HomeMy WebLinkAboutresolution.council.034-18 RESOLUTION # 34
(Series of 2018)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A LEASE AGREEMENT BETWEEN THE CITY
OF ASPEN AND ASPEN TREE FOR ITS FARM PARK EDUCATION AND
PERMACULTURE FACILITY AND AUTHORIZING THE CITY MANAGER
TO EXECUTE SAID AMENDMENT TO LEASE ON BEHALF OF THE CITY
OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a proposed Lease
Agreement between the City of Aspen and Aspen TREE, for its Farm Park
education and permaculture facility, 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 Council of the City of Aspen hereby approves the Lease
Agreement between the City of Aspen and Aspen TREE, a copy of which is
annexed hereto and incorporated herein, and does hereby authorize the City
Manager to execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the ity Council o the City of
Aspen on the 26`h day of February 2018.
Ste n Ska on, ayor
I, Linda Manning, duly appointed and acting City C rk do certify that the
foregoing is a true and accurate copy of that resolution ado ted by the City
Council of the City of Aspen, Colorado, at a meeting held, February 26, 2018.
Aindanning, City Clerk
LONG-TERM STEWARDSHIP LEASE AGREEMENT FOR
THE COZY POINT RANCH AGRICULTURAL CENTER
THIS LEASE AGREEMENT ("Lease"or"Agreement") entered into at Aspen,
Colorado, this D'e1dayof'r1ArvA-,r1 2018, by and between the CITY OF ASPEN,
COLORADO, a municipal corporatio and home-rule city("City"), and ASPEN TREE, a
Colorado nonprofit corporation ("Tenant").
WITNESSETH:
WHEREAS, the City is the owner of the Cozy Point Ranch in Pitkin County, Colorado,
which property is described on the map attached hereto as Exhibit A(the"Property"), and
desires to lease to Tenant that portion of said Property containing 14.23 acres described as Fields
3, 4, 5, and 8, on Exhibit A as "Cozy Point Ranch 2018 Designated Lease Areas", as well as
future structures built for the benefit of the agricultural center(collectively, the"Premises") on
the terms and conditions set forth herein; and
WHEREAS, Tenant has experience in agricultural center management and desires to
lease the Premises from City on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions
contained herein, the parties agree as follows:
1. Term. The term of this Lease is ten(10) years. This Lease shall be effective at noon,
Mountain time, on March 1, 2018, and shall terminate at noon, Mountain time, on March 1, 2028
(the "Term"). Tenant shall have the option to extend the Term of this lease for an additional five
(5) year period by providing written notice to the City exercising such option at least 30 days
prior to the expiration date and no more than 1 year prior to expiration of this agreement. In
addition, if the tenant has exercised this extension option, the tenant and the City may by mutual
written agreement further extend the Term of this agreement for an additional four(4) years and
eleven (11) months.
2. Time of Occupancy. Acceptance and Surrender of Premises. Tenant shall be entitled to
manage, use and occupy the premises as set forth in Paragraph 3, below. Occupancy of the
Premises by the Tenant shall be construed as recognition that the Premises are in their"as is"
condition, but shall not be construed as a waiver by Tenant of any of the City's agreements to
conduct certain repairs to the Premises.
3. Use. The Premises to which this Lease pertains are described as that portion of the City
of Aspen's Cozy Point Ranch containing approximately 14.23 acres as described on the attached
map(Exhibit A). Areas within the Property that which lay outside the designated Premises are
known as shared spaces. Tenant shall have the right to access and.use the shared spaces. Any use
of the shared space must be approved by other tenants and the City prior to use, such approval
not to be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, Tenant
and its agents, contractors, and invitees shall at all times during the Term have the right to cross
over and through the Property(including without limitation the shared spaces) for purposes of
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access to the Premises and vehicular, pedestrian, and animal ingress and egress to and from the
Premises.
Tenant may use the Premises solely for the purpose of managing and operating a farm;
agricultural center(including a kitchen and small retail store); educational, recreational, and
entertainment programming; farmer incubation programming; residential uses (subject to the
terms and conditions in this Lease); a tool library; and providing related services to third parties
(collectively, the"Permitted Uses"). Tenant shall not use the Premises for any other purposes
without City's written consent. Tenant'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, Tenant 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. Tenant shall not keep, use or sell anything prohibited by
any policy of fire insurance covering the Premises. In the event that any change in law takes
place that, in Tenant's reasonable discretion, would make it materially more difficult or more
expensive for the Tenant to use the Premises as provided for hereunder, then Tenant may, upon
not less than sixty(60)days prior written notice to City, terminate this Agreement; for purposes
of this Agreement, the term "change in law" shall include, without limitation: (a) any change to
the Pitkin County Land Use Code; (b) any change to the entitlements or permits for, or the
zoning underlying, the Property; (c) any laws, condemnation proceedings, resolutions,
ordinances and/or regulations of any kind or nature adopted or modified by the government of
Pitkin County or the City (or any of their respective agencies); or(d) any court ruling of any
kind by a court of competent jurisdiction, which would negatively impact the water rights
appurtenant to the Property, condemn all or any portion of the Property, or otherwise negatively
impact the Premises, or remove any portion of the Premises from potentially productive ranch,
agricultural or equestrian uses.
The Permitted Uses shall include the right to have special events at the Premises such as
weddings, birthday parties, conferences, seminars, and festivals, that may or may not be open to
the public or restricted to private audiences ("Special Events"), provided such Special Events are
conducted in accordance with this paragraph. The tenant must secure all necessary City of Aspen
permits for any Special Event to the extent required by Municipal Code Chapter 14.20. The
tenant must also secure the necessary permits for Special Events through Pitkin County, to the
extent required by the Pitkin County Code. Tenant shall also meet all ZGreen requirements for
all Special Events. Tenant may hold: (a) an unlimited number of Special Events that further
Tenant's educational and programmatic purposes; (b) two Special Events per week that are each
intended to be attended by 50 or fewer people and do not further Tenant's educational or
programmatic purposes (provided that Tenant may request approval from the Ranch Manager to
more than two in any week); and (c) one Special Event per month that is intended to be attended
by more than 50 people and does not further Tenant's educational or programmatic purposes
(provided that Tenant may request approval from the Ranch Manager to more than one in any
month). Tenant and the City shall evaluate the number and type of Special Events that Tenant
holds each year to determine whether, in their mutual agreement, adjustments are necessary to
the number and type of events allowed at the Premises. Tenant shall make commercially
reasonable efforts to schedule all Special Events that require closure of the Premises outside of
regular business hours. Tenant must inform the Ranch Manager prior to holding any Special
Event for which Tenant is not required to obtain a permit pursuant to the Municipal Code.
