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LICENSE AND USE AGREEMENT
AUTOMATIC TELLER MACHINE (ATM) CONCESSION
THIS LICENSE AND USE AGREEMENT made as of the date last below signed, is by and
between the Board of County Commissioners of Pitkin County, Colorado, a Colorado home-
rule county ("County") and the Aspen Banking Services, a Colorado Licensee ("Licensee"):
WHEREAS, the County is the owner, sponsor, and operator of the Aspen/Pitkin County
Airport (Sardy Field), located in Pitkin County in the vicinity of Aspen, Colorado (hereinafter
the "Airport"), at which it has made available certain public airfield aviation terminal and
facilities, certain areas for public use, certain areas for exclusive and non-exclusive
commercial use subject to permit and certain reserved areas; and
WHEREAS, the County has the authority to operate and manage the Airport, to regulate
commercial activities at the Airport and to lease and license space thereon, pursuant to, inter
alia, C.R.S. 30-11-107, 30-15-401, 30-35-201/202, 41-4-101 et seq., as amended, Title IV of
the Pitkin County Code, as amended, and Section 8.7 of the Pitkin County Home Rule
Charter; and
WHEREAS, Licensee is engaged in the business of providing banking services including
automatic/automated teller services/machines (ATM), in which service and business it desires
to occupy and use some of the said location and facilities of the Airport for commercial
purposes; and
NOW, THEREFORE, for and in consideration of the mutual covenants, terms and conditions
contained herein, the County and Licensee do mutually undertake and agree as follows:
1. Granting of License
1.1 The County grants to Licensee, during the term of this License, the right to
operate one (1) ATM in the Airport main air carrier terminal facilities, in the location and
under the terms and conditions hereinafter described. This right shall be an exclusive right,
subject only to present and future, State and Federal legislation, regulation and case law
affecting the County's power to grant such exclusive rights.
1.2 Nothing herein shall be construed to prevent Licensee from proposing to enlarge
and/or relocate its licensed area or from bidding/proposing on further permitted ATM-type
concession/machine operations.
1.3 The County also grants the rights of ingress and egress to the Location and the
right to use the public areas of the terminal, so long as such rights do not interfere with the
rights of other lessees, licensees or permittees of the terminal, the traveling public or the safe
and efficient operation of the terminal.
2. Term. The term of this License and Use Agreement shall commence at 6:00 a.m. MST
on November 1, 2000, and expire at 10:00 p.m. MST on October 31, 2001, unless earlier
renewed or terminated.
2.1 Renewal. The County may, if it so desires, provide the Licensee with an
annual review of its performance under this Agreement to be delivered ninety (90) days prior
to the anniversary date, that anniversary date being the date of Beneficial Occupancy. If no
such review indicating unsatisfactory performance is provided in writing within sixty (60) days
prior to any anniversary date, Licensee's performance shall be deemed to have been
satisfactory for the prior year.
2.2 At the option of the County and in mutual agreement with the Licensee and
provided Licensee is not in breach and has performed in a satisfactory manner acceptable to
the County, the County shall have the option to renew this Agreement under terms and
agreements acceptable to the County for two sequential additional one (1) year term.
2.3 The County's exercise of its right of renewal shall be exercised by delivery of
written notice to the Licensee sixty (60) days prior to the expiration of the term.
2.4 In the event the County decides not to renew this agreement a notice of
termination shall be send to the Licensee 60 days prior to the expiration of the term.
However, if in the event County does not send such Notice of Termination to the Licensee this
lack of notice shall not result in an automatic renewal of this agreement.
3. License Fees/Payments/Security
3.1 The fees and charges for the occupancy and use of the Location for the term of
this License and Use Agreement shall be due and payable, as follows:
3.1.1 The Licensee agrees to pay as compensation hereunder for the rights and
privileges herein granted a monthly fee of $.25 per transaction that is processed through the
ATM equipment described in this agreement.
3.1.2 No deduction shall be allowed for uncollected or uncollectible credit
accounts.
3.1.3 The. monthly payment as provided for in Section 3.1.1 or any partial
months shall be considered delinquent if not received by the fifth (5th) day of the month due.
If the fifth (5th) day of the month is a Saturday, Sunday or legal County holiday, that payment
shall be delinquent if not received on the next business day. The monthly payment shall be
accompanied with a detail summary report that accurately lists the number of transactions
processed through the ATM on a daily basis. The report must show the daily activity which
will then be totaled for the month and multiplied by $.25 per transaction, which will be the
monthly rental due as described in Section 3.1.1.
3.1.4 The Licensee agrees to provide a security deposit in a form of an
irrevocable Letter of Credit or a cash deposit in a form of a cashiers check, in the amount of
$300.00.
All payments shall be made to the Pitkin County Treasurer, 506 East
Main Street, Suite 201, Aspen, Colorado, 81611. All delinquent payments shall accrue default
interest on any .unpaid and delinquent balance on the fifth (5th) day of every month so
delinquent at the rate of two percent (2%) per month 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.
3.1.5 The County, annually, at the end of the term herein, unless expressly
waived by the County, may conduct audits of Licensee's books of account and records, which
audits shall be conducted upon reasonable notice to Licensee and during Licensee's normal
weekday business hours. In performing such audits, County shall be entitled to review, and
Licensee shall be obligated promptly to provide to the County upon demand therefor, all of the
books of account and records that Licensee is obligated to maintain pursuant hereto, as well as
other records, documents and files in Licensee's possession, custody or control during the term
hereof that the County, or its auditor, determine, in their reasonable discretion, are useful,
relevant or necessary to determine or verify the correct amount of reportable, includable and
excludable revenues and gross receipts enjoyed by Licensee, and the correct amount of
percentage rental owed by Licensee to the County, for the period involved. Should Licensee
fail to maintain the books of account and records required to be maintained pursuant hereto, or
should Licensee fail to deliver and permit County of its auditor to review Licensee's books and
records, and other documents and files, as required by this subparagraph, said default is agreed
by the parties to be a material breach of this License Agreement and Licensee agrees to pay, as
liquidated damages for such breach, an additional amount equal to either fifty (50%) percent of
the payments and charges due from Licensee hereunder for the most recent operations year for
which such books of accounts and records are available to the County; provided, however, that
Licensee shall only pay these damages for failure to keep required records if such requirements
are reasonable in light of Licensee's business practices.
If any audit shows percentage compensation and other fees and charges
that should have been paid to the County by the Licensee pursuant to this Agreement were
understated or underpaid for any period involved, Licensee shall, within thirty (30) days notice
by County of any such deficiency, pay to the County the full amount underpaid, plus two
percent (2%) interest per month, calculated as provided in paragraph 3.1.1, on such
underpayment from the time said underpayment should have been paid to the time said
underpayment is fully paid. If the amount of underpayment exceeds exactly three (3%) percent
of the total percentage compensation that was owed by Licensee to the County for the annual
audit period involved, Licensee, in addition to paying the County the underpayment owed and
interest accrued thereon, shall within thirty (30) days notice by the County. reimburse the
County for the cost of the audit not to exceed Fifteen Hundred Dollars ($1,500.00). If the
audit discloses overpayment of the percentage compensation paid to the County by Licensee,
the County shall refund the amount of overpayment to Licensee within thirty (30) days of said
audit.
The County shall hold all information obtained from any such audit in
confidence, except as may be necessary to enforce the County's rights under this Agreement,
except with respect to tax proceedings, and except with respect to any legal requirements or
Court Order to disclose said information.
4. Machine Area and Use. The County shall provide the Licensee with the exclusive right
to occupy and use the area(s) as is depicted on Exhibit "A", attached hereto and incorporated
herein by reference, for the sole purpose of operating an Airport ATM concession, as set out
herein.
5. Hours of Operation. Licensee shall provide a machine that is adequately equipped,
provisioned, and operational to serve the market demand seven (7) days per week throughout
the year at those same hours that the commercial terminal building is open for business.
6. Level of Service. Machine services shall comply with all Federal, state and county
regulations and shall be conducted in a courteous and helpful fashion.
