HomeMy WebLinkAboutresolution.council.072-08RESOLUTION NO. ~~
Series of 2008
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A CONTRACT FOR ASSIGNMENT OF THE LEASE FOR
OPERATING CONCESSIONS AT THE ASPEN RECREATION CENTER, BETWEEN
THE CITY OF ASPEN AND ZG HOLDINGS LLC TO FUTURE CHAMPS LLC, AND
AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE SAID
CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council An Assignment of
Lease and Consent for Assignment for the operation of the concessions for the Aspen
Recreation Center, between the City of Aspen, ZG Holdings, LLC to Future Champs
LLC, a true and accurate copy of which is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY
OF ASPEN, COLORADO:
That the City Council of the City of Aspen hereby approves that Assignment of
Lease and Consent for Assignment for the operation of the concessions for the Aspen
Recreation Center, between the City of Aspen, ZG Holdings LLC to Future Champs
LLC, a copy of which is annexed hereto and incorporated herein, and does hereby
authorize the Mayor or City Manager to execute said agreement on behalf of the City of
Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the ~ day of ~, 2008.
~~~
Michael C. Ire and, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City Council of the
City of Aspen, Colorado, at a meeting held on the da erein ove stated
Kathryn S. h, C' y Clerk
G:\taraV2ESOS\ARC.concessions.(uNre champs.doc
ASSIGNMENT OF LEASE AND CONSENT FOR ASSIGNMENT
This Agreement is made and entered into this Z l m day of July 2008, between Graham
Frandson; as manager of ZG Holdings, LLC, a Colorado limited liability company and Iona
Samokhina, as manager of Future Champs, LLC; with the consent of the City of Aspen, as set
forth below.
Recitals:
A. ZG Holdings, LLC (herein "ZG Holdings") is the Tenant under a certain Lease
Agreement dated February 26, 2007, between the City of Aspen as the Landlord, and as
evidenced by the written document captioned "Lease Agreement Concession Facility at Aspen
Recreation Center," (herein "Aspen Lease") .
B. ZG Holdings wishes to sell, transfer, convey, and assign the Aspen Lease to Future
Champs, LLC (herein "Future Champs"), for good and valuable consideration
C. Matthew Zubrod (herein "Zubrod") is the guazantor of the Aspen Lease.
D. Future Champs wishes to acquire the Aspen Lease and be substituted as the tenant
therein.
NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of
which are hereby admitted and aclmowledged, the parties agree as follows:
Agreement:
The forgoing recitals aze true and correct.
2. By this instrument, duly delivered, ZG Holdings hereby transfers and conveys all the
rights and duties as the tenant under the Aspen Lease to Future Champs.
3. Future Champs hereby accepts the transfer and conveyance and agrees to be bound by
and liable to the City of Aspen as the Landlord under the Aspen Lease accruing on or after the
date hereof. Future Champs hereby agrees to indemnify, defend and hold ZG Holdings and
Zubrod harmless with regazd to any and all claims or causes of action, including costs and
reasonable attorney's fees, pertaining to the Aspen Lease to the extent same relate to the period
subsequent to the date hereof.
4. Future Champs hereby understands and agrees that Zubrod, individually and as
guazantor, and ZG Holdings, as the Tenant w7ll be released from any liability under the Aspen
Lease attributable to the period after the date hereof; and that going forwazd after acceptance of
the assignment of the Aspen Lease, Future Champs will be solely responsible for the full,
ASSIGNMENT OF LEASE AND CONSENT FOR ASSIGNMENT
complete, and timely performance of all of the terms, conditions, covenants, and requirements of
the Aspen Lease, including but not limited to payment of rent as set forth in the Aspen Lease.
5. The Aspen Lease at paragraph 22 requires the Landlord to consent to the assignment of
the Aspen Lease. City of Aspen, as Landlord, by its agent's signature below, hereby irrevocably
consents to the assignment and transfer of the Aspen Lease from ZG Holdings to Future Champs.
6. City of Aspen, as Landlord, represents to Future Champs that:
(a) The Aspen Lease is in full force and effect and has not been amended, modified,
supplemented or superseded, and constitutes the entire agreement between the tenant and the
City of Aspen with respect to the leased premises.
(b) Neither the tenant nor the undersigned landlord is in default under the Aspen Lease.
There is no defense, setoff, claim or counterclaim by or in favor of the undersigned landlord
against the tenant under the Aspen Lease or against the obligations of the tenant under the Aspen
Lease.
7, This Agreement may be executed in any number of counterparts each of which shall be
considered an original. Facsimile signatures shall be binding.
IN WITNESS WHEREOF, the parties have executed this forgoing instrument.
TENANT: SUCCESSO ENANT: ~~
THE ZG HOLDINGS , LLC FUTURE S, LL
~~~~~~~ _
Graham Frandson, Manager Inns S ~ a, M ager
CONSENT TO ASSIGNMENT:
THE CITY OF ASPEN
APPROVED AS TO FORM:
~`
APPROVED AS CONTENT:
l ~ / /`
Page 2 of 2
Aspen Recreation Center Concession Facility
Page 1
LEASE AGREEMENT
CONCESSION FACILITY AT ASPEN RECREATION CENTER
THIS LEASE AGREEMENT is made and entered into this 26th day of February ,
2007 by and between The City of Aspen, 130 South Galena Street, Aspen, Colorado. 81611
("Landlord") and ZG Holdings, LLC whose address is 0133 Prospector Road, Suite 4114B
Asuen, Colorado 81611 ("Tenant").
WITNESSETH:
WI~REAS, Landlord is the owner of the real property and all of the improvements
thereon, known as the Aspen Recreation Center, Iselin Park, and Rotary Park located in Pitkin
County, Colorado and described on Exhibit A attached hereto and incorporated herein by this
reference; and,
WI~REAS, Landlord desires to lease a certain portion of the Aspen Recreation Center,
consisting 'of approximately 299 squaee feet of concession space (including a kitchen area), the
exclusive right to vend from carts at Iselin and Rotary pazks, and vending from vending machines
as more specifically described in Exhibit A attached hereto and incorporated herein and referred
to herein as the "premises" or the "lease premises", in accordance with the terms and conditions
contained in this Lease Agreement; and,
WHEREAS, Tenant desires to lease from Landlord the Lease premises in accordance with
the terms and conditions contained in this Lease Agreement.
NOW, THEREFORE, for and in consideration of the payments to be made hereunder,
and in further consideration. of the terms, conditions, covenants and mutual promises contained
herein, the parties hereto agree as follows:
1. Lease of Premises. Landlord does hereby tent to Tenant the following described
premises, subject to the covenants and conditions hereinafter contained, to wit:
(a} That portion of the Aspen Recreation Center, Pitldn County,
Colorado, delineated and outlined in red on Exhibit A attached hereto
and incorporated herein, with a street address of 0895 Mazoon Creek
Road, constituting approximately 299 square feet of concession space;
and
(b) The right to vend upon Iselin Pazk and Rotary Park from a movable
cart; and
(d) The right to place fiuniture in an area adjacent to the concession
space to serve customers; provided, however, that Landlord grants prior
Aspen Recreation Center Concession Facility
Page 2
written approval to the location of the furniture and the type and design
of the furniture.
For the term, at the rents, and upon the conditions and covenants hereinafter set forth. Taking
possession of the lease premises by Tenant shall constitute acknowledgment that such premises
aze in good condition and neither the City of Aspen nor Landlord shall be required to make any
alterations thereto, unless agreed to in advance and in writing by Landlord.
