HomeMy WebLinkAboutresolution.council.153-25RESOLUTION NO. 153
(SERIES OF 2025)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING AN
EARLY TERMINATION AGREEMENT CONCERNING PROPERTY
LOCATED AT 455 RIO GRANDE PLACE, ASPEN, COLORADO
WHEREAS, there has been submitted to the City Council an Early Termination
Agreement by and between the City of Aspen, Yogi's LLC, and Yogi's LLC's third -party
guarantor, a true and accurate copy of which is attached hereto as "Exhibit A", and,
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN AS FOLLOWS:
That the City Council of the City of Aspen hereby approves the Early Termination
Agreement by and between the City of Aspen, Yogi's LLC, and Yogi's LLC's third party
guarantor to terminate the lease concerning property located at 455 Rio Grande Place,
Aspen, Colorado prior to the lease's expiration date, 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 11... day of November 2025,
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, November 1 lth, 2025.
Nicole Hennin�, City Clerk
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EARLY TERMINATION AGREEMENT
THIS EARLY TERMINATION AGREEMENT (this "Agreement") is made as of
November , 2025, by and among (1) The City of Aspen, a Colorado home rule municipality
("Landlord" or "City"), having an address of 427 Rio Grande Place, Aspen, CO 81611; (ii)
Yogi's, LLC, a Colorado limited liability company and Brendan Berl (collectively, "Tenant"),
having an address of 488 Castle Creek Rd., Unit 101, Aspen, CO 81611; and (III
Scott and Carly
Weber (collectively, "Weber"), having an address of P.O. Box 1381, Aspen, CO 81612.
Recitals
WHEREAS, Landlord and Tenant are parties to that certain Lease Agreement dated April
3, 2023 (the "Lease"), pursuant to which Landlord leased to Tenant a portion of certain real
property in Pitkin County, Colorado, known as the Rio Grande Building, 455 Rio Grande Place,
Aspen, CO 81611, as described and depicted in the Lease as the "Leased Premises" and
"Additional Leased Premises." The Leased Premises and Additional Leased Premises are
referred to collectively in this Agreement as the "Premises." Capitalized terms used herein that
are not otherwise defined shall have the meaning assigned to them in the Lease.
WHEREAS, together with the execution of the Lease, Brendan Berl ("Original
Guarantor") executed a Guaranty of Lease, personally guaranteeing the obligations and liabilities
of Tenant under the Lease (the "Original Guaranty").
WHEREAS, Tenant has deposited a security deposit in the amount of $10,000.00 (the
"Deposit") with Landlord pursuant to the Lease, which Deposit Landlord is holding on behalf of
Tenant.
WHEREAS, the Lease expires on April 14, 2028.
WHEREAS, on May 8, 2025, Landlord. initiated eviction proceedings against Tenant
based on Tenant's failure to pay rent due under the Lease. Landlord dismissed those proceedings
on the condition that, among other things, Tenant find a new tenant for the Leased Premises.
WHEREAS, after several proposals to assign the Lease that were not acceptable to
Landlord, Landlord now desires to purchase from Tenant all of its right, title, and interest in and
to the Lease, the Premises, and the furniture, fixtures, and equipment in the Premises from the
Tenant, and Tenant desires to terminate the Lease prior to the termination date set forth in the
Lease under the terms and conditions set forth herein.
WHEREAS, in connection with its buildout of the Leased Premises, Tenant obtained a
construction loan from FirstBank in the principal amount of $920,000.00 ("FirstBank Loan"),
which Weber personally guaranteed. FirstBank filed a UCC Financing Statement securing the
FirstBank Loan against certain assets of Tenant, as set forth in the UCC filed with the Colorado
Secretary of State on February 20, 2024 ("FirstBank's UCC4 Financing Statement").
