Pitkin County Code;
ii) Airport Operations Plan and Emergency Plan;
iii) Airport Security Plan;
iv) Commercial traffic loop and public traffic patterns and regulations, as
they may be amended from time to time;
v) Airport Financial Policy (Resolution 87-56-A).
Lessee acknowledges that Pitkin County has the continuing authority to enact general
legislation pursuant to its power to protect the health, welfare and safety of its citizens,
as well as the continuing authority, in its executive capacity, to enact Airport
regulations.
c. Comply with the nofffication and review requirements of Part 77 of the FAA's
Federal Aviation Regulations (FARs) in the event any future structure or building is
planned for the Premises, or in the event of any planned modification or alteration of
any present or future structure or building situated on the Premises.
d. 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 Part 21 of the
Regulations of the U.S. Department 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.
e. Comply with the requirements for commercial tenants of the Americans with
Disabilities Act (ADA).
34
f. Comply with the requirements for Airport tenants of the Airport's program
and goals to increase opportunity for Disadvantaged Business Enterprises (DBE).
g. Pay ail business/personal property taxes assessed against Lessee's personal
property situated upon the Premises and ail other taxes lawfully assessed against
Lessee by reason of Lessee's use and occupancy of the Premises in the conduct of
Lessee's business thereon.
h. Comply with the rules and practices as set forth in the current Pitkin County
Airport Security Plan as amended from time to time. Any fines assessed against
County by the FAA as a result of the Lessee's failure to comply with the provisions of
this paragraph or other intentional or negligent acts or omissions of Lessee, its
employees or agents will be paid promptly upon demand to the County by the Lessee.
i. This agreement is subject to the requirements of the U.S. Department 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 of any concession agreement, management, contract, or subcontract,
purchase or lease agreement, or other agreement covered by 49 CFR Part 26, subpart
G.
j. 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 it enters and cause those businesses to similarly include the statements in further
agreements.
4. Lessee's Personal Property/Trademarks. All personal property, equipment,
furnishings, decorations and trade fixtures placed upon the Premises by Lessee shall be at
Lessee'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.
Lessee 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, tradenames, trademarks,
logos or slogans to be used by it in its operations under or in any way cozmected with this
Agreement. Lessee 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 operations of Lessee under or in any way connected with this
Agreement.
5. Substitution of Pitkin County Airport Facilities. Comity may build or provide, or
cause to be built or provided, substitute facilities at the Airport. In the event of the
construction and occupancy of new or substitute facilities at the Airport during the term of
this Agreement, the following shall apply:
a. County agrees to set aside space for a Gift Shop operation for use of Lessee.
593209
35
i) Lessee agrees to relocate operations from the Premises to the new or
substituted facilities at its own expense and to thereafter conduct its operations
there from. The new or substituted facilities shah be comparable to the
previous facilities or better in terms of size, Premises and finish, all in the
reasonable discretion of the County.
ii) Upon such relocations, County shall have the right to demolish or use
the existing terminal building or other buildings or facilities located on the
Premises as it sees fit.
iii) The fees provided for in this Lease shall be subject to Equitable
Adjustment to reflect the substitution of space for the existing terminal
building and facilities located on the Premises. In the event County and Lessee
are unable to agree to such adjustment, then such adjustment shall be deter-
mined by a qualified real estate appraiser selected by the mutual agreement of
County and Lessee, with the appraisal costs to be shared equally by them.
iv) Except as modified by the substitution of facilities and the fee
adjustment as provided for herein, this Lease shall continue in full force and
effect without change or modification until the expiration or termination of the
Lease term.
b. If, in the opinion of County, the Premises shall be wholly or partially required
for other operations of the Airport or if the use of the Premises should be changed or
abated by reason of other operations of the Airport, then the following shal~ apply:
i) County shall substitute for the Premises another area at the Airport of
equivalent size and with comparable facilities and shall, at County's expense,
provide thereon facilities reasonably comparable to the facilities existing on the
Premises, including, but not by way of limitation, the buildings, structures,
paved areas, vehicle parking areas, utilities, and other improvements, either by
the relocations of the existing facilities and/or by the construction of new
facilities.
