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HomeMy WebLinkAbout2016-15 Lease Agreement for Betty Ford Alpine GardensRESOLUTION NO. 15 Series of 2016 A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE TOWN OF VAIL AND BETTY FORD ALPINE GARDENS; AND SETTING FORTH DETAILS IN REGARD THERETO WHEREAS, the Town of Vail (the "Town"), in the County of Eagle and State of Colorado is a home rule municipal corporation duly organized and existing under the laws of the State of Colorado and the Town Charter (the "Charter"); WHEREAS, the members of the Town Council of the Town (the "Council') have been duly elected and qualified; WHEREAS, on May 22, 1997, the Town and the Vail Alpine Garden Foundation originally entered into to lease for the alpine garden located within Ford Park and the Town granted the Vail Alpine Garden Foundation a license for the alpine garden display within the Gerald R. Ford Amphitheater ("Leased Premises"); WHEREAS, the Vail Alpine Garden Foundation has changed its name to Betty Ford Alpine Gardens; and WHEREAS, to reflect the changes in the boundaries of the Leased Premises, as well as the change in name of the Alpine Garden, the Parties wish to terminate the prior lease and enter into a new lease. NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Council hereby approves the Lease and authorizes the Town Manager to enter into the Lease with Betty Ford Alpine Gardens, in substantially the same form as attached hereto as Exhibit A and in a form approved by the Town Attorney. Section 2. This Resolution shall take effect immediately upon its passage. INTRODUCED, PASSED AND ADOPTED at a regularj eeting of the Town Council of the Town of Vail held this 5th day of April, 20.16.. , . n, ,w;.....; Lr AT � ••9 t< •S _. LAL Patt c nny, Vown �� PRZ940 Resolution No. 15, Series 2016 EXHIBIT A BETTY FORD ALPINE GARDENS LEASE THIS BETTY FORD ALPINE GARDENS LEASE (the "Lease") is made and entered into as of the day of , 2016 (the "Effective Date"), by and between the TOWN OF VAIL, a Colorado home rule municipality (the "Town"), and the BETTY FORD ALPINE GARDENS, a Colorado nonprofit corporation ("BFAG") (each individually a "Party" and collectively the "Parties"). WHEREAS, on May 22, 1997, the Town and the Vail Alpine Garden Foundation originally entered into to lease for the alpine garden located within Ford Park and the Town granted the Vail Alpine Garden Foundation a license for the alpine garden display within the Gerald R. Ford Amphitheater; WHEREAS, since that time, the Vail Alpine Garden Foundation changed its name to Betty Ford Alpine Gardens; WHEREAS, the term of the original lease extends to May 30, 2046; WHEREAS, to reflect the changes in the boundaries of the Leased Premises, as well as the change in name of BFAG and the construction of the Betty Ford Alpine Gardens Education Center, the Parties wish to terminate the prior lease and enter into a new lease; WHEREAS, the Town desires to cooperate with BFAG and encourage BFAG to undertake projects which will benefit the citizens of and visitors to the Town; and WHEREAS, the Parties agree to work together and to cooperate in a reasonable manner to effectuate the terms of this Lease. NOW THEREFORE, in consideration of the mutual promises contained herein, the adequacy of which is hereby recognized, the Parties agree as follows: 1. Termination of Prior Lease. The lease and license between the Town and the Vail Alpine Garden Foundation dated May 22, 1997 is hereby terminated and replaced with this Lease. 2. Leased Premises. Pursuant to the provisions of this Lease, the Town hereby leases to BFAG the real property and any improvements designated as leased to BFAG on Exhibit A-1, attached hereto and incorporated herein by this reference. 3. Licensed Premises. The Town hereby grants to BFAG a non-exclusive license for the sole purpose of using the three southern bays of the West Maintenance Building for operations of BFAG. Resolution No. 15, Series 2016 4. Term. a. Unless sooner terminated as provided herein, the term of this Lease shall be 50 years from the Effective Date. b. Upon expiration or termination of this Lease, BFAG's right to use the Leased Premises and the Licensed Premises and all improvements thereon shall cease. 5. Breach. a. If BFAG fails to perform any of its obligations under this Lease, the Town shall provide BFAG with written notice of the breach. BFAG shall have 15 days after the date of the notice to cure the breach. If a longer period is reasonably required to cure the breach and the cure is promptly begun, such cure period shall be extended for as long as the cure is being diligently undertaken to completion, as determined by the Town. b. If BFAG fails to cure the breach within 15 days after the date of the notice or a cure is not diligently being undertaken, the Town may, in its sole discretion, cure the breach after a reasonable attempt to schedule the cure around BFAG's schedule. If the Town chooses to cure the breach, BFAG shall be liable for the costs and fees that the Town expends to cure the breach, including any costs resulting from the work of Town employees. BFAG's liability for costs and fees associated with curing a breach shall survive the termination of this Lease. C. In addition to curing a breach by BFAG, the Town may, in its sole discretion, terminate this Lease as a result of BFAG's failure to cure the breach; provided that such termination shall be approved by the Vail Town Council at a public meeting where public comment is permitted on the issue. If the Town chooses to terminate this Lease under this subsection, it shall give BFAG 30 days' written notice. 