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HomeMy WebLinkAboutagenda.council.regular.20221206AGENDA CITY COUNCIL REGULAR MEETING December 6, 2022 5:00 PM, City Council Chambers 427 Rio Grande Place, Aspen I.Call to Order II.Roll Call III.Scheduled Public Appearances IV.Citizens Comments & Petitions V.Special Orders of the Day ZOOM Join from a PC, Mac, iPad, iPhone or Android device: Please click this URL to join. https://us06web.zoom.us/j/84945607610? pwd=dWRrQnNLU0RtQStUWGV3TUhJa3J1dz09 Passcode: 81611 Or join by phone: Dial(for higher quality, dial a number based on your current location): US: +1 719 359 4580 Webinar ID: 849 4560 7610 Passcode: 81611 International numbers available: https://us06web.zoom.us/u/kxjqLU3go (Time for any citizen to address Council on issues NOT scheduled for a public hearing. Please limit your comments to 3 minutes) a) Councilmembers' and Mayor's Comments b) Agenda Amendments c) City Manager's Comments d) Board Reports 1 VI.Consent Calendar VI.A Resolution #128 Series of 2022 - Mill Levy Adoption for Collection in 2023 VI.B Resolution #137, Series of 2022 - Adoption of an updated IGA for Mental Health Services between Pitkin County, the City of Aspen, the Aspen School District the Town of Snowmass Village and Aspen Valley Hospital VI.C Resolution #141, Series of 2022 - Purchase of Foley 653 Accu-Master AC Front Load Reel Grinder Replacement Machine VI.D Resolution #148, Series of 2022 - CORE 2023 Funding for Foundational Programming VI.E Resolution #151 Series 2022 - Yellow Brick Lease, Ajax Cubs VII.Notice of Call-Up VIII.First Reading of Ordinances IX.Public Hearings X.Action Items XI.Adjournment (These matters may be adopted together by a single motion) 2023 Mill Levy Memo Amended 12.1.22.doc 2023_Mill_Levy_Resolution__Amended_12.1.22 (Final).doc 2022 Mental Health IGA Memo.docx Resolution # 137 (2022) - Mental_Health_IGA .docx Attachment B_ Intergovernmental Agreement for the Purchase of Vital Mental Health Services.pdf Council_Memo_Foley_653.pdf Council Resolution_#2022-141 _Real Grinder_complete.doc Golf_Foley_653_Accu- Master_AC_Front_Load_Reel_Grinder_2022_Contract_Colorado_Golf.doc REMP_CORE_Memo.docx Attachment A - Resolution #148 - Foundational Program Support.docx Attachment B - CORE 2022 Accomplishments.pdf 12.6.2022 Resolution #151 Series 2022 -- Yellow Brick Lease, Ajax Cubs - Memo.docx Resolution #151 (2022) Ajax cubs.doc 12.6.2022 2023 Ajax YB lease signed by Ajax.pdf 2 MEMORANDUM TO: City Council FROM: Pete Strecker, Finance Director THROUGH: Sara Ott, City Manager MEETING DATE: December 6, 2022 RE: Amending 2023 Mill Levies’ Adoption, Resolution #128 (Series 2022) Request of Council: This technical adjustment is needed to the computation of the allowable revenue growth tied to the general purpose mill levy for collection in 2023. The end result of this change is a decrease of the general purpose mill levy from the previously computed 4.351 mills to 4.341 mills. Previous Actions: City Council adopted Resolution 128 (Series 2022 on November 29th for the upcoming collection of the 2022 mill levies. This adoption was necessary in order to certify the mill levy with Pitkin County on or before December 15th. Summary and Background: Unfortunately, staff found a computation error in the calculation of the revenue growth allowance for the general purpose levy, which had a minor effect on the determination of the allowable mill levy. The change needed to remedy this issue results in the mill levy credit increasing to 1.069 mills (previously was 1.059) and thus, a reduction to the final general purpose mill levy from 4.351 to 4.341 mills. The net revenue reduction from this action is roughly $20,000 and immaterial to the property tax revenue expectation overall. REVISED 2023 Tax Rate 2023 Temporary Credit 2023 Mill Levy Rate General Property Tax 5.410 1.069 4.341 Stormwater Fund 0.650 0.000 0.650 Total 6.060 1.069 4.991 2022 Assessed Valuation Updated Mill Levy Rate 2023 Property Tax General Fund $2,008,903,130 2.171 $4,361,329 Asset Management Fund $2,008,903,130 2.170 $4,359,320 Total General Mill Levy 4.341 $8,720,648 Total Stormwater Mill Levy $2,008,903,130 0.650 $1,305,787 Refund/Abatements $2,008,903,130 0.013 $26,116 Total 2023 Property Tax 5.004 $10,052,551 Recommendations: Staff recommends approval of the amended Resolution 128 adopting the mill levies for collection in 2023. City Manager Comments: AMENDED RESOLUTION NO. 128 (SERIES OF 2022) AN AMENDED RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO SETTING THE 2022 MUNICIPAL MILL LEVY RATES AND CERTIFYING SAME TO THE BOARD OF COUNTY COMMISSIONERS FOR PITKIN COUNTY. WHEREAS, the City Manager, designated by Charter to prepare the budget, has prepared and submitted to the Mayor and City Council the Annual Budget for the City of Aspen, Colorado for the fiscal year beginning January 1, 2023 and ending December 31, 2023; and WHEREAS, the net assessed valuation of the taxable property for the year 2022 in the City of Aspen returned by the County Assessor of Pitkin County was certified on November 22, 2022, is the sum of $2,008,903,130; and WHEREAS, the net assessed valuation of taxable property in Aspen decreased approximately 0.3% between 2021 and 2022 assessment years; and WHEREAS, under section 9.9 of its Home Rule Charter, the City of Aspen shall constitute a levy of the property taxes incorporated into its adopted budget; and WHEREAS, a general purpose mill levy has been established at an amount not to exceed 5.410 mills, and is calculated to produce gross ad valorem tax proceeds in the amount of $10,868,166 for collection year 2023; based upon the assessed valuation as determined by the County Assessor, and WHEREAS, a temporary reduction in general property tax collections is desired by the City Council in order to reduce the tax burden on owners of taxable property within the City of Aspen while preserving the City’s ability to increase property taxes to levels previously authorized by City of Aspen voters as described above, and WHEREAS, C.R.S. section 39-1-111.5 authorizes a local government to certify a refund in the form of a temporary property tax credit or a temporary mill levy rate reduction, provided that the certification includes the gross mill levy, the temporary property tax credit or temporary mill levy rate reduction expressed in mill levy equivalents, and the net mill levy and under C.R.S. section 39-1-111.5(4), the Assessor shall, concurrent with delivery of tax warrants to the Treasurer, itemize duly certified temporary property tax credits or temporary mill levy rate reductions in the manner set forth in C.R.S. section 39-1-111.5(2), and under C.R.S. section 39-1-111.5(5) the tax statements shall indicate by footnote which local government mill levies reflect a temporary property tax credit or temporary mill levy rate reduction for the purpose of effecting a refund; and WHEREAS, voter approval on November 6, 2007 established the separate City’s Stormwater Fund mill levy rate at an amount not to exceed 0.650 mils upon each dollar of assessed valuation on all taxable property within the City annually with no date of expiration, permitting collection of property tax revenues in excess of the mill levy limitation provided in Article X, Section 20 or the Colorado Constitution for property tax collection in all future years beginning in 2008; and WHEREAS, said mill levy rate is calculated to produce gross ad valorem tax proceeds in the amount of $1,305,787 for collection year 2023; based upon the net assessed valuation of the City of Aspen as determined by the County Assessor. NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF ASPEN, Colorado hereby approves and adopts the following: SECTION 1 For the purpose of balancing the 2023 budget, and providing a reasonable closing fund balance for said fiscal year, levies the following taxes upon each dollar of the total valuation for assessment of all taxable property within the City of Aspen for the year 2022; that a temporary mill levy rate reduction is authorized; and that the individual mill levies are expressed in terms of the gross mill levy, the temporary mill levy rate reduction shown in mill levy equivalents, and the net mill levy as shown below, which includes a temporary credit of 1.069 mills for the General Purpose mill levy: 2023 Tax Rate 2023 Temporary Credit 2023 Mill Levy Rate General Property Tax 5.410 1.069 4.341 Stormwater Fund 0.650 0.000 0.650 Total 6.060 1.069 4.991 2022 Assessed Valuation Updated Mill Levy Rate 2023 Property Tax General Fund $2,008,903,130 2.171 $4,361,329 Asset Management Fund $2,008,903,130 2.170 $4,359,320 Total General Mill Levy 4.341 $8,720,648 Total Stormwater Mill Levy $2,008,903,130 0.650 $1,305,787 Refund/Abatements $2,008,903,130 0.013 $26,116 Total 2023 Property Tax 5.004 $10,052,551 SECTION 2 The City is hereby directed to certify and deliver this Amended Resolution to the Board of County Commissioners for Pitkin County on or before December 15, 2022. AMENDED AND RE-ADOPTED THIS 6th day of December 2022, ________________________ Torre, Mayor I, Nicole Henning, duly appointed and acting City Clerk of the City of Aspen, Colorado, do hereby certify that the foregoing is a true and correct copy of this Amended Resolution #128, adopted by the City Council at its meeting held on December 6, 2022, which Amended Resolution was adopted subsequent to public hearings on the City of Aspen’s 2023 Municipal Budget and prior to the final day established by law for the certification of the tax levy to Pitkin County, all was required by the Sections 9.8 and 9.9 of the Aspen Home Rule Charter. _______________________ Nicole Henning, City Clerk Page 1 of 3 MEMORANDUM TO: Mayor and City Council FROM: Richard Pryor, Chief of Police THRU: Sara Ott, City Manager DATE OF MEMO: November 14, 2022 MEETING DATE: December 6th , 2022 RE: Resolution # 137, Series of 2022, Approving an update to the Intergovernmental Agreement between Pitkin County, Aspen Valley Hospital, Aspen School District Town of Snowmass Village and the City of Aspen for Mental Health and Substance Use Services REQUEST OF COUNCIL: Staff requests approval of Resolution # 137, Series of 2022 (Attachment “A”), authorizing the execution of an intergovernmental agreement (Attachment “B”) between Pitkin County, Aspen Valley Hospital, Aspen School District, Town of Snowmass Village, and the City of Aspen to continue offering mental health and substance use services in the City of Aspen and Pitkin County. PREVIOUS COUNCIL ACTION: In December 2017 Council approved an initial IGA for calendar year 2018 bringing together multiple community stakeholders and respective funding to collaborate with a single vendor to provide a “Mental Health Continuum of Care.” The IGA was subsequently renewed and approved in 2019, 2020 & 2021. BACKGROUND: Mental health disorders and substance misuse (“Mental Health”) symptoms have a prominent presence in the City of Aspen and Pitkin County communities and have been exacerbated by the COVID-19 pandemic. Taken together, results from the 2017 Regional Community Health Assessment and the 2021 Community Mental Health Assessment show that community members continue to experience a multitude of mental health challenges. While there are many resources along the continuum of care (prevention, intervention, treatment, aftercare) available in the community, there are numerous barriers to utilizing mental health services, including a dearth of providers, long waiting lists, navigating and understanding the mental health system, language barriers, lack of coordinated care, and affordability of care. Funding agencies of Pitkin County engaged in a focused strategic planning process in 2017 with the purpose of rapidly improving access to Mental Health programs and services by changing the way funding is allocated to programs. These funders, originally Pitkin County, Aspen School District, Aspen Valley Hospital, City of Aspen, with the addition of Town of Snowmass Village in 2022 have agreed to collectively pool their funding to support mental health services for specified community mental health coordination, integrated behavioral health care and school- based services. Page 2 of 3 This IGA was updated in 2020 to account for additional funds the City of Aspen had collected through their tobacco tax and contribute to this IGA for Vital Mental Health