HomeMy WebLinkAboutbocc.con.184.2007CLERK'S CHECK LIST
FOR CONTRACTS SUBMITTED TO CLERK AND RECORDER FOR
SCANNING/ARCHIVING
CONTRACT #: 1s4-2oo7
Originating Department/Division: Airport
Contact Person: David Ulane Phone #: 429-2853
Project Name: Advantage Rent-A-Cat off Airport lease Agreement
^ BOCC AGENDA ITEM ®STAFF AUTHORIZED SIGNATURE
(nOCC signature required) (per Revised Procurement Code 7/2005)
Check procurement type:
^None ^Informal ®Formal ^Sole Source ^Emergency ^State Bid ^
Check Contract Tyae:
Dollar Amount: N/A
^ Services/Maintenance
^License/Use
®Lease
^Construction
^Goods, Equipment, Supplies
^Other (e.g. revenue)
Budget Liue Item/Ledger Number 404.67.00000.65039
^Employment (for county employees)
^Intergovernmental Agreement (Requires BOCC Action)
^Non-Profit
^Quasi-Public
^Grant Agreements (Requires BOCC Action)
^Change Order/Contract Amendment
Contractor/Business Advantage Rent-A-Car
Contract Execution 12/15/2007
Automatic Renewal N
Complete Name: Marshall A Fein
Contract End Date: 12/15/2009
Term of Contract: 12/] 5/2007-12/15/2009
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 (f appropriate)
®Notice of Award/Proceed Attached (if appropriate)
^Special Instructions for Finance Department:
®Sentto Clerk and Recorder for Scanning/Archiving
®Authorized Staff Person's Name: David Ulane
BY CHECKING ABOVE AND ENTERING NAME, THE 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.
Amended 10_16_06
ens.-~"`'
I
TABLE OF CONTENTS
License and Use Agreement
Steamboat Springs Rental and Leasing, Inc. dba Advantage Rent A Car Off-Airport Lease
Agreement
Page Number
1. License of Premises ......................................................... 1
2. Operations ............................................................ 1
3. Term ............................................................................... 2
4. Payments and Security ..................................................... 2
5. Security ................................................................ 4
6. Reserved Rights of County ............................................... 4
7. Use of Premises ............................................................... 6
8. Coordination with other Airport Users ............................... 6
9. Off-Airport Rental Car Operators ...................................... 6
10. Compliance with Applicable Laws and Regulations.......... 6
11. Requirements of Licensee's Operations ........................... 7
12. Licensee Reports and Books and Records; County's Right
to Audit ............................................................................ 7
13. Environmental Quality Improvement Plan ........................ 9
14. Grievance Procedure ...................................................... 9
15. Snow Removal ................................................................ 10
16. Licensee's Personal Property/Trademarks ...................... 10
17. Indemnity ..................................................................... 10
18. Insurance ............................................................ 10
19. Assignment ..................................................................... 12
20. Relationship of Parties .................................................... 12
21. Non-Liability of County's Agents and Employees............ 13
22. Default ........................................................................... 13
23. Notices ........................................................................... 13
24. Representations of Licensee .......................................... 13
25. General Provision ........................................................... 14
26. Authority of Licensee's Representative ........................... 14
Signature Page .................................................... 15
0
LICENSE AND USE AGREEMENT
FOR
OFF-AIRPORT RENTAL CAR OPERATOR
THIS LICENSE AND USE AGREEMENT entered into this 5`h day of December, 2007 by
and between the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO,
("County"), a Colorado home-rule County, as Licensor/Permittor, and Steamboat Springs Rental
and Leasing, Inc. dba Advantage Rent A Car as Licensee or Permittee ("Company").
WHEREAS, the County is the owner, sponsor and operator of the Aspen/Pitkin County
Airport (Sardy Field), located in Pitkin County in the vicinity of Aspen, Colorado (hereinafter the
"Airport"); and
WHEREAS, the County has the authority to operate and manage the Airport, to regulate
commercial activities at the Airport and to lease and license space thereon, pursuant to, inter
olio, C.R.S. Sections 30-11-107, 30-15-401, 30-35-201/202, 41-4-101 et seq., as amended, Title
X of the Pitkin County Code, as amended and Section 8.7 of the Pitkin County Home Rule
Charter and
WHEREAS, Licensee is engaged in the business of a commercial rental car operator in
which service and business it desires to non-exclusively occupy and use in common with other
Licensees and the Public some of the Commercial Traffic Circle of the Airport and the Public
Traffic Circle for commercial purposes; and
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions
contained herein, the parties hereby agree as follows:
1. License of Premises. The County hereby grants to Company anon-exclusive, revocable
license to operate its motor vehicles upon the property of the Airport in the conduct of its off-
airport car rental agency business and to pick up and discharge its pre-booked customers at the
Commercial Traffic Circle outside the "arrivals/baggage claim" area of the terminal at the Airport
for the term and subject to the conditions set forth in this Agreement.
