HomeMy WebLinkAboutordinance.council.038-11 RECEPTION #: 586032, 01/20/2012 at
09:39:04 AM,
1 OF 8, R $46.00 Doc Code ORDINANCE
Janice K. Vos Caudill, Pitkin County, CO
ORDINANCE NO. 38,
(SERIES OF 2011)
AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING A
SPECIALLY PLANNED AREA (SPA) AMENDMENT, AND AN ESSENTIAL PUBLIC
FACILITY GROWTH MANAGEMENT REVIEW, FOR THEATRE ASPEN TO
CONSTRUCT A PERMANENT LOBBY STRUCTURE AND TO ALLOW THEATRE
ASPEN TO MAINTAIN THEIR TENT FRAME, STAGE, AND SEATING ON -SITE
DURING THE WINTER AT RIO GRANDE PARK, 505 RIO GRANDE PLACE, CITY
OF ASPEN, COLORADO, LEGALLY DESCRIBED AS: LOT 1 OF THE RIO GRANDE
SUBDIVISION.
Parcel ID 2737 - 073 -06 -851
WHEREAS, the Community Development Department received an application from
Theatre Aspen, represented by Charles Cunniffe Architects, requesting approval of a Specially
Planned Area (SPA) amendment, and an Essential Public Facility Growth Management Review,
to construct a permanent lobby structure and to permit the theatre tent framing, stage, and seating
to remain on -site year round; and,
WHEREAS, the Applicant requests a recommendation by the Planning and Zoning
Commission to the City Council for a Specially Planned Area (SPA) Amendment, and Essential
Public Facility Growth Lodge Management Review; and,
% r WHEREAS, the property is located in the Rio Grande Park and is zoned Public (PUB)
with an SPA Overlay; and,
WHEREAS, upon initial review of the application and the applicable code standards, the
Community Development Department recommended the Applicant amend the proposal to better
comply with the requirements of a Specially Planned Area (SPA); and,
WHEREAS, during a duly noticed public hearing on November 1, 2011, Planning and
Zoning Commission approved Resolution No. 20, Series of 2011, by a four to zero (4 — 0) vote,
recommending city Council approve an amendment to the Rio Grande SPA and an Essential Pubic
Facilities Growth Management Review for Theatre Aspen; and,
WHEREAS, pursuant to Section 26.440, the City Council may approve a SPA
Amendment, during a duly noticed public hearing after considering a recommendation
from the Planning and Zoning Commission made at a duly noticed public hearing, comments
from the general public, a recommendation from the Community Development Director, and
recommendations from relevant referral agencies; and,
WHEREAS, pursuant to Section 26.470, the City Council may approve an Essential
Public Facility Growth Management Review, during a duly noticed public hearing after
considering a recommendation from the Planning and Zoning Commission made at a duly
Ordinance 38, Series 2011
Page 1 of 5
noticed public hearing, comments from the general public, a recommendation from the
Community Development Director, and recommendations from relevant referral agencies; and,
WHEREAS, during a duly noticed public hearing on January 9, 2012, the City Council
approved Ordinance No. 38, Series of 2010, by a four to one (4 — 1) vote, approving an SPA
amendment and an Essential Public Facility Growth Management Review; and,
WHEREAS, the Aspen City Council has reviewed and considered the development
proposal under the applicable provisions of the Municipal Code as identified herein, has reviewed
and considered the recommendation of the Planning and Zoning Commission, the Community
Development Director, the applicable referral agencies, and has taken and considered public
comment at a public hearing; and,
WHEREAS, the City Council finds that the development proposal meets or exceeds all
applicable development standards and that the approval of the development proposal, with
conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and,
WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the
promotion of public health, safety, and welfare.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN AS FOLLOWS:
Section 1: Approvals
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the
Planning and Zoning Commission hereby recommends City Council approval of a Specially
Planned Area (SPA) amendment to the Rio Grande SPA, and an Essential Public Facility Growth
Management Review.
