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Home My WebLink Aboutbocc.con.329.22 - BOCCORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, AMENDING ORDINANCE NO. 017-2022 AND APPROVING A THIRD AMENDMENT TO A LEASE AGREEMENT BETWEEN JEDEDIAH ASPEN, LLC AND THE BOARD OF COUNTY COMMISSIONERS FOR THE FOOD AND BEVERAGE CONCESSION AT THE ASPEN/PITKIN COUNTY/SARDY FIELD AIRPORT ORDINANCE NO. 046-2022 RECITALS WHEREAS, pursuant to 30-35-301 C.R.S., the Board of County Commissioners (“BOCC”) of Pitkin County, Colorado a Home Rule County is authorized to make and publish ordinances for carrying into effect or discharging the powers and duties conferred upon such counties by law and as seems necessary and; WHEREAS, pursuant to Section 2.8.1 of the Home Rule Charter (“HRC”), the BOCC is authorized to take official action by Ordinance for certain matters where action is prescribed pursuant to the Colorado Revised Statutes as amended and; WHEREAS, Pitkin County is the owner and operator of the Aspen/Pitkin County/Sardy Field Airport (“Airport”), and does maintain various spaces for the public and from time to time does lease the use of parts of these areas to various individuals, firms, companies or corporations to serve the users of the Airport and; WHEREAS, pursuant to Ordinance No. 021-2017, the BOCC entered into a lease agreement with Jedediah Aspen, LLC (“JALLC”) d/b/a Jedediah’s Catering & Concessions for operation of a food and beverage concession at the Airport through July 31, 2022 and; WHEREAS, pursuant to Ordinance No. 025-2021, the BOCC approved a first amendment to Ordinance No. 021-2017 amending the lease agreement to extend the square footage of the concession boundary area into the secured passenger area of the airport, and; WHEREAS, pursuant to Ordinance No. 001-2022, the BOCC approved a second amendment to Ordinance No. 021-2017 amending the lease agreement to extend the term of the lease agreement through December 31, 2022, to coincide with the term of the liquor license held by Jedediah Aspen, LLC., and; WHEREAS, negotiations for a third amendment to the lease agreement between the County and Jedediah Aspen, LLC., resulted in a proposed addendum to a lease agreement, which includes a revised Minimum Annual Guarantee (MAG), an enhanced percentage override scale, inclusion of new business revenue and an increased utility expense contribution more fully described in Exhibit A attached hereto, and; Contract No. 329-2022 Attached WHEREAS, with the exception of the amendments described in Exhibit A of the lease agreement attached hereto, all the remaining terms, conditions and obligations of the Lease shall remain in full force and effect, and; WHEREAS, the BOCC finds that adoption of this ordinance is in the best interest of the citizens of and the visitors to Pitkin County. NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that: 1. It hereby adopts an Ordinance Amending Ordinance No. 021-2017 and Approving a Third Amendment to a Lease Agreement between Jedediah Aspen, LLC. and the Board of County Commissioners for the Food and Beverage Concession at the Aspen/Pitkin County/Sardy Field Airport, and; 2. It hereby authorizes the Chair or the Chair’s designee to sign the Ordinance and upon the satisfaction of the County Attorney as to form, execute any other associated documents necessary to complete this matter. INTRODUCED AND FIRST READ ON THE 7TH DAY OF DECEMBER, 2022 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE 21ST DAY OF DECEMBER 2022. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE ORDINANCE PUBLISHED IN THE ASPEN DAILY NEWS ON THE 8TH DAY OF DECEMBER, 2022. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE 8TH DAY OF DECEMBER 2022. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE 21ST DAY OF DECEMBER 2022. POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE 22ND DAY OF DECEMBER, 2022. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN DAILY NEWS ON THE 29TH DAY OF DECEMBER, 2022. ATTEST: BOARD OF COUNTY COMMISSIONERS By _________________________ By: _____________________________ Julia Ely Patti Clapper, Chair Deputy County Clerk Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL ___________________________ _________________________________ John Ely, County Attorney Phylis Mattice for Jon Peacock, County Manager Dec-22-2022 EXHIBIT A THIRD AMENDMENT TO LEASE AGREEMENT (Aspen/Pitkin County Airport) THIS THIRD AMENDMENT TO LEASE AGREEMENT (HEREINAFTER “Addendum”), effective as of _____________, is entered into by and between THE BOARD OF COUNTY COMMIMSISONERS OF PITKIN COUNTY, COLORADO (“Lessor”) and Jedediah Aspen, LLC, A Wyoming limited liability company (“Lessee”) (Lessor and Lessee are sometimes collectively referred to as the (“Parties”) WHEREAS, Lessor and Lessee are parties to that certain Lease Agreement dated August 1, 2017 and as amended on June 23, 2021 and further amended on January 12, 2022 (the “Lease”) to occupy space described Restaurant The exclusive occupancy and use of the Restaurant and Bar Area (1,780 sq. ft.), Specialty Drinks and Snacks (195 sq. ft.), and Seasonal Counter (319 sq. ft.). and; i.The Premises shall include the metal partition, display window,locks, keys, plate glass, ceiling, floor covering and utility fixtures and outlets.ii.The exclusive occupancy and use of the Retail Concessions (270 sq. ft.). The Premises shall include the metal partition, display window, locks, keys, plate glass, ceiling, floor covering and utility fixtures and outlets (Exhibit A) of the lease agreement attached to Ordnance No.025-2021.iii.As appurtenances to the exclusive-use space, the limited, non-exclusive use for ingress, egress, and other purposes specificallynoted, of the following: 1)Areas immediately outside the access door of the shop, for thelocation of moveable, temporary sales display fixtures, so long assuch displays are approved in writing by the Director of Aviation,or designee. 