HomeMy WebLinkAboutresolution.council.005-04P53
RESOLUTION NO.
Series of 2004
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A LAND LEASE AGREEMENT BETWEEN THE OBERMEYER
REDEVELOPMENT COMPANY AND THE CITY OF ASPEN, COLORADO FOR THE LEASE
OF TWO (2) PARCELS REFERRED TO AS THE "ZUPANCIS PARCEL" AND A poRTIoN OF
THE "RECYCLE/SNOWMELTER CENTER 'PARCEL," AND AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN,
COLO1LaJ30.
WHEREAS, there has been submitted to the City Council a lease a~eemenr betwveen the
Obermeyer Redevelopment Company 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 CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO:
That the City CounciI of the City of Aspen hereby approves that lease agreement b~tween the
Obermeyer RedeYelopmen~ Company and the City of Aspen, a copy of which is annexed hereto and
incorporated herein, and does hereby authorize the City Maaager of the City of Aspen to execute said
agreement on behalf' of the'C [t-y of Aspen.
INTRODUCED, READ AND ADOPTED by the City Court/il of the City. of Aspen on the
day of~004.
/' 'He~'en Ka~m'""Klan~lerud, ~v[Zy~" ~
I, Kathryn S. Koch, duly appointed and acting Cits' 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 hg~n/above stated.
Kathr~n S' Koch, Ciw Clerk
LAND. LEASE AGREEMENT
THIS LAND LEASE AGREEMENT (hereinafter "Agreement") is entered into by and between
THE CITY OF ASPEN COLORADO Lessor (hereinafter "Lessor" or "the City"), and Obermeyer
Redevelopment Company, Lessee (hereinafter "Lessee" or "Obermeyer"), to be effective on the date on
which the parties actually affix their signatures hereto.
WITNESSETH:
WHEREAS, the City owns the two parcels subject to this Agreement (hereinafter "Zupancis
Parcel" and "'Recycle/Snowmelter Center Parcel", together called "Leased parcels"), located in Aspen,
Colorado; and
WHEREAS, Obermeyer Redevelopment Company, the Lessee, is a Colorado S-Corporation
authorized to do business in the State of Colorado and primarily engaged in the business of developing real
estate; and
WHEREAS, the City has the rights, title and interest in and to the real property and public
facilities on the Leased Parcels, together with the rights, licenses, and privileges hereinafter granted; and
WHEREAS, the City has full power and authority to enter into this Agreement in respect thereof;
and
WHEREAS, the City of Aspen granted a development order for the Obermeyer Place COWOP
Project as evidenced by the City of Aspen Ordinance No. 18, Series 2003, specifically approving the.
temporary use of the Lease Parcels; and
WHEREAS, Lessee desires to lease certain property with the intent of installing certain small
business operations in temporary and existing structures on site, along with construction-related operations
thereon upon the terms and conditions hereinafter stated.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein the parties agree
as follows:
SECTION I
LEASED PARCELS
A. Leased Parcels: Included Areas
Lessor hereby leases unto Lessee, for the term and upon the rentals, fees, charges and conditions
hereinafter stated, two parcels of land. The Zupancis Parcel is located at 540 East Main Street. The
Recycle/Snowmelt Center Parcel is located adjacent to Rio Grande Place on the eastern side of Rio Grande
Park. Both parcels are described on Exhibit A attached hereto and incorporated herein by this reference
(collectively referred to herein as "Leased Parcels").
B. Lease Parcels: Excluded Areas
1. Snowmelter Operational Area. The area within the Recycle/Snowmelt Center Parcel
devoted to the operations, traffic Circulation, and maintenance of the City's snow dumping and snow
melting operations is specifically excluded from the definition of Leased Parcels for the purposes of this
Agreement.
2. Recycle Operational Area. The area within the relocated Recycle/Snowmelt Center
Parcel devoted to the operations, traffic circulation, and maintenance of the Pitkin County recycle
operations is specifically excluded from the definition of Lease Parcels for purposes of this Agreement.
Page 1 of 17
SECTION II
INITIAL IMPROVEMENTS, USE OF PREMISES
AND FINAL IMPROVEMENTS
A. Initial Improvements
Description. Lessee, at its sole expense, shall be responsible for construction of the following
"Initial Improvements" on the Leased Premises. Any and all such changes shall comply with the City's
Building Department requirements.
Relating to both the Zupancis Parcel and the Recycle/Snowmelt Center Parcel:
a.) To accommodate the temporary relocation of a number of small businesses included in
the Obermeyer Place project, project management, and for construction-related
activities, Lessee shall install temporary buildings and structures of varying sizes and
dimensions on both sites. All such temporary structures shall be limited in height to
25' from existing grade (a height that is less than that allowed by current zoning).
Structures shall be skirted and may be interconnected with adjoining pathways and
decking to allow for pedestrian access.
b.) Utilities necessary for such stated uses may be extended and upgraded .for service to
the Leased Parcels. Such upgrade, including potential realignment or relocation of
services, shall be the responsibility of Obermeyer and shall be performed in
conjunction with the applicable agencies and all such work shall be performed in
accordance with applicable building code requirements.
c.) Exterior lighting shall be added to the existing and added structures in accordance
with City of Aspen lighting requirements and with sensitivity to Concept 600 Building
residents.
d.) Lessee shall site grade as appropriate to accommodate such changes and may add a
road base topping surface in areas that are appropriate for traffic circulation and
parking for the two parcels. In addition, existing sidewalks may be repaired and a
concrete surface may be added to the site to allow for a covered storage facility not to
exceed 100 s.f.