Section 2: Design
The permanent lobby structure shall comply with the plan shown at the November 1 2011 P &Z
meeting, and attached as Exhibit A. Theatre Aspen's commemorative brick shall be re-
incorporated into the permanent lobby and/or associated patio.
The tent framing shall be covered with a roof, as weather allows, from April to October of each
calendar year.
From October to April of each calendar year, the tent framing shall not be covered with a roof.
Temporary sides shall be installed to shield the stage and seating from view. The stage and
seating shall be under protective cover and located on the existing concrete pad. This is attached
as Exhibit B. Theatre Aspen shall return to City Council one year from the date of approval, or
as soon thereafter as can be scheduled with City Council, to review the design of the tent framing
with temporary walls. City Council shall have the ability to amend the SPA approval as
necessary to ensure the visual impacts of the tent framing are sufficiently minimized from
October to April.
Ordinance 38, Series 2011
Page 2 of 5
Theatre Aspen shall provide a security check of the site at least three times per week to ensure
the site remains safe and secure.
Section 3: Signage
A revised signage plan reflecting changes discussed with staff and the Planning and Zoning
Commission shall be submitted to staff prior to City Council review. This shall include
replacing a proposed marquee sign with a less imposing sign on a low -lying rock, as outlined in
the P &Z meeting on November 1, 2011 and the staff memo for said meeting.
Section 4: Temporary Fencing
The temporary fencing shown in Exhibit C shall be temporary, and shall only be erected during
the theatre season when theatre performances are conducted and when required by the Actors'
Equity Association Small Professional Theatre Rulebook, Sec. 48.A.2 -4. The fencing shall be
constructed in a manner that does not prevent or limit the use of the trash enclosure for trash
storage.
Section 5: Essential Public Facility Growth Management Review - Affordable Housing
Mitigation
Theatre Aspen shall conduct an employee audit one year after final City Council approval for the
permanent lobby structure. Volunteer hours shall not be included in the audit. Any additional
employees that are not a result of the Rio Grande improvements shall be indicated in the report.
However, only those employees that are a result of the improvements shall be subject to future
mitigation. The Housing Authority shall request the audit from Theatre Aspen. Failure to request
the audit shall not render any of the approvals invalid. Theatre Aspen shall provide the Housing
Authority and the Community Development Department with the audit report. The Housing
Authority and Community Development shall forward the audit to the Housing Board, P &Z and/or
City Council for review, as applicable.
Section 6: Parks
Theatre Aspen shall coordinate all improvements with the Parks Department to ensure they
comply with the Parks Department's Master Plan for Rio Grande Park. Theatre Aspen shall
comply with Parks Department regulations related to the prohibition of pesticide and herbicide
use.
The applicant shall ensure the site is clean and secure at all times. The applicant shall work with
the Parks Department to ensure compliance during the fall and winter months when the tent is
taken down each year.
Section 7: Environmental Health
Theatre Aspen shall undertake a noise monitoring program for its productions to ensure compliance
with the City's noise ordinance, as amended from time to time. The current noise limits are 55 dBA
from 7am — 9pm, and 50 from 9pm — 7am. The noise monitoring program shall verify compliance
with the noise ordinance, by Theatre Aspen staff, before opening night of each production. It shall
also include continued monitoring throughout the summer theatre season given background noise
levels may vary. Noise level readings shall be taken at multiple locations along the property line of
r
i..
Ordinance 38, Series 2011
Page 3 of 5
the Rio Grande Park. The noise monitoring program shall be filed with the City of Aspen
Environmental Health Department, who may require it to be updated as needed.
Concessions at the tent historically have only been pre - packaged, non - potentially hazardous foods,
and beverages without ice, due to the fact that Theatre Aspen does not hold a food service license
nor have permanent plumbing. For special events serving food held at Theatre Aspen a temporary
food permit must be submitted for approval to the Aspen Environmental Health Department prior to
the event to ensure the protection of public health.
Section 8: Engineering
The Applicant's design shall be compliant with all sections of the City of Aspen Municipal
Code, Title 21 and all construction and excavation standards published by the Engineering
Department. A construction management plan should be submitted as part of building permit.