Services to increase the funding for a school counselor from a .6 FTE to a 1 FTE as well as $31,000 from Pitkin County for employee incentives for the three Minds Springs positions funded through this agreement. A similar funding partnership is to be continued through 2023 as defined in the IGA. Services provided in the past via the IGA have included: 1. A community based mental health team staffed by Mind Springs Health 2. An integrated care team staffed by Mountain Family Health Services 3. School based licensed therapists staffed by Mind Springs Health DISCUSSION - Adjustment to the IGA There is one change to the IGA to account for the addition of the Town of Snowmass Village (TOSV) as a “Participating Member” in the Agreement, with an individual funding level of $80,000. The inclusion of TOSV will provide additional funds, perspective, expertise, and depth in decision-making associated with providing vital mental health services for the community. At the time of writing, the Pitkin County Board of County Commissioners had approved the IGA at second reading at a public hearing on November 2nd 2022. Snowmass Village, Aspen Valley Hospital and Aspen School District are in the process of seeking board approval of the IGA. FINANCIAL/BUDGET IMPACTS: This intergovernmental agreement is for a fourth year of service. Pitkin County will serve as the fiscal agent through the Public Health Department. A procurement process is underway to select a vendor(s) for 2023 services. Participating members agree to provide 2023 funding contributions as follows: Aspen School District $ 90,000 Aspen Valley Hospital $ 73,275 City of Aspen $107,550 Pitkin County Healthy Community Fund $304,985 Town of Snowmass Village $ 80,000 Total $655,810 Additionally, Pitkin County is providing office space at no cost at the Schultz Health and Human Services building and Aspen School District is providing office space for a school therapist at the Aspen Middle School at no cost. City Council continues to fund approximately $99,000 per annum for the Human Services Officer (HSO) position within the Aspen Police Department. In 2021 Council approved funding a second HSO position because of the receipt of Harm Reduction grant funding. The grant is providing approximately 2/3 of the cost of the second HSO with the City of Aspen contributing approximately $34,000 p.a. The HSOs work closely with at-risk populations, including individuals with mental health conditions and has a very close working relationship with Mind Springs Health in implementing aspects of the Mental Health Continuum of Care as well as the Co-Responder Program (PACT). Page 3 of 3 RECOMMENDATION: Staff recommend that: • City Council enter into the intergovernmental agreement that includes the Town of Snowmass Village as an added partner and provide Pitkin County, as fiscal agent, payment of $107,550 for 2023 services. ALTERNATIVES: City Council could elect to revert to a system of fragmented funding to mental health and substance use organizations or could elect to not distribute funds to any organization. CITY MANAGER COMMENTS: ATTACHMENTS: Attachment A: Resolution # 137, Series of 2022 Attachment B: Proposed Intergovernmental Agreement ATTACHMENT A RESOLUTION NO. 137 SERIES OF 2022 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AN UPDATED INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, ASPEN VALLEY HOSPITAL, ASPEN SCHOOL DISTRICT, TOWN OF SNOWMASS VILLAGE AND PITKIN COUNTY, COLORADO FOR MENTAL HEALTH AND SUBSTANCE USE SERVICES AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID DOCUMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council an updated intergovernmental agreement for mental health and substance use services, a draft copy of which document is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves an updated intergovernmental agreement between the City of Aspen, Aspen Valley Hospital, Aspen School District, Town of Snowmass Village and Pitkin County for mental health and substance use services, a draft copy of which document is annexed hereto, and does hereby authorize the City Manager of the City of Aspen to execute a final agreement on behalf of the City of Aspen, in substantially the same form as attached hereto, subject to final approval by the City Manager and City Attorney. RESOLVED, APPROVED, AND ADOPTED this 6th day of December 2022, by the City Council for the City of Aspen, Colorado. ___________________________ Torre, Mayor I, Nicole Henning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held December 6, 2022. _____________________________ Nicole Henning, City Clerk Attachment B INTERGOVERNMENTAL AGREEMENT FOR THE PURCHASE OF VITAL MENTAL HEALTH SERVICES PROVIDED BY SELECTED VENDOR THIS INTERGOVERNMENTAL AGREEMENT (the “Agreement”) is made this ______ day of ____________________, 2022 by and between the Board of County Commissioners of Pitkin County, Colorado, whose address is 530 East Main Street, Suite 302 Aspen, Colorado 81611 ("the County”), Aspen School District (“ASD”), Aspen Valley Hospital (“AVH”), City of Aspen (“COA”), and Town of Snowmass Village (“TOSV”) hereinafter severally referred to by name or collectively as the “Participating Members”. RECITALS WHEREAS, This Agreement is entered into pursuant to, inter alia, C.R.S. §§ 29-1-201, et seq., and Article XIV, Section 18 of the Colorado Constitution. WHEREAS, Mental health disorders and substance misuse (“Mental Health”) symptoms have a prominent presence in the Pitkin County community and have been exacerbated by the COVID-19 pandemic. Taken together, the results from the 2017 Regional Community Health Assessment and the 2021 Community Mental Health Assessment show that community members continue to experience a multitude of mental health challenges. While there are many resources along the continuum of care (prevention, intervention, treatment, aftercare) available in the community, there are numerous barriers to utilizing mental health services, including a dearth of providers, long waiting lists, navigating and understanding the mental health system, language barriers, lack of coordinated care, and affordability of care. WHEREAS, Funding agencies of Pitkin County engaged in a focused strategic planning process in 2017 with the purpose of rapidly improving access to Mental Health programs and services by changing the way funding is allocated to programs. These Funders, originally Pitkin County, Aspen School District, Aspen Valley Hospital, City of Aspen, with the addition of Town of Snowmass Village in 2022 have committed to using funding strategically to strengthen the system of care and improve service delivery. WHEREAS, Participating Members agreed to collectively pool their funding in 2023 to support Mental Health Services for specified community mental health, system coordination, integrated behavioral health care and school based services. WHEREAS, Participating Members have agreed to enter the contract with the current Vendor, with use of individual funding levels identified under “Agreement” Heading of page 4, Section 3 “Funding Allocation”, Subsection B “Cash Funding”. WHEREAS, Participating Members do hereby collectively determine and declare that this Intergovernmental Agreement is necessary, proper and convenient for the continued fostering and preservation of the public health, safety and wellbeing. Attachment B AGREEMENT NOW, THEREFORE, for and in consideration of the mutual promises and agreements of the parties and other good and valuable consideration, the adequacy and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Effective _____________, except as expressly provided herein, this Agreement shall replace and supersede all prior agreements of any kind between all or any of the Participating Members and any or all other Participating Members hereto, to the extent and for the limited purpose as such other agreements may be related to the provision of funding collaborative and integrated mental health and substance use prevention, intervention, crisis stabilization, treatment and case management programs. 2. Effective _____________, Pitkin County will be the fiscal agent providing payment to vendors selected in RFP process in the amount of $655,810 in 2023 for collaborative and integrated mental health and substance use prevention, intervention, crisis stabilization, treatment, and case management programs per the contract and approved in the County's 2023 budget. Once invoiced by Pitkin County in Quarter one, Participating Members agree to pay in full. 3. Funding Allocation. The Participating Members agree to provide funding in return for collaborative and integrated mental health and substance use prevention, intervention, crisis stabilization, treatment and case management programs as follows. By October each year, the selected vendor will provide the County with a budget to fund collaborative and integrated mental health and substance use prevention, intervention, crisis stabilization, treatment, and case management programs for the next fiscal year. Participating Members will decide funding allocation each October for use during the next fiscal year. Use of funds will be established using majority vote, with representation from each funding organization. The share for each entity will be determined as follows: . In-Kind Contributions: i. Aspen School District shall provide, at no cost, space on the school campus for 3 youth and family clinicians serving the In- School Therapy program. The value of this space is recognized as $60,000 per year. b. Cash Funding: i. Aspen Valley Hospital agrees to pay $73,275 for the provision of Vital Mental Health services provided by the Vendor, as well Attachment B as the personnel approved to administer the Mental Health Access Program. ii. Aspen School District agrees to pay $90,000 for the provision of Vital Mental Health services provided by the Vendor, as well as the personnel approved to administer the Mental Health Access Program. iii. City of Aspen agrees to pay $107,550 for the provision of Vital Mental Health services provided by the Vendor, as well as the personnel approved to administer the Mental Health Access Program. iv. Pitkin County agrees to pay $304,985 for the provision of Vital Mental Health services provided by the Vendor, as well as the personnel approved to administer the Mental Health Access Program. v. Town of Snowmass Village agrees to pay $80,000 for the provision of Vital Mental Health services provided by the Vendor, as well as the personnel approved to administer the Mental Health Access Program. c. Use of Excess Funds: i. Savings from prior year’s contract is to be held in an assigned fund balance. Decision making for use of funds, which may include direct use of the funds or return of the funds, will be established by common consensus of all Participating Members annually. 4. Quality Assurance. Participating Members are committed to working together to ensure that relevant performance measures are utilized for the purpose of ongoing evaluation of services. a. Pitkin County Human Services will be responsible for contract compliance with the Vendor. b. The Steering Committee agrees to meet quarterly to review performance measures, financial expenditure and budget compliance. c. Participating Members agree to assign staff to participate in operational groups with the Vendor. d. Participating Members agree to support this effort by participating in data gathering efforts to understand service delivery and outcomes. Attachment B e. Participating Members agree to advocate for, and hold the Vendor accountable in meeting equity expectations as outlined in the Scope of Work. 5. Term and Extensions. This Agreement shall commence upon the date first written above, and shall continue for two years from that date. This Agreement may be renewed with the written consent of all Participating Members annually by December 31st. 6. Assignability. This agreement is not assignable by either party. 7. Modification. This Agreement may be changed or modified only in writing by an agreement approved by the respective Boards of the Governments and signed by authorized officers of each party. 8. Entire Agreement. This Agreement constitutes the entire Agreement between the parties and all other promises and agreements relating to the subject of this Agreement, whether oral or written, are merged herein. 