HomeMy WebLinkAboutresolution.council.045-06
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RESOLUTION NO. ~
Series of 2006
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A LONG TERM
LEASE AGREEMENT WITH THE ASPEN CENTER FOR ENVIRONMENTAL STUDIES,
AN INTERGOVERNMENTAL AGREEMENT WITH THE ASPEN CONSOLIDATED
SANITATION DISTRCIT, AND AUTHORIZING PROJECT FUNDING FOR THE
COMPLETION OF THE JENNY ADAIR REGIONAL STROMW A TER QUALITY
PROJECT.
WHEREAS, there has been submitted to the City Council a Long Term Lease Agreement
(Attachment" A") between the City of Aspen and the Aspen Center for Environmental Studies
(" ACES") which agreement provides for the City of Aspen to lease from ACES for a period of
forty years a parcel of land upon which the City proposes to build employee housing, and for
ACES to lease from the City of Aspen for a period of forty years a parcel of land upon which the
ACES parking lot will be constructed; and
WHEREAS, there has been submitted to the City Council an Intergovernmental
Agreement (Attachment" B") between the City of Aspen and the Aspen Consolidated Sanitation
District to enable the City of Aspen to engage Western Slope Utilities, Inc. at bid prices for
materials and labor established by a contract between the Aspen Consolidated Sanitation District
and Western Slope Utilities, Inc.; and
WHEREAS, there has been submitted to the City Council a Comprehensive Project
Budget/Construction Costs for the Jenny Adair Project (Attachment" C"); and
WHEREAS, there has been submitted to the City Council a Contract for Construction
with Western Slope Utilities, Inc. for the completion of work required for the construction of the
Jenny Adair Regional Stormwater Quality Project; and
WHEREAS, the City Council desires to complete the Jenny Adair Regional Stormwater
Quality Project and to enter into that aforementioned Long Term Lease Agreement.
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NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO:
Section One
That the City Council of the City of Aspen hereby approves the aforementioned Long
Term Lease Agreement with the Aspen Center for Environmental Services in substantially the
form as presented in Attachment "A" appended hereto; the Intergovernmental Agreement
between the City of Aspen and the Aspen Consolidated Sanitation District in substantially the
form as appended hereto as Attachment " B"; authorizes the expenditure of funds as set forth in
the Comprehensive Project Budget/ Construction Costs as appended hereto as Attachment" C";
and, approves the Contract for Construction with Western Slope Utilities, Inc. in substantially the
form as appended hereto as Attachment "D". The City Attorney is authorized to approve
changes to the aforementioned documents to comport with changes requested by the contracting
parties and provided the essential terms and conditions are not altered without prior approval of
the City Council. The City Manager and Mayor are authorized to execute the aforementioned
documents and other related documents required to complete the contemplated transactions
described herein.
Dated: ~ /&/
,2006.
I, Kathryn S. Koch, 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,
C,I"ooo, '" mm'o, hOd r /.q , 2006,
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Construction License Agreement
(City as Grantee)
THIS CONSTRUCTION LICENSE AGREEMENT is made and entered into this
<<(;'t.. day of June, 2006, by and between Aspen Center for Environmental Studies, a
Colorado nonprofit corporation ("Grantor") and the City of Aspen, a Home Rule Municipality
(hereinafter referred to as "City").
WIlT N E SSE T H:
WHEREAS, Grantor is the owner of certain real property located in the City of Aspen,
Pitkin County, Colorado, as more fully described in Exhibit A"bd appended hereto ("Grantor's
Property"); and
WHEREAS, Grantor is willing to grant to City a license for the purposes and under
certain terms and conditions set forth herein on such portion of Grantor's Property as is
reasonably necessary to construct the improvements described on Exhibit B;\md
WHEREAS, City is desirous of accepting said license under the terms and conditions set
forth herein.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor and City covenant and agree as follows:
1. Grant of License. Grantor, subject to the terms and conditions hereinafter set
forth, does hereby authorize the City, and during periods of construction, its contractors, to
utilize the License Area for the uses as permitted herein. Otherwise, this Agreement shall not be
assignable except with the express advance written permission of Grantor.
2. Use. City may use the License Area for activities related to the construction of a
project commonly known as the Puppy Smith Storm Water Project as described and shown on
Exhibit Bippended hereto and made a part hereof. "Construction" as and wherever said term is
employed herein, shall mean all of the activity as contemplated in the project plan as more fully
described and depicted on Exhibit B-:-I It is expressly stipulated that the use of the License Area
is to be strictly private and use of the License Area shall not be a public use. This grant of a
license is subj ect to all outstanding superior rights, recorded and unrecorded, and the right of the
ACES to renew and extend the same. This license shall include all activity reasonably necessary
to complete the improvements contemplated on Exhibit B~ncluding grading, access, staging,
excavation, digging, dredging, planting, reseeding and re-grading.
3. Term. The term of this License shall be temporary and shall be for the time
period of July 1, 2006 through November 30, 2007. Unless extended, superseded or replaced by
subsequent document, this Agreement shall automatically terminate and be of no further force
and effect on the end of the term hereof.
4.
following:
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Conditions. This License Agreement is specifically conditioned upon the
a. City hereby agrees to make all improvements upon the License Area in
accordance with the technical specifications and drawings appended hereto as
Exhibit B."" \ City shall be responsible for all costs associated with 'said
improvements along with contracting for said work and managing all contracts
and work associated with said improvements. The City acknowledges that
Grantor operates an environmental educational facility adjacent the License Area.
All work associated with the improvements shall be managed so as to minimize
the impacts on the operation of Grantor's facilities and programs on property
adjacent the License Area.
b. Prior to the start of any work associated with said construction, City shall
meet with representatives of the Grantor to coordinate work, and obtain final
approval of the actual work to be done and the scheduling and management of the
work.
c. At the conclusion of all work, City shall notify Grantor and Grantor shall
have the right to inspect all work performed and to accept the improvements in
conformity with the technical specifications appended hereto as Exhibit B:-l City
hereby agrees to perform any additional work that is reasonably required by the
Grantor to ensure that the contemplated improvements conform to the technical
specifications set forth in Exhibit Ir!ppended hereto. Further, the City agrees
to restore any portion of Grantor's Property disturbed during construction
activity as close as reasonably practical to the condition of such property prior to
commencement of construction activity. For example, if the City shall use an
area within Grantor's Property for parking or construction staging, but such
area is not to remain improved pursuant to the plans attached as Exhibit B:fthe
City shall restore such area with plantings, re-grading and re-seeding such that,
to the extent reasonably practicable, the portion of Grantor's Property on which
improvements are not constructed will be restored to its current condition.
d. To the extent permitted by law, the City shall at all times protect,
indemnify, and save harmless Grantor from any and all claims, demands,
judgments, costs, expenses, and all damages of every kind and nature made,
rendered or incurred by or in behalf of any person or corporation whatsoever, in
any manner due to or arising out of any injury to or death of any person, or
damage to property of any person or persons whomever, including the parties
hereto and their officers, families, servants, agents, and employees, in any
manner arising from or growing out of the construction of the contemplated
improvements, or the failure to properly construct said improvements, and from
all costs and expenses, including attorneys fees connected in anywise with the
matters and things contained in this agreement, including any mechanic's lien
claims for unpaid labor, services or materials affecting any of Grantor's
2
.
Property. Further, during times of construction, City shall require that all
contractors and subcontractors carry workman's compensation insurance in at
least the statutory amounts and builder's risk insurance in an amount agreeable
to Grantor. Further during periods of construction, the City shall obtain, at its
expense, and keep in full force and effect, with a reputable insurer, general
public liability insurance for the Grantor's Property with a limit of not less than
$1,000,000.00. All said policies shall name Grantor as an additional insured
and the City shall provide Grantor with proof of such insurance.
e. If the City shall fail to locate or construct said improvements in
accordance with the terms and conditions of this agreement and to the entire
satisfaction of Grantor, or shall fail to adjust the improvements to any changes
required by Grantor, or shall in any respect fail to keep and perform any of the
conditions, stipulations, covenants or provisions of this agreement to be kept or
performed by the City, this agreement shall at the option of Grantor be void and
of no effect; and this license shall cease and Grantor shall have the right to
remove any improvements and restore the Licensed Area at any time thereafter
at the sole cost and expense of the City.
5. Notice. Notices and other communications that may be given, or are required to be given
hereunder, shall be in writing and shall be deemed given by the party when delivered personally
or when deposited in the United States mail with sufficient postage affixed and addressed to such
party at the respective address shown below:
CITY OF ASPEN:
City Manager
City of Aspen
130 S. Galena St.
Aspen, CO 81611
GRANTOR:
Aspen Center for Environmental Studies
c/o Tom Cardamone
100 Puppy Smith Street
Aspen, CO 81611
6. Notice of Default. Right to Cure. In the event of any default under the provisions of this
Agreement, the non-defaulting party shall, prior to the exercise of any right or remedy, give the
party alleged to be in default written notice of such default together with right for a period of ten
business days after receipt of such notice to cure said default. If an alleged default by its nature
is not capable of being cured within such time period, the party alleged to be in default shall,
provided such party is proceeding with all due diligence, have up to an additional twenty
business days to cure said default. If a default is not cured within the time provided or any
extension thereof (which right to cure period shall not under any circumstances exceed in the
3
aggregate thirty business days), the non-defaulting party shall then and thereafter be free to
pursue any right or remedy allowed by this Agreement or otherwise by law, including the
termination hereof.
7. General Provisions.
a. Controlling Law. The interpretation and performance of this Agreement shall be
governed by the laws of the State of Colorado.
b. Severabilitv. If any provision of this Agreement, or the application thereof to any
person or circumstanc~, is found to be invalid, the remainder ofthe provisions of this Agreement,
or the application of such provision to persons or circumstances other than those as to which it is
found to be invalid, as the case may be, shall not be affected thereby.
c. Entire Agreement. This instrument sets forth the entire agreement of the parties
with respect to this Agreement and supersedes all prior discussions, negotiations, understandings,
or agreements relating to this Agreement, all of which are merged herein.
d, No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
e. Successors. The covenants, terms, conditions, and restrictions of this Agreement
shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal
representatives, heirs, successors, and assigns and shall constitute a servitude running with the
Property during the term hereof.
f. Captions. The captions in this instrument have been inserted solely for
" convenience of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
IN WITNESS WHEREOF, the parties hereto have executed the foregoing on the day and
year above first given.
GRANTOR:
ASPEN CENTER FOR ENVIRONMENTAL
STUDIES
By: s;;;;' ~ .
fhomas M. Cardamone, Executive Director
State of Colorado
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County of Pitkin
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The foregoing instruroent was acknowledged before me this 2..t:,..{.--0 day of June 2006,
by Thomas M. Cardamone as Executive Director of the Aspen Center for Environmental Studies,
a Colorado nonprofit corporation.
WITNESS MY HAND AND OFFICIAL SEAL.
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No(ary Pu'blic
CITY OF ^lf~OLORADO
By: ~ tV/.L/
Title: LA ~/ /L1 ~_
County of Pitkin
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State of Colorado
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4.~he.I f~o:r:~~ oli,~ngjnstrument W~,S acknowledged before me this 20-1~ day of June,1006,
by ~(tM~ thel'MN~ of the City of Aspen, Colorado.
/ ~? y- P .' 'WITNESS MY HAND AND OFFICIAL SEAL.
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AGREEMENT FOR LONG TERM LEASES
THIS AGREEMENT, made and entered on this , 2006, by
and between the City of Aspen, a Colorado home rule municipal corporation ("City"), and Aspen
Center for Environmental Studies, a Colorado not-for-profit corporation ("ACES") .
WHEREAS, the City owns a parcel of land commonly known as the Puppy Smith parcel
(the "Puppy Smith Parcel") as more fully described in Exhibit "A" appended hereto and by this
reference made a part hereof; and
WHEREAS, ACES owns a parcel of land commonly referred to as the ACES Parking
Lot (the "ACES Parking Lot Parcel") as more fully described in Exhibit "B" appended hereto
and by this reference made a part hereof; and
WHEREAS, The approximate locations of the Puppy Smith Parcel and the ACES
Parking Lot Parcel are shown on the location map attached hereto and labeled as Exhibit "C";
and
WHEREAS, the City and ACES have no immediate need for their respective parcels of
land and desire to enter into long term leases to each other under the terms and conditions of this
Agreement.
NOW, THEREFORE, the parties hereto, for the consideration hereinafter set
forth, agree as follows:
I. The Puppv Smith Property. City agrees to lease to ACES, on the terms and
conditions set forth below, The Puppy Smith Property.
2. The ACES Parking Lot Propertv. ACES agrees to lease to the City, on the terms
and conditions set forth below, the ACES Parking Lot Property. The capitalized term "Property"
as used hereinafter may refer to either the Puppy Smith Property or the ACES Parking Lot
Property, or both, as the context may require.
3. DATES AND DEADLINES.
Item No. Reference Event Date/Deadline
A 5d Subdivision deadline 12/31106
B 6 Title Deadline 1I/30/06
C 6 Survey Deadline 11130/06
D 6 Survey Acceptance Deadline 12/15/06
E 6 Document Request Deadline 12/15/06
F 7a Title Objection Deadline 12/15/06
G Ib,7b Off-Record Matters Deadline 12/15/06
H 7b, 7c Off-record Matters Objection Deadline 12/15/06
1
I 10 Property Disclosure Deadline 12/15/06
J lOa Inspection Obiection Deadline 12/15/06
K lOb Resolution Deadline 12/30/06
L 4b Citv Council Approvinl! Resolution Deadline 6/30/06
M 11 Closinl! Date 2/2/0/07
N 15 Possession Deadline Date 2/20/07
t 0 15 Possession Deadline Time 12 noon
~
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4. LEASES. The partIes agree to execute leases III substantIally the form as the
Lease Agreements appended hereto as Exhibits D and E. The terms of the respective leases
shall be for a period of forty (40) years starting at 00:0 I a.m. on the date following the closing
date and terminating forty (40) years later at 12:00 midnight.
5. CONTINGENCIES. The transactions contemplated herein are specifically
contingent upon the following:
...... a. City is a Home Rule Municipality governed by a City Council. The City
.... Council shall approve this Agreement as a condition to the closing of this Agreement
'-, -
~ evidenced by a duly approved resolution of the City Council. The resolution approving
.\ this Agreement and the Lease Agreements shall be completed on or before the City
"J Council Approving Resolution Deadline (S3L). The City Council, in its sole and
~ complete discretion, may approve or deny approval of this Agreement for any reason, or
] '_ eo '"~:"" "lie", by rn,""og "", 'h'" ,,,oomrn' "P'""'~ "" '"'"""," '0 porn", ,11
~ necessary land use approvals to construct on the ACES Parking Lot Property
...---. condominiumized townhome~for use as deed-restricted employee dwelling units that will
be rented or sold to local qualified employees. As part of this project, City hereby
covenants that it shall not remove or otherwise destroy the following trees on the ACES
Parking Lot Property after its lease to the City:
i. The large evergreen tree on the North East comer of the ACES
Parking Lot Property;
ii. The cottonwood tree on the North-west comer of the ACES
Parking Lot Property; and
iii. The grove of pine trees currently buffering the ACES Parking Lot
property from the adjoining U.S. Post Office property.
In addition to the foregoing, City agrees to obtain ACES' prior written approval of the
architectural style and manner and method of construction of the improvements to be
placed on the ACES Parking Lot Property, it being the express, stated intention of the
parties to construct energy efficient "green" buildings in a style that is not inconsistent
with ACES' "tree house" building.
c. City by entering into this agreement hereby covenants that it shall
maintain a set back area comprising a ten foot strip running along the south side of the
ACES Parking Lot Property after its lease to the City. "Set back area" as that term is used
2
herein shall have the same definition and restrictions as set forth in the City of Aspen's
land use code. Notwithstanding any such definition or restrictions, City further covenants
that it shall not use the ten foot set back area for the construction of any amenities
whatsoever, including, but not limited to, porches, walkways, garden walls or containers,
fences, trellises, or anything of a similar nature.
d. The ACES Parking Lot Property has not been previously subdivided and
the parties hereto recognize that in order for the ACES Parking Lot Property to be
developed as contemplated, it must be subdivided in accordance with the City of Aspen
land use code, The City, at its expense, shall file an application for said subdivision and
take all steps necessary to obtain said approvals from the City prior to the Subdivision
Deadline.
e. City covenants that it shall grant to ACES a license to construct a new
entrance pillar similar in form and kind as the entrance pillar now existing at the entrance
to the ACES Hallam Lake property on Puppy Smith Street. The entrance pillar may be
constructed on the City-owned electric switch station property adjacent to the Puppy
Smith Property, and shown on the Jenny Adair/ACES Revised Plan, dated August 1,
2005, attached hereto as Exhibit "C". The entrance pillar shall be subject to relocation
or removal by the City, at its sole cost and expense, if at some time in the future the City
and ACES decide that the entrance pillar should be relocated or eliminated.
f. City shall build and install, at its sole cost and expense, no later than 90
days following the Closing Date, an 18-space gravel parking lot, landscaping with
improvements, site signage and fencing on the Puppy Smith Property in accordance with
plans and specifications set forth in the lease agreement set forth on Exhibit "E". In
addition, City shall provide maintenance and upkeep of that portion of Puppy Smith
Street extending through and to the entrance to ACES Hallam Lake property.
g. City shall perform drainage work, to the satisfaction of the City Engineer,
at the current entrance to the ACES Hallam Lake property, no later than 90 days
following the Closing Date.
h. City shall, at its sole cost and expense, cause to be demolished all
structures currently located on the Puppy Smith Property no later than 90 days following
the Closing Date. ACES shall cooperate with City in connection with the processing of
all necessary applications for the work contemplated hereunder.
i. City shall cause to be constructed various storm drainage facilities,
including pre-treatment sediment basins, underground pipelines, vaults and the like, all to
conduct storm drainage water to the Jenny Adair Lake and wetlands area. At closing,
ACES shall grant to City a temporary construction license and Storm Water Sewer
Easement agreement in the forms attached hereto as Exhibits "F" and "G" for the
construction, maintenance and operations of the storm drainage facilities. City shall be
obligated, at its sole cost and expense, to perform all water treatment (including
hazardous material removals), activities on storm water flows prior to discharging the
same on to ACES property. The storm drainage facilities shall not materially adversely
3
impact the root systems of the existing "old-growth" trees on ACES property. Prior to
selecting the depth, width and alignment of the excavations for the storm drainage
facilities, City shall consult with ACES.
