HomeMy WebLinkAboutresolution.council.063-10RESOLUTION # lO3
(Series of 2010)
A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE
CITY OF ASPEN, COLORADO, AND WESTERN BUILDING SOLUTIONS
INC. SETTING FORTH THE TERMS AND CONDITIONS REGARDING A
LEASE FOR 38005 HIGHWAY 82 AND AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT
WHEREAS, there has been submitted to the City Council a lease agreement
between the City of Aspen, Colorado, and Western Building Solutions Inc., a copy
of which lease agreement is annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves that lease
agreement between the City of Aspen, Colorado, and Western Building Solutions
Inc. regarding a lease for property at 38005 Highway 82, a copy of which is
annexed hereto and incorporated herein, and does hereby authorize the City
Manager oft City of Aspen to execute said lease on behalf of the City of Aspen.
Dated: ~~ .
>~
Michael C. Irteland, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that theII
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 August 9, 2010
~~'~
Kat S. Koch, City Clerk
~~
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of
by and between Western Building Solutions Inc. (the
"Lessee"), and the City of Aspen (the "Lessor").
ARTICLE I
Demise and Description of Premises
1.1 Lessor is the owner of certain real property located at 38005 Highway 82, Aspen
Colorado (the "Premises").
1.2 Lessor hereby leases to Lessee and Lessee hereby leases from Lessor the
Premises.
1.2 The Lessee shall take and accept the Premises in their present condition, subject
to the obligations of the Lessor and the Lessee as set forth herein.
ARTICLE II
Initial Term of Lease
2.1 The initial term of this Lease shall be for a period of three (3) years, commencing
on August 1, 2010 (the "Commencement Date") and ending on July 31, 2013 (the "Initial
Term"), provided that, unless either Lessor or Lessee provides the other party written notice that
such Initial Term or any extension term will not be further renewed within the time frames set
forth in Section 2.2 of this Lease, such Initial Term or the then applicable extension term shall
automatically renew for an additional one-year term under the same terms, agreements,
covenants, conditions, and provisions. Such automatic extensions shall continue until one of the
parties gives a notice of termination in accordance with Section 2.2 of this Lease.
2.2 Lessor may terminate this Lease at the end of the Initial Term or any time
thereafter by written notice to the Lessee not later than twelve (12) months prior to the desired
termination date. So long as the Lessee is current with all of its obligations to the Lessor and is
not in default of any of the terms, agreements, covenants, conditions or provisions of the Lease at
the time of election, Lessee is herein granted the option to terminate this Lease at any time
during the term of this Lease, provided that, if Lessee should elect to exercise the foregoing early
termination option, Lessee shall notify Lessor in writing of Lessee's election to do so by not later
than twelve (12) months prior to the desired termination date.
ARTICLE III
Minimum Monthly Rent
3.1 The obligation to pay rent under the terms of this Lease shall begin on the
Commencement Date. The minimum monthly rent for the first year of the three-year Lease term
shall be the greater of thirty-five thousand dollazs ($35,000) or one-twelfth (1/12) of 4.61 % of
the prior year's annual gross sales. Near the end of each year of the Lease term, all parties agree
to renegotiate the minimum monthly rent for the upcoming yeaz. If such renegotiation of
minimum monthly rent is not recorded as an addendum to this Lease agreement prior to each
anniversary of the Commencement Date during the three-year Lease term then the minimum
monthly rent shall revert to fifty-one thousand five hundred dollazs ($51,500) per month and
shall be increased by three percent (3%) per year thereafter. Annual gross sales shall include
income (not including sales tax) from sales by Lessee at the Aspen location and the sales of any
associated facility shipping into the city of Aspen. The term "annual" shall refer to the fiscal yeaz
of Western Building Solutions which ends annually on July 31. Rental adjustments shall take
effect as described in paragraph 3.2. Rent will be prorated for any partial month.
3.2 The monthly rent for each month shall be due on or before the Commencement
Date, and on or before the first day of each month thereafter, without any demand therefore and
without set-off whatsoever. Rent shall be paid to the Lessor at the City of Aspen, 130 South
Galena Street, Aspen, Colorado, 81611, or at such other address as Lessor may designate.
3.3 In addition to minimum rent, all other amounts to be paid by Lessee to Lessor
pursuant to this Lease, if any, shall be deemed to be additional rent, irrespective of whether
designated as such, and shall be due and payable within ten (10) business days after receipt by
Lessee of Lessor's statement or together with the next succeeding installment of minimum
monthly rent, whichever shall first occur. Lessor shall have the same remedies for the failure to
pay additional rent as for the nonpayment of minimum rent.
ARTICLE IV
Lessee's Additional Costs And Lessor Costs
4.1 In addition to the minimum monthly rent provided for in Article III above, the
Lessee shall pay all costs, charges, and expenses incurred for the following purposes:
(a) All charges for al] utilities serving the Premises, including, without
limitation, electricity and natural gas, telephone, trash removal, water, and sewer serving the
Premises.
