HomeMy WebLinkAboutbocc.ord.012.1999 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
APPROVING A LEASE AND USE AGREEMENT
FOR AIRPORT ADVERTISING SERVICES
BETWEEN TRANSPORTATION MEDIA INC., A DIVISION OF ELLER MEDIA
AND PITKIN COUNTY
/Ordinance# ;2_� , Series of 1999
RECITALS
1. Pitkin County, a Colorado home-rule county, is the owner, sponsor and operator of the Aspen/Pitkin County Airport (Sardy
Field), located in the vicinity of Aspen, Colorado, and has the authority to regulate commercial activities and to lease and
license space at the Airport, pursuant to, inter alia, 1973 C.R.S. 41-4-101 et seq., 30-35-202, Title IV of the Pitkin County
Code, and Section 8.7 of the Pitkin County Home Rule Charter; and
2. The Aspen/Pitkin County Airport has conducted a competitive procurement process for the selection of an operator of the
airport's commercial terminal building advertising services; and
3. Transportation Media Inc., a Division of Eller Media was selected as the top-ranked proposer and is qualified to operate the
airport's advertising services at the commercial airline terminal to provide advertising services to users of the airport; and
4. Pitkin County desires to enter into a Lease and Use Agreement with Transportation Media Inc., a Division of Eller Media,
for the provision of these advertising services for a term of five(5)years; and
5. On the recommendation of staff, the Board of County Commissioners finds that the Lease 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, THAT:
Section 1. Approval and Adoption. That the Lease and Use Agreement between the County and Transportation Media Inc., a
Division of Eller Media, attached as Exhibit A, and incorporated herein by this reference, is hereby approved and adopted.
Section 2. Authority to Execute. The Chair(or Vice-Chair) of the Board of County Commissioners is hereby authorized and
directed to execute on behalf of the County this Ordinance and the subject documents to accomplish the transactions that have been
approved as to form by the County Manager and County Attorney.
Section 3. Copies for Public Inspection. That true and correct copies of the License and Use Agreement(Exhibit "A") shall
be kept available for public inspection during normal business hours in the office of the Pitkin County Clerk and Recorder, Pitkin
County Courthouse, 530 E. Main, Aspen, Colorado 81611, and the office of the Director of Aviation, 0233 E. Airport Road, Suite
A, Aspen, Colorado 81611 (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 April 14, 1999 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 exhibits.
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INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING AT THE REGULAR MEETING ON THE 24th DAY OF
March, 1999.
NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE 27th DAY OF March, 1999.
APPROVED AND ADOPTED AFTER SECOND READING(OR SUBSEQUENT READING) AND PUBLIC HEARING ON
THE 14th DAY OF April , 1999.
THIS ORDINANCE SHALL BECOME EFFECTIVE 30 DAYS AFTER PUBLICATION FOLLOWING FINAL ADOPTION BY
THE BOARD OF COUNTY COMMISSIONERS.
BOARD OF COUNTY COMMISSIONERS
ATTES OF PITKIN COUNTY, COLORADO
3 Je Jones, Deputy Clerk and ecorder *Lesamont, C
Date Date
APPROVED AS TO FORM: MANAGER APPROVAL:
John Ely, Coun Su Konch t
County Manager
RECOMMENDED FOR APPROVAL:
' e . , /
Scott Smith, Director of Av atioi n Tom Oken, Director of Administrative Services
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APPROVED BY CONTRACT U4
ORDI ANCE
Table of Contents
Airport Advertising Lease and Use Agreement
1. PREMISES,TERM, USES,REQUIREMENTS,RESTRICTIONS.............................................................I
A. PREMISES: .......................................................................................................................... .........................I
1. Demise of Premises....................................................................................................................................1
2. Description of Premises.............................................................................................................................2
3. Map of Premises.........................................................................................................................................2
4. Restricted entry/occupancy........................................................................................................................2
5. Additional Premises. ..................................................................................................................................2
6. Acceptance of Premises..............................................................................................................................3
B. TERM. .................................... .......................................................................... ............................................3
1. Initial Term.................................................................................................................................................3
2. Renewal Term.............................................................................................................................................3
3. Continued Occupancy with Consent of County(Holdover).......................................................................3
4. Continued Occupancy without Consent of County.....................................................................................3
C. USES...............................................................................................................................................................4
1. Use of Premises..........................................................................................................................................4
2. Required Uses....................................................................................................................................:.......4
3. Exclusive Right to Airport Advertising Services.........................................................................................4
4. Prohibited Uses..........................................................................................................................................4
D. REQUIREMENTS:..................................................................................................................... ...................5
1. Requirements ofLessee's Operations.........................................................................................................5
2. Service........................................................................................................................................................5
3. Trade Fixtures, Furnishing and Equipment...............................................................................................5
4. Environmental Quality Improvement Plan(EQIP)....................................................................................5
E. RESTRICTIONS............................................................................................................................................6
1. Restrictions on Lessee's Operations...........................................................................................................6
2. Lessee shall be subject to any restrictions..................................................................................................7
3. Notices of Non-Compliance or Satisfactory Performance.........................................................................7
II. MINIMUM ANNUAL GUARANTEE AND PERCENTAGE OVERRIDE,ADDITIONAL RENT,
PAYMENTS,SURETY,AND REPORTS AND AUDITS.......................................................................................8
A. MINIMUM ANNUAL GUARANTEE AND PERCENTAGE OVERRIDE.................................................8
1. Definition of Minimum Annual Guarantee and Percentage Override. ......................................................8
2. CalculationMAG.......................................................................................................................................9
3. Definitions..................................................................................................................................................9
B. ADDITIONAL RENT..................................................................................................................................12
C. PAYMENTS.................................................................................................................................................12
D. SURETY.......................................................................................................................................................14
1. Performance and Payment Security. .............................................................................14
2. Types of Security......................................................................................................................................14
3. County Use of Required Security.............................................................................................................14
4. County ReturnlRelease of Required Security...........................................................................................15
E. REPORTS AND AUDITS............................................................................................................................15
1. Lessee Reports..........................................................................................................................................15
2. County's Right to Audit............................................................................................................................17
III. COUNTY RESERVATIONS OF RIGHTS...................................................................................................20
IV. RELEASE,INDEMNITY AND INSURANCE.............................................................................................23
A. DEFINITIONS..............................................................................................................................................23
B. RELEASE AND INDEMNITY....................................................................................................................23
IJ
C. INSURANCE................................................................................................................................................24
1. Lessee's Required Insurance....................................................................................................................24
