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HomeMy WebLinkAboutLand Use Case.CU.132 W Main St.24-82No. o2y1 CASELOAD SUMMARY SHEET City of Aspen 1. DATE CERTIFIED COMPLETE: SLtne IO, W01 STAFF: (("Me* /'fi/2e �� 2. APPLICANT: L17Uid fi/03,s _— 3. REPRESENTATIVE: 4. PROJECT NAME: 5. LOCATION: / 3,Z I _/no — 6. TYPE OF APPLICATION: 4 Step: GMP PUD Subdivision 2 Step: Subdivision Exception GMP Exception Rezoning SPA 1 Step: Use Determinati nCC' Conditional Special Review HPC No. of Steps: Other: i �9 7. REFERRALS _Attorney _Engineering Dept _Housing _Water City Electric _Sanitation District Mountain Bell _Parks _Holy Cross Electric Fire Marshal /Building Dept 8. DISPOSITIOf� P & Z J Approved Denied School District _Rocky Mtn. Nat. Gas State Highway Dept. _Fire Chief _Other fl2 d' P _ Date .Sunt aa, ,9�� 0 Council Approved Denied Date 9. PRELIMINARY PLAT REFERRALS: Attorney _Sanitation District _Engineering Dept. _Mountain Bell _Housing _Parks Water _Holy Cross Electric City Electric Fire Marshal/Building Dept. 10. PRELIMINARY PLAT - PUBLIC HEARING P & Z Approved Denied Date School District _Rocky Mtn. Nat. Gas _State Highway Dept. Other 11. FINAL PLAT Council Approved Denied Date 12. ROUTING: Attorney / Building ___Engineering Other MEMORANDUM TO: Aspen Planning and Zoning Commission FROM: Colette Penne, Planning Office RE: Arthur's Restaurant, Inc. - Expansion of a Conditional Use DATE: June 22, 1982 There is a question as to whether or not the outdoor dining area at Arthur's Restaurant was given approval as an expansion of the conditional use approval. The area was included in the set of plans that were reviewed at the time of the restaurant expansion. However, the minutes do not reflect that the outside dining area was specifically granted approval. To be assured of this approval, the applicant has chosen to have you review it at this time. The area proposed for outside dining is the area to the west of the building and in the front of the western portion of the restaurant. An emergency exit exists there and tables would have to stop so that its use is not impaired. The HPC has reviewed all of this as part of their review when considering the joining of the two buildings. Their approval has been complied with by the applicant with the exception that the fence to screen cars parked at the back of the patio has not been completed. Any requirements of the Environmental Health Department will be presented at the meeting. The Planning Office recommends approval of this request for expansion of a conditional use in the 0- Office zone. We feel that outdoor dining activity, to a reasonable amount, is a pleasant addition to Main Street, as is the appearance of healthy businesses. The recommended motion is: "I move to approve the expansion of the operation of Arthur's Restaurant, Inc. as a conditional use in the 0- Office zone for the purposes of outside dining on the patio to the west of the restaurant from June 15 - September 15 each year with the following conditions: 1. That the Environmental Health Department approve the arrangement. 2. That the construction of the fence to screen the alley parking area be completed." I move to approve the expansion of the operation of Arthur's Restaurant, Inc. as a conditi use in the 0- Office zone for 'he purposes of outside dining on the pa, to the west of the restaurant -)m June 15 - September 15 each year with the following conditions: 1. That the Environmental Health Department approve the arrangement. 2. That the construction of the fence to screen the alley parking area be completed." cc I v1 rr, ,� l _ CSI C� LJ y_. -- ASPEN *PITKIN ENVIRONMENTAL HEALTH DEPARTMENT MEMORANDUM TO: Colette Penne, Planning Office FROM: Thomas S. Dunlop, Director �5t7 Environmental Health Department DATE: June 15, 1982 RE: Arthur's Restaurant, Inc., - Expansion of a Conditional Use -------------------------------------------------------- - - - - -- No adverse impacts are anticipated from the approval of this submittal. Any concerns from this office will be addressed through the Rules and Regulations Governing Food Establishments in Colorado. TSD /co 130 South Galena Street Aspen, Colorado 81611 303/925 -2020 GARFIELD & HECHT ATTORNEYS AT LAW RONALD GARFIELD VICTORIAN SQUARE BUILDING ANDREW V. HECHT 601 EAST HYMAN AVENUE SPENCER F. SCHIFFER ASPEN, COLORADO 81611 KATHERINE HENDRICKS June 17 , 1982 WILLIAM K. GUEST, P.C. KIRK B. HOLLEYMAN Ms. Collette Penne City of Aspen Planning Department 130 South Galena St. Aspen, Colorado 81611 RE: Arthur's Restaurant, Inc. Dear Collette: TELEPHONE (303) 925 -1936 TELECOPIER (303) 925 -3008 CABLE ADDRESS "GARHEC" Enclosed herewith please find a waiver of notice from the Aspen School District dated June 11, 1982 verifying that the School District does in fact waive the 15 day notice requirement of Section 2- 22(c)(1) of the Municipal Code. Please let me know as soon as possible if there is anything else we need to provide to you prior to the meeting next Tuesday. Thank you for your cooperation. Very truly yours, & HECHT Sperice� F. Schiffer SFS /ms encl. WAIVER OF NOTICE WHEREAS, Arthur's Restaurant, Inc. has applied to the City of Aspen for an expansion and /or modification of a conditional use to permit outdoor dining; and WHEREAS, in accordance with Section 4 -3.3 of the Municipal Code a public hearing will be held before the Aspen Planning and Zoning Commission to consider said applications; and WHEREAS, Sections 2- 22(c)(1) of the Municipal Code requires that a school district be given 15 days prior written notice of such hearing date; and WHEREAS, the Aspen School District has only been given 10 days prior written notice of such hearing date. NOW THEREFORE, having been fully apprised of the subject matter of the public hearing to be held before the Aspen Planning and Zoning Commission on June 22, 1982 to consider the application of Arthur's Restaurant, Inc. for an expansion and /or modification of a conditional use to permit outdoor dining, and finding that adequate notice has been given, the Aspen School District does hereby waive the requirement of Section 2- 22(c)(1) of the Municipal Code that notice of such public hearing be mailed or delivered at least fifteen (15) days prior to the hearing date. Dated this day of June, 1982. ASPEN SCHOOL DISTRICT v Ann Freers Superintendent of Schools (� I )c PUBLIC NOTICE. RE: .#rtlmr's Restaurant, Inc. - Expansion of a Conditional Use NOTIM IS HEREBY GIVEN that a Public Hearing will be held before the Aspen Plarming and Zoning Commission on Tuesday, June 22, 1982 at a meeting to.begin at 5:00 P.M. in the City Council Chambers, City Hall, 130 S. Galena, Aspen, to consider an application submitted by Arthur's Restaurant, Inc. requesting approval to expand the restaurant by providing outdoor dining in the patio area in front of, and to the east of, the building. For further Information, contact the Planning Office, 130 S. Galena, Aspen, 925 -2020, ext. 223. N Perr 'Harve hairman, Aspen Planning and Zoning Commission Published in the Aspen Times on June 17, 1982 City of Aspen Account 0 I I hereby correct copy Expansion of prepaid, and certify that of the Notice a Conditional addressed to See list attached. CERTIFICATE OF MAILING on this eleventh of Public Hearing Use was deposited the following: day of June, 1982, a true and regarding Arthur's Restaurant, Inc. into the U.S. mails, postage PROPERTY OWNERS WITHIN 300 FEET OF ARTHUR'S CHINESE RESTAURANT Weese, Kitty Baldwin 314 W. Willow Chicago, ILL 60614 Nelson, Maxine Box 959 Aspen, CO 81612 Willson, Maudi W. 121 W. Bleeker Aspen, CO 81611 Cantrup, Hans Box 388 Aspen, CO 81612 DeWolf, Nicholas 233 W. Bleeker Aspen, CO 81611 Craig, Diane Elizabeth a /k /a Diane E. Craig Box 783 Aspen, CO 81612 Kettlekamp, Grettana 3408 Morris Ave. Pueblo, CO 81003 Saunders, Margaret W. 231 Encino Ave. San Antonio, TX 78209 Pevehoisi, Ron D. and Ann W. 1509 Princeton Dr. Corsicans, TX 75110 Wille, O. Louis and Francis Lynette 200 W. Main Aspen, CO 81611 B. Fasching & Co. 232 W. Main Aspen, CO 81611 Bodek, Lisi B. Box 736 Aspen, CO 81612 Shechter, Irving Box 401 Aspen, CO 81612 Otte, Michael and Melton, David Box 11299 Aspen, CO 81612 Dimitrius, Ralli Huebner - Dimitrius, Jo Ellen 200 S. Sierra Madre Blvd. Pasadena, CA 91109 Loushin, Hazel Kasper, Katherine J. Box 582 Aspen, CO 81612 Brungs, Sebastian J. Box 966 New Castle, CO 81647 Jones, David F. 120 W. Hopkins Aspen, CO 81611 Coordes, Heinz E. and Karen V. 233 W. Main St. Aspen, CO 81611 Newkam, Claire M. Box 2808 Aspen, CO 81612 Runnalls, Patricia Carter, Jon and Jeanne c/o Patricia Runnalls Box 2348 Aspen, CO 81612 Holahan, Wyle 200 W. Hopkins Aspen, CO 81611 Holmes, Burt B. 6825 S. Delaware Tulsa, OK 74136 Lafkavitz, Barry and Vicenzi, George A. Box 364 Aspen, CO 81612 Buesch, Richard W. and Valerie C. 35 West 64th St. New York, New York 10023 MEMORANDUM TO: Tom Dunlop, Environmental Health Department FROM: Colette Penne, Planning Office RE: Arthur's Restaurant, Inc. - Expansion of a Conditional Use DATE: June 11, 1982 Arthur's Restaurant, Inc., (David Moss) has submitted an expansion of a conditional use application for this restaurant located at 132 W. Main St., Aspen. The request is being made to expand to provide outdoor dining in the patio area in front of, and to the east of, the building. This item will be considered at City P & Z at a Public Hearing on June 22, 1982. Please respond with comments regarding this application by Wednesday noon, June 16. Thank you for your time. 0 GARFIELD & HECHT RONALD GARFIELD ANDREW V. HECHT SPENCER F. SCHIFFER KATHERINE HENDRICKS (ADMITTED IN MASSACHUSETTS ONLY) HAND DELIVERED 601 EAST HYMAN AVENUE ATTORNEYS AT LAW VICTORIAN SQUARE BUILDING ASPEN, COLORADO 81611 June 10, 1982 City of Aspen Planning Office 130 East Galena Aspen, Colorado 81611 Attention: Ms. Collette Penne RE: Arthur's Chinese Restaurant - Expansion and /or modification of Conditional Use Dear Collette: TELEPHONE (303) 925 -1936 TELECOPIER (303) 925 -3008 CABLE ADDRESS "GARHEC As you well know, it is our position that Arthur's does not need another approval in order to provide outdoor dining. However, in view of the fact that a final deter- mination on that issue cannot be made in time for us to give adequate notice for the P & Z meeting June 22, 1982, to be on the safe side, we would like to proceed formally as if such a review was in fact required. Accordingly, I am submitting herewith an application to the P & Z for approval of a conditional use expansion and /or modification under Section 24- 3.3(c) of the Municipal Code, to- gether with with the $225.00 fee and a list of all owners of property within 300 feet of the property in question. Plans depictinq the proposal will be submitted separately. Thanks for your cooperation in processing this as expeditiously as possible. Very /fruly yours, F. Schiffer SFS /rc Enclosures cc: Mr. David Moss P.S. Also enclosed, is a copy of the Lease indicating the right to use and possession of the premises. N RONALD GARFIELD ANDREW V. HECHT SPENCER F. SCHIFFER KATHERINE HENDRICKS (ADMITTED IN MASSACHUSETTS ONLY) GARFIELD & HECHT ATTORNEYS AT LAW VICTORIAN SQUARE BUILDING 601 EAST HYMAN AVENUE ASPEN, COLORADO 81611 June 10, 1982 HAND DELIVERED Aspen Planning and Zoning Commission 130 South Galena Aspen, Colorado 81611 RE: Arthur's Chinese Restaurant - Expansion and /or Modification of Conditional Use Dear Commission Members: TELEPHONE (303) 925 -1936 TELECOPIER (303) 925 -3008 CABLE ADDRESS "GARHEC" Please accept this letter as an application for approval of a conditional use expansion and /or modification under Section 24- 3.3(c) of the Municipal Code for Arthur's Chinese Restaurant. The specific request is to provide outdoor dining in the patio area in front of,and to the east of.,the building as depicted in the plans submitted herewith. There will be a maximum seatinq capacity of 40. The availability of the outdoor dining would, of course, be dependent upon the weather conditions, but it is contemplated that it would generally be between mid -June to mid - August. For purposes of specificity, however, it is requested that formal approval be for the period each year from June 15th through September 15th. As you know, outside dining has been available at Arthur's for many years, even prior to its conversion to a Chinese restaurant. That service was temporarily suspended last summer season as a result of the renovation and expansion. At the time of your prior approval,it was contemplated that it would be restored as soon as practicable in the new location now provided. The only difference between the prior service and that proposed, is the change in location from the west and in front, to the east and in front. The seating capacity will be the same as that which previously existed for 40 people. GARFIELD & HECHT It is submitted that this request satisfies and complies with all of the requisite criteria in that it: (1) complies with all requirements imposed by the Zoning Code; and (2) is consistent with the objectives and purposes of the Zoning Code and applicable zoning district; and (3) is designated to be compatible with surrounding land uses and uses in the area. Thank you for your consideration. Very truly your , . p8 'racer F. Schiff SFS /rc GARFIELD & B ECHT ATTORNEYS AT LAW RONALD GARFIELD VICTORIAN SQUARE BUILDING ANDREW V. HECHT 601 EAST HYMAN AVENUE SPENCER F. SCHIFFER ASPEN, COLORADO 81611 KATHERINE HENDRICKS WILLIAM K. GUEST, P.C. KIRK B. HOLLEYMAN June 10, 1982 Ms. Collette Penne City of Aspen Planning Department 130 South Galena Aspen, Colorado 81611 !