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HomeMy WebLinkAbout2025-54 A Resolution of the Vail Town Council Approving Lease Agreement with Long Pourr for a Limited Food Establishment in the Vail Transportation CenterRESOLUTION NO. 54 SERIES OF 2025 A RESOLUTION OF THE VAIL TOWN COUNCIL APPROVING A LEASE AGREEMENT WITH LONG POURR FOR A LIMITED FOOD ESTABLISHMENT IN THE VAIL TRANSPORTATION CENTER WHEREAS, the Town wishes to grant, and the Long Pourr wishes to acquire, a certain lease agreement for the operation of a limited food establishment in the Vail Transportation Center pursuant the terms set forth in Exhibit A attached hereto and incorporated herein by this reference (the "Lease"). NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Town Council hereby approves the Lease in substantially the same form attached hereto as Exhibit A and in a form approved by the Town Attorney, and authorizes the Town Manager to execute the Lease on behalf of the Town. Section 2. This Resolution shall take effect immediately upon its passage. INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Vail Town Council held this 4th day of November, 2025. ________________________________ Travis Coggin, Mayor ATTEST: _________________________________ Stephanie Kauffman, Town Clerk 10/30/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VTC LONGPOURR LEASE-A101525.DOCX LEASE AGREEMENT This LEASE AGREEMENT (the "Agreement") is made and entered into this _____, day of __________, 2025, (the "Effective Date") by and between the Town of Vail, a Colorado home rule municipal corporation with an address of 75 South Frontage Road, Vail, CO 81657 (the "Town"), and Long Pourr, a Colorado _______________ with an address of _______________ ("Lessee") (each a "Party" and collectively the "Parties"). WHEREAS, the Town wishes to provide activation at the top level of the Vail Transportation Center with simple food and beverage offerings and fast transactions that service daily employees, transit riders and visitors that come through the Transportation Center; and WHEREAS, to accomplish this desire the Parties wish to enter into a lease agreement in which the Town leases to Lessee the property described in Exhibit A, attached hereto and incorporated herein by this reference (the "Premises"), for use as a limited food establishment. NOW THEREFORE, in consideration of the mutual promises set forth herein, the Parties hereto agree as follows: I. PREMISES A. Lease. In consideration of the rent, covenants and agreements herein contained, the Town leases to Lessee and Lessee rents from the Town the Premises. B. Suitability. As of the Effective Date, Lessee has inspected the physical condition of the Premises and receives the Premises in "as is" condition. The Town makes no representations or warranties with respect to the condition of the Premises or its fitness or availability for any particular use, and the Town shall not be liable to Lessee for any latent or patent defect on the Premises. II. TERM AND TERMINATION A. Term.This Agreement shall commence on _______, 2025, and terminate on _______, 2027, unless renewed as provided herein. B. Mid-Season Check-In. Between February 1, 2026 and February 20, 2026, a Lessee representative shall meet with a Town representative for a mid-season check- in (the "Check-in Meeting"). The purpose of the Check-in Meeting is to ensure that all requirements of this Agreement are being met and that Lessee and the Town reasonably address any concerns pertaining to the success of the limited food establishment. At the Check-in Meeting, Lessee shall inform the Town of its operating hours, menu offerings, average number of daily transactions since commencing operation, and monthly gross sales since commencing operation, as well as any maintenance concerns or other challenges. 2 10/30/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VTC LONGPOURR LEASE-A101525.DOCX C.Renewal. If Lessee is not in default of this Agreement, Lessee shall have the option to renew the Agreement for an additional term of 2 years commencing at the expiration of the initial Agreement term. The option shall be exercised by written notice given to the Town not less than 90 days prior to the expiration of the initial term. D. Termination by the Town. Notwithstanding any other provision of this Agreement, if the Town determines, in its sole discretion, that the Premises is needed for a public purpose, the Town may terminate this Agreement by providing Lessee with a minimum of 90 days' prior written notice. E. Surrender. Upon the expiration or termination of this Agreement, Lessee shall peaceably and quietly leave and surrender the Premises in the same condition as it exists on the date of the execution of this Agreement, subject to reasonable wear and tear. F. Holdover. If Lessee remains or continues to be in possession of the Premises or any part thereof after the end of the term of this Agreement, at the Town's option, Lessee shall be deemed to be illegally retaining possession, or shall be deemed to be a month-to-month tenant of the Premises on all the terms and conditions of this Agreement except that monthly rent equal to the fair market value shall be charged. In the event of any unauthorized holding over, Lessee shall indemnify the Town against all claims for damages by any person to whom the Town may have leased all or any part of the Premises effective after the termination of the lease. Nothing herein contained shall be construed to limit the Town's right to obtain possession of the Premises upon termination of this lease by unlawful detainer proceedings, or otherwise, in the event that the Town does not exercise its option to treat the continued possession by Lessee as a month-to-month tenancy. III. RENT AND REVIEW A. Base Rent. Lessee shall pay as rent to the Town 3% of Lessee's gross sales, paid on a monthly basis during the first year of operations. Beginning the second year of operations, rent will increase to 4% of Lessee’s gross sales, paid on a monthly basis. Rent shall begin the month that the limited food establishment begins operation, with a goal of beginning operation in mid-December 2025, and may be prorated as necessary. 