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4. Duty of Operation During the term of this Agreement the Tenant agrees to the following
terms and conditions:
a. Agricultural Center. Subject to approval of all entitlements, permits, and other approvals
required therefor and available funding, Tenant shall operate a public agricultural
production and education center. The Premises will be available for use by the general
public from 9:00 a.m. to 4:00 p.m. during the period June 1" through October 31" and
10:00 a.m. to 4:00 p.m. during the period November I"through May 3l", seven days per
week, 52 weeks.per year, subject to the below. Tenant's staff members, contractors,
agents, invitees, and farm incubation associates will be permitted twenty-four hours per
day/seven days per week access to the Premises including to the livestock for medical,
health, and dietary purposes. Tenant reserves the right to restrict access to the dedicated
Premises for: special events; periodic facility maintenance needs; holidays; planting, care
for, or harvesting of crops; safety of the public, livestock, or Tenant's agents or
employees; renovations and remodeling; casualty or condemnation; inventory; and other
special needs such as animal quarantines. Tenant shall inform the City as soon as
reasonably possible through the Ranch Manager of such closures if such closures will
continue for more than 48 consecutive hours, and will make commercially reasonable
attempts to limit these closures. Tenant will make commercially reasonable attempts to
continue educational programming through periods of facility maintenance,
improvements, and construction. The Premises shall be operated so as to accommodate
without discrimination the needs of the public of all ages, subject to equitable rules and
fees. The Tenant shall make commercially reasonable efforts to encourage the
development of agricultural awareness for the Aspen community as well as promote
various ranch knowledge, all on a nondiscriminatory basis.
In the event Tenant operates a farm incubation center, Tenant shall develop and utilize
commercially reasonable farmer incubation agreements, release agreements, sublease
agreements, incident reports and other grievance procedures documentation, and any
other documents, each as necessary and appropriate to protect the City and Tenant, and to
collect all rents, deposits, fees and other income derived from the operations of the farm
incubation center. Tenant shall provide a template of all such documents to the City for
approval before their use in in connection with the farm incubation center. The City's
review of such documents shall be conducted within seven (7) working days and
approval shall not be unreasonably withheld.
i. Agricultural Use. The Tenant shall use fields indicated as Fields 4 and 5 in Exhibit
A primarily for agricultural and related activities which support the agricultural
center. Field 3 shall be limited to the production of hay with appropriate amounts of
rotational grazing after the first cutting of hay though 2019. During this time period,
Equestrian Operations tenant of the Property must reasonably approve of any hay
seed mixes used in Field 3. Tenant shall use commercially reasonable management
practices for agricultural production relative to an integrated farm to maintain soil
health,production, and the longevity of agricultural activities. After this period, hay
restrictions will be removed from Field 3. The planting of noxious weeds is
prohibited(see Exhibit B for a list of noxious weeds). Tenant is responsible for
maintaining livestock fencing on the Premises, and preventing livestock from
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entering the wildlife habitat areas on the Premises that are depicted on Exhibit A.
ii. No grazing practices shall persist if the values for the land set forth by the Cozy Point
Ranch Management Plan, including but not limited to the aesthetic or historical
values, are violated, and Tenant's grazing practices shall not materially degrade the
health and productivity of the land in the Premises. In the event of such degradation,
as confirmed in writing by a third party, as described in section 8. C.,Annual
Performance Measures, the grazed animals shall be removed from the degraded areas
for an agreed upon time between the Tenant and the Ranch Manager.
iii. Residential Structures. The City understands that the Tenant desires to develop
residential opportunities on site for their staff. Tenant shall have the right to construct
such residential structure(s) on the Premises, provided that Tenant understands that
approvals for such residential structure(s)will follow the steps that are outlined in
section 4.d.iv., Capital I frasiructure Improvements. These units shall house only
ranch staff employees, their immediate family members, and short-term guests of
such residents (such as visiting friends and family), and shall not be offered to the
public for rental. Exceptions to this requirement must be approved by the Open Space
and Natural Resources Manager on a case by case basis. Tenants and their staff are
responsible for maintaining a 20-foot envelope around the residential structures
within which no agricultural activities may occur. See the maintenance and
management section of this contract for information on day to day maintenance and
capital improvements.
iv. Water Use. City will make reasonable efforts to provide for the water use needs of
Tenant and to prioritize available water to maintain both animal welfare and crop
health over other uses within the Property. Tenant will make commercially
reasonable plans not to exceed demand of the available water on the Property and the
water needs of all operations on the Premises. In the event of drought conditions,
Tenant's water use prioritization will first focus on animal welfare and secondarily,
on crops based on the value prioritization of these crops, in Tenant's reasonable
discretion.
b. Educational Opportunities. Tenant shall use commercially reasonable efforts to develop
interpretive and educational outreach programs for the Aspen community relating to the
agricultural experience, including opportunities for other entities to hold classes or create
experiences for adults and children to learn the history of ranching in the valley and/or
experience life on an operating ranch facility as it exists today. Guided hikes, summer
camps, self-guided tours, etc., may be included in such efforts. Tenant must coordinate
with all other tenants on the Property for use of shared spaces and/or otherwise leased
areas, subject to Section 3. Collaboration between leasing tenants of the Property is
greatly encouraged. A report of such activities will be sent annually to the City of Aspen
Parks and Open Space Director, as part of the Annual Report.
c. Recreational Opportunities. Increased public involvement on Cozy Point Ranch is
important to the City of Aspen. Tenant shall work with the City of Aspen Parks &
Recreation Department and the Special Events Department to identify additional
opportunities, such as sporting activities, competitions, fund-raising events, hiking, and
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biking, etc.,which may exist for developing recreational programming and events at the
Premises.
d. Manage and Maintenance. The City shall, at its sole expense not to be passed through to
Tenant, maintain the Property(except the Premises), including all shared spaces, in good
and working condition and in compliance with all applicable laws. Tenant shall, at its
sole expense, manage and maintain the Premises and any buildings, improvements, and
equipment on the Premises, in good and working condition. Capital Improvements shall
be planned in cooperation with the City, in accordance with Section 4(d)(iv). Definitions
and explanations of repairs and maintenance verses improvements are below:
i. Repair and Maintenance. Tenant shall, at its expense, be required to do all general
maintenance of the Premises, including, but not limited to: trash and recycling
removal, grass cutting, snow removal, routine maintenance of the barns, greenhouses,
houses, and fencing, refuse disposal, purchase of needed supplies, cleaning of ditches
(not including any irrigation ditches, which shall be the responsibility of the City or
ditch company), painting, cleanup of storage areas, including snow storage areas,
livestock watering and electrical utility maintenance, and any other reasonable
maintenance to keep the Premises in good and working condition while maintaining a
functional and safe working environment and for the normal day-to-day operations of
a farm, including by way of example field disking and seeding, fence repair and cross
fencing, irrigation operations and repair(not including any irrigation ditches, which
shall be the responsibility of the City or ditch company), manure management,
haying, minor building repairs and general land management. The parties hereto
agree that Tenant's duties set forth in this subsection, and elsewhere in this
Agreement, shall not require Tenant to repair or maintain any portion of the.Premises,
other than the designated pasture, fields or fencing, in a condition better than that
which existed on the date of this Agreement or on the date an improvement is placed
into service, subject to normal wear and tear. Tenant shall make commercially
reasonable efforts to optimize(in Tenant's sole discretion) the overall conditions of
the pastures, fields, and fencing and to reasonably cooperate with City to ensure that
the agricultural irrigation systems do not materially deteriorate from-their current
condition.