6. Net Lease. This Lease shall be a net lease, and throughout the Term, all payments and other obligations or liabilities of any kind regarding the Leased Premises or the Licensed Premises shall be solely the responsibility of BFAG and not the responsibility of the Town. 7. Utilities. During the term of this Lease, BFAG shall be solely responsible for payment of all utilities related to its use of the Leased Premises and the Licensed Premises. Notwithstanding the foregoing, the Town shall be responsible for the cost of providing water to the plantings on the Leased Premises, but not the cost of water to the Alpine Gardens Education Center, as long as the water usage for the plantings is consistent with historical use. 8. General Maintenance. BFAG shall be responsible for all maintenance of the Leased and Licensed Premises, including without limitation the following: Resolution No. 15, Series 2016 a. Interior Maintenance i. Ensuring all lights and doors are operating properly and repairing the same in a prompt manner, including replacing all light bulbs. ii. Replacing batteries in all smoke, fire and CO detectors, as needed, but at a minimum on a yearly basis. iii. Painting or staining the interior elements of the building as needed, and ensuring that any scratches or dents in the paint or walls are properly repaired. iv. Repairing and maintaining floors and shampooing any carpets as needed and repairing and cleaning any marks in a prompt manner. V. Ensuring that all restroom facilities are operating properly and properly stocked with the necessary supplies, and repairing the same in a prompt manner. vi. Providing regular and consistent cleaning of the facility; including daily or hourly services as needed. vii. Ensuring proper and regular trash disposal within the facility and trash removal from the facility. b. Exterior Maintenance. i. Maintaining plantings, irrigation systems, water features, interpretive elements, structures and other improvements to a level of quality consistent with that of an internationally recognized botanical garden in a resort community. ii. Cleaning exterior surfaces as needed. iii. Painting or staining the exterior of buildings as needed, and ensuring that any scratches or dents in the walls are properly repaired. iv. Maintaining and inspecting fences and gates regularly. V. Clearing litter from the Leased Premises on a daily basis. vi. Using best management practices to ensure that all exterior maintenance activities have a minimal impact on the Gore Creek ecosystem. C. Areas of Joint Responsibility. BFAG acknowledges that the Town leases other portions of Ford Park to third parties (the Vail Valley Foundation and Resolution No. 15, Series 2016 the Vail Recreation District). BFAG shall share with those third parties the responsibility for maintaining the following areas: the Trash Building, and the West Restrooms/ Maintenance Building all as shown on Exhibit A-1. BFAG shall share with the Town the responsibility for maintaining the School House, as shown on Exhibit A-1. d. Annual Review. On an annual basis, the Town will meet with BFAG to discuss the maintenance and operation of the Leased Premises, compliance with this Agreement, any potential capital expenditures and projects and any other matters concerning Ford Park. 9. Capital Maintenance. a. The Town and BFAG shall be responsible for capital maintenance as set forth in Exhibit B-1. Capital maintenance is performed to extend the useful life of assets or replace assets, at intervals other than annually, and is of a significant value, including without limitation the following: i. Interior Capital Maintenance: system and system component and equipment replacements including mechanical, electrical, lighting, security and elevators; flooring replacement; replacement of structural components; and remodels of bathrooms, kitchens and locker rooms. ii. Exterior Capital Maintenance: roof replacement; window replacement; and replacement of walkways, bridges and parking lots. b. BFAG shall maintain a log of capital maintenance activities which satisfy its obligations under this Lease. C. In its maintenance activities, the Town shall use its best efforts to avoid interference with BFAG's use of the Leased Premises and the Licensed Premises, and shall restore any part of the Leased Premises or Licensed Premises damaged by the Town during such activities. 10. Payment of Taxes and Fees. During the term of this Lease, BFAG shall promptly pay all taxes, assessments, water and sewer rates and charges, charges and fees for public utilities, licenses and permit fees, and other government charges that may be assessed on the Leased Premises or the Licensed Premises during the term of this Lease. BFAG shall pay all such taxes and fees prior to the assessment of any fine, penalty, interest or cost that may be added, become due, or be imposed for nonpayment. 11. No Lien. BFAG agrees that it will not permit or suffer to be filed or claimed against the interest of the Town in the Leased Premises or the Licensed Premises any lien or claim of any kind during the terms of this Lease; if such lien or claim is filed, BFAG, within 30 days after receipt of notice of such lien or claim, Resolution No. 15, Series 2016 shall cause the lien to be released by payment, by posting a bond or by other legal action. 