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HomeMy WebLinkAboutresolution.council.100A-09RESOLUTION #~~~ (Series of 2009) A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND THE UTE MOUNTAINEER SETTING FORTH THE TERMS AND CONDITIONS REGARDING THE NORDIC CENTER AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and The Ute Mountaineer, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that lease agreement between the City of Aspen, Colorado, and The Ute Mountaineer regarding the Nordic Center at the City of Aspen Golf Course, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: /~_~ /~ L6~~~i~r~~!/ ~~~_ ~'~/L? :a ~O; Michael C/Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held December 7, 2009. Kat S. Koch, City Clerk AGREEMENT FOR TIIE LEASE AND OPERATION OF THE NORDIC CENTER AT THE CITY OF ASPEN GOLF COURSE THIS AGREEMENT entered into at Aspen, Colorado, this ~~ day of l~ -!y/.~%r , 2010, by and between the CITY OF ASPEN, COLORADO, a municipal corporation and home-rule city ("hereinafter "City"), and THE UTE MOUNTAINEER, INC., a Colorado corporation (hereinafter "Operator"). WITNESSETH: WHEREAS, the City is the owner of the Aspen Championship Golf Course and golf club house in Aspen, Colorado, and desires to contract with an operator to provide certain services during the winter seasons for the operation of a nordic center at the building commonly known as the golf club house building, hereinafter referred to as the "Premises"; and WHEREAS, Operator now operates a retail sporting goods shop in Aspen, Colorado, has experience in managing ski rental operations and cross-country ski instruction and desires to contract with the City to provide the above-described services; and WHEREAS, Operator has agreed to provide certain services relative to the winter use of the golf course, as well as provide services regarding the general operation of the nordic center; NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions contained herein, the parties agree as follows: 1. Term. City hereby grants Operator the exclusive right to use the Premises for the period of November 1, through April 1, of each calendar year beginning on November 1, 2010, and extending through April 1, 2015. 2. Premises. The Premises subject to this Lease Agreement shall be the approximately 2,555 square feet of offices, restrooms/locker rooms, storage rooms, repair room and open area space located within the building commonly known as the golf pro shop building and further described in Exhibit "A" which is attached hereto and incorporated herein by this reference. 3. Use. The Premises may be used by Operator solely for the purpose of operating a nordic center and providing services related thereto, including, but not limited to, retail sales of nordic skiing equipment, clothing and supplies, for renting nordic skiing equipment to the public, for storage facilities, for use as a nordic center, for nordic skiing lessons, for any and all uses reasonably attendant to nordic skiing. Operator shall not use the Premises for any other purposes without the City's written consent. Operator's use and occupancy of the above-described Premises shall comply with the rules, regulations and ordinances of any governmental authority having jurisdiction over the Premises or the activities performed thereon. Additionally, Operator shall not use the Premises in any manner that will create an increase in the rate of insurance or a cancellation of any insurance policy, even if such use may be in furtherance of Operator's retail sales. Operator shall not keep, use or sell anything prohibited by any policy of fire insurance covering the Premises. Operator agrees to cooperate with the City in determining the storage needs the City during the winter season and to reasonably accommodate such needs provided that any such accommodation does not interfere with Operator's rights hereunder. 4. Time of Occunancy. Acceutance and Surrender of Premises. Operator shall be entitled to use and occupy the Premises during the winter skiing season as set forth at Paragraph 1 herein. Occupancy of the Premises by the Operator shall be construed as recognition that the Premises are in a good state of repair and in sanitary condition. Operator shall surrender the use and occupancy of the Premises on or before April 1. (The April 1 date is an approximate date for move out. Associated spring weather will determine actual move out date. Move out date could be earlier or later than April 1 depending upon golf course or Nordic track conditions.) The provision herein for use and occupancy of the Premises may be varied on written understanding of the parties. Operator shall coordinate with the City to insure change in possession is orderly and timely in accordance with the agreement with the City. A representative of the City shall inspect the Premises at the end of each season's occupancy both summer and winter, with a representative Ute Mountaineer, Inc. to assess if any repairs are necessary and who shall be responsible for them. herein. 