1.1 Company shall be permitted to pick-up by pre-arrangement with its customer and
to drop off any customer who has returned his or her rented vehicle to the Company's off airport
office, at the location of any Fixed Base Operator (FBO) facility located at the Airport where said
customers have arrived or will be departing upon General Aviation aircraft. The FBO pick-up
and drop-off shall be as directed by the fixed-base operator.
1.2 This Agreement does not authorize Company to park motor vehicles anywhere
on Airport Property. Any commercial activity not expressly authorized under the terms hereof is
expressly prohibited.
2. Operations. Operations which shall not be permitted include specifically, but are not
limited to, the following:
2.1 Company agrees that neither it nor its drivers, agents and employees shall solicit
customers on Airport premises nor engage in any activities at the Airport intended to persuade
members of the public to utilize its vehicles and/or services. Such pick-ups shall be incidental to
pre-arranged trips and pick ups by the Company.
2.2 Solicitation, either in person or by written materials (other than those specifically
approved by County), of customers in the air carrier terminal or anywhere on the premises of
the Airport.
2.3 Writing or execution of car rental contracts anywhere on the premises of the
Airport.
2.4 Storage of rental vehicles anywhere on the premises of the Airport. However, this
shall not be construed so as to prohibit rental car customers from parking their cars in
designated public parking areas on the airport during the term of their rental agreement.
2.5 Location of or permitting any customer to pick up or drop off any rental vehicle on
the premises of the Airport.
2.6 Maintenance of any rental booth, counter or other location, with or without a
Company representative on site, anywhere on the premises of the Airport. A courtesy
telephone listing at either the air carrier terminal or at any F80 premises shall not constitute a
booth or location under the terms hereof.
2.7 Parking or stopping any courtesy auto, van or limo in the Public or Commercial
Traffic Circles for any period of time other than to meet and load or drop-off any customer who
has previously contacted Company and requested a pick up or drop-off.
2.8 Any use of or occupancy of Airport property not expressly permitted by this
License is prohibited, except by separate prior written permission from the County and under
such terms and conditions as the County may require.
3. Term. The term of this License and Use Agreement shall commence on the 15'" day of
December, 2007 ,unless earlier terminated as provided herein and is set to expire mid-night the
15`" day of December, 2009.
4. Payments and Security.
4.1 County Charges. Company shall pay to the County a sum equal to ten percent
(10%) of all Company's adjusted gross revenues attributable to motor vehicle rentals to the
Airport customers. The fee shall be paid to County by the Twentieth (20`") day of the month for
the preceding calendar month. This percentage may be adjusted by the County no more than
annually.
4.2 Gross Revenues. "Gross revenues" or "gross receipts" shall mean all amounts
received by Licensee, or which Licensee is entitled to receive, for the rental of motor
vehicles from transactions on, from or through the Airport Location or to persons who
have deplaned at the Airport and for all other services and activities performed by
Licensee in, at, upon, from or through the Airport in connection with its rental car
concession and service area operating privileges on the Airport including, without
limitation, daily fees, mileage charges, ski racks, navigation units, car seats, refueling
charges and all revenue not specifically excluded herein. Gross revenues or gross
receipts to the Licensee shall be deemed received at the time the sales, lease or
service transaction occurs giving rise to Licensee's right to collect said monies,
regardless of whether said transaction was conducted in person, by telephone,
electronically, by mail or by any other method of information transmission, whether the
transaction was for cash or credit, and of for credit, regardless of whether the Licensee
ultimately collects the monies owed for said transaction from the customer involved.
Any gross revenues or gross receipts included in the formula for determining
percentage fees owed the County and determined by Licensee at a later date to be
uncollectible shall not offset future percentage fees owed the County. If the initial
rental car contract entered into between Licensee and a rental car customer is
subsequently amended, solely because the customer's actual time and mileage usage
contemplated by the original contract, and the charges to be paid by the customer are
therefore different from the charges contemplated by the original contract, the
percentage of gross revenues that the County is entitled as fees hereunder shall be
based upon the gross revenues that the Licensee actually receives or is entitled to
receive, under the amended rental car contract with its customer.
Gross revenues or gross receipts shall not include:
a. Federal, state or municipal sales tax, and CFCs separately stated and
collected from customers:
b. Amounts Licensee receives, or is entitled to receive, for charges for
insurance coverage, including but not limited to, personal accident
insurance, personal effects insurance and collision damage waiver
charges;
c. Amounts Licensee receives, or is entitled to receive, for the sale,
disposition, loss, conversion, or abandonment of Licensee's used
motor vehicles and other equipment, personal property, and trade
fixtures not in the normal course of the commercial rental car business
permitted hereunder;
d. Amounts which Licensee receives, or is entitled to receive, for the
repair of damages to its motor vehicles;
e. Amounts received for incidental safety related services (child safety
seats, handicap operating equipment, special tires, etc.), so long as
the fee to the customer for such services is reported to the County
and bears a reasonable relationship, in the reasonable discretion of
the County, to the cost of providing the safety related services; and
f. Amounts Licensee identifes as point-of-sale discounts, refunds or
customer service adjustments, as long as such discounts, refunds
and adjustments of a written Licensee business policy for such
discounts, refunds or customer service adjustments, which policy is
approved in advance by the County.
g. All revenues excluded under this paragraph shall be reported to the
County and subject to verification and audit as provided herein.
