HomeMy WebLinkAboutresolution.council.075-98
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RESOLUTION NO.1S..
Series of 1998
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A LEASE
AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND UTE
MOUNTAINEERING, me., AND AUTHORIZING THE CITY MANAGER TO EXECUTE
SAID DOCUMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a lease agreement between the
City of Aspen, Col~rado and Ute Mountaineering, Inc. a copy of which contract is annexed hereto
and made a part thereof.
NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO:
Section One
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That the City Council of the City of Aspen hereby approves that certain lease agreement
between the City of Aspen, Colorado, and Ute Mountaineering, Inc. 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 contract on behalf of the City of Aspen.
Dated:
03/::>-3#1
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,1998.
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I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that e 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 ~ /?
,1998.
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AGREEMENT FOR THE LEASE AND OPERATION
OF
THE NORDIC CENTER AT THE CITY OF ASPEN GOLF COURSE
THIS AGREEMENT entered into at Aspen, .Colorado, this
day of ,199 ,by and between the CITY OF ASPEN,
COLORADO, a municipal corporation and home-rule city ("hereinafter "City"), and THE
UTE MOUNTAINEER, INC., a Colorado corporation (hereinafter "Operator").
WIT N E SSE T H:
WHEREAS, the City is the owner of the Aspen Championship Golf Course and golf
pro shop in Aspen, Colorado, and desires to contract with an operator to provide certain
services during the winter seasons for the operation of a nordic center at the building
commonly known as the golf pro shop building, hereinafter referred to as the "Premises"; and
WHEREAS, Operator now operlltes a retail sporting goods shop in Aspen, Colorado,
has experience in managing ski rental operations and cross-country ski instruction and desires
to contract with the City to provide the above-described services; and
~ WHEREAS, Operator has agreed to provide certain services relative to the winter use
of the golf course, as well as provide services regarding the general operation of the nordic
center;
NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions
contained herein, the parties agree as follows:
1. Term. Subject to the terms and conditions. set forth in that certain Professional
Services Agreement between the City and Aspen Sports, Inc., dated September 22, 1994, for
the use of the golf pro shop located on Highway 82 adjacent to the Aspen Championship Golf
Course, Aspen, Colorado, the City hereby grants Operator the exclusive right to use the
Premises for the period of November 1, 1998, to April 1, 1999. In addition, Operator shall
have the right to extend this lease agreement for the period of November 1, 1999, to April 1,
2000, provided Operator exercises this right to extend by giving the City written notice on or
before September 1, 1999. Operator acknowledges receipt of the Aspen Sports, Inc.
Agreement and that its rights are subordinate to the rights of Aspen Sports, Inc. thereunder.
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2. Premises. The Premises subject to this Lease Agreement shall be the
approximately 2,500 square feet of offices, restrooms/locker rooms, storage rooms, repair
room and open area space located within the building commonly known as the golf pro shop
building and further described in Exhibit" A" which is attached hereto and incorporated herein
by this reference.
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3. Use. The PremiseS may be used by Operator solely for the purpose of operating
a nordic center and providing services .related thereto, including, but not limited to, retail sales
of nordic skiing equipment, clothing and supplies, for renting nordic skiing equipment to the
public, for storage facilities, for use as a nordic center, for nordic skiing lessons, for any and
all uses reasonably attendant to nordic skiing. Operator shall not use the Premises for any
other purposes without the City's written consent. Operator's use and occupancy of the above-
described Premises shall comply with the rules, regulations and ordinances of any
governmental authority having jurisdiction over the Premises or the activities performed
thereon. Additionally, Operator shall not use the Premises in any manner that will create an
increase in the rate of insurance or a cancellation of any insurance policy, even if such use may
be in furtherance of Operator's retail sales. Operator shall not keep, use or sell anything
prohibited by any policy of fIre insurance covering the Premises. Operator agrees to cooperate
with Aspen Sports, Inc. in determining the storage needs of Aspen Sports, Inc. during the
winter season and to reasonably accommodate such needs provided that any such
accommodation does not interfere with Operator's rights hereunder.
