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HomeMy WebLinkAboutresolution.council.009-04 RESOLUTION #9 (Series of 2004) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING THE AGREEMENT TO TERMINATE THE RESTAURANT LEASE AT THE GOLF COURSE WITH DOUG CLAYTON AND AUTHORIZING THE CITY MANAGER TO SIGN SAID AGREEMENT WHEREAS in February 2002, the City entered into a lease agreement with Doug Clayton for the restaurant concession at the Aspen Golf Course; and WHEREAS, the city and lessee have both determined that the arrangement has not been profitable; and WHEREAS, the City and Clayton have mutually agreed to terminate the restaurant concession lease and have entered into an agreement to terminate the lease and to purchase the restaurant equipment, a copy of which is annexed hereto and part there0'f. NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves the agreement to terminate the lease regarding the golf course restaurant, 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. Dated:'x.~~~ /',/; ~~,~ I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a tree and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held February 9, 2004. at S~K~~-~~ ~yn . och, City Cierk AGREEMENT TO TERMINATE LEASE AND AGREEMENT FOR SALE OF RESTAURANT THIS CONTRACT AND AGREEMENT, made and entered on this(~' day of~ 2004, by and between the City of Aspen, ("City"), a Colorado home rule municipal corporation, and Doug Clayton, Aspen, Colorado 81612 ("Seller"). WHEREAS, the parties hereto entered into that certain Lease Agreement for the restaurant space within the Aspen Golf Shop and Restaurant Facility located in Aspen, Colorado, dated February 14, 2002, and approved by the Aspen City Council via Resolution No. 5, Series of 2002; and WHEREAS, the parties hereto desire to terminate the above referenced Lease Agreement and release each from the other from the terms and conditions of said Lease Agreement; and WHEREAS, Seller desires to sell the restaurant business known as the "Pyramid Peak Roadhouse" conducted by Seller at the above referenced location and City desires to purchase said restaurant business. NOW THEREFORE, in consideration of the mutual covenants and promises Of the parties, Seller and City covenant and agree as follows: 1. Termination of Lease Agreement. The parties hereto agree to terminate the above referenced Lease Agreement as of 12:00 o'clock P.M. on February 10, 2004, at-which time the Lease Agreement shall become null and void. 2. Purchase of Restaurant. a. City agrees to buy and Seller agrees to sell, on the' terms and conditions set forth below, the restaurant business located at the Aspen Golf Shop and Restaurant Facility, in Aspen, ColOrado, including the goodwill of the business, the stock-in-trade, merchandise, furniture, fixtures, equipment, and all other assets used or relating to the business, situated on the premises, and specifically set forth in the attached schedule A (the Assets), which is incorporated by reference (the Restaurant). This agreement also includes the trade name or business name (specifically "Pyramid Peak Roadhouse"), licenses, permits, insurance policies, and all contracts relating to the business sold. As part of the conveyance of the Restaurant, Seller agrees to assign to City all of its right, title, and interest to the tradename/trademark "Pyramid. Peak Roadhouse" and all derivatives, variations, and abbreviations thereof. b. The Liquor Li'cense. Seller shall transfer to City the restaurant liquor license issued by the 'City of Aspen Liquor Licensing Authority for the Restaurant, in accordance with the rules and regulations of the Colorado State Liquor Licensing Authority. Seller shall execute all necessary papers and documents required to accomplish the transfer of the restaurant license. c. Purchase Price and Terms The total purchase price for the Restaurant shall be TWO HUNDRED THOUSAND DOLLARS ($200,000.00). The purchase price for the Restaurant shall be payable in U.S. dollars in cash or certified funds at Closing. d. Bill of Sale. Seller shall deliver an executed bill of sale for the business, trade fixtures, good will, and liquor license transfer papers and documents to City at Closing with full warrants of title that the same are free and clear of all liens and encumbrances. e. Restaurant Inventory. The purchase of the Restaurant shall not include current inventory of goods, including any food, liquor or wines. f.. Contingencies. contingent upon the following: The transactions contemplated herein are specifically i.. The formal approval of this Agreement to Terminate and Agreement for Sale of Restaurant by the City of Aspen City Council evidenced by a resolution. ii. Seller shall deliver to City at Closing its balance, sheet and statement of operations for its fiscal year ending 2003. Seller shall warrant that such financial statements are correct and complete, have been prepared in accordance with sound and generally accepted accounting principles and practices consistently applied throughout the periods indicated, and fairly present the performance of the Restaurant for the periods covered and the results of its operations for such periods. iii. Seller shall have performed and satisfied all covenants, agreements, and conditions required herein to be performed and satisfied by it prior to or at the Closing. g. Transition and Management Assistance. During the period commencing on the date hereof and ending on the Closing Date, Seller shall use its best efforts allow a smooth transition for the new operation. During a TransitiOn Period to include the period of time commencing on the date hereof and ending thirty (30) days following Closing hereof, Seller