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HomeMy WebLinkAboutresolution.council.009-25RESOLUTION 4009 (Series of 2025) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND ASPEN PICKLEBALL, LLC 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 the operation of the Iselin Courts, between the City of Aspen and Aspen Pickleball, 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 that Contract for Professional Services between the City of Aspen and Aspen Pickleball, 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 City Council of the City of Aspen on the 28th day of January 2025, 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, January 28, 2028. Nicole Henning, City �lerk Docusign Envelope ID: FCF2A3A3-E57940D3-87E8-180E99112A8A 2024-395 AGREEMENT FOR THE LEASE AND OPERA COURTS THIS AGREEMENT entered into at Aspen, Colorado, this 13th day of January, 2025 by and between the CITY OF ASPEN, COLORADO, a municipal corporation and home - rule city ("hereinafter "City"), and Aspen Pickleball, LLC (hereinafter "Operator"). WITNESSETH WHEREAS, the City is the owner of the Iselin Courts in Aspen, Colorado, and desires to contract with an operator to provide certain services during the summer seasons for the operation of a Pickleball and Tennis Program at the Iselin Courts hereinafter referred to as the "Premises"; and WHEREAS, Operator has agreed to provide certain services relative to the summer use of the Iselin Courts, as well as provide services regarding the general operation of the Iselin Courts. NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions contained herein, the parties agree as follows: l . Term. The City herby grants Operator the exclusive right to use the Premises for the period of May 1st to October 3 lst of each calendar year (each a "Lease Year") beginning on May 1, 2025, extending through October 31, 2028. Operator has an option to continue through November 30th of each year, which Operator may exercise by delivering the City written notice of Operator's intent to exercise this extension option on or before October 1st of the year in question. Upon mutual agreement by the parties, the Operator may renew this Agreement for an additional three (3) years, subject to the same terms and conditions set forth herein as may be subsequently amended by the parties, by delivering the City written notice of Operator's intent to exercise this renewal option on or before October 31, 2028. 2. Premises. The Premises subject to this Lease Agreement shall be 7 pickleball courts and 1 tennis court, together with non-exclusive rights to ingress, egress and parking in the adjacent parking lot, all located at street address 0861 Maroon Creek Road, Aspen, CO 81611. 3. Use. The Premises may be used by Operator solely for the purpose of operating tennis & pick 1 e b a 11 programming and providing services related thereto, including, but not limited to, retail sales of equipment, clothing and supplies, renting equipment to the public, for lessons, for any and all uses reasonably attendant to pickleball and tennis operations. Operator shall not use the Premises for any other purposes without the City's written consent. Operator's use and occupancy of the above -described Premises shall comply with the rules, regulations and ordinances of any governmental authority having jurisdiction over the Premises or the activities performed thereon. Additionally, Operator shall not use the Premises in any manner that will create an increase in the rate of insurance or a cancellation of any insurance policy, even if such use may be in furtherance of Operator's retail sales. Operator shall not keep, use or sell anything prohibited by any policy of fire 1 Docusign Envelope ID: FCF2A3A3-E57940D3-87E8-180E99112A8A insurance covering the Premises. 4. Time of Occupancy, Acceptance and Surrender of Premises. Operator shall be entitled to use and occupy the Premises during the summer season as set forth at Paragraph 1 herein. Occupancy of the Premises by the Operator shall be construed as recognition that the Premises are in a good state of repair and in sanitary condition. Operator will take use and occupancy of the Premises throughout the dates outlined above (including any applicable extensions of the season through October 31 st), of each year this agreement is in effect. The provision herein for use and occupancy of the Premises may be varied on written understanding of the parties. Operator shall coordinate with the City to ensure change in possession is orderly and timely. A representative of the City shall inspect the Premises at the beginning and end of each season's occupancy, with a representative from Operator to assess if any repairs are necessary and who shall be responsible for them. 5. Rent. Operator agrees to pay ten percent (10%) of all gross sales up to $100,000 and fifteen percent (15%) of all gross sales over $100,000 as defined herein. Operator shall pay its first installment of percentage rent on or before the fifteenth (15th) day of the calendar month immediately after the one in which the percentage rent became effective, and thereafter it shall pay the required percent of each month's gross sales by the fifteenth (15th) day of the following month. Operator shall also submit to City an itemized statement of gross sales (as defined below) and a sales tax report for the preceding month on or before the fifteenth (15th) day of each calendar month during the term of this Lease and any renewal, extensions, or holding over hereunder. i) In addition, within thirty (30) days after the end of each Lease Year, Operator shall deliver to City