2 Certificates oflnsurance...........................................................................................................................26
3. County Insurance Obligations..................................................................................................................26
V. OPERATION AND MAINTENANCE OF PREMISES...............................................................................28
A. ADVERTISING COMPANY OBLIGATIONS.........................................................................................................28
B. COUNTY OBLIGATIONS..................................................................................................................................31
VI. ASSIGNMENT.................................................................................................................................................33
A. ASSIGNMENT PROHIBITED WITHOUT COUNTY CONSENT................................................................................33
B. ASSIGNMENT RELATING TO RENEWAL TERM.................................................................................................33
C. STANDARDS AND PROCEDURES TO OBTAIN COUNTY CONSENT.....................................................................34
VII. DEFAULT AND TERMINATION............................................................................................................36
A. DEFAULT....................................................................................................................................................36
1. Incidents of Default by Lessee..................................................................................................................36
2. Notice of Default......................................................................................................................................36
3. Lessee's Right to Cure..............................................................................................................................36
4. County's Right to Cure.............................................................................................................................37
5. County's Rights Upon an Uncured Default..............................................................................................37
6. Notices of Non-Compliance or Satisfactory Performance.............................................................36
7. Termination of Lessee's Possessory Rights...............................................................................................38
B. TERMINATION...........................................................................................................................................40
1. Termination of the Lease...............................................................................:..........................................40
VIII. GENERAL PROVISIONS.........................................................................................................................43
A. COORDINATION WITH OTHER AIRPORT USERS................................................................................................43
B. SURRENDER OF PREMISES/LESSEE'S PERSONAL PROPERTY...........................................................................43
C. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS...........................................................................43
D. LESSEE'S PERSONAL PROPERTY/TRADEMARKS..............................................................................................45
E, SUBSTITUTION OF PITKIN COUNTY AIRPORT FACILITIES ................................................................................45
F. DESTRUCTION OF BUILDINGS AND OTHER IMPROVEMENTS...........................................................................46
G. RIGHTS OF SEIZURE........................................................................................................................................47
H. RELATIONSHIP OF PARTIES.............................................................................................................................47
I. NON-LIABILITY OF COUNTY'S AGENTS AND EMPLOYEES...............................................................................47
J. NOTICES.........................................................................................................................................................47
K. REPRESENTATIONS OF LESSEE.......................................................................................................................47
L. ENTIRE AGREEMENT/MERGER.......................................................................................................................48
M. No ORAL MODIFICATIONS.............................................................................................................................48
N. No WAIVER...................................................................................................................................................48
O. NO PRESUMPTION AGAINST DRAFTING PARTY..............................................................................................48
P. ATTORNEY'S FEES..........................................................................................................................................48
Q. GOVERNING LAW/VENUE..............................................................................................................................48
R. BINDING EFFECT............................................................................................................................................49
S. CAPTIONS.......................................................................................................................................................49
T. DUPLICATE ORIGINALS; RECORDED SUMMARY.............................................................................................49
U. AUTHORITY OF LESSEE'S REPRESENTATIVE...................................................................................................49
(Effective 5/01/99)
ASPEN/PITKIN COUNTY AIRPORT
AIRPORT ADVERTISING
LEASE AND USE AGREEMENT
May 1, 1999 to April 30, 2004
between Transportation Media Inc.,a Division of Eller Media Company
and Pitkin County, Colorado
THIS LEASE AND USE AGREEMENT, made as of the date last below signed, is by
and between the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,
COLORADO, a Colorado home-rule County ("County" or "County"), as
County/Permittor, and Transportation Media, Inc., a Division of Eller Media Company
("Lessee"), a corporation, 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,
certain areas for use as public paid parking facilities, a commercial airline terminal and
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 operating airport advertising services
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:
I. PREMISES, TERM, USES, RESTRICTIONS
A. PREMISES:
1. Demise of Premises. In consideration of Lessee's payment of all rent
and other money due, and of Lessee's full and faithful performance of and
compliance with all other terms, conditions and covenants hereof, and
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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 air carrier terminal building areas and
improvements of the Airport, Pitkin County, Colorado identified as the
Airport Advertising Locations (hereinafter, the "Premises"), depicted on
Exhibit 'A" and described as follows:
2. Description of Premises. County grants to Lessee the right and
privilege to occupy and operate for the term and upon the covenants,
terms, and conditions set forth herein, the airport advertising locations
serving the commercial terminal at the Airport presently consisting of:
seventeen (17) single wall lighted dioramas,
six (6) double wall lighted dioramas,
two (2) spectacular wall lighted dioramas,
fifteen (15) pedestal showcases,
five (5) vertical showcases,
one (1) hotel/motel courtesy phone board, and
one (1) brochure rack area,
and serving any new commercial terminal to which scheduled airline
operations may be changed during the term of this Lease and Use
Agreement including, but not limited to, installation, maintenance and
operation of advertising displays (hereinafter the "Premises"). This
Agreement shall be deemed an exclusive right, subject to continuing
federal and state legislation, regulation, interpretation and case law
enabling the County to grant such rights.
3. Map of Premises. The Premises and each advertising display location
allowed with this Agreement is depicted on Exhibit "A" attached hereto
and incorporated by this reference. The County and Lessee acknowledge
that such Exhibit may not be to scale but accurately represents the
number, type, and location of advertising fixtures.
4. Restricted entry/occupancy. Any entry on, occupancy of or use of
Airport land areas, terminal building, or improvements by Lessee that is
not expressly demised and described by this Lease shall be and is hereby
prohibited, except by separate prior written permission from the County
and under such terms and conditions as the County, in its sole discretion,
may determine.
5. Additional Premises. If, during the term of this Agreement, additional
Premises are made available by 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.
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6. Acceptance of Premises. The Lessee agrees that the Premises either
has been occupied or inspected by Lessee at the beginning of this Lease
term and is accepted and initially will be occupied by Lessee on an "as is"
basis.
B. TERM.
The term of the occupancy and use of the Premises by Lessee shall be as
follows:
1. Initial Term. The Initial Term of this Lease shall be for five (5) years,
commencing at 12:01 a.m. MDT, May 1, 1999, and expiring at 12:00 p.m.
MDT, April 30, 2004, unless earlier terminated or renewed as provided
herein.
2. Renewal Term. County shall have the sole option of extending the
Lease and Use Agreement one (1) Renewal Term of five (5) years,
commencing May 1, 2004, and expiring April 30, 2009, under the following
conditions:
a) Notice to Lessee. County must give Notice of its intent to
exercise this option between January 1, 2004 and March 31, 2004.
b) Status of Lessee. Lessee shall, at the time of such Notice and
until the end of the Initial Term, not be subject to an uncured
default.
c) Terms and conditions. The terms and conditions of this
Renewal Term shall be those provided by this Lease, as amended,
or as otherwise amended by the mutual agreement of the parties.
