HomeMy WebLinkAboutbocc.ord.009.1999 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
APPROVING A LICENSE AND USE AGREEMENT BETWEEN
THE COUNTY AND DOLLAR RENT-A-CAR
FOR A TWO-YEAR TERM
AS AN "OFF-AIRPORT" RENTAL CAR LICENSEE
Ordinance No. #IN Series of 1999
WHEREAS, Pitkin County, Colorado as owner, sponsor and operator of the
Aspen/Pitkin County (Sardy Field) Airport (hereinafter the "Airport"), does provide various
spaces and areas for the use of the public and from time to time does and shall license or
permit the exclusive and nonexclusive use of parts of these areas to various individuals, firms
or corporations to serve the users of the Airport; and
WHEREAS, Pitkin County has the authority to regulate commercial activities, to
license space at the Airport, and to enforce these regulations and to set and collect fees for
these commercial activities pursuant to, inter alia, 1973 C.R.S. 30-35-202, 41-4-101 et sea.,
Title IV of the Pitkin County Code, Section 8.7 of the Pitkin County Home-Rule Charter; and
WHEREAS, "Off-airport" rental car companies/operator are defined as those
companies/operators located off-airport and not leasing space from the Airport, and engaged in
for-profit commercial rental of motor vehicles to passengers arriving at the Airport by air or
other ground transportation; and
WHEREAS, Pitkin County Ordinance #90-11 requires "off-airport" rental car
companies to enter into License and Use Agreements with the County and imposes regulations
and fees on "off-airport" rental car companies; and
WHEREAS, on the recommendation of staff and after a public hearing, the Board of
County Commissioners finds that approving the License and Use Agreement is in the best
interest of the County.
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF PITKIN COUNTY, COLORADO:
Section 1 That the fees and charges for entry and use of the Airport, or for any part
thereof, for off-rental car companies (hereinafter the "Companies"), shall be seven and one-
half percent (7 1/2%) of the gross revenues or gross receipts to the Companies, or which the
Companies are entitled to receive, for the rental of motor vehicles to airport customers.
Airport customers are defined as individuals who rent a motor vehicle from Licensee after
being transported from the Airport to Licensee's location by Licensee
Ordinance/License and Use Agreement between County and Dollar Rent-a-car
Page 2
Section 2. That the License and Use Agreements between Pitkin County and Dollar Rent-
a-Car which is attached hereto as Exhibit "A" and incorporated herein by this reference, is
hereby approved and adopted according to its terms and conditions.
Section 3. That the chairperson (or vice-chairperson) of the Board of County
Commissioners is hereby authorized and directed to execute this Ordinance, and the subject
Agreements on behalf of the County and any other documents necessary to accomplish the
transaction, which documents have been approved as to form by the County Manager,
Director of Aviation and County Attorney.
Section 4. That a copy of this Ordinance, including Exhibits, has been kept available for
public inspection prior to the public hearing thereon during normal business hours at the
Office of the Director of Aviation, Aspen/Pitkin County Airport, 0233 East Airport Road,
Suite A, Aspen, CO 81611 (970-920-5384).
Section 5. That a public hearing on this Ordinance has been duly noticed and held as
provided by law.
Section 6• That this Ordinance shall be published prior to and after adoption by title and
short outline only.
INTRODUCED, FIRST READ AND SET FOR PUBLIC HEARING AT A
REGULAR MEETING OF THE BOARD OF COUNTY COMMISSIONERS ON THE lath
DAY OF January , 1999.
NOTICE OF PUBLIC HEARING, INCLUDING THE TITLE AND A SHORT
SUMMARY OF THIS RESOLUTION PUBLISHED (no later than ten days in advance of the
public hearing thereon) IN THE ASPEN TIMES ON THE 16TH DAY OF January 1999.
APPROVED AND ADOPTED AFTER SECOND READING AND PUBLIC
HEARING ON THE 27th DAY OF January , 1999.
PUBLISHED AFTER ADOPTION BY TITLE AND SHORT OUTLINE IN THE
ASPEN TIMES ON THE 6th DAY OF February, 1999.
Ordinance/License and Use Agreement between County and Dollar Rent-a-car
Page 3
ATTEST: BOARD OF COUNTY COMMISSIONERS OF
PITKIN COUNTY, COLORADO
'*"�
J ette Jones Leslie La o , Chairperson
uty County C k
RECOMMENDED FOR APPROVAL:
*ze Kon an, County Manager
Scott E. Smith, A.A.E., Director of Aviation
APPROVED AS TO FORM:
I jih/I 'X
�5s County Attorney 117l
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sue\contract\terminal\rentcars\offarpt\dollar\ord99.doe
APPROVED BY BOCC
TABLE OF CONTENTS ON /- ;L7 Vf
License and Use Agreement APPROVED BY
ORD NANCE
Off-Airport Rental Car Operators #
Page Number
1. License of Premises......................................................... 1
2. Term........................................................................... 3
3. Payments and Security...................................................... 3
4. Reserved Rights of County................................................. 6
5. Use of Premises.............................................................. 8
6. Coordination with other Airport Users.................................. . 8
7. Off-Airport Rental Car Operators......................................... 9
8. Compliance with Applicable Laws and Regulations................... 9
9. Requirements of Licensee's Operations.................................. 10
10. Restrictions on Licensee's Operations.................................... 11
11. Licensee Reports and Books and Records; County's Right
toAudit......................................................................... 12
12. Environmental Quality Improvement Plan............................... 15
13. Grievance Procedure........................................................ 16
14. Snow Removal................................................................ 16
15. Licensee's Personal Property/Trademarks................................ 17
16. Indemnity and Insurance..................................................... 17
17. Assignment..................................................................... 20
18. Relationship of Parties....................................................... 20
19. Non-Liability of County's Agents and Employees...................... 21
20. Default.......................................................................... 21
21. Notices.......................................................................... 21
22. Representations of Licensee................................................. 22
23. General Provision............................................................. 23
24. Authority of Licensee's Representative................................... 23
LICENSE AND USE AGREEMENT
OFF-AIRPORT RENTAL CAR OPERATOR
THIS LICENSE AND USE AGREEMENT made as of the date last
below signed, is by and between the BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, COLORADO, ("County"), a Colorado home-rule County, as Licensor/Permittor,
and Dollar Rent-a-Car, Inc., an Oklahoma Corporation in good standing as Licensee or
Permittee ("Company").
