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6A - Public Hearing and consideration of a motion to City Council to approve a ten year agreement wiCITY Or BOULDER PARKS AND RECREATION ADVISORY BOARD AGENDAITEM M~ETING DATE: 5eptember 22, 2003 AGENDA TITLE: Public hearmg and consideration of a motion Co City Council to approve a ten year agreement wrth Viola E Haertlmg for lease of City parkland ad~acent lo Cenlral Park far outdoor restaurant pat~o purposes PRES~NTERS: Jan Geden, CPRP, Duector, Parks and Recreation Department Douglas Hawthorne, CPRP, Parks Supermtendent, Parks and Recreation Department J~m Schmidt, Property Agent, Real Estate Drvision, Mountain Parks/Open Space Deparlment EXECUTIVF. SUMMARY: Staff is requestmg Che Pa~ ks and Recreation Advisory Board approval of a motion to CtCy Council for a ten year lease (with the lease rate to be renegot~ated after five years) of park lands located ad~acent to 1718 Broadway along Boulder Creek in Central Park for use as an outdoor restauiant patio Please refei to the Central Park Vicimty Map attached as Attachment A Pursuant to Charter Section 164, park lands may be leased only upon the affirmative vote of at least four members of the Parks and Recreation Advisory Board Smce the proposed lease is for ten years, Yhe final approvmg authonty m this issue ~s wilh City Council Fiscal Impacts: BudEetarv The Haerthng's will pay to Lhe Cily $325 00 per month for rental of Yhe property. This monthly rent will be ad~usted yearly for changes m the Consumer Pr~ce Index. At the end of the firsl five years, Che CiCy will have the right to renegot~ate the rental amounts due for the subsequenC five years on the lease term and to mcrease the base rental for the next five yeais to an amount lhat is no higher than 125% of the then current monthly rental. AGF.NDA ITEM # VI-A PAGF 1 Staff Time. Work to negotiate and mange th~s lease will be a parY of the normal work plan Staff recommendation: Staff recommends thal the Parks and Recreation Advisoiy Board approve a motion to City Council to lease park lands in Cential Park, pursuant to Chaiter Section 164• 1) the lease of Park Propeity as set forCh in the Agieement between the City and Viola E Haertlmg attached as Attachment B Analysis: The City has leased a small partion of parkland m Central Park Yo the Haertlmg family smce 1976. The lcased park area ~s approximately 4,600 square feet m size and has been used as a patio amenity to Che adjacenC restaurant buildmg owned by the Haerthng family. Attachments C are photographs of the site. When the City mitially leased the park property to the Haeilling family, the park area was an under-utilized, overgrown parcel of land separated from the mam area of Central Park by Boulder Creek and separated from Boulder Creek itself by a reta~mng wall. All patio improvemenCs and ameniCtes on the lcased premises were constructed by tUe Haertlmg family at theu sole axpense. These improvements belong to the Haertling family and can be iemoved by thetn aC Lhe expiration of lhe current lease The ongmal lease negotiated m 1976 was far a 5 yeai period and subsequent leases were entered into for 5 year periods until 1995 In 1996, the leases became year-to-year, as lhe City began the plannmg process for lhe new bndge across Boulder Creek and the Broadway widenmg pio~ect. It was deteimmed that wrth the potenl~al construclion, there would be unknown impacts on the park area and the decision was made to negotiate year to year leaaes after that time. These year-Co-year leases contmued through 2001 at which time the lease was negotialed on a month-W-month basis until such time as the Broadway conslruction impacts weie completed. The City has given the Haerlling fairuly a first right of refiisal on the patio space for a long-term lease. Now that the construction is windmg down, Haertlmg has asked the City to enter mto a long-term lease for 10 years The City has no currently identificd use for this space The rental amount is ad~usted annually to reflect cosL of livmg