Tenant also, at its sole expense (subject to Section 4(d)(iv), shall keep the Premises,
including roadway, outdoor walks and access ways, in good and safe condition and
do all work and repair necessary to maintain the same and to keep it from
deteriorating into an unsafe condition; provided, however, that the parties hereto
agree that Tenant's duties set forth in this sentence shall not require Tenant to.repair
or maintain any portion of the Premises in a condition better than that which existed
on the date of this Agreement, or on the date that an improvement is placed into
service (subject to ordinary wear and tear), and shall be subject to approval of Capital
Improvements and City-funding therefor in accordance with Section 4(d)(iv).
All areas.used to board livestock shall be maintained in a safe, sanitary, and clean
condition to properly ensure the health and safety of all animals boarded on the
premises. The standards of health, safety, and welfare for the animals shall be those
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that are best management practices by nonprofit organizations in the business of
animal husbandry and the operation of an agricultural center.
ii. Repairs and Alterations by 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. City shall provide reasonable
written notice to Tenant in advance of any intent to undertake alterations, renovations
or repairs as authorized in this paragraph and all work shall be performed in a good
and workmanlike manner and in compliance with all applicable laws and codes,
diligently pursued to completion, and performed at such times as mutually agreed to
in writing between the parties so as to eliminate or minimize any disruption of
Tenant's business and without damaging or injuring property or persons. The City
shall promptly repair all such damage caused by its work. Tenant shall have the right
to approve in writing, in Tenant's sole and absolute discretion, all alterations,
renovations or repairs to any alterations, additions, or improvements on the Premises
that were paid for, constructed, or installed by Tenant, or that are used by Tenant for
the Permitted Uses, prior to commencement of such work.
iii. Capital btfiastnicture bnprorentents.
(A) Tenant, upon City's written consent (not to be unreasonably withheld) and
subject to the below, may, at its own expense, make alterations, additions, or
improvements to the Premises ("Capital Improvements"). Capital Improvements are
anticipated to enhance the value of the property, or substantially prolong its useful
life. The City understands the Tenant desires to construct and install certain Capital
Improvements as outlined in their Master Plan as presented in the RFP selection
process(attached hereto as Exhibit C, the"RFP"). All Capital Improvements shall
be accomplished through existing City and County Land Use approval processes.
This approval process will also require approval by City staff,the City of Aspen
Open Space and Trails Board and may require approval from City Council. Staff will
make every attempt possible to insure Capital Improvement requests made by the
Tenant will be reviewed by the Open Space and Trails Board within 90 days of first
notification to the City of Aspen Open Space and Natural Resource Manager. Any
Capital Improvement that are requesting City of Aspen funding, outside of existing
grant funding opportunities, will also be required to go through the City's Asset
Management Plan process. Tenant shall be responsible to maintain a Capital
Improvements list which will be reviewed and prioritized annually with City of
Aspen staff in accordance with Section 8(a)(i) below.
(B) All Capital Improvements shall be performed in a workmanlike manner, in
accordance with all applicable building and safety codes. All Capital Improvements
including any funded solely by Tenant, of a permanent and fixed nature shall become
the property of the City upon termination of this Agreement; provided, however, that
any portable, modular, and/or temporary structures paid for by Tenant shall remain
the property of Tenant; provided, however, that portable, modular,and/or temporary
structures arc identified in writing as such before they are constructed or placed into
service. Tenant agrees that prior to any construction or installation of Capital
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Improvements, Tenant 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 38-22405 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 Tenant's acts or
omissions may be treated as a material breach of this Agreement; provided, however,
that if Tenant desires to contest any claim of lien, Tenant may do so (and Tenant shall
not be considered in breach of this Agreement) if Tenant timely posts adequate
security and obtains an order discharging the lien of record, as then provided by the
Colorado mechanics' lien statute.
iv. Expansion of Premises. The City and Tenant understand that some of the Capital
Improvements that Tenant intends to construct or install pursuant to the RFP are
intended to be located on portions of the Property outside of the Premises. In the
event Tenant desires to construct or install any Capital Improvements outside of the
Premises but within the Property, and the City approves of such Capital
Improvements in accordance with Section 4(d)(iv), then Tenant and the City shall
amend this Agreement in writing to expand the Premises to include the portions of the
Property upon which the Capital Improvements will be constructed or installed.
e. Storage of Vehicles.and Miscellaneous Items. Tenant shall allow only those vehicles and
other miscellaneous items that are directly associated with the Permitted Uses to be
stored on the Premises. The facility shall not be operated as a storage facility for any
vehicles or other miscellaneous items that are not directly related to the Permitted Uses
unless otherwise reasonably permitted by the City Open Space Director. Storage of
miscellaneous items shall be within the agricultural center designated area, condensed to
smallest area reasonably practical, and as out of view of HWY-82 and the Brush Creek
Community as possible, unless otherwise directed or reasonably consented to by the City.
Storage of all miscellaneous items and vehicles shall not occur in areas of native
vegetation, or within the designated riparian area, each as depicted on Exhibit A. Tenant
shall work with the City to designate an appropriate location for materials and vehicle
storage outside of the Premises during the master planning process.
5. Payment. Tenant agrees to pay an annual rent of$50 per acre of the Premises. Payment
shall be paid in full by March I"of each year.
6. Entry Permission. City shall be entitled to enter upon the Premises at all reasonable
hours for the purpose of inspecting the same or enforcing any of City's rights hereunder;
provided, however, that the City shall not interfere with Tenant's business operations, shall
provide at least 24 hours' prior notice to Tenant of all such entries (except in the case of an
emergency that presents an imminent threat of damage to property or injury to persons, in which
case the City shall provide notice to Tenant as soon as reasonably practical), and the City shall
promptly repair all damage caused by the City.
7. Extent of Rights of Property. Tenant shall be responsible to ensure safe and open public
access to the facilities of the Premises in accordance with this Lease. Tenant shall have the right
to designate nondiscriminatory policies and procedures for controlling access to and use of the
Premises.