WHEREAS, the County is the owner, sponsor and operator of the Aspen/Pitkin
County Airport (Sardy Field), located in Pitkin County in the vicinity of Aspen, Colorado
(hereinafter the "Airport"); and
WHEREAS, the County has the authority to operate and manage the Airport, to
regulate commercial activities at the Airport and to lease and license space thereon, pursuant
to, in er alia, C.R.S. Sections 30-11-107, 30-15-401, 30-35-201/202, 41-4-101 et se_c ., as
amended, Title IV of the Pitkin County Code, as amended and Section 8.7 of the Pitkin
County Home Rule Charter; and
WHEREAS, Licensee is engaged in the business of a commercial rental car operator in
which service and business it desires to non-exclusively occupy and use in common with other
Licensees and the Public some of the Commercial Traffic Circle of the Airport and the Public
Traffic Circle for commercial purposes; and:
NOW, THEREFORE, for and in consideration of the mutual covenants, terms and
conditions contained herein, the County and Licensee do mutually undertake and agree as
follows:
1. License of Premises. Subject to the provisions hereof and the continuing
performance by the Licensee of its obligations hereunder, County grants to Licensee the non-
exclusive right and license to conduct the following activities related to a car rental business at
the Airport for the term stated herein.
1.1. Customer Pick Up. The Company shall be permitted to pick up customers
by prior arrangement with said customers in the Commercial Traffic Circle outside the
"arrivals/baggage claim" area of the terminal. Access for such pickups shall be through the
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lane designated in that circle indicated as area # 5 on the attached Exhibit "A" . Pickup
shall be solely by means of a commercial auto, van or limousine clearly marked with the
Company's name and/or logo. The Company's vehicles shall not be permitted to park for
extended periods in the traffic circle, but may use the circle only for prearranged customer
pickup. Pick ups shall be made only in the curb area designated for off-airport rental car
pickup.
1.2. Customer Drop-off. Customers who have returned their rented vehicles to
the Company's off airport office and who are immediately departing by air carrier from the
Airport may be dropped off in the Public Traffic Circle in front of the Ticketing/Departures
area of the terminal by the Company's vehicles, courtesy vans and/or limousines. All
customer drop-off must be conducted in area # 1 as indicated on the attached Exhibit "A".
All of the traffic rules in force in the departures area shall be strictly observed by the
Company's drivers. Under no circumstances shall the Company pick up arriving customers
within the Public Traffic Circle.
1.3. Company shall be permitted to pick-up by prearrangement with its
customer and to drop off any customer who has returned his or her rented vehicle to the
Company's off airport office, at the location of any Fixed Base Operator (FBO) facility located
at the Airport where said customers have arrived or will be departing upon General Aviation
aircraft. The FBO pick-up and drop-off shall be as directed by the fixed-base operator.
1.4. Nothing contained herein is intended to prohibit the Company from
picking up members of the public who request this service from a vehicle either picking up a
pre-arranged customer or dropping one off, but this provision is not intended to in any fashion
allow the Company to be entitled to solicit business from its vehicles on the airport grounds.
Such pick ups shall be incidental to pre-arranged trips and pick ups by the Company.
1.5. Operations which shall not be permitted include specifically, but are not
limited to, the following:
1.5.1. Solicitation, either in person or by written materials (other than
those specifically approved by County), of customers in the air carrier terminal or anywhere
on the premises of the Airport.
1.5.2. Writing or execution of car rental contracts anywhere on the
premises of the Airport.
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1.5.3. Storage of rental vehicles anywhere on the premises of the
Airport. However, this shall not be construed so as to prohibit rental car customers from
parking their cars in designated public parking areas on the airport during the term of their
rental agreement.
1.5.4. Location of or permitting any customer to pick up or drop off
any rental vehicle on the premises of the Airport.
1.5.5. Maintenance of any rental booth, counter or other location, with
or without a Company representative on site, anywhere on the premises of the Airport. A
courtesy telephone listing at either the air carrier terminal or at any FBO premises shall not
constitute a booth or location under the terms hereof.
1.5.6. Parking or stopping any courtesy auto, van or limo in the Public
or Commercial Traffic Circles for any period of time other than to meet and load or drop-off
any customer who has previously contacted Company and requested a pick up or drop-off,
subject to the provisions of Section 1.1.1 through 1.1.4.
1.6. Any use of or occupancy of Airport real estate not expressly permitted by
this License is prohibited, except by separate prior written permission from the County and
under such terms and conditions as the County may require.
2. Term. The term of this License and Use Agreement shall commence on January 1,
1999 and expire onOctober 31, 2000, unless earlier terminated as provided herein.
