HomeMy WebLinkAboutresolution.council.106-25RESOLUTION # 106
(Series of 2025)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND ZG BEV LLC AND 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 ZG Bev 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
bar and concessions services at the Wheeler Opera House between the City of
Aspen and ZG Bev 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.
RESOLVED, APPROVED, AND ADOPTED FINALLY by the City Council
of the City of Aspen on the 22nd day of July 2025.
Rach el E. Ric ards, ayor
I, Mike Sear, duly appointed and acting Deputy 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 on th ereinabove stated.
Mike Sear, Deputy City Clerk
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2025-143 Wheeler Opera House Bar Operations Service
OPERATING AGREEMENT
This Operating Agreement (hereinafter referred to as the "Agreement") is entered into as of
this 1 st of July, 2025, by and between ZG Bev LLC OPERATOR, 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:
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 or the Vault 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 July 1 st 2025, from the City of Aspen to the City of Aspen and
OPERATOR and shall continue until June 30th 2026 unless sooner terminated pursuant to the
terms of this agreement. Unless earlier terminated, this agreement may be renewed for two
(2) consecutive one (1) year terms upon mutual agreement of the parties.
4. Pam. 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.
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5. Non -Assign ability. 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
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 notice, in writing, addressed to the other party, specifying the
effective date of the termination, but in no event less than ninety (90) days from the date of
the notice. 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.
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(i) (i) Worker's Compensation insurance to cover obligations imposed by
applicable laws for any employee engaged in the performance of work under this contract,
and Employers' Liability insurance with minimum limits of ONE MILLION DOLLARS
($1,000,000.00) for each accident, ONE MILLION DOLLARS ($1,000,000.00) disease -
policy limit, and ONE MILLION DOLLARS ($1,000,000.00) disease - each employee.
Evidence of qualified self -insured status may be substituted for the Worker's Compensation
requirements of this paragraph.
(ii) Commercial General Liability insurance with minimum combined single limits of
TWO MILLION DOLLARS ($2,000,000.00) each occurrence and THREE MILLION
DOLLARS ($3,000,000.00) 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 include coverage for explosion, collapse, and underground
hazards. The policy shall contain a severability of interests provision.
(iii) Comprehensive Automobile Liability insurance not required, OPERATOR does not
own, hire or possess any vehicles and confirms it will not require owners, employees or agents
to operate a vehicle while providing services pursuant to this Agreement.
(iv) Professional Liability insurance with the minimum limits of ONE MILLION
DOLLARS ($1,000,000) each claim and TWO MILLION DOLLARS ($2,000,000)
aggregate.
(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 (3 0) days
prior written notice has been given to the City.
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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
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 $424,000.00
per person and $1,195,000 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
Property/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, pertaining to non-
discrimination in employment.
Any business that enters into a contract for goods or services with the City of Aspen or any of its
boards, agencies, or departments shall:
(a) Implement an employment nondiscrimination policy prohibiting discrimination in
hiring, discharging, promoting or demoting, matters of compensation, or any other
employment -related decision or benefit on account of actual or perceived race,
color, religion, national origin, gender, physical or mental disability, age, military
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status, sexual orientation, gender identity, gender expression, or marital or
familial status.
(b) Not discriminate in the performance of the contract on account of actual or
perceived race, color, religion, national origin, gender, physical or mental
disability, age, military status, sexual orientation, gender identity, gender
expression, or marital or familial status.
(c) Incorporate the foregoing provisions in all subcontracts hereunder.
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
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. 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.
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(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 OPERATING Agreement without any liability by the City;
2. Debar or suspend the offending parties from being an 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
4. Recover such value from the offending parties.
16. 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.
(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.
17. 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.
18. 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:
Signed by: DocuSigned by:
By: 1Pt775JV-Q5QQ94Q43Q
� S c r By:
7/2/2025 1 2:09:32 PM PDT
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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 gross sales with 5% paid to the City and the
remainder to OPERATOR once gross receipts exceed One -hundred thousand dollars
($100,000) in each contract year. OPERATOR agrees to pay the City its share of gross sales, if
applicable, within fifteen (15) days of the end of the contract year. If the payment is not
received on or before this date, OPERATOR shall pay the City a late charge of 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 City 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 City, 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. The Acting Bar
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, cups, straws, 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 between thirty (3 0) and sixty (60) minutes prior to each
public event, staying operational until at least intermission or until a
mutually agreed upon time. OPERATOR agrees to schedule between one (1) and three (3)
qualified and trained staff members for every event, according to expected audience volume
with a plan to accommodate an unexpected increase in ticket sales. OPERATOR agrees to
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operate as needed for private events, TBA based on schedule. Wheeler staff will make best
efforts to provide schedule requests at least thirty (30) days in advance and will provide a
forty-eight (48) hours notice for changes to staffing requests.
OPERATOR and City agree to make reasonable accommodations as circumstances
warrant.
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 five (5) business days prior to the first bar opening in
the Term. 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 - $16. All prices will be mutually approved by the
Wheeler and OPERATOR. If prices cannot be mutually agreed upon, the agreement will be
terminated. OPERATOR will prioritize acquiring and serving local, Aspen -based products,
where available. OPERATOR and Wheeler management will work collaboratively to
identify opportunities for discounts or specials to encourage early arrival of patrons and to
enhance the patron experience. Wheeler will add 20% gratuity to bar purchases for Wheeler
funded events unless negotiated beforehand.
Appearance:
OPERATOR staff will maintain a professional appearance while working at the Wheeler.
Standard uniform will be a black, collared shirt and black or dark pants. All clothing should
be clean, pressed, and free of rips, holes, or tears. Logos should be avoided or minimal in
appearance on all working staff.
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
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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. Any violations of state or local liquor
code provisions will be grounds for immediate termination of this agreement.
Non -Exclusivity:
OPERATOR understands and acknowledges that the use of the premises as set forth herein
is non-exclusive. The City and Wheeler maintain ultimate control of the physical space and
reserve the right to utilize and activate the Wheeler Bar space for any purposes, including
but not limited to other service and retail purposes, outside of Operating Schedule set forth
in this Exhibit A.
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