2. Term. -
(a) Unless sooner temunated, as provided herein, the initial term of this Lease
Agreement shall be for a period of (3) years (the "Initial Term"). The Initial Term shall
commence at 12:00 A.M. on Sa', 2007, or the date that a certificate of occupancy or
temporary certificate of occupancy is issued by the Aspen/Pitkin County Environmental
Health deparhnent, whichever date is later, and shall expire at 12:00 noon three calendar
years later. A Lease Yeaz shall be a calendar yeaz starting on the commencement date of
the Initial Term through 12:00 P.M. of the following calendaz year and each calendar year
thereafter. Tenant's occupancy of the Leased Premises shall be limited by pazagraph 5,
below. If Tenant is not in default of the terms of this Agreement during the Initial Term,
Tenant shall have the right to renew this Agreement for two sepazate additional periods of
five years each. Renewal discussions shall commence no later than six months prior to
the expiration of the Initial Term, and conclude no later than three months before the
expiration of the Initial Term.
(b) In the event that a governmental authority, including Landlord, bans the sale of
certain goods or foods from the leased premises that represent ten percent (10%) or more
of Tenant's total gross sales as defined in paragraph 3(b) above, Tenant shall have the
right to terminate this Agreement upon sixty (60) days written notice to Landlord.
3. Rent. Tenant agrees to pay Landlord a fixed minimum annual rental for each
Lease Year during the term of this Lease Agreement, which initial rent shall be 0.00 per
squaze feet of space. This minimum rental is payable in equal monthly installments due
on the firsf day of each calendaz month during the term hereof without prior demand.
(a) In the event that this Lease Agreement is renewed following the Initial
Term in accordance with Paragraph 2(a), commencing at the start of the renewal period,
the minimum annual rental shall be adjusted upward, based upon increases (if any) in the
cost of living during (i) the preceding Initial Term (five Lease Years) for the first increase
for the first Lease Yeaz of the renewal term, and (ii) during the preceding Lease Yeaz for
every succeeding Lease Yeaz after the first Lease Yeaz of the renewal term, using the
"Price Index", all as more particulazly described in Exhibit D .appended and made a part
hereof as if fully set forth herein.
(b) In addition to the payment of the fixed minimum annual rental as
hereinabove provided, Tenant shall pay to Landlord during each Lease Year
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Aspen Recreation Center Concession Facility
Page 3
during the term hereof, including any renewal term, as percentage rental, a sum
equal to ems'-made in, on or from the Leased
Premises, without prior demand therefore and without any set-off or deduction
whatsoever.
i) Tenant shall pay his first installment ofpercentage rent on or before the
twentieth (20th) day of the calendaz month immediately after the one in which the
percentage rent became effective, and thereafter it shall pay the required percent
of each month's sales by the twentieth (20th) day of the following month. Tenant
shall also submit to Landlord an itemized statement of gross sales (as defined
below) and sales tax report for the preceding month on or before the twentieth
(20th) day of each calendar month during the term of this Lease and any renewal,
extensions, or holding over hereunder.
ii) In addition, within thirty (30) days after the end of each Lease
Yeaz, Tenant shall deliver to Landlord a written statement signed by a certified
public acconntant or by some other person acceptable to Landlord, setting forth
the amount of Tenant's gross sales for the preceding Lease Yeaz. The accountant
or other person shall certify that the gross sales have been computed in accordance
with the definition given below, and the statement shall be sufficiently detailed to
show it was in fact prepazed in accordance with such definition. If the percentage
rent for the Lease Yeaz is more than the total thereof actually paid by Tenant,
Tenant shall pay the balance due to Landlord within thirty (30) days of delivery of
the annual statement.
iii) The term "gross sales" as used in this Lease Agreement shall mean
the full amount of the actual sales price of all merchandise or services sold for
cash or credit in or from the Leased Premises by the Tenant, including any and all
sales from vending .machines and cart sales. The figure for gross sales will
include deposits not refunded to customers, orders of any kind received or filled at
the Leased Premises; receipts from vending machines located upon the Leased
Premises, receipts from all sales generated from the carts referenced in pazagraph
1(b), and any other receipts which the Tenant ordinarily would credit to his
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 accounts
or bad debts. The following items, if applicable, shall be deducted from gross
sales:
1) refunds or customer discounts included in gross
sales;
2) returns to shippers and manufacturers;
3) sales of trade fixtures or operating equipment;
4) sums received in settlement of claims of loss or
damage of merchandise;
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Aspen Recreation Center Concession Facility
Page 4
5) retail sales tax recorded at the time of each sale and
expressly chazged to the customer;
6) postage chazged to customers; and
7) co-operative advertising revenues provided by
suppliers.
8) All property and sales taxes paid by Tenant.
iv) In operating on the Leased Premises, the Tenant agrees to issue a
serially-numbered duplicate sales slip, invoice, non-resettable cash register
receipt, or other record approved by Landlord, with each sale of any kind. During
the term of the Lease, Tenant shall keep accurate records of all his operations.
These records shall conform to generally accepted accounting practices, and shall
include records of gross sales and of receipts and deliveries of all merchandise.
Tenant shall keep all the documents relating to Tenant's operafions for at least
thirty-six (36) months firom the end of the Lease Yeaz to which they apply. If any
audit is required, or Tenant and Landlord disagree about the rent, Tenant will keep
its records until the audit is completed or the disagreement is settled.
v) At any reasonable time, and following at least twenty-four (24)
hours notice in writing to Tenant, Landlord or Landlord's authorized
representative may audit any of Tenant's records of gross sales. If, when Landlord
audits the records for a Lease Yeaz based on normal accounting procedures, it
finds that the Tenant has understated its gross sales for the Lease Yeaz by five
percent (5%j or more, Tenant shall be required to pay for the audit, and shall
promptly deliver to Landlord the difference Tenant owes it, plus interest on such
difference at the rate of eighteen percent (18%) per annum from the fiist day of
the current Lease Yeaz to the date such difference is paid. If such audit discloses
that Tenant has understated his gross sales for that Lease Year by five percent
(5%) or more, Landlord shall be permitted to treat such event as a material default
hereunder. In this matter, the report of Landlord's accountant shall be binding and
conclusive.
4. Equipment, Fixtures and Finishes Provided by Landlord and Tenant.
(a) Tenant represents that he has had an opportunity to review the building plans for
the Leased Premises. On a date mutually agreed to by the parties, but no later than the
start of the term of this Lease Agreement, Tenant shall be given an opportunity to inspect
the Leased Premises to assure himself that the Leased Premises are satisfactory. Tenant
shall prepaze a punch list of all items that require fiuther work and shall present the punch
list to Landlord. Landlord shall take alI reasonable steps to correct or complete all items
on the punch list within a reasonable period of time. Unless an item on the punch list
shall materially affect the Tenant's intended use of the Leased Premises, the scheduled
start of the lease term shall not be postponed.
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Aspen Recreation Center Concession Facility
Page 5
(b) The Landlord shall furnish Tenant with certain fixtures and those items of
moveable equipment (equipment that is not attached or otherwise built in to the premises)
described in the inventory appended hereto as Exhibit B. Tenant shall firrnish other
fixtures and articles deemed necessary by Tenant for its use of the premises but not
enumerated in Exhibit B, at Tenant's expense. Such fixtures, equipment, and articles
shall be sold to Landlord at the end of the lease period, and extensions thereto, at
Landlord's option, for a price not to exceed the original purchase price less normal
depreciation. (Tenant shall provide to Landlord a bill of sale and schedule of useful life
for any .fixtures or equipment that Landlord requests at the commencement of this Lease.)
All items of equipment and fixtures set forth in Exhibit B shall be maintained in good
working order by Tenant, at Tenant's own cost and expense, and shall be returned to the
Landlord ugon the temvnation of this Lease in the same condition as when accepted by
Tenant, ordinary wear and teaz excepted. If the equipment or fixture is determined to be
fully depreciated or incapable of repair, Tenant shall neither be required to purchase a
new piece of equipment or facture nor shall the Landlord be obligated to purchase new
equipment or substitute working equipment for equipment that can't be repaired. Special
or time sensitive maintenance other than routine maintenance as required by warranties
covering individual pieces of equipment and fixtures shall be the responsibility of the
Landlord; provided, however, that the equipment or fixture is supplied by Landlord as
indicated on Exhibit B;-and provided fiuther, that Tenant operates the equipment and
fixtures in accordance with any operational manuals supplied by the equipment or fixture
manufacturer.
