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HomeMy WebLinkAboutbocc.con.197.2006 CHECK LIST FOR CONTRACTS SUBMITTED TO CLERK AND RECORDER FOR SCANNINGIARCHIVING Originating DepartmentfDivision: A-r t<.POI2.- ~ Contact Person: T::>1'N \ \J Ul--~ Phone #: Project Name ST. e ~ I .s Contract #: B>otJ) /-\ (2&;i'fo...) TA--L BOCC AGENDA ITEM STAFF AUTHORlZED SIGNATURE (BOCC signature required) (per Revised Procurement Code7/2005) /3q:; . -:rfp. Dollar Amount: $ '-IOU? ~S-'-~ /17-P(>;J~ ~o~. (,'1-.~. ~5~H/6' Check Contract Tvne: Services Maintenance LicenselUse XLease Construction _Grant Agreements (Requires BOCC Action) _ Change Order/Contract Amendment Other Budget Line Item _Purchase _Employment _Intergovernmental Agreement (Requires BOCC Action) _Non Profit _Quasi-Public Signatures Required: Under 25K - Department Head 25-50K - Department Head (if appropriate), Section Leader Over 50 K - Department Head (if appropriate), Section Leader, County Manager All Contracts should be proofed for the following: . No Pages Missing . If a Page is Left Intentionally Blank - Note on Page . Page numbered consecutively . All Signatures Affixed . All Dates Filled In . All Other Blanks Filled In . All Exhibits Attached . All Legal Descriptions Attached (if appropriate) . Notice of Award/Proceed Attached (if appropriate) Contractor/Business (Complete Name): ST. Rr~ I s.. R.~(Z...-""-- ~<?~ Contract Execution Date: I:J./ff /0(,:> Contract End Date: q I 0 Automatic Renewal (YIN): Term year(s) D;Z. /CjrJ.-::f-V:; (JA-N jJ 3U'1. r/915 /J ~ (P'{ . rn I't?ZCfi oS u'l . ~(2.u..' Cj s. ~ ;SC);;J..~ Sent to Clerk and Recorder for Scanning! Archiving \.:!-~ Date: /~/3o~ Authorized Staff Person Signature of authorized staff person indicates that document has been proofed and ready for scanning. Note: Clerk's Office will keep original documents in compliance with Colorado State Archives retainage schedule. Nevised h)' Jodi 6/12''05 I pcjmj\wwlglscannninglcounty contractslnarrative \checklistsheet USE AND LICENSE AGREEMENT AIRPORT TERMINAL COUNTER SPACE THIS AGREEMENT, made and entered into as of the date last below signed by and between THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a Colorado home rule county (hereinafter the "County"), and the St. Regis Resort Aspen (hereinafter "the Company"). WIT N E SSE T H: WHEREAS, the County owns and operates the Aspen/Pitkin County Airport, (hereinafter the "Airport") and the terminal building complex (hereinafter the "Terminal" or the "Air-Carrier Terminal") and does maintain various spaces for the use of the public and from time to time does and shall license or permit the use of parts of these areas to various individuals, firms or corporations to serve the users of the Airport; and WHEREAS, the County has authority to regulate commercial activities on Airport property and to enforce these regulations, pursuant to, inter alia, C.R.S. 41-4-101, et sea., the Pitkin County Airport Regulations (Title 10, Pitkin County Code); and WHEREAS, the Company is regularly in the business of providing lodging accommodations to area visitors, many of whom arrive in the area through the Airport; and WHEREAS, the County is willing to permit the Company to occupy and maintain terminal counter space for the operation and coordination of a satellite guest check-in booth at the Aspen/Pitkin County Airport, all as more specifically hereinafter provided, as well as allow the Company access to certain portions of the Aspen/Pitkin County Airport in furtherance of its business activities there; and J- -1- WHEREAS, the Company is ready, willing and able to occupy and maintain such counter space and perform its business functions there at in accordance with the terms, standards and conditions hereinafter set out: NOW, THEREFORE, for and in consideration of the terms, conditions and mutual covenants hereinafter contained and other valuable consideration, the parties hereto agree as follows: 1. LICENSE AND USE PERMITTED. A. The County grants and permits unto the Company for the term hereof the right to occupy and use a portion of the arrivals/baggage claim area at the Terminal Building at the Airport consisting of an area containing a total of approximately eighty eight (88) square feet, depicted on the attached Exhibit "A" (the "Premises"). 2. TERM OF AGREEMENT. The term of this Agreement shall commence as of 5:00AM MST, on the 15th day of December 2006, and shall expire at 10:00PM MST/MDST on the 9th day of April, 2007. 3. FEES. The Company agrees to pay to the County for the right to occupy the described Terminal areas and facilities for the term of this Agreement, the following amounts: A. $50.40 per square foot per year, or three hundred sixty nine dollars and sixty cents ($369.60) per month, paid in advance on the first day of each month and each succeeding month for the license term. Partial months shall be prorated. Payments shall be due as provided in Section 8 in advance by the first of each month. :3 -2- 4. USE OF PREMISES. A. The County hereby grants to the Company the right and privilege to occupy the Terminal area described above at all times when the Air-Carrier Terminal shall be regularly open for business, together with the necessary right of public-access ingress thereto and egress therefrom, for the sole purpose of operating a non-exclusive counter to provide for the remote satellite check-in for guests of the Company's