5. Rent. Operator agrees to pay six percent (6%) of all gross revenues as defined i) Operator shall pay his first installment of percentage rent on or before the fifteenth (15th) day of the calendar month immediately after the one in which the percentage rent became effective, and thereafter it shall pay the required percent of each month's sales by the fifteenth (15th) day of the following month. Operator shall also submit to City an itemized statement of gross sales (as defined below) and sales tax report for the preceding month on or before the fifteenth (15th) day of each calendar month during the term of this Lease and any renewal, extensions, or holding over hereunder. ii) In addition, within thirty (30) days after the end of each Lease Year (November 1 through November 1), Operator shall deliver to City a written statement signed by a certified public accountant or by some other person acceptable to City, setting forth the amount of Operator's gross sales for the preceding Lease Year. The accountant or other person shall certify that the gross sales have been computed in accordance with the definition given below, and the statement shall be sufficiently detailed to show it was in fact prepared in accordance with such definition. If the percentage rent for the Lease Year is more than the total thereof actually paid by Operator, Operator shall pay the balance due to City within thirty (30) days of delivery of the annual statement. iii) The term "gross sales" as used in this Lease Agreement shall mean the full amount of the actual sales price of all merchandise or services sold for cash or credit in or from the Leased Premises by the Operator. The figure for gross sales will include deposits not refunded to customers, orders of any kind received or filled at the Leased Premises, receipts from vending machines located upon the Leased Premises, and any other receipts which the Operator ordinarily would credit to his business. Each credit or installment sale will be treated as a sale for the full price in the month it is made, and there will be no deductions for uncollected accounts or bad debts. The following items, if applicable, shall be deducted from gross sales: 1) refunds or customer discounts included in gross sales; 2) returns to shippers and manufacturers; 3) sales of trade fixtures or operating equipment; 4) sums received in settlement of claims of loss or damage of merchandise; 5) retail sales tax recorded at the time of each sale and expressly charged to the customer; 6) postage charged to customers; and 7) co-operative advertising revenues provided by suppliers. 8) All property and sales taxes paid by Operator. iv) In operating on the Leased Premises, the Operator agrees to issue a serially-numbered duplicate sales slip, invoice, non-resettable cash register receipt, or other record approved by City, with each sale of any kind. During the term of the Lease, Operator shall keep accurate records of all his operations. These records shall conform to generally accepted accounting practices, and shall include records of gross sales and of receipts and deliveries of all merchandise. Operator shall keep all the documents relating to Operator's operations for at least thirty-six (36) months from the end of the Lease Year to which they apply. If any audit is required, or Operator and City disagree about the rent, Operator will keep its records until the audit is completed or the disagreement is settled. v) At any reasonable time, and following at least twenty-four (24) hours notice in writing to Operator, City or City's authorized representative may audit any of Operator's records of gross saes. If, when City audits the records for a Lease Year based on normal accounting procedures, it finds that the Operator has understated its gross sales for the Lease Year by five percent (5%) or more, Operator shall be required to pay for the audit, and shall promptly deliver to City the difference Operator owes it, plus interest on such difference at the rate of eight percent (8%) per annum from the first day of the current Lease Year to the date such difference is paid. If such audit discloses that Operator has understated his gross sales for that Lease Year by five percent (5%) or more, City shall be permitted to treat such event as a material default hereunder. In this matter, the report of City's accountant shall be binding and conclusive. 6. Access to Premises. City shall be entitled to enter upon the Premises at all reasonable hours for the purpose of inspecting the same, preventing waste or loss, or enforcing any of City's rights hereunder. 