5. Occupancy of the Leased Premises. Tenant shall be entitled to occupy the Leased
Premises throughout the term of the lease; provided, however, that Tenant uses the premises as
set forth in Paragraph 6 below, and all other terms and conditions of this Lease Agreement. The
parties agree to meet no less than once every two weeks to discuss Tenant's performance and any
other issues relating to the terms and conditions of this Lease Agreement.
6. Permitted Uses and Required Performance Standazds. The parties hereto
recognize and acknowledge that the construction of the Aspen Recreation Center, including the
Leased Premises, by Landlord was done, in part, to create a concession facility that caters to the
customers and users of the Aspen Recreation Center; Iselin Park and Rotary Pazk facilities.
Tenant recognizes that a major and important consideration inducing Landlord to rent the Leased
Premises to Tenant is the operation of a high quality concession business offering food services
to the customers and users of the recreational facilities at the Aspen Recreation Center, Iselin
Pazk, and Rotary Pazk. Accordingly, Tenant agrees to the following m;r,;mum standazds of
operation and uses of the Leased Premises:
Tenant shall operate the leased premises in accordance with the following schedule of hours of
operation:
December 1S` through March 31s'
Aspen Recreation Center Concession Facility
Page 6
loam to 7pm daily (Monday thru Friday)
lam to 7pm weekends (Saturday & Sunday)
April 15` through May 31 ~`
3pm to •7pm daily (Monday thru Friday)
12pm to 7pm weekends (Saturday & Sunday)
June 15t through August 315`
loam to 7pm daily (Monday thru Friday)
loam to 7pm weekends (Saturday & Sunday)
September 151 through November 30a'
3pm to 7pm daily (Monday thru Friday)
12pm to 7pm weekends (Saturday & Sunday)
In addition to the above stated minimum hours of operation, Tenant shall operate the
concession during all special events; provided, however, that Landlord notifies Tenant of
such special events at least 72 hours in advance. Special events shall include, but not
necessarily be limited to, ice skating shows, exhibition hockey games, Hockey
Tournaments, or swim meets.
Vending machines required to be provided and operated by Tenant within the Aspen
recreation Center shall be operational at all times during the yeaz. Vending machines
required to be provided and operated by Tenant in any exterior locations shall be required
to operate from May through October.
The parties hereto agree to review and negotiate in good faith the above stated hours of
operation at the end of the first Lease yeaz. In the event of an impasse in said negotiations,
Tenant agrees to abide by Landlord's decision in this regard.
Tenant may provide outdoor food service from a cart to customers at Iselin Pazk and
Rotary Park. The Landlord shall approve the design and operation of the food cart(s)
before Tenant uses them. Landlord shall not allow any other vendors to vend upon Iselin
Pazk or Rotary Pazk during any times that Tenant is vending from Tenant's cart(s)
provided that the Tenant is operating the cart during the minimum established and agreed
upon hours of operation. Landlord shall provide any electrical outlets required by Tenant
to vend upon the aforementioned pazks.
Special Events -Tenant shall have the exclusive right to all food service in the Aspen
Recreation Center (except the area leased by the Youth Center), and surrounding pazks
(Iselin and Rotary). Any groups or outings desiring food service shall negotiate with
Tenant for such service. In such case that a special event requests their own food
supplier, approval must be in writing by Lessee and a buyout chazge will be assessed to
the group in the amount of $5.00 per person or $500.00 minimum. Tenant shall be
encouraged by Landlord to work with lazge groups in pricing for such events. Landlord
shall encourage such groups to use the Tenants' services for such events. Tenant shall
not schedule or serve any special event that is not authorized in advance and in writing by
Aspen Recreation Center Concession Facility
Page 7
Landlord. User groups desiring to have "bake sales" or other similaz fundraising
activities, or desiring to bring food for any purpose within the Aspen Recreation Center
shall be required to obtain the prior written permission of Tenant. Tenant shall not
unreasonably withhold its permission for such events.
7. Prohibited Uses. Tenant will not use; occupy, or permit the Leased Premises
or any part thereof to be used or occupied for any unlawful or illegal business, use, or purposes
deemed by Landlord to be disreputable, or hazardous, nor in such manner as to constitute a
nuisance of any kind, nor for any purpose or in any way in violation of any present or future laws,
rules, requirements, orders, directions, ordinances or regulations of the United States of America,
State of Colorado, County Pitkin, City of Aspen, or other municipal, governmental, or lawful
authority whatsoever. Tenant shall not do or permit anything to be done in or about the Leased
Premises or bring or keep anything. therein which will in any way increase the rate of fire
insurance upon the Building wherein the Premises aze situated. Tenant shall, at its sole cost and
expense, comply with any and all requirements pertaining to the Leased Premises of any
insurance company necessary for the maintenance of reasonable fire and public liability
insurance covering the Leased Premises.- Tenant shall promptly comply with all laws, ordinances,
orders, and regulations affecting the Leased Premises and the cleanliness; safety, and use of the
same, including installation of additional facilities as required for the conduct and continuance of
Tenant's business on the Leased Premises. No auction for fire or bankruptcy sales may be
conducted on the Leased Premises without Landlord's consent.
8. Service to Patrons/No Discrimination. The service provided to patrons by Tenant
shall be rendered courteously and- efficiently and within. the limits for which the facility is
designed. Landlord reserves the right to prohibit the sale of any item that it deems objectionable,
and shall have the right to order the improvement of the quality of either the merchandise or the
services rendered. Landlord's right to .prohibit the sale of any item shall not be unreasonably
withheld. Tenant shall not discriminate against any employee or applicant for employment
because of race, religion, color, creed, ancestry, sex, age, sexual orientation or national origin.
Tenant and TenanfS employees shall not discriminate against. any person because of race,
religion, color, creed, .ancestry, sex, age,. sexual orientation or national origin by refusing to
fiunish such person any service or privilege offered to or enjoyed by the general public. Neither
Tenant nor Tenant=s employees shall publicize the services provided hereunder in any manner
that would directly or inferentially reflect 'on the acceptability of the patrons of any person
because of race, religion, color, creed, ancestry, sex, age, sexual orientation or national origin.
9. Emplovee Uniforms. All employees of Tenant shall wear, at all times, uniforms
of a consistent appeazance. Said uniforms shall be subject to the approval of Landlord.
10. Entertainment. Live entertainment and the use or playing of televisions, stereo
systems, games, and the type and volume of music, shall be approved by Landlord before
implementation.
Aspen Recreation Center Concession Facility
Page 8
11. Parkine. Free parking will be designated by the City of Aspen and provided for
the Tenant's patrons and employees. Patron and employee parking shall be consistent with the
parking provided for the City's employees and patrons.
12. Accountine. In addition to the accounting to be provided to Landlord pursuant to
pazagraph 3, above, Tenant shall provide Landlord: a) with copies of the quarterly sales and
withholding tax statements it provides to the appropriate authorities, with a notafion thereon by
Tenant's accountants reflecting the portion of the income reflected on those returns that is derived
from the gross sales; and, b) statements prepazed by Tenant's accountants reflecting the gross
sales and sales taxes paid by Tenant for each Occupancy Period.
13. Late Chazees. The Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent or other sums due hereunder will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which shall be extremely difficult to ascertain.