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8. Conservation Values and Stewardship Guidelines. Subject to the City's obligations in
Section 4(d), Tenant shall maintain the Premises in general conformance with the Aspen Valley
Land Trust Deed of Conservation Easement in Gross as described in the attached Exhibit D and
the guidelines set forth by the 2017 Cozy Point Ranch Management Plan described in the
attached Exhibit E.
a. Master Plan Participation. Tenant shall participate in the planning, development and
maintenance of a master plan involving the entire Property to ensure the health and
vitality of the land within the Property and the vitality of the organizational goals set
forth by the tenants of the Property and the City; provided, however, Tenant shall not be
required to agree to the adoption of or consent to any master plan that would restrict any
of Tenant's rights granted pursuant to this Agreement or impose any additional
obligations on Tenant.
b. Environmental Protection. Tenant shall use commercially reasonable efforts to comply
with all environmental protection recommendations and guidelines as set forth by the
Cozy Point Ranch Management Plan, subject to available funding and applicable
resources. Tenant shall use commercially reasonable efforts to implement the City's
ZGreen standards, subject to available funding and applicable resources Tenant will
make commercially reasonable efforts to minimize water and energy consumption, waste
generation, and air pollution emissions, subject to available funding and applicable
resources. Additional requirements are the following:
i. Energy Use and Greenhouse Gas Reduction Requirements. Cozy Point Ranch is a
City of Aspen facility and as such the day-to-day operations and Capital
Improvements must comply with applicable laws, rules, and regulations that apply to
the City with regard to the reduction of Green House Gases (GHG). It is the Tenant's
responsibility to identify, upgrade, install, operate and manage the Premises in
compliance with such applicable laws, rules, and regulations.
ii. Wildlife and Wildlife Habitat Protection. It is Tenant's responsibility to manage
solid waste according to City of Aspen ordinances. All solid waste that falls
under the guidelines of the Aspen Municipal Code, Wildlife Protection
Ordinance, Chapter 12.08 is required to be managed according to the guidelines
of the ordinance. Tenant may choose a method of wildlife resistance for the
Premises and its Permitted Uses.
Tenant's wildlife-resistant refuse containers and wildlife-resistant dumpster
enclosures shall comply with all applicable laws, rules, and regulations of the City
and Pitkin County. As of the date of this Agreement City requirements include:
(A) Wildlife-resistant refuse container are a fully enclosed container that can be
constructed of pliable materials, but must be reinforced to deter access by
wildlife. The container must employ a sturdy lid that has a latching mechanism
preventing access to its contents by wildlife. Wildlife Resistant Containers must
meet the standards of testing by the Living with Wildlife Foundation and
approved by the Interagency Grizzly Bear Committee(IGBC) as bear resistant for
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90 minutes or otherwise be approved by a City-designated official. (Ord. No.
27-2005, §1; Ord. No. 8-2008); and
(B) Wildlife-resistant dumpster enclosure means an enclosed structure consisting
of four(4) sides and a secure door or cover, which shall have a latching device of
sufficient design and strength to prevent access by wildlife. The enclosure shall
not be larger than necessary to enclose the trash receptacles, shall not be attached
to an historic structure, shall not be located in a public right-of-way and shall be
located adjacent to the alley where an alley borders the property. An enclosure of
less than one hundred twenty(120) square feet shall not require a building permit
or Community Development review; however, plans for the dumpster are required
to be reviewed and approved by a City Community Safety Officer or an
Environmental Ranger prior to the commencement of construction. An enclosure
of one hundred twenty(120) square feet or larger requires a building permit.
Tenant is responsible for maintaining the integrity of wildlife fencing on the
Premises unless otherwise specified by or consented to by the City of Aspen Open
Space and Natural Resource Manager. Use of the wild habitat areas designated on
Exhibit A for events and or other uses not congruent with outdoor recreation
must be approved by the City of Aspen Open Space and Natural Resource
Manager. Dumping or storing equipment in areas of designated wildlife habitat
depicted on Exhibit A is prohibited unless otherwise directed by or consented to
by the City of Aspen Open Space and Natural Resource Manager.
iii. Riparian Area and Waterways Protection. Tenant is responsible to maintain the
fencing around and the access points to the portion of the designated riparian area
indicated on Exhibit A as "Riparian Buffer" that is within the Premises. The access
point for livestock on the Premises shall be protected and maintained by Tenant. Any
degradation to such Riparian Buffer directly related to the Tenant's actions will be the
responsibility of the Tenant to restore.
Waste and Nutrient Management Requirements. It is Tenant's responsibility to
manage solid waste per City of Aspen ordinances. The Tenant must provide
recycling for its own operations and for the operations of any sublessees in
compliance with City of Aspen ordinances.
The use of compost systems is recommended when possible. Onsite compost must
take measures to protect water ways from runoff.
All Recyclable Materials and Yard Waste accumulated on the Premises shall be
placed in a container separate from garbage, or in a suitable manner such as
cardboard broken down and placed on a shelf.
"Recyclable Materials" means any materials that are designated by the City
Manager in the "Recyclable Materials List" which may include, but are not
limited to, newspaper, office paper, cardboard, glass containers, plastic
containers, steel cans and aluminum cans.
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"Yard Waste"shall mean materials generated from the maintenance of the
vegetation on a property that have been designated by the City Manager in the
"Banned Yard Waste List" which may include,.but are not limited to,grass
clippings, leaves, weeds, holiday trees and other plant materials.
9. Monitoring and Reporting. To facilitate monitoring of all activities of the Premises the
Tenant shall submit annual report to the City of Aspen Director of Parks and Open Space for
distribution to City officials and staff, including the Open Space Board ("Annual Report"). The
Annual Report shall summarize activities, programs, and outcomes of operations on the Premises
during the prior calendar year. Proposed changes to the Permitted Uses and Capital Improvement
needs for the following year or years shall also be included. The elements of this Annual Report
are detailed below:
a. Status Reports. The status reports include a narrative detailing the status of Tenant's
Permitted Uses as well as a Capital Improvements proposal or update describing specific
plans in each area moving forward. The annual status report shall contain the following
components:
i. Capital Improvement Schedule. Tenant shall include in the Annual Report a schedule
of desired Capital Improvements for the forthcoming calendar year. Tenant and the
Open Space and Natural Resources Manager shall review the schedule promptly after
submission of the Annual Report and mutually agree upon a prioritization of the
schedule of Capital Improvements. Tenant shall not be obligated to construct or
install any such Capital Improvements or to construct or install such Capital
Improvements in the order on the prioritized schedule, and Tenant shall have the right
to request the City's approval of proposed Capital Improvements not listed on the
prioritized schedule pursuant to Section 4(d)(iv); rather, the City may reasonably
consider whether a proposed Capital Improvement is listed on the prioritized schedule
and the prioritization of any Capital Improvement that Tenant requests to construct or
install when determining whether to grant its approval for the same pursuant to
Section 4(d)(iv). Tenant shall have the right from time to time to request that the
prioritized schedule of Capital Improvements be modified to change the ordering of,
add or subtract, or otherwise modify the Capital Improvements listed therein, and the
Open Space and Natural Resources Manager shall reasonably approve such
modifications.
ii. Agricultural Activities. The agriculture report will include information related to all
agricultural activities including but not limited to a summary of production strategies
and yearly yields. Included in this information is details of annual soil reports, water
quality reports, and animal husbandry reviews by third party auditor, as well as
information about state requirement compliance, all to the extent available to Tenant.