properties. The Company shall provide all personnel, supervision, equipment and supplies necessary to operate its business. The booth, shall be open for business, staffed and supervised to coincide with the current arriving air carrier flight schedule(s) that are in effect during the term of this Agreement. The booth shall be kept and maintained, whether staffed or unstaffed, in a clean, orderly and business-like condition. The Company further agrees to use the area hereinabove described for the said purposes stated only, unless otherwise specifically authorized in advance in writing by the Director of Aviation, or his/her designee. No display or device shall be installed upon the Terminal space which in any way obstructs the public view of or access to another licensed space, and all displays shall be in compliance with the further provisions of this Agreement. Further, the Company shall not commit or permit any nuisance to arise from or related to its rights granted herein, or its occupancy of the Air-Carrier Terminal or the Airport. The Company may, in the discretion of the Director of Aviation, be permitted to utilize the premises before and after the hours which it normally operates; PROVIDED, that any expense to the County arising from said use, including supervision of the security premises, shall be paid by the Company (or prorated equitably among all users if more Companies than the Company shall use the terminal during hours when it is normally closed). ~- ~ B. There is further granted to the Company the right for itself, its employees, agents and invitees, to utilize the public facilities with the non-exclusive waiting and concession areas of the Air-Carrier Terminal such as rest rooms, restaurant, vending machines, drinking fountains and the like for the public purposes intended; PROVIDED, however, there shall be no waiting, lounging, loitering, gathering in groups, or solicitation, advertisement or conduct of business by the Company's employees in such areas. C. Said area provided for in paragraph 1.A., above, shall be subject to the following: 1. The County shall provide, at no cost to the Company, the unfinished shell booth area. 2. Finishing of the interior of the shell booth and appropriate signage shall be performed by the Company also at its expense and the design thereof and graphics placed thereon shall have the prior written approval of the Director of Aviation. All work done by the Company shall be completed promptly, in a workmanlike manner, and in compliance with the first-class design and finish standards of the Airport. 3. The Company, subject to the further provisions herein, shall be entitled to remove all items incorporated in the interior finishing and signage of the shell booth so long as the removal is completed without damage to the booth structure or any such damage is properly and promptly repaired. D. The licensed space may be used by the Company for purposes of disseminating information to the public and the operation and coordination of business, -4- <j all in a first-class businesslike manner, and for use as office space, limited to the conduct of its business to and from the Airport. E. The Company shall not interfere with (or permit interference by its agents) the business or operations of any other lessee, Company, or permittee in the Terminal or on the Airport. Further, the Company shall not interfere with the County's contractual or operational relationship to other lessees, Companies or permittees in the Terminal or on the Airport. 6. QUALITY OF SERVICE/COMPLAINT RESOLUTIONIPERFORMANCE REVIEW BY COUNTY. A. The Company shall conduct its commercial operations hereunder in a manner consistent with the standards of first-class commercial operators in first-class resort communities throughout the United States. B. Company acknowledges that the County has an interest in resolving any complaints arising from the Company's operations, both as ownerfoperator of the Airport and as holder of police power within the County. Based on the foregoing, in the event that County shall receive any complaint arising from Company's operations, County shall immediately transmit such complaint to Company for resolution. Within five (5) business days of the receipt of the complaint, Company shall provide to the Director of Aviation, or his/her designee, a written report of the complaint and its resolution or of Company's attempts at resolution. Failure by Company to resolve a great majority of these complaints and/or to correct the underlying cause of these complaints to the satisfaction of the Director of Aviation shall be grounds for non- renewal of this Agreement. -5- & C. At least once annually hereunder, Company shall be entitled, at its request, to a written evaluation of its performance under this Agreement from the Director of Aviation. This report shall contain specific areas in which performance has been unsatisfactory or satisfactory and specific standards for satisfactory performance. 7. AIRPORT REGULATIONS ENFORCEMENT AND TRAFFIC CONTROL. The County shall provide ground transportation supervision to all vehicular traffic and pedestrians at the Airport during periods which it determines to be the peak airport operational hours during the normal Pitkin County tourist seasons. Such officers shall be the employees of the County and have the right to direct the officers, agents, drivers, ownerf operators and employees of the Company. The purpose of such officers shall be to direct the expeditious and efficient loading and unloading of passengers and baggage utilizing the Airport, to control vehicles, pedestrians and parking within the designated areas of the Airport and to assure compliance with the operational requirements and Rules and Regulations relating thereto. 