3. 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.
4. 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 MAG for such period at a rate of 200% of the last
effective rate hereunder.
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C. USES
1. Use of Premises. Lessee's use of the Premises shall be subject to the
following:
2. Required Uses. Lessee shall occupy and use the Premises solely for
the purpose of installing, maintaining, and operating the Airport
advertising displays.
3. Exclusive Right to Airport Advertising Services. County acknowledges
that Lessee's proposal and agreement to operate the airport advertising
services is based on a representation that only one airport advertising
service was planned at the Commercial Airline Terminal for the term of
this Lease.
4. Prohibited Uses. Lessee shall not occupy, use, permit or suffer the
Premises or any part thereof to be occupied or used as follows:
a) For any use, activity, display or product not specifically
permitted herein; any such use shall be and is hereby prohibited,
except as by separate prior written permission from the County and
under such terms and conditions as the County, in its sole
discretion, may determine.
b) 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, or other lawful authority
whatsoever.
c) For any activity deemed by the County 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 Airline Terminal or the Airport.
d) For any auction, fire or bankruptcy sale, without County's
consent.
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D. REQUIREMENTS:
1. 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, and as it may be
renewed, to operate the Airport Advertising Services at times and in
a manner described in this Lease.
b) Overall Quality of Operations. Lessee shall operate the airport
advertising services in a manner, with a scope of service and
quality equal to or better than airport advertising services of similar
size and traffic volume at first-class U.S. destination resort airports.
2. Service. The airport advertising services shall be operated and
managed in an efficient, businesslike and courteous manner, with at least
the following elements:
a) Employees. Lessee shall provide adequately trained and
supervised personnel in sufficient numbers to provide advertising
services and information to potential customers. Lessee's
employees shall be safety-conscious, environmentally sensitive,
helpful and courteous at all times.
b) Supervision. Employees shall be adequately supervised, or
have access to operational policies and procedures, to respond to
customer complaints and Airport inquiries.
3. Trade Fixtures, Furnishing and Equipment. Lessee shall provide, at its
sole expense, all wall display units, floor display units, and the courtesy
telephone board necessary to operate airport advertising services.
4. Environmental Quality Improvement Plan (EQIP). The County's stated
goal is to plan for the reduction or elimination and continually reduce or
eliminate environmental 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 environmental issues. The County gives notice that
environmental compliance and sensitivity to environmental issues are and
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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 to be a
material breach.
Until the expiration or termination of this Lease, Lessee shall diligently
accomplish and/or comply with an Airport EQIP as follows:
a) Promptly after the execution of this Lease, Lessee agrees to
institute the following operational practices:
b) Chloroflourocarbons (CFCs). No products containing CFCs are
to be sold or used in operations or maintenance.
c) 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.
d) Energy conservation, Lessee shall take all reasonable steps to
reduce energy consumption on or concerning the Premises.
e) 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.
E. RESTRICTIONS
1. Restrictions on Lessee's Operations. Lessee, in the conduct of its
operations, shall be subject to the following restrictions:
a) 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.
b) 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.
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c) All 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.
d) 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 without the County's
consent, in its reasonable discretion.
2. Lessee shall be subject to any restrictions as outlined in Section V,
describing the operation of the Premises.
3. 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 Agreement and, in the
County's discretion, such non-compliance is deemed not to rise to the
level of an Incident of Default, 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.
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II. MINIMUM ANNUAL GUARANTEE OR PERCENTAGE OVERRIDE
AND ADDITIONAL RENT, PAYMENTS, SURETY, AND REPORTS AND
AUDITS
A. MINIMUM ANNUAL GUARANTEE AND PERCENTAGE OVERRIDE
1. Definition of Minimum Annual Guarantee and Percentage Override.
a) For the Initial Term (May 1, 1999 to April 30, 2004), Lessee
shall pay the greater of a Minimum Annual Guarantee (MAG) as
specified below per contract year (May 1 to April 30), or sixty (60)
percent of the Lessee's annual "Gross Revenues", all as defined
herein.
(1) Year 1 $225,000
(2) Year 2 $235,000
(3) Year 3 $250,000
(4) Year 4 $265,000
(5) Year 5 $280,000
b) For the Renewal Term (May 1, 2004 to April 30, 2009) of this
Agreement, Lessee shall pay the greater of a MAG as outlined
below per contract year, or sixty (60) percent of the Lessee's
annual "Gross Revenues" per contract year.
(1) Year 6 $290,000
(2) Year 7 $300,000
(3) Year 8 $310,000
(4) Year 9 $320,000
(5) Year 10 $330,000
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For purposes of this Agreement, a "contract year" for the Minimum Annual
Guarantee shall be May 1 through April 30 annually.
2. Calculation of monthly MAG and percentage override.
a) The Minimum Annual Guarantee (MAG) payments and
percentage override payments shall be calculated as follows: On
or before the 20th day of the second and each successive month of
the term of this Agreement and the first month after the expiration
or termination of this Agreement, the Lessee shall pay to the
County an amount which when added to any previous payments for
prior months of the current contract year shall be equal to the
greater of either one-twelfth (1/12th)of the current MAG times the
number of months elapsed in the then-current contract year, or
sixty percent (60%) of accumulative Gross Revenues through the
then-current contract year to the end of the preceding month. The
Lessee agrees it will, by the 20th day of each month with such
payment, submit a statement showing the Lessee's Gross
Revenue for the preceding month and accumulative Gross
Revenues through the then-current contract year to the end of the
preceding month. Said statement is to be in a form approved or
required by the Airport Manager and the County's Finance Director
and signed and certified to be complete and accurate by an
employee of the Company authorized to make such a certification.
b) Immediately upon Lessee's receipt of revenues from its
activities hereunder, such funds representing payments owed to
County hereunder shall be vested in and become the property of
the County, and Lessee shall hold and be responsible for said
funds as a Trustee 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) "Gross Receipts, Gross Revenues, Gross Sales" as used in this
Lease shall mean:
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All sums chargeable by Lessee, whether received or not, from the
sales of space in the airport advertising displays whether on a daily,
weekly, monthly or any other period of time basis, and
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 if for credit, regardless of whether the
Lessee ultimately collects the monies owed for said transaction
from the customer involved, and
minus the following deductions:
Federal, state or local sales taxes separately stated and collected
from customers;
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.
All revenues excluded under this paragraph shall be reported to the
County and subject to verification and audit as provided herein.
b) 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 in
response to some future change in circumstances. An Equitable
Adjustment may provide for a net increase or decrease in the MAG
and non-monetary obligations. An Equitable Adjustment shall be
the minimum adjustment that is commercially reasonable under the
circumstances.