9. Severability. Should any one or more sections or provisions of this Agreement be judicially adjudged invalid or unenforceable, such judgment shall not affect, impair, or invalidate the remaining provisions of this Agreement, the intention being that the various sections and provisions hereof are severable. 10. Termination Prior to Expiration of Term. Any Party has the right to terminate or withdraw from this Agreement, with or without cause, by giving written notice to the other Parties of such termination and specifying the effective date thereof. Such notice shall be given at least ten (10) days before the effective date of such termination. Termination of the Agreement relieves the cancelling or withdrawing Party of any further responsibility under this Agreement except for specifically identified obligations of a continuing nature based upon past performance under the Agreement. 11. Notice. Any notice required or permitted under this Agreement shall be in writing and shall be provided by electronic delivery to the e-mail addresses set forth below and by one of the following methods 1) hand-delivery or 2) registered or certified mail, postage pre-paid to the mailing addresses set forth below. Each party by notice sent under this paragraph may change the address to which future notices should be sent. Electronic delivery of notices shall be considered delivered upon receipt of confirmation of delivery on the part of the sender. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process. Attachment B To: Pitkin County With copies to: Jon Peacock, County Manager Pitkin County Attorney’s Office 530 East Main Street, Ste. 302 530 East Main Street, Ste. 301 Aspen, CO 81611 Aspen, CO 81611 jon.peacock@pitkincounty.com attorney@pitkincounty.com To: Aspen Valley Hospital With copies to: Dave Ressler, CEO Aspen Valley Hospital Attorney 0401 Castle Creek Road 0401 Castle Creek Road Aspen, CO 81611 Aspen, CO 81611 dressler@aspenhospital.org generalcounsel@aspenhospital.org To: City of Aspen With copies to: Sara Ott, City Manager City of Aspen Attorney 130 South Galena Street 130 South Galena Street Aspen, CO 81611 Aspen, CO 81611 sara.ott@aspen.gov attorney@aspen.gov To: Aspen School District With copies to: David Baugh, Superintendent Aspen School District Attorney 235 High School Road 235 High School Road Aspen, CO 81611 Aspen, CO 81611 dbaugh@aspenk12.net attorney@aspenk12.net To: Town of Snowmass Village With copies to: Clint Kinney, Town Manager John Dresser, Town Attorney 130 Kearns Road 130 Kearns Road P.O. Box 5010 P.O. Box 5010 Snowmass Village, CO 81615 Snowmass Village, CO 81615 ckinney@tosv.com jdresser@tosv.com 12. Government Immunity. The parties agree and understand that both parties are relying on and do not waive, by any provisions of this Agreement, the monetary limitations or terms or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. 24-10-101, et seq., as from time to time amended or otherwise available to the parties or any of their officers, agents, or employees. 13. Current Year Obligations. The parties acknowledge and agree that any payments provided for hereunder or requirements for future appropriations shall constitute Attachment B only currently budgeted expenditures of the parties. The parties’ obligations under this Agreement are subject to each individual party’s annual right to budget and appropriate the sums necessary to provide the services set forth herein. No provision of this Agreement shall be construed or interpreted as creating a multiple fiscal year direct or indirect debt or other financial obligation of either or both parties within the meaning of any constitutional or statutory debt limitation. This Agreement shall not be construed to pledge or create a lien on any class or source of either parties’ bonds or any obligations payable from any class or source of each individual party’s money. 14. Binding Rights and Obligations. The rights and obligations of the parties under this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. 15. Agreement made in Colorado. This Agreement shall be construed according to the laws of the State of Colorado, and venue for any action shall be in the District Court in and for Pitkin County, Colorado. 16. Attorney Fees. In the event that legal action is necessary to enforce any of the provisions of this Agreement, the substantially prevailing party, whether by final judgment or out of court settlement, shall recover from the other party all costs and expenses of such action or suit including reasonable attorney fees. 17. No Waiver. The waiver by any party to this Agreement of any term or condition of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party. 18. Authority. Each person signing this Agreement represents and warrants that said person is fully authorized to enter into and execute this Agreement and to bind the party it represents to the terms and conditions hereof. The foregoing Agreement is approved by the Board of County Commissioners of Pitkin County, Colorado at its regular meeting held on the _____ day of , 2022. The foregoing Agreement is approved by Aspen School District at its regular meeting held on the _____ day of , 2022. The foregoing Agreement is approved by Aspen Valley Hospital at its regular meeting held on the _____ day of , 2022. The foregoing Agreement is approved by City of Aspen at its regular meeting held on the _____ day of , 2022. Attachment B The foregoing Agreement is approved by Town of Snowmass Village at its regular meeting held on the _____ day of , 2022. In Witness whereof, the parties hereto have caused this agreement to be executed as of the day and year first above written. ASPEN SCHOOL DISTRICT By:_________________________ [Title] ASPEN VALLEY HOSPITAL By:_________________________ [Title] CITY OF ASPEN By:_________________________ [Title] TOWN OF SNOWMASS VILLAGE By:_________________________ [Title] BOARD OF COUNTY COMMISSIONERS APPROVED AS TO FORM OF PITKIN COUNTY, COLORADO By:_______________________ By:__________________________ Patti Clapper, Chair John Ely, County Attorney Manager Approval: ATTEST ____________________________ _____________________________ Jon Peacock, County Manager Julia Ely, Deputy County Clerk Form Revised 01-01-2022 MEMORANDUM TO: Mayor and City Council FROM: Jim Pratt, Golf Course Manager Scott Chism, Director of Business Services THROUGH: Austin Weiss, Parks and Recreation Director MEMO DATE: November 28, 2022 MEETING DATE: December 6, 2022 RE: Project # 2022-319 Foley 653 Accu-Master AC Front Load Reel Grinder Replacement REQUEST OF COUNCIL: The Golf Department is seeking City Council approval for a $56,954.17 purchase of a Foley 653 Accu- Master AC Front Load Reel Grinder replacement machine from the vendor, Colorado Golf & Turf. SUMMARY / BACKGROUND: The Aspen Golf Club currently has a reel grinder that is now over 30 years old that is used regularly to sharpen and maintain the blades on the City’s Jacobson mowers. This piece of equipment is imperative to sharpen these reel blades properly and safely. The key safety features that this reel grinder provides that the current one does not include automated infeed cycles, completely enclosed unit with safety doors, automatic reel positions, programmable memory, and internal vacuum system. These features allow the Golf Department’s maintenance staff to perform the sharpening tasks safely and with great efficiency. The proposed reel grinder machine is specific to Jacobson branded lawn mowers, which are the type of mowers owned and utilized by the Aspen Golf Club. The machine procurement is proposed to be sole sourced through Colorado Golf & Turf at a price of $56,954.17 since Colorado Golf & Turf is the distributor of Jacobson and Jacobson support golf equipment in Colorado. The delivery of the Foley 653 Accu-Master AC Front Load Reel Grinder machine will take place 6-10 weeks after approval. DISCUSSION: The Aspen Golf Club has worked closely with the vendor, Colorado Golf & Turf, over many years. Colorado Golf & Turf has built trust that their service and equipment are reliable and efficient. This piece of equipment is essential to daily golf operations and the replacement of this reel grinder is specific to the Jacobson mower equipment used at the Aspen Golf Club. FINANCIAL/BUDGET IMPACTS: The proposed procurement for the Foley 653 Accu-Master AC Front Load Reel Grinder was included in the 2023 golf capital plan and budget, at $54,000. Increases in supply and shipping costs have increased the price of this piece of equipment $2,954.17 over the budgeted allotment, but is not anticipated to cause an issue within the overall budget for the Golf program at this time. ENVIRONMENTAL IMPACTS: The new reel grinder allows for Jacobson mower reels to be sharpened more safely and utilizing less energy. This reel grinder features a new 2-minute spin grind setting that sharpens reels quicker and more precisely. The City’s mowers will in turn utilize less energy to mow grass which also reduces our carbon footprint by using less fuel. ALTERNATIVES Should Council elect not to purchase the proposed Foley 653 Accu-Master AC Front Reel Grinder machine, the Aspen Golf Club staff would continue to use the current 30 year-old reel grinder machine with it’s inefficiencies of safety, energy, and additional labor time. STAFF RECOMMENDATIONS: Staff recommends approval of Project #2022-319 in the value of $56,954.17 to upgrade and purchase the Foley 653 Accu-Master AC Front Load Reel Grinder. CITY MANAGER COMMENTS: RESOLUTION #141 (Series of 2022) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND COLORADO GOLF & TURF, AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS there has been submitted to the City Council a Contract between the City of Aspen and Colorado Golf & Turf for the sole source purchase of a Foley 653 Accu-Master AC Font Load Reel Grinder machine. A true and accurate copy of which is attached hereto as Exhibit “A”. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract Order for, $56,954.17 between the City of Aspen and Colorado Golf & Turf, a copy of which is annexed hereto and incorporated herein and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 6th day of December, 2022. Torre, Mayor I, Nicole Henning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, December 6th, 2022. Nicole Henning, City Clerk DocuSign Envelope ID: 205E3599-F76E-4F22-AB6C-2234FAD03DC2 DocuSign Envelope ID: E3EDCD73-5533-4F99-A876-6AF266258545 See attached quote from Colorado Golf and Turf CITY OF ASPEN STANDARD FORM OF AGREEMENT SUPPLY PROCUREMENT City of Aspen Project No.: _2022-319. AGREEMENT made as of 9th day of November, in the year 2022. BETWEEN the City: Contract Amount: And the Vendor: Summary Description of Items to be Purchased: Exhibits appended and made a part of this Agreement: The City and Vendor agree as set forth below. Total: $56,954.17 Colorado Golf and Turf c/o Kyle Postlethwaite 11757 S. Wadsworth Blvd. Littleton, CO 80125 New Foley 653 Accu-Master AC Front Reel Grinder; replacement of 30 year-old machine. If this Agreement requires the City to pay an amount of money in excess of $50,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. City Council Approval: Date: Resolution No.: The City of Aspen c/o Jim Pratt 427 Rio Grande Place Aspen, Colorado 81611 Phone: (970) 920-5055 DocuSign Envelope ID: 205E3599-F76E-4F22-AB6C-2234FAD03DC2 DocuSign Envelope ID: E3EDCD73-5533-4F99-A876-6AF266258545 1. Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A appended hereto and by this reference incorporated herein as if fully set forth here for the sum set forth hereinabove. 2. Delivery. (FOB 39551 Hwy 82, Aspen, CO 81611) [Delivery Address] 3. Contract Documents. This Agreement shall include all Contract Documents as the same are listed in the Invitation to Bid and said Contract Document are hereby made a part of this Agreement as if fully set out at length herein. 4. Warranties. 5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Vendor respectively and their agents, representatives, employee, successors, assigns and legal representatives. Neither the City nor the Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder without the written consent of the other party. 6. Third Parties. 