This report will also specify improvements made to the quality of the agricultural
lands. Proposed Capital Improvements will be listed in the Annual Report.
iii. Educational and Recreational Activities. This report will summarize educational and
recreational activities offered on the Premises in the previous year. This infonnation
includes but is not limited to participation demographics and numbers (to the extent
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available to Tenant), types of programs offered,and improvements made since the
previous year. Tenant must keep record of the number of participation in educational
programs and food distribution. This report will also specify proposed improvements
needed for success in the following years.
b. Complaints and Incident Reports. The Annual Report shall include a summary of any
incidents at the Premises resulting in serious personal injury or substantial damage to
property and all issues requiring City action or decisions, for which the City has not
previously been provided notice. Further, City shall promptly notify Tenant of any
complaints received by City regarding the operation of the Premises. Tenant shall not
discourage the reporting of complaints or issues directly to the City of Aspen which may
arise from any source.
10. Annual Performance Measures. Tenant shall use commercially reasonable efforts to meet
or exceed the following annual performance measures as outlined below. Tenant's failure to
meet the below performance measures shall constitute a default under this Agreement:
i. Customer Survey. Through an annual survey of Tenant's clients, to be conducted
at the City's sole expense, the City shall acquire customer service data to assess
the level of satisfaction with Tenant's staff, operations, and products. The survey
shall include questions regarding the overall general condition of facilities and
services provided at the Premises. The City and Tenant shall agree on a survey
instrument, methodology, and the information to be collected for this purpose
prior to performance of the survey. The survey shall solicit responses that can be
graded on a scale of 0 to 10. A successful "level of satisfaction" shall include a
total average score of seven (7)or better; provided that failure to achieve a score
of seven (7) or better shall not constitute a default under this Agreement.
ii. Veterinarian Review. Tenant will annually engage a qualified and licensed
veterinarian to provide a professional inspection and assessment of the livestock
and their facilities within the Premises. The City and the Tenant shall mutually
agree on the selection of the veterinarian and the methodologies and timing of the
inspections and assessment of the Premises. The specialist will certify that
Tenant's operations are meeting the standard of professionalism and safety as it
relates to the overall livestock operations for Tenant's Permitted Uses. The
specialist will inspect and report on deficiencies regarding the health, safety and
welfare of the animals and boarding areas considering Tenant's Permitted Uses.
Tenant and the City shall review any deficiencies alleged in the report, and come
to mutual written agreement regarding which deficiencies shall be cured or
mitigated and the means for effecting such cure or mitigation. The City reserves
the right to require Tenant to cure any deficiencies that present an immediate
threat to the health, safety and welfare of any livestock on the Premises. For any
and all deficiencies that require a significant capital investment to cure or
mitigate, Tenant shall have the right to prepare a summary of Capital
Improvements, costs, and completion schedule to present to the City, including a
request for funding, to cure or mitigate the deficiencies. If approved, funding for
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such projects will be effected through the City of Aspen Asset Management Plan
Process at the discretion of City Council.
iii. Land Use Review. Subject to the City's and County's approval of the required
entitlements, permits, and related approvals, Tenant shall have a minimum of
3,600 square feet of extended season growing areas in food production by 2020
and Tenant will have 5 acres in rotational grazing focusing on soil regeneration
and pasture health improvements by 2020. The soil health of this area will be
tested and monitored by Tenant to verify these improvements.
iv. Educational Programming. Tenant shall have a minimum of 5,000 (estimated
users today) annual visitors to the Premises and shall offer educational
programming to a minimum of 5 local schools each year. Tenant will
collaborate with the City to host at least one community wide event, to be
mutually agreed upon, each year at the Premises, the costs of which shall be
shared by the City and Tenant.
V. Third-Party Specialist. The City shall annually engage a qualified agricultural
specialist at the City's sole expense to provide a professional inspection and
assessment of the agricultural facilities at the Premises. The City and the Tenant
shall mutually agree on the selection of the agricultural specialist and the
methodologies and timing of the inspections and assessment of the Premises. The
specialist will certify that the operations are meeting the standard of
professionalism and safety as it relates to the overall agricultural operations
considering Tenant's Permitted Uses. The specialist will inspect and report on the
soil, crops, and any other items that may be deficient regarding the agricultural
operations of the Premises, considering Tenant's Permitted Uses. Tenant and the
City shall review any deficiencies alleged in the report, and come to mutual
written agreement regarding which deficiencies shall be cured or mitigated and
the means for effecting such cure or mitigation. For any and all deficiencies that
require a significant capital investment to cure or mitigate, Tenant shall have the
right to prepare a summary of Capital Improvements, costs, and completion
schedule to present to the City to cure or mitigate the deficiencies, and if the City
approves funding for such projects, Tenant shall act as project manager to
complete such projects. If approved, funding for such project will be effected
through the City of Aspen Asset Management Plan Process at the discretion of
City Council.
vi. AVLT Annual Inventory. The Aspen Valley Land Trust (AVLT), in cooperation
with Tenant and at no cost to Tenant, shall craft an annual inventory and action
plan that contains recommendations for sustainable agricultural practices and
environmental stewardship actions at the Premises, which the Tenant is
responsible for reviewing. AVLT shall certify that the environmental standards
are being met and that Tenant is meeting the standards of good environmental
stewardship on the Premises, considering Tenant's Permitted Uses. Tenant and
the City shall review any deficiencies alleged in the report, and come to mutual
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written agreement regarding which deficiencies shall be cured or mitigated and
the means for effecting such cure or mitigation. For any and all deficiencies that
require a significant capital investment to cure or mitigate, Tenant shall have the
right to prepare a summary of Capital Improvements, costs, and completion
schedule to present to the City, including a request for funding, to cure or mitigate
the deficiencies. If approved, which approval shall be at the discretion of the City,
funding for such project will be effected through the City of Aspen Asset
Management Plan Process at the discretion of City Council.