(1) 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, 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, American Mediation
Association. The mediator shall establish the procedures for the
mediation (e.g. required submittals, deadlines, and manner of
presentations), but it shall end with a written report and
recommendation.
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The mediation shall be non-binding, but if either of the parties disagrees
with the report, it shall have the following remedies:
(a) If Lessee disagrees, it may either be bound by the mediation
decision or terminate the lease upon 120 days'notice.
If the County disagrees, it may either be bound by the mediation
decision or terminate the lease upon 90 days notice.
(2) The following situations will be eligible for an Equitable
Adjustment:
(a) If the airport runway is closed due to repair work.
(b) If the commercial air carrier terminal is closed due to acts
of casualty or if the commercial air carrier terminal is closed
due to repair work being conducted on the runway.
(c) For conditions outlined in Section III(D) and/or Section
III(I) and/or Section VIII(F).
(d) If all commercial air carrier service is suspended for any
reason, except for flight cancellations occurring in the normal
course of airline business, such as weather and/or mechanical
cancellations.
(3) The following situations will NOT be eligible for an Equitable
Adjustment:
(a) An increase or decrease in commercial air carrier
enplanements.
(b) If some commercial air carrier service is suspended for any
reason, but there is at least one commercial air carrier
providing service to the airport.
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B. ADDITIONAL RENT
Additional Rent. In addition to the MAG Lessee shall pay Additional Rent, as
and when applicable, as follows:
Advances, costs, fees and expenses incurred by County in connection
with or arising from a default by Lessee, as provided below.
Such rent, fees or charges established for occupancy and use of
additional Premises as provided herein.
Any other costs, fees or charges to be paid by Lessee to County
hereunder.
C. PAYMENTS
1. Payments. The payments of the monthly MAG or monthly percentage
override, and any Additional Rent 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 greater of the monthly MAG or monthly percentage override
will be paid in arrears on the 20th of each month for the previous
month. (For example, the monthly MAG or monthly percentage
override for the month of May is due June 20.)
c) If the 20th day of the month is a Saturday, Sunday or County
legal holiday, that payment shall be due on the next succeeding
business day.
d) All payments shall be made in the office of the Treasurer, 506
East Main Street, Suite 201, Aspen, Colorado, 81611 or at such
other place as the County may direct in writing.
e) All payments shall be considered delinquent if not received by
the last business day of the month due. If the last business 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 delinquent balance on the first day of every month so
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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.
If Lessee makes any payment to County 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 County
the amount of the payment (together with any 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, County shall not be required to accept any payments
from Lessee other than in cash or by certified cashier's check.
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D. SURETY
1. 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 including, without limitation, the payment of the MAG and
Additional Rent.
2. Types of Security. Lessee shall deliver a Letter of Credit or other
security in a form satisfactory to the Pitkin County Attorney's office, in the
amount of$50,000. This Letter of Credit or security shall be maintained in
effect throughout the term of this Agreement as surety for Lessee's full
and faithful compliance with its obligations.
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 it may, as
part of that Notice, require either the Letter of Credit or security 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 County's damages in case of default by Lessee.
County shall have the right to commingle any cash amounts received
hereunder with its other funds.
3. County Use of Required Security. If at any time during the Term, any
of the MAG or Additional Rent shall be overdue and unpaid, or any other
sum payable by Lessee to County shall be overdue and unpaid, then
County may, at its option, and upon Notice to Lessee, appropriate and
apply any portion of the Letter of Credit or security 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
County may, at its option and upon Notice to Lessee (and its surety, if
applicable), appropriate and apply the Letter of Credit or security, or as
much as may be necessary, to compensate County for advances,
expenses, loss or damage sustained or suffered by County due to such
breach on the part of Lessee.
Should the Letter of Credit or security or any portion thereof be
appropriated and applied by County 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
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of County, restore the Letter of Credit or security to the original sum
deposited or required.
4. County Return/Release of Required Security. No later than 60 days
after the expiration or termination of this Lease, County 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 release the surety; or if
Lessee has not complied with such obligations, provide written notice to
Lessee and/or its surety of County's claims against said amounts and
return/release the remainder.
E. REPORTS AND AUDITS
1. Lessee Reports. Lessee shall prepare (or have prepared) and deliver
to County complete and accurate reports as follows:
a) Monthly Reports. By the 20th of each month for the previous
month, Lessee shall provide the Director of Aviation with copies of
the below listed records. Said records shall be signed and certified
as complete and correct by an official of Lessee authorized to so
certify, and shall be in a form acceptable to the Airport, and such
acceptance shall not be reasonably withheld.
(1) List of the advertisers by name
(2) List of the amount paid by each advertiser
(3) Total of the revenue generated by airport advertising each month.
(4) List of any adjustments to revenues.
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b) Annual Reports. Within ninety (90) days after the end of each
Lease Year and upon request by the County, Lessee shall deliver
to County a written statement signed by a Colorado-licensed
certified public accountant or by some other person acceptable to
County 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 Override for the contract year is more
than the total actually paid by Lessee, Lessee shall pay the
balance due to the County 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 airport advertising services, to audit or review past
operations or to plan future operations, providing such reports
would be reasonably expected to be available.
d) Lessee Business Records. Lessee shall maintain full and
accurate books of account and records from which Gross Sales,
Gross Receipts and Gross Revenues, as defined herein, the
amount and nature of all business transacted on or though the
Premises and the amount of Percentage Override owed the County
can be determined and verified, according to standard and
generally-accepted accounting principles and practices and
auditing standards.
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.
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:
Complete, accurate and legible copies of all bank deposits,
sales tax reports, sales slips, credit card records, 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 compan(ies), if any, and all computer and/or
microfilm or microfiche reproductions of the above.
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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, Gross Receipts, and Gross Revenues.
Any other document or procedure which, in the reasonable
discretion of the County, is necessary or useful to determine
or verify Lessee's obligations. Such new documents or
procedures shall be used or instituted a reasonable time
after the County has sent written notice to Lessee.
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.
2. 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 May 1 of
each year of the Agreement and to conclude on April 30 of the
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.
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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 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 Gross Revenues, Gross
Sales and Gross Receipts 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 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 on such underpayment from the
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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) Expenses of audits. Generally, the County shall bear the
expense of annual, end-of-term or investigatory audits; however, if
the amount of underpayment disclosed by any audit exceeds
exactly two (2.0%) percent of the total Percentage Override or
Additional Rent 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 Twenty-five Hundred Dollars
($2,500.00).
f) An audit conducted 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.
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III. 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 to 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:
A. 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 any improvements 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.