4.3 It is not the intention of the parties hereto that the County shall get or control the
price of any service offered by Licensee to its customers; but rather to prevent the Licensee
from diverting income from basic car rental fees to accessory or incidental fees.
4.4 Monthly Reports. Company shall submit monthly reports of its adjusted gross
receipts for the preceding month, including number of its customers from the Airport by the 20`h
day of each month. If Company has conducted no business activity during the preceding
calendar month, it must report that fact by the fee due date. Even if no activity is generated
during that month a failure to report will result in a $150.00 penalty plus any monies owed
including late fees.
4.5 Payments. No payment shall be due the first month of the term, and payment for
the last month of the term will be due no later than December 20`", 2009. All payments shall be
made to the Aspen/Pitkin County Airport, 0233 E. Airport Road, Suite A, Aspen, Colorado
81611.
4.6 Delinquent Accounts. All payments hereunder shall be considered delinquent if
not received by the last business day of the month due. All delinquent amounts shall accrue
interest on the entire unpaid and delinquent balance at the rate of two percent (2%) per month.
Default interest shall be immediately due and payable, along with the delinquent principal, within
ten (10) days after written demand. Amounts received shall be credited first to any accrued
interest, delinquent principal and then to current payments due.
4.7 Company Accounting and Annual Statement. For the purpose of ascertaining
the amount payable as herein provided, Company shall keep an accurate account of all daily
sales and revenues made by Company in, on, or from the Airport, the same to be entered into
book of a permanent nature which shall be available to the County for its inspection upon
demand.
Within sixty (60) days after the end of each calendar year, Company shall furnish
to County an annual statement of its Adjusted Gross Receipts generated during the preceding
calendar year, the accuracy and completeness of which statement shall be attested under oath
under penalty of perjury by an officer of Company. Failure to do so will result in a $500.00
penalty plus any monies owed and late fees as estimated in this agreement.
4.8 Audit. The County reserves the right to audit Company's statements, books and
records, including examination of the general ledger and all other supporting material, including
tax returns, at any reasonable time during business hours, verifying the Adjusted Gross
Receipts. If the audit establishes that Company has understated or overstated the Adjusted
Gross Receipts by $500.00 or more, the entire expense of said audit shall be borne by
Company. Any additional payment due from Company shall forthwith be paid to the County,
with interest thereon at 2 percent (%) per month from the date such amount originally became
payable to the County. Any overpayment by Company shall be credited against further
payments due to the County.
5. Security. To secure the monthly payment obligation, Licensee agrees to provide and
County agrees to accept certified funds made payable to the County in the Amount of Three
Thousand Dollars ($3,000.00).
If County shall receive payment from the Security Deposit, such amount shall be
credited to amounts owed to County by Licensee.
Immediately after County receives payment from the Security Deposit, Notice shall be
given to Licensee of payment. Licensee shall furnish County with another deposit of identical
terms and amount within fve (5) days receipt of this Notice. Failure to provide an identical
replacement deposit shall constitute a default of this Agreement.
Nothing herein shall imply that the amount of Three Thousand Dollars ($3,000.00)
constitutes liquidated damages for default of this Agreement.
6. Reserved Rights of County. County reserves the following rights with respect to the
Premises and the uses and operations to be conducted thereon by Licensee.
6.1 County reserves the right to unimpeded access over and across the Commercial
Traffic Circle and Public Traffic Circle; provided, that County shall not, in the exercise of this
reserved right, unreasonably interfere with Licensee's use of same. County shall be entitled to
enter upon those areas, in a reasonable time and manner consistent with the purpose of the
entry and inspection, for the purpose of inspecting the same, preventing waste or loss, respond-
ing to emergencies or complaints or enforcing any of County's rights hereunder.
62 County reserves, for the use and benefit of the public, the right of flight for the
passage of aircraft in the air space above any portion the surface of the Airport in which
Licensee has been granted rights hereunder, together with the right to cause in and around said
air space such noise as may be inherent in the operation of aircraft utilizing the Airport.
6.3 County reserves the right to direct, in its sole discretion, all activities of the
Licensee at the Airport in the event of an emergency.
6.4 County reserves the right to grant leases, licenses, uses, permits or rights to
other parties to operate on the Airport so long as such other grants do not unreasonably
interfere with Licensee's operations.
6.5 The County reserves the right to direct, in its reasonable discretion, Licensee's
operations in the event that Licensee's operations are unreasonably interfering with the use by
others of the Airport; e g„ to restrict the use of "public" areas of the Air-Carrier Terminal and
public-access curbs, sidewalks and roadways in favor of the traveling public.