a written statement signed by a certified public accountant or by some other person acceptable to City, setting forth the amount of Operator's gross sales for the preceding Lease Year. Accountant or other person shall certify that the gross sales have been computed in accordance with the definition given below, and the statement shall be sufficiently detailed to show it was in fact prepared in accordance with such definition. If the percentage rent for the Lease Year is more than the total thereof actually paid by Operator, Operator shall pay the balance due to City within thirty (30) days of delivery of the annual statement. The term "gross sales" as used in this Lease Agreement shall mean the full amount of the actual sales price of all merchandise, services sold for cash or credit in or from the Leased Premises by the Operator, charges for use of courts, cost of membership packages, or any other income derived from the premises. The figure for gross sales will include deposits not refunded to customers, orders of any kind received or filled at the leased Premises, receipts from vending machines located upon the leased Premises, and any other receipts which the Operator ordinarily would credit to his business. Each credit or installment sale will be treated as a sale for the full price in the month it is made, and there will be no deductions for uncollected accounts or bad debts. iii) The term "gross sales" as used in this Lease Agreement shall not include: 2 Docusign Envelope ID: FCF2A3A3-E57940D3-87E8-180E99112A8A 1) refunds or discounts extended to customers; 2) refunds received by Operator from returns to shippers and manufacturers; 3) sales of trade fixtures or operating equipment; 4) sums received in settlement of claims of loss or damage of merchandise; 5) retail sales tax recorded at the time of each sale and expressly charged to the customer; 6) postage charged to customers; 7) co-operative advertising revenues provided by suppliers; or 8) any property or sales taxes paid by Operator. iv) In operating on the leased Premises, the Operator agrees to issue aserially- numbered duplicate sales slip, invoice, non-resettable cash register receipt, or other record approved by City, with each sale of any kind. During the term of the Lease Agreement, Operator shall keep accurate records of all his operations. These records shall conform to generally accepted accounting practices, and shall include records of gross sales and of receipts and deliveries of all merchandise. Operator shall keep all the documents relating to Operator's operations for at least thirty-six (36) months from the end of the Lease Year to which they apply. If any audit is required, or Operator and City disagree about the rent, Operator will keep its records until the audit is completed or the disagreement is settled. v) At any reasonable time, and following at least twenty-four (24) hours' notice in writing to Operator, City or City's authorized representative may audit any of Operator ' s records of gross sales. If, when City audits the records for a Lease Year based on normal accounting procedures, it finds that the Operator has understated its gross sales for the Lease Year by five percent (5 %) or more, Operator shall be required to pay for the audit, and shall promptly deliver to City the difference Operator owes it, plus interest on such difference at the rate of eight percent (8 %) per annum from the first day of the current Lease Year to the date such difference is paid. If such audit discloses that Operator has understated his gross sales for that Lease Year by five percent (5 %) or more, City shall be permitted to treat such event as a material default hereunder. In this matter, the report of City's accountant shall be binding and conclusive. 6. Access to Premises. City shall be entitled to enter upon the Premises at all reasonable hours for the purpose of inspecting the same, preventing waste or loss, or enforcing any of City's rights hereunder. 7. Duties of Operator Relative to Operation of Tennis Center. During the term of this Agreement the Operator agrees: a. To provide the Pick 1 e b a l l / Tennis -related services described in this Agreement for each summer season for which this Lease Agreement is in effect. t� Docusign Envelope ID: FCF2A3A3-E57940D3-87E8-180E99112A8A b. To employ and maintain for the benefit of the parties, at Operator's own cost and expense, employees of sufficient number and qualifications to operate and manage the Premises consistent with the highest professional standards of quality, courtesy, and customer service. perform the following general duties, at the discretion of Operator, with pricing applicable only for the first Lease Year and thereafter adjusted by Operator following the written approval of the Recreation Department, which approval shall not be unreasonably withheld: i. Operate a pickleball and tennis programming for ages five to adult. ii. Offer monthly and seasonal membership packages Operator will offer memberships for community, ranging between $85 and $150 per month 111. Offer Youth and Adult Group Clinic Programs fee range from $25487 per clinic iv. Offer Private instruction fee range from $25 -$200 per session v. Offer league and tournament play vi. Offer Open Court Community Play vii. Provide the City of Aspen with monthly reports showing activity counts, revenues and expenses. d. To keep full records and accounts in regard to the operation and management of the Premises, which records and accounts shall be available at the end of the summer season for inspection by the City's auditors and/or Finance Director. e. To make available for retail sale such merchandise as is commonly sold in Pickleball/Tennis-oriented operations; Operator agrees to maintain an adequate inventory of such merchandise. Operator shall devote its best energies and adequate time to the promotion of sales at the Premises and may engage in similar sales at its business locations in the City of Aspen, provided such off -premises sales do not interfere with Operator's duties hereunder. 