6.1 The licensed area and machine in the terminal location shall be maintained in a
clean, attractive and first-class manner by the Licensee.
6.2 All other commercial activities are prohibited unless such activities have the
prior written approval of the Director of Aviation.
7. Quality of Service/Complaint Resolution/Performance Review by County.
7.1 Licensee acknowledges that the County has an interest in resolving any
complaints arising from the Licensee's operations, both as Licensor and-owner/operator of a
public Airport. Based on the foregoing, in the event that County shall receive any complaint
arising from the Licensee's operations, the County shall immediately transmit such complaint
to Licensee for resolution.
7.2 Within ten (10) business days of the receipt of written notification of a
complaint, whether submitted by the County or by a patron to Licensee, Licensee shall provide
to the Director of Aviation a written report of the complaint and its resolution or of Licensee's
attempts at resolution.
7.3 In addition, Licensee shall submit a six month report to the Director of Aviation
that describes all complaints received by Licensee and response made by Licensee to correct
the deficiencies, including those complaints referred by County. The report shall be submitted
within 30 days after the initial six months of the lease term and every six months thereafter if
the lease is extended. Failure by Licensee to resolve a majority of any complaints to the
satisfaction of the Director of Aviation shall be cause for termination hereof. The Director of
Aviation shall promptly respond to complaints by the public or submitted by the Licensee.
7.4 Licensee's employees shall be safety-conscious, environmentally-sensitive,
helpful, courteous, and dressed appropriately at all times, consistent with acceptable customer
relations practices at first-class U.S. resort and conference destination.
8. Reserved Rights of County. County reserves the following rights with respect to the
Location and the uses and operations to be conducted thereon by Licensee.
8.1 County reserves the right to unimpeded access over and across the Location;
provided that County shall not, in the exercise of this reserved right, unreasonably interfere
with Licensee's use of the Location. County shall be entitled to enter upon the Location and
into the buildings and other improvements thereon, in a reasonable time and manner consistent
with the purpose of the entry and inspection, for the purpose of inspecting the same, ensuring
compliance with the terms of this License, preventing waste or loss, responding to emergencies
or complaints or enforcing any of County's rights hereunder.
8.2 County reserves, for the use and benefit of the public, the right of flight for the
passage of aircraft in the air space above the surface of the Location, together with the right to
cause in and around said air space such noise as may be inherent in the operation of aircraft
utilizing the Airport.
8.3 County reserves the right to protect the aerial approaches of the Airport against
obstruction, including the right to prohibit Licensee from erecting, or permitting to be erected
or maintained, any building or other structure or obstruction on the Location which would, in
the discretion of the County, limit the aeronautical usefulness of the Airport or constitute a
hazard to aviation.
8.4 County reserves the right, during the time of war or national emergency, to
lease the Airport or any part thereof, including the Location 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 provision of this License shall be suspended insofar as
such provisions may be inconsistent with the provision of the lease to the United States
Government.
8.5 County reserves the right to subordinate the provisions of this License, without
prior notice to Licensee, 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 License shall be suspended and/or automatically modified
insofar as such provisions are inconsistent with the provisions of the agreement with the United
States Government. If, by reason of any agreement with the United States Government as
aforesaid, it becomes necessary to modify, relocate or remove any improvements or other
structures situated on the Location, the Licensee agrees to modify, relocate or remove any such
improvements or structures as directed by County and County shall reimburse Licensee for the
reasonable cost and expense thereof.
8.6 County reserves the right to direct, in its sole discretion, all activities of the
Licensee at the Airport in the event of an emergency.
8.7 County reserves the right to further plan, develop, improve, remodel and/or
reconfigure the Airport, including the location, the terminal building, and existing vehicle and
pedestrian traffic patterns, and parking lots as County deems appropriate without interference
or hindrance by the Licensee, and County shall have no liability hereunder to Licensee by
reason of any interruption to Licensee's operations on the Location occasioned by such County
activities; provided, however, that County shall consult in advance with Licensee on such
changes and if Licensee shall be unable to conduct reasonably normal seasonal business
operations on the Location by reason of any such County activities, then the fees hereunder
shall be equitably adjusted during the period of such interruption.
8.8 The County reserves the right, in its sole discretion, to enter into agreements for
the financing or re-financing of the airport and Licensee agrees to cooperate in providing
information to prospective lenders and in providing estoppel certificates, if so requested.
8.9 County reserves the right to prohibit any commercial or non-commercial activity
by any party on the Airport, which activity is not expressly permitted in writing.
8.10 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.
8.11 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.
9. Acceptance of Location. The parties acknowledge that Licensee accepts the Location
on an "as is" basis.
9.1 Use of Location. Licensee shall have the exclusive right to use and occupy the
Location solely for the purpose of maintaining an ATM concession location as defined herein.
10. Coordinating with other Airport Users. County and Licensee acknowledge that each
has rights and obligations arising from various third-party agreements with other Airport users.
County and Licensee agree to cooperate with each other to effectuate these third-party
agreements, so long as such agreements are not illegal, impossible, or do not unreasonably
interfere with Airport operations or the rights and obligations of the various parties. County
and Licensee acknowledge their respective obligations as signatories under the following
Agreements:
10.1 That certain agreement for paid parking services between Pitkin County and the
commercial parking services licensee;
10.2 Those certain agreements for commercial ground transportation including taxis,
limousines, and buses;
10.3 Those certain agreements for on, or off-airport commercial car rental
companies;
10.4 Those certain agreements with the scheduled commercial airlines;
10.5 That certain Agreement between Pitkin County and the airport restaurant
licensee;
10.6 That certain Agreement between Pitkin County and the airport gift shop
licensee;
10.7 That certain Agreement between Pitkin County and the commercial terminal
building advertisement/marketing licensee;
10.8 Such further and other agreements as the County may amend or enter into from
time to time in the normal operation of the airport, provided there are no conflicts with the
terms of this Agreement, and provided that Licensee shall, upon request, be provided with
copies of any agreements that are connected to this obligation to cooperate, as set forth herein.
11. Compliance with Applicable Laws and Regulations. In connection with its occupancy
and use of the Location and the conduct of its operation thereon, the Licensee shall:
11.1 Comply with all applicable laws, rules and regulations of the County of Pitkin,
the State of Colorado, and the United States of America and any and all departments and
agencies thereof, as the same way now exist or may be hereafter promulgated or amended
from time to time.
11.2 Licensee agrees it will use the premises herein described in accordance with all
rules and regulations adopted by the County, or its Director of Aviation, for the management,
operation and control of the Airport, either promulgated by the County or said Director of
Aviation on its or his own initiative or by or in compliance with regulations or actions or any
Federal agency authorized to regulate interstate flights to and from said Airport.
11.3 Not discriminate against any person or class of persons by reason of race, color,
sex, creed, religion, handicap or national origin in providing any services or in the use of any
facilities provided for the public in any manner prohibited by Title 49, Code of Federal
Regulations, Subtitle A, Part 21 of the Regulations of the Office of the Secretary of
Transportation, and shall comply with the letter and spirit of the Colorado Anti-Discrimination
Act of 1957, as amended, and any other laws and regulations respecting discrimination in
unfair employment practices, and shall comply with such enforcement procedures as any
governmental authority might demand that the County take for the purpose of complying with
any such laws and regulations.
11.4 Pay promptly all taxes, excises, license fees and permit fees of whatever nature
applicable to its operations hereunder and to take out and keep current all licenses, municipal,
state or Federal, required for the conduct of its business or the operation or its equipment, and
further agrees not to permit any of said taxes, excises or license fees to become delinquent.
11.5 Comply with the rules and practices as set forth in the current Pitkin County
Airport Certification Manual, Airport Security Plan, and airport policy and/or procedures
memoranda, as amended from time to time. Any fines assessed against the County by the
FAA as a result of the Licensee's failure to comply with the provisions of this paragraph or
other intentional or negligent acts or omissions of Licensee, its employees or agent will be paid
promptly to the County by the Licensee.