(b) All taxes levied and assessed against the personal property, supplies,
fixtures, inventory, and improvements of Lessee.
(c) All chazges for non-structural repairs and maintenance within the
Premises, which aze not expressly covered by warranties, or insurance provided for herein, as
follows: the maintenance and repair of doors, glass, fixtures, electrical fixtures and systems,
plumbing fixtures and systems, mechanical systems, air conditioning systems, heating systems,
ventilation systems, interior walls and wall systems, floor coverings, doors, interior painting,
ordinazy course roof repairs and maintenance, any improvements made to the Premises by the
Lessee, and all interior janitorial services.
(d) All general and special real property taxes levied and assessed against the
land and improvements of the Premises.
4.2 Lessee shall promptly pay when due, directly to the persons or parties entitled to
payment, for all services and other matters described in pazagraphs 4.1(a), (b), (c), and (d) above.
Lessee shall furnish proof of such payment to Lessor upon request.
4.3 It is the intent of the Lessor and the Lessee that the minimum monthly rent
specified in Article III above shall be absolutely net to the Lessor throughout the terms of this
Lease, and that, except as otherwise expressly provided for herein, all costs, expenses, and
obligations directly relating to the Premises shall be the responsibility of the Lessee; provided,
however, that Lessor will make all structural repairs to the Premises and will keep in good order
and repair the roof, foundations, and subsurface conditions of the Premises, upon knowledge or
notification of the necessity for such repairs, and further provided that if the need for the repair
shall be attributable to any act or omission of Lessee, its officers, employees, licensees, invitees
or contractors, Lessee shall be responsible therefore. Lessor shall be under no liability for repair,
maintenance or alteration with respect to the Premises or any part thereof, or any plumbing,
electrical, or other mechanical installations therein, or any cleaning or painting thereof, except as
may be expressly set out in this Lease or unless due to negligence of Lessor, its officers,
employees, licensees, invitees, concessionaires or contractors.
ARTICLE V
Use
5.1 The Premises are to be used for wazehousing, sale and distribution of all types of
lumber and other building materials, light manufacturing and/or assembly and warehousing of
building products and components for residential construction, and other reasonably related
business activities and necessary administrative and office functions.
5.2 Lessee covenants and agrees that it: (i) will comply with all governmental laws,
ordinances, regulations, and requirements, now in force or which hereafter may be in force, of
any governmental body or authorities having jurisdiction over the Premises; and (ii) shall not
suffer, permit, or commit any waste or nuisance on the Premises. Lessee shall not do or permit
anything to be done in or about the Premises which will cause the cancellation of any insurance
policy covering the Premises.
5.3 Lessee shall be entitled to install in the Premises all trade fixtures, operational
equipment, and furnishings necessary for the operation of Lessee's business and may remove the
same at Lessee's sole cost upon the termination of this Lease and shall repair any damage caused
to the Premises as a result of any such removal.
ARTICLE VI
Iusurauce
6.1 Lessee shall maintain fire and extended coverage, vandalism, malicious mischief
and special causes of loss (risks of direct physical loss) insurance covering one hundred percent
(100%) of the full replacement cost of all improvements, fixtures and personal property, with a
minimum coverage of $2,100,000 on a blanket basis.
6.2 Lessee, at its own expense, shall keep its trade fixtures, floor coverings,
improvements, operational equipment, furnishings, tools, machinery, and inventory insured to
one hundred percent (100%) of its replacement cost.
6.3 Lessee, at its own expense, shall, during the entire term hereof, keep in full force
and effect a broad form commercial general liability policy covering the acts and negligence of
Lessee's employees, agents, and servants occurring on and offthe Premises and naming the
Lessor as an additionally insured party, with a combined single limit, per incident, of not less
than one million dollazs ($1,000,000.00).
6.4 All such policies of insurance shall name Lessee as the insured and Lessor, and
any person, firms or corporations designated by Lessor, and lender(s), if any, shall be named as
additional insureds and loss payees on a primary and noncontributory basis, as their interests
may exist. Such insurance shall be evidenced by a certificate of insurance issued to Lessor and
shall contain language stating that the policy cannot be canceled for any reason without first
giving the Lessor and the Lessee thirty (30) days prior written notice, provided that, in the case
ofnon-payment of premiums, the policy may be canceled upon ten (10) days prior written
notice.
6.5 With respect to any insurance required by the terms of this Lease, both the Lessor
and Lessee waive any rights of subrogation against each other, and any insurance policy
maintained by either shall contain an express waiver of the insurer's right of subrogation against
the other.