1. Lessee shall furnish to the Town on or before the 20th day of each month a verified statement of Lessee's gross sales for the preceding month in a form approved by the Town. 2. The term "gross sales" means the entire amount of the price charged either wholly or partly in cash or in credit, or in exchange for goods or services, for all food and beverages sold and all charges made for services performed or for the extension of credit in, at, or from any part of the Premises, the amount allowed for any rain check or complimentary services or products given, all deposits not refunded to purchasers and all orders taken in or from the premises from which 3 10/30/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VTC LONGPOURR LEASE-A101525.DOCX Lessee would in the normal course of its operations credit or attribute to its business in the Premises, even though such order may be filled elsewhere, without deduction in any case for uncollected or uncollectible credit accounts, the gross receipts from all mechanical or other vending devices placed in the premises by Lessee or under authority from Lessee other than such devices which are installed in portions of the premises not open to the public for the convenience of Lessee's employees. 3. If Lessee's gross sales are required to be reported on any Federal, State, or municipal sales tax return, or any similar form of return, and gross sales as reported on the return exceed the gross sales as reported under this Agreement, then the gross sales shall be taken at the highest figure so reported. If any government authority increases the gross sales reported by Lessee on any such tax returns after audit, then Lessee shall promptly notify the Town of such increase and shall promptly pay any additional rent due. B. Records. 1. Lessee shall submit to the Town no later than April 15th of each year a profit and loss statement pertaining to operation on the Premises prepared by a certified public accountant. Such statement shall contain an appropriate certificate that all gross sales during the yearly accounting period have been properly reported to the Town. 2. The Town shall have the right, upon written notice, to request more frequent financial reports as is necessary, in its sole discretion. Lessee shall furnish requested reports within 30 days of a written request. 3. Lessee shall maintain and preserve for at least 3 years from the start of this Agreement a permanent, accurate set of books and records of all gross sales during each day of the term of this lease Agreement, and all supporting records, including any excise tax reports, State sales tax, business and occupation tax, and gross income tax reports. Such books and records shall be maintained in accordance with standard accounting practices, and shall contain sufficient information to permit the accurate calculation of gross sales. 4. The Town or designee shall have the right to examine, during regular business hours upon 7 days' prior notice to Lessee, all books and records in any way pertaining to the business transacted on the Premises. 5. If an audit shows that the gross revenues shown by Lessee's books and records are understated by more than 5%, Lessee shall pay to the Town the cost of such audit. IV. USE AND MAINTENANCE A. General Use. Lessee agrees and covenants that the use of the Premises shall comply with the following: 4 10/30/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VTC LONGPOURR LEASE-A101525.DOCX 1. Lessee shall operate the Premises as a limited food establishment in accordance with all applicable law. Lessee shall not operate any other business on the Premises. 2. The limited food establishment shall obtain and maintain an appropriate health license from Eagle County. 3. Lessee shall provide, at its own cost and expense, all furniture, fixtures, and equipment ("FF&E") necessary for operation, excluding the common area tables and chairs. FF&E includes refrigeration, ovens, coffee makers, food preparation tables, and any other equipment required for operation of a limited food establishment on the Premises. All FF&E installed by Lessee shall remain the property of the Lessee, and may be removed upon expiration or earlier termination of the Lease provided that Lessee shall repair any damage caused by such removal. The Town shall provide plumbing or electrical work, as well as any physical alterations, such as painting, drywall, or flooring work, as the Town deems necessary. 4. The Premises shall not be used for any illegal or improper purpose or other use that would create a nuisance. 5. Minimum Winter Hours shall be from 7 a.m. to 5 p.m. during the operating season of Vail Mountain Resort (the "Resort"). For purposes of this Agreement, “operating season” means the period during which the Resort is open to the public for skiing or snowboarding activities, as publicly announced by the Resort. Minimum Summer Hours shall be from 8 a.m. to 4 p.m. from Memorial Day to Labor Day. 6. Lessee shall provide, as part of its menu, a $10 daily special for a food item plus a beverage or otherwise tailor its offerings such that patrons may purchase a food item plus a beverage for $10 or less. 7. Lessee shall provide a 10% discount on all food items to Town employees in uniform or using a Town credit card for purchases. 