Notwithstanding anything to the contrary in this Agreement, if Tenant fails to meet any
of the goals or objective set forth above or deviates from the Cozy Point Ranch
Management Plan, the City shall send Tenant written notice of the same describing such
failure in reasonable detail, and if Tenant fails to satisfy such goal or objective within one
(1) year after receipt of such notice(provided, however, that if the nature of such failure
is such that it cannot reasonably be cured within such 1-year period, then Tenant shall
have such additional time as is reasonably required to cure such failure, provided Tenant
commences to cure such failure within such ]-year period and diligently pursues such
cure), then the City, at its sole discretion, may terminate this lease with ninety(90)days'
prior written notice. The City shall use objective standards,when available or possible,
to determine Tenant's compliance; however, the City shall be the sole judge of Tenant's
compliance with the performance standards set forth above, in the City's reasonable
discretion.
11. Emergency Plans and Safety Procedures. In compliance with instructions from the
Aspen Fire Protection District,Tenant shall create, submit to the Aspen Fire Protection District
and implement specific emergency plans to address the possibility of a fire or other emergency
and shall post emergency evacuation plans and educate all employees and inform boarders of
these procedures, all to the extent required by and in compliance with applicable laws. Fire
extinguishers and smoke detectors will be installed and kept in working order in compliance with
Aspen Fire Protection District regulations, including in the residences on the Premises. In
addition, an annual safety inspection and audit will be conducted by the Colorado
Intergovernmental Risk Sharing Agency (CIRSA), at no cost to Tenant. The City may contribute
to these improvements, based upon their cost and size. Tenant and the City shall review any
deficiencies alleged in the report, and come to mutual written agreement regarding which
deficiencies shall be cured or mitigated and the means for effecting such cure or mitigation
12. Ste. The City of Aspen and Tenant shall work together to implement a specific
signage plan at the facility that clearly and specifically identifies that the Premises is owned by
the City of Aspen. This signage plan shall be designed to provide information to the public
about general directions, hours of operations, emergency contact information, recreational
opportunities, and other specific information about the facility and property as is deemed
appropriate.
Tenant 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 by the parties that placement of
an identification sign or signs is important and necessary to Tenant's business, and permission
shall not be unreasonably withheld for the posting of a sign for Tenant's business provided that
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such sign complies with all applicable laws and regulations. Any sign permitted by City shall at
all times comply with applicable ordinances, rules and regulations.
13. Permits. Tenant shall secure such permits as may be required by the City of Aspen and
Pitkin County, if any, for uses of and activities on the Premises and notify the City Manager and
other organizations or governmental agencies, to the extent required by law, in advance of all
Special Events on the Premises.
14. Insurance.
(a) Tenant's Insurance. Tenant 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 reasonably satisfactory to City. Tenant 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 of such non-renewal, cancellation or
material change. 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 for personal injury under
the laws of the State of Colorado found at C.R.S. 24-10-101 et seg., as amended. At present,
such amounts shall be as follows:
$350,000.00 for any injury to one person in any single occurrence;
$990,000.00 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(1), as amended. City shall notify Tenant of any changes in the above
referenced amounts.
Notwithstanding the foregoing, however, in the event that Tenant is unable to obtain
and/or maintain insurance at a reasonable cost, then Tenant may, in its sole discretion, terminate
this Lease by providing City with not less than sixty (60) days prior written notice 'of
termination. For purposes of this subsection, unreasonable cost shall mean either a 100% annual
increase in the cost of premiums or a total cost of insurance premiums in excess of$10,000.00 in
any single calendar year.
(b) Landlord's Insurance. The City shall during the entire Term at the City's sole cost
and expense, and at no cost to Tenant, carry and maintain the following insurance: Commercial
General Liability Insurance on an occurrence basis with a minimum limit of liability in the
amount of$3,000,000.00 and broad form property insurance, insuring the Property other than the
Premises, and all property within the Property and Premises owned by the City during the Term,
in an amount equal to 100% of the full replacement cost thereof and so as to prevent the
application of co-insurance provisions. The City agrees to furnish Tenant with certificate(s) of
insurance as proof that it has secured and paid for such insurance upon written request for the
same. The insurance shall be procured from a company authorized to do business in the State of
Colorado rated at least A-and VIII in A.M. Best's Insurance Reports.
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(c) Subrogation. Tenant hereby waives any and all rights of recovery against the City
and against the officers, members, managers, employees, agents or representatives of the City for
loss of or damage to property, if such loss or damage is covered by any insurance policy in force
(or required to be in force) at the time of such loss or damage. The City hereby waives any and
all rights of recovery against Tenant, and against the officers, employees, agents or
representatives of Tenant, for loss of or damage to property, if such loss or damage is covered by
any insurance policy in force (or required to be in force) at the time of such loss or damage. The
City and Tenant, from time to time, shall cause their respective insurers to issue appropriate.
endorsements to all policies of insurance carried in connection with the Property or the Premises
or the contents of the Premises, which endorsements waive such insurer's subrogation rights
under such policies against the beneficiaries of this waiver.
15. Duties of the City Relative to the Agricultural Center. During the term of this Agreement
the City agrees to the following:
a. City shall grant to Tenant the right of quiet enjoyment of the Premises, and to permit
Tenant to use the designated lease area for Tenant's sole use and occupancy, and to
manage the Premises, and conduct Tenant's Permitted Uses on the Premises, in a
commercially reasonable manner as may be determined by Tenant in Tenant's sole
discretion for so long as Tenant shall abide by the terms of this Agreement.
b. In the event that City decides to sell the Premises or any portion thereof during the term
of this Agreement, then the City shall deliver the executed letter of intent or contract to
purchase the Premises or portion thereof and Tenant shall have a right of first refusal to
purchase the Premises or such portion on the same terms and conditions set forth therein.
Tenant's shall have thirty (30) days from the date that City presents to Tenant such letter
of intent or contract to purchase to provide the City with a written notice stating that
Tenant desires to purchase the Premises or portion thereof on the same terms as set forth
in the letter of intent or contract to purchase. If Tenant provides such written notice to the
City, the City shall sell the Premises or portion thereof to Tenant on such terms and
conditions. Tenant's failure to send such a notice within the thirty(30) day time period
shall constitute a waiver of Tenant's right with respect to the portion of the Premises
being sold; provided, however, (a) if the letter of intent or contract to purchase terminates
or the City desires to sell the Premises or portion thereof to a new buyer; (b) if the City
desires to sell the Premises or portion thereof to the same buyer(or an affiliate)as set
forth in the letter of intent or contract to purchase on different terms than those described
in the original letter of intent or contract to purchase as it was presented to Tenant; or(c)
if the sale of the Premises or portion thereof does not close within 180 days after the date
the letter of intent or contract to purchase was first delivered to Tenant, then the City
shall provide written notice to Tenant of(a), (b), or(c), and Tenant shall again have the
right to exercise its right of first refusal with respect to the Premises or portion thereof
within thirty(30) days after receipt of such notice.