ARTICLE VII
Dama¢e or Destruction
7.1 If the Premises shall be partially damaged by any casualty (an "Event") insured
against, the Lessor shall, upon receipt of and to the extent of the insurance proceeds, and as soon
as reasonably permitted by the circumstances, repair the Premises in a manner and to the extent
necessary and desirable in Lessee's sole discretion to carry on Lessee's business operations for
the remainder of the term of the Lease and, until such repair is complete, the monthly rent shall
be abated proportionately as to that portion of the Premises rendered untenantable. Lessee shall
be responsible for the payment of any deductible under the insurance to be canied pursuant to
pazagraph 6.1 above. Notwithstanding the foregoing, i£ (i) the Premises by reason of such
occurrence aze rendered wholly untenantable; or (ii) the Premises should be damaged as a result
of a risk which is not covered by said insurance; or (iii) the Premises aze damaged to the extent
of fifty percent (50%) or more of the then monetary value thereof; or (iv) any or all of the
buildings or common areas of the Premises are damaged to such an extent that the Premises
reasonably cannot be operated as an integral unit, then and in any of such events, the Lessee may
cancel this Lease by notice of cancellation given within ninety (90) days after such event and
thereupon this Lease shall expire, and Lessee shall vacate and surrender the Premises to Lessor
and no rent or other charges will be due from Lessee to Lessor after the date of the event. In the
event Lessee elects to repair any damage, any abatement of rent or other charges shall end five
(5) days after notice by Lessee to Lessor that the Premises have been repaired. If this lease is not
terminated by Lessee, Lessee may repair and restore its property and fixtures as described in
paragraph 6.2 above in a manner and to the extent necessary and desirable in Lessee's sole
discretion to carry on Lessee's business operations for the remainder of the term of the Lease,
and the proceeds of all insurance cazried by Lessee on its property and fixtures shall be held in
trust by Lessee for the purpose of said repair and replacement.
ARTICLE VIII
ins. Alterations. Maintenance Repairs and Access
8.1 Lessee shall not make or cause to be made any material alterations, additions or
improvements or install or cause to be installed any trade fixtures, exterior signs, floor coverings,
interior or exterior lighting, plumbing fixtures, canopies or awnings, or make any changes, to the
interior or exterior of the Premises, without first obtaining written approval from the Lessor,
which approval shall not be unreasonably withheld, conditioned or delayed. Lessee shall present
to the Lessor plans and specifications for such work at the time approval is sought. In the event
Lessor consents to the making of any alterations, additions, or improvements to the Premises by
Lessee, the same shall be made by Lessee at Lessee's sole cost and expense. All such work with
respect to any alterations, additions, and changes shall be done in a good and workmanlike
manner and diligently prosecuted to completion. Any such alterations, additions, or
improvements (but not including trade fixtures or signs) shall at once become a part of the realty
and shall be surrendered with the Premises unless Lessee otherwise elects at the end of term
hereof, in which case Lessee would be responsible for the timely removal of same and the timely
restoration of the Premises to its condition as of the Commencement Date. For the purpose of
this paragraph, "material" shall mean an item, the cost of which installed is in excess of
$10,000.00.
8.2 All work performed by Lessee during the term of this Lease shall be constructed
by Lessee in a good and workmanlike manner, using licensed contractors with appropriate
permits, and Lessee forever warrants that the same shall be free of any liens for labor and
materials and in strict accordance with plans and specifications approved by the Lessor. During
the term of this Lease, Lessee agrees to indemnify, save, and hold harmless the Lessor, its
successors and assigns, against any loss, liability or damage resulting from such work performed
during the term of this Lease.
8.3 Lessee, at its sole cost and expense, shall at all times keep the Premises, including
but not limited to, the interior of the building, all glass and window moldings, exterior entrances,
signs, docks, sidewalks, partitions, doors, fixtures, and appurtenances thereof, including lighting,
electrical fixtures and systems, plumbing fixtures and systems, sewage facilities, heating
equipment and systems, air conditioning equipment and systems, electric motors, floor
coverings, and Lessee's improvements in good clean order, condition, and repair.
8.4 Should any mechanic's or other lien be filed against the Premises or any part
thereof by reason of Lessee's acts or omissions or because of a claim against Lessee, Lessee
shall cause the same to be canceled and discharged of record by bond or otherwise within thirty
(30) days after written notice by Lessor, subject to Article IX below.
8.5 Failure of the Lessee to perform or cause to have performed the work to be
accomplished by Lessee in a good and workmanlike manner using licensed contractors with
appropriate permits, shall constitute a default under the provisions of this Lease by Lessee and
Lessor shall have all the rights and remedies available under the terms of this Lease or at law or
in equity with respect to such default.
8.6 Lessor shall have the right to place, maintain, and repair all utility equipment of
any kind in, upon and under the Premises as may be necessary for the servicing of the Premises
and to enter upon and inspect the Premises as set forth in Section 19.1 of this Lease.
ARTICLE IX
Indemnification
9.1 Lessee shall forever keep the Premises and all improvements placed thereon free
from all claims, liens, claims of lien, demands, charges, encumbrances, or litigation arising
directly or indirectly out of or by reason of any work or activity of Lessee on the Premises, or
any part thereof, and shall forthwith and within thirty (30) days after the filing of any lien for
record, unless in active litigation (at Lessee's expense), fully pay and satisfy the same, and shall
reimburse Lessor for all loss, damage, and expense, including reasonable attorneys' fees, which
it may suffer to be put to by reason of any such claims of lien, demands, charges, encumbrances
or litigation.