Such costs include, but are not limited to, processing and accounting charges and-the late
chazges. Accordingly, if any bona fide installment of rent or any other sum due from Tenant
hereunder shall not be received by Landlord or Landlord's designee on or before the twentieth
(20th) day of each calendaz month that a rent payment is due, then Tenant shall pay to Landlord a
late chazge of ten percent (10%) on such overdue amount. The parties hereby agree that such a
late charge will represent a fair and reasonable settlement of the cost that Landlord would incur
by reason of the late payment by Tenant. Acceptance of such late charges by Landlord shall in
no event constitute a waiver of Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted hereunder unless the entire
amount due, plus late charge, is accepted by Landlord. In addition, any sum for which the Tenant
shall be obligated to the Landlord, which is not received on the due date thereof shall bear
interest at the rate often percent (10%) per annum from and after the due date until paid.
14. Personal and Real Property Taxes. Tenant shall pay, as additional rent hereunder,
all personal property taxes assessed against the personal property used by Tenant and located on
the Leased Premises. Likewise, Tenant shall be responsible for any and all sales, use,
withholding and other taxes.assessed against the Leased Premises for Tenant`s business operation
therein. Landlord shall pay any real estate taxes assessed upon the Leased Premises, except for
leasehold property interest taxes referenced above.
15. Fire and Casualty Insurance. The Tenant, at its own cost and expense, shall
provide and keep in full force £or the benefit of the Tenant and the City and the Landlord (as
named or additional insureds) during the term hereof or any extension or renewal period,
insurance to insure the Leased Premises against fire, normal extended coverage perils, vandalism,
malicious mischief, and liability. Such insurance shall provide protection to the extent of at least
one hundred percent (100%) of the insurable replacement cost of the building containing the
Leased Premises. In connection herewith, it is acknowledged that Landlord, for ease of
administrafion, is carrying such insurance upon the entire Aspen Recreation Center.
Accordingly, Tenant shall pay to Landlord, Tenant's prorated shaze of the insurance premium
Landlord pays to insure the Leased Premises. Tenant's prorated shaze shall be equal to 0.0037
Aspen Recreation Center Concession Facility
Page 9
multiplied by the annual premium paid by Landlord for such insurance. This premium shall be
paid fo Landlord within ten (10) days of Tenant's receipt of notice of the amount due from
Landlord, Throughout the term of this Lease, the Tenant shall carry and maintain in effect
casualty insurance covering its trade fixtures, equipment, furnishings, leasehold improvements
and plate glass, which insurance shall protect against fire, normal extended coverage perils,
vandalism, malicious mischief, and sprinkler malfunction. Such insurance shall provide
coverage to the extent of at least one hundred percent (100%) of the insurable replacement cost
of the insured property. Both the Landlord and the Tenant waive any right of subrogation that
their respective insurers may acquire against either of them. Both of these waivers shall
automatically temunate at such time as either party's insurer requires that an additional premium
be paid as a consequence of this waiver provision,
16. Liability Insurance. The Tenant, at its own cost and expense, shall provide and
keep in full force for the benefit of the Tenant and the Landlord (as named or additional insureds}
during the term hereof or any extension or renewal period, general public liability insurance for
claims of liability arising out of, occasioned by or resulting from an accident or otherwise in or
about the Leased Premises, for Five Hundred Thousand Dollars ($500,000.00) each occurrence
with a One Million Dollar ($1,000,000.00) general aggregate combined single limit covering
bodily injury, property damage, and personal injury. 1n addition, if Tenant serves, manufactures,
or distributes alcoholic beverages on the Leased Premises, Tenant shall carry liability ir,cnrar,ce
for such activity with limits in the same amounts as stated above. The policy or policies of
insurance (or binders of insurance therefore) shall be issued by a reputable company or
companies authorized to do business in this State and shall name Landlord as an additional
insured. Tenant shall provide evidence of such insurance coverage to Landlord prior to the
commencement of the term hereof. The Tenant also agrees to and shall save, hold and keep
harmless and indemnify the Landlord from and against any and all payments, expenses, costs,
attorneys' fees and/or damage to property or injuries to persons occasioned wholly or in part by or
resulting from any acts or omissions by the Tenant or any subtenants, assignees or successors. If
for any reason as a result of Tenant's activities, use, or business, it shall be impossible to' obtain
fire and other hazard insurance on the buildings and improvements on the Leased Premises, in an
amount and with insurance companies acceptable to the Landlord, the Landlord may terminate
this Lease and the term hereof, upon giving to Tenant fifteen (15) days notice in writing of the
Landlord's intention to do so and upon the expiration of the time provided in said notice, this
Lease and the term hereof shall terminate. )f by reason of the use of the Leased Premises.by the
Tenant or by character or manner in which the Tenant's business is carried on, Landlord's
insurance rates for fire and other hazazds shaIl lie increased, the Tenant shall pay, as additional
rent, the amounts by which the premiums for such insurance are increased. The Tenant waives
all rights of recovery against the Landlord or Landlord's agents, employees or other
representatives, for any loss, damages or injury of any nature whatsoever to properly or persons
for which the Tenant is insured. Each party shall give the other party prompt notice of any claim
coming to the knowledge of any patty that in any way directly or indirectly affects either party,
and both parties shall have the right to participate in the defense of such claim to the extent of its
interest.
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17. Notice of Cancellation of Insurance Covera>7e. The above insurance policies shall
contain clauses substantially similaz to the following:
(a) Notwithstanding any other provision in this policy, the insurance
afforded hereunder to the Landlord shall be primary as to any other insurance or
reinsurance covering the Landlord and such other insurance or reinsurance shall
not be required to contribute to any liability until the appropriate limit of liability
afforded hereunder is exhausted.
(b) This policy may not be canceled or changed until forty-five (45) days
after receipt by Landlord of a written notice of such cancellation or change in
coverage, as endorsed by receipt of a certified letter, unless such cancellation is a
result of nonpayment of premium due, in which case, this policy may not be
canceled until ten (10) days after receipt by Landlord of a written notice of such
cancellation, as endorsed by receipt of a certified letter.
18. ~lltbesWandlvlaintenancer~ During the first Lease Year anhall~pay $100';
---mon~Lys and~foi its;prorated shaze ofLLall chazges for utilities that are not separately metered or
confracted for sepazately by Tenant Those utilities covered by this pro-rated shaze include gas,
electricity, water, sewer, trash removal, and the cost of cleaning the common restrooms on the
main floor. Utilities not covered by this pro-rated share amount shall include telephone, cable
televisions and any ather utility or maintenance services used.by the Tenant in or about the
Leased. Premises during the term of this Lease: After the fast Lease Yeaz, the prorated shaze
amount shall be increased (or decreased) based upon any percentage change in the actual cost of
providing the pro-rated shaze of the utilities.
19. .Alterations. Any improvements to be made by Tenant are listed on Exhibit C.
appended hereto. No alterations, additions, or improvements shall be made, and no fixtures shall
be installed in or attached to the Leased Premises that aze not listed on Exhibit C, without the
written consent of the Landlord. Unless otherwise provided herein, all such alterations, additions
or improvements (including those listed on Exhibit C) when made, installed in or attached to the
said Leased Premises, shall belong to and become the property of the Landlord and shall be
surrendered with the Leased Premises as part thereof upon the .expiration or sooner temunation
of this Lease, without hindrance, molestation, or injury. Notwithstanding that they may have
become an integral part of the Leased Premises, Landlord may require Tenant to remove all or
any.part of such alterations, additions, improvements or fixtures at the expiration or eazlier
termination of this Lease, restoring the Leased Premises to the same condition existing at the
beginning of the original term, ordinary weaz and tear excepted. If Landlord does so require,
Tenant shall repair all damages resulting from such removal and should Tenant fail to repair
damages resulting from such removal, Landlord may remove the same or make such repairs for
Tenant's account, and Tenant shall pay to Landlord, on demand, an amount equal to Landlord's
costs incurred in such removal br repair. All work with respect to any permitted alterations,
additions, or improvements shall be done at Tenant's sole expense in a -good and workmanlike
manner, strictly in accordance with the plans and specificafions approved by Landlord. In doing
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said work, other Tenants of Landlord (if any) shall not be adversely affected nor unreasonably
inconvenienced. Tenant shall, at its own expense, obtain all necessary building or other permits
or approvals required by appropriate governmental authorities prior to beginning such work. If
any mechanics' or other liens shall be created or filed against the Leased Premises by reason of
labor performed or materials furnished for the Tenant in the alteration, addition or repair to any
building or improvement, the Tenant shall within ten (10) days thereafter, at the Tenant's own
cost and expense, cause such lien or liens to be satisfied and dischazged of record together with
any Notices of Intention that may have been filed. Failure to do so shall entitle Landlord to resort
to such remedies as are provided herein in the case of any default of this Lease, in addition to
such as aze permitted by law. Any goods, inventory or other personal property of Tenant not
affixed to the Leased Premises and not removed by Tenant upon the termination of this Lease, or
upon any quitting, vacating or abandonment of the Leased Premises by the Tenant, or upon the
Tenant's eviction, shall be considered abandoned and Landlord shall have the right, without any
notice to the Tenant, to sell or otherwise dispose of the same, at the expense of the Tenant, and
shall not be accountable to the Tenant for any part of the proceeds of such sale, if any.