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 Vendor or City may assign this Agreement in accordance with the specific written permission, any right to claim damages or to bring any suit, action or other proceeding against either the City or Vendor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 7. Waivers. No waiver of default by either party of any of the 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. 8. Agreement Made in Colorado. The parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 9. Attorney’s Fees. In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney’s fees. 10. Waiver of Presumption. This Agreement was negotiated and reviewed 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 the Agreement. 11. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is DocuSign Envelope ID: 205E3599-F76E-4F22-AB6C-2234FAD03DC2 DocuSign Envelope ID: E3EDCD73-5533-4F99-A876-6AF266258545 presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that Vendor or any lower tier participant was unable to certify to the statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 12. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest. (A) Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Vendor for the purpose of securing business. (B) Vendor agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (C) Vendor represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (D) In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a vendor, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Vendor; and 4. Recover such value from the offending parties. 13. Termination for Default or for Convenience of City. The sale contemplated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 14. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City using state or federal funds to meet its DocuSign Envelope ID: 205E3599-F76E-4F22-AB6C-2234FAD03DC2 DocuSign Envelope ID: E3EDCD73-5533-4F99-A876-6AF266258545 obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 15. City Council Approval. If this Agreement requires the City to pay an amount of money in excess of $50,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 16. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform under this Agreement. Vendor agrees to meet all of the requirements of City’s municipal code, section 13-98, pertaining to nondiscrimination in employment. Vendor further agrees to comply with the letter and the spirit of the Colorado Antidiscrimination Act of 1957, as amended and other applicable state and federal laws respecting discrimination and unfair employment practices. 17. Integration and Modification. This written Agreement along with all Contract Documents shall constitute the contract between the parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, vendor understands that no City official or employee, other than the Mayor and City Council acting as a body at a council meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on behalf of the City. Any such Agreement or modification to this Agreement must be in writing and be executed by the parties hereto. 18. Authorized Representative. The undersigned representative of Vendor, as an inducement to the City to execute this Agreement, represents that he/she is an authorized representative of Vendor for the purposes of executing this Agreement and that he/she has full and complete authority to enter into this Agreement for the terms and conditions specified herein. 19. Electronic Signatures and Electronic Records This Agreement and any amendments hereto may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement binding on the Parties, notwithstanding the possible event that all Parties may not have signed the same counterpart. Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope of Work, and any other documents requiring a signature hereunder, may be signed electronically in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a paper copy of a document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original. IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement to be duly executed the day and year first herein, of which, to all intents and purposes, shall be considered as the original. DocuSign Envelope ID: 205E3599-F76E-4F22-AB6C-2234FAD03DC2 DocuSign Envelope ID: E3EDCD73-5533-4F99-A876-6AF266258545 FOR THE CITY OF ASPEN: By: Aspen City Manager Date Approved as to form: City Attorney’s Office SUPPLIER: By:Kyle Postlethwaite Turf Equipment Sales Title 11/10/2022 | 4:19:13 PM MST Date DocuSign Envelope ID: 205E3599-F76E-4F22-AB6C-2234FAD03DC2 DocuSign Envelope ID: E3EDCD73-5533-4F99-A876-6AF266258545 Exhibit A 11757 S. Wadsworth Blvd. Littleton, CO 80125 Phone: (303)761-3332 Toll Free: (800)634-7823 Fax: (303)781-3372 QUOTATION TO: Aspen Golf Club RE: Foley 653 Accu-Master AC Front Load Reel Grinder 39551 Highway 82 Aspen, CO 81611 ATTN: Curt Gosnell E-MAIL: curt.gosnell@cityofaspen.com PHONE: 970-274-1565 DATE: 10/17/2022 DELIVERY: TBD FOB: CGT VIA: CGT SALESMAN: Kyle Postlethwaite QUANTITY ITEM NUMBER DESCRIPTION UNIT PRICE AMOUNT 1 NEW Foley 653 Accu-Master AC Front Load Reel Grinder $54,775.00 $54,775.00 Accu-Touch 3 Controls Automated Infeed Cycles for Spin and Auto-Index Relief Grinding Completely Enclosed with Safety Glass Doors Automatic Reel Positions Pre-Programmed Settings / Programmable memory Internal Vacuum System 1 Additional Accessories: Boom & Electric Hoist (Front Loading) $2,179.17 $2,179.17 SUBTOTAL $56,954.17 TOTAL PRICE $56,954.17 ***This quote is valid for 30 days. The above total does not include any applicable state and local sales or use taxes*** **Pricing is subject to manufacturer surcharge(s) at time of delivery** BY: Kyle Postlethwaite PHONE: (303)761-3332 ACCEPTED BY: DATE: MEMORANDUM TO: Mayor Torre and City Council FROM: Tessa Schreiner, Sustainability Manager THRU: CJ Oliver, Environmental Health and Sustainability Director; Phillip Supino, Community Development Director MEMO DATE: November 25, 2022 MEETING DATE: December 6, 2022 RE: CORE 2023 Funding for Foundational Programming REQUEST OF COUNCIL: This memo and attached resolution are required for administrative purposes. Each year, City Council approves the use of Renewable Energy Mitigation Program funds by the Community Office for Resource Efficiency (CORE) during City Council’s annual budget approval process (fall 2022). Additional approval is then required, via resolution, to add detail to how the REMP funding will be managed and applied across the community. Staff requests City Council’s approval of the attached Resolution #148_2022 that details the planned expenditures for Renewable Energy Mitigation Program (REMP) funds by CORE in 2023. This request is for $850,000 to support CORE’s carbon emissions reduction programs. This funding amount was approved by City Council during the annual budget process. SUMMARY AND BACKGROUND: REMP funds are collected by the City of Aspen for projects when on-site mitigation with renewable energy systems is not an option to offset excess energy use from snowmelt, hot tubs or spas. These funds are then held by the City of Aspen and authorized by City Council for use on projects that reduce greenhouse gas emissions across the community. CORE was established in 1994 by a group of visionary citizens, local governments, and utilities to help the community save energy and cut carbon emissions to mitigate climate change. CORE’s mission, updated in 2019, is ‘Leading the Roaring Fork Valley to a net- zero carbon free future’. CORE also supports innovative technologies to achieve these reductions and drive regional change. Key CORE Accomplishments in 2022: • CORE launched a new fundraising initiative in 2022, securing $460,000 to date and another $450,000 pledged in 2023. • CORE’s marketing and outreach efforts in 2022 achieved 26 newspaper articles, including 17 earned articles and one guest commentary, as well as 21,000+ reached through social media and newspaper advertising. • CORE helped homeowners complete projects saving them a total of $186,255/year in utility bills. • CORE provided 91 free energy assessments and over $90,000 in grants to APCHA homeowners • CORE collaborated with the City of Aspen to implement the City's Building IQ program. To date, over 20 large commercial buildings have received energy assessments and provided CORE with their utility usage data. For more information on CORE’s accomplishments, see Attachment B. DISCUSSION: CORE governance and staff leadership have engaged in a significant strategic and operational pivot to achieve greater sustainable mission impact in the coming years. Following months of organizational assessments and operational shifts with the support of a transitional executive leadership consultant, in August 2022, the CORE Board selected a new CEO, Dallas Blaney. Dallas’s focus since August has been to expand funding diversification, develop a 3-5 year strategic plan for CORE, and focus climate action initiatives around high-impact opportunities and strengthen transparency and accountability, CORE’s 2023 Workplan: • Implement the Building IQ program in partnership with City of Aspen. • Identify and offer technical assistance and incentives for commercial and residential energy efficiency projects (public, private and non-profit) with a focus on accessibility for LMI/Income Qualified residential in partnership with APCHA. • Further develop long range alternative fund development strategies to sustainably increase non-REMP funds by 2023. • Deliver enhanced marketing, communications and engagement capacity through CORE’s Energy Concierge and automated web-based support resources and refined social media and web presence. FINANCIAL IMPACTS: CORE has requested funding from REMP in the amount of $850,000 and this amount was adopted in the 2023 City of Aspen budget. This more detailed accounting of how the funds will be prioritized provides City Council with the confidence that REMP funds are being used to dramatically reduce greenhouse gas emissions in the community and are delivering on Aspen City Council’s goals. ENVIRONMENTAL IMPACTS: The environmental impact will be a decrease in carbon emissions in the Roaring Fork Valley. In 2022, CORE’s goal for emissions reduction was 1,035 MtCo2e, which has already been exceeded. Attachments: Attachment A: Resolution #148, Series 2022 Attachment B: CORE 2022 Accomplishments Graphic City Manager Comments: 1 RESOLUTION #148 (Series of 2022) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AUTHORIZING THE EXPENDITURE OF FUNDS GENERATED THROUGH THE RENEWABLE ENERGY MITIGATION PROGRAM. WHEREAS, on December 13, 1999, the City Council approved Ordinance No. 55 Adopting the Aspen/Pitkin Energy Conservation Code; and WHEREAS, the Aspen/Pitkin Energy Conservation Code allows that funds collected through the Renewable Energy Mitigation Program (REMP) be spent in accordance with a resolution passed by the Aspen City Council; and WHEREAS, the Community Office for Resource Efficiency (CORE) uses REMP funds to support City Council’s carbon reduction goals and community greenhouse gas emissions reductions through the delivery of programs, tools, and services; and WHEREAS, the specific funding amounts total $850,000 and are assigned in the following way: ● Energy Efficiency (Commercial & Residential) $487,000 ● Outreach, Engagement, Planning & Consultation $225,000 ● Indirect/Administrative Overhead $88,000 ● Small Lodge Energy Efficiency Program (SLEEP) $50,000 WHEREAS, the City Council of the City of Aspen finds that the funding requests are appropriate; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves the funding allocation to the Community Office for Resource Efficiency that sets forth the terms and conditions of the use of Renewable Energy Mitigation Program funds, a description of which is incorporated herein. Dated: December 6, 2022 ______________________________ Torre, Mayor 2 I, Nicole Henning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held December 6, 2022. ______________________________ Nicole Henning, City Clerk Taking Action Thriving Community Making a Big Impact: CORE’s 2022 Successes You live here because you love the stunning natural environment. It’s awe-inspiring. It’s your home. And it’s irreplaceable. Help us protect this extraordinary place. *Numbers were calculated from 1/1/22 - 10/31/22 IMPROVING OUR QUALITY OF LIFE CORE SAVED Homeowners $186,255Making It Easier to Live Here CORE PARTNERED with APCHA to Offer91 FREE Energy Assessments Aspencore.org Taking Action Innovation MASSIVE, NEW SOLUTIONS TO