6. EVIDENCE OF TITLE. On or before Title Deadline (S3B) each party shall
furnish to the other party, at each party's sole cost and expense, a current AL T A commitment for
leasehold title insurance on the party's Property to be leased in an amount equal to
$1,000,000.00, from a title company acceptable to the other party. The title commitment shall
commit to delete or insure over the standard exceptions which relate to:
(1) parties in possession;
(2) unrecorded easements;
(3) survey matters;
(4) any unrecorded mechanics liens;
(5) gap period (effective date of commitment to date deed is recorded), and
(6) unpaid taxes, assessments and unredeemed tax sales prior to year of
Closing.
Any additional premium expense to obtain this additional coverage shall be paid by the party
responsible for obtaining the policy. Each party shall cause the title insurance policy to be
delivered to the other party as soon as practicable at or after Closing, but no later than 90 days
following Closing.
On or before Title Deadline (S3B), each party, at the party's expense, shall furnish to the other
party at or before Document Request Deadline (S3E), (1) a copy of any plats, declarations,
covenants, conditions and restrictions burdening the property to be conveyed by that party, and
(2) copies of any other documents listed in the schedule of exceptions (Exceptions.) The title
insurance commitment, together with any copies of such documents furnished pursuant to this
Section shall constitute the title documents (Title Document.)
7. SURVEY. At City's expense, improvement surveys of each Property shall be
prepared from an on-the-ground inspection by a surveyor registered in the State of Colorado,
which surveyor shall appropriately locate all boundary comers of the Property not previously
located. Such survey shall be dated as of a date no earlier than two years prior to the date of this
Agreement and shall contain:
(I) The correct legal description of the Property to be leased by platted lot
description if the Property is platted, otherwise by metes and bounds description;
(2) All property dimensions of the Property and the location of all boundary
comers of the Property.
(3) The number of square feet contained within the Property (to at least the
nearest hundredth of a square foot).
(4) The location of any and all easements, water courses, and rights-of-way
which are revealed by a physical inspection of the Property or the commitment and
showing the recording information for any easement or right-of-way created by a
recorded document;
(5) The location of any and all improvements located on, under, or
encroaching onto the Property including but not limited to any and all buildings,
sidewalks, paved parking areas, roads, poles, overhead power lines, and fences.
4
(6) A certificate to the parties and the title company engaged to provide a title
commitment.
It shall be considered a defect in title hereunder if any improvement located on the Property
encroaches upon adjacent lands or if any improvements on adjacent lands encroach upon the
Property.
Such survey for each Property shall be completed by no later than the Survey Deadline (g3C).
In the event that the party to receive the property, in its sole discretion is not satisfied with any of
the matters reflected by the survey, that party shall have the option to terminate this Agreement
by giving written notice to the other party, which notice must be given no later than 5:00 P.M.
M.D.T, of the Survey Acceptance Deadline (g3D). If a party fails to terminate the Agreement
as set forth above, the survey review shall be deemed to have been satisfied.
8. TITLE.
a. Title Review. Each party shall have the right to inspect the Title Documents.
Written notice by a party to the other of unmerchantability of title or of any other unsatisfactory
title condition shown by the title documents shall be signed by or on behalf of that party and
given to the other party on or before Title Objection Deadline (g3F), or within five (5) calendar
days after receipt by the party of any Title Documents or endorsement adding new Exceptions to
the title commitment together with a copy of the Title Document adding new Exceptions to title.
If either party does not receive the other party's notice by the date(s) specified above, both
parties accept the condition of the title as disclosed by the Title Documents as satisfactory.
b. Matters Not Shown bv the Public Records. Each party shall deliver to the other
party, on or before Off-Record Matters Deadline (g3G), true copies of all leases(s) and
survey( s) in each party's possession pertaining to the Property and shall disclose to the other
party all easements, liens and other title matters not shown by the public records of which the
parties have actual knowledge. Each party shall have the right to inspect the Property to
determine if any third party has any right in the Property not shown by the public records (such
as unrecorded easements, unrecorded lease, or boundary line discrepancy). Written notice of any
unsatisfactory condition(s) disclosed by one party or revealed by such inspection shall be signed
by or on behalf of the party and given to the other party on or before Off-Record Matters
Objection Deadline (g3H). If either party does not receive the other party's notice by said date,
that party accepts title subject to such rights, if any, of third parties of which that party has actual
knowledge.
c. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO
GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM
ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY
OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND
EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF SUCH DEBT WHERE
CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE
SUCH INDEBTEDNESS WIYTHJOUT SUCH AN INCREASE IN MILL LEVIES. EACH PARTY
SHOULD INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE AllTHRORIZED
GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS, EXISTING MILL LEVIES OF
SUCH DISTRICTS SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR INCREASE IN
SUCH MILL LEVIES,
5
In the event either parcel of land is located within a special taxing district and either party
desires to terminate this Agreement as a result, if written notice is given to the other party on or
before Off-Record Matters Objection Deadline (S3H), this Agreement shall then terminate. If
either does not receive notice from the other party by the date specified above, that party accepts
the affect of the Property's inclusion in such taxing district(s) and waives the right to so
terminate.
d) Right to Cure. If either party receives notice of unmerchantability of title or any
other unsatisfactory title condition(s) as provided in subsection (a) or (b) above, the other party
shall use reasonable effort to correct the unsatisfactory title condition(s) prior to Closing Date. If
either party fails to correct said unsatisfactory title condition(s) on or before Closing Date, this
Agreement shall then terminate, provided, however, the other party may, by written notice
received by the party, on or before closing, waive objection to said unsatisfactory title
condition(s).
9. LEAD-BASED PAINT. N/A
10. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE
PARTIES. Both parties hereby covenant, represent and warrant to the other party the following,
all of which shall be true, accurate and complete as of the date hereof and shall survive the
closing:
a. Status and Authoritv. Each party has the right, legal capacity and
authority to enter into and perform its obligations under this Agreement, and the
documents to be executed and delivered pursuant thereto.
b. No Liabilities. Prior to or at the time of Closing, both parties shall
pay, or otherwise secure the release of, every debt, account payable, liability or
obligations or any nature whatsoever, contingent or otherwise, that is, or could become, a
lien or other encumbrance against the Property, and both parties shall not engage in any
action with respect to the Property between the date of execution of this Agreement and
the closing date that could give rise to a lien or claim against the Property.
c. Litigation. No action, suit or proceeding is pending or, to the best
of either party's knowledge, threatened against the Property or either party or affecting
either party's interest in, management of, or other activities with respect to, the Property.
Neither party is in default of any order of any court, arbitrator or governmental body
respecting the subject Property.
d. Environmental Matters. To the best of the either party's
knowledge, there are no hazardous materials on the Property and the Property has never
been used to generate, manufacture, refine, transport, treat, store, handle, dispose,
transfer, produce, process, or in any manner deal with hazardous materials. For purposes
of this Contract, the term "hazardous materials" shall mean any gasoline, petroleum
products, explosives, radioactive materials, hazardous materials, hazardous wastes,
hazardous or toxic substances, polychlorinated biphenyl or related or similar materials,
6
asbestos or any material containing asbestos, or any other substance or material as may
be defined as hazardous or toxic substance by any environmental law, ordinance, rule or
regulation of any governmental authority, including without limitation, the
Comprehensive Response, Compensation, and Liability Act of 1980, as amended (42
USC Sections 9601, et seq.), the Hazardous Material transportation Act, as amended (49
U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act, as amended
(42 U.S.C. Sections 6901, et seq.), and the Federal Water Pollution Control Act (33
U.S.C. Sections 1251, et seq., and the Clean Air Act (42 U.S.c. Sections 7401 et seq.).
e. No Notice of Violation. Neither party has any knowledge of and
has not received notice of any pollution, health, safety, or environmental violation with
respect to the Property or any portion thereof which has not been cured.
f. No Conflict. The execution and delivery of this Agreement and
the documents required hereunder, and the consummation of the transactions
contemplated herein, will not: (1) conflict with or be in contravention of any provision of
any law, order, rule or regulation applicable to either party or the Property; (2) result in
the breach of any of the terms or provisions of, or constitute a default under, any
agreement or other instrument to which either party is a party, or by which it or any
portion of the Property may be bound or affected; (3) permit any party to terminate any
such agreement or instrument or to accelerate the maturity of any indebtedness or other
obligation of either party; or (4) result in any lien, charge or encumbrance of any nature
on the Property other than as permitted by this Contract.
g. True and Correct Information. To the best of the parties'
knowledge, no document, certificate or written statement furnished to the other party and
its attorney by either party in connection with this transaction contains or will contain any
untrue statement of a material fact or omits or will omit to state any material fact
necessary in order to make the statements contained therein not misleading.
Additionally, each party has disclosed all encumbrances and/or defects in title not shown
by the public records and all title documents of which either party has actual knowledge.
h. Use of Propertv Pending Closing. Between the date of this
Agreement and the closing date, either party:
(i) Shall maintain the Property in its current condition, normal
wear and tear excepted;
(ii) Shall not permit the Property to be used or operated in any
manner that would be in violation of any local, state or federal law
or regulation.
i. No Other Contract. There are no other Agreement or agreements,
oral or written, which affect the Property, which will survive the closing, except as
disclosed in the title insurance policy as provided either party.
7
11. PROPERTY DISCLOSURE AND INSPECTION. On or before Property
Disclosure Deadline (S3I), both parties agree to provide to the other party with a written
disclosure of adverse matters regarding the Property completed by the party to the best of that
party's current actual knowledge.
a. Inspection Objection Deadline. Both parties shall have the right to have
inspection(s) of the physical condition of the Property, at the party's expense. If the physical
condition of the Property is unsatisfactory in either party's subjective discretion, that party shall,
on or before Inspection Objection Deadline (S3J):
(I) notify the other party in writing that this Agreement is terminated, or
(2) provide the other party with a written description of any unsatisfactory
physical condition of the Property which the party requires the other party to
correct (Notice to Correct).
If written Notice to Correct is not received by a party on or before Inspection Objection
Deadline (S3J), the physical condition of the Property shall be deemed to be satisfactory.
b. Resolution Deadline. If a Notice to Correct is received by either party and if the
parties have agreed in writing to a settlement thereof on or before Resolution Deadline (S3K),
this Agreement shall terminate one calendar day following Resolution Deadline (S3K), unless
before such termination either party receives from the other party's written withdrawal of the
Notice to Correct.
12. CLOSING. The parties hereto agree that closing shall be scheduled no later than
Closing Date (S3M), provided, however, that prior to the Closing Date the parties may mutually
agree to an earlier date. The hour and location of Closing shall be mutually agreed to by the
parties.
13. DELIVERY OF TITLE AND EASEMENT. Subject to tender or payment on
Closing as required herein and compliance with the other terms and provisions hereof, both
parties shall execute and deliver good and sufficient lease agreements at Closing leasing the
Property to the other party free and clear of all taxes except for pro-rata share of taxes for the
year of closing; and free and clear of all liens for special improvements installed as of the date of
closing, whether assessed or not; and free and clear of all liens and encumbrances except those
disclosed by the title commitment which do not, in either party's reasonable discretion, render
title unmerchantable. Within a reasonable period of time not to exceed ninety (90) days, each
party agrees to pay full costs and premiums for, and deliver to the other party, fully executed title
insurance policies consistent with the title insurance commitment referenced above.
14. PRORATION. Real estate taxes and assessments of the year of closing (if
applicable) shall be prorated as of the date of closing, based upon the current year's levy and
assessment, and if not available, based upon the previous year's levy and assessment. Rents, if
any, shall be prorated based on rents actually received as of the date of closing. Each party shall
assign all leases to the other party and the other party shall assume such leases. Water, sewer
charges, and other utility charges shall be prorated as of the date of closing. All proration made
pursuant to the provisions of this section shall be final.
8
15. CLOSING COSTS, DOCUMENTS AND SERVICES.
a. The parties hereto shall pay their respective closing costs at closing,
except as otherwise provided herein.
b. The parties hereto shall SIgn and complete all customary or required
documents at or before closing.
c. Fees for real estate closing and settlement services shall not exceed
$500.00 and shall be shared equally at closing by the parties hereto.
d. Each party, at its sole expense, shall deliver to the other party a current
certificate of taxes due covering the Property and a statement of personal property taxes due,
both prepared by the Pitkin County Treasurer.
16. POSSESSION. Possession of the Property shall be delivered to the party on
Possession Deadline Date (~3N), and Possession Deadline Time (~30). If either party, after
closing, fails to deliver possession on the date herein specified, the other party shall be subject to
eviction and shall be additionally liable for payment of $500.00 per day as liquidated damages
from the date of agreed possession until possession is delivered.
17. NOT ASSIGNABLE. This Agreement shall not be assignable by either party
without the other party's prior written consent.
18. CONDITION OF AND DAMAGE TO PROPERTY. Except as otherwise
provided in this Agreement, the Parcels shall be delivered in the condition as of the date of this
Contract, ordinary wear and tear excepted.
19. TIME OF ESSENCE/DEFAULT/REMEDIES. Time is of the essence hereof. If
any note or check received or any of the payments due hereunder is not paid, honored or
tendered when due, or if any other obligation hereunder is not performed within the time frames
specified herein, there shall be the following remedies:
a. IF EITHER PARTY IS IN DEFAULT, then the other party may elect to
treat this Agreement as canceled, in which case all payments and things of value paid hereunder
shall be forfeited and retained on behalf of the parties, and the parties may recover such damages
as may be proper, or either party may elect to treat this Agreement as being in full force and
effect, whereupon the other party shall have the right to an action for specific performance or
damages, or both.
b. Anything to the contrary herein notwithstanding, in the event of any
litigation arising out of this Contract, the court may award to the prevailing party its reasonable
costs and expenses, including attorneys and expert witness fees.
20. SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES.
The covenants, representations, warranties and indemnities made by the parties to this Contract,
and the obligations and agreements to be performed or complied with by the respective parties
9
hereunder on or before the closing date, shall survive the closing, but shall terminate and be of
no further force and effect on the third anniversary of the date of closing.
21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto, and supersedes all prior and contemporaneous agreements,
representations and understandings of the parties regarding the subject matter of this Contract.
No supplement, modification or amendment of the Agreement shall be binding unless executed
in writing by the parties hereto.
22. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
23. BINDING EFFECT. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successor and assigns.
24. RECOMMENDATION OF LEGAL COUNSEL. By signing this document, the
parties hereto acknowledge the advisability of obtaining the advice of independent legal
regarding examination of title documents and the terms of this Agreement.
25. GOVERNING LAW. This Agreement shall be governed by and be construed in
accordance with the laws of the State of Colorado and the parties hereto hereby consent to the
exclusive jurisdiction of the Colorado state courts in the event of any controversy or suit arising
hereunder.
26. SEVERABILITY. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of
this Agreement shall remain in full force and effect and shall in no way be affected, impaired or
invalidated.
27. TERMINATION. In the event this Agreement is terminated for any reason,
pursuant to the terms hereof, all money payments, with any accrued interest, and things of value
paid hereunder shall be returned forthwith to the other party.
28. NOTICES. All notices and other communications tendered in connection with
this Agreement shall be in writing, and shall be deemed to have been duly given when delivered
in person or by telefax, or on the fourth day after mailing, if mailed registered or certified mail,
postage prepaid and properly addressed as follows:
To City:
Office of the City Manager
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
With a copy to the City Attorney at the same address.
10
To ACES:
Aspen Center for Environmental Studies
100 Puppy Smith Street
Aspen, Colorado 81611
Attention: Tom Cardamone, Executive Director
29, FACSIMILE TRANSMISSIONS. It is mutually agreed upon by all the parties to
this Agreement that, if necessary, facsimile communication shall be an acceptable and binding
form of communication. An original shall be provided to the other party(ies) at closing with
original signatures.
30. ADDITIONAL PROVISIONS.
a) Both parties agree and acknowledge that Colorado Revised Statute Section 39-22-
604.5 provides that in the case of any conveyance of a Colorado real property interest, the person
or party providing closing and settlement services shall be required to withhold an amount equal
to 2% of the sales price or the net proceeds resulting from such conveyance, whichever is less,
when the transferor is a non-resident of the State of Colorado. Each party shall be obligated to
either comply with the withholding requirements of CRS 39-22-604.5 or provide an affidavit in
form and content satisfactory to the person or party closing and settlement services certifies that
both parties are not subject to the withholding requirements.
b) Each party hereby warrants that it is not subject to withholding as defined under
Internal Revenue Code Section 897 (Foreign Person Transferor) and will execute an affidavit to
that effect prior to closing.
CITY OF ASPEN:
By:
~er!if4..-e/
g -7-06
Date
ACES:
c;;:; A'~
Title: '1);1f'€-<., D/L--
7- 3/ .0Co
Date
JPW. saved: 5/26/2006-4851-G:\john\word\agr\aces-lease-agr5-26-06. DOC
II
EXHIBIT "A"
Legal Description to the "Puppy Smith Parcel"
City of Aspen, Puppy Smith Property, Lots 1,2 and 3, Block 4, Lakeview Addition to the City
and Townsite of Aspen, City of Aspen, County of Pitkin, State of Colorado.