ii) Lessee agrees to accept such other area at the Airport and the facilities
to be provided thereon by County in substitution for the Premises and agrees
to promptly relocate its operations to such other area at its expense.
iii) County shall schedule the preparation of such substituted area and
shall effect such substitution and relocations of the Lessee's operations in such
manner as shall not result in the unreasonable interruption of the conduct of
Lessee's operations.
6. Destruction of Buildings and Other Improvements. If the buildings and other
improvements upon the Premises shah be rendered untenantable by fire or other casualty,
County shall, at County's cost (subject to and secondary to Lessee's obligation, if any, to
provide fire and casualty insurance for the Premises, as provided herein), restore and repair
the same to tenantable condition as speedily as possible and the fees and charges for the
~6
occupancy of the untenantable space shall be abated, 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 Lessee, its
agents, employees, invitees or Lessees.
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 Lessee shall agree to
contribute to the costs of such restoration and repair in an amount equal to such deficiency.
7. Rights of Seizure. County shah not be liable in any respect to Lessee in the event of
any seizure of aH or any part of the Premises, 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 fees provided hereunder shah abate during such
period of seizure to the extent that such seizure shall interfere with Lessee's ability to conduct
its business upon tire Premises.
8. Relationship of Parties. It is the intent and agreement of the County and the
Company that they shall have the relationship respectively of Licensor/Lessee 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 shah County be liable
for any loss which may result from the operations of Lessee upon the Premises or for any
indebtedness incurred by Lessee in the operation of its business on the Premises or for the
claims of third parties against Lessee in the conduct of its business.
In addition, County shah not be liable in any manner to the Lessee for any damages the Lessee
may incur due'to the inability of the County to deliver possession of the Premises, or any part
thereof, to the Lessee for reasons beyond the reasonable control of the County.
9. Non-Liability of County's Agents and Employees. No official, agent, or employee of
County shah be personally liable to Lessee in the event of any default or breach hereunder by
County.
10. Notices. All notices required or authorized to be given hereunder shah be in writing
and shah be served upon the party entitled thereto either by personal delivery to such party
or by certified mail, return receipt requested, addressed to such party at its address appearing
on the signature page of this Lease (with a copy delivered to its Airport Terminal booth), 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 on the date so delivered 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.
11. Representations of Lessee. Lessee represents and warrants to County as foI1ows:
a. Lessee, and those individuals executing this Lease on behalf of Lessee,
represent and warrant that they are familiar with Section 18-8-301, e~t ~. of the
37
Colorado Revised Statutes (Bribery and Corrupt Influences) and Section 18-8-401, et
seq. of the Colorado Revised Statutes (Abuse of Public Office) and that no violations of
the provisions thereof are present.
b. Lessee, and those individuals executing this Lease on behalf of Lessee,
represent and warrant that to the best of their knowledge no employee of Pitkin
County has personal or beneficial interest whatsoever in this Lease or in the business
to be conducted upon the Premises by the Lessee.
12. Entire A~reement/Merger. This Lease contains the entire agreement of the parties and
there have been no oral or written promises, representations or agreements, either express or
implied, except as expressly set forth herein. Any and all prior agreements or understandings
between the parties are expressly agreed to have merged herein.
13. Severabilitv. The provisions of this Lease shaI1 be severable and the invaiidity of any
provision hereof shall not affect the validity of any other provision hereof.
14. No Oral Modifications. This Lease 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 fin
writing; provided, however, that all matters affecting material terms of this Agreement,
including term, fees and charges and use of Premises by Lessee, shall only be modified or
amended by a writing approved by an Ordinance of the Board of County Commissioners at a
duly-noticed public meeting.
