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HomeMy WebLinkAboutresolution.council.029-10RESOLUTION NO. Series of 2010 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A LEASE AGREEMENT, AND AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there exists between the City of Aspen and FUTURE CHAMPS LLC; a mutual interest in providing concession operations to the Aspen Recreation Center which would provide food service to the facility; 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 this Lease Agreement for the concession operation to the facility; 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 12th day of Auril , 2010. Michael C. Ireland, 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 day hereinabove stated. Kathryn S. h, City Clerk H:~Iy Documents~Resolution.doc Aspen Recreation Center Concession Facility Page 1 LEASE. AGREEMENT CONCESSION FACILITY AT ASPEN RECREATION CENTER THIS LEASE AGREEMENT is made and entered into this 12"d day of April , 2010 by and between The City of Aspen, 130 South Galena Street, Aspen, Colorado 81611 ("Landlord") and Future Champs of Aspen, LLC whose address is P.O. Box 4121. Aspen, Colorado 81612("Tenant"). WITNESSETH: WHEREAS, Landlord is the owner of the real property and all of the improvements thereon, known as the Aspen Recreation Center, Iselin Pazk, and Rotary Pazk located in Pitkin County, Colorado and described on Exhibit A attached hereto and incorporated herein by this reference; and, WHEREAS, Landlord desires to lease a certain portion of the Aspen Recreation Center, consisting of approximately 299 squaze feet of concession space (including a kitchen area), 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 rent to Tenant the following described premises, subject to the covenants and conditions hereinafter contained, to wit: (a) That portion of the Aspen Recreation Center, Pitkin 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 squaze feet of concession space; and (b) The right to vend upon Iselin Park and Rotary Pazk from a movable cart; and/or acceptable Bar B-Q appazatus approved by the Environmental Health Department. (c) The right to place furniture 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 are 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 terminated, as provided herein, the initial term of this Lease Agreement shall be for a period of five (5) years (the "Initial Term"). The Initial Term shall commence at 12:00 noon on'April 13, 2010 and shall expire at 12:00 noon five calendar years later. A Lease Year shall be a calendar yeaz starting on the commencement date of the Initial Term through 12:00 noon of the following calendaz year and each calendar year thereafter. Tenant's occupancy of the Leased Premises shall be limited by paragraph 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 an additional period of five years. Renewal discussion 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 pazagraph 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 3% of the Gross Sales. This minimum rental is payable in equal monthly installments due on the first day of each calendar 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 Year of the renewal term, and (ii) during the preceding Lease Yeaz for every succeeding Lease Year after the first Lease Yeaz of the renewal term, using the "Price Index", all as more particularly described in Exhibit D appended and made a part hereof as if fully set forth herein. (i) 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 Aspen Recreation Center Concession Facility Page 3 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 Year, Tenant shall deliver to Landlord a written statement signed by a certified public accountant 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 prepared in accordance with such definition. If the percentage rent for the Lease Year 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 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 paragraph 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; 5) retail sales tax recorded at the time of each sale and expressly charged 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. Aspen Recreation Center Concession Facility Page 4 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 operations for at least thirty-six (36) months from the end of the Lease Year 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 Year based on normal accounting procedures, it finds that the Tenant has understated its gross sales for the Lease Yeaz by five percent (5%) 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 first day of the current Lease Year to the date such difference is paid. If such audit discloses that Tenant has understated his gross sales for that Lease Yeaz 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. Equiroment 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. The parties hereto understand that Landlord and Tenant shall finish the Leased Premises by the construction and installation of all work and materials as set forth in 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 