8. Duties of the City Relative to the Tennis Center. During the term of this Agreement the City agrees: a. To maintain the courts property from May 1 until October 31. As Operator is largely dependent on the courts for its revenues, should the City be unable to continue the maintenance of the courts for any reason Operator shall be released from its obligations under the lease until such time as the City is able to resume its duties in this regard. Docusign Envelope ID: FCF2A3A3-E57940D3-87E8-180E99112A8A b. To permit Operator to use the Premises for Operator's sole use and occupancy with respect to its duties and privileges under this Agreement. c. To set-up and take down and maintain windscreens, divider nets, court nets, courts, and fixed assets (such as the court surfaces, fences, etc). Replacement of fixed assets must go through a multiple year request process through the City of Aspen. At the end of each season Operator can request replacement of assets for next year. d. City shall maintain irrigation system relative to the courts. 9. Utilities. Utilities, including water, trash/recycling, and electric, will be provided and paid by the City of Aspen. 10. Personal Property. All personal property and trade fixtures placed on the Premises shall be at Operator's sole risk and City shall not be liable for damage to or loss of such personal property or trade fixtures arising from the acts or neglect of Operator, its agents or employees. Any personal property or trade fixtures of Operator or anyone claiming under Operator, which remains on the. Premises after the date upon which the Premises is 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. 11. Taxes. In the event any taxes are levied and assessed upon the Premises or upon the improvements, fixtures or personal property of the Operator during the term of Operator's occupancy of the Premises or arising therefrom, or upon the leasehold or possessory interests as created through this lease, Operator shall be solely responsible to satisfy and pay all such taxes in a timely fashion. Operator shall not allow any liens for taxes or assessments to exist with respect to the Premises, except that Operator may permit such taxes or assessment to remain unpaid while pursuing any good faith contest or appeal of same. 12. Indemnification. Operator agrees to indemnify and hold harmless the City, its officers and employees, from and against all liability, claims, and demands, on account of injury, loss, or damage, including, without limitation, claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other similar loss ,which arise out of or are in any manner connected with this Agreement, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the omission, error, or negligence of the Operator , any subcontractor of the Operator, or which arises out of any workmen's compensation claim of any employee of the Operator or of any employee of any subcontractor of the Operator. To the extent allowed by law, the City agrees to indemnify and hold harmless the Operator, its officers and employees, from and against all liability, claims, and demands, on account of injury, loss, or damage, including, without limitation, claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other similar loss, which arise out of or are in any manner connected with this Agreement, if such injury, loss, or damage is caused in 5 Docusign Envelope ID: FCF2A3A3-E57940D3-87E8-180E99112A8A whole or in part by, or is claimed to be caused in whole or in part by, the omission, error, or negligence of the City, any subcontractor of the City, or arises out of any workmen's compensation claim of any employee of the City or of any employee of any subcontractor of the City. 13. Public Liability Insurance. Operator agrees to furnish City with certificates) of insurance as proof that it has secured and paid for a policy of public liability insurance covering all public risks related to the leasing, use, occupancy, maintenance, operation or location of the Premises. The insurance shall be procured from a company authorized to do business in the State of Colorado and be satisfactory to City. The amount of this insurance, without co-insurance clauses, shall not be less than the maximum liability that can be imposed upon the City of Aspen under the laws of the State of Colorado found at C.R.S. 244 04 01 et seq., as amended. At present, such amounts shall be as follows: $350,000.00 for any injury to one person in any single occurrence $990,000.00 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. 14. Premises Insurance. During the full term of this Agreement, Operator, at its sole cost and expense, shall also cause all of the furniture, fixtures, and equipment (excluding the ball machines) in the premises to be kept insured, without co-insurance clauses, to the full insurable value against the perils of wind, storm, hail, lightning, explosion, fire and like perils. "Full insurance value" means the cost, as of the date of loss, for replacement of the damaged or destroyed property in a new condition with materials of like size, kind and quality. The insurance shall stand as primary insurance for the furniture, fixtures, and equipment in the Premises to be procured from a company authorized to do business in the State of Colorado and be satisfactory to the City. All policies as required herein shall contain a waiver of subrogation by the insurer against City. A complete list of equipment needs will be established at the beginning and end of each season. 