2)Entryways, exit ways, driveways and internal circulation areas appurtenant to the above-described areas, subject to rules andregulations in common with other users of Lessee’s classification.3)Areas made available to the public (waiting rooms, concessions,restrooms), subject to rules and regulations in common with other users of Lessee’s classification. 4)Employee parking spaces, upon request by Lessee and if then-available, subject to numbers of spaces, fees, costs, rules andregulations established by the County (and payable directly to theAirport). 5)Pursuant to the amended lease dated June 25, 2021, lessee was given the right to expand the liquor license service area into theentire secure passenger area adjacent to the Retail Concessionarea as depicted on Exhibit B of the lease agreement attached toOrdinance No. 025-2021. Dec-23-2022 Contract No. 329-2022 WHEREAS, pursuant to Ordinance No. 021-2017, the BOCC entered into a lease agreement with Jedediah Aspen, LLC (“JALLC”) d/b/a Jedediah’s Catering & Concessions for operation of a food and beverage concession at the Airport through July 31, 2022 and; WHEREAS, pursuant to Ordinance No. 025-2021, the BOCC approved a first amendment to Ordinance No. 021-2017 amending the lease agreement to extend the square footage of the concession boundary area into the secured passenger area of the airport, and; WHEREAS, pursuant to Ordinance No. 001-2022, the BOCC approved a second amendment to Ordinance No. 021-2017 amending the lease agreement to extend the term of the lease agreement through December 31, 2022, to coincide with the term of the liquor license held by Jedediah Aspen, LLC., and; WHEREAS, in accordance with Section A.4.a.i. of the Lease, as amended by the Second Amendment to Lease Agreement executed January 13, 2022 and approved by the County effective January 20, 2022, the County has notified Lessee that it is exercising its right to renew the Lease, initiating a one-year Renewal Term beginning January 1, 2023 and continuing until December 31, 2023. Except as amended by this Addendum, the County and Lessee agree to continue to abide by the terms of the Lease throughout the Renewal Term, and; WHEREAS, Pursuant to Section 29 of the Lease, County and Lessee hereby agree to amend the Lease as follows: a. Section B.1.a.i. – B.1.a.iii. shall be deleted in their entirety and replaced with the following: “i. The Minimum Annual Guarantee (“MAG”) for the Renewal Term of this Addendum is Two Hundred Thousand Dollars and No Cents ($200,000.00). ii. The Percentage Override for the combined food and beverage operations and retail operations shall be as follows, all referencing the prior year’s Gross Revenues: 1) $0 - $2,000,000, PO shall be thirteen percent (13%) 2) $2,000,000 - $2,500,000, PO shall be fourteen percent (14%) 3) $2,500,000 - $2,750,000, PO shall be fifteen percent (15%) 4) $2,750,000 - $3,000,000, PO shall be sixteen percent (16%) 5) $3,000,000 and above, PO shall be seventeen percent (17%) iii. DELETED.” b. Section B.1.b. shall be deleted in its entirety and replaced with the following: “b. Utilities: The Airport shall provide Utilities as described herein, payment for these Utilities shall be One Thousand dollars and No cents ($1,000.00) per month.” c. Section B.3.e. shall be amended by adding the text underlined below: “ e. “Gross Sales” as used in this Lease shall mean the full amount of the actual sales price of all merchandise or services sold for cash or credit in or from the Premises by Lessee or any permitted sub-lessees or sub- licensees and all amounts received by Lessee, or which Lessee is entitled to receive, from transactions on, from or through the Premises, including the FBO and in-flight catering operations performed at the Airport, or to persons who have deplaned at the Airport, and for all other services and activities in connection with its food and beverage, in-flight catering services, and retail concession and operating privileges on the Airport and/or FBO. The figure for gross sales will include deposits not refunded to customers, orders of any kind received or filled at the Premises, including the FBO and in-flight catering, whether or not food, beverage, or merchandise was produced on the Premises, and any other receipts which Lessee ordinarily would credit to its business. Each credit or installment sale will be treated as a sale for the full price in the month it is made, and there will be no deductions for uncollected or uncollectible amounts or bad debts. Gross Sales to the Lessee shall be deemed received at the time the sales, lease or service transaction occurs giving rise to Lessee’s right to collect said monies, regardless of whether said transaction was conducted in person, by telephone, by wire, by mail or by any other method of information transmission, whether the transaction was for cash or credit, and if for credit, regardless of whether the Lessee ultimately collects the monies owed for said transaction from customer involved.” In all other respects, the Lease is in full force and effect and remains unchanged by this Addendum. Lessor: Lessee: Board of County Commissioners of Pitkin County, Colorado Patti Clapper, Chair Date Jedediah Aspen LLC Mike Gierau Date APPROVED AS TO FORM: John Ely, County Attorney Date Dec-22-2022 Dec-22-2022 Dec-23-2022