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HomeMy WebLinkAboutresolution.council.036-11 • RESOLUTION NO. SP Series of 2011 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A LEASE AGREEMENT, BETWEEN THE CITY OF ASPEN AND FIERCELY LOCAL, AND AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a lease agreement for the 2618 square feet of space on the first floor of the Wheeler Opera House currently occupied by Bentley's Restaurant with a street address of 221 S. Mill Street, between the City of Aspen and Fiercely Local, a true and accurate copy of which is attached hereto as Exhibit "A "; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves that lease agreement, between the City of Aspen and Fiercely Local, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the Mayor or City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the�'f day of . Michael C. Ire and, ay I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day heteinabove stated. i / . tat L .. i / Kathryn . • :City Clerk TLN -5 /16201134304- G: \Tara\FILES M- Z\RESOS \Fiercely Local.docxx Wheeler Restaurant Space Lease Page 1 LEASE AGREEMENT WHEELER OPERA HOUSE WHEELER BAR AND GRILL THIS LEASE AGREEMENT is made and entered into this 27 day of May, 2011 by and between the City of Aspen, 130 South Galena Street, Aspen, Colorado 81611 ( "Landlord ") and Fiercely Local LLC ( "Tenant "). WITNESSETH: WHEREAS, Landlord is the owner of the real property and all of the improvements thereon, known as the Wheeler Opera House, 328 East Hyman Avenue, Aspen, Colorado 81611; and, WHEREAS, the parties hereto desire to enter into a Lease Agreement for a certain portion of the Wheeler Opera House as more fully described herein. NOW, THEREFORE, for and in consideration of the payments to be made hereunder, and in further consideration of the terms, conditions, covenants and mutual promises contained herein, the parties hereto agree as follows: 1. Lease of Premises. Landlord does hereby rent to Tenant the following described premises ( "Leased Premises ") subject to the covenants and conditions hereinafter contained, to wit: That portion of the first floor of the Wheeler Opera House currently occupied by the Bentley's restaurant consisting of 2618 net leasable square feet in the Wheeler Opera House, all as more fully described and depicted in the attached Exhibit A. In addition, the Leased Premises shall include the Additional Leased Premises described in paragraph 44, below for the term, at the rents, and upon the conditions and covenants hereinafter set forth. Taking possession of the Leased Premises by Tenant shall constitute acknowledgment that such premises are in good condition and neither the Tenant nor Landlord shall be required to make any alterations thereto, except as set forth herein, unless agreed to in advance and in writing by Landlord. 2. Term. Unless sooner terminated, as provided herein, the initial term of this Lease Agreement shall be for a period of five (5) years (the "Initial Term ") renewable, with one hundred twenty days notice, at the Tenant's option, for an additional five (5) years. The Initial Term shall commence at 12:00 noon on December 1, 2011, and shall expire at 12:00 noon on December 31, 2016. (Should the Leased Premises be fully ready and allow operations to fully commence prior to December 1, 2011, a rider may be agreed to by the parties hereto and rider attached to this Lease Agreement for a separate mutually agreeable financial arrangement prior to commencement of the Initial Term of this Lease Agreement.) Rent shall commence one Page 1 of 22 Wheeler Restaurant Space Lease Page 2 month after the Leased Premises are made available to Tenant for occupancy. A Lease Year shall be a calendar year starting on the commencement date of the Initial Term through 12:00 noon of the following calendar year and each calendar year thereafter. Tenant's occupancy of the Leased Premises shall be limited by paragraph 5, below. All terms of this lease apply to the second term. 3. Rent. Tenant agrees to pay Landlord annual rental amounts consisting of a Base Rent amount and a Percentage of Gross Sales amount. a. The Base Rent for the initial Lease Year shall be $117,810.00 ($45 /square foot of leasable space.) The Base Rent shall be payable in monthly payments of $9,817.50. After the initial Lease Year and every Lease Year thereafter, including any Lease Years after the Initial Term, the Base Rent shall be adjusted upward, based upon increases (if any) in the cost of living during the preceding Lease Year using the "Price Index ", all as more fully described in Exhibit B appended hereto and made a part hereof. The Base Rent shall be payable in equal monthly installments due on the first day of each calendar month during the term hereof without prior demand. b. The Percentage of Gross Sales for each Lease Year shall be as follows: • For the first Lease Year, 5% of Gross Sales in excess of $1,472,625.00 • For the second Lease Year, 6% of Gross Sales over that year's Breakpoint, as defined in paragraph 3.d., below. • For the third Lease Year, 7% of Gross Sales over that year's Breakpoint. • For the fourth Lease Year, and every Lease Year thereafter, including Lease Years during any renewed term, 8% of Gross Sales in excess of that year's Breakpoint. c. The term "Gross Sales" as used in this Lease Agreement shall mean the full amount of the actual sales price of all food, merchandise or services sold for cash or credit in or from the Leased Premises by the Tenant. The figure for Gross Sales shall include deposits not refunded to customers, orders of any kind received or filled at the Leased Premises, receipts from vending machines located upon the Leased Premises, and any other receipts which the Tenant ordinarily would credit to its business. Each credit or installment sale shall be treated as a sale for the full price in the month it is made, and there shall be no deductions for uncollected accounts or bad debts. The following items, if applicable, shall be deducted from Gross Sales: 1) refunds or customer discounts or complementary goods or services for marketing or not - for -profit purpose included in Gross Sales; 2) returns to shippers and manufacturers; 3) sales of trade fixtures or operating equipment; 4) sums received in settlement of claims of loss or damage of merchandise; 5) retail sales tax recorded at the time of each sale and expressly charged to the customer; 6) co- operative advertising revenues provided by suppliers; and 7) All property and sales taxes paid by Tenant. Page 2 of 22 Wheeler Restaurant Space Lease Page 3 d. The term "Breakpoint" as used in this Lease Agreement shall mean the Base Rent applicable to any Lease Year, as adjusted pursuant to paragraph 3.a. above, divided by 0.08. e. Within thirty (30) days after the end of each Lease Year, Tenant shall deliver to Landlord a written statement signed by Tenant or by some other person acceptable to Landlord, setting forth the amount of Tenant's Gross Sales for the preceding Lease Year. The accountant or other person shall certify that the Gross Sales have been computed in accordance with the definition given herein, and the statement shall be sufficiently detailed to show it was in fact prepared in accordance with such definition. If a Percentage Rent is due in any Lease Year Tenant shall pay the amount of the Percentage Rent to Landlord within thirty (30) days of delivery of the annual statement. i) During the term of the Lease, Tenant shall keep accurate records of all his operations. These records shall conform to generally accepted accounting practices, and shall include records of gross sales and of receipts and deliveries of all merchandise. Tenant shall keep all the documents relating to Tenant's operations for at least thirty -six (36) months from the end of the Lease Year to which they apply. If any audit is required, or Tenant and Landlord disagree about the rent, Tenant will keep its records until the audit is completed or the disagreement is settled. ii) At any reasonable time, and following at least twenty -four (24) hours notice in writing to Tenant, Landlord or Landlord's authorized representative may audit any of Tenant's records of Gross Sales. If, when Landlord audits the records for a Lease Year based on normal accounting procedures, it finds that the Tenant has understated its Gross Sales for the Lease Year by one percent (1 %) or more, Tenant shall be required to pay for the audit, and shall promptly deliver to Landlord the difference Tenant owes it, plus interest on such difference at the rate of eighteen percent (18 %) per annum from the first day of the current Lease Year to the date such difference is paid. If such audit discloses that Tenant has understated his Gross Sales for that Lease Year by one percent (1 %) or more, Landlord shall be permitted to treat such event as a material default hereunder. In this matter, the report of Landlord's accountant shall be binding and conclusive. f. In addition to the accounting to be provided to Landlord described above, Tenant shall provide Landlord with (i) copies of the quarterly sales and withholding tax statements it provides to the appropriate authorities, with a notation thereon by Tenant's accountants reflecting the portion of the income reflected on those returns that is derived from Gross Sales; and, (ii) statements prepared by Tenant's accountants reflecting the Gross Sales and sales taxes paid by Tenant for each calendar quarter. 