7. Duties of Ooerator Relative to Operation of Nordic Center. During the term of this Agreement the Operator agrees: a. To provide the nordic-related services described in this Agreement for each winter season for which this Lease Agreement is in effect. b. To employ and maintain for the benefit of the parties, at Operator's own cost and expense, employees of sufficient number and qualifications to operate and manage the Premises consistent with the highest professional standards of quality and courtesy. c. To perform the following general duties, at the discretion of Operator: i. Operate a ski school which will offer programs for skiers aged three through senior citizen. ii. Establish a senior citizens program. iii. Maintain a wide range rental inventory sufficient to meet the projected needs and demands of the programs offered. iv. Operate as a nordic center to provide information and to act as a clearing house for nordic activities and to coordinate with the Aspen/Snowmass nordic Council to maximize exposure and use of the nordic trail system. d. To keep full records and accounts in regard to the operation and management of the Premises, which records and accounts shall be available at the end of the winter season for inspection by the City's auditors and/or Finance Director. e. To make available for retail sale such merchandise as is commonly sold in nordic-oriented retail stores; Operator agrees to maintain an adequate inventory of such merchandise. Operator shall devote its best energies and adequate time to the promotion of sales at the Premises and may engage in similar sales at its business locations in the City of Aspen, provided such off-premises sales do no[ interfere with Operator's duties hereunder. f. To clear those decks and stairs of snow that provide reasonable access to the Premises, These areas include stairway on West Side of building leading to Nordic Shop and main stair way to front doors of clubhouse. g. Cleaning of bathroom in locker room area to be provided by Nordic shop lease holder. Cleaning of Bathrooms and foyer on upper level to be provided for by the restaurant leaseholder Wednesday,Thursday, Friday Sunday and by the Nordic Shop lease holder on Saturday, Sunday, Monday and Tuesday. 8. Duties of the City Relative to the Nordic Center. During the term of this Agreement the City agrees: a. To maintain the ski tracks and the teaching tracks on the golf course property from Thanksgiving until April 1. As Operator is largely dependent on the trail system for its revenues, should the City be unable to continue the maintenance of the trails for any reason Operator shall be released from its obligations under the lease until such time as the City is able to resume its duties in this regard. b. To permit Operator to use the Premises for Operator's sole use and occupancy with respect to its duties and privileges under this Agreement. c. To plow or arrange for the plowing of the entrance to the Premises from Highway 82 and an area adequate for parking for customers of Operator and users of the ski track courses on the adjacent golf course. Only excess snow from the golf lot may be permitted to be stored in a portion of the Golf/Nordic lot during those years when snowfall is excessive. No other snow shall be stored for removal or spring melt in this lot. d. City shall maintain and clear all paths and trails serving the Leased Premises. e. No business including the City shall store equipment or vehicles in this lot. 9. Maintenance and Renairs. Operator, at its sole expense, shall keep the Premises, including stairs and covered walkways, in a good, clean and safe condition and do all work and repair necessary to maintain same and to keep it from deteriorating, with the exception of wear and tear and aging consistent with normal use as a nordic skiing center as described herein. 10. Utilities and Security System. Operator shall pay $250.00 monthly for its share of charges for utilities that are not separately metered or contracted for separately by Operator. Those shared utilities include gas, electricity, water, sewer, and trash removal. Utilities not covered shared amount shall include telephone, cable televisions and any other utility or maintenance services used by the Operator in or about the Leased Premises during the term of this Lease, including any maintenance and cleaning fees for common areas of the building. Security System has been installed at the expense of City, but maintenance and service charges for the security system shall be paid by Operator during the time that it occupies the building. 11. Personal Property. All personal property and trade fixtures placed on the Premises shall be at Operator's sole risk and City shall not be liable for damage to or loss of such personal property or trade fixtures arising from the acts or neglect of Operator, its agents or employees. Any personal property or trade fixtures of Operator or anyone claiming under Operator, which shall remain on the Premises after the date upon which the Premises shall be surrendered shall be deemed to have been abandoned and may be retained by City as its property or disposed of by City in such a manner as City sees fit. 12. Taxes. In the event any taxes are levied and assessed upon the Premises or upon the improvements, fixtures or personal property of the Operator during the term of Operator's occupancy of the Premises or arising