4. Time of Occupancv. Acce1;ltance and Surrender of Premises. Operator shall be
entitled to use and occupy the Premises during the winter skiing season as set forth at
Paragraph 1 herein. Occupancy of the Premises by the Operator shall be construed as
recognition that the Premises are in a good state of repair and in sanitary condition. Operator
shall surrender the use and occupancy of the Premises on or before April! (or such later date
if the winter ski season is extended as mutually agreed by the City, Operator, and Aspen
Sports, Inc:) of each year this agreement is in effect. The provision herein for use and
occupancy of the Premises may be varied on written understanding of the parties, Operator
shall coordinate with Aspen Sports, Inc. to insure change in possession is orderly and timely in
accordance with the agreement between the City and Aspen Sports, Inc. A representative of
the City shall inspect the Premises at the end of each season's occupancy both summer and
winter, with a representative from Aspen Sports and Ute Mountaineer, Inc. to assess if any
repairs are necessary and who shall be responsible for them.
5. Rent. Operator agrees to pay a total of $7,000.00 per winter season to the City
as rent for the Premises, payable as follows: $1,750.00 shall be due and payable on the first
day of November, December, January and February of each winter season.
6. Access to Premises. City shall be entitled to enter upon the Premises at all
reasonable hours for the purpose of inspecting the same, preventing waste or loss, or enforcing
any of City's rights hereunder.
7. Duties of Ooerator Relative to Operation of Nordic Center. During the term of
this Agreement the Operator agrees:
a.
To provide the nordic-related services described in this Agreement for
each winter season for which this Lease Agreement is in effect.
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b.
To employ and maintain for the benefit of the parties, at Operator's own
cost and expense, employees of sufficient number and qualifications to
operate and manage the Premises consistent with the highest professional
standards of quality and courtesy.
c. To perform the following general duties, at the discretion of Operator:
i. Operate a ski school which will offer programs for skiers aged
three through senior citizen.
ii. Establish a senior citizens program.
iii. Maintain a wide range rental inventory sufficient to meet the
projected needs and demands of the programs offered.
iv. Operate as a nordic center to provide information and to act as a
clearing house for nordic activities and to coordinate with the
AspenlSnowmass nordic Council to maximize exposure and use
of the nordic trail system.
d.
To keep full records and accounts in regard to the operation and
management of the Premises, which records and accounts shall be
available at the end of the winter season for inspection by the City's
auditors and/or Finance Director.
e. To make available forretail sale such merchandise as is commonly sold
jn nordic-oriented retail stores; Operator agrees to maintain an adequate
inventory of such merchandise. Operator shall devote its best energies
and adequate time to the promotion of sales at the Premises and may
engage in similar sales at its business locations in the City of Aspen,
provided such off-premises sales do not interfere with Operator's duties
hereunder.
f. To clear those sidewalks, decks and stairs that provide reasonable access
to the Premises.
8. Duties of the City Relative to the Nordic Center. During the term of this
Agreement the City agrees:
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a.
To maintain the ski tracks and the teaching tracks on the golf course
property from Thanksgiving until April I. As Operator is largely
dependent on the trail system for its revenues, should the City be unable
to continue the maintenance of the trails for any reason Operator shall be
released from its obligations under the lease until such time as the City is
able to resume its duties in this regard.
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b. To permit Operator to use the Premises for Operator's sole use and
occupancy with respect to its duties and privileges under this Agreement.
c. To plow or arrange for the plowing of the entrance to the Premises from
Highway 82 and an area adequate for parking for customers of Operator
and users of the ski track courses on the adjacent golf course.
9. Maintenance and Repairs. Operator, at its sole expense, shall keep the
Premises, including outdoor walks and accessways, in a good, clean and safe condition and do
all work and repair necessary to maintain same and to keep it from deteriorating, with the
exception of wear and tear and aging consistent with normal use as a nordic skiing center as
described herein.
10. Utilities and Security Svstem. Operator shall, at its own expense, provide all
water, heat and electric utilities, and telephone service for the building. A Security System has
been installed at the expense of City, but maintenance and service charges for the security
system shall be paid by Operator during the time that it occupies the building.
