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HomeMy WebLinkAboutresolution.council.064-23RESOLUTION #064 (Series of 2023) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND BAR WEST GROUP LLC DBA ESCOBAR AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for bar and concessions services at the Wheeler Opera House, between the City of Aspen and Bar West Group, LLC dba Escobar, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for bar and concessions services at the Wheeler Opera House between the City of Aspen and Bar West Group, LLC dba Escobar a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of April 2023. Torre, Mayor I, Nicole Henning, 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, April 25, 2023. t W'c - Nicole Henning, CityClerk DocuSign Envelope ID: EC4E4402-091D-4946-62E3-C3329AD56659 OPERATING AGREEMENT This Operating Agreement (hereinafter referred to as the "Agreement") is entered into as of this 3rd of March , 2023, by and between Bar West, LLC dba Escobar, a Colorado limited liability company (hereinafter "OPERATOR"), and City of Aspen, a Colorado Municipal Corporation organized under the laws of the State of Colorado (hereinafter the "City"), concerns and specifies the following: RECITALS: WHEREAS, the City is the current holder of a tavern license for the sale of alcohol on its property located within the Wheeler Opera House, Aspen, Colorado (hereinafter the "Liquor License"); and WHEREAS, the City and OPERATOR wish to enter into this agreement for the operation of the second floor bar, known as the Wheeler Bar, and other designated areas, pursuant to a tavern license that will be jointly held by the two parties on terms as set forth herein; and WHEREAS, the Parties wish to grant such rights to each other under the terms and conditions of this Agreement. NOW THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties hereby agree as follows: 1. Liquor License Transfer. The parties hereby agree that the current Wheeler Tavern License will be transferred from the City of Aspen to the City of Aspen and OPERATOR. OPERATOR will file all necessary and appropriate documents to complete the transfer. 2. Management and Operation. OPERATOR shall operate and manage the Wheeler Bar, the Bar Storage Areas, and the license areas set forth in Exhibit "B", attached hereto, in a competent and professional manner pursuant to the terms set forth at Exhibit A attached hereto and by this reference incorporated herein. 3. Term. This agreement shall commence upon the completion of the transfer of the Liquor License, but not earlier than June 1 st, 2023, from the City of Aspen to the City of Aspen and OPERATOR and shall continue until June 30th, 2024 unless sooner terminated. Early termination requires 60 day notice in writing. This agreement includes an option to renew for two years after the first 12 months of the contract by mutual agreement. 4. Payments. Funds and receipts generated pursuant to this operation of the bar and the Tavern license shall be distributed and paid pursuant to the terms set forth in Exhibit A, attached hereto. 5. N_oli-Assignability. Both parties recognize that this Agreement cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub - Contracting, if authorized, shall not relieve the OPERATOR of any of the responsibilities or DocuSign Envelope ID: EC4E4402-091D-4946-82E3-C3329AD56659 obligations under this Agreement. OPERATOR shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors' officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the OPERATOR to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub -contractor. 6. Termination. OPERATOR or the City may terminate this Agreement, without specifying the reason therefor, by giving 60-days notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Notwithstanding the above, OPERATOR shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the OPERATOR. 7. Indemnification. To the extent allowed by law, the parties hereto hereby agree to indemnify and hold harmless each other, their officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, which arise out of or are in any manner connected with this contract, 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 negligent act, omission, error, of the party, any subcontractor of the party, or any officer, employee, representative, or agent of the party or of any subcontractor of the party, or which arises out of any workmen's compensation claim of any employee of the party or of any employee of any subcontractor of the party. 8. OPERATOR's Insurance. OPERATOR agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the OPERATOR pursuant to Section 7 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The OPERATOR shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 7 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. OPERATOR shall procure and maintain, and shall cause any subcontractor of the OPERATOR to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the OPERATOR pursuant to Section 7 above. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workers' Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liabilio) insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS DocuSign Envelope ID: EC4E4402-091D-4946-62E3-C3329AD56659 ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self -insured status may be substituted for the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and TWO MILLION DOLLARS ($2,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) intentionally removed; OPERATOR does not own, hire or possess any vehicles and confirms it will not require its owners, employees or agents to operate a vehicle while providing services pursuant to this Agreement. (iv) Liquor Liability insurance with limits in the same amount as the general commercial liability coverages. The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by OPERATOR. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The OPERATOR shall be solely responsible for any deductible losses under any policy required above. The certificate of insurance provided to the City shall be completed by the OPERATOR's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. Failure on the part of the OPERATOR to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all DocuSign Envelope ID: EC4E4402-091D-4946-82E3-C3329AD56659 premiums in connection therewith, and all monies so paid by City shall be repaid by OPERATOR to City upon demand, or City may offset the cost of the premiums against monies due to OPERATOR from City. City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $350,000.00 per person and $990,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper- ty/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Risk Management Department and are available to OPERATOR for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide OPERATOR reasonable notice of any changes in its membership or participation in CIRSA. 10. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 11. Notice. Any written notices as called for herein may be hand delivered or mailed by certified mail return receipt requested to the respective persons and/or addresses listed above. 12. Non -Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. OPERATOR agrees to meet all of the requirements of City's municipal code, Section 15.04.570, pertaining to non-discrimination in employment. 13. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by OPERATOR to which the same may apply and, until complete performance by OPERATOR of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 14. Execution of Agreement by City. This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding 4 DocuSign Envelope ID: EC4E4402-091D-4946-62E3-C3329AD56659 anything to the contrary contained herein, this Agreement shall not be binding upon the City unless duly executed by the City Manager of the City of Aspen. 15. Illegal Aliens- CRS 8-17.5-101 & 24-76.5-101. (a) Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. (b) Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Public Contract for Services" means this Agreement. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. (c) By signing this document, OPERATOR certifies and represents that at this time: (i) OPERATOR shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) OPERATOR has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not illegal aliens. (d) OPERATOR hereby confirms that: (i) OPERATOR shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) OPERATOR shall not enter into a contract with a subcontractor that fails to confirm to the OPERATOR that the subcontractor shall not knowingly hire new DocuSign Envelope ID: EC4E4402-091D-4946-82E3-C3329AD56659 employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) OPERATOR has verified or has attempted to verify through participation in the Federal Basic Pilot Program that OPERATOR does not employ any new employees who are not eligible for employment in the United States; and if OPERATOR has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, OPERATOR shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. OPERATOR shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until OPERATOR is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) OPERATOR shall not use the Basic Pilot Program procedures to undertake pre- employment screening of job applicants while the Public Contract for Services is being performed. (v) If OPERATOR obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with a new employee who is an illegal alien, OPERATOR shall: (1) Notify such subcontractor and the City of Aspen within three days that OPERATOR has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that OPERATOR shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) OPERATOR shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. (vii) If OPERATOR violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of OPERATOR's violation of Subsection 8-17.5-102, C.R.S. DocuSign Envelope ID: EC4E4402-091D-4946-82E3-C3329AD56659 (viii) If OPERATOR operates as a sole proprietor, OPERATOR hereby swears or affirms under penalty of perjury that the OPERATOR (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (2) shall comply with the provisions of CRS 24- 76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 16. Warranties Against Contingent Fees. Gratuities, Kickbacks and Conflicts of Interest. (a) OPERATOR warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the OPERATOR for the purpose of securing business. (b) OPERATOR agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (c) OPERATOR represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (d) In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a OPERATOR contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the OPERATOR; and Recover such value from the offending parties. 17. General Terms. (a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. DocuSign Envelope ID: EC4E4402-091 D-4946-82E3-C3329AD56659 (b) If any of the provisions of this Agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. 