` JUN HAND DELIVERED Re: Arthur's Restaurant, Inc. - Application for Approval of Expansion and /or Modification of Conditional Use Dear Collette: TELEPHONE (303) 925 -1936 In my hast to get the application in to you today, I failed to mention that the correct name of the applicant is Arthur's Restaurant, Inc., a Colorado corporation, rather than Arthur's Chinese Restaurant. I have already called to notify Kim of this and just want to confirm it with you. Thanks again for your continued cooperation. Very truly yours, GARFIMD & HECHT F. Schiffer SFS /ew O 1r�!% GAR FI ELD & H ECHT RONALD GARFIELD ANDREW V. HECHT SPENCER F. SCHIFFER KATHERINE HENDRICKS WILLIAM K. GUEST, P.C. KIRK B. HOLLEYMAN ATTORNEYS AT LAW VICTORIAN SQUARE BUILDING TELEPHONE 601 EAST HYMAN AVENUE 925-1936 925-1936 TEL TEL ASPEN, COLORADO 81611 (303) 925 -3008 CABLE ADDRESS June 4, 1982 °GARHEC° Ms. Collette Perme City of Aspen Planning Office 130 S. Galena St. Aspen, CO 81611 Re: Arthur's Restaurant - Outside Dining Dear Collette: As you know, Arthur's Restaurant wishes to provide outdoor dining this summer in the area designated for it on the plans which were submitted at the time approval was received for expansion of the conditional use. It is my understanding that this outdoor dining proposal was presented to and thoroughly discussed by P &Z and incorporated in their approval. The actual implementation of outdoor dining, however, was always scheduled to be delayed until this summer. As a result of that delay there is apparently some question in your office as to whether or not the issue was previously discussed and approved. If you would please check your file with specific reference to sheets A -1 and A -6.3 of the plans I think you will agree that approval has already been received. I would also point out that this is not, in any event, a modification, structural enlargement, or expansion in ground area of an approved conditional use for the following reasons: 1. The outdoor dining was an integral part of the restaurant for many years even prior to its conversion to a Chinese restaurant. 2. The outdoor dining was considered by the P &Z and incorporated, if not specifically, then certainly by clear implication in the approval for expansion of the conditional use. 3. There would be no additional impact resulting from use of the outside dining area since it will be offset by the elimination of downstairs dining indoors while outdoor dining is available. GARFIELD & HECHT Collette Perme June 4, 1982 Page 2 Notwithstanding all of the above, if it is determined by the Planning Office that this must go back to P &Z would you please place this on the next P &Z agenda for June 22nd. Time is of the essence since the summer season is almost here and we would therefore very much appreciate your handling this as expeditiously as possible. Thank you for your cooperation. SFS /mlc Very truly yours, 1 GARF ELD & c r F. cc: Mr. Davis Moss V i �I NET GROUND LEASE ii I I 14ET GROUND LEASE (hereunder this "Lease "), made !!and entered into this i 2` day of m ` , 1981, by land between THE CITY OF ASPEN, (hereinafter "Lessor "), and DAVID MOSS (hereinafter "Lessee "). ii WHEREAS, in consideration of the rents and covenants I herein specified to be paid and performed by Lessee, Lessor iihereby demises and leases to Lessee, and Lessee hereby l leases from Lessor for the term hereinafter specified, that - !'certain parcel of land in Pitkin County, Colorado, described ,'in paragraph 2.0 below (hereinafter the "Leased Premises "); and WHEREAS, David Moss formerly owned the Leased i ;':Premises known as Arthur's Chinese Restaurant; and WHEREAS, the ownership of the Leased Premises was !transferred by David Moss to Lessor; and, i I! WHEREAS, the parties hereto wish to establish a •, agreement whereby Lessee will make all payments necessary � to ensure that Lessor makes no payments necessitated by its �iownership of the Leased Premises not reimbursable by Lessee; ji NOW, THEREFORE, in mutual consideration of the ji terms, conditions and covenants contained herein, Lessor !!hereby demises and leases to Lessee and Lessee hereby leases Jifrom Lessor, the Leased Premises as described hereunder, ilaccording to the terms, conditions and covenants containe in this lease agreement. 1. Term The term of the lease shall be seventy -five (75) years from the date of this Lease unless sooner terminated iias hereinafter provided. This Lease may be terminated by Neither party upon one hundred twenty (120) days written i notice to the other party at the address provided herein. On the date of termination of this Lease in accordance with this paragraph 1, neither party shall have any further i ,obligation to the other hereunder. rte, (a) In the event Lessor elects to terminate this Lease, Lessor shall on the date such termination becomes effective tender to Lessee or its nominee a quit claim deed conveying the ownership of the Leased Premises to Lessee or Lessee's nominee upon receipt of all payments due or liability incurred under this �i Lease, including payment of two (2) years basic rent; provided, however, that Lessor warrants that it will not permit any liens or encumbrances to be filed against the Leased Premises during i i the term of this Lease, and any such lien or encumbrance, if I filed, shall be subordinate to Lessee's prior lien under this is Lease to terminate'and receive back the Leased Premises free and l clear of all such liens and encumbrances. (b) In the event Lessee elects to terminate this Lease Lessee shall be entitled to receive from Lessor the above- mentioned deed upon payment to Lessor of an amount equal to two I (2) years basic rent for the Leased Premises. Lessee may only 11 terminate this Lease with the written consent of any holder of a i leasehold mortgage as defined herein. (c) Upon termination of this Lease by either j, party the other party shall, upon request, be entitled to have the appropriate releases executed in accordance with paragraph 19.2 of this Lease. �! 2. Leased Premises The Leased Premises shall mean !i I that certain real property described below, excluding any and all improvements thereon. Lots K, L, M, N and the western one -half (W 1/2) of Lot O, all lying within Block 58, City and Townsite of Aspen, Pitkin County, Colorado Lessor agrees that at such time as any part of th3 Leased Premises is not necessary for operation of the restaurant under the zoning provisions of the Municipal Code of the i City of Aspen, Lessee may apply for further subdivision of the property, as if Lessee were the owner, pursuant to and in accordance with state and local law and approval procedures, ii and if such approval is granted Lessor shall, by quit -claim deed, reconvey that property not needed for the restaurant to Lessee or Lessee's nominee in accordance with the warranties set out in paragraph 1(a) of this Lease. 2 Ienr, 3. Rent 3.1 Lessee shall pay Lessor as rent for the Leased Premises a monthly basic rent of One Thousand and ! !No /100 Dollars ($1,000.00) due on the eighteenth (18th ) day of ( each calendar month of the lease term, or an amount equal to ten ;percent (108) of the Gross Sales of Lessee derived from the jjsale of liquor on the Leased Premises during the preceding imonth, whichever is greater. Every five (5) years from the iidate hereof Lessor may in its discretion review the amount of !base rent reserved herein to determine whether such is suffi- tI cient for purposes of this Lease. A standard of reasonable- ness shall govern Lessor's determination. 'I I 3.2 As used herein, the term "Gross Sales" P Ishall mean the total amount charged by Lessee in connection with all sales of liquor made on, in or through the Leased jPremises, whether for cash or on credit, less the amount of any sales or excise tax imposed by any governmental agency ;which is both added to the selling price and paid to the , taxing entity by Lessee. it 3.3 For the purpose of ascertaining the ,amounts payable to Lessor under this Lease, Lessee agrees to ' (2) years prepare and keep for a period of not less than two following the end of each calendar year adequate records which shall show the daily receipts from all sales of liquor on the Leased Premises. Lessee shall record at the time of ;i sale all receipts from sales or other transactions whether for cash or credit, in a cash register or registers having a cumulative total which shall be sealed in a manner acceptable !! to Lessor and which shall have such other features as Lessor may designate. Lessee further agrees to keep for at least i two (2) years following the end of. each calendar year all pertinent original sales records or such other records as Lessor may agree to in writing. As used herein,.the phrase j "pertinent original sales records" shall (a) all cash register tapes; (b) such other sales records, if any, which would normally be examined by an independent accountant pursuant to accepted auditing standards in performing an audit 3 jj I I l of Lessee's sales; and (c) copies of any and all sales tax returns N and use tax returns, if any, filed by Lessee with any governmental I lauthority. During the term of this Lease and any renewal thereof, m all of the records provided for hereunder shall be kept on I the Leased Premises. Following the expiration or earlier , 11 ltermination of this Lease, such record shall be kept at a ;location satisfactory to Lessor. it 3.4 Within thirty (30) days after the end of each Lease year Lessee shall provide Lessor a written statement prepared by a Certified Public Accountant, or some _ other person acceptable to Lessor, setting forth the amount of Lessee's Gross Sales of liquor for the preceding calendar year. 3.5 Lessor, may, at its option, make or �i ':cause to be made an audit of Lessee's records of Gross Sales of liquor. In the event that such -audit reveals a deficiency i in the amount of rent paid out of Lessee's Gross Sales, and the additional amount due Lessor is less than three percent (3%) of the full amount actually due, Lessor shall pay for ,the audit. In the event the audit reveals a deficiency in an an amount equal to three percent (3 %) or more of the amount acutally due, Lessee shall pay for the audit and shall within seventy -two (72) hours tender to Lessor the amount of the deficiency plus interest from the date such amount was due at an interest rate of eighteen percent (18 %) per annum. In the event the audit reveals a deficiency in an amount equal to six percent (6 %) of the amount actually due, Lessor may treat such as an event of default as defined I jherein and the Lessee shall within seventy -two (72) hours i tender to Lessor 'the amount of the deficiency plus interest , at eighteen percent (18 %) per annum. No good faith deficiency !in rentals paid shall constitute an event of default. 