6.6 County reserves the right to establish and enforce reasonable rules and regulations
for the conduct of activities and uses permitted herein. County reserves the right to further plan,
develop, improve, remodel and/or reconfigure the Airport, including existing vehicle and
pedestrian traffic patterns, as County deems appropriate, without interference or hindrance by
the Licensee, and County shall have no liability hereunder to Licensee by reason of any
interruption to Licensee's operations on the Premises occasioned by such County activities;
provided, however, that County shall consult in advance with Licensee on such changes and if
Licensee shall be unable to conduct reasonably normal seasonal business operations on the
Premises by reason of any such County activities, then the fees hereunder shall be equitably
adjusted during the period of such interruption.
6.7 The County reserves the right, in its sole discretion, to enter into agreements for
the financing or re-financing of the Airport, and Licensee agrees to cooperate in providing
information to prospective lenders and in providing estoppel certificates, if so requested. Not
withstanding Section 4, such information provided by the Licensee shall be limited to certified
financial statements of gross revenue or receipts paid to the County under the terms of this
Agreement.
6.8 County reserves the right to prohibit any commercial or non-commercial activity
by Licensee, its agents and employees on the Airport, which activity is not expressly permitted
herein.
6.9 County reserves the right to establish and enforce reasonable rules and
regulations for the conduct of activities and uses permitted herein.
6.10 County reserves the right to further plan, develop, improve, remodel and/or
reconfigure the Airport, including the Premises and existing vehicle and pedestrian traffic
patterns, as County deems appropriate without interference or hindrance by the Lessee, and
County shall have no liability hereunder to Lessee by reason of any interruption to Lessee's
operations on the Premises occasioned by such County activities; provided, however, that
County shall consult in advance with Lessee on such changes. Additionally, possibility of
terminal and airfield closures due to construction, security or bad weather might occur. Good
faith efforts will be attempted by Pitkin County to minimize the effects on the operations.
7. Use of Premises. Any occupancy, use, activity, display or product not specifically per-
mitted herein shall be and is hereby prohibited, except as by separate prior written permission
from the County and under such terms and conditions as the County, in its sole discretion, shall
determine.
8. Coordination with other Airport Users. County and Licensee acknowledge that each has
rights and obligations arising from various third-party agreements with other Airport users.
County and Licensee agree to cooperate with each other to effectuate these third-party
agreements, so long as such agreements are not illegal, impossible or do not unreasonably
interfere with Airport operations or the rights and obligations of the various parties including
Licensee. County and Licensee acknowledge their respective obligations as signatories under
the following agreements with on-airport rent-a-car; air carriers; the full-service fixed base
operator; commercial ground transportation operators; or any other agreements as the County
may amend or enter into from time to time in the normal operation of the Airport.
9. Off-Airport Rental Car Operators. The County reserves the right, but shall not be
obligated, to permit other rental car companies, with whom the Airport has not executed on-
Airport License and Use Agreements, to enter upon the Airport in general, and the Air-Carrier
Terminal in particular, to pick-up and drop-off their customers, to purchase advertising space on
the Airport and within the Air-Carrier Terminal, and to establish a courtesy phone system on the
Airport and within the Air-Carrier Terminal, all subject to fees and charges in common with other
users of that classification.
10. Compliance with Applicable Laws and Requlations. In connection with its use of the
Premises and the conduct of its operation thereon, the Licensee shall comply with all federal,
state and local laws, ordinances and regulations.
10.1 Commercial Operator, and its employees, contractors and agents, shall observe
the Pitkin County Airport Rules and Regulations, including but not limited to the Ground
Transportation Rules and Regulations, as they exist on the date hereof and as they may be
modified from time-to-time.
Present applicable Airport regulations are as follows:
10.1.1 Airport Regulations, Title X, Pitkin County Code;
10.1.2 Airport Certification Manual with Airport Emergency Plan, inclusive;
10.1.3 Airport Security Program;
10.1.4 Ground Transportation Rules and Regulations;
10.2 Comply with the notification and review requirements of Part 77 of the Federal
Aviation Regulations in the event any future structure or building is planned for the Premises, or
in the event of any planned modification or alteration of any present or future structure or
building situated on the Premises.
10.3 Not discriminate against any person or class of persons by reason of race, color,
sex, creed, religion, handicap or national origin in providing any services or in the use of any
facilities provided for the public in any manner prohibited by Part 21 of the Regulations of the
Office of the Secretary of Transportation, and shall comply with the letter and spirit of the
Colorado Anti-Discrimination Act of 1957, as amended, and any other laws and regulations
respecting discrimination in unfair employment practices, and shall comply with such
enforcement procedures as any governmental authority might demand that the County take for
the purpose of complying with any such laws and regulations.
10.4 With reasonable advance notice, pay all taxes lawfully assessed against
Licensee by reasons of Licensee's use and occupancy of the Airport in the conduct of
Licensee's business thereon.