15. No Waiver. The failure of either party hereto to exercise any right or remedy
hereunder shall not be deemed a waiver thereof or a waiver of the right to exercise the same at
any future time, or the waiver of any other right or remedy hereunder. No waiver by either
party of any right or remedy hereunder shall be effective unless in writing signed by the
party.
16. No Presumption Against Drafting Party. The parties agree that this Agreement was
negotiated by the parties hereto mutually, that each has had adequate opportunity to review
this Agreement and to consult with legal and other counsel 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 there from.
17. Attorney's Fees. If either party to this Agreement incurs attorney's fees and/or costs
in connection with the declaration of a Default hereunder or any other legal proceeding to
interpret, protect or enforce any of its rights hereunder, the party prevailing in such
proceeding shall be entitled to recover its reasonable attorney's fees and costs in comrection
with such proceeding.
18. Governing Law/Venue. This Lease 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.
19. Binding Effect. This Lease shall be binding upon and shall inure to the benefit of the
parties hereto and to their properly qualified successors and assigns.
38
5032~9
20. Captions. The captions and such headings in this Lease are for organization purposes
only and shall not be construed to have independent substantial meaning; the captions shall
be construed in the context of the entire Agreement.
21. Time of the Essence. In any provision herein, regarding a date or time, within which
something is to be done, the time stated is agreed to be of the essence.
22. Duplicate Originals; Recorded Summary. This Lease shah be executed in duplicate
originals, with one original to be held by each party. Either party, at its expense, and after
reasonable advance notice to the other, may file a duplicate original Lease or an accurate
summary thereof in the real estate records of the Pitkin County Clerk & Recorder.
23. Authority of Lessee's Representative. As an inducement to the County to execute this
Agreement, the undersigned officer of Lessee represents that he/she is expressly authorized
to execute this Agreement and to bind Lessee to the terms and conditions hereof and
acknowledges that the County is relying on this representation, authorization and execution.
24. Suspension of Terminal Operations. If Lessor intentionally suspends
operations at the Terminal for more than seven days in a row in order to conduct
construction, remodeling, or expansion of the airport, Lessee shah be entitled to an Equitable
Adjustment as that term is defined herein. This paragraph shah not apply to closures of the
Terminal that result from anything other than construction, remodeling, or expansion of the
airport, and shall not apply to any federally-mandated suspension of operations at the
Airport.
39
56)3289
COUNTY: LICENSEE:
The Board of County Commissioners
of Pitkin County, CO
Dorothea Farris, Chairperson
ATTES F:
Pitl~ CoUn~ ~lerk
Count "s ~k/dresses.'.
Director of Aviation
0233 E. Airport Rd., Suite A
Aspen, CO 81611
cc: County Manager
~,~,, E. Mare Street
Aspen, CO 81611
Hilary ~{~tcher Smith, County Manager
Date:
NGSI-AsPen, L.L.C. dba
Aspen Mercantile
By: News & Gift Shops International,L.L.C.
its Manager
Date: q-to -
ATT E ST: 5~'~'~_~/~9,-~ Z
Corporate Secretary
Seal
Licensee's Address:
For receipt of mailed notices
hereunder:
P.O. Box 7608
San Antonio, TX 78207
RECOMMENDED FOR APPROVAL:
Ja es(:~. 'lwood, ~A."B., Dir. of Aviation
Date: -~F/.~:~ 0''(''
,~ ]~hn 21y, Coun~'~'Tat2orney )
APPROVED BY RISK:
Risk Management
503209
Page: 43 of 53
40
EXHIBIT "A"
REQUIRED CLAUSES
For purposes of these Required Clauses, "Contractor" means NGSI- Aspen, L.L.L. dba Aspen Mercantile.
Contractor shall be subject to the following provisions:
COMPLIANCE WITH PROCUREMENT CODE AND APPLICABLE STATE CONTRACTING
LAW
A. The Contractor acknowledges that this Agreement is ~ntered into subject to the requirements of
the "Pitkin County Procurement Code," (Section 8.5 of the Pitkin County Home Rule Charter,
Ordinance # 00-18, approved April 26, 2000). As such, the Contractor agrees to comply with ali
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 mason
of such violation of the Procurement Code or statutes.