11.6 Conduct its commercial activities in such a way as not to unreasonably interfere
with other permitted users of the Airport in non-exclusive areas. County shall operate the
Terminal in such a way as not to unreasonably interfere with Licensee's operations.
12. Environmental Quality Improvement Policy
It is the policy of the Pitkin County Board of County Commissioners (BOCC) that Pitkin
County plan for and continually reduce environmental degradation. It is the express intention
of the BOCC that all County lessees, licensees and permittees strictly comply with all existing
and future environmental rules and regulations, and be sensitive to all present and future
environmental issues. The County gives notice that environmental compliance and sensitivity
to environmental issues are and will be substantial factors in future performance reviews and
procurements.
13. Airport Master Plan. The parties acknowledge that the County has adopted an Airport
Master Plan that provides for potential changes to the Location during the term hereof.
Licensee shall cooperate in the implementation of said plan and will make no claim against the
County for other than the unreasonable interference with its business activities caused by such
implementation. Copies of the Airport Master Plan Update are available for inspection or for
sale in the office of the Director of Aviation.
14. Utilities. County shall provide electrical utilities normally associated with this specific
concession. All telephone access, service, service costs and maintenance as required for this
concession at the discretion of and as required by the Licensee shall be provided, and is the
sole responsibility of the Licensee.
15. Maintenance and Repair of Location.
15.1 County shall, at County's own expense, keep the structure and exterior of the
Air-carrier Terminal and the interior common areas in good condition and repair. The County
shall be responsible for maintenance and repair of the roof, exterior walls, floor (excluding
floor covering), structural components, heating, lighting, ventilation and electrical service (to
the point of connection); except if any damage thereto is caused by the negligence of Licensee,
in which case Licensee shall be responsible for such repair. Licensee shall be responsible for
maintenance and repair of all its trade fixtures and equipment; except if any damage thereto is
caused by the negligence of County, in which case County shall be responsible for such repair.
15.2 The County shall provide normal custodial services (sweeping, mopping, trash
collection, snow removal, etc.) to the common areas of main public terminal facilities.
Licensee shall provide normal custodial services within its exclusive area and shall keep its
exclusive areas clean, picked-up, orderly, in a safe condition and in accordance with first-class
maintenance practices and in common with other users of Licensee's classification.
15.3 Licensee shall not cause nor, when advised thereof by the County, permit any
dangerous or hazardous condition or nuisance to exist related to the use and occupancy granted
herein.
15.4 Licensee shall not place any displays, signs, advertising or brochures upon the
Location, except of such design, content and structure as shall be approved by the Director of
Aviation, provided that such approval shall not be unreasonably withheld. Any sign permitted
by County shall, in addition, at all times comply with applicable Airport policies, rules and
regulations.
16. Licensee's Personal Property/Trademarks. All personal property, equipment,
furnishings, decorations and trade fixtures placed upon the Location by Licensee shall be at
Licensee'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.
Licensee 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, trademarks, logos, names
or slogans to be used by it in its operations under or in any way connected with this
Agreement. Licensee agrees to save and hold the County, its officers, employees, agents and
representatives free and harmless of and from any loss, liability, expense, suit, demand or
claim 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 actions of Licensee under or in any way connected with this
Agreement.
17. Destruction of Buildings and Other Improvements. If the buildings and other
improvements located upon the Location shall be rendered untenantable by fire or other
casualty, County shall, at County's cost (subject to and secondary to Licensee's obligation, if
any, to provide fire and casualty insurance for the Location, as provided below), restore and
repair the same to tenantable condition as speedily as possible and the rent shall be equitably
adjusted, 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 Licensee, its agents, employees, invitees or licensees.
Notwithstanding the foregoing, County shall not be obligated to expend in the restoration and
repair of any buildings or other improvements so damaged by fire or other casualty in excess
of the insurance proceeds received by County by reason thereof. If such insurance proceeds
are insufficient to pay in full the costs of such restoration and repair, County shall not be
obligated to undertake such restoration and repair unless Licensee shall agree to contribute to
the costs of such restorations and repair in an amount equal to such deficiency.
18. Indemnity and Insurance.
18.1 The Licensee, (including, by definition here and hereinbelow, the officers,
agents, and representatives) shall release and discharge the County; and the Licensee shall
indemnify and hold harmless the County of Pitkin and its officials, employees, agents and
representatives from and against liability for any claim, demand, loss, damages, penalty,
judgment, expenses, costs (including costs of investigation and defense), fees (including
reasonable attorney and expert witness fees) or compensation in any form or kind whatsoever
for any bodily injury, death, personal injury or property damage arising out of or in connection
with any intentional act or negligent act, error or omission by the Licensee, loss of use of
facilities/premises, or for any resulting liability alleged to accrue against the County on account
of the Licensee'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.
18.2 The Licensee further 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.
18.3 To fund this indemnity, in whole or in part, the Licensee shall secure and
maintain for the term of its contractual relationship with the County such insurance policies,
from companies licensed in the State of Colorado, as will protect itself, the County (with the
County named as additional insured), and others as specified, from claims for bodily injuries,
death, personal injury or property damage, which may arise out of or result from the
Licensee's intentional or negligent acts, errors or omissions. The following insurance
coverage, at or above the limits indicated and including such endorsements as are indicated by
an "X", are required:
18.3.1 All insurance coverages shall be in the amount and
coverages referred to in the attached Required Clauses.
18.4 To provide evidence of the required insurance coverages, copies of Certificates
of Insurance in a form acceptable to the County shall be filed with the County (through the
Director of Aviation) no later than fifteen (15) 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 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 coverages required herein, including a
change to policy limits as set out in the then-current policy declarations page.)
18.5 In addition, these Certificates of Insurance shall contain the following clauses:
18.5.1 The clause "other insurance provisions," in a policy in which the County
of Pitkin is named as an insured, shall not apply to the County of Pitkin.
18.5.2 The insurance companies issuing the policy or policies shall have no
recourse against the County of Pitkin for payment of any premiums or for assessments under
any form of policy.
18.5.3 Any and all deductibles in the above-described insurance policies shall be
assumed by and be for the amount of, and at the sole risk of the Licensee.
18.5.4 Location of operations shall be: "all operations and areas on the
Aspen/Pitkin County Airport conducted by or used and occupied by Licensee."
18.6 Certificates of Insurance for all insurance 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 the Agreement or thereafter.
18.7 County shall procure fire and extended coverage insurance and boiler insurance
covering the buildings on the Location for the full replacement value thereof. County shall
maintain such insurance in full force and effect during the term of this License and shall
furnish Licensee, at Licensee's request, with a copy of a certificate evidencing the issuance
thereof.
19. Rights of Seizure. County shall not be liable in any respect to Licensee in the event of
any seizure of all or any part of the Location, 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 fee provided hereunder shall abate during such period
of seizure to the extent that such seizure shall interfere with Licensee's ability to conduct its
business upon the Location.
20. Holdover. If Licensee remains in possession and use of the Location after the
expiration or termination of this term, the parties agree that Licensee's interest in the Location
shall be automatically deemed to be a month-to-month License and Use Agreement; subject to
the fees, charges, terms and conditions contained herein, or as new fees and charges may be
established, amended or terminated by the Airport upon ten (10) days notice. Such new fees
and charges which may be established during the term of the holdover will not exceed the
highest bid amount, if bids are solicited and received, during the holdover.
21. Assignment. Licensee shall not, voluntarily or by operation of law, assign, convey or
transfer this License, any of Licensee's interest in this License or any rights and obligations
hereunder; or sublicense the Location or any part thereof; or assign, convey or transfer a
controlling interest in Licensee's business entity, without the prior written consent of County,
which consent shall not be unreasonably withheld; provided, however, the Licensee shall be
required to provide evidence satisfactory to County of the successful business experience and
financial stability of Assignee/Transferee, and audit of and full payment of all costs, fees and
charges to the date of ass ignment/conveyance/transfer and proof of compliance of the
assignment/conveyance/transfer with the County's Airport management goals and objectives,
"including without limitation, small business goals, DBE goals, and environmental impact and
quality of service." Nothing contained interests in its personal property, fixtures, or related
assets, which security interests may be granted without prior consent of the County or the
Director of Aviation.
