HomeMy WebLinkAboutresolution.council.033-18 RESOLUTION # 33
(Series of 2018)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING AN AMENDMENT TO THE LONG-TERM
STEWARDSHIP LEASE AGREEMENT FOR THE COZY POINT RANCH AND
EQUESTRIAN CENTER BETWEEN THE CITY OF ASPEN AND COZY
POINT RANCH LLC 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
Amendment to the.Long-Term Stewardship Lease Agreement for the Cozy Point
Ranch and Equestrian Center between the City of Aspen and Cozy Point Ranch
LLC, 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 Amendment
to the Long-Term Stewardship Lease Agreement for the Cozy Point Ranch and
Equestrian Center between the City of Aspen and Cozy Point Ranch LLC, 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 City Council of the City of
Aspen on the 26`h day of February 2018.
Steven Skad n, Mayor
I, Linda Manning, duly appointed and acting.City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held, February 26, 2018.
Linda Manning, City Cl k
J `
LONG-TERM STEWARDSHIP LEASE AGREEMENT FOR
THE COZY POINT RANCH EQUESTRIAN CENTER
THIS LEASE AGREEMENT entered into at Aspen, Colorado, this day of
12018, by and between the CITY OF ASPEN, COLORADO, a municipal
corporation ano home-rule city ("City"), and COZY POINT RANCH, LLC, a Colorado limited
liability company("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 "Premises"), and
desires to lease to Tenant that portion of said Premises containing 45.3 acres described-as Fields
1, 2, 6, 7, 9, 10, 11, 12, 17, 18, and 19, and structures 2, 3,4, and 5 on Exhibit A as "Cozy Point
Ranch Long-Term Equestrian Lease Area and Structures" on the terms and conditions set forth
herein; and
WHEREAS, Tenant has experience in equestrian 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.
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 45.3 acres as described on the attached map
(Exhibit A). Areas within the Property that which lay outside the designated equestrian center
area are known as shared spaces. Tenants are allowed access to shared spaces. Any use of the
shared space must be approved by other tenants and the City prior to use.
Tenant may use the Premises solely for the purpose of managing and operating an equestrian
center and providing related services to third parties. Tenant shall not use the premises described
in the above paragraph 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 zoning underlying the Premises; (c) any laws, condemnation proceedings,
ordinances and/or regulations of any kind or nature adopted 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
Premises, condemn all or any portion of the Premises, 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 as defined in Municipal Code Chapter 14.20. The tenant must also
secure the necessary permits for Special Events through Pitkin County. Tenant shall also meet
all ZGreen requirements for all special events. The tenant shall be limited to no more than one
(1)non-education and/or non-programmatic Special Event each calendar month. Lease
requirements regarding these Special Uses may be amended annually or at the discretion of the
City. The Tenant shall have the right to have smaller,private special events at the Premises,
provided that the Tenant shall make commercially reasonable efforts to schedule all special
events that require closure of the Premises outside of regular business hours. These events shall
be limited to one(1) event per week. Permission for additional smaller,private events may be
granted by the discretion of the Ranch Manager. The tenant must inform the Ranch Manager
and other tenants of any smaller, non-educational special uses that do not meet the criteria for a
Special Event application with at least 1 week's prior notice.
a. Duty of Operation During the term of this Agreement the Tenant agrees to the following
terms and conditions:
i. Equestrian Center. Tenant shall operate a public equestrian boarding, exercising and
training facility, accommodating both English and Western disciplines. General
public office hours for the Tenant and Cozy Point Ranch staff will be 8:00 a.m. to
5:00 p.m., Monday through Friday, except for holidays. The equestrian facilities will
be available for use by the boarders and the general public from 8:00 a.m. to 5:00
p.m., seven days per week, 52 weeks per year. Before and after-hours use may be
arranged with Tenant by waiver and on an individual, case-by-case basis; however,
Tenant shall not be obligated to provide any after-hours use, but such use shall not be
arbitrarily limited. Boarders will be permitted twenty-four hour per day/seven days
per week access to their horses for medical, health, or dietary purposes. Tenant
reserves the right to restrict access to the indoor and outdoor arenas during special
events, clinics, schools, or competitions. The facility shall be operated so as to
accommodate without discrimination the exercising and training needs of the public,
2
both boarders and non-boarders of all ages, subject to equitable bam rules and fees.