9.2 In the event Lessee should fail to obtain the release, dischazge or a bonding of any
lien as provided by paragraph 8.4 above, Lessor shall have the right, at its option, at any time
after the expiration of such thirty (30) day period, to pay the same or dischazge the same with or
without the costs and expenses claimed by such claimant. All amounts so paid by Lessor shall
be repaid by Lessee to Lessor upon receipt of written demand, together with supporting
documentation.
9.3 Lessee shall forever indemnify Lessor and save and hold it harmless from and
against any and all costs, losses, expenses, suits, actions, damages, claims and liability in
connection with loss of life, bodily or personal injury, or property damage arising from or out of
any occurrence in, upon, at or from the Premises, or the occupancy or use by Lessee of the
Premises or any part thereof, or occasioned wholly or in part by any act or omission of Lessee,
its agents, contractors, employees, servants, invitees, customers, licensees, and concessionaires,
or Lessee's breach, default, or nonperformance of this Lease Agreement, in each case during the
term of this Lease. Lessor shall likewise indemnify Lessee against acts or omissions of Lessor,
its agents, contractors, employees, servants, invitees, customers, licensees, and concessionaires,
or Lessor's breach, default, or nonperformance of this Lease Agreement.
9.4 Lessor shall not be responsible or liable at any time for any loss or damage to
Lessee's merchandise, equipment, fixtures, or other personal property or to Lessee's business,
including any loss or damage to either the person or property of Lessee, that may be occasioned
by or through the acts or omissions of persons occupying adjacent, connecting, or adjoining
space including but not limited to that property described in Exhibit "A" unless such acts or
omissions were at the request of, or required by the Lessor. Lessee shall store its property in and
shall use and enjoy the Premises at its own risk, and hereby releases Lessor to the full extent
permitted by law, from all claims of every kind resulting in loss of life, personal or bodily injury,
or property damage, except as a result of Lessor's negligent or wrongful act or omission.
9.5 Lessee shall give prompt notice to Lessor in case of fire or accidents at the
Premises.
9.6 In case either party shall without fault on its part be made a party to any litigation
commenced by or against the other party, then the party at fault shall protect and hold the other
harmless and shall pay all costs, expenses, and reasonable attorneys' fees incurred by the other.
It is expressly agreed that all of the foregoing provisions of this Article IX shall apply and
become effective from and after the Commencement Date.
ARTICLE X
Subordination
10.1 Lessee shall upon request of Lessor execute all reasonable and normal
instruments necessary to permit a mortgage, deed of trust or other encumbrances to be placed on
the Premises or any part thereof as security for any indebtedness of the Lessor, and to
subordinate this Lease and Lessee's leasehold interest to all of such encumbrances and security
interests, provided that so long as no "Default" has occurred under pazagraph 14.1 of this Lease,.
this Lease and Lessee's possession of the Premises shall not be terminated.
10.2 Upon the sale or refinancing by the Lessor of the Premises and improvements
described in this Lease and its exhibits, the Lessee shall cooperate with the Lessor by furnishing
to the Lessor requested estoppel certificates, by executing such instruments as aze necessary to
subordinate the Lessee's leasehold interest to necessary parties, by executing required affidavits
of occupancy and by doing such other things and furnishing such other documents as may
reasonably be required by the Lessor or a purchaser of the Premises, or any part thereof, or from
the Lessor or a lender or a financial institution taking a security interest in the property. Lessee's
failure to deliver an estoppel certificate within ten (10) business days following receipt of a
written request by Lessor shall be conclusive upon Lessee that: (a) this Lease is in full force and
effect without modification; and (b) there are no uncured defaults in Lessor's performance.
ARTICLE XI
Late Char¢e and Interest
11.1 Any payment due under this Lease by the Lessee to the Lessor and not paid
within ten (10) days from the date it becomes due and payable shall beaz a late charge of five
percent (5%) thereof intended to defray any cost to Lessor resulting from late payments, and the
Lessee agrees to pay said late chazge to the Lessor. The payment, together with the late chazge,
shall beaz interest at the rate of one and one-half percent (1.5%) per month from the date the
payment initially became due until the date it is paid.
ARTICLE XII
Condemnation
12.1 As used in this Article XII, the term "condemnation proceeding" shall mean any
action or proceeding in which any interest in the Premises is taken for any public orquasi-public
purpose by any lawful authority through exercise of the power of eminent domain or right of
condemnation or by purchase or otherwise in lieu thereof.
12.2 If the whole of the Premises shall be acquired or taken by condemnation
proceeding, then this Lease shall cease and terminate as of the date of title vesting in such
proceeding.