REACH CLIMATE GOALS Sustainable Future SAVED 4,846 Metric Tons of CO2 = Burning 585,000 Gallons of Gas 1.3M F3 Methane Escaping Per Day 500 Cars On the RoadPer Day HELPED BUSINESSES IMPROVE THEIR BOTTOM LINE SLOWING THE PACE OF CLIMATE CHANGE $601,733 for Commercial Energy E ciency Projects PROVIDED 27Commercial Energy Assessments REGIONALLY - Preventing greenhouse gasses from escaping the Coal Basin Mine Complex and polluting our air. LOCALLY - Connecting partners to modernize the energy system. CORE_Annual Appeal Infographic.FFO.indd 1 11/9/22 12:29 PM MEMORANDUM TO: City Council FROM: Kids First - Nancy Nichols and Megan Monaghan THROUGH: Diane Foster, Assistant City Manager Sara Ott, City Manager MEMO DATE: November 28th, 2022 MEETING DATE: December 6th, 2022 RE: Resolution # 151 of 2022 Ajax Cubs lease REQUEST OF COUNCIL: Please consider Resolution # 151 of 2022, approving a three- year lease option for of space including rooms 2, 4, 5,6 and storage space in the Yellow Brick for Ajax Cubs. SUMMARY AND BACKGROUND: In October 2022 Kids First received an operations proposal from Ajax Cubs in response to RFP – Early Childhood Organization to operate three room at the Yellow Brick. Ajax Cubs has agreed to operate four classrooms at the Yellow Brick and would like to secure a lease for the first year 2023 and have the option for two, 1-year lease terms. The lease will require Ajax Cubs to give notice in writing 60 days in advance with their intent to extend the lease for an additional year. By securing a lese with these terms Ajax Cubs will operate a full-time childcare program increasing childcare capacity at the Yellow Brick beginning January 2023 and ensure that Ajax Cubs has the first option to continue care as agreed in the lease. DISCUSSION: As part of their bi-annual goal setting, on August 10, 2021, City Council adopted Resolution #76_Series 2021, which directed staff to increase the number of available childcare spaces. This will be accomplished through: 1. Plan, design to repurpose or build new buildings to add physical capacity to increase available childcare space. 2. Increase the recruitment and retention of qualified early childhood teachers. 3. Generate funding to support the development of new childcare spaces. The Kids First Advisory Board, in support of Council’s capacity goal, directed staff to secure a Yellow Brick lease for the spaces that include rooms 2, 4, 5 and 6 and that the lease would require this tenant to provide care five days a week effective January 1, 2023. The impact of four new childcare classrooms for children ages 3 months to 5 years will be felt through available care for approximately 40 or more children. With care being offered a minimum of 200 days a year. A lease with Ajax Cubs will offer greatly needed capacity that was lost with the closing of Playgroup Aspen in July 2022. Reasons to consider approving this request: • The lease will secure a new childcare provider, Ajax Cubs, who will provide childcare at the Yellow Brick for a minimum of 1 year, with extensions anticipated and as an option to the lease. • Ajax Cubs will be operating a minimum of 5 days a week with hours including a minimum of 8:00am to 4:00pm daily, for a minimum of 200 days a year. • Ajax Cubs has experience providing childcare in this community and will offer quality childcare that is desperately needed. Reasons to consider denying this request: • Offering a lease with this option doesn’t allow for changes in the lease for the next 3 years. FINANCIAL IMPACTS: The financial impact, would increase recently lost revenue for the operation of the Yellow Brick. ENVIRONMENTAL IMPACTS: With a new childcare program at the Yellow Brick building there will be an increased number of car trips by families to and from the facility for daily drop off and pick up. ALTERNATIVES: City Council could deny this request. Ajax Cubs could choose to operate at a different location. RECOMMENDATIONS: Staff recommends City Council approve this request for Ajax Cubs one year lease with the option to extend yearly for 2 years. The lease can be found in Exhibit A. CITY MANAGER COMMENTS: RESOLUTION #151 (Series of 2022) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF ASPEN AND AJAX CUBS, LLC, AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID LEASE AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a Lease Agreement for lease of space at the Yellow Brick between the City of Aspen and Ajax Cubs, LLC, a true and accurate copy of which is attached hereto as Exhibit “A”. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Lease Agreement between the City of Aspen and Ajax Cubs, LLC, a copy of which is annexed hereto and incorporated herein and does hereby authorize the City Manager to execute said Lease Agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 6th day of December 2022. Torre, Mayor I, Nicole Henning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held December 6, 2022. Nicole Henning, City Clerk 1 YELLOW BRICK LEASE AGREEMENT BETWEEN THE CITY OF ASPEN AND Ajax Cubs This LEASE AGREEMENT, made and entered into this _________________________ the City of Aspen (hereinafter referred to as "Landlord"), whose address is 427 Rio Grande Place., Aspen, Colorado, 81611 and Ajax Cubs (hereinafter referred to as "Tenant") whose address is 215 N. Garmisch, Aspen, Co. WITNESSETH: Section 1. Leased Premises. In consideration of the mutual covenants and agreements set forth herein Landlord does hereby lease to Tenant and Tenant does hereby rent from Landlord the following described Leased Premises ("Leased Premises”) within the City owned building located at 215 N. Garmisch Street, Aspen, CO (“Building”). Monthly rent and pro-rated shares of utilities will be billed monthly to the tenant. Square Footage Rent for 2022- 23 space Rent 2023- 2025 Annual sum Annual Rounded Monthly Monthly Rounded Classroom 4 827 11.00 11.34 9378.18 9379.00 781.58 782.00 11.68 9659.53 9660.00 805.00 805.00 12.03 9949.15 9950.00 829.17 830.00 Classroom 5 784 11.00 11.34 8890.56 8891.00 740.92 741.00 11.68 9157.12 9158.00 763.17 764.00 12.03 9431.83 9432.00 786.00 786.00 Classroom 6 783 11.00 11.34 8879.22 8880.00 740.00 740.00 11.68 9145.44 9146.00 762.17 763.00 12.03 9419.80 9420.00 785.00 785.00 Bath 1 ( 5 & 6) 70 11.00 11.34 793.80 794.00 66.17 67.00 11.68 817.60 818.00 68.17 69.00 12.03 842.13 843.00 70.25 71.00 Classroom 2 823 11.00 11.34 9332.82 9333.00 777.75 778.00 11.68 9612.64 9613.00 801.08 802.00 12.03 9901.02 9902.00 825.17 826.00 Storage 225.00 231.75 2781.00 2781.00 231.75 232.00 238.70 2864.43 2865.00 238.75 239.00 245.86 2950.33 2951.00 245.92 246.00 Totals 2023 40058.00 3338.17 3339.00 Totals 2024 41260.00 3438.33 3439.00 Totals 2025 42498.00 3541.50 3542.00 November 24th, 2022 2 The areas of the Building referred to herein as Common Areas include central hallways, kitchens, east bathrooms, lower-level bathroom, gymnasium, kitchen, and laundry room. Common area does not include classroom space, office space, storage space and bathrooms used entirely by childcare programs and included in your rented premises. Common Areas are provided at no charge for the use by the Building tenants; it is the tenants responsibility to maintain any improvements to the common areas. Examples include but are not limited to sand and play equipment, or appliances. Tenants are not charged for the use of the common space but must work in partnership with other tenants regarding the use of the common space. The Landlord expressly reserves the right to withhold its consent to any change of use or purpose in its unrestricted discretion. Section 2. Term. The Term of this Lease shall commence January 1st, 2023 and shall terminate on December 31, 2023, unless renewed or otherwise terminated as set forth below. The Tenant shall have the right to extend the term of the lease for an additional year, commencing January 1, 2024, and terminating December 31, 2024, by giving notice to the Landlord of the intent to extend the lease in writing no later than October 1, 2023. The Tenant shall have the right to extend the term of the lease for an additional year thereafter, commencing January 1, 2025, and terminating December 31, 2025, by giving notice to the Landlord of the intent to extend the lease in writing no later than October 1, 2024. Section 3. Rent. Tenant shall pay Landlord at the address of the Landlord or at such other place as Landlord may from time to time designate in writing to Tenant, without any prior demand therefore and without any deduction or setoff whatsoever, an annual rental for the Leased Premises in monthly installments in accordance with the following schedule: * Monthly rent and annual rent shall increase by 3% effective January 1 of each year that this lease remains in effect. This annual Rent shall be payable in monthly installments due on the first day of each calendar month during the term hereof without prior demand. Rent shall be delivered or mailed to The City of Aspen/Kids First at 215 N. Garmisch, Suite #1, Aspen, CO 81611 3 Section 4. General Conditions. The parties hereto agree that the General Conditions to the Yellow Brick Lease Agreement appended hereto as Exhibit A is incorporated herein as if fully set forth here and shall constitute essential terms and conditions of this Lease Agreement. IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease Agreement on the day and year first above written. LANDLORD: CITY OF ASPEN By Title: ____________________________ TENANT: _____________________________________ By Title: ___________________________ Owner/Director Owner Ajax Cubs 4 EXHIBIT A GENERAL CONDITIONS TO YELLOW BRICK LEASE AGREEMENT The following General Conditions constitute essential terms and conditions to Lease Agreements governing the rental of space within the City owned Yellow Brick managed by Kids First. Kids First is a childcare resource center that promotes quality, affordable childcare choices in the City of Aspen. It manages the Yellow Brick Center for the City of Aspen and as such, is the Landlord’s designated representative in all matters related to the lease Agreement. ARTICLE I Security Deposit Tenant shall, on or before, the commencement of the Term of the Lease Agreement, deposit with Landlord as security for the performance of all terms, covenants, and conditions of this Lease, the sum of $0.00. This deposit shall be retained by Landlord until the expiration of the Lease, and any renewals or extensions thereof, at which time the deposit shall either be returned to Tenant or retained by Landlord in accordance with the provisions of CRS 38-12-101, et seq. In no way is it understood or to be construed that this security deposit is to be considered as the final rental payment due under this Lease. ARTICLE II Penalties for Late Payment of Rent 1. If the Tenant fails to pay monthly installments of: a. the Rent per Section 3 of the Lease Agreement; or b. the utilities assessment per Section 5 of these General Conditions; or c. the insurance assessment per Section 6; of these General Conditions. d. or the Common Area maintenance assessment per Section 7 of these General Conditions. e. or the tax assessment per Section 8 of these General Conditions. by the tenth (10th) day of the month in which it is due, Tenant shall be responsible for a penalty of an additional five percent (5%) of the monthly Rent. 2. The Landlord need not give any notice to be entitled to this payment, and such additional rentals or penalties shall in no way be construed to limit the Landlord's remedies in the event of such default, which remedies shall in all cases hereunder be deemed to be cumulative. 3. In the event all or part of the Rent as described in Section 1 of this Lease Agreement is delinquent beyond the 30th day of the month in which it is due, the delinquent amount shall bear interest at the rate of one and one-half percent (1.5%) per month. 5 ARTICLE III Utilities. 1. Tenant shall pay to the appropriate utility service provider for all utilities, including but not limited to, trash removal, telephone, water, internet, cable, gas and electricity, separately supplied or separately metered to the Leased Premises. 2. Tenant shall pay to Landlord its pro rata shares of the Common Area utility costs for the Building. The Common Area utility costs shall include gas (heat), electric, water and sewer costs, security measures, and trash removal. The Common Area utility costs shall be payable monthly within ten (10) days of receipt of an invoice from the Landlord. 