4. Equipment, Fixtures and Finishes Provided by Landlord and Tenant. Page 3 of 22 Wheeler Restaurant Space Lease Page 4 a. The parties hereto acknowledge that certain remodeling of the Leased Premises is contemplated prior to and during the term of this Lease Agreement. The parties hereto agree that the basic shell of the Leased Premises will be designed and built through a process defined as an Integrated Project Delivery. The scope of this remodeling shall be as defined below. Tenant acknowledges that it is a member of the Integrated Project Delivery (IPD) design team. The location of improvements listed in this paragraph, as well as the overall design of the Leased Premises shall be determined by the IPD team. All members shall reach consensus of these items before completed Implementation Documents are finalized and submitted for a building permit. At a date certain, before Januaryl, 2012, the Leased Premises will be turned over to the Tenant for the Tenant to install finishes and furnishings as listed below. On a date mutually agreed to by the parties, but no later than two months following the commencement of the term of this Lease Agreement, Tenant shall be given an opportunity to inspect the Leased Premises to assure itself that the work and materials to be constructed or installed for the restroom remodeling are satisfactory. Tenant shall prepare a punch list of all items that require further work and shall present the punch list to Landlord. Landlord shall take all reasonable steps to correct or complete all items on the punch list within a reasonable period of time. Unless an item on the punch list shall materially affect the Tenant's intended use of the Leased Premises, the scheduled commencement of the Lease Agreement term shall not be postponed. b. The parties hereby agree that the cost of the shell construction shall be paid by the Landlord. Those improvements shall include: • A basic, four - walled space or equivalent for tenant's operational purpose. Full utility hookups including: • Electrical Service, panels, and rough -ins to" code - required "j - boxes: "Rough -in shall be defined as a code - compliant wire from code - compliant breaker within a new Restaurant Electrical Panel/Disconnect to a pre - defined and mutually- agreed upon quantity /size of j- boxes, pigtailed and ready for device and trim installation." • Plumbing service including water supply lines, water heater, and sanitary drains to rough - ins. rough -in of a kitchen floor sink including trim -out due to the floor sink being cast into the new floor • Mechanical Equipment to furnish heating, cooling, and ventilation to rough -ins: All structural work, subfloor (including subfloor underlayment for acoustic purposes) , Level 3drywall finish. Locations /layout of all of the rough -ins will require coordination and walk- thru/approval PRIOR to the coverup of drywall to ensure that there are no conflicts in regards to locations of j -boxes and other roughed in mechanical. • ANSI compliant restrooms with basic fxtures("(1) ADA- compliant Lavatory fixture per bathroom, (1) ADA - compliant, conventional toilet per bathroom, (1) Urinal in Men's room, and ADA - required grab bars and Pipe -wraps and rough -ins as described above. Paper towel dispensers, soap dispensers, hand -dryer units, sanitary napkin dispensers and waste receptacles, stall partition dividers and related hardware, and decorative lighting and all related in -wall rough -in and/or blocking BY TENANT Page 4 of 22 Wheeler Restaurant Space Lease Page 5 • The coordination of finishes between the landlord and tenant is imperative. Landlord agrees to confer with Tenant to ensure the specifications of improvements by Landlord are consistent with Tenant's needs • ANSI compliant lift. Location and Specification TBD by IPD team — Installation will be completed by the Landlord • Fire suppression system • Any other improvements required to make basic four -walled space code compliant. • Kitchen exhaust system. Locations, Sizing and Air - handling capability TBD by Wheeler. Upgrade options such as specialty lighting within hood unit NOT INCLUDED • Existing Grease trap system • HVAC system • Exterior awnings Exclusions • DATA, Phone, AV System • Syrup /mixer/beer runs to the bar excluded • Custom sprinkler head trims; Additional sprinkler heads and/or service upgrades required to address current layout/design changes c. The parties agree that the Tenant shall supply: • Kitchen and bar equipment • All interior finishes including flooring and wall treatments • Syrup /mixer/ beer runs to the bar • POS system • Custom work • Anything else necessary to operate the restaurant effectively and efficiently 5. Occupancy of the Leased Premises. Tenant shall be entitled to occupy the Leased Premises throughout the term of the Lease Agreement; provided, however, that Tenant uses the Leased Premises as set forth in Paragraph 6 below, and all other terms and conditions of this Lease Agreement. The Tenant and Landlord and Wheeler staff agree to meet once every quarter to discuss Tenant's performance and any other issues relating to the terms and conditions of this Lease Agreement 6. Permitted Uses and Required Performance Standards. Tenant shall use and occupy the Leased Premises for a restaurant serving alcoholic beverages, including commercial kitchen for catering purposes, and associated storage and for no other purpose without Landlord's written consent. 7. Prohibited Uses. Tenant shall not use, occupy, or permit the Leased Premises or any part thereof to be used or occupied for any unlawful or illegal business, use, or purposes deemed by Landlord to be hazardous, nor in such manner as to constitute a nuisance of any kind, nor for any purpose or in any way in violation of any present or future laws, rules, requirements, orders, directions, ordinances or regulations of the United States of America, State of Colorado, County Pitkin, City of Aspen, or other municipal, governmental, or lawful authority Page 5 of 22 Wheeler Restaurant Space Lease Page 6 whatsoever. Tenant shall not do or permit anything to be done in or about the Leased Premises or bring or keep anything therein which will in any way increase the rate of fire insurance upon the Building wherein the Premises are situated. Tenant shall, at its sole cost and expense, comply with any and all requirements pertaining to the Leased Premises of any insurance company necessary for the maintenance of reasonable fire and public liability insurance covering the Leased Premises. Tenant shall promptly comply with all laws, ordinances, orders, and regulations affecting the Leased Premises and the cleanliness, safety, and use of the same, including installation of additional facilities as required for the conduct and continuance of Tenant's business on the Leased Premises. No auction for fire or bankruptcy sales may be conducted on the Leased Premises without Landlord's consent. 