11. Personal Property. All personal property and trade fIxtures placed on the
Premises shall be at Operator's sole risk and City shall not be liable for damage to or loss of
r such personal property or trade fIxtures arising from the acts or neglect of Operator, its agents
or employees. Any personal property or trade fixtures of Operator or anyone claiming under
Operator, which shall remain on the Premises after the date upon which the Premises shall be
surrendered shall be deemed to have been abandoned and may be retained by City as its
property or disposed of by City in such a manner as City sees fIt.
12. Taxes. In the event any taxes are levied and assessed upon the Premises or
upon the improvements, fIxtures or personal property of the Operator during the term of
Operator's occupancy of the Premises or arising therefrom, or upon the leasehold or
possessory interests as created through this lease, Operator shall be solely responsible to satisfy
and pay all such taxes in a timely fashion. Operator shall not allow any liens for taxes or
assessments to exist with respect to the Premises, except that Operator may permit such taxes
or assessment to remain unpaid while pursuing any good faith contest or appeal of same.
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13. IndemnifIcation. Operator agrees to indemnify and hold harmless the City, its
officers and employees, from and against all liability, claims, and demands, on account of
injury, loss, or damage, including, without limitation, claims arising from bodily injury,
personal injury, sickness, disease, death, property loss or damage, or any other similar loss,
which arise out of or are in any manner connected with this Agreement, if such injury, loss, or
damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the
omission, error, or negligence of the Operator, any subcontractor of the Operator, or which
arises out of any workmen's compensation claim of any employee of the Operator or of any
employee of any subcontractor of the Operator. .
r- 14. Public Liability Insurance. Operator agrees to furnish City with certificate(s) of
insurance as proof that it has secured and paid for a policy of public liability insurance
covering all public risks related to the leasing, use, occupancy, maintenance, operation or
location of the Premises. The insurance shall be procured from a company authorized to do
business in the State of Colorado and be satisfactory to City. The amount of this insurance,
without co-insurance clauses, shall not be less than the maximum liability that can be imposed
upon the City of Aspen under the laws of the State of Colorado found at C.R.S. 24-10-101 et
sea., as amended. At present, such amounts shall be as follows:
$150,000.00 for any injury to one person in any single occurrence;
$600,000.00 for any injury to two or more persons in any single occurrence.
In no event shall such insurance amounts fall below those maximum liability limits as
set forth at C.R.S. 24-10-114, as amended.
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15. Premises Insurance. During the full term of this Agreement, Operator, at its
sole cost and expense, shall also cause all of the furniture, fixtures, and equipment in the
premises to be kept insured, without co-insurance clauses, to the full insurable value against
the perils of wind, storm, hail, lightning, explosion, fire and like perils. "Full insurance
value" means the cost, as of the date of loss, for replacement of the damaged or destroyed
property in a new condition with materials of like size, kind and quality, The insurance shall
stand as primary insurance for the furniture, fixtures, and equipment in the Premises to be
procured from a company authorized to do business in the State of Colorado and be
satisfactory to the City. All policies as required herein shall contain a waiver of subrogation
by the insurer against City.
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16. Termination Due to Fire or Similar Catastrophe. If, absent negligence or fault
on the part of Operator, the Premises shall be damaged by fire or other catastrophe so as to
render said Premises wholly untenantable, and if such damage is so great that a competent
licensed architect in good standing in Pitkin County, Colorado, as selected by the City within
fourteen (14) days from the date of loss, shall certifY in writing to the City and Operator that
the Premises, with reasonable diligence, cannot be made fit for occupancy within ninety (90)
days from the happening of the occurrence of the damage, then.this Agreement may terminate
and City may re-enter and take possession. Such a termination of the Agreement shall not
forgive Operator's obligations to return the Premises to City in as good repair as when
operator originally assumed possession thereof, regular and ordinary Wear and tear excepting.
Alternatively, Operator shall subordinate its rights and interests in any insurance proceeds as
provided for in any insurance policy as required by this Agreement. If, however, the damage
is not such as to prevent reoccupation and use of the Premises within ninety (90) days, then
repairs thereto shall be undertaken by Operator with all reasonable speed to restore the
Premises to its former condition and the Agreement shall remain in effect. Operator's duties.
and obligations to provide services and to pay rent to the City as herein set forth shall be
suspended during those time periods wherein the Premises are unfit for normal business
activities due to fire or other catastrophe, and/or repair activities associated therewith.
