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HomeMy WebLinkAboutresolution.council.035-19 RESOLUTION NO. 35 Series of 2019 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A LEASE AGREEMENT FOR THE MAROLT RANCH BY AND BETWEEN THE CITY OF ASPEN, COLORADO AND THE MUSIC ASSOCIATES OF ASPEN, INC. AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE MAROLT RANCH LEASE AGREEMENT ON BEHALF OF THE CITY OF ASPEN,COLORADO. WHEREAS, there has been submitted to the City Council a proposed Marolt Ranch Lease Agreement by and between the City of Aspen, Colorado and Music Associates of Aspen, Inc., a copy of which is attached hereto. NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN,COLORADO: That the City Council of the City of Aspen hereby approves the entry into the Marolt Ranch Lease Agreement by and between the City of Aspen, Colorado and Music Associates of Aspen, Inc., a copy of which is attached hereto and does hereby authorize the City Manager of the City of Aspen to execute the agreement on behalf of the City of Aspen. Dated 2019. �i L G Steven Sk on,Mayor I, Linda Manning, 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 March 11,2019. L da Manning, City Clerk MAROLT RANCH LEASE AGREEMENT THIS LEASE AGREEMENT(the"Lease Agreement")is made this 14th day of February, 2019,by and between the City of Aspen,a home rule municipality incorporated under the laws of the State of Colorado, (hereinafter referred to as"City"or"Landlord")and the MUSIC ASSOCIATES OF ASPEN, INC., a Colorado non-profit corporation (hereinafter referred to as the "MAA" or the "Tenant"). WITNESSETH WHEREAS, the City is the owner of real property and all of the improvements thereon, known as Marolt Ranch, located in Pitkin County, Colorado and described on Exhibit A attached hereto and incorporated herein by this reference("Marolt Ranch"),which property consists of Ninety- Four(94)residential units,together with,but not limited to,a cafeteria,parking,roadway,walkways, landscaping and certain other residential facilities;and, a WHEREAS, the MAA has a right to and does occupy the Marolt Ranch pursuant to a Lease and Agreement dated May 15, 1990(the"1990 Marolt Ranch Lease"),by and between the City,the ! Aspen/Pitkin Housing Authority and the MAA for a period from June I"through August 31St of each year through August 31,2019:and, 1 R WHEREAS,within the Marolt Ranch there is a cafeteria and restaucrant facility(the"Cafeteria j Facility"),complete with seating and dining area,and kitchen, which has been the subject of a lease agreement between the Aspen/Pitkin Housing Authority and the MAA, dated June 1, 1995 (the "Cafeteria Lease");and, WHEREAS, the parties hereto wish to extend MAA's tenancy and use of the Marolt Ranch and the Cafeteria Facility beyond the term of the current Marolt Ranch Lease and the Cafeteria Lease, for one(1) additional ten(10)year base term,with options to extend the base term on the teams and conditions set forth herein. NOW, THEREFORE, for and in consideration of the payments to be made hereunder, and such further consideration of the terns, conditions,covenants and mutual promises contained herein, the parties hereto agree as follows: 1. Lease of Premises --Base Term. City hereby leases to Tenant the Marolt Ranch, consisting ofNinety-Four(94)residential units,the cafeteria and restaurant facility therein and the 11 i music practice room facilities,parking, roadway, walkways and.landscaping located in the City of Aspen, Colorado, (the "Premises") for the period from Tune I" through August 31' of each year commencing June 1, 2020 and terminating August 31, 2029(the"Base Term"),unless extended or sooner terminated as provided herein, subject to the terms and conditions of this Lease Agreement, and further subject to the Exhibit(s)attached hereto and by this reference incorporated herein. The 6 1 t t Lease Agreement does not include three residential units in Marolt Ranch currently rented long term, or the two short-term pool rental units,or the unit currently used as an office by APCIIA. The Base Term of this Lease Agreement may be extended for one (1) additional five (5) year term until August 31,2034 upon the written notice provided by Tenant to the City no later than one year prior to the end of the Base Term. 2. Use of Premises. a. Residential Units. The Premises consisting of residential units shall be used by Tenant to provide summer housing to students,staff,faculty or other participants in its programs. These individuals shall be selected by Tenant, in Tenant's sole and absolute discretion, on rental rates and on other terms and conditions established by Tenant. Such summer housing users shall be re#erred to herein as"Residential Occupants." No other individuals shall be allowed to occupy the residential units covered by this Lease Agreement without the prior written consent of the City. b. Cafeteria and restaurant food service area shall be used to provide residents of Marolt Ranch as well as any and all other customers desiring food services, such food services as deemed appropriate by the Tenant. c. In no event shall Tenant use or operate the Premises for any other purpose without Landlord's prior written consent, which consent may be withheld in Landlord's sole discretion. d. Tenant shall comply promptly with all applicable statutes,ordinances,rules,regulations, orders and requirements relating to the use of the Premises including any rules or regulations of general applicability imposed by the City of Aspen. e. Tenant shall not use nor permit the use of the Premises in any manner that will tend to create