10.5 With respect to the parking regulations of the City of Aspen and the Town of
Snowmass Village, Licensee agrees:
10.5.1 To distribute with each rental car contract an official parking information
brochure that is published and provided free of charge to Licensee by the City of Aspen and/or
the Town of Snowmass Village.
11. Requirements of Licensee's Operation. It is of primary importance to the County that, in
the conduct of Licensee's use of the Airport facilities, Licensee provide off-airport rental car
services of highest quality to users of the Airport commensurate with off-airport rental car
operations of this size and traffic volume at first-class U.S. destination resort locations. To this
end, Licensee agrees to provide adequately-trained, safety conscious, environmentally-
sensitive, helpful and courteous personnel; suffcient rentable vehicles and necessary
equipment and supplies; and conduct safe and efficient manner all traffic on the Airport.
11.1 Licensee hereby warrants and represents that in the conduct of its commercial
automobile rental business within Pitkin County, it shall at all times maintain full compliance with
the applicable provisions of the Pitkin County Code, including specifcally the Land Use Code.
Upon a determination by the County that Company does not have all necessary and appropriate
permits and approvals required by the Land Use Code for the operation of its business,
Company shall be deemed in substantial breach of its obligations hereunder.
12. Licensee Reports and Books and Records County's Riqht to Audit. The rights and
obligations of the parties with respect to Licensee's reports and books of account are as follows:
12.1. Licensee shall file the following reports:
12.1.1. At the same time that Licensee is obligated to pay its monthly
percentage of gross receipts herein, Licensee shall provide the Director of Aviation with an
itemized statement showing the gross amount of revenues or receipts for all car rental
transactions at its Pitkin County location Licensee enjoyed during the preceding calendar
month, broken down by gross revenues derived from:
(a) the time and mileage and other includable revenue arising from the
rental of motor vehicles; and
(b) the time, mileage and other includable revenue arising from the rental
of all motor vehicles that is attributable to Airport customers during said month. Said statement
shall be signed and certified as complete and correct by an official of Licensee authorized to so
certify.
12.1.2. Licensee shall file a report identifying all courtesy vehicles (by vehicle
make, model, VIN, and license number) to be operated at the Airport.
12.1.3. At the beginning of this term and promptly updated as often as such
forms are changed by Licensee, a sample copy of all Licensee's rental contact form(s) in use.
12.1.4. Annually, within thirty (30) days after the end of every operations year, at
the expiration of the License term and upon assignment of Licensee's rights hereunder,
Licensee shall file a statement of gross revenues or gross receipts reportable under this
Agreement, which report shall be prepared, signed and certified as correct by a corporate officer
of Licensee; or Licensee shall provide that all revenues and receipts reportable under this
Agreement shall be first deposited in a bank account located in a chartered financial institution
within Pitkin County, Colorado.
Licensee shall maintain full and accurate books of account and records from
which "gross revenue" and "gross receipts," as defined herein, the amount and nature of all
business transacted on or thrugh the Airport and the amount of percentage rental owed the
County hereunder, particularly as it relates to all revenues or receipts attributable to Licensee's
location in Pitkin County, can be determined and verified, according to standard and accepted
accounting and auditing practices. The books of account and records that Licensee must
maintain must include, but need not be limited to, legible, true and accurate copies of all written
and electronic records and reports kept in the normal course of Licensee's business including,
without limitation, all motor vehicle rental contracts and canceled contract forms, sales slips,
cash register tapes, credit card invoices, monthly sales tax returns, sales and disbursement
journals, general ledgers, bank statements, bank books, bank deposit slips, annual federal
income tax returns, state sales tax returns and all Airport-related revenue reports submitted by
Licensee to its franchiser and all computer and/or microfilm or microfiche reproductions of the
above. These books and records shall be maintained on a current basis and shall be stored for
a period of at least thirty-six (36) months from the end of each monthly period, or for such longer
period of time as County reasonably may direct in writing. If such records are not stored within
Pitkin County, it shall be Licensee's responsibility, at its expense, to promptly make such
records, upon request, available to County, or its representatives, in a time, manner and format
to the satisfaction of the County, in its reasonable discretion.
12.2. Licensee's financial record keeping and reporting system for all business
conducted on or through the Airport or subject to this Agreement shall include, without limitation,
the following:
12.2.1. Complete, accurate and legible copies of all motor vehicle rental contracts
for all rentals attributable to Licensee's Pitkin County operations..
12.2.2. Adequate financial controls, under generally accepted accounting
principles and auditing standards, to ensure complete and accurate recording and reporting of
all revenues, including commissionable revenues.
12.2.3. Daily, weekly or monthly reports identifying all motor vehicles (by
vehicle make, model and license number), available for rental or rented on or through the
Airport for those periods throughout the term of this Agreement.
12.3.4. Any other document or procedure which, in the reasonable
discretion of the County, is necessary or useful to determine or verify Licensee's obligations
hereunder. Such new documents or procedures shall be used or instituted a reasonable time
after written notice thereof has been sent by the County to Licensee.