work and materials to be constructed or installed in the Leased Premises are satisfactory. Tenant shall prepaze a punch list of all items that require further work and shall present the punch list to Landlord. Landlord shall take all 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. (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 furnish 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 Aspen Recreation Center Concession Facility Page 5 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 upon the termination of this Lease in the same condition as when accepted by Tenant, ordinary wear and tear 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 fixture 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 further, 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 Standards. 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 Park 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 Park, and Rotary Park. Accordingly, Tenant agrees to the following minimum standards of operation and uses of the Leased Premises: Tenant shall operate the leased premises in accordance with the following schedule of hours of operation: June through August -Monday through Sunday between 10 am to 7pm daily. September through October -Monday through Friday, 3 pm to 7pm daily. Weekends; Saturdays and Sundays 12noon to 7pm November through March -Monday through Friday, 3 pm to 7pm daily Weekends; Saturday and Sundays lam to 7pm April through May -Monday through Friday, 3 pm to 7pm daily. Weekends; Saturday and Sunday 12noon to 7pm Aspen Recreation Center Concession Facility Page 6 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, 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 year. 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 year. 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). Any groups or outings desiring food service shall negotiate with Tenant for such service. 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 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 Aspen Recreation Center Concession Facility Page 7 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 Tenant's employees shall not discriminate against any person because of race, religion, color, creed, ancestry, sex, age, sexual orientation or national origin by refusing to furnish 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. Employee Uniforms. All employees of Tenant shall weaz, at all times, uniforms of a consistent appearance. 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. 11. Parking. Free pazking 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 pazking provided for the City's employees and patrons. 12. Accountin¢. 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 notation 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 prepared by Tenant's accountants reflecting the gross sales and sales taxes paid by Tenant for each Occupancy Period. 13. Late Charles. 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 charges. 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 Aspen Recreation Center Concession Facility Page 8 (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 chazges 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 chazge, 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 beaz 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 for 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 administration, is carrying such insurance upon the entire Aspen Recreation Center. Accordingly, Tenant shall pay to Landlord, Tenant's prorated share of the insurance premium Landlord pays to insure the Leased Premises. Tenant's prorated share shall be equal to 0.0037 multiplied by the annual premium paid by Landlord for such insurance. This premium shall be paid to 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 terminate at such time as either party's insurer requires that an additional premium be paid as a consequence of this waiver provision. 16. Liabilit~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 Aspen Recreation Center Concession Facility Page 9 with a One Million Dollar ($1,000,000.00) general aggregate combined single limit covering bodily injury, property damage, and personal injury. In addition, if Tenant serves, manufactures, or distributes alcoholic beverages on the Leased Premises, Tenant shall carry liability insurance 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. If 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 hazards shall be 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 party 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. 17. Notice of Cancellation of Insurance Coverage. The above insurance policies shall contain clauses substantially similar 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. Aspen Recreation Center Concession Facility Page 10 18. Utilities and Maintenance. During the Lease Term, Tenant shall pay $100 monthly as and for its prorated shaze of all chazges for utilities that aze not sepazately metered or contracted for separately 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 other utility or maintenance services used by the Tenant in or about the Leased Premises during the term of this Lease. After the first 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 share of the utilities. 