8. PAYMENTS. All fee payments hereunder shall be made without demand at the Pitkin County Treasurer's Office, Pitkin County Courthouse, 506 East Main Street, Suite 201, Aspen, Colorado, 81611 and shall be made in legal tender of the United States. Any checks given to the County shall be made payable to "Pitkin County" and shall be received by it subject to collection. Sums which remain unpaid to the County more than ten (10) days after the same shall become due shall bear interest at the rate of two (2%) percent per month from and after the due date thereof until paid in full. 9. UTILITIES. The County, at its expense and in its reasonable discretion, will furnish normal illumination, standard grounded electrical outlets, and heat for the -6- 7 premises of the Company in the said Air Terminal, subject to the provisions of paragraph 4.C. 10. CARE OF AREA. A. The Company agrees to keep and maintain all areas occupied or used by it in the Air-Carrier Terminal or on the Airport in a neat, clean, safe, sanitary and orderly condition at all times, and keep such areas free at all times of all paper, rubbish and debris; and will use the premises as to not injure them, except for ordinary wear and tear resulting from lawful use in accordance with the terms of this Agreement. S. The County shall remove snow from and provide general maintenance for the taxi, limousine and bus ready areas and baggage handling areas, as well as all public-access roads within the Airport. The Company shall be responsible jointly with other users thereof for policing and cleanup of the taxi, limousine and bus ready areas and shall cooperate with the County in order to accommodate the efficient removal of snow therefrom and the performance of general maintenance thereon. 11. SIGNS. The Company agrees that no signs or advertising materials shall be painted on, erected, placed or displayed in any manner upon the licensed area or any other portions of the Airport which is not in compliance with the Aspen/Pitkin County Airport Graphic Standards, and without the prior specific written approval of the Director of Aviation or hislher authorized representative. 12. REMOVAL OF EQUIPMENT. All equipment and property placed by the Company at its expense in, on or about the licensed area, including all trade fixtures temporarily affixed to the realty but which may be removed without damage thereto, shall remain the property of the Company, and the Company shall have the right at any time during the term hereof, when not in default hereunder, to remove all such -7- go equipment, property and trade fixtures; provided, however, that such removal shall be accomplished without damage to the Terminal or upon prompt repair of such damage by the Company. All property placed by the Company at its expense in, on or about the premises and affixed to the realty so that same cannot be removed without damage, shall become the property of the County and shall not be removed by the Company at any time, except that the County reserves the right to require the Company to remove the same and restore the premises to the same condition as existed at the commencement of the term hereof, ordinary wear and tear, fire and other casualty excepted. 13. RIGHT OF INSPECTION. It is mutually agreed that the County's duly authorized representative(s) shall have at any and all times the full and unrestricted right to enter the licensed and used areas for the purpose of inspecting or protecting such premises and of doing any and all things with reference thereto which the County is obligated to do as set forth herein or which may be deemed necessary for the proper general conduct and operation of the Airport or in the County's police power. 14. DAMAGE TO OR DESTRUCTION OF PREMISES. In the event the areas covered hereunder or any portion thereof shall be destroyed or damaged by fire or otherwise, to any extent which renders them unusable, the County may rebuild or repair such destroyed or damaged portions and the obligation of the Company to pay the booth fees hereunder shall abate as to such damaged or destroyed portions during the time they shall be unusable if no substitute temporary facilities are provided during such repair and rebuilding. In the event the County shall elect not to proceed with the rebuilding or repair of the major portion of the premises (if so destroyed or damaged), -8- 1 within a period of ninety (90) days after the destruction or damage, the Company, may, at its option, cancel and terminate this Agreement. 