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HomeMy WebLinkAboutresolution.council.039-92 . .~" w Iii " .' W' ~~\ - RESOLUTION NO. 30 Series of 1992 A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE ASPEN THEATRE IN THE PARK AND THE CITY OF ASPEN, COLORADO, FOR THE OCCUPANCY OF CITY OWNED PROPERTY FOR CONSTRUCTING AND MAINTAINING A TEMPORARY FACILITY TO PRODUCE LIVE THEATRE PERFORMANCES, AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a lease agreement between the Aspen Theatre in the Park and the City of Aspen, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves that lease agreement between the Aspen Theatre in the PArk and the City of Aspen, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen 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 10 day of ~ r "'.; , 1992. ).(/~ I, Kathryn S. Koch, 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 on the day hereinabove stated. A!~ J~e/.- Kathryn S. Koch, City Clerk theatre. res . (It ..\ '(, LEASE AGREEMENT THIS LEASE AGREEMENT is made and executed on a....~ /0 , 1992, by and between the CITY OF ASPEN, Colorado, a home rule municip corporation (hereinafter referred to as the "City"), and the ASPEN THEATRE IN THE PARK, a not-for-profit organiza- tion incorporated under the laws of the State of Colorado, (hereinafter referred to as the "Lessee"). WIT N E SSE T H: WHEREAS, the Lessee wishes to lease certain property in the City of Aspen which the City owns; and, WHEREAS, the City wishes to lease said property to the Lessee; and, WHEREAS, the City Council of the City of Aspen has granted to Lessee a temporary use permit pursuant to Ordinance No. 38, Series of 1992, in accordance with Section 24-7-1203 of the Municipal Code; and, WHEREAS, the parties hereto wish to set forth the terms under which the Lessee may lease said property from the City; and, WHEREAS, the City and the Lessee are authorized to enter into this lease for the purposes set forth herein; NOW, THEREFORE, in consideration of the mutual covenants, agreements, representa- tions and warranties herein contained, the parties hereto agree as follows: 1. Demise and Description. Lessor hereby agrees to lease to Lessee and Lessee hires from City, for the purpose of conducting that lawful activity as hereinafter described and for no other purpose, that certain real property (hereinafter "Premises"), situated in the City of Aspen, County of Pitkin, State of Colorado, and more particularly described in the schedule attached hereto as Exhibit "A" and made a part hereof. 2. Representation by the Parties. (a) The City hereby represents that the Premises are owned by City in fee, subject only to restrictions established by the general planning and zoning code of the City of Aspen, Colorado, and any state of facts which an accurate surveyor physical inspection would show. Lessee, by entering into this Lease, agrees that Lessee is satisfied as to City's title to the Premises and has found the same to be satisfactory. (b) City hereby covenants, subject to the terms and conditions herein provided, that Lessee shall have the sole, peaceable and uninterrupted use and occupancy of the Premises during the term of this Lease, for so long as Lessee performs all covenants herein agreed to be performed by Lessee. ~...'. I't '^" e, 1s q~,~ - ,. -- (c) Lessee hereby represents that it is a not-for-profit organization incorporated under the laws of the State of Colorado, that it is operated exclusively for charitable purposes as those terms are defined by Article X, Section 5 of the Colorado Constitution; and, that it has received tax exempt status from the Internal Revenue Service pursuant to Section 501(c)(3) of the IRS Code. 3. Construction of Improvements. Lessee has, or shortly will hereafter, construct and occupy on the Premises a tent to serve as a temporary structure hereinafter referred to as the Theatre Tent, together with onsite improvements, at its sole cost in accordance with plans, specifications, and detailed description of the work which has been approved by the Pitkin/Aspen Building Department. Said plans and specifications are made a part hereof as if fully set forth here. 4. Term. Subject to Lessee's satisfactory adherence to all of the terms and conditions herein, the term of this lease shall be from May 26, 1992 to September 30, 1992. 5. Rent. (a) Lessee shall pay City as rent for the Premises the amount of One Dollar ($1.00) to be paid at the start of the lease term. (b) Except as otherwise provided herein, the rent provided for in this Lease, shall not include expenses or charges with respect to the Premises, including maintenance, repairs, costs of construction and replacement of Theatre Tent, insurance, utilities, taxes and assessments now or hereafter imposed upon or related to the Premises. Lessee shall bear and pay for all such charges. 