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17. City to be Named a Co-Insured or Additional Insurance. Operator shall name
City as co-insured or additional insured on all insurance policies and such policies shall include
a provision that written notice of any non-renewal, cancellation or material change in a policy
by the insurer shall be delivered to City thirty (30) days in advance of the effective date.
18. Repairs and Alterations bv Operator. Operator, upon City's written consent,
may, at its own expense, make reasonable and necessary alterations or improvements to the
Premises. All alterations, additions and improvements shall be performed in a workmanlike
manner, in accordance with all applicable building and safety codes, and shall not weaken or
impair the structural strength or lessen the value of the Premises. All alterations, additions and
improvements made in or to the Premises shall be the property of City and remain and be
surrendered with the Premises upon termination of this Agreement. Operator agrees that prior
to any construction or installation of alternations, additions or improvements, Operator shall
post on the Premises in a conspicuous place a notice of non-liability for mechanic's lien as
specified at C.R.S. Section 38-22-105 on behalf of the City and shall notifY City of such
posting and the exact location of same. Perfection of a mechanic's lien against the Premises as
a result of Operator's acts or omissions may be treated as a material breach of this lease.
19. Repairs and Alterations bv City. City reserves the right, from time to time, at
its own expense and by its officials, employees and contractors, to make such alterations,
~ renovations or repairs in and about the Premises, other than those noted above as required by
Operator, as City deems necessary or desirable and Operator covenants to make no claim
against City for any interference with its interest as herein provided in the Premises. City shall
provide reasonable notice to Operator in advance of any intent to undertake alterations or
repairs as authorized in this paragraph and all work shall be performed at such times as
mutually agreed to between the parties so as to eliminate or minimize any disruption of
Operator's business.
20. Condemnation. If during the term of this Agreement, 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 City,
for public use, then this Agreement 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. Operator shall not be entitled to any part of any condemnation
award for the value of the unexpired term of this Agreement or for any other estate or interest
in the Premises, such amount belonging entirely to City.
21. Assie:nment of Agreement. Operator shall not assign, pledge, sublease or
otherwise dispose of or encumber this lease, or the leased Premises, without the prior written.
consent of the City. Operator shall, likewise, not permit any third party to occupy or use the
Premises absent the prior written consent of the City.
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22. Sie:ns. Operator shall not place any signs upon the Premises or upon the
buildings except of such design and construction as may be permitted by City. It is understood
f""". by the parties that placement of an identification sign or signs is important and necessary to
Operator's business. Any sign permitted by City shall at all times comply with applicable
ordinances, rules and regulations.
23. Breach bv O{lerator Defmed. If Operator shall fail to timely comply with any of
the terms or conditions of this Agreement or any notice given under it, or shall become
insolvent, or shall have or attempt to make an assignment for the benefit of creditors, or if any
of its property be attached and such attachment is not promptly released, or if an execution be
issued against it, or, if a petition be filed by or against it, to have it adjudicated a bankrupt, or
if a trustee or receiver shall be created or appointed to take charge of its assets, or if it shall
abandon the Premises for a period of more than seventy-two (72) hours then at any time
afterwards City may treat such act or omission as a breach of this Agreement and, at its option,
enter into the Premises and remove all persons and take and retain possession thereof either
with or without process of law.
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24. City's Remedv for Breach. Any breach, default or failure by Operator to
perform any of the duties or obligations assumed by Operator under this Agreement shall be
cause for termination of the Agreement by City in the manner set forth in this paragraph. City
shall deliver to Operator thirty (30) days' prior written notice of its intention to terminate this
Agreement, including in the notice a reasonable description of the breach, default or failure. If
within that thirty (30) days Operator shall fail or refuse to cure, adjust or correct the breach,
default or failure to the reasonable satisfaction of City, the City shall have the right to declare
this Agreement terminated and all rights, powers and privileges of Operator as provided
through the Agreement shall cease, and Operator shall immediately vacate the entire Premises
and shall make no claim of any kind against City by reason of the termination. The thirty (30)
days' prior written notice shall be conclusively determined to have been delivered to Operator
by the posting of same upon the main business entrance to the Premises, or at the time it is
deposited in the U.S. Mail, certified, postage prepaid, addressed to the address set forth at
Paragraph 29 herein.