Relating solely to the Zupancis Parcel:
e.) The existing one-story house structure on the Zupancis Parcel on East Main Street and
the two existing garages to the north of the house shall be modified to accommodate
small business operations. Such modifications may include the removal of internal
walls, replacement of current roofs to accommodate higher, interior heights inside the
garages up to 12 feet, and other such changes in accordance with current zoning. The
existing buildings may be painted and window awnings may be added. The existing
fence along East Main Street may be removed.
f.) Clearing of brush and ground vegetation may be necessary to allow pedestrian access,
traffic circulation, and parking within the site. Any such changes shall be performed
in accordance with City Municipal Code.
g.) Public signage in the form of a general business directory within the site, individual
business signs, and directional signs shall be installed in accordance with the City's
sign code provisions.
h.) Under no event shall the three historically designated structures located on the
northem end of the Zu~pancis parcel be disturbed or removed by Lessee. Such
structures shall be either fenced or otherwise secured by Lessee to ensure they are
undisturbed during the term of this Agreement.
Page 2 of 17
i,)
All exterior changes to the Zupancis structures shall be subject to review and approval
of the City's Historic Preservati6n Officer and/or the Historic PreserVation
Commission, as applicable.
Relating solely to the Recycle/Snowmelt Center Parcel:
j.) The continuous dirt berm located along the north and east edges of the
Recycle/Snowmelt Center Parcel shall be partially removed to provide additional
traffic circulation and parking for the site. Such berm may be reshaped and regraded
to a height not to exceed 5 feet from existing grade. Once reshaped, the berm shall be
revegetated and maintained with appropriate ground cover plant materials for the
duration of this lease. Obermeyer shall,.upon termination of this Agreement, Work
cooperatively with the City to either leave the berm as modified or reestablish the dirt
berm to its substantially former condition, inclusive of its original height and its
former state of landscape vegetation.
k.) The dirt berm located adjacent to Rio Grande Place along the southern edge of the
Recycle/Snowmelt Center Parcel shall be removed entirely in order to provide
additional traffic circulation and parking for the site.
1.) A 6' tall protection and screening fence made of wood shall be installed alongside the
current sidewalk, between the two existing entry points to the Recycle/Snowmelt
Center Parcel in accordance with Building Department regulations.
m.) Public signage in the form of a general business directory within the site, individual
business signs, and directional signs shall be installed in accordance with the City's
s.ign code provisions.
Titl'e to such improvements shall remain with Obermeyer until expiration or other termination of this
Agreement, as provided for in Section XIII, below. Such Initial Improvements contained in this Section II
shall be completed during the term of this Agreement.
B. Permanent Improvements
Description. Lessee, at its sole expense, shall be responsible for construction of the "Permanent
Improvements" described in Exhibit B herein. Any and all such changes shall comply with the City's
Building Department requirements and all other relevant provisions of the Aspen Municipal Code.
C. Cooperation With Existing Uses Adjoining the Rec¥cle/Snowmelt Center Parcel
1. Snowmelt Operations. Obermeyer agrees to work in good faith with the City to ensure the
snowmelt operations remain accessible for their operations continuously through the term of this
Agreement.
2. Recycle Operations. Obermeyer understands the importance of the continued use by the
public of the Pitkin County recycling program and shall work with the County to ensure the operations
remain accessible to the public through the term of this Agreement. The recycle dumpsters shall be
relocated to the northern edge of the parcel and thetraffic circulation and access to the area shall be routed
to a one-way route. Obermeyer shall install accompanying signage within the Recycle/Snowmelt Center
Parcel to assist the public with directional and way-finding questions.
D. Authorized Uses
1. Small Business Operations. It is understood by both parties that Obermeyer shall sublease
spaces on the Leased Premises to a number of the small businesses currently located within the Obermeyer
Place project boundary. Such operations, on both the Zupancis Parcel and the Recycle/Snowmelt Center
Parcel, shall occupy either current non-historic structures or temporary job trailers.
Page 3 of 17
2. Proiect Management Operations. It is understood by both parties that Obermeyer shall
manage the Obermeyer Place construction project, the tenant relocation work, and the continuing sales and
leasing operations for the project from a location within the Recycle/Snowmelt Center Parcel.
E. Unauthorized Uses
1. Equipment, Construction Vehicle Storage, Portable Restrooms. Obermeyer shall not store
on the Zupancis Parcel any construction equipment or construction vehicles or any portable restrooms that
may be visible from any point along East Main Street.
2. Non-residential Property. 'Obermeyer shall not permit anyone to reside on the Leased
Parcels.
F. Sublease/Use/License/Storage Agreements
Obermeyer may rent out portions of the Leased Parcels and enter into agreements with third parties
to use the Leased Parcels. The base rents per square foot of the subleases shall not exceed current lease
rates for the tenants currently located on the Obermeyer Place site. In addition, each tenant shall receive
one rent-free month to defray relocation costs.
SECTION III
TERM .
A. Base Term
The initial term of this Agreement is for a period of time beginning on the date of execution and
ending June 30, 2006 ("Base Term"). Obermeyer shall have the right to extend the term for one (1) three
month period of time, in accordance with SubsectiOns B and C, below. During the Base Term and
extension term, lease rates shall be in accordance with the provisions of Section IV, Subsection B, below.
B. Options to Extend
1. Extension Option. Obermeyer shall have the right to extend the Base Term of this
Agreement for one (1) three-month period of time, as follows:
From July 1, 2006 through September 30, 2006
In the event of unforeseen exigent circumstances, at Obermeyer's request and with the
written approval of the City, additional three-month extension(s) may be granted. Such extensions may be
exercised so long as Obermeyer is not in default under terms of this Agreement.