3.6 Except as otherwise provided herein, the lbasic rent provided for in this Lease shall be an absolutely " net return to Lessor for the term of this Lease, free of any loss, expenses or charges with respect to the Leased Premises, 4 ' P( including maintenance, repairs, costs of construction and replacement of buildings or improvements, insurance, taxes and assessments now or hereafter imposed upon or related to the Leased Premises. Lessee shall bear and pay for such charges. 3.7 During the term of this Lease, Lessee shall 1 pay, as they become due and payable and before they become delin- quent, all taxes, assessments and other public charges of any kind and description levied or presently existing upon or now or ,hereafter assessed against the Leased Premises or upon any of the improvements thereon, or which may be levied or assessed upon the leasehold estate hereby created or upon Lessor's interest herein or upon Lessor's reversionary interest in the fee, including those arising by reason of the occupancy, use or possession of the Leased Premises by Lessee, (hereinafter collectively "Taxes "); provided, however, that with respect to assessments levied for public improvements which may be paid in installments, Lessee shall be obligated to pay only those installments due during the term of this Lease, and Lessee shall not be liable for the payment of taxes of which Lessee neither has nor should have knowledge until thirty (30) days from the day written notice is given Lessee by Lessor of the nature and amount of the hitherto unknown tax. No special taxes shall be levied by Lessor against the Leased Premises or Lessee that are not levied against similar property or users. If ownership by the Lessor (City of Aspen) removes the Leased Premises from the tax rolls the Lessee hereby agrees to pay an amount equal to what the tax would be if the Lessee continued to own the property. In the event the Leased i Premises are included in an improvement district as defined in the Municipal Code of of the City of Aspen, Lessee shall pay such assessments as may be levied upon the Leased Premises. 3.8. In the event that Lessee shall desire to contest in good faith any tax, Lessee may file in Lessee's 'name or in the name of Lessor as may be required all such protests or other instruments and institute ard, prosecute proceedings for the purpose of such contest, but shall, if required by Lessor, 5 furnish to Lessor reasonable security against any loss by reason of such contest. 3.9 If at any time during the term of this Lease, under the laws of the State of Colorado or any political subdivision thereof in which the Leased Premises are situated, la new tax or excise on rents is levied or assessed on rents lifrom land and /or buildings, Lessee shall pay and discharge jlsuch tax or excise on rents but only to the extent of the i amount thereof which is lawfully assessed or imposed upon Lessor and which was so assessed or imposed as a direct it result of Lessor's ownership of the Leased Premises or of i this Lease or of the rentals accruing under this Lease. I ` (Nothing herein shall be construed to require Lessee to pay M any estate, inheritance, succession, income or similar tax (� of Lessor. I 3.10 Lessor hereby authorizes and empowers Lessee to act as attorney -in -fact for Lessor, at Lessee's sole expense, in the institution of proceedings to secure a ;ireduction in the real estate taxes assessed against the (Leased Premises for each and any year or portion thereof !!included in the term of this Lease. Ii 4. Representation of Title; Quiet Enjoyment 4.1 Lessor represents that the Leased Premises are owned by Lessor in fee, pursuant to that deed from David Moss to Lessor, subject only to liens, restrictions and encumbrances of record and any restrictions established by the general planning and zoning code of the City of Aspen, Colorado, and any state of facts which an accurate survey or Ilphysical inspection would show. Lessee, by entering into ,!this Lease, agrees that Lessee is satisfied as to Lessor's �ititle to the Leased Premises and has found the same to be ,satisfactory. 4.2 Lessor hereby covenants that Lessee shall have the sole, peaceable and uninterrupted use and •occupancy of the Leased 'Premises during the term of this Lease, for so long as Lessee pays the rent spdcified herein and performs all covenants herein agreed to be performed by Lessee. 6 5. Use of Leased Premises 5.1 Lessee may use the Leased Premises for any I I purpose which conforms with the requirements of all policies of ( insurance at any time in force with respect to the Leased Premises and all laws, ordinances and regulations applicable to the Leased Premises.. Lessee may use the premises only for the purposes of h continuing a restaurant with customary accessory uses including I ibut not limited to dwelling units. Any change in use shall be .;approved in writing by the Lessor, and no such approval shall be_ I unreasonably withheld. ! 5.2 Lessee agrees that on those days that the Aspen Lower Elementary School is in session during the school I� ;lyear, no alcoholic beverages will be served on the Leased Premises prior to the .hour of four (4) o'clock P.M. This limitation shall not affect Lessee's right to serve alcoholic ;ibeverages on weekends, during school vacation periods or 'after the hour of four (4) o'clock P.M. 6. Utilities 6.1 Lessee shall pay all charges for water, 1. electricity, gas, sewer, telephone and other utility services (furnished to the Leased Premises. {i 6.2 Lessor shall not be required to furnish Lessee with any utility services, provided that Lessor shall .cause, at Lessee's expense, gas, water, sewer, telephone and �i "electricity to be available at or near a boundary line of the 'leased premises, and Lessee at her expense shall connect and 'extend said utilities into the Leased Premises. 6.3 Lessee is satisfied that Lessor has performed !under this provision, and Lessee acknowledges that utility services lipresently in existence conform to the requirements of this provi- sion. i 7. Assignment and Subletting Lessee shall not be allowed to sublease and assign this lease without the consent of Lessor, which consent shall not be unreasonably withheld; provided, II 1 however that the Lessee's obligations hereunder shall continue in ''full force and effect in accordance with the terms of this Lease 7 II ' I ,, unless such written consent of Lessor expressly releases Lessee therefrom; and provided that Lessor shall release Lessee if ;Lessee delivers to Lessor such information and documentation as i ii shall be reasonably necessary to assure Lessor that the proposed sublettor or assignee is of good moral character and is financially 'I able to fulfill Lessee's obligations hereunder. Upon the provision by Lessee to Lessor of the above information and documentation, Lessor shall not unreasonably withhold its consent to the release i t of Lessee from Lessee's obligations hereunder. 8. Mortgaging of the Leasehold Estate and the Fee 8.1 (a) Subject to the provisions and restrictions contained in this paragraph 8, Lessor agrees li that Lessee may at any time during the term hereof mortgage the leasehold estate of Lessee created.hereby by first or second mortgage or first or second deed of trust. Lessee shall give Lessor notice of any such leasehold mortgage or leasehold deed of trust by delivering a conformed copy thereof to Lessor within ten (10) days of executing the same. Lessee hereby covenants to pay all amounts due in accordance with the terms of any such leasehold mortgage or leasehold deed of trust. In the event that Lessee places such a lien or liens upon the leasehold estate of Lessee created hereby, any such leasehold mortgagee ( "Leasehold Mortgagee ") shall in no event become personally liable to perform the obligations of Lessee under this Lease unless and until Leasehold Mortgagee becomes the owner of the legal title to the leasehold estate and thereafter Leasehold I Mortgagee shall remain liable for such obligations only for �I it so long as Leasehold Mortgagee remains the owner of the legal title to the leasehold estate. Lessor agrees to execute any subordination agreement ,required by a lender in order for Lessee to obtain such leasehold mortgage or leasehold deed of trust; provided, however, that Lessor shall not be obligated to execute any subordination agreement which would require Lesc�r to expend any monies pursuant thereto. The restrictions in paragraph 7 hereof with respect to assigning l and subletting shall not apply to any Leasehold Mortgagee that becomes the owner of the legal title to the leasehold 1 . estate and this Lease shall be freely assignable by any such I Leasehold Mortgagee and its assignees so long as each such assignee is of good moral character and assumes and agrees II to perform all of Lessee's obligations hereunder, and furnishes ii Lessor with a true copy of any such assignment within ten (10) days of execution of same. ii (b) If Leasehold Mortgagee shall have given to Lessor, before any default shall have occurred under this lease, a written notice, specifying the name and address of Leasehold j Mortgagee, Lessor shall furnish to Leasehold Mortgagee, at the li address last given, a copy of any notices given by Lessor to Lessee. No notice by Lessor to Lessee shall be deemed to have j -been given unless and until a copy thereof shall have been so it given to Leasehold Mortgagee, and no default predicated on the giving of any notice shall be deemed to have occurred unless a copy of such notice shall have been given to Leasehold Mortgagee. (c) Lessee irrevocably directs that Lessor accept, and Lessor agrees to accept, performance by the Leasehold Mort- gagee of the obligations of Lessee with the same effect as though performed by Lessee; provided, however, that such performance by j a Leasehold Mortgagee occurs within the time prescribed in this Lease plus (i) with respect to any default by Lessee other than a default in the payment of rents, an additional period of thirty (30) days or (ii) with respect to any default by Lessee in the Ij payment of rents, an additional period of ten (10) days; and provided further that with respect to any default by Lessee which ii by its nature cannot be cured by Leasehold Mortgagee withir said H additional thirty'(30) day period or until Leasehold Mortgagee obtains possession, Leasehold Mortgagee shall have a reasonable time to cure such default, provided that said Leasehold Mortgagee proceeds diligently and in good faith to cure such default or to enforce its remedies so as to obtain possession. Lessor agrees that the curing or remedying of Lessee's defaults by Leasehold Mortgagee within the above- stated time shall be deemed the curing or remedying thereof by Lessee. Pi (d) Notwithstanding any other provision of this lease, Lessor shall not terminate this Lease on the occurrence of an Event of Default, as defined in paragraph 15 hereof, provided that (i) Leasehold Mortgagee shall have cured said default within the time periods and subject to the conditions herein set forth, (ii) Leasehold Mortgagee continues to fully perform all the obligations of Lessee under this Lease that can be performed by Leasehold Mortgagee without possession of the Leased Premises, including but not limited to payment of all rents and any and all other monies deemed payable by Lessee hereunder, and (iii) the Leasehold Mortgagee shall diligently pursue obtaining possession of the premises and if Leasehold Mortgagee is able to obtain possession of the premises, then Leasehold i Mortgagee shall perform fully all of Lessee's obligations hereunder. (e) In the event that the improvements upon the Leased Premises are damaged or destroyed, Leasehold Mortgagee is hereby authorized, at its discretion and sole expense, to repair, restore or replace the Leased Premises and /or the improvements thereon under the same terms and conditions as would be applicable in the case of such repair, restoration or replacement by Lessee. Leasehold Mortgagee shall thereupon be subrogated to the rights of Lessee to the insurance proceeds payable as a result of the damage or destruction as if Leasehold Mortgagee were Lessee under this Lease. 