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HomeMy WebLinkAboutresolution.council.141-14 RESOLUTION # 141 (Series of 2014) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AN AMENDMENT TO THE LONG-TERM STEWARDSHIP LEASE AGREEMENT FOR THE COZY POINT RANCH AND EQUESTRIAN CENTER BETWEEN THE CITY OF ASPEN AND COZY POINT RANCH LLC AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AMENDMENT TO LEASE ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a proposed Amendment to the Long-Term Stewardship Lease Agreement for the Cozy Point Ranch and Equestrian Center between the City of Aspen and Cozy Point Ranch LLC, 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 the Amendment to the Long-Term Stewardship Lease Agreement for the Cozy Point Ranch and Equestrian Center between the City of Aspen and Cozy Point Ranch LLC, 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 i y Council of t `e City of Aspen on the 24`h day of November 2014. Steven kadr , Mayor I I, Linda Manning, 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, November 24, 2014. e Linda Manning, City Clerk . AMENDMENT TO LONG-TERM STEWARDSHIP LEASE AGREEMENT FOR THE COZY POINT RANCH AND EQUESTRIAN CENTER THIS LEASE AGREEMENT entered into at Aspen, Colorado, this l9'" day of November, 2014, by and between the CITY OF ASPEN, COLORADO, a municipal corporation and home-rule city ("City"), and COZY POINT RANCH, LLC, a Colorado limited liability company ("Tenant") amends the Long-Term Stewardship Lease Agreement for the Cozy ,Point Ranch and Equestrian Center as follows: WITNESSETH: WHEREAS, the City is the owner of the Cozy Point Ranch and Equestrian Center in Pitkin County, Colorado, which property is described on the map attached hereto as Exhibit A (the"Premises"), consisting of approximately 93.5 acres; and WHEREAS, on or about April 15, 2010, the City and Tenant entered into the Long-Term Stewardship Lease Agreement for the Cozy Point Ranch and Equestrian Center (hereinafter the "Lease"); and WHEREAS, at the time of the entry of the lease Tenant was a Colorado Limited Liability Company consisting of two members, Monroe Summers and Glenda Summers; and WHEREAS, following the unexpected and untimely death of Monroe Summers on August 26, 2014, Cozy Point Ranch, LLC was acquired in full by Patricia K. Watson, a former employee of the Tenant; and WHEREAS, Patricia K. Watson has experience in equestrian center management and desires to continue the operation of that part of the prior tenancy and terminate and release the LLC from obligations to City for certain provisions of the previous Long-Term Stewardship Lease Agreement for the Cozy Point Ranch and Equestrian Center; and WHEREAS, the City and Tenant are desirous of amending the Long-Term Stewardship Lease Agreement for the Cozy Point Ranch and Equestrian Center on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions contained herein, the parties agree as follows: 1. Term. The term of the Lease is hereby amended effective at noon, Mountain Standard Time, on December 1, 2014. The amended lease shall terminate at noon, Mountain Standard Time, on December 31, 2015. The parties may extend the Lease for such time and on such terms as the parties may agree at any time prior to the end of the Lease. 2. Use. Section 2 of the Lease regarding "Use" is hereby amended to read as follows: Tenant may use the Premises solely for the purpose of managing and operating an equestrian center and providing related services to third parties. Tenant shall not use the premises for any other purposes without 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. Tenant shall not keep, use or sell anything prohibited by any policy of fire insurance covering the Premises. In the event that any change in law takes place that, in Tenant's reasonable discretion, would make it materially more difficult or more expensive for the Tenant to use the Premises as provided for hereunder, then Tenant may, upon not less than sixty (60) days prior written notice to City, terminate this Agreement; for purposes of this Agreement, the term "change in law" shall include, without limitation: (a) any change to the Pitkin County Land Use Code; (b) any change to the zoning underlying the Premises; (c) any laws, condemnation proceedings, ordinances and/or regulations of any kind or nature adopted by the government of Pitkin County or the City (or any of their respective agencies); or (d) any court ruling of any kind by a court of competent jurisdiction, which would negatively impact the water rights appurtenant to the Premises, condemn all or any portion of the Premises, or otherwise negatively impact the Premises, or remove any portion of the premises from potentially productive ranch, agricultural or equestrian uses. The premises to which this lease pertains are described as that portion of the City of Aspen's Cozy Point Ranch as described on the attached map (Exhibit A). 3. Time of Occupancy, Acceptance and Surrender of Premises. Tenant shall be entitled to manage, use and occupy the premises as set forth in Section 2, above. Occupancy of the Premises by the Tenant shall be construed as recognition that the Premises are in their "as is" condition, but shall not be construed as a waiver by Tenant of any of the City's agreements to conduct certain repairs to the Premises. Unless otherwise extended by agreement with the City Tenant shall surrender the premises upon the termination of the lease as set forth in Section 2, above. 