19. Alterations. No alterations, additions, or improvements shall be made, and no fixtures shall be installed in or attached to the Leased Premises without the written consent of the Landlord. Unless otherwise provided herein, all such alterations, additions or improvements 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 termination of this Lease, without hindrance, molestation, or injury. Notwithstanding that they may have become an integral part of the Leased Premises, Landlord may requite Tenant to remove all or any part of such alterations, additions, improvements or fixtures at the expiration or earlier termination of this Lease, restoring the Leased Premises to the same condition existing at the beginning of the original term, ordinary weaz and teaz 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 or 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 specifications approved by Landlord. In doing 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 aze 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 properly 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. Aspen Recreation Center Concession Facility Page 11 20. ReRairs. 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 care 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, wear 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, yards, entrances, hallways and stairs, but shall keep and maintain the same in a clean condition, free from debris, trash, refuse. In 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 carelessness, 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 regazd 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 untenantable for any substantial period of time, the Landlord, after receiving notice in writing of the occun•ence 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 are substantially restored. 22. Sublease/Assignrnent. 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, consolidation 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 Pazagraph shall be void and shall, at the option of the Landlord, constitute a default under the terms of this Lease. Aspen Recreation Center Concession Facility Page 12 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 are 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 ate 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. Siens. 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 permitted by the Landlord shall at all times conform to all municipal ordinances or other laws and regulations applicable thereto. 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 permits 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 similar 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. Aspen Recreation Center Concession Facility Page 13 Tenant shall not use the Leased Premises for any purposes deemed unlawful, disreputable, or extra hazazdous. 26. Quiet Enjoyment. 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. In 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 fixrther 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 are 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 condemnation 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 terminate 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 may be 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, are 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 Aspen Recreation Center Concession Facility Page 14 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 examining 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. 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 making 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 may be 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 are ascertained each month. In Aspen Recreation Center Concession Facility Page 15 addition, upon any such default, or if Tenant be adjudicated a bankrupt, insolvent or placed in receivership, or should proceedings be instituted by or against the Tenant for bankruptcy, 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 charge 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 perfonned by Tenant, unless the same by its or their nature require immediate or eazlier 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 fixed 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 fdr 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 all others on every right and interest of the Tenant in and to this Lease, and on any furnishings, equipment, fixtures, or other personal property of any kind belonging to the Tenant, or the equity of the Tenant 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 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 Aspen Recreation Center Concession Facility Page 16 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 are located. A refusal by the Tenant to execute any such instruments shall entitle the Landlord to at once