12. Use of Premises. a. BFAG shall use the Leased Premises or the Licensed Premises for construction, maintenance and operation of the alpine gardens and education center. b. Any expansion of the size of the gardens must be approved in writing by the Town. C. The use of the Leased Premises and the Licensed Premises shall comply with the terms of any conditional use permit ("CUP") approved by the Town for the Leased Premises and the Licensed Premises, as well as any rules adopted by the Town governing the use of the Leased Premises or the Licensed Premises, and the Vail Town Code. If there is a conflict between a CUP and this Lease, the CUP shall control. d. BFAG shall keep the Leased Premises and the Licensed Premises, other than secure areas, open to the public as required by the current operations plan approved with the conditional use permit for the Leased Premises and the Licensed Premises. 13. Storage. No materials, equipment or barriers shall be stored in storage areas which are not screened from view, except on a temporary basis with prior written approval from the Town. 14. Trash. BFAG is responsible for trash removal associated with its activities under this Lease, at its own cost. 15. Existing Conditions. As of the Effective Date, BFAG has inspected the physical condition of the Property and receives the Leased Premises and the Licensed Premises in "as is" condition, with all faults. The Town makes no representations or warranties with respect to the condition of the Leased Premises or the Licensed Premises or their fitness or availability for any particular use, and the Town shall not be liable to BFAG for any latent or patent defects. 16. Improvements. BFAG may construct improvements on the Leased Premises in compliance with all applicable conditional use permits and requirements of the Vail Town Code. At the expiration or termination of this Lease, all improvements shall become the property of the Town except for the plantings, which may be removed by BFAG in its sole discretion. 17. Hazardous Materials. Resolution No. 15, Series 2016 a. Though the Town has no actual knowledge of the presence of any hazardous materials or other adverse environmental conditions on the Leased Premises or the Licensed Premises, the Town makes no warranty regarding such materials or conditions. b. BFAG shall keep and maintain the Leased Premises and the Licensed Premises in compliance with, and shall not cause or permit the Leased Premises or the Licensed Premises to be in violation of, any federal, state, or local laws, ordinances or regulations relating to industrial hygiene or to the environmental conditions ("Hazardous Materials Laws") on, under, about, or affecting the Property. BFAG shall not use, generate, manufacture, store, or dispose of on, under or about the Leased Premises or the Licensed Premises or transport to or from the Leased Premises or the Licensed Premises any flammable explosives, radioactive materials, hazardous wastes, asbestos, lead- based paints, toxic substances, or related materials, including without limitation any substances defined as or included in the definition of hazardous substances, hazardous wastes, hazardous materials, or toxic substances under any applicable federal or state laws or regulations. 18. Board Member. The Town is entitled to appoint a representative to the BFAG Board of Directors, to assist in planning events and uses of the Leased Premises and the and Licensed Premises. Such member may be a voting member or a non-voting member, at the discretion of the Board of Directors. 19. Financial Statements. Upon request of the Town, BFAG shall provide the Town with a copy of its annual financial statement, including balance sheets, profit/loss statements and earmarked endowment funds. 20. Insurance. At all times during the term of this Lease, BFAG, at its own cost, shall carry and maintain adequate insurance policies to insure against all liability, claims, demands and other obligations associated with this Lease. At a minimum, BFAG shall procure and maintain the following insurance coverages listed below, with forms and insurers acceptable to the Town: a. Workers' Compensation coverage as required by law. b. Fire and Extended Loss coverage for all improvements on the Leased Premises, in an amount equal to 100% of the replacement cost of such improvements, naming the Town as an additional insured. C. The following coverages in minimum amounts of $1,000,000 for each occurrence and $1,000,000 general aggregate: i. General Liability coverage applicable to the Leased Premises and the Licensed Premises, including bodily injury, broad form property damage, personal injury, blanket contractual, products and completed operations, naming the Town as an additional insured. Resolution No. 15, Series 2016 ii. Comprehensive Automobile Liability coverage for the owned, hired or non -owned vehicles used in the performance of this Lease, naming the Town as an additional insured. iii. Liquor liability coverage if the Alpine Garden has or obtains a liquor license to serve wine, beer, or intoxicating liquors on the Leased Premises or Licensed Premises, naming the Town as an additional insured. 