B. 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.
C. 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.
D. 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 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, it becomes necessary to modify, relocate or remove
any improvements or other structures situated on the Premises, the Lessee
agrees to modify, relocate or remove any such improvements or structures as
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directed by County. If the improvements removed were lawful and permitted, the
County shall reimburse Lessee for the reasonable cost and expense thereof.
E. 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.
F. 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.
G. 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.
H. 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 Airline Terminal and public-access curbs, sidewalks and roadways
in favor of the public.
I. 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 and if Lessee shall be unable to conduct
reasonably normal seasonal business operations on the Premises by reason of
any such County activities, then the fees hereunder may be subject to Equitable
Adjustment during the period of such interruption.
J. 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 information to prospective lenders and in providing estoppel certificates
and similar documents, if so requested.
K. 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.
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L. 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 standards for the conduct of commercial activities related
hereto including, without limitation, minimum hours of operation if the County
determines that the needs of the traveling public are not being met.
M. County reserves the right to refer all development proposals hereunder
through the established County land-use application/review process, with costs
and fees thereof to be paid by the proposed developer.
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IV.RELEASE, INDEMNITY AND INSURANCE.
A. DEFINITIONS.
For purposes of this Section:
"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.
"County" shall mean: the County of Pitkin (a Colorado home-rule County), the
Aspen/Pitkin County Airport and the officials, employees, agents and
representatives thereof.
"Liability" shall mean: the legal obligation to pay compensation to an injured or
aggrieved party.
"Loss" shall 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.
"Casualty" shall mean: property damage caused by fire, water, snow, ice, wind,
collision, collapse or explosion.
"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.
"Personal Injury" shall mean: property damage, bodily injury or death.
B. RELEASEAND INDEMNITY
1. Lessee's Release and Indemnity of County. Lessee shall and hereby
does release, discharge, indemnify and hold harmless County 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 County.
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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
shall bear all other costs and expenses related thereto, even if the claim,
demand or lawsuit is groundless, false or fraudulent.
C. INSURANCE
1. 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
specified, 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. The following insurance coverage, at
or above the limits indicated and including such endorsements as are
indicated by an "K , are required:
Statutory Worker's Compensation: Colorado statutory minimums
Commercial General Liability
1) Policy Limits:
Bodily Injury/Property Damage Combined Single Limit
of$2,000,000;
2) Deductible:
No greater than 1 000.00;
3) Endorsements:
x Comprehensive Form (All risks)
x Premises/Operations
x Products/Completed Operations
x Broad Form Blanket Contractual (Hold Harmless
Coverage)
x Independent Contractors and Subcontractors
x Broad Form Property Damage
x Personal Injury, with Employment Exclusion Deleted
Comprehensive Motor Vehicle Liability Insurance
1) Policy Limits:
Bodily Injury/Property Damage Combined Single Limit
of$ 1,000,000;
2) Deductible:
no greater than 1 000.00;
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3) Endorsements:
x Any Auto
x All Owned Autos
x Hired Autos
_ Non-Owned Autos
Garage Keepers
Special Coverages:
_ Surety Bond
_ Fidelity Bonds
_ Building contents: to the full replacement value of
Lessee's equipment, trade fixtures and personal and
business property (may be waived by County upon
separate, express, written assumption of risk by Lessee)
Business interruption: the full value of Lessee'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 Lessee)
X Media Professional Liability 2 million
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2. Certificates of Insurance. To provide evidence of the required
insurance coverages, Certificates of Insurance in a form acceptable to the
County shall be filed with the County (through the Director of Aviation) no
later than ten (10) calendar days prior to commencement of operations
affecting the County.
Failure to file or maintain acceptable Certificates of Insurance with the
County is agreed to be a material breach of any contract and grounds for
termination. These Certificates of Insurance shall contain a provision that
coverage afforded under the policies will not be cancelled 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 or amounts 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.)
In addition, these Certificates of Insurance shall contain the following
clauses:
a) 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.
b) 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.
c) 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 Lessee.
d) Premises of operations shall be: "all operations and areas on
the Aspen/Pitkin County Airport conducted by or used and
occupied by Lessee."
3. County Insurance Obligations. County shall procure fire and extended
coverage insurance and boiler insurance covering the Airline Terminal for
the full replacement value. 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.
a) Lessee shall be required, at its sole cost and expense, to
comply with any and all requirements pertaining to the Property of
any insurance company necessary for the maintenance of
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reasonable fire, casualty and public liability insurance covering the
commercial airline terminal and the airport.
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V. OPERATION AND MAINTENANCE OF PREMISES.
A. Advertising Company Obligations
1. Lessee shall operate facilities in a first-class manner in the absence of
unusual, unforeseeable circumstances or circumstances beyond Lessee's
control. Lessee will keep all advertising displays neat and orderly at all
times during the term, including, but not limited to, daily inspections and
cleaning of such displays.
2. Lessee shall collect all advertising fees due and promptly pay all
license fees due to County.
3. Lessee shall, at its sole expense, hire, train, employ, staff, and
supervise an adequate number of employees to operate the airport
advertising services, and staff will perform their duties in an efficient,
helpful and courteous manner.
4. Lessee shall, at its own sole cost, design, plan, install and erect all
display facilities, and provide all equipment, materials and labor necessary
to complete its obligations.
5. Lessee shall be solely responsible for solicitation of purchasers of
advertising space at rates and upon such terms as established by Lessee.
6. Lessee shall be responsible to insure that all advertising materials and
displays shall be in good taste and to refuse any materials which through
its subject, content, or presentation is political, obscene or illegal. Lessee
acknowledges that all advertising materials and displays to be placed in
the Premises are subject to the approval of the Director of Aviation, or
his/her designee. The advertising of any tobacco product is specifically
prohibited.
7. Lessee shall be solely responsible for contracting with advertisers, for
preparation and placement of advertising materials, and for billings and
collection of revenues from advertisers.
8. Lessee shall be solely responsible for any telephone or modem line
charges and telephone or modem charges billed and collected from its
customers for telephone or modem services or line charges at any of the
airport advertising displays, including wall displays, floor displays and the
courtesy telephone board. Such utility charges shall not be included in
gross revenue.
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9. Lessee shall be solely responsible for the installation of new, energy-
efficient lighting and balasts used in all advertising displays, and as
approved by the Director of Aviation, or his/her designee, and according
to a time and replacement schedule as agreed upon by both parties.
10. Lessee fully understands and accepts that the number and location
of all advertising display spaces is limited to the current number of display
spaces and locations as described above and in Exhibit "A" for the term of
this Agreement. If, however, there is a change in size and/or internal
configuration of the terminal building, the County may, at its sole
discretion, permit a change in the number, types and/or locations of
advertising displays. The number, type and/or location of advertising
displays will not be relocated, changed, increased or decreased without
prior written consent of both parties.