8. Service to Patrons/No Discrimination. a. The parties hereto acknowledge that the Aspen City Council selected Tenant from amongst a group of entities desiring to rent the Leased Premises, in part, because of their representations that they would operate the proposed restaurant so as to maintain during the term of the Lease Agreement a menu that was affordable to its customers. Accordingly, Tenant hereby agrees to operate its restaurant so that its menu is affordable. In order to maintain an affordable menu, Tenant agrees to an initial review before opening, and an annual review thereafter of predetermined menu items compared to equivalent menu items from a representative sample of five (5) other restaurants operating in the City of Aspen. This review shall be performed by one representative of the Tenant and three representatives of the City of Aspen: one from the Wheeler, one from Capital Asset, and one from the Finance Department. The original menu and a statement of operating hours for the restaurant shall be added as an addendum to this Lease Agreement before occupancy of the Leased Premises. Landlord understands that incremental inflationary menu price increases are part of the normal course of business and will consent to menu price adjustments during the term of this Lease Agreement that reflect incremental inflationary prices. b. Tenant shall not discriminate against any employee or applicant for employment because of race, religion, color, creed, ancestry, sex, age, sexual orientation or national origin. Tenant and Tenant's employees shall not discriminate against any person because of such person's race, religion, color, creed, ancestry, sex, age, sexual orientation or national origin by refusing to furnish such person any service or privilege offered to or enjoyed by the general public. Neither Tenant nor Tenant's employees shall publicize the services provided hereunder in any manner that would directly or inferentially reflect on the acceptability of the patrons of any person because of race, religion, color, creed, ancestry, sex, age, sexual orientation or national origin. 9. Late Charges. The Tenant hereby acknowledges that late payment by Tenant to Landlord of rent or other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which shall be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges and the late charges. Accordingly, if any bona fide installment of rent or any other sum due from Tenant hereunder shall not be received by Landlord or Landlord's designee on or before the twentieth (20th) day of each calendar month that a rent payment is due, then Tenant shall pay to Landlord Page 6 of 22 Wheeler Restaurant Space Lease Page 7 a late charge of five percent (5 %) on such overdue amount. The parties hereby agree that such a late charge will represent a fair and reasonable settlement of the cost that Landlord would incur by reason of the late payment by Tenant. Acceptance of such late charges by Landlord shall in no event constitute a waiver of Tenant's default with respect to such overdue amount, nor prevent Landlord from exercising any of the other rights and remedies granted hereunder unless the entire amount due, plus late charge, is accepted by Landlord. In addition, any sum for which the Tenant shall be obligated to the Landlord, which is not received on the due date thereof, shall bear interest at the rate of five percent (5 %) per annum from and after the due date until paid. 10. Personal and Real Property Taxes. Tenant shall be responsible to pay all real or personal property taxes assessed against the personal property used by Tenant and located on the Leased Premises or upon the leasehold interest of the Tenant of the Leased Premises. Likewise, Tenant shall be responsible for any and all sales, use, withholding and other taxes assessed against the Leased Premises for Tenant's business operation therein. 11. Fire and Casualty Insurance. The Tenant, at its own cost and expense, shall provide and keep in full force for the benefit of the Tenant and the City and the Landlord (as named or additional insureds) during the term hereof or any extension or renewal period, insurance to insure the Leased Premises against fire, normal extended coverage perils, vandalism, malicious mischief, and liability. Throughout the term of this Lease, the Tenant shall carry and maintain in effect casualty insurance covering its trade fixtures, equipment, furnishings, leasehold improvements and plate glass, which insurance shall protect against fire, normal extended coverage perils, vandalism, malicious mischief, and sprinkler malfunction. Such insurance shall provide coverage to the extent of at least one hundred percent (100 %) of the insurable replacement cost of the insured property. Both the Landlord and the Tenant waive any right of subrogation that their respective insurers may acquire against either of them. Both of these waivers shall automatically terminate at such time as either party's insurer requires that an additional premium be paid as a consequence of this waiver provision. 12. Liability Insurance. The Tenant, at its own cost and expense, shall provide and keep in full force for the benefit of the Tenant and the Landlord (as named or additional insureds) during the term hereof or any extension or renewal period, general public liability insurance for claims of liability arising out of, occasioned by or resulting from an accident or otherwise in or about the Leased Premises, for Five Hundred Thousand Dollars ($500,000.00) each occurrence with a One Million Dollar ($1,000,000.00) general aggregate combined single limit covering bodily injury, property damage, and personal injury. In addition, if Tenant serves, manufactures, or distributes alcoholic beverages on the Leased Premises, Tenant shall carry liability insurance for such activity with limits in the same amounts as stated above. The policy or policies of insurance (or binders of insurance therefore) shall be issued by a reputable company or companies authorized to do business in this State and shall name Landlord as an additional insured. Tenant shall provide evidence of such insurance coverage to Landlord prior to the commencement of the term hereof. The Tenant also agrees to and shall save, hold and keep harmless and indemnify the Landlord from and against any and all payments, expenses, costs, attorneys' fees and/or damage to property or injuries to persons occasioned wholly or in part by or resulting from any acts or omissions by the Tenant or any subtenants, assignees or successors in excess of those amounts covered by insurance. If for any reason as a result of Page 7 of 22 Wheeler Restaurant Space Lease Page 8 Tenant's activities, use, or business, it shall be impossible to obtain fire and other hazard insurance on the buildings and improvements on the Leased Premises, in an amount and with insurance companies acceptable to the Landlord, the Landlord may terminate this Lease and the term hereof, upon giving to Tenant twenty (20) days notice in writing of the Landlord's intention to do so and upon the expiration of the time provided in said notice, this Lease and the term hereof shall terminate. If by reason of the use of the Leased Premises by the Tenant or by character or manner in which the Tenant's business is carried on, Landlord's insurance rates for fire and other hazards shall be increased, the Tenant shall pay, as additional rent, the amounts by which the premiums for such insurance are increased. The Tenant and Landlord waive all rights of recovery against the other party and it's agents, employees or other representatives, for any loss, damages or injury of any nature whatsoever to property or persons for which the said party is insured. Each party shall give the other party prompt notice of any claim coming to the knowledge of any party that in any way directly or indirectly affects either party, and both parties shall have the right to participate in the defense of such claim to the extent of its interest. 13. Notice of Cancellation of Insurance Coverage. The above insurance policies shall contain clauses substantially similar to the following: a. Notwithstanding any other provision in this policy, the insurance afforded hereunder to the Landlord shall be primary as to any other insurance or reinsurance covering the Landlord and such other insurance or reinsurance shall not be required to contribute to any liability until the appropriate limit of liability afforded hereunder is exhausted. b. This policy may not be canceled or changed until forty -five (45) days after receipt by Landlord of a written notice of such cancellation or change in coverage, as endorsed by receipt of a certified letter, unless such cancellation is a result of nonpayment of premium due, in which case, this policy may not be canceled until ten (10) days after receipt by Landlord of a written notice of such cancellation, as endorsed by receipt of a certified letter. 14. Utilities. Tenant shall be responsible for any and all utility charges that are separately metered or contracted for by Tenant. Improvements by Landlord shall provide for all utilities to be separately metered. 