12.3 If any part of the Premises, including necessary drives, loading, and parking areas,
shall betaken as aforesaid, and such partial taking shall render that portion not so taken
unsuitable for the business of Lessee, then Lessee may, by written notice to Lessor, terminate
this Lease. Despite the foregoing, this Lease shall not cease and terminate if Lessee reconfigures
drives, loading, and pazking areas so as to render the Premises suitable for the business of Lessee
in a manner reasonably consistent with the occupancy as existed prior to the taking. If such
partial taking is not extensive enough to render the Premises unsuitable for the business of
Lessee, then this Lease shall continue in effect. Rent shall be equitably adjusted to account for
such a partial taking.
12.4 If more than fifty percent (50%) of the floor area of said Premises shall be taken
as aforesaid, Lessee may, by written notice to Lessor, terminate this Lease. If this Lease is
terminated as provided in this subsection, rent shall be paid up to the day that possession is so
taken by public authority and Lessor shall make an equitable refund of any rent paid by Lessee in
advance.
12.5 Lessee shall not be entitled to, and hereby expressly waives all claim to, any
condemnation awazd for any taking, whether whole or partial, and whether for diminution in
value of the leasehold or to the fee estate; provided, however, that Lessee shall have the right, to
the extent that the same shall not reduce Lessor's awazd, to claim from the condemnor, but not
from the Lessor, such compensation as may be recoverable by Lessee in its own right, for
damages to Lessee's business, fixtures, improvements and signs. Lessee shall be required to
make its own claim, if any, to the condemnor, and will beaz all costs and expenses in connection
with any such claims.
ARTICLE XIII
Baukruatcv
13.1 If at any time during the term of this Lease there shall be filed by or against
Lessee in any court, pursuant to any statute of the United States or any State, a petition of
bankruptcy or of insolvency or for reorganization or for the appointment of a receiver or trustee
of all or a portion of Lessee's property, or if Lessee makes an assignment for the benefit of
creditors, Lessee shall have breached this Lease, and this Lease, at the option of the Lessor,
exercised after the expiration of the period provided below, may be canceled and terminated,
provided such petition of bankruptcy or of insolvency or for reorganization or for the
appointment of a receiver or trustee shall continue for a period of sixty (60) days and pursuant to
applicable bankruptcy law. In such event, neither Lessee nor any person claiming through or
under Lessee by virtue of any statute or of an order of any court shall be entitled to possession or
to remain in possession of the Premises, but shall forthwith quit and surrender the Premises.
ARTICLE XIV
Default and Remedies
14.1 Upon the occurrence of any of the following events (each, a "Default"), Lessor
shall have the remedies set forth in pazagraph 14.2 below:
(a) Lessee fails to pay the minimum monthly rent or any other sum due
hereunder within ten (10) days after receipt of written notice to Lessee from Lessor.
(b) Lessee fails to perform any other term, condition, or covenant to be
performed by it pursuant to this Lease within thirty (30) days after receipt of written notice to
Lessee from Lessor (or such longer period of time as may be reasonably required to cure a matter
which, due to its nature, cannot reasonably be rectified within thirty (30) days).
(c) Subject to Article XIII above, Lessee or any guarantor of this Lease shall
become bankrupt or insolvent or file any debtor proceedings or have taken against such party in
any court pursuant to State or Federal statutes, a petition of bankruptcy or for insolvency;
reorganization, or the appointment of a receiver or trustee; or Lessee petitions for or enters into a
creditors' arrangement; or suffers this Lease to be taken under a writ of execution; and in each of
the foregoing cases, Lessee fails, within ninety (90) days after commencement of such action to
have such action vacated or dismissed.
14.2 Upon the occurrence of any event set forth in paragraph 14.1 above, Lessor shall
have the option to take any or all of the following actions pursuant, to Colorado law, without
further notice or demand of any kind to Lessee or other person(s):
(a) Immediately reenter and remove all persons or property from the
Premises, storing said property in a public place, warehouse, or elsewhere at the cost of, and for
the account of Lessee, all without service of notice or resort to legal process and without being
deemed guilty of or liable in trespass. No such reentry or taking possession of the Premises by
Lessor shall be construed as an election on its part to terminate this Lease unless a written notice
of such intention is given by Lessor to Lessee. No such action by Lessor shall be considered or
construed to be a forcible entry.
(b) Collect by suit or otherwise each installment of rent or other sum as it
becomes due hereunder, or enforce, by suit or otherwise, any other term or provision hereof on
the part of Lessee required to be kept or performed.
(c) Terminate this Lease by written notice to Lessee. In the event of such
termination, Lessee agrees to immediately surrender possession of the Premises. Should Lessor
terminate this Lease, Lessee shall have no further interest in this Lease or in the Premises, and
the Lessor may recover from Lessee all damages it may incur by reason of Lessee's breach,
including (i) the cost of recovering the Premises, (ii) reasonable attorneys' fees, and (iii) the
worth at the time of such termination of the excess, if any, of the amount of rent and chazges
equivalent to rent reserved in this Lease for the remainder of the stated term over the then
reasonable rental value of the Premises for the remainder of the stated term, al] of which amounts
shall be immediately due and payable at Lessor's election from Lessee to Lessor.