a nuisance or tend to disturb other tenants or occupants of the improvements or adjacent properties thereto. It is understood that students will practice their instruments in their units,and in the practice rooms,but will abide by rules regarding quiet hours. f. Tenant and Residential Occupants shall not permit the use of the Premises,or any part of the Premises,to be used for any business purposes or unlawful purpose of any sort. 3. Rent. a. The annual rent '.for the Premises, other than the Cafeteria and Restaurant, shall be $457,968 ("Base Rent")PLUS one additional year of inflationary growth as outlined in Exhibit B for year one. Tenant shall pay Base Rent(as adjusted by the CPI adjustment provisions set forth below)in three equal installments on the first of the month of the lease term,i.e.,June, July and August, commencing on June 1,2020 and continuing thereafter for the remainder of the Base 'Perm. Tenant shall deliver each monthly rental amount payable to"The City of Aspen"at the address set forth in this Lease Agreement. b. In addition, the annual rent for the Cafeteria and Restaurant shall be $15,000 per year (adjusted by the CPI adjustment provisions set forth below)payable on or before June 151 of each year of the lease,commencing on June 1,2020. - -- - - 2 -- c. The Tenant hereby acknowledges that late payment by Tenant to Landlord of rent or other sums due will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which shall be difficult to ascertain. Accordingly,if any bona fide installment of rent or any other sum due from Tenant shall not be received by Landlord or Landlord's designee on or the fifteenth (15th) of'the month after payment is due, Tenant shall pay Landlord a late charge of five percent (5%)on such overdue amount. In addition, any such payment shall incur interest at the rate of eighteen percent(18%)per annum from the date it was due until paid. Interest shall not be incurred ifpayrnent is made within ten days of the date due. 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 other rights and remedies granted hereunder. d. Base Rent CPI Adjustments. The annual rent shall be increased on each anniversary date (June 1) of each year by the percentage increase in the Urban Index during the twelve months ending on May 31 st of each calendar year. (Urban Index and a description of calculating index changes is attached hereto as Exhibit"B".)- 4. Cafeteria. Tenant intends to make certain improvements to the cafeteria (see section 11). This will include installation of kitchen appliances which are the property of the Tenant. It is understood that: a. Kitchen appliances will remain in the cafeteria year-round even though the annual occupancy period for Tenant is only three(3)months. b. Repair,maintenance,and upkeep of all kitchen appliances is the responsibility of Tenant. c. In the event that Landlord enters into an agreement with a third party to rent the cafeteria from September through May(or any portion thereof), Tenant agrees to rent the kitchen appliances to the third party at reasonable terms in order to further the Landlord's rental income goals. 5. Utilities., Tenant shall pay all charges for water, sewer,trash removal,extermination E and pest control attributable to Tenant's three-month annual occupancy period. Tenant shall pay all i charges for telephone,internet,or cable TV charges(far which Tenant shall separately contract),gas, electricity, and any other utility or maintenance charges used by the Tenant in or about the Premises during each three-month annual occupancy period during the Base Term or any extension term of this Lease Agreement. Landlord shall bill monthly for all such charges for the Premises and Tenant shall pay such billed amounts within fifteen(15)days of receipt of such bills,as additional rent. 6. Occupancy of Premises. Tenant shall be entitled to occupy the Premises only for the three-month period from June 1'through August 31"of each year of the Base Term or any extension term of this Lease Agreement. The Landlord retains the right to lease the Premises for the remaining nine months of each year of the Base Term or any extension term of this Lease Agreement, or any portion thereof, upon terms and conditions acceptable to Landlord. However, no such lease shall preclude or interfere with'tenant's occupancy of the Premises from June I"through August 31' of each year of the Base Term or any extension term of this Lease Agreement. 7. Pets on Premises. No occupant of the Premises shall be pennitted to house any dogs i or cats,unless the animal is trained and certified to assist a handicapped or disabled individii d or is a 3 i qualified and approved emotional support animal as recommended by a medical professional. Other animals or birds of any kind shall not be taken into or kept on the Premises without written consent of City which may be granted or withheld in City's sole discretion. Tenant shall be liable for the cost of repair of the damages resulting from or inflicted by an animal harbored or kept on the Premises, whether or not permission has been granted by the City. At a minimum, this shall entail the professional cleaning of all the carpets upon the removal of the pet or the termination of the Lease Agreement, whichever first occurs. Tenant shall be responsible for the presence of any animals in violation of this rule(this includes all animals that may be present,whether owned by an occupant,a friend or relative of an occupant, or some other third-party present on occupant's unit), and will be assessed a fine of$50.00 for every violation of this rule. In