Tenant shall arrange to have instruction and training available in both Western and
English disciplines and to accommodate without discrimination, instruction and
training provided by outside trainers, not directly employed by Tenant, to both
boarders and non-boarders subject to equitable barn rules and fees. The Tenant shall
encourage the development of a riding school for children as well as promote various
equestrian programs, clinics and competitions. The public shall not be arbitrarily or
unnecessarily excluded from the use of, or access to, the exercise and training
facilities during such clinics, schools or competitions.
Tenant shall develop and utilize suitable horse board agreements, release agreements,
sublease agreements, incident reports and other grievance procedures documentation,
and any other documents necessary and appropriate to protect the City and Tenant,
and to collect all horse board, rents, deposits, fees and other income derived from the
operations of the ranch and the equestrian center. Tenant shall provide a copy of all
such documents to the City for its approval before their use in the management of the
property. The City's review of such documents shall be conducted within seven(7)
working days and approval shall not be unreasonably withheld.
ii. Haying and Grazing. The Tenant shall use fields indicated in Exhibit A for
agricultural activities which support the equestrian center. Best management practices
for agricultural production must be utilized to maintain soil health, production, and
the longevity of agricultural activities. The planting of noxious weeds is prohibited
(see Exhibit B for a list of noxious weeds). Tenant is responsible for maintaining
livestock fencing, and preventing livestock from entering wildlife habitat areas.
Collaboration with other lease holders on the property for grazing rotations must
include a written agreement. No grazing practices shall persist if the values of the
land set forth by the Cozy Point Ranch Management Plan, including but not limited to
the aesthetic or historical values, are compromised, or the health and productivity of
the land degrades. In the event of degradation, as confirmed by a third party, the
grazed animals must be removed within an agreed upon time between the tenant and
the Ranch Manager.
iii. Machinery Use. The equestrian center operation has sole responsibility and use of
city owned equipment listed in Exhibit C These responsibilities include day-to-day
maintenance, scheduling, and managing temporary use by other tenants of the
property. Any major repairs or replacements needed to maintain the quality and worth
of this equipment shall be treated as a capital assets improvement and will go through
the city processes for improvement. The use of equipment off-site for the purposes
which directly benefit equestrian operations is allowed with approval from the City.
iv. Residential Structures. Tenants shall use and maintain the residential units described
in the above paragraph. These units shall house only ranch staff employees and their
families. Tenants and their staff are responsible for maintaining a 20-foot envelope
around the residential structures. Structure 2 shall be used and maintained as office
space to be shared with the Ranch Manager. See the maintenance and management
section of this contract for information on day to day maintenance and capital
3
improvements.
b. Educational Opportunities. Tenant is encouraged to develop interpretive and educational
outreach programs designed to embrace the community in areas not only relating to the
equine experience,but 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 property for use of shared spaces and or otherwise leased areas.
Collaboration between leasing tenants is greatly encouraged. A report of such activities
will be sent annually to the City of Aspen Parks and Open Space Director.
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 which may exist for developing recreational programming and events at the
ranch. Horse-riding experiences for non-horse owners are encouraged. In addition, non-
horse related activities at the facility will be considered for children and young adults
such as sporting activities, competitions, fund-raising events, hiking„ etc.
d. Manage and Maintenance. Tenant shall manage and maintain buildings, improvements,
and equipment"as is" and to make commercially reasonable efforts to make
improvements as funds are available. Management and maintenance of the equestrian
facility shall include grass cutting and snow removal, routine maintenance of the barns,
houses, arenas and fencing, refuse disposal, purchase of needed supplies; and other work
reasonably required to maintain and operate the property. Capital improvements shall be
planned in cooperation with the city. 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 property, including, but not limited to, trash and recycling
removal, cleaning of ditches, painting, cleanup of storage areas, including snow
storage areas, livestock watering and electrical utility maintenance and any other
reasonable maintenance to keep the property in a visually-pleasing condition while
maintaining a fully functional and safe working environment. This section includes
normal day-to-day operations of a working ranch. Examples include, but are not
limited to, field disking and seeding, fence repair and cross fencing, irrigation
operations and repair, 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. Tenant shall make commercially
reasonable efforts to improve the condition of the pastures, fields, and fencing and to
cooperate with City to ensure that the irrigation systems do not deteriorate from their
current condition.
4
Tenant also, at its sole expense, shall keep the premises, including roadway, outdoor
walks and access ways, in a good, clean and safe condition and do all work and repair
necessary to maintain the same and to keep it from deteriorating; provided, however,
that the parties hereto agree that Tenant's duties set forth in the preceding 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.