15. INDEMNITY AND INSURANCE. A. As further consideration hereunder, the Company and its officers, employees, agents, representatives and subcontractors shall release, discharge, indemnify and hold harmless the County of Pitkin (including Aspen/Pitkin County Airport) and its officials, employees, agents and representatives from and against liability for any claim, demand, loss, damages, penalty, judgment, expenses, costs (including costs of investigation and defense), fees (including reasonable attorney and expert witness fees) or compensation in any form or kind whatsoever for any bodily injury, death, personal injury or property damage caused by, arising out of or in connection with any negligent act, intentional act, error or omission by the Company (as defined above) or for any resulting liability alleged to accrue against the County on account of the Company's acts, errors or omissions; provided, however, that such indemnity shall not be construed as an indemnity for bodily injury or property damage arising from the sole negligence or intentional acts of the County or its employees. B. The Company further shall investigate, process, respond to, adjust, provide defense for and defend, payor settle all claims, demands, or lawsuits related hereto at its sole expense and shall bear all other costs and expenses related thereto, even if the claim, demand or lawsuit is groundless, false or fraudulent. C. To fund this indemnity, in whole or in part, the Company shall secure and maintain for the term of its contractual relationship with the County such insurance policies, from companies licensed in the State of Colorado, as will protect itself, the County (with the County as named additionally insured), and others as specified, from claims for bodily injuries, death, personal injury or property damage, which may be -9- )0 caused, arise out of or result from the acts, errors or omissions of the Company and its officers, employees, agents, representatives and subcontractors. The minimum insurance requirement prescribed herein shall not be deemed to in any way limit the obligations of the Company hereunder. The following insurance coverage, at or above the limits indicated and including such endorsements as are indicated by an "X", are required: (1) Statutory Workers' Compensation: Colorado statutorv minimums (2) Commercial General Liability - ISO 1996 Form or equivalent Each Occurrence Limit $1.000.000 General Aggregate Limit $2.000.000 Products/Completed Operations Aggregate Limit $2.000,000 Comprehensive Form (All risks) to include: -LPremises/Operations _Underground, Explosion & Collapse Hazard ....1L..Products/Completed Operations -L Contractual Liability -Llndependent Contractors and Subcontractors -LBroad Form Property Damage -LPersonallnjury (3) Business Auto Coverage: Combined Single Limit Liability (each accident) $1.000.000 Bodily Injury (per person per accident) Property Damage (per accident) Coverage to include: ...:L.Any auto _All Owned Autos _Hired Autos Non-Owned Autos _ Garage Liability D. To provide evidence of the required insurance coverage, copies of Certificates of Insurance in a form acceptable to the County shall be filed with the County (through the Director of Aviation) no later than ten (10) calendar days prior to -10- II commencement of operations affecting the County. Failure to file or maintain accept- able Certificates of Insurance with the County is agreed to be a material breach of this Agreement and grounds for rescission or termination. These Certificates of Insurance shall contain a provision that coverage afforded under the policies will not be canceled or materially altered unless at least thirty (30) calendar days prior written notice by certified mail, return receipt requested (effective upon proper mailing), has been sent to the County (through the Director of Aviation). (For purposes of this provision, "materially altered" shall mean a change affecting the coverage required herein, including a change to policy limits as set out in the then-current policy declarations page.) Simultaneously with the Certificates, Companv shall file and update as necessary a certified statement as to claims pending against required coverage, reserves established on account of such claims, defense costs expended and amounts remaining in policy limits. E. In addition, these Certificates of Insurance shall contain the following clauses: (1) The clause "other insurance provisions," in a policy in which the County of Pitkin is named as an insured, shall not apply to the County of Pitkin. (2) The insurance companies issuing the policy or policies shall have no recourse against the County of Pitkin for payment of any premiums or for assessments under any form of policy. (3) Any and all deductibles in the above-described insurance policies shall be assumed by and be for the amount of, and at the sole risk of the Company. .11- 11 (4) Location of operations shall be: "all operations commencing or terminating at the Airport and locations at the Airport in connection with the Use and License Agreement". F. Certificates of Insurance for all renewal policies shall be delivered to the Director of Aviation at least fifteen (15) days prior to a policy's expiration date except for any policy expiring on the expiration date of this Agreement or thereafter. 16. PATENTS AND TRADEMARKS. The Company represents that is the owner of or fully authorized to use any and all services, processes, machines, articles, marks, signs, names or slogans to be used by it in its operations under or in anywise connected with this Agreement. The Company agrees to save and hold the County, its officers, employees, agents and representatives, free and harmless of and from any loss, liability, expense, suit or claim for damages in connection with any actual or alleged or actual unfair competition or other similar claim arising out of the operations of the Company under or in anywise connected with this Agreement. 