6. Use of Premises. (a) The Premises shall be used exclusively by Lessee for the purpose of constructing and maintaining a temporary facility to produce live theatre performances subject to the terms and conditions of this Lease and the temporary use permit authorized by the City Council pursuant to Ordinance No. 38, Series of 1992. (b) Lessee shall not use, or permit the Premises, or any part thereof, to be used, for any purpose or purposes other than the purpose or purposes for which the Premises are hereby leased; and no use shall be made or permitted to be made of the Premises, or acts dOne, which will cause a cancellation of any insurance policy covering the building located on the premises, or any part thereof, nor shall Lessee sell, or permit to be kept, used, or sold, in or <tbout the Premises, any article which may be prohibited by the standard form of fire insurance policies. Lessee shall, at its sole cost, comply with all requirements, pertaining to the Premises, of any insurance organization or company, necessary for the maintenance of insurance, as provided herein, covering any tent, structure and appurtenances at any time located on the Premises. (c) Lessee shall not sell, or permit to be kept, used, or sold, in or about the Premises, any illegal drugs or alcoholic beverages except in accordance with a special event permit issued by the City of Aspen pursuant to Chapter 4 of the Aspen Municipal Code. 2 ~.. '. .. .. ij.... ,~ --- (d) Lessee agrees to comply with all present and future federal, state and municipal laws, rules and regulations in its use and occupancy of the Premises. (e) Lessee shall not sell, convey, assign, transfer, sublease, pledge, surrender or, otherwise encumber or dispose of this Lease, the Theatre Tent, or any interest or estate created herein. (f) Lessee shall not commit, or suffer to be committed, any waste on the Premises, or any nuisance. (g) Lessee shall not erect, install, operate nor cause nor permit to be erected, installed or operated in or upon the Premises any temporary or special event sign(s) or other advertising device without having obtained the written consent of the City Manager for the City. Such consent mayor may not be given at the City Manager's sole discretion. (h) Lessee shall not permit any other person, persons, company, corporation, or organization to occupy or use the Premises without the express written consent of the City. 7. Parking. Lessee shall not use, nor shall it allow its employees, volunteers or guests the use of any portion of the Premises for parking vehicles. Lessee shall cooperate with City officials in discouraging the illegal parking of vehicles on the Premises or in areas surrounding the leased Premises. 8. Utilities. Lessee shall fully and promptly pay for all water, gas, heat, light, power, telephone service, garbage removal, cable television, and other public utilities of every kind furnished to the Premises throughout the term hereof, and all other costs and expenses of every kind whatsoever of or in connection with the use, operation, and maintenance of the premises and all activities conducted thereon, and City shall have no responsibility of any kind for any thereof. 9. Taxes. Other Governmental Charges and Utility Charges. (a) The parties contemplate that the Premises will be used strictly for charitable purposes and, therefore, that the Premises will be exempt from all taxes presently assessed and levied with respect to real property. In the event that the use, possession, construction or equipping of the Premises is found to be subject to taxation in any form, the Lessee shall pay same as they respectively come due; provided that, with respect to any governmental charges that may lawfully be paid in installments over a period of years, Lessee shall be obligated to pay only such installments as have accrued during any individual term of the lease. (b) Lessee may at its expense and in good faith contest any taxes, assessments, and other charges and, in the event of any such contest, may permit the taxes, assessments, or other charges so contested to remain unpaid during the period of such contest and an appeal therefrom unless the City shall notify the Lessee that, in the opinion of the City Attorney, by nonpayment of any such items the title will be materially endangered or the Premises or any 3 me. ~,. ~.. -- ~.~" ~ portion thereof will be subject to loss or forfeiture, or the City will be subject to liability, in which event such taxes, assessments, utility or other charges shall be paid forthwith; provided, however, that such payment shall not constitute a waiver of the right to continue to contest such taxes, assessments, utility or other charges. 10. Maintenance. (a) Lessee shall, throughout the term of this lease, at its own cost, and without any expense to City, keep and maintain the premises, including all structures, tents and improve- ments of every kind which may be a part thereof, and all appurtenances thereto, in good sanitary, and neat order, condition and repair. City shall not be obligated to make any repairs, replacements, or renewals of any kind, nature or description whatsoever to the Premises or any buildings or improvements thereon. (b) Lessee shall, at its own expense, keep and maintain all entrances to the Premises in a clean and orderly condition, free of dirt, rubbish, and unlawful obstructions, (c) Lessee shall, at its own expense, keep and maintain all landscaping adjacent to the Premises in a well groomed and orderly condition, free of rubbish and unlawful obstructions. (d) Lessee agrees to cooperate with the City in restricting the parking of employee, volunteer or guest vehicles only in authorized locations near or on the Premises. 11. Access to Premises. Upon at least twenty four (24) hours prior notice, except in cases of emergency, lessee shall permit City or its agents and employees to enter the Premises at all reasonable hours to inspect the Premises or make repairs that Lessee may neglect or refuse to make in accordance with the proyisions of this Lease. Before entering the Premises to make repairs, Lessor shall give Lessee notice and a reasonable period of time to make necessary repairs. 