mcreases in the greatex metro Denver - Boulder area and will be renegotiated at lhe conclusion of the ftret 5 years. At the end of the first five (5) years, the City will have Che right to renegotiate Yhe rental amounts due for the subsequent five (5) years on the lease term and to mcrease the base renCal far the next five (5) years to an amount that ~s no higher than 125% of the then current monthly rental Additionally, the City will document the begmning condition of the improvements by a video taped walk-through mspeclton as well as a wrrtten mspection reporC wrth the Haertlmg Family AY thc Cermmation of the leasehold, all improvements affixed to Che prerruses shall become the sole property of the City. The City can assess damages for any improvements which ai e m a deCeriorated or damaged condition at the end of the leasehold, compared to the condition documented durmg the mitial walk-through. All AGENDA IT~M # VI-A PAGE 2 wark done by the Haertlmg Family pursuant w~ll be done at ~ts sole cost and m strict compliance wiCh all buildmg laws, ordmances and regulations applicable thereCo and free of inechamc's liens and material men's liens. ATTACHMENTS: A. Central Park vicinrty map B. Lease Agreement between the City and Viola E Haertlmg C. Photographs of Lease Srte AGTNDA ITEM # VI-A PAGE 3 Ai:tachr~~ic.r~t t~ ~~,~~ ~„ ~ ,~ ~ ~ ~ ~ ~ ~ ` ~.' ~~ . ~ ~ ~~ $ :~ ~ , ~ _ ~ d ~ , ~ ~ , ,~ ~ , ~ _ . ; , ~ ~ ~ ~ ' ~~ ,~~., _ ,~-. i~. .-E'. ~ ~ ` _ I .. , _:i ;J '~i c .Il~4.lll~1:~.~E ~ ~ Attachment B LEASE AGREEM~NT Th~s LEASS AGREEMENT, made and entered mto this _day of , 2003, by and between the Cily of Boulde~, a Colorado home rule city, hetemaftet referred to as "Landlord", and Viola E Haerthng, heremafter referred Co as "Tenant", WITNESSETH, as follows ARTICLE I PREMISES Landlord, foi and m cons~deration of the rents, covenanCS, agreements and condiuons heremafter mentioned to be kept and perfoimed by Tenant, has thts d1y rented, leased and Ict, and by these presents does rent, ]ease and let unto Tenant certam premises m the CiCy of Boulder and County of Boulder, SCate of Colorado, described m Exhibit A attached hereCo ARTICLT II TERM OF LEASE The term of this lease shall be for a penod of len (10) ycars commencmg on , 2003, unless this leasc is tetmmated eaiher m accordance with the provisions contamed herem ARTICLE III RENT For the use of said prem~ses, Landlord reserves and Tenant covenants and agrees to pay to Landlord aC City ot Boulder, D~rector of Parks and Recreahon Department, P O Box 791, Boulder, Colorado 80306, for the first yeai a ient of $325 00 per monCh m advance due on the first day of each month At the start of each twelve-month period afCer the first year the monthly rental payment for that peuod will be ad~usted to reflect changes m the Consumer Pitce Index (CP~) for the Denver metropolitan area and rounded up to the next Yughest dollar AC the end of the first hve (5) years, the Landloid reserves the right to renegotiate the rental amounts due for the subseque~t five (5) years on the lease term and to mcrease the base rental for the next five (5) years Io an amount that is no highec than 125% of the then cuirent monthly rental ARTICLEIV TAXES As a fu~ Cher considerauon for the leasing afoiesaid, and as addihonal rental heeeunder, durmg the tarm oi lhe leasc and any extension thereof, Tenant covenants and agrees to bear, pay and d~scharge, before delinquency thereof, all real and pusonal pcoperty taxes and assessments, general and npecial, wh~ch may be taxed, charged, levied, asscened or imposed upov or against or be payable for or m respect to the leased premises or any part thereof, oi the improvements at any time Chereon, mcludmg any new taxes and assessments not ot the kind enumeratcd above ARTICLE V USE OF PR$MISES Tenant shall have the right to use the leased prem~se.ti for outdoor restaura~t patio purposes and all related purposes as may bc xeasonably mcident thereto Hae~tlmg Lease 2003 AGENDA ITEM #~~~ PAGEJ ARTICLE VI LANDLORD NOT LIABLE FOR PROPERTY