8.2 (a) Subject to the provisions of this paragraph 8, and provided that Lessee is not then in default hereunder, Lessor agrees that Lessee may execute a first or second mortgage or first or second deed of trust upon the Leased Premises and /or leasehold estate (i) to finance the construction or repair of any improvements that are in conformance with the ordinances and restrictions established generally by the City of Aspen, Colorado or (ii) to finance for any period within the lease term an amount not in excess of 80% of the appraised value of the Leased Premises. 10• 'i Lessor agrees, within fifteen (15) days after receipt of a ii written request from the Lessee, to provide written notice to the proposed mortgagee or holder of a deed of trust I confirming the the right of Lessee to enter into a first.or i second mortgage or deed of trust according to the terms of jj this Lease. j i (b) Lessor further agrees that within fifteen ,, (15) days after receipt of a written request from Lessee, Lessor shall enter into an agreement with such mortgagee(s) or holder(s) of deed(s) of trust that Lessor's interest in the Leased Premises shall be subject to the lien given by Lessee for the benefit of such mortgagee(s) or holders) of !the deed(s) of trust to finance the construction of the i; above improvements; provided, however, that such agreement ;shall be subject to the following terms and conditions: (i) The loan proceeds shall be disbsrsud only for the construction costs of the above improvements and only upon the receipt by the lending institution of customary waivers of lien and contractor's and subcontractor's affidavits; (ii) The obligation to repay such loan shall be evidenced by Lessee's promissory note(s) and such promissory note(s) shall expressly provide that there shall be no personal liability or responsibility on the part of Lessor for any payment due under the terms of said note(s); i (iii) Lessor shall not be liable for any deficiency arising from the foreclosure of any such mortgage(s) for deed(s) of trust and nothing contained therein shall Icreate or impose any personal obligation, liability or . responsibility on Lessor for the payment of any sums secured ,thereby or for the payment or performance of any obligation(s) or covenant(s) secured thereby or provided for therein; (iv) Any such mortgage(s) or deed(s) of trust shall not be accelerated or foreclosed (by judicial ''proceeding or otherwise) until Lessor shall have had at least thirty (30) days within which to cure Lessee's default 11 I after receipt by Lessor of written notice from the holder of such mortgage(s) or deed(s) of trust of Lessee's failure to I j cure such default after notice to Lessee; (v) In the event Lessor does cure any such default of Lessee and terminates Lessee's interest in !I i this Lease pursuant to the provisions of paragraph 15 hereof, II Lessor shall thereafter be subrogated and succeed to all i i rights and privileges of Lessee under such mortgage(s) or ideed(s) of trust (including, without limitation, any right i Ito redeem from any foreclosure thereof); I (vi) Lessor shall have the right, but I not the obligation, to make all payments and discharge all other obligations of Lessee thereunder as the same become li due; I - (vii) In the event that Lessor shall make such payments and discharge such obligations of Lessee thereunder as the same become due, said mortgage(s) or deed(s) of trust indebtedness(es) shall not be accelerated or foreclosed, and (viii) Lessee shall, upon demand, pay to Lessor any and all amounts expended by Lessor in connection with any cure by Lessor of any such default of Lessee. 9. Initial Improvements: Subsequent Improvements and Alterations 9.1 Lessee agrees not to demolish any buildings !i or improvements on the Leased Premises, in whole or in part, unless such demolition is performed for the purpose of or ''incident to the erection of new buildings or improvements, "or the replacement and repair of existing buildings and improvements, and only with the written consent of Lessor, which consent shall not be unreasonably withheld. 9.2 Any such construction shall be done in good and workmanlike manner, in compliance with all laws, ordinances and regulations applicable thereto. 9.3 Lessee shall promptly pay for all such improvements, additions, alterations, substitutions, replacements or removals and shall discharge any and all liens filed 12 j � against the Leased Premises arising therefrom; provided, i however, that Lessee may contest any claim or lien, if Lessee shall furnish Lessor (or a court having jurisdiction over the controversy) adequate security in the amount of such claim or lien. Lessee shall procure and pay for all required permits, certificates and licenses in connection with such work, and Lessor shall cooperate to the extent j necessary in their procurement; provided, however, that nothing contained herein shall be deemed a waiver of Lessor's discretion or prerogative with respect to the issuance of i any such permit, certificate or license. i 9.4 Subject to the provisions of Section 15, !I ! all improvements (except trees and landscaping) constructed upon the Leased Premises shall be the property of Lessee. 9.5 Nothing contained in this Lease shall be 1 construed as constituting the consent or request of Lessor, expressed or implied, to any contractor, subcontractor, laborer or materialman for the performance of any labor or services or the furnishing of any materials for any improvement of the leased premises or any alteration, addition or repair thereof. Any contract entered into by Lessee for such labor, services or materials shall provide for the waiver of any claims against Lessor or the Leased Premises which may arise as a result of such contract, unless otherwise agreed to by Lessor or unless otherwise provided for herein. Lessor shall be permitted to erect any and all reasonable signs and notices necessary to give notice of its intention to not be liable for the furnishing of any such labor or materials. 10. Maintenance and Repair 10.1 Lessee shall, at lessee's sole cost and expense, maintain the Leased Premises (including all improvements, additions, alterations, substitutions and replacements thereto, in good repair and appearance during the term of this Lease, ordinary wear and tear excepted, and Lessee shall with reasonable promptness make all structural and 13 II ii li nonstructural, and ordinary and extraordinary, repairs of it every kind and nature which may be required upon the Leased Premises during the term of this Lease. 10.2 Lessee shall maintain all portions of the leased premises and the sidewalks, culverts and passageways il within and adjoining the same in a clean and orderly condition, free of dirt, rubbish, snow, ice and unlawful obstructions. 10.3 Lessee hereby waives all right to make repairs at the expense of Lessor as may be provided now or hereafter under the laws of Colorado. 10.4 Lessor shall have no obligation to maintain or repair the Leased Premises in accordance with .. this paragraph 10, but Lessor may do so at the expense of Lessee if necessary to preserve the Leased Premises and if 'after thirty (30) days written notice of the necessary maintenance or repair such has not been performed by Lessee. 11. Insuran 11.1 Lessee will, at her expense, take out and maintain throughout the term of this Lease the insurance set forth herein below in amounts not less than those specified with companies of recognized standing which are authorized to do business in Colorado naming Lessee, Lessor, Leasehold Mortgagee and holders of mortgages and deeds of trust, if any, as insureds, as their interests may appear: (a) Public liability and property damage insurance covering liabilities, damages, costs, expenses, causes of action, suits, claims, demands and !;judgments in limits of not less than $100,000 with respect to personal injury or death to any one person; $400,000 and not less.than $400,000 for personal injury or death arising !out of one accident with an aggregate of $1,000,000; and not less than $100,000 for damage to property. (b) Fire insurance with standard extended 'coverage endorsement covering all improvements on the Leased Premises to at least eight percent (80 €) of their insurable value. 14 (c) Such employee compensation and liability insurance as may be required under the laws of the State of Colorado. (d) Such other insurance as may be required from time to time under any Federal, State, County or local law, ordinance or regulation. (e) If at any time or from time to time during the term of this Lease, higher policy limits, or any of them, become customary in the area, Lessee shall, immediately upon receipt of written request therefore from Lessor, increase said limits to the amount or amounts such higher customary amounts. 11.2 Insurance claims on the Leased Premises may be adjusted by Lessee with the approval of Lessor. 11.3 Each such insurance policy shall provide that it shall. not be cancelled without thirty (30) days prior written notice to Lessor, Lessee, Leasehold Mortgagee and holders of mortgages or deeds of trust. 11.4 The original policies or duplicates, or certificates or binders evidencing all such insurance shall be delivered to Lessor, and shall be available in Pitkin County, Colorado, for inspection during normal business hours. At least thirty (30) days prior to the expiration of each such policy, Lessee shall obtain and deliver to Lessor a renewal thereof which complies with this Lease, and in the event of Lessee's failure to do so, Lessor, Leasehold Mortgagee or any holder of a mortgage or deed of trust is authorized ,i to do so for Lessee's account with any and all costs thereof to be charged to Lessee. I 12. Casualty 12.1 In the event any or all of the improvements on the Leased Premises shall be damaged or destroyed by any cause whatsoever, whether in the course of construction or after completion thereof, Lessee shall, at Lessee's expense, repair, replace or rebuild the same at least to their condition immediately prior to such damage or destruction. Lessee 15 shall commence the work of repairing, replacing or rebuilding said improvements within six (6) months from the date of the damage or destruction and shall proceed with due diligence to complete the same in a workmanlike manner. 12.2 All insurance proceeds received as a i result of such damage or destruction shall be immediately available to and used by Lessee for repairing, rebuilding or replacing such improvements in accordance with paragraph 12.1. In the event that such insurance proceeds are inadequate for such repairs, rebuilding or replacement, Lessee shall pay the balance thereof. 12.3 Notwithstanding anything in this paragraph 12 or in this Lease to the contrary, if the improvements on the leased premises shall be damaged by fire or other casualty i to the extent of 50% or more of their value immediately preceding such damage or destruction within the last ten (10) years of the term of this Lease, any restoration of improvements shall be at the sole discretion of Lessee. In the event that Lessee elects not to restore the improvements, Lesse shall promptly remove any debris and restore the Leased Premises to a safe, clean and level condition, at which time or at any time thereafter, this Lease may be terminated by Lessor, at Lessor's option, in accordance with paragraph 1 hereof. 