11. Upon termination of this Agreement at the end of the initial term,
renewal term, or earlier as provided above, Lessee shall remove within
thirty (30) days all of its advertising materials and all of the display cases,
courtesy telephone board, and other equipment and materials affixed to
the commercial terminal without damage to said terminal, unless said
equipment, fixtures and materials are purchased by County pursuant
hereto.
County shall have an option, which must be exercised by written notice
served on or before the date of termination, to purchase all of Lessee's
fixtures and equipment at its then fair-market value. Upon receipt of
County's notice of exercise of its option, Lessee shall have ten (10) days
in which to respond in writing with its calculation of fair-market value.
Upon receipt of County's notice of exercise of its option, Lessee shall
have ten (10) days in which to respond with its calculation of fair-market
value. Should County object to this calculation and the parties be unable
to agree to fair-market value within thirty (30) days of termination, the
parties hereby agree that said matter shall be referred to binding
arbitration by a single arbitrator selected under the then-current rules of
the American Arbitration Association. Should County object to this
calculation and the parties be unable to agree to fair-market value within
thirty (30) days of termination, the parties hereby agree that said matter
shall be referred to binding arbitration by a single arbitrator selected under
the then-current rules of the American Arbitration Association.
12. Should County not exercise its option to purchase and should Lessee
fail to remove all of its fixtures and equipment from the commercial
terminal, any such property remaining in the commercial terminal for more
than thirty (30) days after termination shall conclusively be deemed
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abandoned by Lessee and shall automatically become the property of
County.
13. Lessee shall be responsible for any damages to the Airport and its
commercial terminal caused by Lessee, its officers, employees, agents,
contractors or subcontractors, ordinary wear and tear excepted.
14. Required Minimum Advertising Display Usage. Lessee agrees that
not more than five (5) percent of the advertising displays will be
unoccupied or empty of a paid advertising for longer than a two (2) week
period. In the event that there is an unoccupied or empty diorama or
showcase for more than two (2) weeks, the space will then be offered free
of charge to an airport-approved, local (Roaring Fork Valley), non-profit
organization until the space is sold. Any unused display spaces on the
courtesy telephone board will be filled with an appropriate blank or
welcome message.
15. Customer Complaint Resolution: Lessee shall institute a procedure
for the prompt resolution of customer complaints. In the event that
County receives any complaint arising from Lessee's operation, County
shall immediately transmit such complaint to the Lessee for resolution.
Within five (5) business days of the receipt of the complaint, Lessee shall
provide the Director of Aviation a written report of the complaint and its
resolution, or of Lessee's attempts at resolution. r
In addition, Lessee shall submit upon request of the County, a semi-
annual or annual report of all substantial complaints received by Lessee,
including those referred by County. Failure to resolve a great majority of
these complaints to the satisfaction of the Director of Aviation shall be
grounds for non-renewal of this Agreement.
At least once annually hereunder, Lessee shall be entitled, at its request,
to a written evaluation of its performance under this Agreement from the
Director of Aviation. This report shall contain appropriate specific areas in
which performance has been unsatisfactory and specific standards for
satisfactory performance.
16. Lessee agrees that the venue for disputes between Lessee and its
customers will be Pitkin County, Colorado.
17. Pay promptly all taxes, excises, license fees and permit fees of
whatever nature applicable to its operations, and to take out and keep
current all licenses, municipal, state or federal, required for the conduct of
its business or the operation or its equipment, and further agrees not to
permit any of said taxes, excises or license fees to become delinquent.
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18. Lessee shall observe and abide by all applicable airport regulations,
including:
a) Title IV, Pitkin County Code
b) Airport Emergency Plan
c) Airport Security Plan
d) Ground Transportation Rules and Regulations
and the same as amended from time to time.
19. Conduct its commercial activities in such a way as not to
unreasonably interfere with other permitted users of the Airport in non-
exclusive areas.
B. County Obligations
1. County shall continue to utilize the air carrier terminal as the sole
location for the staging, ticketing and baggage handling facility for
regularly scheduled commercial air carrier operations throughout the term
of this Agreement.
2. 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 walls 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
County obligations, Lessee shall give immediate written notice to County
and County 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. County's obligation is limited to repairs specified in
this Section only, and County shall have no liability for any consequential
damage or injury arising out of any condition or occurrence causing a
need for such repairs. County shall have access to the Premises as
necessary or convenient to make repairs required by this Section.
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3. County will be responsible for providing a standard electrical current to
each approved advertising display area at the County's cost. County shall
be responsible for payment of charges for electric current used in the
displays.
4. County shall keep the terminal premises heated and illuminated at the
County's sole cost.
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VI. ASSIGNMENT.
A. Assignment Prohibited without County Consent. An assignment by Lessee of
this Lease or any right or obligation of Lessee, or of any substantial interest in
the ownership, management or financing of Lessee's business entity, is
expressly prohibited, except with the prior, express, written consent of County,
which consent shall not be unreasonably withheld.
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 County before that date), however styled, including, as examples and without
limitation, a sublease, license, sale, grant, conveyance, transfer, encumbrance,
mortgage or pledge.
A "substantial" interest hereunder shall include, as examples and without
limitation, the following:
1. 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;
2. Merger, consolidation, reorganization, transfer or other change of
Lessee's corporate or proprietary structure;
3. An assignment to or by a receiver or trustee in any Federal or State
bankruptcy, insolvency or other proceedings;
4. The sale or transfer of all or substantially all of the assets of Lessee,
with or without specific assignment of this Lease;
5. The creation of any interest or encumbrance for security purposes,
except a purchase-money security interest in inventory.
B. Assignment relating to Renewal Term. Notwithstanding any other
provision of this Agreement, Lessee's right to assign this Lease, as defined
below, shall be further restricted in three ways relating to a Renewal Term.
1. If the Lease is assigned during the Initial Term, the County reserves
the right to extinguish this Renewal Term; and
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2. County shall have no obligation to accept or approve an assignment or
sublease, as defined herein, within the last year of the Initial Term or
during the Renewal Term; and,
3. This Lease may not be assigned without prior approval by the County
during the Renewal Term.
C. Standards and Procedures to Obtain County Consent.
The determination by County of whether a proposed assignment is reasonable
under this Section may include consideration of factors including, without
limitation:
1. Whether Lessee is or has been in default under any of the terms or
provisions of the Lease.
2. Whether the proposed assignee can demonstrate acceptable levels of
relevant, successful business and financial qualifications and experience.
3. 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.
4. Whether any new business use for the Premises is being proposed
and, if so, what impacts the new use may have on the Airline Terminal
and the Airport.
5. 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
and the sublessee both continue to be bound by the terms of the Lease.