terminate 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 in 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. Holding Over. This Lease shall expire of its own accord without notice at the end of the term or earlier, 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 vazious rights, remedies, options and elections of the Landlord expressed herein aze 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 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. Sunender 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 wear and tear 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 realty, Aspen Recreation Center Concession Facility Page 17 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. Governing 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. Severabilitv. 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 may be 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 aze no other agreements, understandings, representations, or warranties except as expressly set 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 aze 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 particulaz 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 Aspen Recreation Center Concession Facility Page 18 employee of the Landlord designated by the Director with the responsibility of enforcing any of the terms of this Lease. 48. Bindin Effect. 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. In the event Tenant hereunder is a corporation, this Lease and the performance of all the payments, obligations, conditions and covenants contained herein shall be personally guaranteed by the shareholders 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 year above first written. APPROVED AS TO FORM: ~3ohntiIs orcester, Esq., City Attorney TENANT: Future Champs of Aspen, LLC By: ! ~H~ Sa~U~~i~i4 Title: ©~ ~r LANDLORD: THE CITY OF ASPEN APPROVED AS TO CONTENT: ~~. ~iJ~~ Steve arwick City Manager Aspen Recreation Center Concession Facility Page 19 List of Exhibits Appended to Lease Aereemept A -Description of Leased Premises (including legal description of ARC property 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 -Sample Menu for Summer Season slf$ II Peo~J ~laa'J uoo/ey~ {9B0 .I..L .° ~S$~~ @ G ~ '- c ~.1~13~ :~~9 ~ ~ =~e~~g,~ =a =~ ~ =F W Frst~~ ~ ~ c J ~ F ~ ,~ z .P ~ e ~ N{~l3Sl o ~&~~gg~ ~ Ne ~a N~ <~I~ ~~ I I i :. _ i9a~x~p~° ~~ e s 8~ ~ a s x ~~ ~ a jll ~e __ ~ ~I o n Z gg I~ i mzm. 8 I ~ ~ I ~~ /~ ~. i I ~ 1 ^ I, I- 1.: I. I 1 ^ 1 r,. I~ I I - I I I I ~ I { I I ~ I M __ I _~-~ I ~. 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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 1 200 amp electrica]'service panel live as shown on Ted Guy Assoc drawing 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 14 light fixtures and 4 ventilation grills JUlJ-~-LNVJG 4JFJ~ J~ ! hitUUUKt h VW H55LIC - 'j'rk9`J_'7451~ P. ~~ . __ . - .. F.::.__-.. __... _-_ .. _ 2xlo ~d a - •J . ~ W t 6 z~fp c!U cam t` . 4 .__._.. ._...._.-.._..... .. _ ,. P ~ - ... ~ } ~ __ _ . l.V.. '~ ~ ~ ~~ -t ~ ~ I ~~- ~ ~ S ~~ ' __ . ~ ~- .-t. -~._ r _ ~ ,~ ~ O ,I I t ~ 3 - F to fit. ~"~, ''~ `x- : -~..._ . ~'~' .~Y __~ 1:. ,.~. ~ 1 '_ ~ ; ~r .' - .. .. .. _ .. _ 1 ~~' ~~ ~ Ssr..__,_~~ _ _- .- -~---- - -._._ .. . `9 N • -- . . '.en Tli8CL7CFi8 K aUY'489~C1ATE9 PC ~ ~ . . f4 h'7 °~'+~4Tr wtie arauery~+.~ r~tia~ni~faa &Er an N ~G .(-.~~_~//~(+ R. 4 BpX ~ Sao iE'GiGc~ ^ 2~SALT. CCj„~:RA00 H i 52'1 I9~a} 927-3 7 8 % ' ~Z 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. Aspen Recreation Center Concession Facility Page 20 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 Yeaz 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 year, 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 yeaz as set forth in Pazagraph 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 yeaz 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 adjustment 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 Paragraphs 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 year (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 then to be selected by the parties hereto. In the event of (1) use of comparable statistics 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. 11 U~° ~Yl~ Bunz Menu Naked Juices and Smoothies ($3) Seattle Roast Coffee ($2) Novas Tea ($2) Made to order protein Shake with Powder, Soy or Rice mills, fresh fruit (banana or strawberry) ($4) Veggie Snacks :Carrot Sticks, Sugaz 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 jalapenos, kraut,mustazd, ketchup and gourmet sauces from around 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 Crnst and reheated on premise) Plain ($3) Pepperonni ($4) Dessert offering :Cookie, Brownie, Candy ($1) Aspen Recreation Center Concession Facility Page 22 GUARANTY OF LEASE FOR VALUE RECEIVED, and in consideration for, and as an inducement to the aforesaid Landlord to make the foregoing Lease with Future Champs of Aspen, LLC, as Tenant, the undersigned Irma Samokhina 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 terminated, 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 