(d) Should Lessor reenter, as provided above, or should it take possession
pursuant to legal proceedings or pursuant to any notice provided by law, and whether or not it
terminates this Lease, Lessor may relet the Premises, or any part thereof, for such term or terms
(which may be for a term extending beyond the term of this Lease) and at such rental or rentals
and upon such other terms and conditions as Lessor in its sole discretion may deem advisable. In
all respects, Lessor shall act in a commercially responsible manner. Upon each such reletting, all
rentals and/or deposits received by the Lessor from such reletting shall be applied, at Lessor's
election, first, to the payment of any indebtedness due hereunder, and the residue, if any, shall be
held by Lessor and applied in payment of future rent as the same may become due and payable
hereunder. If such rentals received from such reletting during any month be less than that to be
paid during such month by Lessee hereunder, Lessee shall pay any such deficiency to Lessor.
Such deficiency shall be calculated and paid monthly. No such reentry and reletting of the
Premises by Lessor shall be construed as an election on its part to terminate this Lease unless a
written notice of such intention be given to Lessee pursuant to subsection (c) of this
paragraph 14.2, or unless the termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, Lessor may at any time hereafter elect to
terminate this Lease for such previous breach.
The remedies given to the Lessor in this paragraph 14.2 shall be in addition to and
supplemental to all other rights or remedies which Lessor may have under law or equity, but in
all respects shall be exercised in accordance with applicable Colorado law.
ARTICLE XV
Ouiet Eniovment
15.1 Subject to Section 15.2 below, Lessor hereby covenants and warrants that, subject
to any trust deeds or mortgages now of record or hereafter placed on record, it is the owner of the
Premises and that Lessee, on payment of rents herein provided for and performance of the
provisions hereof on its part to be performed, shall and may peacefully possess and enjoy the
Premises during the term hereof without any interruption or disturbance by anyone claiming
through Lessor.
15.2 Lessor aclrnowledges and agrees that (i) certain portions of the Premises
comprising residential apartments are currently leased by the Lessor to employees of the
business operated on the Premises on the effective date of this Lease, which leases are described
on Exhibit A to this Lease (the "Emnlovee Leases"), (ii) copies of the Employees Leases have
been provided to Lessee for its review, and (iii) contemporaneously with the execution of this
Lease, Lessee has entered into an assignment and assumption agreement pursuant to which
Lessor assigns and Lessee assumes all rights and obligations of Lessor under those Employee
Leases; provided that Lessee's rights acquired pursuant to such assignment and assumption shall
be limited to those of a sublessor to each of the employees under the Employee Leases and in all
cases shall be subject to the Lessee's rights and obligations under this Lease.
ARTICLE XVI
Surrender of Premises
16.1 At the expiration of this Lease, Lessee shall surrender the Premises in the same
"broom clean" condition as they were in upon delivery of possession thereto under this Lease
(free from debris), reasonable wear and tear excepted, and shall deliver al] keys to Lessor.
Before surrendering the Premises, Lessee shall remove all of its personal property and trade
fixtures and such alterations and/or additions to the demised premises made by Lessee, as may be
specified for removal by the Lessor, and Lessee shall repair any damage caused by such property
or the removal thereof. If Lessee fails to remove its personal property and fixtures upon the
expiration of this Lease, the same, at the option of the Lessor, shall be deemed abandoned and
shall become the property of the Lessor.
ARTICLE XVII
Holdine Over
17.1 No holding over and continuation of any business by Lessee after the expiration
of the term hereof shall be considered to be a renewal or extension of this Lease unless written
approval of such holding over and a definite agreement to such effect is signed by Lessor
defining the length of such additional term. Any holding over without the consent of Lessor
shall be considered to be a day-to-day tenancy at a rental amount equal to three times the daily
rate of the then scheduled minimum monthly rental provided herein, computed on the basis of a
thirty (30) day month.
ARTICLE XVIII
Transfer or Pledee of Leasehold Interest
18.1 Lessee shall not assign this Lease or any interest therein, or sublet the Premises or
any part thereof, or license the use of all or any portion of the Premises or business conducted
thereon or therein, or encumber or hypothecate this Lease, without first obtaining the written
consent of Lessor, which consent may be withheld by Lessor for any reason in Lessor's sole
discretion, and any assignment, subletting, licensing, encumbering, or hypothecating of this
Lease without such prior written consent shall, at the option of the Lessor, be void or terminate
this Lease.
ARTICLE XIX
Lessor's Access to Premises
19.1 With the exception of emergencies, Lessor shall have access to the Premises, and
each part thereof, at all reasonable times for the purpose of inspecting the same, making such
repairs as Lessor may deem desirable, and posting notices which Lessor deems necessary for the
protection of Lessor or any portion of the Premises. Lessee acknowledges that Lessor intends to
mazket the Premises for sale and agrees that Lessor shall also have the right to enter the Premises
(after giving notice three (3) business days in advance) at all reasonable times during Lessee's
business hours to inspect or to exhibit the same to prospective purchasers, mortgagees, tenants,
and Lessees. Lessor agrees to use all reasonable efforts to minimize disruption to Lessee's
business operations in connection with Lessor's entry on the Premises.