3. Payments and Security.
3.1. In consideration of the rights and privileges granted Company under this
License and Use Agreement, in each calendar month throughout the term hereof, Company
shall pay County seven and one-half percent (7 1 2%) of all Company's gross receipts/gross
revenues attributable to motor vehicle rentals to the Airport customers.
3.2. Payments shall be made to the County monthly, by the twentieth (20th)
day of each month, based on the amount of gross revenues/gross receipts attributable to motor
vehicle rentals to Airport customers for the previous month. No payment shall be due the first
month of the term, and payment for the last month of the term will be due May 20, 2000. All
payments hereunder shall be considered delinquent if not received by the last business day of
the month due. All payments shall be made to the Pitkin County Treasurer, 530 E. Main
Street, Aspen, CO 81611. All delinquent amounts shall accrue interest on the entire unpaid
and delinquent balance at the rate of two percent (2%) per month. Default interest shall be
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immediately due and payable, along with the delinquent principal, within ten (10) days after
written demand. Amounts.received shall be credited first to any accrued interest, delinquent
principal and then to current payments due.
3.3. Immediately upon the Company's receipt of moneys from its activities
hereunder, the percentages of or minimums, costs, fees and charges against said moneys
payable to the County under the terms of this Agreement shall be vested in and become the
property of the County, and the Company shall hold and be responsible for said moneys as a
Trustee thereof until the same are delivered to the County.
3.4. Definitions for the purposes of calculation of "gross revenues" and "gross
receipts" percentage payments and payment shall be as follows:
3.4.1. As used herein, the term "rental car" or "motor vehicles" shall
consist of motor vehicles designed primarily for the carriage of passengers and commonly
classified as sedans, coupes, convertibles, station wagons, sport utility vehicles, four-wheel
drive vehicles, passenger vans, mini-vans, "Suburban"-type vehicles, and pick-up trucks rated
one-ton or less.
3.4.2. As used herein, the term "gross revenues", "gross receipts",
"gross revenues/gross receipts" shall mean all amounts received by Licensee, or which
Licensee is entitled to receive for the rental of motor vehicles. Gross revenues or gross
receipts or gross revenues/gross receipts to the Licensee shall be deemed received at the time
the sales, lease or service transaction occurs giving rise to Licensee's right to collect said
moneys, 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 if for credit, regardless of whether the Licensee
ultimately collects the moneys owed for said transaction from the customer involved. Any
gross revenues or gross receipts included in the formula for determining percentage fees owed
the County and determined by Licensee at a later date to be uncollectible shall not offset future
percentage fees owed the County. If the initial rental car contract entered into between
Licensee and a rental car customer is subsequently amended, solely because the customer's
actual time and mileage usage of the rental car vehicle differs from the usage contemplated by
the original contract, and the charges to be paid by the customer are therefore different from
the charges contemplated by the original contract, the percentage of gross revenues that the
County is entitled as fees hereunder shall be based upon the gross revenues that the Licensee
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actually receives or is entitled to receive, under the amended rental car contract with its
customer.
3.4.3. Gross revenues or gross receipts shall not include:
(1) federal, state ormunicipal sales taxes separately stated and
collected from customers;
(2) amounts Licensee receives, or is entitled to receive, for
refueling motor vehicles owned or leased by it;
(3) amounts Licensee receives, or is entitled to receive, for
charges for insurance coverage, including but not limited to personal accident insurance,
personal effects insurance, and collision damage waiver charges;
(4) amounts Licensee receives, or is entitled to receive, for the
sale, disposition, loss, conversion, or abandonment of Licensee's used motor vehicles and
other equipment, personal property, and trade fixtures;
(5) amounts which Licensee receives, or is entitled to receive, for
the repair of damages to its motor vehicles;
(6) amounts received for incidental services (ski racks, baby
seats, special tires), so long as the fee to 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.
It is not the intention of the parties hereto that the County shall get or
control the price of any service offered by Licensee to its customers; but rather to prevent the
Licensee from diverting income from basic car rental fees to accessory or incidental fees.
3.5. Gross receipts or gross revenues are only attributable to Airport
customers. Airport customers are defined as individuals who rent a motor vehicle from
Licensee after being transported from the Airport to Licensee's location by Licensee, as
provided above in Section 1.
3.6 Security. To secure the monthly payment obligation, Licensee agrees to
provide and County agrees to accept a Letter of Credit may payable to the County in the
Amount of Two Thousand, Five Hundred Dollars ($2500.00). This Letter of Credit will be
written by a Financial Institution located in Pitkin County in a form which is acceptable to
County and shall provide for payment to the County upon presentation to the maker. There
shall be no requirement of notice before demand of performance by the County of any kind
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other than presented for payment to be made. Final form of the Letter of Credit will be
acceptable to both parties.
If County shall receive payment from the Letter of Credit, such amount
shall be credited to amounts owed to County by Licensee.
Immediately after County receives payment on the Letter of Credit,
Notice shall be given to Licensee of payment. Licensee shall furnish county with another
Letter of Credit of identical terms and amount within five (5) days receipt of this Notice.
Failure to provide an identical replacement Letter of Credit shall constitute a default of this
Agreement.
Nothing herein shall imply that the amount of Two Thousand Five
Hundred Dollars ($2500.00) constitutes liquidated damages for default of this Agreement.
4. Reserved Rights of County. County reserves the following rights with respect to
the Premises and the uses and operations to be conducted thereon by Licensee.
4.1. County reserves the right to unimpeded access over and across the
Commercial Traffic Circle and Public Traffic Circle; provided, that County shall not, in the
exercise of this reserved right, unreasonably interfere with Licensee's use of same. County
shall be entitled to enter upon those areas, 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.