2. Option Exercise. Lessee shall notify Lessor in writing of its intention to exercise the
option for each extension term no later than ninety (90) days prior to the otherwise expiry date of the then
current term.
3. Title Conveyance and Surrender of Possession. Upon the ending of the Base Term or
upon ending of the last and final exercised Extension Options, Obermeyer shall peacefully surrender
possession of the Leased Parcels and remove all personal property, inclusive of all temporary structures
and any constructed buildings or occupied structures that were not included within the Leased Parcels prior
to occupancy under this Agreement, without further requirement of notice by the City. or opportunity to
cure by Obermeyer, under terms of Section XII, below, or otherwise. Title to the associated improvements
shall vest in the City.
C. Lessor's Notice of Failure to Exercise
Should Obermeyer fail to exercise an option to extend the term of this Agreement within the time
provided, as defined in Subsection B above, Obermeyer shall not be deemed to have forfeited the option
until such time as the City shall give Obermeyer written notice of failure to timely exercise the option,
Page 4 of 17
together with notice of a period of five (5) days, after the date of said notice, within which Obermeyer shall
continue to have the right to exercise the option to extend the relevant term of this Agreement ("Notice of
Failure to Exercise"). If Obermeyer shall not have exercised the option, by written notice to the City,
within the five (5) day period provided in the City's Notice of Failure to Exercise, the option shall be
forfeited and Obermeyer shall have no further right to extend the relevant term of this Agreement.
D. Holding Over
Should Obermeyer or any of its subtenants hold over the use of or continue to occupy the Leased
Parcels with express written approval of the City after expiration of the Base Term or any extended term,
such holding over shall be deemed a month to month tenancy upon the existing conditions and agreements
provided for in this Agreement. It is expressly understood that no title to the temporary structures,
inclusive of installed structures commonly known as job trailers or any constructed building or structure
not included on the Leased Parcels prior to occupancy under this Agreement, shall pass to the City if
Obermeyer or any subtenant becomes a hold-over tenant.
SECTION IV
RENTS, FEES AND CHARGES
A. Base Term Ground Rent
1. Recognition and compensation to the City of Aspen for the use and occupancy of the Eeased
Premises by Obermeyer as described in this Agreement shall be made in the form of improvements to the
Recycle/Snowmelt Center Parcel, plus certain adjacent areas, herein referred to as the Permanent
Improvements denoted in Exhibit B, Section II, and Section V of this Agreement.
2. Permanent Improvements as approved through the City's land use approval process shall be
completed no later than nine months following the vacation of the Recycle/Snowmelt Center Parcel as
described in Section III, paragraph B, of the Agreement. If, at the time of completion, Obermeyer's audited
actual incurred costs (not including developer profit) for the Permanent Improvements approved by the City
and denoted in Exhibit B are less than $475,000, Obermeyer shall pay tothe City the difference between the
actual incurred costs and $475,000. If, at the time of completion, Obermeyer's audited actual incurred costs
(not including developer profit) for the Permanent Improvements approved by the City and denoted in Exhibit
B are more than $475,000, the City shall reimburse to Obermeyer the difference between $475,000 and the
higher actual incurred cost.
B. Extension Options Ground Rental Rates
1. Date of Execution through June 30, 2006. The rental rates specified in Subsection A,
above, shall be the rent charged during the Base Term of this Agreement.
2. July 1, 2006 Rental Rate. Beginning July 1, 2006, the first extension period of this
Agreement, if a buyer other than the City has the Zupan. cis property under contract, the rental amounts
shall be paid in monthly installments of $10,000 for both parcels, or $2,000 per month for the
Recycle/Snowmelter Center parcel and $8,000 for the Zupancis parcel. If the property is not under
contract, the rental amounts shall be paid in monthly installments of $4,000 for both parcels, or $1,000 per
month for the Recycle/Snowmelter Center parcel and $3,000 for the Zupancis parcel. The monthly rental
amounts under either scenario for each approved successive extension period shall be increased by 1%.
C. Payment Dates
1. Monthly Rents. During the Extension Option periods, rent shall be payable in monthly
installments beginning on the first day of each month.
2. First Payment of Rents and Prorata Rents. If any partial month rent is due, such rents shall
be calculated on a daily basis from the date of execution through to the end of the month.
Page 5 of 17
E. Place of Payment
All payments due and payable under this Agreemen~ shall be payable to the order of the City of
Aspen, and shall be submitted and/or delivered to the City's Finance Department.
F. Delinquent Payments
The City reserves the right to charge interest and a late fee, reasonably related to the administrative
cost of processing late payments, as such interest and fee may be instituted by the City and changed from
time to time.
SECTION V
CONSTRUCTION: PROCESS and APPROVAL REQUIREMENTS
A. Plans and Specs for Initial Improvements and Permanent Improvements
1. Site Plan, Construction Plans. Obermeyer shall submit a preliminary site plan to the City
for review. Upon written approval of the preliminary plan by the City or its designee, Obermeyer shall
submit construction plans and associated permit applications to the City's Building Department as
applicable. All construction, development, and remOdeling of improvements on the Leased Parcels, both
Initial Improvements and Permanent Improvements, shall be built or installed in conformance with City
codes and requirements in effect at the time of construction. Plans and specifications for construction,
prepared by registered architects and engineers, must be approved in advance of construction by the City
Building Department. Construction shall be in accordance with the plans so approved. Under no event
shall Obermeyer be responsible for the remediation of any pre-existing building code violations or
environmental hazardous conditions.