22. No Third Parties. This License and Use Agreement does not and shall not be deemed
or construed to confer upon or grant to any third party or parties, except to parties to whom
Licensee may assign this Agreement in accordance with the specific written permission of the
Director of Aviation, and excepting any successor to the County, any rights to claim damages
or to bring any suit, action or other proceeding against either the County or Licensee because
of any breach hereof or because of any of the terms, covenants, agreements or conditions
herein contained.
23. Relationship of Parties. It is the intent and agreement of the County and the Licensee
that they shall have the relationship respectively of Licensor/Licensee and Permittor/Permittee
hereunder, and nothing contained herein shall be deemed or construed to constitute the parties
as partners or joint venturers, and in no event shall County be liable for any loss which may
result from the operations of Licensee upon the Location or for any indebtedness incurred by
Licensee in the operation of its business on the Location or for the claims of third parties
against Licensee in the conduct of its business.
In addition, County shall not be liable in any manner to the Licensee for any damages the
Licensee may incur due to the inability of the County to deliver possession of the Location, or
any part thereof, to the Licensee for reasons beyond the reasonable control of the County.
24. Non-Liability of County's Agents and Employees. No official, agent, or employee of
County shall be personally liable to Licensee in the event of any default or breach hereunder
by County.
25. Termination. This Agreement may be terminated by the Licensee at the end of any one
year term by providing written notice to Aspen/Pitkin County Airport in the manner provided
in Paragraphs 27 & 28 below, and at least 90 days prior to the end of any one year term.
26. Default and Termination. If Licensee shall default in the payment of costs, fees or
charges when due or in the timely remittance to County of any other amounts to be remitted to
County under the provision of this License and shall not cure such monetary default within ten
(10) days after written notice from County specifying such default; or if Licensee shall default
in the performance of any other obligations or conditions to be performed by Licensee under
the provisions of the License and shall not cure such other default within ten (10) days after
written notice from County specifying such default (or within three (3) business days if the
default is maintenance of a hazardous condition or failure to maintain and/or prove required
insurance coverage); or in the event of the insolvency or bankruptcy of License; or in the event
of an unapproved (by County) assignment, transfer or conveyance of Licensee's interest as
defined herein; then in any of such events if such defaults shall remain uncured after the cure
period specified, County may thereafter terminate this License by giving written notice of
termination of Licensee. If, however, the Licensee demonstrates good faith due diligence in
curing such default as indicated herein, (with the exception of maintenance of a hazardous
condition or failure to maintain and/or prove required insurance coverage and monetary
default) the County shall grant additional reasonable time necessary to cure default not to
exceed thirty (30) days. Upon termination of this License, County may reenter the Location
and remove all persons and property therefrom, using all necessary force to do so, and shall
have such other rights and remedies as may be provided for by law or in equity, including
damages. In the event of any such default by Licensee, County shall be entitled to recover its
costs, including a reasonable attorney fee, in all proceedings in connection therewith.
27. Surrender of Location. Upon expiration or termination of this License, Licensee shall
surrender the Location to County in good condition and repair, ordinary wear and usage
excepted; and Licensee shall remove all personal property, trade fixtures, equipment or
improvements then owned by Licensee and removable by prior agreement with County from
the Location and shall repair any damage to the Location caused by such removal. Any
personal property of Licensee, or anyone claiming under License, which shall remain upon the
Location at the expiration or termination of this License shall be deemed to have been
abandoned and may be retained by County as County's property or disposed of by County in
such a manner as County sees fit without compensation to any party.
28. Notices. All notices required or authorized to be given hereunder shall be in writing
and shall be served upon the party entitled thereto by certified mail, return receipt requested,
addressed to such party at its address appearing on the signature page of this License (with a
copy delivered to its Airport Location), 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
personally to the party entitled thereto or three (3) business days after the same has been
properly deposited in the United States mail, with postage thereon fully prepaid, as aforesaid.
29. Representations of Licensee. Licensee represents and warrants to County as follows:
29.1 Licensee, and those individuals executing this License on behalf of Licensee,
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 seg. of the
Colorado Revised Statutes (Abuse of Public Office) and that no violations of the provisions
thereof are present.
29.2 Licensee, and those individuals executing this License on behalf of Licensee,
represent and warrant that to the best of their knowledge no employee of Pitkin County has
personal or beneficial interest whatsoever in the License or in the business to be conducted
upon the Location by the Licensee.
30. General Provisions
30.1 This License contains the entire agreement of the parties and there have been no
promises, representations or agreements, either express or implied, except as expressly set
forth herein. Any and all prior agreements or understanding between the parties are expressly
agreed to have merged herein.
30.2 The provisions of this License shall be severable and the invalidity of any
provision hereof shall not affect the validity of any other provision hereof.
30.3 This License may be modified or amended or supplemented only by an
instrument in writing signed by the parties hereto. The County's representative for the
administration of this Agreement shall be the Director of Aviation or his/her designee in
writing; provided, however, that all matters affecting material terms. of this Agreement,
including term, fees and charges and use of Location by Licensee, shall only be modified or
amended by a writing approved by a Resolution of the. Board of County Commissioners at a
duly-noticed public meeting.
30.4 The failure of either party hereto to exercise any right or remedy hereunder
shall not be deemed a waiver thereof or a waiver of the right of exercise the same at any future
time, or the waiver of any other right or remedy hereunder. No waiver by either party of any
right or remedy hereunder shall be effective unless in writing signed by the party.
30.5 The parties agree that this Agreement was negotiated and drafted by the mutual
efforts of the parties hereto and agree that no legal presumption shall arise as a result of the
identity of the drafter of this Agreement or any presumed unequal status arising therefrom.
30.6 If either party hereto shall institute legal proceedings to protect or enforce any
of its rights or remedies hereunder, then the party prevailing in such legal proceedings shall be
entitled to recover all of its costs in connection therewith, including a reasonable attorney's
fee.
30.7 This License shall be governed by and construed in accordance with the laws of
the State of Colorado and venue is agreed to be exclusively in the courts of Pitkin County,
Colorado.
30.8 This License shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, successors and assigns.
30.9 This License shall be executed in duplicate originals, with one original to be
held by each party.
31. Authority of Licensee's Representative. As an inducement to the County to execute
this agreement, the undersigned representative of Licensee represents that he/she is expressly
authorized to execute this Agreement and to bind Licensee to the terms and conditions hereof
and acknowledge that the County is relying on this representation, authorization and execution.
COUNTY: LICENSEE:
ASPEN PITKIN COUNTY AIRPORT ASPEN BANKING SERVICES
B
Y• By:
Peter Van Pelt Alex Ortiz de Elgue "
Director of Aviation _
Title:
Date Date
5,-aw
Suz4ge Konchin
County Manager
IO 3l oy
Date
John Ely
County Attorney
ld
Date
Hilary S i
Assistant ounty Manager and County Risk Manager
Date
TT ST: ATTEST:
Pi in County Cler Corporate Secretary Seal
County's Address: Licensee's Address:
Pitkin County Alex Ortiz de Elguea
506 East Main Street P.O. Box 9871
Aspen, Colorado 81611 Aspen, Colorado 81612
Attachments:
Exhibit A - ATM area location diagram
Required Clauses
cAatm_agreement.doc
REQUIRED CLAUSES
For purposes of these required clauses, "Contractor" means the bidder/proposer or other party who may eventually
enter into a contract with the County.
The Bidder/Proposer shall be subject to the following provisions:
1. COMPLIANCE WITH PROCUREMENT CODE AND APPLICABLE STATE CONTRACTING LAW
A. The contractor acknowledges that this Agreement is entered into subject to the requirements of the "Pitkin
County Procurement Code," (Section 8.5 of the Pitkin County Home Rule Charter, Resolution No. 82-37,
April 12, 1982). As such, the Contractor agrees to comply with all requirements of said Procurement
Code, and such requirements are incorporated herein by this reference.