12
EXHIBIT "B"
Legal Description to the "ACES Parking Lot Parcel"
A parcel ofland situated in the SEI/4 of Section 7, Township 10 South, Range 84 West of the
6th P.M., City of Aspen, County of Pitkin, State of Colorado; said parcel being more particularly
described as follows:
A parcel ofland commencing at the west 114 of said section 7; thence S20 deg 58' 10"E a
distance of 941.29 feet to a point on the northerly boundary of that parcel ofland described in
reception number 386966 of the Pitkin County Clerk and Recorder's Office, the point of
beginning; thence sn deg 06' 23"E along said northerly boundary a distance of 125.61 feet;
thence leaving said northerly boundary S42 deg 57' 37" W a distance of 116.0 feet; thence N60
deg 20' 51" W a distance of92.91 feet; thence N29 deg 09' 21 "E a distance of76.67 feet, to the
point of beginning; said parcel containing 9,867 square feet more or less.
13
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EXHIBIT D
LEASE AGREEMENT
Puppy Smith Parcel
THIS LEASE AGREEMENT (this "Lease") is made and entered into on ,
2006, by and between the City of Aspen ("City") and the Aspen Center for Environmental
Studies, a Colorado not-for-profit corporation ("ACES"),
WITNESSETH:
WHEREAS, the City owns a parcel ofIand commonly known as the Puppy Smith parcel
(the "Puppy Smith Parcel") as more fully described in Exhibit "A" appended hereto and by this
reference made a part hereof; and
WHEREAS, the parties hereto have entered into that ceI:1;ain Agreement for Long Term
Leases dated , 2006, whereby the City agreed to lease to ACES the Puppy Smith
Parcel; and
NOW, THEREFORE, in consideration of the covenants as contained herein, the City and
ACES agree as follows:
ARTICLE I
GRANT AND TElLl\1
1.1 Lease Grant. In consideration of the recitals and the mutual covenants herein, City
grants to ACES a lease of the premises ("Premises"), more particularly described and
incorporated herein as Exhibit "A", and subject to utility and other easements in place and of
record or as reasonably required to service the Premises and subject to all encumbrances of
record.
ACES hereby expressly acknowledges that it will carefully examine the Premises prior to
occupancy. ACES will notify City if the condition of the Premises is satisfactory for all
purposes and intended uses hereunder, and if ACES, subject to Section 4.1 below, accepts the
same in its then current state and condition. If accepted, ACES will accept the Premises "AS
IS," without reliance of any kind on any representations of City with respect thereto all of which
are hereby disclaimed by City.
\.2 Base Term, This Lease shall commence at 12:01 a.m. on
2006, ("Commencement Date") and continue for a period of Forty (40) years, unless earlier
terminated under the provisions hereof,
1.3 Condemnation bv Public Authoritv. If during the Term of this Lease, or any
Renewal Term, the whole or part of the Premises, or such portion as will make the Premises
unusable for the purpose leased, or the leasehold interest, be condemned by public authority
including City, for public use, then this Lease 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,
ARTICLE II
RENT
2.1 Rent.
a. ACES agrees to pay City a fixed annual rent for each year of the Term the amount
of$lO.OO (ten dollars). City acknowledges that rent for the Term has been paid in advance of the
, Commencement Date.
ARTICLE 1lI
POSSESSION AND USE
3.1 Uses, ACES shall have the right to use the Premises for any lawful purpose
consistent with the aforementioned Agreement for Long Term Leases,
3.2 Pavrnentof Taxes. In the event any taxes are levied and assess.ed upon the
Premises or upon the improvements, fixtures or personal property of ACES during the term of
ACES's occupancy of the Premises, or arising therefrom, or upon the leasehold or possessory
interests as created through this Lease, ACES shall be solely responsible to satisfy and pay all
such taxes in a timely fashion, ACES shall not allow any liens for taxes or assessments to exist
with respect to the Premises, except that ACES may permit such taxes or assessments to remain
unpaid while pursuing any good faith contest or appeal of same
3.3 Compliance With Laws, ACES shall during the entire term of this Lease
materially comply with, observe and perform all requirements of law and ordinances, and shall
maintain all required licenses applicable to the Premises or the use thereof, whether now or
hereafter made by any governrnental authority, and shall indemnify the City against all losses
suffered by reason of any suits, actions, claims or damages by whomsoever brought or made, by
reason, of the non-compliance, non-observance or nonperformance by ACES of said laws,
ordinances, regulations, orders or required licenses or this covenant.
3.4 Local Laws. ACES shall have the sole responsibility to obtain all local
government regulatory permits or approvals for the occupancy and use of the Premises under this
Lease.
3.5 Restrictions On Use.
a. Nuisance. ACES shall not use or permit ,the use of the Premises in any
manner that will create a nuisance or disturb other occupants of the building or properties
adj acent thereto.
b, Hazardous Materials. ACES covenants and agrees not to suffer, permit,
introduce" or maintain any substances or materials which are considered, at any time
during the term of this lease or any renewal, to be hazardous or toxic under any federal,
state or local laws, rules, or regulations. ACES shall indemnify, defend and hold City
harmless against any and all loss, cost, or damages of any nature whatsoever (including
without limitation costs and attorney and professional fees) arising out of the introduction
of any hazardous materials on or to the building or the Premises by or on behalf of
ACES, its contractors, agents, or employees, including, without limitation, the cost of
removing such hazardous materials.
c. Trash. All garbage and refuse shall be kept in closed containers which do
not emit odors as specified by City and shall be placed outside of the Premises, prepared
2
for collection in the manner and at the times and places specified by City.
d. Clean Condition, The Premises and every part thereof shall be kept by
ACES in a reasonably neat, orderly and clean condition, ACES shall take no action which
would jeopardize City's title to the Premises or jeopardize the value of the Premises or the
building,
e. Notice, In the event ACES is in violation of any of the foregoing
restrictions on use or is in violation or breach of any other provision of this Article III,
City shall provide ACES with written notice to ACES specifying the nature of such of
violation or breach, ACES shall have thirty (30) days following such written notice to
cure, adjust or correct the violation or breach. If ACES fails to cure the breach or default
within such time period, City shall have the right to assess a penalty of $5QO,OO plus all
costs of correcting such violation against ACES as Additional Rent to be paid the first of
the month following notice of such assessment. City shall not be liable to ACES for any
claim of damages for correcting such violation,
ARTICLE IV
CONSTRUCTION-AL TERATIONS-REP AIRS
4.1 Alteration at ACES's Expense. Following the construction by the City of the
gravel parking lot and attendant landscaping, all as more fully set forth in the aforementioned
Agreement for Long Term Leases, and the acceptance by ACES of said construction and
landscaping to its reasonable satisfaction, ACES agrees to accept the property in its then present
condition, as is, without calling upon City to make any other expenditures or to perform any
work for the preparation of the Premises for ACES's use,
4.2 Mechanics Lien: Notice, ACES shall keep the Premises and any buildings
constructed or located on the Premises free and clear of all mechanics, material men's and other
liens on account of work done for ACES. ACES shall indemnify City against liability, loss,
damage, costs or expenses, including attorney fees, on account 'of claims of lien of laborers or
material men or others for work performed for or materials or supplies f=ished to ACES. If
ACES shall desire to contest any claim or lien, ACES shall furnish to City security of a cash
deposit with City of 20% of the amount of the claim, plus estimated costs and interest,
conditioned on the discharge of the lien or a corporate surety bond meeting requirements of the
applicable statutes sufficient to discharge any lien, If a final judgment establishing the validity of
a lien is entered, ACES shall pay and satisfy the same at once, If ACES shall be in default in
paying any charge for which a mechanic's lien claim or suit to foreclose the lien has been
recorded or filed qnd shall not have given City security as aforesaid, City may (but without being
required to do so) pay said lien or claim and any costs, and the amount so paid, together with
reasonable attorney fees and costs and expenses incurred by City in connection therewith shall be
immediately due and owing from ACES to City with interest at the rate of 5% per annum from
the dates of City' payments. Should any claims of lien be filed against the Premises or the
building or any action affecting the title thereto be commenced, ACES shall give City written
notice thereof as soon as possible. During any such work, City shall have the right to post and
keep posted upon the premises notices that City' interest in the Premises should not be subject to
any lien for such work done. City hereby designates ACES as its agent for the sole purpose of
posting in a conspicuous place upon the Premises a notice containing the following language
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which ACES shall be required to post prior to commencement of,any work:
Notice. The interest of City of these premises: the City of Aspen and the building and
lands upon which it is situated shall not be subject to any lien for work dO,ne or materials or
equipment supplied by any contractor or other person for ACES's improvements pursuant to this
Notice and 9 38-22 105(2), c.R.S,
4.3 ACES to Compensate Citv for Insurance Increase. ACES shall pay upon demand
as additional rent hereunder any increase in City' insurance premium, which results solely and
directly on account of City' endorsements covering the risk during work or upon completion of
such alterations or improvements or as a result of subsequent use of the premises by ACES.
4.4 ACES's Maintenance and Repair Obligation. ACES agrees, during the term
hereof, and at ACES's expense, to maintain the Premises in good condition, to promptly and
diligently repair any damage to other premises in the building attributable to the negligence or
the act or omission of ACES, or ACES's employees, guests, or invitees, to maintain and
promptly and diligently repair the Premises to meet requirements of any governmental authority
having jurisdiction thereof, and maintain in good condition and promptly and diligently repair
any damage to (or replace if necessary in the circumstances) the Premises. ACES shall also be
responsible for maintenance of grounds and landscaping,
ARTICLE V
INSURANCE
6.1 Liability and Comprehensive Insurance. ACES shall maintain comprehensive all
risks casualty, public liability and property damage insurance (at replacement values), with
responsible insurance companies licensed to conduct business in Colorado and acceptable to City
which will insure City and ACES against liability for bodily injury, loss of life, or other injury,
with limitations in amounts deemed reasonable by City, and shall name City and, at City' option,
City' mortgagee as an' additional' insured with respect to each such policy. 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, 9 24-
10-101, et. seq., as amended. At present such amounts shall be as follows:
$150,000.00 for any injury to one person in any single occurrence;
$600,000,00 for any injury to two or more persons in any single
occurrence.
In no event shall such insurance amounts fall below those maximum liability limits as set forth at
C.R.S, 9 24-10-11'4, as amended.
Copies of such policies shall be promptly delivered to the City upon issuance thereof;
and, as often as any such policy or policies shall expire or terminate, renewal or additional
policies shall be procured and maintained by ACES and copies promptly furnished to City.
ACES shall name City as co.insured or additional insured on all insurance policies and such
policies shall provide for a ten-day advance written notice to City in the event of cancellation or
material change in coverage or 20 days' advance notice of cancellation for nonpayment. To the
maximum extent permitted by the insurance policies owned by City and ACES, the parties
hereto for their mutual benefit waive any and all rights of subrogation which might otherwise
4
exist. If ACES fails to comply with this paragraph, City shall have the right to obtain the said
insurance and pay the premiums therefor; and, in such event, the entire amount of such premium
shall be immediately paid by ACES to City upon demand and as Additional Rent hereunder.
6,2 Indemnification. To the full extent permitted by law, ACES agrees to indemnify
City against all demands, claims, causes of action, and any expenses (including attorney fees)
incurred in resisting such claims, for injury to person, loss of life or damage to property
occurring during the term of this lease or any extension thereof and (a) occurring on the Premises
and arising out of ACES's use and occupancy thereof or (b) occurring outside the Premises if
caused by the act, omission or neglect of ACES or the employees, agents, contractors, licensees,
guests, invites, or sub-lessees thereof.
6.3 Fire Insurance. ACES shall insure any building(s) that are constructed or located
on the Premises against fire and other damage to the building for the leased space. During the
term hereof and any extension thereof, ACES shall, at its expense, maintain in full force and
effect theft and malicious mischief insurance coverage with standard extended coverage
endorsement to the extent of replacement cost value naming City as an additional insured party.
ACES shall provide copies of such policy and ,any renewals and extensions thereof to City
promptly upon issuance. As long as this lease is in effect, the proceeds from any such policy
shall be used for the repair or replacement of the trade fixtures and inventory so insured.
6.4 Waiver of Subrogation, Anything in this lease to the contrary notwithstanding,
neither City nor ACES shall be liable to the other for any business interruption or any Joss or
damage to property occurring on the Premises or the building or in any manner growing out of or
connected with ACES's use and occupation of the building or the condition thereof caused by the
negligence or fault of City or ACES or of their respective agents, employees, sub-lessees,
licensees, or assignees to the extent that such business interruption or loss or damage to property
is coverable by a standard all-risk or special form policy (including, at a minimum, fire and
extended coverage insurance) or a business interruption policy (regardless of whether such
insurance is carried or not) or for which such party is otherwise reimbursed; and City and ACES
each waive all right of recovery against the other, its agents, employees, sub-lessees, licensees,
and assignees for any such loss or for damage to the property of the waiving party. Each of the
parties shall notify its respective insurance carrier that the foregoing waiver is contained in this
lease and shall require such carrier to include an appropriate waiver of subrogation provision in
its policies,
,ARTICLE. VI
DEFAULTS
8.1 ACES's Default. Each of the following events shall be deemed an "event of
default" or a "default" hereunder if not cured within the time allowed by Paragraph 8.2 hereof,
a. Other Obligations, Any failure of ACES to perform any other obligation
hereunder,
b, Seizure, Seizure of this lease or the Premises by execution or other process
of Jaw directed against ACES and not discharged within thirty (30) days,
5
c. Abandonment or Failure to Occupv. ACES shall vacate (except for
temporary closures expressly permitted under the Lease) or abandon the Premises,
d, Assignment or Transfer, This Lease shall be transferreato or shall pass to
or devolve upon any other person, entity, or party except as expressly consented to by
City in the manner herein provided.
e. Failure to pav Debts, ACES generally fails to pay its debts as they become
due, and such failure continues after notice and a reasonable opportunity to cure,
f. Illegal Activitv. ACES shall not at any time, knowingly suffer or
knowingly permit any illegal activity on or use of the Premises by ACES, its sub-lessees,
licensees, agents or employees.
8,2 Right to Cure. ACES shall have a period of ten (10) business days after written
notice is sent from City to cure any failure to pay any Rent or monetary amount due under the
lease. ACES shall have a period of thirty (30) business days after written notice of the'failure to
perform or observe any other (non-monetary) term, condition, covenant or agreement of ACES
under this lease to cure such failure or, if the failure cannot by exercise of reasonable diligence
be remedied within thirty (30) business days after written notice of the failure is delivered to
ACES, ACES fails to commence efforts to cure the failure within thirty (30) business days after
written notice of the failure is delivered to ACES, or if ACES commences its efforts to cure but
thereafter fails to diligently pursue all action reasonably necessary to cure the failure, or if ACES
fails actually to cure the failure in all respects within 45 days following delivery of written notice
of the failure to ACES.
8.3 Citv' Rights. Should ACES at any time be in default in the performance of any of
its covenants herein and fail to cure such default within the time periods allowed by Paragraph
8.2 above, ACES's right to possession of the Premises shall automatically terminate, Upon the
termination of ACES's possessory rights in the leased Premises pursuant to the preceding
sentence, the ACES shall peacefully surrender the Premises to the City. City, at its option, upon
the occurrence of any event of default and at any time thereafter while such event of default
continues, shall have the right to declare by written notice to ACES the term of this lease ended
on the date of such notice or any later date specified therein, to take possession of the Premises,
to exclude ACES from the Premises, and to remove all persons from the Premises, After City
declare the term ended as provided herein, ACES shall have no further claim or right to
possession of the Premises,
8.6 Property Left on Premises. Any property of ACES or of anyone claiming under,
by or through ACF:S which is left on the Premises more than ninety (90) days after expiration of ,
the term of the Lease or termination of possessory rights shall be conclusively deemed abandoned; and City may keep, use, remove, store, sell, destroy, discard, or otherwise deal with
it in City' absolute discretion without liability of any sort to ACES or anyone claiming under, by
or through ACES,
6
ARTICLE VII
ASSIGNMENT OR SUBLETTING
9.1 City' Consent to Assignment Required, ACES shall not transfer, assign, sublet,
mortgage, encumber, or hypothecate this lease or ACES's interest in and to the Premises, or any
part thereof without first procuring the written consent of City, Any assignment or sublet
applicant shall be equally or more qualified financially to perform the obligations of this lease.
Any attempted transfer, without required consent, shall be void and shall constitute a default by
ACES under this lease. In the event of an approved assignment, such transferee, assignee, sub-
lessees or mortgagee shall agree in writing for the benefit of the City to assume, to be bound by
and to perform ACES's obligations under the temis, covenants and conditions of this lease upon
any such assignment. ACES shall remain liable to City as a principal and not merely as a surety
for the full performance of the obligations of the ACES hereunder. The granting of -a
management contract, concession or license to any person, firm or corporation to operate in or
use in any manner, any portion of the Premises shall be deemed a subletting. Prohibition on
assignment and subletting of this lease, except as specifically excepted herein, includes a
prohibition on any assignment which would otherwise occur by operation of law, merger,
consolidation, reorganization, transfer or other change of ACES's capital structure or ownership,
in whole or in part, and to an assignment to or by a receiver or trustee in any federal or state
bankruptcy, insolvency, or similar proceeding
9,2 No Waiver. Consent by ACES to anyone assignment or sublease shall not
constitute a waiver with respect to any further assignments or subleases, City, in approving any
assignment or sublease, shall be entitle to consider among other things the financial capability of
the assignee or sub-lessees and compatibility of the proposed use with other uses in the building,
ARTICLE VIII
GENERAL PROVISIONS
8.1 Subdivision. City reserves the right, without the cOnsent of the ACES, to execute
and record such declarations, restrictive covenants, maps or other documents or amendments or
supplements thereto for the purpose of subdividing or re-subdividing the Premises into separate
units and common elements pursuant to the Colorado Common Interest Ownership Act, provided
that the City' right as declarant and owner thereof shall be subject and subordinate to the
possessory and other rights of the ACES to the Premises under this lease.