15. Alterations. Landlord shall deliver the Leased Premises to Tenant on or before the commencement date of this Lease Agreement. No alterations, additions, or improvements shall be made, and no fixtures shall be installed in or attached to the Leased Premises that are not pre- approved in writing by Landlord. Unless otherwise provided herein, all such alterations, additions or improvements when made, installed in or attached to the said Leased Premises, shall belong to and become the property of the Landlord and shall be surrendered with the Leased Premises as part thereof upon the expiration or sooner termination of this Lease, without hindrance, molestation, or injury. Exceptions shall be as follows: Kitchen equipment except hood, bar and bar fixtures, walkin and reach -in coolers, furnishings, light fixtures, TV's and AV equipment, and artwork. Notwithstanding that they may have become an integral part of the Page 8 of 22 Wheeler Restaurant Space Lease Page 9 Leased Premises, Landlord may require Tenant to remove all or any part of such alterations, additions, improvements or fixtures at the expiration or earlier termination of this Lease, restoring the Leased Premises to the same condition existing at the beginning of the original term, ordinary wear and tear excepted. If Landlord does so require, Tenant shall repair all damages resulting from such removal and should Tenant fail to repair damages resulting from such removal, Landlord may remove the same or make such repairs for Tenant's account, and Tenant shall pay to Landlord, on demand, an amount equal to Landlord's costs incurred in such removal or repair. All work with respect to any permitted alterations, additions, or improvements shall be done at Tenant's sole expense in a good and workmanlike manner, strictly in accordance with the plans and specifications approved by Landlord. In doing said work, other Tenants of Landlord (if any) shall not be adversely affected nor unreasonably inconvenienced. Tenant shall, at its own expense, obtain all necessary building or other permits or approvals required by appropriate governmental authorities prior to beginning such work. If any mechanics' or other liens shall be created or filed against the Leased Premises by reason of labor • performed or materials furnished for the Tenant in the alteration, addition or repair to any building or improvement, the Tenant shall at the Tenant's own cost and expense, cause such lien or liens to be satisfied and discharged of record together with any Notices of Intention that may have been filed, or Tenant may provide a bond for 150% of the lien. Failure to do so shall entitle Landlord to resort to such remedies as are provided herein in the case of any default of this Lease, in addition to such as are permitted by law. Any goods, inventory or other personal property of Tenant not affixed to the Leased Premises and not removed by Tenant upon the termination of this Lease, or upon any quitting, vacating or abandonment of the Leased Premises by the Tenant, or upon the Tenant's eviction, shall be considered abandoned and Landlord shall have the right, without any notice to the Tenant, to sell or otherwise dispose of the same, at the expense of the Tenant, and shall not be accountable to the Tenant for any part of the proceeds of such sale, if any. 16. Repairs. Tenant shall take good care of the Leased Premises and shall, at the Tenant's own cost and expense, make all repairs, including painting and decorating, and shall maintain the Leased Premises in good condition and state of repair, and at the end or other expiration of the term hereof, shall deliver up the Leased Premises in good order and condition, wear and tear from reasonable use thereof, and damage by the elements not resulting from the neglect or fault of the Tenant, excepted. The Tenant shall neither encumber nor obstruct the sidewalks, driveways, yards, entrances, hallways and stairs, but shall keep and maintain the same in a clean condition, free from debris, trash, refuse. In case of destruction of, or any damage to the glass in the Leased Premises, or the destruction of, or damage of any kind whatsoever to the Leased Premises, caused by the carelessness, negligence or improper conduct on the part of the Tenant or the Tenant's agents, employees, guests, licenses, invitees, subtenants, assignees or successors, the Tenant shall repair the said damage or replace or restore any destroyed parts of the Leased Premises, as speedily as possible, at the Tenant's own cost and expense. 17. Maintenance and Repairs. Tenant shall during the term of this Lease keep in condition and repair equal to that which existed at the commencement of this lease the Leased Premises and every part thereof, including without limiting the generality of the foregoing, all plumbing fixtures, within the Leased Premises, refrigeration, electrical fixtures and lighting fixtures, additional fixtures, interior walls, wall coverings and paint, ceilings, floors and floor Page 9 of 22 Wheeler Restaurant Space Lease Page 10 coverings, windows, doors, plate glass, awnings, and entrances. Landlord shall have responsibility for the repair and maintenance of the building structure, roof, foundation and structural integrity of any additional stories above the Leased Premises, and shall, at its expense provide major repairs and required replacement to mechanical systems situated within the Leased Premises that were originally provided by the Landlord. Major repairs and replacements to systems and structure that comprised the original Leased Premises that the Landlord provided initially when construction was completed on the new facility, (other additions that need repair which were completed by lease holder will be undertaken by the lease holder at the lease holders sole cost and expense) and are required to provide the level of service and serviceability thereof and there from currently existing will be considered by the Landlord, if all standard and proper maintenance has been performed by the Tenant. At times the Landlord may agree (at its sole discretion) to cover the costs of the repairs or replacement. Absent such agreement, Landlord shall have no obligation to execute such repair or replacement, but in the event Landlord determines to effectuate such repair or replacement, Landlord shall have the sole discretion to determine the type, extent and quality of repair or replacement that shall be undertaken. 18. Damage to Premises. If the Leased Premises shall be so damaged by fire or other catastrophe (which is not caused by the fault or negligence of the Tenant or imputable to the Tenant) as to render said Leased Premises untenantable, the Tenant thereupon shall surrender the Leased Premises to the Landlord and the Lease shall be terminated as of the date of the surrender. The Tenant shall pay rent, duly apportioned, up to that time Notwithstanding the foregoing, in lieu of any termination of the Lease, Landlord may elect, at its sole option, within thirty (30) days after the event of such damage, to continue the Lease without regard of such damage, whereupon Landlord shall at its expense make the Leased Premises fit for occupancy and the rent shall be abated only for the period during which the Tenant shall be deprived of the use of said Leased Premises by reason of such damage and the repair thereof. If said Leased Premises, without the fault of the Tenant, shall be slightly damaged by fire or other catastrophe but not so as to render the same untenantable for any substantial period of time, the Landlord, after receiving notice in writing of the occurrence of the injury, shall cause the same to be repaired with reasonable promptness; and in such event, rent shall be proportionately abated, according to the loss of use, until the Leased Premises are substantially restored. 19. Sublease /Assignment. Tenant shall not assign, sublease, mortgage, pledge or otherwise hypothecate or transfer all or any part of Tenant's leasehold estate hereunder, or permit the Leased Premises or any portion thereof to be occupied by anyone without Landlord's prior written consent in each instance, which consent shall not unreasonably be withheld. In the event Tenant is a corporation or LLC, these provisions shall apply to any transfer, sale or other disposition, whether voluntary or involuntary, of more than 50% of the shares or membership interest in the corporation or LLC of Tenant or to any merger, consolidation or dissolution or any other transaction, the effect of which would be in any way to avoid or circumvent such prohibitions. Any assignment or subletting contrary to the provisions of this Paragraph shall be void and shall, at the option of the Landlord, constitute a default under the terms of this Lease. 