Section 9: Exterior Lighting
All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to
Land Use Code Section 26.575.150, Outdoor lighting. No lighting shall be permitted in the
stream margin area (fifteen (15) foot setback area from top of slope) or in any area below the top
of slope line (toward the river) unless it is in the exact location of the existing lighting and
requires no additional disturbance to the stream margin area.
Section 10: Theatre Aspen Lease
Within 180 days of City Council approval, Theatre Aspen shall re- execute their long -term lease
on the Rio Grande Park to reflect this approval.
Section 11:
All material representations and commitments made by the Applicant pursuant to the development
proposal approvals as herein awarded, whether in public hearing or documentation presented before
the Planning and Zoning Commission or City Council, are hereby incorporated in such plan
development approvals and the same shall be complied with as if fully set forth herein, unless
amended by an authorized entity.
Section 12:
This ordinance shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 13:
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
Ordinance 38, Series 2011
Page 4 of 5
The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this ordinance in
the office of the Pitkin County Clerk and Recorder.
Section 14:
A public hearing on this ordinance shall be held on the 9 day of January, 2012, at a meeting of the
Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall,
Aspen, Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall
be published in a newspaper of general circulation within the City of Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council
of the City of Aspen on the 12 day of December, 2011.
Attest:
At/A—Het )k isi
Kathryn S. och, City Clerk Michael C. Ireland, May r
FINALLY, adopted, passed and approved this day of 1G1�;
Attest:
- 1
Kathryn . Koch, City Clerk Michael C. Ireland, Mayor
Approved as to form:
orney
EXHIBITS:
Exhibit A: Plans for the permanent lobby structure
Exhibit B: Rendering of tent framing and screening
Exhibit C: site plan indicating location of proposed actor's privacy fence.
Ordinance 38, Series 2011
Page 5 of 5
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4
LEASE AGREEMENT
BETWEEN THE CITY OF ASPEN
AND
THEATRE ASPEN
THIS LEASE AGREEMENT entered into at Aspen, Colorado, this day of
, 2011, by and between the CITY OF ASPEN, COLORADO, a municipal
corporation and home -rule city ( "hereinafter "City "), and THEATRE ASPEN a Colorado
non - profit corporation (hereinafter "Tenant ").
WITNESSETH:
WHEREAS, the City is the owner of the Rio Grande Park in Aspen, Colorado and
desires to lease to Tenant certain space within the Rio Grande Park, as further described
herein; and
WHEREAS, Tenant desires to lease that certain space within the Rio Grande Park for
the purposes set forth below and upon the terms and conditions set forth herein; and
WHEREAS, the City of Aspen City Council on January 9, 2012 approved Ordinance
38, Series 2011, approving an amendment to the Rio Grande SPA Final Development Plan and
a Growth Management Exemption as an Essential Public Facility to allow for the construction
of a permanent lobby structure, and allowing the tent framing with temporary walls to remain
erected for a one -year test period; and
WHEREAS, Ordinance 38, Series 2011, required that Theatre Aspen's lease of the
property be re- executed and updated within 180 days of the approval; and
WHEREAS, the parties hereto understand that this Lease Agreement is specifically
conditioned upon the Aspen City Council granting the requisite land use approvals for the
proposed uses within the Rio Grande Park.
NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions
contained herein, the parties agree as follows:
1. Term. The initial term of this Lease Agreement shall be for a period of ten (10)
years and nine (9) months, effective January 1, 2011, and terminating at the conclusion of
Tenant's 2021 season on October 1, 2021. An additional term of ten (10) years (terminating on
October 1, 2031) shall automatically be added to the initial term provided that Tenant provides
the City with written notice at least 6 months prior to the end of the initial term that it intends
to renew the term of this Lease Agreement for an additional ten years. The parties hereto
agree to discuss the continuation of the Lease Agreement no less than six (6) months before its
termination. Negotiations for the continuation of this Lease Agreement shall be subject to
review by the City, and shall proceed upon good faith by both parties.