12.3. The County, annually, at the end of the term herein and upon a request by
Licensee of assignment of its rights hereunder, unless expressly waived by the County, may
conduct audits of Licensee's books of account and records, which audits shall be conducted
upon reasonable notice, but not less than five (6) days advance written notice, to Licensee and
during Licensee's normal weekday business hours. For purposes of this License and Use
Agreement, the annual audit period shall be deemed to commence on June 1 of each year of
the Agreement and to conclude on May 31 of the ensuing year.
In performing said audits, County shall be entitled to review, and Licensee shall
be obligated promptly to provide to the County upon demand therefor, all of the books of
account and records that Licensee is obligated to maintain pursuant hereto, as well as other
records, documents and files in Licensee's possession, custody or control during the term
hereof that the County, or its auditor, determine, in their sole discretion, are useful, relevant or
necessary to determine or verify the correct amount of reportable, includable and excludable
revenues and gross receipts enjoyed by Licensee, and the correct amount of percentage rental
owed by Licensee to the County, for the period involved. Should Licensee fail to maintain the
books of account and records required to be maintained pursuant hereto, or should Licensee
fail to permit County or its auditor to review Licensee's books and records, and other documents
and fles, as required by this subparagraph, said default is agreed by the parties to be a material
breach of this License. If any audit shows percentage compensation and other fees and
charges that should have been paid to the County by the Licensee pursuant to this Agreement
were understated or underpaid for any period involved, Licensee shall, within thirty (30) days
notice by County of and such deficiency, pay to the County the full amount underpaid, plus two
percent (2%) interest per month, calculated as provided above, on such underpayment from the
time said underpayment should have been paid to the time said underpayment is fully paid. If
the amount of underpayment exceeds exactly one percent (1 %) of the total percentage
compensation that was owed by Licensee to the County for the period involved, Licensee, in
addition to paying the County the underpayment owed and interest accrued thereon, shall within
thirty (30) days' written notice by County reimburse the County for the cost of the audit not to
exceed fifteen hundred dollars ($1500.00). If the audit discloses overpayment of the
percentage compensation paid to the County by Licensee, the County shall refund the amount
of overpayment to Licensee within thirty (30) days of said audit.
The County shall hold all information obtained from any such audit in confidence, except
as may be necessary to enforce the County's rights under this Agreement, except with respect
to tax proceedings, and except with respect to any legal requirements or Court Order to disclose
said information.
12.4 Prior to the approval by the County of assignment or transfer of any financing,
equity or operational interest in this License or Licensee of 5% or greater, excluding publicly
traded stock, the County shall be entitled to a gross revenue audit as provided hereinabove at
the sole expense of the Licensee.
13. Environmental Quality Improvement Plan (EQIP).
13.1. Pitkin County's stated goal is to plan for and continually reduce environmental
degradation caused by rental car operation in areas including, without limitation, pollution by
CO, CO2, CFCs, particulates, other internal combustion engine emissions, traffic congestion,
gasoline consumption and fillage fumes, and car wash waste water.
It is the express intention of the BOCC that all County Lessees, Licensees and
Permittees (LLPs) including specifically rental car operators, strictly comply with all
environmental rules and regulations and be sensitive to all present and future environmental
issues. The County gives notice that environmental compliance and sensitivity to environmental
issues are and will be substantial factors in future performance reviews and procurements.
13.2. Licensee shall diligently accomplish and/or comply with Airport Environmental
Quality Improvement Plan (EQIP) regarding its vehicles used on the Airport premises as follows:
13.2.1. Promptly after the execution of this Agreement, Licensee agrees to
institute the following:
13.2.2.1. No cars in control of Licensees' employees during all of its
operations, including washing, fueling and moving, shall be permitted to idle for longer than one
minute, but shall instead be turned off and restarted.
14. Grievance Procedure. The parties each recognize that it is in the public interest and to
their mutual benefit that a satisfactory range of rental car operation services be made available
to the public in a prompt, efficient and courteous manner. To that end, Licensee and County
shall meet together from time to time, upon written request of County, for the purpose of
addressing any complaints which may have been received by County and reviewing in general
the services being furnished by Licensee related to its Airport activity. Licensee agrees to
promptly undertake such action as may be reasonable and appropriate to remedy the situation
giving rise to any such complaints and/or any operational deficiencies noted by County.
15. Snow Removal. County shall, at County's own expense, and subject and secondary to
County's obligation to maintain clear public roads and runways on the Airport, remove the snow
from those areas of the Premises which are open to public use and which are utilized for the
passage of motor vehicles in the same manner, sequence and extent as County performs snow
removal on portions of the Airport in general; provided, that County shall not be required to
move or relocate parked vehicles to accomplish such snow removal.
16. Licensee's Personal PropertV~Trademarks. Licensee represents that it is 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
alleged or made by a third party for damages in connection with any actual or alleged
infringement of any patent, trademark or copyright arising from any alleged or actual unfair
competition or other similar claim arising out of the operations of Licensee under or in any way
connected with this Agreement.
