Loading...
HomeMy WebLinkAboutresolution.council.007-04RESOLUTION NO. ~ Series of 2004 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR PURCHASE OF A FUTURE VISITOR CENTER AT THE NORTHWEST CORNER OF GALENA AND MAIN STREETS, BETWEEN THE CITY OF ASPEN AND MILLENNIUM PLAZA, LLC, AND AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a Contract for purchase of real property, between the City of Aspen and Millennium Plaza, LLC, a tree and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves that Contract for purchase of real property between the City of Aspen and Millennium Plaza, LLC, a copy of which is annexed hereto and incorporated herein, subject to the successful negotiation of a long term lease with the Aspen Chamber and Resort Association for the space to be purchased, and does hereby authorize the Mayor or City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the Aspen on the __ day of ., 2004. 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 on the day~~5/~f,~f' Lease Agreement ACRA - Visitors' Center THIS AGREEMENT is made between the CITY OF ASPEN, COLORADO, a political subdivision and body corporate ("Lessor"), and the ASPEN CHAMBER AND RESORT ASSOCIATION, 1NC., a Colorado non-profit corporation ("Lessee"), and executed on the date(s) as indicated below. Recitals a. Lessor intends to acquire ownership of a portion of a building located on the NW comer of Main and Galena Streets in Aspen, which includes within it certain floor area and space suitable for offices and business purposes as more fully described below.' b. Lessee desires to lease such floor area and space for the purpose of conducting its business activities as a chamber of commerce and resort association. c. Lessor has determined that the floor area and space as described below is not now, nor will it during the term of this lease, be needed by Lessor for public purposes and that it is, therefore, in the public interest to lease such premises under the terms and conditions as set forth herein. d. The parties hereto intend this agreement to supercede any and all previous agreements relating to the lease of the premises from the City of Aspen including that certain Lease Agreement between the City and Lessee relating to space at 425 Rio Grande Place in the City of Aspen.. Leased Premises and Term 1. The parties hereto hereby agree to terminate that certain Lease Agreement relating to leased space at 425 Rio Grande Place as of the lease commencement date set forth in section 2 below. Lessor hereby leases to Lessee that portion of the ., Aspen, Colorado, consisting of approximately 2,800 to 3,000 square feet of finished space (including common space) and which is more fully described and depicted on Exhibit "A" attached hereto and which by this reference is fully incorporated herein for all purposes (the "leased premises" or "premises".) 2. The term of this lease shall be twenty (20) years commencing one month after completion of the building and receipt of a certificate of occupancy, provided the lease is not sooner terminated by a breach of the terms or conditions set forth herein by Lessee. This lease is contingent upon the successful completion of the building by the developer and the successful purchase of a portion of the building by the City of Aspen. 3. Lessee may extend the term of this lease for one (1) additional term of five (5) years upon giving the Lessor written notice of its intent to do so six (6) months prior to the expiration of the initial twenty (20) year term. In the event Lessee chooses to extend the term of this lease by providing Lessor timely notice as provided above, Lessor and Lessee shall use their best good faith efforts to determine and agree upon a new monthly or annual rent and utility service charge as described in Paragraph 5 below. All other terms and conditions shall remain as provided herein. In the event the parties cannot mutually negotiate and agree upon a new rent amount prior to the commencement of a new lease term, then each party shall employ an appraiser knowledgeable in the Aspen market and the two appraisers so employed shall determine the new rent. If the two appraisers shall be unable to agree upon a new rent, the two shall select a third appraiser and the three appraisers so employed shall determine the rent. Should the appraisers fail to establish a new rent prior to the commencement of a new lease term, Lessee shall continue to pay that rent as then in effect for the present lease term until the new rent has been fixed, at which time the difference between the rent so paid and that payable under the new rate from the beginning of the new lease term shall be paid to Lessor by Lessee. 4. The parties hereto acknowledge that the Contract to purchase a portion of the building by the Lessor includes a provision that allows Lessor to improve the space beyond its delivered condition up to $200,000.00 in internal improvements and finishes at the developer's expense and included in the owner's purchase price. The parties hereto shall work jointly to identify those finishes and internal improvements subject to the $200,000.00 allowance. Any amoun~ by which the finishes or improvements exceed this amount shall be the responsibility of the lessee. Rent and Utilities 5. Lessee shall pay Lessor at the offices of the City of Aspen Finance Director, rent for the leased premises in the sum of $4,167.00 payable and due on the fifteenth (15th) day of each month. The monthly rent shall be deemed to include utility costs including water, gas, electric, sewer and trash and exterior building maintenance. The rent does not include the following items, which are the sole responsibility of the lessee: telephone, intemet, janitorial, interior maintenance and replacement, cable television, and all other such expenses. The monthly rent shall be increased on each anniversary date of the term of the renewal period by the percentage increase in the Urban Index during the twelve months ending on September 30 of each calendar year. (Urban Index and a description of calculating index changes is attached hereto as Exhibit "B".) 