16. Utilities and Security System. Tenant shall, at its own expense, pay for all water(subject
to Section 4(a)(iv), heat and electric utilities, intemet and telephone service for the buildings,
operations, and facilities within the Premises; provided, however, all expenses for running the
irrigation from the Cozy Point South Ditch and Rex and Smith Ditch and for otherwise bringing
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water and utilities to the Premises shall be the responsibility of the City, not to be passed on to
Tenant.
17. Personal Property. All personal property and trade fixtures placed on the Premises shall
be at Tenant's sole risk and City shall not be liable for damage to or loss of such personal
property or trade fixtures arising from the acts or neglect of Tenant, its agents or employees.
Any personal property or trade fixtures of Tenant or anyone claiming under Tenant, 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, unless Tenant and the City are then negotiating an
extension or replacement of this Agreement or a sale of the Premises to Tenant.
18. Taxes. In the event any taxes are levied and assessed upon Tenant's leasehold interest in
the Premises or upon the improvements, fixtures or personal property of the Tenant during the
term of Tenant's occupancy of the Premises or arising therefrom, or upon the leasehold or
possessory interests as created through this lease, Tenant shall be solely responsible to satisfy
and pay all such taxes in a timely fashion. Tenant shall not allow any liens for taxes or
assessments to exist with respect to the Premises, except that Tenant may permit such taxes or
assessment to remain unpaid while pursuing any good faith contest or appeal of same. The City
shall timely provide notice to Tenant of any taxes, fees, assessments, or similar items that Tenant
shall be responsible for paying to the extent such notices are received by the City.
19. Indemnification. Tenant 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 (collectively, a
"Claim"), which arise out of or are in any manner connected with this Agreement, if such Claim
occurs within the Premises and is caused by the omission, error, or negligence of the Tenant or
any subcontractor of the Tenant, or by any workmen's compensation claim of any employee of
the Tenant or of any employee of any subcontractor of the Tenant; provided, however, the
foregoing obligations shall not apply to any Claim resulting from the City's negligence or willful
misconduct.
20. Termination Due to Fire or Similar Catastrophe. If, absent negligence or fault on the part
of Tenant, the Premises or any portion thereof shall be damaged by fire or other catastrophe, and
if such damage is either(a) so great that a competent licensed architect in good standing in Pitkin
County, Colorado, as selected by both the City and Tenant, within fourteen (14)days from the
date of loss, shall certify in writing to the City and Tenant that such damaged portions of the
Premises,with reasonable diligence, cannot be made fit for occupancy within ninety(90)days
from the happening of the occurrence of the damage, or(b) such damage is not fully insured by
Tenant's insurance, then Tenant may elect in writing (no later than thirty(30)days from
Tenant's receipt of the architect's certificate or determination by Tenant's insurance company, as
applicable) to either continue this Agreement or terminate this Agreement. If Tenant elects to
continue this Agreement, then Tenant and City shall meet and attempt to negotiate in good faith
a reduction in rent so as to compensate Tenant for the damage caused to the Premises; in the
event that such negotiations fail, then Tenant may terminate this Agreement by providing to City
a written termination notice. In the event that Tenant terminates this Agreement, then Tenant
shall be released from Tenant's obligations set forth in this Lease, including without limitation to
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return the Premises to City in the same condition (ordinary wear and tear excepted) as existed on
the date hereof for those portions of the Premises damaged. If, however, the damage is not
described in (a) or(b) above, then repairs thereto shall be undertaken by Tenant(to be offset
against rents otherwise due to City) with all reasonable speed to restore the Premises to its
former condition (subject to applicable laws) and the Agreement shall remain in effect. Tenant's
duties and obligations to provide services 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.
21. Condemnation. If during the Term of this Agreement, or any renewal of it,part of the
Premises or Property, or Tenant's leasehold interest, shall be condemned by public authority or
sold in lieu of such condemnation ("Condemnation"), then this Lease shall cease with regard to
the portion of the Premises that is the subject of the Condemnation 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. The City shall provide written notice to Tenant within ten
(10)days after becoming aware of any intended Condemnation affecting the Property, Premises,
or Tenant's leasehold interest ("Condemnation Notice"). If the Condemnation is for the entire
Property, Premises, or Tenant's leasehold interest, or if, in Tenant's sole discretion, (a) such
Condemnation renders the remainder of the Premises unusable for Tenant's Permitted Uses, or
(b) a portion of the Property outside of the Premises is the subject of a Condemnation that would
adversely impact access to or the usability of the Premises for the Permitted Uses, Tenant shall
have the right to terminate this Lease by written notice to Tenant within 60 days after receipt of
the Condemnation Notice. Tenant shall be entitled to that part of any condemnation award for the
value of the unexpired Term or for any other estate or interest in the Premises.
22. Assignment of Agreement. Tenant shall not assign, pledge, sublease or otherwise
dispose of or encumber this Agreement, or the Premises, without the prior written consent of the
City. Notwithstanding the foregoing, however, Tenant may sublease portions of the Premises to
third parties, from time to time; no such sublet shall relieve Tenant of its obligations hereunder.
Tenant shall notify City of all subleases for portions of the Premises.
23. Breach of Contract:
a. Breach by Tenant: If Tenant shall fail to timely comply with any of the terms or
conditions of this Agreement, including, but not limited to, maintaining the Premises in
accordance with this Agreement, 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) consecutive hours, then at any lime
afterwards City may treat such act or omission as a breach of this Agreement. In the
event of any such breach, City shall send to Tenant a written notice stating the grounds of
such breach. Tenant shall then have thirty (30) days within which to cure such breach;
provided, however, that if the nature of such failure is.such that it cannot reasonably be
cured within such 30 day period, then Tenant shall have such additional time as is
reasonably required to cure such failure, provided Tenant commences to cure such failure
within such 30 day period and diligently pursues such cure. Failure to so cure any such
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breach shall constitute an "Event of Default" hereunder. This agreement recognizes the
"doctrine of emblements"that gives tenant rights to an"away-going annual crop" that
matures after the termination date.
b. Breach by City: If City shall fail to timely comply with any of the terms or conditions of
this Agreement, or in any way disturbs Tenant's quiet enjoyment of the Premises, then
Tenant may treat such act or omission as a breach of this Agreement. In the event of any
such breach, Tenant shall send to City a written notice stating the grounds of such breach.