20. Signs. The Tenant shall not place nor allow to be placed any signs of any kind whatsoever, upon, in or about the said Leased Premises or any part thereof that are visible from the exterior of the Wheeler Opera House building, except of a design and structure and in or at Page 10 of 22 Wheeler Restaurant Space Lease Page 11 such places as may be indicated and consented to by the Landlord in writing. In case the Landlord or the Landlord's agents, employees or representatives shall deem it necessary to remove any such signs in order to paint or make any repairs, alterations or improvements in or upon the Leased Premises, they shall be replaced at the Landlord's expense when the said repairs, alterations or improvements shall have been completed. Any signs permitted by the Landlord shall at all times conform to all municipal ordinances or other laws and regulations applicable thereto. 21. Compliance with Law. Tenant shall obtain and pay for all permits or licenses that may be required for the operation of the Leased Premises in accordance herewith. A copy of such permits or licenses shall be submitted to Landlord for verification of this requirement prior to occupancy. The Tenant shall promptly comply with all laws, ordinances, rules, regulations, requirements, and directives of the federal, state, and municipal governments or public authorities and of all their departments, bureaus and subdivisions, applicable to and affecting the said Leased Premises, their use and occupancy, and shall promptly comply with all orders, regulations, requirements and directives of the Board of Fire Underwriters or similar authority and of any insurance companies which have issued or are about to issue policies of insurance covering the said Leased Premises and its contents, for the prevention of fire or other casualty, damage or injury, all at Tenant's own cost and expense. Tenant shall obtain and maintain during the life of this Lease, worker's compensation insurance and employer's liability insurance for Tenant's employees in strict compliance with state laws. Certificates evidencing such insurance or approved self - insurance shall be submitted to Landlord prior to occupancy. Tenant shall not use the Leased Premises for any purposes deemed unlawful, or extra hazardous. 22. Quiet Enjoyment. So long as the Tenant is not in default hereunder during the term hereof or any renewal or extension hereof, the Landlord covenants that the Tenant shall peacefully and quietly occupy and enjoy the Leased Premises subject to the terms hereof. The undersigned warrants that it has full power and authority to execute this Lease on behalf of Landlord, and the Landlord shall be bound by, and perform all its obligations hereunder. 23. Condemnation. If the land and the Leased Premises leased herein, or of which the Leased Premises are a part, or any portion hereof, shall be taken under eminent domain or condemnation proceedings, or if suit or other action shall be instituted for the taking or condemnation thereof, or if in lieu of any formal condemnation proceedings or actions, if any, the Landlord shall grant an option to purchase and/or shall sell and convey the said Leased Premises, or any portion thereof, to the governmental or other public authority, agency, body or public utility seeking to take said land and Leased Premises or any portion thereof, then this Lease, at the option of Landlord, shall terminate and the term hereof shall end as of such date as the Landlord shall fix by notice in writing; and the Tenant shall have no claim or right to claim or be entitled to any portion of any amount which may be awarded as damages or paid as the result of such condemnation proceedings or paid as the purchase price for such option, sale or conveyance in lieu of formal condemnation proceedings; and all rights of the Tenant to damages, if any, are hereby assigned to the Landlord. The Tenant agrees to execute and deliver any instruments, at the expense of the Landlord, as may be deemed necessary or required to expedite any condemnation proceedings or to effectuate a proper transfer of title to such governmental or other public authority, agency, body, or public utility seeking to take or acquire the said lands Page 11 of 22 Wheeler Restaurant Space Lease Page 12 and Leased Premises or any portion thereof. The Tenant covenants and agrees to vacate said Leased Premises, remove all the Tenant's personal property there from and deliver up peaceable possession thereof to the Landlord or to such other party designated by the Landlord in the aforementioned notice. Failure by the Tenant to comply with any provisions in this clause shall subject the Tenant to such costs, expenses, damages and losses as the Landlord may incur by reason of the Tenant's breach hereof. 24. Landlord's Lien. Tenant hereby grants to Landlord a security interest, after the first° st) lien to Tenant's lender, in any and all of Tenant's furniture, fixtures, equipment and inventory whenever acquired, their proceeds and the proceeds of any and all insurance policies carried thereon as and for additional security for the faithful performance by Tenant of all of its obligations hereunder. Tenant agrees to execute and deliver to Landlord, upon request, such additional documents as Landlord may require to establish and perfect such security interest including, without limitation, a financing statement in form satisfactory to Landlord, which is to be executed and delivered by Tenant to Landlord. The exercise by Landlord of any rights in and to such furniture, fixtures, equipment and inventory upon default hereunder shall be governed by Article 9 of the Colorado Uniform Commercial Code, as in effect at the time of such default, but such exercise shall not preclude Landlord from exercising any or all other rights and remedies hereunder or as provided by law. 25. Inspection and Repair. The Tenant agrees that the Landlord and the Landlord's agents, employees or other representatives, shall have the right to enter into and upon the Leased Premises or any part thereof, at all reasonable hours and upon reasonable notice, for the purpose of examining the same or making such repairs or alterations therein as may be necessary for the safety and preservation thereof. Nothing in this section is intended to restrict access to the premises by an authorized City of Aspen inspector conducted pursuant to law, including, but not limited to Environmental Health employees conducting routine health inspections. This clause shall not be deemed to be a covenant by the Landlord nor be construed to create an obligation on the part of the Landlord to make such inspection or repairs. Tenant expressly waives and releases any claim, demand, or cause of action it might have against the Landlord by reason of any inconvenience, annoyance to Tenant, its guests, licensees or invitees arising from any maintenance, alteration or repair to any portion of the Leased Premises, the building in which it is located or the property upon which it is situate. Tenant grants to Landlord the right to temporarily discontinue utilities or any of them at any such time or times as may be necessary by reason of any such maintenance work, alteration or repair provided Landlord gives reasonable notice of such work. The Landlord agrees to make reasonable effort to schedule such work to minimize disruption to Tenant's operation. 26. Default. If there should occur any default on the part of the Tenant in the performance of any conditions or covenants herein contained or if, during the term hereof, the Leased Premises or any part thereof shall be or become abandoned or deserted, vacated or vacant, or should the Tenant be evicted by summary proceedings or otherwise, the Landlord, in addition to any other remedies herein contained or as may be permitted by law, may either by force or otherwise, without being liable for prosecution therefore or for damages, re -enter the said Leased Premises and again possess the same with or without terminating this Lease; and as Page 12 of 22 Wheeler Restaurant Space Lease Page 13 agent for the Tenant or otherwise, re -let the Leased Premises and receive the rents therefore and apply the same, first to the payment of such expenses and costs, as the Landlord may have been put in re- entering and repossessing the same and in making such repairs and alterations, as may be necessary; and second to the payment of the rents due hereunder. Whether or not the Landlord shall terminate this Lease, the Tenant shall remain liable for such rents as may be in arrears and also the rents as may accrue subsequent to the re -entry by the Landlord, to the extent of the difference between the rents reserved hereunder and the rents, if any, received by the Landlord during the remainder of the unexpired term hereof, after deducting the aforementioned expenses, fees, and costs; the same to be paid as such deficiencies arise and are ascertained each month. In addition, upon any such default, or