3. Landlord shall not be liable in damages or otherwise for any interruption or failure of any utility serving the Leased Premises when such interruption or failure is not due to the negligence of Landlord. 4. Tenant further agrees that Tenant will not install any equipment which will exceed or overload the capacity of any utility facility, and that if any equipment installed by Tenant shall require additional utility facilities; the same shall be installed and maintained at Tenant's expense in accordance with the plans and specifications which have received prior written approval by Landlord. ARTICLE IV Insurance 1. Tenant, at its own expense, shall maintain in full force during the Term of the Lease Agreement policies of comprehensive insurance, including property damage, written by one or more responsible insurance companies licensed to do business in Colorado which will insure Tenant, Landlord and the City of Aspen against liability for injury to persons and/or property, and death of any person or persons occurring in or about the Premises. Each policy shall be approved as to form and insurance company by Landlord. The liability under such insurance shall not be less than $1,000,000 for any one person injured or killed, and not less the $1,000,000 for any one accident, and not less than $100,000 property damage. If in the considered opinion of Landlord's insurance advisor, the amount of such coverage is not adequate, Tenant agrees to increase that coverage to such reasonable amounts that Landlord's advisors shall deem adequate. The policies shall name as insured parties, Tenant, Landlord, the City of Aspen and any persons, firms or corporations designated by Landlord, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the Landlord thirty (30) days' prior written notice. A copy of the policy or a certificate of insurance shall be delivered to the Landlord. If Tenant fails to comply with this paragraph, Landlord shall have the right to obtain the said insurance and pay the premiums therefore, and in such event the entire amount of such premium shall be immediately paid by Tenant to Landlord. 2. The Tenant agrees that it will at all times during the lease term maintain in full force and effect on all its furniture, fixtures and equipment in the Leased Premises a policy or policies of fire insurance with the standard extended coverage endorsement attached to the extent of at least eighty percent (80%) of their insurable value, the proceeds of which will, so long as this Lease is in effect, be used for the repair or replacement of fixtures and equipment so insured. It is understood that the Landlord shall have no interest in the insurance upon Tenant's equipment and fixtures and will sign all documents necessary or proper in connection with the settlement of any claim or loss by Tenant. 6 3. Landlord shall pay the cost of fire, casualty, liability, and extended coverage insurance covering the Leased Premises against loss or damage by fire and by other risks now or hereafter embraced by "extended coverage," so called, in amount of the full insurable value of the Leased Premises (both the exclusive and nonexclusive premises.) ARTICLE V Taxes Tenant shall pay before delinquency any and all tax assessments, property taxes levied on its leasehold interest, license fees, and public charges levied or assessed or imposed which become payable during the term hereof upon Tenant's furniture, fixtures, appliances and personal property, installed or located in the Leased Premises. ARTICLE VI Permitted Uses. 1. Tenant shall use the Leased Premises for childcare and for no other purpose without Landlord's written consent. Childcare shall be defined as care for a child aged birth to 5 years, and not having entered Kindergarten. Priority for classroom space shall be determined by the Kids First Advisory Board and approved by Aspen City Council. Leases will be approved for specific ages, scheduling, and numbers of children to be served in each room. Classroom space will be available based on the following performance standards and criterion: The Leased Premises shall be used for in-session childcare a minimum of four days (4) per week Monday through Friday, a minimum of eight (8) hours per day, including the hours of 9:00 am to 4:00 pm of each day, and a minimum of 200 days of operation per year. a. Effective use of the space - Effective use of the space will be based on a monthly average number rather than a percentage, with the following applicable minimums: 1) Preschool classrooms: minimum of 12 children 2) Toddler classroom: minimum of 9 children that includes all children over age 2 3) Toddler classrooms: minimum of 6 children that includes children under age 2 4) Infant classrooms: minimum of 6 children. If a classroom is not filled pursuant to these requirements for a period of 60 days, the Tenant will be required to submit a plan to bring the room back into compliance with this Lease Agreement capacity requirement. Notwithstanding the foregoing, Tenant must use reasonable efforts to attempt to always maintain this capacity requirement. Kids First Advisory Board will determine, in its sole discretion, whether the plan is acceptable and whether Tenant used reasonable efforts to attempt to maintain the required capacity. The Leased Premises may be made available to another childcare provider at the sole discretion of Kids First Advisory Board at any time after the 60-day period of non-compliance, if a plan is not acceptable to the Board. In such a case, the failure to maintain the minimums shall constitute an event of default under Article XVI of the Lease Agreement and the Lease Agreement shall be terminated, and the Tenant required to vacate the premises. 7 ➢ Colorado Childcare Assistance Program (CCCAP) Obligation- Childcare tenants in the Yellow Brick Building are required to maintain a current fiscal agreement (with Pitkin, Eagle, and Garfield Counties) to serve CCCAP funded children. It is the program’s responsibility to keep the current fiscal agreement on file on the premises. If a space is available, a CCCAP funded child cannot be denied enrollment. A CCCAP funded child may be on a waitlist for an available space and would not receive higher priority than other children already on the wait list. Kids First childcare financial aid will reimburse the childcare program for any difference in payment between what CCCAP pays vs. what the program charges, if there is a difference in the per day rate ➢ Community Accessibility - Priority will also be given to childcare providers offering the hours and year-round scheduling most in demand. Priority will be given to current tenants of the Yellow Brick Building as long as performance standards are met. ➢ Prompt payment of rent. ➢ Maintenance, safety and cleanliness of rooms as determined by the fire department and the health department inspections. ➢ Responses and communication with the landlord - notices from landlord responded to in a timely manner, and written notice given for any change to the leased space. 2. Landlord expressly reserves the right to withhold its consent to any change of use or purpose in its unrestricted discretion. ARTICLE VII Prohibited Uses. 1. The Leased Premises may not be used to provide childcare for children that are over 5 years of age or have attended Kindergarten without the express written permission of the Landlord. 2. Tenant will not use, occupy, or permit the Leased Premises, or any part thereof, to be used or occupied for any unlawful or illegal business, use, or purposes deemed by the Landlord to be disreputable, or hazardous, not in such manner as to constitute a nuisance of any kind, nor for any purpose or in any way in violation of any present or future laws, rules, requirements, orders, directions, ordinances or regulations of the United States of America, State of Colorado, County of Pitkin, City of Aspen, or other municipal, governmental, or lawful authority whatsoever. 3. Tenant shall not do or permit anything to be done in or about the Premises or bring or keep anything therein which will in any way increase the rate of fire insurance upon the Building wherein the Premises are situated. Tenant shall, at its sole cost and expense, comply with any and all requirements pertaining to the Premises of any insurance company necessary for the maintenance of reasonable fire and public liability insurance covering the Leased Premises. Tenant shall promptly comply with all laws, ordinances, orders, and regulation affecting the Premises and the cleanliness, safety, and use of the same, including installation of additional facilities as required for the conduct and continuance of Tenant's business on the Leased Premises. No auction for fire or bankruptcy sales may be conducted on the Premises without Landlord's consent. 8 ARTICLE IIX Nuisance and Cleanliness 1. Tenant covenants that it will exercise the highest duty of care to maintain the Leased Premises in a clean condition and to provide for sufficient trash and garbage service. 2. Tenant shall not permit any noxious or offensive odors to exist in or around the Leased Premises. A breach of this obligation by the Tenant shall constitute a material breach of this Lease. 3. Tenant shall not perform any act or carry on any practices which may injure the Building of which the Leased Premises form a part or be a nuisance or menace to other Tenants in said Building. A breach of any of the terms or conditions contained in this Article X shall constitute a material breach of this Lease. 4. Tenant shall be responsible for any interior maintenance and improvements to Tenant’s space. Any permanent improvements or remodels to Tenant’s space to include, but not necessarily limited to, paint, carpet or flooring, lighting or interior structural changes shall be the responsibility of Tenant. All such improvements or remodels shall require the prior written approval of Landlord. 5. Landlord may, in its sole discretion, require Tenant to return the Tenant’s space to its original condition at the time of default or abandonment of the lease. ARTICLE IX Repairs, Alterations, and Improvements 1. Landlord shall keep in good order, condition, and repair, the exterior foundation, exterior walls (except the interior faces thereof), down spouts, gutters and roof, electrical systems, the plumbing and sewage system outside the Building. Landlord’s responsibility under this section shall not apply to any damage, caused by any act of negligence of Tenant, its agents, employees, invitees, lessees or contractors. 2. Tenant shall at all times keep the Leased Premises and all partitions, doors, door jams, door closures, door hardware fixtures, equipment and appurtenances thereof (including electrical lighting, heating, plumbing and plumbing fixtures and any air conditioning system, including accessories under the control of Tenant) in good order, condition, and repair, including replacements (including reasonable periodic painting as determined by Landlord), damage by unavoidable casualty excepted, except for structural portions, by reason of Tenant's negligent acts or omission to act. Landlord may add the cost of such repairs in the next installment of rent which shall thereafter become due. 3. Tenant shall not have the right to make any alterations, improvements, and/or additions to the Leased Premises without first obtaining Landlord's written consent. 4. Tenants are responsible for their interior upkeep and improvements or remodels which may include paint, carpet or flooring, lighting or interior structural changes. 5. The Landlord may require (upon its discretion) that the Tenant return the Leased Premises to the original condition prior to alteration at the time of forfeiture of lease. 