20. Repairs. The Tenant has examined the Leased Premises and has entered into this
Lease without any representation on the part of the Landlord as to the condition thereof, other
than as stated in this Lease Agreement. Tenant shall take good caze of the Leased Premises and
shall, at the Tenant's own cost and expense, make all repairs, including painting and decorating,
and shall maintain the. Leased Premises in good condition and state of repair, and at the end or
other expiration of -the term hereof, shall deliver up the Leased Premises in good order and
condition, weaz and teaz from reasonable use thereof, and damage by the elements not resulting
from the neglect or fault of the Tenant, excepted. The Tenant shall neither encumber nor
obstruct the sidewalks, driveways, yazds, entrances, hallways and stairs, but shall keep and
maintain the same in a clean condition, free from debris, trash, refuse. Tn case of destruction of,
or any damage to the glass in the Leased Premises, or the destruction of, or damage of any kind
whatsoever to the Leased Premises, caused by the cazelessness, negligence or improper conduct
on the part of the Tenant or the Tenant's agents, employees, guests, licenses, invitees, subtenants,
assignees. or successors, the Tenant shall repair the said damage or replace or restore any
destroyed parts of the Leased Premises, as speedily as possible, at the Tenant's own cost and
expense.
21. Damage to Premises. If the Leased Premises shall be so damaged by fire. or other
catastrophe (which is not caused by the fault or negligence of the Tenant or imputable to the
Tenant) as to render said Leased Premises untenantable, the Tenant thereupon shall surrender the
Leased Premises to the Landlord. The Tenant shall pay rent, duly apportioned, up to the time of
such termination of this Lease. Notwithstanding the foregoing, in lieu of any termination of the
Lease, Landlord may elect, at its sole option, within thirty (30) days after the event of such
damage, to continue the Lease without regard of such damage, whereupon Landlord shall at its
expense make the Leased Premises fit for occupancy and the rent shall be abated only for the
period during which the Tenant shall be deprived of the use of said Leased Premises by reason of
such damage and the repair thereof. If said Leased Premises, without the fault of the Tenant,
shall be slightly damaged by fire or other catastrophe but not so as to render the same
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untenantable for any substantial period of time, the Landlord, after receiving notice in writing of
the occurrence of the injury, shall cause the same to be repaired with reasonable promptness; and
in such event, rent shall be proportionately abated, according to the loss of use, until the Leased
Premises aze substantially restored. .
22. Sublease/Assignment. Tenant shall not assign, sublease, mortgage, pledge or
otherwise hypothecate or transfer all or any part of Tenant's leasehold estate hereunder, or permit
the Leased Premises or any portion thereof to be occupied by anyone without Landlord's prior
written consent in each instance, which consent shall not unreasonably be withheld. In the event
Tenant is a corporation, these provisions shall apply to any transfer, sale or other disposition,
whether voluntary or involuntary, of any stock in Tenant or to any merger, consolidatiori or
dissolution or any other transaction, the effect of which would be in any way to avoid or
circumvent such prohibitions. Any assignment or subletting contrary to the provisions of this
Paragraph shall be void and shall, at the option of the Landlord, constitute a default under the
terms of this Lease.
23. .Maintenance and Repairs. Tenant shall during the term of this Lease keep in
condition and repair equal to that which existed at the commencement of this lease the Leased
Premises and every part thereof, including without limiting the generality of the foregoing; all
plumbing fixtures, within the Leased Premises, refrigeration, electrical fixtures and lighting
fixtures, additional fixtures, interior walls, wall coverings and paint, ceilings, floors and floor
coverings, windows, doors, plate glass, awnings, and entrances. Landlord shall have
responsibility for the repair and maintenance of the building structure, roof, foundation and
structural integrity of any additional stories above the Leased Premises, and shall, at its expense
provide major repairs and required replacement to mechanical systems situated within the Leased
Premises that were originally provided by the Landlord. Major repairs and replacements are
agreed to be those which cost more than $500.00 for each single item, and aze of what the
Landlord provided initially when construction was completed on the new facility, (other
additions that need repair which were completed by lease holder will be undertaken by the lease
holder at the lease holders sole cost and expense) and are required to provide the level of service
and serviceability thereof and there from currently existing. Absent such agreement, Landlord
shall have no obligation to execute such repair or replacement, but in the event Landlord
determines to effectuate such repair or replacement, Landlord shall have the sole discretion to
determine the type, extent and quality of repair or replacement that shall be undertaken.
24. Signs. The Tenant shall not place nor allow to be placed any signs of any kind
whatsoever, upon, in or about the said Leased Premises or any part thereof, except of a design
and structure and in or at such places as may be indicated and consented to by the Landlord in
writing. In case the Landlord or the Landlord's agents; employees or representatives shall deem it
necessary to remove any such signs in order to paint or make any repairs, alterations or
improvements in or upon the Leased Premises, they shall be replaced at the Landlord's expense
when the said repairs, alterations or improvements shall have been completed. Any signs
permittedby the Landlord shall at all times conform with all municipal ordinances or other laws
Aspen Recreation Center Concession Facility
Page 13
and regulations applicable thereto. Exhibit F appended hereto is a list of signs and locations
showing the general location of all signage permitted to be located by Tenant.
25. Compliance with Law. Tenant shall obtain and pay for all permits or licenses that
may be required for the operation of the Leased Premises in accordance herewith. A copy of
such pemmts or licenses shall be submitted to Landlord for verification of this requirement prior
to occupancy. The Tenant shall promptly comply with all laws, ordinances, rules, regulations,
requirements, and directives of the federal, state, and municipal governments or public
authorities and of all their departments, bureaus and subdivisions, applicable to and affecting the
said Leased Premises, their use and occupancy, and shall promptly comply with all orders,
regulations, requirements and directives of the Board of Fire Underwriters or similaz authority
and of any insurance companies which have issued or are about to issue policies of insurance
covering the said Leased Premises and its contents, for the prevention of fire or other casualty,
damage or injury, all at Tenant's own cost and expense. Tenant shall obtain and maintain during
the life of this Lease, worker's compensation insurance and employer's liability insurance for
Tenant's employees in strict- compliance with state laws. Certificates evidencing such insurance
or approved self-insurance shall be submitted to Landlord prior to occupancy:
Tenant shall not use the Leased Premises for any purposes deemed unlawful, disreputable, or
extra hazardous.