if Tenant be adjudicated a bankrupt, insolvent or placed in receivership, or should proceedings be instituted by or against the Tenant for bankruptcy, insolvency, receivership, agreement of composition or assignment for the benefit of creditors, or if this Lease or the estate of the Tenant hereunder shall be transferred by virtue of any court proceedings, writ of execution or levy sale, the Landlord may, if the Landlord so elects, at any time thereafter, terminate this Lease, upon written notice to Tenant or to any trustee, receiver, or other person in charge of or acting as custodian of the assets or property of the Tenant. In the event of default, except in the payment of rent or additional rent hereunder, Landlord, prior to the exercise of any of its rights or remedies hereunder, shall give Tenant notice of such default together with a ten (10) day right to cure should such default be in the payment of any other sums due Landlord hereunder or a twenty (20) day right to cure should such default be in any of the other conditions or covenants of this Lease to be performed by Tenant, unless the same by its or their nature require immediate or earlier attention. Upon the giving of such notice, this Lease and the term hereof shall, unless the default shall be cured during the applicable period, end on the date fixed in such notice as if the said date were originally fixed in this Lease for the expiration hereof; and the Landlord shall have the right to remove all persons, goods, fixtures and chattels therefrom, by force or otherwise, without liability for damages. No right of redemption shall be exercised under any present or future law of the State of Colorado in case the Tenant shall be dispossessed for any cause or if the Landlord shall, in any other manner, obtain possession of the Leased Premises in consequence of the violation of any of the covenants and agreements of the Tenant, except for those rights of redemption on which landlord holds a security interest pursuant to Article 9 of the Colorado Uniform Commercial Code. The Landlord shall have a lien paramount to all others, after first lien of the Tenant's Lender on every right and interest of the Tenant in and to this Lease, and on any furnishings, equipment, fixtures, or other personal property of any kind belonging to the Tenant, or the equity of the Tenant therein, on the leased property. Such lien is granted for the purpose of securing the payment of rents, taxes, assessments, insurance charges, liens, penalties and damages herein covenanted to be paid by the Tenant and for the purpose of securing the performance of all of the Tenant's obligations under this Lease. Such lien shall be in addition to all rights of the Landlord given under statutes of this State, which are now or shall hereinafter be in effect. 27. Attorneys' Fees. In the event of any litigation or other action or proceeding between the parties hereto arising out of the performance or non - performance of this Lease, or enforcement of any rights or remedies hereunder, including any indemnities herein contained, the prevailing party shall be entitled in such litigation, action or proceeding to also recover as part of any judgment, award or other relief, its reasonable attorneys' fees and costs incurred. Page 13 of 22 Wheeler Restaurant Space Lease Page 14 28. Delays. Parties agree that time is of the essence. Whenever a period of time is provided in this Lease for either Landlord or Tenant to do or perform any act or thing, neither Landlord nor Tenant shall be liable or responsible for performing any obligation hereunder as a result of any unavoidable delay due to strikes, lockouts, casualties, acts of God, or other governmental regulations or control or other causes beyond such party's reasonable control, and the time for performance specified herein shall be extended for a period of time corresponding to such delay. 29. Mortgage Priority. This Lease shall not be a lien against the Leased Premises with respect to any mortgages or trust deeds now or hereafter placed upon the Leased Premises or the building. The recording of such mortgage or mortgages shall have preference and precedence and be superior and prior in lien to this Lease, irrespective of the date of recording and the Tenant agrees to execute any instruments, without costs, which may be deemed necessary or desirable, to further effect the subordination of this Lease to any such mortgage or mortgages. Tenant shall, upon request, execute any estoppel certificates or attornment agreements that may be required by the holder of any mortgage or trust deed now or hereafter placed upon the Leased Premises or the building or by the Owner of the building in which the Leased Premises are located. A refusal by the Tenant to execute any such instruments shall entitle the Landlord to at once terminate this Lease. Tenant agrees not to record or file this Lease in the real estate records affecting the building in which the Leased Premises is located. Any such recording in violation hereof shall be considered a slander of Landlord's title and a breach of this entire Lease. This covenant shall survive the expiration or earlier termination of this Lease. 30. Cumulative Remedies. The various rights, remedies, options and elections of the Landlord expressed herein are cumulative and the failure of the Landlord to enforce strict performance by the Tenant of the conditions and covenants of this Lease or to exercise any election or option or to resort or have recourse to any remedy herein conferred or the acceptance by the Landlord of any installment of rent after any breach by the Tenant, in any one or more instances, shall not be construed or deemed to be a waiver or a relinquishment for the future by the Landlord of any such conditions and covenants, options, elections or remedies, but the same shall continue in full force and effect. 31. Cleanliness; Waste and Nuisance. a. Tenant shall keep the Leased Premises at all times in a neat, clean and sanitary condition, shall neither commit nor permit any waste or nuisance thereon. Tenant shall store all trash in the containers provided for that purpose. b. Use of Wheeler- supplied trash dumpster and recycling bins shall be done in a responsible and thorough manner, and Tenant shall be responsible for ensuring that its employees comply with rules relating to the use of the dumpster. c. The exterior of the building surrounding the Tenant's Leased Premises shall be vigilantly kept clean of cigarette butts, bottles, glassware, or other materials that in the Landlord's reasonable expectation may have been the result of Tenant's employees, guests, and clients. Page 14 of 22 Wheeler Restaurant Space Lease Page 15 d. In keeping with City of Aspen Ordinance 87 -1976, Section 6.04.070 (Hitching of animals), Tenant, its employees, and assigns shall work cooperatively with Wheeler management, as well as independently, to ensure that guests' or employees' animals, especially dogs, shall not be tied up or otherwise attached to any part of the Wheeler building. e. Employee and guest bicycles shall be attached to an appropriate rack and not the Wheeler Opera House premises when being secured. A bicycle rack is provided on the Mill Street side of the building, and a second bicycle rack is provided across Mill Street on the Hyman Avenue mall. f. Excessive noise in excess of City codes related to db levels, and including that of pre- recorded music, or television broadcasts, . Tenant agrees to work independently to ensure compliance with City codes related to db levels and maintain a reasonable aural environment. g. Tenant understands and hereby consents that from time to time it will be necessary to temporarily locate transportation trucks and/or other vehicles associated with live event production in the parking spaces adjacent to the building north of the intersection of Mill Street and Hyman Avenue, and accepts that this may block the view of the Tenant's business from foot traffic and other prospective clients. 32. Brokers. Each party represents to the other that it has had no dealings with any real estate broker or agent in connection with the negotiation of this Lease. 33. Waiver. No waiver by Landlord or Tenant of any provision of this Lease shall be effective unless in writing nor shall such waiver be deemed a waiver of any other provision hereof, nor of any subsequent breach by Tenant of the same or of any other provision. 