4.2. County reserves, for the use and benefit of the public, the right of flight
for the passage of aircraft in the air space above any portion the surface of the Airport in
which Licensee has been granted rights hereunder, together with the right to cause in and
around said air space such noise as may be inherent in the operation of aircraft utilizing the
Airport.
4.3. County reserves the right to direct, in its sole discretion, all activities of
the Licensee at the Airport in the event of an emergency.
4.4. County reserves the right to grant leases, licenses, uses, permits or rights
to other parties to operate on the Airport so long as such other grants do not unreasonably
interfere with Licensee's operations.
4.5. The County reserves the right to direct, in its reasonable discretion,
Licensee's operations in the event that Licensee's operations are unreasonably interfering with
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the use by others of the Airport; , to restrict the use of "public" areas of the Air-Carrier
Terminal and public-access curbs, sidewalks and roadways in favor of the traveling public.
4.6. County reserves the right to establish and enforce reasonable rules and
regulations for the conduct of activities and uses permitted herein. County reserves the right
to further plan, develop, improve, remodel and/or reconfigure the Airport, including existing
vehicle and pedestrian traffic patterns, as County deems appropriate, without interference or
hindrance by the Licensee, and County shall have no liability hereunder to Licensee by reason
of any interruption to Licensee's operations on the Premises occasioned by such County
activities; provided, however, that County shall consult in advance with Licensee on such
changes and if Licensee shall be unable to conduct reasonably normal seasonal business
operations on the Premises by reason of any such County activities, then the fees hereunder
shall be equitably adjusted during the period of such interruption.
4.7. The County reserves the right, in its sole discretion, to enter into
agreements for the financing or re-financing of the Airport, and Licensee agrees to cooperate
in providing information to prospective lenders and in providing estoppel certificates, if so
requested. Not withstanding Section 3., such information provided by the Licensee shall be
limited to certified financial statements of gross revenue or receipts paid to the County under
the terms of this Agreement.
4.8. County reserves the right to prohibit any commercial or non-commercial
activity by Licensee, its agents and employees on the Airport, which activity is not expressly
permitted herein.
4.9. County reserves the right to establish and enforce reasonable rules and
regulations for the conduct of activities and uses permitted herein.
5. Use of Premises. Any occupancy, use, activity, display or product not specifically
permitted herein shall be and is hereby prohibited, except as by separate prior written permis-
sion from the County and under such terms and conditions as the County, in its sole discre-
tion, shall determine.
6. Coordination with other Airport Users. County and Licensee acknowledge that
each has rights and obligations arising from various third-party agreements with other Airport
users. County and Licensee agree to cooperate with each other to effectuate these third-party
agreements, so long as such agreements are not illegal, impossible or do not unreasonably
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interfere with Airport operations or the rights and obligations of the various parties including
Licensee. County and Licensee acknowledge their respective obligations as signatories under
the following agreements:
6.1. Those certain on-airport rent-a-car (RAC) License and Use Agreements,
variously dated, between the County and Budget Rent-A-Car, Eagle Rent-A-Car, Avis Rent-a-
Car, Hertz Corporation, Thrifty Car Rental, and any other on-airport or off-airport rental car
agency.
6.2. Those certain Lease and Use Agreements between the County and Air
Wisconsin Airlines Corporation, and similar lease or license agreements between the County
and other airlines and any operating agreements entered into from time to time, between and
among the County and/or Airport's airlines.
6.4. Those certain Use and Lease Agreements between the County and Aspen
Base Operation, the full-service FBO.
6.5. That certain agreement for paid parking services between Pitkin County
and APCOA, Inc.
6.6. Those agreements for commercial ground transportation including on
airport car rental, taxis, limousines and buses.
6.7. Such further and other agreements as the County may amend or enter into
from time to time in the normal operation of the Airport; provided that Licensee shall, upon
request, be provided with copies of any agreements that are connected to this obligation to
cooperate, as set forth herein.
7. Off-Airport Rental Car Operators. The County reserves the right, but shall not be
obligated, to permit other rental car companies, with whom the Airport has not executed on-
Airport License and Use Agreements, to enter upon the Airport in general, and the Air-Carrier
Terminal in particular, to pick-up and drop-off their customers, to purchase advertising space
on the Airport and within the Air-Carrier Terminal, and to establish a courtesy phone system
on the Airport and within the Air-Carrier Terminal, all subject to fees and charges in common
with other users of that classification.
8. Compliance with Applicable Laws and Regulations. In connection with its use of
the Premises and the conduct of its operation thereon, the Licensee shall:
8.1. Comply with all applicable laws, rules and regulations of the County of
Pitkin, the State of Colorado and the United States of America and any and all departments
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and agencies thereof, as the same may now exist or may be hereafter promulgated or amended
from time to time, Licensee 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. Present applicable Airport regulations are as follows:
8.1.1. Airport Regulations, Title IV, Pitkin County Code;
8.1.2. Airport Certification Manual with Airport Emergency Plan,
inclusive;
8.1.3. Airport Security Plan;
8.1.4. Ground Transportation Rules and Regulations;
8.1.5. Motor Vehicle Fuel Farm Rules and Regulations; (applicable
only to users of the facility).
8.2. Comply with the notification and review requirements of Part 77 of the
Federal Aviation Regulations 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.
8.3. Not discriminate against any person or class of persons by reason of race,
color, sex, creed, religion, handicap or national origin in providing any services or in the use
of any facilities provided for the public in any manner prohibited by Part 21 of the Regulations
of the Office of the Secretary of Transportation, and shall comply with the letter and spirit of
the Colorado Anti-Discrimination Act of 1957, as amended, and any other laws and
regulations respecting discrimination in unfair employment practices, and shall comply with
such enforcement procedures as any governmental authority might demand that the County
take for the purpose of complying with any such laws and regulations.