4. Payment. Section 4 of the Lease is hereby amended as follows: Tenant shall pay the one half of net profit earned by the LLC. The City will have access to accounting information in order to determine payment as based on profit and loss budget. This information will be provided to the City on a monthly basis. However, payment shall be calculated based on the entire thirteen month lease, with full payment due on January 31, 2016 All other terms of payment set forth in paragraph 4 of the lease are hereby deleted. 5. 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. Tenant shall be responsible to insure that the facilities of the property covered 2 under this lease agreement are open and safe for the enjoyment of the public. 6. Duties of Tenant Relative to Operation and Management of the Equestrian Center. Section 6 of the Lease, Duties of Tenant Relative to Operation and Management of the Ranch and Equestrian Center is hereby amended to read as follows: During the term of the Lease, as amended, the Tenant agrees to the following terns and conditions: a. Equestrian Center Tenant shall operate a public equestrian boarding, exercising and training facility, accommodating both English and Western disciplines. Regular public office hours for the Tenant and Cozy Point Ranch staff will be 8:00 a.m. to 5:00 p.m., Monday through Friday, except for holidays. The equestrian facilities will be available for use by the boarders and the general public from 8:00 a.m. to 5:00 p.m., seven days per week, 52 weeks per year. Before and after hours use may be arranged with Tenant by waiver and on an individual, case-by-case basis; however, Tenant shall not be obligated to provide any after-hours use, but such use shall not be arbitrarily limited. Boarders will be permitted twenty-four hour per day/seven days per week access to their horses for medical, health, or dietary purposes. Tenant reserves the right to restrict access to the indoor and outdoor arenas during special events, clinics, schools, or competitions. The facility shall be operated so as to accommodate without discrimination the exercising and training needs of the public, both boarders and non-boarders of all ages, subject to equitable barn rules and fees. Tenant shall arrange to have instruction and training available in both Western and English disciplines and to accommodate without discrimination, instruction and training provided by outside trainers, not directly employed by Tenant, to both boarders and non-boarders subject to equitable barn rules and fees. Tenant shall make the arenas, either indoor or outdoor depending upon the weather, available without charge for up to four (4) hours per week, on weekends during the school year, for charitable youth-oriented activities. The Tenant shall encourage the development of a riding school for children as well as promote various equestrian clinics and competitions. The public shall not be arbitrarily or unnecessarily excluded from the use of or access to, the exercise and training facilities during such clinics, schools or competitions. Tenant shall manage and maintain leased equipment and facilities, in good working condition and without causing harm. Management of the equestrian facility shall include grass cutting and snow removal, daily upkeep of the barns, arenas and fencing, refuse disposal, septic system, purchase of needed supplies; and other work reasonably required to maintain and operate the equestrian operation and arenas. Tenant shall seek out new and maintain existing arrangements with land owners for Cozy Point LLC to irrigate and hay enough pasture land to support the equestrian facility with feed grass for each year. 3 Tenant shall develop and utilize suitable horse board agreements, release agreements, sublease agreements, incident reports and other grievance procedures documentation, and any other documents necessary and appropriate to protect the City and Tenant, and to collect all horse board, rents, deposits, fees and other income derived from the operations of the equestrian center. Tenant shall provide a copy of all such documents to the City for its approval before their use in the management of the property. The City's review of such documents shall be conducted within seven (7) working days and approval shall not be unreasonably withheld. b. Capital Improvements Capital improvements, which are recognized as an important element of the long- term viability of the leased premises, shall be accomplished through the City of Aspen Asset Management Plan Process. This process, which includes the recommendation, approval, and appropriation of funds for capital maintenance and improvements for facilities within the City of Aspen, will be the mechanism that the City of Aspen will follow to provide funding to the facility. Tenant shall be responsible to maintain a capital maintenance and improvement list which will be reviewed annually with City of Aspen staff. Staff will then prioritize