8. Lessee shall not park trucks or delivery vehicles outside the Premises so as to unreasonably interfere with the use of any driveways, walkways, roadways or parking areas; B. Maintenance. At all times during the term of this Agreement, Lessee, at its own cost and expense, shall: 1. Maintain the Premises, including the area outside the Premises, reasonably clean and free of grease, dirt, rubbish or obstruction, provided that the Town will provide street sweeping services and will otherwise maintain infrastructure; and 5 10/30/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VTC LONGPOURR LEASE-A101525.DOCX 2. Maintain, repair, and replace all equipment required for operation of a limited food establishment upon the Premises, including monthly maintenance and semi-annual professional cleaning. C. Inspection. Lessee shall permit the Town and its agents to enter the Premises at reasonable times, and upon reasonable notice for the purpose of inspecting the Premises. D. Failure to Maintain or Pay Charges. Should Lessee fail to pay any required charges or to maintain the Premises for a period of 30 days after receipt of written notice from the Town, the Town may, at its option, pay any such charges or perform any such maintenance. In such event, Lessee shall reimburse the Town within 10 days of an invoice from the Town. E. Use of Taxi Lane. Lessee may use the lane commonly used by taxis to access the Vail Transportation Center (the "Taxi Lane") to perform loading and unloading activities for a maximum of 15 minutes. Lessee shall keep the Taxi Lane reasonably clean and free from grease, trash or obstruction. F. Parking Pass. Lessee shall be entitled to one blue parking pass (or future equivalent) to allow parking in the Vail Transportation Center. Lessee shall be eligible to upgrade the parking pass at Lessee's own cost. V. TAXES Lessee shall be responsible for paying any taxes associated with its use of the Premises. VI. IMPROVEMENTS A. Additional Improvements. Lessee shall not, without first obtaining the written consent of the Town, make any alterations, additions, or improvements, in, to or about the Premises. B.Liens. Lessee shall not suffer or permit any mechanic's liens or claims to be filed against the Premises by reason of work, labor, service or materials supplied or claimed to have been supplied to Lessee. Nothing in this Agreement shall be construed as constituting the consent of the Town, expressed or implied, to any contractor, subcontractor, laborer or material supplier for the performance of any labor or the furnishing of any materials for any improvement or repair of or to the Premises. Nothing in this Agreement shall be construed as giving Lessee any right to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any mechanic's lien or claim against the Town's interest in the Premises. If any mechanic's lien or claim is filed against the Premises, Lessee shall cause the same to be discharged within 30 days. VII. INDEMNIFICATION 6 10/30/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VTC LONGPOURR LEASE-A101525.DOCX Lessee agrees to indemnify and hold harmless the Town and its officers, insurers, volunteers, representatives, agents, employees, heirs and assigns from and against all claims, liability, damages, losses, expenses and demands, including attorney fees, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Agreement or the Premises. This indemnification shall survive the expiration or termination of this Agreement. VIII. INSURANCE A. Coverages.Throughout the term of this Agreement (and after its expiration or termination as appropriate), Lessee shall procure and maintain, at its sole cost and expense, all of the following insurance: 1. Workers' Compensation insurance as required by law; and 2. Commercial General Liability insurance with minimum combined single limits of $1,000,000 each occurrence and $2,000,000 general aggregate. The policy shall be applicable to all premises and operations, and shall include coverage for bodily injury, broad form property damage, personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, employees, and contractors as additional insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations. B. Form. The coverages afforded under the policies shall not be cancelled, terminated or materially changed without at least 30 days' prior written notice to the Town. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Any insurance carried by the Town, its officers, its employees, or its contractors shall be excess and not contributory insurance to that provided by Lessee. Lessee shall be solely responsible for any deductible losses under any policy. C. Certificate. Lessee shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Agreement. IX. DEFAULT AND REMEDIES A. Default. The following shall constitute a default of this Agreement: 1. If Lessee fails to operate during the required hours as described in this Agreement on more than 4 occasions within any 30-day period; 2. If Lessee fails to offer the required daily $10 special or similar offerings, as described in this Agreement, on more than 4 occasions within any 30-day period; 7 10/30/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VTC LONGPOURR LEASE-A101525.DOCX 3. If Lessee fails to keep the Premises in a clean, orderly, and well-maintained condition as determined by the Town in its reasonable discretion; or 4. If Lessee fails to comply with any other provision of this Agreement. B. Remedies. If a default occurs, the Town shall provide Lessee with written notice and allow 30 days from the date of notice for Lessee to cure. If Lessee fails to cure, the Town may terminate this Agreement by providing 90 days' written notice. C. Attorney Fees and Costs. If the Town brings suit to enforce any provision of this Agreement or for recovery of the Premises, the Town shall be entitled