18. License transfer. At the end of the term set forth in paragraph 3, above, or upon any termination of the Agreement pursuant to paragraph 6, above, OPERATOR agrees to consent to the transfer of the Liquor License from OPERATOR and City to the City or the City's designee or both. In the event that OPERATOR fails to execute the documents necessary to finalize such transfer, then this agreement shall be deemed full authorization and consent to such transfer. 19. Prior Agreements. All prior agreements regarding the Wheeler Bar are hereby terminated. IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement on the date first written above. City of Aspen: OPERATOR: oacus4nw er: By: viavo, F00W By: DocuSign Envelope ID: EC4E4402-091D-4946-82E3-C3329AD56659 EXHIBIT A TO OPERATING AGREEMENT Operating Space and License Area: Wheeler Bar and Bar Storage Areas including all equipment in the areas, as well as the areas described as follows: See, Exhibit "B", attached hereto. Gross Sales Distribution: OPERATOR and the City will divide the monthly gross sales with 5% paid to the City and the remainder to OPERATOR. OPERATOR agrees to pay the City its share of monthly gross sales at to be mutually agreed upon dates. If the payment is not received on or before said mutually agreed upon dates, OPERATOR shall pay the City a late charge of up to five percent (5%) on such overdue amount. The parties hereby agree that such a late charge will represent a fair and reasonable settlement of the cost that the City would incur by reason of the late payment by OPERATOR. Acceptance of such late charges by the Wheeler shall in no event constitute a waiver of OPERATOR's default with respect to such overdue amount, nor prevent the Wheeler from exercising any of the other rights and remedies granted hereunder unless the entire amount due, plus late charge, is accepted by the City. In addition, any sum for which OPERATOR shall be obligated to the Wheeler, which is not received on the due date thereof, shall bear interest at the rate of up to five percent (5%) per annum from and after the due date until paid. Operating Manager: OPERATOR must appoint an acting bar manager for the Wheeler Bar who is not the same person as the acting general manager for OPERATOR. The acting manager must pass the standard and required background check and will be listed on the Liquor License. Evidence of passing standard checks must be submitted to the City. Cost and Expenses: OPERATOR shall assume all costs involved with operating the Wheeler Bar including food and beverage costs, labor, insurance, license(s), etc. Collecting and remitting all appropriate taxes, fees, and documentation is the sole responsibility of OPERATOR. Operating System: City owns currently installed SQUARE POS system. OPERATOR may use this system as is at no charge. If OPERATOR desires any changes to the currently installed system, associated costs and/or cost -sharing to be reviewed and mutually agreed upon. Operating Schedule: OPERATOR agrees to operate bar at least 30 min prior to each public event, or earlier if mutually agreed upon in advance, staying operational until at least intermission or until a mutually agreed upon time. OPERATOR agrees to operate as needed for private events, TBA based on schedule. Wheeler staff will provide schedule requests at least 30- days in advance and will provide a 72hr notice for changes to staffing requests. OPERATOR and City agree to make reasonable accommodations as circumstances warrant. DocuSign Envelope ID: EC4E4402-091D-4946-82E3-C3329AD56659 Food and Beverage Menu: Price and product menu will be submitted to the Wheeler for approval upon the execution of this Agreement, and no later than 5 business days prior to the first bar opening. Any price changes following the initial approval must be approved in writing by the Wheeler's Executive Director. The Wheeler requires that affordable pricing is available, requiring a suggested range of $5 - $18. All prices will be mutually approved by the Wheeler and OPERATOR. If prices cannot be mutually agreed upon, the agreement will be terminated. Appearance: OPERATOR staff will maintain a professional appearance while working at the Wheeler Bar, and uniform/attire shall be agreed upon between OPERATOR and Wheeler Management prior to opening. OPERATOR logos should not be present on working bartenders. Maintenance & Repair: City will be responsible for the maintenance and repair of all currently installed equipment, including but not limited to: cold plates, soda gun system, ice machines, refrigerators, etc. OPERATOR will provide timely notice of any repair necessary to the equipment or operating space. OPERATOR will be responsible for any damage occurring out of carelessness, negligence, or misuse of equipment by OPERATOR or OPERATOR's employees. OPERATOR will be responsible for basic end -of -night maintenance of operating space, including but not limited to emptying of waste, compost, and recycling bins located behind the bar and clean up of service -area surfaces. OPERATOR will be responsible for the overall cleanliness and organization of the lockable storage space located directly behind the bar. Licenses: OPERATOR will operate under a tavern license issued to the City and the OPERATOR and agrees to abide by all rules and regulations of the State of Colorado, City of Aspen, and Pitkin County. OPERATOR will actively protect the liquor license and agrees to and shall save, hold, and keep harmless and indemnify the City from and against any and all liquor code violations caused by OPERATOR. 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