8.4. With reasonable advance notice, pay all taxes lawfully assessed against
Licensee by reasons of Licensee's use and occupancy of the Airport in the conduct of
Licensee's business thereon.
8.5. With respect to the parking regulations of the City of Aspen and the Town
of Snowmass Village, Licensee agrees:
8.5.1. To distribute with each rental car contract an official parking
information brochure that is published and provided free of charge to Licensee by the City of
Aspen and/or the Town of Snowmass Village.
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9. Requirements of Licensee's Operation. It is of primary importance to the County
that, in the conduct of Licensee's use of the Airport facilities, Licensee provide off airport
rental car services of highest quality to users of the Airport commensurate with off airport
rental car operations of this size and traffic volume at first-class U.S. destination resort
locations. To this end, Licensee agrees to provide the following services in the conduct of its
operation:
9.1. Licensee shall provide sufficient and adequately-trained and supervised
personnel, sufficient rentable vehicles and necessary equipment and supplies to offer rental car
services consistent with first-class national rental car operations in similar first-class U.S.
resort operations. Rented vehicles must be clean, well-maintained, safe and contain all
necessary safety equipment for mountainous, snow ski season operation including, during
winter season, mud and snow tires rated "M/S" and accepted by the Colorado State Patrol
under the then-existing "chain law" for mountain passes.
9.2. Licensee shall conduct, direct and supervise in a prompt, safe and efficient
manner all traffic on the Airport in connection with its operations, including employee and
customer motor vehicle traffic and pedestrian traffic.
9.3. Licensee's employees shall be safety-conscious, environmentally-sensitive,
helpful and courteous at all times, consistent with acceptable customer relations practices at
first-class U.S. destination resorts.
9.4. Licensee hereby warrants and represents that in the conduct of its
commercial automobile rental business within Pitkin County, it shall at all times maintain full
compliance with the applicable provisions of the Pitkin County Code, including specifically the
Land Use Code (Title Il). Upon a determination by the County that Company does not have
all necessary and appropriate permits and approvals required by the Land Use Code for the
operation of its business, Company shall be deemed in substantial breach of its obligations
hereunder.
10. Restrictions on Licensee's Operations. Licensee, in the conduct of its operation,
shall be subject to the following limitations and restrictions:
10.1. Each courtesy car, van or other motor vehicle which shall be employed
by Licensee in its operations, except Licensee's rental vehicles, at the Airport shall be subject
to prior written approval of the Director of Aviation, or his/her designee, particularly with
respect to its overall size, weight, passenger accommodations and any signs, logo or other
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advertising thereon. The Director of Aviation, or the designee, shall be provided by the
Company a current written list of all such vehicles operated by Licensee and may, through
his/her Regulation Enforcement Officers or other agents deny access to the Airport premises to
any vehicle not previously approved hereunder. The operation or attempted operation of any
such non-approved vehicle by Licensee at the Airport at any time shall constitute a breach of
Licensee's obligations under Sections 8, 9, and 20 hereof.
10.2. Licensee shall not place any displays or signs in any location at the
Airport except of such design, content and structure as shall be approved by County. Any
sign permitted by County shall, in addition, at all times comply with all applicable Airport
policies, rules and regulations.
11. Licensee Reports and Books and Records: County's Right to Audit. The rights
and obligations of the parties with respect to Licensee's reports and books of account are as
follows:
11.1. Licensee shall file the following reports:
11.1.1. At the same time that Licensee is obligated to pay its monthly
percentage of gross receipts herein, Licensee shall provide the Director of Aviation with an
itemized statement showing the gross amount of revenues or receipts for all car rental
transactions at its Pitkin County location Licensee enjoyed during the preceding calendar
month, broken down by gross revenues derived from:
(a) the time and mileage and other includable revenue arising from the
rental of motor vehicles; and
(b) the time, mileage and other includable revenue arising from the
rental of all motor vehicles that is attributable to Airport customers during said month. Said
statement shall be signed and certified as complete and correct by an official of Licensee
authorized to so certify.
11.1.2. Licensee shall file a report identifying all courtesy vehicles (by
vehicle make, model, VIN, and license number) to be operated at the Airport.
11.1.3. At the beginning of this term and promptly updated as often as
such forms are changed by Licensee, a sample copy of all Licensee's rental contact form(s) in
use.
11.1.4. Annually, within thirty (30) days after the end of every
operations year, at the expiration of the License term and upon assignment of Licensee's rights
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hereunder, Licensee shall file a statement of gross revenues or gross receipts reportable under
this Agreement, which report shall be prepared, signed and certified as correct by a corporate
officer of Licensee; or Licensee shall provide that all revenues and receipts reportable under
this Agreement shall be first deposited in a bank account located in a chartered financial
institution within Pitkin County, Colorado.
11.2. Licensee shall maintain full and accurate books of account and records
from which "gross revenue" and "gross receipts," as defined herein, the amount and nature of
all business transacted on or though the Airport and the amount of percentage rental owed the
County hereunder, particularly as it relates to all revenues or receipts attributable to Licensee's
location in Pitkin County, can be determined and verified, according to standard and accepted
accounting and auditing practices. The books of account and records that Licensee must
maintain must include, but need not be limited to, legible, true and accurate copies of all
written and electronic records and reports kept in the normal course of Licensee's business
including, without limitation, all motor vehicle rental contracts and canceled contract forms,
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 Licensee to its franchiser and all computer and/or microfilm or
microfiche reproductions of the above. 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. If such records are not stored within Pitkin County, it shall be Licensee'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.
