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2018-06-07 Temporary Licence and Access Agreement (Deaf Camp 2018 Fully Executed) (48549205v1).pdfTEMPORARY LICENSE AND ACCESS AGREEMENT This Temporary License and Access Agreement (this "Agreement") is made and entered into as of the 31 day of May, 2018, by and between SILVERTREE PROPCO, L,L.C., a Delaware limited liability company ("Owner"), and ASPEN CAMP OF THE DEAF AND HARD OF HEARING, INC., DBA ASPEN CAMP SPICES, a Colorado non-profit corporation (the "ADC"). This Agreement is made with reference to and in reliance upon the following facts: A. Owner is the owner of certain real property in the Town of Snowmass Village, State of Colorado, commonly known as the Westin Snowmass Resort, 100 Elbert Lane, Snowmass Village, Colorado 81615, which includes for purposes of this Agreement a portion of the Snowmass Village Mall consisting of pedestrian walkways and common areas surrounding the retail businesses at the mall level of the Westin Snowmass Resort (the "Property"). B. The ADC ("Licensee") intends to hold certain "Special Events" (as defined in Section 2 below), and desires to use the Property for purposes of ingress and egress to and from the Special Events. C. Owner is willing to grant a license to Licensee, for the purposes stated in this Agreement, on the terms and subject to the conditions set forth below. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and for other good, and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Grant of License. From and after the date hereof, Owner hereby grants to Licensee (and Licensee's agents, guests and invitees) the non-exclusive right and license (the "License") to enter upon the surface of the Property, for the purposes described in Section 2 below; provided, however, that in conducting all such activities, Licensee shall comply with all laws and regulations applicable to such use of the Property or such activities, and shall obtain and maintain the insurance described in Section 3 of this Agreement. The use of the License shall be limited in duration to two hours prior and one hour after the times of actual Special Events on the dates listed. 1.1 Owner and its contractors, subcontractors, agents, guests and invitees shall have the right to use and occupy the Property for any purpose not inconsistent with the License rights hereby granted. 1.2 This Agreement is personal to Owner and Licensee and: shall not run with title to the Property. 2. Licensee's Acti ities. Licensee is engaging in non-profitactivities-on controlled by the Town of Snowmass Village, a home rule municipality ("Town"), a potentially including the Fanny Hill ski slope and Town public rights-of►vays, for xvhich acc ; to and from the Special Events is necessary and permitted under this License; J i 1 Ac[ivd*352066.1 2.1 The "Thursday Night Free Concerts" to be held on June 9, 14, 21, 28, July 5, 12, 19, 26, August 2, 9, 16, 2.2 Craft Beer Rendezvous" to be held on June 9, 2018 and Deaf Camp Benefit July 21, 2018; and will consist of activities, including, but not limited to, live music and shall constitute the allowed special events (the "Special Events"). Licensee does anticipate serving alcoholic beverages at the Special Events and Owner grants permission to do so provided Licensee obtains liquor license permit(s) from the Town and/or the State of Colorado for serving alcohol at the Special Events, and further provided Licensee shall have the sole and exclusive obligation of obtaining such permit(s), complying with the terms of such permit(s), indemnifying the Owner and Owner's lender, and providing insurance as provided below. 3. Insurance and Indemnity. Licensee covenants and agrees to maintain throughout the term of this Agreement, to obtain and maintain, in full force and effect, liability insurance, including liquor liability and `dram shop' liability, in an amount not less than $1 million per occurrence and $2 million aggregate naming Owner and Owner's lender Bank of America, N. A., a national banking association, as additional insureds. Proof of insurance will be provided to the Owner prior to the Special Events, as well as any other documents or certificates as may reasonably be required by Owner or its lenders. Licensee will save, indemnify, and hold Owner and any of Owner's lenders harmless from and against any claims, demands, losses, liabilities, actions, and causes of action, including reasonable attorneys' fees and costs incurred by Owner and any of Owner's lenders that are related to or arise from personal injury or property damage arising out of the use of the Property. 4. Liens. Licensee shall promptly, but in no event not later than forty-five (45) days after the filing thereof, remove of record any liens filed by any contractor, subcontractor, or materialman in connection with the activities contemplated under this Agreement. 5. Term. This Agreement shall commence upon the full execution and delivery of this Agreement by all parties hereto, and will terminate on August 16, 2018. Notwithstanding the termination of the Agreement, Sections 3 through 8 of this Agreement shall remain in full force and effect. 6. Breach Remedies and Attorneys' Nees. In the event of any alleged breach or default under this Agreement, the party claiming the alleged breach or default will give written notice to the other party specifying the alleged breach or default. The other party shall have five (5) days within which to cure any alleged breach or default, or if the alleged breach or default is not reasonably capable of being cured within such 5 -day period, the other party shall commence to cure within such 5 -day period and promptly and diligently pursue completion of the cure of thereafter within no more than thirty (30) days. In the event of an uncured breach or default, and either party deems it necessary to take legal action to enforce or defend any part of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and other costs incurred in such action or proceeding, in addition to any other relief to which such party may be entitled. In any such proceeding, all parties waive their right to demand a jury. The 2 Active/48352066.1 parties agree that injunctive relief may be appropriate in the event of a breach of this Agreement and that a decree of specific performance may be granted by the court.. 7. Notices. All notices and other communications hereunder shall be in writing, and shall be deemed to have been duly given when delivered in person, or on the third day after mailing, if mailed certified mail, postage prepaid and property addressed as follows: If to Owner: SILVERTREE PROPCO, L.L.0 c/o Robert Geimer, Executive Vice President 400 Galleria Parkway, Suite 1450 Atlanta, GA 30339 With Copy to: B. Joseph Krabaeher S14ERMAN & HOWARD, L.L.0 730 East Durant Avenue, Suite 200 Aspen, CO 81611 If to Licensee: ASPEN CAMP OF THE DEAF AND HARD OF HEARING, INC. c/o Lesa Thomas 4862 Snowmass Creek Road Snowmass CO 81654 8. Miscellaneous. The terms and conditions herein contained shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. This Agreement shall not be recorded in the real estate records of the Clerk and Recorder of Pitkin County, Colorado. This Agreement shall be construed in connection with the laws of the State of Colorado. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect and shall in no way be impaired or invalidated, and the parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent and economic effect of the invalid or unenforceable provisions. This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof and cannot be amended or modified except by a written agreement executed by each of the parties hereto. The Section captions and headings used in this Agreement are inserted herein for convenience of reference only and shall not be deemed to define, limit or construe the provisions hereof. This Agreement may be executed in one or more counterparts, each of which, for all purposes, shall be deemed an original and all such counterparts, taken together, shall constitute one and the same instrument. Signatures hereto may be evidenced by facsimile transmission, the same of which shall be treated as originals. I.Remainder of this page is intentionally blank — signatures appear on following pages] Activc/48352066.1 IN WITNESS WHEREOF, the parties have executed this Temporary Access and License Agreement to be effective as of the date first set forth above. SILVERTREE PROPCO, L.L.C., A Delaware limited liability company By:Pert r % 4 Name:;01 eimer Title: Sr.V.P. [Remainder of this page is intentionally blank — signature appears on following page] Active/48352066.1 IN WITNESS WHEREOF, the parties have executed this Temporary Access and License Agreement to be effective as of the date first set forth above. ASPEN CAMP OF THE DEAF AND HARD Q HEARING, INC. By: N e: Lesa Thomas Title: Executive Director Activel48352066.1