18. THIRD PARTIES. This Agreement does not, and shall not be deemed or construed to confer upon or grant to any third party or parties (excepting parties to whom the Company may assign this Agreement in accordance with the provisions hereof, and excepting any successor to the County) any right to claim damages or to bring any suit, action or other proceeding against either the County or the Company because of any breach hereof or because of any of the terms, covenants, agreements and conditions herein contained. 19. TAXES AND LICENSES. The Company agrees to pay promptly all taxes, excises, license fees and permit fees of whatever nature, applicable to its operation at the Airport, and to take out and keep current all licenses, municipal, state (including, -12- (J specifically, required PUC/FHWA licenses and permits) or federal, required for the conduct of its business hereunder, and further agrees not to permit any of said taxes, excises or licenses fees to become delinquent. The Company also agrees not to permit any mechanic's or any other lien or statutory claim to become attached or be foreclosed upon the property herein above described, or any part or parcel thereof, by reason of any work or labor performed or materials furnished. The Company further agrees to furnish the County upon request, duplicate receipts or other satisfactory evidence showing the prompt payment by it of social security, unemployment compensation, withholding, all required licenses and all taxes. The Company further agrees to pay promptly when due all bills, debts and obligations incurred by it in connection with its operation of said business at said Airport, and not to permit the same to become delinquent, and to suffer no lien, mortgage, judgment, execution or adjudication in bankruptcy which will in any way impair the rights of the County under this Agreement. 20. COMPLIANCE WITH ALL LAWS AND REGULATIONS. The Company agrees not to use or permit the licensed and used areas to be used for any purpose prohibited by the laws of the United States or the State of Colorado or the Code or Regulations of the County of Pitkin, and it further agrees that it will use the areas herein described in accordance with all general rules and regulations adopted by the County for the government and operation of the Airport, either promulgated by the County on its own initiative or by or in compliance with regulations or actions of any federal agency authorized to regulate flights to and from said Airport. The Company further agrees to submit any relevant report or reports or information regarding its operations that the Director of Aviation may request. The Company agrees to abide by and conform to the then-current Airport Security Plan. The Company further agrees to promptly pay any -13- I~ fines assessed by the Federal Aviation Administration (FAA) as a result of a security violation by the Company, its officers, employees, agents or subcontractors. 21. NON-EXCLUSIVE. The Company acknowledges that this Agreement is non- exclusive and that the County has the right to grant such other licenses, franchises, leases, concessions and/or permits as it deems, in the exercise of its discretion that, in the sole opinion of the County, are necessary or desirable to the efficient or economical operations of the Airport. 22. DEFAULT AND TERMINATION The standards and procedures for declarations of Default(s) under this Lease and termination of Lessee's possessory rights under this Lease and/or of the Lease itself shall be as follows: A. Incidents of Default by Lessee. The following acts or omissions by Lessee are agreed to be Incidents of Default 1. Failure to make full and timely payments of rent, additional rent or other fees or charges due and payable hereunder; or 2. The creation, maintenance, failure to correct or sufferance of a dangerous or hazardous condition on or emanating from the Premises; or 3. Failure to obtain, maintain in full force and effect and/or provide proof of all required types, forms and amounts of insurance; or 4. Failure to provide and maintain current and required performance and payment surety and proof thereof; or 5. Making an assignment, conveyance or transfer of its rights and obligations hereunder without the consent of County; or -14- I~ 6. 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 7. Failure to comply with any other obligation under this Lease and Use Agreement. B. 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) therefor acceptable to County. C. Lessee's Right to Cure. Lessee shall have the right to cure an Incident of Default, unless Lessee has abandoned the Premises, in which case Lessee shall be deemed to have waived any right to cure. As a condition precedent to this right to cure, Lessee must provide Notice, promptly after the effective date of the Notice of Default, to 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: 1. 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 2. Within ten (10) calendar days if the default is failure to make full and timely payments hereunder; or 3. 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. -15- \~ 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. D. County's Right to Cure. If Lessee should fail to cure any default hereunder within the time herein permitted, or if a dangerous or emergency situation exists at any time, County, without being under any obligation to do so and without thereby waiving such default, may make such payment and/or remedy such other default for the. account of Lessee (and enter the Premises for such purpose), and thereupon Lessee shall be obligated, and hereby agrees, to pay as Additional 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. E. 