11.3. Licensee's financial record keeping and reporting system for all business
conducted on or through the Airport or subject to this Agreement shall include, without
limitation, the following'
11.3.1. Complete, accurate and legible copies of all motor vehicle
rental contracts (including canceled and spoiled contract forms and rebookings), for all rentals
attributable to Licensee's Pitkin County operations, which contracts shall be pre-printed with
consecutive numbers.
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11.3.2. Adequate financial controls, under generally accepted
accounting principles and auditing standards, to ensure complete and accurate recording and
reporting of all revenues, including commissionable revenues.
11.3.3. Daily, weekly or monthly reports identifying all motor
vehicles (by vehicle make, model and license number), available for rental or rented on or
through the Airport for those periods throughout the term of this Agreement.
11.3.4. Any other document or procedure which, in the
reasonable discretion of the County, is necessary or useful to determine or verify Licensee'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 Licensee.
11.4. The County, annually, at the end of the term herein and upon a request
by Licensee of assignment of its rights hereunder, unless expressly waived by the County, may
conduct audits of Licensee's books of account and records, which audits shall be conducted
upon reasonable notice, but not less than five (5) days advance written notice, to Licensee and
during Licensee's normal weekday business hours. For purposes of this License and Use
Agreement, the annual audit period shall be deemed to commence on January 1 of each year of
the Agreement and to conclude on December 31 of that year.
In performing said audits, County shall be entitled to review, and Licensee shall
be obligated promptly to provide to the County upon demand therefor, all of the books of
account and records that Licensee is obligated to maintain pursuant hereto, as well as other
records, documents and files in Licensee's possession, custody or control during the term
hereof that the County, or its auditor, determine, in their sole discretion, are useful, relevant
or necessary to determine or verify the correct amount of reportable, includable and
excludable revenues and gross receipts enjoyed by Licensee, and the correct amount of
percentage rental owed by Licensee to the County, for the period involved. Should Licensee
fail to maintain the books of account and records required to be maintained pursuant hereto,
or should Licensee fail to permit County or its auditor to review Licensee's books and records,
and other documents and files, as required by this subparagraph, said default is agreed by the
parties to be a material breach of this License. If any audit shows percentage compensation
and other fees and charges that should have been paid to the County by the Licensee pursuant
to this Agreement were understated or underpaid for any period involved, Licensee shall,
within thirty (30) days notice by County of and such deficiency, pay to the County the full
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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 amount of underpayment exceeds exactly one percent (1%)
of the total percentage compensation that was owed by Licensee to the County for the period
involved, Licensee, in addition to paying the County the underpayment owed and interest
accrued thereon, shall within thirty (30) days' written notice by County reimburse the County
for the cost of the audit not to exceed fifteen hundred dollars ($1500.00). If the audit discloses
overpayment of the percentage compensation paid to the County by Licensee, the County shall
refund the amount of overpayment to Licensee within thirty (30) days of said audit.
The County shall hold all information obtained from any such audit in confidence,
except as may be necessary to enforce the County's rights under this Agreement, except with
respect to tax proceedings, and except with respect to any legal requirements or Court Order
to disclose said information.
11.5 Prior to the approval by the County of assignment or transfer of any
financing, equity or operational interest in this License or Licensee of 5% or greater,
excluding publicly traded stock, the County shall be entitled to a gross revenue audit as
provided hereinabove at the sole expense of the Licensee.
12. Environmental Quality Improvement Plan (EQIP).
12.1. Pitkin County's stated goal is to plan for and continually reduce
environmental degradation caused by rental car operation in areas including, without
limitation, pollution by CO, CO2, CFCs, particulates, other internal combustion engine
emissions, traffic congestion, gasoline consumption and fillage fumes, and car wash waste
water.
It is the express intention of the BOCC that all County Lessees, Licensees and
Permittees (LLPs) including specifically rental car operators, strictly comply with all
environmental rules and regulations and be sensitive to all present and future environmental
issues. The County gives notice that environmental compliance and sensitivity to
environmental issues are and will be substantial factors in future performance reviews and
procurements.
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12.2. Until December 31, 2000 , Licensee shall diligently accomplish and/or
comply with Airport Environmental Quality Improvement Plan (EQIP) regarding its vehicles
used on the Airport premises as follows:
12.2.1. Promptly after the execution of this Agreement, Licensee agrees
to institute the following:
12.2.2.1. No cars in control of Licensees' employees during all
of its operations, including washing, fueling and moving, shall be permitted to idle for longer
than one minute, but shall instead be turned off and restarted.
12.2.2.2. Chloroflourocarbons (CFC's).
12.2.2.2.1. Licensee shall purchase and place into
service at this Location vehicles with non-CFC or reduced-CFC air conditioning promptly
during the first model year such vehicles are available from their respective manufacturers for
fleet purchases and thereafter as available.
12.2.2.2.2. Licensee shall be permitted to advertise
availability of non-CFC or reduced-CFC cars, in signs approved by the County hereunder.
13. Grievance Procedure. The parties each recognize that it is in the public interest
and to their mutual benefit that a satisfactory range of rental car operation services be made
available to the public in a prompt, efficient and courteous manner. To that end, Licensee and
County shall meet together from time to time, upon written request of County, for the purpose
of addressing any complaints which may have been received by County and reviewing in
general the services being furnished by Licensee related to its Airport activity. Licensee
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.