15. Termination Due to Fire or Similar Catastrophe. If negligent on part of operator , the Premises shall be damaged by fire or other catastrophe so as to render said Premises wholly inoperable, and if such damage is so great that a competent licensed architect in good standing in Pitkin County, Colorado, as selected by the City within fourteen (14) days from the date of loss, shall certify in writing to the City and Operator that the Premises, with reasonable diligence, cannot be made fit for occupancy within ninety (90) days from the happening of the occurrence of the damage, then this Agreement may terminate and City may re-enter and take possession. Such a termination of the Agreement shall not forgive Operator's obligations to return the Premises to City in as good repair as when operator originally assumed possession thereof, regular and ordinary wear and tear excepting. Alternatively, Operator shall subordinate its rights and interests in any insurance proceeds as provided for in any insurance policy as required by this Agreement. If, however, the 0 Docusign Envelope ID: FCF2A3A3-E57940D3-87E8-180E99112A8A damage is not such as to prevent reoccupation and use of the Premises within ninety (90) days, then repairs thereto shall be undertaken by Operator with all reasonable speed to restore the Premises to its former condition and the Agreement shall remain in effect. Operator's duties and obligations to provide services and to pay rent to the City as herein set forth shall be suspended during those time periods wherein the Premises are unfit for normal business activities due to fire or other catastrophe, and/or repair activities associated therewith. l 6. City to benamed a Co -Insured o r Additional I n s ur e d . Operator shall name City as co-insured or additional insured on all insurance policies and such policies shall include a provision that written notice of any non -renewal, cancellation or material change in a policy by the insurer shall be delivered to City thirty (30) days in advance of the effective date. 17. Repairs and Alterations by Operator. Operator, upon City's written consent, may, at its own expense, make reasonable and necessary alterations or improvements to the Premises. All alterations, additions and improvements shall be performed in a workmanlike manner, in accordance with all applicable building and safety codes, and shall not weaken or impair the structural strength or lessen the value of the Premises. All alterations, additions and improvements made in or to the Premises shall be the property of City and remain and be surrendered with the Premises upon termination of this Agreement. Operator agrees that prior to any construction or installation of alternations, additions or improvements, Operator shall post on the Premises in a conspicuous place a notice of non -liability for mechanic's lien as specified at C.R.S. Section 38-22405 on behalf of the City and shall notify City of such posting and the exact location of same. Perfection of a mechanic's lien against the Premises as a result of Operator's acts or omissions may be treated as a material breach of this lease. 18. Repairs and Alterations by City. City reserves the right, from time to time, at its own expense and by its officials, employees and contractors, to make such alterations, renovations or repairs in and about the Premises, other than those noted above as required by Operator, as City deems necessary or desirable and Operator covenants to make no claim against City for any interference with its interest as herein provided in the Premises. City shall provide reasonable notice to Operator in advance of any intent to undertake alterations or repairs as authorized in this paragraph and all work shall be performed at such times as mutually agreed to between the parties so as to eliminate or minimize any disruption of Operator's business. 19. Condemnation. If dur ing the term of this Agreement, or any renewal of it, the whole or part of the Premises, or such portion as will make the Premises unusable for the purpose leased, or the leasehold interest, be condemned by public authority, including City, for public use, then this Agreement shall cease as of the date of the vesting of title in the Premises in such condemning authority, or when possession is given to such authority, whichever event occurs first. Operator shall not be entitled to any part of any condemnation award for the value of the unexpired term of this Agreement or for any other estate or interest in the Premises, such amount belonging entirely to City. 20. Assignment of Agreement. Operator shall not assign, pledge, sublease or otherwise dispose of or encumber this lease, or the leased Premises, without the prior written consent of the City, 7 Docusign Envelope ID: FCF2A3A3-E57940D3-87E8-180E99112A8A which consent shall not be unreasonably withheld. Operator shall, likewise, not permit any third party to occupy or use the Premises absent the prior written consent of the City. 21. Ste. Operator shall not place any signs upon the Premises or upon the buildings except of such design and construction as may be permitted by City. It is understood by the parties that placement of an identification sign or signs is important and necessary to Operator's business. Any sign permitted by City shall at all times comply with applicable ordinances, rules and regulations. 