All areas used to board horses 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
that are best management practices in the business of animal husbandry and the
operation of an agricultural center.
Repairs and replacement of capital infrastructure shall be undertaken by the City as
needed and will be effected through the City of Aspen Asset Management Plan
Process or on an emergency basis if required to protect the City's assets and/or the
Tenant's property and safety. This will be done solely upon City Council's
appropriation of necessary funds. Capital infrastructure is defined as structures, roads,
and features that create value and increase sustainability of a working ranch.
ii. Repairs and Alterations by Tenant. Tenant, upon City's written consent, may, at its
own expense, make reasonable and necessary alterations or improvements to the
Premises. All alterations, additions and improvements shall be performed in a
workmanlike manner, in accordance with all applicable building and safety codes,
and shall not weaken or impair the structural strength or lessen the value of the
Premises. Tenant shall work with City in creating, for each calendar year, a schedule
of capital improvements, repairs and/or maintenance items that the Tenant may affect.
No such capital improvements, repairs and/or maintenance shall be conducted
without the City's prior written consent. All capital improvements, repairs and/or
maintenance, 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 are identified in writing as such before they are
constructed or placed into service. Tenant agrees that prior to any construction or
installation of alterations, additions or improvements,Tenant shall post on the
Premises in a conspicuous place a notice of non-liability for mechanic's lien as
specified attC.R.S. Section 38-22-105 on behalf of the City and shall notify City of
such posting and the exact location of same. Perfection of a mechanic's lien against
the Premises as a result of Tenant's acts or omissions may be treated as a_material
breach of this Agreement.
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 notice
to Tenant in advance of any intent to undertake alterations or repairs as authorized in
5
this paragraph and all work shall be performed at such times as mutually agreed to
between the parties so as to eliminate or minimize any disruption of Tenant's
business and protect the health and safety of the animals.
iv. Capital Infrastructure Improvements. Capital infrastructure improvements, which are
recognized as an important element ensures long-term viability of the ranch which, if
improved, will enhance the value of the property, or substantially prolong its useful
life. These improvements shall be accomplished through the City of Aspen Asset
Management Plan Process. This process, which includes the recommendation,
approval, and appropriation of funds for capital maintenance and improvements for
facilities within the City of Aspen, will be the mechanism that the City of Aspen will
follow to provide funding to the facility.
Tenant shall be responsible to maintain a capital maintenance and improvement list
which will be reviewed annually with City of Aspen staff. Staff will then prioritize
specific items for inclusion in the Asset Management Plan Process contingent upon
.available funding.
e. Storage of Vehicles and Miscellaneous Items. Tenant shall allow only those vehicles and
other miscellaneous items that are directly associated with facility operations to be stored
on the property described in this lease agreement. The facility shall not be operated as a
storage facility for any vehicles or other miscellaneous items that are not directly related
to equestrian facility operations or agricultural operations unless otherwise permitted by
the City Parks and Open Space Director. Storage of horse trailers at the facility is
allowable, with respect to equestrian center rules and protocols. Storage of miscellaneous
items shall be within the equestrian center designated area, condensed to smallest area
possible, and as out of view of HWY-82 and the Brush Creek Community as possible,
unless otherwise directed by the City. Storage of all miscellaneous items and vehicles
shall not occur in areas of native vegetation, or within the designated riparian area.
Tenant shall work with the City to designate an appropriate location for materials and
vehicle storage during the master planning.process.
4. Payment. Tenant agrees to pay one half of net profit earned by the LLC. The City will
have access to accounting information in order to determine payment as based on profit and loss
budget. This information will be provided to the City on a quaterly basis. However, payment
shall be calculated based on the fiscal year, with full payment due on March Is`.
5. Entry Permission. City shall be entitled to enter upon the Premises at all reasonable
hours for the purpose of inspecting the same, preventing waste or loss,or enforcing any of City's
rights hereunder. City shall contact the Tenant to notify of such inspection and will make
arrangements to be accompanied by either the Ranger Manager or Tenant's representative.
6. Extent of Rights of Property. Tenant shall be responsible to ensure safe and open public
access to the facilities of the property covered under this lease agreement. In the event of risk to
safety and or health of the users, animals, or tenant, the Tenant reserves the right to designate
policies and procedures for controlling access to the designated lease area.