26. Ouiet Enioyment. So long as the Tenant is not in default hereunder during the
term hereof or any renewal or extension hereof, the Landlord covenants that the Tenant shall
peacefully and quietly occupy and enjoy the Leased Premises subject to the terms hereof. The
Landlord warrants that it has full power and authority to execute this Lease, be bound by, and
perform all its obligations hereunder. Notwithstanding anything to the contrary contained herein,
Tenant acknowledges that Landlord's right to occupy and lease the Leased Premises to Tenant is
based upon Landlord's rights under the Master Lease. )n the event Landlord loses the right to
occupy and lease the Leased Premises because of a default by Landlord or the Owner of the
building in accordance with the provisions of the Master Lease, Landlord shall have no
obligation hereunder to Tenant and this Lease shall be of no further force or effect, subject to the
City of Aspen's rights pursuant to the Master Lease.
27. Condemnation. If the land and the Leased Premises leased herein, or of which the
Leased Premises aze a part, or any portion hereof, shall be taken under eminent domain or
condemnation proceedings, or if suit or other action shall be instituted for the taking or
condenmation thereof, or if in lieu of any formal condemnation proceedings or actions, if any, the
Landlord shall grant an option to purchase and/or shall sell and convey the said Leased Premises,
or any portion thereof, to the governmental or other public authority, agency, body or public
utility seeking to take said land and Leased Premises or any portion thereof, then this Lease, at
the option of Landlord, shall ternunate and the term hereof shall end as of such date as the
Landlord shall fix by notice in writing; and the Tenant shall have no claim or right to claim or be
entitled to any portion of any amount which maybe awarded as damages or paid as the result of
such condemnation proceedings or paid as the purchase price for such option, sale or conveyance
in lieu of formal condemnation proceedings; and all rights of the Tenant to damages, if any, aze
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Page 14
hereby assigned to the Landlord. The Tenant agrees to execute and deliver any instruments, at
the expense of the Landlord, as may be deemed necessary or required to expedite any
condemnation proceedings or to effectuate a proper transfer of title to such governmental or other
public authority, agency, body, or public utility seeking to take or acquire the said lands and
Leased Premises or any portion thereof. The Tenant covenants and agrees to vacate said Leased
Premises, remove all the Tenant's personal property there from and deliver up peaceable
possession thereof to the Landlord or to such other party designated by the Landlord in the
aforementioned notice. Failure by the Tenant to comply with any provisions in this clause shall
subject the Tenant to such costs, expenses, damages and losses as the.Landlord may incur by
reason of the Tenant's breach hereof.
28. Landlord's Lien. Tenant hereby grants to Landlord a security interest in any and
all of Tenant's furniture, fixtures, equipment and inventory whenever acquired, their proceeds
and the proceeds of any and all insurance policies carried thereon as and for additional security
for the faithful performance by Tenant of all of its obligations hereunder. Tenant agrees to
execute and deliver to Landlord, upon request, such additional documents as Landlord may
require to establish and perfect such security interest including, without limitation, a financing
statement in form satisfactory to Landlord, which is to be executed and delivered by Tenant to
Landlord. The exercise by Landlord of any rights in and to such furniture, fixtures, equipment
and inventory upon default hereunder shall be governed by Article 9 of the Colorado Uniform
Commercial Code, as in effect at the time of such default, but such exercise shall not preclude
Landlord from exercising any or all other rights and remedies hereunder or as provided by law.
29. Inspection and Repair. The Tenant agrees that the Landlord and the Landlord's
agents, employees or other representatives, shall have the right to enter into and upon the Leased.
Premises or any part thereof, at all reasonable hours and upon reasonable notice, for the purpose
of exar»;n;ng the same or making such repairs or alterations therein as may be necessary for the
safety and preservation thereof. Nothing in this section is intended to restrict access to the
premises by an authorized City of Aspen inspector conducted pursuant to law, including, but not
limited to Environmental Health employees, conducting routine health inspections. This clause
shall not be deemed to be a covenant by the Landlord nor be construed to create an obligation on
the part of the Landlord to make such inspection or repairs. Tenant expressly waives and
releases any claim, demand, or cause of action it might have by reason of any inconvenience,
annoyance to Tenant, its guests, licensees or invitees arising from any maintenance, alteration or
repair to any portion of the Leased Premises, the building in which it is located or the property
upon which it is situate. Tenant grants to Landlord the right to temporarily discontinue utilities
or any of them at any such time or times as may be necessary by reason of any such maintenance
work, alteration or repair.
30. Landlord Remodel of Premises. In the event Landlord desires to remodel any
portion of the Leased Premises during the term of this lease agreement, it may do so, provided it
is solely at Landlord's expense and, provided further, that any remodel work commenced by
Landlord shall not interfere with or disrupt Tenant's business within the Leased Premises.
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31. Default. If there should occur any default on the part of the Tenant in the
performance of any conditions or covenants herein contained or if, during the term hereof, the
Leased Premises or any part thereof shall be or become abandoned or deserted, vacated or vacant,
or should the Tenant be evicted by summary proceedings or otherwise, the Landlord, in addition
to any other remedies herein contained or as may be permitted by law, may either by force or
otherwise, without being liable for prosecution therefore or. for damages, re-enter the said Leased
Premises and again possess the same with or without terminating this Lease; and as agent for. the
Tenant or otherwise, re-let the Leased Premises and receive the rents therefore and apply the
same, first to the payment of such expenses and costs, as the Landlord may have been put in re-
entering and repossessing the same and in malting such repairs and alterations, as may be
necessary; and second to the payment of the rents due hereunder. Whether or not the Landlord
shall terminate this Lease, the Tenant shall remain liable for such rents as maybe in arreazs and
also the rents as may accrue subsequent to the re-entry by the Landlord, to the extent of the
difference between the rents reserved hereunder and the rents, if any, received by the Landlord
during the remainder of the unexpired term hereof, after deducting the aforementioned expenses,
fees, and costs; the same to be paid as such deficiencies arise and aze ascertained each month. In
addition, upon any such default, or if Tenant be adjudicated a banl¢~upt, insolvent or placed in
receivership, or should proceedings be instituted by or against the Tenant for banlmrptcy,
insolvency, receivership, agreement of composition or assignment for the benefit of creditors, or
if this Lease or the estate of the Tenant hereunder shall be transferred by virtue of any court
proceedings, writ of execution or levy sale, the Landlord may, if the Landlord so elects, at any
time thereafter, terminate this Lease, upon written notice to Tenant or to any trustee, receiver, or
other person in chazge of or acting as custodian of the assets or property of the Tenant. In the
event of default, except in the payment of rent or additional rent hereunder, Landlord, prior to the
exercise of any of its rights or remedies hereunder, shall give Tenant notice of ,such default
together with a ten (10) day right to cure should such default be in the payment of any other sums
due Landlord hereunder or a twenty (20) day right to cure should such default be in any of the
other conditions or covenants of this Lease to be performed by Tenant, unless the- same by its or
their nature require immediate or earlier attention. Upon the giving of such notice, this Lease and
the term hereof shall, unless the default shall be cured during the applicable period, end`on the
date fined in such notice as if the said date were originally fixed in this Lease-for the expiration
hereof; and the Landlord shall have the right to remove all persons, goods, fixtures and chattels
therefrom, by force or otherwise, without liability for damages. No right of redemption shall be
exercised under any present or future law of the State of Colorado in case the Tenant shall be
dispossessed for any cause or if the Landlord shall, in any other manner, obtain possession of the
Leased Premises in consequence of the violation of any of the covenants and agreements of the
Tenant. The Landlord shall have a lien pazamount to till others on every right and interest of the
Tenant in and to this Lease, and on any fiunishings, equipment, fixtures, or other personal
property of any kind belonging to the Tenant, or the equity of the 'T'enant therein, on the leased
property. Such lien is granted for the purpose of securing the payment of rents, taxes,
assessments, insurance chazges, liens, penalties and damages herein covenanted to be paid by the
Tenant and for the purpose of securing the performance of all of the Tenant's obligations under
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Page 16
this Lease. Such lien shall be in addition to all rights of the Landlord given under statutes of this
State, which are now or shall hereinafter be in effect.