22. Breach by Operator Defined. If Operator shall fail to timely comply with any of the terms or conditions of this Agreement or any notice given under it, or shall become insolvent, or shall have or attempt to make an assignment for the benefit of creditors, or if any of its property be attached and such attachment is not promptly released, or if an execution be issued against it, or if a petition be filed by or against it, to have it adjudicated a bankrupt, or if a trustee or receiver shall be created or appointed to take charge of its assets, or if it shall abandon the Premises for a period of more than seventy-two (72) hours, then at any time afterwards City may treat such act or omission as a breach of this Agreement and, at its option, enter into the Premises and remove all persons and take and retain possession thereof either with process of law. 23. City's Remedy for Breach. Any breach, default or failure by Operator to perform any of the duties or obligations assumed by Operator under this Agreement shall be cause for termination of the Agreement by City in the manner set forth in this paragraph. City shall deliver to Operator thirty (30) days' prior written notice of its intention to terminate this Agreement, including in the notice a reasonable description of the breach, default or failure. If within that thirty (30) days Operator shall fail or refuse to cure, adjust or correct the breach, default or failure to the reasonable satisfaction of City, the City shall have the right to declare this Agreement terminated and all rights, powers and privileges of Operator as provided through the Agreement shall cease, and Operator shall immediately vacate the entire Premises and shall make no claim of any kind against City by reason of the termination. The thirty (30) days' prior written notice shall be conclusively determined to have been delivered to Operator by the posting of same upon the main business entrance to the Premises, or at the time it is deposited in the U.S. Mail, certified, postage prepaid, addressed to the address set forth at Paragraph 29 herein. 24. Non -Waiver o f Rights. Any failure by City to so terminate this Agreement as herein provided after the breach, default or failure by Operator to adhere to the terms of the Agreement shall not be deemed or construed to be a waiver or continuing waiver by City ofany rights to terminate the Agreement for any present or subsequent breach, default or failure. 25. Termination by Operator. Operator may terminate this Agreement and be relieved of all obligations hereunder by providing City thirty (30) days' written notice of its intent to terminate. Operator shall provide a full accounting of all funds, costs and equipment upon termination. 26. Non -Discrimination. Operator agrees to comply with all laws, ordinances, rules and regulations that may pertain or apply to the Premises and its use. In performing under the Agreement, Operator shall not discriminate against any worker, employee or job applicant, or any member of the public, because of race, color, creed, religion, ancestry, national origin, sex, age, marital E'� Docusign Envelope ID: FCF2A3A3-E57940D3-87E8-180E99112A8A status, physical handicap, affectional or sexual orientation, family responsibility or political affiliation, nor otherwise commit an unfair employment practice. 27. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this Agreement shall result in or be construed as establishing an employment relationship. To the extent that this Agreement may be construed as requiring Operator to provide services to or on behalf of City, Operator shall be, and shall perform as, an independent contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Operator shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this Agreement. The manner and means of conducting the work are under the sole control of operator. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Operator. Operator shall be solely and entirely responsible for its acts and for the acts of Operator's agents, employees, servants and subcontractors during the performance of this Agreement. Operator shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for, *payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Operator and/or Operator's employees engaged in the performance of the services agreed to herein. 28. 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 427 Rio Grande Place Aspen, Colorado 81611 For Operator: Aspen Pickleball LLC The parties may change or add such designated persons) or addresses as maybe necessary from time to time in writing. 29. i-ndinor 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. 30. 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. 0 Docusign Envelope ID: FCF2A3A3-E57940D3-87E8-180E99112A8A 31. Entire Agreement. This instrument constitutes the entire concerning the Premises and shall supplant and supersede between the parties pertinent to the Premises. Any prior or written agreement that purports to vary from the terms as set and of no effect. Agreement by the parties any previous agreements contemporaneous oral or forth herein shall be void 32. 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. WHEREFORE, the parties, through their duly authorized representatives, have executed this Agreement upon the dates as forth herein. PEN: �qya, �, � 1/30/2025 � 9:28:45 AM PST Sara Ott, City Manager Signed by: OPERATOR: It(& *5tA& LB2894A029CD5440.11 By: Lauren Andersen Title: Owner of Aspen Pi ckl ebal 1 Date: 1/21/2025 � 3:39:54 PM MST 10