21. Indemnification. BFAG shall indemnify and hold the Town, its agents, servants and employees, harmless from and against any and all liability, loss, damages, costs and expenses, including reasonable attorney fees and costs of investigating any such matters, suffered or sustained by any person on or about the Leased Premises or the Licensed Premises or arising out of any act, error, omission or negligence in the operation, maintenance or use of the Leased Premises or the Licensed Premises by BFAG, its agents, officers, directors and employees, or of any occupant, subtenant, visitor or user of any portion of the Leased Premises, or any condition of the Leased Premises or Licensed Premises; provided that this indemnity shall not extend to damages resulting solely from the negligence or willful misconduct of the Town, its agents, officers, directors or employees, or damages resulting solely from the negligence or willful misconduct of the Town's invitees or licensees on the adjacent property. This Section shall survive termination of this Agreement. 22. Right of Entry. The Town reserves the right to enter the Leased Premises or Licensed Premises to ensure compliance with this Lease. The Town shall endeavor to provide reasonable advance notice of such entry, except in the case of emergency. 23. Notice. Any notice to be sent to the Parties pursuant to the terms of this Agreement shall be considered made the day it is mailed via certified or registered mail to the following addresses: Town of Vail: Town Manager Town of Vail 75 South Frontage Road Vail, CO 81657 Resolution No. 15, Series 2016 BFAG: Executive Director Betty Ford Alpine Gardens 183 Gore Creek Drive Vail, CO 81657 24. Quiet Enjoyment. Upon the performance of all terms of this Lease, BFAG shall at all times peaceably possess and enjoy the Leased Premises and Licensed Premises without unnecessary disturbance from the Town. In furtherance of this covenant, the Town will make reasonable efforts to limit disturbances by Town -controlled construction activities occurring near the Leased Premises and the Licensed Premises, and shall promptly repair any damage caused to the Leased Premises or the Licensed Premises by such activities. 25. Miscellaneous. a. No Assignment. This Lease and BFAG's obligations under this Lease shall not be assignable without the prior written approval of the Town. b. Contingency: No Debt. Pursuant to Article X, § 20 of the Colorado Constitution, any financial obligation of the Town under this Lease is specifically contingent upon annual appropriation of funds sufficient to perform such obligation. This Lease shall never constitute a debt or obligation of the Town under any statutory or constitutional provision. C. Severability. If any provision of this Lease is determined to be void by a court of competent jurisdiction, such determination shall not affect any other provision hereof, and all of the other provisions shall remain in full force and effect. d. Integration. This Lease represents the entire agreement between the parties hereto with respect to the subject matter hereof, and all prior or extrinsic agreements, understandings or negotiations shall be deemed merged herein. e. Waiver. No provision of this Lease may be waived to any extent unless and except to the extent the waiver is specifically set forth in a written instrument executed by the Party to be bound thereby. f. Modification. This Lease may only be modified by subsequent written agreement of the Parties. g. Governing Law and Venue. This Lease shall be governed by and construed in accordance with the laws of the State of Colorado, and venue for any legal action arising out of this Agreement shall be in Eagle County, Colorado. h. No Third Party Beneficiaries. No third party is intended to or shall be a beneficiary of this Agreement, nor shall any third party have any rights to enforce this Lease in any respect. i. No Joint Venture or Partnership. No form of joint venture or partnership exists between the Parties, and nothing contained in this Lease shall be construed as making the Parties joint venturers or partners. Resolution No. 15, Series 2016 j. Binding Agreement. This Lease shall be binding upon the respective Parties, their successors or assigns. k. Governmental Immunity. Nothing herein shall be construed as a waiver of any protections or immunities the Town and its officials, representatives, attorneys and employees may have under the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended. IN WITNESS WHEREOF, the Parties have executed this Lease as of the date first set forth above. TOWN OF VAIL Stan Zemler, Town Manager ATTEST: Patty McKenny, Town Clerk Resolution No. 15, Series 2016 STATE OF COLORADO ) ss. COUNTY OF BETTY FORD ALPINE GARDENS The foregoing instrument was acknowledged before me this day of March, 2016, by as of Betty Ford Alpine Gardens, a Colorado nonprofit corporation. My commission expires: Notary Resolution No. 15, Series 2016 N n F co `1 O �e 3 � I 1 t 1°l 0 IU 4W V Nu ,VA EXHIBIT A-1 SE �, 6/16/2015 FORD PARK - LEASE PARCELS SE ,%06-472 / TOWN OF VAIL �� • 0e-472 �—, I � 1 EAGLE COUNTY, COLORADO u c O> o' o LL m O w LL O Cr 00 c m 0 m 0 m u a 0 a O m LL LL (7 a 01 > �- Q > > m > > > m m > m S ro > 0 c v c l7 c 0> '` O LL O O O O O LL LL l7 y w o m w > Q cc w of Q Q w > > Q c > H O > > > m > > > L.L. m > > > m cr c� C > O .` lu �J X W a) C. 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