13. Eminent Domain 13.1 In the event that the Leased Premises are taken in whole or in part by condemnation proceedings or eminent domain, or in the event that Lessor and Lessee shall convey all or a part of said Leased Premises in avoidance or settlement of such condemnation proceedings, or threat of condemnation proceedings (any of which is referred to hereinafter as "the Taking "), Lessor and Lessee herein agree as follows: If less than 100% of the Leased Premises is taken, then from the time of taking of physical possession by the condemnor or proposed condemnor.', the basic rant shall abate in the ratio that the area of the Leased Premises taken bears to i the area of the Leased Premises before such Taking; provided, however, in the event that in excess of 258, but less than II 1008, of the Leased Premises is taken, or if the Taking shall render the remainder of the Leased Premises unsuitable for the use to which it was put prior to the Taking, then at Lessee's option this Lease shall, with the consent of Leasehold Mortgagees, terminate. Any condemnation award, sale price or amount received in settlement, shall be apportioned between Lessor and Lessee as follows: (a) First, to the Lessee - All amounts attribu -- table to the value of the improvements con- structed on the Leased Premises. (b) Next, to the Lessor - The balance of the award. Any person or party claiming by, through or under Lessor or Lessee, respectively, shall share in any award, sale proceeds or settlement only out of the portion thereof allocated to the party by, through or under which.they claim; provided, however, that.in the event there is a mortgage or deed of trust under paragraph 8.2 in which Lessor has joined so as to subject Lessor's reversionary interest 'in the fee of the Leased Premises to the lien thereof, said mortgagee or holder of such deed of trust shall share first in the portion allocated to the Lessee under (a) above, and if there then remains a balance due from the portion allocated to Lessor under (b) above. Lessee agrees to pay on demand to Lessor any portions of Lessor's award used to satisfy the balance due under any such mortgage or deed of trust. 13.2 In the event of the Taking of the whole of the Leased Premises, this Lease shall terminate and all obliga- tions of the parties hereto shall cease upon the taking of physical possession by condemnor or proposed condemnor. 13.3 If Lessee does not, pursuant to its rights hereunder, elect to terminate this Lease in the event of a partial taking or condemning of the Leased Premises, the award made to 17 Lessee for such partial taking or condemnation of the buildings or improvements shall be used for the restoration or relocation of the buildings and improvements located on the Leased Premises to the extent necessary to render the same a complete unit as nearly. as possible equal in quality and character as existed L prior to the Taking. 14. Hold Harmless Lessee agrees at all times to relieve, indemnify, protect and save harmless Lessor from any claims and liability, including reasonable expenses incurred in defending against claims and liability, for death or injury to persons or damage to property that may in tahole or in part arise from or be caused directly or indirectly by: (a) Any dangerous, hazardous, unsafe or defective condition of, or in* or on the Leased Premises, of any nature whatsoever which may exist by reason of any act, omission or neglect of or by any use or occupation of said Leased Premises by Lessee, Lessee's agents, employees, licensees,.permitees or invitees. (b) Any operation conducted upon or any use or occupation of the Leased Premises by Lessee's agents, employees, licensees, permitees or invitees under or pursuant to the provisions of this Lease, or otherwise. (c) Any act, omission or negligence of Lessee's agents, employees, licensees, permitees or invitees. - ,I (d) Any failure of Lessee, Lessee's agents, or employees, to comply with any applicable N federal, state or municipal law, ordinance, rule or regulation. 10 � 15. Default i 15.1 If at any time after the commencement it of the term of this Lease any of the events set forth below it in this paragraph 15 (hereinafter "Events of Default ") occur, Lessor may at its option terminate this Lease upon notice to Lessee as herein specified. In the event Lessor elects to terminate this Lease, Lessee or Lessee's nominee shall be entitled to receive from Lessor a quit claim deed conveying the Leased Premises to Lessee or Lessee's nominee upon surrender of the Leased Premises and payment of two (2) years basic rent as specified herein plus all costs and expenses incurred by Lessor as a result of the breach. i Lessee or Lessee's nominee shall have the right to receive I back from Lessor said quit claim deed for a period of one year from the date of the termination of this Lease. (a) Lessee shall default in the observance or performance of any covenant or provision of this Lease, other than payment of rental, and such default continues for 30 days after notice in writing of such default from Lessor; provided, however, that any such default which cannot be cured within said 30 days and which Lessee shall in good faith and with due diligence be proceeding to cure shall not constitute an Event of Default; (b) Lessee shall be delinquent in the payment of any loans secured by a mortgage or deed of trust under paragraph 8.2 or secured by any leasehold mortgage under paragraph 8.1 for more than 30 days after written notice thereof from Lessor; (c) A voluntary or involuntary petition is filed by or against Lessee under any law for the purpose of adjudication of Lessee as a bankrupt, or for the extension of time of payment, composition, arrangement, adjustment, modification, settlement MM i) it I I or of the liabilities of Lessee, or for the reorganization of Lessee under the Bank- ruptcy Act of the United States having the same general purpose, or a receiver is appointed for Lessee by reason of insolvency or alleged insol- vency of Lessee, and such adjudication, order, adjustment, decree, custody and supervision has not been vacated or set aside or appeal taken or otherwise terminated or permanently stayed within 120 days after the date of entry or beginning thereof; (d) Lessee shall abandon the Leased Premises. (e) Failure to pay rent upon terms of this lease. Provided, however, that in the event Lessee fails to pay the rent in accordance with the terms of this Lease and Lessor elects not to terminate the Lease, Lessor shall ha liable for a penalty of twenty dollars ($20.00) per day from the date such rent becomes due until it is paid. This penalty provision shall not apply to any deficiency in the amount of rent paid out of Lessee's Gross Sales of Liquor. ,I 15.2 Upon the occurrence of an Event of Default, Lessor shall have the immediate right to take possession of the Leased Premises until such time as Lessee has cured such default, is current in the payment of rent, it and has paid to Lessor any and all costs and fees incurred by Lessor as a consequence of such default; provided, however, that Lessee shall be entitled to regain possession of the Leased Premises upon termination of this Lease and full payment of all amounts due Lessor in accordance with paragraph 1 hereof. No taking of possession'sha]l be construed as an election of Lessor to terminate this Lease. 15.3 In the 20 Ij w..x%`. event that Lessor at any time terminates this Lease for any I Event of Default, in addition to any other remedy Lessor may l have, Lessor may recover from Lessee all costs and expenses, I � including a reasonable attorneys' fee, that it may incur by reason of such default. In the event Lessor takes possession '!of the Lease Premises and elects not to terminate this I' Lease, it shall be entitled to specifically enforce the pro- '' visions of this Lease relative to payment of rent and recover an amount equal to the total of all rent and taxes and other _- !i charges which Lessee would have paid periodically during the remainder of the term of this Lease or until such time as this Lease is terminated in accordance with paragraph 1 hereof. li 15.4 In the event that Lessor shall default in the observance or performance of any covenant or provision of this Lease to be performed by Lessor and such default continues for thirty (30) days after notice in writing from Lessee, Lessee shall be permitted to terminate this Lease; provided that so long as there exists outstanding and of record a leasehold mortgage against the Leased Premises, Lessee may not so terminate this Lease without the written joinder and consent of Leasehold Mortgagee; and provided further that any such default which cannot be cured within said thirty (30) days and which Lessor in good faith and with due diligence is proceeding to cure, shall not constitute a default by Lessor. 15.5 The provisions of paragraph 15.1 above relating to bankruptcy shall apply only with respect to that lessee which is the then owner of the legal title to the leasehold estate. 15.6 In the event that this Lease shall be terminated by Lessor pursuant to this paragraph 15, Lessor agrees that the holder of any leasehold mortgage upon the leasehold estate shall have the right, for a period of 30 days subsequent to said termination of this Lease, to a new lease of the Leased Premises for a term commencing at said 21 it termination of this Lease, and expiring on the same date set t forth in paragraph 1 hereof. The rent thereunder shall be at a commercially reasonable rate, but not less than the existing rental under paragraph 3 of this Lease, and all the rents, covenants, conditions and provisions of such new lease, including, but not limited to, the conditional limita- l� tions set forth in this Lease, shall be the same as the terms, conditions and provisions of this Lease. Any such holder of a leasehold mortgage shall give written notice to Lessor of such election, and within 20 days thereafter, Lessor and such holder shall execute and deliver such new lease upon the terms above set forth. At the time of the execution and delivery of such new lease, said Leasehold Mortgagee shall pay to Lessor all rent.and additional rent due Lessor under the terms of this Lease to the date of the execution and delivery of such new which remains unpaid at the time of the execution and delivery of such new lease, together with reasonable attorneys' fees and expenses in connection therewith. Said holder of such leasehold mortgage shall be given credit for any net rents and income actually collected by Lessor from the date of termination of this Lease to the date of execution of said new lease. Notwithstanding anything herein to the contrary, said new lease may provide that the Leasehold Mortgagee may assign all of its interest under said new lease, providing that the assignee shall assume all obligations hereunder. 15.7 Provided that there exists no Event of Default under this Lease, of which notice has been given to the holder of any leasehold mortgage, and so long as there exists any unpaid or undischarged leasehold mortgage, Lessor expressly agrees that it will not accept a surrender of the Leased Premises or a cancellation of this Lease from Lessee prior to the termination of the term of this Lease without the written consent of all holders of leasehold mortgages. 16. Mortgaging and Assignment by Lessor Lessor may not mortgage or assign its interest in this Lease and its reversionary interest in the fee of the Leased Premises, 22 j l unless such mortgaging or assignment is consented to by the Lessee. Any such mortgage or assignment shall always be expressly subject to this Lease, and any such mortgage by I I Lessor of its reversionary interest in the fee of the leased premises shall be taken subject and subordinate to this Lease. 17. Inspection 17.1 Lessee shall permit Lessor and its i agents to enter into and upon the Leased Premises at all reasonable times and upon reasonable notice for the purpose of inspecting the same; provided, however, that such inspection shall not unreasonably interfere with Lessee's use of the Leased Premises. i 18. Estoppel Certi 18.1 Lessee and Lessor shall, at any time and from time to time upon not less than 10 days' prior written request by the other party, execute, acknowledge and deliver to Lessor, or Lessee; as the case may be, a statement in writing certifying that this Lease is unmodified and in full force and effect (or if there have been any modifications, that the same is in full force and effect as modified and stating the modifications), and the dates to which the fixed rent and any other charges have been paid. Any such statement may be relied upon by any prospective purchaser or encumbrancer (including assignees) of the Leased Premises. 19. Short Form of Lease; Releases I � 19.1 The parties agree to execute a short form of this Lease for purposes of recording in the real property records of Pitkin County, Colorado, in the form i attached hereto. 