8.2 Non-Waiver. Failure of City to require strict performance of any covenant or
condition shall not be deemed a waiver of such covenant or condition as to that or any
subsequent failure. One or more waivers of any breach of any covenant or condition by City
shall not be construed as a waiver of a subsequent breach of the same or any other covenant or
condition, and the consent or approval by City to or of any act by ACES requiring City' consent
or approval shall not be deemed to waive or render unnecessary City' consent or approval to or
of any subsequent similar or dissimilar act by ACES. No waiver of any provision' of this lease
shall be effective unless it is in writing and signed by City.
8.3 Estoppel Certificates. ACES agrees at any time and from time to'time, upon ten
7
days' prior request by City, to execute, acknowledge, and deliver to City a statement in writing
certifying that this lease is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating the modifications),
and the dates to which the Rent and other charges have been paid in advance, if any, and
confIrming ACES's acceptance of the Premises, the commencement of the lease term, and the
Rent provided under the lease, and any ether affirmations or certifications reasonably requested
by City with the intent that the statement delivered, may be relied upon by any prospective
purchaser, mortgagee, or assignee of any mortgagee of the building or the Premises.
8,4 Recording, ACES shall not record or permit the recordation of this Lease or any
assignment, sublease, license, grant of concession, mortgage or any other document evidencing
the transfer or hypothecation of all or any part of this Lease or ACES's interest in the Premises
without in each instance having received the prior written consent of City. City may file or
record this Lease or any of the documents related to this Lease or a summary of some or all of
the provisions hereof at any time without ACES's consent.
8,5 Notices. Wherever in this lease it shall be required or permitted that notice or
demand be given or served by either party to this lease on the other, such notice or demand shall
be given or served in writing and either personally served at or forwarded by certified mail to the
following addresses and shall be deemed effective upon personal service or deposit as certified
mail.
To City:
Aspen City Manager
130 South Galena S!reet
Aspen, Colorado 81611
With a Copy To:
Aspen City Attorney
130 South Galena Street
Aspen, Colorado 81611
To ACES:
ACES Executive Director
100 Puppy Smith Street
Aspen, CO 81611
With a Copy To:
Tom Todd, Esq,
Holland & Hart LLC
600 East Main Street
Aspen, CO 81611
Either party may change such address from time to time by written notice given as herein
above provided.
8.6 Additional. In addition to the other remedies in this lease provided, City shall be
entitled to the restraint by injunction of the violation or attempted or threatened violation of any
of the covenants, conditions or provisions of this lease,
8
8.7 Holding Over. Any holding over after the expiration of the term hereof shall be
construed to be a tenancy from month to month except that City shall have the right to terminate
such tenancy at the end of any calendar month upon ten days' advance written notice.
8.8 Covenant of Ouiet Enioyment. So long as the ACES is notin default or breach
hereunder; the City covenants that the ACES shall peaceably and quietly occupy and enjoy the
leased Premises subject to the terms hereof. The City warrants and agrees to defend the title to
the Premises and further warrants that it has full authority to execute this lease,
8.9 Severability, The terms, conditions, covenants, and provisions of this lease shall
be deemed to be severable. If any provision contained herein shall be determined to be invalid by
a court of competent jurisdiction or by operation of any applicable law, it shall not affect the
validity of any other 'clause or provision herein,
8.10 Entrv-bv Citv. City and its authorized agents, employees, attorneys and
contractors shall be entitled, at all posted business hours (and in emergencies at all times), to
enter the Premises to inspect the same or determine compliance herewith and shall have all such
rights as may enable City promptly, efficiently and economically to carry on any work or repair,
reconstruction, or restoration, to which City is obligated hereunder. ACES waives any claims for
damages for business interference, inconvenience or loss of quiet enjoyment or other loss
occasioned by such entry and repairs unless such repairs were occasioned by the negligence or
intentional acts of City. City and its authorized representatives shall have the right to enter the
Premises at times other than ACES's business hours to exhibit the Premises to prospective
purchasers. City agrees to provide ACES with reasonable prior notice, whenever it deems it
necessary to enter.
8.11 Binding Effect. This lease and all agreements herein contained shall bind the
parties hereto. Each term and each provision of this le~e shall be construed as and shall have the
same force and effect as though made in the form of a covenant. The parties covenant that the
signatory to this lease has the authority to sign on behalf of the principal.
8.12 Counterparts. This lease may be executed in counterparts and with facsimile
signatures which taken together shall be one document. The parties shall deliver original signed
copies within seven days of facsimile transmission of their signatures,
8.13 Governing Law. This lease shall be construed in accordance with the laws of the
State of Colorado. The parties agree to submit to the personal Jurisdiction of the State of
Colorado in connection with any action or proceeding relating to this lease or the Premises. The
parties expressly acknowledge and agree that venue of any action shall be in Pitkin County,
Colorado,
8.14 Time of Essence. Time is of the essence for all obligations in this lease,
8,15 ACES's Authoritv. ACES shall not be construed as or have any authority to act as
the agent of City concerning the Premises. ACES shall have no authority to surrender, waive,
compromise, alter or convey any of City' rights in the Premises,
8.16 Headings. The headings and captions contained in this lease are inserted for
convenience of reference only and are not to be deemed part of, or to be used as an aid in
construing, this lease.
9
b',,'~'" .',<":."',':, i;See'".;'';,;','"-;.;,
8.17 Survival. AIl of the representations, warranties, and covenants in this lease shall
survive the expiration or termination of this lease.
8,18 Entire agreement. This lease covers in full each and.every agreement of every
kind and nature whatsoever between the parties hereto concerning the Premises, and all
preliminary negotiations and agreements of whatever kind or nature are merged herein, City has
made no representations or promises whatsoever with respect to the Premises except those
contained herein and the aforementioned Agreement for Long Term Leases; and no other person,
firm or corporation has, at any time, had any authority from City to make any representations or
promises on behalf of City; and ACES expressly agrees that, if any such representations or
promises have been made by others, ACES hereby waives all right to rely thereon. No verbal
agreement or implied covenant shall be held to vary the provisions hereof, any statute, law or
custom to the contrary notwithstanding.
8,19 Waiver of Jury Trial. City and ACES waive any right to a trial by a jury of any
dispute related to this lease,
8.20 Force Maieure, In the event that the City or the, ACES shall be delayed or
hindered or prevented from the performance of any act required hereunder, by reason of
governmental restrictions, scarcity of labor or materials, strikes, or for reasons beyond such
party's control, the performance of such act shall be excused for the period of delay; and the
period for the performance of any such act shall be extended for the period necessary to complete
performance after the end of the period of such delay.
8.21 Amendment or Modification. Except as otherwise provided herein, this
agreement and all of these terms and conditions may not be amended or modified absent a
written agreement duly executed by the parties,
IN WITNESS WHEREOF, the City and ACES have duly executed this lease on the day
arid year first above written,
[Signatures on following page]'
10
CITY OF ASPEN:
State ofColbrado
)
)
)
ss,
County of Pitkin
By:
Title:
day of
The foregoing instrument was acknowledged before me this
, by the above named,
ACES
State of Colorado )
) ss,
County of Pitkin ' )
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires:
Notary Public
By:
Title:
day of
The foregoing instrument was acknowledged before me this
, by the above named,
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires:
,Notary Public
11
Exhibits to be attached
Exhibit A - Legal Description of Puppy Smith Parcel.
JPW- saved: 5/31/2006-4930..a:\john\word\agr\ACES-Puppy Smith Lease,DOC
12
EXIDBIT E
LEASE AGREEMENT
ACES Parking Lot Parcel
THIS LEASE AGREEMENT (this "Lease") is made and entered into on
2006, by and between the City of Aspen ("City") and the Aspen Center for Environmental
Studies, a Colorado not-for-profit corporation ("ACES").
WITNESSETH:
WHEREAS, ACES owns a parcel of land commonly known as the ACES Parking Lot
parcel as more fully described in Exhibit "A" appended hereto and by this reference made a part
hereof; and
WHEREAS, the parties hereto have entered into that certain Agreement for Long Term
Leases dated , 2006, whereby ACES agreed to lease to City the Puppy Smith
Parcel; and
NOW, THEREFORE, in consideration of the covenants as contained herein, ACES and
City agree as follows:
ARTICLE I
GRANT AND TERM
1,1 Lease Grant. In consideration of the recitals and the mutual covenants herein,
ACES grants to City a lease of the premises ("Premises"), more particularly described and
incorporated herein as Exhibit "A", and subject to utility and other easements in place and of
record or as reasonably required to service the Premises and subject to all encumbrances of
record.
City hereby expressly acknowledges that it will carefully examine the Premises prior to
occupancy. City will notify ACES if the condition of the Premises is satisfactory for all
purposes and intended uses hereunder, and if City, subject to Section 4.1 below, accepts the same
in its then current state and condition. If accepted, City will accept the Premises "AS IS,"
without reliance of any kind on any representations of ACES with respect thereto all of which
are hereby disPlaimedby ACES,
1.2 Base Term, This Lease shall commence at 12:01 a,m. on
2006, ("Commencement Date") and continue for a period of Forty (40) years, unless earlier
terminated under the provisions hereof.
1.3 Condemnation bv Public Authoritv. If during the Term of this Lease, or any
Renewal Term, the whole or part of the Premises, or such portion as will make the Premises
unusable for the purpose leased, or the leasehold interest, be condemned by public authority
including City, for public use, then this Lease 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 e~ent occurs first.
ARTICLE II
RENT
2.1 Rent.
a. City agrees to pay ACES a fixed annual rent for each year of the Term the amount
of $10,00 (ten dollars). ACES acknowledges that rent for the Term has been paid in advance of
the Commencement Date.
ARTICLE III
POSSESSION AND USE
3.1 Uses. City shall have the right to use the Premises .for any lawful purpose
consistent with the aforementioned Agreement for Long Term Leases.
3.2 Payment of Taxes. In the event any taxes are levied and assessed upon the
Premises or upon the improvements, fixtures or personal property of City during the term of City
occupancy of the Premises, or arising therefrom, or upon the leasehold or possessory interests as
created through this Lease, City shall be solely responsible to satisfy and pay all such taxes in a
timely fashion, City shall not allow any liens for taxes or assessments to exist with respect to the
Premises, except that City may permit such taxes or assessments to remain unpaid while
pursuing any good faith contest or appeal of same
3.3 Compliance With Laws. City shall during the entire term of this Lease materially
comply with, observe and perform all requirements of law and ordinances, and shall maintain all
required licenses applicable to the Premises or the use thereof, whether now or hereafter made by
any governmental authority, and shall indemnify the ACES against all losses suffered by reason
of any suits, actions, claims or damages by whomsoever brought or made, by reason, of the non-
compliance, non-observance or nonperformance by City of said laws, ordinances, regulations,
orders or required licenses or this covenant.
3.4 Local Laws. City shall have the sole responsibility to obtain all local government
regulatory permits or approvals for the oc,cupancy and use of the Premises under this Lease.
3.5 Restrictions On Use.
a. Nuisance. City shall not use or permit the use of the Premises in any
manner that will create a nuisance or disturb other occupants of the building or properties
adjacent thereto. '
b,' Hazardous Materials. City covenants and agrees not to suffer, permit,
introduce, or maintain any substances or materials which are considered, at any time
during the term of this lease or any renewal, to be hazardous or toxic under any federal,
state or local laws, rules, or regulations, City shall indemnify, defend and hold ACES
harmless against any and all loss, cost, or damages of any nature whatsoever (including
without limitation costs and attorney and professional fees) arising out of the introduction
of any hazardous materials on or to the building or the Premises by or on behalf of City,
its contractors, agents, or employees, including, without limitation, the cost of removing
such hazardous materials.
2
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c. ' Trash. All garbage and refuse shall be kept in closed containers which do
not emit odors as specified by ACES and shall be placed outside of the Premises,
prepared for collection in the manner and at the times and places specified by ACES.
d, Clean Condition, The Premises and every part thereof shall be kept by
City in a reasonably neat, orderly and clean condition. City shall take no action which
would jeopardize ACES's title to the Premises or jeopardize the value of the Premises or
the building.
e. Notice, In the event City is in violation of any of the foregoing restrictions
on use or is in violation or breach of any other provision of this Article III, ACES shall
provide City with written notice to City specifying the nature of such of violation or
breach, City shall have thirty (30) days following such written notice to cure, adjust or
correct the violation or breach. If City fails to cure the breach or default within such time
period, ACES shall have the right to assess a penalty of $500.00 plus all costs of
correcting such violation against City as Additional Rent to be paid the first of the month
following notice of such assessment. ACES shall not be liable to City for any claim of
damages for correcting such violation,
ARTICLE IV
CONSTRUCTION-ALTERA TIONS-REP AIRS
4.1 Alteration at City Expense, CITY agrees to accept the property in its present
condition, as is, without calling upon ACES to make any other expenditures or to perform any
work for the preparation of the Premises for City's use. '
4.2 Mechanics Lien: Notice. City shall keep the Premises and any buildings
constructed or located on the Premises free and clear of all mechanics, material men's and other
liens on account of work done for City. City shall indemnify ACES against liability, loss,
damage, costs or expenses, including attorney fees, on account of claims of lien ,of laborers or
material men or others for work performed for or materials or supplies furnished to City, If City
shall desire to contest arty claim or lien, City shall furnish to ACES security of a cash deposit
with ACES of 20% of the amount of the claim, plus estimated costs and interest, conditioned on
the discharge of the lien or a corporate surety bond meeting requirements of the applicable
statutes sufficient to discharge any lien. If a final judgment establishing the validity of a lien is
entered, City shall pay and satisfY the same at once. If City shall be in default in paying any
charge for which a mechanic's lien claim or suit to foreclose the lien has been recorded or filed
and shall not have given ACES security as aforesaid, ACES may (but without being required to
do so) pay said lien or claim and any costs, and the amount so paid, together with reasonable
attorney fees and costs and expenses incurred by ACES in connection therewith shall be
immediately due and owing from City to ACES with interest at the rate of 5% per annum from
the dates of ACES' payments. Should any claims of lien be filed against the Premises or the
building or any action affecting the title thereto be commenced, City shall give ACES written
notice thereof as soon as possible, During any such work, ACES shall have the right to post and
keep posted upon the premises notices that ACES' interest in the Premises should not be subject
to any lien for such work done. ACES hereby designates City as its agent for the sole purpose of
posting in a conspicuous place upon the Premises a notice containing the following language
which City shall be required to post prior to commencement of any work:
3
Notice, The interest of ACES of these premises: the ACES of Aspen and the building and
lands upon which it is situated shall not be subject to any lien for work done or materials or
equipment supplied by any contractor or other person for City's improvements pursuant to this
Notice and ~ 38-22 105(2), C,RS. '
4,3 Citv to Compensate ACES for Insurance Increase. City shall pay upon demand as
additional rent hereunder any increase in ACES' insurance premium, which results solely and
directly on account of ACES' endorsements covering the risk during work or upon completion of
such alterations or improvements or as a result of subsequent use of the premises by City,
4.4 City's Maintenance and Repair Obligation, City agrees, during the term hereof,
and at City's expense, to maintain the Premises in good condition, to promptly and diligently
repair any damage to other premises in the building attributable to the negligence or the act or
omission of City, or City's employees, guests, or invitees, to maintain and promptly and
diligently repair the Premises to meet requirements of any governmental authority having
jurisdiction thereof, and maintain in good condition and promptly and diligently repair any
damage to (or replace if necessary in the circumstances) the Premises. City shall also be
responsible for maintenance of grounds and landscaping.
ARTICLE V
INSURANCE
6.1 Liability and Comprehensive Insurance. City shall maintain comprehensive all
risks casualty, public liability and property damage insurance (at replacement values), with
responsible insurance companies licensed to conduct business in Colorado and acceptable to
ACES which will insUre ACES and City against liability for bodily injury, loss of life, or other
injury, with limitations in amounts deemed reasonable by ACES, and shall name ACES and, at
ACES's option, ACES's mortgagee as an additional insured with respect to each such policy.
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 eRS. ~ 24-10-101, et, seq., as amended, At present such amounts shall be as follows:
$150,000.00 for any injury to one person in any single occurrence;
$600,000,00 for any injury to two or more persons in any single
occurrence.
In no event shall such insurance amounts fall below those maximum liability limits as set forth at
eR.S, ~ 24-10-114, as amended.
Copies of 'such policies shall be promptly delivered to the ACES upon issuance thereof;
and, as often as any such policy or policies shall expire or terminate, renewal or additional
policies shall be procured and maintained by City and copies promptly furnished to ACES. City
shall name ACES as co-insured or additional insured on all insurance policies and such policies,
shall provide for a ten-day advance written notice to ACES in the event of cancellation or
material change in coverage or 20 days' advance notice of cancellation for nonpayment To the
maximum extent permitted by the insurance policies owned by ACES and City, the parties
hereto for their mutual benefit waive any and all rights of subrogation which might otherwise
exist. If City fails to comply with this paragraph, ACES shall have the right to obtain the said
insurance and pay the premiums therefor; and, in such event, the entire amount of such premium
4
shall be immediately paid by City to ACES upon demand and as Additional Rent hereunder,
6,2 Indemnification, To the full extent permitted by law, City agrees to indemnify
ACES against all demands, claims, causes of action, and any expenses (including attorney fees)
incurred in resisting such claims, for injury to person, loss of life or, damage to property
occurring during the term of this lease or any extension thereof and (a) occurring on the Premises
and arising out of City's use and occupancy thereof or (b) occurring outside the Premises if
caused by the act, omission or neglect of City or the employees, agents, contractors, licensees,
guests, invites, or sub-lessees thereof.
6.3 Fire Insurance. City shall insure any building(s) that are constructed or located on
the Premises against fire and other damage to the building for the leased space, During the term
hereof and any extension thereof, City shall, at its expense, maintain in full force and effect, theft
and malicious mischief insurance coverage with standard extended coverage endorsement to the
extent of replacement cost value naming ACES as an additional insured party. City shall provide
copies ofsuch policy and any renewals and extensions thereof to' ACES promptly upon issuance.