B. The Contractor shall immediately notify the County Manager in writing of any violation of said Code or
statutes by the County's employees or agents, which violation(s) is known or should have been known by
him, and failure to so notify the County of any violation(s) within five (5) days of knowledge of such
violations shall be considered a breach of this Agreement. Further, such failure to notify the County of
violation of the Procurement Code or statutes within five (5) days of knowledge shall be deemed as a
waiver of any action or defense that the Contractor may have against the County by reason of such
violation of the Procurement Code or statutes.
2. WARRANTIES AGAINST CONTINGENT FEES, GRATUITIES, KICKBACKS AND CONFLICT OF
INTEREST
A. Covenant Against Contingent Fees. The Contractor warrants that no person or selling agency has been
employed or retained to solicit or secure this Contract upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the Contractor for the purpose of securing
business.
B. Gratuities Prohibited. The Contractor agrees not to give any employee or former employee of Pitkin
County a gratuity or any offer of employment in connection with any decision, approval, disapproval,
recommendation, preparation of any part of a program requirement or a purchase request, influencing the
content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any
other advisory capacity in any proceeding or application, request for ruling, determination, claim or
controversy, or other particular matter, pertaining to this Contract or Subcontract, or to any solicitation or
proposal therefor.
C. Gratuity means a payment, loan, subscription, advance deposit of money, services, or anything of more
than nominal value, present or promised, unless consideration of substantially equal or greater value is
received.
D. Kickbacks Prohibited. It shall be a breach of Contract for any payment, gratuity, or offer of employment
to be made by or on behalf of a subcontractor under a contract to the prime contractor or higher tier
subcontractor or any person associated therewith, as an inducement for the award of a subcontract or
order. The Contractor is prohibited from inducing, by any means, any person employed under this Con-
tract to give up any part of the compensation to which he/she is otherwise entitled. The Contractor shall
comply with all applicable local, state and federal "anti-kickback" statutes or regulations.
E. Conflict of Interest Prohibited. No official, officer, employee or representative of the County during the
term of this Contract or one(1)year thereafter shall have any interest, direct or indirect, in this Contract or
the proceeds thereof. (Additional restrictions on present and former employees of County are found in
Article 7 of the Procurement Code).
F. Sub-Contract Clause. The prohibitions against contingent fees, gratuities, kickbacks and conflict of interest
prescribed in this Contract shall be made a condition of and conspicuously set forth in every sub-contract
and solicitation therefor.
G. Conspicuously means written in such special or distinctive format, print, or manner that a reasonable
person against whom it is to operate ought to have noticed it.
H. Remedies. In addition to other remedies it may have for breach of the prohibitions against contingent fees,
gratuities, kickbacks and conflict of interest, the County shall have the right to:
(1) Terminate this Contract without liability by the County;
(2) Debar or suspend the offending parties from being a contractor or sub-contractor under County
contracts;
(3) Deduct from the contract price or consideration, or otherwise recover, the value of anything
transferred or received by the Contractor; and
(4) Recover such value from the other offending parties.
3. EQUAL EMPLOYMENT OPPORTUNITY AND DISADVANTAGED/MINORITY/WOMEN
BUSINESS ENTERPRISES(DBE/MBE/WBE)
A. Pursuant to local, state and/or federal anti-discrimination and affirmative action programs, contractor shall
meet all applicable requirements with respect to employment and subcontracting in connection with
Disadvantages/Minority/Women individuals and enterprises(DME/MBE/WBE).
B. In connection with the execution and administration of this Contract, and any subcontracts, the Contractor
shall not discriminate against any employee or applicant for employment because of race, religion, color,
sex, national origin, age, handicap or status as a veteran.
C. In connection with the performance of this Contract, the Contractor will cooperate with the County in
meeting the County's commitments and goals with regard to the maximum utilization of disadvantaged,
minority and women business enterprises and will use its best efforts to ensure that such business
enterprises shall have the maximum practicable opportunity to compete for employment and/or subcontract
work, if any, under this Contract.
D. The Contractor will furnish all necessary information and reports and will permit access to its books,
records, and accounts by Pitkin County for purpose of investigation to ascertain compliance with the
nondiscrimination/affirmative action provisions of any resultant contract.
E. Employment Data and Affirmative Action Plan. If requested, the Contractor agrees to submit on an
Employment Data Form to be provided by the County, the data showing the utilization of disadvantaged
persons, minorities and women by job category within its organization. Where the Contractor has fifty
(50) or more employees or it is participating in contracts with the County which exceed Fifty-Thousand
($50,000.00) Dollars, an Affirmative Action Plan must be submitted to the County when requested by the
County Attorney's Office within ten(10)days after selection.
F. Noncompliance. In the event of the Contractor's noncompliance with the nondiscrimination/affirmative
action provisions of any resultant contract, Pitkin County shall impose such contract sanctions as it may
determine to be appropriate, including, but not limited to:
(1) Withholding of payments under the Contract until the Contractor complies, and/or
(2) Cancellation, termination, or suspension of the Contract, in whole or in part.
4. TERMINATION FOR DEFAULT OR FOR CONVENIENCE OF COUNTY
A. The performance of work under the Contract may be terminated by the County:
(1) Whenever the Contractor shall default in performance of this Contract in accordance with its terms,
and fails to cure or show cause why such failure to perform should be excused within ten(10) days
(or longer as the County may allow or shorter, but not less than three(3)days, for failure to provide
proof of insurance or maintenance of any dangerous condition)after hand-delivery or mailing to the
Contractor of a notice specifying the default. If mailed, said notice shall be sent by certified mail,
return receipt requested, to the address specified herein for the Contractor.
The Contractor shall not be in default by reasons of any failure in performance of this Contract in
accordance with its terms if such failure arises out of causes beyond the control and without the fault
or negligence of the Contractor. Such causes may include, but are not restricted to, acts of God,
natural disasters, strikes, or freight embargoes, but in every case the failure to perform must be
beyond the control and without the fault or negligence of the Contractor. Upon request of the
Contractor, the County shall ascertain the facts and failure, and, if the County shall determine that
any failure to perform constituted a valid commercial excuse, the performance shall be revised
accordingly and notice of default withdrawn; or
(2) Whenever for any reason and in its sole discretion the County shall determine that such termination
is in its best interest and convenience.
B. Notice of Termination. In the event of termination for the convenience of the County, the County shall
deliver to the Contractor a written notice of termination, specifying the reasons therefor, and the effective
date of such termination. The effective date shall not be earlier than the date of hand-delivery or the date of
mailing of the notice, plus three (3) business days. The notice of termination shall be sent regular first-
class mail to the address of the Contractor herein provided.
C. Termination Procedure. After the effective date of the notice of termination for default or for the
convenience of the County, unless otherwise directed by the County, the Contractor shall:
(1) Stop work under the Contract on the date specified in the notice of termination.
(2) Place no further orders for materials, services or facilities.
(3) Terminate all orders and subcontractors to the extent that they relate to the performance of work
terminated by the notice of termination.
(4) With the approval or ratification of the County, settle all outstanding liabilities and all claims arising
out of such termination on orders or subcontracts, the cost of which would be compensable or
reimbursable in whole or in part in accordance with this Contract.
D. Termination Payment. After the effective date of a notice of termination for the convenience of the
County, the Contractor shall submit to the County his termination claim in the form of a final invoice in
accordance with the provisions in "Method of Payment," including costs incurred to the date of
termination, and costs incurred because of termination, which termination costs shall not exceed 10% of the
total amount of proposal; provided, however, that in the event of default by the Contractor, no extra costs
incurred because of termination shall be paid to the Contractor and any costs paid shall not be a waiver of
any claim, counterclaim or set-off by the County against the Contractor on account of any default. Such
claim must be submitted promptly, but in no event later than thirty (30) days from the effective date of
termination, unless one or more extensions are granted in writing by the County. Upon the Contractor's
failure to submit a claim in the time allowed, the County may review the information available to it and
determine the amount due the Contractor, if any, and pay the Contractor the amount as determined.