ARTICLE XX
Notices
20.1 All notices or demands of any kind which Lessor may be required or may desire
to serve on Lessee under the terms of this Lease shall be served on Lessee (as an alternative to
personal service) by mailing a copy thereof by registered or certified mail, postage prepaid,
addressed to Lessee at c/o Richard Goodman, PO Box 2607, Grand Junction, Colorado 81502, or
at such other address or addresses as may from time to time be designated by Lessee in writing to
Lessor. Service shall be deemed complete at the time of the leaving of such notice as aforesaid
or within three (3) days after mailing of same. All notices and demands from Lessee to Lessor
may be similarly served on Lessee at the following address or at such other address as Lessor
may in writing designate to Lessee: City Manager, 130 South Galena Street, Aspen, Colorado,
81611.
ARTICLE XXI
Attornment
21.1 In the event of the sale or assignment of Lessor's interest in the Premises, or in
the event of any proceedings brought for the foreclosure of, or in the event of exercise of the
power of sale under, any mortgage or other security instrument made by Lessor covering the
Premises, Lessee shall attorn to the assignee or purchaser and recognize such purchaser as Lessor
under this Lease.
ARTICLE XXII
Lessor's Rieht to Cure
22.1 In the event of breach, default, or noncompliance hereunder by Lessor, Lessee
shall, before exercising any right or remedy available to it, give Lessor written notice of the
claimed breach, default, or noncompliance. For the thirty (30) days following the giving of said
notice (or such longer period of time as may be reasonably required to cure a matter which, due
to its nature, cannot reasonably be rectified within thirty (30) days, Lessor shall have the right to
cure the breach, default, or noncompliance involved.
ARTICLE XXIII
Attorney's Fees and Costs
23.1 In the event that a party to this Lease is required to bring suit in order to enforce
this Lease, the prevailing party shall be entitled to recover its reasonable attorney's fees and costs
including "out-of-pocket" costs, the cost of expert witnesses and reasonable administrative
expenses from the non-prevailing party including those incurred in any appeal or in connection
with any bankruptcy case involving the Lessor or the Lessee or the Premises.
ARTICLE XXIV
Force Maieure
24.1 Neither the Lessor nor the Lessee shall be responsible or liable to the other for
any delay in the observance or performance of any term or condition of this Lease to be observed
or performed, to the extent that such delay is proximately caused by causes beyond that party's
reasonable control and occurring without its fault or negligence, including, without limitation,
(i) "Acts of God" (including fire, flood, earthquake, storm, hurricane or other natural disaster),
(ii) war, invasion, act of foreign enemies, hostilities (whether waz is declazed or not), civil war,
rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities,
riots, and other civil commotions, (iii) labor dispute, strike, or lockout, and (iv) failure of any
suppliers, subcontractors, and carriers to substantially meet its performance obligations under
any agreement entered into for the purpose of satisfying any obligation under this Agreement, in
each case whether or not similar to the matters herein specifically enumerated, and any such
delay shall extend by like time any period of performance by such party and shall not be deemed
a breach of, or failure to, perform under this Lease or any provision thereof. The payment of rent
or other sums due hereunder, however, shall not be deemed to be events excusable by Force
Majeure.
ARTICLE XXV
Hazardous Materials
25.1 For purposes hereof, "Environmental Laws" shall mean all existing or hereafter
enacted or amended federal, state, or local laws, statutes, rules, regulations and ordinances,
relating to the protection of human health or the environment or prevention of pollution,
including, without limitation, all requirements pertaining to the protection of the health and
safety of employees or the public and all requirements pertaining to the reporting, licensing,
permitting, investigation, and remediation of emissions, dischazges, releases, or threatened
releases of Hazardous Materials. For purposes hereof, "Hazardous Materials" shall mean (i) any
substance, the presence of which requires investigation or remediation under Environmental
Laws, or (ii) any substance which is or hereafter becomes defined as a hazazdous waste,
hazazdous substance, hazardous material, hazardous chemical, toxic substance, toxic chemical,
or pollutant or contaminant in or pursuant to Environmental Laws, or (iii) asbestos or asbestos
containing material, chlorinated biphenyls or equipment or articles containing same. For
purposes of this Article XXV, the term "Premises" shall refer to the entire Premises.