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WHEREAS, Weber is willing to take actions to secure FirstBank's agreement to release
the Premises, the Lease, and the assets of Tenant from FirstBank's UCC-I Financing Statement to
facilitate Landlord's buy out of the Lease from the Tenant as set forth herein and so as to ensure
that the Leased Premises may quickly and successfully reopen as a restaurant accessible and
affordable to Aspen residents.
WHEREAS, at the onset of the Lease, the Premises were not finished and did not have a
commercial kitchen. The City recognizes that the First Bank Loan financed the construction of a
commercial restaurant kitchen, interior finishes, flooring, wall treatments, fire suppression system,
and other improvements necessary to operate a public restaurant on the Premises.
WHEREAS, the City and its future tenants may benefit from the improvements made by
Tenant, and, because of those improvements, the City may immediately lease the restaurant space
to a restaurant operator.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Termination of Lease. As of the Effective Date, Tenant agrees to relinquish all
right, title, and interest in, to, and under the Lease, the Premises, and any of Tenant's personal
property in the Premises, including, but not limited to, the right to recover, or make demand for
recovery of any refund, overpayment, or other sum which is now or hereafter may become due
and owing from Landlord as a result of the reconciliation of Lease expenses, together with all of
the rights, privileges and appurtenances with respect to the leasehold estate created by the Lease,
and all of Tenant's right, title, and interest in and to any remaining leasehold improvements located
in the Premises, upon all of the terms and conditions herein set forth. Tenant will surrender the
applicable Premises in good, clean condition, all in accordance with the terms of the respective
Lease and all fixtures and equipment located in the Premises which cannot be removed without
damage to the Premises. Any personal property which remains in the Premises on the Effective
Date shall be deemed abandoned by Tenant and conveyed to Landlord, and Landlord may remove
and dispose of the personal property without liability. If Tenant fails to surrender the Premises on
the Effective Date, in addition to all other remedies available to Landlord under the Leases, Tenant
shall pay to Landlord, as liquidated damages, the sum of $1,000 per day from the Effective Date
of this agreement until the Tenant surrenders the Premises.
2. Consideration. As consideration for Tenant's early termination of the Lease and
vacation of the Premises and other covenants and agreements provided for herein, Landlord shall
(1) pay to Tenant, in good and sufficient funds via wire transfer, the sum of FIFTY-FIVE
THOUSAND DOLLARS AND 00/100 ($55,000.00) (the "Tenant Payment"), and (ii) pay to
FirstBank in good and sufficient funds via wire transfer the sum of TWO HUNDRED AND FIFTY
THOUSAND AND 00/100 ($250,000.00) to be applied to the FirstBank Loan (the "FirstBank
Payment"). The Tenant Payment shall be wired to Tenant's attorney's trust account within three
business days of mutual execution of this Agreement. The FirstBank Payment shall be wired in
accordance with wiring instructions provided by Weber within three business days of mutual
execution of this Agreement.
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3. Deposit. Landlord shall retain $,5,000 of the Deposit which shall be used to clean
the Premises and repair equipment on the Premises. The remaining $5,000 of the Deposit shall be
returned to Tenant and is included in the Tenant Payment amount set forth in paragraph 2 above.
4. Release of Tenant and Original Guarantor. As of the Effective Date, Tenant
shall automatically be released of all obligations and liabilities arising under the Lease except to
the extent expressly provided for in this Agreement. Also as of the Effective Date, the Original
Guarantor shall automatically be released of all obligations and liabilities arising under the
Original Guaranty. Landlord consents to the release of Tenant and Original Guarantor except to
the extent expressly provided for in this Agreement.
5. Assignment and Assumption of Equipment Leases.
(a) Tenant hereby assigns to Landlord as of the Effective Date all of Tenant's
right, title, interest, and obligations in, under, and to (1) the Commercial Equipment Lease
Agreement between Tenant, as Lessee, and TimePayment Corp., as Lessor (the "TPC
Lease"), and (ii) the Master Equipment Lease Agreement between Tenant, as Customer,
and Geneva Capital, LLC, as Owner (the "Geneva Lease"); and (iii) the "Equipment"
described in each of the TPC Lease and Geneva Lease, and Landlord assumes the same.