addition,the presence of any animals in violation of this rule is considered a violation of the Lease Agreement and may result in the termination or non-renewal of this Lease Agreement. $. Condition of the Premises. The Tenant has examined the Premises and has entered into this Lease Agreement without any representation on the part of the Landlord as to the condition thereof. Tenant is relying upon its own inquiry as to applicable zoning and other land use regulations,if any, governing the pennitted uses of the lease premises. During Tenant's annual three month occupancy period,Tenant shall take good care of the Premises and shall maintain the Premises in good condition and state of repair, and at the end or other expiration of each annual three month occupancy period Tenant shall deliver up the Premises in good order and condition, wear and tear from reasonable use thereof and damage from 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, snow and ice. In case of destruction of,or any damage to the glass in the lease premises, or the destruction of,or damage of any kind whatsoever to the Premises, caused by the carelessness,negligence or improper conduct on the part of the Tenant or the Tenant's agents, employees, guests, licenses,invitees,subteriants or assignees; the Tenant shall repair the said damage or replace or restore any destroyed parts of the Premises,as speedily as possible, at the Tenant's own cost and expense. In connection herewith,on or about September 1St of each year during the term of this Lease Agreement, representatives of the Landlord and Tenant shall meet at the Premises and perform a walk-through inspection.to confirm that the Premises are being delivered to Landlord in the same condition as when Tenant took possession on June 1"of that year, reasonable wear and tear excepted. In this regard,the parties acknowledge that at the end of each annual period of Tenant's occupancy, Tenant shall cause to be made a deep cleaning of the food service area within the Premises. Landlord and Tenant shall also create a"punch list" describing any repairs or additional maintenance necessitated by damages or extraordinary use arising from Tenant's activities not covered by insurance. Tenant shall promptly cause such additional repairs and maintenance to be performed in order to restore the Premises to its condition immediatelyprior to Tenant's taking occupancy that year, reasonable wear and tear excepted.. On or about June 11t of each year during the term of this Lease Agreement, representatives of - 51 the Landlord and Tenant shall meet at the Premises and perform a walk-through inspection to confirm that the Premises are being delivered to Tenant in the same condition as when Tenant delivered the Premises to Landlord on September I" of the previous year,reasonable wear and tear excepted. To the extent any use of the lease premises(including the food service equipment)is made during the period of Landlord's possession of the Premises,Landlord shall cause appropriate cleaning to be made prior to delivering the Premises to the Tenant. 9. Entry and Inspection. City may at reasonable times and upon twenty-four(24)hours notice enter into the Premises for purposes of inspection and repair. In addition, City may at reasonable times and upon reasonable notice show the Premises to prospective tenants at any time during the term hereof This right of inspection shall not be construed to create any obligation upon k City for the maintenance of Premises. In the event actual notice is not obtained,notice,in either case, i shall be deemed to be effective and reasonable twenty-four(24)hours after posting written notice on the front door of the Premises. 10. Assimment and.Subletting. Tenant and Residential Occupants shall not lease, sublease,assign,transfer,mortgage,pledge or otherwise in any way alienate,hypothecate,encumber or suffer all or any part of the Premises or this lease except as contemplated by this Lease Agreement d without the prior written consent of City which consent may be withheld or granted in City's sole, absolute and unrestricted discretion. 11. Alterations. Tenant anticipates improvements to be made to the cafeteria and B restaurant area beginning in September 2019 and to finish prior to June 1,2020. Prior to submission of any application for a building permit necessary for the modification of the premises,Tenant shall provide to Landlord a full set of plans for such renovation or remodeling. The Landlord shall have fourteen(14)days to review and approve such plans. In the event the City does not approve the plans for the remodel, the Tenant may not proceed with such remodeling effort. If Landlord does not provide written notice of objection to the proposed plans for renovation within the time allowed,the plans shall be deemed approved. All proposed renovations and remodeling must receive all necessary permits and land use approvals prior to commencement of construction. Any alterations,additions or improvements,when made or attached to the Premises,shall belong to and become the property of the City and shall be surrendered upon the expiration or sooner termination of this Lease Agreement. Any alterations, improvement or repairs shall be made in a satisfactory and workmanlike manner. Tenant shall not permit any lien or other encumbrance to be filed against the Premises in connection therewith,and shall indemnify the City against such liens and encumbrances.Residential Occupants shall not make any alterations,additions,improvements or repairs to the Premises(other than ordinary maintenance)without the