17. Indemnity.
17.1 The Licensee, (including, by definition here and hereinafter, the Licensee's
employees, officers, agents, representatives, contractors and invitees) shall and hereby does
release, discharge, indemnify and hold harmless the County of Pitkin and its officials, employ-
ees, agents and representatives from and against liability for any claim, demand, loss,
damages, penalty, judgment, expenses, costs (including costs of investigation and defense),
fees (including reasonable attorney and expert witness fees) or compensation in any form or
kind whatsoever for any bodily injury, death, personal injury or property damage arising out of or
in connection with any intentional act or negligent act, error or omission by the Licensee arising
out of the operations of Licensee under or in any way connected with this Agreement, or for any
resulting liability alleged to accrue against the County on account of such acts, errors or omis-
sions; provided, however, that such indemnity shall not be construed as an indemnity for bodily
injury, death, personal injury, or property damage arising from the wholly, or in part, negligence
or intentional acts of the County or its employees.
18. Insurance
18.1 The Licensee (including, by definition here and hereinafter, its officials, employees,
agents and representatives, sub, Licensees and suppliers), shall and hereby does release, dis-
charge, indemnify and hold harmless the County of Pitkin and its officials, employees, agents and
representatives from and against liability for any claim, demand, loss, damages, penalty, judgment,
expenses, costs (including costs of investigation and defense), fees (including reasonable attorney
and expert witness fees) or compensation in any form or kind whatsoever for any bodily injury,
death, personal injury, or property damage arising out of or in connection with any negligent act,
intentional act, error or omission by the Licensee, and for any consequential liability alleged to
accrue against the County on account of the Licensee's acts, errors or omissions; provided, how-
ever, 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.
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 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.
18.3. 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 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 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:
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Statutory Workers' Compensation: Colorado statutory minimums
2. Commercial General Liability -ISO 1998 Form or equivalent
(With County named additional insured)
Each Occurrence Limit $1,000,000.00
General Aggregate Limit $2,000.000.00
Products/Completed Operations Aggregate Limit $2,000.000.00
Comprehensive Form (all risks) to include:
o Premises/Operations
o Products/Completed Operations
o Contractual Liability
o Independent Licensees and Sub/Licensees
o Broad Form Property Damage
o Personallnjury
3. Business Auto Coverage:
Combined Single Limit Liability (each accident) $1 000,000.00
Including all owned, non-owned, and hired vehicles.
4. Proof of Insurance:
i. 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 no later than ten (10) calendar days prior to com-
mencement 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. 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 Procurement Officer. (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).
Licensee agrees that if requested by the Procurement Officer or other
County official at any time during the term of this agreement, the Licensee
shall file with the Procurement Officer a certified statement as to claims
pending against the required coverages, reserves established on account
of such claims, defense costs expended and amounts remaining on policy
limits within 30 days of the request.
ii. In addition, these Certificates of Insurance shall contain the following
clauses:
a. The clause "other insurance provisions," in a policy in which
the County of Pitkin holds a Certificate, shall not apply to the County
of Pitkin.
b. 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.
c. Any and all deductibles in the above-described insurance
policies shall be assumed by and be for the amount of, and at the
sole expense of the Licensee.
d. Location of operations shall be: "all operations and locations
at which work for the referenced Project is being done."
iii. Certificates of Insurance for all renewal policies shall be delivered to
the County at least fifteen (15) days prior to a policy's expiration date except
for any policy expiring on the expiration date of this contract or thereafter.
iv. The County reserves the right to request and receive a copy of any
policy and any policy endorsement at any time during the term of this
contract.
19. Assignment. Licensee shall not, by act or operation of law, assign this License and Use
agreement, an interest herein, any right or obligation of Licensee hereunder, or a controlling
interest in the ownership or operation of Licensee's business entity, without the prior written
consent of County, which consent shall not be unreasonably withheld. In support of its right to
approve proposed assignments, the County may require, in advance of any proposed
transaction restricted hereby, Licensee to provide evidence of the successful relevant business
experience and business and financial stability of the assignee/transferee, in the County's
reasonable commercial discretion, and an audit of full payment of all costs, fees and charges to
the effective date of the proposed transaction.
For purposes of this provision, an "assignment" shall include any sale, grant,
conveyance, transfer, sublicense, encumbrance or similar transaction, however styled,
disposing of or creating rights or obligations in third parties affecting this Agreement. Examples
of transactions covered by this restriction include without limitation: any assignment for security
purposes; any assignment to or by a trustee or receiver in any federal or state bankruptcy,
receivership or other insolvency proceeding; any assignment of all or substantially all of
Licensee's assets; and the assignment, in one or a series or related transactions, of fifteen
percent (15%) or greater of the Licensee's voting stock.