(b) Without limiting the generality of Section 5(a), above, Landlord (i) accepts
and agrees to perform all of the payment and other obligations under the TPC Lease and
Geneva Lease as of the Effective Date; (ii) accepts the Equipment in its as -is, where is
condition with all faults; and (iii) accepts the Equipment subject to the security interests
set forth in the TPC Lease and Geneva Lease and the UCC4 Financing Statements
perfecting the same.
(c) Tenant acknowledges and accepts that the UCC-1 Financing Statements
filed by TimePayment Corp. and Geneva Capital, LLC against Tenant as "debtor" will
remain of record unless and until amended or terminated by TimePayment Corp. and/or
Geneva Capital, LLC. In the event Landlord pays in full all amounts owed under the TPC
Lease and/or Geneva Lease, Landlord agrees to use best efforts to cause the UCC-
Financing Statement(s) to be timely and fully terminated so as to release Tenant and the
Equipment therefrom.
(d) Tenant shall execute and deliver any further assignments, instruments of
transfer, bills of sale, releases, or conveyances which may be reasonably necessary to allow
the Landlord to negotiate the terms, conditions, or settlements of the TPC Lease and the
Geneva Lease.
6. Tenant Representations. Tenant acknowledges, agrees, certifies, and represents
to Landlord as follows:
(a) Tenant has not assigned, transferred, or pledged the Lease or any interest therein or
sublet all or any portion of the Premises and, as of the date hereof. Tenant has not executed
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any subordination, non -disturbance, and attornment agreements with respect to the Lease,
and Tenant has not received any notice of any mortgagee of the Premises to which notices
of default must be sent under the Lease; and
(b) Tenant and the party executing this Agreement on behalf of Tenant is authorized to
do so and agrees, upon request, to deliver to Landlord a resolution or similar document to
that effect.
7. Landlord Concessions and Agreements. All unpaid Base Rent, Percentage of
Gross Sales rent, common maintenance, insurance, utilities, and other charges, late charges,
interest, and all other amounts due and owing from Tenant to Landlord as of the Effective Date
are hereby waived and forgiven.
8. FirstBank's UCC-1 Financing Statement. Conditioned upon Landlord's
payment of the FirstBank Payment in accordance with this Agreement, Weber shall cause
FirstBank to release the City of Aspen, the Premises, the Lease, and the assets of Tenant from
FirstBank's UCC- I Financing Statement or otherwise terminate the UCC-1 no later than four (4)
business days after Landlord's delivery of the FirstBank Payment.
9. Indemnifications.
(a) By Tenant. Tenant and Brendan Berl, individually (collectively, the
"Tenant Parties") agree, jointly and severally, to indemnify and hold harmless the
Landlord, and its respective members, managers, elected and appointed officials, agents,
representatives, heirs, successors, and assigns from and against any and all claims, actions,
causes of action, liens, liabilities, obligations, judgments, costs, and expenses (including
reasonable attorney fees) of any kind or nature, whether known or unknown, arising out of
or related to (1) the Premises, (11 the construction of the Premises, (III
Tenant's use of the
Premises and operation of its business at the Premises, and (iv) any financial obligations
owed by Tenant to any third party, excluding only those obligations assumed by Landlord
under this Agreement, prior to the Effective Date.
(b) By Weber. Conditioned upon Landlord's payment of the FirstBank
Payment in accordance with this Agreement, Weber agrees, jointly and severally, to
indemnify and hold harmless the Landlord and its respective members, managers, elected
and appointed officials, agents, representatives, heirs, successors, and assigns from and
against any and all claims, actions, causes of action, liens, liabilities, obligations,
judgments, costs, and expenses (including reasonable attorney fees) of any kind or nature,
whether known or unknown, arising out of or related to FirstBank's UCC4 Financing
Statement.