prior written consent of City. If the'Tenant has received approval for such improvements from the Landlord and all appropriate building permits have been issued, then Landlord hereby grants to Tenant and Tenant's designees access to the Premises from September 1, 2019 through June 1,2020. Such access shall be for the sole purpose of completing the renovations that are the subject of this paragraph 11. In the event that the renovations are not completed by June 1,2020,the lease term set forth in this agreement shall,nonetheless,commence and the rent set forth in Paragraph 3,above,shall be due and payable in full. - 5 -- — _- 12. Residential Occupant's and `)('ei ant's Property Remainin2 on Premises. In the event that after the annual occupancy period of this Lease Agreement,i.e.,August 31', or the Lease Agreement is otherwise terminated, or the Premises are abandoned hereunder, and City enters into possession of the Premises and there is within the Premises furniture,furnishings, fixtures, or other personal property of a residential occupant or the Tenant, the City shall have the:right and option without liability to the residential occupant or tenant: 1) to store such property in a warehouse or other storage space provided by City or others at the reasonable storage expense of the residential occupant or Tenant,or 2)to cause such property to be sold at public or private sale with or without notice to the residential occupant or Tenant, at which sale the City may be purchaser, and to apply the proceeds of such sale first to the reasonable incurred expenses of collection or sale and thereafter on any indebtedness due by the Tenant to the City, with any excess over the amounts required for such purposes payable to the residential occupant or Tenant,or(3)in the discretion of the City should such property be deemed by it of small value,said property may be discarded or destroyed. 13. Storage Areas. Tenant acknowledges that Tenant's rental of the Premises does not include any right to or possession of areas on the Premises for storage other than as are specifically assigned to the Premises. The City may from time to time allow Residential Occupants or Tenant to store items in other areas of the Premises subj ect to terms and conditions to be imposed by the city. 1_n connection with the use by Tenant of any storage area(s) associated with Tenant's rental of the premises, Tenant hereby agrees that the City shall not be responsible or liable for any theft, loss, damage,or claim incurred by Tenant to any property of Tenant's located in any storage area. The use of any storage area.by Tenant shall be at Tenant's sole risk and Tenant hereby indemnifies and holds the city harmless from and against any and all claims for such theft,loss,damage or claim incurred by Tenant as a result of Tenant's use of any storage arca. Any items stored Without the consent of the City may be removed and disposed of as the City sees fit and without any obligation whatsoever to Tenant. In no event shall Tenant store any flammable,toxic or hazardous materials in any storage area provided to Tenant by Landlord. Any such storage of flammable,toxic or hazardous materials shall be deemed to be a default under this Lease Agreement. 14. Personal and Real Property Taxes. Tenant shall pay,as additional rent hereunder,all personal property taxes assessed against the personal property used by Tenant and located on the on the Premises for Tenant's annual occupancy period during the Base Term or any extension term of this Lease Agreement_ Likewise,Tenant shall be responsible for any and all sales,use,withholding and other taxes assessed against the Premises for Tenant's business operation therein. The real estate taxes for the Premises shall be the responsibility of the Landlord. 15. Reimbursement. If Tenant or Residential Occupants shall fail to perform an obligation of this Iease, City may,if City so elects,perform such obligations and charge the expense thereof to Tenant as additional rent hereunder. 16. Severable. If any provision of this lease shall be declared invalid or unenfofeeable, the remainder of the lease shall continue in full force and effect.. 17. Attorneys'Fees. The prevailing party shall be entitked to an award of its reasonable attorneys' fees and costs incurred in order to enforce any of the provisions of this Lease Agreement 1 in any action or proceeding instituted by reason of the other party's default hereunder,irrespective of whether an act is commenced to enforce any provision of this Lease Agreement. I 18, Quiet Enioyment. Subject to the terms of this Lease Agreement, and the faithful performance of Tenant's obligations hereunder, Tenant shall have quiet enjoyment of the Premises during the Base Term and any extension term hereof, provided however, that City shall not be responsible for any disturbances caused to Tenant as a result of actions not directly attributable to City, including without limitation, maintenance, and repair, traffic noises, construction noises and other disturbances. 