2 6. To secure payment of rent here agreed to be paid, Lessee grants to Lessor a lien on all of Lessee's equipment, furniture and other personal property that is placed on the leased premises by Lessee, such lien to be subordinate to all previously existing liens asserted against said property as of the date of this agreement. 7. Upon Lessee's failure to pay any of the rent or utility service installments on the dates specified above, Lessor may terminate this lease by written notice to the Lessee following such non-payment and a grace period of five (5) days and recover from Lessee all damages Lessor may incur by reason of Lessee's breach, including the cost of recovering the premises, reasonable attorney's fees, and the amount of rent and other charges reserved in this lease for the remainder of the stated term. 8. Lessee, at the sole discretion of Lessor, may cure a default in making timely rent or utility service payments by tendering the full past due amount(s) along with an additional payment equal to one percent (1%) of the past due amount(s) for each day beyond the date any payment is due. Use of the Premises 9. The leased premises shall be used only by Lessee and only for purposes consistent with conducting its business as a chamber of commerce and resort association. Such use may include utilization of the premises for a tourist information/transportation center. 10. Lessee shall not assign, transfer, sublease, pledge, surrender or otherwise encumber or dispose of this lease or any interest or estate created herein, or permit_ any other person, persons, company, corporation, or organization to occupy or use the premises without first obtaining the written consent of the Lessor. Such consent may or may not be given at Lessor's sole discretion. 11. Lessee shall not erect, install, operate nor cause nor permit to be erected, installed or operated in or upon the leased premises any sign(s) or other advertising device without having obtained the written consent of the City Manager for the City of Aspen. Such consent may or may not be given at Lessor's sole discretion. Such approval shall not unreasonably be withheld as long as the proposed signage then meets current City rules and regulations. Services 12. Lessor, and at Lessor's cost and expense shall cause certain improvements to be installed and completed in and upon the leased premises, including, but not limited to, rough in electrical lines, rough in plumbing, and heating and cooling systems, sufficient to meet Lessee's needs and Lessor acknowledges that it has 3 reviewed all proposed construction plans and accepts same as suitable for its purposes. This is separate and apart from finishes noted in section 4 above. 13. Lessor shall provide or cause to be provided reasonable amounts of electricity, hot and cold running water and heat to the premises, as well as air- conditioning for those areas within the leased premises as agreed upon and installed pursuant to the installation of the improvements as described herein. In the event Lessee desires or is required by business necessity to add new equipment or expand existing equipment, thus creating an increased demand for electrical, water, heating or air-cooling services or systems, Lessor shall be entitled to review any such proposal of Lessee for purposes of determining the need to increase the charge as set forth above and impose an increased charge if Lessor deems same to be necessary based upon actual billing statements as provided by the utility service provider. Maintenance of Premises 14. Lessor shall, at its own expense, keep the roof, structural parts of the floor, walls and other structural parts of the premises in good repair and make necessary structural repairs not occasioned by Lessee's negligence upon written notice by Lessee. Additionally, Lessor shall maintain, to the satisfaction of Lessee, heating, ventilation and air-conditioning systems servicing the leased premises in good and sufficient operating condition. All other repairs shall be made by Lessee at its cost and expense. 15. Lessee shall, at its own expense, keep and maintain the leased premises and entrance ways leading thereto in good condition and do all work or repairs necessary to keep the premises in a safe condition and from deteriorating with the exception of normal wear and tear and aging consistent with normal office usage and time. Lessee shall also maintain the premises consistent with all applicable taws, ordinances, or governmental safety regulations applicable to the premises. In these respects, Lessee shall permit Lessor, through its officers and agents, to make inspection of the premises at any time so as to determine compliance with this agreement. 