34. Surrender of Premises. At the end of the lease period of possession of the Leased Premises by Tenant, as well as at the termination of this Lease, Tenant shall surrender the Leased Premises to Landlord in good condition and repair, excepting for reasonable wear and tear and Acts of God. Tenant shall have the right at the end of the term hereof to, and upon demand by Landlord Tenant shall, remove any equipment, furniture, trade fixtures not affixed to the realty as described in Paragraph 15, and other personal property placed in the Leased Premises by Tenant and Tenant shall promptly repair any damage to the Leased Premises caused by such removal. 35. Governing Law. This Lease shall be construed and enforced in accordance with the laws of the State of Colorado. In the event of any litigation arising out of this Lease, jurisdiction and venue shall rest with any court of competent jurisdiction in Pitkin County. 36. Time of Essence. Time is of the essence with respect to the performance of every provision of this Lease in which the time of performance is a factor. 37. Severability. The terms, conditions, covenants, and provisions of this Lease shall be deemed to be severable. If any clause or provision herein contained shall be adjudged to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, it shall not affect the validity of any other clause or provision herein, but such other clauses or provisions shall remain in full force and effect. Page 15 of 22 Wheeler Restaurant Space Lease Page 16 38. Notices. All notices required under the terms of this Lease shall be given in person or by mailing such notices by certified or registered mail, return receipt requested to the address of the party as shown at the beginning of this Lease, or to such other address as may be designated in writing, which notice of change of address shall be given in the same manner. If not sooner received, any notice given by mail shall conclusively be deemed received three (3) days after the date of certification or registration. 39. Entire Lease. This Lease contains the entire contract between the parties and there are no other agreements, understandings, representations, or warranties except as expressly set forth herein. No additions, changes or modifications, renewals or extensions hereof shall be binding unless reduced to writing and signed by the Landlord and Tenant. 40. References. In all references herein to any parties, persons, entities or corporations, the use of any particular gender or the plural or singular number is intended to include the appropriate gender or number as the text of the within Lease may require. 41. Tenant is an Independent Contractor. This Lease is not a contract of employment. No relationship of employer and employee, joint venture or partnership, exists between Landlord and Tenant or between the Landlord and any employee or agent of the Landlord. Tenant shall at all times be deemed to be an independent contractor. Tenant is not authorized to bind Landlord to any agreements or obligations. 42. Binding Effect. All the terms, covenants, and conditions herein contained shall be for and shall inure to the benefit of and shall bind the respective parties hereto, and their heirs, executors, administrators, personal or legal representatives, successors and assigns respectively. 43. Guaranty. Tenant shall pay to Landlord a security deposit in the amount of twenty thousand dollars ($20,000) to be held in an interest bearing account, as a guaranty of the payments and terms of this Lease. In addition there is a personal guaranty from the members of the LLC of one (1) year as agreed to in the Guaranty of Lease (attached). 44. Additional Leased Premises. In addition to the Leased Premises described above and depicted in Exhibit A, Tenant may be entitled to seasonally occupy, weather permitting, a portion of the City Right -of -Way abutting the Mill Street side of the Leased Premises between the Mill Street entrance to the leased premises and the window well, and between the window well and the stairwell ( "Additional Leased Premises "), for no additional rent during the term of this Lease, subject to the prior approval of the City of Aspen Engineering Department. Tenant shall be responsible for obtaining all requisite permits for Landlord. Use of the Additional Leased Premises shall be specifically conditioned upon the following terms: a. Tenant agrees to use the Additional Leased Premises for the sole purpose of selling and dispensing food or beverages to the public. Such area may be open to the public at least seven (7) hours per day between the hours of 11:30 a.m. and 10:00:00 p.m., weather permitting, but in no event shall food and beverage service be extended beyond 10:00 p.m. Food shall be available in the leased area during all hours it is open to the public. Tenant further agrees to use the premises for no purpose prohibited by the Page 16 of 22 Wheeler Restaurant Space Lease Page 17 laws of the United States, the State of Colorado, or ordinances of the City of Aspen. Further, Tenant agrees to comply with all reasonable recommendations of the City of Aspen relating to the use of the Additional Leased Premises. b. Tenant shall remove any structures installed by Tenant on the Additional Leased Premises promptly when not in use due to seasonal conditions. Failure to remove them within ten (10) days of last use, or on the date the Landlord's Engineering Department made as a condition of its approval, shall result in ownership of the structures to become the property of the City of Aspen and Landlord shall have the right to dispose of said structures as it deems necessary in its sole discretion. c. Tenant agrees to keep said Additional Leased Premises in repair and free from all litter, dirt and debris and in a clean and sanitary condition; to neither permit nor suffer any disorderly conduct or nuisance whatever about said Additional Leased Premises which would annoy or damage, either proximate or remote, occurring through or caused by an alteration to said Additional Leased Premises, or by any injury of accident occurring thereon. Further, Tenant does, by execution of this agreement, indemnify and agree to hold harmless the City of Aspen, its employees, elected and appointed officials, against any and all claims for damages or personal injuries arising from the use of the Additional Leased Premises per the insurance terms and conditions set forth herein. d. All construction, improvements or business fixtures on the Additional Leased Premises shall comply with the following criteria: i. Not be wider than the Mill Street frontage of the business nor extended further than a maximum of five (5) feet from the edge of the building (window well, stairwell and awnings are not considered to be the edge of the building), while ensuring that such extension does not impede pedestrian traffic by leaving a minimum of 58 inches clear at all times. ii. The Wheeler Opera House is on the National Register of Historic Places. No portion of the Tenant's fixtures shall extend beyond the boundaries of the Additional Leased Premises; this shall be construed to include planters, umbrellas while closed or open, any type of lighting fixtures, and any other fixtures of the Tenant No exterior finishes can be modified in any way. iii. The perimeter of the Additional Leased Premises shall be enclosed by a black wrought -iron fence as approved by Landlord, no less than thirty (30) inches in height. Openings in the fence shall not be less than 44 inches wide. If there is a gate which is not self - closing and bi- directional it must be left open and swing inward to prevent obstruction of the pedestrian right of way. These rules are in compliance with state liquor and fire codes. iv. No service facilities, including but not limited to bus trays, hot plates, water dispensing equipment and dish storage shall be located on the Additional Leased Premises. Page 17 of 22 Wheeler Restaurant Space Lease Page 18 v. The extension of fixtures shall otherwise be consistent (in the determination of the City Manager's Office and City Council) with the general design guidelines and design criteria of the adjacent Hyman Avenue Mall. vi. The Tenant shall allow its fixtures and perimeter fencing to remain in place at its own discretion and liability and shall accept and retain full responsibility for any damage to such fixtures and perimeter fencing caused by the operation of police, fire and ambulance vehicles in the performance of their duties, and to hold harmless their duly authorized operators. vii. Neither electric nor gas lights nor electrical conduits are allowed on the Additional Leased Premises. Portable heaters shall be allowed. viii. No signage, including but not limited to advertising on umbrellas, furniture, planters or banners shall be allowed on the Additional Leased Premises, except that menu signs shall be