6
7. Conservation Values and Stewardship Guidelines. Tenant shall maintain the facilities
and property in concert 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 and the vitality of the organizational goals set forth by the tenants and
landowner.
b. Environmental Protection. Tenant shall comply with all environmental protection
recommendations and guidelines as set forth by the Cozy Point Ranch
Management Plan. Any and all activities and events on the ranch will address
environmental considerations at every stage and will include environmental
factors in every decision to purchase a product or contract a service, in accordance
with the City's ZGreen event standards. Tenant will make efforts to minimize
water and energy consumption, waste generation, and air pollution emissions. No
magnesium chloride will be used in any area of Cozy Point Ranch properties.
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 activities and capital improvements
must be actively working towards the City's goal of the reduction of Green House
Gases(GHG). It is the Tenant's responsibility to identify, upgrade, install, operate
and manage the property toward achieving this goal.
Increase the use of highly fuel-efficient and low emissions-fuel engines and
machinery in on-road and off-road vehicles used in the day to day operations of the
facility, when new equipment is purchased as needed.
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 that best
suits the needs of the ranch and its operations.
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
90 minutes or otherwise be approved by a City-designated official. (Ord. No.
27-2005, §1; Ord. No. 8-2008)
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
7
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 property
unless otherwise specified by the City Open Space Director. Use of wild habitat
areas for events and or other uses not congruent with outdoor recreation must be
approved by the City. Dumping or storing equipment in areas of designated
wildlife habitat is prohibited unless otherwise directed by the City.
iii. Riparian Area and Waterways Protection. Tenant is responsible to maintain the
integrity of the designated riparian area indicated on Exhibit A as"Protected Riparian
Area". This includes the maintenance of fencing and access points granted to lessee.
Access point for livestock shall be protected and maintained by lease holder. Any
degradation to the riparian habitat 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 subleases.
All recyclables and yard waste accumulated on any 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.
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.
The use of compost systems is recommended when possible. Onsite compost must
take measures to protect water ways from runoff.
8. Monitoring and Reporting. To facilitate monitoring of all activities of the Property 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. The annual report shall
summarize activities, programs, and outcomes of operations on the ranch during the year.
8
Proposed changes 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 ranch land
activities, and equestrian facility management, and business management updates. As
well as a capital asset improvements proposal or update describing specific plans in each
area moving forward.
i. Agricultural Activities. The agriculture report will include specific information
related to all agricultural activities proposed for the facility, including but not limited
to haying operations, grazing operations, and manure management summaries. This
report will also specify proposed improvements to the quality of the agricultural lands
for review by the City of Aspen.
ii. Educational and Recreational Activities. This report will summaries educational and
recreational activities offered on the Property in the previous year. This information
includes but is not limited to participation demographics and numbers, types of
programs offered, and improvements made since the previous year. This report will
also specify proposed improvements needed for success in the following years.
iii. Financial Reporting. Tenant shall submit quarterly financial reports including income
and expense statements to the City of Aspen Parks Department and maintain normal
books of account on all operations for review upon request by City officials or staff.
b. Complaints and Incident Reports. Any incidents of complaints and all issues requiring
City action or decisions need to be submitted to the Director of Parks and Open Space.
Further, City shall promptly notify Tenant of any complaints received by City regarding
the operation of the facility. Tenant shall not discourage the reporting of complaints or
issues directly to the City of Aspen which may arise from any source.
c: Annual Performance Measures. Tenant shall be required to meet or exceed the following
annual performance measures as outlined below:
i. Customer Sunley. Through an annual survey of Tenant's clients, the City shall
acquire customer service data to assess the level of satisfaction with Tenant's
staff, including dispute resolution process, and the overall general condition of
facilities and services provided at Cozy Point Ranch. The City and Tenant shall
agree on a survey instrument to be used for this purpose. 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.
ii. Veterinarian Review. Tenants will annually engage an equine veterinarian to
provide a professional inspection and assessment of the horses and their facilities
within Cozy Point Ranch, LLC designated areas. The City and the Tenant shall
mutually agree on the selection of the veterinarian. The specialist will certify that
the operations are meeting the standard of professionalism and safety as it relates
9
to the overall equine operations. The specialist will inspect and report on
deficiencies and violations regarding the health, safety and welfare of the horses
and boarding areas. Tenant shall act as project manager to remedy immediately
any deficiencies that may be uncovered. For any and all items that require a
significant capital investment, Tenant shall prepare a summary of improvements,
costs, and completion schedule to present to the City to correct the deficiencies.