32. Attorneys' Fees. In the event of any litigation or other action or proceeding
between the parties hereto arising out of the performance or non-performance of this Lease, or
enforcement of any rights or remedies hereunder, including any indemnities herein contained, the
prevailing party shall be entitled in such litigation, action or proceeding to also recover as part of
any judgment, awazd or other relief, its reasonable attorneys' fees and costs incurred.
33. Delays. Whenever a period of time is provided in this. Lease for either Landlord
or Tenant to do or perform any act or thing, neither Landlord nor Tenant shall be liable or
responsible for performing any obligation hereunder as a result of any unavoidable delay due to
strikes, lockouts, casualties, acts of God, or other governmental regulations or control or other
causes beyond such party's reasonable control, and .the time for performance specified herein
shall be extended for a period of time corresponding to such delay.
34. Mortgage Priority. This Lease shall not be a lien against the Leased Premises with
respect to any mortgages or trust deeds now or hereafter placed upon the Leased Premises or the
building. The recording of such mortgage or mortgages shall have preference and precedence
and be superior and prior in lien to this Lease, irrespective of the date of recording and the
Tenant agrees to execute any instruments, without costs, which may be deemed necessary or
desirable, to further effect the subordination of this Lease to any such mortgage or mortgages.
Tenant shall, upon request, execute any estoppel certificates or attornment agreements that may
be required by the holder of any mortgage or trust deed now.or hereafter placed upon the Leased
Premises or the building or by the Owner of the building in which the Leased Premises aze
located. A refusal by the Tenant to execute any such instruments shall entitle the Landlord to at
once temunate this Lease. Tenant agrees not to record or file this Lease in the real estate records
affecting'the building in which the Leased Premises is located. Any such recording iri violation
hereof shall be considered a slander of Landlord's title and a breach of this entire Lease. This
covenant shall survive the expiration or earlier termination of this Lease.
35. Holdine Over. This Lease shall expire of its own accord without notice at the end
of the term or eazlier, as herein specified. If, after the expiration of this Lease, Tenant remains in
possession, of the Leased Premises with the Landlord's consent, such holding over shall be a
tenancy-at-will at a rental equal to 125% of the last monthly rental provided in this Lease, and
otherwise subject to all the obligations and conditions of this Lease. .
36. Cumulative Remedies. The various rights, remedies, options and elections of the
Landlord expressed herein are cumulative and the failure of the Landlord to enforce strict
performance by the Tenant of the conditions and covenants of this Lease or to exercise any
election or option or to resort or have recourse to any remedy herein conferred or the acceptance
by the Landlord of any installment of rent after any breach by the Tenant, in any one or more
instances, shall not be construed or deemed to be a waiver or a relinquishment for the future by
Aspen Recreation Center Concession Facility
Page 17
the Landlord of any such conditions and covenants, options, elections or remedies, but the same
shall continue in full force-and effect.
37. Cleanliness; Waste and Nuisance. Tenant shall keep the Leased Premises at all
times in a neat, clean and sanitary condition, shall neither commit nor permit any waste or
nuisance thereon. Tenant shall store all trash in the containers provided for that purpose:
38. Brokers. Each party represents to the other that it has had no dealings with any
real estate broker or agent in connection with the negotiation of this Lease.
39. Waiver. No waiver by Landlord or Tenant of any provision of this Lease shall be
effective unless in writing nor shall such waiver be deemed a waiver of any other provision
hereof, nor of any subsequent breach by Tenant of the same or of any other provision. .
40. Surrender of Premises. At-the end of the lease period of possession of the Leased
Premises by Tenant, as well as at the termination of this Lease, Tenant shall surrender the Leased
Premises to Landlord in good condition and repair, excepting for reasonable weaz and teaz and
acts of God. Tenant shall have the right at the end of the term hereof to, and upon demand by
Landlord Tenant shall, remove any equipment, furniture, trade fixtures not affixed to the fealty,
and other personal property placed in'the Leased Premises by Tenant and Tenant shall promptly
repair any damage to the Leased Premises caused by such removal.
41. Governin¢ Law. This Lease. shall be construed and enforced in accordance with
the laws of the State of Colorado. In the event of any litigation arising out of this Lease,
jurisdiction and venue shall rest with any court of competent jurisdiction in Pitkin County.
42. Time of Essence. Time is of the essence with respect to the performance of every
provision of this Lease in which the time of performance is a factor..
43. Severability. The terms, conditions, covenants, and provisions of this Lease shall
be deemed to be severable. If any clause or provision herein contained shall be adjudged to be
invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable
law, it shall not affect the validity of any other clause or provision herein, but such other clauses
or provisions shall remain in full force and effect.
44. Notices. All notices required under the terms of this Lease shall be given in
person or by mailing such notices by certified or registered mail, return receipt requested, to the
address of the party as shown at the beginning of this Lease, or to such other address as maybe
designated in writing, which notice of change of address shall be given in the same manner. If
not sooner received, any notice given by mail shall conclusively be deemed received three (3)
days after the date of certification or registration.
45. Entire Lease. This Lease contains the entire contract between the parties and there
are no other agreements, understandings, representations, or warranties except as expressly set
Aspen Recreation Center Concession Facility
Page 18
forth herein. No additions, changes or modifications, renewals or extensions hereof shall be
binding unless reduced to writing and signed by the Landlord and Tenant. To the extent possible,
this Lease shall be construed vis-a-vis the Landlord and Tenant without reference to the Master
Lease. However, in the event the rights of Landlord and Tenant hereunder are directly affected
by and in conflict with provisions of the Master Lease, such that to adhere to the terms of this
Lease would result in a default by Landlord under the Master Lease, the Master Lease provision
shall control.
46. References. In all references herein to any parties, persons, entities or
corporations, the use of any particular gender or the plural or singulaz number is intended to
include the appropriate gender or number as the text of the within Lease may require.
47. Tenant is an Independent Contractor. -This Lease is not a contract of
employment. No relationship of employer and employee, joint venture or partnership, exists
between Landlord and Tenant or between the Landlord and any employee or agent of the
Landlord. Tenant shall at all times be deemed to be an independent contractor. Tenant is not
authorized to bind Landlord to any agreements or obligations. The term Landlord when used in
this Lease shall mean and include the Executive Director of the Landlord and any other agent or
employee of the Landlord designated by the Director with the responsibility of enforcing any of
the terms of this Lease.
48. "Bindin Eg ffect. All the terms, covenants, and conditions herein contained shall be
for and shall inure to the benefit of and shall bind the respective parties hereto, and their heirs,
executors, administrators, personal or legal representatives, successors and assigns respectively.
49. Guazanty. 1n the event Tenant hereunder is a corporafion, this Lease and the
performance of all the payments, obligations, conditions and covenants contained herein shall be
personally guaranteed by the shazeholders of Tenant by execution of a guazanty of lease in a form
provided by Landlord.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and
yeaz above first written.
TENANT:
LANDLORD:
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Page 19
APPROVED AS TO FORM:
Jolm .Worcester, Esq.,
City Attorney
THE CPI'Y OF ASPEN
.APPROVED AS TO CONTENT:
~!5'
Steve arwick
City Manager
List of Exhibits Amended to Lease Aereement
A -Description of Leased Premises (including legal description of ARC properly and sketch of
leased premises)
B - Inventory of Equipment and Fixtures to be Provided by Landlord.
C -List of Improvements and Fixtures to be Made or Provided by Tenant.
D -Calculation of Cost of Living Increases.