WARRANTIES AGAINST CONTINGENT FEES, GRATUITIES, KICKBACKS AND CONFLICT
OF INTEREST
Oq ~,c
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 therefor.
C. Gratuity means a payment, loan, subscription, advance deposit of money, services, or anything of
more than nominal value, present or pronfised, 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 subcon-
tract or order. The Contractor is prohibited from inducing, by any means, any person employed under
this Agreement to ~ve up any part of the compensation to which he/she is otherwise entitled. The
503209
41
Contractor shall comply with all applicable local, state and federal "anti-kickback" statutes or regula-
tions.
E. Conflict of hnterest Prohibited. No official, officer, employee or representative of the County
during the term of this Agreement or one (1) 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 of the Procuren~ent Code).
F. Sub-Contract Clause. The prohibitions against contingent fees, gratuities, kickbacks and conflict
of interest prescribed in this Agre~aent 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 mariner 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 fi-om being a contractor or sub-contractor under County
contracts;
(3) Deduct fi-om the contract price or consideration, or otherwise recover, the value of anything
transferred or received by the Contractor; and
(4) Recover such value fi'om the other offending parties.
EQUAL EMPLOYMENT OPPORTUNIFY AND DISADVANTAGED/MINORITY/WOMEN
BUSINESS ENTERPRISES (DBE/MBE/WBE)
A. Pursuant to local, state and/or federal antiMiscrimination and affirmative action programs,
contractor shall meet all applicable requirements with respect to employment and subcontracting in
connection with Disadvantages/Minority/Women indiv/duals and enterprises (DME/MBE/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 Count,s commitments and goals with regard to the maximum utilization of
disadvantaged, minority and women business entarprises 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 infom~ation and reports and will permit access to its
books, records, and accounts by Pitldn 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, minorities and women by job category within its organization. Where the
Contractor has fifty (50) or more employees or it is participating in contracts with the County, wi'rich
LVIA DAVIS PITKIN COUNTY CO R 0.00
5(33209
42
exceed Figry-Thousand ($50,000.00) Dollars, an Affirmative Action Plan must be submitted to the
County when requested by the County Attorney's Office w/thin ten (10) days after selection.
F. Noncompliance. In the event of the Contractor's noncompliance with the nondiscrimination/
affirmative action provisions of any resultant contract, Pitkin County shall impose 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 part.
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:
(1)
Whenever the Contractor shall default fin performance of tltis Agreement in accordance with its
terms, and fails to cure or show cause why such failure to perform should be excused within tm
(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 fin default by reasons of any failure in performance of th/s 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 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 deternfine 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 therefor, 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 of cancellation, 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 fin 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
tcmxfinated by the notice of termination.
43
(4)
With the approval or ratification of the County, settle all outstanding 1/abilities and all claims
ar/sing out of such termination on orders or subcontracts, the cost of wlfich 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 tcnTnination for the convenience of
the County, the Contractor shall submit to the County kis 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, uxtless one or more extensions are granted in writing by the County. Upon
the Contractor's failure to submit a claim in the time allowed, the County may rev/ew 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 Contmetor 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 "Cancellation or 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 appeai. In any case where the County
has made a determination of the an~ount 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 tin, ely
appeal has been taken, or (2) the amount finally 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 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 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.
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.
6. INDEMNITY
44
A. The Contractor (including, by definition here and hereinafter, its officials, employees, agents and
representatives, subcontractors and suppliers), shall and hereby does release, discharge, indemn/fy 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
Cuntmctor's acts, errors or omissions; provided, however, that such indemnity shall not be construed as
an indenmity 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.