25.2 Lessee agrees and covenants that during the term of the Lease, there shall be no
use, presence, disposal, storage, generation, release, or threatened release of any Hazardous
Materials on, from, or under the Premises, in any manner which is inconsistent with the uses for
which this Lease is authorized or in violation of any Environmental Laws, without the prior
written consent of Lessor. Lessor shall not unreasonably withhold, condition or delay consent as
long as Lessee demonstrates to Lessor's reasonable satisfaction that such Hazazdous Material is
necessazy or useful to Lessee's business and will be used, kept and stored in a manner that
complies with all laws regulating any such Hazadous Material, in which case, Lessor may
require additional Hazardous Material insurance from Lessee. Lessee shall comply with all
Environmental Laws and obtain and maintain in full force and effect any and all permits,
licenses, approvals or authorizations required under Environmental Laws during the term of this
Lease.
25.3 Lessee shall and does hereby agree to forever indemnify, defend, and hold
hannless Lessor, its employees and its officers and directors from and against any and all losses,
claims, demands, actions, damages (whether direct or consequential), penalties, liabilities, costs,
and expenses, including without limitation all reasonable attorney's fees and legal expenses, and
cleanup or other environmental response costs arising out of any violation or alleged violation by
Lessee or its agents or employees of any Environmental Laws, any breach of the provisions of
this Article XXV, or any environmental condition of the Premises caused by or resulting from, in
whole or in part, the Lessee or its employees or agents, in each case occurring during the term of
this Lease.
25.4 Lessor shall and does hereby agree to forever indemnify, defend, and hold the
Lessee, its employees and its agents, officers and directors harmless from and against any and all
losses, claims, demands, actions, damages (whether direct of consequential), penalties, liabilities,
costs, and expenses, including without limitation all attorney's fees and legal expenses, and
cleanup or other environmental response costs arising out of any violation or alleged violation by
Lessor or its agents or employees of the any Environmental Laws, any breach of the provisions
of this Article XXV, or any environmental condition of the Premises caused by or resulting from,
in whole or in part, the Lessor or its employees or agents.
ARTICLE XXVI
Miscellaneous Provisions
26.1 Neither the provisions herein nor any one or more covenants and/or agreements
herein contained is intended, nor shall the same be deemed or construed, to create a partnership
between Lessor and Lessee, to make them joint venturers, nor to make Lessor in any way
responsible for the debts or losses of the Lessee.
26.2 The invalidity or unenforceability of any provision hereof shall not effect or
impair any other provision hereof.
26.3 No waiver of any breach or breaches of any provision of this Lease shall be
construed to be a waiver of any preceding or succeeding breach of such provision or of any other
provision hereof. No provision of this Lease shall be deemed to have been waived unless such
waiver be in writing and signed by the party against whom the waiver will be enforced.
26.4 Except as otherwise provided, all provisions herein shall be binding upon and
shall inure to the benefit of the parties, their legal representatives, heirs, successors, and assigns.
Each provision to be performed by Lessee shall be construed to be both a covenant and a
condition, and if there shall be more than one Lessee and a guarantor(s) they shall all be bound,
jointly and severally by such provisions. In the event of any sale or assignment (except for
purposes of security or collateral) by Lessor of the Premises or this Lease, Lessor shall, from and
after the Commencement Date (irrespective of when such sale or assignment occurs), be entirely
relieved of all of its obligations as of the time of such sale or assignment or on the
Commencement Date, whichever is later, except for any obligations under paragraph 25.4.
26.5 This Lease, exhibits, riders, and/or addenda, if any, attached hereto, set forth the
entire agreement between the parties. All exhibits, riders, or addenda mentioned in this Lease
are incorporated herein by reference. If any provision contained in a rider or addendum is
inconsistent with a provision in the body of this Lease, the provision contained in the rider or
addendum shall control. It is agreed that this Lease contains no restrictive covenants or
exclusive use permits in favor of Lessee.
26.6 This Lease shall be governed by, and construed and enforced in accordance with,
Colorado law.
26.7 Time is of the essence of each and every provision hereof.
26.8 Indemnifications contained in paragraphs 9.1, 9.3, 9.6, 25.3 and 25.4 of this Lease
shall survive the termination of this lease.
26.9 The headings used herein are for convenience and shall not be considered for
purposes of interpretation or constn:crion hereof.
26.10 Frminine or neuter pronouns shall be substituted for those of masculine form or
vice versa, and the plural shall be substituted for the singular number or vice versa in any place
or places in which the context may require such substitution or substitutions.
26.11 Lessee shall not rewrd this Lease or a memora~um thereof without the prior
written consent of Lessor, which consent may be withheld in Lessor's sole and absolute
discretion.
ARTICLE XXVII
Authority of Si~atoriea
27.1 Each person executing this Lease individually and personally represents and
warrants that he is duly authorized to execute and deliver the same on behalf of the entity for
which he is signing (whether it be a corporation, general or limited partnership, or otherwise) and
that this Lease is binding upon said entity in accordance with its terms.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of the date
fast above written.
LESSOR:
City of Aspen,
Name ~~{ec~z t~-rw;~
Title: Gr ~ 1~..~ a~ '
LESSEE:
Western Building Solutions Inc.
a Colored corporaty ~n~f n
Nam : Richard R Goodman
Title: Senior Vice President