bankruptcy laws now or hereafter enacted); the undersigned hereby waiving all suretyship defenses. The undersigned further covenants and agrees that this guaranty 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 action 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 may be otherwise specifically provided in the Lease subletting, assignment, or other transfer of the within Lease, or any interest therein, shall not operate to extinguish or diminish the liability of the undersigned guarantors under this guaranty; 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 WITNESS WHEREOF, the undersigned guazantor has caused this guazanty to be executed effective as of the 3 ~ day of ' ~/ , 2010. JPW-3/29/2010-G:\john\word\agr\arc-concession-9-18-02.doc Colorado Casualty. Mertibet or tibcrty Munnl Group COMMERCIAL INSURANCE PROPOSAL PREPARED FOR: FUTURE CHAMPS, LLC PRESENTED BY: MOUNTAIN INS BROKERS DATE OF PROPOSAL: 03-23-2010 POLICY PERIOD: EFFECTIVE DATE: 03-23-2010 EXPIRATION DATE: 03-23-2011 QUOTE NUMBERS INCLUDED: `This Quote Proposal has been developed solely as an estimate of premium for the listed coverages shown, based on the information provided to the Company, and all amounts shown herein are subject to change. This Quote Proposal does not bind or provide actual coverage and is not an offer of insurance. Specific terms of coverage, exclusions, and limitations are contained solely in a completed insurance policy issued by the Company to a named insured and for which a premium has been paid. COMMERCIAL INSURANCE PROPOSAL -PREMIUM RECAP GENERAL LIABILITY COVERAGE: GENERAL LIABILITY PREMIUM $ 957.00 OPTIONAL LIABILITY COVERAGE PREMIUM $ 0.00 TOTAL GENERAL LIABILITY PREMIUM $ 957.00 TRIA COVERAGE: (Please refer to the appropriate *Disclosure Notice for details General Liabili $ 11.00 BALANCE TO MEET MINIMUM PREMIUMS TOTAL PROPOSAL PREMIUM: ** $ 968.00 *ST-ML-505 (Terrorism Insurance Premium Disclosure and Opportunity to Reject) This notice provides information pertaining to the Terrorism Risk Insurance Act ("TRIA"). You may elect to reject coverage for any Commercial Property, General Liability,. Inland Marine, Commercial Protector (BOP), Custom Commercial Protector (CCP), Farm (other than "Multi Peril"), and Umbrella for losses resulting from an "act of terrorism" according to the instructions included within this document. However, this disclosure notice and rejection option does not apply to any Workers Compensation, Crime, Professional Liability, Farm Multi Peril or Commercial Auto coverage that is included in this Quote Proposal. Please refer to the enclosed notice for additional information regazding this act, its effect regazding your policy coverages, and its impact on your premium. *ST-WC-506 (Terrorism Insurance Premium Disclosure) If this disclosure notice is attached, you may not reject coverage for losses arising from an "act of terrorism" which is included within your Workers Compensation quote. Please refer to ST-WC-506 attached to this Quote Proposal for details regazding the Terrorism Insurance Act and its effect regazding your policy coverages and impact on your premium. The premium chazge for coverage displays as Foreign Terrorism Coverage or TRIA (Terrorism Risk Insurance Act) depending upon the applicable terrorism form approved for use in the state where we are quoting your Workers Compensation coverage. Note: Congress did not extend the Terrorism Risk Insurance Act of 2002 for Commercial Crime, Professional Liability, Farm Multi Peril or Commercial Automobile coverages. The disclosure notices referenced herein do not apply for any Crime, Professional Liability, Farm Multi Peril or Auto coverages quoted and a TRIA premium chazge is not included for these lines of business. Your policy will automatically exclude terrorism coverage where permitted by law for these lines of business. *NOTE: Pricing is subject to receipt of MVR **NOTE: ACCOUNT ACCEPTABILITY AND PRICING ARE SUBJECT TO UNDERWRITING REVIEW. GENERAL LIABILITY PROPOSAL LIABILITY LIMITS OF INSURANCE: Each Occurrence Limit $ 1,000,000 j Per Occurrence Medical Expenses $5,000 Per Person Personal and Advertising Injury Limit $ ~ , 000, 000 Any One Person or Or anization Fire Legal Liability ~ 1 00,000 Any one Fire or Ex losion PD Liability Deductible $ 0 $2,000,000 Products-Completed Operations Aggregate Limit $2 ~ 000 ~ 000 ~ /~'o~ ,; o ,_ ~~~~~ ~e~J ~ ETA ` LE GENERAL LIABILITY COVERAGE FORM INCLUDES: Covera a Extension Su lemental Pa ments: Limi[ of Insurance: Bail Bonds $250 Loss of Earnings $250 er da GENERAL LIABILITY EXTENSION ENDORSEMENT INCLUDES: Coves a Descri lion: Revised Limits of Insurance: Non-Owned ArrcraR Included Non-Owned Watercraft Included Pro a Dama e - Borrowed E ui ment Included Pro erty Dama a -Customers' Goods Included Pro a Dama a Liability Elevators Included Damn e B Fire, Li tnin , Ex losion, Smoke or Leaka a $300,000 Medical Payments $15,000 U to 3 ears of the date of the accident Su lementa a ments Covera e A and B Cost ofBail Bonds $2,500 Loss of earnings due to time off work while assisting