12. Indemnification of City. City shall not be liable for ally loss, InJury, death, or damage to persons or property which at any time may be suffered or sustained by Lessee or by any person whosoever may at any time be using or occupying or visiting the Premises or be in, on, or about the same, whether such loss, injury, death, or damage shall be caused by or in any way result froll) or arise out of any act, omission, or negligence of Lessee or of any occupant, visitor, or us~r of any portion of. the Premises, or shall result from or be caused by any other matter or thing whether of the same kind as or of a different kind than the matters or things above set forth, and Lessee shall indemnify City against all claims, liability, loss, or damage whatsoever on account of any such loss, injury, death, or damage. Lessee hereby waives all claims against City for damages to the Theatre Tent and improvements that are now or hereafter placed or built on the Premises and to the property of Lessee in, on, or about the Premises, and for injuries to persons or property in or about the Premises, from any cause arising at any time. The last two preceeding sentences shall not ilPply to loss, injury, death, or damage arising by reason of the negligence or misconduct of City, its agents, or employees, subject to those terms, conditions and limitations as contained in the Colorado Immunity Act, Section 24-1O-101,et seq. 4 . e: %: ,\:" ,. - 13. Provisions Regarding Insurance. (a) At its own expense Lessee shall carry and maintain comprehensive general public liability insurance against all direct or contingent loss or liability for property damage, personal injury or death occasioned by .reasons of the operation, control or construction upon the Premises, of not less than those specified by Section 24-10-114, C.R.S., as may be amended from time to time, naming the City as additional or co-insured. Lessee shall maintain said coverage in full force and effect during the term of this Lease. (b) Lessee shall furnish the City with a copy of all required insurance policies or certificates evidencing such required coverage. All insurance policies maintained pursuant to this agreement shall contain the following endorsement: It is hereby understood and agreed that this insurance policy may not be canceled by the surety until thirty (30) days after receipt by the City of Aspen and Pitkin County, by registered mail, of a written notice of such intention to cancel or not to renew. (c) In the event full insurance coverage required by this Lease is not maintained as provided for herein, City may, but shall be under no obligation to, purchase the required policies of insurance and pay the premiums necessary and provide for payment thereof and all amounts so advanced therefor by City, if any, shall be added to the rent due from Lessee. 14. Condemnation. If during the term of this Lease, 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 the City, for public use, then the lease term granted herein 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. Upon such occurrence, Lessee shall not be entitled to any part of the condemnation proceeds, if any, for the value of the unexpired term of this lease or for any other estate or interest in the Premises, such amount belonging entirely to the City. 15. Lessee's Option to Terminate. Lessee shall have the right, by written notice to the City given at least 30 d<tys prior to its intention to do so, to terminate and surrender its leasehold interests hereunder to City, and on such effective date Lessee shall be relieved from all further liability hereunder, subject to the Remedies On Default provisions of this Lease which shall apply as if a default had occurred. 16. Abandonment of Premises. Lessee shall not vacate or abandon the Premises at any time during the term hereof; if Lessee shall abandon or surrender the Premises, or be dispossessed by process of law, or otherwise, any personal property belonging to Lessee and left on the Premises shall. be deemed to be abandoned, at the option of City, except such property as may be encumbered to City. 5 (- ., e:, . .t:~ . 17. Audience. Lessee shall not admit to the Premises a larger number of persons than the seating capacity thereof will accommodate or that can safely or freely move about the Premises. 18. Fire Hazards. Lessee shall not do or permit to be done anything in or on any part of the Theatre Tent, or bring or keep anything in the Theatre Tent, which will in any way increase the risk of fire, or in any way conflict with the regulations of the fire department or with any of the rules, regulations, or ordinances of the City of Aspen. Lessee shall not, without the prior, written consent of City, put up or operate any engine or motor or machinery on the demised premiss or use oils, burning fluids, camphene, kerosene, naphtha, or gasoline for either mechanical or other purposes or any other agent than gas or electricity for illuminating the Premises. 19. Evacuation of Building. City reserves the right to evacuate the Theatre Tent during any activity in progress when it is deemed necessary for the safety of the general public. ' 20. Events of Default Defined. The following shall be "Events of Default" under this Lease and the terms "event of default" and "default" shall mean, whenever they are used in this Lease, anyone or more of the following events: (a) Failure by the Lessee to pay any rent or other payment required to be paid herein at the time specified; or, (b) Failure to use the Premises for the purpose or purposes set forth in the Use of Leased Premises provisions of this Lease; provided, however, that time spent for the purpose of maintenance, remodeling, or repairs to the Leased Premises and/or for events beyond the control of the Lessee shall not be counted; or, (c) Failure by the Lessee to observe-and perform any covenant, condition or agreement on its part to be observed or performed, unless the City agrees in writing to an extension of time or waiver prior to its expiration; or, (d) Lessee's interest in this Lease or any part hereof is assigned or transferred without the written consent of the City, except as provided herein, either voluntarily or by operation of law or otherwise; or, (e) Lessee abandons or vacates any part of the Premises. 