19. Casualty. In case of fire or other casualty, the Tenant shall give immediate notice to City. If all or any portion of the Premises is not habitable as a result of fire, the elements or by any other cause not resulting from Tenants'neglect or default,the obligation to pay rent attributable to the uninhabitable portion of the Premises shall cease until the all or the affected portion of Premises shall be substantially repaired, whereupon the obligation to pay vent attributable to that portion of the Premises rendered uninhabitable by casualty shall resume to the same extent and at the same rate as if the damage had not occurred. However, the obligation to pay rent shall not cease nor shall any reduction in the rentals payment be made during the period that Tenant or Residential Occupants continue to reside in the Premises. In no event,however, shall the provisions of this clause become effective or be applicable if fire or other casualty or damage shall be the result of carelessness, negligence or improper licensees, invitees, subtenants, assignees or successors. In such case, the Tenant's liability for the payment of rent and the performance of all the covenants and conditions and terms hereof on the Tenant's part to be performed shall continue and the Tenant shall be liable to the i City for the damage and loss suffered by the City,including all repairs and rebuilding expenses. City shall not be responsible for any loss or damage of Tenant's or Residential Occupants' personal property. 20. Default. If there shall be a default in the performance of the payment of rent or any part thereof for more than ten (10) days after written notice of such default from Landlord or Landlord's agent to Tenant this Lease Agreement and all rights of Tenant hereunder shall terminate. If there shall be a delinquency by Tenant in the performance of any other covenant, agreement, condition, title or regulation herein contained or hereafter established for more than three (3) days after written notice of such default from Landlord to Tenant, Landlord, or L'andlord's agent, at any time thereafter may terminate this Lease by providing a notice to quit to Tenant,which notice to quit shall be effective upon delivery to Tenant or upon posting on the front door of the Premises. In.that case,this Lease Agreement shall terminate and all rights.of Tenant hereunder shall terminate. l e The abandonment of the Premises by the Tenant shall constitute a default under this Lease Agreement andd all rights of Tenant shall there upon terminate. Prior to expiration or termination Landlord may inspect the Premises as provided in paragraph 11.0 above to determine compliance by Tenant with the terms of this Lease Agreement, including but not limited to condition of Premises. i — - - l Upon termination of this Lease Agreement, pursuant to the preceding subparagraph or otherwise, Tenant shall peacefully surrender the leased Premises to Landlord, and Landlord may, upon or at any time after such termination,without fiurther notice,re-enter the Premises and repossess it by force, summary proceedings, ejectment, or otherwise, and may dispossess Tenant and remove Tenant and all other persons and property from the leased Premises. Tenant shall be responsible for any and all costs and attorney's fees incurred by Landlord in enforcing the provisions contained in this paragraph. At any time after such termination, Landlord may re-let the Premises or any part thereof,in the name of the Landlord or otherwise for such term(which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such conditions as Landlord, at its discretion, may determine, and may collect and receive the rents therefore. Landlord shall in no way be responsible for or liable for any failure to re-let the Premises or any part thereof,or for any failure to collect any rent due upon such re-letting. No termination of this Lease Agreement shall relieve Tenant of Tenant's liability and obligations under this Lease Agreement, and such liability and obligations shall survive any such termination. In the event of any such termination,whether or not the Premises or any part thereof shall have been re-let,Tenant shall pay to Landlord the rent required to be paid by Tenant up to the time of such termination, and thereafter Tenant, until the end of what would have been the term of this Lease Agreement in the absence of such termination,shall be liable to Landlord for,and shall pay to Landlord, as and for liquidated and agreed damages for Tenants' default: The equivalent of the amount of rent which would be payable under this Lease Agreement by Tenant if this Lease Agreement were still in fill force and effect, including charges for all utilities and services as provided in this Lease Agreement, as off set by the net proceeds of any reletting effected pursuant to the provisions of the preceding subparagraph, after deducting all of Landlord's reasonable expenses in connection with such re-letting,including but not limited to all repossession costs, brokerage commissions, legal expenses, attorneys' fees and expenses of preparation for such re-letting. Landlord may also,at its option,and without being liable to Tenant for any damage therefore, remove and store at Tenants' cost, all personal property and effects of Tenant upon the property, withont responsibility for loss or damage,so long as Landlord uses reasonable care in the removal thereof. 