19.2 Upon termination of this Lease as provided herein, if requested by Lessor, Lessee shall execute and deliver to Lessor an appropriate release, in form proper for recording in the real property records of Pitkin County, Colorado, of all Lessee's interest in the Leased Premises, and upon request of Lessee, Lessor will execute and deliver 23 ; f to Lessee a written cancellation and termination of this Lease and release of all claims in proper form for such I� recording. 20. Lessor's Right to Perform Lessee's Covenants i ,I If Lessee shall default in the performance of any of Lessee's covenants, obligations or agreements contained in this Lease, other than the obligation to pay rent, Lessor, after 30 days written notice to Lessee (or shorter notice if an emergency exists) of such default, may (but without any obligation so to do) perform the same for the account and at the expense of Lessee, and the amount of any payment made or other reasonable expenses, including reasonable attorneys' fees incurred by Lessor for curing such default shall be payable by Lessee to Lessor on demand. 21. Lessee's Right to Perform Lessor's Covenants. If Lessor shall default in the performance of any of its covenants, obligations or agreements contained in this Lease, Lessee, after 30 days written notice to Lessor (or shorter notice if any emergency exists), of such default, may (but without any obligation so to do) perform the same for the account and at the expense of Lessor, and the amount of any payments made or other reasonable expenses, including reasonable attorneys' fees, incurred by Lessee for such purpose shall be paid by Lessor to Lessee upon demand, or if not so paid, may be deducted from the next payments of rent becoming due. 22. Definitions. 22.1 The term "Leasehold Mortgagee" as used herein shall be deemed and construed to mean the leasehold mortgagee under any first or second mortgage or beneficiary under any first or second deed of .trust, respectively, and any successor in interest thereof under any first or second leasehold mortgage or any first or second deed of trust executed by Lessee pursuant tb hereof. 22.2 The term "leasehold mortgage" shall be deemed and construed to mean any first or second mortgage or 24. w. K !first or second deed of trust executed by Lessee covering or I encumbering the leasehold estate created by this Lease, as provided in paragraph 8.2 of this Lease. 23. Notices Wherever this Lease provides for notice from Lessor to Lessee, or from Lessee to Lessor, or ii by Lessor or Lessee to any Leasehold Mortgagee, or wherever the law requires or gives the right of serving a notice, the i same shall be served in person or by registered or certified mail, postage prepaid, addressed to LESSOR as follows: The City Manager The City of Aspen Aspen, Colorado 81611 and addressed to LESSEE as follows: i David Moss Arthur's Chinese Restaurant 132 W. Main Street Aspen, Colorado 81611 cc: Andrew V. Hecht Garfield & Hecht 601 E. Hyman Avenue Aspen, Colorado 81611 and addressed to the Leasehold Mortgagee at the address specified by the leasehold mortgagor in writing by notice addressed to the Lessor and Lessee in the manner prescribed by this paragraph 23; provided, however, that Lessor and Lessee may, at any time change "the place of receiving notice by written notice of such change of address to the other; provided further that nothing herein contained shall preclude or render inoperative service of any notice that Lessor may desire or is required at any time to give serve upon Lessee in any manner prescribed or permitted by the laws of the State of Colorado. Service by mail as herein provided shall be effective three (3) days after mailing. 24. Successors. 24.1 This Lease shall be binding upon'and shall inure to the benefit of the parties hereto, their assigns, heirs, successors and personal representatives. 24.2 The term "Lessor ", as used in this Lease shall be limited to and mean and include only the n= i owner or owners at the time in question of the fee simple or reversionary interest in the Leased Premises. The covenants and obligations of Lessor contained in this Lease or provided by law shall be binding on Lessor, its heirs, successors and assigns, only during and with respect to their respective (i successive periods of ownership. 25. No Power to Charge Reversion Except as otherwise provided herein, Lessee shall not have the power to do any act or make any contract which may create or be I _ the foundation for any lien upon the estate of Lessor in the Leased Premises. 1 . 26. Modifications This Lease may be modified only by written agreement signed by Lessor and Lessee. I i 27. De scriptive Headings The descriptive headings of this Lease are inserted for convenience in reference only and do not in any way limit or amplify the terms and provisions of this Lease. 28. Lessor's Option Upon Expiration o f Term 28.1 Upon the expiration of the seventy -five (75) year term of this Lease, Lessor, at its option, must either sell the Leased Premises to Lessee, or purchase Lessee's improvements and Lessee agrees, at Lessor's option, either to purchase the Leased Premises from Lessor or to sell the improvements to Lessor; provided, however, if this Lease is terminated by either party prior to the expiration of the Lease term, the provisions of this Section 28 shall be of no further effect. 28.2 Lessor must elect its option under 28.1 I I ' hereof by written notice given to Lessee not less than six !f (6) months prior to the date of the transaction. 28.3 Lessor and Lessee shall have 30 days following the date on which Lessor's notice of exercise was given within which to mutually agree in writing upon the price to be paid for the Leased Premises or the Lessee's improvements, whichever the case may re, and the time and manner of payments thereof.. If the parties are unable to 1) r i� agree upon the price within said 30 day period, each party �i at its own expense, shall engage a competent, independent third party appraiser. Each appraiser shall be instructed I ii to determine the fair market value of the Leased Premises i (without improvements) or of the improvements (without land) whichever the case may be. Lessor and Lessee shall exchange the written reports of their respective appraisers not later than 90 days prior to the date of the transaction. If the respective independent appraisals of the parties differ by i 2% or less, the average of the two appraisals shall be conclusive. If one party fails to submit an independent appraisal, the independent appraisal of the other party i shall be conclusive. If the respective independent appraisals of the parties differ by more than 2 %, or if neither party submits an independent appraisal, Lessor shall request the judge of the court having probate jurisdiction in the county or other political subdivision within which the Leased Premises are located to appoint an appraiser to determine the fair market value of the Leased Premises (without improve- ments) or of the improvements (without land) whichever the case may be. The court appointed appraiser's determination shall be a conclusive determination of the price to be paid for the property in question. The fees and charges of said appraiser shall be borne equally by the parties. 28.4 Unless otherwise mutually agreed by the parties, the price for the Leased Premises or -for the improve- ments, as the case may be, shall be paid by the purchasing party in cash. Concurrently with such payment, the selling party shall execute and deliver to the purchasing party a good and sufficient deed or bill of sale to the property involved. 28.5 In the event that Lessor elects-to sell the Leased Premises to Lessee and Lessee fails or refuses to make timely payment of the price agreed or determined to be payable for the Leased Premises, Lessee's improvements on the Leased Premises shall become the property of Lessor. 27 ' f 29. Remedies. 29.1 No right or remedy herein conferred H upon or reserved to Lessor or Lessee is intended to be I� exclusive of any other right or remedy herein, or by law provided, but each shall be cumulative and in addition to Ij every other right or remedy given herein or now or hereafter existing at law or in equity or by statute. 29.2 No waiver by either party of any default or breach by the other of any of iLs obligations, agreements or covenants hereunder shall be a waiver of any subsequent - default or breach of any obligation, agreement or covenant, inor shall any forbearance by Lessor to seek, a remedy for any ,,breach by lessee or any forebearance by Lessee to seek a " remedy for any breach by Lessor, be a waiver by Lessor or Lessee, as the case may be, of its rights and remedies with respect to any subsequent similar breach. 30. Attorn Fees In the event that any provision of this lease is litigated the prevailing party shall be awarded its reasonable attorneys fees. WHEREFORE, the parties hereto have set their hand and !, seal upon the.date first set forth in this Lease. LESSOR: THE CITY OF ASPEN, COLORADO sy / c .i \ ✓ / �l Title LES E: STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foreg iq ngj'nstrument was ackyo d�eforre me thj�� of � , 1981 b WITNESS my hand and-official eal. my commission expires: ��3 P ub lic M. n is STATE OF COLORADO ) COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this 14th day of May 1981, by X:�A\j,L> M05`, I i as Lessee. Witness my hand and official seal My commission expires: 1 -7 -84 Notary Pubic 1 RESTAURANT LEASE AGREEMENT THIS RESTAURANT LEASE AGREEMENT (hereinafter referred to as this "Lease") dated this 1�� day of �� LU/� 1980, by and between DAVID MOSS, whose address is P.O. Box 907, Aspen, Colorado 81612, (hereinafter referred to as "Lessor ") and ARTHUR'S RESTAURANT, INC., a Colorado corporation, with the address of 132 West Main Street, Aspen, Colorado 81611, (hereinafter referred to as "Lessee "). W I T N E S S E T H: WHEREAS, Lessor has entered into a lease agreement with the City of Aspen covering the real property described as Lots K, L, M, N and the West one -half (W?) of O, Block 58, City and Townsite of Aspen, Pitkin County, Colorado (hereinafter referred to as the "Real Property "); and WHEREAS, Lessor owns the improvements located on the Real Property (hereinafter referred to as the "Premises "), with the street address of 132 West Main Street, Aspen, Colorado; and WHEREAS, Lessor is desirous of leasing the Premises to Lessee subject to the terms and conditions contained herein, and Lessee is desirous of leasing the Premises from Lessor subject to said terms and conditions; NOW, THEREFORE in consideration of the foregoing premises and the covenants, terms and conditions herein contained, Lessor and Lessee hereby agree as follows: 1. Term Lessor hereby leases the Premises to Lessee and Lessee hereby agrees to lease the Premises from Lessor, for the term of five (5) years to commence on May 15, 1981. 2. Rent Lessee shall pay Lessor on the fifteenth day of each month during the term hereof an amount equal to the greater of $3,000.00 or: (1) Twenty percent (208) of the amount of the Gross Sales of Lessee derived from Lessee's sales of liquor on the Premises. Each such payment shall be accompanied by a statement certified by Lessee showing in reasonable detail the computation of Gross Sales. As used herein, the term "Gross Sales" shall mean the total amount charged by Lessee in connection with any and all sales of liquor made or rendered on, in, from, through, or in connection with the Premises, whether or not such amounts shall be received in cash or on credit or by property of other value, paid or unpaid, collected or uncollected, less the amount of any sales or excise tax imposed by any governmental entity which is both added to the selling price and paid to the taxing entity by Lessee. 