As long as this lease is in effect, the proceeds from any such policy shall be used for the repair or
replacement of the trade fixtures and inventory so insured,
6.4 Waiver of Subrogation. Anything in this lease to the contrary notwithstanding,
neither ACES nor City shall be liable to the other for any business interruption or any loss or
damage to property occurring on the Premises or the building or in any manner growing out of or
connected with City's use and occupation of the building or the condition thereof caused by the
negligence or fault of ACES or City or of their respective agents, employees, sub-lessees,
licensees, or assignees to the extent that such business interruption or loss or damage to property
is coverableby a standard all-risk or special form policy (including, at a minimum, fire and
extended coverage insurance) or a business interruption policy (regardless of whether such
insurance is carried or not) or for which such party is otherwise reimbursed; and ACES and City
each waive all right of recovery against the other, its agents, employees, sub-lessees, licensees,
and assignees for any such loss or for damage to the property of the waiving party. Each of the
parties shall notify its respective insurance carrier that the foregoing waiver is contained in this
lease and shall require such carrier to include an appropriate waiver of subrogation provision in
its policies. .
ARTICLE VI
DEFAULTS
8.1 City's Default. Each of the following events shall be deemed an "event of default"
or a "default" hereunder if not cured within the time allowed by Paragraph 8.2 hereof.
a, Other Obligations. Any failure of City to perform any other obligation
hereunder.
b, Seizure, Seizure of this lease or the Premises by execution or other process
oflaw directed against City and not discharged within thirty (30) days,
c. Abandonment or Failure to Occupv. City shall vacate (except for
temporary closures expressly permitted under the Lease) or abandon the Premises.
5
d. Assignment or Transfer. This Lease shall be transferred to or shall pass to
or devolve upon any other person, entity, or party except as expressly consented to by
ACES in the manner herein provided.
e. Failure to pay Debts. City generally fails to pay its debts as they become
due, and such failure continues after notice and a reasonable opportunity to cure.
f, Illegal Activitv. City shall not at any time, knowingly suffer or knowingly
permit any illegal activity on or use of the Premises by City, its sub-lessees, licensees,
agents or employees.
8.2 Right to Cure, City shall have a period of ten (.1 0) business days after written
notice is sent from ACES to cure any failure to pay any Rent or monetary amount due under the
lease. City shall have a period of thirty (30) business days after written notice of the failure to
perform or observe any other (non-monetary) term, condition, covenant or agreement of City
under this lease to cure such failure or, if the failure cannot by exercise of reasonable diligence
be remedied within thirty (30) business days after written notice of the failure is delivered to
City, City fails to commence efforts to cure the failure within thirty (30) business days after
written notice of the failure is delivered to City, or if City commences its efforts to cure but
thereafter fails to diligently pursue all action reasonably necessary to cure the failure, or if City
fails actually to cure the failure in all respects within 45 days following delivery of written notice
of the failure to City.
8.3 ACES's Rights, Should City at any time be in default in the performance of any of
its covenants herein and fail to cure such default within the time periods allowed by Paragraph
8.2 above, City's right to possession of the Premises shall automatically terminate. Upon the
termination of City's possessory rights in the leased Premises pursuant to the preceding sentence,
the City shall peacefully surrender the Premises to the ACES, ACES, at its option, upon the
occurrence of any event of default and at any time thereafter while such event of default
continues, shall have the right to declare by written notice to City the term of this lease ended on
the date of such notice or any later date specified therein, to take possession of the Premises, to
exclude City from the Premises, and to remove all persons from the Premises. After ACES
declare the term ended as provided herein, City shall have no further claim or right to possession
of the Premises,
8,6 Propertv Left on Premises. Any property of City or of anyone claiming under, by
or through City which is left on the Premises more than ninety (90) days after expiration of the
term of the Lease or termination of possessory rights shall be conclusively deemed abandoned;
and ACES may keep, use, remove, store, sell, destroy, discard, or otherwise deal with it in
ACES's absolute discretion without liability of any sort to City or anyone claiming under, by or
through City.
6
;,
ARTICLE VII
ASSIGNMENT OR SUBLETTING
9.1 ACES's Consent to Assignment Required, City shall not transfer, assign, sublet,
mortgage, encumber, or hypothecate this lease or City's interest in and to the Premises, or any
part thereof without first procuring the written consent of ACES. Any assignment or sublet
applicant shall be equally or more qualified financially to perform the obligations of this lease.
Any attempted transfer, without required consent, shall be void and shall constitute a default by
City under this lease. In the event of an approved assignment, such transferee; assignee, sub-
lessees or mortgagee shall agree in writing for the benefit of the ACES to assume, to be bound
by and to perform City's obligations under the terms, covenants and conditions of this lease upon
any such assignment, CITY shall remain liable to ACES as a principal and not merely as a surety
for the full performance of the obligations of the City hereunder. The granting of a management
contract, concession or license to any person, firm or corporatIon to operate in or use in any
manner, any portion of the Premises shall be deemed a subletting. Prohibition on assignment and
subletting of this lease, except as specifically excepted herein, includes a prohibition on any
assignment which would otherwise occur by operation of law, merger, consolidation,
reorganization, transfer or other change of City's capital structure or ownership, in whole or in
part, and to an assignment to or by a receiver or trustee in any federal or state bankruptcy,
insolvency, or similar proceeding
9.2 No Waiver. Consent by City to anyone assignment or sublease shall not
constitute a waiver with respect to any further assignments or subleases. ACES, in approving any
assignment or sublease, shall be entitle to consider among other things the financial capability of
the assignee or sub-lessees and compatibility of the proposed use with other uses in the building.
ARTICLE VIll
GENERAL PROVISIONS
8.1 Subdivision, ACES reserves the right, without the consent of the City, to execute
and record such declarations, restrictive covenants, maps or other documents or amendments or
supplements thereto for the purpose of subdividing or re-subdividing the Premises into separate
units and common elements pursuant to the Colorado Common Interest Ownership Act, provided
that the ACES's right as declarant and owner thereof shall be subject and subordinate to the
possessory and other rights of the City to the Premises under this lease,
8,2 Non-Waiver. Failure of ACES to require strict performance of any covenant or
condition shall not be deemed a waiver of such covenant or condition as to that or any
subsequent failure, One or more waivers of any breach of any covenant or condition by ACES
shall not be construed as a waiver of a subsequent breach of the same or any other covenant or
condition, and the consent or approval by ACES to or of any act by City requiring ACES'
consent or approval shall not be deemed to waive or render unnecessary ACES' consent or
approval to or of any subsequent similar or dissimilar act by City. No waiver of any provision of
this lease shall be effective unless it is in writing and signed by ACES.
8.3 Estoppel Certificates. City agrees at any time and from time to time, upon ten
7
,__.L,_".';"\.';,,.-
days' prior request by ACES, to execute, acknowledge, and cdeliver to ACES a statement in
writing certifying that this lease is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating the modifications),
and the dates to which the Rent and other charges have been paid in advance, if any, and
confinning City's acceptance of the Premises, the commencement of the lease tenn, and the Rent
provided under the lease, andimy ether affirmations or certifications reasonably requested by
ACES with the intent that the statement delivered, may be relied upon by any prospective
purchaser, mortgagee, or assignee of any mortgagee of the building or the Premises.
8,4 Recording. City shall not record or permit the recordation of this Lease or any
assignment, sublease, license, grant of concession, mortgage or .any other document evidencing
the transfer or hypothecation of all or any part of this Lease or City's interest in the Premises
without in each instance having received the prior written consent of ACES. ACES may file or
record this Lease or any of the documents related to this Lease or a summary of some or all of
the provisions hereof at any time without City's consent.
8,5 Notices, Wherever in this lease it shall be required or pennitted that notice or
demand be given or served by either party to this lease on the other, such notice or demand shall
be given or served in writing and either personally served at or forwarded by certified mail to the
following addresses and shall be deemed effective upon personal service or deposit as certified
maiL
To City:
Aspen City Manager
130 South Galena Street
Aspen, Colorado 81611
With a Copy To:
Aspen City Attorney
130 South Galena Street
Aspen, Colorado 81611
To ACES:
ACES Executive Director
100 Puppy Smith Street
Aspen, CO 81611
With a Copy To:
Tom Todd, Esq,
Holland & Hart LLC
600 East Main Street
Aspen, CO 81611
Either party may change such address from time to time by written notice given as herein
above provided,
8,6 AdditionaL In addition to the other remedies in this lease provided, ACES shall be
entitled to the restraint by injunction of the violation or attempted or threatened violation of any
of the covenants, conditions or provisions of this lease.
8.7 Holding Over. Any holding over after the expiration of the term 'hereof shall be
8
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construed to be a tenancy from month to month except that ACES shall have the right to
terminate such tenancy at the end of any calendar month upon ten days' advance written notice,
8.8 Covenant of Ouiet Eniovment. So long as the City is not in default or breach
hereunder, the ACES covenants that the CITY shall peaceably and quietly occupy and enjoy the
leased Premises subject to the terms hereof. The ACES warrants and agrees to defend the title to
the Premises and further warrants that it has full authority to execute this lease,
8.9 Severabilitv, The terms, conditions, covenants, and provisions of this lease shall
be deemed to be severable, If any provision contained herein shall be determined to be invalid by
a court of competent jurisdiction or by operation of any applicable law, it shall not affect the,
validity of any other clause or provision herein,
8.10 Entrv-bv ACES. ACES and its authorized agents, employees, attorneys and
contractors shall be entitled, at all posted business hours (and in emergencies at all times), to
enter the Premises to inspect the same or determine compliance herewith and shall have all such
rights as may enable ACES promptly, efficiently and economically to carry on any work or
repair, reconstruction, or restoration, to which ACES is obligated hereunder. City waives any
claims for damages for business interference, inconvenience or loss of quiet enjoynient or other
loss occasioned by such entry and repairs unless such repairs were occasioned by the negligence
or intentional acts of ACES. ACES and its authorized representatives shall have the right to enter
the Premises at times other than City's business hours to exhibit the Premises to prospective
purchasers, ACES agrees to provide City with reasonable prior notice, whenever it deems it
necessary to enter.
8.11 Binding Effect. This lease and all agreements herein contained shall bind the
parties hereto. Each term and each provision of this lease shall be construed as and shall have the
same force and effect as though made in the form of a covenant. The parties covenant that the
signatory to this lease has the authority to sign on behalf of the principal.
8.12 Counteroarts. This lease may be executed in counterparts and with facsimile
signatures which taken together shall be one document. The parties shall deliver original signed
copies within seven days of facsimile transmission of their signatures,
8.13 Governing Law. This lease shall be construed in accordance with the laws of the
State of Colorado, The parties agree to submit to the personal Jurisdiction of the State of
Colorado in connection with any action or proceeding relating to this lease or the Premises, The
parties expressly acknowledge and agree that venue of any action shall be in Pitkin County,
Colorado,
8.14 Time of Essence. Time is ofthe essence for all obligations in this lease,
8.15 City's Authority. City shall not be construed as or have any authority to act as the
agent of ACES concerning the Premises, City shall have no authority to surrender, waive,
compromise, alter or convey any of ACES' rights in the Premises,
8.16 Headings. The headings and captions contained in this lease are inserted for
convenience of reference only and are not to be deemed part of, or to be used as an aid in
construing, this lease.
8.17 Survival. All of the representations, warranties, and covenants in this lease shall
9
survive the expiration or termination of this lease,
8.18 Entire agreement. This lease covers in fi1ll' each and every agreement of every
kind and nature whatsoever between the parties hereto concerning the Premises, and all
preliminary negotiations and agreements of whatever kind or nature are merged herein. ACES
has made no representations or promises whatsoever with respect to the Premises except those
contained herein and the aforementioned Agreement for Long Term Leases; and no other person,
firm or corporation has, at any time, had any authority from ACES to make any representations
or promises on' behalf of ACES; and City expressly agrees that, if any such representations or
promises have been made by others, City hereby waives all rjght to rely thereon, No verbal
agreement or implied covenant shall be held to vary the provisions hereof, any statute, law or
custom to the contrary notwithstanding,
8,19 Waiver of Jurv Trial. ACES and City waive any right to a trial by ajury of any
dispute related to this lease.
8.20 Force Maieure, In the event that the ACES or the City shall be delayed or
hindered or prevented from the performance of any act required hereunder, by reason of
governmental restrictions, scarcity of labor or materials, strikes, or for reasons beyond such
party's control, the performance of such act shall be excused for the period of delay; and the
period for the performance of any such act shall be extended for the period necessary to complete
performance after the end of the period of such delay,
8.21 Amendment or Modification. Except as otherwise provided herein, this
agreement and all of these terms and conditions may not be amended or modified absent a
written agreement duly executed by the parties, '
IN WITNESS WHEREOF, the ACES and City have duly executed this lease on the day
and year first above written,
[Signatures on following page]
10
CITY OF ASPEN:
State of Colorado
County of Pitkin
)
)
)
ss.
By:
Title:
day of
The foregoing instrument was acknowledged before me this
, by the above named.
ACES
State of Colorado
County of Pitkin
)
)
)
ss,
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires:
Notary Public
By:
Title:
day of
The foregoing instrument was acknowledged before me this
, by the above named.
WITNESS MY HAND AND OFFICIAL SEAL,
My commission expires:
Notary Public
11
Exhibits to be attached
Exhibit A - Legal Description of Parking Lot Parcel.
JPW - saved: 5/31!20U6-4931.c:~ohn\word\all'IACES-P Arking Lot Lease. DOC
12
EXHffiIT G
STORM WATER SEWER EASEMENT
THIS STORM WATER SEWER EASEMENT AGREEMENT is made and
entered into this day of , 2006, by and between ASPEN CENTER
FOR ENVIRONMENTAL STUDIES, a Colorado non-profit corporation (hereinafter
referred to as "Grantor") and CITY OF ASPEN, COLORADO, a Colorado home rule
municipal corporation (hereinafter referred to as "Grantee").
WI TNE SSE TH:
For and in consideration of the sum ofTEN DOLLARS ($10,00) and other good
and valuable consideration paid by Grantee to Grantor, the receipt of which is hereby
acknowledged, Grantor does hereby sell and quit claim unto Grantee, its successors and
assigns, a non-exclusive perpetual storm water sewer easement over, under and across an
area as shown and described on Exhibit A attached hereto and incorporated herein by
this reference (the "Easement"), The Easement granted hereunder includes the right to
construct, install, remove, replace, add to, maintain, repair, operate, change or alter an
underground storm sewer line, manholes, drop structures and appurtenances thereto, as
well as the right of ingress and egress over and across the adjoining lands of Grantor for
access to and from the Easement.
The width of the Easement fifteen feet (15') wide, being seven and one-half feet
(7.5') either side ofa centerline, except in the area encompassing the Pretreatment
Sedimentation Basin, where the easement shall be fifty feet by fifty feet (50'x50'), as
shown and described on Exhibit A.
Grantor warrants that Grantor, and any successors and assigns of Grantor, shall at
no time permit any building or other permanent improvements to be hereafter constructed
over the Easement, except for trees, landscaping, fencing, overhead and underground
utilities, irrigation ditches and paving for driveways, parking areas and trails.
Following the completion of the purpose of any entry by the Grantee upon the
Easement for any of the aforesaid objects, Grantee shall restore the premises to
substantially the same condition existing at the time of entry thereon, and, specifically,
Grantee shall promptly and fully restore, repair or replace any trees, landscaping, fences,
paving, utilities, ditches and irrigation systems, equipment or structures that are damaged
or disturbed by the exercise of the rights granted hereby,
IN WITNESS WHEREOF, the parties hereto have set their hand and seals the
day and year first above written.
GRANTOR:
ASPEN CENTER FOR ENVIRONMENTAL STUDffiS
a Colorado non-profit corporation
~i.~ -
Tom Car amone, ExecutIve Drrector
ATTEST:
Hensley Peterson, Secretary
GRANTEE:
CITY OF ASPEN, COLORADO
a Colorado home rule municipal corporation
By:
Helen K. Klanderud, Mayor
ATTEST:
By:
Kathryn S. Koch, City Clerk
Approved as to Form:
By:
John Worcester, City Attorney
2
STATE OF COLORADO
COUNTY OF PITKIN
)
) ss:
)
The foregoing STORM WATER SEWER EASEMENT AGREEMENT, was subscribed and
sworn to before me this _ day of , 2006, by Tom Cardamone as Executive
Director and by Hensley Peterson as Secretary on behalf of Aspen Center for Environmental
Studies, a Colorado non-profit corporation.
Witness my hand and official seaL
My commission expires:
Notary Public
STATE OF COLORADO
COUNTY OFPITKIN
)
) ss:
)
The foregoing STORM WATER SEWER EASEMENT was subscribed and sworn to before me this
day of ,2006 by Helen K. Klanderud as Mayor and by Kathryn S,
Koch as City Clerk on behalf of the City of Aspen, Colorado,a Colorado home rule municipal
corporation.
Witness my hand anp. official seal.
My commission expires:
Notary Public
3544578_1.noc
3
!
A't'tachmen't 'B'
INTERGOVERNMENTAL AGREEMENT
THIS AGREEMENT, made this day of May, 2006, by and between
the ASPEN CONSOLIDATED SANIT A nON DISTRICT hereinafter referred to as
"ACSD" and the CITY OF ASPEN, STATE of COLORADO, hereinafter referred to
as "the City."
RECITALS
WHEREAS, the City of Aspen Parks and Recreation Department is currently
developing the Jenny Adair Regional Stormwater Quality Project (the "Jenny Adair
Project") in Aspen, Colorado; and
WHEREAS, ACSD has engaged Western Slope Utilities, Inc. (W.S.U., Inc.), a
General Contractor, to work on a significant project for ACSD in the general vicinity of
the Jenny Adair Project; and
WHEREAS, W,S.U., Inc. has prepared pricing associated with the proposed
underground stormwater pipe conveyance system that is similar in character to the work
to be performed for ACSD; and
WHEREAS, the City desires to avail itself of this opportunity to engage W.S.u.,
Inc., at established bid costs in materials and labor by entering into this Agreement with
ACSD to add the Work required by the Jenny Adair Project to the Work currently
proposed by that certain contract between ACSD and W.S.U., Inc.