ON DEMI5ED PREMISES All properry of every kmd wluch may be on the demised piemises durmg the term hereof shall be at the sole r~sk of the Tenant or those claimmg under her, and the Landlord shall not be liable to the Tenant, rts agents, employees, tenants, subtenants or any othei person whatsoever for m~ury or death to any person or damage to or loss ot the property m or upon Che demised premises oc upon the s~dewalks, alleys, and passageways contiguous or appertammg thereto, which may arise or be alleged by reason of or m connection wrth TenanYs use and occupancy oP the demised premises durmg the teim hereof, and Te~ant hereby covenants and agrees to assume any and all liabihty and expense therefore and to save the landlord harmless therefrom and to piovide msurance undei Article X to guacantee the perl'o~ mance of such hold haimless cove~anC ARTICLE VII POSSESSION DATE Posseseion of the lcased piemises m the~c exisCmg conditions shall be delivered to, and will be accepted by, Tenant on the date of commencement of th~s Lease as above written ARTICLE VIII IMPROVEMENTS The Tenant, pursuant to the Cerms and conditions of the pctor leases, has made certam improvements on Che leased prcmises for the exisung outdoor patio and resCauiant operatio~. These improvements mclude, but are not hmrted to, concrete flooung, tables, chairs, umbrellas, slaits, railmgs, gates, doors, and decorative iron-works. All these ~mprovements shall be maintamed throughout the leasehold period m at leasY as good a condition as existmg at the begmnmg of thts lcase Thc Landlord and Tena~C shall document the begmmng condition ot the improvements by a walk-through mspecCion whei em the condihon of the improvements shall be recorded on a video tape made at that hme, as well as a wntten checkhst of the cond~tion of the various ilems AC the end of the firsl five-year period under this lease when Che parties are ncgoYiatmg the rental amount for the next f~ve year period, the Laudlord shall walk Chrough the demised piem~ses agam and document the condition of the improvements and assess damages agamst the Tenant foi the repa~r and/ar the replacement of any impmvements wh~ch are m a deteriorated oi damaged condnion compared to the condrtion documented duxmg the imC~al walk- through Agam at the end of the leasehold, the Landlord shall assess damages agamsC the Tenant for lhe repatr and/or the replacement of any imptovements which aie m a detenorated or damaged condition compaied to the condidon documented durmg the walk-through at the end of the first five-year period At Che termmation oY th~s leasehold, all improvements affixed to the demised premises shall become the sole property oP thc Landlord All work done by the Tena~t pursuant Co this ArCicle shall be done at ~ts sole cost and m strict compliance wiCh all buildmg laws, ordmances and regulations apphcable theieto and free of inechamc's hens and maCerialmeds hens ARTICLE IX ASSIGNMENT AND SUBLETTING Tenant may assign this Lease, or sublet the premtses hereby leased or any part thereof; provided, however, it is only foi uses as set foith m Article V Haertlmg Lease 2003 AGENDA ITEM #](J_~, PAGE~(~, ARTICL~ X INSURANCE The Lessee agiees to mdemnify and hold the Lessor harmless from any and all actions or causes of aclion for damages arismg from the negligent or willful conshuction, operation, use, oi mamtenance of Chat portion of the Lessee's said leased prem~ses mcludmg the acts of Lessec's eontractois, subcontcactors, employees, or tenants Lessee shall be liable for and agrees to, at Lessee's sole expense, mamtam, or cause to be mamtamed w~th msucers approved by Lessor, a comprehensive geneial liability msurance pohcy wrth hmtts of habilrty of noC less than $150,000 per person and $600,000 per occuirence foi m~ury Yo persons or property, mcludmg death resulhng theretrom The above stated policy hmits shall be raised by Lessoi to meet any higher hmits on liability cieated by amendments to the Colorado Governmental lmmumty Act, Sechon 24-10-101, et seq , C R