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, may thereafter either terminate Lessee's possessory rights under this Lease -16- \1 or terminate the Lease itself and all of Lessee's rights hereunder or both in sequence, by Notice to the Lessee. F. 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: 1. 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 and breach of the peach can be avoided, without use of legal process. Thereafter County may possess, hold and use the Premises and may alter all locks and other security devices thereon. 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. 2. 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 Base Rent and any Additional Rent required to be paid by Lessee to County during -17- \g the remainder of the Term until the date of expiration of the Term, adjusted as follows: a) Plus all such amounts accrued prior to repossession; b) Plus expenses of County arising from repossession; c) Minus amounts received by County through re-Ietting. 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-Iet. At any time after such re-taking of possession by County, County may sublet or relet the Premises or any part thereof, in the name of the Lessee or otherwise for such term (which may be greater or less than the balance of the term of this Lease) and on such conditions as the County, in County's absolute discretion, may determine, and may collect and receive the rents therefor. 1) 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, -18- jq including that which is owned by or leased to Lessee, at all times prior to any foreclosure thereon by County or repossession thereof by a County thereof or third party having a lien thereon. 2) 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 the County in which the Premises are located, 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. 3) 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 thereof 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 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 -19- ~o 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. 3. The rights of County herein stated 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. G. Termination of the Lease. If County gives Notice of Termination of the Lease, the following substantive and procedural elements shall apply: 1. 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. 2. 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 lump sum the sum of all Base Rent and Additional Rental and other indebtedness to County accrued to date of such termination, plus, as and for liquidated damages for Lessee's default, an amount equal to the present value of the total Base Rent that would have -20- J \ 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-Ietting 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 rate then in effect at any commercial bank then with an office in Pitkin County. H. Not a Surrender. Exercise by County of anyone 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 andfor 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. I. Property Left on Premises. Any property of Lessee, or of anyone claiming under, by, or through Lessee, which is left on the Premises more than fifteen days after -21- JI). expiration of the Term or termination of possessory rights 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 anyone claiming under, by, or through Lessee. J. 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 hereunder 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. K. 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. -22- }2 L. Default by County; Lessee's Remedies. In the event of any default by Lessee, Lessee's exclusive remedy shall be an action for damages, but prior to any such action Lessee will give Lessee written notice specifying such default with particularity, and Lessee shall thereupon have 20 days (or such longer period as may be necessary in the circumstances) in which to cure any such default. Unless and until Lessee fails so to cure any default under such notice, Lessee shall not have any remedy or cause of action by reason thereof. All obligations of Lessee hereunder will be construed as covenants, not conditions; and all such obligations will be binding upon Lessee only during the period of its ownership of the Building and not thereafter. M. 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. 23. NOTICES. All notices required to be given to the County hereunder shall be given by hand-delivery or certified mail, return receipt requested, addressed to the Director of Aviation, Aspen/Pitkin County Airport, 0233 Airport Road, Suite A, Aspen, Colorado 81611; with a copy to the Board of County Commissioners of Pitkin County, Colorado, c/o County Manager, 506 East Main Street, Aspen, Colorado, 81611; all notices required to be given to the Company hereunder shall be given by hand-delivery or certified mail, return receipt requested, addressed to as specified on the sionature paQe hereof; provided, however, that either party hereto may designate in writing from time to time the addresses of substitute or supplementary persons within the State of Colorado to receive such notices. The effective date of service of any such notice shall -23- 9-Y be the earlier of the date such notice is hand-delivered to the other party or three(s) calendar days after proper mailing thereto. 