E. Termination Settlement. Subject to Paragraph 4.D., the Contractor and County may negotiate the whole or
any part of the amount or amounts to be paid, upon termination for default or for the convenience of the
County.
F. Remedies. The Contractor shall have the right of appeal from any determination made by the County
under "Termination for Default or for Convenience of County;" except that if the Contractor has failed to
submit his claim within the time provided in Paragraph 4.D., above, and has failed to properly request
extension, he shall have no such right of appeal. In any case where the County has made a determination
of the amount due under Paragraphs 4.D. or 4.E., above, the County shall pay the Contractor: (1) the
amount the County has determined if there is no right to appeal or if no timely appeal has been taken, or
(2)the amount finally determined on such appeal if an appeal has been taken.
G. Method of Appeal. If the Contractor disagrees with the County's determination under Paragraphs 4.D. or
4.E., he can appeal this decision in writing to the County. Such appeal must be made within twenty (20)
days of receipt in writing of the County's determination. The County shall have twenty(20) days in which
to respond in writing to the appeal. The County's response shall be final and conclusive unless within
thirty (30) days from the date of receipt of such response the Contractor submits the dispute to a court of
competent jurisdiction or submits a demand for arbitration if required by the Contract Documents.
5. INTEGRATION AND MODIFICATION
A. This Contract constitutes the full and complete agreement of the parties and supersedes or incorporates any
prior written and oral agreements of the parties. In addition, the Contractor understands that unless the
contract is for goods or services of a value less than $25,000, no County official or employee, other than
the Board of County Commissioners acting as a body at a Board meeting, has authority to enter into a con-
tract or to modify the terms of this contract on behalf of the County. Any such contract or modification to
this contract must be in writing and be executed by the parties hereto.
B. With respect to change orders under the Contract, the County and the Contractor shall process and
approve/disapprove requests for change orders as otherwise provided in this Contract, subject to the
requirements of the Procurement Code and the Finance Office.
6. INDEMNITY
A. The Contractor (including, by definition here and hereinafter, its officials, employees, agents and
representatives, subcontractors and suppliers), shall and hereby does release, discharge, indemnify and hold
harmless the County of Pitkin and its officials, employees, agents and representatives from and against lia-
bility for any claim, demand, loss, damages, penalty, judgment, expenses, costs (including costs of inves-
tigation and defense), fees (including reasonable attorney and expert witness fees) or compensation in any
form or kind whatsoever for any bodily injury, death, personal injury or property damage arising out of or
in connection with any negligent act, intentional act, error or omission by the Contractor, and for any
consequential liability alleged to accrue against the County on account of the Contractor's acts, errors or
omissions; provided, however, that such indemnity shall not be construed as an indemnity for bodily injury
or property damage arising from the sole negligence of the County or its employees.
B. The Contractor further shall investigate, process, respond to, adjust, provide defense for and defend, pay
or settle all claims, demands, or lawsuits related hereto at its sole expense and shall bear all other costs and
expenses related thereto,even if the claim, demand or lawsuit is groundless, false or fraudulent.
7. INSURANCE
A. In whole or in part, the Contractor shall secure and maintain for the term of its contractual relationship with
the County such insurance policies, from companies licensed in the State of Colorado, as will protect itself,
the County (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 Contractor's
acts, errors or omissions. The following insurance coverage, at or above the limits indicated and including
such endorsements as.are indicated by an "X", are required:
(1) Statutory Workers' Compensation: Colorado statutory minimums
(2) Commercial General Liability-ISO 1996 Form or equivalent
Each Occurrence Limit $1,000,000
General Aggregate Limit $1,000,000
Products/Completed Operations Aggregate Limit $2,000,000
Comprehensive Form(All risks)to include:
X Premises/Operations
Underground, Explosion&Collapse Hazard
X Products/Completed Operations
X Contractual Liability
X Independent Contractors and Subcontractors
X Broad Form Property Damage
X Personal Injury
(3) Business Auto Coverage:
Combined Single Limit Liability(each accident)
Coverage to include:
X Any Auto
X All Owned Autos
X Hired Autos
X Non-Owned Autos
Garage Liability
(4) Special Coverages (check as appropriate):
X(1) Performance Bond 100% of contract
Labor and Material
Payment Bond 100% of contract
X(2)Professional Errors and Omissions
(3)Aircraft Liability
(4) Owner's Protective
(5)Builder's Risk amount of project
(6) Boiler and Machinery
(7) Loss of Use Insurance
(8) Pollution Liability
(9)Crime, including Employee Dishonesty Coverage, or Fidelity Bond
B. To provide evidence of the required insurance coverages, copies of Certificates of Insurance in a form
acceptable to the County shall be filed with the County(through the Project Manager)no later than ten(10)
calendar days prior to commencement of operations affecting the County. Failure to file or maintain
acceptable Certificates of Insurance with the County is agreed to be a material breach of any contract and
grounds for rescission or termination. These Certificates of Insurance shall contain a provision that
coverage afforded under the policies will not be canceled or materially altered unless at least thirty (30)
calendar days prior written notice by certified mail, return receipt requested (effective upon proper
mailing), has been sent to the County (through the Project Manager). (For purposes of this provision,
"materially altered" shall mean a change affecting the coverage's required herein, including a change to
policy limits as set out in the then-current policy declarations page).
Simultaneously with the Certificates of Insurance, the Contractor shall file with the County (and promptly
update, as necessary) a certified statement as to claims pending against the required coverage's, reserves
established on account of such claims, defense costs expended and amounts remaining on policy limits.
C. In addition, these Certificates of Insurance shall contain the following clauses:
(1) The clause "other insurance provisions," in a policy in which the County of Pitkin holds a
Certificate, shall not apply to the County of Pitkin.
(2) The insurance companies issuing the policy or policies hereunder shall have no recourse against the
County of Pitkin for payment of any premiums or for assessments under any form of policy.
(3) Any and all deductibles in the above-described insurance policies shall be assumed by and be for the
amount of, and at the sole expense of the Contractor.
(4) Location of operations shall be: "all operations and locations at which work for the referenced
Project is being done."
D. Certificates of Insurance for all renewal policies shall be delivered to the Project Manager at least fifteen
(15) days prior to a policy's expiration date except for any policy expiring on the expiration date of this
Agreement or thereafter.
E. The County reserves the right to request and receive a copy of any policy and any policy endorsement.
8. EXEMPTIONS AND PREFERENCES
A. All purchases of construction or building or any other materials for any Contract shall not include Federal
Excise Taxes or Colorado State or local sales or use taxes. Pitkin County is exempt from such taxes under
registration numbers 98-02624 and 84-78000-5K.
B. Pursuant to state statute and to the extent permitted by law, Colorado labor shall be employed to perform
the work to the extent of not less than eighty percent(80%)of each type or class of labor employed on such
project; except for highway construction, which is subject to C.R.S. 43-2-208, which provides that all
laborers shall be bona fide residents of Colorado with a preference to residents of the County where the
work is performed.-
C. Preference is given, to the extent permitted by law, to: materials, supplies and provisions produced,
manufactured or grown in Colorado, quality being at least equal to materials, supplies and provisions from
outside the state; and to local (Roaring Fork Valley) services and labor of quality at least equal to non-local
services and labor.
9. RECORDS
The Contractor shall maintain comprehensive, complete and accurate books, records, and documents
concerning its performance relating to this Project for a period of three (3) years after final payment on the
Project and the County shall have the right within the three-year period to inspect and audit these books,
records and documents, upon demand, in a reasonable manner and at reasonable times, for the purpose of
determining, by accepted accounting and auditing standards, compliance with all provisions of the Contract
and applicable law.
10. SUCCESSORS AND ASSIGNS
This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the County
and the Contractor respectively and their agents, representatives, employees, successors, assigns and legal
representatives. Neither the County nor the Contractor shall have the right to assign or transfer its interest
or obligations hereunder without the written consent of the other party, which consent shall not be
unreasonably withheld.