SECTION VI
MAINTENANCE, SECURITY AND PARKING
A. Maintenance
Obermeyer shall maintain improvements on the Leased Parcels at its own expense. Lessee shall
repair all damage to the Leased Parcels caused by its operations and/or by 'its employees, customers, guests,
contractors, agents and invitees.
B. Snow Removal
Obermeyer shall provide snow removal service on the Zupancis Parcel and the leased portion of
the Recycle/Snowmelter Center, including the adjacent sidewalks along Main Street and Rio Grande Place.
The City shall provide snow removal service on the non-leased portion of the Recycle/Snowmelt Center
Parcel.
C. Security
Security of the Leased Parcels shall be the responsibility of the Lessee. Nothing in this Agreement
shall be construed to impose security obligations upon the City or Pitkin County. The City shall not be
liable for any loss or damages suffered by Obermeyer or its subtenants from use of and operation upon the
Leased Premises. ~
D. Parking
This lease includes the use of the parallel parking spaces on the north side of Rio Grande Place
between the easterly and westerly entrances to Recycle/Snowmelter Center for project-related parking.
Obermeyer may also designate and use additional parking spaces on the Zupancis property and within the
leased portion of the Recycle/Snowmelter Center. The non-leased portion of the Recycle/Snowmelter
Center parcel shall remain clear of parked vehicles at all times. On-street parking regulations and parking
garage fees will apply elsewhere. Lessee shall actively encourage carpooling and transit use by emlSloyees,
Page 6 Of 17
tenants, customers and construction contractors to minimize the impact of vehicular traffic and parking at
the construction site and on the leased premises,
SECTION VII
UTILITIES
A. Utility Improvements to Water System and Sewer System.
Obermeyer shall install a temporary system of water and sewer lines and connectors in order to
facilitate connection to the existing utilities for the intended temporary use of the Leased Parcels. The City
will collect tap fees for the temporary buildings and then refund them once the lines are severed and
abandoned. Obermeyer will abandon any utility connections made on both parcels in accordance with
applicable standards at the termination of the lease.
B. Monthly Service Charges
Obermeyer shall be liable for all set up fees, monthly service charges, and any other fees charged
by utility providers.
SECTION VIII
APPURTENANT RIGHTS
Obermeyer shall have the rights of ingress to and egress from the Leased Parcels for Obermeyer,
its subtenants, employees, customers, guests, contractors, agents and invitees.
SECTION IX
MORTGAGE OF LEASEHOLD INTERESTS
Lessee shall have the right to pledge its leasehold interest as security, solely for the purpose of
construction of capital improvements to the Leased Premises under terms of this Agreement. Such a
pledge shall be subject to the prior written consent of the City, which consent shall not be unreasonably
withheld or delayed.
SECTION X
LIENS
In the event any individual or entity attempts to assert, or asserts, a mechanic's or materialmen's
lien against the Leased Parcels, Lessee shall hold the City harmless from such claim, including the cost of
defense, and shall provide the City with a Release of Lien.
SECTION XI
INDEMNITY AND INSURANCE
A. Indemnification
Lessee assumes the risk of loss or damage to the Leased Parcels, including associated
improvements and contents, and to vehicles and any other property on the Leased Parcels, whether if from
wind storm, fire, earth quake, snow, water run off, vandalism or any other cause or causes whatsoever.
Obermeyer hereby agrees to indemnify and hold harmless the City, its officers, employees, agents, and
assigns from and against all claims and damages of any kind, including attorney's fees, brought by anyone,
arising out of this Agreement .or out of Obermeyer's use and occupancy of and/or operations on the Leased
Parcels, other than those resulting from the negligence orwillful misconduct on the part of the City, its
officers, agents, employees, and assigns.
Page 7 of 17
B Insurance
1. Types and Limits. Obermeyer, to the extent that the following coverages apply to its
occupancy of and operations on the Leased Parcels, shall furnish and maintain at all times at its own cost
and expense:
Liability insurance, including premises, products and completed operations, and
contractual liability in a reasonable amount, but no less than:
Personal Injury,: One million dollars per occurrence and in the aggregate,
minimum three million dollars;
Property Damage: One mi llion dollars per occurrence and in the
aggregate, minimum three million dollars;
All risks property damage insurance for the replacement costs of the associated
improvements; and
2. Additional Insured/Certificates. Insurance coverage shall be written with companies
licensed to do business in Colorado and the policy or policies shall be in a form satisfactory to the City and
properly filed and approved by the Colorado Department of Insurance. The City shall be named as an
additional insured. The certificate shall provide that the insurance may not be materially changed, altered
or canceled by the insurer without first giving ten (10) days written notice by certified or registered U. S.
Mail, return receipt requested, to the Lessor at its address identified in Section XX, below. Certificate(s)
of Insurance documenting the coverage required by this Agreement shall be delivered to the BOCC on the
initial and each policy renewal date at the address stated in Section XX, below.
3. Application of Insurance Proceeds. Lessee shall apply insurance proceeds, payable by
reason of loss or damage to the pre-existing Zupancis buildings and improvements, first to the restoration
of the pre-existing Zupancis buildings and then to the improvements on the Leased Parcels. In the event of
damage due to an insurable cause, this Agreement shall continue in full force and effect.
4. Worker's Compensation. Lessee shall carry Worker's Compensation Insurance, if required and
as required by Colorado law and regulation. Certificate(s) of Insurance documenting such coverage shall
be delivered to the City on the initial and .each policy renewal date at the address stated in Section XX,
below. The City shall not be named as an additional insured.