If approved, funding will be effected through the City of Aspen Asset
Management Plan Process at the discretion of City Council.
iii. Third-Parry Specialist. The City shall annually engage an equine specialist to
provide a professional inspection and assessment of the equine facilities at Cozy
Point Ranch. The City and the Tenant shall mutually agree on the selection of the
equine specialist. The specialist will certify that the operations are meeting the
standard of professionalism and safety as it relates to the overall equine
operations. The specialist will inspect and report on the footing, fencing, safety
and any other items that may be deficient regarding the operations or general
maintenance of the facility. Tenant shall act as project manager to remedy
immediately any deficiencies that may be uncovered. For any and all items that
require a significant capital investment, Tenant shall prepare a summary of
improvements, costs, and completion schedule to present to the City to correct the
deficiencies. If approved, funding will be effected through the City of Aspen
Asset Management Plan Process at the discretion of City Council.
iv. AVLT Annual/nventorv. The Aspen Valley Land Trust(AVLT) shall craft an
annual inventory and action plan of sustainable agricultural practices and
environmental stewardship actions, 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
property. Any deficiencies noted in AVLT's report shall be corrected by Tenant
within a reasonable time.
Non-compliance with any goals or objectives set forth herein shall place Tenant on
probation effective immediately for one(1) year, during which time Tenant shall cure any
and all deficiencies. The City, at its sole discretion, may terminate this lease with ninety
(90) days' notice, if Tenant fails to cure any terms and conditions set forth herein and
above within the one(I)year probation period. 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.
9. Emergency Plans and Safety Procedures. In compliance with instructions from the
Aspen Fire Protection District, Tenant shall create, submit 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. 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 property. In addition, an
annual safety inspection and audit will be conducted by the Colorado Intergovernmental Risk
Sharing Agency(CIRSA), and Tenant agrees to implement any and all recommendations for
10
improvements that may arise from such audit, including but not limited to electrical,
mechanicals, and any other utilities. The City may contribute to these improvements, based
upon their cost and size. If an inspection uncovers a significant capital expenditure that is
needed, the City of Aspen and Tenant shall work together to incorporate these necessary
improvements into the City of Aspen Asset Management Process.
10. Signage. 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 leased property 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
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.
11. Permits. Tenant shall secure such permits as may be required by Pitkin County, if any,
for uses of and activities on the ranch and equestrian center property and notify the City Manager
and other organizations and agencies (e.g., Sheriff, Brush Creek Homeowners Association,
Snowmass Village, etc.), where appropriate, in advance of all special events on, or uses of, the
Premises.
12. Duties of the City Relative to the Equestrian 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 equestrian business 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 during the term of this Agreement, then
Tenant shall have a right of first refusal to purchase the Premises. Tenant's right shall
run for a period of thirty(30) days from the date that City presents to Tenant an executed
contract to purchase the Premises. Tenant may exercise such right within such time
period by providing City with a written notice stating that Tenant desires to purchase the
Premises on the same terms as set forth in said contract. Tenant's failure to send such a
notice within the thirty(30) day time period shall constitute a waiver of Tenant's right.
13. Utilities and Security System. All utilities (including electric, gas,trash, internet)with
the exception of telephone shall be spilt 50/50 between the Tenant and the City. The electrical
utility expenses for running the irrigation from the Cozy Point South Ditch and Rex and Smith
Ditch shall be the responsibility of the City.
14. Personal Property. All personal property and trade fixtures placed on the Premises shall
11
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.
15. 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 Icasehold 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.
16. 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, which arise out of or
are in any manner connected with this Agreement, if such injury, loss, or damage is caused in
whole or in part by, the omission, error, or negligence of the Tenant, any subcontractor of the
Tenant, or which arises out of any workmen's compensation claim of any employee of the
Tenant or of any employee of any subcontractor of the Tenant.
17. Public Liability Insurance. Tenant shall maintain such general liability insurance
coverage for persons and animals under Tenant's care as shall be required by the City on all uses
of and activities on the property and obtain signed Releases of Liability of both the City and the
management entity from all boarders and all participants in all equestrian activities on the
property, to be preserved for not less than three (3) years. 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 discretion, terminate this Agreement 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.
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 be satisfactory to City.
The amount of this insurance, without co-insurance clauses, shall not be less than the maximum
liability that can be imposed upon the City of Aspen under the laws of the State of Colorado
found at C.R.S. 24-10-101et 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
12
C.R.S. 24-10-114, as amended. City shall notify Tenant of any changes in the above referenced
amounts.