16. Lessor shall in no way, nor under any circumstances, be responsible for any property of the Lessee, its employees or agents, customers, or invitees that may be stolen, destroyed or in any way damaged while on the leased premises, and Lessee agrees to indemnify and hold harmless Lessor from any such claim. Insurance and Liability 17. It is expressly agreed that Lessee shall occupy and operate the leased premises as an independent contractor and not as an agent, representative or employee of Lessor. Lessee shall be solely responsible for the acts and omissions 4 of its employees and agents and nothing herein shall be construed as creating a partnership or joint enterprise between Lessor and Lessee. 18. Lessee agrees to indemnify, defend and hold harmless Lessor, its employees, officers and agents from and against any and all claims or suits for property loss or damage and/or personal injury or loss, including death, to any and all persons whether real or asserted, arising out of or in connection with the leasing, maintenance, use or occupancy of the leased premises. Lessee shall, likewise, indemnify Lessor for all injury or damage to the leased premises arising from the use, occupancy or maintenance of such premises, whether caused by Lessee, its employees, agents, or invitees, or other third persons. 19. Lessee agrees to furnish Lessor 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 leased premises. The insurance shall be procured from a company authorized to do business in the State of Colorado and be satisfactory to Lessor. 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. Section 24-10-101 et se$., 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. These insurance amounts may be revised upward at Lessor's option and Lessee shall do so within ninety (90) days following notice to Lessee of such new required insurance amounts. In no event shall such insurance amounts fall below those maximum liability limits as set forth at C.R.S. Section 24-10-114, as amended. 20. If, absent negligence or fault on the part of Lessee, the leased 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 Lessor, shall certify in writing to the Lessor and Lessee 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 the lease shall terminate and Lessor may re- enter and take possession. Lessee shall pay rent, duly apportioned, up to the time the lease shall be terminated as herein provided. Such a termination of the lease shall not forgive Lessee's obligations to return the premises to Lessor in as good repair as when Lessee originally assumed possession thereof, regular and ordinary wear and tear excepting. Alternatively, Lessee shall subordinate its rights and interests in any insurance proceeds as provided for herein. 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 Lessee with all reasonable speed to restore the premises to its former condition and rent shall only be abated for that period of time during which Lessee shall be deprived of actual use of the premises as a result of the damage and repairs undertaken thereto. 21. Lessee shall name Lessor as co-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 Lessor thirty (30) days in advance of the effective date. Lessee shall retain insurance to cover tenant finishes provided by the lessee, such policy shall remain in effect for the duration of the lease. Should insurance proceeds from such coverage be insufficient to restore the tenant finishes to their completed condition, Lessee shall make up and satisfy such deficiency. Alterations to Premises 22. Lessee, upon Lessor's written consent, which shall not unreasonably be withheld, may, at its own expense, make reasonable and necessary alteration or improvements to the leased 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 Lessor ani:l remain and be surrendered with the premises upon termination of this lease. Lessee agrees that prior to any construction or installation of alterations, additions or improvements, Lessee 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 Lessor and shall notify Lessor of such posting and the exact location of same. Perfection of a mechanic's lien against the leased premises as a result of Lessee's acts or omissions may be treated by Lessor as a material breach of this lease. 23. Lessor 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 leased premises, other than those noted above as required by Lessee, as Lessor deems necessary or desirable and Lessee covenants to make no claim against Lessor for any interference with its interests as herein provided in the premises. Lessor shall provide reasonable notice to Lessee in advance of any intent to undertake alterations or repairs as authorized in this paragraph. Quiet Enjoyment 6 24. Lessor agrees that Lessee, upon timely payment of rent and observing and keeping those terms and conditions of this lease to be observed and kept by Lessee, shall lawfully and quietly hold, occupy and enjoy the leased premises during the term of the lease subject to, however, those conditions which may be reasonably anticipated in connection with the operation of a mixed use facility. Taxes 25. In the event any taxes are levied and assessed upon the leased premises or upon the improvements, fixtures or personal property of the Lessee located on the leased premises, or upon the leasehold or possessory interests as created through this lease, Lessee shall be solely responsible to satisfy and pay all such taxes or assessments to exist with respect to the leased premises, except that Lessee may permit such taxes or assessments to remain unpaid while pursuing any good faith contest or appeal of same. Condemnation 26. If during the term of this lease, or any renewal of it, the whole or part of the leased premises or such portion as will make the