5. Lessee's Tenants. Each of Lessee's tenants that occupy space within the Leased Parcels shall
be provided with a copy of this Land Lease Agreement evidenced by attaching a copy thereof to the
tenants' lease agreement with Lessee.
SECTION XII
REMEDIES FOLLOWING DEFAULT
A. Lessee's Monetary Default and Lack of Insurance
In the event of breach .by Obermeyer of the monetary or insurance covenants of this Agreement,
contained in Sections IV and XI, above, in addition to any other rights to which the City may be entitled by
law, the City may elect to give Obermeyer twenty (20) days written notice requiring payment of the rent
and/or other fees and charges, as required under provision of Section IV, above, then due and owing and/or
proof o£insurance, as required under provisions of Section XI, above, or in the alternative, surrender of
possession of the Leased Premises. Said notice shall be delivered to Lessee by way of U. S. registered
mail, return receipt requested, at the address specified in Section XX, below.
Where Obermeyer' s default results from failure to provide proof of insurance and Obermeyer is
proceeding with necessary diligence to obtain such proof of insurance, Obermeyer shall be entitled to an
extension of said twenty (20) day cure period, not to exceed however an additional twenty (20) days in
which to obtain the required Certificates of Insurance and provide proof of insurance to the City.
If such a default remains uncorrected after the twenty day cure period or an extension thereof with
regard to proof of insurance, the City, at its option, may terminate this Agreement and enter and repossess
the Leased Premises and all improvements, with or without process of law, and without liability for
Page 8 of 17
trespass or forcible entry and without prejudice to any other remedies to which the City may be entitled.
such event, Obermeyer agrees to peacefully surrender the Leased Premises to the City, as required by
Section XIII, below.
In
B. Lessee's Non- Monetary Default and Abandonment by Lessee
In the event of default by Obermeyer in the performance of its convents, agreements, and
obligations hereunder, other than those described in Subsection A, above, or in the event of abandonment
by Obermeyer of its operations on the Leased Parcels, in addition to any other rights to which the City may
be entitled by law, the City may elect to give Obermeyer thirty (30) day written notice requiring remedy of
the stated default or, in the alternative, surrender of possession of the Leased Parcels. Said notice shall be
delivered to Lessee by way ofU. S. registered mail, return receipt requested, at the address specified in
Section XX, below.
In the event of any default hereunder by Obermeyer, other than abandonment, where Obermeyer is
proceeding with necessary diligence to effectuate a remedy, Obermeyer shall be entitled to an extension of
such thirty (30) day period, not to exceed however an additional thirty (30) days in which to remedy the
default.
If such default or abandonment remains unCorrected after the thirty day cure period or an exl~ension
thereof, the City, at its option, may terminate this Agreement and enter and retake possession of the Leased
Premises and all improvements, with or without process of law, and without liability for trespass or
forcible entry and without prejudice to any other remedies to which the City may be entitled. In such event,
Obermeyer agrees to peacefully surrender the Leased premises to the City, as required by Section XIII,
below.
C. Waiver of Statutory Notice by Lessee
In the event of termination of this Agreement, as detailed in Subsections A and B, above,
Obermeyer waives the receipt of any notice to quit or other notice which may otherwise be required by
Colorado statute.
D. Waiver
No failure to strictly enforce the terms of this Agreement shall be deemed a waiver by either party
unless such waiver is in writing and executed by the party against whom enforcement of the waiver is
sought. No waiver by either party of any failure of a party to comply with any term or condition of this
Agreement shall be construed to be a waiver of any other failure by such party to comply with the same or
any other term or condition of this Agreement.
SECTION XIII
SURRENDER OF POSSESSION
AND TITLE TO IMPROVEMENTS
Upon expiration of the Base Term, or any extension thereof, or other termination of this
Agreement, Lessee's right to use and occupy the Leased Parcels and all improvement shall cease and
Lessee shall surrender the Leased Parcels and its rights and privileges under the provisions of this
Agreement to the City. Obermeyer shall leave the Leased Parcels and permanent improvements in good
and serviceable condition, except for normai wear and tear; remove all personal property; vacate the
premises without unreasonable delay; and execute and deliver to the City a quit claim deed bill of sale or
other appropriate document of conveyance transferring to the City all right, title and interest to the
remaining improvements, described in Section II, above, free and clear of liens and encumbrances.
Page 9 of 17
SECTION XIV
COMPLIANCE WITH LAWS, RULES AND REGULATIONS
The right to use and occupy the Leased Parcels shall be exercised in conformity ~ith the Statutes,
ordinances, codes, rules and regulations pertinent to Lessee's tenancy as such may be promulgated from
time to time by the City, Pitkin County, the State of Colorado, and the federal government.
Without limiting the generality of the covenants contained in this Section XIV, Obermeyer
specifically agrees to pay all levied property taxes and taxes levied upon its personal property and the
improvements to the Leased Parcels.
SECTION XV
INSPECTION OF LEASED PREMISES
The City or its designee shall have the right to enter the Leased Parcels at any reasonable time and,
except in the event of emergency, upon reasonable notice for inspection in the exercise of its governmental
or police powers and, specifically, to investigate compliance with the terms of this Agreement.
SECTION XVI
ASSIGNMENT
A. Consent
This Agreement shall not be assigned by Obermeyer without the prior written consent of the City.
The consent of the City shall not be unreasonably withheld. Lessee shall not convey an interest in
improvements independently from assignment of this Agreement. Notwithstanding the foregoing,
Obermeyer does have and shall have at all times the unrestricted right to sublease space on the Leased
Parcels; any such sublease shall be subject to the provisions of this Agreement.