11. THIRD PARTIES
This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or
parties, except to parties to whom Contractor or County may assign this Agreement in accordance with the
specific written permission, any rights to claim damages or to bring any suit, action or other proceeding
against either the County or Contractor because of any breach hereof or because of any of the terms,
covenants, agreements or conditions herein contained.
12. AGREEMENT MADE IN COLORADO
The parties agree that this Agreement was made in accordance with the laws of the State of Colorado and
shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado.
13. ATTORNEY'S FEES
In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing
party shall be entitled to its costs and reasonable attorney's fees.
14. NOTICES
Unless otherwise provided in the Contract Documents, all notices under the Agreement shall be sent
certified mail, return receipt requested, and shall be effective upon receipt or three (3) business days after
mailing, whichever is first.
15. Year 2000 Issues
Contractor hereby releases and holds Pitkin County harmless from any and all claims and
causes of action relating to performance of this Agreement of any nature whatsoever in tort,
contract, or otherwise, for any action, inaction or for any loss or damage attributable to,
resulting from, arising out of or in connection with a year 2000 error.
16. Governmental Immunit
Contractor agrees and understands that Pitkin County is relying on and does not waive, by any
provision of this Agreement, the monetary limitations or terms (presently $150,000.00 per person and
$600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado
Governmental Immunity Act, 24-10-101, et. sec., C.R.S., as from time to time amended, or otherwise
available to Pitkin County or any of its officers, agents or employees. Further, nothing in these Required
Clause or any other Contract Document shall be construed or interpreted to require or provide for
indemnification of the Contractor by the County for any injury to any person or any property damage
whatsoever which is caused by the negligence or other misconduct of the County or its agent or employees.
17. Current Year Obligations
The parties acknowledge and agree that any payments provided for hereunder or requirements
for future appropriations shall constitute only currently budgeted expenditures of Pitkin
County. Pitkin County's obligations under this Agreement are subject to Pitkin County's
annual right to budget and appropriate the sums necessary to provide the services set forth
herein. No provisions of this agreement shall constitute a mandatory charge or requirement in
any ensuing fiscal year beyond the then current fiscal year of Pitkin County. No provision of
this agreement shall be construed or interpreted as creating a multiple-fiscal year direct or
indirect debt or other financial obligation of Pitkin County within the meaning of any
constitutional or statutory debt limitation. This agreement shall not directly or indirectly
obligate Pitkin County to make any payments beyond those appropriated for Pitkin County's
then current fiscal year. No provisions of this agreement shall be construed to pledge or
create a lien on any class or source of Pitkin County's moneys, nor shall any provision of this
agreement restrict the future issuance of Pitkin County's bonds or any obligations payable
from any class or source of Pitkin County's money.
r
INSTRUCTIONS TO BIDDERS/PROPOSERS
FOR PITKIN COUNTY CONTRACTS
For the Project Entitled: ATM Concession
Date of Bid/Proposal Opening: August 1, 2000
1. a. A "bid" or "proposal" is a responsive, conforming, unconditional, complete (in ink or typewriter),
legible and properly executed offer on the form supplied to do the work called for in the Invitation To
Bid or Request For Proposals (and plans and specifications) for the compensation specified. For the
purposes of this document and the procedures specified herein, a "bid" or a "proposal" shall be subject
to the same procedural requirements and where only one such term is used, the other is to be implied,
as applicable, unless otherwise noted.
b. Bids and Proposals must be submitted in sealed opaque envelopes and submitted at the time and place
designated in the Invitation to Bid (ITB) or Request for Proposals (RFP). Bid or proposal envelopes
must be clearly marked on the front of the envelope as a "sealed bid" or "sealed proposal" with the
project name and the name, contact person, mailing address and telephone number of the bidder or
proposer.
C. It shall be the responsibility of the bidder or proposer to insure that the bid or proposal document is in
proper form and in the County's possession by or before the scheduled time and date of public bid or
proposal opening. Bids or proposals will not be accepted after the scheduled time and date of
opening. Any bids received late will be returned to the bidder unopened, if possible. In the event that
it is impossible to determine who the late bidder/proposer is unless the envelope is opened, the
envelope will be opened, the address determined, and the envelope and bid/proposer returned immedi-
ately without being considered a bid/proposal.
d. If specified in the Invitation To Bid or Request for Proposal, parties who request packages of bid or
proposal documents will be required to pay a fee or place a deposit for the document package. All
parties who actually receive packages must sign a list and leave the name of the potential
bidder/proposer, along with the name of a contact person, address and telephone number for the
purpose of dissemination of Addenda or additional bid or proposal information.
e. If a mistake is made or discovered at or after the public opening, the County reserves the right to
determine which party made the mistake and whether the mistake is material and, after these
determinations, the County, in its sole discretion, shall make the decision whether to accept or reject
the bid or proposal. No advantage shall be taken by either party of manifest clerical errors or
omissions in the bid or proposal documents or the Invitation To Bid or Request for Proposals (and
plans and specifications). All bidders/proposers are required to notify the County immediately of any
errors of omissions that may be encountered. (See 2.a. and 2.c., below).
f. Any interlineation, alteration or erasure must be initialed by the signer of the Bid or Proposal. If
provided on the required Bid/Proposal Form, the bid/proposal price of each item must be stated in
numerals and words; in case of a conflict, the words will control. In case of conflict between the
indicated sum of any addition of figures and the correct sum, the correct sum will control.
g. No reimbursement will be made by the County for any costs incurred in the preparation of a statement
of qualifications, or proposals or bids, or attendance at a site inspection, pre-bid conference or
interviews.
h. No person, firm or corporation shall be allowed to make, file or be interested in more than one bid or
proposal for the same work, unless'alternate bids or proposals are called for. A person, firm, or
corporation who has submitted a subproposal to Bidder, or who has quoted prices on materials to a
Bidder, is not hereby disqualified from submitting a subproposal or quoting prices to other Bidders.
2. a. If any person contemplating submitting a Bid or a Proposal is in doubt as to the true meaning of any
part of the Drawings, Specifications or other Bid, Proposal or Contract Documents, or finds discre-
pancies, errors, ambiguities, inconsistencies, incompleteness or omissions in the Drawings or
Specifications or the bid or proposal process, he/she must submit to the Project Manager a written
request for an amplification, clarification, explanation, interpretation or correction thereof.
b. Bidders/Proposers may propose substitute materials or techniques if such substitution is equal to or
better than the materials or techniques called out in the plans and specifications and if the substitution
has been submitted in writing at least ten (10) days prior to the public bid/proposal opening. The
burden of proof of equality or superior quality is on the proposer. If accepted as equal by the County
in its discretion, the substitute will be designated as an alternative on a formal addendum.
C. Any amplification, clarification, explanation, interpretation or correction of the documents will be
made only by written Addendum duly issued and a copy of the Addendum will be mailed or delivered
to each person receiving a set of the Bid or Proposal Documents. Neither the Owner nor the Project
Manager will be responsible for any information, representations, explanations or interpretations of
the Contract Documents not in written addenda.
d. The County reserves the right to call a pre-bid/proposal conference; if called and conducted, a
summary of the pre-bid/proposal conference will be mailed to all parties receiving a set of Bid or
Proposal documents.
e. On request, the County will provide each Bidder or Proposer access to the site to conduct, at Bidder or
Proposer's sole cost, such inspections, tests and investigations as each Bidder or Proposer deems
necessary for submission of a Bid or Proposal. No information provided by County representatives at
such a site inspection shall be deemed a waiver of the requirements of 2.a. and 2.c., above.
f. Any addenda issued during the time of the bid or proposal process, or forming a part of the Contract
Documents, shall be covered in the Bid or Proposal, and shall be made a part of the Contract. Receipt
of each Addendum shall be acknowledged in the Bid or Proposal.
g. IF specified in the Project RFP, a request for qualifications may precede the ITB/RFP process.
