HomeMy WebLinkAboutresolution.council.047-05 RESOLUTION NO. ~ Series of 2005
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A LEASE AGREEMENT BETWEEN THE ASPEN CHAMBER RESORT
ASSOCIATION AND THE CITY OF ASPEN, COLORADO FOR A PORTION OF THE
CITY OF ASPEN PARKING PLAZA, 425 RIO GRANDE PLACE, AND AUTHORIZING
THE CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY
OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a lease agreement between the
Aspen Chamber Resort Association and the City of Aspen, a tree 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 Council of the City of Aspen hereby approves that lease agreement between
the Aspen Chamber Resort Association and the City of Aspen, a copy of which is annexed hereto
and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to
execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the
~-:]'--day~5.
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 hereinabove stated.
Katt~yn S/lCt6ch, I~ty Clerk
Lease Agreement
THIS AGREEMENT is made between the CITY OF ASPEN, COLORADO, a
political subdivision and body corporate ("Lessor"), and the ASPEN CHAMBER AND
RESORT ASSOCIATION, COLORADO, a Colorado non-profit corporation ("Lessee"),
and executed on the date(s) as indicated below.
Recitals
Lessor is the lessee of a parking garage facility known as the Aspen Municipal
Parking Plaza which includes within it certain floor area and space suitable for
offices and business purposes as more fully described below.
Lessee desires to sub-lease such floor area and space for the purpose of
conducting its business activities as a chamber of commerce and resort
association.
The parties hereto intend this agreement to supemede any and all previous
agreements relating to the lease of the demised premises.
Leased Premises and Term
Lessor hereby leases to Lessee that portion of the City of Aspen Parking
Plaza, 425 Rio Grande Place, Aspen, Colorado, consisting of
approximately 3,300 square feet of finished 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 "demised
premises".).
The term of this lease shall be five (5) years commencing December 1,
2005, and terminating November 30, 2010, provided the lease is not
sooner terminated by a breach of the terms or conditions set forth herein
by Lessee.
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 five (5) year term, to wit, on or
before June 1, 2010.
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 6 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, 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.
Rent and Utilities
Lessee shall pay Lessor at the offices of the City of Aspen Finance
Director, rent for the leased premises in the sum of $5,713.00 payable and
due on the fifteenth (15th) day of each month commencing December 15,
2005. The monthly rent shall be increased on each anniversary date
(December 1) 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".)
In addition to the rent payments as specified in Paragraph 5 above, Lessee
shall pay to Lessor the sum of $1,120.00 per month to defray the cost of
utility services provided to the leased premises. The monthly payment for
utility services shall be due and paid contemporaneously with Lessee's
monthly rent payments.
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.
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 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.
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 pement (1%) of
the past due amount(s) for each day beyond the date any payment is due.
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Use of the Premises
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 promises for a
tourist information/central reservation center.
Lessee shall not assign, transfer, 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. Lessor hereby consents to a sub-lease of a portion of the
demised premises between Lessee and StayAspenSnowmas upon the
terms and conditions set forth in that certain Sub-Lease Agreement
appended hereto as Exhibit "C".
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.
Services
Lessor, at the request, advice and approval of Lessee, and at Lessor's cost
and expense has caused improvements to be installed and completed in
and upon the leased premises, including, but not limited to, electrical lines,
plumbing, partitions, and heating and cooling systems, sufficient to meet
Lessee's needs and acknowledges that it has inspected and knows the
condition of the leased premises and that Lessee accepts same as suitable
for its purposes.
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
in Paragraph 13. 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 in Paragraph 6 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.
15.
Early Termination
Lessee understands that Lessor, through its Community Development
Department, is in the process of developing a Civic Center Master Plan for
an area of the City of Aspen which incorporates the parking garage facility
and the demised premises. Lessee further understands that the Civic
Center Master Plan may recommend redevelopment of the parking garage
facility and the demised premises which would require the removal of
Lessee from the demised premises to a new location in the immediate
vicinity of the demised premises. In the event that Lessor accepts a
recommendation from the City of Aspen Community Development
Department pursuant to the Civic Center Master Plan to move Lessee from
the demised premises to a new location, the parties hereto agree to
terminate this agreement upon twenty-four (24) months prior written
notice from Lessor to Lessee, and to negotiate in good faith the terms and
conditions of a new lease agreement for new space to be provided by
Lessor to Lessee in the vicinity of the demised premises. Additionally,
with six (6) months notice, the City may exercise an option to have Stay
Aspen Snowmass vacate that portion of the floor area leased by ACRA for
SAS use. Move out dates for SAS shall fall in April, May or September in
any given year and shall in no case be less than 180 days. This shall in no
way affect the lease term for the area leased to ACRA which is occupied
by ACRA. Should this occur, the base lease rate for ACRA shall be
reduced to $1999 and the cost to defray utility services shall be reduced to
$336.
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Maintenance of Premises
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.
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 laws, ordinances, or
governmental safety regulations applicable to the premises. In these
respects, Lessee shall permit Lessor, through its officers and agents, to
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make inspection of the premises at any time so as to determine compliance
with this agreement.
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
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 of its employees and agents and nothing herein shall be
construed as creating a partnership or joint enterprise between Lessor and
Lessee.
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.
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 seg., 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
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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.
During the full term of this lease, Lessee, at its sole cost and expense, shall
also cause all the leased premises and improvements on the leased
premises to be kept insured, without co-insurance clauses, to the full
insurable value against the perils of wind storm, hail, lightening,
explosion, fire and like perils. "Full insurance value" means the actual
replacement value less physical depreciation. The insurance shall be
procured from a company authorized to do business in the Sate of
Colorado and be satisfactory to the Lessor. All policies as required herein
shall contain a waiver of subrogation by the insurer against Lessor.
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 in Paragraph 24 below. 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.
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. In the
event the leased premises is destroyed by fire or other insured casualty,
Lessor shall, at a minimum, be entitled to so much of the insurance
proceeds representing its actual costs in finishing and improving the
premises as described in Paragraph 13 above and in restoring the premises
to its original unfinished and unimproved condition. Should insurance
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proceeds be insufficient to restore the premises to its original condition,
Lessee shall make up and satisfy such deficiency.
Alterations to Premises
Lessee, upon Lessor's written consent, 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
and 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.
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
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
parking garage facility.
Taxes
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
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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
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 t~se, 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, whichevbr 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
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.
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.
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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 to President, Aspen Chamber
Resort Association, 425 Rio Grande Place, Aspen, Colorado 81611, or
such other address as otherwise designated in writing by Lessee.
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.
Lessee agrees that it will, at the end of the term of the lease, peaceably
deliver to Lessor the leased promises 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
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
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
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425 Rio Grande Place
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.
Successors and Assigns
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
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
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 arising therefrom, the prevailing party shall be awarded its costs
and reasonable attorney's fees.
Modifications
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
This lease has been executed in three (3) counterparts, each of which shall
be deemed an original.
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WHEREFORE, the parties, through their duly authorized representatives, have
executed this lease upon the dates as set forth herein.
Date:
ATTEST:
Date:
ATTESt.'
CITY OF ASPEN, COLORADO
ASPEN CHAMBER AND RESORT
ASSOCIATION
By: /~ff/~ ~
Han~P'evny, President and CEO
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