NOW THEREFORE, it is hereby agreed as follows:
I. CITY RESPONSIBILITY
The City will provide construction documents, specifications, and project
management resources necessary to effectively coordinate with W.S.u., Inc. for
the duration of the project.
-1-
II. ACSD RESPONSIBILITY
The ACSD will provide the pre-negotiated contract agreement with W.S.U., Inc.
containing favorable unit costs.
III. GENERAL PROVISIONS
A. This Agreement may be terminated as follows:
Termination for Cause.
If, through any cause, the City shall fail to perform its obligation to ACSD or
W.S.u., Inc., as set forth herein or in the Change Order as contemplated herein,
ACSD shall thereupon have the right to terminate this Agreement for cause by
giving written notice to the City of its intent to terminate and at least ten (10) days
opportunity to cure the default or show cause why termination is otherwise not
appropriate.
Notwithstanding above, the City shall not be relieved of liability to ACSD for any
damages sustained by ACSD by virtue of any breach of the Agreement by the City.
B. Notwithstanding anything herein to the contrary, the parties understand
and agree that all terms and conditions of this Agreement and attachments hereto
which may require continued performance or compliance beyond the termination
date of the contract shall survive such termination date and shall be enforceable by
either party as provided herein in the event of such failure to perform or comply
by the other party.
C. This Agreement is subject to such modifications as may be required by
changes in Federal or State law, or their implementing regulations. Any such
required modification shall automatically be incorporated into and be part of this
contract on the effective date of such change as if fully set forth herein. Except as
specifically provided otherwise herein, no modification of this Agreement shall be
effective unless agreed to in writing by both parties in an amendment to this
contract that is properly executed and approved in accordance with applicable law.
-2-
D. To the extent that this Agreement may be executed and performance of the
obligations ofthe parties may be accomplished within the intent of the
Agreement, the terms of this Agreement are severable, and should any term or
provision hereof be declared invalid or become inoperative for any reason, such
invalidity or failure shall not affect the validity of any other term or provision
hereof. The waiver of any breach of a term hereof shall not be construed as a
waiver of any other term, or the same term upon subsequent breach.
E. This Agreement is intended as the complete integration of all
understandings between the parties. No prior or contemporaneous addition,
deletion, or other amendment hereto shall have any force or effect whatsoever,
unless embodied herein by writing.
F. The City represents and warrants that it currently has no interest, and shall
not acquire any interest, direct or indirect, that would conflict in any manner or
degree with the performance of the City's obligations under this Agreement. The
City further covenants that, in the performance of this contract, it will not employ
any person or firm having any such known interests.
G. This Agreement shall become "effective" only upon the date it is executed
by ACSD.
H. It is expressly understood and agreed that the enforcement of the terms and
conditions of this Agreement, and all rights of action relating to such enforcement,
shall be strictly reserved to the parties hereto, and nothing contained in this
contract shall give or allow any such claim or right of action by any other or third
person on such Agreement. It is the express intention of the parties that any
person or entity other than the parties receiving services or benefits under this
contract be deemed to be an incidental beneficiary only.
1. The City assures and guarantees that it possesses the legal authority to
enter into this contract. The City warrants that it has taken all actions required by
its procedures, by-laws, and/or applicable law to exercise that authority and to
lawfully authorize its undersigned signatory to execute this contract and to bind
-3-
the City to its terms. The person(s) executing this Agreement on behalf of the
City warrants that they have full authorization to execute this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this contract the
day and year first above written.
ATTEST:
ASPEN CONSOLIDATED SANITATION
DISTRICT
By
By
Title
Title
ATTEST: (SEAL)
CITY OF ASPEN, COLORADO
By
By
Title
Title
-4-
'.
INTERGOVERNMENTAL AGREEMENT
Tms AGREEMENT, made this 17-- -r!:J day of June, 2006, by and between the
ASPEN CONSOLIDATED SANITATION DISTRICT hereinafter referred to as (the
"District") and the CITY OF ASPEN, STATE of COLORADO, hereinafter referred to as
(the "City").
RECITALS
WHEREAS, pursuantto C.R.S. ~ 29-1-203, the District and the City have the authority to
contract with each other for the accomplishment of governmental purposes which each party has
the authority to provide; and
WHEREAS, the City of Aspen Parks and Recreation Department is currently developing
the Jenny Adair Regional Stormwater Quality Project (the "Jenny Adair Project") in Aspen,
Colorado; and
WHEREAS, the District has contracted with Western States Utilities, Inc., ("WSU") a
General Contractor, for work on the Second Street Sewer Replacement, a project in the general
vicinity of the Jenny Adair Project; and
. WHEREAS, WSU previously prepared a pricing estimate for work associated with the
proposed underground starmwater pipe conveyance system which is similar in character to the
work performed for the District, and which pricing estimate has been accepted as a Change Order
to the District's Contract; and
WHEREAS, the City desires to avail itself of this opportunity to engage WSU at accepted
Change Order bid costs in materials and labor by entering into this Agreement with the District to
add the work required by the Jenny Adair Project to the work performed pursuant to that certain
contract between the District and WSU, and accept assignment of said Construction Contract.
----,"^,<~ """^"",,~~.~..........,_.'
NOW THEREFORE, in consideration of these premises and the promises set
forth below, it is hereby agreed as follows:
I. CITY RESPONSffilLITY
The City hereby agrees to execute the attached Assignment of ASSIGNMENT AND
ASSUMPTION OF CONSTRUCTION CONTRACT and to thereafter perform all
duties and obligations of the Owner under said Construction Contract, including, without
limitation:
A. Provision of construction documents, specifications, and project management
resources necessary to effectively coordinate with WSU for the duration of the Project.
B. Make, when due, all payments to WSU for the work performed on the Project.
n. DISTRICT RESPONSffiILITY
The District, having entered into a Change Order with WSU, providing a pre-negotiated
unit price for labor and materials, shall execute the attached ASSIGNMENT AND
ASSUMPTION OF CONSTRUCTION CONTRACT and will secure the signature of
the appropriate principals ofWSU consenting and agreeing to such assignment.
ill. GENERAL PROVISIONS
A. This Agreement may be terminated as follows:
Termination for Cause.
It: through any cause, the City shall fail to perform its obligation to the District or WSU,
as set forth herein or in the Change Order, the District shall thereupon have the right to
terminate this Agreement for cause by giving written notice to the City of its intent to
terminate and at least ten (10) days opportunity to cure the default or show cause why
termination is otherwise not appropriate.
Notwithstanding above, the City shall not be relieved of liability to the District for any
damages sustained by the District by virtue of any breach of this Agreement by the City.
-2-
B. Notwithstanding anything herein to the contrary, the parties understand and agree
that all terms and conditions of this Agreement and attachments hereto which nlay require
continued performance or compliance beyond the termination datebf the Construction
Contract shall survive such termination date and shall be enforceable by either party as
provided herein in the event of such failure to perform or comply by the other party.
C. This Agreement is subject to such modifications as may be required by changes in
Federal or State law, or their implementing regulations. Any such required modification
shall automatically be incorporated into and be part of this contract on the effective date of
such change as if fully set forth herein. Except as specifically provided otherwise herein,
no modification of this Agreement shall be effective unless agreed to in writing by both
parties in an amendment to this contract that is properly executed and approved in
accordance with applicable law.
D. To the extent that this Agreement may be executed and performance of the
obligations of the parties may be accomplished within the intent of the Agreement, the
terms of this Agreement are severable, and should any term or provision hereof be
declared invalid or become inoperative for any reason, such invalidity or failure shall not
affect the validity of any other term or provision hereof The waiver of any breach of a
term hereof shall not be construed as a waiver of any other term, or the same term upon
subsequent breach.
E. This Agreement is intended as the complete integration of all understandings
between the parties. No prior or contemporaneous addition, deletion, or other
amendment hereto shall have any force or effect whatsoever, unless embodied herein by
writing.
F. The City represents and warrants that it currently has no interest, and shall not
acquire any interest, direct or indirect, that would conflict in any manner or degree with
the performance of the City's obligations under this Agreement. The City further
covenants that, in the performance of this contract, it will not employ any person or firm
having any such known interests.
G. This Agreement shall become "effective" only upon the date it is executed by the
District.
-3-
H. It is expressly understood and agreed that the enforcement of the terms and
conditions of this Agreement, and all rights of action relating to such enforcement, shall be
strictly reserved to the parties hereto, and nothing contained in this contract shall give or
allow any such claim or right of action by any other or third person on such Agreement. It
is the express intention of the parties that any person or entity other than the parties
receiving services or benefits under this contract be deemed to be an incidental beneficiary
only_
1. The City assures and guarantees that it possesses the legal authority to enter into
this contract. The City warrants that it has taken all actions required by its procedures,
by-laws, and/or applicable law to exercise that authority and to lawfully authorize its
undersigned signatory to execute this contract and to bind the City to its terms, The
person(s) executing this Agreement on behalf of the City warrants that they have full
authorization to execute this Agreement.
1. To the extent permitted by law, City hereby agrees to indemnify, defend and hold
harmless the District, its Directors, Consultants and employees from and against and in
any respect of all claims asserted against, resulting to, imposed upon or incurred by the
District (whether such claims are by, against or relate to The District, its Directors,
Consultants and employees, directly or indirectly, by reason of or resulting from any
claims or liabilities arising out of said Construction Contract or any breach of Construction
Contract or from any liabilities of the City arising after the date of execution hereof. The
City further agrees, to the extent permitted by law to indemni.fY, defend and hold harmless
the District from and against the entirety of any adverse consequences the District may
suffer resulting from, arising out of, relating to, in the nature of or caused by any liability
of the City, whether arising out of the Lease or the operation of the leasehold property
which may arise after execution of this Assigrunent.
Nothing herein shall be construed as a waiver of any protection available to the
District, the City or their respective employees under the Colorado Governmental
Immunity Act, codified at CRS. ~ 24-10-101, et seq,
-4-
, .
K. Not withstanding the foregoing, nothing under this Agreement or the Assignment
executed pursuant hereto, shall be deemed to affect or cancel any contractual obligations
or duties to the District ofWSU, its insurors, or its bonding agents, pursuant to said
Construction Contract, or the insurance policies and bonds, which are in place for the
benefit of the District pursuant to said Construction Contract.
IN WITNESS WHEREOF, the parties hereto have executed this contract the day and
year first above written.
ATTEST:
ASPEN CONSOLIDATED SANITATION DISTRICT
BY~
Title /ICeckA\~
,V ~ 1<J
By /#~/1 .~z..,
\
Title ~ 1, ~/ -,-- #,V)4, >-1
~
ATTEST: (SEAL)
Title
Title
~./ -
By
By
-5-
A't'tachmen't 'c'
JENNY ADAIR REGIONAL STORMW A TER QUALITY PROJECT
Comprehensive Project Budget / Construction Costs Aspen Parks Department
6-Jun-06
WORK ITEM QTY UNIT UNIT COST TOTAL COST
GENERAL CONDITIONS - COA scope
City Parks Project Management 1 LS 35,000.00 35,000.00
(Design & Construction 2006-2007)
City Engineering Proj. Oversight/Inspect. 1 LS 9,000.00 9,000.00
Consult. Engineer Const. Observation I LS 34,500.00 34,500.00
Geotechnical Inspections I LS 12,500.00 12,500.00
Permitting 1 LS 8,000.00 8,000.00
Construction Surveying (easements, pond) 1 LS 8,000.00 9,000.00
Construction Traffic Control 1 LS 5,000.00 5,000.00
Construction Fencing 1,200 LF 1.00 1,200.00
Subtotal 114,200.00
SITE PREPARATION - COA scope
Demolition-Puppy Smith House I LS 28,000.00 28,000.00
Clearing and Grubbing 2.58 AC 6,500.00 16,770.00
Unclassified Excavation 6,200 CY 10.00 62,000.00
Rock Retaining Wall (3' avg. height) 1,140 LF 30.00 34,200.00
Fine Grade (350 SF Picnic Area) (1 day) I LS 901.00 901.00
Fine Grade Wetland Benches (16,692 SF) 1 LS 10,565.00 10,565.00
(3.5 weeks landscape restoration crew)
Screen and Place Topsoil 720 CY 6.50 4,680.00
Erosion Control I LS 10,000.00 10,000.00
Subtotal 167,116.00
SITE CONSTRUCTION - COA scope
Concrete Pavement (3,032 SF 5" colored) 46.7 CY 500.00 23,350.00
8" PVC pipe outletl8" valve (62 LF) I LS 6,500.00 6,500.00
12" Cobble Pond Bottom 12,947 SF 1.10 14,241.70
Subtotal 44,091.70
OVERLOOK #1 - COA scope
Crusher Fines paving (582 SF) 10.1 TN 15.40 155.54
Crusher Fines install labor (2 days) I LS 1,802.00 1,802.00
Sodding (Picnic Area) 350 SF 1.50 525.00
Irrigation (Sod Picnic Area) 350 SF 0.80 280.00
Masonry @ Overlook #1 1 LS 15,000.00 15,000.00
Subtotal 17,762.54
OVERLOOK #2 - COA scope
Crusher Fines paving (315 SF)
Crusher Fines install labor (2 days)
Concrete paving (216 SF 4" colored)
Masonry @ Overlook #2
Subtotal
OVERLOOK #3 - COA scope
Crusher Fines paving (547 SF)
Crusher Fines install labor (2 days)
Masonry @ ACES/Overlook #3
Subtotal
PLANT MATERIALS - COA scope
Seeding (Native: 57,371 SF)
Irrigation (Native Areas)
Deciduous Riparian Trees (2" cal.)
Native Area Trees (1-1/2" cal.)
Coniferous Trees (8' height)
Native Area Shrubs (5 gal.)
Wetland Edge Plantings
Native Area Mulching
Subtotal
5.4 TN 15.40 83.16
I LS 1,802.00 1,802.00
2.6 CY 500.00 1,300.00
I LS 20,000.00 20,000.00
23,185.16
9.4
I
I
TN
LS
LS
15.40
1,802.00
15,000.00
144.76
1,802.00
15,000.00
16,946.76
STORMWATER INFRASTRUCTURE SITE PREPARATION-COA scope
Clearing and Grubbing - infrastructure area I LS 9,500.00
Spillway/Riprap @ 'dam' landform 665 CY 30.00
(66 haul trips) + cobble placement-I week
Gravel Parking area labor (932 SY)
(2 weeks labor)
Class 6 Aggregate Base Course-parking
Gravel Drive area behind Electric (944 SY)
(1.5 weeks labor)
Class 6 Aggregate Base Course-drive
Hot Mixed Asphalt (grading SX)(ACIOF)
Puppy Smith road repair (By others)
Subtotal
LS
155
I
CY
LS
9,500.00
19,950.00
11,840.00
11,840.00
157
56
CY
SY
10.50
8,880.00
1,627.50
8,880.00
1.32 AC
57,371 SF
40 EA
60 EA
18 EA
550 EA
16,692 SF
1.32 AC
10.50
68.85
1,648.50
3,855.60
57,301.60
4,000.00
0.55
450.00
200.00
400.00
25.00
2.00
3,500.00
5,280.00
31,554.05
18,000.00
12,000.00
7,200.00
13,750.00
33,384.00
4,620.00
125,788.05
STORMW A TER INFRASTRUCTURE SITE RESTORA TION-COA scope
Seeding (Native: 8,500 SF) 0.2 AC 4,000.00
Native Area Mulching 0.2 AC 3,500.00
Subtotal
Grand, Subtotal - City work scope
Contingency - City work scope
800.00
700.00
1,500.00
12%
567,891.81
68,147.02
Total City of Aspen Work Scope
636,038.83
STORMW ATER INFRASTRUCT. GEN. CONDITIONS - Bid by W.S.U., Inc,
Mobilization (crane time, lodging, bonding) 1 LS 89,087.00
Construction Traffic Control 1 LS 4,515.00
Construction Surveying I LS 8,000.00
Subtotal
89,087.00
4,515.00
8,000.00
101,602.00
STORMWATER INFRASTRUCTURE PREPARATION - Bid hy W.S.U" Inc.
Erosion Control 1 LS 3,438.00
Remove existing 36" CMP 1 LS 23,141.14
Remove manholes - (qty=2) I LS 7,606.00
Dewatering I LS 61,982.00
Common Excavation-infrastructure I LS 12,642.00
Sewer Line protection I LS 2,295.00
Subtotal
3,438.00
23,141.14
7,606.00
61,982.00
12,642.00
2,295.00
111,104.14
STORMWATER INFRASTRUCTURE CONSTRUCTION -Bid hy W,S,U., Inc.