6. 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 personally and unconditionally guarantee, in a form satisfactory
to County, the performance of all Sublease obligations.
7. As part of a proposed assignment transaction, County 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:
a) 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
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accountants that establish, to County's reasonable satisfaction,
financial ability to perform Lessee's obligations and otherwise to
succeed in the proposed business.
b) Proof of successful, relevant business experience.
c) Proof of business, financial and credit reputation of ownership
and management principals.
d) Reimbursement by Lessee to County of all costs and expenses
(including reasonable attorney's fees) incurred by County in
considering and approving Lessee's request.
e) An audit of and full payment of all MAG, Percentage Override,
and Additional Rent to the effective date of the proposed
transaction.
8. Effect of Previous Assignments. Consent by County to one or more
previous assignments shall not operate as a waiver or restriction of
County's rights as to any subsequent assignments.
9. 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.
10. Lessee Acknowledgement. Lessee acknowledges that this Section
VI. C. was freely negotiated and is reasonable in all of the circumstances
of this Lease.
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VII. DEFAULT AND TERMINATION
A. DEFAULT
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 MAG, Percentage
Override fees, Additional Rent, or other fees or charges due and
payable hereunder; or
b) The creation, maintenance, failure to correct or sufferance of a
dangerous or hazardous condition on or emanating from 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, County 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) acceptable to County.
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
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precedent to this right to cure, Lessee must provide Notice, promptly after
the effective date of the Notice of Default, to County 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; 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.
d) If, in the discretion of County, a cure acceptable to County is
promptly undertaken and diligently prosecuted by Lessee and the
cure required cannot reasonably be completed within the foregoing
time periods, County 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.
4. County's Right to Cure. If Lessee should fail to cure any default
hereunder within the time permitted, or if a dangerous or emergency
situation exists at any time, County, without being under any obligation to
do so and without 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 Lessee shall be obligated, and hereby
agrees, to pay as Additional Rent, all reasonable costs, expenses and
disbursements (including reasonable attorneys' fees) incurred by County
in taking such remedial action. Such action taken by County 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. County's Rights 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,
County, at its option and in its sole discretion, then may either terminate
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Lessee's possessory rights under this Lease or terminate the Lease itself
and all of Lessee's rights or both in sequence, by Notice to the Lessee.
6. 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 Agreement and, in the
County's discretion, such non-compliance is deemed not to rise to the
level of an Incident of Default, 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.
7. Termination of Lessee's Possessory Rights. If County gives Notice of
Termination of Lessee's Possessory Rights, the following substantive and
procedural elements shall apply:
a) County shall re-take possession. Lessee shall immediately and
peacefully surrender the Premises to the County and, if Lessee
fails to do so, County, without prejudice to any other remedy which
County 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, without use of legal process. Thereafter County may
possess, hold and use the Premises and may alter all locks and
other security devices thereon.
b) Unless County 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.
c) In the event of any such termination of Lessee's possessory
rights, Lessee shall continue to pay to the County all monthly
payments of all MAG and any Additional Rent required to be paid
by Lessee to County during the remainder of the Term until the
date of expiration of the Term, adjusted as follows:
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(1) Plus all such amounts accrued prior to repossession;
(2) Plus expenses of County arising from repossession;
(3) Minus amounts received by County through re-letting.
(4) 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 County as provided in this Section
may be brought from time to time, on one or more occasions, without the
necessity of County's waiting until the expiration of the Term.
d) County may sub-let or re-let. At any time after such re-taking of
possession by County, County may sublet or relet the Premises or'
any part, 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 County, in County's absolute
discretion, may determine, and may collect and receive the rents
therefor.
In the event that County shall have taken possession of the
Premises pursuant to the authority herein granted, then County
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 by County or repossession by
County or third party having a lien thereon.
County 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 fifty (50)
driving miles of Pitkin County, and in such event, Lessee shall be
liable to County for reasonable costs incurred by County in
connection with such removal and storage and shall indemnify and
hold County harmless from all loss, damage, cost, expense an
liability in connection with such removal and storage.
County 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 who present to County a copy of any
instruments represented to County 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 County to
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inquire into the authenticity of said instrument's copy of Lessee's or
Lessee's predecessor's signature thereon and without the
necessity of County'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 County from any
liability and to indemnify and hold County 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.
The rights of County shall be in addition to any and all other rights
which are created elsewhere in this Lease or which County has or
may hereafter have at law or in equity; and Lessee stipulates and
agrees that the rights herein granted County are commercially
reasonable.
B. TERMINATION
1. Termination of the Lease. If County gives Notice of Termination of the
Lease, the following substantive and procedural elements shall apply:
a) County 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), County shall have and
exercise all rights of ownership of the Premises, and Lessee shall-
pay to the County in one payment of the sum of all MAG and
Additional Rental and other indebtedness to County accrued to
date of such termination, plus, for liquidated damages for Lessee's
default, computed at an amount equal to the present value of the
total MAG 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 County 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 County. If such sum is not paid to County 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
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rate then in effect at any commercial bank then with an office in
Pitkin County.
c) Not a Surrender. Exercise by County of any one or more
remedies herein granted or otherwise available shall not be
deemed to be an acceptance of surrender of the Premises by
County, 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 County. No alteration of locks or other
security devices and no removal or other exercise of dominion by
County 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.
d) Property Left on Property. Any property of Lessee, or of
anyone claiming under, by, or through Lessee, which is left on the
Property more than fifteen days after expiration of the Term or
termination of possessory rights shall be conclusively deemed r
abandoned, and County may keep, use, remove, store, sell,
destroy, discard, or otherwise deal with it in County's absolute
discretion without liability of any sort to Lessee or anyone claiming
under, by, or through Lessee.
e) Costs of Default. In case of any Event of Default, Lessee shall
also be liable for and shall pay to County, in addition to any sum
provided to be paid above, all costs, expenses and fees associated
with providing Notice of the Default and enforcing County's rights
including, without limitation, the following: the reasonable costs or
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 County in enforcing or
defending County's rights and/or remedies, including reasonable
attorneys' fees; and a sum equal to $75 for each hour that any
employee or agent of County, spends in connection with obtaining
the right to relet, rendering suitable for reletting, and attempting to
relet the Premises or any part thereof.
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f) County's Duty to Relet. In the event of termination of
possessory rights or repossession of the Premises for an Event of
Default, County 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, County may relet the whole or any portion of the Premises
for any period, to any Lessee, and for any use and purpose.
g) Default by County; Lessee's Remedies. In the event of any
default by County, Lessee's exclusive remedy shall be an action for
damages, but prior to any such action Lessee will give County
written notice specifying such default with particularity, and County
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 County fails so to cure any default under such
notice, County shall not have any remedy or cause of action by
reason thereof. All obligations of County hereunder will be
construed as covenants, not conditions.
h) Remedies Not Exclusive. The aggrieved party shall have such
other and further legal and equitable rights and remedies as may
be provided by law, including damages.