25; Non-Waiver of Rights. Any failure by City to so terminate this Agreement as
herein provided after the breach, default or failure by Operator to adhere to the terms of the
Agreement shall not be deemed or construed to be a waiver or continuing waiver by City of
any rights to terminate the Agreement for any present or subsequent breach, default or failure.
26. Termination bv Operator. Operator may terminate this Agreement and be
relieved of all obligations hereunder.by providing City thirty (30) days' written notice of its
intent to terminate. Upon receipt of such notice, City may participate in the operation of the
nordic center with Operator to accommodate the transition of the nordic center management
from Operator to the City. Operator shall provide a full accounting of all funds, costs and
. equipment upon termination.
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27. Non-Discrimination. Operator agrees to comply with all laws, ordinances, rules
and regulations that may pertain or apply to the Premises and its use. In performing under the
Agreement, Operator shall not discriminate against any worker, employee or job applicant, or
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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.
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28. Independent Contractor Status. It is expressly acknowledged and understood by
the parties that nothing contained in this Agreement shall result in, or be construed as
establishing an employment relationship. To the extent that this Agreement may be construed
as requiring Operator to provide servjces to or on behalf of City, Operator shall be, and shall
perform as, an independent contractor who agrees to use his or her best efforts to provide the
said services on behalf of the City. No agent, employee, or servant of Operator shall be, or
shall be deemed to be, the employee, agent or servant of the City. City is interested only in
the results obtained under this Agreement. The manner and means of conducting the work are
under the sole control of operator. None of the benefits provided by City to its employees
including, but not limited to, workers' compensation insurance and unemployment insurance,
are available from City to the employees, agents or servants of Operator. Operator shall be
solely and entirely responsible for its acts and for the acts of Operator's agents, employees,
servants and subcontractors during the performance of this Agreement. Operator shall
indemnify City against all liability and loss in connection with, and shall assume full
responsibility for, payment of all federal, state and local taxes or contributions imposed or
required under unemployment insurance, social security and income tax law, with respect to
Operator and/or Operator's employees engaged in the performance of the services agreed to
herein.
29. Notice. Whenever this Agreement calls for or provides for notice and notice is
not otherwise specified, the same shall be provided in writing and shall be served on the
person(s) as designated by the parties below, either in person or by certified mail, postage
prepaid and return receipt requested.
For City:
Aspen City Manager
130 South Galena Street
Aspen, Colorado 81611
For Operator: Ute Mountaineer, Inc.
308 South Mill Street
Aspen, Colorado 81611
The parties may change or add such designated person(s) or addresses as may be
necessary from time to time in writing.
30. Binding Effect. All of the terms and conditions as contained in this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of the parties.
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31. Controlling Law. This Agreement shall be enforced and interpreted in
accordance with the laws of the State of Colorado. Any action brought to enforce or interpret
this Agreement shall be brought in the District Court in and for Pitkin County, Colorado. In
r" the event of litigation between the parties concerning this Agreement or matters arising
therefrom, the prevailing party shall be awarded its costs and reasonable attorney's fees.
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32. Entire Agreement. This instrument constitutes the entire Agreement by the
parties concerning the Premises and shall supplant and supersede any previous agreements
between the parties pertinent to the Premises. Any prior or contemporaneous oral or written
agreement that purports to vary from the terms as set forth herein shall be void and of no
effect.
33. Amendments. Except as otherwise provided herein, this Agreement and all of
its terms and conditions may not be amended or modified absent a written agreement duly
executed by the parties.
WHEREFORE, the parties, through their duly authorized representatives, have
executed this Agreement upon the dates as forth herein.
THE CITY OF ASPEN, COLORADO
By:
Amy L. Margerum, City Manager
ATTEST:
Kathryn S. Koch, City Clerk
OPERATOR:
UTE MOUNTAINEERING, INC.
By:
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EXHIBIT A
The Golf Pro Shop Building is located at 39551 State Highway 82, Aspen, Colorado. The
Premises is located within the two story building and subdivided into offices, restrooms/locker
rooms, storage rooms, repair room and open area for the purpose of retail sales.
EAA.09/23/98"9:\john\word\agr\NORDIC.AGR