B. Terms and Condition
The terms and conditions of this Agreement shall be incorporated into any document affecting an
assignment of this Agreement and Obermeyer shall provide the City a copy of the assignment document.
C. Subsidiar~
This Section shall not apply to the assignment by Lessee of this Agreement to a separate legal
entity wholly owned and controlled by Obermeyer for the purpose of business operations under this
Agreement, in accordance with Section II, above. Upon such assignment the successor entity shall~be
bound by the terms of this Agreement and no approval shall be required from the City for such assignment.
The City shall be notified by Obermeyer of the existence of such successor entity and shall be provided by
Obermeyer with a copy of the document assigning this Agreement to Obermeyer's successor entity and
with notice of the identity of the responsible party and contact information.
SECTION XVII
QUIET ENJOYMENT BY LESSEE
Upon payment of the rents, fees, and charges provided herein and upon observation of all
covenants, warranties, agreements, and conditions of this Agreement, Obermeyer shall have the right to
exclusive possession and enjoyment of the Leased Premises during the Base Term and any extension term
of this Agreement. Obermeyer recognizes that fee simple title to the Leased Parcels is vested in the City.
Obermeyer agrees that nothing herein shall give Obermeyer any ownership or option to own the Leased
Parcels.
Page 10 of 17
SECTION XVIII
CONSTRUCTION INCONVENIENCES
A. Construction by City of Aspen
Obermeyer recognizes that during the Base Term and any extension of this Agreement it may be
necessary for the City to engage in construction, maintenance and repair for the benefit of the existing
adjacent snow melting and recycle operations. Such activity may temporarily inconvenience or interrupt
Obermeyer's operations and will require accommodation; however, the City shall make reasonable efforts
to minimize such inconvenience or interruptions.
B. No Liability
Obermeyer agrees that no liability shall attach to the City its officers, agents, employees,
contractors, subcontractors and representatives by reason of such inconvenience, interruption, relocation,
or replacement. Obermeyer waives any right to claim damages for such, provided, however, that this
waiver shall not be construed as a waiver of any claim for physical damage to the personal property of
Obermeyer resulting from negligence or willful misconduct.
SECTION XIX
BINDING UPON SUCCESSORS AND ASSIGNS
All of the covenants, conditions, and agreements contained in this Agreement shall be binding
upon and inure to the benefit of the respective parties as well as their successors in interest ofany kind,
including assigns.
SECTION XX
NOTICE
Every notice or other communication required by this Agreement shall be delivered in writing to
the addresses stated below, unless a new address is provided by written notice of one party to the other.
Such notice of a change of address or of the identity of the contact person shall not require formal
amendment of this Agreement.
Lessee:
Obermeyer Redevelopment Company
ATTN: Timothy W. Belinski
115 AABC
Aspen, CO 81611
CC:
Thomas J. Todd, Esq.
Holland & Hart, LLP
600 East Main Street
Aspen, CO 81611-1953
Lessor;
City of Aspen
ATTN: CITY MANAGER and CITY ATTORNEY
130 S. Galena Street
Aspen, CO 81611
Page 11 ofl7
SECTION XXI
HEADINGS AND NUMBERING
The Section headings and numbering system used herein are for convenience in referencing and-
are not intended to define or limit the scope of any provision of this Agreement.
SECTION XXII
PARTIAL INVALIDITY
If any of the terms, covenants, conditions, or provisions of this Agreement shall for any reason be
held to be invalid or unenforceable, the remainder of the Agreement shall not be affected thereby and each
remaining term, covenant, condition and provision of this Agreement shall be valid and be enforced to the
fullest extent permitted by law unless the invalidity of a provision defeats the purpose of this Agreement.
SECTION XXIII
AMENDMENT
All amendments to this Agreement must be made in writing executed with the same formality as
this Agreement, except as detailed in Section XX, regarding change of notification information. No oral
amendment shall be of any force or effect whatsoever.
SECTION XXIV
MATERIALS AND ENVIRONMENTAL ISSUES
A. City Representations and Responsibilities
The City has no actual notice of or knowledge of any form of environmental 'degradation to the
Leased Parcels; however, the City makes no covenants or warranties, express or implied, regarding the lack
of environmental degradation.
Should the City become aware of the possible presence on the Leased Parcels of hazardous
material, i.e., a substance regulated by any governmental authority or agency having jurisdiction over
environmental or health risks, materials handling, or Wastes, including but not limited to, the State of
Colorado, Pitkin County, United States Environmental Protection Agency, the City shall investigate such
condition as soon as is reasonably possible.
Correction of such condition, if required by the authorized agency, shall be in accordance with
pertinent statutory and regulatory law. Obermeyer shall not be responsible for the cost of investigation or
correction unless such is required due to Obermeyer's or its employee's, contractor's, subcontractor's,
agent's or assignee's use and occupancy of and/or operations on the Leased Premises.
B. Limitations on .Obermeyer's Use of Hazardous Materials
Obermeyer shall not generate, use, handle, store, or dispose of or permit the Leased Parcels to be
used to generate, use, handle, store, or dispose of hazardous materials. No use of the Leased Parcels that
requires additional fire protection or environmental regulation shall be permitted without advance approval
by the City.
SECTION XXV
ATTORNEY'S FEES
Should this Agreement become the subject of litigation to resolve a claim of default in
performance by the City or Obermeyer, the prevailing party, in addition to such other relief as may be
granted, shall be entitled to attorney fees, expenses, and court costs. All rights concerning fees and costs
shall survive termination of this Agreement.