to all costs incurred in connection with such action, including reasonable attorney fees. X. SIGNS A.Location. Lessee shall, at its own expense, provide and maintain in first- class condition one exterior sign, and shall, on the expiration or termination of this Agreement, and at its own expense, remove such permitted sign and repair any damage caused by such removal. B. Compliance. All signage shall comply with the sign regulations contained in Title 11 of the Vail Town Code. The Town shall have the right to remove all non- permitted signs without notice to Lessee and at Lessee's expense. XI. CASUALTY If the Premises is damaged by fire or any other cause and the Town elects to repair the damage, this Agreement shall continue in full force and effect and, if such damage shall render all or part of the Premises untenable, the minimum rent due hereunder shall be proportionally abated (based on the proportion of the Premises rendered untenable) from the date of such damage until such time as the Premises have been made tenable. However, there shall be no abatement of rent if the fire or other cause of the damage is caused by the negligence or misconduct of Lessee, its agents, servants or employees, or by any other persons entering upon the Premises or the building by the expressed or implied invitation of Lessee. If the Town elects not to repair such damage, then this Agreement shall automatically terminate upon and be effective as of the giving of notice by the Town of such election. Lessee shall pay rent duly apportioned as of the date of such termination of this Agreement, and the Town and Lessee shall be free and discharged from the obligations arising hereunder after the date of such termination. XII. MISCELLANEOUS A. Modification. No provision of this Agreement may be amended, modified, revoked, supplemented, waived or otherwise changed except by written instrument duly executed by the Parties. B.Integration. This Agreement constitutes the entire agreement between the Parties, superseding all prior oral or written communications. 8 10/30/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VTC LONGPOURR LEASE-A101525.DOCX C.Severability.If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each provision of this Agreement shall be valid and be enforceable to the fullest extent permitted by law. D. Third-Party Beneficiaries. This Agreement is solely for the benefit of the Parties, and no other person or entity shall be a third-party beneficiary thereof. E. Governing Law and Venue. This Agreement shall be governed and construed in accordance with the laws of the State of Colorado, and any legal action arising out of this Agreement shall be brought in Eagle County, Colorado. F. Notice. Any notice under this Agreement shall be in writing and shall be deemed sufficient when directly presented or sent prepaid, first-class United States Mail to the Party at the address set forth on the first page of this Agreement. G. Successors. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective heirs, successors, representatives, administrators, executors and devisees. H. Assignment and Subletting. Lessee shall not assign this Agreement or sublet any portion of the Premises without the prior written consent of the Town. Any such assignment or subletting without the Town's consent shall be void. I.No Waiver. A failure of a Party to enforce any term of this Agreement shall not be deemed to be a waiver of any other term of this Agreement. J. Subordination. This Agreement is and shall be subordinated to all existing and future liens and encumbrances against the Premises. K. No Joint Venture. Notwithstanding any provision hereof, the Town shall never be a joint venture in any private entity or activity which participates in this Agreement, and the Town shall never be liable or responsible for any debt or obligation of any participant in this Agreement. L. Governmental Immunity. Nothing herein shall be construed as a waiver of any protections or immunities the Town may have under the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended. M. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of the Town not performed during the current fiscal year is subject to annual appropriation, shall extend only to monies currently appropriated, and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. N.Accessibility. Lessee shall comply with the accessibility standards for an individual with a disability adopted by the State Office of Information Technology pursuant to C.R.S. § 24-85-103, and shall indemnify, hold harmless and assume liability on behalf 9 10/30/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VTC LONGPOURR LEASE-A101525.DOCX of the Town and its officers, employees, agents and attorneys for all costs, expenses, claims, damages, liabilities, court awards, attorney fees and related costs, and any other amounts incurred by the Town in relation to Lessee's noncompliance with such accessibility standards. O. Electronic Signatures. The Parties intend that this Agreement be governed by the Uniform Electronic Transactions Act, C.R.S. § 24-71.3-101, et seq. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. TOWN OF VAIL, COLORADO ________________________________ Russell Forrest, Town Manager ATTEST ___________________________ Stephanie Kauffman, Town Clerk LONG POURR, ____ By: ________________________________ STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) Subscribed to and sworn to before me this ____ day of ____________, 2025, by ______________ as _____________________ of Long Pourr, ____. My commission expires: ______________ SEAL ________________________________ Notary Public 10/30/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VTC LONGPOURR LEASE-A101525.DOCX EXHIBIT A Description of Premises