therefrom, or upon the leasehold or possessory interests as created through this lease, Operator shall be solely responsible to satisfy and pay all such taxes in a timely fashion. Operator shall not allow any liens for taxes or assessments to exist with respect to the Premises, except that Operator may permit such taxes or assessment to remain unpaid while pursuing any good faith contest or appeal of same. 13. Indemnification. Operator agrees to indemnify and hold harmless the City, its officers and employees, from and against all liability, claims, and demands, on account of injury, loss, or damage, including, without limitation, claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other similar loss, which arise out of or are in any manner connected with this Agreement, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the omission, error, or negligence of the Operator, any subcontractor of the Operator, or which arises out of any workmen's compensation claim of any employee of the Operator or of any employee of any subcontractor of the Operator. 14. Public Liability Insurance. Operator agrees to furnish City with certificate(s) of insurance as proof that it has secured and paid for a policy of public liability insurance covering all public risks related to the leasing, use, occupancy, maintenance, operation or location of the Premises. The insurance shall be procured from a company authorized to do business in the State of Colorado and be satisfactory to City. The amount of this insurance, without co-insurance clauses, shall not be less than the maximum liability that can be imposed upon the City of Aspen under the laws of the State of Colorado found at C.R.S. § 24-10-101 et seq., as amended. At present, such amounts shall be as follows: $150,000.00 for any injury to one person in any single occurrence; $600,000.00 for any injury to two or more persons in any single occurrence. In no event shall such insurance amounts fall below those maximum liability limits as set forth at C.R.S. 24-10-114, as amended. 15. Premises Insurance. During the full term of this Agreement, Operator, at its sole cost and expense, shall also cause all of the furniture, fixtures, and equipment in the premises to be kept insured, without co-insurance clauses, to the full insurable value against the perils of wind, storm, hail, lightning, explosion, fire and like perils. "Full insurance value" means the cost, as of the date of loss, for replacement of the damaged or destroyed property in a new condition with materials of like size, kind and quality. The insurance shall stand as primary insurance for the furniture, fixtures, and equipment in the Premises to be procured from a company authorized to do business in the State of Colorado and be satisfactory to the City. All policies as required herein shall contain a waiver of subrogation by the insurer against City. 16. Termination Due to Fire or Similar Catastrophe. If, absent negligence or fault on the part of Operator, the Premises shall be damaged by fire or other catastrophe so as to render said Premises wholly inoperable, and if such damage is so great that a competent licensed architect in good standing in Pitkin County, Colorado, as selected by the City within fourteen (14) days from the date of loss, shall certify in writing to the City and Operator that the Premises, with reasonable diligence, cannot be made fit for occupancy within ninety (90) days from the happening of the occurrence of the damage, then this Agreement may terminate and City may re- enter and take possession. Such a termination of the Agreement shall not forgive Operator's obligations to return the Premises to City in as good repair as when operator originally assumed possession thereof, regular and ordinary wear and tear excepting. Alternatively, Operator shall subordinate its rights and interests in any insurance proceeds as provided for in any insurance policy as required by this Agreement. If, however, the damage is not such as to prevent reoccupation and use of the Premises within ninety (90) days, then repairs thereto shall be undertaken by Operator with all reasonable speed to restore the Premises to its former condition and the Agreement shall remain in effect. Operator's duties and obligations to provide services and to pay rent to the City as herein set forth shall be suspended during those time periods wherein the Premises are unfit for normal business activities due to fire or other catastrophe, and/or repair activities associated therewith. 