21. Annual Occupancy Period Expiration.On August 31'of each annual occupancy period during the Base Term or any extension term or upon termination of this Lease Agreement,pursuant to the preceding subparagraphs or otherwise, Tenant and Residential Occupants shall peacefiully surrender the Premises to the City, and the City may, upon or at any time after such termination, without further notice, reenter the Premises and repossess it by force, sununary proceedings, ejectment,or otherwise, and may dispossess Tenant or Residential Occupants and remove Tenant or Residential Occupants and all other persons and property from the Premises. Tenant shall be responsible for any and all costs and attorney's fees incurred by the City in enforcing the provisions contained ur this paragraph. - 8 - - - - - — 22. Holding Over. Upon the expiration or sooner termination hereof, Tenant shall immediately and without notice from the City surrender possession of the Premises to the City. In the event Tenant or Residential Occupants do not so vacate the Premises,his holding over shall not be deemed a tenancy of any kind or nature whatsoever and Tenant or Residential Occupants shall be subject to eviction proceedings without further notice. For purposes of such proceedings,Tenant shall pay the fair rental value of the Premises for the period of such holding over. The Tenant stipulates that such rental shall be that charged for the most recent rented similar unit in the Premises for under this lease,or that amountprovidedfor in this lease,whichever is greater. Payments made by Tenants) 3 to the City during such holdover shall be credited to against Tenant's obligation to pay the fair rental value of the Premises,but shall not create any rights in tenancy, of any kind or nature whatsoever, and Tenant or Residential Occupants shall remain subject to eviction without further notice.If Tenant or Residential Occupants remains on the Premises,the tenancy so created shall be a tenancy at will. 23. t� Subordination. This Lease Agreement is and shall remain subject and subordinate _ to all mortgages or deeds of trust now or hereafter affecting the Premises or the building in which the g Premises are located. Although the subordination provision of this section shall be deemed automatic, i Tenant shall within five days after demand execute any and all instruments requested by the City to evidence such subordination. Should Tenant fail to do so, Tenant hereby irrevocably appoints the City as Tenant's attorney in-fact to execute those instruments for and on behalf of Tenant. F 24. Indemnity and Insurance. Tenant hereby agrees to and does indemnify and hold the City harmless from and against any and all claims, demands, causes,judgments or liability for any losses or damage to any property of,or any injury or death to,anypersons in or about the Premises during the term of this Lease Agreement or resulting from the operation of the cafeteria, including, but not limited to Tenant or Residential Occupants,Tenant's or Residential Occupants'family,agents, servants,guests,licensees,or invitees;and further,Tenant shall indemnify the City for any payments, i expenses, costs or attorney fees incurred by the City as a result of such losses, damages, injury or i death. i 25. Insurance.Tenant shall procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims,demands,and other obligations assumed by the Tenant pursuant to Section 24 above.Such insurance shall be in addition to any other insurance a requirements imposed by this contract or by law,tenant shall-not be relieved of any liability,claims, demands,or other obligations assumed pursuant to Section 24 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain in umce in sufficient amounts, duration, or types. Tenant shall procure and maintain the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Tenant pursuant to Section 24 above.In the case of any claims- made policy, the necessary retroactive dates and extended reporting periods shall be procured to 1 maintain such continuous coverage. Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00)aggregate.The policy shall be applicable to all premises and operations.The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts),blanket contractual,independent contractors,products,and completed operations. The policy shall contain a severability of interests provision. The policy or policies required above shall be endorsed to include the City and the City's officers and employees.Every policy required above shall be-primary insurance,and any insurance carried by the City,its officers or employees,or carried by or provided through any insurance pool of the City,shall be excess and not contributory insurance to that provided by Tenant. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. Tenant shall be solely responsible for any deductible losses under any policy required above. The certificate of insurance provided by the City shall be completed by the Tenant's insurance agent as evidence that policies providing the required coverages,conditions,and minimum limits are in full force and effect,and shall be reviewed and approved by the City prior to commencement of the Lease Agreement. No other form of certificate shall be used. The certificate shall identify this Lease Agreement and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty(30)days prior written notice has been given to the City. Failure on the part of the Tenant to procure or maintain poheies.providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this Lease Agreement,or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith,and all monies so paid by City shall be repaid by Tenant to City. City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. The parties hereto understand and agree that City is relying on,and does not waive or intend to waive by any provision of this Lease Agreement,the monetary limitations(presently$350,000.00 per person and $990,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 2410-101 et seq., G.R.S., as from time to time amended,or otherwise available to City,its officers,or its employees. 