E -Menu
F - Signage
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EXHIBIT D
COST OF LIVING INCREASE CALCULATION
a) "Price Index" shall mean the Consumer Price Index - All Urban
Consumers (CPI-U) - U.S. City Average.- All Items,' or a successor or substitute index published
or authorized by the United States Department of Labor, Bureau of Labor Statistics.
b) The following formula shall be used for determining the adjustment, if
any, in the fixed minimum annual rent:
"Price Index" for the first month
Current Index Number = of next Lease Year
Base Index Number "Price Index for first month of
of preceding Lease Yeaz
c) As promptly as practicable after the commencement of the first adjustment
yeaz, and thereafter as promptly as practicable after the first day of each succeeding adjustment
yeaz, Landlord shall compute the increase, if any, in the cost of living for the yeaz immediately
preceding said adjustment yeaz. Such computation shall be made by use of current and base index
numbers provided for each adjustment year as set forth in Paragraph c) above.
d) In computing increases for each adjustment yeaz the current index number
shall be divided by the base index number. From the quotient thereof, there shall be subtracted
the integer 1 and any resulting positive number shall be deemed to be the percentage of increase
of cost of living.
e) The percentage of increase in the cost of living shall be multiplied by the
minimum annual rental including increases for the yeaz preceding the adjustment yeai for which
the increase is being computed.
f) The Landlord shall, within a reasonable time after obtaining the
appropriate data necessary for computing such increases, give the Tenant notice of any increase
so determined, and the Landlord's computation thereof shall be conclusive and binding but shall
not preclude any adjushnent of the index figures upon which the computation was based and
Tenant shall, within sixty (60) days after receiving such notice, notify Landlord of any claimed
error therein; provided, however, nothing herein shall be construed to extend the time when
rents, as determined by Landlord, aze due and payable by Tenant.
g) Minimum annual rent for each adjustment yeaz, together with increases
calculated in accordance with Pazagraphs b) through f) of this Section 11, shall be due and
payable to Landlord in equal monthly installments due on the first day of each calendaz month of
Aspen Recreation Center Concession Facility
Page 21
each adjustment yeaz (retroactive payments then due being payable within thirty (30) days after
giving notice thereof by Landlord to Tenant).
h) If publication of the pertinent Consumer Price Index shall be discontinued,
the parties hereto shall thereafter accept comparable statistics on the cost of living for the average
of all U.S. cities, all items, as the same shall be computed and published by an agency of the
United States or by a responsible financial periodical of recognized authority thesto be selected
by the parties hereto. In the event of (1) use of compazable statisfics in place of the Consumer
Price Index as above mentioned, or (2) publication of the Index figures at other than bi-monthly
intervals, there shall be made in the method of computation above provided revisions as the
circumstances may require to carry out the intent of this Article.
Aspen Recreation Center Concession Facility
Page 22
GUARANTY OF LEASE
FQR VALUE RECEIVED, and in consideration for, and as an inducement to the
aforesaid Landlord to make the foregoing Lease with ZG Holdings LLC, as Tenant, the
undersigned _ unconditionally guarantees the full performance and
observance of all the covenants, conditions, and agreements therein provided to be performed
and observed, by Tenant, and expressly agrees that the validity of this agreement and the
obligations of the guarantors hereunder shall in no wise be temunated, affected or impaired by
reason of the assertion by Landlord against Tenant of any of the rights or remedies reserved to
Landlord pursuant to the provisions of the within Lease or by the relief of Tenant from any of
Tenant's obligations under the Lease by operation of law or otherwise (including, but without
limitation, the rejection of the Lease in connection with proceedings under the banlmrptcy laws
now or hereafter enacted); the undersigned hereby waiving all suretyship defenses.
The undersigned further covenants and agrees that this guazanty shall remain and
continue in full force and effect as to any renewal, modification, or extension of this Lease. The
undersigned further agrees that his liability under this guaranty shall be primary, and that in any
right of acfion which shall accrue to landlord under the Lease, landlord may, at Landlord's option,
proceed against the undersigned and Tenant, jointly or severally, and may proceed against the
undersigned without having commenced any action against or having obtained any judgment
against Tenant.
It is agreed that the failure of Landlord to insist in any one or more instances upon a strict
performance or observance of any of the terms, provisions or covenants of the foregoing Lease or
to exercise any right therein contained shall not be construed or deemed to be a waiver or
relinquishment for the future of such term, provision, covenant or right, but the same shall
continue and remain in full force and effect. Receipt by Landlord of rent with knowledge of the
breach of any provision of the foregoing Lease shall not be deemed a waiver of such breach.
Except as maybe otherwise specifically provided in the Lease subletting, assignment, or
other transfer of the within Lease, or any interest therein, shall not operate to extittguish or
diminish the liability of the undersigned guarantors under this guazanty; and wherever reference
is made to the liability of Tenant named in the within Lease, such reference shall be deemed
likewise to refer to the undersigned guarantors.
It is further agreed that all of the terms and provisions hereof shall inure to the benefit of
the respective heirs, personal representatives, successors and assigns of Landlord, and shall be
binding upon the heirs and assigns of the undersigned.
Aspen Recreation Center Concession Facility
Page 23
IN WTI'NESS WHEREOF, the undersigled guazantor has caused this ~ iaranty to be
executed effective as of the day of , 2007.
/.
JPW-2/16Y1007-G~\jokm\word~ag\arc-concession-9-18-02.doc
Landlord's Fixture, Equipment and Finishes List Sec 4-Exhibit B
Demising walls (except for opening as shown on Ted Guy Assoc drawing
dtd 6-14-02 Sheet 1
'~`4`%~° `~ 200 amp electrical'service panel live as shown on Ted Guy Assoc drawing
,3~~ dtd 6-14-02 Sheet 1 and circuits installed in accordance with the Utilities
Rough In Plan and accompanying notes from the Katz Company
dtd 7,24-02
2" wide corrugated metal roof constructed as shown on Ted Guy Assoc drawings
dtd 6-14-02 Sheets 1 and 2
3 floor sinks as quoted in letter from Colorado Plumbing Service dtd 6-7-02.
Low profile grease interceptor as quoted in letter from Colorado Plumbing
Service dtd 4-24-02
GWB drop ceiling laid out for 14light fixtures and 4 ventIlation grills
JUN-~-GNbc 4Td ~ Do ! HtUJUKt K IiUY FitibUC
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EXHIBIT "C"
TENANT IMPROVEMENTS
NO IMPROVEMENTS ARE BEING IDENTIFIED AT THIS TIME. ANY
FUTURE IMPROVEMENTS MUST BE PASSED BY THE CITY OF
ASPEN AND APPROVED PRIOR TO WORK COMMENCING.
FUTURE IMPROVEMENTS WILL BE ADDRESSED AS AN
ADDENDUM TO THIS CONTRACT.
Ll~°
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Bunz Menu
Naked Juices and Smoothies ($3)
Seattle Roast Coffee ($2)
Novus Tea ($2)
Made to order protein Shake with Powder, Soy or Rice milk, fresh fruit (banana or
strawberry) ($4)
Veggie Snacks :Carrot Sticks, Sugar Snap Peas, Ranch Dressing ($3)
Soup of the Day ($4)
Salads
Caeser ($5)
Caeser with Chicken ($9)
Mixed Greens with choice of Ranch or Balsamic with Tomatoes and Cucumbers ($7)
Hot Dogs
Served with choice of regular or whole wheat bun
Turkey ($3)
Kosher All Beef ($3)
Buffalo Brat ($4)
Chicago Style ($3)
with condiment bar :.fresh j alapenos, kraut, mustazd, ketchup and gourmet sauces from
azound the country
Sandwiches (premade)
Veggie :Portobello, Roast pepper, Mix Greens, Hummus, Goat Cheese ($8)
Turkey, Bacon, Avocado Puree and Lettuce and Tomato sandwich ($9)
Albacore White Tuna Salad with Lettuce and Tomato ($6)
Pizza by the slice (made from Crust and reheated on premise)
Plain ($3)
Pepperonni ($4)
Dessert offering :Cookie, Brownie, Candy ($1)
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