17. City to be Named a Co-Insured or Additional Insurance. Operator shall name City as co-insured or additional insured on all insurance policies and such policies shall include a provision that written notice of any non-renewal, cancellation or material change in a policy by the insurer shall be delivered to City thirty (30) days in advance of the effective date. 18. Renairs and Alterations by Operator. Operator, upon City's written consent, may, at its own expense, make reasonable and necessary alterations or improvements to the Premises. All alterations, additions and improvements shall be performed in a workmanlike manner, in accordance with all applicable building and safety codes, and shall not weaken or impair the structural strength or lessen the value of the Premises. All alterations, additions and improvements made in or to the Premises shall be the property of City and remain and be surrendered with the Premises upon termination of this Agreement. Operator agrees that prior to any construction or installation of alternations, additions or improvements, Operator shall post on the Premises in a conspicuous place a notice of non-liability for mechanic's lien as specified at C.R.S. Section 38-22-105 on behalf of the City and shall notify City of such posting and the exact location of same. Perfection of a mechanic's lien against the Premises as a result of Operator's acts or omissions may be treated as a material breach of this lease. 19. Repairs and Alterations by City. City reserves the right, from time to time, at its own expense and by its officials, employees and contractors, to make such alterations, renovations or repairs in and about the Premises, other than those noted above as required by Operator, as City deems necessary or desirable and Operator covenants to make no claim against City for any interference with its interest as herein provided in the Premises. City shall provide reasonable notice to Operator in advance of any intent to undertake alterations or repairs as authorized in this paragraph and all work shall be performed at such times as mutually agreed to between the parties so as to eliminate or minimize any disruption of Operator's business. 20. Condemnation. If during the term of this Agreement, or any renewal of it, the whole or part of the Premises, or such portion as will make the Premises unusable for the purpose leased, or the leasehold interest, be condemned by public authority, including City, for public use, then this Agreement shall cease as of the date of the vesting of title in the Premises in such condemning authority, or when possession is given to such authority, whichever event occurs first. Operator shall not be entitled to any part of any condemnation award for the value of the unexpired term of this Agreement or for any other estate or interest in the Premises, such amount belonging entirely to City. 21. Assignment of Agreement. Operator shall not assign, pledge, sublease or otherwise dispose of or encumber this lease, or the leased Premises, without the prior written consent of the City, which consent shall not be unreasonably withheld. Operator shall, likewise, not permit any third party to occupy or use the Premises absent the prior written consent of the City. 22. Signs. Operator shall not place any signs upon the Premises or upon the buildings except of such design and construction as may be permitted by City. It is understood by the parties that placement of an identification sign or signs is important and necessary to Operator's business. Any sign permitted by City shall at all times comply with applicable ordinances, rules and regulations. 23. Breach by Operator Defined. If Operator shall fail to timely comply with any of the terms or conditions of this Agreement or any notice given under it, or shall become insolvent, or shall have or attempt to make an assignment for the benefit of creditors, or if any of its property be attached and such attachment is not promptly released, or if an execution be issued against it, or, if a petition be filed by or against it, to have it adjudicated a bankrupt, or if a trustee or receiver shall be created or appointed to take charge of its assets, or if it shall abandon the Premises for a period of more than seventy-two (72) hours then at any time afterwards Ci[y may treat such act or omission as a breach of this Agreement and, at its option, enter into the Premises and remove all persons and take and retain possession thereof either with or without process of law. 24. City's Remedy for Breach. Any breach, default or failure by Operator to perform any of the duties or obligations assumed by Operator under this Agreement shall be cause for termination of the Agreement by City in the manner set forth in this paragraph. City shall deliver to Operator thirty (30) days' prior written notice of its intention to terminate this Agreement, including in the notice a reasonable description of the breach, default or failure. If within that thirty (30) days Operator shall fail or refuse to cure, adjustor correct the breach, default or failure to the reasonable satisfaction of City, the City shall have the right to declare this Agreement terminated and all rights, powers and privileges of Operator as provided through the Agreement shall cease, and Operator shall immediately vacate the entire Premises and shall make no claim of any kind against City by reason of the termination. The thirty (30) days' prior written notice shall be conclusively determined to have been delivered to Operator by the posting of same upon the main business entrance to the Premises, or at the time it is deposited in the U.S. Mail, certified, postage prepaid, addressed to the address set forth at Paragraph 29 herein. 