S The City and rts officers, agents, and employees sh211 be named as additional msureds on all msurance policies provided by Che Lessee under this lease Lessee shall provide Lessor with a Certificate oi Insurance as evidence of comphance with the provisions of this paragraph Lessee fucther shall provide Lessor with a Cei hficate of Intiurance if the pohcy is renewed or changed during the term of Lhe Lease This policy shall stand as the primary liability policy wrth respect to any mterest the Lessor may have m thts property This policy shall remam m effect for the duraCion of the Leasc Lessee shall nohfy the Lessor thirly (30) days piioi to Che cancellation of msurance coverage All msurance policies and certii~catcs shall be submRted prioi to the execuhon of lhe Lease and shall be sub~ect to the approval by the Letisor ARTICLE XI REMEDY UPON DEFAULT In the event lhat Tenanl at any hme shalL tail to pay any mstallment of rent withm twenty (20) days after writCen notice Chat the same was not paid when due oi m the event Tenant shall fail or neglect to perform oi observe any other covenant oi co~dihon herem contamed on TenanYs part to be peiioimcd or observed for twenty (20) days aYtec wntten noticc of such default from Landloid to all pei sons entitled to notice hereundei, this lease shall be forfeited at the election of Landlord without fucther notice to Tenant or any other person or orgamzadon, and the obligauons of all pathes hereunder shall thereupon termmate, provided, however, if any default for which notice has been g~ven as aforesaid is remedied withm the grace period stated m this sectioo, then th~s lease shall be considered to be m full force and effect, the same as it no default had occuried If the demised premises shall be abandoned or vacated by the Tenant before the end of the term of this lease, or if Tenant shall suffex the rent to remam m arrears oi other breach to conhnue after wiitten noticc has been given by Landlord as provided in this Artrcle, Landloid may, at ~ts ophon, w~thout teimmation of this lease and without furChei ~ohce, entei the demised premtses and take possession of any improvements thereon and still hold Tenant responsible for the rent payable hereunder ARTICLE XII SURRENDER OF POSSESSION At Che end oi early termmation of the lease term, Tenant shall surrender immediate possession of the leased premises and all improvements then on the same to Landlord, who shall Hae~tlmg Lease 2003 AGENDA ITEM #/ I-~ ~ PAGE~,i, then be and become the owner thereof If possession is not immed~ately suirendered, Landlord, wiCh or without process of law, may forthwiCh ie-enLer said piemises and iepossess the same or any part thereof and expel and iemove therefrom, unmg such fo~ce as may be necessary, all persons and propeity except as prov~ded for m lhis lease, wilhou[ be~ug deemed guilty of an unlawful act a~d wrthout pre~udice to any othcr legal remedy available to Landlord while at tlie same lime holdmg Tenant for the renC payable heieunder ARTICL~ XIII NOTICES All nohces required to be given o~ des~red to be given hereunder shall be m wxiCmg and shall be deemed duly served for all putposes a) Upon Landlord by madmg a copy the~ eof by registe~ ed or certified mail, postagc prepaid, addiessed to the Ciry of Boulder, Directot of the Depattment of Parks and Recreahon, P O Box 791, Boulder , Colorado 80306 b) Upon Tenant by mailmg a copy thereof by registcied or certified mail, postage prepaid, addiessed to Tenant at c) Any person entitled to notice may des~gnate m writmg a different address IN WITNESS WHEREOF, the parties hereto have executed this lease, m duplicate, as of the day and yeai fiitit above wriCCen LANDLORD TENANT CITY OF BOULDER By Fiank W Bruno, CiCy Manager Viola S. Haerthng By John Haertlmg, her Attorney-m-FacY ATTEST City Clerk on behalf of the Director of Finance and Record Approved as to form Crty ACCOrney Hacrthug C.ease 2003 A~ENDA ITEM # ~1/I-A ~ PAGE~. Attacl~ment C - ) AGENDA ITEIN #,~~,, ~'AG~..~.. Altachn~~ent C-~ AOENDA ITEM #~, PACE~