covenants to City that it will use its bests efforts to assist in the orderly transfer of its business from Seller to City and to this end shall: i. Introduce City to Seller's existing suppliers in person, by telephone or letter, or in any other appropriate manner, which shall be within the discretion of City. ii. Introduce City to Seller's existing employees in person, by telephone or letter, or in any other appropriate manner, which shall be within the discretion of City. iii. Consult with City as reasonably necessary on technical issues. iv. Do all other reasonable acts at the request of City which will effectuate the intents and purposes of this Agreement. Nothing in this paragraph shall be construed to relieve Seller of any expenses, costs, or obligations which arise with respect to the Restaurant during the Transition Period; or to entitle Seller to any income, earnings, or profits with respect to the business during the Transition Period. h. Covenants, Representations, and Warranties of Seller. Seller hereby covenants, represents and warrants to the City the following, all of which shall be true, accurate and complete as of the date hereof and shall surVive the Closing: i. Status and Authority. Seller has the right, legal capacity and authority to enter into and perform its obligations under this Agreement, and the documents to be executed and delivered pursuant thereto. There is no lease or sub- lease burdening the Restaurant that shall survive Closing. Seller is the unconditional owner of the restaurant business, its equipment and fixtures, and the above referenced restaurant liquor license. The above are not subject to any encumbrance, there are no proceedings pending involving the above subject matter of the Agreement, and there are presently no pending citations by the Colorado State Liquor Licensing AUthority or the City of Aspen Liquor Licensing Authority against Seller's liquor license. Seller hereby represents and warrants that it has been using the name "Pyramid Peak Roadhouse" as its corporate name, but has not otherwise registered such name federally, with the State of Colorado or Pitkin County. ii. No Liabilities. Prior to or at the time of Closing, Seller shall pay, or otherwise secure the release of, every debt, account payable, liability or obligations of any nature whatsoever, contingent or otherwise, that is, or could become, a lien or other encumbrance against the Restaurant, and Seller shall not engage in any action with respect to the Restaurant between the date of execution of this Agreement and the Closing date that could give rise to a lien or claim against the Restaurant. Seller has now, and will have at the Closing date, filed all United Sates, Colorado, and other tax returns required by law to be filed, and has paid or will have paid, or made provision for the payment of, all taxes which have or may become due pursuant to such returns. Seller is not aware of any additional assessments of tax pending of threatened, except for taxes which become due upon the required filing of current tax returns. iii. Litigation. No action, suit or proceeding is pending or, to the best of Seller's knowledge, threatened against the Restaurant or Seller or affecting Seller's interest in, management of, or other activities with respect to, the Restaurant. Seller is not in default of any order of any court, arbitrator or governmental body respecting the subject Restaurant. iv. No Notice of Violation. Seller has no knowledge of and has received no notice of any pollution, health, safety, or environmental violation with respect to the Restaurant or any portion thereof which has not been cured. v. No Conflict. The execution and delivery of this Agreement and the documents required hereunder, and the consummation of the transactions contemplated herein, will not: (1) conflict with or be in contravention of any provision of any law, order, rule or regulation applicable to Seller or the Restaurant; (2) result in the breach of any of the terms or provisions of, or constitute a default under, any agreement or other instrument to which Seller is a party, or by which it or any portion of the Restaurant may be bound or affected; (3) permit any party to terminate any such agreement or instrument or to accelerate the maturity of any indebtedness or other obligation of the Seller; or (4) result in any lien, charge or encumbrance of any nature on the Restaurant other than as permitted by this Agreement. vi. True and Correct Information. To the best of Seller's knowledge, no document, certificate or written statement furnished to the City and its attorney by Seller in connection with this transaction contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact necessary in order to make the statements contained therein not misleading. Additionally, Seller has disclosed all encumbrances and/or defects in title not shown by the public records and all title documents of which Seller has actual knowledge. vii. Use of Property Pending Closing. Agreement and the closing date, Seller: Between the date of this (i) Shall maintain the Restaurant in its current condition, normal wear and tear excepted; (ii) Shall not permit the Restaurant to be used or operated in any manner that would be in violation of any local, state or federal law or regulation; and (iii) Shall maintain the regular course of business until Closing, and shall file all statements and accounts required under any federal, state, or local statute or ordinance respecting wages, social security, withholding of income taxes, unemployment taxes, sales taxes, and all other such obligations. 