in the investi ation/defense of a claim or suit $300 Additional Insureds B Contact, A Bement or Permit Included Additional Insured- Vendor Included Broad Fomt Named Insured Included Failure To Disclose Hazards And Prior Occurrences Included Knowled a Of Occurrence, Offense, Claim or Suit Included Liberalization Clause Included Bodil In' Redefined Included Quote/Policy# & Insured: 4003081919, Future Champs, LLC TERRORISM INSURANCE PREMIUM DISCLOSURE AND OPPORTUNITY TO REJECT This notice contains important information about the Terrorism Risk Insurance Act and your option to reject terrorism insurance coverage. Please read it carefully. THE TERRORISM RISK INSURANCE ACT The Terrorism Risk Insurance Act, including all amendments ("TRIA" or the "Act"), establishes a program to spread the risk of catastrophic losses from certain acts of terrorism between insurers and the federal government. If an individual insurer's losses from a "certified act of terrorism" exceed a specified deductible amount, the government will reimburse the insurer for 85% of losses paid in excess of the deductible, but only if aggregate industry losses from such an act exceed $100 million. An insurer that has met its insurer deductible is not liable for any portion of losses in excess of $100 billion per yeaz. Similazly, the federal government is not liable for any losses covered by the Act that exceed this amount. If aggregate insured losses exceed $100 billion, losses up to that amount may be pro-rated, as detettnined by the Secretary of the Treasury. MANDATORY AVAILABILITY OF COVERAGE FOR "CERTIFIED ACTS OF TERRORISM" TRIA requires insurers to make coverage available for any loss that occurs within the United States (or outside of the U.S. in the case of U.S. missions and certain air carriers and vessels), results from a "certified act of terrorism" AND that is otherwise covered under your policy. A "certified act of terrorism" means: [A]ny act that is certified by the Secretary [of the Treasury], in concurrence with the Secretary of State, and the Attorney General of the United States (i) to be an act of terrorism; (ii) to be a violent act or an act that is dangerous to - (I) human life; (II) property; or (III) infrastructure; (iii) to have resulted in damage within the United States, or outside of the United States in the case of- (I) an air carrier (as defined in section 40102 of title 49, United States Code) or United States flag vessel (or a vessel based principally in the United States, on which United States income tax is paid and whose insurance coverage is subject to regulation in the United States); or (II) the premises of a United States mission; and (iv) to have been committed by an individual or individuals as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Government by coercion. REJECTING TERRORISM INSURANCE COVERAGE -WHAT YOU MUST DO We have included in your policy coverage for losses resulting from "certified acts of terrorism" as defined above. THE PREMIUM CHARGE FOR THIS COVERAGE APPEARS ON THE DECLARATIONS PAGE OF THE POLICY AND DOES NOT INCLUDE ANY CHARGES FOR THE PORTION OF LOSS COVERED BY THE FEDERAL GOVERNMENT UNDER THE ACT. If we aze providing you with a quote, the premium chazge will also appeaz on your quote as a sepazate line item chazge. Note: With respect to Excess or Umbrella policies, this offer of coverage pertains only to those lines of business covered by TRIA and, more specifically, does not apply to commercial automobile insurance. In addition, this offer of TRIA coverage is expressly conditioned upon your acceptance of coverage for "certified acts of terrorism" on all underlying insurance policies that aze subject to TRIA. If you reject such coverage on your primary liability policies, you must also reject it on your Excess or Umbrella policy. IF YOU CHOOSE TO REJECT THIS COVERAGE, PLEASE CHECK THE BOX BELOW, SIGN THE ACKNOWLEDGMENT, AND RETURN IT IN THE ENCLOSED ENVELOPE. Please ensure any refection is received within thirty (301 days of the effective date of your policy. I hereby reject this offer of coverage. I understand that by rejecting this offer, I will have no coverage for losses arising from a "certified acts of terrorism" and my policy will be endorsed accordingly. Note that certain states (currently CA, GA, IA, IL, MA, ME, MO, NY, NC, NJ, OR, RI, WA, and WI) mandate coverage for loss caused by fire following a "certified act of terrorism" in certain types of insurance policies. If you reject TRIA coverage in these states on those policies, you will not be charged any additional premium for that state dated verage. 03/~~%iv Policy/older(Applicant Signature Date ~ y /7!'/ ~ Print Name The summary of the Act and the coverage under your policy contained in this notice is necessarily general in nature. Your policy contains specific terms, definitions, exclusions and conditions. In case of any conflict, your policy language will control the resolution of all coverage questions. Please read your policy carefully. If you have any questions regarding this notice; please contact your agent. sT-mrL-sos totros>