specific items for inclusion in the Asset Management Plan Process contingent upon available funding. Tenant shall work with City in creating, for each calendar year, a list of capital improvement, repair and/or maintenance items that the City of Aspen or Tenant may affect. No such capital improvements, repairs and/or maintenance shall be conducted without the City's prior written consent. All capital improvements, repairs and/or maintenance, including any funded solely by Tenant, of a permanent and fixed nature shall become the property of the City upon termination of this Agreement; provided, however, that any portable, modular, and/or temporary structures paid for by Tenant shall remain the property of Tenant; provided, however, that portable, modular, and/or temporary structures are identified in writing as such before they are constructed or placed into service. C. Repair and Maintenance Tenant shall, at its expense, be required to provide a labor force to support the operations, maintenance and capital improvements to Cozy Point Ranch in the area outlined in EXHIBIT A: Examples include, but are not limited to, trash removal, cleaning of ditches, painting, clean up of storage areas, including snow storage areas, pasture disking, aerating, harrowing, haying and seeding, fence repair and cross fencing, electric fencing, weed management, irrigation system operations and repair, manure management, major and minor building repairs and general land management and any other reasonable labor force to maintenance and keep the property in a visually-pleasing condition while maintaining a fully 4 functional and safe working environment. Tenant also, at its sole expense, shall be responsible for and provide the work force to keep the premises, including roadway, outdoor walks and access ways, in a good, clean and safe condition and do all work and repair necessary to maintain same and to keep it from deteriorating; provided, however, that the parties hereto agree that Tenant's duties set forth in the preceding sentence shall not require Tenant to repair or maintain any portion of the Premises in a condition better than that which existed on the date of this Agreement, or on the date that an improvement is placed into service. All areas used to board horses shall be maintained in a safe, sanitary, and clean condition to properly ensure the health and safety of all animals boarded on the premises. The standards of health, safety, and welfare for the animals shall be those that are common and usual in the business of horse boarding and the operation of an equestrian center. Repairs and replacement of capital infrastructure shall be undertaken by the City as needed and will be effected through the City of Aspen Asset Management Plan Process or on an emergency basis if required to protect the City's assets and/or the Tenant's property and safety. This will be done solely upon City Council's appropriation of necessary funds. d. Conservation Values Tenant shall maintain the facilities and property in concert with the Aspen Valley Land Trust Deed of Conservation Easement in Gross as described in the attached leased land in Exhibit A. e. Agricultural Activities Tenant shall, at its expense, provide to the City of Aspen Parks and Recreation Department/Ranch Manager an annual report which outlines specific Haying operations on Cozy Point Ranch and the other properties providing feed grass to the equestrian facility. This report will include specific information related to pasture name, type and percentage of feed material, normal yield in tons, water sources and any work performed that season. f Storage of Vehicles and Miscellaneous Items Tenant shall allow only those vehicles and other miscellaneous items that are associated with direct facility operations to be stored on the property described in this lease agreement. The facility shall not be operated as a storage facility for any vehicles or other miscellaneous items that are not directly related to equestrian facility operations or agricultural operations. Storage of horse trailers at the facility is allowable. g. Emergency Plans and Safety Procedures 5 In compliance with instructions from the Aspen Fire Protection,District, Tenant shall create, submit and implement specific emergency plans to address the possibility of a fire or other emergency and shall post emergency evacuation plans and educate all employees and inform boarders of these procedures. Fire extinguishers and smoke detectors will be installed and kept in working order in compliance with Aspen Fire Protection District regulations, including in the residences on the property. In addition, an annual safety inspection and audit will be conducted by the Colorado Intergovernmental Risk Sharing Agency (CIRSA), and Tenant agrees to implement any and all recommendations for improvements that may arise from such audit, including but not limited to electrical, mechanicals, and any other utilities. The City will pay for these improvements. If an inspection uncovers a significant capital expenditure that is needed, the City of Aspen and Tenant shall work together to incorporate these necessary improvements into the City of Aspen Asset Management Process. h. Signage