Concrete crest wall
54" RCP
38"x60" RCP
36" RCP
30" RCP
24" RCP
18"RCP
18" FES
72" Manholes (qty~3)
60" Manholes (qty=7)
Diversion Manhole
Headwall-dual 24" @ outfall
Sedimentation Basin/vault 1
Sedimentation Basin/vault 2
Sedimentation Basin/vault 3
Water Quality Ouftall Release Structure
Subtotal
Grand Subtotal - W.S.U., Inc. work scope
Materials increase allowance (Items 108-123)
1
I
I
I
1
1
1
I
I
I
1
1
1
I
I
1
LS
LS
LS
LS
LS
LS
LS
LS
LS
LS
LS
LS
LS
LS
LS
LS
23,707.35
38,421.50
77,379.72
23,759.68
18,887.04
6,379.50
4,939.44
497.00
30,786.51
40,807.83
16,978.00
12,956.00
66,169.00
66,169.00
66,169.00
23,621.00
23,707.35
38,421.50
77,379.72
23,759.68
18,887.04
6,379.50
4,939.44
497.00
30,786.51
40,807.83
16,978.00
12,956.00
66,169.00
66,169.00
66,169.00
23,621.00
517,627.57
5%
730,333.71
25,881.38
Total W,S.U., Inc Contract Work Scope
756,215.09
1,392,253.92
Grand Total Jenny Adair Project Construction Estimate
IPROJECT FUND SOURCES
Parks Department previously appropriated funds
TABOR funds available for 2006
City Open Space and Trails Fund
(to be repaid from 2007 TABOR eXCess tax collections)
Grand Total Jenny Adair Project Development Budget
AMOUNT I
450,000.00
450,000.00
492,253.92
1,392,253.921
--.--
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ASSIGNMENT AND ASSUMPTION OF CONSTRUCTION CONTRACT
THIS ASSIGNMENT (the" Assignment") is made and entered into as of this /4 ftaay of June,
2006, by and between the Aspen Consolidated Sanitation District ("Assignor"), arid the City of Aspen,
Colorado ("Assignee").
RECITALS
A. Assignee is acquiring certain Contract obligations from Assignor pursuant to an
Intergovernmental Agreement, dated June , 2006, by and among Assignor and Assignee.
B. By virtue ofa Contract between Assignor and Western States Utilities, Inc., ("WSU") for
installation of the Second Street Sewer Replacement, which Contract was subject to a negotiated Change
Order for benefit of the Assignee's "Jenny Adair Regional Stormwater Quality Project" in Aspen,
Colorado, WSU has agreed to perform work for benefit of said Project.
C. Assignee wishes to acquire and Assignor wishes to assign all rights and obligations under
said Contract which accrue on or after execution and closing of this Assignment.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Except for certain "punch list" items remaining to be performed by WSU, Assignor does
hereby assign, transfer and set over to Assignee all of Assignor's rights under the above-referenced
Construction Contract between Assignor and WSU, and all of Assignor's obligations under the above-
referenced Construction Contract between Assignor and WSU accruing on or after execution and closing
of this Assignment.
2. The above-referenced Construction Contract between Assignor and WSU is presently in
full force and effect and unmodified except by the above-referenced Change Order.
3. Assignee hereby accepts such assignment and assumes all of the obligations and liabilities
of Assignor as Lessee under the Lease and Landlord under the Sub-Lease that accrue on or after execution
and closing of this Assignment,
4. This instrument shall be binding upon and shall inure to the benefit of Assignor and
Assignee and their respective successors and assigns.
5. This instrument shall be governed by the laws of the State of Colorado.
6. To the extent permitted by law, Assignee hereby agrees to indemnify, defend and hold
harmless the Assignor its Directors, Consultants and employees from and against and in any respect of all
claims asserted against, resulting to, imposed upon or incurred by the Assignor (whether such claims are
by, against or relate to Assignor, its Directors, Consultants and employees, directly or indirectly, by
reason of or resulting from any claims or liabilities arising out of said Construction Contract or any breach
of Construction Contract or from any liabilities of the Assignee arising after the date of execution hereof
The Assignee further agrees, to the extent permitted by law to indemnify, defend and hold harmless the
Assignor from and against the entirety of any adverse consequences the Assignor may suffer resulting
from, arising out of, relating to, in the nature of or caused by any liability of the Assignee, whether arising
Page 1 of3
out of the Lease or the operation of the leasehold property which may arise after execution of this
Assignment.
Nothing herein shall be construed as a waiver of any protection available to the Assignor,
the Assignee or their respective employees under the Colorado Governmental Immunity Act, codified at
C.RS. ~ 24-10-101, et seq,
7. This instrument may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one in the same Assignment.
8. All notices required under said Construction Contract shall be given by the Assignee to the
Assignor at their respective business addresses. Furthermore, should any notices be received from WSU
or any other party affecting Assignor in any way, including notices of default, Assignee shall immediately
provide Assignor with a copy of such notice in writing, time being of the essence.
IN WITNESS WHEREOF, the Assignor and Assignee have caused this Assignment to be
executed on the day and year first above written.
ASSIGNOR:
Aspen~, id~t~~.~itation Dis~~t
By:A-~~i(
Chairman
ATTEST:
!1/~c~
S""r<>+'U)' (Ii c.,.e d.41
ASSIGNEE:
City of Aspen, Colorado
~ .LJII' __
By: ~ .~
Ma~r
ATTEST:
City Clerk
Page 2 of3
Acceptance and Consent of Assignment by Contractor
1. Western States Utilities, Inc" ("WSU") General Contractor to the Aspen Consolidated
Sanitation District (the "District") for the Second Street Sewer Replacement, pursuant to a validly
executed Construction Contract, hereby acknowledges acceptance of a Change Order to said Construction
Contract preserving the unit prices for labor and materials in said Construction Contract, for the benefit of
the Assignee, City of Aspen, Colorado, (the "City") and further hereby accepts and consents to
assignment of said Construction Contract by the District as Assignor to the City as Assignee, for the
purpose of initiating and completing any and all construction work relating to the "Jenny Adair Regional
Stormwater Quality Project" in Aspen, Colorado, for which the Change Order was accepted.
2. It is further hereby acknowledged and agreed that WSU shall name the City as "additional
insured" for all insurance policies under said Construction Contract, and shall extend or secure
Performance, Payment and Maintenance Bonds for the benefit of Assignee City in the amount of said
Change Order.
3, It is further hereby acknowledged and agreed that after date of Assignment of said
Construction Contract and acceptance hereof, WSU shall cooperate with the Assignee City in completing
said Construction Contract for the Jenny Adair Regional Stormwater Quality Project in accordance with
plans and specifications previously established by the Assignee City.
4. It is further hereby acknowledged and agreed that after date of Assignment of said
Construction Contract and acceptance hereof, WSU shall look to the Assignee City as the sole and
exclusive source for payment of any and all amounts due and owning under said Construction Contract
and hereby agrees to hold harmless the Assignor District from and against all claims for payment for work
performed upon the Jenny Adair Regional Stormwater Quality Project.
5, It is further hereby acknowledged and agreed that after date of Assignment of said
Construction Contract and acceptance hereof, not withstanding the Assignment, WSU remains bound to
Assignor District pursuant to terms and conditions of said Construction Contract for the Second Street
Sewer Replacement, including, without limitation, any and all warranties, completion of all punch list
items and all future maintenance obligations, if any. It is further acknowledged that nothing herein shall
affect WSU's obligations or the obligations of its bonding company to the Assignor District, /1---
This Acceptance and Consent of Assignment by Contractor is hereby executed this L day of
June, 2006.
tilities, Inc.
By:
ATTEST:
~~~
The c;lU'lI' or "epe...
CONTRACT FOR CONSTRUCTION
THIS AGREEMENT, made and entered into on June 12!!l 2006, by and between the
CITY OF ASPEN, Colorado, hereinafter called the "City', and Western SloDe Utilities.
Inc.. hereinafter called the "Contractor",
WHEREAS, the City has caused to be prepared, in accordance with the law,
specifications and other Contract Documents for the work herein described, and has
approved and adopted said documents, for the project: Jenny Adair Reaional
Stormwater Quality Proiect, and,
WHEREAS, the Contractor, in response to direct invitation, has submitted to the
City, in the manner and at the time specified, a sealed Bid in accordance with the terms
of said Invitation for Bids; and,
WHEREAS, the City, in the manner prescribed by law, has publicly opened,
examined, and canvassed the Bids submitted, and as a result of such canvass has
determined and declared the Contractor to be the lowest responsible and responsive
bidder for the said Work and has duly awarded to the Contractor a Contract For
Construction therefore, for the sum or sums set forth herein;
NOW, THEREFORE, in consideration of the payments and Contract for
Construction herein mentioned:
1, The Contractor shall commence and complete the construction of the Work as fully
described in the Contract Documents.
2, The Contractor shall furnish all of the materials, supplies, tools, equipment, labor
and other services necessary for the construction and completion of the Work
described herein,
3, The Contractor shall commence the work required by the Contract Documents within
seven (7) consecutive calendar days after the date of "Notice To Proceed" and will
complete the same by the date and time indicated in the Special Conditions unless
the time is extended in accordance with appropriate provisions in the Contract
Documents,
4, The Contractor agrees to perform all of the Work described in the Contract
Documents and comply with the terms therein for a sum not to exceed
Seyen Hundred Fifty-Six Thousand Two Hundred Fifteen ($ 756.215.00)
DOLLARS or as shown on the Bid Proposal (Exhibit A).
5, The term "Contract Documents" means and includes the documents listed in the City
of Aspen General Conditions to Contracts for Construction (version GC97-2) and in
the Special Conditions. The Contract Documents are included herein by this
reference and made a part hereof as if fully set forth here,
6, The City shall pay to the Contractor in the manner and at such time as set forth in
the General Conditions, unless modified by the Special Conditions, such amounts as
required by the Documents.
7. This Contract For Construction shall be binding upon all parties hereto and their
respective heirs, executors, administrators, successors, and assigns,
Notwithstanding anything to the contrary contained herein or in the Contract
Documents, this Contract For Construction shall be subject to the City of Aspen
Procurement Code, Title 4 of the Municipal Code, including the approval
requirements of Section 4-08-040, This agreement shall not be binding upon the
City unless duly executed by the City Manager or the Mayor of the City of Aspen (or
a duly authorized official in his/her absence) following a resolution of the Council of
the City of Aspen authorizing the Mayor or City Manager (or a duly authorized official
in his/her absence) to execute the same,
8. This agreement and all of the covenants hereof shall inure to the benefit of and be
binding upon the City and the Contractor respectively and their agents,
representatives, employees. Successors, assigns, and legal representatives.
Neither the City nor the Contractor shall have the right to assign, transfer or sublet
his or her interest or obligations hereunder without the written consent of the other
party,
9, This agreement does not and shall not be deemed or construed to confer upon or
grant to any third party or parties, except to parties to whom the Contractor or the
City may assign this Contract For Construction in accordance with the specific
written consent, any rights to claim damages or to bring suit, action or other
proceeding against either the City or the Contractor because of any breach hereof or
because of any of the terms, covenants, agreements or conditions herein contained,
10, No waiver of default by either party of any terms, covenants or conditions hereof to
be performed, kept and observed by the other party shall be construed, or operate
as, a waiver of any subsequent default of any of the terms, covenants or conditions
herein contained, to be performed, kept and observed by the other party,
11, The parties agree that this Contract For Construction was made in accordance with
the laws of the State of Colorado and shall be so construed, Venue is agreed to be
kept exclusively in the courts of Pitkin County, Colorado,
12,In the event that legal action is necessary to enforce any of the provisions of this
Contract for Construction, the prevailing party shall be entitled to its costs and
reasonable attorney's fees,
13. This Contract For Construction was reviewed and accepted through the mutual
efforts of the parties hereto, and the parties agree that no construction shall be made
or presumption shall arise for or against either party based on any alleged unequal
status of the parties in the negotiation, review or drafting of this Contract For
Construction,
14, The undersigned representative of the Contractor, as an inducement to the City to
execute this Contract For Construction, represents that he/she is an authorized
representative of the Contractor for the purposes of executing this Contract For
Construction and that he/she has full and complete authority to enter into this
Contract For Construction for the terms and conditions specified herein.
IN WITNESS WHEREOF, the parties agree hereto have executed this Contract For
Construction on the date first above written,
Title:
0, L~RADO /
(r/ /J-,;;/
~AA~
By:
APPROVED AS TO FORM:
By~4't>>~
I Attorney
ATTESTED BY:
CONTRAC
: lAJc:s-\e" I\~,,?- Ut> \l"~
--.1k~c-J-L
By:
I
P feSt d 6i\.-\
Title:
Note: Certification of Incorporation shall be executed if Contractor is a Corporation. If a
partnership, the Contract shall be signed by a Principal and indicate title.
AFFIDAVIT OF COMPLIANCE
Jenny Adair Regional Stormwater Quality Project
PROJECT NUMBER: 2006-034
The undersigned contractor has read a copy of the Contract Documents including the
construction plans, for this project and understands and hereby affmns that he/she does not now,
nor will he/she in the future, violate the provisions of said Contract Documents, so long as he/she
is under the Contract to the City of Aspen for the performance of a Contract. The undersigned
further acknowledges he/she understands and agrees to all terms and conditions of the Aspen
Municipal Code and its being part of the Contract with the City of Aspen.
Attes~L
Corporate Seal
t AJ:::,k~ i\ ~ ~ U h \; he', ~
Contractor l
By:
STATE OF COLORADO )
) SS.
COUNTY )
Before me V 5-
County, Colorado personally appeared v
to me personally to be the person(s) whose signatute(s) in my presence this
day of :JLU~_ ,A.D.20l&.. ~_",'"
My co~~s~~~~pires: IO/).lt ) 01 , '~
f'. BUR "
,>":....,.. .f'~8
:,'~OI AR i:..,. Notary Public
,a notary public and for S'U.Wlf'l1 If
known
CERTIFICATE OF INCORPORATION
(To be completed if Contractor is a Corporation)
STATE OF ~~IDY?uJi(J )
~ + )SS,
COUNTY OF OL-tVYIf'Kl' )
On this CJ'1-0 day of ~ \ ~
appeared
tlrvy &~
known, "Y~o, .II being by me first duly sworn, did
,4)~slde~u- cl
---uJ{StUY\ Sl1>{X U'h I L'i,,€) f'l-:k. and that the seal
affixed to said instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation by authority of its board
of directors, and said deponent acknowledged said instrument to be the free act and
deed of said corporation.
, 20~, before me
to me personally
say that s/he is
WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate first
above written,
~ B{~(y
Notary Public
r..."\~A.~
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EXHIBIT A
BID PROPOSAL
Project No.:
BID DATE:
PROJECT:
2006-034
JWle 5, 2006
Jenny Adair Regional Stormwater Quality Facility
PROPOSAL SUBMITTED BY:
Western Slope Utilities. Inc.
(CONTRACTOR)
.~~~~~~~~~~~~2006-034~~~~~~~~~~~~.
CONTRACTOR'S PROPOSAL
TO: The Governing Body of the City of Aspen, Colorado
The Wldersigned responsible bidder declares and stipulates that this proposal is made in good faith, without
collusion or connection with any other person or persons bidding for the same work, and that it is made in
pursuance of and subject to all the terms and conditions of the advertisement for bid, the invitation to bid and
request for bid, all the requirements of the bid documents including the plans and specifications for this bid, all
of which have been read and examined prior to signature, The bidder agrees to keep this bid open for One
Hundred sixtv (laO) consecutive calendar davs from the date of bid opening,
The Contractor agrees that construction shall start immediately following a mandatory pre-construction
conference held by the City's Project Manager, which also constitutes the Notice to Proceed, Submission of
this proposal will be taken by the City of Aspen as a binding covenant that the Contractor will finish
construction within the time specified in the Special Conditions of this contract document.
The City of Aspen reserves the right to make the award on the basis of the bid deemed most favorable to the
City, to waive any informalities or to reject any or all bids,
The City shall not pay the Contractor for defective work and/or for repairs or additional work required for
successful completion of the project All work not specifically set forth as a pay item in the bid form shall be
considered a subsidiary obligation of the Contractor and all costs in connection therewith shall be included in
the prices bid for the various items of work. Prices shall include all costs in connection with furnishing the
proper and success completion of the work, including furnishing all materials, equipment and tools, and
performing all labor and supervision to fully complete the work to the City's satisfaction,
Poor quality and workmanship shaIl not be paid for by the City. Such work product must be removed
immediately and replaced properly at no cost to the City,
All quantities stipulated in the bid form at unit prices are approximate and are to be used only as a basis for
estimating the probable cost of work and for the purpose of comparing the bids submitted to the City, The basis
of payment shall be the actual amoWlt of materials furnished and work done. The Contractor agrees
to make no claims for damages, anticipated profit, or otherwise on acCOWlt of any differences between the
amoWlt of work actually performed and materials actually furnished and the estimated amoWlt of work.
The City reserves the right to increase or decrease the amount of work to be done on the basis of the bid unit
price and up to plus or minus Twenty Five (25) Percent of the total bid.
I hereby acknowledge receipt of ADDENDUM(s) numbered (/) through
2127-2BP
BP'
Page 1
EXHIBIT A
BID PROPOSAL
Project No,:
BID DATE:
PROJECT:
2006-034
June 5, 2006
Jenny Adair Regional Stormwater Quality Facility
PROPOSAL SUBMITTED BY:
Western Slope Utilities. Ine,
(CONTRACfOR)
-$- {> {> {> {>{> {> {> {> {> {>{> {>2006-034 {> {> {> {> {> {> {> {> {> {> {> {>-$-
CONTRACTOR'S PROPOSAL
TO: The Governing Body of the City of Aspen, Colorado
The undersigned responsible bidder declares and stipulates that this proposal is made in good faith, without
collusion or connection with any other person or persons bidding for the same work, and that it is made in
pursuance of and subject to all the terms and conditions of the advertisement for bid, the invitation to bid and
request for bid, all the requirements of the bid documents including the plans and specifications for this bid, all
of which have been read and examined prior to signature. The bidder agrees to keep this bid open for One
Hundred sixtv (J 80) consecutive calendar davs from the date of bid opening,
The Contractor agrees that construction shall start immediately following a mandatory pre-construction
conference held by the City's Project Manager, which also constitutes the Notice to Proceed, Submission of
this proposal will be taken by the City of Aspen as a binding covenant that the Contractor will finish
construction within the time specified in the Special Conditions of this contract document.
The City of Aspen reserves the right to make the award on the basis of the bid deemed most favorable to the
City, to waive any informalities or to reject any or all bids,
The City shall not pay the Contractor for defective work and/or for repairs or additional work required for
successful completion of the project. All work not specifically set forth as a pay item in the bid form shall be
considered a subsidiary obligation of the Contractor and all costs in connection therewith shall be included in
the prices bid for the various items of work. Prices shall include all costs in connection with furnishing the
proper and success completion of the work, including furnishing all materials, equipment and tools, and
performing all labor and supervision to fully complete the work to the City's satisfaction.