:Page 12 of 17
SECTION XXVI
CONTROLLING LAW
This Agreement shall be governed by the laws of the State of Colorado and venue of for all actions
shall be in Pitkin County, Colorado.
SECTION XXVII
RECORDING
Upon execution by all parties, this Agreement shall be recorded in the records of the City of Aspen
Clerk and Recorder.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals thisc:~O day of
February 2004.
LESSOR:
City of Aspen, Colorado
Cit)f Manager
LESSEE:
Obermeyer Redevelopment Company,
Timotl~y W. Belinski
(Title) Manager
STATE OF COLORADO )
) SS.
COUNTY OF P~TI~ i~ )
The foregoing instrument was acknowledged before me on this / ~ ~ day of ~Jrt~-r'ua~'t~x
2004, by (Title) and authorized agent or officer of Obermeyer --_3
Redevelopment Company.
Witness my hand and official seal.
My commission expires:
~~TAgY
Page 13 of 17
LAND LEASE AGREEMENT
EXHIBIT A
Page 14 of 17
I
I
/ t
INVERT ~ /7908,00
INSTAll SILT
OVeR
ONE- S TORY
t 0¢ \ FRA ME
BUILDING
F.F.. -- 7£~0.9
EAVE- 7917.8
PEAK ~
DUMPSTER
Rltd= 7910. 77
INV. OUT=?9OJ. 19
INV. IN SERV..=790J. gJ
PITKIN COUNTY ~,.
CLERK ~c RECORDERS OFFICE
TH REE- S TORY
BRICK BUILDING
F.F. - 7B13.9
MAIN ROOF ~ 7947.3
530 MAIN ST.
FROM HOUSE
TEMPERARY
"~IRE SPRINKLER AND EX"lEND
SYSTEM
Exhibit A
(page 1 of 2)
Land Lease Agreement
between THE CITY OF ASPEN COLORADO
and Obermeyer Redevelopment Company
Zupaneis Parcel shown for illustrative purposes
only. Note that the site engineering and design
work shown herein, including the location of
temporary structures, is hereby deemed tentative
and preliminary.
Leased Premises for the Zupancis Pm'eel shall
be deemed approximately 16,500sf for
purposes o£the Agreement
\
N,
'x
'"FIRE SPRINKLER [
I SYST£M r
TWO-STOR~,
WOOD FRAM
BUILDING
F.F. ~ 7903
FLAT ROOF = P
601 E. BL£Et(
ONE- S TORY
BLOCK GARAGE
F.F. = 7911.6
EAVE = 7919.0
PEAK - 7924.6
4 'SS
INSTALL 4'
SERVICE
ONE-STORY
WOOD FRAME
BUILDING
FF = 7914,1
EA YE = 7922. 7
PEAK = 7928. 7
540 MAIN ST,
3/4' WATER
TO BE ON
Ac
~X-SMh
RIM= 79t
INV. OU
DROP
INV. IN=
CONC~f TE
Exhibit A
(page 2 of 2)
Land Lease Agreement
between THE CITY OF ASPEN COLORADO
and Obermeyer Redevelopment Company
Recycle / Snowmelt Center Parcel shown for
illustrative purposes only. Note that the site
engineering and design work shown herein,
including the location of temporary structures, is
hereby deemed tentative and preliminary.
Leased Premises for the Recycle/Snowmelt
Center Parcel shall be deemed approximately
3,600sf for purposes of the Agreement
x ',,
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x.
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t
I I
I
/I/
LAND LEASE AGREEMENT
PERMANENT IMPROVEMENTS
EXHIBIT B
This Exhibit B is an accompanying and integral document to the Land Lease Agreement between the City
of Aspen and Obermeyer Redevelopment Company.
Permanent Improvements: General
Obermeyer Redevelopment Company accepts the responsibility for the scope of work items denoted
herein. The site for which such Permanent Improvements are to be constructed shall be known as
"Recycle Center", which is an area separately defined from "Recycle/Snowmelt Center Parcel" within the
Agreement. Such improvements arise from the construction of the Obermeyer Place project and the
public-private partnership integral to the development of the site, however, the Agreement and the
Permanent Improvements described herein are separate and independent transactions and shall be
restricted to the terms and .provisions described herein.
- Permanent Improvements: Site Location
For purposes of this Exhibit and for the purpose of delineating the scope of work encompassed by the
Permanent Improvements, Recycle Center encompasses the land to the north side of Rio Grande Place,
from the north edge of the entry to the Eagles Club parking lot to the westerly entry to the current
Recycle/Snowmelt Center Parcel. From the Eagles Club parking lot entry extending to the eastern entry to
the current Recycle/Snowmelt Center Parcel, Permanent Improvements shall generally encompass the
sidewalk area only. The Recycle Center Permanent Improvements shall continue from the eastern entry to
the western, entry, and shall extend to the north to the area currently encompassing the snowmelt
equipment and the perimeter landscape berm. Permanent Improvements shall extend northerly to the
current Rio Grande Trail pedestrian walkway although they shall not extend to the area intended for an
expanded skate park. Any expansion or reconfiguration of the skate park is excluded from Obermeyer's
scope of work.