Page 1
2. Premises. The Premises subject to this Lease Agreement shall be the area
outlined within the Rio Grande park as shown on Exhibit 1 appended hereto and by this
reference made a part hereof as if fully set forth here.
3. Use. The Premises may be used by Tenant solely for the purpose of placing a
tent in substantially the area shown on Exhibit 1, and constructing or placing a ticketing and
concessionaire's structure to remain on the Premises during the duration of this Lease
Agreement. Tenant may use the Premises for the presentation of theatrical productions and
related operations. Tenant may occasionally rent out the Premises to third parties who may use
the Premises for similar purposes. The uses permitted on the Leased Premises shall comply in
all respects with any and all conditions required by the City in any approvals that may be
granted to the Tenant by the Aspen City Council pursuant to the Aspen Municipal Code.
Prompt clean -up of the Premises after each summer season shall be conducted by Tenant.
Materials kept within the Premises should be contained to the tent and structure layout as shown
on Exhibit 1 under protective cover and within existing enclosed structures on property which
total approximately 250 sq ft. Any improvements or replacements planned to these existing
structures should not cause total enclosed sq footage to exceed 500 sq ft total or maximum height
for any enclosed structure to exceed 15 ft. Any unenclosed structures that remain onsite of the
Premises year- round, including but not limited to framework for theatre's lobby structure, shall
be subject to the prior approval of the City Council by the review of a Specially Planned Area
amendment process or the Community Development through administrative review, as
appli cabl e.
Tenant shall not use the Premises for any other purposes without the City's written consent.
Tenant'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, Tenant 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 Tenant's operations. In the event
that Tenant proposes to use the Premises in a manner that would increase the City's insurance
premiums, the City and Tenant agree to discuss such plans to determine if there is a way to
minimize the costs to the City and still permit the proposed activity to take place. Tenant shall
not keep, use or sell anything prohibited by any policy of fire insurance covering the
Premises.
Tenant shall return to City Council one year from the date of approval in Ordinance 38, Series
2011 (January 9, 2013), or as soon thereafter as can be scheduled with City Council, to review
the design of the tent framing with temporary walls. City Council shall have the ability to
amend the SPA approval as necessary to ensure the visual impacts of the tent framing are
sufficiently minimized, including an order to remove the structure if deemed by City Council
as the appropriate solution.
Tenant shall undertake a noise monitoring program for its productions to ensure compliance with
the City's noise ordinance, as amended from time to time. The noise monitoring program shall
Page 2
verify compliance with the noise ordinance, by Tenant, before opening night of each production.
It shall also include continued monitoring throughout the summer theatre season given
background noise levels may vary. Noise level readings shall be taken at multiple locations along
the property line of the Rio Grande Park. The noise monitoring program shall be filed with the
City of Aspen Environmental Health Department, who may require it to be updated as needed.
4. Time of Occupancy, Acceptance, Surrender of Premises and Abandonment.
Tenant shall be entitled to use and occupy the Premises during all times as set forth in the land
use approvals granted by the City. At all other times Tenant may use the Premises only with
the prior approval of the City. If the Tenant abandons the Premises for a period of more than
30 days (excepting the off - season) then this Lease Agreement shall automatically terminate and
shall be considered a breach by Tenant. Tenant shall be responsible for landscape restoration
of the Premises to a park condition of turf grass sod.
5. Rent. Tenant agrees to pay a total of $10.00 per year to the City as rent for the
Premises, payable on the first day of each calendar year.
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. Vehicular access to the Premises shall be restricted. Except
for sanitation service vehicles and trash removal vehicles intended to service the Premises,
vehicular access to the tent site shall be restricted to deliveries of theatre property or tools
weighing over 50 pounds. All deliveries must be accompanied by a person on foot in front of
the vehicle to warn pedestrians and park users for safety reasons.