The City of Aspen and Tenant shall work together to implement a specific signage plan at the facility that clearly and specifically identifies that the leased property is owned by the City of Aspen. This signage plan shall be designed to provide information to the public about general directions, hours of operations, emergency contact information, recreational opportunities, and other specific information about the facility and property as is deemed appropriate. Tenant 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 Tenant's business, and permission shall not be unreasonably withheld for the posting of a sign for Tenant's business provided that such sign complies with all applicable laws and regulations. Any sign permitted by City shall at all times comply with applicable ordinances, rules and regulations. Directional and all other signage within the ranch property shall be the responsibility and expense of Tenant upon review and approval by the City. The City of Aspen shall bear the responsibility for creating and installing adequate signage to identify Cozy Point Ranch as a City of Aspen Open Space facility. i. Recreational and Educational Opportunities Increased public involvement on Cozy Point Ranch is important to the City of Aspen. Tenant shall contact the City of Aspen Recreation Department and the Special Events Department annually to identify additional opportunities which may exist for developing recreational programming and events at the equestrian center Horse-riding experiences for non-horse owners are encouraged. In addition, non-horse related activities at the facility need to be expanded for children and young adults such as sporting activities, competitions, fund-raising events, hiking, biking, etc 6 Tenant and the COA in partnership shall develop interpretive and educational outreach programs designed to embrace the community in areas not only relating to the equine experience, but opportunities for other entities to hold classes or create experiences for adults and children to learn the history of ranching in the valley and/or experience life on a operating ranch facility as it exists today. Guided hikes, summer camps, self-guided tours, etc., may be included in such efforts. A report of such activities will be sent annually to the City of Aspen Parks and Open Space Director. j. Financial Reporting , Tenant shall submit monthly financial profit and loss reports including income and expense statements to the City of Aspen Finance Department and maintain normal books of account on all operations for review upon request by City officials or staff. k. Complaints and Incident Reports Any incidents of complaints and all issues requiring City action or decisions need to be submitted to the Director of Parks and Open Space. Further, City shall promptly notify Tenant of any complaints received by City regarding the operation of the facility. Tenant shall not discourage the reporting of complaints or issues directly to the City of Aspen which may arise from any source. 1. Permits Tenant shall secure such permits as may be required by Pitkin County, if any, for uses of and activities on the equestrian center property as out lined in Exhibit "A" and notify the City Manager and other organizations and agencies (e.g., Sheriff, Brush Creek Homeowners Association, Snowmass Village, etc.), where appropriate, in advance of all special events on, or uses of, the Premises. m. Liability Insurance Tenant shall maintain such general liability insurance coverage for persons and animals under Tenant's care as shall be required by the City on all uses of and activities on the property and obtain signed Releases of Liability of both the City and the management entity from all boarders and all participants in all equestrian activities on the property, to be preserved for not less than three (3) years. Notwithstanding the foregoing, however, in the event that Tenant is unable to obtain and/or maintain insurance at a reasonable cost, then Tenant may, in its discretion, terminate this Agreement by providing City with not less than sixty (60) days prior written notice of termination. For purposes of this subsection, unreasonable cost shall mean either a 100% annual increase in the cost of premiums or a total cost of insurance premiums in excess of $10,000.00 in any 7 single calendar year. n. Annual Performance Measures The City shall annually engage an equine specialist to provide a professional inspection and assessment of the equine facilities at Cozy'Point Ranch. The City and the Tenant shall mutually agree on the selection of the equine specialist. The specialist will certify that the operations are meeting the standard of professionalism and safety as it relates to the overall equine operations. The specialist will inspect and report on the footing, fencing, safety and any other items that may be deficient regarding the operations or general maintenance of the facility. Tenant shall act as project manager to remedy immediately any deficiencies that may be uncovered. For. any and all items that require a significant capital investment, Tenant shall prepare a summary of improvements, costs, and completion schedule to present to the City to correct the deficiencies. If