3. Lessee's Records and Books of Account For the purpose of ascertaining the amounts payable to Lessor under this Lease, Lessee agrees to prepare and keep for a period of not less than two (2) years following the end of each calendar year adequate records which shall show the daily receipts from all sales of liquor on the Premises, by Lessee and any other persons conducting any business on the Premises. Lessee shall record at the time of sale all receipts from sales or other transactions whether for cash or credit, in a cash register or registers having a cumulative total which shall be sealed in a manner approved by Lessor and which shall have such other features as Lessor may designate. Lessee further agrees to keep for at least two (2) years following the end of each calendar year all pertinent original sales records or such other records as Lessor may agree to in writing. As used herein, the phrase "pertinent original sales records" shall include: (a) all cash register tapes; (b) such other sales records, if any, which would normally be examined by an independent accountant pursuant to accepted auditing standards in performing an audit of Lessee's sales; and (c) copies of any and all sales tax returns and use tax returns, if any, filed by Lessee with any governmental authority. During the term of this Lease and any renewal thereof, all of the records provided for hereunder shall be kept on the Premises. Following the expiration or earlier termination of this Lease, such record shall be kept at a location satisfactory to Lessor. Lessor shall at all times during the term hereof and for a period of two (2) years following the expiration or earlier termination of this Lease have the right to examine all of Lessee's records and books of account in order to verify Lessee's gross sales made from or upon the Premises and Lessee's payment of govern- mental taxes, assessments and charges. 2 rsF�. Lessee shall immediately notify Lessor of the result of any audit of any sales or use tax returns by any governmental agency, and shall submit to Lessor any written report covering any such audit. If Lessee shall obtain an audit from an independent account, Lessee shall immediately notify Lessor of the result of any such audit with respect to Gross Sales, and shall submit to Lessor a statement certified by such accountant wits respect to Gross Sales on the Premises. Lessor may also, at its option, cause to be made a complete audit of Lessee's business affairs and records relating to the Premises for the period covered by any statement to be submitted by Lessee pursuant to this Lease. Such audit shall be made after at least five (5) days' prior notice to Lessee. If such audit shall disclose a liability for rental to the extent of three percent (3B) or more, in excess of the rentals theretofore computed and paid by Lessee for the period covered by the audit, then Lessee shall promptly pay Lessor the cost of said audit in addition to the deficiency, which deficiency shall be payable in any event. In addition, upon the third occasion of such a liability to the extent of three percent (3 %) or more, Lessor shall have the further remedy of terminating this Lease upon fifteen (15) days' notice to Lessee. Any information obtained by Lessor as a result of such audit shall be held in strict confidence by Lessor; provided, however, that Lessor may make such information available (on a confidential basis) to any prospective lender to Lessor on or purchaser from Lessor of the Premises or use such information in connection with any dispute involving Lessor arising out of Lessee's occupancy of the Premises. 4. Conduct of Business The Premises shall be occupied and used by Lessee solely for the conduct of a restaurant business and any sale of food and non -food goods and services related to or connected with the conduct of a restaurant. Throughout the term of this Lease, Lessee shall diligently conduct and pursue the business of a restaurant without interruption in the Premises during normal business hours for similar restaurants in the area. Lessee's failure to so conduct such business for more 3 than fifteen (15) days in any year during the term hereof shall constitute an Event of Default as defined in Section 6 hereof, and shall entitle Lessor to any or all of the remedies provided in this Lease upon the occurrence of any Event of Default in addition to any other remedy available to Lessor; provided, however, that no interruption of such business by reason of strikes, lockouts, fire or other damage or similar causes beyond Lessee's reasonable control shall be included within said aggregate fifteen (15) day period. If Lessor shall terminate this Lease due to an Event of Default as hereinafter defined, or if at any time during the term of this Lease Lessee shall cease to conduct the business of a restaurant in the Premises, then and in that event, the rent due Lessor hereunder from and after the time of the breach causing such termination and of such cessation of business, shall be deemed to be an amount equal to the average monthly amount which shall have accrued to Lessor during the eighteen (18) months immediately preceding such termination or cessation of business; provided, however, that if such termination or cessation shall occur within the first eighteen (18) months of the term hereof, the rent due Lessor thereafter shall be deemed to be an amount equal to the average monthly amount which shall have accrued to Lessor from the commencement of the term of this Lease. 5. Maintenance and Repair, Taxes Lessee shall, at its sole cost and expense, maintain the Premises (including all additions, alterations, substitutions and replacements thereto) in good repair and appearance during the term of this Lease and Lessee shall with reasonable promptness make all structural and nonstructural, and ordinary and extraordinary repairs of every kind and nature which may be required upon the Premises during the term of this Lease. Lessee shall maintain all portions of the Premises and the sidewalks, culverts and passageways within and adjoining the same in a clear and orderly condition, free of dirt, rubbish, snow, ice and unlawful obstructions. Lessee hereby waives all right to make repairs at the expense of Lessor as may be provided now or hereafter, under the laws of Colorado. Lessor shall have no obligation to maintain or repair the Premises, but Lessor may do so at Lessee's expense. 4 l During the term of this Lease, Lessee shall pay, as they become due and payable and before they become delinquent, all taxes, assessments and other public charges of any kind and des- cription levied or presently existing upon or now or hereafter assessed against the Premises or upon any of the improvements thereon, including those arising by reason of the occupancy, use or possession of the Premises by Lessee (hereinafter collectively referred to as "Taxes "); provided, however that with respect to assessments levied for public improvements which may be paid in installments, Lessee shall be obligated to pay only those install- ments due during the term of this Lease, and Lessee shall not be liable for the payment of Taxes of which Lessee neither has nor should have knowledge until thirty (30) days from the day written notice is given Lessee by Lessor of the nature and amount of the hitherto unknown tax. In the event that Lessee shall desire to contest in good faith any tax, Lessee may file in its name or in the name of Lessor as may be required all such protests or other instruments and institute and prosecute proceedings for the purpose of such contest, but shall, if required by Lessor, furnish to Lessor reasonable security against any loss by reason of such contest. If at any time during the term of this Lease, under the laws of the State of Colorado or any political subdivision thereof in which the Leased Premises are situated, a new tax or excise on rents is levied or assessed on rents from land and /or buildings, Lessee shall pay and discharge such tax or excise on rents but only to the extent of the amount thereof which is lawfully assessed or imposed upon Lessor and which was so assessed or imposed as a direct result of Lessor's ownership of the Premises or of this Lease or of the rentals accruing under this Lease. Nothing herein shall be construed to require Lessee to pay any estate, inheritance, succession, income or similar tax of Lessor. Lessor hereby author- izes and empowers Lessee to act as attorney -in -fact for Lessor, at Lessee's sole expense, in the institution of proceedings to secure a reduction in the real estate taxes assessed against the Premises for each and any year or portion thereof included in the term of this Lease. 5 Lessee shall permit Lessor and his agents to enter into or upon the Premises or any part thereof at all reasonable times and upon reasonable notice for the purpose of inspecting the same or to make such repairs or alterations therein as may be necessary for the safety and preservation thereof in the event Lessee fails to do so; provided, however, that this provision shall not be deemed to impose any obligations on Lessor to make any repairs or alterations. Lessor's agents shall have the right to show the Premises to persons wishing to purchase or lease the same. On and after the sixth (6) month prior to the expiration of the term hereby granted, Lessor or Lessor's agents shall have the right to place "To Let" or "For Sale" notices on the front of the Premises or any part thereof, and Lessee hereby agrees to permit the same to remain thereon without hindrance or molestation. 6. Events of Default If at any time after the commence- ment of the term of this Lease any of the events set forth below (hereinafter referred to as "Events of Default ") occur, Lessor may at his option terminate this Lease upon notice to Lessee as herein specified whereupon this Lease shall terminate. Upon receipt of such notice, Lessee shall surrender the Premises to Lessor. (1) Lessee shall default in the observance or performance of any covenant or provision of this Lease, other than payment of rental, and such default continues for fifteen (15) days after notice in writing of such default from Lessor. (2) Lessee shall abandon the Premises (3) Lessee shall be delinquent in any payment due Lessor hereunder for more than ten (10) days. Upon the occurrence of an Event of Default, Lessor shall have the immediate right of re -entry and may remove all persons and property from the Premises; such property may be removed and stored at Lessee's expense. In the event that Lessor takes possession pursuant to the terms of this Lease or as otherwise provided by law, Lessor may either terminate this Lease or relet the Premises, or any portion thereof, for such term or terms (including terms beyond the term of this Lease) and at such rental or rentals as are commercially reasonable. No such re -entry or taking possession of 9 the Premises by Lessor shall be construed as an election on his part to terminate this Lease unless a written notice of such intention be given to Lessee. Upon such reletting: (1) Lessee shall be immediately liable to pay to Lessor the amount, if any, by which the rent (up to but not beyond the term of this Lease) computed in accordance with Section 2 hereof exceeds the rental obtained in such reletting for the period of such reletting. (2) All rents received by Lessor from such reletting shall be applied: first, to the payment of any indebtedness, other than rent due hereunder from Lessee to Lessor; second, to the payment of any and all reasonable costs and expenses of such re -entry and reletting and of any alterations and repair; third, to the payment of rent due and unpaid hereunder to the date of such relet- ting, and the balance, if any, shall be held by Lessor and applied in payment of future rent as the same may become due and payable hereunder. In the event that Lessor at any time terminates this Lease for any Event of Default, in addition to any other remedy Lessor may have, Lessor may recover from Lessee all damages Lessor may incur by reason of such default, including the reasonable cost of recovering and repairing the Premises and improvements thereon and the amount by which the total of all rent, taxes, insurance and other charges which Lessee would have paid periodically during the remainder of the term of this Lease exceeds the reasonable rental value of the Premises and improvements thereon for the period commencing at the date of termination hereof and ending on the date set forth in Section 1 hereof. 