10. Assurances. All parties acknowledge and agree that they will hereafter execute and
deliver any further assignments, instruments of transfer, bills of sale, releases, or conveyances
which may be reasonably necessary to fulfill all of the parties' obligations and agreements
hereunder and otherwise effectuate the intent and transactions contemplated herein.
11. Conditions of the Premises. Landlord accepts the Premises "AS IS" in the
condition existing on the Effective Date.
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12. Disputes and Attorneys' Fees. The laws of the State of Colorado shall govern the
validity, performance and enforcement of this Agreement, without reference to the conflicts of law
principles of that State. With respect to any dispute, legal action of any kind arising from the terms
of this Agreement that any party may have, it is expressly agreed that such action shall be brought
in the District Court of Pitkin County in the State of Colorado, and that such court shall be deemed
to be the court of sole and exclusive jurisdiction and venue for the bringing of such action. In the
event it becomes necessary for either party to employ counsel for advice regarding a default, or to
respond, intervene, or otherwise become involved in any suit or proceeding Each party shall be
responsible for its own attorneys' fees.
13. Effective Date. The "Effective Date" of this Agreement shall be the date on which
the last of Landlord, Tenant, and Weber execute this Agreement.
14. Approval by City Council. The Parties agree that any remedies the City may have
for default under the Lease shall be stayed until this agreement is approved by the Aspen City
Council by Resolution at a public meeting, which approval shall be at the sole and absolute
discretion of City Council. If a Resolution of approval is not adopted on or before November 18,
2025, this agreement and all terms and conditions set forth herein shall be deemed void ab 10nitio.
15. Nonreliance. The Parties to this Agreement expressly assume the risks that the
facts or law may be, or become, different from the facts or law as presently believed by the Parties.
The Parties represent that they have had the opportunity to consult with, and/or have consulted
with counsel regarding this Agreement.
16. Entire Agreement. The Parties represent and agree that no promise, inducement,
or agreement other than that expressed herein has been made to them and that this Agreement is
fully integrated, supersedes all prior agreements, understandings, statements or representations and
contains the entire agreement between them with respect to the subject matter hereof.
17. Voluntary and Informed Assent. The Parties represent and agree that they have
read and fully understand this Agreement, that they are fully competent to manage their own
personal and business affairs and to enter into and sign this Agreement, and that they are executing
this Agreement voluntarily, free of any duress or coercion.
18. No Waiver. No failure to exercise and no delay in exercising any right, power or
remedy under this Agreement shall impair any right, power or remedy which any Party may have,
or shall any such delay be construed to be a waiver of any such rights, powers or remedies or an
acquiescence in any breach or default under the Agreement, nor shall any waiver of any breach or
default of any Party be deemed a waiver of any default or breach subsequently appearing.
19. Miscellaneous. This Agreement may not be amended, modified or terminated
except by an instrument, in writing, executed by the parties hereto. This Agreement may be
executed in any number of counterparts which, together, will constitute one and the same
instrument. This Agreement may be executed by electronic means, and a facsimile or other
electronic signature will constitute an original signature for purpose of the execution of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement, and the Agreement
shall be effective as of the Effective Date.
LANDLORD:
City of Aspen
Signed by:
B Y . 7753 E0500940430...
Name: Peter Strecker
Title: City Manager
Date: 11/12/2025 1 2:41:17 PM MST
TENANT PARTIES: Yogi's, LLC, a Colorado limited liability company
By:
Name: B
Title: Manager
Date : 11 /6/2025
ed
lU lUt ttltl4S/,..
Bren an erl, individually (as to Section 11(a) only)
Date: 11 /6/2025
DocuS�°lgned by:
WEBERC� ��� 54A75432BiB2487...
Scott Weber
Date : 11 /6/2025
Carly Weber
Date: 11 /6/2025
L
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