18. Termination Due to Fire or Similar Catastrophe. If, absent negligence or fault on the part
of Tenant,the Premises shall be damaged by fire or other catastrophe so as to render said
Premises wholly untenable, and if such damage is 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 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 Tenant may elect in writing(no later
than ten (10) days from the date of the architect's certificate) 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 the
Premises were damaged absent negligence or fault on the part of Tenant, then Tenant shall be
released from Tenant's obligations set forth herein to 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 by fire. 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 Tenant
(to be offset against rents otherwise due to City) with all reasonable speed to restore the Premises
to its former condition 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.
19. City to be Named a Co-Insured or Additional Insurance. 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.
20. Condemnation. If during the term of this Agreement, or any renewal of it, the whole or
part of the Premises, or such portion as will make the Premises unusable for the purpose leased,
or the leasehold interest, be condemned by public authority, for public use, then this Agreement
shall cease as of the date of the vesting of title in the Premises in such condemning authority, or
when possession is given to such authority, whichever event occurs first. Tenant shall be entitled
to that part of any condemnation award for the value of the unexpired term of this Agreement or
for any other estate or interest in the Premises.
21. 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.
22. Breach of Contract:
a. Breach by Tenant: If Tenant shall fail to timely comply with any of the terms or
13
conditions of this Agreement, including, but not limited to, maintaining the premises used
by animals in a safe, healthy and sanitary condition, or any notice given under it, or shall
become insolvent, or shall have or attempt to make an assignment for the benefit of
creditors, or if any of its property be attached and such attachment is not promptly
released, or if an execution be issued against it, or, if a petition be filed by or against it, to
have it adjudicated a bankrupt, or if a trustee or receiver shall be created or appointed to
take charge of its assets, or if it shall abandon the Premises for a period of more than
seventy-two (72) hours, then at any time afterwards City may treat such act or omission
as a breach of this Agreement. 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. Failure to so cure any such 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.
23. 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, and Tenant shall immediately vacate the
entire Premises. In addition to the above stated remedy, if in the reasonable opinion of
the City, Tenant has failed to maintain the premises in a safe, healthy and sanitary
condition which threatens the well being of any animals boarded on the premises
following notice of such condition(s) by the City and failure to cure by Tenant in a
reasonable period of time, City shall have the right to terminate this Agreement upon
seventy-two (72)hours written notice as provided above; and, at its option, enter into the
Premises and remove all persons and take and retain possession thereof either with or
without process of law. The City shall retain the services of a qualified veterinarian to
assist the City in determining the safety and well being of any animals boarded at the
facilities.
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. 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
14
through the Agreement shall cease. Furthermore, notwithstanding any such termination,
Tenant may seek to recover in a court of law any lost profits 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 of rent that Tenant intends to withhold for lost profits, or other costs,
which Tenant may seek to recover in order to compensate Tenant for the damage caused
to Tenant by City's breach of this Agreement.
24. Non-Waiver of Rights. Any failure by City or Tenant to so terminate this Agreement as
herein provided after the 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 terminate the Agreement for
any present or subsequent breach, default or failure.
25. 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,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.
26. 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 use his or her best efforts to provide the said services on
behalf of the City. 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. Tenant shall not 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 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.
27. 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
15
receipt requested.
For City: Aspen City Manager
130 South Galena Street
Aspen, Colorado 81611
For Tenant: Patricia K. Watson
COZY POINT RANCH, LLC
P.O. Box 2207
Basalt, CO 81621
The parties may change or add such designated person(s) or addresses as may be
necessary from time to time in writing.
28. 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.
29. 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.
30. 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 terns as set forth herein shall be void and of no effect.
31. Amendments. Except as otherwise provided herein, this Agreement and all of its terms
and conditions may not be amended or modified absent a written agreement duly executed by the
parties.
WHEREFORE, the parties, through their duly authorized representatives, have executed
this Agreement upon the dates as set forth herein.
[SIGNATURE PAGE FOLLOWS]
16
LESSOR:
THE CITY FAS EN, COLORADO
By: /
Name: Stephen Barwick
Title: City Manager
ATTEST:
Linda Manning, City Clerk
LESSEE (Tenant):
COZY POINT NCH C
i
By:
Name:tPatti Watson
Title: Manager
ATTEST:
17