7. Maintenance and Repairs. Tenant, at its sole expense, shall keep the Premises
in a good, clean and safe condition. Tenant shall be responsible for all maintenance inside the
Premises as shown on Exhibit 1, including pathways, entrance landscaping, structures and
infrastructure. This list may not be inclusive. Tenant shall not be responsible for snow
removal inside the Premises unless required for access to theatre property. The City shall be
responsible for irrigation maintenance on the Premises and adjacent park area and be
responsible for grounds maintenance in the park area outside of the Premises, including
pathways and any lighting outside of the Premises. Tenant shall be responsible for any
electrical infrastructure and lighting inside the Premises.
8. Utilities and Security System. Tenant shall be responsible for all utilities used
on the Premises. Theatre Aspen shall provide a security check of the site either in person or via
a remote monitoring system at least three times per week to ensure the site remains safe and
secure.
9. Personal Property. All personal property and trade fixtures placed on the
Premises shall be at Tenant'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 Tenant, its agents
or employees. Any personal property or trade fixtures of Tenant or anyone claiming under
Tenant, which shall remain on the Premises after the date upon which the Premises shall be
Page 3
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.
10. Taxes. In the event any taxes are levied and assessed upon the Premises or
upon the improvements, fixtures or personal property of the Tenant during the term of
Tenant's occupancy of the Premises or arising therefrom, or upon the leasehold or possessory
interests as created through this lease, Tenant shall be solely responsible to satisfy and pay all
such taxes in a timely fashion. Tenant shall not allow any liens for taxes or assessments to
exist with respect to the Premises, except that Tenant may permit such taxes or assessment to
remain unpaid while pursuing any good faith contest or appeal of same.
11. Indemnification. Unless caused by the negligence of the City, Tenant 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 Tenant's occupancy of the Premises pursuant to this Agreement, if such injury,
loss, or damage is caused in whole or in part by, the omission, error, or negligence of the
Tenant, any subcontractor of the Tenant, or which arises out of any workmen's compensation
claim of any employee of the Tenant or of any employee of any subcontractor of the Tenant.
12. Public Liability Insurance. Tenant 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 standard risks related to the leasing, use, or occupancy, 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, 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.
13. Premises Insurance. During the full term of this Agreement, Tenant, at its sole
cost and expense, and at Tenant's discretion, may 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
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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.
14. Termination Due to Fire or Similar Catastrophe. If, absent negligence or fault
on the part of Tenant, the Premises shall be damaged by fire or other catastrophe so as to
render said Premises wholly untenantable, 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 Tenant 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 Tenant shall have thirty (30) days
from date of official notification of this decision to decide whether to maintain this Lease
Agreement and be solely responsible for restoring the Premises to working condition or
whether to terminate this Lease Agreement and vacate the Premises. Such a termination of the
Lease Agreement shall not forgive Tenant's obligation to restore the landscape of the Premises
to a park condition of turf grass sod as outlined in Section 3. 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 Tenant with all reasonable speed to restore the Premises to its
former condition and the Lease Agreement shall remain in effect. All insurance proceeds
resulting from Tenant's insurance policies and coverage shall remain property of Tenant,
regardless of official decision regarding the condition of Premises or Tenant's decision
whether to terminate Agreement and restore the Premises.
15. City to be Named a Co- Insured or Additional Insurance. Tenant 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.
16. Repairs and Alterations by Tenant. Tenant, pursuant to any land use approvals
received from the city, or 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 Tenant and remain the property of Tenant upon
termination of this Lease Agreement. Tenant agrees that prior to any construction or
installation of alternations, additions or improvements, Tenant 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 Tenant's acts or
omissions may be treated as a material breach of this Lease Agreement.
17. 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,
maintenance activities, renovations or repairs in and about the Rio Grande Park, other than
those noted above as required by Tenant, as City deems necessary or desirable and Tenant
Page 5
covenants to make no claim against City for any interference with its interest as herein
provided in the Premises. Any such activity within the Premises may only take place upon
Tenant's consent. City shall provide reasonable notice to Tenant in advance of any intent to
undertake any work in the Rio Grande Park as authorized in this paragraph and all work shall
be performed at such times as may be mutually agreed to between the parties so as to eliminate
or minimize any disruption of Tenant's business. The City shall, however, have the final
decision making authority as to what time is reasonable under the circumstances.