7. 12qSURANCE
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 omis-
sions. The following insurance coverage, at or above the limits indicated and including such endorse-
ments as are indicated by an "X", are required:
( 1 ) Statutory Workers' Compensation: Colorado statutory minimums
(2) Commercial General Liability- ISO 1998 Form or equivalent
(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 (Ail risks) to include (place X by applicable provisions): X Premises/Operations
Underground, Explosion & Collapse Hazard
X Products/Completed Operations
X Contractual Liability
X Independent Contractors and Subcontractors
X Broad Form Property Damage
X Personal Injury
(3) Business Auto Coverage:
Combined Single Limit Liability (each accident)
Coverage to include (place X by applicable provisions):
X Any Auto
Ail Owned Autos
Hired Autos
Non-Owned Autos
$1,000,000.00
583289
45
Garage Liability
(4) Special Coverages (check as appropriate and insert amount):
X~(1) Performance Bond 1/2 of the term year MAG
Labor and Material
Payment Bond
(2) Professional Errors and Omissions
(3) Aimraft Liability
__.(4) Owner's Protective
(5) Builder*s Risk mount of project
__.(6) Boiler and Machinery
__(7) Loss of Use Insurance
__(8) Pollution Liability
__(9) Crime, including Employee Dishonesty Coverage, or
Fidelity Bond
EVIDENCE OF INSURANCE SHOULD BE SENT TO:
Pitldn County
C/o Edna Adeh
0233 E. Airport Road, Suite A
Aspen, Colorado 81611
Fax: 970-920-5378
B. 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 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 term/nation. 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 coverages 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 clai~ns 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 Pit!dh.
(2) The insurance compames 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.
46
(3) Any and ali deductibles in the above-described insurance policies shall be assumed by and be for
the mount 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.
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.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.
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 final 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 mariner and at reasonable
times, for the purpose of determihing, by accepted accounting and auditing standards, compliance with
all provisions of the Agreement and applicable law.
i0. 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 perm/ssion, 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
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.
12. 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.
47
13.
14.
GOVERNMENTAL IMMUNITY
Contractor agrees and understands that Pitldn 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 the Colorado
Governmental Immunity Act, 24-I0-101, 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 wlfich is caused by the negligence or other misconduct of the County or its agent or
employees.
CURRENT YEAR OBLIGATIONS
The par~ies acknowledge and agree that any payments provided for hereunder or requirements
for future approphations shall constitute only currently budgeted expenditures of Pitkin
County. Pitkin County's obligations under this Agreement are subject to Pitkin County's
annual fight 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 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 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.
p&ge: 48 o¢ 50
10/19/2004 01:36Ifil
SILVIA DA IS PI KIN COUNTY CO R 0.00 D 0.00
503299
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593219
Page: 49 of' 5~
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503289
EXHIBIT "C"
ASPEN MERCHANTILE - COST BREAKDOWN
Estimate Sept. 3,2004
Lobby shop
Retail interior space
Storage - office
Added additional retail space
Remodeling approximately
60 lineal feet of casework
Gate shop
Retail interior space
Remodeling approximately
20 lineal feet of casework
TOTAL REMODELED SQ. FT.
263 sq. R.
26 sq. ft.
58 scl. fL
142 sq. ft
two exterior walls
335 sq. R.
two exterior walls
157 sq. ft.
14 sq.
r 15 sq: fL
492 SQ. FT.
1. Demolition & removal
2. Screening & protection
3. Framing - walls and ceiling
4. Electrical
5. Electrical fixtures
6. Glass
7. Entry door
8. Casework
9. Sheetrock
10. Painting
11. Flooring
12. Ceiling
13. Exterior faCade
14. Cleaning
ROUGH TOTAL
$ 2,000
$ 1,000
$ 7,000
$ 2,500
$ 5,OOO
$ 2,000
$ 5,5OO
$20,000
$ 1,500
$ 1,000
$ 3,000
$ 3,00O
$ 5,000
$ 1,500
$60,000
I..O a. .-,
503209