3. a. Each bid or proposal, if required by the bid/proposal documents, shall be accompanied by a certified
check or bid bond in a form acceptable to the County, in an amount specified, payable without
condition to the County as a guarantee that the Bidder/proposer, if awarded the Contract, will
promptly execute the Agreement in accordance with the Proposal and the other Contract Documents,
and will furnish, if required by the bid/proposal or contract documents, good and sufficient bonds for
the faithful performance of the contract and for the payment to all persons supplying labor and mater-
ial for the work (see 10.a., below). The Bid or Proposal guaranties of all parties except the three
lowest responsive bids/proposals will be returned promptly after the opening of Bids or canvass of
Proposals. After execution of the Contract and issuance of a Notice To Proceed, the remaining two
guaranties will be returned.
b. Bidder/proposer also, if required by the Bid or Proposal Documents, will fully complete and submit
with the bid or proposal a Pitkin County Bidder's Qualification Statement, or an updated Statement if
one is already on file. Pitkin County reserves the right to pre-qualify bidders or proposers based on
said qualification statements.
C. Bidder/proposer also must submit with the bid or proposal a list of subcontractors, independent
contractors and suppliers to be employed under the Contract. If the County has a reasonable objection
to any such contractor or supplier, it shall notify the bidder or proposer and the bidder or proposer
may then: (a) withdraw his bid or proposal; or (b) substitute an acceptable contractor or supplier. If
required by the Bid or Contract Documents, subcontractors may be required to submit a Contractor's
Qualification Statement.
d. Bids/Proposals by corporations must be executed in the corporate name by the president or a vice-
president (or other corporate officer accompanied by evidence of authority to sign) and the corporate
seal must be affixed and attested by the secretary or an assistant secretary. The corporate address and
state of incorporation shall be shown below the signature.
e. Bids/Proposals by partnerships or limited liability companies ("LLC") must be executed in the
partnership or LLC name and signed by a partner authorized LLC officer, whose title must appear
under the signature and the official address of the partnership or LLC must be shown below the
signature. The State in which the entity was formed and whose law governs the entity shall be shown
below the signature.
f. All names must be typed or printed below the signature.
4. a. Bidder/Proposer acknowledges that this bid or proposal is solicited and submitted subject to the
requirements of the "Pitkin County Procurement Code," (Section 8.5 of the Pitkin County Home Rule
Charter; Resolution No. 82-37, April 12, 1982, copies available upon request for a nominal charge).
As such, the Bidder or Proposer agrees to comply with all applicable requirements of said
Procurement Code relating to bidding, contract drafting, contract administration and ethics. The
requirements of the Procurement Code are incorporated herein by this reference.
b. The bidder/proposer shall immediately notify the County Manager in writing of any violation of said
Code by the County's employees or agents, which violation is known or should have been known by
bidder/proposer, and failure to so notify the County of violations within five (5) days of knowledge of
such violations shall disqualify the bidder/proposer from award of the Contract being bid or proposed
and shall be deemed as a waiver of any action or defense that the bidder/proposer may have against
the County by reason of such violation of the Procurement Code.
C. The submission of a bid or proposal shall be conclusive evidence and legal admission that the bidder
or proposer: (1) has no questions, complaints or objections in connection with the Bid or Proposal
process and/or documents, subject to any requests made by Bidder for amplification, clarification,
explanation, interpretation or correction pursuant to Paragraph 2.a. and 2.c., above; (2) has no
questions, complaints or objections as to the completeness, sufficiency, scope or detail of the
Bid/Proposal Documents; and (3) has full knowledge of the scope, nature, quality and quantity of
work to be performed, the detailed requirements of the bid or proposal documents including any and
all contract documents and required clauses and the plans and specifications, the site and conditions
under which the work is to be performed, the Pitkin County Procurement Code, and applicable Colo-
rado law.
5. a. All bids or proposals will be opened and read in public. No bids may be withdrawn after the
beginning of the public opening. The County, in its sole discretion, may delay a bid/proposal opening
for no longer than two (2) business days if weather or other circumstances beyond control of
bidders/proposers results in delay in receipt of bids/proposals. Bids/proposals may be withdrawn at
any time prior to the beginning of the public opening or modified by a document executed and
delivered in a form substantially similar to the Bid/Proposal Form prior to opening.
b. All bids/proposals submitted must be valid for a minimum period of sixty (60) days after the date of
the bid/proposal opening. During this time, bids and bidders are investigated, evaluated,
recommended and submitted to the Board of County Commissioners for final approval.at a regular
meeting.
6. a. Bids/Proposals will be awarded to the lowest responsible and responsive bidder/proposer complying
with the terms, conditions, guidelines, selection criteria, plans and specifications presented in the
Invitation To Bid, Request For Proposals, and these Instructions. All rights are reserved by the
.County to determine, in the County's sole reasonable discretion, whether the Bid/Proposal meets the
needs or purposes intended and is within the project budget.
b. Although price may be a major consideration in the award of contract, the County does not award on
prices alone. The County also considers the quality of product as judged by the County; past experi-
ence with same bidders, subcontractors, products or suppliers; qualifications of the bidders and/or
subcontractors or suppliers; services offered; warranties; maintenance considerations; long-range
costs; delivery; and similar considerations, all as specified in detail in the Project RFP.
C. The County reserves the absolute right to conduct such investigations as it deems necessary to assist in
the evaluation of any bid/proposal and to establish the experience, responsibility, reliability,
references, reputation, business ethics, history, qualifications and financial ability of the
Bidders/Proposers and proposed subcontractors and suppliers. The purpose of such investigation is to
satisfy the County that the Bidder/Proposer has the experience, resources and commercial reputation
necessary to perform the work and support any warranties in accordance with the Contract Documents
in the prescribed manner and time.
d. The County, at its sole discretion, may require the apparent successful Bidder/Proposer to
demonstrate, at a place and time designated by the County, that the bid or proposal meets the
performance criteria specified, or to otherwise provide documented proof from independent reliable
sources acceptable to the County that said performance criteria will be met prior to final acceptance of
the bid or proposal. The burden of proof of such a demonstration is on the Bidder or Proposer. In the
event that the apparent successful bidder/proposer fails to demonstrate or provide acceptable proof of
meeting required performance criteria, that bid/proposal will be rejected and the next eligible bidder in
the selection ranking will be invited to participate in the same process until a bid or proposal meeting
performance criteria is found within the ranking of eligible bidders. The County reserves the right to
reject any or all bids or to otherwise accept the bid which in the County's sole discretion is in the best
interest of the County.
e. Pitkin County reserves the right, if it deems such action to be in the best interests of the County, to
reject any and all bids or proposals or to waive any irregularities or informalities therein. Any
incomplete, conclusionary, false or misleading information provided by bidder/proposer shall be
grounds for rejection of the bid or proposal. If bids or proposals are rejected, the County further
reserves the right to investigate and accept the next best proposal in order of ranking or to reject all
bids/proposals and re-solicit for additional bids or proposals.
f. Any questions or disputes involving the documents or procedures not covered by these Instructions or
other bid/proposal documents, shall be resolved by the above-named project manager on the basis of
faimess, custom in the industry, maximization of competition and best interests and convenience of the
County.
7. Issuance of Notice Of Award, execution of Contract Documents and issuance of a Notice To Proceed shall be
as specified in the Contract Documents and subject to approval by the Board of County Commissioners.
8. Contracts will be executed on standard Pitkin County Contract documents including the County's "Required
Clauses" and/or by separate agreement with the bidder/proposer. Copies of any applicable standard forms
are included with he bid documents. The County reserves the right to negotiate with the bidder/proposer for
contract terms not specified in the Bidding Documents.
9. If the contract awarded as a result of a bid/proposal extends beyond the calendar year, nothing herein shall be
construed as an obligation by the County beyond any amounts that may be, from time to time, appropriated
by the County on an annual basis. It is understood that payment under any contract is conditional upon
annual or supplemental statutory appropriation of funds by said governing body and that before providing ser-
vices, the Proposer, if he/she so requests, will be advised as to the status of funds appropriated for services or
materials and shall not be obligated to provide services or materials for which funds have not been appropri-
ated.
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