7. Indemnification Lessee agrees at all times to relieve,indemnify, protect and save harmless Lessor from any claims and liability including reasonable expenses incurred in defending against claims and liability, for death or injury to persons or damage to property that may in whole or in part arise from or be caused directly or indirectly by: (1) Any dangerous, hazardous, unsafe or defective condition of, or in or on the Premises, of any nature whatsoever 7 which may exist by reason of any act, omission or neglect of or by any use or occupation of the Premises by Lessee, its agents, employees, licensees, permitees or invitees. (2) Any operation conducted upon or any use or occupation of the Premises by Lessee, its agents, employees, licen- sees, permitees or invitees under or pursuant to the provisions of this Lease, or otherwise. (3) Any act, omission or negligence of Lessee, its agents, employees, licensees, permitees or invitees. (4) Any failure of Lessee, its agents or employees, to comply with any, applicable federal, state or municipal law, ordinance, rule or regulation. 8. Insurance. Lessee will, at its expense, take out and maintain throughout the term of this Lease the insurance set forth herein below, in amounts not less than those specified, with companies of recognized standing which are authorized to do business in Colorado naming Lessee and Lessor as insureds, as their interests may appear: (1) Public liability and property damage insurance covering liabilities, damages, costs, expenses, causes of action, suits, claims, demands and judgments in limits of not less than $100,000 with respect to personal injury or death to any one person; $100,000 and not less than $300,000 for personal injury or,death arising out of one accident; and not less than $100,000 for damage to property. (2) Fire insurance with standard extended coverage endorsement covering on the Premises to at least eighty percent (80 %) of their insurable value. (3) Such employee compensation and liability insur- ance as may be required under the laws of the State of Colorado; and (4) Such other insurance as may be required from time to time under any federal, state, county or local law, ordinance or regulation. If at any time or from time to time during the term of this Lease, higher policy limits, or any of them, becone customary M in the area, Lessee shall, immediately upon receipt of written request therefore from Lessor, increase said limits to such higher customary amount or amounts. Insurance claims may be adjusted by Lessee with the approval of Lessor. Each such insurance policy shall provide that it shall not be cancelled without ten (10) days' prior written notice to Lessor and Lessee. The original policies or duplicates, or certificates or binders evidencing all such insurance shall be delivered to Lessor upon the execution of this Lease. At least thirty (30) days prior to the expiration of each such policy, Lessee shall obtain and deliver to Lessor a renewal thereof which complies with this Lease, and in the event of Lessee's failure to do so, Lessor is authorized to do so for Lessee's account with any and all costs thereof to be charged to Lessee. In the event any or all of the Premises shall be damaged or destroyed by any cause whatsoever, Lessee shall, at its expense, repair, replace or rebuild the same at least to their condition immediately prior to such damage or destruction. Lessee shall commence the work of repairing, replacing or rebuilding said improve- ments within six (6)months from the date of the damage or des- truction and shall proceed with due diligence to complete the same in a workmanlike manner. All insurance proceeds received as a result of such damage or destruction shall be immediately available to and used by Lessee for repairing, rebuilding or replacing such improvements. In the event that such insurance proceeds are inadequate for such repairs, rebuilding or replacement, Lessee shall pay the balance thereof. Notwithstanding anything in this Lease to the contrary, if on the Premises shall be damaged by fire or other casualty to the extent of 50% or more of their value immediately preceding such damage or destruction, any restoration thereof shall be at the sole discretion of Lessee. If in this event, Lessee should elect not to restore the Premises, all insurance proceeds shall be the property of Lessor. 9 :�.�.. a. ... . r... .r. �e .. r. •, + y�.n a. M.e'. -. •.'.. r Y F .+! Sr .:.1�. 9. Condemnation In the event that the Premises or the Real Property are taken in whole or in part by condemnation proceedings or eminent domain, or in the event that Lessor and Lessee or the City of Aspen shall convey all or a part of the Premises in the avoidance or settlement of such condemnation proceedings, or threat of condemnation proceedings (any of which is hereinafter referred to as "the Taking "), and if the Taking shall render the remainder of the Premises unsuitable for the use to which it was put prior to the Taking, then at Lessee's option this Lease shall terminate. Any condemnation award, sale price or amount received in settlement with respect to the Premises, shall be the property of Lessor. In the event of the taking of the whole of the Premises, this Lease shall terminate and all obligations of the parties hereto shall cease upon the taking of physical possession by the condemnor or proposed condemnor. 10. Assignment Lessee shall not assign or sublet the Premises either in whole or in part except with prior written consent of Lessor. 11. Utilities Lessee shall pay all charges for water, electricity, gas, sewer, telephone and other utility services furnished to the Premises. 12. Cure If Lessee shall default in the performance of any of its covenants, obligations or agreements contained in this Lease, other than the obligation to pay rent, Lessor may (but without any obligation to do so) perform the same for the account and at the expense of Lessee, and the amount of any payment made or other reasonable expenses, including reasonable attorneys' fees, incurred by Lessor for curing such default shall be payable by Lessee to Lessor on demand. 13. Signs Lessee shall have the privilege of placing on or in the Premises such signs as pertain to its business, at Lessee's sole cost and expense, provided that Lessee shall be solely responsible for and shall repair any damage caused thereby to the Premises and provided further that Lessee shall comply with all laws, rules, and regulations of all governmental agencies 10 having jurisdiction thereof and pay all permit and license fees therefor. Lessor or Lessor's representatives shall have the right to remove any such signs in the event that such removal becomes necessary in order to make repairs, alterations, or improvements in or about the Premises or any part thereof, provided, however, that the same be removed and replaced at Lessor's expense when said repairs, alterations, or improvements shall be completed but this shall not be deemed to impose any obligation on Lessor's to remove any such signs or make any repairs, alterations, or improvements in or about said premises. 14. Redemption Lessee waives all right to redeem under any applicable statute. 15. Notices Any notice to be given by either party to the other pursuant to the provisions of this Lease shall be writing and shall be given by registered mail, return receipt requested, addressed to the party for whom it is intended at the address stated above or at such other address as it may have designated to the other party in writing in the manner set forth above. 16. Mechanic's Liens The obligation of Lessee to pay rent hereunder and perform all of the other covenants and agreements hereunder on part of Lessee to be performed shall in nowise be affected, impaired, or excused if any mechanic's, laborer's or materialman's lien shall at any time be filed against the Premises or any part thereof, or any encumbrance, charge, mortgage, conditional bill of sale, title retention, or security agreement be filed against the Premises or any part thereof, by reason of any work, labor or services, or materials or equipment furnished to or for Lessee within thirty (30) days after notice of the filing thereof will cause the same to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction, or otherwise. If Lessee shall fail to cause such encumbrance, charge, etc., to be discharged within the period aforesaid then, in addition to any other right or remedy, Lessor may, but shall not be obligated to, discharge the same whether by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings, and in any such event, Lessor shall be entitled, if 11 Lessor so elects, to compel the prosecution of an action for the foreclosure of such lien by the lienor and to pay the amount of the judgment in favor of the lienor with interest, costs, and allowances. Any amounts so paid by Lessor and all costs and expenses incurred by Lessor in connection therewith, together with interest thereon at the rate of ten percent (10 %) per annum from the respective dates of Lessor's making of the payment or incurring of the costs and expense, shall constitute additional rent payable by Lessee under this Lease and shall be paid to Lessor by Lessee on demand. Nothing herein shall obligate Lessee to pay or discharge any lien created by Lessor. Nothing in this Lease contained shall be deemed or con- strued in any way as constituting the consent or request of Lessor, express or implied by inference or otherwise, to any contractor, subcontractor, laborer, or materialman for the performance of any labor or the furnishing of any materials for any specific improvement, alteration to or repair of the Premises or any part thereof, nor as giving Lessee any right, power, or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any lien against the Premises or any part thereof. 17. Compliance with Lease Lessee, during the term of this Lease and of any renewal or extension thereof, agrees not to use or keep or allow the Premises or any portion thereof to be used or occupied for any unlawful purpose or in violation of any certifi- cate of occupancy or certificate of compliance covering or affecting the use of the Premises or any portion thereof, and will not suffer any act to be done or any condition to exist on the Premises or any portion thereof, or any article to be brought thereon, which may be dangerous, unless safeguarded as required by law, or which may, in law, constitute a nuisance, public or private, or which make void or voidable any insurance then in force on the Premises. 18. Net Lease. This is a "net" lease and Lessor shall not be required to provide any services or do any act in connection with the Premises except as specifically provided herein, and the rent, additional rent, and other charges reserved hereunder shall IWA be paid to Lessor without any claim on the part of Lessee for diminuation or abatement and the fact that Lessee's use and occupancy of the Premises may be disturbed or prevented from any cause whatsoever except Lessor's willful actions shall not in any way suspend, abate, or reduce the rental to be paid hereunder. 19. Successors Subject to the provisions of Section 10 hereof, this Lease shall be binding upon and shall inure to the benefit of the parties hereto, their assigns, heirs, successors and personal representatives. 20. Liens Except as otherwise provided herein, Lessee shall not have the power to do any act or make any contract which may create or be the foundation for any lien upon the estate of Lessor in the Premises. 21. Amendments This Lease may be modified only by written agreement signed by Lessor and Lessee. 22. Waiver No waiver by either party of any default or breach by the other of any of its obligations, agreements or covenants hereunder shall be a waiver of any subsequent default or breach of any obligation agreement or covenant, nor shall any forbearance by Lessor to seek a remedy for any breach by Lessee by a waiver by Lessor of his rights and remedies with respect to any subsequent similar breach. WHEREFORE, the parties hereto have signed this Lease the day and year first above written. LESSEE: ARTHUR "S RESTAUR IT, INC. By President t'l