City shall then have thirty(30) days within which to cure such breach. Failure to so cure
any such breach shall constitute an "Event of Default" hereunder.
24. Remedies:
a. City's Remedy for Event of Default. Any Event of Default by Tenant shall be cause for
termination of the Agreement by City in the manner set forth in this paragraph. City shall
deliver to Tenant three (3) business days' prior written notice of its intention to terminate
this Agreement. City shall have the right to declare this Agreement terminated upon the
end of such three(3) business day period, and all rights powers and privileges of Tenant
as provided through the Agreement shall cease, Tenant shall immediately vacate the
entire Premises,and the City may re-enter and take possession of the Premises or any part
thereof, in accordance with applicable law.
b. Tenant's Remedy for Event of Default. Any Event of Default by City shall be cause for
Tenant's recourse to the remedies set forth in this paragraph, at law, or in equity. Tenant
may elect to either terminate this Agreement or continue this Agreement if any Event of
Default by the City shall occur. If Tenant desires to terminate this Agreement, then
Tenant shall deliver to City three(3) business days' prior written notice of its intention to
terminate this Agreement. Tenant shall have the right to declare this Agreement
terminated upon the end of such three (3) business day period, and all obligations of
Tenant as provided through the Agreement shall cease. Furthermore, notwithstanding
any such termination, Tenant may seek to recover in a court of law any lost profits,
damages, or any other costs and/or expenses incurred by Tenant as a result of the City's
breach of this Agreement. If Tenant desires to continue this Agreement, then Tenant may
send to City a written notice indicating that Tenant intends to continue this Agreement,
but which notice shall also state any amounts that the City shall pay to Tenant for lost
profits, damages, or other costs and/or expenses incurred by Tenant as a result of the
City's breach of this Agreement, which Tenant may seek to recover in order to
compensate Tenant for the damage caused to Tenant by City's breach of this Agreement.
25. Non-Waiver of Rights. Any failure by City or Tenant to exercise any remedies as herein
provided after breach, default or failure by Tenant or City, as the case may be, to adhere to the
terms of the Agreement shall not be deemed or construed to be a waiver or continuing waiver by
City or Tenant of any their respective rights to pursue such remedies for any present or
subsequent breach, default or failure.
26. Non-Discrimination. Tenant 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, Tenant shall not violate any applicable laws, rules, or regulations with regard to
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discrimination against any 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 in violation of any applicable laws, rules, or regulations.
27. 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
Tenant to provide services to or on behalf of City, Tenant shall be, and shall perform as, an
independent contractor who agrees to provide the said services on behalf of the City in
accordance with this Agreement. No agent, employee, or servant of Tenant 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 Tenant. None of the benefits provided by City to its employees including, but not
limited to, worker's compensation insurance and unemployment insurance, are available from
City to the employees, agents or servants of Tenant. Tenant shall be solely and entirely
responsible for its acts and for the acts of Tenant's agents, employees, servants and
subcontractors during the term of this Agreement, subject to the terms and conditions of this
Agreement. Tenant 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 Tenant and/or Tenant's employees engaged in the performance of the services agreed
to herein, except for any liability or loss in connection with the City's negligence or willful
misconduct.
28. 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, or by nationally recognized overnight courier.
For City: Aspen City Manager
130 South Galena Street
Aspen, Colorado 81611
With copy to: City Attorney
130 S. Galena St.
Aspen, Colorado 81611
For Tenant: Eden Vardy
Aspen TREE
PO Box 8064
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16116929.9
Aspen, CO 81612
With copy to: Brownstein Hyatt Farber Schreck, LLP
410 17th Street, Suite 2200
Denver, Colorado 80202
Attention: Charles J. Smith
The parties may change or add such designated person(s) or addresses as may be
necessary from time to time in writing.
29. 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.
30. 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 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. If any provision of this
Agreement is held by any court to be invalid, void, or unenforceable, the remaining provisions
shall nevertheless continue in full force and effect.
31. 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.
32. 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.
33. Force Majeure. Notwithstanding anything to the contrary in this Lease, any restriction,
prevention, delay, or stoppage in Tenant's performance of its obligations under this Lease arising
out of or related to Force Majeure shall excuse Tenant from the performance of such obligations
for a period equal to any such prevention, delay, or stoppage, except the obligations, once
accrued, imposed with regard to the payment of rent and all other charges to be paid by Tenant
pursuant to this Lease. "Force Majeure" means any one or more of the following events or
circumstances that, alone or in combination, directly or indirectly, adversely affects the Tenant's
performance of an obligation pursuant to this Lease: fire, earthquake, storm or other casualty or
condemnation; strikes, lockouts, or other labor interruptions or shortages; war, rebellion, riots,
acts of terrorism, or other civil unrest; acts of God; disruption to local, national, or international
transport services; prolonged shortages of materials or equipment, epidemics; adverse weather;;
appeals, litigation, or other challenges related to the entitlement, permitting, development,
financing, or construction of the Premises,any Capital Improvements, Tenant, the City, or this
Lease that is not initiated by Tenant; delays related to the design, construction, or relocation of
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any ditches on the Premises or Premises or the negotiation or approval of entitlements, permits,
or agreements related thereto; delays in the demolition of existing structures or improvements
related to the remediation or removal of asbestos or other hazardous materials; or the City's
breach of this Lease.
34. Counterparts. This Lease may be executed in any number of counterparts, each of which
when executed and delivered shall be an original; but all such counterparts shall constitute one
and the same instrument. Executed copies hereof may be delivered by email of a PDF document,
and, upon receipt, shall be deemed originals and binding upon the parties hereto. Signature pages
may be detached and reattached to physically form one document.
35. Further Assurances. The City and Tenant will make, execute, and deliver such
documents and undertake such other and further acts as may be reasonably necessary to complete
the transaction contemplated herein.
36. No Third Party Beneficiary. No term or provision of this Lease or the Exhibits hereto is
intended to be, nor will any such term or provision be construed to be, for the benefit of any
person, firm, corporation or other entity not a party hereto (including, without limitation, any
broker), and no other person, firm, corporation or entity will have any right or cause of action
hereunder.
37. Time of Essence. The City and Tenant hereby acknowledge and agree that time is strictly
of the essence with respect to each and every term,condition, obligation and provision hereof.
[SIGNATURE PAGE FOLLOWS]
21
16116929.9
WHEREFORE, the parties, through their duly authorized representatives, have executed
this Agreement upon the dates as set forth herein.
LESSOR:
THE CITY FAS EN, COLORADO
By: �-Z&"�
Name: Stephen Barwick
Title: City Manager
ATTEST:
Linda Manning, City Clerk
LESSEE (Tenant):
ASPEN TREE
By:
Name: Eden ardy
Title: Manager
ATTEST:
16116929.9