26. Waiver. Failure of the City to declare any default immediately upon occurrence thereof and any delay in taking any action in connection therewith shall not waive such default,but the City shall have the right to declare any such default at any time. 27. Landlord Remodel of Premises. In the event Landlord desires to remodel any portion of the Premises during the term of this Lease Agreement,it may do so,provided it is solely at Landlord's expense and,provided further,that any remodel work commenced by Landlord shall not interfere with or disrupt Tenant's business within the Premises. 28. Signs. The Tenant shall not place nor allow to be placed any signs of any kind whatsoever,upon,in or about the Premises or any part thereof, except of a design and structure and "g in or at such places as may be indicated and consented to by the Landlord in writing. In case the ! Landlord or the Landlord's agents, employees or representatives shall deem it necessary to remove any such signs in order to paint or make any repairs, alterations or improvements in or upon the 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 with all municipal ordinances or other laws and regulations applicable thereto. 29. Exhibits .is Part. of the Lease: }?xhibit A attached hereto is the legal description of the Premises. t 30. Nondiscrimination. Tenant shall not discriminate against any or Residential Occupant or applicant to become a Residential Occupanf because of age, race, color,religion, sex, creed,marital status,sexual orientation,public assistance status,disability,handicap,or nationality or ancestry. l a 31. Termination. In the event Tenant desires to terminate this Lease Agreement for any reason whatsoever,'and provided Tenant is not otherwise in default hereunder at the time it gives notice of termination, Tenant may terminate this Lease Agreement by delivering written notice of termination to Landlord pursuant to paragraph 32,below,together with payment to Landlord of an amount equal to two years rent. In the event of-such termination, this lease shall immediately terminate,Tenant shall deliver possession of the lease premises to Landlord pursuant to paragraph 20, above,and the parties shalt be released from all further rights and obligations hereunder, subject to 6 the rights of Landlord to collect any past due and unpaid rent, additional rent,or sums necessary to repair any damages caused by Tenant pursuant to paragraph 7,above. 32. Notices. Any notice or other communication given or made pursuant to this Lease Agreement will be in writing and will be(i)delivered personally or by courier,(ii)emailed,(iii)sent by overnight express delivery,or(iv)mailed by first class mail,to a party at its respective address set 1 forth below(or at such other address as will be specified by the party by like notice given to the other party): If to City: City of Aspen jl Attn: City Manager 130 S. Galena St. Aspen,CO 81611 IE With a copy to: City of Aspen Attn;City Attorney 130 S. Galena St. Aspen,CO 81611 Email:jirn.true@oityofaspen.com If to MAA: Music Associates of Aspen Attn: Senior Vice President 225 Music School Road Aspen,CO 81611 With a copy to: Holland and Hart,LLP Attn:Torn Todd 600 East Main,#104 Aspen,CO 81611 All such notices and other communications will be deemed given ori the date of personal or local courier delivery,email transmission confirmed by a delivery receipt,delivery to overnight courier or express delivery service, or deposit in the United States Mail, and will be deemed to have been received (i)in the case of personal or local courier delivery, on the date of such delivery,(ii)in the case of telecopy, upon actual receipt, (iii) in the case of delivery by overnight courier or express delivery service,on the date following dispatch,and(iv)in the case of mailing,on the date specified in the return receipt therefor. 33. Miscellaneous. a. Assignment.Except for sub-lease arrangements of the Residential Units contemplated under thepermitted uses of the Premises described in Section 2(a),above,no part or subpart of this Lease Agreement will be assignable by Tenant,except upon written consent of the City. b. Amendment. Except for the Rules and Regulations set forth in Exhibit 1 of this Lease Agreement, this tease Agreement may not be modified except in writing signed by the parties. This Lease Agreement shall be binding upon the successors and assigns of the parties hereto. c. Counterparts. This Lease Agreement may be executed in counterparts, each of which will be deemed original,but all of which,together,will constitute one instrument. d. Interpretation and Governing Law. This Lease Agreement will not be construed against the partywho prepared it but will be construed as though prepared by both parties.This Lease Agreement will be construed,interpreted,and governed by the laws of the State of Colorado 12 jurisdiction for any disputes hereunder shall be in the courts in and of Pitkin.County and the State of Colorado. e. Severability. if any portion of this Lease Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable such portion will be deemed severed from this Lease Agreement and the remaining pants will continue in full force as though such invalid or unenforceable provision had not been part of this Lease Agreement. f. Final Agreement. Unless otherwise expressly provided herein, this Lease Agreement constitutes the final understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, understandings and agreements between the parties, whether written or oral. This Lease Agreement may be amended, supplemented or changed only by a writing signed or authorized by or on behalf of the party to be bound thereby. g. Waivers. The failure of either party to insist in any one or more cases upon the strict performance of any of the other party's obligations under this Lease Agreement or to exercise any right or remedy herein contained will not be construed as a waiver or a relinquishment for the firiure of such obligation,right or remedy.No waiver by either party of any provision of this Lease Agreement will be deemed to have been made unless set forth in writing and signed by that party. h. Successors. The terms, covenants, agreements, provisions, and conditions contained herein will bind and inure to the benefit of the parties hereto,their successors and permitted assigns. i. Headings. The headings in this Lease Agreement are inserted for convenience only and will n not be used to define, limit or describe the scope of this Lease Agreement or any of the obligations herein. j. Construction. 