Poor quality and workmanship shall not be paid for by the City. Such work product must be removed
immediately and replaced properly at no cost to the City.
All quantities stipulated in the bid form at unit prices are approximate and are to be used only as a basis for
estimating the probable cost of work and for the purpose of comparing the bids submitted to the City, The basis
of payment shall be the actual amount of materials furnished and work done, The Contractor agrees
to make no claims for damages, anticipated profit, or otherwise on account of any differences between the
amount of work actually performed and materials actually furnished and the estimated amount of work.
The City reserves the right to increase or decrease the amount of work to be done on the basis of the bid unit
price and up to plus or minus Twenty Five (25) Percent of the total bid.
I hereby acknowledge receipt of ADDENDUM(s) numbered (!J through
2127-2BP
BP'
Page 1
"
Construction License Agreement
(City as Grantee)
THIS CONSTRUCTION LICENSE AGREEMENT is made and entered into this
o(J~ day of June, 2006, by and between Aspen Center for Environmental Studies, a
Colorado nonprofit corporation ("Grantor") and the City of Aspen, a Home Rule Municipality
(hereinafter referred to as "City").
WIlT N E SSE T H:
WHEREAS, Grantor is the owner of certain real property located in the City of Aspen,
Pitkin County, Colorado, as more fully described in Exhibit A-knd appended hereto ("Grantor's
Property"); and
WHEREAS, Grantor is willing to grant to City a license for the purposes and under
certain terms and conditions set forth herein on such portion of Grantor's Property as is
reasonably necessary to construct the improvements described on Exhibit B;\md
WHEREAS, City is desirous of accepting said license under the terms and conditions set
forth herein.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor and City covenant and agree as follows:
I. Grant of License. Grantor, subject to the terms and conditions hereinafter set
forth, does hereby authorize the City, and during periods of construction, its contractors, to
utilize the License Area for the uses as permitted herein. Otherwise, this Agreement shall not be
assignable except with the express advance written permission of Grantor.
2. Use. City may use the License Area for activities related to the construction of a
project commonly known as the Puppy Smith Storm Water Project as described and shown on
Exhibit Bippended hereto and made a part hereof. "Construction" as and wherever said term is
employed herein, shall mean all of the. activity as contemplated in the project plan as more fully
described and depicted on Exhibit B-:-I It is expressly stipulated that the use of the License Area
is to be strictly private and use of the License Area shall not be a public use. This grant of a
license is subject to all outstanding superior rights, recorded and unrecorded, and the right of the
ACES to renew and extend the same. This license shall include all activity reasonably necessary
to complete the improvements contemplated on Exhibit B;\ncluding grading, access, staging,
excavation, digging, dredging, planting, reseeding and re-grading.
3. Term. The term of this License shall be temporary and shall be for the time
period of July 1, 2006 through November 30, 2007. Unless extended, superseded or replaced by
subsequent document, this Agreement shall automatically terminate and be of no further force
and effect on the end of the term hereof.
4.
following:
",
Conditions. This License Agreement is specifically conditioned upon the
a. City hereby agrees to make all improvements upon the License Area in
accordance with the technical specifications and drawings appended hereto as
Exhibit B.""\ City shall be responsible for all costs associated with said
improvements along with contracting for said work and managing all contracts
and work associated with said improvements. The City acknowledges that
Grantor operates an environmental educational facility adjacent the License Area.
All work associated with the improvements shall be managed so as to minimize
the impacts on the operation of Grantor's facilities and programs on property
adjacent the License Area,
b. Prior to the start of any work associated with said construction, City shall
meet with representatives of the Grantor to coordinate work, and obtain final
approval of the actual work to be done and the scheduling and management of the
work.
c. At the conclusion of all work, City shall notify Grantor and Grantor shall
have the right to inspect all work performed and to accept the improvements in
conformity with the technical specifications appended hereto as Exhibit B:-l City
hereby agrees to perform any additional work that is reasonably required by the
Grantor to ensure that the contemplated improvements conform to the technical
specifications set forth in Exhibit If" !ppended hereto. Further, the City agrees
to restore any portion of Grantor's Property disturbed during construction
activity as close as reasonably practical to the condition of such property prior to
commencement of construction activity. For example, if the City shall use an
area within Grantor's Property for parking or construction staging, but such
area is not to remain improved pursuant to the plans attached as Exhibit B',1 the
City shall restore such area with plantings, re-grading and re-seeding such that,
to the extent reasonably practicable, the portion of Grantor's Property on which
improvements are not constructed will be restored to its current condition.
d. To the extent permitted by law, the City shall at all times protect,
indemnify, and save harmless Grantor from any and all claims, demands,
judgments, costs, expenses, and all damages of every kind and nature made,
rendered or incurred by or in behalf of any person or corporation whatsoever, in
any manner due to or arising out of any injury to or death of any person, or
damage to property of any person or persons whomever, including the parties
hereto and their officers, families, servants, agents, and employees, in any
manner arising from or growing out of the construction of the contemplated
improvements, or the failure to properly construct said improvements, and from
all costs and expenses, including attorneys fees connected in anywise with the
matters and things contained in this agreement, including any mechanic's lien
claims for unpaid labor, services or materials affecting any of Grantor's
2
aggregate thirty business days), the non-defaulting party shall then and thereafter be free to
pursue any right or remedy allowed by this Agreement or otherwise by law, including the
termination hereof.
7. General Provisions.
a. Controlling Law. The interpretation and performance of this Agreement shall be
governed by the laws of the State of Colorado.
b. Severabilitv. If any provision of this Agreement, or the application thereof to any
person or circumstanc~, is found to be invalid, the remainder of the provisions of this Agreement,
or the application of such provision to persons or circumstances other than those as to which it is
found to be invalid, as the case may be, shall not be affected thereby.
c. Entire Agreement. This instrument sets forth the entire agreement of the parties
with respect to this Agreement and supersedes all prior discussions, negotiations, understandings,
or agreements relating to this Agreement, all of which are merged herein.
d. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
e. Successors. The covenants, terms, conditions, and restrictions of this Agreement
shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal
representatives, heirs, successors, and assigns and shall constitute a servitude running with the
Property during the term hereof.
f. Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
IN WITNESS WHEREOF, the parties hereto have executed the foregoing on the day and
year above first given.
GRANTOR:
ASPEN CENTER FOR ENVIRONMENTAL
STUDIES
By:
homas M. Cardamone, Executive Director
State of Colorado
)
)
)
ss.
County of Pitkin
4
Property. Further, during times of construction, City shall require that all
contractors and subcontractors carry workman's compensation insurance in at
least the statutory amounts and builder's risk insurance in an amount agreeable
to Grantor. Further during periods of construction, the City shall obtain, at its
expense, and keep in full force and effect, with a reputable insurer, general
public liability insurance for the Grantor's Property with a limit of not less than
$1,000,000.00. All said policies shall name Grantor as an additional insured
and the City shall provide Grantor with proof of such insurance.
e. If the City shall fail to locate or construct said improvements in
accordance with the terms and conditions of this agreement and to the entire
satisfaction of Grantor, or shall fail to adjust the improvements to any changes
required by Grantor, or shall in any respect fail to keep and perform any of the
conditions, stipulations, covenants or provisions of this agreement to be kept or
performed by the City, this agreement shall at the option of Grantor be void and
of no effect; and this license shall cease and Grantor shall have the right to
remove any improvements and restore the Licensed Area at any time thereafter
at the sole cost and expense of the City.
5. Notice. Notices and other communications that may be given, or are required to be given
hereunder, shall be in writing and shall be deemed given by the party when delivered personally
or when deposited in the United States mail with sufficient postage affixed and addressed to such
party at the respective address shown below:
CITY OF ASPEN:
City Manager
City of Aspen
130 S. Galena St.
Aspen, CO 81611
GRANTOR:
Aspen Center for Environmental Studies
c/o Tom Cardamone
100 Puppy Smith Street
Aspen, CO 81611
6. Notice of Default, Right to Cure. In the event of any default under the provisions of this
Agreement, the non-defaulting party shall, prior to the exercise of any right or remedy, give the
party alleged to be in default written notice of such default together with right for a period of ten
business days after receipt of such notice to cure said default. If an alleged default by its nature
is not capable of being cured within such time period, the party alleged to be in default shall,
provided such party is proceeding with all due diligence, have up to an additional twenty
business days to cure said default. If a default is not cured within the time provided or any
extension thereof (which right to cure period shall not under any circumstances exceed in the
3
The foregoing instrument was acknowledged before me this U..{.--0 day of June 2006,
by Thomas M. Cardamone as Executive Director of the Aspen Center for Environmental Studies,
a Colorado nonprofit corporation.
WITNESS MY HAND AND OFFICIAL SEAL.
i
,
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My commission expires:
011rt 1=1 '1~L"~
No(ary Pu'blic
CITY OF ^lf~OLORADO
By: ~ tV/.L-/
Title: Cr?7 /L1~_
State of Colorado
)
)
)
ss.
County of Pitkin
.'
~~^~~~~,Omin~gjnstrument wa,f acknowledged before me this 20-1~ day of June,1006,
by ~fx:l,(tM~ the~N~ of the City of Aspen, Colorado.
/,':<,~s.fe.(;'9' 'WITNESS MY HAND AND OFFICIAL SEAL.
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. JAC;<JE \
( lOTH IAN !
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OF COI.O~
My commission expires:
~k ~t;,.
tary Public ,
2ACES~City Construction License Agreement rv.doc
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,
Construction License Agreement
(City as Grantee)
THIS CONSTRUCTION LICENSE AGREEMENT is made and entered into this
f7lrr'" day of June, 2006, by and between Aspen Center for Environmental Studies, a
Colorado nonprofit corporation ("Grantor") and the City of Aspen, a Home Rule Municipality
(hereinafter referred to as "City").
WIlT N E SSE T H:
WHEREAS, Grantor is the owner of certain real propery located in the City of Aspen,
Pitkin County, Colorado, as more fully described in Exhibit A"'and appended hereto ("Grantor's
Property"); and
WHEREAS, Grantor is willing to grant to City a license for the purposes and under
certain terms and conditions set forth herein on such portion of Grant~r's Property as is
reasonably necessary to construct the improvements described on Exhibit B;wd
WHEREAS, City is desirous of accepting said license under the terms and conditions set
forth herein.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor and City covenant and agree as follows:
I. Grant of License. Grantor, subject to the terms and conditions hereinafter set
forth, does hereby authorize the City, and during periods of construction, its contractors, to
utilize the License Area for the uses as permitted herein. Otherwise, this Agreement shall not be
assignable except with the express advance written permission of Grantor.
2. Use, City may use the License Area for activities related to the construction of a
project conamonly known as the Puppy Smith Storm Water Project as described and shown on
Exhibit B"':!ppended hereto and made a part hereof. "Construction" as and wherever said term is
employed herein, shall mean all ofth:/activity as contemplated in the project plan as more fully
described and depicted on Exhibit B,- It is expressly stipulated that the use of the License Area
is to be strictly private and use of the License Area shall not be a public use. This grant of a
license is subject to all outstanding superior rights, recorded and unrecorded, and the right of the
ACES to renew and extend the same. This license shall incluge all activity reasonably necessary
to complete the improvements contemplated on Exhibit B~~ncluding grading, access, staging,
excavation, digging, dredging, planting, reseeding and re-grading.
3. Term. The term of this License shall be temporary and shall be for the time
period of July 1, 2006 through November 30,2007. Unless extended, superseded or replaced by
subsequent document, this Agreement shall automatically terminate and be of no further force
and effect on the end of the term hereof.
4.
following:
~
Conditions. This License Agreement is specifically conditioned upon the
a. City hereby agrees to make all improvements upon the License Area in
accordance rith the technical specifications and drawings appended hereto as
Exhibit B~ City shall be responsible for all costs associated with said
improvements along with contracting for said work and managing all contracts
and work associated with said improvements. The City acknowledges that
Grantor operates an environmental educational facility adjacent the License Area.
All work associated with the improvements shall be managed so as to minimize
the impacts on the operation of Grantor's facilities and programs on property
adjacent the License Area.
b. Prior to the start of any work associated with said construction, City shall
meet with representatives of the Grantor to coordinate work, and obtain final
approval of the actual work to be done and the scheduling and management of the
work.
c. At the conclusion of all work, City shall notify Grantor and Grantor shall
have the right to inspect all work performed and to accept the improvem~ts in
conformity with the technical specifications appended hereto as Exhibit B'7 City
hereby agrees to perform any additional work that is reasonably required by the
Grantor to ensure that the contempla~ed improvements conform to the technical
specifications set forth in Exhibit B .~ppended hereto. Further, the City agrees
to restore any portion of Grantor's Property disturbed during construction
activity as close as reasonably practical to the condition of such property prior to
commencement of construction activity. For example, if the City shall use an
area within Grantor's Property for parking or construction staging, but such
area is not to remain improved pursuant to the plans attached as Exhibit B, the
City shall restore such area with plantings, re-grading and re-seeding such that,
to the extent reasonably practicable, the portion of Grantor's Property on which
improvements are not constructed will be restored to its current condition.
d. To the extent permitted by law, the City shall at all times protect,
indemnify, and save harmless Grantor from any and all claims, demands,
judgments, costs, expenses, and all damages of every kind and nature made,
rendered or incurred by or in behalf of any person or corporation whatsoever, in
any manner due to or arising out of any injury to or death of any person, or
damage to property of any person or persons whomever, including the parties
hereto and their officers, families, servants, agents, and employees, in any
manner arising from or growing out of the construction of the contemplated
improvements, or the failure to properly construct said improvements, and from
all costs and expenses, including attorneys fees connected in anywise with the
matters and things contained in this agreement, including any mechanic's lien
claims for unpaid labor, services or materials affecting any of Grantor's
2
Property. Further, during times of construction, City shall require that all
contractors and subcontractors carry workman's compensation insurance in at
least the statutory amounts and builder's risk insurance in an amount agreeable
to Grantor. Further during periods of construction, the City shall obtain, at its
expense, and keep in full force and effect, with a reputable insurer, general
public liability insurance for the Grantor's Property wi~h a limit of not less than
$1,000,000.00. All said policies shall name Grantor as an additional insured
and the City shall provide Grantor with proof of such insurance.
e. If the City shall fail to locate or construct said improvements in
accordance with the terms and conditions of this agreement and to the entire
satisfaction of Grantor, or shall fail to adjust the improvements to any changes
required by Grantor, or shall in any respect fail to keep and perform any of the
conditions, stipulations, covenants or provisions of this agreement to be kept or
performed by the City, this agreement shall at the option of Grantor be void and
of no effect; and this license shall cease and Grantor shall have the right to
remove any improvements and restore the Licensed Area at any time thereafter
at the sole cost and expense of the City.
5. Notice. Notices and other communications that may be given, or are required to be given
hereunder, shall bein writing and shall be deemed given by the party when delivered personally
or when deposited in the United States mail with sufficient postage affixed and addressed to such
party at the respective address shown below:
CITY OF ASPEN:
City Manager
City of Aspen
130 S. Galena St.
Aspen, CO 81611
GRANTOR:
Aspen Center for Environmental Studies
c/o Tom Cardamone
100 Puppy Smith Street
Aspen, CO 81611
6. Notice of Default, Right to Cure. In the event of any default under the provisions of this
Agreement, the non-defaulting party shall, prior to the exercise of any right or remedy, give the
party alleged to be in default written notice of such default together with right for a period of ten
business days after receipt of such notice to cure said default. If an alleged default by its nature
is not capable of being cured within such time period, the party alleged to be in default shall,
provided such party is proceeding with all due diligence, have up to an additional twenty
business days to cure said default. If a default is not cured within the time provided or any
extension thereof (which right to cure period shall not under any circumstances exceed in the
3
aggregate thirty business days), the non-defaulting party shall then and thereafter be free to
pursue any right or remedy allowed by this Agreement or otherwise by law, including the
termination hereof.
7. General Provisions.
a. Controlling Law. The interpretation and performance of this Agreement shall be
governed by the laws of the State of Colorado.
b. Severabilitv. If any provision of this Agreement, or the application thereof to any
person or circumstance, is found to be invalid, the remainder of the provisions of this Agreement,
or the application of such provision to persons or circumstances other than those as to which it is
found to be invalid, as the case may be, shall not be affected thereby.
c. Entire Agreement. This instrument sets forth the entire agreement of the parties
with respect to this Agreement and supersedes all prior discussions, negotiations, understandings,
or agreements relating to this Agreement, all of which are merged herein.
d. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
e. Successors. The covenants, terms, conditions, and restrictions of this Agreement
shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal
representatives, heirs, successors, and assigns and shall constitute a servitude running with the
Property during the term hereof.
f. Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
IN WITNESS WHEREOF, the parties hereto have executed the foregoing on the day and
year above first given.
GRANTOR:
ASPEN CENTER FOR ENVIRONMENTAL
STUDIES
By:
~ 4 iLL--
omas M. Cardamone, Executive DIrector
State of Colorado
)
)
)
ss.
County of Pitkin
4
The foregoing instrument was acknowledged before me this ~ day of June 2006,
by Thomas M. Cardamone as Executive Director of the Aspen Center for Environmental Studies,
a Colorado nonprofit corporation.
WITNESS MY HAND AND OFFICIAL SEAL.
My commission eXPires:ot(I~ ux> r
;j.{~"" ~.. ~~ /
otary Public
CITY OF A/rVLORADO
By: ~I/~
Title: er~ /1--:;.Pr
State of Colorado
)
)
)
ss.
County of Pitkin
My commission expires: ~/f:f {ZoDt
rrLu ~t,;.
o ary Public
2ACES-Cily Construction License Agreement rV.doc
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