Permanent Improvemems: Scope of Work
Obermeyer Redevelopment Company shall provide the following:
Architectural and landscape design, engineering, and construction of the Recycle Center,
inclusive of site improvements and a building to cover the recycle center operations (see item
#12, below). It is understood that the Recycle Center building shall be a non-heated, open
garage-type structure consisting of three walls and an open side facing to the north with a size
large enough to house six recycling dumpsters. The overall design shall be as low in height as
possible, shall be efficient .in size in order to provide the Rio Grande Park area to expand if
possible, shall operate as a daytime only operation, shall shield and minimize visibility of and
reduce the current level of noise from the dumpsters and loading areas from the Rio Grande
Place and from the Obermeyer Place project, shall accommodate adequate traffic circulation
according to final design plans, including drop-off and temporary parking for people using the
Recycle Center, shall provide improved access to the recycle dumpsters by individuals using
the service, and shall accommodate the operations of Pitkin County Resource Recovery in a
form largely consistent with current operations. The City of Aspen shall be allowed to
comment on and approve the proposed aesthetic improvements with the understanding that the
final design'shall shield and minimize visibility of the dumpsters and loading areas from the
Page 15 of 17
o
9.
10.
11.
Obermeyer Place project (per Ordinance no. 18, Series 2003). The site design will utilize the
City's Rio Grande Master Plan in effect as of January 1, 2005 as the guide for site
improvements to the Recycle Center area.
Demolition and site preparation, including the removal of the current snowmelt equipment,
effluent piping, utility lines and meters, and the transportation of the equipment for storage to
a site to be designated by the City within twenty miles of the current location.
Grading and on site drainage improvements, including asphalt paving and parking curb stops.
Asphalt shall be designed and constructed using 8" compacted backfill with a minimum of
95% modified proctor density, followed by hot bituminous paving a minimum of 5" thick,
placed in two lifts per the City's standard shallow utility trench details.
Utilities extended to the north side of Rio Grande Place, in conjunction with a single street cut,
including the following services:
a. Extension of domestic water to the Recycle Center, capped. The City shall pay any
corresponding water tap fee.
b. Natural gas service re-routed from snowmelt equipment, capped.
c. Electrical service to accommodate the electrical specifications provided by the City
and configured for the current amount and mix of uses On the south side of Rio
Grande Place.
d. Storm drains, including inlet/outlet of typical storm sewer pipe and tie-in to storm
system. Any related storm water fee or sewer fee Shall be paid by City.
Payment to the City of $10,000 to go towards construction of the storm water interceptor
device or other such storm sewer system improvements in the vicinity of the Recycle Center.
Payment to be made upon commencement of permanent improvements to the Recycle Center
area.
.Street speed hump along Rio Grande Place in one location near the Recycle Center. New
sidewalk and curb (detached, non-dyed concrete) from Eagles Club entry to western entry of
Recycle Center. Provide ADA handicap access ramp for the western entry of the Recycle
Center street crossing. None of the pavement or hardscape shall be snowmelted
Landscaping the Recycle Center, including shrubbery (30 count) along the perimeter berm
common to the Oklahoma Flats residential neighborhood and at entry points to Recycle
Center. Broad leaf trees (4" caliper) along street at 20' intervals, planted between curb and
sidewalk. Sod installed between sidewalk and curb. Irrigation to all new landscaping as
needed. The City of Aspen will review and approve the landscape plan to ensure it meets the
site requirements in terms of design before completion of the landscape plan in this area. The
landscape contractor will coordinate with the City of Aspen before commencing landscaping
activities to ensure that irrigation connections and utilities are clearly identified and located.
Steel pipe bollards (6") at utilities stub up areas.
Paint parking space in Recycle Center, street crossings, and bollards.
Electrical service to the Recycle Center shall include two electrical outlets (110V), four
sidewalk light fixtures along Rio Grande Place, and the installation of an emergency 9-1-1 call
station. There shall be no site lighting for the Recycle Center, which shall remain a daytime
only operation.
City Ordinance No. 18, Series 2003, Section' 12, calls for the cessation and removal of the
mechanical snow melter equipment. Obermeyer shall perform this work at Obermeyer's
expense. Such work shall be performed at Obermeyer's discretion after providing 30-day
written notice to the City, and shall occur no sooner than March 31, 2006, thereby saving the
City the estimated $100,000/year in snow hauling costs during the winters of 2004-2005 and
2005-2006. Upon occupancy of a residential unit at Obermeyer Place, use of the snow melter
will be restricted to daylight hours.
Page 16 of 17
12.
13.
Per City Ordinance No. 18, Series 2003, Section 13, the Obermeyer Place project was required
to pay the City the sum of $125,000 toward the improvement of the recycling facility
("Recycle Center Funds"), either as improvements to the current location or as improvements
to an alternative location. Insofar as the City accepts the terms and provisions of this
Agreement, such requirement imposed by the City by way of the Ordinance shall be deemed
satisfied and fulfilled by Obermeyer Place Holding Company as developer of the Obermeyer
Place project. The Permanent Improvements described herein shall encompass the use of the
Recycle Center Funds plus other funds deemed compensation for Base Term Ground Rents
(per Section IV of the Agreement). It is understood that Obermeyer and the City shall work in
unison toward an acceptable design of the Recycle Center, specifically providing for a
signature approval of said design by the City of Aspen Parks Department and the Pitkin
County Public Works Department.
When Obermeyer begins the mass excavation of the site, both Obermeyer and the Parks
Department will create a plan for efficiently handling boulders such that theParks Department
shall have the first right to accept all boulders excavated from Obermeyer Place that are not
needed by Obermeyer. As such boulders are excavated from the Obermeyer Place site,
Obermeyer will relocate them to a designated receiving area north of Recycle Center, via a
City-approved access route.
Permanent Improvements: Timing
Permanent Improvements shall be completed no later than nine months following the x/acation of the
Recycle/Snowmelt Center Parcel as described in Section III, paragraph B, of the Agreement.
Page 17 of 17