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VIII. GENERAL PROVISIONS
A. 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.
B. Surrender of Premises/Lessee's Personal Property. On or before the date
and time of the expiration or termination of the Initial or Renewal Term of this
Lease, Lessee shall: surrender the Property 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 Property; and repair any damage to the
Property caused by such removal. Any property of Lessee, or of anyone claiming
under, by, or through Lessee, which is left on the Property more than thirty (30)
days after expiration of the Term shall be conclusively deemed abandoned, and
County may keep, use, remove, store, sell, destroy, discard, or otherwise deal
with it in County's absolute discretion without liability of any sort to Lessee or r
anyone claiming under, by, or through Lessee.
C. Compliance with Applicable Laws and Regulations. In connection with its
occupancy and use of the Premises and in the conduct of its operation, the
Lessee shall:
1. 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, especially, the Airport, the
Sheriffs 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.
2. Although Lessee is not an aeronautical operator and, as such, is not
directly regulated by the FAA, Lessee acknowledges that the Airport is
heavily regulated by the FAA with respect to operation, financing and
development of the Airline Terminal.
3. Lessee acknowledges that Pitkin County has the continuing authority
to enact general legislation pursuant to its power to protect the health,
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welfare and safety of its citizens, as well as the continuing authority to
enact Airport regulations.
4. Lessee will 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 Property, or in the event of
any planned modification or alteration of any present or future structure or
building situated on the Property.
5. Lessee will 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.
6. Lessee will comply with the requirements for commercial tenants of the
Americans with Disabilities Act (ADA).
7. Lessee will comply with the requirements for Airport tenants of the
Airport's program and goals to increase opportunity for Disadvantaged
Business Enterprises (DBE).
8. Lessee shall pay all business/personal property taxes assessed
against Lessee's personal property situated upon the Property and all
other taxes lawfully assessed against Lessee by reason of Lessee's use
and occupancy of the Property in the conduct of Lessee's business.
9. Compliance with FAA Regulations: In compliance with FAA
regulations, this Agreement is subject to the requirements of the U.S.
Department of Transportation's regulations, 49 CFR Part 26, subpart G.
The Lessee 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 agreement, management, contract,
or subcontract, purchase or lease agreement, or other agreement covered
by 49 CFR Part 26, subpart G.
10. Also in compliance with FAA regulations, the Lessee agrees to
include the above statement 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.
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D. Lessee's Personal Property/Trademarks. All personal property,
equipment, furnishings, decorations and trade fixtures placed upon the Property
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.
E. 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:
1. County agrees to set aside space for airport advertising facilities for .
use of Lessee.
2. Lessee agrees to relocate operations from the Premises to the new or
substituted facilities at its own expense and to thereafter conduct its
operations therefrom. The new or substituted facilities shall be
comparable to the previous facilities or better in terms of size, Property
and finish, all in the reasonable discretion of the County.
3. Upon such relocations, County shall have the right to demolish or use
the existing commercial airline terminal building or other buildings or
facilities located on the Property as it sees fit.
4. 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 determined 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.
5. Except as modified by the substitution of facilities and the fee
adjustment as provided for this Lease shall continue in full force and effect
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without change or modification until the expiration or termination of the
Lease term.
6. 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 shall apply:
a) 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.
b) 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.
c) 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.
F. Destruction of Buildings and Other Improvements. If the buildings and
other improvements upon the Property 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 below), restore and repair the same to tenantable
condition as speedily as possible and the fees and charges for the 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. 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
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restoration and repair unless Lessee shall agree to contribute to the costs of
such restoration and repair in an amount equal to such deficiency.
G. 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
Property.
H. Relationship of Parties. It is the intent and agreement of the County and
the Company that they shall have the relationship respectively of Lessor/Lessee
and Perm itto r/Pe rm ittee 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.
L 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.
J. Notices. All notices required or authorized to be given hereunder shall be in
writing and shall be served upon the entitled party 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 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 entitled party or three (3) business days after the same has
been properly deposited in the United States mail, with postage fully prepaid.
K. Representations of Lessee. Lessee represents and warrants to County as
follows:
1. 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 Colorado Revised Statutes (Bribery and Corrupt
Influences) and Section 18-8-401, et seq. of the Colorado Revised
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Statutes (Abuse of Public Office) and that no violations of the provisions
are present.
2. 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 Property by the
Lessee.
L. 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.
M. 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 the designee specified in writing; provided, however, that
all matters affecting material terms of this Agreement, including term, fees and
charges and use of Property by Lessee, shall only be modified or amended by a
writing approved by a Resolution of the Board of County Commissioners at a
duly-noticed public meeting.
N. No Waiver. The failure of either party hereto to exercise any right or remedy
hereunder shall not be deemed a waiver 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 shall be effective unless in
writing signed by the party.
O. No Presumption Against Drafting Party. The parties agree that this
Agreement was negotiated by the parties 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.
P. Attorney's Fees. If either party to this Agreement incurs attorney's fees
and/or costs in connection with the declaration of a Default 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.
Q. Governing LawNenue. 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.
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R. 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.
S. 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.
T. 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.
U. 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.
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APPROVED BY BOCC
ON� - f�
COUNTY: LICENSEE:
The Board of County Transportation Media, Inc.
Commissioners of a Division of Eller Media
Pitkin County, CO
By:
Leslie Lamont hairperson /
Date: Date:
ATT T: ATTEST:
Pity n erk C rpo to Secretary
S � a
wed 4
7 r'Mi9
County's Addresses: Licensee's Address:
c/o County Manager For receipt of mailed notices
506 E. Main Street hereunder:
Aspen, CO 81611
cc: Director of Aviation rn.c
0233 E. Airport Rd., Suite A a DD s;o� o-f ocoe'-
Aspen, CO 81611 311 X. Waa.kar. s'w.% J"e 65401D
C�lCcst.we, .IL. 6G6D(,
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RECOMMENDED FOR APPROVAL:
tiL G Date:
Su nne Koncf an, County Manager
+, 1 zi Date: sjidq�7
Scott Smith, J.A.E. Director of Aviation
APPROVED AS TO FORM:
- ;--- Date: 3�/P
John Ely, Coun AtYJ'
APPROVED AS TO BUDGET:
G� Date: 3 '� ' 1
Thomas Oken, Administrative Service Director
APPROVED BY RISK:
Date: - 1
Hilary SotRisk Manager
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