14. Snow Removal. County shall, at County's own expense, and subject and
secondary to County's obligation to maintain clear public roads and runways on the Airport,
remove the snow from those areas of the Premises which are open to public use and which are
utilized for the passage of motor vehicles 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.
15. Licensee's Personal Property/Trademarks. Licensee represents that it is the owner
of or fully authorized to use any and all services, processes, machines, articles, trademarks,
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logos, names or slogans to be used by it in its operations under or in any way connected with
this Agreement. Licensee agrees to save and hold the County, its officers, employees, agents
and representatives free and harmless of and from any loss, liability, expense, suit, demand or
claim alleged or made by a third party 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 Licensee under or in any
way connected with this Agreement.
16. Indemnity and Insurance.
16.1. The Licensee, (including, by definition here and hereinbelow, the
Licensee's employees, officers, agents, representatives, contractors and invitees) shall 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 intentional act or negligent act, error or omission by the Licensee
arising out of the operations of Licensee under or in any way connected with this Agreement,
or for any resulting liability alleged to accrue against the County on account of such acts,
errors or omissions; provided, however, that such indemnity shall not be construed as an
indemnity for bodily injury, death, personal injury, or property damage arising from the
wholly, or in part, negligence or intentional acts of the County or its employees.
16.2. For acts, errors or omissions described in paragraph 16.1 above, the
Licensee further shall investigate, process, respond to, adjust, provide defense for and defend,
pay or settle all claims, demands, or lawsuits related to such acts, errors and omissions
hereunder at its sole expense and shall bear all other costs and expenses related thereto.
16.3. To fund this indemnity, in whole or in part, the Licensee shall secure and
maintain for the term of its contractual relationship with the County such insurance policies,
from companies licensed to conduct business in the State of Colorado, as will protect itself, the
County (with the County named as additional insured), and others as specified, from claims
for bodily injuries, death, personal injury or property damage, which may arise out of or
result from the Licensee's intentional or negligent acts, errors or omissions arising out of the
operations of Licensee under or in any way connected with this Agreement. The following
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insurance coverage, at or above the limits indicated and including such endorsements as are
indicated by an "X", are required:
16.3.1. Statutory Worker's Compensation --
Colorado statutory minimums
16.3.2. Commercial General Liability --
Policy Limits: Bodily Injury/Property
Damage Combined Single Limit of$1,000.00
Deductible: No greater than $1,000.00;
Endorsements:
x Comprehensive Form (All risks)
x Premises/Operations
^ Underground, Explosion & Collapse Hazard
x Products/Completed Operations
x Broad Form Blanket Contractual (Hold Harmless
Coverage)
x Independent Contractors and Subcontractors
x Broad Form Property Damage
x Personal Injury, with Employment Exclusion Deleted
16.3.3. Comprehensive Motor Vehicle Liability Insurance --
Policy Limits: Bodily Injury/Property
Damage Combined Single Limit of
$ 1.000 000;
Deductible: no greater than $1,000.00;
Endorsements:
x Any Auto
x All Owned Autos
x Hired Autos
x Non-Owned Autos
— Garage Keepers
16.3.4. Special Coverages --
x (1) Performance Surety: as set forth hereinabove
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(2) Building contents: to the full replacement value of
Licensee's equipment, trade fixtures and personal and
business property
(3) Business interruption: the full value of Licensee's
extra costs and lost profits for 60 days' interruption of
operation (may be waived by County upon separate,
express, written assumption of risk by Licensee)
16.4. To provide evidence of the required insurance coverages, copies of
Certificates of Insurance in a form acceptable to the County shall be filed with the County
(through the Director of Aviation) within 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 this Agreement and grounds for termination. These Certi-
ficates of Insurance shall contain a provision that coverage afforded under the policies will not
be canceled or materially altered unless at least thirty (30) calendar days prior written notice
by certified mail, return receipt requested (effective upon proper mailing), has been sent to the
County (through the Director of Aviation). (For purposes of this provision, "materially
altered" shall mean a change eliminating or reducing the types of coverages available for the
protection of the County and required herein, including a change to policy limits as set out in
the then-current policy declarations page.)
16.5. In addition, these Certificates of Insurance shall contain the following
clauses:
16.5.1. The clause "other insurance provisions," in a policy in which
the County of Pitkin is named as an insured, shall not apply to the County of Pitkin.
16.5.2. The insurance companies issuing the policy or policies shall
have no recourse against the County of Pitkin for payment of any premiums or for assessments
under any form of policy.
16.5.3. Any and all deductibles in the above-described insurance
policies shall be assumed by and be for the amount of, and at the sole risk of the Licensee.
16.5.4 Location of operations shall be: "all operations and areas on the
Aspen/Pitkin County Airport conducted by or occupied by Licensee."
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17. Assignment. Licensee shall not, by act or operation of law, assign this License
and Use agreement, an interest herein, any right or obligation of Licensee hereunder, or a
controlling interest in the ownership or operation of Licensee's business entity, without the
prior written consent of County, which consent shall not be unreasonably withheld. In support
of its right to approve proposed assignments, the County may require, in advance of any
proposed transaction restricted hereby, Licensee to provide evidence of the successful relevant
business experience and business and financial stability of the assignee/transferee, in the
County's reasonable commercial discretion, and an audit of full payment of all costs, fees and
charges to the effective date of the proposed transaction.
For purposes of this provision, an "assignment" shall include any sale, grant,
conveyance, transfer, sublicense, encumbrance or similar transaction, however styled,
disposing of or creating rights or obligations in third parties affecting this Agreement.