9 6. All areas of the building that are not defined as common areas, including restrooms, shall be maintained, and cleaned by Tenant. ARTICLE X Landlord Not Liable for Damages Landlord shall not be liable to Tenant or to any other person whatsoever for any damage occasioned by falling plaster, electricity, plumbing, gas, water, steam, sprinkler or other pipe and sewage system or by the bursting, running or leaking of any tank, washstand, closet or waste to other pipes in or about the Leased Premises, or the Building or which they are a part, nor for any damage occasioned by water being upon or coming through the roof, or vent, or otherwise for any damage arising from any acts or neglect of co-tenants or other occupants of the Building or of adjacent property, or the public, nor shall Landlord be liable in damages or otherwise for any failure to furnish, or interruption of service of any water, gas electricity, heated water, steam and/or chilled water, caused by fire, accident, riot, strike, labor disputes, acts of God, or the making of any repairs or improvements or other causes beyond the control of Landlord. ARTICLE XI Indemnification of Landlord Tenant shall indemnify Landlord and the City of Aspen and save it harmless from and against any and all claims, actions or damages or liability or expense in the loss of life, personal injury, and/or damage to property arising from or out of any occurrence in, upon, or at the Leased Premises, or the occupancy or use by Tenant of the Leased Premises or any part thereof, or occasioned wholly or in part by any act or omission of Tenant, its agents, contractors, servants, lessees or concessionaires. In case Landlord, shall without fault on its part be made a party to any litigation commenced by or against Tenant, then Tenant shall fully protect and hold the Landlord and the City of Aspen harmless and pay all costs, expenses, and reasonable attorney's fees incurred or paid by Landlord or the City of Aspen in connection with such litigation. Tenant shall also pay all costs, expenses, and reasonable attorney's fees that may be incurred or paid by Landlord or the City of Aspen in enforcing the covenants and agreements in this Lease, so long as Landlord prevails in such litigation. ARTICLE XII Assignment and Subletting Tenant shall not assign this Lease nor any interest herein, or mortgage or hypothecate this Lease or any interest herein or permit the use of the Leased Premises by any person or persons other than Tenant or sublet the Premises in whole or in part without Landlord's prior written consent. Landlord’s consent shall be entirely discretionary. ARTICLE XIII Access to Premises 1. Landlord and its authorized representatives shall have the right to enter upon the Leased Premises at all reasonable hours (and in emergencies, at all times) to inspect the same, to make repairs, additions or alterations to the Premises and for any lawful purpose. Landlord agrees to provide Tenant with reasonable notice whenever it deems necessary to enter upon the Premises. 10 2. For a period commencing ninety (90) days prior to the end of the lease term, Landlord may have reasonable access to the Leased Premises for the purpose of exhibiting the same to prospective tenants and to post any usual "For Lease" signs upon the Leased Premises. ARTICLE XIV Damage or Destruction 1. In case the Leased Premises shall be partially or totally destroyed by fire or other casualty insurable under the full standard extended risk insurance as to become partially or totally untenantable, the same shall be repaired as speedily as possible at the expense of Landlord, unless Landlord shall elect not to rebuild as hereinafter provided, and (should that be a substantial interference with Tenant's business) a just and proportionate part of the fixed rent shall be abated until so repaired. 2. If more than fifty percent (50%) of the Building in which the Leased Premises are located shall be destroyed or so damaged by fire, or other casualty insurable under full standard extended risk insurance, as to become wholly untenantable, or if the Building in which the Leased Premises are located is destroyed to the extent of not less than thirty three and one- third percent (33 1/3%) of the replacement cost thereof, or in the event of the Leased Premises shall be partially or totally destroyed by a cause or casualty other than those covered by fire and extended coverage risk insurance, or, for such casualty the Landlord shall decide not to rebuild the Building, then in any such event, Landlord may, if it so elects, rebuild or put said Building in good condition and fit for occupancy within a reasonable time after such destruction or damage, or may give notice in writing terminating this Lease as of a date not later than sixty (60) days after any such damage or destruction, notwithstanding that the Leased Premises may have sustained little or no damage. Any such termination shall be effective ten (10) days following notification to Tenant by Landlord of Landlord's election to terminate. If Landlord elects to repair or rebuild said Building, it shall, within sixty (60) days after such damage, give Tenant notice of its intention to repair and then proceed with reasonable speed to make such repairs. Unless Landlord elects to terminate this Lease, this Lease shall remain in full force and effect and the parties waive the provisions of any law to the contrary. ARTICLE XV Eminent Domain 1. If title to all of the Leased Premises or so much thereof be taken by any public or quasi-public use under any statute or by right of eminent domain, or by private purchase in lieu thereof, so that a reasonable amount of reconstruction of the Leased Premises will not result in the Leased Premises being a practical improvement and reasonably suitable for Tenant's continued occupancy of the uses and purposes for which the Leased Premises are leased, this Lease shall terminate as of the date that possession of said Leased Premises, or part thereof, be taken. 11 2. If any part of the Leased Premises shall be so taken, and the remaining part thereof (after reconstruction of the then existing building in which the Leased Premises are located) is reasonably suitable for Tenant's continued occupancy for the purposes and uses for which the Leased Premises are leased, this Lease shall, as to the part so taken, terminate as of the date that possession of such part of the exclusive Leased Premises be so taken and the fixed rent shall be reduced in the same proportion that the floor area of the portion of the exclusive Leased Premises so taken (less any additions thereto by reason of any reconstruction) bears to the original floor area of the exclusive premises, and Landlord shall, at its own cost and expense, make all necessary repairs or alterations to the Building in which the Leased Premises are located so as to constitute the portion of the Building not taken a complete architectural unit and the remaining exclusive Leased Premises a complete merchandising unit, but such work shall not exceed the scope of the work to be done in originally constructing said building. There shall be no abatement of rent during such restoration except to the extent otherwise provided in this paragraph. 3. All compensation awarded or paid upon such a total or partial taking of the fee of the Leased Premises shall belong to and be the property of the Landlord, whether such compensation be awarded or paid as compensation for diminution in value of the leasehold or to the fee; provided, however, that Landlord shall not be entitled to any award made to Tenant for loss of business, depreciation to, and cost of removal of stock and fixtures. 4. Each party agrees to execute and deliver to the other all instruments that may be required to effectuate the provisions thereof. ARTICLE XVI Default 1. The occurrence of any of the following shall constitute an event of default: a. Delinquency by the Tenant in payment of any rent under this Lease for a period of ten (10) days from the date such rent became due and payable. b. Delinquency by the Tenant in the performance of or compliance with any of the other obligations of Tenant contained in this Lease, for a period of twenty (20) days after written notice thereof from Landlord to Tenant. c. Filing by or against the Tenant in any court pursuant to any statute either of the United States or of any state, of a petition or bankruptcy or insolvency, or for reorganization, or for the appointment of a receiver or trustee, of all or a portion of the Tenant's property, if within ninety (90) days after the commencement of any such proceedings involving the Tenant such petition shall not have been dismissed. 2. In the event of default in non-payment of rent as defined in Paragraph 1 a) above, this Lease shall automatically terminate on the date specified in the Landlord's three (3) day notice for payment or rent or surrender of possession of the Premises under Section 13-40-104(d) (1973 CRS), if Tenant fails to pay such rent as demanded in said notice. 12 3. Upon the expiration of this Lease pursuant to the preceding subparagraph, the Tenant shall peacefully surrender the Leased Premises to the Landlord, and the Landlord upon or at any time after any such expiration, may, without further notice, reenter the Leased Premises and repossess it by force, summary proceedings, ejectment or otherwise, and must dispossess the Tenant and remove the Tenant and all other persons and property from the Leased Premises, and may have, hold and enjoy the Leased Premises and the right to receive all rental income therefrom. 4. At any time after such expiration, the Landlord may relet the Leased Premises or any part thereof, in the name of the Landlord or otherwise for such term (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such conditions as the Landlord, in the Landlord's absolute discretion, may determine, and may collect and receive the rents therefor. The Landlord shall in no way be responsible or liable for any failure to collect any rent due upon such reletting. 5. No such termination of this Lease shall relieve the Tenant's liability and obligations under this Lease, and such liability and obligations shall service any such termination. In the event of any such termination, the Tenant shall pay to the Landlord the rent required to be paid by the Tenant up to the time of such Termination, and thereafter the Tenant, until the end of what would have been the term of this Lease in the absence of such termination, shall be liable to the Landlord for, and shall pay to the Landlord as and for liquidated and agreed damages for the Tenant's default the following: a) The equivalent of the amount of the rent which would be payable under this Lease by the Tenant if the Lease were still in effect, less b) The net proceeds of any reletting effected pursuant to the provisions of the preceding paragraph, after deducting all of the Landlord's expenses in connection with such reletting, including, without limitation, all reasonable repossession costs brokerage commission, legal expenses, attorneys' fees, costs and expenses of preparation for such reletting. ARTICLE XVII Abandonment 1. Tenant shall not vacate or abandon the Leased Premises at any time during the term of this Lease. Abandonment shall be deemed to have occurred if Tenant is absent from the Leased Premises for more than twenty (20) days without having paid a monthly installment of the combined rent per Article III. If Tenant should violate this prohibition or be dispossessed of the Leased Premises involuntarily, by operation of law or otherwise, any personal property belonging to Tenant left on the Leased Premises shall be deemed to be abandoned, at the Landlord's option, or Landlord may store such property in Tenant's name and at Tenant's expense without notice to Tenant. 