approved, funding will be effected through the City of Aspen Asset Management Plan Process at the discretion of City Council. o. Business Plan Tenant's business plan has been submitted and has been made a part of this lease. Non-compliance with any goals or objectives set forth,herein shall place Tenant on probation effective immediately for one (1) year, during which time Tenant shall cure any and all deficiencies. The City, at its sole discretion, may terminate this lease with ninety (90) days' notice, if Tenant fails to cure any terms and conditions set forth herein and above within the one (1) year probation period. The City shall use objective standards, when available or possible, to determine Tenant's compliance; however, the City shall be the sole judge of Tenant's compliance with the performance standards set forth above. 7. Duties of the City Relative to the Equestrian Center. During the term of this Agreement the City agrees to the following: a. City shall grant to Tenant the right of quiet enjoyment of the Premises, and to permit Tenant to use the Premises for Tenant's sole use and occupancy, and to manage the Premises, and conduct Tenant's equestrian business on the Premises, in a commercially reasonable manner as may be determined by Tenant in Tenant's sole discretion for so long as Tenant shall abide by the terms of this Agreement. b. In the event that City decides to sell the Premises during the term of this Agreement, then Tenant shall have a right of first refusal to purchase the Premises. Tenant's right shall run for a period of thirty (30) days from the date that City presents to Tenant an executed contract to purchase the Premises. Tenant may exercise such right within such time period by providing City with a 8 written notice stating that Tenant desires to purchase the Premises on the same terms as set forth in said contract. Tenant's failure to send such a notice within the thirty (3 0) day time period shall constitute a waiver of Tenant's right. C. In the event that Tenant has performed its obligations hereunder, and in the event that the term of this Agreement expires, then Tenant shall be given the opportunity to match any competing bids that City may receive to operate the Premises subsequent to the term hereof. Such right shall run for a period of thirty (30) days from the date that City presents to Tenant a document stating the terms upon which a competitor of Tenant desires to operate the Premises. Tenant may exercise such right within such time period by providing City with a written notice stating that Tenant desires to operate the Premises on the same terms as set forth in said contract. Tenant's failure to send such a notice within the thirty (30) day time period shall constitute a waiver of Tenant's right. 8. Utilities. Tenant shall, at its own expense, be responsible for 50% of all utility bills for the operation of the Cozy Point Ranch LLC Equestrian Center. 9. Assignment of Agreement. Tenant shall not assign, pledge, sublease or otherwise dispose of or encumber this Agreement, or the Premises, without the prior written consent of the City. Notwithstanding the foregoing, however, Tenant may sublease portions of the Premises to third parties, from time to time; no such sublet shall relieve Tenant of its obligations hereunder. Tenant shall notify City of all subleases for portions of the Premises. In addition, a transfer of any interest in Cozy Point Ranch, LLC shall be deemed an assignment which shall require the written consent of the City. 10, 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: Patricia K. Watson COZY POINT RANCH, LLC PO Box 2207 Basalt, CO 81621 The parties may change or add such designated person(s)_or addresses as may be necessary from time to time in writing. 9 11. 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 assigns of the parties. 12. 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 concerning this Agreement or matters arising therefrom, the prevailing party shall be awarded its costs and reasonable attorney's fees. 13. Entire Agreement. This instrument 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. 14. 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 the parties. 15. Intent of Amendment. All other terms and provisions of the Lease not specifically amended herein shall remain in full force and effect. However, it is acknowledged and agreed by the parties that it is the intent of this amendment is to limit the Lease to the equestrian facilities and operation and to eliminate the requirements and duties of the Lease with regard to the management of the entire property. If the interpretation of an existing provision is inconsistent with that intent, then the parties will agree to further amend the Lease to reflect that intent. WHEREFORE, the parties, through their duly authorized representatives, have executed this Agreement upon the dates as set forth herein. LESSOR: THE CITY OF ASPEN, COLORADO By: Name: Step n Barwick Title: City Manager AT S / inda Manning, City Clery J LESSEE enan* COZY O CH, LLC By: .I Name:'�Patricia K. Watson Title: Manager 10 010-1 ' F. 1 a LL A f j 1 R !R e !-Legend � ,. Parcel Boundaries Cozy Point Ranch Lease Agreement Area �. 1 . 1 '