allowed in accordance with provisions of the City of Aspen sign code (menu must be attached to the fence). e. The Additional Leased Premises and improvements, additions and business fixtures thereon shall be maintained and managed by the Tenant. f. Tenant agrees to permit agents of the Landlord to enter upon the Additional Leased Premises at any time to inspect the same and make any necessary repairs or alterations to the building, sidewalks, curbs, gutters, streets, utility poles, or other public facilities as Landlord may deem necessary or proper for the safety, improvement, maintenance or preservation thereof. Tenant further agrees that if Landlord shall determine to make major structural changes to the building or sidewalk which may affect any structures placed within the Additional Leased Premises by the Tenant, that the Tenant, by execution of this Lease Agreement, hereby waives any and all right to make any claim for damages to the improvements (or to its leasehold interest) and agrees to remove any structures necessary during such construction periods. g. Landlord by this demise hereby conveys no rights or interest in the public way except the right to the uses on such terms and conditions as are above described, and retains all title thereto. h. Tenant agrees not to sublet or assign any portion of the Additional Leased Premises. i. Tenant agrees to surrender and deliver up possession of the Additional Leased Premises promptly upon expiration of this Lease Agreement. Page 18 of 22 Wheeler Restaurant Space Lease Page 19 IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year above first written. TE _ NT: ''' By: � . � or, / Title: ,,on_ . I . i f , LANDLORD: THE CITY OF ASPEN APPROVED AS TO FORM: APPROVED AS TO CONTENT: it 67 1 /%4A —na John P. Worcester, Esq., Stev Barwick City Attorney City Manager Page 19 of 22 Wheeler Restaurant Space Lease Page 20 List of Exhibits Appended to Lease Agreement A - Description of Leased Premises Page 20 of 22 Wheeler Restaurant Space Lease Page 21 GUARANTY OF LEASE FOR VALUE RECEIVED, and in consideration for and as an i .ucement • the aforesaid Landlord to make the foregoing Lease with " + i i �!� , as Tenant, the undersigned i l . ,l . A ANS-941Mitrar _ iu /. • r s1 i j avI� unconditionally guarantees the full performa el". observance of all the covenants, conditions, and agreements therein provided to be perfo .r ed and observed by Tenant in an amount equal to one year of the term of the lease, and expressly agrees that the validity of' this agreement and the obligations of the guarantors hereunder shall in no wise be terminated, affected or impaired by reason of the assertion by Landlord against Tenant of any of the rights or remedies reserved to Landlord pursuant to the provisions of the within Lease or by the relief of Tenant from any of Tenant's obligations under the Lease by operation of law or otherwise (including, but without limitation, the rejection of the Lease in connection with proceedings under the bankruptcy laws now or hereafter enacted); the undersigned hereby waiving all suretyship defenses. The undersigned further covenants and agrees that this guaranty shall remain and continue in full force and effect as to any renewal, modification, or extension of this Lease, whether or not the undersigned shall have received any notice of or consented to such renewal, modification or extension. The undersigned further agrees that his liability under this guaranty shall be primary, and that in any right of action which shall accrue to landlord under the Lease, landlord may, at Landlord's option, proceed against the undersigned and Tenant, jointly or severally, and may proceed against the undersigned without having commenced any action against or having obtained any judgment against Tenant. The undersigned further represents to Landlord as an inducement for Landlord to make the Lease, that the undersigned owns 100% all of the entire outstanding capital stock or membership interest of Tenant. It is agreed that the failure of Landlord to insist in any one or more instances upon a strict performance or observance of any of the terms, provisions or covenants of the foregoing Lease or to exercise any right therein contained shall not be construed or deemed to be a waiver or relinquishment for the future of such term, provision, covenant or right, but the same shall continue and remain in full force and effect. Receipt by Landlord of rent with knowledge of the breach of any provision of the foregoing Lease shall not be deemed a waiver of such breach. Except as may be otherwise specifically provided in the Lease subletting, assignment, or other transfer of the within Lease, or any interest therein, shall not operate to extinguish or diminish the liability of the undersigned guarantors under this guaranty; and wherever reference is made to the liability of Tenant named in the within Lease, such reference shall be deemed likewise to refer to the undersigned guarantors. It is further agreed that all of the terms and provisions hereof shall inure to the benefit of the respective heirs, personal representatives, successors and assigns of Landlord, and shall be binding upon the heirs and assigns of the undersigned. Page 21 of 22 Wheeler Restaurant Space Lease Page 22 IN WITNESS WHEREOF, the under • ned guarantor has caused this guaranty to be executed effective as of the / day of , 2011. LLC l/ Members: /(�� i 114 A 4 Address: ±3 f t a,4-1 �l q4?t At, k . i / • Page 22 of 22 µE "— - ►�� :... _ rowland + Broughton \■ r I niinnm _ ....W.. am. Il n n nnm ll WALE ASSAM II II WAR San 11111: "..CUSE°n.a."a'aC'W II Ism 15 DECEMBER 2010 CLIENT MEMO y�- 1"011` II 6 Y TYNUMYm,t 1 � . xWll O Ir. S eFF�IWtlm11 ACHEAATC Ceuta — E - - -- ne noaR u r w li MACIWATIWASTOTTAM = ., �= =a a vE m r A� , II* II I• vAW+\mn NE apnea 11 a ir I! gni IN I 1 w Z WHEELER _ 1 1 TENANT • �■ 11 IMPROVEMENTS MOM yY 3iy . vita i EOM C E GGGG I, G W l .■ 320 EAST HI'MNI AVENUE ._. 1 `mo ASPEN. CO 01011. -- MME Mini i Min. MOM 1 ��.. Immo _.. .. 1 �W _J ME ■ r— 1 1 1 , 1 me \ nog_ una. �, ... PROPOSED \—/ FIRST FLOOR PLAN SCALE 11 NA 11WE IrvwxEUaE ® MST FLOOR RNI - PROPOSED -OPTION 3 � / \L. 1 _ - - ria va nP la \4 EXHIBIT B COST OF LIVING INCREASE CALCULATION a) "Price Index" shall mean the Consumer Price Index - All Urban Consumers (CPI -U) - U.S. City Average - All Items, or a successor or substitute index published or authorized by the United States Department of Labor, Bureau of Labor Statistics. b) The following formula shall be used for determining the adjustment, if any, in the fixed minimum annual rent: "Price Index" for the next fiscal Current Index Number = year (Jan. 1) Base Index Number "Price Index preceding fiscal year (Jan. 1) c) As promptly as practicable after the commencement of the first adjustment year, and thereafter as promptly as practicable after the first day of each succeeding adjustment year, Landlord shall compute the increase, if any, in the cost of living for the year immediately preceding said adjustment year. Such computation shall be made by use of current and base index numbers provided for each adjustment year as set forth in Paragraph b) above. d) In computing increases for each adjustment year the current index number shall be divided by the base index number. From the quotient thereof, there shall be subtracted the integer 1 and any resulting positive number shall be deemed to be the percentage of increase of cost of living. e) The percentage of increase in the cost of living shall be multiplied by the minimum annual rental including increases for the year preceding the adjustment year for which the increase is being computed. 0 The Landlord shall, within a reasonable time after obtaining the appropriate data necessary for computing such increases, give the Tenant notice of any increase so determined, and the Landlord's computation thereof shall be conclusive and binding but shall not preclude any adjustment of the index figures upon which the computation was based and Tenant shall, within sixty (60) days after receiving such notice, notify Landlord of any claimed error therein; provided, however, nothing herein shall be construed to extend the time when rents, as determined by Landlord, are due and payable by Tenant. g) Minimum annual rent for each adjustment year, together with increases calculated in accordance with Paragraphs b) through f) of this Section, shall be due and payable to Landlord in equal monthly installments due on the first day of each calendar month of each adjustment year (retroactive payments then due being payable within thirty (30) days after giving notice thereof by Landlord to Tenant).