25. Non-Waiver of Rights. Any failure by City to so terminate this Agreement as herein provided after the breach, default or failure by Operator to adhere to the terms of the Agreement shall not be deemed or constmed to be a waiver or continuing waiver by City of any rights to terminate the Agreement for any present or subsequent breach, default or failure. 26. Termination by Operator. Operator may terminate this Agreement and be relieved of all obligations hereunder by providing City thirty (30) days' written notice of its intent to terminate. Upon receipt of such notice, City may participate in the operation of the nordic center with Operator to accommodate the transition of the nordic center management from Operator to the City. Operator shall provide a full accounting of all funds, costs and equipment upon termination. 27. Non-Discrimination. Operator agrees to comply with all laws, ordinances, rules and regulations that may pertain or apply to the Premises and its use. In performing under the Agreement, Operator shall not discriminate against any worker, employee or job applicant, or any member of the public, because of race, color, creed, religion, ancestry, national origin, sex, age, marital status, physical handicap, affectional or sexual orientation, family responsibility or political affiliation, nor otherwise commit an unfair employment practice. 28. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this Agreement shall result in, or be construed as establishing an employment relationship. To the extent that this Agreement may be construed as requiring Operator to provide services to or on behalf of City, Operator shall be, and shall perform as, an independent contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Operator shall be, or shall be deemed Co be, the employee, agent or servant of the City. City is interested only in the results obtained under this Agreement. The manner and means of conducting the work are under the sole control of operator. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, axe available from City to the employees, agents or servants of Operator. Operator shall be solely and entirely responsible for its acts and for the acts of Operator's agents, employees, servants and subcontractors during the performance of this Agreement. Operator shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for, payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Operator and/or Operator's employees engaged in the performance of the services agreed to herein. 29. Notice. Whenever this Agreement calls for or provides for notice and notice is not otherwise specified, the same shall be provided in writing and shall be served on the person(s) as designated by the parties below, either in person or by certified mail, postage prepaid and return receipt requested. For City: Aspen City Manager 130 South Galena Street Aspen, Colorado 81611 For Operator: Ute Mountaineer, Inc. 308 South Mill Street Aspen, Colorado 81611 The parties may change or add such designated person(s) or addresses as may be necessary from time to time in writing. 30. Bindin Eg ffect. All of the terms and conditions as contained in this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties. 31. Controlling Law. This Agreement shall be enforced and interpreted in accordance with the laws of the State of Colorado. Any action brought to enforce or interpret this Agreement shall be brought in the District Court in and for Pitkin County, Colorado. In the event of litigation between the parties conceming this Agreement or matters azising therefrom, the prevailing party shall be awarded its costs and reasonable attorney's fees. 32. Entire Agreement. This instmment constitutes the entire Agreement by the parties concerning the Premises and shall supplant and supersede any previous agreements between the parties pertinent to the Premises. Any prior or contemporaneous oral or written agreement that purports to vary from the terms as set Forth herein shall be void and of no effect. 33. Amendments. Except as otherwise provided herein, this Agreement and all of its terms and conditions may not be amended or modified absent a written agreement duly executed by theparties. WHEREFORE, the parties, through their duly authorized representatives, have executed this Agreement upon the dates as forth herein. THE CITY OF ASPEN, COLORADO By: Stephen . Bazwick, ity Manager ATTEST: Kathryn S. h, City Clerk OPERATOR: UTE MOUNTAINEERING, INC. By: EXHIBIT A The Clubhouse Building is located at 39551 Highway 82, Aspen, Colorado. The premises is located in a one story building with a basement. The building includes a pro shop, restaurant, offices, bathrooms, repair rooms and storage areas. 71.N-11/30/2009-57856-G:\joM\word\agr\nordic-agr-2010-2015.doc t,..