Examples of transactions covered by this restriction include without limitation: any
assignment for security purposes; any assignment to or by a trustee or receiver in any federal
or state bankruptcy, receivership or other insolvency proceeding; any assignment of all or
substantially all of Licensee's assets; and the assignment, in one or a series or related
transactions, of fifteen percent (15%) or greater of the Licensee's voting stock.
18. Relationship of Parties. It is the intent and agreement of the County and the
Company that they shall have the relationship respectively of Licensor/Licensee and
Permittor/Permittee hereunder, and nothing.contained herein shall be deemed or construed to
constitute the parties as partners or joint venturers, and in no event shall County be liable for
any loss which may result from the operations of Licensee upon the Premises or for any
indebtedness incurred by Licensee in the operation of its business on the Premises or for the
claims of third parties against Licensee in the conduct of its business.
In addition, County shall not be liable in any manner to the Licensee for any damages
the Licensee may incur due to the inability of the County to deliver possession of the Location,
or any part thereof, to the Licensee for reasons beyond the reasonable control of the County.
19. Non-Liability of County's Agents and Employees. No official, agent, or
employee of County shall be personally liable to Licensee in the event of any default or breach
hereunder by County.
20. Default. Failure to perform or comply with any of the provisions of this
Agreement, including the failure to remit any fees or charges as contained in Section 3 hereof
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or the failure to make or provide reports and an accounting as required in Section 11 hereof,
shall constitute a default of this Agreement.
If any party is or becomes a debtor in a bankruptcy proceeding before any
United States District Court, either voluntarily or involuntarily, such event shall constitute a
default of this Agreement.
If the party in default of this Agreement does not cure such default within ten
(10) days after receipt of written notice of default, the non-defaulting party may declare this
Agreement terminated and all obligations to perform hereunder at an end. Declarant of
termination of this Agreement shall be given to the opposite party. The date of termination
shall be fixed as the expiration of ten (10) days after receipt of written notice of default.
At the termination of this Agreement, all fees, charges and other remittances,
which are unpaid shall become immediately due and payable. All accounts and remittances not
paid at the termination of this Agreement shall accrue interest at the rate of two percent (2%)
per month.
21. Notices. All notices required or authorized to be given hereunder shall be in
writing and shall be served upon the party entitled thereto by certified mail, return receipt
requested, addressed to such party at its address appearing on the signature page of this
License , 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.
22. Representations of Licensee. Licensee represents and warrants to County as
follows:
22.1. Licensee, and those individuals executing this License on behalf of
Licensee, represent and warrant that they are familiar with section 18-8-301, tt seq. of the
Colorado Revised Statutes (Bribery and Corrupt Influences) and Section 18-8-401, _Qt 5eq. of
the Colorado Revised Statutes (Abuse of Public Office) and that no violations of the provisions
thereof are present.
22.2. Licensee, and those individuals executing this License on behalf of
Licensee, represent and warrant that to the best of their knowledge no employee of Pitkin
County has personal or beneficial interest whatsoever in this License or in the business to be
conducted upon the Premises by the Licensee.
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23. General Provisions.
23.1. This License 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 understanding between
the parties are expressly agreed to have merged herein.
23.2. The provisions of this License shall be severable and the invalidity of any
provision hereof shall not affect the validity of any other provision hereof.
23.3. This License may be modified or amended or supplemented only by an
instrument in writing signed by the parties hereto. The County's representative for the
administration of this Agreement shall be the Director of Aviation or his/her designee in
writing; provided, however, that all matters affecting material terms of this Agreement,
including term, fees and charges and use of Location by Licensee, shall only be amended by a
writing approved by a Resolution of the Board of County Commissioners at a duly-noticed
public meeting.
23.4. 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.
23.5. 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
therefrom.
23.6. 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 proceedings.
23.7. This License shall be governed by and construed in accordance with the
laws of the State of Colorado and venue is agreed to be exclusively in the courts of Pitkin
County, Colorado.
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23.8. This License shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, successors and assigns.
23.9. This License shall be executed in duplicate originals, with one original to
be held by each party.
24. Authority of Licensee's Representative. As an inducement to the County to
execute this Agreement, the undersigned representative of Licensee represents that he/she is
expressly authorized to execute this Agreement and to bind Licensee to the terms and
conditions hereof and acknowledges that the County is relying on this representation,
authorization and execution.
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IN WITNESS WHEREOF, the parties have executed this Agreement, as follows:
County: Licensee:
FOR THE BOARD OF COUNTY JFC Automotive Rental Group, LLC
COMMISSIONERS OF d.b.a. Dollar Rent-a-Car
PITKIN COUNTY, COLORADO an Oklahoma L
i
By
Chair JFC Automotive Rental Group, LLC
d.b.a Dollar Rent-a-Car
Date: y Date
gin
ST:
By:
County (SEAL) LLC
Date: v — Date:
County's Address: Licensee's Address (for receipt
c/o County Manager of mailed notices hereunder):
506 East Main Street //o Zc..f.0 A�,v7- 4 fiR,-e
Aspen, Colorado 81611 aS�%D S. �c.��f.y_y ,S�•D /O�
Airport's Address:
0233 East Airport Road
Aspen, Colorado 81611
APPROVED BY BOCC
ON
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RECOMMENDED FOR APPROVAL:
I.
Suzann onchan
County anager
Tom Oken
Administrative Services Director
Scott E. Smith, A.A.E.
Director of Aviation
APPROVED AS TO FORM:
John Ely 9lq
V County Attorney
winwordlsuelcontract\rentcarslo ffarpt\dolladcontrct99.doc
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