'Whenever in this Lease Agreement a pronoun is used,it will be construed to represent either the singular or the plural,either the masculine or the feminine,as the case will demand. k. Certain Approvals.Unless otherwise expressly stated,all approvals or consents required of either party hereunder will not be unreasonably withheld,conditioned or delayed,and will be in writing. I 1. Cumulative Rights. Except as expressly limited by the terms of this Lease Agreement, all rights, powers and privileges conferred hereunder will be cumulative and not restrictive of those provided at law or in equity. 1 m. References to this Lease Agreement. All references to this Lease Agreement will include all documents and exhibits incorporated by reference. 1j Y if �I 13 IN WITNESS WHEREOF,the parties have entered into this Lease Agreement effective as of the date first set forth above. MUSIC ASSOCIATES OF ASPEN,INC.,a Colorado nonprofit corporation: By. 4-1'�elerizl T- P/ Da e CITY OF A PEN y� O Date ASPEN/PITKIN HOUSING AUTHORITY hereby consents to the termination of its interest in the Lease and Agr ement dated May 15, 1990 and the Lease Agreement dated June 1, 1995. ASPENIP KIN USING Ty HORITY By: l�ti D46 14 EXHIBIT "A" LEGAL DESCRIPTION OF MAROLT RANCH PROPERTY The Marolt Ranch Parcel is defined as: A parcel.of land situated in Section 12, Township 10 South, Range 35 West of the 6"' Principal Meridian, being more particularly described as follows: Beginning at a point being the Southwest corner of a parcel of land as described in Plat Book 12 at Page 1 as filed in the records of the Clerk and Recorder of Pitkin County, thenge along said Parcel line the following three courses: N 33-00-00 W 61.65 feet;thence, S 90-00-00 E 9.11 feet;thence, N 06-42-00 W 308.07 feet;thence, N 41-30-48 W, 367.84 feet;thence, N 32-35-05 W, 163.20 feet;thence, N 65-37-06 E, 70.18 feet;thence, 75.07 feet along the arc of a curve to the left,having a radius of 195.00 feet,a central angle of 22- 03-23, and subtending a chord bearing N 88-14-52 E, 74.60 feet;thence, N 77-13-1.1 E, 99.85 feet;thence, 63.83 feet along the arc of a curve to the left,having a radius of 60.00 feet, a central angle of 60- 57-28, and subtending a chord bearing S 77-37-16 E, 60.87 feet;thence, N 89-06-02 E, 102.77 feet;thence, S 07-11-08 E, 354.01 feet;thence, S 18-46-08 E, 110.00 feet;thence, S 35-24-54 E, 131.13 feet;thence, S 10-57-09 W, 205.98 feet;thence, S 68-35-00 W, 131.59 feet to the point of beginning, said parcel contains 4.300 acres more or less; Having by these presents laid out,platted, and subdivided the same into lots as shown hereon and designated that same as Marolt Mange Subdivision, Amendment No. 2 in the City of Aspen, County of Pitkin, State of Colorado, and do hereby grant to the City of Aspen, County of Pitkin, State of Colorado, for public use, the easements shown hereon for their indicated purposes only; and so further state that this subdivision shall be subject to the Protective Covenants filed and recorded in the Office of the Clerk and Recorder of Pitkin County, Colorado as Reception No. 365254. EXHIBIT"B" CALCULATION OF CHANGES IN URBAN INDEX The term "Urban Index"used herein shall refer to the Consumer Price Index - All Urban Consumers (CPI-U), U.S. City Average, All Items (1967 = 100) compiled by the United States Department of Labor,Bureau of Labor Statistics. By way of identification, the parties agree that the CPI-U index number for July 1993 =432.6. If at the time of computation of rental increases as provided below the Urban Index as defined is not then being currently published, the parties shall mutually select a substitute index which has historically approximated the Urban Index as defined. The parties further agree that the methodology they will use for calculating index changes in the Urban Index is that described in the instruction sheet from the Bureau of Labor Statistics, U.S. Department of Labor,which reads as follows: CALCULATING INDEX CHANGES Movements of the indexes from one month to another are usually expressed as percent changes rather than changes in index points, because index point changes are affected by the level of the index in relation to its base period while percent changes are not. The example in the accompanying box illustrates the computation of index point and percent changes. Percent changes for 3-month and 6-month period are expressed as annual rates and are computed according to the standard formula for compound growth rates. -These data indicate what the percent change would be if the current rate were maintained for a 12- month period. INDEX POINT CHANGE CPI 315.5 Less previous index 303.5 Equals index point change 12.0 PERCENT CHANGE Index Point difference 12.0 Divided by the previous index 303.5 Equals 0.040 Results multiplied by one hundred 0.040 x 100 Equals percent change 4.0