21. Remedies on Default. Whenever any Event of Default shall have happened and be continuing the City shall have the right, at its sole option and discretion, to notify Lessee of the Event of Def<tult and require Lessee to cure the Event of Default within a reasonable period of time or suffer termination of the Lease and the Remedies of Default as provided herein. If Lessee fails to cure, or it is impossible to cure, the City may declare the Lease terminated. 6 ,. '. (A" ,., .'. """ x" ~" 22. No Remedy Exclusive. No remedy herein conferred upon or reserved to City is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Lease or now or hereafter existing at law or in equity. No delay or omission hereunder shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. 23. Non-Discrimination. The parties hereto agree to comply with all laws, ordinances, rules and regulations that may pertain or apply to the Premises and its use. In performing under this Lease, Lessee 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 status, physical handicap, affectional or sexual orientation, family responsibility or political affiliation, nor otherwise commit an unfair employment practice. 24. Attorneys' Fees. If any action at law or in equity shall be brought to recover any rent under this lease, or for or on account of any breach of, or to enforce or interpret any of the covenants, terms, or conditions of this Lease, or for the recovery of the possession of the Premises, the prevailing party shall be entitled to recover from the other party as part of the prevailing party's costs reasonable attorneys' fee, the amount of which shall be fixed by the court and shall be made a part of any judgment or decree rendered. 25. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, addressed as follows: If to the Lessee: Carol Loewenstern P.O. Box 8677 Aspen, Colorado 81611 If to City: City of Aspen, Colorado 130 South Galena Street Aspen, Colorado 81611 Attention: City Manager With a copy to: City Attorney 130 South Galena Street 7 I'.':,' """,- - e{ (~ Aspen, Colorado 81611 26. Binding Effect. This Lease shall inure to the benefit of and shall be binding upon the City and the Lessee and their respective successors and assigns. 27. Severability. In the event any provision of this Lease shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 28. Amendments. The terms of this Lease shall not be waived, altered, modified, supplemented or amended in any manner whatsoever except by written instrument signed by the City, the County and the Youth Center. 29. Execution in CounteJllarts. This Lease shall be executed in three counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 30. Applicable Law. This Lease shall be governed by and construed in accordance with the laws of the State of Colorado. 31. Captions. The captions or headings in this Lease are for convenience of reference only and in no way define, limit or describe the scope or intent of any provision or sections of this lease. 32. Waiver. The waiver by City of, or failure of City to take action with respect to any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition, or subsequent breach of the same, or any other term, covenant, or condition therein contained. The subsequent acceptance of rent by City or the acknowledg- ment by City of Lessee's exercise of an option to renew the term of the Lease as provided herein shall not be deemed to be a waiver of any preceding breach by Lessee of any term, covenant, or condition of this Lease, regardless of City' knowledge of such preceding breach. 33. Entire Agreement. This Lease constitutes the entire agreement between the City and the Lessee. No waiver, consent, modification or change of terms of this Lease shall bind either party unless in writing signed by both parties, and then such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given. There are no understandings, agreements, representations or warranties, express or implied, not specified herein regarding this Lease or the Premises leased hereunder. 34. Further Assurances. 8 '.'-' f ij. '~ ~ ,. e; ~,. 4 -- The parties further agree to execute and deliver such additional documents and agreements as necessary to carry out the intent of this Lease. 35. No Third Party Beneficiaries. This Lease is not intended to create any right in or for the public, or any member of the public, including any subcontractor, supplier or any other third party, or to authorize anyone not a party to this Lease to maintain a suit to enforce or take advantage of its terms. The duties, obligations and responsibilities of the parties to this Lease with respect to third parties shall remain as imposed by law. IN WITNESS WHEREOF, the City and the County have executed this Lease in their names with their seals hereunder affixed and attested by their duly authorized officers, and the YOuth Center has caused this Lease to be executed in its name and attested by its duly authorized officer. All of the above occurred as of the date first written above. By ATTEST: }(/~ ~YClerk ASPEN THEATRE IN THE PARK By Title: WITNESS: Approved as to form: QIt(~tL~ 9 -- i/ic:3freE R3Ur S ~ ,?LA-AJ E:X/I/13// /fA" - ?,r.~/J115.E::5 / ~ I f ~ -s; I ~ I ~~ C ~: ).l It '" \J il ~ \ I) \ \l\ ~". ,....... ~ I ., \ .~ -~ \ ~ \ \. "- "- ,~ a., \ .~ , " f / , " , / -:, Ii,' '0,'<. , , I / , / / / , '>-.":; , ~~