24. WAIVERS. No waiver of default by the County of any of the terms, covenants or conditions hereof to be performed, kept and observed by the Company shall be construed as or operate as a waiver by the County of any subsequent default of any of the terms, covenants or conditions herein contained to be performed, kept and observed by the Company. 25. ASSIGNMENT. The Company covenants and agrees not to assign, sublet, encumber, pledge or transfer any of its rights in this Agreement, in whole or in part, nor grant any license or concession hereunder, without first obtaining the written consent of the County. A transfer of more than thirty percent (30%) of the issued and outstanding capital stock of the Company (or other ownership interest in the Company), whether by a single transaction or in the aggregate, shall be construed to be a transfer or assignment requiring the consent hereunder. 26. AGREEMENT SUBORDINATE TO AGREEMENTS WITH UNITED STATES. This Agreement is subject and subordinate to the terms, reservations, restrictions, and conditions of any existing or future agreement between the County and the United States, relative to the operation or maintenance of the Airport, the execution of which has been or may be required as a condition precedent to the expenditure of federal funds for the development of the Airport. 27. AGREEMENT BINDING. This Agreement shall be binding on and extend to the successors and assigns of the respective parties hereto. -24- ;)7 28. PARAGRAPH HEADINGS. The paragraph headings contained herein are for convenience in reference only and are not intended to define or limit the scope of any provision of this Agreement. 29. AGREEMENT MADE IN COLORADO. This Agreement shall be deemed to have been made in, and construed in accordance with the laws of, the State of Colorado, and venue is agreed to be exclusively within the Courts of Pitkin County, Colorado. 30. MANAGER'S AUTHORIZED REPRESENTATIVE. Wherever reference is made herein to the "Director of Aviation or his authorized representative," or words of similar import are used, the Board of Pitkin County Commissioners shall be such until written notice otherwise is hereafter given to the Company. 31. NO DISCRIMINATION. The Company, for itself, its successors and assigns, as a part of the consideration hereof, does hereby covenant and agree that in the event facilities are constructed, maintained, or otherwise operated on the property covered hereby for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provision of a similar service or benefit, the Company shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted program so the Department of Transportation- Effectuation of Title VI of the Civil Rights Act of 1964, and as said regulation may be amended. In addition, the Company agrees to comply with the letter and spirit of the Colorado Antidiscrimination Act of 1957, C.R.S. 24-34-401 et seo., as amended. That in the event of breach of any of the above nondiscrimination covenants, which breach shall not be immediately cured, the County shall have the right to terminate the -25- ~~ Agreement and to reenter and repossess the license area, covered hereby and the facilities therein and thereon, and hold the same as if said Agreement had never been made or issued. The right of termination contained in this paragraph shall be in addition to those contained in elsewhere herein and may be exercised separately therefrom without written notice. 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 concession agreement, management contract, or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR Part 26, subpart G. The Lessee agrees to include the above statements in any subsequent concession agreement or contract covered by 49 CFR Part 26, subpart G, that it enters and cause those businesses to similarly include the statements in further agreements. 32. ILLEGAL ACTS. The parties hereto aver that they are familiar with the Pitkin County Procurement Code, C.R.S. 18-8-301 et sea., (Bribery and Corrupt Influences) and C.R.S. 18-8-401 et sea., (Abuse of Public Office), and that no violation of such provision is present. 33. CONFLICT OF INTEREST. The parties aver that to their knowledge, no County employee has any personal or beneficial interest in this contract. -26- r;.1 34. ATTORNEY'S FEES. If legal action is necessary to enforce any of the provision of this Agreement, the prevailing party shall be entitled to its attorney's fees, plus costs, including expert witness fees. 35. AMENDMENTS. This Agreement is agreed by the parties to represent the complete Agreement of the parties and includes any and all prior representations, statements and agreements, whether oral or written. This Agreement may only be amended or modified in a writing signed by both parties and approved by the Board of County Commissioners acting at a regular meeting. IN WITNESS WHEREOF, the parties have executed this Agreement, as follows: Countv: Company: THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO ST. REGIS RESORT ASPEN SL T ASPEN DEAN STREET LLC A Delaware Limited Liability Company BY:C'2 -- IZ!tz/()/P . "r~ By: -=---.,...... ~e.e.1W - G.M-. \.1..\. ''U...1Jo:. Date Date -27- ~