leased premises unusable for the purpose leased, or the leasehold interest, be condemned by public authority, including Lessor, for public use, then the lease term granted herein shall cease as of the date of the vesting of title in the premises in such condemning authority, or when possession is given to such authority, whichever event occurs first. Upon such occurrence, the rent as due hereunder shall be apportioned as of that date and any prepaid rent shall be returned to Lessee. Lessee shall not be entitled to any part of any condemnation award for the value of the un-expired term of this lease or for any other estate or interest in the leased premises, such amount belonging entirely to Lessor Default/Termination 27. If Lessee shall fail to timely comply with any of the terms or conditions of this lease or any notice given under it, or if it shall remove or manifest an intention of removing its furniture, business equipment, or fixtures from the leased premises while in arrears as to the payment of rent, 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 Lessor may at its option enter into the premises and remove all persons and take and retain possession thereof either with or without process of law. 28. Any breach, default or failure by Lessee to perform any of the duties or obligations assumed by Lessee, or to faithfully keep and perform any of the terms herein, shall be cause for termination of the lease by Lessor in the manner set forth in this paragraph. Lessor shall deliver to Lessee ten (10) days prior written notice of its intention to terminate this lease, including in the notice a reasonable description of the breach, default or failure. If within that ten (10) days Lessee shall fail or refuse to cure, adjust or correct it to the satisfaction of Lessor, then Lessor shall have the right to declare the lease terminated and all rights, powers and privileges of Lessee as provided through this lease shall cease and Lessee shall immediately vacate the premises and shall make no claim of any kind against Lessor by reason of the termination. 29. The ten (10) days' prior written notice shall be conclusively determined to have been delivered to Lessee upon 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 as indicated in the Notice provision herein, or such other address as otherwise designated in writing by Lessee. 30. Any failure by Lessor to so terminate this lease as herein provided or the acceptance by Lessor of rent for any period after the breach, default or failure by Lessee to adhere to the terms of the lease shall not be determined or construed to be a waiver or continuing waiver by Lessor of any rights to terminate the lease for any present or subsequent breach, default or failure. 31. Lessee agrees that it will, at the end of the term of the lease, peaceably deliver to Lessor the leased premises and all fixtures and improvements on it in a good state of repair, and vacant, unencumbered, and in good and tenantable condition. Compliance with Laws/No Discrimination 32. Lessee agrees to comply with all laws, ordinances, rules and regulations that may pertain or apply to the leased premises and its use. In performing under the lease, Lessee shall not discriminate against any worker, employee or job applicant, or any member of the public, because of race, color, creed, religion, ancestry, national origin, sex, age, marital status, physical handicap, affectional or sexual orientation, family responsibility or political affiliation, nor otherwise commit an unfair employment practice. Notices 33. Whenever this lease 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 Lessor: Aspen City Manager 130 South Galena Street Aspen, Colorado 81611 For Lessee: President and CEO Aspen Chamber Resort Association, Inc. 425 Rio Grande Place Aspen, Colorado 81611 If notice is provided by mail, three (3) additional days may be added to the notice time. The parties may change or add such designated person(s) or addresses as may be necessary from time to time in writing. Successors and Assigns 34. All of the terms and conditions as contained in this lease shall inure to the benefit of and be binding upon the successors and assigns of the parties. Headings 35. Headings contained herein are for convenience of reference only and are not intended to define, limit or describe the scope or intent of any provision of this lease. Governing Law 36. This lease shall be enforced and interpreted in accordance with the laws of the State of Colorado. Any action brought to enforce or interpret this lease shall be brought in the District Court in and for Pitkin County, Colorado. In the event of litigation between the parties concerning this lease or matters ar/sing therefrom, the prevailing party shall be awarded its costs and reasonable attorney's fees. Modifications 37. This instrument constitutes the entire agreement by the parties concerning the leased premises and 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. The lease and all of its terms and conditions may not be amended or modified absent a written agreement duly executed by Lessor and Lessee. Counterparts 38. This lease has been executed in three (3) counterparts, each of which shall be deemed an original. 9 WHEREFORE, the parties, through their duly authorized representatives, have executed this lease upon the dates as set forth herein. Date: ATTEST: CITY OF ASPEN, COLORADO Kathryn S. Ko~, ~ity ~lerk Date: ATTEST: ASPEN CHAMBER AND RESORT ASSOCIATION, 1NC. JPW-2/3/2004-G:\j ohn\word~agrXacra-lease-2004.doc 10 0