2. Upon abandonment of the Leased Premises, the Landlord at its election may reenter and relet the Leased Premises to the benefit of the Tenant without effecting a termination of the Lease and apply any rent received as a result of that reletting the amounts due Landlord from Tenant under the Lease. In the alternative, the Landlord upon abandonment of the Leased Premises may treat the Lease as being terminated 13 3. The rights and remedies of the Landlord under this Article XIX are in addition to and not exclusive of any other right or remedy of Landlord herein given, or which may be permitted by law. ARTICLE XIIX Covenant of Quiet Enjoyment So long as the Tenant is not in default hereunder during the base term hereof and any renewal or extension hereof, the Landlord covenants that the Tenant shall peaceably and quietly occupy and enjoy the Leased Premises subject to the terms hereof. The Landlord warrants and agrees to defend the title to the Leased Premises, and further warrants that it has full authority to execute this Lease. ARTICLE XIX Accord and Satisfaction No payment by Tenant or receipt by Landlord of a lesser amount than the rent herein provided shall be deemed to be other than on account of the earliest rent due and payable hereunder, not shall the endorsement or statement accompanying any check or payment as rent be deemed an accord and satisfaction, and Landlord may accept any such check or payment without a prejudice to the Landlord trying to recover the balance of such rent or pursue any other remedy provided in this Lease. ARTICLE XX Subordination Tenant agrees that this Lease Agreement shall be subordinate to any mortgage or deeds of trust that are now or hereafter may be placed upon said Leased Premises and to any and all advances made or to be made thereunder and to the interest thereon and all renewals, replacements and extensions thereof, provided the mortgagee or beneficiary named in said mortgages or deeds of trust shall agree to recognize the Lease of Tenant in the event of foreclosure if Tenant is not in default and shall attorn to such mortgagee. ARTICLE XXI Estoppel Certificates Tenant agrees at any time and from time to time, upon no less than ten (10) days' prior request by the Landlord, to execute, acknowledge and deliver to Landlord 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 fixed rent and other charges have been paid in advance, if any, and confirming Tenant's acceptance of the Premises, the commencement of the lease term, and the rent provided under the Lease, it being intended that such statement delivered pursuant to this paragraph may be relied upon by any prospective purchaser, mortgagee, or assignee of any mortgagee of the Leased Premises or the Building. ARTICLE XXII Waiver One or more waivers of any covenant or condition by Landlord 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 Landlord to or of any act by Tenant requiring Landlord's consent or approval shall not be deemed to waive or render 14 unnecessary Landlord's consent or approval to or of any subsequent similar act by Tenant. The subsequent acceptance of rent hereunder by Landlord shall not constitute a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease other than the failure of Tenant to pay the particular rental so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such rent. No waiver of any provision of this Lease shall be effective unless it is in writing and signed by the Landlord. ARTICLE XXIII Hold Over If Tenant should remain in possession of the Leased Premises after the expiration of the Term and without executing a new lease, then such holding over shall be construed as a tenancy from month to month, subject to all the conditions, provisions and obligations of this Lease insofar as the same are applicable to a month to month tenancy. ARTICLE XXIV Surrender of Premises: Treatment of Tenant's Alterations at Expiration of Lease All alterations, additions, improvements, partitions, flooring, carpeting or fixtures, including, but not limited to light fixtures, electrical fixtures, and plumbing fixtures, which may be made or installed by either of the parties hereto upon the Leased Premises and which in any manner are attached to the floors, walls, windows, or ceilings are to be the property of the Landlord upon installation of any part thereof without disturbance or injury at the termination of this Lease, unless Landlord shall elect otherwise. Landlord shall make such election by giving notice in writing to Tenant prior to the expiration or other termination of this Lease, or any renewal or extension thereof. In the event the Landlord shall so elect, such alterations, installations, additions or improvements made by Tenant upon the Leased Premises as the Landlord shall so elect shall be removed by the Tenant and the Tenant shall restore the Premises to its original condition at the commencement hereof, normal wear and tear excepted, at its own costs and expense prior to the expiration or termination of the term hereof; or if the Tenant fails to do so at the Tenant's expense. Also, at the expiration of the lease term, Tenant shall remove all of his movable trade fixtures which shall not be the property of the Landlord under the foregoing provisions of this paragraph. The Tenant's obligations to perform the covenants contained in this Paragraph of this Lease shall survive the expiration or other termination of this Lease. ARTICLE XXV Signs, Displays, and Other Advertising Media Tenant shall not erect or install any exterior or interior window or door signs, advertising media, window or door lettering, or placards without Landlord's written consent. Tenant agrees to install an exterior sign which shall be in strict conformance with Landlord's sign criteria as to design, material, colors, location, size and style of lettering. The cost of such sign shall be the Tenant's sole expense. Tenant agrees not to use an advertising media or other media that shall be deemed objectionable to Landlord or other tenants, such as loudspeakers, phonographs, or radio broadcasts in a manner to be heard outside the Premises. Tenant shall not install any exterior lighting, decoration, painting, or awning, or make any changes to the exterior of the Leased Premises without Landlord's written consent. 15 ARTICLE XXVI Notices 1. All notices to be given with respect to this Lease shall be in writing. Each notice shall be sent by registered or certified mail, postage prepaid and return receipt requested, to the party to be notified at the address set forth in the Lease Agreement or at such other address as either party may from time to time designate in writing. 2. Every notice shall be deemed to have been given at the time it shall be deposited in the United States mail in the manner prescribed herein. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process. ARTICLE XXVII Attorney's Fees In the event of any litigation or other action or proceeding between the parties hereto arising out of the performance or non-performance of this Lease, or enforcement of any rights or remedies hereunder, including any indemnities herein contained, the prevailing party shall be entitled in such litigation, action or proceeding to also recover as party of any judgment, award or other relief, its reasonable attorneys' fees and costs incurred. In the event Landlord is asked to assign, subordinate, or sublet Leased Premises, all costs incurred by Landlord will be paid by Tenant, including all reasonable attorney fees. ARTICLE XXVIII Lien on Tenant's Improvements and Personal Property Landlord shall have a first lien paramount to all others on every right and interest of the Tenant in and to this Lease Agreement, and on any building or improvement on or hereafter placed on the Leased Premises, and on any furnishings, equipment, fixtures, or other persona property of any kind belonging to the Tenant, or the equity of the Tenant therein, on the Leased Premises. Such lien is granted for the purpose of securing the payment of rents, taxes, assessments, charges, liens, penalties, and damages herein covenanted to be paid by the Tenant, and for the purpose of securing the performance of all of the Tenant's obligations under this Lease. Such lien shall be in addition to all rights of the Landlord given under statutes of this State, which are now or shall hereinafter be in effect. Upon request of Landlord, Tenant shall execute such security agreement and financing statement as Landlord may deem necessary in order to perfect the lien agreed to herein. ARTICLE XXIX Personal Guaranty The shareholders of the Tenant, if Tenant is a Corporation, shall execute the Guaranty attached hereto as Exhibit "1". ARTICLE XXX Miscellaneous Provisions 1. If any portion of this Lease Agreement shall be declared invalid or unenforceable, the remainder of the Lease Agreement shall continue in full force and effect. 16 2. Where necessary to carry out the meaning hereof, the singular shall mean the plural, the plural the singular, and any gender shall apply to all genders. 3. This Lease and the General Conditions constitute the total understanding of the parties with respect to the subject matter hereof and no modification thereof may be made except by a writing signed by both of the parties. 4. This Lease Agreement and all agreements herein contained shall bind the parties hereto and their heirs, personal representative’s successors and assigns. 5. Each term and each provision of this Lease Agreement shall be construed as and shall have the same force and effect as though made in the form of a covenant. 6. This Lease Agreement shall be construed in accordance with the laws of the State of Colorado. 7. Time is of the essence for the performance of any obligation contained in this Lease Agreement. 8. Tenant will be charged $50 for each replacement building key, and the cost to replace any other key or key card to access the building. 17 EXHIBIT 1 TO YELLOW BRICK LEASE AGREEMENT GUARANTY OF LEASE FOR VALUE RECEIVED, and in consideration for, and as an inducement to the aforesaid Landlord to make the foregoing Lease Agreement with ____________________ as Tenant, the undersigned _______________________ unconditionally guarantees the full performance and observance of all the covenants, conditions, and agreements therein provided to be performed and observed by Tenant, and expressly agrees that the validity of this agreement and the obligations of the guarantors hereunder shall in no wise b e terminated, affected or impaired by reason of the assertion by Landlord against Tenant of any of the rights or remedies reserved to Landlord pursuant to the provisions of the within Lease or by the relief of Tenant from any of Tenant's obligations under the Lease by operation of law or otherwise (including, but without limitation, the rejection of the Lease in connection with proceedings under the bankruptcy laws now or hereafter enacted); the undersigned hereby waiving all suretyship defenses. The undersigned further covenants and agrees that this guaranty shall remain and continue in full force and effect as to any renewal, modification, or extension of this Lease, whether or not the undersigned shall have received any notice of or consented to such renewal, modification or extension. The undersigned further agrees that his liability under this guaranty shall be primary, and that in any right of action which shall accrue to landlord under the Lease, landlord may, at Landlord's option, proceed against the undersigned and Tenant, jointly or severally, and may proceed against the undersigned without having commenced any action against or having obtained any judgment against Tenant. The undersigned further represents to Landlord as an inducement for Landlord to make the Lease that the undersigned owns 100% all of the entire outstanding capital stock of Tenant. It is agreed that the failure of Landlord to insist in any one or more instances upon a strict performance or observance of any of the terms, provisions, or covenants of the foregoing Lease or to exercise any right therein contained shall not be construed or deemed to be a waiver or relinquishment for the future of such term, provision, covenant or right, but the same shall continue and remain in full force and effect. Receipt by Landlord of rent with knowledge of the breach of any provision of the foregoing Lease shall not be deemed a waiver of such breach. Except as may be otherwise specifically provided in the Lease subletting, assignment, or ot her transfer of the within Lease, or any interest therein, shall not operate to extinguish or diminish the liability of the undersigned guarantors under this guaranty; and wherever reference is made to the liability of Tenant named in the within Lease, such reference shall be deemed likewise to refer to the undersigned guarantors. It is further agreed that all of the terms and provisions hereof shall inure to the benefit of the respective heirs, personal representatives, successors and assigns of Landlord, and shall be binding upon the heirs and assigns of the undersigned. IN WITNESS WHEREOF, the undersigned guarantor has caused this guaranty to be executed effective as of the ______ day of _____________________, 20___. Board President Signature/Business Owner: ________________________________________ Program address: __________________________________________________________ Ajax Cubs 24th November 22 215 N. Garmisch, Aspen, CO 81611 Owner/Director