20. Relationship of Parties. It is the intent and agreement of the County and the Company
that they shall have the relationship respectively of Licensor/Licensee and Permittor/Permittee
hereunder, and nothing contained herein shall be deemed or construed to constitute the parties
as partners or joint venturers, and in no event shall County be liable for any loss which may
result from the operations of Licensee upon the Premises or for any indebtedness incurred by
Licensee in the operation of its business on the Premises or for the claims of third parties
against Licensee in the conduct of its business.
In addition, County shall not be liable in any manner to the Licensee for any damages
the Licensee may incur due to the inability of the County to deliver possession of the Location,
or any part thereof, to the Licensee for reasons beyond the reasonable control of the County.
21. 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.
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22. Default. Failure to perform or comply with any of the provisions of this Agreement,
including the failure to remit any fees or charges as contained in Section 4 hereof or the failure
to make or provide reports and an accounting as required in Section 12 hereof, shall constitute
a default of this Agreement.
If any party is or becomes a debtor in a bankruptcy proceeding before any United States
District Court, either voluntarily or involuntarily, such event shall constitute a default of this
Agreement.
If the party in default of this Agreement does not cure such default within ten (10) days
after receipt of written notice of default, the non-defaulting party may declare this Agreement
terminated and all obligations to perform hereunder at an end. Declarant of termination of this
Agreement shall be given to the opposite party. The date of termination shall be fixed as the
expiration of ten (10) days after receipt of written notice of default.
At the termination of this Agreement, all fees, charges and other remittances, which are
unpaid shall become immediately due and payable. All accounts and remittances not paid at
the termination of this Agreement shall accrue interest at the rate of two percent (2%) per
month.
23. Notices. All notices required or authorized to be given hereunder shall be in writing and
shall be served upon the party entitled thereto by certified mail, return receipt requested,
addressed to such party at its address appearing on the signature page of this License , or at
such other address as either party may so notify the other party of in writing. Any such notice
shall be deemed to have been received on the date so delivered personally to the party entitled
thereto or three (3) business days after the same has been properly deposited in the United
States mail, with postage thereon fully prepaid, as aforesaid.
24. Representations of Licensee. Licensee represents and warrants to County as follows:
24.1. Licensee, and those individuals executing this License on behalf of Licensee,
represent and warrant that they are familiar with section 18-8-301, et sec . of the Colorado
Revised Statutes (Bribery and Corrupt Influences) and Section 18-8-401, et seg. of the
Colorado Revised Statutes (Abuse of Public Offce) and that no violations of the provisions
thereof are present.
24.2. Licensee, and those individuals executing this License on behalf of Licensee,
represent and warrant that to the best of their knowledge no employee of Pitkin County has
personal or beneficial interest whatsoever in this License or in the business to be conducted
upon the Premises by the Licensee.
25. General Provisions.
25.1. This License contains the entire agreement of the parties and there have been
no oral or written promises, representations or agreements, either express or implied, except as
expressly set forth herein. Any and all prior agreements or understanding between the parties
are expressly agreed to have merged herein.
25.2. 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.
25.3. 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 hislher designee in writing;
provided, however, that all matters affecting material terms of this Agreement, including term,
fees and charges and use of Location by Licensee, shall only be amended by a writing
approved by a Resolution of the Board of County Commissioners at aduly-noticed public
meeting.
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25.4. The failure of either party hereto to exercise any right or remedy hereunder shall
not be deemed a waiver thereof or a waiver of the right to exercise the same at any future time,
or the waiver of any other right or remedy hereunder. No waiver by either party of any right or
remedy hereunder shall be effective unless in writing signed by the party.
25.5. The parties agree that this Agreement was negotiated by the parties hereto
mutually, that each has had adequate opportunity to review this Agreement and to consult with
legal and other counsel, and agree that no legal presumption shall arise as a result of the
identity of the drafter of this Agreement or any presumed unequal status arising therefrom.
25.6. If either party to this Agreement incurs attorney's fees and/or costs in connection
with the declaration of a Default hereunder or any other legal proceeding to interpret, protect or
enforce any of its rights hereunder, the party prevailing in such proceeding shall be entitled to
recover its reasonable attorney's fees and costs in connection with such proceedings.
25.7. 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, Colo-
rado.
25.8. This License shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, successors and assigns.
25.9. This License shall be executed in duplicate originals, with one original to be held
by each party.
26. Authority of Licensee's Representative. As an inducement to the County to execute this
Agreement, the undersigned representative of Licensee represents that he/she is expressly
authorized to execute this Agreement and to bind Licensee to the terms and conditions hereof
and acknowledges that the County is relying on this representation, authorization and
execution.
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IN WITNESS WHEREOF, the parties have executed this Agreement, as follows:
County:
FOR THE BOARD OF COUNTY
COMMISSIONERS OF
PITKIN COUNTY, COL DO
Jame ~ Elwood, A.A.E.
~irec r of Aviation
Licensee:
STEAMBOAT SPRINGS RENTAL AND LEASING
Inc. dba ADVANTAGE RENT A CAR
6660 First Park Ten Blvd. Suite 116
San Antonio, TX 78213
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