18. Condemnation. If during the term of this Lease 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. Tenant 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.
19. Assignment of Agreement. Tenant 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, except as allowed in section 3 above. Such consent shall not be
unreasonably withheld. Tenant shall, likewise, not permit any third party to occupy or use the
Premises absent the prior written consent of the City except as allowed in Section 3.
20. Signs. Tenant shall not place any signs upon the Premises or upon the Rio Grande
Park 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 Tenant's
business. Accordingly, the City hereby consents to allowing Tenant to place banners of Tenant's
choosing within the Premises as shown on Exhibit 1 provided they comply with the City's sign
code. Additional banners or signs outside of the Premises within Rio Grande Park may only be
placed with the approval of Parks staff. Any sign permitted by City shall at all times comply with
applicable ordinances, rules and regulations.
21. Breach by Tenant Defined. If Tenant shall fail to timely comply with any of the
terms or conditions of this Agreement, any term or condition of the land use approvals granted
by the City, 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 thirty (30) days (not including seasonal closures) then at any time
afterwards City may treat such act or omission as a breach of this Lease 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.
Page 6
22. City's Remedy for Breach. Any breach, default or failure by Tenant to perform
any of the duties or obligations assumed by Tenant under this Lease Agreement shall be cause
for termination of the Lease Agreement by City in the manner set forth in this paragraph. City
shall deliver to Tenant thirty (30) days' prior written notice of its intention to terminate this
Lease Agreement, including in the notice a reasonable description of the breach, default or
failure. If within that thirty (30) days Tenant shall fail or refuse to cure, adjust or correct the
breach, default or failure to the reasonable satisfaction of City, the City shall have the right to
declare this Lease Agreement terminated and all rights, powers and privileges of Tenant as
provided through the Lease Agreement shall cease, and Tenant 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 Tenant by the hand delivery of same upon the Tenant's primary address set forth
herein, or at the time it is deposited in the U.S. Mail, certified, postage prepaid, addressed to
the address set forth herein.
23. Non - Waiver of Rights. Any failure by City to so terminate this Lease
Agreement as herein provided after the breach, default or failure by Tenant to adhere to the
terms of the Lease Agreement shall not be deemed or construed to be a waiver or continuing
waiver by City of any rights to terminate the Lease Agreement for any present or subsequent
breach, default or failure.
24. Non - Discrimination. Tenant 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
Lease Agreement, Tenant 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.
25. 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 Tenant: Managing Director
Theatre Aspen
110 E. Hallam St., Ste 103
Aspen, CO 81611
The parties may change or add such designated person(s) or addresses as may
be necessary from time to time in writing.
Page 7
26. Binding Effect. All of the terms and conditions as contained in this Agreement
shall inure to the benefit of and be binding upon the successors and a ssigns of the parties.
27. Controlling Law. This Lease 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 concerning this Agreement or matters arising
therefrom, the prevailing party shall be awarded its costs and reasonable attorney's fees.
28. Entire Agreement. This instrument constitutes the entire Lease 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.
29. Amendments. Except as otherwise provided herein, this Lease Agreement and
all of its terms and conditions may not be amended or modified absent a written agreement
duly executed by the parties.
30. Condition Precedent. This Lease Agreement is specifically conditioned upon the
Aspen City Council granting the requisite land use approvals to Tenant for the proposed uses
on the Leased Premises and Tenant's acceptance of same, including any conditional terms related
to approvals. Furthermore, this Lease Agreement is hereby subject to all the terms and
conditions that may be required by the Aspen City Council in any land use approvals granted
to Tenant for the proposed uses described herein.
WHEREFORE, the parties, through their duly authorized representatives, have
executed this Agreement upon the dates as forth herein.
THE CITY OF ASPEN, COLORADO
By:
Stev arwick, City Manager
ATTEST:
athryn S. h, Cit Clerk
Page 8
TENANT:
Theatre Aspen
By: Cl
Emily Zeckanaging Director
Page 9
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