3. Inspection. City shall have the right to have inspection(s) of the physical conditions of the Restaurant and the Assets of the Restaurant at City's expense. 4. Closing. The date and time of Closing shall be at 2:00 P.M. on February 25, 2004, at the offices of the City Attorney located at City Hall, 130 S. Galena Steet, Aspen, Colorado. The parties may agree in writing to postpone or advance the date of consummation of this Agreement and such postponed or advanced date shall be designated the Closing. 5. Delivery of Bill of Sale and Release of Lease. Subject to tender or payment on Closing as required herein and compliance with the other terms and provisions hereof, Seller shall execute and deliver a Bill of Sale at Closing conveying title to the Restaurant Assets. The parties hereto shall execute and convey one to the other a Release of the Lease Agreement for the Restaurant Facility. 6. Possession. Possession of the Restaurant shall be delivered to the City on the date and time of Closing. If Seller, after Closing, fails to deliver possession on the date herein specified, Seller shall be subject to eviction and shall be additionally liable for payment of $500.00 per day as liquidated damages from the date of agreed possession until possession is delivered. 7. Time of Essence/Default/Remedies. Time is of the essence hereof. If any note or check received or any of the payments due hereunder is not paid, honored or tendered when due, or if any other obligation hereunder is not performed within the time frames specified herein, there shall be the following remedies: a. IF THE CITY IS IN DEFAULT, then Seller may elect to treat this Contract as canceled, in which case all payments and things of value paid hereunder shall be forfeited and retained on behalf of Seller, and Seller may recover such damages as may be proper, or Seller may elect to treat this Contract as being in full force and effect, whereupon Seller shall have the right to an action for specific performance or damages, or both. b. IF SELLER IS IN DEFAULT, the City may elect -to treat this Contract as terminated, in which case all money payments and things of value paid hereunder shall be returned forthwith to the City and the City may recover such damages as may be proper, or may elect to treat this Contract as being in full forCe and effect, whereupon the City shall have the right to an action for specific performance or damages. c. Anything to the contrary herein notwithstanding, in the event of any litigation arising out of this Contract, the court may award to the prevailing party its reasonable costs and expenses, including attorneys and expert witness fees. 8. Survival of Covenants, Representations and Warranties. The covenants, representations, warranties and indemnities made by the parties to this Contract, and the obligations and agreements to be performed or complied with by the respective parties hereunder on or before the closing date, shall survive the closing, but shall terminate and be of no further force an'd effect on the third anniversary of the date of closing. 9. Entire Agreement. This Contract constitutes the entire agreement between the parties hereto, and supersedes all prior and contemporaneous agreements, representations and understandings of the parties regarding the subject matter of this Contract. No supplement, modification or amendment of the Contract shall be binding unless executed in writing by the parties hereto. 10. Counterparts. This Contract may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 11. Binding Effect. This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successor and assigns. The City may in its sole discretion, and without the prior consent of Seller, assign all of the City's right hereunder to, or cause title to the Parcel to be taken in the name of non-profit nominee(s) selected by the City. 12. Recommendations of Legal Counsel. By signing this document, the parties hereto acknowledge the advisability of obtaining the advice of independent legal regarding examination of title documents and the terms of this Contract. 13. Govemin~ Law. This Contract shall be governed by and be construed in accordance with the laws of the State of Colorado and the parties hereto hereby consent to the exclusive jurisdiction of the Colorado state courts in the event of any controversy or suit arising hereunder. 14. Severabilitv. If ~any provision of this Contract is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Contract shall remain in full force and effect and shall in no w, ay be affected, impaired or invalidated. 15. Termination. In the event this Contract is terminated for any reason, pursuant to the terms hereof, all money payments, with any accrued interest, and things of value paid hereunder shall be returned forthwith to the City. 16. Notices. All notices and other communications tendered in connection with this Contract shall be in writing, and shall be deemed to have been duly given when delivered in person or by telefax, or on the fourth day after mailing, if mailed registered or certified mail, postage prepaid and properly addressed as follows: To City: Office of the City Manager City of Aspen 130 South Galena Street Aspen, Colorado 81611 6 With a copy to the City Attorney at the same address. To Seller: Doug Clayton Aspen, CO 81611 With a copy to Aspen, CO 81611 17. Facsimile Transmissions. It is mutually agreed upon by all the parties to this Contract that, if necessary, faCSimile COmmunication shall be an acceptable and binding form of communication. An original shall be provided to the other party(ies) at closing with original signatures. CITY OF ASPEN: By: Date /~T_~sAYTON & ALLEN GIAQUINTO ellers) By: 'Title: Date jpw_02/0312004-G:\john\word\agrXPyram[dPeak.d°e 7